Kerala High Court
V.V. Chandrasekharan vs V.V. Indira on 23 May, 2011
Bench: Thottathil B.Radhakrishnan, P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 577 of 2008()
1. V.V. CHANDRASEKHARAN, AGED 59,
... Petitioner
Vs
1. V.V. INDIRA, AGED 56,
... Respondent
2. MR. RAJENDRAKUMARI, AGED 38,
3. MR. RAJIMOL, AGED 31,
4. MR. RAJIMON,
5. MR. RAJAGOPAL,
For Petitioner :SRI.VIVEK VARGHESE P.J.
For Respondent :SRI.P.V.BALAKRISHNAN MEDIATOR
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :23/05/2011
O R D E R
THOTTATHIL B. RADHAKRISHNAN &
P. BHAVADASAN, JJ.
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R.F.A. No. 577 of 2008
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Dated this the 23rd day of May, 2011.
JUDGMENT
Bhavadasan, J, Late K.K.Velayudhan and late Dakshayani had three children, namely, the plaintiff, the first defendant and late Bharati, whose legal heirs are defendants 2 to 5. Velayudhan died on 6.10.1993 and his wife on 20.12.2000. In 2005 one of the daughters of Velayudhan, namely, Smt.V.V.Indira instituted O.S.655 of 2005 for partition on the basis that Velayudhan died intestate. First defendant is her brother.
2. The suit was resisted by the first defendant on the basis of a will said to have been executed by late K.K.Velayudhan dated 15.4.1993, by which he alone was entitled to succeed to the estate left behind by Velayudhan. Defendants 2 to 5 supported the plaintiff.
R.F.A.577/2008. 2
3. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws.1 and 2 and documents marked as Exts. A1 and A2 from the side of the plaintiff. The defendants had D.Ws. 1 to 3 examined and Exts.B1 to B7 marked. The trial court on an evaluation of the evidence found that the due execution and attestation of Ext.B1 will had not been established and accordingly passed a preliminary decree for partition. The first defendant in the suit assails the judgment and decree.
4. Learned counsel for the appellant contended that the finding of the court below regarding the will is unsustainable both in law and on facts. According to learned counsel, there was no dispute regarding the signature of the deceased on the Will. Evidence of D.Ws.2 and 3 are sufficient to show that the will was executed and attested as is required under law. According to learned counsel, the court below was not justified in holding that the due execution of the will has not been established since the attesting witnesses examined had not stated that he had seen the R.F.A.577/2008. 3 executor affix his signature on the will. Unfortunately for the first defendant, the other attesting witness was not available as he was no more. D.W.2 is the scribe and D.W.3 is the attesting witness to Ext.B1. None of the circumstances pointed out by the plaintiff to suspect the execution of the will are established and infact the plea was one of fraud. That being so, the burden was on the plaintiff to show that the will was vitiated due to fraud. Learned counsel has a case that burden has been wrongly thrown on the first defendant and that has resulted in miscarriage of justice.
5. Per contra, learned counsel appearing for the contesting respondents pointed out that the court below has appreciated the evidence on record and has come to the conclusion that due execution of the will is not proved. There are very many suspicious circumstances surrounding the execution of the will and there was no attempt from the side of the first defendant, who was the propounder of the will, to remove the suspicious circumstance and to prove the due execution and attestation of the will. After the death of Velayudhan in the year 1993 the will was put forward for the first time when the suit was instituted in 2005. At the relevant time R.F.A.577/2008. 4 Velayudhan was bed ridden with paralysis and was incapacitated. Learned counsel contended that it is trite that the burden is on the propounder of the will to establish that the will was duly executed and that it was free from suspicious circumstances. In the replication it was specifically averred that the will was not executed by Velayudhan and therefore it is idle for the appellant to say that the only contention was that the will was vitiated by fraud. The due execution and attestation was disputed and under such circumstances, the burden was on the first defendant to show that the will was duly executed. The lower court, according to learned counsel, has referred to the evidence of D.W.2, who is the scribe and D.W.3 an attesting witness and had come to the conclusion that the evidence furnished by them is totally insufficient to establish the due execution of the will. Attention was also drawn to the fact that the propounder of the will cleverly kept away from box and he had his wife examined on his behalf. According to learned counsel, no grounds are made out to interfere with the judgment and decree of the court below and the appeal is only to be dismissed. R.F.A.577/2008. 5
