IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 14TH JUNE 2010 / 24TH JYAISTHA 1932 RSA.No. 214 of 2006(A) --------------------------------- AS.6/2005 AND CROSS APPEAL of V ADDL. DISTRICT COURT, ERNAKULAM OS.217/1992 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANT/APPELLANT/FIFTH DEFENDANT ------------------------------------------------------------------ A.V. POULOSE, S/O.VARKEY, ANNAMATTATHIL HOUSE, KARIMUGAL, P.O.PUTHENCRUZ, KUNNATHUNADU TALUK. BY ADV. SRI.G.RAJAGOPAL, SRI.THOMAS M.JACOB, SRI.T.K.VENUGOPALAN. RESPONDENTS/RESPONDENTS 1, 4, 5, 7 TO 13/PLAINTIFF, 3RD & 4TH DEFENDANTS, LR'S OF 1ST, 2ND AND 6TH DEFENDANTS: ----------------------------------------------------------------------------------------------------- 1. M.R. INDIRA, AGED ABOUT 48 YEARS, W/O.G.SUKUMARAN NAIR, PALLATHU PUTHEN VEETTIL, VELOREKARA DESOM, CHEMMANADU VILLAGE. 2. RADHAKRISHNAN NAIR, AGED ABOUT 46 YEARS, S/O.NARAYANAN NAIR, PALLATHU VEETTIL, VELOREKARA DESOM, CHEMMANADU VILLAGE. 3. SAMEERAN, AGED ABOUT 63 YEARS, S/O.SANKUNNY, HOUSE NO.513/10, FACT COCHIN DIVISION TOWN SHIP, UDYOGAMANDAL. 4. RADHA, AGED ABOUT 57 YEARS, W/O.APPUKUTTAN NAIR, PALLATH HOUSE, PINARMUNDA KARA, PERINADU VILLAGE. 5. SANTHOSH KUMAR, AGED ABOUT 31 YEARS, S/O.APPUKUTTAN NAIR, PALLATH HOUSE, PINARMUNDA KARA, PERINADU VILLAGE. RSA.No. 214 of 2006(A) 6. RAJESH KUMAR, AGED ABOUT 29 YEARS, S/O.APPUKUTTAN NAIR, PALLATH HOUSE, PINARMUNDA KARA, PERINADU VILLAGE. 7. RAJESWARI, AGED ABOUT 35 YEARS, D/O.APPUKUTTAN NAIR, PALLATH HOUSE, PINARMUNDA KARA, PERINADU VILLAGE. 8. SIVAN, AGED ABOUT 40 YEARS, S/O.LATE KUNJAPPAN, RESIDING AT THOMPRAKAROTTU HOUSE, PALLATHU VEETTIL, VELORE KARA, PUTHENCRUZ VILLAGE. 9. SUSEELA, AGED ABOUT 37 YEARS, D/O.LATE KUNJAPPAN, RESIDING AT THOMPRAKAROTTU HOUSE, PALLATHU VEETTIL, VELORE KARA, PUTHENCRUZ VILLAGE. 10. VIKRAMAN, AGED ABOUT 26 YEARS, S/O.LATE KUNJAPPAN, RESIDING AT THOMPRAKAROTTU HOUSE, PALLATHU VEETTIL, VELORE KARA, PUTHENCRUZ VILLAGE. R1 BY ADV. SRI.RAJESH VIJAYAN. R2 BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2010, THE COURT ON 14/06/2010 DELIVERED THE FOLLOWING: RSA.No. 214 of 2006(A) ORDER ON I.A. NO.593/2006 IN R.S.A. NO.214/2006 DISMISSED 14/06/2010. SD/- P.BHAVADASAN, JUDGE //TRUE COPY// P.S. TO JUDGE rs. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 214 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of June, 2010. JUDGMENT The fifth defendant in O.S. 217 of 1992 before the Munsiff's Court, Perumabvoor, who suffered a decree at the hands of the trial court and whose appeal was dismissed by the appellate court is the appellant before this court. The parties and facts are herein after referred to as they are arrayed before the trial court. 2. The plaintiff as well as the third defendant are the children of Kochukutty Amma Lakshmy Amma and the second defendant is her second husband. The first defendant is the son in the first marriage of Lakshmy Amma. The suit was one for recovery of possession after setting aside a partition deed evidenced by Ext.A1 dated 21.7.1981. R.S.A.214/2006. 2 3. The suit property, which has an extent of 42 cents belonged to Lakshmy Amma. She obtained it as per Ext.A2 partition deed dated 22.10.1965. The plaint allegation is that Lakshmy Amma executed a Will with regard to the plaint schedule property in favour of the plaintiff as well as the third defendant. At the time of execution of the will the plaintiff was a minor. She had to move along with her husband and she was unaware of the Will. Defendants 1 to 3 were fully aware of the same and they concealed the existence of the Will from her. Later she came to know about the Will and then she realised that she had been defrauded. If as a matter of fact, the plaintiff was aware of the Will she would not have entered into the partition deed evidenced by Ext.A1. Ext.A1 is the result of fraud and deception. As per the Will, which is produced as Ext.A4 dated 8.4.1969, the plaintiff is entitled to half share of the plaint schedule property. The fourth and fifth defendants, who are assignees from some of the sharers under Ext.A1 have no right in the property. On the basis of R.S.A.214/2006. 3 these allegations the suit was laid for setting aside the sale deeds as well as for recovery of possession. 4. The defendants resisted the suit. As far as the present appeal is concerned, the contentions raised by the fifth defendant alone are relevant. In fact the fourth and fifth defendants filed a joint written statement. They specifically disputed the Will. They pointed out that the alleged Will, that is Ext.A4, is not legally valid. It is contended by them that the plaintiff as well as the third defendant are born to Lakshmy Amma and the second defendant and they have no right over the property. There was a family dispute and in order to settle the same Ext.A1 deed was entered into in 1981 and the fourth defendant had purchased the property from one of the sharers, namely the first defendant as per Ext.B6 sale deed dated 23.11.1982. The fourth defendant subsequently sold the property to the fifth defendant as per Ext.B7 sale deed dated 23.10.1991. Both these defendants contended that they were bonafide purchasers for valuable consideration and any fraud played R.S.A.214/2006. 