Menakshy Amma and Komalam Amma v. Thankappan Nair and Lakshmikutty Amma and Kuttan @ Narayanankutty and Radhakrishnan and Ichikutty Amma and Madhvi Amma

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 SA.No. 551 of 1999(G) --------------------AS.325/1995 of IST ADDL.DISTRICT COURT, THRISSUR OS.2220/1984 of III ADDL. MUNSIFF COURT.,THRISSUR .................... APPELLANTS/RESPONDENTS/PLAINTIFFS: - -------------------1. MENAKSHY AMMA, W/O.LATE KIZHAKKOOT NARAYANAN NAIR, VELUTHUR DESOM, PERINGAVU VILLAGE, THRISSUR TALUK. 2. KOMALAM AMMA, W/O.KONGOTH GOPALANKUTTY MENON AND D/O.MEENAKSHY AMMA & LATE KIZHAKKOOT NARAYANAN NAIR, VELUTHUR DESOM, PERINGAVU VILLAGE, THRISSUR TALUK. (THE IST APPELLANT DIED ON 21-4-1997 AND 2ND APPELLANT IS THE ONLY LEGAL REPRESENTATIVE OF THE IST APPELLANT-- MEMO RECORDED ON 10/8/10) ## BY ADV. SRI.K.S.BABU SMT.N.SUDHA SRI.O.RAMACHANDRAN NAMBIAR RESPONDENTS/APPELLANTS/DEFENDANTS: - --------------------1. THANKAPPAN NAIR, S/O.KIZHAKKOOT NARAYANAN NAIR, PERINGAVU VILLAGE, THRISSUR TALUK. 2. LAKSHMIKUTTY AMMA, D/O.KIZHAKKOOT NARAYANAN NAIR, PERINGAVU VILLAGE, THRISSUR TALUK. 3. KUTTAN @ NARAYANANKUTTY, S/O.KIZHAKKOOT NARAYANAN NAIR, PERINGAVU VILLAGE, THRISSUR TALUK. 4. RADHAKRISHNAN, S/O.KIZHAKKOOT NARAYANAN NAIR, PERINGAVU VILLAGE, THRISSUR TALUK. 5. ICHIKUTTY AMMA, W/O.KIZHAKKOOT NARAYANAN NAIR, PERINGAVU VILLAGE, THRISSUR TALUK. 6. MADHVI AMMA, D/O.KIZHAKKOOT NARAYANAN NAIR, PERINGAVU VILLAGE, THRISSUR TALUK. ADV. SRI.P.V.CHANDRA MOHAN FOR R1 TO 5 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **HARUN-UL-RASHID,J. -----------------------------S.A.NO.551 OF 1999 ------------------------------DATED THIS THE 10TH DAY OF AUGUST, 2010 JUDGMENT** Plaintiffs in O.S.No.2220/84 on the file of the Munsiff's Court, Thrissur are the appellants. The appeal is directed against the judgment and decree in A.S.No.325/1995 on the file of the District Court, Thrissur. The suit was filed for partition. The trial court passed a decree declaring that the plaintiffs 1 and 2 and the defendants 1 to 4 are entitled to equal share in the plaint schedule property left behind by their father, deceased Narayanan Nair. The Appellate Court allowed the appeal preferred by the defendants, set aside the decree and judgment under appeal and dismissed the suit. The parties hereinafter are referred to as the plaintiffs and defendants as arrayed in the suit. 2. The short facts leading to the filing of the case **-2-** S.A.551/99 are as follows: Plaintiffs 1 and 2 are the wife and daughter of deceased Narayanan Nair. Defendants 1 to 4 are also the children of deceased Narayanan Nair born through his second wife. The 5[th] defendant is the 2[nd] wife. Narayanan Nair died on 24/6/1983. According to the plaintiffs, after the death of Narayana Nair, the plaint schedule property is in the joint possession and enjoyment of the plaintiffs and defendants. The plaintiffs also contended that the 5[th] defendant is not the legally wedded wife of Narayanan Nair and therefore, she is not entitled to any share in the property. 3. In the joint written statement filed by defendants 1 to 5 they denied the plaint averments and prayed for dismissal of the suit. According to the defendants, the plaintiffs are aware that late Narayanan Nair executed the Will in the year 1972, that the property is in the exclusive possession and enjoyment of defendants 1 to 6 and that the deceased Narayanan **-3-** ## S.A.551/99 Nair originally married the lst plaintiff, subsequently divorced her and married the 5[th] defendant as his second wife. It is also contended that at the time of his death the 5[th] defendant is his wife. It is further stated that deceased Narayanan Nair executed a Will in the year 1972 and that the same was registered as document No.98/1972. In the will the deceased Narayanan Nair had not only bequeathed the property to his 2[nd] wife and children, but also bequeathed a portion of his property to his niece, who is the 6[th] defendant in the suit. It is also pleaded that Narayanan Nair passed away after 13 years from the date of the Will. Plaintiffs filed a replication saying that the deceased Narayanan Nair had not executed any such Will on account of his free Will with sound disposing mind, that the Will said to be executed by the deceased is invalid, that the deceased was mentally retarded and was laid up for about 15 years before his death, that he was not in a position to execute any Will on account of his free Will and that the Will has been got executed on account of **-4-** ## S.A.551/99 inducement and undue influence and therefore it is not binding on the plaintiffs. 4. The lst defendant was examined as DW-1, DW-2 is a Clerk of the Sub Registrar's Office, who has produced Ext.X1 thumb impression register and Ext.X2 filing copy of the Will, DW-3, is the son of one of the attesting witnesses, DW-4 is the Sub Registrar, Thrissur, DW-5 is the document writer and DW-6 is the scribe. The 2[nd] plaintiff was examined as PW-1. Exts.A1 and A2 and B1 to B5 are the documents produced by the plaintiffs and defendants. Ext.B5 is a registration copy of the Will executed on 17/8/1992 and registered as document No.98/72 of S.R.O., Thrissur on 19/8/1972. The defendants in the suit claimed that the Will was executed by the deceased on 19/8/1972. It is also submitted by the defendants that the original of the Will is not available. The defendants therefore sought to prove the execution of the Will by producing registration copy of the Will and summoning the filing copy (Ext.X2(a) is the **-5-** ## S.A.551/99 certified copy of filing copy) and Ext.X1(a) thumb impression register from S.R.O., Thrissur. The defendants examined Dws.1 to 5 on their side to prove the execution, attestation and registration of the Will. 5. The 2[nd] plaintiff examined as PW-1, the daughter of Narayanan Nair, testified before the court below that her father was laid up for about 15-16 years before death, that she is not aware of the Will executed by her father, that at the time when the alleged Will was executed, the deceased was not in normal senses and that he was unable to execute any instrument during that period. Contrary to the evidence tendered by PW-1, the 1[st] defendant examined as DW-1, testified before the court below that the Will was executed on l7/8/1972, that he learned about the Will only after the death of the deceased, that both the attesting witnesses in the Will were dead and that the deceased was of sound state of mind till his death. He also testified that the Will was executed by the testator voluntarily and **-6-** ## S.A.551/99 it was presented personally before the Sub Registrar's Office for registration. He further testified that he learned about the Will from Ext.B4 receipt issued from the Office of the Sub Registrar for payment of registration fee and Ext.B4 had been kept in the text of Ramayana belonging to the deceased. He also denied the case of the plaintiffs that the deceased was not in sound state of mind at the time of execution of the Will. DW-1 identified the signature in Exts.X1(a) and X2(a) as that of the deceased. DW-3 is the son of one of the attestors. It is not disputed that both the attestors were not alive and therefore not available for examination. DW-3 testified before the court below that his father died on 9/11/1991 and that the 2[nd] attestor is his uncle and that his uncle also died during 1975-76. DW-4 is the Sub Registrar. Ext.X1 is the register containing the thumb impressions of the executants. Serial No.5 in Ext.X1(a) is the signature of Narayanan Nair. Ext.X2 is the book containing the filing copy of the Will executed by Narayanan Nair. DW-4 Sub **-7-** ## S.A.551/99 Registrar testified that the deceased Narayanan Nair had signed the filing copy in the presence of the then Sub Registrar. He was examined to prove Exts.X1(a) register and Ext.X2 book containing the filing copy of the Will. He also testified that Ext.B4 is the receipt issued by his office to the executant. DW-5 is the document writer, who testified that during 1972 DW-6 the scribe was working with him, that Ext.X2(a) is in the handwriting of DW-6 and that DW-6 drafted Ext.X2(a) on 17/8/1972 as dictated by him. He also testified that Narayanan Nair had signed the Will at his office. DW-5 also testified that Naryanan Nair was in sound state of mind and he was instrumental in the execution of the Will and that he was known to him for the last several years prior to the execution of the Will. DW-6, the scribe also testified before the court below that he signed Ext.X2(a). He admitted that he had been working with DW-5 during the relevant time. He also testified that Ext.X2(a) is in his handwriting and that he and the deceased had signed Ext.X2(a). **-8-** S.A.551/99 6. The court below examined the question as to whether the defendants have been able to prove the due execution and attestation of the Will. According to the defendants, no suspicious circumstances have been brought out surrounding the execution of the Will, that they have adduced sufficient evidence to prove the execution, attestation and registration of the Will, and that they have also adduced evidence to prove that no suspicious circumstances have been brought out surrounding the execution of the Will, as contended by the plaintiffs. Both the courts below in detail analysed and discussed the evidence recorded in the case. It has come out in evidence that both the attesting/identifying witnesses in the Will were not alive at the time of trial of the suit. The Will is sought to be proved by production of Ext.B5 registration copy, Ext.X2 (a) filing copy of the Will and Ext.B4 receipt issued for payment of registration fee. 7. Section 68 of the Evidence Act prescribes the **-9-** ## S.A.551/99 mode of proof of the Will. Under Section 68 of the Act, Will shall not be used in evidence until one attesting witness has been called for the purpose of proving its execution, if there is an attesting witness alive and is capable of giving evidence. Section 69 provides the mode of proof where no attesting witness could be found. The evidence regarding execution, attestation and registration of the Will was tendered by DWs. 4 to 6. DW-1 came to know about the Will only from Ext.B4, the receipt issued to the executant for payment of the registration charges, which according to DW-1, he traced out from the text of Ramayana belonging to the deceased. He identified the signature of his father in Exts.X1(a) and X2(a). The evidence tendered by DW-4 also pointed out that the Will was executed by the deceased Narayanan Nair. Ext.X1(a) is the relevant page of the register containing signature and thumb impression of the deceased. Ext.X2(a) is the relevant pages from the register containing the filing copy of the Will. The evidence of Dws.5 and 6 also shows **-10-** ## S.A.551/99 due execution, attestation and registration of the Will. 8. The learned counsel for the plaintiffs contended that due execution/attestation of the Will is not proved. According to the learned counsel, the signature of the attesting witnesses is not proved, neither DW-5 nor DW-6 are the attesting witnesses to the Will nor they have seen the deceased signing the Will and that these are all suspicious circumstances surrounding the execution of the Will. The learned counsel also contended that the testator bequeathed the entire property in favour of defendants 1 to 5 and that the same is also another suspicious circumstance surrounding the execution of the Will. The court below considered these contentions and observed that there is no reason to conclude that what was given or said to be given to the plaintiffs as share in Ext.B5 is an immovable property. Ext.B5 only says that a share of the property of the deceased was given to the plaintiffs and that the same need not necessarily be a share in the landed properties. The Lower **-11-** ## S.A.551/99 Appellate Court observed that the 2[nd] plaintiff daughter was aged around 53 years at the time of filing the suit, that the deceased has given assistance to her at the time of her marriage and that it may be the reason why such a statement was made in the Will to disinherit the plaintiffs. The trial court held that the registration of the Will is an important circumstance regarding the genuineness of the Will; but the registration itself is not sufficient to remove all suspicious circumstances. Referring to Section 68 of the Evidence Act the trial court held that in the case of a Will at least one attesting witness was called for for proving the execution of the Will. Since both the attesting witnesses were not alive, it is observed that the defendants could not produce the witnesses, who can identify the signature of the deceased. It is also observed that the defendants have examined the scribe of the Will for identifying the signature of the testator. But the trial court held that the evidence adduced by the defendants for such proof is not accepted under Section 68 of the Evidence Act. The **-12-** ## S.A.551/99 trial court also found that there is a statement that the plaintiffs were given properties at the time therefore, they are excluded from sharing the properties covered by the Will. Relying on the evidence of PW-1 the trial court held that there is no evidence to prove that the testator had given properties to the plaintiffs. 9. The Lower Appellate Court has also considered this question and rightly observed that there is no reason to conclude that what was given or said to be given to the plaintiffs as shares is any immovable property and that Ext.B5 only says that a share of the property of the deceased was given to the plaintiffs. The Appellate Court held that the property referred need not necessarily be a share in the landed properties. It also observed that the 2[nd] plaintiff was aged 53 years at the time of filing the suit and that the deceased might have given assistance to her at the time of her marriage. The trial court, after referring to Section 68 of the Indian Evidence Act and after discussing the recitals in Ext.B5, concluded that the Will executed by the **-13-** ## S.A.551/99 deceased Narayanan Nair is not genuine. I have perused the trial court's judgment in detail. I find that the only reason stated for finding that the Will is not genuine is the reason stated above. The said reason is not at all sufficient to record the finding about the genuineness of the Will. In fact the evidence adduced by the defendants removes the suspicious circumstances alleged by the plaintiffs and is also the sufficient proof regarding the execution, attestation and registration of the Will. The Appellate Court relied on the relevant provisions of the Indian Evidence Act and discussed the evidence adduced by the defendants in support of the proof of the execution of the Will. The evidence adduced by the defendants, their witnesses and documentary evidence and all other circumstances were elaborately discussed and on the basis of those materials, the Lower Appellate Court concluded that due execution of the Will is proved. I have also discussed the oral evidence tendered by the parties, which are relied on by the Lower Appellate Court. The Lower Appellate Court also **-14-** S.A.551/99 discussed the settled position of law regarding attestation and proof of execution of the Will. The Lower Appellate Court relied on the decisions reported in **K.M. Varghese & another v. K.M.