Vimala Felix alias Vimala Gracy v. Sosamma Babu alias Rosa and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY, THE 30TH DAY OF JULY 2019 / 8TH SRAVANA, 1941** ## **RSA.No.926 of 2009 (B)** **AGAINST THE DECREE & JUDGMENT DATED 08-04-2009 IN AS No.14/2008 of VI ADDITIONAL DISTRICT COURT, ERNAKULAM** **AGAINST THE DECREE & JUDGMENT DATED 31-10-2007 IN OS No.380/2006 of II ADDITIONAL SUB COURT, ERNAKULAM** ## **APPELLANT/APPELLANT/PLAINTIFF:** **VIMALA FELIX ALIAS VIMALA GRACY, KOCHUTHURUTHEL, CHANDIROOR P.O., CHERTHALA.** **BY ADV. SRI.G.S.REGHUNATH** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** - **1 SOSAMMA BABU ALIAS ROSA, AGED 57, W/o BABU, KALITHARA, AROOR P.O., CHERTHALA.** - **2 THOMAS XAVIER, KOMARANCHATH, AGED 55, JETTY ROAD, VADUTHALA P.O., KOCHI.** - **3 GEORGE XAVIER, S/o XAVIER, AGED 48, JETTY ROAD, VADUTHALA P.O., KOCHI.** - **4 ALOSIOUS XAVIER, S/o XAVIER, AGED 46, JETTY ROAD, VADUTHALA P.O., KOCHI.** - **5 BATTUS XAVIER, S/o XAVIER, AGED 46, JETTY ROAD, VADUTHALA P.O., KOCHI.** - **6 MARYKUTTY GEORGE, AGED 30, ILLIPPARAMBIL HOUSE, No.5/520B, THAMARASSERY ROAD, EDYAKUNNAM P.O., SOUTH CHITTOOR, COCHIN-27.** - **7 SEENAMMA MATHAI, W/o MATHAI, AGED 40, VADASSERIL HOUSE, KOONAMMAVU P.O., KOCHI.** - **8 BEENA AUGUSTINE, AGED 45 YEARS, W/o AUGUSTINE, KOMARANCHATH, JETTY ROAD, VADUTHALA P.O., KOCHI.** - **9 PRABHA AUGUSTINE, AGED 23, D/o AUGUSTINE, -DO- -DO10 PRAVEEN AUGUSTINE, AGED 23, S/o AUGUSTINE, -DO- -DO-** R.S.A.No.926 of 2009 2 **R2,3,4,5,8,9,10 BY ADVS.SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30.07.2019. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.S.A.No.926 of 2009 3 ## **JUDGMENT** A suit for partition by the plaintiff ended in dismissal in both the Courts below against which the plaintiff came up with this appeal. 2. Five items of properties were scheduled in the suit. The plaintiff is the daughter of Xavier and Annamma. Defendants 3, 4, 5 and 8 to 10 filed a joint written statement contending that the father and mother, Xavier and Annamma, during their life time had executed a registered Will No.67/111, Exhibit B1, dated 08.04.1996. Subsequently in the year 2003, the father alone after the death of mother executed a registered Codicil No.197/03, Exhibit B2, by which the entire plaint items were bequeathed to their children by giving separate plots, except the item No.5 which was given in common to the male children of deceased testator and testatrix. The suit was dismissed by both the Courts below. Aggrieved by the said decree and judgment, the plaintiff came up with this appeal. 3. Various questions were taken up by the learned counsel for the appellant regarding the competency of the testators, compliance of requirement as mandated under Section 63 of the Indian Succession Act, the evidenciary value of factum of registration, duty cast on the R.S.A.No.926 of 2009 4 propounder to dispel suspicious circumstance attached to execution by relying on the decision drawn in **Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao & Ors [AIR 2007 SC 614], B. Venkatamuni v. C.J. Ayodhya Ram Singh & Ors [AIR 2007 SC 311], Adivekka and Others v. Hanamavva Kom Venkatesh (Death) by Lrs and Another [(2007) 7 SCC 91], Smt. Jaswant Kaur v. Smt. Amrit Kaur and others [(1977) 1 SCC 369], Apoline D'Souza v. John D'Souza [AIR 2007 SC 2219], Raveendran Nair v. Raman Nair and Others [2019 (2) KHC SN 7 (Page No.13)], Janardhanan v. Jayachandran and Others [2019 (2) KHC 608],** besides some of the infirmities crept in the Will regarding inclusion of certain properties which were earlier given to the plaintiff and her two sisters Mariamma and Seena Rose and also inclusion of some of the property belonged to the brother of testator. All these questions were raised and answered by both the Trial Court and the First Appellate Court by rendering a concurrent finding that the propounder has established due execution of Exts.B1 and B2 and dispelled suspicious circumstance attached to its execution. Consequently the suit was dismissed. 4. Regarding the mandate under Section 63 of the Indian Succession Act and the proof of respective Will and R.S.A.No.926 of 2009 5 Codicil, it was submitted by the appellant that mere registration cannot be substituted in the place of proof. There may not be any quarrel on the legal position that the mere fact that the document – the Will or Codicil was registered will not itself constitute proof of due execution. But the fact that the document was executed and registered is one of the factor to be considered in proof of due execution of the document in compliance with the requirement under Section 63 of the Indian Succession Act. In the present case, Ext.B1 is the registered Will. Two attesting witnesses were examined in order to prove its due execution as DW2 and DW3. Both of them are in agreement with the requirement as mandated under Section 63 of the Indian Succession Act and speak about the execution of the document by both the testator and testatrix as early as in the year 1996 and the affixture of signature by attesting witnesses two in number. Nothing was brought out to discredit their evidence. On the other hand, the first attesting witness being a Priest attached to the church and the second attesting witness being an Advocate, their evidence cannot easily be discarded. Both the Courts below found that the oral evidence tendered by DW2 and DW3 are reliable and cannot be rejected, hence the same deserves no R.S.A.No.926 of 2009 6 interference, being a finding on fact. 5. Both of them had deposed in tune with what is required under Section 63 of the Indian Succession Act and that both the testator and testatrix were mentally capable of taking a rational judgment as they were having sound disposing state of mind. It has also come out in evidence that subsequently they went abroad. No scrap of paper was produced to show any ailment attached to these two persons. In fact, there is no much dispute regarding the mental capability of these two persons. The Priest, DW2, had also deposed about the healthy mental condition of both the testator and testatrix. The subsequent execution of a Codicil, if it is proved, would also support the due execution of Will by the testator and testatrix. 