IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 AS.No. 211 of 1995(D) -------------------------- (OS.201/1983 of PRINCIPAL SUB COURT, PALAKKAD) .................... APPELLANT(S)/PLAINTIFFS 2 & 3 & 4TH DEFENDANT -------------------------------------------------------------- 1. THANKA, D/O. APPUCHAMY, KAPPAYAM KULAMB, NANNIYODE P.O., PERUMATTI VILLAGE, CHITTUR TALUK. 2. KUTTY, D/O. APPUCHAMY, -DO- -DO- 3. KALYANI, W/O. CHAMI, PATTIKULAM, CHITTUR. BY ADVS. SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE SMT.VANAJA MADHAVAN RESPONDENT(S)/DEFENDANTS 2 & 3 ------------------------------------------- 1. SUKUMARAN, S/O. CHINNA, KAPPAYAMKULAMBU NANNIYODE P.O., PERUMATTY VILLAGE, CHITTUR TALUK. 2. VALLIAMMAL, D/O. CHINNA VILAYOUR P.O., CHITTUR TALUK PALAKKAD DISTRICT. ADVS. SRI.D.KRISHNA PRASAD SRI.JAJI VARGHESE SRI.D.NARENDRANATH THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 13/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SVS/ M.N. KRISHNAN, J. ........................................... A.S.NO.211 OF 1995 ............................................. Dated this the 13th day of September, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Palakkad in O.S.No.201/1983. Originally the suit was decreed and the matter came up before this Court in appeal as A.S.No.357/1986. The judgment was set aside and it was remanded. Against that order, AFA.No.55/1990 was filed and this Court disposed of the AFA by directing the trial court to consider the matter afresh in the light of the observations contained in the judgment or in other words, directed the trial court to consider the question whether the Will has been proved to be genuine and whether suspicion created by the plaintiffs by pointing out various circumstances has been removed. For this purpose, the court can look into the evidence already adduced and the evidence to be adduced after the remand. 2. After the remand, in the trial court PW3 was examined and Exts.A6 to A8 were marked. On the side of the : 2 : A.S.NO.211 OF 1995 defendants Dws 4 to 7 were examined and Exts.B2 to B6 were marked. On an analysis of the materials, the trial court came to the conclusion that both the Wills - Exts.B1 and B2 are genuine and they are not surrounded by any suspicious circumstances and therefore dismissed the suit of the plaintiffs. 3. Before analysing the facts of the case, it is worthwhile to state the position of law with respect to Will. In the decision reported in H. Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443), the Hon'ble Apex Court has held that it is always the duty of the propounder to prove the Will and remove any suspicious circumstances even surrounding the execution of the Will. The Court also held that the person who had written the document is no more and it is trying to find out the truth by sitting on the arm chair of the testator. 4. The brief facts would reveal that the plaint schedule property belonged to one Appuchamy. Plaintiffs are the three children of Appuchamy born in three different wives namely Ammu, Meenakshi and Malu. The sole defendant is : 3 : A.S.NO.211 OF 1995 the wife of deceased Appuchamy. It is the case of the plaintiffs that Appuchamy died and on his death, the property had devolved upon the three daughters and the wife and therefore, the plaintiffs are entitled to 3 out of 4 shares in the property. 5. The defendants resisted the suit on the ground that during the life time of Appuchamy on 18.2.1970, he had executed a Will and therefore by virtue of the Will, on his death the property had devolved upon the defendants and therefore, the plaintiffs are not entitled to any relief. It has also come out now that the sole defendant is dead and by virtue of another Will executed in the year 1980, the property had devolved upon supplemental defendants 2 and 3. 6. Now the question to be considered by virtue of the order of remand is whether the Will is genuine and there are any suspicious circumstance surrounding the execution of Will which would invalidate the Will. So far as execution of the Will and proof of the Will under Section 63 of the Indian Succession Act, the trial court, the first appellate court as : 4 : A.S.NO.211 OF 1995 well as AFA court had found that the Will is executed by this Appuchamy and its execution has been properly proved. 7. When the matter was heard by a learned single Judge of this Court, His Lordship found that there are certain circumstances which requires explanation and if it not properly explained would amount to suspicious circumstance regarding the genuineness of the Will. The Division Bench while considering the AFA also has pointed out the same and those suspicious circumstances that are enumerated are: (1) Exclusion of all the children as legatees in the Will. (2). Blank spaces are seen at the top and bottom in page 3 of Ext.B1 Will. (3). Attestors signed only on the last page where no portion of the contents of the Will is written. (4). Unnatural placing of signatures of attestors and testator on the last page of the Will. (5) The scribe has not been examined to prove the reason for the leaving space on page No.3. 8. The first appellate court felt that other than point : 5 : A.S.NO.211 OF 1995 No.1 all others are explained. But the Division Bench felt that all these may have to be considered together to arrive at a correct decision. The principal point canvassed is that natural heirs had been disinherited and the only one heir is given the entire property which is really unreasonable and that would create suspicion in the mind of a person. Much case law has been relied on this subject and it has been held in very many decisions that mere exclusion of a natural heir by itself does not amount to suspect the genuineness of the Will. But so far as this case is concerned, there is a contention for the contesting defendants that each of these three daughters had been given 4 acres of wet land and 2 acres of dry land during the life time of Appuchamy prior to his death. In order to impress the said fact, the defendants after the remand had produced Exts.B2 to B7 and had also examined DW7. Ext.B3 is an agreement which is not registered. It is an agreement executed by three sons-in-law of Appuchamy in favour of Appuchamy whereby each of them had taken possession of 4 acres of double crop land and two acres of dry land. Exts.B4 and B5 are partition deed as : 6 : A.S.NO.211 OF 1995 well as assignment deed which would refer to nature of the property whereby it can be seen that the property dealt with by them really belonged to Appuchamy. It is true that agreement by itself does not confer any title on the parties, but in one of the documents it is clearly recited that it had devolved upon them even. So it is very clear that during the life time of Appuchamy, the property as described in Ext.B3 had come into possession of the three daughters through their husbands and there is even apportionment of the rent for the property obtained by them. DW7 namely Aru who is an attesting witness to the said agreement had spoken about the factum of mediation pursuant to which properties had been put into possession of the three sons-in-law. Therefore the evidence of DW7 coupled with Exts.B3 to B5 documents would establish that during the life time of Appuchamy he had granted 4 acres of double crop and 2 acres of dry land to the children and therefore one shall not hold that there had been no parting of property in favour of the children. Admittedly under Ext.B3 document, no property has been given to the wife and therefore, it cannot be held : 7 : A.S.NO.211 OF 1995 that there is no justification for executing Ext.B1 Will in favour of the wife - Kuttiamalu. So, the attempt of the plaintiffs to raise a suspicious circumstance by unequal distribution of assets does not detain us long to hold that the Will is surrounded by suspicious circumstances. 9. The next point noted by the Division Bench and Single Bench of this Court is regarding point Nos.2 to 4 which deals with some blank spaces, attestors signatures only in the last page and unnatural placing of the signatures. 10. I had meticulously scanned through the Will. The blank space seen on the third page of the Will is self explanatory. It can be seen that body of the Will ends in the 3rd page and the schedule starts on the 4th page. Normally when documents are written and property schedules are attached it is nothing but a common practice among the scribes to start schedule of the property in a new page. So mere leaving space in page 3 does not by itself create a suspicious circumstance. It has also to be stated that normally in Will which we come across in civil litigation, the attestors do not sign in each page but only sign in the : 8 : A.S.NO.211 OF 1995 last page of the Will. That is what is precisely done in this case also. After attaching the schedule in the last page, name of the witnesses are shown. They had signed thereafter the scribe had also signed and then the executant had also signed. 11. I do not find any suspicious circumstance arising out of such conduct by the scribe. Therefore one cannot hold that mere gap somewhere in the document is a suspicious circumstance to vitiate the genuineness of the will. I do not find any unnatural interpolation or omission in the document so as to make an appearance of imperfection or fraud. Therefore those points are also to be held against the plaintiffs in this case. 12. Lastly regarding non-examination of the scribe. The trial court had considered this aspect and held that when really there are no sufficient suspicious circumstances, which would militate against the correctness of the document, non examination of the scribe cannot be held to be fatal. The trial court held that it is not necessary to examine the scribe under such circumstance when execution of the Will has : 9 : A.S.NO.211 OF 1995 been proved by examination of both the attesting witnesses. So an over all analysis of the entire materials placed before the court, execution and attestation of the document and mental capacity of the executant are proved. It is also proved that property had been given to the persons who are excluded from the Will previously and the document only puts up a natural look and it does not create any suspicion in the mind of the court regarding genuineness. 13. Admittedly Appuchamy was being looked after by his wife and as daughters had been already provided, he thought it fit to provide it to the wife and had executed the Will. So an exhaustive consideration, I also hold that Ext.B1 Will is genuine and therefore the plaintiffs are not entitled to any relief. 14. Now comes the correctness of Ext.B2. Unfortunately during the pendency of the suit the original defendant died and sisters children of the defendants are claiming property under Ext.B2 Will. The trial court has considered the evidence with respect to Ext.B2 Will. The attestors have been examined and scribe has been examined and they have : 10 : A.S.NO.211 OF 1995 proved about the mental capacity of Kuttimalu and also the fact that both the attesting witnesses had seen the executant signing the document and the executant had seen both the attesting witnesses signing the document and therefore the burden under Section 63 of the Indian Succession Act is properly discharged by them. 15. It is also to be stated that Will is executed in the year 1980 whereas the plaintiffs had instituted the suit in the year 1983 and therefore there was no bad intention for Kuttimalu or the supplemental defendants 2 and 3 to create a Will three years prior to the institution of the suit. That is why it is often said men may lie but the circumstances will never lie. The trial court had considered and analysed the evidence of attesting witnesses and the propounder and had arrived at a decision Ext.B2 properly. Therefore the finding that Ext.B2 is valid and genuine has to be upheld. Since Ext.B2 Will is proved to be true, genuine, valid and free of any suspicious circumstances, consequently it follows that plaintiffs are not entitled to get any right over the property and therefore, the finding of the trial court to : 11 : A.S.NO.211 OF 1995 that effect does not call for any interference and therefore judgment and decree of the trial court are confirmed and the appeal is dismissed under circumstances without any orders as to costs. M.N. KRISHNAN, JUDGE. cl : 12 : A.S.NO.211 OF 1995 M.N. KRISHNAN, J. ........................................... A.S.NO.211 OF 1995 ............................................. 13th day of September, 2010. J U D G M E N T