ITTOOP VARGHESE Vs. POULOSE
HIGH COURT OF KERALA
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(1.) These two appeals arise out of two petitions filed under S.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 S.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 soldier 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 according 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. D2 on the face of it conforms to the requirements of this Section. But, the two witnesses to this will when examined as Dw. 4 and Dw. 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 Dws. 4 and 5 were swearing falsely that they have not seen the testator signing Ext. D2 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. D2. 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. D1 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 Dw. 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 instrument. 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 Dw. 4 that he signed without knowing that his signature was intended as evidence of having seen the testator signing cannot he 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.;
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