IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 MFA.No. 766 of 1999() --------------------- OS.15/1998 of ADDL.DISTRICT COURT, THRISSUR .................... APPELLANT/1ST DEFENDANT: -------------- PETER JOSEPH, SON OF CHAKKRAMAKKIL CHENOTH OUSEPHUNNI, PALUVAI DESOM, CHAVAKKAD VILLAGE, TRICHUR DISTRICT. BY ADV. SRI.P.N.KRISHNANKUTTY ACHAN(SR.) SRI.K.MOHANA KANNAN RESPONDENTS/PLAINTIFFS 1 & 2 AND 2ND DEFENDANT: --------------- 1. RANI JOSEPH, CHAKKRAMAKKIL CHENOTH PALUVAI DESOM, P.O. PALUVAI, CHAVAKKAD VILLAGE, TRICHUR DISTRICT. 2. TATHU JOSEPH, MINOR, REPRESENTED BY GUARDIAN MRS.LISSY JOHN, MOTHER OF 2ND PLAINTIFF, DO. DO. 3. THANKAMMA THOMAS, RESIDING IN UNITY NAGAR, KURIACHIRA DESOM, OLLUR VILLAGE, TRICHUR DISTRICT. (DIED) SUPPLEMENTAL RESPONDENTS: 4. P.O. THOMAS, SAYUJIA APARTMENTS, RAILWAY STATION ROAD, THRISSUR. 5. USHA JOY, W/O.DR.JOY THOMAS, ATHIKARATHIL HOUSE, P.O. KURIACHIRA, THRISSUR. 6. LATHA BOBAN, W/O.BOBAN MANEY, AKARAPATTY HOUSE, SHORANUR ROAD, THRISSUR. (SUPPLEMENTAL RESPONDENTS 4 TO 6 ARE IMPLEADED AS THE L.Rs. OF THE DECEASED R3 AS PER ORDER DT. 5.4.06 ON IA 3255/05) M.F.A.766/99 ADV. SRI.S.V.BALAKRISHNA IYER (SR.) FOR R1 & R2 SRI.JIJO PAUL FOR R1 & R2 SRI.T.P.KELU NAMBIAR (SR.) FOR ADDL.R4 TO R6 SRI.P.G.RAJAGOPALAN FOR ADDL.R4 TO R6 SMT.T.RESMI DAMODARAN FOR ADDL.R4 TO R6 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/01/2009, ALONG WITH MFA NO. 926 OF 1999 & AS NO. 586 OF 1999 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA 766/99 ORDER ON CMP NO.4022/99 IN MFA NO.766/1999 ------------------ DISMISSED. 12.01.2009. SD/- K.BALAKRISHNAN NAIR, JUDGE. SD/- K.SURENDRA MOHAN, JUDGE. /TRUE COPY/ K.BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ----------------------------------------- M.F.A. NOS. 766 & 926/1999 & A.S.NO.586/1999 ----------------------------------------- Dated 12th January, 2009. JUDGMENT Balakrishnan Nair, J. M.F.A.No.766/1999 is filed by the 1st defendant in O.S.No.15/1998 on the file of the 1st Additional District Court, Thrissur, challenging the judgment and decree in the said suit. M.F.A.No.926/1999 is filed against the very same judgment by the 2nd defendant in that suit. These appeals are filed under Section 299 of the Indian Succession Act, aggrieved by the decree granting the plaintiffs letters of administration of the estate of the testator with copy of the Will annexed. A.S.No.586/1999 is filed by the plaintiff in O.S.No.16/1998 on the file of the very same court, challenging the judgment and decree in that suit, dismissing her prayer for partition of the plaint schedule items. 2. The brief facts of the case are the following: Chakkramakkil Chenoth Ousepunny alias C.V. Joseph and his wife Thressia had four children, namely, Peter Joseph, John Joseph, George Joseph and MFA 766 & 926/99 & AS 586/99 2 Thankamma. The properties of his family were partitioned as per Ext.B9 partition deed. The eldest son Peter Joseph, though married, did not have any children. John Joseph had married Lissy and had two children, Rani and Tathu. George Joseph did not marry at all. Thankamma was given in marriage and she had two daughters, who were already married and well- placed. George Joseph was a Government Servant. He retired from service while working as Additional Secretary in the Finance Department of the Administrative Secretariat of the Government of Kerala. He was staying alone in a lodge at Thiruvananthapuram. Apart from the properties allotted to the said George Joseph under Ext.B9, he acquired a plot of land with a building in Thiruvananthapuram also. He had two fixed deposits with State Bank of Travancore, Thiruvananthapuram Branch. The dispute in these cases was relating to the partition of the property of George Joseph, who died on 19.1.1990. John Joseph died on 18.4.1990. If George Joseph died intestate, his mother Thressia, brother Peter Joseph, the legal heirs of his brother John Joseph and sister Thankamma Thomas are entitled to get shares in his estate. But, in this case, the legal heirs of John Joseph claimed that George Joseph had executed a Will bequeathing his properties to the children of John Joseph. Ext.A7 is the photo copy of that Will, which was furnished by the testator to Lissy John, the mother of the legatees. MFA 766 & 926/99 & AS 586/99 3 3. O.S.No.15/1998: This suit was filed by Rani Joseph and Tathu Joseph, the children of John Joseph. Originally, it was filed as O.P. (Probate) No.154/1992 on 14.12.1992 for grant of probate of the Will of late George Joseph at Thiruvananthapuram. Since the proceedings became contentious, it was re-numbered as O.S.No.3/1997. Later, it was transferred as per the order of this Court to the District Court, Thrissur and was re- numbered as O.S.No.15/1998. The plaintiffs in the said suit contended that their paternal uncle George Joseph had great love and affection for them. He executed a Will on 6.1.1988, bequeathing all his properties to them. Soon after the execution of the said Will, a photo copy of it was delivered by him to their mother. They submitted that the original of the Will is either mis-placed along with the personal belongings of late George Joseph or was removed by his relatives, who had access to his room and belongings, after his death. They further submitted that no executor has been appointed in the Will. They are the legatees under the Will and therefore, they prayed for grant of probate of the Will. 4. The 1st defendant Peter Joseph contended, inter alia, that the suit was not maintainable in law or on facts and it was filed as a counter-blast to O.S.1411/1991 for partition, filed by Thankamma Thomas, his sister, which was pending before the Sub Court, Thrissur. Immediately after the death of MFA 766 & 926/99 & AS 586/99 4 George Joseph, there was a meeting in the family for effecting partition of his assets. The plaintiffs' father John Joseph also participated in it and he did not say anything about the Will executed by his brother late George Joseph. In the meeting, it was decided to apply for legal heirship certificate before the Tahsildar. Soon thereafter, all the legal heirs including their mother and also John Joseph, the father of the plaintiffs jointly applied to the Tahsildar,Chavakkad on 16.2.1990. The said officer granted the legal heirship certificate on 6.6.1990. The claim of the plaintiffs that late George Joseph had executed a Will in their favour was false and he died intestate on 19.1.1990. The Will was fabricated by the plaintiffs' mother and Mr.V.C.John, who is the husband of the plaintiffs' mother's sister. So, the 1st defendant prayed for dismissal of the suit. 5. The 2nd defendant, who is the sister of late George Joseph also filed a counter affidavit on similar lines. She denied the claim of the plaintiffs that late George Joseph had executed a Will in their favour. She submitted that the same was fabricated. There was no necessity to invite Mr.V.C.John from Pampady to witness the execution of the Will at Thiruvananthapuram, when several relatives of George Joseph were available there. Based on the above pleadings, the trial court raised the following issues: MFA 766 & 926/99 & AS 586/99 5 (1) Whether the deceased had executed any Will on 6.1.1988? (2) Whether the Will dated 6.1.1988, a copy of which is produced along with the plaint is genuine and is the last Will and testament of the deceased? (3) Whether the plaintiffs are entitled to get letters of Administration with the copy of the Will annexed? (4) Reliefs and costs. 6. O.S.No.16/1998: This suit was originally filed as O.S.No.1411/1991 on 21.11.1991 before the Principal Sub Court, Thrissur. Later, it was transferred as per the orders of this Court, to be tried along with O.S.No.15/1998 and was re-numbered as O.S.No.16/1998. The plaintiff Thankamma Thomas contended that late George Joseph died intestate and the parties are governed by the Indian Succession Act. The defendants in that suit were Peter Joseph, who is the plaintiff's eldest brother, Thresssia, her mother, Lissy John, the wife of her late brother John Joseph, minors Rani John and Tathu John, who are the children of late John Joseph and State Bank of Travancore, Main Branch, Thiruvananthapuram. A schedule to the plaint contained the immovable properties belonging to late George Joseph, as per partition deed No.1673/87 of S.R.O., Chavakkad and also the property covered by assignment deed No.439/74 of S.R.O., Thiruvananthapuram. B schedule to the plaint showed two fixed deposit MFA 766 & 926/99 & AS 586/99 6 receipts evidencing deposit of money by him in the 6th defendant's Bank. The plaintiff claimed that late George Joseph did not execute any Will and therefore, she claimed 1/4th share in the scheduled properties with future mesne profits. 7. The 1st defendant Peter Joseph did not file any written statement. The 2nd defendant Thressia died during the pendency of the suit. Defendants 3 to 5 filed a joint written statement. They contended that the suit is not maintainable and it has been filed collusively by the plaintiff and defendants 1 and 2, to corner the properties of late George Joseph, which were bequeathed to defendants 4 and 5. The original of the Will along with the movables of late George Joseph are in the custody of the 1st defendant. He has suppressed the original of the Will, on coming to understand that the Will is not registered. Late George Joseph was very affectionate and considerate to defendants 4 and 5 and had been treating them as his children. He used to look after their affairs. He did not want the said defendants to be at the mercy of others. In view of the Will executed by George Joseph, the plaintiff or others are not entitled to have any share, it was submitted. 