Rugmini Sasidharan v. Rajendran and others

**“C.R”** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 07TH DAY OF JUNE 2019 / 17TH JYAISHTA, 1941** **RFA.No.523 of 2009** **AGAINST THE DECREE AND JUDGMENT IN OS 238/1991 of ADDITIONAL SUB COURT,KOLLAM DATED 13-03-2009** ## **APPELLANT/PLAINTIFF:** **RUGMINI SASIDHARAN,W/O. SASIDHARAN RESIDING AT NALINAM, ASRAMAM, KOLLAM.** **BY ADVS. SRI.K.P.SUJESH KUMAR SMT.SANDHYA RADHAKRISHNAN SRI.K.N.SASIDHARAN NAIR SRI.S.SREEKUMAR (SR.)** ## **RESPONDENTS/DEFENDANTS 2 TO 6** **1 RAJENDRAN, S/O.LATE GOPALAN, RESIDING AT GOPINIVAS, NO.43/C,INDUSTRIAL SUBARB 2ND STAGE, MYSORE, KARANTAKA.** - **2 PADMENDRAN, S/O.LATE GOPALAN, RESIDING AT GOPINIVAS, NO.43/C,INDUSTRIAL SUBARB 2ND STAGE, MYSORE, KARNATAKA.** - **3 ROHINIKUTTY @ LEELA, D/O.LATE GOPALAN RESIDING AT NALINAM, ASRAMAM, KOLLAM, FROM SAKTHIKULANGARA.** **4 PREMALATHA @ PREMA, D/O.LATE GOPALAN RESIDING AT SANTHI NILAY, NAVANAGAR, PATLA HOUSE, HOSABATTU SURAKA, MANGALORE.** **5 USHAKIRAN @ USHA, D/O,.LATE GOPALAN RESIDING AT CHITTUTHARAYIL HOUSE, PADE NORTH, KARUNAGAPPALLY P.O.,KOLLAM.** **BY ADVS. SMT.DHANYA P.ASHOKAN SRI.V.N.MOHAN RAJ SMT.K.G. BINDU SMT.RESHMA ABDUL RASHEED SMT.T.S.MAYA (THIYADIL)-R4 SRI.K.P.UNNIKRISHNAN (ELOOR) SRI.M.R.VENUGOPAL SRI.P.GOPAL SRI.P.G.PARAMESWARA PANICKER (SR.)-R1 AND R2 SRI.SHABU SREEDHARAN SRI.S.VIJAYAN SMT.D.P RENU-R5 -RELINQUISHED** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14.01.2019, ALONG WITH C.O.No.61/2010 and RFA.552/2010, THE COURT ON 07.06.2019 DELIVERED THE FOLLOWING:** RSA No.523/2009 and 552/2010 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 07TH DAY OF JUNE 2019 / 17TH JYAISHTA, 1941 CROSS OBJECTION NO.61 OF 2010 IN RFA.No.523 of 2009** **AGAINST THE DECREE AND JUDGMENT IN OS 238/1991 of ADDITIONAL SUB COURT,KOLLAM DATED 13-03-2009** ## **APPELLANT/PLAINTIFF:** **RUGMINI SASIDHARAN,W/O. SASIDHARAN RESIDING AT NALINAM, ASRAMAM, KOLLAM.** **BY ADVS. SRI.K.P.SUJESH KUMAR SMT.SANDHYA RADHAKRISHNAN SRI.K.N.SASIDHARAN NAIR SRI.S.SREEKUMAR (SR.)** **RESPONDENTS/DEFENDANTS 2 TO 6 1. RAJENDRAN, S/O.LATE GOPALAN, RESIDING AT GOPINIVAS, NO.43/C,INDUSTRIAL SUBARB 2ND STAGE, MYSORE, KARANTAKA.** **2. PADMENDRAN, S/O.LATE GOPALAN, RESIDING AT GOPINIVAS, NO.43/C,INDUSTRIAL SUBARB 2ND STAGE, MYSORE, KARNATAKA.** **3. ROHINIKUTTY @ LEELA, D/O.LATE GOPALAN RESIDING AT NALINAM, ASRAMAM, KOLLAM, FROM SAKTHIKULANGARA.** **4. PREMALATHA @ PREMA, D/O.LATE GOPALAN** **RESIDING AT SANTHI NILAY, NAVANAGAR, PATLA HOUSE, HOSABATTU SURAKA, MANGALORE.** **5. USHAKIRAN @ USHA, D/O,.LATE GOPALAN RESIDING AT CHITTUTHARAYIL HOUSE, PADE NORTH, KARUNAGAPPALLY P.O.,KOLLAM.** **BY ADVS. SMT.DHANYA P.ASHOKAN SRI.V.N.MOHAN RAJ SMT.K.G. BINDU SMT.RESHMA ABDUL RASHEED SMT.T.S.MAYA (THIYADIL)-R4 SRI.K.P.UNNIKRISHNAN (ELOOR) SRI.M.R.VENUGOPAL SRI.P.GOPAL SRI.P.G.PARAMESWARA PANICKER (SR.)-R1 AND R2 SRI.SHABU SREEDHARAN SRI.S.VIJAYAN SMT.D.P RENU-R5 -RELINQUISHED** **THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 14.01.2019, ALONG WITH RFA 523/ 2009 and RFA.552/2010, THE COURT ON 07.06.2019 DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 07TH DAY OF JUNE 2019 / 17TH JYAISHTA, 1941 RFA.No.552 of 2010** **AGAINST THE DECREE AND JUDGMENT IN OS 238/1991 of ADDITIONAL SUB COURT,KOLLAM DATED 13.3.2009** ## **APPELLANT/DEFENDANTS 2 AND 3:** **1 RAJENDRAN, S/O.LATE GOPALAN, RESIDING AT 'GOPI NIVAS',NO.43/C INDUSTRIAL SUBARB 2ND STAGE, MYSORE,KARNATAKA. 2 PADMENDRAN, S/O.LATE GOPALAN RESIDING AT 'GOPI NIVAS',N.43/C INDUSTRIAL SUBARB 2ND STAGE, MYSORE,KARNATAKA.** **BY ADV. SRI.P.GOPAL SRI.P.G.PARAMESWARA PANICKER (Sr.)** ## **RESPONDENTS/PLAINTIFF AND DEFENDANTS 1 & 4 TO 6:** **1 RUGMINI SASIDHARAN, W/O. SASIDHARAN. RESIDING AT 'NALINAM',ASRAMAM,KOLLAM.** - **2 A.NALINI, W/O.LATE GOPALAN, RESIDING AT GOPI NIVAS,NO.43/C INDUSTRIAL SUBARB,2ND STAGE, MYSORE,KARNATAKA. - DIED** **3 ROHINIKUTTY @ LEELA,D/O.LATE.GOPALAN, RESIDING AT 'NALINAM',ASRAMAM, KOLLAM FROM, SAKTHIKULANGARA.** - **4 PREMALATHA @ PREMA, D/O.LATE GOPALAN RESIDING AT 'SANTHI NILAYA',NAVANAGAR,PATLA HOUSE,, HOSABATTU SURAKA,MANGALORE.** RSA No.523/2009 and 552/2010 4 **5** **USHAKIRAN @ USHA,D/O.LATE.GOPALAN RESIDING AT CHITTUTHARAYIL HOUSE,PADE NORTH,, KARUNAGAPPALLY.P.O,KOLLAM.** **IT IS RECORDED THAT R2 DIED AND THE LEGAL HEIRS OF THE DECEASED R2 ARE ALREADY ON THE PARTY ARRAY AS APPELLANTS AND RESPONDENTS 1 AND 3 TO 5 AS PER THE ORDER DATED 30.11.2015 IN MEMO BEARING NO.6096/15 DATED 18.11.2015** **BY ADVS. SRI.LEO GEORGE-R1** **SMT.RESHMA ABDUL RASHEED-R3 SRI.M.R.VENUGOPAL-R4** **SRI.SHABU SREEDHARAN-R3 SRI.TONY THOMAS (INCHIPARAMBIL)-R3 SRI.UDAYAKUMAR SREEDHARAN-R3 SRI.S.SREEKUMAR (Sr) -R1** SMT. K.G.BINDU -R4 SMT.T.S.MAYA -R4 **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14.1.2019, ALONG WITH RFA.523/2009, THE COURT ON 7.6.2019 DELIVERED THE FOLLOWING:** RSA No.523/2009 and 552/2010 5 ## **JUDGMENT** ## **[RFA 523/2009 & RFA.552/2010]** These two appeals arise out of the Judgment and decree in O.S.No.238/91 on the file of the Additional Sub Court, Kollam. RFA No.523/2009 is at the instance of the plaintiff. RFA No.552/2010 is preferred by the defendants 2 and 3. The parties are referred to as per their status in the original suit. 2. Briefly stated the facts leading to filing of the appeals are as follows: The plaintiff and the defendants 2 to 6 are the children of late Sri.Gopalan and Smt.Nalini, the first defendant. (Smt.Nalini expired during the pendency of the suit). The defendants 2 and 3 are the sons of this couple and the plaintiff and the defendants 4 to 6 are their daughters. The plaint schedule properties belonged to Sri.Gopalan. He died intestate on 29.9.1989 and thereby the properties devolved upon the plaintiff and the defendants. Thus the plaintiff is entitled to 1/7[th] share over the properties. A schedule property is 69.750 cents of land with a RSA No.523/2009 and 552/2010 6 residential building in Asramam north at Kollam. The building was constructed by the plaintiff as permitted by her father. B schedule is a land with so many buildings, a brick factory, machinery etc. at Mysore. C to F schedule properties are the movables. The plaintiff is holding joint possession of the plaint schedule properties as inherited from late Gopalan. The plaintiff is seeking equitable relief with respect of the residential building and site and to allot 1/7[th] share at the time of the final decree. The defendants 1 and 2 are residing in the building in the B schedule property and the movables are enjoyed by them and hence C and F schedule properties are liable to be put in auction and the plaintiff is entitled to get 1/7[th] share of the sale proceeds. D schedule lorry was sold for a sum of Rs.3 lakhs and out of the same, Rs.60,000/- was due to Catholic Syrian Bank as the financier of the lorry. The second defendant had settled the account and had appropriated the balance amount. So also, the E schedule machines were sold by him for a sum of Rs.2,35,000/and out of the same Rs 1.3 lakhs due to the bank was settled and the balance was taken by him. Since the plaintiff is entitled to get share over the plaint schedule properties she approached the RSA No.523/2009 and 552/2010 7 defendants but they were not amenable for partition even after the mediation talk. They filed two caveat petitions, in the court of Civil Judge at Mysore and now it is learnt that they are resisting the claim raised by the plaintiff on the strength of a will deed alleged to have been executed by Sri. Gopalan. The alleged will was fraudulently created by defendants 1 and 2 as Gopalan was not having the physical or mental capacity and sound disposing state of mind so as to execute the same on 1.9.1989. Sri.Gopalan studied only upto 3[rd] standard in Malayalam Medium, but the will is seen drafted in English language. In fact the defendants 1 and 2 are trying to evict the plaintiff forcibly from A schedule property. Hence, the suit for partition of the plaint schedule properties as well to allot her 1/7[th] share and for settlement of accounts with respect to the sale proceeds of D to F schedule properties. 3. The first defendant resisted the suit raising various contentions. The allegation that her husband Sri. Gopalan died intestate on 29.9.1989 is absolutely false. In fact, he executed a will deed on 1.9.1989 bequeathing his rights over the properties and assets in her favour. The allegation that the plaintiff is RSA No.523/2009 and 552/2010 8 entitled to get 1/7[th] share over the entire properties is not correct. Sri Gopalan had gifted 1 acre 4.75 cents of land with a tile factory at Asramam, Kollam to the plaintiff by executing a document on 10.12.1975. It was executed by exerting undue influence by the plaintiff over Sri. Gopalan. The defendants 2 to 6 are entitled only for the remaining assets which are only negligible when compared to the property in the gift deed. Sri. Gopalan had a debt of Rs.5 lakhs and it was settled by disposing of the D schedule lorry and E schedule saw mill and gold ornaments of the second defendant. He had sold D schedule lorry for Rs.1 lakh. E schedule movables were sold for Rs.75,000/-. The first defendant had borrowed Rs.2,50,000/- for discharging the liability of Sri.Gopalan. The defendants are not in possession of the movables described as F schedule. The construction in A schedule was not effected by the plaintiff and she is liable to be evicted from the property. The house in A schedule property was constructed by Sri.Gopalan and the plaintiff was residing in the building with his permission. In the year 1984 the plaintiff left the building because of some difference of opinion with Sri. Gopalan and then he permitted the fourth defendant to occupy the RSA No.523/2009 and 552/2010 9 building. When the plaintiff came to know that Sri.Gopalan executed a will in favour of the first defendant she trespassed into A schedule property on 19.6.1990 and occupied a portion of the building and then filed the suit. The second defendant was always helping Sri. Gopalan in his business and he was making money for the family and meeting the expenses for the studies of the third defendant, who was a pilot trainee. The allegation that E schedule machines were sold for Rs.2,35,000/- is not correct and so also there is no brick factory in B schedule. The will deed was executed by late Gopalan with a sound disposing state of mind by which he had bequeathed his properties in favour of the 1[st] defendant. He was a forest contractor who used to execute documents in English. 4. The defendants 2 and 3 by filing a separate written statement raised similar contentions as that of the first defendant. It was further contended that the will deed executed by Sri.Gopalan on 1.9.1989 came into effect and even the property was mutated in favour of the first defendant. In fact on 10.12.1975 their father Gopalan executed a gift deed and thus 1 Acre and 4.750 cents and a tile factory was gifted to the plaintiff RSA No.523/2009 and 552/2010 10 due to the undue influence exerted on him. The building was constructed by Sri.Gopalan. The plaintiff resided there upto June 1984 with his permission and thereafter the fourth defendant was residing in the building with her family members. The Plaint A, B and C schedule properties are in the possession of the first defendant and she is taking the yield from the properties. Sri.Gopalan had huge debts and the first defendant had disposed of D and E schedule properties to settle some of his debts. The E schedule movables were sold for Rs.75,000/- and D schedule lorry was sold for Rs.1 lakh to settle the debts. So it is pleaded that the plaintiff is not entitled to get share as claimed in the plaint. 5. The fourth defendant filed a separate written statement contending that the actual extent of the property in Asram at Kollam comes to 1 acre 25 cents and it is scheduled as A in the written statement. Sri. Gopalan had given all his daughters in marriage and imparted education to his children. The plaintiff who is his eldest daughter had some difficulties at her matrimonial home and hence she was brought to Asram and had given the old house in the A schedule property for her RSA No.523/2009 and 552/2010 11 accommodation. In the year 1968 he constructed a new building with his own funds and he permitted the plaintiff and her family to reside there. When the tile factory business fell in loss it was entrusted with the management of the plaintiff's husband. Utilizing the said opportunity he obtained the signatures of Sri.Gopalan in certain documents and thus a registered document was created as a gift deed for 104 cents of land. It was a fraud committed by the plaintiff and her husband. When Sri.Gopalan came to know about the same in the year 1984 the plaintiff had to move out from the A schedule property and they started to reside in a rental building. Thereafter the fourth defendant shifted to the building with her husband and he had effected improvements in the property. They have also modified the house by utilizing an amount of Rs.2,50,000/-. On 19.6.1990 the plaintiff trespassed into the building and forcibly occupied a portion of it. Thereafter there was a compromise talk and an agreement was executed on 8.1.1993. But later the fifth defendant had withdrawn from the agreement and she did not sign the document. In fact on 20.1.1993 the fourth defendant and her family shifted their residence from the building and RSA No.523/2009 and 552/2010 12 thereafter, the plaintiff and her family started to occupy the building in A schedule property. Out of 1 Acre 25 cents, 87 cents was mutated in the name of Sri. Gopalan and the remaining 38 cents was in the name of his brothers, Balakrishnan, Sukumaran and sister Narayani. Subsequently Sri.Gopalan acquired those properties by various documents. The plaint schedule properties are liable to be partitioned and the fourth defendant is entitled to get 1/6[th] share. As the plaintiff had already obtained 104 cents of land and a tile factory she is estopped from claiming further right from the remaining assets. Hence, the plaint schedule properties are liable to be divided into six equal shares and the fourth defendant is entitled to get one such share. The will is a void document cooked up by the second defendant after the demise of Sri.Gopalan are the contentions of the contesting 4[th] defendant. 6. The fifth defendant had taken a stand that the plaint schedule properties are liable to be partitioned and she is entitled to get 1/7[th] share. 7. Before the court below, the plaintiff was examined as PW1 and Exts.A1 to A15 were marked on her side. DW1 to 3 RSA No.523/2009 and 552/2010 13 were examined for the defendants 1 to 3 and Exts.B1 to 17 were marked. On appreciation of the evidence adduced by the respective parties, the court below passed a preliminary decree under the following terms: “A. Plaint A and B schedule properties will be partitioned in accordance with metes and bounds and the plaintiff and the 4[th] defendants will be allotted 1/6[th] share each and hand over separate possession to them. B. The mode of partition of plaint F schedule movables will be determined at the final decree stage. C. The parties shall apply for passing of a final decree along with a commission application.” 8. Heard Adv.Sri.S.Sreekumar, the learned Senior Counsel appearing for the appellant in R.F.A.No.523 of 2009 and the first respondent in R.F.A.No.552/2010 and Adv.Sri.P.Gopal, the learned Counsel appearing for the appellants in R.F.A.No.552 of 2010. 9. Admittedly, late Gopalan and Smt. Nalini were blessed with 2 sons (the defendants 2 and 3) and 4 daughters (the plaintiff and the defendants 4 to 6). Smt. Nalini, the first defendant was examined as DW2 before the trial court and she expired during the pendency of the suit. Sri. Gopalan passed away on 29.9.1989. The plaintiff's case is that Sri. Gopalan died RSA No.523/2009 and 552/2010 14 intestate on 29.9.1989 and as a legal heir she is entitled to get 1/7[th] shares over the plaint schedule properties. But the defendants 1 to 3 took the plea that Sri Gopalan had executed a will deed in favour of his wife, the first defendant bequeathing all his properties and therefore, the claim of the plaintiff for 1/7[th] share is not sustainable. 10. The first and the foremost question assailed and argued is with respect to the validity of the will deed dated 1.9.1989. The will deed is marked as Ext.B1(a). Ext.B1 is the copy. Whether the first defendant and the defendants 2 and 3, who had resisted the claim of the plaintiff on the strength of Ext. B1(a) could prove the same is the question to be looked into. Admittedly, Sri.Goplan died on 29.9.1989. It is the plaintiff's case that he was ailing for a pretty long period prior to his death due to renal failure and was physically weak and mentally unable to execute a will deed and in fact he was almost in an unconscious state