4 by the sharers on the plaintiff cannot be extended to them. It is also contended by them that since there is no prayer to set aside the sale deed in their favour, the plaintiff is not entitled to any relief. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 and 2 and the documents marked as Exts.A1 to A4 from the side of the plaintiff. The defendants had D.Ws.1 and 2 examined and Exts.B1 to B9 marked. On an appreciation of the evidence in the case, the trial court passed the following decree: “(1) The plaintiff is entitled to a decree of declaration for setting aside the document No.2605/1981 and that document is set aside. (2) The plaintiff is not entitled to get recovery of possession as prayed in the plaint. (3) No order as to costs.” R.S.A.214/2006. 5 6. The fifth defendant carried the matter in appeal as A.S.6 of 2005 before the District Court, Ernakulam and the plaintiff filed a cross appeal. The appellate court dismissed the appeal, but allowed the cross appeal and granted a decree in favour of the plaintiff for recovery of plaint C schedule property from the fifth defendant and also for recovery of possession of D schedule property from the legal heirs of the sixth defendant with mesne profits also. The fifth defendant assails the judgment and decree against him in this Second Appeal. 7. The following substantial questions of law are seen raised in this Second Appeal: “I) Whether the rights of a bonafide purchaser for valuable consideration are protected when the plaintiff is enforcing her claim against such a purchaser after the period of limitation. II) Whether the plaintiff who is claiming aid of Section 17(1)(d) of the Limitation Act specifically pleaded and proved that the subsequent purchaser for valuable consideration R.S.A.214/2006. 6 is a party to the concealment and that the said purchaser know or have reason to believe that the document has been concealed? III) Whether a bonafide purchaser for valuable consideration from a fraudulent transferee entitled to claim benefit of the proviso to Section 17(1) of the Limitation Act? IV) Whether the plaintiff, who alleges fraud entitled to any reliefs unless and until all the material particulars regarding the alleged fraud are specifically pleaded and proved? V) Whether in a suit claiming right on the basis of a Will, should not the plaintiff specifically plead and prove that the Will based on which right is claimed is the last Will of the executant?” 8. Learned counsel appearing for the appellant pointed out that the courts below were not justified in granting a decree against the fifth defendant. It is very evident from the records as well as the evidence that the fifth defendant is a bonafide purchaser for valuable consideration and therefore he falls within the first proviso to Section 17(1)(d) of the Limitation Act. Learned counsel R.S.A.214/2006. 7 drew the attention of this court to the fact that the plaintiff has not chosen to have Exts. B6 and B7 set aside and without doing so, she cannot seek a decree against the fifth defendant. It is also contended that the courts below were grossly erred in law in observing that since the execution of the Will is admitted, strict proof of the same may not be required. This is against Section 68 of the Indian Evidence Act. Attention was drawn to the fact that none of the attesting witnesses were examined to prove the due execution of the Will and no reason was also given for the non-examination. On these grounds, it is pointed out that the judgments and decrees of the courts below are not sustainable in law. 9. Per contra, learned counsel appearing for the contesting respondents pointed out that the courts below were fully justified in setting aside the partition deed and accepting the Will propounded by the plaintiff. It is not right to say that the Will was disputed. On a reading of the written statement of the defendants, it could not be seen R.S.A.214/2006. 8 that the execution of the Will was admitted and also that the plaintiff was not aware of the same. The stand taken by the plaintiff was that the defendants were fully aware of the existence of the Will and they made the plaintiff enter into a partition deed, and that is evidenced by Ext.A1. According to the learned counsel, it is not necessary for the plaintiff to seek setting aside of Exts. B6 and B7 since defendants 4 and 5 were aware of the fraud and the document executed in their favour is a result of the fraudulent conduct. Accordingly it is contended that there are no grounds to interfere with the judgments and decrees of the courts below. 10. It is not in dispute that the plaintiff had entered into a partition deed Ext.A1 dated 21.7.1981. The properties were divided into four shares, namely, A, B, C and D. A schedule, which has an extent of 15 cents was given to the plaintiff. B schedule, which has an extent of 8 cents was given to the third defendant and C schedule having 11 cents was given to the first defendant. D schedule, having R.S.A.214/2006. 9 an extent of 8 cents, was given to the second defendant. It is also not disputed that the plaintiff had put up a building in the property allotted to her and she is residing there. The records show that the first defendant assigned the property given to him under Ext.A1 to the fourth defendant as per Ext.B6 dated 23.11.1982. The fourth defendant in turn sold the property to the fifth defendant as per Ext. B7 dated 23.10.1991. 11. A reading of the judgments of the courts below show that the courts below proceeded on the assumption that the execution of Ext.A4 Will is not disputed. The contention of the fifth defendant was that the plaintiff was well aware of the Will and with eyes open she had entered into Ext.A1 partition deed and also that the Will was not legally valid. Therefore, she was estopped from contending otherwise. As far as the other defendants were concerned, the courts below were of the opinion that they R.S.A.214/2006. 10 had admitted execution of the Will, but their contention was that in order to settle the dispute in the family, Ext.A1 was entered into. 12. The observation of the courts below that defendants 4 and 5 in their joint written statement have not disputed the Will does not appear to be correct. It is true that they have mentioned that the plaintiff was fully aware of the existence of the Will and it was thereafter she had entered into Ext.A1 partition deed. But that is far from saying that execution of Ext.A4 Will is admitted. Several contentions have been raised by defendants 4 and 5. What is relevant is that they have specifically contended that they are bonafide purchasers for valuable consideration and therefore proviso (i) to Section 17(1)(d) of the Limitation Act applies. They have also pointed out that the Will relied on by the plaintiff is not a validly executed Will and that the plaintiff is not entitled to any relief as per the Will. This specific contention seems to have been overlooked by the courts below. R.S.A.214/2006. 11 13. Two questions arise for consideration. One, in the light of the above dispute, is it not necessary for the propounder of the Will to prove the due execution of the Will. The other question is even if execution of the Will is admitted, still is it not necessary for the plaintiff to prove the Will as per Section 68 of the Indian Evidence Act. 14. The law regarding Will is well settled. Section 63 of the Indian Succession Act provides for the manner in which the Will is to be drawn up. It mentions that the Will should be in writing and should be signed by the testator and also attested by two attesting witnesses. The provision stipulates that the testator should see that the attesting witnesses sign the document and vice versa. But however, it is not necessary that the attesting witnesses should see each other signing the Will. The next relevant provision is Section 68 of the Indian Evidence Act, which reads as follows: R.S.A.214/2006. 12 “68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until 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: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.” 15. A reading of the above provision clearly shows that in the case of a Will, unlike in the case of a gift deed, which if admitted need not be proved, the Will will have to be proved by examining atleast one of the attesting witnesses. There is no distinction drawn by the provision between an admitted Will and a disputed Will. In fact a reading of the provision will clearly show that in all cases in R.S.A.214/2006. 13 which the Will is set up the procedure prescribed in Section 68 will have to be followed. It is useful to refer to the decisions on the point. 16. There is no ambiguity regarding the onus of proof regarding the execution of a Will. The burden is on the propounder of the Will to prove that the Will was duly executed. He has to show that at the relevant time the testator had a sound disposing state of mind and also that it was attested by two attesting witnesses. The proof of Will is like proving any other document, except for the special mode of proof provided under Section 68 of the Indian Evidence Act. The propounder has a legal obligation apart from proving the execution and genuineness of the Will, to explain to the satisfaction of the court any suspicious circumstance surrounding the execution of the Will. The propounder has a duty to prove the Will to the satisfaction of the court. R.S.A.214/2006. 14 17. It is an accepted principle that since the Will speaks from the death of the testator, the proceedings is a solemn one. Quite often the interpretation of the Will poses considerable difficulties. But the general principle is that as far as possible the intention of the testator should be given effect to. 18. As already noticed, Section 68 of the Indian Evidence Act does not contain any distinction between an admitted Will and a disputed Will as regards the mode of proof. In the decision reported in Kathrikutty v. V.J. Pappoo (2005(2) KLJ 303) it was held as follows: “Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act provide that the will shall be attested atleast by two witnesses and that while proving the will atleast one among shall have to be examined. In a probate proceedings it is the duty of the propounder to show that the “will was signed by the testator; that he was at the relevant time in sound disposing state of mind; that he understood the nature and effect of disposition and had put R.S.A.214/2006. 