IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 RSA.No. 1070 of 2004() ---------------------- AS.157/1997 of ADDL. DISTRICT COURT, THALASSERY OS.190/1994 of PRL.SUB COURT.,THALASSERY .................... APPELLANTS/APPELLANTS 2 TO 13 IN AS ------------------------------------------------------- 1. PUNATHUMMAL KALLADAN JANAKI, W/O. SANKARAN, AGED 54 YEARS, NOW RESIDING AT PUNATHUMMAL HOUSE, PERINGATHUR AMSOM, KARIYAD DESOM, POST KARIYAD, VIA.PERINGADI, THALASSERY TALUK. 2. PUNATHUMMAL KALLADAN KARTHIAYANI, W/O. KANNAN, 47 YEARS, MAKKACHERINTAVIDA HOUSE, NADAKKUTHAZHA POST PUTHUR VIA.VADAKARA, VADAKARA TALUK. 3. PUNATHUMMAL KALLADAN SAROJINI, W/O. RAMAN, 43 YEARS, KANATHAYINTAVIDA HOUSE, PUTHUR AMSOM, POST NUT STREET, VADAKARA, VADAKARA TALUK. 4. PUNATHUMMAL KALLADAN VASANTHA, W/O. BABU, 43 YEARS, CHERUVATHKANDIYIL KUTIYIL HOUSE, URALUNGAL AMSOM, MADAPPALLI DESOM, POST MADAPPALLI COLLEGE, VADAKARA TALUK. 5. PUNATHUMMAL KALLADAN BALAKRISHNAN, S/O. CHACHU, 38 YEARS, NOW RESIDING AT MOTTANTAVIDA - 'UNNIKKANNAN NILAYAM', POST KARIYAD SOUTH VIA. PERINGADI, THALASSERY TALUK. 6. PUNATHUMMAL KALLADAN DASAN S/O. CHATHU, 36 YEARS, RESIDING AT PUNATHUMMAL KARIYAD STREET, POST KARIYAD SOUTH, VIA.PERINGADI, THALASSERY TALUK. 7. NARAYANI P.K. W/O. KRISHNAN, 65 YEARS, PUNATHUMMAL HOUSE, KARIYAD STREET, PERINGATHUR AMSOM, KARIYAD DESOM, POST KARIYAD, VIA.PERINGADI, THALASSERY TALUK. 8. PUNATHUMMAL LAKSHMI W/O. SREEDHARAN 46 YEARS, PARAMAL HOUSE, KARIYAD STREET, PERINGATHUR AMSOM, KARIYAD SOUTH, VIA.PERINGADI, rsa 1070/04 THALASSERY TALUK. 9. DO. KAMALAKSHI W/O. VENU, 42 YEARS, PAREMMAL HOUSE, KARIYAD STREET, DO. DO. DO. 10. DO. RADHAKRISHNAN S/O. KRISHNAN, 40 YEARS, PUNATHUMMAL HOUSE, KARIYAD STREET, PERINGATHUR AMSOM KARIYAD DESOM, POST KARIYAD SOUTH VIA. PERINGADI, THALASSERY TALUK. 11. PUNATHUMMAL PRABHAKARAN S/O. KRISHNAN, 36 YEARS, PUNATHUMMAL HOUSE, KARIYAD STREET, DO. DO. DO. 12. PUNATHUMMAL SULOCHANA W/O. KUNHIKANNAN, 38 YEARS, PUNATHUMMAL HOUSE, KARIYAD STREET, DO. DO. DO. BY ADV. SRI.B.KRISHNAN SRI.R.K.MURALEEDHARAN SRI.R.PARTHASARATHY SMT.S.LAKSHMY RESPONDENT(S): RESPONDENTS IN AS.157/97/PLAINTIFF & DENTS.9 & 10. ----------------------------------------------------------------- 1. PARAMMAL KALLADAN MADHAVI D/O. KALLADAN KANNAN CHETTIAR, AGED 84 YEARS, NO OCCUPATION, KARIYAD AMSOM, DESOM POST KARIYAD SOUTH, THALASSERY TALUK. 2. PUNATHUMMAL CHULLIYAN NARAYANAN, S/O. RAMAR, 64 YEARS, KARIYAD AMSOM, DESOM, KARIYAD THERU, POST KARIYAD SOUTH, THALASSERY TALUK. 3. ERATTA NARAYANI W/O. NARAYANAN, PUNATHUMMAL HOUSE, KARIYAD AMSOM, DESOM, POST KARIYAD SOUTH, THALASSERY TALUK. * 4. P.NARAYANAN MASTER, S/O. KANNAN, AGED 65 YEARS, AJITHALAYAM, POST MADAPPALLY COLLEGE, VIA VATAKARA, KOZHIKODE DIST.673102. * 5. PYTHAL.P S/O KANNAN, AGED 63 YEARS PAREMMAL, KARIYADTHERU, POST KARIYAD, VIA PERINGADI KANNUR DISTRICT-673316. * 6. P.RAMAKRISHNAN, S/O. KANNAN AGED 60 YEARS, AMBADI HOUSE, rsa 1070/04 THARUVANATHERU, POST KATHIRUR KANNUR DIST- 670642. * 7. PULIYULLATHIL LEELA, W/O. KANANARAN AGED 58 YEARS, CHINGAN HOUSE THARUVANATHERU, POST KATHIRUR KANNUR DISTRICT -670 642. * 8. LALITHA, W/O. SREEDHARAN AGED 55 YEARS, CHINGAN HOUSE THARUVANATHERU, POST KATHIRUR KANNUR DISTRICT 670642. * 9. LAKSHMI, W/O. BHASKARAN, AGED 50 YEARS RESIDING AT PALAYUDANTAVIDE, POST MADAPPALLY COLLEGE, VIA VADAKARA, KOZHIKODE DIST 673102. * ADDL.RESPONDENTS 4 TO 9 IMPLEADED AS PER ORDER DATED 12.10.2010 IN I.A.219 OF 2008. ADV. SRI.GRASHIOUS KURIAKOSE FOR R1 & ADDL.R4 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/07/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.1070 OF 2004 ............................................ DATED THIS THE 13th DAY OF JULY, 2011 JUDGMENT Defendants 3 to 8 and legal heirs of the first defendant in O.S.190 of 1994 on the file of Sub Court, Thalassery are the appellants. First respondent is the plaintiff and respondents 2 and 3 are defendants 9 and 10. On the death of the first appellant, additional respondents 4 to 9 were impleaded as his legal heirs. Appellants are challenging the preliminary decree passed by the learned Sub Judge as confirmed by learned Additional District Judge in A.S.No.157 of 1997. By the preliminary decree, it was found that plaint schedule property, which originally belonged to deceased Kalladan Kannan Chettiar is available for partition and is to be divided into three equal shares and one such share is to be alloted to the first respondent and one share to the first defendant and the remaining share to defendants 2 to 8, the legal heirs of Chathu. Plaint schedule property admittedly originally belonged to Kannan Chettiar. Chiruthai is his wife. Plaintiff, first defendant and deceased Chathu are their children. RSA 1070/2004 2 Kannan Chettiar admittedly died on 27.7.1975. Chiruthai died on 10.12.1984. Chathu died on 29.11.1972. Defendants 2 to 8 are the legal heirs of Chathu. First defendant died during the pendency of the appeal and appellants 9 to 12 were impleaded as his legal heirs. First respondent instituted the suit for partition contending that on the death of Kannan Chettiar, his rights devolved on his widow and children and legal heirs of deceased son Chathu and on the death of the widow Chiruthai, her rights devolved on the children the plaintiff, first defendant and also on the legal heirs of Chathu and she is entitled to 1/3 share. 2. Defendants 1 to 8 together filed a written statement contending that deceased Kannan Chettiar had executed Ext.X1 registered will bequeathing the plaint schedule property to his sons, first defendant and Chathu and item No.1 shown therein was given to Chathu and item No.2 to the first defendant. The will was executed by Kannan Chettiar out of his free will and volition. He was aged only 65 years and was mentally and physically healthy at the time of execution of the will. The will also provides that in the event of death of any of the legatees, RSA 1070/2004 3 his legal heirs would inherit the property. Though Chathu predeceased the father, under Ext.X1 will, on the death of Kannan Chettiar on 27.7.1975, only defendants 1 to 8 are entitled to the property and plaintiff is not entitled to claim any share. It was also contended that at the time of execution of the will, Kannan Chettiar had discussed about the will with plaintiff, his eldest daughter and therefore she was aware of the will in 1962 itself. Later, first defendant assigned ten cents of item No.2 of the property covered under the will, in favour of P.C.Narayanan, who was later impleaded as 9th defendant and the plaint schedule property is not available for partition. The 9th defendant filed a written statement reiterating the contentions raised by the defendants contending that it was his wife Narayani, who was later impleaded as defendant No.10 who is in possession and enjoyment of ten cents of the property as per registered assignment deed dated 31.7.1976. Defendant No.10 filed a written statement contending that she purchased ten cents from the first defendant and is in possession of the property and has effected valuable improvements and she is a bonafide RSA 1070/2004 4 purchaser for value and in the event of partition, the ten cents is to be alloted to the share of the first defendant, her assignor. 3. Learned Sub Judge, on the evidence of PW1, Dws 1 to 3, Exts.A1 to A6 and B1 to B32 passed a preliminary decree holding that execution of Ext.X1 will was not proved and on the death of Kannan Chettiar, his rights devolved equally on his children, plaintiff, first defendant, legal heirs of Chathu and they are entitled to one share each. First defendant along with defendants 3 to 8 filed A.S.157 of 1997 before Additional District Court, Thalassery challenging the preliminary decree. Learned Additional District Judge, on re-appreciation of the evidence, confirmed the preliminary decree and dismissed the appeal. It is challenged in the second appeal. 4. Second appeal was admitted formulating the following substantial questions of law. “1)Did the courts below on the evidence available err in law in coming to the conclusion that due execution and attestation of the will has not been proved? RSA 1070/2004 5 2) Did the courts below err in not taking into account the stipulations of S.90 of the Evidence Act while considering whether the will is duly proved ?” 5. Learned counsel appearing for appellant and contesting respondents were heard. 6. Learned counsel appearing for appellant pointed out that the evidence of the plaintiff as PW1 establish that she was aware of execution of the will by her father immediately after his death and the attesting witnesses to Ext.X1 will were not alive on the date of her examination and in such circumstances, the courts below should have considered whether Ext.X1 will was proved as provided under Section 69 of Indian Evidence Act. Learned counsel argued that when PW1 herself admitted that the attesting witnesses are not alive, there was no necessity to take out summons to the attesting witnesses or to produce their death certificates and therefore failure to take out summons to the attesting witnesses, or failure to produce the death certificates, are not justifiable reasons for holding that the will is to be proved RSA 1070/2004 6 as provided under Section 68 of Indian Evidence Act. It is pointed out that when the witnesses are not available for examination, the will cannot be proved as provided under Section 68 and can only be proved as provided under Section 69 of the Evidence Act. The learned counsel would argue that the evidence of DW1, the scribe, would establish that it was the testator Kannan Chettiar who gave instructions to prepare Ext.X1 will and pursuant to the instructions, DW1 prepared Ext.X1 will and in the presence of DW1, the testator and attesting witnesses affixed their signature and therefore evidence of DW1 satisfies the requirements as provided under Section 69 and hence courts below were not justified in holding that execution of Ext.X1 will is not proved and directing division of the plaint schedule property in accordance with the inheritance. The learned counsel fairly submitted that in view of the decision of the Apex Court in Bharpur Singh and others V. Shamsher Singh (2009(3) SCC 687), the second substantial question of law viz, the necessity to prove the execution of the will, in view of Section 90 of Indian Evidence Act is not pressed. RSA 1070/2004 7 7. Learned counsel appearing for the first respondent argued that the courts below entered a factual finding based on the evidence that execution of Ext.X1 will is not proved and on the evidence, that finding cannot be interfered. Learned counsel pointed out that the version given by PW1 on the availability of the attesting witnesses to Ext.X1 cannot be relied on as she was aged about 80 years at the time of her examination. It was pointed out that the answer given by PW1 during cross examination was extracted without disclosing the details of the attesting witnesses and only the two names were mentioned and those names need not be that of the attesting witnesses as several persons have the same name and hence the said evidence of PW1 is insufficient to prove that the two attesting witnesses were not available for examination to prove the will as provided under Section 68 of the Indian Evidence Act. Learned counsel would argue that even if the attesting witnesses are no more, as provided under Section 69 of Indian Evidence Act, there should be evidence to prove that at least the signature of one of the attesting witnesses seen in Ext.X1, is in the RSA 1070/2004 8 handwriting of that witness and also that the signature of the testator seen in Ext.X1 is that of Kannan Chettiar and there is no evidence to prove either of the facts. Learned counsel pointed out that though Ext.X2 a registered marupat executed by Kannan Chettiar was summoned and got produced, the signature of Kannan Chettiar seen therein differs from the signature seen in Ext.X1 and the defendants, the propounders of the will, did not take any steps to get the signature seen in Ext.X1 compared with the signature seen in Ext.X2 by an expert to prove that signature of the testator seen in Ext.X1 is that of Kannan Chettiar. It is argued that therefore the requirements provided under Section 69 are not satisfied. Learned counsel also pointed out that though DW1 the scribe was examined to prove execution of the will, he was not an attesting witness and though he deposed that the testator signed in his presence, DW1 did not identify the signatures of the testator and the attesting witnesses seen in Ext.X1, as the signatures of the testator and the witnesses and therefore the evidence of DW1, even if accepted, will not prove execution of Ext.X1 as provided under Section 69. Learned RSA 1070/2004 9 counsel also argued that the signature of Kannan Chettiar seen in Ext.X2 is shaky and Ext.X1 which was allegedly executed much later shows that the signature is steady and it materially differs and hence it is to be found that Ext.X1 will was not executed by the testator, Kannan Chettiar. Learned counsel relied on the decision of the Apex Court in Babu Singh V. Ram Sahai (AIR 2008 SC 2485) to support the argument that it is necessary to prove the death of the attesting witnesses to invoke Section 69 of the Indian Evidence Act and would argue that summons should have been taken to the attesting witnesses to prove that they are not available for examination. Relying on the decision of the Division Bench of this court in Sumangala T.Pai V. Sundaresa Pai (1991) KLT 246) it was argued that the identity of the signature is a relevant matter and the evidence of an expert is necessary to prove the signature in a case of this nature to prove that Ext.X1 will was executed by the testator. Relying on the decision of the Apex Court in H.Venkatachala Aiyer V. B.N.Thimmajamma and others (1959 AIR SC 443) and Bharpur Singh's case (supra), learned counsel argued that Ext.X1 RSA 1070/2004 10 does not disclose any reason for the the disinheritance of the widow and the widowed daughter, who was living with the testator, when admittedly they were looking after him, at the time of execution of the will, which will not be the case, if the will was executed in the ordinary course. Learned counsel would point out that in such circumstances, it is for the propounders of the will to remove the suspicion and they did not adduce sufficient evidence to remove the suspicion and even if Ext.X1 will is proved to be the will executed by deceased Kannan Chettiar, as the suspicious circumstances were not removed, court is justified in holding that on the death of Kannan Chettiar, his rights devolved on the plaintiff, the daughter, first defendant and Chathu, the sons. 8. Though substantial question of law No.2 was formulated, in view of the decision of the Apex Court, the question is settled. Their Lordships in Bharpur Singh's case (supra) held: “11. The legal principles in regard to proof of a will are no longer res integra. A will must be proved having regard to the provisions RSA 1070/2004 11 contained in clause © of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, in terms whereof the propounder of a will must prove its execution by examining one or more attesting witnesses. Where, however, the validity of the will is challenged on the ground of fraud, coercion or undue influence, the burden of proof would be on the caveator. In a case where the will is surrounded by suspicious circumstances, it would not be treated as the last testamentary disposition of the testator”. 9. Ext.X1 will is seen executed on 7.12.1962 and registered on 11.12.1962. Ext.X1 also shows that the will was attested by two witnesses, Kannan and Kanaran. Under Ext.X1 will, the properties were bequeathed in favour of the two sons alone. Nothing is mentioned in Ext.X1 why the wife and the daughter are disinherited. It is admitted case that on the date of death of Kannan Chettiar, plaintiff was a widow. But there is no evidence as to when exactly her husband died. The evidence of RSA 1070/2004 12 PW1 shows that after the death of her husband, she was taken to the family house by the father and she along with the mother were looking after her father. In such circumstances, it cannot be believed that the father would disinherit his widowed daughter and will not make any provision for the maintenance of his wife. In the plaint itself, plaintiff has