Kerala High Court
C.M.Sobhana vs T.M.Janaki Amma on 19 November, 2010
Bench: Thottathil B.Radhakrishnan, P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 333 of 2005(B)
1. C.M.SOBHANA, D/O.LATE KRISHNAN NAMBIAR,
... Petitioner
2. C.M.KRISHNA KUMAR,
Vs
1. T.M.JANAKI AMMA,
... Respondent
2. C.M.DAYANANDAN,
3. C.M.HAREENDRAN,
4. C.M.KANCHANA, D/O.LATE KRISHNA NAMBIAR,
5. C.M.SANAL KUMAR,
6. C.M.CHANDRA BHANU,
7. C.M.UDAYA BHANU,
8. C.M.SWAPNA,
For Petitioner :SRI.M.VIJAYAKUMAR
For Respondent :SRI.V.R.KESAVA KAIMAL
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :19/11/2010
O R D E R
THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ.
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R.F.A. No. 333 of 2005
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Dated this the 19th day of November, 2010.
JUDGMENT
Bhavadasan, J, Late Krishnan Nambiar and the first plaintiff had nine children. Four of them, along with their mother, instituted O.S. 85 of 2002 and the other children were shown as the defendants in the suit.
2. The suit was one for partition. Properties admittedly belonged to Krishnan Nambiar, who is no more. A schedule consists of two items of immovable properties and B schedule are movables. The plaintiffs claimed 5/10 shares.
3. The suit was mainly resisted by defendants 1 and 2, who put forward a Will said to have been executed by Krishnan Nambiar on 23.11.1996. As per that Will, 9.17 cents of land with the building therein RFA.333/2005. 2 out of 21 cents shown as item No.1 in A schedule was bequeathed to defendants 1 and 2. They therefore contended that that extent of property with the building therein was not available for partition.
4. The court below refused to accept the Will and decreed the suit as prayed for. Defendants 1 and 2 assail the preliminary decree in this appeal.
5. Learned counsel appearing for the appellants criticized the judgment of the lower court on the ground that the court below has not considered the relevant aspects and has taken into consideration irrelevant factors to come to the conclusion that the Will is not genuine. The court has been influenced by extraneous considerations and has not adverted itself to the law on the subject and has infact misdirected itself both on facts and in law. The reason given to disbelieve D.W.2, the attesting witness to the Will is totally RFA.333/2005. 3 unsustainable. There was no justification to come to the conclusion that the Will is shrouded in suspicious circumstances and it does not appear to be genuine. Learned counsel in support of the contention that the Will ought to have been accepted relied on the following decisions:
Joseph v. Ippunny (2007(4) KLT 853), Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande ((2003) 8 SCC 537) and Satyanarayana v. Seetharatnam (2005(4) KLT SN 80).
6. Emphasizing that none of the grounds relied on by the court below to reject the Will is justified, learned counsel went on to point out that the property covered by Ext.B1 Will ought to be excluded from partition.
7. Learned counsel appearing for the respondents on the other hand contended that the court RFA.333/2005. 4 below has taken note of several suspicious circumstances, which the propounders were unable to explain to the satisfaction of the court. Only one of the attesting witnesses had been examined. The Will is of the year 1996. A reading of the evidence of D.W.2, the attesting witness, will clearly show that he was not at all familiar with the testator and the evidence of the propounder, namely, D.W.1, is far from convincing. The court below has also noticed that there is considerable difference in the signatures of Krishnan Nambiar on Ext.B1 Will and his admitted signature found in Ext.A1. Supporting the judgment of the court below, learned counsel contended that there was no reason to interfere with the preliminary decree passed by the court below.
8. The question that arises for consideration is whether the finding of the court below that the Will has not been proved is correct and justified. RFA.333/2005. 5
9. The two main aspects, which impressed the court below, were that the genuineness of the Will was not established and the suspicious circumstances were not dispelled. While the contention of the contesting defendants is that there was no justification to suspect the genuineness of the Will and the evidence of D.W.2, the plaintiffs in the suit contend otherwise.
10. Before going into the facts and the evidence in the case, it will be useful to refer to the law regarding the making of a Will and the proof of Wills.
11. The Will is a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death. It is revocable during the lifetime of the testator and it is known as ambulatory in nature. The law regarding the Wills is contained in Section 63 of the Indian Succession Act, which is concerned with the RFA.333/2005. 6 drawing up of the Will and Section 68 of the Indian Evidence Act deals with the proof of a Will. Section 63 of the Indian Succession Act 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.
) 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 RFA.333/2005. 7 seen some other person sign the Will, in the presence and by the direction of the 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."
12. Going by the above provision, a Will must be executed according to the following rules:
i) The testator must sign or affix his mark to the Will or it must be signed by some other person in his presence and by his direction.
ii) The signature or mark must be so placed as to appear that it was intended to give effect to the writings of the Will.
RFA.333/2005. 8
iii) The Will must be attested by two 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 testator or having received the personal acknowledgment from the testator of his signature or mark or the signature of such other person. Each of the witnesses must sign the Will in the presence of the testator.
13. It is not necessary that the attesting witnesses should see each other signing the Will. It is significant to notice that while it may not be necessary for the testator to affix his signature on the Will in the presence of the attesting witnesses, since acknowledgment of his signature would be sufficient, in the case of attesting witnesses, they have to affix the RFA.333/2005. 9 signature in the presence of the testator. A person of sound mind, not being a minor, can execute a Will.
14. Section 68 of the Indian Evidence Act 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." RFA.333/2005. 10
15. Going by the above provision, in the case of a Will, it is necessary to examine atleast one of the two attesting witnesses to prove the due execution and attestation of the Will. In cases where the attesting witnesses are not available, Section 69 of the Indian Evidence provides for other modes of proof.
16. It is by now well settled that the burden of proof of a Will is on the propounder. He must prove that the Will was duly executed and attested. Execution means the testator executed the deed with a sound disposing state of mind and was fully conscious of what he was doing and the nature of disposition made by him.
17. Attestation means the act in relation to the execution of an instrument. It means signing a document for the purpose of testifying the signature of the executant. A person is not an attesting witness, unless he puts his signature on the Will animo RFA.333/2005. 11 attestandi, that is, signing the Will after seeing the testator sign. There seems to be no bar even for a minor to be an attestor unless the court feels that the understanding of the minor is affected by tender years. The effect is that a Will should satisfy the following ingredients:
i) The testator should have testamentary capacity.
ii) The Will should contain the signature of the testator.
iii) Will was duly attested by atleast two witnesses and
iv) There should be proof of execution of the Will.
18. Since the Will speaks after the death of the person concerned, proceedings involving a Will contain an element of solemnity in it. Apart from the burden RFA.333/2005. 12 cast on the propounder to prove due execution and attestation of the Will, in case suspicious circumstances are pointed out regarding the execution of the Will, there is an added burden on the propounder to explain to the satisfaction of the court those suspicious circumstances and satisfy the conscience of the court. He has to establish that the Will in question is the last testamentary disposition of the testator. Once it is shown that the Will has been duly executed and attested, then the nature of disposition made as per the document is of little consequence. It is not the concern of the court to determine whether the distribution is fair, just, or unconscionable, unjust or unfair. The bequest may be foolish, but it is not within the province of the court to consider the wisdom of the bequest. It is not possible to catalogue as to what are the suspicious circumstances. It varies from case to case. It arises essentially out of a RFA.333/2005. 13 factual situation. Some of the factors, which may be used for the determination of the validity of the Will are
i) proof of genuineness of the signature or mark of the testator, ii) the mental capacity of the testator to execute the Will, iii) the level of the testator's comprehension of the nature and effect of the disposition, iv) the fact or otherwise of the signature in the document by the testator of his own free will, v) suspicious circumstances such as shaky handwriting, a feeble and debilitated mental condition or an unnatural disposition, vi) the part played by the propounder of the Will in securing the instrument of Will, vii) incorrect information regarding the relatives, viii) the exclusion of natural heirs without assigning any reasons for it and ix) a literate testator affixing thumb impression on the Will. Once the execution is properly proved, then, the propriety of the disposition made as per the Will may RFA.333/2005. 14 not be an issue that arises for determination of the court. Merely because a Will is registered, it does not lead to the conclusion that the Will is a genuine one. The act of execution denotes the authenticity of the contents of the writing of the Will and means accepting the recitals in the document. All attendant circumstances having nexus with the execution of the Will and the testamentary capacity of the testator have to be taken into consideration.
19. It is by now well settled that it is sufficient that only one of the attesting witnesses need to be examined to prove the due execution and attestation of the Will. Proof of attestation requires proof of i) the signature of the person executing the document and ii) the signature of the attesting witnesses. For a valid Will, the Will should be attested by two or more attesting witnesses. Each of them must either see the testator RFA.333/2005. 15 sign or affix his mark on the Will or receive a personal acknowledgment of the testator or signature of such other person. Each of them should sign the Will and that should be done in the presence of the testator. In cases where only one of the attesting witnesses is examined, it is necessary for him to speak about the attestation by the other witness also. Otherwise, both the attesting witnesses will have to be examined.
20. There is no specific standard for the proof of a Will. Proof of a Will is like any other document especially for the special need of proof as per Section 68 of the Indian Evidence Act. Some of the decisions on the point may now be referred to.
21. In the decision reported in Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443), which has been considered as the locus classicus on the point, it is stated as follows:
RFA.333/2005. 16
"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 RFA.333/2005. 17 proof which must be satisfied by the party who relies on a document 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, RFA.333/2005. 18 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 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 RFA.333/2005. 19 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."
22. Following the decision in Venkatachala Iyengar's case (supra) in the decision reported in Shashi Kumar v. Subodh Kumar (AIR 1964 SC 529) it was held as follows:
"The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S.63, Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious RFA.333/2005. 20 circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition 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. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, RFA.333/2005. 21 that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations."
23. In the decision reported in Benga Behera v. Braja Kishore Nanda (AIR 2007 SC 1975) the question as to what constitutes execution and attestation and what are the suspicious circumstances and the burden of the propounder have been discussed. There, it has been held as follows:
"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:
RFA.333/2005. 22
"to 'attest' is to bear witness to a fact. The essential 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.
We may, however, notice that in B. Venkatamuri v.C.J. Ayodhya Ram Singh and others (2006(1) SCALE 148), this Court upon considering a large number of decisions opined that proof of execution of Will must strictly satisfy the terms of S.63 of the Indian Succession Act. It was further more held:
"It is, however, well settled that compliance of statutory requirements itself is not sufficient as would appear from the discussions hereinafter made."
RFA.333/2005. 23
It was observed:
"Yet again S.68 of the Indian Evidence Act postulates the mode and manner in which proof of execution of document required by law to be attested stating that the execution must be proved by at least one attesting witness, if an attesting witness is alive and subject to the process of the Court and capable of giving evidence."
It was emphasised that where there are suspicious circumstances, the onus would be on the propounder to remove the suspicion by leading appropriate evidence stating:
"However, having regard to the fact that the Will was registered one and the propounder had discharged the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the Court Affirmatively that the testator did not know well the contents RFA.333/2005. 24 of the Will and in sound disposing capacity executed the same.
Each case, however, must be determined in the fact situating obtaining therein.
The Division Bench of the High Court was, with respect, thus, entirely wrong in proceeding on the premise that compliance of legal formalities as regards proof of the Will would subserve the purpose and the suspicious circumstances surrounding the execution thereof is not of much significance.
The suspicious circumstances pointed out by the learned District Judge and the learned single Judge of the High Court, were glaring on the face of the records. They could not have been ignored by the Division Bench and in any event, the Division Bench should have been slow in interfering with the findings of fact arrived at by the said Court. It applied a wrong legal test and thus, came to an erroneous decision."
RFA.333/2005. 25
Yet again in in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and others (2006 (14) Scale 186), this court held:
"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 stats that execution of Will must be proved atleast 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 S.68 of the Indian Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there RFA.333/2005. 26 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.
The burden of proof that the Will has been validly executed and is a genuine document is one 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 RFA.333/2005. 27 burden would be on the caveator. Subject to above, proof of a will does not ordinarily differ from that of proving any other document."
Noticing B. Venkatamuni, it was observed:
"The proof of a Will is required not as a ground of reading the document but to afford the judge reasonable assurance of it as being what it purports to be.
We may, however, hasten to add that there exists a distinction where suspicions are well founded and the cases where thee are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The Court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is demanded from the judge even there exist circumstances of grave suspicion." RFA.333/2005. 28
24. In the decision reported in Bharpur Singh v. Shamsher Singh ((2009) 3 SCC 687), it has been held as follows:
"This Court in H. Venkarachala Iyengar v. B.N. Thimmajamma opined that the fact that the propounder took interest in execution of the will is one of the factors which should be taken into consideration for determination of due execution of the will. It was also held that:
"one of the important features which distinguishes a will from other documents is that 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." RFA.333/2005. 29
"Suspicious circumstances like the following may be found to be surrounded in the execution of the will:
(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
(ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
(iv) The dispositions may not appear to be the result of the testator's free will and mind.
