IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P. BHAVADASAN TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933 RFA. No. 163 of 2004 (E) -------------------------------- OS.10/1990 of SUB COURT, OTTAPPALAM .............................................................................. (S): APPELLANT/PLAINTIFF --------------------------------------- PADMAVATHY D/O. PALLIYALIL THARAKAN, RESIDING AT VERAMANGALAM AMSOM, CHEMMANNUR DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.T.C.SURESH MENON SMT.M.R.VALSA SRI.SREEKANTH.K.R SMT.G.GEETHISHA RESPONDENT(S): DEFENDANTS 1 TO 4 ------------------------------------------------------- * 1. VASU S/O. PALLIYALIL RAMA THARAKAN. (DIED) 2. KUNHIRAMAN S/O. PALLIYALIL RAMA THARAKAN. 3. SANKARANARAYANAN S/O. LLIYALIL RAMA THARAKAN. 4. KUNHILAKSHMI AMMAL D/O. PALLIYALIL RAM THARAKAN. ALL ARE RESIDING AT VEERAMANGALAM AMSOM, CHEMMANNUR DESOM, OTTAPALM TALUK, PALAKKAD DIST. ** ADDITIONAL RESPONDENTS 5 TO 7 IMPLEADED 5. JANAKI, WIDOW OF VASU. 6. GEETHA, D/O LATE VASU. 7. ANIL, S/O LATE VASU. ALL ARE RESIDING AT VEERAMANGALAM AMSOM, CHEMMANNUR DESOM, OTTAPALM TALUK, PALAKKAD DIST. ** ADDITIONAL RESPONDENTS 5 TO 7 IMPLEADED AS THE LR'S OF THE DECEASED 1ST RESPONDENT VIDE ORDER DATED 23. 3. 2007 ON 1A 454/2005. BY ADV. SMT.PREETHY KARUNAKARAN FOR R1 & R2 SRI.R.RAJESH KORMATH FOR R1 & R2 SRI.JAYKAR.K.S. FOR R1 & R2 SRI.RAHUL VARMA FOR R1 & R2 SMT.PREETHY KARUNAKARAN FOR R3,ADDL.R5TO7 SRI.R.RAJESH KORMATH FOR R3 SMT.MEENA.A. FOR R3,ADDL.R5TO7 SRI.RAHUL VARMA FOR R3 SRI.V.S.ROBIN FOR R3 SMT.M.R.MINI FOR ADDL.R5TO7 SRI.JAYKAR.K.S. FOR ADDL.R5TO7 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RK P.BHAVADASAN, J. ------------------------------------- RFA No.163 of 2004 ------------------------------------- Dated this the 20th day of December 2011 Judgment The sole issue that arises for consideration in this appeal is whether the finding of the court below that Ext.B13 Will said to have been executed by Payamma alias Ammu Ammal, the mother of the parties to the suit, is just and proper. 2. The appeal has been filed by the plaintiff in a suit for partition. There were eight items of properties. The plaint schedule properties belonged to the father of the plaintiff and defendants 1 to 4 and the husband of the 5th defendant. The plaint then narrates the manner of acquisition of properties by late father of the plaintiff and defendants 1 to 4. It was claimed that the plaintiff and defendants are entitled to 1/6 share in the plaint schedule property after the death of father namely, Rama Tharakan. In spite of demand for partition, the defendants were not RFA 163/04 2 willing to give the plaintiff her share and therefore, the suit was laid. 3. Defendants filed a joint written statement contending that Shri.Rama Tharakan had no subsisting right over the suit property at the time of his death and it belonged to their mother, the 5th defendant namely Payamma alias Ammu Ammal. Since it exclusively belonged to her, she was in exclusive possession and enjoyment of the properties and the plaintiff had no manner of right to claim partition. 4. The third defendant filed a separate written statement wherein he too asserted that the plaint schedule properties belong exclusively to the 5th defendant and she is in enjoyment of the same. He contended that he was away in Madras for more than 20 years. 5. The fifth defendant also filed a separate written statement, in which she disputed the claim of the plaintiff that the suit properties are liable to be partitioned. It was admitted that the initial lease in respect of the RFA 163/04 3 properties was in favour of Rama Tharakan. But, it was pointed out that for arrears of rent, when the suit property was brought to sale, the fifth defendant executed a fresh lease agreement with the landlord and thereafter, the properties were outstanding in her possession and enjoyment. She too prayed for dismissal of the suit. 6. It appears that the trial court raised necessary issues for consideration. On an evaluation of the evidence in the case, the trial court found that Rama Tharakan had no subsisting interest over the properties and therefore, the claim for partition had necessarily to fail. The suit was accordingly dismissed. 7. The aggrieved plaintiff carried the matter in appeal before this court as AS No.217/93. During the pendency of the appeal before this court, it appears that the 5th defendant died. While disposing of the appeal, this court found that even assuming that the properties did not belong to Rama Tharakan, on the death of the 5th defendant, the plaintiff being one of the legal heirs, is RFA 163/04 4 entitled to a share in the property left behind by the fifth defendant and that aspect had to be considered. This court also took note of the fact that the contesting defendants had produced Ext.B13 Will said to have been executed by Payamma. The plaintiff had disputed the genuineness of the said Will. In the light of these facts, this court thought it fit and proper to allow the appeal and remand the matter to the trial court for consideration of the genuineness of the Will. 8. After remand, further evidence was adduced in the case, which consists of the testimony of PW1 and documents marked as Exts.A1 to A6 from the side of the plaintiff. The defendants had DWs 1 to 4 examined and Exts.B1 to B15 marked. 9. On an appreciation of the evidence in the case, the trial court came to the conclusion that the propounder of the Will has succeeded in establishing that Ext.B13 is a genuine document and therefore, again non- suited the plaintiff. The said judgment and decree are RFA 163/04 5 assailed in this appeal. 10. The learned counsel for the appellant pointed out that the court below was not justified in coming to the conclusion that Ext.B13 is a genuine document and it was in fact, been executed by Payamma. Referring to Ext.B13 Will, the learned counsel pointed out that it is very evident from a perusal of the document that it does not contain the signature of Payamma. Reference was made to the signature put at the bottom of the pages and also on the reverse side of Ext.B13. Reference was also made to the evidence of DW2, who, according to the learned counsel, is the scribe and who has also acted as the attesting witness. His evidence, according to the learned counsel, is insufficient to show that it was Payamma who had executed Ext.B13. Reference was also made to the evidence of DW1 in extenso and it was pointed out that a reading of his evidence is sufficient to show that the entire case built up by the defendants on Ext.B13 is false. Even according to Payamma, who was examined as DW1 RFA 163/04 6 earlier, initially, there was a Will executed by her and her husband and there is no mention about that Will subsequently nor has that Will been produced. A mere perusal of the admitted signature of Payamma with the signature that is found on Ext.B13 would clearly show that the signature found on Ext.B13 could not be that of Payamma. It is also pointed out that the Will was registered on the subsequent day and it is inconceivable that there would be substantial difference in the signatures of Payamma, which would indicate that the claim of the the defendants that Ext.B13 is a genuine document, is open to serious doubts. According to the learned counsel, it is trite that the burden of proof of the genuineness of the Will is on the propounder of the Will. In support of the said proposition, the learned counsel relied on the decision in Sreenivasa v. Padmavathamma (2010(5) SCC 274). 11. Per contra, the learned counsel for the respondents pointed out that it is true that there is difference in the signatures of Payamma in Ext.B13 and RFA 163/04 7 those found in the depositions in court and so also Ext.B5. But the only contention taken against the Will was that it was not a genuine document. Once the attesting witness is examined and his evidence is found to be acceptable, merely because there is a difference in the signatures, that is not a ground to reject the Will. The learned counsel went on to point out that the attesting witness i.e., DW2 has spoken about the due execution of the Will and it is found that there is no infirmity in his evidence. 12. As regards the evidence of DW4, it was contended that he was only an identifying witness and his evidence is not of much significance as regards attestation of the Will. The learned counsel drew attention of this court to the fact that the Will is a registered document and the registering authority has been examined as DW3. The document contains necessary endorsements made by the registering authority. The evidence of DW3 along with the endorsements made on the reverse of Ext.B13 and also the evidence of DW2 are sufficient to show that the Will RFA 163/04 8 had, in fact, been executed by Payamma. Attention of this court was drawn to the fact that there was no dispute regarding the testamentary capacity of the testator. A suggestion to DW2 was that he had in connivance with the first defendant, manipulated Ext.B13 document. The learned counsel also drew attention of this court to the distribution of assets as per Ext.B13 and pointed out that the first defendant had derived the least benefit under the Will. If, as a matter of fact, he was instrumental in manipulating the document, it would have been otherwise. The learned counsel, in support of the said contention relied on the decision in Devassykutty v. Visalakshy Amma(2010(3) KLT 1010). 13. Law regarding proof of Will is well settled. Section 63 of the Evidence Act deals with execution of a Will. Section 68 deals with evidence in proof of execution of Will. Going by Section 63, Will has to be in writing and has to be attested by at least two attesting witnesses. The RFA 163/04 9 attesting witnesses will have to see the executor sign the document or receive acknowledgement of his signature. The executor will have to see that the attesting witness affixes the registration to the Will. It is true that apart from proving the execution of Will, if there is any suspicious circumstance, that will have to be satisfactorily explained by the propounder of the Will. In the decision H.Venkatachala Iyengar v. B.N.Thimmajamma reported in AIR 1959 SC 443, it was held as follows : “The party propounding a Will or otherwise 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 RFA 163/04 10 and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person 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 so say that the will has to be proved like RFA 163/04 11 any other document except as to the special requirements of attestation prescribed by Section 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.” 14. In the decision reported in Sreenivasa v. Padmavathamma (supra), it has been held as follows : “In H.Venkatachala Iyengar v. B.N.Thimmajamma, Gajendragadkr, J. stated the true legal position in the matter of proof of Wills. The aforesaid statement of law was further clarified by Chandrachud J, in Jaswant Kaur v. Amrit Kaur as follows : “1. State generally, a Will has to be proved like RFA 163/04 12 any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of will, one cannot insist on proof with mathematical certainty. 2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, 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. 3. Unlike other documents, the will speaks from the death of the testator and therefore, the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an RFA 163/04 13 element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. 4. Cases in which the execution fo the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of he will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound RFA 163/04 14 and disposing state of mind and memory at the time when the will as made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will fo the testator. 5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasis that in determining the question as to whether an instrument produced before the RFA 163/04 15 court is the last will of the testatory, the court is called upon to decide a solemn question and by reason of suspicious circumstances, the court has to be satisfied fully that the will has been validly executed by the testator. 6. If a caveator alleges fraud, undue influence, coercion, etc., in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances, surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus fo the propounder to remove all reasonable doubts in the matter.” Applying the aforesaid principles to this case, it would become evident that the will has not been duly proved. 39. As noticed earlier in this case, none of the attesting witnesses have been examined. The RFA 163/04 16 scribe, who was examined as DW2 has not stated that he had signed the will with the intention to attest. In his evidence, he has merely stated that he was the scribe of the will. He even admitted that he could not remember the names of the witnesses to the will. In such circumstances, the observations made by this court in M.L.Abdul Jabbar Sahib v. M.V.Venkata Sastri & Sons become relevant. Considering the question as to whether a scribe could also be an attesting witness, it is observed as follows : “7. .......It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgement of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or registering officer, he is RFA 163/04 17 not an attesting witness.” It has at once to be noticed that in the above decision, the facts indicate that none of the attesting witnesses had been examined, but in the case on hand, DW2 has been examined. As rightly pointed out by the learned counsel for the respondents, the testamentary capacity of Payamma is not in dispute. The main attack seems to be against the signature found on Ext.B13. It is true that there is considerable difference between the signatures found on Ext.B13 and Ext.B5 and also the depositions in court. It has also to be remembered that the signature on Ext.B13 Will and the signature on the reverse side of the first page of Ext.B13 also differ. There is no case that Ext.B5 does not contain the signature of Payamma. At best, one could say that she has no consistent signature. It can be discerned from the evidence that she was an illiterate lady. 15. One has, now, to refer to the evidence of DW2, who is one of the attesting witnesses. He is the scribe of the document also. A perusal of Ext.B13 shows RFA 163/04 18 that he has signed in the capacity of attesting witness also apart from being the scribe of the document. He would depose that the details for drawing of the Will were narrated to him by Payamma and he prepared a draft, which was read over to her, which she approved. He would also say that on that day, she wanted him to draw up a Power of Attorney also which is marked as Ext.B14. He would then say that he has signed as the first attesting witness in Ext.B13. His further evidence is to the effect that the testator signed the Will in his presence and so also the other attesting witness namely, Unnikrishnan. He would further say that Payamma had seen both the attesting witnesses sign the document. He states that at the relevant time, Payamma was in full possession of her faculties. In cross examination, he admitted that in Exts.B13 and B14, his name was written by him. He has also stated that Payamma had come along with her husband for drawing up of the Will. Suggestion to him in the cross examination is that he had connived with the first RFA 163/04 19 defendant for drawing of Ext.B13 document and that it was, in fact, not executed by Payamma, which he denied. 16. The registering authority was examined as DW3. He speaks about the procedure followed while registering the document and asserts that all the procedures have been properly complied with. It is specifically stated by him that he had ascertained from the testator whether she was aware of the contents of the document and whether it was being executed voluntarily. He claims that the executor answered in the affirmative. In cross examination, the witness stated that there is difference between the signature on the first page of Ext.B13 and the signature found on the reverse side of Ext.B13. He also stated that at the time of registration, he had not noticed it and it was noticed for the first time only at the time of examination in court. However, the witness asserted that at the time of registration, the signature found on the reverse side of the first page of Ext.,B13 was, in fact, affixed by Payamma. He would also say that the RFA 163/04 20 executant was duly identified by the identifying witness. 17. DW4 is the identifying witness. He would say that he and one Unnikrishnan had gone to the house of Payamma on the date of execution of the document as requested by Payamma. It was only after they reached the house of Payamma that the scribe had arrived there and he had brought a Will and a Power of Attorney. After executing the Will, he would say that after affixing the signature in the document, he, Unnikrishnan, Payamma and Rama Tharakan went to the Registrar's office. He identified his signatures on Exts.B13 and B14. In cross examination, it was brought out that he was close to the first defendant and the first defendant has stood as witness in one of the documents in his favour. He has stated that the act of registration etc. took only 10 to 15 minutes. He would also say that at the time of registration, he saw Payamma affixing her thump impression on the document. He then says that he is not familiar with the signature of Unnikrishnan. But, at the same time, he has also signed in RFA 163/04 21 the document. In cross examination, he says that he cannot identify the signature of Payamma. In the cross examination, he also stated that he does not know as to who has signed on the first page of Ext.B13. He would only say that he has signed as an identifying witness. 18. The learned counsel for the appellant pointed out that the evidence of DWs 2 and 4 are totally insufficient to come to the conclusion that the document is, in fact, executed by Payamma. The evidence of DW4 may not have much relevance regarding the execution of the document for he is examined only for the purpose of showing that he was one of the identifying witnesses before the Registrar. 19. It is true that the evidence of DW2 is far from satisfactory, with reference to the registration of Ext.B13. As regards registration of the document, the evidence of DW3 is available. DW3 has spoken about the procedure followed by him while registering the document and there is nothing to show that the procedure as contemplated as per RFA 163/04 22 law has not been followed. In the light of the categoric statement made by DW3 regarding the form of registration, even assuming that the evidence of DW4 cannot be accepted, that might not have much bearing on the execution of the document. 20. One has now, to return to the evidence of DW2. Before that, one fact has to be noticed. None of the propounders of the Will has been examined. It looks very strange. But, if the evidence of DW2 is sufficient to establish the execution of the Will, that will meet the requirement of law. 21. DW2, as both the scribe and the attesting witness, has put his signature also as an attesting witness, thereby indicating that he has signed in the document in two independent capacities. He has also spoken about the testamentary capacity of the testator. His evidence is clear to the effect that the testator has signed