Madras High Court
Manikkam Ammal And Ors. vs Appavu Mudaliar And Ors. on 23 July, 2001
Equivalent citations: (2001)3MLJ420
Author: P. Sathasivam
Bench: P. Sathasivam
JUDGMENT P. Sathasivam, J.
1. Plaintiffs in O.S.No. 37 of 1981 on the file of Subordinate Judge, Tindivanam are the appellant herein. They filed the said suit for passing a preliminary decree for partition and separate possession of their 3/5th share in Schedule A, B, C and D properties. The learned Subordinate Judge on appreciation of oral and documentary evidence, by the impugned judgment and decree dated 1.9.1988, dismissed the suit; hence the present appeal by the plaintiffs.
2. The case of the plaintiffs as set out in the plaint are briefly stated hereunder: The plaintiffs are the daughters and defendants 1 and 2 are the sons of one deceased Ponnia Mudaliar and his wife Unnamalai Ammal. Third defendant is the son of the first defendant. Unnamalai Ammal, mother of the plaintiffs and defendants 1 and 2 died intestate on 20.5.1978 leaving behind her surviving husband Ponnia Mudaliar, plaintiffs and defendants 1 and 2 as her legal heirs. Ponnia Mudaliar died intestate on 23.4.1979 leaving behind the plaintiffs and defendants 1 and 2 as his legal heirs.
3. Even during the life time of Ponnia Mudaliar, the joint family immovable properties and other properties acquired in the name of Ponnia Mudaliar and his wife Unnamalai Ammal were divided between him and his wife and defendants 1 and 2 under a registered partition deed dated 23.4.1965. Under the said partition deed, the properties described therein is "A" Schedule were allotted to the share of Ponnia Mudaliar and properties described therein as "B" Schedule were allotted to the share of Unnamalai Ammal and "C" and "D" schedules therein were allotted to the shares of defendants 1 and 2. Schedule "E" properties therein were kept in common between the defendants 1 and 2 who were directed to maintain the first wife of Appavu Mudaliar, first defendant out of the income from some properties till her life time and take equally the rest of the income and the properties described as items 1 to 36 absolutely, at the lifetime of the maintenance holder. The other properties described in "E" schedule to the partition were kept in common between defendants 1 and 2.
4. The properties described in "A" schedule are the properties belonging to Ponnia Mudaliar at the time of his death 23.4.1979. It includes the properties obtained by him in the partition and subsequent acquisitions made by him by purchases, Court decrees etc. The properties described in Schedule "B" of the plaint are the undisposed of immovable properties allotted to Unnamalai Animal under the partition deed dated 23.4.1965. Both of them after partition, lived with their sons in the house described in "E" schedule. They had number of valuable movables acquired by them and most of them are described in detail in Schedule "D". The deceased Ponnia Mudaliar started a rice mill business in or about 1977 with licence in his name and with his own separate funds.
5. On the death of Unnamalai Animal in 1978 and later Ponnia Mudaliar in 1979, all the properties which they own and divided possession of and described in plaint Schedules A, B, C and D devolved on plaintiffs and defendants 1 and 2 equally as per Hindu Succession Act. Plaintiffs and defendants 1 and 2 are each entitled to an undivided 1/5th share in these properties. Plaintiffs together are entitled to 3/5th share in the properties of their parents.
6. After the death of their parents, the defendants 1 and 2 sold away the land described in "C" schedule to the fourth defendant. The said sale is not binding on the plaintiffs. The 5th defendant is the tenant of the house item 31 in "A" schedule. Since 4th defendant is an alienee, he is also made a party to the suit. Since 6th and 7th defendants are alienees, they are also made parties to the suit. In view of the stand of the first defendant that deceased Unnamalai Animal had executed a Will in favour of 8th defendant Rajakumari in respect of "B" schedule items 7 to 10, the 8th defendant is now made a party to the suit. Inspite of several attempts for effecting a fair and equitable partition of the suit properties, the defendants failed and neglected to accept to their request; hence the present suit.
