Madras High Court
G.Murugesan Alias Rukmini vs G.Anandan on 14 August, 2012
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.08.2012
CORAM
THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH
S.A.No.2023 of 2002
1.G.Murugesan alias Rukmini
2.Pappammal ...Appellants
vs.
G.Anandan ...Respondent
Appeal filed under Section 100 of C.P.C. against the judgment and decree dated 23.04.2002 in A.S.No.28 of 2001 on the file of the Learned Principal District Judge, Vellore, confirming the judgment and decree dated 09.04.2001 in O.S.No.302 of 1987 on the file of the Learned Subordinate Judge, Vellore.
For Appellants : Mr.R.Balakrishnan
For Respondent : Mr.T.Dhanyakumar
JUDGMENT
This appeal is directed against the judgment and decree passed by the First Appellate Court in A.S.No.28 of 2001 dated 23.04.2002 in confirming the judgment and decree passed by the Trial Court made in O.S.No.302 of 1987 dated 09.04.2001 in partly decreeing the suit.
2. The appellants were the defendants 1 and 3 and the respondent was the plaintiff before the trial court. The second defendant died during the pendency of the suit and the plaintiff and the first defendant were recorded as legal representatives of the deceased second defendant. For convenience, the rank of the parties before the trial court is maintained in this judgment.
3. The case of the plaintiff in the amended plaint would be as follows:
(i)The plaintiff and the first defendant are sons of one Guruvan and the second defendant is the wife of Guruvan. The third defendant is the wife of the first defendant. The father of the plaintiff and the first defendant and the husband of the second defendant had executed a Will in favour of the plaintiff and the defendants. Thereafter the said Guruvan died on 13.07.1958. After his death the Will came into force. On 18.07.1989 in the presence of panchayatdars, a family arrangement was held and it was agreed to divide the suit properties into equal shares between the plaintiff and the first defendant. Accordingly the plaintiff is entitled for = share in the schedule mentioned properties.
(ii) As per the recitals referred in the Will the plaintiff and the defendants are entitled to 1/3 share in the schedule mentioned properties. The plaintiff and the defendants are in possession over the suit properties. During the year 1966, the plaintiff installed 3 HP Motor pumpset in item No.1 of the suit properties. The cost of the pumpset is Rs.5000/-. The plaintiff obtained service connection in his name. Item No.4 referred in the schedule belongs to the plaintiff and the defendants. The plaintiff and the defendants are jointly entitled to claim share. 3rd defendant, the wife of the first defendant claims certain title over the portion of the suit properties. The defendants became hostile towards the plaintiff. Hence, he convened a panchayat on 17.05.1987 at Pennathur for effecting the division of the common properties. The first defendant was agreed to effect a division of the suit properties.
(iii) Apart from that, he is trying to create encumbrance over the suit properties. Hence, the plaintiff issued a lawyer's notice to the first defendant on 22.05.1987 calling upon him to effect partition and surrender possession of his share. The first defendant issued a reply notice to the plaintiff on 24.05.1987, containing false and frivolous allegations. The defendants are bound to pay the share of income derived from the schedule mentioned properties item 1 to 4, to the plaintiff from the date of filing of the suit.
(iv) The plaintiff filed a suit for partition and separate possession and allotment of = share in the suit properties in respect of item 1 to 5. Further, the plaintiff also prays for declaration of his exclusive title to item No.6 of the suit property. The plaintiff is claiming account in respect of share of income from the suit properties in respect of item Nos. 1 to 4 from the date of suit.
4. The case of the defendants 1 and 2 as stated in the written statement as well as additional statement would be as follows:
(i) The plaint filed by the plaintiff is fraudulent, vexatious and the same is not maintainable either in law or on facts. The defendants admits the relationship in para 3 of the plaint. It is true that Guruvan had executed a Will dated 27.12.1955 in a sound and disposing state of mind in respect of suit properties bequeathing the same in favour of the plaintiff and the defendants. Since his father died the plaintiff and the defendants 1 and 2 are entitled to 1/3 share in the properties mentioned in the Will namely item 1 to 3 in the plaint schedule. Since the plaintiff was employed in army at that time to secure a quick connection the application was made in his name and service connection was taken in his name.
(ii) It is incorrect to allege that the plaintiff spent a sum of Rs.5,000/- in 1966 and erected the pumpset. Item No.6 of the plaint schedule is also a joint family item to be divided between the sharers. He admits the allegations in para 4 of the plaint. Each of the parties are entitled to 1/3rd share in the joint family properties viz items 1 to 3 and 6. Item No.4 bullock cart does not belong to the family. It belongs to one Ganesan and brother-in-law of the defendant. Item No.5 the gold chain does not exist. There was no such item for the joint family.
(iii) The second defendant has been living with him after his father's death and the plaintiff has never taken any interest in the second defendant and the joint family all these years. The plaintiff who is employed in the army takes law in his own hands and has been threatening the defendants with dire consequences. The defendant issued a reply notice setting forth the true facts. The defendant denied the alleged panchayat on 17.05.1987. The allegations in para 6 of the plaint are false and they are emphatically denied.
(iv) The defendant denies the allegations in para 7 of the plaint. The defendant is not liable to render any account in respect of income derived from the property. This defendant has no objection for division of item Nos 1 to 3 and 6 of the plaint schedule and allotment of plaintiff's share. Item No.4 does not belongs to the family and item No.5 jewel never existed. The plaintiff is liable to contribute 1/3 share in respect of the amount spent by this defendant for reclaiming the land and also the discharge of the mortgage debt.
(v) The defendant emphatically denied the allegations in para 3-A of the plaint. This defendant submits that while the suit was pending the plaintiff high handedly removed the front entrance of the house and raised a wall in the middle of the house and thereby preventing ingress and egress to the house which was in the joint possession of the parties. The plaintiff falsely pleaded that there was a mediation on 18.07.1989.
(vi) This defendant had filed I.A.1182 of 1989 and 1183 of 1989 in the said suit against the plaintiff. When the applications were in the part heard stage, the plaintiff instigated unruly elements and bend the defendant's wife on 09.01.1990. This defendant at the intervention of villagers demolished the wall erected by the plaintiff illegally. It is mischievous to allege that in a alleged family arrangement on 18.07.1989, the plaintiff and this defendant have agreed to divide the suit property into two equal shares. The alleged panchayat and family arrangement is a myth. The plaintiff is not entitled to claim half share in the suit property. This defendant denies the allegations in paras 5 and 6 of the plaint. The defendants are not accountable to the plaintiff in any manner in respect of the income from the suit properties.
(vii) The defendant submits that the 3rd defendant is his wife and daughter in law of the 2nd defendant. This defendant and 3rd defendant took care of the second defendant and were attending to all her needs. Hence the second defendant had developed an attachment towards the 3rd defendant. Hence the second defendant bequeathed her 1/3 share in item Nos.1 to 3 of the plaint schedule in favour of the 3rd defendant under a Will dated 26.05.1987. The 3rd defendant became absolutely entitled to 1/3 share in item No.1 to 3 of the plaint schedule on the death of 2nd defendant. The plaintiff was aware of the execution of the Will.
(viii) The plaintiff who is an ex-army man wielding a lot of influence filed the suit for partition in respect of his 1/3 share against the defendants 1 and 2. At the end of July 1989, the plaintiff illegally and unlawfully attempted to put a wall in the middle of the house by removing the main entrance of the house costing nearly Rs.10,000/- and prevented ingress and egress for the defendants. As the plaintiff was continuing his unlawful activities this defendant pressed for early disposal of the two applications. This defendant also filed application for appointment of an Advocate Commissioner for inspection of the suit house and submit a report. Thereupon a Commissioner was appointed to inspect the suit house and submitted a report with plan. Meanwhile I.A.1182 of 1989 and 1183 of 1989 were taken up for hearing. When the petitions were part heard the plaintiff instigated unruly elements and assaulted the 3rd defendant on 09.01.1990 when she preferred a police complaint also.
(ix) The plaintiff unlawfully harvested the sugarcane crops raised by this defendant to the extent of 38 cents of the suit property and recovered the produce worth Rs.3,000/-. This defendant did not press O.S.673 of 1989 which had become infructuous consequent on the removal of the wall by this defendant. After the disposal of O.S.673 of 1989, the plaintiff issued a lawyer's notice on 20.03.1990 to pay a sum of Rs.10,000/- being the alleged damage for demolishing the wall. This defendant sent a reply notice setting forth the true facts. Family arrangement alleged in para 3-A is a myth.
(x) It is false to allege that the defendants 1 and 2 agreed to a division of the suit properties into two equal shares. Neither this defendant nor the second defendant ever consented to any such alleged family arrangement. The plaintiff was aware of the execution of the will by the second defendant in favour of the 3rd defendant on 26.05.1987 in and by which she bequeathed her 1/3 share in items 1 to 3 in favour of the 3rd defendant. The plaintiff's claim in respect of half share in items 1 o 3 is untenable. This defendant is not liable to any accounting in respect of the suit properties to the plaintiff. The suit is liable to be dismissed.
5. The case of the 3rd defendant as stated in the written statement would be as follows:
(i) The suit filed by the plaintiff is fraudulent, vexatious and is not sustainable in law and on facts. This defendant is the wife of the 1st defendant and daughter-in-law of the second defendant. After the death of her father-in-law the second defendant had been living with the 1st defendant till her demise during the pendency of the suit. The first defendant and this defendant took care of the 2nd defendant and were attending to all her needs. Hence the second defendant had developed an attachment towards this defendant.
(ii) Whileso, the second defendant bequeathed her 1/3 share in items 1 to 3 of the plaint in favour of this defendant under a will dated 26.05.1987. After the demise of the second defendant this defendant is absolutely entitled to 1/3 share in items 1 to 3 of the plaint schedule. The relationship of parties set forth in para 3 of the plaint and of the execution of the will dated 27.12.1955 by Guruvan is admitted.
(iii) The plaintiff an ex-army man wielding a lot of influence in the village filed the suit for partition in respect of his 1/3 share against the defendants 1 and 2. When the defendants have been residing in the house in item No.3, the plaintiff adatiously and unlawfully attempted to put a wall in the middle of the house by removing the main entrance which is a costly one and thereby prevented ingress and egress into the house. Hence the first defendant filed a suit O.S.673 of 1989 on the file of the District Munsif Court at Vellore against the plaintiff for preventive injunction and mandatory injunction for removal of the wall put up by the plaintiff. I.A.1182 of 1989 and 1183 of 1989 were filed for temporary injunction pending disposal of the suit. Thereafter the first defendant demolished the wall.
(iv) The first defendant had raised sugarcane crops by raising a loan of Rs.2,000/- from the Co-operative Bank at Pennathur. The family arrangement alleged to have been taken place on 18.07.1989 between the plaintiff and the defendants 1 and 2 is a myth and trottled out for the purpose of putting forth a false and untenable claim to a half share in the suit properties. No such family arrangement in the presence of panchayatars as alleged in para 3-A of the plaint.
(v) The plaintiff was aware of the execution of the Will by the second defendant in favour of this defendant on 26.05.1987 in and by which the second defendant bequeathed her 1/3 share in respect of items 1 to 3 in favour of this defendant. This defendant emphatically denies the allegations in para 5 and 6 of the plaint. This defendant is not liable to account in respect of the suit properties to the plaintiff. The suit is liable to be dismissed.
6. On the above pleadings, the trial court framed necessary issued and additional issues and entered trial. After appraising the evidence adduced by both the parties, the Trial court decreed the suit in respect of half share of the plaintiff in items 1 to 3 and 6 and dismissed the suit in respect of other items. However, it has ordered the accounting relief under Order 20 Rule 18 of C.P.C. In other respects the suit was dismissed regarding the declaration in respect of item 6 of the suit property.
7. Having aggrieved by the said judgment and decree passed by the Trial Court, the defendants 1 and 3 preferred an appeal before the First Appellate Court in A.S.No.28 of 2001, challenging the said decree. The plaintiff did not prefer any appeal or cross appeal in respect of the findings made against him. The First Appellate Court after hearing the arguments of both the parties had dismissed the appeal and thereby confirmed the judgment and decree passed by the Trial Court.
8. The defendants 1 and 3 have preferred the present appeal challenging the concurrent judgment and decree passed by the First Appellate Court before this Court. On admission of the Second Appeal, this Court has framed the following Substantial Questions of Law for consideration in this Second Appeal:
"(1)Whether the courts below have committed an illegality in observing that the non-mentioning about the Will in the written statement is a suspicious circumstance?
(2)Whether the lower appellate court has committed an illegality in doubting about the genuineness of the will merely because the existence of the will was indicated in the additional written statement dated 29.7.1996, ignoring the fact that the Will had been registered?"
9. Heard Mr.R.Balakrishnan, learned counsel for the appellants and Mr.T.Dhanyakumar, learned counsel for the respondent.
10. The learned counsel for the appellants/defendants 1 and 3 would submit in his argument that the judgment and decree passed by the First Appellate Court was simply reflecting the discussion had by the Trial Court and it had not framed various points to discuss and come to the correct conclusion so as to appreciate the judgment and decree passed by the Trial Court. He would also submit that the third defendant ought to have been awarded with 1/3 share which belonged to the second defendant who executed a Will in favour of the third defendant through Ex.B16. He would also submit that the will executed by the second defendant in respect of her share in Ex.B16 was a registered one and it was a true, valid and genuine document which would bind the plaintiff.
11. The learned counsel for the appellants/defendants 1 and 3 would also submit that the third defendant had examined the attesting witnesses D.W.2 and D.W.3 in order to prove the execution of the Will but the Courts below did not come to a conclusion of accepting the genuineness of the Will. He would also submit that the Will in Ex.B16 was proved in accordance with the provisions of Section 63(c) of Indian Succession Act and Section 68 of Indian Evidence Act. But the Courts below have found that the Will was not genuine, which is not correct.
12. The learned counsel for the appellants/defendants 1 and 3 would also submit that the reason given by the Courts below that the Will was not stated in the Written statement filed by the second defendant was not a correct reason since a Will was an ambulatory document which has to be kept secret by the Testator and it would at any time be revokable and therefore, there was no necessity to state about the Will in the written statement. He would also submit that the doubt and suspicion raised by the Courts below for non-reference of the Will in the written statement cannot make the Will as an in-genuine document because it was a registered document which could not be created later. He would cite a judgment of the Privy counsel reported in A.I.R. (36) 1949 Privy Council 151 (Hubert P. James versus Gulam Hussein Pakseema) for the principle that a Will is a secret and confidential document.
13. The learned counsel for the appellants/defendants 1 and 3 would also submit that the evidence of the attesting witnesses D.W.3 would show that the Testator was in a sound and disposing state of mind at the time of execution of the Will and D.W.3 has also spoken about the attestation. The reason stated that he had given the name of the scribe wrongly would not in any way dislocate his evidence regarding the attestation and sound and disposing state of mind. He would also submit that this discrepancy will not loom larger into any suspicious circumstances and the proof made through D.W.3 would be sufficient to clear those suspicious circumstances if any created by those discrepancies.
14. The learned counsel for the appellants/defendants 1 and 3 would rely upon catena judgments of the Hon'ble Apex Court reported in 2007 (2) CTC 172 (Niranjan Umeshchandra Joshi vs. Mridula Jyoti Rao and others), 2002 (1) CTC 244 (Madhukar D. Shende vs. Tarabai Aba Shedage), 2006-2-L.W.658 (Pentakota Satyanarayana and others v. Pentakota Seetharatnam and others), 2005 (1) CTC 443 (Sridevi and others vs. Jayaraja Shetty and others) and also a catena of judgment of this Court reported in 2010 (1) CTC 652 (Mariammal and another vs. 1.P.Indirani and five others), 2009 (4) CTC 705 (Appavu Mudaliar and 3 others Vs. Manickkammal and 6 others), 2008 (4) CTC 589 (Muniammal Vs.Annadurai (Deceased) and 7 others) and a judgment of the Calcutta High Court reported in AIR 1960 CALCUTTA 551 (V 47 C 150) (1) (Ajit Chandra Majumdar v. Akhil Chandra Majumdar), a judgment of the Sikkim High Court reported in AIR 1980 SIKKIM 33 (Sonam Topgyal Bhutia v. Gompu Bhutia) in support of his arguments.
15. Relying upon those judgments, the learned counsel for the appellants/defendants 1 and 3 would request the Court that the advance ageing of the Testator would not lead to any presumption as to the negative state of sound disposition of mind of the Testator at the time of execution of the Will.
16. The learned counsel for the appellants/defendants 1 and 3 would also submit that even otherwise, the evidence of D.W.3 would go to show that the Testator was hale and healthy and was in a sound and disposing state of mind at the time of execution of Ex.B16 Will. He would also submit in his argument that once, the genuineness of the Will has been proved as per the provisions of Section 63(c) of Indian Succession Act and Section 68 of Indian Evidence Act, the suspicious circumstances, if any, cast upon would be cleared and the plaintiff who is disputing the genuineness of the Will on the ground of fabrication and fraud has to prove such fabrication as well as the fraudulent act done against the propounder.
17. The learned counsel for the appellants/defendants 1 and 3 would therefore submit that the Courts below have erroneously appraised the evidence and had come to the conclusion of dis-believing the Will which was otherwise proved by the defendants. He would also submit that since the Courts below had concurrently arrived at a conclusion, which is contra to the evidence adduced and the principles of law, this Court has to, necessarily, interfere and render substantial justice to the parties and therefore, the Second Appeal preferred by the defendants 1 and 3 has to be allowed.
18. The learned counsel for the appellants/defendants 1 and 3 would also submit that the reasons given by the Trial Court for dis-believing the evidence are not promptly discussed by the First Appellate Court in order to correct the judgment of the Trial Court, instead, it has simply confirmed the findings reached by the Trial Court which is not in accordance with law. Therefore, he would submit that this Court may set aside the judgment and decree passed by the First Appellate Court in concurrent with the Trial Court and thereby to allow the Second Appeal and to modify the judgment and decree passed by the Trial Court by awarding 1/3 share to the plaintiff, 1/3 share to the first defendant and 1/3 share to the third defendant and a modified preliminary decree may be passed.
19. The learned counsel for the respondent/ plaintiff would submit in his argument that the Courts below have promptly appraised the evidence and had come to a correct conclusion of dis-believing the evidence of the first defendant and did not approve the evidence towards the proof of the Will, said to have been executed by D2 produced in Exhibit B16. He would also submit that the Trial Court had elaborately discussed the evidence and had come to a conclusion that the evidence of D.W.3 was not sufficient and was not reliable because he was not able to give the correct name of the scribe as T.A.Natarajan, instead, he has deposed that the scribe was one Kumar and was belonging to the same village in more than one time and the age of the Testator was erroneously told as 75 years, by D.W.3, whereas, the other witnesses told that she was aged at 95 years and the understanding capacity and the sound and disposing state of mind would not be normally clear for a lady aged about 95 years, when especially, in the Will she had stated that she was sufficiently aged more.
20. The learned counsel for the respondent/ plaintiff would also submit that the said execution of the Will was not disclosed by the second defendant in the written statement filed along with the first defendant and the same was not also disclosed when the plaint was amended by the plaintiff including the plea of family arrangement reached in the year 1989, in the additional written statement filed by the second defendant along with the first defendant. He would further submit that when the plaintiff has pleaded a family arrangement that the second defendant had relinquished her 1/3 share in the suit properties in favour of the plaintiff and the first defendant, the alleged disposition of her 1/3 right in the suit properties through the Will ought to have been necessarily be pleaded. But it was not done so and therefore, there would be a serious doubt or suspicion over the execution of the said Will.
21. The learned counsel for the respondent/ plaintiff would also submit that the alleged execution of the Will would not have been known to the second defendant and if really it has been executed by her, she would have mentioned during her lifetime when the case was filed, which was pending throughout till her death in the year 1992. He would also submit that the Trial Court as well as the First Appellate Court had rightly come to the conclusion that the suspicious circumstances shrouded over Ex.B16 Will, was not cleared by the evidence of D.W.3 and other cogent evidence which are necessary to clear the said suspicious circumstances.
22. The learned counsel for the respondent/ plaintiff would also submit that the question of proof of the Will Ex.B16 was a fact and it was decided by the Trial Court as Well as the First Appellate Court concurrently and the findings of the First Appellate Court regarding the fact is certainly of final one and it cannot be agitated in an apeal filed under Section 100 of C.P.C.
23. The learned counsel for the respondent/ plaintiff has also cited a judgment of the Hon'ble Apex Court reported in 2008 (1) CTC 446 (Krishnan vs. Backiam and another) in support of his argument. Similarly, he would also cite a judgment of the Hon'ble Apex Court reported in AIR 2008 Supreme Court 1749 (Larger Bench for the same position of Law) (Kashmir Singh v. Harnam Singh and another). A judgment of this Court reported in 2008 (2) CTC 745 (C.R.Chenthilkumar vs. K.Sutha) was also cited for the same principle of law.
24. Furthermore, The learned counsel for the respondent/ plaintiff would also submit in his argument that the evidence of P.W.3 is not sufficient to prove the genuineness of the Will. Whereas, it is more contrary and suspicious to rely upon the evidence of D.W.3. As an Attester, he would also submit that even though he was working as a Tamil Teacher, he has uttered lie by saying that he was present at the time of execution of the Will and she was aged only 72 years at the time of execution of the Will, whereas, she was aged at more than 95 years.
25. The learned counsel for the respondent/ plaintiff would also submit that the veracity of the evidence of D.W.3 need not be accepted since he has stated the name of the scribe as Kumar on two occasions instead of the actual scribe T.A.Natarajan. In such circumstances, the evidence of D.W.3 would not be sufficient for the proof of a Will under Section 63(c) of Indian Succession Act and Section 68 of Indian Evidence Act. For that, he has cited a judgment of Madya Pradesh High Court reported in AIR 2001 MADYA PRADESH 250 (Kishan Singh Ahluwalia v. Smt. Sheela Saxena and others). He would also bring it to the notice of the judgment of a Larger Bench of the Hon'ble Apex Court reported in AIR 1990 Supreme Court 396 (Kalyan Singh v. Smt. Chhoti and others) in support of his argument.
26. The learned counsel for the respondent/ plaintiff would further submit in his argument that when the propounder has not established the execution of the Will after dispelling the suspicious circumstances shrouded over the Will, the said Will produced by the propounder is un-believable. In support of his argument, he has cited a judgment reported in 2009 (3) CTC 801 (Premavathi and 3 others vs. Sundararajan and 2 others).
