IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 5TH SEPTEMBER 2011 / 14TH BHADRA 1933 AS.No. 210 of 1999() -------------------- OS.67/1996 of I ADDL.SUB COURT, KOZHIKODE .................... APPELLANT(S)/PLAINTIFF: ------------------------------------- CHERODATHIL LAKSHMI ALIAS KUNHI LAKSHMI, D/O. NALUPURAKKAL SANKARAN, NADUVATTOM AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SRI.KODOTH PUSHPARAJAN SMT.PRABHA R.MENON RESPONDENT(S)/DEFENDANTS: -------------------------------------------- 1. NALUPURAKKAL SURENDRAN, S/O. SANKARAN, KALATHINKUNNU AMSOM AND DESOM, KOZHIKODE TALUK. 2. NALUPURAKKAL VIMALA, D/O. SANKARAN, RESIDING AT -DO- -DO- 3. NALUPURAKKAL RAMAKRISHNAN, S/O. SANKARAN, RRESIDING AT -DO- -DO- 4. NALUPURAKKAL SIVARAMAN, S/O. SANKARAN, RRESIDING AT -DO- -DO- 5. THANKAMANI, D/O. SANKARAN, NALLALAM AMOM & DESOM, KOZHIKODE TALUK. 6. NALUPURAKKAL PUSHPARANI, D/O. SANKARAN, KALATHIKUNNU AMSOM & DESOM, KOZHIKODE TALUK. 7. PUDUKUDI SWAPNA, D/O. GANGADHARAN, VALAYANAD AMSOM & DESOM, KOZHIKODE TALUK. 8. PUDUKKUDI PREM KISHORE, S/O. GANGADHARAN, VALAYANAD AMSOM & DESOM, KOZHIKODE TALUK. (DIED) ADDL. R9 TO R11 IMPLEADED. 9. GANGADHARAN, FATHER OF PREM KISHORE, R/AT MULLATH PARAMBU, VALAYANAD AMSOM DESOM P.O. KOMMERI, KOZHIKODE TALUK. 10. SANITHA, WIFE OF PREM KISHORE, R/AT -DO- 11. ASHIN, SON OF PREM KISHORE, (MINOR) -DO- BY GUARDIAN R10 SANITHA. ADDL. R9 TO R11 ARE IMPLEADED AS THE LRS OF THE DECEASED 8TH RESPONDENT AS PER ORDER IN C.M.P. 181/2002 DATED 1.7.2003. ADV. SRI.V.G.ARUN R7 & R8 SRI.P.S.SREEDHARAN PILLAI FOR R1 TO R6 SRI.K.B.SAJEESH FOR R1 TO R6 SRI.C.S.SUNIL FOR R1 TO R6 SMT.C.G.PREETHA FOR R1 TO R6 SRI.M.PRAVEESH FOR R1 TO R6 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09/08/2011, THE COURT ON 05/09/2011 DELIVERED THE FOLLOWING: AS.No. 210 of 1999 APPENDIX P.W.1 : KRISHNAKUMARI. K.V. (EXAMINED BEFORE THE H/C OF KERALA. P.W.2 : C. SIVADASAN (EXAMINED BEFORE THE H/C OF KERALA). EXT.C1 : REPORT SUBMITTED BY KRISHNAKUMARI K.V., ADVOCATE COMMISSIONER BEFORE THE HIGH COURT OF KERALA. EXT. C2 : PLAN SUBMITTED BY KRISHNAKUMARI K.V., ADVOCATE COMMISSIONER APPOINTED BEFORE THE 1ST ADDL. SUB COURT, KOZHIKODE. EXT. C3 : REPORT SUBMITTED BY KRISHNAKUMARI K.V., ADVOCATE COMMISSIONER BEFORE THE THE 1ST ADDL. SUB COURT, KOZHIKODE. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. No. 210 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of September, 2011. JUDGMENT The plaintiff in a suit for partition, who was non- suited by the court below, is the appellant. 2. Late Nalupurakkal Sankaran had 8 children, namely, Surendran, Saraswathy, Vimala, Ramakrishnan, Sivaraman, Pushparani, Thankamani and Lakshmi. Among them, Saraswathy predeceased late Sankaran. The plaintiff and defendants 1 to 6 are the children of late Sankaran. Defendants 7 and 8 are the children of predeceased Saraswathy. 3. Plaint schedule property admittedly belonged to late Sankaran. Of course wife of Sankaran too had a partial interest. She bequeathed her right to the first defendant as per Ext.B6. The case of the plaintiff was that Sankaran died intestate and therefore she was entitled to 1/8 share in the suit property. It is averred in the plaint that A.S.210/1999. 2 she was given to understand that the defendants are putting forward a Will said to have been executed by Sankaran. That Will is not a genuine document and at the relevant time late Sankaran did not have the mental capacity to understand the nature of disposition made by him. Even if there is a Will, it was got executed without Sankaran knowing the nature of the acts done by him. Therefore she claimed her share. 4. Defendants 7 and 8 supported the plaintiff. 5. Defendants 1 to 6 resisted the suit. They put forward Ext.B1 Will said to have been executed by late Sankaran and Ext.B6 will said to have been executed by Madhavi, the wife of Sankaran to non-suit the plaintiff. According to these defendants, the plaintiff was entitled to get only a sum of Rs.10,000/- from the fourth defendant, which he was prepared to pay. On the basis of these contentions, they prayed for a dismissal of the suit. 6. On the basis of the above pleadings, issues were raised by the trial court. The plaintiff did not adduce A.S.210/1999. 3 any oral evidence and had Exts.A1 to A4 marked. The defendants examined D.Ws.1 to 3 and had Exts. B1 to B27 marked. On an appreciation of the evidence in the case, the trial court found that Exts.B1 and B6 Wills are genuine documents and therefore non-suited the plaintiff. The said judgment and decree are assailed in this appeal. 7. In this appeal, learned counsel appearing for the appellant assailed only the finding regarding Ext.B1 Will said to have been executed by late Sankaran. According to learned counsel, the court below was not justified in coming to the conclusion that Ext.B1 Will is a genuine document. Late Sankaran did not have sufficient mental capacity to execute the Will and the execution of the Will is surrounded by suspicious circumstances. Learned counsel would point out that the name of the father of Sankaran is shown as Ayer whereas in several other documents the name is shown as Kuttappu. It is also pointed out that there was no circumstance which compelled late Sankaran to disinherit two of his daughters since he had equal love for all his A.S.210/1999. 4 children. It is also pointed out that going by the evidence of D.W.1, it could be seen that while in one portion of his evidence he would say that the will was recovered from the box of Surendran after his death, in another portion he would say that it had taken back from the Registrar's office by the first defendant. Learned counsel went on to point out that merely by proving the execution of the Will, the burden on the propounder of the Will is not discharged. He had the added burden to remove the suspicious circumstances surrounding the Will and prove that the Will is a genuine document. In support of his contention, learned counsel relied on the decisions reported in H. Venkatachala v. B.N. Thimmajamma (AIR 1959 SC 443), Crystel Developers v. Asha Lata Ghosh (AIR 2004 SC 4980), Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao (AIR 2007 SC 614) and K.Laxmanan v. Thekkayil Padmini (AIR 2009 SC 951). Learned counsel for the appellant pointed out that the principle laid down in the above decisions have not been followed and the court below A.S.210/1999. 5 has misdirected itself both on facts and in law and had wrongly non-suited the plaintiff. 8. Per contra, learned counsel appearing for the respondents pointed out there is absolutely no merit in the appeal at all. Learned counsel went on to point out that the lower court had come to the conclusion that father of late Sankaran was known both as Kuttappu and Aiyaru and the court below had meticulously analysed the evidence and had come to the conclusion that both Kuttappu and Aiyaru are one and the same person. It is also brought to the notice of the court that the case of the plaintiff was that Sankaran, S/o. Kuttappu had impersonated Sankaran, S/o. Ayer. If that be so, it was for the plaintiff to prove the impersonation. Learned counsel went on to point out that the evidence of D.W.2 is sufficient to establish the due execution and attestation of the Will and evidence of D.Ws.1 and 3 leaves one in no doubt that Sankaran was quite healthy, both physically and mentally, at the relevant time. Learned counsel pointed out that it is significant to notice A.S.210/1999. 6 that the plaintiff did not choose to go into the box and give any evidence regarding the mental and physical capacity of Sankaran. Once the evidence of D.Ws. 1 to 3 is accepted, it was for the plaintiff to show it otherwise. Learned counsel then pointed out that suspicious circumstances stood arise out of the execution of the Will and not out of the inconsistencies in the evidence of witnesses when examined before court. In support of his contention, learned counsel relied on the decision reported in Meenakshi Ammal v. Chandrasekharan ((2005) 1 SCC 280). Learned counsel went on to point out that there are cogent and convincing reasons as to why two of the daughters are given only monetary benefits under the Will. One of the daughters, namely, the sixth defendant was handicapped and therefore she was allotted a share along with the third defendant. Learned counsel pointed out that one cannot omit to note that maximum benefit is derived by the fourth defendant, Sivaraman, against whom there are no allegations by the plaintiff at all. The claim of the plaintiff is that Ext.B1 Will is A.S.210/1999. 7 alleged to have been concocted by defendant No.1, the husband of defendant No.2, and D.W.2. If that be so, the first defendant and the husband of the second defendant would have seen that they would get the maximum benefit. That is not so. According to learned counsel, there are absolutely no justifiable reasons to interfere with the judgment and decree of the trial court. 9. After hearing the counsel on both sides, and perusing the records, the question that arises for consideration is whether the finding of the court below that Ext.B1 Will is a genuine document is justified. 10. While the plaintiff would say that late Sankaran died intestate, defendants 1 to 6 would state that he had left behind Ext.B1 Will. 11. The law regarding Will is well settled. Section 63 of the Indian Succession Act deals with the manner in which a Will is to be drawn. It stipulates that the Will has to be attested by two attesting witnesses, who must have seen the executor sign the document and vice versa. But it is not A.S.210/1999. 8 necessary that each of the attesting witness should see the other attesting witness sign the document. 