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1998 DIGILAW 50 (KER)

Sulochana v. Nani

1998-02-05

S.MARIMUTHU

body1998
JUDGMENT S. Marimuthu, J. 1. This appeal arises against the Judgment delivered by the District Judge,Tellicherry in A.S. No. 166 of 1986. Defendants 1, 2 and 5 are the appellantsand the plaintiff is the respondent in this appeal. The respondent as plaintifffiled O.S. No. 138 of 1984 before the District Munsiff, Tellicherry for injunctionrestraining the defendants not to make any attempt to trespass into theproperty on the following grounds: The suit property is 63 cents which is itemNo. 1 in Ext. A-2 Will dated 15th March 1979. The suit property originallybelonged to the mother of the plaintiff Chirootty. As per Ext. A-2 Will, item No.1, namely, the suit property was given to the plaintiff, item Nos. 2 and 3measuring 6 cents and 9 and odd cents respectively were given to thedefendants and their brother Rajeev and sister Shreeja. Chirootty, the motherof the plaintiff had a son by name Kumaran who is the father of thedefendants. As per the terms of the Will, the plaintiff has been enjoined thesuit property. Taking advantage of the fact that the plaintiff is not residing nearthe suit property, the defendants attempted to trespass into the suit property.Hence this suit. 2. The above averments of the plaintiff are resisted by the defendants on thefollowing grounds: Fifth defendant is the husband of the 2nd defendant.Defendants 3 and 4 were minors and therefore, they were struck off in theTrial Court itself. There is a house in the plaint schedule property in which theplaintiff and defendants 1 to 4 and their father Kumaran were residing. Afterthe death of Kumaran, Chirootty, the testatrix was not in a sound mentalcondition and she had been attacked by Rheumatism. Chirootty was veryaffectionate only towards the children of Kumaran the defendants. Thedefendants and the other children of 'Kumaran alone used to go to the houseof Chirootty and looked after her. At the time of her death, Chirootty was not ina sound disposing state of mind. Therefore, Ext. A-2 Will said to have beenexecuted by Chirootty is not a true and genuine one. Chirootty was not in sucha mental condition to execute the Will. The fact that a major portion has beengiven to the plaintiff and a negligible extent is given to the defendants itselfgoes to show that she was not in a proper mental condition. On the death ofChirootty, the entire property devolved upon the plaintiff and the wife andchildren of Kumaran. Chirootty was not in sucha mental condition to execute the Will. The fact that a major portion has beengiven to the plaintiff and a negligible extent is given to the defendants itselfgoes to show that she was not in a proper mental condition. On the death ofChirootty, the entire property devolved upon the plaintiff and the wife andchildren of Kumaran. They are in a joint possession of all properties. It is falseto state that the defendants attempted to trespass into the suit property. Hencethe suit for injunction is not maintainable. 3. Before the Trial Court, Exts. A-1 to A-3 and Exts. B-1 to B-3 were marked.On the plaintiff's side, plaintiff, her husband Krishnan, two attestors of the Will,the Sub Registrar and the Scribe were examined as PWs 1 to 6. The firstdefendant was examined as D.W. 1. The Trial Court on examining theevidence, both oral and documentary, held that though Ext. A-2 Will wasexecuted by Chirootty and that it was attested by PWs 3 and 5 in the light ofevidence, plaintiff and her husband P.W. 6 had played a prominent role in theexecution of the Will and therefore the prominent part played by the husbandof the plaintiff and other circumstances would go to show that Ext. A-2 Willwas not executed by the deceased Chirootty on her own free will and volition.The Trial Court also found that the plaintiff and the defendants, being the legalheirs of Chirootty have been in joint possession of the suit property ascoowners and therefore the plaintiff is not entitled to injunction as prayed for.Ultimately, the suit in the Trial Court ended in dismissal. Questioning theJudgment of the Trial Court, the plaintiff, as pointed out above, preferred A. S.No. 166/86 before the District Judge, Tellicherry. The District Judge, onconsidering the Judgment of the Trial Court held that Ext. A-2 Will has beenproved to be the last Will and testament of the deceased Chirootty. Finally, itallowed the appeal reversing the Judgment of the Trial Court. Consequently,the suit was decreed. The above Judgment of the District Judge is nowchallenged in this Court. 