Kerala High Court
Bhargavi Kovil vs Ramachandran Nair on 20 June, 2008
Bench: P.R.Raman, T.R.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
AFA.No. 3 of 2001()
1. BHARGAVI KOVIL
... Petitioner
Vs
1. RAMACHANDRAN NAIR
... Respondent
For Petitioner :SRI.P.G.RAJAGOPALAN
For Respondent :SRI.V.CHITAMBARESH (SR.)
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :20/06/2008
O R D E R
P.R. RAMAN & V. K. MOHANAN, JJ.
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A.F.A. NOS. 3, 4 & 5 OF 2001
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DATED THIS, THE 20TH DAY OF JUNE, 2008.
J U D G M E N T
Raman, J.
All the above appeals arise out of the common judgment rendered by the learned Single Judge. A.F.A. 3/2001 is preferred against the judgment and decree passed in A.S. 591/1993 and Cross Objection, AFA 4/2001 arises out of A.S. 931/1997 and AFA 5/2001 arises out of the judgment and decree in A.S. 590 and 652/1993 and A.S. 212/1994. The appellants in A.F.A. 3/2001 are the plaintiffs 2 to 5 in O.S. 21/1984 and the appellants in A.F.A. 4/2001 are defendants 1, 4, 5 and 8 in O.S. 81/1987. The appellants in A.F.A. 5/2001 are the plaintiffs 2 to 5 and the legal heirs of the first defendant in O.S. 23/1984.
2. O.S. 21/1984 is a suit for partition filed by one Karunakara Menon as the sole legal representative of his wife Karthiayani Amma. Supplemental plaintiffs 2 to 5 were brought on record on the strength of assignment Ext.A24 executed by Karunakara Menon, dated 27.9.1985. O.S. 23/1984 was also filed by the said Karunakara Menon for recovery of possession of property and O.S. 81/1987 was filed by one Ramachandran AFA NOS. 3,4 & 5/2001 :2: Nair and others for injunction and recovery of possession of suit property on the strength of title. The trial court passed a preliminary decree for partition in O.S. 21/1984. O.S. 23/1984 which was filed for recovery of possession was also decreed in favour of the plaintiffs and consequently, O.S. 81/1987 was dismissed. Virtually, the contesting defendants in O.S. Nos. 21/1984 and 23/1984 are the plaintiffs in O.S. 81/1987. The suit property in O.S. 21/1984 is H schedule item of a partition deed dated 23.9.1959.
3. Plaint A schedule property in O.S. 81/1987 are items 1 to 6 of H schedule in Ext.B1 partition deed. Plaint A and B schedule properties in O.S. 23/1984 are E schedule items of Ext.B1 partition deed. B schedule items are stated to be in the possession of tenants. Plaint E schedule of Ext. B1 partition deed was allotted to Karthiayani Amma exclusively and H schedule in Ext. B1 partition deed was allotted to Karthiyani Amma along with others in group excluding Sivaramakrishnan Nair. Thus, partition is sought in respect of H schedule and recovery is sought for in respect of E schedule. Karthiayani Amma executed a Will Ext. B17 dated 9.1.1973. She died on 17.4.1973. As per Ext.B17, she bequeathed the rights over the properties allotted to her in the partition in favour of Ramachandran Nair, one of her brothers and this Ramachandran Nair is the 3rd defendant in O.S. AFA NOS. 3,4 & 5/2001 :3: 21/1984 and second defendant in O.S. 23/1984. Ramachandran Nair claims that he is the sole legatee under Ext.B17. Karunakara Menon, the husband of Karthiayani Amma was her sole legal heir who was alive at the time of Ext. B17 as also at the time of her death. Karunakara Menon died in 1985 after the institution of the suit. Before his death he assigned his rights over the plaint schedule properties to the supplemental plaintiffs in the respective suits. Based on the Will Ext. B17, Ramachandran Nair assigned some of the properties and the assignees are Defendants 3 to 5, 7 to 9 and 16 to 24 in O.S. 23/1984.
4. As against the preliminary decree passed in O.S. 21/1984, the contesting defendants filed A.S. 591/1993 in which a cross objection was filed by Defendants 5,6 and 7 seeking larger share. Defendants 1 and 2 in O.S. 23/1984 filed A.S. 590/1993. In the same suit, defendants 3 to 24 have filed A.S. 212/1994. Plaintiffs in that suit filed A.S. 652 of 1993 questioning the value of improvements fixed thereon. Plaintiffs in O.S. 81/1987 filed A.S. 931/1997. All the first appeals and cross objections were disposed of by a common judgment by the learned Single Judge. Since these appeals have been preferred against the common judgment rendered in those appeals, we dispose of them by this common judgment.
5. The main dispute centers round the genuineness of Ext. B17 Will. AFA NOS. 3,4 & 5/2001 :4: The trial court found that the Will is not genuine which is the basis for decreeing the suits O.S. 21 and 23 of 1984. The learned Single Judge held that the Will Ext. B17 set up by Ramachandran Nair is valid and genuine and it was held that H schedule items in Ext. B1 were treated as separate property allotted in common to eight members and not treated as tavazhi property. The decree of the court below was modified and A.S. 591/1993 was allowed by passing a preliminary decree in O.S. 21/1984 for partition and separate possession, allotting two shares to 3rd defendant, one share to 4th defendant and 5 shares to defendants 5,6 and 7. A.S. 590/1993 and A.S. 212/1994 were allowed and A.S. 652/1993 and cross objections in A.S. 591/1993 were dismissed. Consequently, O.S. 23/1984 on the file of the Sub Court, Tirur stood dismissed. A.S. 931/1997 was allowed by decreeing the suit O.S. 81/1987 on the file of the Sub Court, Tirur.
6. The learned counsel Sri. Rajagopalan, appearing on behalf of the appellants in the above appeals contended as follows: Ext. B17 Will is not genuine and there are suspicious circumstances regarding the dis- inheritance of the husband by the testator. The two attestors and the scribe were brought down from Tirur, 15 kms. away from Kuttippuram where the Will was allegedly executed. The testator was terminally ill on account of cancer who was discharged from the hospital at Madras as a hopeless case AFA NOS. 3,4 & 5/2001 :5: and as on the date on which the Will was executed, she was in a Nursing home at Tirur. Though it was contended that Ramachandran Nair, who was examined as DW.1, was the favourite brother of the testator which is stated to be a reason for executing the Will in his favour, there is no evidence to that effect. The plaintiff Karunakara Menon alleged that the Will was a forged one and the trial court had compared the signature in the Will with the admitted signature of Karthiayani Amma and held that the signature does not tally, which should not have been interfered with by the learned Single Judge. Even though this Court held that such a comparison would not have been done, the learned Single Judge has ultimately compared the signature for upholding the Will. The place of assignment/execution is conspicuously absent in the Will Ext. B17.
7. The learned counsel also took us to the evidence of DW.2, DW.3 and DW4 in support of these contentions. He also attacked the finding based on Ext. B28 - a diary of Damodaran Nair (the brother of the testator and legatee) inter alia contending that no reliance could be placed on the same since according to him, it has no probative value and it is not kept in the usual course of business.
8. Sri. R.D. Shenoy and Sri. Krishnan Unni,learned Senior counsel appearing for the contesting respondents, on the other hand, supported the AFA NOS. 3,4 & 5/2001 :6: judgment of the learned Single Judge. According to the learned Senior counsel Sri. Krishnan Unni, after the purchase of the undivided share from Karunakara Menon as the sole legal heir, Sivaramakrishnan, his wife and children became co-sharers which necessitated the filing of O.S. 81/1987. According to him, Ramachandran Nair, the legatee had instituted O.S. 186/1973 before the Munsiff's Court, Tirur, against his elder brother Damodaran Nair which was a suit for injunction in respect of an item in E schedule. Exts. B2 to B5 would show that the said suit was ultimately settled and Ext. B17 Will was produced in the said case as document No.1. Therefore, he contended that the allegation that Ext. B17 Will was produced for the first time in the present suit without divulging it earlier is an unfounded allegation as the Will was produced even in an earlier suit of the year 1973. It is also his contention that Ramachandran Nair, as the legatee under the Will, had assigned various items of properties as per Ext.B6, B9, B10, B11, B13, B14 and B15 which were all transfers in favour of strangers based on the Will and they were also put in possession. Ext. B6 is of the year 1978. Exts. B9 and Ext. B10 are of the year 1979 and the other documents are of the years 1982, 1983 etc. According to him, the plaintiffs were well aware of those assignments and they were dealing with the property as though Ramachandran Nair is the legatee AFA NOS. 3,4 & 5/2001 :7: entitled to the property and despite these, the suit was filed only in the year 1984, several years after those assignments, after winning over Karunakara Menon. According to him, the plaint averments itself would admit the fact that Sivaramakrishnan and Rugmini Amma were in possession and Sivaramakrishnan died only on 9.8.1983 and after his death his wife and children continued to reside in the building which necessitated the filing of the suit O.S. 81/1987. The suit O.S. 81/1987 was originally filed as O.S. 154/1983 before the Munsiff's Court, Tirur which was later transferred to the Sub Court and re-numbered as O.S. 81/1987. It is only later that the other two suits were filed by the plaintiffs seeking partition and setting up contentions against the Will. According to him, it was Damodaran Nair who was managing the properties and in 1973 he transferred his right to one of his sisters and left management. Though Sivaramakrishnan Nair was not allotted any property as per Ext.B1 he was put in management and he and his wife started residing at Melepattu tharvad which is item No.1 in B schedule. It was after the death of Sivaramakrishnan Nair in 1983 that his children continued to reside therein and in spite of requests made to vacate the premises they did not do so which necessitated the filing of O.S. 154/1983 before the Munsiff's court, Tirur. Later, as stated earlier, the said suit was transferred to the Sub Court, Thirur and re-numbered as O.S. AFA NOS. 3,4 & 5/2001 :8: 81/1987. It is as a counter blast to this, that O.S. 21/1984 was filed for partition and the other suit O.S. 23/1984 for an injunction, by Karunakara Menon. It is after one year of filing the suit that Karunakara Menon transferred his rights in favour of the supplemental defendants/plaintiffs by Ext.A24 document dated 24.9.1985 and in 1986 when Karunakara Menon died these supplemental defendants came on record as assignees. According to him, even after production of the Will there was no dispute with regard to the signature and if as a matter of fact, the witness had come from Tirur and he was believable, the question as to why they came from Tirur becomes irrelevant. He also referred to the deposition of DW1 , DW2, DW3 and DW4 in answer to the contentions raised by the appellants. He also laid emphasis on the certification made in Ext. B17 by the attester. He also contended that there is nothing wrong in accepting Ext. B28 diary since the words " in the ordinary course of business" is to be given a wider meaning. Ext. B28 is a diary maintained by Damodaran Nair and his wife is a party in the partition suit and it was with noticie to her that the diary was marked in the case. Various entries in Ext. B28 would clearly show that Karthiayani Amma was not in any hospital on the date on which the Will was executed and there is no suspicious circumstances as alleged by the plaintiff.
AFA NOS. 3,4 & 5/2001 :9:
9. Learned counsel Sri. R.D. Shenoy placed reliance on the deposition of DWs 1 and 2 and contended that even according to DW1, Karthiayani Amma was in Madras and she was brought back on 8.1.1973 and Ext. B17 was executed on 9.1.1973. In the absence of any contra evidence the presumption is that the document was executed on the date it bears. The burden is on the person who disputes the date of execution to show that the document was executed on a date other than the date shown on it and they have not discharged their burden. According to him, the mere fact that the normal line of succession is interfered with and the husband was disinherited in no way will affect the genuineness of the Will since the Will is to alter the mode of normal succession and if a person intends to pass on the property to the natural heir, there is no need for executing a Will. Thus, the fact that natural line of succession was disrupted is not a suspicious circumstance at all. It was contended that the testator did not want the property to go to another family and the parties were following the marumakkathayam law of succession until replaced by the Hindu Succession Act, 1956. In 1959 when the partition took place the parties ensured that the properties shall not go to anyone outside the marumakkathayam family. Since Karunakara Menon and Karthiayani Amma had no issues naturally, after the death of Karunakara Menon, the AFA NOS. 3,4 & 5/2001 :10: property would have reached the hands of his brothers who were outside the thavazhi of Karthiayani Amma and this is perhaps the reason which induced Karthiayani Amma to execute the Will, so that the line of succession is not disrupted.
10. Learned counsel Sri. V. Chidambaresh, appearing on behalf of Defendants 6 and 7 contended that the reservation in favour of his clients may not be interfered with as the appellate court itself has not thought it fit to do so and generally supported the contention of the contesting respondents.
11. We may now advert to the pleadings made by the parties. As per the plaint allegations in O.S. 21/1984, plaint A schedule property was allotted to the share of deceased Karthiayani Amma and others as per the partition deed No. 1256/1959, which is Ext.B1 produced in the case. Plaint A schedule was the property allotted to the share of Karthiayani Amma, her brothers Damodaran Nair, Ramachandran Nair, Rugmini Amma, Parukutty Amma and Kamalakshi Amma. Kamalakshi Amma is the daughter of Parukutty Amma. Raghuraman and Ramadevi are the children of Kamalakshy Amma. Plaint B schedule are the movable properties kept in the building situated at items 1 to 4 and 7 of A schedule property. Plaint A schedule situates at Perasannur and item Nos. 7 to 10 AFA NOS. 3,4 & 5/2001 :11: situate at Kuttipuram. According to the plaintiffs Karthiayani Amma expired without leaving behind any children, father or mother. She did not execute any testamentary disposition. So, after the death of Karthiayani Amma, first plaintiff Karunakara Menon became her sole surviving heir. He shifted his residence from Kuttippuram to Kozhikode after entrusting E schedule property, which is the exclusive property allotted to Karthiayani Amma as per Ext. B1 partition deed, for management to defendants 3 and 4 and they were managing E schedule property and H schedule property of the partition deed. Since the defendants did not hand over management even on requests made by the plaintiff, they issued a notice to which defendants sent a reply contending that Karthiayani Amma had executed a Will on 9.1.1973 bequeathing all her properties in favour of the third defendant who got possession and ownership of the property left behind Karthiayani Amma. But according to the plaintiffs no such Will was executed by Karthiayani Amma and there was also no reason to execute such a Will excluding Karunakara Menon from inheriting her properties. The marriage of Karthiayani Amma and Karunakara Menon was in the year 1950 and thereafter, the first plaintiff was usually going to the residence of Karthiayani Amma at Kuttippuram and after his retirement in 1968 he was residing with Karthiayani Amma. Karthiayani Amma was suffering AFA NOS. 3,4 & 5/2001 :12: from uterus cancer which was not disclosed to her and it is the first plaintiff who took her to various hospitals at Tirur, Trichur, Kozhikode, Madras etc. at his own expenses. Since her health condition did not improve Karthiayani Amma was taken from the hospital at Madras to her residence at Kuttippuram in January, 1973 and again she was taken to Tirur Nursing Home by the first plaintiff and later, to the Medical College Hospital, Kozhikode. But her health condition did not improve and she was taken back to her residence at Kuttippuram and she expired on 17.4.1973. It was the first plaintiff who treated Karthiayani Amma by spending his own funds. During that period she was not in a position to understand the nature of the acts done by her and she was mentally and physically unable to understand the things she was doing. The Will alleged is a fabricated document in order to snatch away the properties of Karthiayani Amma. After the institution of the suit, Karunakara Menon died as noticed earlier. The second plaintiff purchased the property of Karunakara Memon on 27.9.1985 alleged to be for full consideration with bona fide intention. Subsequently, plaintiffs 2, 3 and 4 entered into a partition and the plaint schedule properties were allotted to the share of plaintiffs 3,4 and 5. The legal heirs of Karunakara Menon were impleaded as supplemental defendants 11 to 14. They have no right on the plaint AFA NOS. 3,4 & 5/2001 :13: schedule property. Plaintiffs are entitled to 2/16 share of the properties by metes and bounds.
12. Defendants 3 and 4 in their written statement contended that the suit is not maintainable, that plaint B schedule is not available for partition as they are not properties belonging to Karthiayani Amma and others, that the averment that Karunakara Menon was looking after the affairs of Karthiayani Amma is wrong, that Karunakara Menon and Karthiayani Amma did not reside at Kuttippuram togethehr, that Karthiayani Amma and others got H schedule property as per the partition deed, that husband and wife relationship between Karunakara Menon and Karthiayani Amma was only nominal, that actually Karthiayani Amma was looked after by her brothers , that she was in intimate terms with the 3rd defendant who received all affection from her more than that of a brother, that Damodaran Nair - the other brother of Karthiayani Amma married the sister of Karunakara Menon who subsequently, in 1958 he divorced her, that because of this, Karunakara Menon and Karthiayani Amma were not on good terms, that Karthiayani Amma executed the will bequesting all her properties in favour of the third defendant on 9.1.1973 fully knowing the contents of the same and the Will was executed in the presence of witness, that after executing the Will Karthiayani Amma died on 17.4.1973, that the AFA NOS. 3,4 & 5/2001 :14: averment that the property was entrusted by Karunakara Menon with defendnants 3 and 4 is denied, that it is not correct to say that Karunakara Menon took Karthiayani Amma to various hospitals for treatment, that Karthiayani Amma was taken to Medical College Hospital, Kozhikode in February, 1973 by the 4th defendant and her brother Sivaramakrishnan, that it is not correct to say that Karthiayani Amma was physically and mentally not well, that she was physically and mentally sound, that the Will is not a fabricated one, that the same was executed with the intention to give the properties to the third defendant who was in intimate terms with Karthiayani Amma and that the plaintiff is not entitled to get any share in H schedule property. In their additional written statement they have also contended that in the event of partition, their share may be separately allotted. H schedule properties of the partition deed were allotted jointly to executant Nos. 1 and 3 to 9, that the executants have no right to alienate the property and even if it is seen that the will executed in favour of Ramachandran Nair is not genuine, the plaintiffs are not entitled to get any share in the plaint schedule properties.
13. Defendants 5 and 7 in their written statement would contend that H schedule is allotted to the thavazhi, that the after born children are entitled to inherit the properties, that the 7th defendant, who was born after AFA NOS. 3,4 & 5/2001 :15: the year 1959 is also entitled to get a share and that the 3rd defendant has to establish that Karthiayani Amma had executed a Will in his favour. The8th defendant would contend that he purchased the properties mentioned in the written statement by sale deed of the year 1983 by giving full consideration and with bonafide intention.
14. The suit O.S. 23/1984 is a suit for recovery of possession on the strength of title. The material allegations contained in the plaint are almost the same as that are contained in O.S. 21/1984 and it is not necessary to reiterate the same. Defendants 1 and 2 are respectively defendants 4 and 3 in O.S. 21/1984. They have raised the same contentions as contained in their written statement filed in O.S. 21/1984. The other defendants have also filed written statement raising similar contentions. The 6th defendant would contend that he purchased item No.11 of plaint A schedule property by the sale deed of the year 1979 under bona fide belief and after payment of full consideration, from Ramachandran Nair. He got jenm purchase certificate in respect of 11 cents of A schedule property from the Land Tribunal as per suo motu proceedings initiated and has also started a saw mill in the property. He made improvements in the property and he claimed protection under Section 51 of the Transfer of Property Act. Defendants 3, 7,8 and 9 filed written statement and contended that they have also AFA NOS. 3,4 & 5/2001 :16: purchased properties from Ramachandran Nair on the strength of the Will executed by Karthiayani Amma.
15. O.S. 81/1987 filed by Ramachandran Nair is for a permanent prohibitory injunction in respect of plaint A schedule property and recovery of possession of plaint B schedule on the strength of title. Originally the suit was laid before the Munsiff's Court, Tirur as O.S. 154/1983 which stood transferred to the Sub court, Tirur, to be tried along with the other suits. The plaint averments are as follows: The plaint schedule properties along with other properties were set for partition and H schedule of the partition deed was allotted to executant No.1 and 3 to 9 together. Defendants 1 to 8 are the children of Sivaramakrishnan who was executant No.2 in the above partition deed. The first plaintiff is executant No.3, 2nd plaintiff is executant No.4, 3rd plaintiff is executant No. 7 and 4th plaintiff is executant No.9 of the said partition deed. Karthiayani Amma was executant No.5 of the partition deed who had executed a registered Will bequesting all her properties in favour of Ramachandran Nair. Sivaramakrishnan Nair had no right over H schedule property and Damodaran Nair sold his right in H schedule property in favour of the plaintiffs 3 and 4 and defendant No.9 and hence he has no subsisting right over H schedule. While the plaintiffs 3 and 4 and 9th defendant were at AFA NOS. 3,4 & 5/2001 :17: Madras, Damodaran Nair was looking after the properties. Plaintiffs 3,4 and 9th defendant also executed a power of attorney in favour of Rugmini Amma, who was managing the property for and on behalf of others. Sivaramakrishnan Nair was assisting Rugmini Amma in the matter of managing the properties. Plaint B schedule is the house at plaint A schedule property. There is a pond in item No.6. Plaint C schedule properties are the articles kept in the house. Sivaramakrishnan Nair was allowed to reside at plaint B schedule property and after his death, defendants 1 to 8 who are his wife and children continued to reside there. Though they were asked to vacate, they did not do so and they are intending to trespass into plaint A schedule property to which they have no right. Hence the suit was filed for recovery of possession of plaint B schedule and for injunction restraining them from trespassing in to plaint A schedule property.
16. Defendants 1 to 4 and 6 to 8 in their written statement contended mainly that the suit is not maintainable, that Sivaramakrishnan Nair was managing the property in his individual capacity, that he got item Nos. 19 and 20 of the partition deed, that Rugmini Amma was residing near to Item Nos. 19 and 20 and her request for exchange of item Nos. 19 and 20 for plaint A schedule was agreed to by Sivaramakrishnan Nair, that an AFA NOS. 3,4 & 5/2001 :18: agreement was executed and Sivaramakrishnan Nair was put in possession of the properties and he was managing the affairs and had made improvements in the property. They claimed protection under Section 53 of the Transfer of Property Act. According to them, the plaintiffs are not entitled to get any decree for permanent injunction.
17. Defendants 1 to 5 and 7 in their additional written statement contended that they got the right of Karunakara Menon- the husband of Karthiayani Amma as per sale deed No. 2784/1985 of the SRO, Kuttippuram, that the will alleged is not genuine nor is it executed by Karthiayani Amma and the plaintiff is not entitled to get any decree.
18. The contentions raised by Defendants 9,10 and 11in their written statement are almost the same and contended that the plaintiff and themselves are entitled to get recovery of possession.
19. The court below framed necessary issues in all the above three suits and jointly tried the same after taking evidence in O.S. 21/1984 in common, which consists of the deposition of DWs 1 to 9, PWs 1 and 2, Exts.A1 to A31, B1 to B31 and Ext.C1.
20. On the pleading of the parties it admits of no doubt that there was a partition as evidenced by Ext.B1 produced in the case as per which plaint E schedule property was allotted to the exclusive share of Karthiayani AFA NOS. 3,4 & 5/2001 :19: Amma, the deceased and H schedule was kept in common to Karthiayani Amma and others. Though Sivaramakrishnan Nair was also a brother of Karthiayani Amma and an executant in the partition deed, he was not however allotted any share in the property. There is also no dispute that at the time when the suits were instituted Sivaramakrishna Nair had died and his wife and children were residing in the house property. Earlier, Damodaran Nair, the elder brother of Karthiayani Amma was managing the affairs and as far as he is concerned, he had transfered all his right before his death and he had no subsisting interest and that the management was left with Sivaramakrishnan Nair. It was while residing in the house property that Sivaramakrishnan Nair died. Thus the properties which are the subject matter of litigation especially E schedule properties were the exclusive property of Karthiayani Amma is beyond dispute. So also Karthiayani Amma had a share over H schedule. If Karthiayani Amma had validly executed Ext.B17 Will produced in the case, then necessarily, based on that Will her right is bequeathed in favour of Ramachandran Nair - her bother, in which event O.S. Nos. 21 and 23/1984 must fail. If on the other hand, the Will is found to be not genuine, then there is no dispute that Karunakara Menon, being the husband of Karthiayani Amma, and she being left with no children, father or mother alive, would have become her sole surviving AFA NOS. 3,4 & 5/2001 :20: legal heir who is entitled to succeed her interest whose right is stated to have been purchased by the wife and children of Sivaramakrishnan Nair.
21. According to the plaint averments in O.S. 21/1984, Karunakara Menon entrusted the management of the properties with the third defendant Ramachandran Nair and left for Kozhikode. He denies execution of any Will his wife Karthiayani Amma. But the suit was instituted on the allegation that in spite of request made by him, management was not given up. It has to be noticed that Karthiyani Amma died in 1973 and the suit is laid only in the year 1984. Though it is stated that defendants 3 and 4 were also in joint possession, that can only be with respect to H schedule. But as respect E schedule is concerned, since it belongs exclusively to Karthiayani Amma, he would have exclusive right over the same. Further, admittedly, Ramachandran Nair dealt with the properties as though it belongs to him based on the Will said to have been executed by Karthiayani Amma and had assigned the properties in favour of third parties as per registered sale deeds. Curiously enough, even as per the plaint allegations in O.S. 21/1984, Karunakara Menon- the first plaintiff has alleged that defendants 3 and 4 along with their brothers Damodaran Nair and Sivaramakrishnan Nair have colluded in denying his legal rights by creating a fraudulent Will. But at the same time, after institution of the suit, the first plaintiff had AFA NOS. 3,4 & 5/2001 :21: transferred his right over the properties by assignment in favour of the supplementary plaintiffs who are the wife and children of Sivaramakrishnan. If the allegation contained in the plaint is true, it is improbable that the first plaintiff could have assigned his right over the properties in favour of Sivaramakrishnan Nair's legal heirs. Further, the contra allegation contained in the written statement of the contesting defendants is that Damodaran Nair had married the sister of Karunakara Menon who subsequently divorced her and this created a displeasure between Karunakara Menon and Karthiayani Amma. It is even alleged in the written statement that the first instituted suit was O.S. 81/1987 by Ramachandran Nair, before the Musniff's Court, Tirur, as O.S.154/1983 and it is only as a counter-blast that the subsequent suits were instituted. Even though Karunakara Menon has averred in the plaint that the properties were entrusted with Ramachandran Nair and Rugmini Amma, in the light of the fact that several documents were executed in favour of third parties, one would have certainly expected Karunakara Menon to know about these things as the said transactions relating to immovable properties were in a rural area and there is no explanation as to why for about seven years, no enquiry was made by him regarding the properties if the allegation of entrustment is true. Even though it is alleged by Karunakara Menon that AFA NOS. 3,4 & 5/2001 :22: he was looking after his wife and was meeting the medical expenses from his pocket, no acceptable evidence is produced in the case, in this regard. Even though there is an allegation in the plaint that Karthiayani Amma was brought down to Kerala from Madras in 1973 January, the date on which actually she came down to Kerala is however not mentioned in the plaint. Even though it is stated that Karthiayani Amma was admitted in Tirur Hospital, there is absolutely no averment as to the date on which she was admitted to the hospital and no records to prove the same is also produced. Thus, it is in these backgrounds that we will have to consider whether Ext. B1 Will said to have been executed by Karthiayani Amma is genuine or not. True that these allegations and circumstances by itself will not lessen the burden of proof of propounder to be discharged and clear the suspicious circumstances if any attached to the execution of the Will to the satisfaction of the Court.
22. We may, in this regard, refer to the decision of the apex court in H. Venkatachala Iyengar v. Thimmajamma (AIR 1959 SC 443) wherein it is held that the onus of proof of the Will is on the propounder. Sections 67 and 68 of the Evidence Act are relevant for this purpose. If a document is alleged to be signed by a person, signature of such person is to be proved to be in his hand-writing and for proving such a hand-writing under Sections AFA NOS. 3,4 & 5/2001 :23: 45 and 47 of the Act, the opinions of experts and of persons acquainted with the hand-writing of the person concerned are made relevant. In the case of a Will there is an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will.
23. In yet another decision of the apex court in Savithri v. Karthyayani Amma (2007(4) KLT 811 SC) it was held that the testator must be of disposing state of mind and could understood the nature and effect of the disposition. If there is any suspicious circumstances onus would be on the propounder of the Will to explain them to the satisfaction of the court before it can be accepted as genuine. It was held in B. Venkatamuni v. C.J. Ayodhya Ram Singh (AIR 2007 SC 311) while considering the scope of Section 63 of the Succession Act that the proof of will shall be strict in terms of Section Section 63 and the suspicious circumstances surrounding the execution of Will cannot be said to be not of much significance and compliance with the legal formalities will not subserve the purpose.
24. In Daulat Ram v. Sodha ( AIR 2005 SC 233) the apex court held that the burden to prove that the Will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on AFA NOS. 3,4 & 5/2001 :24: person who alleges it to be so. In that case, the plea that the testator was physically incapable of executing a second Will since he had thumb marked it whereas earlier Will had been signed by him was found to be untenable in the absence of evidence showing that testator was unconscious at the time of execution of the second Will.
25. In this case, the fact remains that Karthiayani Amma was suffering from cancer and she was under treatment at Madras and she was brought down to Kerala in January, 1973 and it was thereafter that Ext. B17 is said to have been executed. According to the plaint averments she was terminally ill. But merely because she was suffering from a serious ailment by itself is not a reason to raise any suspicion since the same circumstances could also be a reason why the testator wanted to execute a will possibly knowing that she is suffering from such an ailment and she wanted to settle her property by executing a Will. Therefore, we have to consider the material evidence adduced in the case and see as to whether the Will Ext.B17 is genuine.
26. Learned counsel for the appellant would contend that the husband of Karthiayani Amma - the first plaintiff was the sole heir who would succeed to the estate of the deceased and according to him, there is no reason to dis-inherit the husband and this is one of the suspicious AFA NOS. 3,4 & 5/2001 :25: circumstance regarding the genuineness of the Will. But according to the defendants, one of the object of executing the Will is to dis-inherit the normal channel of succession as otherwise there is no necessity of executing a Will and according to them, the testator in this case does not want the property to go to another family. It was in 1959 that Ext.B1 partition was entered into and that partition deed is produced in the case as Ext.B1. Admittedly, E schedule in the partition was allotted to the exclusive share of Karthiayani Amma and the properties in H schedule was kept in common. there is a recital in para 7 of Ext. B1 as follows:
""H 1-0 3 6 ''.
27. Thus, the members of 1 and 3 to 6 thavazhies or the person in AFA NOS. 3,4 & 5/2001 :26: management had no right to create any encumbrance or right to dispossess or to sell the property or to destroy or commit any waste in respect of the improvements made thereon. Further, it is confirmed that the right of the members of the thavazhies will be in accordance with the Marumakkathayam law and nobody else as per the Succession Act will have a right to question the same and all the parties to the deed have agreed to the above clause. Thus, by this recital contained in the partition deed of the year 1959- immediately after the Hindu Succession Act has come into force, the parties have agreed even at the time of partition that the properties in H schedule has to be enjoyed by the members of the thavazhies constituted and the parties do not want the properties to devolve on any other person other than those entitled to as per the Marumakkathayam Law. Therefore, the case of the defendants is that there is nothing unusual or improbable in the execution of the Will by Karthiayani Amma in favour of Ramachandran Nair which is only consistent with the intention as expressed even in the partition deed and the properties belonging to Karthiayani Amma, after her death if it goes to her husband - the first plaintiff, necessarily after his death the same will go to the legal heirs of Karunakara Menon and not to the thavazhi member of Karthiayani Amma. According to them, Karthiayani Amma did not want AFA NOS. 3,4 & 5/2001 :27: that to happen. At any rate, this explanation as offered when considered in the context of the averments contained in the partition deed would convince us that the fact that husband of Karthiayani Amma was disinherited by the Will in favour of Ramachandran Nair cannot be viewed as any suspicious circumstance regarding its genuineness.
28. It was then contended that the attestors and the scribe were from a place 15 kms. away from Kuttippuram where the alleged Will was said to have been executed. In this connection, we may refer to the evidence of the attesting witness who was examined asDW.4. DW.4 is a practising advocate at Tirur since 1960. He is also an Additional Public Prosecutor. He deposed that he knows Karthiayani Amma, that he was an attesting witness in the Will Ext.B17, that he had signed in it in two places, that he had attested the said Will at the residence of Karthiayani Amma at Kuttippuramm, that at the time of attestation, Sainaba, Variath Appu Sivaramakrishnan Nair and DW.3 were present, that Sainaba is no more, that he had travelled from Tirur to Kuttippuram by car, that he has seen Karthiayani Amma putting signature on all the pages in Ext.B17, DW.3 also witnessed the same, that Karthiayani Amma saw the witnesses signing and that they had also seen each other attesting the documents. He further deposed that below the endorsement the name "Karthiayani Amma" was AFA NOS. 3,4 & 5/2001 :28: written by Karthiayani Amma herself. The word "attestor" was written by this witness and below that DW.3 signed. In the cross examination, he was asked as to whether there was any discussion regarding the Will to which he replied in the affirmatiive and stated that the discussion took place when he was in Puthenpura Veedu and not before. He does not know on whose instruction the Will was prepared. Regarding the endorsement he says that the wordings were kept ready in writing by him in a piece of paper and taken it along with him. It was Raman Nair who asked him to go to Puthenpura house a few days prior to the execution of the Will. The Will was prepared by Variath Appukkuttan. He had conducted a case for DW.2. Nothing is brought out in cross examination to discredit the testimony of this witness.
29. DW.3 is one Sreekumaran Nair who also deposed as in the same line as DW.4. It is true that while in the deposition of DW.4 he has stated that DW.2 had requested him through one Kunhiraman Nair to go to Puthenpura House two days prior to the execution of the Will, DW.2 has no such case. But that by itself cannot be sufficient to discard the evidence of DW.4. All that could be gathered from the deposition is that they were asked to go to Kuttippuram to attest a Will as instructed by one Kunhiraman Nair who is a stamp vendor at Tirur and a friend of the family AFA NOS. 3,4 & 5/2001 :29: of Karthiayani Amma, Ramachandran Nair etc. The stamp paper for Ext.B1 partition deed was purchased from Kunhiraman Nair which also was registered at Tirur. Learned Single Judge entered a finding to this effect. According to the learned Single Judge, the evidence of DW.4 would show that he is a cousin of Kunhiraman Nair and DW.2 was his client. Therefore, it is clear that necessity of selecting DW.2 and DW.4 for attesting the Will though they were residing 15 kms. away from Kuttippuram. Even though at first it may raise a doubt in the mind of the court why the attestors were chosen from a place of 15 kms. away from the place of execution of the Will, in the light of the evidence of DW.4 and Dw.2 and the fact that stamp paper for Ext.B1 was purchased from Kunhiraman Nair and it was Kunhiraman Nair who wanted the attestors to go to Kuttippuram, the inference drawn therefrom are sufficient enough to dispel any doubt in the matter of choosing the attestors from a place of 15 kms. away from the place of execution.
30. The fact that Ext. B17 is not a registered Will is also of no consequence as the Will is not a compulsorily registered document. the evidence of DW4 would show that he had consulted a senior advocate at Tirur in respect of a certification to be endorsed in the Will and it is as per his advice that the certificate portion was written in the Will . Whether AFA NOS. 3,4 & 5/2001 :30: such certification is necessary or not is not a matter relevant to decide the genuineness of the Will. DW.4 is an advocate practising in the Sub Court at Tirur. It is not shown that he had any special interest in favour of the propounder. He started his practice in the year 1960 and the fact that he had taken any advice from his senior in the matter of certification in the Will did not cast any doubt especially since a certification as such in no way affect the genuineness of the Will.
31. The appellant had a contention that the learned Single Judge himself has compared the signature after finding fault on the trial court comparing the signatures. We have gone through both the judgments of the trial court as well as the learned Single Judge. It is not correct to say that the trial court had entered any positive finding that the signature in the Will is different from the admitted signature. The finding is to the following effect:
"......A careful comparison of the signatures on the will shows that there are some difference between the admitted signatures and the disputed signatures seen on Ex. B17. There are small difference between the way of putting signature and the manner of putting the signature. On careful scrutiny, it may show that the signature seen on Ex.B17 was put taking much time; whereas the admitted signatures are put on an easy manner without taking much time. The leaning of lines seen on the disputed signatures are towards the AFA NOS. 3,4 & 5/2001 :31: right; whereas the leaning of lines seen on the disputed signatures are towards left. That also clearly shows that there is much difference between the admitted signature and the disputed signature."
32. Conclusion solely based on the comparison of the signature by the court may not be justified. It is normally not done also. But it has to be remembered that it is the court which decide the case and even in cases where signatures are sent for examination by hand-writing expert, what is obtained is only his opinion and after examination of the hand-writing expert it is for the court ultimately to take a decision after considering the entire evidence adduced in the case and surrounding circumstances. In this case, there is no positive finding to the effect that the signature contained in the Will Ext. B17 is not that of Karthiayani Amma. What is stated by the trial court is only that the signature contained in the Will appears to have been put by taking some time, which is quite natural. Ext. B1 partition deed is of the year 1959 when Karthiayani Amma was hail and healthy. It was in 1973 when she was suffering from a serious ailment that Ext.B17 was executed. It is only natural that an ailing patient of that age to take more time to write and there may even be some variations in the signature. The signature put in Ext.B1 several years prior AFA NOS. 3,4 & 5/2001 :32: to Ext. B17 may not exactly be the same. But it must be noticed that the plaintiff had no case even after production of the Will before the court that the signature contained in Ext.B17 is not that of Karthiayani Amma. The trial court has compared the signature in Ext.B17 with the admitted signature of Karthiayani Amma in Exts. B27, A4 and A9 and the finding thereon is in paragraph 30 of the judgment. By reading paragraph 30 of the judgment of the court below along with the disputed signatures in Ext. B17 and by comparing the admitted signature in Ext.B27, A4 and A9 with Ext. B17, the learned Single Judge felt that the finding of the trial court is erroneous and not acceptable and it is unrealistic. The learned Single Judge only stated that normally the court should not take a vital part or role of a hand-writing expert in the matter of deciding whether a signature or writing is genuine or not, though it has got such power to compare the writings. Therefore, the learned Single Judge has never held that the court has no power to compare the signature. On the other hand, the attestation on the document are found to be real, acceptable and legal. Based on evidence the comparison of signature under Section 73 is ruled out and the learned Single Judge proceeded to consider the other evidence in the case and deposition of DWs 3 and 4 for arriving at the conclusion that the Will is genuine. As we have already pointed out, it is not on mere AFA NOS. 3,4 & 5/2001 :33: comparison of the signature with any other admitted signature that a conclusion is to be drawn. When there is a dispute regarding execution of the Will, whether the evidence of the attesting witnesses are reliable, the circumstances under which the Will was executed, whether the plea as put forth by the parties are probable, whether the testator of the Will had sufficient disposition of the mind at the time of the execution of the Will are all matters to be gathered from the entirety of the evidence adduced in the case. Some differences in the signature by itself is not a reason to discard the other evidence in the case, rather it should be the totality of the evidence that should be considered in the case. We do not think that the learned Single Judge has said anything contra to the settled position in this regard.
33. The plaintiffs had averred in the plaint that during the period in question Karthiayani Amma was in a Nursing Home and the first plaintiff himself was attending her. If so, nothing prevented them from producing any evidence regarding the date on which Karthiayani Amma was admitted in the Hospital. We have noticed that there is no averment as to when the first plaintiff had admitted his wife in the hospital no evidence whatsoever is produced to show that he had expended any amount. On the other hand, the trial court has discarded the evidence Ext. B28 - a diary produced in the AFA NOS. 3,4 & 5/2001 :34: case. The learned Single Judge has reversed the finding and accepted the same. Both sides have placed reliance on some decisions and argued on the point as to whether Ext. B28 is a document maintained in the course of business and is an acceptable evidence. Ext. B28 is stated to be a diary maintained by Damodaran Nair who was the karanavan of the family. according to the plaintiffs there is nothing to show that the diary was written in the hand-writing of Damodaran Nair. As a matter of fact, this diary was produced by the defendants who were examined first, since the burden was on them to prove the Will. Wife of Damodaran Nair was already a party in the suit and it was with notice to her that this document was produced. But she did not dispute that the diary was not that of her husband Damodaran Nair. Ext. B28 was marked through the trial court and it was found that the defendants had produced the diary of Damodaran Nair for the year 1973-74 marked as Ext. B28 and of course Ext. B28 was marked without any objection being raised. But merely because this is marked it does not mean that it has got probative value. Therefore, we will examine this aspect of the matter.
34. Ext. B28 was marked after recalling DW.1. DW.1 is the propounder of the Will - Ramachandran Nair. He deposed in the cross examination that the diary Ext. B28 was found with the first defendant - AFA NOS. 3,4 & 5/2001 :35: the wife of Damodaran Nair and that he had gone there to get the same. The suggestion in the cross examination also show that the challenge was regarding the writings in the diary and as to whether Damodaran Nair was in the habit of writing diary every day etc. On a perusal of Ext. B28 it can be seen that the entry made on 12th January, 1973 is to the effect that Karthiayani Amma was admitted in Tirur Nursing Home. On 13th January, it is written that an amount of Rs. 5/- has been spent to reach the hospital. On 16th it is written that an offering Samkhabhishekam was conducted in the temple. The various entries on 11th, 12th & 13th of January, 11th, 13th and 15th of March and 6th, 17th, 25th and 27th April were also perused, which would show that Karthiayani Amma died on 17.4.1973 at 12.15. The expenditure for the last rites performed and the feast conducted are also written in the diary. On a perusal of the diary, it would appear that this was maintained by the person meticulously recording all the family expenditure and important matters relating to the family. The question is whether such a diary can be said to be maintained in the course of business. According to the appellant, Ext. B28 has no probative value. Sections 32 and 34 of the Evidence Act are relevant in this context. Referring to these provisions, in Palaparthi Ramamurthi v. Palaparthi Subba Rao (AIR 1937 Mad 19) the court considered a letter written to AFA NOS. 3,4 & 5/2001 :36: wife making reference to settlement and to tell uncle about executing mortgage in uncle's favour. It was held that it is admissible under Section 21 as it is statement admissible under Section 32(2) though not under Section 32(3). In Devi Singh v. Mt. Phulma (AIR 1961 HP 10) it was held as follows:
"The words 'in the ordinary course of business' in S,.32(2) should be given a broad and liberal connotation. The disruption of the status of a joint family is a matter with which the ladies of the family not only keep themselves in touch, but usually, if not invariably, have also a say thereon and it might well be presumed that if a lady of the family does not participate in the actual deliberations, she is kept fully conversant with them by her nearest male relative. Thus, an important event in the history of a family communicated by either the husband to his wife or by an elder to a younger even in the ordinary course of conversation at a time when there is no controversy about it may well be held to be a statement made in the ordinary course of business."
35. The words "in the ordinary course of business" as such is not defined in the Evidence Act but there is nothing to indicate restricting it to any particular activity. It should however be susceptible to be a document maintained in the normal course. If a common man who is managing the affairs of a tharvad or a thavazhi, maintains a diary making note of all the AFA NOS. 3,4 & 5/2001 :37: expenditure and important events taking place in the family, it cannot held to be a document not maintained in the ordinary course of business. It is the regularity of the matter that is more important. On a perusal of the diary, it can be seen that all minute details regarding the family affairs had been recorded in the diary. Therefore, we agree with the finding of the learned Single Judge that Ext. B28 is an acceptable piece of evidence.
36. It is true that there is no evidence as such to show that it is the diary of Damodaran Nair, other than the evidence of DW.1. But when DW.1 Ramachandran Nair has stated that Ext. B28 is the diary of Damodaran Nair and it was obtained from the wife of Damodaran Nair who is the first defendant in the suit and the first defendant has not disputed the same, there is nothing wrong in believing DW.1 who is none other than the brother of Damodaran Nair. It is true that his wife could have been a better witness to prove the diary. The non examination of the wife of Damodaran Nair as such is no reason to discredit the evidentiary value regarding Ext. B28.
37. The medical bills were produced and marked through DW.1. These bills were produced only in 1993. Till Damodaran Nair left Meleppattu house, he was residing there. He also died later and then his wife and children continued to reside there. These bills were taken from AFA NOS. 3,4 & 5/2001 :38: that house. The suggestion is that it was Damodaran Nair who kept these bills in the house. If as a matter of fact, Karunakara Menon had met the expenditure, nothing prevented him from producing the bills which was however not done. It is contended that according to the defendants, intimacy of the testatrix with Ramachandran Nair was the reason for executing the Will in his favour, but there is no acceptable evidence to support the same. But it is only an opinion of the parties as to the motive behind Ext. B17. Even what was the motive for execution of the Will as in the opinion of the parties is of no consequence. The legatees, who are living persons, are only making their own inferences, which may or may not be true. The question is as to whether the testatrix had really executed the Will and whether it is genuine. Even though it is contended by the plaintiff that the date on which the Will was executed Karthiayani Amma was in the hospital, no evidience whatsoever is produced to substantiate the same. On the other hand, when there is a date in a document, the initial presumption is that it was executed on the date it bears. In this connection, we may refer to the decision in Poker v. Khalid (1973 KLT
540) wherein it is held that there is the initial presumption that a document is executed on the day mentioned in the document as the date of execution. Prima facie the date shown in the document may be accepted as AFA NOS. 3,4 & 5/2001 :39: the date of such execution and it is for the party who contends that the document was executed on a different date to show otherwise.
38. True, in this case, the dispute is not regarding the date. But its execution as such is disputed. But as we have already held, if the attesting witnesses are believed, the execution stands proved in which event, it is for the plaintiff to show that the Will could not have been executed at the residence of the testatrix and to show that she was actually admitted in the hospital on the alleged date and on this aspect there is hardly any evidence adduced by the plaintiffs. In this connection, we may refer to the decision of the Supreme Court in Surendra Pal v. Saraswati (AIR 1974 SC 1999) wherein it is held as follows:
"The propounder has to show that the will was signed by the testator that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances the onus will be on the propounder to explain them to the satisfaction of the court before the will could be accepted as genuine; and where the caveator alleges undue influence, fraud AFA NOS. 3,4 & 5/2001 :40: and coercion the onus is on him to prove the same............ "
Therefore, if the allegation of the plaintiffs is that the Will Ext. B17 is fraudulent and Karthiayani Amma was actually admitted in the Hospital on the alleged date and actually when the first plaintiff in the plaint avers that he admitted her in the hospital, evidence ought to have been adduced to show that Karthiayani Amma was in Hospital on the date on which the Will was executed and on the date which it bears. Thus, the plaintiffs have miserably failed in this regard.
39. Both sides have referred to the deposition of the witnesses examined in the case. We are not prepared to say that there is no contradiction at all in the deposition of the witnesses. Minor discrepancies are there. But this do not lead to any inference affecting the genuineness or otherwise of the Will. The trial court has referred to the evidence of DW.4 and according to it, the deposition of DW.4 shows that he is interested in the parties and has taken more interest in proving the Will and attesting the Will by himself. Then there is a contradiction between the deposition of DW2 and DW.4. This is the reason to disbelieve the evidence of DW.4 forgetting the fact that DW.4 has nothing to gain from the Will, he is an advocate practising in the court and an independent person who is not AFA NOS. 3,4 & 5/2001 :41: shown to have any special interest in the parties. The trial court found that the Will is not genuine and the discussions are contained in paragraph 27 to 38 of its judgment. The learned Single Judge, however, did not agree with the finding of the trial court and he has discussed every point in detail in the judgment under appeal from paragraph 21 onwards. The oral evidence of the witnesses with reference to the execution and attestation and the contra evidence let in by the challenging parties are particularly discussed in para 28 of the judgment. DW.1 is Ramachandran Nair the propounder of the Will. DW.2 is Rugmini Amma - one of the sisters of Kamalakshi Amma. According to DW.1 the Will was handed over to him by the testatrix; but he did not see the testatrix executing the same. DW.2 had also not seen the execution of the Will. According to her, she was away from Kuttippuram from 8.1.1973 to 10.1.1973. The testatrix was residing in their family house 'Puthenpura' at Kuttippuram and Rugmini Amma was also residing with her. When she returned home she was told by the testatrix that she has executed a Will in favour of Ramachandran Nair and she showed the same to her. DW.3 and DW.4 are attesting witnesses. They have deposed that they saw the execution of the Will and witnessed Karthiayani Amma putting her signature in Ext. B17 and they then put their signature after her signature on the Will. DW.4 happened to AFA NOS. 3,4 & 5/2001 :42: be the attesting witness since a request was made through one Kunhiraman Nair, who, we have found, was a stamp vendor at Kuttippuram from whom stamp paper was purchased for execution of the partition deed Ext. B1. Therefore, his previous contact with the family is evident. Even though it is contended by the appellants raising a doubt as to why the attesting witnesses were chosen from Kuttippuram from 15 kms. away from the place of execution of the Will, learned Single Judge has considered this aspect of the matter and found that Kunhiraman Nair was a close friend of the family of Karthiayani Amma and Ramachandran Nair and was a stamp vendor. He has referred to Ext. B1 and the fact regarding purchase of stamp paper from him for preparation of Ext. B1. DW.4 is a cousin of Kunhiraman Nair as is brought out in the evidence of DW.4. DW.2 was a client of DW.4. Therefore, the learned Single Judge found that there is probability of selecting DW.2 and DW.4 to attest the Will though they are residing 15 kms. away. We do not find that the reasoning adopted by the learned Single Judge in disregarding the argument of suspicion merely based on the fact that the attesting witnesses were from Kuttippuram is perverse. On the other hand, the learned Single Judge has given very cogent reasons in rejecting those contentions. The fact that there is a Sub Registrar's Office at Tirur and if as a matter of fact, the Will was genuine it AFA NOS. 3,4 & 5/2001 :43: could have been registered was not found to be a sound reason, rightly, as we may say so because a Will is not a compulsorily registrable document and the non registration of the Will in no way could therefore be a matter arising any suspicion.
40. We have already discussed the evidence of DW.4 and the certification contained in Ext. B17. Learned Single Judge in para 31 of the judgment has found, after discussing the evidence of DW.3 and DW.4, that when Karthiayani Amma put her signature in Ext. B17 DW2 and DW.3 had seen her and she saw them putting their signature and there is nothing to show any reason to discard the testimony of DW.3 and DW.4. As we have already pointed out, the minor discrepancies in the deposition of the parties could very well be explained as has happened due to passage of time. The execution of the Will was in 1973 and the examination of the witnesses were in 1993 - 20 years thereafter and therefore, the learned Single Judge was perfectly justified in holding that minor contradiction in the evidence of DW.3 and DW.4 is not a matter to be seriously taken note of nor is it a ground for discarding their evidence and what is required is to assess the evidence on its entirety and to reach a conclusion.
41. It is contended by the appellant that even after the suit notice Ext. A16 was issued on 7.5.1984 on behalf of the first plaintiff Karunakara AFA NOS. 3,4 & 5/2001 :44: Menon to the legatee DW.1 and a reply Ext.A17 was sent by the legatee, though it is asserted that there is a Will, the copy of the Will was not furnished to the appellants in spite of Ext.A18 letter. Therefore, nondisclosure of the Will is stated to be a reason raising some suspicion. We have considered this argument also. We have already noticed earlier in one of the foregoing paragraphs of this judgment that among the three suits the suit instituted first was the suit instituted by Ramachandran Nair before the Munsiff's Court, Tirur as O.S. 154/1983 (O.S. 81/1987 herein) and that was a suit for permanent prohibitory injunction in respect of A schedule and recovery of possession of B schedule on the strength of title. Reference is made in the plaint to the partition deed Ext. B1 herein and there is a specific averment that Karthiayani Amma had executed a Will in favour of Ramachandran Nair on 9.1.1973 and it is he who has produced the same and marked as Ext. B17. Thus, it can be seen that the Will is not set up as a defence in the partition suit now instituted by the plaintiffs/appelants. On the other hand, Ramachandran Nair was asserting his right over the properties based on the Will even prior to the institution of the suit O.S. 21 and 23 of 1984 as revealed by the transactions made openly by registered documents and dealing with the property as an absolute owner. As a matter of fact, there is an earlier suit instituted by AFA NOS. 3,4 & 5/2001 :45: Ramachandran Nair against Damodaran Nair - his elder brother as O.S. 186/1973 before the Munsiffs Court, Tirur and subsequently, the parties entered into a compromise and Damodaran Nair was actually managing the properties. Ext. B4 produced in the case is a compromise decree in the said suit. Sivaramakrishnan Nair - the other brother whose legal heirs are supplemental plaintiffs in O.S. 21/1984 was a witness to Exts. B6 and B9 which are assignment deeds in favour of strangers. It is contended that mere attestation in a document does not imply knowledge of its contents and reliance is placed on the decision of the apex court in Abdul Mithalif v. Syed Bibi Ammal & Others (1980 (Supp) SCC 771). There cannot be any dispute on this settled position. The attesting witness, in the absence of any other evidence, cannot be presumed to know about the contents of the document. But here is a case where there was some dispute regarding the family property and one of the brothers instituted a suit against another for recovery of certain items on the basis of the Will, which suit was compromised. Subsequently, the legatee, acting on the basis of the will, executed several documents in favour of third parties. One of the brothers was made a witness to the document. In such circumstances, the witness cannot presumed to be ignorant of the contents of the document. It is only natural that to avert further dispute by any of the brothers he was asked to AFA NOS. 3,4 & 5/2001 :46: put his signature as a witness to that document so that the third party who purchases the property will be rest assured that there is no dispute regarding the Will at least by the brother who is an attesting witness in the document. In this connection, we may refer to the decision of this Court in Parameswara Iyer v. Sivaraman Nair & Others (1963 KLJ 241) wherein it was held that when a husband attests a deed executed by his wife, the attestation is normally presumed to have been made to record the husband's approval to the transaction itself. It is to be noticed in this connection that in the suit filed by Ramachandran Nair against Damodaran Nair, the Will was produced with the plaint. Thus when an occasion arose Ramachandran Nair did produce the Will before a court of law. One of the brothers was a defendant therein and later the suit was compromised.
42. It is to be noticed in this connection that in the suit filed by Ramachandran Nair against Damodaran Nair the Will was produced. Thus when an occasion arose Ramachandran Nair did produce the Will before a court of law. One of the brothers was a defendant therein and later the suit was compromised. Yet another brother was an attesting witness in a transaction that took place subsequently. In such a situation, how could one think that the attestor who is none other than the brother of the transferor is unaware of the contents of the document? At any rate, AFA NOS. 3,4 & 5/2001 :47: the subsequent conduct of Ramachandran Nair also would show that he was asserting his right under the Will. He has executed various documents to which we have already made reference. The case put forth by the first plaintiff that he had entrusted management of the properties with Ramachandran Nair and Rugmini Amma and that he was not aware of the Will can not be believed to be true and we have already discussed this aspect of the matter in one of the earlier paragraphs of our judgment.
43. To sum up, the trial court found that the testatrix was admitted to the Tirur Hospital immediately on reaching Kerala from Madras and reference is made to the deposition of DW.2 who stated that Karthiayani Amma was admitted in the hospital immediately. But there is no evidence in this case to show that Karthiayani Amma came came down from Madras on 12.1.1973. As a matter of fact, the first plaintiff who has stated that he had accompanied his wife from Madras could have produced some piece of evidence or the reservation particulars, if it was true. On the other hand, there is clear evidence in this case to show that Karthiayani Amma had come down from Madras not on 12.1.1973 but a few days prior thereto. In this regard, even the court below has referred to Ext.A3 medical bill issued from Lakshmi Medical Emporium dated 6.1.1973 to show that Karthiayani Amma was at Madras on 6.1.1973. It is also referred to in Ext. B28 diary AFA NOS. 3,4 & 5/2001 :48: of Damodaran Nair relating to the year 1973 to the effect that Karthiayani Amma was taken to his house-warming in Manchal on 7.1.1973 and if Ext. B28 is to be believed, she was at Kurrippuram on 7.1.1973. The fact of expending some amounts towards medical expenditure is also referred to. The fact that Karthiayani Amma was admitted to Tirur Nursing home on 12.1.1973 is not in dispute. But the trial court has stated that since Karthiayani Amma was taken to Tirur Nursing Home on 12.1.1973 and if DW.2 says that Karthiayani Amma was taken to Tirur Nursing Home immediately after she returned from Madras, it must be presumed that Karthiayani Amma's condition become worse during the earlier period of 1973. As is rightly pointed out by the learned Single Judge, the deposition of DW.2 that Karthiayani Amma was taken to Tirur Nursing Home immediately on her return from Madras cannot be taken to mean that the moment she arrived from Madras she was straight away taken to Tirur Nursing Home. On the other hand, even the first plaintiff who states that it is he who has admitted Karthiayani Amma at Tirur Nursing Home, has not chosen to produce any document to show that she was admitted there on an earlier date than 12.1.1973. On the other hand, Ext. B28 and the entries contained therein would clearly show that Karthiayani Amma had attended the house warming ceremony of the newly constructed house of Damodaran AFA NOS. 3,4 & 5/2001 :49: Nair and she came back to her residence on 10.1.1973 and only on
12..1.1973 she was admitted in the hospital, whereas Ext. B17 was executed on 9.1.1973 itself. We cannot, in such circumstances, presume that contrary to the evidence let in, Karthiayani Amma was admitted in the hospital on 6.1.1973 and to say that the Will is not genuine. The learned Single Judge has found convincing reasons for accepting Ext. B28 as a piece of evidence beyond shadow of doubt and to look into the entries made therein as an acceptable piece of evidence to show that Karthiayani Amma was taken to the house-warming which was on 10th January, that she was brought to the house of Damodaran Nair to attend the house warming ceremony and the expenditure incurred for bringing her there, which are also entered in the diary. Therefore, it was after the execution of the Will on 9.1.1973 that she attended the house warming ceremony and returned to her residence and later admitted to the hospital on 12th January. The evidence of DW.2 that she left her house on 8.1.1973 and returned on 10.1.1973 when alone she was told by Karthiayani Amma about the Will and the argument put forth by the appellants are discussed in para 35 of the judgment. It was argued based on the deposition of DW.4 who stated that he was intimated by DW.2 some days prior to 9.1.1973 about the execution of the Will and thus there is a material contradiction. This was AFA NOS. 3,4 & 5/2001 :50: specifically discussed by the learned Single Judge as also by the trial court. Even though the trial court found that this is a suspicion touching the genuineness of the Will, the learned Single Judge was not prepared to accept the same. The oral evidence of DW.2 and DW.4 and other attendant circumstances were thoroughly examined and it was found that Kunhiraman Nair, the uncle of DW.4 was a family friend and that fact was known to all members including DW.2 and what DW.2 means in her evidence would be that she does not know the actual execution of the Will on 9.1.1973 and she came to know of the same only on 10.1.1973 when she returned back. It was also found by the learned Single that there are sufficient and cogent reasons for dispelling the argument of the appellants that disinheritance of Karunakara Menon raises suspicion and this aspect of the matter has also been discussed by us earlier.
44. Even though the trial court has found that the relationship between Karunakara Menon and Karthiayani Amma was cordial, we do not think it is necessary for sustaining a Will that any enmity between the testatrix with her husband is required to be proved. As we have already discussed, there are indications in Ext. B1 that the parties never wanted the properties to reach the hands of a third party other than a member of the thavazhi. At any rate, if the execution of the Will is proved and the AFA NOS. 3,4 & 5/2001 :51: attesting witnesses' evidence is accepted, the fact that the relationship was not so strained as contended by the parties or that Karunakara Menon and Karthiayani Amma werenot on cordial terms may not matter much. The fact remains that Karunakara Menon was aware of the Will since he had not dealt with the properties left behind his wife after her death. We have already held that we cannot believe that Karunakara Menon was totally ignorant of the Will or that he had entrusted the properties for management with Ramachandran Nair and his sister Rugmini Amma. Damoran Nair, Sivaramakrishnan Nair, Karunakara Menon, Rugmini Amma were all aware of the Will and the basis for such a conclusion has already been discussed.
45. The learned Single Judge has found that the 6th defendant in O.S. 23/1984 has purchased plaint B schedule items from Ramachandran Nair under Exts. B9 and B10 and on his death his wife and daughter have entered on record as defendants 16 to 24. There is a finding that those docucments were supported by valid consideration. There is no acceptable material to come to a different conclusion. The finding of the learned Single Judge that at the time of execution of the Will Karthiayani Amma was of sound and disposing state mind, that she had attended the house- warming ceremony of Damodaran Nair on 10.1.1973 where as the Will Ext. B17 was executed on 9.1.1973 and she was admitted in the hospital AFA NOS. 3,4 & 5/2001 :52: only later on 12.1.1973 are thus based on materials available on record.
46. These are intra court appeals against the judgment of the learned Single Judge, filed under Section 5 of the High Court Act. The power of the appellate court in an intra court appeal is not exactly the same as contained in Section 100 of the Code of Civil Procedure. Iit is also well- known that entertainment of such an appeal itself is discretionary and unless cogent reasons are shown, the court of appeal will not differ from the finding of facts reached by the learned Single Judge. Some amount of restriction is therefore necessary, as has been held by the apex court in Asha Devi v. Dukhi Sao ((1974) 2 SCC 492) which is referred to in the decision in Umabai v. Nilkanth Dhondiba Chavan (2005(6) SCC 243). The appellate court's power under Order 21 Rule 33 no doubt enables the appellate court to pass any decree or order which ought to have been made and to make such further order or decree as the case may be. As we have already pointed out, it was the first appeal that the appeal from the trial court which was heard and disposed of by the learned Single Judge by the impugned judgment in this appeal. This is only a second appeal now preferred to the Division Bench from the judgment of the learned Single Judge. The finding of facts and the appreciation of evidence by the learned Single Judge, which we have discussed in detail do not show that the AFA NOS. 3,4 & 5/2001 :53: findings arrived at are in any way perverse calling for any interference in an appeal of this nature.
In the result, we find no merits in these appeals. According, these appeals are dismissed.
P.R. RAMAN, JUDGE) V. K. MOHANAN, (JUDGE) knc/-