Raveendran Nair v. Raman Nair and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY,THE 29TH DAY OF JANUARY 2019 / 9TH MAGHA, 1940** **SA.No. 717 of 2002 (B)** **AGAINST THE DECREE AND JUDGMENT DATED 09.04.2002 IN AS NO.273/1995 of ADDITIONAL DISTRICT COURT,KOTTAYAM** **AGAINST THE DECREE AND JUDGMENT DATED 29/08/1995 IN OS 22/1991 of MUNSIFF'S COURT, KANJIRAPPALLY** ## **APPELLANT/APPELLANT/PLAINTIFF:** ## **RAVEENDRAN NAIR** **SON OF NARAYANAN NAIR, ATTUMKAL VADAKKEMURIYIL,KIZHAKKUMBHAGOM KARA, CHIRAKKADAVU VILLAGE** **BY ADVS. SRI.P.R.VENKATESH SRI.P.R.RAJA** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** **1 RAMAN NAIR SON OF NARAYANAN NAIR,ATTUMKAL VADAKKEMURIYIL, KIZHAKKUMBHAGOM KARA, CHIRAKKADAVU VILLAGE** **(DIED, LRs RECORDED)** **2 SANTHOSH KUMARI D/O. RAMAN NAIR, DO.DO.** - **3 PADMAKUMARI DO.DO.DO.** - **4 UNNIKRISHNAN NAIR, DO.DO.DO.** - **5 SASIKUMAR, S/O.DO.DO.** - **6 PONNAMMA, W/O RAMAN NAIR, DO.DO.DO. (R2 TO R6 ARE RECORDED AS LRs OF DECEASED R1 AS PER** S.A.No.717/2002 2 **ORDER DATED 16.01.2013 IN IA.45/2013.) 7 MADHUSUDHANAN NAIR, S/O. GOPALAN NAIR DO.DO.DO. 8 AJAYAKUMAR, DO.DO.DO. 9 VASUMATHY AMMA, W/O. GOPALAN NAIR DO.DO.DO. BY ADVS. SRI.LIJI.J.VADAKEDOM FOR R2 TO R6 SRI.SERGI JOSEPH THOMAS FOR R7 TO R9 SRI.T.A.VIJAYAN FOR R2 TO R6** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** S.A.No.717/2002 3 ## **CR** ## **JUDGMENT** The appellant, the defeated plaintiff in O.S.No.22/1991 of the Munsiff's Court, Kanjirapally, and in A.S.No.273/1995 of Addl. District Court, Kottayam, came up with this appeal. 2. The dispute centered around execution of three Wills Exts.A1, A2 and A4 left out by the father of plaintiff. In Ext.A1, the plaintiff is the sole legatee regarding the plaint schedule property. In Ext.A2 there is some modification. In Exhibit A4 Will, an entirely different deposition was made by the testator, hence under challenge. The plaintiff sought declaration that Exhibit A4 Will is invalid, and for declaring his title over the plaint schedule property based on Exhibit A1 Will. A permanent prohibitory injunction was also sought. 3. Both the Trial Court and the First Appellate Court rejected the contention raised by the plaintiff, but upheld the contention of first defendant and found that Exhibit A4 Will is genuine and that it is the last testament of the deceased. 4. There are two attesting witnesses to Exhibit A4 S.A.No.717/2002 4 Will – one Raman Nair and one Raghavan Nair. Raman Nair is none else, the first defendant. That Will was executed in favour of the children of the first defendant by giving major portion of property covered by the Will to their share and only a minor portion was given to other legatees. 5. The questions came up for consideration are: (1) What would the legal effect of an unprivileged Will attested by the legatees alone left out by a Hindu ? Can it be said that there is sufficient compliance of requirement as mandated under Section 63 of Indian Succession Act regarding the execution of an unprivileged Will ? (2) What would be the legal effect of Section 67 of the Indian Succession Act on an unprivileged Will left out by a Hindu ? (3) Whether the examination of a legatee under a Will who is an attesting witness to the Will or Codicil would be a sufficient compliance of the requirement as mandated under Section 68 of Indian Evidence Act ? (4) Whether the Court below is justified in holding that Exhibit A4 is a genuine one and the last testament of the deceased ? 6. The learned counsel for the respondents relied on a decision rendered by a Single Bench of this Court in **Lisamma v. Saramma and Others** [2017 (3) KHC 27] in support of his argument that Section 67 of the Indian Succession S.A.No.717/2002 5 Act, 1925, has no application on an unprivileged Will or Codicil left out by a Hindu. **The question of devolution of successive interest over the asset of deceased testator and the bequest under a testament would come into question only after the death of testator and not before, and that is why the legislature has in its wisdom, incorporated certain mandate to be complied with in the matter of execution and proof of documents showing testamentary succession - Will or Codicil, under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act and there cannot be any dilution of requirement as mandated under both the abovesaid