Balakrishnan and others v. Divakaran

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 RSA.No. 869 of 2011() --------------------AS.126/2005 of ADDL. DISTRICT COURT-II, MAVELIKKARA OS.349/1999 of MUNSIFF COURT,KAYAMKULAM .................... ## APPELLANTS/RESPONDENTS/DEFENDANTS:- ------------------------------- 1. BALAKRISHNAN, AGED 60 YEARS, S/O. NEELAKANTAN, PANNAKKUZHIYIL VEEDU, PRAYAR VADAKKUM MURI, PUTHUPALLY VILLAGE, KAYAMKULAM, ALAPPUZHA DISTRICT - 688 001. 2. SANKARI, AGED 65 YEARS, W/O. BALAKRISHNAN,PANNAKKUZHIYIL VEEDU, PRAYAR VADAKKUM MURI, PUTHUPALLY VILLAGE, KAYAMKULAM, ALAPPUZHA DISTRICT - 688 001. 3. ASHA, AGED 30 YEARS, D/O. SANKARI, PANNAKKUZHIYIL VEEDU, PRAYAR VADAKKUM MURI, PUTHUPALLY VILLAGE, KAYAMKULAM, ALAPPUZHA DISTRICT - 688 001. 4. VIPINLAL, S/O. BALAKRISHNAN, PANNAKKUZHIYIL VEEDU, PRAYAR VADAKKUM MURI, PUTHUPALLY VILLAGE, KAYAMKULAM, ALAPPUZHA DISTRICT - 688 001. BY ADV. SRI.C.RAJENDRAN SMT.R.S.SREEVIDYA RESPONDENT/APPELLANT/PLAINTIFF ------------------------ DIVAKARAN, S/O. KESAVAN, AGED 72 YEARS, PANNAKUZHIYIL VEEDU, PRAYAR VADAKKUM MURI, PUTHUPPALLY VILLAGE, KAYAMKULAM, ALAPPUZHA DISTRICT - 688 001. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/12/2011, ALONG WITH RSA NO. 1263 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## M.SASIDHARAN NAMBIAR, J ........................................... RSA No.869 & 1263 of 2011 ............................................ DATED THIS THE 13[th] DAY OF DECEMBER, 2011 ## JUDGMENT Defendants in O.S.349 of 1999 and the plaintiff in O.S.384 of 1999 on the file of Munsiff Court, Kayamkulam are the appellants. R.S.A.1263 of 2011 is filed challenging the decree in O.S.384 of 1999 as modified by Additional District Court, Mavelikkara in A.S.127 of 2005 and R.S.A.869 of 2011 is filed challenging the decree in O.S.349 of 1999 as modified by Additional District Court, Mavelikkara in A.S.126 of 2005. Plaint schedule property is 25.15 ares in R.S.No.660/1 of Puthupally Village with the building DP III/85. It admittedly originally belonged to Kochupennu and Kunjukochu under Ext.B2 partition deed. They are direct sisters. Under Ext.B2 Kochupennu and her minor son, the respondent, were alloted 38 cents in survey No.7234/A, 31 and in the same survey number, 4 cents in survey No.7234/B and 3 cents in survey number 7231/3. 18 cents was alloted to Kunjukochu who in turn mortgaged the said 18 cents in favour of Kochupennu in 1124. The mortgage admittedly RSA 869 & 1263/2011 2 became irredeemable. First appellant is the son of Kunjukochu and other appellants, his wife and children. It is also admitted case that Kochupennu later under Ext.B1 gift deed transferred her half right in favour of first appellant and subsequently in 1995, first appellant under Ext.B3 sale deed transferred the said right in favour of Kochupennu. Respondent would contend that on the death of Kochupennu her half right under Ext.B3 also devolved on him being her son and he has absolute title to the property and appellants are residing in the building in the plaint schedule property and respondent is entitled to a declaration that he is also entitled to the one half right of Kochupennu and Ext.B4 will is a false will and it is void and also to recover possession of the building from the possession of the appellants. Appellants in their written statement and the first appellant in O.S.384 of 1999 contended that Kochupennu voluntarily executed Ext.B4 will and it is valid and binding on the respondent and the property and under Ext.B4 will he obtained the one half right of Kochupennu. O.S.384 of 1999 was filed to declare his one half right under Ext.B4 will. It was contended that respondent is not entitled to any relief in O.S.349 of 1999. RSA 869 & 1263/2011 3 2. Learned Munsiff tried both suits jointly. Learned Munsiff on the evidence upheld Ext.B4 will and found that respondent cannot claim absolute right. O.S.349 of 1999 was decreed in part declaring his one half right and restraining appellants from cutting trees and making new constructions. O.S.384 of 1999 was decreed declaring the half right of the appellants to the plaint schedule property under Ext.B4 will. Respondent challenged the decree before Additional District Court, Mavelikkara in A.S.126 of 2005 and A.S.127 of 2006. Learned Additional District Judge, on re-appreciation of the evidence, found that execution of Ext.B4 will is not proved and it is not valid, holding that though DW2 was examined as one of the attesting witnesses, Ext.B4 shows that he signed in Ext.B4 will only as its scribe and not as an attesting witness and as the will was not executed in the presence of two witnesses, as provided under Section 63 of Indian Succession Act, Ext.B4 will is not valid and based on Ext.B4 will, appellants are not entitled to claim any right. Finding that half right which was available with Kochupennu was inherited by the respondent and appellants cannot claim any right or title under Ext.B4 will, the appeals were allowed and the RSA 869 & 1263/2011 4 decree granted in O.S.384 of 1999 was set aside and the suit was dismissed. A decree was granted in O.S.349 of 1999 declaring the absolute rights of the respondent to the plaint schedule property. Appellants were directed to surrender vacant possession of the building within two months. The decree is challenged in these appeals. 