Madras High Court
Muniammal vs Annadurai (Deceased) on 23 July, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.07.2008 C O R A M THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.1421 of 1990 Muniammal .. Appellant Vs.
1. Annadurai (Deceased)
2. Sugavanam
3. R.K.Gopalakrishnan
4. R.K.Bimaraja Gounder
5. Thangammal
6. B.Malliga
7. A.Vijayalakshmi
8. A.Gayathri .. Respondents (R5 to R8 brought on record as L.Rs of the deceased R1 as per order of Court dated 15.06.1999 in CMP No.15009 of 1998) Appeal filed as against the judgment and decree dated 14.03.1990 passed in O.S.No.3 of 1983 on the file of the learned Subordinate Judge at Tirupathur.
For Appellant : Mr.T.R.Rajagopal,Sr.Counsel for Mrs.Chitra Sampath For R2 to R4 : Mr.S.V.Jayaraman,Sr.Counsel for Mr.N.Manoharan For R5 and R6 : Mr.V.K.Sathyamurty
This appeal is focussed as against the judgment and decree dated 14.03.1990 passed by the learned Subordinate Judge at Tirupathur in O.S.No.3 of 1983, which was filed by the plaintiff for declaration of her title to the suit properties and for recovery of possession of the same in addition to praying for other consequential and incidental reliefs. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.
2. Tersely and briefly, niggard and bereft of details, the case of the plaintiff as stood exposited from the plaint could be portrayed thus:
The plaintiff is the widow/ legal heir of P.R.Raja Gounder who died issueless on 21.03.1982. The defendants 3 and 4 are the said Raja Gounder's deceased two sisters' respective husbands. The defendants 1 and 2 are their respective sons. The defendants 3 and 4 dominated the mind of Raja Gounder during his life time and he was kept under their control for a long period of time. Raja Gounder was physically and mentally weak and he has lost his discretionary power. With a view to grab the suit properties belonging to Raja Gounder, the defendants brought about a Will as though executed by the said Raja Gounder in favour of D1 and D2. The death of Raja Gounder was not even informed to the plaintiff. After his death, the defendants started setting up untenable claim over it based on an alleged Will dated 20.04.1964 executed by Raja Gounder, who could not have executed such a Will ignoring his own brothers and their sons and there was no necessity for Raja Gounder to execute such an alleged Will. Hence the suit.
3. Per contra, denying and refuting, challenging and impugning, the allegations/averments in the plaint, the first defendant filed the written statement, the warp and woof of it, would run thus:
The deceased Raja Gounder during his life time was hale and healthy and was in a sound state of mind; Out of his own free will, he voluntarily executed the registered Will dated 20.04.1964. The allegations to the contrary in the plaint are all false. The plaintiff and Raja Gounder were not in good terms; she caused lot of troubles to Raja Gounder by instituting vexatious litigations. She filed suit No.15/1943 claiming maintenance as against Raja Gounder and her entire claim was settled by paying a sum of Rs.500/-as per receipt No.61854. Even thereafter, she filed one other suit No.11/88 for maintenance and she got a decree for maintenance at Rs.75/- per month. She was in the habit of filing execution petition as against Raja Gounder. Since the defendants are legally bound to pay maintenance to the plaintiffs after the death of Raja Gounder, they called upon her to claim maintenance. But, she replied setting up untenable claims. Accordingly, he prayed for the dismissal of the suit.
4. D2 filed the written statement, more or less on the same lines as filed by D1 with the additional averments thus:
As per the Will dated 20.04.1964 executed by Raja Gounder, the "A" Scheduled property was bequeathed to D1 and "B" scheduled property was bequeathed to D2 and they respectively took possession of those properties. Raja Gounder, during his life time granted lease of land in Survey Nos.206/2A, 207 and 202/2 in favour of D4 as per registered Muchalika dated 03.03.1982. Hence D4 is in possession of those lands and cultivating the same. Accordingly, he prayed for the dismissal of the suit.
5. The trial court framed the relevant issues. During trial, on the side of the plaintiff P.Ws.1 and 2 were examined and Exs.A1 to Ex.A6 were marked. On the side of the respondents D.Ws.1 to 8 were examined and Exs.B1 to Ex.B7 were marked. Court documents Exs.C1 and C2 were marked. Ultimately, the trial Court dismissed the suit.
6. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court in dismissing the original suit of the plaintiff, the appellant/plaintiff has preferred on the following grounds among others:
(i) The judgment and decree of the trial Court is against law, weight of evidence and all probabilities of the case.
(ii) The trial Court erroneously held that the Will allegedly executed by Raja Gounder was valid.
(iii) The Will was not proved before the trial Court, in the way known to law.
(iv) The deposition of the witnesses examined on the side of the defendants militated as against each other, but that fact was not noticed by the trial Court.
(v) The trial Court erroneously held that D4 was a cultivating tenant. The lease deed itself was in the name of the second defendant and hence D4 had no locus standi to claim that he was a lessee of the property.
Accordingly, she prayed for setting aside the judgment and decree passed by the trial Court.
7. The points for consideration are as to:-
(a) Whether the Will dated 20.04.1964 was executed by Raja Gounder out of his own free Will and volition?
(b) Whether the said Will was proved in the way known to law before the trial Court
(c) Whether there is any infirmity in the judgment and decree of the trial Court ?
8. There arises a preliminary point which is relating to the fact as to whether this present appeal by the appellant/plaintiff Muniammal could be proceeded with by her by contending that the Will - Ex.B.1 is invalid in the wake of her one other appeal A.S.No.90 of 1990, which she filed in the Court of the learned Principal District Judge, Vellore as against the connected suit O.S.No.119 of 1986 filed by Beemaraj R4/D4 herein, having been dismissed by the learned District Judge concerned.
9. The learned Senior Counsel for the defendants would develop his argument by placing reliance on the following decisions:
(i) An extract from the decision reported in AIR 1966 SC 1332 [Sheodan Singh vs. Daryao Kunwar] would run thus:
"20. ... ... ... Where the trial Court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, like limitation of default in printing with the result that the trial Court's decision stands confirmed, the decision of the appeal court will be res judicata and the appeal Court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal court is to confirm the decision of the trial Court given on merits, and if that is so the decision of the appeal court will be res judicata whatever may be the reason for the dismissal. ...."
(ii) An extract from the decision reported in 2001(1)M.L.J. 212 [Renganayaki and another vs. K.R.Renganatha Mudaliar] would run thus:
"11. ... ... .... it can safely be concluded that where two connected suits have been tried together and the findings recorded in one of the suits have become final, in the absence of an appeal, the appeal preferred against the findings recorded in the other suit would definitely be barred by the principles of res judicata."
(iii) An extract from the decision reported in 2001(4)CTC 297 [K.A.Perumalsamy vs. A.Kandasamy and another] would run thus:
"11. ... ... ... There is a clear finding against the appellant in respect of the other two suits also and when once the appellant failed to prefer any appeal against the other two judgments, naturally the present appeal also would be barred on the principles of res judicata. In support of his contention, reliance is placed upon the decision reported in Premier Tyres Ltd., v. Kerala State Road Transport Corporation, 1993 Supp (2) SCC 146, wherein it was observed that where two connected suits tried together and finding recorded in one suit became final in absence of appeal, appeal preferred against the finding recorded in the other suit would be barred by res judicata. The same view has been reiterated in Lonankutty v. Thomman and another, AIR 1976 SC 1645, Sheodan Singh v. Daryao Kunwar AIR 1996 SC 1332 and Vediammal and others v. M.Kandasamy and others 1997 TI NJ 96. In view of the decisions, it is patently clear that the principle of res judicata is also applicable to the case on hand. The courts below have rightly appreciated the contentions raised by the appellant and there is no illegality or infirmity calling for any interference."
10. A perusal of those judgments and more specifically, the excerpts extracted supra would unambiguously highlight the point that out of two appeals filed, if one appeal for any reason was dismissed either on technical grounds or on merits, the same would constitute an embargo as Res judicata for the appellant in one other appeal involving the same issues to proceed further de hors the judgment in the earlier appeal. There is no quarrel over such a proposition. It has become a settled law. However, it has to be seen as to whether the previous judgment in A.S.No.98 of 1990 passed by the Principal District Judge, Vellore on 08.11.2007 would be an embargo for Muniammal herein to proceed with her appeal questioning the validity of the Will - Ex.B.1.
11. The perusal of the common judgment passed by the learned Sub Judge of Tiruppathur in O.S.No.3 of 1983 (relating to A.S.No.1421 of 1990) and O.S.No.119 of 1986 (relating to A.S.No.98 of 1990 concerning which the judgment was passed by the Principal District Judge, Vellore on 08.11.2002) paved the way for filing of the two appeals as set out supra.
12. The learned Senior Counsel for the plaintiff Muniammal would draw the attention of this Court to the judgment of the learned Principal District Judge in the appeal in A.S.No.98 of 1990 and develop his argument that the said judgment was passed subject to the decision that would be rendered by this Court in the present appeal and that Muniammal would not face any embargo in prosecuting her appeal touching upon all the issues.
13. It is therefore just and necessary to look into the said judgment passed by the learned Principal District Judge in the appeal A.S.No.98 of 1990. Beemaraj, the plaintiff in O.S.No.119 of 1986 filed the suit for the purpose of getting injunction so as to safeguard his right as a tenant in the suit property and the trial Court granted injunction in his favour, as per the said common judgment referred to above, as against which only Muniammal filed the appeal A.S.No.98 of 1990 before the learned Principal District Judge, in view of the fact that relating to that appeal only the learned Principal District Judge had the first appellate jurisdiction. The District Court clearly and categorically spelt out that it confirmed the judgment and decree of the lower Court relating to the injunction suit in O.S.No.119 of 1986 in favour of Beemaraj, purely on the ground of Beemaraj's possession as a tenant in the suit property and the learned Principal District Judge made it clear that he had not decided anything finally and that he did not decide any issue relating to Will - Ex.B.1 herein.
14. Paragraph Nos.13 and 14 of the learned Principal District Judge's judgment in A.S.No.98 of 1990 is extracted hereunder for ready reference.
"13. Now the point for consideration is whether the plaintiff in O.S.119/86 has been in possession of the property. To prove his possession, he relied on Ex.B3 and Ex.B6. Ex.B3 is the registered lease deed executed in favour of the first defendant. Ex.B3 has been registered on 3.3.82. Ex.B4 is the adangal. Ex.B4 has been produced to show that he has been in possession of the property. Ex.B5 is the order passed by the Tashildar. It has been produced to show that his name has been mentioned in the tenancy record. Therefore, from this it is very clear that the plaintiff has been in possession of the property from 1982. This aspect has been considered by the trial Court. Since comprehensive suit has been filed and pending before Honourable High Court, this court cannot consider other aspects advanced by the learned counsel appearing for the appellant. Therefore, in my view, the plaintiff has proved his possession of the property on the date of suit. It is also brought to the knowledge of this court, that the first appeal is pending before the Honourable High Court for appropriate relief. Both the suits have been jointly tried and disposed of by the trial court. Therefore, in my view until the finality is reached in O.S.3/83 the plaintiff is entitled to be in possession of the property. Therefore, there is no need to interfere into the decision taken by the learned Sub Judge, Tirupattur.
14. In the result, this appeal is dismissed with costs holding that subject to the result of finality in O.S.3/83 the judgment and decree of the lower court is confirmed."
(emphasis supplied)
15. It is therefore crystal clear that there is considerable force in the contention of the learned Senior Counsel for the plaintiff Muniammal that the said District Judge's judgment cannot be taken as an embargo or res judicata as against Muniammal in prosecuting the present appeal, challenging the genuineness of Ex.B.1 - Will. The learned Senior Counsel for the defendants would contend that whatever may be the adjudication by the learned District Judge, the appeal which emerged out of a part of the common judgment of the trial Court became final and it was against Muniammal and in such a case, Muniammal cannot prosecute this appeal.
16. The perusal of the common judgment would clearly indicate that in the common judgment it has been made clear that absolutely no common issues were framed by the trial Court in respect of both the suits. As many as 5 issues were framed in the main suit O.S.No.3 of 1983 filed by Muniammal for declaration of title and for recovery of possession together with incidental reliefs, whereas in the injunction suit O.S.No.119 of 1986 filed by Beemaraj, only two issues were framed, one relating to the fact as to whether the plaintiff Beemaraj was entitled to injunction and another one issue "To what relief? ". Only those two issues were decided in the injunction suit and not any issue relating to the Will. Hence it is quite obvious and beyond doubt that the judgment rendered by the learned District Judge in the said A.S.98 of 1990 would not operate as res judicata or in any way an embargo for Muniammal to prosecute her present appeal. Accordingly, this preliminary point is decided.
POINTS NO.1 & 2:
These points are taken together for discussion as they are interlinked and interwoven with each other.
17. The learned Senior Counsel for the plaintiff would contend that there are contradictions umpteen in number among the depositions of D.W.2 - the Scribe of Ex.B.1 Will, D.Ws.3, 4 and 5 - the attestors to Ex.B.1 Will; those contradictions are not insignificant or minor contradictions, but material contradictions cutting at the root of the very factum of the alleged execution of the Will by the deceased Raja Gounder, whereas the learned Senior Counsel for the defendants would advance his argument by highlighting the point that more than 22 to 23 years elapsed, ever since the date of execution of the Will till the witnesses deposed before the Court in support of the Will and that due allowances should be given in that regard.
18. At this juncture, it is just and necessary to analyse the depositions of the witnesses concerned. In the written submission furnished on the side of the Muniammal it is set out that D.W.2, the Scribe stated as under:
VERNACULAR (TAMIL) RECORDS
19. Similarly in the same written submission on Muniammal side, the defects in D.Ws. depositions were highlighted as under:
VERNACULAR (TAMIL) RECORDS
20. The above extracts from the written submission of the plaintiff would no doubt highlight the contradictions among the witnesses relating to the presence of all the witnesses at the time of testator executing the Will. In fact, the learned Senior Counsel for the plaintiff would draw the attention of this Court to the fact that one A.Govindaraj was not examined before the trial Court as he died; he was purported to have attested the Will only on 04.11.1964, whereas the Will was alleged to have been written on 20.10.1964; and the witnesses as highlighted supra in the written submission, did give prevaricative and contradictory answers relating to the presence of the witnesses at the time of the testator allegedly signing the Will. No doubt, the said attesting witness A.Govindaraj was not examined before the trial Court as he died, but he attested the Will by putting his signature in it and also mentioning the date as 04.11.1964. However, D.W.1 (D1) would depose that on 20.10.1964 the Will was scribed and it was signed by Raja Gounder after reading the Will and all the witnesses signed on the same day after seeing the testator signing the Will. D.W.2, the Scribe also would state that all the witnesses signed after seeing the testator having signed the Will on the same day, whereas D.W.3 I.D.Govindaraj one of the attested witnesses would depose otherwise that he did not see the testator signing the Will, but the testator told him to sign by stating that he had executed the Will, whereupon, Raja Rao the Scribe D.W.2 asked him to sign the Will.
21. The learned Senior Counsel for the plaintiff would contend that during Chief Examination, D.W.3 stated one version nevertheless during Cross examination he stated another version. No doubt, in the Chief Examination D.W.3 would state as under:
VERNACULAR (TAMIL) RECORDS In cross examination he deposed as under:
VERNACULAR (TAMIL) RECORDS
22. Undoubtedly, the deposition of D.W.3 is not in consonance with the deposition of D.Ws.1 and 2 relating to the presence of all the witnesses at one and the same time when the testator signed the Will. But the core question is as to whether that contradiction should be held as a significant one so as to doubt the very genuineness of the execution of the Will by the Raja Gounder himself. In my considered opinion, the contradictions as highlighted on the side of the plaintiff are not relating to the very execution of the Will by Raja Gounder himself, but it is relating to the allied facts. No doubt, I am fully aware of the fact that a litigant who is desirous of attacking a Will would try to place reliance on these contradictions relating to allied facts as otherwise, according to him he would not be able to attack the Will at all.
23. At this juncture, my mind is redolent with the famous maxim -
Omnia Presumuntur rite esse acta (A prima facie presumption of this regularity of the acts of public officials exists until the contrary appears).
I would further like to spotlight the fact that if the time gap between the execution of the Will and the date of deposition by the witnesses concerned are reasonably short, then certainly such contradictions should be taken as material. But on the other hand, when indubitably there was a time gap of 22 to 23 years between the date of execution of the Will and the deposition of the witnesses before the Court, certainly contradictions relating to allied facts cannot be termed as significant, capable of cutting at the root of the Will itself, if does so, it would amount to throwing the baby along with the bath water.
24. Here, D.W.4 Ponnusamy one other attesting witness would categorically state that he saw Raja Gounder signing the Will Ex.B.1, whereupon the witness himself signed it. D.W.5 Meda Krishna Chetty one other attesting witness to Ex.B.1 would depose that he saw the testator signing the Will, whereupon he attested the Will, but he pleaded loss of memory relating to the presence of other witnesses. D.Ws.4 and 5 clearly and categorically stated that they saw the testator signing the Will and thereafter, they attested the Will on the same day and that itself would satisfy the requirement of law as embodied in Section 63(c) of the Indian Succession Act read with Section 68 of the Indian Evidence Act. Over and above that, D.W.3 also would clearly and categorically delineate that even though he did not see the testator signing it, the testator had acknowledged the fact that he only executed the Will, whereupon, D.W.3 signed it. Hence, his deposition also satisfies the requirement of Section 63(c) of the Indian Succession Act. At this context, it is just and necessary to extract Section 63(c) of the Indian Succession Act.
"63(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal 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."
25. It is not a case here where only one attesting witness was examined, but as many as three attesting witnesses, namely D.Ws.3,4, and 5 were examined and each of those witnesses clearly and categorically deposed before the Court that it was the testator who was the author of the Will and once the said fact has been clearly spoken to by the witnesses, then over and above that no more proof is required. It is a common or garden principle that one attesting witness of the Will need not attest it in the presence of another witness. If at all in a case only one attesting witness is examined before the Court, then various considerations would arise. But here, I need not dilate on that law point as it is not germane for adjudication in this case. As such, the entire issue relating to the execution of the Will has got boiled down to one important and crucial point as to whether those contradictions among the witnesses who spoke about the Will, as highlighted on the plaintiff's side should be taken as material contradictions which are capable of cutting at the root of the plea of the defendants about the execution of the Will by the testator Raja Gounder.
26. I am of the considered opinion that in view of the catena of decisions emerged in this regard, which would be discussed infra, such contradictions are not capable of carrying conviction with the Court to hold the Will as one not proved. It is also a fact to be noted that Ex.B.1 is a registered Will and it has now become a trite proposition that registration of a Will is an additional factor to establish the genuineness of the Will. At this context, I would like to refer to the various decisions cited on both sides.
27. The learned Senior Counsel for the defendants would cite the decision of the Hon'ble Apex Court reported in 2006(2)LW 658 SC [Pentakota Satyanarayana & others vs. Pentakota Seetharatnam & others]. An excerpt from it would run thus:
"25. A perusal of Ex.B9 (in original) would show that the signatures of the Registering Officer and of the identifying witnesses affixed to the registration endorsement were, in our opinion, sufficient attestation within the meaning of the Act. The endorsement by the sub-registrar that the executant has acknowledged before him execution did also amount to attestation. In the original document the executants signature was taken by the sub-registrar. The signature and thumb impression of the identifying witnesses were also taken in the document. After all this, the sub-registrar signed the deed. 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 the testament of departed testator.
26. In the instant case, the propounders were 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 on his own freewill. In other words, the onus of the propounder can be taken to be discharged on proof of the essential facts indicated above. It was argued by learned counsel for the respondent that popounders themselves took a prominent part in the execution of the Will which will confer on them substantial benefits. In the instant case, propounders who were required to remove the said suspicion have let in clear and satisfactory evidence. In the instant case, there was unequivocal admission of the Will in the written statement filed by P.Srirammurthy. In his written statement, he has specifically averred that he had executed the Will and also described the appellants as his sons and Alla Kantamma as his wife as the admission was found in the pleadings. The case of the appellants cannot be thrown out. As already noticed, the first defendant has specifically pleaded that he had executed a Will in the year 1980 and such admissions cannot be easily brushed aside. However, the testator could not be examined as he was not alive at the time of trial. All the witnesses deposed that they had signed as identifying witnesses and that the testator was in sound disposition of mind. Thus, in our opinion, the appellants have discharged their burden and established that the Will in question was executed by Srirammurthy and Ex.B9 was his last will. It is true that registration of the Will does not dispense with the need of proving, execution and attestation of a document which is required by law to be proved in the manner as provided in Section 68 of the Evidence Act. The Registrar has made the following particulars on Ex.B9 which was admitted to registration, namely, the date, hour and place of presentation of document for registration, the signature of the person admitting the execution of the Will and the signature of the identifying witnesses. The document also contains the signatures of the attesting witnesses and the scribe. Such particulars are required to be endorsed by the Registrar along with his signature and date of document. A presumption by a reference to Section 114 of the Evidence Act shall arise to the effect that particulars contained in the endorsement of registration were regularly and duly performed and are correctly recorded. In our opinion, the burden of proof to prove the Will has been duly and satisfactorily discharged by the appellants. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. In such circumstances, the onus shift to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same.
27. It is settled by a catena of decisions that any and every circumstance is not a suspicious circumstance. Even in a case where active participation and execution of the Will by the propounders/beneficiaries was there, it has been held that that by itself is not sufficient to create any doubt either about the testamentary capacity or the genuineness of the Will. It has been held that the mere presence of the beneficiary at the time of execution would not prove that the beneficiary had taken prominent part in the execution of the Will. This is the view taken by this Court in Sridevi & Ors vs. Jayaraja Shetty & Others, (2005) 2 SCC 784 = 2005-2-L.W.89. In the said case, it has been held that the onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and the proof of signature of the testator as required by law not be sufficient to discharge the onus. In case, the person attesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same and that as to what suspicious circumstances which have to be judged in the facts and circumstances of each particular case.
28. Mr.Narsimha, learned counsel for the respondents submitted that the natural heirs were excluded and legally wedded wife was given a lesser share and, therefore, it has to be held to be a suspicious circumstance. We are unable to countenance the said submission. The circumstances of depriving the natural heirs should not raise any suspicion because the whole idea behind the execution of the Will is to be interfered in the normal line of succession and so natural heirs would be debarred in every case of the Will. It may be that in some cases they are fully debarred and some cases partly. This is the view taken by this Court in Uma Devi Nambiar and Others vs. T.C.Sidhan (Dead) (2004) 2 SCC 321 = 2004-2-L.W.852.
(emphasis supplied)
28. The aforesaid cited decision is very much applicable in the facts and circumstances of this case and a mere perusal of it would indicate the same, as Ex.B.1 is a registered Will and in fact, execution of the Will was on 20.10.1964 and the Will was presented for registration on 05.11.1964. As such, the time gap between the execution and the registration of the Will further strengthens the genuineness of the Will, as it would indicate that there was no hustling through in the process of executing the Will as well as in getting the Will registered. Normally if there is any fraud or coercion involved in the execution of the Will, naturally there would be element of urgency and hustling through and it would be writ large. But in this case, such elements are totally missing which exemplifies that in the normal course the testator executed the Will and got it registered. Simply because one of the attesting witnesses attested it on 04.11.1964, that would not detract the genuineness of the Will. No doubt, before the trial Court adequate explanation was not given about such belated attestation by A.Govinda Raj. Even de hors the attestation of A.Govinda Raj, the Will stands proved in view of the evidence as set out supra to the effect that the other attesting three witnesses clearly and categorically spoke about the due execution of the Will by the testator and the attestation of the Will by the witnesses.
29. In the very same Hon'ble Supreme Court's judgment in Pentakota Satyanarayana & others vs. Pentakota Seetharatnam & others reported in 2006(2)LW 658 SC at paragraph No.31, the Hon'ble Apex Court exemplified a very pragmatic approach to the analysis of the Will by the Courts in India. The said paragraph 31 is extracted hereunder:
"31. D.W.6 stated that D1 brought the draft Will and asked him to scribe the same. This is nowhere contradicted by D.W.5. D.W.5 does not say that D1 (testator) did not bring a draft Will. It is quite natural for the testator to have a first draft Will in the pocket when he goes to a document writer. D.W.5 was asked to attest. D.W.6 also speaks about the execution and attestation. The trial Court has made much about the draft Will aspect. This is hardly a suspicious circumstance. D.W.6 says that 4 male persons accompanied D1. This is hardly a suspicious circumstance. D.W.5 also states that there was another person whom he would not identify. The deposition was given in 1997 (i.e. 17 years after the registration of Will) and the courts below ought not to have made a mountain out of a molehill and on that basis reject a duly executed registered Will."
30. Here virtually the plaintiff tried to make a mountain out of a molehill by trying to point out the contradictions relating to allied matters in respect of the execution of the Will. In the said case dealt with by the Hon'ble Supreme Court, there was 17 years gap between the date of execution of the Will and the deposition before the Court. But here, it is obvious that the time gap is more than 22 or 23 years. Hence the ratiocination as set out in paragraph No.31 of the Hon'ble Apex Court's judgment can readily be relied on for rejecting the contention on the plaintiff side, based on those contradictions in the evidence of the witnesses.
31. The learned Senior Counsel for the defendants also cited various other decisions as set out infra relating to the quantum of proof required relating to proving of the Will.
(i) 2005(1) SCC 40 [Daulat Ram and other vs. Sodha and others] (ii) 2005(1) SCC 280 [Meenakshiammal (Dead) through LRs. and others vs. Chandrasekaran and another] (iii) 2005(1) CTC 443 [Sridevi and others vs. Jayaraja Shetty and others] (iv) 2005(1) L.W.455 [Janaki Devi vs. R.Vasanthi and 6 others] (v) 1989 (1) L.W.396 [Nagarajan and 3 others vs. Annammal] (vi) AIR 1982 SC 133 [Smt.Indu Bala Bose and others vs. Manindra Chandra Bose and another] (vii) AIR 1985 SC 500 [Satya Pal Gopal Das vs. Smt. Panchubala Dasi and others] (viii) AIR 1991 Bom. 148 [Asber Reuben Samson and others v. Eillah Solomon and others] (ix) 2008(2) MLJ 119 [M.Anandan and others vs. A.Dakshinamoorthy] (x) 2006(4) L.W.942 [Gurdev Kaur & others vs. Kaki & others] (xi) 2008(1) MLJ 1337 SC [Savithri and others vs. Karthyayani Amma and others] (xii) 2007(3) L.W.916 [1. J.Mathew (died) 2. J.Damien and 3 others vs. Leela Joseph]
32. Among the aforesaid decisions, the learned Senior Counsel for the defendants cited one of the decisions of this Court reported in 2001(3)CTC 283 [Corra Vedachalam Chetty and another vs. G.Jankiraman]. The said decision is on the point that the Court while analysing the Will is acting as a Court of conscience. An excerpt from the above said decision would run thus:
"26. This need for caution, cannot be exploited by unscrupulous caveators who choose to cull out imaginary suspisions with a view to prevent the legatees under the Will from claiming the benefit thereunder and to render the last Will of the deceased wholly ineffective. In this context, the conduct of the persons who raise the alleged ground for suspision is also to be looked at, to know as to how credible are the grounds for suspisions sought to be raised by such persons. In this case, the suspicion is sought to be raised by a person who is keenly interested in making the Will ineffective and whose conduct is far from one which would inspire confidence in truthfulness of his statements."
33. As such, the cited precedent would also highlight that the Court should not attach undue importance to imaginary suspicions. All these aforesaid decisions are on the point that the Court should not at the time of analysing the validity of the Will proceed on the hypothesis that the Will is an invalid one.
34. The learned Senior Counsel for the plaintiff would cite the various decisions which are to be considered hereunder:
(i) 2003(1)CTC 308 [ Janki Narayan Bhoir vs. Narayan Namdeo Kadam]. An excerpt from it would run thus:
"8. To say will has been duly executed the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e., (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witness has to sign the Will in the presence of the testator.
9. It is thus clear that one of the requirements of due execution of Will is its attestation by two or more witnesses which is mandatory.
10. Section 68 of the Evidence Act speaks as to how a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested 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 an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of the proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of the clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in this evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the Will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."
35. The above cited decision of the Hon'ble Apex Court posits the conditions required to prove the Will and over and above that, it also highlights as to what are the features to be expected from an attesting witness if he happens to be the only attesting witness to be examined before the Court. This aspect I have already dealt with supra. But in this case, it is not one attesting witness, but as many as three attesting witnesses have been examined along with the Scribe and a fortiori the execution of the Will was duly proved.
36. An excerpt from one other decision reported in 1995 (II) CTC 476 [Kashibai and another vs. Parwatibai and others] cited by the learned Senior Counsel for the plaintiff would run thus:
"10. This brings us to the question of the will alleged to have been executed by deceased Lachiram in favour of his grand-son Purshottam, the defendant No.3. Section 68 of Evidence Act related to the proof of execution of document required by law to be attested. Admittedly, a Deed of Will is one of such documents which necessarily required by law to be attested. Section 68 of the Evidence Act contemplates that if a document is required by law to be attested, it shall not be used as evidence until the 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. A reading of Section 68 will show that "attestation" and "execution" are two different acts one following the other. There can be valid execution of a document which under the law is required to be attested without the proof of its due attestation and if due attestation is also not proved, the fact of execution is of no avail. Section 63 of the Indian Succession Act, 1925 also lays down certain rules with (C) of Section 63 provides that the Will shall be attested by two or more witnesses each one 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 and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature of mark of the such other person; and each of the witnesses should 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.
As such in this decision also, the evidence required to prove the Will is found highlighted.
37. The learned Senior Counsel for the plaintiff cited the decision of this Court reported in 1997(1) CTC 222 [Kannammal vs. Chinnaponnammal] which is also in reiteration of the salient feature required relating to attestation of a Will. Here, taking into consideration the well settled propositions of law as found highlighted in the precedents cited supra, I analysed the evidence relating to Ex.B.1 and it is clear that Ex.B.1 is a genuine Will.
38. Indubitably and unassailably, the fact remains that the plaintiff Muniammal and the testator Raja Gounder during their life time could not see eye to eye and they were at lagger ends and in fact, they got themselves locked up in litigations which were initiated by Muniammal, claiming maintenance not on one occasion but on two occasions. Incontrovertibly and indisputably, the facts are to the effect that Muniammal filed O.S.No.15 of 1943 for maintenance and thereafter, she also filed one other suit O.S.No.11 of 1968 claiming maintenance. The couple had no issues. It is therefore clear that for decades together ill will prevailed between the couple. The evidence adduced on the defendants side would clearly indicate that Raja Gounder was looked after by the defendants and their families and in such case, it is but natural on the part of the Raja Gounder to execute Ex.B.1 in favour of his sister's sons viz., Anna Durai (D1), Sugavanam (D2). D3 and D4 are the respective fathers of D1 and D2.
39. The learned Senior Counsel for the plaintiff would argue that as per the Will the testator excluded his brothers and brothers' descendants and that it is a suspicious circumstance. In my considered opinion, that cannot be taken as a ground to doubt the Will because there is nothing to prove that Raja Gounder's brother's family looked after Raja Gounder who was apparently suffering from a dreaded skin disease.
40. The preponderance of probabilities would govern the adjudication in civil cases. Here the fact that Muniammal was not in good terms with her husband Raja Gounder has been established and it is an admitted fact and in such a case, it is no wonder that Raja Gounder disinherited Muniammal by executing Ex.B.1 Will.
41. D.W.6 one other independent witness who is a propertied and elderly man also was examined on the side of the plaintiff, and he spoke about the fact that Muniamnal and Raja Gounder were not living together and he also narrated about the factum of the Will executed by Raja Gounder and it is an additional evidence in this Court over and above what was adduced on the defendants' side to prove the Will.
42. Accordingly, the point Nos.1 and 2 are decided to the effect that Ex.B1 Will is a genuine one executed by Raja Gounder and it has been proved as per law.
POINT NO.3:
43. In view of the discussion supra, I could see no infirmity in the judgment and decree of the trial Court, Accordingly, the same is confirmed and the appeal is dismissed. No costs.
gms To The Subordinate Judge, Tirupathur