RFA No. 211 of 2011 (D) v. Judgment and Decree in OS 313/2008, Principal Sub Court, Irinjalakkuda

RFA.No.211 OF 2011(D) 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 01ST DAY OF AUGUST 2019 / 10TH SRAVANA, 1941** ## **RFA.No.211 OF 2011(D)** **AGAINST THE JUDGMENT AND DECREE IN OS 313/2008 OF PRINCIPAL SUB COURT,IRINJALAKUDA** ## **APPELLANTS/DEFENDANTS 1 AND 3** - **1 NANDANAN, AGED 50 YEARS, S/O.KUNDOLI RAMAN, KODASSERY VILLAGE, MUKUNDAPURAM TALUK.** - **2 JALAJA, AGED 43 YEARS W/O.KUNDOLI NANDANAN, KODASSERY VILLAGE,, MUKUNDAPURAM TALUK.** **BY ADVS. SRI.K.P.DANDAPANI (SR.) SRI.MILLU DANDAPANI** ## **RESPONDENTS/PLAINTIFFS AND 2ND DEFENDANT** - **1 KOUSALYA W/O.PERUNTHURUTHI NARAYANAN AND D/O. KUNDOLI RAMAN, KODASSERY VILLAGE, MUKUNDAPURAM TALUK-680 725.** - **2 RAGINI, AGED 45 YEARS W/O.NADUMURI UNNIKRISHNAN AND SISTER OF IST PLAINTIFF, KUNDOLI HOUSE, KODASSERY VILLAGE, MUKUNDAPURAM TALUK-680 725.** - **3 SAVITHRI, AGED 42 YEARS W/O.CHAKKAMADATHIL SHANAVAS AND SISTER OF IST AND 2ND PLAINTIFFS, KUNDOLI HOUSE, KODASSERY VILLAGE, MUKUNDAPURAM TALUK-680 725.** - **4 THANKA, AGED 70 YEAR - DIED W/O.LATE KUNDOLI RAMAN, KODASSERY VILLAGE, MUKUNDAPURAM TALUK-680 725.** ## **R1 BY ADV. SRI.T.N.MANOJ** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07-03-2019, THE COURT ON 01-08-2019 DELIVERED THE FOLLOWING:** RFA.No.211 OF 2011(D) 2 **It is recorded vide order dated 15/01/2020 in I.A.No.1/2020 that R4 died during the pendency of the appeal and the 1[st] Appellant and Respondents 1 to 3, who are already in the party array, are the legal heirs of the deceased R4.** **Sd/-** **Assistant Registrar** RFA.No.211 OF 2011(D) 3 ## JUDGMENT The defendants 1 and 3 in O.S.No.313/2008 on the file of the Principal Subordinate Court,Irinjalakkuda have come up with this appeal aggrieved by the judgment and decree dated 30.10.2010. 2. For the sake of convenience the parties are referred to as in the suit only viz, plaintiffs and defendants. 3. The facts of the present case in nutshell are as follows: The plaintiffs and the first defendant are the children of late Kundoli Raman and Thanka, the second defendant. The plaint schedule properties belonged to Raman and on his death the properties devolved upon his legal heirs who are the plaintiffs and the defendants 1 and 2. Hence, the suit for partition of the entire properties among the legal heirs and to allot 3/5 shares to the plaintiffs. The contention of the defendants 1 and 3 that a will deed was executed by late Raman on 7.4.2008 is not correct and the document is not a genuine document as he was not having a sound disposing state of mind to execute a will deed and hence, the properties are liable to be partitioned ignoring the will deed. 4. The first defendant filed written statement refuting the plaint RFA.No.211 OF 2011(D) 4 allegations, inter alia contended that Raman was residing along with him and his family and had bequeathed his properties by executing a will deed on 7.4.2008. He was having sound disposing state of mind and thus, he executed his last will deed and his death was on 26.4.2008. Raman, his father had also given the plaintiffs, his daughters in marriage and had set apart an extent of 50 cents of land in their favour and the rest of the property alone was bequeathed to him with life interest of the second defendant. Hence, the claim for partition was resisted by the first defendant on the strength of the will deed. 5. Before the court below the plaintiffs in order to prove their case have examined the first plaintiff as PW1 and PW2 another witness. Apart from the oral evidence Exts.A1 to A4 were marked. Defendants 1 and 3 on the other hand examined DWs1 to 5 and marked Exts.B1 and B2. Ext.X1 series were also marked. The court on appreciation of the evidence decreed the suit for partition excluding item No.2 property. Aggrieved by the said judgment and decree this appeal has been preferred. 6. Heard the learned counsel for the appellants and the learned counsel for the respondents. 7. The second defendant who is the mother of the plaintiffs and the first defendant remained exparte. The third defendant also did not RFA.No.211 OF 2011(D) 5 file any written statement challenging the plaint allegations. 8. Admittedly, the plaintiffs and the first defendant are the children of late Kundoli Raman and the second defendant. Kundoli Raman expired on 26.4.2008. Admittedly, the plaint schedule properties originally belonged to him. Three items of properties are scheduled in the plaint. The plaintiffs have sought for partition of all the three items of properties and claimed 3/5 shares over the entire properties. The court below has excluded item No.2 property as it stands in the name of the third defendant the wife of the first defendant as per Ext.B2 document. According to the first defendant late Raman had executed Ext.B2 in favour of the third defendant after receiving valid sale consideration and hence, that item is not liable to be partitioned among the parties. At the outset it is to be noted that there is no cross appeal and the plaintiffs have not challenged the said finding of the court below by filing a separate appeal. So the finding of the court below that plaint B schedule property is not liable to partitioned among the plaintiffs and the defendants is not challenged in this appeal. So the only question to be looked into is whether item Nos.1 and 3 are liable to be partitioned among the parties. 