27. The learned counsel for the respondent/ plaintiff would also submit that the Trial Court had come to a conclusion of passing a preliminary decree in favour of the plaintiff in respect of his = share in items 1 to 3 and 6 of the suit properties and dismissed the claim over other properties and the declaratory relief sought for by the plaintiff after analysing the entire evidence produced before it. The said appraisal of evidence was not affected by any perversity or biased attitude. Similarly, the First Appellate Court had also gone through the entire evidence and had found that the evidence of D.W.3 was not reliable. Therefore, the suspicious circumstances shrouded over the Will Ex.B16 was not cleared and the said Will was not believable and thus confirmed the judgment and decree passed by the Trial Court. The First Appellate Court being the final fact finding Court and the appraisal of appreciation of the evidence done by the First Appellate Court was not found to be perverse or un-reasonable or violating the principles of law, there is no necessity for this Court to interfere and to upset the concurrent judgment and decree passed by the First Appellate Court. Therefore, he request the Court to dismiss the appeal and confirm the judgment and decree passed by the Courts below.
28. I have given anxious thoughts to the arguments advanced on either side.
29. The suit was originally filed by the plaintiff seeking for partition and separate possession of his 1/2 share in respect of items 1 to 5 in the suit properties and for a declaration that he was the absolute owner of item 6 of the suit properties and for accounting for the income derived by the defendants in respect of his share in the suit properties under Order 20 Rule 12 of C.P.C.
30. The said suit was filed by the plaintiff against his brother, the first defendant and the mother, the second defendant. The claim was originally made towards 1/3 share in the suit property as the plaintiff and the defendants 1 and 2 were the legal heirs left out by the father Guruvan through a Will. The said Will has been produced under Ex.B16. The property was allotted to the plaintiff and the defendants 1 and 2. However, the plaint was subsequently amended that there was a family arrangement reached inbetween the parties during the pendency of the suit, under which, the second defendant had left her share in favour of the plaintiff and the first defendant and therefore the plaintiff's share was swelled into 1/2 share from 1/3 share and accordingly the claim was made by the plaintiff for 1/2 share in the suit properties. However, the said family arrangement in the year 1959 was denied by the defendants 1 and 2.
31. Thereafter, the second defendant died in the year 1992 and the plaintiff and the first defendant were also recorded as the legal representatives of the second defendant by the Trial Court. In the meantime, the third defendant had come forward with a plea that she was the legal heir of the deceased second defendant by virtue of a registered Will dated 26.05.1987 executed by the second defendant and since the third defendant was claiming right over the said share belonging to the second defendant, she was ordered to be impleaded as the third defendant in the suit. The third defendant also filed a written statement regarding the devoluation of 1/3 share of the second defendant to her through the said Will dated 26.05.1987.
32. On the basis of the claim over the suit properties, evidence has been adduced and the Trial Court had come to the conclusion regarding the existence of items 1 to 3 and 6 and had disallowed the declaration relief regarding the item 6 of the suit properties. But found that the plaintiff was entitled to 1/2 share in the suit properties by holding that the Will propounded by the D3 was not a genuine one. The First Appellate Court had also come to the conclusion that the non-mentioning of the execution of the Will in the written statement as well as in the Additional Written Statement filed by the second defendant created suspicious circumstances regarding the genuineness of the Will.
33. It has also been reasoned that the said execution of the Will was not mentioned in the additional written statement filed by the defendants 1 and 2, even though a claim was made by the plaintiff in the amended plaint that there was a family arrangement inbetween the plaintiff and the defendants 1 and 2 and in that family arrangement which took place in the year 1989, the second defendant relinquished her claim over the suit properties in favour of the plaintiff and the first defendant who are to take equally.
34. The First Appellate Court had further reasoned that when such family arrangement and the relinquishment of the share belonging to the second defendant was claimed, the second defendant ought to have mentioned or disclosed the execution of the Will, as to the disposition of her share which ought to have been essentially disclosed for the purpose of denying the allegations made by the plaintiff.
35. The finding reached by the First Appellate Court has been challenged on the sole ground that the evidence of D.W.3 was perfectly in accordance with the provisions of Section 63(c) of Indian Succession Act and Section 68 of Indian Evidence Act and therefore, it cannot be discarded even there are discrepancies in respect of other matters not related to the execution and attestation. According to the submission of the learned counsel for the appellant, there was no suspicious circumstance arising over the said discrepancies spoken by D.W.3 in his evidence.
36. The judgment produced by the learned counsel for the defendants reported in 2007 (2) CTC 172 (Niranjan Umeshchandra Joshi vs. Mridula Jyoti Rao and others), would speak about the suspicious circumstances in the relevant passages which would run as follows:
"32.The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai Shedage, 2002 (1) CTC 244 : 2002 (2) SCC 85 and Sridevi & Ors. v. Jayaraja Shetty & Ors., 2005 (1) CTC 443 : 2005 (8) SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.
33.There are several circumstances which would have been held to be described by this Court as suspicious circumstances:
(i)When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will;
(ii)When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii)Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit.
See H.Venkatachala Iyengar v. B.N.Thimmajamma & Ors., AIR 1959 SC 443 and Management Committee, T.K.Ghosh's Academy v. T.C.Palit & Ors., AIR 1974 SC 1495."
37. In the aforesaid judgment, the circumstances under which suspicious circumstances could have been drawn were explained. However, in a judgment of the Hon'ble Apex Court reported in 2002 (1) CTC 244 (Madhukar D. Shende vs. Tarabai Aba Shedage), which would lay down the proposition of law regarding the proof. It would run as follows:
"8........ The conscience of the court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict positive or negative.
9.It is well-settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. 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. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would 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. The factors, such as the will being a natural one or being registered or executed in such circumstance and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the court would not return a finding of 'not proved' merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance."
38. In the aforesaid judgment, it has been laid down that if there is any un-exceptional circumstances in the execution of Will, then only there would be certainly arising of suspicious circumstances.
39. It has also been categorically laid down in a judgment of this Court reported in 2006-2-L.W.658 (Pentakota Satyanarayana and others v. Pentakota Seetharatnam and others) which would run as follows:
"25...... 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 atestation. 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."
40. Relying upon the aforesaid judgment, it was argued that the endorsement made by the Sub-Registrar as spoken by D.W.3 would go to show that the Will was executed in the course of execution by the Testatrix.
41. Reliance was also placed by the learned counsel for the appellants/ defendants 1 to 3 in 2005 (1) CTC 443 (Sridevi and others vs. Jayaraja Shetty and others), in which it has been categorically laid down regarding the delay in producing the Will. The relevant passage would run as follows:
"11.It is well settled proposition of law that mode of proving the Will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act, 1925. 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 proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the Court before the Will can be accepted as genuine, proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. In case the person contesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same. As to what are suspicious circumstances have to be judged in the facts and circumstances of each particular case."
42. Based upon the dictum laid down in the said judgmnet, it has been vehemently argued that the evidence of D.W.3 dispel the suspicious circumstances and it is for the plaintiff who opposed the Will that it was created by the exercise of undue influence, fraud or coercion, to prove the said circumstances. In the said judgment it has been categorically mentioned that the fraud, fabrication and un-due influence, coercion have to be proved by the person who put forth the said plea provided the burden on the propounder should have been completely discharged on the basis of the trust-worthy evidence adduced by the attesting witnesses.
43. However, a judgment of the Hon'ble Apex Court as submitted by the learned counsel for the respondent/ plaintiff as reported in AIR 1990 Supreme Court 396 (Kalyan Singh v. Smt. Chhoti and others) would lay down a similar principle. The relevant passage in paragraph 20 would be helpful to come to the correct conclusion which runs as follows:
"20.It has been said almost too frequently to require repetition 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 be determined merely by considering the evidence produced by the propounder. In order or judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to 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."
44. The principle laid down by the Hon'ble Apex Court would go to show that the trust-worthy of any witness could be adjudged by the Court not only with his testimony and demeanour, but also to consider all the circumstances brought in the evidence.
45. Whether the suspicious circumstances as pointed out in the evidence of D.W.3 has been cleared by his evidence itself is a question. No doubt, D.W.3 an attesting witness who was examined by the propounder of the Will, namely, the third defendant. The said witness was a retired Tamil Teacher. However, he would admit in his cross examination that the first defendant, the husband of the third defendant was working in his fields to raise the crops.
46. The evidence of D.W.3 was certainly a contradictory evidence in mentioning the name of the scribe of the Will. He deposed that the Will was written by one Kumar of the same village. But, actually, the Will was said to have been written by one T.A.Natarajan. The evidence of P.W.3 would insist on two occasions that Kumar was the person, who wrote the Will as per the dictation of the Testatrix. When he was very much confident over the identity of the scribe in writing the Will which is contrary to the fact, how could his evidence be relied upon, de hors the status of the person.
47. He would also depose that the Testatrix was aged 72 years at the time of execution of the Will. The admitted case is that the Testatrix was aged 95 years at the time of execution of the Will. She was stated to be very much conscious and understanding things at the time of execution of the Will. If really the evidence of D.W.3 would disclose that she was aged about 95 years and despite her age, she was able to understand the things happened around her and was dictating the terms of the Will to the scribe and understanding while it was read by the scribe and so on, that could be considered as an evidence given in the natural course of events. But D.W.3 evidence would go to show that the Testatrix was only aged about 75 years so as to show that she was understanding everything at the time of execution of the Will.
48. In the background of these discrepancies in the evidence of D.W.3, I could see that the testimony of D.W.3 is hit by serious doubt and suspicion. Such suspicion could have been removed by examining the scribe or any other person who was present at the time of execution of the Will.
