V. MADHUSOODHANAN NAIR and others v. R. KRISHNAN NAIR and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH MONDAY, THE 26TH DAY OF AUGUST 2013/4TH BHADRA, 1935 FAO.No. 121 of 2011 ( ) -----------------------ORDER/JUDGMENT IN AS 62/2008 of II ADDL.D.C.,TRIVANDRUM DATED 14-022011 ORDER/JUDGMENT IN OS 233/1995 of I ADDL.SUB COURT,TRIVANDRUM DATED 27-02-2008 APPELLANT IN FAO/APPELLANTS IN AS/DEFENDANT 3 TO 5 IN SUIT: ---------------------------------------------------------- 1. V.MADHUSOODHANAN NAIR, S/O. VASUDEVAN PILLAI, KAMUKARAKONAM VEEDU, VATTAPPARA VILLAGE VATTAPPARA P.O. 2. V.MURALEEDHARAN NAIR, OF -DO- IN -DO- -DO3. V.RAJASEKHARAN NAIR, S/O. -DORESIDING AT ASWATHY BHAVAN, DARSAN NAGAR KUDAPPANAKUNNU, PEROORKADA, KUDAPPANAKUNNU VILLAGE. BY ADVS.SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.B.SUBRAMANYAN RES. IN FAO/RES. IN AS/PLAINTIFFS 2,4,6, 7 &ADDL. PLAINTIFFS 8 TO 11 AND DEFENDANT NO.2 IN SUIT: -----------------------------------------------------------*1. R.KRISHNAN NAIR, S/O.RAMAKRISHNA PILLAI, SYAMALAYAM, DARSAN NAGAR, KUDAPPANAKUNNU PEROORKADA P.O., KUDAPPANAKUNNU VILLAGE. (died,Lrs IMPLEADED) 2. R.VIJAYAN NAIR, S/O. -DO-., UMA MANDIRAM, KACHANI, KACHANI P.O. KARAKULAM VILLAGE-695013 3. A.RADHA BHAI, D/O. AMMUKUTTY AMMA, MADATHIL VEEDU, ARASUPARAMBU, NEDUMANGAD NEDUMANGAD VILLAGE-695541 4. R.RAMACHANDRAN NAIR, S/O. RAMAKRISHNA PILLAI, CHANDRA BHAVAN, VEMBU KURUPUZHA ELAVATTOM P.O., KURUPUZHA VILLAGE, NEDUMANGAD TALUK-695562 5. B.AMBIKA DEVI, D/O. BHAMA DEVI, BHAMALAYAM, ARASUPARAMBU, NEDUMANGAD NEDUMANGAD VILLAGE-695541 6. B.REMA DEVI, D/O. -DO-, RESIDING IN -DO- -DO- FAO.No. 121 of 2011 2 7. S.PADMAJA KUMARI, D/O. SUBHADRA KUMARI, BHADRA DEEPAM, KARTHIKA, D.NO.124 DARSAN NAGAR, KUDAPPANAKUNNU, PEROORKADA P.O. KUDAPPANAKUNNU VILLAGE. 8. VIJAYAKUMARAN NAIR, S/O.SUBHADRA KUMARI, VISHAK, DARSAN NAGAR, KUDAPPANAKUNNU P.O. KUDAPPANAKUNNU VILLAGE-695043 9. R.HRISHIKESAVAN NAIR, SARANYA, CO-OPERATIVE HOUSING GARDENS, NEAR MANNAMOOLA BRIDGE, MANNAMOOLA, PEROORKADA P.O. PEROORKADA VILLAGE-695006 ADDLR10. SHAJI KRISHANAN S/o.R KRISHANAN NAIR, 'KRISHNA NARAYANA', ADVOCATE DARSHAN NAGAR DN0-121, PEROORKADA P O KUDAPPANAKUNNU, THIRUVANANTHAPURAM-695 005 ADDLR11. SAJI KUMAR K S/o.R KRISHANAN NAIR, 'KRISHNA KRIPA' DARSHAN NAGAR DN0-122, PEROORKADA P O KUDAPPANAKUNNU, THIRUVANANTHAPURAM-695 005 (* - LR'S OF DECEASED R1 ARE IMPLEADED AS ADDL R10 AND R11 VIDE ORDER DTD 15.07.2013 IN I.A.387/2013) R9 BY ADV. SRI.S.VINOD BHAT R1 TO 8,R10-R11 BY ADV. SRI.P.GOPAL R1 TO 8 BY ADV. SRI.RAJAN NAMBRATH R1 TO 8,R10-R11 BY ADV. SRI.B.MURALEEDHARAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 26-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P.JOSEPH, J. ========================= F.A.O.No.121 of 2011 ============================ Dated this the26[th] day of August, 2013** ## **J U D G M E N T** This appeal is brought from the judgment dated 14.02.2011 in A.S.No.62 of 2008 of the Additional District Court, Thiruvananthapuram confirming the finding entered by the learned first Additional Sub Judge, Thiruvananthapuram in O.S.No.233 of 1995 as to the genuineness of Ext.B2, registered Will dated 16.07.1994 but, setting aside the finding regarding due execution and attestation of Ext.B1, settlement deed dated 20.02.1995 and remitting the suit to the trial court for fresh decision after recording appropriate evidence regarding due execution and attestation of Ext.B1. 2. The following substantial questions of law are framed for a decision: (i) Have not the propounders of the Will established execution and registration of the Will as mandated by law? (ii) Is the lower appellate court correct in law in brushing aside the evidence of the attesting witness, the Sub Registrar and the scribe who deposed to the execution of the Will and sound disposing state of mind of the testatrix? F.A.O.No.121 of 2011 2 (iii) Is the finding of the lower appellate court that the propounders of the Will have failed to dispel suspicious circumstances regarding the Will sustainable in law? (iv) Is not the settlement deed alleged to be executed by the plaintiff No.1 in favour of the 2[nd] defendant invalid? 3. The suit property originally belonged to one Narayani Pillai who died on 17.09.1994. She had five brothers - Kesava Pillai, the first plaintiff (who died issueless on 05.12.1996), Vasudeva Pillai, the first defendant (who died on 20.03.2005) and the deceased Ramakrishna Pillai, Neelakantapillai and Janardhana Pillai. Plaintiffs 2 to 11 and the second defendant are legal representatives of the late Ramakrishna Pillai. Defendants 2 to 4 (7[th] defendant also died) are the legal representatives of the late Vasudeva Pillai (the first defendant). Neelakantapillai and Janardhanapillai predeceased Narayani Pillai. 4. The first plaintiff claimed partition of the suit property as if Narayani Pillai died intestate. The first plaintiff is said to have executed Ext.B1, settlement deed dated 20.02.1995 in favour of the second defendant. Appellants/defendants 3 to 5 while resisting the suit made a counter claim based on Ext.B2, registered Will dated 16.07.1994. As per that Will, Narayani F.A.O.No.121 of 2011 3 Pillai is said to have bequeathed the suit property to the defendants 3 to 5. 5. Plaintiffs 2 to 7 filed written statement in answer to the counter claim. They denied that Ext.B2 is executed by the late Narayani Pillai. They claimed that since about three years prior to her death on 17.09.1994, Narayani Pillai was not having sound disposing state of mind and hence was incapable of executing the document. According to them, Ext.B2 is a concocted and forged document. 6. The trial court concluded that due execution and attestation of Ext.B2, Will is not proved. The trial court was of the view that the Will was not executed by the late Narayani Pillai. It upheld execution of Ext.B1 and based on that, passed a preliminary decree for partition. 7. Defendants 3 to 5 challenged that judgment and preliminary decree in A.S.No.62 of 2008. The lower appellate court confirmed finding of the trial court as to the due execution and attestation of Ext.B2, Will but, observed that evidence of PW1 who is an attestor in Ext.B1 is not sufficient to prove its due execution and attestation as required by the law. Consequently the judgment and decree of the trial court were set aside and the suit was remitted with a direction to the learned Sub Judge to F.A.O.No.121 of 2011 4 take further evidence as to the due execution and attestation of Ext.B1 (I am told that pursuant to the remand, the trial court has recorded further evidence). 8. Learned Senior Advocate for the defendants 3 to 5 raised an argument that finding of the first appellate court as regards due execution and attestation of Ext.B2, Will could be left open to be contested in a second appeal arising from the judgment and decree of the trial court after the remand ordered by the lower appellate court. Learned Senior Advocate on both sides relied on various decisions in support of their respective contentions as to the forum where such a contention could be taken up. Learned Senior Advocate for the second defendant, placing reliance on the decision in **Krishna Pillai v. Padmanabha Pillai (2004(2) KLT 61)** has contended that such a contention can be raised only in a forum superior to the court which ordered the remand. It is pointed out that the decision of this Court in this appeal could be challenged in the Supreme Court in an appeal arising after the remand. 9. I, having heard the learned Senior Advocates on both sides on the substantial questions of law framed as regards the finding of the lower appellate court, do not intend to leave the questions unanswered. F.A.O.No.121 of 2011 5 10. Learned Senior Advocate for the second defendant has raised a preliminary objection regarding maintainability of the appeals in this Court and the lower appellate court for the reason that though no separate shares are alloted to the defendants 6 to 14, their right over the property is declared by the trial court but they are not made parties in the appeals in the lower appellate court or in this Court. According to the learned Senior Advocate, judgment and decree passed by the trial court declaring right of the defendants 6 to 14 in the suit property must stand unaffected. It is argued that for the said reason the lower appellate court ought to have dismissed the appeal as not maintainable. 11. Learned Senior Advocate for the appellants/defendants 3 to 5 contended that of the defendants 6 to 14, defendants 6, 7, 10, 11, 13 and 14 filed statement supporting the appellants/defendants 3 to 5. Defendants 8, 9 and 12 remained absent in the trial court. Hence it was not necessary to implead the defendants 6 to 14 in the appeals in the lower appellate court or in this appeal. 12. So far as the said objection is concerned, I must notice that such an objection was not raised in the lower appellate court nor, considered by that Court. I must also notice that of the defendants 6 to 14, defendants 6, 7, 10, 11 and 13, 14 support F.A.O.No.121 of 2011 6 the defendants 3 to 5 as to the execution of Ext.B2, Will dated 16.07.1994. It may be that the trial court has declared right of the defendants 6 to 14 also in the suit property consequent to its finding that due execution and attestation of Ext.B1 dated 16.07.1994 is not established. I need not go into the question as to whether judgment and decree of the lower appellate court or this Court would be binding on the defendants 6 to 14 who are not impleaded in the lower appellate court or in this appeal. In that view of the matter, I am not inclined to accept the contention of the learned Senior Advocate on that point. 13. The substantial questions of law framed as required by the decisions in **Madhavan Vs. Thankam (2007(2) KLJ 253) and Narayanan v. Kumaran (2004(2) KLT 312)** for a decision relate to the finding of the courts below as to the genuineness of Ext.B2, Will and its due execution and attestation. As rightly pointed out by the learned Senior Advocate for the second defendant, unless the concurrent finding of fact entered by the courts below is perverse, this Court cannot interfere with that finding even if a different view of the matter is possible. That is because this court while deciding the appeal under Sec.100 of the Code of Civil Procedure (for short, "the Code”) is not entitled to substitute the finding of the courts below with its own finding if F.A.O.No.121 of 2011 7 the finding of the courts below is reasonably possible. if that finding is reasonably possible. 14. Defendants 3 to 5 contend that the late Narayani Pillai executed Ext.B2, Will on 16.07.1994. In answer to that, the plaintiffs 2 to 7 contended that the said Narayani Pillai was remaining unconscious since three years prior to her death on 17.09.1994. It is their further contention that she was undergoing inpatient treatment at the Medical College Hospital, Thiruvananthapuram from 10.07.1994, was discharged therefrom on 13.07.1994 and admitted the same day in the Sree Ramakrishna hospital, Sasthamangalam. She was got discharged on 15.07.1994 against medical advice and readmitted in the same hospital on 18.07.1994. She remained in that hospital in the same condition and breathed her last on 17.09.1994. 15. The disputed signatures in Ext.B2, Will was sent to the Forensic Science Laboratory, Thiruvananthapuram (in the connected criminal case for alleged forgery of Ext.B2, Will). Fr examination. Ext.A5 is the copy of report proved through PW2. Evidence of PW2 and Ext.A5 is to the effect that the disputed signatures in Ext.B2 are not put by the person who has put the specimen signatures forwarded to the FSL for examination. The trial and lower appellate courts have observed that in spite of F.A.O.No.121 of 2011 8 cross examination, evidence of PW2 and Ext.A5 stand and that nothing is brought to discredit the evidence of PW2 and Ext.A5. 