Ethamkandiyil Appukutty Kurup and Others v. Savithri Amma and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI THURSDAY, THE 15TH DAY OF FEBRUARY 2018 / 26TH MAGHA, 1939 AFA.No. 9 of 2001 AGAINST THE JUDGMENT IN A.S.NO.165/1989 OF HIGH COURT OF KERALA DATED 18.03.1999 AGAINST THE JUDGMENT IN O.S.NO.21/1986 OF SUB COURT, BADAGARA) ## **APPELLANTS/RESPONDENTS 1,2,4 TO 10 & 12:** 1. ETHAMKANDIYIL APPUKUTTA KURUP, MUTHANTHARADA PUTHUSSERI, CHEKKIYYADE AMSOM, DESOM, BADAGARA TALUK. (DIED) 2. MADATHIL POYIL E.K.LAKSHMIKUTTY AMMA, KARTHIKAPPALLY AMSOM, KURINGALIYODE DESOM, BADAGARA. (DIED) 3. ETHAMKANDIYIL E.K.NARAYANA KURUP, EYYANKODE AMSOM, DESOM. 4. ETHAMKANDIYIL KAMALAM -DO-. 5. ETHAMKANDIYIL PRAVEEN (MINOR), REPRESENTED BY 4TH APPELLANT. 6. ETHAMKANDIYIL PRASEETHA (MINOR) -DO-DO-. 7. VAMPARA KUNIYIL MADHAVI AMMA, MUTHUNGAL AMSOM, RAYARANGOTH. 8. PUTHIYADATH KEYALAM JANARDHANA KURUP, VANNIPARAKUNIYIL, RAYARANGOTH. 9. DIVAKARA KURUP, -DO-. 10. MARUTHAM KUNNATH RAGOOTHAMAN, EYYANKODE AMSOM, DESOM. ## **ADDITIONAL APPELLANTS:** 11. SMT. JANU AMMA, W/O. LATE APPUKUTTA KURUP, NADUVILLA PUTHUSSERY, CHEKKIYYADE AMSOM, DESOM, VATAKARA TALUK. 12. SOMAN, S/O. LATE APPUKUTTA KURUP, NADUVILLA PUTHUSSERY, CHEKKIYYADE AMSOM, DESOM, VATAKARA TALUK. 13. BABY USHA, D/O. LATE APPUKUTTA KURUP, NADUVILLA PUTHUSSERY, CHEKKIYYADE AMSOM, DESOM, VATAKARA TALUK. AFA9/2001 -2- 14. RAJEEV, S/O. LATE APPUKUTTA KURUP, NADUVILLA PUTHUSSERY, CHEKKIYYADE AMSOM, DESOM, VATAKARA TALUK. 15. INDIRA, D/O. LATE APPUKUTTA KURUP, NADUVILLA PUTHUSSERY, CHEKKIYYADE AMSOM, DESOM, VATAKARA TALUK. 16. UNNIKRISHNAN, S/O. LATE APPUKUTTA KURUP, NADUVILLA PUTHUSSERY, CHEKKIYYADE AMSOM, DESOM, VATAKARA TALUK. 17. REGHUNATH, S/O. LATE APPUKUTTA KURUP, NADUVILLA PUTHUSSERY, CHEKKIYYADE AMSOM, DESOM, VATAKARA TALUK. 18. MADATHIL POYIL PRABHAKARAN, S/O. LATE E.K.LAKSHMIKUTTY AMMA, KARTHIKAPPALLY AMSOM, KURINGALIYODE DESOM, VATAKARA TALUK. 19. KARUNAKARAN, S/O. LATE E.K.LAKSHMIKUTTY AMMA, KARTHIKAPPALLY AMSOM, KURINGALIYODE DESOM, VATAKARA TALUK. 20. MOHANAN, S/O. LATE LAKSHMIKUTTY AMMA, KARTHIKAPPALLY AMSOM, KURINGALIYODE DESOM, VATAKARA TALUK. 21. LATHA, D/O. LATE LAKSHMIKUTTY AMMA, KARTHIKAPPALLY AMSOM, KURINGALIYODE DESOM, VATAKARA TALUK. (APPELLANT NOS.8 AND 9 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE 7TH APPELLANT AS PER ORDER DATED 7.10.2016 IN AFA.NO.9/2001) (ADDITIONAL APPELLANT NOS.11 TO 17 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE 1ST APPELLANT AS PER ORDER DATED 7.10.2016 IN I.A.NO.3496/2016) (ADDITIONAL APPELLANT NOS.18 TO 21 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE 2ND APPELLANT AS PER ORDER DATED 7.10.2016 IN I.A.NO.3494/2016) BY ADV.SRI.R.PARTHASARATHY ## **RESPONDENTS/APPELLANTS 1 TO 4 & LEGAL REPRESENTATIVES OF THE 3RD RESPONDENT IN A.S.NO.165/89 WHO DIED ON 11.11.98 & 11TH RESPONDENT:** 1. KOYILOTHUM THARAMEL PARKUM PARAMBATH SAVITHRI AMMA, KAVILUMPARA AMSOM, DESOM, BADAGARA TALUK. 2. PRABHAVATHI -DO-. 3. PREMALATHA (MINOR) REPRESENTED BY 1ST RESPONDENT. 4. PRIYAMVADHA (MINOR) -DO-. 5. RAJESH, 11/1 DEVA NAIDU STREET (UPSTAIRS), SAIDOPET, MADRAS – 600 015. AFA9/2001 -3- 6. REEJA, 11/1, DEVA NAIDU STREET(UPSTAIRS), SAIDOPET, MADRAS – 600 015. 7. RAMESH -DO-. 8. REENA -DO-. 9. THE MANAGER, CANARA BANK, NADAPURAM BRANCH. - R1 TO R4 BY SENIOR ADVOCATE SRI.V.V.ASOKAN ADV. SMT.AMINA.S R9 BY ADV. SMT.SHAHNA KARTHIKEYAN BY ADV. SRI.M.P.SREEKRISHNAN THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 09-02-2018, THE COURT ON 15-02-2018 DELIVERED THE FOLLOWING: “C.R.” ## V. CHITAMBARESH & R. NARAYANA PISHARADI, JJ. = = = = = = = = = = = = = = = = = = = = = = = = ## A.F.A.No. 9 of 2001 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 15[th] day of February, 2018 ## Judgment ## Chitambaresh, J. 1.