IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 SA.No. 530 of 2000(D) ------------------------------ AS.171/1994 of DISTRICT COURT, KOLLAM OS.999/1996 of PRL. MUNSIFF COURT, KOLLAM .................... APPELLANT/APPELLANT/DEFENDANT: ---------------------------------------------------------- E. LAKSHMIKUTTY AMMA, KANNIMOOLA PUTHEN VEEDU, MATHILIL CHERRY, THRIKKADVOOR VILLAGE. BY ADV. SRI.K.SUBASH CHANDRA BOSE RESPONDENT/RESPONDENT/PLAINTIFF: ------------------------------------------------------------ JYOTHILAL (MINOR), THACHARAZHIKATHU HOUSE, CHETHINAMKULAM, KILIKOLLOOR, REPRESENTED BY HIS NEXT FRIEND FATHER P. THULASEEDHARAN PILLAI, RESIDING AT DO. DO. BY ADV. SRI.JOHNSON GOMEZ, SRI.P.B.SURESH KUMAR. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31/05/2011, THE COURT ON 08/06/2011 DELIVERED THE FOLLOWING: rs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 530 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of June, 2011. JUDGMENT The defendant in O.S.999 of 1986, who suffered decrees at the hands of both the courts below is the appellant. The parties and facts are herein after referred to as they are available before the trial court. 2. Late Udayakumari Amma married Thulaseedharan Pillai on 24.1.1979 and the plaintiff was born in that wedlock on 30.12.1979. The allegation in the plaint is that with the amount, which late Udayakumari Amma had at the time of her marriage, immovable properties were purchased. The property so purchased, 28 cents comprised in Sy. No. 682 of Kilikolloor Village, was later transferred in the name of Thulaseedharan Pillai as per Ext.A20 dated 16.12.1981. Unfortunately in March 1982 Udayakumari Amma fell sick and she was taken from hospital to hospital. Her S.A.530/2000. 2 decease was diagnosed as Brain Tumor. The plaint in detail narrate about the treatment undergone by her and it is unnecessary to repeat the same as the courts below have narrated the same in detail. It is claimed that the expenses for the treatment was met by her husband Thulaseedharan Pillai and neither the defendants nor any of the relatives of Udayakumari Amma contributed anything to meet the expenses of her treatment. It is further averred that late Udayakumari Amma executed Ext.A15 settlement deed dated 20.1.1984 gifting 81 cents of property which she had purchased utilizing her funds in favour of the plaintiff. Two days thereafter she executed Ext.A16 registered Will dated 23.2.1984 by which she bequeathed her properties and assets to the plaintiff. Plaint makes mention of various litigations between Udayakumari Amma and Thulaseedharan Pillai, so also the defendant in this case. It is averred in the plaint that when the illness of late Udayakumari aggravated, she was removed to District Hospital on 26.3.1985 and she was discharged on 3.4.1985 in a hopeless condition. The S.A.530/2000. 3 further allegation is that the Will Ext.A18 dated 8.4.1985 said to have been executed by late Udayakumari Amma is a fabricated and concocted one as Udayakumari Amma did not have the sound disposing state of mind and she could not understand the nature of disposition made by her at the time of execution. It is alleged that Ext.A18 will came to be executed as a result of undue influence and coercion. On the basis of these allegations, he prayed for a declaration that Ext.A18 will is not valid. 3. The defendant, who is none other than the mother of late Udayakumari Amma, resisted the suit. There are several contentions in the written statement, which are not very relevant for the purpose. It is necessary to state that the defendant points out that the sale deed in respect of 28 cents claimed to have been executed by late Udayakumari Amma in favour of Thulaseedharan Pillai is a concocted and fabricated one and that late Udayakumari Amma had not executed any sale deed in favour of her husband. In relation to the said transaction, late S.A.530/2000. 4 Udayakumari Amma had instituted O.S. 159 of 1984 which is pending consideration at the time of filing the written statement. After the death of Udayakumari Amma, the defendant has got herself impleaded to continue the proceedings. It is contended that the various items of properties made mention of in the plaint were all purchased utilizing the funds of late Udayakumari Amma and no contribution was made by Thulaseedharan Pillai. It is also stated that Thulaseedharan Pillai deserted his wife in 1983 and thereafter her affairs were being looked after by the defendant and the members of her family. It is specifically stated that the entire expenses for the treatment were met by them and Thulaseedharan Pillai did not care for his wife thereafter. It is claimed that Ext.A18 was infact executed by late Udayakumari Amma and that at the relevant time she has the necessary testamentary capacity and the allegations to the contrary are untrue. It is not correct to say that Ext.A18 will came to be executed as a result of coercion and undue influence. It was executed by S.A.530/2000. 5 Udayakumari Amma on her own volition and the document is not vitiated due to any reason. Contending that it is a valid document, the defendant prayed for a dismissal of the suit. 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of P.Ws. 1 to 6 and documents marked as Exts. A1 to A21 from the side of the plaintiff. The defendant examined D.W.1. Exts.X1 and X2 are marked as third party exhibits. On a consideration of the evidence in the case, the trial court came to the conclusion that execution of Ext.A18 will is shrouded with suspicious circumstances which could not be satisfactorily explained by the defendant and held that the will is not valid in law. 5. The disappointed defendant carried the matter in appeal as A.S. 171 of 1994 before the District Court, Kollam. The lower appellate court independently evaluated the evidence and found the reasoning and conclusions drawn by the trial court to be fully justified. Consequently S.A.530/2000. 6 the appeal was dismissed. That brings the defendant to this court. 6. Notice is seen issued on the following questions of law: “i) Whether the courts below are justified in declaring that the will dated 8.4.1985 (Ext.A18(a)) is a void and unenforceable document without legal evidence to that effect? ii) Is Ext.A18(a) 'Will' satisfy the requirement laid down under Section 63 of the Indian Succession Act? iii) Whether the courts below are justified in declaring Ext.A18(a) will as void and unenforceable in a case in which the propounder of the 'will' proved the same in compliance with the principles laid down under Sections 67 and 68 of the Evidence Act and Section 63 of Indian Succession Act? iv) Are the courts below are justified in rejecting the evidence of D.W.1, the attesting witness to Ext.A18(1) without assigning any reason? v) Whether the lower appellate court is justified in confirming decree and judgment of the S.A.530/2000. 7 trial court after entering into a finding that ill-health cannot be equated to mental defect? vi) Is the suit liable to be dismissed due to improper representation of the plaintiff by the next friend? vii) Whether the courts below are justified in finding that the testator was not in a disposing state of mind at the time of execution of Ext.A18 (a) without any legal and sustainable evidence to that effect?” 7. Learned counsel appearing for the appellant contended that the courts below were not justified in holding that Ext.18 will was vitiated due to suspicious circumstances and it is not a valid document. Learned counsel highlighted that the specific contention was that the Will was vitiated due to coercion and undue influence and if that be the case, the burden was on the plaintiff to establish those vitiating elements. The evidence of P.W.5 and D.W.1 were sufficient to show that the testator had a sound disposing state of mind and that the Will was infact executed by her. S.A.530/2000. 8 Insignificant aspects have been taken into consideration by the courts below in coming to the conclusion that the Will is not valid. Learned counsel went on to point out that even assuming that late Udayakumari Amma was physically weak, that does not lead to the conclusion that she was mentally incapacitated to execute the Will. There is absolutely no evidence to show that her mental faculties were affected by the disease, assuming what the plaintiff says is true. P.W.1, the attesting witness has spoken about the execution and attestation of the Will and his evidence is sufficient to prove the due execution of the document. It is further contended that the evidence of P.W.5, the Sub Registrar, who had registered the document clearly shows that the testator was in full possession of her mental faculties and that the document was indeed executed by her. Learned counsel also drew the attention of this court to the fact that a few days prior to the execution of the Will late Udayakumari Amma had given evidence in a Magistrate Court in respect of maintenance proceedings and that is S.A.530/2000. 