Govindan Nair v. Janaki Amma — 1950 DIGILAW 3 (KER)

Judgment :- 1. The petitioner before the lower court is the appellant. On the strength of Ext. C unregistered will dated 10.9.1118, he applied for the grant of Letters of Administration in his favour. This will purported to have been executed by Vattekkatt Kalyani Amma and her daughter Lekshmikutty Amma, who were the only two members of their thavazhi which became separated from their common tarwad as per Ext. II partition deed dated 15.9.1115. The counter-petitioners challenged the genuineness of Ext. C and contended that it was a spurious document fraudulently brought into existence by the petitioner himself to serve his ends. They also contended that after the death of Kalyani Amma, her daughter Lekshmikutty Amma, who was the sole surviving member in their thavazhi and who became entitled to the properties of that branch, settled those properties on the counter petitioners, who are members of the other collateral branches of the common tarwad by executing Ext.1 registered settlement deed on 8.1.1119. The lower court upheld these contentions and found that Ext. C is not genuine and that, even if it is a genuine document, it has been effectively revoked by the execution of Ext. I, settlement deed. On the strength of these findings, the petitioner's application for Letters of Administration was dismissed. His appeal is against that order. 2. It is seen from Ext. II that the thavazhi of Kalyani Amma and her daughter Lekshmikutty Amma had become separated from the common tarwad in the year 1115 and that these two member remained joint. It is conceded even by the petitioner himself as the second witness on his side that these two ladies had not become divided in interest. Ext. C also is seen to have proceeded on the basis that the two ladies remained joint with rights of survivorship. Ext. C is a joint will purported to have been executed by the two ladies in respect of their common properties. Such a joint will could be revoked by either of them during the life-time of both or by the survivor on the death of one of them. It is contended on behalf of the petitioner that clause 9 of Ext. C is a joint will purported to have been executed by the two ladies in respect of their common properties. Such a joint will could be revoked by either of them during the life-time of both or by the survivor on the death of one of them. It is contended on behalf of the petitioner that clause 9 of Ext. C which states that on the death of one of the executants her rights will vest in the legatee, is tantamount to a declaration of the executant's intention to become divided in interest and that as such it must be deemed that each of them had separate and divisible interest in the thavazhi properties. Such a provision by itself cannot be said to have effected a severance of interest as between the mother and the daughter. There are other provisions in Ext. C, itself clearly indicating that in spite of the execution of Ext. C the intention of the executants was to remain joint. It is stated in the document that they could incur debts charged on the properties only under a registered document jointly executed by both of them. It is also stipulated that the will could be revoked only by both of them jointly. Thus there can be no doubt that even if Ext. C is genuine, the execution of it has not effected a status of division between the two ladies. In spite of the execution of Ext.C, they continued to be members of an undivided thavazhi with all the legal incidents attached to it. It follows therefore that on the death of Kalyani Amma all her rights in the joint properties of the thavazhi became vested in her daughter Lekshmikutty Amma as the sole surviving member of the thavazhi. The effect of a will executed by an undivided member of a co-parcenary in respect of his interest in the coparcenary property came up for consideration in Radha Ram Asaram v. Ganga Ram (159 Indian Cases 227) and there it was held that on the death of the testator, his interests in the co-parcenary properties vest in the surviving members and that therefore the legatee could not get anything under the will. In Darbans Lall v. Dhaull Devi (163 Indian Cases 214) it was held that a co-parcenery cannot will away any rights in the properties belonging to a joint Hindu family and that the making of such a will will not result in a severance of his interest in the joint family property. The principles accepted in these rulings are also in support of the position that on the death of Kalyani Amma, her interests in the thavazhi properties devolved by survivorship on her daughter Lekshmikutty Amma and the daughter was therefore competent to deal with the entire properties of the thavazhi. As the sole surviving member of the thavazhi, she executed Ext. I settlement deed in respect of those properties. It is a registered document and its genuineness is not challenged. Its genuineness is also proved by the witnesses examined on the counter-petitioner's side. By the execution of this settlement deed, Ext. C will even if genuine, has been effectively revoked. On this ground alone the lower court's order dismissing the petitioner's application for Letters of Administration based on Ext. C could be sustained. 3. The question of the genuineness of Ext. C will itself may now be considered. The petitioner who has propounded the will, is the sole beneficiary under it. Admittedly he was managing the thavazhi properties of Kalyani Amma and her daughter Lekshmikutty Amma ever since that thavazhi became separated from the common tarwad under Ext.II partition deed of the year 1115. Ext. D series of tax receipts and michavaram receipts produced by the petitioner, also prove that fact. On the date of Ext. C Kalyani Amma was aged 84 and Lakshmikutty Amma was aged 65. It is conceded by the petitioner that at the time of Ext. C these ladies were temporarily residing with him in his own house away from their own house. It is also admitted that the will was got prepared by him in the hand-writing of one Madhava Menon who is a document writer. The petitioner would say that the draft was prepared by himself at the instance of the two ladies and in accordance with the terms stated by them and that thereafter he took the draft to the document writer and got the original prepared. These circumstances by themselves are sufficient to raise a suspicion about the genuineness of Ext. The petitioner would say that the draft was prepared by himself at the instance of the two ladies and in accordance with the terms stated by them and that thereafter he took the draft to the document writer and got the original prepared. These circumstances by themselves are sufficient to raise a suspicion about the genuineness of Ext. C. The onus was heavy on the petitioner propounding such a will to repel all such suspicions by adducing in dependent and reliable evidence in proof of the genuineness of the will. In Venkitaramana Ayyar v. Thailambal (32 Cochin 530) it was laid down that "if a party writes or prepares a will under which he takes a benefit, that is a circumstance ought generally to excite the suspicion of the court and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased". To the same effect is the ruling in Muhammad Kunhi v. Ayisumma (32 Cochin 560). In the present case the only evidence adduced in proof of the genuineness of Ext. C consists of the testimony of the petitioner's witnesses Nos. 3 and 4 besides his own interested statement. The third witness is none other than the brother-in-law of the petitioner and as such he is as much interested as the petitioner himself. Further this witness was a Kariasthan in Management of a Devaswom of which the fourth witness was one of the Ooralars. It is clear from the evidence of this fourth witness that he has come forward to oblige the 3rd witness and the petitioner. In order to explain the presence of the 4th witness at the residence of the petitioner at the time of the alleged execution of Ext. C will by the two ladies, he has stated that he had gone there to meet Lekshmikutty Amma and to give her an amount of Rs. 10/- as per the direction of his Karnavan. Even though he would say that the amount was paid on that particular day, he has admitted that such payment will not be borne out by his own accounts. 10/- as per the direction of his Karnavan. Even though he would say that the amount was paid on that particular day, he has admitted that such payment will not be borne out by his own accounts. Further, the story that he went to the petitioner's house to meet Lekshmikutty Amma and to make the payment of Rs. 10/-, appears on the face of it artificial and unbelievable. The document writer who prepared Ext. C is not made to attest it, nor has he been examined as a witness in this case. No satisfactory explanation is forthcoming why no independent witness was made to attest the will. Why Ext. C was not registered is also not explained. The petitioner admits that when his own father executed a will in his favour it was registered. In the case of Ext. C such registration would have been felt highly desirable particularly in view of the fact that the alleged executants were two ladies of advanced age and whose affairs were being managed by the petitioner himself. According to the petitioner and his witnesses, Lekshmikutty Amma could read and write and Kalyani Amma also was literate. But it is significant to note that neither of these two ladies has written her name at any portion of Ext. C. The version put forward by the petitioner and his witnesses is that these two ladies as well as the attestors signed Ext. C with the same fountain-pen. But an examination of the signatures of the attestors and also of the executants of Ext. C, shows that the ink used by the attestors is different from the ink used by the executants for signing the document. This is a strong circumstance indicating that the version that all these persons signed with the same fountain-pen, is not true. According to the counter-petitioners, the two ladies had entrusted signed papers with the petitioner for the purpose of filing the necessary applications for effecting mutation of name on the basis of Ext. II partition deed and that the petitioner must have utilised such papers for the purpose of fabricating Ext. C. The evidence of the second witness on the counter-petitioner's side shows that even during the life-time of the ladies they had represented to him that the papers they had entrusted with the petitioner were with him (the petitioner) and that he must be persuaded to return such papers. C. The evidence of the second witness on the counter-petitioner's side shows that even during the life-time of the ladies they had represented to him that the papers they had entrusted with the petitioner were with him (the petitioner) and that he must be persuaded to return such papers. No doubt this witness refused to interfere in the matter. All the same it is clear from his evidence that the version that signed papers had been entrusted by the ladies to the petitioner is true. This fact also highly probabilises the counter-petitioners' version that Ext. C was fabricated by the petitioner with the help of such papers. The internal evidence furnished by Ext. C also leads to the same interference. In Ext. C there is a clause imposing restriction on the powers of these ladies to revoke the will. Similarly there is another provision by which their liberty to incur any debts has been very much curtailed. In fact the provision is to the effect that if they want to borrow, any money, it could be done only under a registered document jointly executed by both them and that even after the death of one of them the surviving member will not have the right to borrow even a pie except under a registered document. It is difficult to believe that these two ladies who were the absolute owners of the properties would have voluntarily imposed such restrictions on their own powers. Another strange feature about Ext. C is that absolutely no provision is made in favour of any of the members of these ladies' collaterals in their own tarwad. The petitioner who is the son of Kallyani Amma's brother, belongs to a different family and it is seen that he has been directed to perform the sradha of Kallyani Amma's deceased son, Sankunni Menon, and also the sradhas of these two ladies after their death. Consistent with the custom followed by these ladies, the probability is that they would have made provision for the performance of such sradha ceremonies by some members in their own family. All the above mentioned strange features regarding Ext. C lead to the irresistable inferencethat Ext.C is only a fabricated document brought into existence by the petitioner to serve his own ends. Accordingly we uphold the finding of the lower court that Ext. All the above mentioned strange features regarding Ext. C lead to the irresistable inferencethat Ext.C is only a fabricated document brought into existence by the petitioner to serve his own ends. Accordingly we uphold the finding of the lower court that Ext. C is not genuine and that the petitioner is not entitled to get Letters of Administration on the basis of that document. In the result this appeal is dismissed with costs. Appeal dismissed.