Thundikkandy Devaki v. Thundikkandy Ashokan and Thundikkandy Janaki

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932** **SA.No. 596 of 2000(D)** - **------------------------------** **[AS.NO.82/1988 OF ADDL. DISTRICT COURT, THALASSERY, OS.NO.225/1986 OF MUNSIFF COURT, KOOTHUPARAMBA]** **....................** ## **APPELLANT/1ST RESPONDENT/PLAINTIFF:** **---------------------------------------------------------------** ## **THUNDIKKANDY DEVAKI, D/O. KELAN, AGED 62 YEARS, KOOTHUPARAMBA AMSOM, MURIYAD DESOM, KOOTHUPARAMBA.P.O.** **BY ADV. SRI.CIBI THOMAS.** ## **RESPONDENTS/APPELLANT/RESPONDENT NO.2/DEFENDANT:** **------------------------------------------------------------------------------------------** **1. THUNDIKKANDY ASHOKAN, S/O. NANU, KOOTHUPARAMBA AMSOM & DESOM, KOOTHUPARAMBA.P.O.** **2. THUNDIKKANDY JANAKI, D/O. KELAN, KOOTHUPARAMBA AMSOM, MOORIYAD DESOM, KOOTHUPARAMBA.P.O.** **R1 BY ADV. SRI.V.V.ASOKAN, R2 BY ADV. SRI.K.N.SIVASANKARAN.** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2010, THE COURT ON 19/07/2010 DELIVERED THE FOLLOWING:** **prv.** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 596 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of July, 2010. ## **JUDGMENT** The plaintiff in O.S. 225 of 1986 before the Munsiff's Court, Kuthuparamba, whose suit was dismissed by the lower appellate court, has come up before this court. 2. The litigations centering around Ext.B7 Will started in the year 1986. This is the second round of litigation before this court. 3. The suit was one for partition. The plaintiff and the first defendant are sisters. Their parents were Kelan and Cheerootty. Kelan transferred the suit property in favour of Cheerootty and she obtained purchase certificate from the Land Tribunal. Kelan by Ext.A6 will had gifted items 1 to 3 to the first defendant, items 2 and 4 to the plaintiff, item No.5 to the second defendant Asokan, and to the son of the plaintiff, Pinkalakshan and item No.6 to Pinkalakshan. It appears S.A.596/2000. 2 that Cheerootty, the mother of the plaintiff and the first defendant had executed Ext.B7 Will bequeathing her property in favour of the second defendant. Assailing the Will, one of the daughters of Cheerootty laid a suit for partition. According to her, the Will is a concocted and fabricated document and Cheerootty had not executed any such deed. 4. The suit was resisted by the defendants. It was pointed out that Ext.B7 Will dated 25.12.1979 was infact executed by cheerootty and that it is a valid Will. They admitted that Kelan had executed a Will, namely, Ext.A6, by which he had bequeathed his properties in favour of his children and grand children. Kelan died on 31.3.1971 and Cheerootty died on 26.6.1986. It was contended on behalf of the defendants that Cheerootty at the relevant time was residing in item No.2 shown in the schedule attached to Kelan's Will. The first defendant was residing with her husband at Cheruvancheri. The defendants would point out that after the death of Kelan, plaintiff's husband Raghavan S.A.596/2000. 3 took up residence with Cheerootty. Their relationship got strained and Cheerooty left the house and took shelter in her brother's house. Coming to know about this development, it is claimed that, the second defendant put up a house for Cheerootty. Cheerootty took up residence in that house and remained there till her death. The allegation that the Will was concocted and fabricated one was denied. They prayed for a dismissal of the suit. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and the documents marked as Exts.A1 to A7. The defendants had D.Ws. 1 to 5 examined and Exts.B1 to B14 marked. Ext.X1 is the third party exhibit. 6. The trial court did not accept the Will as a genuine document and therefore granted a preliminary decree in favour of the plaintiff. The second defendant challenged the same before the lower appellate court. The lower appellate court took a different view and held that the 4 Will was a valid and genuine one resulting in dismissal of the suit. The following questions of law are seen raised in this Second Appeal: _“1. Whether the lower appellate court was correct in law in reversing the well considered decree and judgment of the trial court?_ _2. Whether the lower appellate court was in correct in law in stating that Ext.B7 Will is genuine, valid and binding on the parties?_ _3. Overlooking patent suspicious circumstances such as delay in registering the Will, contradictory depositions on attestors, the scribe confessing his ignorance, the discrepancies of the age of testatrix in (B6, B7 an X1) and the testatrix disinherit the rightful shares with no reason for exclusion especially when she continued to line with her the plaintiff till 1.1.1985._ _4. Whether the appreciation of the court below on oral and documentary evidence are correct in law?_ _5. Whether the court below was correct in holding that the plaint schedule property is not available for partition?_ S.A.596/2000. 5 _6. Whether the evidence to clear the suspicious circumstances has been discharged by the propounder of the Will?”