IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 30TH JUNE 2010 / 9TH ASHADHA 1932 AS.No. 148 of 2000(E) ------------------------------- OS.759/1995 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT(S): 4TH RESPONDENT ----------------------- K.RAMACHANDRAN NAIR, SON OF KESAVAN NAIR, VADUTHALA KIZHAKKEDATHU HOUSE, ANICADU VILLAGE. BY ADV. SRI.P.R.VENKETESH SRI.P.R.RAJA RESPONDENT(S): PLAINTIFF AND DEFENDANTS 1 TO 3 -------------------------- 1. V.K.NARAYANAN NAIR, SON OF KESAVAN NAIR, RESIDING AT VADUTHALA KIZHAKKEDATHU HOUSE, ANICADU VILLAGE , DO. KARA. *2. V.K.GOPINATHAN NAIR, DO. EDAPALLI HOUSE, DO. DO. (DIED) 3. V.K.SREEDHARAN NAIR, DO., KIZHAKKEDATHUKUNNU, DO. DO. 4. K.J.RAJAMMA, W/O. CHANDRASEKHARAN NAIR, LAKSHMI VILASAM BUNGALOW, ATHINNAKKAL P.O., PATHANAPURAM TALUK, DO. VILLAGE DO. KARA. *ADDL.R5 TO R7 IMPLEADED. 5. P.S.RAJALAKSHMI, W/O. LATE V.K.GOPINATHAN NAIR, EDAPALLI HOUSE, ANICADU VILLAGE, ANIKADU P.O., PALLIKKATHODU, KOTTAYAM DISTRICT. AS. NO.148/2000 6. SRIJAYA G., D/O. LATE V.K.GOPINATHAN NAIR, DO. DO. 7. SREEJITH, S/O. LATE V.K.GOPINATHAN NAIR, DO. DO. *ADDL. R5 TO R7 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED R2 AS EPR ORDER DTD. 28.8.03 ON CMP. NO.4448/02. R2, ADDL. R5TO R7 BY ADVS. SRI.M.NARENDRA KUMAR, SRI.SALISH ARAVINDAKSHAN. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 30/06/2010, ALONG WITH AS NO. 289 OF 2000 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. ........................................... A.S.NOS.148 & 289 OF 2000 ............................................. Dated this the 30th day of June, 2010. J U D G M E N T These appeals are preferred against the judgment and decree in O.S.No.759/1995 of the Subordinate Judge's Court, Kottayam. A.S.No.148/2000 is filed by the 4th defendant and the other appeal is filed by the plaintiff against the dismissal of the suit for partition. The brief facts necessary for the disposal of the appeal are stated as follows: 2. Admittedly the property sought to be partitioned belonged to Janaki Amma, the mother of the plaintiff and the defendants . She died in the year 1995. It is the case of the plaintiff that on her death the property had devolved upon of her children and therefore all of them are entitled to one out of 5 shares. 3. On the other hand the contesting defendant namely the first defendant who is the eldest son of Janaki Amma would contend that the mother's right over the property by virtue of Ext.B2 Will had devolved upon the first defendant and therefore he is in absolute possession of the property as : 2 : A.S.NOS.148 & 289 OF 2000 well as the title holder and therefore the suit for partition is not maintainable. 4. On an analysis of the materials, the court below found that Ext.B2 Will is properly proved and therefore non suited the plaintiff from getting any share over the property. Aggrieved by that decision, the plaintiff and the 4th defendant have come up in appeal. 5. The only point that has to be considered is regarding the execution, genuineness and acceptability of Ext. B2 Will. As early as in 1959, in the decision reported in H. Venkatachala Iyenkar v.Thimmajamma (AIR 1959 SC 443) the Hon'ble Supreme Court has laid down the principles to be followed in such type of cases. It is for the propounder of the Will to prove the execution of the Will. If there is any suspicious circumstance surrounding the execution of the will, it is for the propounder to remove that suspicion. Similarly if a Will is vitiated by any of the provisions of the Contract Act the burden would lie on the person subject to the exceptions carve out under Sub-sections 16(2) and 16(3) of the Indian Contract Act. The Hon'ble Supreme Court has : 3 : A.S.NOS.148 & 289 OF 2000 also made it very clear that while analysing the correctness of a Will, the court is sitting in the arm chair of the testator and has got the onerous responsibility of discharging its functions by properly analysing the matter. In the subsequent years, there is some relaxation of the rigour that is attached to the matter but still the position is that propounder of the Will has to prove the Will and remove the suspicious circumstance, if any surrounding the Will. 6. I am conscious of the fact that Will is not a compulsorily registrable document and non registration or registration of a Will will not mitigate the rigour of proof. But it has always been stated while looking into the surrounding suspicious circumstance that if a Will is registered, the court can always see that it is presented before a public officer who is exercising the statutory functions and therefore the presumption under Section 114 of the Indian Evidence Act may be of some avail as an added advantage. With these principles in mind, let me consider the Will here. 7. In Ext.B2 it is very clearly recited that mother has : 4 : A.S.NOS.148 & 289 OF 2000 executed the Will in favour of the first defendant for the reason that the other children who had been given other properties are not looking after her and she is looked after by the first son and therefore she has given the property to him. Admittedly, the first defendant does not have any separate source of income even according to him. It is his case that in a partition deed where the property was alloted, the mother has sold his share of the property for the purpose of conducting criminal litigations as well as to look after the other brothers and sister. So he would say that it had worked out in the mind of the mother to grant the property to him. Evidence is let in in this case to show that as early as in 1976 the first defendant has separated from the mother and he was residing in a house for which he had obtained patta. It is true that the brothers are living nearby. From that time onwards till the construction of a new house in the year 1993, the mother lived with the 4th defendant, the youngest son. The evidence of DW1 itself would indicate that the new house was constructed and the 4th defendant shifted his residence to that house only on 15.5.1993. Now it : 5 : A.S.NOS.148 & 289 OF 2000 is the case of the first defendant that the mother of her own interest, who was residing alone in the family house situated in the plaint schedule property shifted the residence to the house of the first defendant on 5.6.1993. We find that on 15.6.1993 the alleged Will is executed by the mother in favour of the first defendant. So one has to state that there is no case for the first defendant that the mother was not in good terms with any of her other children. It is also admitted by DW1 that till the time of mother's death, other children used to come and see the mother. He had also deposed before the court that the mother had stated to them about the execution of the Will but not to him. It has to be also stated that the lady is not of a weak character. This lady and her husband were living separately and she has been charge sheeted for attacking the husband and therefore she was a lady with strong will and from 1957 when she got separated till 1993 she had been living and it has to be stated that she had her own capacity to manage the affairs. What is the dependability of the first defendant has to be considered for the reason that under ordinary : 6 : A.S.NOS.148 & 289 OF 2000 circumstances the mother will not show difference between the children unless there are warranting circumstances. As stated by me earlier, even according to the first defendant the mother was staying with the 4th defendant till 15.5.1993. Even though she had shifted her residence to the first defendant's house, the children were going and seeing her till her death. This man projects himself to be the Saviour of the mother. He started living separately from 1976 onwards and till 1993 the mother was not staying with him at all. That shows the mother did have affinity with the other children. 8. The learned counsel for the first defendant namely the respondent in the case would contend before me that execution of the Will has to be proved under Section 63 of the Indian Succession Act and it is the responsibility of that person to prove the mental capacity of the mother to execute the Will and when there are apparently no other circumstances it has to be held that the propounder has discharged his burden and therefore other things have to be proved by the persons who are opposing the Will. In a case : 7 : A.S.NOS.148 & 289 OF 2000 of this nature, we cannot compartmentalise the facts and read it in isolation to understand the correctness of the Will. It is the whole conduct that has to be considered and appreciated. It can be seen that Janaki Amma was a lady capable of putting her signature in English. Ext.A3 document would show that she had put her signature in English. In Ext.B2 only her thump impression is taken. An explanation is offered to the effect that since she was a diabetic patient, there was shivering in her hand and that prevented her from affixing her signature and therefore thump impression was taken. Everybody knows that in the passage of time when it progresses, the signature will differ. That may not be a criteria to take thump impression of the person when she knows how to sign the document. Now I may have to state the reasons stated in the Will that the other children had abandoned the mother and as the first defendant is looking after her, the Will is executed in his favour has to fall to the ground for the reason that 15 days prior to the execution of the Will the mother was staying with another son and there is no quarrel between that son and the mother. : 8 : A.S.NOS.148 & 289 OF 2000 I do not know a person who was able to look after herself attempted to execute a Will within 10 days of her arrival in the first defendant's house. So I would say that the time of execution of the Will and the reason for execution of the Will projected by the propounder are absolutely suspicious and it has to be considered in that spirit 9. The learned counsel would contend that the Will is proved. As stated earlier just because the necessary ingredients to constitute a proper attestation under Section 63 of the Indian Succession Act is established that by itself will not prove the genuineness of the Will though it proves the execution of the Will. Unlike other documents, Will is a solemn document for the reason that correctness or validity of the same is analysed by the court in the absence of the mother. It has come out in evidence from DWs 2 and 3 that there was some health problem for this lady. Though DW1 would say that the mother was only treated by a homeopathy doctor, DW3 who is a close relative of Janaki Amma would say that the materials available would establish that she had undergone other treatment in other spears of medicine prior : 9 : A.S.NOS.148 & 289 OF 2000 to the Homeopathy treatment. When the doctor was examined, would say that he did not maintain any register for the patients. This is also a very highly suspicious circumstance. It is also to be stated that three more sons and a daughter are there for the deceased Janaki Amma. The 4th defendant namely Ramachandran Nair was living with the mother. It is a common practice that some times old people especially head of the family may not like to leave the Thavazhi house and it would have resulted in her stay back in that house. I do not approve the action of the 4th defendant in leaving the old mother in the house alone and living separately. But it can be seen that within ten days of leaving by the 4th defendant the mother goes to the first defendant, the propounder of the Will. The other children would depose that the mother was unwell and bed ridden and she was removed from the house by the first defendant. But it has to be stated that there are suspicious circumstances surrounding the preparation of the Will itself. 10. DW2 admittedly is a person living near the house of Janaki Amma. He would depose that he was working in an : 10 : A.S.NOS.148 & 289 OF 2000 office and on the date of execution of the Will in the early morning he had gone to the house of Janaki Amma as told by his wife. On his arrival he found that the persons had gathered there and were writing the Will. Then he would depose that there was a draft of the Will. But he does not know who had prepared it. The person who is alleged to be the scribe of the Will is not a scribe by profession. It appears that he is not a licencee as well. It has always to be stated that the Will is a document which requires expertisation for preparation. How the draft of the Will is prepared and under whose instruction the Will is prepared will looms large in the mind of the court and therefore that is also a suspicious circumstance. Then it has to be stated the absolute pretension of ignorance by the first defendant regarding the Will. He would say that his mother died and on the 4th day of his mother's death, he opened a box from there he found a cover. He opened the cover and found that a Will is executed by the mother that too in his favour. According to him, his mother has not spoken anything about the Will to him but he would depose that she had stated : 11 : A.S.NOS.148 & 289 OF 2000 about the Will to the other children. It is quite unbelievable and untrustworthy. Therefore mere proof of attestation of a Will is not sufficient to characterise the Will as genuine. That is why it is always said that men may lie but the circumstances will never lie. The circumstances of this case without any doubt to my mind clearly shows the suspcious nature which the propounder has failed to remove. Therefore I find that the Will cannot be used as a valid document to throw away the case of the plaintiff who is otherwise entitled to share the property. 11. Therefore I set aside the finding of genuineness of the Will and hold that Ext.B2 Will is surrounded by suspicious circumstances and not valid and genuine. When it is so, naturally the property requires division. The property belonged to the mother and the first defendant is in possession of the property. When the property is divided into 5 equal shares, the plaintiff will be entitled to get one share and defendants 1 to 4 each will be entitled to one share. The first defendant being in possession of the property is also liable to pay mesne profits to the other : 12 : A.S.NOS.148 & 289 OF 2000 parties. He had stated that he had expended some amount for the purpose of renovating the house. But the evidence makes it clear that he did not have any source of income to do the same and if he had done any repairs, it would have been only from the amount that is derived from the property held by the mother. Therefore he is not entitled to any amount. Regarding B schedule movables, the evidence is not convincing and therefore partition of B schedule property is disallowed. 12. Therefore the judgment and decree of the trial court are set aside and a preliminary decree for partition is passed as follows: 1. Let the immovable property be divided into 5 equal shares and one such share be allotted to the share of the plaintiff and one such share to defendants 1 to 4 and allotment to the defendants shall be subject to the payment of court fee. If it is already paid, there is no further need for payment. 2. The plaintiff and defendants 2 to 4 are entitled to mesne profits from the date of suit and the quantum of : 13 : A.S.NOS.148 & 289 OF 2000 mesne profits can be decided in the final decree proceedings. 3. Being a suit for partition, the costs of the suit and appeal shall come out of the estate. M.N. KRISHNAN, JUDGE. cl : 14 : A.S.NOS.148 & 289 OF 2000 M.N. KRISHNAN, J. ........................................... A.S.NOS.148 & 289 OF 2000 ............................................. 30th day of June, 2010. J U D G M E N T