Dayanandi Vs. Rukma
D. Suvarna and others
J U D G M E N T
G.S. Singhvi, J.
appeal is directed against the judgment of the learned Single Judge of the
Karnataka High Court whereby he allowed the appeal filed by respondent No.1,
reversed the judgment and decree passed by Ist Additional Civil Judge, Mangalore
(hereinafter referred to as, `the trial Court') and decreed the suit filed by her
for partition and separate possession of her share in the suit property.
suit property was owned by Singa Gujaran, father of respondent No.1, appellant
and respondent Nos. 2 to 6. About 3 months and 10 days before his death, Singa Gujaran
executed Will dated 25.5.1987. He bequeathed the property specified in item
No.1 of the Schedule attached to the Will to one of his four daughters, namely,
Kalyani (respondent No.3) and the property specified in item No.2 jointly to
the other daughters, namely, Dayanandi (appellant), Rukma (respondent No.1) and
Deena (respondent No.2).
one year of the demise of Singa Gujaran, respondent No.1 filed suit for
partition and separate possession of her share in plaint Schedule `B' property.
She pleaded that her father had executed Will dated 25.5.1987 and bequeathed plaint
Schedule `A' property to respondent No.3 Kalyani and plaint Schedule `B'
property to other daughters but by taking advantage of the acute illness of the
father, the appellant and respondent No.2 manipulated the execution of another Will
depriving her of share in the property.
the written statement jointly filed by them, appellant and respondent No.2 did not
deny the execution of Will dated 25.5.1987 by Singa Gujaran but they questioned
the genuineness and validity of the Will 3relied upon by respondent No.1 and pleaded
that after executing the Will, the deceased had made alterations and thereby
disinherited respondent No.1. They further pleaded that Singa Gujaran executed another
Will dated 25.8.1987, in which respondent No.1 was not given any share because
she did not attend funeral of the mother and even when the testator visited
Bombay in May, 1987, she did not come to meet him. According to the appellant
and respondent No.2, at the time of execution of the second Will Singa Gujaran
was in a sound state of mind and he consciously denied any share in the property
to respondent No.1. They claimed that respondent No.1 has filed suit for
partition and possession of her alleged share in the suit property by taking
advantage of the testator's subsequent illness and his inability to speak or
the pleadings of the parties, the trial Court framed the following issues:
a. "1. Whether the suit
is bad for non-joinder of necessary parties? (deleted)
b. 2. Whether the plaintiff
proves that Late Singa Gujaran executed a Will dated 25.8.1987 and whether it
was the last and effective Will of the Late Singa Gujaran?
c. 3. Whether defendants
No. 1 and 2 prove that their father Late Singa Gujaran executed the Will dated 25.8.1987
and whether it is the last and effective Will of Singa Gujaran?
d. 4. Whether defendants
No.1 and 2 prove the Panchayat alleged in para 9 of the written statement and whether
the plaintiff accepted the jewellery? (deleted)
e. Whether the
defendants 1 and 2 also prove that rents are being collected by Amarnath and
spending for maintenance of property, payment of tax and to look after Ravindra
who is congenitally mentally retarded and is dumb?
f. Whether the plaintiff
is entitled to claim a share in the rental income of buildings situated in plaint
"B" scheduled property?
g. Whether the plaintiff
is entitled to partition and separate possession of 1/3rd share in plaint `B'
scheduled properties as claimed?
h. To what reliefs are
the parties entitled."
support of her case, respondent No.1 examined herself and 5 other witnesses including
PW-5 Dr. J. Subba Rao and produced 11 documents which were marked as Exhibits
P.1 to P.11. She also got produced original Will dated 25.5.1987 (Exhibit P.1) from
the appellant. The appellant examined herself as DW-1 and produced the second
Will which was marked as Exhibit D.1.
analyzing the pleadings of the parties and the evidence produced by them, the trial
Court held that execution of Will dated 25.5.1987 is proved but observed that
by virtue of the alterations made in that Will, the deceased has consciously disinherited
respondent No.1. The trial Court noted that the names of four persons were mentioned
in Exhibit P.1 in respect of the second item of the Schedule but the name of
respondent No.1 Rukma was deleted and total number of the beneficiaries was
The trial Court
referred to the statement of respondent No.1 that her father had shown Exhibit
P.1 without any correction as also the alleged admission made by her in response
to a question put in the cross-examination and observed: "16. PW-1 in the
chief-examination, appearing on page No.3 states that her father had shown
Ex.P.1 to her and when she had seen there was no insertion or correction noted
in Ex.P.1, but she has not stated that the correction or deletion was made by defendant
No.1. In the cross examination, appearing at page 7, PW-1 specifically admits that
the documents writer before completing the document will mention the
corrections made in the document. She states that she did not notice the corrections
made in Ex.P.1. She admits that her father Singa Gujaran affixed LTM on Ex.P.1.
