Ponnu vs Kasu

M.R.Anitha, J

This second appeal has been filed against the judgment and decree in A.S.No.69/1994 on the file of District Court, Palakkad which in turn arouse out of the judgment and decree in O.S.No.269/1990 on the file of the Munsiff's Court, Chittur.

The suit was one for partition and plaintiff is the appellant. (Parties would hereafter be referred as per their status before the trial court). Plaintiff and defendants 1 to 5 are children and 6th defendant is the wife of deceased Chamu. Plaint schedule properties originally belonged to Chamu who died three years before the filing of the suit. Since then, the first defendant, his only son is managing the properties. Though he promised to give separate shares to the plaintiff and the other defendants, he failed to do the same and hence lawyer notice was issued demanding partition for which there was no reply. Hence the suit.

First defendant filed written statement contending that the plaintiff and defendants 2 to 6 have no right over the property. During the lifetime of deceased Chamu, he executed a registered Will in favour of the first defendant and since his death, the first defendant is in possession and enjoyment of the said property since it was devolved upon him exclusively. Plaintiff and any of the other defendants have no right over the plaint schedule property.

After filing the written statement, plaintiff filed replication contending that Will is not true and valid nor executed on free will and volition of deceased Chamu. Execution of the Will is also denied. Chamu was sick and infirm during his last days due to paralysis and did not possess free will and capacity to dispose the property. It is also alleged that the Will is vitiated by suspicious circumstances.

Defendants 2 and 3 filed separate statements supporting the plaint averments. Remaining defendants were ex parte.

PW1 and PW2 were examined and Ext.A1 marked from the side of plaintiff. DW1 to DW4 examined and Exts.B1 and B2 were marked from the side of defendants. Ext.C1 Commission report also marked. On appreciating the facts and circumstances and evidence adduced, learned Munsiff found that execution of the Will Ext.B1 is proved through the evidence of DW2 and DW3. It is also found that first defendant failed to prove the authenticity of the Will and the Will is not genuine and does not affect the share of the other sharers and vitiated by suspicious circumstances. Hence the suit was decreed and plaintiff was allotted 1/7th share of the schedule properties.

Against which first defendant filed appeal before the District Court, Palakkad and by the impugned judgment, the learned District Judge reversed the judgment and decree passed by the trial court and dismissed the suit finding that execution of the Will has been proved by the propounder of the Will and genuineness of the Will has been proved through the attesting witnesses and no suspicious or vitiating circumstances has been proved and hence it is held that the testator has the mental capacity to execute the Will and the Will is genuine .

Aggrieved by the judgment and decree passed by the first appellate court, the plaintiff approaches this Court in second appeal. At the time of admission, following substantial question of law has been formulated by this Court:

“Whether the first appellate court was right in law in finding that the propounder of Ext.B1 Will has discharged the burden of proof for due execution of the Will.”

Lower court records were called for and both sides were heard.

According to the learned counsel for the appellant, genuineness of Ext.B1 Will is suspicious since the testator was 85 years old and was sick and infirm and laid up for five years prior to the execution of the Will due to paralysis and he did not possess any free will and capacity to execute the Will. It is also contended that the Will excludes all the heirs including the wife of the testator who might have shared all the feelings of the testator and no reason has been stated in the Will for excluding her. So, according to him, the execution of the Will is vitiated by suspicious circumstances and hence the judgment and decree passed by the first appellate court is to be set aside. Learned counsel placed reliance on Rani Purnima Debi and Another v. Kumar Khagendra Narayan Deb and Another : 1962 KHC 494 : AIR 1962 SC 567.

Learned counsel for the first defendant, on the other hand, would support the judgment and decree passed by the first appellate court and would contend that the execution of the Will is found to have been proved concurrently by the trial court as well as the first appellate court and no suspicious circumstance is pleaded or proved and the trial court by merely assuming some suspicion and supposition have come to a conclusion regarding suspicious circumstance in the execution of the Will which is not permissible under law. Learned counsel placed reliance on Madhukar D.Shende v. Tarabai Aba Shedage : 2002 KHC 1797 : 2002 (2) SCC 85 : AIR 2002 SC 637 and Johnson and Others v. Annie and Another : 2019(4) KHC 417 : ILR 2019(3) Ker.757.

First defendant propounder of the Will was examined as DW1 and his case is that he is quite unaware of the execution of the Will by the father and during his evidence also he stick to the above stand. He examined DW2 the scribe who prepared Ext.B1 Will and DW3 an attesting witness who is also a person in acquaintance with the deceased Chamu as well as the first defendant. It has been concurrently found by both courts that execution of the Will has been proved through the evidence of DW2 and 3 and that fact is not challenged also. So, the only question for consideration is whether the plaintiff could bring out any suspicious circumstance to find that the Will Ext.B1 executed is not a genuine. Learned counsel for the appellant/plaintiff in this context drew my attention to discussion on additional issue No.1 by the trial court wherein the court entered into a finding that Ext.B1 is not genuine and does not affect the share of other sharers. To arrive at that a conclusion, the factors which have been weighed by the court is that the attester is of 85 years old and he has got five female children and wife and the only son is the legatee. Further, it has been discussed that his wife might have shared all his feelings so long so forth and she is watching the suit as a silent spectator remaining ex parte and nothing has been stated as to why she was disinherited and is it because she has got sufficient funds. So, taking all those factors into account, it has been found that despite satisfactory proof as to execution it is to be held that the first defendant on whom the onus of proof lies has not satisfactorily discharged the burden as to the authenticity of the Will. The first appellate court, on the other hand, found that once the propounder of the Will has proved the execution, in the absence of any vitiating circumstance, the burden shifted to the person who is disputing the genuineness of the Will to prove otherwise. It is also found that Ext.B1 is a registered Will and though it is not a conclusive evidence, the fact of registration is a piece of supporting evidence and no suspicious circumstance or vitiating circumstance is pleaded in the replication.

Though the testator was 85 years old at the time of execution of the Will DW2 the Scribe as well as DW3 the attesting witness speak about his mental capacity to execute the Will. DW3 is also Land Tribunal agent who had prepared O.A petition filed before the Land Tribunal, for the deceased Chamu and in pursuance of which purchase certificate was obtained. DW2, the attestor of the Will categorically deposed in cross-examination that Chamu was fully healthy. DW3 the Scribe also deposed about the physical and mental capacity of the testator at the time of execution of the Will. During cross-examination, he also deposed that the wordings in Ext.B1 has been written as per the direction of the testator Chamu. So, nothing could be brought out from the evidence of DW2 and DW3 to show that testator was either physically or mentally not fit at the time of execution of the Will. That is the reason why learned Munsiff also found categorically that execution of the Will has been proved. But the learned Munsiff has been taken away by the fact that the testator was 85 years old and further that no share was set apart to the wife and no reason has been stated for disinheriting the wife or whether the wife was having sufficient funds etc are not revealed in the Will. So, whether those factors would enable the court to draw an inference regarding suspicious circumstance is the question to be considered.

Paragraph 23 of Rani Purnima Debi has been highlighted by the Learned counsel which reads thus:

“There is no doubt that 'if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the will) that the testator knew that it was a will the execution of which he was admitting, the fact that the will was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering. Law reports are full of cases in which registered wills have not been acted upon (see' for example, Vellasaway Sarvai v. L. Sivaraman Servai,(1) Surendra Nath Lahiri v. Jnanendra Nath Lahiri ( 2 ) and Girji Datt Singh v. Gangotri Datt Singh) (3). Therefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a will; though the fact that there has been registration would be an important circumstance in favour of the will being genuine if the evidence as to registration establishes that the testator admitted the execution of the will after knowing that it was a will the execution of which he was admitting."

What could be gathered from the above is that if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way that the testator knew that it was a will the execution of which he was admitting, the fact that the will Was registered would not be of much value. It is also held that registration may take place even without the executant really knowing what he was registering. So, it was held that mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a will. But in the present case, the plaintiff could not bring out any material to show that the registration was done in a perfunctory manner or that the Will was not read over to the testator or that the registration was done without the executant really knowing what he was registering.

In Madhukar D. Shende paragraphs 8 and 9 are relevant in this context which reads thus:

“The requirement of proof of a will is the same as any other document excepting that the evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the court either believes that the will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the will was duly executed by the testator, then the factum of execution of will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers. What was told by Baron Alderson to the Jury in R v. Hodge 1838, 2 Lewis CC 227 may be apposite to some extent "The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected hole; and the more ingenuous the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete." The conscience of the court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict positive or negative.

It is well-settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the court would not return a finding of 'not proved' merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance."

Here the propounder of the Will establish the competance of the testator to make the Will by examining DW2 and DW3 when such onus is discharged by the propounder proving the competance of the testator and execution of the Will the onus shifted to the plaintiff who opposes the Will to bring out any prima facie material to create suspicion regarding execution of the Will then only the onus will shift back to the propounder. During evidence Pw1 went to the extent of deposing that if she was aware of the will the suit would not have been filed.

Johnson relied on by the counsel would lay down the principle that attesting witness should not have any previous knowledge or information of identity of the testator and it is also held that one attesting witness can prove not only his own attestation but also of the co-attestor if he has witnessed the attestation of the co-attestor.

Para 15 of Uma Devi Nambiar & Ors vs T.C. Sidhan : 2004 (2) KLT 75 (SC) dealt with Will and principles to be considered which reads thus:

“A Will is executed to alter the ordinary mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring. As held in PPK Gopalan Nambiar v. PPK Balakrishnan Nambiar and Ors. (AIR 1995 SC 1852) it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstance, the Court has to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near relations (See Puspavati and Ors. v. Chandraja Kadamba and Ors. (AIR 1972 SC 2492). In Rabindra Nath Mukherjee and Anr. v. Panchanan Banerje (dead) by LRs. and Ors. (1995 (4) SCC 459), it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly.”

From the above, it can be seen that the Apex Court has held that exclusion of natural heirs by itself does not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly. So, in the present case, the fact that testator disinherited his wife and daughters and the entire property was set apart to the only son by itself cannot be taken as a suspicious circumstance. Moreover, it is to be noted that even though his wife was a party she remained ex parte and did not contest the matter and that also would indicate that it is with her full support or knowledge that the Will has been executed by the testator setting apart the entire property in favour of the son.

In Ramabai Padmakar Patil v Rukminibai Vishnu Vekhande : 2003 (3) KLT Online 1206 (SC) a two Judge Bench of the Apex Court dealt with suspicious circumstances in the context of execution of Will, paragraph No.8 is relevant in this context which reads thus:

“A Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be suspicious circumstance especially in a case where the bequest has been made in favour of an offspring. In PPK Gopalan Nambiar v. PPK Balakrishan Manbiar and Ors., AIR (1995) SC 1852 it has been held that it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. In this case, the fact that the whole estate was given to the son under the Will depriving two daughters was held to be not a suspicious circumstance and the finding to the contrary recorded by the District Court and the High Court was reversed. In Pushpavati and Ors. v. Chandraja Kadanba and Ors., AIR (1972) SC 2492, it has been held that if the propounder succeeds in removing the suspicious circumstance, the Court would have to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near relations. In Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (dead) by Lbs. and Ors., [1950] 4 SCC 459, it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession in and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly. The concurrent finding recorded by the District Court and the High Court for doubting the genuineness of the Will on the aforesaid ground was reversed.”

So, the very purpose of execution of the Will is for altering the mode of succession in the normal course. As has been held above, a Will is supposed to be executed when a person intends to set apart the property to a particular person even avoiding natural heirs. If at all the intention of the testator is to give the property to the natural heirs, there is no necessity for execution of a Will at all. The mere fact that natural heirs in this particular case including the wife has been excluded and the entire share has been given to one of the legal heirs by itself cannot be taken as a suspicious circumstance especially because the entire share has been given to the sole son of the testator. The doubt which has been expressed by the learned Munsiff for disinheriting the wife without assigning any reason as to whether she was having sufficient funds and non disclosure of the same in the will etc are only surmises of the learned Munsiff and cannot be taken as valid suspicion and can only be taken as a fantasy of doubt in the mind of the court which is not a criteria for finding suspicious circumstance of a Will which has been found to be duly executed by the trial court as well as the first appellate court.

In Mahesh Kumar v. Vinod Kumar : 2012 (1) KLT (Suppl) 62 (SC) it has been observed by the Apex Court that in case the priority is given only to some of the natural legal heirs in comparison to the other natural legal heirs then also for this very reason the Will cannot be held as invalid. In the present case, the trial court categorically found that the execution of the Will has been proved by the propounder through the examination of DW2 and DW3. It has also come out from the evidence of propounder as well as Dw3 that propounder was quite unaware of the execution of the Will and DW3 the attestor also categorically deposed that he did not reveal about the execution of the Will to the first defendant. So, there is no evidence whatsoever to draw an inference that either the 1st defendant was aware of the execution of the Will or he had participated in any way for getting the Will executed. So, the factors which have been weighed by the trial court regarding the age of the testator or the fact that his wife has been disinherited without assigning any reason etc are all factors which ought not have been weighed to draw an inference regarding suspicious circumstances. Something ought to have been brought out through the evidence of plaintiff or the first defendant or the witnesses to bring out any material to draw any inference regarding the suspicious circumstance. As has been rightly found by the first appellate court, the propounder of the Will has proved the execution of the Will and no material is forthcoming to prove any suspicious or vitiating circumstances in the execution of the Will by the testator. So there is no reason whatsoever to interfere with the finding so entered into by the first appellate court.

In the result appeal is found to be devoid of any merit and hence dismissed confirming the judgment and decree passed by the first appellate court. In view of the facts and circumstances and relationship between the parties there is no order as to costs.