pleaded that the contention of defendants in the reply notice that Kannan Chettiar had executed a will is not correct and the will is concocted. In such circumstances, it is clear that plaintiff has denied execution of Ext.X2 will and pleaded that it was not a genuine will executed by Kannan Chettiar. It is definitely on the propounder of the will to prove the execution of the will. The Honourable Supreme Court in Venkatachala Iyengar's case (supra) laid down the following proposition. “19. However, there is one important feature which distinguishes wills 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 RSA 1070/2004 13 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 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 on the propounder RSA 1070/2004 14 can be taken to be discharged on proof of the essential facts just indicated. 20. There may, however be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases, the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted RSA 1070/2004 15 as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter”. The position was further explained in Niranjan Umeshchandra Joshi V. Mridula Jyoti Rao and others (2007 AIR SCW 203), (2006 (14) SCALE 186) as follows. “33. The burden of proof that the will has been RSA 1070/2004 16 validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator (See Madhukar.D.Shende V. Tarabai Aba Shedege and Sridevi V. Jayaraja Shetty). Subject to above, proof of a will does not ordinarily differ from that of proving any other document”. 10. A will has to be proved like any other document except RSA 1070/2004 17 as to the special requirements of attestation as prescribed under Section 63 of Indian Succession Act. Section 67 of Indian Evidence Act provides that if a document is alleged to be signed by any person, the signature of that person must be proved to be in his handwriting. For proving the handwriting, opinion of the expert and of persons who are acquainted with the handwriting of the concerned person as provided under Section 47 and 45 of Indian Evidence Act are relevant. Section 68 deals with the proof of a document required by law to be attested including a will. Under Section 68 such a document shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution. Section 63 of Indian Succession Act mandates that testator, who under Section 59 must be a person of sound mind, shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and the signature or the mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. That shall be attested by two or more witnesses. Hence under Section 68 of Indian Evidence Act, the will could be RSA 1070/2004 18 proved only if at least one of the attesting witnesses is examined, if available. Section 69 of Indian Evidence Act is an exception to Section 68. Section 69 therefore absolves the propounders, the liability to examine at least one of the attesting witnesses. 11. The argument of the learned counsel appearing for appellant is that as the evidence of PW1 establishes that the attesting witnesses to Ext.X1 will are no more and hence the will can only be proved as provided under Section 69 of Indian Evidence Act. Though the learned counsel relying on the decision of the Apex Court in Babu Singh's case (supra) argued that as the defendants have not taken out summons to the attesting witnesses or did not produce their death certificates, there is no evidence to prove that the attesting witnesses were not available for examination. But on the facts and evidence I cannot agree. PW1 unambiguously deposed that both the attesting witnesses are no more. DW2 at the time of his examination, though not in chief examination, but in cross examination by the learned counsel appearing for the 10th defendant deposed that both the attesting witnesses are not alive. That version of DW2 was not RSA 1070/2004 19 challenged by the plaintiff in cross examination. Though he was asked whether he has produced the death certificates of the attesting witnesses, there was not even a suggestion that the witnesses were alive. In the light of this evidence, I do not find it