IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 22ND JULY 2011 / 31ST ASHADHA 1933 AS.No. 591 of 1996() -------------------- OS.157/1992 of SUB COURT, KASARAGOD .................... APPELLANT(S): --------------------- 1.K.YAMUNA, AGED 54 YEARS, W/O.N.LAXMANA, HINDU, LANDHOLDER, RESIDING AT “RAMA NIVAS”, KANVATHEERTHA CROSS ROAD, KUNJATHUR VILLAGE AND POST, (VIA) MANJESHWAR, KASARAGOD TALUK AND DIST. 2.K.BHAVANI, AGED 51 YEARS, W/P.KORAGAPPA, HINDU, LANDHOLDER, RESIDING AT DASAPPA COMPOUND, KOTTARA, MANGALORE TALUK, D.K.DISTRICT, KARNATAKA STATE. 3. K.PADMINI, AGED 48 YEARS, W/O.SANJEEVA, HINDU, LANDHOLDER, RESIDING AT PUTHANGADIKATTE, MANGALORE TALUK, D.K.DISTRICT, KARNATAKA STATE. BY ADV.SRI.T.G.RAJENDRAN RESPONDENT(S): -------------------- 1. GANGU, AGED 74 YEARS, WIDOW OF KRISHNA SAPALYA. 2. K.VARADA RAJU, AGED 38 YEARS, S/O.KRISHNA SAPALYA. (BOTH ARE HINDUS, IANDHOLDERS, RESIDING AT BANGALAY HOUSE, KUNJATHUR VILLAGE AND POST, VIA., MANJESHWAR, KASARAGOD TALUK AND DISTRICT). ADV. SRI.K.G.GOWRISHANKAR RAI THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12/07/2011, THE COURT ON 22.7.2011 DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- A.S. No.591 of 1996 ----------------------------------------------- Dated 22nd July, 2011. J U D G M E N T Joseph Francis, J. This appeal is filed by the plaintiffs 1 to 3 in O.S.157/1992 on the file of the Sub Court, Kasaragod. Respondents 1 and 2 herein are the defendants 1 and 2 in that suit, which was filed by the above plaintiffs for partition. 2. The case of the plaintiffs is briefly as follows : The plaint A schedule properties originally belonged to deceased Krishna Saphalya and his wife and children of tenancy right under M.Ramachandra Shanbogue's family. Krishna Saphalya obtained the same for and on behalf of his family and the land tribunal has issued a purchase certificate in his capacity as head of the family. Krishna Saphalya died on 15.2.1990 at the age of 88. For some years prior to his death he was confined to house and could not move out due to rheumatism and parkinson disease. These ailments had affected his thinking capacity also. Plaintiffs are married and are residing away. During the last years of Krishna Saphalya defendants were residing with him. Plaintiffs were regularly A.S.591/1996 2 visiting the father and contributing their labour for the cultivation of the property. Until 1990 plaintiffs were participating in the income. Thereafter the 2nd defendant has not been paying any income. Disputes arose and the plaintiffs demanded partition. 2nd defendant refused to partition and the suit is filed in the above background claiming partition of the 3/5 shares of the plaintiffs in the A schedule properties with past and future profits. 3. 1st defendant filed a statement contending that the A schedule properties were the self acquired and individual properties of Krishna Saphalya. He was the sole cultivating tenant under Ramachandran Shanbogue and he was enjoying the properties during his life time as a cultivating tenant exclusively. The land tribunal issued a purchase certificate in favour of Krishna Saphalya in his individual capacity being the exclusive cultivating tenant. On 24.8.1988 Krishna Saphalya out of his free will and volition and in his sound and disposing state of mind executed a registered will bequeathing the entire A schedule properties in favour of the 2nd defendant. The said A.S.591/1996 3 will is true and valid and it has taken effect. It is the last will of Krishna Saphalya and as per the will the 2nd defendant came into actual possession and enjoyment of the A schedule properties. After the death of Krishna Saphalya the plaintiffs or the 1st defendant have no manner of right in the A schedule properties and therefore the plaintiffs are not entitled to claim any partition. 1st defendant has filed an additional written statement following an amendment of the plaint contending that the suit properties were the exclusive properties of Krishna Saphalya and the will executed by him is not vitiated by undue influence or misrepresentation. 