1. Heard the learned counsel for the appellant as well as the learned counsel for the respondents.

2. In this second appeal, the 4th defendant in O.S.98/2004 on the file of the Addl. Senior Civil Judge & JMFC, Sagar is questioning the judgment and decree dated 13.03.2012 decreeing the suit for partition and also the judgment and decree dated 07.02.2015 passed in R.A.108/2012 wherein the First Appellate Court has dismissed the appeal and confirmed the judgment and decree reserved above passed by the trial Court.

3. The dispute involved in this case relates to the alleged execution of Will in favour of the present appellant. The present appellant claims that her grandmother Nagavenamma executed the Will dated 16.02.1989 in her favour canceling her earlier Will dated 04.01.1989. The relationship of the parties is as under:

GENEOLOGY

Ramakrishna Hebbar (Dead)

Wife: Nagavenamma (Dead)

HS Sreenivas Rao.

(Plaintiff No. 1)

H.R Manjunath Hebbar

(Plaintiff No.2)

Jayalakshmi

(Defendant No.3)

Mahabaleshwara Hebbar.

(Wife: M. Mahalakshmi - Plaintiff No.3)

H.R.Sathyanarayana (Dead)

S.Sudindra Hebbar

(Defendant No.1)

S Gururaj Hebbar

(Defendant No.2)

H.S.Kamakshi

(Defendant No.4)

4. The property in question stood in the name of Nagavenamma who died on 07.03.1989. She is survived by four sons and one daughter. The fourth son H.R.Sathyanarayana died in 1995. The present appellant is the daughter of H.S.Sathyanarayana and grand daughter of Nagavenamma - the alleged testator.

5. The suit for partition is filed by two sons and wife of 3rd deceased son of Nagavenamma claiming partition and separate possession. All the class-I heirs are included in the said suit. The present appellant who is the defendant No.4 in the said suit took a stand that the property devolved exclusively on her after the demise of Nagavenamma in terms of the Will dated 16.02.1989.

6. The first defendant in the said suit who is the grand son of Nagavenamma claimed right over the property on the basis of the alleged Will dated 04.01.1989. He filed a counter claim in the said suit. The counter claim is rejected by the trial Court. Thereafter, the 1st defendant filed an appeal in RA No.132/2012 on the file of the Senior Civil Judge, Sagar. The said appeal in R.A.132/2012 and the appeal filed by the 4th defendant Smt H S Kamakshi were clubbed together and decided by a common judgment dated 07.02.2015. R.A.132/2012 is dismissed holding that the alleged Will dated 04.01.1989 executed by Nagavenamma is not proved in accordance with law. There is no further challenge to the said judgment and decree dismissing R.A.132/2012.

7. Under these circumstances, the only question that needs to be answered in this case is, "Whether the Will dated 16.02.1989 alleged to have been executed by Nagavenamma is proved in accordance with law.

8. This Court vide order dated 16.02.2016 has admitted the appeal to consider the following substantial questions of law:

"A) Whether the Judgments and decrees passed by the courts below holding that the plaint "A" schedule property is the ancestral and joint family property of the parties, which has been purchased by Smt.Nagavenamma, the mother of the plaintiff and later granted by the Panchayat in favour of the said Nagavenamma is sustainable in law

B) Whether the judgments and decrees of the courts below are not hit by the provisions of Section 14 of Hindu Succession Act.

C) And to consider any other question of law which may arise for consideration while hearing the appeal.

9. Question (a) framed on 16.02.2016 is by reason of the findings of the trial Court as well as the First Appellate Court wherein it is held that the property in question is a joint family property.

10. This Court after considering the submissions of the learned counsel for the appellant and the respondents is of the view that the property in question is the property of late Nagavenamma. Both the learned counsel fairly concede this point. Under such circumstances, the questions of law framed on 16.02.2016 do not arise for consideration and based on the contentions raised during the course of hearing, this Court is of the view that substantial question of law relating to the execution of the will dated 16.02.1989 is to be framed. Accordingly, the following substantial question of law is framed:

"Whether the appellant is able to establish that late Nagavenamma executed Will dated 16.02.1989 and the finding of the trial Court as well as the First Appellate Court rejecting the claim relating to due execution of the Will dated 16.02.1989 is contrary to the evidence on record"

11. Heard the learned counsel appearing for the appellant on the substantial question of law framed and also the learned counsel appearing for the respondents.

12. The Learned counsel for the appellant Sri Gopal, would raise the following contentions:

"(i) The Will dated 16.02.1989 is duly established as DW5 - the attesting witness to the said Will is examined and he has withstood the cross examination.

(ii) The scribe of the Will viz., advocate Shashi Bushana Kumar expired and to prove his signature, advocate's son is examined. Therefore, the appellant has complied the requirement of law insofar as proof of the Will is concerned.

