IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 RFA.No. 419 OF 2005() --------------------- OS.418/2001 OF ADDL.SUB COURT, IRINJALAKUDA APPELLANT/PLAINTIFFS. -------------------------------------- 1. M.R.LALITHA, D/O.M.V.RAMAKRISHNAN, T.C. 8/1795, (1) LAKSHMI NAGAR, THIRUMALA, TRIVANDRUM. 2. M.R.IRIJA, D/O.M.V.RAMAKRISHNAN, T.C. 15/646 (30 VELLAYAMBALAM, POST SASTHAMANGALAM, TRIVANDRUM. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SRI.S.M.PREM SMT.K.P.SANTHI SRI.P.RAMACHANDRAN (PALAKKAD) SMT.ANALAKHUSI BHASKAR RESPONDENTS: DEFENDANTS. ------------------------ 1. SAHANU RAJAM, W/O. LATE M.V.RAMAKRISHNAN MALIAKKAL HOUSE, E.CHALAKKUDY VILLAGE, CHALAKKUDY POST, MUKUNDAPURAM TALUK. 2. M.R.RAJAN, S/O.LATE M.V.RAMAKRISHNAN, MALIAKKAL HOUSE, E.CHALAKKUDY VILLAGE, CHALAKKUDY POST, MUKUNDAPURAM TALUK. (DIED) 3. M.R.MOHANAN, AGED ABOUT 38 YEARS, S/O.LATE M.V.RAMAKRISHNAN, MALIAKKAL HOUSE, E.CHALAKKUDY VILLAGE AND POST, MUKUNDAPURAM TALUK. 4. M.R.BABU, AGED ABOUT 35 YEARS, S/O.LATE M.V.RAMAKRISHNAN, MALIAKKAL HOUSE, E.CHALAKKUDY VILLAGE AND POST, MUKUNDAPURAM TALUK. 5. M.R.ASOKAN, MALIAKKAL HOUSE, E.CHALAKUDY VILLAGE, CHALAKKUDY POST, MUKUNDAPURAM TALUK. 6. M.R.SUJATHA, D/O.M.V.RAMAKRISHNAN, MALIAKKAL HOUSE, E.CHALAKKUDY VILLAGE, CHALAKKUDY POST, MUKUNDAPURAM TALUK. 7. P.P.PREMA, W/O.RAJAN, MALIAKKAL HOUSE, E.CHALAKKUDY VILLAGE, CHALAKKUDY POST, MUKUNDAPURAM TALUK. 8. M.R.BABY, S/O.M.R.RAJAN, MALIAKKAL HOUSE E.CHALAKKUDY VILLAGE, CHALAKKUDY POST, MUKUNDAPURAM TALUK. 9. INDIAN BANK, CHALAKKUDY BRANCH, POST CHALAKKUDY, REPRESENTED BY ITS MANAGER, INDIANBANK, CHALAKKJDYBRANCH, POST CHALAKKUDY. 10. SINDHU RAJAN, MALIAKKAL HOUSE, E.CHALAKKUDY VILLAGE, CHALAKKUDY POST, MUKUNDAPURAM TALUK. 11. BINDHU RAJAN, MALIAKKAL HOUSE, E.CHALAKKUDY VILLAGE, CHALAKKUDY POST, MUKUNDAPURAM TALUK. 12. SANDHYA RAJAN, MALIAKKAL HOUSE, E.CHALAKKUDY VILLAGE, CHALAKKUDY POST, MUKUNDAPURAM TALUK. (RESPONDENTS 7,8, & 10 TO 12 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 2ND RESPONDENT AS PER ORDER ON MEMO DATED 4.1.2007 CF NO. 97/07 DATED 8.1.2007.) BY ADV. DR.K.P.SATHEESAN DR.K.P.SATHEESAN SRI.S.SREEKUMAR SRI.K.K.GOPINATHAN NAIR SRI.S.EASWARAN SRI.K.K.RAJEEV THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10/12/2007, ALONG WITH RFA NO. 496 OF 2005 THE COURT ON 08/01/2008 DELIVERED THE FOLLOWING: P.R. RAMAN & V. K. MOHANAN, JJ. = = = = = = = = = = = = = = = = = = = = R.F.A NOS. 419 & 496/2005 = = = = = = = = = = = = = = = DATED THIS, THE 8TH DAY OF JANUARY, 2008. J U D G M E N T Raman, J. Both the above appeals arise out of the same judgment rendered by the Sub Court, Irinjalakuda, in O.S. 418/2001, dated 19.1.2005. While the plaintiffs filed R.F.A. 419/2005, defendants 1, 4, 5 and 6 filed R.F.A. 496/2005. 2. The suit was one for partition and separate possession of the 1/7th share each from plaint A, B and C schedule properties and its separate possession. Plaint A schedule is immovable properties, B schedule is Rs. 10 lakhs deposited in the Bank, as per the land acquisition proceedings and C schedule is movables worth Rs. 2,05,000/-. The averments in the plaint are as follows: Late Ramakrishnan had married thrice. The first defendant is his third wife and plaintiffs and defendants 2 to 6 are his children. The first plaintiff and the second defendant were born to him through his first wife, second plaintiff is born through the second wife and defendants 3 to 6 are born through his third wife, the first defendant. Plaint A schedule properties were acquired by him and he was in possession and enjoyment of RFA NOS. 419 & 496/05 :2: those properties till his death on 24.10.1998. After the death of Ramakrishnan, the properties devolved upon the plaintiffs and defendants and they are in joint possession and enjoyment of the same. Ramakrishnan was suffering from liver cancer and due to his illness his health was shattered. He had no sound disposing state of mind and he was bed ridden due to his illness after he was discharged from the hospital. Defendants 2 to 6 were managing the plaint schedule properties and they were appropriating the income therefrom. The plaintiffs and defendants 2 to 5 had 6 acres 7 cents of property in Survey No. 1599/2D, 1600/2B and 1601/1 of Kodakara Village which was subsequently acquired by the Government of Kerala and an amount of Rs.61,363/21 was awarded as compensation. Ramakrishnan received the same as the guardian and father of