4. The 2nd defendant filed a written statement contending that the A schedule properties absolutely belonged to Krishna Saphalya who was the sole cultivating tenant. The land tribunal issued a purchase certificate to Krishna Saphalya in his individual capacity. He had executed a registered will on 24.8.1988 out of his free will and volition bequeathing the entire plaint A schedule properties in favour of the 2nd defendant. The will has taken effect after the death of Krishna A.S.591/1996 4 Saphalya and the entire plaint A schedule properties are now in the actual possession and enjoyment of the 2nd defendant in which the plaintiffs or the 1st defendant has no manner of right. The 2nd defendant has also filed an additional written statement contending that the will is not vitiated by undue influence, coercion or misrepresentation. 5. In the Sub Court, on the side of the plaintiffs, PW1 and PW2 were examined and Exhibits A1 and A1(a) were marked. On the side of the defendants, DW1 to DW3 were examined and Exts.B1 to B6 were marked. The learned Sub Judge, on considering the evidence found that Ext.B1 will dated 24.8.1988 was executed by Krishna Saphalya in favour of second defendant in respect of plaint A schedule properties and as such, that properties are not available for partition and the suit was dismissed with costs. Against that judgment and decree, plaintiffs 1 to 3 filed this appeal. 6. Heard the learned counsel for the appellants and learned counsel for the respondents. At the time of argument, learned counsel for the appellants raised the following A.S.591/1996 5 contentions : The court below ought to have found that Ext.B1 will is vitiated by undue influence, misrepresentation and fraud. The lower court ought to have held that the propounder of the will, i.e., DW1 has not removed all the suspicions surrounding the will and that second defendant has taken active participation in the execution of the will. Learned counsel for the appellants submitted that non-examination of the scribe is another suspicious circumstance even though his name was included in the witness list. Learned counsel for the respondents supported the judgment of the court below. 7. There is no dispute that the plaintiffs 1 to 3 are the married daughters and the second defendant is the only son of the deceased Krishna Saphalya and the first defendant. It is an admitted fact that Krishna Saphalya died on 15.2.1990 and the disputed Ext.B1 registered will was executed on 24.8.1988. The mode of proving a will does not ordinarily differ from that of proving any other document excepting the additional requirement of proof attestation as provided by Section 63 of the Indian Succession Act. A.S.591/1996 6 8. To prove attestation of a will, what is necessary to be shown is that the two attesting witnesses had seen the testator signing the will and they themselves had signed in the presence of the testator. If there are any suspicious circumstances, it is for the propounder to explain them to the satisfaction of the court. Section 68 of the Evidence Act lays down that where a document is required to be attested, the document cannot be used as evidence unless at least one attesting witness has proved its due execution. In the present case first defendant who is the mother of the plaintiffs and second defendant supported Ext.B1 will. The second defendant was examined as DW1. DW1 deposed that his father had instructed the scribe to prepare a draft of the will two days prior to the execution of Ext.B1 will. 9. The second defendant has examined two attesting witnesses to Ext.B1 will as DW2 and DW3 to prove the execution of the will. Since the 2nd defendant has examined two attesting witnesses to Ext.B1 will to prove its execution, non-examination of scribe is not fatal. DW2 Soma is the son of A.S.591/1996 7 elder brother of Krishna Saphalya and as such he is equally related to the plaintiffs and second defendant. DW2 deposed that he had attested Ext.B1 will and that it was prepared by the scribe, viz., Bhatta and that it was written up at the office of the scribe. DW2 deposed that after writing Ext.B1 will, the scribe read over the contents to Krishna Saphalya and he admitted the contents as true and that he put his signature in Ext.B1 will and he saw the testator signing the will and thereafter DW2 attested the will by putting his signature and the testator saw DW2 and DW3 attesting the will. DW2 deposed that at the time of execution of the will, the testator was in a sound and disposing state of mind and the testator told him that he had