Vishnumoorthy Holla v. Purushothama Holla and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` MONDAY, THE 18[TH] DAY OF DECEMBER 2023 / 27TH AGRAHAYANA, 1945 ``` ## **`AS NO. 186 OF 2003`** ``` AGAINST THE ORDER/JUDGMENT DATED 30.09.1997 IN OS NO.154 OF 1992 OF ``` ``` SUBORDINATE COURT, HOSDRUG ``` ## **`APPELLANT/PLAINTIFF:`** ``` VISHNUMOORTHY HOLLA, S/O.KRISHNA HOLLA, RESIDING AT PUTHUMANA, MANGALAMOOLA, HIDAYATH NAGAR, MADHUR VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT. BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.) SRI.P.B.KRISHNAN ``` ## **`RESPONDENTS/DEFENDANTS:`** - **`*1 PURUSHOTHAMA HOLLA, S/O.KRISHNA HOLLA, RESIDING AT KOTTAPARA, KANHANGAD VILLAGE AND POST HOSDURG TALUK. (DIED)`** - **`*2 THUNGAMMA, D/O. AND WIFE OF NARASIMHA KARANTHA, RESIDING AT PACHANDI VILLAGE, BANDWAL P.O., MANGALORE, KARNATAKA STATE. (DIED). IT IS RECORDED THAT THE APPELLANT AND THE THIRD RESPONDENT ARE THE LEGAL REPRESENTATIVES OF DECEASED RESPONDENTS 1 & 2 VIDE ORDER DT. 1/02/05 ON APPEAL MEMO.`** - **`3 RAMACHANDRA HOLLA, S/O.DO. RESIDING AT MARKADA VILLAGE, KUNJATHUBAIL POST, MANGALORE, KARNATAKA STATE.`** - **`4 KRISHNA K., S/O.DO. RESIDING AT PLOT NO.20, VELAVAN NAGAR, KALATHUR, MADRAS- 99.`** - **`5 SHARADA K., D/O.DO. AND WIFE OF ANANTHA KARANTHA, RESIDING NEAR SHANKARANARAYANA TEMPLE, KOLIYOOR VILLAGE AND POST, KASARAGOD TALUK.`** - **`6 K.NARAYANA AMBRANDRI, S/O.DO., SHANTHIKARAN, RESIDING AT KANANTHARA CHITILANCHARY POST, PALAKKAD DIST., PIN - 678 704.`** - **`*7 SEETHAMMA, W/O.LATE KRISHNA HOLLA, RESIDING AT CHITTAYIKKOTT, THAYANNUR VILLAGE AND POST, HOSDRUG TALUK. (DIED) IT IS RECORDED THAT R7 DIED AND R4 AND 5 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED R7, VIDE ORDER DT. 6/1/03 IN MEMO CF 15164/02 DT. 18/12/12.`** - **`8 GOWRI ANTHARAJANAM,W/O.DO., C/O.DR.M.N.BHAT, K.M.DODDY, BHARATHI NAGAR, MANDYA - 571 422, KARNATAKA STATE.`** - **`9 LALITHA ANTHARJANAM, W/O.VENKATRAMANA, RESIDING AT CHITTAYIKODE, THAYANNUR VILLAGE AND POST, HOSDRUG TALUK, KASARAGOD DISTRICT. R9 BY ADV SRI.KODOTH SREEDHARAN`** ``` THIS APPEAL SUIT HAVING COME UP FOR ADMISSION ON 16.02.2021, THE COURT ON 18.12.2023 DELIVERED THE FOLLOWING: ``` ``` AS.No.186 OF 2003 ``` ``` 2 ``` ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - - ## A.S. No. 186 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of December, 2023 This appeal is originated from a judgment passed by the Court of Subordinate Judge of Hosdurg in O.S. No.154/1992 on 30.09.1997. Vide the judgment abovementioned, O.S. No.154/92 filed by the plaintiff seeking for recovery of possession and partition was dismissed by the Sub Court. 2. The facts of the case in brief are to the following effect : One Mr. Krishna Holla, an agriculturist, who was a native of Kanjagad Village of Hosdurg Taluk had executed a registered will on 06.07.1991 in respect of the properties described in plaint B schedule which belong to him and in his absolute possession and enjoyment, in favour of the defendant No.9 in the Suit. He died on 10.08.1991. On the impression that he died intestate, the plaintiff as well as defendant Nos. 1 to 8 who are his legal heirs have filed a suit stating that the plaintiff and defendant Nos. 1 to 8 are co-owners of the properties belong to him and the plaintiff and defendant Nos. 1 to 6 are entitled to get 1/8[th] share each and ``` AS.No.186 OF 2003 ``` ``` 3 ``` defendant Nos. 7 & 8 together are entitled to get remaining 1/8[th] share. It was also averred that defendant No.9 Lalitha Antharjanam who was working as a Cook of Sri.Krishna Holla and permitted to reside in plaint E schedule house, continued to reside there alongwith Seethamma (7[th] defendant) who is none other than the widow of one Mr.Krishna Holla. She has no manner of right over the property held by Krishna Holla, but gradually she reduced the properties scheduled as B, to her illegal possession. The plaintiff alongwith some of the defendants caused a registered notice to be issued to defendant No.9 demanding her to surrender possession of the properties held by her. Reply notice was sent by defendant raising false contentions that a Will was executed by Mr.Krishna Holla on 06.07.1991, which came into force on his death on 10.08.1991 and on the strength of it, possession of the property was held and enjoyed by her. It was learnt by the plaintiff and other defendants that the alleged Will came to be executed by Mr.Krishna Holla by fraud, undue influence and coercion by defendant No.9, so as to defeat the rights of his legal heirs. It was urged that Mr.Krishna Holla was not in a sound disposing state of mind at the relevant ``` AS.No.186 OF 2003 ``` ``` 4 ``` time when the alleged Will was executed, that it did not come into effect as it was not acted upon, that it was not binding on the plaintiff and defendant Nos. 1 to 8 and that Chittayikkot Bhagavathy Devaswom in whose favour the properties were bequeathed by the Will being inexistent during during the life time of Mr.Krishna Holla, is void. It was also averred that the Will was falsely created by defendant No.9 and she being in unlawful possession of the plaint schedule properties is liable to pay future mesne profits to the plaintiff and defendant Nos.1 to 8. According to the plaintiff, she no longer intended to continue as a co-owner alongwith defendant Nos.1 to 8. In the said circumstances, seeking for a decree directing defendant No.9 to surrender plaint B schedule properties to pay mesne profits for the last three years and future and for a decree for partition, the Original Suit was filed. Defendant Nos. 1 to 8 did not file any written statement in the Suit. 3. Defendant No.9 filed a written statement contending that items 1 to 9 of the plaint B schedule properties belonged to late Krishna Holla in absolute Jenmam right and he was in possession of the same until his death, that the property has ``` AS.No.186 OF 2003 ``` ``` 5 ``` never devolved upon the plaintiff and defendant Nos. 1 to 8, who co-owners in respect of the plaint schedule properties, that Krishna Holla had executed a registered Will on 06.07.1991, that as per that Will the properties devolved upon Chittayikkot Bhagavathy Devaswom, that the defendant No.9 is entitled to hold possession of items 1 to 9 of B schedule properties for and on behalf of Chittayikkot Bhagavathy Devaswom, that defendant No.9 and her three children were authorised to collect usufructs from the properties as well as to perform the ceremonies including Daivam Kettu, Ari vitharal, Bhagavathy Seva, Ganapathi Homam, Padithara Adiyanthiram and daily rituals like adichu thali and ‘deepam vakkal’ on behalf of late Krishna Holla after his death. The Will also stipulates that the income left after meeting the expenditure for the ceremonies and performances aforestated, it also shall be utilised by defendant No.9 for maintaining herself and her three children. Thus, after the death of Mr. Krishna Holla on 10.08.1991 and after the Will came into effect and was acted upon in accordance with the terms it carry, items 1 to 9 of B schedule property got devolved upon Chittayikkot Bhagavathy Devaswom. The averment of the ``` AS.No.186 OF 2003 ``` ``` 6 ``` plaintiff that defendant No.9 was a Cook was denied. Defendant No.9 was contended as the niece of Mr.Krishna Holla, who was residing in his house itself to look after and take care of him. She also started to perform the rituals and ceremonies as directed by the testator in the Will. Funeral ceremonies were also conducted defendant No.9. 'Palliyara' of the Devaswom was also renovated by her. It was contended that during the lifetime of Mr.Krishna Holla, he was completely neglected and deserted by the plaintiff and defendant Nos. 1 to 8 in the absence of anyone to look after his affairs, she being his sister’s daughter was brought to his house to look after him by staying in his house. Accordingly, defendant No.9 started to reside with Mr.Krishna Holla, who was her uncle, since 25 years. 4. The Original Suit was tried before Subordinate Judges Court, Hosdurg. The plaintiff and one Mr.Chandran were examined as PWs 1 and 2 and Exts.A1 to A6 were marked. DWs 1 to 5 were examined and Exts.B1 to B5 and Exts.C1 to C3 were marked on the side of the defendants. On appreciation of the evidence on record, Subordinate Judges Court, Hosdurg found defendant No.9, not liable to surrender possession of plaint B ``` AS.No.186 OF 2003 ``` ``` 7 ``` schedule property and consequently, the property not liable to be partitioned among the legal heirs of Late Krishna Holla. Aggrieved thereby, the plaintiff is now before this Court in the appeal on hand. 5. Sri.P.B.Krishnan, the learned counsel for the appellant raised three points for consideration of this Court. First point was against the genuineness of the Will which was marked in evidence as Ext.B1. The second point of argument was centered on Section 112 of the Indian Succession Act. It is contended that the Chittayikkott Bhagawathy Devaswom referred to in Ext.B1 being non-existent even prior to the execution of Ext.B1 itself as revealed from the evidence on record, is void. The third point of argument was that what is dedicated under Ext.B1, is not a public temple having legal entity and therefore, it is not liable to be bequeathed. 6. An argument that since the word under reference in Ext.B1 being Devaswom, the bequeath alleged cannot be taken as in favour of a deity. According to him, the word Devaswom means a group of people administering a temple and not a deity consecrated there. It is contended by the learned counsel that a ``` AS.No.186 OF 2003 ``` ``` 8 ``` dedication in favour of a public temple alone is authorised by law and in the absence of any evidence to show that a temple having public access was there for the purpose of worship, the bequeath as per Ext.B1 would only be treated as void in view of Section 112 of the Indian Succession Act. According to the learned counsel, the evidence on record would make it clear that dedication if any was there in favour of Chittayikkot Bhagavathy Devaswom, which was in existent at the time of execution of Ext.B1 or even prior to the death of Krishna Holla, the testator, Ext.B1 is not liable to be acted upon by defendant No.9 as contended by her. When Ext.B1 is void, the reliefs sought in the Suit viz surrender of possession of the properties scheduled in the plaint by defendant No.9 and partition of the same among the plaintiff and defendant Nos. 1 to 8 are only to be granted. 7. Per contra Sri.Sreedharan Kodoth, the learned counsel for defendant No.9 has contended that Devaswom refers to a Deity itself and it cannot be assigned with a different meaning to hold that it is only an institution formed to administer a temple. According to him, the recitals in Ext.B1 when read as a whole, would indicate that there was a consecration of deity in ``` AS.No.186 OF 2003 ``` ``` 9 ``` Chittayikkot Bhagavathy temple where rituals and ceremonies have been performed by Mr.Krishna Holla during his life time. According to him, absolutely no basis is there in the contention of the learned counsel for the appellant that a deity was not there and the alleged place where the rituals and ceremonies have been conducted can only be treated as a private temple, but in view of the access given to the public to participate in rituals performed there and to worship the deity, it can be taken to have the status of a public temple. According to him, in a temple, there is no necessity that an idol must be there for worship. It is contended by the counsel that the custom prevalent in the place is decisive of the object of worship there and even a “Theyyem” referred by a witness of the plaintiff when treated as an object of worship in a temple it will be a deity. The belief of the people that makes an object the subject matter of worship. It is also contended by the learned counsel that intention of the testator that matters and since a dedication of the properties in favour of a deity which was worshiped by the testator during his lifetime being there, a doubt about validity of Ext.B1 cannot be raised. It is reiterated, the contention that Ext.B1 is a void document is ``` AS.No.186 OF 2003 ``` ``` 10 ``` totally devoid of any merits. Accordingly, it was contended that the prayer for surrender of properties by defendant No.9 and the partition sought for are not liable to be granted in favour of the plaintiff. According to him, the appeal is only liable only to be dismissed. 8. According to Sri.P.B.Krishnan, Chittayikkot Bhagavathy Devaswom recited in Ext.B1 is a fictitious person and that factum is well evidenced from Exts.C1 and C2 where the Advocate Commissioner reports that any idol of the Bhagavathy or remnants of a structure constituting a temple was not found there during his visit. As reported by the Advocate Commissioner, a new structure was found, which was informed by DW1 at the time of his visit of the premises, as a new temple under construction in the place of the old palliyara existing there. 9. The commissioner's first visit of the premises was on 25.01.1993. The execution of Ext.B1 was proved through oral evidence of it’s scribe, attestors and DW1 who was permitted by the Will to get the poojas, sradhas and other rituals of the temple performed at appropriate times as were done during the lifetime of the testator and to meet the expenses for maintenance of ``` AS.No.186 OF 2003 ``` ``` 11 ``` herself and family members from the income derived from the property after meeting the expenses for the observances aforestated. 10. The learned counsel pointedly argued based on the evidence brought on record during cross examination of Kunjinarayanan and Sreedharan that Krishna Holla visited the house of Sreedharan on a day preceding the date on which Ext B1 was allegedly drafted by the scribe. According to the learned counsel DWs 3 and 4 also corroborate on that aspect. But, DW1 has spoken that the service of the scribe (DW2) was procured by Mr.Krishna Holla through DW3. According to the learned counsel, which is to be relied on in the context is doubtful. According to him, if the version of DWs 3 and 4 that Krishna Holla went to the house of DW3 for securing his help to bring DW2 to his house for preparation of Ext.B1 is believed, then the doubtful aspect remains is why Mr.Krishna Holla, a man capable to travel, sought the service of DW2 and the registrar respectively for preparation of Ext.B1 and its registration, though the Registrar's office is evidenced as situated only a short distance away. Accordingly, it was contended that Mr.Krishna Holla can only be ``` AS.No.186 OF 2003 ``` ``` 12 ``` taken as a man incapable to travel to the Registrar's office to get the registration of Ext.B1 done there. According to the learned counsel if that be so, the versions of DWs 3 and 4 cast some doubt and cannot be believed at all. The credibility of their version would further be lost, when viewed in the backdrop of the version of DW1. The learned counsel urged in the above context that Mr.Krishna Holla was not in a sound physical and mental condition to execute Ext.B1 voluntarily. The upshot of the argument was that Ext.B1 was not a validly executed document and cannot be relied on. 11. To support his argument, Exts.C1 and C2 were also relied on, where the Advocate Commissioner has reported precisely that remnants of the so called Palliyara as recited in Ext.B1 and allegedly constructed by Mr.Krishna Holla 30 years back and maintained during his life time for worship was not found during his visit of the premises. According to the learned counsel, the Chittayikkott Bhagavati and the Palliyara where the poojas and rituals for the said Bhahagawati were performed by Mr.Krishna Holla during his life time were fictitious creations of DW1 and her allies, only to get unduly benefited from the ``` AS.No.186 OF 2003 ``` ``` 13 ``` properties of Mr.Krishna Holla who died intestate, in total negation of his near and dear ones who stand in the pedestal of his legal heirs. It is contended by the learned counsel that when the evidence of the Advocate Commissioner is clear about the absence of an idol namely 'Chittayikkott Bhagawathi' and any remnants of the so called 'Palliyara' where it was allegedly existing, there was none to receive the bequest as a beneficiary under Ext.B1. According to him, the bequest as per Ext.B1 was made to a deity of the above description and it being in-existent at the time of the death of the testator, the bequest undoubtedly is void. 12. It is also contended by the learned counsel that during cross examination DW1 has admitted the object of worship as Theyyam and therefore, it is clear that a deity was not worshiped there. He has relied on Articles downloaded from the internet to substantiate that ‘Theyyam’ is only an artistic performance of certain parts of Kerala and it actually is not a God or deity in itself, but only a means to God. 13. According to the learned counsel, for a bequest to be valid, there must be a beneficiary to receive the endowment. ``` AS.No.186 OF 2003 ``` ``` 14 ``` According to him, an idol or an image depicting an idol, cannot be a beneficiary of religious endowments. According to him, only when it is installed in a place where public is given access to worship, it will gather the colour and character of a public temple. According to him, DW1 failed to establish by evidence that the Palliyara referred to in Ext.B1, even if assumed as existing at the relevant time when the alleged bequest was made by Mr.Krishna Holla was having access to public for worship. According to the learned counsel, Ext.B1 is defeated on that count also. Raising contentions as above, the learned counsel urged for treating Ext.B1 as a void document and to hold that the trial court is unjustified and erred in declining the prayer of the plaintiff for partition of the immovable properties of Mr.Krishna Holla, who died intestate. According to the learned counsel, the appeal deserves to be allowed and the judgment under challenge, reversed. 14. Sri. Sreedharan Kodoth, the learned counsel for the respondent contended on the contrary that the arguments advanced by the learned counsel for the appellant are devoid of any basis and the finding of the trial court being a well ``` AS.No.186 OF 2003 ``` ``` 15 ``` considered and justified one, only deserves to be confirmed. According to him, the witnesses examined by the defendant before the trial court were categoric and consistent on their stand and nothing was brought out to disbelieve them. According to him, a stone was shown to the Advocate Commissioner at the time of his visit and was explained to him by DW1 that it depicts the remnant of the Palliyara where Mr.Krishna Holla was allegedly performing the rituals and ceremonies of worship. The temple was constructed following the advice of some religious personnel and when the work of construction was started, a sword which was maintained there for worship was shifted to her house. According to him DWs 3 and 4 examined on his side were local people and they categorically deposed about existence of a ‘Palliyara’ in the property belonging to Krishna Holla. They had also spoken that plaintiff and defendant Nos. 2 to 8 did not take care of Krishna Holla during his lifetime. Plaintiff had also stated before the trial court during examination that DW1 was the niece of Mr.Krishna Holla, brought by him to his house at her age of 15, for the reason firstly that her parents were mad and secondly that there was none to take care of Mr.Krishna Holla who ``` AS.No.186 OF 2003 ``` ``` 16 ``` abandoned then by his wife and children. According to him, DW1 had been cooking food and making hot water for Mr.Krishna Holla since the time she was brought to the house. According to him, as per the recitals in Ext.B1, scheduled properties were dedicated to 'Chittayikkott Bhagawathi'. DWs 3 and 4, though confronted on several material aspects, remained consistent in those are only to be believed. They have also spoken that 'Chittayikkott Bhagawathi' was installed at the palliyara for worship, which according to them was a tiled building situated in the plaintiff schedule Property and rituals like 'Theyyam’ were performed there annually during the lifetime of Mr.Krishna Holla and even after his death, when Ext.B1 came into effect. Admittedly, DW4 had been to the palliyara on occasions when Theyyam was performed there. Since the genuineness of Ext.B1 being under challenge, it is relevant to see whether it was proved or not legally. Sections 67 and 68 of the Evidence Act provide for the requirements and nature of the proof required to by a party who relies on to prove it. ``` AS.No.186 OF 2003 ``` ``` 17 ``` ## 15. Section 67 reads : ## “ **67. Proof of signature and handwriting of person alleged to have signed or written document produced** . If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. ” ## 16. Section 68 reads : ## “ **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 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]” 17. The true legal position in the matter of proof of wills has been laid down by Gajendragadkar.J, in **H.Venkatachala Iyengar V. B.N. Thimmajamma and others [(1959) Suppl** ``` AS.No.186 OF 2003 ``` ``` 18 ``` ## **(1) SCR 426]** and the dictum is extracted hereunder ; “ 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 propounding a will or otherwise making a claim under a will is no doubt seeking to 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 s. 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 s. 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 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 ``` AS.No.186 OF 2003 ``` ``` 19 ``` 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 propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will ? Did he understand the nature and effect of the dispositions in the will ? Did he put his signature to the will knowing what it contained ? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by section. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the, prudent mind in such matters.” 18. The executant of the Will cannot be called upon to deny the execution or to explain the circumstances in which it was executed. It is therefore, fundamental that essential, trustworthy and unimpeachable evidence must be produced ``` AS.No.186 OF 2003 ``` ``` 20 ``` before the court to establish that the will sought to be relied on is a genuine and an authentic document. 19. The Apex Court has held in **Kalyan Singh V. Smt.Chhoti and others [AIR 1990 SC 396] at page 402 and 403 and Ram Piari V.Bhagwant [(1990) 3 S.C.J 588]** that apart from the circumstances brought out in evidence or which appear from the nature and contents of the documents, it would also be open to the court to look into the surrounding circumstances as well as the inherent improbabilities of the case to reach a proper conclusion. The dictum reads : “It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of the witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanor. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.” A will is not a compulsorily registrable document but people usually get such documents registered so that authenticity of ``` AS.No.186 OF 2003 ``` ``` 21 ``` such a document will not be challenged at a later date. 21. Section 62 of Indian Succession Act, 1925 is extracted hereunder : “ **62. Will may be revoked or altered:** - A will is liable to be revoked or altered by the maker of it at any time when is competent to dispose his property by will”. 'Onus Probandi' and 'animo attestandi' are two Latin expressions referring to the basic features. It is now a fairly well settled principle that the same lies in every case upon the party propounding the will and he may satisfy the court's conscience that the instrument propounded by him is the last will of a free and capable testator, meaning thereby obviously that the testator at the time when he subscribes his signature on to the will had a sound and disposing state of mind and memory and ordinarily, however, the onus is discharged as regards the due execution of the will, if the propounder leads evidence to show that the will bears the signature and mark of the testator and that the will is duly executed. The attestation, however shall have to be as contemplated under section 68 of the Evidence Act. The provision requires that if a document is required by law to be attested, for ``` AS.No.186 OF 2003 ``` ``` 22 ``` it be used as evidence, at least one of the attesting witnesses has to be called for the purpose of proving it's execution and the same is so, in the context of there being an attesting witness alive and capable of giving evidence. The law is also equally wellsettled that in the event of there being circumstances surrounding the execution of the will, shrouded in suspicion, it is the paramount duty of the propounder to remove that suspicion by leading satisfactory evidence. 22. Bearing the above legal principles in mind, the two points canvassed by Sri.P.B Krishnan, the learned counsel is evaluated in the light of the evidence on record. 23. Contention categorically raised by Sri.P.B.Krishnan, the learned counsel for the appellant was one pertaining to the genuineness of Ext.B1. It was contended furthermore that 'Chittayikottu Bhagawathi Devaswom' being non-existent at the relevant time of testator’s death, Ext.B1 can only be treated as a void document. The sustainability of the contentions are tested in the backdrop of the facts of the case and the evidence on record. 24. A suit for partition of Plaint A schedule was filed by Sri.Vishnumoorthy Holla as plaintiff and the contention ``` AS.No.186 OF 2003 ``` ``` 23 ``` specifically raised by Adv.Krishnan on behalf of the plaintiff was that Sri. Krishna Holla had executed a Will during his lifetime and immediately preceding his death on 10.08.1991. The Will executed is produced and marked in evidence as Ext.B1. By executing it, Sri.Krishna Holla has bequeathed plaint 'B' Schedule properties in favour of 'Chittayikottu Bhagawathi Devaswom' and defendant No.9 was given a right also to maintain her family from the income derived therefrom. 25. Whether Ext.B1 partakes the character of a Will being relevant, the intention of the testator is a material aspect to be looked into. The intention of the testator is something required to be gathered primarily from the language of the recitals it contained. While doing so, it is relevant to have an idea about the circumstances surrounding, the position of the testator, his relationship with his family and the probability for the testator to use the words in Ext.B1 in a particular sense. Those aspects undoubtedly would lend a valuable aid in arriving at a true construction of the Will. Each Will have to be construed based on the terms it incorporate and in the circumstances in which its execution occurred. ``` AS.No.186 OF 2003 ``` ``` 24 ``` 26. The suspicious circumstances pointed to this Court by the respondent firstly was that despite the factum that Sri.Krishna Holla though survived by two wives and many children born in his wedlock, without bequeathing any share in the property in favour of any of them, bequeathed the entire property in favour of 'Chittayikottu Bhagawati Devaswom' and defendant No.9 as its beneficiary. 27. He has deposed that after the Will was scribed, attestation was made by witnesses. It was said that defendant No.9 was the niece and she was looking after him for several years preceding his death. The factum was not disputed neither by the plaintiff nor by the defendants. 28. Defendant No.9 was the niece of the testator. The factum stood established in the case was that the wife of Mr.Krishna Holla was alive at the time of execution of Ext.B1, a provision was not in it left even for her maintenance. In normal course, the wife would be the first person to be considered by a man while proceeding to execute a Will. She should have been the first beneficiary of her husband's bounty unless there was rivalry or embittered feelings between them. The execution of ``` AS.No.186 OF 2003 ``` ``` 25 ``` the Will in favour of defendant No.9 undoubtedly is baffling since it runs counter to our social values. 29. In the case on hand, the learned counsel has raised a strong challenge against the alleged execution of Ext.B1 for the reason of defendant No.9 and her family members are it’s beneficiaries. Twin reasons have been projected to justify the act of the testator to deviate from the normal course of conduct expected from a prudent man to bequeath the immovable properties owned by him to his wife and children. The reason firstly was that Krishna Holla was abandoned by his two wives and children born to them. The reason secondly was that defendant No.9, the hapless daughter of insane parents and niece of Krishna Holla was brought to his house to look after his affairs at her age of 15 years, in his life of solitude. These two circumstances justify the strangeness and imprudence in the conduct of Mr.Krishna Holla while executing the Will. The reasons undoubtedly are cogent ones. 30. A line of argument was also advanced against the will attacking it's genuineness for the reason that it being allegedly dedicated to an idol revered in home is not a juristic person and for being so it must be installed in a public temple. The learned ``` AS.No.186 OF 2003 ``` ``` 26 ``` counsel relied on **Shiromani Gurudwara Prabandhak Committee Amritsar v. Shri.Som Nath Dass and Others (AIR 2000 SC 1421)** to rest his contention, where the Apex Court has held that Guru Granth Sahib will only gain the status of a juristic person on it's installation in a public temple and not when it is revered in home. 31. The question raised in the appeal seized of by the Apex Court was whether 'Guru Granth Sahib' could be treated as a juristic person or not?. The question arose for consideration in a context where a declaration was sought by 56 persons of different villages of Amritsar that the disputed property is a Sikh Gurudwara. 32. The claim raised by one faction was that Sikh Gurudwara is only a Dharamshala and Dera of Udasian being owned and managed by the petitioners and their predecessors since the time of their forefathers and that they being the holders of the same, received the said Dera in succession, in accordance with their ancestral share. They also claimed to be in possession of the land attached to the said Dera. They denied it to be a Sikh Gurudwara. ``` AS.No.186 OF 2003 ``` ``` 27 ``` 33. On the contrary, 'the SGPC' claimed it to be 'Sikh Gurudwara' having been established by the Sikhs for their worship, wherein 'Guru Granth Sahib' was the only object of worship and it was the sole owner of the Gurudwara property. ## 34. The litigation rested on the question whether Guru Granth Sahib is a juristic person or not. “11. The very words “Juristic Person” connote recognition of an entity to be in law a person which otherwise it is not. In other words, it is not an individual natural person but an artificially created person which is to be recognised to be in law as such. When a person is ordinarily understood to be a natural person, it only means a human person. Essentially, every human person is a person. If we trace the history of a “Person” in the various countries we find surprisingly it has projected differently at different times. In some countries even human beings were not treated to be as persons in law. Under the Roman Law a “Slave” was not a person. He had no right to a family. He was treated like an animal or chattel. In French Colonies also, before slavery was abolished, the slaves were not treated to be legal persons. They were later given recognition as legal persons only through a statute. Similarly, in the U.S.the African-Americans had no legal rights though they were not treated as chattel.” ## 35. It was held by the court: “The creator of all is One, the only One. Truth is his name. He is doer of everything. He is without fear and without enmity. His form is immortal. He is unborn and self-illumined, he is realized by Guru' grace.” 29. The last living guru. Guru Gobind Singh, expressed in no uncertain terms that henceforth there would not be any living guru. The Guru Granth Sahib would be the vibrating Guru. He declared that “henceforth it would be your Guru from which you will get all your guidance and answer.” It is with this faith that it is worshipped like a living guru. It is with this faith and conviction, when it is ``` AS.No.186 OF 2003 ``` ``` 28 ``` installed in any gurudwara it becomes a sacred place of worship. Sacredness of Gurudwara is only because of placement of Guru Granth Sahib in it. This reverential recognition of Guru Granth Sahib also opens the hearts of its followers to pour their money and wealth for it. It is not that it needs it, but when it is installed, it grows for its followers, who through their obeisance to it, sanctify themselves and also for running the langer which is an inherent part of a Gurdwara. 30. In this background, and on over all considerations, we have no hesitation to hold that 'Guru Granth Sahib is a “Juristic Person”'. It cannot be equated with an 'Idol' as idol worship is contrary to Sikhism. As a concept or a visionary for obeisance, the two religious are different. Yet, for its legal recognition as a juristic person, the followers of both the religions give them respectively the same reverential value. Thus the Guru Granth Sahib, it has all the qualities to be recognised as such. Holding otherwise would mean giving too restrictive a meaning of a 'juristic person', and that would erase the very jurisprudence which gave birth to it. “ 36. The Apex Court has held so particularly in the backdrop where idol worship is contrary to Sikhism. In a context when a question arose for consideration whether Guru Granth Sahib wherever it is placed is a juristic person, the Apex Court held that only when it is consecrated and installed at a Gurudwara or at such other recognised public place, it will be a juristic person. 37. The view taken as above is confined to the sacred book of Sikhs namely Guru Granth Sahib and cannot be adopted for reliance in the case on hand where challenge is against an idol consecrated in the private property of Mr.Krishna Holla, who is a ``` AS.No.186 OF 2003 ``` ``` 29 ``` Hindu by religion. As far as Hindus are concerned, the installation and adoration of an idol or any image by a Hindu depicting it as a God is merely a mode through which his faith and belief are satisfied and that has led to the recognition of an idol as a juristic person. Here, this Court is inclined to rely on the dictum of the Apex Court in **Ram Jankijee Deities and Others V. State of Bihar and others [(1999) 5 SCC 50]** where it was held that, when a deity having a visible image is consecrated by performing all the requisite ceremonies, it acquires the status of a juristic person. Therefore, the argument of the learned counsel for the appellant that the Chittayikottu Bhagawathi Dewasom is not a deity and for not being consecrated in a public temple is not a juristic person and therefore, the alleged bequeath in favour of it will lost the legal sanctity, is devoid of any merits and is only liable to be discarded. ## 38. The Apex Court held, “16. There may be endowment for a pious or religious purpose. It may be for an idol, mosque, church etc. such endowed property had to be used for that purpose. The installation and adoration of an idol of or any image by a Hindu denoting any God is merely a mode through which his faith and belief is satisfied. This has led to the recognition of an idol as a juristic person.” ``` AS.No.186 OF 2003 ``` ``` 30 ``` ## 39. **Radhakanta Deb and another v. the Commissioner of Hindu Religious Endowments, Orissa** ## **(AIR 1981 SC 798),** it was held by the Apex Court:- “There can be religious trust of a private character under the Hindu Law which is not possible in English law, it is well settled that under the Hindu law it is not only permissible but also very common to have private endowments which though are meant for charitable purposes yet the dominant intention of the founder is to instal a family deity in the temple and worship the same in order to effectuate the spiritual benefit to the family of the founder and his descendants and to perpetuate the memory of the founder. In such cases, the property does not vest in God but in the beneficiaries who have installed the deity. In other words, the beneficiaries in a public trust are the general public or a section of the same and not a determinate body in individuals as a result of which the remedies for enforcement of charitable trust are somewhat different from those which can be availed of by the beneficiaries in a private trust. The members of the public may not be debarred from entering the temple and worshiping the deity but entry into the temple is not as of right. The is one of the cardinal tests of a private endowment. The question as to whether the religious endowment is of a private nature or of a public nature has to be decided with reference to the facts proved in each case an it is difficult to lay down any test or tests which may be of universal application.