9. Ext.B1 is the will deed in favour of the first defendant executed by Raman, as contended by the first defendant. Since the genuineness of Ext.B1 is under challenge, the question to be looked RFA.No.211 OF 2011(D) 6 into is whether Ext.B1 is a genuine document. At the outset it is to be noted that the recitals in the will deed would reveal that out of the entire property 50 cents was set apart to the plaintiffs. It is pertinent to note that the plaintiffs have vehemently contended that Raman, their father was completely laid up due to cancer and he was undergoing treatment for the same and while undergoing treatment he expired on 26.4.2008 and in fact he was not having sound mind of disposition of the property and hence, the will deed is not a valid one. 10. The validity of the will deed on 7.4.2008 is assailed by the plaintiffs mainly on the basis of Ext.X1 series. Ext.X1 series are the medical records of Aswini hospital, Thrissur. Relying on Ext.X1 the plaintiffs would argue that Raman was not having sound and disposing state of mind and there was lack of testamentary capacity due to his illness and therefore the will deed is an invalid one surrounded by suspicious circumstances. Of course a perusal of Ext.X1 series would show that Raman was aged 78 years at the time of his death on 26.4.2008. He was admitted in Aswini Hospital, Thrissur from 21.2.2008 to 23.2.2008 and from 17.4.2008 to 23.4.2008. At the outset it is to be noted that though Ext.X1 series were produced to establish the case of the plaintiffs that their father Raman was ailing from cancer and he was not having sound disposing state of mind so as to execute a free will deed on 4.6.2008, failed to examine any of RFA.No.211 OF 2011(D) 7 the doctors who treated him to substantiate their case. But on the other hand, PW2 who is the son of Raman's brother was examined. He deposed before the court that Raman had undergone treatment in Aswantha Hospital, Chalakudy and CCMK Hospital, Chalakudy and he was completely laid up and he was not having sound disposing state of mind due to his illness so as to execute a document and as he used to visit him at the hospital and at his residence, he is convinced with the facts and the physical conditions of Raman. But it is pertinent to note that in cross examination he had admitted before the court that the first defendant had filed cases against him in connection with the functioning of a quarry and the cases are still pending. Though he attempted to depose before the court that he was not having enmity towards the first defendant, it has come out in evidence that the first defendant had filed cases against him and the cases are still pending. He had also admitted that he was not in the habit of visiting Raman quite often and his last visit was one month back to his death. So even though he denied of having no enmity towards DW1, the first defendant it has come out in evidence that cases are pending between them and he is not a frequent visitor of the residence of the first defendant where Raman was residing. So it is not safe to rely on the deposition of PW2 alone especially when the plaintiffs failed to adduce evidence in support of Ext.X1 medical records. It is also to be noted RFA.No.211 OF 2011(D) 8 that Ext.X1 series would show that Raman was admitted in the hospital but it was for a short duration. The medical records will not reveal that he was not having a sound disposing state of mind though he was in the hospital for a few days. 11. As mentioned earlier the execution of the will deed was on 7.4.2008. Admittedly, Raman expired on 26.4.2008. The crucial question to be looked into is whether the execution of the will deed was properly proved by the prepounder. It is well settled that the prepounder has to prove that the will satisfy the requirements of Section 63 of the Indian Succession Act, 1925 and as mandated in Section 68 of the Evidence Act. Section 63 (c) of the Indian Succession Act reads as follows: “63(c) The will shall be attested by 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 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.” ## Section 68 of the Evidence Act reads as follows: ## “ **68. Proof of execution of document required by law to be** **attested** RFA.No.211 OF 2011(D) 9 If a document is a required by law to be attested, it shall not be used as evidence until 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: [PROVIDED that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] 12. The Supreme Court has laid down the requirements of proof will in various decisions and it is a well settled position of law that the propounder is bound to prove that will was duly executed and properly proved. In **H.Venkatachala Iyengar v. B.N.Thimmajamma (AIR 1959 SC 443)** it was held that: “18. What is the true legal position in the matter of proof of wills? It is well known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party prepounding a will or otherwise making a claim under a will is no doubt seeking prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, 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, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of RFA.No.211 OF 2011(D) 10 experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression “a person of sound mind” in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the prepounder is proved to be the last will of the testator has to be decided in the light of these provisions.***************” ## 13. In **Beni Chend (since dead) now by L.Rs. v. Smt. Kamla Kunwar and others (AIR 1977 SC 63)** it was held that **“** By attestation is meant the signing of a document to signify that the attestor is a witness to the execution of the document; and by Section 63(c) of the Succession Act, an attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal RFA.No.211 OF 2011(D) 11 acknowledgment from the executant as regards the execution of the document. Nigam's evidence shows that he and the other two witnesses saw the testatrix putting her thumb-mark on the will by way of execution and that they all signed the will in token of attestation in the presence of the testatrix, after she had affixed her thumb-mark on the will.” ## In **Gopal Sawaroop v. Krishna Murari Mangal and others [(2010) 14 SCC 266]** it was held that: “17. A careful analysis of the provisions of Section 63 would show that the proof of execution of a will would require the following aspects to be proved: (1) That the testator has signed or affixed his mark to the will or the will has been signed by some other person in the presence and under the direction of the testator. (2) The signature or mark of the testator or the signature of the persons signing for him is so placed has to appear that the same was intended thereby to give effect to the writing as a will. (3) That the will has been attested by two or more witnesses each one of whom has signed or affixed his mark to the will or has been seen by some other person signing the will in the presence and by the direction of the testator or has received from the testator a personal acknowledgment of the signature or mark or the signature of each other person. (4) That each of the witnesses has signed the will in the presence of the testator.” 14. Coming to the issue at hand, ie; whether the first defendant had proved the execution Ext.B1 will deed as mandated by the RFA.No.211 OF 2011(D) 12 provisions of law is the decisive question to be answered. The first defendant as DW1 has deposed before the court that he was residing along with his family and parents in the family house itself and he was looking after his parents and while so, his father expired on 26.4.2008. According to him the will deed was executed before two attestors namely DW4 Velayudhan and DW5 Suresh Babu, by his father out of free will and he was having a sound disposing state of mind and testamentary capacity to execute a will deed. 15. DW4 Velayudhan has deposed before the court that late Raman, the father of the first defendant was his close friend and he used to visit his residence quite often. One day in the month of April 2008 Raman made a phone call and requested him to be present at his house so as to execute a will deed and it was also told by him that a scribe and another person to measure out the property were also to be arranged by him and as requested by Raman he went to his residence. He has further deposed that Raman had executed the will deed in his presence and he had witnessed Raman affixing his signature in the document. According to him the will deed was written by one Viswambaran (DW3) the scribe and he had read over the contents of the same to Raman and others and thereafter Raman affixed his signature and he had also affixed his signature as a witness. According to him he had seen Raman affixing his signature RFA.No.211 OF 2011(D) 13 in the will deed and Suresh Babu (DW5) who was present at the residence of Raman also affixed his signature in the document and Raman had witnessed both of them affixing their signatures in the document. He testified that Raman was having a sound disposing state of mind at the time of execution of the document and he himself has narrated the contents to the scribe so as to execute the document. 16. DW5 is Suresh Babu and he had also deposed that as requested by Raman with whom he was having close acquaintance, went to his residence in the month of August 2008 as requested by him. According to him Raman had told him that he arranged a person to measure out his property and a scribe but as they were not familiar with way leading to his house, to bring them to his house and thus he went to his house along with them and as per the direction of Raman the property was measured out and 50 cents of land was set apart and thereafter executed the will deed. According to him the contents for execution of the will deed was stated to the scribe by Raman and after execution of the document it was read over to him and Raman affixed his signature and he had witnessed the same and then Velayudan affixed his signature in the will deed and then he too affixed his signature as a witness in the presence of Raman. So the two attesting witnesses are persons having personal acquaintance with Raman and both of them testified that Raman, the testator had affixed his RFA.No.211 OF 2011(D) 14 signature in the will deed in their presence and Raman was not incapacitated in any manner and the attesters attested in the presence of Raman. They have not given evidence to the effect that Raman had lack of testamentary capacity due to any ill health at the time of execution of the will deed. In fact, both the witnesses have categorically deposed that they had affixed their signatures in the will deed in the presence of Raman and Raman had also affixed his signature in their presence. So in short the will deed under challenge is attested by two witnesses as mandated by law. It is significant to note that nothing is available on record to show that they had any special interest so as to depose falsehood before a Court merely to help the beneficiaries of the will. 17. DW3 is the scribe of the document. He testified that he is a scribe by profession and he had close acquaintance with Raman for several years and Raman used to visit his office quite often. According to him on 7.4.2008 he went to the residence of Raman as requested by him and measurement of the property was carried out and executed the document as per the direction of Raman, the testator. He had also deposed that the second defendant his wife had life interest over the property bequeathed by him by B1. So according to him also the execution of Ext.B1 will deed was purely as per the direction of Raman and he was having sound disposing state of mind and was not RFA.No.211 OF 2011(D) 15 incapacitated in any manner. It is significant to note that the plaintiffs could not substantiate the plea raised by them that Raman was completely laid up and had no testamentary capacity to execute the will deed. On the other hand, the attesting witnesses and the scribe had adduced reliable evidence to the effect that Raman was having sound disposing state of mind and capable of understanding the nature and effects of his action and with his free will and desire his last will deed was executed by him. The mere fact that Raman was hospitalised for a few days is not at all sufficient to inter that he was not having a sound mind so as to render any suspicion regarding the validity of the will. So by the evidence of Dws.3, 4 and 5 the first defendant was able to establish the competence of the testator to make the will at the time of its execution. In short, I find that there is nothing to constitute suspicious circumstance to doubt the genuineness of the will deed executed by him in favour of the first defendant. It is also to noted that by executing Ext.B1 Raman has not excluded his daughters, the plaintiffs. But he had set apart 50 cents of land together for the plaintiffs. On a meticulous evaluation of the entire evidence adduced, I find that there is no evidence so as to infer that the will deed was not properly executed and it was as a result of any fraud committed by the first defendant so as to snatch away the property of late Raman to the exclusion of his sisters . RFA.No.211 OF 2011(D) 16 As referred above, the plaintiffs have not challenged the finding of the court below excluding item No.2 covered by Ext.A2 . In the light of the discussions made above, and considering the legal position, this court finds that the genuineness of the will stands proved as required in evidence by adducing satisfactory evidence. Therefore, the judgment and decree under challenge are liable to be interfered with and I find that plaint schedule properties 1 and 3 are also not liable to be partitioned among the plaintiffs and the defendants. Resultantly, the suit is liable to be dismissed and I do so. Accordingly, the appeal is allowed setting aside the impugned judgment and decree under challenge. Considering the relationship of the parties, they are directed to bear their respective costs. SHIRCY V JUDGE smm ## 1.08.2019 RFA.No.211 OF 2011(D) 17 ## **Sd/-** ## **SHIRCY V.** **JUDGE**