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CASE NO.: Appeal (civil)  2034 of 2003

PETITIONER: Mathew Oommen

RESPONDENT: Suseela Mathew

DATE OF JUDGMENT: 03/01/2006

BENCH: B.P. SINGH & ARUN KUMAR

JUDGMENT: JUDGMENT

ARUN KUMAR, J.

       The appellant filed a petition for grant of letters of  administration in respect of a Will said to have been executed  by his father Late K.O. Mathew.  K.O. Mathew was a practicing  advocate of the local Bar.  The will in question is said to have  been executed on 15.10.1984.  The testator died on  24.10.1984.  The appellant is the sole beneficiary under the  will.  The testator was survived by three children i.e. son, the  appellant herein and two daughters named Suseela, the  contesting respondent, and Leela.  Both the daughters were  married during the lifetime of the testator and admittedly had  been well provided for at the time of their marriage by the  father.  Respondent is the only contestant, who herself is an  officer in the local Electricity Board while her husband was an  officer in the Army.  The other daughter Leela is a practicing  doctor with MD qualification.  The second daughter is not a  party to the proceedings.  She never contestd the Will of her  father.  The parties are Christians and were  governed by the  Travancore Christian Succession Act, 1917.  Under this Act  when a daughter is married and she is given Rs.5000/- or  more at the time of marriage, she has no  right of inheritance  in her father’s estate.  Respondent Suseela had admitted in  her statement as DW 1 that her father had given her  Rs.30,000/- and 45 gold sovereigns at the time of her  marriage.  However,  a question of validity of the Travancore  Christian Succession Act, 1917 had been raised and a writ  petition in this behalf was pending in this court at the relevant  time.  The testator who was himself a lawyer knew about the  pendency of the writ petition challenging the said Act and was  therefore, aware of the fact that in the event of the said Act  being declared illegal, his daughters would become entitled to  share in his estate.    This could be the reason that he  executed the Will in question.   The Will Exhibit A1 is hand written and is on a letter  head of the testator.  It is in the hand writing of his junior  named George Vallakalil.  It bears the signature of the testator  as well as of one Oommen who has signed as a witness.  Both  the witnesses to the Will are the distant relations of the   testator.

       The appellant applied for grant of Letters of  Administration with respect to the Will. On publication of the  notice of the petition for grant of letters of administration with

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respect to the Will, respondent Suseela filed her objection  opposing the grant of letters of administration.  The  propounder of the Will is the son of the testator while the  contestant is the daughter of the testator.  Thus both the  parties are real brother and sister.  The trial Court held that  the Will Exhibit A1 appears to have been written in a natural  flow.  It refuted the stand of the objector that it had been  prepared on a blank signed paper left by K.O. Mathew.  The  interesting part is that signatures of the testator on the Will  are not disputed by the respondent. Her only case is that the  Will has been prepared on a signed blank letter pad.  The trial  Court rejected the theory of fabrication of the Will.  The trial  Court observed that the testator was a leading advocate and it  was untenable that he would leave blank signed letter heads  on his table.  In fact, respondent who appeared as DW 1  admitted that her father    did   not    usually    leave signed  blank letter heads.  PW 1 who is the scribe as well as attesting  witness of the Will was admittedly working as junior with the  late testator.  His presence at the time of execution of the Will  appears to be natural.  He was working in the office of testator  as his junior.  The senior must have given his mind about  execution of the Will and as per instructions  of his senior, the  Will must have been scribed by the junior advocate.  Both the  attesting witnesses of the Will  have appeared as PW 1 and PW  2.  They have fully supported the Will by stating necessary  facts.  In fact, PW 1 who is scribe of the Will stated that he  read the Will to the testator after he had written it in his own  hand.  After reading and signing the Will, the testator returned  the Will to PW 1 who signed it thereafter in the presence of the  testator.  Thereafter the PW 1 handed over the Will to PW 2  who also signed it in the presence of testator.  PW 2 stated  that he was present throughout the execution of the Will.  The  trial Court held the Will to be genuine and granted the letters  of administration with respect to the Will Exhibit A1.         By a strange and wholly untenable reasoning the High  Court set aside the well considered judgment of the trial Court  and rejected the Will.  According to the High Court, the  language of the Will is not  normal. Secondly, the High Court  observed that if the testator wanted to execute a Will he could  have done so in a proper manner.  Thirdly, the High Court  observed that in view of the Travancore Christian Succession  Act, 1917, the testator who was himself an advocate, knew  that there was no need for a Will, why should testator make it?         We have perused the photocopy of the Will which is on  record.  It is a short Will and is reproduced as under:

(TYPED COPY OF ANNEXURE-P1) "K.O. MATHEW  B.A., B.L.                                        Phone  No.246         ADVOCATE                                                MAVELIKARA         VALLAKALIL                                                      KERALA

       Will  executed by K.O. Mathew, Advocate, Vallakalil,  Mavelikara.         I am executing this will with a free mind and independent  decision. I have two daughters who had been married and they  were given their due shares.  Therefore I hereby bequeath all  my assets including my residence and its premises extending  1 acre 52 = cents comprised in Sy. Nos.138 and 139 to my  son Mathew Oommen.  My wife will be entitled to reside in the  building and take the income from the above property.         Signed this the 15th day of October, 1984 in the presence  of                                                                               Sd/-  K.O. Mathew 1.      Written by George Vallakalil, Advocate  Sd/-

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2.      Witness                 K.C. Oommen Vallakalil Kalapurail Kuttempuram.      Sd/-

/True copy/"         We find nothing abnormal or unnatural in the above  document.  There  is nothing unnatural in a senior advocate of  advance age to ask his junior advocate to write down  something which he would like to be written.  This must have  happened in the present case.   Regarding the other  question  that there was no need to make a Will in view of the  Travancore Christian Succession Act, 1917, we are of the view  that it was all the more important for the testator to make the  Will because as a senior advocate he knew that the validity of  the Act had been questioned in this Court and in the event of  the Act being declared invalid, the course of inheritance would  change and daughters would get a share in his estate, which  he did not want.         Learned counsel for the respondent argued that the last  few words in the body of the Will appear to have been  squeezed in.  We are unable to accept this submission.  A bare  perusal of the Will is sufficient to reject this plea.  The  signatures of the testator on the Will are not disputed.  The  statements of PW 1 and PW 2 as attesting witnesses of the Will  are quite natural and trustworthy.  One of the attesting  witnesses was the junior advocate working with testator in his  office.  He has also scribed the Will.  He has appeared as PW 1  to support the execution of the Will.  He states that he is an  attesting witness to the Will as well as scribe of the Will.  The  other attesting witness has also appeared as PW 2.  He is a  distant relation of the testator.  From all this we find execution  of the Will quite natural and normal.  We are unable to accept  the contention of the learned counsel for the respondent that a  senior lawyer will not discuss about the Will with his junior.  It  was also suggested that nothing prevented the testator from  writing the Will himself.  This is no ground to reject a Will  which is otherwise perfect.  Another circumstance mentioned by the learned counsel  for the respondent for challenging the Will is that the  beneficiary never applied for probate or for mutation of the  property in his name  soon after the death of the father.  This  again is no reason to dislodge the Will.  The learned counsel  for the respondent also argued that the Will had not been  attested by two attesting witnesses as required under the law.   In support of this argument it was submitted that one of the  alleged attesting witness is only scribe of the Will and is not  attesting witness.  Regarding this objection we may note that  there is no requirement in law that a scribe cannot be an  attesting witness.  The person concerned has appeared in the  witness box as PW 1 and has clearly stated that he is a scribe  of the Will as well as he is an attesting witness of the Will.  For  attestation what is required is an intention to attest which is  clear from the statement of PW 1.  He categorically stated that  he has signed as an attestor and scribe.  In our view, the  requirement of attestation of the Will by two witnesses is fully  met in the present case.   After the execution was complete,  the testator kept the Will in the drawer of his table.    PW 1  has also mentioned the fact that the Will was executed  because the case was pending in this Court challenging  Travancore Christian Succession Act, 1917.  The testator who  was himself a lawyer knew this fact.  A perusal of the  statements of PW1, PW2 and PW3 further shows that they  have not been cross examined on the points now sought to be  urged before this Court.  It was never suggested to the  witnesses that the Will was scribed on a blank letter head

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containing signatures of the testator.  It was never suggested  that the Will had been fabricated.  It is not necessary to go into the judgments cited by the  learned counsel for respondent which lay down requirements  for attestation of Wills.  We find no merit in any of the  contentions raised on behalf of objector, the respondent  herein.  The impugned judgment of the High Court cannot be  sustained.  The same is accordingly set aside and that of the  trial Court is restored.  The appeal is allowed and stands  disposed of accordingly.  No order as to cost.