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1984 DIGILAW 327 (KER)

KUNJULEKSHMI v. RAMAKRISHNAN

1984-11-24

FATHIMA BEEVI

body1984
Judgment :- 1. The plaintiff in a suit for partition is the appellant. The trial court in granting a preliminary decree has disallowed the plaintiff's claim for share in items 1, 2, 5, 6, 8 and 22 of the plaint schedule upholding the defendants 'contention that these items had been bequeathed by the plaintiff's mother under Ext. D11 will dated 18-1-1966. The appeal preferred by the plaintiff was unsuccessful, hence the second appeal. 2. The only question that now falls for consideration is whether Ext. D11 is a genuine will duly executed by the plaintiff's mother Gouri. Gouri died on 16-9-1966. The plaintiff and the defendants 1 to 4 are the children of Gouri. Defendants 5 to 12 are her grand children. These grand children are the beneficiaries under the will. Gouri had absolute right over 3 acres 45 cents of property and equity of redemption over another 1 acre and 43 cents. The property dealt with under Ext. D11 consists of 65 cents out of the 3 acres 45 cents and 87 cents out of the 1 acre 43 cents. The items 1 and 2,5,6.8 and 22 are thus included in the will in the schedules A to D thereof. The defendants 5 to 7, the children of the 2nd defendant are given the A schedule items; defendants 8 to 10 the children of the 3rd defendant are given the B schedule items; the 11th defendant the son of the 4th defendant is given the item in C schedule and the 12th defendant the daughter of the plaintiff is given the D schedule items. The 1st defendant is given the life interest in the A schedule properties. The trial court has found that Gouri had full testamentary capacity at the time of the impugned will and the bequest is not unconscionable or unreasonable. These findings have not been successfully assailed either before the lower appellate court or this Court. 3. The learned counsel for the appellant relying on Purnima Debi v. Khagendra Narayan (AIR. 1962 SC. 567) wherein the decision in H Venkatachala Iyengar v. B. N. Thimmajamma (AIR. 1959 SC. 443) has been followed, submitted that the onus of proof of execution and attestation is on the propounder of the will and if there are any suspicious circumstances it is part of the onus of the propounder to remove those suspicions. 1962 SC. 567) wherein the decision in H Venkatachala Iyengar v. B. N. Thimmajamma (AIR. 1959 SC. 443) has been followed, submitted that the onus of proof of execution and attestation is on the propounder of the will and if there are any suspicious circumstances it is part of the onus of the propounder to remove those suspicions. It is argued that the contesting defendants have not discharged that onus and that neither execution nor attestation of Ext. D11 has been proved in accordance with law. The contention is that the testator was an illiterate aged woman. The testament purports to bear the signature as well as the thumb impressions of the executant in each page and the signature is in the form of strokes, that the manner of writing gives the impression that the will had been fabricated and therefore in the absence of credible evidence regarding the execution of the will no relief could be granted on the basis of Ext. D11. The courts below have concurrently found that the will is genuine. The tesator Gouri, though illiterate and aged, was active and healthy. Ext. P7 reveals that she instituted a suit in 1965, appeared before court and gave evidence in support of her claim on 22-2-1966. She must have been therefore in good health and of sound disposing mind, when the will was executed in January 18,1966. It cannot be said that there are circumstances which arouse the suspicion of the court that the will does not express the mind of the testator, on the evidence in the case. It is therefore to be considered whether the execution of the will is proved as required under law. 4. S.63 of the Indian Succession Act requires that every testator shall execute his will according to the rules provided thereunder. The testator shall sign or affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. The signature or mark of the testator shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. The testator shall sign or affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. The signature or mark of the testator shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. Sub-section(c) of S.63 which requires that the will shall be attested by two or more witnesses reads thus: "(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." Thus the execution of the will comprehends all the three formalities prescribed by S.63 including attestation of the will in testator's presence. The will has to be proved u/S. 68 of the Indian Evidence Act by calling at least one attesting witness if alive. 5. Ext. D11 which bears the signature and thumb impression of the testator is attested by two witnesses. The two attestors have been examined in the case. dw. 4 the first attestor is a senior advocate. dw. 5 the other attestor is an experienced advocate's clerk. Both these witnesses have testified to the fact of having attested the will. The learned counsel for the appellant submitted that the evidence of these witnesses is not sufficient to satisfy the requirements under S.63(c) of the Act. It was pointed out that dw. 4 who said that he has seen the testator sign, did not speak about the thumb impressions or the presence of the other attestor at that time. It was also submitted that dw. 5 did not see the testator sign and he did not speak to having received personal acknowledgment from the testator. The argument proceeds that both Dws. 4 and 5 did not testify to have attested the will in the testator's presence. It was also submitted that dw. 5 did not see the testator sign and he did not speak to having received personal acknowledgment from the testator. The argument proceeds that both Dws. 4 and 5 did not testify to have attested the will in the testator's presence. In the absence of such proof it is argued that due execution and attestation is not proved. 