3. Learned counsel appearing for the appellants was heard. The argument of the learned counsel is that though first appellate court found that Ext.B4 will was not executed by the testator in the presence of two witnesses as provided under Section 63 of Indian Succession Act, evidence of DW2, the attesting witness and DW3, the scribe would establish that the testator executed Ext.B4 will in their presence and they in turn affixed their signatures in the presence of the testator and in such circumstances, first appellate court was not justified in reversing the findings of the learned Munsiff. Reliance was placed on the decision of Apex Court in **Mathew Oommen v. Susheela Mathew** (2006(1) KLT 626) and **S.R.Srinivasa V, S.Padmavathamma** (2010 ALLSCR 1582). It was argued that Mathew Oommen's case (supra) was an identical case and RSA 869 & 1263/2011 5 Honourable Supreme Court has accepted the signature of the scribe of the will for valid attestation of the will and in such circumstances, first appellate court was not justified in holding that Ext.B4 will is not valid. Learned counsel relying on the decision in Srinivasa's case argued that the earlier decision of the Apex court in **Jaswant Kaur V. Amirit Kaur** (1977(1) SCC 369) was reiterated by their Lordships and based on the settled law, first appellate court was not justified in not upholding Ext.B4 will. 4. The whole dispute centres around the genuineness and validity of Ext.B4 will. The testator Kochupennu was admittedly having one half right. Respondent her son is admittedly entitled to the remaining one half right. If Kochupennu died intestate, as contended by the respondent, he would get absolute right. On the other hand, if Ext.B4 will is valid, first appellant would get the one half right of Kochupennu. Ext.B4 will, a copy of which was made available by the learned counsel, show that after the signature of the testator DW2, Ramesan affixed his signature and thereafter DW3, the scribe has affixed his signature describing himself as the scribe who prepared the will. The argument of the learned counsel is that when DW3 has affixed his signature as a RSA 869 & 1263/2011 6 witness, who prepared the will, it is to be taken that the scribe attested the execution of the will with the necessary animus. Learned counsel also argued that the evidence of DW3 shows that the testator had signed in Ext.B4 in his presence and he in turn, affixed his signature in the presence of the testator. 5. The details of the will considered by the Honourable Supreme Court in Mathew Oommen's case (supra) show that the testator was an Advocate practising at Mavelikkara. After affixing his signature by the testator, it is seen signed by two witnesses. First witness was another Advocate who had also written the will. But it was not shown specifically that he is a witness in addition to being the scribe. The second witness has affixed his signature as “2. witness”. The Advocate witness was shown as No.1 and other witness as No.2, evidently witnesses 1 and 2. Honourable Supreme Court interpreting the will held that the scribe could also be an attesting witness and what is necessary is the animus to be an attesting witness. The fact that the scribe had signed first and thereafter the second witness signed show that the scribe had the intention to attest the will. Moreover when the scribe was examined, he had deposed that he signed in the will, RSA 869 & 1263/2011 7 as the attesting witness also. It is in such circumstances, the Honourable Supreme Court upheld the will accepting the signature of the first witness as that of the first attesting witness. 6. In Srinivas's case (supra) reiterating the position laid earlier in Jaswant Kaur V.Amirit Kaur ( 1977 (1) SCC 369) it was held that a will has to be proved like any other document and the test to be applied is the usual test of satisfaction of the prudent mind in such matters. As in the case of proof of other documents, one cannot insist on proof with mathematical certainty in the case of proof of wills also. It was further held that as provided under Section 63 of Indian Succession Act, the requirement is that will is to be attested by at least two witnesses and under Section 68 of Indian Evidence Act, at least one of the attesting witnesses, if alive, is to be examined and normally, the onus which lies on the propounder could be taken to be discharged on proof of the essential facts which go into the making of the will. It was also held that the test of judicial conscience involved emphasis that in determining the question as to whether the instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and RSA 869 & 1263/2011 8 by reason of suspicious circumstances, the court has to be satisfied fully that the will has been validly executed by the testator. Though learned counsel vehemently argued that evidence of DW3 establishes that the testator signed before him and he affixed his signature in the presence of the testator and therefore it satisfies the requirement provided under Section 63 of Indian Succession Act, the question is whether evidence of DW3 establishes that he has the necessary animus to attest the execution of the will. The chief examination of DW3 shows that his claim was only that as instructed by Kochupennu, the testator, he prepared Ext.B4 will in his own handwriting. He further deposed that he had signed in Ext.B4 as the person who prepared the will. Though learned counsel argued that it is to be taken as an evidence that he had the necessary animus to attest the will, when even DW3 has no such case, I cannot accept the submission. In cross examination also, DW3 has no case that, he had the necessary animus to attest the execution of Ext.B4 will or had affixed his signature in Ext.B4 will, as an attesting witness to the execution. Though a scribe of the document could also be an attesting witness to the execution, the document must show that RSA 869 & 1263/2011 9 he affixed his signature not as the scribe alone but as an attesting witness also. In any case, his evidence must show that he affixed his signature as one of the attesting witnesses. That is not the case herein. In the light of the evidence, first appellate court was perfectly correct in holding that Ext.B4 will is not valid, in view of Section 63 of Indian Succession Act. Though learned counsel argued that it is not the requirement of law that a will is to be scribed by a licensed document writer and therefore DW3 could be be treated as only as an attesting witness, when even DW3 has no such case, learned counsel is not entitled to canvass such a position. I find no substantial question of law involved in the appeals. Appeals are dismissed. ## M.SASIDHARAN NAMBIAR, JUDGE lgk