Kerala High Court
Lisamma vs Saramma
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
WEDNESDAY, THE 5TH DAY OF APRIL 2017/15TH CHAITHRA, 1939
RSA.No. 329 of 2017 (E)
-----------------------
AGAINST THE ORDER JUDGMENT AND DECREE DATED 28-01-2017 IN AS NO.34/2010 of
SUB COURT, MUVATTUPUZHA
AGAINST THE JUDGMENT AND DECREE DATED 24-06-2010 IN OS NO. 543/2008 of
MUNSIFF'S COURT,MUVATTUPUZHA
APPELLANT IN R.S.A.-APPELLANT IN A.S.-DEFENDANT NO.1 IN SUIT:
-----------------------------------------------------
LISAMMA
W/O.VARGHESE, AGED 52, NEDIYALIMUKALEL HOUSE,
NOW RESIDING ATTHEKKETHOTTIYIL HOUSE,
VADAKKEPUNNAMATTAM KARA, KADAVOOR VILLAGE,
KOTHAMANGALAM TALUK, PIN-686 671.
BYADVS.SRI.S.V.BALAKRISHNA IYER (SENIOR ADVOCATE)
SRI.P.B.KRISHNAN
SRI.P.M.NEELAKANDAN
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
SRI.S.NITHIN (ANCHAL)
RESPONDENTS IN R.S.A./RESPONDENTS IN A.S.-PLAINTIFFS & DEFENDANT NO.2 IN SUIT:
----------------------------------------------------------------------
1. SARAMMA, W/O.PAULOSE, AGED 76, KAKKADASSERIYIL HOUSE,
PATHINNALAM MILE KARA, MANNAMKANDAM VILLAGE,
DEVIKULAM TALUK, IDUKKI DISTRICT, PIN-685 561.
2. ANNAKUTTY,W/O.VARGHESE, AGED 73, PULICKAKUDIYIL HOUSE,
NERIAMANGALAM KARAAND VILLAGE, KOTHAMANGALAM TALUK,
PIN-686 693.
3. MARY,W/O.VARGHESE, AGED 62, MARKARAYIL HOUSE, PUTHUPPADY KARA,
KOTHAMANGALAM VILLAGE AND TALUK, PIN-686 673.
4. SOSAMMA, W/O.CHERIAN, AGED 71, THOMMIKUDIYIL HOUSE,
PAINGOTTOOR KARA, KADAVOOR VILLAGE,
KOTHAMANGALAM TALUK, PIN-686 671.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
05-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
"C.R."
A.HARIPRASAD, J.
--------------------------------------
R.S.A. No.329 of 2017
--------------------------------------
Dated this the 5th day of April, 2017
JUDGMENT
This second appeal raises an important question regarding the application of Section 67 of the Indian Succession Act, 1925 (in short, "the Act") in respect of a Will said to have been executed in favour of the appellant, who is the 1st defendant in a suit for partition.
2. The substantial questions of law arising for consideration are thus:
i. Is the interpretation placed on Section 67 of the Indian Succession Act, 1925 by the lower appellate court legal and proper?
ii. Has not the scribe of Ext.A2 attested the Will with necessary animus?
3. Heard the learned Senior Counsel appearing for the appellant. I have carefully perused the impugned judgments and the disputed Will, viz., Ext.A2.
4. Plaintiffs and defendants are sisters. Their father Paily died on 17.10.2005 and mother Saramma died on 17.12.2007. Parties are Christians governed by the Act. Plaint schedule properties belonged to RSA No.329 of 2017 2 deceased Paily. He executed a Will in respect of the properties in the year 1986, which is marked as Ext.A1. On the death of Paily, the properties devolved on his wife as per Ext.A1 Will. Saramma died intestate and after her death, the properties devolved on the plaintiffs and defendants. Since the defendants were not amenable for a partition, the suit is filed for division of the properties.
5. Appellant/1st defendant filed a written statement contending that the suit property is not available for partition. According to her, their mother Saramma did not die intestate. She had executed Ext.A2 Will on 27.05.2007. Admittedly, Ext.A2 is an unregistered document. As per Ext.A2, the scheduled property was bequeathed in favour of the 1st defendant and therefore, it is not partiable.
6. Trial court, after considering the documentary and oral evidence, found that suspicious circumstances surrounding Ext.A2 Will could not be effectively dispelled by the propounder. Further, it found that the disposition by Ext.A2 Will did not take effect by virtue of the provisions under Section 67 of the Act. For these two reasons the suit was dismissed. Lower appellate court also concurred with findings of the trial court and dismissed the appeal.