6. The respondents' learned counsel maintained that the evidence of Dws. 4 and 5 read as a whole leaves no room for doubt, that both the attestors attested the will in the presence of the testator, that dw. 4 has seen the testator sign while dw. 5 had received personal acknowledgment from her before attesting the will. Reliance was made on either side to the decisions in Girja Datt v. Gangotri Datt (AIR. 1965 SC. 346), Naresh Charan v. Paresh Charan (AIR. 1955 SC. 363), Purnima Debi v. Khagendra Narayan (AIR. 1962 SC. 567), Chandrasekharan Nair v. Krishnan Nair (1966 KLT. 355), Harish Chandra v. Basant Kumar (AIR. 1974 Orissa 170) and K. Nookaraju v. P. Venkatarao (AIR. 1974 Andhra Pradesh 13). 7. On a scrutiny of the evidence of Dws. 4 and 5 it could be seen that there is no serious lacuna. dw. 4 the advocate had known Gouri as she was his client. During the lunch interval between 1 p m and 2 p. m. while be was at his residence, Gouri took the will to him and requested that be should attest that document. He saw Gouri sign the deed before him and he then attested the signature. dw. 5 was not present at that time. This evidence of dw. 4 clearly shows that dw. 4 has seen the testator sign and that he attested the deed in the presence of the testator. dw. 5 the advocate's clerk was in the association hall when Gouri approached him with the request to attest the deed. dw. 5 said that Gouri handed over the deed to him and requested him to attest the same revealing that she had thereby given the properties to her children. He said that he signed the will then and there. dw. 5 the advocate's clerk was in the association hall when Gouri approached him with the request to attest the deed. dw. 5 said that Gouri handed over the deed to him and requested him to attest the same revealing that she had thereby given the properties to her children. He said that he signed the will then and there. Though dw.5 did not expressly state that he attested the deed in the immediate presence of the testator, from his narration it is abundantly clear that the testator was present when he attested the will and that the testator had acknowledged the execution before the attestation. dw. 5 thus testifies to the fact of having attested the will in the presence of the testator after receiving a personal acknowledgment of her signature therein. 8. The Supreme Court in Naresh Charan v. Paresh Charan (AIR. 1955 SC. 363) followed in Harish Chandra v. Basant Kumar (AIR 1974 Orissa 170) held that it cannot be laid down as a matter of law that because the witnesses did not state in chief-examination that they signed the will in the presence of the testator, there was no due attestation. It will depend upon the circumstances elicited in the evidence whether the attesting witnesses signed in the presence of the testator. Where a will duly signed by the testator was attested by two witnesses not in the presence of each other but at different times, there must be proof of the two attestations in the presence of the testator. There is such proof of attestation by two witnesses in this case. The credibility of the witnesses cannot be called in question at this stage when the trial court as well as the lower appellate court had chosen to accept their testimony. There is also no material on record for holding a contrary view. There need not be positive evidence from the attesting witnesses that the testator's signature was on the will when they signed it. The production of a will by the testator with his signature upon it, and a request by him to the witness to attest it, is a sufficient acknowledgement of the signature. (See. Williams on Wills, Volume I, 5th Edition," Page 86). K. Nookaraju v. P. Venkatarao (AIR. The production of a will by the testator with his signature upon it, and a request by him to the witness to attest it, is a sufficient acknowledgement of the signature. (See. Williams on Wills, Volume I, 5th Edition," Page 86). K. Nookaraju v. P. Venkatarao (AIR. 1974 Andhra Pradesh 13) is a case where only one of the attestators was called to prove the will For want of proof of the other attestation, the court held that there is no proof of due attestation as required by S 68 of the Evidence Act. The decision has to be distinguished on the facts. As already pointed out, by the testimony of the two attesting witnesses Dws. 4 and 5, the ingredients of attestation contained in clause (c) of S.63, which are necessarily part of execution of a will, are established in this case. Ext. D11 has been thus duly proved as a genuine will under which certain items in the plaint schedule had been bequeathed. When Ext D11 is upheld, the appellant's claim for those items must necessarily fail. 9. The plaintiff's case that the suit properties had been acquired in the name of Gouri by her husband and Gouri had therefore no absolute right has been concurrently found against. Though a ground had been raised in the memorandum of appeal, the learned counsel for the appellant could not successfully assail the findings as erroneous in law. No other point has been pressed or argued. The appeal therefore fails and it is accordingly dismissed with costs.