Research › Browse › Judgment

Kerala High Court · body

1994 DIGILAW 435 (KER)

Ramachandra Rao v. Rajendra Rao

1994-11-16

M.M.PAREED PILLAY, VILAS VINAYAK KAMAT

body1994
JUDGMENT Pareed Pillay, Ag. C. J. 1. First appellant is the son of late Madhava Rao, brother of Pandarinath Rao who died on, 7th January 1990. Second appellant is the wife of the first appellant. First respondent and deceased Nagari Bai filed O.P. 7 of 1990 for succession certificate contending that they are the legal heirs entitled to succeed to the estate of the deceased Pandarinath Rao. They are the surviving brother and sister of Pandarinath Rao. Appellants filed O. P. 21 of 1990 for collection of the very same debts on the basis of a Will alleged to have been executed by Pandarinath Rao on 30th July 1989 where under they are claiming to be the legatees. 2. Both the Original Petitions were jointly tried. The learned Sub Judge, Kochi allowed O. P. 7 of 1990 and directed issuance of succession certificate to the petitioners (respondents herein). O. P. 21 of 1990 was dismissed on the finding that the propounders of the Will failed to establish execution of the same. 3. There is no dispute among the contesting parties with regard to the mental faculty and capacity of Pandarinath Rao in July, 1989 when the Will is alleged to have been executed. The common evidence is that Pandarinath Rao was healthy and that he was looking after his affairs including business till his death. 4. As the execution of the Will is disputed, the burden is squarely upon the propounders to establish the same. It is for them to dispel suspicious circumstances surrounding the execution of the Will. It is trite law that a Will is one of the solemn documents known to law. As it would be humanly not possible to call the executant before the Court to deny or affirm the execution of the Will, it is highly essential that most trustworthy and unimpeachable evidence should be produced before the Court to substantiate the authenticity and truthfulness of the Will. The factum of execution of the Will has to be proved by the propounder explaining every suspicious circumstance pointed out by the opposite party. The Court has necessarily to consider all attendant circumstances and improbabilities, if any, staring at the Will. The factum of execution of the Will has to be proved by the propounder explaining every suspicious circumstance pointed out by the opposite party. The Court has necessarily to consider all attendant circumstances and improbabilities, if any, staring at the Will. In this context, it is useful to refer to Jaswant Kaur v. Amrit Kaur AIR 1977 SC 74 where the Supreme Court held thus: "In cases where the execution of a Will is shrouded in suspicion, its proof ceases to be a simple lis between the Plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the court that the Will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will." In a case where the propounder has failed to discharge the onus of explaining the suspicious circumstances regarding the execution of the Will, it would indeed be difficult for the Court to accept his case. Thus, the legal position is that where there are suspicious circumstances surrounding the execution of the Will, the burden is entirely upon the propounder to explain them to the satisfaction of the Court. 5. One of the suspicious circumstance may be regarding the genuineness of the signature of the testator. Though the appellants are admittedly in possession of several documents containing the signature of the testator, they have not cared to produce any such document for comparison of the signatures. Respondents who disputed the Will produced Exts. A-25, A-26, A-27 and A-28 (photostat copies of vakalaths, one petition and one affidavit) admittedly signed by the testator. The learned Sub Judge on a careful examination of the admitted signatures found that it is not possible to say with certainty whether signature in Ext. B-2 is genuine or not. Regarding attestation of Ext.B-2 Will R. W. 2's evidence alone is there. The learned Sub Judge did not place any reliance on R. W. 2's testimony. 6. The learned Sub Judge on a careful examination of the admitted signatures found that it is not possible to say with certainty whether signature in Ext. B-2 is genuine or not. Regarding attestation of Ext.B-2 Will R. W. 2's evidence alone is there. The learned Sub Judge did not place any reliance on R. W. 2's testimony. 6. Learned counsel for the appellants submitted that R. W. 2's evidence ought to have been believed by the Sub Judge and reasons mentioned for disbelieving him are far from convincing. Respondents contended that the solitary evidence; R. W. 2 cannot be given any weight at all in view of the unexplained suspicious circumstances regarding :the execution of the Will. 7. In support of the contention of the respondents that Ext. B-2 is a forged document, they rely on several circumstances. Ext. A-54 inventory shows several documents containing testator's signatures. Respondents filed petition to produce registered Will of Vishaya. In that Will testator was an attesting witness. That was not done. Ext. B-2 is alleged to have been executed on 30th July 1989. Testator died on 7th January 1990. After the 13 days ceremony, members of the family conducted a search of the documents of the testator. On that occasion Ext. B-2 Will was not traced. On filing O. P. 7 of 1990 respondents had sent notice to the appellants (Ext. A-14) to vacate the building. They were asked not to take any movables from the building. Ext. A-15 reply notice dated 9th February 1990 sent by the appellants through an advocate mentions no details of the Ext. B-2 Will. Respondents had filed a criminal complaint (Ext. A-16) on 11th February 1990 complaining forgery. On 17th February 1990 police came for investigation. Appellants did not have a case before the police also on basis of the Will. In fact, the Will was not produced before the police. Ext. A-17 refer report does not make any mention of the Will found in the house of the testator. 8. On 26th March 1990 appellants filed I. A. 630 of 1990 for impleading them in O. P. 7 of 1990. In the affidavit in support of that petition also, there is no mention of the details of the Will. Failure to mention date and details of the Will really assumes importance. 8. On 26th March 1990 appellants filed I. A. 630 of 1990 for impleading them in O. P. 7 of 1990. In the affidavit in support of that petition also, there is no mention of the details of the Will. Failure to mention date and details of the Will really assumes importance. Respondents had filed a suit for injunction against the appellants to restrain them from creating documents. Ext. A-22 is the copy of the plaint in O. S.329 of 1990 of the Munsiff's Court, Cochin. Along with that suit I. A. 745 of 1990 was filed for injunction. In the objection filed by the appellants, date and such other details of Ext. B-2 Will were not stated. 9. R.W. I deposed that Ext. B-2 Will was entrusted by her to her advocate before the police came for investigation. As already noted, the Will which is propounded by the appellants did not see the light of the day at that time. 10. A glance of the (Will Ext. B-2) would show that it is not free from suspicion. It is a typewritten document. There is no evidence as to who typed it. As there is evidence in the case that the testator was literate and that he was writing his accounts with regard to his business, even according to R. Ws. 1 and 2, it is really difficult to hold that the testator chose the Will to be typewritten. As already pointed out, a mere look at Ext. B-2 Will show that it is a concocted piece of document. Appellants who heavily rely on Ext. B-2 Will did not dare to produce the same for comparison of the disputed signature of the testator with his admitted signatures in several documents. 11. A property sold in 1969 by Ext. A-48 sale deed is mentioned as a property in the Will as well. Sulochana's name is shown in Ext. B-2 as Sulakshana. The fact that a property which has been sold by the testator long ago has been included in Ext. B-2 Will is certainly a suspicious circumstance which could not be explained by the propounders of the Will (appellants). As we hold that suspicious circumstances surrounding the Will have not been explained and that the burden on the appellants has not been discharged to the satisfaction of the court, the appeals are only to be dismissed. M. F. As. B-2 Will is certainly a suspicious circumstance which could not be explained by the propounders of the Will (appellants). As we hold that suspicious circumstances surrounding the Will have not been explained and that the burden on the appellants has not been discharged to the satisfaction of the court, the appeals are only to be dismissed. M. F. As. stand dismissed with no order as to cost.