Prabhakumari and Beenakumari v. S. Mohanarajan; K.S. Shajikumaar; The Re-Survey Superintendent (Punalur)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.ANIL KUMAR TUESDAY, THE 29[TH] DAY OF JUNE 2021 / 8TH ASHADHA, 1943 RSA No.378 OF 2020 AS 86/2018 ON THE FILE OF THE II ADDITIONAL DISTRICT COURT, KOLLAM DTD.31.10.2019 O.S.No.772/2014 ON THE FILE OF THE ADDITIONAL MUNSIFF'S COURT, KOLLAM DTD.12.04.2017 ## APPELLANTS/APPELLANTS/PLAINTIFFS: 1 PRABHAKUMARI, AGED 59 YEARS, D/O. LATE AMBIKAKUMARI, 'GOKULAM', ARN-62, THEKKEVILA P.O., MUNDAKKAL VILLAGE, KOLLAM-691 016. 2 BEENAKUMARI, AGED 57 YEARS, D/O. LATE AMBIKAKUMARI, 'NANDAGOKULAM', No.155, KAVERAPPA LAYOUT, MARUTHAHALLI, OUTER RING ROAD, PANATHUR P.O., BANGALORE-560 103. BY ADVS. SRI.SHABU SREEDHARAN SHRI.NITIN RAJAN NAIR SHRI.UNAIS.K.P. SHRI.JOBIN JOSE.P. SMT.RADHIKA U. ## RESPONDENTS/RESPONDENTS/DEFENDANTS: - 1 S.MOHANARAJAN, AGED 65 YEARS, S/O. LATE SADASIVAN, 'AMBIKA NIVAS,' MUNDAKKAL MIDDLE, MUNDAKKAL VILLAGE, KOLLAM-691 001. - 2 K.S.SHAJIKUMAR, AGED 62 YEARS, S/O.LATE SADASIVAN, 8TH FLOOR, HEERA PLAZA, PATTOM P.O., THIRUVANANTHAPURAM-695 004. - 3 THE RE-SURVEY SUPERINTENDENT (PUNALUR), MUNICIPAL BUILDINGS, CHINNAKKADA, KOLLAM-691 001. ## R3 BY GOVT.PLEADER SRI.P.M.SATHISH THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24.06.2021, THE COURT ON 29.06.2021 DELIVERED THE FOLLOWING: R.S.A.No.378 of 2020 ..2.. ## **[CR]** ## **JUDGMENT** This appeal is directed against the judgment and decree dated 31.10.2019 in A.S.No.86/2018 on the file of the Additional District Court-II, Kollam (hereinafter referred to as 'the first appellate court') which arose out of the judgment and decree dated 12.4.2017 in O.S.No.772/2014 on the file of the Additional Munsiff's Court, Kollam (hereinafter referred to as 'the trial court'). The plaintiffs are the appellants. The parties are hereinafter referred to as described in O.S.No.772/2014 unless otherwise stated. 2. Brief facts of the case necessary to be noted for deciding this appeal are as under:- The plaintiffs and defendants 1 and 2 are the children of Sadasivan and Ambikakumari. On 28.10.1998, Sadasivan and Ambikakumari jointly executed a registered R.S.A.No.378 of 2020 ..3.. Will in favour of the defendants 1 and 2 in respect of an area of 4.07 Ares of property. There was a clause in the said Will to the effect that on the death of one of the executants, the other shall get the absolute right over the said property and has the liberty to alienate the property or to cancel the said Will in whole or in part or to execute a fresh Will. Sadasivan died on 26.8.1992. Subsequently, Ambikakumari executed another Will on 17.3.2003 in respect of the said property in favour of the plaintiffs. Ambikakumari died on 9.1.2009. The 1[st] plaintiff preferred an application dated 20.4.2009 before the Village Officer, Mundakkal seeking to get effected mutation of the said property in favour of the plaintiffs on the strength of the Will deed dated 17.3.2003. Then only, the plaintiffs came to know that the defendants 1 and 2 got effected mutation of the said property in their favour from the 3[rd] defendant by suppressing the execution of the subsequent Will. R.S.A.No.378 of 2020 **==> picture [22 x 8] intentionally omitted <==** Thereupon, the 1[st] plaintiff preferred a complaint before the Land Revenue Commissioner seeking to cancel the order passed by the 3[rd] defendant effecting mutation of the said property in favour of the defendants 1 and 2. Since no favourable action was taken, the plaintiffs filed a writ petition before this Court seeking appropriate directions. However, this Court dismissed the writ petition reserving the right of the parties to approach before the competent forum in accordance with law. Accordingly, the plaintiffs filed the present suit to declare the Will deed No.41/1985 became ineffective and non-existent and further declare that the order dated 14.10.2009 passed by the 3[rd] defendant in favour of the 1[st] and 2[nd] defendants is null and void. In addition to the above, a decree for mandatory injunction directing the 3[rd] defendant to effect mutation of the plaint schedule property having an extent of 4.07 Ares comprised in Re.Sy.110/32 of Mundakkal R.S.A.No.378 of 2020 **==> picture [22 x 8] intentionally omitted <==** Village in favour of the plaintiffs on the strength of the Will deed No.43/2003 is sought for. 3. The defendants 1 and 2 filed written statement denying the execution of the second Will contending that Ambikakumari was laid up on the alleged date of execution of the said Will. It was further contended that, taking advantage of the custody of Ambikakumari during the fag end of her life, the plaintiffs fraudulently created the alleged Will deed No.43/2003. The parents of the plaintiffs and defendants had never disposed of the property during their life time. Hence the Will deed No.41/1985 had come into effect and accordingly the defendants were put in possession of the property as absolute owners thereof. According to the defendants 1 and 2, the plaintiffs have no cause of action to institute the suit. The 3[rd] defendant also filed the written statement denying the allegations against him in the suit and R.S.A.No.378 of 2020 **==> picture [22 x 8] intentionally omitted <==** seeking to dismiss the same. 4. After framing the issues, the trial was conducted. On the side of the plaintiffs, the 1[st] plaintiff got examined as PW1, the Village Officer got examined as PW2, the Sub Registrars got examined as PWs.3 and 4, husband of the 1[st] plaintiff got examined as PW5, one of the attesting witnesses of the Will got examined as PW6, Exts.A1 to A13 and Exts.X1 to X3 series got marked. The defendants adduced no evidence. 5. The trial court dismissed the suit as per the judgment and decree dated 12.4.2017. The plaintiffs preferred A.S.No.86/2018 before the District Court, Kollam against the said judgment and decree. On getting made over the appeal, after having heard both sides, the Additional District Court-II, Kollam dismissed the same as per the judgment and decree dated 31.10.2019. Being dissatisfied with the judgment and decree passed by the R.S.A.No.378 of 2020 **==> picture [22 x 8] intentionally omitted <==** courts below, the plaintiffs have filed this R.S.A. before this Court. 6. On appreciation of the evidence, the trial court held that Will deed No.41/1985 cannot be declared as void as prayed for in the plaint. Thus, the trial court held that the order of the 3[rd] defendant allowing to effect mutation in the name of the 1[st] and 2[nd] defendants cannot be declared invalid. This finding has been confirmed in appeal by the first appellate court. 7. Heard Smt.U.Radhika, the learned counsel for the appellants and Sri.P.M.Sathish, the learned Government Pleader for the 3[rd] respondent. 8. The learned counsel for the appellants contended that the trial court is not justified in finding that the plaintiffs could not prove the genuineness of the due execution of Ext.A3 Will and that the plaintiffs could not establish the mandates required for proving the R.S.A.No.378 of 2020 **==> picture [22 x 8] intentionally omitted <==** execution of the Will. It was further contended that the first appellate court is unjustified in treating the main prayer in the suit as paradoxical by saying that in the event of declaring Ext.A1 Will deed as ineffective and nonexistent, as a natural consequence, the legal sanctity of Ext.A3 Will deed will be totally effaced. The learned counsel for the appellants further contended that one of the attestors in the Will alone was examined before the trial court and non-examination of the other witnesses before the court to supplement the evidence has caused great prejudice to the appellants. 9. Ext.A1 Will No.41/1985 was jointly executed by the father and mother of the plaintiffs and defendants. The property mentioned in Ext.A1 originally belonged to the father of the parties to the suit. Ext.A1 contains specific provision for providing properties to the plaintiffs in the suit as well. There is a specific covenant in Ext.A1 R.S.A.No.378 of 2020 **==> picture [22 x 8] intentionally omitted <==** Will that on the demise of any of the executants, the other shall have the right to revoke the Will and can execute another Will or dispose of the property in any manner. Ext.A3 Will No.43/2003 was executed by Ambikakumari, the mother of the plaintiffs and defendants immediately after the death of their father. 