Babuji and Gouri v Bhaskaran and Others (A.S. No. 420 of 1998)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 21ST DAY OF MARCH 2017/30TH PHALGUNA, 1938** **AS.No. 420 of 1998 ( ) -----------------------** **AGAINST THE JUDGMENT AND DECREE IN OS.171/1996 of II ADDL.SUB COURT,ERNAKULAM DATED 25-09-1997** ## **APPELLANTS/DEFENDANTS 3 AND 5:** - **-----------------------------1. BABUJI, AGED 44 YEARS, S/O KRISHNAN, KIZHAKKETHAZHATH EDATH PARAMBIL, THEKKUMBHAGOM DESOM, THEKKUMBHAGOM VILLAGE, TRIPUNITHURA, KANAYANNUR TALUK.** - **2. SMT. GOURI, AGED 70 YEARS, W/O LATE KRISHNAN, KIZHAKKETHAZHATH EDATH PARAMBIL, THEKKUMBHAGOM DESOM, THEKKUMBHAGOM VILLAGE, (DIED) TRIPUNITHURA, KANAYANNUR TALUK.** **BY ADV. SRI.S.SREEKUMAR** **RESPONDENTS/PLAINTIFFS-DEFENDANTS 1,2 AND 4: -------------------------------------------** ||**1.**|**BHASKARAN, AGED 51 YEARS, S/O KRISHNAN,**|| |---|---|---|---| |||**HONEY VIHAR, MUDAVOOR, VAZHAPPILLY KARA,**|| |||**VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.**|**(DIED)**| ||**2.**|**SMT.SARALA, AGED 56 YEARS, W/O LATE SRI.PRAKASAN,**|| |||**PRAKASH BHAVAN, S.N.NAGAR, PALLURUTHY VILLAGE,**|| |||**KOCHI TALUK**<br>**(DIED)**|| ||**3.**|**SMT.PADMAKSHY ALIAS OMANA, AGED 46 YEARS,**|| |||**W/O RADHAKRISHNAN, AMBADY DESOM P.O,**|| |||**ALUVA (VIA)**|| ||**4.**|**SMT.SUJATHA, AGED 38 YEARS, W/O REGHU,**|| |||**PURAVELIL HOUSE, NEAR SIMITHERY MUKKU,**|| |||**AYYAPPANKAVU, THRIKKANARVATTOM DESOM,**|| |||**ERNAKULAM VILLAGE, KANAVANNUR TALUK.**|| |**ADDL.R5.**||**SARADHA, W/O BHASKARAN, AGED 65 YEARS,**|| |||**HONEY VIHAR, MUDAVOOR VAZHAPPILLY KARA,**|| |||**VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.**|| |**”**|**6.**|**HONEY BHASKAR, D/O BHASKARAN, AGED 38 YEARS,**|| |||**HONEY VIHAR, MUDAVOOR VAZHAPPILLY KARA,**|| |||**VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.**|| **AS.No. 420 of 1998 ( ) -----------------------** **- 2-** - **” 7. HEMA BHASKAR, D/O BHASKARAN, AGED 37 YEARS, HONEY VIHAR, MUDAVOOR VAZHAPPILLY KARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** - **” 8. HITHA BHASKAR, D/O BHASKARAN, AGED 35 YEARS, HONEY VIHAR, MUDAVOOR VAZHAPPILLY KARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** - **” 9. SABU PRAKASH, S/O LATE SARALA, PANAKKAL, THOPPUMPADY(P.O)** - **” 10. SAJAI PRAKASH, S/O LATE SARALA, PRAKASH BHAVAN, PALLURUTHY(P.O)** - **.” 11. Dr.P.S.GOPI, AGED 71 YEARS, S/O LATE SHANKUNNI, KUNJAN VYDHYAN SMARAKA OUSHADHASHALA, PARAVOORKAVALA, THOTTAKKATTUKARA (P.O), ALUVA, PIN 683108.** **LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 5 TO 8 AS PER ORDER DATED 2.7.13 IN I.A 2357/2011.** **LEGAL HEIRS OF DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 9 AND 10 AS PER ORDER DATED 2.7.2013 IN I.A 2357/2011.** **LEGAL HEIRS OF DECEASED 2ND APPELLANTIS IMPLEADED AS ADDITIONAL 11TH RESPONDENT VIDE ORDER DATED 14.2.2017 IN I.A 146/2015.** **R11 BY ADV. SRI.M.A.AUGUSTINE ADV. SRI.S.EASWARAN ADV. SRI.P.MURALEEDHARAN (IRIMPANAM) R1, R2 & R5-R8 BY ADV. SRI.M.RAVIKUMAR R3 & R4 BY ADV.SRI.S.SACHITHANANDA PAI ADV. SRI.R.D.SHENOY (SR.)** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08-03-2017, THE COURT ON 21.03.2017 DELIVERED THE FOLLOWING:** ## **V.Chitambaresh & Sathish Ninan, JJ. ============================== A.S No.420 of 1998 ========================== Dated this the 21[st] day of March, 2017** ## **JUDGMENT** ## **Sathish Ninan, J** 1. This appeal is by defendants 3 and 5 in a suit for partition. The suit was resisted by the appellants propounding Ext.B1 Will, the genuineness of which was held against by the trial court and preliminary decree for partition passed. The same is under challenge in this appeal. 2. The plaint schedule property originally belonged to Krishnan, the predecessor in interest of the parties. The plaintiff and the first defendant are the children born to Krishnan in his first wife Dakshayani. After her death, Krishnan married the 5[th] defendant. Defendants 2 to 4 are the children born to Krishnan in the 5[th] defendant. Krishnan died on 14.11.1995. The suit A.S No.420/1998 2 was filed for partition claiming 1/6 share out of the plaint schedule property. Defendants 3 and 5 set up Ext.B1 will dated 29.09.1995 executed by Krishnan. As per the will, the plaint schedule property is to vest with the third defendant and he has been directed to pay an amount of `40,000/- each to the other children within a period of three years of the death of the testator on failure of which there is a stipulation to pay interest. As noticed, the court below held against the genuineness of the will. 3. Heard Advocate Sri.Martin Jose on behalf of the appellant, Sri.R.D.Shenoy, senior counsel and Sri.M.R.Ravikumar on behalf of the contesting respondents. 