Kerala High Court
P.D.Parameswaran Pillai vs T.N.Ramachandran Nair, (Died Lrs ... on 8 April, 2025
RSA No.159 of 2011
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CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 8TH DAY OF APRIL 2025 / 18TH CHAITHRA, 1947
RSA NO. 159 OF 2011
AGAINST THE JUDGMENT&DECREE DATED 20.01.2011 IN AS NO.224 OF 2007
OF ADDITIONAL DISTRICT COURT, ERNAKULAM ARISING OUT OF THE JUDGMENT
&DECREE DATED 30.03.2007 IN OS NO.258 OF 2005 OF III ADDITIONAL MUNSIFF
COURT, ERNAKULAM (RENT CONTROL)
APPELLANTS/APPELLANTS/DEFENDANTS:
1 P.D.PARAMESWARAN PILLAI
AGED 69 YEARS
H/O.SULOCHANA AMMA,MARACHERY VEEDU,KEEZHUMADU,, ALUVA.
2 T.P.SATHEESHKUMAR AGED 49 YEARS
S/O.SULOCHANA AMMA,THOTTUNKAL VEEDU,KEEZHUMADU,, ALUVA.
3 T.P.KANAKAM GOPINATH AGED 45 YEARS
D/O.SULOCHANA AMMA,MARACHERY VEEDU,KEEZHUMADU,, ALUVA.
4 T.P.DHANALAKSHMI VIJAYAN AGED 43 YEARS
MARACHERY VEEDU,KEEZHUMADU,ALUVA.
5 T.P.JAYAKUMAR AGED 41 YEARS
S/O.SULOCHANA AMMA,MARACHERY VEEDU,KEEZHUMADU,, ALUVA.
6 UDAYAKUMAR AGED 39 YEARS
S/O.SULOCHANA AMMA,MARACHERY VEEDU,KEEZHUMADU,, ALUVA.
BY ADVS.
SRI M NARENDRA KUMAR
SMT.LAYA SIMON
SRI.P.B.PRADEEP
RSA No.159 of 2011
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RESPONDENTS/RESPONDENTS/PLAINTIFF:
1 T.N.RAMACHANDRAN NAIR, (DIED LRS IMPLEADED)
AGED 71 YEARS,S/O.K.V.NARAYANAN PILLAI,THATTUNKAL VEEDU,,
349/32 (NEDIYATHU PARAMBU) VADAKKUMBHAGOM KARA,, EDAPPALLY
NORTH PO,KUNNUMPURAM,KOCHI-24,NOW RESIDING AT THOTTUNGAL
HOUSE,KANNOTH TEMPLE ROAD, BEHIND M.K.K.NAIR COLONY,
MUPPATHADAM P.O., ALUVA-683 110.
ADDL.R2 AMBIKA RAMACHANDRA,
W/O.T.N.RAMACHANDRA NAIR, AGED 62 YEARS,THATTUNKAL VEEDU,,
349/32 (NEDIYATHU PARAMBU) VADAKKUMBHAGOM KARA,, EDAPPALLY
NORTH PO,KUNNUMPURAM,KOCHI-24,NOW RESIDING AT MURALI NIVAS,
MATHA AMRUTHANANDAMAYI SATHSANGA SAMIDI ROAD,KIZHAKE
KADUNGALLOOR, U.C.COLLEGE, P.O.ALUVA-683 102.
ADDL.R3 VINOD T.R.,
S/O.T.N.RAMACHANDRA NAIR, AGED 36 YEARS,THATTUNKAL VEEDU,,
349/32 (NEDIYATHU PARAMBU) VADAKKUMBHAGOM KARA,, EDAPPALLY
NORTH PO,KUNNUMPURAM,KOCHI-24,NOW RESIDING AT MURALI NIVAS,
MATHA AMRUTHANANDAMAYI SATHSANGA SAMIDI ROAD,KIZHAKE
KADUNGALLOOR, U.C.COLLEGE, P.O.ALUVA-683 102.
ADDL.R4 VIDYA T.R.,
D/O.T.N.RAMACHANDRA NAIR, AGED 36 YEARS,THATTUNKAL VEEDU,,
349/32 (NEDIYATHU PARAMBU) VADAKKUMBHAGOM KARA,, EDAPPALLY
NORTH PO,KUNNUMPURAM,KOCHI-24,NOW RESIDING AT MURALI NIVAS,
MATHA AMRUTHANANDAMAYI SATHSANGA SAMIDI ROAD,KIZHAKE
KADUNGALLOOR, U.C.COLLEGE, P.O.ALUVA-683 102. (THE LEGAL
HEIRS OF DECEASED SOLE RESPONDENT ARE IMPLEADED AS
ADDITIONAL R2 TO R4 AS PER ORDER DATED 09.03.2020 IN
IA.332/2014.)
R1 BY ADV SRI.VARGHESE PREM
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08.04.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
1. The additional defendants, 2 to 7, who are the legal heirs of the
original defendant, are the appellants. Hereinafter, the original
defendant is referred to as the 1st defendant. The plaintiff and
the 1st defendant are the children of Ammalu Amma. The suit
was for the partition of the plaint schedule property having an
extent of 15 ½ cents belonged to Ammalu Amma as per Ext.A1
Gift Deed dated 29.02.1980 executed by the plaintiff. Ammalu
Amma expired on 02.05.1995. The suit was filed on 16.02.2005.
2. As per the plaint allegations, the plaintiff issued Ext.A3 Notice
dated 05.01.2005 to the 1st defendant demanding partition. The
1st defendant sent Ext.A4 Reply dated 10.01.2005 stating that
Ammalu Amma had executed Ext.B2 Will dated 23.05.1980
bequeathing the plaint schedule property in favour of the 1st
defendant. The plaintiff came to know about Ext.B2 Will only
from Ext.A4 Reply. Ammalu Amma never executed such a Will.
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She had no mental capacity to execute any such Will on the
date of the alleged execution. Ammalu Amma was not in a
proper state of mind to make any such disposition due to her old
age. Hence, the plaint schedule is liable to be partitioned,
allotting half share to the plaintiff.
3. The 1st defendant filed a Written Statement opposing the prayer
for partition, contending that Ammalu Amma had executed
Ext.B2 registered Will in favour of the 1st defendant, and hence
the property is not available for partition. Mutation of the
property was effected in favour of the 1st defendant, and she has
been paying land tax. The plaintiff is aware of all these matters.
The plaintiff never raised any objection till the filing of the suit.
When the 1st defendant decided to sell the plaint schedule
property to raise some amounts to pay off her debts, the plaintiff
approached the 1st defendant and asked to lend Rs.50,000/- out
of sale consideration, which the 1st defendant could not give. On
account of this enmity, the present suit is filed by the plaintiff with
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a false claim.
4. On the death of the 1st defendant during the pendency of the
appeal, the additional defendants 2 to 7 were impleaded as her
legal representatives.
5. On the side of the plaintiff, the plaintiff was examined as PW1,
and Exts.A1 to A4 documents were marked. On the side of the
defendants, the 3rd defendant was examined as DW1, and DWs
2 and 3 were examined as attesting witnesses to Ext.B2 Will.
Exts.B1 to B5 were marked on the side of the defendants.
6. The Trial Court disbelieved Ext.B2 Will, finding that the
defendants failed to prove execution and attestation of Ext.B2
Will as required under Section 63(c) of the Indian Succession
Act and accordingly decreed the suit passing a Preliminary
Decree for partition allowing the plaintiff to get partition and
separate possession of one-half share of the plaint schedule
property.
7. The defendants 2 to 7 filed an Appeal before the First Appellate
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Court, and the same was dismissed, confirming the judgment
and decree of the Trial Court.
8. This Court admitted this Appeal on the following substantial
questions of law.
. Whether the courts below are justified in holding that Ext.B2
is not genuine and valid?
. Whether the courts below failed to consider the impact of
Section 71 of the Evidence Act while considering the proof
of Will as enumerated in Sec.68 of the Evidence Act?
. Whether the genuineness of the Will could be established
in the circumstances enumerated in Section 71 of the
Evidence Act?
. Whether the courts below are justified in ignoring
registration of the Will in regard to the proof of Will as
envisaged under Sec.68 of the Evidence Act?
9. I heard the learned counsel for the appellant, Sri.M. Narendra
Kumar, and the learned counsel for the respondent, Sri.
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Varghese Prem.
10. The learned counsel for the appellant argued that the
defendants could prove the execution of Ext.B2 Will with the aid
of Section 70 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA)
corresponding to Section 71 of the Indian Evidence Act, 1872
with other evidence since both the attesting witnesses namely,
DWs 2 and 3 denied the execution of Ext.B2 Will. The learned
counsel contended that since DW2 and DW3 denied the
execution of Ext.B2 Will, the Courts should have considered the
other evidence available in the suit to have found the execution
of Ext.B2 Will. The evidence of DW1, who was present at the
time of the execution of Ext.B2 Will, has clearly proved the
execution of Ext.B2 Will. Other circumstances also clearly
indicate the execution of Ext.B2 Will. The learned counsel
emphasized that the object of Section 70 of the BSA is to permit
the propounder to adduce other evidence in case the attesting
witnesses could not prove the execution of the document for
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various reasons. The fate of a document cannot depend upon
the whims and fancies of the attesting witnesses. Sometimes,
the attesting witnesses may turn hostile in order to help the
person challenging the Will. In such case, the courts are not
powerless. The court can enquire whether other evidence are
available to prove the execution of the Will. The learned counsel
pointed out that Ext.B2 Will was executed in the year 1980,
whereas the witnesses were examined only in 2007. In view of
the evidence of DW1, who was present at the time of the
execution of Ext.B2 Will, its execution is proved with the aid of
Section 70 of the BSA. In support of his arguments, the learned
counsel for the appellant cited the decisions in Ittoop Varghese
v. Poulose & Ors. [1974 KLT 873], Varghese v. Oommen
[1994 KHC 396], George v. Varkey [2004 (1) KLT 21], Janki
Narain Bhoir v. Narain Namdeo Kadim [2003(2) SCC 91],
T.T.Joseph v. K.V Ippunny and others [2007(3) KHC 797],
Devassykutty v. Visalakshy Amma [2010 KHC 6233],
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Venugopalan P.A. & Ors. v. P.A. Gouri [2014 KHC 3033],
Jagdish Chand Sharma v. Narain Singh Saini (dead)
through his legal heirs and others [2015 (8) SCC 615] and
Mannarakkal Madhavi (Died) v. Nangana Dath Pulparambil
Devadasan (Died) [2024 KHC OnLine 781]. The learned
counsel for the appellant concluded that in view of the evidence
of PW1, who was present at the time of execution of Ext.B2 Will
and attending circumstances, the defendants have discharged
the burden to prove the Will with the aid of Section 70 of the
BSA and hence appeal is liable to be allowed answering the
substantial questions of law in favour of the appellants.
11. On the other hand, the learned Counsel for the respondent
argued that it is clear from the evidence of DW2 and DW3 that
their evidence is not sufficient to prove the execution of Ext.B2
Will as required under S.63(c) of the Indian Succession Act.
Section 70 of the BSA is attracted only in the situations where
the attesting witness denies or does not recollect the execution
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of the document. It is a settled law that Section 70 is to be
construed strictly. If Section 70 is liberally construed, it would
definitely defeat the very purpose for which Section 63 of the
Indian Succession Act is enacted for ensuring strict proof of the
execution of Will. Any short comings or lacuna in the evidence
of the attesting witnesses could not be filled up by examining
other witnesses. The learned counsel cited the decision of the
Hon'ble Supreme Court Jagdish Chand Sharma (supra) the
decision of this Court in Mohandas M C v. C Aravindakshan
[2023 KHC 676], in which the scope and ambit of Section 71 of
the Evidence Act is discussed extensively. On the strength of
the said decision, the learned counsel concluded that the
defendants could not be allowed to invoke Section 70 of the BSA
to make up the deficiencies in the evidence of DW2 and DW3
with the evidence of DW1, who is an interested witness since
he also obtained benefits under the Will through the 1st
defendant and hence, the appeal is liable to be dismissed
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answering the substantial questions of law against the
appellants.
12. I have considered the rival contentions.
13. Both sides admit that the plaint schedule property originally
belonged to their mother, Ammalu Amma, who died on
02.05.1995. Ext.B2 is a registered Will alleged to have been
executed by Ammalu Amma. It is well settled that the
registration of the Will will not be a proof for the execution of the
Will and will not exclude satisfaction of the mandatory
requirements of proof of Will as required under Section 63(c) of
the Indian Succession Act read with S.68 of the Evidence Act.
Both the Courts have concurrently found that the evidence of
both the attesting witnesses are not sufficient to prove the
execution of Ext.B2 Will. There is no reason or ground to take a
different view. The question is whether the defendants can
resort to the aid of Section 70 of the BSA to prove Ext.B2 Will
by other evidence. Section 70 of BSA/Section 71 of the old
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Evidence Act is extracted hereunder.
"Proof when attesting witness denies execution: If the
attesting witness denies or does not recollect the execution of the
document, its execution may be proved by other evidence."
14. Going by the wording of Section 70 of the BSA, it attracts
only if the attesting witness denies or does not recollect the
execution of the documents. The Division Bench of this Court,
in the decision in Ittoop Varghese v. Poulose [ 1974 KLT 873],
held that when the court is satisfied that the witnesses
deliberately and falsely denied that they attested the will, the
court is entitled to look into the other circumstances and the
regularity of the will on the face of it and come to the conclusion
on the question of attestation.
15. The decision in Ittoop Varghese (supra) is followed by
another Division Bench of this Court in the decision in Chacko
v. Elizabeth John [1997(1) KLT 739] holding that merely
because an attesting chooses to deny attestation of the
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document, the propounder of the will should not be without
remedy; that when the court is satisfied that witnesses
deliberately and falsely denied that they attested the Will, court
is entitled to look into the other circumstances and the regularity
of the will on the face of it and to come to the conclusion on the
question of attestation; that the court is not powerless to declare
in favour of the Will where attesting witnesses or some of them
prove hostile and unreliable, if from other evidence on recorded
and the circumstances taken as a whole, the court is in a
position to hold that the Will was duly executed and attested;
and that inadequacy of the evidence of the attesting witnesses
should not stand in the way of granting probate.
16. The above two Division Bench decisions in Ittoop
Varghese and Chacko are followed in the decision of this Court
in Venugopalan (supra), in which the learned judge, after
referring to various texts on the law of evidence by famous
authors, succinctly laid down the scope of Section 71 of the
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Indian Evidence Act. It is held that the proof of codicil is in the
same manner as in the case of proof of Will, and S.68 of the
Indian Evidence Act will apply; that however, if the attesting
witnesses for reasons best known to them chose not to support
the propounder in proving the due execution of the Will, it is not
as if that the propounder has no other option; and that S.71
come to his aid and enables him by circumstantial evidence or
other evidence to prove the due execution.
17. In the decision of the Hon'ble Supreme Court in Janki
Narain Bhoir (supra) it is held that S.71 of the Evidence Act
corresponding to Section 70 of BSA is in the nature of a
safeguard to the mandatory provisions of S.68 of Evidence Act
corresponding to S.67 of BSA, to meet a situation where it is not
possible to prove the execution of the Will by calling attesting
witnesses, though alive; that it is a permissive and enabling
provision and that S.71 of the Evidence Act can only be
requisitioned when the attesting witnesses who have been
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called failed to prove the execution of the Will by reason of either
denying their own signatures or denying the signature of the
testator or having no recollection as to the execution of the
document. It is further held that Section 71 has no application
in case where one attesting witness who alone has been
summoned, has failed to prove the execution of the will and
other attesting witnesses, though are available to prove the
execution of the same has not been summoned before the
Court. The decision in Janki Narain Bhoir (supra) is followed
by this Court in the decision in Devassykutty (supra), in which
it is held that only one of the attesting witnesses needs to be
called upon to give evidence regarding attestation and
execution of the Will is qualified by the fact that the said witness
should not only speak about the execution of the document but
also about the attestation by both the witnesses; that the
attesting witness called upon to give evidence must speak about
his own attestation and the attestation by the other witness also
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and that if he does not do so, the attestation of the deed could
not be said to be duly proved unless the other attesting witness
is also called upon to speak about the same.
18. This Court in Mannarakkal Madhavi (supra) held that
more than one witness at the same time is not necessary under
Section 63(c) of the Indian Succession Act; that if one attesting
witness can prove the execution of will in terms of S.63(c),
namely, attestation by two attesting witnesses in the manner
contemplated therein, examination of the other witness can be
dispensed with; that Section 63(c) nowhere says both attesting
witnesses must be present at the same time or that they must
sign simultaneously or that they must also speak the attestation
by other witness; that when one attesting witness is unable to
speak of the attestation by the other witness, the propounder
can examine the other attesting witness to satisfy the mandatory
requirement under the said section; that the argument that both
attesting witness must also speak attestation by the other
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witness is liable to be rejected; that even if the attesting
witnesses do not support the propounder's case, the
propounder can adduce other items of evidence or rely on
circumstances to prove that the will was duly executed by the
testator; and that inadequacy of the evidence of the attesting
witness would not prevent the court from granting reliefs
provided there, are other pieces of evidence to substantiate the
case of the propounder.
19. In the decision of this Court in Varghese (supra) cited by
the counsel for the appellant, it is held that where the evidence
of the attesting witnesses is vague, indefinite, doubtful, or even
conflicting upon material points, the court is entitled to consider
all the circumstances of the case and judge collectively
therefrom whether the requirement of the statute has been
complied with, it is possible for the Court on an examination of
the entire circumstances and evidence to come to a conclusion
that recollection of the witnesses is at fault or that their evidence
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is suspicious or that they are willfully misleading the court and
therefore the court obliged to pronounce in favour of the will
regarding the testimony of the witness. In this decision, the
learned judge has followed the decision of the Hon'ble Supreme
Court in Jagdish Chand Sharma (supra).
20. The decision in Jagdish Chand Sharma (supra) is cited
by both sides to substantiate their contentions. The Hon'ble
Supreme Court insisted on a strict interpretation of Section 71
of the Evidence Act corresponding to Section 70 of BSA. It is
held that Section 71 cannot be invoked as substitute to
mandatory requirements of Section 68 of Evidence Act
corresponding to Section 67 of BSA read with Section 63(c) of
Succession Act; that if the testimony evinces a casual account
of the execution and attestation of the document disregardful of
truth, and thereby fails to prove these two essentials as per law,
the propounder cannot be permitted to adduce other evidence
under cover of Section 71; that such a sanction would not only
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be incompatible with the scheme of Section 63 of the
Succession Act read with S.68 of the Evidence Act
corresponding to S.67 of BSA but also would be extinctive of the
paramountcy and sacrosanctity thereof, a consequence, not
legislatively intended and that if the evidence of the witnesses
produced by the propounder is inherently worthless and lacking
in credibility, S.71 of Evidence Act corresponding to S.70 of BSA
cannot be invoked to bail the propounder out of the situation to
facilitate a roving pursuit.
21. Following the decision of the Hon'ble Supreme Court in
Jagdish Chand Sharma (supra), this court has laid down the
following propositions of law in relation to Section 71 of the
Indian Evidence Act corresponding to Section 70 of BSA in the
decision in Mohandas. N.C(supra) cited by the counsel for the
respondent.
" VI. S.71 of the 1872 Act, is in the form of a safeguard to the
mandatory provision of S.68 to cater to a situation where it
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is not possible to prove the execution of the Will by calling
the attesting witnesses though alive, i.e. if the witnesses
either deny or do not recollect the execution of the Will. Only
in these contingencies by the aid of S.71, other evidence
would suffice.
VII. S.71 of Act 1872 has no application in a case where one
attesting witness who alone had been summoned fails to
prove the execution of the Will and the other attesting
witness though available to prove the execution of the same,
failed to be examined.
VIII. S.71 of the Act 1872 is meant to lend assistance and
would come to the rescue of a party who had done his best,
but driven to a state of helplessness and impossibility and
cannot be let down without any other opportunity of proving
the due execution of the document by other evidence.
IX. S.71 cannot be invoked so as to absolve the party of his
obligation Under S.68 read with S.63 of the Act and to
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liberally allow him, at his will or choice, to make available or
not, necessary witness otherwise available and amenable to
jurisdiction of the Court. No premium upon such omission or
lapse so as to enable him to give a go - bye to the mandates
of law relating to proof of execution of a Will, as
contemplated by the statutory provisions.
X. S.71 of the 1872 Act has to be necessarily accorded a strict
interpretation. The two contingencies permitting the play of
this provision, namely, denial or failure to recollect the
execution by the attesting witness produced, thus a fortiori
has to be extended a meaning to ensure that the limited
liberty granted by S.71 of 1872 Act does not in any manner
efface or emasculate the essence and efficacy of S.63 of the
Act and S.68 of 1872 Act.
XI. The distinction between failure on the part of an attesting
witness to prove the execution and attestation of a Will and
his or her denial of the said event or failure to recollect the
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same, has to be essentially maintained. Any unwarranted
Indulgence, permitting extra liberal flexibility to these two
stipulations, would render the predication of S.63 of the Act
and S.68 of the 1872 Act, otiose.
XII. The benefit of S.71 of the 1872 Act to be available to the
propounder only if the attesting witness/witnesses, who
is/are alive and is/are produced and in clear terms either
denies/deny the execution of the document or cannot
recollect the said incident. Not only, this witness/witnesses
has/have to be credible and impartial, the evidence adduced
ought to demonstrate unhesitant denial of the execution of
the document or authenticate real forgetfulness of such fact.
If the testimony evinces a casual account of the execution
and attestation of the document disregardful of truth, and
thereby fails to prove these two essentials as per law, the
propounder cannot be permitted to adduce other evidence
under cover of S.71 of the 1872 Act.
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XIII. If the evidence of the witnesses produced by the
propounder is inherently worthless and lacking in credibility,
S.71 of Act 1872 cannot be invoked to bail the propounder
out of the situation to facilitate a roving pursuit. In absence
of any touch of truthfulness and genuineness in the overall
approach, this provision, which is not a substitute of S.63(c)
of the Act and S.68 of the 1872 Act, cannot be invoked to
supplement such failed speculative endeavour.
XIV. S.71 of the 1872 Act, even if assumed to be akin to a
proviso to the mandate contained in S.63 of the Act and S.68
of the 1872 Act, it has to be assuredly construed
harmoniously therewith and not divorced therefrom with a
mutilative bearing.
22. In view of the aforesaid authoritative pronouncements, the
law on the point is well settled. When one of the attesting
witnesses is examined, and he denies or does not recollect the
execution of the document, the second attesting witness is to be
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examined if he is alive and capable of giving evidence. If the
second attesting witness also denies or does not recollect the
execution of the document, the propounder can resort to the aid
of Section 70 of the BSA. If the attesting witness deposes that
he has seen the testator signing the document, but his evidence
is deficient to prove compliance with Section 63(c) of the Indian
Succession Act, such deficiency could not be filled up by
resorting to Section 70 of the BSA. It is for the court to decide
whether it is a case of denial or deficiency of evidence, weighing
the evidence of attesting witnesses. If the attesting witnesses
does not deny the execution, but purposefully give deficient
evidence in order to extend undue help to the parties who
challenge the document either under their influence or
otherwise, the Court is not powerless in such situation. Strict
compliance of Section 63(c) of the Indian Succession Act is
mandatory to prove a Will. It should not be diluted by resorting
to Section 70 of the BSA. If the benefit under Section 70 of the
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BSA is extended in all cases where the execution of the will is
not proved by the evidence of the attesting witness, the very
purpose for which Section 63(c) of the Indian Succession Act is
enacted would be defeated. When the evidence of the attesting
witness is deficient to meet the requirements under Section
63(c), it is for the Court to assess the evidence of the attesting
witness and come to a conclusion that there is no malafide
intention on the part of the attesting witnesses purposefully to
help the objectors of the document. If the Court finds that there
is malafide intention on the part of the attesting witnesses
purposefully to extend help to the objectors of the document,
such evidence of the attesting witnesses is to be treated as a
case of denial of execution of the document, and the
propounder is to be permitted to resort to the aid of Section 70
for other evidence for the proof of execution of the document.
Other evidence can be given by the persons who were present
at the time of execution of the Will, including the Registrar who
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registered the document.
23. In view of the legal propositions laid down in the above
authoritative pronouncements let me examine whether DW2
and 3 have denied the execution of Ext.B2 Will in order to attract
Section 70 of the BSA.
24. When DW2 was examined in the chief examination, he
stated that he saw Ammalu Amma signing the Will, that he saw
her signing and affixing a thumb impression at the Registrar's
Office, and that he signed as witness for attesting the signature
of Ammalu Amma. But in cross-examination, he stated that he
had not seen Ammalu Amma earlier signing the document, that
he did not know who were the other persons available at the
time of signing, that he does not know whether Ammalu Amma
signed the document with sound mind; and that he signed as a
witness after seeing Ammalu Amma signing the document. In
the evidence of DW1, at one stage in the cross-examination, he
denies the execution of Ext.B2 Will by stating that he has not
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seen Ammalu Amma signing earlier. On account of his
evidence that he did not know as to who were present at the
time of signing his evidence is not sufficient to prove the
attestation of the second attesting witness/DW3. Since DW2
has stated that he has not seen Ammalu Amma signing earlier,
it could be concluded that he has denied the execution of Ext.B2
Will.
25. When DW3 was examined, though he admitted that he is
the second witness in Ext.B2 and he is the person who has
signed therein, he stated that he knew about the Will executed
by Ammalu Amma only when Ext.B2 was handed over to him.
In the cross-examination, he stated that he has not seen
anybody signing the document. So DW3 also did not give
evidence to the effect that he has seen Ammalu Amma signing
the document. So, the evidence of DWs 2 and 3 in substance is
a case of denial denying the execution of Ext.B2 Will. It is not a
case of deficiency of the evidence to prove the requirements of
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Section 63(c) of the Indian Succession Act. In view of the denial
of execution of Ext.B2 Will by DWs 2 and 3, the defendants are
entitled to seek the benefit of Section 70 of the BSA to prove
Ext.B2 Will by other evidence.
26. Next question is whether there are other evidence to
prove the execution of Ext.B2 Will. The defendants are mainly
relying on the evidence of DW1. The contention of the learned
counsel for the respondent/plaintiff is that DW1 is a beneficiary
of the Will, and hence, his evidence could not be relied on.
Merely because DW1 is a beneficiary of the Will, it could not be
said that his evidence is to be discarded. If the evidence of DW1
is quite natural and reliable, the Court is fully justified in relying
on the evidence of DW1 under Section 70 of the BSA.
27. DW1 has sworn Proof Affidavit on 09.03.2007, and on the
very same day, he was cross-examined. It is after the evidence
of DW1 on 09.03.2007 that DW2 was examined on 19.03.2007,
and DW3 was examined on 22.03.2007. So, at the time of
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examination of DW1, it could not be said that he had knowledge
that Dws 2 and 3 would deny the execution of Ext.B2 Will. The
evidence of DW1 is that he also went along with Ammalu Amma
to the document writer's office. Since DW1 is a grandson of
Ammalu Amma, it is probable that DW1 also accompanied
Ammalu Amma to the office of the document writer for the
execution of Ext.B2 Will. The specific evidence of DW1 is that
the plaintiff had also come along with them on the previous day
of registration and it is the plaintiff who had given all the
instructions for executing the Will. It is the evidence of DW1 that
the scribe Ramapanicker read over Ext.B2 Will to Ammalu
Amma and Ammalu Amma signed Ext.B2 Will after
understanding the contents of the same in the presence of DWs
2 and 3. DW1 specifically stated that he has seen Ammalu
Amma, witnesses, and the scribe signing Ext.B2 Will. He also
stated that the Will was executed with respect to the plaint
schedule property since the plaintiff insisted that the first
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defendant should get the property only after the death of
Ammalu Amma and that the important person behind the
execution and registration of Ext.B2 Will is the plaintiff himself.
Even though DW2 was extensively cross-examined, the plaintiff
could not make out anything to discredit the evidence of DW1.
28. Ext.B2 is a registered Will executed in the year 1980.
Normally, registration of the Will shall not be used as proof of
execution of the Will. In the facts and circumstances of the
present case, the registration of the Will coupled with the
presumption of official acts under Section 114(e) of the Indian
Evidence Act is also one of the material factors to find in favour
of due execution of Ext.B2 Will. Ammalu Amma died on
02.05.1995. The plaintiff brought the suit for partition only in the
year 2005. If the plaintiff had any right over the plaint schedule
property, the plaintiff would have brought the suit for partition
within a reasonable time after the death of Ammalu Amma.
There is no explanation from the part of the plaintiff for the delay
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of nearly ten years in filing the suit for partition. It is proved
before the Court that the contention of the plaintiff that Ammalu
Amma did not have sound disposing capacity at the time of
execution of the Will is not correct. Ext.A1 is the certified copy
of Ext.B5 prepared through scribe Ramapanicker. The plaint
schedule property was transferred in favour of Ammalu Amma
by the plaintiff as per Ext.B5 about three months before the
execution of Ext.B2 Will. If Ammalu Amma did not have a sound
mind, the plaintiff would not have executed Ext.B5 in her favour.
The plaintiff does not have a case that Ammalu Amma suddenly
became mentally unsound after the execution of Ext.B5.
Exts.B2 and B5 are prepared by the same scribe. The plaintiff,
as PW1, even pretended ignorance about Ramapanicker, who
prepared Exts.B2 & B5. At any rate, he could not plead
ignorance of the person who prepared Ext.B5 executed by him.
It would reveal that the plaintiff/PW1 was not deposing the truth
before the court. If Ammalu Amma wanted to execute Ext.B2
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Will secretly without the knowledge of the plaintiff, she would not
have approached the same scribe who prepared Ext.B5, who is
known to the plaintiff. The said evidence would clearly indicate
that the plaintiff, in all probability, participated in the preparation
of Ext.B2 Will as deposed by DW1.
29. The contention of the plaintiff is that he came to know
about Ext.B2 Will only when he received Ext.A4 Reply Notice
dated 10.01.2005 from the first defendant in reply to Ext.A3
Notice dated 05.01.2005 sent by the plaintiff to the first
defendant. In the evidence, DW1 has specifically stated that
Ext.A4 is not the reply sent by the first defendant to the plaintiff.
The reply sent by the first defendant to the plaintiff is a reply
handwritten by his younger brother. There is no evidence to
prove that Ext.A4 is the reply sent by the first defendant to the
plaintiff. Ext.A3 is a handwritten Notice. Ext.A4 is a typewritten
notice alleged to have been sent by the first defendant to the
plaintiff. It is difficult to believe that the first defendant sent a
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typewritten reply notice by herself to the plaintiff, who is her
brother. It probabilize that the plaintiff wanted to avoid the
questions regarding hand writing of the person who prepared it.
Hence, the contention of the plaintiff that he came to know about
Ext.B2 Will only when he received Ext.A4 Reply Notice is also
very much doubtful.
30. Hence, in view of the evidence of DW1 and attending facts
and circumstances of the case, I am of the considered view that
the other evidence, as required under Section 70 of the BSA, is
available to prove the execution of Ext.B2 Will even though the
attesting witnesses denied execution of Ext.B2 Will. I hold that
the plaint schedule property which belonged to Ammalu Amma
is not available for partition between the plaintiff and the
defendants as Ammalu Amma had executed Ext.B2 Will with
respect to the plaint schedule property in favour of the first
defendant and, hence, on the death of Ammalu Amma the first
defendant became the absolute owner of the plaint schedule
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property.
31. The substantial questions of law No. I & IV are answered
in the negative, and the substantial questions of law II and III
are answered in the affirmative, all in favour of the appellant. In
view of the answers to substantial questions of law, this Appeal
is allowed without cost, setting aside the judgment and decree
passed by the Trial Court, which is confirmed by the First
Appellate Court and dismissing O.S.No.258/2005 filed by the
respondent/plaintiff in the Munsiff's Court, Ernakulam.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
Jma/shg
