IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 AS.No. 771 of 1998(C) --------------------- OS.161/1995 of SUB COURT, HOSDRUG .................... APPELLANTS/PLAINTIFF: ----------------------------------- K.N.JOSEPH, SON OF LATE KANIPARAMBIL MATHAI RESIDING AT BALAL VILLAGE, HOSDRUG TALUK, P.O. BALAL. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN RESPONDENTS/DEFENDANTS: ------------------------------------------ 1. ANNAMMA, W/O. KANIPARAMBIL MATHAI, RESIDING AT KUNDUPALLY, BALAL VILLAGE, HOSDRUG TALUK, P.O. BALAL, VIA. PARAPPA. 2. KANIPARAMBIL VARKEY, S/O. DO. DO 3. KANIPARAMBIL MATHEW, S/O. DO. RESIDING AT KOOTAKULAM, WEST ELERI VILLAGE, HOSDRUG TALUK, P.O. PUNNUKUNNU, VIA. PARAPPA. 4. ACHAMMA, D/O. DO. RESIDING AT CHERIVELIL VEEDU, PULINGOM VILLAGE, TALIPARAMBA TALUK, P.O. CHUNDA, VIA. CHERUPUZHA, WIFE OF C.K. JOSEPH. 5. MANY KANIPARAMBIL, W/O. JOSEPH ALIAS JOY D/O. DO. RESIDING AT AMMIYANIKKAL VEEDU VALLIKADAVU, MALOM VILLAGE, HOSDRUG TALUK, P.O. VALLIKADAVU, VIA. PARAPPA. 6. PONNAMMA KANIPARAMBIL, D/O. DO. & WIFE OF EPPACHAN KIZHAKKAM KAROYIL VEEDU, RESIDING AT MAVULLAL, KINANORE VILLAGE, HOSDRUG TALUK, P.O. VELLARIKUNDU. 7. LEELAMMA, D/O. DO. & W/O. KARIYACHAN, KOTTAKKAKOTH VEEDU, RESIDING AT MACHIPPALLI, BALANTHODU, PANATHADY VILLAGE, HOSDRUG TALUK, P.O. RAJAPURAM. 8. ROSAMMA KANIPARAMBIL D/O. DO. AND W/O. JOSEPH PADINHAREYIL VEEDU, THADIYANVALAPPIL, KODOM VILLAGE, HOSDRUG TALUK, P.O. KANHIRADUKKAM, VIA. ANANDASHRAM. ADV. SRI.P.R.VENKETESH SRI.R.BINDU (SASTHAMANGALAM) FOR SRI.P.R.VENKETESH FOR R1,4,5,7,8 SRI.P.R.RAJA FOR R1,4,5,7,8 SRI.K.JAYAKUMAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 17/06/2009, THE COURT ON 24/06/2009 DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO. 6251/98 IN A.S.NO. 771/1998 DISMISSED 24.6.2009 SD/- M.L.JOSEPH FRANCIS, JUDGE /TRUE COPY/ M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - A.S.No. 771 of 1998 - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of June, 2009 JUDGMENT This appeal is filed by the plaintiff in O.S.No.161 of 1995 on the file of the Sub Court, Hosdrug. The respondents are the defendants in that suit. That is a suit for declaration and partition. 2. The case of the plaintiff is briefly as follows. The plaint schedule property belonged to late Kanniparambil Mathai as per Assignment Deed No.892 of 1957. The first defendant is the wife, defendants 2 and 3 are the sons and supplemental defendants 4 to 8 are daughters of deceased Mathai. Mathai purchased the jenm right over the plaint schedule property from the Land Tribunal, Kanhangad as per Purchase Certificate No.434 of 1979. Mathai expired on 22.10.1994. After his death, the plaint schedule property devolved upon the plaintiff and the defendants. Defendants 1 and 2 are managing the property for and on A.S.No. 771 of 1998 2 behalf of the co-owners. The plaintiff does not want to remain as a co-owner and therefore he sent a lawyer notice dt.16.1.1994, to which the defendants did not send any reply. 3. The defendants have denied the plaintiff's right in the property. They relied on a Will said to have been left by the father, Mathai. The plaintiff contended that his late father was not in a sound disposing state of mind and he was unable to know the consequences of the alleged disposition. He was having a feeble state of health. This document is brought up by fraud and deceit played by the defendants and that the will is not a voluntary one. The plaintiff would contend that the said will is not a genuine document and it is only a creation of the defendants. Therefore, a decree is sought for declaring the Will as null and void. A decree for partition is also sought to partition the plaint schedule property into four equal shares and for allotment of one such share to the plaintiff. A.S.No. 771 of 1998 3 4. Defendants 1 to 3 filed joint written statement, in which the facts stated in the plaint have been admitted. But they disputed the contention that the alleged Will is their fabrication. The Will was executed by their father out of his free will and that he was in a sound disposing state of mind at the time of execution of the Will. The alleged fraud and undue influence are denied. The execution of the Will was known to all the family members and they have not objected to the same. In pursuance to the death of the testator, defendants 2 and 3 had spent huge amount for improving the property. The execution of the Will was known to the plaintiff prior to the death of the testator. He had waited till the death of their father to sue the defendants. The plaintiff was residing away from the property and their father had given financial assistance to him. If he is challenging the Will and demanding the property for partition, then all the children of late testator should have been made parties to the suit. This inaction of the plaintiff itself is an A.S.No. 771 of 1998 4 indication that he was aware about the existence and execution of the Will. 5. On receiving the notice, defendant No.3 has seen the plaintiff personally and made enquiries about the notice. The plaintiff has answered that he would not initiate any legal proceedings and therefore no reply notice was sent. In pursuance to the notice, the third defendant invited the plaintiff to come over to his house for a discussion and as such on 29.11.1994 all of them had discussed the matter. Meanwhile, the third defendant has shown the original Will to the plaintiff and he read it and assured that he was satisfied with the document and he would not take any action as offered in his notice. But he requested for the document for taking a photostat copy and undertaken to return it to the next day i.e. on 30.11.1994. But so far he has not returned the same. He has in fact cheated the defendants. Believing the words of the plaintiff, they have not sent a reply and they have handed over the Will to the plaintiff. A.S.No. 771 of 1998 5 The late father was having all testamentary capacity at the time of execution of the Will and the property is not liable to be partitioned as claimed by the plaintiff. They submitted that the suit is liable to be dismissed. 6. Defendants 4 to 8 have filed joint written statement admitting the execution and existence of a Will left by their father. They are not claiming any right over the property left by their father. The suit is liable to be dismissed, it is submitted. 7. In the Sub Court PWs. 1 and 2 and DWs. 1 to 6 were examined. Exts.A1 to A3, B1 to B4 and X1 and X2 were marked. The learned Sub Judge, on considering the evidence, dismissed the suit with cost, on finding that the Will executed by Mathai is genuine and came into effect. Against that judgment and decree the plaintiff filed this appeal. 8. Heard the learned counsel for the appellant and the learned counsel for the respondents. A.S.No. 771 of 1998 6 9. The learned counsel for the appellant submitted that the defendants, who propound the Will, have failed to discharge the burden to establish the execution and genuineness of the Will and that the non-production of the original of the Will by the defendants is fatal to the case of the defendants. The learned counsel for the appellant invited my attention to the decision in H.Venkatachala Iyerngar v. B.N. Thimmajamma (AIR 1959 SC 443), in which it was held: “ The parties 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 Section 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 A.S.No. 771 of 1998 7 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 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. A.S.No. 771 of 1998 8 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 world 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 A.S.No. 771 of 1998 9 the testator's mind and his signature as required by law, Court would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.” 10. The relationship between the parties is not disputed. The first defendant is the wife, plaintiff and defendants 2 and 3 are the sons and supplemental defendants 4 to 8 are daughters of late Kanniparambil Mathai. There is also no dispute that the plaint schedule property belonged Kanniparambil Mathai and that he died on 22.10.1994. In the plaint it is alleged that defendants 1 to 3 had managed and manipulated to get a will executed and registered by late Kanniparambil Mathai as Will No. 15 of 1990 of S.R.O., Balal and that the will was not executed by late Mathai out of his free will and pleasure and that he was not of sound disposing mind. From these allegations it is A.S.No. 771 of 1998 10 evident that the plaintiff is admitting the execution of the will by Mathai. Ext.A3 is the registration copy of Will No. 15 of 1990 dated 11.4.1990 executed by Kanniparambil Mathai. 11. The prayer in the plaint is to declare that the Will dated 11.4.1990 executed by Mathai is null and void and to partition the plaint schedule properties into four equal shares and allot one share to the plaintiff. In this case the original of Ext.A3 Will is not produced by defendants 1 to 3. They contend that after the receipt of the lawyer notice from the plaintiff demanding partition, the third defendant had a discussion with the plaintiff and the third defendant handed over the original will to the plaintiff for the purpose of taking a photostat copy and the plaintiff did not return the original will so far. But the plaintiff denies this allegation. Since the original will is not available, Ext.A3 registration copy of that registered will would be admissible under Section 65 of the Evidence Act r/w. Section 57 of the Registration Act. A.S.No. 771 of 1998 11 12. Ext.X2 is the copy of the will register of S.R.O., Balal, page Nos. 19 to 23 dt.11.4.1990. DW2, Mathew Thomas is a scribe, who is having his office at Balal. He swears that Mathai came to his office for the purpose of preparing a will. When the original of Ext.X2 produced from the Sub Registrar's office was shown to the witness, he admits that it was written in his handwriting and that the original of the will was prepared in the handwriting of Scribe Balakrishnan, who was working along with him. When the original of Ext.X2 was shown to the witness, he deposed that in the original of Ext.X2 and in the original will he had signed as an attesting witness and that one George was another attesting witness to the original will. DW2 swears that Mathai affixed his signature in the will and then he signed it. DW2 further swears that when the contents of the original will was read over to Mathai by Balakrishnan, he heard it and he signed after understanding its contents. A.S.No. 771 of 1998 12 13. DW3, Balakrishnan, swears that the original of Ext.A3 will was written in his handwriting. DW4, George, is another attesting witness to the original of Ext.A3 will. DW4 deposed that he saw Mathai signing the original of Ext.A3 and thereafter he signed it and after that DW2 signed it. DW5 deposed that he went to the Sub Registrar's office along with Mathai and that he signed in the records of the Registrar's office. In Ext.X2 and Ext.A3 the name of DWs. 2 and 4 are mentioned as attesting witnesses and the name of DW5 is mentioned as identifying witness. Even if an attesting witness to a will inadvertently omitted to state that he signed as such in the presence of the testator, as he narrated the sequence from which it could be gathered that he signed in the presence of the testator. Such technical errors in not using the language of the section is not enough to invalidate a will. 14. DW1 is the accountant of Maloth Service Co- operative Bank. He deposed that Account No.340 is that of A.S.No. 771 of 1998 13 Kanniparambil Mathai. Ext.X1 is the copy of the ledger. DW1 swears that the account was started on 1.7.1982 and that the last withdrawal of cash was on 24.12.1993 and that Mathai used to come to the bank for operating the account. Ext.B4 is the pass book kept by deceased Mathai, which corresponds to Ext.X1. From the testimony of DW1, it is clear that atleast till 24.12.1993 Mathai was keeping sound disposing mind. The original of Ext.A3 will was executed by Mathai on 11.4.1990. Therefore, it can safely be concluded that at the time of executing the Will on 11.4.1990, Mathai was having testamentary capacity. Nothing is brought out to discredit the testimony of DWs. 1 to 5. Since execution of the will is proved by DWs. 2 to 5, the burden is on the plaintiff to prove that the will was obtained by undue influence or coercion or playing fraud. 15. The plaintiff was examined as PW1. He swears that he was working in an estate situated near to the house of his A.S.No. 771 of 1998 14 father and he used to go to the house till 1978. Thereafter he did not go to that house. PW1 admits that when the father died, he did not participate in the funeral. From this version it is evident that the relationship between the plaintiff and his father Mathai was not cordial. PW1 swears that he came to know about the Will after the death of his father. PW2 swears that Mathai was laid up with rheumatic complaint for 5 to 6 years of his death and that Mathai was not having mental capacity to execute any document. The testimony of PW2 that Mathai was laid up for 5 - 6 years of his death is disproved by the testimony of DW1, which is supported by Exts.X1 and B4. There is no reliable evidence to show that the original of Ext.A3 will was executed by Mathai under the influence of fraud or collusion. In Ext.A3 it is stated by the testator that the first defendant, his wife, and defendants 2 and 3, his sons, are looking after his needs and as he had already given property to the plaintiff - his A.S.No. 771 of 1998 15 son, no property is given to the plaintiff by the Will and the properties were alloted to defendants 2 and 3. 16. According to defendants 1 to 3, the property covered by the original of Ext.B1 Sale Deed was purchased by Mathai in the name of the plaintiff. Usually a Will is executed to alter the ordinary mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of natural heirs. If a person intends to his property to pass to his natural heirs, there is no necessity at all of executing a will. It is true that the propounder of the Will has to remove all suspicious circumstances. In Ext.A3 will itself the testator assigned reasons for excluding his son, the plaintiff, and daughters. Supplemental defendants 4 to 6 who are daughters of the testator admitted in their written statement that the original of Ext.A3 will was executed by their father Mathai. 17. The learned counsel for the appellant relied on the decision in Durga Parshad v. Debi Charan (AIR 1979 SC A.S.No. 771 of 1998 16 145) and argued that since the original will is not forthcoming, it can be inferred that the will is revoked by the testator. But the appellant and respondents have no such case. The appellant has not shown any obvious reasons or clear motive for the testator to revoke the will. If the will is not found on the death of the testator, it may well be that the will was misplaced or lost or was stolen by interested persons. In the present case, the definite case of defendants 1 to 3 is that the third defendant entrusted the original will to the plaintiff for convincing him about its genuineness and the plaintiff kept the will in his custody for the purpose of taking a photostat copy and thereafter he did not return the same, appears to be probable, considering the facts and circumstances of the case. 18. In view of the amendment to Section 213 of the Indian Succession Act, a Will executed by a Christian need not be probated. The evidence on record shows that the original of Ext.A3 will is genuine and it has come into effect. Therefore, A.S.No. 771 of 1998 17 the plaintiff is not entitled to get a declaration that the will is void. Since the testator has bequeathed the plaint schedule property to defendants 2 and 3 as per that will, the plaintiff is not entitled to get partition of the plaint schedule property. Therefore, I find that the learned Sub Judge is perfectly justified in dismissing the suit. Hence this appeal is without any merit and is liable to be dismissed. Accordingly, this appeal is dismissed. The judgment and decree dismissing O.S.No. 161 of 1995 on the file of the Sub Court, Hosdrug is confirmed. The parties are directed to suffer their respective cost in this appeal. (M.L. JOSEPH FRANCIS) Judge tm