10. As indicated earlier, as per the mandate in Ext.A1 Will, the bequeath therein Will come into effect only after the death of both the testators and on the death of one of the testators, the surviving testator will get absolute right over the property along with the right to alienate the same or to cancel the Will deed in whole or in part, or to execute a fresh Will deed. Subsequently, on 26.8.1992, father Sadasivan died and thereby as per the stipulation contained in the Will deed, mother Ambikakumari became the absolute title holder in possession of the property. On the basis of the right thus R.S.A.No.378 of 2020 ..10.. flowed to her, on 17.3.2003, Ambikakumari had executed Ext.A3 Will deed through which the aforesaid property was bequeathed in favour of the plaintiffs. Therefore, it is contended that subsequent to the execution of Ext.A3 Will deed the previous Will (Ext.A1) bequeathing the properties to the defendants 1 and 2 has become inactive and the terms of the subsequent Will deed will prevail over the earlier Will deed. The allegation of execution of Ext.A3 Will deed is denied by the defendants. According to them, during the said period, Ambikakumari was living along with the 1[st] plaintiff and taking advantage of such a situation, the disputed Will was executed under suspicious circumstances. 11. Ext.A1 is a mutual Will. A mutual Will is a separate Will of two or more persons which is reciprocal in its provisions and executed in pursuance of a contract or an agreement between two or more persons to dispose of R.S.A.No.378 of 2020 **==> picture [28 x 8] intentionally omitted <==** their property to each other or to third persons in a particular mode or manner. However, a joint Will is a single testamentary instrument constituting or containing the Will of two or more persons and jointly executed by them. In **Kochu Govindan Kaimal & others v. Thayankoot Thekkot Lakshmi Amma & others** [AIR 1959 SC 71], the distinction between a mutual Will and a joint Will is pointed out as follows:- _“A Will is mutual when two testators confer upon each other reciprocal benefits, as by either of them constituting the other his legatee; that is to say, when the executants fill the roles of both testator and legatee towards each other. But where the legatees are distinct from the testators, there can be no question of a mutual will.”_ 12. The Apex Court in the case of **K.S.Palanisami (Dead) through legal representatives v. Hindu Community in General and Citizens of Gobichettipalayam & others** [(2017) 13 SCC 15] ruled R.S.A.No.378 of 2020 ..12.. upon the issue of whether a testatrix had an absolute right to deal with the properties under a joint and mutual Will. In paragraph 56 of the judgment it is stated as follows:- “ _We do not find any word or any indication in the will to give a life estate to the survivor. The will clearly intended that the survivor shall have absolute right over the properties and after his/her death; the charity shall be carried out from the income of the properties without alienation of the properties.”_ 13. The Apex Court consequentially held in paragraph 73 of the judgment that Smt.Rangammal, testatrix has the absolute right to deal with the properties mentioned in the will and alienation made by her during her lifetime are saved by the will and the judgment of the High Court holding sales in favour of the appellant as null and void is unsustainable. R.S.A.No.378 of 2020 ..13.. 14. Going by the terms of Ext.A1 Will, the intention of the testator is evident from the language of the document itself. Of course, Ext.A1 Will enables the survivor to cancel the same as it contains a clause that the bequeath therein will come into effect only after the death of both testators and on the death of one of the testators, the surviving testator will get absolute right over the property along with the right to alienate the same. Thus it is clear that Ext.A1 Will intended to give the survivor absolute right of alienation with regard to the properties covered therein. The intention in Ext.A1 disposition has to be primarily found out from the actual words used in the Will. The court is not entitled to ignore clear words or add something of its own or dilute the meaning of any clear word used in Ext.A1. The primary duty of the court is to find out the intention of the testator and thereafter to give effect to such intention. On a R.S.A.No.378 of 2020 ..14.. reading of Ext.A1, the intention of the testator, it is clear that the survivor shall have absolute