Madras High Court
Smt. Sivakami vs Sri R.Arumugham (Died) on 21 July, 2022
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
S.A.No. 1183/2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.07.2022
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
S.A.No. 1183 of 2005
And
C.M.P.No. 16387 of 2005
Smt. Sivakami ... Plaintiff/Appellant/Appellant
Vs.
1. Sri R.Arumugham (died)
2. Smt. Sivakamasundari
3. Sri Subramani
4. Sri Selliah
5. Sri Radhakrishnan
6. Sri Thangavelu
7. Sri Jayakaran
8. Sri Prabhu
9. Thavamani ... Defendants/Respondents/Respondents
https://www.mhc.tn.gov.in/judis 1
S.A.No. 1183/2005
PRAYER: This Second Appeal is filed under Section 100 of Civil
Procedure Code, against the Judgment and Decree dated 30.07.2003 in
A.S.No. 95 of 2002 on the file of Principal District Court, Coimbatore,
confirming the Judgment and Decree dated 21.12.2001 in O.S.No. 1626 of
1992 on the file of I Additional Subordinate Court, Coimbatore.
***
For Appellant : Mr. A. Kundavai
For 1st Respondent : died
For RR 3 to 8 : dispensed with
For 9th Respondent : Mr. N.E.A.Dinesh
for Mr. V.Nicholas
JUDGMENT
The Plaintiff in O.S.No. 1626 of 1992 on the file of the First Additional Sub Court at Coimbatore is the appellant herein.
2. The said suit in O.S.No. 1626 of 1992 had been filed by the plaintiff, Sivakami against her brother Arumugam, shown as the 1 st defendant and against Sivagama Sundari, the daughter of her sister, shown as the 2nd defendant and against the tenants in the suit schedule property shown as https://www.mhc.tn.gov.in/judis 2 S.A.No. 1183/2005 the 3rd to 8th defendants, seeking partition and separate possession of 1/6th share in the suit schedule property and for accounts and for costs of the suit.
3. The suit schedule property was vacant land situated at No. 30, Heminswaypet, now Sivasubramaniam Road, in R.S.Puram in Coimbatore bearing T.S.No. 3788 measuring 3200 sq.ft. The suit was dismissed by Judgment dated 21.12.2001 by the First Additional Sub Judge, Coimbatore. Thereafter, the plaintiff filed A.S.No. 95 of 2002 before the Principal District Court at Coimbatore. The said appeal suit along with I.A.No. 1040 of 2002 which had also been filed by the plaintiff for amendment of the description of the property were taken up together for consideration and by Judgment dated 30.07.2003, both the Appeal suit and the Interlocutory Application were dismissed. This has necessitated the plaintiff to file the present Second Appeal.
4. The Second Appeal had been admitted on the following two substantial questions of law:-
https://www.mhc.tn.gov.in/judis 3 S.A.No. 1183/2005“1) Whether in law the Courts below erred in overlooking that no attestor was examined to prove Ex.B13 Will and assuming without admitting that the attestors were dead that non-
examination of any one identifying the signatures of that attestors would amount to non-compliance of Section 69 of Evidence Act to hold that the Will was not proved?
2) Whether in law the Courts below have erred in overlooking that proving the signatures of Scribe or testator is not sufficient proof of the execution of the Will marked as Ex.B13 as held in the Judgment report in A.I.R.2001 (5) SC 689?” O.S.No. 1626 of 1992 [ I Additional Sub Court, Coimbatore]:
5. The plaintiff claimed that the property had been purchased as vacant land by Raman Chettiyar, who then put up a titled house consisting of two portions. He died intestate on 10.04.1448 and left behind his wife and his https://www.mhc.tn.gov.in/judis 4 S.A.No. 1183/2005 son, the first defendant, as his legal heirs. It was stated that since he died before the introduction of the Hindu Succession Act in 1956, the first defendant was entitled to an undivided ½ share and Nagammal was entitled to maintenance from the other ½ share. Thereafter, Nagammal died on 21.06.1978 leaving behind as her legal heirs the plaintiff, the first defendant and also the second defendant, who was the daughter of a pre-
deceased daughter. The plaintiff sought 1/3rd share in the ½ share of Nagammal which indicates that she sought undivided 1/6th share in the suit schedule property.
6. It was also stated that prior to filing of the suit, the plaintiff had issued an Advocate's notice and the first defendant had issued a reply notice stating that Nagammal had executed a Will in his favour with respect to her entire ½ share and therefore, he became entitled to the entire property. He contended that the plaintiff cannot seek partition and separate possession. Holding that the execution of the Will is surrounded with suspicious circumstances, the suit had been filed seeking partition and separate possession as stated above.
https://www.mhc.tn.gov.in/judis 5 S.A.No. 1183/20057. The first defendant filed a written statement, denying the contentions raised in the plaint. He claimed that as daughter in the family, the plaintiff was not entitled to claim a share in the property. He claimed the property in entirety particularly because Nagammal had executed a registered Will in his name. He also filed an additional written statement, affirming the same facts. It was also stated that even if it is to be presumed that the plaintiff is entitled to a share in the property, he had perfected title by adverse possession. The defendant claimed that the suit should be dismissed.
8. On the basis of the above pleadings, the trial Court framed the following issues:-
“(i) Whether the plaintiff was entitled to partition and separate possession of the suit schedule properties and if so, to what share? and
(ii) To what other a reliefs as the plaintiff is https://www.mhc.tn.gov.in/judis 6 S.A.No. 1183/2005 entitled to?”
9. A further additional issue was framed, namely, “(iii) Whether the contention of the defendant that under the Will dated 14.06.1978, he was entitled to the entire property is correct?”
10. During trial, the plaintiff examined herself as PW-1 and the first defendant examined himself as DW-1. He also examined two other witnesses namely the scribe of the Will and the Sub Registrar where the Will was executed as DW.2 and DW.3. The plaintiff marked Exs. A-1 to A-11. Ex.A-1 was the sale deed dated 10.08.1939 in favour of Ramam Chettiyar and Exs.A4, A-6, A-7, A-10 & A-11 are notices exchanged between the parties. The defendant marked Exs. B-1 to B-13. Ex.B-13 is the Will executed by Nagammal dated 14.06.1978. During the course of trial Exs. X-1 to X-8 were also marked. They were documents executed between the first defendant and the Coimbatore Co-operative Bank Limited.
https://www.mhc.tn.gov.in/judis 7 S.A.No. 1183/200511. On the basis of the evidence advanced, the trial Court proceeded to examine the issues. It was found that, as a fact, the vacant land had been purchased by Raman Chettiyar and that, he had died in the year 1948 much prior to the introduction of the Hindu Succession Act. As on that date, he and the first defendant alone were entitled to an equal ½ share in the property. Later, his ½ share devolved on to his wife Nagammal and that was used for her maintenance and after the introduction of the Hindu Succession Act 1956, the said share blossomed into absolute ownership.
12. Thereafter, the trial Court examined Ex.B-13 the Will executed by Nagammal. It was contended that both the attesting witness had died. It was noted that steps to serve the said attesting witness had been returned with endorsement 'insufficient address'. Therefore, in order to prove Ex.B-
13, the defendant examined DW-2 the scribe of the said Will and DW-3 the concerned Sub-Registrar. DW-2 stated that he had not known the attesting witness earlier and that Nagammal had brought them and that he had seen them signing the Will. DW-3, Sub-Registrar deposed that normally, the Will must be read by the Sub-Registrar and explained to the executor and https://www.mhc.tn.gov.in/judis 8 S.A.No. 1183/2005 thereafter, after taking sufficient safeguards, the Will is registered and during the course of such registration, thumb impression is also taken.
DW-3 affirmed Ex.B-13 as the Will registered in the Sub Registrar Office.
On the basis of the above evidence holding that Ex.B13 had been proved with specific compliance of Section 69 of the Evidence Act, the suit for partition was dismissed.
A.S.No. 95 of 2002 [Principal District Court, Coimbatore]:
13. Thereafter, the plaintiff filed A.S.No. 95 of 2002. Along with the said Appeal Suit, the plaintiff had also filed an application in I.A.No. 1040 of 2002 to amend the suit schedule property.
