Joseph Thomas v. Joseph Joseph — 1999 DIGILAW 177 (KER)

JUDGMENT S. Marimuthu, J. 1. This appeal has arisen against the Judgment in O.S. No. 8 of 1985 on the file of the District Court, Kottayam. First defendant is the appellant. That suit was originally filed as O.P. No. 389 of 1984 for granting letters of administration to the plaintiff under S.278 of the Indian Succession Act in respect of the suit properties. Then, it was converted into the suit. 2. According to the plaintiff (first respondent herein), one Annamma alias Achamma, mother of the plaintiff and defendants 1 to 7 and sister of the 8th and 9th defendants and grandmother of defendants 10 to 15, was the owner of the plaint A schedule property measuring 1. acre 44 cents located in Sy. No. 231/13 of Vadayar Village, Kottayam District. She executed Ext. A-1 deed on 15th August 1981 bequeathing the plaint property, 1 acre and 44 cents, in favour of the plaintiff, with direction to the plaintiff, propounder of the Will to discharge some old debts and also to pay some cash to some of the defendants. The testatrix died on 25th February 3984 at the age of 77. The first defendant, appellant herein resisted the suit on the main ground that his mother was not in a sound state of disposing mind at the time of execution of the Will in question. She was, in fact, physically also ill and the plaintiff has brought the Will into existence with the collusion of the 4th defendant and it is a fabricated one. Therefore, no decree can be granted. The trial court on examining the contentions of both sides and also the evidence let in on their sides held that Ext. A-1 Will is proved and therefore, the plaintiff is entitled to the letters of administration as prayed for. 3. Learned counsel, Mr. V. P. Yohannan, appearing for the appellant contended that in. Ext. A-1 Will, the first defendant is excluded without any reason and the plaintiff alone is said to have been bequeathed to the entire immovable property and therefore, the disposal of the property under Ext. A-1 is unfair and unjust. In Ext. A-1, a direction is given to repay a loan, but that loan was already discharged. Ext. A-1 Will, the first defendant is excluded without any reason and the plaintiff alone is said to have been bequeathed to the entire immovable property and therefore, the disposal of the property under Ext. A-1 is unfair and unjust. In Ext. A-1, a direction is given to repay a loan, but that loan was already discharged. P.W. 2 the brother of the testatrix and the 8th defendant, the sister of the testatrix have attested the Will and no other independent witness or any neighbour of the testatrix has signed Ext. A-1 as attestor and no reason is also given by the plaintiff as to why the testatrix selected her close relatives who are residing far away from the residence of the testatrix, where the Will is said to have been executed. Thus, these are the suspicious circumstances surrounding the execution of the Will and those suspicious circumstances have not been dispelled by the plaintiff. 4. Learned counsel for the appellant further contended that P.W. 2 had deposed that he did not read the contents of the document, Ext. A-1 while he put his signature as an attestor and he came to the house of the testatrix only the testatrix put her last signature in the Will.Thus, the execution of Ext. A-1 has not been established as required by the provisions laid down in S.63 of the Indian Succession Act, 1925 and S.68 of the Indian Evidence Act, 1872. 5. On the other hand, Mr. Balakrisha Iyer, appearing for the plaintiff/respondent would contend that there is no unfair or unjust disposal of the property in the Will in question. There is sufficient evidence that the testatrix was hale and healthy and she was in a sound state of mind on the date of execution of the Will. There arc also documentary evidence to the effect that propounder has to discharge a loan even on the date of Ext. A-1 Will. There is no hard and fast rule that close relatives should not attest the Will and normally, the testator or testatrix will have confidence in his or her close relations while executing the Will and in that circumstances, close relations necessarily will have to attest the Will. In this case on hand, a comparison of the admitted signature of the testatrix found in Ext. B-1 with the disputed signatures in Ext. In this case on hand, a comparison of the admitted signature of the testatrix found in Ext. B-1 with the disputed signatures in Ext. A-1 would undoubtedly disclose that the signatures found in Ext. A-1 are those of the testatrix and in fact, the evidence was also so clear that the body of Ext. A-1 is in the handwriting of the testatrix herself. Further, there is nothing on record to show that undue influence was exercised by the plaintiff in getting the Will from his mother and in those circumstances, the conclusion of the trial court is perfectly correct. 6. On account of the above rival submissions of both the learned counsel, the only point that arises for consideration is whether Ext. A-1. Will is genuine or not? 7. Plaint A schedule property is immovable property as stated supra, measuring 1 acre 44 cents and plaint B schedule property is debts to be discharged by the plaintiff and also monies to be paid to the children and grandchildren as per Ext. A-1 - Will, to the tune of Rs. 1,35,000. Ext. B-1 dated 19th June 1969 is a partition deed entered into by Annamma Joseph, the testatrix of Ext. A-1 and her children who are the appellant and some among the respondents herein. In Ext. B-1, plaint A schedule property was allotted to the testatrix. Thereafter, on 21st June 1969, the testatrix and her five sons (four among whom are the parties to this litigation) entered into Ext. B-2 agreement. Ext. B-2 discloses a gold loan of Rs. 2,500, a loan of Rs. 2,000 payable to one Ouseph Varghese and Rs. 3,000 payable to Rosamma Joseph, 9th defendant in the present suit. Thus, on the date of Ext. B-2, there were debts payable by the testatrix and thereafter also, some debts were incurred by the testatrix as seen in Ext. A-1. 8. Learned counsel for the plaintiff/respondent in this context would submit that after Ext. B-2 also, debts were incurred by the testatrix and those debts have been specifically referred to in Ext. A-1, to be discharged by the propounder, the plaintiff. Therefore, now, I can look into Ext. A-1 with regard to the debts to be discharged by the propounder and the monies to be paid. As per Ext. A-1, the propounder has to pay a sum of Rs. 1,000 to the 2nd defendant, Rs. A-1, to be discharged by the propounder, the plaintiff. Therefore, now, I can look into Ext. A-1 with regard to the debts to be discharged by the propounder and the monies to be paid. As per Ext. A-1, the propounder has to pay a sum of Rs. 1,000 to the 2nd defendant, Rs. 3,000 to the 3rd defendant, Rs. 40,000 to' the 4th defendant, Rs. 2,000 to the 5th defendant, Rs. 5,000 to the 8th defendant, Rs. 3,000 to the 9th defendant (it is referred to in Ext. B-2 also), Rs. 1,500 to each defendants 10 and 11. and Rs. 1,000 to each defendants 12 to 15. In addition to it, Rs. 2,000 has to be paid to Ouseph Varkey, the servant of the house and also the gold loan of Rs. 53,250 has to be discharged and further, the for propounder of the Will is directed to spend Rs. 8,750 religious purpose and also Rs. 10,000 for the funeral expenses of the testatrix. Thus, a total sum of Rs. 1,35,000 comes, which is the B schedule in the plaint. 9. Learned counsel for the appellant would contend that Exts. A-3 to A-5 would show that the bank loan payable to the Kerala Cooperative Central Land Mortgage Bank, Kottayam was discharged even in the year 1979 and therefore there is no necessity to make a mention of the loan in Ext. A-1. But, according to the learned counsel for the first respondent, the loan to the Kerala Cooperative Central Land Mortgage Bank found in Exts. A-3 to A-5 is not included in the Will. The loan included in Ext. A-1 is a different loan of Rs. 53,000 and odd. 10. When I examined the above contentions of both the learned counsel for the gold loan referred to in Ext. A-1 and the loan found in Exts. A-3 to A-5, it is found clear that the discharged loan in Ext. A-5 is not found in Ext. A-1. The gold loan found in Ext. A-1 is different from Ext. A-5 loan. Hence the contention of the learned counsel for the appellant that the discharged loan is also included in Ext. A-1 is not correct and therefore, on that score, it could not be argued that it is a suspicious circumstance in the execution of Ext. A-1. A-1. The gold loan found in Ext. A-1 is different from Ext. A-5 loan. Hence the contention of the learned counsel for the appellant that the discharged loan is also included in Ext. A-1 is not correct and therefore, on that score, it could not be argued that it is a suspicious circumstance in the execution of Ext. A-1. Before examining the submissions of both the learned counsel, the statutory provision as well as the settled proposition of law in respect of the execution and attestation of the Will and also the suspicious circumstances surrounding the execution of the Will can be referred to hereunder. 11. S.63 of the Indian Succession Act reads as follows: "63. Execution of unprivileged Wills. Every testator, not being a soldier employed in aa expedition nor engaged in actual warfare or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules: (a) The testator shall sign or shall affix his marks to the Will, or it shall be signed 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 signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (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." 12. S.68 of the Indian Evidence Act reads thus: "68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive? S.68 of the Indian Evidence Act reads thus: "68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive? and subject to the process of the Court and capable of giving evidence." 13. In the decision reported in Narayanan Anandan v. R. Rakesh AIR 1995 Ker. 205 the principle laid down is that in the matter of constructing a Will the intention of the testator has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation. 14. In the decision reported in Kanwar Sain and others v. State and others AIR 1976 Delhi 11 the ratio of the Judgment is as follows: "While the overall burden of proving a Will lies on those who propound it, such burden is, in general, discharged by showing that the Will was duly executed and that the testator had testamentary capacity. On these matters being shown, those alleging undue influence must prove it. Undue influence cannot be presumed. It is not sufficient to show that the circumstances attending the execution are consistent with its having been procured by undue influence, it must be shown that they are inconsistent with any other hypothesis. There is no undue influence unless the testator if he could speak his wishes would say 'this is not my wish bat I must do it'." 15. In the decision reported in H. Venkatachala Iyengar v. B. N. Thimmajamma AIR 1959 SC 443 the Supreme Court has laid down as follows: "The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. S.67 and 68 of the Evidence Act are relevant for this purpose. S.67 and 68 of the Evidence Act are relevant for this purpose. Under S.67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his hand-writing, and for proving such a handwriting under S.45 and 47 of the Act, the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. S.68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, S.59 and 63 of the Indian Succession Act are also relevant. Thus the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by S.63 of the Indian Succession Act. As in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matter." 16. The Privy Council in Harmes v. Hinkson AIR 1946 P.C. 156 has laid down: "The burden of proving that the Will is the outcome of undue influence exercised on the testator is on those who attack the Will, either as a whole or in part. It is legitimate to urge upon a man whose condition is prevarious the desirability of making a Will and the person doing so cannot be said to have exercised undue influence." 17. The Supreme Court in the decision reported in Jaswant Kaur v. Amrit Kaur AIR 1977 SC 74 has laid down thus: "In cases where the execution of a Will is shrouded in suspicion, its proof ceases to be a simplelis between the plaintiff and the defendant. The Supreme Court in the decision reported in Jaswant Kaur v. Amrit Kaur AIR 1977 SC 74 has laid down thus: "In cases where the execution of a Will is shrouded in suspicion, its proof ceases to be a simplelis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and than 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." 18. In a decision reported in P. Subramanian v. Ramachandran AIR 1996 Kerala 64, this Court has held that in the absence of initial evidence on the part of the plaintiff who disputed the genuineness of the "Will, the propounder of the Will need only prove the execution of the Will. 19. The Punjab and Haiyana High Court in Charan Singh v. Balwant Singh AIR 1975 Punjab and Haryana 179 held as follows: "As a general rule, until the contrary is established, a testator is presumed to be sane and to have a mental capacity to make a valid Will. No presumption of testamentary in capacity is permissible by mere fact that the testator was advanced in years (in the instant case about 80 years old)." 20. The Supreme Court in Rabindra Nath Mukherjee v. Panchanan Banerjee AIR 1995 SC 1684 has laid down the following as suspicious circumstances: "3. A perusal of the two Impugned Judgments shows that the following were regarded as suspicious circumstances: (1) Deprivation of the natural heirs by the testatrix. (2) Identification of the testatrix before the Sub Registrar by an Advocate of Calcutta who had acted as a lawyer of one of the executors in some cases. (3) The witnesses to the documents were interested in the appellants. (4) Active part played by one Subodh, a close relation of Rabindra, one of the executors, in getting execution of the Will. He has been described as ubiquitous." 21. (3) The witnesses to the documents were interested in the appellants. (4) Active part played by one Subodh, a close relation of Rabindra, one of the executors, in getting execution of the Will. He has been described as ubiquitous." 21. The Supreme Court in yet another decision reported in P. P. K. Gopalan Nambiar v. P.P. K. Balakrishnan Nambiar AIR 1995 SC 1852 has held that it is the duty of the propounder to prove the Will and to remove all the suspected features. But there must be real, germane and valid suspicious features and not fantasy of the doubting mind. 22. The Supreme Court in the decision reported in V. S. Mane v. R. V. Ganeshkar AIR 1995 SC 2086 has held the following as suspicious circumstances: "(a) Propounder taking prominent part in execution of Will which confers substantial benefits on him; (b) Shaky signature; (c) Feeble mind which is likely to be influence. (d) Unfair and unjust disposal of property." 23. In a case reported in Purnima Debi v. Khagendra Narayan Deb AIR 1962 SC 567 , the Supreme Court has laid down that a mere registration of the Will does not by itself sufficient to dispel all the suspicious circumstances and the suspicious circumstances must be properly to the satisfaction of the Court. 24. On the above proposition of law, both statutory and settled, I will now discuss the contentions of both the learned counsel. P.W. 2 is a brother of the testatrix and he is residing at a distance of 40 kms. away from the residence of the testatrix and 8th defendant who is also one of the attestors resides at a distance of 25 kms. away from the testatrix. In this juncture, the arguments advanced by Mr. Yohannan, learned counsel for the appellant would be that when there are other close relations near the house of the testatrix practically, there is no necessity to bring P.W. 2 and 8th defendant for attesting the will and that situation leads to a suspicious circumstance. On the other hand, the argument of the learned counsel, Mr. Balakrishna Iyer, will be that a reading of the evidence of P.W. 2 and also two letter's written by him to P. J. Joseph, the first defendant/appellant marked as Exts. On the other hand, the argument of the learned counsel, Mr. Balakrishna Iyer, will be that a reading of the evidence of P.W. 2 and also two letter's written by him to P. J. Joseph, the first defendant/appellant marked as Exts. B-3 and B-4 dated 22nd March 1984 and 28th February 1984 respectively would evince that since P.W. 2 is the maternal uncle of the appellant, [he had to necessarily act in the interest of the family and therefore, the distance between his residence and the residence of the testatrix where the Will was executed, is immaterial and that never amounts to a suspicious circumstance. 25. When I examined the submissions of both the learned counsel on the basis of the proposition of law extracted above, I feel that the participation of P.W. 2 in settling the dispute in the family as well as in the execution of the Will do not throw a doubt on the case of the plaintiff with reference to the execution of the will. The two letters marked as Exts. B-3 and B-4 would go to show that the other disputes barring Ext. A-1 will had to be settled by P.W. 2, being the uncle of the appellant and some of the defendants/respondents and that is the normal and natural thing expected from P.W. 2. In Ext. A-1 Will, as I have noted above, the propounder, the plaintiff had to pay a sum of Rs. 1,35,000. The children of the appellant who are 12th and 13th defendants have been each provided a sum of Rs. 1,000. So that is the benefit under the Will to the children of the appellant. Hence the argument on the side of the appellant that he was completely excluded in the Will is not correct. The further argument that there is unfair and unjust disposal of the property also could not be accepted in view of the fact stated above that the propounder, first respondent has to pay Rs. 1,35,000. The discharging of the loan and the testatrix's wish of giving cash to her children and grandchildren found in Ext. A-1 had compelled the testatrix to execute the Will. Such circumstances could not be in any way said that undue influence was exercised by the first respondent/plaintiff on his mother. 1,35,000. The discharging of the loan and the testatrix's wish of giving cash to her children and grandchildren found in Ext. A-1 had compelled the testatrix to execute the Will. Such circumstances could not be in any way said that undue influence was exercised by the first respondent/plaintiff on his mother. As rightly argued by the learned counsel for the first respondent/plaintiff if provisions are not made in the Will to discharge the loan, sometimes, the property might have been brought into sale by the creditors. Therefore, to save the properly also, that is to say the property being held by the family, necessity had arised to execute the Will. That also seems to be one of the good circumstances. As I have pointed out above, P.W. 2 and his sister were not at all disqualified to be the attestors of the Will. In fact, they are competent persons to attest the Will executed by their sister. Practically, there is no evidence to support the contention of the appellant that there was a connivance between the plaintiff and 4th defendant. There is no rule of law that the attestors must be present when the body of a Will is written. It is sufficient when the attestors would say that they saw the executant of the Will putting the signature on it and the executant saw them attesting the Will. As per the statutory provisions in the Indian Evidence Act and the Indian Succession Act, at least one of the attestors could be examined. Rightly, plaintiff has examined P.W. 2 and P.W. 2 has deposed that when he went there, the testatrix was putting the signature on the last page and his evidence is as follows: MALAYALAM There was another attack by the learned counsel for the appellant on the contents of the document. Ext. A-1 Will contains, as pointed out above, the debts and her wish of giving monies to her kith and kin. Such contentions, do not in any way affect the genuineness of the Will. In support of the evidence of P.W. 2, P.W.1 also would speak the execution of the Will and also the attestation, The other attestor is also a sister of the testatrix and therefore, there arose no necessity to examine her, particularly when the evidence of P.W. 2 is reliable and acceptable. Ext. B-1 partition deed and Ext. In support of the evidence of P.W. 2, P.W.1 also would speak the execution of the Will and also the attestation, The other attestor is also a sister of the testatrix and therefore, there arose no necessity to examine her, particularly when the evidence of P.W. 2 is reliable and acceptable. Ext. B-1 partition deed and Ext. B-2 agreement contain the signature of the testatrix, Annamma Joseph. A comparison of the signatures found in Exts. B-l and B-2 with the disputed signatures in Ext. A-1, in my view, would satisfy that they have been put by one and the same person. In other words, the signatures found in Ext. A-1 are similar to the signatures found in Exts. B-l, and B-2. 26. Yet another submission of the learned counsel for the appellant would be that a lady of 74 years old could not write so many pages in Ext. A-1 and that also leads to a suspicion. It is not the case of the appellant that his mother did not know write. It is also to be borne in mind that she used to put her signature in English. In Exts. B-1 and B-2, she has written her name in a styled manner in English. Her signature in English is also found in Ext. A-1. The argument that because of her age, she could not write the contents of Ext. A-1 could not be accepted. No witness was examined by the appellant to rebut the case of the plaintiff that his mother could not write in such a manner in Malayalam as found in Ext. A-1. On the other hand, as I have pointed out above, it is the testimony of the witnesses on the plaintiff's side that the testatrix has written the contents of Ext. A-1. In this situation, I am fully satisfied to support the finding of the court below that Ext. A-1 was written by the testatrix in her own hand writing. The evidence of P.W.2 that he did not read the contents of Ext. A-1 does not in any way affect the case of the plaintiff. 27. It is also one of the contentions advanced on the appellant's side that testatrix was physically and mentally ill and therefore, she could not have written Ext. A-1 Will. The evidence of P.W.2 that he did not read the contents of Ext. A-1 does not in any way affect the case of the plaintiff. 27. It is also one of the contentions advanced on the appellant's side that testatrix was physically and mentally ill and therefore, she could not have written Ext. A-1 Will. Nothing has been placed in support of this contention that she was ill and bed-ridden on the date of the execution of Ext. A-1 Will. On the other hand, D.W. 1 would depose that on the date of execution of the Will, his mother had gone to the church. That is an indicative to show that she was in a mentally and physically fit condition. 28. As argued by the learned counsel for the plaintiff it can also be said that the plaintiff alone is not the beneficiary under the Will. And the other legal representatives of the testatrix were also the beneficiaries of the Will. In the above situation, the contention that the other children were completely excluded without any reason in the Will could not be correct. 29. On account of the foregoing reasons, I feel that the plaintiff has established his case and the trial court also on examining the evidence came to a correct conclusion. In the result, the point is answered in favour of the plaintiff/first respondent that Ext. A-1, Will is a genuine one. The appeal stands dismissed.