6. Inclusion of some of the properties earlier given to the daughters in a subsequent Will, may be for the purpose of showing that sufficient properties were given to the daughters, may not itself constitute a suspicious circumstance attached to its execution. In the instant case, three properties earlier given to the daughters also included in the Will, and it was not given to any other person, but shown as the properties given to the respective daughters. It cannot be taken as a suspicious circumstance R.S.A.No.926 of 2009 7 attached to its execution, when it is capable of giving a proper explanation as to why it was again included in the Will. If the testator and the testatrix intended to show the earlier deposition to the daughters, by including the very same properties to the share of daughters, it can only be construed as revealing their intention to give the other properties to the sons by showing what is already given to the daughters. When there is a proper explanation, as discussed above, which is found to be acceptable, the same cannot be brought under the purview of suspicious circumstance. 7. Another property covered by an earlier gift Ext.A4, also included as the property given to Mariamma, one of the daughters. It is having an extent of 18.5 cents. Though an argument was advanced that it was really belonged to the brother of testator, it was rejected by both the courts below. 8. Ext.B1 is a type-written Will. The mere fact that the Will was prepared as type-written itself will not constitute a suspicious circumstance though it may be a suspicious circumstance when the Will is otherwise shrouded by vitiating circumstances. No evidence was adduced by the propounder in order to show under what circumstance it was R.S.A.No.926 of 2009 8 prepared as type-written and who had prepared it. As discussed earlier, it cannot be readily accepted as suspicious circumstance when the Will is proved in accordance with the mandate under Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act. The mere fact that Will was written and prepared as typewritten alone would not constitute a suspicious circumstance. What is relevant is the compliance of requirement under Section 63 of Indian Succession Act and the Will should be proved in accordance with the mandate under Section 68 of the Indian Evidence Act. The respective role to be played by the witness competent to depose regarding due execution of a Will was summarized by this Court in **Gopinathan Nair Maheswaran Nair v. Madhavi Amma Nirmala Bai and Others [2019 (3) KHC 950]** and laid down the legal proposition in the following lines: _“6. Normally, as far as a testamentary succession - Will or Codicil, is concerned, there can be three set of witnesses viz.,1) attesting witnesses 2) the scribe 3) the person or the document writer who prepared the draft. Only attesting witnesses alone were brought under the mandate of Section 63 of Indian Succession Act and their evidence alone brought under the relevancy of Section 68 of Indian Evidence Act, though the other two set of witnesses viz., the scribe and the person or the document writer who prepared the draft may have their own_ R.S.A.No.926 of 2009 9 _roles to play by virtue of succeeding sections of Section 68 of Indian Evidence Act, in the matter of proof and execution of a Will or Codicil. The mandate under Section 63 of Indian Succession Act is not amenable for any kind of relaxation, even substantial compliance may not be sufficient. Regarding proof, the succeeding sections to Section 68 of the Indian Evidence Act would come into play when there is non-availability of any of the attesting witnesses for examination in proof of execution of Will or Codicil. There is no role to be played, in the discharge of mandate both under Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act for any witness other than the attesting witness, though the evidence of scribe or the person who prepared the draft may have some relevancy in the matter of testing the reliability of attesting witnesses who were summoned in proof of due execution of document of testamentary succession, apart from the role to be played under the succeeding sections of Section 68 of Indian Evidence Act.”_ When the Will was proved through attesting witnesses and suspicious circumstance attached to its execution was dispelled, the question whether it was a hand written or type-written would pale into insignificance. 9. DW4 was examined to prove due execution of codicil. But no evidence adduced to show the compliance of mandate under Section 63 of Indian Succession Act - attestation by two witnesses. He did not say anything about the other R.S.A.No.926 of 2009 10 attesting witness to the codicil or he had seen the other attesting witness or his affixture of signature as an attesting witness to the codicil. No question was put up at the time of examination of DW4 in that behalf and no answers were elucidated. But it will not affect the bequeath under original Will, unless there is deviation or alteration by way of a codicil. A plan was annexed with Ext.B2 codicil showing the location of property given under Ext.B1 Will. The properties given to the daughters were also shown in the plan. The plan was prepared with respect to item Nos. 1 to 4 properties. Item No.5 was exclusively given to the male children excluding female children. Since there is no material deviation by way of a codicil under Ext.B2, it will not defeat the earlier bequeath under Ext.B1 Will. The concurrent findings rendered by both the courts below hence deserves no interference. No substantial question of law involved in the appeal. Appeal dismissed. No costs. ## **Sd/-** ## **P.SOMARAJAN** DMR/- ## **JUDGE**