George v. Elizabeth — 1999 DIGILAW 449 (KER)

JUDGMENT R. Rajendra Babu, J. 1. The third defendant in O.S.No.9/88 on the file of the District Court, Ernakulam is the appellant. The petition filed by the 1st respondent for the issue of Letters of Administration was converted into a suit O.S.No.9/88. The court below decreed the suit. Aggrieved by the above judgment and decree, the third defendant preferred this appeal. 2. The allegations in the plaint are the following: -Chacko, father of the plaintiff died on 8-1-1977. He had executed a will on 31-10-75 and got it registered and the plaintiff was one of the legatees under the will. The first defendant was the wife of deceased Chacko and plaintiff and other defendants were the children. Ext. A1 will produced before the court was the last testament of the deceased and no executor was appointed in the will. Hence plaintiff, being one of the legatees, applied for the issue of Letters of Administration. 3. Defendants 1, 4 and 6 to 9 appeared through counsel, but did not file any written statement. The third defendant alone contested the matter by filing a written statement. Third defendant contended that the will had come into existence due to the undue influence of the plaintiff who was residing with the deceased at the time of his death and the testator had no free mind to execute the will. The third defendant was not aware of the existence of any will executed by his father. The terms and conditions of the will were unnatural and it was executed under the undue influence of the plaintiff with a view to get a substantial portion of the property. No property was bequeathed to the wife of the testator and also to the three eldest sons viz. defendants 3, 5 and 6. The legacy of defendants 7 and 8 when compared with that of the plaintiff was very little. Normally a Christian daughter would be married off at the expense of her father and immovable properties would be given to the sons. two acres and 45 cents of properties allotted to the plaintiff was given in possession to the 3rd defendant by the testator in 1965 for making improvements in the property and the above property is now allotted to the plaintiff. It would reveal that the testator was not conscious about the acts. two acres and 45 cents of properties allotted to the plaintiff was given in possession to the 3rd defendant by the testator in 1965 for making improvements in the property and the above property is now allotted to the plaintiff. It would reveal that the testator was not conscious about the acts. There was only one attesting witness to the will and as such it was not a legally executed will. 4. P.Ws. 1 and 2 were examined and Ext. A1 was marked on the side of the plaintiff. DWs 1 and 2 were examined on the side of the third defendant. 5. The following issues were raised by the trial court: "1. Whether a will was executed by deceased Varkey Chacko on 31-10-1975? 2. Whether the will is a valid one and if it is not vitiated by any one of the grounds stated in the written statement? 3. Whether the plaintiff is entitled to get Letters of Administration of the entire property scheduled to the petition? 4. Reliefs and costs?" 6. The trial court found that the will was executed by the testator out of his free will and it was not vitiated by any of the grounds raised by the 3rd defendant and the plaintiff was entitled to the Letters of Administration prayed for and accordingly, suit was decreed. 7. Learned counsel for the appellant and the 1st respondent were heard. 8. Chacko, the husband of 1st defendant and father of plaintiff and defendants 2 to 9 executed Ext. A1 will on 31-10-1975 and got it registered and he died on 8-1-77. The plaintiff, who was one of the legatees filed the suit for issue of Letters of Administration. Defendants 2 and 5 are the sisters of the plaintiff and the defendants 3, 4, 6, 7, 8 and 9 are brothers. The suit was resisted by the third defendant (appellant) alone. The mother, and the other brothers and sisters did not contest the matter and in fact, they have conceded in granting Letters of Administration, as prayed for. 9. One of the arguments advanced by the learned counsel for the appellant was that the will was not attested by two witnesses. The last page of, Ext. A1 would reveal that two persons have signed in Ext. A1 as attestors. 9. One of the arguments advanced by the learned counsel for the appellant was that the will was not attested by two witnesses. The last page of, Ext. A1 would reveal that two persons have signed in Ext. A1 as attestors. The first attestor is one Poulose and 2nd attestor is Aprem Cathanar George, the person who prepared the will. The above said George was examined as PW 1. He had given evidence that he signed as an attestor to the document as well as the person who prepared the document. It was argued by the learned counsel for the appellant that George signed not as an attestor but only as the person who prepared the document and before his name the figure 2' subsequently written making an alteration in the document to make him also an attestor. In Ext. A1 the name of the first attestor Poulose is noted as witness No. 1'. The above writing of witness No. 1 would make it clear that they intended to have another attestor and the other person who signed was witness No. 2'. This aspect become more explicit when we see the previous page (page No. 8 of Ext. A1) where it was written and scored off. The licence number of PW 1 was ED/C 79 as seen from the last page of Ext. A1. The above writing on page 8 in Ext. A1, would make it clear that PW 1 was considered as an attestor to the document. PW 1 signed in Ext. A1 as an attestor as well as the person who prepared the document. No circumstances were brought out to discredit the evidence let in by PW 1. PW 2 Sundaram Nair is the scribe of Ext. A1 will. He also had given evidence