due to the non functioning of both his kidneys. She asserted that he was not having a sound disposing state of mind at the time of execution of death. According to her there are several suspicious circumstances surrounding the execution of the will which ought RSA No.523/2009 and 552/2010 15 to render the will invalid. The main circumstances pointed out by the learned counsel for the plaintiff which create suspicion about the will deed are enumerated below: 1) Sri.Gopalan was completely laid up due to kidney failure and was undergoing treatment. His testamentary capacity was not proved by examination of the Doctor who treated him or by independent witnesses. 2) Ext.B1 (a) will deed is a typed one. Who typed it and where it was typed were not proved. 3) Sri. Gopalan had no amount in deposit. Though there was no bank balance there was reference about it in the deed. 4) Medical records regarding the treatment undergone by Sri.Gopalan were not produced by DW2 and the family Doctor was not examined though he was not in good health and died within a few days after the execution of the will deed. Therefore, it creates suspicion. 5) Sri.Gopalan was not an educated person though a contractor. The will deed was seen typed in English but it was not written in the deed that the same was read over to him or explained in vernacular language. RSA No.523/2009 and 552/2010 16 6) DW1 had not deposed before the court that the will deed was prepared as stated by Gopalan. 11. On the other hand, DW2 the wife of late Gopalan had deposed that the will deed is a genuine one and while executing the same he was mentally sound and physically perfect and it was executed in the presence of witnesses and he was having a sound disposing state of mind at the time of execution of the document. In an attempt to prove the execution of the document and the genuineness of the same, she had examined DW1 out of the two attesting witnesses to the will deed . 12. It is to be noted that the execution of Ext.B1(a) was on 1.9.1989 and his death was on 29.9.1989. The fact that he had some kidney problem and had undergone treatment in a hospital at Mysore was not in dispute, but according to her he was admitted in the hospital only for one week before his death. According to her one month back to his death he had even gone to Guruvayoor temple from Mysore by driving his car to offer prayers in the temple and Ext B9 is the receipt for the offerings in the temple. Since the claim of the plaintiff is denied on the strength of Ext.B1(a) the question to be looked into is whether RSA No.523/2009 and 552/2010 17 the propounder of the will could prove the genuineness of the will that it was executed by the testator with a sound disposing state mind as claimed by her. It is well settled that the propounder has to prove that the will satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and as mandated in Section 68 of the Evidence Act. ## 13. 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** 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 RSA No.523/2009 and 552/2010 18 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.] 14. 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 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 RSA No.523/2009 and 552/2010 19 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.***************” ## In **Beni Chend (since dead) now by L.Rs. v. Smt. Kamla Kunwar and others (AIR 1977 SC 63)** **“** 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 acknowledgment from the executant as regards the execution of the document. Nigam's evidence shows that he and the other two RSA No.523/2009 and 552/2010 20 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 is 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.” 15. Therefore, the proof of attestation of a will by RSA No.523/2009 and 552/2010 21 attesting witness is a mandatory requirement to prove the factum of execution of will. The attestors of Ext.B1(a) will deed are one Sri.Subharamayya and one Smt.Jayalekshmi. Out of the two attesting witnesses, Smt.Jayalekshmi was examined as DW1. She deposed that she was residing at Mysore just 1 km away from the residential house of Sri.Gopalan and the first defendant and she had acquaintance with them for more than fifty years. She was a teacher in a Government school at Mysore. According to her she used to call Sri. Gopalan as Gopi and on 1.9.1989 she went to his house as invited by DW2 his wife and had affixed her signature in the will deed as per the advice of Sri.Gopalan in his presence as well in the presence of Sri.Subaramayya, the other attesting witness and Smt.Nalini. She further deposed that she had affixed her signature in the will deed after Sri. Gopalan had affixed his signature and as witnesses the first attestor Sri. Subaramayya and herself affixed their signature in the presence of Sri.Gopalan. She also deposed that at the time of execution of the will deed in favour of Smt.Nalini, his wife, he was perfectly alright both physically and mentally, and was in a sound state of mind, quite able to understand things in the proper way. In cross RSA No.523/2009 and 552/2010 22 examination she would say that the will deed was a typed one and it was read over to Sri. Gopalan by Sri.Subaramayya and then Sri.Gopalan affixed his signature and thereafter the witnesses also signed the same. She had also deposed that the document was executed by Gopalan by about 12 o' clock in the presence of Smt.Nalini, the first defendant and Sri. Subarammayya, with a sound mind and she had gone to the house of Sri. Gopalan as invited by Smt.Nalini through a phone call and thus affixed her signature in the will deed executed by Sri. Gopalan as requested by him. So, DW1 the second attesting witness had deposed in definite terms before the trial court that Sri. Gopalan affixed his signature in the will deed with a sound mind in the presence of the witnesses and the witnesses affixed their signature in the will deed in his presence. She further deposed that she had also gone through the contents of the deed. It is pertinent to note that though this witness was thoroughly cross examined by the learned counsel for the plaintiff, nothing had been brought out in evidence to doubt the credence of her deposition. She was a person having acquaintance with the couple. It is most significant to note that RSA No.523/2009 and 552/2010 23 according to this witness the testator was not incapacitated in any manner. She had not given evidence to the effect that there was lack of testamentary capacity to him due to any ill health at the time of execution of the will deed. In fact her evidence is sufficient to prove the sound and disposing state of mind of Sri.Gopalan and affixture of signature by him in the will in the presence of witnesses. She was not a stranger to Sri .Gopalan or the first defendant but appears to be a person having close acquaintance with the family. But nothing is available on record to show that she had any special interest so as to depose falsehood before a court merely to help the beneficiary of the will. 15. When the first defendant established the competence of the testator to make the will at the time of execution, the onus is heavily upon the plaintiff to prove and establish that Sri.Gopalan was not having a sound disposing state of mind and he was not having physical and mental capacity to dispose of his assets by executing a document as he was seriously laid up due to renal failure. She had to prove that the will deed is invalid or shrouded with suspicious circumstances. At the outset it is to be RSA No.523/2009 and 552/2010 24 noted that though such a plea was raised by the plaintiff and vehemently contended so, she could not produce any medical certificates to establish that her father was completely laid up and had no testamentary capacity to execute a will deed and his physical ailment constitute a strong suspicious circumstance, to struck down the same. 16. The fifth defendant had placed on record a letter dated 15.9.1989 by filing I.A No.1243/2002 as Ext.B8. It is admittedly a letter written by DW2 ,the first defendant to the fifth defendant and her husband. In that letter, she had stated that Sri. Gopalan was laid up from 1.9.1989 and he was taking medicines for his illness. It was stated that he was having back pain and pain below the chest and he was unable even to sit or walk. The learned counsel for the fifth defendant as well the plaintiff had argued that since Sri.Gopalan was completely laid up as evident from the letter written by the first defendant dated 15.9.1989 and his death occurred on 29.9.1989 it was crystal clear that he was not in a sound and disposing state of mind and capable to understood the nature and effect of his actions or do anything of his own free will. But it is pertinent to note that there was RSA No.523/2009 and 552/2010 25 absolutely no whisper in this letter regarding the mental capacity of Sri. Gopalan. Nowhere in the letter it was stated that Sri. Gopalan was mentally weak or was not having a sound mind and was not capable to understand his actions during the month of September 1989.It is also important to note that nobody had rushed to Mysore to visit him on receipt of the letter from the mother. More over it is a letter written by the mother to his daughter. Obviously some kind of exaggeration is there and that could only be natural. So this document alone will not help the plaintiff or the other defendants disputing the will to prove that he was not having a sound disposing state of mind and was incapacitated in any manner. The mere fact that he was laid up for a few days was not at all sufficient to presume that he was not having the capacity or sound mind to execute the will deed on 1.9.1989, and it does not render any suspicion regarding the validity of the will. 17. The plaintiff has also pointed out that Subramayya who is the other attesting witness to the will deed was not cited as a witness and he was not examined to prove that the will deed was properly executed by the testator. DW1 and DW2 had deposed RSA No.523/2009 and 552/2010 26 before the court that he is no more and hence not available for examination before the court to prove the execution of the deed. Section 68 of the Evidence Act mandates only the examination of one attesting witness at least to prove the execution of the will deed. In the present case it has come out in evidence that Subbaramayya is not alive. Of-course the learned counsel for the plaintiff had submitted that there is no such person and the letter sent to him was returned with an endorsement that no person is available in the said address. But it is crucial to note that such a document has not come on record to place any reliance. 18. Another circumstance pointed out as a suspicious circumstance to doubt the genuineness of the will deed is that Sri.Gopalan was not an educated man and he had studied only upto 3[rd] standard and was not acquainted with English language so as to execute a document in English. But admittedly Gopalan was a forest contractor. DW1 had also deposed before the court that Gopalan was able to understand English and he was having the ability and knowledge to understand English language. According to DW2 he used to execute documents in English language and he had executed contracts and agreements with RSA No.523/2009 and 552/2010 27 the forest department of Karnataka State in English language. The evidence of DW2 his own wife had not been shaken in cross examination so as to doubt the veracity of her deposition. In fact it was corroborated by Ext.B13 and B3. Ext.B13 is one such agreement. It is relevant to note that Ext.B3 the gift deed, executed by Sri.Goplan in favour the plaintiff whereby certain properties were gifted to the plaintiff which was wholeheartedly accepted by the plaintiff, was in English language. So it has come out in evidence that Gopalan was a person having acquaintance in English language and in normal practice he used to scribe his signature and execute documents in English. So the will deed was not in vernacular language does not constitute a suspicious circumstance. 