“ I bequeath everything to my wife ” were all written by a renowned lawyer in his letter pad attested by two of his juniors to operate as a bequest under a Will. There is no insistence in law that a Will should contain a schedule which is often added to the body of the deed for clarity. Nevertheless the schedule added forms an integral part of the deed which cannot at all be divorced from the body in construing a Will. AFA9/2001 -: 2 :- 2.Ramunni Kurup had six children in his first wife who are defendants 1 to 4, Kunhirama Kurup and Kunhikrishna Kurup. Defendants 9 and 10 are his children born in the eighth defendant who is the second wife of Ramunni Kurup. Kunhirama Kurup predeceased Ramunni Kurup and his legal heirs who are the widow and children are the plaintiffs in the suit. Defendants 5 to 7 are the children of Kunhikrishna Kurup who died after the death of Ramunni Kurup – the common ancestor. It is on this premise did the plaintiffs claim 1/9[th] share over the plaint schedule property belonging to Ramunni Kurup. - 3.The defendants set up Ext.B1 Will dated 31.12.1977 alleged to have been executed by Ramunni Kurup who died only on 2.4.1981. The plaint schedule property has been bequeathed thereunder to defendants 1 to 4, Kunhikrishna Kurup and defendants 9 and 10. The plaintiffs have been excluded under Ext. B1 Will which has prompted them to AFA9/2001 -: 3 :- challenge it as not valid and genuine. The trial court upheld Ext.B1 Will and dismissed the suit which has been interfered with in appeal by the plaintiffs. The learned single Judge remanded the suit for better evidence as regards the due attestation of Ext.B1 Will. 4.We heard Mr. Parthasarathy, Advocate on behalf of appellants/defendants and Mr. V.V.Asokan, Senior Advocate on behalf of the respondents/plaintiffs. 5.Ext.B1 Will reveals that the recitals in the body consume the first four pages and the schedule starting from the middle of the fourth page ends in the ninth page. The testator has signed in all the pages and the attesting witnesses have subscribed their signature in pages 5 to 9. The recitals in the body of Ext.B1 Will end by stating that the same is executed in the presence of the attesting witnesses named below. The learned single Judge has in the impugned AFA9/2001 -: 4 :- ## judgment observed thus: “Normally, the attestation will appear only in one page. I don't know, how the attestors and the executant had signed in a number of pages. ….......A perusal of the Will shows that the attestation was only in the schedule and not in the main part of the Will.” We are surprised at this finding when Section 63(c) of the Indian Succession Act, 1925 clarifies that 'no particular form of attestation shall be necessary'. The schedule indicating the property bequeathed forms an integral part of a Will which cannot be divorced from its body. Of course the recitals in the body will prevail over the schedule in the Will in case of conflict which is not there. The attestation at the end after the schedule to Ext.B1 Will exhibits the animus attestandi of the witnesses. We are not prepared to hold that the attestation to Ext.B1 Will is insufficient in law warranting AFA9/2001 -: 5 :- a further proof on that issue. 6.The fourth defendant was examined as DW1 and one of the attesting witnesses who is a retired school teacher was examined as DW2. The witness testified that he saw the testator signing the Will and that the testator saw him and another attesting the same. DW2 is a relative of the testator and had partaked in the measurement of the property before it was bequeathed. There is nothing to disbelieve the evidence of DW2 and the trial court has had the advantage of watching his demeanour. DW2 would be 92 years old now (if alive) and no useful purpose would be served by reexamining him after remand. The decision in Mangal Singh and others v. Nathu Singh and others [(1998) 8 SCC 598] relied on is distinguishable. That was a case where the thumbmark of the testator and the signature of the attesting witnesses appeared in line with one another. It was therefore held that there was no proper execution and due attestation AFA9/2001 -: 6 :- in the absence of plausible explanation. The attestation to Ext.B1 Will was beneath the signature of the testator and conforms to the statutory prescriptions. 7.It is contended that the disposition in Ext.B1 Will is unnatural and inequitable inasmuch as the plaintiffs who are also legal heirs are excluded thereunder. This is resisted by the defendants by contending that the testator had provided the plaintiffs with money and discharged their debts. The testator had sold 40 cents of land under Ext.X1 deed and a portion of the sale proceeds was utilised to discharge debts. Ext.X2 loan ledger of the Service Co-operative Bank and Ext.X2(a) entry as regards the discharge of loan prima facie support this plea. It is also the case of the defendants that the testator withdrew a sum of `5000/- from out of the above sale proceeds. And that the amount was put in fixed deposit in the name of the first plaintiff as reflected by Ext.X5 application and Ext.X4 receipt. The trial court has AFA9/2001 -: 7 :- meticulously analysed the documents and found that it contains the signature of one and the same person. No contra evidence has been adduced by the plaintiffs and none of them have even chosen to mount the box. The burden was heavy on the plaintiffs to show that they have not been provided anything by the testator. 8.It is possible that the testator would have applied the sale proceeds for the benefit of the plaintiffs who are the widow and children of his son. The pre-deceased son had incurred liability and at least one such debt was discharged by the testator borne out by Ext.X2(a) entry. That the testator himself had spoken about his intention to DW2 is explicit from his oral testimony which cannot but be believed. The testator even told DW2 that a sale by himself is necessitated since it would be difficult to alienate the share of minors later. The mere fact that Ext.B1 Will was executed three weeks after the death of Kunhirama Kurup on 7.12.1977 AFA9/2001 -: 8 :- does not raise any suspicion. Exts.B4 and B5 counterfoils show that the testator was operating his bank account long after the execution of Ext.B1 Will even. There can be no doubt about the mental capacity of the testator and his disposition in Ext.B1 Will is entitled to credence. After all the very purpose of executing a Will is to alter the normal devolution of the property after the death of the testator. No vitiating circumstances have been pointed out by the plaintiffs to discredit Ext.B1 Will whereunder they are disinherited. 9.The suspicious circumstances if any that surround the due execution of Ext.B1 Will have been dispelled by the defendants successfully. More than thirty years have elapsed since the commencement of the litigation and no further opportunity need be given to the plaintiffs. (In fact the case records are irretrievably lost and the appeal is disposed of on the basis of certified copy supplied by counsel). The AFA9/2001 -: 9 :- defendants being the legatees are competent to deal with the property bequeathed as they like. Defendants 9 and 10 were also competent to alienate the property allotted to them to the twelfth defendant under Ext.B9 sale deed. A remand of the suit is wholly unnecessary and we are persuaded to uphold the due execution of Ext.B1 registered Will for reasons aforementioned. We set aside the judgment of the learned single Judge and restore the judgment of the trial court dismissing the suit. The Appeal against First Appeal is allowed. No costs. Sd/V. CHITAMBARESH, JUDGE Sd/R. NARAYANA PISHARADI, JUDGE Sha/120218