that the document was prepared by PW 1 and PW 1 signed as an attestor also in Ext. A1. The evidence and circumstances would establish that PW 1 was intended to be an attestor and he signed in the document as an attestor as well as the person who prepared the document. There is no prohibition that a person who drafted the document should not be an attestor to the document. A1. The evidence and circumstances would establish that PW 1 was intended to be an attestor and he signed in the document as an attestor as well as the person who prepared the document. There is no prohibition that a person who drafted the document should not be an attestor to the document. A Division Bench of this court in Varghese v. Oommen ( 1994 (2) KLT 620 ) held that an attesting witness need not be labelled in the document as an attesting witness and that a document writer also can be an attestor. It was further held that the registration of the document is a corroborative piece of evidence of its due execution. Thus it was held: "We may not be wrong in saying that no form of attestation is prescribed by statute, but it is necessary that the witness should put his signature with the intention of attesting it and the attestation must follow execution, and not precede it. A witness to be attesting witness need not be labelled as attesting witness and the place at which the signature or thumb mark of witness is subscribed to the document is not decisive to hold whether witness was or was not an attesting witness. A mere perusal of the document Ext. A1 it is difficult to say that there is non compliance with the provisions contained in S.63 of the Act. The fact that both the witnesses have given their identifying description referring to their licence numbers and one of the witness saying that he is the person who has prepared the document may not be sufficient to say that those witnesses are not attesting witnesses. It is not necessary for the witnesses who are attesting the document to declare in the document itself that J they are attesting witnesses. The certificate under S.60(2) of the Indian Registration Act is admissible to prove the facts mentioned in the endorsements, namely, the facts set forth in S.52(1)(a) and S.58(1). It has to be remembered that a certificate of registration endorsed on a document is prima facie evidence that the requirements of the Act have been complied with and it is for the party who challenged the registration to prove any act or omission which would invalidate the registration. It has to be remembered that a certificate of registration endorsed on a document is prima facie evidence that the requirements of the Act have been complied with and it is for the party who challenged the registration to prove any act or omission which would invalidate the registration. It is true that the mere registration of a document, selectively a will is not sufficient proof of its due execution, but the certificate endorsed by the registration officer on the document is admissible to prove that the executant was of sound mind. It is conceivable with the aid of illustration (e) of S.114 of the Evidence Act the court could also presume that the official act of registration has been regularly performed and that the facts mentioned in the endorsements have occurred as mentioned therein of Indian Registration Act endorsed on the deed by registering officer under S.60(2) is relevant piece of corroborating evidence for providing its execution." The evidence of PW 1, the attestor cum document writer and PW 2, the scribe would show that first attestor to Ext. A1 was no more and both of them had explained the circumstances under which Ext. A1 was executed. Their evidence would establish that the testator came to the office of PW 1 and handed over the documents and the testator himself dictated the contents of the document and after getting the document prepared, the testator had read and understood the document and signed in the presence of the attestors and the attestors also signed in the presence of the testator. Ext. A1 would reveal that the testator produced it fur registration, get it registered and got it back after registration. The circumstances of registration of the will also add to the due execution of the will. Thus the evidence would establish that the will was duly attested by two attestors and the execution of Ext. A1 document by the testator had been properly proved. 10. Learned counsel for the appellant argued that the plaintiff was staying in the house along with the testator and the will was executed due to the undue influence from the part of the plaintiff and she had been unduly benefited by obtaining a major portion of the properties by the will. 10. Learned counsel for the appellant argued that the plaintiff was staying in the house along with the testator and the will was executed due to the undue influence from the part of the plaintiff and she had been unduly benefited by obtaining a major portion of the properties by the will. It was further argued that the wife of the testator and the three of his sons and two of his daughters were not given anything as per the will and hence the disposition; of the property was unnatural, and the suspicious circumstances surrounding the execution of the will had not been duly explained and the plaintiff was to remove all the suspicious circumstances by reliable and acceptable evidence. Learned counsel for the appellant cited decisions in Jaswant Kaur v. Amrit Kaur ( AIR 1977 SC 74 ) and Indu Bala v. Manindra Chandra ( AIR 1982 SC 133 ) to substantiate his argument that the burden was on the propounder of the will ie., the plaintiff to explain all the suspicious circumstances in the execution of the will. In Indus Bala v. Manindra Chandra, AIR 1982 SC 133 the Supreme Court held: - " .... The onus of proving the wilt is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Even where circumstances give rise to doubts, it is for 3 the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural, improbable or unfair in the light of the relevant circumstances, or there might be other indications in the will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. Any and every circumstance is not a 'suspicious' circumstance. A circumstance would be 'suspicious' when it is not normal or is not normally expected in a normal situation or is not expected of a normal person..." 