Prameela D/o Late Pachan and Devu U., W/o Late Pachan v. Jayaprakasan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 8[TH] DAY OF NOVEMBER 2021 / 17TH KARTHIKA, 1943 RSA NO. 1555 OF 2012** **AGAINST THE DECREE AND JUDGMENT DATED 29.02.2012 IN AS 317/2008 OF II ADDITIONAL DISTRICT COURT & SESSIONS** ## **COURT,PALAKKAD** **AGAINST THE DECREE AND JUDGMENT DATED 25.07.2008 IN OS 283/2006 OF PRINCIPAL MUNSIFF COURT, PALAKKAD** ## **APPELLANTS/APPELLANTS/PLAINTIFFS NO.2 AND 3:** 1 PRAMEELA D/O.LATE PACHAN, "NALANDA", NEAR MARIYAMMAN KOVIL,KALLEKULANGARA P.O., PALAKKAD 2 DEVU U., W/O.LATE PACHAN, “NALANDA” NEAR MARIYAMMAN KOVIL KALLEKULANGARA P.O., PALAKKAD. BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P ## **RESPONDENT/RESPONDENT/DEFENDANT:** JAYAPRAKASAN, S/O LATE PACHAN, DIVINE COTTAGE NEAR EASWARAMANGALAM TEMPLE, KALLEKULANGARA P.O.,PALAKKAD - 678 001. BY ADVS. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON 08.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **RSA NO.1555/2012** **2** ## **K.BABU, J.** ------------------------------------------- ## R.S.A. No.1555 of 2012 --------------------------------------------- Dated this the 08[th] day of November, 2021 ## **JUDGMENT** This Regular Second Appeal emanates from the judgment and decree in OS No.283/2006 passed by the Principle Munsiff's Court, Palakkad. The Additional District Court, Palakkad, as per judgment and decree dated 29.02.2012 in AS No.317/2008 confirmed the decree of the Trial Court. 2. The facts giving rise to the present appeal are as follows: 2.1 Plaintiffs 1 and 2, and the defendant are the issues of Pachan, a Railway employee who died on 27.07.1987. Plaintiff No.3 is the wife of Late Pachan. 2.2. The plaintiffs instituted the Original Suit seeking partition of the plaint schedule property having an extent of 6.5 Cents and a residential building thereon. Defendant resisted the suit, raising the contention that Late Pachan had **RSA NO.1555/2012** **3** bequeathed the plaint schedule property in favour of him as per a Will executed on 11.11.1985. 4. The parties went on trial. The evidence consists of the oral evidence of PW1 and DWs 1 and 2, Exts.A1 to A3 marked on the side of the plaintiffs and Ext.B1 marked on the side of the defendant. 5. The Trial Court held that as per Ext.B1 Will late Pachan had bequeathed the property in favour of the defendant and the testament has come to effect. Therefore, the Trial Court dismissed the suit holding that the plaint schedule property was not available for partition. The First Appellate Court confirmed the decree and judgment of the Trial Court. 6. The plaintiffs are in appeal under Section 100 of the Code of Civil Procedure aggrieved by the judgment and decree of the First Appellate Court. 7. After hearing both sides, this Court re-formulated the substantial questions of law as follows: (i) Have the Courts below acted in accordance with law in the matter of appreciating the **RSA NO.1555/2012** **4** ## evidence on record? (ii) Have the Courts below drawn the necessary inferences and presumptions that would apply on the facts and circumstances of this case? 8. Heard Sri.Sajan Vargheese, the learned counsel appearing for the appellants/plaintiffs and Sri.K.V. Sohan, the learned counsel appearing for the respondent/defendant. 9. The question that falls for consideration in the Second Appeal is whether the propounder (the defendant) has established the due execution of Ext.B1 Will by Late Pachan. - 10. The law relating to the proof of execution of a Will: In order to prove the due execution of a Will, statutory provisions contained in Sections 67 and 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act have to be complied with. Under Section 67 of the Evidence Act, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting. Section 68 of the Act deals with proof of execution of a document required by law to be attested. It is **RSA NO.1555/2012** **5** said that such a document shall not be used as evidence until one attesting witness at least has been called for, for the purpose of proving its execution. These provisions of the Evidence Act prescribe the requirements and the nature of proof which must be satisfied by the parties who rely on the documents. For a Will to be accepted in evidence, special proof regarding attestation as required by Section 63 of the Indian Succession Act has to be adduced. In _**H.Venkatachala Iyengar v. B.N. Thimmajamma [AIR 1959 SC 443],**_ the Hon'ble Supreme Court laid down the following propositions while dealing with the nature and standard of evidence required to prove a Will:- _“1. Stated generally, a Will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of Wills, one cannot insist on proof with mathematical certainty._ _2. Since S. 63 of the Succession Act requires a Will to be attested, it cannot be used as evidence until, as required by S. 68 of the Evidence Act, 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._ _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_ **RSA NO.1555/2012** **6** _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 go into the making of the Will._ _4. Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing and in such cases the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.”_ ## 11. _**In Smt.Jaswant Kaur v. Smt.Amrit Kaur & Others**_ _**[(1977) 1 SCC 369]**_ , following the principles laid down in **H. Venkatachala Iyengar (supra)** , a three Judge Bench of the Hon'ble Apex Court held that in cases where the execution of a Will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the court that the Will was duly executed by the testator. It was further held that it is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will. **RSA NO.1555/2012** **7** 12. In _**H.Venkatachala Iyengar (supra),**_ the Hon'ble Apex Court enumerated the following circumstances to be relevant for determination of the existence of suspicious ## circumstances:- - “(i) _When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will._ - _(ii) When the disposition appears to be unnatural or wholly unfair in the light of relevant circumstances._ - _(iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit._ ” 13. The learned counsel for the appellants contended that the defendant failed to establish the genuineness of Ext.B1 Will and both the First Appellate Court and the Trial Court lost sight of the fact that there was a specific challenge on the genuineness. 