IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 AS.No. 418 of 2002() -------------------- OS.188/1992 of I ADDL.SUB COURT, KOLLAM .................... APPELLANT(S): PLAINTIFFS 1 TO 3 & 5 TO 9: ------------------------------------------------------------- 1. N.THULASEEDHARAN, AGED 42, SON OF JANAMA, DRIVER AND RESIDING AT THADATHIL PADINJATTATHIL, KULATHOOKONAM, CHIRAKARA P.O. KALLUVATHUKKAL. 2. AMBUJAKSHI, AGED 48 D/O.PARVATHI, HOUSE HOLD AFFAIRS RESIDING AT THADATHIL PADINJATTATHIL, KULATHOOKONAM CHIRAKARA P.O., KALLUVATHUKKAL. 3. CHANDRAMATHI, AGED 56 D/O.PARVATHI, HOUSE HOLD AFFAIRS, RESIDING AT CHARUVILA, PUTHEN VEEDU, VARINJAM, KALLUVATHUKKAL P.O. 4. K.THANKAMMA, AGED 68, D/O.KALYANI, RESIDING AT PLAVILA VEEDU, ALENCHERRY, EROOR P.O. KOLLAM. 5. PURUSHOTHAMAN, AGED 55, S/O.KALYANI, VENGAVILA VEEDU, ALENCHERRY, YEROOR P.O. 6. K.PARUKUTTY, AGED 65 RESIDING AT CHARUVILA PUTHEN VEEDU, YEROOR P.O. 7. R.CHANDRAMATHY, AGED 55, D/O.KALYANI, RESIDING AT KOCHUPUTHAN VEEDU, YEROOR P.O. 8. K.SUBHADRA AGED 45, D/O.KALYANI, RESIDING AT SHEELA VILASAM, YEROOR PO. BY ADV. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE SRI.K.VINODKUMAR RESPONDENT(S): DEFEDTS 1 TO 8 & 4TH PLTFF ------------------------------------------------------------------ 1. SASIDHARAN AGED 48, S/O.JANAMMA, RESIDING AT AJI VILAS KULATHOOKONAM, CHIRAKKARA P.O., KALLUVATHUKKAL. (DIED) 2. AJITHA, AGED 21, D/O.SASIDHARAN STUDENT RESIDING AT AJI VILAS KULATHOOKONAM, CHIRAKKARA P.O. KALLUVATHUKKAL. 3. ANILKUMAR, AGED 18 S/O.SASIDHARAN, RESIDING AT AJI VILAS, KULATHOOKONAM, CHIRAKKARA P.O., KALLUVATHUKKAL. (NAME CORRECTED) 4. MAHESWARI, AGED 34 D/O.JANAMMA HOUSE HOLD AFFAIRS, RESIDING AT THADATHIL VEEDU, PAMPURAM, KALLUVATHUKKAL P.O. 5. K.SADANANDAN, AGED 52 S/O.PARVATHI, RESIDING AT VILAYIL VEEDU, VETTIMOOKONAM, THOTTACKKA P.O., KALLAMBALAM. 6. SAHADEVAN, AGED 55, S/O.PARVATHI, RESIDING AT VARAMBITTUVILA VEED, KALAKODE P.O. PARAVOOR. 7. P.SUDAMMA,AGED 38, D/O.CHANDRAMATHI (3RD PLAINTIFF) HOUSEHOLD AFFAIRS, AND RESIDING THADATHIL PADINJATTATHIL KULATHOOKONAM, CHIRAKKARA P.O., KALLUVATHUKKAL. 8. SUSEELAN, AGED 24, S/O.AMBUJAKSHI, RESIDING AT THADATHIL PADINJATTATHIL, KULATHOOKONAM CHIRAKKARA P.O., KALLUVATHUKKAL. 9. SREEDHARAN, AGED 71, S/O.KALYANI, RESIDING AT VADAKKEVILA PUTHAN VEEDU, ALENCHERI, EROOR P.O.KOLLAM. (DELETED) ADDL. R10 & R11 IMPLEADED. R10. SMT. VIMALA, AJI VILASAM, KULATHUKONAM, CHIRAKARA P.O., KALLUVATHUKAL, KOLLAM. R11. ANILKUMAR, AJI VILASAM, KUTHATHUKONAM, CHIRAKARA P.O., KALLUVATHUKAL, KOLLAM. LEGAL HEIRS OF THE DECASED 1ST RESPONDENT ARE IMPLEADED AS ADDL. R10 & R11 AS PER ORDER DT. 16.2.2010 IN I.A. 2434/2008. THE NAME OF THE THIRD RESPONDENT IS CORRECTED AS 'AJITHKUMAR' AND THE NAME OF THE 9TH RESPONDENT IS DELETED FROM THE ARRAY OF PARTIES AS PER ORDER IN C.M.P.43/03 DTD. 14.1.2003. IT IS RECORDED THAT RESPONDENTS 2 AND 3 IN THE PARTY ARRAY (NAMELY AJITHA AND AJITHKUMAR ARE THE LEGAL HEIRS OF THE DECEASED 1ST RESPONDENT AS PER ORDER DTD. 20.6.2008 IN I.A. NO.2435/08. ADV. SRI.T.H.ABDUL AZEEZ FOR R1 & R2, R10-11 SRI.P.RAJEEV KUMAR FOR R1 & R2, R10-11 SMT.ZEENA.K.S FOR R1&2 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 03/11/2011, THE COURT ON 19.11.2011 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. No. 418 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of November, 2011. JUDGMENT The plaintiffs in O.S. 188 of 1992 before the Sub Court, Kollam, who were non-suited by the court below are the appellants. 2. Fortunately, there is not much dispute regarding the relationship between the parties and also regarding the facts of the case. Suffice to say that the plaintiffs and defendants are grandchildren and great grandchildren of Krishnan and Neelamma. Krishnan and Nelamma had five children, namely, Padmanabhan, Kochuraman, Kalyani, Parvathi, Janamma and Gangadharan. Gangadharan, who had gone abroad, amassed wealth both movable and immovable. The plaintiffs along with the defendants claimed to be the successors-in-interest of Gangadharan. The allegation in the plaint is that in 1990 Gangadharan returned home sick and thereafter he was A.S.418/2002. 2 bed ridden. It is alleged that the first defendant, who is a powerful politician prevented others from visiting Gangadharan, who was ailing. He managed to get a Will signed by Gangadharan, who had no testamentary capacity at the relevant time. The Will so obtained has no legal value. On the basis that the Will is invalid, they prayed for partition of the suit properties. 3. Defendants 1 to 3 filed a joint written statement. They disputed that there was any amount in the Bank account shown as C schedule to the plaint. The allegation that Gangadharan was sick and incapacitated was disputed. The Will executed by Gangadharan was with full consciousness and awareness and he had sufficient testamentary capacity to execute the document. The Will is also a registered one. Allegations to the contrary are denied. It is pointed out that the relationship between Gangadharan and the first plaintiff was far from cordial because the first plaintiff had instituted a suit against Gangadharan. After the death of Gangadharan, the legatees A.S.418/2002. 3 have taken possession of the respective properties and enjoying the same. Pointing out that the plaintiffs have no manner of right over the suit property, they prayed for a dismissal of the suit. 4. On the above pleadings, issues were raised. The evidence consists of the testimony of P.Ws.1 to 3 and documents marked as Exts.A1 to A7 from the side of the plaintiffs. The contesting defendants had D.Ws. 1 to 5 examined and Exts.B1 and B2 marked. The trial court after an elaborate consideration of the evidence came to the conclusion that the first defendant had succeeded in establishing that Ext.A2 Will dated 4.2.1992 was valid and was properly executed by late Gangadharan. Accordingly, the suit was dismissed. 5. The only question that arises for consideration is whether the finding of the court below that Ext.A2 Will is a genuine document can be sustained. 6. Learned counsel appearing for the appellants vehemently contended that the court below was not justified A.S.418/2002. 4 in upholding the Will. Apart from the fact that there was convincing evidence to the effect that the testator was incapacitated at the relevant time, the glaring inconsistencies in the evidence of D.Ws.2 to 5 have been omitted to be noticed by the court below which would show that there is considerable suspicion regarding the execution of the Will. Learned counsel emphasized that the entire burden is on the propounder of the Will to prove the due execution and attestation of the Will. In the facts and circumstances of this case, there are several suspicious circumstances surrounding the execution of the Will and therefore the propounder has an added burden to remove the suspicious circumstances and to establish that the document is a genuine one. In support of his contention, learned counsel relied on the decisions reported in Girja Datt v. Gangotri Datt (AIR 1955 SC 346), H.Venkatachala Iyengar v. Thimmajamma (AIR 1959 SC 443) , Jaswant Kaur v. Amrit Kaur ((1977) 1 SCC 369), Indu Bala v. Manindra Chandra (AIR 1982 SC 133), Guro A.S.418/2002. 5 v. Atma Singh ((1992) 2 SCC 507), Baljinder Singh v. Rattan Singh ((2008) 6 SCC 785), Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria ((2008) 15 SCC 365) , Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh ((2009) 4 SCC 780) and S.R.Srinivasa v. S.Padmavathamma ((2010) 5 SCC 274). 7. Learned counsel appearing for the appellants pointed out that if one goes through the above decisions and apply the principles laid down therein to the facts of this case, it can be very easily found that the Will has not been proved. Evidence regarding the execution of the Will, its attestation will be found wanting if the principles of the above decisions are applied to the facts of the case. These vital aspects have been omitted to be noticed by the court below and the explanation offered regarding the inconsistencies in the evidence of witnesses examined on behalf of the propounder has been lightly brushed aside by the lower court. In short, learned counsel pointed out that the finding of the court below cannot be sustained. A.S.418/2002. 6 8. Per contra, learned counsel appearing for the contesting respondents pointed out that the court below has meticulously analysed the evidence in the case and has come to the conclusion that Ext.A2 Will is a genuine document. Regarding the incongruities pointed out in the evidence of the witnesses examined on behalf of the defendants, the court below has given convincing reasons as to why those incongruities cannot be taken as grounds to hold against the Will. The evidence is sufficient, according to learned counsel, to show that Ext.A2 was duly executed by Gangadharan and attested by the witnesses. The scribe, the witnesses and the Sub Registrar, who had registered the document have been examined and their evidence have been accepted by the court below. Learned counsel also pointed out that there is no evidence to show that the propounder had taken active part in the execution of the Will and Ext.A2 will clearly show that there has been a distribution of the properties by the testator to various legatees, who are his successors in interest. Though A.S.418/2002. 7 registration by itself may not be a ground to uphold the Will, it is certainly a factor which goes in favour of the propounder when the execution is proved. Learned counsel went on to point out that going by the principles laid down in the decisions referred to above, it can be seen that the Will in this case is duly proved. Therefore, it is contended that there is no merit in this appeal and it is only to be dismissed. 9. It can be seen from the evidence on record that at the relevant time, Gangadharan was not keeping very good health and was not in a position to move about. This would be clear from the evidence of P.W.3, the doctor, who was attending to Gangadharan. The evidence of P.W.3 is highlighted by the learned counsel for the appellants to show that it is obvious from his evidence that Gangadharan was both mentally and physically incapacitated and it was virtually impossible for him to know the nature of the disposition being made by him and if that be so, it could not be said that the Will has been executed by Gangadharan. A.S.418/2002. 8 10. One may at once refer to the evidence of P.W.3. The evidence of P.W.3 is to the effect that he has been treating Gangadharan from 1.1.1991 onwards. Gangadharan died on 10.12.1991. Ext.A2 is dated 4.12.1991. According to P.W.3, Gangadharan was a paralytic and he could not move about. Right side of his body was completely affected. He would say that Gangadharan was unable to hold a pen at the relevant time. He says that the condition of Gangadharan was bad when he first met him on 1.1.1991. However, his evidence would indicate that there was slight improvement in the condition of Gangadharan when he visited P.W.3 on the second occasion. Ext. A7 is the certificate issued by him. 11. Before going further, it will be useful to understand the law relating to Wills. The relevant provision is Section 63 of the Indian Succession Act and it deals with the drawing up of a Will and Section 68 of the Indian Evidence Act, which deals with the proof of Wills. It will be useful to read those provisions. A.S.418/2002. 9 12. The law regarding proof of will is well settled. Section 63 of the Indian Succession Act deals with the drawing up of a will. It reads as follows: “63. Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare,or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:- (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his A.S.418/2002. 10 signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time,and no particular form of attestation shall be necessary.” 13. As regards the proof of will, one has to refer to Section 68 of the Indian Evidence Act, which reads as follows: “68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless A.S.418/2002. 11 its execution by the person by whom it purports to have been executed is specifically denied.” 14. Going by Section 63 of the Indian Succession Act the following things are required for a valid execution of the will: i) it must be in writing, ii) it must be duly signed by the testator and iii) it must be duly attested by atleast two witnesses. Going by the provision, it is necessary that the attesting witness should either see the testator sign the will or receive an acknowledgment from him about the signature in the will. It can also be seen that the attesting witnesses will have to sign in the presence of the testator. But it is not necessary that each attesting witness should see the other sign the document. 15. The word attestation is not defined either in the Indian Succession Act or in the Indian Evidence Act. However, the Transfer of Property Act defined the word 'attested', which reads as follows: “ “attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of A.S.418/2002. 12 whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.” 16. It is by now well settled that the initial burden to prove the due execution and attestation of the will is on the propounder. But the proof required is like as of any other document except that atleast one of the attesting witnesses will have to be examined. It is common knowledge that in such proceedings the court is called upon to decide a solemn question and since the testator is not available to give evidence regarding the will, the duty of the court becomes more onerous. Apart from proving the due execution and attestation of the will, if there are any A.S.418/2002. 13 suspicious circumstance surrounding the execution of the will, then the propounder has an added burden to remove those suspicious circumstances to the satisfaction of the court. Registration of the will may be one of the circumstances which may go in favour of the execution of the will. But that by itself has not been treated as sufficient to prove due execution of the will. The basic decision regarding proof of wills is the decision reported in Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443), wherein it was held as follows: “The party propounding a will or other wise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under S.67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss. 45 and 47 of the Act the A.S.418/2002. 14 opinions of experts and of persons acquainted with the handwriting of the persons concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S.63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. A.S.418/2002. 15 However, there is one important feature which distinguishes will from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the work cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. 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. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be A.S.418/2002. 16 justified in making a finding in favour of the propounder. In other words, the onus of the propounder can be taken to be discharged on proof of the essential facts just indicated.” 17. In the decision reported in Meenakshiammal v. Chandrasekharan (AIR 2005 SC 52) it was held as follows: “In the case of Madhukar D. Shende v. Tarabai Aba Shedage reported in (AIR 2002 SC 637), it has been held as follows:- "8. The requirement of proof of a Will is the same as any other document excepting that the evidence tendered in proof of a Will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the Court either believes that the Will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act A.S.418/2002. 17 upon the supposition that the Will was duly executed by the testator, then the factum of execution of Will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers. What was told by Baron Alderson to the Jury in R. v. Hodge, 1838, 2 Lewis CC 227 may be apposite to some extent - "The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected hole; and the more ingenuous the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete". The conscience of the Court has to be satisfied by the propounder of Will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a Will A.S.418/2002. 18 provided that there is something unnatural or suspicious about the Will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict - positive or negative. 9. It is well-settled that one who propounds a Will must establish the competence of the testator to make the Will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. The contestant opposing the Will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the Court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same. The factors, such as the Will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, A.S.418/2002. 19 assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a Will, the Court would not return a finding of 'not proved' merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a Will as against the person disputing the Will and the pleadings of the parties would be relevant and of significance." 18. In the decision reported in Niranjan Umeshchandran Joshi v. Mrudula Jyoti Rao (AIR 2007 SC 614) it was held as follows: “Section 63 of the Indian Evidence Act lays down the mode and manner in which the execution of an unprivileged Will is to be proved. Section 68 postulates the mode and manner in which proof of execution of document is required by law to be attested. It in unequivocal