Further admission of
PW-1 appearing in the form of question and answer on the face depict that the said
corrections and deletions appearing in Ex.P.1 was made before the contents were
read over to Singa Gujaran. In this regard, I am inspired to extract the
testimony of PW-1 appearing in the form of question and answer made not in her
cross examination, which reads thus: Question: Is it not that the striking off
and the correction at the end of the document made at the time of preparation
of the document by the scribe? Answer: Striking off and the correction were
written at the time when the document was read over to my father. (True and
correct English Translation of Kannada Portion).
Thus the answer given
by PW-1 appearing in the cross- examination itself suffice to conclude that the
corrections made in Ex.P.1 were within the knowledge of Singa Gujaran and when the
scribe read over the contents of Ex.P.1, those corrections were found in Ex.P1.
In this regard the testimony of PW-5 may be recollected, who in the chief-examination
itself has deposed that the contents of Ex.p1 were read over by the scribe to Singa
Gujaran, who admitted the same and affixed his LTM. This shows that, after the name
of plaintiff `Rukma' was deleted and the corrections were made, so as to bequeath
to 3 persons instead of 4 persons, Singa Guajan by understanding that the name of
Rukma was deleted and the `B' schedule property was to be bequeathed only to defendants
1 to 3, affixed his LTM.
After giving answer
as extracted supra, PW-1 realised and further deposed that she gave such answer
in confusion, but there was no such confusion as a clear cut question was put
to her and she gave a very clean answer and the same has been recorded." The
trial Court also discarded the testimony of PW-5 by making the following
observations: "The plaintiff examined PW-5 to prove Ex.P.1 and also to convince
the court that the corrections made in Ex.P.1 deleting the name of the plaintiff
as afterthought by defendant No.1, whereas the said correction was not found
when Singa Gujaran affixed his LTM, but in this regard the plaintiff failed to convince
that fact, because PW-5 not supported to that extent. When Ex.P.1 was
confronted to PW-5, he has deposed that the contents of the same were read over
to Singa Gujaran by the scribe, who admitted the contents and then affixed his LTM.
This witness states that he also read over the contents of Ex.P.1 and states
`After having read
this, what stated in Ex.P.1 now was in fact written. Question:-1 Whether in Ex.P.1
on the first page the word, `nalvarige' was struck off and the word `moovarige'
was written in pen at that time? Ans:- I do not know about it. Question:-2 Whether
in the second page the word, `Rukma' was struck off and on top of it `3' as
written in pen and in the next line the word, `nalvaru' was struck off and the word,
`moovaru' was written in pen at that time? Ans:- I do not know about it also. (True
and correct English translation of Kannada portion).
Thus, the testimony
of PW-5 goes against the assertion of the plaintiff, because PW-5, who is a
doctor and who was treating Singa Gujaran has clearly deposed that whatever the
contents appear now in Ex.P.1, were very much present when Singa Gujaran
executed it, thereby he has ruled out the possibility of any corrections or alterations
made after execution of it by Singa Gujaran.
He has not deposed
that the corrections noted in Ex.P.1, were not present at the time of execution
by Singa Gujaran, but to the questions put to him as extracted above, he has shown
ignorance, but his first part referred supra, unequivocally depict that the contents
of Ex.P.1 which are now existing, including the corrections and alterations, were
available at the time of execution by Singa Gujaran." The trial Court
finally held that respondent No.1 was not entitled to any share in the suit
property and accordingly dismissed the suit.
the appeal filed by respondent No.1, the High Court framed the following
points: "1) Whether the alternation/deletion of the plaintiff's name in
the first Will Ext.P.1 was done prior to its execution by the executant or not?
2) Whether the finding of the court below that the second Will Ext.D-1 is proved,
is justified or not?"
High Court first considered the issue whether corrections/alterations made in Exhibit
P.1 existed when the testator appended his thumb impression, referred to the evidence
produced by the parties, noticed Section 71 of the Indian Succession Act, 1925 (for
short, `the Act') and observed: "A bare perusal of the original of Ext.P.1
discloses the first alteration is found at page No.1 in the last second and
third line, where the name of Rukkamma has been struck off and subsequently in place
`to four persons' is struck off and the word `to three persons' is inserted in
page No.2 and in third line the word Rukkamma is deleted and in the fourth line
`to four persons' is struck off and `to three persons' has been inserted.
As required under Section
71 of the Indian Succession Act, 1925 no signature of the testator is made in the
margin or at some other part of the Will or near to such alteration or at the foot
or end or opposite to a memorandum referring to such alteration. Therefore,
when such alteration has not been made in the manner indicated under Section 71
such alterations will not have any effect. Secondly, as to the question whether
said alterations were made prior to the execution of the Will or subsequent to
the execution of the Will there is absolutely no evidence adduced by either of
However, an attempt is
made on the part of the respondents counsel to point out the evidence of PW-1 wherein
she has stated that the said corrections are made at the time when it was read
over to her father whereby meaning that after alterations were made it was read
over to the executant and he affixed his LTM in token of such alterations also.
It is this admission which has been taken note of by the court below to hold
that the said alterations were there before execution and therefore, the Will has
to be executed with the said alterations. It is nobody's case that PW- 1 was
present at the time of the execution of Ext.P.1 In fact, realising the mistake committed
by her an attempt is made subsequently to explain it.
But it is clear that
her admission has no legal basis as she was not present at the time Ex.P1 was executed.
If the evidence is excluded from record, there is no other evidence placed on record
by the defendant to demonstrate that the said alteration was made prior to the execution
of the Will. In fact, the doctor, attesting witness PW- 5 is unable to answer a
pointed question whether such alterations were there when the Will was executed
and when he attested the Will. In the aforesaid circumstances, no importance could
be given to the so called admission of the plaintiff to hold that the said alterations
were there before executing the Will.........."
High Court then considered the question whether Singa Gujaran had voluntarily
executed the second Will (Ext. D1), analysed the evidence produced by the parties
including statements of the doctors examined by respondent No.1 and answered
the same in negative. The High Court also dealt with the reasons put forward by
the appellant and respondent No.2 to justify the alleged decision of Singa
Gujaran to disinherit respondent No.1 and observed: "On the face of it the
said reason given for disinheriting the plaintiff do not appear to be genuine.
The mother of the plaintiff died in the year 1985.
If his father was upset
because she did not attend the funeral in 1985, in 1987 when he was making the
will he would not have given a share in the B-schedule property to the plaintiff
under Ex.P.1 and that cannot be made a ground to disinherit the plaintiff in
the second will when under the first will a specific share has been given to
the plaintiff. In between the first will and second will hardly the gap is
three months. The case advanced by the defendant is after making the first will
his father went to Bombay to the second defendant's house and the plaintiff did
not visit him. Absolutely no material is placed before court to substantiate
the said case. The said case is highly impossible because the material on
record disclose that on 11lh of August 1987 his father was admitted to Tara
Clinic which fact was totally denied by the defendant in her reply notice.
It is to demonstrate
the said fact the plaintiff has examined three doctors as witnesses. Their
evidence has remained unchallenged and ultimately the defendant also admits
that the father was admitted to Tara Nursing Home. The evidence on record
disclose that on 11th of August 1987 when the father was admitted in the
hospital after examination when it was found that he was suffering from stomach
cancer probably as it was at advanced stage the doctor advised the parties to
take him back to the house as no useful purpose would be served by keeping him
in the clinic. Therefore, after examination he was brought back to the house and
no treatment was given.
The evidence of his
grandson PW-6 who is son of third defendant gives an indication of his state of
health. At the time of attesting the testator was in the nursing home. He
states that on 11th of August 1987 he was admitted to the nursing home and on 13th
he was discharged. The doctors informed them that the deceased is at the
advanced stage of cancer and they cannot give any treatment. Therefore, three
persons lifted him to the car and brought him back to the house. When he was
brought to the house from the hospital he was in unconscious state and he was
not taking any food. Dr. Subbarao was visiting the house.
After he was taken to
Tara Clinic he was not in a position to walk. In fact, the said witness and his
mother was staying next doors to the house where Singa Gujaran 11 was staying.
In the cross-examination of DW-1 she admits that her relationship with her mother
was cordial. Under these circumstances, the materials on record disclose that at
the time Ext. D-1 was alleged to have been executed by the executant he was
suffering from stomach cancer and his health was not in good state. It is 14
days after his admission to the nursing home the said will has come into existence.
Fourteen days thereafter he has died. It cannot be said that under these
circumstances he was in a sound state of disposing state of mind to execute
have heard learned counsel for the parties and perused the record. We shall
first consider the question whether the hand written endorsement made at the
end of the typed Will (Exhibit P.1) was made at the instance of the testator before
he affixed his left thumb mark and whether the High Court committed an error by
reversing the finding recorded by the trial Court on this issue.
