Madhavi (Died; LRS Impleaded) v. Bhagyam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 7[TH] DAY OF NOVEMBER 2022 / 16TH KARTHIKA, 1944** **RSA NO. 544 OF 2010** **AGAINST THE JUDGMENT IN OS 705/2005 OF PRINCIPAL MUNSIFF COURT, PALAKKAD AS 340/2007 OF ADDITIONAL DISTRICT COURT, PALAKKAD** **-----** ## **APPELLANT/APPELLANT/PLAINTIFF:** 1 MADHAVI, **(DIED; LRS IMPLEADED)** WIFE OF LATE BALAKRISHNAN, RESIDING AT EANTHRAKKODE KALAM, RAMASSERRY, ELAPPULLY, PALAKKAD. ## *** ADDL. APPELLANT NOS.2 TO 7** ADDL.A2 SWAMINATHAN, AGED 51 YEARS, S/O.LATE BALAKRISHNAN AND LATE MADHAVI, EANTHRAKODE KALAM, RAMASSERRY, ELAPPULLY, PALAKKAD DISTRICT. ADDL.A3 VELAYUDHAN, AGED 65 YEARS, S/O.LATE BALAKRISHNAN AND LATE MADHAVI, EANTHRAKODE KALAM, RAMASSERRY, ELAPPULLY, PALAKKAD DISTRICT. - ADDL.A4 VIJAYAN, AGED 63 YEARS, S/O.LATE BALAKRISHNAN AND LATE MADHAVI, EANTHRAKODE KALAM, RAMASSERRY, ELAPPULLY, PALAKKAD DISTRICT. - ADDL.A5 VIJAYALEKSHMI, AGED 59 YEARS, D/O.LATE BALAKRISHNAN AND LATE MADHAVI AND W/O.JAYACHANDRAN, NANDANAM, ADAYAR HOUSE, VILAYODY P.O.,PALAKKAD DISTRICT. ADDL.A6 SREELATHA, AGED 57 YEARS, D/O.LATE BALAKRISHNAN AND LATE MADHAVI AND W/O.LATE CHAMIMALA,PULIKKODE HOUSE, THENARI P.O., PALAKKAD DISTRICT. **RSA NO. 544 OF 2010 -2-** ADDL.A7 PREETHA, AGED 42 YEARS, D/O.LATE BALAKRISHNAN AND LATE MADHAVI AND W/O.SHAJI, PATHIKKAL HOUSE, KUTTIPPALLAM P.O., NARANI, PALAKKAD DISTRICT. ***(LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 7 AS PER ORDER DATED 13.08.2020 IN IA.1/2020.)** BY ADVS. SRI.T.M.CHANDRAN T.M.CHANDRAN SRI.JOSEPH ALBIN NEDUNTHALLY SRI.S.SUJITH SRI.V.A.SASIDHARAN ## **RESPONDENT/RESPONDENT/DEFENDANT:** BHAGYAM, W/O RAGHAVAN, R/A CHEMBANA, KAVA, PUDUSSERY, PALAKKAD. BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.S.A. No.544 of 2010** **= = = = = = = = = = = = = = = = = = Dated this the 7[th] day of November, 2022** ## **J U D G M E N T** This Regular Second Appeal is by the plaintiff in a suit for declaration of title and injunction. 2. The plaint schedule property having an extent of 42 cents belonged to late V. Balakrishnan. The plaintiff is his wife. The defendant is the daughter born to Balakrishnan in his first wife. Plaintiff claims title over the property under Ext.A3 Will dated 26.11.2004 executed by Balakrishnan. 3. The defendant challenged the genuineness of Ext.A3 Will. 4. To prove the Will, the plaintiff examined one of its attestors viz. Velayudhan, as PW2. The trial court held that the evidence of PW2 does not prove compliance with the requirement under Section 63 of the Indian Succession Act. Accordingly, Ext.A3 Will was held ## **R.S.A. No.544 of 2010** -: 2 :- against. It was also found that the suit is bad for nonjoinder of necessary parties viz. the non-impleadment of the other legal heirs of the testator. The suit was dismissed. The decree was confirmed in appeal. 5. Heard learned Counsel Sri.T.M.Chandran on behalf of the appellant-plaintiff and Sri.Sajan Varghese, the learned counsel for the respondent-defendant, on the following substantial questions of law:- “ _(i) Is the appreciation of the evidence of PW2 – the attestor, by the courts perverse ?_ _(ii) Is the finding of the courts that the suit is bad for non-joinder of necessary parties correct in law ?_ 6. Ext.A3 Will is attested by two witnesses-PW2 Velayudhan and one T.Balakrishnan. In terms of Section 68 of the Indian Evidence Act, at least one of the attesting witnesses is to be examined to prove due execution of the Will. In terms of Section 63 of the Indian Succession Act, the signing of the Will by the testator must be followed by attestation of two ## **R.S.A. No.544 of 2010** -: 3 :- witnesses who must have witnessed the signing by the testator, or have received personal acknowledgment of execution from the testator. The finding of the courts is that, PW2-the attestor has failed to prove due execution and attestation as required under Section 63 of the Indian Succession Act. The learned counsel for the respondent rely on the judgments in _**K.M. Varghese and others v K.M. Oommen and Others [1994 (2) KLT 620]**_ and _**Balakrishna Pillai and Ors. v. G. Nataraja Pillai and Ors. [2017 (5) KHC 732]**_ to contend that signing by the testator is to precede the act of signing by the attestors failing which there is no due execution. 7. Before I proceed to discuss on the evidence of PW2, it would be relevant to refer to the background or the circumstances that prevailed at the time of execution of Ext.A3 Will. The testator Balakrishnan V. was aged 86 years. He was being taken care of by his wife-the plaintiff. His daughter, the defendant, had not attended to his needs nor did she care about the welfare **R.S.A. No.544 of 2010** -: 4 :- of her father. This is admitted by the defendant as DW2, in her cross-examination. The defendant was gifted other properties by the father. Seeking to get possession of the property from her father in respect of the property covered under the gift, she filed a suit against her father as OS 208/1992. The suit was decreed on 14.11.1996. Exts.A14 and A15 are the decree and judgment respectively, in the suit. The sons of the testator were given other properties under Ext.A1 partition deed of the year 1996. It was in the said background that Ext.A3 Will was executed by Balakrishnan. There is no case nor evidence that any property was given to the plaintiff other than that covered under the Will. The above circumstances are of significance while considering the genuineness of Ext.A3 Will. The circumstances would probabilise the execution of a Will by V.Balakrishnan in favour of the plaintiff. 8. Now coming to the evidence of PW2-the witness to Ext.A3 Will, it is to be borne in mind that, the **R.S.A. No.544 of 2010** -: 5 :- witnesses to execution were themselves the identifying witnesses for registration. Therefore, the witnesses had signed at the time of execution of the Will and also at the time of registration of the Will though in different capacities. A reading of the evidence of PW2 would show that he has mixed himself up, or confused himself, with regard to the sequence in which the testator and the witnesses had signed, and also the place at which the Will was signed namely, whether it was at the office of the scribe or at the Sub Registry Office. 9. The relevant portions of his deposition with regard to the sequence of affixing signatures, and the place, are being adverted to hereunder. 10. In page 2 of the Chief Examination he stated thus:- _“_ am[-hn-¡v kz-¯v sIm-Sp-¡p-¶-Xn-\v H-cp H-kz-¯v F-gpXn. Xp-SÀ-¶v {]-`m-I-c³ A-Xv hm-bn-¨p. A-Xn-\p-ti-jw {]-`m-I-c³ Sn. _m-e-Ir-jv-W³ F-¶-bm-tfm-Sv H-¸n-Sm³ ]-dªp. ]n-¶o-Sv F-t¶mSpw H-¸n-Sm³ ]-dªp. Rm-\pw H-¸n«p. B-[m-c-¯n **R.S.A. No.544 of 2010** -: 6 :- B-scm-s¡-bm-Wv H-¸n«Xv ( _Q_ ) _V._ _m-e-Ir-jv-W\pw H-¸n-«n-«p¾v. ( _A_ ) R-§Ä H-¸n-« tc-J I-ïm-e-dn-bmw. A-Xm-Wv Im-Wn- ¨Xv. ( _identify the signature of V. Balakrishnan, T. Balakrishnan and_ _himself_ ). R-§Ä aq-¶p-t]cpw H-¸n-Sp¶-Xv R-§Ä ]-c-kv]-cw I-ïn-«pïv. A-Xn-\p-ti-jw c-Pn-kv-{Xm-^o-kn sN-¶v A-hn-sS \n¶pw H-¸n-«n-cp¶p. Xp-SÀ-¶v B-[m-cw c-Pn-kv-{S sN-bvXp. B tc-J-bm-Wv Im-Wn¨Xv ( _identified Ext.A3_ ). _”_ 11. At pages 5 and 6 of the cross-examination, he has deposed thus:- “R§Ä aq-¶p t]cpw Iq-Sn-bm-Wv {]-`m-Ic-sâ Hm-^o-kn h-¶Xv. ..... {]-`m-Ic-sâ Hm-^o-kn R-§Ä sN-¶ ka-bw th-tdbpw BÄ-¡mÀ D-ïm-bn-cp-¶p. …... Hkz-¯v F-gpXn-b ti-jw A-Xn _v_ . _m-e-Ir-jv-W³ H-¸n«p. {]-`m-Ic-sâ ]- ¡Â \n¶pw t]-\ hm-§n H-¸n-«-XmWv. h-c-¨-XmWv. Sn-bm³ F-{X H-¸p-IÄ C-«p F-¶-dn-bnÃ. FÃm t]-¸-dnepw H-¸n-«p. Hmtcm t]-¸-dn-epw Hmtcm H-¸m-Wv C-«Xv. {]-`m-Icsâ Hm-^okn h¨v _v.Balakrishnan_ H-¸n-«n-«nÃ. FÃm H-¸p-Ifpw {]-`m-Icsâ Hm-^o-kn h-¨m-Wv C-«Xv. c-Pn-kv-{Sm-^o-kn sh-¨v H- **R.S.A. No.544 of 2010** -: 7 :- ¸n-«n-cp¶p. FÃm t]-Pp-I-fn-epw H-¸n«-Xv c-Pn-kv-{S--m^o-kn c- Pn-kv-{Sm-dp-sS ap-¼n h-¨mWv. A-Xn-\p-ti-jw Sn. _m-e-Ir-jvW³ H-¸n«p. Sn. _m-e-Ir-jv-W³ H-¸n«-Xv c-Pn-kv-{Sm-À-sS ap¶n sh-¨mWv. A-Xn-\p-ti-jw Rm³ H-¸n«p. Rm\pw c-Pn-kv- {Sm-dp-sS ap-¶n sh-¨m-Wv H-¸n-«Xv. ” 12. Then at page 7 of the cross-examination, he deposed thus:- _“ ._ ....... ....... ....... C-Xn 2, 3, 4 t]-Pp-I-fn _m-e-Ir-jvW³ Hmtcm H-¸pw 5-þmw t]-Pn cï-p H-¸p-Ifpw C«p. C-h c-Pn-kv- {Sm-^o-kn sh-¨m-Wv H-¸n-«Xv. c-Pn-kv-{Sm-^o-kn sh-¨v hn._m-e-Ir-jv-W³ 2 Iq-Sn 5 t]-Pp-I-fn H-¸n-«-Xn km-£nI-fm-bn Rm\pw Sn. _m-e-Ir-jv-W\pw H-¸n-«-Xv 1þmw t]-Pnsâ ]p-d-Ip-h-i-¯m-Wv. C-XÃm-sX Rm\pw Sn._m-e-Ir-jvW-\pw th-tdbpw H-¸n-«n-«pïv. AXv 5þmw t]-Pn-emWv. Cu H- ¸p-IÄ {]-`m-Icsâ Hm-^o-kn sh-¨m-Wv R-§Ä C-«Xv. A- Xn-\v ti-j-am-Wv c-Pn-kv-{Sm-^o-kn t]m-bXv. c-Pn-kv-{Sm-^okn t]m-Ip-¶-Xn-\p ap-¼v {]-`m-Icsâ Hm-^o-kn sh-¨p Rm\pw Sn._m-e-Ir-jv-W\pw H-¸n-« ka-bw A-Xn hn. _m-eIr-jv-W³ H-¸n-«n-cp-¶nÃ. hn._m-e-Ir-jv-W³ t\-c-s¯ 2 apX 5 IqSn-b t]-Pp-I-fn c-Pn-kv-{Sm^o-kn sh-¨v H-¸n-«- **R.S.A. No.544 of 2010** -: 8 :- XÃm-sX th-sd H-¸n-«n-«nÃ. _”_ 13. As is seen from the above, regarding the sequence of signing, he would say that the testator signed after the Will was written and that he got the pen from the scribe and signed. It was there after that the other witness, T. Balakrishnan signed. Thereafter PW2 signed. Later he would also say that it was the witnesses who signed first and the testator had signed later at the office of the sub registrar. 14. Regarding the place at which the signatures were affixed, in one breath he would say that the signatures were affixed at the office of the scribe, and in the next breath he would say that signatures were affixed at the Sub Registry Office. He would also say that signatures were affixed in both places. Whether the above are circumstances to find that the witness cannot be believed, or are the inconsistencies to be understood as the lack of knowledge of the witness regarding the ## **R.S.A. No.544 of 2010** -: 9 :- entire procedure and the confusion that occurred consequent on the fact that he is the attesting witness as well as the identifying witness. A reading of the evidence of PW2 in its entirety does not give an indication that he is saying falsehood before the court. No motive is suggested to him as to why he should be a party to alleged fabrication of such a document. A reading of the deposition of PW2 seems to suggest that he is not a tutored nor a professional witness. His evidence could only be understood to be, as that of a village man who signed both as the attesting and identifying witness, and both at the office of the scribe and the Sub Registrar’s Office, who mixed up things while deposing in court. 15. From the evidence of PW2 it is evident that, the testator and the witnesses had gone together to the office of the scribe, that the Will was written and signed by the testator and then by the witnesses, that they all were together when the Will was prepared, ## **R.S.A. No.544 of 2010** ## -: 10 :- signed and attested. They together went to the Sub Registry Office where the process of registration took place. The evidence of PW2 in its entirety, prove the aforesaid facts. There is sufficient proof of the Will in terms of Section 68 of the Indian Evidence Act. The ingredients of Section 63 of the Indian Succession Act are satisfied. A perusal of the last page of the Will indicates that, the testator had signed first, followed by the attestors, and again by the testator. The said sequence of signatures at the last page of the Will also supports the above conclusion. While appreciating the evidence of the attestor-PW2, the circumstances obtaining can also be taken into consideration to enter a finding on due execution and attestation _**[** See_ _**Naresh Charan Das Gupta v. Paresh Charan Das Gupta (AIR 1955 SC 363)]**_ . 