K.P. Leela Menon v. K.P. Rajagopala Menon and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 14TH JULY 2011 / 23RD ASHADHA 1933 SA.No. 647 of 1997(B) --------------------AS.227/1992 of ADDL.DISTRICT COURT, KOZHIKODE OS.166/1987 of I ADDL.SUB COURT, KOZHIKODE .................... APPELLANT(S)/RESPONDENT NO.1/PLAINTIFF: ------------------------------------------------------------------ K.P.LEELA MENON, PANNIYANKAA AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.R.D.SHENOY, SENIOR ADVOCATE SRI.G.UNNIKRISHNON SRI.G.P.SHINOD SRI.P.V.RAMESH SHANKAR RESPONDENT(S)/APPELLANT & RESPONDENTS 3 TO 5/DEFENDANTS 2, 3 & 4 AND THE LRS OF DEFENDANT NO.1.: ------------------------------------------------------------------------------------------------ 1. K.P.RAJAGOPALA MENON, PANNIAKARA AMSOM DESOM, KOZNIKODE TALUK. 2. K.P. RADHA MENON, DO. DO. 3. K.P. RAMACHANDRAN MENON, DO. DO. (DIED) 4. GEETHA, D/O. K.P. PANKAJAM ALIAS THANKAM, GREEN VIEW,WATER FIELD ROAD, 1ST CORNER, BANDRA, BOMBAY-50. ADDL. R5 & 6 IMPLEADED. 5. INDIRA, WIFE OF K.P. RAMACHANDRA MENON, RESIDING AT NEW VIRENDRA APARTMENTS, C.H.S. LTD. FLAT NO.601, PLOT NO, 384, 1ST ROAD, KHAR (W), NEAR JAIN ARCADE, MUMBAI-400 052. 6. MEGHALA, DAUGHTER OF K.P. RAMACHANDRAN, RESIDIN AT NEW VIRENDRA APARTMENTS, C.H.S. LTD. FLAT NO.601, PLOT NO, 384, 1ST ROAD, KHAR (W), NEAR JAIN ARCADE, MUMBAI-400 052. ADDL. R5 & R6 IMPLEADED AS PER ORDER DATED 14.7.2011 IN I.A. 3305 OF 2010. ADV. SRI.O.RAMACHANDRAN NAMBIAR R2 TO R4 SMT.PRASANNA H.KAMATH SRI.V.V.SURENDRAN FOR R1 SRI.P.A.HARISH FOR R1 SMT.RESMI NANDANAN FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27/06/2011, THE COURT ON 14/07/2011 DELIVERED THE FOLLOWING: ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 647 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of July, 2011. ## **JUDGMENT** The plaintiff in O.S.166 of 1987 before the Sub Court, Kozhikode is the appellant. She was non-suited by the lower appellate court. 2. According to the plaintiff the plaint schedule property was purchased utilizing the funds of the plaintiff and defendants 1 to 3 in the name of Smt.Lakshmikutty Amma, who is none other than their mother. Since they were staying outside Kerala, the mother was looking after the properties. The mother did not have the financial capacity to purchase the property. Infact the plaintiff had deposited Rs.3,00,000/- in the name of her mother and fourth respondent and they were allowed to take interest for their personal expenses. The mother had no right over the suit property and she was only a benamidar in respect of the property. After the death of 2 S.A.647/1997. their mother, the plaintiff demanded partition, but the defendants were not in a mood to accede to the request of the plaintiff. Even though the fourth defendant had no manner of right over the suit property, for a proper adjudication, he too was made a party. It is alleged that the fourth defendant had instituted O.S.438 of 1987, which was a suit for injunction and had obtained an interim injunction on the basis of a Will said to have been executed in his favour. The Will is not a genuine document and is a concocted one. The mother of the plaintiff did not have the necessary testamentary capacity to execute the Will at the relevant time. There is no reason as to why special favour should be shown to the fourth defendant in preference to the plaintiff and defendants 1 to 3. On the basis of these allegations, the suit was laid for partition. 3. Defendants 1 to 3 supported the plaintiff. The fourth defendant contested the suit. He pointed out that the suit property was purchased by Smt.Lakshmikutty Amma, the mother of the plaintiff and defendants, using her own S.A.647/1997. 3 funds and she was the owner of the property. She has executed a Will on 14.3.1978, by which she bequeathed the plaint schedule property in favour of the fourth defendant. After the death of Smt.Lakshmikutty Amma, in pursuance of the Will the fourth defendant is in possession and enjoyment of the property. Pointing out that the plaintiff and defendants 1 to 3 have no manner of right over the suit property, he prayed for a dismissal of the suit. 4. On the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A12 from the side of the plaintiff. The defendants had D.Ws. 1 to 3 examined and Exts.B1 to B5 marked. On an evaluation of the evidence in the case, the trial court came to the following conclusions: i) The plea of benami put forward by the plaintiff and defendants 1 to 3 were not proved. ii) Smt. Lakshmikutty Amma had the testamentary capacity at the time of alleged execution of the Will. S.A.647/1997. 4 iii) The house name of the testator shown in Ext.B2 Will is wrong. iv) On a comparison of the oral evidence with the recital in Ext.B2 Will, quite a few of the recitals in Ext.B2 are found to be incorrect and false. v) Had the testator infact executed the Will, those glaring mistakes would not have occurred in the Will. vi) The execution of the Will is not duly proved. vii) The execution of the Will is surrounded by suspicious circumstances. On the basis of these findings, the Will was found against and the suit was decreed and a preliminary decree was passed. 