IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 AS.No. 398 of 2001() ------------------------------ OS.258/1994 of SUB COURT,ATTINGAL .................... APPELLANT(S): (ADDL. 2ND PLAINTIFF) ----------------------------------------------------------- DEVAKY , D/O. KUNJI, KUNNUVILA VEEDU, PULLOORKUNU, KALLAMBALAM, ATHOATTAKKADU DESOM, KARAVARAM VILLAGE. BY ADVS. SRI.M.R.ANANDAKUTTAN SRI.R.T.PRADEEP RESPONDENT(S): (DEFENDANTS ADDL. 3RD DEFENDANT AND ADDL. PLAINTIFFS) ----------------------------------------------------------------------------------------------------------------------- 1. SYAMALA , D/O. KUNJU RAGHAVAN, RESIDING AT BHASKAR ASADANAM, KARUNILAKODU, VARKALA VILLAGE. 2. SUNIL SON OF BHASKARAN,RESIDING AT DO. DO. 3. GOVINDAN PURUSHOTHAMAN,VILAYIL VEEDU, PANAYARA DESOM,CHEMMARUTHY VILLAGE. 4. KAWSALLYA VASANTH,DEEPA VILASOM, PALAYAMKUNNU,AYIROOR VILLAGE. 5. VELAYUDHAN ASOKAN, RESIDING AT ALAN VIEW, PANAYARA DESOM, CHEMMARUTHY VILLAGE. 6. VELAYUDHAN PRADEEP, RESIDING AT DO. DO. 7. KAMAPALAM SASANKAN, PALAMOOTTIL VEEDU, MUTTAPPALAM DESOM, CHEMMARUTHY VILLAGE. 8. KAMAPALAN SUGHATAH,RESIDING AT PALAMOOTTIL VEEDU, MUTTAPPALAM DESOM,CHERMMARUTHY VILLAGE. R1 & R2 BY ADV. SRI.P.R.VENKIDESH R4 BY SRI.PRAVEEN VYASAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 27/10/2010 , THE COURT ON THE SAME DAT DELIVERED THE FOLLOWING: ORDER ON CMP. NO.2843/2001 IN AS. NO.398/2001 DISMISSED 27/10/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... A.S.NO.398 OF 2001 ............................................. Dated this the 27th day of October, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate judges' Court, Attingal in O.S.No.258/1994. The suit is one for partition. The brief facts necessary for the disposal of the appeal are stated as follows: The property described in the plaint schedule belonged to one Bhaskaran. Bhaskaran died on 10.4.1993 leaving behind his wife and children and also the mother who was the first plaintiff. It is the case of the original plaintiff that as one of the legal representatives, she is entitled to get one out of three shares of the property and therefore, she had sought for partition. During the pendency of the suit, she died and supplemental plaintiffs were impleaded. Subsequently supplemental plaintiffs 3 to 7 were transposed as supplemental defendants 4 to 8 in the suit. The second plaintiff would contend that Bhaskaran's right on the death of her mother had devolved upon her by virtue of a Will - : 2 : A.S.NO.398 OF 2001 Ext.A2 and therefore she is entitled to inherit the right of her mother as per the Will. 2. On the other hand, the contesting defendants, who are the wife and children of deceased Bhaskaran, would contend that on 19.3.1993 Bhaskaran on his own will and mind had executed a Will thereby bequeathing the entire properties in favour of the wife and children and therefore the mother did not get any right over the property and so the question of partition does not arise. It is also contended that the Will alleged to be executed by the original plaintiff is also not correct and it is only a creation by the second plaintiff to get the property. Supplemental defendants 4 to 8 had challenged the correctness of the Will projected by the second plaintiff. They have also submitted that the property had devolved upon the mother and as the legal representatives, they are entitled to get the property. 3. The trial court on an appreciation of the materials available found that the Will alleged to be executed by Bhaskaran was valid and genuine one and hence held that mother is not entitled to any property. The court also held : 3 : A.S.NO.398 OF 2001 that the Will alleged to be executed by the mother is not valid and genuine and therefore that contention was negatived. It is against that decision, the second plaintiff has come up in appeal before this Court. 4. Now the whole question revolves upon the correctness of the Will projected by the parties. If Ext.B1 Will alleged to be executed by Bhaskaran in favour of wife and children is valid and genuine, then the original plaintiff is not entitled to get any right over the property. In case that Will is found to be not genuine, then the original plaintiff will be entitled to one out of three shares. Since she had died during the pendency of the suit who are her legal representatives will be the next question to be decided. If the Will projected by the second plaintiff is accepted and if it is found that Ext.B1 Will is not valid and genuine, then the second plaintiff will be entitled to get the entire one third right of her mother. If Ext.B1 is found to be invalid and the Will projected by the second plaintiff is found to be not genuine, then the children of the predeceased son may be entitled to get right of that share. This is the position of : 4 : A.S.NO.398 OF 2001 law. In the decision reported in H. Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443) it is reported that when a Will is projected, the propounder of the Will has to prove the same. If there are suspicious circumstances surroundings the execution of the Will, that has to be removed by the propounder. The Hon'ble Apex Court also made it very clear that as the person who had executed the Will is not available in the world, the Court is sitting in the arm chair of the testator and therefore it has got the responsibility in finding out the truth. Under Section 68 of the Indian Evidence Act, Will has to be proved by examination of attesting witnesses at least one. Under Section 63 of the Indian Succession Act, attestation has to be proved by the methods stated therein. The executant as well as the witnesses have to see each other signing. Over and above all these, sound state of mind and capacity to understand consequences of the action are also the relevant criteria to uphold validity of the Will. As far as this case is concerned, Ext.B1 is an unregistered Will. I am conscious of the fact that there is no mandate that a Will : 5 : A.S.NO.398 OF 2001 should be registered. But here is a case where the Will is alleged to be executed on 19.3.1993 and the person gets admitted in the hospital on 27.3.1993 and breath his last on 10.4.1993. Unfortunately neither of the parties did take any care to produce any document to make the court understand regarding the ailment of the executant namely testator. So it is a matter that has to be looked into. Similarly when certain amount of suspicious circumstances are pointed out, it is always better to dispel from the mind of the court so that the court can approach the subject in the correct perspective. Unfortunately when an attempt was made by the second plaintiff by virtue of I.A.No.99/2000 to send the signature in the disputed Will for comparison, most probably in order to see that a list case is not removed, the learned Subordinate Judge dismissed that application and took the view that the court is competent to compare the signature under Section 73 of the Indian Evidence Act. The Supreme Court has cautioned that comparison of signature by the court is a hazardous task and the court should not venture to do it for the reason : 6 : A.S.NO.398 OF 2001 that it is not an expert on that aspect. But the court made be very clear that the court has the power to compare the signature but such a comparison can be only used for the purpose of corroborating the evidence, if available. 5. Here admittedly we are having Ext.A1 document. It contains the signature of Bhaskaran that is admitted. It contains the signature and thump impression of deceased first plaintiff Kunji. When that admitted signature is available before the court and there are circumstances pointed out it is always desirable to have a scientific expert's opinion so that the court will be in a position to have that benefit also while considering the case along with the other evidence available in this case. Similarly parties also should produce materials before the Court to show regarding the ailment if any suffered by some of the parties. It is true that the burden is always on the propounder to do that. Even if the propounder refuses to do that, the court cannot jump to the conclusion that the person was ailing from a particular ailment. But either side can be permitted to summon documents. I had also been taken to the evidence : 7 : A.S.NO.398 OF 2001 tendered in this matter. I am not commending upon that since the matter has to go back and if I commend in favour or adverse, it may affect one of the parties. So I feel that this is a fit case where the parties should be directed to produce better evidence so as to give a judgment which will satisfy the conscience of the court. 6. Therefore the judgment and decree under challenge are set aside and the mater is remitted back to the trial court for the following: i. The plaintiff is directed to file a fresh application requesting the court to send the signature of Bhaskaran as well as the signature and thump impression of the deceased first plaintiff for comparison by an expert. The admitted signature in Ext.A1 and if there are any other admitted signatures, that also can be sent for comparison. ii. Parties are also directed to let in evidence regarding the alleged ailment of Bhaskaran and that of the deceased first plaintiff. For that they can produce documentary as well as oral evidence in support of their respective contentions. Iii. After the receipt of expert's opinion, parties may be : 8 : A.S.NO.398 OF 2001 given a chance to file objections, if any, before proceeding further in the matter. It is made clear that the court below is at free to analyse the entire materials afresh and arrive at a decision in accordance with law. Parties are directed to appear before the trial court on 14.12.2010. Registry is directed to send back the records immediately. M.N. KRISHNAN, JUDGE. cl : 9 : A.S.NO.398 OF 2001 M.N. KRISHNAN, J. ........................................... A.S.NO.398 OF 2001 ............................................. 27th day of October, 2010. J U D G M E N T