14. The learned counsel for the respondent/defendant Sri.K.V. Sohan submitted that the defendant could prove the due execution of the Will and rule out all suspicious circumstances surrounding the making of the Will. 15. Late Pachan was employed in the Indian Railways. He committed suicide on 27.07.1987. Ext.B1 Will was executed on 11.11.1985. To prove the execution of **RSA NO.1555/2012** **8** Ext.B1 Will, the defendant gave evidence as DW1. The attesting witness, DW2 gave evidence in tune with the requirements under Section 68 of the Indian Evidence Act. It has also come out in evidence that the other attesting witness was also a Railway employee. It is evident that Late Pachan had signed the Will in the presence of DW2 and the attesting witnesses signed in the presence of Late Pachan, the executant of the Will. The learned counsel for the appellants raised a contention that the execution of the document propounded by the defendant is not established by any credible evidence. It is further contended that the signature found in Ext.B1 Will is not in conformity with the admitted signature of Late Pachan seen in Ext.A3. The 'x' mark found in the 2[nd] page of the Will creates doubt as to the plea of the defendant that it was Pachan who wrote the Will himself and executed the same as pleaded by the defendant. 16. The case of the defendant is that the Will in question (Ext.B1) was executed by Pachan in the presence of other attesting witnesses in the shop run by DW2 and the same had been handed over to the 3[rd] plaintiff, the **RSA NO.1555/2012** **9** mother of the contesting parties and later handed it over to the defendant herein. 17. The learned counsel for the appellants contented that, the burden is on the defendant to establish that Pachan executed the Will and the same had been handed over to the 3[rd] plaintiff, which he failed. _Per contra_ , the learned counsel for the respondent submitted that, the case of the defendant that Late Pachan handed over the Will to the 3[rd] plaintiff remains unchallenged. The defendant has specifically pleaded in the written statement that Late Pachan had entrusted Ext.B1 Will to the 3[rd] plaintiff and after the death of Pachan 3[rd] plaintiff handed over the Will to the defendant. From the side of the plaintiffs a replication denying the pleadings regarding entrustment of the Will to the 3[rd] plaintiff and the subsequent handing over of the same after the death of Pachan to the defendant had been filed and the Trial Court accepted the same. The learned counsel for the defendant brought to the notice of this Court that the 3[rd] plaintiff had not signed the replication. The 3[rd] plaintiff could have resisted the above contentions by denying the claim of the **RSA NO.1555/2012** **10** defendant by joining as a party in the replication. Both the Trial Court as well as the First Appellate Court considered the averments regarding the suspicious circumstances surrounding the execution of Ext.B1 Will. The First Appellate Court re-appreciated the evidence adduced by the parties. The First Appellate Court specifically considered every contentions raised from the side of the appellants regarding the genuineness of the Will. The First Appellate Court has also considered the nature of disposition by which the plaint schedule property was bequeathed to the defendant alone. The First Appellate Court has appreciated all these aspects in Paragraphs 10 and 11 of the judgment, which are reproduced below: _“10. On going through the recitals in Ext.B1 and the evidence on record it could be found that all the aforesaid aspersions assailing the genuineness of the Will are unfounded as held by the learned Munsiff. The recitals in Ext.B1 would certainly reveal the concern of Pachan for his children and wife. He did not want his wife and children to quarrel for his estate after his death. The recitals would even give inference that he hoped to die. As per the Will he wanted his elder son the 1[st] appellant to get job in the railways in the event he dies in service. He wanted the benefits to the dependents and pension from his department to be paid to his wife and daughter who are the appellants 2 and 3. He wanted his youngest child and son Prakashan to have the house and compound he acquired. Further it is stipulated that if he dies only after his retirement his estate and bank balance shall be divided among his_ **RSA NO.1555/2012** **11** _wife and children equally. Pachan committed suicide in the year he was supposed to retire. Admittedly 1[st] appellant got employment in the railways on compassionate ground as the dependent of Pachan. Appellants 2 and 3 could not deny that service benefits and pension were received by them. It cannot be doubted that Prakashan referred as the beneficiary to whom the house and compound is bequeathed is none other than the respondent. Aforesaid facts and the very move to seek partition after almost two decades since the death of Pachan would give room to believe that appellants knew about the Will long back and they had reaped the benefits as stipulated in Ext.B1 Will._ _11. Neither 1[st] appellant the eldest son nor 3[rd] appellant the widow of Pachan had come to give evidence to refute the contentions and evidence tendered by DW1, the propounder of the Will. Evidence of PW1 will make it clear that she had only lame and inconsistent excuses when confronted with specific facts evidencing execution of the Will. It has come in evidence of PW1, even the 1[st] appellant had refused partition when she demanded it years ago. Thus the facts and circumstances brought in evidence would make it clear that the appellants had come with the suit pretending ignorance about Ext.B1 Will with some oblique motives and on afterthoughts.”_ 18. The defendant has proved the due execution of Ext.B1 Will in the touchstone of Sections 67 and 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act. There is nothing on record to show that the execution of the Will is shrouded in suspicion. 19. This Court is unable to find any merits in the contention of the learned counsel for the appellants that the findings of the courts below are perverse. This Court **RSA NO.1555/2012** **12** holds that the Courts below correctly appreciated the facts in this case and recorded the finding that Ext.B1 Will was genuine and that the defendant proved the due execution of Ext.B1 Will and ruled out the suspicious circumstances projected from the side of the appellants surrounding the execution of Will. The questions of law are answered accordingly against the appellants and the Regular Second Appeal stands dismissed. **Sd/K.BABU JUDGE** VPK