CHANDRASEKHARAN NAIR v. KRISHNAN NAIR — 1965 DIGILAW 179 (KER)

Judgment :- 1. These appeals have arisen respectively in O. S. Nos. 236 of 1953 and 171 of 1957 on the file of the Munsiff, Muvattupuzha. It is conceded by both sides that the 1st defendant in O. S. No. 236 who is the karnavan of the branch of the defendants (in both suits) is not interested in the properties involved in these suits and as such may be left out of reference here. The other defendants in O. S. No. 236 are defendants in O. S. No. 171 also. The plaintiff in O. S. No. 236 is the 2nd plaintiff in O. S. No. 171, the 1st plaintiff in the latter suit being the husband of Rugmini Amma whose heir ship is the issue in these cases. As the two suits have been tried together and the main judgment is delivered in O. S. No. 236 of 1953, it is convenient to name the parties by their position in that suit, which will be done herein below. The Ist plaintiff in O. S. No. 171 who is not a party to O. S. No. 236 will be referred to in his judgment by this name "Suriamangalath Parameswaran Nair". 2. The properties involved in these two suits belonged to Rugmini Amma, who died on 22-8-1128 (April 4,1953). Suriamangalath Parameswaran Nair had married her on 13-9-1122.. and would be her sole heir if she died intestate, under S.1.9 of the Travancore Nayar Act, II of 1100. On June 8,1953, he sold (vide Ex. B) one of the properties inherited from her to the plaintiff. As the latter was obstructed by the defendants from taking possession of the property, he instituted O. S. No. 236 of 1953 for a declaration of his title to the property and for an injunction to restrain the defendants from interfering with his enjoyment thereof. Defendants 2 to 11 denied Suriamangalath Parameswaran Nair's marriage with Rugmini Amma, and claimed all her properties as per devises under her will, Ext. VIII, dated March 21,1953, which the 2nd defendant got registered on May 2,1957. O. S. No. 171 of 1957 has been instituted by Suriamangalath Parameswaran Nair and the Plaintiff, soon after the registration of the will, for a declaration of its invalidity and for recovery of the properties from the defendants. The defence is the same as is urged in the former suit. O. S. No. 171 of 1957 has been instituted by Suriamangalath Parameswaran Nair and the Plaintiff, soon after the registration of the will, for a declaration of its invalidity and for recovery of the properties from the defendants. The defence is the same as is urged in the former suit. The courts below concurred to find the marriage of Suriamangalath Parameswaran Nair with Rugmini Amma true, and to uphold Ext. VIII as genuine and valid. In these second appeals by the plaintiffs the finding as to validity of the will is challenged as erroneous and unsustainable in law. The marriage which has been concurrently found by the Courts below on very reliable proof is not in challenge now. 3. In H. Venkatachala Iyengar v. B, N. Thimmajama AIR. 1959 S. C. 443 Gajendragadkar J. (as he then was), speaking for a unanimous Bench of the Supreme Court, observed: "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 his own free will ... the Court would naturally expect that all legitimate suspicions should be completely 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 in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive." In Rani Purnima Debi v. Kumar Khagendra Narayan Deb AIR. 1962 S. C. 567 even though the will was registered on the testator's admission of its execution, the Supreme Court has held it... we are left with the bald fact of registration which in our opinion is insufficient in the circumstances of this case to dispel the suspicious circumstances which we have enumerated above. We are therefore not satisfied about the due execution and attestation of this will by the testator and hold that the propounder has been unable to dispel the suspicious circumstances which surround the execution and attestation of this will. In the circumstances no letters of administration in favour of the respondent can be granted on the basis of it." and therefore reversed the judgments of the High Court and of the trial court accepting the will. The genuineness of the will Ext. VIII having been in challenge in the present suits, the duty is on the propounders of the will to prove to the conviction of the Court that it was a real, voluntary, and conscious act of the testator. As the court below missed salient facts to be adverted to in an adjudication of the genuineness of a will, as laid down by the Supreme Court, their findings cannot conclude the question and a fresh appraisal of the evidence becomes necessary in this case. 4. Rugmini Amma belonged to the Vellappilli tarwad that got divided in to three branches, Vellappilli, Naduvile Mampilli and Kappakadu, under the partition evidenced by Ext. 4. Rugmini Amma belonged to the Vellappilli tarwad that got divided in to three branches, Vellappilli, Naduvile Mampilli and Kappakadu, under the partition evidenced by Ext. G dated 2110 1084 M. E. The plaintiff is a member of the Kappakadu branch. The defendants are members of the Vellappilli branch defendants 4 and 5 being sisters, defendants 2,3, 10 and 11 the children of the 4th defendant, and the other defendants the children of the 5th defendant. (The 1st defendant is a brother of defendants 4 and S). Rugmini Amma belonged to the Naduvile Mampilli branch (which has an alias "Puthenpura"). She became the Jast survivor of the branch when she lost her mother in Idavom 1120 (May/June 1945). The 2nd defendant, as D, W. 2, asserts that she was taken to his house (Vellappilli) two months after she lost her mother, that ever thereafter she had been in Vellappilli under the care and protection of the defendants, that the reason for her shifting to Vellappilli was her solitariness, that she became anaemic by about 1123 and did not improve in spite of treatments and that her condition worsened three months before her death on 22nd Meenom 1128. It is difficult to believe the above averments. Rugmini Amma had a husband, Narayanan Nair by name, when she lost her mother. Within two months of her mother's death she had executed Ext. J dated 5121120, a settlement of her properties, to confer a moiety thereof on her husband. Their relations must have been very cordial there. But affairs appear to have taken a turn by the middle of 1122. On 24 81122 Rugmini Amma and her husband joined to execute a deed of divorce, Ext V between them and the same day the husband returned as per Ext. VI the properties conferred on him by Ext. J. The reason for their divorce is not disclosed here. The husband's return of properties given shows that he was not greedy of wealth. The only ground for the divorce mentioned in Ext. V is inability to get on together. Subsequent events, which will be adverted to presently, show that the defendants had an eye on the properties of Rugmini Amma and that may in all probability, be the under current which affected the events subsequent to Ext. J. On 13 91122 Suriamangalath Parameswaran Nair married her. V is inability to get on together. Subsequent events, which will be adverted to presently, show that the defendants had an eye on the properties of Rugmini Amma and that may in all probability, be the under current which affected the events subsequent to Ext. J. On 13 91122 Suriamangalath Parameswaran Nair married her. Her re-marriage within a month of the divorce indicates that she must have been in sound health and good spirit then. The next notable event disclosed by evidence is the occupation of NADUVILE Mampilli house by the 5th defendant along with her husband and children. 2nd defendant, as D. W. 2, has sworn it to have been in mid-Mithunam 1126 (July 1951). Admittedly they had no right to the house or its compound then. According to the 2nd defendant they have ever thereafter been residing there, and Rugmini Amma was in Vellappilli house of the defendants. It is a very strange and suspicious fact that Rugmini Amma left her house to the occupation of the 5th defendant with her husband and children and lived in the adjacent house of the defendants in which she had no interest. If it was a case of the defendant's taking pity of her solitariness, one would expect someone among the defendants to live with Rugmini Amma in her house. According to the 2nd defendant (D. W. 2) even in her worse condition in the three months preceding her death Rugmini Amma was able to move about freely. The occupation of her house by the 5th defendant and others can only be to make it impossible for Rugmini Amma to live there and thereby to assure her continuance in Vellappilli with defendants 2 to 4. The inference becomes inevitable that by July 1951 Rugmini Amma came or was brought under the control of the defendants. It is in the light of these circumstances that I must read the will Ext. VIII. 5. The inference becomes inevitable that by July 1951 Rugmini Amma came or was brought under the control of the defendants. It is in the light of these circumstances that I must read the will Ext. VIII. 5. The will opens with recitals that the testatrix, while living alone, after her mother's death, in Naduvile Mampilli house, became sickly, when the 2nd defendant, who is a cousin in her grandmother's tavazhi, removed her from her house to his tarwad house Vellappilli and himself and the members of his tarwad had been from 1120 onwards attending on and treating her, that inasmuch as the income of her properties was found insufficient for her treatment and protection the 2nd defendant met the same out of his pocket, that she is continuing under the protection and treatment of the aforesaid persons and that though she had been married it has been dissolved by a registered deed. Evidence on record is clear that these recitals are not quite correct. The 2nd defendant is admitted to be not a member of her grandmother's tavazhi, but only of her great-grandmother's tavazhi. The purpose of the recital that he belongs to her grandmother's tavazhi can be easily seen when we remember that under S.19 of the Travancore Nayar Act, 1100 members of the grandmother's tavazhi would be co-heirs with the husband of a Nayar woman but not members of great-grandmother's tavazhi. The recitals that she became lonely and chronically sickly by the end of 1120 M. E. and that since that she had been under the care and protection of the defendants are absolute lies. Ext. J the settlement she executed in favour of her husband Narayanan Nair was on 512 1120. Their relations must certainly have been very amorous then. That marriage continued till 24 81122. On 13 91122 she married Suriamangalath Parameswaran Nair. That alliance was not broken till her death. So she was never 'lonely'. Her marriage on 13 91122 and that soon after her divorce of Narayanan Nair shows convincingly that she was not sickly in the latter part of 1122. The recital that she became chronically sickly and was therefore removed to the house of the defendants and was treated there since then is most incredible. So she was never 'lonely'. Her marriage on 13 91122 and that soon after her divorce of Narayanan Nair shows convincingly that she was not sickly in the latter part of 1122. The recital that she became chronically sickly and was therefore removed to the house of the defendants and was treated there since then is most incredible. As I have said already, when we remember that her house is next door to the defendants' her removal to the latter and the occupation of her house by defendants 5 to 8 and others spell an underhand design therein. The recital that as the income from her properties was insufficient to meet the expenses of her treatment the 2nd defendant spent the necessary amounts out of his packet is belied by another recital in the very same instrument that she had executed a promissory note on 1712 1126 for Rs. 500/-for expenses of her treatment and another promissory note on 9 31127 for Rs. 150/-both to third persons. There is no evidence here of the truth of those promissory notes, which are denied by the plaintiffs; but the two recitals cannot be easily reconciled. The express reference to her former marriage and its dissolution by a registered deed, coupled with a statement that she was solitary necessarily implies a negation of her latter marriage with Suriamangalath Parameswaran Nair and it appears to be deliberate design to deny the truth of the latter marriage as a defence to the naturally expected claims of the husband. The denial of the latter marriage by the defendants in their written statements and evidence is further proof of that design and the probable origin of the recital in the will. Even according to the defendants, the will was prepared in their house and, if the testatrix was then under their care and protection the probabilities are that they could not be innocent of the recitals in the will. The only explanation offered for this, obviously false recital in Ext. VIII, is that Suriamangalath Parameswaran Nair having not been cordial with the testatrix she ignored her marriage with him. To me that explanation appears most incredible. If properties were her own, she could well have owned her relation with him, and then disinherited him with absolute immunity. The only explanation offered for this, obviously false recital in Ext. VIII, is that Suriamangalath Parameswaran Nair having not been cordial with the testatrix she ignored her marriage with him. To me that explanation appears most incredible. If properties were her own, she could well have owned her relation with him, and then disinherited him with absolute immunity. If the will was her conscious act, a suppression of her subsisting marriage while reference is made to a dissolved marriage cannot be expected particularly in the context of the other recitals therein. The above said recitals in the will, and the other facts and circumstances referred to above make out a strong suspicion about Ext. VIII having been a conscious act of Rugmini Amma. All her properties are given under it to the defendants defendants 5 to 8 are given the Naduvile Mampilli house and its compound 74 cents in extent, and all the rest of her properties, 11/2 acres of paddy land and 3 2/3 acres of garden land, are given to defendants 2 to 4. Evidence shows that that was exactly as possession was taken by the respective defendants during her last days when she fell under their control. 6. Apart from the interested testimony of the 2nd defendant, the propounder of the will, to whose branch are the devises of all the properties of the testatrix, there is only the evidence of P. W. 7, one of the attestors, to prove the execution of the will. Neither the other attestor to the will, nor its scribe, who, according to P. W. 7 and the 2nd defendant was present throughout its execution, nor any of the other persons who are said to have been present at the execution of the will, has been examined in this case. Counsel for the respondents pointed out that certain witnesses had been summoned once and they came to Court; but that day their (the defendants) counsel got the case adjourned and no further attempt was made to cite them at the trial. The fair copy of the will is stated to have been read to the testatrix, but there is no say that its draft was prepared with her knowledge. The scribe, who is stated to have read out the fair copy of the will to the testatrix was a material witness. The omission to examine him is very suspicious. The fair copy of the will is stated to have been read to the testatrix, but there is no say that its draft was prepared with her knowledge. The scribe, who is stated to have read out the fair copy of the will to the testatrix was a material witness. The omission to examine him is very suspicious. pw.7 does not appear to be a disinterested witness. He lived a mile away from the Vellappilli house where the will was prepared and executed. His testimony shows an intimacy between him and the defendants. The 2nd defendant's wife, along with her mother, lives next door to his house, in the same compound that belongs to his grandmother who herself is living with him. He says that he used to visit the 2nd defendant's house (Vellappilli) frequently. But in the period 1122 to 1128 he does not remember to have ever visited Naduvile Mampilli house of the testatrix. His denial of any information of the marriage of the testatrix with Suriamangalath Parameswaran Nair is telling, as he is a relation of the parties and is not living very far off. Every statement made by the 2nd defendant which has been shown to be raise above, P.W.7 has also sworn. In my view it is impossible to place reliance on P. W. 7's testimony in this case. Counsel pointed out that the Munsiff who saw him in the witness-box has believed him fully. The way in which the Munsiff has appreciated the facts in the case can well be seen if one cares to read Para.21 and 25 of his judgment in the suit. 7. Counsel for the defendants urged also that the credibility of a witness who attested the will should not be judged by the contents of the will. The identical contention appears to have been urged before the Supreme Court in Ramachandra Rambux v. Champabai A. I R.1965 S. C. 354 when their lordships observed: "In order to judge the credibility of the witnesses, the Court is not confined only to the way in which the witnesses have deposed or to the demeanour of witnesses, but it is open to it to look into the surrounding circumstances as well as the probabilities, so that it may be able to form a correct idea of the trustworthiness of the witnesses. This issue cannot be determined by considering the evidence adduced in the court separately from the surrounding circumstances which have also been brought out in the evidence or which appear from the nature and contents of the document itself." 8. Thus, the suspicion created by the facts mentioned in Para.4 and 5 above remains undissolved by the evidence on record; on the other hand, it appears corroborated by other circumstances as the avoidance of registration even though according to D. W. 2 and P. W. 7 immediate registration was contemplated while the will was executed, the absence of a thumb-impression of the testatrix in view of the simplicity of her mark which is so easy for forgery by anybody, and the unguarded admission of the 2nd defendant soon corrected when the munsiff asked him again that the testatrix expressed her desire to make a disposition of her properties three or four days before her death to a third person who has not been cited in the case. As the Supreme Court has held, proof of a will necessarily involves the removal of all reasonable suspicions on its genuineness, the will Ext. VIII cannot be held to be proved as the will of Rugmini Amma. It must then follow that no claim to her properties can be sustained on the basis of that will. As Suriamangalath Parameswaran Nair is conceded to be her intestate heir, his title to the suit properties in succession to Rugmini Amma has to be declared and bis alienation of one of such properties to the plaintiff has to De held valid. 9. In the result, both the second appeals are allowed and the respective suits decreed with the modification that the mesne profits of items 2 to 6 in O. S. No. 171 of 1957 shall, for want of better proof, be as defendants have admitted in their written statement, viz., Rs. 20/- per annum. But, if the defendants do not surrender the properties to the plaintiffs in O. S. No. 171 of 1957 within three months of this date, they will be liable to the mesne profits from this date according to the current yield of the properties (from year to year) as may be fixed by the executing Court. 20/- per annum. But, if the defendants do not surrender the properties to the plaintiffs in O. S. No. 171 of 1957 within three months of this date, they will be liable to the mesne profits from this date according to the current yield of the properties (from year to year) as may be fixed by the executing Court. As both the appeals concern the same question there will be order as to costs in one only, which in this case shall be S. A. No. 862 of 1961, and there will be no order as to costs in the other second appeal. Allowed.