16. PW3 is a clerk of the Sree Ramakrishna Hospital. He proved Ext.A6, a certificate dated 31.10.2007 issued by the late Dr. Venkiteswara Iyer. Ext.A6(a) is the readable copy of Ext.A6. In Ext.A6 it is stated that Narayani Pillai, aged 87 years was admitted in the Sree Ramakrishna Hospital on 13.07.1994 with complaint of weakness of right side body, loss of memory and inability to take food. Her illness was diagonised as Cerebrovascular accident. She was not physically well to be moved out. Despite that, she was taken home (from the said hospital) on 15.07.1994 and readmitted on 18.07.1994. Ext.A6 further states that Narayani Pillai was not capable of executing any Will voluntarily. 17. PW4 was a Medical Officer of the Sree Ramakrishna Hospital during the relevant time and claimed to have treated Narayani Pillai during her inpatient treatment in that hospital from 13.07.1994 to 17.09.1994. He stated that Cerebro-vascular accident is commonly called 'stroke'. Narayani Pillai had the inability to execute a document voluntarily due to loss of memory. Some part of her brain was damaged. Capacity or ability of a person depends on the region (of brain) affected. F.A.O.No.121 of 2011 9 18. DW6 was the R.M.O of the Sree Ramakrishna Hospital during the relevant time and proved Ext.X2 series, entries in the register concerning treatment given to Narayani Pillai. According to DW6, a part of the body of the late Narayani Pillai was paralyzed. As revealed from the register, she was suffering from Hemi-paralysis. She was admitted in the hospital for nursing care and not for treatment for recovery. By 'nursing care', DW6 explained that it means, keeping the body clean, providing nasal food through tube and taking out urine through tube. nursing care. DW6 stated that Cerebro-vascular accident could be recovered by treatment only within the first 12 hours but that was not possible in this case. There was no possibility for the late Narayani Pillai to recover from the Cerebro-vascular accident. She was in a state of coma during her treatment in the said hospital. He also stated that the patient was discharged on 15.07.1994 at 12.30 p.m. Ext.X2 series do not say that she was discharged on medical advice which meant that she was taken from the hospital not as per medical advice. She was brought back to the hospital on 18.07.1994. DW6 states that even at the time of discharge on 15.07.1994, she was carrying tubes for providing nasal food and for passing urine. She was brought back to the hospital on 18.07.1994 and at that time, her condition F.A.O.No.121 of 2011 10 had worsened. He would say that she was re-admitted in the hospital on 18.07.1994 on humanitarian grounds and not for recovery by treatment. 19. Evidence of defendants 3 to 5 concerning (alleged) execution and attestation of the Will comprises of the oral evidence of Dws.3 to 5. DW3 is the Sub Registrar who registered the Will. DW4 is one of the attestors (the other attestor having expired by the time of recording the evidence). DW5 is the scribe of Ext.B2. 20. DW4 stated that he attested Ext.B2, at Vattapara. He belongs to Vettinad and was going to his daughter at Kuttiani. On the way, he alighted at Vattapara. There, the 7[th] defendant who was acquainted to him wanted him to stay back for some time to attest a document. DW4 was taken to a shop room where he found a lady sitting in a chair. The Sub Registrar came there by 1.10p.m. The Sub Registrar asked the lady about the matter. She answered to that. She signed the document and affixed her thumb impression. He also signed the document. After that, the scribe (DW5) read over the document to the lady (at another stage DW4 stated that the lady signed the document after it was read over to her). It is the version of DW4 that at that time two old ladies (including the one who signed the document) were F.A.O.No.121 of 2011 11 present in the shop room. He had no previous acquaintance with the late Narayani Pillai. After execution of the document, the lady went out of the shop room (as if on her own). 