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2003 DIGILAW 118 (KER)

Ammini Amma v. Govindan Nair

2003-02-13

A.LEKSHMIKUTTY

body2003
Judgment :- Against the judgment in O.S.No.266/1993 on the file of the Additional Sub Court, Irinjalakuda, this appeal is filed by the defendant in the suit. The plaintiff filed suit for petition and separate possession of his one half share over the plaint schedule property. The case of the plaintiff is that the property originally belonged to his sister Ammukutty Amma which she obtained as per Ext.A1 partition deed. The defendant is the sister of the plaintiff. B schedule item was transferred by Ammukutty Amma as per sale deed No.3130/83. Ammukutty Amma died on 20.7.1987 as intestate. She died unmarried and issueless. The plaintiff and defendant, who are brother and sister of Ammukutty Amma, are the only legal heirs of the deceased. As per Ext.A1 partition deed Ammukutty Amma has given right to reside in the tharawad house till her death. Accordingly Ammukutty Amma was residing in the building with the defendant. Taking advantage of the opportunity the defendant got executed a will deed without the knowledge and consent of the deceased. Plaintiff came to know about the execution of the alleged will only after the death of Ammukutty Amma. There was no circumstances to execute the will in 1971. Deceased Ammukutty Amma was an employee in the Textile Mill and she had no expectation of death during that period. If she had an intention to bequeathe the property to the defendant, she would have been incorporated it in the partition deed itself. The document was got executed fraudulently without the knowledge of the testator. The defendant filed O.P.No.27/87 before the Munsiff Court, Irinjalakuda alleging that an amount of Rs.200/- was retained in the alleged will to be given to the plaintiff. Since he refused to accept the money, O.P.was filed. Against the order passed in O.P.27/87, the plaintiff filed A.S.No.9/89. The order of the Munsiff court was set aside and the appeal was allowed. After the death of Ammukutty Amma, the defendant received the gratuity and provident fund amount for which also the plaintiff is entitled to get half share. So the suit is filed for partition and separate possession. 2. The defendant filed a written statement contending that the plaintiff has no right over the property. Ammukutty Amma executed a registered will No.3/1971 and she died in 1987. So the suit is filed for partition and separate possession. 2. The defendant filed a written statement contending that the plaintiff has no right over the property. Ammukutty Amma executed a registered will No.3/1971 and she died in 1987. After the death of Ammukutty amma by virtue of the will the defendant has become the absolute owner of the property. The parties were governed by Marumakkathayam law of inheritance and traditionally marumakkathayees are more devoted to the women members of the family. Accordingly Ammukutty Amma bequeathed her right over the property to the defendant. The allegation that the will was executed fraudulently and without the knowledge and consent of Ammukutty Amma is denied. Even before the death of Ammukutty Amma, the plaintiff had knowledge about Ext.B4 will. Ammukutty amma spent all her income from her employment to the defendant and her family. Ext.B4 is the free will and testament. Since the plaintiff refused to receive the money stipulated in Ext.B4 will, the defendant filed O.P.No.27/87. All the allegations against the will is false and frivolous. Ext.B3 is the last will and testament of the deceased. The plaintiff is not entitled to get any share over the property. 3. Based on the above pleadings, the court below framed six issues. The evidence in this case consists of the oral testimony of PW1 and DWs.1 to 4 and Exts.A1 to A3 and Exts.B1 to B4. The court below after considering the evidence passed a preliminary decree for partition against which this appeal is preferred by the defendant. 4. There is no dispute that the property originally belonged to deceased Ammukutty Amma as per Ext.A1 partition deed. Out of the same, she has alienated B schedule property to strangers and the remaining property is scheduled as A in the plaint. Ammukutty Amma died unmarried and issueless on 20.7.1987. As per the plaintiff, after the death of Ammukutty Amma, the right over her property devolved on the plaintiff and the defendant, who are respectively brother and sister. The contention of the defendant is that during the lifetime of Ammukutty Amma, she had executed a will bequeathing the plaint schedule property to the defendant as per Ext.B4 will dated 23.1.1972. It is her free will and testament. So the plaintiff is not entitled to get any share over the plaint schedule property. 5. The contention of the defendant is that during the lifetime of Ammukutty Amma, she had executed a will bequeathing the plaint schedule property to the defendant as per Ext.B4 will dated 23.1.1972. It is her free will and testament. So the plaintiff is not entitled to get any share over the plaint schedule property. 5. The only question to be considered is whether the will alleged to be executed by deceased Ammukutty Amma is genuine or not. According to the plaintiff, he came to know about the will only after the death of Ammukutty Amma. According to him, there is no necessity for the deceased to execute a will in 1971 when there is no expectation of death. She was only aged 51 to 52 on the date of the alleged will. The deceased Ammukutty Amma was residing with the defendant in the tharawad house as per the provisions of the partition deed. Taking advantage of the situation, this document is fraudulently created by the defendant and her husband. It is a registered will. The deceased bequeathed her property to the defendant voluntarily. The parties are following Marumakkathayam system of inheritance and traditionally they are interested in the female line. After the marriage, the plaintiff has not looked after the affairs of the deceased. 6. To prove the will, the defendant examined DW3, who is the husband of the defendant. Ext.B4 is the disputed will. It is not disputed that the testator was employed in Alagappa Textile Mills. As per the defendant, the deceased Ammukutty Amma spent her entire salary for the family of the defendant. She retired from service in 1979 at the age of 60. With regard to the disposing capacity, nobody has any dispute. Whether Ext.B4 is a free testament of the deceased is to be considered. The only evidence to prove the execution of the will is that of DW2, the husband of the defendant. His evidence would not show that the testator put her signature in the will in the presence of the witnesses and the witnesses saw the putting of the signatures by the testator also. Section 63 of the Indian Succession Act reads as follows”. 63. His evidence would not show that the testator put her signature in the will in the presence of the witnesses and the witnesses saw the putting of the signatures by the testator also. Section 63 of the Indian Succession Act reads as follows”. 63. Execution of unprivileged wills – Every testator, not being a soldier employed in an 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. 7. As per the evidence of DW1, one of the testator Govindan Nair is now no more. As per the evidence of DW2, the deceased Ammukutty Amma affixed her signature in two places in Ext.B4. She had signed at the first and second page of the document only. He has specifically stated that he did not see Ammukutty Amma putting her signature in any other pages of the document. According to him, the signature of Govindan Nair is not seen in Ext.B4. it is further sworn to by him that he is not aware of the fact whether Govindan Nair has seen the putting of signature by the testator. According to him, the signature of Govindan Nair is not seen in Ext.B4. it is further sworn to by him that he is not aware of the fact whether Govindan Nair has seen the putting of signature by the testator. No question was put to the Witness in chief examination itself, whether he put his signature in the presence and sight of the testator and the testator put her signature in his presence and sight. According to this witness, one Kunjiama knows the execution of the document and she is alive at the time of evidence. He has no acquaintance with Govindan Nair, the other testator. According to this witness, Govindan Nair is a permanent witness in the Sub Registrar’s Office. So the evidence of DW2 is not sufficient to prove the due execution of the document. DW4 is alleged to be the son of Govindan Nair, the other testator. According to him, his father was an agriculturist and his father never used to go to the Sub Registrar’s office as a permanent witness to the document. It is pertinent to note that no question was asked to the witness with regard to the signature alleged to be put by Govindan Nair in Ext.B4. So practically the execution of Ext.B4 will is not properly proved. 8. Sections 67 and 68 of the Evidence Act relates to the proof of the will. Under Section 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 handwriting, and for proving such a hand writing under Ss.45 and 47 of the Act the opinion of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 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 Sections 67 and 68 of the Evidence Act 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. 9. In dealing with the proof of wills, the court will start on the same enquiry as in the case of the proof of documents. 9. In dealing with the proof of wills, the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will. In the present case none of the ingredients is proved by DW2, who was cited to prove the execution. Since the plaintiff disputes the genuineness of Ext.B4, the burden is on the defendant to substantiate the same. Merely because the will is a registered one that itself is not sufficient to remove the suspicion. One of the suspicious circumstances may be with regard to the attestation of the will. Here the evidence of DW2 is of no use to prove the proper execution of Ext.B4. In order to prove that a will was properly executed and was intended to be given effect to as such, it has to be proved, apart from other things, that the said document was attested by two or more witnesses in the manner provided under Section 63(c) of the Indian Succession Act. It is not necessary that both the attesting witnesses should be present at the same time, but the witnesses should say that he has signed the will in the presence of the testator or after obtaining an acknowledgment from the testator. Section 68 of the Evidence Act mandates that a document, which requires by law, to be attested shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution. Ext.A1 is the partition deed. A comparison of the signature in Ext.A1 and Ext.B4 show that there is difference between the signature seen in Ext.A1 and Ext.B4. It has come out in evidence that Ammukutty Amma is an illiterate person. Difference in the signature alone will not be sufficient to find that the document is not genuine. No question was put to DW2 so as to prove the execution of the will. So it is to be found that Ext.B4 will is not properly proved. It has come out in evidence that Ammukutty Amma is an illiterate person. Difference in the signature alone will not be sufficient to find that the document is not genuine. No question was put to DW2 so as to prove the execution of the will. So it is to be found that Ext.B4 will is not properly proved. His case is that the testator has put her signature in two places whereas in Ext.B4 the signature is seen in four places. Even though the plaintiff has alleged that the will was fraudulently created, no evidence was adduced to substantiate the same. But it is to be found that the defendant has failed to prove the due execution of the will. Therefore, the court below has rightly found that the plaintiff is entitled to get partition and separate possession of one half share over the A schedule properties. With regard to the partition of the movables, there is no evidence to show that the deceased has left any amount as claimed by the plaintiff. On an anxious consideration of the entire evidence, I find that there is no reason to interfere with the judgment passed by the court below and hence the Appeal is dismissed. There is no order as to costs.