Dr.K.R. Leela Devi vs K.R. Rajaram
2025 Latest Caselaw 6405 Ker

Kerala High Court

Dr.K.R. Leela Devi vs K.R. Rajaram on 29 May, 2025

Author: Sathish Ninan

Bench: Sathish Ninan

RFA No.715/2013

                                  1

                                                   2025:KER:36448

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

              THE HONOURABLE MR. JUSTICE SATHISH NINAN

                                  &

             THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR

     THURSDAY, THE 29TH DAY OF MAY 2025 / 8TH JYAISHTA, 1947

                        RFA NO. 715 OF 2013

         AGAINST THE JUDGMENT DATED 17.08.2013 IN OS NO.990 OF

2011 OF III ADDITIONAL SUB COURT, ERNAKULAM

APPELLANT/PLAINTIFF IN O.S:

             DR.K.R. LEELA DEVI
             W/O.P.A.RAMACHANDRAN AND D/O.K.S.RAGHAVAN,
             HON.SENIOR CONSULTANT DEPT. OF LABORATORY MEDICINE,
             KIMS HOSPITAL, THIRUVANANTHAPURAM AND RESIDING AT
             3D, SANSKRITI APARTMENTS, PANDIT COLONY, KAWDIAR,
             THIRUVANANTHAPURAM.


             BY ADVS.
             SRI.R.LAKSHMI NARAYAN
             SMT.R.RANJANIE




RESPONDENTS/DEFENDANTS IN O.S.:

     1       K.R. RAJARAM
             S/O.K.S.RAGHAVAN, RETIRED CTE, RESIDING AT 'RAGHAVA
             NIVAS', KARIMPATTA CROSS ROAD, ERNAKULAM,
             KOCHI 682 016 (DIED)

     2       CAPT. RETD DR.K.R.SUKUMARAN (DIED)
             S/O.K.S.RAGHAVAN, RESIDING AT 'DEEPAM', BTS ROAD,
             ELAMAKKARA, ERNAKULAM, KOCHI 682 026.
 RFA No.715/2013

                                2

                                                  2025:KER:36448


     3      R.RAGHAVAN (DIED)
            S/O.K.RAMACHANDRAN, RESIDING AT RAGHU BHAVAN, TAGORE
            NAGAR, VAZHUTHACADU, THIRUVANANTHAPURAM, PIN 695
            014.(DIED)

     4      R.JAYACHANDRAN
            S/O.K.RAMACHANDRAN, RESIDING AT RAGHU BHAVAN, TAGORE
            NAGAR, VAZHUTHACADU, THIRUVANANTHAPURAM, PIN 695
            014.

     5      R.RAJESH
            S/O.K.RAMACHANDRAN, RESIDING AT 'RAGHU BHAVAN',
            TAGORE NAGAR, VAZHUTHACADU, THIRUVANANTHAPURAM, PIN
            695 014.

 ADDL.R6    SUNANDA RAJARAM
            AGED 81 YEARS
            W/O. K.R. RAJARAM, RETIRED CTE, RESIDING AT 'RAGHAVA
            NIVAS', KARIMPATTA CROSS ROAD, ERNAKULAM,
            KOCHI - 682016

 ADDL.R7    SUCHITHRA
            AGED 59 YEARS
            D/O. K.R. RAJARAM, RETIRED CTE, RESIDING AT 'RAGHAVA
            NIVAS' KARIMPATTA CROSS ROAD, ERNAKULAM, KOCHI -
            682016

 ADDL.R8    RAGHESH
            AGED 57 YEARS
            S/O K.R. RAJARAM, RETIRED CTE, RESIDING AT 'RAGHAVA
            NIVAS' KARIMPATTA CROSS ROAD, ERNAKULAM, KOCHI -
            682016
             (LEGAL HEIRS OF THE DECEASED R1 ARE IMPLEADED AS
            ADDL R6 TO R8, AS PER DATED 16.08.2023 IN I.A.NO.
            01/2023).

 ADDL.R9    DR.LALITHA C N, W/O DR.K.R.SUKUMARAN, AGED ABOUT 86
            YEARS, RESIDING AT 'DEEPAM', BTS ROAD, ELAMAKKARA,
            ERNAKULAM, KOCHI 682026

 ADDL.R10 DR.GOPIKA K S, D/O DR.K.R.SUKUMARAN,RESIDING AT
          'DEEPAM', BTS ROAD, ELAMAKKARA, ERNAKULAM, KOCHI
          682026
 RFA No.715/2013

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                                                  2025:KER:36448


 ADDL.R11 DEEPA K S, D/O DR.K.R.SUKUMARAN,RESIDING AT
          'DEEPAM', BTS ROAD, ELAMAKKARA, ERNAKULAM, KOCHI
          682026

            IT IS RECORDED THAT THE ADDITIONAL RESPONDENTS 9 TO
            11 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE
            DECEASED   2ND  RESPONDENT   AS   PER  ORDER   DATED
            24.01.2025 IN I.A.NO.1 OF 2024 IN R.F.A.NO.715 OF
            2013.

 ADDL.R12 ASHA RAGHAVAN, W/O R.RAGHAVAN, AGED ABOUT 69 YEARS,
          RESIDING AT 'RAGHU BHAVAN', TAGORE NAGAR,
          VAZHUTHACADU, THIRUVANANTHAPURAM, PIN 695014

 ADDL.R13 INDULEKHA RAGHAVAN, D/O R.RAGHAVAN, AGED ABOUT 43
          YEARS, RESIDING AT 'RAGHU BHAVAN', TAGORE NAGAR,
          VAZHUTHACADU, THIRUVANANTHAPURAM, PIN 695014

 ADDL.R14 NEERAJA R,D/O R.RAGHAVAN, AGED ABOUT 34 YEARS,
          RESIDING AT 'RAGHU BHAVAN', TAGORE NAGAR,
          VAZHUTHACADU, THIRUVANANTHAPURAM, PIN 695014

            IT IS RECORDED THAT THE ADDITIONAL RESPONDENTS 12 TO
            14 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE
            DECEASED 3RD RESPONDENT AS PER ORDER DATED
            24.01.2025 IN I.A.NO.1 OF 2024 IN R.F.A.NO.715 OF
            2013.

            BY ADVS.
            NIRMAL.S
            VEENA HARI
            K.C.ELDHO
            S.BIJILAL
            ALMAJITHA FATHIMA
            HIMA JOSEPH



      THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
20.05.2025, THE COURT ON 29.05.2025 DELIVERED THE FOLLOWING:
 RFA No.715/2013

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                                                                   CR

                                    JUDGMENT

P.Krishna Kumar, J.

The appellant filed a suit for partition of two

items of properties against her brothers and the

children of deceased siblings. The first defendant,

the appellant's eldest brother, contested the suit,

claiming that one of the properties--a residential

building and 14.875 cents of appurtenant land--belongs

to him under a Will executed by their mother.

Accepting the first respondent's contentions, the

trial court decreed the suit in part, excluding the

said residential plot. This appeal is preferred

against that judgment.

2. For the sake of convenience, the parties will

hereinafter be referred to as they were arrayed in the

suit. The skeletal facts necessary for the disposal of

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this appeal are as follows: The plaintiff, defendants

1 and 2, the late Smt. K.R. Indira, and the late Sri

K.R. Jayasanker, are the children of Sri. K.S.

Raghavan and Smt. P. Bhavani. Raghavan served as the

Secretary to the Government of the erstwhile Thiru-

Kochi State and died in a plane crash in 1952. The

plaintiff is a medical doctor who had served at Apollo

Hospital, Chennai, and KIMS Hospital,

Thiruvananthapuram. The first defendant retired as the

Chief Technical Examiner under the government, having

previously served as a Chief Engineer. The second

defendant is a surgeon who held the rank of Captain in

an Army hospital. After the death of K.S. Raghavan,

his wife P. Bhavani and the children had executed a

partition deed consolidating all the properties left

behind by K.S. Raghavan, as well as the properties

belonging to P. Bhavani, into their common stock. A

residential building and the land appurtenant to it

had been allotted to K.R. Jayasanker in the said

partition deed and the said properties are shown in

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the plaint as B schedule property. Later, on

30.04.1990, Jayasanker died intestate and issueless.

Then the plaint B schedule property devolved upon the

mother Bhavani, as per the law of succession

applicable to the parties. Subsequently, on 27.08.1997

Smt. P. Bhavani also passed away.

3. At the time of her death, Bhavani left behind

a total extent of 171.25 cents of wetland, which are

described in the plaint A schedule as item Nos. 1 to

5. The plaintiff and the second defendant have pleaded

that, besides the plaint A schedule wetlands, the B

schedule residential plot is also available for

partition among the legal heirs of Smt. Bhavani, as

she died intestate.

4. There is no dispute as to the partibility of

plaint A schedule lands. However, the first defendant

asserted that late Bhavani had executed her last Will

on 6.4.1988 (Ext.B2) at the Sub Registrar Office,

Chathamangalam, Thiruvananthapuram, pertaining to the

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plaint B schedule residential plot, and hence it is

not partible.

5. The first defendant further pleaded that the

plaintiff and the legal heirs of late Indira had

executed a general Power of Attorney in his favour to

sell the plaint A schedule property, but the sale

failed due to the second defendant's non-cooperation.

He asserted that after Bhavani's death, her legal

heirs knew that she had executed a Will in his favor,

and the institution of the suit was only an experiment

made 21 years after Bhavani's death. He received a

photocopy of the Will from his mother, and after her

death, he mutated the property in his name. The

original Will was kept at the residence of Sri. K.

Ramachandran (husband of his sister- late Indira),

where Bhavani had been staying, but it could not be

traced out after her death. The defendant emphasized

that he was not involved in the execution of the Will,

of which the arrangements for execution was done by

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K.Ramachandran. He further stated that late Jayasanker

had rented portions of the plaint B schedule property

to three tenants, two vacated on receiving ex gratia

payments, and the third tenant was evicted through a

legal proceeding instituted by the first defendant

subsequent to the death of Bhavani.

6. The plaintiff in his replication contended that

she was unaware of the execution of the Will. At the

time of the alleged execution of the Will, their

mother lacked the physical and mental capacity to do

so due to age-related illness and a stroke which left

her nearly bedridden since 1986. She also suffered

from macular degeneration, impairing her ability to

read. The Will was the result of coercion and undue

influence exerted by the first defendant and was not

executed out of the free will of their mother. The

execution and registration of the Will are therefore,

suspicious. The litigation mentioned in the written

statement for evicting the tenant from the plaint B

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schedule property was initiated by the first defendant

as a co-owner.

7. We have heard Sri.R.Lakshmi Narayan, the

learned senior counsel appearing for the plaintiff,

Sri.K.C.Eldo, the learned counsel appearing for the

second defendant and Sri.Nirmal S., the learned

counsel appearing for the first defendant.

8. The genuineness and validity of the Will was

seriously challenged by the learned counsel on the

following grounds: (a) There was no mention of the

other legal heirs of Bhavani in the Will, and no

reason was assigned for excluding them from the

bequest. (b) The attestors of the Will were not

examined before the court to satisfy the requirement

of Section 63(c) of the Indian Succession Act and

Section 68 of the Indian Evidence Act. (c) The

purported attestors of the Will are admittedly stock

witnesses, rendering the execution doubtful. (d)

Although the scribe of the Will (DW5) was examined

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before the court, he lacked animo attestandi, and thus

the legal requirements under the aforementioned

statutory provisions remain unfulfilled. (e) There is

no proof before the court that the attestors of the

Will are dead. Neither was any summons issued to them,

nor was the procedure prescribed under Order XVI Rule

10 of the Code of Civil Procedure followed. (f) The

first defendant failed to dispel the misgivings

surrounding the execution and registration of the

Will.

9. The learned counsel appearing for the plaintiff

and the second defendant relied on the following

decisions to substantiate their contentions: N.Kamalam

(Dead) and Another v. Ayyasamy and Another [(2001) 7

SCC 503], Babu Singh and others v. Ram Sahai alias Ram

Singh [(2008) 14 SCC 754],Lilian Coelho & Ors. v. Myra

Philomena Coalho [(2025) 2 SCC 633],H.Venkatachala

Iyengar v. B.N.Thimmajamma and Others (AIR 1959 SC

443),Murthy & Ors. v. C.Saradambal & Ors. [(2021) 14

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SCR 836] and M.L.Abdul Jabbar Sahib v. M.V.Venkata

Sastri and Sons and Others etc. (AIR 1969 SC 1147).

10. Sri.Nirmal S., the learned counsel

appearing for the first defendant defended the

impugned judgment contending that the trial court,

having had the advantage of observing the demeanor of

the parties and the witnesses, meticulously

considered all contentions raised by the plaintiff and

the second defendant, and thereafter found that the

Will is genuine and that the statutory requirements

for the execution, attestation and registration of a

Will were duly complied with. Referring to the

decisions in Pentakota Satyanarayana and Others v.

Pentakota Seetharatnam and Others [(2005) 8 SCC 67]

and V.Kalaivani v. M.R.Elangovan [(2024) Supreme

(Online)(MAD)18778], the learned counsel further

contended that the registration of the Will strongly

supports its genuineness, as a presumption of

regularity arises by virtue of such registration, and

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that the mere fact that the witnesses of the Will are

stock witnesses does not cast doubt on its

genuineness. The learned counsel further argued that

the plaintiff has no valid grounds to allege that the

first defendant disregarded her request for partition,

as she had earlier executed a general power of

attorney in his favour for selling the lands described

in Schedule A of the plaint. To demonstrate that the

first defendant had filed a rent control petition to

evict the tenant from the residential plot, the order

passed by the rent control court was produced as Ext.

B6. From that order, it is evident that the first

defendant had submitted a copy of the Will to the

court as early as in the year 1992. Since the

plaintiff and the second defendant maintain that the

litigation was initiated on behalf of all parties and

that they were aware of it, it is evident that they

had knowledge of the Will and did not object to it

until 2011, when the suit was filed, he urged.

Furthermore, the learned counsel emphasized that since

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the first defendant has been residing in the B-

schedule property ever since Bhavani's death and

effected mutation in his name in 1991, all parties

clearly knew of his title. According to him, the

institution of the suit 21 years after Bhavani's death

is only a speculative challenge.

11. The key question to be considered in

this appeal is whether the Will is genuine and valid.

The genuineness of a Will and the factum of its

execution or registration cannot be determined solely

on the evidence produced by the propounder. In

addition to oral and documentary evidence, the court

must consider the surrounding circumstances, inherent

improbabilities, and the nature and contents of the

document. Mere registration of the Will does not

absolve the propounder from the obligation to prove

the Will as required by law. It is also his duty to

dispel all suspicious circumstances related to the

execution of the Will, besides showing that at the

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relevant point of time, the testator was of sound

disposing state of mind and that the testator had

signed the Will understanding the effect of the

dispositions in it, and that the Will was attested by

at least two witnesses. The mode of proof of a Will is

in the manner provided in Section 68 of the Indian

Evidence Act. It would also be idle to expect proof of

the above facts with mathematical certainty in the

matter of execution and registration of the Will, and

thus, the test to be applied should be that of the

satisfaction of a prudent mind in such matters.

12. In the light of the aforementioned general

principles of law, let us now examine the evidence to

determine whether the Will in question meets the legal

requirements. To establish the due execution,

registration, and attestation of the Will, the first

defendant relies on the testimony of DW5, the scribe

of Ext. B2. DW5 stated that Sri.Bhaskaran Nair, a

retired officer from the Water Authority department,

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who had been working under K. Ramachandran, brought

Bhavani to his office for the purpose of executing the

Will. Acting on Bhavani's instructions and referring

to the copy of the title deed provided by her, DW5

prepared a draft of the Will, which Bhavani read and

approved. Then Bhavani signed the fair copy of the

Will. At that time, the attesting witnesses--

Sri.Narayanan Nair, son of Parameswaran Pillai, and

Sri.Raghavan Pillai, son of Raman Pillai--were present.

The execution of the Will by Bhavani was witnessed by

the said attesting witnesses, who also signed the Will

in the presence of Bhavani and the DW5. Then DW5 also

signed the Will in his capacity as the scribe.

13. DW5 further deposed that subsequently,

Bhavani produced the Will before the Sub-Registrar in

the presence of DW5. The Sub-Registrar verified the

contents of the Will from Bhavani and confirmed its

execution. Bhavani was of sound mind and possessed

testamentary capacity at the time of executing the

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Will. He identified Ext. B2 as the attested copy of

the Will, along with the signatures of Bhavani,

himself, and the attesting witnesses, as well as the

endorsement, signature, and seal of the Sub-Registrar.

He also identified Ext. B3, an attested photocopy of

the filing sheet of the Will, bearing Bhavani's

signature. Ext. B4, the attested copy of the thumb

impression register related to the Will, containing

Bhavani's signature and thumb impression, was also

marked through him. He testified that the witnesses,

Narayanan Nair and Raghavan Pillai were known to him.

DW5 further stated that both of them subsequently

passed away.

14. During cross-examination, he admitted that he

had no prior acquaintance with Bhavani and he did not

verify any identity document to confirm her identity.

Bhavani had visited his office three times in

connection with the execution of the Will. The

attesting witnesses were arranged by DW5, who

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regularly used their services for similar

documentation purposes. These witnesses frequently

participated in the execution of documents and were

paid for their services. DW5 did not ascertain whether

the wives or children of the attesting witnesses were

alive, nor was he aware of their place of residence.

15. The plaintiff and the first defendant gave

evidence as PW1 and DW1 respectively, in support of

their pleadings. Both reiterated that their mother

lacked testamentary capacity at the time of execution

of the Will, having been bedridden due to multiple

ailments following a stroke suffered in 1986. DW2, the

wife of the second defendant, who is an Assistant

Surgeon in the medical service, also gave evidence

consistent with this version. However, their cross-

examination revealed that no medical records are

available to substantiate that Bhavani suffered from

any ailment severe enough to impair her testamentary

capacity.

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16. DW3, the first defendant, also testified in

support of his pleadings. He stated that from 1987 to

1990, he had been residing in a rented house in

Thiruvananthapuram, during which period, including the

time of the execution of the Will, Bhavani was living

with Sri K. Ramachandran. According to him, Bhavani

remained in sound physical and mental condition,

notwithstanding a mild heart attack she had in 1977

and a condition diagnosed as ischemia shortly before

her death.

17. DW4, the son of Sri K. Ramachandran and the

late Indira, likewise supported the case of the first

defendant. He deposed that he had once accompanied

Bhavani to the document writer's office and confirmed

her sound disposing state of mind at the time of

executing the Will.

18. Let us now consider the crucial defence

raised by the plaintiff and the second defendant to

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assail the legality of the Will, namely, the failure

to prove the Will in accordance with Section 68 of the

Indian Evidence Act.

19. As per Section 67 of the Indian Evidence

Act, if a document is alleged to be signed by a

person, it must be proved that the signature on the

document is in that person's handwriting. Section 68

of the Evidence Act, inter alia, provides that if the

document is a Will, it shall not be used as evidence

until at least one attesting witness is called to

prove its execution, provided such a witness is

available. It reads:

"68. Proof of execution of document required by law to be attested - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the

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execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specially denied."

However, Section 69 of the Evidence Act provides

the procedure to be followed when the attesting

witnesses cannot be examined due to any of the

circumstances specified in Section 68. It reads:

"69. Proof where no attesting witness found - If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person."

Thus, when no attesting witness can be found, it

must be proved that the attestation by at least one

attesting witness is in his handwriting and that the

signature of the person executing the document is in

that person's handwriting. Reading Sections 68 and 69

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of the Evidence Act together, it is clear that if the

propounder succeeds in proving that the attesting

witnesses are dead, the Will can be proved by

establishing that the signature of the executant and

the attestation by at least one witness are in their

respective handwritings.

20. Therefore, a witness cited to prove a

Will under Section 69 of the Evidence Act need not

necessarily be a person who had seen the executant and

attesting witnesses affixing their signatures; it is

sufficient to prove that the signatures were in the

handwriting of the respective persons. This is the

essential distinction between the mode of proof under

Section 68 and Section 69 of the Indian Evidence Act.

This court has taken a similar view in C.G. Raveendran

v. C.G. Gopi (AIR 2015 Ker 250).

21. In a case where the witness cited to prove

the Will under Section 69 of the Evidence Act

establishes that he had witnessed the testator and the

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witnesses signing the Will, it is sufficient proof

that the attestation by the attesting witnesses is in

their handwriting and that the signature of the

testator is in that person's handwriting. It

constitutes sufficient compliance with Section 69.

When the witness deposes that he saw the executant and

the attesting witnesses sign the document in question,

it amounts to the proof required under Section 69. In

the above context, it is also relevant to note the

opinion of the Division Bench of the Patna High Court

in Haradhan Mahatha and Others v. Dukhu Mahatha (AIR

1993 Pat 129), where it is held as follows:

"Identification of signature is not necesary to prove a document, as required under Section 69 of the Act. Identification of signature is necessary only if document is not signed in presence of the witness. In a case, where document has been executed in presence of a witness, it is not necessary for him to say that he identifies the signature. It is sufficient for the witness, if he says that the document in question produced in Court, to which his attention was drawn, was executed and attested in his presence. Therefore, I

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am clearly of the view that the requirement of Section 69 of the Act has been complied with and the Will in question has been rightly admitted into evidence by trial Court."

22. While Section 68 of the Evidence Act deals

with the mode of proof of execution of documents

required by law to be attested, Section 69 provides an

alternative procedure for proving such a document when

the mode provided in Section 68 cannot be resorted to

in certain circumstances. Nevertheless, Section 69

can be invoked only on satisfaction of the condition

mentioned therein. Once the document is proved in the

manner provided in Section 69, it amounts to the proof

of due execution and attestation of that document.

23. In this case, there is no dispute that the

attesting witnesses were arranged by DW5, the document

writer, and they were closely associated with him. He

was cross-examined at length by the plaintiff as well

as the second defendant, but his version--that those

witnesses are now deceased--remains unchallenged. He

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was asked only about the wives and children of the

witnesses; it was not even suggested to him that his

statement that the witnesses are no more is false. DW3

also deposed that he had made enquiries about the said

witnesses and understood that they had passed away.

This testimony also went unchallenged during cross-

examination. A conjoint reading of the evidence of DW3

and DW5 renders it sufficient to invoke Section 69 of

the Evidence Act.

24. DW5, the scribe of the Will, deposed that

after he prepared the document, the executant and

attestors of the Will signed in his presence. There is

no dispute that the document was prepared by him in

his capacity as the scribe. He has signed beneath the

Will in that role. As was noticed earlier, the filing

sheet was also brought before the court. His

testimony, confirming the signatures of Bhavani and

attesting witnesses on Ext. B2 Will remained solid,

even after a rigorous cross-examination. The trial

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court found his evidence reliable and that he is a

trustworthy witness. It could not be established

otherwise before us. We find no reason to doubt his

evidence. This is sufficient to prove the due

execution of the Will.

25. Referring to the decision of the Honourable

Supreme Court in Babu Singh and Others v. Ram Sahai

alias Ram Singh (supra), it was further argued that

unless summons is issued to the attesting witnesses,

it cannot be concluded that the witnesses are dead.

We, however, do not find any legal proposition to that

effect in Babu Singh and Others (supra), as argued by

the learned counsel. In that case, the propounder

contended that one of the attesting witnesses had been

won over by the opposite party. During the hearing,

the counsel for the propounder stated that the other

witness had gone abroad and was, therefore, beyond the

court's process. This stand was not accepted by the

trial court, though the appellate court found it

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sufficient. In those circumstances, the Honourable

Supreme Court observed that a mere statement made

through counsel, as opposed to one made on oath by the

party, cannot be treated as evidence. It was

emphasised that such a submission from the Bar cannot

substitute the satisfaction of the requirement

necessary for invoking Section 69 of the Evidence Act.

Significantly, the Court further observed in paragraph

27 as follows:-

"Assuming, however, that even taking the course of Order XVI of the Code of Civil Procedure might not be necessary, what was imperative was a statement on oath made by the plaintiff. A deposition of the plaintiff is as a witness before the Court and not the statement through a counsel across the Bar. Such a statement across the Bar cannot be a substitute for evidence warranting invocation of Section 69 of the Evidence Act"

26. The learned senior counsel for the

appellants further argued that DW5 did not possess

animo attestandi, i.e., the intention to attest the

document. DW5 was not examined as an attesting witness

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in proof of the Will under Section 68. Hence the

question of his animus is irrelevant.

27. Another challenge raised is about the

validity of the attestation of the Will when it is

attested by two witnesses which the learned counsel

would refer to as "stock witnesses". To refute this

argument, the learned counsel appearing for the first

defendant placed reliance on the observation of

V.Kalaivani v. M.R.Elangovan (supra) that no adverse

inference could be drawn against the due attestation

of a Will solely for the said reason. Unlike in a

criminal prosecution, where the presence of stock

witnesses casts serious doubt on the likelihood of

their having witnessed the offence, the fact that a

Will is attested by such witnesses--when the act of

signing is a verifiable physical act--does not, by

itself, affect the validity of the attestation.

Similarly, merely because the witnesses of a Will are

not related to the testatrix, it is not possible to

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doubt the genuineness of the Will. It was DW5 who

prepared the Will and arranged the witnesses and

registration. It is already found that he is a

reliable witness and his evidence appeared

trustworthy. Therefore, the mere fact that the

witnesses were arranged by DW5 does not throw any

cloud on the execution and attestation of the Will.

28. The next issue is about the disposing

state of mind of the testatrix. As was noticed

earlier, though the appellants alleged that the

testatrix was suffering from ailments, there is total

lack of evidence to substantiate the same. After going

through the entire evidence, we find no reason to

doubt the soundness of mind and the disposing capacity

of the testatrix at the time of execution of Ext. B2

Will. When we read the evidence of DW5 together with

the versions of DW3 and DW4, it satisfies our minds to

arrive at such a conclusion. DW5 deposed that the

testatrix walked into his office without any

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assistance, the other witnesses described in detail

her physical and mental condition at that time. As she

had been living at the residence of DW4 during the

relevant time, we find no reason to reject his

evidence on that aspect. The cross-examination of

these witnesses does not yield any material result to

discredit the above version. Though it was vehemently

contended that Bhavani had been suffering from macular

degeneration of her eyesight and had been bedridden

since 1986, when Ext. B19 to B21 (photographs) were

shown to DW2 during cross-examination, he conceded

that it depicted Bhavani visiting his grandchild at

Ernakulam in September 1988. The trial court, after

examining the photographs, rightly observed that the

testatrix appeared to be in sound health, then.

29. It is also relevant to note that, the

plaintiff, a doctor by profession, and the second

defendant, a Surgeon, whose wife (DW2) was also

working as a senior doctor in a reputed hospital at

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Thiruvananthapuram, failed to produce any medical

record to prove Bhavani's alleged physical incapacity,

despite having claimed that she suffered a stroke in

1986 and was treated at S.U.T. Hospital. True,

according to the Will, Bhavani was 81 years old at the

time of its execution. However, considering the

testimony of the aforementioned witnesses,

particularly DW2, it appears that her advanced age did

not impair her testamentary capacity.

30. There is no material to suggest that the

first defendant, the propounder of the Will, was

involved in the execution of the Will. Bhavani was not

even residing with him at the time of its execution.

It was indeed contended that Sri. Ramachandran, with

whom Bhavani had been living at the relevant time,

colluded with the first defendant in the execution of

the Will; apart from such a bald allegation, we find

no sufficient material or reason to substantiate this

contention.