IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 RSA.No. 1128 of 2003(A) --------------------------------- AS.317/2000 of IST ADDL.DISTRICT COURT, THRISSUR OS.2661/1998 of PRL.MUNSIFF COURT,THRISSUR .................... APPELLANTS/APPELLANTS/DEFENDANTS ------------------------- 1. DEVASSYKUTTY S/O. DAKKAN PETER, ROSA BAZAR, VIYYUR VILLAGE, THRISSUR TALUK. 2. VANAJA W/O. DEVASSYKUTTY, ROSA BAZAR, VIYYUR VILLAGE, THRISSUR TALUK. 3. THANKAM @ PARUKUTTY AMMA, D/O. KUNJIKRISHNAN PANICKER, DO.DO. *ADDL. A4 IMPLEADED. 4. RANJINI, D/O. THANKAM @ PARUKUTTY AMMA, NETHYAMADATHIL HOUSE, VIYOOR P.O., THRISSUR DISTRICT. *ADDL. 4TH APPELLANT IS IMPLEADED AS THE LR'S OF DECEASED 3RD APPELLANT AS PER THE ORDER DTD. 28.5.2009 IN IA. 923/2009. BY ADV. SRI.D.ANIL KUMAR SRI.D.ANIL KUMAR RESPONDENT(S): RESPONDENTS/PLAINTIFFS. --------------------------- 1. VISALAKSHY AMMA, D/O. KUNDUVALAPPIL, MEENAKSHY AMMA, OLARIKKARA, ARANATTUKARA VILLAGE, THRISSUR TALUK. 2. AJITHKUMAR S/O. CHANDRASEKHARAN, OLARIKKARA, THRISSUR. 3. LATHA D/O. CHANDRASEKHARAN, KUNDUVALAPPIL HOUSE, OLARIKKARA, THRISSUR. R1 TO R3 BY ADVS. SRI.R.S.KALKURA, SRI.M.S.KALESH , SRI.HARISH GOPINATH , SRI.V.VINAY MENON, SRI.M.AJAY (IRUMPANAM). THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2010, THE COURT ON 29/06/2010 PASSED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 1128 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of June, 2010. JUDGMENT The defendants, who suffered a decree for recovery of possession and mesne profits, are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit properties admittedly belonged to one Bharathy Amma. The plaintiffs claimed rights over the property on the basis of Ext.A4 dated 4.4.1997, a Will said to have been executed by late Bharathy Amma. According to the plaintiffs, Bharathy Amma let the defendants reside in two rooms in the building temporarily since they were constructing a house nearby. After the death of Bharathy Amma, even though the defendants were directed to surrender possession of the room, they did not do so. That necessitated the suit. R.S.A.1128/2003. 2 3. The defendants resisted the suit. According to them, deceased Bharathy Amma was bed ridden about two years before her death. She was unable to move her limbs and could not manage her daily pursuits without the help of someone. The defendants took up the task of looking after Bharathy Amma and as a token thereof, the defendants were orally given permission to reside in the house till the death of the third defendant. According to the defendants, Bharathy Amma was incapable of executing any Will and that the Will now put forward by the plaintiffs is a concocted and fabricated one. Based on these contentions, they prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws.1 and 2 and documents marked as Exts.A1 to A4 from the side of the plaintiffs. The defendants had D.Ws. 1 and 2 examined. Both the trial court as well as the lower appellate court found the Will to be genuine and therefore decreed the R.S.A.1128/2003. 3 suit. The said judgments and decrees are assailed in this Second Appeal. 5. Though several questions of law have been formulated in the Memorandum of Second Appeal, learned counsel appearing for the appellants pressed only one point for consideration at the time of hearing of this appeal. According to learned counsel, there is no evidence or proof of proper attestation of the Will and the courts below were not justified in accepting the Will. Elaborating on his argument, learned counsel pointed out that even though one of the attesting witnesses has been examined, he has not spoken about the attestation of the Will by the other attesting witness. The other attesting witness has not been examined also. Therefore, the Will has to fail. In support of his contention, learned counsel relied on the decision reported in Janki Narayan Bhoir v. Narayan Namdeo Kadam (AIR 2003 SC 761), Benga Behera v. Braja Kishore Nanda (AIR 2007 SC 1975), Rur Singh v. Bachan Kaur (2009(1) KLT SN 48) and Yumnam Obgbi tampha R.S.A.1128/2003. 4 Ibema Devi v. Yumnam Joykumar Singh ((2005) 4 SCC 780). 6. Learned counsel for the respondents on the other hand pointed out that this issue was never raised before the courts below and it is raised for the first time before this court. It is also pointed out that the evidence of P.W.2, one of the attesting witnesses, is clear regarding the attestation of the Will. Her evidence is sufficient to show that the Will has been properly attested by the attesting witnesses. It is pointed out that it is not necessary to examine both the attesting witnesses, and that is not contemplated by the relevant provisions of the Evidence Act. All that the law requires in a case where the Will is relied on is that one of the attesting witnesses will have to be examined to prove the due execution of the Will and that has been done in the case on hand. The propounder has discharged the burden cast on him. Learned counsel appearing for the respondents relied on the following decisions in support of his contention: R.S.A.1128/2003. 5 i) H. Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443), ii) Varghese v. Oommen (1994 (2) KLT 620) iii) Simon v. George (2003(1) KLT 718) iv) George v. Varkey (2004(1) KLT 21) v) Kathrikutty v. V.J. Pappoo (2005(2) KLJ 303) vi) Daulatram v. Sodha ((2005) 1 SCC 40) vii) Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao (AIR 2007 SC 614) viii) Apolinde D'Souza v. John D'Souza ((2007) 7 SCC 225) ix) Laxmanan v. Padmini (2009(1) KLT 29) 7. Both the courts below have considered the validity of the Will said to have been executed by Bharathy Amma and they came to the conclusion that the evidence of P.Ws. 1 and 2 are sufficient to show that the Will was infact executed by Bharathy Amma and she had a sound disposing mind at the relevant time. The courts below found that there was no suspicious circumstance surrounding the execution of the Will. The Will was thus accepted. R.S.A.1128/2003. 6 8. As rightly pointed out by the learned counsel for the respondents, it does not appear that the issue now raised before this court has been agitated before the courts below. Nevertheless being a question of law, it needs to be considered. 9. Before going into the question of law, the evidence of P.W.2, the attesting witness may be referred to. He is one of the attesting witnesses to the Will. He has clearly stated that he had seen Bharathy Amma affixing her signature on Ext.A4. He also says about him having signed the Will in the presence of Bharathy Amma. He said that the other witness had also signed. He has stated in categoric terms that Bharathy Amma signed the Will after the same was read over to her and she was convinced about the contents. He would also say that the attesting witness too heard the contents of the Will being read out to Bharathy Amma. 10. Section 59 of the Indian Succession Act, mentions about persons who are capable of executing a R.S.A.1128/2003. 7 testamentary deed. Section 63 deals with the execution of the unprivileged Will. They read as follows: "59. Person capable of making Wills.- Every person of sound mind not being a minor may dispose of his property by Will." “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. © 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 R.S.A.1128/2003. 8 the testator a personal acknowledgement of his signature or mark, or 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.” The provision deals with persons who are competent to execute a testamentary document. It says, any person of sound mind and who is not a minor may dispose of his property. As per Section 63, 1) Will shall be in writing, 2) the testator shall either sign or affix his mark to the Will or 3) it may be signed by some other person in his presence and by his direction, 4) the signature or mark of testator or the person so directed shall appear in such a manner that it was intended to give effect to the writing as a Will and 5) it shall be attested by two witnesses, who have seen the testator signing the Will or has received an acknowledgement from him about the execution of the Will R.S.A.1128/2003. 9 and also that each of the attesting witness shall sign in the presence of the testator. 11. It needs to be noticed that while in the case of a testator, signature or mark or acknowledgment of signature or mark or sign is sufficient. In the case of an attesting witness he has to sign the document as an attesting witness. It is not necessary that each attesting witness should see the other sign the Will. 12. Section 59 deals with the person who can execute a will and Section 63 deals with the execution of the testamentary document, ie., the procedure in drawing up of a Will. 13. Section 68 of the Indian Evidence Act deals with the mode of proof of an attested document. It deals with a special mode of proof in case of documents which are to be compulsorily attested. The provision reads as follows: “68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at R.S.A.1128/2003. 10 least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.” Section 69 provides for a situation where no attesting witness can be found. Section 70 deals with a case where the execution is admitted by the person, who executed the document and Section 71 deals with a situation where the attesting witness denies the execution. Section 68 of the Indian Evidence Act lays down the mode of proof of a Will by calling atleast one witness. It does not set out what is required to be proved. The provision only stipulates that such a document shall not be used in evidence until or unless at least one of the attesting witness has been R.S.A.1128/2003. 11 examined. That however has to be ascertained with reference to Section 63(c) of the Indian Succession Act. 14. The law regarding proof of Wills is well settled. The onus probandi in all cases where a person set up a Will lies on the propounder of the Will and he must satisfy the conscience of the court that the instrument is the last will of the testator, he had a sound disposing state of mind at the relevant time and the document reflects the true intent of the testator. Apart from proving the above facts, if there are suspicious circumstances surrounding the Will, the propounder has an added burden to remove the suspicious circumstance to the satisfaction of the court. As the Will often speaks after the death of a person, a certain amount of solemnity is attached to the proceedings and the courts usually adopt a very cautious approach. In the decision reported in H. Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443) it was held as follows: “Section 68 deals with the proof of the execution of the document required by law to be R.S.A.1128/2003. 12 attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relied on a document in a Court of law. Similarly, Ss.59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression “a person of sound mind” in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? did he understand the R.S.A.1128/2003. 13 nature and effect of the dispositions in the will? did he put his signature to the will knowing what is contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of will. It would prima faie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S.63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.” It was also held that “The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove R.S.A.1128/2003. 14 the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.” In the decision reported in Simon v. George (2003(1) KLT 718) it was held as follows: “Of course, the appellant attempted to substantiate his case contending that the registration itself is sufficient to indicate that the Will has been executed for that purpose. The decisions reported in Varghese v. Oommen (1994 (2) KLT 620) and Irudayam Ammal v. Salayath Mary (AIR 1973 Mad. 421) had been relied on. True, the receipt of registration or certificate from the Registrar is sufficient to indicate that a document has been properly executed and registered. It can only be in respect of a Will which has been duly proved as provided either under S.68 or 69 of the Evidence Act in the absence of proof in terms of mandatory statutory requirements, it cannot be taken that the Will has been proved. The former among the cited cases R.S.A.1128/2003. 15 is not, therefore, an authority. In the other case cited, two persons had signed, though not as attesters; they were taken as the attesters and Will has been taken as duly proved. It was in spite of that, relevance of certificate or registration was referred to. That is, thus a case where there was proof in terms of S. 68 itself. In this case, no such evidence is forthcoming. So the decisions cited cannot be applied to the fact frame of this case.” In the decision reported in George v. Varkey (2004(1) KLT 21) it was held as follows: “To be a valid Will, apart from genuineness of the signature and testamentary capacity, it should also be proved that S.63(c) of the Indian Succession Act, 1925 is complied with. Attestation by two witnesses is compulsory. What is necessary is to call for the purpose of proving the execution on of the attesting witnesses, if he is alive. So the obligation is only to call at least one of the attesting witness, if he is alive, to the Court for proving the Will. But even if he denies the Will, if by other evidence it is proved that there is proper attestation, the Will can be R.S.A.1128/2003. 16 accepted. Court is free to believe or disbelieve him after analysing the entire evidence and deposition of attesting witness is also to be scrutinised by the Court like deposition of any other witness. Even if the attesting witness examined denies proper attestation, it is for the Court to decide whether the Will was duly attested considering the entire evidence. Appraisal of evidence is the duty of the Court.” In the decision reported in Kathrikutty v. V.L. Pappoo (2005(2) KLJ 303) it was held as follows: “Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act provide that the will shall be attested atleast by two witnesses and that while proving the will atleast one among them shall have to be examined. In a probate proceedings it is the duty of the propounder to show that the “will was signed by the testator; that he was at the relevant time in sound disposing state of mind; that he understood the nature and effect of disposition and had put his signature to the testament of his own free will and that he had signed it in the presence of the two witnesses who attested in his presence and in R.S.A.1128/2003. 17 the presence of each other” (See Sreedevi v. Jayaraj Shetty (AIR 2005 SC 780)” In the decision reported in Daulat Ram v. Sodha ((2005) 1 SCC 40) it was held as follows: “In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the Will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so.” R.S.A.1128/2003. 18 In the decision reported in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao (AIR 2007 SC 614), it was held as follows: “Section 63 of the Indian Evidence Act lays down the mode and manner in which the execution of an unprivileged Will is to be proved. Section 68 postulates the mode and manner in which proof of execution of document is required by law to be attested. It is in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Indian Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable. R.S.A.1128/2003. 19 The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may e held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document. There are several circumstances which would have been held to be described by this Court as suspicious circumstances:- R.S.A.1128/2003. 20 (i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will. (ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances. (iii) Where propounder himself takes prominent part in the execution of Will which confers on his substantial benefit. We may not delve deep into the decisions cited at the Bar as the question has recently been considered by this Court in B.Venkatamuni v. C.J. Ayodhya Ram Sing (2006(1)SCALE 148), wherein this court has held that the court must satisfy its conscience as regards due execution of the Will by the testator and the court would not refuse to probe deeper into the matter only because the signature of the propounder on the Will is otherwise proved.” In the decision reported in Apoline D'Souza v. John D'Souza ((2007) 7 SCC 225) it was held as follows: R.S.A.1128/2003. 21 “What should be the mode of execution of a will has been laid down in Section 63