(v) The propounder takes a prominent part in the execution of the will.
(vi) The testator used to sign blank papers.
(vii) The will did not see the light of the day for long.
RFA.333/2005. 30
(viii) Incorrect recitals of essential facts.
The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not. It may be true that the will was a registered one, but the same by itself would not mean that the statutory requirements of proving the will need not be complied with."
25. In the decision reported in K. Laxmanan v. Thekkayil Padmini ((2009) 1 SCC 354) it has been held as follows:
"Since we are concerned with the legality of execution of the deed of will and the deed of gift, Section 68 of the Act would have some relevance, 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 RFA.333/2005. 31 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."
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 by proving absence of suspicious circumstances surrounding the RFA.333/2005. 32 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 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, RFA.333/2005. 33 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.
So far as Section 68 of the Act is concerned, it categorically provides that a will is required to be attested and therefore, it cannot be used as evidence until at least one of the attesting witnesses is called for the purpose of proving its execution provided such attesting witness is alive, and subject to the process of the court and capable of giving evidence."
26. In the decision reported in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao (AIR 2007 SC 614) it has been 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 RFA.333/2005. 34 manner in which proof of execution of document is required by law to be attested. It in unequivocal terms stats that execution of Will must be proved atleast 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 S.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, 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 one the propounder. The propounder is also RFA.333/2005. 35 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. Subject to above, proof of a will does not ordinarily differ from that of proving any other document.
We may, however, hasten to add that there exists a distinction where suspicions are well founded and the cases where there are only suspicions alone. Existence of suspicious RFA.333/2005. 36 circumstances alone may not be sufficient. The court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is demanded from the Judge even there exist circumstances of grave suspicion."
27. In the decision reported in Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh ((2009) 4 SCC 780) it has been held as follows:
"As per provisions of Section 63 of the Succession Act, for the due execution of a will:
(1) the testator 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 witnesses, and RFA.333/2005. 37 (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 of 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 RFA.333/2005. 38 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 the will but also that each of the witnesses had signed the will in the presence of the testator."
28. In the decision reported in Gurdev Kaur v. Kaki ((2007) 1 SCC 546) it has been held as follows:
"The findings arrived at by the High Court are totally erroneous. The court does not sit in appeal over the testator's decision. The court's role is limited to examining whether the instrument propounded as the last will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind.
..........The court does not sit in appeal over the right or wrong of the testator's RFA.333/2005. 39 decision. The court's role is limited to examining whether the instrument propounded as the last will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last will, that the court looks into the nature of the bequest.
.........The contentions of the will have to be appreciated in the context of the circumstances. The contents of the will have to be appreciated in his circumstances, and not vis-a-vis the rules for intestate succession. It is only for this limited purpose that the court examines the nature of bequest. The court does not substitute its own opinion for what was the testator's will or intention as manifested from a reading of the written instrument. After all, a will is meant to be an expression of his desire and therefore, may RFA.333/2005. 40 result in disinheritance of some and grant to another.
.........If a will appears on the face of it to have been duly executed and attested in accordance with the requirements of the statute, a presumption of due execution and attestation applies."
29. In the decision reported in S.R. Srinivasa v. S. Padmavathamma ((2010) 5 SCC 274) it has been held as follows:
"In H. Venkatachala Iyengar v. B.N. Thimmajamma, Gajendragadkar, J. stated the true legal position in the matter of proof of wills. The aforesaid statement of law was further clarified by Chandrachud, J. in Jaswant Kaur v. Amrit Kaur as follows:
"1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction RFA.333/2005. 41 of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, 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.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. RFA.333/2005. 42
Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding RFA.333/2005. 43 them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion, etc. in regard to the RFA.333/2005. 44 execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
30. In the decision reported in Syed Askarihati Ali Augustine Imam v. State (Delhi Administration) ((2009) 5 SCC 528) it has been held as follows:
"The genuineness of the will must be gone into. Law envisages not only genuineness of the will but also explanation to all the suspicious circumstances surrounding thereto besides proof thereof in terms of Section 63
(c) of the Succession Act, and Section 68 of he Evidence Act."
RFA.333/2005. 45
31. In the decision reported in Balathandayutham v. Ezhilarasan ((2010) 5 SCC
770) it has been held as follows:
"When a will is surrounded by
suspicious circumstances, the person
propounding the will has a very heavy burden to discharge. This has been authoritatively explained by this Court in H.Venkatachala Iyengar v. B.N. Thimmajamma. P.B. Gajendragadkar, J. (as His Lordship then was) in para 20 of the judgment, speaking for the three-Judge Bench in H.Venkatachala held that in a case where the testator's mind is feeble and he is debilitated and there is not sufficient evidence as to the mental capacity of the testator or where the depositions in the will is unnatural, improbable or unfair in the light of the circumstances or it appears that the bequest in the will is not the result of the testator's free will and mind, the court may RFA.333/2005. 46 consider that the will in question is encircled by suspicious circumstances."
32. Having thus understood the requirements under law for drawing a Will and the proof of a Will and its due attestation, an endeavour shall now be made to find out whether the Will involved in these proceedings satisfy the above requirements. Before going into that question, it will be useful to ascertain the factors which persuaded the court below to hold against the Will. Mainly there are three grounds and they are i) the attesting witness, namely, D.W.2 was found to be unfamiliar with the testator, ii) the attesting witness, D.W.2, knows the second defendant, who is the propounder of the Will, very well and iii) the court on comparison of the signatures on the Will and admitted RFA.333/2005. 47 documents, found the signature on the Will to be different.
33. The Will is dated 23.11.1996. The testator died on 18.6.1997. The suit was brought on 3.4.2002. The written statement of defendants 1 and 2 were filed on 9.10.2002. The Will was produced on 26.11.2003. P.W.1 was examined on 17.3.2004.
34. It is significant to notice that even though in their written statement, defendants 1 and 2 put forward the Will, there was no replication from the side of the plaintiffs regarding the validity or otherwise of the Will. The plaint is totally silent regarding the Will. Of course they can say that they came to know about the execution of the Will through the written statement filed by defendants 1 and 2. But normally that would have prompted the plaintiff to file a replication making their stand clear about the Will. It is true that in the decision RFA.333/2005. 48 reported in K. Laxmanan's case (supra) it has been held that the replication is not a must. But a reading of the said decision shows that there were affidavits filed by the persons concerned in the court challenging the genuineness and validity of the Will in interlocutory proceedings and those were accepted on record. Under such circumstances it was held that non-filing of a replication may not be of much consequence. Such affidavits are conspicuously absent in the present case. However, it may not be possible to hold that merely because a replication is not filed, the execution of the Will is deemed to have been admitted as it could not be said that it was not specifically denied.
35. Ext.B1 Will in question deals with 9.17 cents of land and a building therein out of the total extent of 21 cents. As already noticed, there is no dispute regarding the fact that the property belonged RFA.333/2005. 49 absolutely to Krishnan Nambiar, who is no more. Evidence in the case shows that all his daughters are married and they are residing with their husband and they are well placed. The sons of Krishnan Nambiar and the first plaintiff, except the second defendant, are well placed. The second defendant is only an LIC agent. It is the admitted case of both the parties that the second defendant with his family was residing with his parents. Of course, there is an allegation by the first plaintiff, who was examined as P.W.1, that the second defendant was ill-treating his parents. The ill-treatment became more intense after the demise of Krishnan Nambiar. Those acts by the second defendant is said to have compelled the first plaintiff to take up residence with the third plaintiff, whose wife had left him.
36. Ext. B1 Will confers life estate on the first plaintiff. After bequeathing 9.71 cents with a building RFA.333/2005. 50 therein to the first and second defendants as per the Will, the rest of the property is to be shared equally by the other children of Krishnan Nambiar.
37. Quite fortunately, the testamentary capacity of Krishnan Nambiar is not in dispute. The stand of the plaintiffs seem to be that the Will is a fabricated one and it does not contain the signature of the testator.
38. One may now refer to the evidence in the case. As already noticed, the first and second defendants are the propounders of the Will and therefore the initial burden to prove the due execution and attestation of the Will is on them. The second defendant examined himself as D.W. 1 and one of the attesting witnesses was examined himself as D.W.2. One may first refer to the evidence of D.W.2.
