Madras High Court
M.S.P. Rajesh vs M.S.P. Raja And Ors. on 11 October, 1993
Equivalent citations: (1994)1MLJ216
JUDGMENT Thangamani, J.
1. The family of Rao Bahadur Senthilkumara Nadar of Virudhunagar is one of the richest in this part of the country. It owns extensive extents of plantations in Shervaroy Hills and Kerala besides other assets including a spinning Mill at Tuticorin. It is also having a very flourishing foreign trade of coffee. The family has also its business in Mangalore, Coimbatore, Bangalore and Virudhunagar. M.S.Periaswami Nadar is the eldest of the three sons of Senthi Kumara Nadar. There was a partition among Senthi Kumara Nadar and his sons under Ex. B-76 dated 9.4.1941. Appellant Rajesh and first respondent Raja are the sons of Periaswami Nadar. The father and two sons in turn divided their family properties under Ex. B-2, dated 6.9.1954. Periaswami Nadar died on 21.1.1955. Under Ex. A-2, dated 11.10.1956 appellant, first respondent and their mother Thangammal partitioned the properties left by Periaswami Nadar. Schedule 'A' of this partition deed relates to the properties allotted to the mother. They include suit items 1,12,13 and 14. Item 1 is a house known as Thanga Mahal Maligai in Virudhunagar. This bears Door Nos.93 to 96 of Ramamoorthi Road and measures 460' east-west and220' north-south. Item 14 bearing Door No. 12-A of Rajaji CCRoad is the rear portion of Thanga Mahal Maligai. Periaswami Nadar and Thangammal were residing in Thanga Mahal Maligai. The first respondent is also residing in the same house with his family. In 1956 they purchased Cauvery Peak Estate 20 Km. away from Yercaud. Appellant Rajesh is residing in the bungalow in that Estate. He also claims that he and his family members used to stay in the upstair portion of Thanga Mahal Maligai whenever they visited Virudhunagar. The first respondent also does not dispute the fact that the drawing room and two bed rooms in the upstairs are kept for common use. Both the brothers were taking part in public life also. Appellant Rajesh was the President of Panchayat Board, Yercaud and became the President when it became Panchayat Union. He was also the President of Shervaroy Plantations Association and of Yercaud Club. Respondent Raja was the Chairman of the Virudhunagar Municipality from 1959 to 1969. Disputes arose between the brothers in April, 1974. Civil suits were instituted in the Courts at Salem and Ramnad. There was even a complaint that on 5.7.1974 appellant tried to shoot the first respondent twice in Yercaud. Well-wishers of the family intervened to bring about reconciliation between the brothers. Both of them agreed for an interim arrangement as suggested by Thiru Rajaram, former Minister, Thiru Sankara Mudaliar a leading lawyer of Salem and Baskar the first cousin of the brothers. Pursuant to the same certain Estates were left in the management of the first respondent. Later on the first respondent expressed his inability to continue the arrangement. On 1.2.1975 the first respondent passed Ex. A-39 letter on the appellant stating that he is unable to be away from Virudhunagar since he has a lot of personal interest and public activities. He realises that the appellant should continue to be in the management of all the Estates as before not only to have efficient administration but also to discharge the liabilities to the banks and to continue the foreign trade in coffee and other commodities and maintain the reputation of their firms and business. He has put the appellant in possession of the estate that were given to him for his management as per the interim arrangement. While the appellant left for London on 13.5.1975, the first respondent also went abroad on 4.6.1975. The first respondent came back on 12.6.1975. The appellant returned to India on 19.7.1975. In the meanwhile, mother Thangammal had passed away on 19.6.1975 at Virudhunagar.
2. In this background appellant instituted the present suit on 25.1.1978 for partition and separate possession of his half share in thesuit properties and for rendition of accounts. As we have already stated suit items 1 and 14 cover Thanga Mahal Maligaiwhilesuit item 2 isa theatre known as Central cinema. Items 3 to 13 are small houses and shop leased out to tenants. Items 15 and 16 relate to gold jewels, silverware and furniture of the mother. The second respondent is a lessee.of item 2 cinema theatre. Appellant has claimed half share in these items on the basis that his mother died intestate.
3. The first respondent pleaded in his written statement that items 15 and 16 do not belong to the estate of Thangammal and instead the two sons of the appellant and Ramesh Raja his son are the owners of the same. He also claimed that Thangammal while she was in a sound and disposing state of mind executed Ex. B-16 her last Will on 14.6.1975 bequeathing items 1 and 14 to be enjoyed by him without any right of alienation and the vested remainder in favour of his son Ramesh Raja. And she also directed that the other properties are to be enjoyed by both the brothers in equal moieties. He was appointed as the executor of the Will. He is always ready and Willing to give the appellant his share in item 2 to 13 after discharging thedebts and paying theestate duty and other taxes as enjoined in the Will. He has to render accounts only in respect of these items and not in respect of items 1 and 14.
4. There upon, in I.A. No. 523 of 1978 the appellant got the plaint amended on 28.11.1978 by including certain further allegations. He averred that Thangammal was ailing and unconscious and so she could not have executed the Will with the necessary mental capacity. Besides, there is no reason for depriving him of his lawful share in the residential houseand the disposition is unnatural.
5. In the additional written statement filed on 19.4.1979 the first respondent alleged that the appellant was aware of the execution of the Will and he has not chosen to disclose the same in the plaint.
6. The plaint was again amended in I.A. No. 67 of 1980 on 5.2.1980 whereunder the appellant disputed the entire Will and the disposition covered by it. In order to avoid unnecessary contentions, the third respondent son of the first respondent was impleaded as a party to thesuit in I.A. No. 1100 of 1979, dated 24.10.1979.
7. As per the amendment in I.A. No. 198 of 1981 dated 16.11.1981 the appellant alleged in the plaint that the Will appears to have been brought about under suspicious circumstances after the death of the mother. Even assuming without admitting that the signature is true, one blank paper containing the signature must have been utilised for fabricating the alleged Will.
8. In the additional written statement dated 16.11.1981 the first respondent pleaded that the original Will was shown to the appellant by him when he met him at Virudhunagar shortly after his return from foreign trip.
9. The trial court found that the Will is genuine and the appellant is entitled to get his half share in items 2 to 13 alone after the Executor discharged the liabilities as enjoined in the Will. And ultimately it dismissed the suit with cost. And this appeal is directed against the said decree and judgment.
10. As early as in Harmes v. Hinkson (1946) 2 M.L.J.156 (P.C.), the Privy Council had laid down that the onusprobandi lies in every case upon the party propounding a Will and he must satisfy the conscience of the court that the instrument so propounded is the last Will of a free and capable testator. If a party writes or prepares a Will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed and it is judicially satisfied that the paper propounded does express the true Will of the deceased. The onus of proof may be increased by circumstances, such as unbounded confidence in the drawer of the Will, extreme debility in the testator, clandestinity, and other circumstances which may increase the presumption even so much as to be conclusive against the testator. The adverse presumption may be rebutted. If no evidence is given by the party on whom the burden is cast, the issue must be found against him. But onus as a determining factor of the whole case can only arise if the tribunal finds the evidence pro and con so evenly balanced and it can come to no such conclusion. But if the tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it, and need not be further considered. The conscience of the Court must be satisfied by the removal of doubt from the judicial mind. Whether or not the evidence is such as to satisfy the conscience of the tribunal must always be, in the end, a question of fact.
11. In Venkatachala Iyengar v. Thimmajamma 1959 S.C.J. 507, the Apex Court has pointed out 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. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters; However, unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator, who has already departed the world cannot say whether it is his Will or not, and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills, the court Will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free Will. Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. There may however be cases in which execution of the Will may be surrounded by suspicious circumstances. In such cases, the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last Will of the testator.
12 Let us now proceed to consider how far the first respondent is successful in discharging the initial onus on him. Besides himself he has examined D.W. 2 Rajaram one of the attestors to prove the Will. The evidence of the first respondent as D.W. I is to the effect that from thejnception he is residing in Thanga Mahal Maligai. His parents were also living with him. The appellant is always residing at Yercaud in the Estate Bungalow there. After the demise of his father this witness and his wife and children were looking after mother Thangammal. The mother was never under the careand protection of theappellant. On 12.6.1975 when he returned from abroad, she expressed her desire to execute a Will in respect of her properties. She told him that the entire Thanga Mahal Bungalow, other buildings surrounding the same, furniture, silver and gold items and all movables should be enjoyed by him during his life time and thereafter they should go to his son Ramesh Raja the third respondent herein. And he and his brother should take the remaining properties in equal moities. She also directed that since this witness was residing at Virudhunagar, he should arrange to discharge the debts due by her to M.S.P. Nadar and sons and pay the Estate duty and other tax arrears from the assets left by her. At her instance he arranged to bring Advocate Thangamani to Thanga Mahal Maligai from Madurai at 4.00 p.m. on 13.6.1975. In his presence she apprised Thangamani of her intention. Thangamani took notes of what Thangammal told him. He left for Madurai statingthat he would bring thedraft of the Will on the next day. Accordingly he came back at 11.00 a.m. on 14.6.1975. He read over the draft to the mother in the presence of this witness. He explained certain clarifications asked for by Thangammal. Thereafter the latter directed Thangamani to preparea will in terms of that draft. Then Thangamani handed over the draft and letter head of the mother to D.W. 3 Natarajan and arranged to get the Will typed. At about 2.00 p.m. on that day, D.W. 3 Natarajan brought the typed matter and the draft. Thangamani compared these two. At that time D.W. 2 Rajaram also arrived on the scene. This witness had sent a cdr and brought him as per earlier arrangement. In the presence of all of them Thangamani read over the Will to Thangam-mal. The latter told them that the contents were correct. She wanted to know where she should sign. Thangamani put an "x" mark on the last page and wanted Thangammal to sign at that place. Accordingly she signed there. Ex. B-16 is the said Will. Advocate Thangamani D.W. 2 Rajaraman, D.W. 3 Natarajan and this witness saw Thangammal affixingher signature in the Will. Thangamani signed as the first attestor to this Will which was witnessed by Thangammal. D.W. 2, D.W. 3 and this witness. Including the mother all of them saw D.W. 2 Rajaraman attesting the Will as second witness. Then Thangamani handed over the Will to the mother. He took away the draft and notes with him. D.W. 1 Raja further swears that his mother was hale and healthy and in a sound state of mind while she executed the Will.
13. D.W. 2 Rajaram is a Chartered Accountant by profession. He swears that in 1982 while giving evidence in court his annual income was rupees thirty thousand to forty thousand. He was the audio to. of appellant Rajesh from 1955 to 1978. Since the accounts of the appellant were transferred to Salem, some other Auditor in Salem is in charge of them now. He also speaks about his presence in Thanga Mahal Maligai on 14.6.1975 along with late Thangamani and D.W. I at the time of execution of Ex. B-16 Will by Thangammal. According to him, in the previous evening D.W. 3 Natarajan rang him up and informed that on the next day he had to keep himself free from other engagements so that he could come and attest the Will to be executed by Thangammal. On 14.6.1975 he was informed over phone at Twelve o' clock that car would be sent at 2.00 p.m. And he came to Thanga Mahal Maligai in that car. When all of them were seated, Thangamani read over the Will to Thangammal. Thangammal said that the contents were correct. She asked him where she should sign. Thangamani put 'x' mark on the last page and gave it to D.W. 3 Natarajan. D.W. 3 Natarajan placed the same before Thangammal and the latter signed Ex. B-16 Will. This witness, late Thangammal, D.W. 3 Natarajan and D.W. 1 Raja saw Thangammal affixing her signature in the Will. Then Thangamani signed as first attestor which was witnessed by Thangammal, D.W. 3 Natarajan, D.W. I Raja and this witness. Thereafter, this witness put his signature as the second attestor. This was Seen by others there including Thangammal and Thangamani.
14. In the cross-examination of D.W. 2 Rajaram nothing substantial has been elicited as to why his testimony should not be acted upon. No doubt, he admits that even now he continues to be the Auditor of the first respondent and his family members. All of them are income-tax assessees. Learned Senior Counsel for the appellant assails the evidence of this witness mainly on the ground that he is a person who is very much interested in the respondent. In his capacity as the auditor of first respondent's family, all the family members have reposed confidence on him. Besides he came, he attested and he left immediately. He does not know other details. However, we are mainly concerned with the execution of Ex. B-16 Will and the credibility of this attestor witness cannot depend either upon the duration of his stay at Thanga Mahal Maligai on that afternoon or his knowledge about thedetailedcontentsofWill.lt is significant to note that D.W. 1 Rajesh does not dispute the fact that D.W. 2 Rajaram was his family auditor till 1975. He concedes in his evidence that his accounts for the year ending 31.3.1975 were sent to Income Tax Office in 1977 through the auditor. Till that date D.W. 2 Rajaram was looking afterall the affairs relating to his accounts. Exs. B-84 to B-91 are the letters written by him to D.W. 2Rajaram in this connection. In Ex. B-84 dated 7.1.1978 he has appreciated the co-operation of D.W. 2 Rajaram with the new auditor in regard to the income-tax affairs of the appellant. Ex. B-89 is the letter dated 31.1.1978 addressed by the appellant to D.W. 2 Rajaram enclosing a copy of the letter received by him from the Income-tax Office. Ex. B-85 is the letter dated 8.5.1978 written by the appellant to D.W. 2 Rajaram enclosing a cheque for a sum of Rs. 1,000 towards his fees for the services rendered for the assessment year 1975-76 in his income-tax cases. While appreciating the work done by the Auditor in income-tax matters appellant has apologized for the delay in sending the cheque. In Ex. B-90 the letter dated 30.1.1979 the Income-tax Officer has been informed by the appellant's office at Cauvery Peak, Yercaud, that the appellant would be returning from abroad only on 17.2.1979 and a copy of this letter has been marked to D.W. 2 Rajaram. In Ex. B-91, dated 31.1.1979 D.W. 2 Rajaram has been requested by theappellant's office to draft a reply to the Income Tax Department. In Ex. B-86 the appellant has written to the Central Board of Direct Taxes, New Delhi requesting them to transfer his file to Salem and a copy of this letter also has been marked to D.W. 2 Rajaram. In Ex. B-87 dated 3.4.1979 the appellant has written to D.W. 2 Rajaram acknowledging the statements sent by him in the case of the estate oflateSrimathiThangammal for the period 11.8.1975 to 31.6.1976. Ex. B-88 is another letter written to the Auditor by the appellant on 3.4.1979 appreciating his co-operation with his new auditor Venkatasubbu of Coimbatore in all his tax matters. This correspondence would indicate that the relationship between the two was nothing but cordial. So it is unlikely that a person of D.W. 2's association and involvement in the family of M.S. Periaswami Nadar for such a long number of years would have gone to the extent of colluding with the first respondent in fabricating Ex. B-16 Will and coming forward as a witness to forswear against the interest of the appellant. He has promptly denied the suggestion that he is deposing falsely since he is interested in the first respondent.
15. Ex. B-74 is the letter written by the first respondent to the Income-tax Officer on 19.9.1977 in connection with Income-tax assessment of Thanga-mani for the year 1975-76. D.W. 2 Rajaram admits that he has prepared all the income-tax and wealth-tax return of Thangammal. In this letter he has described first respondent M.S.P. Raja as legal heir of late Thangammal. Learned Senior Counsel for the appellant commented that the Auditor has not chosen to describe the first respondent as Executor of Ex. B-16 Will left by Thangammal. Had the existence of the Will been true, he would not have shown the first respondent as merely legal heir in this letter. In support of his argument he pointed out the evidence of D.W. 2 Rajaram that he is aware of the difference between dying intestate and testate. There is no substance in this argument. Even as per the evidence of appellant he became aware of the existence of Ex. B-16 Will on 2.6.1976 from Advocate Thangamani. While so the manner in which the first respondent is described in Ex. B-74 is of little significance.
16. D.W. 3 Natarajan joined M.S. Periaswami Nadar in 1974. He was working in Virudhunagar Branch of M.S.P. Nadar and sons. He speaks about the first respondent informing him on 12.6.1975 about his mother's desire to execute a Will and this witness contacting Advocate Thangamani over phone to go over to Virudhunagar on the next day as per the direction of D.W. I Raja. He also says that he rang up D.W. 2 Rajaram and told him to be present on the next day at the residence of Thangammal to attest the Will. He narrates in detail about the presence of Thangammal, Advocate Thangamani, appellant, first respondent and D.W. 2 Rajaraman in the bungalow of Thangammal and the preparation, execution and attestation of the Will by the persons concerned. He is functioning practically as the agent of first respondent in all thecases relating to the appellant and first respondent in the Courts of Madurai and Ramnad from 1977 onwards. Admittedly he is conducting the present litigation on behalf of the first respondent. Even if we are to take that the testimonies of D.W. I Raja and D.W. 3 Natarajan are interested in nature, the evidence of D.W. 2 Rajaraman establishes beyond the possibility of any doubt that Thangammal executed Ex. B-16 Will while she was in a sound and disposing state of mind.
17. In this connection, it is necessary to refer to Section 63(c) of the Succession Act which runs as under:
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 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.
Section 68 of the Evidence Act, 1872 provides that if at document is required by law to be attested it shall not be used as evidence until one of the attesting witnesses 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. This Section 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 Succession Act. Even if one witness, who is called, is able to depose to all that is required by Section 63(c) of the Succession Act, for the valid execution of a Will, that would suffice for Section 68 of the Evidence Act. Section 68 of the Evidence Act does not in any manner change or alter the requirements to be proved by Section 63(c) of the Succession Act. A reading of Section 63(c) of the Succession Act with Section 68 of the Evidence Act, establishes that a person propounding a Will has to prove that the Will was duly and validly executed and that should be done by not merely establishing that the signature on the Will was that of the testator, but also that the attestations were made in the manner contemplated by Clause (C) of Section 63 of the Succession Act. It is no t necessary under Section 68 of the Evidence Act, to examine both in all the attesting witnesses. There is no dispute that Advocate Thangamani, the other attestor to Ex. B-16 had died on 16.10.1981. And in our view the disinterested testimony of D.W. 2 Rajaraman amply satisfies the requirements of law referred to above.
18. The challenge of learned senior counsel for the appellant of Ex. B-16 Will is two fold. His first contention is that Thangammal had no mental capacity to execute the Will. In this connection the appellant P.W. 1 states that his mother was aged about 70 or 72 when she died on 19.6.1975. She was suffering from diabetes and blood pressure for a number ofyears. Often she fell into coma. Before he went abroad on 13.5.1975 he visited his mother at Virudhunagar on the evening of 12.5.1975. At that time she was bed-ridden in coma stage. She could not identify him. Significantly enough, excepting the ipse dixit of this witness on the health of his mother, he has not produced any other material to substantiate his version. He admits in cross-examination that between July, 1974 and May, 1975 he had seen his mother thrice and at that time the mother had asked him why heand his brother were quarrelling with each other. This gives the lie direct to the testimony of P.W. 1 that his mother was practically unconscious and unable to know what was happening around her for some period prior to her demise. Besides Exs. A 40and B-97 the draft lease deeds dated 21.10.1974 between second respondent Baskaran and Thangammal relating to suit item 2 cinema theatre bear the signature of Thangammal. Ex. A44 dated 14.8.1973 and Ex. B-65, dated 22.1.1975 are powers executed by Thangammal in favour of D.W. 2 Rajaram. Exs. B-64 and B-66 are incometax returns for the years 1974-75 and 1975-76 relating to Thangammal which contain her signature. Ex. B-98dated'4.8.1973, Ex. A-5 dated 3.5.1974, Ex. A-41 dated 11.11.1974, Ex. A-42 dated 26.7.1974 and Ex. A-43 dated 18.6.1974 are communications addressed by Thangammal to Income-tax Department. That was communicating with the Incometax department and had given power of attorney of D.W. 2 auditor during the years 1973 to 1975 rule out the possibility of her being bed ridden and in a state of coma for number of years, prior to her death.
19. D.W. 6Dr.MuthuswamyandD.W. 7Dr.Mohan are Medical Practitioners of Virudhunagar. D.W. 6 Dr. Muthuswamy states that he is the family Doctor since the days of Senthi Kumara Nadar. After D.W. 7 Dr.Mohan who is a relative of the family came to practice, Thangammal used to get treatment from him also. In the early hours of 19.6.1975 D.W. 6 Dr.Muthuswamy received a phone message that her condition was serious. When he rushed to Thanga Mahal he found that she was suffering from chest pain. Without responding to artificial respiration treatment she died. Ex. B-75 is the certificate issued by him stating that she died on account of coronary thrombosis. The evidence of D. W.7Dr.Mohan is to theeffect that Thangammal is the elder sister of his mother. She used to come to his clinic and take treatment._She had visited his clinic even on the evening prior of her demise. At that time she was normal. He did the routine check up on her. On the next morning on receipt of message he want to Thanga Mahal in the car sent by Thangammal. When he went there, D.W. 6 Dr.Muthuswamy was also there. He found Thangammal was dead. According to him, Thangammal was never in a state of semi-consciousness prior to her demise. Appellant as P.W. 1 admits that these two were his family Doctors. The only suggestion made to these two Doctors during their cross-examination is that they are deposing falsely at the instance of the first respondent. It is pertinent to note that D.W. 7 Dr.Mohan is the mother's sister's son of both the appellant and the first respondent. No convincing reason has been shown as to why these two Doctors should speak falsehood about the health of Thangammal. D.W. 7 Dr.Mohan also states in his evidence that when she visited his clinic on the day prior to the demise she told him that she had proposed to go to Courtallam. Her health was in a fit condition to undertake the trip. The evidence of these two Doctors also improbablises the claim of the appellant that Thangammal was not in a sound disposing state of mind at the time of the alleged execution of her last Will Ex. B-16.
20. The stand taken by the appellant in his plaint is that when heleft Virudhunagaron 12.5.1975 his mother was not conscious and could not even identify him. But he admits in cross-examination that it never occurred to him to take his mother to big hospitals like C.M.C., Vellore and get her treated there. Prior to 12.5.1975 he had seen his mother in coma stage twice or thrice. The first occasion she fell into coma was in 1960. D.W. 6and D.W. 7 Doctors never got Thangammal admitted as an in-patient in their Nursing Homes and treated her. Subsequent to 1960 after she was laid up with coma she had executed several settlement deeds and other documents by going over to Sub-Registrar's Office. She had filed a number of income-tax and wealth-tax returns. She had visited Yercaud and Courtallam during seasons. On 1.4.1971 she had been to Palakad and got registered Ex. B-12 settlement deed. After he left for England on 13.5.1975 he never enquired about the health of his mother either from the first respondent or from his relations in Virudhunagar. When he stayed on the night of 12.5.1975 at Thanga Mahal, Nagarathina Nadar, Dharumar who are the brothers of Thangammal and Lakshmi Ammal who is the sister of Thangammal and other close relations did not come to see the mother. These factors also make us difficult to accept the claim of the appellant that Thangammal was not in command of her mental faculties prior to her death and could not have made the dispositions with the full knowledge and consent of the implications of Ex. B-16 Will.
21. Thiru T.R. Mani, learned senior counsel for the appellant has next placed before us these factors as suspicious circumstances attendant in the coming into existence of Ex. B-16 Will:
(1) The Will has been typed on three old letter heads instead of triick white papers; the letterhead papers are worn out and brown with age, the quality of the paper is such that it is unlikely to be used in a big estate like this. A solemn document like Will which is going to be a title deed of a valuable property Will not be generally written on a low quality paper like this.
(2) In the last page of Ex. B-16 the typing is not uniform and larger space is left between the lines in the last few lines.
(3) The interspace in typing in the last sheet different from other pages.
(4) Thangammal's signature is found against 'x' mark and the signature itself is very much below the typing.
(5) The signature of the two attestors and their subscription are found crammed at the bottom of page 3 and the first attestor's subscription "now at Virudhunagar" is an interlienation; Very little space is left for two people to sign in that place.
(6) There is considerable space between the end of typed portion and the signature of the testator.
(7) Normally a Will is not type written.
(8) The person who has typed the Will has neither attested nor spoken about it. And even his name is not disclosed.
(9) Non-disclosure of the existence of the Will at the earliest point of time.
(10) Though the second respondent is a tenant of the Cinema Theatre described in Item 2, he happens to be a relation and not a stranger to the family, yet he was not asked to attest at Will.
(11) Mutation of names has been effected in the Municipal Registry in a hurried manner.
(12) The payments said to have been made to the first attestor for his two taxi trips from Madurai to Virudhunagar and back are not shown in the accounts.
(13) The instructions chit and the draft of the Will referred to in the evidence are not produced.
(14) The attestors are interested persons.
(15) The attestation of Advocate Thangamani appears to be a later addition.
(16)The first respondent who is the their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.
propounder of the Will and his family members have been given a lion's share in the estate of Thangammal.
(17) The propounder has taken active part and was instrumental in bringing about the Will.
(18) The appellant is given only a paltry share.
(19) There is no obvious reason to deviate from the dispositions made in the previous Will. There it is the appellant who was appointed executor and the bequest was equal between the brothers.
(20) The mother was having throughout equal affection to both her sons and the bequest is unnatural.
(21) Ex. B-16 Will dealing with enormous properties was not registered, though the testator is stated to have been alive for five days after the execution of the Will and there is a Registration Office at Virudhunagar.
(22) There is no explanation as to why the Will was not signed by Thangammal at the bottom of each page even though the family lawyer is alleged to have been present at the time of execution.
(23) There is no need or justification for appointing an executor for the reasons given in Ex. B-16. Payment to M.S.P.Nadar and Sons is onlya book adjustment. There was no Incometax arrears by Thangammal as alleged. Estate duty paid under Ex. B-52 does not require any executor.
22 Learned Senior Counsel for appellant also draws our attention to these cases of this aspect. In Ramachandra Rambux v. Champabai , it has been held: (i) 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, (ii) It is necessary for the propounder to satisfy the court about the genuineness of the Will by the removing all suspicions which naturally flow from the various circumstances.
23. Seth Beni Chand v. SmtKamla Kunwar , has laid down that the onusprobandi lies in every case upon the party propounding a Will, and the must satisfy the conscience of the court that the instrument so propounded is the last Will of a free and capable testator. Where the circumstances surrounding the execution of\the Will are shrouded in suspicion, it is the duty and function of the propounder to remove that suspicion by leading satisfactory evidence, and by offering an explanation of suspicious circumstances which can satisfy a prudent mind.