6. The issue therefore arises for consideration is whether the due execution of the will is proved.
7. The law regarding proof of will is well settled. Section 63 of the Indian Succession Act deals with the drawing up of a will. It reads as follows:
"63. Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare,or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the R.F.A.577/2008. 6 testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time,and no particular form of attestation shall be necessary."
8. As regards the proof of will, one has to refer to Section 68 of the Indian Evidence Act, which reads as follows:
"68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
R.F.A.577/2008. 7
9. Going by Section 63 of the Indian Succession Act the following things are required for a valid execution of the will: i) it must be in writing, ii) it must be duly signed by the testator and iii) it must be duly attested by atleast two witnesses. Going by the provision, it is necessary that the attesting witness should either see the testator sign the will or receive an acknowledgment from him about the signature in the will. It can also be seen that the attesting witnesses will have to sign in the presence of the testator. But it is not necessary that each attesting witness should see the other sign the document.
10. The word attestation is not defined either in the Indian Succession Act or in the Indian Evidence Act. However, the Transfer of Property Act defined the word 'attested', which reads as follows:
" "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen R.F.A.577/2008. 8 some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary."
11. It is by now well settled that the initial burden to prove the due execution and attestation of the will is on the propounder. But the proof required is like as of any other document except that atleast one of the attesting witnesses will have to be examined. It is common knowledge that in such proceedings the court is called upon to decide a solemn question and since the testator is not available to give evidence regarding the will, the duty of the court becomes more onerous. Apart from proving the due execution and attestation of the will, if there are any suspicious circumstance surrounding the execution of the will, then the propounder has an added burden to remove those suspicious circumstances to the satisfaction of the court. Registration of the will may be one of the R.F.A.577/2008. 9 circumstances which may go in favour of the execution of the will. But that by itself has not been treated as sufficient to prove due execution of the will. The basic decision regarding proof of wills is the decision reported in Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443), wherein it was held as follows:
"The party propounding a will or other wise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under S.67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the persons concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document R.F.A.577/2008. 10 in a Court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S.63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
However, there is one important feature which distinguishes will from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the work cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the R.F.A.577/2008. 11 will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus of the propounder can be taken to be discharged on proof of the essential facts just indicated."
12. In the decision reported in Meenakshiammal v. Chandrasekharan (AIR 2005 SC 52) it was held as follows:
"In the case of Madhukar D. Shende v. Tarabai Aba Shedage reported in (AIR 2002 SC 637), it has been held as follows:-
"8. The requirement of proof of a Will is the same as any other document excepting that the evidence tendered in proof of a Will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts R.F.A.577/2008. 12 and circumstances as emanating from the material available on record of a given case, the Court either believes that the Will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the Will was duly executed by the testator, then the factum of execution of Will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers. What was told by Baron Alderson to the Jury in R. v. Hodge, 1838, 2 Lewis CC 227 may be apposite to some extent - "The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected hole; and the more ingenuous the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete". The conscience of the Court has to be satisfied by the propounder of Will adducing evidence so as to dispel any suspicions or unnatural R.F.A.577/2008. 13 circumstances attaching to a Will provided that there is something unnatural or suspicious about the Will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict - positive or negative.
9. It is well-settled that one who propounds a Will must establish the competence of the testator to make the Will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. The contestant opposing the Will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the Court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same. The factors, such as the Will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a Will, the Court R.F.A.577/2008. 14 would not return a finding of 'not proved' merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a Will as against the person disputing the Will and the pleadings of the parties would be relevant and of significance."
13. In the decision reported in Niranjan Umeshchandran Joshi v. Mrudula Jyoti Rao (AIR 2007 SC 614) it was held as follows:
"Section 63 of the Indian Evidence Act lays down the mode and manner in which the execution of an unprivileged Will is to be proved. Section 68 postulates the mode and manner in which proof of execution of document is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Indian Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, R.F.A.577/2008. 15 on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.
