Kerala High Court
P.A.Venugopalan vs P.A.Gouri
Author: P. Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
MONDAY,THE 17TH DAY OF MARCH 2014/26TH PHALGUNA, 1935
RSA.No. 516 of 2011
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[AGAINST THE JUDGMENT DATED 10/11/2010 IN A.S. NO.40/2009 ON THE FILE
OF THE COURT OF THE III ADDITIONAL DISTRICT JUDGE, KOZHIKODE IN
O.S. NO.339/2000 ON THE FILE OF THE COURT OF THE 1ST ADDITIONAL-
SUB JUDGE, KOZHIKODE DATED 29/11/2008]
.............
APPELLANTS/APPELLANTS/DEFENDANTS:
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1. P.A.VENUGOPALAN,
S/O.KARYAT GOVINDAN NAIR, KARYATT HOUSE,
KANNIPARAMBA AMSOM, PALANGAD DESOM, KOZHIKODE TALUK.
2. P.A.LEELA, D/O.KARYAT GOVINDAN NAIR,
KARYATT HOUSE, KANNIPARAMBA AMSOM, PALANGAD DESOM,
KOZHIKODE TALUK.
3. P.A.VIJAYAN,S/O.KARYAT GOVINDAN NAIR,
KARYATT HOUSE, KANNIPARAMBA AMSOM, PALANGAD DESOM,
KOZHIKODE TALUK.
BY SRI.T.KRISHNANUNI,SENIOR ADVOCATE,
ADVS.SRI.C.DILIP,
SRI.SAJU.S.A.
RESPONDENT/PLAINTIFF:
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P.A.GOURI, D/O.LATE KARYAT GOVINDAN NAIR,
RESIDING AT 'AISWARYA', KANNIPARAMBA AMSOM,
PALANGAD DESOM, KOZHIKODE TALUK-673 001.
BY ADVS. SRI.P.B.KRISHNAN,
SRI.K.B.SIVARAMAKRISHNAN,
SRI.P.B.SUBRAMANYAN.
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY
HEARD ON 21-02-2014, THE COURT ON 17-03-2014
DELIVERED THE FOLLOWING:
Prv.
P. BHAVADASAN, J.
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R.S.A. No. 516 of 2011
- - - - - - - - - - - - - - - - - - - - - -
Dated this the 17th day of March, 2014.
ORDER
A short but interesting question regarding the genuineness of a codicil arises for consideration in this appeal. Both the courts below held that codicil has not been proved as required under law and held against the defendants and granted a decree for partition in favour of the plaintiff. The aggrieved defendants have come up in appeal.
2. The facts absolutely necessary for the disposal of this appeal are as follows:
The plaintiff and defendants are the children of late Govindan Nair. Late Govindan Nair, who had extensive items of properties, by his Will dated 29.12.1974 bequeathed his assets in favour of his children. 14 items of properties were bequeathed equally to all his children.
RSA. 516/2011.2
Govindan Nair died in 1975. Raman Nair, the brother of Govindan Nair, who too owned properties, by Ext.A1 Will dated 4.12.1973 bequeathed three items of properties, namely, items 15 to 17 scheduled to the plaint in favour of the plaintiff and defendants jointly. The plaintiff laying claim to the property bequeathed as per the Will of Raman Nair and Govindan Nair moved for partition.
3. The dispute regarding the partibility of the items remained confined to items 16 and 17. As far as items 1 to 15 were concerned, there was no objection on behalf of the defendants. As regards items 16 and 17, the contention was that late Raman Nair had executed a codicil dated 28.6.1974 whereby he slightly modified the earlier bequest effected by him as per Ext.A1 Will. It was pointed out by the defendants that after execution of Ext.A1 Will by which B schedule to the Will which consisted of the School and property owned and possessed by Raman Nair was to be inherited by the first defendant in the suit. However, RSA. 516/2011.
3Raman Nair changed his mind and wanted the plaintiff to have the School and its properties and also have the management of the School. He therefore applied to the educational authorities for change of management of the school in favour of the plaintiff. The intention of Raman Nair was to execute a gift deed in respect of the school, its properties and management once the educational authorities approved the change of management. With that intention in mind, he modified his Will by Ext.B1 codicil and out of the three items contained in A schedule to Ext.A1 Will, item 1 remained to be jointly bequeathed to the plaintiff and the defendants. However, the plaintiff was disinherited in respect of items 2 and 3 of A schedule to Ext.A1 Will and those items as per Ext.B1 codicil was to be shared by the defendants. They therefore contended that the plaintiff has no manner of right over items 16 and 17 scheduled to the plaint and that had to be partitioned only among the defendants.
