Execution of a document and registration of a
document are totally different. The formalities for attestation
contemplated under Section 63 of the Indian Succession Act
is confined to the execution of a Will and not for its
registration. A Will is not a compulsorily registrable
document. In fact, registration has no importance at all;
whereas, registration may result in some sort of added
credibility on the proof of its execution. The presence of
identifying witnesses before the Registrar cannot be
substitute of valid attestation in the case of a Will. The
attestation contemplated under Section 63(c) of the Indian
Succession Act is confined to the execution and not the
registration.
25 On a perusal of Ext.B2 Will and the written
statement filed by defendants 1 to 3, it could be seen that
the date of execution of Ext.B2 Will is 21.03.2001. When
Ext.B2 Will was allegedly executed on 21.03.2001, it cannot
be said that the attestation of such a document was on
27.03.2001. The document was registered on 27.03.2001
only. When it is shown that the document was executed on
21.03.2001, that date should be the date of its execution as
well as attestation. It has clearly come out from the evidence
of DW2 and DW3, that Ext.B2 Will was not executed on
21.03.2001, which date it bears as the date of its execution.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE B.KEMAL PASHA
7TH DAY OF MARCH 2017
RSA.No. 779 of 2011
K.C.BINDU, D/O. CHOYIKUTTY,
Vs
LEELA KOLLANDI (DIED), W/O. VANNANKANDY
(1)Can the execution of a Will and its
attestation be on a date subsequent to the
date shown in it as the date of its execution?
(2)When the signatures of the testator in the
Will are totally different and dissimilar, is it not
the duty of the propounders to get those
signatures examined by an expert through
comparison with his admitted signatures?
2. Challenging the concurrent findings entered by the
Subordinate Judge's Court, Koyilandy in O.S.No.17/2006,
followed by those of the II Additional District Court,
Kozhikode in A.S.No.64/2007, the plaintiffs in the suit have
come up with the second appeal.
3. Initially, the suit was one for injunction simpliciter.
A decree of perpetual injunction was sought for to restrain
the defendants from forcibly evicting the plaintiffs from the
plaint schedule property and also restraining the first
defendant from creating any documents in respect of the
plaint schedule property and from alienating or encumbering
it and also from committing any waste thereon.
4. After the written statement, the plaintiffs amended
the plaint by incorporating a relief by way of declaration that
Ext.B2 Will dated 21.03.2001 registered as document
No.29/2001 of the Kozhikode Sub Registry is void and is not
binding on the plaintiffs, for declaring that document
No.3532/99 dated 27.12.1999 of the Payyoli Sub Registry is
null and void, for directing the 4th defendant to vacate plaint
B schedule property and to put the plaintiffs in possession of
plaint B schedule property, and also for restraining the 4th
defendant from committing trespass into any of the portions
of the plaint A schedule property, by a decree of perpetual
injunction. Plaint B schedule property is the portion of plaint
A schedule property. Plaint B schedule is having an extent
of 7 and 5/8 cents of property out of the plaint A schedule
property.
5. Plaint A schedule property originally belongs to
late Raghavan Vaidyar. The first defendant Leela is
presently no more and she is the wife of late Raghavan
Vaidyar. They have one son and two daughters. The son is
one Vinod who is presently no more. The 2nd and 3rd
defendants are the daughters. The first plaintiff is the wife
of late Vinod, and the 2nd plaintiff is their minor son.
According to the plaintiffs, late Raghavan Vaidyar had
executed Ext.A1 Will dated 28.06.1999 thereby bequeathing
the plaint A schedule property to his only son Vinod by
reserving the life interest of the first defendant on the said
property.
6. Raghavan Vaidyar died on 10.10.2002.
Subsequently Vindo met with a road traffic accident and
died on 29.02.2004, leaving the plaintiffs and the first
defendant as his legal heirs. On the date of execution of
Ext.A1 itself, late Raghavan Vaidyar had executed two more
settlement deeds of the very same Sub Registry, one in
respect of 12 cents of property in favour of Vinod and the
other in respect of 13 cents of property in favour of the 2nd
respondent. Ext.A2 is the said settlement deed executed in
favour of Vinod. It was in respect of the balance property
which was outstanding in his name, he executed Ext.A1
Will. The plaintiffs have alleged that after the death of Vinod,
there were attempts from the part of the defendants to
forcibly evict the plaintiffs from the plaint schedule property,
and hence the suit.
7. Defendants 1 to 3 propounded Ext.B2 Will and
contended that late Raghavan Vaidyar had executed Ext.B2
Will on 21.03.2001 and registered the same at the Sub
Registry office, Kozhikode, thereby revoking Ext.A1 Will as
well as another Will executed by him as document
No.48/1998 of the Payyoli Sub Registry. It is also contended
that late Raghavan Vaidyar had assigned the plaint B
schedule property to the 2nd defendant and subsequently the
2nd defendant has transferred the same to the 4th defendant
for consideration. Defendants 1 to 3 claimed bequest in
their favour on the basis of Ext.B2. When they propounded
Ext.B2, the plaint was amended by incorporating further
pleadings and the aforesaid reliefs in the plaint. Additional
written statement was also filed by the defendants. The first
defendant died on 20.03.2010.
8. On the amendment of the plaint, the suit exceeded
the pecuniary jurisdiction of the Munsiff's Court, Payyoli
thereby the plaint was returned for presentation before the
Subordinate Judge's Court, Koyilandy, where it was duly
presented.
9. On the side of the plaintiffs, PWs.1 to 5 were
examined and Exts.A1 to A11 were marked. On the side of
the defendants DWs.1 to 4 were examined and Exts.B1 to
B6 were marked.
10. The trial court upheld the validity of Ext.B2 Will
and the plaintiffs were non suited. Aggrieved by the said
judgment and decree, the plaintiffs filed A.S.No.64/2007.
The lower appellate court also concurred with the findings
entered by the trial court, and dismissed the appeal.
11. This Court had admitted this second appeal on
the following substantial questions of law:
"1) When the plaintiffs have
specifically pleaded that the signature of
the testator seen in Ext.B2 Will is not that
of deceased Raghavan Vaidyar, the
testator, and in spite of the direction to
produce the original of Ext.A1 Will,
respondents did not produce the original
will to compare the signature seen therein
with the signatures seen in Ext.B2 and at
the time of evidence DW1 admitted that
there is difference in the signature seen in
Ext.B2 with the signature of Raghavan
Vaidyar seen in Ext.A5, and defendants
have not taken any steps to prove that the
signature seen in Ext.B2 is that of
deceased testator, by getting a report of an
expert, whether courts below were justified
in proceeding to consider the genuineness
of Ext.B2 Will, as if the signature in Ext.B2
Will is admitted by the plaintiffs.
2) Whether on the evidence, courts
below were justified in holding that
propounders of Ext.B2 Will have
discharged the burden of proving Ext.B2 as
required under Section 63 of Indian
Succession Act and Section 68 of Indian
Evidence Act, in the light of the evidence of
DW2, one of the attesting witness.
3) Whether on the evidence, courts
below were justified in holding that
propounders of Ext.B2 Will, offered
satisfactory explanation for the suspicious
circumstances attributed to the execution
of Ext.B2 Will."
12. Heard the learned Senior Counsel Sri.T. Krishnan
Unni for the appellants and Advocate Sri. N. Subramanian
for the respondents.
13. The learned Senior Counsel for the appellants
has argued that even though the appellants have clearly
denied the signatures seen affixed in Ext.B2 as those of
Raghavan Vaidyar, no attempt has been made by the
defendants to get the signatures in Ext.B2 compared with
the other admitted signatures of late Raghavan Vaidyar. It is
argued that the signatures shown as those Raghavan
Vaidyar in Ext.B2 were not affixed by Raghavan Vaidyar. It
has been further argued that in the assignment deed in
favour of the 2nd respondent allegedly executed by
Raghavan Vaidyar in respect of plaint B schedule property
also, the signatures shown as those of Raghavan Vaidyar
were not affixed by him. It has also been argued that the
original of Ext.A1 as well as the aforesaid assignment deed
in favour of the 2nd defendant in respect of B schedule
property are not available with the plaintiffs. It has been
further argued that the execution of Ext.B2 is shrouded with
suspicion and the propounders of Ext.B2 have failed to
prove the genuineness of Ext.B2 Will and also to dispel the
suspicious circumstances exist in the execution of Ext.B2
Will. It has also been argued that both the courts below
have failed to consider that even the making of Ext.B2 Will
as well as the genuineness of Ext.B2 Will have not been
properly proved in terms of Section 63 of the Indian
Succession Act and Section 68 of the Indian Evidence Act.
14. Per contra, the learned counsel for the
respondents has taken this Court through the observations
made by the trial court as well as the lower appellate court
and argued that Ext.B2 Will clearly stands proved and its
genuineness also stands proved. It has been further argued
that even though the assignment deed executed by
Raghavan Vaidyar in respect of plaint B schedule property in
favour of the 2nd defendant, has been challenged by the
plaintiffs, the said document has not been produced. Even
though the plaintiffs wanted to get declaratory reliefs etc. in
respect of plaint B schedule property, the said document or
its copy has not been produced and therefore, the reliefs
sought for by the plaintiffs in respect of plaint B schedule
property cannot be entertained. It has also been argued
that on the execution of Ext.B2 Will, the earlier Ext.A1 Will
stands revoked and therefore, the parties have to go by the
recitals in Ext.B2 Will in respect of the property.
15. The learned Senior Counsel for the appellants
has pointed out the following circumstances as suspicious
circumstances, which exist in the execution of Ext.B2 Will:
(1) There was no reason for the late
Raghavan Vaidyar to revoke Ext.A1.
(2) The bequeath through Ext.A1 is in
favour of his only son and also there was a
reservation of life interest over the properties
covered by Ext.A1 in favour of wife of the
testator.
(3) All the earlier documents were
executed and registered at the Payyoli Sub
Registry Office; whereas Ext.B2 Will alone was
got registered at the Kozhikode Sub Registry
Office.
(4) Late Raghavan Vaidyar was suffering
from serious illness by the end of 1999 and he
could not even attend the marriage of his only
son because of his illness and physical
incapacity.
(5) Deceased Raghavan Vaidyar had no
disposing state of mind after 1999 and he had
not regained his health or recovered from
illness.
(6) The attestors to Ext.B2 Will are not
one of the relatives of the executant.
(7) The date of execution of Ext.B2 Will
and the date of its registration are different.
(8) Deceased Raghavan Vaidyar, who was
unable to travel that much distance could not
have gone to Kozhikode on such two occasions.
16. As per the guidelines given by the Apex Court in
its three Judge Bench decision in H. Venkatachala Iyengar
v. B.N. Thimmajamma and others[AIR 1959 SC 443]
followed by a catena of decisions of the Apex Court, it has
become trite law that it is for the propounder to prove the
genuineness of the contents of a Will and to dispel all the
suspicious circumstances exist in the execution of a Will. In
this particular case, on going through the judgment rendered
by the trial court and the judgment rendered by the lower
appellate court, it has clearly come out that both the courts
below were carried away and has not followed the aforesaid
principles. Both the courts below had taken the view that
the appellants have failed to prove any of the suspicious
circumstances in the execution of Ext.B2. The whole
approach made by both the courts below are apparently
erroneous.
17. The courts below ought to have considered
whether there were suspicious circumstances exist in the
execution of Ext.B2 Will and whether the propounder of
Ext.B2 Will could dispel all such suspicious circumstances.
Even though the plaintiffs have forwarded their claims based
on Ext.A1 Will, when Ext.B2 Will was propounded by
defendants 1 to 3 by contending that it is the last Will of the
testator, it is for defendants 1 to 3 to prove the genuineness
of Ext.B2 Will and they were duty bound to dispel all the
suspicious circumstances exist in the execution of Ext.B2
Will. Therefore, the whole approach made by both the
courts below were not on proper lines.
18. The learned Senior Counsel for the appellants
has invited the attention of this Court to Ext.B2 Will and has
pointed out that the signatures of testator on all the pages of
Ext.B2 Will are totally different and dissimilar to one another.
It seems that the signatures are blurred. It is the admitted
case of DW2, the scribe and DW3 the attesting witness that
the testator had shivering of his hand. Therefore, evidently,
the testator was not well. In fact, the signatures shown as
those of the testator in Ext.B2 Will, cannot be considered as
signatures; whereas it can only be considered as some
marks, which are not at all identifiable. When the plaintiffs
have clearly averred and alleged that those signatures were
not affixed by Raghavan Vaidyar, defendants 1 to 3 ought to
have got those signatures compared by an expert with the
admitted signatures of late Raghavan Vaidyar. The said
exercise was not done by defendants 1 to 3 for reasons best
known to them.
19. Another suspicious circumstance being relied on
by the plaintiffs is that late Raghavan Vaidyar had executed
and registered all the other documents relating to his
properties, at the Payyoli Sub Registry. In the case of
Ext.B2 Will, he has chosen the Kozhikode Sub Registry
Office, even when he was practically incapable even to
move. Any explanation on that aspect has not been given
by defendants 1 to 3. The only contention by the first
defendant as DW1 on that aspect is that it is the prerogative
of late Raghavan Vaidyar to execute Ext.B2 and he got it
registered at the Sub Registry Office, Kozhikode, and the
first plaintiff has no right to question it. Apart from that
contention, there is no explanation at all on that aspect. It is
also the admitted case of the first defendant that late
Raghavan Vaidyar did not attend the marriage of his only
son. The marriage was also in the year 1999. Her
explanation to that aspect is that there is no practice of the
parents attending the marriage of their son. The said
explanation is not at all believable. That itself paves the way
to this Court to think that the case forwarded by the plaintiffs
that late Raghavan Vaidyar was not even in a position to
attend the marriage of his son on account of his ill-health, is
believable. Apart from that, the signatures shown in Ext.B2
also clearly reveal that the said person, who had affixed
such signatures, was not capable of even signing the
document.
20. The evidence tendered by the defendants to
prove the execution of Ext.B2 Will and the genuineness of
Ext.B2 Will have also to be considered. DW2 is the scribe
who prepared Ext.B2 Will. Ext.B2 is dated 21.03.2001. The
date of execution of Ext.B2 Will is clearly shown as
21.03.2001. According to DW2, Ext.B2 was prepared as
instructed by Raghavan Vaidyar and his wife. At the same
time, DW1 who is the wife of testator, has clearly stated that
Raghavan Vaidyar was not in the habit of discussing such
matters with her. According to DW2, Ext.B2 Will was
registered on 27.03.001. He clearly narrated and explained
that on 27.03.2001 at 9.30 a.m., the testator, his wife and
two attestors came to his office. Ext.B2 Will was read over
to them. The testator signed in Ext.B2 Will in his presence
as well as in the presence of the attestors. Thereafter, the
attestors affixed their signatures. After that they went to the
Sub Registry office and got Ext.B2 Will registered.
21. In cross- examination, DW2 has clearly deposed
that Ext.B2 Will was prepared on 21.03.2001 and it was
signed on 27.03.2001. When he was asked whether the
testator and the attesting witnesses had affixed their
signatures in Ext.B2 Will on 21.03.2001, he clearly stated
that the signatures were affixed on 27.03.2001. In re-
examination he was made to say that Ext.B2 Will was
intended to be registered on 21st and thereby it was
prepared and subsequently it was postponed to 27th when
he was so instructed over phone.
22. DW3 is one of the attesting witnesses in Ext.B2.
His evidence in chief examination itself shows that the
document was read over to them and thereafter Raghavan
Vaidyar affixed his signature on all the pages of Ext.B2 Will
in his presence and the other attesting witnesses, and they
could see him signing it. Thereafter, he along with other
attesting witnesses, after writing their names and addresses
in the last page of Ext.B2 Will, affixed their signatures.
Strangely enough, DW3 has no case that he along with the
other attesting witnesses had affixed their signatures in the
presence of the testator or that the testator could see them
affixing their signatures in Ext.B2 Will. Therefore, such an
attestation cannot be treated as proper and valid attestation
within the meaning of S.63(c) of the Indian Succession Act.
23. In cross-examination, DW3 has deposed that the
testator had given instructions to the document writer to
prepare Ext.B2 Will while they were in the car. He clearly
admitted that it is false to state that the signatures were
affixed in Ext.B2 Will on 21.03.2001. Apart from that, the
credibility of DW3 has also to be considered. He has clearly
admitted that he was an accused in a vehicle theft case and
further that another case was there against him when he
was found in suspicious circumstances.
24. Execution of a document and registration of a
document are totally different. The formalities for attestation
contemplated under Section 63 of the Indian Succession Act
is confined to the execution of a Will and not for its
registration. A Will is not a compulsorily registrable
document. In fact, registration has no importance at all;
whereas, registration may result in some sort of added
credibility on the proof of its execution. The presence of
identifying witnesses before the Registrar cannot be
substitute of valid attestation in the case of a Will. The
attestation contemplated under Section 63(c) of the Indian
Succession Act is confined to the execution and not the
registration.
25 On a perusal of Ext.B2 Will and the written
statement filed by defendants 1 to 3, it could be seen that
the date of execution of Ext.B2 Will is 21.03.2001. When
Ext.B2 Will was allegedly executed on 21.03.2001, it cannot
be said that the attestation of such a document was on
27.03.2001. The document was registered on 27.03.2001
only. When it is shown that the document was executed on
21.03.2001, that date should be the date of its execution as
well as attestation. It has clearly come out from the evidence
of DW2 and DW3, that Ext.B2 Will was not executed on
21.03.2001, which date it bears as the date of its execution.
26. In cross-examination, DW1 has stated that she
was not consulted by Raghavan Vaidyar for the preparation
of Ext.B2 Will. At the same time, DW2 has stated that
instructions were given by Raghavan Vaidyar and his wife
jointly for the preparation of Ext.B2. DW1 has admitted that
till his death, Raghavan Vaidyar was residing with Vinod at
the house in the scheduled property. She has also admitted
that Raghavan Vaidyar had shivering of his hands.
27. DW1 has admitted that Raghavan Vaidyar did not
attend the marriage of his only son. According to her, they
had deputed the elder brother of Raghavan Vaidyar for the
marriage rituals. She admitted that she could realise the
contention resorted to by the plaintiffs that the signatures in
Ext.B2 were not affixed by Raghavan Vaidyar. She has
further admitted that she knew that the signatures could be
proved through proper comparison. According to her, the
difference in the signatures in Ext.B2 had occurred on
account of the shivering of the hand of Raghavan Vaidyar.
From the evidence of DW1, DW2 and DW3 and also the
contents of Ext.B1 as aforesaid, it has come out that the
execution of Ext.B2 is shrouded with suspicion. Not only
that the propounders could not prove the proper execution
and attestation of Ext.B2, but also that they could not dispel
any of the suspicious circumstances exist in the execution of
Ext.B2.
28. The defendants have failed to prove even the
making of the Will and its attestation. The signatures of the
testator in Ext.B2 have no resemblance to one another. In
such a case and especially when the plaintiffs had
contended that the signatures in Ext.B2 were not affixed by
late Raghavan Vaidyar, the propounders of Ext.B2 ought to
have attempted to prove the signatures through proper
comparison of the signatures in Ext.B2 with the admitted
signatures of Raghavan Vaidyar. They have not even cared
to produce the original of Ext.A1 as well as the original of
document No.3532/1999 of the Payyoli Sub Registry
allegedly executed by Raghavan Vaidyar in favour of the 2nd
defendant. They could have made use of that document in
order to have a comparison of the signatures of Raghavan
Vaidyar allegedly affixed by him in Ext.B2. That itself
aggravates suspicions in the execution of Ext.B2.
29. Even though DW1 has stated that the Raghavan
Vaidyar had ill feelings towards Vinod on account of the
atrocities from the part of Vinod, such alleged actions from
the part of Vinod have not been explained either in the
written statement or in the evidence. Apart from stating that
his behaviour was not good, nothing more has been
explained. The burden to prove the execution and
genuineness of Ext.B2, as well as to dispel all the
suspicious circumstances in the execution of Ext.B2, is on
the propounders of Ext.B2. They have failed to prove the
execution of Ext.B2 as well as the genuineness of its
contents. Further, they have failed to dispel all the
suspicious circumstances exist in the execution of Ext.B2.
Matters being so, Ext.B2 is of no use at all.
30. This Court had occasion to consider the doctrine
of dependant relative revocation in Vadakkayil Gopalan v.
Vadakkayil Paru and others [2013 (3) KLT 69], wherein it
has been held as follows:-
"The doctrine of dependent relative
revocation is explained by Jarman on Wills,
as follows:
"Where the act of destruction is connected
with the making of another will, so as fairly
to raise the inference that the testator
meant the revocation of the old to depend
upon the efficacy of the new disposition
intended to be substituted, such will be the
legal effect of the transaction and therefore,
if the will intended to be substituted is
inoperative from defect of attestation or any
other cause, the revocation fails also, and
the original will remains in force. The
doctrine, which has been described as
somewhat overloaded with unnecessary
polysyllables, applies whenever the
intention to revoke a will is conditional only
and the condition is not fulfilled, and the
doctrine may apply although the later will is
partially effective."
Of course, this Court has held that even in cases wherein
the doctrine of dependent relative revocation can be
applied, it does not mean that the genuineness of the
contents of the earlier will have to be swallowed and taken
as granted without proof of the contents of the Will as
contemplated under Section 63 of the Indian Succession Act
read with Section 68 of the Indian Evidence Act.
31. It is true that the defendants are not disputing or
challenging the execution of Ext.A1. It is a further fact that
when the said Will has been clearly revoked through Ext.B2,
the doctrine of dependent relative revocation comes into
play when Ext.B2 has failed on account of the lack of proof
of execution and attestation, and also on account of other
suspicious circumstances exist in the execution, which the
propounders have failed to dispel. Both the courts below
have committed grave error in upholding Ext.B2 and in non-
suiting the plaintiffs. Judgments and decrees passed by
both the courts below are liable to be set aside, and
appropriate reliefs have to be granted to the plaintiffs.
32. When Ext.B2 cannot be pressed into service and
the same cannot be relied on, the reliefs (A) and (B) sought
for by the plaintiffs can as such be granted. Relief B(a) has
also to be granted and it has to be declared that Ext.B2 is
void and illegal and the same does not bind the plaintiffs.
When document No.3532/99 dated 27.12.1999 of the
Payyoli Sub Registry has not been produced, relief B(b)
cannot be granted and the said document cannot be
declared to be null and void. Consequently, relief B(c) also
cannot be granted. Relief B(d) can be granted with a minor
modification that the 4th defendant and his men shall not
commit trespass into any of the portions of plaint A schedule
property, except plaint B schedule property, and he shall not
cause any hindrance or obstructions to the peaceful
possession and enjoyment of the plaintiffs over the plaint A
schedule property.
In the result, the Second Appeal is allowed and the
judgments and decrees passed by both the courts below are
set aside. The suit is decreed by granting the following
reliefs to the plaintiffs:-
(i) It is hereby declared that Ext.B2 is
void, illegal and inoperative and the same is
not binding on the plaintiffs or their rights over
the plaint A schedule property, except plaint B
schedule item.
(ii) The defendants are restrained by a
decree of perpetual injunction from forcibly
evicting the plaintiffs from the plaint A
schedule property, except plaint B schedule
item otherwise than through due process of
law, and they are restrained from
encumbering or alienating the said properties
and also from committing any sort of waste
thereon.
(iii) The 4th defendant and his men or
persons claiming under him are restrained by
a decree of perpetual injunction from
committing trespass into any of the portions
of plaint A schedule property other than plaint
B schedule item and from causing any
hindrance or obstruction to the peaceful
possession and enjoyment of the plaintiffs
over the said properties.
In the nature of this appeal, the parties shall bear their
respective costs. All pending interlocutory applications in
this appeal are closed.
Print Page
document are totally different. The formalities for attestation
contemplated under Section 63 of the Indian Succession Act
is confined to the execution of a Will and not for its
registration. A Will is not a compulsorily registrable
document. In fact, registration has no importance at all;
whereas, registration may result in some sort of added
credibility on the proof of its execution. The presence of
identifying witnesses before the Registrar cannot be
substitute of valid attestation in the case of a Will. The
attestation contemplated under Section 63(c) of the Indian
Succession Act is confined to the execution and not the
registration.
25 On a perusal of Ext.B2 Will and the written
statement filed by defendants 1 to 3, it could be seen that
the date of execution of Ext.B2 Will is 21.03.2001. When
Ext.B2 Will was allegedly executed on 21.03.2001, it cannot
be said that the attestation of such a document was on
27.03.2001. The document was registered on 27.03.2001
only. When it is shown that the document was executed on
21.03.2001, that date should be the date of its execution as
well as attestation. It has clearly come out from the evidence
of DW2 and DW3, that Ext.B2 Will was not executed on
21.03.2001, which date it bears as the date of its execution.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE B.KEMAL PASHA
7TH DAY OF MARCH 2017
RSA.No. 779 of 2011
K.C.BINDU, D/O. CHOYIKUTTY,
Vs
LEELA KOLLANDI (DIED), W/O. VANNANKANDY
(1)Can the execution of a Will and its
attestation be on a date subsequent to the
date shown in it as the date of its execution?
(2)When the signatures of the testator in the
Will are totally different and dissimilar, is it not
the duty of the propounders to get those
signatures examined by an expert through
comparison with his admitted signatures?
2. Challenging the concurrent findings entered by the
Subordinate Judge's Court, Koyilandy in O.S.No.17/2006,
followed by those of the II Additional District Court,
Kozhikode in A.S.No.64/2007, the plaintiffs in the suit have
come up with the second appeal.
3. Initially, the suit was one for injunction simpliciter.
A decree of perpetual injunction was sought for to restrain
the defendants from forcibly evicting the plaintiffs from the
plaint schedule property and also restraining the first
defendant from creating any documents in respect of the
plaint schedule property and from alienating or encumbering
it and also from committing any waste thereon.
4. After the written statement, the plaintiffs amended
the plaint by incorporating a relief by way of declaration that
Ext.B2 Will dated 21.03.2001 registered as document
No.29/2001 of the Kozhikode Sub Registry is void and is not
binding on the plaintiffs, for declaring that document
No.3532/99 dated 27.12.1999 of the Payyoli Sub Registry is
null and void, for directing the 4th defendant to vacate plaint
B schedule property and to put the plaintiffs in possession of
plaint B schedule property, and also for restraining the 4th
defendant from committing trespass into any of the portions
of the plaint A schedule property, by a decree of perpetual
injunction. Plaint B schedule property is the portion of plaint
A schedule property. Plaint B schedule is having an extent
of 7 and 5/8 cents of property out of the plaint A schedule
property.
5. Plaint A schedule property originally belongs to
late Raghavan Vaidyar. The first defendant Leela is
presently no more and she is the wife of late Raghavan
Vaidyar. They have one son and two daughters. The son is
one Vinod who is presently no more. The 2nd and 3rd
defendants are the daughters. The first plaintiff is the wife
of late Vinod, and the 2nd plaintiff is their minor son.
According to the plaintiffs, late Raghavan Vaidyar had
executed Ext.A1 Will dated 28.06.1999 thereby bequeathing
the plaint A schedule property to his only son Vinod by
reserving the life interest of the first defendant on the said
property.
6. Raghavan Vaidyar died on 10.10.2002.
Subsequently Vindo met with a road traffic accident and
died on 29.02.2004, leaving the plaintiffs and the first
defendant as his legal heirs. On the date of execution of
Ext.A1 itself, late Raghavan Vaidyar had executed two more
settlement deeds of the very same Sub Registry, one in
respect of 12 cents of property in favour of Vinod and the
other in respect of 13 cents of property in favour of the 2nd
respondent. Ext.A2 is the said settlement deed executed in
favour of Vinod. It was in respect of the balance property
which was outstanding in his name, he executed Ext.A1
Will. The plaintiffs have alleged that after the death of Vinod,
there were attempts from the part of the defendants to
forcibly evict the plaintiffs from the plaint schedule property,
and hence the suit.
7. Defendants 1 to 3 propounded Ext.B2 Will and
contended that late Raghavan Vaidyar had executed Ext.B2
Will on 21.03.2001 and registered the same at the Sub
Registry office, Kozhikode, thereby revoking Ext.A1 Will as
well as another Will executed by him as document
No.48/1998 of the Payyoli Sub Registry. It is also contended
that late Raghavan Vaidyar had assigned the plaint B
schedule property to the 2nd defendant and subsequently the
2nd defendant has transferred the same to the 4th defendant
for consideration. Defendants 1 to 3 claimed bequest in
their favour on the basis of Ext.B2. When they propounded
Ext.B2, the plaint was amended by incorporating further
pleadings and the aforesaid reliefs in the plaint. Additional
written statement was also filed by the defendants. The first
defendant died on 20.03.2010.
8. On the amendment of the plaint, the suit exceeded
the pecuniary jurisdiction of the Munsiff's Court, Payyoli
thereby the plaint was returned for presentation before the
Subordinate Judge's Court, Koyilandy, where it was duly
presented.
9. On the side of the plaintiffs, PWs.1 to 5 were
examined and Exts.A1 to A11 were marked. On the side of
the defendants DWs.1 to 4 were examined and Exts.B1 to
B6 were marked.
10. The trial court upheld the validity of Ext.B2 Will
and the plaintiffs were non suited. Aggrieved by the said
judgment and decree, the plaintiffs filed A.S.No.64/2007.
The lower appellate court also concurred with the findings
entered by the trial court, and dismissed the appeal.
11. This Court had admitted this second appeal on
the following substantial questions of law:
"1) When the plaintiffs have
specifically pleaded that the signature of
the testator seen in Ext.B2 Will is not that
of deceased Raghavan Vaidyar, the
testator, and in spite of the direction to
produce the original of Ext.A1 Will,
respondents did not produce the original
will to compare the signature seen therein
with the signatures seen in Ext.B2 and at
the time of evidence DW1 admitted that
there is difference in the signature seen in
Ext.B2 with the signature of Raghavan
Vaidyar seen in Ext.A5, and defendants
have not taken any steps to prove that the
signature seen in Ext.B2 is that of
deceased testator, by getting a report of an
expert, whether courts below were justified
in proceeding to consider the genuineness
of Ext.B2 Will, as if the signature in Ext.B2
Will is admitted by the plaintiffs.
2) Whether on the evidence, courts
below were justified in holding that
propounders of Ext.B2 Will have
discharged the burden of proving Ext.B2 as
required under Section 63 of Indian
Succession Act and Section 68 of Indian
Evidence Act, in the light of the evidence of
DW2, one of the attesting witness.
3) Whether on the evidence, courts
below were justified in holding that
propounders of Ext.B2 Will, offered
satisfactory explanation for the suspicious
circumstances attributed to the execution
of Ext.B2 Will."
12. Heard the learned Senior Counsel Sri.T. Krishnan
Unni for the appellants and Advocate Sri. N. Subramanian
for the respondents.
13. The learned Senior Counsel for the appellants
has argued that even though the appellants have clearly
denied the signatures seen affixed in Ext.B2 as those of
Raghavan Vaidyar, no attempt has been made by the
defendants to get the signatures in Ext.B2 compared with
the other admitted signatures of late Raghavan Vaidyar. It is
argued that the signatures shown as those Raghavan
Vaidyar in Ext.B2 were not affixed by Raghavan Vaidyar. It
has been further argued that in the assignment deed in
favour of the 2nd respondent allegedly executed by
Raghavan Vaidyar in respect of plaint B schedule property
also, the signatures shown as those of Raghavan Vaidyar
were not affixed by him. It has also been argued that the
original of Ext.A1 as well as the aforesaid assignment deed
in favour of the 2nd defendant in respect of B schedule
property are not available with the plaintiffs. It has been
further argued that the execution of Ext.B2 is shrouded with
suspicion and the propounders of Ext.B2 have failed to
prove the genuineness of Ext.B2 Will and also to dispel the
suspicious circumstances exist in the execution of Ext.B2
Will. It has also been argued that both the courts below
have failed to consider that even the making of Ext.B2 Will
as well as the genuineness of Ext.B2 Will have not been
properly proved in terms of Section 63 of the Indian
Succession Act and Section 68 of the Indian Evidence Act.
14. Per contra, the learned counsel for the
respondents has taken this Court through the observations
made by the trial court as well as the lower appellate court
and argued that Ext.B2 Will clearly stands proved and its
genuineness also stands proved. It has been further argued
that even though the assignment deed executed by
Raghavan Vaidyar in respect of plaint B schedule property in
favour of the 2nd defendant, has been challenged by the
plaintiffs, the said document has not been produced. Even
though the plaintiffs wanted to get declaratory reliefs etc. in
respect of plaint B schedule property, the said document or
its copy has not been produced and therefore, the reliefs
sought for by the plaintiffs in respect of plaint B schedule
property cannot be entertained. It has also been argued
that on the execution of Ext.B2 Will, the earlier Ext.A1 Will
stands revoked and therefore, the parties have to go by the
recitals in Ext.B2 Will in respect of the property.
15. The learned Senior Counsel for the appellants
has pointed out the following circumstances as suspicious
circumstances, which exist in the execution of Ext.B2 Will:
(1) There was no reason for the late
Raghavan Vaidyar to revoke Ext.A1.
(2) The bequeath through Ext.A1 is in
favour of his only son and also there was a
reservation of life interest over the properties
covered by Ext.A1 in favour of wife of the
testator.
(3) All the earlier documents were
executed and registered at the Payyoli Sub
Registry Office; whereas Ext.B2 Will alone was
got registered at the Kozhikode Sub Registry
Office.
(4) Late Raghavan Vaidyar was suffering
from serious illness by the end of 1999 and he
could not even attend the marriage of his only
son because of his illness and physical
incapacity.
(5) Deceased Raghavan Vaidyar had no
disposing state of mind after 1999 and he had
not regained his health or recovered from
illness.
(6) The attestors to Ext.B2 Will are not
one of the relatives of the executant.
(7) The date of execution of Ext.B2 Will
and the date of its registration are different.
(8) Deceased Raghavan Vaidyar, who was
unable to travel that much distance could not
have gone to Kozhikode on such two occasions.
16. As per the guidelines given by the Apex Court in
its three Judge Bench decision in H. Venkatachala Iyengar
v. B.N. Thimmajamma and others[AIR 1959 SC 443]
followed by a catena of decisions of the Apex Court, it has
become trite law that it is for the propounder to prove the
genuineness of the contents of a Will and to dispel all the
suspicious circumstances exist in the execution of a Will. In
this particular case, on going through the judgment rendered
by the trial court and the judgment rendered by the lower
appellate court, it has clearly come out that both the courts
below were carried away and has not followed the aforesaid
principles. Both the courts below had taken the view that
the appellants have failed to prove any of the suspicious
circumstances in the execution of Ext.B2. The whole
approach made by both the courts below are apparently
erroneous.
17. The courts below ought to have considered
whether there were suspicious circumstances exist in the
execution of Ext.B2 Will and whether the propounder of
Ext.B2 Will could dispel all such suspicious circumstances.
Even though the plaintiffs have forwarded their claims based
on Ext.A1 Will, when Ext.B2 Will was propounded by
defendants 1 to 3 by contending that it is the last Will of the
testator, it is for defendants 1 to 3 to prove the genuineness
of Ext.B2 Will and they were duty bound to dispel all the
suspicious circumstances exist in the execution of Ext.B2
Will. Therefore, the whole approach made by both the
courts below were not on proper lines.
18. The learned Senior Counsel for the appellants
has invited the attention of this Court to Ext.B2 Will and has
pointed out that the signatures of testator on all the pages of
Ext.B2 Will are totally different and dissimilar to one another.
It seems that the signatures are blurred. It is the admitted
case of DW2, the scribe and DW3 the attesting witness that
the testator had shivering of his hand. Therefore, evidently,
the testator was not well. In fact, the signatures shown as
those of the testator in Ext.B2 Will, cannot be considered as
signatures; whereas it can only be considered as some
marks, which are not at all identifiable. When the plaintiffs
have clearly averred and alleged that those signatures were
not affixed by Raghavan Vaidyar, defendants 1 to 3 ought to
have got those signatures compared by an expert with the
admitted signatures of late Raghavan Vaidyar. The said
exercise was not done by defendants 1 to 3 for reasons best
known to them.
19. Another suspicious circumstance being relied on
by the plaintiffs is that late Raghavan Vaidyar had executed
and registered all the other documents relating to his
properties, at the Payyoli Sub Registry. In the case of
Ext.B2 Will, he has chosen the Kozhikode Sub Registry
Office, even when he was practically incapable even to
move. Any explanation on that aspect has not been given
by defendants 1 to 3. The only contention by the first
defendant as DW1 on that aspect is that it is the prerogative
of late Raghavan Vaidyar to execute Ext.B2 and he got it
registered at the Sub Registry Office, Kozhikode, and the
first plaintiff has no right to question it. Apart from that
contention, there is no explanation at all on that aspect. It is
also the admitted case of the first defendant that late
Raghavan Vaidyar did not attend the marriage of his only
son. The marriage was also in the year 1999. Her
explanation to that aspect is that there is no practice of the
parents attending the marriage of their son. The said
explanation is not at all believable. That itself paves the way
to this Court to think that the case forwarded by the plaintiffs
that late Raghavan Vaidyar was not even in a position to
attend the marriage of his son on account of his ill-health, is
believable. Apart from that, the signatures shown in Ext.B2
also clearly reveal that the said person, who had affixed
such signatures, was not capable of even signing the
document.
20. The evidence tendered by the defendants to
prove the execution of Ext.B2 Will and the genuineness of
Ext.B2 Will have also to be considered. DW2 is the scribe
who prepared Ext.B2 Will. Ext.B2 is dated 21.03.2001. The
date of execution of Ext.B2 Will is clearly shown as
21.03.2001. According to DW2, Ext.B2 was prepared as
instructed by Raghavan Vaidyar and his wife. At the same
time, DW1 who is the wife of testator, has clearly stated that
Raghavan Vaidyar was not in the habit of discussing such
matters with her. According to DW2, Ext.B2 Will was
registered on 27.03.001. He clearly narrated and explained
that on 27.03.2001 at 9.30 a.m., the testator, his wife and
two attestors came to his office. Ext.B2 Will was read over
to them. The testator signed in Ext.B2 Will in his presence
as well as in the presence of the attestors. Thereafter, the
attestors affixed their signatures. After that they went to the
Sub Registry office and got Ext.B2 Will registered.
21. In cross- examination, DW2 has clearly deposed
that Ext.B2 Will was prepared on 21.03.2001 and it was
signed on 27.03.2001. When he was asked whether the
testator and the attesting witnesses had affixed their
signatures in Ext.B2 Will on 21.03.2001, he clearly stated
that the signatures were affixed on 27.03.2001. In re-
examination he was made to say that Ext.B2 Will was
intended to be registered on 21st and thereby it was
prepared and subsequently it was postponed to 27th when
he was so instructed over phone.
22. DW3 is one of the attesting witnesses in Ext.B2.
His evidence in chief examination itself shows that the
document was read over to them and thereafter Raghavan
Vaidyar affixed his signature on all the pages of Ext.B2 Will
in his presence and the other attesting witnesses, and they
could see him signing it. Thereafter, he along with other
attesting witnesses, after writing their names and addresses
in the last page of Ext.B2 Will, affixed their signatures.
Strangely enough, DW3 has no case that he along with the
other attesting witnesses had affixed their signatures in the
presence of the testator or that the testator could see them
affixing their signatures in Ext.B2 Will. Therefore, such an
attestation cannot be treated as proper and valid attestation
within the meaning of S.63(c) of the Indian Succession Act.
23. In cross-examination, DW3 has deposed that the
testator had given instructions to the document writer to
prepare Ext.B2 Will while they were in the car. He clearly
admitted that it is false to state that the signatures were
affixed in Ext.B2 Will on 21.03.2001. Apart from that, the
credibility of DW3 has also to be considered. He has clearly
admitted that he was an accused in a vehicle theft case and
further that another case was there against him when he
was found in suspicious circumstances.
24. Execution of a document and registration of a
document are totally different. The formalities for attestation
contemplated under Section 63 of the Indian Succession Act
is confined to the execution of a Will and not for its
registration. A Will is not a compulsorily registrable
document. In fact, registration has no importance at all;
whereas, registration may result in some sort of added
credibility on the proof of its execution. The presence of
identifying witnesses before the Registrar cannot be
substitute of valid attestation in the case of a Will. The
attestation contemplated under Section 63(c) of the Indian
Succession Act is confined to the execution and not the
registration.
25 On a perusal of Ext.B2 Will and the written
statement filed by defendants 1 to 3, it could be seen that
the date of execution of Ext.B2 Will is 21.03.2001. When
Ext.B2 Will was allegedly executed on 21.03.2001, it cannot
be said that the attestation of such a document was on
27.03.2001. The document was registered on 27.03.2001
only. When it is shown that the document was executed on
21.03.2001, that date should be the date of its execution as
well as attestation. It has clearly come out from the evidence
of DW2 and DW3, that Ext.B2 Will was not executed on
21.03.2001, which date it bears as the date of its execution.
26. In cross-examination, DW1 has stated that she
was not consulted by Raghavan Vaidyar for the preparation
of Ext.B2 Will. At the same time, DW2 has stated that
instructions were given by Raghavan Vaidyar and his wife
jointly for the preparation of Ext.B2. DW1 has admitted that
till his death, Raghavan Vaidyar was residing with Vinod at
the house in the scheduled property. She has also admitted
that Raghavan Vaidyar had shivering of his hands.
27. DW1 has admitted that Raghavan Vaidyar did not
attend the marriage of his only son. According to her, they
had deputed the elder brother of Raghavan Vaidyar for the
marriage rituals. She admitted that she could realise the
contention resorted to by the plaintiffs that the signatures in
Ext.B2 were not affixed by Raghavan Vaidyar. She has
further admitted that she knew that the signatures could be
proved through proper comparison. According to her, the
difference in the signatures in Ext.B2 had occurred on
account of the shivering of the hand of Raghavan Vaidyar.
From the evidence of DW1, DW2 and DW3 and also the
contents of Ext.B1 as aforesaid, it has come out that the
execution of Ext.B2 is shrouded with suspicion. Not only
that the propounders could not prove the proper execution
and attestation of Ext.B2, but also that they could not dispel
any of the suspicious circumstances exist in the execution of
Ext.B2.
28. The defendants have failed to prove even the
making of the Will and its attestation. The signatures of the
testator in Ext.B2 have no resemblance to one another. In
such a case and especially when the plaintiffs had
contended that the signatures in Ext.B2 were not affixed by
late Raghavan Vaidyar, the propounders of Ext.B2 ought to
have attempted to prove the signatures through proper
comparison of the signatures in Ext.B2 with the admitted
signatures of Raghavan Vaidyar. They have not even cared
to produce the original of Ext.A1 as well as the original of
document No.3532/1999 of the Payyoli Sub Registry
allegedly executed by Raghavan Vaidyar in favour of the 2nd
defendant. They could have made use of that document in
order to have a comparison of the signatures of Raghavan
Vaidyar allegedly affixed by him in Ext.B2. That itself
aggravates suspicions in the execution of Ext.B2.
29. Even though DW1 has stated that the Raghavan
Vaidyar had ill feelings towards Vinod on account of the
atrocities from the part of Vinod, such alleged actions from
the part of Vinod have not been explained either in the
written statement or in the evidence. Apart from stating that
his behaviour was not good, nothing more has been
explained. The burden to prove the execution and
genuineness of Ext.B2, as well as to dispel all the
suspicious circumstances in the execution of Ext.B2, is on
the propounders of Ext.B2. They have failed to prove the
execution of Ext.B2 as well as the genuineness of its
contents. Further, they have failed to dispel all the
suspicious circumstances exist in the execution of Ext.B2.
Matters being so, Ext.B2 is of no use at all.
30. This Court had occasion to consider the doctrine
of dependant relative revocation in Vadakkayil Gopalan v.
Vadakkayil Paru and others [2013 (3) KLT 69], wherein it
has been held as follows:-
"The doctrine of dependent relative
revocation is explained by Jarman on Wills,
as follows:
"Where the act of destruction is connected
with the making of another will, so as fairly
to raise the inference that the testator
meant the revocation of the old to depend
upon the efficacy of the new disposition
intended to be substituted, such will be the
legal effect of the transaction and therefore,
if the will intended to be substituted is
inoperative from defect of attestation or any
other cause, the revocation fails also, and
the original will remains in force. The
doctrine, which has been described as
somewhat overloaded with unnecessary
polysyllables, applies whenever the
intention to revoke a will is conditional only
and the condition is not fulfilled, and the
doctrine may apply although the later will is
partially effective."
Of course, this Court has held that even in cases wherein
the doctrine of dependent relative revocation can be
applied, it does not mean that the genuineness of the
contents of the earlier will have to be swallowed and taken
as granted without proof of the contents of the Will as
contemplated under Section 63 of the Indian Succession Act
read with Section 68 of the Indian Evidence Act.
31. It is true that the defendants are not disputing or
challenging the execution of Ext.A1. It is a further fact that
when the said Will has been clearly revoked through Ext.B2,
the doctrine of dependent relative revocation comes into
play when Ext.B2 has failed on account of the lack of proof
of execution and attestation, and also on account of other
suspicious circumstances exist in the execution, which the
propounders have failed to dispel. Both the courts below
have committed grave error in upholding Ext.B2 and in non-
suiting the plaintiffs. Judgments and decrees passed by
both the courts below are liable to be set aside, and
appropriate reliefs have to be granted to the plaintiffs.
32. When Ext.B2 cannot be pressed into service and
the same cannot be relied on, the reliefs (A) and (B) sought
for by the plaintiffs can as such be granted. Relief B(a) has
also to be granted and it has to be declared that Ext.B2 is
void and illegal and the same does not bind the plaintiffs.
When document No.3532/99 dated 27.12.1999 of the
Payyoli Sub Registry has not been produced, relief B(b)
cannot be granted and the said document cannot be
declared to be null and void. Consequently, relief B(c) also
cannot be granted. Relief B(d) can be granted with a minor
modification that the 4th defendant and his men shall not
commit trespass into any of the portions of plaint A schedule
property, except plaint B schedule property, and he shall not
cause any hindrance or obstructions to the peaceful
possession and enjoyment of the plaintiffs over the plaint A
schedule property.
In the result, the Second Appeal is allowed and the
judgments and decrees passed by both the courts below are
set aside. The suit is decreed by granting the following
reliefs to the plaintiffs:-
(i) It is hereby declared that Ext.B2 is
void, illegal and inoperative and the same is
not binding on the plaintiffs or their rights over
the plaint A schedule property, except plaint B
schedule item.
(ii) The defendants are restrained by a
decree of perpetual injunction from forcibly
evicting the plaintiffs from the plaint A
schedule property, except plaint B schedule
item otherwise than through due process of
law, and they are restrained from
encumbering or alienating the said properties
and also from committing any sort of waste
thereon.
(iii) The 4th defendant and his men or
persons claiming under him are restrained by
a decree of perpetual injunction from
committing trespass into any of the portions
of plaint A schedule property other than plaint
B schedule item and from causing any
hindrance or obstruction to the peaceful
possession and enjoyment of the plaintiffs
over the said properties.
In the nature of this appeal, the parties shall bear their
respective costs. All pending interlocutory applications in
this appeal are closed.
No comments:
Post a Comment