21. DW3, the Sub Registrar would say that he was requested to register the document at the temporary residence of the late Narayani Pillai as per Ext.A7, application. Accordingly, he went there. In his presence, the document was executed. He would say that the contents of the document (Ext.B2) were read over and explained to Narayani Pillai. Thereafter she signed the document and it was registered. He recorded the statement of the said Narayani Pillai (Ext.X1). DW3 would say that Narayani Pillai who executed the document was having difficulties of old age. DW3 has no prior acquaintance with Narayani Pillai. He did not enquire about house No.TC 4/51 (referred to in Ext.B2 as the place of residence of Narayani Pillai). He also did not enquire what was the illness of Narayani Pillai (referred to in Ext.A7, application). 22. DW5 is the scribe. He gave evidence supporting due execution and attestation of Ext.B2. He preferred Ext.A7, application requesting the Sub Registrar (DW3) to register the document at the place of residence of Narayani Pillai. He would say that the document was executed and registered in a house at F.A.O.No.121 of 2011 12 Vattappara, stated to be the house of a relative of Narayani Pilla. He would also say that the property dealt with as per Ext.B2 is situated within the local limits of the Sub Registrar, Pattom and that office is situated at Muttada. DW5 stated that his office is at Kanyakulangara which is 5 km away from Vattapara. 23. Learned Senior Advocate for the defendants 3 to 5 has contended that what is required to be proved is sound disposing mind for the testator at the relevant time and not sound physical health. It is argued that the evidence of DWs.3 to 5 is sufficient to prove due execution and attestation of Ext.B2, Will and that finding of the courts below to the contrary is perverse. 24. Learned Senior Advocate for the plaintiffs 2 to 7 has placed reliance on the decisions in **H.Venkitachala Iyengar Vs. B.N Thimmajamma & Ors. (AIR 1959 SC 443), B. Venkatamuni Vs. C.J Ayodhyaram Singh & Ors. (2006(13) SCC 449), Adivekki & Ors. Hanamavva Kom Venkatesh (Dead by Lrs. & Anr.) (2007(7)SCC 91), Laxmanan v. Padmini (2009(1) KLT 29) and Balathantayuthum & Anr. Vs. Ezhilarasan (2010(5) SCC 770)** to contend that it is for the propounder to prove due execution and attestation of the Will and remove all suspicious circumstances surrounding its execution and attestation. Reliance is also placed on the decision in F.A.O.No.121 of 2011 13 ## **Bharpur Singh & Ors. Vs. Shamsher Singh (AIR 2009 SC** **1766)** to say that what would be suspicious circumstances surrounding the due execution of the Will. 25. In the said decision and in **Pappoo v. Kuruvilla (1994(2) KLT 278)** it is held that a circumstance would be suspicious if it is not normal or is not normally expected in a normal circumstance or is not expected of a normal person. 26. True that Ext.B2, Will is registered. But, registration by itself is not proof of due execution and attestation of the Will. Evidence of PW2 and Ext.A5 show that the disputed signatures in Ext.B2 are not of the late Narayani Pillai. If so, the thumb impressions appearing in Ext.B2 as of the executant could not also be of the late Narayani Pillai. For, the two could be of the same person. 27. None of DWs.3 to 5 had any prior acquaintance with the late Narayani Pillai. Even according to DW4, there were two ladies present at the time of alleged execution and attestation of the Will. The propounders of the Will did not venture to examine any of the identifying witnesses to prove identity of the executant. Evidence of DWs.3 to 5 at the best show that a lady, introduced to them as Narayani Pillai signed the document. There is no acceptable evidence to show that Ext.B2 was executed by the late F.A.O.No.121 of 2011 14 Narayani Pillai. On the other hand, the evidence of PW2 and Ext.A5 show otherwise. 