V. Velayudhan Nair vs Kallyanikutty Amma

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(Ker) 43

Judges : V.RAMKUMAR
V.Velayudhan Nair - Appellant
Versus
Kallyanikutty Amma - Respondent
Case No : SA.No. 333 of 2000(F)
Decided On : 01/24/2006
Advocates Appeared :
For the Appellant: Preethi Karunakaran, R. Rajesh Kormath, Anish S. Ambady, Advocates. For the Respondents: V.V. Asokan, Sunil Shanker, Advocates.

Headnote:
Succession Act 1925 - Section 63 and 63 (c) - Registration Act, 1908 - Sections 17, 18 , 52, 58 and 60 - Evidence Act, 1872 - Section 68 - All influences are not unlawful - Second Appeal - Sole defendant in O.S. on the file of Munsiff's Court i was the original appellant in this Second appeal - Pending this second appeal he died and his legal representatives have been impleaded as additional appellants - Said suit instituted by respondent herein was one for a declaration of the plaintiff's title and possession over the plaint schedule properties on strength of Ext.A1 will executed by father of both the plaintiff and the defendant and for consequential injunction or in the alternative, for recovery of possession of the plaint schedule properties on the strength of plaintiff's title - Held, Where the execution of the will is admitted, the burden is on the party who assails the document on the ground of fraud or misrepresentation to substantiate the same. Where the will is attacked on allegations of undue influence, fraud, coercion or importunity, the onus is on such person who attacks the instrument to prove the grounds alleged in support of such attack. The burden of proving undue influence, fraud, collusion, forgery etc. is on the party alleging the same - There is no law which says that a testamentary instrument is compulsory registrable. On the contrary, S.18 of the Registration Act, 1908 says that registration of Wills and other documents not compulsorily registrible under S.17 thereof, is only optional. A close scrutiny of the document will show that the document does contain the statutory endorsement of the executant having presented the document for registration and having admitted execution and the identifying witnesses having identified the executant. However, the means employed by the Sub Registry office to incorporate the statutory endorsements has been in the form of ready-made seals, but without proper inking. The solemn duty of the Sub Registrar arriving at the requisite satisfaction which he is statutorily enjoined to arrive and if need be, after examining the executant on oath, cannot be delegated to a peon who may mechanically affix a seal prepared in that behalf without knowing the significance or relevance of the same. This is a matter which should engage the attention of the Government.Law does not insist upon examination of both the attestors in proof of execution of the will although attestation by at least two witnesses is compulsory. This is clear from Section 68 of Evidence Act, 1872 read with S. 63(c) of the Succession Act, 1925. Denial of property to natural heirs or uneven distribution of assets among the heirs under a will etc. do not by themselves constitute suspicious circumstances. The very purpose behind the execution of a will is to disturb the natural order of succession and therefore there cannot be anything unusual about it - Court do not find any merit in this Second Appeal which is accordingly dismissed -

Judgment :-

The sole defendant in O.S. 109/1989 on the file of the Munsiff’s Court, Manjeri was the original appellant in this Second appeal. Pending this second appeal he died and his legal representatives have been impleaded as additional appellants. The said suit instituted by the respondent herein was one for a declaration of the plaintiff’s title and possession over the plaint schedule properties on the strength of Ext.A1 will executed by Velu Nair, the father of both the plaintiff and the defendant and for consequential injunction or in the alternative, for recovery of possession of the plaint schedule properties on the strength of plaintiff’s title.

2. The trial court as per judgment and decree dated 31-1-1990 dismissed the suit holding that the plaintiff had failed to prove that Ext.A1 will dated 13-10-1977 was duly executed by the plaintiff’s father deceased Velu Nair and that the plaintiff has not succeeded in dispelling the suspicious circumstances surrounding the execution and attestation of the will. On appeal by the defendant, the lower appellate court as per judgment and decree dated 29-10-1999 reversed the decree passed by the trial court and decreed the suit after holding that Ext.A1 will was duly executed by Velu Nair, the testator and that the defendant had failed to prove that Velu Nair did not have a sound disposing state of mind. To arrive at this conclusion the lower appellate court had proceeded on the basis that since the execution of the will was virtually admitted by the defendant whose attack was that the will was got executed by practicing fraud and misrepresentation, the burden was on the defendant to prove his case. It is aggrieved by the decree passed by the lower appellate court that the defendant preferred this second Appeal.

3. Notice had been issued on the following substantial questions of law formulated in the memorandum of appeal:-

a) Is not the decision of the court below vitiated due to wrong casting of burden of proof on the defendant?

b) Was the court below right in holding that the burden of proof is on the defendant to prove fraud and misrepresentation, when vitiating circumstances are pointed out to show that the execution of the will is shrouded in suspicion? Is not the propounder of the will bound to dispel the suspicious circumstances surrounding the execution of the will?

c) Since one of the attesting witness is the brother in law of the propounder and his evidence being interested, should not the propounder examine the other attesting witness?

d) Are not the findings of the court below erroneous in law, in view of the misreading of the written statement of the defendant?

e) Can Exhibit A1 will be accepted as genuine in the absence of the necessary endorsements on it to be made by the Sub Registrar before who it was registered?

f) Was the court below justified in upsetting the well considered judgment of the trial court, without adverting to the reasoning therefore and without finding that it is erroneous?

g) Is not the judgment of the court below vitiated due to non consideration of the admissions made by the plaintiff?

4. I heard the learned counsel appearing for the appellant/defendant as well as for the respondent/plaintiff.

APPELLANT’S ARGUMENTS

5. Assailing the decree passed by the lower appellate court, the learned counsel appearing for the additional appellants made the following submissions before me:-

O.S.34/79 was an earlier suit filed by the very same plaintiff for a perpetual injunction claiming title under the very same will namely, Ext.A1 dated 13-10-1977 said to have been executed by the father, deceased Velu Nair. The said suit was resisted by the appellant contending inter-alia that the will was not genuine and that he was a co-owner in joint possession of the property. Accepting the said defence, the trial court as well as the lower appellate court had dismissed the suit after holding that the will was not genuine and that the plaintiff had not proved exclusive possession

Click Here to Read the rest of this document