Vijayarajan v. C. Radha and Vilasini

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 25TH DAY OF FEBRUARY 2016/6TH PHALGUNA, 1937** ## **RSA.No. 851 of 2014 (B)** **----------------------(AGAINST THE DECREE AND JUDGMENT IN AS.NO. 30/2008 OF DISTRICT COURT, MANJERI) (AGAINST THE DECREE AND JUDGMENT IN OS.NO. 145/2005 OF MUNSIFF MAGISTRATE COURT, PERINTHALMANNA)** **------------------** ## **APPELLANT/APPELLANT/1ST DEFENDANT:** **---------------------------------------------------------------** **VIJAYARAJAN, S/O. LATE PARUKUTTY AMMA,AGED 61, CHALLIYIL HOUSE, P.O.CHOORAKODE, VALLAPUZHA AMSOM, CHOORAKODE DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT.** **BY SRI.T.KRISHNAN UNNI,SENIOR ADVOCATE ADVS. SRI.VINOD RAVINDRANATH SRI.T.SIVADASAN SRI.SAJU.S.A SRI.K.C.KIRAN SRI.M.DEVESH** ## **RESPONDENTS/RESPONDENTS/PLAINTIFF & 2ND DEFENDANT:** **---------------------------------------------------------------------------------------------** ## **1. C.RADHA,** **W/O. LATE VASUDEVAN NAIR,AGED 62, CHALLIYIL HOUSE, P.O.CHOORAKODE, VALLAPUZHA AMSOM, CHOORAKODE DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN-679 336.** ## **2. VILASINI,** **W/O. P.DAMODARAN,AGED 64, PUTHUKULATHIL VEEDU, P.O.CHERPLASSERI, CHERPLASSERI AMSOM DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN-679 336.** **R1 BY ADV. SRI.U.K..DEVIDAS** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18-02-2016, THE COURT ON 25-02-2016 DELIVERED THE FOLLOWING:** **sts** ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **R.S.A. No.851 of 2014 ----------------------------------------------Dated 25[th] February, 2016.** ## **J U D G M E N T** The first defendant in a suit for partition is the appellant in this appeal. 2. The property sought to be partitioned belonged to one Parukutty Amma. The plaintiff is the daughter of Parukutty Amma and the first defendant is her son. The second defendant is another daughter of Parukutty Amma. According to the plaintiff, on the death of Parukutty Amma, one third share over the suit property devolved on her and hence the suit for partition of the said share of the plaintiff. The first defendant contested the suit contending mainly that the suit property has been bequeathed to him by Parukutty Amma as per Ext.B1 Will and therefore, the same is not partible. The trial court found that the first defendant has not proved the execution of Ext.B1 Will. The trial court also found that the first RSA No.851 of 2014 2 defendant has not explained to the satisfaction of the court all suspicious circumstances surrounding the execution of Ext.B1 Will. Consequently, the suit was decreed declaring the right of the plaintiff over the suit property. Though the first defendant took up the matter in appeal, the appellate court confirmed the decision of the trial court. Hence this second appeal by the first defendant. 3. Heard the learned Senior Counsel for the appellant as also the learned counsel for the first respondent. 4. The learned Senior Counsel for the appellant contended that the findings rendered by the courts below that Ext.B1 Will has not been proved by the first defendant is incorrect and unsustainable. The learned Senior Counsel also contended that there are no suspicious circumstances surrounding the execution of Ext.B1 Will which the first defendant is liable to explain. 5. There cannot be any dispute to the proposition that a plea based on a Will cannot be accepted by a court unless the execution of the Will is proved in accordance with RSA No.851 of 2014 3 the provisions contained in Section 68 of the Indian Evidence Act and Section 63(c) of the Indian Succession Act. Section 68 of the Indian Evidence Act reads thus: 68. Proof of execution of document required by law to be attested.--If a document is 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 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied. Section 63 of the Indian Succession Act dealing with the execution of unprivileged Wills reads thus: 63. Execution of unprivileged Wills - Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:- (a) 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. (b) The signature or mark of the testator, or the signature RSA No.851 of 2014 4 of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. - (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 acknowledgement 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. A combined reading of the aforesaid provisions would indicate beyond doubt that what is contemplated by Section 68 of the Indian Evidence Act is that the propounder of the Will shall prove the execution of the Will as provided for under Section 63 of the Indian Succession Act. In **Janki Narayan Bhoir v. Narayan Namdeo Kadam** (AIR 2003 SC 761), the Apex Court held that the execution of a Will cannot be proved by proving that the signature on the Will is that of the testator, but it shall also be proved that the attestations