19. It was also pointed out by the plaintiff that Sri. Gopalan was having much love and affection towards his daughters and hence there was absolutely no reason to exclude them from allotting shares in the properties and to bequeath the entire properties in favour of his wife. But as mentioned above it is pertinent to note that by executing a gift deed Gopalan had given a major share of his property in favour of the plaintiff much RSA No.523/2009 and 552/2010 28 earlier. In fact about 1 acres 4.750 cents of land was given by him in favour of plaintiff in the year 1975. So it is not a case of total exclusion. Sri.Gopalan had bequeathed his properties to his beloved wife who was with him throughout his life and so there is nothing unnatural or unusual about the bequest and it does not render any suspicion. It is also pertinent to note what could be gathered from the evidence is that the will deed was typed as per the instructions of the testator with the assistance of Subrammayya and the contents were read over to him before execution. That part of evidence will not throw a cloud on the will to doubt about its validity. Sri. Gopalan was admittedly a contractor by profession. He was a person having bank transactions. Therefore, a reference regarding bank deposit in the will deed when no deposit was in any account would not create any room for suspicion. More over it was not proved by definite evidence that there was no amount in deposit. The evidence on record does not transpire that the will in question was executed after playing fraud. 20. It is also significant to note that the original will was kept in the safe custody of small cause court Mysore till it was RSA No.523/2009 and 552/2010 29 produced before the trial court. The testator was aged only 67 years at the time of execution of the will deed. His intention in executing the will by bequeathing his properties to his beloved wife might be to avoid complications in future in distributing his assets and in fact his desire was very much reflected in the words used by him in the will deed. 21. On a careful scrutiny and proper evaluation of the entire evidence, I am satisfied that the execution of the will deed by Sri. Gopalan was as contemplated under Section 63 of the Succession Act and it stands properly proved as per the mandate of Section 68 of the Evidence Act. The plaintiff and the defendants 4 to 6 who challenged the will could not adduce satisfactory evidence to establish or point out valid circumstances to render any suspicion regarding the execution of the will deed by the testator. On the other hand the defendants 1 to 3 could establish the competence and capacity of the testator to make the will at the time when it was executed and was successful in proving the validity and genuineness of the will deed. The will in question is the last will executed by the testator. So, in short it could correctly be concluded that Sri.Gopalan had bequeathed his RSA No.523/2009 and 552/2010 30 entire property voluntarily out of his free will in favour of his wife, the propounder and she had successfully discharged the burden cast upon her. Therefore, I find that Ext B1 (a) is not vitiated by any suspicious circumstances. 22. The plaint schedule properties are not liable to be partitioned as prayed for by the plaintiff or by the defendants 4 to 6. The observations made by the court below that the plaintiff is entitled to get share from the assets left by the DW2, the first defendant (died after her examination before the court) and hence the the properties are liable to be partitioned and she is entitled to 1/6[th] share are matters beyond the issue involved in the case. The line of approach of the court below on that aspect is not correct as it has traveled beyond the scope of the case pleaded and agitated before the court below. Even without an amendment to the pleadings the court had entered into a finding that the properties are liable to be partitioned. The dispute involved in the case is with respect to Ext.B1(a) will deed executed by Sri.Gopalan, the testator. The said finding of the learned court below is not sustainable and the same is accordingly, set aside. RSA No.523/2009 and 552/2010 31 In the light of the observations made herein before ,I find that R.F.A.No.552/2010 filed by the defendants 2 and 3 is only to be allowed and I do so. Therefore, the Judgment and Decree under challenge are set aside. Consequently, the suit stands dismissed. R.F.A.No.523/2009 filed by the plaintiff is dismissed. However, considering the relationship of the parties they are directed to bear their respective costs in both the appeals. Cross Objection and all interlocutory applications are also dismissed. smm **Sd/SHIRCY V. JUDGE**