IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 AS.No. 230 of 1995(C) -------------------------------- OS.88/1990 of PRL.SUB COURT, KOZHIKODE .................... APPELLANT(S): PLAINTIFF ------------------------ MYDHILI, DAUGHTER OF KUNJU, CHIRACKAL, KAIMANGALATH PARAMBU, KOZHIKODE. BY ADV. SRI.P.B.SAHASRANAMAN, K.JAGADEESH RESPONDENT(S): DEFENDANTS ------------------------ 1. DEVI, DAUGHTER OF KUNJIRAMAN, MANAKKIRI, KAIMANGALATH PARAMBU, KOHIKODE. 2. SREEKANTH, ALIAS MURALEEDHARAN ADOPTED SON OF JANAKI, NOW RESIDING AT MANAKKIRI, KAIMANGALATH PARAMBU, KOZHIKODE. ADV. SRI. CIBI THOMAS THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 10/06/2010, ALONG WITH AS NO. 248 OF 1998 AS NO. 249 OF 1998 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.1810/1995 IN AS. NO.230/1995 DISMISSED 10/06/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... A.S.NO.230 OF 1995, A.S.NO.248 OF 1998 & A.S.NO.249 OF 1998 ............................................. Dated this the 10th day of June, 2010. J U D G M E N T A.S.No.230/1995 is preferred against the judgment and decree of the Subordinate Judge's Court, Kozhikode in O.S.No.88/1990. A.S.No.248/1998 is preferred against the judgment and decree of the Subordinate Judge's Court, Kozhikode in O.S.No.755/1992. A.S.No.249/1998 is preferred against the judgment and decree in O.S.No.756/1992 of the same court. O.S.No.88/1990 is a suit for partition filed by the plaintiff contending that the property belonged to one Janaki and by virtue of a Will executed by her on 23.9.1989, plaint A schedule property had been bequeathed in favour of the plaintiff and the defendants and therefore, the plaintiff is entitled to one out of three shares in the property. On the other hand, the defendants would contend that Janaki has not executed any Will on 23.9.1989 and there was a prior Will executed by her which is a document : 2 : A.S.NO.230 OF 1995, A.S.NO.248 OF 1998 & A.S.NO.249 OF 1998 dated 7.9.1989 and by virtue of the said Will, the plaintiff would not get any right over the property and therefore, the suit is liable to be dismissed. O.S.No.755/1992 is a suit filed by the plaintiff in O.S.No.88/1990 for an injunction to restrain the defendants. The other suit O.S.No.756/1992 is filed by the second defendant in O.S.No.88/1990 for a declaration and consequential injunction. He is claiming property under the Will dated 7.9.1989 and since the plaintiff in O.S.No.88/1990 does not have any right over the property and as he is attempting to interfere, a declaratory relief is sought for in favour of the plaintiff. All these three suits were jointly tried and the learned Subordinate Judge held that the Will dated 23.9.1989 marked as Ext.A9 is not the last Will executed by Janaki and held that the last Will is Ext.B6 dated 7.9.1989 and therefore dismissed O.S.Nos.88/1990 and 755/1992 and granted a decree in favour of the plaintiff in O.S.No.756/1992. It is against that decision, the plaintiff in O.S.Nos. 88/1990 and 755/1992 and the first defendant in O.S.No.756/1992 had come : 3 : A.S.NO.230 OF 1995, A.S.NO.248 OF 1998 & A.S.NO.249 OF 1998 forward with these appeals. 2. The crux of the matter depends upon the question which is the last Will executed by Janaki. Janaki was working as a Head Nurse in the Medical College Hospital, Kozhikode. She was not married. The defendant namely Sreekanth @ Muraleedharan is not the son born to Janaki. He is the son brought up by Janaki. The question whether he is a son who was looked after or an adopted son does not detain us long for the reason that it is admitted by all the parties that this person was brought up by Janaki. We are mainly concerned with two Wills dated 7.9.1989 and 23.9.1989. The Will dated 7.9.1989 is a Will registered as document No.88 of 1989. It is executed by Janaki. By virtue of the said Will, she had cancelled the earlier Will executed by her in 1986 (Ext.B5). By virtue of Ext.B6 that is Will dated 7.9.1989, the property had been bequeathed in favour of Sreekanth @ Muraleedharan and also Ambika who is the second plaintiff in O.S.No.756/1992. Ambika is the daughter of Janaky's sister. So if Ext.B6 is the last : 4 : A.S.NO.230 OF 1995, A.S.NO.248 OF 1998 & A.S.NO.249 OF 1998 Will, neither the plaintiff nor anybody else other than the plaintiff in O.S.No.756/1992 would have any right over the property. The next document to be referred is Ext.A9. It is the disputed Will. It is an unregistered Will. It is alleged to be executed on 23.9.1989. As per that Will, two schedules of properties were incorporated and first schedule namely A schedule is bequeathed in favour of the plaintiff and the defendants in O.S.No.88/1990. So far as B schedule property is concerned, it is exclusively set apart to the share of the plaintiff in O.S.No.88/1990. Ext.A10 is the alleged draft of the Will. It is stated that intention of the testator was to deposit the Will under the provisions of the Registration Act before the Registrar and for the said purpose, it had been put in a cover and sealed. But for reasons unknown, it had not been deposited before the Registrar and therefore the question of deposit of the Will does not loom large for consideration in this case. When a Will is projected as the basis for a claim, it is the settled proposition of law that propounder of the Will has to : 5 : A.S.NO.230 OF 1995, A.S.NO.248 OF 1998 & A.S.NO.249 OF 1998 prove to the satisfaction of the court regarding the execution of the Will as envisaged under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. The propounder has also the duty to dispel the suspicion, if any, surrounding the execution of the Will. This has been so held by the Apex Court in the decision reported in H. Venkatachala v. B.N. Thimmajamma (AIR 59 SC 443). The Supreme Court also held that since the person who has executed the Will is not available before the court, the court has to sit in the arm chair of the testator and analyse the materials to decide the things correctly. So the enunciated settled principles would go to show that it is always the burden of the propounder to prove to the satisfaction of the court regarding the execution of the Will. The mental capacity of the person who had executed the Will as well also to be considered to remove the cloud of suspicion, if any, surrounding the execution of the Will. So with this principles of mind, let us analyse the evidence. 3. Normally when a Will is registered, it is revoked : 6 : A.S.NO.230 OF 1995, A.S.NO.248 OF 1998 & A.S.NO.249 OF 1998 by another registered document. I am conscious of the fact that a Will need not be registered, but the conduct of the parties in the said act has to be gathered from the circumstances available in the case. Here is a case where the testator was not having much stability of mind. She was not married and she had brought up the second defendant in O.S.No.88/1990. She had executed the first Will-Ext.B4 in the year 1977, the second Will -Ext.B5 in the year 1986, the third Will-Ext.B6 in the year 1989 (7.9.1989) and the alleged last Will Ext.A9 on 23.9.1989 i.e. within15 days of the third will. There is a see change that we can find from the materials in Ext.B6 and Ext.A9. There is no whisper of any discomfort or misunderstanding between her and the second defendant in O.S.No.88/1990 in Ext.B6. Through out the Will she describes the son as the adopted son and proceeds in that line. Within a short span of 15 days, one finds another unregistered Will produced before the court. By Ext.A9 the attitude of Janaki towards the son is totally changed. As per the Will Janaki is not even prepared to call : 7 : A.S.NO.230 OF 1995, A.S.NO.248 OF 1998 & A.S.NO.249 OF 1998 him as an adopted son. She would go on adding that he is disobedient. He has got into the bad company. Therefore she is not happy with him and therefore executed a Will changing Ext.B6 Will and bequeathing the property in favour of the plaintiff and defendants in O.S.No.88/1990. Now, I will refer to the draft Will also before going to discuss about the evidence. In the draft Will which is marked as Ext.A10, I can find a lot of corrections here and there and it is specifically written therein that the Will is executed with the avowed object of registering it. But when the original Will comes, I find that the word “register” is erased and the word “deposit” in Malayalam is incorporated. It can also be seen that the signature and thump impression of Janaki are not in the place where somebody has marked it. Now let me analyse the evidence. In these type of matters, court has to analyse the evidence and it is the intrinsic reliability and inherent probability that has to be taken into account to uphold the validity of the same. 4. PW2 is the attesting witness to Ext.A9. I may : 8 : A.S.NO.230 OF 1995, A.S.NO.248 OF 1998 & A.S.NO.249 OF 1998 state that there are three attesting witnesses to the document but only a solitary witness is examined to prove the Will. Under Section 68 the mandate is complied with when one of the attesting witness is examined. When a party who propounds the Will has undertaken the risk of examining only one attesting witness, then his case will either succeed or fail on the acceptability of that evidence. PW2 in a parrot like fashion speaks about the ingredients necessary under Section 63 of the Indian Succession Act when he is examined in chief. But in cross examination his total character is changed and for majority of the questions he pretends ignorance. In the chief examination he would say that he and the other witness had signed the Will and that the attester and the testator had signed affixing the signature in the Will. In the cross examination he would submit that it was Janaki who called him to be a witness. He refers to the acquaintance with her from 1969 when he had gone to hospital to attend his aunt and that acquaintance developed into intimacy of a brother and sister and had : 9 : A.S.NO.230 OF 1995, A.S.NO.248 OF 1998 & A.S.NO.249 OF 1998 continued. It has to be remembered that many persons go to hospital and get treatment. Here is a case where the friendship subsisted and developed even after 20 years. He does not know whether Janaki had written any other Will and she has not stated about it to him. He does not know whether Janaki had fixed the scribe for writing the document. It is also his case that he was intimated two days prior to the execution of the document regarding his necessity to be present there. Janaki did not tell to him anything other than to sign. He just perused the paper and he does not know which paper he has perused. He does not know how many papers Janaki had signed. He would say that it was signed from the veranda of Janaki's house. This Janaki died on 23.11.1989 that is exactly two months after the alleged execution of the Will. The man who had shown much of affinity towards this lady did not visit her when she was in the hospital. He has also stated that he had never seen any other signature or thump impression of Janaki. It is also stated that they had not signed anything : 10 : A.S.NO.230 OF 1995, A.S.NO.248 OF 1998 & A.S.NO.249 OF 1998 other than Ext.A9 on that day. A suggestion is put to him that PW1's husband Sreedharan and he were friends. To that he replied that after the estrangement between the husband and wife he does not have any contact with PW1. This is the evidence of PW2. Just a parrot like version in the chief examination, pretending ignorance to each and everything in the cross examination really throws a big suspicion in the mind of the court regarding the credibility of this witness. 