IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 211 of 1995()
1. THANAKA
... Petitioner
Vs
1. SUKUMARAN
... Respondent
For Petitioner :SRI.P.N.KRISHNANKUTTY ACHAN(SR.)
For Respondent :SRI.D.KRISHNA PRASAD
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :13/09/2010
O R D E R
M.N. KRISHNAN, J.
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A.S.NO.211 OF 1995
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Dated this the 13th day of September, 2010.
J U D G M E N T
This is an appeal preferred against the judgment and
decree of the Subordinate Judge’s Court, Palakkad in
O.S.No.201/1983. Originally the suit was decreed and the
matter came up before this Court in appeal as
A.S.No.357/1986. The judgment was set aside and it was
remanded. Against that order, AFA.No.55/1990 was filed and
this Court disposed of the AFA by directing the trial court to
consider the matter afresh in the light of the observations
contained in the judgment or in other words, directed the
trial court to consider the question whether the Will has
been proved to be genuine and whether suspicion created
by the plaintiffs by pointing out various circumstances has
been removed. For this purpose, the court can look into
the evidence already adduced and the evidence to be
adduced after the remand.
2. After the remand, in the trial court PW3 was
examined and Exts.A6 to A8 were marked. On the side of the
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defendants Dws 4 to 7 were examined and Exts.B2 to B6
were marked. On an analysis of the materials, the trial
court came to the conclusion that both the Wills – Exts.B1
and B2 are genuine and they are not surrounded by any
suspicious circumstances and therefore dismissed the suit of
the plaintiffs.
3. Before analysing the facts of the case, it is
worthwhile to state the position of law with respect to Will.
In the decision reported in H. Venkatachala Iyengar v.
B.N. Thimmajamma (AIR 1959 SC 443), the Hon’ble Apex
Court has held that it is always the duty of the propounder
to prove the Will and remove any suspicious circumstances
even surrounding the execution of the Will. The Court also
held that the person who had written the document is no
more and it is trying to find out the truth by sitting on the
arm chair of the testator.
4. The brief facts would reveal that the plaint schedule
property belonged to one Appuchamy. Plaintiffs are the
three children of Appuchamy born in three different wives
namely Ammu, Meenakshi and Malu. The sole defendant is
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the wife of deceased Appuchamy. It is the case of the
plaintiffs that Appuchamy died and on his death, the property
had devolved upon the three daughters and the wife and
therefore, the plaintiffs are entitled to 3 out of 4 shares in
the property.
5. The defendants resisted the suit on the ground that
during the life time of Appuchamy on 18.2.1970, he had
executed a Will and therefore by virtue of the Will, on his
death the property had devolved upon the defendants and
therefore, the plaintiffs are not entitled to any relief. It has
also come out now that the sole defendant is dead and by
virtue of another Will executed in the year 1980, the
property had devolved upon supplemental defendants 2
and 3.
6. Now the question to be considered by virtue of the
order of remand is whether the Will is genuine and there are
any suspicious circumstance surrounding the execution of
Will which would invalidate the Will. So far as execution of
the Will and proof of the Will under Section 63 of the Indian
Succession Act, the trial court, the first appellate court as
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well as AFA court had found that the Will is executed by
this Appuchamy and its execution has been properly proved.
7. When the matter was heard by a learned single
Judge of this Court, His Lordship found that there are certain
circumstances which requires explanation and if it not
properly explained would amount to suspicious
circumstance regarding the genuineness of the Will. The
Division Bench while considering the AFA also has pointed
out the same and those suspicious circumstances that are
enumerated are:
(1) Exclusion of all the children as legatees in the Will.
(2). Blank spaces are seen at the top and bottom in
page 3 of Ext.B1 Will.
(3). Attestors signed only on the last page where no
portion of the contents of the Will is written.
(4). Unnatural placing of signatures of attestors and
testator on the last page of the Will.
(5) The scribe has not been examined to prove the
reason for the leaving space on page No.3.