RSA. 516/2011.
4
4. On the above pleadings issues were raised by the trial court. The plaintiff did not adduce any oral evidence but had Exts.A1 to A13 marked. The contesting defendants had D.Ws.1 to 3 examined and had Exts.B1 to B4 marked. On an appreciation of the evidence in the case, the trial court came to the conclusion that the codicil has not been proved in accordance with law and its execution is surrounded by suspicious circumstances which the contesting defendants were unable to clear and to satisfy the conscience of the court that Ex.B1 codicil was in fact executed by Raman Nair. Accordingly, the trial court granted a decree for partition in respect of all the 17 items.
5. The aggrieved defendants took up the matter in appeal as A.S.40 of 2009 before the District Court, Kozhikode. The lower appellate court on an independent evaluation of the evidence concurred with the trial court and dismissed the appeal. That brings the defendants before this Court. When the second appeal came up for admission, RSA. 516/2011.
5the following questions of law were formulated by this Court:
"1. Are the courts below justified in holding that Ext.B1 will is not genuine without proper appreciation of the evidence D.Ws. 2 and 3 who are employees of the school run by the plaintiff?
2. Whether the findings of the courts blow that there are suspicious circumstances which were not removed by the propounder of the will is correct?"
6. The only question that arises for consideration is whether Ext.B1 codicil which modified Ext.A1 Will executed by Raman Nair to some extent has been proved as is required by law and whether the propounder of Ext. B1 codicil has been able to establish that Ext.B1 codicil was in fact executed by Raman Nair.
7. The courts below found several circumstances which would throw considerable doubt regarding the genuineness of Ext.B1 codicil. They found that after the death of Raman Nair, the school properties were assigned in RSA. 516/2011.
6favour of the plaintiff by the first defendant and in the correspondence between the educational authorities and the first defendant, he had indicated that Ext.A1 Will was the last Will of Raman Nair. Both the courts below found that at no point of time before the suit, the codicil has been disclosed. The courts below also found that the two attesting witnesses namely, D.Ws.2 and 3, to the codicil did not support the execution of the codicil and there were no other evidence to prove the due execution of the codicil. The lower appellate court also referred to the proceedings before the Land Board and found that if as a matter of fact the codicil was in existence at that point of time, surely that would have reflected in the proceedings before the Taluk Land Board. The courts below also referred to an acquisition proceedings in which compensation was awarded and in that proceedings too, Ext.B1 codicil was not relied on by the defendants. The lower courts found that both in the ceiling proceedings and the Taluk Land Board RSA. 516/2011.
7proceedings, had the codicil been put forward, that would have had an impact on the right of the plaintiff regarding the surrender of properties and also the compensation awarded in land acquisition proceedings.
8. Shri. T. Krishnanunni, learned Senior Counsel appearing for the appellants, contended that the so-called suspicious circumstances relied on by the courts below have no real bearing on the issue involved in this case. Learned counsel also pointed out that merely because the attesting witnesses have turned against the propounder, that does not mean that the codicil is not proved. There are other telling circumstances which would unerringly establish that Ext.B1 codicil was in fact executed by Raman Nair. It is significant to notice, according to the learned counsel that the plaintiff has kept away from the box and that calls for an adverse inference to be drawn against her. Relying on the decision reported in Vidhyadhar v. Mankikrao ( AIR 1999 SC 1441), the learned counsel pointed out that when RSA. 516/2011.
8there are disputed questions of fact in a suit and if one of the parties does not enter the box and depose to his case, an adverse inference has to be drawn against him. In the case on hand, the plaintiff deliberately kept herself away from the box since she knew that if she mounted the box, she would have to admit that Ext.B1 was infact executed by Raman Nair. For the proposition that fate of a Will or codicil cannot depend upon the whims and fancies of attesting witnesses, learned counsel relied on the decision reported in Chacko v. Elizabeth John (1997(1) K.L.T. 739).
9. Learned Senior Counsel appearing for the appellants went on to contend that the courts below were primarily carried away by the fact that the first defendant had executed Ext.A2 gift deed dated 11.10.1975 in respect of the School, its properties and management in favour of the plaintiff. So also defendants had executed Ext.A3 dated 31.8.1988 where they relinquished their rights over 26 cents of property in which the plaintiff too had a share in RSA. 516/2011.
9her favour. Learned counsel went on to point out that these two documents are held against the defendants by the courts below pointing out that had the codicil been in existence at that point of time, those documents would not have been executed.
