IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 RSA.No. 152 of 2010() --------------------- AS.83/2000 of SUB COURT, OTTAPPALAM OS.74/1999 of MUNSIFF COURT, OTTAPPALAM .................... APPELLANT/(RESPONDENT/DEFENDANT) ---------------------------------------------------- GOPALAN, S/O.KARIMPANATHOTTATHIL KUMBARAN CHINNAN CHETTIYAR, CHOROTTUR DESOM, THRIKKANGODE AMSOM, OTTAPPALAM TALUK. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON SMT.ANJU P.NAIR RESPONDENT(S): (APPELLANTS/PLAINTIFFS) -------------------------------------- 1. KAMALAKSHY, W/O.KARIMPANATHOTTATHIL KUMBARAN CHINNAN CHETTIYAR, CHOROTTUR DESOM, THRIKKANGODE AMSOM,OTTAPPALAM TALUK. 2. AMMINI, D/O. KAMALAKSHY,R/AT -DO- -DO- 3. VEERAYI, S/O.KAMALAKSHY R/AT -DO- -DO- 4. KRISHNANKUTTY, S/O.KAMALAKSHY, R/AR -DO- THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.152 of 2010B --------------------------------------- Dated this 15th day of February, 2010 JUDGMENT The second appeal arises from judgment and decree of learned Sub Judge, Ottappalam in A.S.No.83 of 2000 reversing judgment and decree of learned Munsiff, Ottappalam in O.S.No.74 of 1999 and granting preliminary decree for partition. Suit property belonged to Chinnan Chettiar and his first wife, Vellachi as per document No.199 of 1959. The first wife released her right to Chinnan Chettiar as per document No.769 of 1977. Appellant/defendant is the son of Chinnan Chettiar in his first wife who was divorced, according to the respondents 38 years back and indisputably, atleast 20 years before institution of the suit. After that divorce Chinnan Chettiar married respondent No.1/plaintiff No.1 in whom he begot respondent Nos.2 to 4. He died in the year 1997 according to the respondents, intestate. Respondents demanded 4/5th share in the suit property stating that 1/5th share belonged to the appellant/defendant. Appellant contended that Chinnan Chettiar had executed a registered Will on 04-05-1988 bequeathing the entire property to him. Respondents filed a replication denying the execution of the Will and contending that it is a concocted document. They further contended that Chinnan Chettiar could not have out of his free will and with sound disposing mind R.S.A.No.152 of 2010 B 2 executed any such Will. Appellant examined himself as DW1. DW2 is one of the attesting witness in Ext.B1, the disputed Will. Trial court negatived the contention of respondents, found in favour of due execution and attestation of the Will and dismissed the suit. Respondents took up the matter in appeal. First appellate court found that due execution and attestation of Ext.B1, Will are not proved and that suspicious circumstances surrounding its execution and attestation are not removed by the propounder. Holding so judgment and decree of the trial court were reversed and preliminary decree for partition was passed. That is under challenge in the second appeal raising by way of substantial question of law whether first appellate court was legally correct in holding that due execution of Ext.B1 is not proved. It is contended by learned counsel that none of the circumstances set up by respondents can be taken as suspicious which cast doubt on due execution and attestation of the Will. According to the learned counsel first appellate court was not justified in reversing the judgment and decree of trial court. 2. Ext.B1 is the disputed Will. No doubt, it is a registered document. A Will is not a document which is compulsorily registerable under section 17 of the Registration Act. Though decisions on the point say the fact of registration certainly is a circumstance to be taken into consideration in favour of due execution of the Will along with other proved circumstances, it is also the settled position of law R.S.A.No.152 of 2010 B 3 that registration by itself is no reason to uphold the execution of the Will and is not a substitute for proof of execution and attestation of the document. Therefore fact of registration by itself is not sufficient to uphold the Will. Evidence regarding alleged execution and attestation of Ext.B1, Will comes from DW2, one of the witnesses in Ext.B1. He stated that he saw deceased signing the Will at the office of document writer and at the office of Sub Registrar. Himself and the remaining attestor in Ext.B1 also signed the document. In answer to a question whether deceased was suffering from Paralysis during the relevant time, though he denied that suggestion admitted that deceased was suffering from various illness the details of which he could not say. Going by the evidence of DW2 it would appear that he had not seen anybody reading over contents of the disputed Will to the deceased or deceased himself reading it. What DW1 stated is that deceased signed the document (at the office of document writer) and at that time he was standing inside (the office). To another question whether deceased was signing the document where the document writer pointed out, DW2 stated that he did not listen to that. Nor does DW2 know who had gave instruction for preparation of the Will. DW1, appellant is not a witness to the alleged execution of Will. His evidence cannot prove the due execution and attestation of the Will. What is available is only evidence of DW2 regarding due execution and attestation of the Will. The scribe of the document was not examined. R.S.A.No.152 of 2010 B 4 Contra evidence is given by PW1, respondent No.4. He stated that deceased was lying paralyzed at the time Ext.B1 was allegedly executed (there is no such specific plea) and was not in sound disposing state of mind. To a suggestive question whether it is his contention that Chinnan Chettiar who was not capable of knowing the consequence of the act was taken to the office of Sub Registrar and the document was got executed, he answered in the affirmative. Considering the manner in which the suggestive question was put and answer was elicited, I am unable to accept it as an admission of signature of testator in Ext.B1. It is relevant to note that Ext.B1 was not even shown to PW1 in cross examination and his opinion sought as to authenticity of signature in Ext.B1. No admitted signature of the deceased is before court to make a comparison as well. As such one has to blindly rely on the evidence of DW1. A fact which is not disputed is that Chinnan Chettiar, the deceased had divorced mother of appellant at least about 20 years back and thereafter he married respondent No.1 in whom respondent Nos.2 to 4 were born. They along with the deceased were staying in Thiruvillamala while appellant and his mother are permanently staying in Thodupuzha, far off from the place of residence of the deceased. Though, it is the case of appellant that he occasionally used to visit the deceased at residence of respondents, there is no acceptable evidence in that line. Moreover, his own version belies that contention. He stated that he used to sent R.S.A.No.152 of 2010 B 5 money to the deceased by way of money orders. If he actually were visiting the deceased occasionally there was no necessity to sent money by money order. Appellant did not also produce any evidence to show that he has sent money to the deceased by way of money order at least once. On the other hand, PW1 stated that appellant came to their residence only once, after death of the deceased was intimated to the appellant by telegram. Circumstances do not support the claim of appellant. Evidence indicate that the deceased had no contact with the appellant and his mother for long. 3. A further fact to be noted is that deceased had executed two assignment deeds in respect of portions of his property to strangers and hence he was not in possession of those items at the time of death but admittedly, those sold away items are also included in Ext.B1 and bequeathed in favour of the appellant making no mention of the assignments already made by the deceased. If deceased had given instructions to prepare the Will and he were aware of its contends this serious contradiction would not have happened. Respondents relied on the decisions of this court in Ramachandra Rao & Ors. Vs. Rajendra Rao & Ors. (1995(1) ILR Kerala 567) to point out the above as a suspicious circumstance. Trial court did not take it as a suspicious circumstance but first appellate court, in the light of other circumstances proved in the case took it as a suspicious circumstance. May be, in a given case such a circumstance alone may R.S.A.No.152 of 2010 B 6 not be taken as suspicious. On the facts and circumstances of this case the above circumstance would loom large on the due execution and attestation of the Will. 4. A further fact to be noted is that as admitted by the appellant also deceased was being looked after during his old age by the respondents with whom he was staying ever since he divorced mother of appellant atleast about 20 years back. I stated that appellant was brought up by his mother and both are permanently staying at Thodupuzha far off from the residence of the deceased. I also stated that there is no acceptable evidence, not even a single letter to show that deceased had any contact with the appellant during the last 20 years. In such a circumstance would the deceased completely disinherit the respondents? No doubt purpose of executing a Will is to interfere with the normal line of succession. But here is a case where the Will is executed in respect of entire property of the deceased (including property already assigned by him in favour of third parties) in favour of the son in his divorced first wife and completely disinheriting respondents who have been looking after the deceased during his old age. Appellant did not produce/summon any document containing the admitted signature for comparison with the signature in Ext.B1. Moreover version of PW1 is that the money order coupons (for sending money to the deceased) contained thumb impression of the deceased. But Ext.A1 is alleged to be signed by the deceased. The R.S.A.No.152 of 2010 B 7 above in my view are suspicious circumstances for which appellant has no proper explanation. The evidence of DW2 is also not very convincing. He admitted that the deceased was suffering from various illness but appellant has no such case. Appellant was not able to remove the suspicious circumstances surrounding alleged execution and attestation of the Will. It is in the above circumstances that first appellate court on a re-appreciation of evidence reversed findings of the trial court as to the execution and attestation of Ext.B1, reversed the judgment and decree of the trial court and granted preliminary decree for partition. On going through the evidence which the learned counsel for appellant has placed before me and judgment under challenge and hearing learned counsel I am not satisfied that any substantial question of law is involved in the matter requiring decision. Accordingly the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/