Jagannatha Shetty, J.
1. This appeal has been preferred by plaintiff against the decree and judgment dated March 21, 1975 made by the Civil Judge, Haveri, in O.S.No. 9 of 1973.
2. Before we deal with the plaint averments it will be convenient to refer to the relationship between the parties to the suit.
We start with Kashinath Naik. He had two wives - (i) Ganga Bai and (ii) Kamalabai. Gangabai died leaving behind her only daughter-Shakubai. Kamalabai had two daughters-(i) Sumitrabai - plaintiff, and (ii) Indirabai - defendant - 2. Sumitrabai has one son and two daughters. Indirabai has two sons and 4 daughters. Madhava rao, defendant-1, is the first son of Indirabai.
Malhar Kulkarni is the husband of Sumitrabai and Neelakantharao is the husband of Indirabai.
Kashinath Naik died leaving behind him the above relations and also lands measuring about 45 acres. After his death, plaintiff and her husband started living in the house of Kamalabai and managed the properties for about 30 years. In 1961 they moved to Ranebennur for the sake of education of their children, Ranebennur is about 10 miles away fromKuppelur, the village in which Kamalabai was residing. It is said that Kuppelur then had no High School.
Madhava rao, defendant-1, ever since his childhood lived with his grandmother,Kamalabai. In 1961, after plaintiff arid her husband left Kuppelur, Madhava rao started managing the properties oi Kamalabai.
On June 24, 1967 Kamalabai died. It is said that she had executed a Will dated June 10, 1967 bequeathing all the properties in favour of Madhava rao. Madhava rao on the strength of that will got his name mutated in the relevant revenue records. On coming to know of this development, plaintiff instituted the suit for partition claiming her legitimate share in those properties
3. Plaintiff has inter alia alleged :
Kamalabai was suffering from jaundice and rheumatic pain since 2 months prior death. She was not in a position to understand the consequences of her action. Madhava rao and his father with their well-wishers secretly and fraudulently obtained the signature of Kamalabai with an evil intention to take all the properties for themselves. They have created an ante-dated Will in the presence of the Sub-Registrar, Rane-bcnnur, and got it registered without making it known to Kamalabai. The said Will was fraudulently got up and late Kamalabai had no intention of bequeathing her properties in favour of Madhava rao Kamalabai was not in a sound and disposing state of mind at the time of execution of the Will. The Will was not binding on plaintiff and it is void and unenforceable.
So stating she has asked for possession of her one-half in the suit properties.
4. Madhava rao in his written statement has denied all the allegations made by plaintiff. While resisting the suit, he has inter alia contended :
Kamalabai was in a sound state of mind when she executed the Will on June 10, 1967. The Will was later registered on June 19, 1967. Kamalabai died on June 24, 1967. Kamalabai was very much attached to Madhava rao since he was the only grandson living with her and managing her properties. She had intense desire that Madhava rao alone should get all her properties. She therefore executed the Will with that intention.
With these and other averments, Madhava Rao has prayed for dismissal of the suit.
5. On these pleadings, the Trial Court framed the following among other, issues :
(1) Whether the deceased Kamalabai was ill when the Will dated 10-6-1967 was executed as alleged in the plaint
(2) Whether the Will has been brought about by fraud and undue influence as alleged ?
(i) Whether Kamalabai was in a sound and disposing state of mind when she executed a Will dated 10-6-1967 as pleaded by the first defendant
6. Plaintiff has examined four witnesses including herself as P.W. 1 and her husband Malhar Kulkarni as P.W. 2. Defendants have examined six witnesses including Madhava Rao as D.W. 4 and two attesting witnesses of the Will as D.Ws. 2 and 3 in addition to the Sub-Registrar, (DW1) who registered the Will. They have produced six documents including the Will marked as Ex. D, 1 as against 13 documents produced by plaintiff.
7. The Trial Court on an appraisal of this evidence has dismissed the suit while upholding the validity of the Will. The conclusion of the Trial Court could be summarised as follows :
The evidence produced by plaintiff regarding the state of health and disposing state of mind of Kamalabai cannot be believed. Kamalabai was fully aware of the contents and consequences of the recitals in the Will, The attestingwitnesses have spoken to the execution of the Will and there is no reason to discard their evidence. The relationship between Kamalabai and plaintiff and her husband was any-thing but cordial and therefore Kamalabai did not give her property to plaintiff. The recitals in the Will adequately support and justify the exclusion of plaintiff from inheriting the property.
Challenging the correctness and legality of these conclusions, plaintiff has appealed to this Court.
8. Mr.V. Krishnamurthi, Learned Sr. Counsel, argued for the appellant. He was very critical about the reasons given by the Trial Court for upholding the validity of the Will. He urged that the Will is bristled with suspicious circumstances. Kamalabai was not ill-disposed towards plaintiff or her children. The reasons given in the Will for excluding them from inheritance are untrue and unsupported by evidence. Madhava rao, who was residing with Kamalabai has taken undue advantage of her physical and mental weakness. He has played a dominant part in the execution of the Will. He has appropriated to himself all ancestral properties of the family by creating the fictitious Will. Mr. Krishnamurthi also challenged the veracity of the attesting witnesses D.Ws. 2 and 3. He urged that their evidence falls short of the requirements of Section 63 of the Indian Succession Act.
9. Per contra Mr. Kulkarni, Learned Counsel for the respondents, justified the conclusions of the Trial Court for dismissing the suit. He also advanced some more reasons in support thereof.
10. In the light of the submissions made by Counsel and on the material on record, the principal question that arises for consideration is whether Madhava rao the propounder of the Will (Ex.D.1) has adduced acceptable evidence to dispel all clouds of suspicion surrounding thereof ?
11. We must first have in mind the principles which govern the proving of a Will. They are well settled by a string of decisions of the Supreme Court. [See : (i) H. Venkatachala lyengar -v.- B.N. Thimmajamma & Others (ii) Rani Puraima Debi & Another -v.- Kumar Khagendra Narayan Deb & Another (iii) Shashi Kumar Banerjee & Others -v.- Subodh Kumar Banerjee and (iv) Ramachandra Rambux -v.- Champabai & Others].
It has been stated and reiterated in all these decisions that the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed by Section 63 of the Indian . Succession Act. Where there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court. The suspicious circumstances may be as to the genuineness of the Will, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the context. In all such cases, the Court would naturally expect the Propounder to remove completely such suspicious circumstances before the document is accepted as the last Will of the testator. There is one other aspect which needs to beemphasised. If the propounder himself takes part in the execution of a Will which confers on him substantial properties, it will be a greater suspicious circumstance which must be properly explained by the propounder by clear andsatisfactory evidence.
12. It is in the light of these principles, we may now proceed to consider the evidence on record. The Will contains the following narration for preferring Madhava rao as the soled legatee to the exclusion of all other legitimate successors to the properties :
1. : AIR1959SC443
2. : 3SCR195
3. A.I.R. 1964 S.C. 539
4. : 6SCR814
The English version of the above recitals is as follows :
'I have got two daughters. Both of then are married. They are fairly well placed in life. My elder daughter has got two male children out of whom you are the eldest. Your younger brother is staying with his father and looking after his family properties. You have been with me from childhood and you. on coming of age are looking after me and my properties satisfactorily.
My second daughter Sumitrabai's husband Malhar Kulkarni was residing with me for a number of years. He has obtained a sale deed in his favour in respect of one land called 'Kammara Kola' and that land is in his possession. He has been benefitted very much out of my proper-ties. He has caused considerable loss to me. For the last 5 or 6 years he has been residing with his wife and children at Ranebennur. During this period too, he was coming quite often to trouble me and asking me to invest in stamp vending business and made me to borrow money promising to repay the same, but he has not repaid the same. He has also not paid the society loan. You have lived with me from your childhood and you have discharged most of the society's loans. Therefore, my seconddaughter and her husband cannot get anything out of my estate, as they have received more than what they deserve.'
13. Let us turn to the evidence to find out whether Madhava rao has satisfactorily established the reasons given in the Will for disinheriting plaintiff and her children.