7. First defendant filed a written statement. It runs as follows: It is true that Ponnia Mudaliar effected a partition between himself and his sons by means of a Registered deed of partition dated 23.4.1965. In the said partition between father and sons, items 1 to 36 of the B schedule therein were directed to be enjoyed by defendants 1 and 2 in common and reserved for the maintenance of the first defendant's wife who is still alive. Subsequent to the partition, item 31 of Schedule A in the plaint was got by Ponnia Mudaliar by means of a decree of specific performance in O.S.No. 490 of 1964 on 31.10.1972. The first defendant had spent Rs. 15,000 for re-construction of the dilapidated tiled house therein. The items mentioned in "C" schedule were obtained under a compromise suit between Ponnia Mudaliar and one Karunanidhi. The father had incurred a debt of Rs. 6,000 for purchase of machinery for the rice mill. The debt remained undischarged. The plaintiffs viz., the daughters were married at the expense of the family by the father to persons owning properties consistent with the status of the family and they were presented with jewels and other customary presents obtaining in Hindu families, on good and bad occasions. There was, therefore, no necessity to provide them separately by subsequent bequests in their favour. As a matter of fact, the father had purchased about 4 acres in the village in the benami of the 3rd plaintiff with his own moneys at a time when she was a minor. After the death of their father, the 2nd plaintiff realised Rs. 1,000 on the basis of usufructuary mortgage. In such circumstances, the father executed a Will on 5.2.1979 while in a sound disposing state of mind and out of his own volition bequeathing all the properties which he got under the partition and subsequently inclusive of the rice mill in favour of the defendants 1 and 2. The defendants 1 and 2 have taken possession of the properties bequeathed in their favour under the Will, which took effect on the estator's death. The first defendant had also sold an extent of 3 acres, 46 cents which he got under the Will and set out as Schedule "C" in the plaint by means of two sales and the sales have been effected for proper consideration and in his own right; accordingly the plaintiffs are not entitled to question the same. Item 31 of A schedule, the house has been let out by the first defendant as a legatee of the property in favour of the 5th defendant. The plaintiffs are not entitled to question the first defendant's right in that behalf also.
8. The plaintiffs are also not entitled to claim the properties of their mother set out in schedule "B". The mother who had great affection to the first defendant's only son, the third defendant, there being no issue for the 2nd defendant, executed voluntarily a gift settlement dated 17.8.1977 in respect of plaint items 1 to 6 of B schedule of her properties. The said deed had been validly attested and accepted by the third defendant and he is in enjoyment of the same. Items 7 to 10 of "B" schedule were bequeathed by Unnamalai Ammal in favour of Rajakumari, daughter of the first defendant by virtue of the Will dated 20.2.1978. This Will was also duly executed and attested.
9. The plaintiffs are not entitled to any share in respect of movables set out in "D" schedule in the plaint. A Commissioner was appointed for taking an inventory and he has filed a report including the movables in the property in schedule "E" in the plaint and contrary to the commission of warrant, he has sought to take an inventory of livestock found elsewhere in zealous exercise of his authority and has exhibited a partisan attitude more fully set out in the objections to the Commissioner's report. The movables set out in the D schedule do not tally with the inventory of the Commissioner clearly showing that the plaintiffs have drawn a list freely from their imagination. The debt incurred by his father for purchase of machinery for rice mill from United Commercial Bank, Villianur, is still outstanding and plaintiffs are not in any event, entitled to claim any share without meeting the said liability. The plaintiffs are also not entitled to accounting in respect of the income from the properties either of the rice mill or of the other lands.