9 sufficient to show that she had the necessary mental capacity to execute a Will. According to learned counsel, the reasons given by the courts below to hold against the plaintiff are unjustified and cannot support either on facts or in law. 8. Per contra, learned counsel appearing for the respondent pointed out that both the courts below have elaborately considered the circumstances under which Ext.A18 will came into existence and were of the view that in all probability late Udayakumari Amma did not have a state of mind to understand the disposition alleged to have been made in Ext.A18 document. Learned counsel stressed that the ailment from which late Udayakumari Amma was suffering had a telling effect on her and had ruined her health. Learned counsel pointed out that the evidence would show that she was taken to the hospital on 26.3.1985 and that she was discharged on 3.4.1985 on request. The alleged Will, that is Ext.A18 is said to have been executed on 8.4.1985 and late Udayakumary Amma passed away on S.A.530/2000. 10 18.4.1985. A mere reading of Ext.A18 Will, according to learned counsel, will convince anybody that it could not have been at the volition of late Udayakumary Amma. Referring to Ext.A16 will it was contended that late Udayakumary Amma after executing Ext.A15 settlement in respect of 18 cents had bequeathed her entire assets to her only child, the plaintiff in this case. There is no reason given in Ext.A18 as to why the plaintiff should be disinherited especially when it is not shown that there is any dislike for the plaintiff. It is true that the plaintiff was staying with his father after late Udayakumary Amma had left for her house but there was nothing to show that there is any ill-feeling between the plaintiff and her mother. Learned counsel went on to point out that the lower courts have considered various suspicious circumstances surrounding the execution of the Will and it has been found by both the courts below that the Will is not executed as claimed in the written statement of the defendant. It was also highlighted that the propounder has not gone into the box and that is a S.A.530/2000. 11 significant omission which has a telling effect on the determination of the issue involved in the suit. It is evident that the propounder was shy to mount the box fearing severe consequences and that would be sufficient to show that the Will is not a valid one. Learned counsel concluded by saying that the findings of the courts below are based on appreciation of evidence on record and are findings of fact and therefore no interference is called for in Second Appeal under Section 100 of the Code of Civil Procedure. 9. The suit was instituted at a time when the plaintiff was a minor represented by his father, namely, Thulaseedharan pillai. The marriage between Tulaseedharan Pillai and late Udayakumari Amma, the birth of the plaintiff in this suit and the various purchases of immovable property utilizing the funds of late Udayakumari Amma are not in dispute. Of course there is a claim made by Thulaseedharan Pillai that he had also contributed funds for the purchase. Anyhow, that is not a matter that is to be gone into in this case. S.A.530/2000. 12 10. The evidence on record shows that late Udayakumary Amma fell sick in March, 1982. Eversince then she was undergoing treatment in various hospitals. The records indicate that late Udayakumari Amma returned to her paternal house in December, 1983. There is considerable dispute regarding the question as to whether she was brought to her paternal house by Thulaseedharan Pillai and left there or whether her parents had taken her. While Thulaseedharan Pillai, the father of the plaintiff, would say that the parents of late Udayakumari Amma had come home and on seeing the pitiful state of late Udayakumari Amma had taken her home to enable them to stay with her for a few days. The further claim of Thulaseedharan Pillai is that when he later went to meet his wife, he was prevented from doing so and thereafter the rift began. On the other hand the parents of late Udayakumari Amma would say that in December, 1983 Thulaseedharan Pillai brought Udayakumari Amma to her house and left her there and thereafter never cared for late Udayakumari Amma. S.A.530/2000. 13 11. Certain facts are admitted. Late Udayakumari Amma had executed Ext.A15 dated 21.1.1984, a settlement deed in favour of the plaintiff, her only child. Two days thereafter, she executed Ext.A16 will dated 23.2.1984 by which she bequeathed all her assets in favour of her child, the plaintiff. It is also not in dispute that Exts.A15 and A16 were executed after O.S. 159 of 1984 was instituted by late Udayakumari Amma against Thulaseedharan Pillai seeking to have Ext.20 sale deed dated 16.12.1981 set aside on the ground that it was not executed by late Udayakumari Amma and it was a concocted document. 12. The evidence on record would show that late Udayakumari Amma was treated for serious illness in various hospitals. The plaintiff has produced several documents to show that the affairs of late Udayakumari Amma were being looked after by her husband and father of the plaintiff, namely, Thulaseedharan Pillai. It is claimed that Thulaseedharan Pillai met the expenses for the treatment of late Udayakumari Amma, while the defendant S.A.530/2000. 14 would say otherwise. However, the plaintiff has been able to produce several documents which would show that it was Thulaseedharan Pillai, who was looking after Udayakumari Amma though she was in her house. Even though the defendant claimed that the treatment expenses were met by them, no evidence whatsoever has been produced by her to substantiate their case. 13. The challenge in the present suit is against Ext.A18 will. It is claimed that the will came into existence as a result of coercion and undue influence and it was not in fact executed by late Udayakumari Amma with a sound disposing state of mind. 14. The law regarding making of Wills and its proof are well settled. Section 63 of the Indian Succession Act deals with the drawing up of a Will and Section 68 of the Indian Evidence Act deals with the proof of a Will. Except in the case of an admitted Will, it is necessary to examine atleast one of the attesting witnesses to prove the due execution and attestation of the Will. Law in this regard is S.A.530/2000. 15 well settled and it needs no illustration. One may refer to the decision reported in H. Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443), K. Laxmanan v. Thekkayil Padmini (AIR 2009 SC 951) and S.R. Srinivasa v. S. Padmavathamma ((2010) 5 SCC 274). 15. It is well settled that proceedings in relation to a Will has an element of solemnity attached to it since the testator, who executed the document, is not available to speak about the same. The burden is on the propounder of the Will to prove the due execution and attestation of the Will. Apart from the said aspect, if it is shown that there are suspicious circumstances surrounding the Will, then there is an added burden on the propounder to remove all suspicious circumstances and satisfy the conscience of the court that the Will was duly executed by the testator. In the case on hand, both the courts below have found that the propounder has failed to discharge the burden cast on her. 16. The main contention taken is that even assuming that late Udayakumari Amma was physically weak S.A.530/2000. 16 at the relevant time, that does not lead to the conclusion that she was mentally incapacitated. It is true that physical incapacity and mental incapacity are two distinct features. Even though a person may be physically incapacitated, it is not necessary that he should be mentally debilitated. He may be mentally fit so as to understand the things that happen around him. He may also be conscious about the deeds done by him and aware of its consequences. 17. One may now refer to the evidence in the case. Before going further, one aspect may be noticed. The plaintiff was a minor at the time of institution of the suit and became a major and had chosen to proceed with the suit. 18. At the time of giving evidence, he was a minor and therefore his father, who instituted the suit on his behalf was examined as P.W.1. He speaks in terms of the plaint. P.W.2 is an officer attached to the District Hospital, Kollam. She gave evidence to the effect that late Udayakumari Amma was admitted in the hospital on 26.3.1985 and S.A.530/2000. 17 discharged on 3.4.1985. The witness has not given any reason for not producing the case records. 19. P.W.3 is the person who prepared Ext.A18(a). He would say that it was prepared in his office and at the relevant time one Balachandran Pillai and the brother of Udayakumari Amma were present and they narrated the recitals to be included in the document. He is specific in his evidence that the words “ഞന പറഞ ക ടത എഴതയതണ ” in Ext.A18(a) referring to 'as narrated by me' is not correct. He would say that the recitals in Ext.A18 were included after perusing the records and also the plaint in O.S.159 of 1984. 20. P.W.4 is the scribe of Ext.A18. She would say that she had written the document as dictated to her by P.W.3. 21. P.W.5 is the Sub Registrar, who had registered Ext.P18(a). His evidence is of considerable relevance. He would say that the document was registered from the house of late Udayakumari Amma. He would say that the S.A.530/2000. 18 testator signed on the reverse of the first page in his presence. He is unable to say as to whether the other signatures in the document were that of the testator. According to him, he had recorded the statement of late Udayakumari Amma. But he had not produced the same before court. He deposed that going by Ext.A18(a) it could not be seen that late Udayakumari Amma had consented to the document. He is unable to state about the state of mind of Udayakumari Amma at the relevant time. But he says that when he reached the house for registration, she was seen sitting on a chair. He is definite that she was not in such a condition that she could come over to the Sub Registrar office. The evidence of P.W.6 is of no relevance at all. 22. On behalf of the defendants, her son was examined as D.W.1. He is one of the attesting witnesses to Ext.A18 will. He says about the various statements made in the written statement. He would assert that the expenses for the treatment of late Udayakumari Amma were met by S.A.530/2000. 19 her parents and brothers and not by Thulaseedharan Pillai as claimed by him. He would assert that the signatures found in Ext.A18 Will is that of late Udayakumari Amma and she had executed it fully conscious of the disposition made by her. He would say that the details to be included in Ext.A18 Will were narrated by late Udayakmari Amma herself and at that time P.Ws. 3 and 4 were present. He was also present. So also Kochukuttan Pillai and Maheswaran Pillai. He would further say that late Udayakumari Amma affixed her signatures in the document in the presence of these persons. He then says that he signed as an attesting witness. He would go on to say that the attesting witnesses had seen the testator sign the documents and vice versa. 23. In cross-examination, he would assert that late Udayakumari Amma was perfectly healthy at the relevant time and was not suffering from any illness. However, it can be seen that he was totally ignorant regarding the details of the treatment undertaken by late Udayakumari Amma. Even though he says that the entries S.A.530/2000. 20 in Ext.A5 may not be correct, he conceded that he was not personally aware of the facts. He was questioned regarding the various treatments undertaken by late Udayakumari Amma in various hospitals and he pleaded ignorance regarding the same. He has also stated that the draft of the Will was drawn up in the house of late Udayakumari Amma. The recitals were narrated by Udayakumari Amma and P.W.4 had taken it down. He would assert that the recitals in the Will are identical statements narrated by late Udayakumari Amma and he is not sure whether late Udayakumari Amma referred to any document at the time of narrating the recitals to be included in the deed. He would say that he had not gone to the office of P.W.3. It is significant to notice that he was asked as to why the Sub Registrar was asked to come to the house for registration, his reply was that late Udayakumari Amma usually did not go out of the house. He would assert that at the relevant time late Udayakumari Amma was not suffering from any ailment and she was quite healthy. S.A.530/2000. 21 24. Both the courts below found that many of the statements made by D.W.1 are incorrect. The courts below found that it was Thulaseedharan Pillai, who had expended amounts for treatment of late Udayakumari Amma and Udayakumari Amma was not physically so fit as claimed by D.W.1 at the time of execution of Ext.A18 will. Both the courts found that she had been admitted in the hospital on 26.3.1985 and she was discharged on request on 3.4.1985 an Udayakumari Amma passed away on 18.4.1985. 25. It is true that merely because late Udayakumari Amma might have been physically very weak at the time when Ext.A18 was drawn up by itself does not necessarily lead to the conclusion that she was mentally incapacitated also. But the courts below have taken note of the fact that the nature of illness was such that she could not have been in possession of her faculties at the relevant time. The courts below have also noticed the dissimilarities in the signature in Ext.A18 at various pages. S.A.530/2000. 22 26. It is significant to notice that in the cross examination of P.Ws.3 and 4 it was not suggested to them that they were not speaking the truth and speaking falsehood in order to help the plaintiff. It was also not suggested to them that the draft of the Will was drawn up in the house of late Udayakumari Amma and she had narrated the recitals to be included in the Will to them from her house. P.W.3 had categorically stated that he had not gone to the house of late Udayakumari Amma and that the Will was drawn up in his office.