28. There are suspicious circumstance surrounding the execution and attestation of the Will. The property dealt with as per Ext.B2 is situated within the local limits of the Sub Registrar, Pattom. It is not explained why the late Narayani Pillai was (allegedly) taken to a shop room at Vattapara. If according to DW5 the execution, attestation and registration were in a house at Vattapara which he was told, belonged to a relative of the late Narayani Pillai, DW4, the attestor is sure that it happened in a shop room at Vattappara. It is relevant to note that in Ext.A7, request was to register the document at the temporary residence of the late Narayani Pillai (mentioned as house No.KP 3/320). But in Ext.B2, place of residence of Narayani Pillai stated is house No.TC 4151 (learned Senior Advocate for the plaintiffs 2 to 7 has submitted that the plaintiffs 2 to 7 had produced document in the trial court to show that room No.KP 3/320 belonged to another person not in any way connected with the late Narayani Pillai. But, that document is not admitted in evidence and hence I am not referring to that). It is also not explained why the Will was not got executed, attested and registered at the hospital itself if that was needed. F.A.O.No.121 of 2011 15 29. In Ext.A7, it is stated that the late Narayani Pillai was undergoing treatment on account of old age and hence the document had to be registered at her place of temporary residence. Still, DW3, the Sub Registrar says that he did not ascertain what is the illness of the late Narayani Pillai who is said to have executed Ext.B2. 30. The very presence of DW4 who claims to be an attestor in Ext.B2 at the relevant time and place is to be doubted. It is difficult to believe that while he was going to his daughter's house at Kuttiani, he was made to stay back at Vattapara for a while, defendant No.7 who was previously acquainted him wanted him to attest the document and he obliged. It would appear from the evidence of DW5, the scribe that the document was prepared earlier in which case it is unlikely that DW4 happened to be a chance witness for the execution. The courts below have disbelieved DW4 for valid reasons. 31. The condition of late Narayani Pillai at the relevant time also does not inspire confidence in the version of the propounders of the Will as regards her capacity, both physical and mental to execute a document. Evidence of PW3, DW6 and Exts.A6 and X2 series would show that during the relevant time, Narayani Pillai was lying in an unconscious state with hemi F.A.O.No.121 of 2011 16 paralylsis with nasal feeding and passing urine through tube and that she was not fit to be discharged on 15.07.1994. Her admission in the hospital on 10.07.1994 and re-admission (on humanitarian grounds) on 18.07.1994 was not for treatment for recovery but only for nursing care as she was suffering from Cerebro vascular accident leading to hemi paralysis and loss of memory. If the version of DW4, the attestor that he saw the lady (who executed the document) sitting in the chair, answering queries of DW3, the Sub Registrar and walking out of the shop room after execution were true, that lady could not have been the late Narayani Pillai. So too, regarding the version of DW3 about the lady giving him Ext.X1, statement. 32. The courts below have referred to the evidence and found that due execution and attestation of Ext.B2, Will is not proved. It is also found that there was no possibility of the late Narayani Pillai executing Ext.B2, Will. Finding of the courts below as regards execution, attestation and registration of Ext.B2, Will rest upon proper appreciation of the evidence on record. I am inclined to think that no different view is possible on evidence, not to say that even if a different view is also possible, this Court while considering the appeal subject to the parameters laid down in Sec.100 of the Code is not competent to substitute F.A.O.No.121 of 2011 17 its view for the view taken by the courts below. There is little reason to interfere with the concurrent finding entered by the courts below as to the execution, attestation and registration fo Ext.B2, Will dated 16.07.1994. 33. The substantial questions of law framed are answered as above. Resultantly, I The appeal fails. It is dismissed. II The parties are directed to suffer their respective cost in the appeal. All pending interlocutory applications will stand dismissed. Sd/- **THOMAS P.JOSEPH, JUDGE** Sbna _True Copy_ P.A to Judge