IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 RSA.No. 854 of 2008() --------------------- AS.80/2006 of D.C. & SESSIONS COURT,KOLLAM OS.42/2001 of MUN-MAGI COURT, PARAVOOR .................... APPELLANTS 1. K.SAHADEVAN PANAYIL VEEDU, PARIPPALLY,KOLLAM. 2. K.SASIDHARAN DEVAKI VIHAR, PARIPPALLY,KOLLAM. 3. A.SARASWATHY LAILA MANIDRAM, PARIPPALLY,KOLLAM. 4. A.SANTHA LAISA MANDIRAM, JAWAHAR JUNCTION PARIPPALLY,KOLLAM. BY ADV. SRI.MILLU DANDAPANI RESPONDENT(S): 1. R.RAMANI, MULAKKAL VEEDU, KUNNUVARAM, ATTINGAL, CHIRAYANKEEZHU TALUK, TRIVANDRUM DISTRICT. 2. AJEENA R.SIVAN, MULAKKAL VEEDU, KUNNUVARAM, ATTINGAL, CHIRAYANKEEZHU TALUK, TRIVANDRUM DISTRICT. 3. AJITH R.SIVAN MULAKKAL VEEDU, KUNNUVARAM, ATTINGAL, CHIRAYANKEEZHU TALUK, TRIVANDRUM DISTRICT. 4. K..SIVAPRASAD SAHADEVA VILASAM, KOTTACKARAM,PARIPPALLY,KOLLAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No. 854 of 2008 = = = = = = = = = = = = = = Dated this the 10 th day of November, 2008 JUDGMENT Defendants 1 to 4 in O.S.No.42/2001 on the file of the Munsiff's Court, Paravoor are the appellants in this second appeal. The said suit was one for declaration that plaintiffs 2 and 3 alone are having title over the plaint schedule property admeasuring 14 cents and for a perpetual injunction restraining the defendants from trespassing into the plaint schedule property . There was also a prayer to set aside Exts.A6 judgment and A7 preliminary decree in O.S.No.241/1996 which was a suit for partition between between defendants 1 to 5. 2. The common ancestor of the parties was Pappu Kesavan who died on 19.9.1996. Defendants 1 to 5 are his children. The 1st plaintiff is the wife of the 5th defendant and plaintiff's 2 and 3 are their children. Plaintiffs claimed right over the plaint schedule property as per Ext.A1 unregistered will dated 25.9.96 executed by Pappu Kesavan, the father of defendants 1 to 5 bequeathing the plaint schedule property to plaintiffs 2 and 3 R.S.ANo.854 of 2008 2 who are the children of the 1st plaintiff and 5th defendant as mentioned above. 3. The suit was resisted by the defendants contending, inter alia, that Ext.A1 unregistered will was not duly executed by Pappu Kesavan and it was not the last will and testament of Pappu Kesavan. 4. PW3 is one of the attestors to Ext.A1 will. He proved due execution of the will by Pappu Kesavan. Testamentary capacity of Pappu Kesavan was not an issue between the parties because even the defendants had taken up a contention that Pappu Kesavan was hail and hearty and having good mental capacity. It was contended by the defendants that he was looking after his own affairs until his death and he had a Bank account and he used to operate the same until his death. In fact the findings recorded by the courts below that the defendants have no dispute regarding the testamentary capacity of Pappu Kesavan is not assailed in this second appeal. 5. Other circumstances which were highlighted by the appellants before the courts below are the following:- R.S.ANo.854 of 2008 3 1. The will was executed by Pappu Kesavan while he was in the hospital and the plaintiffs did not examine the doctor who was attending on him to prove his testamentary capacity. 2. The two earlier wills executed by Pappu Kesavan were both registered wills. Ext.B1 and B2 are those registered wills. If Ext.A1 was a genuine document then Pappu Kesavan would have registered the said document also. 3. The signatures allegedly of Pappu Kesavan in Ext.A1 will do not appear to be genuine? 4. One V.T.Rajan, who is one of the two attesting witnesses although reported to be dead was a fictitious person. 5. By Exts.B1 and B2 earlier wills, Pappu Kesavan had given all his properties to all his children. Therefore, It was quite improbable that Pappu Kesavan would have bequeathed the plaint schedule property to plaintiffs 2 and 3 alone to the exclusion of all his children. 6. When the testamentary capacity of Pappu Kesavan was not an issue between the parties the non-examination of the doctor attending on Pappu Kesavan, while he was in hospital, R.S.ANo.854 of 2008 4 was held to be not fatal to the plaintiff's case. The registration of a will is only optional under the Registration Act. Hence, non- registration of will by itself is not a suspicious circumstance. The courts below noted that merely because two of the earlier wills executed by Pappu Kesavan were registered documents does not mean that a 3rd will executed by him shall also be a registered instrument. 7. As for the dispute regarding the signature of Pappu Kesavan in Ext.A1, the specific stand taken by the defendants is that the signature of Pappu Kesavan was inserted fraudulently. But then it must be remembered that the person who attacks a testamentary document on any of the vitiating circumstance like fraud, undue influence, misrepresentation, coercion etc., the burden is upon him to prove the same. Absolutely no steps were taken by the appellants to have the signature appearing in Ext.A1 to be compared by a handwriting expert with the admitted signatures of Pappu Kesavan occuring in documents which were admittedly in the custody of the appellants. 8. Pappu Kesavan had initially bequeathed the plaint schedule property to one of his sons by name Ganeshan. But R.S.ANo.854 of 2008 5 unfortunately the said Ganeshan predeceased Pappu Kesavan and the plaint schedule property reverted to Pappu Kesavan. That is why he executed A1 will bequeathing the property to plaintiffs 2 and 3 who are his grandchildren. It cannot be said that there was an unfair selection of the persons or unequal distribution of his assets was made by Pappu Kesavan by executing Ext.A1. The very purpose of executing a will is to disturb the natural order of succession and that by itself cannot constitute a suspicious circumstance. 9. It is in evidence that Rajan the other attestor to Ext.A1 is no more. The law does not require that both the attestors to the will should be examined to prove the due execution of a will. The trial court which had unique advantage of seeing the witnesses and assessing their credibility had absolutely no doubt or difficulty in accepting the testimony of PW3, the attester to Ext.A1 will. He has proved the due attestation of will as required under Section 63 of the Indian Succession Act. The lower appellate court which had the opportunity to re-appreciate the entire evidence has not chosen to disagree with the conclusions reached by the trial court. The decision relied on by the learned R.S.ANo.854 of 2008 6 counsel for the appellant reported in 2006(13) SCC 449 cannot have any application in the light of the proved circumstances which have been elaborately adverted to in the judgments under appeal. No question of law, much less any substantial question of law arises for consideration in this second appeal. A finding regarding due execution of will is a pure finding of fact for which there cannot be any substantial question of law for interference in the rarified jurisdiction of this Court under Section 100 C.P.C The questions of law formulated in the memorandum of appeal do not arise for consideration in this second appeal which is accordingly dismissed in limine. Dated this the 10 th day of November, 2008. V. RAMKUMAR, JUDGE sj