10. According to the learned counsel for the appellant, the above findings of the courts below are not justified. It is a fact that late Raman Nair initially wanted the first defendant to inherit the school, its properties and management. Later on, he changed his mind and wanted to have the plaintiff succeed to the management of the school and have the properties attached to the school. He had taken up the matter with the educational authorities. But before he could achieve his aim, he passed away. The execution of Ext.A2 by the first defendant in favour of the plaintiff cannot be taken as against him because he could have executed Ext.A2 gift deed only as per the terms of the Will by which the School, its properties and management RSA. 516/2011.
10was to be inherited by him. That transaction had nothing to do with the codicil and it was not necessary to mention the codicil in Ext.A2 gift deed. As far as Ext.A3 is concerned, since the sharers found that the plaintiff did not have a house, in order to enable her to put up a house, they relinquished their shares in 26 cents of property in favour of the plaintiff. The defendants acquired right over the suit property only by way of Will executed by Raman Nair and in that transaction too, the codicil has no role to play. As far as the Talk Land Board proceedings and the acquisition proceedings are concerned, having exclusive items of properties, and the probable extent of the property which the plaintiff had to surrender in terms of the Will and codicil and also regarding the meager compensation she would receive in land acquisition proceedings, it could not be said that that affects the genuineness of the codicil.
11. Learned Senior Counsel then went on to point out that the evidence of D.Ws.2 and 3 is to the effect that RSA. 516/2011.
11they have signed in some blank papers and they were given to understand that Raman Nair wanted them to sign those papers for the purpose of some proceedings before the Taluk Land Board. This explanation offered by D.Ws.2 and 3 on the very face of it is untenable and it could be seen from Ext.B1 codicil that the said claim made by the two attesting witnesses cannot be true. It is also pointed out by the learned counsel for the appellants that the signature of Raman Nair on Ext.B1 codicil is not disputed. These telling circumstances are sufficient to show that Ext.B1 codicil was infact executed by Raman Nair even though the attestors did not support the execution. Learned counsel went on to point out that in equity also it is only proper to uphold the codicil. Except for the codicil, the school, its properties and management would have remained with the first defendant and he accepting the desire of the testator in the codicil assigned the school, its properties and management in favour of the plaintiff and she accepted the same. Having RSA. 516/2011.
12enjoyed the benefits under those transactions, it comes with little grace from the plaintiff to say that Ext.B1 codicil was not executed by Raman Nair. Therefore, viewed from any angle, the finding of the court below that Ext.B1 codicil is not proved to have been executed by Raman Nair cannot be sustained.
12. Shri. P.B. Krishnan, learned counsel appearing for the contesting respondents pointed out that he had no quarrel with the proposition of law put forward by the learned Senior Counsel for the appellants and he agreed with those principles of law. However, according to the learned counsel, if the attesting witnesses do not support the execution of the Will or their evidence is insufficient to prove the execution of the Will, going by Section 71 of the Indian Evidence Act, the propounder can adduce other evidence or rely on such circumstances as would enable him to establish that the Will had in fact been executed by the testator. Assuming that the attesting witnesses D.Ws.2 and RSA. 516/2011.
133 deliberately spoke falsehood, that may not be of much help to the propounder of the codicil unless he establishes by other evidence that the codicil has infact been executed by the testator. In order to take aid of Section 71 of the Indian Evidence Act, it is insufficient to merely point out that the disputed document contains the signatures of the attesting witnesses and the signature of the testator. There has to be evidence to show that the executor signed in the presence of the attesting witnesses and vis a versa. This crucial aspect will have to be established by the propounder. Even assuming that the attesting witnesses did not support the propounder in this regard, he may by adducing other evidence, for example, examining persons who had seen the execution of the codicil or in case the Will is registered, by examining the Sub Registrar, may prove that the Will has infact been executed by the testator. When one looks for such evidence, in the case on hand there is none. Merely based on the execution of Exts. A2 and A3 RSA. 516/2011.
14documents, it cannot be said that the execution of codicil has been proved. Referring to Ext.A5 document, learned counsel for the respondent pointed out that that is a communication authored by the first defendant addressing the educational authorities wherein he categorically mentioned that the Will namely Ext.A1 dated 4.12.1973 is the last Will by Raman Nair.
13. Learned counsel also went on to point out that Raman Nair died on 2.7.1974 and the suit for partition was laid only in 2000. During the long gap of 26 years there is nothing to show that the parties had acted on the basis of Ext.B1 codicil or the defendants in the case have taken any steps with regard or with reference to Ext.B1 codicil. For the proposition that merely because, even assuming that, it is proved that Ext.B1 codicil contains the signature of Raman Nair and the attesting witnesses, that by itself will not be sufficient to establish the due execution of the codicil. For the above proposition, learned counsel RSA. 516/2011.
15relied on the decision reported in Joseph v. Ippunny (2007 (4) K.L.T. 853). Accordingly, it is contended that the courts below were justified in coming to the conclusion that there is want of proof of due execution of Ext.B1 codicil. According to the respondent, no grounds are made out to interfere with the judgment and decree of the courts below.
14. It is not disputed that Ext.A1 Will was executed by Raman Nair and it is dated 4.12.1973. That Will contains two schedules, namely, A schedule and B schedule. A schedule contained three items of properties. As per the bequest under Ext.A1 Will, the three items of properties made mention of in A schedule to the Will were to be bequeathed equally between the plaintiff and the defendants. B schedule to the Will took in the School, its properties and the management of the School. Initially, going by the terms of Ext.A1 Will, that was to be inherited by the first defendant. However, it appears that there was a change of mind as far as the school was concerned and RSA. 516/2011.
16Raman Nair thought that the School should be inherited by the plaintiff. With that in mind, he moved the educational authorities for change of management in favour of the plaintiff. But before he could achieve that object, he passed away on 12.7.1974. Even after the death of Raman Nair, there were correspondences with the Educational authorities regarding the change of management and ultimately the educational authorities approved the plaintiff as the Manager of the School. It is seen from the records that the first defendant who was to inherit the school, its properties and management by virtue of the clause in Ext.A1 Will, executed Ext. A2 gift deed in favour of the plaintiff gifting away the school, its properties and its management in her favour.
15. While the defendants would contend that the above act of the first defendant was in terms of Ext.B1 codicil and that would be sufficient to show that Raman Nair had infact executed the codicil, namely, Ext.B1, the RSA. 516/2011.
17courts below refused to accept that contention. The courts below were of the opinion that if as a matter of fact it was in terms of the codicil, that would have certainly found a place in Ext.A2 document.
16. A reading of Ext.B1 codicil shows that Raman Nair wanted the plaintiff to succeed to the management of the school as well as hold the properties of the school. His intention appears to be that as soon as the educational authorities approved the change, he intended to execute a gift deed of the properties attached to the school in favour of the plaintiff as could be seen from Ext.B1 codicil.
17. Learned Senior Counsel appearing for the appellants may be justified in his submission that merely because Ext.A2 does not make mention of the codicil, that can have no significance in the sense that the first defendant could have gifted the school, its properties and management only as per the terms of Ext.A1 Will by which it RSA. 516/2011.
18was to fall on him. The fact that he executed the gift deed in respect of the school, its properties and management might show that he was acting in terms of the codicil.
18. Exts. A4, A5, A6, A8, A9 and A10 are the correspondences with the educational authorities, the proceedings before the Taluk Land Board and land acquisition proceedings. It is true that in none of these documents there is any reference to Ext.B1 codicil. In fact in Ext.A4, the first defendant refers to Ext.A1 and mentioned that that is the last Will of Raman Nair. One may accept for argument sake that since the property that might have been surrendered by the plaintiff in the Taluk Land Board proceedings was considerably small extent and also that the compensation awarded in favour of the plaintiff under the Land Acquisition proceedings was only a meager amount might have persuaded the defendants from not putting forward the codicil in those proceedings in order to RSA. 516/2011.
19avoid complication. But still the question remained whether the codicil is proved in accordance with law.
19. In Halsbury's Laws of England - 5th Edition - Vol.102 under Note 1, it is observed as follows:
"A codicil is of similar nature to a will as regards both its purposes and the formalities relating to it, but in general it is supplemental to and considered as annexed to a will previously made, being executed for the purpose of adding to or varying or revoking the provisions of that will. A codicil is nevertheless capable of independent existence, so that the revocation of a codicil to it."
20. In Halsbury's Laws of India - 2nd Edition - Vol.38 at page 11, it is observed as follows:
"An instrument made in relation to a will and explaining, altering, or adding to its disposition and deemed to be a part of the will is a codicil. A codicil is appended to a will. The testamentary writing could be, therefore, more than one document, and it is the aggregate or the net result that constitutes the will.
The legal declaration must be a statement in conformity with the provisions relating to execution and attestation as provided by the Indian Succession Act RSA. 516/2011.20
1925 and must be made by a person competent to make it."
