Madras High Court
Ayyasamy Pillai vs Rajangam And Natarajan on 23 September, 2003
JUDGMENT M. Thanikachalam, J.
1. The unsuccessful plaintiff before the courts below is the appellant.
2. The plaintiff/appellant and the defendants/ respondents, are the sons of one Samiayya Pillai, who died on 7.4.1985. His wife is one Kamakshi Ammal. Samiayya Pillai and his sons including the plaintiff and the defendants, partitioned their family properties, under a registered partition deed dated 22.6.1961. Natarajan, the second defendant and one Ramakrishnan, another son of Samiayya Pillai were minors at the time of the partition. Therefore, the properties allotted to them, were enjoyed and managed by their father, Samiayya Pillai. The second defendant after attaining majority, took possession of the properties allotted to him, under the registered partition deed.
3. Minor Ramakrishnan died at the age of 15 or so, elsewhere in the year 1967 or 1968. After the death of Ramakrishnan, Samiayya Pillai continued to enjoy the properties allotted to Ramakrishnan, also paying the revenue charges to the Government. Till the date of his death, Samiayya Pillai and his wife Kamakshi were under the care and protection of the eldest son viz., the plaintiff and therefore, they had special affection towards the plaintiff. Samiayya Pillai had executed a registered will dated 8.6.1981 in favour of the plaintiff, bequeathing the properties allotted to him, in the partition, as well as the property purchased by him, under a registered sale deed dated 4.6.1981, including the properties allotted to Ramakrishnan, who died unmarried. The Will came into force on the date of death of the executant on 7.4.1985. Thus, the plaintiff became the absolute owner of the suit properties.
4. The second defendant had forcibly entered into possession of the family house bearing door No. 3/15, though the mother was in occupation of the said house. After the second defendant Natarajan came into possession of the house, he had burked all the documents, under the ill advice of the first defendant and therefore, the plaintiff is unable to produce the original documents. 'A' schedule property - landed properties - are continuously in the possession of the plaintiff, in which the defendants have no right. The defendants attempted to disturb the plaintiff's possession, which was thwarted. Since the second defendant has been in possession of the house, the plaintiff was constrained to file the suit for recovery of possession, in respect of 'B' schedule properties. On the above averments, the plaintiff had filed the suit for declaration, permanent injunction regarding 'A' schedule properties, and for declaration and possession regarding 'B' schedule properties.
5. The suit was opposed by the defendants, inter alia, contending that the suit is bad for non joinder of necessary parties, that the will relied on by the plaintiff is not genuine and the same was not given effect to, which was accepted in the Panchayat, that there was a Panchayat on 9.8.1975, in which the plaintiff was given 11 mahs 48 kuzhis including 71 cents in Survey No. 289/6 described in the Schedule 'A', and other items were given to the first defendant, that the properties allotted to Ramkrishnan devolved upon Kamakshi as heir to her son, over which the father had no right to execute a Will, that the father had no right or title to execute a Will with regard to items 3 to 6 of 'A' schedule properties and 'B' schedule properties, that the Will even though not genuine, not acted upon, since he would not have executed the Will, out of his own free will and volition and denying other allegations also, prayed for the dismissal of the suit.
6. On the above pleadings, the parties went on trial before the trial Court. It seems the suit was originally dismissed on 26.10.1987, against which an appeal was preferred in A.S.No. 47/88. It appears, in order to give an opportunity to the plaintiff, to prove the execution of the Will, by the examination of the attesting witness, the case was remitted back to the trial Court. After remand, the learned District Munsif, evaluating the materials available on record and the evidence previously recorded as well as evidence recorded after the remand, came to the conclusion that the plaintiff has failed to prove the execution of the Will, as contemplated under law, that Samiayya Pillai had no absolute title or interest in all the suit properties, to execute a Will validly, in favour of the plaintiff, that the Will came into surface under some mysterious circumstances, which were not explained to give effect to the alleged solmen document viz., the Will and that the properties allotted to Ramakrishnan ought to have gone to his mother and not to the father, which should follow that he had no testamentary capacity, to execute a valid Will, in respect of the properties allotted to Ramakrishnan, that the suit is bad for non-joinder of necessary parties, and that there was a Panchayat on 9.8.1985, in which the plaintiff had agreed not to enforce the Will, whereas, he had agreed for the division, proposed by the Panchayatdars. On the above said findings, the trial Court had come to the conclusion that the suit, as such, is not maintainable and the plaintiff is also not entitled to any relief, as claimed.