49. The argument of the learned counsel for the appellant was that the Will was a registered one and therefore, the Court could presume the truth and the valid execution. But the point to be proved before the Court of law is whether the Will executed by the Testator was a true and genuine document, since, the Testator would not be available for speaking about the execution. If really, the Testatrix had executed the Will in the year 1987 on 26.05.1987, she would have consciously known about the execution of the said Will in favour of the third defendant.
50. The learned counsel for the defendants 1 and 3 would draw help from the judgment of a Privy counsel reported in A.I.R. (36) 1949 Privy Council 151 (Hubert P. James versus Gulam Hussein Pakseema) in which the following passage is found relevant:
"[15] It is strange that none of the three judges who dealt with this case in India, and none of the counsel engaged on behalf of the appellant, nor the counsel who signed the appellant's case before the Board seem to have considered that the Court was doing anything unusual in acting upon the will of a living person, a will, too, which had been revoked before the commencement of the suit. The document was throughout referred to as a will and apparently regarded as entitled to the same degree of solemnity and importance as would have attached to it had it been in truth a will, that is the will of a deceased person. A will takes effect on the death of the executant and during his lifetime is an ambulatory document, revocable at any moment, having no legal effect whatsoever. It is a secret and confidential document which the executant is never ordered to produce. In India, where a will may be deposited with the Registrar under the Indian Registration Act, the terms of the Act ensure that the contents remain secret until the death of the executant."
51. According to the dictum laid down by the Privy counsel, Will is a secret and ambulatory document.
52. The learned counsel for the defendants 1 and 3 would argue that when the Will was an ambulatory document, how it could have been disclosed by the second defendant and the non-disclosure in the written statement would not create any suspicious circumstances.
53. She had filed a written statement along with the first defendant in answer to the plaint averments. The plaintiff who claimed 1/3 share in the suit properties had increased his claim of share to 1/2 by stating a subsequent event, that in the year 1989, a family arrangement has been reached inbetween the parties in which the second defendant mother had relinquished her share in favour of the plaintiff and first defendant and thereby, the plaintiff was entitled to 1/2 share.
54. In answer to the said amended plaint, the second defendant had filed a written statement along with the first defendant in which she has not disclosed the execution of the Will while denying the family arrangement. It was the crucial time that when the plaintiff was claiming 1/2 share in the suit property, if really, the Will was executed with the knowledge of and by the second defendant, it would have been disclosed that second defendant executed a Will in favour of the third defendant and therefore, it could not be possible for the second defendant to relinquish her share in favour of the plaintiff and the first defendant. Such omission to mention the execution of the Will by the second defendant would certainly create further suspicious circumstances. The said omission to mention about the execution of the Will, would show that the testatrix, second defendant was not aware of the contents and the execution of the Will and the Will ought to have been a manipulated or created one.
55. Even though the Will is considered to be an ambulatory document, it should have been referred to by the second defendant, when the plaintiff had pleaded a family arrangement on the relinquishment of the share of second defendant in favour of the plaintiff and the first defendant. Therefore, the Courts below have rightly held that the omission to mention the execution of the Will in the Written statement filed by the second Defendant on both occasions would be a serious thing. Even the Will was said to have executed by the Testatrix, second defendant. The non-mentioning of the said document which is an important defence in the written statement would also create a suspicion that the said document could have been registered on the pretext of another document.
56. When the evidence of D.W.3 is not reliable, the suspicious circumstances shrouded over the execution of the Will cannot be considered as cleared. The judgments of the Hon'ble Apex Court referred supra would categorically lay down that if suspicious circumstances are not cleared, there would be no clear proof of attestation and execution of the Will and it would not comply with the provisions of Section 63(c) of Indian Succession Act and Section 68 of Indian Evidence Act. Therefore, it is quite clear that the First Appellate Court had rightly come to a conclusion of confirming the judgment and decree passed by the Trial Court which was based on support of the evidence adduced before the Trial Court.
57. For the above discussions, I find no perversity or any grave error in applying the principles of law, to the facts of the case. Both the Courts below have pursued the evidence properly and appreciated them correctly to come to a conclusion. The questions of law framed by this Court are therefore decided against the appellant. Therefore, I find no reasons to interfere in the judgment and decree passed by the First Appellate Court in concurrent with the judgment and decree passed by the Trial Court.
58. In fine, I am of the considered view that the judgment and decree passed by the First Appellate Court are liable to be confirmed and accordingly, the Second Appeal filed by the appellant/ defendants 1 and 3 is dismissed. Considering the relationship in between the parties, both are directed to bear their respective costs in this appeal. Consequently, C.M.P.No.17657 of 2002 is closed.
.08.2012 Index :Yes/No Internet :Yes/No pri To
1.Principal District Judge, Vellore.
2.Subordinate Judge, Vellore.
V.PERIYA KARUPPIAH,J., pri Pre-delivery Judgment in S.A.No.2023 of 2002 14.08.2012