_ 7. The short point that arises for consideration is whether the view of the lower appellate court that Ext. B7 Will is genuine and good is sustainable in law. 8. Learned counsel appearing for the appellant contended that the lower appellate court was not justified in reversing the finding of the trial court, which had considered all the aspects of the case. The trial court has narrated the various circumstances, which would throw considerable doubt regarding the genuineness of the Will and the said court had appreciated the evidence in the proper perspective. There were suspicious circumstances, which could not be explained by the propounder of the Will. At any rate, according to learned counsel, the view of the trial court being a possible view, the lower appellate court was not S.A.596/2000. 6 justified in upsetting the same. Learned counsel pointed out the following circumstances regarding the execution of the Will: i) The entire property owned by Cheerootty had been bequeathed to the second defendant, the son of the first defendant. ii) Evidence regarding the ill-will between Raghavan and Cheerootty is after the execution of the Will. iii) Even though the Will was executed on 25.12.1979, it was registered only on 1.1.1980. iv) Ext.A7 ration card would show that Cheerootty was residing with the plaintiff. v) None of the documents produced by the defendants would show that Cheerootty was living elsewhere. vi) There is absolutely no evidence of strained relationship between Raghavan and Cheerootty. vii) The evidence furnished by the attesting witnesses and the scribe are far from satisfactory. S.A.596/2000. 7 9. Both the courts have considered various aspects in detail. As noticed by the lower appellate court, it appears that the trial court concentrated more on certain insignificant aspects in the evidence of witnesses and highlighted them to doubt the Will. It does not appear that the trial court focused its attention to the real issue involved in the case. It seems to have been more concerned with the insignificant aspects in the evidence of the attesting witnesses, the testator and the scribes's evidence. Much weight was given to the evidence of P.W.5 to the effect that Cheerootty was not very familiar to him and he does not remember most of the things. It was also found by the trial court that on a close scrutiny of the evidence of D.Ws. 3 and 4 it would appear doubtful whether the Will was executed by Cheerootty. 10. One fact must be noticed. The specific case put forward by the plaintiff is that Ext.B7 Will is a concocted document and that it has been obtained by misrepresentation. S.A.596/2000. 8 11. It will be useful first to refer the evidence regarding the proof of the Will. Before going into that aspect, the law on the point may first be noticed. Section 63 of the Indian Succession Act deals with the execution of the Wills. The said provision stipulates that the Will shall be in writing and shall be signed by the testator and also be signed by two attesting witnesses. It is also stipulated in the said provision that the testator should see the attesting witnesses signing the document and vis versa. The mode of proof of a Will is contained in Section 68 of the Indian Evidence Act. According to that provision, in the case of a Will, it is necessary to examine at least one of the attesting witnesses to prove the due execution of the Will. It is also well settled that if the attesting witness, who was examined does not speak about the attestation by the other witness also, then the other witness too will have to be examined. 12. It is well settled that the burden to prove the due execution of the Will is on the propounder of the Will. He has to prove that the Will was infact executed by the 9 S.A.596/2000. testator and that the testator had a sound disposing state of mind at the time of execution of the deed. Apart from proving the above facts, if there are suspicious circumstances surrounding the Will, the propounder had an added burden to satisfy the conscience of the court that the Will was in fact executed by the testator. 13. There is a plethora of decisions on this point. It is unnecessary to refer all of them. The often quoted decision is the one reported in **H. Venkatachala Iyengar v. B.N.Thimmajamma** (AIR 1959 SC 443). The decision of the apex court has exhaustively dealt with the nature of the proof required in the case of a Will and the obligation on the propounder to remove the suspicious circumstances surrounding the Will, if there are any. In the decision reported in **Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande** ((2003) 8 SCC 537) it was held as follows: S.A.596/2000. 