5. The fourth defendant took up the matter in appeal as A.S.227 of 1992. The lower appellate court while confirming the finding regarding benami in favour of the fourth defendant, disagreed with the trial court as regards the finding regarding Ext.B2 Will. The lower appellate court found : S.A.647/1997. 5 i) The testator had the necessary testamentary capacity. ii) Though the statement regarding marriage of the plaintiff may not be as such correct going by the recital in Ext.B2, the evidence shows that she was living with a person by name Senith. iii) The recital regarding the marital life of the second defendant though would appear to be wrong, may be it is possible that the mother was not aware of the death of the husband of the second defendant. The lower appellate court also found that in the written statement of the second defendant there was no averment to the effect that her husband died in 1977. So the discrepancy in the recital in the Will is not of much consequence. The description of third defendant as an official man need not be taken very seriously though it may be wrong. 6. The lower appellate court also found that the evidence of D.W.2, one of the attesting witnesses to Ext.B2 S.A.647/1997. 6 Will, is sufficient to show that the Will was duly executed. Holding so, the Will was found good and genuine and therefore the judgment and decree of the trial court was reversed and the suit stood dismissed. 7. Notice is seen issued on the following questions of law: _“a) Did not the lower appellate court act contrary to law in reversing the findings of the trial court on the issue regarding the proof and genuineness of Ext.B2 Will? Are not the findings of the court below on this count contrary to law?_ _b) Is not the findings of the court below that deceased Lakshmikutty Amma had title to the property and that the suit property was not held by her benami for plaintiff and defendants 1 to 3 contrary to law?_ _c) Is not the issue regarding the genuineness of Ext.B2 Will concluded as against defendant No.4 by the decree in O.S.438/87 of the Munsiff's Court, Kozhikode?”_ S.A.647/1997. 7 8. Learned counsel appearing for the appellant contended that the lower appellate court has grievously erred itself in coming to the conclusion that due execution of the Will has been proved. The evidence of D.W.2, according to the learned counsel, is insufficient to show that the Will was duly executed by the testator. Evidence of this witness has not been appreciated in the proper perspective and that has resulted in holding that the Will is genuine. Further, it was contended that quite a few of the recitals in the Will are found to be patently false and that should have alerted the lower appellate court before holding that the Will was genuine. Learned counsel drew the attention of this court to the date of the Will, i.e., 14.3.1978 and contended that normally it will be presumed that the document will be executed on the date it bears. However, the evidence of D.W.2 shows that the signature of the testator was put in the document only on 16.3.1978. Many of the vital aspects which would show that the Will is open to serious suspicion were brushed aside by the lower appellate court either by S.A.647/1997. 8 saying that they are not covered by the pleadings or that they are not of much consequence. The lower appellate court has failed to appreciate the contentions raised before it regarding the suspicious nature of Ext.B2 Will. The specific plea of the appellant was that Ext.B2 will was not executed as alleged and the testator was unaware of its contents. 9. Learned counsel appearing for the appellants went on to contend that the person who had a major role to play in the drawing up of the Will and attestation was deliberately not examined. The evidence of D.W.2, who is one of the attestors, is totally insufficient and unacceptable. Crucial recitals in Ext.B2 are found to be wrong. One cannot believe that the said statements could have been incorporated had the testator known the contents of the document. The lower appellate court has failed to note that there are several suspicious circumstances which would show that the Will was infact not executed by the testator. The lower appellate court has failed to note the law S.A.647/1997. 