PUSHPAVATHI Vs. CHANDRARAJA KADAMBA

JUDGEMENT

(1.) This appeal is from the judgment and decree of the Mysore High Court in Regular first Appeal No. 73 of 1962 by which the decree passed by the Sub-Judge, South Kanara in Original Suit No. 53 of 1961 was reversed. The suit was for possession of immovable properties and mesne profits. The properties in suit which are situated in 3 villages of Karkala Taluk, namely, Irvathoor, Miyar and Nallur, belonged to one Shantiraja Kadamba. He died on 21-10-1958. The family was an Aliyasanthana family. But after the passing of the Hindu Succession Act, 1956, the children of his pre-deceased brothers became entitled to the inheritance as Shantiraja Kadamba did not leave behind either widow or a legitimate child. The plaintiffs are the children of the two deceased brothers Jinnappa Kadamba and Devaraja Kadamba. Their claim to the extensive property of Shantiraja was challenged by the five defendants. They claimed all the property in suit under a Will alleged to have been executed by Shantiraja on 10-3-1958 i.e. more than six months before his death. The plaintiffs alleged that the deceased Shantiraja had made no Will and had died intestate. They also alleged that the alleged Will which was put forward by the defendants was a forgery having been brought into existence after Shantiraja's death by the defendants with the help of the scribe and the attesting witnesses. So the only substantial question before the Court was whether the alleged Will dated 10-3-1958 was a valid will executed by Shantiraja.

(2.) It appears that the suit had been originally filed in the Court of the District Munsif, Karkal and the relief sought therein was only for a declaration that the alleged Will was not genuine. Practically all the evidence was recorded before the District Munsif and then it became apparent that the suit for mere declaration might fail if consequential relief by was of possession was not prayed for. So the suit was amended for possession and filed in the court of the Sub-Judge, South Kanara. By agreement between the parties the whole of the evidence which was recorded before the District Munsif was taken on record in the Sub-Judge's Court and the learned Sub-Judge proceeded to deliver judgment after hearing arguments. The point is that the learned Sub-Judge did not have, like the High Court, the benefit of watching the demeanour of the witnesses examined in the case.

(3.) The learned Sub-judge found that there were several suspicious circumstances surrounding the execution of the Will and these suspicions had not been removed by satisfactory evidence. He was of the view that the Will must have come into existence after the death of Shantiraja and the forged Will must have been brought into existence by defendant No. 1 with the help of the other defendants, the scribe and the attesting witnesses. In appeal the High Court came to a contrary conclusion. It held that there was nothing unnatural in the testator giving his estate to the defendants who were closer to him than the plaintiffs. The High Court further held that the scribe and the attesting witnesses were independent and sufficiently disinterested witnesses and there was no reason why their evidence should be discarded. Of the two hand-writing experts examined one on either side, the learned Judges, who put the signature of Shantiraja to a close scrutiny, were more inclined to accept the evidence of the expert examined on behalf of the defendants that the signature on the Will was that of Shantiraj. Accordingly the High Court held that the Will was the valid Will of Shantiraja Kadamba and the defendants were entitled to the suit properties thereunder. In that view the High Court allowed the appeal of defendants and dismissed the plaintiffs'