IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 23RD MAY 2011 / 2ND JYAISHTA 1933 RFA.No. 577 of 2008() ------------------------------ OS.655/2005 of PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANT (S): IST DEFENDANT ----------------------------------------------- V.V. CHANDRASEKHARAN, AGED 59, S/O.LATE K.K. VELAYUDHAN, KATTAMBULLIPARAMBIL HOUSE, KARIKKAMURI, ERNAKULAM, COCHIN-11. BY ADVS. SRI.VIVEK VARGHESE P.J. SRI.P.J.VINOD JOSEPH RESPONDENT(S): PLAINTIFF/DEFENDANTS 2 TO 4 ------------------------------------------------------------------------- 1. V.V. INDIRA, AGED 56, RESIDING AT RAGASUMAN, SHANTHI NAGAR, KUTTAMASSERY, ALUVA-5. 2. MR. RAJENDRAKUMARI, AGED 38, D/O. RAJAGOPAL, CHITHRAKALALAYAM, A.K.G. ROAD, EDAPPALY.P.O. 3. MR. RAJIMOL, AGED 31, D/O. RAJAGOPAL, CHITHRAKALALAYAM, A.K.G. ROAD, EDAPPALLY.P.O. 4. MR. RAJIMON, AGED 34, S/O. RAJAGOPAL, CHITHRAKALALAYAM, A.K.G ROAD, EDAPPALLY.P.O. 5. MR. RAJAGOPAL, AGED 70, CHITHRAKALALAYAM, A.K.G ROAD, EDAPPALY.P.O, ERNAKULAM. ADV. SRI.P.V.BALAKRISHNAN MEDIATOR R1 B Y ADV. SRI.P.P.JOYI THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 01/04/2011, THE COURT ON 23/05/2011 DELIVERED THE FOLLOWING: tss ORDER ON IA. NO.3275/2010 IN RFA.NO.577/2008 DISMISSED 23/05/2011 SD/- THOTTATHIL B.RADHAKRISHNAN, JUDGE SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A. TO JUDGE tss THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A. No. 577 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of May, 2011. JUDGMENT Bhavadasan, J , Late K.K.Velayudhan and late Dakshayani had three children, namely, the plaintiff, the first defendant and late Bharati, whose legal heirs are defendants 2 to 5. Velayudhan died on 6.10.1993 and his wife on 20.12.2000. In 2005 one of the daughters of Velayudhan, namely, Smt.V.V.Indira instituted O.S.655 of 2005 for partition on the basis that Velayudhan died intestate. First defendant is her brother. 2. The suit was resisted by the first defendant on the basis of a will said to have been executed by late K.K.Velayudhan dated 15.4.1993, by which he alone was entitled to succeed to the estate left behind by Velayudhan. Defendants 2 to 5 supported the plaintiff. R.F.A.577/2008. 2 3. 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 and A2 from the side of the plaintiff. The defendants had D.Ws. 1 to 3 examined and Exts.B1 to B7 marked. The trial court on an evaluation of the evidence found that the due execution and attestation of Ext.B1 will had not been established and accordingly passed a preliminary decree for partition. The first defendant in the suit assails the judgment and decree. 4. Learned counsel for the appellant contended that the finding of the court below regarding the will is unsustainable both in law and on facts. According to learned counsel, there was no dispute regarding the signature of the deceased on the Will. Evidence of D.Ws.2 and 3 are sufficient to show that the will was executed and attested as is required under law. According to learned counsel, the court below was not justified in holding that the due execution of the will has not been established since the attesting witnesses examined had not stated that he had seen the R.F.A.577/2008. 3 executor affix his signature on the will. Unfortunately for the first defendant, the other attesting witness was not available as he was no more. D.W.2 is the scribe and D.W.3 is the attesting witness to Ext.B1. None of the circumstances pointed out by the plaintiff to suspect the execution of the will are established and infact the plea was one of fraud. That being so, the burden was on the plaintiff to show that the will was vitiated due to fraud. Learned counsel has a case that burden has been wrongly thrown on the first defendant and that has resulted in miscarriage of justice. 5. Per contra, learned counsel appearing for the contesting respondents pointed out that the court below has appreciated the evidence on record and has come to the conclusion that due execution of the will is not proved. There are very many suspicious circumstances surrounding the execution of the will and there was no attempt from the side of the first defendant, who was the propounder of the will, to remove the suspicious circumstance and to prove the due execution and attestation of the will. After the death of Velayudhan in the year 1993 the will was put forward for the first time when the suit was instituted in 2005. At the relevant time R.F.A.577/2008. 4 Velayudhan was bed ridden with paralysis and was incapacitated. Learned counsel contended that it is trite that the burden is on the propounder of the will to establish that the will was duly executed and that it was free from suspicious circumstances. In the replication it was specifically averred that the will was not executed by Velayudhan and therefore it is idle for the appellant to say that the only contention was that the will was vitiated by fraud. The due execution and attestation was disputed and under such circumstances, the burden was on the first defendant to show that the will was duly executed. The lower court, according to learned counsel, has referred to the evidence of D.W.2, who is the scribe and D.W.3 an attesting witness and had come to the conclusion that the evidence furnished by them is totally insufficient to establish the due execution of the will. Attention was also drawn to the fact that the propounder of the will cleverly kept away from box and he had his wife examined on his behalf. According to learned counsel, no grounds are made out to interfere with the judgment and decree of the court below and the appeal is only to be dismissed. R.F.A.577/2008. 5 6. The issue therefore arises for consideration is whether the due execution of the will is proved. 7. The law regarding proof of will is well settled. Section 63 of the Indian Succession Act deals with the drawing up of a will. It reads as follows: “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. (c) 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 R.F.A.577/2008. 6 testator, or has received from the testator a personal acknowledgment 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.” 8. As regards the proof of will, one has to refer to Section 68 of the Indian Evidence Act, which 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 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.” R.F.A.577/2008. 7 9. Going by Section 63 of the Indian Succession Act the following things are required for a valid execution of the will: i) it must be in writing, ii) it must be duly signed by the testator and iii) it must be duly attested by atleast two witnesses. Going by the provision, it is necessary that the attesting witness should either see the testator sign the will or receive an acknowledgment from him about the signature in the will. It can also be seen that the attesting witnesses will have to sign in the presence of the testator. But it is not necessary that each attesting witness should see the other sign the document. 10. The word attestation is not defined either in the Indian Succession Act or in the Indian Evidence Act. However, the Transfer of Property Act defined the word 'attested', which reads as follows: “ “attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen R.F.A.577/2008. 8 some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.” 11. It is by now well settled that the initial burden to prove the due execution and attestation of the will is on the propounder. But the proof required is like as of any other document except that atleast one of the attesting witnesses will have to be examined. It is common knowledge that in such proceedings the court is called upon to decide a solemn question and since the testator is not available to give evidence regarding the will, the duty of the court becomes more onerous. Apart from proving the due execution and attestation of the will, if there are any suspicious circumstance surrounding the execution of the will, then the propounder has an added burden to remove those suspicious circumstances to the satisfaction of the court. Registration of the will may be one of the R.F.A.577/2008. 9 circumstances which may go in favour of the execution of the will. But that by itself has not been treated as sufficient to prove due execution of the will. The basic decision regarding proof of wills is the decision reported in Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443), wherein it was held as follows: “The party propounding a will or other wise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under S.67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the persons concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be 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 relies on a document R.F.A.577/2008. 10 in a Court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant. 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. It would prima facie 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. However, there is one important feature which distinguishes will from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the work cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the R.F.A.577/2008. 11 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 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 of the propounder can be taken to be discharged on proof of the essential facts just indicated.” 12. In the decision reported in Meenakshiammal v. Chandrasekharan (AIR 2005 SC 52) it was held as follows: “In the case of Madhukar D. Shende v. Tarabai Aba Shedage reported in (AIR 2002 SC 637), it has been held as follows:- "8. The requirement of proof of a Will is the same as any other document excepting that the evidence tendered in proof of a Will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts R.F.A.577/2008. 12 and circumstances as emanating from the material available on record of a given case, the Court either believes that the Will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the Will was duly executed by the testator, then the factum of execution of Will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers. What was told by Baron Alderson to the Jury in R. v. Hodge, 1838, 2 Lewis CC 227 may be apposite to some extent - "The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected hole; and the more ingenuous the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete". The conscience of the Court has to be satisfied by the propounder of Will adducing evidence so as to dispel any suspicions or unnatural R.F.A.577/2008. 13 circumstances attaching to a Will provided that there is something unnatural or suspicious about the Will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict - positive or negative. 9. It is well-settled that one who propounds a Will must establish the competence of the testator to make the Will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. The contestant opposing the Will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the Court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same. The factors, such as the Will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a Will, the Court R.F.A.577/2008. 14 would not return a finding of 'not proved' merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a Will as against the person disputing the Will and the pleadings of the parties would be relevant and of significance." 13. In the decision reported in Niranjan Umeshchandran 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 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, R.F.A.577/2008. 15 on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable. 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 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. [See Madhukar D. Shende v. Tarabai Shedage (2002) 2 SCC 85 and Sridevi and Ors. v. Jayaraja Shetty and Ors. (2005) 8 SCC 784]. 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 R.F.A.577/2008. 16 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.” 14. In the decision reported in S.R.Srinivasa v. S. Padmavathamma ((2010) 5 SCC 274) it was held as follows: “This Court in Iyengar case had clearly held that cases in which the execution of the will is surrounded by suspicious circumstances, it may raise a doubt as to whether the testator was acting of his own free will. In such circumstances it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter. The presence of suspicious circumstances makes initial onus heavier. Such suspicion cannot be removed by the mere assertion of the propounder that the will bears signature of the testator or that the testator was in a sound and disposing state of mind at the time when the will was made. R.F.A.577/2008. 17 In our opinion, the High Court failed to exercise proper care and caution by not throughly examining the evidence led by the party, especially when it was not in agreement with the reasons recorded by the first appellate court. In Jaswant Kaur V. Amrit Kaur, the Court reiterated the principles governing the proof of a will which is alleged to be surrounded by suspicious circumstances. Chandrachud, J. speaking for the Court observed as follows: “The defendant who is the principal legatee and for all practical purpose the sole legatee under the will, is also the propounder of the will. It is he who set up the will in answer to the plaintiff's claim in the suit for a one-half share in her husband's estate. Leaving aside the rules as to the burden of proof which are peculiar to the proof of testamentary instruments, the normal rule which governs any legal proceeding is that the burden of proving a fact in issue lies on him who asserts it, not on him who denies it. In other words, the burden lies on the party which would fail in the suit if no evidence were led on the fact alleged by him. Accordingly, the defendant ought to have led satisfactory evidence to prove the due execution of the will by its grandfather Sardar Gobinder Singh. In cases where the execution of a will is shrouded in suspicion its proof ceases to be a simple lis between the R.F.A.577/2008. 18 plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation