Kollamkandy Yesoda vs O.K.Sulekha, D/o Purushu

Sathish Ninan, J

The preliminary decree in a suit for partition is under challenge by defendants 1, 3 and 4.

The plaint schedule consists of seven items of properties. The dispute between the parties is confined to the properties and management of an Upper Primary School and a High School. The properties sought to be partitioned admittedly belonged to one Kunhiraman Master. The first defendant is his wife. The plaintiff and defendants 2 to 4 are his children-daughters. Kunhiraman Master died on 27.12.1980. The plaintiff seeks for partition of the properties including the rights of management in respect of the schools.

The second defendant remained ex parte. Defendants 1, 3 and 4 relied on a registered Will dated 07.10.1980 executed by Kunhiraman Master, marked as Ext.B1 in the suit and contended that the schools and its management were bequeathed thereunder in favour of the first defendant-mother.

The plaintiff amended the plaint and incorporated challenge against the Will.

The trial court held that Ext.B1 Will has not been proved as required under the Indian Evidence Act. It was found that suspicious circumstances surrounding the execution of the Will has not been properly explained. Accordingly, the Will was held against and a preliminary decree for partition was passed. The trial Court also found that the Will did not take in the management right of the schools.

I have heard the learned Senior Counsel Sri.T.Sethumadhavan on behalf of the appellants and Sri.R.Surendran, learned counsel for the contesting respondent.

The points that arises for determination in this appeal are :-

(i) Have the defendants proved the due execution of Ext.B1 Will in the manner as required under the Evidence Act ?

(ii) Have the defendants properly explained the suspicious circumstances surrounding the execution of Ext.B1 Will ?

(iii) Are Exts.B9 and B10 Wills executed by the first defendant liable to be accepted and acted upon ?

The contesting defendants claimed that the right of management and the assets of the Upper Primary School and High School were bequeathed by Kunhiraman Master to his wife, the first defendant under Ext.B1 Will. The dispute in the suit is essentially centered around Ext.B1 Will. Section 68 of the Indian Evidence Act requires the execution of a Will to be proved by examination of at least one of the attesting witnesses. According to the defendants, both the witnesses are no more. DW2 is the brother of one of the attesting witnesses. He has deposed about the death of his brother. The trial court noticed that it was not proved that the other attestor was not alive. Here it is to be noticed that, after the evidence was closed, the defendants filed IA Nos. 1743/2004 and 1744/2004 on 01.07.2004 seeking to reopen the evidence and accept the death certificates of the attesting witnesses in evidence. However, the applications were dismissed by the court stating that, the attempt is to fill up the lacuna in the evidence. Thereafter, the judgment was passed on 09.07.2004.

I am not in agreement with the view adopted by the trial court. It was the specific case of the defendants that the witnesses to Ext.B1 Will are no more. The defendants were called upon by the Court to adduce evidence first. It is thereafter that the plaintiff adduced evidence. Since the defendants claim that the attestors to Ext.B1 Will are no more was not admitted by the plaintiff, the defendants realised that it is necessary to produce material in proof of the death of the witnesses to Ext.B1. It is accordingly that they sought to produce the death certificates of the attesting witnesses. The applications ought to have been allowed by the Court. The orders on IA Nos.1743/2004 and 1744/2004 are accordingly set aside and the death certificates are accepted in evidence.

Having been proved that the attesting witnesses to Ext.B1 Will are no more, the defendants are entitled to have Ext.B1 Will proved in the manner as provided under Section 69 of the Evidence Act. Section 69 requires the signature of at least one attesting witness and the executant/testator to be identified by a person who is familiar with it. As noticed earlier, DW2 the brother of one of the attesting witnesses has identified the signature of his brother in Ext.B1 Will. However, the second limb of Section 69 which requires identification of the signature of the testator, has not been satisfied by any evidence. None of the witnesses has identified the signature of the testator in Ext.B1 Will. The learned Senior Counsel for the appellants would contend that there was no dispute between the parties that the signature found in Ext.B1 Will is that of Kunhiraman Master, the testator. The contention of the plaintiff is that the Will is vitiated by undue influence and fraud. The said contention itself amounts to admission of the signature. As provided under Section 58 of the Evidence Act admitted facts need not be proved. Therefore, it is to be held that Ext.B1 Will has been proved in terms of Section 69 of the Evidence Act, it is contended.

The contention of the plaintiff as against Ext.B1 Will is at paragraph 7(a) of the amended plaint. It would be appropriate to refer to the said averments. The same reads thus:-

“7(a) It is further submitted that Oniyan Nellikka Kunhiraman had not executed any will bequething the item No.1 and 2 of the plaint 'A' schedule property, item No.1 and 2 of the plaint 'B' schedule property and item No.1 and 2 of the plaint 'C' schedule property to the defendant No.1 He was completely bedridden for three years immediately before his death and he was not in a sound disposing state of mind on account of his illness in the above mentioned period. He was physically and mentally incapable of executing any documents during this period. The will has not executed by him out of own free will. The alleged will is only an outcome of fraud and undue influence played by defendant No.1,3 and 4. Further it was a created one for the purpose of grabbing the properties and also to deny the plaintiff's legitimate share in the above stated plaint schedule properties.”

A reading of the said averments indicate that the plaintiff has denied the execution of the Will by contending that “... Kunhiraman had not executed any Will bequeathing the item Nos.1 and 2 ... He was physically and mentally incapable of executing any documents...”. While it is true that the plaintiff has pleaded that the Will is an outcome of fraud and undue influence, noticeably, the execution of the Will has also been denied. It could only be understood as an alternate contention. At any rate, it is not proper to

understand the plea as an admission of execution. The above plaint averment is to be considered along with the deposition of PW1. In her cross-examination at page No.4 she has categorically denied the signature of Kunhiraman Master as seen in Ext.B1. The relevant portion of the deposition reads thus :-

“A\ym-b-¯nð ]-d-ª Hu-ky-¯v A-ѳ H-¸n-«-Xm-Wv. (Q) A§-s\ H-cp tc-J A-ѳ F-gp-Xn-bn-«nñ. A-Ñ-sâ H-¸v Añ.”

Therefore, it cannot be said that there is admission of the signature of Kunhiraman Master. The signature of the testator as seen in Ext.B1 having not been proved as mandated under Section 69 of the Evidence Act, it could only be concluded that Ext.B1 Will has not been proved as required under the law.

Learned Senior Counsel for the appellants made a request that the suit may be remanded back to the trial Court to enable proof of the Will in terms of Section 69. I do not think that such a course is proper at this stage. This is essentially in view of the fact that, even before the trial Court the definite case of the defendants was that the attestors to Ext.B1 Will are no more; the attempt of the defendants were to have Ext.B1 Will proved in terms of Section 69 of the Evidence Act. They having failed to do so, it is not proper to have the matter remanded to enable the defendants to adduce further evidence regarding the same.

Even with regard to the evidence of DW2, the brother of one of the attesting witnesses who identified his brother's signature on Ext.B1 Will, the Court noticed that the witness admitted that, the previous day, a copy of the Will was shown to him and he was required to affirm before the Court about the signature of his brother. Though in the next breath he would depose that the document was not shown, that is contradictory to his earlier statement. Trial court which had the benefit of watching the demeanor of the witness held DW2 to be not a trustworthy witness. It is sufficient to hold that Ext.B1 Will has not been proved in accordance with law. The finding of the trial court in the said regard is only to be affirmed.

The trial Court has further held that the right of management of the schools was not a subject matter of the bequest under Ext.B1 Will. Referring to various judgments of the Apex Court and this Court in Gnambal Ammal v. Raju Ayyar and Others, 1951 KHC 218, Pramod Kumari Bhatia v. Om Prakash Bhatia and Ors., AIR 1980 SC 446, Shyamal Kanti Guha (D) through Lrs and Ors. v. Meena Bose, AIR 2009 SC 1194, Parukutty Amma v. Parukutty Amma, 1999 (1) KLT 593, Raveendran C.G. and Others v. C.G. Gopi and Others, 2015 (3) KLT 740, Sebastian P.C. v. Chacko P.C. and Others, ILR 2016 (2) Kerala 386, the learned senior counsel strenuously contended that, the Will must be understood to be conveying the management right also and the lacuna/omission if any, to mention such right must be supplied by the Court furthering the intention of the testator. On a plain reading of the Will, it is clear that the subject of the bequest was the properties of the schools. With regard to the right of management it is specifically stated in the Will that, steps are being taken before the authorities for change of management. It is for the said reason that management was not included in the Will. Therefore, it is evident that it was not a subject of the bequest. The principle regarding construction of Wills with regard to the subject of bequest, as relied on by the learned senior counsel does not apply to the facts of the case.

Once it is held that Ext.B1 Will has not been proved, the rights over the properties vests with the parties to the suit as co-owners. This includes rights over the schools, its properties and its management.

Now I proceed to consider as to whether Ext.B1 Will is shrouded by suspicious circumstances. According to the plaintiff, the testator had a fall about 1½ years prior to his death and was physically and mentally incapable to execute any documents. The defendants would on the other hand contend that, though the testator had a fall that was about two weeks prior to his death, and that he was physically and mentally competent to execute Ext.B1 Will. The learned Senior Counsel for the appellants referred to the averment in paragraph 2 of the plaint wherein it is stated that Sri.Kunhiraman Master was the Manager and Correspondent of the school till his death. Therefore, even going by the plaintiff's case the testator was competent to execute the Will, it is contended.

As noticed earlier, the physical and mental capacity of Kunhiraman Master for execution of Ext.B1 Will has been challenged by the plaintiff. That Sri.Kunhiraman Master had a fall which affected his physical capacity seems to be not in dispute though there is dispute with regard to the date of fall. According to the defendants the fall was much subsequent to the execution of Ext.B1 Will, whereas according to the plaintiff the fall was much prior to that. Be that as it may, the fact remains that Ext.B1 Will was registered at the house of Kunhiraman Master. If he was hale and healthy as has been contended by the defendants, under normal circumstances there would not have any requirement to have the Will registered at his house. This is especially so if he was, as contended by the defendants, actively managing the affairs of the School during the said period. It indicates that the fall must have been prior to the execution of the Will which required registration of the Will at his house.

In Ext.B1 Will it is recited that steps are being taken for change of management of the School in the name of the first defendant. The Will was executed on 07.10.1980. The fact remains that, much prior to that, on 15.05.1980 as per Ext.B2 communication, the request of Kunhiraman Master for transfer of management of the school in favour of the first defendant was not granted. As per Ext.B2 communication, further documents and transfer of ownership of the assets of the school were sought for. There is no case for the defendants that pursuant to Ext.B2 communication any steps were taken by Kunhiraman Master as required thereunder and that processing of the request for transfer of the management was in progress. The above is noticed only to point out that, as on the date of execution of the Will, the request for transfer of management in favour of the first defendant was already turned down by the authorities and that the statement in Ext.B1 Will that, steps are on for change of management in favour of the first defendant is not correct. This tells upon the disposing state of mind of the testator.

The Will was executed on 07.10.1980 and was registered on 09.10.1980. The learned senior counsel for the appellants would rely on various judgments including the judgment of the Apex court in Purnima Devi and Ors. v. Kumar Khagendra Narayan Devi and ors., AIR 1962 SC 567 to contend that, the fact that Ext.B1 is a registered will is a circumstance to prove its genuineness. However, registration of Will alone is insufficient to dispel the suspicious circumstances surrounding the Will. There is no evidence as to who made the arrangements for execution of the Will, who had called the scribe, when was the draft prepared, who made arrangements for house registration, when was the draft brought and read over to the testator and corrected, who assisted the testator in all the above, are all totally in dark. There is absolutely no evidence on the above aspects. The propounder has failed to dispel the suspicious circumstances surrounding the execution the Will.

It is argued by the learned Senior Counsel for the appellants that, admittedly the plaintiff was residing with the father at the relevant time and that there is no reason why she would be unaware of the execution of the Will. It does not mean that the propounder has discharged the burden. It is to be noticed that, it is the case of the plaintiff that during the relevant period she was undergoing classes in sewing and that in the evening she used to go for the class. The registration was in the evening. It is not in dispute that she subsequently became a sewing teacher at the school. Therefore, her contention that she was unaware of the incident leading to the execution of the Will cannot be shooed away as, improbable.

The learned Senior Counsel referred to the judgment in Pearly Lal v. Rameshwar Das, AIR 1963 SC 1703 to contend that, the circumstances under which the Will is made is relevant. It is only reasonable that the Will has been executed in favor of the wife, who was also made the Manager of the school. Admittedly, the plaintiff was appointed as a teacher of the school by the first defendant acting as a Manager. Therefore, the plaintiff cannot be heard to contend against Ext.B1 Will under which the first defendant became the Manager, it is contended. Exts.B2, B3 and B4 communications from the statutory authorities indicate that, for transfer of management, the authorities required consent of all the legal heirs. The mere fact that the first defendant acted as Manager, by itself, cannot be understood as an acceptance of the Will. Here, Exts.A4 to A6 and A12 documents assumes significance. Ext.A4 is the plaint in OS 93/1992 filed against a stranger by the wife and children of Kunhiraman Master. Therein, referring to the approval by the educational authorities the first defendant herein claimed to be the Manager and it was asserted that on the death of Kunhiraman Master, the properties in question devolved on all the legal heirs. The first defendant did not claim exclusive right based on Ext.B1 Will. Exts.A5 and A6 are the judgment and decree passed therein. Ext.A12 is a purchase certificate dated 08.07.1982 in S.M. 186/1981 with regard to one of the items of properties under dispute. The purchase certificate is issued in the name of all the legal heirs of Kunhiraman Master. Though DW1 seeks to put forward an explanation that the details for the purchase certificate were given not by them which led to the mistake, it is difficult to accept that the parties who were managing a school and were teachers, kept quiet and stood by the mistake, even assuming it was so. Here it is pertinent to note that, in Ext.A4 suit, the plaintiffs therein i.e., all the legal heirs of Kunhiraman Master, relied on a tax receipt dated 30.09.1985. It shows that after the death of Kunhiraman Master, the legal heirs treated it to be co-ownership property. The 1st defendant did not claim exclusive right under Ext.B1 Will. There is no case that mutation was effected and tax was paid on the strength of Ext.B1 Will.

The learned Senior Counsel would repeatedly stress on the fact that, the challenge against Ext.B1 Will of the year 1980 is made only in the year 2001. However, it is to be noticed that, there is no material to indicate that the rights under Ext.B1 Will was accepted, acted upon and asserted by the 1st defendant. On the contrary, Ext.A4 suit, A12 purchase certificate, the tax receipt dated 30.09.1985 produced in Ext.A4 suit etc. indicates that the parties treated it as co-ownership properties. All these are circumstances which prompted the court not to accept the Will. The finding of the trial court that Ext.B1 Will is not liable to be accepted, is based on materials, and does not warrant interference.

The first defendant died on 14.10.2007, pending this appeal. It was claimed that she had executed two Wills dated 15.06.1999 viz. Exts.B9 and B10. Under Ext.B9 the Upper Primary School was bequeathed to the plaintiff and defendants 2 and 3, and under Ext.B10 the High School was bequeathed to the fourth defendant and her differently abled son. On the application IA 1/2021, for recording the legal heirs based on Exts.B9 and B10 Wills, this Court called for a finding from the trial Court, in terms of Order XXII Rule 5 of the Code of Civil Procedure. Before the trial Court, one of the attestors to the Wills was examined as DW3. The trial court accepted the evidence and entered a finding upholding the Wills. Order XXII Rule 5 of the Code of Civil Procedure requires this Court to determine the question as to the validity of the Will on the basis of the said materials.

DW3 deposed about the due execution and attestation of the Will as mandated under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. Pertinently, the evidence of DW3 was not challenged by way of cross-examination. The trial court recorded its finding in favour of the Will. The learned counsel for the respondent would contend that, going by the evidence of DW3, the testator-first defendant had hearing impairment and she could decipher speech only by lip movement. The evidence of DW3 is to the effect that the Will was read over to the testator after which she signed the Will. There is nothing to indicate that the testatrix had understood its contents. Therefore, Exts.B9 and B10 Wills cannot be accepted, is the argument. While it is true that DW3 has deposed about the hearing impairment of the first defendant, that by itself would not mean that she executed the Wills without understanding its contents. As noticed supra, DW3 was not cross-examined. She was acting as the Manager of the Schools till her death on 14.10.2007. Exts.B9 and B10 Wills were executed on 15.06.1999. There is no reason to find that such a person would have executed the Wills without understanding its contents. As noticed, she died more than eight years after the execution of the Wills. It is not reasonable to assume that during the said period she did not even bother to look into the contents of the Will. If she wanted to cancel the Wills it could have been done at any time. I do not find force in the argument that the Wills were executed by the first defendant without knowing its contents. On the evidence I find that Exts.B9 and B10 Wills have been duly executed by the first defendant and are valid. The finding of the trial Court is only to be accepted and I do so.

Ext.B1 Will having been held against, the decree and judgment of the trial Court warrants no interference. Exts.B9 and B10 Wills having been upheld, the 1/5 share of the 1st defendant over the Schools would devolve in terms of the bequests. The trial Court is to take note of the same while passing the final decree.

The appeal will stand disposed of as above.