24. In JaswantKaur v. AmritKaur , it is held : (a) In cases where the execution of a Will is shrouded in suspicion, its proof ceases to be a simple Us between the plaintiff and the defendant. What generally is an adversary proceeding becomes in such cases a matter of the court's conscience. The presence of suspicious circumstances makes the initial onus heavier and, therefore, in cases where the circumstances attendant upon the execution of the Will excite the suspicion of the court the propoundter must remove all legitimate suspicions before the document can be accepted as the last Will of the testator, (b) A Will has to be proved like any other document by applying the usual test of the satisfaction of the prudent mind, (c) Since Section 63 of the Succession Act requires a Will to be attested it cannot be used as evidence until at least one of the attesting witnesses is examined, if available, (d) Unlike other documents the Will speaks from the death of the testator and, therefore, the maker of the Will is never available for deposing as to the circumstances in which the Will was executed. That circumstance introduces a certain amount of solemnity in proof of testamentary instruments.
25. Kafyan Singh v. Chhoti , has held that a Will is one of the most solemn documents known to law. The executant of the Will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the Will. It must be stated that the factum of execution and validity of the Will cannot bedetermined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses ,and disengage the truth from falsehood the court is not confined only to there testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itselfs. It would be also open to the court to look into surrounding circumstance as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.
26. Regarding principles governing the proof of a Will one of us (Srinivasan, J.) has pointed out in Vyjayanthimala Bali v. Rattan Chamman Bali (1990) 1 L.W. 27, that the Supreme Court indicated in Surendmpal's case , that the suspicious circumstances surrounding the execution of the Will would be. (a) Where the signature is doubtful, (b) the testator is of feeble mind or is overawed by powerful minds interested in getting his property, (c) Where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair and (d) Where there are other reason for doubting that the dispositions of the Will are not the result of the testator's free-Will and mind. It was held that in such cases, where there may be legitimate suspicious circumstances, they must be reviewed and satisfactorily explained before the Will is accepted.
27. The appellant does not seriously dispute the signature of Thangammal in Ex. B-16 Will. According to him, either the signature is forged or by utilising her signature obtained on a blank letter head of hers, the Will has been concocted with the assistance of family Lawyer Thangamani and Auditor D.W. 2 Rajaraman,who are close friends of the first respondent. In para.ll(c) of the plaint, which was inserted subsequentlyby way of amendment after the inspection of the original Will by him, the stand taken by the appellant is that even assuming without admitting that the signature appearing in the Will is true, one blank paper containing the signature must have been utilised for fabricating the Will. There-is no express repudiation of the genuineness of the signature of Thangammal in the Will. Only in the witness box P.W. 1 states that the signature in Ex. B-16 Will is not that of his mother. In cross-examination also he reiterates that somebody has forged the signature of his mother in that Will. However, the appellant has not taken any steps to get the signature in Ex. B-16 Will compared with that of the admitted signature of Thangammal by any handwriting expert so as to disprove the evidence of D.Ws.l and 2.
28. Learned Senior Counsel for the appellant urges that there is no obvious reason for Thangammal to disinherit her eldest son in respect of her most valuable house property. He further submits that the first respondent was throughout living with the mother and took a leading part in bringing about Ex. B-16. He who propounds the impugned Will Ex. B-16 claims the bulk of the benefits under it for himself and his son. So the burden is very heavy on him to establish its truth and genuineness and due execution by the mother out of her own free Will and volition and in a sound disposing state of mind. SaratKumah Bibi v. Raj Shanthi Chand A.I.R. 1929 P.C. 45, lays down that when the writer of a Will has taken a very active part in the preparation of the Will under which he gets a substantial advantage, the propbunders of the Will must prove that the testator was aware of the contents of the Will. The decision in G. Thataigh v. Venkata Subbaiah , is also the authority for the position that if 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. So there is no doubt that the duty cast upon the appellant in this connection is onerous.
29. However, a careful scrutiny of the evidence on record would reveal that there is nothing unnatural in the bequest made by Thangammal under Ex. B-16 Will. P.W. 1 admits that under various settlement deeds Exs. B-3, B-5 to B-10, B-12, B-13 and B-14 Thangammal has given properties to the families of both her sons in such a manner that they get more or less equal share in her entire estate. As we have already seen, the brothers were only on cordial terms when Ex. B-16 came into existence. Admittedly the appellant was residing in the bungalow in Cauvery Peak Estate which is 20 Km. away from Yercaud. He used to visit Virudhunagar only occasionally. While he is put up in the Estate Bungalow since 1956, the first respondent is all along residing only with his mother in Thanga Mahal Maligai at Virudhunagar. It does not appear he has any other house of his own anywhere. And even as per the particulars of valuation given in the plaint the market value of all the suit items covered by Ex. B-16 Will come to Rs. 5.70,500. The value of items including Thanga Mahal Maiigai (Items 1 and 14) given to the first respondent comes to Rs. 3.91,250 while the items bequeathed to the family of appellant works out to Rs. 1.79,250. And the difference in value is only Rs. 2,12,000. Considering the enormity of the estate left by Thangammal including the properties settled by her on the family members of her two sons, it cannot be said that she has made any invidious distinction between her sons in making the bequest of Thanga Mahal Maiigai to her younger son. Besides, it has to be borne in mind that Thangammal had distributed all her income yielding lands and houses equally to her two sons. And, what Thangammal herself states in the Will is self-explanatory.
So it cannot be said either that the bequest is unnatural or that Thangammal has disinherited her elder son in toto and preferred the first respondent in making the bequest under her last Will. Instead she has given one additional property to her younger son. And it cannot be said that it is so outrageous an act.
30. One other argument advanced by learned Senior Counsel for the appellant is that under herearlier Wills Thangammal had divided her estate in equal moities between hersons. The present disposition makes a deviation from the bequest made therein for no obvious reason. Ex. B-11 dated 2.9.1967 is the only earlier Will exhibited in this case. This discloses that she has executed Wills and codicils earlier and cancelled them. Under this Will the appellant has been appointed executor and failing him the first respondent is named. In this Will she has given her 1/4 share in Karapara Estate measuring 1148 acres to the five children of the first respondent. And she has given the residue of her estate equally to two sons of the appellant and first respondent. So it cannot be said that under Ex. B-16 Will she has made a deviation from the dispositions made in the earlier Will to the disadvantage of the appellant.
31. Learned Senior Counsel for the appellant next draws our attention to the fact that the impugned Will has not been registered and the first respondent has not shown any reason for the failure to register the Will, even though Thangammal happened to live for five days after the coming into existence of the Will. It is true that registration would go a long way to dispel the doubt as to the genuineness of the Will. But where the execution is proved by cognet and acceptable evidence, the court should not disbelieve the Will merely because it is not registered. And we have already seen that in this case the execution has been duly established by the convincing testimony of D.W. 2 Rajaraman.
32. Exs. B-17, B-19 and B-40 are the copies of Ex. B-16 Will containing the attestation dated 23.6.1975 of D.W. 4 Lakshminarayaman, the then Municipal Commissioner of Virudhunagar. D.W. 4 states in his evidence that after comparing the original Will produced before him he attested these copies on 23.6.1975. On 7.8.1975 the first respondent presented Ex. B-18 application in Virudhunagar Municipality to effect mutation in the Municipal Registry in respect of the suit house as per the terms of the Will left by his mother. He had enclosed Ex. B-19 attested copy of the Will along with this application. This bears the date seal of Municipality as 7.8.1975. Exs. B-20 to B-28 are correspondence dated 14.8.1975 sent by Virudhunagar Municipality to the first respondent in this connection marking copies to appellant. D.W. 4 stated that he had passed orders on this application on 14.8.1975 for change of registry. D.W. 5 Boopalan was the Revenue Officer of Virudhunagar Municipality in 1975. He speaks about the receipt of Ex. B-18 application from the first respondent and his placing the same before the Commissioner for orders. It is the evidence of the appellant as P.W. 1 that he did not receive any communication from Virudhunagar Municipality before the change of registry in respect of the suit house. And there is no material to hold that any notice was served on the appellant. The hurried manner in which the Municipal Registry has been changed from the name of Thangammal even without notice to P.W. 1 is relied on by the appellant as one of the suspicious circumstances which improbablises the due execution of Ex. B-16 Will. It is quite possible that D.W. I who is a former Chairman of the Virudhunagar Municipality was able to prevail upon these two officers and managed to change the registry without proper service of notice on appellant within a very short period after the death of Thangammal. However we do not think that this hurried transfer of registry can in any way affect the credibility of the Will in any manner. Instead the production of Ex. B-16 Will in the Municipal Office on 23.6.1975 within four days of the death of Thangammal only strengthens the claim of the first respondent that Ex. B-16 is a genuine document.
33. As we have already seen, Advocate Thangamani is one of the attestors to Ex. B-16 Will. He died on 16.101981 before commencement of trial. P.W. 1 states in his evidence that on 2.6.1976 he met Thangamani in a marriage house at that time Thangamani enquired whether he could not settle his dispute with his brother. He told Thangamani that the first respondent had sent a list containing 'A' and 'B' Schedules in respect of their properties and he was agreeable to come to an understanding on the basis of that list. Thangamani wanted this witness to send the list to him so that he could take up the matter with the first respondent. At that time Thangamani casually informed him about the existence of Ex. B-16 Will. Neither this witness asked Thangamani nor the latter apprised him of the details of the Will. On 3.6.1976 he wrote Ex. B-49 letter enclosing the list of properties. In this letter P.W. 1 has asked Thangamani whether his mother had signed the Will in his presence. It is significant to note that in the list annexed to Ex. B-49 letter Thanga Mahal Maligai is shown as one of the items to be divided between the brothers as per the proposal of the first respondent. On the basis of this, learned Senior Counsel for the appellant argues that had the Will been true, the first respondent would not have shown Thanga Mahal Maligai as one of the items to be shared between the brothers. But significantly enough P.W. 1 admits in his evidence that the original list attached to Ex. B-49 is with him. This list covers the properties settled by his mother in favour of her grand children, the first respondent and his wife. Evidently the original list would have gone a long way in support of the appellant's claim that there was a proposal ignoring the Will. But the appellant has not chosen to produce this original list. Evidently in the absence of the original list, no importance could be attached to the Annexure to Ex. B-49.
34. Ex. B-50 purports to be the office copy of the Ietterdated7.6.1976addressedtotheappellantby Advocate Thangamani in reply to Ex. B-49 letter. This letter reads that ...Myself and T.R.Rajaraman, Chartered Accountant, Virudhunagar were present when your mother signed the Will....
This is relied upon by the first respondent to prove the genuineness of Ex. B-16 Will. However this letter does not contain the signature of Thangammal. It bears only the initial. And this initial has not been identified byanybody as that of deceased Thangamani. Even the written statement makes no mention of this letter. The only evidence on this document is that of D.W. I Raja who states that in June, 1976 Advocate Thangamani rang him up and spoke about his meeting the appellant at his residence at Madurai and the latter addressing a letter to him on 3.6.1^76 and his replying. D.W. I further deposes that Thangamani also expressed his desire to talk to him in connection with that letter. Accordingly he met the Advocate. At that time Thangamani showed him Ex. B-49. Thangamani asked his views regarding the list annexed to Ex. B.49. He told Thangamani that he did not hand Over the original of the said list to the appellant. Learned Senior Counsel for the appellant rightly draws our attention to the fact that Exs. B-49 and B-50 have been produced in Court by the Clerk of Advocate Thangamani. However, the said Advocate's Clerk has not been examined. In theabsence of any evidence regarding the identification of the initial of Thangamani in Ex. B-50, this document serves no purpose and no importance could be attached to the aforesaid version of D.W. lalso.
35. As per the appellant only when he met Advocate Thangamani on 2.6.1976 at madurai he came to know about the existence of the Will. Whereas D.W. I Raja swears that subsequent to the death of his mother he met the appellant for the first time on 23.7.1975 at Bangalore. Both of them had been there in connection with Coffee Board auction. When he was conversing with his brother, he revealed to him the leaving of the Will by the mother and discussed with him further steps to be taken. At that time suit item 2 Central Cinema had been leased out to second respondent Baskaran as per Ex. B.38. The licence, for the Cinema was also standing in the name of the lessee. On the terms of Ex. B-16 Will, the appellant and the first respondent had become co-owners of the theatre. They had to get the 'C Form Licence changed in the name of either the appellant or the first respondent. So on 25.7.1975 the appellant sent a "no objection certificate" to him from Yercaud. He forwarded a copy of Ex. B-16and the "noobjection certificate" to the Collector ofRamnad for change of licence. The appellant though admits his visiting Bangalore on 23.7.1975 for Coffee Board auction, denies that he was informed about the Will by his brother and later on he had sent his willingness for change of C Form Licence in his letter to the first respondent. Ex. A-8 is the office copy of the letter dated 19.7.1975 addressed to the appellant by M.S.P. Nadar and Sons seeking the signature of the appellant in connection with the transfer of the Central Cinema theatre licence. Though P.W. 1 pretends that he does not know whether he had received the original of Ex. A-8 letter, he admits that the words "sent on 27.7.1975" and the initial therein are his. He further states that on 12.8.1975 he wrote Ex. B-82 letter to the Collector withdrawing "his no objection certificate" referred to in Ex. A-8. It is likely that this change of heart on the part of the appellant is perhaps due to his second thought over the Will. So his present claim that he became aware of the Will only on 2.6.1976 during a casual conversation with Advocate Thangamani does not appear to be probable.
36. Anyway, admittedly the appellant had knowledge of the Will since 2.6.1976. However, for 11/2 years he had not taken any steps repudiating the genuineness of the Will. In fact, when the present plaint came to be filed on 13.12.1977, significantly enough there was absolutely-no reference to the existence of the Will. And the claim was made on the basis that Thangammal died intestate on 19.6.1975. Only after the first respondent made mention of the Will in his written statement, the appellant sought to amend the plaint disputing the genuineness of Ex. B-16. This conduct on the part of the appellant erodes on his credibility when he swears that he became aware of the Will only on 2.6.1976 from Advocate Thangamani. His keeping quiet for more than two years without questioning the truth and genuineness of the Will only lends support to-the view that Ex. B-16 is a true one.
37. The other infirmities in the Will as pointed out by learned Senior Counsel for the appellant are no doubt there. But it is possible to make comments of the nature against any Will. And it cannot be said that these infirmities even cumulatively would render the execution of the Will an utter improbability very near to impossibility. Considering the preponderance of probabilities we have no doubt in our mind that Ex. B-16 is the last Will left by deceased Thangammal having been executed by her while in a sound disposing state of mind. We are of the view that the propounder has cleared any suspicion with satisfactory evidence. Our conscience is satisfied not only on execution but about its authenticity. Once a Will is proved to be trueand it was executed by testator, it is not for the court to embark upon an enquiry whether the dispositions made therein are fair and just.
38. Learned Senior counsel for the appellant next contends that even as per Ex. B-16 Will his client is entitled to a half share in suit items 2 to 13 and trial court went wrong indismissing the suit in entirety. He also takes objection to the refusal of the trial court to pass an interim preliminary decree regarding these items. But the trial court rightly took the view that the first respondent has been appointed as executor for these items. He has to discharge all the arrears of tax and debt due by Thangammal from out of the income of these properties. The appellant is entitled to his half share only in whatever remains after the fulfilment of the liabilities as enjoined in the Will. So we find no merit in this contention of learned senior counsel for the appellant.
39. C.M.P.No.12535 of1993: In this application the first respondent seeks to file certain documents as additional evidence in the appeal. These documents relate to the proceedings in O.S. No. 18 of 1978 on the file of Sub Court, Madurai for dissolution and taking of accounts of the Firm M.S.P. Nadar and Sons. The decree therein provides that the liability of accounting of either partiesshall.be gone into by the Joint Commission Thiru T.R. Rajaraman, D.W. 2 herein and one S. Venkatasubbu, Chartered Accountant of Coimbatore. They are sought to be marked for the reason that D.W. 2 acted as Commissioner for the present appellant also. However, it appears that in the Joint Commission while D.W. 2 herein represented the first respondent, Thiru S. Venkatasubbu represented the appellant. So we do not think that these documents are of any relevancy here. 40. In the result, A.S.No.690 of 1983 is dismissed with costs of the first respondent. C.M.P.No.12535 of 1993 is also dismissed. No cost.