The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai Shedage (2002) 2 SCC 85 and Sridevi and Ors. v. Jayaraja Shetty and Ors. (2005) 8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.
There are several circumstances which would have been held to be described by this Court as suspicious R.F.A.577/2008. 16 circumstances :-
(i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will;
(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit."
14. In the decision reported in S.R.Srinivasa v. S. Padmavathamma ((2010) 5 SCC 274) it was held as follows:
"This Court in Iyengar case had clearly held that cases in which the execution of the will is surrounded by suspicious circumstances, it may raise a doubt as to whether the testator was acting of his own free will. In such circumstances it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter. The presence of suspicious circumstances makes initial onus heavier. Such suspicion cannot be removed by the mere assertion of the propounder that the will bears signature of the testator or that the testator was in a sound and disposing state of mind at the time when the will was made.
R.F.A.577/2008. 17
In our opinion, the High Court failed to exercise proper care and caution by not throughly examining the evidence led by the party, especially when it was not in agreement with the reasons recorded by the first appellate court.
In Jaswant Kaur V. Amrit Kaur, the Court reiterated the principles governing the proof of a will which is alleged to be surrounded by suspicious circumstances. Chandrachud, J. speaking for the Court observed as follows:
"The defendant who is the principal legatee and for all practical purpose the sole legatee under the will, is also the propounder of the will. It is he who set up the will in answer to the plaintiff's claim in the suit for a one-half share in her husband's estate. Leaving aside the rules as to the burden of proof which are peculiar to the proof of testamentary instruments, the normal rule which governs any legal proceeding is that the burden of proving a fact in issue lies on him who asserts it, not on him who denies it. In other words, the burden lies on the party which would fail in the suit if no evidence were led on the fact alleged by him. Accordingly, the defendant ought to have led satisfactory evidence to prove the due execution of the will by its grandfather Sardar Gobinder Singh.
In cases where the execution of a will is shrouded in suspicion its proof ceases to be a simple lis between the R.F.A.577/2008. 18 plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will."
15. In the decision reported in Yumnam Ongbi Tampha Ibema Devi v. YumnamJoykumar Singh ((2009) 4 SCC 780) it was held as follows:
"As per provisions of Section 63 of the Succession Act, for the due execution of a will:
(1) the tester should sign or affix his mark to the will;
(2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a will;
(3) the will should be attested by two or more R.F.A.577/2008. 19 witnesses, and (4) each of the said witnesses must have seen the testator signing or affixing his mark to the will and each of them should sign the will in the presence of the testator.
The attestation of the will in the manner stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attested (sic attesting) witness should put his signature on the will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Since a will is required by law to be attested, its execution has to be proved in the manner laid down in the section and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document.
Therefore, having regard to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. The attesting witness should speak not only about the testator's signature or affixing his mark to R.F.A.577/2008. 20 the will but also that each of the witnesses had signed the will in the presence of the testator.
16. In the decision reported in K. Laxmanan v.
Thekkayil Padmini (AIR 2009 SC 951) it was held as follows:
"Strong reliance was placed on this provision also by the learned counsel appearing for the parties. A bare reading of the aforesaid provision will make it crystal clear that so far as a Deed of Will is concerned, the position in law is no longer in doubt for the onus of proving the Will is on the propounder. The propounder has to prove the legality of the execution and genuineness of the said Will by proving absence of suspicious circumstances surrounding the said Will and also by proving the testamentary capacity and the signature of the testator. Once the same is proved, it could be said that the propounder has discharged the onus.
When there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the Court and only when such responsibility is discharged, the Court would accept the Will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of R.F.A.577/2008. 21 the Court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. In such a case, the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. The aforesaid view is taken by us in consonance with the decision of this Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee [AIR 1964 SC 529] and Pushpavathi v. Chandraraja Kadamba [(1973) 3 SCC 291].
