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2002 DIGILAW 180 (KER)

G. Sukumary v. M. Lydya alias laila

2002-03-14

K.A.MOHAMMED SHAFI, K.S.RADHAKRISHNAN

body2002
Judgment :- Radhakrishnan, J. This appeal was preferred by one G. Sukumary who was the defendant in O.S. 3 of 1998 before the Ist Addl. District Judge, Trivandrum against the judgment and decree in the above suit. Respondents herein as plaintiffs had filed O.P. (L.A.) 173/86 on the file of the District Court under Section 276 of the Indian Succession Act for letters of administration with the Will annexed in respect of the estate of deceased K.P. Panicker alias K. Ponnan Panicker. Ponnan Panicker had executed the Will on 19-1-1983 which came into effect on the death of the testator on 27-10-1986. counter petitioner opposed the O.P. contending that late Ponnan Panicker had not executed any Will and that the Will produced was a fabricated one and vitiated by fraud and collusion. Since the original petition was opposed the same was converted into a suit and numbered as O.S. 3 of 1988. Following issues were framed in the suit. i) Is the Will dated 19-1-1983 relied on by the plaintiffs is valid and genuine ? ii) Is the Will vitiated by fraud and collusion as alleged by the defendant ? On the said of the plaintiffs PW-1 to PW-5 were examined and Exts. A1 to A25 were marked. No evidence was adduced on the side of the defendant. Ext. B1 is document produced by defendant. Court below after perusing the oral and documentary evidence adduced on the side of the plaintiffs decreed the suit issuing letters of administration with Ext. A1 Will annexed and granted in favour of the petitioners in respect of the petition schedule properties. 2. Aggrieved by the same defendant had preferred this appeal. While the appeal was pending before this Court appellant died on 1-5-1996. CMP. 2370/96 was filed by six petitioners who are children of the brother of the original appellant. Their father had pre-deceased the appellant. Appellant had no sisters. Petitioners submitted that they are the only legal heirs of the deceased appellant and therefore they are entitled to be impleaded as additional appellants 2 to 7 in the appeal. CMP. 3151 and 4114 of 1996 were also filed by three strangers. This court dismissed those two petitions, however, allowed CMP. 2370/96 with a rider that they will have to establish independently their right to succeed to any property belonging to the deceased appellant. CMP. 3151 and 4114 of 1996 were also filed by three strangers. This court dismissed those two petitions, however, allowed CMP. 2370/96 with a rider that they will have to establish independently their right to succeed to any property belonging to the deceased appellant. Plaintiffs who are respondents herein also filed objection with regard to the impleadment of the petitioners in CMP. 3151/96 contending that they have no locus standi. Impleadment was however, allowed subject to the final decision in the appeal. The appeal then came up for hearing before this Court on 11th September 2001 and this Court felt that interests of justice demands that an opportunity be given to the appellants 2 to 7 to cross-examine PW1 and other witnesses. Consequently an order was passed to that effect on 11-9-2001. On the basis of that order PW-1, PW-2, PW-3 and PW-5 were recalled and appellants 2 to 7 were permitted to cross-examine them. Additional 6th appellant was also examined as DW-1 and evidence recorded. 3. Sri. K.T. Sankaran, Advocate appeared for appellants 2 to 7. Counsel attacked the findings of the Court below on various grounds. Counsel submitted the Will alleged to have been executed by Ponnan Panicker on 19-1-1983 was vitiated by undue influence and fraud. Counsel submitted Ponnan Panicker was not having any sound disposing power at the time of executing the Will. The Will was concocted and the petition was filed to appropriate the properties left behind by late Ponnan Panicker. It was contended that Sukumary was the legally wedded wife of Ponnan Panicker and there is no reason to disinherit her. Appellants 2 to 7 being the only legal heirs of Sukumari are entitled to inherit the properties of late Sukumari. Counsel also pointed out various suspicious circumstance surrounding execution of the Will. 4. Counsel appearing for the respondents Sr. B. Radhakrishnan contended that the Will was executed by Ponnan Panicker and he was having sound disposing power and free Will. Counsel submitted since Sukumari was completely disinherited the appellants have no legal right to claim any rights over the property covered by the Will. Counsel submitted there is no suspicious circumstance surrounding the execution of the Will. 5. The Only question to be decided in this case is whether the Will executed is genuine or not. In this case we have evidence of PW-2, the attestor of the Will. Counsel submitted there is no suspicious circumstance surrounding the execution of the Will. 5. The Only question to be decided in this case is whether the Will executed is genuine or not. In this case we have evidence of PW-2, the attestor of the Will. Sub Registrar who registered the Will was examined as PW-3. Scribe of the Will was examined as PW-4. Assistant of PW-4 was examined as PW-5. Second plaintiff was examined as PW-1who deposed in accordance with the petition filed before the Court below. We find from the evidence, the Will was executed on 19-1-1983 and the testator died only on 27-10-1986 after a period of more than 3 years. Evidence also discloses that Ponnan Panicker had executed Ext. A2 settlement deed dated 19-1-1983 in favour of Mary Irene @ Rani Mathew, the second plaintiff settling the some properties in her favour. Another settlement deed A3 dated 20-8-1983 was also executed by Ponnan Panicker in favour of third plaintiff. A4 settlement deed dated 1-4-1986 was also executed by Ponnan Panicker in favour of Lidiya Cherian, the first plaintiff. Another settlement deed A5 dated 14-7-1986 was also executed by Ponnan Panicker in favour of the first plaintiff. None of those settlement deeds were questioned by deceased Sukumari. We find that the letters of administration was sought for in respect of a Will in respect of the petition schedule properties which are residuary properties minus the properties covered by A2 to A5. Ext. A6 and A7 are series of building tax receipts in respect of the properties. Buildings in A2 to A5 property are in the names of various plaintiffs. Exts. A8 to A17 are letters written by PW2 to the second plaintiff at Sharja which would show that PW2 was looking after the construction of the building and money was sent by the second plaintiff for that purpose. Ext. A18(a) (b) and A23 letters sent by Ponnan Panicker to PW-1 would show the happy relationship with the plaintiffs during the period 1981 to 1986. Other document also support the same. We find that A2 to A5 settlement deeds were executed by Ponnan Panicker with love and affection. 6. Ext. A18(a) (b) and A23 letters sent by Ponnan Panicker to PW-1 would show the happy relationship with the plaintiffs during the period 1981 to 1986. Other document also support the same. We find that A2 to A5 settlement deeds were executed by Ponnan Panicker with love and affection. 6. It is well settled the burden is always upon the propounder of the Will to prove satisfactorily that the testator had the sound and disposing mind and capacity to execute the Will and that if there be any circumstances appearing against the due execution of the Will it is for the propounder to remove those doubts from the mind of the Court. In other words, the onus probandi to establish a Will lies on the person who propounds the Will and this onus in general discharged by proof of capacity, and the fact of execution, from which the knowledge and the assent to its contents by the testator will be assumed. This legal position is well settled and requires no reiteration. 7. We may therefore now examine whether the propounder had discharged the burden. Evidence of PW-1 who is the second plaintiff, evidence of Pw-2, the attestor to A1 Will, evidence of PW-3, Sub Registrar who registered A1 Will and also A2 settlement deed on the same date of A1 by which Ponnan Panicker gifted some of his properties, the evidence of Pw-4 the document writer who prepared Ext. A1 Will and through whom registration of the said document was put through, the evidence of PW-5 who was present at the time of writing execution and registration of A1 Will and who is also the scribe of A2 to A4 documents are the materials witnesses to establish the due execution of the Will. We have already indicated that PW-1 has deposed in minute detail the circumstances under which Ponnan Panicker had executed the Will. He dispelled all the suspicious circumstances if at all there are any such circumstances as contended by the counsel for the appellants. Nothing has been brought out in cross examination to discredit his version. PW2 who signed the Will as attestor. He has clearly stated in chief examination that the Will was executed by Ponnan Panicker had seen him signing the Will as a witness and that he had seen Ponnan Panicker signed the Will. He turned hostile when he was cross examined on 15-11-2001. PW2 who signed the Will as attestor. He has clearly stated in chief examination that the Will was executed by Ponnan Panicker had seen him signing the Will as a witness and that he had seen Ponnan Panicker signed the Will. He turned hostile when he was cross examined on 15-11-2001. Various statements made by him in cross examination goes contrary to the evidence adduced by him in chief examination. We have no hesitation to discard his evidence tendered in the cross examination. He had earlier stated that Ponnan Panicker was having sound disposing power and was capable of understanding the details of the Will as well at the time of its execution. PW-4 document writer was also examined, who also support the version of PW-2. 8. The crucial witness in this case to prove the execution of the Will is the Sub Registrar. A1 is a registered Will. It is well settled that if a Will has been registered, that is a circumstance which may have regard to the circumstances, prove its genuineness. It is true mere fact that the Will is a registered would not by itself be sufficient to dispel all suspicion surrounding it. In this case unimpeachable evidence of the Sub Registrar satisfies all ingredients for execution of a proper and valid Will. Facts reveal that he was a distant relation of Ponnan Panicker. He has also deposed that he had completed all the formalities for the execution of a proper Will. Apex Court in Purnima Debi v. Khagendra Narayan, AIR 1962 SC 567 has held as follows : "Therefore the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a Will; though the fact that there has been registration would be an important circumstance in favour of the Will being genuine if the evidence as to registration establishes that the testator admitted the execution of the Will after knowing that it was a Will the execution of which he was admitting. The above mentioned decision was followed by this Court in Antony v. Ouseph & another, 1989 (2) K.L.J. 765. The disinheritance of Sukumary, the wife , ifself is not a circumstance causing suspicion surrounding the execution of the Will. Reference may be made to the decision of the Apex Court in S. Sundresa Pai and others v. Mrs. The above mentioned decision was followed by this Court in Antony v. Ouseph & another, 1989 (2) K.L.J. 765. The disinheritance of Sukumary, the wife , ifself is not a circumstance causing suspicion surrounding the execution of the Will. Reference may be made to the decision of the Apex Court in S. Sundresa Pai and others v. Mrs. Sumangala T. Pai and another, JT 2001 (10) 92 wherein the Apex Court held that uneven distribution of assets amongst the children by itself is not a vitiating factor. 9. We are therefore on facts fully concur with the view of the Court below that the Will was duly executed and the propounder has discharged the burden of its due execution. Propounder had established that the testator had sound and disposing mind and capacity to execute the Will. Under such circumstance we find no reason to interfere with the judgment of the court below. Appeal lacks merits and the same is accordingly dismissed.