4. The points that were urged before me for consideration are: (1) WhetherExt. A-2 Will executed by Chirootty is genuine? (2) Whether the plaintiff hasgot right over the plaint schedule property? (3) Whether the plaintiff is entitledto the injunction as prayed for?Point Nos. 1 and 2: 5. The above Judgment of the District Judge is nowchallenged in this Court. 4. The points that were urged before me for consideration are: (1) WhetherExt. A-2 Will executed by Chirootty is genuine? (2) Whether the plaintiff hasgot right over the plaint schedule property? (3) Whether the plaintiff is entitledto the injunction as prayed for?Point Nos. 1 and 2: 5. Before discussing the evidence adduced in this case as well as the findingsof the first appellate court and Trial Court, I feel, some of the principles of lawsubmitted by both sides can be extracted hereunder. (1) Shashi Kumar v.Subodh Kumar A.I.R 1964 SC 529 In this decision the Supreme Court hasheld: "The mode of proving a Will does not ordinarily differ from that of proving anyother document except as to the special requirement of attestation prescribedin the case of a Will by S.63, Succession Act. The onus of proving the Will ison the propounder and in the absence of suspicious circumstancessurrounding the execution of the will, proof of testamentary capacity and thesignature of the testator as required by law is sufficient to discharge the onus.Where however there are suspicious circumstances, the onus is on thepropounder to explain them to the satisfaction of the court before the courtaccepts the Will as genuine. Where the caveator alleges undue influence,fraud and coercion, the onus is on him to prove the same. Even where thereare no such pleas but the circumstances give rise to doubts it is for thepropounder to satisfy the conscience of the court''........ (2) Smt. Malkuni v. Jamadar and others AIR 1987 S.C. 767 . The conduct ofthe beneficiary under the Will who takes vital role of active part in theexecution of the Will alone is not sufficient to doubt the genuineness of theWill. (3) Vrindavanibai Sambhaji Mane v. Ramchandra Vithal Ganeshkar and others AIR 1995 S.C. 2086 . The circumstances like "(a) Propounder taking prominentpart in execution of Will which confers substantial benefits on him; (b) Shakysignature; (c) Feeble mind which is likely to be influenced; (d) unfair and unjustdisposal of property", arc not unnatural and they alone that will not make theWill illegal when otherwise it is established by the propounder. (4) Smt. Sushila Devi v. Pandit Krishna Kumar Missir and others AIR 1971 S.C. 2236 . (4) Smt. Sushila Devi v. Pandit Krishna Kumar Missir and others AIR 1971 S.C. 2236 . "If the bequest made in a Will appears to be unnatural the court has toscrutinise the evidence in support of the execution of the Will with a greaterdegree of care than usual"............ "Will writtenon inferior type of paper and bequeathing most of the property to the son andthe husband of the pre-deceased daughter of the testator instead of his onlyliving daughter who was comparatively affluent held not invalid whengenuineness of his signature and execution were proved by witnessesincluding the scribe and attesting witnesses".......... (5) Rabindra Nath Mukherjee and another v. Panchanan Banerjee (Dead) ByLrs. and others (1995) 4 SCC 459 . A registered Will made by a 90 year oldlady itself is not a ground of making suspicious circumstances surrounding theexecution of the Will. The conduct of a lawyer of one of the executors in somecases identifying the testatrix before the sub Registrar will not make asuspicious circumstances. (6) Illyas and others v. Badshah alias Kamla AIR 1990 Mp 334 "A combinedreading of S.68 of the Evidence Act and S.63 of the Succession Act, 1925would require at least one attesting witness to be examined and the saidwitness should speak not only about the testator's signature or affixing hismark to the Will but also that each of the witnesses has signed the Will in thepresence of the testator. It is for the propounder to prove the Will and in theabsence of suspicious circumstances surrounding the execution of the Will,proof of testamentary capacity and the signature of the testator as required bylaw is sufficient to discharge the onus".............. On the above propositions of law laid down by the Supreme Court and theHigh Court in Madhya Pradesh, now I can discuss the evidence adduced onboth sides with reference to the execution of the Will and its genuineness andalso the Judgments of both the courts below. It is the finding of the Trial Courtthat though PWs 3 and 5 who are the attesting witnesses of Ext. A-2, haveturned hostile they have supported the case of the plaintiff respondent in theexecution of the Will. P.W. 3 had admitted before the Magistrate that he wasnot in his house and he had gone to the house of the 3rd defendant to tell himthat he would give evidence as an identifying witnesses to the Will. A-2, haveturned hostile they have supported the case of the plaintiff respondent in theexecution of the Will. P.W. 3 had admitted before the Magistrate that he wasnot in his house and he had gone to the house of the 3rd defendant to tell himthat he would give evidence as an identifying witnesses to the Will. Furtherreading of the evidence of P.W. 3 would go to show that he was going onchanging his versions and, in fact, his evidence is self contradictory and in onesuch circumstances when he went on changing his versions he was severelywarned while he was in the witness box. When considering the above fact andthe circumstance it is obviously clear that he has been gained over by thedefendants as contended by the plaintiff. However P-W. 3 has admitted hissignature in Ext. A-2 and that he put the signature in the office of P.W. 2 thedocument writer and that in his presence P.W. 5 signed Ext. A-2. It is also theadmitted versions of PWs 3 and 5 that the Sub Registrar who has beenexamined as P.W. 4 put questions to Chirootty the testatrix regarding thecontents of Ext. A-2 Will and only after understanding the nature and contentsof the Will she admitted it to be correct and then, she put the signature beforethe Sub Registrar. The above oral testimonies of PWs 3 and 5 before the SubRegistrar (P.W. 4) are squarely corroborated by the oral testimony of the SubRegistrar. 6. According to plaintiff, P.W. 2 is a document writer who is the scribe of Ext,A-2 Will also and in his office Ext. A-2 Will was prepared on the instruction ofChirootty. P. VV. 2 in this aspect would speak that Chirootty had come to hisoffice and gave particulars to write the Will, that at that time chirootty was inher sound mental condition, that she signed the Will in his presence and in thepresence of the attesting witnesses PWs 3 and 5 that PWs 3 and 5 alsosigned the Will in the presence of Chirootty and that each other have seen theother signing Ext. A-2. Further, though PWs 3 and 5 had given contradictoryversions in their evidence so far as the execution of the Will is concerned, theirevidence are reliable and acceptable. 7. A-2. Further, though PWs 3 and 5 had given contradictoryversions in their evidence so far as the execution of the Will is concerned, theirevidence are reliable and acceptable. 7. The Trial Court on examining the evidences of PWs 2 to 4 and 5 in such amanner, as I have discussed above, came to a conclusion that the Will wasexecuted by Chirootty. However, the next stand taken by the Trial Court wouldbe quite contrary to the above conclusion arrived at by the Trial Court in theexecution of the Will. To put it, in short, the second stand taken by the TrialCourt would be that there are suspicious circumstances surroundings theexecution of the Will and those suspicious circumstanced would clinchingly goto show that Ext. A-2 Will was the executed by the deceased Chirootty on herown free that and volition. Suspicious circumstances, surrounding theexecution of the Will, according to the Trial Court are characterised as follows:An examination of the evidence of P.W. 6 the husband of the plaintiff wouldevince that he himself had taken Chirootty to the scribe's office for preparingExt. A-2 Will and however P.W. 6 is not admitting this fact. Prior to theexecution of Ext. A-2 Will Ext. A-3 Will was executed on 17th December 1974by which no property was given to the defendants, namely, the children ofKumaran and the entire properties under Ext. A-3 Will were bequeathed to theplaintiff alone who is the daughter of Chirootty. When no property had beengiven to the children of the son of the deceased Chirootty under Ext. A-3 Will,after some times wisdom had dawned in the mind of P.W. 6 to create Ext. A-2Will by which a meagre portion of land was given to the children of Kumaran.The inadequate extent of property given to the children of Kumarandefendants herein is a strong suspicious circumstance in questioning thegenuineness of Ext. A-2 Will. The execution of Ext. A-3 Will and thereafter theexecution of Ext. A-2 Will came into existence only by the prominent partplayed by P.W. 6 the husband of the plaintiff. The above circumstances wouldindicate that the testatrix was influenced by P.W. 6 in the execution of bothExts. A-2 and A-3 Wills. The plaintiff did not even admit that her mother wastaken to the scribe's office by her husband P.W. 6. Thus these circumstanceswould go to show that by exercising undue influence on the testatrix, P.W. 6got Ext. A-2 Will executed. The above circumstances wouldindicate that the testatrix was influenced by P.W. 6 in the execution of bothExts. A-2 and A-3 Wills. The plaintiff did not even admit that her mother wastaken to the scribe's office by her husband P.W. 6. Thus these circumstanceswould go to show that by exercising undue influence on the testatrix, P.W. 6got Ext. A-2 Will executed. The above circumstances are considered by theTrial Court as suspicious surrounding the execution of the Will and thereforeits conclusion was, as pointed out above, the Will was not executed by thetestatrix on her own free will and volition. 8. The material point the Trial Court has forgotten would be that it is not apleading of the defendants that the Will was executed by undue influenceexercised by P.W. 6. In fact, there is also no evidence to this effect on, theside of the defendants that the testatrix was subjected to fraud and undueinfluence exercised by P.W. 6. When that be the real situation, I do notunderstand as to why the Trial Court came to the conclusion that P.W. 6played a vital role in the execution of the Will by exercising fraud and undueinfluence on the testatrix. Needless to say that P.W. 6 being the husband ofthe plaintiff the beneficiary and son inlaw of the testatrix, naturally would take avital role not only in the execution of the Will but also in the welfare of thefamily members including the defendants who are none other than the childrenof his deceased brother inlaw Kumaran. No doubt, a larger extent of propertyhas been bequeathed to the plaintiff and a smaller extent has been given tothe defendants as per Ext. A-2. That alone is not a ground to make asuspicious circumstance in the execution of the Will. The allotment of sharingof the properties by a testatrix to the beneficiaries under a Will wholelydepends upon the intention of the testatrix and nobody can question herintention when there are ample evidence and circumstances to show that herintention was to give a major portion to one party and a lessor portion to theother party. It is also seen in evidence that four years after the execution ofExt. A-2 Will the testatrix had passed away. Practically, there is no evidencethat the testatrix was not in a sound state of disposing mind at the time ofexecution of Ext. It is also seen in evidence that four years after the execution ofExt. A-2 Will the testatrix had passed away. Practically, there is no evidencethat the testatrix was not in a sound state of disposing mind at the time ofexecution of Ext. A-2 Will or she was laid up with any illness or she wassuffering from Rheumatism. When the above circumstances, in fact, areexamined on the basis of the principles laid down by the Supreme Courtstated supra it is quite clear that those circumstances are not at all suspicioussurrounding the execution of the Will or they are not sufficient to hold that thetestatrix was not in a sound state of mind at the time of the execution of Ext.A-2 Will. The Trial Court, as I have pointed out above, holding that the abovecircumstances are suspicious, came to the conclusion that the Will is not afree Will of the testatrix. And this aspect alone has been urged before thelower appellate court by both the sides for consideration. 