14. It must be mentioned that the actual extent of the suit schedule property as given in the plaint is 3200 sq.ft. It was stated that Raman Chettiyar had actually settled a portion of the property in favour of the first wife, who had also put up an independent building and therefore, the land available for partition is only 2240 sq.ft. But however I.A.No. 1040 of 2002 was dismissed.
https://www.mhc.tn.gov.in/judis 9 S.A.No. 1183/200515. Thereafter, the learned Principal District Judge, Coimbatore, took up A.S.No. 95 of 2002 for consideration. Necessary points for consideration were framed in the Appeal and they revolved around proof of execution of the registered Will dated 14.06.1978 / Ex.B-13 and whether the appellant/plaintiff was entitled to seek partition and separate possession.
16. The First Appellate Court once again reappraised the facts and the evidence recorded. The evidence of DW-2 N.Sivaganam, who was the scribe of Ex.B-13 was considered and the relevant portion was also extracted wherein he had deposed that though he did not know the attesting witness earlier, still he was present when they signed the Will as attestors. Thereafter, the deposition of DW-3 Thangaraj, who was the Sub-
Registrar at the time of registration of the Will was also considered and the relevant portion was extracted and his evidence that the Will was duly registered after following due procedure in the Sub Registrar Office was noted.
17. In view of the evidence presented and particularly because it was https://www.mhc.tn.gov.in/judis 10 S.A.No. 1183/2005 informed that the attesting witnesses were dead, the learned Principal District Judge, Coimbatore, held that the Will had been proved in manner known to law and therefore confirmed the Judgment and Decree of the trial Court and dismissed the First Appeal.
S.A.No. 1183 of 2005:
18. The plaintiff then filed the present Second Appeal.
19. The Second Appeal had been admitted on the following two substantial questions of law:-
“1) Whether in law the Courts below erred in overlooking that no attestor was examined to prove Ex.B13 Will and assuming without admitting that the attestors were dead that non-examination of any one identifying the signatures of that attestors would amount to non-compliance of Section 69 of Evidence Act https://www.mhc.tn.gov.in/judis 11 S.A.No. 1183/2005 to hold that the Will was not proved?
2) Whether in law the Courts below have erred in overlooking that proving the signatures of Scribe or testator is not sufficient proof of the execution of the Will marked as Ex.B13 as held in the Judgment report in A.I.R.2001 (5) SC 689?”
20. Both the substantial questions of law revolve around the nature of evidence adduced to prove execution of Ex.B-13, Will dated 14.06.1978 by Nagammal. The original Will is available in Court. I had occasion to peruse the same. It had been written in ink. In fact, in each page, Nagammal had affixed her left thumb impression. It had been registered as document No. 57 of 1978. There are two attesting witness to the said document. The first attesting witness was Pechimuthu and the second attesting witness was Ramasamy Sevar. The Will was written by N.Sivaganam / DW-2.
21. The plaintiff is the daughter of Raman Chettiyar. The first defendant is her brother. The second defendant is her sister's daughter. The property https://www.mhc.tn.gov.in/judis 12 S.A.No. 1183/2005 was purchased by Raman Chettiyar. He died intestate on 10.04.1948. It is stated that he had put a small tiled house and after his death, his wife Nagammal had also put up an additional tiled building. Nagammal died on 21.06.1978. On the date of death of Raman Chettiyar, he and his son, the first defendant were each entitled to an undivided ½ share. Nagammal was entitled for maintenance from the ½ share of Raman Chettiyar. That maintenance or share of ½ the property towards maintenance blossomed into absolute ownership on the introduction of Hindu Succession Act 1956.
On her death, if it is held she had died intestate, her ½ share would have again devolved on to the plaintiff, the first defendant and the second defendant in equal shares. It is for that reason that the plaintiff had filed the suit seeking partition and separate possession of undivided 1/6th share.
22. The claim that Nagammal died intestate had been resisted by the first defendant, who stated that Nagammal had executed a Will on 14.06.1978 bequeathing her ½ share to the first defendant. This would indicate that if the Will stands proved, the first defendant would be entitled to the entire property. Thus the plaintiff's suit for partition would succeed or fail on Ex.B-13, Will of Nagammal being proved in manner known to https://www.mhc.tn.gov.in/judis 13 S.A.No. 1183/2005 law.
23. Section 63 of the Indian Succession Act, 1925 is 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 to 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 seen https://www.mhc.tn.gov.in/judis 14 S.A.No. 1183/2005 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 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. ”
24. Section 68 of the Indian Evidence Act, 1872 is 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 witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the https://www.mhc.tn.gov.in/judis 15 S.A.No. 1183/2005 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.] ”
25. Order 16 Rule 10 CPC is as follows:-
“10. Procedure witness fails to comply with summons.
(1) Where a person to whom a summons has been issued either to attend to give evidence or to produce a document, fails to attend or to produce the document in compliance with such summons, the Court-
(a) shall, if the certificate of the serving officer has not been verified by affidavit, or if service of the summons has been effected by a party or his agent, or
(b) may, if the certificate of the serving officer has been so verified, https://www.mhc.tn.gov.in/judis 16 S.A.No. 1183/2005 examine on oath the serving officer or the party or his agent, as the case may be, who has effected service, or cause him to be so examined by any Court, touching the service or non-service of the summons.
(2) Where the Court sees reason to believe that such evidence or production is material, and that such person has, without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein;
and a copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides.
(3) In view of or at the time of issuing such proclamation, or at any time afterwards, the Court may, in its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his https://www.mhc.tn.gov.in/judis 17 S.A.No. 1183/2005 property to such amount as it thinks fit, not exceeding the amount of the costs of attachment and of any fine which may be imposed under rule 12:
Provided that no Court of Small Causes shall make an order for the attachment of immovable property.”
26. Section 69 of the Indian Evidence Act, 1872 is as follows:-
“69. Proof where no attesting witness found. —If no such attesting witness 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. ”
27. The provisions are very clear. A Will which requires attestation can be deemed to have been proved in manner known to law only if the https://www.mhc.tn.gov.in/judis 18 S.A.No. 1183/2005 attestors are examined in Court and they assert its execution. If the attestors are not available, then steps must be taken under Order 16 Rule 10 CPC to summon the attesting witness. If they do not respond to the summons then, after the further procedure as provided in Order 16 Rule 10 must be followed. This is all the more mandatory in the case of proof of a Will. Notices/ summons must be issued to attesting witnesses since law prescribes that they must be examined. Only when they do not respond to the notice, should the provisions under Section 69 of the Indian Evidence At, 1872 be resorted to.
28. In 1945 SCC OnLine Cal 146 : (1944-45) 49 CWN 377 : AIR 1945 Cal 350 [ Amal Sankar Sen and another Vs. The Dacca Co-
operative Housing Society Limited.,], the Calcutta High Court held as follows:-
“7. .............. In order that Section 69, Evidence Act, may be applied, mere taking out of the summons or the service of summons upon an attesting witness or the mere taking out of warrant against him is not sufficient. It is only https://www.mhc.tn.gov.in/judis 19 S.A.No. 1183/2005 when the witness does not appear even after all the processes under Order 16, Rule 10, which the Court considered to be fit and proper had been exhausted that the foundation will be laid for the application of Section 69, Evidence Act. The party, namely, the plaintiff, must move the Court for processes under Order 16, Rule 10, C.P. C., ...........”
29. In the instant case, it had been stated that both the attesting witness are dead. There is no direct evidence on that fact. Notices issued to them were returned stating that the addresses were insufficient. But there is hearsay oral evidence let in to state that their relatives informed DW.2 that the attesting witnesses were dead. This evidence cannot be said to be sufficient compliance of Order 16 Rule 10 CPC. No documentary evidence had been produced to prove that particular fact.
30. The first defendant fell back to examining the scribe as DW-2 and the Sub-Registrar as DW-3.
31. Section 69 of the Indian Evidence Act, 1872 states that there must be https://www.mhc.tn.gov.in/judis 20 S.A.No. 1183/2005 sufficient proof of the handwriting of the attesting witness and also of the executor.
32. In the instant case, in the evidence of DW-2, he had stated that he had not known the attesting witness prior to then attesting Ex.B-13. This would indicate that he did not know their normal handwriting prior to their attesting of Ex.B-13. He was not even aware as to their normal signature.
Therefore, he cannot prove their normal handwriting or normal signature.
33. His evidence is of no advantage to the defendant.
34. The Sub Registrar had been examined as DW.3. He does not become an attesting witness under Section 3 of the Transfer of Property Act.
35. In (2007) 9 SCC 728 [ Benga Behera Vs. Braja Kishore Nanda & others], it had been held as follows:-
https://www.mhc.tn.gov.in/judis 21 S.A.No. 1183/2005“34. A question has also been raised as to whether a certificate by Sub-Registrar at the time of registration proves attestation. A Sub- Registrar in the matter of registration of a document acts under the provisions of the Registration Act, 1908 (the 1908 Act). Section 52 of the 1908 Act prescribes the duty of Registering Officer when a document is presented in terms thereof. The signature of every person presenting a document for registration is required to be endorsed on every such document at the time of presentation. Section 58 prescribes the particulars to be endorsed on documents admitted for registration, such as:
(a) signature of the person admitting the execution of the document;
(b) any payment of money or delivery of goods made in presence of Registering Officer in reference to the execution of the document shall be endorsed by the Registering Officer in the document presented for registration.https://www.mhc.tn.gov.in/judis 22 S.A.No. 1183/2005
Therefore this is the only duty cast on the registering authority to endorse on the will i.e. to endorse only the admission or execution by the person who presented the document for registration. The compliance with this provision leads to the legal presumption that the document was registered and nothing else.
35. If an authority in performance of a statutory duty signs a document, he does not become an attesting witness within the meaning of Section 3 of the Transfer of Property Act and Section 63 of the Succession Act. The term “attestation” means:
to “attest” is to bear witness to a fact. The essential conditions of valid attestation are (i) two or more witnesses have seen the executant sign the instrument; (ii) each of them has signed the instrument in presence of the executant.
36. “Animus attestandi” is a necessary https://www.mhc.tn.gov.in/judis 23 S.A.No. 1183/2005 ingredient for proving the attestation. If a person puts his signature in a document only in discharge of his statutory duty, he may not be treated to be an attesting witness. ”
36. In AIR 2001 SC 2802 [ N.Kamalam (dead) and another Vs. Ayyaswamy and Another], the Hon'ble Supreme Court had observed as follows:-
“ 26. The effect of subscribing a signature on the part of the scribe cannot in our view be identified to be of same status as that of the attesting witnesses. The signature of the attesting witness as noticed above on a document, required attestation (admittedly in the case of a will the same is required), is a requirement of the statute, thus cannot be equated with that of the scribe. The full Bench judgment of the Madras High Court in H. Venkata Sastri and Sons and others v.
Rahilna Bi and others (AIR 1962 Madras
111) wherein Ramachandra Iyer, J. speaking for the full bench in his inimitable style and upon reliance on Lord Cambells observation in Burdett v. Spilsbury has the following to https://www.mhc.tn.gov.in/judis 24 S.A.No. 1183/2005 state pertaining to the meaning to be attributed to the word attestation:
The definition of the term attested which is almost identical with that contained in S.63
(c) of the Indian Succession Act, has been the result of an amendment introduced by Act 27 of 1926. Prior to that amendment it was held by this court that the word attested was used only in the narrow sense of the attesting witness being present at the time of execution.
In Shamu Pattar v. Abdul Kadir ILR 35 Mad 607 (PC), the Privy Council accepted the view of this court that attestation of a mortgage deed must be made by the witnesses signing his name after seeing the actual execution of the deed and that a mere acknowledgement of his signature by the executant to the attesting witness would not be sufficient. The amending Act 27 of 1926 modified the definition of the term in the Transfer of property Act so as to make a person who merely obtains an acknowledgement of execution and affixed his signature to the document as a witness, an https://www.mhc.tn.gov.in/judis 25 S.A.No. 1183/2005 attestor. It will be noticed that although S.3 purports to define the word attested it has not really done so. The effect of the definition is only to give an extended meaning of the term for the purpose of the Act; the word attest is used as a part of the definition itself. It is, therefore, necessary first to ascertain the meaning of the word attest independent of the statute and adopt it in the light of the extended or qualified meaning given therein. The word attest means, according to the Shorter Oxford Dictionary to bear witness to, to affirm the truth or genuineness of, testify, certify. In Burdet v. Spilsbury, (1842-43) 10 Cl and F 340, Lord Cambell observed at page 417, What is the meaning of an attesting witness to a deed? Why, it is a witness who has seen the deed executed, and who signs it as a witness.
The Lord Chancellor stated, https://www.mhc.tn.gov.in/judis 26 S.A.No. 1183/2005 “the party who sees the will executed is in fact a witness to it; if he subscribes as a witness, he is then an attesting witness.
The ordinary meaning of the word would show that an attesting witness should be present and see the document signed by the executant, as he could then alone vouch for the execution of the document. In other words, the attesting witness must see the execution and sign.
Further, attestation being an act of a witness, i.e., to testify to the genuineness of the signature of the executant, it is obvious that he should have the necessary intention to vouch it. The ordinary meaning of the word is thus in conformity with the definition thereof under the Transfer of Property Act before it was amended by Act 27 of 1926. Before that amendment, admission of execution by the executant to a witness who thereupon puts his signature cannot make him an attestor properly so called, as he not being present at the execution, cannot bear witness to it; a mere mental satisfaction that the deed was https://www.mhc.tn.gov.in/judis 27 S.A.No. 1183/2005 executed cannot mean that he bore witness to execution.
(4) After the amendment of S.3 by Act 27 of 1926, a person can be said to have validly attested an instrument, if he has actually seen the executant sign, and in a case where he had not personally witnessed execution, if he has received from the executant a personal, acknowledgment of his signature, mark etc. Thus of the two significant requirements of the term attest, namely (1) that the attestor should witness the execution, which implies his presence, then, and (2) that he should certify or vouch for the execution by subscribing his name as a witness; which implies a consciousness and an intention to attest, the Amending Act modified only the first; the result is that a person can be an attesting witness, even if he had not witnessed the actual execution, by merely receiving personal acknowledgment from the executant of having executed the document and putting his signature. But the amendment did not affect in any way the necessity for the latter https://www.mhc.tn.gov.in/judis 28 S.A.No. 1183/2005 requirement, namely, certifying execution which implies that the attesting witness had the animus to attest.”
27. It was next contended that in the event of there being an intent to attest, that itself should be sufficient compliance of the requirement of law. While the introduction of the concept of animus to attest cannot be doubted in any way whatsoever and also do feel it relevant in the matter of proof of a document requiring attestation by relevant statutes but the same is dependant on the fact situation. The learned Judge as noticed above has himself recorded that two significant requirements of the term attest viz., that the attestor should witness the execution thereby thus implying his presence on the occasion and secondly that he should certify for execution by subscribing his name as a witness which implies consciousness and intention to attest. Unfortunately, however, the factual score presently available does not but depict otherwise. The scribes presence cannot be doubted but the issue is not what it https://www.mhc.tn.gov.in/judis 29 S.A.No. 1183/2005 is being said to be in support of the appeal that the scribe having subscribed his signature, question of further attestation would not arise this issue unfortunately we are not in a position to lend concurrence with. The will as produced, records the following at page 4 thereof: (page 106 of the P.Book) Witnesses L.T.I. of Masanae Gowder
1. (sd/-(T.subbiya) S/oVeerai Gowder 25/298 Thomas Street Coimbatore.
2. (sd/-) B. Govindaraju s/o S. Balagurumurthy Chettiar 25/250 Rangai Gowder Street, Coimbatore.
S/d Arunachalam The animus to attest, thus, is not available, so far as the scribe is concerned:
he is not a witness to the will but a mere writer of the will. The statutory requirement as noticed above cannot thus be transposed in favour of the writer rather goes against the propounder since both the witnesses are named therein with detailed address and no https://www.mhc.tn.gov.in/judis 30 S.A.No. 1183/2005 attempt has been made to bring them or to produce them before the court so as to satisfy the judicial conscience. Presence of scribe and his signature appearing on the document does not by itself be taken to the proof of due attestation unless the situation is so expressed in the document itself this is again however not the situation existing presently in the matter under consideration. Some grievance was made before this court that sufficient opportunity was not being made available, we are however, unable to record our concurrence therewith. No attempt whatsoever has been made to bring the attesting witnesses who are obviously available.”
