P. Krishna Kumar, J.

1. The appellant is the plaintiff in a suit for partition filed before the Subordinate Judge's Court, Ernakulam. By the judgment impugned in this appeal, the trial court, finding that the property is not partible, relying on a Will in favour of the 1st respondent, dismissed the suit. Aggrieved by the said judgment, the appellant has preferred the present appeal.

2. The parties shall hereinafter be referred to as they were arrayed in the suit. The plaintiff is the son of defendant No.1. Defendant Nos. 2 and 3 are his sisters. According to the plaintiff, the property scheduled in the plaint originally belonged to his mother, Sreedevi Aravindakshan, who died on 08.02.2016, and upon her death, the  property  devolved  upon  the  plaintiff  and  the defendants. The plaintiff further contended that defendant No.1 attempted to have the property mutated in his name on the strength of a Will allegedly executed by late Sreedevi. The execution of a Will was improbable as Sreedevi had been suffering from carcinoma since 2015 and was incapable of executing any document. It was further contended that, if at all defendant No.1 had managed to obtain such a document, it could only have been by coercion or undue influence, and that she might have subscribed her signature thereto without understanding its contents, as she was not in a sound state of mind owing to the advanced stage of her illness.

3. The defendants resisted the suit by contending that Sreedevi had executed a registered Will on 07.10.2015 bequeathing the plaint schedule property to defendant No.1, her husband, and that the plaintiff was fully aware of the existence of the Will from its inception. It was further contended that defendant No.1 had purchased the property in the name of the testator by spending money earned by him. According to the defendants, the testator was mentally and physically capable of executing the document and possessed a sound disposing state of mind at the time of its execution. Though Sreedevi was suffering from cancer, her illness never affected her testamentary capacity, it was further contended.

4. During the trial, the plaintiff examined himself as PW1 and produced Exts. A1 to A4 in evidence. On the side of the defendants, DW1 to DW4 were examined and Exts. B1 to B8 and Exts. X1 and X2 were marked in evidence.

5. After an elaborate consideration of the oral and documentary evidence, the trial court concluded that Ext. B1 Will had been executed by late Sreedevi and that there were no suspicious circumstances surrounding its execution. Accordingly, the court dismissed the suit with costs to the defendants.

6. We have heard the learned counsel appearing for the appellant/plaintiff.

7. The question that arises for consideration in this appeal is whether Ext. B1 Will was executed by late Sreedevi and whether the suspicious circumstances if any, surrounding its execution, has been explained.

8. Taking us through the following decisions of the Apex Court in H. Venkatachala Iyengar v. B.N. Thimmajamma (1959 KHC 498), Rani Purnima Debi and Another v. Kumar Khagendra Narayan Deb and Another (1962 KHC 494), Jaswant Kaur v. Amrit Kaur (Smt.) and Others (1977 KHC 447), Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and Others (2007 KHC 3166), Bharpur Singh and Others v. Shamsher Singh (2009 KHC 4239), and the decision of this Court in Raveendran Nair v. Raman Nair and Others (2019 KHC 162), the learned counsel appearing for the appellant strenuously contended that the Will in question cannot be regarded as having been duly executed by Sreedevi and that the same cannot be acted upon as it is shrouded in suspicion. The learned counsel further raised the following contentions to substantiate the case that there are numerous suspicious circumstances surrounding the execution of the Will:

                  1. Just prior to the execution of the Will, the testator was suffering from colon carcinoma and had been admitted to Lakeshore Hospital from 18.09.2015 to 05.10.2015. The Will was executed on 07.10.2015, immediately after her discharge. At that time, the testator was not in a sound and disposing state of mind.

                  2. The plaint schedule property belonged to the testator. She had purchased the property in 1985 using the funds obtained from the sale of her family property. However, the propounder of the Will falsely claimed that the property had been purchased by him in the name of the testator.

                  3. A mere perusal of the signature appearing in the Will raises a reasonable doubt as to whether the testator was in a position to execute the document.

                  4. DW2 (Tarakesh), an attesting witness to Ext. B1 Will, was highly interested in its execution. DW2 is the son-in-law of the propounder and stood in a fiduciary relationship with defendant No.1 and the testator. Both of them were residing in his house, and defendant No.1 continues to reside there even now.

                  5. The witnesses examined to prove the execution and attestation of the Will are not independent witnesses. The only independent attesting witness to the Will, though alive, was not examined.

                  6. The name of the plaintiff, the only son, is incorrectly stated in the Will (instead of “Areesh”, it is shown as “Hareesh”.)

                  7. The plaintiff, who is the only son of the propounder and the testator, is even now residing in the house situated in the property. No sufficient reason is stated in the Will as to why the said property was not bequeathed to the plaintiff, or at least why a share therein was not provided to him.

                  8. The Will was to be registered at the Edappally Sub Registry Office, but it was ultimately registered at the Sub Registry Office, Maradu.

9. Let us first consider whether the execution and attestation of the Will have been duly proved. For this purpose, defendant No.1 examined DW2, one of the attesting witnesses to the Will, and DW4, the document writer. DW2 is the son-in-law of the 1st defendant and the testator. DW2 deposed that the Will was executed by Sreedevi on 07.10.2015 and that it was witnessed by him as well as one N.F. George Paul. Thereafter, he and the said N.F. George Paul attested the Will in the presence of Sreedevi. He also deposed that DW4 had likewise subscribed his signature to Ext. B1 in their presence. According to him, Ext. B1 was presented for registration by Sreedevi in their presence and was registered on the same day, and that DW2 and DW4 also signed before the registering authority. DW2 further deposed that Sreedevi was in a sound state of mind at the time she executed the document. DW4 reiterated the above version.

10. DW3, a doctor working as an oncologist at Lakeshore Hospital, deposed that she had treated Sreedevi for colon cancer. She further stated that, at the time of discharge, Sreedevi possessed sound disposing capacity and was mentally stable. DW3 further clarified that the medical records showed that the patient was conscious and oriented and had never exhibited any mental instability till then. The discharge summary was marked through this witness as Ext. X1. Ext. X1 discharge summary, inter alia, shows that the patient was symptomatically better at the time of discharge, though she was suffering from a progressive disease with a poor prognosis.

11. The evidence of DW2 and DW4 clearly establishes that the Will was executed and attested in the manner prescribed by law. Nothing in their cross-examination indicates otherwise. Since DW4 deposed that he had known DW2 from his childhood, an attempt was made to suggest that he is an interested witness. In fact, DW4 had deposed in his chief-examination itself that Sreedevi was his neighbour. DW2 is indeed the son-in-law of the 1st defendant and the testator. However, he derives no interest or benefit under the Will, as the bequest is entirely in favour of the 1st defendant. In the above circumstances, the contention that DW2 and 4 are interested witnesses and hence the other attesting witness ought to have been examined to prove the Will, has no merit.

12. As regards the testamentary capacity of the deceased, the evidence of DW3 is clinching and convincing. Nothing was brought out in her cross-examination to indicate the contrary. As she stated in cross-examination that all the entries in Ext. X1 had not been made by her, it was contended that the evidence of DW3 is insufficient to arrive at a conclusion regarding the mental condition of the testator. The above submission is misconceived, as DW3 has clearly deposed that the patient was under her treatment. Merely because certain portions of the discharge summary were prepared by other officials, the evidence of an independent witness, namely, an oncologist working at a leading hospital, cannot be brushed aside.

13. Though it was contended that the signature appearing in the Will differs from the admitted signature of the testator available on record, we find no reason to accept the said contention. The plaintiff had no such case at the time of institution of the suit. In the plaint, his case was only that the testator was not in a sound disposing state of mind at the time of execution of the Will and that, if at all she had subscribed her signature thereto, it was under coercion and undue influence exerted by the first defendant. Further, the signature appearing in the Will bears all the distinctive characteristics of the admitted signature. True, there are certain natural variations in its formation, but they are consistent with the passage of time, advancement in age, and the physical condition of the testator. Thus, it can safely be concluded that the execution and attestation of Ext. B1 Will, as well as the sound disposing state of mind of the testator at the time of its execution, stand proved.

13. As noted above, under the Will, the bequest was made in favour of the husband of the deceased. There is nothing on record to show that he had any role in the execution of the Will. The evidence of the 1st defendant as DW1 is, in fact, sufficient to dispel all the misgivings projected by the plaintiff. DW1 deposed in his chief affidavit that the deceased had earlier settled most of her properties in favour of her three children, including the plaintiff. According to him, the plaintiff used to create issues with the deceased by demanding the plaint schedule property. He further deposed that the plaintiff had never taken care of the deceased and that it was defendant No.1 who had been managing all their domestic affairs, even at the age of 76, from his earnings derived by running a vegetable shop in the market. According to him, it was in those circumstances that Sreedevi executed the Will. He also deposed that the plaintiff had quarrelled with defendant Nos.1 and 2 even on the date of Sreedevi's death upon coming to know of the execution of the Will. The plaintiff also objected to the mutation of the property in the name of defendant No.1. In those circumstances, defendant No.1 was compelled to file a writ petition before this Court. Pursuant to Ext. B3 judgment dated 26.05.2017 in the said writ petition, the property was mutated in the name of defendant No.1 on 23.08.2017 as evidenced by Ext. B4, after affording an opportunity of hearing to the plaintiff as well. It is relevant to note that the suit was filed by the plaintiff on the very same day, namely, 23.08.2017.  However,  the  plaintiff  feigned  ignorance regarding the particulars of the Will while making the pleadings in the suit.

14. In Venkatachala Iyengar v. B.N. Thimmajamma and Others (AIR 1959 SC 443), the Honourable Supreme Court identified the following as relevant indicators of suspicious circumstances surrounding a Will: (i) where a doubt is created regarding the mental condition of the testator despite the admitted signature of the testator on the Will; (ii) where the disposition appears unnatural or wholly unfair in the light of the surrounding circumstances; and (iii) where the propounder himself takes a prominent role in the execution of the Will which confers on him a substantial benefit. After a thorough examination of the evidence on record and all the attending circumstances, we do not find that any of the above features are present in this case. The other decisions cited by the learned counsel appearing for the plaintiff are not relevant in the factual context of the present case, as the execution and attestation of the Will have been duly proved and the facts established before the trial court do not disclose any suspicious circumstance surrounding its execution.

15. The trial court, after an elaborate consideration of the oral and documentary evidence, rightly found in favour of defendant No.1. We find no reason to interfere with the said findings.

In the result, the appeal is dismissed.