12. As regards the proof of Wills, the provision applicable is Section 68 of the Indian Evidence Act. Proof of Wills is well settled except for the special mode of proof required under Section 68 of the Act. In case a Will is disputed, then it became necessary to examine atleast one of the attesting witnesses to prove the due execution of the Will. If only one of the attesting witness is called to prove the due execution of the Will, then, he has to speak about the factor of the signature by the other attesting witness also. 13. It is trite that the burden of proving the genuineness of a Will is on the propounder. He has to prove that the Will was duly executed by the testator and duly attested. Apart from the above burden, if there are any suspicious circumstance surrounding the execution of the Will, then he has an added burden to explain the circumstances to the satisfaction of the conscience of the A.S.210/1999. 9 court that the Will is a genuine document. However, once the due execution and attestation of the Will are proved, unless there are suspicious circumstances, if the claim of the contesting party is that the Will is vitiated by undue influence, fraud or such other vitiating circumstances, then the burden shifts to that person to assail the Will on those grounds. 14. In the decision reported in H. Venkatachala's case, (supra) it was held as follows: “There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be A.S.210/1999. 10 unnatural, improbable or unfair in the light of relevant circumstances, or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. the presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged. Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstancesmay raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.” A.S.210/1999. 11 15. In the decision reported in Crystal Developers' case (supra) the question as to what constitute suspicious circumstance was considered. In that decision it was held as follows: “Similarly, in the case of Smt.Indu Bala Bose & Ors. v. Manindra Chandra Bose & Anr. reported in (AIR 1982 SC 133), it has been held that a circumstance would be “suspicious” when it is abnormal or is not normally expected in a normal situation or is not expected of a normal person.” 16. In the decision reported in Niranjan Umeshchandra Joshi's case (supra) the proof regarding wills, the burden of proof, the necessity to remove suspicious circumstances and the duty of the court in construing the Will are considered and it was held as follows: “31. 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 in unequivocal terms states that execution of Will must be proved at A.S.210/1999. 12 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 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. 32. 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 be held to have been discharged. But, the onus would be on A.S.210/1999. 13 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 raise, 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. 33. There are several circumstances which would have been held to be described by this Court as suspicious circumstances:- (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 him substantial benefit. 34. We may not delve deep into the decisions cited at the Bar as the question has recently been considered by this court in A.S.210/1999. 14 B.Venkatamuni v. C.J. Ayodhya Ram Singh (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.” 17. In the decision reported in K. Laxmanan's case (supra) the burden of proof, suspicious circumstances and mode of proof were considered and it was held as follows: “Onus of proving the Will is on the propounder. The propounder has to prove the legality of the execution and genuineness of the Will by proving the testamentary capacity and the signature of the testator. When there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the court and only when such responsibility is discharged, the Court would accept the Will as genuine. Even where there are no such pleas, but circumstances A.S.210/1999. 15 give rise to doubt, it is on the propounder to satisfy the conscience of the Court.” 18. Having thus understood the law applicable to the case of Wills and the principles to be followed in construing a Will and its proof, an attempt shall now be made to see whether the propounder of the Will in the instant case succeeded in establishing that Ext.B1 Will is a genuine document. 19. It appears that the suit was preceded by the notice of the plaintiff to the contesting defendants. They had sent a reply, in which the Will was made mention of. In the plaint, all that is stated is that the claim of the defendants that the properties are being possessed in pursuance to the terms of the Will is not correct. According to the plaintiff, from 1984 till 1987 Sankaran was bed ridden. It was further averred in the plaint that he was aged 76 in the year 1984 itself and he was unable to manage his own affairs. It is also stated that he had equal love towards all A.S.210/1999. 16 his children and in all probability even if there is a Will it might have been got executed without the testator knowing the nature of disposition made by him. 20. The contesting defendants examined D.W.2 to prove the due execution of the Will. He is one of the attesting witnesses to the Will. His evidence is of significance. D.W.2 would say that late Sankaran had executed a Will in which he figured as an attesting witness. He would say that the signature seen on Ext.B1 is that of Sankaran and he had seen Sankaran signing the Will. He asserts that the Will was read over to the testator by the scribe and it was thereafter Sankaran had signed in the Will. He then says that he and another witness had signed in the Will. He adds that the testator had seen the attesting witness signing the Will and vice versa and he is clear in his statement that Sankaran had signed the Will after understanding the contents of the Will which was read over to him by the scribe. He would also assert that Sankaran was both physically and mentally fit and healthy at the time A.S.210/1999. 17 of execution of Ext.B1 Will. The only suggestion to his in cross examination is that Sankaran was incapable of executing a Will, which he denied. Most of cross examination was directed against the name of the father of Sankaran whether it is Kuttappu or Ayaru. At any rate, inspite of searching cross examination, nothing could be brought out to discredit the evidence of this witness. 21. Third defendant examined himself as D.W.1. He is one of the propounders of the Will. He too says that his father was quite healthy and fit at the time of execution of Ext.B1 Will. He would assert that Ext.B1 contains the signature of late Sankaran. He would assert that father of late Sankaran was known as Kuttappu as well as Aiyaru. He denied the suggestion to him that Sankaran was so advanced in age so he could not understand the nature of disposition under Ext.B1 and it was got executed by him and others without Sankaran knowing the contents of the document. He also denied the suggestion that Sankaran A.S.210/1999. 18 was bed ridden from 1984 till 1987. He then speaks about the terms of the Will. 22. The evidence of D.W.3 is not of much significance in dealing with the issues involved in this appeal. He has been examined to prove the due execution of the Will said to have been executed by Madhavi, the wife of late Sankaran. There is not much dispute regarding this Will at all. 23. One of the main contentions taken is that Sankaran was bed ridden and he was incapable of understanding the effects of the act done by him at the time of alleged execution of the Will. The stand taken by the plaintiff was that Sankaran was completely bed ridden and this is highlighted as one of the suspicious circumstances in the execution of the Will. 24. Except for saying that Sankaran was bed ridden at the relevant time and incapable of knowing the nature of acts done by him and also that he was unable to perform his own affairs, nothing more is stated in the plaint. A.S.210/1999. 19 No details regarding the illness of Sankaran is mentioned in the plaint and there is also nothing in the plaint to show that Sankaran was so ill as he was unable to move about or to manage his own affairs. The Will is dated 30.6.1984 and Sankaran died on 10.5.1987, i.e. three years after the execution of Ext.B1 Will. One must remember that even going by the case of the plaintiff, Sankaran had equal love for all his children and if that be so, plaintiff might have been visiting Sankaran quite often. If Sankaran was ill, surely she would have taken steps to have medical assistance made available to Sankaran. No evidence whatsoever is produced by the plaintiff to show that Sankaran was under treatment or was in such a state that he was unable to manage his own affairs or to know the nature of things done by him. 25. D.Ws.1 and 2 have given evidence regarding the mental capacity of Sankaran. Even assuming that Sankaran was physically weak, that does not affect the execution of the Will since what is relevant is the mental capacity of the testator at the time of execution of the Will. A.S.210/1999. 20 In other words, the propounder has to prove that the testator had such a state of mind to understand the nature of disposition made by him. Inspite of the evidence given by D.Ws.1 and 2, the plaintiff did not think it necessary to mount the box and establish that the claim made by D.Ws. 1 and 2 regarding the mental capacity of Sankaran is untrue. The result is that the evidence furnished by D.Ws.1 and 2 regarding the mental capacity of Sankaran at the time of execution of Ext.B1 Will remain uncontroverted. The trial court was therefore perfectly justified in coming to the conclusion that at the time of execution of Ext.B1, late Sankaran was in a sound state