** **Omen and others (1994 (2) KLJ 393), Dhyanchand v. Savithri Devi and others (AIR 1998 HP 37), Mathew v. Devassykutty (1988 KLT 184) and Prakash Tewari V. Chandan Bibi (AIR 1916 Calcutta 374).** Following the legal principles the Appellate Court held that there is evidence to prove that the Will was presented for registration by the deceased himself and he signed the instrument in the presence of the Sub Registrar. The Appellate Court also referred to Exts.X1(a) and X2(a) and held that the signatures in these two documents are identical. DW-1 identified the signatures as that of the deceased. The Appellate Court also observed that there is no serious challenge to that version of DW1. The Appellate Court examined the question as to whether the execution of the instrument is proved in the manner stated in Section 68 of the **-15-** ## S.A.551/99 Evidence Act, notwithstanding the absence of any specific denial of the execution. The contention of the plaintiff that the Will was got executed under undue influence and that the deceased was not in sound disposing mind etc. is also considered in detail and found against. The Appellate Court found that the Will was executed by the deceased on his own free will and he was in sound disposing state of mind at the relevant time. The Appellate Court found that the evidence adduced by the plaintiffs are not sufficient enough to prove that the deceased was not mentally sound to execute the will or that the Will was not executed by the deceased on his own free Will and that he was not in sound disposing state of mind. The Appellate Court also examined the mental capacity of the deceased to execute the Will. The contentions of the plaintiffs that the deceased was mentally retarded and was laid up for about 15 years before his death and that he was not in his normal senses at the time of execution of the Will are disbelieved. The Appellate Court held that there is **-16-** ## S.A.551/99 absolutely no evidence to show that the deceased was mentally retarded or was not in his normal senses during 1972. Positively, the court found that the deceased was mentally and physically healthy at the time of execution of the Will. The court also found that the Will was registered and the endorsement made by the Registrar in the Will indicates that the deceased was in sound state of mind at the time of execution and registration of the Will. 10. The Appellate Court also noted the proved fact that the deceased Narayanan Nair married the 5[th] defendant about 40 years before his death and since then the deceased had been staying with the 5[th] defendant and her children. The Appellate Court also noted the fact that the testator wanted the properties to be inherited by the 5[th] defendant, who not being his legally wedded wife, would not have otherwise inherited any portion of it. The Appellate Court appreciated the execution of the Will in the aforesaid background as well. The Appellate Court further held that it is difficult to think that if the Will was **-17-** ## S.A.551/99 forged by any of the defendants, there may not be a provision for giving a portion of the properties to the 6[th] defendant, a niece of the deceased and it is unlikely that about 11 years before the death of the deceased a Will purporting to be that of the deceased was got executed and registered. The Appellate Court concluded that the evidence on record does not justify the conclusions arrived at by the court below that the execution and attestation of the Will is not proved. 11. The facts, evidence and circumstances discussed above make it clear that the suit was dismissed by the Appellate Court after appreciation and the examination of the relevant facts. The decision was taken on the basis of the facts and circumstances, which would go to show that the deceased had executed the Will on 17/8/1972 bequeathing the properties to defendants 1 to 6. I find that the appellants have not made out any valid grounds to interfere with the findings of facts. No question of law much less any substantial questions of law arise **-18-** S.A.551/99 for consideration in the second appeal. In the result, the appeal fails and accordingly dismissed. No order as to costs. **HARUN-UL-RASHID, JUDGE.** **kcv** **-19-** ## S.A.551/99 **HARUN-UL-RASHID,J. -------------------------S.A.NO.551 OF 1999 --------------------------** ## **JUDGMENT** **10[th] August, 2010**