Antholi Sulochana and Others vs Mani

S. Marimuthu, J.—This appeal arises against the judgment delivered by the District Judge, Tellicherry in A.S. No. 166 of 1986. Defendants 1, 2 and 5 are the Appellants and the Plaintiff is the Respondent in this appeal. The Respondent as Plaintiff filed O.S. No. 138 of 1984 before the District Munsiff, Tellicherry for injunction restraining the Defendants not to make any attempt to trespass into the property on the following grounds: The suit property is 63 cents which is item No. 1 in Ext. A-2 Will dated 15th March 1979. The suit property originally belonged to the mother of the Plaintiff Chirootty. As per Ext. A-2 Will, item No. 1, namely, the suit property was given to the Plaintiff, item Nos. 2 and 3 measuring 6 cents and 9 and odd cents respectively were given to the Defendants and their brother Rajeev and sister Shreeja. Chirootty, the mother of the Plaintiff had a son by name Kumaran who is the father of the Defendants. As per the terms of the Will, the Plaintiff has been enjoined the suit property. Taking advantage of the fact that the Plaintiff is not residing near the suit property, the Defendants attempted to trespass into the suit property. Hence this suit.

The above averments of the Plaintiff are resisted by the Defendants on the following grounds: Fifth Defendant is the husband of the 2nd Defendant. Defendants 3 and 4 were minors and therefore, they were struck off in the trial Court itself. There is a house in the plaint schedule property in which the Plaintiff and Defendants 1 to 4 and their father Kumaran were residing. After the death of Kumaran, Chirootty, the testatrix was not in a sound mental condition and she had been attacked by Rheumatism. Chirootty Was very affectionate only towards the children of Kumaran-the Defendants. The Defendants and the other children of Kumaran alone used to go to the house of Chirootty and looked after her. At the time of her death, Chirootty was not in a sound disposing state of mind. Therefore, Ext. A-2 Will said to have been executed by Chirootty is not a true and genuine one. Chirootty was not in such a mental condition to execute the Will. The fact that a major portion has been given to the Plaintiff and a negligible extent is given to the Defendants itself goes to show that she was not in a proper mental condition. On the death of Chirootty, the entire property devolved upon the Plaintiff and the wife and children of Kumaran. They are in a joint possession of all properties. It is false to state that the Defendants attempted to trespass into the suit property. Hence the suit for injunction is not maintainable.

Before the trial Court, Exts. A-1 to A-3 and Exts. B-1 to B-3 were marked. On the Plaintiff''s side, Plaintiff, her husband Krishnan, two attestors of the Will, the Sub Registrar and the Scribe were examined as P.Ws. 1 to 6. The first Defendant was examined as D.W. 1. The trial Court on examining the evidence, both oral and documentary, held that though Ext. A-2 Will was executed by Chirootty and that it was attested by P.Ws. 3 and 5 in the light of evidence, Plaintiff and her husband P.W. 6 had played a prominent role in the execution of the Will and therefore the prominent part played by the husband of the Plaintiff and other circumstances would go to show that Ext. A-2 Will was not executed by the deceased Chirootty on her own free will and volition. The trial Court also found that the Plaintiff and the Defendants, being the legal heirs of Chirootty have been in joint possession of the suit property as co-owners and therefore the Plaintiff is not entitled to injunction as prayed for. Ultimately, the suit in the trial Court ended in dismissal. Questioning the judgment of the trial Court, the Plaintiff, as pointed out above, preferred A.S. No. 166/86 before the District Judge, Tellicherry. The District Judge, on considering the judgment of the trial Court held that Ext. A-2 Will has been proved to be the last Will and testament of the deceased Chirootty. Finally, it allowed the appeal reversing the judgment of the trial Court. Consequently, the suit was decreed. The above judgment of the District Judge is now challenged in this Court.

The points that were urged before me for consideration are: (1) Whether Ext. A-2 Will executed by Chirootty is genuine? (2) Whether the Plaintiff has got right over the plaint schedule property? (3) Whether the Plaintiff is entitled to the injunction as prayed for?

Point Nos. 1 and 2:

Before discussing the evidence adduced in this case as well as the findings of the first appellate Court and trial Court, I feel, some of the principles of law submitted by both sides can be extracted hereunder.

(1) Shashi Kumar Banerjee and Others Vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and Others, . In this decision the Supreme Court has held:

The mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63, Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts it is for the propounder to satisfy the conscience of the Court....

(2) Smt. Malkani Vs. Jamadar and Others, The conduct of the beneficiary under the Will who takes vital role or active part in the execution of the Will alone is not sufficient to doubt the genuineness of the Will.

(3) Vrindavanibai Sambhaji Mane Vs. Ramachandra Vithal Ganeshkar and others, The circumstances like "(a) Propounder taking prominent part in execution of Will which confers substantial benefits on him; (b) Shaky signature; (c) Feeble mind which is likely to be influenced; (d) unfair and unjust disposal of property", are not unnatural and they alone that will not make the Will illegal when otherwise it is establiihed by the propounder.

(4) Smt. Sushila Devi Vs. Pandit Krishna Kumar Missir and Others, .

If the bequest made in a Will appears to be unnatural the Court has to scrutinise the evidence in Support of the execution of the Will with a greater degree of care than usual"...."Will written on inferior type of paper and bequeathing most of the property to the son and the husband of the pre-deceased daughter of the testator instead of his only living daughter who was comparatively affluent held not invalid when genuineness of his signature and execution were proved by witnesses-including the scribe and attesting witnesses....

(5) Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee (dead) by L.Rs. and others, A registered Will made by a 90 year old lady itself is not a ground of making suspicious circumstances surrounding the execution of the Will. The conduct of a lawyer of one of the exccutors in some cases identifying the testatrix before the sub Registrar will not make a suspicious circumstances.

(6) Illyas and Others Vs. Badshah alias Kamla, .

A combined reading of Section 68 of the Evidence Act and Section 63 of the Succession Act, 1925 would require at least one attesting witness to be examined and the said witness should speak not only about the testator''s signature or affixing his mark to the Will but also that each of the witnesses has signed the Will in the presence of the testator. It is for the propounder to prove the Will and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus....

On the above propositions of law laid down by the Supreme Court and the High Court in Madhya Pradesh, now I can discuss the evidence adduced on both sides with reference to the execution of the Will and its genuineness and also the judgments of both the Courts below. It is the finding of the trial Court that though P.Ws. 3 and 5 who are the attesting witnesses of Ext. A-2, have turned hostile they have supported the case of the Plaintiff-Respondent in the execution of the Will. P.W. 3 had admitted before the Magistrate that he was not in his house and he had gone to the house of the 3rd Defendant to tell him that he would give evidence as an identifying witnesses to the Will. Further reading of the evidence of P.W. 3 would go to show that he was going on changing his versions and, in fact, his evidence is self contradictory and in one such circumstances when he went on changing his versions he was severely warned while he was in the witness box. When considering the above fact and the circumstance it is obviously clear that he has been gained over by the Defendants as contended by the Plaintiff. However P.W. 3 has admitted his signature in Ext. A-2 and that he put the signature in the office of P.W. 2 the document writer and, that in his presence P.W. 5 signed Ext. A-2. It is also the admitted versions of P.Ws. 3 and 5 that the Sub Registrar who has been examined as P.W. 4 put questions to Chirootty the testatrix regarding the contents of Ext. A-2 Will and only after understanding the nature and contents of the Will she admitted it to be correct and then she put the signature before the Sub Registrar. The above oral testimonies of P.Ws, 3 and 5 betore the Sub Registrar (P.W. 4).are squarely corroborated by the oral testimony of the Sub Registrar.

According to Plaintiff, P.W. 2 is a document writer who is the scribe of Ext, A-2 Will also and in his office Ext. A-2 Will was prepared on the instruction of Chirootty. P.W. 2 in this aspect would speak that Chirootty had come to his office and gave particulars to write the Will, that at that time chirootiy was in her sound mental condition, that she signed the Will in his presence and in the presence of the attesting witnesses P.Ws. 3 and 5 that P.Ws. 3 and 5 also signed the Will in the presence of Chirootty and that each other have seen the other signing Ext. A-2. Further, though P.Ws. 3 and 5 had given contradictory versions in their evidence so far as the execution of the Will is concerned, their evidence are reliable and acceptable.

The trial Court on examining the evidences of P.Ws. 2 to 4 and 5 in such a manner, as I have discussed above, came to a conclusion that the Will was executed by Chirootty. However, the next stand taken by the trial Court would be quite contrary to the above conclusion arrived at by the trial Court in the execution of the Will. To put it, in short, the second stand taken by the trial Court would be that there are suspicious circumstances surrounding the execution of the Will and those suspicious circumstances would clinchingly go to show that Ext. A-2 Will was not executed by the deceased Chirootty on her own free will and volition. Suspicious circumstances, surrounding the execution of the Will, according to the trial Court are characterised as follows: An examination of the evidence of P.W. 6 the husband of the Plaintiff would evince that he himself had taken Chirootty to the scribe''s office for preparing Ext. A-2 Will and however P.W. 6 is not admitting this fact. Prior to the execution of Ext. A-2 Will Ext. A-3 Will was executed on 17th December 1974 by which no property was given to the Defendants, namely, the children of Kumaran and the entire properties under Ext. A-3 Will were bequeathed to the Plaintiff alone who is the daughter of Chirootty. When no property had been given to the children of the son of the deceased Chirootty under Ext. A-3 Will, after some times wisdom had dawned in the mind of P.W. 6 to create Ext. A-2 Will by which a meagre portion of land was given to the children of Kumaran. The inadequate extent of property given to the children of Kumaran-Defendants herein-is a strong suspicious circumstance in questioning the genuineness of Ext. A-2 Will. The execution of Ext. A-3 Will and thereafter the execution of Ext. A-2 Will came into existence only by the prominent part played by P.W. 6 the husband of the Plaintiff. The above circumstances would indicate that the testatrix was influenced by P.W. 6 in the execution of both Exts. A-2 and A-3 Wills. The Plaintiff did not even admit that her mother was taken to the scribe''s office by her husband P.W. 6. Thus these circumstances would go to show that by exercising undue influence on the testatrix, P.W. 6 got Ext. A-2 Will executed. The above circumstances are considered by the trial Court as suspicious surrounding the execution of the Will and therefore its conclusion was, as pointed out above, the Will was not executed by the testatrix on her own free will and volition.

The material point the trial Court has forgotten would be that it is not a pleading of the Defendants that the Will was executed by undue influence exercised by P.W. 6. In fact, there is also no evidence to this effect on the side of the Defendants that the testatrix was subjected to fraud and undue influence exercised by P.W. 6. When that be the real situation, I do not understand as to why the trial Court came to the conclusion that P.W. 6 played a vital role in the execution of the Will by exercising fraud and undue influence on the testatrix. Needless to say that P.W. 6 being the husband of the Plaintiff the beneficiary and son-in-law of the testatrix, naturally would take a vital role not only in the execution of the Will but also in the welfare of the family members including the Defendants who are none other than the children of his deceased brother-in-law Kumaran. No doubt, a larger extent of property has been bequeathed to the Plaintiff and a smaller extent has been given to the Defendants as per Ext. A-2. That alone is not a ground to make a suspicious circumstance in the execution of the Will. The allotment of sharing of the properties by a testatrix to the beneficiaries under a Will wholely depends upon the intention of the testatrix and nobody can question her intention when there are ample evidence and circumstances to show that her intention was to give a major portion to one party and a lessor portion to the other party. It is also seen in evidence that four years after the execution of Ext. A-2 Will the testatrix had passed away. Practically, there is no evidence that the testatrix was not in a sound state of disposing mind at the time of execution of Ext. A-2 Will or she was laid up with any illness or she was suffering from Rheumatism. When the above circumstances, in fact, are examined on the basis of the principles laid down by the Supreme Court stated supra it is quite clear that those circumstances are not at all suspicious surrounding the execution of the Will or they are not sufficient to hold that the testatrix was not in a sound state of mind at the time of the execution of Ext. A-2 Will. The trial Court, as I have pointed out above, holding that the above circumstances are suspicious, came to the conclusion that the Will is not a free Will of the testatrix. And this aspect alone has been urged before the lower appellate Court by both the sides for consideration.

The lower appellate Court examined the evidence of P.Ws. 3 and 5 in rcspect of the attestation as well as in respect of the signature of the testatrix found in Ext. A-2 Will, and concurred with the finding of the trial Court that the execution of Ext. A-2 has been established by the Plaintiff. So far as the contra finding in respect of the volition and free will of the testatrix is concerned the first appellate Court discussed the circumstances which the trial Court has held suspicious circumstances, and came to a conclustion that those are all not at all suspicious circumstances surrounding the execution of the Will in view of the settled principles as well as the oral evidence available on record. As I have pointed out above, there is no pleading nor is there any evidence to the effect that P.W. 6 the husband of the Plaintiff exercised undue influence and fraud on the testatrix (Chirootty) in the execution of Ext. A-2 Will. Further, P.W. 6 is none other than the son-in-law of Chirootty and the husband of the Plaintiff who is none other than the daughter of Chirooty. The Defendants are also closely related to P.W. 6, that is to say, they are the children of the deceased brother of his wife the Plaintiff. There is nothing to show that after the demise of Kumaran the only son of Chirootty-she was mentally upset and she was not in a sound state of disposing mind. As I noticed above, she had died four years after the execution of the Will. No material is found on record when considering the long period of four years, that she had been ill or she had been bed ridden, etc. When that be so, it is not proper on the part of the trial Court that four years back namely, on the date of execution of Ext. A-2 Chirootty was not in a sound state of mind in executing the Will. A comparative and careful study of the discussions of the trial Court as well as the first appellate Court on the principles laid down by the Supreme Court, extracted above, would satisfy me that Ext. A-2 Will was executed by Chirootty on her own will and volition and no undue influence or fraud had been played by P.W. 6 in the execution of the same. Therefore, both the points are answered in favour of the Plaintiff-Respondent and against the Defendants-Appellants.

Point No. 3:

In so far as the reliefs for injunction is concerned it was submitted by the learned Counsel appearing for the Appellants that no issue regarding possession was raised by the lower Court and no finding was recorded in this regard. But the submission of the learned Counsel appearing for the Appellant is not correct because issue No. 3 is (point No. 3 herein) in respect of injunction. When a decree for injunction is sought for it is implied that possession has to be decidcd in answering the issue. In the instant case, no doubt, both the Courts below have not discussed anything about the possession of the suit property. The suit filed for injunction must contain a specific property with well defined boundaries. One exception would be that a co-owner can ask for an order of injunction against other co-owner, though they are in joint possession of the property, when the other co-owner commits waste in the property or acts detrimental to the improvement of the property. In the instant case, the suit property is 63 cents which is item No. 1 under Ext. A-2 Will. Plaintiff as P.W. 1 would depose that she has been in possession of the property right from the date of Ext. A-2 Will. D.W. 1 says that they are having common interest over the suit property from the death of Chirootty and that they did not threaten.

When I examined the above oral evidence of both P.W. 1 and D.W. 1 regarding possession and the other circumstances, I am of the view that the possession of the Plaintiff is established. The evidence of P.W. 1 also would go to show that her possession was threatened by the Defendants and they also attempted to trespass into the suit property. That portion of the evidence of P.W. 1 was also not challenged in the cross examination. Therefore, I feel that it has to be necessary held that Plaintiff is in possession of the suit property and there is also threat from the side of the Defendants and therefore the Plaintiff is entitled to get permanent injunction. This point is answered in favour of the Respondent-Plaintiff.

In the result, the Second Appeal stands dismissed confirming the Decree and judgment of the lower appellate Court. Consequently, the suit stands decreed. On account of the close relationship of the parties, I direct them to bear their own costs.