11. Chacko, the testator was a retired Headmaster of a School. The evidence of PW 1 and PW 2 would reveal that the testator had met PW 1 and demanded the execution of a will and the testator had given all the details regarding the execution of the will and the testator was having the testamentary capacity. On going through the will it is seen that the plaintiff (daughter) was unmarried at the time of executing the will and hence more properties were set apart to her. It was further provided that if the marriage of the plaintiff could be solemnised during his life time, the properties set apart to her as per the will would ensure to the benefit of two of his sons ie. defendants 7 and 8. It was further stipulated in Ext. A1 that the wife was not given any properties because she would be entitled to family pension after the death of the testator and the family pension would be sufficient for her livelihood. Further there was a direction that the other children to whom properties were legated, should look after the affairs of the mother during her lifetime. The 9th defendant was a minor at the time of executing Ext. A1 and that aspect was also taken into account in legating the properties to him. It was further stipulated that no properties were given to the other two daughters as they were sent in marriage by giving 'sreedhanam'. The 9th defendant was a minor at the time of executing Ext. A1 and that aspect was also taken into account in legating the properties to him. It was further stipulated that no properties were given to the other two daughters as they were sent in marriage by giving 'sreedhanam'. It was also stipulated that defendants 3, 4 and 6, who are the sons of the testator, were not given any properties as they were educated by spending money of the testator and for other reasons, and they are in affluent circumstances. Thus the testator himself had given valid and acceptable reasons for the nature of the disposition of his properties in favour of certain of his children in exclusion of the three sons and two daughters. The evidence of PW 1 and 2 would reveal that at the time of drafting the will, PW 1 had asked the testator why the properties were not set apart for some of his children and the testator had explained the reasons thereof. 12. The evidence would clearly reveal that the appellant and his wife were Professors in the college and they are in very affluent circumstances. The nature of the disposition would make it clear that the testator wanted to set apart more properties to his unmarried daughter (plaintiff) and the rest to the younger children who were not on their own legs and excluded the three sons who were in affluent circumstances and the two daughters who were sent in marriage spending his own money. On a consideration of the entire document and the evidence, there was nothing to infer that the disposition of the properties was unnatural or unreasonable. No circumstances were there to infer any undue influence as contended by the appellant. The evidence of PW 1 and 2 would make it clear that the testator was in a sound and proper state of mind at the time of executing the document. No circumstances are there to doubt the testamentary capacity of the testator. The appellant had no case that the testator was not in a sound and proper state of mind at the time of executing the document. The only contention raised by him was that he was not aware of the execution of the will by his father. The above contention did not amount to a challenge of the testamentary capacity of the testator. 13. The only contention raised by him was that he was not aware of the execution of the will by his father. The above contention did not amount to a challenge of the testamentary capacity of the testator. 13. It is pertinent to note that the wife of the testator as well the sons and daughters, except the appellant, did not contest the matter and they have conceded to the course adopted in the disposition of property by the testator. That is an important circumstance to show that there was no suspicious circumstance in the execution of the will. In Para.12 of the judgment cited supra ( AIR 1982 SC 133 ) it was held that one of the brothers, who was not given anything under the will, had filed a written statement stating that he had no objection to the grant of probate, was a circumstance lending strong support to the plaintiff's case of genuineness and valid execution of the will. All the other children to whom no properties were set apart in the will had supported in granting the Letters of Administration in favour of the plaintiff. The third defendant who was in affluent circumstances alone contested the matter raising all sorts of untenable contentions. The plaintiff has explained all the circumstances regarding the execution of the will and in fact, there was no suspicious circumstance doubting the genuineness of the will. The court below had considered the entire evidence and circumstances and granted Letters of Administration in favour of the plaintiff, one of the legatees. We find no reason to interfere with the above finding. Considering the nature of the contentions raised by the appellant, we find it to be a fit case where he should be directed to pay the cost of respondents. In the result, this appeal is dismissed with cost to the respondents.