Kerala High Court
Sathy M.P vs Sarasa on 16 July, 2014
Author: K. Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
WEDNESDAY, THE 16TH DAY OF JULY 2014/25TH ASHADHA, 1936
RSA.No. 646 of 2009 ( )
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AGAINST THE JUDGMENT IN AS 326/2006 of ADDL. DISTRICT
COURT, NORTH PARAVUR.
AGAINST THE JUDGMENT IN OS 147/2004 of PRINCIPAL SUB
COURT,PARAVUR.
APPELLANTS/APPELLANTS/PLAINTIFFS:
---------------------------------
1. SATHY M.P., AGED 52 YEARS,
W/O. N.C.PURUSHAN, NIKATHITHARA, PADAMUGAL DESOM,
VAZHAKKALA VILLAGE, KANAYANNUR TALUK, NOW
RESIDING AT KUNNATH HOUSE, NEAR OLD RATION SHOP,
PERUVARAM, NORTH PARAVUR.
2. M.P.BABY, AGED 51 YEARS,
W/O. DR. M.A.KARTHIKEYAN, MURINGODITHARA HOUSE,
MANIMALA P.O., VELLAVOOR VILLAGE, CHANGANASSERY
TALUK, KOTTAYAM DISTRICT.
BY SRI. N.C PURUSHAN (PARTY IN PERSON)
RESPONDENT(S)/RESPONDENTS/RESPONDENTS:
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1. SARASA, AGED 56 YEARS, W/O. THANKAPPAN,
VADATHARA HOUSE, ELAMKUNNAPUZHA DESOM,
ELAMKUNNAPUZHA VILLAGE, KOCHI TALUK.
2. BABY, AGED 26 YEARS, D/O. SARASA,
VADATHARA HOUSE, ELAMKUNNAPUZHA DESOM,
ELAMKUNNAPUZHA VILLAGE, KOCHI TALUK.
.....2
-2-
3. AMBILY, AGED 24 YEARS, D/O. SARASA,
VADATHARA HOUSE, ELAMKUNNAPUZHA DESOM,
ELAMKUNNAPUZHA VILLAGE, KOCHI TALUK.
4. VIMALA, AGED 47 YEARS, W/O. HARIDAS,
VATEPARAMBIL, AYYAMPILLY P.O., KUZHUPPILLY
VILLAGE, KOCHI TALUK.
R,R4 BY ADV. SRI.DINESH R.SHENOY
R,R4 BY ADV. SRI.V.V.UNNIKRISHNAN
R,R1,2 & 3 BY ADV. SRI.R.MURALEEKRISHNAN
R,R1,2 & 3 BY ADV. SRI.P.M.MUJEEB REHIMAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY
HEARD ON 16/6/2014, ALONG WITH RSA. 1038/2009, THE
COURT ON 16/7/2014 DELIVERED THE FOLLOWING:
K. HARILAL, J.
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R.S.A. Nos. 646 & 1038 of 2009
& Cross objection No.93 of 2014
in R.S.A.No.1038 of 2009
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Dated this the 16th day of July, 2014
JUDGMENT
In both these Regular Second Appeals, the appellants are plaintiffs in O.S.No.147/2004 on the files of the Principal Sub Court, North Paravur. The above Original Suit was decreed in part. The plaintiffs filed A.S.No.326/06 and the defendants filed A.S. No.319/2006 before the Additional District Court, North Paravur, challenging the decree and judgment. The lower appellate court dismissed A.S.No.326/06 filed by the plaintiffs and allowed A.S.No.319/06 filed by the defendants in part. Feeling aggrieved, the plaintiffs filed R.S.A.No.1038/2009 challenging the decree and R.S.A. Nos. 646 & 1038 of 2009 -: 2 :- judgment passed in A.S.No.319/06 and R.S.A. No.646/09 challenging the decree and judgment passed in A.S.No. 326/06. The 4th defendant filed cross-objection in R.S.A.No.1038/2009 challenging the decree and judgment passed in A.S.No.319/2006.
2. The parties are referred to as in the Original Suit. The above Original Suit was one for declaration of title, injunction and for recovery of possession after setting aside the Will and sale deed in respect of 'A' and 'B' schedule properties respectively and for recovery of possession of the said properties. According to the plaint averments, plaint 'A' and 'B' schedule properties originally belonged to on Prabhakaran, the father of the plaintiffs herein. He died on 23/9/2003 and his wife was died in the year 2000. In the year 1982, the said Prabhakaran executed a Will bequeathing his properties in favour of defendants 2 and 3. Subsequently, defendants 2 and 3 conveyed plaint 'A' schedule property to the 1st defendant and 'B' schedule property to the 4th defendant. At the time of execution of the alleged Will, the above said Prabhakaran was not having a sound mind and hence the Will allegedly executed by R.S.A. Nos. 646 & 1038 of 2009 -: 3 :- Prabhakaran in favour of the defendants have no legal sanctity. The Will executed by Prabhakaran without knowing its contents and he was in an unsound state of mind at that time and he has no memory power to recollect what he has done. Thus, the Will is a fabricated and forged one and it has no legal effect at all. There is no proper attestation to the alleged Will. Hence any claim put forward under the Will by the defendants will not stand in the eye of law. Hence they prayed as stated above.