provisions** . An unprivileged Will other than that of a Hindu is governed by Section 67 of the Indian Succession Act which makes the bequest under the Will to any attesting witness or his wife or husband or any person claiming under them as void, though the Will deemed to be sufficiently attested and valid in so far as the bequest to other persons are concerned. But it has not been made applicable to an unprivileged Will of a Hindu and there is no prohibition for any legatee to stand as an attesting witness. **Then comes the question what would be the validity of an unprivileged Will of a Hindu testator attested only by the legatees in whose favour the Will was executed and** S.A.No.717/2002 6 **whether it would be a sufficient compliance of mandate under Section 63 of the Indian Succession Act. Though there is no prohibition in the Act to stand as an attesting witness by a legatee, the mandate both under Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act would convey the meaning that what is required is the attestation by two or more witnesses, since the question of genuineness of execution of a Will or Codicil would arise only after the death of testator. The attesting witness must have and should have the necessary '** _**animus testandi**_ **' or intention to attest the Will or Codicil. The word 'attesting' stands for more than something than mere signing of a document as a witness. Attestation means signing of a document with the intent and purpose to testify the signature of executant than mere witnessing the affixture of signature by the executant or its due execution. Necessarily, the attesting witness must qualify the necessary competence and the quality of an independent** **witness.** The word 'attested' is defined under Section 3 of the Transfer of Property Act which is exactly pari materia with that of the third requirement as enumerated in clause(c)of Section 63 of Indian Succession Act which is extracted below for reference : **==> picture [312 x 11] intentionally omitted <==** S.A.No.717/2002 7 **instrument** , means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the **executant** sign or affix his mark to the **instrument** , or has seen some other person sign the **instrument** in the presence and by the direction of the **executant** , or has received from the **executant** a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the **instrument** in the presence of the **executant** ; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary; (emphasis supplied) 7. In clause ( c) of Section 63 of Indian Succession Act, the very same requirement is mandated as follows :- **==> picture [284 x 12] intentionally omitted <==** two or more witnesses, each of whom has seen the **testator** sign or affix his mark to the **Will** or has seen some other person sign the **Will** , in the presence S.A.No.717/2002 8 and by the direction of the testator, or has received from the **testator** a personal acknowledgment of his signature or mark, or the signature of such other person;and each of the witnesses shall sign the **Will** in the presence of the **testator** , but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.” (emphasis supplied) 8. Besides the said requirement of attestation, clauses (a) and (b) to Section 63 incorporated mandating additional requirement in the matter of execution of an unprivileged Will or Codicil, apart from the documents required by law to be attested, which are extracted below for reference : **==> picture [276 x 12] intentionally omitted <==** shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. **==> picture [312 x 41] intentionally omitted <==** person signing for him, **shall be so** S.A.No.717/2002 9 **placed that it shall appear that it was intended thereby to give effect to the writing as a Will** .” **==> picture [157 x 12] intentionally omitted <==** 9. All these three requirements by its nature would show the mandate to be complied with in the execution of a Will or Codicil apart from a document required by law to be attested. **A mere attestation as in the case of a document required by law to be attested is not sufficient in the matter of execution of a Will or Codicil and it should satisfy the requirements as enumerated under clauses (a) and (b) to Section 63 of the Indian Succession Act, besides** **the requirement as enumerated in clause (c). Different treatments were given to a Will and Codicil apart from other document required by law to be attested by insisting compliance under Clause (a) to (c) to Section 63 of Indian Succession Act. Apart from the above said requirement regarding execution of a Will or Codicil, in the matter of proof also, a different treatment was given apart from a document required by law to be attested under Section 68 of** **Indian Evidence Act. The reason is quite obvious that the question of genuineness of signature of testator and due execution of a Will or Codicil would arise only after his or her death. The Clause (b) to Section 63 mandates that** S.A.No.717/2002 10 **the signature or mark of the testator or the person who signed on behalf of the testator, “shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will” which stands for affixture of signature by the testator or person under his instruction, in his presence, to give effect to the document with full knowledge at his free volition, free from any vitiating circumstance. It is by virtue of clause (b) to Section 63 of the Act, a burden cast upon the proponder to explain and clear out all suspicious circumstance attached to the execution of the Will or Codicil. But no such requirement is mandated in the matter of a document required by law to be attested, such as gift, settlement, etc. When legatee is permitted to stand as an attesting witness that itself amounts to a suspicious circumstance within the meaning of clause (b) to Section 63 of Indian Succession Act when read along with the other two mandate - clauses (a) and (c) to Section 63 of the Act. Needless to say that a Will or Codicil attested by legatees alone or the person interested with the legatees who holds a fiduciary relationship with the legatee/legatees would itself amounts to suspicious circumstance attached to its execution, absence of an independent attesting witness to the document is so fatal to the bequest under the document. It would destruct the** S.A.No.717/2002 11 **legislative intention demanding compliance of mandate incorporated both under Section 68 of Indian Evidence Act and Section 63 of Indian Succession Act and their evidence or attestation would stand as self serving, though there is no provision debarring attestation by a legatee as far as an unprivileged Will of a Hindu is concerned. Atleast one of the attesting witness should be an independent witness and his examination cannot be avoided if he is capable of giving evidence and amenable to the process of the court for proving the Will or Codicil in accordance with the mandate under Section 68 of the Evidence Act. In short, a legatee under the Will or a person who is interested in the bequest cannot be an independent witness for the purpose of attestation to a last testament either as a Will or Codicil and hence mere examination of a legatee who stand as one of the attesting witness would not be a sufficient compliance of mandate under Section 68 of the Evidence Act.** In the instant case, the only witness examined to prove the due execution of Ext.A4 is the first defendant and the Will was executed in favour of his children by giving major portion of the property and hence he cannot be an independent witness for the purpose of mandate under Section 68 of Indian Evidence Act in proof of execution of Ext.A4 Will. 10. At this juncture, the learned counsel for the S.A.No.717/2002 12 respondents 1 to 6 pressed for a remand of the matter to the Trial Court for the purpose of enabling them to examine the other attesting witnesses, and if not available to prove the same as mandated under the provisions of the Evidence Act. The learned counsel for the appellant also pressed for a remand of the matter so as to amend the reliefs sought in the plaint. The decree and judgment of both the Trial Court and the First Appellate court are hence set aside. The appeal is allowed in part. The decree and judgment of both the Trial Court and the First Appellate Court are set aside. The parties are permitted to amend their respective pleadings and reliefs sought in the plaint. They may be permitted to adduce additional evidence and to dispose of the suit afresh by the Trial Court. The parties are directed to appear before the Trial Court on 20.02.2019. No order as to cost of second appeal. ## **Sd/-** ## **P.SOMARAJAN** sv ## **JUDGE**