63 and 71 of the Act which have bearing on the decision of the first question
read as under: "63. Execution of unprivileged Wills.- Every testator, not being
a soldier employed in an expedition or engaged in actual warfare, or an airman
so employed or engaged, or a mariner at sea, shall execute his Will according
to the following rules:-
(a) The testator
shall sign or shall affix his mark to the Will, or it shall be signed by some
other person in his presence and by his direction.
(b) The signature or
mark of the testator, or the signature of the person signing for him, shall be
so placed that it shall appear that it was intended thereby to give effect to
the writing as a Will. (c) The Will shall be attested by two or more witnesses,
each of whom has seen the testator sign or affix his mark to the Will or has
seen some other person sign the Will, in the presence and by the direction of
the testator, or has received from the testator a personal acknowledgement of
his signature or mark, or of the signature of such other person; and each of
the witnesses shall sign the
Will in the presence
of the testator, but it shall not be necessary that more than one witness be
present at the same time, and no particular form of attestation shall be
necessary. 71. Effect of obliteration, interlineation or alteration in unprivileged
Will. - No obliteration, interlineation or other alteration made in any unprivileged
Will after the execution thereof shall have any effect, except so far as the words
or meaning of the Will have been thereby rendered illegible or undiscernible,
unless such alteration has been executed in like manner as hereinbefore is required
for the execution of the Will:
Provided that the
Will, as so altered, shall be deemed to be duly executed if the signature of
the testator and the subscription of the witnesses is made in the margin or on
some other part of the Will opposite or near to such alteration, or at the foot
or end of or opposite to a memorandum referring to such alteration, and written
at the end or some other part of the Will."
analysis of Section 63 shows that the testator must sign or affix his mark on
the Will or the same shall be signed by some other person as per his direction
and in his presence. The signature or mark of the testator or the signature of
the person signing for him shall be placed in a manner which may convey the intention
of the testator to give effect to the writing as a Will, which is also required
to be attested by two or more persons, each of whom must have seen the testator
sign or affix his mark on the Will or some other person sign the Will in the presence
or as per the direction of the testator.
If the witness has
received a personal acknowledgment from the testator of his signature or mark
or the signature of other person signing on his behalf, then it is not necessary
that both the witnesses shall simultaneously remain present. The section also lays
down that no particular form of attestation is necessary.
plain language of Section 71 makes it clear that any alteration made in an
unprivileged Will after its execution has no effect unless such alteration has been
executed in the same manner in which the Will is executed. The proviso to this
section carves out an exception and lays down that such alterations shall be
deemed to be duly executed if the signature of the testator and the
subscription of the witnesses is made in the margin or on some other part of
the Will opposite or near to such alterations or at the foot or end or opposite
to a memorandum referring to such alterations and written at the end or some
part of the Will.
careful scrutiny of the pleadings of the parties and the evidence produced by
them shows that Will Exhibit P.1 was scribed by Narsappayya and was witnessed
by PW-5 Dr. J. Subba Rao and B.V. Amin. Respondent No.1 was not present at the
time Exhibit P.1 was scribed and executed by Singa Gujaran by putting his left
thumb mark. In his testimony, PW-5 stated that the contents of Exhibit P.1 were
read over to Singa Gujaran by Narsappayya and he understood the same. PW-5
expressed ignorance about the corrections/alterations made in the Will i.e. scoring
out of the word `four' and writing of word `three' as also scoring out the name
of respondent No.1 Rukma. He then stated that Singa Gujaran was suffering from
stomach cancer and when he sent the patient to Dr. Prabhakar in
July/mid-August, he was finding it difficult to eat. Later, Dr. Prabhakar
referred the patient to Dr. Ballal who confirmed that he was suffering from
have gone through Exhibit P.1, which was got produced by respondent No.1 from
the appellant. Four corrections have been made on pages 1 and 2 of this
document. The figures written in letters (four) were substituted with numbers
(3) and the name of respondent No.1 was scored out (page 2). At the end of the
Will, the testator appended his left thumb mark.
On the right side of
thumb mark a line has been written with the ink pen/ball pen suggesting that the
corrections/alterations were made prior to putting of left thumb mark by the
testator. However, the space between the last line of the typed Will (in
Kannada) and what was written with the ink pen/ball pen leaves no manner of
doubt that the writing on the right side of the thumb mark was made after execution
of the Will.
corrections/alterations had been made before the testator had appended his left
thumb mark, there was no reason why the line showing deletion of the name of
respondent No.1 and corrections in the figures were not reflected in the typed
Will and why the line was inserted in the little space left between the
concluding portion of the Will and the space where the left thumb mark was put
by the testator. Therefore, we approve the view taken by the High Court that
the corrections/alterations made in Exhibit P1 cannot be said to have been duly
attested by the testator as per the requirement of Section 71 of the Act and
respondent No.1 is entitled to share in the property specified in Schedule `B'
appended to the plaint.
next question which merits consideration is whether Exhibit D.1 was duly executed
by Singa Gujaran and, therefore, the first Will will be deemed to have become redundant.
Admittedly, Ext. D1 was propounded by the appellant and respondent No.2 and was
contested by respondent No.1, who specifically pleaded that by taking advantage
of the ill health of the father, the appellant and respondent No.2 conspired and
manipulated 16execution of the second Will purporting to disinherit her.
respondent No.1, at the time of execution of the second Will, Singa Gujaran was
seriously ill and was not in a sound state of mind so as to understand the
implications and consequences of his actions. In support of this assertion,
respondent No.1 examined Dr. B.R. Kamath (PW-2), Dr. Prabhakar Rao (PW-3) and
Dr. C.R. Ballal (PW-4) apart from PW-5 Dr. J. Subba Rao. All of them categorically
stated that Singa Gujaran was suffering from acute stomach cancer and he was
not in a position to eat. The statement of PW-6 is also significant on the
issue of health of the executant.
This witness gave out
that the executant was taken to the car by three persons and they brought him
back to the house in an unconscious state of mind and he was not taking any
food. PW-6 also gave out that the executant was not in a position to walk. The
appellant and respondent No.2 relied upon the testimony of PW-5, who had been
examined by respondent No.1 to prove the execution of the Will Exhibit P.1. In
his cross examination PW-5 disclosed that as per his knowledge, Singa Gujaran
had made two Wills and he was a witness to the second Will as well which, according
to him, was also scribed by Narsappayya.
According to PW-5,
the testator had affixed left thumb mark on Exhibit D.1 and he had signed the
Will as a witness in the clinic. What is significant to be noted is that PW-5 did
not say that Singa Gujaran had affixed left thumb mark in his presence and that
he had put his signatures as witness in the presence of the testator. As to the
state of health of the executant, PW-5 categorically stated that he was suffering
from acute stomach cancer and was not in a position to eat or walk.
It has come in the
evidence of the parties that the executant was admitted in Tara Clinic on 11.8.1987
and when the doctor attending him found that cancer was at an advanced stage,
they advised the parties to take him home. It has also come on record that just
14 days after the execution of the second Will, the executant died. Therefore,
it is not possible to find any fault with the finding recorded by the High Court
that the execution of Exhibit D.1 was highly suspicious.
is also apposite to observe that if Singa Gujaran had consciously decided to
disinherit respondent No.1 in the first Will by appending his left thumb mark after
corrections/alterations were made and the name of respondent No.1 was deleted, there
was no reason for him to execute the second Will. In her evidence, the
appellant and respondent No.2 could not offer any tangible explanation as to
why it became necessary for her father to execute the second Will after he had
already disinherited respondent No.1. This also supports the conclusion that execution
of Exhibit D.1 was not a voluntary act of the testator.
may now advert to the two reasons put forth by the appellant and respondent No.2,
which did not find favour with the High Court, to substantiate their plea that the
testator had consciously disinherited respondent No.1. The first reason was
that respondent No.1 did not attend the funeral of her mother and on that count
the father was upset. On the face of it, this reason does not sound plausible. It
is an admitted position that the mother of the parties died in 1985. If the
father was upset with respondent No.1 on the ground that the latter had not
come to attend the funeral of the mother, then he would not have given any
share to her in item No.2 of the Schedule appended to Ext. P1. However, the
fact of the matter is that the testator did give share to respondent No.1 along
with two other daughters.
It is a different
thing that some manipulative alterations were made in Ext. P1 giving an
impression that before putting his left thumb mark, the testator had
consciously disinherited respondent No.1. The second reason was that respondent
No.1 did not come to attend him during his visit to Bombay in May, 1987. In
this context, it is important to bear in mind that the appellant and respondent
No.2 did not adduce any evidence to prove that the testator had visited Bombay
between 25.5.1987 i.e. the date on which the first Will was executed and 11.8.1987
when he was admitted in the nursing home.
That apart, it was
highly improbable that the testator, who was terminally ill, would have gone to
Bombay for the purpose of treatment. Therefore, the so called failure of respondent
No.1 to meet the testator during his visit to Bombay cannot be relied upon as a
ground for accepting the version of the appellant and respondent No.1 that he
was upset with respondent No.1 and decided to disinherit her by executing Ext.
the result, the appeal is dismissed. The parties are left to bear their own
[Asok Kumar Ganguly]