17. In the decision reported in Apoline D'Souza v. John D'Souza (AIR 2007 SC 2219) it was held as follows:
"The requirements to prove execution of the will are laid down under Section 63 of the Act only in the year 1925. The law has since undergone a change. In any event, this Court is bound by the decisions of this Court.
In Naresh Charan Das Gupta v. Paresh Charan Das Gupta [1954 SCR 1035] whereupon again reliance has been placed, this Court has categorically held : R.F.A.577/2008. 22
"........It cannot be laid down as a matter of law that because the witnesses did not state in examination-in- chief that they signed the will in the presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence. The finding of the Court below that the will was duly attested is based on a consideration of all the materials, and must be accepted..........."
The ratio of the said decision does not assist the appellant, as the mode and manner of proof of due execution of a will indisputably will depend upon the facts and circumstances of each case. It is for the propounder of the will to remove the suspicious circumstances, which has not been done in this case."
18. In the decision reported in Benga Behera v. Braja Kishore Nanda (AIR 2007 SC 1975) it was held as follows:
"A question has also been raised as to whether a certificate by Sub-Registrar at the time of registration proves attestation. A Sub-Registrar in the matter of registration of a document acts under the provisions of the Registration Act, 1908 (1908 Act). Section 52 of the R.F.A.577/2008. 23 1908 Act prescribes the duty of Registering Officer when document is presented in terms thereof. The signature of every person presenting a document for registration is required to be endorsed on every such document at the time of presentation. Section 58 prescribes the particulars to be endorsed on documents admitted to registration, such as;
"(a) Signature of the person admitting the execution of the document;
(b) Any money or delivery of goods made in presence of Registering Officer in reference to the execution of the document shall be endorsed by the Registering Officer in the document presented for Registration.
Therefore this is the only duty cast on the Registering authority to endorse on the Will, i.e. to endorse only the admission or execution by the person who presented the document for registration. The compliance of this provision leads to the legal presumption that the document was registered and nothing else."
If an authority in performance of a statutory duty signs a document, he does not become an attesting witness within the meaning of S. 3 of the Transfer of Property Act and S. 63 of the Succession Act. The term 'attestation' means :
"to 'attest' is to bear witness to a fact. The essential R.F.A.577/2008. 24 conditions of valid attestation are (i) two or more witnesses have seen the executant sign the instrument
(ii) each of them has signed the instrument in presence of the executant.
"Animus attestandi" is a necessary ingredient for proving the attestation. If a person puts his signature in a document only in discharge of his statutory duty, he may not be treated to be an attesting witness."
19. In the decision reported in Crystal Developers v. Asha Lata Ghosh (AIR 2004 SC 4980) it was held as follows:
"Similarly, in the case of Smt. Indu Bala Bose and Ors. v. Manindra Chandra Bose and Anr. reported in (AIR 1982 SC 133), it has been held that a circumstance would be "suspicious" when it is abnormal or is not normally expected in a normal situation or is not expected of a normal person."
20. From the above decisions, principles regarding proof of due execution of the will are clear. Requirements of valid attestation is also discernible from the above decisions and so also what one means by suspicious circumstance. Having thus R.F.A.577/2008. 25 understood the requirements of proof of a will, an attempt shall now be made to see whether in the case on hand execution of Ext.B1 is duly proved.
21. Before going into that aspect, the reasons which persuaded the lower court to hold that Ext.B1 is not a genuine document have to be looked into. They are,
i) Propounder not examined.
ii) There is evidence to show that the testator at the relevant time was 80 years of age and paralytic.
iii) The testator died within six months of execution of Ext.B1 will.
iv) D.W.3, the sole attesting witness does not say that he saw the executor signing the will.
v) The only attestor who was examined has an axe to grind against P.W.1.
22. It was pointed out that the suit was preceded by a notice by the plaintiff to the first defendant. Ext.A2 is the copy of the suit notice. A reply was sent by the defendant, which is Ext.B4 in R.F.A.577/2008. 26 which will was mentioned. It was contended on behalf of the appellant that even after knowing about the will there is no whisper regarding the will in the plaint. Only after the first defendant had filed his written statement came the replication assailing the will. Referring to the replication, it was pointed out that there was no case that the testator did not have the mental capacity to execute the will. But the case was one of fraud and collusion. Emphasis was laid on the fact that signature of the testator on the document had not been disputed. One of the attesting witnesses was examined and the other attesting witness was not available as he was no more. The appellant contended that the evidence of D.W.3 is sufficient to show that the will was duly executed and attested. Learned counsel for the appellant pointed out that even if there is some infirmity in the evidence of the attesting witness in that he had not specifically stated that he had seen the executor signing the document, that may not itself vitiate the will since that may be only a bonafide omission. On a reading of the evidence as a whole, if it is shown that the requirements have been met, that would be sufficient. In support of the above proposition learned counsel relied on the decisions reported in Naresh Charan Das Gupta v. Paresh Charan Das R.F.A.577/2008. 27 Gupta (AIR 1955 SC 363), Nagarajan v. Annammal (1990(1) HLR
68), Ladhi Bai v. Thakur Shriji (AIR 1968 Rajasthan 41) and Tara Chand v. Superintendent, District Jail, Rampur (1983 All. L.J. 16).
23. On going through the replication said to have been filed by the plaintiff, it is clear that the execution of the will itself has been disputed. Several contentions have been taken about the will in the replication. It is not right to say as contended by the learned counsel for the first defendant that the only plea against the will was one of fraud and collusion. It is true that the signature in Ext.B1 will is not disputed. Since the execution of the will had been disputed, the burden is on the propounder of the will, namely, the first defendant to prove due execution and attestation of the will.
24. The first defendant filed his affidavit in proof and marked as Exts.B1 to B3. Thereafter quite strangely he filed a petition supported by Ext.B6 document whereby it is contended that he is unable to hear or speak and his wife may be examined. His wife was examined as D.W.1. One may now have a look at Ext.B6. It reads as follows:
R.F.A.577/2008. 28
"Certified that Sri.V.V.Chandran, 60 yrs, residing at 57/652, Kattambully House, Karikkamuri Cross Road, Kochi 682 011 is known to me for the last two years. He has severe difficulty to speak and hear."
25. There is nothing in Ext.B6 to show that the first defendant was undergoing treatment under the doctor, who issued Ext. B6 certificate. All that is stated is that the first defendant is known to the doctor for the last two years. Ext.B6 also does not disclose that the first defendant is deaf and dumb, but only says that he has difficulty to speak and hear. It has come out in the evidence of D.W.1 that the first defendant is working as a security guard. The court below was of the opinion that solely on the basis of Ext.B6 document, it could not be said that the first defendant was incapable of giving evidence. The court below therefore came to the conclusion that it was a deliberate ploy adopted by the first defendant to keep away from box. It is also significant to note that the doctor who issued Ext.B6 was not examined to show that the first defendant could neither speak nor hear. On a consideration of Ext.B6 and the evidence of D.W.1 and the fact that the first defendant had initially R.F.A.577/2008. 29 chosen to file affidavit in chief, the conclusion drawn by the court below cannot be said to be erroneous.
26. Coming to the execution of the will, the stand taken by the plaintiff is that at the relevant time Velayudhan was bed ridden with paralysis and he was incapable of executing a will. D.W.2 is the scribe of the will. He says that he had written the will as per the directions given by Velayudhan. He has said that he has signed on the reverse side of the first page of the will. He also deposes that he has also signed as the scribe. His evidence is to the effect that the discussion about the drawing up of the will was done in the house of Adv. Narayana Iyyer. At the relevant time Adv.Narayana Iyyer, Velayudhan and he were present. His further evidence is to the effect that Ext.B1 will was signed at the house of Velayudhan. He says that in Ext.B1 will Bhaskaran and Adv.Narayana Iyyer signed as witnesses. His further evidence is that at the time of registration, he, Velayudhan, Adv. Narayana Iyyer and Bhaskaran were available there.
