IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 127 of 2010()
1. KAMALA SARASWATHI
... Petitioner
Vs
1. RAJAGOPAL
... Respondent
2. THE SECRETARY
For Petitioner :SRI.SAJAN VARGHEESE K.
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :11/02/2010
O R D E R
THOMAS P. JOSEPH, J.
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R.S.A.No.127 of 2010
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Dated this the 11th day of February, 2010.
JUDGMENT
Second Appeal arises from judgment and decree of learned First
Additional District Judge, Palakkad in A.S.No.270 of 2004 confirming judgment
and decree of learned Munsiff, Chittur in O.S.No.321 of 2003. Respondent
No.1/plaintiff is the brother of appellant/defendant No.2. They are the children of
late Vadivel Chettiar who died on 4.9.2002. In the year 1999 Vadivel Chittiar
had opened a fixed deposit account with respondent No.2/defendant No.1 which
matured by 2004. In the year 1996 Vadivel Chettiar along with his wife and
children executed Ext.A4, partition deed as per which the properties were divided
among Vadivel Chettiar and respondent No.1. He died on 4.9.2002. Thereafter
respondent NO.1 instituted the suit setting up Ext.A2, unregistered Will dated
3.3.2002 allegedly executed by the late Vadivel Chettiar and seeking declaration
of his right over the properties dealt with thereby. He prayed for a decree for
injunction to restrain appellant from withdrawing the amount in the fixed deposit
on the strength of her nomination made by deceased Vadivel Chettiar.
Respondent No.2/defendant No.1, the banker contended that there was a fixed
deposit account opened by the deceased Vadivel Chettiar with appellant as
nominee and normal practice is to pay the amount to the nominee on death of
account holder. Appellant denied execution of the unregistered Will and
contended that it is the result of forgery. According to her, Vadivel Chettiar was
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suffering from various illness and about a year before his death respondent No.1
demanded Vadivel Chettiar to transfer the amount in the fixed deposit as well as
his other movable and immovable properties which Vadivel Chettiar refused and
since then Vadivel Chettiar and respondent No.1 were not talking in terms. She
contended that respondent No.1 has no right over the movable or immovable
properties referred to in the disputed Will. Trial court after recording evidence
reached the conclusion that due attestation and execution of Ext.A2 are proved
and accordingly granted a decree in favour of respondent No.1. First appellate
court confirmed it. Hence the Second Appeal urging the following substantial
questions of law:
i. Whether Ext.A2, Will is legally and properly executed and is
sustainable in law?
ii. Whether propounder has succeeded in establishing due
attestation and execution of Ext.A2, Will beyond reasonable doubt?
It is contended by learned counsel for appellant/defendant No.2 that due
attestation and execution of Ext.A2 which is not even registered is not proved
and that there are suspicious circumstances concerning alleged execution of Will
which the propounder was not able to remove. According to the learned counsel
courts below ought not to have upheld production of Ext.A2, Will.
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2. So far as proof of due attestation and execution of the Will is
concerned the settled position of law is that as in the case of other documents in
the case of Will also, proof with arithematical precision is not required.
Respondent No.1 has put up Ext.A2, Will dated 3.3.2002. True, the Will is not
registered but it is not contended that as per the law in force a Will requires
registration compulsorily. Nor is registration a substitute for evidence of due
execution and attestation of the Will. At the same time registration is a
circumstance which could be taken into account along with other circumstance in
favour of due execution of the Will. As Ext.A2 is not registered proof in that way
is not available. Still it is required to be decided whether there is evidence of
due execution and attestation of Ext.A2.
3. Respondent No.1 has given evidence as PW1. According to him
he was not aware of the Will at the time of death of his father on 4.9.2002 and
learnt about the Will only three months after death of the father. He did not say
the specific date when he learnt about the disputed Will. PWs 3 and 4 are
attestors in Ext.A2 and PW2 is the scribe. PW5 is a close friend of the
deceased. According to PWs 2 to 5, the Will was executed and attested at the
house of PW5. They have given evidence that instruction for preparation of the
Will was given to PW2 by deceased Vadivel Chettiar. Evidence of PWs 3 and
4 refers to due attestation and execution of the Will as provided under law.
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4. Contra evidence is given by the appellant/defendant No.1 as DW2.
She stated that the Will is the result of forgery and that Vadivel Chettiar was
suffering from several illness since about a year before his death on 4.9.2002.