5. Now, I may refer to PW3. PW3 is examined to prove that he knows about Exts.A9 and A10. He is shown as the scribe in Ext.A9. Ext.A10 which is the draft of the Will does not show who had prepared it. It has to be remembered that he has no case that he has prepared the draft of the Will. But when he was examined in chief, he would submit that he had prepared the draft namely Ext.A10. In the cross examination he would submit that instruction for preparation of the Will was given by Janaki to the licensee namely Balakrishnan. According to him, it was Balakrishnan who : 11 : A.S.NO.230 OF 1995, A.S.NO.248 OF 1998 & A.S.NO.249 OF 1998 had prepared the draft. But this is directly against his version in the chief examination. He would also submit that whenever a draft of a document is prepared by the licensee or the scribe, it has necessarily to be entered into a register and he would submit that even in spite of getting information regarding his examination he did not peruse the register to find out whether the said draft of the Will or original of the Will finds an entry in the register liable to be maintained under the Rules. He had specifically stated that But he would add that he had not verified the same. He would submit that he knows Janaki two to three years prior to the writing of Ext.A9. He would also submit that he had personal acquaintance with her. But when questions were put further, he would submit that he had never seen Janaki at all. He had stated that He would further add that while he was in the office, he : 12 : A.S.NO.230 OF 1995, A.S.NO.248 OF 1998 & A.S.NO.249 OF 1998 had not seen Janaki coming and meeting Balakrishnan. The date shown in the draft is 23.9.1989 and in words also it is so written. But this witness would state that he had prepared the draft and handed over it on 20.9.1989. So, the evidence of this witness also show that he is not speaking the truth. Now the following circumstances also has to be taken into consideration. I refer to the word non registration for the reason that if a Will is registered, then there will be an endorsement made by the registrar that the testator has produced the Will before him and he had registered the Will. Being an official who is discharging the function officially, one can draw a legitimate presumption under Section 114 of the Indian Evidence Act. Absence of the same militates to a certain extent against the plaintiff in the case. What was the necessity of a lady who had executed a Will on 7.9.1989 to cancel it on 23.9.1989. Absolutely there is no quarrel between her and the second defendant in O.S.No.88/1990 at that point of time for the reason that no accusation is made against him. It has also to be remembered : 13 : A.S.NO.230 OF 1995, A.S.NO.248 OF 1998 & A.S.NO.249 OF 1998 that Ext.B6 Will had been a registered Will and there is no contention for the parties that the said Will was executed by undue influence, coercion, fraud or misrepresentation. It is evident for the reason that propounder of Ext.A9 who is relying on Ext.A9, itself would clearly establish regarding the execution of the registered Will dated 7.9.1989 by Janaki. Therefore on an analysis of the materials, there is no proper acceptable evidence to prove the execution and there are real surrounding suspicious circumstances and the plaintiff has not removed it by giving cogent evidence. So the finding of the court below that Ext.A9 is not validly executed and proved does not call for any interference. Now regarding O.S.No.88/1990 and O.S.No.755/1992. It has to be held that in the light of the finding that Ext.A9 is not genuine, the plaintiff is not entitled to any relief. When it is so, logical corollary is to fall back on Ext.B6. Execution of Ext.B6 is not disputed and cannot be disputed. No attending incriminating circumstances are suggested against execution of Ext.B6. Therefore it will prevail and : 14 : A.S.NO.230 OF 1995, A.S.NO.248 OF 1998 & A.S.NO.249 OF 1998 the plaintiffs in O.S.No.756/1992 are entitled to get right over the property. Therefore the court was right in granting a decree in favour of the plaintiffs in O.S.No.756/1992. So from these discussions, I find that there is no merit in all these appeals and therefore they are dismissed but under circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. cl : 15 : A.S.NO.230 OF 1995, A.S.NO.248 OF 1998 & A.S.NO.249 OF 1998 M.N. KRISHNAN, J. ........................................... A.S.NO.230 OF 1995, A.S.NO.248 OF 1998 & A.S.NO.249 OF 1998 ............................................. 10th day of June, 2010. J U D G M E N T : 16 : A.S.NO.230 OF 1995, A.S.NO.248 OF 1998 & A.S.NO.249 OF 1998