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CASE NO.: Appeal (civil)  4882 of 2007

PETITIONER: Savithri & Ors

RESPONDENT: Karthyayani Amma & Ors

DATE OF JUDGMENT: 12/10/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T [Arising out of SLP (Civil) No. 3374 of 2005] S.B. SINHA,  J :

1.      Leave granted.

2.      The question involved in this appeal is the validity of a Will dated  07.08.1971 executed by one Sankaran Nair.   

3.      For the sake of convenience,  the  genealogical table may be noticed at  the outset :                                            Krishnan Nair                           Kochukutty       [brother]                                       @ Kuttipenamma [sister]  [Died unmarried in 1971]                         [Dead]                                                       |                                                      |                         __________________|____________________                         |                                                            |                           |                                                            |                 Sankaran Nair                                     Nanikutty Amma                 [Died in 1978]                                            [Dead]                         |                         |                                                           |                    Madhavan Nair                                                    |        

                                                                                          |

                                                                       _______ |_______                                                                           |                  |                                                                        D-1                          D-2                                                                           |                                                                   D-3 to D-8     

4.      The properties in suit were purchased by Krishanan Nair and  Kochukutty @ Kuttipennamma, mother of Respondent Nos. 1 and 2 and  grandmother of Respondent Nos. 3 to 8 herein.  Krishnan Nair was a  bachelor.  Kochukutty had two children, Sankaran Nair and Nanikutty  Amma.  They were governed by Marumakkattayam School of Law.    Appellants herein are wife, son and daughters of Madhavan Nair son of  Sankaran Nair (Plaintiff).   Respondent Nos. 1 and 2  herein  (Original  Defendant Nos. 1 and 2) and Respondent Nos. 3 to  8 herein (Original  Defendant Nos. 3 to 8)  are children and grandchildren respectively of  Nanikutty Amma (sister of Sankaran Nair).   Sankaran Nair died in 1978.   Indisputably, the relationship between Sankaran Nair and his wife was  strained.  They were living separately.  Sankaran Nair had been living with

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his sister and her children.  They were looking after him.  He was suffering  from cancer.  Respondents herein were bearing all costs for  his treatment.   

    Execution of the said will is not in dispute.  What is contended is that  the same was surrounded by suspicious circumstances  which, according to  the appellants, were :

1.      Registrar was brought to the house of the propounder which  proves that the testator was not in good health and mental  condition at the time of execution of the Will. 2.      DW-2,  who was an attesting witness to the Will, in his  deposition stated that he had not seen the execution of the Will.  He had also no previous acquaintance with the parties. 3.      Other witnesses to the execution of the Will were beneficiaries  under the Will. 4.      Even when execution and registration of the Will had taken  place at the house, there was no reason as to why anybody from  the locality had not attested the Will as a witness.            5.      In the year 1986, Plaintiff having come to know that Respondent No.  3  was going to construct a house on the said land,  filed a suit for partition  as also for cancellation of the said Will.  The said suit was decreed by the  learned Subordinate Judge by a judgment and order dated 18.01.1992,  holding, inter alia,  :

\023\005The plaintiff had stated that at the time of execution  of the will the testator was not in a sound disposing state  of mind and he did not sign the document after knowing  the contents of the same.  In such circumstances, the  propounder has to prove that the testator signed the  document in the presence of two attesting witnesses who  signed it in the presence of each other.  The important  aspect is that Sankaran Nair was not having testamentary  capacity at the time of execution of Ext. A1 is more or  less admitted by the defendants.  In chief examination of  PW-4 he has stated that the Sankaran Nair was not able  to execute Ext. A4 and he was not in such a mental  condition to execute such a document.  That statement in  chief examination is not cross-examined\005\024

       It was further observed  :

        \023\005The definite case of the plaintiff is that all the  documents were executed at the instance of Narayanan  Nair.  On cardinal scrutiny of the entire evidence as a  whole it can be seen that Narayanan Nair is the actual  person behind the execution of all the documents\005\024

       The learned Trial Judge also  observed :  

        \023\005It is also not proved whether the testator signed the  document after knowing the contents of the documents.   If the relationship of the testator with the son was so  strange, there was no necessity for him to reserve  Rs.500/- to his son in Ext.A4.  If he reserves Rs. 500/- to  his son in Ext. A4 that means he has an affection towards  his son during his life time.  Therefore, he might have  intended to give the property to his son after his death.   There was no necessity for him to bequeath his property  to the defendants who are living along with him and

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taking the income from the property.  That income is  sufficient for his maintenance and there is no necessity  for bequeathing the entire property to the defendants as  Ext. A4\005\024

 6.      An appeal preferred thereagainst, however, has been allowed by  reason of the impugned judgment dated 17.08.2004, holding :

\023\005The plaintiff  who could claim as legal heir of  Sankaran Nair has no right to challenge the partition deed  executed by Sankaran Nair and others except on  establishment of the fact that Sankaran Nair was not in a  position to understand the contents of the partition deed  or that fraud was played on him while effecting partition  which he did not find out during his life time\005\024

       The High Court further observed :

\023\005In the will it is stated that the property bequeathed  under the will was obtained by his uncle and his mother  and there was a partition between himself, uncle and  others and the property allotted to him in the partition  was being bequeathed under the will.  In the will  Sankaran Nair has also directed an amount of Rs. 500/- to  be given to the plaintiff.  Therefore, there is nothing  unnatural in Sankaran Nair directing the property  obtained by him to be enjoyed by his nephew and niece  and their children as they were looking after him during  the major portion of his life time.  In such circumstances  I do not think that it can be said that mere disinheritance  of the legal heir by itself in the peculiar facts of this case  will amount to a suspicious circumstance\005\024                    7.      Appellants are, thus, before us.

8.      Mr. Nishe Rajen Shonker, learned counsel appearing on behalf of the  appellants, in support of the appeal, would submit that the High Court  committed a serious error in passing the impugned judgment insofar as it  failed to take into consideration the suspicious circumstances surrounding  the Will which have been noticed by the learned Trial Judge.                 It was contended that as the beneficiaries under the said Will took an  active role in the matter of execution thereof, the same by itself would be  sufficient to hold that the execution thereof had not been proved. Strong  reliance, in this behalf, has been placed on  H. Venkatachala Iyengar v. B.N.  Thimmajamma and Others \026 AIR 1959 SC 443].       9.      Mr. T.L.V. Iyer, learned Senior Counsel appearing on behalf of the  respondents, on the other hand, would submit that the findings of the learned  Trial Judge are perverse being beyond the pleadings in the suit.              The learned counsel would contend that the learned Trial Judge failed  to notice that although two Wills had been executed \026 one by Krishnan Nair  on 06.08.1971 and another  by Sankaran Nair on 07.08.1971, only the latter  one was  in question.  The learned Counsel urged that although the partition  had taken place on 27.07.1971, as the testators intended to keep  life interest  for themselves, the said Wills were executed soon after the partition.       10.     We may notice certain peculiar features of this case.  The value of the  joint family properties was assessed at Rs. 4,000/-.  The share of Sankaran  Nair being 1/4th therein, the value of the properties allotted in his favour was  only Rs. 1,000/-.  Out of the said properties, in terms of the said Will, a sum

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of Rs.500/- was to be paid to the plaintiff.   

    In the said Will it was stated :            \023My day-to-day affairs well as treatment are being  looked after and is rendered in a sincere manner and  according to my wishes by Sankunny Menon &  Karthiyani Amma who are (the children of my late sister  Nani Kutty Amma) and her children.            And I do believe that they will continue to behave  in the same was (sic) future also.  And I, hereby declare  that after my death, all the assets in my name as well as  the property in the B Schedule which has devolved upon  me by the above mentioned deed, shall vest in and be  taken possession of and enjoyed by my late sister  Nanikutty Amma\022s children, Sankunni Menon and  Karthyayani and her children and nobody else will have  any right whatsoever over my assets or property.  Within  an year of my death, a sum of rupees five hundred shall  be given to my son Madhavan and a receipt for the same  shall be obtained by Karthyayani Amma.  If the above  mentioned sum is not given to Madhavan within 1 year  and for that a receipt is not obtained, he is entitled to get  an interest of =% per hundred rupees, until he receives  the money.  If the amount is not accepted even after  knowing about the above amount he shall not have any  right to claim any interest as stated above.  Item No. 2 of  the schedule which I have received as may lawful share,  is hereby charged for the realization of the above said  amount.  If my uncle, Krishnan Nair, expires after my   death, then for his funeral and other related rituals an  amount which may extend upto Rs. 250/-, shall be borne  by Karthyayani Amma,  This Will shall come into force  only in the event of and on my death.  I hereby retain and  have all rights and authority to cancel this will or redraft   the same or dispose of my properties as per my wish.  I  also hereby state that, in the event of any such act, the  same shall be done only through a document made to that  end.  After deciding and agreeing as above the witnesses  signs below.  I have signed in this will only in Pullapra  Village and is being numbered after producing it in the  Trichur Registrar Office.\024              11.     We would proceed on the basis that at the time of execution of the  said Will, the testator was unwell.  The test, however, is as to whether he  possessed mental capacity to understand the contents of the Will and  whether the same was free and/or voluntary.         12.     Submission of the learned counsel that if both Krishnan Nair and  Sankaran Nair were to bequeath their entire right, title and interest in the  properties in favour of the respondents herein, by way of family arrangement  or otherwise, no deed of partition was required to be executed, cannot be  accepted as thereby  they would have lost their interest in the property  during their life time.  They evidently intended to have life interest in the  property, bequeathing the same in favour of the respondents.  It must also be  borne in mind that the parties are governed by Marumakkattayam School of  Hindu Law.  The sisters in the family have a role to play.  The fact that the  testator was totally dependent on his nephew and nieces is beyond any  dispute.  He lost his employment in the year 1959.  Apart from the properties  which were  subject-matter of the Will, he had no other independent source  of income.  Being totally dependent on the respondents having been  suffering from cancer, he was bound to place implicit faith and confidence  only upon those who had been looking after him.  The Will was admittedly  

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registered.  The testator lived for seven years after execution of the Will.  He  could change his mind; he did not.  The very fact that he did not take any  step for cancellation of the Will is itself a factor which the Court may take  into consideration for the purpose of upholding the same.  The question as to  whether the Register was brought to the house of the propounder or he had  gone to the Registrar\022s office is not a matter which requires serious  consideration.  But we may notice that the witness examined on behalf of the  respondents, Raveendran (DW-2), categorically stated that he had gone  to  the Registrar\022s office to get the same registered.   Execution of the will  might have taken place at the house of Krishnan Nair, but according to DW- 2 he came to his office even after registration.  Even the other Will was also  scribed by him and he was an attesting witness therein also.

13.     It is not correct to contend that DW-2 could not have the attesting  witness.  He in his deposition categorically stated that he had seen the Will  being read over to the propounder.  The witnesses and he had seen Krishnan  Nair putting his signature on the Will.  Krishnan Nair had also seen the  witnesses putting their signatures.   This satisfies the requirements of the  provisions of the Section 63 of the Indian Succession Act, 1925  and Section  68 of the Indian Evidence Act, 1872.  [See Apoline D\022 Souza v. John D\022  Souza \026 2007 (7) SCALE 766].  14.     The legal requirements in terms of the said provisions are now well- settled.  A Will like any other document is to be proved in terms of the  provisions of the Indian Succession Act and the Indian Evidence Act.  The  onus of proving the Will is on the propounder.  The testamentary capacity of  the propounder must also be established.  Execution of the Will by the  testator has to be proved.  At least one attesting witness is required to be  examined for the purpose of proving the execution of the Will.  It is required  to be shown that the Will has been signed by the testator with his free will  and that at the relevant time he was in sound disposing state of mind and  understood the nature and effect of the disposition.  It is also required to be  established that he has signed the Will in the presence of two witnesses who  attested his signature in his presence or in the presence of each other.  Only  when there exist suspicious circumstances, the onus would be on the  propounder to explain them to the satisfaction of the court before it can be  accepted as genuine.   

15.     We may, however, notice that according to the appellants themselves,  the signature of the testator on the Will was obtained under undue influence  or coercion.  The onus to prove the same was on them.  They have failed to  do so  If the propounder proves that the Will was signed by the testator and  he at the relevant time was in sound disposing state of mind and understood  the nature and effect of disposition, the onus stands discharged.  For the  aforementioned purpose the background fact of the attending circumstances  may also be taken into consideration.  [See  B. Venkatamuni v. C.J.  Ayodhya Ram Singh and Others (2006) 11 SCALE 148].

16.     In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao & Ors.  [2006  (14) SCALE 186], this Court held :

    \023Section 63 of the Indian Evidence Act lays down  the mode and manner in which the execution of an  unprivileged Will is to be proved.  Section 68 postulates  the mode and manner in which proof of execution of  document is required by law to be attested.  It in  unequivocal terms states that execution of Will must be  proved at least by one attesting witness, if an attesting  witness is alive subject to the process of the court and  capable of giving evidence.  A Will is to prove what is  loosely called as primary evidence, except where proof is  permitted by leading secondary evidence.  Unlike other  documents, proof of execution of any other document   under the Act would not be sufficient as in terms of  Section 68 of the Indian Evidence Act, execution must be  proved at least by one of the attesting witnesses.  While

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making attestation, there must be an animus attestandi,  on the part of the attesting witness, meaning thereby, he  must intend to attest and extrinsic evidence on this point  is receivable.              The burden of proof that the Will has been validly  executed and is a genuine document is on the  propounder.  The propounder is also required to prove  that the testator has signed the Will and that he had put  his signature out of his own free will having a sound  disposition of mind and understood the nature and effect  thereof.  If sufficient evidence in this behalf is brought on  record, the onus of the propounder may be held to have  been discharged.  But, the onus would be on the applicant  to remove the suspicion by leading sufficient and cogent  evidence if there exists any.  In the case of proof of Will,  a signature of a testator alone would not prove the  execution thereof, if his mind may appear to be very  feeble and debilitated.  However, if a defence of fraud,  coercion or undue influence is raised, the burden would  be on the caveator.  [See Madhukar D. Shende v. Tarabai  Shedage (2002) 2 SCC 85 and Sridevi & Ors. v. Jayaraja  Shetty & Ors. (2005) 8 SCC 784]. Subject to above,  proof of a Will does not ordinarily differ from that of  proving any other document.\024            17.     Therein, this court also took into consideration the decision of this  Court in H. Venkatachala Iyengar (supra), wherein the following  circumstances were held to be relevant for determination of the existence of  the suspicious circumstances :

\023(i) When a doubt is created in regard to the condition  of mind of the testator despite his signature on the  Will;

(ii)    When the disposition appears to be unnatural or  wholly unfair in the light of the relevant  circumstances;

(iii)   Where propounder himself takes prominent part in  the execution of Will which confers on him  substantial benefit.\024          18.     We do not find in the fact situation obtaining herein that any such  suspicious circumstance was existing.  We are not unmindful of the fact that  the court must satisfy its conscience before its genuineness is accepted.  But  what is necessary therefor, is a rational approach.   

19.     Deprivation of a due share by the natural heirs itself is not a factor  which would lead to the conclusion that there exist suspicious  circumstances.   For the said purpose, as noticed hereinbefore, the  background facts should also be taken into consideration.  The son was not  meeting his father.  He had not been attending to him.  He was not even  meeting the expenses for his treatment from  1959, when he lost his job till  his death in 1978.  The testator was living with his sister and her children.  If  in that situation, if he executed a Will in their favour, no exception thereto  can be taken.  Even then, something was left for the appellant.

20.     In Ramabai Padmakar Patil (Dead) though L.Rs. and Others v.  Rukminibai Vishnu Vekhande and Others [(2003) 8 SCC 537],  this Court  held : \0248. 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,

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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\005.\024 [See also S. Sundaresa Pai and Others v. Sumangala T. Pai (Mrs.) and  Another  - 2002 (1) SCC 630]. 21.     Strong reliance  has been placed by the learned counsel on Gurdial  Kaur and Others v. Kartar Kaur and Others  [(1998) 4 SCC 384], wherein it  was held : \0234. The law is well settled that the conscience of the court  must be satisfied that the Will in question was not only  executed and attested in the manner required under the  Indian Succession Act, 1925 but it should also be found  that the said Will was the product of the free volition of  the executant who had voluntarily executed the same  after knowing and understanding the contents of the Will.  Therefore, whenever there is any suspicious  circumstance, the obligation is cast on the propounder of  the Will to dispel the suspicious circumstance. As in the  facts and circumstances of the case, the court of appeal  below did not accept the valid execution of the Will by  indicating reasons and coming to a specific finding that  suspicion had not been dispelled to the satisfaction of the  Court and such finding of the court of appeal below has  also been upheld by the High Court by the impugned  judgment, we do not find any reason to interfere with  such decision. This appeal, therefore, fails and is  dismissed without any order as to costs. \023

22.     There is no dispute in regard to  the proposition that the conscience of  the court must be satisfied.  In the instant case, the High Court has  considered the relevant factors.  It has been found that the Will was the  product of the free will.  He had executed the Will after knowing and  understanding the contents thereof.

23.     Joseph Antony Lazarus (Dead) By L.Rs. v. A.J. Francis [(2006) 9  SCC 515], whereupon again reliance was placed, one of the circumstances  was that the names of the two sons of the testator had not been mentioned  therein.  The said decision cannot be said to have any application to the  instant case.

24.     For the reasons aforementioned, we do not find any legal infirmity in  the judgment of the High Court.  The appeal is dismissed.  However, in the  facts and circumstances of the case, there shall be no order as to costs.