4. The learned counsel for the appellant would contend that the court below went wrong in holding against the genuineness of Ext.B1 Will on the reason that the testator was hospitalized on the evening of the day of A.S No.420/1998 3 execution of the Will. The learned counsel taking us through the judgments in **Varghese v Oommen (1994(2) KLT 620), SasiKumar Banerjee and Others v Subodh Kumar Banerjee (AIR 1964 SC 529)** and **Gurudev Kaur and Others v Kaki and Others ((2007) 1 SCC 546)** would contend that the essentials for proof of a Will as laid down in the said decisions have been adequately complied with by the propounder of the Will and that the finding of the court below against the genuineness of the will is liable to be interfered with. According to the learned counsel, the execution of the will has been sufficiently proved in terms of Sections 63 and 68 of the Evidence Act by the evidence of DW2, who is the scribe of Ext.B1 will and also the evidence of DW3 and DW4, who are the attestors to Ext.B1 will. The learned counsel would submit that though the plaintiff was aware of the existence of the will, he purposefully withheld the same in the plaint and the A.S No.420/1998 4 suit was laid as if there was no bequest by the late Krishnan. He further contends that though in the written statement Ext.B1 will was put forth, the plaintiff has not challenged the will or the mental capacity of the testator, by filing replication. On the other hand, the learned counsel for the respondents would contend that Will being a solemn document, mere proof of the signatures therein by examining the attestors to the document would not be sufficient to uphold the genuineness of the Will. Apart from the factum of execution of the will, the propounder has to dispel the suspicious circumstances surrounding the Will. It is contended that the evidence reveal that Krishnan was of feeble mind at the time when Ext.B1 is said to have been executed. The surrounding circumstances including the medical evidence, the evasive conduct of the third defendant and also the disposition of the entire landed property A.S No.420/1998 5 in his favour would cast shadow on the genuiness of the Will, is the submission. The learned senior counsel relied on the decisions of the Apex Court in **Laxmanan v Padmini (2009(1) KLT 29(SC), Kalyan Singh v Chhoti and Others (AIR 1990 SC 396) and Bharpur Singh and Others v Shamsher Singh ((2009) 3 SCC 687),** to contend that it is the bounden duty of the propounder of the Will to explain away the suspicious circumstances surrounding execution of the Will irrespective of any plea in the said regard. According to him, the burden cast upon the propounder of the Will has not been discharged by him. 5. Undisputedly Krishnan was aged more than 84 years at - the time of execution of Ext.B1 Will. It is in evidence that he was hospitalized on the very date of execution of Ext.B1 will, ofcourse sometime subsequent to the execution of the document, though the exact time has not come out in evidence. PW1 is the Doctor A.S No.420/1998 6 who treated Krishnan. Exts.X1, X1(a), X1(b) and X1(c) are the treatment records of Krishnan. Ext.X1 series show that Krishnan was suffering from vomiting for the past one month. He was suffering from hypertension and having impaired memory for the past three days. He was swaying while walking. The next day morning at 6:15 a.m it has been noted in Ext.X1 that the patient cannot be aroused from sleep by verbal stimuli and that in spite of calling he did not wake up. In the evidence of PW1, the Doctor who treated Krishnan, he has stated that the sodium level was low. He has also deposed that C.T Scan of the brain was advised and report did not show such extensive damage as he anticipated. Though he would say that when the patient was taken to him he was conscious and was in a position to understand things, going by the evidence of PW1 along with Ext.X1 series, it is beyond doubt that he was of very feeble mind and health. This by A.S No.420/1998 7 itself is not sufficient to discard Ext.B1 Will but it definitely casts burden on the propounder of the will to prove that the testator had sound disposing state of mind and also to explain away all the suspicious circumstances surrounding the execution of the Will. On the available medical evidence namely Ext.X1 series and oral evidence of the Doctor as PW1, it is beyond doubt that Krishnan was suffering from vomiting since a month, deficient in sodium, loss of memory etc. However, the witnesses examined on the side of the defendants seemed to be over anxious to sound that Krishnan was healthy and was not suffering from any deceases. Even the evidence of DW5, his wife is in the said lines. This directly goes against the medical evidence available in the case. The over anxiety on the part of the defendants' witnesses to make it appear that Krishnan was healthy and was not suffering from any deceases creates doubt and suspicion. So A.S No.420/1998 8 also, as noticed by the trial court there is contradiction between the evidence of DW1 namely the 5[th] defendant and DW2 the scribe regarding the preparation of the will. Added to all these is the wilful abstention of the third defendant from the witness box. Though he is the legatee of the entire property, he has not come forward to support the Will. DW1 namely 5[th] defendant has admitted that the attestors to Ext.B1 will are the close friends of the third defendant, the legatee. The trial court has taken note of the circumstances indicating the involvement of third defendant in the execution of the Will. In cross examination of defendants' witnesses it has been pointedly suggested that the third defendant is the person behind the execution of Ext.B1 will. As submitted by the learned senior counsel, mere proof of execution of the will alone does not entail in upholding the genuineness of the will. Suspicious A.S No.420/1998 9 circumstances, if any, surrounding the will has to be discharged by the propounder of the will. As held by the Apex Court in **Kalyan Singh v Chhoti and Others** ## **(AIR 1990 SC 396),** “A Will is one of the most solemn documents known to law. The executant of the Will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the Will. It must be stated that the factum of execution and validity of the Will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.” A.S No.420/1998 10 6. In **Bharpur Singh and Others v Shamsher Singh ((2009) 3 SCC 687)** the Apex Court has noticed the earlier judgment in **Jaswant Kaur v Amrit Kaur ((1997) 1 SCC 369)** wherein it is held that when the Will is allegedly shrouded in suspicion its proof ceases to be a simple lis between the plaintiff and defendant. An adversarial proceeding in such cases becomes a matter of court's conscience and the propounder of the Will has to remove all the suspicious circumstances. In paragraph 23 of the said judgment the court has referred to certain suspicious circumstances, though it is not exhaustive. “23. Suspicious circumstances like the following may be found to be surrounded in the execution of the will: (i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. (ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time. (iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for A.S No.420/1998 11 the natural heirs without any reason. (iv) The dispositions may not appear to be the result of the testator's free will and mind. (v) The propounder takes a prominent part in the execution of the will. (vi) The testator used to sign blank papers. (vii) The will did not see the light of the day for long. (viii) Incorrect recitals of essential facts.” 7. Here it is in evidence that the testator's mind at the relevant time was very feeble and there was loss of memory. He has been suffering from vomiting since a month. He was low on Sodium. From the above one could easily visualise the physical and mental condition of Krishnan on the date of execution of the will. It needs no elaboration. Therefore, it was for the third defendant to dispel the suspicious circumstances that emerges in the case. The person who challenges the Will need not be pinned down to his pleadings. The suspicious circumstances that emerge from the evidence is liable to be dispelled with by the propounder of A.S No.420/1998 12 the will. The mere fact that the plaintiff did not file replication challenging the Will or raising any suspicious circumstances, will not help the propounder of the Will from discharging his burden. 8. As noticed by the trial court, the burden on the part of defendants 3 and 5 to dispel the suspicious circumstances in the background of the medical evidence regarding the physical and mental condition of Krishnan has not been discharged by the third defendant. Finally we may add that, we have looked into the signatures in Ext.B1 Will. The signatures are mere drawings which itself varies from one another and leaves no room of doubt regarding the conclusion that we have arrived at. However we make it clear that that has not been the basis of the judgment and that it is being mentioned only to express that it satisfies and justifies our conscience and judgment. There is no reason to differ from the conclusion A.S No.420/1998 13 arrived at by the court below regarding the validity of Ext.B1 will. In the result, the appeal fails and is dismissed. No costs. Sd/- **V.Chitambaresh, Judge** Sd/- **Sathish Ninan, Judge** vdv