Though she stated that Will is the result of forgery, on going through the
deposition of appellant as DW2 I do not find any challenge to the signature of
the executant in Ext.A2. Moreover, it is seen from the written statement that
appellant has raised a contention that immediately after the death of Vadivel
Chettiar respondent No.1 collected documents including fixed deposit receipt
and signed paper left by the deceased. Though she contended that Vadivel
Chettiar was suffering from various illness she has no case that Vadivel Chettiar
was not having sound disposing state of mind during the time of execution of
Ext.A2. No such contention is raised either in the written statement or in her
evidence as DW2. I stated that there is no challenge to the signature of
Vadivel Chettiar in Ext.A2.
5. The suspicious circumstance pointed out by the learned
counsel for appellant before me is with reference to Exts.B5 to B9. It has come
in evidence through Exts.B5 to B9 that Vadivel Chettiar had obtained decree in
O.S.No.552 of 2001 and filed E.P.No.311 of 2002. It is while that execution
petition was pending that Vadivel Chettiar expired. Thereafter respondent
No.1, appellant and their mother filed E.A.No.38 of 2003 in the executing court
on 13.1.2003 (its CC is Ext.B5) seeking their impleadment as legal
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representatives of the deceased Vadivel Chettiar (as if there was no
testamentary succession). Ext.B6 is the copy of application for consequential
amendment and Ext.B7 is the copy of application for condonation of delay in
filing the application for impleadment. Ext.B8 is the copy of application dated
15.3.2003 filed by respondent No.1 in the same court seeking his impleadment
as legal representative on the strength of Ext.A2 and Ext.B9 is the CC of
consequent amendment application. Argument advanced by learned counsel for
appellant is that if the Will was allegedly executed on 3.3.2002 and Vadivel
Chettiar died on 4.9.2002 respondent No.1 would not have along with appellant
and their mother filed Ext.B5, E.A.No.38 of 2003 on 13.1.2003 claiming to be
legal representative of the deceased Vadivel Chettiar. It is seen from Exts.B8
and B9 that on 15.3.2003 respondent filed an application for his impleadment
as legal representative on the strength of Ext.A2, the disputed Will. PW1 has
given explanation that at the time of Exts.B5 to B7 he was not aware of the Will.
Therefore failure to put up Ext.A2 by respondent No.1 while applying for
impleadment as per Ext.B5 dated 13.1.2003 is not fatal, nor a suspicious
circumstance.
6. Another circumstance which according to the learned counsel is
suspicious is disinheritance of appellant and her mother while Ext.A2 was
allegedly executed. True, it is seen from Ext.A2 that Vadivel Chettiar has
bequeathed all his movable and immovable properties including the fixed deposit
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in favour of respondent No.1. Trial court has referred to the relevant decisions
on the point and held that the mere fact of disinheritance of appellant and her
mother by itself cannot be a suspicious circumstance. I must bear in mind that
the very object of executing a Will is to interfere with the normal line of
succession. Therefore mere fact that the normal line of succession is interfered
with as per Ext.A2 by itself cannot be a suspicious circumstance. There are
also circumstances proved in the case to show why appellant and mother were
excluded from inheritance as per Ext.A2. Even in Ext.A4, partition deed the
testator did not allot any share to his wife. Hence there is nothing strange in his
excluding the wife as per Ext.A2. Evidence of DW2 would show that appellant
was sent in marriage much prior to the execution of Ext.A4 and that the testator
met all expenses in connection with the marriage. It is also in evidence that her
husband has eight acres of land. Thus there is evidence that appellant was
sent in marriage by the deceased into a financially well placed family. That
could be the reason why the deceased wanted to disinherit the appellant while
executing Ext.A2. Therefore fact of disinheritance of appellant and mother is
no suspicious circumstance regarding execution of Ext.A2.
7. Another ‘suspicious circumstance’ pointed out is that as against the
Will being prepared at the residence of the deceased or at the office of the scribe
it was prepared at the residence of PW5. It has come in evidence that PW5 was
a close confident of the deceased. It has also come in evidence that he is one
of the witnesses in Ext.A4, partition deed. In the circumstance that the
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document was executed and attested at the house of PW5 is also not a
suspicious circumstance.
8. Any and every circumstance cannot be ‘suspicious circumstance’.
A circumstance would be suspicious if in the normal course the testator would
not have done so. No such circumstance exist in this case. Courts below have
considered the evidence and come to the conclusion that Ext.A2 is the Will
executed by deceased Vadivel Chettiar with sound disposing state of mind and
duly attested by the witnesses. If that be so respondent No.1 is entitled to a
decree as prayed for notwithstanding that appellant is made the nominee. As
per law a nominee can only collect the amount on behalf of the legal
representative. On going through the judgments under challenge and hearing
learned counsel I do not find any substantial question of law involved in this
Second Appeal requiring decision.
Resultantly, the Second Appeal is dismissed in limine.
I.A.No.297 of 2010 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks