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ittoop Varghese Vs. Poulose and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberA.S. Nos. 419 and 426 of 1970
Judge
Reported inAIR1975Ker141
ActsSuccession Act, 1925 - Sections 63
Appellantittoop Varghese
RespondentPoulose and ors.
Advocates: P.P. Jain, Adv.
DispositionAppeals dismissed
Cases ReferredWright v. Sanderson
Excerpt:
.....proof of attestation of will by testator and witnesses - attestation can be proved by surrounding circumstances in case attesting witnesses denied factum of attestation - probate court empowered to consider surrounding circumstances to find out genuiness of will. - - 5. but, as we have pointed out earlier, when the court is satisfied as in this case that the witnesses deliberately and falsely denied that they attested the will, the court is entitled to look into the other circumstances and the regularity of the will on the face of it and come to the conclusion on the question of attestation. --the principle is well settled that when the evidence of the attesting witnesses is vague, doubtful or even conflicting upon some material point, the court may take into consideration the..........the writing as a will. (c) the will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person: and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.' ext. d-2 on the face of it conforms to the requirements of this section. but, the two witnesses to this will when examined as d. w. 4 and d. w. 5 stated that they did not see the testator signing.....
Judgment:

Viswanatha Iyer, J.

1. These two appeals arise out of two petitions filed under Section 278 of the Indian Succession Act praying that Letters of Administration may be issued under the above Act. One Pavu Ittoop died on 9-9-1964. He was survived by three sons,three daughters and his widow. The eldest son Varghese claimed in O. P. 7 of 1965 that Letters of Administration with copy of the will dated 14-3-1960 executed by the deceased Pavu Ittoop may be issued to him. The second son Poulose filed O. P. 10 of 1965 praying that Letters of Administration with the copy of the will dated 3-3-1964 may be issued to him. The proper execution of the will dated 14-3-1960 is admitted by all the parties. But, the petitioner in O. P. 10 of 1965 contended that the will dated 14-3-1960 stood cancelled by the will dated 3-3-1964 and therefore Letters of Administration cannot be issued under the earlier will. The testamentary validity of the latter will was questioned by the eldest son Varghese. The lower court tried these two petitions jointly, found that the second will has been properly executed and therefore dismissed O. P. 7 of 1965 and ordered the issue of Letters of Administration with the copy of the will dated 3-3-1964 annexed to the petition in O. P. 10 of 1965. These appeals are filed by the eldest son against the common order passed by the lower court.

2. It is admitted on all hands that the will dated 14-3-1960 was properly executed by the deceased and Letters of Administration can be issued if that is the last will validly executed by the deceased. But, the contention is that that is not the last will and that the will dated 3-3-1964 is the last will. If this is established, the issue of Letters of Administration under the earlier will does not arise, So, the question for consideration in these appeals is regarding the testamentary validity of the will dated 3-3-1964. Though the appellant had a contention that the latter will is a result of undue influence and fraud practised on the deceased, there is no material to support it and we agree with the lower court that there are no vitiating circumstances established against the testamentary capacity of the deceased. The main point urged by the appellant against the validity of the will put forward by the respondents is that the latter will has not been proved to be properly executed in conformity with Section 63 of the Indian Succession Act. That section lays down the formalities required to be observed in the execution and attestation of a will. That section is in the following terms:--

'63. Every testator, not being a sol' dier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will acceding to the following rules:--

(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.

(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person: and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.'

Ext. D-2 on the face of it conforms to the requirements of this section. But, the two witnesses to this will when examined as D. W. 4 and D. W. 5 stated that they did not see the testator signing and did not get a personal acknowledgment from the testator of his signature in the will and further that they did not sign in the presence of the testator. In the light of this testimony the appellant contends that the formalities of due execution required by the above section have not been complied with. The lower court found that D. Ws. 4 and 5 were swearing falsely that they have not seen the testator signing Ext. D-2 will and therefore did not accept their testimony and relying on the other evidence and circumstances of the case came to the conclusion that the formalities of the section had been complied with by the testator in executing Ext. D-2. How far this approach and the conclusion of the learned Judge are correct is the question for determination.

3. It is clear that the testator knew about the formalities for the due execution of a valid will, for, Ext. P-1 conforms to the requirements of this section and there is no contention that the formalities for it were not complied with. Therefore, the Court will be justified in inferring that he would have taken care to see that the formalities of due execution were complied with when he wrote the second will. In Ext. D2 there is a clear statement at its close that the testator is signing in the presence of the attestors. Immediately below this statement we find the signature of the testator and the signature of the two witnesses. Below their signature there is the correction note mentioning the various corrections in different pages and we find another signature of the testator beneath that note. So, on the face of it we find that the formalities of a due execution of a will are complied with. Further, one of the witnesses who attested the instrument is seen to have accompanied the testator to the Sub Registry Office and identified him before the Sub-Registrar and in token of that has signed as an identifying witness. In spite of these when that witness, namely D. W. 5, stated in his testimony that he did not see the testator signing and the testator did not see his attestation, it can only be an utter falsehood and the lower court was right in holding that he was swearing falsely. Same is the case with the other witness. Though he has not figured as an identifying witness before the Sub-Registrar, he has admitted in his testimony that he signed in the document writer's office where the document was prepared. We have mentioned earlier that immediately after the signature of these two witnesses the testator has affixed his signature certifying the number of corrections in the intrument. So, all these are seen to have taken place on the same day and immediately thereafter the document is taken to the Sub-Registrar's Office for registration. The statement of D. W, 4 that he signed without knowing that his signature was intended as evidence or having seen the testator signing cannot be believed. Therefore, the circumstances are so telling to the effect that this witness was also present at the time when the testator signed and the testator was also present at the time when this witness signed.

4. Over and above observing the above formalities we find that the testator wanted to assure himself that no quarrel should arise between his sons after his death regarding the will or his signature. So, he took care to get it registered. The Sub-Registrar who has registered the document has been examined in this case. He swears that the document was read out to the testator and the testator acknowledged his signature in the will and also signed in token of presenting the will before the Sub-Registrar. That is seen on the back of the first page of the will Ext. D-2. The Sub-Registrar has also signed under it and one of the attesting witnesses, D. W. 5, has also signed beneath it. A contention was raised that the Sub-Registrar's signature at the time of registration does not amount to attestation within the meaning of Section 63(c) of the Indian Succession Act. There are few decisions which discussed this question and most of them have been referred to in the judgment of this Court in Ammu v Thekkekara Kunhunni's son Krishnan, 1969 Ker LJ 562. The principle laid down in that case is that no hard and fast rule can be stated as to the purpose for which the Sub-Registrar's signature at the time of registration can be used. Normally his signature is to evidence the fact of due registration. Whether he had the animus attestendi at the time he signed is a matter for proof. In this case there is no clear evidence to show that the Sub-Registrar and the other witnesses signed at the back of the document with an intention of attesting the will. Therefore, it is not proper to conclude that the Sub-Registrar's signature amounts to attestation of a will.

5. But, as we have pointed out earlier, when the court is satisfied as in this case that the witnesses deliberately and falsely denied that they attested the will, the court is entitled to look into the other circumstances and the regularity of the will on the face of it and come to the conclusion on the question of attestation. The law on this point is stated thus by a Division Bench of the Calcutta High Court in Brahmadat Tewari v. Chaudan Bibi, AIR 1916 Cal 374. At page 375 the principle is stated thus:--

'The principle is well settled that when the evidence of the attesting witnesses is vague, doubtful or even conflicting upon some material point, the Court may take into consideration the circumstances of the case and judge from them collectively whether the requirements of the statute were complied with, in other words, the Court may, on consideration of the other evidence or of the whole circumstances of the case, come to the conclusion that their recollection is at fault, that their evidence is of a suspicious character or that they are wilfully misleading the Court, and accordingly disregard their testimony and pronounce in favour of the will.' Again, at page 376 it is observed thus:-- 'It is not necessary, however, that affirmative evidence should be forthcoming that the testator did, as a matter of fact, see the attesting witnesses put their signatures or that the attesting witnesses did actually see the testator sign the document. It is enough if the circumstances show that their relative position was such that they might have seen the execution and the attestation respectively, or as Walde, J., said In re Trimnell, 1865 II Jur (NS) 284 the true test is whether the testator might have seen, not whether he did see, the witnesses sign their names, Newton v. Clarke, (18391 2 Curt 320. In cases of this description, as was pointed out by this Court in Sibo Sundari Debi v. Hemangini Debi, 1900-4 Cal WN 204 on the authority of Wright v. Sanderson, (1884) 9 PD 149 Sanderson, In re (1884) 53 LJP 49, every presumption will be made in favour of due execution and attestation in the case of a will regular on the face of it and apparently duly executed.'

Again, in Manindra Nath Ganguli v. Durga Charan Ganguli, ILR (1949) 1 Cal 471 at page 475 it is observed thus:--

'The question, therefore, arises whether the probate Court is entitled tohold in favour of the will where the attesting witnesses or some of them prove hostile. In our opinion, Courts are not powerless in those circumstances and a probate Court may pronounce in favour of the validity of the will from the circumstances of the case taken as a whole. The leading decision on this point is the decision in the case of Wright v. Sanderson, 1884-9 PD 149, 163.'

In the light of these weighty pronouncements with which we respectfully agree we are entitled to look into the whole circumstances of this case and pronounce on the validity of the will. The various circumstances have already been stated. We are satisfied that the circumstances of this case are sufficient to come to the conclusion that there is proof of the due compliance of the formalities required by Section 63 of the Indian Succession Act in this case.

6. In the result, we agree with the lower court that there is sufficient proof regarding the valid execution of Ext. D-2. Consequently we agree with the trial Court that the petitioner in O. P. 10 of 1965 is entitled to take Letters of Administration with the copy of that will annexed. Therefore, these appeals are dismissed with costs.


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