right of enjoyment of properties. In view of the above, the survivor has absolute right of alienation as well. 15. Section 68 of the Indian Evidence Act, 1872 (hereinafter referred to as 'the Evidence Act') provides that a Will is compulsorily to be attested. Section 63 of the Indian Succession Act, 1925 (hereinafter referred to as 'the Succession Act') further provides that the Will is compulsorily to be attested by two or more witnesses. For execution and attestation, the propounder of the Will has to prove that there are two witnesses who saw the testatrix signing the Will and the attesting witnesses have signed the Will in the presence of the testatrix. 16. In the case on hand, PW6 one of the attesting witnesses in Ext.A3 Will was examined. PW6 stated that Ambikakumari came to his house on the date of execution R.S.A.No.378 of 2020 **==> picture [28 x 8] intentionally omitted <==** of Ext.A3 Will and from there both of them went to the Sub Registrar's Office to get the Will executed. He identified the signature of Ambikakumari before court. He further stated that he had signed as an attestor after Ambikakumari put her signature. It is pertinent to note that he had not stated that he had seen Ambikakumari signing Ext.A3 Will. According to him, one Sundaresan was also present as an attesting witness to the document. However, on a perusal of Ext.A3, it is seen that Sundaresan was not an attesting witness therein. Instead, one Aneesh Kumar had signed the Will as one of the attesting witnesses. Evidently PW6, who was present along with him on the date of execution, was not aware of the other attesting witness. He had not adduced evidence to show that other attesting witness had signed in his presence. Aneesh Kumar, one of the attesting witnesses in Ext.A3, was not examined as a witness before the trial court. R.S.A.No.378 of 2020 **==> picture [28 x 8] intentionally omitted <==** 17. Section 68 of the Evidence Act postulates the mode and manner in which proof of execution of document is required by law to be attested. The Will must be attested by two or more witnesses, each of whom has seen the testator signing or affixing his mark to the Will or has received personal acknowledgment from the testator on his signature or mark. Besides this, it is also necessary that each of the attesting witnesses should sign the Will in the presence of the testator (see **Madhukar D.Shende v. Tarabai Aba Shedage** [(2002) 2 SCC 85], **Janki Narayan Bhoir v. Narayan Namdeo Kadam** [(2003) 2 SCC 91], **Bhagat Ram & another v. Suresh & others** [(2003) 12 SCC 35] and **Benga Behera & another v. Braja Kishore Nanda & others** [AIR 2007 SC 1975]). From the evidence of PW6 examined on behalf of the plaintiffs, it is clear that the plaintiffs have not been able to prove that the Will was executed by the testatrix in R.S.A.No.378 of 2020 **==> picture [28 x 8] intentionally omitted <==** favour of the plaintiffs by two attesting witnesses as required by law. 18. The first appellate court examined the evidence on record at length and arrived at a logical conclusion that Ext.A3 Will was not proved. The finding is based on cogent and binding evidence on record including the provisions contemplated under Section 63 of the Succession Act and Section 68 of the Evidence Act. The conclusion of the trial court and the first appellate court negativing the contentions of the plaintiffs on the strength of Ext.A3 Will does not warrant interference in a second appeal. By virtue of Section 63 of the Succession Act and Section 68 of the Evidence Act, the general principles to be applied to determine the question involved in the suit are well settled. Well settled principles would not be a substantial question of law as contemplated under Section 100 of the Code of Civil Procedure. Going by the evidence adduced in R.S.A.No.378 of 2020 **==> picture [28 x 8] intentionally omitted <==** this case, there is no controversy before this Court with regard to interpretation or legal effect of Ext.A3 or any wrong application of a principle of law in construing Ext.A3. There is no debatable issue before this Court which is not covered by settled principles of law. Resultantly, this R.S.A. is dismissed in limine. There will be no order as to costs. Pending applications, if any, stand disposed of. Sd/- **N.ANIL KUMAR, JUDGE** skj