The appellant propounded Ext.A2 unregistered Will, before the II Additional District Court, Thiruvananthapuram in the O.P.(Letters of administration) No.86 of 2003 filed by him seeking letters of administration with Will annexed. The O.P. was hotly contested by the 1st respondent herein, who is the wife of the deceased Sebastian who had allegedly executed Ext.A2. Consequently, the O.P. was converted into O.S. No. 1 of 2004. Ultimately, the plaintiff was non- suited and the suit was dismissed with costs through the impugned judgment.
2. The case of the appellant/plaintiff is that deceased Sebastian and his wife, the 1st respondent, had jointly acquired the 5 cents of property in question, out of which late Sebastian had executed Ext.A2 unregistered Will thereby bequeathing 2.5 cents of property in favour of the appellant on 05.09.2002. Sebastian died on 12.12.2002. The appellant, being the sole legatee, is entitled to letters of administration with Will annexed.
3. The 1st respondent contested the O.P. by stating that signatures shown in Ext.A2 as those of deceased Sebastian were forged and that he had never executed Ext.A2. It is contended that deceased Sebastian during his life time executed Ext.B5 registered Will dated 05.12.2002 thereby bequeathing all his rights over the property in favour of the first respondent. It is also contended that the appellant, who is a document writer by profession, has deliberately forged Ext.A2 and had preferred a series of complaints against the first respondent before almost all the authorities under the sun. Various civil suits were also filed against her. The first respondent contended that all the said attempts from the part of the appellant herein were with a view to snatching away the property of deceased Sebastian. The property was subsequently sold by the 1st respondent to DW5, who is the 2nd respondent herein on 04.06.2003.
4. The court below after appreciating the evidence, dismissed the suit with costs and hence the appeal.
5. It is trite law that the burden to prove the genuineness of the Will is always on the propounder. It is the appellant who propounded Ext.A2 unregistered Will. His case is that he was unaware of the execution of the said Will and subsequently, after a few days of the death of Sebastian, PW2 an auto rickshaw driver, brought Ext.A2 Will and handed over it to him. It is the admitted case that Sebastian had only studied up to the 2nd standard.
6. On a perusal of Ext.A2, which is made through DTP, it cannot be believed that a person, who had studied up to the 2nd standard only, had prepared a document like Ext.A2 by himself. All the particulars regarding the discussion of the property and the contents required to be incorporated in a Will are seen clearly incorporated in Ext.A2. It is evident that the same is prepared by a document writer. At the same time, the name and address of the person who has prepared the document is not seen incorporated in Ext.A2. On a perusal of Ext.A2, it is evident that the signatures and thumb impressions of a person are obtained in blank papers and then the document has been prepared in such papers. Page No.4 and page No.5 of the said document clearly reveal the same, as unnecessarily space has been left blank in those pages.
7. Admittedly, PW1 did not see the execution of Ext.A2. PW2, who was examined to prove the signatures of the attestor as well as the attesting witnesses have clearly failed to prove their signatures. Even though he has stated that he knew the signatures of the executant as well as the attesting witnesses, he has clearly revealed when answering the questions put by the court during his examination that he had seen their signatures for the first time when they had affixed their signatures in Ext.A2. Therefore, his evidence cannot be treated as evidence of a person acquainted with the handwriting and signature of those persons, within the meaning of Section 47 of the Indian Evidence Act. He has no case that he was acquainted with the signatures or handwriting of the signatures of executant or the attestors.
8. Strangely enough, there is no evidence to show that the attesting witnesses were not available tobe examined before the court below at the time of evidence. Even though PW1 has stated before court below that both the attesting witnesses were not alive, he had not chosen to prove the said aspect by the production of their death certificates. No attempts were made to prove the attestation of the Will as contemplated under Sections 68 and 69 of the Indian Evidence Act. When no attesting witness was found, the propounder ought to have proved that the attestation of one of the attesting witnesses at least is in his handwriting. For the said purpose the propounder could have recourse to Section 47 of the Indian Evidence Act. Strangely, in this case, there was no such attempt from the part of the propounder.
9. It is the burden of the propounder to dispel all the suspicious circumstances. When the propounder is a person, who was a document writer, who allegedly obtained a bequeath through an unregistered Will allegedly executed by the testator, he ought to have dispelled all the suspicious circumstances. The non mentioning of the identity of the person who prepared Ext.A2 itself is one of the main suspicious circumstances which militates against the due execution of Ext.A2. The only evidence available in respect of the alleged execution of Ext.A2 is the versions of PW2. According to PW2, the testator himself had prepared Ext.A2 and then he went to the DTP centre at Sasthamangalam, got it prepared through DTP, came back, and affixed his signature and obtained the signatures of the attesting witnesses. At any stretch of imagination, it cannot be believed that a person like the deceased testator who had studied up to the 2nd standard had prepared Ext.A2. It seems that attestation of Ext.A2 is not properly proved within the meaning of Section 63 of the Indian Succession Act read with Sections 68, 69 and 47 of the Indian Evidence Act. (See the decision of this Court in Vadakkayil Gopalan and others v. Vadakkayil Paru [2013 (3) KLT 69 (D.B)] ).
10. The main circumstance resorted to by the learned counsel for the appellant in his attempt to support Ext.A2 is a fact that the 1st respondent had obtained Ext.B5 registered Will executed from her late husband. According to the learned counsel for the appellant, the attestor was seriously laid up and was undergoing treatment at the General Hospital, Trivandrum and while so he was taken away from there to the Sub Registry and got the document executed. It is further argued that the deceased, in such a circumstance, could not have understood the contents of the document and therefore, Ext.B5 is of no value at all. Those questions do not in fact arise at all at present. When the propounder of Ext.A2 has failed to prove its attestation and thereby failed to prove Ext.A2, even in the absence of a testament, all the rights of the testator in respect of the property could have devolved on the 1st respondent, who was the sole legal heir. According to the learned counsel for the appellant, any such contentions about her conduct is suspicious as she had obtained Ext.B5. The argument is that Ext.B5 was got executed only because of the fact that she was aware of the execution of Ext.A2. There is absolutely nothing to show that the 1st respondent was aware of the execution of the document like Ext.A2. When that aspect was put to her, she revealed that she had never come to know about the execution of any such document as Ext.A2. The validity of Ext.B5 was not at all questioned in the suit. The 1st respondent being the sole legal heir of the deceased, even in the absence of Ext.B5, the property would have devolved on her. All the circumstances clearly reveal that the present suit is nothing but a vain attempt resorted to by the appellant, just as an experiment. As he has failed to prove the genuineness of Ext.A2 and has failed to dispel the suspicious circumstances surrounding Ext.A2, the appellant is not entitled to get letters of administration with Will annexed.
11. Regarding the execution of Ext.B5, it seems that DW6, the concerned Sub Registrar, has tendered evidence that he knew the testator Sebastian for 10 to 20 years. He identified the signature of the testator in Ext.B5 as the signature affixed by the testator himself. Over and above it, the evidence of PWs 2, 3 and 4 also prove the due execution and attestation of Ext.B5. There is absolutely nothing to suspect the genuineness of Ext.B5. It seems that the 1st respondent has succeeded to prove the due execution, attestation and registration of Ext.B5.
12. Here is a case wherein the wife of the deceased was unnecessarily dragged into a series of litigations. The court below has rightly chosen to dismiss the suit with costs. This appeal is devoid of merits and is only to be dismissed with costs, and I do so.
In the result, this R.F.A. is dismissed with costs.
ul/-
[True copy] Sd/- B.KEMAL PASHA, JUDGE P.S. to Judge