TMI Blog2000 (12) TMI 927X X X X Extracts X X X X X X X X Extracts X X X X ..... the death of the first wife, Ippuru married the 7th respondent and in that marriage, Ippuru had two daughters, Mariyamma and Padmini alias Cherichi, the appellant. Vareed died on 8.1.1986 and the first respondent is his wife and respondents 2 to 5 are his children. 3. Ext. A1 Will is stated to have been executed by Ippuru on 8.5.1967. Execution of Ext. A1 Will by Ippuru is denied by the appellant. The contentions that Ippuru was suffering from Paralysis and that he was not of sound mind and was not in a position to take care of himself and that even if a Will was executed by Ippuru, it would have been executed under coercion and undue influence exerted by the legalce were taken up by the appellant. A suit, O.S. No. 220 of 1986 was filed by the present appellant in the Munsiff's Court, Chavakkad for partition. Then the respondents in this appeal filed the petition for grant of letters of administration. As per the provisions of Ext. A1 Will, items 1 to 3 are seen to have been given to the 6th respondent, the daughter of Ippuru in his first marriage. On reserving life estate in favour of the second wife, the 7th respondent, items 4 to 7 were given to Vareed. There is also a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had seen Ippuru and the attestors putting their signatures in the Will. The evidence of PW. 5, the Sub Registrar is regarding registration of the Will. PW. 5 says that he registered the Will after satisfying that the executant had signed the Will on understanding its contents and that the executant was having sound disposing capacity. Ext. XI is the thumb impression register containing the details regarding registration of Ext. A1 Will. The thumb impression of the executant of the Will was taken in a slip and it was pasted in the relevant page of the register. Ext. XI thumb impression register was proved by the Sub Registrar of Pazhanji Sub Registry Office at the lime when evidence was adduced in the case. Ext. XI thumb impression register was shown to PW. 5, the Sub Registrar who registered the original of Ext. A1 and it was on going through Ext. XI that PW. 5 gave evidence in court. 7. S. 213 of the Indian Succession Act, 1925 (hereinafter referred to as the Act ) says that no right as executor or legatee can be established in any court unless a court of competent jurisdiction has granted probate of the Will under which the right is claimed or has granted letters of administr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can also be for purposes other than the purpose for which it is not necessary to get a probate and for that reason also it cannot be said that after the amendment to S. 213 of the Act, there is no need for granting probate or letters of administration. 9. In Syndicate Bank v. Sqji Chacko 1998 (2) KLT 25. this Court had occasion to consider the effect of amendment to S. 213(1) of the Act. This Court held that from the date of insertion of the words Indian Christians in sub-s. (2) of S. 213 of the Act, need for obtaining of a probate or letters of administration of a Will executed by an Indian Christian need not be insisted upon for the purpose of establishing right as executor or legatee under the Will. 10. In Sheonath Singh v. Madanlal AIR 1959 Raj. 243, it was held that S. 213 of the Act does not vest any right or rather any substantive right in anybody and what it really does is to regulate the mode of proving a Will, that is, procedure. It was further observed in the above decision that what S. 213 really does is that it lays down a rule of procedure, that rule being that a person seeking to establish his right in any court of justice as executor or legatee under a Will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings, when the right as executor or legatee is sought to be established in that proceedings after the amendment, in the case of Christians it cannot be insisted that probate or letters of administration would have been obtained for establishing that right. Even though S. 213 was amended, the other provisions in the Act regarding granting of probate or letters of administration remain unchanged and hence it cannot be said that after the amendment brought about to S. 213 of the Act, there is no need for granting probate or letters of administration. 12. Coming to the evidence regarding execution of the Will, there is the evidence of PW. 4, the first respondent in this appeal and PW. 2, the taxi driver who was the identifying witness to the Will. PW.4 says that she had seen me executant of the Will putting his signature in the Will. She went on to say that she also saw the attestors putting their signatures in the Will in the presence of Ippuru. There is no reason to disbelieve the version of PW. 4 mat she saw the executant of the Will putting his signature in the document. At the time of execution of the Will, Ippuru was residing along with his son Vareed and PW. 4, his dau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red. It is maintained that the fact that no such statement was recorded by the registering officer would go to show that there was no proper registration of the Will. What is staled in R.50 regarding taking of statement by the registering officer from the party concerned justifying the urgency or reason for going to the residence of the executant of the document for receiving the document for registration is regarding the procedure to be followed by the registering officer when he goes to the residence for the above purpose. As per the proviso to S. 31 of me Registration Act, the registering officer, on special cause being shown, can attend the residence of any person desiring to present a document for registration. 15. It is for the registering officer to take a decision whether there are sufficient reasons for going to the residence of any person during to present a document for registration. Once the registering officer is satisfied that there is special cause for attending the residence of a person, he is justified in going to the residence for receiving the document for registration. Whether there are sufficient reasons for going to the residence of a person is a matter whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Non production of the Will is pointed out as a suspicious circumstance which according to the appellant would go to show that in all probability the Will would have been revoked by Ippuru and that may be the reason for not producing the Will. S. 70 of the Act deals with revocation of the Will by burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same. Destroying the Will by the testator is one of the modes of revocation of the Will if that was done with the intention of revoking the same. Merely because the Will is not forthcoming, presumption cannot be drawn that the testator would have destroyed the Will. Even though revocation of the Will had been made by destroying the same, there must be positive evidence to show that the Will was destroyed by the testator with the intention to revoke the same. There is no evidence at all in this case to show that the Will was destroyed by the testator with the intention of revoking the same. The possibility of the testator revoking the Will by destroying the same is very remote for the reason that there is a specific provision in Ext. A1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t he used to treat only persons who suffered paralysis. That shows that even according to DW.2, his father did not treat anybody for any other ailment. The evidence of DW.2 does not appear to be sufficient to indicate that his father was a physician who was treating Ippuru for paralysis. The evidence of PW. 5, the Sub Registrar becomes relevant in this context. PW. 5 cannot be said to be a person who is interested and his version is that at the time when he went to the house of Ippuru for registering the document, Ippuru was of sound disposing state of mind. What has to be understood from the evidence of PW. 5 is that at the time of registration of the document, Ippuru understood the nature and effect of disposition. In the light of the evidence of PW. 5, it could not be seen that the evidence of DW.2 that his father was treating Ippuru for paralysis cannot at all be accepted. 21. Ext. A1 Will was executed on 8.5.1967 and Ext. B1 sale deed was executed on 2.5.1967. Both the above documents were registered on 8.5.1967. In Ext. A1 Will, it is stated that item Nos. 4 to 7 properties are those over which the testator got right under Ext. B1 sale deed. Even though in Ext. B1 sale dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Property Act is that transfer of ownership of tangible immovable property of the value of Rs. 100/- and upwards can be effected only by a registered instrument, without a registered document ownership over tangible immovable property cannot be transferred. Where the sale deed requires registration, title does not pass until the sale deed is registered even though the transfer of possession as well as payment of consideration take place before registration of the document. S. 47 of the Registration Act deals with the time when a registered document shall operate and that provision is in respect of all documents which have to be registered as per the provisions of the Registration Act. But, S. 54 of the Transfer of Property Act is a special provision available in the said Act regarding sale of immovable property which says that registration of a sale deed is necessary for effecting transfer of ownership of immovable property, the value of which is Rs. 100/- or upwards. In the light of the above fact, the question whether transfer of ownership in immovable property will take effect from the date of execution of the sale deed which was subsequently registered, has to be decided wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d its registration. The case of the respondents is that Ippuru got 1/2 right in item Nos. 4 to 7 under Ext. B1. What is the nature of Ext. B1 document and whether Ippuru got any right under that document are not being considered in this proceedings. But even as per the case of the respondents, Ippuru got 1/2 right in item Nos. 4 to 7 under Ext. B1 sale deed. It could be seen that at the time of execution of Ext. A1 Will, Ippuru was not having any right over those items of properties. He could not have executed Ext. A1 Will by bequeathing item Nos. 4 to 7 in favour of Vareed because at the time of execution of that document, he had no right over those items of properties. 27. The execution of the Will has to be proved by the propounder of the Will. Execution of the Will has to be proved by examination of one of the attesting witnesses. At the time when the execution of the Will was sought to be proved, the attesting witnesses were not alive and hence, the propounder of the Will could prove the execution of the will by adducing other evidence. It is also necessary that the propounder of the Will has to explain the suspicious circumstance surrounding the execution of the Will. Exec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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