8. The 6th defendant Bank filed a written statement, stating that late George Joseph had two fixed deposits with it, namely, T.D.R.931/89 for an MFA 766 & 926/99 & AS 586/99 7 amount of Rs.1,85,000/- and T.D.R. 872/89 for an amount of Rs.50,000/-. 9. Based on the pleadings in the above suit, the trial court framed the following issues: (1) Whether the schedule properties are partible? (2) Whether late Sri. George Joseph had executed any Will on 6.1.1988 as claimed by defendants 3 to 5? (3) Whether the plaintiff is entitled to any share in the schedule property? (4) Whether the plaintiff is entitled to any future mesne profits and if so, the quantum? (5) Other reliefs and costs. During the pendency of O.S.16/1998, the 2nd defendant died. She had bequeathed her estate by a registered Will in favour of the plaintiff. So, the plaint was amended, claiming the share of the 2nd defendant also. Defendants 3 to 5 filed an additional written statement, disputing the genuineness of the Will stated to have been executed by the 2nd defendant in favour of the plaintiff. In view of the amendment of the plaint, an additional issue was raised concerning the validity of the Will executed by the 2nd defendant. 10. Both the suits were tried together and evidence was recorded in O.S.No.15/1998. From the side of the plaintiffs in O.S.No.15/1998, P.Ws.1 MFA 766 & 926/99 & AS 586/99 8 and 2 were examined and Exts.A1 to A7 were marked. PW1 is Lissy John, the mother of the plaintiffs. PW2 is V.C.John, who is the husband of the sister of their mother. From the side of the defendants D.Ws.1 to 3 were examined and Exts.B1 to B12 were marked. DW1 was Peter Joseph, DW2 was Thankamma Thomas and DW3 was Davis Chirammel, who was an attestor to Ext.B12 Will executed by Smt.Thressia. The trial court considered issue Nos.1 and 2 in O.S.No.15/1998 and issue No.2 in O.S.No.16/1998 together. Those issues were concerning the execution of the Will by late George Joseph on 6.1.1988. The trial court elaborately considered those issues with reference to the evidence on record and found those issues in favour of the plaintiffs in O.S.No.15/1998. It was found that late George Joseph had executed a Will on 6.1.1988, bequeathing his properties to the plaintiffs and that Ext.A7 is a true photo copy of that Will. The next issue considered by the trial court was additional issue No.6 in O.S.No.16/1998, concerning the genuineness of Ext.B12 Will. The said issue was found in favour of the plaintiff therein. In the light of the findings on issue Nos.1 and 2 in O.S.No.15/1998 and issue No.2 in O.S.No.16/1998, all other issues in both the suits were found in favour of the plaintiffs in O.S.No.15/1998. In the result, O.S.15/1998 was decreed and the plaintiffs therein were ordered to be given letters of administration with copy of the MFA 766 & 926/99 & AS 586/99 9 Will Ext.A7 annexed. 11. Aggrieved by the judgments and decrees in the above suits, the present appeals are filed. We heard the learned senior counsel Sri.P.N.K.Achan and learned counsel Sri. P.G.Rajagopalan for the appellants and learned senior counsel Sri.S.V.Balakrishna Iyer for the contesting respondents. 12. Learned counsel Sri.P.G.Rajagopalan made the following submissions on behalf of the appellants in M.F.A.No.926/99 and A.S.No.586/1999. He submitted that the execution of the alleged Will is surrounded by suspicious circumstances. He points out that the Will is seen executed on the letter-pad of the testator. Normally, a retired high ranking officer would not have done that. He even disinherited his mother under the disputed Will. A witness from Kottayam was called to witness the execution of the Will, when some of the cousins of the testator were available at Thiruvananthapuram. A senior officer like him could have called other officers also, who were his colleagues or friends for the said purpose. The learned counsel also submitted that the jurisdictional pre- conditions for admission of secondary evidence in terms of Section 65(a) of the Indian Evidence Act were not available in this case. It is pointed out that PW1 Lissy John does not have a specific case regarding possession of MFA 766 & 926/99 & AS 586/99 10 the original of the Will. The plaintiffs in O.S.15/1998 pleaded that photo copy of the Will was personally delivered to their mother Lissy John. But, when she was in the witness box, she stated that it was received by post on 9.1.1988. But, Ext.A5 postal cover in which the said photo copy was stated to be enclosed bears the delivery stamp dated 9.6.1988. So, it is pointed out that the plaintiffs do not have a specific case which will fall within the four corners of Section 65(a) of the Indian Evidence Act. The learned counsel also pointed out certain other circumstances which will weaken the claim of the plaintiffs. He pointed out that when the father of the plaintiffs John Joseph was alive, the members of the family moved for legal heirship certificate before the Tahsildar, to collect the service benefits remaining unpaid to late George Joseph from the Government. Sri. John Joseph was a signatory to that application and at that time he did not stake any claim for the service benefits on the strength of the Will, though, going by the terms of the Will, his children were entitled to collect the same. Thus, the Will was not pressed into service at the earliest point of time. It is also pointed out that Sri.Velappan Nair, the 1st attestor to the alleged Will was not examined. Only the interested witness PW2 was examined to support the case of execution of the Will. Regarding possession of the original of the Will by Peter Joseph, there are no proper pleadings. The learned counsel MFA 766 & 926/99 & AS 586/99 11 also submitted that even the original of Ext.A7 cannot be treated as a Will. A reading of the same would not show that there was any disposition of property under it. He points out that the non-examination of the Manager of the lodge to show that it was Peter Joseph alone who removed the belongings of late George Joseph, is a serious lacuna in the case of the plaintiffs. Finally, it is pointed out that there is no attestation by the witnesses on the first sheet of the Will. Admittedly, the Will is executed in two sheets. Attestation is made only in the second sheet of it. The learned counsel relied on the decision of the Apex Court in J.Yashoda v. K.Shobha Rani [(2007)5 SCC 730] and the decision of this Court in British India Steam Navigation Co. Ltd. v. M/s.Shanmughavilas Cashew Industries, Quilon [I.L.R. 1974(2) Kerala 150], to support the submission that secondary evidence can be adduced to prove a document, if only the conditions under Section 65(a) of the Evidence Act are satisfied. In support of his submission that Ext.A7 is no Will at all, as there is no clear statement regarding disposition of property, the learned counsel relied on a passage from the Law of Wills, 6th Edition at page 47, authored by Mantha Ramamurti. The said passage would show that mere wish of the testator is not sufficient, but there should be expression of the clear intention to MFA 766 & 926/99 & AS 586/99 12 dispose of his property. In support of his submission that non-attestation by the witnesses on the first sheet of the Will will make it invalid, the learned counsel relied on the decision in Venkata Reddy v.Sathi Reddy [(1973)2 A.L.T. 180]. To support the contention that the non-examination of Mr.Velappan Nair, the 1st attestor to Ext.A7 Will is fatal, the learned counsel relied on the statement of law in Field's Commentary on Law of Evidence, 12th Edition at page 2926. In this case, the trial court compared the handwriting in the disputed Will and that in the admitted documents and came to the conclusion that the Will was executed by George Joseph. The same is impermissible, in view of Sections 45 and 73 of the Indian Evidence Act. The plaintiffs should have moved the court and sent the document for the opinion of a handwriting expert. In the absence of such an examination, the court should not have ventured to compare the handwriting and come to a conclusion. The learned counsel also submitted that such practice has been deprecated by the courts time and again. 13. The learned senior counsel Sri.P.N.K.Achan, who appeared for the appellant in M.F.A.No.766/1999, supported the above submissions of the learned counsel Sri.P.G.Rajagopalan and further pointed out that the deposition of PW2 does not inspire confidence. PW2, in his deposition, has stated that after the execution of the Will, when they went out to take a MFA 766 & 926/99 & AS 586/99 13 cup of tea, the original was also carried by the testator. He further pointed out that the explanation given by PW1 for her husband joining the application for legal heirship certificate lacks credence. She claims soon after the receipt of the photo copy of the Will, she informed her husband of it. Still, he joined the application for legal heirship certificate. The same would tend to show that the Will was manufactured later. The learned senior counsel also relied on the decision of the Apex Court in State (Delhi Admn.) v. Pali Ram [AIR 1979 SC 14], in support of the contentions of the appellant. 14. The learned senior counsel Sri.S.V.Balakrishna Iyer, appearing for the contesting respondents met the contentions of the appellants, raising the following points. Firstly, it is submitted that there is nothing suspicious about the execution of the Will in favour of the plaintiffs in O.S.15/1998. Exts.A1 to A4 are the letters admittedly written by George Joseph. A reading of those letters would show that he has got special interest in the plaintiffs. He intended to give all his earnings, though the same may not be a huge amount, to the children of John Joseph, so that they may not be at the mercy of others. So, the execution of the Will, bequeathing his properties in favour of the plaintiffs, is a natural conduct from his part. MFA 766 & 926/99 & AS 586/99 14 There is nothing unusual or suspicious about it. The learned senior counsel also pointed out that regarding receipt of the photo copy of the Will, there is no conflicting version from the part of the plaintiffs or their witnesses. In the plaint the plaintiffs have not stated that photo copy of the Will was personally delivered to their mother. They only said that it was delivered. The said delivery can be postal delivery also. Further, regarding the possession of the original Will, initially, the plaintiffs were not sure whether it was in the hands of Peter Joseph. Later, on coming to know that all the belongings of the deceased George Joseph were removed from the room in the lodge where he was staying by Peter Joseph and the Will also must have fallen into his hands, they filed an I.A before the trial court, praying for a direction to him to produce the original of the Will. So, there is no inconsistency or lack of clarity in their stand regarding the original of the Will. The learned senior counsel also pointed out that the husband of PW1 joined the application for legal heirship certificate submitted before the Tahsildar, without knowing that the arrears of service benefits remaining unpaid would be covered by the Will. He further pointed out that when a Will is executed disinheriting the natural legal heirs, such persons or their relatives are not taken into confidence. So, there is nothing unusual about calling PW2 from Kottayam, who was interested in the children, to come MFA 766 & 926/99 & AS 586/99 15 and witness the execution of the Will. It is submitted that admittedly the deceased had opened a bank account in the name of the 1st plaintiff at Thiruvananthapuram and amounts were being deposited in it from time to time. According to the plaintiffs, it was the rent he got from the building owned by him at Thiruvananthapuram. The rent from the said building was set apart for the benefit of the children. The learned senior counsel also submitted that the 1st plaintiff Rani Joseph was the nominee in the fixed deposit receipts with the State Bank of Travancore. The requirement of law that at least one attestor should be examined to prove the execution of the Will has been satisfied in this case. Mr.Velappan Nair was not examined because he was laid up at the time when summons from the court was served on him. So, the execution of the document is properly proved, it is submitted. All the conditions under Section 65(a) of the Indian Evidence Act for adducing secondary evidence have been satisfied in this case. The learned senior counsel pointed out that forging of a holograph Will is inherently improbable because it is very difficult to imitate the handwriting of the testator. If a Will is to be forged, normally, the services of a scribe will be pressed into service and the signature of the testator will be forged. In that case there will be no difficulty to produce the original of the forged document. He further pointed out that all the objections taken by the MFA 766 & 926/99 & AS 586/99 16 defendants before the trial court were considered and rightly rejected. The learned senior counsel took us through the relevant portions of the judgment under appeal. He also relied on the decisions reported in Thiruvengada Pillai v. Navaneethammal [2008(2) KLT 267 (SC)] and Janki Narayan Bhoir v. Narayan Namdeo Kadam [(2003)2 SCC 91], in support of his submissions. 15. Having regard to the facts of the case, we feel that, essentially, the question to be decided in these appeals, concerning the execution of the Will, is about the correctness of a finding of fact. The decisions and authorities cited by both sides lay down the general principles. In the light of those principles, it has to be examined whether the court below has rightly found on the existence of the Will executed by late George Joseph and whether the conditions are correctly found to be present for admission of secondary evidence under Section 65(a) of the Evidence Act. 16. Firstly, we will consider regarding the correctness of the finding of