IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 17TH JUNE 2011 / 27TH JYAISTHA 1933 AS.No. 789 of 1997() ------------------------------- OS.10/1995 of ADDL.DISTRICT COURT, KOZHIKODE .................... APPELLANT(S): PLAINTIFF ------------------------ M.P.DHARMA RATHNAM, AGED 52 YEARS, S/O. DAMODARAN, PADMA VILLA, ATHANIKKAL IN EDAKKAD, PUTHIYANGADI VILLAGE, KOZHIKKODE TALUK BY ADV. SRI.R.SUDHISH SMT.MANJU SUDHISH RESPONDENT(S): DEFENDANT -------------------------- 1. M.E.RAMANUJAN, 69 YEARS, S/O.ROHINI, RESIDING IN 'ROHINI NILAYAM', VAYALALAM POST, KOTTAYAM TALUK, TELLICHERY. *2. M.E.PADMINI, 70 YEARS, D/O. ROHINI, ROHINI NILAYAM, VAYALALAM P.O., KOTTAYAM TALUK, TELLICHERY .(DIED) *3 SUPPL. M.E. BALASANKARAN, 70 YEARS, ROHINI NILAYAM VAYALALAM P.O., KOTTAYAM TALUK, TELLICHERY (DIED). *4 SUPPL. M.P.SOMARATHNAM, 68 YEARS, RESIDING 'SALEENA', CHUNKAM CROSS ROAD, CALICUT 5, EDAKKAD VILLAGE.(DIED) 5. M.P.DIVYA RATNAM, 60 YEARS, 'SALEENA', CHUNKAM CROSS ROAD, CALICUT 5, EDAKKAD VILLAGE. AS. NO. 789/1997 6. M.P.RAJARATHNAM, 57 YEARS, 'SALEENA', CHUNKAM CROSS ROAD, CALICUT-5, EDAKKAD VILLAGE. 7. M.P.PADMAJA, 69 YEARS, 'PADMAVILLA', ATHANIKKAL, PUTHIYANGADI VILLAGE, CALICUT -5. *ADDL.R8 TO R11 IMPLEADED 8. PADMAVATHI BALASANKARAN, S/O. LATE M.E.BALASANKARAN, AGED 50 YEARS, R/AT ROHINI NILAYAM, VAYALALAM P.O., KOTTAYAM TALUK, TELLICHERY. 9. PATMASANKARI, AGED 35 YEAR, D/O. 35 YEARS, D/O. M.E.BALASANKARAN, DO. DO. DO. 10. SREEKRISHNA, AGED 23 YEARS, S/O. M.E.BALASANKARAN, DO. DO. 11. SIVAN, AGED 19 YEARS, S/O. M.E.BALASANKARAN, DO. DO. *LEGAL REPRESNENTATIVES OF THE DECEASED 3RD RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 8 TO 11 AS PER ORDER DTD. 19.1.2010 ON IA. 774/2007. **ADDL. RESPONDENT 12 TO 14 IMPLEADED 12. MEENAKSHI SOMAN, AGED 71 YEARS, W/O. LATE M.P. SOMARATHANAM, R/AT SALEENA, CHUNKAM CROSS ROAD, EDAKKAD VILLAGE, CALICUT 5. 13. BASANTH SOMAN, AGED 41 YEARS, S/O. M.P. SOMARATHANAM DO. DO. AS. NO.789/1997 14. DAVINA JAYARAJ, AGED 42 YEARS, D/O. M.P.SOMARATHANAM, DO. DO. ** LEGAL REPRESENTATIVES OF THE DECEASED 4TH RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 12 TO 14 AS PER ORDER DTD. 19.1.2010 ON IA. 776/2007. ***IT IS RECORDED THAT R2 DIED AND HER LEGAL HEIRS ARE THE APPELLANT, RESPONDENT NO. 1 AND 3 TO 7 IDE ORDER DTD. 19.1.2010 ON IA. 778/2007. R1 BY ADV. SRI.K.V.SOHAN SRI.K.RAJEEV SRI.B.PREMNATH ADDL. R12 TO R14 BY ADV. SRI.VINOD SINGH CHERIYAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23/05/2011, THE COURT ON 17/06/2011 DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. ........................................... A.S.NO.789 OF 1997 ............................................. Dated this the 4th day of June, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the District Judge, Kozhikode in O.S.No.10/1995. An original petition was filed for letters of administration which on appearance of the defendants was converted into contentious suit and numbered as O.S.No.10/1995. It is the case of the plaintiff that Smt. Sumithra had executed a Will dated 12.5.1987 in his favour and by virtue of the same, he is entitled to get letters of administration. The contesting defendants namely defendants 1 to 3 would contend that she had not executed any Will of that nature and if at all such a Will is there, it is surrounded with suspicious circumstances and therefore, the plaintiff is not entitled to any relief. 2. During the pendency of the appeal, D2 to D4 died and legal representatives of D3 and D4 are impleaded as additional respondents 8 to 11 and additional respondents 12 to 14 and the legal representatives of the second defendant has been recorded. The trial court on an : 2 : A.S.NO.789 OF 1997 exhaustive consideration of the materials arrived at a decision that all is not well with the Will and therefore refused to accept the Will holding that the plaintiff has not proved by adducing satisfactory evidence that Ext.A2 is one executed by the deceased and she had the capacity to execute the same at the time it is alleged to have been executed. The learned District Judge also found that the plaintiff has not been able to remove the suspicious circumstance surrounding the execution of the Will. It is against that decision, the plaintiff has come up in appeal. 3. The learned counsel for the appellant would contend that the court below has failed to appreciate the evidence properly and therefore has committed an error in arriving at a decision regarding the execution and genuineness of the Will. Before embarking upon the factual aspects, it is desirable to note the principles regarding the Will. A classical judgment of the Supreme Court in H. Venkatachala Iyengar v. B.N.Thimmajamma (AIR 1959 SC 443) gives the same. The crux of the decision is that when the propounder puts forward a Will, it is for him to prove the execution of the Will by cogent and convincing : 3 : A.S.NO.789 OF 1997 evidence. It is also laid down that when there is any suspicious circumstance surrounding the execution of the Will is brought out, the propounder has to remove the suspicion and convince the conscience of the court. The Supreme Court also held that since the person who had executed the Will is not available in this world, the court is sitting in the arm chair of the testator and therefore analysis has to be done in that way. With these principles in mind let me evaluate the materials placed before the court. 4. Ext.A2 is an unregistered Will alleged to be executed by Sumithra on 12.5.1987. The Will runs to two pages where find the thump impression as well as signature of the executant namely Sumithra. A perusal of the signature even with the naked eye would convincingly establish that she did not have firmness to hold the pen and execute the documents. It is also recited in Clause 1 of the Will that she is unmarried and bedridden for a long time and she is being looked after by the nephew of the plaintiff namely Dharama Rathnam. As per the Will, entire property which belongs to her is bequeathed in favour of the plaintiff. The Will : 4 : A.S.NO.789 OF 1997 contains three thump impressions and three signatures. The contesting defendants namely D1 and D2 had taken a very strong contention that the Will is not executed by Sumithra and that she did not have the mental capacity to execute the same. When such is the contention and when there is thump impression of Sumithra as well as thump impression of Sumithra produced by the defendants is available before the court, it was the imperative duty of the plaintiff to have sent those thump impressions for comparison. The plaintiff did not take the risk. So far as the signatures are concerned, they are totally unsatisfactory for the reason that it shows that the signature in the first page and second page does not have any resemblance at all. I am referring all these because it has to be remembered that signatures are not properly put. It will indicate about the mental capacity of the person to execute the Will. 5. There is one letter written by D7 in this case to the first defendant which is marked as Ext.B2. It is a letter written on 6.1.987 that is about 4 months prior to the execution of the alleged Will wherein the 7th defendant gives the details of the ailment of Simithra. It is stated therein : 5 : A.S.NO.789 OF 1997 that Sumithra is incapacitated to travel. The word used is Ammamma is not at all well. Then it is stated that every night she passes urine on the ground and over that she removes her sari and puts on it. Then she speaks about the sleeplessness as well as need for the money and also would suggest that the first defendant can take half of her property and give her half. So what is in the mind of these persons are revealed in this letter and importance is attached to the monetary aspect as well. The first defendant is not a person who has no respect or affection to the said Sumithra. He had been continuously sending money orders for her upkeep and maintenance and he is also equally interested in the welfare of Sumithra. It was he who was looking after the property at Tellichery. When the seed of suspicion regarding the incapacity is placed before the court that too in the form of a letter written by D7 to the first defendant and as PW3 is the son of D7, it is very clear that D7 is interested in the case of the plaintiff. An attempt made by the first defendant to examine D7 was opposed on strong legal grounds and it disabled him to examine D7. But D7 by herself did not mount the box and her son come : 6 : A.S.NO.789 OF 1997 and supported the case of the plaintiff. If a person was not sound and as it is seen that she was taking medicines, there was no difficulty to examine the doctor who was treating her and he would have been the best person to speak about the mental capacity as well as physical capacity of Sumithra. No attempt is made at all to examine the doctor. It is the propounder to discharge the burden when suspicious circumstance apparently appears from the materials available. Here the plaintiff has not chosen to do that. 6. The learned counsel for the appellant strongly contends before me that the evidence of PWs 2 and 3 would dispel the suspicion and it has to be accepted. PW2 is an employee of a court and PW3 is the son of D7. Brother of PW3 is an Advocate by profession and he is the person who had appeared for defendants 5 to 7 in the case. PW2 has admitted in evidence in cross examination that he has got connection with the house of PW1 and Adv. Vivek is his close friend. He would further depose that himself and Adv. Vivek and the attesting witness Baby Sivaprasad had studied in Guruvayoorappan College and were friends. It is also stated that Vivek and the attesting witness were : 7 : A.S.NO.789 OF 1997 friends from 1971 onwards. He has spoken about the execution of the Will and the signature. But when he is asked about the details, he was not able to state something. 7. PW3 as stated by me earlier is the son of D7. He would depose that he was present at the time of execution of the Will. According to him, it was Sumithra who had given instruction for the preparation of the Will and he goes to the extent of saying that Sumithra has given instructions for the preparation of the Will. When he is confronted with Ext.B2 letter, he pleads ignorance and would submit that some of the letters appear to be in the handwriting of his mother. But he is very sure about the other things. Sumithra was not able to put her signature properly as evident from the conduct because the money order coupons which are produced before the court bear only the thump impression of Sumithra and the attesting witness to that money order is PW3. If Sumithra was in a position to sign the money order coupons, ordinary she would have signed the same. It is in this background the contents of Ext.B2 assume large importance. She was unable to stand : 8 : A.S.NO.789 OF 1997 for a long time. She was unable to control her movements. She was urinating on the ground and over that she removes her sari and puts on its. All these things show the instability of the mind of Sumithra. 8. Therefore on the materials available suspicion looms large and the materials put in or supplied by the plaintiff are not sufficient to dispel the strong suspicious circumstance. I am conscious of the fact that a Will is not a compulsorily registrable document. The reason suggested for non registration is that as they were very busy and hence unable to register the document. It cannot be accepted as a genuine reason at all. So from the materials available, I have no hesitation to hold that execution as well as suspicious circumstance surrounding the execution of the Will has not been properly proved and explained as found by the learned District Judge. 9. At this point, the learned counsel requests for a remand so as to enable the thump impression to be sent for comparison. Here when the suspicious circumstance remains unanswered, the prayer for remand also cannot be conceded to. The learned counsel would submit that if an : 9 : A.S.NO.789 OF 1997 opportunity is given, he will be able to examine the doctor as well as the scribe. The plaintiff would have thought about the same at the stage of evidence and after a period of 14 years, it may not be possible to fill up the lacuna by giving an order of remand which has been deprecated by this Court as well as the Apex Court . From this discussion, I hold that the appeal cannot succeed. It fails and the same is dismissed but without costs. M.N. KRISHNAN, JUDGE. cl : 10 : A.S.NO.789 OF 1997 M.N. KRISHNAN, J. ........................................... A.S.NO.789 OF 1997 ............................................. 4th day of June, 2010. J U D G M E N T