the other defendants. Since the plaintiff and defendants were minors, the said amount was deposited with the 9th defendant Bank, which was renewed from time to time. The said amount has devolved upon defendants 2 to 5 and the plaintiff, which is shown as B schedule to the plaint. Challenging the award and claiming enhancement, L.A.R. 91/1975 was filed before the Sub Court, Irinjalakuda and by the award rendered on 23.12.1981 that court granted an additional compensation of Rs. 72,600/- towards land value and Rs. 4,572/- towards value of coconut trees besides other statutory benefits. A further RFA NOS. 419 & 496/05 :3: appeal as L.A.A. 249/1982 was preferred before this court which was allowed by judgment dated 11.1.1989 granting further enhancement. The said amount is also available for partition. Plaintiffs are entitled for 1/7th share each and share of Ramakrishnan along with other legal heirs. Plaint C schedule movables belonged to Ramakrishnan in the house in item No.1 of plaint A schedule properties. After the death of Ramakrishnan, the plaintiffs had not been given any share from the income and hence they are entitled for a decree for partition and recovery of their 1/7th share each from the plaint schedule properties and its separate possession. 3. Subsequently, the plaint was amended and it was pleaded that Ramakrishnan had not executed any Will as contended by the defendants and without prejudice to the said contention if the court ultimately finds that the Will was executed validly, even then they are entitled to get the share shown therein. 4. The second defendant filed written statement and also an additional written statement. Defendants 1 and 3 to 6 also filed written statement. According to them, the suit is not maintainable. The allegation that Ramakrishnan had no sound disposing mind during his last days is denied. According to them, Ramakrishnan had sound disposing mind till his death and he had executed a Will which was registered as Will No. No. RFA NOS. 419 & 496/05 :4: 74/94. Subsequently, he revoked the same and executed Will No. 65/95 which was again revoked in 1998 by executing a third Will - No. 148/98 dated 17.10.1998. These documents are produced as Exts. B1, B2 and B3 respectively. Thus the last of his Will was Ext.B3 and on the death of Ramakrishnan, the Will came into force and the plaintiffs and defendants are in possession of the properties, as per the same. As per Ext.B3 Will, the Bank deposit and movables belonged to Ramakrishnan will go to defendants 3 to 5. Plaintiffs have thus no right to get share over those movables. According to them, Car KLH 4854 included in C schedule is in the ownership of 4th defendant since separate properties have been allotted as per the Will and the parties are in enjoyment of the same, no suit for partition would lie. As per Ext. B3, the properties devolved on various heirs are reiterated in the written statement. According to those defendants, the suit is liable to be dismissed with cost. 5. In the written statement filed by defendants 7, 8 and 10 to 12, it is contended that prior to the death of Ramakrishnan, he was hospitalized due to serious ailments, that he was inpatient for 22 days and thereafter his condition worsened and he was discharged as a hopeless case on 29.9.1998. Ramakrishnan had no sound disposing state of mind after he was discharged from the hospital till his death. According to them, Ext. B2 Will dated RFA NOS. 419 & 496/05 :5: 12.5.1995 is the last Will validly executed by Ramakrishnan in which he described as to how the properties will devolve on different heirs. Various other contentions are also raised in the written statement which are not quite relevant for the purpose of disposal of these appeals and hence they are not reiterated herein. Those defendants prayed that the suit be dismissed with costs. 6. There is also a contention by the supporting defendants as well as the plaintiffs that Will No. 148/98 ie. Ext. B3 is as a result of fraud committed by defendants 1 and 3 to 6 and is unnatural and improbable. The only Will which is valid in law, according to them, is Ext. B2. The 9th defendant had also filed a written statement and additional written statement. They disputed the correctness of the amount in deposit. They also disputed the contention that Ramakrishnan was holding the amount in trust for others. 7. Based on the contentions raised by the parties, issues were raised by the court below. One of the issues that arose for consideration was as to whether Ext.B3 was executed by the deceased Ramakrishnan and whether the said Will is result of fraud, undue influence or coercion as alleged. The issues as to whether the properties of Ramakrishnan must be governed by Ext.B2 as contended by the defendants and is it his last Will and whether RFA NOS. 419 & 496/05 :6: the plaintiffs are entitled for a decree for partition were also considered. 8. On the side of the plaintiffs PW.1 gave evidence and Exts.A1 to A13 were marked. Evidence on the side of the defendants consist of Exts. B1 to B30, B31, B32 and the oral testimony of DW1 to DW.8. 9. Issue Nos. 1 to 4 were taken together for consideration. After referring to the contentions of the parties and evidence on record, the court below found that, the facts that the plaint schedule properties were acquired by Ramakrishnan,who had three wifes and the relationship of the parties as averred in the plaint, are admitted. During the pendency of the suit, the second defendant died and his children were impleaded as Additional defendants 7,8, 10, 11 and 12. It was also found that Exts.A1 to A13 documents were not disputed by the defendants. Exts.A1 and A2 are the judgment and decree in LAR 91/1995 by which some of the properties belonged to Ramakrishnan and defendants were acquired and compensation was awarded which has been deposited with the 9th defendant. Exts.B1 to B3 are the three Wills produced by the defendants. It was also found that there was no dispute with regard to ExtB1 and admittedly, by executing Ext.B2 Will, Ext.B1 was cancelled and there is no challenge by any of the parties to Ext.B2 Will. But if Ext. B3 is validly executed it contains a recital cancelling Ext.B2 in which event, Ext.B3 Will will be the last of the RFA NOS. 419 & 496/05 :7: Will executed by Ramakrishnan and therefore, at the later stage of the trial, the dispute was really regarding the validity of Ext.B3 Will and if Ext.B3 is vitiated for any reason, the parties are at agreement that the properties will devolve on the legal heirs of Ramakrishnan, in accordance with the terms contained in Ext.B2 Will. 10. While the plaintiff and Additional Defendants 7 to 12 would contend that Ext.B2 alone is valid and Ext.B3 is vitiated for several reasons, Defendants 1 and 4 to 6 who are the appellants in R.F.A. 496/2005, sought to uphold Ext.B3. According to them, Ext.B3 was validly executed and a registered Will. To prove the same, they also examined the attestors of Ext. B3, besides the Registrar and the identifying witnesses. According to them, the last of the Will Ext.B3 executed by Ramakrishnan cannot be assailed on any valid grounds since it was validly executed with sound state of mind of the testator and the allegation that he was unconscious after he was discharged from the hospital till his death is denied. According to them, once the execution of the Will is proved by examining the attesting witnesses and when it is also a registered Will, there cannot be any doubt regarding the state of mind of the testator rousing any suspicion. The burden of proof is on the persons who pleads the same and absolutely there is no evidence adduced by them. When thus the RFA NOS. 419 & 496/05 :8: propoundant of the Will who set up Ext.B3 having proved the registration of the Will, they have discharged their burden and the onus shifts on the others to show that there is any vitiating circumstance to invalidate the Will. 11. The court below found that Ext.B3 cannot be taken as the last Will executed by Ramakrishnan and Ext.B2 is to be considered as the last Will executed by him and the properties will devolve upon the plaintiffs and defendants in accordance with the stipulations contained in Ext.B2. It was further held that since Ext.B2 contains the details of the properties which will devolve upon the legatees, plaint A and C schedule, on the death of Ramakrishnan, will devolve upon the parties in accordance with the stipulations therein. C schedule, as per Ext.B4 registration certificate, belonged to 4th defendant, he being the registered owner even from 23.6.1986 and as such, that item is not available for partition. As regards the deposited amount in B schedule, it was held that on maturity of the deposit, the persons in whose name the deposits are made, will be entitled for the same