16. Incidentally it is to be noticed that, since the defendant disputed the signature of the testator on the Will, the plaintiff sought production by the defendant of the original Gift Deed executed by the ## **R.S.A. No.544 of 2010** -: 11 :- testator Balakrishnan in her favour, made mention of supra. However, as DW1 she would say in cross examination that the document is not in her possession and that she does not know where it is. Her deposition, in vernacular, reads thus :- “F\n-¡v Zm-\w X-¶ A-Ê tcJ ssI-h-i-anÃ. A-Xv F-hnsS-t¸m-bn F-¶-dn-bnÃ.” 17. The Apex Court in _**M B Ramesh (D) by L.Rs. v. K M Veeraje Urs (D) by L.Rs and Ors. (AIR 2013 SC 2088)**_ referred to the judgment in _**R. Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443)** , wherein it was held_ :- _“………….3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which_ **R.S.A. No.544 of 2010** -: 12 :- _go into the making of the will.”_ In _**M B Ramesh (supra)**_ , the Apex Court has also referred to a decision of the Bombay High Court in _**Vishnu Ramakrishnan v. Nathu Vithal (AIR 1949 Bom 266)**_ wherein it was held:- _“15.... We are dealing with the case of a will and we must approach the problem as a Court of Conscience. It is for us to be satisfied whether the document put forward is the last will and testament of Gangabai. If we find that the wishes of the testatrix are likely to be defeated or thwarted merely by reason of want of some technicality, we as a Court of Conscience would not permit such a thing to happen. We have not heard Mr. Dharap on the other point; but assuming that Gangabai had a sound and disposing mind and that she wanted to dispose of her property as she in fact has done, the mere fact that the propounders of the will were negligent – and grossly negligent in not complying with the requirements of Section 63 and proving the will as they ought to have should not deter us from calling for the necessary evidence in order to satisfy ourselves_ **R.S.A. No.544 of 2010** -: 13 :- _whether the will was duly executed or not ….”_ The principle was followed in _**Smt. Jaswant Kaur v. Smt. Amrit Kaur (AIR 1977 SC 74).**_ 18. Regarding the proof of will, the Apex court in _**Kalyan Singh v. Chhoti and Ors. (AIR 1990 SC 396)**_ , held :- _“20. It has been said almost too frequently to require repetition that 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's 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_ **R.S.A. No.544 of 2010** -: 14 :- _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.”_ Also, in _**Jagdish Chand Sharma v. Narain Singh Saini and Ors. [AIR 2015 SC 2149]**_ , the Apex Court held thus :- _“45. A will as an instrument of testamentary disposition of property being a legally acknowledged mode of bequeathing a testator's acquisitions during his lifetime, to be acted upon only on his/her demise, it is no longer res integra, that it carries with it an overwhelming element of sanctity. As understandably, the testator/testatrix, as the case may be, at the time of testing the document for its validity, would not be available, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation. This is more so, as many a times, the manner of dispensation is in stark departure from the prescribed canons of devolution of property to the heirs and legal representatives of the deceased. The rigour of Section 63(c) of the Act and Section 68 of 1872 Act is thus_ **R.S.A. No.544 of 2010** -: 15 :- _befitting the underlying exigency to secure against any selfserving intervention contrary to the last wishes of the executor.”_ 19. It is relevant to note that, Ext.A3 is a registered Will. The presumption attached to the registration of the document is also of relevance. _**[** See_ _**Pentakota Satyanarayana and Ors. v. Pentakota Seetharatnam and Ors. (2005 (8) SCC 67), K.M. Varghese and others v. K.M. Oommen and Others (1994 (2) KLT 620), Seema v. Johny Thomas (2012 (3) KLT 207), Raveendran v. Gopi, (2015 3 KLT 740)]**_ . I am unable to agree with the findings of the Courts that, the ingredients of Section 63 of the Indian Succession Act has not been satisfied and due execution is not proved through the evidence of PW2. Substantial question of law No.1 is answered accordingly. 20. The scope of interference in an appeal under Section 100 of the Code of Civil Procedure is very limited. It is confined to cases involving a substantial question of law between the parties. When there has been ## **R.S.A. No.544 of 2010** -: 16 :- a misreading of evidence or a perverse appreciation of evidence and a consequential finding, the High Court gets jurisdiction under Section 100 of the Code of Civil Procedure and can set aside the finding of fact _**[** See_ _**Neelakantan v. Mallika Begum (2002 (2) SCC 440), Damodar Lal v. Sohan Devi (AIR 2016 SC 262), Balasubramanian and Ors. vs. M. Arockiasamy (Dead) through L.Rs. (AIR 2021 SC 4221), Narendra v. Ajabrao, (2018 (11) SCC 564), Chandna Impex (P) Ltd. v. Commr. Of Customs (2011 (7) SCC 289), Rohini Prasad v. Kasturchand (2000 (3) SCC 668)].**_ As found above, the evidence of the attesting witness to the disputed Will was thoroughly misread by the Courts and a finding entered. It constitutes a substantial question of law within Section 100 of the Code of Civil Procedure. It is held that on a proper reading of the evidence of PW2, the witness to Ext.A3 Will, the Will is found to be duly executed and attested in terms of Section 63 of the Indian Succession Act, and that its due execution has been proved as mandated under Section 68 of the Evidence Act. ## **R.S.A. No.544 of 2010** -: 17 :- 21. Coming to the plea that the suit is bad for non-joinder of necessary parties, the contention is that, the plaintiff is the 3[rd ] wife of Balakrishnan; all the children born to Balakrishnan in the first and second marriages are necessary parties to the suit. The claim that there are any children in the second marriage of V.Balakrishnan is disputed by the plaintiff. There is no evidence to show that any children were born in the said wedlock. That there were sons born to Balakrishnan in the first marriage is not disputed. The question is whether they are necessary parties to the suit. 22. The prayer for declaration of title is made as against the defendant who according to the plaintiff, denied the title of the plaintiff. Unless there is any challenge on the title of the plaintiff by any other children of late Balakrishnan, there is no necessity to implead them as defendants in the suit. Though a suit on a Will, unlike a probate proceeding which is a proceeding _**in rem** ,_ this is a proceeding _**in personam (See**_ **R.S.A. No.544 of 2010** -: 18 :- _**Balwant v. Mainabai (AIR 1991 MP 11), Alagammal & Ors. v. V. Rakkamal (AIR 1992 Mad. 136), Multivahuji v. Kalindivahuji and Ors (AIR 1994 Guj 42), Jerbanoo Rustomji Garda v. Pootlamai Manecksha**_ _**Mehta (AIR 1955 Bom. 447)]** ._ The decree will not bind the persons who are not parties to the suit. It is for the plaintiff to sue the person, whom the plaintiff apprehends, that denies his title. The other children of Balakrishnan are not necessary parties to the suit. The finding of the courts below that the suit is bad for non-joinder of necessary parties is thus set aside. Substantial question of law No.2 is answered accordingly. 23. In view of the findings on the substantial questions of law Nos.1 and 2 as above, the plaintiff is entitled for a decree as prayed for. 24. Resultantly, the Regular Second Appeal is allowed. The suit is decreed declaring the title of the plaintiff over the plaint schedule property. The defendant is restrained by a decree of prohibitory **R.S.A. No.544 of 2010** -: 19 :- injunction from dealing with the plaint schedule property. Parties to bear their respective costs. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge