IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 18TH AUGUST 2010 / 27TH SRAVANA 1932 AS.No. 426 of 1995(C) (O.S.899/1988 OF SUB COURT, THRISSUR) --------------------- APPELLANTS/PLAINTIFFS 1 & 3 TO 5: ----------------------------------------------------- 1. KOCHUMON, S/O. KRISHNAN. 2. RAJAN, S/O. KRISHNAN. 3. SAROJINI, D/O.KRISHNAN & W/O.KARUKAYIL VELAYUDHAN. 4. VILASINI, D/O.KRISHNAN AND W/O.VEEYATH PURUSHOTHAMAN. APPELLANTS ARE RESIDING AT VAYAMBARAMBIL, KODANNUR VILLAGE AND DESOM, THRISSUR TALUK. BY ADV. SRI.D.KRISHNA PRASAD RESPONDENTS/DEFENDANTS: ------------------------------------------- 1. DEVAYANI, W/O. VAYAMBARAMBIL KRISHNAN, RESIDING AT KODANNUR VILLAGE AND DESOM, THRISSUR TALUK. 2. SUSEELA, D/O.VAYAMBARAMBIL KRISHNAN, RESIDING AT KODANNUR VILLAGE AND DESOM, THRISSUR TALUK. 3. DEVAKI, D/O.VAYAMBARAMBIL KRISHNAN, RESIDING AT CHAKKALAPARAMBIL HOUSE, POST MANAKKODI, THRISSUR - 4. (DIED). 4. KALYANI, D/O.VAYAMBARAMBIL KRISHNAN, TEACHER, BLOCK NO.621/3980, NEW BAPUNAGAR, AHMEDABAD - 24. - 2 - AS426/95 5. THANKA, W/O.VAYAMBARAMBIL PARAMESWARAN, RESIDING AT KODANUR VILLAGE AND DESOM, THRISSUR TALUK. 6. BABU, S/O.VAYAMBARAMBIL PARAMESWARAN, RESIDING AT KODANNUR VILLAGE AND DESOM, THRISSUR TALUK. 7. SUBHASH, S/O.VAYAMBARAMBIL PARAMESWARAN, RESIDING AT KODANNUR VILLAGE AND DESOM, THRISSUR TALUK. 8. SHEEBA, D/O.VAYAMBARAMBIL PRAMESWARAN, RESIDING AT KODANNUR VILLAGE AND DESOM, THRISSUR TALUK. (THIRD RESPONDENT DIED. THE APPELLANTS ARE EXEMPTED FROM SUBSTITUTING THE LEGAL REPRESENTATIVES OF THE THIRD RESPONDENT, AS PER ORDER DT.7.7.2008 ON IA2671/2005). ADV. SRI.N.P.SAMUEL FOR R1 & R2. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 11/06/2010, THE COURT ON 18/08/2010 DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.3224/1995 IN A.S.426/1995 - DISMISSED. 18.8.2010. SD/- THOTTATHIL B.RADHAKRISHNAN,JUDGE. SD/- S.S.SATHEESACHANDRAN, JUDGE. - TRUE COPY- P.S.TO JUDGE. Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = A.S.No.426 of 1995-C = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 18th day of August, 2010. Judgment Thottathil B.Radhakrishnan, J . 1.The plaintiffs in a suit for partition are the appellants. They and defendants 3 and 4 are the children of Krishnan through Vallikutty. After Vallikutty's death, Krishnan and his sons entered into Ext.A1 partition whereby the assets inherited from Krishnan's father Ravunni were dealt with. Krishnan took a share and gave off the remaining, in shares, to his sons. The daughters were given the right to certain amounts for which charge was created on Krishnan's share. After that, Krishnan married the first defendant. The second defendant was born to them. Krishnan died on 20.10.1988. Plaintiffs sued for partition of Krishnan's estate on the plea that he died intestate. They pleaded that Krishnan left no AS426/95 -: 2 :- Will. They also pleaded that Krishnan had been sick from sometime in 1976, i.e., for about 12 years before his death; that defendants did not care for Krishnan and hence he was brought over to the first plaintiff's residence, from where he died. 2.Defendants 1 and 2 filed written statement admitting the relationship but denying the assertion of the plaintiffs that Krishnan had been sick from 1976. They propounded Ext.B5 registered Will dated 20.8.1977 and stated that the plaintiffs had, for quite long, been inimical to them. They denied the plaintiffs' allegation that Krishnan suffered from physical and mental ill-health. They pleaded that he was of sound mind and had good health till the beginning of July, 1988 and he was abducted from their residence by the first plaintiff, his brothers and their children at about 5.30 p.m. on 7.9.1988 and the first defendant had moved the Chief Judicial Magistrate for issue of search warrant. 3.Following the aforesaid defence, plaintiffs filed a replication stating that Krishnan lacked testamentary capacity and power of discretion and that he was not AS426/95 -: 3 :- in a mental state sufficient to execute a Will. They pleaded that he lacked memory and intelligence and that, from 1976 onwards, he was weak, bed-ridden and his memory was impaired. They also pleaded that late Krishnan had no necessity to execute such a Will and the alleged Will must be one falsely and fraudulently brought into existence by misrepresenting him. They pleaded that Krishnan did not tell the plaintiffs of any such Will and that the said Will is not a natural one, but is unconscionable and it is improbable that Krishnan would execute Will disinheriting the plaintiffs. 4. In our view, the learned Sub Judge quite rightly discussed, first in sequence, Issue No.3, as to the proof of Ext.B5 Will. Noticing the pleadings of the parties and recalling the judgments of the Apex Court in H.Venkatachala v. B.N.Thimmajamma, AIR 1959 SC 443 and Surendra Pal v. Saraswati, AIR 1974 SC 1999, the learned Judge considered the evidence of D.W.1, the first defendant, widow of the testator and a legatee under the Will and also the evidence of D.Ws.2 to 4. The court below heard the testimony of the first plaintiff as P.W.1 and the first defendant AS426/95 -: 4 :- as D.W.1. It relied on the testimony of D.Ws.2 and 3 treating them as attesting witnesses and D.W.4, the then registering authority before whom Ext.B5 Will was registered. The court below upheld the Will as duly proved in terms of law and adverted to the entire materials and held that it cannot be treated as either unconscionable or artificial and that there were no suspicious circumstances surviving to be explained in relation to the execution of that registered Will which was proved to have been executed more than 10 years before the demise of the testator. Resultantly, the suit was dismissed. 5. On behalf of the appealing plaintiffs, it was argued that the court below erred in treating D.W.3 as an attesting witness and that the evidence of D.W.2 does not appear to be reliable and trust-worthy. He pointed out that even going by the contents of Ext.B5, D.W.3 is not one of the attestors thereto. He argued that then, the evidence of D.W.2 was insufficient to prove Ext.B5 as a Will in as much as he does not speak of any other person having seen the testator executing the Will. He argued that when the attesting witness who has been examined, had not AS426/95 -: 5 :- stated that he has seen the other witness attesting the Will in his presence, the Will is to be treated as not proved and that when only one attesting witness is examined, he should be in a position to prove the execution of the Will in terms of the provisions of Section 63 of the Succession Act. He argued that requirements in terms of Section 63 of the Succession Act and Section 68 of the Evidence Act would not be satisfied without demonstrating that two persons had signed as attestors and such attestation is proved through the attesting witnesses. Referring to the evidence on record, it was argued that the testimonies of D.Ws.2 and 3 are insufficient to uphold Ext.B5 and that there was no reason for their father to disinherit the plaintiffs. Reference was made to the decisions of the Apex Court in Janki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761 and Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria and Ors. , 2009 (1) KLT Suppl.808 . 6.The learned counsel for the contesting respondents 1 and 2 supported the impugned findings and decree. 7.On the point of law, the court below rightly noted AS426/95 -: 6 :- that it is the duty of the propounder of the Will to show by satisfactory evidence that the Will was signed by the testator and that the testator was of a sound and disposing state of mind and also that he understood the nature and the effect of the disposition and also that he had put his signature to the document of his own will. The evidence was examined by the court below in the light of this principle. 8. On to appreciation of evidence, at the outset, we remind ourselves that the date of Ext.B5 Will is 3.10.1978. It is a registered document. The testator died more than ten years thereafter, on 20.10.1988. The witnesses were examined by the court below on 28th March, 1994, more than 15 years of the alleged execution of Ext. B5 Will. 9.D.W.1, the widow stated that her husband was of sound mind and had executed the Will in question after understanding its contents. That at the relevant time, she cohabited with him is not in dispute. Nothing is brought out in cross-examination, to discredit her. AS426/95 -: 7 :- 10.D.W.2, the scribe, is shown in Ext. B5 to have attested that Will. A person of 40 years of experience as a scribe, the court below found that he had spoken of having known the testator earlier and that materials for scribing the Will were furnished by the testator who had good memory, ability and knowledge. D.W.2 had sworn that he had seen the testator signing the Will and that he had also signed the Will as a witness. The Will was marked through him as Ext.B5. Even in cross examination, he said that Krishnan had, even earlier, got documents prepared through him and that even an earlier Will was executed by Krishnan. 11.Going by Ext.B5, one Mohanan was the second attestor to it. He was not examined. 12.D.W.3 stated that he signed on the Will in the office of the Sub Registrar. His testimony to that effect is not seriously challenged in cross examination. 13.D.W.4 was the registering officer. By the time she AS426/95 -: 8 :- was examined, she had retired from service. She stated that at the relevant time, she was the Registrar and it was she who registered Ext.B5. She stated that Krishnan had vouchsafed to her, of the document having been read over to him. She could not, however, assert the identity of Krishnan. Obviously, she could not have. She was a Government servant in office and cannot be expected to speak as to any personal acquaintance with those coming before her for registration of documents. The testator was identified to her by Davis (D.W.3) and Raman. 14.The registering officer acts on the basis of parties being identified before that authority in terms of law. Section 34(3) of the Registration Act requires that on presentation of the document, after satisfying the formalities, the registering officer shall, among other things, (a) enquire whether or not such document was executed by the persons by whom it purports to have been executed and (b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document. D.W.4 is not challenged in her cross examination as having not carried out such official AS426/95 -: 9 :- acts. Obviously, therefore, it has to be presumed that the registration was properly done after ascertaining the identity of the person who appeared before D.W.4 as the testator executing Ext.B5 Will and testator vouchsafing the execution of the Will and of its contents having been read over to him. This presumption, available in terms of Illustration (e) to Section 114 of the Evidence Act, is not rebutted in any manner. In this context, it is worthwhile to note that though there is a suggestion of impersonation put to D.W.4 in cross examination, no effort at all is taken to obtain the examination of the materials regarding the identity of the testator as available in the books and registers maintained by the Registrar in terms of the Registration Act and the Rules framed and issued under that Act. We may profitably refer to the decision of the Apex Court in Pentakota Satyanarayana v. Pentakota Seetharatnam, AIR 2005 SC 4362 laying down that signatures of registering officer and of identifying witnesses affixed to registration endorsement and the endorsement of the Registrar that executant has acknowledged execution before him amounts to attestation. See also Varghese v. Omen, AS426/95 -: 10 :- 1994(1) ILR Kerala 372. This principle is clearly discernable from Section 63(c) of the Succession Act since a person who has received the acknowledgment of the execution of the Will by the testator can also act as an attestor. In this view of the matter, we do find that the evidence on record meets the bench marks noticed by the Apex Court in Janki Narayan Bhoir and Lalitaben Jayantilal Popat(supra). 15.Having regard to the registration of the document coupled with the testimony of D.W.4, the registering authority; the testimony of D.W.3, the witness who identified the testator before the Sub Registrar and the testimony of D.W.2, one among the attesting witnesses, we uphold the finding of the court below that due execution of Ext.B5 Will is duly proved. 16.We find no shred of legal evidence to the effect that at any time before 1988, the testator had been sick. In fact, Ext.B4 is the passbook issued by the State Bank of Travancore, Agricultural Development Branch, Thrissur which shows that in 1981 and 1982, there were transactions in the account maintained by the testator with that bank. That was an agricultural AS426/95 -: 11 :- cash credit account. It shows that subsidies were collected and remittances and withdrawals have been made. The story attempted to be built up by the plaintiffs in the plaint that from some time in 1976, the testator was sick is not supported by any material and it has to be reasonably taken that the same was a baseless plea, being aware of the Will having been executed in 1977. 17.The testimony of P.W.1, the first plaintiff denying the signature of his father does not merit appreciation. He denies the signatures of his sisters also. He is a party to Ext.A1, the partition deed. In terms of that partition deed, the sisters had a charge over the property for certain sums of money. Ext.B1 is the receipt issued by the daughters of Krishnan evidencing the receipt of the amounts due to them under Ext.A1. 18.The court below, after adverting to the evidence, categorically found that there is no suspicious circumstance touching Ext.B5, on ground that it is unconscionable or on ground that the plaintiffs have been disinherited. Assimilating the evidence, the AS426/95 -: 12 :- court below noticed the nature of allotments made in Ext.A1 and found that all that the testator kept for himself from the assets of his father Ravunni was what is item no.6 in Ext.A1. It was noted that whatever was available from that after his dealings, has been given along with his own acquisitions to defendants 1 and 2, that is, his second wife and daughter through her. 19.In this context, we may notice the evidence of P.W.1 who says that the children of Krishnan through his first wife, particularly the younger ones, were residing with Krishnan and the first defendant after their marriage, and they started moving out only as they grew up. Even P.W.1 moved out from the family house only that way. 20.Exts.B2 and B3, FIR and Charge Sheet of the year 1977 would show that the relationship between Krishnan's children through his first wife and his second wife and the daughter through her was strained. 21.One strong circumstance which has been found by the AS426/95 -: 13 :- court below in favour of the testamentary capacity and against the assertion of the plaintiffs that Krishnan was unwell in 1976 was that even in the afore-noted criminal case, Krishnan was witness no.9 in the charge sheet. We are unable to dissuade ourselves from concurring with that view. We have to, necessarily, assume that in the nature of common course of official acts, Krishnan would have been questioned by the police and his statement recorded under Section 161 Cr.P.C. This only strengthens our view that there was no reason at all to doubt his mental capacity, much less testamentary capacity, at the relevant point of time. The said incident would have, obviously, prompted the testator to insulate his second wife and the children through her, from the onslaughts of his children through the first wife. 22.On the basis of the materials on record, we do not find our way to interfere with the findings of the court below that Ext.B5 is a validly executed Will and that its execution has been duly proved. The finding that the execution of the Will is not surrounded by any suspicious circumstance which is AS426/95 -: 14 :- left unexplained does not warrant interference. Hence, the dismissal of the suit does not merit interference and the appeal is dismissed. No costs. Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, Judge. Sha/2607 AS426/95 -: 15 :- Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = A.S.426 of 1995-C = = = = = = = = = = = = = = = = Judgment 18th August, 2010.