IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 AS.No. 886 of 1996() -------------------- OS.181/1994 of ADL.SUB COURT, THALASSERY .................... APPELLANT: -------------- C.C.JANU, CHALUPARAMBATH CHEMMERI HOUSE, PUTHOOR AMSOM, CHENDAYAD DESOM, THALASSERY TALUK. BY ADV. SRI.V.V.ASOKAN,JIJIMOL J.VADAKKEN RESPONDENTS: --------------- 1. KAMALA KUNIYIL, POKKANAYI PANNIYANNOOR AMSOM, CHEMBAD DESOM, THALASSERY TALUK. 2. P.C.CHEERUTTY, POKKANAYINTAVIDA CHEMMERI HOUSE, MOKERI AMSOM AND DESOM, P.O KOORARA, VIA, CHEMBAD, THALASSERY. 3. K.C.CHIRUTHA, KUNHIMOTTEMMAL CHERUMERI HOUSE, MAVILERI, P.O CHENDAYAD, PUTHOOR AMSOM, THALASSERRY. 4. T.C.YESODA, CHALUPARAMBATH THAMASIKKUM THAZHE CHALIL HOUSE, PUTHOOR AMSOM, CHENDAYAD DESOM, THALASSERRY TALUK. 5. K.C.NANI, KALLENTAVIDA CHEMMERI HOUSE, MOKERI AMSOM, VALLIYAYI DESOM, P.O PATHAYAKKUNNU, THALASSERY TALUK. ADV. SRI.GRASHIOUS KURIAKOSE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 30/01/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. -------------------------------- A.S.NO.886 OF 1996 (A) ---------------------------------- Dated this the 30th day of January, 2009 J U D G M E N T This is an appeal preferred against the judgment and decree in O.S.No.181 of 1994 on the file of the court of the Subordinate Judge, Thalassery. The suit is one for partition. It is the case of the plaintiff that item No.1 of the plaint schedule property belonged to one Chathukutty by virtue of a document of the year 1972 and item Nos.2 to 4 are the joint acquisition by the said Chathukutty and fifth defendant of the very same year. The plaintiff is the wife of the Chathukutty and on Chathukutty's death, his right in item No.1 and half the right in item Nos.2 to 4 have devolved upon the plaintiff and the mother of the Chathukutty namely Karinchi. When this Karinchi died her right devolved upon the plaintiff and defendants equally and A.S.No.886/1996 - 2 - the fifth defendant is managing the property. Hence, the suit for partition. It is also contended that the averments in the written statement that Chathukutty had executed a will during his life time is without any basis and therefore, the plaintiff has claimed for partition of the plaint schedule property. 2. The defendants 1, 2 and 4 had filed written statement admitting for a division and praying for their shares. 3. The fifth defendant had filed a written statement contending that the plaintiff is not the legally wedded wife of the deceased Chathukutty and that during the life time Chathukutty had executed a Will on 15-12-1972 and on his death the property had devolved exclusively on the fifth A.S.No.886/1996 - 3 - defendant and he is entitled to the property as a whole and therefore, the suit is not liable to be decreed. 4. In the trial court, PWs.1 to 3 were examined. Exhibits A1 to A7 and B1 to B3 were marked. On analysis of the materials available, the trial court found that the plaintiff is the legally wedded wife of Chathukutty and found that Exhibit B1 Will is not genuine and therefore, effected the division of the property. It is against that decision the fifth defendant has come up in appeal. 5. The points that arise for determination in the appeal are :- (1) Whether the plaintiff is the legally wedded wife of Chathukutty? (2) Whether Exhibit B1 Will is executed by Chathukutty and is it valid and genuine? A.S.No.886/1996 - 4 - (3) Is there anything to interfere with the decision rendered by the trial court. 6. Point No.1:- This point deals with the question of the marital relationship between the plaintiff and Chathukutty. It is the case of the plaintiff that Chathukutty had married her as per customary law on 16th March 1978. It is her version that they belonged to Thiyya community and the marriage was done in accordance with the custom prevailing among Thiyya of the locality. According to her, the marriage was conducted in the courtyard of her house by lighting a lamp. She also speaks about the other significant particulars and that Chathukutty tied a Thali around her neck and handed over a pudava. Over and above this, the plaintiff has also produced Exhibit A1, which is the marriage certificate, which would evidence that A.S.No.886/1996 - 5 - Chathukutty married the plaintiff and the marriage was performed on 16-3-1978. The trial court has also examined PW2. PW2 had spoken about his participation in the marriage. He had also spoken about the custom. So, the evidence of PW1 and PW2 coupled with Exhibit A1 would show that Chathukutty had married the plaintiff and there was subsistence of marital relationship between the two at the time of the death of Chathukutty. Such a finding of the trial court does not call for any interference. 