R.F.A.577/2008. 30
27. D.W.3 is the attesting witness, who was examined to prove due attestation of the will. He would say that Ext.B1 is the will executed by Velayudhan. According to him, Velayudhan had signed in all pages of the will. He says that he and Adv. Narayana Iyyer had signed in the will. At the time of execution of the will the testator was very old and he did not use to go for work, but his faculties were in tact. He too says that the will was signed in the house of Velayudhan. He further says that he had signed in the office of the Registrar also. According to him, he and Velayudhan signed in Ext.B1 will at the house of Velayudhan. At the Registrar's office, he and Mohanan, i.e. D.W.2 and Velayudhan were present.
28. The question is whether the evidence of these two witnesses is sufficient to prove the due execution of the will. The lower court found it insufficient.
29. A reading of the evidence of D.W.3 shows that he has not chosen to say that he had actually seen the testator sign the document.
R.F.A.577/2008. 31
30. In the decision relied on by the learned counsel for the appellant, Naresh Charan Das Gupta's case (supra) it was held as follows:
"It cannot be laid down as a matter of law that because the witnesses did not state in examination-in- chief that they signed the will in presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence."
31. In the above case the testator had not stated that the testator had signed in his presence. But one must notice that in the said case the Apex Court was considering the holograph will and all persons were present at the relevant time. It was in that context it was held that the bonafide omission cannot be taken aid of to hold against the will. In the decision reported in Nagarjuna's case (supra) what had happened was that the attestator had stated that he had seen the executor signing the will. But the attestator had not R.F.A.577/2008. 32 stated that executor had seen the him signing the will. When the contention raised was that there is no proof of due execution and attestation, the court held that a mere bonafide omission by itself is not fatal.
32. In the decision reported in Ladhi Bai's case (Supra) the issue that was considered was that in the absence of attesting witnesses stating that they had signed in the presence of the testator, whether the will is vitiated. Relying on the decision reported in Naresh Charan Das Gupta's case (supra) it was held that mere omission to say that the attesting witness had signed in the presence of the testator is not fatal.
33. In the decision reported in Sudama's case (supra) it was held as follows:
"The law does not require that the witnesses appearing in support of the will should in precise language state that they have seen the testator and the attesting witnesses sing the will in the presence of each other. All that is necessary is that the court must feel satisfied about the due execution of the will looking to all R.F.A.577/2008. 33 circumstances as laid in evidence. One cannot be too rigid in the assessment of evidence regarding the proof of the will and courts have to be pragmatic and liberal in this respect. It is true that if there is suspicious circumstances, every effort should be made to scrutinize the evidence more closely and minutely to achieve required degree of satisfaction but that does not mean that a party could be allowed to take any advantage of some technical defect in the evidence. The entire sequence of facts as narrated by the witnesses ought to be considered in a reasonable manner so as to form an opinion about the truth of their testimonies. If a firm opinion can be formed that the testator had executed the will in the presence of attesting witnesses and minor defects in the evidence can be explained in a reasonable manner, it should suffice and such evidence can be taken as sufficient proof of the will. In the instant case, every witness was unanimous that the transaction regarding the will took place at one sitting when all were present in the same room and a certain sequence of events followed i.e. the scribe identified the testator, the Notary read out the contents of the will ater which some endorsements were made by him on its back. The will was thereafter thumb marked by the testator followed by signatures of the attesting witnesses. There was no suggestion anywhere that any witness had an opportunity of going away when R.F.A.577/2008. 34 the will was being executed. Held, it could not be said that there was no clear statement to prove that the testator and the witnesses had signed the impugned will in the presence of each other."
34. It is interesting to note that the decision reported in Naresh Charan Das Gupta's case (supra) was considered in the decision reported in Apoline D'Souza v. John D'Souza (AIR 2007 SC 2219). It was held that the decision reported in Naresh Charan Das Gupta's case (supra) did not lay down any invariable rule regarding the attestation but held that the decision in each case depends upon the facts of that case and there is no strait jacket formula.
35. In the decision reported in Kunjipennu v. Chandrika (2003(3) K.L.T. SN 75 Case No.102) it was held as follows:
"As per S.63 of the Indian Succession Act, the testator shall sign the will in the presence of the witnesses and it shall also appear that the testator intended to give effect to the writing as a will. The witnesses would have seen the testator sigh or affix his mark to the will and each of the witnesses shall sign the R.F.A.577/2008. 35 will in the presence of the testator. As per S.68 of the Indian Evidence Act, if a document is is required by law to be attested, it shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. In the present case, one of the attesting witnesses was examined as D.W.2. He has not sworn that he has seen the testator putting his signature in the document and the testator saw the putting of signature by himself and the other witnesses, it is to be found that the ingredients in S.68 of the Indian Evidence Act also is not proved."
36. One has now to notice the evidence of D.Ws. 2 and
3. D.W.2 as already noticed is the scribe. He claims to be a licensed scribe. In cross examination he was asked as to when the will had been drawn up, he says that he will not be able to say the date on which it was drawn up. That is strange, because if he is a licensed document writer, he has to maintain statutory registers, which must contain an entry regarding the will drawn up by him. Even assuming that this omission is pardonable, the evidence of D.W.3 has to be closely scrutinized. He is one of the attesting R.F.A.577/2008. 36 witnesses to the document. True, in chief examination he does say that the will was signed by Adv.Narayana Iyyer also. But a reading of his evidence does not indicate the place from where Adv.Narayana Iyyer had signed in the document. His evidence shows that at the house of Velayudhan he and Velayudhan alone had signed in the will. He does not thereafter say that they went to the house of Adv.Narayana Iyyer and Adv.Narayana Iyyer had signed in the will. D.W.3 does not say that Adv.Narayana Iyyer had come to the house of Velayudhan. He also does not say that Adv.Narayana Iyyer was present in the registration office. One must remember that Adv.Narayana Iyyer was an Advocate by profession. Apart from the fact that D.W.3 has not stated that he had seen the testator signing the document, and also that the testator had seen him signing the will, the above infirmity also exists. It is not sufficient for the attesting witness to simply say that he had signed in the will.
37. Before going further, one aspect may be noticed. The plaintiff has a case that D.W.3, who is related to them has an axe to grind against her. He had persuaded late Velayudhan to sell the property and had made him to enter into an agreement and R.F.A.577/2008. 37 managed to have him receive Rs.30,000/- as advance. When that came to the notice of the plaintiff, she intervened and she paid off the vendee and retrieved the property. She has a case that thereafter her father entrusted the title deed with her. One has to notice that it was she who was holding the document of title of the property at the relevant time.
38. One may again go back to the evidence of D.Ws. 2 and 3. It is not discernible from their evidence as to at which place and when Adv.Narayana Iyyer, the other attesting witness had signed in Ext.B1. Recalling the evidence of D.W.2, he says that he signed at the house of Velayudhan. Of course, he does say that Narayana Iyyer also signed in the document. But D.W.3 has no case that at the relevant time when he signed in the will, which too was in the house of Velayudhan, either D.W.2 or Adv. Narayana Iyyer were present. In fact his specific statement in chief examination is that D.W.2, himself and Velayudhan had signed at the Registrar's office. R.F.A.577/2008. 38
39. The omission to mention therefore about the testator seeing the attesting witnesses sign the document and vis a viz in the case on hand cannot be treated as a mere omission as sought to be made out by the learned counsel for the appellant. In fact there is no evidence at all to show as to when Adv.Narayana Iyyer had affixed his signature in the document. Of course this court is not overlooking the recital in the last portion of the will that the testator had signed in the presence of the witnesses and the witnesses had signed in the presence of the testator. But that recital by itself is not sufficient to establish that Adv.Narayana Iyyer had signed in the will in the presence of the testator going by the oral evidence available in the case.
40. D.W.2, the scribe says that Adv.Narayana Iyyer, who was an Advocate did not have a clerk of his own and Adv.Narayana Iyyer used to directly file his cases, something which is extremely difficult to believe and he would go further and say that whenever Adv.Narayana Iyyer could not file the case, he used to take the help of D.W.2.
R.F.A.577/2008. 39
41. It is true that the signature of Velayudhan found in Ext.B1 is not disputed. It is also true that the will is a registered document. Normally registration by itself cannot be taken as a ground to hold that the will is genuine. But it is a circumstance, which go in favour of the will. In the case on hand, one may have a look at the endorsement by the Registrar. Before going into that aspect, the relevant provisions of law may be looked into.
42. Section 35 of the Registration Act deals with the procedure to be followed by the Registrar's office. Section 40 deals with the case of wills. Chapter 11 of the Registration Rules which relate to the rules pertaining to Section 34 of the Act deals with the procedure to be followed by the Registrar. The endorsement in Ext.B1 will does not seem to conform to the requirements under law.
43. There is yet another aspect. D.W.1 in cross examination had admitted that Velayudhan had suffered paralysis. In re-examination leading questions have been asked and answers elicited. It is not possible to understand how those questions could have been permitted in view of Section 142 of the Indian Evidence R.F.A.577/2008. 40 Act and none of those answers can therefore be taken note of. In fact D.W.1 says that the will was executed after Velayudhan had recovered from paralysis. One must recall here that Velayudhan died within six months from the date of execution of Ext.B1 will.
44. It is in this context, one will have to view the non-examination of the Registrar to prove that the statutory procedure has been followed. The plaintiff has a case that Velayudhan was not in a position to move about as he was bed ridden. While the first defendant has a case that he was capable of moving about. There is atleast evidence of D.W.1 to show that Velayudhan was suffering from paralysis and it was therefore incumbent on the part of the propounder of the will to establish that Velayudhan had infact gone to the Registrar's office. Of course D.Ws. 2 and 3 say so, but their evidence has already been dealt with.
45. This aspect was considered in the decision reported in Joseph Antony Lazarus v. A.J. Francis ((2006) 9 SCC 515) wherein it was held as follows:
R.F.A.577/2008. 41
"The last and perhaps the most significant aspect of this matter is the failure of the appellant to examine the learned advocate who is said to have drafted the Will on the instructions of the testatrix and the non-examination of the Sub-Registrar before whom the Will is said to have been presented for registration. Both the said witnesses could have conclusively proved the facts relating to the preparation, execution and registration of the will. In the absence of any evidence, we are unable to ascertain as to whether the will was ever read over and explained to the testatrix before she is said to have executed and presented the same for registration."
46. It is also not possible to gather from the evidence adduced as to who has taken the will from the Registrar's office after registration. It is not possible to understand from where the will was discovered and who discovered the same. One may again observe here that in the light of these circumstances, the non-examination of the first defendant on the basis of Ext.B6, which is too fragile and brittle proves fatal to the contesting defendant. D.W.1 has a case that the will was executed by Velayudhan after consulting everybody and everyone knew about the will, including the neighbours. If that be so, it would have been only proper on the part of the first R.F.A.577/2008. 42 defendant to examine any one of them, who was aware of the will as claimed by D.W.1.
47. There is also nothing to show that after the death of Velayudhan, the contents of the will was disclosed to anybody or any action was taken in pursuance thereof. Of course Velayudhan's wife had a life estate over the property. She died only in 2000. However, there is nothing to indicate that after the death of Velayudhan, the will has been acted upon to the knowledge of other legal heirs of Velayudhan.
48. It was the above factors, which had persuaded the court below to hold against the first defendant regarding the will.
49. Non-examination of the propounder of the will, the infirmities in proof regarding the execution and attestation of the will, the non-examination of the Sub Registrar etc. as already mentioned create considerable doubt regarding the genuineness of Ext.B1 will. At any rate, the view taken by the lower court is a possible view. Since the lower court had the opportunity to see the demeanor of R.F.A.577/2008. 43 witnesses has come to the conclusion that the will cannot be held to be genuine and since it is not shown that the finding is either perverse or unwarranted by the evidence on record, no interference is called for. Probably a different view may be possible. But that is not a ground for the appellate court to interfere unless it is shown that the finding is wholly unjustified.
The result is that this appeal is without merits and it is only to be dismissed. We do so. There will be no order as to costs.
Thottathil B. Radhakrishnan, Judge P. Bhavadasan, Judge sb.