IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 MFA.No. 554 of 1995(D) ------------------------------ OS.7/1993 of D ISTRICT COURT,THODUPUZHA .................... APPELLANT: IN M.F.A. AND DEFENDANT NO.2 IN OS. ----------------- ANNAKKUTTY W/O. VARGHESE AGED 55 YEARS, RESIDING AT MUTTATHUKUNNEL HOUSE, KARIMBA DESOM, MANNARGHAT TALUK. BY ADV. SRI.V.SANKARA RAJA, SRI. T.N.HAREENDRAN RESPONDENTS: 1 & 2 IN MFA. AND PLAINTIFFS IN OS. ---------------------- 1. JOSEPH @ OUSEPH @ PAPPU AGED 62 S/O. OUSEPH OF KALLINKAKUDIYIL HOUSE, ALAKODE VILLAGE, THODUPUZHA TALUK. 2. JOSEPH AGED 31 S/O. OUSEPH OF DO. DO. 3. ALEY W/O. LATE OUSEPH AGED 80 OF KALLINKAKUDIYIL OF DO. DO. 4. MARYKKUTTY ALEXANDER, AGED 52 D/O. OUSEPH RESIDING AT 11702 MEADINTRIAL IN STAFFORD IX- 77477 , U.S.A. 5. JOHNY S/O. JOSEPH AGED 29 OF KALLINKAKUDIYIL NOW RESIDING AT ROOM NO.22 A SECTOR IV, PUSHPAK VIHAR, NEW DELHI. 6. GEORGE S/O. JOSEPH AGED 27 OF KALLINKAKUDIYIL NOW RESIDING AT HOUSE NO.793, SECTOR VIII FAREADABAD, DELHI. M.F.A. NO.554/1995 7. VARGHESE S/O. LATE VARKEY OF KALLINKAKUDIYIL HOUSE, NOW RESIDING AT MUTHALAKODAM, THODUPUZHA. 8. ALEY, D/O. LATE VARKEY AGED 72 OF MUTTATHUKUNNEL HOUSE, UDUMPANNOOR IDIKKI DISTRICT. BY ADV. SRI.C.J.JOY THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2008, ALONG WITH SA NO. 172 OF 1996 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== MFA No.554/1995 & SA No.172/1996 ===================== Dated this the 16th day of June 2008 JUDGMENT These appeals are preferred so as to decide the genuineness and validity of Ext.A1 alleged to be executed by one Ouseph and two others. So far as MFA is concerned, it was filed as a testamentary O.P. which was later converted into a contentious suit. Even according to the contesting 2nd defendant, viz., Annakutty, her father had exclusive right over the property and he has not executed any Will of his own and the Will relied on by the plaintiffs in the suit is a concocted one and therefore the plaintiffs in the suit are not entitled to the letters of probate and so also she being the plaintiff in the other suit O.S.No.51 of 1990 is entitled to claim partition of the property. So the success or failure of the case depends upon the acceptance of the genuineness of the Will. I may straight away refer to the principle to be followed in such cases. The Apex Court in the decision reported in H.Venkatachala v. B. N.Thimmajama(AIR 1959 SC 443) has cautioned how a case relating to Will has to be looked into. The court reminded that the court while deciding the issue is sitting on the arm chair MFA554/95 & SA 172/96 -:2:- of the testator, who is not available and in such circumstances, if there is suspicion, 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. Learned counsel for the appellant would submit before me the following facts which according to her raises a suspicious circumstance. There was a partition deed in the family Ext.A3, whereby the property was exclusively alloted to the father Varkey and the junction of two others other than Varkey in the Will executed in the year 1988 would raise a serious suspicion in the mind of the parties. Similarly it is contended that the father was unwell and if he had a real disposing state of mind he would not have deprived of his wife and two other children. The trial court has elaborately dealt with the evidence in the matter. The propounder of the Will, viz., the person, who had applied for the probate was aged 62 years and was the only son of Varkey Ouseph. The court below found that the execution of the Will has been proved by PW2, who is the first attestor under Ext.A1 Will. The testator, viz., Varkey Ouseph died only on 30.5.1989. There are two other children of the testator who are respondents 2 and 3 and both of them are daughters. None of the daughters MFA554/95 & SA 172/96 -:3:- and the widow of the testator had chosen to contest the case. PW1 had deposed before the court below that the present appellant was given in marriage in the year 1954 after giving sufficient gold ornaments and cash. It is also stated by the court below that the appellant has confessed that her father was a literate person who could read and write only he was bedridden. It is also submitted that he had taken sufficient loans by encumbering the property. So many questions were put to her regarding the affixture of the signature. She would submit that somebody must have put his signature by holding the hand. It is true that a document by mere registration is not sufficient to establish its genuineness. But, it has also to be remembered that there is a presumption under Section 114 of the Evidence Act. When an act is done by an officer in the course of his business he will do it correctly and without identifying the person one would not have registered the Will. The fact that the executant had gone to the Registrar's office would indicate about his physical capacity and it has to be stated that the documents are registered only after the admission of the signature is done by the executant. In such a circumstance, one cannot simply hold that he was not in a position to understand the consequences of his action. If he was under the treatment of somebody, some documents should have been produced by the appellant to establish that fact. No MFA554/95 & SA 172/96 -:4:- document is forth coming in that direction. 2. Learned counsel for the appellant highlights her argument on the ground that if it is really a document executed by the father, there is no necessity to have the junction of two others, who have no interest in the property. It is explained and the mere junction of somebody who has no right over the property certainly would not raise a suspicion. Normally if a document is attempted to be forged or fabricated, one would bestow his best attention to avert these type of suspicious circumstances. One of the executants had been examined before court and evidence is recorded to the effect that she has joined only to avoid further complications. As PW3 she had deposed that nobody mentioned about the partition deed and so the scribe opined that brother and sister also should join. Her evidence inspired confidence and the explanation is satisfactory. The court below found that evidence of DW1 is not trustworthy. It is also submitted that it will not confer any right. So until and unless there are materials which throws doubt the mind of the court regarding the mental capacity of the testator it is not possible in each and every case on some conjectures and surmises to arrive at a decision regarding the non-genuineness of the document. Learned counsel would contend that junction of persons who are not entitled to any right itself is a suspicious circumstance. I feel it cannot MFA554/95 & SA 172/96 -:5:- be turned to be a suspicious circumstance for the reason that it has been properly explained. The learned District Judge has considered the evidence in the correct perspective and had arrived at a decision. As laid down by the Apex Court , the mind of the court is satisfied by non-existence of suspicious circumstance. The execution of the document is proved. The mental capacity of the testator is proved and the circumstances under which the persons who are not entitled to the property are joined as parties is also explained and one cannot forget the fact that own sister and mother who are also entitled to the property, if there is no Will executed by the father has chosen to remain silent. All these things will certainly go to establish that the finding of the court below cannot be found fault with. 3. The learned counsel for the appellant had cited the decision reported in Chandrasekharan Nair v. Krishnan Nair(1966 KLT 355). In that decision also reference is made to the decision of the Apex Court in AIR 1959 SC 443. The decision also lays down that suspicious circumstances if any surrounding the execution of the Will has to be removed by the propounder. The other decision relied on is 1995(1) ILR Kerala 567 (Ramachandra Rao v. Rajendra Rao) where also the same dictum is laid down. As discussed by me earlier there are no such suspicious circumstances and all the materials necessary are proved. Therefore the MFA554/95 & SA 172/96 -:6:- points laid down in these decisions had been proved. 4. So far as the second appeal is concerned, everything depends upon the finality in the decision of the MF.A. and since I have held in the M.F.A. that Will is a document that can be acted upon and that is genuine, then the court below was right in holding that the plaintiff therein, viz., the appellant is not entitled to any right over the property. Taking into consideration the relationship of the parties and the circumstances, I direct all the parties to bear their respective costs. In the result, M.F.A. and S.A. are dismissed without costs. M.N.KRISHNAN, JUDGE Cdp/-