(emphasis supplied) The following tests may provide sufficient guidelines to determine on the facts of each case whether an endowment is of a private or of a public nature: (1) where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right; (2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large; (3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature; (4) Where the evidence shows that the founder of the endowment did not make any stipulation for offering or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment.” ## 40. It is incumbent on this court in the context to look into ``` AS.No.186 OF 2003 ``` ``` 31 ``` the recitals in Ext.B1 and the evidence on record to see whether the endowment is of a private nature. Firstly this Court has to see whom the testator of Ext.B1 intended to dedicate the bequest. Prior to delving on that aspect, it is ventured to have the recitals in Ext.B1 extracted hereunder:- "എനിക്കിപ്പ ോൾ വാർദ്ധക്യമായതുക ൊണ്ടും മനുഷ്യായുസ ക നിർണയിക്കാൻ സാധ്യമല്ലാത് ൊണ്ടും ഞാൻ സ്വപ്രയത്നംക ൊണ്ട് സമ്പാദിച്ചതായ സ്വത്തുക്കളെ സംബന്ധിച്ച് എൻറെ ജീവ ദശയിൽ തന്നെ ഒരു വ്യവസ്ഥ ചെയ്തു വയ്ക്കുന്നതാണ് നല്ലതെന്നു ഞാൻ സ്വമനസ്സാലെ തീർച്ചപ്പെടുത്തിയ പ്രകാരം ഈ ഒസ്യതത എഴുതിവെക്കാനിട ൊണ വന്നതാണ്. അതുക ട പട്ടികയിലെ സ്വത്തുക്കൾ മുഴുവനും എൻറെ മരണം വരെ ഞാൻ തന്നെ പരിപൂർണ്ണ ക്രയവിക്രയ സ്വാതനത്രധികാരത്തിന്മേൽ അനുഭവിച്ചുവരുവാനും എൻറെ ഷം ് ആവക കാലശേ ബാക്കിയുണ്ടെന്ന കണ്ടാൽ സുഹൃത്തുക്കളുടെ ഉടമാവകാശം ഞാൻ സ്വന്തമായി നിർമ്മിച്ച ് ഭഗവതി ക ചിറ്റായികകോട്ട ദേവസ്വത്തിലേ ലയിക്കേണ്ടതാണന്നും എന്നാൽ ആ വക സ്വത്തുക്കളുടെ മുഴുവൻ കാലാദായം എന്നെ ഇന്നുവരെ ശുശ്രൂഷിച്ചും പരിചരിച്ചും വരുന്നവളും എൻറെ മരുമകളും ഹ ോസ്ദുർഗ് താലൂകക തായന്നൂർ ഗ്രാമത്തിൽ ചിറ്റായി്ക്കോടട എന്ന ദിക്കിൽ രള എൻറെ കൂടെ താമസിക്കുന്നവളും കൃഷ്ണ ഹേ എന്നവരുടെ മകളുമായ 35 വയസ്സുള്ള ലളിതാ അന്തർജ്ജനം അവളുടെ സ്വന്തം നിലയിലും അവളുടെയും വെങ്കിട്ടരാമൻ എന്നാ ളുടെയും മക്കൾ മൈനർമാർ 7 വയസ്സുള്ള 1.ശ്രീ പത്മിനി 5 വയസ്സുള്ള 2. ശ്രീപാണി 3 വയസ്സുള്ള 3. ശ്രീ ലത എന്നിവർക്ക് വേ ണ്ടി രക്ഷിതാവിൻറെ നിലയിലും എടുത്ത് മേൽപ്പറഞ്ഞ ചിറ്റയി്ക്കോടട ഭഗവതി ദേവസ്വത്തിലെയ്ക്ക് വേ ണ്ടി ``` AS.No.186 OF 2003 ``` ``` 32 ``` ക ട ൊല്ലത്തിൽ നടത്തി വരേണ്ട ദൈവം കെ ട, അരിത്രാവൽ, എല്ലാം വർഷവും 12 ദിവസം ഭഗവതിസേ വ ഒരു ദിവസം ഗണപതിഹ ോമം കൂടാതെ പഠിത്തര അടിയന്തിരാദികളും ദിവസേ ന അടിച്ചുതളി ദീപം വെക്കൽഎന്നിങ്ങനെയുള്ള സകല പുണ്യകർമങ്ങളും നടത്തി വരേണ്ടതുമാണെന്നും ഭഗവതിയെ പരിശുദ്ധിയയോടു കൂടി ൊണ പരിപാലിക്കേണ്ടതാണെന്നും ശേ ഷം വരുന്ന തുക ക അവളുടെയും മക്കളുടെയും ഉപജീവന ചിലവ് കഴിച്ചു വരേണ്ടതാണെന്നും ഇതുമൂലം ഞാൻ നിശ്ചയിച്ചിരിക്കുന്നു. കൂടാതെ എൻറെ കാലശേ ഷം ശേ ഷക്രിയ ഉത്തരക്രിയാദികളും വർഷം പ്രതി ചാത്തവും എന്റെ മരുമകളായ മേൽപ്പറഞ്ഞ ലളിത അന്തർജനം അവളുടെ പൂർണ ഉത്തരവാദിത്വത്തിൽ നടത്തി വരേണ്ടതുമാണെന്നും ഇതുമൂലം ഞാൻ നിശ്ചയിച്ചിരിക്കുന്നു.” 41. Therefore, it is clear from the extract above that life interest is created for Krishna Holla and after his lifetime, anything is left, the same has to be devolved on 'Chittayikkott Bhagawathi Devaswom' and the profits derived from the same have to be utilized for performing rituals mentioned in Ext.B1 annually and Smt.Lalitha and her children have to meet their livelihood, from the money left. 42. It is described in Ext.B1 that Mr.Krishna Holla while alive had maintained a Palliyara attached to his house for worshiping 'Chittayikkott Bhagawathi Devaswom' and rituals were ``` AS.No.186 OF 2003 ``` ``` 33 ``` performed there frequently. Ext.B1 was found executed by Mr.Krishna Holla on 06.07.1991. It is clear from the recitals in Ext.B1 extracted above that the bequeath was in favour of **'** Chittayikkott Bhagawathi Devaswom', which is nothing but a deity of Hindu religion. As far as Hindus are concerned, an idol of any nature depicting a deity is inevitable for worship. 43. According to DW1, after the death of Mr.Krishna Holla, Ext.B1 executed by him came into existence and as per that, the bequeath was in favour of 'Chittayikkott Bhagawathi Devaswom' created by himself and worshiped as a deity for whom rituals were performed annually. According to her, it was also recited in Ext.B1 that she has to continue performing the rituals annually after the death of the propounder of the Will and to meet the livelihood of herself and children from the money remaining. As per the recitals she has to perform Bhagawati sewa for 12 days, Ganapati homa for a single day, 'Theyyamkettal', lighting lamp daily and also after death ceremonies of Krishna Holla. According to her, after the death of Mr.Krishna Holla, she had been performing all the above rituals strictly and properly utilising the profits derived from the B scheduled properties. The livelihood of ``` AS.No.186 OF 2003 ``` ``` 34 ``` her family has also been met with through out the years from the profits remaining unspent. According to her, a palliyara was existing during the lifetime of Mr.Krishna Holla wherein Chittayikkott Bhagawathi Devaswom was consecrated for worship and it was expanded at present to form a temple. According to her the Advocate Commissioner has also described the temple in item No.1 of Ext.C1 report prepared by him. Therefore, from the version of PW1 and the recitals in Ext.B1, it is clear that the properties of Krishna Holla were bequeathed in favour of Chittayikkott Bhagawathi, worshiped by him as a deity during his lifetime. 44. The witnesses of PW1 have also spoken about the worship of Chittayikkott Bhagawathi Devaswom as a creation of Mr. Krishna Holla. Therefore, this Court is inhesitant to hold that the recitals in Ext.B1 clearly indicate that it is a bequeath by Mr.Krishna Holla in favour of a deity namely 'Chittayikkott Bhagawathi Devaswom'. 45. Then the question relevant for consideration is whether Ext.B1 is a genuine one executed by Krishna Holla voluntarily during his lifetime. According to PW1 Krishna Holla ``` AS.No.186 OF 2003 ``` ``` 35 ``` was capable to walk, but he directed Kunjiraman to call the Registrar to his house stating that such a practice is there. It was brought out by defendant in cross examination of PW1 that the recitals in Ext.B1 was read over to him by one Mr.Mohandas and the signature was affixed by Krishna Holla after having convinced of the contents. 46. The specific allegation raised by defendant against was that the execution of the will is vitiated by fraud, undue influence and coercion. According to PW1, Mr.Krishna Holla was not in a sound disposition of mind at the time when the will was allegedly executed and therefore it was a void document and not binding on the plaintiff and defendant Nos. 1 to 8. 47. Defendant Nos. 2, 3, 4, 5, 6,7 and 8 remained ex parte and defendant No.1 did not choose to file a written statement. Defendant No.9 was the only contesting party. The further contention was that the will has never come into effect. 48. The plaintiff though had conferred defendant No.9, the status of a maid of Mr.Krishna Holla, it has come out in evidence that she was his niece and was brought by him to his house in the absence of anyone to look after him. Two wives of Mr.Krishna ``` AS.No.186 OF 2003 ``` ``` 36 ``` Holla and children abandoned him and the wife predeceased him. The children started residing elsewhere. PW1 has stated assertively that Mr.Krishna Holla had executed Ext.B1 not in a sound disposition of mind and therefore, ought to have been considered as a document created by defendant No.9. 49. Since the genuinenesses and correctness of Ext.B1 was disputed, the burden is heavily upon the propounder to dispel all the suspicious circumstances and to establish that it was validly executed by him. When it stood proved, the onus will be shifted to the opposite party to establish the vitiating elements which would render it void. 50. To establish that Ext.B1 was a validly executed Will by Mr.Krishna Holla, the scribe of the Will was examined as DW2 and the witnesses attesting it as Dws 3 and 4. The witnesses have a consistent say on the circumstances in which DW1 was brought to Mr.Krishna Holla's house. According to them, DW1 was brought there to the house of Mr.Krishna Holla at his old age to take care of him and to attend his needs. PW1 has also conceded that factum during the course of examination. PW2, a witness of PW1 had also gave a version strictly supporting that aspect. Though a ``` AS.No.186 OF 2003 ``` ``` 37 ``` plea was taken by plaintiff that one of the wife of Mr.Krishna Holla (Defendant No.8) was staying with him prior to his death, it was brought out during evidence that she was living away from Mr.Krishna Holla since 1975 and had also raised a claim for maintenance from him. 51. Section 68 of the Evidence Act provides the manner in which execution of a will is to be proved. The scribe as well as the attesting witnesses of Ext.B1 were examined as DW2 to 4. All of them have deposed categorically about the health condition and mental status of Mr.Krishna Holla at the relevant time of execution of Ext.B1. The version of DWs 2 to 4 remained uncontroverted. The attempt of the opposite side to make them incredible, turned futile exercise. The credibility of witnesses was thus maintained. 52. The crucial factor to determine that execution of Ext.B1 was free from vitiating elements like fraud, coercion and undue influence was the sound state of disposition of mind of the testator at the relevant time when it was executed. Evidence indicative of ailments of the testator is brought in by DW1 and other witnesses. But, the physical ailments are not established ``` AS.No.186 OF 2003 ``` ``` 38 ``` as factors adversely influencing the sound disposition of mind of the testator. None of the ailments, Mr.Krishna Holla was shown as suffering from, was adequate to take a view on lack of sound disposition of his mind to execute the disputed Will. Even in a thorough scrutiny of the oral evidence tendered by DWs1 to 4, this Court did not find any reason to take a view that the mental status of Mr.Krishna Holla was that much weak and he was influenced by fraud, undue influence and coercion while executing Ext.B1. Actually, challenge was not raised on the above aspects in the appeal rather, Ext.B1 was contended as a void document and the Chittayikkot Bhagawathi as inexistent at the relevant time to receive the benefits of it as it’s beneficiary. 53. The evidence tendered by DWs 1 to 4 satisfactorily convince this Court that Mr.Krishna Holla was in a sound disposition of mind and got Ext.B1 prepared through DW2, and signed it after getting convinced of it's contents when the scribe read over those to him in the presence of DWs 3 and 4 who are attestors to it. DWs 3 and 4 have also claimed to have put their signature in Ext.B1 after affixture of Mr.Krishna Holla in it. ``` AS.No.186 OF 2003 ``` ``` 39 ``` 54. Therefore, the burden to establish execution of Ext.B1 was satisfactorily discharged by DW1. Plaintiffs though have contended that execution of Ext.B1 was influenced by vitiating elements like fraud, coercion or undue influence, they failed to adduce satisfactory evidence to discharge their onus. Execution of Ext.B1 being satisfactorily and convincingly established by DW1, this Court finds no valid reason to interfere with the finding of the trial court that the plaint schedule property is not liable to be partitioned. The appeal fails for the foregoing reasons and therefore is dismissed with costs. ``` Sd/- ``` ``` MARY JOSEPH ``` ``` JUDGE ``` ttb