Kunjukutty and Santha v. Pankajakshi, Sarala, Ratnam, Mohanan, Sreevallabhan, Lalitha, Arjun and Arun

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 RSA.No. 144 of 2011() --------------------AS.309/2006 of DISTRICT COURT, THRISSUR OS.308/2004 of ADDL.SUB COURT, IRINJALAKUDA .................... APPELLANTS/ RESPONDENTS 1 & 2/ PLAINTIFFS ------------------------------ 1. KUNJUKUTTY, D/O PUTHENVEETTIL KALYANIAMMA, KALLUR VILLAGE, MUKUNDAPURAM TALUK. 2. SANTHA, D/O PUTHENVEETIL KALYANIAMMA, KALLUR VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.S.VINOD BHAT SRI.LEGITH T.KOTTAKKAL RESPONDENT(S): --------------- 1. PANKAJAKSHY, D/O MOOTHEDATH BALAKRISHNAN NAIR, MOOTHEDATHU VEEDU, AMBALLUR VILLAGE, DESOM, MUKUNDAPURAM TALUK, ALAGAPPA NAGAR P.O., PIN-680302. 2. SARALA, D/O MOOTHEDATH BALAKRISHNAN NAIR MOOTHEDATHU VEEDU, AMBALLUR VILLAGE, DESOM, MUKUNDAPURAM TALUK, ALAGAPPA NAGAR P.O., PIN-680302. 3. RATNAM, D/O MOOTHEDATH BALAKRISHNAN NAIR AMBALLUR VILLAGE, DESOM, MUKUNDAPURAM TALUK, NOW RESIDING AT CHAKKALAPARAMBIL VEEDU, PONNUKARA P.O., PIN-680306. 4. MOHANAN, D/O MOOTHEDATH BALAKRISHNAN NAIR, MOOTHEDATHU VEEDU, AMBALLUR VILLAGE, DESOM, MUKUNDAPURAM TALUK, ALAGAPPA NAGAR P.O., PIN-680302. 5. SREEVALLABHAN, D/O MOOTHEDATH BALAKRISHNAN NAIR, MOOTHEDATHU VEEDU, AMBALLUR VILLAGE,DESOM, MUKUNDAPURAM TALUK, ALAGAPPA NAGAR P.O., PIN-680302. 6. LALITHA, W/O MEETHEDATH RAMACHANDRAN, KOLATHUR DESOM, KODAKARA VILLAGE, MUKUNDAPURAM TALUK NOW RESIDING AT INDIRALAYAM, KODAKARA P.O., PIN 680684. 7. ARJUN, S/O MOOTHEDATH RAMACHANDRAN, KOLATHUR DESOM, KODAKARA VILLAGE, MUKUNDAPURAM TALUK, NOW RESIDING AT INDIRALAYAM, KODAKARA P.O., PIN 680684. 8. ARUN, S/O MOOTHEDATH RAMACHANDRAN, KOLATHUR DESOM, KODAKARA VILLAGE, MUKUNDAPURAM TALUK, NOW RESIDING AT INDIRALAYAM, KODAKARA P.O., PIN 680684. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## M.SASIDHARAN NAMBIAR,J. --------------------------------------------- `R.S.A.NO.144 OF 2011` --------------------------------------------- `Dated 11[th] February, 2011` ## JUDGMENT Plaintiffs in O.S.308/2004 on the file of Additional Sub Court, Irinjalakuda are the appellants. Respondents are the defendants. Suit was filed for partition. Appellants are the children of deceased Balakrishnan Nair in his first wife Kalyani Amma. Balakrishnan Nair had subsequently married Devaki Amma and later dissolved the marriage with Kalyani Amma under Ext.B1. Balakrishnan Nair had originally executed Ext.B2 registered Will on 31/12/1982. Subsequently he allegedly executed Ext.B3 Will on 21/11/1991. It is a registered Will. Balakrishnan Nair subsequently died on 22/4/2000. Respondents RSA 144/11 2 1 to 5 and deceased Ramachandran Nair are the children of Balakrishnan Nair in Devaki Amma. Sixth respondent is the widow and respondents 7 and 8 are the children of Ramachandran Nair. The suit was filed claiming partition, contending that plaint schedule property is available for partition. Respondents resisted the claim contending that Balakrishnan Nair had originally executed Ext.B2 registered Will which was subsequently cancelled by executing Ext.B3 registered Will and therefore, property vested with legatees under Ext.B2 Will and therefore, plaint schedule property is not available for partition. O.S.358/2005 was filed by defendants 1,4 and 5 in O.S.308/2004, seeking a decree for injunction contending that plaintiffs 1 and 2 have no right or possession in the plaint schedule property. It was RSA 144/11 3 resisted by appellants contending that they are co-owners as the property originally belonged to deceased Balakrishnan Nair and on his death it devolved on all the children. 2. Learned Sub Judge on the evidence of Pws.1 to 3, Dws. 1 to 4 and Exts.B1 to B6 granted a preliminary decree holding that Ext.B3 Will is not valid as it is vitiated by suspicious circumstances which were not removed by the prepounders of the will. Respondents 1 to 3 challenged the judgment before District Court, Thrissur in A.S.309/2006. As O.S.358/2005 was also dismissed, A.S.310/2006 was filed challenging dismissal of the suit. Learned District Judge as per judgment dated 12/8/2010, on reappreciation of the evidence, upheld Ext.B3 Will and allowed A.S.309/2006 and dismissed RSA 144/11 4 O.S.308/2004. A.S.310/2006, the appeal filed challenging dismissal of the suit for injunction was dismissed. Second appeal is filed challenging the judgment in A.S.309/2006 contending that learned District Judge did not properly appreciate the evidence and the fact that execution of Ext.B3 Will was not proved, was not taken into consideration. 3. Learned counsel appearing for the appellants was heard. 4. Argument of the learned counsel appearing for the appellants is that Ext.B3 Will was not proved as provided under Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act. Substantial questions of law, according to the appellant to be formulated, are whether first appellate court went wrong in accepting Ext.B3 Will when the RSA 144/11 5 requirements of proving attestation of the same are absent in the evidence let in by DW3, the only attesting witness examined and whether first appellate court went wrong in accepting the evidence of DW2, the scribe as attesting witness when there is no animus attestandi. 5. Learned Additional Sub Judge, Irinjalakuda granted a decree finding that execution of Ext.B3 Will was not proved. But it is not on the ground that attestation of the will was not proved or legal requirements under Section 63(c) of Indian Succession Act or Section 68 of Indian Evidence Act were not satisfied. Learned Sub Judge enumerated certain aspects which according to the learned Sub Judge are sufficient suspicious circumstance which were not explained to find that the Will was not executed by the testator out of his RSA 144/11 6 free will and volition. There is no finding by the learned Sub Judge that Will was not proved in accordance with the legal requirements provided under Section 63(c) of Indian Succession Act or Section 68 of Indian Evidence Act. 6. Learned District Judge elaborately considered each of the circumstances which were stated by the learned Sub Judge as suspicious circumstances, and found that they were properly explained and they are not suspicious circumstances to doubt the genuineness of the Will executed by the testator. Argument of the learned counsel is that neither learned Sub Judge nor learned District Judge considered the legal requirements under Section 63 of Succession Act to prove a Will and when the evidence of DW3, the sole attesting witness RSA 144/11 7 examined to prove the Will did not depose that the other attesting witness who was not examined had seen the testator signing the Will and so the legal requirements provided under Section 63(c) of Indian Succession Act is not satisfied and therefore, the Will cannot be accepted. Learned counsel relied on the decision of the Honourable Supreme Court in **Janki Narayan Bhoir v. Narayan Namdeo Kadam (AIR 2003 SC 761), Benga Behera v. Braja Kishore Nanda (AIR 2007 SC 1975), Rur Singh v. Bachan Kaur (2009 (1) KLT SN 48 (SC)), Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar** **Singh (2005 (4) SCC 780)** and decision of a learned Single Judge of this Court in **Devassykutty v. Visalakshy Amma (2010 (3) KLT 1010)** . Argument of the learned counsel is RSA 144/11 8 that when the evidence of PW3 does not show that the other attesting witness had seen the testator signing Ext.B3, requirements provided under Section 63(c) of Indian Succession Act is not satisfied. 7. Section 68 of Indian Evidence Act provides that 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. Legal requirement provided under Section 63 of Indian Succession Act was explained by Honourable Supreme Court in Yumnam Ongbi Tampha Ibema Devi's case (supra) as follows: “As per the provisions of S.63 RSA 144/11 9 of the Succession Act, for the due execution of a will; 1) the testator 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 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.” Honourable Supreme Court in Janaki Narayan Bhoir's case (supra) explained the requirements as follows. “The one attesting witness RSA 144/11 10 examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by other witness also, it falls short of attestation of Will by at least by two witnesses for the simple reason that the execution of the Will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under S.63 of the Succession Act. Where one attesting witness examined to prove the Will under Section 68 of the Evidence Act fails to RSA 144/11 11 prove the due execution of the Will, then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by the other witness there will be deficiency in meeting the mandatory requirements of S.68 of the Evidence Act.” The position has been reiterated in Rur Singh v. Bachan Kaur (2009 (1) KLT SN 48 SC) as follows; “To put in other words, if one attesting witness can prove execution of the will in terms of Cl.(c) of S.63, viz., attestation of other attesting witness can be dispensed with. RSA 144/11 12 The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under S.63 of the Succession Act. Where one attesting witness examined to prove the will under S.68 of the Evidence Act fails to prove the due execution of the will, then the other available RSA 144/11 13 attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness, there will be deficiency in meeting the mandatory requirements of S.68 of the Evidence Act.” 8. It therefore gives no room for doubt regarding the legal requirements. There should be evidence to prove that the testator signed or affixed his mark in the Will. The signature or mark of the testator should be such that it should appear that it was intended thereby to give effect to the writing of the Will. The Will should be attested by two or more witnesses. Each of the said witness must have RSA 144/11 14 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. 9. Question is whether evidence in this case satisfies the requirements. Evidence of DW3, one of the attesting witnesses who alone was examined is to the effect that he was one of the attesting witnesses to Ext.B3 and he signed in Ext.B3 as an attesting witness and himself and DW2, the scribe, Balakrishnan Nair the testator and James, the other attesting witness also signed therein. He had seen the testator Balakrishnan Nair signing as well as the other attesting witness signing. Balakrishnan Nair, the testator had seen the witnesses and James affixing their signatures in Ext.B3. True, there is no specific statement in his deposition that James, the RSA 144/11 15 other attesting witness had seen the testator signing. It is on this ground, learned counsel vehemently argued that legal requirement is not satisfied. In cross examination he deposed that testator had seen the attestors signing and he had seen the other attesting witness signing. It is pertinent to note that there was no suggestion that the other witness had not seen the testator signing or the said witness did not see the testator signing. DW2 is the scribe. He was also the scribe of Ext.B2 Will which was cancelled by Ext.B3. Evidence of DW2 shows that he had seen the testator Balakrishnan Nair and the witnesses signing and the testator had seen DW2 and the attesting witnesses signing. Therefore, though DW2 is not an attesting witness, his presence at the time of execution is proved by the evidence of RSA 144/11 16 DW3. The Will also contains signature of DW2. Evidence of DW2 which was not challenged on that aspect, establishes that the testator had seen the attesting witnesses signing and the attesting witness had seen the testator signing the Will. When that evidence of DW2 was not challenged at all, it is futile for the appellants to argue, at the second appeal stage, that as DW3 did not specifically depose that the other attesting witness had seen the testator signing the Will, legal requirement is not satisfied. If DW3 had seen the testator signing as well as the other attesting witness and DW2 signing and the witnesses had also seen DW3 signing as deposed by him, omission to specifically depose that the other attesting witnesses had seen the testator signing Ext.B3 Will, is not a ground to hold that the legal RSA 144/11 17 requirements under Section 63 of Indian Succession Act has not been satisfied. 10. This Court in Devassykutty's case (supra) considered a similar case, though that was a case worst than the present one. Evidence of the only attesting witness examined, as is clear from paragraph 9 of the judgment, is to the effect that that witness had seen the testator affixing his signature in the Will and the witness had signed the Will in the presence of Bharathi Amma, the testator. Evidence with regard to other attesting witnesses was that he had also signed in the Will. He did not say either that the testator had signed in the presence of the other attesting witnesses or that the other attesting witness signed in the presence of DW2 therein or the testator. Still this Court on the RSA 144/11 18 evidence held. “23. It is true that in the case on hand there is no specific statement by P.W.2 that he had seen the other attesting witness sign the Will in the presence of the testator, but he has stated that the other witness had also signed in the document. That statement by implication and inference shows the attestation by the other witness also.” Evidence of DW3 is much better than the evidence of DW2 in that case. More over, evidence of DW3 satisfies the requirements with the evidence of DW2 that the attesting witness had seen the testator signing the will as provided under Section 63 of Indian Succession Act. Requirement which was omitted in the RSA 144/11 19 evidence of DW2 is supplied by the evidence of DW3. Even otherwise the inference by implication is sufficient. Therefore, I find no reason to interfere with the findings of the learned District Judge that Ext.B3 Will was validly executed. In such circumstances, no substantial question of law is involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.