Madhavan vs Karthiani and Others

S. Marimuthu, J.—The first Defendant is the Appellant. Plaintiffs 1 to 3 and the Defendants 3 to 11 are the Respondents. The second Defendant died during the tendency of the suit in the trial Court and her legal representatives are as Defendants 7 to 11. This appeal is filed against the judgment of the Principal Sub Judge, Kottayam delivered in A.S. No. 64 of 1993, wherein the judgment of the trial Court, which passed a preliminary decree for partition in O.S. No. 795 of 1989 (Principal Munsiff, Kottayam), was confirmed.

The Plaintiffs filed the suit before the Munsiff on the following grounds:

The suit property measuring 1 acre 19 cents originally belonged to the mother of Plaintiffs by name Kunju Pennu. On the death of Kunju Pennu, the Plaintiffs and the Defendants 1 and 2 obtained the property by succession. The deceased second Defendant is the sister of Plaintiffs as well as the first Defendant. The above Kunju Pennu died on 10th July 1989. The Plaintiffs are entitled to 1/5 share each in the suit property. The first Defendant is entitled to 1/5 share and the Defendants 7 to 11 who are the legal representatives of the second Defendant together entitled to 1/5 share. There are buildings in item No. 1 in which also Plaintiffs are entitled to 3/4 share. The plaint item No. 1 as pointed out above is 1 acre 19 cents and the plaint items 2 to 5 are the buildings. Since the first Defendant was not amenable for a partition, the suit was filed against the Respondents Defendants for partition, mesne profits etc.

The Defendants 1, 3 and 4 filed a common written statement contending that the suit is not maintainable. The suit properties exclusively belonged to the first Defendant and he is in possession and enjoyment thereof. The mother of the Plaintiffs and the Defendants 1 and 2 already executed a Will deed in favour of the first Defendant on 2nd January 1970. Item Nos. 2 and 3 were constructed by the Defendants 3 and 4 and they are residing there. Defendants 5 and 6 are residing in item No. 5 with the consent of the first Defendant. During the marriages of the sisters namely, the second Defendant and Plaintiffs ornaments and dowery were given by the first Defendant. Therefore the Plaintiffs and the second Defendant have no right over the plaint items. Therefore the suit has to be dismissed on account of the Will.

In the trial Court Exts. B-1 to B-8 were marked. On the Plaintiffs side the first Plaintiff was examined as P.W. 1. On the Defendants side the first Defendant and one Scaria were examined as P.Ws. 1 and 2. The Principal Munsiff, Kottayam on examining the evidence adduced on both sides passed a preliminary decree for partition that the Plaintiffs are entitled to 3/5 share in the plaint schedule properties and also for recovery of the same. It also decreed that the first Defendant is entitled to only 1/5 share and the Defendants 7 to 11 being the legal heirs of the deceased second Defendant are together entitled to 1/5 share, leaving mesne profits to be decided in the final decree proceedings. Challenging the above judgment of the Principal Munsiff, Kottayam, the first Defendant filed an appeal before the Principal Sub Judge, Kottayam as A.S. No. 64/93, as noted above.

The Principal Sub Judge, on examining the evidence and also the judgment of the trial Court, concurred with the judgment and Decree passed by the trial Court and ultimately dismissed the appeal. The present appeal before this Court is filed by the first Defendant as Appellant questioning the judgment of the lower Appellate Court.

The only point that was urged before this Court is whether Ext. B-1 dated 2nd January 1970 is a valid and genuine Will executed by the mother of the Plaintiffs and the Defendants 1 and 2. If Ext. B-1 Will is established by the Appellant in accordance with the statutory provisions of law, as well as the settled proposition of law then the Plaintiffs are not to entitled to claim share by way of partition. On the other hand, if the Appellant fails to establish Ext. B-1 he is entitled to only 1/5 share in the suit items. Before examining Ext. B-1 and the contents thereon, I feel it is better to extract hereunder the provisions of law, both statutory and settled in respect of proof a Will. Section 67 and Section 68 of the Indian Evidence Act, 1872 read as follows:

Proof of signature and handwritting of persons alleged to have signed or written document produced. If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person''s handwriting must be proved to be in his handwriting.

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

Section 63 of the Indian Succession Act, 1925 read as follows:

Execution of unprivileged Wills; Every testator, not being a soldier employed in an expedition nor engaged in actual warfare, (or an airman so employed or engaged) or a mariner at sea, shall execute his Will according to the following rules:

(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 end 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 acknowledgment 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.

Both the learned Counsel appearing for the Appellant and the contesting Respondents submitted the following principles laid down for proving a Will.

In Satipada Chatterjee Vs. Annakali Debya, it is held as follows:

The question whether a scribe can be regarded as an attesting witness has to be gathered from the circumstances of each case, the main test being whether the scribe signed the document with the intention of attesting the signature of the executant. The mere fact that the scribe wrote out the entire Will as also the endorsement ''Ishadi Lekhak'' does not necessarily lead to the conclusion that he has signed before the testator.

In 1969 SC 1147 (M.L. Abdul Jabbar Sahib v. H. Venkata Sastri and Sons and Ors. etc.) the Supreme Court has laid down the following principle:

If a person puts his signature on the document for some other purpose, e.g. to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.

In Kunhamina Umma and Others Vs. Special Tahsildar and Others, , this Court has laid down the following principle:

the certificate endorsed on a register deed by the registering officer is a relevant piece of evidence for proving the execution. It is also held that there must be specific pleading either in the statement or in the evidence of the party with reference to the execution of a document.

In 1982 SC 133 Smt. Indu Bala Bose and Ors. v. Manindra Chandra Bose and Anr., the Supreme Court has held as follows:

The mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of the 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 of the Will as genuine.

Now, on the above principle of law both statutory and settled, I can look into the evidence adduced by both the sides to record a finding whether Ext. B-1 Will is valid and genuine. A reading of Ext. B-1 would go to show that the testatrix at the time of execution of Ext. B-1 was 72 years old, that the property measuring 1 acre 19 cents with a building thereon has been bequeathed by the testatrix to her son, the Appellant, the propounder of the Will and that after her death the propounder of the Will, namely, the Appellant shall pay Rs. 250 to each of his four sisters including the three Plaintiffs herein. The Will has been admittedly written by D.W. 2, Scaria. The submissions of the learned Counsel appearing for the Appellant was that the first attestor in Ext. B-1, namely, Gopalakrishna Pillai, had already died and the scribe Scaria has signed Ext. B-1 in the capacity as a scribe as well as in the capacity of an attestor to the Will. Therefore, the examination of Scaria as D.W. 2 on the Appellants'' side is sufficient to satisfy the requirements contemplated u/s 68 of the Indian Evidence Act and u/s 63 of the Indian Succession Act and the above settled law that the Will should be attested by not less than 2 witnesses and at least one of the attesting witnesses should be examined. On the other hand, the learned Counsel appearing for the Respondents (Plaintiffs) submitted that D.W. 2 has signed Ext. B-1 only as a scribe and he had no intention at all to be an attesting witness to Ext. B-1 while putting his signature thereon. And, in the instant case, two attestors are said to have signed Ext. B-1 and no attesting witness has been examined to prove Ext. B-1 and therefore the first Defendant has miserably failed to discharge his burden of proving Ext. B-1 alleged Will. Therefore, he is entitled to only 1/5 share in the suit items.

In support of the above submission of the learned Counsel for the Appellant he drew my attention to the body of Ext. B-1 as well as the evidence of D.W. 2. In other words, the submission of the learned Counsel for the Appellant would be that due execution and due attestation of Ext. B-1 have been established by the Appellant. Now I will examine the above submission of the learned Counsel appearing for the Appellant. So far as the execution of a Will is concerned, no doubt, Supreme Court has held that the endorsements made by the Registrar at the time of registering the document amounts to some proof of execution. However, that alone is not sufficient for due execution of the document. Now I will look into Ext. B-1 which is written as follows:

(1)

(2)

On the above contents in Malayalam, the learned Counsel appearing for the Appellant submitted that it is obviously clear that the D.W. 2 has put his signature in Ext. B-1, in both the capacities as scribe and as attestor to Ext. B-1. As per the principles laid down in the above rulings a scribe can sign as an attestor also to the Will. But it is the duty of the propounder to establish that the scribe had the intention of being an attestor also to the Will while putting his signature therein. The above writings, as I have pointed out above, according to the learned Counsel appearing for the Appellant would satisfy the principle of law that D.W. 2 has put his signature in his capacity as a scribe as well as an attestor. He also relies upon No. 1 and No. 2 written in Ext. B-1. As against the above submission of the learned Counsel appearing for the Appellant, the learned Counsel appearing for the Respondents Plaintiffs would submit that the word used in Ext. B-1, is . That is to say there are two attestors. The writing No. 2 as well as the writing extracted above do not amount to attestation. On the other hand the scribe D.W. 2 had the intention of putting his signature only as a scribe and not as an attestor to Ext. B-1. In support of his argument, the learned Counsel appearing for the Respondents further drew my attention to the oral testimony given by D.W. 2. D.W. 2 in his oral evidence states as follows:

The above evidence of D.W. 2 is to the effect that in his presence two witnesses signed the document. When the above evidence of D.W. 2 is carefully examined with the signature and endorsement of the D.W. 2 in Ext. B-1, it is clear that there were two attesting witnesses who had signed Ext. B-1 and D.W. 2 is not an attestor and he has put his signature in Ext. B-1 only in the capacity as a scribe. Therefore the argument of the learned Counsel appearing for the Appellant that D.W. 2 put his signature in the Ext. B-1 Will in his capacity as a scribe and as an attestor is not correct. It is true, he has put his signature only as a scribe. For proving the execution of the Ext. B-1 document, I feel the evidence of D.W. 1 and D.W. 2 are sufficient. On the other hand the attestation of Ext. B-1 is not established as required by the statutory and settled propositions of law which I have extracted above. Both the Courts below, on going through the evidence as well as the settled and statutory propositions of law, have rendered concurrent findings that Ext. B-1 attestation is not established by the Appellant. Learned Counsel appearing for the Respondents further submitted that there is strong and suspicious circumstances with regard to Ext. B-1. That is to say, according to him, no sister will agree to receive Rs. 250 during that period for her share in the suit property measuring 1 acre and 19 cents. Further he submitted that when the mother had equal amount of affection towards her four daughters and son, she would not execute a Will bequeathing the entire suit property to the son and directing him to pay a sum of Rs. 250 to each one of her daughters towards their shares in the suit property. That argument as per the settled principle of law may not be correct. The discretion in bequeathing properties to the children purely depends upon the intention of the executant of the Will. Being a mother, in the present case on hand she can give larger extent of property to one of her children and smaller portions of property to other children. As I have stated above, the attestation of Ext. B-1 is not established by the Appellant. Hence, the findings of both the Courts below with regard to the attestation of Ext. B-1 are perfectly correct and this Court need not interfere into those findings. Therefore points raised above are answered against the Appellant. The learned Counsel appearing for the Appellant also submitted that there is no specific denial regarding the execution of the Will in the plaint as required in Rule 9, Order 8 Code of Civil Procedure. Order 8, Rule 9 is as follows:

Subsequent pleadings. No pleading subsequent to the written statement of a Defendant other than by way of defense to a set-off (or counter claim) shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.

A mere reading of the above Rule would evince that it is not applicable to the present case. However, only in the reply notice sent by the first Defendant on 30th September 1989, he has stated about the Will and the suit as pointed out above was filed on 27th September 1989. Only after filing the suit the reply has been received by the Plaintiffs Respondents from the Appellant (sent by his counsel). It is therefore, quite clear that on account of the above circumstance specific denial with reference to the Will could not be made by the Plaintiffs Respondents in the plaint. However, sufficient oral evidence they have let in with reference to not proving due attestation of the document. Hence, as I have pointed out above, specific denial of the Will in the plaint in no way would affect the case of the Respondents. The Appellant being a propounder of the Will has to establish both the due execution and due attestation of the Will in this case. As I have noted above, he has failed to prove attestation.

In the result, the appeal fails and accordingly it is dismissed confirming the concurrent findings of both the Courts below. The parties will bear their own costs.