7. The dismissal of the suit, once again by the trial Court failed to satisfy the plaintiff and therefore, he impugned the judgment and decree before the appellate Court in A.S.No. 45/90. The learned District Judge, Thanjavur, perusing the records, hearing the arguments, came to the conclusion, that the learned District Munsif had not committed any error, warranting reversal of the findings. In this view, the learned District Judge concurred with the findings of the trial Court, affirmed the same, dismissing the appeal, thereby giving further cause of action for the plaintiff once again, to prefer this appeal.
8. Heard the learned counsel for the appellant, Mr. Thyagarajan and the learned counsel for the respondents, Mr. N. Kannan.
9. The learned counsel for the appellant submitted that the execution of the Will was admitted by the respondents and therefore, the non examination of the attesters to the Will may not loom large in this case and in this view, the evidence given by P.W.2 ought to have been accepted, to prove the execution of the Will, but the courts below have committed an error, which requires rectification by the interference of this Court. It is the further contention of the learned counsel for the appellant, that for the non production of the original Will, sufficient explanations were pleaded in the plaint, supported by evidence and therefore, it should be held that the Will, Ex.A2 is proved. Therefore, according to the learned counsel for the appellant, since the execution of the Will, by Samiayya Pillai, viz., the original of Ex.A2 was proved, the courts below ought to have decreed the suit.
10. On the other hand, the learned counsel for the respondents would submit, that there is no proper, acceptable explanation for the non production of the original of Ex.A2, which should follow, Ex.A2 itself is an inadmissible document and therefore, the execution of the Will stands not proved. He further submits, that none of the attesters to the alleged Will, was examined and therefore, the mandatory provisions of the Evidence Act as well as the Indian Succession Act, were not complied with, in this case and the consequential effect should be, the suit based on Will should fail. It is the further contention of the learned counsel for the respondents, that in the properties allotted to Ramakrishnan, Samiayya Pillai had no semblance of right, but unfortunately, he had included those properties also under the original of Ex.A2, and in this view, the Will is ineffective or inoperative, as far as Ramakrishnan's properties are concerned. The learned counsel for the respondents, further submits that Samiayya Pillai and his wife were living under the same roof, without any friction and they had no ill-feeling or hatred towards the other sons, and the position being so, it is highly unbelievable that Samiayya Pillai would have chosen only the plaintiff, to inherit his properties, by bequeathing the same, under a Will and in this view of the matter, it should be construed that the Will is not a genuine one, though it is registered. Therefore, according to him, the suspicious surrounding circumstances, and the dark clouds hovering over the Will are not cleared, to the satisfaction of the Court, which should compel the Court, to negative the Will. In order to appreciate the above plea and counter plea, we have to see the relationship between the parties, nature of the properties, pleadings and how the parties are claiming title to the properties, on the basis of the pleadings.
11. Samiayya Pillai and Kamakshi are the parents of the plaintiff and the defendants. They had two other sons by name Arumugham (P.W.2) and one Ramakrishnan. Except the properties covered under Ex.A3, which is the subject matter of the suit also, the joint family owned other suit properties, as well as some other properties. On 22.6.1961 as evidenced by Ex.A1, all the sharers have divided their joint family properties. In the partition, items 1 to 6 of 'A' schedule properties and item 1 of 'B' schedule properties appear to have been allotted to the share of Samiayya Pillai and items 2 & 3 of 'B' schedule properties were allotted to the share of Ramakrishnan, as submitted by the parties before this court. Item 7 of 'A' schedule properties had been purchased by Samiayya Pillai, after Ex.A1, on 4.6.1981 under Ex.A3. Regarding the partition and allotment of the properties, as said above, there is no dispute. Samiayya Pillai and his wife Kamakshi were living together, as seen from the evidence and as per the pleadings also. There was no strained relationship between the father and sons. He had no animosity against the wife also and in fact, they were living under the same roof, as husband and wife.
