IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 MFA.No. 167 of 2005 --------------------------- OS.3/2003 of DISTRICT COURT, KOTTAYAM ................................... APPELLANT(S): DEFENDANTS 2 & 3: --------------------------------------------------- 1. P.M. KRISHNANKUTTY, S/O. ACHUTHAN MADAVAN, AGED 57 YEARS, PUTHIYATHU, PAMBADY, KOTTAYAM DISTRICT. 2. P.M. GOPALAN, S/O. ACHUTHAN MADHAVAN, AGED 53 YEARS, PUTHIYATHU, PAMBADY, KOTTAYAM DISTRICT. BY ADV. SRI.T.MADHU RESPONDENT(S): PLAINTIFFS/DEFENDANTS 1, 4 & 5: --------------------------------------------------------------------------- 1. K.M. VASUDEVAN, S/O. ACHUTHAN MADHAVAN, AGED 45 YEARS, PEZHUMATTOM, KURIYANOOKUNNEL PAMBADY KARA, PAMBADY VILLAGE, KOTTAYAM DISTRICT. 2. LAKSHMI, D/O. KOCHAYYAPPAN, AGED 85 YEARS, PEZHAMATTOM, KURIYANOOKUNNEL, PAMBADY KARA, PAMBADY VILLAGE, KOTTAYAM DISTRICT. 3. K.M. GOVINDANKUTTY, S/O. ACHUTHAN MADAVAN, AGED 53 YEARS, PAZHAMATTOM KURIYANOOKUNNEL, PAMBADY KARA, PAMBADY VILLAGE, KOTTAYAM DISTRICT. 4. K.M. RETNAMMA, D/O. LAKSHMI, AGED 42 YEARS, KUMBALASSERIYIL, PAKKIL P.O., PALLOM, KOTTAYAM DISTRICT. ADV. SRI.V.G.ARUN, SRI.T.R.HARIKUMAR FOR R1 & R2 THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 15/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. ........................................... M.F.A.NO.167 OF 2005 ............................................. Dated this the 15th day of September, 2009 J U D G M E N T This is an appeal preferred against the judgment of the District Judge, Kottayam in O.S.No.3/2003. It is a contentious suit relating to the letters of administration with a copy of the Will annexed to the same. It is the case of the plaintiff in the suit that the father had executed a Will on 5.2.1990 and he was in a perfect state of mind and health and by virtue of the same, had bequeathed the property in favour of the plaintiff and therefore he had applied for the letters of administration. The contesting defendants would contend that the Will is a fabricated document and that the signature in the Will is not that of the father and therefore the plaintiff is not entitled to any letters of administration. After considering the entire materials on record, the court below held that Ext.A1 is a genuine document and the plaintiff is entitled to get letters of administration. It is against that decision, the contesting defendants have come up in appeal. : 2 : M.F.A.NO.167 OF 2005 2. The point that arises for determination in the appeal whether the finding of the court below that Ext.A1 Will is valid and genuine is liable to be interfered with . 3. Point: Before going into the facts of the case, it is desirable to understand the principles of law to be followed in cases relating to Wills. As early as in 1959, the Hon'ble Apex Court had given the guidelines to be followed in such cases. In the decision reported in H. Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443). The Supreme Court held that while considering the genuineness of the Will the court has its own duty specifically entrusted to it for the reason that the maker of the Will is not available and that the court has to sit in his arm chair and decide the matter. It is also held that mere execution of the Will is not sufficient but the propounder has to satisfy the conscience of the court that there was no suspicious circumstance surrounding the execution of the Will and that the testator was in a perferct state of mind and health at the time of execution of the : 3 : M.F.A.NO.167 OF 2005 Will. 4. Now turning to the facts of the case. Here PW1 is the propounder. PW2 is the mother of the propounder and PWs 3 and 4 are attesting witnesses to the document. The Will is executed by a person called Achuthan Madhavan and he died on 20.5.1991 at the age of 74 years. It is clearly deposed by PW2 -the mother of the propounder and the wife of the deceased that the father had executed the Will in favour of the son and he was totally in a physically fit state of health and mind to execute the Will. As per the terms of the Will, 19 cents with a building therein was given to the plaintiff. 10 cents was given to the 4th defendant. There is also a condition that if the plaintiff is able to procure 10 cents of land elsewhere, he can give it to the 4th defendant and enjoy this 10 cents of property. 5. Pw3 is an attesting witness. He had deposed about the execution of the Will and that he had signed in the Will as a witness. He also speaks about the fact that the testator had seen him while signing the Will and vice versa. PW4 - the second attesting witness also had deposed about : 4 : M.F.A.NO.167 OF 2005 the said fact and further that the attestor as well the testator had signed the Will and they had mutally seen each other signing the will. The court below also considered about the minor inconsistency here and there brought out in the evidence of PWs 3 and 4 and had also opined that the Will was executed long back and the litigation had come only subsequently and therefore, the minor discrepancy and inconsistency will only add genuiness in their evidence and not otherwise. So, here is a case where the propounder, the wife of the testator and the attesting witnesses had clearly and cogently given evidence. It is also the well settled proposition of law that just because of the father is living with one son, it does not lead to the conclusion that the said son was in a position to dominate the Will of the father so as to defeat the interest of others. One has to prove something more than that. So I find that the learned District Judge had considered the material aspects in the correct perspective and arrived at the proper decision and I do not want to interfere with that. : 5 : M.F.A.NO.167 OF 2005 Therefore the appeal lacks merit and it is dismissed but in the circumstances without any order as to costs. M.N.KRISHNAN, JUDGE cl