High Court of KeralaSingle Judge2008-06-16Appeals dismissed; Will held valid; probate den...

Annakkutty W/o Varghese v. Joseph @ Ouseph @ Pappu and Others

Case / Petition Number:MFA No. 554 of 1995 & SA No. 172/1996

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: M. N. Krishnan
Judgment Date: 2008-06-16
Court Decision / Holding: In the result, MFA No. 554/1995 and SA No. 172/1996 are dismissed without costs; the Will Ext. A1 is upheld as genuine, probate denied to the appellant, and the respondents/plaintiffs are not entitled to partition or probate relief.
Final Disposition: Appeals dismissed; Will held valid; probate denied to appellant; parties to bear their own costs.

Parties to the Case

Appellants / Petitioners

Annakkutty W/o. Varghese aged 55 years, residing at Muttathukunnel House, Karimba Desom, Mannarghat Taluk

Respondents

1. JOSEPH @ OUSEPH @ PAPPU AGED 62 S/O. OUSEPH OF KALLINKAKUDIYIL HOUSE, ALAKODE VILLAGE, THODUPUZHA TALUK.
2. JOSEPH AGED 31 S/O. OUSEPH OF DO. DO.
3. ALEY W/O. LATE OUSEPH AGED 80 OF KALLINKAKUDIYIL OF DO. DO.
4. MARYKKUTTY ALEXANDER, AGED 52 D/O. OUSEPH RESIDING AT 11702 MEADINTRIAL IN STAFFORD IX- 77477 , U.S.A.
5. JOHNY S/O. JOSEPH AGED 29 OF KALLINKAKUDIYIL NOW RESIDING AT ROOM NO.22 A SECTOR IV, PUSHPAK VIHAR, NEW DELHI.
6. GEORGE S/O. JOSEPH AGED 27 OF KALLINKAKUDIYIL NOW RESIDING AT HOUSE NO.793, SECTOR VIII FAREADABAD, DELHI.
7. VARGHESE S/O. LATE VARKEY OF KALLINKAKUDIYIL HOUSE, NOW RESIDING AT MUTHALAKODAM, THODUPUZHA.
8. ALEY, D/O. LATE VARKEY AGED 72 OF MUTTATHUKUNNEL HOUSE, UDUMPANNOOR IDIKKI DISTRICT.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. V. Sankara Raja
• Sri. T. N. Hareendran

Counsels for Respondents

• Sri. C. J. Joy

Case Synopsis & Summary

This High Court of Kerala, Ernakulam, heard MFA No. 554/1995 (and SA No. 172/1996) arising from Os. 7/1993 of the District Court, Thodupuzha, concerning genuineness and validity of Ext. A1 Will alleged to be executed by Varkey Ouseph and others. The appellant Annakkutty (Annakutty W/o. Varghese) contends that the Will is concocted and that the testator’s signature was obtained under suspicious circumstances, especially given a prior partition deed Ext. A3 which allegedly allotted the property exclusively to the father, Varkey, with others having no right. The propounder must prove that the Will was signed by the testator, that at the relevant time he was of sound and disposing mind, understood the nature and effect of the dispositions, and signed freely (the “arm chair” test discussed by the Supreme Court in H. Venkatachala). The trial court held Ext. A1 proved, PW2 as attestor supported the Will, and the court below addressed the issue of suspicious circumstances, concluding none existed and the joiners to the Will were explained adequately. The High Court reaffirmed that the Will can be acted upon if genuine, citing Chandrasekharan Nair and Ramachandra Rao for the same dictum, and found no valid grounds to doubt execution or capacity. Consequently, the appeals are dismissed with no costs, upholding the Will and denying probate or partition rights to the appellants.

Provisions of Law Cited

Section 114 of the Indian Evidence Act

Legal Doctrines & Maxims

Arm chair test for Will disputes: if the testator is not available, the propounder must prove that the Will is signed by the testator, he was in sound disposing mind, understood the nature and effect of the dispositions, and acted of his own free will.
Presumption under Section 114 of the Indian Evidence Act regarding official acts (registration) being properly performed.
Suspicious circumstances in Will execution must be removed by the propounder; absence of suspicious circumstances allows reliance on the Will’s genuineness.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends Ext. A1 is a concocted Will. She submits that the Will’s execution is dubious due to the partition deed Ext. A3, which shows the father’s exclusive right and the joining of two others who have no rights, casting suspicion on the Will. She points to the testator’s health, potential loans encumbering the property, and the possibility of others manipulating his signature. She argues that mere registration does not prove genuineness and emphasizes the need to show the testator’s capacity and intent, per the Supreme Court’s arm chair principle and the requirement of removing suspicious circumstances. The absence of contest by the testator’s wife and other children is argued to raise doubt rather than support validity. Thus the propounder must furnish satisfactory evidence of signing, sound mind, understanding, and free will; otherwise probate should be denied. The respondents counter that Ext. A1 was proved by PW2 (first attestor), the trial court analyzed the mental capacity and lack of suspicious circumstances, and that the presence of non-heir joiners does not invalidate the Will when explained. They rely on the Supreme Court’s caution and the cited decisions to support the genuineness of the Will and deny the appellant any right to the estate, arguing that the Will should be acted upon and probate granted to the propounder.

Contentions of Respondents

The respondents’ counsel contends that Ext. A1’s execution was properly proved by PW2, with no suspicious circumstances, and that the inclusion of others not entitled to rights has a rational explanation, not undermining the Will’s genuineness. They rely on the Apex Court’s decision (H. Venkatachala) and Kerala authorities (Chandrasekharan Nair; Ramachandra Rao) to support the validity of the Will and the court’s finding that the propounder is entitled to probate. They argue that mere joining of individuals with no rights cannot cast suspicion when explained, and that the overall circumstances support the reading that the testator understood and freely disposed of his property.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
H. Venkatachala v. B. N. Thimmajama	AIR 1959 SC 443	Positive	Cited to illustrate the arm chair test for Will disputes and the requirement that the propounder prove genuineness, capacity, and free will in the testator, especially when the testator is not available.
Chandrasekharan Nair v. Krishnan Nair	(1966) KLT 355	Positive	Referenced for the principle regarding suspicious circumstances surrounding Will execution and the need to remove such suspicions by the propounder.
Ramachandra Rao v. Rajendra Rao	1995 (1) ILR Kerala 567	Positive	Cited to support the dictum on the handling of suspicious circumstances and the necessity to prove Will execution in light of facts.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** ## **MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930** ## **MFA.No. 554 of 1995(D)** ## **------------------------------** ## **OS.7/1993 of D ISTRICT COURT,THODUPUZHA** **....................** ## **APPELLANT: IN M.F.A. AND DEFENDANT NO.2 IN OS.** ## **-----------------** ## **ANNAKKUTTY W/O. VARGHESE AGED 55 YEARS, RESIDING AT MUTTATHUKUNNEL HOUSE, KARIMBA DESOM, MANNARGHAT TALUK.** **BY ADV. SRI.V.SANKARA RAJA, SRI. T.N.HAREENDRAN** ## **RESPONDENTS: 1 & 2 IN MFA. AND PLAINTIFFS IN OS.** **----------------------** **1. JOSEPH @ OUSEPH @ PAPPU AGED 62 S/O. OUSEPH OF KALLINKAKUDIYIL HOUSE, ALAKODE VILLAGE, THODUPUZHA TALUK.** **2. JOSEPH AGED 31 S/O. OUSEPH OF DO. DO.** **3. ALEY W/O. LATE OUSEPH AGED 80 OF KALLINKAKUDIYIL OF DO. DO.** **4. MARYKKUTTY ALEXANDER, AGED 52 D/O. OUSEPH RESIDING AT 11702 MEADINTRIAL IN STAFFORD IX- 77477 , U.S.A.** **5. JOHNY S/O. JOSEPH AGED 29 OF KALLINKAKUDIYIL NOW RESIDING AT ROOM NO.22 A SECTOR IV, PUSHPAK VIHAR, NEW DELHI.** **6. GEORGE S/O. JOSEPH AGED 27 OF KALLINKAKUDIYIL NOW RESIDING AT HOUSE NO.793, SECTOR VIII FAREADABAD, DELHI.** ## **M.F.A. NO.554/1995** **7. VARGHESE S/O. LATE VARKEY OF KALLINKAKUDIYIL HOUSE, NOW RESIDING AT MUTHALAKODAM, THODUPUZHA.** **8. ALEY, D/O. LATE VARKEY AGED 72 OF MUTTATHUKUNNEL HOUSE, UDUMPANNOOR IDIKKI DISTRICT.** ## **BY ADV. SRI.C.J.JOY** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2008, ALONG WITH SA NO. 172 OF 1996 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **M.N.KRISHNAN, J** ## **===================== MFA No.554/1995 & SA No.172/1996** ## **=====================** ## **Dated this the 16th day of June 2008** ## **JUDGMENT** These appeals are preferred so as to decide the genuineness and validity of Ext.A1 alleged to be executed by one Ouseph and two others. So far as MFA is concerned, it was filed as a testamentary O.P. which was later converted into a contentious suit. Even according to the contesting 2[nd] defendant, viz., Annakutty, her father had exclusive right over the property and he has not executed any Will of his own and the Will relied on by the plaintiffs in the suit is a concocted one and therefore the plaintiffs in the suit are not entitled to the letters of probate and so also she being the plaintiff in the other suit O.S.No.51 of 1990 is entitled to claim partition of the property. So the success or failure of the case depends upon the acceptance of the genuineness of the Will. I may straight away refer to the principle to be followed in such cases. The Apex Court in the decision reported in H.Venkatachala v. B. N.Thimmajama(AIR 1959 SC 443) has cautioned how a case relating to Will has to be looked into. The court reminded that the court while deciding the issue is sitting on the arm chair MFA554/95 & SA 172/96 -:2:- of the testator, who is not available and in such circumstances, if there is suspicion, 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. Learned counsel for the appellant would submit before me the following facts which according to her raises a suspicious circumstance. There was a partition deed in the family Ext.A3, whereby the property was exclusively alloted to the father Varkey and the junction of two others other than Varkey in the Will executed in the year 1988 would raise a serious suspicion in the mind of the parties. Similarly it is contended that the father was unwell and if he had a real disposing state of mind he would not have deprived of his wife and two other children. The trial court has elaborately dealt with the evidence in the matter. The propounder of the Will, viz., the person, who had applied for the probate was aged 62 years and was the only son of Varkey Ouseph. The court below found that the execution of the Will has been proved by PW2, who is the first attestor under Ext.A1 Will. The testator, viz., Varkey Ouseph died only on 30.5.1989. There are two other children of the testator who are respondents 2 and 3 and both of them are daughters. None of the daughters MFA554/95 & SA 172/96 -:3:- and the widow of the testator had chosen to contest the case. PW1 had deposed before the court below that the present appellant was given in marriage in the year 1954 after giving sufficient gold ornaments and cash. It is also stated by the court below that the appellant has confessed that her father was a literate person who could read and write only he was bedridden. It is also submitted that he had taken sufficient loans by encumbering the property. So many questions were put to her regarding the affixture of the signature. She would submit that somebody must have put his signature by holding the hand. It is true that a document by mere registration is not sufficient to establish its genuineness. But, it has also to be remembered that there is a presumption under Section 114 of the Evidence Act. When an act is done by an officer in the course of his business he will do it correctly and without identifying the person one would not have registered the Will. The fact that the executant had gone to the Registrar's office would indicate about his physical capacity and it has to be stated that the documents are registered only after the admission of the signature is done by the executant. In such a circumstance, one cannot simply hold that he was not in a position to understand the consequences of his action. If he was under the treatment of somebody, some documents should have been produced by the appellant to establish that fact. No MFA554/95 & SA 172/96 -:4:- document is forth coming in that direction. 2. Learned counsel for the appellant highlights her argument on the ground that if it is really a document executed by the father, there is no necessity to have the junction of two others, who have no interest in the property. It is explained and the mere junction of somebody who has no right over the property certainly would not raise a suspicion. Normally if a document is attempted to be forged or fabricated, one would bestow his best attention to avert these type of suspicious circumstances. One of the executants had been examined before court and evidence is recorded to the effect that she has joined only to avoid further complications. As PW3 she had deposed that nobody mentioned about the partition deed and so the scribe opined that brother and sister also should join. Her evidence inspired confidence and the explanation is satisfactory. The court below found that evidence of DW1 is not trustworthy. It is also submitted that it will not confer any right. So until and unless there are materials which throws doubt the mind of the court regarding the mental capacity of the testator it is not possible in each and every case on some conjectures and surmises to arrive at a decision regarding the non-genuineness of the document. Learned counsel would contend that junction of persons who are not entitled to any right itself is a suspicious circumstance. I feel it cannot MFA554/95 & SA 172/96 -:5:- be turned to be a suspicious circumstance for the reason that it has been properly explained. The learned District Judge has considered the evidence in the correct perspective and had arrived at a decision. As laid down by the Apex Court , the mind of the court is satisfied by non-existence of suspicious circumstance. The execution of the document is proved. The mental capacity of the testator is proved and the circumstances under which the persons who are not entitled to the property are joined as parties is also explained and one cannot forget the fact that own sister and mother who are also entitled to the property, if there is no Will executed by the father has chosen to remain silent. All these things will certainly go to establish that the finding of the court below cannot be found fault with. 3. The learned counsel for the appellant had cited the decision reported in Chandrasekharan Nair v. Krishnan Nair(1966 KLT 355). In that decision also reference is made to the decision of the Apex Court in AIR 1959 SC 443. The decision also lays down that suspicious circumstances if any surrounding the execution of the Will has to be removed by the propounder. The other decision relied on is 1995(1) ILR Kerala 567 (Ramachandra Rao v. Rajendra Rao) where also the same dictum is laid down. As discussed by me earlier there are no such suspicious circumstances and all the materials necessary are proved. Therefore the MFA554/95 & SA 172/96 -:6:- points laid down in these decisions had been proved. 4. So far as the second appeal is concerned, everything depends upon the finality in the decision of the MF.A. and since I have held in the M.F.A. that Will is a document that can be acted upon and that is genuine, then the court below was right in holding that the plaintiff therein, viz., the appellant is not entitled to any right over the property. Taking into consideration the relationship of the parties and the circumstances, I direct all the parties to bear their respective costs. In the result, M.F.A. and S.A. are dismissed without costs. ## **M.N.KRISHNAN, JUDGE** **Cdp/-**