Kerala High Court
Geetha Viswambharan vs Asokan A.P on 14 June, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
MONDAY, THE 14TH DAY OF JUNE 2021/24TH JYAISHTA, 1943
RSA NO.129 OF 2016
AS 42/2014 OF SUB COURT, PERUMBAVOOR, ERNAKULAM
DTD.30.9.2015
O.S.No.114/2010 OF MUNSIFF'S COURT, PERUMBAVOOR DTD.31.3.2014
APPELLANTS/APPELLANT & 1st RESPONDENT/PLAINTIFF & 1st
DEFENDANT:
1 GEETHA VISWAMBHARAN,
AGED 48 YEARS,
STHANATHU KUNNEL, EZHAKKARANADU.P.O,
PUTHENCRUZ (VIA), ERNAKULAM.
2 NAKULAN.K.P.,
AGED 57 YEARS,
S/O.PARAMESWARAN, KUNNUMMEL HOUSE,
CHANGARA,PATTIMATTOM.P.O, ERNAKULAM.
BY ADVS.
SRI.RENJITH THAMPAN (SR.)
SRI.GEORGIE SIMON
RESPONDENT/2nd RESPONDENT/2nd DEFENDANT:
ASOKAN.K.P.,
AGED 50 YEARS,
S/O.PARAMESWARAN, KUNNUMMEL HOUSE,
CHANGARA, PATTIMATTOM.P.O, ERNAKULAM PIN 683562.
BY ADV SRI.DENY JOSEPH
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
09.04.2021, THE COURT ON 14.6.2021 DELIVERED THE FOLLOWING:
R.S.A.No.129 of 2016
..2..
JUDGMENT
This R.S.A. under Section 100 of the Code of Civil Procedure has been filed against the judgment and decree dated 30.9.2015 passed by the Sub Court, Perumbavoor in A.S.No.42/2014, confirming the judgment and decree dated 31.3.2014 passed by the Munsiff's Court, Perumbavoor in O.S.No.114 of 2010 by which the suit filed by the plaintiff for partition was decreed in part and the counter claim filed by the 2nd defendant alleging that he is the owner of the plaint B schedule property and is entitled to get half share in plaint A schedule property is dismissed. The appellants are the plaintiff and the 1 st defendant in O.S.No.114/2010 of the Munsiff's Court, Perumbavoor and the respondent is the 2nd defendant in the suit. The parties are hereinafter referred to as the plaintiff and the defendants, according to their status in the trial court unless otherwise stated. R.S.A.No.129 of 2016
..3..
2. The brief facts for disposal of the present appeal in short are hereinbelow:-
The plaint schedule property contains two items of properties, viz., plaint A schedule property, which originally belonged to their father Parameswaran and the plaint B schedule property belonged to their mother Bhavani. Parameswaran died 18 years back. The plaintiff had filed the suit for partition of plaint A and B schedule properties claiming one-third share of the plaint schedule properties to her.
3. The 1st defendant filed a written statement contending that item No.3 in the plaint A schedule property was given to the 1 st defendant by his father during his life time and it is not liable to be partitioned. However, the 1st defendant agreed for partition of the entire plaint B schedule property which belonged to Bhavani.
R.S.A.No.129 of 2016
..4..
4. The 2nd defendant filed written statement contending that plaint B schedule property belonging to Bhavani is not liable to be partitioned since his mother had executed a registered will No.466/2008 bequeathing the entire plaint B schedule property in his favour. He had also contended that as per the A schedule property, his mother Bhavani's share in the A schedule property as one of the legal heirs of late Parameswaran was also bequeathed in his favour. Hence, he claimed half share in the plant A schedule property as well. He filed a counter claim for the partition of the plaint A schedule property.
5. The plaintiff filed a replication contending that the alleged will was not duly executed and it was created just 14 days before the death of his mother Bhavani. The plaintiff further contended that his mother Bhavani had not executed the will knowingly and out of her own free will, but it was created at the instance of the 2nd defendant R.S.A.No.129 of 2016 ..5..
under compelling circumstances.
6. The trial court framed the following issues:
"1) Whether the plaint schedule properties are partible and if so what is the share if any to which each of the parties is entitled?
2) Whether the plaintiff is entitled to receive share of profit and if so what is the quantum?
3) Whether the plaintiff is entitled to a permanent prohibitory injunction as prayed for?
4) Whether the counter claim is allowable?
5) Relief and costs ?"
7. The trial court, after recording the evidence of both parties, passed a preliminary decree as follows:-
"1. Plaint A schedule properties are found partible.
2. Plaintiff is entitled to 4/15 share in plaint A schedule properties.
3. 1st defendant is entitled to 4/15 share in plaint A schedule properties.
4. 2nd defendant is entitled to 7/15 share in R.S.A.No.129 of 2016 ..6..
plaint A schedule properties.
5. Plaint B schedule property is found not partible and is found that the same is belonged to the 2nd defendant.
6. Plaintiff and defendants are entitled to share of profits from plaint A schedule properties as per their share in the landed property from the date of filing of the suit. Profit from plaint A schedule shall be decided at the time of passing final decree.
7. Share of defendants shall be allotted to them on payment of requisite court fee.
8. Any of the parties can file an application of passing a final decree.
9. Cost shall come out of the estate. The suit is adjourned sine dine."
8. Being aggrieved by the judgment and decree passed by the Munsiff's court, Perumbavoor in O.S.No.114/2010 dated 31.3.2014, the plaintiff preferred an appeal as A.S.No.42 of 2014 before the Sub Court, Perumbavoor, which ended in dismissal by judgment and decree dated 30.9.2015. The present appeal was admitted by this Court on the following substantial questions of law:- R.S.A.No.129 of 2016
..7..
i. Whether the court below committed illegality when it upheld the alleged will even when there is clear cloud and suspicion about the testatory capacity of the testator?
ii. Whether the court below went wrong in
ignoring the clear averments in the
registered document that the will is
executed at the office of the document
writer, whereas it has come out in
evidence that the document is registered in the residential house.
iii. When the document itself shows that the document is executed at a different place than the place which is mentioned in the document, is it not the duty of the legatee to prove the actual facts and remove the cloud relating to the document.
iv. Whether the court below committed
illegality in appreciating the evidence,
which resulted in prejudice to the
appellant?
R.S.A.No.129 of 2016
..8..
9. Sri.Ranjith Thampan, the learned Senior
Counsel for the appellants contended that the 2 nd
defendant failed to prove Ext.B5 Will in accordance with the provisions contemplated under Section 63(c) of the Indian Succession Act and Section 68 of the Evidence Act.
The learned Senior Counsel further contended that none of the attesting witnesses had stated that Ext.B5 Will was executed and signed by deceased Bhavani in their presence and they had put their signatures in the presence of the testator. It was further submitted that deceased Bhavani was bedridden and was suffering from cancer during the fag end of her life. The alleged Will was executed on 20.12.2008 and strange it may sound, Bhavani died within 14 days of the alleged creation of the Will. It was further stated that in Ext.B5, there is not even a provision for maintenance of her daughter Padmavathy R.S.A.No.129 of 2016 ..9..
who was severely ill. Moreover, the suspicious circumstances, which are attached to Ext.B5 Will, have not been removed by the 2 nd defendant. It was further submitted that DW3, one of the attesting witnesses of Ext.B5 Will, was not even having any prior acquaintance with the testator contrary to his assertion; whereas DW4 Bharath, one of the attesting witnesses of the alleged Will, had appeared for the respondent in the trial court and that he has been subjected to disciplinary proceedings by the State Bar Council. According to the learned Senior Counsel, if evidences of all the witnesses are read conjointly, it is clear that the 2 nd defendant has failed to prove execution of Ext.B5 Will in accordance with law.
10. Heard Sri.Ranjith Thampan, the learned Senior Counsel for the appellants and Sri.Deny Joseph, the learned counsel for the respondent.
11. The learned counsel for the 2nd defendant R.S.A.No.129 of 2016 ..10..
contended that late Bhavani had executed Ext.B5 Will with respect to the B schedule property and also with respect to the share of said Bhavani in the plaint A schedule property. Hence it is contended that the plaint B schedule property is not available for partition. According to the learned counsel for the 2nd defendant, the 2nd defendant had filed a counter claim seeking partition and separate possession of one half share in respect of the counter claim A schedule properties and the entire share of the B schedule property. There are 18 items in the counter claim A schedule property.
12. It is well established principle of law that the propounder of the Will has to remove all suspicious circumstances attached to Ext.B5 Will and the said burden is on him. The 2nd defendant, who is the propounder of Ext.B5 Will, was examined as DW2. According to the 2 nd defendant, Ext.B5 is a valid document properly executed R.S.A.No.129 of 2016 ..11..
by the testator and the testator had sound disposing state of mind at the time of executing Ext.B5 Will. DW2 further stated that the testator was looked after by him and all the expenses in connection with the treatment were incurred by him. The 2nd defendant produced Ext.B7 medical bill.
13. In Section 63 of the Indian Succession Act it requires a Will to be attested. It cannot be used as an evidence, as required by Section 68 of the Indian Evidence Act, 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. It is admitted that the testator was a cancer patient and she was aged around 74 years at the time of executing Ext.B5 Will. PW2 the surgeon attached to the Lisie Hospital, Ernakulam would say that Bhavani was suffering from breast cancer R.S.A.No.129 of 2016 ..12..
and one of her breasts was removed on 11.6.2007. According to him, Bhavani came to Lisie Hospital on 09.06.2007 and surgery was conducted on 11.6.2007. She was later discharged from the hospital on 25.6.2007. Bhavani was suffering from grade-two breast cancer. To corroborate the version of PW2, Ext.X1 treatment record was produced.
14. On a reading of Ext.B5 Will deed, it is clear that the document was executed and registered at the residence of the testator. When examined before the court below, DW2, the beneficiary under Ext.B5 Will testified that his mother was not in a position to go to the office of the Sub Registrar and therefore the Sub Registrar was brought to the residence of the testator for registration of the document. DW3, who had no prior acquaintance with the testator, went to the residence of the testator at about 4'o clock on 20.12.2008 in the evening. According to him, R.S.A.No.129 of 2016 ..13..
the Sub Registrar and the document writer reached there by 5'o clock. It is a fact that the Sub Registrar had obtained thumb impression of the testator adjacent to her photograph affixed on the first page. In page No.5 of the said Will deed, it has been stated that the said Will deed was executed at Puthencruz Village in building No.VPP/IX/305. However, the endorsement made by the Sub Registrar would show that the said document was executed and registered at the residence of the testator which bears door No.IX/15 of Kunnathunadu Grama Panchayat.
15. DW4 is a practicing Advocate against whom certain disciplinary proceedings were initiated by the State Bar Council earlier. He would say that he was absolved from all the allegations and that all those proceedings were subsequently dropped. The name of DW4 is shown as Mr.Bharat in Ext.B5 Will. However, he admitted during R.S.A.No.129 of 2016 ..14..
cross-examination that his former name was Shaji and that he subsequently changed his name. DW4 further admitted that he was the former Advocate of the 2 nd defendant, but after filing the written statement, he relinquished his vakalath and a new Advocate was engaged. According to DW4, the testator expressed her intention to settle her property in favour of the 2nd defendant for which she sought legal opinion of DW4. He would say that he collected necessary documents from the testator and engaged the document writer to prepare the document and subsequently went to the residence of the testator for execution and registration of the document. It is very difficult to believe that the testator, who was suffering from cancer, would approach DW4 at the fag end of her life and request him to execute Ext.B5 Will deed in favour of the 2nd defendant. It is a fact that the counter claim B schedule is an exact replica of page No.6 of the R.S.A.No.129 of 2016 ..15..
Will deed. When he was cross-examined it was stated that there was nothing to offer in this regard. On a perusal of Ext.B5 Will deed and the counter claim, it is clear that the counter claim B schedule is an exact replica of the schedule annexed to the Will deed. Therefore, the possibility of making another copy of the schedule for annexing the same to the counter claim property cannot be brushed aside.