7. Learned Senior Counsel argued that the courts below erroneously applied the principles under Section 67 of the Act to the facts RSA No.329 of 2017 3 of this case.
8. Before dealing with the said contention, I shall discuss the legal principles in Section 67 of the Act. Section reads as follows:
"Effect of gift to attesting witness.- A Will shall not be deemed to be insufficiently attested by reason of any benefit thereby given either by way of bequest or by way of appointment to any person attesting it, or to his or her wife or husband, but the bequest or appointment shall be void so far as concerns the person so attesting, or the wife or husband of such person, or any person claiming under either of them.
Explanation.-A legatee under a Will does not lose his legacy by attesting a codicil which confirms the Will."
On a careful reading of the Section, following matters will be clear:
(i) A Will shall not be deemed to be insufficiently attested by reason of any benefit given to any person attesting it.
(ii) The benefit can either be by way of a bequest or by way of an appointment (like executor, administrator, etc.)
(iii) No deemed insufficiency in attestation, even if such a benefit is given to any person attesting it or to his or her wife or husband, as the case may be.
(iv) However, the bequest or appointment shall be void so far as it RSA No.329 of 2017 4 concerns the person so attesting, or the wife or husband of the attestor, as the case may be, or any person claiming under either of them.
9. The sum and substance of the Section is that merely for the reason that a beneficiary has attested a Will, the document will not become void ipso facto. If any benefit is given to the attestor by way of a bequest or by way of an appointment, he will not get any right as that bequest or appointment shall be void insofar as he is concerned. Not only that the attestor's wife or husband, as the case may be, and persons claiming under either of them are also precluded from claiming any benefit or appointment, as any such benefit or appointment conferred on them by the Will shall be void.
10. It is interesting to note that the restrictions in Section 67 of the Act may not be applicable to Hindus. It will be amply clear on a conjoint reading of Section 57 and Schedule III of the Act. I am not elaborating on it because that question does not arise here. In this case, Section 67 of the Act will operate as the parties are admittedly Christians, governed by the provisions of the Act.
11. Section 54 of the Indian Succession Act, 1865 (in short, "1865 Act") is akin to Section 67 of the Act. High Court of Madras in The Administrator General of Madras v. Lazar Stephen Lazar - (1882) 4 Madras 244) considered a question whether by operation of Section 54 of RSA No.329 of 2017 5 1865 Act, one of the attestors were precluded from claiming any benefit from a legatee. Answering that question in the affirmative, it was observed thus:
"The reason of this prohibition is not the incompetency to give evidence on the ground of interest which has ceased both in England and India to be a disqualification, but it is, I think, the suspicion or rather the chance of possible collusion which is favoured by the prospect of benefit. The extension of the prohibition to the wife seems to rest on the unity of interest or temptation between the husband and the wife. ..........."
12. In this case, learned Senior Counsel pointed out that Ext.A2 Will was attested by three persons. Admittedly, the first attesting witness is a stranger. Second attesting witness is husband of the 1st defendant. Apart from these two persons, the scribe also has signed the document. It is contended on behalf of the appellant that even if the second attesting witness; viz., husband of the 1st defendant, is excluded, there are two other attesting witnesses to Ext.A2 to satisfy the legal requirement. Therefore, the Will was validly attested going by Section 63 of the Act.
13. Section 63(c) of the Act mandates that a Will shall be attested by two or more witnesses. What is prescribed in the Section is that there shall be a minimum of two witnesses for valid attestation. Any number of RSA No.329 of 2017 6 witnesses more than two could be there. From Ext.A2, it can be seen that the scribe has put his signature to the document without any manifestation of animo attestandi or animus or intent to attest. This is all the more clear from the recitals in Ext.A2 itself. He prepared the document and signed it as a scribe only. Therefore, in the absence of exhibiting any animo attestandi, it cannot be held that the scribe could claim an elevated status of an attesting witness. Ext.A2 Will is attested by two persons, out of which one is disqualified under Section 67 of the Act. Therefore, the Will is not properly attested as required under Section 63 of the Act. The courts below are right in holding that the appellant/1st defendant cannot claim any right by virtue of Ext.A2 Will.
I find the substantial questions of law against the appellant. Appeal is devoid of any merit. Hence, it is dismissed.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
cks