IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 19TH NOVEMBER 2010 / 28TH KARTHIKA 1932 RFA.No. 333 of 2005(B) -------------------------------- [O.S. NO.85/2002 OF THE PRL. SUB COURT, THALASSERY] .......... APPELLANTS/APPELLANTS(LOWER COURT)/1 & 2 DEFENDANTS (TRIAL COURT): ---------------------------------------------------------------------------------------------------------------------- 1. C.M.SOBHANA, D/O.LATE KRISHNAN NAMBIAR, AGED 53 YEARS, NO OCCUPATION, RESIDING AT MORAKKAL HOUSE, PALLIKUNNU AMSOM, CHALAD DESOM, P.O.CHALAD, KANNUR. 2. C.M.KRISHNA KUMAR, S/O.LATE KRISHNAN NAMBIAR, AGED 47 YEARS, LIC AGENT MORAKKAL HOUSE, PALLIKKUNNU AMSOM, CHALAD DESOM, KANNUR. BY ADV. SRI.M.VIJAYAKUMAR. RESPONDENTS/PLAINTIFFS & DEFENDANTS 3 TO 5(TRIAL COURT): -------------------------------------------------------------------------------------------------- 1. T.M.JANAKI AMMA, W/O.LATE KRISHNAN NAMBIAR, AGED 77 YEARS, NO OCCUPATION, RESIDING AT PALLIKKUNNU AMSOM, CHALAD DESOM, P.O.CHALAD IN KANNUR DISTRICT. 2. C.M.DAYANANDAN, S/O.LATE KRISHNAN NAMBIAR, AGED 59 YEARS, NO OCCUPATION, RESIDING AT PALLIKKUNNU AMSOM, CHALAD DESOM, P.O.CHALAD IN KANNUR DISTRICT. 3. C.M.HAREENDRAN, S/O. LATE KRISHNAN NAMBIAR, AGED 55 YEARS, BUSINESS, RESIDING AT DO.DO. R.F.A. NO.333/2005-D: 4. C.M.KANCHANA, D/O.LATE KRISHNAN NAMBIAR, AGED 48 YEARS, RESIDING AT DO.DO. 5. C.M.SANAL KUMAR, S/O.LATE KRISHNAN NAMBIAR, AGED 44 YEARS, CENTRAL GOVERNMENT EMPLOYEE, RESIDING AT DO. 6. C.M.CHANDRA BHANU, S/O.LATE KRISHNAN NAMBIAR, AGED 43 YEARS, RESIDING AT P.B.NO.5471, DOHA, QATAR. 7. C.M.UDAYA BHANU, S/O.LATE KRISHNAN NAMBIAR, AGED 40 YEARS, RESIDING AT P.B.NO.52378, DUBAI, U.A.E. 8. C.M.SWAPNA, D/O.LATE KRISHNAN NAMBIAR, AGED 33 YEARS, NO OCCUPATION, C/O.O.PREMAKUMAR, CEAT MAHAL 3RD MAHAL,3RD FLOUR, 463 ANIE BESANT ROAD, WORLI, MUMBAI. R1 TO R8 BY ADVS. SRI.V.R.KESAVA KAIMAL, SRI. N.M. MADHU. THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29/10/2010, THE COURT ON 19/11/2010 DELIVERED THE FOLLOWING: prv. THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A. No. 333 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of November, 2010. JUDGMENT Bhavadasan, J, Late Krishnan Nambiar and the first plaintiff had nine children. Four of them, along with their mother, instituted O.S. 85 of 2002 and the other children were shown as the defendants in the suit. 2. The suit was one for partition. Properties admittedly belonged to Krishnan Nambiar, who is no more. A schedule consists of two items of immovable properties and B schedule are movables. The plaintiffs claimed 5/10 shares. 3. The suit was mainly resisted by defendants 1 and 2, who put forward a Will said to have been executed by Krishnan Nambiar on 23.11.1996. As per that Will, 9.17 cents of land with the building therein RFA.333/2005. 2 out of 21 cents shown as item No.1 in A schedule was bequeathed to defendants 1 and 2. They therefore contended that that extent of property with the building therein was not available for partition. 4. The court below refused to accept the Will and decreed the suit as prayed for. Defendants 1 and 2 assail the preliminary decree in this appeal. 5. Learned counsel appearing for the appellants criticized the judgment of the lower court on the ground that the court below has not considered the relevant aspects and has taken into consideration irrelevant factors to come to the conclusion that the Will is not genuine. The court has been influenced by extraneous considerations and has not adverted itself to the law on the subject and has infact misdirected itself both on facts and in law. The reason given to disbelieve D.W.2, the attesting witness to the Will is totally RFA.333/2005. 3 unsustainable. There was no justification to come to the conclusion that the Will is shrouded in suspicious circumstances and it does not appear to be genuine. Learned counsel in support of the contention that the Will ought to have been accepted relied on the following decisions: Joseph v. Ippunny (2007(4) KLT 853), Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande ((2003) 8 SCC 537) and Satyanarayana v. Seetharatnam (2005(4) KLT SN 80). 6. Emphasizing that none of the grounds relied on by the court below to reject the Will is justified, learned counsel went on to point out that the property covered by Ext.B1 Will ought to be excluded from partition. 7. Learned counsel appearing for the respondents on the other hand contended that the court RFA.333/2005. 4 below has taken note of several suspicious circumstances, which the propounders were unable to explain to the satisfaction of the court. Only one of the attesting witnesses had been examined. The Will is of the year 1996. A reading of the evidence of D.W.2, the attesting witness, will clearly show that he was not at all familiar with the testator and the evidence of the propounder, namely, D.W.1, is far from convincing. The court below has also noticed that there is considerable difference in the signatures of Krishnan Nambiar on Ext.B1 Will and his admitted signature found in Ext.A1. Supporting the judgment of the court below, learned counsel contended that there was no reason to interfere with the preliminary decree passed by the court below. 8. The question that arises for consideration is whether the finding of the court below that the Will has not been proved is correct and justified. RFA.333/2005. 5 9. The two main aspects, which impressed the court below, were that the genuineness of the Will was not established and the suspicious circumstances were not dispelled. While the contention of the contesting defendants is that there was no justification to suspect the genuineness of the Will and the evidence of D.W.2, the plaintiffs in the suit contend otherwise. 