8. The first appellate court felt that other than point
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No.1 all others are explained. But the Division Bench felt
that all these may have to be considered together to arrive
at a correct decision. The principal point canvassed is that
natural heirs had been disinherited and the only one heir is
given the entire property which is really unreasonable and
that would create suspicion in the mind of a person. Much
case law has been relied on this subject and it has been held
in very many decisions that mere exclusion of a natural heir
by itself does not amount to suspect the genuineness of the
Will. But so far as this case is concerned, there is a
contention for the contesting defendants that each of these
three daughters had been given 4 acres of wet land and 2
acres of dry land during the life time of Appuchamy prior
to his death. In order to impress the said fact, the defendants
after the remand had produced Exts.B2 to B7 and had also
examined DW7. Ext.B3 is an agreement which is not
registered. It is an agreement executed by three sons-in-law
of Appuchamy in favour of Appuchamy whereby each of them
had taken possession of 4 acres of double crop land and two
acres of dry land. Exts.B4 and B5 are partition deed as
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well as assignment deed which would refer to nature of the
property whereby it can be seen that the property dealt
with by them really belonged to Appuchamy. It is true that
agreement by itself does not confer any title on the parties,
but in one of the documents it is clearly recited that it had
devolved upon them even. So it is very clear that during the
life time of Appuchamy, the property as described in Ext.B3
had come into possession of the three daughters through
their husbands and there is even apportionment of the rent
for the property obtained by them. DW7 namely Aru who is
an attesting witness to the said agreement had spoken about
the factum of mediation pursuant to which properties had
been put into possession of the three sons-in-law. Therefore
the evidence of DW7 coupled with Exts.B3 to B5 documents
would establish that during the life time of Appuchamy he
had granted 4 acres of double crop and 2 acres of dry
land to the children and therefore one shall not hold that
there had been no parting of property in favour of the
children. Admittedly under Ext.B3 document, no property
has been given to the wife and therefore, it cannot be held
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that there is no justification for executing Ext.B1 Will in
favour of the wife – Kuttiamalu. So, the attempt of the
plaintiffs to raise a suspicious circumstance by unequal
distribution of assets does not detain us long to hold that
the Will is surrounded by suspicious circumstances.
9. The next point noted by the Division Bench and
Single Bench of this Court is regarding point Nos.2 to 4
which deals with some blank spaces, attestors signatures
only in the last page and unnatural placing of the signatures.
10. I had meticulously scanned through the Will. The
blank space seen on the third page of the Will is self
explanatory. It can be seen that body of the Will ends in the
3rd page and the schedule starts on the 4th page. Normally
when documents are written and property schedules are
attached it is nothing but a common practice among the
scribes to start schedule of the property in a new page. So
mere leaving space in page 3 does not by itself create a
suspicious circumstance. It has also to be stated that
normally in Will which we come across in civil litigation,
the attestors do not sign in each page but only sign in the
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last page of the Will. That is what is precisely done in this
case also. After attaching the schedule in the last page,
name of the witnesses are shown. They had signed
thereafter the scribe had also signed and then the executant
had also signed.
11. I do not find any suspicious circumstance arising
out of such conduct by the scribe. Therefore one cannot
hold that mere gap somewhere in the document is a
suspicious circumstance to vitiate the genuineness of the
will. I do not find any unnatural interpolation or omission
in the document so as to make an appearance of imperfection
or fraud. Therefore those points are also to be held against
the plaintiffs in this case.
12. Lastly regarding non-examination of the scribe.
The trial court had considered this aspect and held that when
really there are no sufficient suspicious circumstances,
which would militate against the correctness of the document,
non examination of the scribe cannot be held to be fatal. The
trial court held that it is not necessary to examine the scribe
under such circumstance when execution of the Will has
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been proved by examination of both the attesting witnesses.
So an over all analysis of the entire materials placed before
the court, execution and attestation of the document and
mental capacity of the executant are proved. It is also
proved that property had been given to the persons who are
excluded from the Will previously and the document only
puts up a natural look and it does not create any suspicion
in the mind of the court regarding genuineness.
13. Admittedly Appuchamy was being looked after by
his wife and as daughters had been already provided, he
thought it fit to provide it to the wife and had executed the
Will. So an exhaustive consideration, I also hold that Ext.B1
Will is genuine and therefore the plaintiffs are not entitled
to any relief.
14. Now comes the correctness of Ext.B2. Unfortunately
during the pendency of the suit the original defendant died
and sisters children of the defendants are claiming property
under Ext.B2 Will. The trial court has considered the
evidence with respect to Ext.B2 Will. The attestors have
been examined and scribe has been examined and they have
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proved about the mental capacity of Kuttimalu and also the
fact that both the attesting witnesses had seen the executant
signing the document and the executant had seen both the
attesting witnesses signing the document and therefore the
burden under Section 63 of the Indian Succession Act is
properly discharged by them.
15. It is also to be stated that Will is executed in the
year 1980 whereas the plaintiffs had instituted the suit in
the year 1983 and therefore there was no bad intention for
Kuttimalu or the supplemental defendants 2 and 3 to
create a Will three years prior to the institution of the suit.
That is why it is often said men may lie but the circumstances
will never lie. The trial court had considered and analysed
the evidence of attesting witnesses and the propounder and
had arrived at a decision Ext.B2 properly. Therefore the
finding that Ext.B2 is valid and genuine has to be upheld.
Since Ext.B2 Will is proved to be true, genuine, valid and
free of any suspicious circumstances, consequently it
follows that plaintiffs are not entitled to get any right over
the property and therefore, the finding of the trial court to
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that effect does not call for any interference and therefore
judgment and decree of the trial court are confirmed and
the appeal is dismissed under circumstances without any
orders as to costs.
M.N. KRISHNAN, JUDGE.
cl
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M.N. KRISHNAN, J.
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A.S.NO.211 OF 1995
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13th day of September, 2010.
J U D G M E N T