IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 95 of 2000(C)
1. K.K.SURENDRAN
... Petitioner
Vs
1. K.K.BALAKRISHNAN
... Respondent
For Petitioner :SRI.P.V.KUNHIKRISHNAN
For Respondent :SRI.P.V.MADHAVAN NAMBIAR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :17/02/2009
O R D E R
THOMAS P.JOSEPH, J.
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S.A. No.95 of 2000
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Dated this the 17th day of February, 2008
J U D G M E N T
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The two sons are fighting over a small plot of land, 33 cents in
extent which concededly belonged to their mother, late Janu. She got
that property as per final decree in O.S. No.670 of 1982. She died on
22.12.1991 leaving behind the appellant and respondent No.1, her
sons and respondent No.2 who is the son of her predeceased
daughter, Padmini (who died on 18.11.1990). Smelling that the
appellant might initiate some proceedings in respect of the suit
property respondent No.1 filed a caveat petition in the court of
learned Additional Munsiff, Kozhikode-II (Ext.A1). Appellant suspected
that respondent No.1 is claiming right over the entire property as per
some documents alleged to be executed by Janu and filed O.S.
No.844 of 1992 seeking partition of the suit property and separate
possession of his share. In the plaint the appellant stated that if at all
the signature of Janu is obtained by respondent No.1 in some
documents, Janu was not in a sound disposing state of mind to
execute any document. Respondent No.1 resisted the suit setting up
Ext.B2, Will dated 26.12.1990 and registered as document No.109/90
at the office of the Sub Registrar, Kozhikode. Respondent No.2 did not
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join sides either with the appellant or respondent No.1 and remained
absent. Learned Munsiff found that respondent No.1 was not able to
remove the cloud of suspicion surrounding the due execution of
Ext.B2, rejected it and passed preliminary decree for partition.
Respondent No.1 challenged the preliminary decree in appeal. First
appellate court found that due execution of Ext.B2 is proved, that is
the last Will and testament of Janu bequeathing the suit property in
favour of respondent No.1 and hence the appellant is not entitled to
partition. Suit was dismissed. That judgment and decree of the first
appellate court are under challenge in this appeal at the instance of
the plaintiff.
2. The following substantial questions of law are raised for a
decision: (1) Whether Ext.B2 Will is reliable or not? and (2) Whether
the judgment and decree of the lower appellate court based on Ext.B2
is correct or not?
3. It is contended by the learned counsel that the first
appellate court has reversed a well reasoned judgment of the trial
court which considered all the relevant aspects. It is contended by
learned counsel that the first appellate court has not considered the
evidence and rather was meeting the challenge made by the appellant
to the due execution of Ext.B2 based on certain decisions on the point
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which has no relevance on the facts of this case. Learned counsel
reiterated that respondent No.1 was not able to remove the suspicion
surrounding due execution of Ext.B2 and the first appellate court was
not justified in reversing the judgment and decree of the trial court.
Learned counsel for respondent No.1 supported the judgment and
decree of the first appellate court.
4. Facts which are not in dispute are that the suit property
belonged to Janu she having obtained the same as per final decree in
O.S. No.670 of 1982. She filed E.P. No.477 of 1990 in O.S. No.670 of
1982 seeking delivery of the property and going by the statement in
Ext.B1 copy of delivery note dated 15.1.1991 it would appear that
according to Janu, appellant had made some obstruction to the
delivery and hence assistance of police had to be taken for effecting
delivery. It is while so that Padmini (mother of respondent No.2),
daughter of Janu died after prolonged illness on 18.11.1990. A few
days thereafter Janu was admitted in Asoka hospital, Kozhikode and
she remained there for a few days. During that time, she executed
Ext.B2, Will dated 26.11.1990 bequeathing the suit property in favour
of respondent No.1 and divesting the appellant and respondent No.2
from inheritance. Appellant examined P.W.1 to prove that Janu was
not having sound disposing state of mind at the time Ext.B2 was
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executed and registered on 26.11.1990. Janu is the niece of P.W.1.
He stated that when Janu was undergoing treatment in Asoka hospital,
he had been there once and he found Janu in unconscious state.