10. Before going into the facts and the evidence in the case, it will be useful to refer to the law regarding the making of a Will and the proof of Wills. 11. The Will is a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death. It is revocable during the lifetime of the testator and it is known as ambulatory in nature. The law regarding the Wills is contained in Section 63 of the Indian Succession Act, which is concerned with the RFA.333/2005. 6 drawing up of the Will and Section 68 of the Indian Evidence Act deals with the proof of a Will. Section 63 of the Indian Succession Act reads as follows: “63. Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare,or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:- (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. © The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has RFA.333/2005. 7 seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time,and no particular form of attestation shall be necessary.” 12. Going by the above provision, a Will must be executed according to the following rules: i) The testator must sign or affix his mark to the Will or it must be signed by some other person in his presence and by his direction. ii) The signature or mark must be so placed as to appear that it was intended to give effect to the writings of the Will. RFA.333/2005. 8 iii) The Will must be attested by two more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will in the presence and by the direction of the testator or having received the personal acknowledgment from the testator of his signature or mark or the signature of such other person. Each of the witnesses must sign the Will in the presence of the testator. 13. It is not necessary that the attesting witnesses should see each other signing the Will. It is significant to notice that while it may not be necessary for the testator to affix his signature on the Will in the presence of the attesting witnesses, since acknowledgment of his signature would be sufficient, in the case of attesting witnesses, they have to affix the RFA.333/2005. 9 signature in the presence of the testator. A person of sound mind, not being a minor, can execute a Will. 14. Section 68 of the Indian Evidence Act reads as follows: “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.” RFA.333/2005. 10 15. Going by the above provision, in the case of a Will, it is necessary to examine atleast one of the two attesting witnesses to prove the due execution and attestation of the Will. In cases where the attesting witnesses are not available, Section 69 of the Indian Evidence provides for other modes of proof. 16. It is by now well settled that the burden of proof of a Will is on the propounder. He must prove that the Will was duly executed and attested. Execution means the testator executed the deed with a sound disposing state of mind and was fully conscious of what he was doing and the nature of disposition made by him. 17. Attestation means the act in relation to the execution of an instrument. It means signing a document for the purpose of testifying the signature of the executant. A person is not an attesting witness, unless he puts his signature on the Will animo RFA.333/2005. 11 attestandi, that is, signing the Will after seeing the testator sign. There seems to be no bar even for a minor to be an attestor unless the court feels that the understanding of the minor is affected by tender years. The effect is that a Will should satisfy the following ingredients: i) The testator should have testamentary capacity. ii) The Will should contain the signature of the testator. iii) Will was duly attested by atleast two witnesses and iv) There should be proof of execution of the Will. 18. Since the Will speaks after the death of the person concerned, proceedings involving a Will contain an element of solemnity in it. Apart from the burden RFA.333/2005. 12 cast on the propounder to prove due execution and attestation of the Will, in case suspicious circumstances are pointed out regarding the execution of the Will, there is an added burden on the propounder to explain to the satisfaction of the court those suspicious circumstances and satisfy the conscience of the court. He has to establish that the Will in question is the last testamentary disposition of the testator. Once it is shown that the Will has been duly executed and attested, then the nature of disposition made as per the document is of little consequence. It is not the concern of the court to determine whether the distribution is fair, just, or unconscionable, unjust or unfair. The bequest may be foolish, but it is not within the province of the court to consider the wisdom of the bequest. It is not possible to catalogue as to what are the suspicious circumstances. It varies from case to case. It arises essentially out of a RFA.333/2005. 13 factual situation. Some of the factors, which may be used for the determination of the validity of the Will are i) proof of genuineness of the signature or mark of the testator, ii) the mental capacity of the testator to execute the Will, iii) the level of the testator's comprehension of the nature and effect of the disposition, iv) the fact or otherwise of the signature in the document by the testator of his own free will, v) suspicious circumstances such as shaky handwriting, a feeble and debilitated mental condition or an unnatural disposition, vi) the part played by the propounder of the Will in securing the instrument of Will, vii) incorrect information regarding the relatives, viii) the exclusion of natural heirs without assigning any reasons for it and ix) a literate testator affixing thumb impression on the Will. Once the execution is properly proved, then, the propriety of the disposition made as per the Will may RFA.333/2005. 14 not be an issue that arises for determination of the court. Merely because a Will is registered, it does not lead to the conclusion that the Will is a genuine one. The act of execution denotes the authenticity of the contents of the writing of the Will and means accepting the recitals in the document. All attendant circumstances having nexus with the execution of the Will and the testamentary capacity of the testator have to be taken into consideration. 19. It is by now well settled that it is sufficient that only one of the attesting witnesses need to be examined to prove the due execution and attestation of the Will. Proof of attestation requires proof of i) the signature of the person executing the document and ii) the signature of the attesting witnesses. For a valid Will, the Will should be attested by two or more attesting witnesses. Each of them must either see the testator RFA.333/2005. 15 sign or affix his mark on the Will or receive a personal acknowledgment of the testator or signature of such other person. Each of them should sign the Will and that should be done in the presence of the testator. In cases where only one of the attesting witnesses is examined, it is necessary for him to speak about the attestation by the other witness also. Otherwise, both the attesting witnesses will have to be examined. 20. There is no specific standard for the proof of a Will. Proof of a Will is like any other document especially for the special need of proof as per Section 68 of the Indian Evidence Act. Some of the decisions on the point may now be referred to. 21. In the decision reported in Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443), which has been considered as the locus classicus on the point, it is stated as follows: RFA.333/2005. 16 “The party propounding a will or other wise 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 S.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 with the handwriting of the persons 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 RFA.333/2005. 17 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. 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, RFA.333/2005. 18 when it is propounded or produced before a Court, the testator who has already departed the work 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 RFA.333/2005. 19 by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus of the propounder can be taken to be discharged on proof of the essential facts just indicated.” 22. Following the decision in Venkatachala Iyengar's case (supra) in the decision reported in Shashi Kumar v. Subodh Kumar (AIR 1964 SC 529) it was held as follows: “The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S.63, Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious RFA.333/2005. 20 circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, RFA.333/2005. 21 that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations.” 23. In the decision reported in Benga Behera v. Braja Kishore Nanda (AIR 2007 SC 1975) the question as to what constitutes execution and attestation and what are the suspicious circumstances and the burden of the propounder have been discussed. There, it has been held as follows: “If an authority in performance of a statutory duty signs a document, he does not become an attesting witness within the meaning of S.3 of the Transfer of Property Act and S.63 of the Succession Act. The term 'attestation' means: RFA.333/2005. 22 “to 'attest' is to bear witness to a fact. The essential conditions of valid attestation are (i) two or more witnesses have seen the executant sign the instrument, (ii) each of them has signed the instrument in presence of the executant.” “Animus attestandi” is a necessary ingredient for proving the attestation. If a person puts his signature in a document only in discharge of his statutory duty, he may not be treated to be an attesting witness. We may, however, notice that in B. Venkatamuri v.C.J. Ayodhya Ram Singh and others (2006(1) SCALE 148), this Court upon considering a large number of decisions opined that proof of execution of Will must strictly satisfy the terms of S.63 of the Indian Succession Act. It was further more held: “It is, however, well settled that compliance of statutory requirements itself is not sufficient as would appear from the discussions hereinafter made.” RFA.333/2005. 23 It was observed: “Yet again S.68 of the Indian Evidence Act postulates the mode and manner in which proof of execution of document required by law to be attested stating that the execution must be proved by at least one attesting witness, if an attesting witness is alive and subject to the process of the Court and capable of giving evidence.” It was emphasised that where there are suspicious circumstances, the onus would be on the propounder to remove the suspicion by leading appropriate evidence stating: “However, having regard to the fact that the Will was registered one and the propounder had discharged the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the Court Affirmatively that the testator did not know well the contents RFA.333/2005. 24 of the Will and in sound disposing capacity executed the same. Each case, however, must be determined in the fact situating obtaining therein. The Division Bench of the High Court was, with respect, thus, entirely wrong in proceeding on the premise that compliance of legal formalities as regards proof of the Will would subserve the purpose and the suspicious circumstances surrounding the execution thereof is not of much significance. The suspicious circumstances pointed out by the learned District Judge and the learned single Judge of the High Court, were glaring on the face