37. The position of law is very clear. If the notices issued under Order 16 Rule 10 CPC had been returned with an endorsement 'dead', then the first defendant could have resorted to examining further witness. However, the notices had been returned only as 'insufficient address'.
38. There cannot be presumption of the death of attesting witnesses based https://www.mhc.tn.gov.in/judis 31 S.A.No. 1183/2005 on oral evidence. It is also to be noted that no documentary evidence had been produced to establish that both the attesting witnesses had actually died. There is also no direct oral evidence. DW-2 deposed that the relatives of the attesting witnesses told him that the attesting witnesses were dead. Reliance can hardly be placed on such sketchy evidence.
39. In the absence of acceptable evidence relating to non-examination of the attesting witnesses, I hold that the Will had not been and could not have been held to have been proved in manner known to law. The evidence of DW-3 the Sub-Registrar would not advance the case of the defendant in proving the Will. DW-3 is only interested in ensuring that the Court holds that the registration process was conducted properly. Proper registration would not automatically mean that the Will had been proved in the manner known to law. Even a registered Will will still have to be proved in the manner known to law.
40. It is thus seen whether a Will is registered or not, the provisions under Section 63 of the Succession Act and Section 68 of the Indian Evidence Act will have to be followed and if attesting witnesses are not https://www.mhc.tn.gov.in/judis 32 S.A.No. 1183/2005 found then after ensuring that they are not available by issuing notices under Order 16 Rule 10 CPC., then under Section 69 of the Indian Evidence Act, any person who knows the handwriting of the attesting witness and also knows the handwriting of the executor must be summoned. Failure to do so, would only indicate that the Will had not been proved in the manner known to law.
41. In view of the above reasoning, I would interfere with the Judgments of both the Courts below and allowed the Second Appeal.
42. I am informed that the issue of Court Fees paid by the appellant will have to be re-examined since it is claimed by the learned counsel for the first respondent that the appellant is not in possession and therefore, Court Fees under Section 37(1) of the Tamil Nadu Court Fees and Suit Valuation Act should have been paid. At the time of the final decree application filed, I am confident that the learned Trial Judge would examine this particular aspect.https://www.mhc.tn.gov.in/judis 33 S.A.No. 1183/2005
43. It is also stated that buildings have been constructed in the suit property as on date and that the first respondent is in possession of the constructed portions. If that be so, during final decree application, when a Commissioner is appointed, let a judicious decision be taken regarding the carving of undivided 1/6th share to the appellant herein. If the property cannot be divided in metes and bounds, then adequate compensation can be paid to the appellant and that is again a decision which can be taken only by the trial Court.
44. During the final decree application, the Commissioner may examine the actual portion available for partition since it is stated by the learned counsel for the appellant that the actual portion available for partition is only 2240 sq.ft. A decision may be taken on that ground also.
45. The Second Appeal is allowed, in view of the relationship on the parties without costs.
46. In the result,
(i) the Second Appeal is allowed. No costs.;https://www.mhc.tn.gov.in/judis 34 S.A.No. 1183/2005
(ii) the Judgment and Decree dated 30.07.2003 in A.S.No. 95 of 2002 on the file of Principal District Court, Coimbatore is set aside;
(iii) the Judgment and Decree dated 21.12.2001 in O.S.No. 1626 of 1992 on the file of I Additional Subordinate Court, Coimbatore, is set aside and the suit is decreed as prayed for.
(iv) Consequently, connected Miscellaneous Petition is closed.
21.07.2022
Index :Yes/No
Internet:Yes/No
vsg
To
1. Principal District Court, Coimbatore.
2. I Additional Subordinate Court, Coimbatore.
https://www.mhc.tn.gov.in/judis 35 S.A.No. 1183/2005C.V.KARTHIKEYAN, J.
vsg S.A.No. 1183 of 2005 And C.M.P.No. 16387 of 2005 https://www.mhc.tn.gov.in/judis 36 S.A.No. 1183/2005 21.07.2022 https://www.mhc.tn.gov.in/judis 37