were also made properly as required by clause (c) of Section 63 of the Indian Succession RSA No.851 of 2014 5 Act. Section 63(c) of the Indian Succession Act indicates that the Will shall be attested by at least two witnesses, each of whom has seen the testator signing or affixing his mark to the Will or has received from the testator a personal acknowledgement of his signature or mark and each of the witnesses shall sign the Will in the presence of the testator. Coming to the facts of the present case, though both the attesting witnesses have stated before court that they have attested the Will executed by the testatrix, they have not stated that they have subscribed their signatures in the Will in the presence of the testatrix. In the absence of any evidence as to the attestation of the Will in the presence of the testatrix, it cannot be said that the execution of Ext.B1 Will has been proved by the propounder. 6. As observed by the courts below, it is the duty of the propounder of the Will to explain to the satisfaction of the court all suspicious circumstances surrounding the execution of the Will. It has come out in evidence that the first defendant was employed at Bangalore and he used to visit his home only RSA No.851 of 2014 6 occasionally. It has also come out in evidence that his family was residing near the residence of the plaintiff till 2004. It has further come out in evidence that until the death of the testatrix in the year 2000, she used to stay at the residence of the plaintiff during day hours and she used to give company to the wife of the first defendant at night. It is, therefore, clear that the testatrix was maintaining a very cordial relationship with both the plaintiff as also the first defendant. There is nothing on record to indicate that the relationship between the testatrix and the plaintiff had strained at any point of time. There is, therefore, no reason for a person like the testatrix to exclude the plaintiff who is none other than her daughter from inheriting her property. Ext.B1 Will is a document executed on 25.9.1995. There is no dispute to the fact that on the date of Ext.B1 Will, the daughter of the plaintiff got engaged in a function took place in the residence of the plaintiff. While giving evidence as DW1, the first defendant was not in a position to say as to whether the testatrix had attended the engagement function took place in the residence of the plaintiff on 25.9.1995. At one RSA No.851 of 2014 7 place, he stated that she might not have attended and at another place, he stated that she has not attended. The specific case of the plaintiff is that the testatrix was very much there at her home on the relevant day attending the auspicious function took place in the house. The testatrix was aged 65 years at the time of execution of Ext.B1 Will. There is nothing on record to indicate as to who took the testatrix on the said day to the Sub Registry which is located about 12 kms. away from her residence for the purpose of executing Ext.B1 Will. There is also nothing on record to indicate as to who instructed the document writer who prepared Ext.B1 Will to prepare a document of that nature for registration. There is also nothing on record to indicate that the testatrix was a person who was capable of managing the execution of a document in the nature of a Will on her own. DW2 who is an attesting witness to Ext.B1 Will is a relative of the wife of the first defendant. DW3, the other attesting witness to Ext.B1 Will is a stranger and a person belonging to a different religion. From the evidence of DW3, it is clear that he is a person who is engaged in witnessing the RSA No.851 of 2014 8 execution of documents in the Sub Registry concerned. Though the plaintiff has disputed the signature of testatrix as contained in Ext.B1, the first defendant has not taken any steps to prove that the signatures contained in Ext.B1 are put by the testatrix, either through an expert evidence or by producing contemporaneous documents containing the signature of the testatrix. It is in the said circumstances that the courts below came to the conclusion that the propounder of Ext.B1 Will, namely, the first defendant has not explained all the suspicious circumstances surrounding the execution of the Will. Above all, the question as to whether the propounder has explained the suspicious circumstances surrounding the execution of Ext.B1 Will is a pure question of fact. In the circumstances, I do not find any merit in the contention raised by the learned Senior Counsel for the appellant that there are no suspicious circumstances surrounding the execution of Ext.B1 Will for the first defendant to explain. In the result, there is no merit in the second appeal and the same is accordingly dismissed. All the interlocutory RSA No.851 of 2014 9 applications in the appeal are closed. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** tgs (true copy)