IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 14TH JULY 2011 / 23RD ASHADHA 1933 SA.No. 647 of 1997(B) --------------------- AS.227/1992 of ADDL.DISTRICT COURT, KOZHIKODE OS.166/1987 of I ADDL.SUB COURT, KOZHIKODE .................... APPELLANT(S)/RESPONDENT NO.1/PLAINTIFF: ------------------------------------------------------------------ K.P.LEELA MENON, PANNIYANKAA AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.R.D.SHENOY, SENIOR ADVOCATE SRI.G.UNNIKRISHNON SRI.G.P.SHINOD SRI.P.V.RAMESH SHANKAR RESPONDENT(S)/APPELLANT & RESPONDENTS 3 TO 5/DEFENDANTS 2, 3 & 4 AND THE LRS OF DEFENDANT NO.1.: ------------------------------------------------------------------------------------------------ 1. K.P.RAJAGOPALA MENON, PANNIAKARA AMSOM DESOM, KOZNIKODE TALUK. 2. K.P. RADHA MENON, DO. DO. 3. K.P. RAMACHANDRAN MENON, DO. DO. (DIED) 4. GEETHA, D/O. K.P. PANKAJAM ALIAS THANKAM, GREEN VIEW,WATER FIELD ROAD, 1ST CORNER, BANDRA, BOMBAY-50. ADDL. R5 & 6 IMPLEADED. 5. INDIRA, WIFE OF K.P. RAMACHANDRA MENON, RESIDING AT NEW VIRENDRA APARTMENTS, C.H.S. LTD. FLAT NO.601, PLOT NO, 384, 1ST ROAD, KHAR (W), NEAR JAIN ARCADE, MUMBAI-400 052. 6. MEGHALA, DAUGHTER OF K.P. RAMACHANDRAN, RESIDIN AT NEW VIRENDRA APARTMENTS, C.H.S. LTD. FLAT NO.601, PLOT NO, 384, 1ST ROAD, KHAR (W), NEAR JAIN ARCADE, MUMBAI-400 052. ADDL. R5 & R6 IMPLEADED AS PER ORDER DATED 14.7.2011 IN I.A. 3305 OF 2010. ADV. SRI.O.RAMACHANDRAN NAMBIAR R2 TO R4 SMT.PRASANNA H.KAMATH SRI.V.V.SURENDRAN FOR R1 SRI.P.A.HARISH FOR R1 SMT.RESMI NANDANAN FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27/06/2011, THE COURT ON 14/07/2011 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 647 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of July, 2011. JUDGMENT The plaintiff in O.S.166 of 1987 before the Sub Court, Kozhikode is the appellant. She was non-suited by the lower appellate court. 2. According to the plaintiff the plaint schedule property was purchased utilizing the funds of the plaintiff and defendants 1 to 3 in the name of Smt.Lakshmikutty Amma, who is none other than their mother. Since they were staying outside Kerala, the mother was looking after the properties. The mother did not have the financial capacity to purchase the property. Infact the plaintiff had deposited Rs.3,00,000/- in the name of her mother and fourth respondent and they were allowed to take interest for their personal expenses. The mother had no right over the suit property and she was only a benamidar in respect of the property. After the death of S.A.647/1997. 2 their mother, the plaintiff demanded partition, but the defendants were not in a mood to accede to the request of the plaintiff. Even though the fourth defendant had no manner of right over the suit property, for a proper adjudication, he too was made a party. It is alleged that the fourth defendant had instituted O.S.438 of 1987, which was a suit for injunction and had obtained an interim injunction on the basis of a Will said to have been executed in his favour. The Will is not a genuine document and is a concocted one. The mother of the plaintiff did not have the necessary testamentary capacity to execute the Will at the relevant time. There is no reason as to why special favour should be shown to the fourth defendant in preference to the plaintiff and defendants 1 to 3. On the basis of these allegations, the suit was laid for partition. 3. Defendants 1 to 3 supported the plaintiff. The fourth defendant contested the suit. He pointed out that the suit property was purchased by Smt.Lakshmikutty Amma, the mother of the plaintiff and defendants, using her own S.A.647/1997. 3 funds and she was the owner of the property. She has executed a Will on 14.3.1978, by which she bequeathed the plaint schedule property in favour of the fourth defendant. After the death of Smt.Lakshmikutty Amma, in pursuance of the Will the fourth defendant is in possession and enjoyment of the property. Pointing out that the plaintiff and defendants 1 to 3 have no manner of right over the suit property, he prayed for a dismissal of the suit. 4. On the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A12 from the side of the plaintiff. The defendants had D.Ws. 1 to 3 examined and Exts.B1 to B5 marked. On an evaluation of the evidence in the case, the trial court came to the following conclusions: i) The plea of benami put forward by the plaintiff and defendants 1 to 3 were not proved. ii) Smt. Lakshmikutty Amma had the testamentary capacity at the time of alleged execution of the Will. S.A.647/1997. 4 iii) The house name of the testator shown in Ext.B2 Will is wrong. iv) On a comparison of the oral evidence with the recital in Ext.B2 Will, quite a few of the recitals in Ext.B2 are found to be incorrect and false. v) Had the testator infact executed the Will, those glaring mistakes would not have occurred in the Will. vi) The execution of the Will is not duly proved. vii) The execution of the Will is surrounded by suspicious circumstances. On the basis of these findings, the Will was found against and the suit was decreed and a preliminary decree was passed. 5. The fourth defendant took up the matter in appeal as A.S.227 of 1992. The lower appellate court while confirming the finding regarding benami in favour of the fourth defendant, disagreed with the trial court as regards the finding regarding Ext.B2 Will. The lower appellate court found : S.A.647/1997. 5 i) The testator had the necessary testamentary capacity. ii) Though the statement regarding marriage of the plaintiff may not be as such correct going by the recital in Ext.B2, the evidence shows that she was living with a person by name Senith. iii) The recital regarding the marital life of the second defendant though would appear to be wrong, may be it is possible that the mother was not aware of the death of the husband of the second defendant. The lower appellate court also found that in the written statement of the second defendant there was no averment to the effect that her husband died in 1977. So the discrepancy in the recital in the Will is not of much consequence. The description of third defendant as an official man need not be taken very seriously though it may be wrong. 6. The lower appellate court also found that the evidence of D.W.2, one of the attesting witnesses to Ext.B2 S.A.647/1997. 6 Will, is sufficient to show that the Will was duly executed. Holding so, the Will was found good and genuine and therefore the judgment and decree of the trial court was reversed and the suit stood dismissed. 7. Notice is seen issued on the following questions of law: “a) Did not the lower appellate court act contrary to law in reversing the findings of the trial court on the issue regarding the proof and genuineness of Ext.B2 Will? Are not the findings of the court below on this count contrary to law? b) Is not the findings of the court below that deceased Lakshmikutty Amma had title to the property and that the suit property was not held by her benami for plaintiff and defendants 1 to 3 contrary to law? c) Is not the issue regarding the genuineness of Ext.B2 Will concluded as against defendant No.4 by the decree in O.S.438/87 of the Munsiff's Court, Kozhikode?” S.A.647/1997. 7 8. Learned counsel appearing for the appellant contended that the lower appellate court has grievously erred itself in coming to the conclusion that due execution of the Will has been proved. The evidence of D.W.2, according to the learned counsel, is insufficient to show that the Will was duly executed by the testator. Evidence of this witness has not been appreciated in the proper perspective and that has resulted in holding that the Will is genuine. Further, it was contended that quite a few of the recitals in the Will are found to be patently false and that should have alerted the lower appellate court before holding that the Will was genuine. Learned counsel drew the attention of this court to the date of the Will, i.e., 14.3.1978 and contended that normally it will be presumed that the document will be executed on the date it bears. However, the evidence of D.W.2 shows that the signature of the testator was put in the document only on 16.3.1978. Many of the vital aspects which would show that the Will is open to serious suspicion were brushed aside by the lower appellate court either by S.A.647/1997. 8 saying that they are not covered by the pleadings or that they are not of much consequence. The lower appellate court has failed to appreciate the contentions raised before it regarding the suspicious nature of Ext.B2 Will. The specific plea of the appellant was that Ext.B2 will was not executed as alleged and the testator was unaware of its contents. 9. Learned counsel appearing for the appellants went on to contend that the person who had a major role to play in the drawing up of the Will and attestation was deliberately not examined. The evidence of D.W.2, who is one of the attestors, is totally insufficient and unacceptable. Crucial recitals in Ext.B2 are found to be wrong. One cannot believe that the said statements could have been incorporated had the testator known the contents of the document. The lower appellate court has failed to note that there are several suspicious circumstances which would show that the Will was infact not executed by the testator. The lower appellate court has failed to note the law S.A.647/1997. 9 regarding proof of the Wills and that has resulted in miscarriage of justice. Learned counsel contended that it is well settled that the burden is on the propounder to prove the due execution of the Will and also to remove any suspicious circumstance surrounding the execution of the Will. Learned counsel went on to contend that one fails to understand the observation of the lower appellate court that even if the vital recitals in Ext.B2 are wrong, one need not give much significance to the same. The reasoning given for holding so, according to the learned counsel, is even more curious. According to the lower appellate court, had the document been a manipulated one, it would have been manipulated to perfection and such defects would not have occurred. On the other hand, according to the the lower appellate court false recitals in the Will are guarantee for its genuineness. Learned counsel went on to contend that the judgment of the lower appellate court is perverse and unwarranted by the evidence on record and it needs to be set aside. S.A.647/1997. 10 10. Learned counsel appearing for the contesting respondents in this appeal on the other hand contended that the lower appellate court has considered each of the circumstances highlighted by the plaintiff regarding the suspicious nature of the Will and has found that there is no basis for such suspicion. On an appreciation of the evidence in the case, the lower appellate court found that the Will had been duly executed and it is a genuine document. Learned counsel went on to highlight that the appellant did not in either of the courts below contend that there was want of proof regarding the due execution of the Will. Such a contention is raised for the first time before this court in Second Appeal. May be that there are some slight errors in the Will but they are not fatal. By the evidence of D.W.2 it is proved that Ext.B2 Will was infact executed by Smt.Lakshmikutty Amma. The lower appellate court has considered the law regarding proof of the Will and has come to the conclusion that Ext.B2 is a genuine document. It is essentially a finding of fact. Learned counsel also contended S.A.647/1997. 11 that no substantial question of law arises for consideration. 11. After going through the records and on hearing learned counsel on either side it is found that two points arise for consideration. They are, (i) Whether the plaintiff has been able to show that the purchase in the name of Lakshmikutty Amma is a benami one, and (ii) Whether Ext.B2 Will is a genuine document. Point No.1 12. Both the courts below have concurrently found that there is absolutely no evidence to show that for the purchase of property by Smt.Lakshmikutty Amma the fund flowed from plaintiff and defendants 1 to 3. The evidence in this regard was furnished by P.W.1 and D.W.3. They claimed that the property was purchased utilizing the fund of plaintiff and defendants 1 to 3 and Smt.Lakshmikutty Amma had no fund of her own. As already stated, neither the plaintiff nor defendants 1 to 3 were able to produce any S.A.647/1997. 12 document to show that they had spend the money for the purchase. Even though it is claimed that a huge amount was deposited in the name of Smt.Lakshmikutty Amma for her livelihood, there is no proof in that regard also. Even assuming that the funds were made available to Smt.Lakshmikutty Amma for her maintenance and had she saved amount so given to her and purchased the property, then also the transaction cannot be termed as a benami purchase. Neither P.W.1 nor D.W.3 were able to say anything regarding the price of the property, location of the property, details of the transaction etc. It has also come out in evidence that Smt.Lakshmikutty Amma was taking income from the property and at no point of time any portion of the income was given to the plaintiff or defendants 1 to 3. Even though P.W.1 and D.W.3 asserted that they have documents to prove their claim, they were unable to produce any such document. It appears that Smt.Lakshmikutty Amma had leased out the property and was receiving the rent. Neither P.W.1 nor D.W.3 has given S.A.647/1997. 13 details of the lease arrangement also. Neither the plaintiff nor defendants 1 to 3 were able to give any satisfactory explanation as to why there should be a benami purchase. In the case of benami purchase, usually the real owner retains the original of the title deed. In the case on hand, from the evidence of P.W.1 and D.W.3 it can be seen that they never had the original title deed of the property. The evidence clearly showed that the purchase was utilizing the funds of Smt.Lakshmikutty Amma and she was in possession and enjoyment of the property and she was dealing with the property as her own. On the basis of these items of evidence, the claim of benami purchase is without any foundation. The courts below found rightly against the said plea. Point No.2 13. The next question is whether the due execution of the Will has been proved and whether any suspicious circumstance exists surrounding the execution of the Will, and if there are, have they been satisfactorily S.A.647/1997. 14 explained to the satisfaction of the court by the propounder. The law regarding proof of Wills is well settled. Section 63 of the Indian Succession Act deals with the manner of drawing up of a Will and Section 68 of the Indian Evidence Act deals with its proof. Decisions are legion in this regard. The lower appellate court has referred to the decision reported in H.Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443). One may also refer to the decisions reported in Meenakshiammal v. Chandrasekharan (AIR 2005 SC 52), Benga Behera v. Braja Kishore Nanda (AIR 2007 SC 1975), Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao (AIR 2007 SC 614). 14. It is by now well settled that to prove the due execution of the Will when there is a dispute regarding the Will, atleast one of the attesting witnesses will have to be examined. He will have to prove the due execution of the Will. The burden is on the propounder to prove the due execution of the Will. It is for him to show that the Will was infact executed by the testator and the testator had the S.A.647/1997. 15 necessary testamentary capacity at the time of execution of the Will. Added to the above, the burden is on the propounder to remove suspicious circumstance, if there exists any. What constitute suspicious circumstance differs from case to case. Some of the circumstances that are highlighted are as follows: i) Propounder took part in the execution of the Will and he is the sole recipient of the legacy. ii) The disposition made in the Will by the testator are unnatural, unfair, improper and improbable. iii) The recitals in the Will do not appear to be correct. iv) The testamentary capacity of the testator is in serious doubt. 15. The above are only illustrative and not exhaustive. As already stated each case will have to be determined on the facts of the said case and no precedents is of much help in this regard. 16. Bearing the above principles in mind, one may now have a scrutiny of the contents of Ext.B2 Will. S.A.647/1997. 16 17. As already noticed, D.W.2 is one of the attesting witnesses, who proved the due execution of the Will. The trial court found his evidence to be in insufficient to prove the due execution of the Will and also that there are certain recitals in the Will which would not have occurred had the contents be known to the testator. The lower appellate court on the other hand found the evidence of D.W.2 to be sufficient and also held that the so-called wrong recitals are of not much consequence. 18. Of course, D.W.2 does speak about the execution of the Will. His evidence needs to be referred to. He would say that he was called to the house of Adv.Leelavathi. When he went there, he found Sri.Aravindaksha Menon and Smt.Lakshmikutty Amma were present there. He claims that Smt. Lakshmikutty Amma gave him the details for the preparation of the Will and he had got the draft approved by his uncle Sri.Sreedharan Nair, because, he did not have a scribe's license. He would say that the the details for drawing up of the draft was narrated S.A.647/1997. 17 by him to Sri. Sreedharan Nair. After preparing the draft, he does not exactly remember whether it was handed over to Sri. Aravindaksha Menon or to Adv.Leelavathi. However, he deposed that draft was brought back to him by Sri.Aravindaksha Menon and fair was prepared. His evidence shows that Smt.Lakshmikutty Amma signed the Will in the veranda of the Registrar's office. He does speak about the attesting witnesses signing the Will in the presence of the testator and vis-a-vis. He also speaks about the testamentary capacity of the testator. According to him, Smt. Lakshmikutty Amma had a sound disposing state of mind at the relevant time. 19. The evidence of D.W.1 is of no help in this regard though he is the propounder of the Will. He feigns ignorance regarding the drawing up of the Will and he deposed that he came to know about the existence of the Will two years prior to the death of his mother when the mother disclosed the fact to him. S.A.647/1997. 18 20. The evidence discloses that at the time when the details for drawing up of the Will was narrated by Smt.Lakshmikutty Amma to D.W.2, Adv.Leelavathi and Sri.Aravindaksha Menon were present. From the evidence of D.W.2 it is seen that since he was not a licensed scribe, he got the draft prepared through his uncle Sri.Sreedharan Nair. The details of the contents of the Will were given to Sri.Sreedharan Nair by him. His evidence disclosed that Smt.Lakshmikutty Amma had not met Sri.Sreedharan Nair at all. The further evidence of D.W.2 is to the effect that he had asked Smt.Lakshmikutty Amma to come to the Registrar's office and she had come and signed the Will. D.W.2 does say that Ext.B2 was read over to Smt.Lakshmikutty Amma from the veranda of the Registrar's office and thereafter she had signed the same. 21. It is significant to notice that the date on which Smt.Lakshmikutty Amma had to come for execution of the Will was pre-determined. If so, normally the Will would have contained the date on which she was asked to come S.A.647/1997. 19 for execution of the Will. In the case on hand, going by the evidence of D.W.2 she was asked to come on 16.3.1978, and normally the Will should have borne the date 16.3.1978. However, no satisfactory explanation could be offered by D.W.2 as to why the Will was dated 14.3.1978 when he was aware of the fact that Smt.Lakshmikutty Amma was asked to come to sign the document on 16.3.1978. In the decision reported in Focker v. Khalid (1973 K.L.T. 540) it was held that normally it will be presumed that the document is executed on the date it bears. 22. The evidence disclosed that it was Sri.Sreedharan Nair, who prepared the draft and details were given by D.W.2. One is unable to ascertain whether the details given by D.W.2 to Sri.Sreedharan Nair is the same given by Smt.Lakshmikutty Amma to D.W.2. As already noticed the evidence of D.W.2 is to the effect that she had signed Ext.B2 from the veranda of Registrar's office. According to D.W.2 he reached the Registrar's office by about 11-11.15 a.m. on 16.3.1978. He took about one and S.A.647/1997. 20 a half hours to read out the document to Smt.Lakshmikutty Amma and for the attesting witnesses to sign the document. He would say that thereafter it was presented for registration and he did not accompany the testator to the Registrar's office. D.W.2 says that he does not know whether the draft was made available to Smt.Lakshmikutty Amma for perusal and whether she had approved the same. His evidence is to the effect that the draft was brought back by Sri.Aravindaksha Menon. It was he who told Sri.Aravindaksha Menon to inform Smt.Lakshmkutty Amma to come to the Registrar's office on 16.3.1978. 23. As already noticed, when the date was fixed as 16.3.1978, one fails to understand how Ext.B2 could have been dated 14.3.1978. There was no reason for ante-dating the document. Though D.W.2 say it took nearly 1 ½ hours after he reached the Sub Registrar's office at 11.15-11.30 a.m. to present the deed for registration, the endorsement by the registering authority shows that the document was presented for registration at 11.15 a.m. S.A.647/1997. 21 24. Taken in isolation, the above discrepancies may not be of much significance. However, one cannot omit to note that none of the others who had knowledge about the Will, namely, Adv.Leelavathi or Sri.Aravindaksha Menon, or the scribe Sri.Sreedharan Nair was examined. There is nothing to show that the details given by D.W.2 to Sri.Sreedharan Nair is the same as the recitals given by Smt.Lakshmikutty Amma to D.W.2. The evidence of D.W.2 shows that the details were narrated by Smt.Lakshmikutty Amma in the presence of Adv.Leelavathi and Sri.Aravindaksha Menon. For reasons best known to the propounder, namely, D.W.1, he chose to examine neither of them. He has no case that they were not available for examination. Examination of atleast one of them would have lend credence to the Will. 25. Then again, the house name of Smt.Lakshmikutty Amma shown in Ext.B2 is 'Karimballi'. In Exts.B3 and B5, which are the admitted documents, her house name is shown as 'Keeramballi'. It is pointed out by S.A.647/1997. 22 the appellant that if as a matter of fact Smt.Lakshmikutty Amma had known the contents of the Will, the above error would not have occurred. This, according to the appellant, is a suspicious circumstance. 26. This again taken in isolation may not be of much consequence at all. One