IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932 AS.No. 104 of 2001(C) --------------------- OS.105/1995 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT(S): DEFENDANT: --------------------------------------------- APPUNNI, S/O. MAYAPPAN, RESIDING AT AYYAPPANKAVU, KARINGARAPPULLI AMSOM, PALAKKAD TALUK. BY ADVS. SRI.V.CHITAMBARESH, SRI.KRISHNA PRASAD. S. RESPONDENT(S): PLAINTIFF: ---------------------------------------------- SUNDARI, W/O. CHAMIYAR, RESIDING AT AYYAPPANKAVU, KARINGARAPPULLI AMSOM, PALAKKAD TALUK. BY ADVS. SRI.D.KRISHNA PRASAD, SRI.JOJI VARGHESE, SRI.M.HARISHARMA. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 15/07/2010 ALONG WITH AS NO. 516 OF 2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.719/2001 IN AS NO.104/2001 DISMISSED 15/07/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. ........................................... A.S.NOs.104 & 516 OF 2001 ............................................. Dated this the 15th day of July, 2010. J U D G M E N T These appeals are preferred against the common judgment and decree in O.S.No.299/1994 and O.S.No.105/1995. O.S.No.299/1994 is a suit for partition filed by the appellant and the other suit is filed by the defendant in the partition suit for recovery of possession of the property. The court granted a decree in O.S.No.105/1995 directing the defendant to surrender vacant possession of the plaint schedule property and dismissed the suit for partition. It is against these decisions, these appeals are preferred. 2. Heard the learned counsel for both sides. The brief facts necessary for the disposal of these appeals are stated as follows: It is the case of the appellant that he is the adopted son of one Chamiar and on the death of Chamiar, he had inherited the property and that during the life time of Chamiar, he had executed a Will on 16.1.1991 whereby out of two acres of double crop land, one acre is set apart to the appellant with : 2 : A.S.NOs.104 & 516 OF 2001 20 cents of house and compound and the remaining one acre of double crop land is bequeathed in favour of one Sundari, wife of Chamiar, who is the plaintiff in the other suit. So, the appellant has sought partition of the property in accordance with the Will executed by Chamiar. 3. The defendant, on the other hand, would contend that appellant is never the adopted son of Chamiar and Chamiar had not executed any Will as alleged in the plaint and the plaintiff does not have any right or possession over the plaint schedule property in O.S.No.105/1995 and therefore she has sought recovery of possession of the property on the strength of title. 4. The learned trial judge did not accept the case of adoption as well as genuineness of the Will - Ext.A1 and therefore non suited the appellant and granted a decree in favour of the plaintiff in O.S.No.105/1995. The result of the case would depend upon two factors namely adoption as well as genuineness of the Will. At the time of filing the suit, the appellant was 35 years old and therefore in a suit of 1995, it can be gathered that the plaintiff was born somewhere in : 3 : A.S.NOs.104 & 516 OF 2001 1960 which is after coming into force of the Hindu Adoption and Maintenance Act. So adoption which is a well known factor under the Hindu Mithakshara Law was given a statutory stamp by the said enactment of 1956. As per the provisions of the Hindu Adoption and Maintenance Act, a male who is of sound mind is competent to take adoption and if his wife is alive, she shall give the consent for such adoption. Similarly the person who is taking adoption should not have other male children and the person who gives in adoption should also give his consent and hand over the child to the person who is adopting. So far as the first ingredient is concerned, it is evident from the written statement that the wife does not accept the adoption which means she had not consented to any adoption and there is no evidence tendered to prove the same. Similarly adoption can be proved by the person who has given in adoption or who was present at the time of adoption. None of the witnesses are there who had witnessed the alleged adoption and the person who had given in adoption had not been examined as well. We do not know whether they are : 4 : A.S.NOs.104 & 516 OF 2001 alive or not. So the basic and fundamental ingredients necessary to constitute a valid adoption is totally absent in this case and therefore the plea of adoption cannot be accepted. When the appellant is the brother's son of this Chamiar and he has been brought up by this person that by itself will not amount to legal satisfaction of the requirement of adoption under the Act. Therefore adoption cannot be sustained as done by the court below. 5. The crucial question is regarding the genuineness of the Will. Ext.A1 is an unregistered Will alleged to be executed by Chamiar whereby he had bequeathed his property of two acres of double crop land and 20 cents of land with a house. As per the stipulations in the Will, one acre of double crop land with 20 cents of land and a house is bequeathed in favour of the appellant and the remaining one acre of double crop land is bequeathed in favour of the plaintiff in O.S.No.105/1995 namely the widow of Chamiar. 6. The learned counsel for the appellant very strongly contends before me that the materials available would convincingly establish regarding the correctness and : 5 : A.S.NOs.104 & 516 OF 2001 genuineness of the Will and the trial court has erred in not holding so. The principle to be followed in deciding about the Will has been succinctly laid down in the decision of the Hon'ble Supreme Court reported in H. Venkatachala v. B.N. Thimmajamma (AIR 1959 SC 443). The Hon'ble Supreme Court has held that it is the duty of the propounder of the Will to prove the Will and if there are suspicious circumstances surrounding the execution of the Will, it has to be removed by the propounder and the court further cautioned that the court deciding the genuineness of the Will is sitting in the arm chair of the testator who is not available at the time of the case and therefore it has got a very heavy responsibility to analyse the matter properly and arrive at a decision. Mere compliance of Section 63 may not result in holding that the Will is valid and genuine. It is true that under Section 63 of the Indian Succession Act, a Will has to be attested by two witnesses and it is necessary to examine at least one of the attesting witnesses and further the witnesses should sign in the presence of the testator and the testator should see the witnesses affixing : 6 : A.S.NOs.104 & 516 OF 2001 their signature in the Will. These are the requirements for proper proof of a Will. Mere proof of a Will does not ipso facto guarantee the correctness or genuineness of the same. It is with these principles in background, we have to analyse the evidence of PWs 1,4 and 5 and DW1 in this case. 7. PW4 is the attesting witness. PW5 is the scribe. PW4 in his chief examination had in a parrot like fashion spoken about the ingredients necessary to constitute proper attestation of a Will. But in the cross examination, he would depose that they had gone to the office of one Premanandan, the scribe, and the said Chamiar had handed over the bundle of papers to Premanandan and he had noted the points in a paper and asked the attesting witnesses to wait. According to him, after writing the documents, it was Premanandan who had read over the document to the said Chamiar. It is also his version that there was a direction to Chamiar to put two signatures on the last page. According to him, after he had put his signature, Kannan had affixed his signature in the document. He would further depose : 7 : A.S.NOs.104 & 516 OF 2001 that, according to him, the Will was written in four or five pages and that it was in stamp papers and that the same papers for the purpose of writing the Will would have been taken by the scribe himself. According to him, the draft was read over by the scribe. It is also stated that after the signature of the scribe, nobody has written anything or put any signature. But it is evident from Ext.A1 that the last signature in the document is that of Chamiar, the executant and not the scribe. This is the evidence of PW4. 8. PW5 is the scribe. The date of execution of the alleged Will is 16.1.1991. When he is examined, he would depose that he was working with one Ambika Devi and there were two scribes in that office. He would further depose that Chamiar had approached Ambika Devi and Ambika Devi had collected the details and given the notings in her handwriting and it was on the basis of those notings, he had prepared the document. It was totally against what PW4 had spoken. He had joined the office of Ambika Devi only in July 1991 and again clarified that till Chingam 1991, he was working as a panchayat member and as a C.P.M : 8 : A.S.NOs.104 & 516 OF 2001 loyalist. If this version is true and as the Will is alleged to be executed on 16.1.1991, the case projected by the propounder will fall to the ground. It is also interesting to note that the Will was prepared from Palakkad town which is in Koppam amsom is admitted by PW5. But the Will is said to have been prepared at Karingarappully which is the residential place of Chamiar. Further when a Will is prepared from the office of a scribe, generally it will be have the address of that office. Here what is given as address of the scribe is his permanent address. If on 16.1.1991 as spoken to by PW4 the things had happened, that witness at least would have mentioned about who were all present in that building. According to PW5, they contacted Ambika Devi and it was only basing on the notings of Ambika Devi, the document was prepared by the scribe. So that itself speaks in large volume about the inconsistency of the case. It has also to be remembered that the Sub Registrar's Office, Palakkad is at a distance of 5 minutes walk from the office of the alleged scribe. It is also stated that the scribe advised the said Chamiar to register : 9 : A.S.NOs.104 & 516 OF 2001 the document. But he did not do it for want of time. This is also a highly unbelievable story. 9. I am conscious of the fact that Will is not a compulsorily registerable document. But when a Will is registered, the court would have at least the advantage of knowing that the person had gone to the officer of the Government whose performance of work is governed by Section 114 of the Evidence Act that is the presumption and the court would have appreciated in that angle. Therefore non registration is pointed out only for that limited purpose. 10. The learned counsel for the appellant would strongly contend before me that attestation has to be analysed with the evidence of PW4 and the writing part has to be analysed with the evidence of PW5. I feel that it cannot be compartmentalised when the will is liable to be examined to find out its correctness or genuineness. Therefore it is only the combination of evidence of all concerned that has to be looked into in order to arrive at a proper decision. The version of PWs 4 and 5 makes this : 10 : A.S.NOs.104 & 516 OF 2001 Court to arrive at a decision that execution of the Will is only surrounded by suspicious circumstances. When the suspicion cannot be removed to the satisfaction of the court and the probability that the Will had been come into being after July are circumstances which have to be stated as a ground for not upholding the correctness or genuineness of Ext.A1 on which the appellant relies. Therefore I find that the appellant has failed to establish the execution, genuineness and correctness of Ext.A1. When it is so and as he has failed to establish the adoption as well, the plaintiff will not be entitled to inherit any share from Chamiar. Therefore the partition suit has to fail. When the adoption and the Will goes, then as a legal representative under the provisions of the Hindu Succession Act, the widow will succeed to the entire property and therefore her title stands established . When her title stands established and there is no question of limitation, then necessarily the plaintiff in O.S.No.105/1995 is entitled to the recovery of possession as prayed. So, I do not find any ground to interfere with the judgment and decree rendered by the trial court. : 11 : A.S.NOs.104 & 516 OF 2001 Therefore these appeals fail and they are dismissed but under the circumstances without any order as to costs. The appellant herein is given three months' time to vacate the premises. M.N. KRISHNAN, JUDGE. cl : 12 : A.S.NOs.104 & 516 OF 2001 M.N. KRISHNAN, J. ........................................... A.S.NOs.104 & 516 OF 2001 ............................................. 15th day of July, 2010. J U D G M E N T