10. Defendants 2 and 3 have filed a separate written statement wherein it is stated that apart from the properties that were allotted to the deceased Ponnia Mudaliar, he had also acquired other properties subsequently. They are his self acquisitions. The said Ponnia Mudaliar died only testate. He had executed a Will voluntarily on 5.2.1979. The said Will was duly executed and attested. Hence, the plaintiffs cannot claim any share in "A" schedule properties. Item 1 to 6 in "B" schedule did not belong to Unnamalai Ammal on the date of her death, she having been parted with her properties in items 1 to 6 to the 3rd defendant by virtue of the settlement deed. Therefore these items 1 to 6 of "B" schedule are not partible. In respect of items 7 to 10 in "B" schedule, Unnamalai Ammal executed a Will on 20.2.1978 in favour of her grand daughter Rajakumari. The said Will was also duly executed and attested. Hence those items are not partible. With regard to movables set out in "D" schedule to the plaint, these defendants adopt the details set out by first defendant in his written statement. Both Ponnia Mudaliar and Unnamalai died leaving behind them Wills dated 5.2.1979 and 20.2.1978 respectively and therefore plaintiffs suit for partition is untenable. As per the "B" schedule to the Will executed by the father, the lands and rice mill belong to 2nd defendant.
11. Eighth defendant filed a Memo adopting the written statement filed by defendants 2 and 3.
12. With the above pleadings, the second plaintiff got herself examined as P.W.1. One K.Janakiraman, Commissioner appointed at the instance of the Court, was examined as P.W.2 and one C.V. Jayadevi, a finger print expert, was examined as P.W.3. Exs.A-1 to A-12 were also produced and marked in support of their claim. On the other hand, the second and third defendants were examined as D.Ws.1 and 2 respectively and four more persons as D.Ws.3 to 6, out of them, D. W.5 is a finger print expert. The learned Subordinate Judge, Tindivanam, after framing necessary issues and after considering the oral and documentary evidence, dismissed the suit; hence the present appeal by the plaintiffs.
13. Heard Mr. S.S. Sundar, learned Counsel for the appellants and Mr. A.K. Kumarasamy, learned Counsel for the respondents 1 to 3.
14. The point for consideration in this appeal is, whether the plaintiffs have established their claim for partition and separate possession of 3/5th share in plaint "A", 'B", "C" and "D" schedule properties; and whether the learned Subordinate Judge is right in dismissing their suit?
15. The plaintiffs are the daughters and the defendants 1 and 2 are the sons of late Ponnia Mudaliar and his wife Unnamalai Ammal. Third defendant is the son of the first defendant. Their mother Unnamalai Ammal, namely, wife of Ponnia Mudaliar died on 20.5.1978, whereas their father Ponnia Mudaliar died on 23.4.1979. It is the definite case of the plaintiffs that the plaint schedule particularly A, B, C and D Schedule are properties of their parents, namely, Ponnia Mudaliar and Unnamalai Ammal. It is also their case that as per the partition between Ponnia Mudaliar and defendants 1 and 2 under Ex.A-1, dated 23.4.1965, the properties described in "A" schedule were allotted to Ponnia Mudaliar and the properties described in "B" schedule were allotted to Unnamalai Ammal. Both of them (Ponnia Mudaliar and Unnamalai Ammal) died intestate; hence the plaintiffs and defendants 1 and 2 being their legal heirs under the Indian Succession Act, 1925, are each entitled to 1/5th share; accordingly the plaintiffs altogether claim 3/5th share in the A, B, C and D schedule properties. On the other hand, it is the case of the defendants 1 to 4 that under Ex.B-2 Will, dated 5.2.1979, Ponnia Mudaliar bequeathed "A" schedule properties in favour of the first defendant and that Unnamalai Ammal settled items 1 to 6 in "B" schedule properties under Ex.B-4, dated 17.8.1977 in favour of the third defendant, who is the son of the first defendant. The very same Unnamalai Ammal by Ex.B-5 Will dated 29.2.1978, bequeathed items 7 to 10 in "B" schedule properties in favour of 8th defendant, who is the daughter of the first defendant. In other words, according to the defendants, in view of Ex.B-4 settlement deed, Ex.B-5 Will and Ex.B-6 another Will, their parents Ponnia Mudaliar and Unnamalai Ammal made arrangements by setting A and B schedule properties in favour of first, third and eighth defendants. Since it is the defendants who dispute the share of the plaintiffs in the suit properties, it is for them to establish that Exs.B-4, B-5 and B-6 documents had been executed validly.