7. Point No.2:- This point deals with a more important question regarding the genuineness of the Will. When a Will is under challenge, the propounder of the Will has to prove the execution of the Will and also should remove any suspicious circumstances, if any, surrounding the execution of the Will. The burden, then, only shift to A.S.No.886/1996 - 6 - other side. In this case, the plaintiff would submit that Will is not executed at all by Chathukutty and if at all it is executed, it is vitiated by fraud, undue influence and coercion etc. Exhibit B1 is the disputed Will. It is executed on 15-12-1972. A perusal of the Will would reveal that Chathukutty was aged at 40 years at the time of the execution of the Will. He refers to the title of the property and thereafter, expressed his intention to execute a Will. By the said Will, he had bequeathed the property in favour of the fifth defendant namely the appellant before this court. The document is written by one Vasu and prepared by one Kunhikuttiali. This Kunhikuttiali and Vasu are the attesting witnesses also to the document. The document is presented for registration and it contains the thumb impression of the Chathukutty as well as his admission before the Registrar regarding the execution of the document. The Will has to be A.S.No.886/1996 - 7 - proved under Section 68 of the Evidence Act by examining the attesting witnesses. The attestation has to be proved as contemplated under Section 63 of the Indian Succession Act. Section 63 of the Indian Succession Act would show that the witnesses and the executant should see the signature put by all each other but, it need not be simultaneous. Suppose, the testator and one of the attesting witnesses had signed the Will prior to the coming of the second attesting witness, it is sufficient if the testator acknowledges his signature before the second attesting witness. So with these principles of law let me analyse the materials before this Court to find out whether execution is properly proved. 8. DW1 is the attesting witness and the person who had prepared the Will. He had deposed before the court A.S.No.886/1996 - 8 - that he had prepared Exhibit B1 Will and had signed in Exhibit B1 as witness. He had further spoken to the effect that he had seen Chathukutty signing the document as well as Vasu signing the document and they had also seen DW1 signing the document. He had also spoken to the effect that this Chathukutty was in a perfect health condition and capable of understanding the consequences of his action at the time of execution of the Will. He had been cross- examined by the learned counsel for the plaintiff. In cross- examination, he had deposed that he had previous acquaintance with Chathukutty and he used to come to his office along with others and it was at his instance Exhibit B1 was prepared. He had also stated that he had prepared the draft of the Will and the original of the Will was written by Vasu, who is DW2 in this case. The learned counsel for the first respondent/plaintiff would contend before me that A.S.No.886/1996 - 9 - there is some lacuna in the evidence of DW1. There is a statement to the effect that he did not know about the residence of Chathukutty and that Chathukutty had not signed any other documents from his office on earlier occasion. A total reading of evidence of DW1 would convincingly establish that Exhibit B1 Will was prepared at the instance of Chathukutty who had a sound disposing state of mind at that time and that he had signed the Will in the presence of the attesting witnesses after understanding the implications of the same. 9. Now, I will refer to the evidence of DW2. DW2 is the person namely Vasu who had written the original of the Will. He had proved his handwriting and had further stated that he had also signed in the document as an attesting witness. He had further deposed that he had seen A.S.No.886/1996 - 10 - Chathukutty and other witnesses signing the Will and that they had seen him signing the Will. He would also depose that Chathukutty was aged at about 40 years and was in a perfect state of health and he had not any mental disorder. In cross-examination, he had deposed that he had written the fair as per the directions of DW1. Nothing has been brought out in cross-examination of DW2 to disbelieve his evidence. 