IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 RSA.No. 753 of 2004() --------------------- AS.153/1997 of ADDL. DISTRICT COURT, THALASSERY OS.198/1992 of MUNSIFF COURT, THALASSERY .................... APPELLANT/1ST RESPONDENT/1ST DEFENDANT IN THE SUIT ---------------------------------------------------------------------------------------- SATHI P., D/O. KUNHIKANNAN, AGED 49 YEARS, MELEKALATHI HOUSE, WEST PONNIAM, THALASSERY. BY ADV. SRI.P.SANJAY SRI.A.PARVATHI MENON RESPONDENT(S): APPELLANT.& 2ND RESPONDENT .IN AS/PLAINTIFF&2ND DEF.ENDANT THE SUIT. ----------------------------------------------------------------------------------------------------------- 1. SOBHANA D/O. KUNHIKANNA, AGED 53 YEARS, SANTHOSH NIVAS, WEST PONNIAM, THALASSERY. 2. DINESH BABU P., S/O. KUNHIKANNAN, AGED 45 YEARS, GEM GRIND COMPANY ADOMY, SARADA NAGAR, ANDHRA PRADESH.(DIED) ADDL.R3 TO R6 IMPLEADED R3. SUSHAMA K. AGED 45 YEARS W/O.LATE DINESH BABU, VALIAPRAMBATH HOUSE, PUTHIYAPPA VADAKARA. R4. NITHIN, AGED ABOUT 17 YEARS S/O.LATE DINESH BABU VALIAPARAMBATH HOUSE, PUTHIYAPPA, VADAKARA. REPRESENTED BY THE GUARDIAN, MOTHER SUSHAMA K. R5. VIPIN, AGED ABOUT 14 YEARS S/O.LATE DINESH BABU VALIAPRAMBATH HOUSE, PUTHIYAPPA, VADAKARA, REPRESENTED BY THE GUARDIAN MOTHER SUSHAMA K. R6. MITHUN, AGED ABOUT 10 YEARS S/O.LATE DINESH BABU VALIAPRAMBATH HOUSE, PUTHIYAPPA, VADAKARA, REPRESENTED BY GUARDIAN, MOTHER SUSHAMA.K. LRS OF THE DECEASED R2 ARE IMPLEADED AS ADDL.R3 TO R6 VIDE ORDER DATED 15.7.09 ON I.A.2054/2004. ADV. SRI.B.KRISHNAN FOR R1 SRI.R.PARTHASARATHY FOR R1 SRI.B.KRISHNAN FOR ADDL.R3 TO 6 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17 / 8/ 2011 , THE COURT ON 17/08/2011 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 753 OF 2004 =========================== Dated this the 17th day of August,2011 JUDGMENT First defendant in O.S.198/1992 on the file of Munsiff Court, Thalassery is the appellant. First respondent is the plaintiff. Second respondent is the second defendant. Suit was filed for partition and allotment of 1/3 share due to the first respondent over plaint A schedule property and plaint B schedule movables. Plaint A schedule property admittedly originally belonged to Kanaran, the father of Kunhikannan. On the death of Kunhikannan, the properties were divided by the legal heirs and under the partition deed plaint A schedule property was allotted to Kunhikannan. Though the house was kept common, subsequently the other legal heirs released their right in favour of Kunhikannan in 1989. RSA 753/2004 2 Kunhikannan thus became the absolute owner of the plaint A schedule property. According to the respondents, on the death of Kunhikannan plaint A schedule property and plaint B schedule movables devolved on his legal heirs namely appellant and the respondents. Second respondent is the son and others are daughters. Appellant is admittedly a spinster and first respondent was married. Respondents claimed partition contending that Kunhikannan died intestate. Appellant resisted the suit contending that Kunhikannan had executed Ext.B3 will dated 30.11.1983 and it is his last will voluntarily executed by Kunhikannan whereunder item No.1 therein was bequeathed to the first respondent and item No.2 is plaint A schedule property bequeathed in favour of the appellant and the son was given money earlier and in view of Ext.B3 will plaint schedule properties are not available for partition. After the written statement was filed, first respondent got the plaint amended introducing a plea that Ext.B3 will RSA 753/2004 3 was not executed by Kunhikannan and it is a concocted one. Learned Munsiff accepted the evidence of Dws.2 and 3 the attestors to Ext.B3 will and found that Ext.B3 will was executed by deceased Kunhikannan and it was voluntarily executed by Kunhikannan out of his free will and volition and as Kunhikannan had bequeathed plaint A schedule property in favour of the appellant, plaint schedule properties are not available for partition. Suit was dismissed. First respondent challenged the decree and judgment before Additional District Court, Thalassery in A.S.153/1997. Learned Additional District Judge on re-appreciation of the evidence found that Ext.B3 will was not proved to be the will executed by deceased Kunhikannan, out of his free will and volition. Learned District Judge found that evidence of Dws. 2 and 3 are contradictory and not trustworthy and therefore cannot be relied on. Learned District Judge also found that there is no evidence to prove who scribed Ext.B3 and held that RSA 753/2004 4 the suspicious circumstances surrounding execution of the will was not removed by the appellant, the propounder of Ext.B3 will. Learned District Judge also found that evidence shows that Kunhikannan died hardly within one year after the execution of Ext.B3 will from the hospital and therefore there is no evidence to prove that he was having a sound disposing state of mind, when the will was allegedly executed. District Judge also found that appellant had not effected mutation and did not disclose existence of the will after the death of the father to the respondents. Appreciating the entire circumstances it was held that Ext.B3 will was not executed by deceased Kunhikannan out of his free will and volition and therefore plaint A and B schedule properties were available for partition. A preliminary decree was passed. It is challenged in the second appeal. 2. Second appeal was admitted formulating the following substantial questions of law. “Is not the finding of the RSA 753/2004 5 Lower Appellate Court on the genuineness of Ext.B3 will, arrived at, overlooking the relevant evidence and other materials on record.” 3. Learned counsel appearing for the appellant and respondents were heard. 4. The argument of the learned counsel is that learned Munsiff had occasion to note the demeanour of the witnesses to accept the evidence of Dws.2 and 3 and first appellate court was not justified in disbelieving their evidence on flimsy grounds. Learned counsel pointed out that their evidence was disbelieved on the ground that there is discrepancy as to with whose pen they have signed Ext.B3 will and first appellate court omitted to take note of the fact that they were examined more than ten years after the execution of the will and in such circumstances, the minor discrepancy should not have been weighed with the RSA 753/2004 6 court. Learned counsel also argued that whether mutation was effected subsequent to the death of the testator is not a relevant fact to decide whether Ext.B3 will was executed by the testator and whether it is a valid will or not and therefore the finding of the first appellate court is not sustainable. Learned counsel argued that as is clear from Ext.B3 will, the father executed the will by bequeathing item No.1 therein to the first respondent daughter and item No.2 namely plaint A schedule property to the appellant who was admittedly residing along with the testator at that time. Rs.50,000/- was earlier paid by the testator to the second respondent son and therefore no property was given to him. Learned counsel pointed out that when appellant is a spinster, there is nothing uncommon in bequeathing the residential property to the appellant, while giving the fractional share available to him in item No.1 to the other daughter who is married and on proper appreciation of the evidence first appellate court RSA 753/2004 7 should not have interfered with the preliminary decree. 5. Learned counsel appearing for the appellant argued that Ext.B3 will being an unregistered will was properly appreciated by the first appellate court and Ext.B3 does not disclose who was its scribe and evidence of PW1 also did not throw light as to who was the scribe and in such circumstances, evidence of Dws. 2 and 3 were minutely examined and appreciation of evidence was not perverse. Learned counsel relied on the decision of the Honourable Supreme Court in Maya Devi v. Anant Ram (deceased) & Others (1969) II S.C.W.R.941) and argued that by the examination of the attesting witness alone, execution of the will cannot be proved, as the propounder has a duty to establish that instructions to prepare the will was given by the testator and the testator affixed his signature after realising the disposition made therein and when the identity of the scribe is not disclosed to the court, Ext.B3 will cannot be RSA 753/2004 8 upheld. 6. The only question for consideration is whether Ext.B3 will was executed by deceased Kunhikannan out of his free will and volition. If Ext.B3 will is to be upheld, plaint schedule properties will not be available for partition and if not the preliminary decree passed by the first appellate court is to be sustained. 7. A will is to be proved just like any other document except as to the special requirement of attestation as provided under section 63 of Indian Succession Act. A will has to be proved like any other document as provided under section 68 of Indian Evidence Act, if the attesting witnesses are available for examination. The appellant, propounder of the will examined both the attesting witnesses to Ext.B3, as Dws.2 and 3. Learned Munsiff accepted their evidence and held that Ext.B3 will was executed by the testator. The first appellate court on reappreciation deferred with the findings of the trial court and found that RSA 753/2004 9 evidence of Dws.2 and 3 is not trustworthy and cannot be relied on. Learned counsel had taken me through the depositions of both Dws.2 and 3. Ext.B3 will specifically recites the reasons for giving plaint A schedule property to the appellant and for not giving any property to the second respondent son. It is stated in Ext.B3 that appellant, the second daughter, remains unmarried and therefore the father intended to give item No.2 therein which is admittedly the plaint A schedule property, to the appellant. item No.2 was bequeathed to the eldest daughter, the first respondent, who was the married daughter. Ext.B3 also shows that to enable the husband of the first respondent to purchase a lorry Rs.20,000/- in cash was given earlier. The reason for not giving any property to the second respondent as disclosed in Ext.B3 is that he was given a cash of Rs.50,000/-. It cannot be said that these are not valid reasons for the father not to give any property to the son and to prefer the unmarried daughter to give the RSA 753/2004 10 plaint A schedule property. With this aspect in mind the evidence of Dws.2 and 3 is to be appreciated. 8. The evidence of Dws.2 and 3 establish that the testator affixed his signature in Ext.B3 in their presence and both of them signed in Ext.B3 in the presence of the testator. Their evidence definitely satisfies the requirement as provided under section 68 of Indian Evidence Act with the special requirements provided under section 63 of Indian Succession Act. The first appellate court unfortunately gave undue importance to a minor fact, namely the identity of the pen with which Dws.2 and 3 affixed their signatures. Even the first appellate court did not find that they affixed their signatures with two different pens. The finding is that both Dws.2 and 3 had not given evidence with regard to the identity of a particular pen. As rightly pointed out by the learned counsel appearing for the appellant first appellate court should not have disbelieved the RSA 753/2004 11 evidence on that reason as they were examined ten years after the execution. 9. Though learned District Judge found that there is no evidence to prove that the testator had a sound disposing state of mind at the time of execution of Ext.B3 will and for that purpose relied on the evidence of PW1 that he died from the hospital due to heart attack, that does not mean that the testator was not having a disposing state of mind at the time of execution of Ext.B3 will. The evidence of DW1 is that even on the previous day, the testator had gone for work . The evidence of Dw2 establish that the testator disclosed the details of Ext.B3 and explained him the reason for the bequeathal. In such circumstances based on the evidence it is not possible to hold that the testator was not having a sound disposing state of mind when Ext.B3 was executed, for the reason that he died from the hospital due to heart attack and that too after more than one year from the date of execution of RSA 753/2004 12 the will. The fact whether mutation was effected or not subsequent to the death of the testator, is not a relevant fact to decide whether Ext.B3 will was executed by the testator and whether it is vitiated or not. On a proper appreciation of the evidence, it can only be found that appreciation of the evidence by the first appellate court was perverse. On the evidence the finding of the learned Munsiff that Ext.B3 is proved to be the last will executed by the testator voluntarily out of his free will and volition can only be upheld. The appeal is allowed. The preliminary decree and judgment passed by the learned Additional District Judge, Thalassery in A.S.153/1997 is set aside. The decree dismissing the suit passed by the learned Munsiff in O.S.198/1992 is confirmed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006