given his daughters in marriage during his life time and therefore, he did not want to make any provision regarding his daughters and that the first defendant had her own properties and that he did not want to make any provision for her also. 10. DW2 denied the suggestion that Ext.B1 will was executed by misrepresentation and undue influence. DW2 deposed that the testator died at the age of 77 years. DW3 A.S.591/1996 8 Keshava is the second attesting witness to Ext.B1 will. DW3 deposed that Krishna Saphalya was employed in the Railways and that his father was also an employee of the Railways and was a friend of Krishna Saphalya. DW3 deposed that Ext.B1 will was written at the office of the scribe and after writing the same, its contents were read over to the testator and he admitted the same as correct and thereafter, the testator signed Ext.B1 will and that he saw the testator signing Ext.B1 and thereafter, DW2 signed the will as the first attesting witness and after that DW3 signed the will as the second attesting witness and that both the attesting witnesses saw the testator signing Ext.B1 will and the testator saw both the attesting witnesses signing Ext.B1 will. 11. Learned counsel for the appellants submitted that Ext.B1 will was prepared in Kannada and that the testator did not know that language. That argument cannot be accepted in view of the fact that when DW2 and DW3 were examined the plaintiffs had no case that the testator did not know Kannada. When the second defendant was examined as A.S.591/1996 9 DW1, he deposed that his father did not know how to read and write Kannada, but he could understand Kannada if read over. 12. Registration of Ext.B1 will is a strong circumstance towards the genuineness of that will, as it was registered by the testator himself. The plaintiffs have no case that DW2 and DW3 had any enmity towards plaintiffs or any special interest towards the defendants. Therefore, DW2 and DW3 cannot be treated as interested witnesses. As there is nothing to discredit the testimony of DW2 and DW3, we are of the view that the learned Sub Judge is fully justified in finding that Ext.B1 will was executed by the deceased Krishna Saphalya in favour of the second defendant, in respect of plaint A schedule properties. The mere fact that the second defendant accompanied the testator to the scribe's office and registration office is not a sufficient ground to doubt the genuineness of Ext.B1 will. The testimony of PW1 and PW2 will not show at the time of execution of Ext.B1 will, the testator was not of sound mind. The only complaint of PW1 is that her father was having rheumatic complaint and asthma. A.S.591/1996 10 13. In Ext.B1 will, it is stated that the testator was aged 75 years at the time of execution of the will and that the properties covered by the will were assigned in his favour in S.M.45/79 and he obtained the purchase certificate on 8.12.1980 and that he was in possession of that properties as absolute owner. In Ext.B1 will, it is stated that he had helped the plaintiffs beyond his capacity, in cash. In Ext.B1 will, the testator had stated the reasons for excluding the plaintiffs from inheriting the property. The parties have no case that after the execution of Ext.B1 will, the testator had executed any other will. The plaintiffs have not produced any documents to show that the testator obtained purchase certificate in respect of plaint A schedule properties for and on behalf of them also. Since plaint A schedule properties belonging to the testator were bequeathed to the second defendant as per Ext.B1 will, after the death of the testator, the properties devolved on the second defendant alone and the plaintiffs and the first defendant have no right over that properties and as such, that properties are not available for partition. A.S.591/1996 11 14. Therefore, we are of the view that the learned Sub Judge is fully justified in dismissing the suit on finding that the plaint A schedule properties are not available for partition. Accordingly, this appeal is dismissed as it is without any merits. The judgment and decree dismissing O.S.157/1992 on the file of the Sub Court, Kasaragod is confirmed. The parties are directed to suffer their respective costs in this appeal and in the suit. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs