IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 11TH FEBRUARY 2010 / 22ND MAGHA 1931 RSA.No. 127 of 2010() --------------------- AS.270/2004 of I ADDL. DISTRICT COURT, PALAKKAD OS.321/2003 of MUNSIFF COURT, CHITTUR .................... APPELLANT/APPELLANT/DEFENDANT NO.2 --------------------------------------- KAMALA SARASWATHI W/O.BHARATH KUMAR, RAMAPATTANAM PO POLLACHI TALUK, COIMBATORE DISTRICT. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT(S)/RESPONDENTS/PLAINTIFF AND DEFENDANT NO.1: --------------- 1. RAJAGOPAL S/O.LATE VADIVEL CHETTIAR, ELLAIKKAD, MOOLATHARA VILALGE & DESOM, CHITTUR TALUK PALAKKAD DISTRICT. 2. THE SECRETARY THE MOOLATHARA SERVICE CO-OPERATIVE BANK LTD, P.513 MEENAKSHIPURAM POST, CHITTUR TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.127 of 2010 -------------------------------------- Dated this the 11th day of February, 2010. JUDGMENT Second Appeal arises from judgment and decree of learned First Additional District Judge, Palakkad in A.S.No.270 of 2004 confirming judgment and decree of learned Munsiff, Chittur in O.S.No.321 of 2003. Respondent No.1/plaintiff is the brother of appellant/defendant No.2. They are the children of late Vadivel Chettiar who died on 4.9.2002. In the year 1999 Vadivel Chittiar had opened a fixed deposit account with respondent No.2/defendant No.1 which matured by 2004. In the year 1996 Vadivel Chettiar along with his wife and children executed Ext.A4, partition deed as per which the properties were divided among Vadivel Chettiar and respondent No.1. He died on 4.9.2002. Thereafter respondent NO.1 instituted the suit setting up Ext.A2, unregistered Will dated 3.3.2002 allegedly executed by the late Vadivel Chettiar and seeking declaration of his right over the properties dealt with thereby. He prayed for a decree for injunction to restrain appellant from withdrawing the amount in the fixed deposit on the strength of her nomination made by deceased Vadivel Chettiar. Respondent No.2/defendant No.1, the banker contended that there was a fixed deposit account opened by the deceased Vadivel Chettiar with appellant as nominee and normal practice is to pay the amount to the nominee on death of account holder. Appellant denied execution of the unregistered Will and contended that it is the result of forgery. According to her, Vadivel Chettiar was RSA No.127/2010 2 suffering from various illness and about a year before his death respondent No.1 demanded Vadivel Chettiar to transfer the amount in the fixed deposit as well as his other movable and immovable properties which Vadivel Chettiar refused and since then Vadivel Chettiar and respondent No.1 were not talking in terms. She contended that respondent No.1 has no right over the movable or immovable properties referred to in the disputed Will. Trial court after recording evidence reached the conclusion that due attestation and execution of Ext.A2 are proved and accordingly granted a decree in favour of respondent No.1. First appellate court confirmed it. Hence the Second Appeal urging the following substantial questions of law: i. Whether Ext.A2, Will is legally and properly executed and is sustainable in law? ii. Whether propounder has succeeded in establishing due attestation and execution of Ext.A2, Will beyond reasonable doubt? It is contended by learned counsel for appellant/defendant No.2 that due attestation and execution of Ext.A2 which is not even registered is not proved and that there are suspicious circumstances concerning alleged execution of Will which the propounder was not able to remove. According to the learned counsel courts below ought not to have upheld production of Ext.A2, Will. RSA No.127/2010 3 2. So far as proof of due attestation and execution of the Will is concerned the settled position of law is that as in the case of other documents in the case of Will also, proof with arithematical precision is not required. Respondent No.1 has put up Ext.A2, Will dated 3.3.2002. True, the Will is not registered but it is not contended that as per the law in force a Will requires registration compulsorily. Nor is registration a substitute for evidence of due execution and attestation of the Will. At the same time registration is a circumstance which could be taken into account along with other circumstance in favour of due execution of the Will. As Ext.A2 is not registered proof in that way is not available. Still it is required to be decided whether there is evidence of due execution and attestation of Ext.A2. 3. Respondent No.1 has given evidence as PW1. According to him he was not aware of the Will at the time of death of his father on 4.9.2002 and learnt about the Will only three months after death of the father. He did not say the specific date when he learnt about the disputed Will. PWs 3 and 4 are attestors in Ext.A2 and PW2 is the scribe. PW5 is a close friend of the deceased. According to PWs 2 to 5, the Will was executed and attested at the house of PW5. They have given evidence that instruction for preparation of the Will was given to PW2 by deceased Vadivel Chettiar. Evidence of PWs 3 and 4 refers to due attestation and execution of the Will as provided under law. RSA No.127/2010 4 4. Contra evidence is given by the appellant/defendant No.1 as DW2. She stated that the Will is the result of forgery and that Vadivel Chettiar was suffering from several illness since about a year before his death on 4.9.2002. Though she stated that Will is the result of forgery, on going through the deposition of appellant as DW2 I do not find any challenge to the signature of the executant in Ext.A2. Moreover, it is seen from the written statement that appellant has raised a contention that immediately after the death of Vadivel Chettiar respondent No.1 collected documents including fixed deposit receipt and signed paper left by the deceased. Though she contended that Vadivel Chettiar was suffering from various illness she has no case that Vadivel Chettiar was not having sound disposing state of mind during the time of execution of Ext.A2. No such contention is raised either in the written statement or in her evidence as DW2. I stated that there is no challenge to the signature of Vadivel Chettiar in Ext.A2. 5. The suspicious circumstance pointed out by the learned counsel for appellant before me is with reference to Exts.B5 to B9. It has come in evidence through Exts.B5 to B9 that Vadivel Chettiar had obtained decree in O.S.No.552 of 2001 and filed E.P.No.311 of 2002. It is while that execution petition was pending that Vadivel Chettiar expired. Thereafter respondent No.1, appellant and their mother filed E.A.No.38 of 2003 in the executing court on 13.1.2003 (its CC is Ext.B5) seeking their impleadment as legal RSA No.127/2010 5 representatives of the deceased Vadivel Chettiar (as if there was no testamentary succession). Ext.B6 is the copy of application for consequential amendment and Ext.B7 is the copy of application for condonation of delay in filing the application for impleadment. Ext.B8 is the copy of application dated 15.3.2003 filed by respondent No.1 in the same court seeking his impleadment as legal representative on the strength of Ext.A2 and Ext.B9 is the CC of consequent amendment application. Argument advanced by learned counsel for appellant is that if the Will was allegedly executed on 3.3.2002 and Vadivel Chettiar died on 4.9.2002 respondent No.1 would not have along with appellant and their mother filed Ext.B5, E.A.No.38 of 2003 on 13.1.2003 claiming to be legal representative of the deceased Vadivel Chettiar. It is seen from Exts.B8 and B9 that on 15.3.2003 respondent filed an application for his impleadment as legal representative on the strength of Ext.A2, the disputed Will. PW1 has given explanation that at the time of Exts.B5 to B7 he was not aware of the Will. Therefore failure to put up Ext.A2 by respondent No.1 while applying for impleadment as per Ext.B5 dated 13.1.2003 is not fatal, nor a suspicious circumstance. 6. Another circumstance which according to the learned counsel is suspicious is disinheritance of appellant and her mother while Ext.A2 was allegedly executed. True, it is seen from Ext.A2 that Vadivel Chettiar has bequeathed all his movable and immovable properties including the fixed deposit RSA No.127/2010 6 in favour of respondent No.1. Trial court has referred to the relevant decisions on the point and held that the mere fact of disinheritance of appellant and her mother by itself cannot be a suspicious circumstance. I must bear in mind that the very object of executing a Will is to interfere with the normal line of succession. Therefore mere fact that the normal line of succession is interfered with as per Ext.A2 by itself cannot be a suspicious circumstance. There are also circumstances proved in the case to show why appellant and mother were excluded from inheritance as per Ext.A2. Even in Ext.A4, partition deed the testator did not allot any share to his wife. Hence there is nothing strange in his excluding the wife as per Ext.A2. Evidence of DW2 would show that appellant was sent in marriage much prior to the execution of Ext.A4 and that the testator met all expenses in connection with the marriage. It is also in evidence that her husband has eight acres of land. Thus there is evidence that appellant was sent in marriage by the deceased into a financially well placed family. That could be the reason why the deceased wanted to disinherit the appellant while executing Ext.A2. Therefore fact of disinheritance of appellant and mother is no suspicious circumstance regarding execution of Ext.A2. 7. Another 'suspicious circumstance' pointed out is that as against the Will being prepared at the residence of the deceased or at the office of the scribe it was prepared at the residence of PW5. It has come in evidence that PW5 was a close confident of the deceased. It has also come in evidence that he is one of the witnesses in Ext.A4, partition deed. In the circumstance that the RSA No.127/2010 7 document was executed and attested at the house of PW5 is also not a suspicious circumstance. 8. Any and every circumstance cannot be 'suspicious circumstance'. A circumstance would be suspicious if in the normal course the testator would not have done so. No such circumstance exist in this case. Courts below have considered the evidence and come to the conclusion that Ext.A2 is the Will executed by deceased Vadivel Chettiar with sound disposing state of mind and duly attested by the witnesses. If that be so respondent No.1 is entitled to a decree as prayed for notwithstanding that appellant is made the nominee. As per law a nominee can only collect the amount on behalf of the legal representative. On going through the judgments under challenge and hearing learned counsel I do not find any substantial question of law involved in this Second Appeal requiring decision. Resultantly, the Second Appeal is dismissed in limine. I.A.No.297 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks