Kerala High Court
T.T.Joseph vs K.V.Ippunny on 7 August, 2007
Equivalent citations: AIR 2007 (NOC) 2517 (KER.)
Author: Koshy
Bench: J.B.Koshy, K.P.Balachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA No. 1381 of 2000(D)
1. T.T.JOSEPH
... Petitioner
Vs
1. K.V.IPPUNNY
... Respondent
For Petitioner :SRI.N.SUBRAMANIAM
For Respondent :SRI.V.GIRI
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :07/08/2007
O R D E R
J.B. KOSHY and K.P.BALACHANDRAN, JJ.
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M.F.A. No. 1381 of 2000 C.R.
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Dated this the 7th day of August, 2007
Judgment
Koshy, J.
First appellant in this appeal filed an application for Letters of Administration of Ext.A4 Will dated 10.2.1989 executed by his mother Kochumariyam making his sister and two other brothers as defendants. Appellant herein who was made as additional fourth defendant filed an objection stating that Kochumariyam has executed a Will dated 1.3.1987 in his favour and he produced a certified copy of the same as Ext.B4. It is contended that he is the son-in-law of the said Kochumariyam and she was looked after by him for many years prior to her death. Appellant's wife, first defendant, who is the sister of the propounder also filed similar objection. Since objections were filed, the application was converted as a suit. Propounder of the Will examined four witnesses including himself. All witnesses other than the plaintiff deposed against his pleadings.
M.F.A.No.1381/2000 2
2. First respondent/Plaintiff entered the box as PW1. He deposed that Ext.A4 is the Will executed by late Kochumariyam, his mother on 10.2.1989. It is a registered document No.5/89 of SRO, Andathode on 13.2.1999. By the Will, she has bequeathed whatever property she had and she may acquire subsequently to the plaintiff. At that time, O.S.No.96 of 1986 filed by her was pending regarding partition of the property owned by her husband. That was also mentioned in the Will. PW1 did not say that he has seen the testator or witnesses signing the Will. Even though he identified the signature of his mother, according to him, he came to know about the Will after much delay. He further deposed that O.S.No.96 of 1986 was compromised, and testator relinquished her right and property of their father was partitioned between the children (Ext.A1). His mother was owning separate properties on her own right as evidenced by Exts.A2 and A3. (Nothing was mentioned in Annexure A2 Will with regard to Exts.A2 and A3.) In cross-examination, he deposed that the properties of the mother were not in his or third defendants' possession. It was originally in possession of second defendant. His mother filed a case before the Munsiff's Court, M.F.A.No.1381/2000 3 Wadakkancherry. When the case was filed, second defendant relinquished the power even before trial. Thereafter, the property was in the possession of fourth defendant (appellant). He also deposed that his mother was staying with the first defendant (her sister) and appellant (his brother-in-law) from 1985 onwards till her death (20.12.1999). He was not able to explain why his mother was staying with the daughter though she had three sons. He also admitted that she was buried in the parish church of the appellant and not in his parish and appellant took all the expenses for burial. He did not even attend the burial ceremonies in the Church. Even all services including ninth day services were done by the appellant. He also admitted that he is aware that his mother has earlier executed another Will. In Ext.A4 nothing is stated about Exts.A2 and A3 deeds or prior Will. In Ext.A4 Will, address of the mother is stated as plaintiff's own address even though she was residing with appellant and first defendant at the time of execution of the Will. He deposed that he was told that earlier Will and present Will were written by the same document writer. His mother was aged 85 at the time of execution of Ext.A4 Will.
M.F.A.No.1381/2000 4
3. PW2 is the alleged attesting witness to Ext.A4 Will. He is also the attesting witness in Ext.B4 Will executed in favour of the appellant. He stated that in both the Wills he signed as requested by the document writer V.K. Sankunni Menon. He signed as witness in Ext.A4 in the office of Registrar. He is not aware whether PW 2, PW4 or Sankuknni Menon signed the Will. He has not seen the testator signing the Will. He also stated that he is not aware who is the testator even whether she is a woman or a man. Court rightly rejected his deposition as he was related to the appellant and is from the same family. Even though his evidence cannot be believed, he categorically stated that he has not seen the testator or other attesting witnesses signing the deed in his presence though his signature was admitted.
4. Now, we will come to the evidence of PW4, the second attesting witness. He stated that he is a driver by profession. He had acquaintance with PW2 for 12 years. He stated that five to eight years ago, he was called by PW2 to go to Registrar's office. But, nobody was there. He was taken to the house of Sankunni Menon by hiring his taxi. Since Sankunni Menon was not there, he was taken to his office. He did not go to Registrar's M.F.A.No.1381/2000 5 office on that day. He has not seen PW3 on that day. He admitted his signature in Ext.A4. He stated that on that day he was taken to the Registrar's office by PW2. He put the signature as requested by Sankuknni Menon. He has seen PW2 signing in the Will. He is not aware about the identity of the person whose signature was in the Will. He has not seen any other person signing. He has no knowledge or acquaintance about Thalakottoor Kochumariyam (testator). In cross-examination also, he clearly stated that he has not seen the testator signing. Neither PW 2 nor PW 4 has stated that they have seen the testator signing even though they admitted their signature. PW3 was examined to show that he has written the Will in his handwriting and he was an assistant to Sankunni Menon who was the document writer. He stated that Ext.A4 was written in his handwriting. But, he has not seen the testator or witnesses signing. He denied having known Kochumariyam (testator) or PWs 2 and 4. He only wrote the Will as directed by Sankunni Menon. Therefore, he has not seen execution of Ext.A4. He did not go to registrar's office thereafter on that day, but, he obtained registered copy as directed by Sankunni Menon. So, evidence of PW 3 is also of no help to the M.F.A.No.1381/2000 6 plaintiff and his evidence will not prove that attesting witnesses put their signatures in the presence of the testator or they have seen the testator signing.
5. Appellant was examined as DW1. According to him, testator was living with him from 1982. Ext.A4 is not the Will executed by Kochumariyam. In 1987, a registered Will was executed by her bequeathing her property to him and he is in possession of the same. Ext.A4, even if signed, relates only to the husband's property which devolved on her after his death and for which a suit was pending. But, after institution of the suit, it was compromised and she gave all properties to the children (Ext.A4). So, the properties mentioned in Ext.A4 is not owned by her at the time of her death. He also stated that signature in Ext.A4 is not of Kochumariyam. According to him, from 1988 onwards, Kochumariyam was ill and she was in his house. She was buried in his parish. Her sons told that they are not interested to take her to their house and refused to take her for burial. Exts.B1 and B2 cards show that all after death services were conducted by him. Certified copy of the Will executed in 1987 as Will No.12/87 was produced as Ext.B4. Photo copy of the filing sheet in the M.F.A.No.1381/2000 7 Registrar's office which contains the signature of Kochumariyam was also produced as Ext.A3. In cross- examination, he deposed that original of the Will (Ext.A4) was entrusted with his advocate for producing in court in the partition case filed by Kochumariyam. Since it was not traced out, he applied for certified copy. He also stated that plaintiff never visited the mother and PW2 is distantly related to him and he knew Kochumariyam.
6. Even though Ext.A4 is a registered Will, none from the Registrar's office was examined at least to prove that she and witness signed the Will in each other's presence in the Registrar's office as the contention of the plaintiff is that it was signed in the Registrar's office only. It was also not proved that Kochumariyam was identified and introduced to the Registrar or staff by a known person to them. It is true that evidence of PWs 2 and 4 attesting witnesses cannot be believed. But, when both of them stated that they have not seen the testator signing the Will, it was the bounden duty of the propounder to prove that Will was duly executed as provided under law that it was signed by the executant in the presence of the attesting witnesses. It is well settled position of law that the propounder is M.F.A.No.1381/2000 8 bound to prove that Will was properly executed and properly attested. It was contended by the appellant as well as the first defendant that the properties mentioned in the Will are not owned by the plaintiff. The plaintiff was in inimical terms with the mother and for long time they were looking after Kochumariyam. According to the appellant, earlier, she executed a Will dated 1.3.1987 in favour of fourth defendant and Ext.B4 is the certified copy of the Will so executed. The above was not cancelled. It is further submitted that signature in the Will might have been obtained by playing fraud. It is also contended that if Kochumariyam has written the Will without playing fraud, she would have mentioned about cancelling the earlier Will and mentioned about her own property as she had mentioned about the partition suit. But, it was argued that if Ext.A4 and Ext.B4 are correctly executed, Ext.A4 alone is valid because it is the last Will and by Ext.A4 Will whatever rights on the property she was having and subsequently acquire were bequeathed to the plaintiff.
7. The questions to be considered is whether the Will was executed by her? If so, was it properly attested? Whether the attestor has got testamentary M.F.A.No.1381/2000 9 capacity at the time of execution and whether the Will was executed by playing fraud? Ext.B4 Will is only a certified copy of a registered Will and that was dated 1.3.1987. Ext.A4 registered Will is dated 10.2.1989 executed about two years after the above Will. Even if it is not stated that the earlier Will was not cancelled, it is settled law that only the last Will will prevail. Even though Ext.B4 is said to be registered, Ext.A4 is also a registered document. Since only the last Will will prevail, if Ext.A4 Will is valid, automatically, Ext.B4 Will will stand cancelled even without a specific recitation to that effect being the last Will. It was not proved that Ext.B4 Will, the alleged earlier Will, was duly executed. Hence, if Ext.A4 is correct, it is the only Will. Section 70 of the Indian Succession Act specifically states that the Will can be cancelled by another Will. It is true that if two Wills are executed and they are not inconsistent with each other, both may be valid. Here, in Ext.A4 it is stated that all properties she is having and may be acquired subsequently will go to the plaintiff. That is inconsistent with Ext.B4 Will. Exts. A4 and B4 cannot co-exist due to inconsistency. Swinburne's statement that "no man can die M.F.A.No.1381/2000 10 with two testaments" is not always true. If the two testaments are not inconsistent, they cannot be considered as two separate Wills, but, together can be considered to indicate the testamentary intention of the deceased (See: Ahronee Shemail v. Sheikh Ahmed Omar - 33 Bom.L.R. 1056). If there are two testaments which are not inconsistent with each other, both together can be considered as last Will of the deceased. But, the last testamentary disposition by a testator operates to the exclusion of any previous inconsistent Wills. In such cases, earlier Will is impliedly revoked. The legal position with regard to registration of a Will has been laid down by the Hon'ble Apex Court in Durga Parshad v. Debi Charan and others (AIR 1979 SC 145 - paragraph 30). Here, if Ext.A4 Will is really executed properly, Ext.B4 Will even if proved is impliedly revoked as text of Ext.A4 is totally inconsistent with Ext.B4 Will. Before considering the question whether Ext.A4 Will was validly executed, we may consider the judicial pronouncements in this matter.
8. Section 63 (c) of the Indian Succession Act, 1925 reads as follows:
M.F.A.No.1381/2000 11
"63. Execution of unprivileged Wills:
xx xx xx xx
(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 testator, or has received from the testator a personal acknowledgment of his signature or mark, or of 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."
Section 68 of the Evidence Act shows how a document like Will should be proved. Section 68 of 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.M.F.A.No.1381/2000 12
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 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
The above section shows that what is necessary is to call for the purpose of proving the execution one of the attesting witnesses, if he is alive. So the obligation is only to call at least one of the attesting witness, if he is alive, to the Court for proving the Will. But even if he denies the Will, if by other evidence it is proved that there is proper attestation, the Will can be accepted. Court is free to believe or disbelieve him after analyzing the entire evidence and deposition of attesting witness is also to be scrutinised by the Court like deposition of any other witness. In this connection, section 71 of the Indian Evidence Act, 1872 is also relevant which is as follows:
"71. Proof when attesting witness denies the execution:
If the attesting witness denies or does not recollect the execution of the document, M.F.A.No.1381/2000 13 its execution may be proved by other evidence."
9. It is now settled law that it is for profounder to prove the Will. The maxim "probandi necessitas incumbit illi qui agit" means the necessity of proving his claim or contention lies upon him who brings the charge. Same is the principle behind the maxim "affirmandi incumbit probatio" which means the burden of proof lies with the party affirming and negatives cannot be proved. One alleging a fact is bound, when it is disputed, to prove it. Requirement of proof that the Will has duly been executed is on the profounder of the Will is settled in India by the Apex Court decisions, apart from the clear statutory provisions quoted earlier. In order to prove due attestation of the Will, the profounder will have to prove that testator has signed the Will, that too, in the presence of two witnesses and they themselves signed the same in the presence of the testator. Mere proof of the signature is also not enough. In Girja Datt Singh v. Gangotri Datt Singh (AIR 1955 SC 346), the Supreme Court held as follows:
"One could not presume from the mere signatures of Mahadeo Pershad and Nageshur appearing at the foot of the endorsement of M.F.A.No.1381/2000 14 registration that they had appended their signatures to the document as attesting witnesses or can be construed to have done so in their capacity as attesting witnesses. Section 68, Indian Evidence Act requires an attesting witness to be called as a witness to prove the due execution and attestation of the will. This provision should have been complied with in order that Mahadeo Pershad and Nageshur be treated as attesting witnesses. This line of argument therefore cannot help Gangotri."
10. A Constitution Bench of the Supreme Court in H.Venkatachala Iyengar v. B.N. Thimmajamma and others (AIR 1959 SC 443) held as follows:
"19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before the Court, the testator who has already departed the world 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 M.F.A.No.1381/2000 15 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 by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated .... It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas ...."
Once it is proved that a Will has been executed by the executant in presence of two witnesses and they have signed in presence of each other and the executor has got testamentary capacity and burden of proof is on the persons who alleges that Will is forged or cannot be acted upon due to coercion, undue influence, fraud etc. M.F.A.No.1381/2000 16 as held by the Constitution Bench of the Apex Court in Naresh Charan Das Gupta v.Paresh Charan Das Gupta and another (AIR 1955 SC 363). If it is proved that Will was executed by the executant with full testamentary capacity, in presence of two witnesses and there are no suspicious circumstances, burden is shifted to the defendant who opposes the Will as validity of the Will can be presumed on the principle of the maxim "omnia rite esse acta" (all things are presumed to have been done duly in the usual manner). If a document is properly authenticated and recorded and appears to be signed in the presence of witnesses, it can be presumed that it was properly observed. In this connection, we refer to a decision of the Court of Appeal in Wright v. Saderson (1984 IX PD 149) and as held by the Privy Council in Lloyd v. Roberts (12 Moo. P.C. 158). However, when execution of the Will as well as the signature of the witnesses in the presence of the executor is denied, it is necessary for the propounder to prove that the Will was executed under section 68 of the Evidence Act and that it was executed as provided under section 63 (c) of the Indian Succession Act.
M.F.A.No.1381/2000 17
11. In Janki Narayan Bhoir v. Narayan Namdeo Kadam (AIR 2003 SC 761) also, it was held that mere proving the signature of the Will as that of the testator or witness is not enough. At paragraph 10 of the judgment, the Apex Court observed as follows:
"On a combined reading of section 63 of the Succession Act with section 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the Will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of section 63 of the Succession Act. It is true that section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in section 63. Although section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses, section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its M.F.A.No.1381/2000 18 due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, section 68 gives a concession to those who want to prove and establish a Will in a Court of law by examining at least one attesting witness even though Will has to be attested at least by two witnesses mandatorily under section 63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a Will. To put in other words, if one attesting witness can prove execution of the Will in terms of clause (c) of section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by other witness also it falls short of attestation of Will at least by two witnesses for the simple reason that the execution of the Will does not merely mean the signing of it by the testator but it M.F.A.No.1381/2000 19 means fulfilling and proof of all the formalities required under section 63 of the Succession Act. Where one attesting witness examined to prove the Will under section 68 of the Evidence Act fails to prove the due execution of the Will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by the other witness there will be deficiency in meeting the mandatory requirements of section 68 of the Evidence Act."
12. Under section 71 of the Evidence Act, even if the attesting witness denies or he is not recollecting the execution of the document, the execution can be proved by other evidence. In George v. Varkey (2004 (1) KLT 21 - one of us J.B.Koshy, J. was a party), a Division Bench of this Court, after considering various decisions of the Hon'ble Supreme Court and High Courts, held that what is necessary is that obligation of the propounder is to examine at least one of the attesting witnesses, if he is alive, to prove that the Will was executed as per law. Even if the attesting witnesses speak against the execution of the Will, the courts are not powerless. The M.F.A.No.1381/2000 20 Court can take into account other evidence to consider whether the Will was properly attested. Whether evidence of attesting witness is indefinite, doubtful or conflicting on material points, the court can consider all circumstances and accept the Will, if proper attestation is proved by other evidence. In that case, apart from the propounder of the Will, PW3, an independent witness, who was assisting the document writer (who expired at the time of trial), as well as the Registrar deposed that the testator and attesting witness have signed in their mutual presence and they have seen it. Therefore, it was held that even though the defendants were able to manipulate the only living attesting witness, the Will was proved as duly executed. Similar view was taken in K.M. Varghese v. K.M.Oommen & others (AIR 1994 Kerala 85; Ittoop Varghese v. Paulose and others (1974 KLT 873) and Brahmadat Tewari v. Chaudan Bibi (AIR 1916 Calcutta 374).
13. It is contended that the Will was a registered Will and, therefore, presumption can be made in favour of the due execution of the Will. The Hon'ble Supreme Court considered the matter in detail in Bhagat Ram and another v. Suresh and others (AIR 2004 SC 436) M.F.A.No.1381/2000 21 and held that the Registrar of Deeds cannot be a statutory attesting witness. Registration of Will only show that procedure for registration was complied with. It was contended in that case that since both Registrar and witness put their signature with a view to attest the signature of testator, no further proof is necessary. For that the Registrar was not called to prove that he saw the testator signing in presence of the witnesses to the Will. The court held as follows:
"21. The Registrar of Deeds who has registered a document in discharge of his statutory duty, does not become an attesting witness to the deed solely on account of his having discharged the statutory duties relating to the registration of a document.
Registration of any Will, and the endorsements made by the Registrar of Deeds in discharge of his statutory duties, do not elevate him to the status of a 'statutory attesting witness'. However, a registrar can be treated as having attested to a Will if his signature or mark appears on the document akin to the one placed by an attesting witness and he has seen the testator sign or affix his mark to the Will or codicil or has received from the testator a personal acknowledgment of his signature or mark and he had also signed in M.F.A.No.1381/2000 22 the presence of the testator. In other words, to be an attesting witness, the registrar should have attested the signature of the testator in the manner contemplated by Cl. (c) of S.63 of the Succession Act.
No particular form of attestation is provided. It will all depend on the facts and circumstances of a case by reference to which it will have to be answered if the registrar of deeds fulfills the character of an attesting witness also by looking at the manner in which the events have actually taken place at the time of registration and the part played therein by the Registrar.
22. A Registrar of Deeds before he be termed an attesting witness, shall have to be called in the witness-box. The Court must feel satisfied by his; testimony that what he did satisfies the requirement of being an attesting witness. This is the view taken by the High Court of Punjab in the several decisions cited by the learned counsel for the appellants and also in the Division Bench decisions of the High Court of Calcutta in Earnest Bento Souza v. Johan Francis Souza and others (AIR 1958 Cal. 440) and of the Orissa High Court in Kotni R.N.Subudhi v. V.R.L. Murthy Raju (AIR 1961 Ori. 180)."M.F.A.No.1381/2000 23
The Court also held that registration of a document does not dispense with the need of execution and attestation of a document which is required by law to be proved in the manner as provided in section 68 of the Evidence Act. In Kunwar Surendra Bahadur Singh and others v. Thakur Behari Singh and others (AIR 1939 PC 117), the Privy Council held that the endorsements made at the time of registration are relevant to the matters of registration only and none of the above endorsements contemplates the factum of attestation by the registrar within the meaning of section 63 of the Succession Act and on account of registration of document including a Will, presumption as to the correctness or irregularity cannot be drawn.
14. The Hon'ble Supreme Court in Daulat Ram and others v. Sodha and others ((2005) 1 SCC 40) stated the law thus:
"Will being a document has to be proved by primary evidence except where the court permits a document to be proved by leading secondary evidence. Since it is required to be attested, as provided in section 68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the attesting witnesses at least has been called for the purpose of proving its execution, if there M.F.A.No.1381/2000 24 be an attesting witness alive, and subject to the process of the court and capable of giving evidence. In addition, it has to satisfy the requirements of section 63 of the Indian Succession Act, 1925. In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But, where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the Will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so." (emphasis supplied.) The Supreme Court in B. Venkatamuni v. C.J. Ayodhya Ram Singh and others (AIR 2007 SC 311) held as follows:M.F.A.No.1381/2000 25
"14. Proof of a Will shall strictly be in terms of the above mentioned provisions.
15. It is, however, well settled that compliance of statutory requirements itself is not sufficient as would appear from the discussions hereinafter made."
It was held in that case that even if all the statutory requirements are made, it is for the propounder to prove that there is no suspicious circumstances in the execution of the Will. In this case, two attesting witnesses (PWs 2 and 4) as well as the person who wrote the Will (PW3) denied that they have seen the testator signing the Will. Even though they admitted their signature, they have also stated that they have not signed in each other's presence. As held by the trial court, their evidence is not believable, but, that will not show that the propounder has discharged the burden in proving the Will. Other than PWs 2 to 4, the only other witness examined was PW1 propounder. He stated that he has not seen the testator or witness signing. He also stated that he came to know about the Will much after the execution. Therefore, it was not proved that even the testator has signed the Will or attesting witness signed in the presence of testator or they signed in the M.F.A.No.1381/2000 26 presence of each other. The Registrar was also not examined to show that the testator signed the Will in the presence of attesting witness and there was proper execution of the Will as provided under section 63 (c). Here, no evidence was adduced to show that she was capable of making a Will. DW1, with whom she was living, deposed that prior to two years of her death, she was bed-ridden. There is no independent evidence about her health conditions and her testamentary capacity on the alleged date of the execution of Ext.A4 Will. Apart from the above, it is very difficult to believe that the testator bequeathed the entire property in the Will to the propounder of the Will. She was living with the first defendant daughter and appellant herein, her son- in-law. They were looking after her. It has come out in evidence that her sons did not even visit her. They did not even attend the funeral services or subsequent ceremonies in connection with the death. During the time of execution of the Will also, it is admitted that she was living in the house of the appellant. A case filed by her for partition of the property derived from her late husband was also pending at the time of alleged execution of the Will. It is very difficult to believe M.F.A.No.1381/2000 27 that she went to the Registrar's office at her old age without the knowledge of the appellant and the first defendant as also the plaintiff and executed the Will. In fact, after the date of the alleged execution of the Will, the suit pending was compromised allowing the property of her husband to be partitioned between the children equally by Ext.A1 and she relinquished her right over the same. Even though the signature in the Will by the testator is disputed, no effort was also made by examining a handwriting expert to prove the signature in the Will and it is an admitted case that the property in question is in possession of the appellant. After she filed a case for recovery of possesssion, another son, second defendant, has vacated who was in possession of the property obtained by the mother as per Exts.A2 and A4 deeds and thereafter, admittedly, the plaintiff was put in possession of that property. With the above deeds, it is doubtful that she will bequeath the property to the plaintiff excluding the appellant who was looking after her in the old age. There are enough suspicious circumstances surrounding the execution of Ext.A4 Will. The above suspicious circumstances put heavy onus on the propounder to prove the due execution of the Will. We M.F.A.No.1381/2000 28 are of the opinion that the burden cast on the propounder is not discharged in this case in proving that the Ext.A4 Will was executed as provided under section 63 (c) of the Indian Succession Act. Hence, we allow the appeal. By allowing the appeal, we are not expressing any opinion regarding the correctness of Ext.B4 Will. Judgment and decree of the court below is set aside and the suit is dismissed.
Appeal allowed. Parties to bear their costs.
J.B.KOSHY JUDGE K.P.BALACHANDRAN JUDGE vaa M.F.A.No.1381/2000 29 J.B. KOSHY AND K.P.BALACHANDRAN, JJ.
C.R.
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M.F.A.NO.1381/2000
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JUDGMENT
Dated: August, 2007