On another day he went there and found Janu weeping. Respondent
No.1 as D.W.1 stated that Janu was taken to the hospital for stomach
ache and she was mentally and physically in good condition. He
pleaded ignorance about Janu executing Ext.B2 in the meantime. In
the course of cross-examination Ext.B2 was shown to him. He claimed
that he can identify the handwriting and signature of Janu but he was
not able to give any opinion about the author of the signature in
Ext.B2. D.W.2 is the Scribe of Ext.B2. Frills and embroideries
excluded, his evidence is that some time before the execution of
Ext.B2, Janu along with D.W.3 had been to his office and gave him
instruction to prepare a draft of the Will. He was given the copy of the
final decree in (O.S. No.670 of 1982) and on the basis of that
document he prepared the schedule of the Will as instructed by Janu.
Later when Janu met him, the draft of the Will was read over to her.
Then came Janu along with D.W.3 for execution and the Will was
executed as seen in Ext.B2 followed by its registration in the Sub
Registrar’s office. D.W.3 stated that he is the first attesting witness in
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Ext.B2 with one Raghavan as the second attesting witness (both of
them figure as identifying witnesses also on the same day). He stated
that he had been with Janu to the office of D.W.2 for giving instruction
for preparing the Will and later, he went to that office with Janu for its
execution. D.W.3 claimed that himself and Raghavan signed Ext.B2 in
the presence of Janu and that he saw Janu signing Ext.B2.
Respondent No.1 also produced Ext.B3 to show that on the strength of
Ext.B2 and after the death of Janu, he has been paying revenue for the
suit property. Exhibit B4 is the purchase certificate dated 13.10.1976
issued in respect of the suit property and other items in the name of
Janu and other co-owners (before the institution of O.S. No.670 of 1982
for partition). Exhibit B5 is a medical certificate dated 30.7.1993
produced by respondent No.1 to show that he is physically
handicapped to the extent of 40%. Exhibit B6 series are copies of
complaints preferred by respondent No.1 to the police and other
authorities alleging that appellant is attempting to trespass into the
suit property. Exhibit B7 is the certified copy of order dated
9.11.1987 in C.R.P. No.1614 of 1987 of this Court. That was a revision
filed by the appellant from an order passed in O.S. No.670 of 1982.
The C.R.P. was directed against Janu, respondent No.1 and Padmini,
mother of respondent No.2. That document was produced to show
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that all was not well and good between appellant and Janu. In
paragraph 3 of Ext.B7 it is stated that according to Janu, the appellant
was taking entire income from the properties and that she was not
even being given anything for bare maintenance. She expressed her
desire not to stay with the appellant in the house in the property.
5. The suspicious circumstances found by the learned Munsiff
and highlighted before me by the learned counsel for appellant are:
There was no reason why Janu, at a time when she was undergoing
treatment at the hospital should have rushed to the office of D.W.2 to
get a Will executed and that too, when she was upset by the death
of her only daughter, Padmini on 18.11.1990. Assuming that Janu
had a grudge to nurse against the appellant for the reasons stated in
Ext.B7 there is no reason why she excluded respondent No.2 from
inheritance particularly as her daughter, Padmini died just a few days
back. Yet another circumstance highlighted by the learned counsel is
that going by the evidence of D.W2 (Scribe) he was in the habit of
enquiring about the free will of the executant while undertaking the
preparation of Wills but no such enquiry was conducted in this case.
D.W.1 (respondent No.1) was not able to identify the signature of the
executant of Ext.B2 though he claimed that he can identify the
signature of Janu. Though evidence would show that even before the
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alleged execution of Ext.B2 final decree was passed in O.S. No.670 of
1982 as per which Janu got absolute right over the said property and
D.W.2 claimed that for the purpose of preparation of Ext.B2 Janu had
handed over copy of the final decree, there is no reference in Ext.B2 to
the final decree and instead, the schedule description in Ext.B2 is
based on the report of the Advocate Commissioner in the final decree
proceedings. Though the property is situated within the local limits of
Sub Registry Office at Kunnamangalam, Ext.B2 is registered at the
Sub Registry Office at Kozhikode and no explanation is forthcoming
from the propounder, (respondent No.1) of Ext.B2 for the same. There
are material contradictions in the evidence of D.Ws.2 and 3, Scribe
and first attester in Ext.B2. In that situation according to learned
counsel for appellant, non-examination of the second attester in Ext.B2
is fatal.
6. What exactly are the suspicious circumstances which the
propounder is required to clear has been decided by this Court in
Papoo v. Kuruvila (1994(2) KLT 278). It was held thus:
“Any and every circumstance cannot be
taken as suspicious circumstances. A
circumstance would be suspicious only when it
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is not normal or is not normally expected in a
normal situation or is not expected of a normal
person. In a case where the propounder let in
evidence to prove the due execution of the Will,
the burden shifts on to the defendants to
substantiate their case that the execution of the
Will is shrouded in suspicious circumstances.
When the propounder of the Will has
discharged his initial onus, the caveator-the
person opposing the issue of the probate,
should prove the suspicious circumstances….”
The precise question for consideration is whether respondent No.1 was
able to prove due attestation of the Will and remove the suspicious
circumstances if any, as understood in Pappoo’s case.
7. So far as the execution of Ext.B2 is concerned, even going
by the averments in paragraph 3 of the plaint it would appear that the
signature of Janu in Ext.B2 is not disputed and instead, vitiating
circumstances are pleaded in that according to the appellant,
execution was not on account of free will and pleasure of Janu. True,
even in the absence of specific plea regarding suspicious
circumstances it is for the propounder to remove such suspicious
circumstances, of if any. Therefore much stress need not be given to
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the lack of specific pleadings in the plaint. But respondent No.1 filed
written statement setting up the Will and produced Ext.B2, Will in the
trial court. Even though provisions of Order VIII of the Code of Civil
Procedure does not specifically provides so, it was open to the
appellant to file a replication with the permission of the court stating
whatever contentions he has, regarding the execution of Ext.B2.
Appellant did not do that.
8. Regarding the execution of Ext.B2, Will there is the
evidence of D.Ws.2 and 3. Learned counsel took me through the
deposition of D.Ws.2 and 3. I did not find any challenge on their
version that Janu had subscribed her signature in Ext.B2 and
presented it for registration. It is true that when respondent No.1 was
examined as D.W1, he was not able to confirm whether the signature
in Ext.B2 was that of her mother. But proof regarding due execution
has to come from the attesting witnesses and not necessarily from
D.W.1, though his evidence will also be relevant on the issue
regarding execution. I stated that there is no challenge to the
evidence of D.Ws.2 and 3 regarding the signature of the executant in
Ext.B2. There is no case that somebody personating Janu appeared
before the Sub Registrar for the registration of Ext.B2. Though
registration of the Will by itself is no guarantee for its genuineness or
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due execution, that is not altogether irrelevant for consideration.
Exhibit B2 contains an endorsement of the Sub Registrar as provided
under Section 34 of the Registration Act and sub-sec.2 requires the
Sub Registrar to question the executant regarding the execution of the
document. In fact D.W.3 stated that he heard the Sub Registrar
asking something to Janu but he was not able to say what exactly
that was. There is no reason to think in the light of the statutory
obligation cast on the Sub Registrar under Sec.34(2) of the
Registration Act that what the Sub Registrar asked Janu was
something other than he was required to do under the said sub-
section.
9. So far as the sound disposing state of mind of Janu to
execute Ext.B2, Will is concerned much reliance is made on the
evidence of P.W.1, uncle which I have already referred to. Going by
that evidence Janu was not in sound state of mind to execute any
document. D.W.1 has given evidence to the contra. It is stated in the
plaint that on account of his illness appellant was not able to look
after Janu in the hospital as he himself was laid up in the house of his
sister (Padmini) and therefore respondent No.1 (D.W.1) was looking
after Janu in the hospital. If that be so, D.W.1 must be more
competent to speak about the condition of his mother during that time.
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According to him, Janu was admitted in the hospital due to stomach
ache. If the appellant has a contention that Janu was admitted in the
hospital for any other illness which affected her mental capacity,
certainly he should have summoned the relevant documents from the
hospital and proved the same. That also was not done. According to
the learned counsel for the appellant it was for respondent No.1 to
summon relevant records from the hospital to show that Janu was
admitted for stomach pain and for no other illness. I am unable to
agree. For, respondent No.1 discharged the initial burden of proving
the execution of Ext.B2 by examining D.Ws.2 and 3. There was
nothing affecting the mental capacity of Janu. In that situation, the
onus of proof was shifted to the appellant to prove otherwise, which
he did not.
10. It is difficult to think that as stated by P.W.1, Janu was
unconscious at the time of his first visit in the hospital and therefore
was unable to move about. At least, the fact of registration of Ext.B2
on 26.11.1990 would show that she had been from the hospital to the
office of the Sub Registrar. I am not inclined to think that Janu, if were
in a condition as spoken by P.W.1, was able to move about, had been
to the office of the Sub Registrar and answered his questions as
provided in Sec.34(2) of the Act.
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11. I shall refer to the contention raised by the learned counsel
that there was no necessity for Janu to disinherit the appellant and
respondent No.2. Counsel contends that respondent No.1 cannot draw
strength from Ext.B7 as to the relationship between appellant and
Janu since it is admitted by respondent No.1 when examined as D.W.1
that until 1991 Janu was staying with the appellant. But D.W1 has
stated that until 1990 Janu used to stay with all of them and
thereafter she was staying with him throughout. Exhibit B7 contains
the statement of Janu that her relationship with the appellant was not
cordial during that time and she even expressed her wish not to stay in
the house with the appellant. It is to be borne in mind that the very
object of executing a Will is to disinherit one or other natural heir
who, but for the testamentary disposition would inherit the property of
the testator. The folly of the testator is not a consideration. The
relevant question is whether Janu was in sound disposing state of mind
and executed Ext.B2 on her free will. So far as the disinheritance of
respondent No.2 is concerned, P.W.1 has admitted that respondent
No.2 and his family are placed in reasonably good circumstances. It is
in evidence that respondent No.1 was working in CWMS bus service
and while so, met with an accident resulting in 40% disability as
stated in Ext.B5. Though the general attitude of a mother, P.W.1 did
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not deny that when the son who was working and earning met with an
accident, the mother may show sympathy on him. This may be the
reason for Janu executing a Will in favour of respondent No.1
disinheriting the appellant and respondent No.2.
12. In Ext.B2 there is no reference to the final decree in O.S.
No.670 of 1982. But reference is made to the allotment of the suit
property as the share of Janu as per the report of the Advocate
Commissioner in the final decree. No doubt, final decree was passed
even before Ext.B2 and D.W.2 also stated that copy of the final decree
was handed over to him for preparing the Will. But it is common
knowledge that when allotment is made by the Advocate
Commissioner in a partition suit and that allotment is accepted, the
schedule to the final decree contains the allotment made by the
Advocate Commissioner. Therefore it made no factual difference so
far as this case is concerned whether it was relying on final decree or
copy of report of the Advocate Commissioner that the schedule in
Ext.B2 was prepared. On the question as to why Janu rushed to the
office of D.W.2 to prepare the Will while she was undergoing treatment
at the hospital and that too, immediately after the death of her only
daughter, Padmini on 18.11.1990 the first appellate court observed
that possibly Janu felt that her days are numbered as she was old
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(she was aged 72 at the time of Ext.B2) and in the circumstance that
was prevailing she though that she should not lose time in executing
the Will.
13. The property is situated within the local limits of Sub
Registrar’s office, Kunnamangalam but Ext.B2 is seen registered at
Kozhikode. That according to learned counsel for the appellant is a
suspicious circumstance. It is not disputed that notwithstanding the
place where the property is situated, a document can be registered in
any other Sub Registrar office. Evidence of D.Ws.2 and 3 though
there is some discrepancy as to the exact period, would indicate that
even before Janu was admitted in the hospital, she thought of
executing a Will and approached D.W.2 for the purpose. May be that
when she was available at Kozhikode due to admission in a hospital
there, she thought it convenient to get the Will executed in the
nearby Sub Registrar office probably as she did not want others to
know about it.
14. Contradictions highlighted in the evidence of D.Ws.2 and 3
are not as to the execution of the Will or its registration but only as to
the details of it which in my view does not affect the veracity of their
evidence on the crucial point. First appellate court has considered the
evidence and of course, some of the contentions raised by the
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appellant are met with the aid of binding authorities. First appellate
court found that due execution and attestation of Ext.B2 are proved
and that there are no suspicious circumstances surrounding its
execution.
15. At this stage, learned counsel for appellant requested that
the case may be remanded to the trial court so that the appellant
could summon the records from Asoka hospital, Kozhikode regarding
the treatment of Janu. In the facts and circumstances of the case and
considering the fact that this litigation has been pending from 1992
onwards and no justifiable reason is stated for not summoning the
records at the appropriate stage and in the light of the evidence which
I have discussed above, I am not inclined to accede to that request.
16. Before concluding I may point out the decision of the Apex
Court in Venkatachala v. B.N. Thimmajamma (AIR 1959 SC
443). It was held thus:
“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”.
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17. From the evidence on record, I am of the view that such
evidence has been let in by the propounder as found by the first
appellate court. There is no reason to interfere.
Appeal fails. It is dismissed. No costs.
Civil Miscellaneous Petition No.920 of 2003 and 339 of 2004 shall
stand dismissed.
THOMAS P.JOSEPH, JUDGE.
vsv
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THOMAS P.JOSEPH, J.
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S.A. NO.95 OF 2000
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J U D G M E N T
17TH FEBRUARY, 2009