Madras High Court
Bhagavathiammal vs Marimuthu Ammal on 30 March, 2010
Author: G.M.Akbar Ali
Bench: G.M.Akbar Ali
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/03/2010 CORAM THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI S.A.(MD)No.217 of 2004 and C.M.P.(MD)No.928 of 2004 Bhagavathiammal ... Appellant/ Appellant/ 8th Defendant Vs 1.Marimuthu Ammal 2.Kolappa Konar 3.Kshetra Bala Konar 4.Gomathi Ammal 5.Nagamony 6.Thangam 7.T.Kannaki ... Respondents Plaintiff and Defendants 1,3,5,6,9&10/ Respondents PRAYER The Appeal is filed under Section 100 of C.P.C. against the judgment and decree dated 12.07.2004 in A.S.No.15 of 2004 by the First Additional Subordinate Judge, Nagercoil, confirming the judgment and decree dated 25.11.2003 in O.S.No.249 of 1981 by the Principal District Munsif, Nagercoil. !For Appellants ... Mr.K.Sreekumaran Nair ^For Respondents ... Mr.S.Ponsenthil Kumar for R1 Mr.Ajmal Khan for R5 :JUDGMENT
The second appeal is preferred against the judgment and decree dated 12.07.2004 in A.S.No.15 of 2004 by the First Additional Sub Judge, Nagercoil, confirming the judgment and decree dated 25.11.2003 in O.S.No.249 of 1981 by the Principal District Munsif, Nagercoil. The 8th defendant is the appellant. The suit is filed for declaration and for recovery of possession and profits.
2.The brief facts of the case are as follows:
The plaintiff is the sister of the defendants 1 to 3 and there was one more brother viz., Mani @ Ramachandran, who was a mentally ill person, who died on 13.04.1980. Their mother Issakkiamma executed a "Will" dated 18.03.l977 and she died on 04.01.1978. According to the said "Will", after the death of the said Ramachandran the suit property is to devolve on the plaintiff. The said Ramachandran was under the care and custody of the plaintiff. After the death of the said Issakkiammal the defendants 1 to 3 did not hand-over the property to the plaintiff. Even after the death of the said Ramachandran, the defendants failed to hand over the property to the plaintiff. The defendants 4 and 5 are in possession of the property. Therefore, the suit is filed for declaration of title and for recovery of possession.
3.The suit was resisted by the defendants and all the 8 defendants have filed separate written statements. The defendants 1 to 3 had denied the "Will" dated 18.03.1977 and they have also denied that the said Ramachandran was a mentally ill patient and the second defendant would state that the said Ramachandran had leased out the first item of the property to one Nagamani in the year 1978 and the said Ramachandran had also executed a "Will" dated 01.04.1980 in favour of the second defendant and the second defendant has sold the property by a sale deed 14.07.1981 and the plaintiff has no right or title over the property.
4.The 6th defendant has supported the case of the second defendant as he is the purchaser from him and the 5th defendant would state that she is not a necessary party to the suit as her husband Nagamani is a lessee under the said Ramachandran for the first item of the suit property.
5.The 4th defendant would state that as per the "Will" dated 18.03.1977, after the death of the said Issakiamai her husband Sundalayandi Konar was in possession of the property for his life time and after his death, the persons mentioned in the "Will" has to enjoy the property and the said Sudailaiandi Konar is alive. The E Schedule of the property was given to the said Ramachandran. The 4th defendant has an interest over the 2nd item of the property and he was allowed to possess and enjoy the property.
6.The 7th defendant would also state that the said Issakkiamma had executed a dated 29.08.1968 "Will" and bequeathed the property to the children, Kolappa Konar, Setharabalan, Krishnan, Marimuthu and Bagavathiammal. The said Ramachandran was given certain properties and he was not mentally well and the 8th defendant was taking care of him and treating him and by a "Will" dated 29.08.1968 the 7th defendant has become the absolute owner of the property. On a settlement deed dated 29.07.1982, the 7th defendant has given the property to the 8th defendant. He denied the suit will.
7.The 8th defendant would also support the averments of the 7th defendant and would state that she is entitled for the suit property. The plaintiff filed a reply statement denying the averments made by the defendants.
8.Based on the above averments, the learned District Munsif framed as many as 16 issues and on basis of the oral and documentary evidence found that the defendants have created many documents after the death of the Issakkiamma and the 8th defendant has created a document which is not believable and found that the plaintiff has proved her case and had decreed the suit.
9.Aggrieved by which, the 8th defendant alone had preferred an appeal before the Sub Court, Nagercoil and the First Appellate Court had initially remanded the matter for proving of the suit will and once again the trail court decreed the suit and on appeal, the first appellate court once again considered all the evidences and had concurred with the Trial Court and has dismissed the appeal against which, the second appeal is filed on various grounds and this court has framed the following substantial questions of law:
"a)Whether the finding of the courts below that the Ex.A1 was proved is correct in spite of the fact that the plaintiff did not examine both the attesters and one of the attesters who was impleaded specifically denied the execution of Will Ex.A1?
b)Whether the lower court is right in upholding the "Will" merely on the basis of an opinion of the expert that the thumb impression contained in the 6th page of Ex.A1 "Will" tallied with that of the admitted thumb impression and Issakkiamma especially when there was clear evidence in Ex.B31 that the original "Will" had only 4 pages not 6 pages?
c)Whether the courts below erred in following the principle that the propounder of the Will has to prove the same?"
10.The admitted facts are as follows:
The 7th defendant one Sudalaiandi Konar (since died) and Issakkiamma had four sons and two daughters. The defendants 1 to 3 are the sons and the plaintiff Marimuthammal and the 8th defendant Bagavathiammal are the daughters and one Mani @ Ramachandran was also a son. Issakkiamma executed a "Will" dated 28.09.1968 under Ex.B.31. The said Mani @ Ramachandran was a mentally ill patient and the suit property was allotted to him. According to the plaintiff, Issakkiamma executed a "Will" dated 18.03.1977, Ex.A1, under which, the earlier will was cancelled and the suit property was allotted to the 7th defendant for his lifetime and the said Mani @ Ramachandran to be taken care of from the income and thereafter if he becomes a normal person the property has to go to him and in the event of his death, the property is to devolve upon the plaintiff. Under this "Will" the earlier "Will" was cancelled and there were many transactions and proceedings between the plaintiff and her sister regarding the suit property and both were claiming title through the respective "Will". There were many transactions and also claims that they were the persons taking care of the said Mani @ Ramachandran who died on 13.04.1980. The plaintiff claiming title and possession filed a suit in the year 1981 after a remand by the Appellate Court now it has reached the second appeal stage of litigation and the sisters are fighting for the last 30 years.
11.However the plaintiff was called upon to prove the suit will. As both the attestors were not alive to prove the execution of the "Will", the Trial Court proceeded under Section 69 of the Indian Evidence Act. The Trial Court, after remand from the Appellate Court had subjected the "Will" for an expert opinion to compare with the available thumb impression of the said Issakkiamma and held that the "Will" is proved in the manner known to law. Both the courts below have held that Ex.A1, the disputed "Will" dated 18.03.1977 was proved by the propounder and the correctness of such finding is questioned in this second appeal.
12.Mr.K.Sreekumaran Nair, learned counsel for the appellant would submit that the execution of the "Will" was not proved in accordance with Section 68 of the Evidence Act and Section 63 of Indian Succession Act. The learned counsel pointed out that the 7th defendant who is one of the attestor in the "Will" had denied the execution of the "Will" and the Courts below upholding the "Will" on the basis of an opinion of the expert is against law and therefore, the "Will" has to be rejected. The learned counsel also pointed out that Ex.A1 is a manipulated document and therefore, the reliance ought not have been placed on the disputed "Will".
13.The learned counsel relied on the following decisions reported in :-
1)2002(1)LW 460 (N.Kamalam (dead) and another Vs. Ayyasamy and another) wherein the Supreme Court has held as follows:
"25.The requirement of attestation presently in the Country is statutory in nature, as noticed herein before, and cannot as such be done away with under any circumstances. While it is true that in a testamentary disposition, the intent of the attestor shall have to be assessed in its proper perspective but that does not however mean and imply non-compliance of a statutory requirement. The intention of the attestor and its paramount importance cannot thwart the statutory requirement. ..."
2)2003(1) CTC 308 (Janki Narayan Bhoir Vs. Narayan Namdeo Kadam) wherein the Supreme Court has held as follows:
"8.To say will has been duly executed the requirements mentioned in clauses (a),
(b) and (c) of Section 63 of the Succession Act are to be complied with i.e.,
(a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a will; (c)the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witness has to sign the will in the presence of the testator."
3)2005(1) CTC 11 (Janaki Devi Vs. R.Vasanthi and others) wherein this Court has held as follows:
"...Sections 69 and 71 of the Indian Evidence Act is an exception to the general rule contained in Section 68 of the Indian Evidence Act. Under Section 69 of the Indian Evidence Act, if no attesting witness is found it can be proved by other evidence that the attestation of one attesting witness at least is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. Section 71 of the Indian Evidence Act is to meet the situation, where it is not possible to prove the execution of a Will by calling the attesting witness, though alive, or when the attesting witnesses have been called, they deny or fail to recollect the execution of the document. In that way, Section 71 of the Indian Evidence Act is incorporated to safeguard the mandatory provisions of Section 68 of the Indian Evidence Act. Section 71 of the Indian Evidence Act is only to give assistance and come to rescue of a party who has taken steps to get attesting witness to give evidence, but he failed to such witness denied or failed to recollect the execution of the Will. This is only with a view to prove the due execution by "other evidence"...."
4)AIR 2008 SC 2485 (Babu Singh and others V. Ram Sahai @ Ramsingh) wherein the Supreme Court has held as follows:
"14.It would apply, inter alia, in a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the Will may be proved in the manner indicated in Section 69, i.e.,by examining witnesses who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others."
14.On the contrary, Mr.Pon Senthil Kumar, learned counsel for the first respondent would submit that both the courts below have tested the "Will" and has come to the conclusion that the "Will" was executed in accordance with law and therefore, the finding cannot be challenged in the second appeal. The learned counsel pointed out that when both the attesters were not available, the plaintiff is bound to prove the "Will" in some other means and therefore, the thumb impression has been subjected for expert opinion and that proved to be the thumb impression of the executant.
15.Heard the learned counsel for the appellant and the learned counsel for the respondent and perused the material on record.
16.Section 63 of the Indian Succession Act reads as follows:
"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 o 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 been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement 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."
17.Section 68, 69 and 71 of the Indian Evidence Act read as follows:
"68.Proof of execution of document required by law to be attested.-If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least 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 witnesses in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.)
69.Proof where no attesting witness found.-If no such attesting witnesses can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.
71.Proof when attesting witness denies the execution.-If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."
18.Ex.A1 is the registered "Will" dated 18.03.1977 which was executed by the said Issakkiamma and under this "Will" Schedule-C which is the suit property, has been allotted to Mani @ Ramachandran on condition that her husband Sundalaiandi Konar (7th defendant, since died) has to enjoy the said property during his life time with the help of her daughter Marimuthammal (plaintiff) and to maintain the said Mani @ Ramachandran, who is mentally ill and if the said Mani @ Ramachandran has become normal, he is entitled to take the property and in the event of his death, the said Marimuthammal has to enjoy the property absolutely. There were two attesting witnesses in the said "Will" and one of the attesting witness is her husband Sudalaiandi Konar himself.
19.When the suit was filed, Sudalaiandi Konar was alive and later he was impleaded as a party to the suit. The suit was taken up for trial and the plaintiff was examined on 14.12.1983. The 7th defendant who was aged 85 years at the time of filing of the suit and was living with the appellant and he sailed along with the appellant and had denied the execution of the "Will" and hence, was not examined as one of the attester by the plaintiff. As far as the other attester is concerned he has signed in Malayalam and the plaintiff has not even mentioned his name. The name and address are also not available in the document. One Antonysamy of Nagercoil was the scribe of the "Will" and he was examined as P.W.3. He would say that the first attesting eitness was one Parameswaran Pillai son of Chellappan Pillai of Suseendaram and he is not alive. Therefore, the plaintiff has no other alternative except to invoke Section 69 of the Indian Evidence Act.
20.It is well settled that under Section 69 of the Act the plaintiff has to examine some one who is acquainted with the handwriting of at least one attesting witness and such witness should depose that signature of the attesting witness found in the "Will" is that of the attesting witness whose signature he is familiar with and the signature of the testator whose signature he is familiar with.
21.In 2008 (14) SCC 754, the interpretation of Section 69 of the Act, was analysed by the Supreme Court. The case before the Supreme Court was that a "Will" was executed by one 'X' in favour of the plaintiff on 25.09.1991 and the same was duly registered on the same date and the said "Will" was attested by two witnesses 'Y' and 'Z' and one of the attesting witness 'Y' died and the other witness 'Z' was alive but has joined hands with the opposite party and could not be examined and the scribe of the "Will" was examined. However, no steps were taken to examine 'Z' and a statement was made by the counsel for the plaintiff before the First Appellate Court that 'Z' has joined hands with the opposite party. Under those circumstances, the Supreme Court has held that Section 69 of the Act, have no application.
22.In 2003(1) CTC 308, the Supreme Court has held as "11.Section 11 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68, Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling attesting witnesses, though alive. This section provides that if an attesting witness denies or does not recollect the execution of the Will, its execution may be proved by other evidence Aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. Section 71 has no application to a case where one attesting witness, who alone has been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the execution of the same, for the reasons best known, have not been summoned before the court. It is clear from the language of Section 71 that if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. ..."
23.Therefore, the facts of the case dealt in the above two decisions are not applicable to the facts of the case on hand.
24.In 1997(2) CTC 369 (Mohammed Mohideen Vs. Muthukumara Thevar and another), a learned Single Judge of this Court held as follows:
"2.Section 69 of the Evidence Act requires the person to prove that the signature of the executor is in his handwriting and the defendant has let in evidence by examining DW.2 that the executor has signed the will in his presence and the attesting witnesses have also signed in his presence. This evidence has not been challenged in the cross-examination and as such the courts below have accepted this evidence and found that the will is genuine. I do not find any irregularity in the finding of both the courts below with regard to the genuineness of the will."
25.The decision of the learned Single Judge was challenged by way of filing O.S.A. before a Division Bench and the same was reported in 2005(1) CTC
11. The Division Bench after referring various decisions upheld the finding of the learned Single Judge, where the Single Judge had held that the examination of the scribe to satisfy the two conditions of Section 69 of the Act is enough to prove the "Will".
26.In 1999(3) CTC 378 (R.Vasanthi Vs. Janaki Devi and others), this Court has held as follows:
"...These two decisions based on Section 69 would go to show that in the circumstances when both the attesting witnesses could not be examined, the signature of any one of the attesting witnesses in his handwriting can be proved through a witness who known the signature of the said attesting witnesses. The plaintiff as P.W.1 has clearly stated that she knows the signature of both attesting witnesses and identified their signatures as she was present at the time of attestation of Ex.P.1 and as such the proof required under law has been satisfied by the plaintiff."
27.It is well settled that a "Will" has to be proved as required under law with regard to Section 63 of the Indian Succession Act and under the provisions of Section 68 of the Indian Evidence Act. Section 69 of the Act comes into the application where no attesting witness is found. It is an enabling provision for the propounder to prove the "Will" when there is no attesting witness found. This provision will be applicable in a case where the attesting witness is either dead or out of the jurisdiction of the Court or kept out of the way by the adverse party or cannot be traced out despite diligent search. Under Section 68 of the Act, the propounder is expected to call upon to examine at least one attesting witness in addition to lead evidence to explain the surrounding suspicious circumstances if any raised by the opposite party. However, under Section 69 of the Act the propounder is called upon to examine witness, who are able to prove the handwriting of at least one attesting witness and the handwriting of the testator and the burden of prove is then shifted to others, who denies the execution of "Will". Section 71 of the Indian Evidence Act, comes into application, when the attesting witness is summoned and while examination, denies or does not recollect the execution of the document. Therefore, if the mandate under Section 68 of the Act could not be performed then Section 69 of the Act lends help to the propounder and if the propounder examines any one person to prove that the attestation of the one attesting witness at least is in his handwriting and the signature of the person executing the document is in the handwriting of that person.
28.In the present case, one attesting witness is dead and another attesting witness was arrayed as 7th defendant and had denied the execution of the "Will" itself and he also died during the pendancy of the trial. Had he been summoned to give evidence, he would have denied the execution of the document and then Section 71 of the Act would have been pressed into service. Therefore, in the present case Section 69 of the Act alone is applicable.
29.P.W.3 the scribe was examined and he had stated that the executant had affixed her thumb impression in Ex.A1 and the attesting witnesses had also signed in his presence. The thumb impression of the executant was also subjected for examination by an expert and he has opined that the thumb impression found in Ex.A1 on comparison to the thumb impression of the executant in other documents were found to be the same.
30.The difference between Section 68 and Section 69 of the Act is, in the former, one attesting witness at least has to be called for for the purpose of proving its execution and in the later, it must be proved that the attestation of one attesting witness at least is in his handwriting and the signature of the person executing the document is in the handwriting of that person. Section 69 of the Act does not specify the mode of such prove. In other words, the handwriting can be spoken by a person who has acquaintance of the handwriting or the signature can be proved by comparison with the admitted handwriting or the signature of the person executing the document.
31.Though the scribe cannot speak about the execution of a document, he can always speak about the attestation and the signature of the attesting witness and the executant and he is a competent witness when section 69 of the Act is pressed into service.
32.In the present case, the scribe has spoken about attestation of one attesting witness and the thumb impression of the executant and further more the thumb impression in the disputed document is compared by an expert with the admitted thumb impression of the executant and found to be the same. Therefore, the requirement under Section 69 of the Act is complied with. In order to prove a will the propounder is expected to examine at least one attesting witness in addition to lead evidence to explain the surrounding suspicious circumstances if any raised by the opposite party. As stated above the the requirement under section 69 of the Act has been complied with and as far as the evidence to explain the surrounding suspicious circumstances, both the courts below have concurrently found on facts that the plaintiff has explained the circumstances under which the testator had cancelled the earlier will and executed the suit will. The courts below have rightly found that the execution of the "Will" is proved and I have no reason to interfere with. The question of law are answered accordingly.
33.In the result, the appeal is dismissed and and the judgment and decree of the Appellate Court is confirmed. No costs. Consequently, connected M.P.is closed.
nbj To
1.The First Additional Subordinate Court, Nagercoil.
2.The Principal District Munsif, Nagercoil.