9. The lower appellate court examined the evidence of PWs 3 and 5 inrespect of the attestation as well as in respect of the signature of the testatrixfound in Ext. A-2 Will, and concurred with the finding of the Trial Court that theexecution of Ext. A-2 has been established by the plaintiff. So far as the contrafinding in respect of the volition and free will of the testatrix is concerned, thefirst appellate court discussed the circumstances which the Trial Court hasheld suspicious circumstances, and came to a conclusion that those are all notat all suspicious circumstances surrounding the execution of the Will in view ofthe settled principles as well as the oral evidence available on record. As Ihave pointed out above, there is no pleading nor is there any evidence to theeffect that P.W. 6 the husband of the plaintiff exercised undue influence andfraud on the testatrix (Chirootty) in the execution of Ext. A-2 Will. Further, P.W.6 is none other than the son inlaw of Chirootty and the husband of the plaintiffwho is none other than the daughter of Chirooty. The defendants are alsoclosely related to P.W. 6, that is to say, they are the children of the deceasedbrother of his wife the plaintiff. There is nothing to show that after the demiseof Kumaran the only son of Chirootty she was mentally upset and she was notin a sound state of disposing mind. The defendants are alsoclosely related to P.W. 6, that is to say, they are the children of the deceasedbrother of his wife the plaintiff. There is nothing to show that after the demiseof Kumaran the only son of Chirootty she was mentally upset and she was notin a sound state of disposing mind. As I noticed above, she had died fouryears after the execution of the Will. No material is found on record whenconsidering the long period of four years, that she had been ill of she had beenbed ridden, etc. When that be so, it is not proper on the part of the Trial Courtthat four years back namely, on the date of execution of Ext. A-2 Chirootty wasnot in a sound state of mind in executing the Will. A comparative and carefulstudy of the discussions of the Trial Court as well as the first appellate court onthe principles laid down by the Supreme Court, extracted above, would satisfyme that Ext. A-2 Will was executed by Chirootty on her own will and volitionand no undue influence or fraud had been played by P.W. 6 in the execution ofthe same. Therefore, both the points are answered in favour of the plaintiffrespondent and against the defendants appellants. 10. In so far as the reliefs for injunction is concerned it was submitted by thelearned Counsel appearing for the appellants that no issue regardingpossession was raised by the lower court and no finding was recorded in thisregard. But the submission of the learned Counsel appearing for the appellantis not correct because issue No. 3 is (point No. 3 herein) in respect ofinjunction. When a decree for injunction is sought for it is implied thatpossession has to be decided in answering the issue. In the instant case, nodoubt, both the courts below have not discussed anything about thepossession of the suit property. The suit filed for injunction must contain aspecific property with well defined boundaries. One exception would be that acoowner can ask for an order of injunction against other coowner, though theyare in joint possession of the property, when the other coowner commits wastein the property or acts detrimental to the improvement of the property. In theinstant case, the suit property is 63 cents which is item No. 1 under Ext. A-2Will. Plaintiff as P.W. 1 would depose that she has been in possession of theproperty right from the date of Ext. In theinstant case, the suit property is 63 cents which is item No. 1 under Ext. A-2Will. Plaintiff as P.W. 1 would depose that she has been in possession of theproperty right from the date of Ext. A-2 Will. D.W. 1 says that they are havingcommon interest over the suit property from the death of Chirootty and thatthey did not threaten. 11. When I examined the above oral evidence of both P.W. 1 and D.W. 1regarding possession and the other circumstances, I am of the view that thepossession of the plaintiff is established. The evidence of P.W. 1 also wouldgo to show that her possession was threatened by the defendants and theyalso attempted to trespass into the suit property. That portion of the evidenceof P.W. 1 was also not challenged in the cross examination. Therefore, I feelthat it has to be necessary held that plaintiff is in possession of the suitproperty and there is also threat from the side of the defendants and thereforethe plaintiff is entitled to get permanent injunction. This point is answered infavour of the respondent plaintiff. In the result, the Second Appeal standsdismissed confirming the Decree and Judgment of the lower appellate court.Consequently, the suit stands decreed. On account of the close relationship ofthe parties, I direct them to bear their own costs.