IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 AS.No. 823 of 1998(A) --------------------- OS.245/1991 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT(S): PLAINTIFF -------------- RAJAMMA, W/O. CHAMIYAPPAN CHETTIYAR, D/O. CHAMI CHETTIYAR, PALAYAM, VANDAZHI AMSOM, P.O. VANDAZHI, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.N.SUBRAMANIAN SRI.M.S.NARAYANAN RESPONDENT(S): DEFENDANTS 1 TO 12. --------------- 1. AMMU, W/O. LATE KARUPPAN, RESIDING AT CHAVADIPARAMBU, THIRUNELLAYI, PIRAYIRI AMSOM AND DESOM, P.O.THIRUNELLAYI, PALAKKAD TALUK AND DISTRICT. 2. YASODA, D/O. LATE KARUPPAN, DO. DO. 3. SARADHA, DO. DO. DO. 4. SANTHA, DO. DO. DO. 5. SAKUNTHALA, DO. DO. DO. 6. SAVITHRI, DO. DO. DO. 7. SYAMALA, DO. DO. DO. 8. PARVATHI (MINOR) DO. DO. DO. 9. SANTHOSH (MINOR) DO. DO. DO. (R8 AND R9 MINORS ARE REP. BY THEIR MOTHER GUARDIAN R1 AMMU.) 10. THANKAMMA, W/O. CHINNAVAN, ATHIKKOTTUPARAMBIL, PIRAYIRI, THIRUNELLAYI, P.O.THIRUNELLAYI, PALAKKAD TALUK AND DISTRICT. 11. KUPPACHI ALIAS KUPPAMMA, W/O. CHELLAAKUTTI, ATHIKKOTTUPARAMBU, THIRUNELLAYI, P.O.THIRUNELLAYI, PALAKKAD TALUK AND DISTRICT. 12. PARU, W/O. SUBRAMANYAN, NAITHALAYIL, ELAPPULI AMSOM, P.O.ELAPPULLI, PALAKKAD TALUK AND DISTRICT. ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON FOR R1, 3 TO 6 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 21/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. -------------------------------------- A.S. 823 of 1998 -------------------------------------- Dated: AUGUST 21, 2009 JUDGMENT The plaintiff in O.S.245 of 1991 of Sub Court, Palakkad, is the appellant. The judgment and decree of the lower court dismissing the suit for partition and separate possession of the plaint A, B and C schedule properties is challenged by the appellant. 2. The case of the appellant/plaintiff as stated in the plaint and as testified by her as PW.1 before the lower court in brief is this: The plaint A schedule property belonged to late Chami Chettiyar and and B and C schedule properties to late Nagammal Amma. They died intestate. Plaintiff and defendants 10 to 12 are the children of Chami Chettiyar and Nagammal Amma. Defendants 1 to 9 are the wife and children of Karuppan, the only son of Chami Chettiyar and Nagammal Amma. The plaintiff claimed partition and separate possession of her share over the plaint schedule properties. 3. Initially all the defendants filed a joint written statement contending that the deceased Chami Chettiyar and Nagammal A.S. 823 of 1998 2 Amma executed two separate registered wills on August 30, 1976, Exts.B2 and B3, bequeathing their properties to Karuppan and that therefore the plaint schedule properties are not partible. Defendants 10 and 11 later filed separate written statements disputing the execution of the said wills and claimed their 1/5th share over the properties. 4. The plaintiff was examined as PW.1 and she produced Exts.A1 and A2 before the lower court. Pws.1 to 5 were examined and Exts.B1 to B4 were marked on the side of the defendants. The lower court on an appreciation of evidence found that the execution of the wills Exts.B2 and B3 is duly proved and that there was no suspicious circumstance surrounding the execution of the will and dismissed the suit. The plaintiff is challenging the said judgment and decree in this appeal. 5. Sri Subramaniam, learned counsel for the appellant/plaintiff, mainly argued that the wills Exts.B2 and B3 were not duly proved, that it was not pleaded or proved by the defendants that Exts.B2 and B3 were the last wills of deceased A.S. 823 of 1998 3 Chami Chettiyar and Nagammal Amma and that therefore the lower court went wrong in dismissing the suit. 6. Sri Chidambaresh, learned counsel for the respondents/defendants supporting the judgment would argue that the wills Exts.B2 and B3 were duly proved. 7. The only question which arises for consideration is whether the due execution of the wills Exts.B2 and B3 were proved and that those were the last wills of the deceased Chami Chettiyar and Nagammal Amma respectively. Having regard to the provisions of Section 68 of Evidence Act and Section 63 of Succession Act, a will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove it. The attesting witness should speak not only about testator's signature or affixing his mark to the will, but also that each of the witnesses had signed the will in the presence of the testator as held by the Apex Court in Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh and others 2009(4) Supreme Court Cases 780). The Apex Court has held in Babu A.S. 823 of 1998 4 Singh & Others v. Ram Sahai @ Ram Singh ( AIR 2008 Supreme Court 2485) that the propounder has to explain by leading evidence, surrounding, suspicious circumstances. 8. For proving the execution of the wills Exts.B2 and B3, DW.2, the scribe of both the wills, and DW.3, the son of one of the deceased attestors of the will, were examined. They have given a consistent version regarding the execution of the wills Exts.B2 and B3. The lower court has discussed their evidence in detail and believed their version. I have gone through their evidence. I find no suspicious inconsistencies in their evidence to disbelieve their evidence. Therefore I am in complete agreement with the lower court that the execution of Exts.B2 and B3 is duly proved. 9. Learned counsel for the appellant argued that the suspicious circumstance, if any, about the execution of the wills should be explained by the defendants, which they did not do before lower court and that therefore the lower court went wrong in finding that the execution of the wills in dispute is proved. There is no substance in the above contention. It is true that A.S. 823 of 1998 5 the beneficiaries should explain the suspicious circumstances surrounding the execution of the will as held in Smt. Jaswant Kaur v. Smt. Amrit Kaur and others - AIR 1977 SC 74. The only suspicious circumstance pointed out by the learned counsel for the appellant is that the deceased Chami Chettiyar and Nagammal Amma being illiterate persons, they would have been won over by the deceased Karuppan and that instead of putting their thumb impression, the testators have put their signature in the wills. But, in my view, it cannot be treated as a suspicious circumstance. The evidence of Dws.2 and 3 prove beyond doubt the due execution of Exts.B2 and B3. 10. Learned counsel for the appellant cited the decisions in Natarajan v. Sree Narayana D.S. Trust (1995 (2) KLT 862) and Smt. Shailabai v. Sudhabai and others (1995 A I HC 6687 (Bombay High Court) and argued that the defendants should have pleaded and proved that Exts.B2 and B3 were the last wills of the testators, which they did not do and that therefore the lower court is not justified in holding that the execution of Exts.B2 and B3 was duly proved. There is no merit in the above A.S. 823 of 1998 6 contention. The plaintiff has not raised such a contention before the lower court. Further, the plaintiff has no case that the deceased Chami Chettiyar and Nagammal Amma executed any other will. Therefore I find no merit in the above contention raised by the appellant. 11. I have gone through the judgment of the lower court and the evidence adduced by both parties. I find no reason to interfere with the findings entered by the lower court that the wills Exts.B2 and B3 are duly proved and that the plaint schedule properties are not partible. In the result the appeal is dismissed with costs. P.Q. BARKATH ALI, JUDGE mt/-