IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 25TH MAY 2011 / 4TH JYAISHTA 1933 SA.No. 343 of 2000(G) -------------------------- AS.193/1991 of II ADDL. DISTRICT COURT, PALAKKAD OS.291/1990 of MUNSIFF COURT, ALATHUR .................... APPELLANT(S):APPELLANT/DEFENDANT ----------------------------------------------- BHASKARAN, S/O.KUTTAN, RESIDING AT KANIMANGALAM,KIZHAKKENCHERRY AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON RESPONDENT(S): RESPONDENT/PLAINTIFF --------------------------------------------------- KUNHIRAMAN, S/O.KUTTAN, RESIDING AT NANNANGADI, KIZHAKKENCHERRY AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI P. R. VENKETESH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs P.BHAVADASAN, J. ---------------------------- S.A.No. 343 of 2000 --------------------------------- Dated this the 25th day of May, 2011 JUDGMENT The defendant in O.S.No.291 of 1990 before the Munsiff's court Alathur, who suffered decrees at the hands of both the courts below is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. It is not in dispute that the plaint schedule property belonged to the father of the parties. On the basis of Ext.A1 registered will said to have been executed by late Kuttan, plaintiff laid claim to the suit property. According to the plaintiff, as per the provisions in the will the suit property was set apart to him and he is entitled to the same. He claimed recovery of possession on the strength of title and also for mesne profits. 3. The defendant resisted the suit. He challenged the genuineness of the will and pointed out that the will is concocted and fraudulent. It is also pointed out by him that the propounder of the will had taken active role in drawing up of the will and the testator was incapable of executing a will as claimed by the S.A.No. 343 of 2000 2 plaintiff. He therefore, prayed for a dismissal of the suit. It is also pointed out that if at all the plaintiff had any manner of right, the remedy was to sue for partition. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 to 3 and documents marked as Exts. A1 and A2 from the side of the plaintiff. The defendant examined as DWs 1 to 3 and had Exts.B1 to B3 marked. Ext.C1 is marked as Court Exhibit. 5. The trial court on an evaluation of the evidence found that the will to be genuine and that there are no suspicious circumstances. It is also found that none of the contentions raised by the defendant is tenable and accordingly decreed the suit. The aggrieved defendant took up the matter in appeal as A.S.No.193 of 1991 before the District Court, Palakkad. The lower appellate court on an independent evaluation of the evidence in the case confirmed the trial court decree and dismissed the appeal. 6. Notice is seen issued on the following substantial questions of law: i. Whether the courts below were justified in law in granting a decree for recovery of possession on the basis of Ext.A1 will when the same has not been S.A.No. 343 of 2000 3 proved by examining at least one attesting witness as required under Section 68 of the Evidence Act? ii. Have not the courts below erred in holding that PW2 is an attesting witness when Ext.A1 will amply shows that he has signed the same only as a scribe as evident from the distinct description of the other attesting witness who has admittedly not been examined ? iii. Whether the courts below were correct in law to hold that Ext.A1 will is true and genuine when the propounder of the will had taken an active part in its execution and that the bequest made thereunder to the legatees are disproportionate without assigning any reasons therefore ? 7. The learned counsel appearing for the appellant pointed out that PW2 is only a scribe and he cannot be a treated as a attesting witness to the will. If that be so, no attesting witness has been examined as per required under Section 68 of the Indian evidence Act. It was also pointed out that the evidence on record clearly shows that the propounder of will had taken active participation in drawing up of the will and that is a suspicious circumstance which ought to have been explained by the propounder. These aspects have not been considered by the court below and that had resulted in miscarriage of justice. 8. Per contra, the learned counsel appearing for the respondent pointed out that both the courts below have S.A.No. 343 of 2000 4 elaborately considered the evidence on record and found that PW2, who is a scribe has also signed in Ext.A1 will as an attesting witness and that is sufficient in law. It is emphasized by the learned counsel that it is not as if the defendant had been totally inherited but in fact more extent of land had been bequeathed to him and that would show that the plaintiff had no major part in the actual drawing up of the will. There is nothing to indicate that the testator was incapable of executing the will and there was no evidence in that regard. 9. The learned counsel for the respondent pointed out that no grounds are made out to interfere with the judgments and decrees of the courts below and the appeal is only to be dismissed. 10. As rightly pointed out by the learned counsel for the respondent both the contentions raised by the learned counsel for the appellant are without basis. It is true that PW2 is examined to prove the due execution of the will is the scribe of the said document also. But he has signed in the will as an attesting witness also. Even though the testamentary capacity has not S.A.No. 343 of 2000 5 been spoken to by PW2 in the chief examination, the cross examination makes it clear that the testator had the necessary testamentary capacity. 11. Even though there was a contention raised by the defendant that the testator has incapable of executing a will as claimed by the plaintiff since the testator was suffering from severe rheumatism, he was unable to adduce any evidence to establish the said fact. Both the courts below have taken note of this aspect and found that there is nothing to indicate that the testator did not have a sound disposing state of mind at the time of execution of Ext.A1 will. 12. Thus the due execution of the will and the capacity of the testator will stand clearly proved from the evidence on record. 13. Again, if as a matter of fact the propounder had major role to play in the preparation of the will it is inconceivable that he would have set apart a larger extent of land be given to the defendant and taking lesser share for himself. There is nothing to show that propounder had taken any active role in drawing up of the will. May be that he had taken the testator to Registrar's Office S.A.No. 343 of 2000 6 for registering the will. By that by itself is not a ground to doubt the genuineness of the will. 14. Apart from the above fact that the will is a registered one. Even though the registration by itself is not a ground to hold that the will is genuine certainly it is a fact in favour of the propounder of the will when other requirements are proved. In the case on hand, the due execution of the will and attestation have been established and the fact that the will is a registered one is another circumstance which goes in favour of holding that will is genuine. Both the courts below have considered the matter in considerable detail and have come to the conclusion that there is no reason to suspect Ext.A1 will. No substantial questions of law arises for consideration in the second appeal. The result is that the second appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln