IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933 SA.No. 262 of 1999(F) --------------------- AS.115/1994 of DISTRICT COURT, THRISSUR OS.2073/1986 of I ADDL.M.C.,THRISSUR .................... APPELLANTS:- RESPONDENTS 1 TO 3 IN APPEAL AND PLAINTIFFS IN THE SUIT -------------- * 1. AMMU W/O. VELAPPAN, THOLUR DESOM, PARAPPUR VILLAGE AND D/O.LATE PANGIL MAKKUNNY, PUTHOOR DESOM, KAIPARAMBU VILLAGE, THRISSUR TALUK. (DIED) 2. AMMALU W/O. CHOONDAPURACKAL BALAN, KURAMAL DESOM, VELOOR VILLAGE, THALAPPILLY TALUK AND D/O. PANGIL MAKKUNNY, -DO- -DO- 3. MADHAVI W/O. PULIKKAL PRABHARAN, CHOONDAL VILLAGE, DESOM, THALAPPILLY TALUK, AND D/O. PANGIL MAKKUNNY, -DO- -DO- * L..Rs. OF DECEASED FIRST APPELLANT ARE IMPLEADED AS ADDL. APPELLANTS 4 TO 8 VIDE ORDER DT.28.10.03 ON CMP NO.678/03 * ADDL. APPELLANTS 4 TO 8 4. CHANDRIKA, W/O. SUDHAKARAN, RESIDING AT PAMPUNGAL HOUSE, P.O.THOLUR, THRISSUR DT. 5. ASOKAN, S/O.VELAPPU, RESIDING AT -DO- DO- 6. JANARDHANAN, S/O. VELAPPU RESIDING AT -DO- -DO- 7. AJITHEN S/O. VELAPPU RESIDING AT -DO- -DO- 8. DEEPAN S/- VELAPPU RESIDING AT -DO- -DO- A2 AND A3 BY ADVS. SRI.KRISHNAKUMAR MANGOT & SRI.K.MANU RAJ A4 TO A8 BY ADV.P.RAMACHANDRAN RESPONDENTS:- APPELLANT AND RESPONDENTS 4 TO 7 IN A.S. NO.115/94 --------------------- AND DEFENDANTS 1 TO 5 IN THE SUIT 1 SANKARAN S/O. LATE PANGIL MAKKUNNY, PUTHOOR DESOM, KAIPARAMBU VILLAGE THRISSUR DISTRICT. 2. LAKSHMI W/O PANGIL GOVINDAN, PUTHOOR DESOM, KAIPARAMBU VILLAGE, THRISSUR TALUK 3. LEJEESH (MINOR)S/O LATE PANGIL GOVINDAN, PUTHOOR DESOM, KAIPARAMBA VILLAGE, REPRESENTED BY MOTHER LAKSHMI, W/O PANGIL GOVINDAN -DO- -DO- 4. AMMINI CLAIMED TO BE W/O PANGIL GOVINDAN PUTHOOR DESOM, KAIPARAMBU VILLAGE, 5. PRADEEPAN CLAIMED TO BE S/O PANGIL GOVINDAN -DO- -DO- R1, R4 & R5 BY ADVS. SRI.P.VIJAYA BHANU & SRI.T.A.UNNIKRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21 / 07 /2011, ALONG WITH SA NO. 278 OF 1999 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KKJ P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - S.A.Nos. 262 & 278 of 1999 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of July, 2011 J U D G M E N T Plaintiffs are the appellants. O.S.No.2073/1986 before the Munsiff Court, Thrissur, was a suit for partition. A preliminary decree was passed by the trial court. Ist defendant filed A.S.No.115/1994 and defendants 4 and 5 filed A.S.139/1994. The appeals were allowed and the suit was dismissed. That brings the plaintiffs before this Court. 2. The facts absolutely necessary for the disposal of these appeals are as follows:- The plaintiffs 1 to 3 and defendant No. 1 and late Govindan are the children of late Makkunni. The plaint schedule property admittedly belonged to Makkunni. The short case of the plaintiffs is that consequent on the death of Makkunni, his property devolved on his children. Claiming 1/3rd share each, the suit was laid. 3. The suit was resisted by the defendants pointing out that Makkunni had executed Ext.A3 Will bequeathing :2: S.A.No. 262 of 1999 & S.A.No.278 of 1999 the assets owned by him in favour his sons namely the 1st defendant and Govindan. It was therefore pointed out that no properties were available for partition and the suit is only to be dismissed. 4. On the basis of above pleadings issues were raised by the trial court. The evidence consists of the testimony of PWs 1and 2 and documents marked as Exts.A1 and A2 from the side of the plaintiffs. Defendants had DWs 1 to 6 examined and Exts. B1 and B3 marked. Ext.X1 is the third party Exhibit. 5. The trial court on an evaluation of the evidence found that the execution of the Ext.B2 Will is not proved and therefore the plaint schedule property is liable for partition. Accordingly a preliminary decree for partition was passed. 6. That made the first defendant file AS.No.115/1994 before the District Court, Ernakulam. The defendants 4 and 5 filed separate appeal i.e. A.S.No.139/94. The lower appellate court considered the appeals together and on a :3: S.A.No. 262 of 1999 & S.A.No.278 of 1999 re-evaluation of the evidence in the case found that the conclusions drawn by the trial court are unjustified and that the execution and attestation of the Will has been proved. The lower appellate court also noticed that the Will was registered from the house of Makkunni. But his age and the fact the Registrar was brought home are not by themselves sufficient to doubt the genuineness of the Will when it was otherwise duly proved. Therefore the appeals were allowed and suit was dismissed. That brings the aggrieved plaintiff before this Court. 7. Notice is seen issued on the following questions of law:- i) Was the lower appellate court justified in upholding Exhibit B2 without sufficient proof regarding its execution and registration? ii) Did not the court below erred in placing the burden of proof regarding Exhibit B2 on the plaintiffs? iii)Was the learned District Judge justified in upholding Exhibit B2 without satisfactory proof of the testamentory capacity of the testator? iv)Did not the court below err in finding that there are no suspicious circumstances relate to Exhibit B2? :4: S.A.No. 262 of 1999 & S.A.No.278 of 1999 v) Did not the court below grieviously erred in upsetting a well reasoned judgment of the trial court on surmises and conjectures? vi)Was the court below justified in dismissing O.S.2083/1986? 8. The learned counsel appearing for the appellants pointed out that the lower appellate court was unjustified in reversing the findings and conclusions drawn by the trial court. The trial court had evaluated the evidence in the case and found that the evidence of DW1 , 3 and 6 are inconsistent and contradictory and unreliable and there were suspicious circumstances surrounding the execution of the Will. According to the learned counsel, trial court had given convincing reasons as to why the evidence of DWs 1,3 and 6 could not be accepted. The lower appellate court has not adverted to the aspects considered by the trial court and simply choosen to believe Dws1, 3 and 6 to hold that the will is genuine. The learned counsel also complained that the evidence of DWs 1,3 and 6 have not been properly considered by the lower appellate court. The trial court :5: S.A.No. 262 of 1999 & S.A.No.278 of 1999 held that the execution of the Will is not proved and the suspicious circumstances surrounding the execution of the Will have not been explained. The lower appellate court on the other hand choose to believe Dws1, 3 and 6 and found that Dws1, 3 and 6 had nothing against the plaintiffs and that the conclusion drawn by the trial court cannot be accepted. Further the learned counsel also pointed out that the findings of the lower appellate court are based on the conjectures and surmises. The learned counsel summed up that there is no justification for the lower appellate court to reverse the findings of the trial court. 8. Per contra, the learned counsel for the respondents contended that the trial court had taken into consideration insignificant materials to hold against the will. It failed to understand that DW3 was examined for due attestation and execution of the will and DW6 was examined as identifying witness. It was not proper to pick out sentences from the evidence of DWs 3 and 6 and to hold that evidence is :6: S.A.No. 262 of 1999 & S.A.No.278 of 1999 inconsistent. So far as the inconsistencies between the evidence of Dws 3 and 6 are concerned, they are minor and insignificant. The learned counsel went on to point out that plaintiffs' case was that Makkunni was laid up and was incapable and incapacitated to execute any document. Except for his interested evidence, there is absolutely nothing to show that Makkunni did not have sound disposing state of mind at the time of execution of Ext.B2 Will. The evidence of DW1 according to the learned counsel is sufficient to show that the Will is duly executed. The lower appellate court has rightly come to the conclusion that suit was not maintainable. There was only the evidence of DWs 1,3 and 6 and no other material finding to show that whether the Will was duly executed and attested. According to the learned counsel, the lower appellate court is fully justified in coming to the conclusion that execution and attestation of the will has been duly proved. 9. Ext.B2 Will is dated 09.10.1984. The testator died :7: S.A.No. 262 of 1999 & S.A.No.278 of 1999 on 04.05.1986. The plaintiffs have a case that four years prior to the death of the testator, he was completely laid up and incapacitated, or in another words, he did not have a sound disposing state of mind at the time of execution of the alleged Will. But there is absolutely no evidence in this regard to show that the claim made by the plaintiffs that Makkunni was incapacitated and completely laid up, is true. Both PWs 1 and 2 stated that he was treated by a Doctor and he was taking medicines. If that be so, there would have been no difficulty in producing some documents in that regard. If the doctor was not available, at least one of the neighbors could have been examined to establish the said fact. The defendants strongly refuted these allegations and pointed out that Makkunni was ill only for a short period before his death. It was for the plaintiff to show that Makkunni was at the relevant time sick and he was unable to manage his affairs and to be in the know of things. There is absolute want of evidence in that regard. The lower :8: S.A.No. 262 of 1999 & S.A.No.278 of 1999 appellate court was therefore right in coming to the conclusion that Makkunni had a sound disposing state of mind at the time of execution of Ext. B2 will. 10. Before going further it may be apposite to refer to the provisions of the Indian Evidence Act and Indian Succession Act. Section 63 of the Indian Evidence Act deals with execution of Wills regarding the proof and execution of the will and Section 68 of the India Evidence Act deals with proof of documents. Going by Section 63 of Indian Succession Act a Will has to be in writing, signed by the testator and attested at least by two attesting witnesses. It also stipulates that the attesting witnesses should see the executor sign the document or vice versa. Section 68 of the Indian Evidence Act mandates that in the case of a Will at least one of the attesting witnesses will have to be examined to prove the due execution and attestation of the will. 11. It is useful to refer to the decision reported in Venkatachala Iyengar V. B.N. Thimmajamma (AIR 1959 SC :9: S.A.No. 262 of 1999 & S.A.No.278 of 1999 443), wherein it is 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 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 :10: S.A.No. 262 of 1999 & S.A.No.278 of 1999 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 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. Once the due attestation and execution of the will is proved by the propounder then the burden shifts to the plaintiffs to show it is otherwise. 13. In his examination, DW3 says that he knew Makkunni and he had signed as a witness in the Will :11: S.A.No. 262 of 1999 & S.A.No.278 of 1999 executed by Makkunni. He further says that Makkunni had a disposing state of mind at the relevant time and Makkunni had understood the contents of the document which he had signed. He further goes to say that the details of the will was explained to Makkunni. It seems that it was he who had brought the Registrar from the Registrar’s Office for getting the Will registered. Of course in the cross examination he would deny that he had disclosed execution of the will by Makkunni to DW1. But there was no cross examination regarding the mental capacity of Makkunni to execute a will. 14. DW1 is the propounder of the will. He speaks that the will has been executed by his father. He says that he did not know about execution and attestation of the Will until it was taken out from the box maintained by his father, by DW3. The trial court has found the inconsistencies in the depositions of DWs 1 and 3 in this regard. True there is inconsistency regarding the way in which DW1 came to :12: S.A.No. 262 of 1999 & S.A.No.278 of 1999 know about the Will. DW1 says that after death of his father DW3 read out the Will. But DW3 denied any such act done by him. The lower appellate court found the said inconsistency to be insignificant and insufficient to disbelieve DW3. DW3 has spoken about the actual execution of will by Makkunni and attestation by the witnesses. As rightly noticed by the lower appellate court, there is no case for the plaintiff that DW3 had any ill-will against the plaintiff. DW6 has spoken that he has signed in the document as identifying witness, but he had not seen the registration. He says that when he reached the place, Registrar had not come and he had come later. This evidence of DW6 is also taken by the trial court to find against the defendants who put forward the Will. Again, as rightly noticed by the lower appellate court, the evidence of DW6 cannot be given undue importance and significance. One has to doubt genuineness of the Will. Moreover he was examined only as an identifying witness. :13: S.A.No. 262 of 1999 & S.A.No.278 of 1999 15. Much was said about the date of the execution of the Will and registration. The will was executed on 09.10.1984 and it was registered on 12.10.1984. The learned counsel appearing for the appellants pointed out that on going through the evidence of witnesses, it is found that the execution of the will and registration of the will was on the same day. 16. There is no clear evidence in this regard. None of the witnesses actually knows the day on which the Will executed, registered etc. Of course evidence of DW1 is to the effect that he had seen execution of the will and Registrar was brought to the house of Makkunni. It is true that Makkunni has chosen to confer benefits on his two sons. However the daughters are not totally disinherited. The testator had directed that each of his daughters must be paid an amount of Rs.500/- within a year of his death. As rightly noticed by the lower appellate court that the facts and circumstances of the case, the custom and practice :14: S.A.No. 262 of 1999 & S.A.No.278 of 1999 followed by the parties, their mental ability, their personal law etc may influence a person to make certain arrangements. The lower appellate court cannot be said to have fall into error in observing that Makkunni must have discharged all his parental obligations at the time of marriage of his daughters. 17. The learned counsel for the appellants pointed out that there is no evidence in that regard and the assumption made by the lower appellate court is not justified. The evidence is sufficient to show that Makkunni was staying with Sankaran one of his sons, PW1 claimed that she used to attend to Makkunni. The evidence is to the effect that daughters were staying with their husbands. If Makkunni was being looked after by Sankaran his son, preference shown in the matter of bequeath cannot be said to unfair, unjust and improper. 18. Evidence of PW2 is relied on to show that Makkunni was laid up nearly 2 to 4 years prior to his deals :15: S.A.No. 262 of 1999 & S.A.No.278 of 1999 and he was incapable of executing any document. As already noticed there is absolutely no evidence in this regard. She too says that he was treated by a Doctor. We must remember her status is challenged. It is unnecessary to go into the question regarding status of DWs 4 and 5 in this proceeding. On consideration of the entire evidence of the case, no grounds are made out warranting interference with the findings of the lower appellate court. It is not shown that the finding either perverse or unwarranted by the evidence on record. No substantial question of law arises for consideration in these second appeals. These second appeals are without any merits and accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE KKJ