15 his signature to the testament of his own free will and that he had signed it in the presence of the two witnesses who attested in his presence and in the presence of each other” (See Sreedevi & Ors. v. Jayaraj Shetty and Ors. (AIR 2005 SC 780). Whether the first respondent had satisfied this burden or not is the point to be considered first.” In the decision reported in Daulat Ram v. Sodha ((2005) 1 SCC 40) it was held as follows: “Will being a document has to be proved by primary evidence except where the court permits a document to be proved by leading secondary evidence. since it is required to be attested, as provided in Section 68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the attesting witnesses 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. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925. In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed R.S.A.214/2006. 16 by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the Will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so.” In K.Laxmanan v. Thekkayil Padmini (AIR 2009 SC 951) it was held as follows: “Onus of proving the Will is on the propounder. The propounder has to prove the legality of the execution and genuineness of the Will by proving absence of suspicious circumstances surrounding the said Will and also by proving the testamentary capacity and the signature of the testator. When there are suspicious circumstances regarding the execution R.S.A.214/2006. 17 of the Will, the onus is also on the propounder to explain them to the satisfaction of the Court and only when such responsibility is discharged, the Court would accept the Will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the Court.” 19. In Mathew Oommen v. Suseela Mathew (AIR 2006 SC 786) it was held that a scribe could act as an attesting witness, provided he signs the Will in that capacity. 20. It is well settled that even if a Will is registered, that does not dispense with the necessity to prove the Will as contemplated under Section 68 of the Indian Evidence Act. Once the execution of the Will is proved, the factum of registration gives more credence to the Will. But registration by itself is not sufficient to prove the execution of the Will. In the case on hand, the Will is a registered one. The evidence of the propounder may be first looked into. According to her in 1991 she came to know R.S.A.214/2006. 18 about the existence of the Will. It is interesting to note the occasion for her to come to know about the Will. She says that when there was a dispute between the first defendant and the fifth defendant with her in respect of a way, then she went to the Registrar's office and from there she found that there was a Will. 21. One fails to understand by going to Registrar's office how could she come to know about the Will. At one place she says that when she took encumbrance certificate of the property she came to know of the Will. That cannot be correct because the encumbrance certificate will not mention about the Will at all. Nowhere in her evidence she says that the testator had a sound disposing state of mind at the time of execution of the will. Surprisingly enough she does not also say that the Will contains the signature of her mother. In cross-examination she keeps on saying that she does not say anything and does not reply to most of the questions. Except the fact that she was given half share under the Will, she is ignorant about the other recitals in the R.S.A.214/2006. 19 Will. She admitted in cross-examination that she has sold a portion of the property set apart to her as per Ext.A1 to the fourth defendant. Then she says that there was a dispute between her and the fourth defendant regarding a pathway. She also says that the fifth defendant had closed a way, which was already in existence. She had also admitted that the sale deed in favour of the fourth defendant by the third defendant is supported by consideration but says it is not adequate. However, she says that defendants 4 and 5 were aware of the fraud. 22. The plaintiff has examined P.W.2, the scribe of the Will to prove the Will. He says about the execution of the Will. He says that it was written by him and the testator had signed in his presence. It is interesting to note that he is the regular scribe of the family. He was also the scribe of Ext.A1 document. One fails to understand, then why he did not disclose about the Will to the plaintiff. He R.S.A.214/2006. 20 does say that the Will was signed by the attesting witnesses. One fact needs to be noticed and that is, he is not an attesting witness to the Will. 23. The question that arises is whether the evidence of P.W.2 is sufficient to prove the Will. Obviously it is not. As noticed, he is not an attesting witness to the Will. There is nothing on record to show that the attesting witnesses are not available for examination. One fails to understand why none of the attesting witnesses were examined. The observation of the court below that the defendants had admitted the Will cannot be countenanced in the light of the specific contention taken by defendants 4 and 5 in the written statement, which has already been referred to. Proof of will is not dispensed with merely because execution of the will is admitted. The result is that Ext.A4 Will is not proved in accordance with law. 24. This finding would be sufficient to dispose of this appeal. But since several contentions are also taken, they are also be adverted to. R.S.A.214/2006. 21 25. The case of the plaintiff is that defendants 1, 2 and 3 have played fraud on her by concealing the existence