9 regarding proof of the Wills and that has resulted in miscarriage of justice. Learned counsel contended that it is well settled that the burden is on the propounder to prove the due execution of the Will and also to remove any suspicious circumstance surrounding the execution of the Will. Learned counsel went on to contend that one fails to understand the observation of the lower appellate court that even if the vital recitals in Ext.B2 are wrong, one need not give much significance to the same. The reasoning given for holding so, according to the learned counsel, is even more curious. According to the lower appellate court, had the document been a manipulated one, it would have been manipulated to perfection and such defects would not have occurred. On the other hand, according to the the lower appellate court false recitals in the Will are guarantee for its genuineness. Learned counsel went on to contend that the judgment of the lower appellate court is perverse and unwarranted by the evidence on record and it needs to be set aside. S.A.647/1997. 10 10. Learned counsel appearing for the contesting respondents in this appeal on the other hand contended that the lower appellate court has considered each of the circumstances highlighted by the plaintiff regarding the suspicious nature of the Will and has found that there is no basis for such suspicion. On an appreciation of the evidence in the case, the lower appellate court found that the Will had been duly executed and it is a genuine document. Learned counsel went on to highlight that the appellant did not in either of the courts below contend that there was want of proof regarding the due execution of the Will. Such a contention is raised for the first time before this court in Second Appeal. May be that there are some slight errors in the Will but they are not fatal. By the evidence of D.W.2 it is proved that Ext.B2 Will was infact executed by Smt.Lakshmikutty Amma. The lower appellate court has considered the law regarding proof of the Will and has come to the conclusion that Ext.B2 is a genuine document. It is essentially a finding of fact. Learned counsel also contended S.A.647/1997. 11 that no substantial question of law arises for consideration. 11. After going through the records and on hearing learned counsel on either side it is found that two points arise for consideration. They are, (i) Whether the plaintiff has been able to show that the purchase in the name of Lakshmikutty Amma is a benami one, and - (ii) Whether Ext.B2 Will is a genuine document. ## Point No.1 12. Both the courts below have concurrently found that there is absolutely no evidence to show that for the purchase of property by Smt.Lakshmikutty Amma the fund flowed from plaintiff and defendants 1 to 3. The evidence in this regard was furnished by P.W.1 and D.W.3. They claimed that the property was purchased utilizing the fund of plaintiff and defendants 1 to 3 and Smt.Lakshmikutty Amma had no fund of her own. As already stated, neither the plaintiff nor defendants 1 to 3 were able to produce any S.A.647/1997. 12 document to show that they had spend the money for the purchase. Even though it is claimed that a huge amount was deposited in the name of Smt.Lakshmikutty Amma for her livelihood, there is no proof in that regard also. Even assuming that the funds were made available to Smt.Lakshmikutty Amma for her maintenance and had she saved amount so given to her and purchased the property, then also the transaction cannot be termed as a benami purchase. Neither P.W.1 nor D.W.3 were able to say anything regarding the price of the property, location of the property, details of the transaction etc. It has also come out in evidence that Smt.Lakshmikutty Amma was taking income from the property and at no point of time any portion of the income was given to the plaintiff or defendants 1 to 3. Even though P.W.1 and D.W.3 asserted that they have documents to prove their claim, they were unable to produce any such document. It appears that Smt.Lakshmikutty Amma had leased out the property and was receiving the rent. Neither P.W.1 nor D.W.3 has given S.A.647/1997. 13 details of the lease arrangement also. Neither the plaintiff nor defendants 1 to 3 were able to give any satisfactory explanation as to why there should be a benami purchase. In the case of benami purchase, usually the real owner retains the original of the title deed. In the case on hand, from the evidence of P.W.1 and D.W.3 it can be seen that they never had the original title deed of the property. The evidence clearly showed that the purchase was utilizing the funds of Smt.Lakshmikutty Amma and she was in possession and enjoyment of the property and she was dealing with the property as her own. On the basis of these items of evidence, the claim of benami purchase is without any foundation. The courts below found rightly against the said plea. Point No.2 13. The next question is whether the due execution of the Will has been proved and whether any suspicious circumstance exists surrounding the execution of the Will, and if there are, have they been satisfactorily S.A.647/1997. 14 explained to the satisfaction of the court by the propounder. The law regarding proof of Wills is well settled. Section 63 of the Indian Succession Act deals with the manner of drawing up of a Will and Section 68 of the Indian Evidence Act deals with its proof. Decisions are legion in this regard. The lower appellate court has referred to the decision reported in **H.Venkatachala Iyengar v. B.N. Thimmajamma** (AIR 1959 SC 443). One may also refer to the decisions reported in **Meenakshiammal v. Chandrasekharan** (AIR 2005 SC 52), **Benga Behera v. Braja Kishore Nanda** (AIR 2007 SC 1975), **Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao** (AIR 2007 SC 614). 14. It is by now well settled that to prove the due execution of the Will when there is a dispute regarding the Will, atleast one of the attesting witnesses will have to be examined. He will have to prove the due execution of the Will. The burden is on the propounder to prove the due execution of the Will. It is for him to show that the Will was infact executed by the testator and the testator had the S.A.647/1997. 15 necessary testamentary capacity at the time of execution of the Will. Added to the above, the burden is on the propounder to remove suspicious circumstance, if there exists any. What constitute suspicious circumstance differs from case to case. Some of the circumstances that are highlighted are as follows: i) Propounder took part in the execution of the Will and he is the sole recipient of the legacy. ii) The disposition made in the Will by the testator are unnatural, unfair, improper and improbable. iii) The recitals in the Will do not appear to be correct. iv) The testamentary capacity of the testator is in serious doubt. 15. The above are only illustrative and not exhaustive. As already stated each case will have to be determined on the facts of the said case and no precedents is of much help in this regard. 16. Bearing the above principles in mind, one may now have a scrutiny of the contents of Ext.B2 Will. S.A.647/1997. 16 17. As already noticed, D.W.2 is one of the attesting witnesses, who proved the due execution of the Will. The trial court found his evidence to be in insufficient to prove the due execution of the Will and also that there are certain recitals in the Will which would not have occurred had the contents be known to the testator. The lower appellate court on the other hand found the evidence of D.W.2 to be sufficient and also held that the so-called wrong recitals are of not much consequence. 18. Of course, D.W.2 does speak about the execution of the Will. His evidence needs to be referred to. He would say that he was called to the house of Adv.Leelavathi. When he went there, he found Sri.Aravindaksha Menon and Smt.Lakshmikutty Amma were present there. He claims that Smt. Lakshmikutty Amma gave him the details for the preparation of the Will and he had got the draft approved by his uncle Sri.Sreedharan Nair, because, he did not have a scribe's license. He would say that the the details for drawing up of the draft was narrated S.A.647/1997. 17 by him to Sri. Sreedharan Nair. After preparing the draft, he does not exactly remember whether it was handed over to Sri. Aravindaksha Menon or to Adv.Leelavathi. However, he deposed that draft was brought back to him by Sri.Aravindaksha Menon and fair was prepared. His evidence shows that Smt.Lakshmikutty Amma signed the Will in the veranda of the Registrar's office. He does speak about the attesting witnesses signing the Will in the presence of the testator and _vis-a-vis_ . He also speaks about the testamentary capacity of the testator. According to him, Smt. Lakshmikutty Amma had a sound disposing state of mind at the relevant time. 19. The evidence of D.W.1 is of no help in this regard though he is the propounder of the Will. He feigns ignorance regarding the drawing up of the Will and he deposed that he came to know about the existence of the Will two years prior to the death of his mother when the mother disclosed the fact to him. S.A.647/1997. 18 20. The evidence discloses that at the time when the details for drawing up of the Will was narrated by Smt.Lakshmikutty Amma to D.W.2, Adv.Leelavathi and Sri.Aravindaksha Menon were present. From the evidence of D.W.2 it is seen that since he was not a licensed scribe, he got the draft prepared through his uncle Sri.Sreedharan Nair. The details of the contents of the Will were given to Sri.Sreedharan Nair by him. His evidence disclosed that Smt.Lakshmikutty Amma had not met Sri.Sreedharan Nair at all. The further evidence of D.W.2 is to the effect that he had asked Smt.Lakshmikutty Amma to come to the Registrar's office and she had come and signed the Will. D.W.2 does say that Ext.B2 was read over to Smt.Lakshmikutty Amma from the veranda of the Registrar's office and thereafter she had signed the same. 21. It is significant to notice that the date on which Smt.Lakshmikutty Amma had to come for execution of the Will was pre-determined. If so, normally the Will would have contained the date on which she was asked to come S.A.647/1997. 19 for execution of the Will. In the case on hand, going by the evidence of D.W.2 she was asked to come on 16.3.1978, and normally the Will should have borne the date 16.3.1978. However, no satisfactory explanation could be offered by D.W.2 as to why the Will was dated 14.3.1978 when he was aware of the fact that Smt.Lakshmikutty Amma was asked to come to sign the document on 16.3.1978. In the decision reported in **Focker v. Khalid** (1973 K.L.T. 540) it was held that normally it will be presumed that the document is executed on the date it bears. 22. The evidence disclosed that it was Sri.Sreedharan Nair, who prepared the draft and details were given by D.W.2. One is unable to ascertain whether the details given by D.W.2 to Sri.Sreedharan Nair is the same given by Smt.Lakshmikutty Amma to D.W.2. As already noticed the evidence of D.W.2 is to the effect that she had signed Ext.B2 from the veranda of Registrar's office. According to D.W.2 he reached the Registrar's office by about 11-11.15 a.m. on 16.3.1978. He took about one and S.A.647/1997. 20 a half hours to read out the document to Smt.Lakshmikutty Amma and for the attesting witnesses to sign the document. He would say that thereafter it was presented for registration and he did not accompany the testator to the Registrar's office. D.W.2 says that he does not know whether the draft was made available to Smt.Lakshmikutty Amma for perusal and whether she had approved the same. His evidence is to the effect that the draft was brought back by Sri.Aravindaksha Menon. It was he who told Sri.Aravindaksha Menon to inform Smt.Lakshmkutty Amma to come to the Registrar's office on 16.3.1978. 23. As already noticed, when the date was fixed as 16.3.1978, one fails to understand how Ext.B2 could have been dated 14.3.1978. There was no reason for ante-dating the document. Though D.W.2 say it took nearly 1 ½ hours after he reached the Sub Registrar's office at 11.15-11.30 a.m. to present the deed for registration, the endorsement by the registering authority shows that the document was presented for registration at 11.15 a.m. S.A.647/1997. 21 24. Taken in isolation, the above discrepancies may not be of much significance. However, one cannot omit to note that none of the others who had knowledge about the Will, namely, Adv.Leelavathi or Sri.Aravindaksha Menon, or the scribe Sri.Sreedharan Nair was examined. There is nothing to show that the details given by D.W.2 to Sri.Sreedharan Nair is the same as the recitals given by Smt.Lakshmikutty Amma to D.W.2. The evidence of D.W.2 shows that the details were narrated by Smt.Lakshmikutty Amma in the presence of Adv.Leelavathi and Sri.Aravindaksha Menon. For reasons best known to the propounder, namely, D.W.1, he chose to examine neither of them. He has no case that they were not available for examination. Examination of atleast one of them would have lend credence to the Will. 25. Then again, the house name of Smt.Lakshmikutty Amma shown in Ext.B2 is 'Karimballi'. In Exts.B3 and B5, which are the admitted documents, her house name is shown as 'Keeramballi'. It is pointed out by S.A.647/1997. 22 the appellant that if as a matter of fact Smt.Lakshmikutty Amma had known the contents of the Will, the above error would not have occurred. This, according to the appellant, is a suspicious circumstance. 26. This again taken in isolation may not be of much consequence at all. One could assume that there is an accidental clerical mistake. 27. One may now come to the recitals in Ext.B2 Will, which has a bearing on the issue involved in this case. The relevant recital reads as follows: “എന�ക� അഞ��� സന�നങള ഉളത�ല മ�തമകന ര�മചന�ന ഉദ���ഗസന�" പ$ണമകള�യ $ങ� പമദന�ന� ല*ല�പമദന�ന, ര�ധ�പമദന�ന എന�വര ഭരത�കനമ�ദര�പ0�പ" സ �ഖമ�യ� �*വ�ക�നവര�" ആക �ന�. എന�ല ഏപനറ ഇളയമകന ര��ദഗ�$�ലന ശര*ര സ�ഖമ�ല�തവന�" ഉദ���ഗമ�ല�തവന�" യ�പത�ര� �*വ�തമ�ര:വ �" ഇല�തവന�മ�ക�ന�. എപന ന$�യ�ധ�ക;ത�ല ശ �ശ;ക�ക�നത�" എന�ക �ദവണ സകലക�ര;ങള�" $;വരത�ക �നത�" ഇളയമകന�യ ര��ദഗ�$�ലന മ�നതമ�ണ�.” S.A.647/1997. 23 (I have 5 children, among whom the eldest Ramachandran is an officer and my daughters are Pankaja Menon, Leela Menon and Radha Menon, who are residing happily with their husbands. However, my youngest son Rajagopalan is physically unfit and is unemployed and he has no means of income. In my advanced age he is looking after my affairs and he alone is looking after me.) 28. If the above recitals were true, the mere fact that the plaintiff and defendants 1 to 3 have been disinherited by itself is not a ground to suspect the Will. After all, the Will is intended to interfere with the normal course of succession and a wide discretion is vested with the testator to decide to whom the legacy should be made. Unless it is shown that there is some glaring anomaly in the choice of the legatee, the mere fact that some of the legal heirs are disinherited by itself is not sufficient to hold against the Will. 29. The evidence in this case shows that the daughters namely, Leela Menon and Pankaj Menon had left S.A.647/1997. 24 their mother while they were very young and they were staying with their uncle at Bombay. The specific recital in Ext.B2 is that the eldest son is an officer. The evidence disclosed that he was running a business and at no point of time was employed in any office. D.W.1, the propounder of the Will in no less terms admits that he was aware that the third defendant was doing business and also that the testator was fully aware of the marital status of her daughters. The evidence shows that the first defendant is residing in Bangalore and the third defendant is residing in Bombay along with the plaintiff and so is the plaintiff. They have been in Bombay for over 40 years. The evidence disclosed that the husband of the second defendant died in 1977 in a scooter accident. The evidence of D.W.1 is to the effect that the testator was a very capable lady and if that be so, she must have been aware of the true position of her children and their marital status. Going by the evidence of D.W.1 there is nothing to show that the relationship between the plaintiff and D.Ws.1 to 3 on one hand and their mother S.A.647/1997. 25 on the other hand was bitter. In fact D.W.1 admits in cross-examination that the plaintiff is a spinster. In cross examination, it was suggested to him that in the year 1977 the plaintiff did not have a husband. He admitted that it is so. But in re-examination he says that she was living with a man by name Senith. 30. The lower appellate court is of the opinion that since there is evidence of D.W.1 to show that the plaintiff was living with a man by name Senith, the recital in Ext.B2 is that she was residing with her husband happily in Bombay could have been made in that context and therefore need not be taken as a suspicious circumstance. 31. It is difficult to accept the above proposition. First of all there is nothing to show that the plaintiff had ever lived with a man by name Senith. D.W.1 came out with that point and there was no cross-examination on this point. But when plaintiff was examined as P.W.1 she stoutly denied the same and pointed out that she was remained S.A.647/1997. 26 unmarried. One is unable to simply brush aside the recital regarding P.W.1 in the Will so lightly. 32. The evidence of D.W.1 shows that till the death of Smt.Lakshmikutty Amma, her children and Smt.Lakshmikutty Amma were very cordial and affectionate to each other. He says that he came to know about the Will two years prior to the death of his mother when his mother told him. But in another portion of his evidence he would say that about four years prior to the death of his mother there was a quarrel between mother and other children. The other children had insisted that if their mother had written a Will, she should cancel the same. He would say that he overheard the others telling his mother that if she writes a Will, it shall not be in favour of one of the children alone. He claims that he had overheard the conversation between his mother and other children. If that be true, the earlier version that he came to know about the Will two years prior to the death of the mother cannot be easily accepted. S.A.647/1997. 27 33. As a result of a careful cross-examination, D.W.1 was constrained to admit that the recital about his plight in Ext.B2 is not fully correct. His evidence shows that he had income of his own at the relevant time. The trial court in paragraph 16 of its judgment considered this aspect in considerable detail. The lower appellate court on the other hand found that there is no sufficient evidence to show that D.W.1 had sufficient income of his own to have a comfortable life. The lower appellate court also takes note of the fact that it is not disputed that D.W.1 is handicapped. 34. It was the wrong recitals in the Will and also the insufficiency of evidence of D.W.2 which had compelled the trial court to take the view that the Will was not proved. 35. The lower appellate court justifies the recitals regarding the marital status of P.W.1 by virtue of the statement given by D.W.1 in his re-examination that the plaintiff was living with a person by name Senith. But there is nothing to show that the testator was aware of the same. However the evidence of D.W.1 clearly shows that the S.A.647/1997. 28 testator was fully aware that the plaintiff was not actually married. But D.W.1 claims that she was later told about the relationship between the plaintiff and the person by name Senith. 36. The lower appellate court found fault with the plaintiff for not cross-examining D.W.1 in this regard with respect to the statement given regarding the marital status of P.W.1 in re-examination. It is difficult to understand this view of the lower appellate court. In cross-examination D.W.1 had categorically admitted that the statement in the Will that the plaintiff was married is incorrect. In no less terms he admits that to his knowledge the plaintiff had no husband in 1978. This is important because the Will is seen to have been drawn up on 14.3.1978 and signed on 16.3.1978. The recital in Ext.B2 is that at the time of execution of the Will the plaintiff was happily residing with her husband in Bombay. As a matter of fact if one goes by the evidence of D.W.1 this is obviously false. S.A.647/1997. 29 37. Even assuming that there is a statement in the re-examination that the plaintiff was living with a person by name Senith, it can be of little significance since there is nothing to show that there is any marriage between them. In the light of the categoric statement given by D.W.1 in cross-examination the attempt to repair the damages done in re-examination can be of no avail. Re-examination is confined to clearing the ambiguity created in cross-examination. 38. As regards the statement that at the time of execution of the Will the second defendant was living happily with her husband was found to be wrong is of little significance, according to the lower appellate court, since there was no evidence adduced by the second defendant that her husband died in 1977. The lower appellate court further finds fault with the supporting defendants that they had not stated in their written statement that the husband of the second defendant died in 1977. S.A.647/1997. 30 39. Here one cannot omit to notice that when the propounder was examined as D.W.1, it was suggested that the husband of the second defendant died in 1977, D.W.1 did not deny the said fact. It is significant to notice that there is no suggestion to D.W.3, who is none other than the second defendant that her version that her husband died in 1977 was untrue and infact on the date of execution of the Will her husband was alive. In the light of the categoric statement made by D.W.3 at the time of evidence, the burden was on the propounder of the Will to show that the statement made by D.W.3 is incorrect. 40. The lower appellate court was more concerned with the signature of Smt.Lakshmikutty Amma in Ext.B2 and took immense pains to compare the signature of Smt.Lakshmikutty Amma in Ext.B2 with the admitted signatures by using a magnifying glass and then came to the conclusion that the signatures are almost similar. This exercise of the court undertaking the comparison of the signature is very seldom done and in the nature of the S.A.647/1997. 31 contentions put forward in this case it as an unnecessary exercise. The lower appellate court goes on to observe that if the documents were manipulated, it would have been manipulated to perfection, and would not have contained the statements seen contained in the document. Thereafter the lower appellate court placed considerable reliance on Section 60 of the Registration Act to find the genuineness of the Will. 41. It is well settled that registration by itself is a ground to hold that the Will is a genuine document. The due execution, attestation of the Will will have to be proved by independent evidence. Once that is done, the fact that the Will is a registered one is an added circumstance that goes in favour of the Will. In the case on hand inspite of the various suspicious circumstances it is significant to notice that none from the Sub Registrar's office was also examined to show that the Will is a genuine document. 42. The following circumstances are revealed from the evidence available in the case: S.A.647/1997. 32 i) The evidence of D.W.2 is insufficient to show that the draft was approved by Smt.Lakshmikutty Amma. ii) If D.W.2 had given a specific date, namely, 16.3.1978 for Smt.Lakshmikutty Amma to come for executing the Will, normally the deed would have been dated 16.3.1978 and not 14.3.1978. iii) The version of D.W.2 that he had reached the Sub Registrar's office by 11.15 -11.30 a.m. and thereafter Ext.B2 was read over to Smt.Lakshmikutty Amma and it took nearly 1-1 ½ hours for reading it out and putting the signature is belied by the fact that going by the endorsement on the reverse of page 1 of Ext.B2 it is seen that the deed was presented for registration at 11.15 a.m. iv) Various recitals in the deed which have already been referred to are obviously incorrect makes the Will open to serious doubt. 43. Execution means signing of the deed after knowing its contents. It does not mean affixture of signature S.A.647/1997. 33 alone. There is considerable evidence in the case to show that the recitals regarding the children of the testator in Ext.B2 are wrong or atleast are open to serious doubts. It would appear that if the testator was aware of the contents of the Will, such recitals would not have been acceded to by the testator. 44. In these circumstances the non-examination of other witnesses who had a major role to play in the execution of the Will assumes significance. Of course it is not necessary to examine a number of witnesses to prove the due execution of the Will. Execution and attestation of the Will need to be proved by examining only one of the witnesses. That has been done in this case. But as already noticed, his evidence is too vague to prove the due execution of the Will. 45. However, in the case on hand, the suspicious nature of the various recitals in Ext.B2 document, about which D.W.1 has no explanation, make the Will suspicious. The version of D.W.2 is that he had noted down what was S.A.647/1997. 34 narrated by Smt.Lakshmikutty Amma in the presence of Adv.Leelavathi and Sri.Aravindaksha Menon. From his evidence it is very clear that Adv.Leelavathi and Sri.Aravindaksha Menon were in the know of things and they had a major role to play in the drawing up of the Will. One must remember that the testator had approached Adv.Leelavathi first for drawing up of the Will going by the evidence in the case. Sri.Sreedharan Nair had drafted the Will. Atleast one of the them could have been examined to corroborate the evidence of D.W.2 or atleast to give credence to the evidence of D.W.2 and to enable the court to come to the conclusion that the contents of the Will are narrated by Smt.Lakshmikutty Amma. One can reasonably presume that since Smt.Lakshmikutty Amma had approached Adv.Leelavathi first, in the normal course of events the draft would have been scrutinized by Adv.Leelavathi. The evidence of D.W.2 is to the effect that he is unable to say whether the draft was handed over to Adv.Leelavathi or Sri.Aravindaksha Menon. He is unable to S.A.647/1997. 35 say whether Smt.Lakshmikutty Amma has seen the draft at all. These aspects could have been spoken to either by Adv.Leelavathi or Sri.Aravindaksha Menon. 46. When the execution of the Will was seriously disputed and some crucial recitals in the Will are shown to be factually incorrect, best evidence was expected regarding the due execution of the Will. At any rate, the Registrar, who was instrumental in registering the document atleast could have been examined. 47. The evidence of D.W.1 is to the effect that Smt.Lakshmikutty Amma and Sri.Aravindaksha Menon are familiar to each other. If that be the situation, non-examination of Sri.Aravindaksha Menon assumes more significance. One must recollect here that he was present at the time when Smt.Lakshmikutty Amma narrated the details to be included in the Will to D.W.2 in the presence of Adv.Leelavathi and it was he who had returned the draft to D.W.2. Obviously, he would have been in a better position to speak more about the due execution of the Will and also 36 S.A.647/1997. the fact that Smt.Lakshmikutty Amma had approved the contents of the Will than D.W.2, whose role was not as prominent as that of Adv.Leelavathi and Sri.Aravindaksha Menon. The reluctance on the part of the contesting defendant to examine either of these witnesses casts doubts regarding the genuineness of the Will. 48. So also the evidence of D.W.1 of total ignorance regarding the drawing up of the Will also creates doubt regarding the genuineness of the Will. He would go to the extent of saying that he had not made any enquiries about the other witnesses in Ext.B2 even though he came to know about the Will. That conduct on the part of D.W.2 is very strange. Even after the Will came to his notice, he did not bother to find out who the witnesses were. 49. There is yet another aspect. The two identifying witnesses as could be seen from Ext.B2 are ## i) C.Balakrishnan and ii) Maniyeri Kunjunni Kurup. S.A.647/1997. 37 The original of the document is seen returned to Balakrishnan on 21.3.1978. There is absolutely no evidence to show the relationship between Smt.Lakshmikutty Amma and Sri.Balakrishnan and there is nothing to show that Sri.Balakrishnan was authorised to receive the document back from the Registrar's office. 50. It is well settled that the determination of the genuineness of the Will is not a matter confined to the parties. Law is clear on the point. Once the Will is brought to court, it ceases to be a lis between the parties and it becomes an issue between the propounder and the court. Such proceedings have an element of solemnity. 51. At the risk of repetition, one may notice that it is a solemn proceeding because the testator is not available to depose regarding the Will. 52. Thus on a consideration of the evidence, it becomes difficult to support the finding of the lower appellate court regarding the conclusion drawn by it regarding the Will, namely, Ext.B2 document. The reasons 38 S.A.647/1997. given for upholding the Will do not appear to be very convincing and does not appear to be in consonance with the evidence on record. It would appear that the lower appellate court strained much to hold in favour of the Will and has omitted to note certain vital aspects which would throw considerable doubt regarding the genuineness of the Will. In the result, this appeal is allowed, the judgment and decree of the lower appellate court are set aside and that of the trial court are restored. There will be no order as to costs. **P. BHAVADASAN, JUDGE** sb.