At page 43, it is observed as follows:
"By attestation is meant the signing of a document to signify that the attestor is a witness to the execution of the document; and by s 63(c) of the Indian Succession Act 1925, an attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable."
At page 48, under Note 300.062 regarding proof of attestation, it is mentioned as follows:
"Proof of attestation Proof of attestation requires proof of (1) the signature of the person executing the document; and (2) the signatures of attesting witnesses. Where attestation is not proved, the will is not valid. For a valid attestation of the will, the following conditions must be specified, namely:
RSA. 516/2011.21
(1) the will must be attested by at least two witnesses;
(2) each of these must:
(a) either see the testator sign or affix his mark to the will or see some other person sign the will in the presence and by the direction of the testator;
(b) receive from the testator a personal acknowledgment of his signature or mark or of the signature of such other person;
) sign the will; or
(d) sign in the presence of the testator.
There is no presumption of a valid attestation. There must be definite evidence about the presence of the executant at the time of attestation. An attestor cannot assign another person to attest the will on his behalf.
An attestor is not required to be described as the attesting witness in the will. Affixture of a mark by the attestor shall be considered a valid attestation.
Where all the attesting witnesses are dead, the will can be proved in the same manner as any other document. If only one attesting witness is examined, he shall speak not merely about the testator's signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the attestor. Where the attesting witness, who is called to RSA. 516/2011.
22
prove the execution, is not in a position to prove the attestation of the will by the second witness, the evidence of the witness called falls short of the mandatory requirements of law. When there is a declaration found in the will that the testator signed in the presence of both the witnesses, but if the attestor who is examined does not say so but states that there was already a signature of another attestor at the time when he went to sign the will, the attestation cannot be said to have been proved."
21. The proof of execution of codicil is in no way different from the proof of a Will. It has to be proved in accordance with Section 68 of the Indian Evidence Act. In the case on hand, both the attesting witnesses have been examined. However, they denied having seen the execution of the codicil by the testator. In the light of the said fact, it could not be said that the codicil has been proved as required under Section 68 of the Indian Evidence Act. But Section 71 of the Indian Evidence Act comes to the aid of the propounder.
RSA. 516/2011.
23
22. It has been held that the fate of a document cannot depend upon the whims and fancies of the attesting witnesses. There may be circumstances under which the attesting witnesses may not prove the execution for various reasons. Some of which may be deliberate. In Law of Evidence by Sir John Woodroffe and Syed Amil Ali - 17th Edition - Vol.2 at page 3028, it is observed as follows:
"The fate of a document is not necessarily at the mercy of the attesting witnesses. The mere fact that the attesting witnesses to a document repudiate their signatures or make statements suggesting that they attested at the instance of persons other than the executant does not invalidate the document, if it can be proved by evidence of a reliable character that they have given false testimony. The principle is well-settled that when the evidence of the attesting witnesses is vague, doubtful or even conflicting upon some material point, the court may take into consideration the circumstances of the case and judge from them collectively whether the requirements of the statute were complied with; in other words, the court may, on consideration of the other evidence or of the whole circumstances of the case, come to the conclusion that their recollection is at RSA. 516/2011.24
fault, that their evidence is of a suspicious character or that they are wilfully misleading the court, and accordingly disregard their testimony and pronounce in favour of the document. The section presupposes that the witness is actually produced before the court, and then, if he denies execution, or his memory fails, or if he refuses to prove, or turns hostile, other evidence can be admitted to prove execution. Before the section can be applied it is necessary to comply with S.68, Evidence Act and to call as a witness one at least of the attesting witnesses."
23. In Law of Evidence by Sarkar - 16th Edition - Vol.1 at page 1302, referring to Section 71 of the Indian Evidence Act, it is observed as follows:
"Section 71 is permissive and an enabling Section permitting a party to lead other evidence in certain circumstances. But Section 68 is not merely an enabling section. It lays down the necessary requirements, which the Court has to observe before holding that a document is proved. Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility cannot be let down without any other means of proving RSA. 516/2011.25
due execution by "other evidence" as well. At the same time Section 71 cannot be read so as to absolve a party of his obligation under Section 68 read with Section 63 of the Act and liberally allow him, at his will or choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the Court concerned and confer a premium upon his omission or lapse, to enable him to give a go bye to the mandate of law relating to proof of execution as a will.
The force of the rule is spent when the attesting witness is called. It is not necessary that he should speak favourably. If he positively denies execution, or his memory fails or he pretends not to recollect, it entitles the party to give other evidence of execution. This section lays down the mode of proof when attesting witness denies execution. Where attesting witness denies execution, forgets, refuses to prove or is hostile, other evidence is admissible to prove the document. If may be proved in the manner of documents not requried by law to be attested. It must however be remembered that S.71 comes into play only when all the attesting witnesses alive have been called or every attempt made to enforce their attendance and they deny or do not recollect execution. When only one attesting witness is called and he is not believed, it cannot be said that the provisions of S.68 have been complied with and no RSA. 516/2011.26
further evidence of execution and attestation is necessary."
24. Wigmore on Evidence - Vol. IV at page 720, under Note 1302, it is observed as follows:
"Accordingly, it is not necessary, as a part of the rule, that he should testify in favour of execution. The rule is satisfied by calling him, i.e., by making his testimony available for the trial. If his testimony fails to evidence the execution, the present rule says nothing about the consequences - whatever any other rule may say. The present rule's force is absolutely spent when the witness is produced for examination.
Here also policy agrees with principle; for the practical working of the rule, if it required that the witness should not only testify but testify favorably, (i.e., if the party desiring to prove execution must fail if the attesters failed to prove it) would be unfair and disastrous, especially in testamentary causes."
At page 721, it is observed as follows:
"Accordingly, the failure of the attester,from lack of memory, to prove execution, is not in itself any breach of the present rule; and, though the proponent RSA. 516/2011.27
has still to prove the execution in some sufficient way, he is no longer hampered by any rule about attesting witnesses."
At page 723, it is observed as follows:
"For the same reason, the attester's positive denial of the facts of execution, contradicting the statements implied or expressed in his attestation, leaves the proponent still free to prove by other testimony, if he can, the facts of due execution - a permission demanded not only by principle but also by policy, inasmuch as the proponent might otherwise be defeated of his rights by a corrupt attester."
25. As already noticed, the proof of codicil is in the same manner as in the case of proof of Will and Section 68 of the Indian Evidence Act will apply. However, if the attesting witnesses for reasons best known to them chose not to support the propounder in proving the due execution of the Will, it is not as if that the propounder has no other option. Section 71 come to his aid and enables him by circumstantial evidence or other evidence to prove the due RSA. 516/2011.
28execution. In the decision reported in Ittoop Varghese v. Poulose (1974 K.L.T. 873), it was held as follows:
"When the court is satisfied that the witnesses deliberately and falsely denied that they attested the will, the court is entitled to look into the other circumstances and the regularity of the will on the face of it and come to the conclusion on the question of attestation."
26. In the decision reported in Surendra Bahadur v. Behari Singh (AIR 1939 PC 117), it was held as follows:
"Their Lordships are prepared to assume that the proceedings in connexion with the registration were rightly and duly conducted by the Sub-Registrar; but even upon that assumption there is no evidence that he affixed his signature to the endorsement in the presence of Mr. Jamna Kunwar. It is provided by S.59, Registration Act, that he must affix his signature "on the same day" and in the absence of any evidence as to the time when he signed, it cannot be assumed that he signed the endorsement in the presence of Mr. Jamna Kunwar. Further, there is no evidence which would entitle their Lordships to hold that the witnesses who identified her signed the endorsement in Mt.Jamna Kunwar's presence, or that they heard her admit the completion and execution of the mortgage deed.
RSA. 516/2011.29
Section 60(2), Registration Act of 1908 provides that the certificate of the registering officer 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 endorsement referred to n Sec, 59, have occurred as therein mentioned. But the particulars which are to be endorsed or documents which are admitted for registration, under S.58, do not include statements as to the above mentioned facts, which, in their Lordships' opinion, are necessary for proving the due attestation of the mortgage deed according to the provisions of the Transfer of Property Act. Ss. 58, 59, and 60, Registration Act, therefore are of no avail to the appellants in this respect."
27. In the decision reported in Ajmer Singh v. Tirath Singh (AIR 1984 NOC 101), it was held as follows:
"Execution by testator and attestation by two witnesses stood duly proved by evidence of scribe and Sub-Registrar."
28. In the decision reported in Chacko v.
Elizabeth John (1997(1) K.L.T. 739), it was held as follows:
RSA. 516/2011.30
"Merely because an attesting choses to deny attestation of the document, the propounder of the will should not be without remedy. When the court is satisfied that witnesses deliberately and falsely denied that they attested the Will, court is entitled to look into the other circumstances and the regularity of the will on the face of it and to come to the conclusion on the question of attestation. The probate court is not powerless to declare in favour of the Will where attesting witnesses or some of them prove hostile and unreliable, if from other evidence on recored and the circumstances taken as a whole, the court is in a position to hold that the Will was duly executed and attested. Inadequacy of the evidence of the attesting witnesses should not stand in the way of granting probate."
29. The law is thus clear on the point. Even assuming that the attesting witnesses do not support the propounder's case, the propounder has to adduce other items of evidence or to rely on circumstances to prove that the Will or the codicil as the case may be was duly executed by the testator.
30. In the case on hand, the appellants rely on certain circumstances to establish that the codicil was infact RSA. 516/2011.
31executed by Raman Nair. It is pointed out by him that the statements given by the attesting witnesses that they had signed on blank papers and they were given the impression that Raman Nair wanted those papers for the proceedings before the Taluk Land Board on the very face of it cannot be accepted. The appellants would rely on the fact that the signature of Raman Nair on Ext.B1 is not disputed and it is inconceivable that Raman Nair would have obtained the signature of the attesting witnesses D.Ws.2 and 3 on blank papers. A look at Ext.B1 also, according to the appellants, would show that the story put forward by the attesting witnesses cannot be believed.
31. It is true that the plaintiff has not mounted the box. It was contended on behalf of the appellants that when there are disputed questions of fact, it was necessary for the plaintiff to mount the box and speak her case and her reluctance and shyness to mount the box would attract an adverse inference to be drawn against her. It is RSA. 516/2011.
32contended that had she mounted the box, she would have been confronted with various aspects and she would have to admit that exactly Ext.B1 codicil had been executed by Raman Nair. In order to avoid such a contingency, she deliberately remained away from the box.
32. Even assuming that there is some substance in the above contention, the question that arises for consideration is whether that by itself is sufficient to prove the due execution of Ext.B1 codicil apart from the fact that in various documents that came into existence after the death of Raman Nair, there is no reference of Ext.B1 codicil even though it had a bearing on the various aspects arising before various authorities. One may assume that that by themselves are not sufficient to create suspicion about the execution of Ext.B1 codicil.
33. Here one may refer to the decision cited by the learned Senior Counsel for the respondent reported in Joseph v. Ippunny (2007(4) K.L.T. 853) wherein it was held RSA. 516/2011.
33as follows:
"9. It is now settled law that it is for profounder to prove the Will. The maxim "probandi necessistas incumbit illi qui agit" means the necessity of proving his claim or contention lies upon him who brings the charge. Same is the principle behind the maxim "affirmandi incumbit probatio" which means the burden of proof lies with the party affirming and negatives cannot be proved. One alleging a fact is bound, when it is disputed, to prove it. Requirement of proof that the Will has duly been executed is on the profounder of the Will is settled in India by the Apex Court decisions, apart from the clear statutory provisions quoted earlier. In order to prove due attestation of the Will, the profounder will have to prove that testator has signed the Will, that too, in the presence of two witnesses and they themselves signed the same in the presence of the testator. Mere proof of the signature is also not enough. In Girja Datt Singh v. Gangotri Datt Singh (AIR 1955 SC
346), the Supreme Court held as follows:
"One could not presume from the mere signatures of Mahadeo Pershad and Nageshur appearing at the foot of the endorsement of registration that they had appended their signature to the document as attesting witnesses or can be construed to have done so in their capacity as RSA. 516/2011.34
attesting witnesses. S.68, Indian Evidence Act requires an attesting witness to be called as a witness to prove the due execution and attestation of the will. This provision should have been complied with in order that Mahadeo Pershad and Nageshur be treated as attesting witnesses. This line of argument therefore cannot help Gangotri".
............ ............
11. In Janki Narayan Bhoir v. Narayan Namdeo Kadam (AIR 2003 SC 761) also, it was held that mere proving the signature of the Will as that of the testator or witness is not enough. At paragraph 10 of the judgment, the Apex Court observed as follows:
"On a combined reading of S.63 of the Succession Act with S.68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the Will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by Cl.(c) of S.63 of the Succession Act. It is true that S.68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in S.63. Although S.63 of the Succession Act RSA. 516/2011.35
requires that a Will has to be attested at least by two witnesses, S.68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, S.68 gives a concession to those who want to prove and establish a Will in a Court of law by examining at least one attesting witness even though Will has to be attested at least by two witnesses mandatorily under S.63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a Will. To put in other words, if one attesting witness can prove execution of the Will in terms of clause (c) of S.63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by other witness also it falls short of attestation of Will at least by two RSA. 516/2011.36
witnesses for the simple reason that the execution of the Will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under S.63 of the Succession Act. Where one attesting witness examined to prove the Will under S.68 of the Evidence Act fails to prove the due execution of the Will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by the other witness there will be deficiency in meeting the mandatory requirements of S.68 of the Evidence Act."
34. A reading of the above decision shows that even assuming that it is proved that the Will contained the signature of the executor and also the signature of the attesting witnesses, the decision went on to hold that that by itself will not prove the due execution attestation of the Will. Unless it is shown that the executor had signed in the presence of the attesting witnesses and vis a versa, it could not be said that the due execution or attestation of the Will RSA. 516/2011.
37have been proved.
35. In a case where other persons were present at the time of execution of the Will, their evidence of due execution and attestation may be sufficient. Otherwise if the Will is a registered document, the evidence of Sub Registrar and the attesting witnesses may also be sufficient to prove the due execution of the Will. There may be compelling circumstances also which would point to the due execution of the Will.
36. In the case on hand, the propounder of the Will or any of the defendants have not seen the due execution of the Will by Raman Nair. There is no evidence as to who the scribe was and where was it written.
37. It is significant to notice that Ext.A1 is a holograph Will. There is some force in the submission made by the learned counsel for the respondents that Raman Nair as would appear from various acts done by him is a meticulous person and it is difficult to believe that he would RSA. 516/2011.
38have let the codicil to be written by someone else when he has taken immense care and caution in drafting Ext.A1 Will and writing it down in his own hand. The fact that the testimony of D.Ws.2 and 3 regarding the circumstances under which they happened to affix their signatures though may not be acceptable, that by itself does not lead to the conclusion that there is proof of execution of Ext.B1 codicil.
38. The first defendant was examined as D.W.1. He in his deposition says that he does not know whether the plaintiff was aware of the existence of the codicil at all. He has no case that he had informed the plaintiff about the codicil said to have been executed by Raman Nair. Here one should remember that Raman Nair died in 1974 and the suit comes only in the year 2000, as already noticed, 26 years after the death of Raman Nair. The defendants have not been able to prove that during all these 26 years they have acted in terms of the codicil or have taken any action to show that the plaintiff was aware of the existence of the RSA. 516/2011.
39codicil or that any act has been done in furtherance of the codicil. There is nothing to indicate that the plaintiff was made aware of the existence of the codicil. It is in this context the courts below were constrained to observe the consequences of the non-mentioning of Ext.B1 codicil in various correspondences with the Educational authorities and also in the proceedings before the Land Tribunal and land acquisition proceedings as circumstances creating suspicion regarding the execution of Ext.B1 codicil.
39. In the decisions referred to wherein it was held that even assuming that the attesting witnesses did not support the execution of the Will, due execution can be proved by other items of evidence, there were evidence either in the form of registration or in the form of a person who has actually seen the execution by the testator to show that the Will has been duly executed by the testator and the attestation was done in accordance with law. RSA. 516/2011.
40
40. In the case on hand, there is no evidence regarding the scribe of the Will and there is nobody to speak about having seen Raman Nair executing Ext.B1 and the attesting witnesses attesting the document. The fact that the first defendant executed Ext.A2 gift in respect of the property relating to school, its management cannot be taken as a ground to hold that the plaintiff was aware of the existence of Ext.B1 codicil and that she had accepted the same. True, the assignment by the first defendant can be only in terms of Ext.A1 Will. But the desire of the testator to have the plaintiff succeed to the management of the school and to hold its properties etc. is seen reflected in the codicil. It is under those circumstances that the courts below were inclined to hold that if as a matter of fact the codicil was in existence at the relevant time, mention to that effect would have been made in the said documents, in the proceedings before the educational authorities etc. One cannot omit to notice that in Ext.A4 which is a letter written RSA. 516/2011.
41by the first defendant to the AEO concerned in which it was categorically stated that Ext.A1 is the last Will of Raman Nair.
41. True that the plaintiff has stood to gain by the transactions. Probably there may be some justification in saying that the plaintiff should not be allowed to unduly enrich herself, but as long as there is want of proof regarding the due execution and attestation of Ext.B1 codicil, plaintiff cannot be deprived of her right. If that be so, that document can have no legal effect. The fact that the plaintiff may unduly enrich by itself is not a ground to hold that there is proof of due execution and attestation of Ext.B1 codicil.
42. The courts below were therefore justified in coming to the conclusion that the execution and attestation of Ext.B1 codicil has not been proved as is required by law. That finding is based on appreciation of evidence and does not suffer from any legal infirmity.
RSA. 516/2011.
42
The result is that this appeal is without merits and is liable to be dismissed. I do so. However, there will be no order as to costs.
P. BHAVADASAN, JUDGE sb.