12. One of the sons of Samiayya Pillai viz., the plaintiff, claiming that his father had bequeathed all the suit properties, in his favour, had filed the suit, as said supra, for the reliefs mentioned in the plaint. It is an admitted fact, that Ramakrishnan died at the age of 15 or so, while he was minor and unmarried. Mother of Ramakrishnan is alive. Therefore, under the Law of Succession, the properties left by Ramakrishnan, should devolve upon the mother alone, and the father had no right to claim absolute right over the properties, allotted to Ramakrishnan. The properties allotted to Ramakrishnan were also included in the Will. Hence, it should be shown, how Samiayya Pillai became the owner of the properties, allotted to Ramakrishnan, under the partition, viz., Ex.A1. In this regard, I find no pleadings and I should say, nil evidence.
13. Plaint paragraph 2 reads, the properties allotted to minor Ramakrishnan were in the enjoyment of Samiayya Pillai and those properties also had been bequeathed by Samiayya Pillai, in favour of the plaintiff. Nowhere, in the plaint, it is stated that Samiayya Pillai inherited the properties of Ramakrishnan or earned or acquired right, under the process known to law. Though continuous possession claimed, it is not the case of the plaintiff, that vested any legal right in favour of Samiayya Pillai extinguishing the right of the legal heir. Therefore, I find no right in Samiayya Pillai to bequeath the properties, allotted to Ramakrishnan, validly, in favour of the plaintiff. For this legal position, there was no answer from the learned counsel for the appellant. Therefore, it should be held, as far as the properties allotted to Ramakrishnan in the partition are concerned, Samiayya Pillai had no right to bequeath the same in favour of the plaintiff and to this extent, definitely, whether the Will is genuine or not, it should be held as unenforcible or invalid. The consequence must be, the plaintiff is not entitled to any relief, to the properties, fell to the share of Ramakrishnan.
14. The plaintiff/appellant has projected a Will, claiming interest over the properties of his father, excluding other heirs. A Will prevents the natural succession and divert the succession according to testament, thereby depriving the other heirs, from inheriting the properties, which they would inherit from the father ordinarily, if he had died intestate. The natural intestate succession, when sought to be blocked by testate succession viz., in this case, by a Will, the burden is very heavy upon the shoulders of the plaintiff, to prove the Will, which he had propounded, in order to inherit the properties. Irrespective of the pleadings, regarding the denial of execution of the Will, it is the primary duty of the propounder of the Will, in this case, the plaintiff, to satisfy the ingredients of Section 68 of the Indian Evidence Act as well as Section 63 of the Indian Succession Act. If the execution of the Will could not be proved by examining the attester or in the absence of non availability of the attester, to prove the same, secondary evidence can be let in, as contemplated under Section 69 of the Indian Evidence Act.
15. In this case, as rightly contended by the learned counsel for the respondents, and as rightly held by the courts below concurrently, the plaintiff had not only failed to prove the execution of the Will, but also failed to take any serious attempt, to prove the execution of the Will, by examining the attesters or proving the signature of the executant, as well as by proving the signature of the attester in the Will, if they are not available. The original Will said to have been executed by Samiayya Pillai has not seen the light of the day. The registration copy of the said Will alone is produced and exhibited as Ex.A2, giving mark. For the non production of the original of Ex.A2, even in the plaint, an attempt is made to explain, which could be seen from paragraph 3 of the plaint. It says, the second defendant forcibly entered into the house and burked the documents. It is not the case of the plaintiff, that the original Will is available with the defendants. It is also not the case of the plaintiff, that the original Will was handed over to him by the executant and the same was in his custody at some point of time and he was deprived of the same, at later point of time. If really, the defendants had stealthily removed the original of Ex.A2, the plaintiff ought to have preferred, at least a complaint to the police. But against the pleadings, P.W.1 has given evidence, as if the Will is available in the house bearing Door No. 3/15. It is not the case of the plaintiff, when he was in the box, that the second defendant removed the Will, whereas it is his case that since the second defendant is living in the house, he is unable to take out the original. If that is the fact, at least, he should have sought the help of the trial Court to take out an inventory commission, to unearth the original Will, from the house, which is under the control of the second defendant. He did not do so. Thus, it is seen the pleadings are not supported by the oral evidence of P.W.1, for the non production of the original. Since the plaintiff had failed to submit proper and acceptable explanation, for non production of the original Will, permitting him to file registration copy as secondary evidence, is not sustainable. In the absence of explanation for the loss of primary evidence, admitting secondary evidence, is against the law and in this view, I should conclude, in the absence of the original Will, the plaintiff is not entitled to either declaration or any other relief, as claimed in the plaint. Assuming that the plaintiff was unable to produce the original Will, for the reasons, which were beyond his control, let me see whether the execution of the Will is proved or not, as known to law.
16. At the time of admission of this appeal, one of the substantial questions of law formulated was:-
"1. Whether Ex.A2 the Will dated 8.6.1961 should be proved as provided from the Section 63 of the Indian Succession Act and Section 69 of the Indian Evidence Act when the respondents admitted the genuineness of the Will but only contend that it was not given effect to in questions of decision in a panchayat (Mediation)?
17. In the additional questions of law also, it is stated that the Will should be deemed to have been proved, by drawing an adverse inference, due to the non examination of the second defendant. It is the duty of the plaintiff to prove the execution of the Will and no duty is cast upon the defendants, to prove the non execution of the Will. Therefore, the non examination of the second defendant will not prove the execution of the Will or it may not relieve the plaintiff from discharging his duty as mandated under Law. The contention that the genuineness of the Will was admitted by the respondents is a myth, which could be seen from the reading of the written statement. The written statement says that the defendants are not admitting the genuineness of the Will. Further it says, even though the Will is not genuine, it is not acted upon and the Will would not have been executed by his father, out of his free will and volition. Thus, the defendants made it clear that they have not accepted the genuineness of the Will, including the execution of the Will voluntarily, out of free Will and volition by Samiayya Pillai, which are very essential for an enforcible Will. Therefore, the first substantial question of law is in correct and the burden cannot be shifted or thrown upon the defendants, as if, they have admitted the execution, thereby relieving the plaintiff from proving the genuineness of the Will. In view of the specific stand taken by the defendants in the written statement, it is more obligatory as well as mandatory on the part of the plaintiff, to comply Section 68 of the Indian Evidence Act.
18. The fact that the Will comes within the ambit of Section 63 of the Indian Succession Act, could not be in dispute. Section 63 contemplates how a Will should be executed, signed, attested, etc. If the Will is not 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, then it may not have the effect of the Will, as understood in the legal parlance. Section 68 of the Indian Evidence Act, contemplates proof of execution of a document required by law to be attested. If those requirements are not complied with, then that document shall not be used as evidence. It reads "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 witness 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"
19. The proviso to the above section will not come to the aid of the plaintiff since it execludes the Will, even in case of registration of the document. In this view, the plaintiff cannot escape, from examining at least one attesting witness if alive for the purpose of proving its execution, on the ground execution is admitted, genuineness alone is questioned or the enforcibility alone is questioned, etc. From the reading of the plaint also, I am unable to see any averments, indicating that the attesters are not available. P.W.1 himself also failed to speak about the availability or non availability of the attesters. He would state, that in the Will, the second defendant signed as an attesting witness. He has not given evidence regarding the availability or the non availability of the other attesting witness, though there is some evidence, regarding the death of the scribe. Admittedly, in this case, the attesting witness has not been called for, to prove the execution of the Will as mandated under Section 68 of the Indian Evidence Act. At least the plaintiff ought to have summoned the second defendant, as mandated under Section 68 of the Evidence Act, whether he would support the case of the plaintiff or not, thereby satisfying a portion of Section 68 of the Indian Evidence Act, which has not been done.
20. The law provides alternative mode of proof of the documents, if the attesting witness cannot be found or not available and for that purpose, Section 69 of the Indian Evidence Act is available. It says, if no attesting witness could be found, it must be proved that the attestation of one attesting witness at least is in his hand writing, and that the signature of the person executing the document, is in the hand writing of that person. Here, since the plaintiff had failed to produce the original, this Court is unable to say or see, whether the Will was attested by the person concerned or it bears the hand writing or signature of the person executing the document. Thus, it is crystal clear, the plaintiff also failed to invoke Section 69, to prove the execution of the Will.
21. The learned counsel for the appellant would submit that execution of the Will is admitted by the defendants and therefore, the non examination of attesting witness may not loom large. It is the further submission of the learned counsel for the appellant that when the execution of the Will or attestation thereof, not disputed, compliance of requirement under Section 68 of the Indian Evidence Act, may not be necessary, seeking the aid of the decision in Thayyullathil Kunhikannan v. Thayyullathil Kalliani . As seen from the judgment, in the case involved in the above decision, it seems the execution of the Will was admitted or there were pleadings at least to infer that the parties are deemed to have admitted by their pleadings regarding the execution of the Will. Therefore, the Division Bench of Kerala High Court had held, drawing inference under Order VIII Rule 5 C.P.C. as well as under Section 58 of the Indian Evidence Act, that no fact need be proved, in any proceedings, which by any rule of pleadings in force at that time, the parties are deemed to have admitted by their pleadings. In this view of the matter, the Division Bench had observed:
"S.68 relates to those documents which require to be proved at the trial of a suit. If by any rule of law or of pleadings, such proof is not required, S.68 cannot operate to insist on formal proof by calling an attesting witness. S.58 has to be read as overriding S.68 and as obviating the necessity for calling an attesting witness, unless the execution of the will or the attestation is in dispute. In the absence of any such plea in the written statement, it will be the height of technicality and waste of judicial time to insist on examination of an attesting witness, before a will could be used as evidence. O.8, Rule 5 C.P.C. deems the execution of the will to be admitted in the absence of any denial thereof in the written statement. Examination of an attesting witness is therefore unnecessary when the parties have not joined issue on the validity or genuineness of the will."
To apply the above dictum, we have to see the pleadings in this case.
22. In the written statement, the defendants have made it very clear, that they are not admitting the genuineness of the Will. Further, they would contend in the written statement that this Will would not have been executed by their father, out of his own free will and volition and in this way, they would state further, that even though the Will, not genuine, it was not acted upon. By the above express pleadings, the defendants have made it crystal clear that they have not admitted either directly or impliedly regarding the execution of the Will, its voluntary nature and its genuineness also. Therefore, applying the above principles, question of giving relief to the plaintiff from non compliance of Section 68 of the Indian Evidence Act, would not arise. In this view, in my considered opinion, the above ruling is not at all helpful and still Section 68 should operate.
23. Originally, the suit was dismissed and to give an opportunity, for the plaintiff to examine the attesters, the matter was remanded by the first appellate Court and thereafter, it seems P.W.2 was examined. Admittedly, P.W.2 is not an attesting witness to the Will. According to P.W.2, he was assisting the scribe, who has written the document, as a copy writer. Admittedly, he has not signed in the original of Ex.A2, as an attesting witness. Therefore, at any stretch of imagination, he will not come within the meaning of an attesting witness. A person, who stands near the executant, at the time of execution of the document, assuming had seen the signing of attesters and executant, could not be described, as an attesting witness, unless he puts his signature in the Will, animo attestant. Though P.W.2 has deposed, as if, he had seen the execution of the document, signing by Samiayya Pillai, attested by other witnesses, he was unable to identify the signatures in the Will, in view of the fact, the original is not available before this Court.
24. Ex.A.14 is the Register of Wills, maintained by the Sub Registrar, Thirukattupalli. Ex.A.15 is the book maintained by the Registar's Office relating to office attendance about the persons, who had presented the documents for registration. If at all these documents would prove that Samiayya Pillai had been to the Registrar's Office, for presenting the original of Ex.A2 and these documents will not prove, either the attestation or the valid execution, dispensing Section 68 of the Indian Evidence Act. As seen from Ex.A14, Samiayya Pillai said to have confessed before the Registrar's office by signing and acknowledging the presentation of the Will for registration. This document does not disclose about the fact, that Samiayya Pillai had admitted the execution or that Will was attested by two witnesses, as required under law. Therefore, the copy filed before the Registrar's Office will not prove that the attesters had attested the Will, consciously, knowing about the contents, etc. In my considered opinion, P.W.2 could not be labeled or treated or termed as an attester to the Will as defined under law, which should follow, his examination will not fulfill or satisfy the conditions, contemplated under Section 68 of the Indian Evidence Act. It is a settled proposition of law, that an attesting witness is one, who signs the document in the presence of executant, after seeing the execution of the document or after receiving the personal acknowledgment, from the executant, as regards the execution of the document and not a person, who stood nearby, at the time of the execution of the document. P.W.2 had not attested the Will and therefore, his evidence will not come to the aid of the plaintiff, to prove the execution of the Will, as understood under the law.
25. The younger brother of the plaintiff by name Mr. Arumugham has been examined as P.W.3. He has deposed that Exs.A14 and A15 do contain the signatures of his father. He has not stated anything about the Will said to have been executed by the father or its attestation, etc. Admittedly, he went to other family as an adopted son. When he has spoken about the signature of his father in Exs.A14 & A15, it was disputed. He also further admitted about the panchayat and the allotment of properties, in pursuance of the decision taken by the panchayat, which was denied by P.W.1. Therefore, in my opinion, the oral evidence of P.W.3, instead of improving the case of the plaintiff, weakens the same to certain extent. Thus, it is seen, even after the remand, the plaintiff has miserably failed, in proving that the Will was executed by his father, attested validly by the witnesses, as contemplated under Section 63 of the Indian Succession Act, which should follow the appellant should meet the same result once again.
26. The learned counsel for the first respondent has submitted, that there are many grey areas or suspicious circumstances surrounding the Will and unless those suspicious circumstances are cleared, on the basis of the Will, natural succession could not be diverted. In aid, the decision in Ramchandra Rambux v. Champabai and others was brought to my notice. The Apex Court of this Court has held:-
"In order to judge the credibility of the witness, the Court is not confined only to the way in which the witnesses have deposed or to the demeanour of the witnesses, but it is open to it to look into the surrounding circumstances as well as the probabilities, so that it may be able to form a correct idea of the trustworthiness of the witnesses. This issue cannot be determined by considering the evidence adduced in the Court separately from the surrounding circumstances brought out in the evidence, or which appear from the nature and the contents of the document itself."
27. Admittedly, Samiayya Pillai had other sons and wife, who lived at the time of the alleged execution of the Will. Even assuming that the parents were maintained by the plaintiff/appellant, there is no acceptable reason, why Samiayya Pillai should choose the plaintiff alone, excluding the other sons and wife, totally. If the plaintiff had the affection towards the parents vice versa and if that affection had compelled Samiayya Pillai to execute the Will, even screening the wife, then the mother of the plaintiff must be the proper and fit person to speak the same. But she has not been examined. There is no strained relationship of any kind and not even suggested so, to exclude the other brothers and wife. From this angle, if we view the Will, it appears to my mind that there is something wrong in the will and it is surrounded by suspicion, and the plaintiff/appellant had not taken any steps to clear the same.
28. One of the items included in the Will, which is the subject matter of the suit, viz., Item No. 7 was purchased by the father as per the document dated 4.6.1981 which was registered on 10.6.1981. The Will was written on 8.6.1981 and the same was registered on 10.6.1981. Therefore, on 8.6.1981, Samiayya Pillai had no absolute right over the properties covered under Ex.A3, since it was not registered on that date. The position being so, it is not known, how a property, which was intended to be purchased, was included in the Will, even before the registration of the document. If Samiayya Pillai had the intention of bequeathing the properties proposed to be purchased under Ex.A3, instead of taking the document in his name, he would have obtained the sale deed in the name of the plaintiff himself, which would avoid problem at least to the said property. The fact that one of the items was included in the Will, even before the registration of that document, would suggest that there is something fishy in the execution of the Will. As aforementioned, the father is not the heir of Ramakrishnan and the properties allotted to Ramakrishnan will not devolve upon him, on the death of Ramakrishnan. But those properties were also included in the Will, which further strengthen the suspicious circumstances, about the genuineness of the Will. Even it can be said, by some deceitful method, the plaintiff should have obtained the signature of Samiayya Pillai, in the Will, which will not amount to admitting the execution of the Will, bequeathing the properties, and that is why the first defendant has taken the stand that, the Will is not a genuine one or not acted upon.
29. It is the specific case of the first respondent that the plaintiff has not enjoyed the property, as owner at any point of time. After the death of the father, in pursuance of the Will, all the properties were divided in the panchayat under Ex.B.1. Under the original of Ex.B1, Ayyasami admitted that he is not claiming absolute right over the properties, in pursuance of the Will. Only through P.W.1, B.1 was marked. During the cross examination, P.W.1 would state that there was no panchayat after the death of the father when the dispute had arisen, which is falsified by the oral evidence of P.W.3, who admits that there was a panchayat. Thus, it is seen from Ex.B.1 as well as from the conduct of P.W.1 and from the oral evidence of P.W.3 that the Will though had come into existence, has not been given effect to, because of the fact that it was a genuine one.
30. It seems, the plaintiff has created a settlement deed in his favour, as if, his mother Kamakshi had executed the settlement deed, in respect of her properties on 9.9.1985 and had it registered at Thanjavur. It is the case of the first defendant that by impersonation, the settlement deed was registered and for that a criminal complaint was given by the mother and the plaintiff is facing the prosecution. This conduct coupled with other attending circumstances, suggest positively, that the plaintiff might have obtained the Will by some way or other, in order to grab the properties of his father, as well as his another brother, including the same surreptitiously, in the Will and that is why when there was a panchayat, he was forced to accept the unenforceability of the Will. The above unavoidable circumstances would suggest, that the 'Will' is not the voluntary act of Samiayya Pillai. Therefore, it is futile on the part of the plaintiff to contend, that the Will executed by the father (which is not proved) should be given effect to and he should be declared as the owner of the suit property.
31. Both the courts below have properly analysed the effect of Section 63 of the Indian Succession Act, as well as Sections 68 & 69 of the Indian Evidence Act, and reached an unerring conclusion, not warranting any interference by this Court. Therefore, the substantial question of law that as if the respondents have admitted the genuineness of the Will, relieving the plaintiff from proving the same will not arise for consideration. Further as concluded by me, the copier of the document will not come within the meaning of attesting witness also. Since the appellant has not admitted about the panchayat and for which item, he is entitled to declaration, question of granting decree, in respect of the item, for which the title is conceded also, does not arise for consideration.
30. For the foregoing reasons, I am unable to disturb the concurrent findings of the courts below, since both the courts below have well considered the case, from all point of view, assigning very good reasons, acceptable to this Court also. Hence, the substantial questions of law are answered accordingly.
31. The result therefore is the appeal is dismissed confirming the decrees and judgments of the courts below, with costs.