(iii) The minor discrepancy in the evidence relating to proof of the Will, should not come in the way of the Court holding that the Will is proved. The attesting witness is examined 21 years subsequent to the execution of the Will. Thus, minor discrepancy in the evidence of the attesting witness should not be construed as suspicious circumstance to disbelieve the Will.

(iv) The exclusion of natural heirs in the scheme of succession by way of Will by itself is not a ground to disbelieve the Will. The very purpose of execution of Will is to interfere in the normal course of succession."

13. Learned counsel for the respondents would raise the following contentions:

"(i) The Will which is alleged to have been executed on 16.02.1989 has not seen the light of the day till the suit was filed in the year 2004.

(ii) The evidence of the attesting witness does not inspire confidence of the Court to say that the Will is duly established.

(iii) Late Nagavenamma who is alleged to have executed the Will dated 16.02.1989 died within a month from the execution of the Will, and same creates doubt about her sound state of disposing mind.

(iv) There was no attempt by the beneficiary under the Will to file an application to get her name entered in the property records based on the Will, till today.

(v) The trial Court has assigned valid reasons to disbelieve the Will and the trial Court has also noted that the Will which is said to have been executed on 16.02.1989 on the face of it appears to be created much later to the date mentioned in the Will."

14. This Court has considered the rival contentions raised by the learned counsel for the appellant and the learned counsel for the respondents.

15. This Court has also perused the records particularly the alleged Will dated 16.02.1989 marked at Ex.D.14 and also the evidence of DW 5 - the attesting witness to the alleged Will.

16. There is no dispute over the fact that testator died on 07.03.1989, within a month after the execution of alleged Will dated: 16.02.1989. In the cross examination, the attesting witness - DW5 has stated that testator used to visit his house very often. When the photograph of Nagavenamma was confronted to him in the cross examination, he was not in a position to recognise, Nagavenamma. The trial Court has considered this reason as one of the reasons to disbelieve the evidence of the attesting witness relating to the execution of the Will.

17. The trial Court has also noticed that the Will dated 16.02.1989 which is marked at Ex.D.14 does not appear to be 21 years old document. Referring to the papers as well as the shade of the ink on the said Will, the trial Court is of the view that the document appears to be a document which is created much later to the date mentioned in Ex.D.14.

18. The trial Court has also noticed that DW.4 in her cross examination has stated that her grand mother has handed over the Will to her during her lifetime in the presence of plaintiffs and the plaintiffs insisted her to give a copy of the Will. Under the circumstances, the trial Court is of the view that absolutely there is no explanation as to why 4th defendant who is claiming to be the beneficiary under the Will of Nagavenamma has not filed any application to mutate her name in the property records based on the alleged Will dated 16.02.1989. The First Appellate Court has also considered the reasonings assigned by the trial Court in disbelieving the execution of alleged Will dated 16.02.1989.

19. The burden is heavy on the propounder to prove the Will. There is no dispute over the settled position, that exclusion of natural heirs under the Will by itself is not a ground to hold that the will is suspicious Nevertheless, if the reasons for exclusion of natural heirs in the scheme of succession under the Will are not properly explained in evidence, the Court would take the circumstance as one of the suspicious circumstances relating to the execution of Will, especially in the back drop of facts this case, where the Will is not produced for nearly 15 years and testator died within 20 days after the execution of the alleged Will and also in the back drop of the contention that testator cancelled the earlier Will dated 04.01.1989. The evidence on record does not indicate as to why the other natural heirs are excluded from the scheme of succession under the Will and no evidence is forth coming from the beneficiary as to why she was preferred over the other heirs. It is also forthcoming that the testator did not live even for a month after the execution of the alleged Will dated 16.02.1989. This adds to the suspicion about sound state of disposing mind of the testator.

20. It is also forthcoming from the records that the alleged will dated 04.01.1989 set-up by the 1st defendant is not established by the 1st defendant and findings of the First Appellate Court dismissing the counter claim of the 1st defendant is also not called in question. The reasonings of the First Appellate Court noting the circumstances that satisfactory reasonings are not forth coming as to why the testator has cancelled the earlier will dated 04.01.1989 and executed the will dated 16.02.1989, cannot be faulted with.

21. The findings of the trial Court as well as the First Appellate Court are based on acceptable evidence on record. Under the circumstances, this Court is of the view that the appellant is not in a position to establish that the appellant is the beneficiary under the Will dated 16.02.1989 alleged to have been executed by late Nagavenamma. The alleged Will dated 16.02.1989 is surrounded by suspicious circumstances and these suspicious circumstances are not dispelled by the propounder of the Will.

22. Under the circumstances, the substantial question of law framed today has to be answered against the appellant and in favour of the respondents/plaintiffs.

23. Hence the following:

ORDER

Accordingly, the appeal is dismissed

Consequently, all pending IAs do not survive for consideration.

Registry to draw the decree.