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1998 DIGILAW 87 (KER)

Madhavan v. Karthiani

1998-02-23

S.MARIMUTHU

body1998
JUDGMENT S. Marimuthu, J. 1. The first defendant is the appellant. Plaintiffs 1 to 3 and the defendants 3 to11 are the respondents. The second defendant died during the pendency ofthe suit in the Trial Court and her legal representatives are as defendants 7 to11. This appeal is filed against the Judgment of the Principal Sub Judge,Kottayam delivered in A. S. No. 64 of 1993, wherein the Judgment of the TrialCourt, which passed a preliminary decree for partition in O.S. No. 795 of 1.989(Principal Munsiff, Kottayam), was confirmed. 2. The Plaintiffs filed the suit before the Munsiff on the following grounds:The suit property measuring 1 acre 19 cents originally belonged to the motherof plaintiffs by name Kunju Pennu. On the death of Kunju Pennu, the plaintiffsand the defendants 1 and 2 obtained the property by succession. Thedeceased second defendant is the sister of plaintiffs as well as the firstdefendant. The above Kunju Pennu died on 10th July 1989. The plaintiffs areentitled to 1/5 share each in the suit property. The first defendant is entitled to1/5 share and the defendants 7 to 11 who are the legal representatives of thesecond defendant together entitled to 1/5 share. There are buildings in itemNo. 1 in which also plaintiffs are entitled to 3/4 share. The plaint item No. 1 aspointed out above is 1 acre 19 cents and the plaint items 2 to 5 are thebuildings. Since the first defendant was not amenable for a partition, the suitwas filed against the respondents defendants for partition, mesne profits etc. 3. The defendants 1, 3 and 4 filed a common written statement contendingthat the suit is not maintainable. The suit properties exclusively belonged tothe first defendant and he is in possession and enjoyment thereof. The motherof the plaintiffs and the defendants 1 and 2 already executed a Will deed infavour of the first defendant on 2nd January 1970. Item Nos. 2 and 3 wereconstructed by the defendants 3 and 4 and they are residing there.Defendants 5 and 6 are residing in item No. 5 with the consent of the firstdefendant. During the marriages of the sisters namely, the second defendantand plaintiffs ornaments and dowry were given by the first defendant.Therefore the plaintiffs and the second defendant have no right over the plaintitems. Therefore the suit has to be dismissed on account of the Will. 4. In the Trial Court Exts. B-1 to B-8 were marked. During the marriages of the sisters namely, the second defendantand plaintiffs ornaments and dowry were given by the first defendant.Therefore the plaintiffs and the second defendant have no right over the plaintitems. Therefore the suit has to be dismissed on account of the Will. 4. In the Trial Court Exts. B-1 to B-8 were marked. On the plaintiffs' side thefirst plaintiff was examined as PW 1. On the defendants' side the firstdefendant and one Scaria were examined as PWs 1 and 2. The PrincipalMunsiff, Kottayam on examining the evidence adduced on both sides passeda preliminary decree for partition that the plaintiffs are entitled to 3/5 share inthe plaint schedule properties and also for recovery of the same. It alsodecreed that the first defendant is entitled to only 1/5 share and thedefendants 7 to 11 being the legal heirs of the deceased second defendantare together entitled to 1/5 share, leaving mesne profits to be decided in thefinal decree proceedings. Challenging the above Judgment of the PrincipalMunsiff, Kottayam, the first defendant filed an appeal before the Principal SubJudge, Kottayam as A.S. No. 64/93, as noted above. 5. The Principal Sub Judge, on examining the evidence and also theJudgment of the Trial Court, concurred with the Judgment and Decree passedby the Trial Court and ultimately dismissed the appeal. The present appealbefore this court is filed by the first defendant as appellant questioning theJudgment of the lower Appellate Court. 6. The only point that was urged before this court is whether Ext. B1 dated2nd January 1970 is a valid and genuine Will executed by the mother of theplaintiffs and the defendants 1 and 2. If Ext. B1 Will is established by theappellant in accordance with the statutory provisions of law, as well as thesettled proposition of law then the plaintiffs are not to entitled to claim share byway of partition. On the other hand, if the appellant fails to establish Ext. B1 heis entitled to only 1/5 share in the suit items. Before examining Ext. B1 and thecontents thereon, I feel it is better to extract hereunder the provisions of law,both statutory and settled in respect of proof a Will. S.67 and S.68 of theIndian Evidence Act, 1872 read as follows: "67. B1 heis entitled to only 1/5 share in the suit items. Before examining Ext. B1 and thecontents thereon, I feel it is better to extract hereunder the provisions of law,both statutory and settled in respect of proof a Will. S.67 and S.68 of theIndian Evidence Act, 1872 read as follows: "67. Proof of signature and handwriting of persons alleged to have signed orwritten document produced: If a document is alleged to be signed or to havebeen written wholly or in part by any person, the signature or the handwritingof so much of the document as is alleged to be in that person's handwritingmust be proved to be in his handwriting. 68. Proof of execution of document required by law to be attested: If adocument is required by law to be attested, it shall not be used as evidenceuntil one attesting witness at least has been called for the purpose of provingits execution, if there be an attesting witness alive, and subject to the processof the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof ofthe execution of any document, not being a Will, which has been registered inaccordance with the provisions of the Indian Registration Act, XVI of 1908unless its execution by the person by whom it purports to have been executedis specifically denied." S.63 of the Indian Succession Act, 1925 read as follows: "63. Execution of unprivileged Wills; Every testator, not being a soldieremployed in an expedition nor engaged in actual warfare, (or an airman soemployed or engaged) or a mariner at sea, shall execute his Will according tothe following rules:- (a) The testator shall sign or shall affix his marks to the Will, or it shall besigned by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signingfor him, shall be so placed that it shall appear that it was intended, thereby togive effect to the writing as a Will. (b) The signature or mark of the testator, or the signature of the person signingfor him, shall be so placed that it shall appear that it was intended, thereby togive effect to the writing as a Will. (c) The Will shall be attested by two or more witnesses, each of whom hasseen the testator sign or affix his mark to the Will or has seen some otherperson sign the Will, in the presence and by the direction of the testator, ofhas received from the testator a personal acknowledgment of his signature ormark, or of the signature of such other person; and each of the witnesses shallsign the Will in the presence of the testator, but it shall not be necessary thatmore than one witness be present at the same time, and no particular form ofattestation shall be necessary." Both the learned counsel appearing for the appellant and the contestingrespondents submitted the following principles laid down for proving a Will. In AIR 1953 Cal. 462 (Satipada Chatterjee v. Annakali Debya) it is held as follows: "The question whether a scribe can be regarded as an attesting witness has tobe gathered from the circumstances of each case, the main test being whetherthe scribe signed the document with the intention of attesting the signature ofthe executant. The mere fact that the scribe wrote out the entire Will as alsothe endorsement 'Ishadi Lekhak' does not necessarily lead to the conclusionthat he has signed before the testator." In AIR 1969 SC 1147 (M. L. Abdul Jabbar Sahib v. H. Venkata Sastri andSons and others etc.) the Supreme Court has laid down the followingprinciple: "If a person puts his signature on the document for some other purpose, e.g.to certify that he is a scribe or an identifier or a registering officer, he is not anattesting witness." In AIR 1977 Ker. 41 , in a case Kunhamina Umma and others v. SpecialTahsildar and others, this court has laid down the following principle: ''the certificate endorsed on a register deed by the registering officer is arelevant piece of evidence for proving the execution. 41 , in a case Kunhamina Umma and others v. SpecialTahsildar and others, this court has laid down the following principle: ''the certificate endorsed on a register deed by the registering officer is arelevant piece of evidence for proving the execution. It is also held that theremust be specific pleading either in the statement or in the evidence of theparty with reference to the execution of a document." In AIR 1982 SC 133 (Smt. Indu Bala Bose and others v. Manindra Chandra Bose and another), the Supreme Court has held as follows: "The mode of proving a Will does not ordinarily differ from that of proving anyother document except to the special requirement of attestation prescribed inthe case of a Will by S.63 of the Succession Act. The onus of proving the Willis on 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 of the Will as genuine." 7. Now, on the above principle of law both statutory and settled, I can lookinto the evidence adduced by both the sides to record a finding whether Ext.B1 Will is valid and genuine. A reading of Ext. B1 would go to show that thetestatrix at the time of execution of Ext. B1 was 72 years old, that the propertymeasuring 1 acre 19 cents with a building thereon has been bequeathed bythe testatrix to her son, the appellant, the propounder of the Will and that afterher death the propounder of the Will, namely, the appellant shall pay Rs. 250to each of his four sisters including the three plaintiffs herein. The Will hasbeen admittedly written by DW 2, Scaria. The submissions of the learnedcounsel appearing for the appellant was that the first attestor in Ext. B1,namely, Gopalakrishna Pillai, had already died and the scribe Scaria hassigned Ext. B1 in the capacity as a scribe as well as in the capacity of anattestor to the Will. The Will hasbeen admittedly written by DW 2, Scaria. The submissions of the learnedcounsel appearing for the appellant was that the first attestor in Ext. B1,namely, Gopalakrishna Pillai, had already died and the scribe Scaria hassigned Ext. B1 in the capacity as a scribe as well as in the capacity of anattestor to the Will. Therefore, the examination of Scaria as DW 2 on theappellants' side is sufficient to satisfy the requirements contemplated underS.68 of the Indian Evidence Act and under S.63 of the Indian Succession Actand the above settled law that the Will should be attested by not less than 2witnesses and at least one of the attesting witnesses should be examined. Onthe other hand, the learned counsel appearing for the respondents (plaintiffs)submitted that DW 2 has signed Ext. B1 only as a scribe and he had nointention at all to be an attesting witness to Ext. B1 while putting his signaturethereon. And, in the instant case, two attestors are said to have signed Ext. B1and no attesting witness has been examined to prove Ext. B1 and thereforethe first defendant has miserably failed to discharge his burden of proving Ext.B1 alleged Will. Therefore, he is entitled to only 1/5 share in. the suit items. 8. In support of the above submission of the learned counsel for the appellanthe drew my attention to the body of Ext. B1 as welt as the evidence of DW 2.In otherwords, the submission of the learned counsel for the appellant wouldbe that due execution and due attestation of Ext. B1 have been established bythe appellant. Now I will examine the above submission of the learned counselappearing for the appellant. So far as the execution of a Will is concerned, nodoubt, Supreme Court has held that the endorsements made by the Registrarat the time of registering the document amounts to some proof of execution.However, that alone is not sufficient for due execution of the document. Now Iwill look into Ext. B1 which is written as follows: XXX On the above contents in Malayalam, the learned counsel appearing for theappellant submitted that it is obviously clear that the DW 2 has put hissignature in Ext. B1, in both the capacities as scribe and as attestor to Ext. B1.As per the principles laid down in the above rulings a scribe can sign as anattestor also to the Will. B1, in both the capacities as scribe and as attestor to Ext. B1.As per the principles laid down in the above rulings a scribe can sign as anattestor also to the Will. But it is the duty of the propounder to establish thatscribe had the intention of being an attestor also to the Will while puttinghis signature therein. The above writings, as I have pointed out above,according to the learned counsel appearing for the appellant would satisfy theprinciple of law that DW 2 has put his signature in his capacity as a scribe aswell as an attestor. He also relies upon No. 1, and No. 2 written in Ext. B1. Asagainst the above submission of the learned counsel appearing for theappellant, the learned counsel appearing for the respondents plaintiffs wouldsubmit that word used in Ext. B1 is That is to say there are two attestors. The writing No. 2 as well as the writingextracted above ty/Ra6iy eek do not amount to attestation. On the other hand the scribe DW 2 had theintention of putting his signature only as a scribe and not as an attestor to Ext. 9. B1. In support