RFA.333/2005. 51
39. The evidence of D.W.2 shows that Krishnan Nambiar was very familiar to him. According to him, Krishnan Nambiar used to conduct cases in the Land Tribunal and D.W.2 was a clerk of an Advocate. He identifies the signature of the testator in Ext.B1 and according to him the Will was signed in the office of Adv. Gangadharan Nair. The Will was got prepared by Krishnan Nambiar. He then deposes that in his presence Krishnan Nambiar affixed his signature. That was followed by the signature of Haridas, who is the other attesting witness and D.W.2 says that he signed in the document as an attesting witness. He categorically stated that Krishnan Nambiar had seen both him and Haridas signing the document. At the relevant time, according to him, Krishnan Nambiar was keeping good health.
RFA.333/2005. 52
40. In cross-examination, it has come out that that as on the date of affixing signature on the Will, D.W.2 was doing business at Kannur. He had stated that he knows the second defendant for the last seven years. He deposed that when he reached the place, Krishnan Nambiar was having the prepared Will with him. He also states that he had seen the other attesting witness for the first time at the time of execution of the Will. He was unaware as to who was the scribe of the Will. He deposed that he does not know the wife and children of Krishnan Nambiar except the second defendant. He denied the suggestion that he was giving evidence at the behest of the second defendant.
41. Now one may refer to the evidence of one of the propounders, namely, the second defendant, who is examined as D.W.1. As per his evidence, his father passed away on 18.6.1997. He generally speaks about RFA.333/2005. 53 the terms in the Will and says that it was executed by his father. In cross-examination he speaks about the manner in which his father obtained the properties. It is also stated that the suggestion about the Will was given to him by his brother in law, i.e. the husband of the first defendant. He was so informed after the death of his father. He happened to come across the Will while searching through the drawer of the table of his father. He happened to discover the Will five to six months after the death of his father. He is unable to say who is the scribe of the Will. Among the two witnesses, he says that he is familiar with the witness, who hails from Payyannur. He came to know about the other witness from D.W.2. He denied that there was any difference in the signature found on the Will and in Ext.A1 partition deed, which also contains the signature of his father. RFA.333/2005. 54
42. On behalf of the plaintiffs, the first plaintiff, that is the mother of the defendants is examined as P.W.1. It is admitted by her that she and her husband were residing along with the second defendant and his family in the house involved in this proceedings. Other sons were residing in their places of employment and daughters were residing in their husband's house. She denied that her husband had executed any Will and also denied the signature found in Ext.B1 Will. However, she has no quarrel about the testamentary capacity of Krishnan Nambiar. In cross examination it was brought out that Krishnan Nambiar was a clerk attached to the Magistrate Court and after retirement he used to conduct cases in the Land Tribunal. Krishnan Nambiar was aware of the legal issues. As per her evidence, she owned 37 cents of property. Out of that 37 cents, she gave 20 cents to the fourth plaintiff and 5 cents to the RFA.333/2005. 55 fifth plaintiff. She also says that even during the life time of her husband, the second defendant ill-treated them. She then says that she took shelter in the house of the third plaintiff, whose wife had left him.
43. The court below observed that i) there was no reason to prefer defendants 1 and 2 to the other children of Krishnan Nambiar, ii) no reason to disinherit the first plaintiff iii) the court on comparison of signatures in Ext.A1 and Ext.B1 upholds that the signature in Ext.B1 is not that of Krishnan Nambiar,
iv) the court also feels that the discovery of the Will spoken to by D.W.1 is very suspicious and it is quite improbable that had Krishnan Nambiar executed a Will, his wife, namely, P.W.1 would have known about the same, v) the court also noticed that the statement of D.W.1 that the hint about the Will was given to him by the husband of the first defendant is also suspicious. RFA.333/2005. 56
44. Even assuming that all the above facts are true, still, the question would arise as to whether they are sufficient to come to the conclusion that the Will is not a genuine one. The reason given to doubt the evidence of D.W.2 is that he is not familiar with the other members of the family of Krishnan Nambiar. The only suggestion to this witness is that he was giving evidence at the behest of the second defendant. Surprisingly enough, there is no suggestion to him that the signature found on Ext.B1 was not that of Krishnan Nambiar. There is also no suggestion that he did not know the other attesting witness though in chief examination he stated that the other attesting witness, namely, Haridas signed in his presence as well as in the presence of the testator. There is also no suggestion to the effect that Krishnan Nambiar did not sign in his presence. A reading of the evidence of D.W.2 clearly shows that his RFA.333/2005. 57 evidence satisfies all the necessary requirements to show that the Will was infact executed by Krishnan Nambiar and was attested by the witnesses as required in law.
45. It is true that D.W.1 does say that a hint about the existence of the Will was given by the husband of the first defendant. His evidence regarding the discovery of the Will may not be very convincing. But to say that that by itself is sufficient to suspect the Will is going too far. One has to note that there is no suggestion to this witness that the Will was fabricated by him with the connivance of the husband of the first defendant and that he had forged the signature of his father.
46. It is significant to notice that none except the first plaintiff has gone to the box to give evidence. There is no reason as to why D.W.2 should favour D.W.1. RFA.333/2005. 58 There is no suggestion to either D.W.1 or D.W.2 that the husband of the first defendant had any acquaintance with D.W.2. There was no notice before the suit was instituted. Of course, notice is not mandatory. But one cannot omit to note that the execution of the Will was in 1996 and the testator died in 1997. The suit was instituted only in 2002. At the first opportunity itself, defendants 1 and 2 had put forward the Will. There was no earlier occasion for them to disclose the existence of the Will even assuming that the Will was discovered as spoken to by D.W.1, 5 to 6 months after the death of his father. As already noticed, there was no replication filed by the plaintiffs challenging the validity of the Will.
47. It could not be said that there was no reason as to why Krishnan Nambiar had preferred defendants 1 and 2. It has come out in evidence that defendant No.1 is his eldest daughter. From the RFA.333/2005. 59 evidence discussed, it can be seen that defendant No.2 along with his family was residing with his parents. The evidence also shows that he had only meagre means of income. It is reasonable to presume that D.W.1 was looking after his parents. If under those circumstances the testator thought it fit to bequeath some land and the house to defendants 1 and 2, it does not appear to be unnatural or unusual. Of course, the Will does not state the reasons for the preference shown. But there is no rule that it should mention the reasons for bequeath.
48. One has now to refer to the act of the lower court in comparing the signatures of the testator in Exts.B1 and A1. Obviously this has been done under Section 73 of the Indian Evidence Act. Except simply sating that signature is dissimilar, no reasons whatsoever are given by the court below to hold that the signatures differ. One may at this juncture refer to the RFA.333/2005. 60 decision reported in Thiruvengada Pillai v. Navaneethammal (2008(2) K.L.T. 267), wherein it has been held as follows:
"While there is no doubt that court can compare the disputed handwriting/signature/finger impression, such comparison by court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a court to compare the disputed finger impression with the admitted finger impression,only after an analysis of the characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person RFA.333/2005. 61 who has put the admitted thumb impression. Where the Court finds that the disputed finger impression and admitted thumb impression are clear and where the court is in a position to identify the characteristics of finger prints, the court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb impression is smudgy, vague or very light, the court should not hazard a guess by a casual perusal. When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague pr smudgy or not clear, making it difficult for comparison, the court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions. Further even in cases where the court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristics, RFA.333/2005. 62 similarities and dissimilarities. Necessarily, the judgment should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The court should avoid reaching conclusions based on a mere casual or routine glance or perusal."
49. In order to ascertain whether the finding of the court below in this regard is correct, we also perused the two documents. We find that there is not much difference in the signatures in Exts.B1 and A1. In fact the style, the way the pen has been drawn and the way in which the signatures appear look very similar. One cannot omit to note that Ext.A1 is of the year 1984, whereas Ext. B1 is of the year 1996. Some variations are bound to occur. Except for the variations that might have arisen due to passage of time, we are not able to RFA.333/2005. 63 find any significant dissimilarities between the two signatures. We feel that the court below was not justified in taking this as a ground to hold against defendants 1 and 2.
50. Further, the mere fact that a favour has been shown to defendants 1 and 2 is not a ground to suspect the Will. One may refer to a few decisions regarding the construction of a Will. In the decision reported in Sammut v. Manzi (2009(2) All. E.R. 234) it was held that the starting point in construction of a Will was to look at the natural meaning of the wording to be construed without reference to other decisions or to prima facie principles of construction. The Will has to be read as a whole and intention be drawn from the words used in the Will. In the decision reported in Shyamal Kanti Guha v. Meena Bose (AIR 2009 SC 1194) it was held as follows:
RFA.333/2005. 64
"If the court is to put itself into the testator's armchair to ascertain his intention from the words used in the Will: it must take into consideration the surrounding circumstances, the position of the testator, his family relationships, and attach importance to isolated expressions so as to give effect to all the clauses in the Will rather than making some of it inoperative."
51. In the decision reported in N. Kasturi v. D. Ponnammal (AIR 1961 SC 1302) it was held as follows:
"The rule of construction of wills that so far as is reasonably possible Courts should adopt that construction of the will which would avoid intestacy cannot be treated as an absolute rule which should have overriding importance in construing a will. If two constructions are reasonably possible, and one RFA.333/2005. 65 of them avoids intestacy while the other involves intestacy, the Court would certainly be justified in preferring that construction which avoids intestacy. It may be permissible to invoke this rule even in cases where the words used are ambiguous and an attempt may be made to remove the ambiguity by adopting a construction which avoids intestacy."
52. It is by now well settled that mere disinheritance or choice of legatees or uneven distribution by themselves are not sufficient to hold that the Will is not genuine. After all, a person executes a Will in order to interfere with the normal rule of succession. It is not always necessary that a Will should contain the reasons for preferring the legatees. Once it is found that the Will has been duly executed and is genuine, it is not the concern of the court to find out RFA.333/2005. 66 whether the disposition under the Will is even, just and proper. The dispositions may be unfair or even abhorrent. But it is not for the court to substitute its views in the place of the intention expressed by the testator in the Will.
53. At the risk of repetition, one may notice that among the male children of the couple, namely, Krishnan Nambiar and the first plaintiff, except the second defendant, others are well placed. As already observed, second defendant was staying with his parents and was looking after them. Even though P.W.1 has stated that the second defendant ill-treated his parents, there is absolutely no evidence regarding the same. It may be noticed here that Krishnan Nambiar died in 1997 and the first plaintiff shifted her residence only in 2002. It escapes one's understanding that if as a matter of fact the second defendant was ill-treating her, RFA.333/2005. 67 how she could remain in the house from 1997 to 2002 and as to why other children did not find it necessary to take care of her.
54. One has to notice that as far as the disposition in favour of defendants 1 and 2 is concerned, it is restricted to 9.17 cents out of 21 cents of property, of course with the building in the portion of the property bequeathed to defendants 1 and 2. The court below gives considerable importance to the fact that if as a matter of fact the Will was a genuine one, it would not have disinherited the first plaintiff. This finding of the court below overlooks the fact that the first plaintiff had properties of her own and also that she was given a life estate in respect of the building bequeathed to defendants 1 and 2.
55. It could thus be seen that none of the grounds relied on by the court below to hold against the RFA.333/2005. 68 Will is sustainable in law. The so-called suspicious circumstances relied on by the court below are more in the realm of imaginations. As already noticed, every circumstance could not be treated as a suspicious circumstance. If it was otherwise, then no Will could be upheld by the court. The suspicious circumstances relied on must arise from the facts proved in the case. Again, one may notice that there is no suggestion either to D.W.1 or D.W.2 that they had connived with the husband of the first defendant to fabricate a Will and if as a matter of fact they wanted to fabricate a Will why would they confine it to 9.17 cents and the building therein. The reason for preferring the first defendant to other female children had already been stated.
56. A reading of Ext.B1 Will will show that out of the 21 cents of property comprised in item No.1 of the plaint A schedule 9.17 cents with the building therein RFA.333/2005. 69 was bequeathed, the rest of the property is to shared equally by the other children of Krishnan Nambiar. For reasons already stated, one cannot find any inequity or unfairness in the disposition.
57. For the above reasons, we are unable to accept the findings of the court below that the genuineness of Ext.B1 Will is not established. We hold that the propounders of the Will, defendants 1 and 2 have succeeded in proving the due execution and attestation of the Will. Necessarily therefore, we have to reverse the finding of the court below in this regard.
In the result, this appeal is partly allowed. The finding of the lower court regarding Ext.B1 is set aside and it is held that Ext.B1 Will is a genuine document. If that be so, 9.17 cents scheduled to the Will with a building therein has to be excluded from partition. Therefore, the preliminary decree stands modified to the RFA.333/2005. 70 extent that out of 21 cents of property comprised in item No.1 in A schedule, what is available for partition is only the balance extent left after 9.17 cents with building therein and the rest of the property to be divided into 7 equal shares, one share each to plaintiffs 2 to 5 and defendants 3 to 5 on them paying respective court fee. Of course, the first plaintiff will have the right of residence during her lifetime in the building bequeathed to defendants 1 and 2 as per the Will. The parties will suffer their costs.
Thottathil B. Radhakrishnan, Judge P. Bhavadasan, Judge sb.