16. Ms. S.S. Sundar, learned Counsel appearing for the appellants, would contend that the defendants failed to prove Exs.B-4 to B-6. He also contended that in view of suspicious circumstances, and as the scribe and attestors of these documents are the beneficiaries and close relatives, the defendants failed to discharge their burden. He further contended that in the absence of examination of at least one of the attestors in Ex.B-6 the execution of the same has not been proved by them. On the other hand, Mr. A.K. Kumarasamy, learned Counsel appearing for the respondents 1 to 3, would contend that inasmuch as the plaintiffs failed to establish their case before the trial Court and the defendants proved their case by placing acceptable evidence both oral and documentary, the trial Court rightly dismissed the suit and prayed for dismissal of the present appeal filed by the plaintiffs.
17. Since most of the disputes are only with regard to A and B schedule properties, now I shall consider whether the defendants have proved the valid execution of Exs.B-4 to B-6. As stated earlier, Ex.B-4 is a settlement deed executed by Unnamalai Ammal, while Exs.B-5 and B-6 are Wills executed by Unnamalai Ammal and Ponnia Mudaliar respectively. Before considering the same, it is useful to refer the relevant section of the Indian Evidence Act. Section 68 of the Indian Evidence Act, which speaks about attestation, runs as follows:
68. Proof of execution of document required by law to the attested: If a document is required by law to be attested, it shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any documents, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
The other provision to be noted is Section 63-C of the Indian Succession Act, 1925 which is as follows:
Section 63. Execution of unprivileged Wills: 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) xxx
(b) xxx
(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.
18. Section 68 of the Indian Evidence Act, shows that "attestation" and "execution" are two different acts one following the other. There can be no valid execution of a document which under the law is required to be attested without the proof of its due attestation and if due attestation is also not proved, the fact of execution is of no avail. Section 63 of the Succession Act also lays down certain rules with regard to the execution of unprivileged Wills. The word 'attested' has been defined in Section 3 of the Transfer of Property Act. Considering all the three provisions, namely, Section 68 of the Evidence Act, Section 63(c) of the Succession Act and Section 3 of the Transfer of Property Act, Their Lordships of the Supreme Court in the case of Kashibai v. Parwatibai , has observed thus:
Para 11... Having regard to the aforementioned definition on attesting witness is a person who in the presence of an executant of a document puts his signature or mark after he has either seen the executant himself or someone on direction of the executant has put his signature or affixed his mark, on the document so required to be attested or after he has received from the executant a personal acknowledgment of his signature or mark or the signature or mark of such other person....
19. Learned Counsel for the appellants has relied on various decisions to explain what are all the suspicious circumstances and how the same have to be established. In the case of H. Venkatachala v. B.N. Thimmajamma , the Supreme Court has held that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. Their Lordships also held that as in the case of proof of other documents so in the case of proof of Wills it would be idle to expect proof with mathematical certainty and that the test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. After analysing the various factors, Their Lordships have held in para 21 as follows:
21...The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
20. In the case of Indu Bala v. Manindra Chandra , the following conclusion of their Lordships is relevant:
7. This Court has held that the mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of the attention prescribed in the case of a Will by Section 63 of the Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before Court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations.
8. Needless to say that any and every circumstance is not a 'suspicious' circumstance. A circumstance would be 'suspicious' when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.
Same principle has been reiterated in Shashikumar v. Subodh Kumar .
21. In G. Thataiah v. Venkata Subbaiah, , the Supreme Court has held thus:
6. It is well established that in a case in which a Will is prepared under circumstances which raise the suspicion of the Court that it does not express the mind of the testator it is for those who propound the Will to remove that suspicion. What are suspicious circumstances must be judged in the facts and circumstances of each particular case. If, however, the propounder takes a prominent part in the execution of the Will which confers substantial benefits on him that itself is a suspicious circumstance attending the execution of the Will and in appreciating the evidence in such a case, the Court should proceed in a vigilant and cautious manner....
22. In Guro v. Atma Singh , it has been held as follows:
3...The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and signature of the testator as required by law is sufficient to discharge the onus. Where, however there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the Will could be accepted as genuine. Such suspicious circumstances may be a shaky signature, a feeble mind and unfair and unjust disposal of property or the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit. The presence of suspicious circumstances makes the initial onus heavier and the propounder must remove all legitimate suspicion before the document can be accepted as the last Will of the testator.
23. A Division Bench of this Court in Thankam alias Karthiyani v. Madhavan , has held that the Court is bound to take into consideration the evidence of the witnesses and if the evidence adduced is not satisfactory and sufficient to prove valid execution and attestation of the Will and if the Will was prepared under vitiating circumstances, the propounder must discharge his burden of proving the fact of valid execution and attestation.
24. Regarding attestation, Ratnam, J., (as he then was) in the case of M.S. Thanigachala Pillai v. Rukmani Ammal (1988) 1 L.W. 425 has held as follows:
5...Thus, while under Section 63(c) of the Indian Succession Act, the Will should be attested by two or more witnesses, each of whom had either seen the testator sign or affix his mark, or had received from the testator a personal acknowledgment of his signature or mark on the Will, it is not necessary that the testator and the two witnesses should all be present at one and the same time. However, it is clear that there must be two witnesses, who have attested the execution and to each of them the testator either should have given his personal acknowledgment of his signature or mark, or both of them should have been present at the time when the testator executed the document. Section 68 of the Evidence Act lays down the mode of proof of a Will by calling at least one witness, but it does not set out or purport to define what is required to be proved. That however has been laid down in Section 63(c) of the Indian Succession Act. Even if one witness, who is called, is able to depose to all that is required by Section 63(c) of the Indian Succession Act, for the valid execution of a Will, that would suffice for Section 68 of the Evidence Act....
25. In Pattammal v. Kanniammal (1981) 2 M.L.J. 89: A.I.R. 1981 Mad 252, V. Ramaswami J., (as he then was), after referring the very same provision, has held that the execution of a document will have to be proved by calling in at least one of the attesting witnesses and attestation itself has to be proved in the form in which Section 63(C) of the Succession Act requires. The learned Judge has further held that under that provision attestation will have to be proved by the attesting witnesses admitting attestation as also proving that they signed the document in the presence of the testator. Same view has been expressed by P. Venugopal, J. in Sarojini Ammal v. Anbazhagan (1984)2 M.L.J. 213, as well as by a learned single Judge of the Orissa High Court in T.V.S. Rao v. T. Kamashiammal A.I.R. 1978 Ori. 145. In Valliammal v. Palaniammal , I had an occasion to consider the very same provisions.
26. It is in the light of these principles, the evidence adduced in this case Will have to be considered. First I shall take up Ex.B-4, dated 17.8.1977, which is a settlement deed executed by Unnamalai Ammal in favour of the third defendant, son of the first defendant in respect of items 1 to 6 in B schedule properties. No doubt, in the case of settlement, the rule that at least one of the attestors has to be examined to prove the due execution is inapplicable. Though the said Unnamalai Ammal use to sign in all the documents, she had put her thumb impression in Ex.B-4. It is further seen that she is not an illiterate lady and by affixing her thumb impression in Ex.B-4, it raises suspicion in due execution of the said document. As rightly observed by the learned Subordinate Judge, there is no bar that the signatory cannot put her thumb impression. By pointing out the fact that the said Unnamalai Ammal put her thumb impression in Ex.B-4 in the presence of a Sub Registrar, the document may be accepted as a genuine document. The evidence of P.W.1, second plaintiff, shows that Unnamalai Ammal put her signatures in all the documents and except Ex.B-4, she had not used her thumb impression in any other documents. D.W.1, second defendant has deposed that the scribe Rajagopal is no more and he was one of the attestors of Ex.B-4. It is further seen that the other attestor, namely, Kandasamy has not been examined. As already referred to by me, D.W.1, is none other than the second defendant and son of the settlor Unnamalai Ammal. It is also the case of the plaintiffs that their mother Unnamalai Ammal was not having sufficient eye sight at the time of execution of Ex.B-4. This has been admitted by D.W.1 in his cross examination. In the absence of the examination of other attestors, D.W.1 being a close relative, namely, son of the settlor and also of the fact that Unnamalai Ammal had put their thumb impression only in this document, as rightly contended, it gives suspicious circumstances in the due execution of Ex.B-4 and I hold that the defendants failed to remove the legitimate suspicion. The contrary conclusion arrived by the learned Subordinate Judge cannot be accepted.
27. The other document to be considered is Ex.B-5 which is an un-registered Will dated 20.2.1978 executed by Unnamalai Ammal in favour of 8th defendant, daughter of the first defendant. By the said Will, the testator has conveyed items 7 to 10 in B schedule properties. Here, one Rathinam, scribe of Ex.B-5 has been examined as D.W.1, who is also none-else than the second defendant and son of the testator. Dhanusu, one of the attestors has been examined as D.W.3. The third defendant, who also attested Ex.B-5 has been examined as D.W.2. No doubt, the defendants have examined the two attestators and the scribe of Ex.B-5 to prove the due execution of the Will Ex.B-5, dated 20.2.1978. Though both D.Ws.2 and 3 have deposed that at the time of execution of Ex.B-5, the testator Unnamalai Ammal was hale and healthy and in good condition, admittedly she being a signatory put her thumb impression only in Ex.B-5. None of them has not explained the reason for using her thumb impression when she was physically hale and healthy. A perusal of their (D.Ws.2 and 3) evidence would clearly show that in order to satisfy Sub-section (3) of Section 63 of the Succession Act, they repeated that both of them noticed the thumb impression of the testator and in turn she also noticed their signatures in Ex.B-5. In view of the admission of D.W.1 that Unnamalai Ammal had poor eye sight during the last stages of her lifetime, absolutely there was no proof that she had executed the document after knowing or understanding the contents therein. As rightly contended by the learned Counsel for the appellants, the learned Subordinate Judge did not take note that the evidence of D.Ws.1, 2 and 3 bristles with contradictions as to the execution of Ex.B-5 and the same cannot be relied on for proving Ex.B-5. Further more, the evidence of D.Ws.1 to 3 is highly interested and it is not safe to rely upon their uncorroborated testimony. It is further clear that the propounder of Ex.B-5 has taken active part in the preparation of the same. The learned Subordinate Judge failed to consider that Ex.B-5 had been written by D.W.1 the second defendant in the suit which makes his evidence highly unreliable. For all the reasons stated above, I am unable to accept the conclusion arrived at by the learned trial Judge and I hold that the defendants failed to discharge the suspicious circumstances in execution of Ex.B-5.
28. Under Ex.B-6, dated 5.2.1979 Ponnia Mudaliar bequeathed "A" Schedule properties in favour of first defendant. In order to prove due execution and genuineness of Ex.B-6 Will, the defendants have examined one Kuppusamy, the scribe of Ex.B-6 as D.W.4. It is not disputed that in so far as Ex.B-6 is concerned, except the evidence of the scribe, no one was examined to prove the same. Even D.W.4 is none-else than the son-in-law of the first defendant and husband of 8th defendant. He has deposed that Ex.B-6 Will was written in the house of Ponnia Mudaliar and the same was written as per his dictation. He also admitted that one Venu Naidu, Samikannu and Perumal had attested Ex.B-6. In cross-examination, he admits that Ponnia had prepared a draft and handed over to him for copying the same into Ex.B-6. He also accepts that he simply copied the draft given by Ponnia Mudaliar. Admittedly, the said "draft" has not been marked. He also admitted that though the office of the Sub Registrar is situated near the house of Ponnia Mudaliar, Ex.B-6 has not been registered. He further admitted that except Perumal, the other 3 attesting witnesses are available. I have also verified Ex.B-6 which shows that 3 or 4 persons had attested the same. The only witness examined to prove the document (Ex.B-6 says) that except Perumal all other attesting witnesses are available even now. In such a circumstance, the non-examination of even one of the attesting witnesses is fatal to their case and Ex.B-6 has not been proved in terms of Section 63(C) of the Indian Succession Act and Section 68 of the Indian Evidence Act. It is not the case of the defendants that the other attesting witnesses other than Perumal were not available at the relevant time. The non-examination of at least one of the attesting witnesses raises a suspicion on the genuineness of Ex.B-6. Learned Counsel for the appellants has also brought to my notice the evidence of D. W.4 and contended that the testator Ponnia Mudaliar had put his signature only in one place in Ex.B-6. On the other hand, he signed in both the pages. In view of the said contention, I have verified the original of Ex.B-6. It contains two pages and the testator had signed in both the pages. However, D.W.4 in cross-examination has asserted that Ponnia Mudaliar had put his signature in one place only, which shows the only witness who has spoken about the execution of Ex.B-6, does not speak the truth. The learned Counsel for the appellants has also brought to my notice an insertion made in the second pages of Ex.B-6 that too in different ink. A verification of Ex.B-6 shows that there was an insertion in the second pages, particularly in the middle portion by using different ink and pen. This aspect has not been explained by any one. The learned Subordinate Judge failed to consider all the material aspects and, as rightly contented, he should have rejected Ex.B-6 as not proved in accordance with the law. In the light of the above mentioned infirmities, I hold that Ex.B-6 has not been proved in accordance with Section 68 of the Indian Evidence Act and Section 63(C) of the Indian Succession Act. The only evidence of D.W.4, who is the scribe of Ex.B-6, is insufficient to prove the due execution of the Will.
29. The above discussions would clearly show that there were suspicious circumstances in the execution of Exs.B-4 to B-6 and the same has not been properly explained by the defendants. Though both the plaintiffs and the defendants examined finger print experts, namely, P.W.3 and D.W.5 on their respective sides, in the light of the several infirmities in the case of the defendants, I am of the view that their opinion is not helpful to their respective case. After perusing their evidence and their report, I am not impressed with their statements and I hold that the defendants failed to establish the due execution of Exs.B-4 to B-6, more particularly in accordance with Section 63(c) of the Indian Succession Act and Section 68 of the Indian Evidence Act. The contrary conclusion arrived at by the learned Subordinate Judge is liable to be set aside.
30. Regarding "C" schedule properties, though the plaintiffs have claimed their share, no materials have been placed before the trial Court as well as this Court. Even according to the plaintiffs, the defendants 1 and 2 sold the land in "C" schedule to the 4th defendant. In the absence of any material, I am in agreement with the conclusion of the trial Court rejecting the said claim.
31. Regarding "D" schedule properties, as rightly observed by the learned trial Judge, those properties were not included in Ex.A-1 dated 23.4.1965. It is further seen that a Commissioner was appointed to verify the properties mentioned in D Schedule. The learned Judge, after verification of the details furnished in the plaint as well as the report of the Commissioner, came to a conclusion that there are discrepancies. In such a circumstance and in the absence of acceptable evidence on the side of the plaintiffs, I am of the view that the Court below is justified in rejecting the plaintiffs claim in "D" schedule properties.
32. In the light of what is stated above, the judgment and decree of the learned Subordinate Judge is set aside in so far as the plaintiffs claim relating to "A" and "B" schedule properties is concerned. The plaintiffs are granted a preliminary decree for partition and separate possession of their 3/5th share in "A" and "B" schedule properties. Defendants 1 to 4 are liable to render account of income from "A" and "B" schedule properties due to the plaintiffs towards their share and the same shall be ascertained at the time of final decree proceedings. Their claim in "C" and "D" schedule properties is dismissed. Net result, in O.S.No. 37 of 1981, a preliminary decree for partition and separate possession of plaintiffs 3/5th share is passed in respect of "A" and "B" schedule properties. Appeal is allowed in part. In view of the relationship of the parties, they are directed to bear their respective costs both in the suit and in the appeal.