proportionately. Since Ext. B2 contains stipulations as regards the Bank deposit, the share of Ramakrishnan in the deposited amount will also devolve in accordance with the stipulations contained in Ext. B2. It was further held that Defendants 1, 3,4 , 5 and 6 have failed to prove Ext. B3 as the last of the Will validly executed by deceased Ramakrishnan and RFA NOS. 419 & 496/05 :9: Defendants 7, 8, 10, 11 and 12 have succeeded in proving Ext. B2 Will as validly executed by him. In view of the above finding that the properties are already devolved upon the plaintiffs and defendants based on the stipulations contained in Ext.B2, the suit for partition was dismissed. It is against the said judgment that both these appeals are preferred by the respective parties as already noticed above. 12. Heard both sides. Both sides have placed reliance on various decisions in support of their contentions. As we have already noticed, the first question that arises for consideration is as to whether Ext. B3 Will had been validly executed by the testator. Admittedly, Ramakrishnan was undergoing treatment for liver cancer and he was admitted in the hospital as an inpatient for 22 days from 8.9.1998 to 29.9.1998. Ext. B3 is dated 17.10.1998 and Ramakrishnan died on 24.10.1998. So, there is a time gap of seven days from the execution of Ext. B3 and the death of Ramakrishnan. Defendants 7, 8, 10,11 and 12 are the widow and children of the second defendant in the suit. Second defendant was the son of the deceased through his first wife. They challenge Ext. B3 and support the contention that the only Will that is enforceable is Ext. B2. 13. Before we deal with the evidence adduced by the parties, we may refer to some of the case law on the subject already cited by both sides on RFA NOS. 419 & 496/05 :10: the point as to what are the legal requirements and the effect of Section 68 of the Evidence Act. 14. In Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443) the apex court, after referring to the provisions contained in Sections 67, 68, 45 and 57 of the Evidence Act, held in para 18 as follows: "The party propounding a will or otherwise 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 person 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 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. RFA NOS. 419 & 496/05 :11: 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." Further, in paragraph 19 of the same decision, it is held as follows: "However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world 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 by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. " 15. Further, it is held that there may, however, be cases in which RFA NOS. 419 & 496/05 :12: the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. It is true that if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. Apart from the suspicious circumstances to which we have just referred in some cases the wills RFA NOS. 419 & 496/05 :13: propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or RFA NOS. 419 & 496/05 :14: inflexible rules can be laid down for the appreciation of the evidence. It may however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is no doubt true that on the proof of the signature of the deceased or his acknowledgment that he has signed the will he will be presumed to have known the provisions of the instrument he has signed' but the said presumption is liable to be rebutted by proof of suspicious circumstances. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated. That inevitably would be a question of fact in each case.' 16. In Pentakota Satyanarayana v. Pentakota Seetharatnam ((2005) 8 SCC 67) it was held by the apex court that initial onus is on the propounder to prove execution of the Will and thereafter it shifts to the party alleging undue influence or coercion in execution of the Will to establish its case. The onus on the propounder can be discharged on RFA NOS. 419 & 496/05 :15: adducing satisfactory evidence that the Will was signed by the testator who was at that time in a sound and disposing state of mind, that he understood the nature and effect of the disposition and signed of his own free will. Admission of the executor that he had executed the Will and got it registered could not be easily brushed aside. The mere fact that the beneficiaries under the Will had actively participated in