16. It is clear from the evidence of DW1 that Bhavani had been suffering from breast cancer and one of the breasts was removed on 11.6.2007 by surgery. The Will deed was allegedly executed on 20.12.2008 before 14 days of the death of the testator. On a perusal of Ext.B5 Will and the evidence of DWs.3 and 4 there is nothing to indicate that they had mutually acknowledged each other while attesting as witnesses in the Will deed. DW3, Mr.Sudhakaran testified before court the name of testator R.S.A.No.129 of 2016 ..16..
as 'Bharathi Amma' several times. His evidence would show that he was not even aware of Bhavani prior to the execution of Ext.B5 Will. The document writer, who prepared Ext.B5 Will, was not examined as a witness although there was serious challenge regarding the execution of Ext.B5 Will and the place where it was executed.
17. Yet another circumstance canvassed by the learned Senior Counsel for the appellants is that at the time of death of the testator, the sister of the plaintiff, late Pdmavathy and defendants was alive. Admittedly, she was suffering from lung cancer and was critically ill. However, in Ext.B5 Will there is not even a provision for maintenance of her daughter Padmavathy who was severely ill.
18. The burden of proof that the Will has been validly executed and is a genuine document is on the R.S.A.No.129 of 2016 ..17..
propounder. The propounder is also required to prove that the testator had 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 regard is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the propounder to remove all suspicious circumstances by leading satisfactory evidence if there exists any. In the case on hand, it has come out in evidence that the testator was suffering from cancer during the fag end of her life and she died immediately after executing the Will. In fact the testator was being looked after by DW2. The disposition appears to be unnatural in the light of the relevant evident that the Sub Registrar was summoned to the residence of the testator before her death. It is clear that everything was managed by DW2 the propounder of R.S.A.No.129 of 2016 ..18..
the Will and DW4 is an Advocate who initially filed pleadings for the 1st defendant in this case. When doubt is created with regard to the condition of the mind of the testator during the fag end of her life pertaining to the signature on the Will it is relevant for determination of the existence of suspicious circumstances. The facts and circumstances would show that the propounder himself has a prominent part in the execution of the Will which confers a substantial benefit.
19. Coming to the next, the burden of proof, that the Will has been validly executed, is on the propounder. For this, the propounder is bound to prove that the testator had signed the Will and had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. In the case on hand, it has come out in evidence that DW3 had not known to the testator earlier. The document writer and R.S.A.No.129 of 2016 ..19..
DW4 came to the house. It is very difficult for this Court to believe that DW3 and DW4 went to the residence of the testator as required by her. It appears that DW2 was instrumental in securing the presence of DWs.3 and 4 at her residence to execute the Will. The very presence of the Sub Registrar at the residence of the testator before the date of her death is also a suspicious circumstance. The place of execution of Ext.B5 Will is also suspicious. There is nothing on record to show that the Will was dictated by the testator in the presence of DWs.3 and 4 as attesting witnesses and the person who had written the Will had acquired the signature of the witnesses. Mere production of Ext.B5 Will before the court is not a circumstance to hold that Ext.B5 Will was genuine. In fact the testator was being looked after by DW2 during the fag end of her life. There is nothing on record to show that the draft of the Will was brought to the notice of the testator. R.S.A.No.129 of 2016
..20..
According to DW2, the Sub Registrar read over the contents of Ext.B5 Will to the testator and the testator acknowledged the contents thereof.
20. The Supreme Court in the case of H.Venkatachala Iyengar v. B.N.Thimmajamma & others [1959 Suppl. (1) SCR 426] has held as under:-
"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 a 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 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 R.S.A.No.129 of 2016 ..21..
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.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely R.S.A.No.129 of 2016 ..22..
removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. 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 may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
21. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao & others [(2006) 13 SCC 433] the Apex Court held in paragraphs 32 and 33 thus:-
"32. Section 63 of the Succession Act lays down the mode and manner of execution of an unprivileged Will. Section 68 of the Evidence Act postulates the mode and manner of proof of execution of document which is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive R.S.A.No.129 of 2016 ..23..
subject to the process of the court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Indian Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.
33. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a R.S.A.No.129 of 2016 ..24..
defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D.Shende v. Tarabai Shedage (2002) 2 SCC 85 and Sridevi v. Jayaraja Shetty (2005) 2 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document."
22. In Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria & others [(2008) 15 SCC 365] the Apex Court held that, when it was not proved that both the attesting witnesses had either attested the Will in the presence of each other or that the testator had acknowledged his signature in the presence of the other attesting witness, the Will is not legally proved.
23. As per the provisions of Section 63 of the Indian Succession Act, for the due execution of a Will (i) the testator should sign or affix his mark to the Will; (ii) the signature or mark of the testator, 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 of the R.S.A.No.129 of 2016 ..25..
Will; (iii) the Will should be attested by two or more witnesses and (iv) 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.
24. In Yumnam Ongbi Tampha Ibema Devi v.
Yumnam Joykumar Singh & others [(2009) 4 SCC 780] the Apex Court held in paragraph 12 as hereinbelow:-
"12. 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 witness should put his signature on the Will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Since a Will is required by law to be attested, its execution has to be proved in the manner laid down in 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."R.S.A.No.129 of 2016
..26..
25. There is nothing in this case to show that the propounder has succeeded in showing that Ext.B5 Will was signed by the testator and that she was at the relevant time in a sound disposing state of mind. Further, there is nothing on record to indicate that the testator understood the nature and effect of the disposition and that she put her signature to the document of her own free will and that she has signed in the presence of DWs.3 and 4 who attested in it in her presence and in the presence of each other.
26. The 1st defendant has filed a written statement agreeing for partition of the entire plaint B schedule property. However, as regards the plaint A schedule property he had raised some contentions stating that item No.3 in plaint A schedule property was given possession to the 1st defendant by the father during his life-time. Though he did not challenge the judgment and decree of R.S.A.No.129 of 2016 ..27..
the trial court, he also filed this appeal along with the plaintiff as the 2nd appellant herein. In the trial court the 2nd defendant has filed a counter claim alleging that he is the owner of plaint B schedule property and is entitled to one half share in the plaint A schedule property. The counter claim was filed by the 2 nd defendant after filing the written statement. The right of the 2nd defendant over the plaint B schedule property and share in the plaint A schedule property were decided by the court below. While deciding the question of partition, the court below disallowed the counter claim.
27. Going by the entire evidence, it is clear that, the 2nd defendant has failed to remove all the suspicious circumstances attached to the Will and also failed to prove the execution of the Will in accordance with the provisions of Section 68 of the Evidence Act. Accordingly, the substantial questions of law 1 to 4 framed by this Court by R.S.A.No.129 of 2016 ..28..
order dated 03.02.2016 are answered against the 2 nd defendant. Admittedly, the plaint schedule properties contained two items, namely, plaint A schedule property which belonged to father, Parameswaran and plaint B schedule property which belonged to mother Bhavani. Father-Parameswaran died 18 years back. The plaintiff has filed the suit for partition of plaint A and plaint B schedule properties into three shares and for allotting one third share of plaint schedule properties to her.
28. For the reasons stated above, the judgment and decree dated 30.9.2015 passed by the Sub Court, Perumbavoor in A.S.No.42/2014 and the judgment and decree dated 31.3.2014 passed by the Munsiff's Court, Perumbavoor in O.S.No.114/2010 are set aside.
29. The appeal succeeds and is allowed. The plaint A and B schedule properties are found partible and a preliminary decree is passed on the following terms:- R.S.A.No.129 of 2016
..29..
The plaintiff is entitled to get one third share in the plaint A and B scheduled properties. The 1 st defendant and the 2nd defendant are also entitled to get one third share each over the aforesaid properties. The plaintiff is entitled to share the profits from plaint A and B schedule properties as per her share in accordance with law. The share of the defendants shall be allotted on payment of the requisite court fee. The parties are at liberty to file application for passing final decree. Considering the facts and circumstances, there will be no order as to costs.
Sd/-
N.ANIL KUMAR, JUDGE skj