3. Defendants 1 to 3 filed a written statement denying the averments in the plaint. According to them, the 1st defendant is the second wife of late Prabhakaran and defendants 2 and 3 are his daughters born in that wed-lock with the 1st respondent. Prabhakaran executed a registered Will bequeathing his entire property to defendants 2 and 3 and in that Will there is a direction to pay an amount of `10,000/- to the 2nd plaintiff and as such, after the death of Prabhakaran, defendants 1 to 3 approached the 2nd plaintiff with an amount of `10,000/-. But the 2nd plaintiff refused to receive the same. The Will is a valid one executed by Prabhakaran, after fully knowing its contents and he had R.S.A. Nos. 646 & 1038 of 2009 -: 4 :- sound disposing mind at the time of execution of the Will. They strongly denied the allegation that the Will has no legal sanctity or value at all. According to them, the Will satisfies all statutory requirements.
4. On the above pleadings, P.W.1 was examined and Exts.A1 to A9 were marked on the side of the plaintiffs and D.Ws.1 to 3 were examined and Exts.B1 to B8 were marked for the defendants. After considering the evidence on record, the trial court decreed the suit in part. The suit was decreed in part declaring that the sale deed No.529/04 dated 13/2/2004 of S.R.O., Kuzhuppilly, was invalid and it will not affect the right and interest of the plaintiffs over the 'B' schedule property. The 4th defendant was directed to hand over the possession of the 'B' schedule property to the plaintiffs within a period of two months, or else the plaintiffs are allowed to get recovery of possession through court. The defendants are restrained from creating any documents in respect of the 'B' schedule property and inducting strangers and committing waste in the property. Feeling aggrieved, both the plaintiffs and the defendants preferred A.S.Nos.326/06 and 319/06, as stated above. After, re- R.S.A. Nos. 646 & 1038 of 2009 -: 5 :- appreciating the entire evidence on record, the lower appellate court dismissed the appeal filed by the plaintiffs and allowed the appeal filed by the defendants in part, modifying the decree and judgment of the lower court by passing a decree declaring that the sale deed No.529/2004 dated 13/2/2004 of S.R.O., Kuzhuppilly, is not binding on the plaintiffs and their respective interest, title and possession over the plaint 'B' schedule property and also passing a permanent prohibitory injunction restraining the defendants from committing any kind of waste in the plaint 'B' schedule property. Feeling aggrieved, both parties preferred the above Regular Second Appeals challenging the common judgment.
5. The Power-of-Attorney appearing for the appellants advanced arguments challenging the concurrent findings of the court below that the Will stands proved. According to him, Ext.B1 Will was neither executed in accordance with Sec.63 of the Indian Succession Act nor proved in terms with Sec.68 of the Indian Evidence Act. There was no statutory compliance as contemplated under Sec.63 of the Evidence Act. But the court below miserably failed to appreciate the R.S.A. Nos. 646 & 1038 of 2009 -: 6 :- same in accordance with law. The attesting witness, who was examined in court, has not deposed as to the execution of the Will as contemplated under Sec.68 of the Evidence Act. There is no valid evidence to show that Sarasa is the second wife of Prabhakaran and her daughters Ambily and Baby are the daughters of Prabhakaran, the testator of the Will. But the court below placed reliance on the entires in the Will which is not at all proved and valid. In fact, Sathy.M.P. is the elder daughter. But in the disputed Will Baby. M.P. is shown as the elder daughter and that itself is sufficient to show that the deceased testator of the Will was not of sound disposing mind at the time of the execution of the Will. In fact, the late Prabhakaran was not in a sound state of mind at the time of the execution of the Will. But the court below went wrong by finding that the appellants failed to prove the same. The courts below have proceeded on a wrong assumption as to burden of proof. The courts below failed to appreciate the evidence of D.W.1 in its correct perspective. The courts below ought to have found that D.W.2 failed to identify the testator at the time of the execution of the Will. The courts below ought to have found R.S.A. Nos. 646 & 1038 of 2009 -: 7 :- that the disputed Will was executed by way of impersonation.
6. Per contra, the learned counsel for the respondents advanced arguments to justify the concurrent findings that the Will is proved in accordance with Sec.63 of the Indian Succession Act and proved as contemplated under Sec.68 of the Evidence Act. According to him, the relationship between the testator and propounders of the Will is insignificant and therefore, whether the respondents are the wife and children of the testator is not a relevant issue to be considered while determining the genuineness of the Will. According to him, Will has been executed in compliance with Sec.63 of the Indian Succession Act and Sec.68 of the Evidence Act. Absolutely there is no evidence to show that the deceased testator was not of sound state of mind at the time of execution of the Will and the appellants miserably failed to prove the same. The appellants themselves admitted in the pleadings that the deceased Prabhakaran himself had executed the Will. But according to the appellants, he was not of sound disposing mind. So the question of impersonation raised in the arguments stands R.S.A. Nos. 646 & 1038 of 2009 -: 8 :- without pleadings and the argument as regards the unsoundness of mind and impersonation are mutually opposed and destructive. The court below can be justified in relying on the evidence of the attesting witness in the matter of proving the Will. There is no illegality or irregularity in the finding that the Will stands proved in accordance with law. But he advanced arguments challenging the findings of the appellate court that 'B' schedule property is partiable. According to him, the appellate court went wrong in granting a declaration that sale deed No.529/2004 dated 13/2/2004 of SRO, Kuzhuppilly, is not binding on the right, title and interest of the plaintiffs over the 'B' schedule property. Similarly, the court below went wrong by setting aside the recovery of possession of 'B' schedule property granted by the trial court. The court below went wrong in observing that in Ext.B1 Will there is no clause or provision enabling the legatee under the Will to get any property which may be obtained by the testator in future and as such, in so far as 'B' schedule property is concerned, it has to be held that late Prabhakaran died intestate in so far as 'B' schedule property is concerned. The court below further R.S.A. Nos. 646 & 1038 of 2009 -: 9 :- went wrong in observing that 'B' schedule property is governed by the personal law of inheritance of the deceased and prayed for setting aside the findings of the appellate court as regards 'B' schedule property and urged for restoration of the findings of the trial court in that respect.
7. First of all, I must remind myself the scope and extent of jurisdiction of this Court under Sec.100 of the Code of Civil Procedure. The jurisdiction of this Court to interfere with the findings of fact under Section 100 of the C.P.C. is limited to case where the finding is either perverse or based on no evidence. This Court cannot interfere with the concurrent findings of facts until or unless the same is perverse or contrary to materials on record. [See, Sugani (Mst.) Vs. Rameshwar Das and Another (2006 (11) SCC 587), Gurudev Kaur and others Vs. Kalki and others (2007 (1) SCC
546) & Narayan Rajendran and Another Vs. Lekshmi Sarojini and Others (2009 (5) SCC 264). It is equally settled in law that this Court in exercise of power under Section 100 of the CPC cannot re-appreciate the evidence. [See, Thimmaiah and Others Vs. Mingamma and Another (2000 (7) SCC 409)]. Where on appreciation of evidence, even two views are R.S.A. Nos. 646 & 1038 of 2009 -: 10 :- possible, this Court, in exercise of power under Section 100 of the C.P.C. would not interfere. [See, Kondiba Dagadu Kadam Vs. Savitri Bai Sopan Gujar (1999 (3) SCC 722) & Veerayee Ammal Vs. Seeni Ammal (2002 (1) SCC 134)].
8. It is the specific case of the plaintiffs that the testator of the Will the late Prabhakaran was not having a sound state of mind at the time of execution of the Will and hence the Will propounded by the defendants have no legal sanctity at all. The Will was executed by Prabhakaran without knowing its contents and he was in an unsound state of mind at that time, without having any capacity to recollect what he has done and without any memory power.
9. As regards unsoundness of mind alleged, the first question is, on whom the burden of proof lies? It is true that if there are suspicious circumstances surrounding the execution of the Will, initial burden of proof is on the propounder of the Will to dispel those suspicious circumstances, which centers around the Will as regards execution of the Will. So, the first point to be considered in the instance case is whether there is any suspicious circumstances surrounding the execution of the Will. The R.S.A. Nos. 646 & 1038 of 2009 -: 11 :- plaintiffs have mainly relied on three circumstances. It is contended that the name of the testator is stated as 'Vaadathara Prabhakaran' instead of 'Vadathara Prabhakaran' and in the body of the Will in one place one of his daughters Baby is stated as 'eldest daughter', but 'Sathy' is the eldest daughter. The third point is that the 1st defendant is stated in the Will as the second wife of the testator which is, according to the plaintiffs, factually incorrect.
10. Admittedly, the Will is prepared by a scribe and, as rightly found by the appellate court, it is quite natural that there may be mistakes in using the alphabets while writing the name of the house 'Vadathara'. No way the said mistake makes any suspicion as to the identity of Prabhakaran, particularly when the execution of the Will by Prabhakaran is admitted in pleadings and his mental capacity alone is disputed. Similarly, merely on the reason that his younger daughter is shown as 'elder daughter', it cannot be treated as a suspicious circumstance doubting the mental capacity of the testator. Suspicious circumstance must be a circumstance which would make a strong R.S.A. Nos. 646 & 1038 of 2009 -: 12 :- suspicion in the mind, doubting the genuineness of the Will. Strong inherent improbabilities must have spelled out from such suspicious circumstances. Disposition must be unnatural, improbable or unfair in the light of the circumstances. But in the case on hand, there is no such circumstances, which would give rise to suspicion.
11. Coming to the third contention that the 1st defendant is stated in the Will as 'second wife of the testator', going by the evidence, it could be seen that it is the specific case of the defendants that the 1st defendant is the 2nd wife of the testator and the 2nd and 3rd defendants are his children born in that wed-lock. Even if the 1st defendant is not a legally wedded wife of the testator, if he was habitually residing along with her as his wife, nothing unusual or unnatural in describing her as his wife in the Will executed by him, though the spouse is not a legally recognised one and it can never be treated as a suspicious circumstance doubting the genuineness of the Will, particularly in view of Exts.B2 to B8 produced by the defendants. It is to be borne in mind that the testator can execute a Will bequeathing his entire property to any person, R.S.A. Nos. 646 & 1038 of 2009 -: 13 :- irrespective of his relationship with him. The testator himself claims that the 1st defendant is his wife. Therefore, the status of the 1st defendant shown in the Will as the second wife also cannot be taken as a suspicious circumstance, particularly, when it has come out in evidence that though there is no valid marriage in the eye of law, the testator had been residing along with the 1st defendant as second wife, when his legal marriage with the first wife was subsisting. When the specific case of the defendants is that the 1st defendant is the wife of the testator, it cannot be held that the status of the 1st defendant shown in the Will as the second wife of the testator is a suspicious circumstance. No other circumstances had been put forward by the appellants to fortify their contention that Will is surrounded by suspicious circumstances. The reasons for exclusion of the plaintiffs from inheritance of landed property are satisfactorily explained in the Will. I find that the disputed Will cannot be treated as one surrounded by suspicious circumstances. Therefore, I find that no burden was cast on the defendants to remove any kind of suspicious circumstances.
R.S.A. Nos. 646 & 1038 of 2009 -: 14 :-
12. Coming back to the alleged unsound mind of the testator Prabhakaran, let us have an analysis of the relevant law at first. Sections 11 and 12 of the Indian Contract Act, 1872 relate to these points.
"11. Who are competent to contract.-- Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject.
12. What is a sound mind for the purpose of contracting.--A person is said to be of sound mind for the purpose of making a contract, if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests.
13. In Sona Bala Bora Vs. Jyotirindra Bhattacharjee [2005 KHC 872 = (2005) 4 SCC 501)], it reads as follows:
" Under Section 12 of that Act, a person is said to be of sound mind for the purpose of making the contract, if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his R.S.A. Nos. 646 & 1038 of 2009 -: 15 :- interests. A person of unsound mind is thus not necessarily a lunatic. It is sufficient if the person is incapable of judging the consequences of his acts.
Black's Law Dictionary says:
"As a aground for voiding or annulling a contract or conveyance, insanity does not mean a total deprivation of reason, but an inability, from defect of perception, memory and judgment, to do the act in question or to understand its nature and consequences."
14. Going by the above sections, it could be seen that the sound mind is one of the statutory requirements to enter into a contract and unsoundness of mind is a factor which renders a contract void. Once a lunatic is not always a lunatic, a person of unsound mind is not necessarily a lunatic. Likewise, a person cannot be branded as insane or incapable to enter into a contract for the reason that he was not sane. A person can be sane as well as insane at times. Insanity can come and go intermittently. There can be lucid intervals of sanity in between the periods of insanity. A person can enter into a contract when he is sane in the lucid R.S.A. Nos. 646 & 1038 of 2009 -: 16 :- intervals and such contract is also valid.
15. What is the test of the unsoundness of mind? A person, who is occasionally of unsound mind, can enter into a contract when he is of sound mind and the document which he executes at that time is a valid one. The test of the unsoundness of mind is, whether a person is capable of understanding a contract which he makes and of forming the rational judgment as to its effect upon his interests. The burden of proof is on the person who pleads that the testator was of unsound mind, when he executed the Will. In the case on hand, the burden of proof is on the plaintiffs, particularly when the evidence adduced by the plaintiffs themselves shows that Prabhhakaran was of sound mind till his retirement and during the period of Exts.A10 to A12, but he was not of sound mind at the time when he executed the Will.
16. Let us analysis the facts of the instance case in view of the above analysis of law. Prabhakaran was a Government employee. P.W.1, while cross-examining him, admitted that Prabhakaran was of unsound mind after his retirement. Put it differently, according to the plaintiffs, R.S.A. Nos. 646 & 1038 of 2009 -: 17 :- Prabhakaran was of sound mind till his retirement on superannuation. It has come out in evidence that the Will had been executed just two years after his retirement and at that time he was aged 62 years. A person, who was employed in Government service and continued, as such, till his retirement on superannuation, can be reasonably presumed to be a man of sound mind till his retirement, unless the contrary is proved? The plaintiffs themselves produced three documents in the appellate court which were marked as Exts.A10 to A12. Exts.A10 to A12 which clearly prove that the deceased Prabhakaran, against whom the plaintiffs have alleged unsoundness of mind, himself executed sale deed Nos.1455/1989, 2390/1991 and 1167/1987 during the period from 1987 to 1991, after the execution of the disputed Will. Thus, the plaintiffs themselves admitted that the deceased Prabhakaran was of sound mind during the above period. So, even according to the case of the plaintiffs, Prabhakaran was usually of sound mind; but occasionally of unsound mind, particularly, during the period when he allegedly executed the disputed Will, after his retirement only. If that be so, it was incumbent R.S.A. Nos. 646 & 1038 of 2009 -: 18 :- upon the plaintiffs to prove that, at the time of execution of the alleged Will, Prabhakaran was of unsound mind. In Subramaniyam and Others v. Ramachandran and others (AIR 1996 Kerala 64), this Court held that in the absence of initial evidence on the part of the plaintiffs, who disputed the Will, the propounders of the Will need only prove the execution of the Will.
17. So, the questions to be considered are whether the plaintiffs have succeeded in proving that the testator of the Will Prabhakaran was of unsound of mind at the time of execution of the Will. Put it differently, the question is whether the plaintiffs have succeeded in proving that Prabhakaran was incapable of understanding the contents of the Will and of forming rational judgment as to its effect upon his interest. No documentary evidence had been adduced to show that he was undergoing any kind of treatment for the unsoundness of mind or for any kind of mental incapacity or abnormality. Similarly, no independent witness had been examined to prove the alleged unsound mind of Prabhakaran. But, at the same time, P.W.1 himself claimed in his evidence that Prabhakaran had been residing R.S.A. Nos. 646 & 1038 of 2009 -: 19 :- with him in his house and he had been undergoing ayurvedic treatment of one ayurvedic doctor for mental incapacity and he used to accompany him to the hospital for treatment. Though, he further claimed that he himself used to accompany him to the ayurvedic doctor till his death, he does not remember the name of the doctor under whom Prabhakaran was undergoing treatment for mental abnormality or his pharmacy. He failed to produce even a scrap of paper in writing given by the said doctor to Prabhakaran. In the absence of any kind of evidence - both oral and documentary, except the self-serving deposition of P.W.1, I also have no hesitation to arrive at a finding that the plaintiffs miserably failed to prove that the deceased Prabhakaran was of unsound of mind or he was suffering from any kind of mental abnormality or incapacity at the time when he executed the disputed Will. This finding is fortified by the subsequent execution of three registered documents by him, during the period of 1987 to 1991.
18. The next question to be considered is whether the Will had been executed in statutory compliance with statutory requirements contemplated under Sec.63 of the R.S.A. Nos. 646 & 1038 of 2009 -: 20 :- Indian Succession Act. According to Sec.63 of the Indian Succession Act, a Will is required to be attested by two or more witnesses each of whom has seen the testator signing or affixing his mark on the Will or has seen some other person signing the Will in the presence and by the direction of the testator or has received from the testator a personal acknowledgement of the signature or mark or his signature or the signature of such other person and that each of the witnesses has signed the Will in the presence of the testator. So, in order to prove the execution of the Will, it is absolutely necessary that the testator must have singed the Will in the presence of the attestors or the testator must have personally acknowledged his signature in the presence of attestors. Besides, it must be proved that two attesting witnesses have seen the testator sign and they signed in the presence of the testator.
19. Let us analyse the evidence, keeping in view of the said legal position. As regards execution of the Will, registration and attestation are determinative factors. Ext.B1 is a registered Will. As regards the registration of the Will, while arguing the case, it is argued that the registration R.S.A. Nos. 646 & 1038 of 2009 -: 21 :- was made by way of impersonation. But the appellants have no such case either in the pleadings or in the evidence. The legal position well settled in Ram Sarup Gupta v. Bishun Narain Inter College [1987 (2) SCC 555] is that in the absence of pleadings, evidence, if any, produced by the parties cannot be considered. It is equally settled that no party should be permitted to travel beyond his pleadings and all material facts must be pleaded in support of the case set up by him. In Nagubai v. B. Shama Rao (AIR 1956 SC 593), the Apex Court held that no amount of evidence can be looked into upon a plea which was never put forward or raised in the pleadings. What is the legal presumption to be drawn from the registration of a document? In K.M. Varghese v. K.M. Oommen (AIR 1994 Kerala 85), this Court held as follows:
"41. Section 40 of the Indian Registration Act refers to persons entitled to present wills and authorities to adopt. The testator can also present the will to a Registrar or Sub-Registrar for registration. Section 41(1) of the Indian Registration Act provides that : "A will..............presented for registration by the R.S.A. Nos. 646 & 1038 of 2009 -: 22 :- testator................ may be registered in the same manner as any other document. Section 41(2) provides that in the case of registration of a Will presented for registration by any other person entitled to present it shall be registered if the Registering Officer is satisfied (a) that the Will or authoritywas executed bythe testator or donor. (Emphasis added) as the case may be, (b) that the testator or donor is dead; and (c) that the person presenting the will or authority is, under S. 40, entitled to present the same. From S. 41 of the Indian ' Registration Act, it is clear that if a Will is sought to be registerd by presenting it by the testator, it has to be registered in the same manner as any other document. Detailed procedure is prescribed for registration of documents. Section 34 of the Indian Registration Act is significant. It is provided in cl. (1) of S. 34 of the Indian Registration Act that no document shall be registered under the Act, unless the persons executing such document appear before the registering officer within the time allowed for presentation under Ss. 23, 24, 25 and 26. Section 34 (3) of the Indian Registration Act provides that the registering officer shall, on presentation of the document after satisfying all the formalities, "(a) enquire whether or not such document was R.S.A. Nos. 646 & 1038 of 2009 -: 23 :- executed by the persons by whom it purports to have been executed; (b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document:
and (c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear".
(Emphasis added)
42. Section 35 of the Indian Registration Act prescribes the procedure on admission and denial of execution respectively. Section 35(1)(a) provides that "If all the persons executing the document appear presonally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent to be, and if they all admit the execution of the document................. the registering officer shall register the document as directed in Ss. 58 to 61". Section 58 of the Indian Registration Act deals with the procedure on admitting to registration. On every document admitted to registration, other than a copy of a decree or order, or a copy sent to a registering officer under S. 89, there shall be endorsed from time to time the following particulars, namely:- (a) R.S.A. Nos. 646 & 1038 of 2009 -: 24 :- the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent. Section 59 of the Indian Registration Act mandates that the registering officer shall affix the date and his signature to all endorsements made under Sections 52 and 58 relating to the same document and made in his presence on the same day. Under Section 60 of the Indian Registration Act after complying with such of the provisions of sections 34, 35, 58 and 59 as apply to any document presented for registration the registering officer shall endorse thereon a certificate containing the word "registered", together with the number and page of the book in which the document has been copied. Section 60(2) of the Indian Registration Act provides that such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by the Act, and that the facts mentioned in the endorsements referred to in Section 59 have occurred therein mentioned. The certificate under Section 60(2) of R.S.A. Nos. 646 & 1038 of 2009 -: 25 :- the Indian Registration Act is admissible to prove the facts mentioned in the endorsements, namely, the facts set forth in Section 52(1) (a) and Section 58(1). It has to be remembered that a certificate of registration endorsed on a document is prima facie evidence that the requirements of the Act have been complied with and it is for the party who challenges the registration to prove any act or omission which would invalidate the registration. It is true that the mere registration of a document, selectively a will is not sufficient in proof of its due execution, but the certificate endorsed by the registration officer on the document is admissible to prove that the executant was of sound mind - vide AIR 1962 AP 29 (Venkata Rama Rao v. Bhaskararao. In a Madras decision reported in AIR 1973 Mad 421 Irudayam Ammal v. Salayath Mary it has been held that registration by itself in all cases is not proof of execution, but if no other evidence is available, the certificate of the registration is prima facie evidence of its execution and the certificate of the registering officer under Section 60(2) is relevant for proving execution. A certificate of registration requires no further proof and the evidence of the Registrar is not necessary. Its genuineness must be presumed R.S.A. Nos. 646 & 1038 of 2009 -: 26 :- under Section 79 of the Evidence Act - see AIR 1963 Raj 234 (Govind Ram v. Abdul Wahab. We are not unmindful of the fact that the certificate would not enable the court to presume animus at factum (combination of intention with the act) on the part of the executant - see AIR 1977 Ker 54 Beepathumma v. Mohammed Nakoor Meera Rowther. It is conceivable with the aid of illustration (e) of Section 114 of the Evidence Act the court could also presume that the Official act of registration has been regularly performed and that the facts mentioned in the endorsements have occurred as mentioned therein. Certainly we cannot forget the fact that we are dealing with the proof of a will for which a particular mode of proof is prescribed in Section 68 of the Evidence Act."
Certainly, I cannot forget the fact that I am dealing with the proof of the Will for which a particular mode of proof is prescribed in Sec.68 of the Evidence Act. But a registered Will is presumed to be having registered in due compliance with the Registration Act and Rules made thereunder, unless any circumstances contrary to the said presumption is brought out in evidence, which is supported by pleadings. In the instance case, no material either in pleadings or in R.S.A. Nos. 646 & 1038 of 2009 -: 27 :- evidence to rebut the above legal presumption. In Purnima Debi v. Khagendra Narayan (AIR 1962 SC 567), the Apex Court observed that if a Will has been registered, that is a circumstance which may prove its genuineness, unless the contrary is proved or the Will is surrounded by suspicious circumstance. Here already I have found that there is no suspicious circumstance doubting the genuineness of the Will. But the appellants contended that P.W.2 - the attesting witness, admitted in cross-examination that he cannot correctly say whether Prabhakaran himself put the signature. But going by the preceding portion of the deposition, as a whole, it could be inferred that what he intended was that he could not make any verification as to the identity of Prabhakaran. It is true that, being an assistant in the office of Thankppan Nair, who prepared and scribed the Will, he is not expected to make a further verification as to the identity of the testator more than the satisfaction of his senior who scribed the Will. To me, the deposition of P.W.2 appears to be quite natural and believable. But, at the same time, it is pertinent to note that he unequivocally deposed that Ext.B1 Will was one executed by Prabhakaran and he didn't R.S.A. Nos. 646 & 1038 of 2009 -: 28 :- feel any kind of mental or abnormality at the time of execution of the Will. What is the standard of proof required in evaluating the evidence of attesting witness in a Will? In K.M. Varghese v. K.M. Oommen (AIR 1994 Kerala 85), this Court held as follows:
52. In considering the evidence of the attesting witness for the purpose of proving the will, we feel that we have to take into account all the circumstances and we must not be persuaded by the vague statements of the witnesses to hold that the will has not been proved properly. We are of the opinion where the evidence of the attesting witnesses is vague, indefinite, doubtful or even conflicting upon material points, the court is entitled to consider all the circumstances of the case and judge collectively therefrom, whether the requirements of the statute have been complied with, it is possible for the court on an examination of the entire circumstances and evidence to come to a conclusion that the recollection of the witnesses is at fault or that their evidence is suspicious or that they are wilfully misleading the court and, therefore, the court is obliged to pronounce in favour of the will, disregarding the testimony of the witnesses. R.S.A. Nos. 646 & 1038 of 2009 -: 29 :-
20. Moreover, the appellants' new case of impersonation set up in the Second Appeals would defeat the case which the plaintiffs have already pleaded. It is the specific case that at the time of execution of the Will, Prabhakaran was not of unsound mind. As I stated above, in the pleadings, the plaintiffs have no case that the Will was executed by some other person by way of impersonation.
The plaintiffs themselves in the pleadings admitted that the Will was executed by Prabahakran; but he was not of sound mind at that time. The simultaneous plea of impersonation and unsoundness of mind are mutually opposed and destructive as both pleas are unsustainable at a time. It appears that even in the Second Appeal stage the plaintiffs are groping in dark doubting the genuineness of the Will and the same is evident from raising mutually destructive pleas. Going by the deposition of D.W.2, it is seen that he has testified in conformity with the statutory requirements under Sec.63 of the Indian Succession Act as an attesting witness.
21. The next question to be considered is whether the Will has been proved in accordance with Sec.68 of the Evidence Act? To prove the Will, according to Se.68 of the R.S.A. Nos. 646 & 1038 of 2009 -: 30 :- Evidence Act, the statutory requirement is that, if a document is required by law to be attested it shall not be used as evidence unless one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive. Regarding the mode of proving the Will, the apex Court in H. Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443) held that 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. Here D.W.2 has been called for and examined for this purpose. As indicated above, his evidence in court is in conformity with Sec.63 of the Indian Succession Act i.e., attestation was effected as contemplated under Sec.63 of the Indian Succession Act. Moreover, he has no doubt about the mental capacity of the testator. Thus, I find that Ext.B1 Will was executed in conformity with Sec.63 of the Indian Succession Act and the same is proved in accordance with Sec.68 of the Evidence Act. There is no evidence on record to doubt the genuineness of the Will and I reject the entire allegations of R.S.A. Nos. 646 & 1038 of 2009 -: 31 :- the plaintiffs against the genuineness of the Will.
22. Coming to 'B' schedule property, the trial court passed a decree setting aside Ext.A2 sale deed on a finding that Ext.A2 sale deed in favour of the 4th defendant is not binding on the plaintiffs' right, title and interest over 'B' schedule property. That apart, the plaintiffs are allowed to recover possession of 'B' schedule property from the 4th defendant and consequential prohibitory injunction was passed restraining the 4th defendant from creating any document in respect of 'B' schedule property. But in A.S.No.319/06, the lower appellate court modified the decree passed by the trial court by passing a decree declaring that Ext.A2 sale deed is not binding on the plaintiffs, their respective interest, title and possession over 'B' schedule property and also by passing a permanent injunction restraining the defendants from committing any kind of waste in plaint 'B' schedule property. In short, recovery of possession granted by the trial court was set aside on a finding that defendants 2 and 3 are co-owners of 'B' schedule property, even if they are illegitimate children of the deceased Prabhakaran.
R.S.A. Nos. 646 & 1038 of 2009 -: 32 :-
23. The crux of the argument advanced by the learned counsel for the cross-appellant in cross-objection is that all the subsequent acquisitions of the testator would come under the residuary clause in Ext.B1 Will. The learned counsel, in support of the above argument, drew my attention to the residuary clause specifically incorporated in the Will. In short, in the light of the residuary clause, 'B' Schedule property shall be deemed to be bequeathed in favour of the defendants. But the courts below failed to interpret the residuary clause in its correct perspective.
24. The first question to be considered is whether 'B' schedule property also had been bequeathed in favour of 2nd and 3rd defendants under Ext.B1 Will. Both the courts below arrived at a concurrent finding that 'B' schedule property was not bequeathed in favour of 2nd and 3rd defendants under Ext.B1 Will. The learned counsel for the cross-appellant challenged the concurrent findings and contended that 'B' schedule property is also covered by the residuary clause in Ext.B1 Will. Admittedly, the Will was executed in the year 1982 and Prabhakaran acquired the 'B' Schedule property in the year 1989 only. It is true that there are two residuary R.S.A. Nos. 646 & 1038 of 2009 -: 33 :- clauses in the Will. But both clauses are confined to then existing property, if any, which is not specifically included in the Will. There is no residuary clause enabling to encompass all future acquisitions in Ext.B1 Will. As far as dispossession of future acquisition, there must have clear, unambiguous disposing clause manifesting the Will of the testator, disposing all future acquisitions in favour of the propounder of the Will. But it is conspicuously absent in Ext.B1 Will, though these two clauses encompasses disposition of residuary properties existing at the time of execution.
25. Above finding is further supported by Ext.A2 sale deed transferring 'B' schedule property in favour of the 4th defendant. In Ext.A2 sale deed as regards devolution of 'B' schedule property, the defendants claimed that they got the property by way of inheritance as the sole successors of the deceased Prabhakaran. They have no claim that they got the property under Ext.B1 Will. In the above view, I also concur with the findings of the court below that 'B' schedule property is not bequeathed in favour of the defendants under the Will.
R.S.A. Nos. 646 & 1038 of 2009 -: 34 :-
26. Indisputably, plaintiffs are the legal heirs of the deceased Prabhakaran, born to him in his legally valid marriage and their right over 'B' schedule property is undisputed and it cannot be taken away by any illegal dispossession of 'B' schedule property. Are the defendants 2 and 3 also the legal heirs of the deceased Prabhakaran? I have already found that Ext.B1 Will is a valid Will in the eye of law. In the Will Prabhakaran himself made a declaration that defendants 2 and 3 are his children born in the 1st defendant. Though there is no legal marriage, in the Will, 1st defendant is stated as his second wife and the status of the 2nd and 3rd defendants are stated as his children. However, as rightly held by the lower appellate court, 2nd and 3rd defendants are also entitled to inherit 'B' schedule property along with the plaintiffs, even if they are illegitimate children. In short, they are also co-owners with respect to 'B' schedule property.
27. As rightly found by the 1st Appellate Court, since 2nd and 3rd defendants are co-owners, in so far as 'B' schedule property is concerned, the sale deed, if any, executed by the defendants 1 to 3 in favour of the 4th defendant will stand as R.S.A. Nos. 646 & 1038 of 2009 -: 35 :- good in so far as share of 2nd and 3rd defendants are concerned, as the said transfer with respect to their right cannot be set aside. It is to be borne in mind that illegitimate children are also have a right of inheritance and they are entitled to get one share each in 'B' schedule property. However, Ext.A2 sale deed is not binding on the plaintiffs with respect to their share over 'B' schedule property. As rightly held by the appellate court, 1st defendant cannot claim such a right unless and until she proves valid marriage. When the defendants 2 and 3 also found co-owners, prayers for recovery of possession from them or 4th respondent and prohibitory injunction except against committing waste, are unsustainable under law. In the above circumstances, considering the right of co- ownership of 2nd and 3rd defendants, the lower appellate court rightly modified the decree passed by the trial court, setting aside the right of recovery, possession and prohibitory injunction, except committing waste.
28. There is no illegality or impropriety in the impugned judgment passed by the lower appellate court which is under challenge in the Second Appeals. Similarly, I R.S.A. Nos. 646 & 1038 of 2009 -: 36 :- do not find any kind of perversity in the appreciation of evidence. There is no reason to interfere with the findings of the lower appellate court.
In the result, both the appeals and the cross-objection in R.S.A. No.1038/2009 are dismissed. The parties shall suffer their respective costs.
Sd/-
(K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge