A.S. No. 418 of 2002 (OS 188/1992 of I Addl. Sub Court, Kollam)

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 2 A.S.418/2002. 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._ 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_ 16 A.S.418/2002. _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 terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A Will is to prove_ A.S.418/2002. 20 _what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Indian Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable._ _The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any._ 21 _In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai Shedage (2002) 2 SCC 85 and Sridevi and Ors. v. Jayaraja Shetty and Ors. (2005) 8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document._ _There are several circumstances which would have been held to be described by this Court as suspicious circumstances :-_ _(i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will;_ _(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;_ _(iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit.”_ A.S.418/2002. 22 19. In the decision reported in **S.R.Srinivasa v.** **S. Padmavathamma** ((2010) 5 SCC 274) it was held as follows: _“This Court in Iyengar case had clearly held that cases in which the execution of the will is surrounded by suspicious circumstances, it may raise a doubt as to whether the testator was acting of his own free will. In such circumstances it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter. The presence of suspicious circumstances makes initial onus heavier. Such suspicion cannot be removed by the mere assertion of the propounder that the will bears signature of the testator or that the testator was in a sound and disposing state of mind at the time when the will was made._ _In our opinion, the High Court failed to exercise proper care and caution by not throughly examining the evidence led by the party, especially when it was not in agreement with the reasons recorded by the first appellate court._ _In Jaswant Kaur V. Amrit Kaur, the Court reiterated the principles governing the proof of a_ A.S.418/2002. 23 _will which is alleged to be surrounded by suspicious circumstances. Chandrachud, J. speaking for the Court observed as follows:_ “The defendant who is the principal legatee and for all practical purpose the sole legatee under the will, is also the propounder of the will. It is he who set up the will in answer to the plaintiff's claim in the suit for a one-half share in her husband's estate. Leaving aside the rules as to the burden of proof which are peculiar to the proof of testamentary instruments, the normal rule which governs any legal proceeding is that the burden of proving a fact in issue lies on him who asserts it, not on him who denies it. In other words, the burden lies on the party which would fail in the suit if no evidence were led on the fact alleged by him. Accordingly, the defendant ought to have led satisfactory evidence to prove the due execution of the will by its grandfather Sardar Gobinder Singh. In cases where the execution of a will is shrouded in suspicion its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises A.S.418/2002. 24 for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will.” 20. In the decision reported in **Yumnam Ongbi Tampha Ibema Devi v. YumnamJoykumar Singh** ((2009) 4 SCC 780) it was held as follows: _“As per provisions of Section 63 of the Succession Act, for the due execution of a will:_ - _(1) the tester should sign or affix his mark to_ _the will;_ _(2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a will;_ - _(3) the will should be attested by two or more witnesses, and_ A.S.418/2002. 25 _(4) each of the said witnesses must have seen the testator signing or affixing his mark to the will and each of them should sign the will in the presence of the testator._ _The attestation of the will in the manner stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attested (sic attesting) witness should put his signature on the will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Since a will is required by law to be attested, its execution has to be proved in the manner laid down in the section and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document._ _Therefore, having regard to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the_ 26 _will. The attesting witness should speak not only about the testator's signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator._ 21. In the decision reported in **K. Laxmanan v. Thekkayil Padmini** (AIR 2009 SC 951) it was held as follows: _“Strong reliance was placed on this provision also by the learned counsel appearing for the parties. A bare reading of the aforesaid provision will make it crystal clear that so far as a Deed of Will is concerned, the position in law is no longer in doubt for the onus of proving the Will is on the propounder. The propounder has to prove the legality of the execution and genuineness of the said Will by proving absence of suspicious circumstances surrounding the said Will and also by proving the testamentary capacity and the signature of the testator. Once the same is proved, it could be said that the propounder has discharged the onus._ 27 _When there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the Court and only when such responsibility is discharged, the Court would accept the Will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the Court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. In such a case, the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. The aforesaid view is taken by us in consonance with the decision of this Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee [AIR 1964 SC 529] and Pushpavathi v. Chandraraja Kadamba [(1973) 3 SCC 291]._ A.S.418/2002. 28 ## 22. In the decision reported in **Apoline D'Souza** **v. John D'Souza** (AIR 2007 SC 2219) it was held as follows: _“The requirements to prove execution of the will are laid down under Section 63 of the Act only in the year 1925. The law has since undergone a change. In any event, this Court is bound by the decisions of this Court._ _In Naresh Charan Das Gupta v. Paresh Charan Das Gupta [1954 SCR 1035] whereupon again reliance has been placed, this Court has categorically held :_ _"........_ It cannot be laid down as a matter of law that because the witnesses did not state in examination-in-chief that they signed the will in the presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence. The finding of the Court below that the will was duly attested is based on a consideration of all the materials, and must be A.S.418/2002. 29 accepted. _.........."_ _The ratio of the said decision does not assist the appellant, as the mode and manner of proof of due execution of a will indisputably will depend upon the facts and circumstances of each case. It is for the propounder of the will to remove the suspicious circumstances, which has not been done in this case.”_ ## 23. In the decision reported in **Benga Behera v. Braja Kishore Nanda** (AIR 2007 SC 1975) it was held as follows: _“A question has also been raised as to whether a certificate by Sub-Registrar at the time of registration proves attestation. A Sub-Registrar in the matter of registration of a document acts under the provisions of the Registration Act, 1908 (1908 Act). Section 52 of the 1908 Act prescribes the duty of Registering Officer when document is presented in terms thereof. The signature of every person presenting a document for registration is required to be endorsed on every such document_ 30 _at the time of presentation. Section 58 prescribes the particulars to be endorsed on documents admitted to registration, such as;_ _"_ (a) Signature of the person admitting the execution of the document; (b) Any money or delivery of goods made in presence of Registering Officer in reference to the execution of the document shall be endorsed by the Registering Officer in the document presented for Registration. Therefore this is the only duty cast on the Registering authority to endorse on the Will, i.e. to endorse only the admission or execution by the person who presented the document for registration. The compliance of this provision leads to the legal presumption that the document was registered and nothing else _."_ _If an authority in performance of a statutory duty signs a document, he does not become an attesting witness within the meaning of S. 3 of the Transfer of Property Act and S. 63 of the Succession Act. The term 'attestation' means :_ _"to 'attest' is to bear witness to a fact. The essential conditions of valid attestation are (i) two or more witnesses have seen the executant sign_ A.S.418/2002. 31 _the instrument (ii) each of them has signed the instrument in presence of the executant._ _"Animus attestandi" is a necessary ingredient for proving the attestation. If a person puts his signature in a document only in discharge of his statutory duty, he may not be treated to be an attesting witness.”_ 24. In the decision reported in **Crystal Developers v. Asha Lata Ghosh** (AIR 2004 SC 4980) it was held as follows: _“Similarly, in the case of Smt. Indu Bala Bose and Ors. v. Manindra Chandra Bose and Anr. reported in (AIR 1982 SC 133), it has been held that a circumstance would be "suspicious" when it is abnormal or is not normally expected in a normal situation or is not expected of a normal person.”_ 25. Having thus understood the law regarding Wills, one may now venture to probe into the evidence in this case to ascertain whether the grievances of the A.S.418/2002. 32 appellants are justified. As already noticed, considerable reliance is placed on the evidence of P.W.3. I shall come to his evidence a little later. P.W.1. who is the first plaintiff speaks about the ailment of Gangadharan and gives a picture as if Gangadharan was a living vegetable. He says that Gangadharan was completely affected by paralysis and he could do nothing of his own and incapable of understanding the acts done by him. He was unable to move from bed. 26. P.W.2 is the Manager of the Bank where Gangadharan is said to have held an account. He had produced statement of accounts regarding the account maintained by Gangadharan and also his specimen signature. 27. D.W.1 is the propounder of the Will. D.W.2 is the Sub Registrar who registered the Will. D.W.3 is one of the attesting witnesses. D.W.4 is the scribe and D.W.5 is the identifying witness. 33 A.S.418/2002. 28. Being the propounder of the Will, the burden is on D.W.1 to show that the Will was duly executed by Gangadharan. He would say that though Gangadharan was sick and could not manage his own affairs, he was not incapable of understanding the nature of things. He would point out that the claims made by P.W.1 regarding the total incapacity of Gangadharan is baseless. 29. D.W.2 is the Sub Registrar, who had registered the Will. Her evidence is of some importance. Her evidence discloses that the Will was registered from the house of Gangadharan. The witness says that on getting a request to go over to the house of Gangadharan for the purpose of registration, she had gone to his house. She would depose that when she reached the place, there was nobodyelse. Later on the identifying witness came to the place and identified Gangadharan and all other formalities were thereafter completed. This witness would say that when she had gone to the house of Gangadharan he had physical disabilities. She deposed that she had read out the A.S.418/2002. 34 contents of the Will to Gangadharan and who acknowledged the same. She would also say that she had obtained the thump impression of Gangadharan in the Will as well as in the register maintained by her office. Ext.X1 is the register and Ext.X1(a) is the relevant entry. 30. D.W.3, as already stated is one of the attesting witnesses. He is a scribe by profession. He is the first attesting witness to Ext.A2, the original of which is Ext.B1. This witness says that the executor had signed in his presence and as well as in the presence of Sub Registrar. He would also say that the two attesting witnesses signed in the presence of Gangadharan and Gangadharan was having sufficient mental capacity to understand the nature of disposition made by him. 31. D.W.4 is the scribe. He would say that based on the draft, he had prepared the original Will and he is also an attesting witness. He too would say that Gangadharan had signed in his presence and the attesting witnesses had signed in the presence of Gangadharan. A.S.418/2002. 35 32. As already adverted to, much emphasize has been laid on the evidence of P.W.3, who had attended to Gangadharan. His evidence, according to the appellants, are sufficient to show that the evidence given by defendants 1 to 5 are false. Now one may again refer to the evidence of P.W.3. All that P.W.3 says is that Gangadharan was affected by paralysis on the right side of his body and thus he is physically incapacitated. There is nothing in the evidence of P.W.3 to show that the mental faculties of Gangadharan had been affected by the disease suffered by him. P.W.3 does not speak about the mental incapacity of Gangadharan and there is no evidence at all to show that Gangadharan, even assuming was labouring under a physical disability, did not have a sound disposing state of mind. There is nothing to show that he was unable to know the things that was happening around him and the nature of acts done by him. It is interesting at this juncture to note that during the period from 1.1.1991 till the death of Gangadharan on 10.12.1991, on two occasions he had A.S.418/2002. 36 drawn amounts from the Bank as would be evident from a perusal of Ext.A5 statement of accounts. The evidence of P.W.3 is therefore insufficient to show that Gangadharan was so sick and ill that he was unable to understand the nature of the acts done by him. 33. It was pointed out that the signature alleged to be that of Gangadharan found on Ext.B1 is highly suspicious. When compared with the admitted signature of Gangadharan, the disputed signature does not compare well at all. The disputed signature consisting of three lines, which is not the way in which Gangadharan used to sign. 34. It is true that the signature would appear to be suspicious. However, the lower court has chosen to rely on the evidence furnished by D.W.2, the Sub Registrar and also the evidence of D.Ws.3 and 4. Even assuming for argument sake that D.Ws.3 and 4 who were closely associated with document writing and affairs in the Registrar's office, there is no justification or reason to doubt the evidence furnished by D.W.2. D.W.2 as already noticed, A.S.418/2002. 37 is the Sub Registrar, who is totally disinterested and independent witness. There is no evidence to show that she had reason to unduly favour the first defendant. The court on an appreciation of the evidence found that the witness had spoken only the truth and certain infirmities are bound to occur in the evidence of any witness. Her evidence as rightly noticed by the court below has a ring of truth. 35. As noticed earlier, the signature of Gangadharan in Ext.B1 differs considerably from the admitted signature in Ext.A3. It is these dissimilarities that are highlighted to contend for the position that the Will is a concocted and fabricated one. Here again, one has to notice the evidence of D.Ws. 3 and 4 along with the evidence of D.W.2. There are two aspects in this regard. Even D.W.2 would admit that the testator at the relevant time was not in a position to stand on his own. she also found that he was not in a position to sign the document. However, she would say that the signatures on Ext.B1 was put in her presence and she had obtained the thumb impression of the testator A.S.418/2002. 38 on various documents as would be clear from Ext.X1(a) register. There is nothing to indicate that she was closely associated with D.W.1, the first defendant. Again, as already noticed the evidence of P.W.3 is insufficient to show that Gangadharan was mentally debilitated. One may be physically unfit, but that does not mean that his mental faculties are affected. The fact that the mental faculties of Gangadharan was in tact would be evident from the fact that he had occasion to draw amounts from the Bank during he relevant period. 36. The suspicious circumstances highlighted by the learned counsel for the appellants are as follows: (i) Evidence of D.Ws. 2 to 4 are contradictory regarding the persons present at the relevant time. (ii) There is no proper attestation at all. (iii) Even though the Will is dated 20.5.1991, it is seen registered only on 19.7.1991. (iv) The health of Gangadharan was bad at the relevant time. A.S.418/2002. 39 (v) Variations in the signature of Gangadharan in Ext.A3 and Ext.B1. (vi) Gangadharan had no special affinity towards anyone and it is impossible that he would disinherit the plaintiffs. (vii) D.Ws. 3, 4 and 5 are persons closely associated with the Sub Registry office and scribe's office. (viii) B schedule temple was kept in common in the partition deed evidenced by Ext.A3. That has now been given to D.W.1 absolutely. If Gangadharan was conscious at the time of execution of Ext.B1, that would not have occurred. 37. The capacity of Gangadharan to execute the document has already been dealt with. The fact that he had operated his S.B. Account till October, 1991 would clearly indicate that his mental faculties were intact and he could atleast on the date of last drawal from the Bank account was in a position to know the nature of acts done by him. Even assuming that Gangadharan was incapacitated from 40 A.S.418/2002. putting the signature on the document, as is spoken to by D.W.2, the fact remains that the said witness had deposed that the marks found in the Will are that of Gangadharan. it is not necessary that the Will should contain the signature of the executant. The mark put by him would be sufficient, provided it is duly proved. There is nothing in the evidence of D.W.2 in this regard that would indicate that evidence is found wanting to hold that Gangadharan was incapable of understanding the nature and consequences of his acts. 38. The plaintiffs do have a case that Ext.B1 is a concocted and fabricated document. If as a matter of fact Ext.B1 was a fabricated document, the person responsible for it would have made every effort to do the said act with perfection and would not have taken the risk of forging the signature of Gangadharan by putting three lines thereby creating doubt regarding the signature of Gangadharan. Though this may not be a ground to hold in favour of the Will, this factor cannot altogether be ignored. It was contended that there is no evidence or proof of due 41 A.S.418/2002. attestation of the Will. It is first pointed out that the evidence of the scribe is to the effect that a draft had been prepared and read over to Gangadharan, the fair was drawn up later. The evidence of the scribe does not show that after the fair was drawn up, it was read over to Gangadharan. This aspect is highlighted by the learned counsel for the appellants to show that Gangadharan was not aware of the contents of the Will when he affixed his signature in the document. 39. It is true that the evidence of D.W.4 is in that manner in which it has been projected by the appellants. But one cannot omit to note the evidence of D.W.2 in this regard. She categorically stated that the document was read over to Gangadharan by her and thereafter he put the signature in her presence. The evidence of D.Ws.3 and 4 would also show that they were present at the relevant time. Therefore the contention that merely because the scribe did not read over the contents of the Will to Gangadharan and A.S.418/2002. 42 it was presumed that he was not aware of the contents of the document cannot be countenanced. 40. One has to remember that the Will is of the year 1991. The witnesses were disposing after a long passage of time and it is only reasonable and normal to expect certain infirmities in their evidence. Mathematical precision cannot be expected in the matter of evidence from these witnesses. The evidence of D.Ws.3 and 4 are clear to the effect that they had signed the document as the attesting witnesses in the presence of the executor and the executor had signed the document in their presence. In the light of the evidence of D.Ws. 2, 3 and 4, there is little merit in the contention that there is no due execution and attestation of the Will. 41. One may at this point of time remember that the suspicious circumstances spoken to in various decisions are regarding the execution of the Will and not the suspicious circumstances arising out of the inconsistencies in the evidence of witnesses. 43 A.S.418/2002. 42. The evidence clearly shows that late Gangadharan was residing with D.W.1 and he was looking after his affairs. This court is not forgetting the fact that there is an allegation in the plaint that D.W.1 never permitted anyone else to meet Gangadharan. But that remains as an allegation. The evidence indicates that after his return from abroad, he has been staying with D.W.1 and D.W.1 has been looking after his affairs. In such a situation, if the testator chose to confer benefits on a person who looked after him and on his sons, there is nothing unusual or unnatural or any impropriety in it. It cannot be said that it is against normal course of human conduct. 43. There is yet another aspect. If as a matter of fact, D.W.1 was inclined to fabricate and concoct a Will, it does not stand to reason that he was magnanimous enough to distribute the properties to various heirs of Gangadharan. A reading of the Will would indicate that quite a few of his grandchildren got properties. Of course, a larger share goes to D.W.1 and his children. But that is only natural. A.S.418/2002. 44 44. The complaint regarding the temple is also not justified. Going by the terms of Ext.A3, it could be seen that temple and the properties were set apart to the share of Gangadharan and he was to manage the affairs of the temple. By the terms of the Will, those rights which Gangadharan obtained under Ext.A3 has been given to the first defendant. Nothing more is given by Ext.B1 Will. 45. Added to all the above facts is the fact that the Will is a registered document. As already noticed, though registration by itself may not be a ground to hold in favour of the Will, it is certainly a fact which merits the court in coming to the conclusion that the Will is a genuine document. The evidence of D.W.2 assumes importance in this context. 46. The court below found that the due execution and attestation of the Will have been established and if that be so, the factum of registration is an added circumstance to hold in favour of the Will. A.S.418/2002. 45 The result is that no grounds are made out to interfere with the finding of the court below that the Will Ext.B1 is a genuine document. This appeal is without merits and it is accordingly dismissed. There will be no order as to costs. **P. BHAVADASAN, JUDGE** sb.