Chacko and Others vs Elizabath John and Others

K.K. Usha, J.—Plaintiff in O.S. 7/85 before the District Court, Kottayam is the Appellant. On his death pending the appeal, his legal heirs are impleaded as additional Plaintiffs 2 to 4. Respondents 1 to 5 were Defendants in the suit. Pending appeal, Respondents 1, 3 and 4 died. Their legal heirs were impleaded as Respondents 12 to 13, 6 to 8 and 9 to 11 respectively. Plaintiff, P.C. Chacko originally filed O.P. 214/84 u/s 276 of the Indian Succession Act for issue of probate of the Will of his deceased mother Saramma Chacko. Counter-Petitioners 1 to 5 were the other children of late Saramma Chacko. Respondents 1 and 2 remained ex parte. Respondents 3 and 4 appeared and contested the petition. Therefore, the petition was converted as a suit and numbered as O.S. 7/85.

Late Saramma Chacko died on 3rd March 1978 at the house of the 3rd Defendant. Plaintiff and Defendants are her sole legal heirs. It was contended by the Plaintiff that late Saramma Chacko executed her last Will which was accepted by her in the presence of witnesses before the District Registrar''s Office, Kottayam on 23rd July 1966. The Will was kept under safe custody of District Registrar''s Office, Kottayam. On the application by the power of attorney holder of the Plaintiff, sealed document was opened in the District Registrar''s Office and it was registered as document No. 24/81 before the Sub Registry Office, Kottayam. Producing a certified copy of the Will, Plaintiff filed an application to call the original Will Deed kept under the safe custody of the District Registrar''s Office. It is contended by the Plaintiff that the properties included under Schedule A to the Will which would take in 24 cents of property in Sy. Nos. 220/18 and 221/1 and 1 acre 2 cents of property in Sy. No. 215/7 among other items were set apart to him. But, during the life time of the testator, out of the above properties she transferred the right in 5 acres 40 cents of Nilam under a gift deed No. 2649 in favour of the 3rd Defendant, P.C. Cheriyan. Plaintiff is in possession of balance property consisting of 24 cents in Sy. Nos. 220/18 and 221/1 and 1 acre 2 cents in Sy. No. 215/7 of Nattakom village along with the building thereon. On the above basis, he may be appointed as executor of the Will.

3rd Defendant contended that late Saramma Chacko had no occasion to execute any Will either on 23rd July 1966 or on any other date. She was continuously residing with 3rd Defendant till her death and no Will could have been executed without his knowledge. The alleged Will is a fabricated document and came into existence without the knowledge of Saramma Chacko. According to him, the Plaintiff is not in possession of the property as claimed by him and he was not entitled to the same also. 24 cents of property is in the possession of 4th Defendant and the 3rd Defendant is in possession of 1 acre 2 cents of land with building thereon.

4th counter-Petitioner-Defendant took an additional contention that late Saramma Chacko was of unsound mind and therefore could not have executed any document much less a Will. No notice was given to him before registration of the Will and therefore it is not binding on him. O.S. 322/76 was filed in Sub Court, Kottayam to set aside the gift deed in favour of 3rd counter-Petitioner-Defendant. Suit was dismissed and the matter was taken in appeal to this Court. He also claims that he is in possession of 24 cents of property referred above for more than 20 years. The building and the property admeasuring 1.2 acres are in the possession of the 3rd Defendant.

Trial court framed 2 issues, namely, whether the Will executed by Saramma Chacko is properly proved and whether the Will is invalid for any of the reasons raised by the Defendants. The evidence in the case consisted of Ext. A-1 Will dated 23rd July 1966, Ext. A-2 dated 20th February 1975 which is certified copy of an order dismissing O.P. 104/73 filed by 4th Defendant to declare that his mother Saramma Chacko was a lunatic and the oral evidence of one of the attesting witnesses to the Will as P.W. 1 the scribe of the Will P.W. 2 and the Plaintiff''s son as P.W. 3. From the side of the Defendants, there is only the evidence of D.W. 1, wife of the 3rd Defendant and Ext. B-1, the gift deed.

On an evaluation of the evidence in this case, the trial court took the view that Ext. A-1 Will was executed by Saramma Chacko, that it was not a fabricated document, that she was having testamentary capacity to execute the Will and that there was no suspicious circumstances surrounding the Will. But the court rejected the prayer for grant of probate on the ground that Ext. A-1 Will was not properly executed as required by Section 63 of the Indian Succession Act. The above finding is under attack in this appeal at the instance of the Plaintiff.

It is contended by the Appellant that even if P.W. 1, one of the attesting witness said that he did not see the testator signing the Will, the court below should have found that execution of the Will was proper in the light of the evidence of P.W. 2 by taking recourse to Section 71 of the Evidence Act. Court below should have taken into consideration all the facts and circumstances of the case and should have taken the view which would be in furtherance of the desire expressed by the testator. On the other hand, according to the Respondents, the court below was fully justified in denying relief to the Appellant since law requires particular mode of execution in the case of a Will as also proof of such execution. If such requirements are not strictly satisfied, no relief can be granted to the propounder of the Will.

The fact that Ext. A-1 Will was deposited under safe custody of the District Registrar''s Office that on the death of Saramma Chacko, it was opened by the District Registrar and registered as document No. 24/81 before the Sub Registry Office, Kottayam and the original of the same was produced from the District Registry Office, are not disputed before us. Section 63 of the Indian Succession Act provides the following rules in the matter of execution of a Will:

(a) The testator shall sign or shall affix his marks to the Will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

The burden is on the propounder of the Will to prove that such conditions are satisfied. Section 67 of the Evidence Act provides that if a document is alleged to be signed by any person, the signature must be proved to be in his handwriting. Section 68 deals with proof of execution of documents required by law to be attested, which would take in a Will also. It provides that such document shall not be used as evidence until one attesting witness, at least, has been called for the purpose of proving the execution, if there be an attesting witness alive and subject to the process of court and capable of giving evidence. Section 71 provides for a situation where the attesting witness denies or does not recollect the execution of the document. In such cases, it is open to the propounder of the document to prove its execution by other evidence.

From Ext. A-1, it is seen that two persons had signed after the testator as witnesses. They are Philipose (P.W. 1) and Samual. It is also signed by the scribe, Thomas Mathew who is examined as P.W. 2. As per the provisions contained u/s 281 of Indian Succession Act, 1925 and Rule 6 of the Indian Succession Rules (Kerala), 1968, the petition for probate shall be in form No. 2 and shall be accompanied by an affidavit of one of the attesting witnesses, if procurable. On going through the petition in this case, it is seen that there is a verification by the first attesting witness (Philipose P.W. 1) to Ext. A-1 to the effect that he was a witness in the last Will of the testator Saramma Chacko that he was present and he saw the attestor affixing her signature. In the written objection filed by Respondents 3 and 4, there was no challenge against the above-mentioned verification. When examined as P.W. 1, the first attesting witness identified Ext. A-1 as the Will deed executed by Saramma Chacko and one wherein he had signed as a witness. He had deposed that it was signed on 23rd July 1966 and it was in the handwriting of a Clerk in the office of the document writer Philipochan. He further states that the scribe read out the Will deed to Saramma as well as to the witnesses. Saramma then signed in the Will. Then he says that he did not see Saramma signing the Will deed since, one by one, they were called and made to sign. Saramma was called first and she moved towards the Registrar. He says that he did not see Saramma signing as he was standing by the door at about 10 feet away from Saramma. He signed in the Will deed in front of the Registrar, just below the signature of Saramma. Another witness was also made to sign. Will deed was read out and Saramma affirmed its correctness. Again he states that he saw Saramma scribbling something in the document in front of the Registrar. He further states that Saramma was his neighbour and it was on the request of Saramma, he accompanied her. Saramma deposited the Will in the Registrar''s Office and paid necessary fee for the same. She was having testamentary capacity at the time of execution of the Will. Taking into consideration the statement of P.W. 1 that he did not see Saramma signing on the Will deed, court below came to the conclusion that the Will has not been properly executed as contemplated by Section 63.

P.W. 2 who has signed in Ext. A-1 as the scribe, has given evidence that Ext. A-1 was written by him in his office as required by Saramma. A draft was first written and read out to her. Thereafter the original was written. It was in his presence Saramma signed in Ext. A-1 in the document writer''s office. The two attesting witnesses also signed from his office. He saw Saramma as well as two witnesses signing in Ext. A-1. He further states that the two witnesses had also seen Saramma signing in Ext. A-1. Thereafter, he signed on the document as scribe. The Will was put in a cover and sealed. Address was written on the cover. Along with Saramma and the witnesses, he also went to the office of the District Registrar with the document. Saramma and the two witnesses had put their signature in the registry office also. At that time, Saramma was having both mental and physical health and she could understand what was going on. From his evidence, it is seen that the signature of the testator and the witnesses were obtained at the Registry Office on the cover containing the Will. Their thumb impression was taken in the register. Nothing has been brought out in his cross-examination which would discredit his statement in the chief examination.

Evidence of P.W. 3, son of the Plaintiff is not of much assistance to prove execution of the Will. But, he states that it was he who made an application for opening the Will deposited with the Office of the Registrar and for registering the same in the Office of Sub-Registrar. He has also given evidence to the effect that he had seen Philipose Kurian, first attesting witness, signing in the affidavit attached to the application for probate in the office of the advocate.

D.W. 1 is the wife of the 3rd Defendant. Even though, she disputes the signature of Saramma Chacko in Ext. A-1, she admits that Saramma was quite healthy and was having testamentary capacity. Ext. B-1 gift deed was executed by Saramma gifting 5 and odd acres in favour of the 3rd Defendant. It was executed at a time when Saramma was staying with her and her husband. She also admits that the Plaintiff was a respectable person and he used to visit his mother occasionally.

As mentioned earlier, trial court had found that Ext. A-1 Will had been signed by Saramma Chacko when she was having sound mental disposition that there are no suspicious circumstances surrounding the Will and that the Will was not a fabricated one. The only ground on which probate was denied was that the execution of Ext. A-1 Will was not properly proved as contemplated by Section 68 of the Evidence Act, since P.W. 1, the attesting witness, stated that he did not see Saramma Chacko signing in Ext. A-1 Will.

We have to consider whether in the light of the entire evidence in this case, including that of P.W. 1, the propounder of the Will is to be denied probate only on the above-mentioned statement made by P.W. 1. We have already dealt with in detail the evidence of P.W. 1. It can be seen that he has referred to the circumstances under which he accompanied Saramma Chacko to the office of the scribe and then to the Office of the Registrar. He has also stated that Saramma Chacko signed in the Will and the signature contained in Ext. A-1 is that of Saramma Chacko. He has stated that including himself, two attesting witnesses signed in Ext. A-1 and also the scribe, P.W. 2. But, after deposing to all these facts, either due to a genuine confusion or with deliberate intention to help the Defendant, he stated that Saramma Chacko signed in front of the Registrar, that he was standing 10 ft. away from her and therefore he did not actually witness her signing. It is contended on behalf of the Appellant that under such circumstances, it is permissible to rely on other evidence in this case to prove the Will. In this case, reliance was placed on the provisions contained u/s 71 of the Evidence Act. No specific reason is given by the trial court in refusing to apply the provisions contained u/s 71. But, according to the Respondent herein, Section 71 can be applied only when the attesting witness denies his signature or when he does not remember having signed in the document.

It is now an accepted proposition that merely because an attesting witness chooses to deny attestation of the document, the propounder of the Will should not be without remedy. In Ittoop Varghese v. Paulose and Ors. 1974 KLT 873 a Bench of this Court had occasion to consider the situation where the attesting witnesses deposed that they did not see the testator signing and did not get a personal acknowledgement from the testator of his signature in the Will and further that they did not sign in the presence of the testator. This Court took the view 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. In Manindra Nath Ganguli v. Durga Charan Ganguli ILR (1949) Cul 471, it was held that the probate 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 record and the circumstances taken as a whole, the court is in a position to hold that the Will was duly executed and attested. In the above case, application for probate was supported by verification by one of the attesting witnesses to the Will. The signature of the testator was proved and the attesting witness who signed the verification, admitted his signature in the Will. There were no other circumstances to show that the terms of the Will were not natural. Under these circumstances, the court took the view that inadequacy of the evidence of the attesting witness should not stand in the way of granting probate. In coming to the above conclusion, Calcutta High Court relied on a decision of the Court of Appeal in England and an earlier decision of its own.

In Wright v. Sanderson (1884) 9 P.D. 149, the attesting witnesses to the codicil on the Will when examined, could not say that the testator signed the Will and that his signature was there when they signed as witnesses. The decision of the probate court upholding the Will was approved by the Court of Appeal. Fry, L.J. observed that presumption in favour of true attestation of the Will was not rebutted by the evidence of two attesting witnesses who deposed to say that testator did not sign the Will in their presence, but they were confused and forgetful in the witness box. In the present case also, if we closely read the evidence of P.W. 1, it can be seen that he was confused with regard to the signing of the Will in the office of the scribe and signing in necessary registers and on the cover contained the Will in the Office of the Registrar. It is a case of his not properly recollecting the sequence. He had admitted that the testator had signed the Will in the office of the scribe. Then, he refers to the testator signing in the registry office which, according to him, he could not see as he was standing 10 feet away from her. Under these circumstances, we are of the view that the court would be justified in looking into the entire circumstances and other evidence to consider whether the Will has to be upheld. It is also to be noted that ex facie, the Will is properly executed. The attesting witnesses have signed after the signature of testator.

In Brahmadat Tewari v. Chaudan Bibi AIR 1916 Cal 374, both attesting witnesses called for giving evidence in support of execution of a Will, turned hostile. There was an elaborate discussion of the principle and various decisions on the point in this judgment. Upholding the Will, Sir, Asutosh Mookerjee, J. has obseived as follows:

The principle is will settled that when the evidence of the attesting witnesses is vague, doubtful or even conflicting upon some material point, the Court may take into consideration the circumstances of the case and judge from them collectively whether the requirements of the statute were complied with, in other words, the Court may, on consideration of the other evidence or of the whole circumstances of the case, come to the conclusion that their recollection is at fault, that their evidence is of a suspicious character or that they are wilfully misleading the Court, and accordingly disregard their testimony and pronounce in favour of the Will.

The above dictum is seen followed in Mohammed Zia Ullah Khan v. Rafiq Mohammed Khan and Ors. AIR 1939 Oudh 213. In this case, both attesting Witnesses deposed that neither the testator signed the Will in their presence nor did they sign in the presence of the testator. The court took the view that the attesting witnesses were not speaking the truth. Taking into consideration other circumstances and evidence in the case, the Will was upheld.

In Mst. Gori and Others Vs. Munshi Ram and Another, , the distinction between the factum of compliance with provisions of Section 63 of the Succession Act and a proof of such factum has been dealt with. It was held that if there is sufficient evidence to show that the two witnesses attested the Will, it would be sufficient compliance with the provisions of Section 63 even if the evidence of the attesting witnesses were not quite satisfactory.

Learned Counsel for the Appellants made reference to page 189 of Indian Succession Act by Sanjiva Row, fifth edition referring to the portion that where the evidence of 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 requirements of the statute have been complied with. He also made reference to Sir John Woodroffe and Syed Amir Ali''s Law of Evidence, 15th Edition, Volume 2, Page 787, which contains reference to the same principle.

Coming to the contention raised on Section 71, we find that the trial court was not fully justified in holding that Section 71 would not come to the help of the Plaintiffs. In AIR 1939 117 (Privy Council) , the question of proof of a document came up for consideration. One attesting witness was called to prove the execution. His evidence was rejected as unreliable. It was contended that by applying the provisions contained u/s 71 of the Evidence Act, execution of the mortgage deed might be proved by other evidence. It is true that Section 71 is applicable only where the attesting witness denies or does not recollect execution of the document. Their Lorsdhips were inclined to take the view that the discrepancies in the evidence of the attesting witness which led to rejection of his evidence were due to deficient recollection. In the present case also, after reading the entire evidence of P.W. 1, we are of the view that the inadequacy or defect in his evidence was due to lack of recollection, especially, in view of the verification made by P.W. 1 in the petition itself.

Learned Counsel appearing on behalf of the Respondents strongly contended that the Appellant has not discharged the burden of proof which is heavily on the propounder of the Will. In support of his contention, he relied on a Bench decision of this Court in Natarajan v. Sree Narayana D.S. Trust 1995 (2) K.L.T 862. It was further submitted on behalf of the Respondents that there is inherent improbability in the provisions made under Ext. A-1 Will as the testator had totally excluded her two sons and one daughter. The fact that there is no reference to the Will in the gift deed dated 19th September 1973, Ext. B-1, under which 5 acres 2 cents of land included in the schedule to Ext. A-1 was gifted to 3rd Defendant, is an indication to the effect that Ext. A-1 is not a genuine document. We do not find much force in the above arguments. On going through the facts of the case of 1995 (2) KLT 862 supra, it can be seen that there was no independent evidence to prove proper execution of the Will in the absence of the attesting witnesses.

In Ayyapan Vs. Vasantha, a Bench of this Court had occasion to consider in detail at to how the court can look into the entire circumstances of the case to uphold a Will even when an attesting witness denied attestation of the Will in the testator''s presence. In the present case, the evidenee of P.W. 2 clearly proves the fact of attestation by two witnesses as provided u/s 63 of the Indian Succession Act. He has also spoken to the manner in which the testator and the witnesses signed both in the Will at the office of the scribe as well as in the registers and over the cover in the Office of the Registrar. The decisions relied on by learned Counsel for the Respondents in support of the principle that the evidence of the scribe cannot be treated as that of attesting witness unless he has the intention to sign as an attesting witness, are not applicable in the facts of this case. The evidence of P.W. 2 need not be treated as the evidence of an attesting witness. His evidence is used only for the purpose of supporting the contention of the Plaintiffs that the Will was properly executed as contemplated by Section 63.

Trial court found that there was no suspicious circumstances surrounding execution of the Will. We are in full agreement with the above view Non-reference to the Will in the gift deed, dated 19th September 1973 is only natural, since, admittedly, at the time of execution of the gift deed, Saramma Chacko was staying with 3rd Defendant and it was in his favour the gift deed was executed. It is not a case where the entire property belonging to Saramma Chacko was gifted to one son. Even according to D.W. 1, Saramma Chacko was having sound mental capacity during the relevant period and that she had no case that the Plaintiff would have influenced Saramma Chacko to get Ext. A-1 executed.

In the light of the above discussion, we hold that the court below has wrongly taken the view that proper execution of Ext. A-1 Will was not proved in this case. In the result, we set aside the judgment and decree of the court below and the suit stands decreed. The appeal is allowed as above, but, in the circumstances, without any order as to costs.