10 _“Before we advert to the submissions made by the learned counsel for the parties, it will be useful to briefly notice the legal position regarding acceptance and proof of a Will. Section 63 of the Indian Succession Act deals with execution of unprivileged Wills. It lays down that the testator shall sign or shall affix his mark to the Will or it shall be signed by some other person in his presence and by his direction. It further lays down that the Will shall be attested by two or more witnesses, each of whom has seen the testator signing or affixing his mark to the Will or has seen some other person sign the Will, in the presence and on the direction of the testator and each of the witnesses shall sign the Will in the presence of the testator. Section 68 of the Evidence Act mandates examination of one attesting witness in proof of a Will, whether registered or not. The law relating to the manner and onus of proof and also the duty cast upon the court while dealing with a case based upon a Will has been examined in considerable detail in several decisions of this Court viz. H. Venkatachala Iyengar v. B.N.Thimmajamma, Rani Purnima Debi v. Kumar Khagendra Narayan Deb_ S.A.596/2000. 11 _and Shashi Kumar Banerjee v, Subodh Kumar Banerjee. It is will be useful to reproduce the relevant part of the observations made by this court in the Constitution Bench decision in Shashi Kumar Banerjee which are as under:_ _“The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the exdecution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural, improbable or unfair in the_ S.A.596/2000. 12 _light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. if the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations.””_ 14. The proof of a Will does not differ from the proof of other documents except for the special mode of proof prescribed in Section 68 of the Indian Evidence Act. One cannot expect mathematical precision regarding the proof of a Will. If the due execution of the Will is proved, then if the contesting party has a case that the Will is vitiated due to any reason, the burden shifts to him to prove the said vitiating element. S.A.596/2000. 13 15. Often the question arises as to what are the suspicious circumstances. One cannot be exhaustive regarding this aspect. Usually, the circumstances may relate to i) the genuineness of the signature of the testator, ii)the state of the testator's mind, iii) the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances etc. 16. Bearing the above principles in mind, an attempt shall now be made to ascertain whether the due execution of the Will has been proved. D.W.1 is the second defendant and D.W.2 is the first defendant. Their evidence would disclose that Cheerootty was an independent strong lady, who had her own predilections. One fact may at once be noticed. There is no dispute regarding the fact that at the relevant time, Cheerootty was hale and hearty and enjoyed good health. Therefore her testamentary capacity is not in doubt at all. Of course, D.Ws.1 and 2 speak about the strained relationship between Cheerootty and Raghavan, the husband of the plaintiff, which resulted in Cheerootty S.A.596/2000. 14 leaving the house. The plaintiff has a case that Cheerootty did not leave the house and continued to stay with her. But the evidence reveals that Cheerootty did reside elsewhere and she also sought that her name be struck off from the ration card. That was done also. At any rate, it is seen that at the time of death, Cheerootty was living in the house said to have been put up by the second defendant. One must also remember that the Will is dated 25.12.1979 and Cheerootty died on 26.6.1986. That means that she lived for seven years after the execution of the Will. Of course, P.W.1, the plaintiff strongly opposed that the Will was executed by Cheerootty. D.Ws. 3 and 4 are the two attesting witnesses. 17. D.W.3 was running a business at the relevant time. He says that Cheerootty and her husband were familiar to him. He speaks about having signed in a document in which Cheerootty had also signed. He would say that he had affixed his signature as requested by Cheerootty. He would say that he had signed in the office of S.A.596/2000. 15 the scribe. He would also say that the scribe had read out the document to Cheerootty and that he, Cheerootty and the other attesting witness signed the document. He would also say that he had signed as a witness in the Sub Registrar's Office. 18. D.W.4, the other attesting witness, was a taxi driver at the relevant time. He claims that he knew Cheerootty from his childhood. He also says about having signed in a document said to have been executed by Cheerootty as a witness. He says that he has signed on the request of Cheerootty. Of course, he says that it was while he was waiting in the taxi stand Cheerootty came and asked him to accompany her. They went to the scribe's office and there he signed in a document. He too would depose that the contents of the document were read out to Cheerootty by the scribe. He had also said that he had gone to the Registrar's office and signed before the Registrar. S.A.596/2000. 16 19. Going by the above evidence, it is clear that the document was signed by Cheerootty and it was attested by D.Ws.3 and 4. D.W.5 is the scribe. His evidence shows that Cheerootty approached him for drawing up of a Will. He made sure that she had a sound disposing state of mind and drafted the deed and read it out to her. He asserts that he usually ascertains the state of mind of the person who comes to him for drawing up a Will. He also says that he usually ensures that he reads out the document to the person concerned and he also insists that the testator and the witnesses sign in his presence. In cross-examination he was unable to remember many of the things as it happened years ago. He also says that he cannot say that Cheerootty was very familiar to him. He is unable to say whether anybody else had accompanied Cheerootty. He also does not remember that whether Cheerootty could read or write. He honestly stated that he does not remember whether he had read out the document because Cheerootty could not read or write. He however asserts that the details were S.A.596/2000. 17 given to him by Cheerootty. He also in his crossexamination had stated that Cheerootty introduced herself to him. 20. The aspects which impressed the trial court to hold against the defendants are certain portions of the evidence of D.Ws.1, 3 and 4. It relates to they having studied in the same School etc. The trial court found that the suggestion by the plaintiff that the second defendant and D.Ws.1, 3 and 4 were school mates cannot be brushed aside. The trial court was also greatly impressed by the fact that both the attesting witnesses were unable to clearly specify the features of Cherootty and it was also found that it was extremely doubtful whether the persons of the nature of D.Ws.3 and 4 could have been selected by Cherootty to attest her Will. Another fact, which weighed the trial court was that the close relatives of Cheerootty were document writers and there is no reason why she should select D.W.5 for drafting her Will. In fact the court goes on to hold that Cheerootty shown in the document may not be the original S.A.596/2000. 18 Cheerootty. Yet another fact, which weighed the trial court was that going by the evidence of D.W.2, Cheerootty seems to have equal affection to both her daughters. if that be so, according to the trial court, it is rather inconceivable that she would have bequeathed her entire property in favour of the second defendant, who is the son of the first defendant. The trial court also held that there was no evidence regarding the strained relationship between Raghavan and Cheerootty. 21. However, the lower appellate court was of the view that the facts which impressed the trial court to hold against the Will were too insignificant. The lower appellate court considered the evidence of D.Ws.3 and 4 and came to the conclusion that there is nothing to doubt their testimony at all. The lower appellate court found that the evidence of D.W.5 to be natural. According to the lower appellate court, it is virtually impossible for a busy scribe like D.W.5 to remember the minute details regarding the drafting of a Will and about the features of the person, who approached him. 19 The lower appellate court has also noticed that D.W.5 has given clear evidence that he usually ascertains whether the person has a sound state of mind and also he ensures that after the document is drawn up, he reads it out to the person concerned. 22. It has to be said that the finding of the lower appellate court is more acceptable. All the witnesses are rustic witnesses and the court has to bear in mind that aspect while appreciating the evidence of them. The lower appellate court has noticed that the finding of the trial court that D.Ws.1, 3, and 4 are class mates may not be correct. 23. It is quite evident from the evidence that Cherootty was a strong lady. She had strong likes and dislikes and she was an independent person. This would be clear from the evidence of P.W.1. P.W.1 admitted that Cheerootty did leave the house of P.W.1 and took up residence in the house said to have been put up by the second defendant. At any rate, she died not in the house of P.W.1. The evidence of P.W.1 also discloses that Cheerootty S.A.596/2000. 20 had insisted that her name be struck off from the ration card, which she held. Her evidence has also disclosed that Cheerootty usually did not inform anybody where she had gone and what she had done. When she was ill she would not even disclose to P.W.1 which doctor she had met and what are the medicines prescribed by the doctor. Therefore, there is also some indication in the evidence to show that the relationship between P.W.1 and Cheerootty got strained. That obviously must be due to her husband Raghavan. 24. One significant aspect which one cannot omit to notice is that there is absolutely no evidence in this case to show that at the time of execution of the Will the second defendant was in station. The evidence of D.W.1 which remains un-controverted or un-impeached shows that he was at Bombay at the relevant time. It escapes one's understanding how from Bombay he could have manipulated S.A.596/2000. 21 a document. Of course, P.W. 1 has a case that he had not gone anywhere. But that can be taken only with a pinch of salt. 25. Coming to the various suspicious circumstances pointed out by the learned counsel for the appellant viewed in the light of the evidence in the case, it cannot be said that there are much significance. 26. The evidence clearly shows that the property given to the plaintiff as well as to her children by Kelan is much more than what has been given to the first defendant and her son. May be that Cheerootty had equal love for both her daughters. But the fact remains that during the latter period of her life, she had to take up residence elsewhere and the reason is obvious. If under those circumstances, she felt love and affection for the second defendant, who gave her shelter, there is nothing wrong about it. It has been held that merely because some of the S.A.596/2000. 22 heirs are disinherited by the mother, that would not amount to a suspicious circumstance. After all a Will is intended to interfere with the normal course of succession. 27. It may be true that there is no clear evidence regarding the ill-will between Raghavan and Cheerootty. But that is not necessary. There is evidence to show that she had to leave the house of P.W.1 and that must be due to the reason that she disliked staying with her, whatever may be the reason. Her insistence to strike off her name from the ration card also assumes significance in this regard. It is not correct to say that there is no evidence to show that Cheerootty had lived elsewhere. At any rate, death of Cheerootty did not occur in the house of P.W.1. 28. May be that Cheerootty was not justified in giving the entire property to the second defendant. As rightly noticed by the lower appellate court, in the decision reported in **Motibai Hormusjee Kanga v. Fametjee Hormusjee Kanga** ( 1924 PC 28) it was held as follows: S.A.596/2000. 23 _“A man may act foolishly and even heartlessly; if he acts with full comprehension of what he is doing, the Court will not interfere with the exercise of his volition.”_ It is not for the court to sit in judgment about the propriety of the dispositions by the testator. Once it is found that the Will was infact executed by the testator and she had a sound disposing state of mind, however unpleasant may be the terms, one has to give way to the same. 29. One fact which was highlighted by the learned counsel for the appellant was that the Will was executed on 25.12.1979, but it was registered only on 1.1.1980, i.e. six days after the execution of the Will. The gap remains unexplained. 30. 25.12.1979 is the Christmas day. If the Will was registered only a few days thereafter, that does not make the Will suspicious. In fact the factum of registration gives further credence to the Will. Even though registration S.A.596/2000. 24 by itself may be a ground to hold that it is a validly executed Will, it is an added circumstance when the execution of the Will is duly established to uphold the Will. 31. It was the above facts and circumstances, which had impressed the lower appellate court to hold in favour of the Will. The lower appellate court has considered the matter in considerable detail and has approached the issue in the proper manner. The lower appellate court has given cogent and convincing reason as to why the so-called inconsistencies highlighted by the plaintiff to doubt the Will could not be accepted. The entire evidence has been considered and the various criticism levelled against the evidence of witnesses have been dealt with by the lower appellate court. It could not be said that on the basis of the evidence, the lower appellate court was unjustified in reversing the finding of the trial court. 32. At the risk of repetition, one may notice that the trial court was more concerned about the minor inconsistencies in the evidence of witnesses rather than S.A.596/2000. 25 focusing its attention to the execution of the Will. One is yet to find perfect evidence. There will be some inconsistencies and contradictions in the evidence of witnesses. But the question is whether they are so material or so significant so as to make their evidence untrustworthy. In the case on hand, there is nothing to show that the attesting witnesses of the Will and the scribe had any special affection towards the defendants. One may notice that there is nothing to indicate that at the time of execution of the Will the second defendant was in station or he had any role to play in the execution of the Will. It is also significant to note that there is no suggestion to D.Ws. 3, 4 and 5 that the signature found in Ext.B7 Will is not that of Cheerootty but of someone else. Of course there is a suggestion to D.Ws.1 and 2 that the Will is a concocted document. But it is also important to notice that there is no suggestion to D.W.1, the second defendant, that it was at his behest that the Will had been drawn up. S.A.596/2000. 26 There is also no evidence to show that the defendants had any knowledge about the Will before the death of Cheerootty. The result is that the finding of the lower appellate court seems to be fully justified and convincing enough since it is based on evidence adduced in the case. It cannot be said that the findings are either perverse or not warranted by the evidence on record. Being a finding of fact, interference under Section 100 of the Code of Civil Procedure is limited. No substantial question of law arises for consideration in this Second appeal. This Second Appeal is dismissed. There will be no order as to costs. ## **P. BHAVADASAN, JUDGE** sb.