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2016 DIGILAW 1107 (KER)

Avira Joseph v. Joseph Mathew

2016-12-15

K.HARILAL

body2016
JUDGMENT : K. Harilal, J. 1. The substantial question of law that arises for consideration in these Regular Second Appeal is, have not the courts below erred in relying on the evidence, other than the evidence adduced under Section 68 of the Indian Evidence Act, 1872 (hereinafter referred to as ‘the Act’), where any one of the twin requirements under Section 70(1) of the Act was not satisfied. 2. Heard Sri. T. Krishnanunni, learned Senior Counsel for the appellants and Sri. Mathew John, learned counsel appearing for the respondents. 3. Since the parties in these appeals are common and the subject matter and the matters in dispute are same, both appeals are heard together and disposed of, accordingly. 4. The facts necessary for the determination of the substantial question of law alone need be narrated in these appeals. 5. The common appellant in both these appeals is the plaintiff in O.S. No. 413/2000 and the first defendant in O.S. No. 359/2000 on the files of the Principal Sub Court, Kottayam. O.S. No. 413/2000 was a suit for setting aside or cancelling Ext.BI Will allegedly executed by (late) Fr. Mathew Nadackal, who is the brother of the plaintiffs father. O.S. No. 359/2000 was a suit for partition, on the basis of Ext.BI Will, filed by the defendants 1 to 4 in O.S. No. 413/2000. The parties are referred to as in O.S. No. 413/2000. According to the plaintiff, the plaint schedule property therein originally belonged to Rev. Fr. Mathew Nadackal, who is the brother of the plaintiffs father. He was a Roman Catholic priest. He was suffering from various diseases and the plaintiff was looking after him. Since he was a bachelor, he has promised that his property will be given to the plaintiff. At the time of his death, he has lost all his will power and he could not even manage his personal affairs independently. He was admitted for treatment in the Holly Cross Hospital. During his last days, he has no physical or mental capacity to execute a document. On 28.7.2000, the plaintiff came to know that the defendants colluded together and concocted a document styling as a Willi-of Rev. Fr. Mathew Nadackal, which is marked as Ext.BI It is not a genuine Will and it was executed without the knowledge of the testator. Ext.BI Will was concocted for taking undue advantage. On 28.7.2000, the plaintiff came to know that the defendants colluded together and concocted a document styling as a Willi-of Rev. Fr. Mathew Nadackal, which is marked as Ext.BI It is not a genuine Will and it was executed without the knowledge of the testator. Ext.BI Will was concocted for taking undue advantage. It is vitiated by a large number of suspicious circumstances. At the time of execution of the Will, the testator was aged 88 years. There are so many suspicious circumstances surrounding to the Will. Hence, the plaintiff filed the suit and sought for setting aside or cancelling Ext.BI Will. 6. In the written statement, the defendants 1 to 4 and 7 contended that Ext.BI Will is a duly executed and registered one. It was the last Will of Rev. Fr. Mathew Nadackal. At the time of execution of the Will, he had sound disposing mind and he has executed the Will after obtaining sufficient legal advise. They denied the allegation that at the time of execution of the Will, Fr. Mathew Nadackal was physically or mentally incapacitated to execute a Will. According to the defendants, he was having full mental ability to execute the Will. There was no fraud and no undue influence was exerted on him to execute the Will. In short, the testator of Ext.BI Will was physically and mentally fit for executing the Will. The averment in O.S. No. 359/2000 is that Rev. Fr. Mathew Nadackal died on 16.7.2000 and Ext.BI Will has come into force. Even though, specific shares have been allotted as per the Will, the property is in joint possession and hence the property is to be divided as per the terms of the Will. Therefore, the suit has been instituted for partition and for injunction. In the written statement filed by the defendants, they reiterated all the averments in the plaint in O.S. No. 413/2000. Hence, the contentions need not be repeated again. 7. On the rival pleadings, both suits were tried jointly and both the parties adduced evidence, both-oral and documentary, consists of oral testimony of PWs. 1 and 2 and DWs. 1 and 2, Exts.AI and A2 and Exts.BI and B2. After evaluating the evidence, on record, the trial court decreed O.S. No. 359/2000 as prayed for and dismissed O.S. No. 413/2000. Feeling aggrieved, the plaintiff in O.S. No. 413/2009 preferred two appeals, as A.S. Nos. 1 and 2 and DWs. 1 and 2, Exts.AI and A2 and Exts.BI and B2. After evaluating the evidence, on record, the trial court decreed O.S. No. 359/2000 as prayed for and dismissed O.S. No. 413/2000. Feeling aggrieved, the plaintiff in O.S. No. 413/2009 preferred two appeals, as A.S. Nos. 24/2006 and 25/2006 respectively, before the District Court, Kottayam. After re-appreciating the entire evidence, on record, the Appellate Court concurred with the findings of the trial court and dismissed both the appeals. The legality and correctness of the concurrent findings of the courts below, are challenged in these appeals. 8. The learned counsel for the plaintiff submits that Ext.BI Will was not proved, as required under Section 68 of the Act, though one of the attesting witnesses was examined, in evidence. The learned counsel further submits that DW 3 alone was examined, as attesting witness, and he admitted the attestation made by him. But, he further deposed that he was unaware of the fact that he was going to sign the Will, as a witness in the Will executed by Fr. Mathew Nadakkal. So also, he deposed that he has not seen the signing of the Will by the testator or other witness. According to the learned counsel for the appellants, DW3 has not denied his signature or attestation and he specifically deposed that he remembers execution of Ext.BI Will. Therefore, the statutory requirements under Section 71 of the Act, are not satisfied to prove the execution of the Will by resorting to other evidence on record. But, the courts below went wrong by relying on other evidence also. 9. On the other hand, the learned counsel for the respondents advanced arguments to justify the reliance made by the courts below on the evidence, other than the evidence under Section 68 of the Act. Thus, the question, in controversy, centers around Section 71 of the Act, which is extracted below for proper appreciation: “71. Proof when attesting witness denies the execution.- If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.” 10. Thus, the question, in controversy, centers around Section 71 of the Act, which is extracted below for proper appreciation: “71. Proof when attesting witness denies the execution.- If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.” 10. Going by Section 71 of the Act, it is discernible that the object of Section 71 of the Act is in the nature of a safeguard, to the mandatory provisions of Section 68, to meet a situation, where it is not possible to prove the execution and attestation of the Will by examining one of the attesting witnesses. The aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document. Section 71 is meant to rescue the propounder, who failed to prove the execution and attestation of the Will in compliance with the requirements under Section 63 of the Indian Succession Act, 1925. On failure, they are permitted to resort to other witness as well to prove the execution of the Will. In short, one of the twin conditions contemplated under Section 71 of the Act have to be satisfied to prove the Will by resorting to evidence other than the evidence adduced under Section 63 of the Indian Succession Act, 1925. 11. According to Section 68 of the Act, the propounder of the Will must prove by examining one of the attesting witnesses in the Will that the execution and attestation of the Will were effected in adherence to the requirements under Section 63 of the Indian Succession Act, 1925, and this is the general rule governing the proof of execution. But Section 71 of the Act, is an exception to Section 68 of the said Act. The propounder is permitted to prove the due execution, as required under Section 63 of the Indian Succession Act, 1925, by resorting to evidence other than the evidence available by examination of one of the attesting witnesses under Section 68 of the Act, in a situation where one of the two conditions hereunder is satisfied: (i) The attesting witness who has been called for under Section 68 of the Act denies the execution of the Will; (ii) He fail to recollect execution of the Will. 12. 12. Put it differently, the propounder is not permitted for resorting to evidence other than the evidence available under Section 68 of the Act, where the attesting witness, who has been called for admit the execution and recollect the execution of the will. 13. Here, it is to be remembered that the attestation of the Will, as contemplated under Section 63 of the Indian Succession Act, 1925, cannot be said to be proved on a mere admission of execution by the attesting witness or the recollection of execution by that attesting witness. The execution and attestation can be said to be proved where it stands proved that: (a) the testator signed or affixed his mark to the Will or the Will is signed by some other person in the presence of testator and by his direction. (b) the signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c) the Will was attested by two or more witnesses, and each of the witnesses has seen the signing or affixture of mark of the testator to the Will or has seen some other person signed 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 the signature of such other person. (d) each of the witnesses has signed the Will in the presence of a testator. 14. In the instant case, DW-3, the sole attesting witness, has not denied the attestation and he admitted his signature and he recalled the execution of the document. But, he has not seen the signing of the Will by the testator or other attesting witnesses. Thus, one of the twin conditions is not satisfied to invoke the right to seek and rely on other evidence to prove the execution of the Will. Therefore, this Court is inclined to countenance the arguments advanced by the learned Senior Counsel for the appellants that the courts below went wrong by resorting to evidence other than the evidence available under Section 68 of the Act to arrive at a conclusion that the Will was duly executed and stands proved. 15. Therefore, this Court is inclined to countenance the arguments advanced by the learned Senior Counsel for the appellants that the courts below went wrong by resorting to evidence other than the evidence available under Section 68 of the Act to arrive at a conclusion that the Will was duly executed and stands proved. 15. Going by the impugned judgments under challenge, it could be seen that the courts below have relied on other evidence available, on record, to satisfy the proof of the due execution of the Will, which was not permitted under Section 71 of the Act. Thus, in short, the courts below went wrong by relying on evidence, other than the evidence let in, in compliance with Section 63 of the Indian Succession Act, 1925. The courts below cannot be justified in relying on other evidence to satisfy themselves as proof of execution of the Will. It follows that interference of this Court is required. Consequently, the impugned judgments passed by the courts below will stand set aside. 16. Then, the question is, what is the proper course to be adopted by the appellate court in such a situation? If sufficient opportunity is not given to prove execution of the Will, certainly, the will and wish of the deceased testator, if genuine, must be defeated. So, sufficient opportunity must be given to prove the wish and will of the deceased testator. This Court is of the view that if the propounder of the Will fails to prove the execution and attestation of the Will, as required under Section 63 of the Indian Succession Act, hi 925 and Section 68 of the Act and further prevented from proceeding under Section 71 of the Act, due to the absence of requirements under the said Section, the propounder must be given a further opportunity to adduce more evidence, as required under Section 63 of the Indian Succession Act, 1925 to prove, the execution and proper attestation of the Will. In the instant case, only one attesting witness has been examined among the two. So, a further opportunity has to be given to the propounder. The defendants also will get a chance to adduce more evidence and such an opportunity must be given for the interest of justice. In the instant case, only one attesting witness has been examined among the two. So, a further opportunity has to be given to the propounder. The defendants also will get a chance to adduce more evidence and such an opportunity must be given for the interest of justice. In the above view, this Court is of the opinion that the matter has to be remitted back to the trail court for further evidence and I do so. Both parties are at liberty to adduce further evidence, including amendments in the pleadings, provided that the plaintiff shall not alienate or encumber the property further, till the disposal of the case afresh. Needless to say, if the Will is not proved, automatically the intestate succession will stand opened and the parties are at liberty to seek partition of the property, in accordance with law. The parties shall appear before the trial court on 1st February, 2017. Both Regular Second Appeals are disposed of accordingly.