Madhava rao (D.W.-4) has stated that plaintiff's husband purchased the land R.S. No. 175/1 belonging to Kamalabai under sale deed Exhibit P-II dated June 22, 1940.Kamalabai sold that land after obtaining the written consent of plaintiff and her elder sister i.e., Madhava rao's mother. They gave their consent under a deed which has been produced as Exhibit D-4, The same property was later sold by plaintiff's husband to Krishnachar (P.W-3). That was in 1969 after the death of Kamalabai. P.W-3 has admitted in his evidence that he has purchased R.S. No. 175 from Malhar for Rs. 6,000/-. There was no other transaction between Kamalabai and the husband of plaintiff referred to by Madhava rao. It is not as if Malhar Kulkarni (P.W-2) has suppressed this transaction. He has narrated in detail the circumstances under which he was forced to purchase that land from Kamalabai. He has stated in his evidence that that land was mortgaged by his father-in-law to Basappa Jigali who filed a suit and obtained decree for sale of the property. When the decree was put into execution, Kamalabai asked Malhar Kulkarni to satisfy the decree and save the property. There-upon he purchased the property and paid the decree holder out of the consideration payable to Kamalabai. We do not find anything wrong in this transaction. If Malhar Kulkarni had not purchased the property, it would have been sold by the decree holder, because it was a mortgage decree. Evidently that transaction could not have been put against plaintiff to deny her the legitimate share in the suitproperties. Kamalabai sold the property out of necessity and that too with the written consent of her two daughters although such a consent was not required. For all intentsand purposes, it was a bona fide sale in favour of Malhar Kulkarni. Madhava rao has also not adduced any evidence aliunde to show that Malhar Kulkarni has abused theconfidence reposed by Kamalabai and obtained some advantage. It is, therefore, not correct to state that plaintiff has secured property more than what she would be legitimately entitled to out of the estate of Kamalabai. The recitals in this regard found in the Will appear to be a distorted version.
Secondly, there is no documentary evidence produced by Madhava rao that Kamalabai had incurred some debts or taken some loan at the instance of Malhar Kulkarni and that debt or loan was discharged by Madhava rao. The recitals in this regard also are far from truth.
14. From the material on record, one cannot go with an impression that the relationship between Kamalabai and plaintiff or Kamalabai and plaintiff's husband was not cordial as suggested by Madhava rao. It was, indeed, quite normal. They used to celebrate the occasion with family gathering. Madhava rao has stated:
'....Myself and my parents and Kamalabai have attended the Munji ceremony of Maltesh in Devaragudd in the year 1967 Chaitra ....'
Maltesh referred to above is none other than the son of plaintiff. His thread ceremony was performed a couple of months earlier to the death of Kamalabai. It was performed at Devaragudd a nearby place at Ranebennur. Every family member including Kamalabai had attended the ceremony. If there was strained relationship between Kamalabai and the husband of plaintiff, as alleged by Madhava rao, Kamalabai with her ill-health would not have attended the thread ceremony of plaintiff's son.
15. Let us go a step further and assume for a while that the relationship between Kamalabai and plaintiff's husband was camouflaged with bitterness behind. Would it be natural (sic) alabai to punishforth the daughters and their childrenby excluding them from inheritance? What was the sin committed by plaintiff and her children? What was the in-jury caused to Kamalabai by the brother and mother of Madhava rao Does it not sound like the story of a wolf and lamb? The Will is silent in all these matters. Madhava rao has not explained these unnatural circumstances. At any rate, being aware of the nature and attitude of an Indian mother and grand mother towards children and grand-children, we cannot believe for a moment, that Kamalabai had voluntarily and deliberately chosen Madhava rao to inherit all the family properties to the exclusion of all other kith and kin.
16. When we turn to the evidence adduced by Madhava rao as to execution of the Will, we cannot help being left with more suspicion. Kamalabai at the fag end of her life was not keeping good health - a fact which is not in dispute. There is also a reference to that effect in the Will itself. She was admittedly suffering from rheumatic pains Plaintiff has stated that she was suffering from jaundice, rheumatic and other ailments. It may be an exaggeration. But the fact remains that she was not in a position to move or walk freely. She was totally immobile. She was creeping from one room to another. The Will runs into closely written 8 foolscap pages in Kannada script. The evidence of attestingwitnesses D.Ws-2 and 4 is that there was no draft Will kept ready before the Will was written or dictated by Kamalabai to the scribe. The scribe started writing the Will at 2-30 p.m. and it was finished at 3-30 p.m on June 10, 1967.Kamalabai was not an educated lady. Having regard to her physical disability coupled with lack of education, if not ignorance, the form and contents of the Will are suggestive of the fact that it could not have been written at her dicta-tion. The Trial Judge appears to have lost sight of thisimportant circumstance. Madhava rao did not examine the scribe who alone could have clarified the matter. The recordshows that the scribe Hanumantrao was cited as a witness, but was not examined. He has been kept away from the Court.
17. Even the evidence of attesting witnesses D.W-2 and 3, does not inspire confidence. D.W-2 has stated thus :
'....Kamalabai has executed a Will in favour of Deft. No 1. Myself, Deft. No. 7, Kamalabai, Deft. No. 2, Hanumant rao were present when the Will was written .... I have signed to the said Will ....'
He has not named D.W-3 as the one who has witnessed the writing of the Will. That impliedly means D.W-3 was not present when the Will was written. He is also aninterested witness in the sense that his son was married to the sister of Madhava rao. D.W-3 Neelakanta has admitted that Kamalabai was sitting on her bed both at the time ofexecution and registration of the Will, According to him, she was weak and suffering from rheumatic pains. Both of them have asserted that Kamalabai signed the Will although there is no signature of Kamalabai anywhere in Exhibit D-l. We find only her thumb impressions in Exhibit D-l.
Mr. Kulkarni, Counsel for Respondents, however, submitted that the parties hail from a district where people generally use the word 'Sahi' (Sign) even for the act of affixing thumb impression and in support of his submission, he has pointed out the statement in the plaint in which plain-tiff has stated that Kamalabai has signed the Will. Be that as it may, the absence of evidence of the scribe creates a lot of doubt in the mind of the Court as to the mental capacity of Kamalabai to dictate at a stretch such a lengthy deed without the assistance of others. His evidence would have been of immense use to find out whether Kamalabai had executed the Will of her own free will.
18. There is yet another aspect which Madhava rao has not satisfactorily explained to the satisfaction of the Court. Madhava rao has played a dominant part in the execution ofthe Will. Kamalabai, even according to Madhava rao, did not confide With anyone else to make a Will. According toMadhava rao, she disclosed her intention to execute the Will on June 9,1967. On the next day, Madhava rao secured the scribe and the attesting witnesses. A week later he sent Mallar Krishnaji Nadagir to Ranebennur to request the Registrar (D,W-l) to go over to the residence of Kamalabai. The Sub-Registrar came to the house of Kamalabai. Madhava rao was present at the time of registration of the Will. He has thus played a predominant part in the execution of the Will. He has also kept the Will sub-rosa. He has not even informed his father about the Will in his favour till Kamalabai died.
The Will in every respect appears to be unnatural and suspicious. There is no clear and satisfactory evidence to explain the unfair, unnatural and improbable conduct of Kamalabai and Madhava rao.
19. In the result, we allow the appeal, reverse the judgment and decree of the Court below and decree the suit as prayed for. There shall be a preliminary decree for partition and separate possession of one half share to plaintiff in the suit properties. It is needless to state that other half shall go to Indirabai. She could ask for separation of their share by paying the required Court-fee.
There shall be an enquiry as to profits of the properties in the possession of defendant-1 under Order 20, Rule 18 C.P.C.
In the circumstances of the case, we make no order as to costs in this appeal.
20. Upon concluding the dictation, Mr.Kulkarni, Learned Counsel for respondent-1, prayed for a certificate for appeal to the Supreme Court.
We do not think that the case involves any substantial question of law of general importance which needs to be decided by the Supreme Court.
The certificate prayed for is, therefore, refused.