10. DW3 is the propounder namely the appellant. She had spoken about the relationship between the parties as well as the competency of Chathukutty to execute the Will at the relevant point of time. The relationship between the appellant and Chathukutty is that of brother and sister. Nothing has been brought out in her cross-examination to show that she was in a position to dominate Chathukutty at A.S.No.886/1996 - 11 - the relevant point of time. The contra evidence challenging the correctness of the Will is that of PW1. At the outset, it has to be stated that PW1 was married by Chathukutty only in the year 1978 and the execution of the Will is in the year 1972. So, there cannot be any personal knowledge for the plaintiff regarding the execution of the Will. She would depose that even at the time of the execution of the Will Chathukutty was suffering from Tuberculosis. Most probably, it may be the one of the reasons of the execution of the Will. So when the evidence of these witnesses are analysed, it is crystal clear that Chathukutty had executed the Will as contended by fifth defendant. It is a settled position that though not conclusive, the admission of the executant before the Sub Registrar regarding the execution of the Will is a piece of evidence that can be looked into for the purpose of proving the execution of the Will. As stated A.S.No.886/1996 - 12 - by me earlier, the evidence of DW1 and DW2 are clinching regarding mental capacity and the execution of the Will by Chathukutty. So, I find that the trial court has totally missed the direction and had failed to analyse the evidence properly regarding the execution of the Will. 11. When a Will is challenged on the ground of fraud, undue influence or coercion, the burden is on the person who alleges it. The mere plea of challenge on undue influence or coercion is not sufficient. It is true that fraud cannot be proved by direct evidence. It can be only proved through surrounding circumstances. It is equally important that it cannot be proved by conjectures and surmises. Similarly, undue influence means an influence whereby a person is able to dominate the Will of the other unduly in getting the benefit. The relationship between the appellant A.S.No.886/1996 - 13 - and Chathukutty was that of brother and sister and she was youngest sister. Chathukutty was aged about 40 years. There was special inclination for Chathukutty towards the appellant is proved by the fact that when the properties item Nos.2 to 4 were purchased, it was purchased in the joint names of the Janu and said Chathukutty that shows they were having close affinity. The mere affinity does not mean undue influence. Ordinarily, a Will is executed only to deprive some person from inheriting the property and it is always executed in favour of the person who is more close to the executant of the Will. So, fraud, undue influence and coercion also does not stand proved in this case. 12. I am totally conscious of the fact that while trying to analyse the genuineness and correctness of the will, the court is sitting in the armed chair of the testator and A.S.No.886/1996 - 14 - therefore, it has to be convinced that not only the mere execution of the Will is established but that such execution is beyond any suspicious circumstances. I do not find any averment regarding suspicious circumstances nor evidence to prove the same. 13. Chathukutty was a person aged 40 years. He was unmarried and living with his younger sister and they had close relationship and it was at that point of time, he decides to execute a Will in favour of the said person who is the appellant before me. Further, the relationship between the plaintiff and the said Chathukutty came into effect only in the year 1978 i.e., six long years after the execution of the Will. It is said that the wife is deprived of the right to get property and when no evidence is produced to prove that the Will is vitiated on any of the grounds known to law, A.S.No.886/1996 - 15 - it cannot be ignored. Even after 10 or 12 years after the marriage, the said Chathukutty did not bother to cancel the Will and revoke the Will, which also shows that he was not inclined to shake what he had done earlier. Therefore, from these discussions, I have absolutely no hesitation to hold that Chathukutty had executed Exhibit B1 Will and had understood the consequences of his action and on the death of Chathukutty as per the terms of the Will the property had devolved upon the appellant and therefore, neither plaintiff nor any other defendants are entitled to have any right over the property. Therefore, the suit for partition is liable to be dismissed and I do so. 14. Point No.3:- In the light of the discussions mentioned above, the judgment and decree of the trial court call for interference. A.S.No.886/1996 - 16 - In the result, the appeal is allowed. The judgment and decree of the trial court are set aside and suit for partition is dismissed, but without costs. I make it clear that the dismissal of the suit does not stand in the way of any settlement between the parties and still one can persuade the appellant to give something to the widow of Chathukutty on a moral sympathy. M.N.KRISHNAN, JUDGE skr