of his argument, the learned counsel appearing for therespondents further drew my attention to the oral testimony given by DW 2.DW 2 in his oral evidence states as follows: XXX 10. The above evidence of DW 2 is to the effect that in his presence twowitnesses signed the document. When the above evidence of DW 2 iscarefully examined with the signature and endorsement of the DW 2 in Ext.B1, it is clear that there were two attesting witnesses who had signed Ext. B1and DW 2 is not an attestor and he has put his signature in Ext. B1 only in thecapacity as a scribe. Therefore the argument of the learned counsel appearingfor the appellant that DW 2 put his signature in the Ext. B1 Will in his capacityas a scribe and as an attestor is not correct. It is true, he has put his signatureonly as a scribe. For proving the execution of the Ext. B1 document, I feel theevidence of DW 1. and DW 2 are sufficient. On the other hand the attestationof Ext. B1 is not established as required by the statutory and settledpropositions of law which I have extracted above. It is true, he has put his signatureonly as a scribe. For proving the execution of the Ext. B1 document, I feel theevidence of DW 1. and DW 2 are sufficient. On the other hand the attestationof Ext. B1 is not established as required by the statutory and settledpropositions of law which I have extracted above. Both the courts below, ongoing through the evidence as well as the settled and statutory propositions oflaw, have rendered concurrent findings that Ext. B1 attestation is notestablished by the appellant. Learned counsel appearing for the respondentsfurther submitted that there is strong and suspicious circumstances withregard to Ext. B1. That is to say, according to him, no sister will agree toreceive Rs. 250 during that period for her share in the suit property measuring1 acre and 19 cents. Further he submitted that when the mother had equalamount of affection towards her four daughters and son, she would notexecute a Will bequeathing the entire suit property to the son and directing himto pay a sum of Rs. 250 to each one of her daughters towards their shares inthe suit property. That argument as per the settled principle of law may not becorrect. The discretion in bequeathing properties to the children purelydepends upon the intention of the executant of the Will. Being a mother, in thepresent case on hand she can give larger extent of property to one of herchildren and smaller portions of property to other children. As I have statedabove, the attestation of Ext. B1 is not established by the appellant. Hence,the findings of both the courts below with regard to the attestation of Ext. B1are perfectly correct and this court need not interfere into those findings.Therefore points raised above are answered against the appellant. Thelearned counsel appearing for the appellant also submitted - that there is nospecific denial regarding the execution of the Will in the plaint as required inR.9, O.8 CPC. O.8, R.9 is as follows: "9. Subsequent pleadings. No pleading subsequent to the written statement ofa defendant other than by way of defence to a set off (or counter claim) shallbe presented except by the leave of the court and upon such terms as theCourt thinks fit, 'but the Court may at any time require a written statement oradditional written statement from any of the parties and fix a time forpresenting the same." 11. A mere reading of the above Rule would evince that it is not applicable to thepresent case. However, only in the reply notice sent by the first defendant on30th September 1989, he has stated about the Will and the suit as pointed outabove was filed on 27th September 1989. Only after filing the suit the replyhas been, received by the plaintiffs respondents from the appellant (sent byhis counsel). It is therefore, quite clear that on account of the abovecircumstance specific denial with reference to the Will could not be made bythe plaintiffs respondents in the plaint. However, sufficient oral evidence theyhave let in with reference to not proving due attestation of the document.Hence, as I have pointed out above, specific denial of the Will in the plaint inno way would affect the case of the respondents. The appellant being apropounder of the Will lias to establish both the due execution and dueattestation of the Will in this case. As I have noted above, he has failed toprove attestation. 12. In the result, the appeal fails and accordingly it is dismissed confirming theconcurrent findings of both the courts below. The parties will bear their own costs.