Madras High Court
K.S.Venugopal vs R.Meenakshi on 23 September, 2011
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :23.09.2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A.No.606 of 1997 K.S.Venugopal ... Appellant/Respondent/Plaintiff Vs. R.Meenakshi ... Respondent/Appellant/10th Defendant Appeal filed under Section 100 of Code of Civil Procedure, against the Judgment and Decree dated 25.07.1995 in A.S.No.12 of 1995 on the file of the learned Subordinate Judge, Dharapuram, reversing the Judgment and Decree of the trial Court dated 14.12.1994 in O.S.No.597 of 1987 on the file of the District Munsif Court, Dharapuram. For Appellant : Mr.S.V.Jayaraman Senior Counsel For M/s.I.C.Vasudevan For Respondent : Mr.R.Subramanian J U D G M E N T
The Appellant/Respondent/Plaintiff has preferred the present Second Appeal before this Court as against the Judgment and Decree dated 25.07.1995 in A.S.No.12 of 1995 passed by the Learned Subordinate Judge, Dharapuram.
2.Before the trial Court, the Appellant/Respondent/Plaintiff, in the suit, had sought the relief of Declaration that the 'A' schedule property mentioned in the Plaint belonged to him as per the Will dated 07.06.1987 executed by Gurusamy Iyer and in respect of the relief of possession to be handed over to the Appellant/Respondent/Plaintiff by the Defendants 1, 2 and 5 to 15 and further, sought the relief in respect of 'B' schedule property.
3.The trial Court framed 1 to 4 issues for adjudication in the suit. During the trial of the suit, on behalf of the Plaintiff (Appellant/ Respondent), witnesses P.W.1 to P.W.4 were examined and Exs.A.1 to A.12 were marked. On the side of the Defendants, witnesses D.W.1 to D.W.4 were examined and Exs.B.1 to B.62 were marked.
4.The trial Court, after contest and on an appreciation of oral and documentary evidence available on record, in the Judgment in O.S.No.597 of 1987, had held that the Appellant/Respondent/Plaintiff was entitled to get the relief of Declaration in respect of 'A' schedule property and in respect of 'B' schedule property, it further held that the Appellant/Respondent/Plaintiff was entitled to recover possession from the Defendants 1 and 2 and resultantly, passed a Decree without costs.
5.Feeling aggrieved against the Judgment and Decree of the trial Court dated 14.12.1994 in O.S.No.597 of 1987, the Appellant/10th Defendant filed A.S.No.12 of 1995 before the Learned Subordinate Judge, Dharapuram as an aggrieved person.
6.The First Appellate Court viz., the Learned Subordinate Judge, Dharapuram, in Appeal, came to the conclusion that Ex.A.1-Will was not proved and answered in favour of the Appellant and also held that the plea of the Respondent/Plaintiff that the Appellant/10th Defendant should be evicted from the 'B' schedule property was not to be accepted and consequently, allowed the Appeal by setting aside the Judgment and Decree passed by the trial Court and dismissed the suit filed by the Respondent/Plaintiff with costs.
7.Being dissatisfied with the reversing Judgment and Decree dated 25.07.1995 in A.S.No.12 of 1995 passed by the First Appellate Court, the Appellant/Respondent/Plaintiff had preferred the instant Second Appeal before this Court.
8.At the time of admission of the Second Appeal, this Court has framed the following Substantial Question of Law:
"Whether the Will executed by Gurusamy Iyer has been proved with reference to Section 68 of the Evidence Act and the Judgment of the first appellate Court suffers from non-consideration of material evidence in that behalf."
The Contentions, Discussions and Finding on Point:-
9.According to the Learned Senior Counsel for the Appellant/ Respondent/Plaintiff, the First Appellate Court failed to appreciate the uncontradictory disinterested evidence of witnesses P.W.2 and P.W.3 which were relied on by the trial Court in discharging the heavy onus of proof cast on P.W.1 and in proving the truth and genuineness of the Ex.A.1-Will.
10.It is the further contention of the Learned Senior Counsel for the Appellant that witnesses P.W.2 and P.W.3 had deposed before the trial Court, the circumstances under which the thumb impression of the testator was taken. But, these aspects of the matter were not adverted to by the trial Court in real perspective.
11.Advancing his arguments, it is the submission of the Learned Senior Counsel for the Appellant/Respondent/Plaintiff that the First Appellate Court had omitted to consider Exs.B.58 to B.62 [Petition copy of Gurusamy Iyer addressed to Periyar District Collector, Certified copy of Sale Deed dated 31.01.79 executed by S.S.Gurusamy Iyer in favour of Muthulakshmi Ammal, the Finger Print copy of S.S.Gurusamy and others with negative, the Finger Print of S.S.Gurusamy with negative, S.S.Gurusamy Iyer Finger Print Photo] which were filed before the trial Court to point out the existence of suspicious circumstances surrounding the execution of the Will. Also, the onus of proof could not shift to the Appellant/Respondent/Plaintiff to explain away the purported suspicious circumstances. In fact, it was for the Defendants to call for the expert witness to prove the genuineness of Exs.B.58 to B.62 produced from their custody.
12.Expatiating his submissions, the Learned Senior Counsel for the Appellant/Plaintiff contends that the First Appellate Court had failed to appreciate that in any event, even D.W.2 admitted that the signatures of the testators found in Exs.B.58, B.7 and B.16 were different and therefore, it was necessary to compare the signatures of the deceased when he affixed his thumb impression only in the Will.
13.The Learned Senior Counsel for the Appellant projects an argument that when the First Appellate Court after rejecting the Ex.B.16-Pronote as not a true one and also not contained the signature of the deceased should have held that Exs.B.58 and B.62 were created for the purpose of the case in the absence of evidence on the side of the Defendants to prove the truth and genuineness of Exs.B.58 to B.62.
14.Yet another contention put forward on the side of the Appellant/Plaintiff was to the effect that the First Appellate Court failed to note the clear recitals in Ex.A.1-Will dated 07.06.1987 which are clear and is evident to show that the hands of the deceased were in a shaky condition and as such unable to put his signature.
15.The stand of the Appellant/Respondent/Plaintiff is that the First Appellate Court must have held that reference to Ex.A.1-Will dated 07.06.1987 in Ex.A.23 and the production of prior title deeds of the deceased Exs.A.4, A.7 and A.10 from P.W.1's custody would clearly prove that Ex.A.1-Will was a true and genuine one which was validly executed in the presence of P.W.2 and P.W.3.
16.The Learned Senior Counsel for the Appellant/Respondent/ Plaintiff submits that the First Appellate Court ought to have rejected Ex.B.59-Certified Copy of Sale Deed dated 31.07.1979 filed by P.W.3 (Sub Registrar), inasmuch as the said document would not contain the thumb impression of the deceased for the purpose of comparison with that of the Will.
17.Lastly, it is the submission of the Learned Senior Counsel for the Appellant that the First Appellate Court failed to take note of the vital admissions made by P.W.1 to P.W.4 which clearly point out the falsity of the case of the other side.
18.Per contra, it is the contention of the Learned Counsel for the Respondent/Appellant/10th Defendant that the First Appellate Court analysed meticulously the oral and documentary evidence available on record and came to the right conclusion in holding that Ex.A.1-Will dated 07.06.1987 was not proved in a proper manner and also held that the plea of the Plaintiff requiring the Respondent/10th Defendant to vacate from the 'B' schedule property was an unacceptable one and allowed the Appeal with costs, which need not be disturbed.
19.The Learned Senior Counsel for the Appellant/Respondent/ Plaintiff cites the decision of this Court in B.Parvathy V. Ramakrishna Mission rep. By duty authorised Power Agent Swami Amirthanantha & others, 2001 (2) T.L.N.J. 89 at page 90 wherein it is held that 'while reversing the judgment and decree of the trial Court, the lower appellate court ought to have given reasonings as to how the trial Court is wrong. But, the lower appellate court has not given any such finding in its judgment.'
20.He also relies on the judgment of this Court in Nambi Iyyengar and another V. The District Collector, Tirunelveli and others, 2001 (2) T.L.N.J. 312 at page 313 wherein it is held that 'it is the duty of the appellate court to analyse and consider the trial Court judgment with due and proper application of mind.'
21.Yet another decision is relied on the side of the Appellant/ Plaintiff in A.Mohan Doss and others V. The Revenue Divisional Officer, Madurai and another, 2003 (2) T.L.N.J. 76 at page 80 wherein it is, inter alia, held that '... In fact, it is a settled position of law that to reverse a well considered finding given by the trial Court, there should be valid and convincing reason; but unfortunately, no such reason has been given as to why the overwhelming documents have to be ignored. The approach by the lower appellate court is not proper and correct.'
22.The Learned Senior Counsel for the Appellant draws the attention of this Court to the decision in Hindu Community in General and Citizens of Gobichettipalayam V. The Commissioner, Hindu Religious and Charitable Endowment, Madras and 19 others, 2005-2-L.W.-627 at page 686, 687, 688 in paragraph 114, wherein it is laid down as follows:
"114. We are of the view that the dictum laid down by the Supreme Court in H.Venkatachala case (AIR 1959 SC 443) would apply to the facts of the case. It is a case where there are suspicious circumstances surrounding the Will. Though there is a statement in the Will that the hands of the testatrix were shaky and she could not sign the document and hence, she put her thumb impression, the evidence of witnesses who were examined on behalf of defendants 4 and 5 clearly establish that Rangammal was able to sign on the date of execution and her eye sight was normal and she was hale and healthy and in spite of the same, it is stated that she affixed her thumb impression, for which there is no explanation from the side of the defendants 4 and 5. There is also no explanation for her thumb impression at the time of registration when the case of the defendants 4 and 5 was that she could sign once or twice but, she could not sign 4 or 5 times. On the other hand, it is seen from Ex.A-16 that when they presented the Will ( Ex.A-5) for registration, Palaniappa Chettiar and Rangammal refused to put thumb impression, but insisted to sign and that shows her attitude and there is documentary evidence to show that she was able to sign. We therefore hold that the statement in the Will that she was not able to sign and hence, affixed her thumb impression creates a genuine suspicion, particularly when the evidence let in on behalf of the defendants is to the effect that Rangammal was able to sign on the date of execution of the document which is contrary to the statement made in the Will and the suspicion has not been removed by the defendants 4 and 5. We also find that when the Will says that she was bedridden, the evidence is that she was hale and healthy and she was able to move about. The disposition made in favour of third parties is quite unnatural as she would not have acted against her deceased husband' s direction but, on the other hand, normally she would have respected his directions in the earlier Will, Ex.A-5 that the properties should go to charities as she led a long married life with her husband. It is for the defendants 4 and 5 to remove the suspicious circumstances created in getting the thumb impression in the Will, Ex.B-109, particularly when the evidence let in on the side of the defendants show that Rangammal was not affected by paralysis and she had a normal eye sight and her hands were not shaky and she had no nervous disability. We are of the view, the defendants 4 and 5 have not discharged the burden cast on them to dispel the suspicious circumstances surrounding the Will and satisfy the Court that it was her last will. Learned Subordinate Judge had the opportunity to see the demeanour of the witnesses and he has held that the suspicious circumstances surrounding the execution of the will were not cleared and his judicial conscience was not satisfied to accept the will (Ex.B-109) as a valid, true, genuine and last will of Rangammal. We therefore hold that the defendants have not removed the suspicious circumstances surrounding the execution of the Will to the satisfaction of the Court for accepting the Will as genuine and last Will of Rangammal. We also hold that the defendants 4 and 5 failed to establish that Ex. B-109 is the true, genuine and last Will of Rangammal. We fully concur with the reasonings and the conclusion of the trial Court. Apart from the reasonings of the trial Court, we also hold that the defendants 4 and 5 have not discharged the burden cast on them to remove the legitimate suspicion surrounding the execution of the Will. We hold that the discrepancies in the evidence cannot be said to be immaterial as the statements made in the Will are contrary to th e depositions of the witnesses examined on their behalf and in may respects, their statements made in the evidence are contrary to the written statement of the defendants 4 and 5. On appreciation of the entire evidence on record, we come to the conclusion that the Will dated 27.11.1980, Ex.B-109 alleged to have been executed by Rangammal is not a true and genuine Will of hers and it is not her last Will also."
23.However, the Learned Counsel for the Respondent/Appellant/ 10th Defendant cites the decision of the Hon'ble Supreme Court in K.Laxmanan V. Thekkayil Padmini and others, 2009-3-L.W.854 at 855 in paragraphs 20, 21, 22, 23, 25, 26 and 27, it is observed as follows:
"So far as a Deed of Will is concerned, the position in law is no longer in doubt for the onus of proving the Will is on the propounder. The propounder has to prove the legality of the execution and genuineness of the said Will by proving absence of suspicious circumstances surrounding the said Will and also by proving the testamentary capacity and the signature of the testator. Once the same is proved, it could be said that the propounder has discharged the onus.
When there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the Court and only when such responsibility is discharged, the Court would accept the Will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the Court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. In such a case, the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator.
So far as Section 68 of the Act is concerned, it categorically provides that a Will is required to be attested and therefore, it cannot be used as evidence until at least one of the attesting witnesses is called for the purpose of proving its execution provided such attesting witness is alive, and subject to the process of the court and capable of giving evidence.
In the present case the scribe and one of the attesting witnesses to the Will namely Vasu died before the date of examination of the witnesses. The second attesting witness namely Gopalan was also not in good physical condition inasmuch as neither was he able to speak nor was he able to move, the fact which is proved by the deposition of the doctor examined as DW.2. Consequently, as the execution of the Will cannot be proved by leading primary evidence, the propounder i.e. The appellant herein was required to lead secondary evidence in order to discharge his onus of proving the Will as held by this Court to be permissible.
No attempt was made by the appellant to prove and establish the mental and physical condition of the testator at the time of execution. Rather the respondent has proved that Chathu, the father of the appellant, was at the time of the alleged execution of the Deed of Will was 82 years of age and he was suffering from serious physical ailments and was not mentally in a good state of mind.
In view of the aforesaid suspicious circumstances brought on record regarding the execution of the Will and the same having not been proved in accordance with law, we find no reason to take a different view than what is taken by the first appellate court as also by the High Court so far as it concerns the Deed of Will.
This leaves us with the responsibility of considering the legality of execution of the Deed of Gift. Incidentally, the said Deed of Gift was also executed on the same day as that of the Will which was held to be not proved and established in accordance with law and was discarded by both the appellate courts."
Also, in the aforesaid decision at page 856 at 857, in paragraph 36, it is held as follows:
"Taking all the factors as stated hereinbefore into consideration and also noticing the fact that execution of the Will, which was executed on the same day as that of the Gift Deed, we hold that even the said document is found to be of suspicious nature and therefore the said deed is also held to be not duly proved."
24.In the Plaint, the Appellant/Respondent/Plaintiff had averred that the Plaint 'A' and 'B' Schedule properties belonged to the 1st Defendant's brother S.S.Gurusamy Iyer. Earlier, the said Gurusamy Iyer served as Karnam of Sankarandampalayam and he resigned the job of Karnam owing his ill health. Gurusamy's wife died 7 years before from now. Gurusamy Iyer has no male or female heirs. The Appellant/ Respondent/Plaintiff was very close to the Gurusamy Iyer's family. The Appellant/Plaintiff and his family met the medical and food expenses of Gurusamy Iyer. All the expenses of the said Gurusmay have been met only by the Appellant/Plaintiff. In O.S.No.48 of 1965 a decree has been passed on 25.07.1965 by the Dharapuram District Munsif Court that Plaint 'A' schedule property belong to said Gurusamy. The said Gurusamy in E.P.R.No.245 of 1965 obtained possession of the Plaint 'A' schedule property through Court.
25.The 1st Defendant was the sister of Gurusamy Iyer. The 2nd Defendant was the son of the 1st Defendant. Before his death, S.S.Gurusamy on his own volition, without anybody's compulsion bonafidely on 07.06.1987 with consciousness executed a Will. Based on the Will, the Appellant/Plaintiff got the Plaint 'A' schedule property. In 'A' schedule property the eastern side room and the upper portion southern side room let out by Gurusamy to Defendants 3 and 4. The said Gurusamy expired on 12.07.1987 at Dharapuram. The Appellant/ Plaintiff gave a sum of Rs.2,000/- to the 2nd Defendant towards funeral expenses. The centre room of the 'A' schedule property was asked by the Defendants 1 and 2 from the Appellant/Plaintiff for the purpose of performing the funeral rites of Gurusamy. The Appellant/Plaintiff gave his consent for the same and on 12.07.1987 handed over the possession of 'B' schedule property. The Defendants 1 and 2 agreed to hand over possession of the 'B' schedule property within a month's time after performing the funeral rites of Gurusamy. Defendants 1 and 2 were in possession of the room mentioned in 'B' schedule property. The Appellant/Plaintiff on 15.08.1987 and 15.09.1987 demanded the Defendants 1 and 2 to hand over the possession of the room to him. But the 1 and 2 Defendants were procrastinating the matter and now claim a right in 'B' schedule room.
26.After the death of Gurusamy, the Appellant/Plaintiff in 'A' schedule property let out an eastern side room to the 3rd Defendant on a monthly rent of Rs.100/- on 01.08.1987 and that he and 3rd Defendant on 29.09.1987 executed a Rent Chit. The Appellant/Plaintiff let out an upper side and southern side room in 'A' schedule property to the 4th Defendant on 01.08.1987 for rent. The 3rd Defendant paid a monthly rent of Rs.100/- by October 1987 to the Appellant/ Plaintiff on 01.09.1987, for which a receipt was issued. The 4th Defendant paid October monthly rent of Rs.25/- to the Appellant/Plaintiff for which a receipt dated 01.11.1987 was obtained by her. Defendants 3 and 4 had not objected to the Will executed by Gurusamy in favour of the Appellant/Plaintiff. The suit was filed by the Appellant/Plaintiff praying for a Declaration in respect of 'A' schedule property. Therefore, third and fourth Defendants were arrayed as formal parties.
27.During the pendency of suit, the 2nd Defendant expired at Dharapuram on 07.02.1990. For the 2nd Defendant, his mother 1st Defendant, sons Defendants 5 to 8 and daughters Defendants 9 and 10 and the wife, 11th Defendant were the legal heirs. The Defendants 5 to 11 were added in the suit as LRs of the 2nd Defendant. Since possession was sought for from the 2nd Defendant in respect of 'B' schedule property, his other heirs were arrayed in the suit.
28.During the pendency of the suit, the 1st Defendant expired on 27.08.1990. The 2nd Defendant and another daughter Savithiri Ammal were the heirs of the 1st Defendant. Since the 2nd Defendant expired on 07.02.1990, the heirs were added already as L.Rs. as Defendants 5 to 11. For the 1st Defendant's deceased daughter Savithiri, Defendants 12 to 15 were the Legal heirs. The Defendants 12 to 15 were added as parties in the suit since a relief of possession was sought for from the 1st Defendant in respect of Plaint 'B' schedule property. In respect of 'B' schedule property as against the Defendants 1, 2 and 5 to 15 Defendants, the Appellant/Plaintiff would seek a relief by way of filing a separate suit for damages in respect of use and occupation.
29.In the Written Statement filed by Defendants 1 and 2, it was averred that the suit was not maintainable in law and justice. The Appellant/Plaintiff had no locus to claim any right in the suit property. The Will dated 07.06.1987 was a forged one. There was no necessity at any point of time for late Gurusamy Iyer to execute the Will. It was blatantly false to state that the Appellant/Plaintiff gave a sum of Rs.2,000/- to the 2nd Defendant for performing the funeral rites of late Gurusamy on 12.07.1987. It was false to state that the Defendants 1 and 2 asked the Appellant/Plaintiff to provide a room in Plaint 'A' schedule property for the purpose of performing the funeral rites of Gurusamy. Also, it was a lie to state that after the consent being accorded by the Appellant/Plaintiff on 12.07.1987, the Plaint 'B' schedule property was given in possession to Defendants 1 and 2. For many years Defendants 1 and 2 remained with late Gurusamy. The 1st Defendant was the Heir of late Gurusamy. The suit property belonged to the 1st Defendant. The 1st Defendant on 03.11.1987 gave a public notice in Dinamalar Daily in respect of the suit property mentioning that it belonged to him. The Appellant/Plaintiff had not issued any denial to the said notice and had created the suit Will.
30.Defendants 1 and 2 family members remained with the late Gurusamy for the past 40 years. When Gurusamy Iyer was not well and admitted into the Dharapuram Government Hospital, the Defendants 1 and 2 have treated him. After his death, the 2nd Defendant performed the funeral rites. Therefore, the Appellant/ Plaintiff had no locus to claim any right in the suit property. The tenants in the suit property were inducted by late Gurusamy and from them, the Appellant/Plaintiff, by means of threatening and creating records, was collecting the rent unlawfully.
31.In the Written Statement filed by Defendants 5 to 11, it was stated that the late Gurusamy was not maintained either by the Appellant/Plaintiff or by his family at any point of time. They had not met the medical or food expenses of the said Gurusamy. The Appellant/Plaintiff had no right to claim any relief in respect of the suit property. On 07.06.1987 Gurusamy had not executed a Will in favour of the Appellant/Plaintiff. The said Will was a false document. The thumb impression of the Will was also a false one. There was no necessity for the Gurusamy to execute a Will in favour of the Appellant/Plaintiff. It was false to state that the Defendants 1 and 2 asked the Appellant/Plaintiff to give them a room in suit 'A' schedule property for the purpose of performing funeral rites. It was also false to state that on 12.07.1987 the Appellant/Plaintiff, after consent, handed over the 'B' schedule property to them. The Rent Chit dated 29.09.1987 and the Rent Receipt were all created by the Appellant/Plaintiff in order to obtain the properties from the Defendants 1 and 2 in an unlawful manner.
32.The 1st Defendant was the lawful legal heir of Gurusamy. The property belonged to the 1st Defendant. The 2nd Defendant's wife was the 11th Defendant. Defendants 5 to 10 were the heirs of the 2nd Defendant. The Defendants 5 to 11 were the legal heirs, after the death of Defendants 1 and 2. They were the legal heirs for the suit property. Gurusamy was admitted into the hospital on 21.06.1987 because of his indisposition by the 5th Defendant and after discharge from the Hospital on 12.07.1987, expired on 12.07.1987. The 2nd Defendant performed the funeral rites of the said Gurusamy. Till 21.06.1987 Gurusamy was not affected bodily and he has remained in good condition and performed good deeds to many persons. Hence, in the created Will the recital of his body health, occupation wise and also about his economic status were all the imagination of the Appellant/ Plaintiff.
33.The Appellant/Plaintiff, in Plaint paragraph 5, admitted that in the suit property Defendants 3 and 4 were inducted as tenants, by Gurusamy, during his life time. After the death of Gurusamy, the Appellant/Plaintiff, by compulsion, created Rent Chits for the purpose of case and has been collecting rents from them unlawfully. Presently, the Appellant/Plaintiff had inducted a different person in place of Defendants 3 and 4 and causing hardship to the Defendants. In the other house, there was no tenant and that the Appellant/Plaintiff was keeping the key. For unlawful activities of the Appellant/Plaintiff, the 10th Defendant had given a police complaint for which documents were there. The 10th Defendant, as against the Appellant/Plaintiff for his unlawful activities, had contemplated to take action. The suit was liable to be dismissed.
34.In the Reply Statement filed by the Appellant/Plaintiff, it was stated that the witnesses signed in the Will dated 07.06.1987 mentioned in the Plaint were all very wealthy individuals. The scribe of the Will, Somasundaram was also a very wealthy person. The witnesses signed in the Will and the person who has written the Will viz., Somasundaram Chettiar were close persons to late Gurusamy. Gurusamy was admitted in the Hospital on 21.06.1987 by the Appellant/Plaintiff. Earlier, the 1st Defendant was residing at Palani. The 1st Defendant used to come to the suit property very often at a time when Gurusamy Iyer was not keeping good health. The medical and food expenses of Gurusamy Iyer were incurred by the Appellant/ Plaintiff. At the time of writing the Will dated 07.06.1987 Gurusamy's hands were shaking and hence, he affixed his thumb impression. The thumb impression in the suit Will belonged to Gurusamy. The Appellant /Plaintiff had lands and houses worth more than Rs.25 lakhs. The suit Will was not created by the Appellant/ Plaintiff. He had not obtained the Rent Chits from the Defendants 3 and 4 by compulsion. In the 'A' schedule house on the front and eastern side the tenant Lakshmi vacated and in her place another person was inducted as a tenant. The Will dated 07.06.1987 was a true one. The said Will was executed by Gurusamy based on good intention and out of his own free Will, volition and mind. The said Will could not be objected by the Defendants 1, 2, 5 to 11.
35.In the Additional Written Statement filed by the 10th Defendant, the 1st Defendant occasionally used to visit Palani and permanently resided with Gurusamy. Taking note of the fact that presently, Meenakshi Ammal and her son 2nd Defendant died, in the reply statement, it was newly stated that the 1st Defendant wasresiding at Palani and when Gurusamy Iyer was not keeping good health at that time he came and visited the suit property.
36.Even though four years had elapsed after filing of the suit till date, the Appellant/Plaintiff had not filed the Gurusamy's Will either before Court or with other authorities. Only on the side of Defendants on 19.12.1991 the Will was accepted before Court. Till 21.06.1981 Gurusamy's health had not deteriorated and therefore, the Appellant/Plaintiff had not met his medical expenses. Gurusamy to the best of his ability had served others and from the income received from that service and also from the rent received from the two tenants he helped himself, family and also the Defendants. Therefore, the averment that the Appellant/Plaintiff spent money for meals expenses of the Gurusamy Iyer was contrary to fact.
37.It was a lie to state that at the time of the creation of the Will, the hand of Gurusamy has been shivering. Till his death, Gurusamy has no hand shivering. As such, to exhibit the Will as if thumb impression was affixed by the said Gurusamy was not true.
38.On 17.11.1987 the Appellant/Plaintiff gave trouble to the Defendants 1 and 2 in a violent manner and the 1st Defendant lodged a complaint to the Police Department and also to other officials. The Appellant/Plaintiff exercised his influence over Defendants 3 and 4 and obtained Rent Chits from them. From the later half of the year 1987 some time Rent amounts were collected by the Appellant/Plaintiff and he was in enjoyment of the same. At present, the 4th Defendant was inducted as a tenant by the Appellant/Plaintiff.
39.P.W.1 (Appellant/Plaintiff), in his evidence, deposed that the suit property originally belonged to Gurusamy Iyer, who served as Village Karnam at Sankarandampalayam and Gurusamy initially purchased the suit property through Court Auction Sale valued about Rs.15 lakhs and that 'A' schedule property was divided into three parts as one upper portion to northern portion, middle portion and lower portion and that Gurusamy was affected with paralytic attack and he also often suffered from heart-ache. Prior to Gurusamy's death, his wife 7 years before expired and that he had no male or female Heirs.
40.It was the further evidence of P.W.1 that Gurusamy, after retired his village Karnam, has been in their family care and rice, dhal, vegetables, curd, milk were given to Gurusamy by their family and that on 07.06.1987, prior to his death, he executed a Will which was written by Somasundaram and that Gurusamy mentioned the recitals of the Will and in the Will S.P.Kandasamy and T.P.Palanisamy signed as witnesses and at the time of writing Ex.A.1-Will dated 07.06.1987, he was present. Moreover, at the time of writing Ex.A.1-Will dated 07.06.1987, Gurusamy was not keeping good health and his hand was shivering and therefore, he affixed his thumb impression in the said Will and that the Will was read over by Somasundaram which was shown to Gurusamy as directed and Gurusamy accepted the same and later the witnesses affixed their signature in the Will.
41.The evidence of P.W.1 (Appellant/Plaintiff) was also to the effect that Gurusamy Iyer has been admitted into the hospital, since was not keeping well at that time he handed over the Will on 21.06.1987 to him and that Gurusamy took one month treatment in the hospital and the hospital informed to take Gurusamy to his house and they took Gurusamy to his house and subsequently, he expired on 12.07.1987. Added further, P.W.1 stated that he met the last funeral expenses of Gurusamy and the Gurusamy's sister son performed the last rites and that the 1st Defendant was the sister of late Gurusamy and that the 2nd Defendant was the first Defendant's son.
42.Proceeding further, P.W.1 went on to add, in his evidence, that Defendants 1 and 2 know about Ex.A.1-Will dated 07.06.1987 and in the suit property, the upper side northern portion was let out to 4th Defendant by Gurusamy Iyer for rent and the eastern side portion was let out for rent to the 3rd Defendant and for performing the funeral rites for one month, the 2nd Defendant, in the suit, was asked him to enjoy the middle portion [which was described in 'B' schedule] and therefore, he gave him the possession of the said portion to the 2nd Defendant and after the death of Gurusamy, Defendants 3 and 4 had enjoyed the house.
43.P.W.1, in his evidence, stated that it was not correct to state that Will-Ex.A.1 was written out of compulsion and that Gurusamy executed a Will in favour of his brother Arjunan in respect of a house belonging to him at Sankarandampalayam which fact was mentioned in the Will.
44.Continuing further, it was the evidence of P.W.1 that before and after suit, the Defendants were disputing the Ex.A.1-Will and they refused to hand over possession.
45.P.W.1, in his cross examination, stated that he took care of Gurusamy for 20 years and because of their faith on him and so also the Gurusamy's faith in them. Further, they have took care of Gurusamy as per their father's instructions and that after resigning his post, Gurusamy was not keeping good health and more he had not gone out side.
46.P.W.1, in his evidence, deposed that the scribe who wrote the Ex.A.1-Will was in Kangeyam and further, he stated that it was incorrect to state that since some properties of Gurusamy came in their family hands with a view to knock of the suit and other properties, Ex.A.1-Will was created. Furthermore, it was the evidence of P.W.1 that he had not filed any documents when he lastly admitted Gurusamy into the hospital for joint pain, heart-ache and leg pain.
47.It was the categorical evidence of P.W.1 that in Ex.A.1-Will dated 07.06.1987, there were no recitals to the effect that he was writing the Will in the absence of witnesses and in their presence and also in Ex.A.1-Will before the witnesses putting their signatures, in their presence, the thumb impression was affixed. Moreover, in Ex.A.1-Will, there were no recitals to the effect that the witnesses were signing in the presence of Gurusamy.
48.P.W.1 went on record to state that it was incorrect to state that on the day of when Will was written Gurusamy's hands were shivering and further deposed that after Ex.A.1-Will for the shivering of hands, siddha and other treatments were given, for which there were no records.
49.It was the evidence of P.W.2 that Gurusamy served as Village Karnam of Sankarandampalayam and he signed in Ex.A.1 as Kandasamy and that Gurusamy executed Ex.A.1-Will on 07.06.1987 and that the said Will was written in Gurusamy's house and at the time of writing the Will, the Appellant/Plaintiff, Palanisamy, Somasundaram Chettiar were present and that they were taken by Somasundaram Chettiar from the house of Appellant/Plaintiff to the house of Gurusamy and that the Will was written by Somasundaram Chettiar and initially a draft was prepared and only when approval was given Palanisamy in Ex.A.1-original Will was written and his original Will was read over to Gurusamy and after that he affixed his thumb impression and Gurusamy affixing his thumb impression was seen by them as witnesses and Gurusamy saw them affixing their signatures and since Gurusamy's hand was shivering vigourously, he affixed his thumb impression in Ex.A.1-Will.
50.P.W.2 (in his cross examination) deposed that he affixed his signature at 9.30 a.m. approximately and that 15 minutes was taken for writing the document and for writing the original, 15 minutes was taken and that Gurusamy affixed his two thumb impression and he did not know for how many days Gurusamy's hands were shivering and in Ex.A.1-Will it was mentioned that till date he signed and further, it was mentioned that his hands were shivering.
51.P.W.3, in his evidence, deposed that the thumb impression was seen in Ex.A.1-Will in that of Gurusamy and that he wrote the Will as per dictation and after writing Ex.A.1 he read over the same to Gurusamy and that because of his shivering hand Gurusamy affixed his thumb impression and P.W.2 (S.P.Kandasamy) and another Palanisamy signed as witnesses and he affixed his signature as Writer and as well as witness and that he saw Gurusamy affixing his thumb impression in Ex.A.1 along with the witnesses and Gurusamy saw the witnesses signing.
52.P.W.4, in his evidence, stated that the Appellant/Plaintiff helped Gurusamy in various ways and that the medical treatment was provided by the Appellant/Plaintiff and further, the Appellant/Plaintiff provided milk, rice, dhal, curd etc. to Gurusamy and he has knew Gurusamy for the past 60 years.
53.P.W.4 (in his cross examination) categorically stated that Senathipati Gounder was his house owner where he resides and he did not know when Gurusamy was affected with paralytic attack and initially Gurusamy was working and lastly for 1 or 1 = months he remained bed-ridden and very often he suffered from illness.
54.D.W.1 (10th Defendant), in her evidence, deposed that the late Gurusamy was his her maternal uncle and that Gurusamy was the brother of 1st Defendant and after filing of the suit, Defendants 1 and 2 had died and the 1st Defendant's heirs were added as Defendants 12 and 15 and the 2nd Defendant's legal representatives were added as Defendants 5 to 11 and further, the Appellant/Plaintiff was residing on the eastern side of the suit property.
55.It was the further evidence of D.W.1 that Gurusamy possessed ancestral properties and also the suit property and during the year 1978, in the suit property, the 2nd Defendant, 11th Defendant and one Ramamurthy, herself and Gurusamy's wife Balambal resided and the voters list page 4 is Ex.B.1 in which the aforesaid persons name were found in page 252 to 257 and the additional voters list copy page 1 for the year 1981 is Ex.B.2 in which the 5th Defendant's name was found in serial No.1197 and Ex.B.3 is the voters list copy for the year 1984 page 2, in which Gurusamy Iyer, 2nd Defendant, 6th Defendant and one Prakathambal's name were seen in Serial Nos.252 to 258 and in Ex.B.4 voters enumeration details dated 10.1.1988, the name of Defendants 1, 2, 5, 6 and 11 were seen and in Ex.B.5-Voters Form, Defendants 7 and 8 names were seen and in Ex.B.6-voters Card dated 3.3.89 the name of the 5th Defendant-Padmavathy was seen and Ex.B.7 dated 5.9.90 was her marriage Betrothal Invitation which was prepared by P.W.4 in which Gurusamy affixed his signature as an attestor and further, P.W.4 was also signed and Exs.B.8 to B.15 were the letters which were received by her and Defendants 1 and 2.
56.It was the further evidence of D.W.1 that on 18.6.1987 Padmavathi executed Ex.B.16-Pronote in her favour in which Gurusamy affixed his signature as an attestor and (subsequently stated) that Gurusamy was not signed and further the 2nd Defendant signed and that Gurusamy had Asthuma problem and he had no paralytic attack, heart attack or swelling in the leg, joint swelling and Gurusamy had not gone to the hospital singly and that Gurusamy was not taken by the Appellant/Plaintiff for providing him the treatment and it was a lie to state that the Appellant/Plaintiff incurred medical and food expenses of Gurusamy.
57.It is the specific evidence of D.W.1 that Gurusamy Iyer had not executed Ex.A.1-Will dated 07.06.1987 and till his death, Gurusamy was affixing his signature and it was not correct to state that because of shivering hand Gurusamy Iyer affixed his thumb impression and lastly he was suffering from diarrhoea and generally Gurusamy Iyer used to take country medicine treatment at home and that he was admitted into the Government Dharapuram General Hospital on 21.6.1987 by herself, Ramamurthy, 2nd Defendant and Gurusamy Iyer's Assistant K.Rangarasu and subsequently, they took him to the house on 12.07.1987 and one hour later Gurusamy expired and for his death, the Appellant/Plaintiff did not come and only on the 5th day he has came and enquired.
58.D.W.1 also deposed that after the death of Gurusamy, they did not ask the Appellant/Plaintiff to perform the funeral rites and there was no necessity to ask for like that and the 2nd Defendant only met the funeral expenses and from the year 1966 the Appellant/ Plaintiff's brother Arjunan was enjoying the house at Sankarandampalayam which was in the name of Gurusamy and that the lands in the name of Gurusamy were enjoyed by the Appellant /Plaintiff's family and the Appellant/Plaintiff's family means it would refer to the Appellant/Plaintiff, brother Arjunan and his father. According to D.W.1, Gurusamy had let out the upper portion and eastern side portion of the suit property for rent.
59.D.W.1, in her cross examination, deposed that Gurusamy took possession of the suit property through Court and from the date of taking possession of the suit property, Gurusamy resided in the suit property and the suit property belonged to him, which was accepted by her and for Gurusamy, Defendants 1, 2, 5 to 15 were heirs.
60.That apart, it was the evidence of D.W.2 that in Ex.B.58 and Ex.B.7, the signature of S.S.Gurusamy Iyer was entirely a different one and in Ex.B.7 and Ex.B.56, the signature S.S.Gurusamy were similar and the signature S.S.Gurusamy in Ex.B.16 was different from the signature Gurusamy found in Ex.B.7 and Ex.B.56. Also, in Ex.B.16 the detail of Gurusamy Iyer affixing his signature was mentioned and in Ex.B.16 Gurusamy's Dharapuram address was not mentioned and Ex.B.16 and Ex.B.58 were prepared on the same day and in Ex.B.16 and Ex.B.58 the signature of Gurusamy was not alike.
61.D.W.2, in his evidence, deposed that from the year 1965 he knew Gurusamy and that from the year 1975 he helped Gurusamy and he used to write accounts for Gurusamy and majority of the time, he used to be in the house of Gurusamy and before the year 1975, in the suit property Gurusamy was residing and Ex.B.16 was prepared by him on 18.06.1987 and his mother as per this document took a loan from the 10th Defendant in which as a witness Gurusamy signed for 2nd Defendant and he also signed as a witness and his mother paid only the interest.
62.D.W.3, in his evidence, stated that Gurusamy executed a Sale Deed in favour of Muthulakshmi and that the certified copy of the sale deed dated 31.01.1979 was Ex.B.59 and volume 303 of the register at page 68 on 16.02.1979 S.S.Gurusamy Iyer signed in the register and also he affixed his left thumb impression and Document No.227/79 the full photo of page 69 with negative was Ex.B.60 and Ex.B.61 was the photo signature of Gurusamy and photo with negative was Ex.B.62.
63.D.W.4, in his evidence, stated that Exs.B.60, B.61-Photos were taken by him in Court on 30.08.1994 and Exs.B.61 and B.62 were developed photos.
64.At this stage, this Court pertinently points out that a execution of a Will is to be proved as per the ingredients of Section 68 of the Indian Evidence Act. The burden of proving the Will is on the propounder. The testamentary capacity of the testator ought to be proved before a Court of law for the purpose of establishing the execution of the Will bare minimum, one attesting witness is to be examined. The requirement of law is that it is to be proved that the Will in question has been executed by the testator by affixing his signature out of his free Will and volition and at the time of execution, he has been in a sound disposing state of mind and has understood the nature of disposition. Further, it is to be proved that he has signed in the Will in the presence of two witnesses who attested his signatures either in his presence or in the presence of each other.
65.It is to be borne in mind that the propounder of Will is to prove that the testator has signed the Will after understanding the contents thereof as per decision of this Court J.Mathew V. Lella Joseph, (2007) 5 MLJ 740 (Madras). This Court aptly points out the decision in Robert Prabhakar V. David Ebenezer, 2006 (5) CTC 351 (DB) at page 353, it is held that 'Law is well settled that even in the absence of any suspicious circumstances, a person who propounds the Will has to prove the due execution and attestation of the Will'.
66.It is not out of place for this Court to cite the following decisions:
(a)In Premavathi and others V. Sundararajan and others, (2009) 6 MLJ 560 (DB), this Court has held hereunder:
"The onus of proving the Will is on the propounder and where there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court to accept the Will as genuine. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence.
A Will like any other document is to be proved in terms of the provisions of the Indian Succession Act and Indian Evidence Act. The testamentary capacity of the propounder must be established. The execution of the Will by the testator has to be proved."
(b)In the decision of the Hon'ble Supreme Court in B.Venkatamuni V. C.J.Ayodhya Ram Singh and others, AIR 2007 Supreme Court 311 at page 317 and 318, in paragraph 25 and 26, it is, inter alia, held as follows:
"25.The Division Bench of the High Court was, with respect, thus, entirely wrong in proceeding on the premise that compliance of legal formalities as regards proof of the Will would sub-serve the purpose and the suspicious circumstances surrounding the execution thereof is not of much significance.
26.The suspicious circumstances pointed out by the learned District Judge and the learned Single Judge of the High Court, were glaring on the face of the records. They could not have been ignored by the Division Bench and in any event, the Division Bench should have been slow in interfering with the findings of fact arrived at by the said court. It applied a wrong legal test and thus, came to an erroneous decision."
(c)In Joseph V. K.V.Ippunny, AIR 2007 (NOC) 2517 (Ker), it is held that 'in regard to the execution of Will, there is an obligation only to call atleast one of the attesting witness, if he is alive, to Court for proving the same and if he denies the Will, if by other evidence it is proved that there is proper attestation, Will can be accepted and the requirement of proof that Will has duly been executed is on the propounder of Will and mere proof of signature of testator is also not enough.'
(d)In B.Rajegowda and another V. H.R.Shankaregowda and others, 2006 A I H C 401 at page 402, it is held that 'For proof of execution of Will, it is essential that witness must have put his signature animo attestandi i.e., for purpose of attesting that he has seen executant sign or receive from him personal acknowledgment of his signature and further that the attesting witness is shown to have subscribed his signature and was neither present when document was written no he has seen executant executing his signature and under such circumstances, the Will does not stand duly proved.'
(e)In Pentakota Satyanarayana and others V. Pentakota Seetharatnam and others, AIR 2005 Supreme Court 4362 at page 4370, 4731 at paragraph 26, it is laid down as follows:
"26.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 & Ors, (2005) 2 SCC 784. 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."
(f)In Gurdial Kaur and others V. Kartar Kaur and others, AIR 1998 Supreme Court 2861 at page 2862 in paragraphs 3 and 4, it is held as follows:
"3.The law is well-settled that if there is suspicious circumstance about the execution of the will, it is the duty of the person seeking declaration about the validity of the will to dispel such suspicious circumstances. In this connection, , reference may be made to the decision of this court in Rani Purnima Debi and another Vs.Kumar Khagendra Narayan Deb and another (AIR 1962 SC 567). It has been held in the said decision that if a will being registered and having regard to the other circumstances, is accepted to be a genuine, the mere fact that the will is a registered will it will not by itself be sufficient to dispel all suspicions regarding the validity of the will where suspicions exist. it has been held that the broad statement by witness that he had witnessed the testator admitting execution of the will was not sufficient to dispel suspicions regarding due execution and attestation of the will. it has been specifically held that registration of the will by itself was not sufficient to remove the suspicion, Relying on an earlier decision of this Court reported in AIR 1959 SC 443, it has been held in the said decision that where the propounder was unable to dispel the suspicious circumstances which surrounded the question of valid execution and attestation of the will, no letters of administration in favour of the propounder could be granted.
4.The law is well settled that the conscience of the Court must be satisfied that the will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the will. Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the will to dispel suspicous circumstance. As in the facts and circumstances of the case, the Court of Appeal below did not accept the valid execution of the will by indicating reasons and coming to a specific finding that suspicion had not been dispelled to the satisfaction of the Court and such finding of the Court of Appeal below has also has been upheld by the High Court by the impugned judgement, we do not find any reason to interfere with such decision. This appeal, therefore, fails and is dismissed without any order as to costs."
67.It is an axiomatic principle in law that mere proof of signatures/thumb impression of the testator on the Will does not prove the execution of the Will. An important fact which is to be noticed is that the testator put his signatures/thumb impressions on the Will and he intended to bequeath the property.
68.Apart from the above, it is relevant for this Court to make a mention that merely because the testator had suffered paralytic stoke, it cannot be held that the executor was mentally incapacitated to execute the Will as per decision Rukmani Bai V. Umabai Shankar Jadhav, AIR 2008 (NOC) 829.
69.As a matter of fact, the onus of proving the Will completely stands on a different pedestal. Apart from proving the execution by means of examining the testators, the propounder of the Will is to lead relevant evidence to explain the surrounding suspicious circumstances. It is the mandatory requirement as per Section 68 of the Indian Evidence Act, 1872 that an attesting witness ought to state that the testator put his thumb impressions/signatures on the Will in his presence and he signed as attesting witness in the presence of the testator as per decision Ramautar V. Ram Naresh, AIR 2009 (NOC) 2102 (MP). Also, in the aforesaid decision, it is held that 'if the evidence has not shown that the testator put his signatures/thumb mark on the Will in the presence of an attesting witness, than the execution of Will is not proved.'
70.This Court worth recalls the decision in S.Jothi V. The District Collector, AIR 2005 NOC 492 (P&H), wherein it is observed that 'Where there were serious doubts regarding signatures of attetator on Will and the Will was executed on the date close to the date of death of the testator, the Plaintiff failed to prove due execution of Will.'
71.A party questioning the execution of a Will as suspicious circumstance should plead the suspicious circumstances before the propounder is required to remove the suspicious circumstances as per decision Nathia Bai V. Ganagaram Horal Singh, AIR 2010 (NOC) 353 (MP).
72.When there are suspicious circumstances, the burden is on the propounder of the Will to remove suspicion by letting in appropriate evidence as per decision of Hon'ble Supreme Court in Adivekka V. Hanamavva Kom Venkatesh, (2007) 7 SCC 91 (99). Moreover, in S.R.Srinivasa V. S.Padmavathamma, (2010) 5 SCC 274 (287), the Honble Supreme Court has held that 'the presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the Will excite the suspicion of the Court, the propounder is removed all legitimate suspicious before the document can be accepted as the last Will of the testator.'
73.In Thayammal V. Ponusamy, (2008) 8 MLJ 647 (Mad), this Court has held that Courts should not attach undue importance to imaginary suspicious and proceed on the footing that the Will is an invalid one. One cannot ignore a vital fact that the burden is very heavy on the propounder who is the beneficiary of the bequest and he should discharge the burden of proof of capacity of the testator as well as the factum of execution, from which the knowledge and the assent to its content by the testator will be assumed.
74.In V.Lakshminarayan V. S.V.Balasubramanian, (2009) 1 MLJ 996 (Madras), it is held that 'Where the plaintiff is the beneficiary and has taken active part in the execution of the Will, heavy burden lies on him to dispel the arena of suspicion around the execution of the Will.
75.Indeed, Section 63 of the Indian Succession Act prescribes the formalities required by law to be observed in regard to the execution and attestation of a Will. In fact, Section 68 of the Indian Evidence Act is concerned with the issue of proof of the fact as to whether the formalities have been properly complied with or not. However, Section 63 of the Indian Succession Act enjoins that a Will should be attested by two witnesses, whereas Section 68 of the Indian Evidence Act postulates that a Will can be proved by one of the attesting witnesses.
76.Section 68 of the Evidence Act will be relevant in regard to the proof of signature of the deceased or his acknowledgment that he has signed the Will, he will be presumed to have known the contents of the instrument he has signed. The said presumption is liable to be rebutted by proof of suspicious circumstances. What circumstances would be considered as suspicious circumstances cannot be precisely defined or exhaustively enumerated as per decision of the Hon'ble Supreme Court in Venkatachala V. Thimmaiamma, AIR 1959 SC 443.
77.Generally, when the evidence adduced in support of the Will is satisfactory, disinterested and sufficient to establish the sound and disposing state of the testator's mind and the signature/thumb impression as required by law, Courts would be justified in rendering a finding in favour of the propounder.
78.The onus of proving a Will does not ordinarily differ from that of proving any other document except as to special requirement of attestation prescribed by Section 63 of the Indian Succession Act as per decision of the Hon'ble Supreme Court in Sashi Kumar V. Subodh Kumar, AIR 1964 Supreme Court 529.
79.A registration of a Will is not required in law. At the most, the registration is a piece of evidence of an execution. However, registration cannot part take the character of due attestation of the document.
80.In Karri V. Patra, AIR 1974 AP 13, it is held that 'the participation of the attesting witness even at the time of registration does not dispense with the proof of execution and attestation of Will in accordance with Section 68 of the Indian Evidence Act, 1872.'
81.In law, the Will come into force after the death of the testator. When it is produced before a Court or propounded, the testator, who is no more, cannot say whether it is his Last Will or not. This is logically introduces an element of solemnity in the decision on the issue as to whether the document propounded is proved to be the last Will of the deceased testator. In reality, the propounder is called upon to establish by a satisfactory evidence that the Will has been signed by the testator, that at the relevant time, the testator has been in a sound and disposing state of mind and further he understood the nature and effect of the dispositions and put his signatures or thumb impressions as the case may be out of his own free Will. All reasonable and legitimate suspicious circumstances will cast on the early burden very heavy to prove the Will, and unless it is satisfactorily discharged, a Court of law will be reluctant to consider the document as the last Will of the testator. In the decision of the Hon'ble Supreme Court in H.Venkatacha Iyengar V. B.N.Thimmaiamma, AIR 1959 SC 443, it is held that 'if the propounder has taken a prominent part in the execution of the Will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance.'
82.In the instant case on hand, in Ex.A.1-Will dated 07.06.1987 deceased Gurusamy affixed his thumb impression. When the said Gurusamy in Ex.B.58-Letter dated 19.06.1987 addressed to the Periyar District Collector had affixed his signature [the said letter sent under certificate of posting). A natural question that will arise for ones rumination is as to how the said Gurusamy had affixed his thumb impression in Ex.A.1-Will dated 07.06.1987, which was earlier to that of Ex.B.58-Letter dated 19.06.1987. Therefore, under what circumstances, the said Gurusamy affixed his thumb impression in Ex.A.1-Will dated 07.06.1987 was to be satisfactorily explained by the Appellant/Plaintiff. It was seen from Ex.A.12-Admission and Discharge Certificate dated 07.01.1992 that the said Gurusamy Iyer was admitted as an inpatient on 21.06.1987 and was discharged on 12.07.1987.
83.A perusal of Ex.B.7-Betrothal Invitation dated 14.09.1980 indicates that Gurusamy signed as a second witness. However, a perusal of Ex.B.58-Letter dated 19.06.1987 written by the deceased Gurusamy addressed to the Periyar District Collector shows that has signed in English. The signature of Gurusamy [the testator of Ex.A.1-Will] was seen in Ex.B.7-Betrothal Hand-written Invitation was quite similar to the one seen in Exs.B.60 to B.62 as compared by this Court as per Section 73 of the Indian Evidence Act. The signature of Gurusamy in Ex.B.58-Letter dated 19.06.1987 was different from that of his signatures seen in Exs.B.7, B.60 to B.62.
84.A Court of law is competent under law to make the comparison of signatures/thumb impressions. It may not be safe for a Court of law to record a finding about a person's writing in a certain document merely on the basis of comparison, but the Court can itself compare the writings in order to appreciate properly the other evidence produced before it, as per decision of the Hon'ble Supreme Court in S V. Vinaya Chandra, AIR 1967 SC 778.
85.Before the trial Court, no endeavour was made on either side to prove the signature of Gurusamy, as seen in Ex.B.56-Form No.8A and Ex.B.58-Request Letter of Gurusamy by the concerned, in sending the same to obtain the report from the handwriting/finger print Expert. Likewise, the thumb impression of Gurusamy as seen in Ex.A.1-Will dated 07.06.1987 was not compared with the thumb impression of Gurusamy in Ex.B.59-Sale Deed dated 31.01.1979 by sending the same to an Expert. It was for the Appellant/Plaintiff to prove his case.
86.P.W.1 (Appellant/Plaintiff) stated, in his evidence, that at the time of writing the Will, Gurusamy was not keeping good health and his hand was shivering and therefore, he affixed his thumb impression. But, in the cross examination, P.W.1 deposed that it was not correct to state that at the time of writing the Will, Gurusamy's hand was shivering. A perusal of Plaint shows that the Appellant/Plaintiff did not made any averment that because of his shivering hand, the testator Gurusamy affixed his thumb impression in Ex.A.1-Will dated 07.06.1987.
87.P.W.2, in his evidence, stated that because of heavy hand shivering, Gurusamy Iyer affixed his thumb impression in Ex.A.1. P.W.3 also stated, in his evidence, that Gurusamy, because of his shivering hand, has affixed his thumb impression in Ex.A.1-Will.
88.The evidence of D.W.1 was to the effect that till his death Gurusamy Iyer was in the habit of signing and that he had not executed Ex.A.1-Will dated 07.06.1987. D.W.2 [who helped Gurusamy from the year 1975] also, in his evidence, deposed that Gurusamy had not spoken anything about the Will to him and also that he had not executed the Will.
89.In view of the fact that the Appellant/Plaintiff (P.W.1), in his evidence, admitted Gurusamy into the Hospital and discharged him, there might have been an opportunity or possibility of obtaining the thumb impression of Gurusamy, which could not be ruled out. In the instant case, P.W.1 took a prominent part as an absolute beneficiary and participated in the execution of the Will. Only because of Gurusamy's shivering hand, he affixed his thumb impression in Ex.A.1-Will because of his ill-health was not proved to the subjective satisfaction of this Court, as opined by this Court. Admittedly, no medical records of Gurusamy while he was admitted into the Government Hospital were produced on the side of the Appellant/ Plaintiff to know about the status of the health condition of Gurusamy and more particularly with reference to the alleged plea of his shivering hands and to what extent his hands were shivering which forced him to affix his thumb impression.
90.Moreover, the very admission of P.W.1, in his evidence, that he had filed necessary records before the trial Court to show that after execution of Ex.A.1-Will for shivering hand of Gurusamy, siddha treatment and other treatments were given to him, was a circumstance which certainly went against the Appellant/Plaintiff. Though the Appellant/Plaintiff really bank on the recitals in Ex.A.1-Will to the effect that the testator Gurusamy himself had stated that till date he was in the habit of putting his signature and since his hand was shivering, he had affixed his thumb impression. The said reason itself would not suffice to prove the execution of the Will. The cloud/shroud surrounding the truth and validity of the execution of Ex.A.1-Will would necessarily to be removed on the part of the Appellant/Plaintiff [propounder of the Will] relating to the unnatural disposition. In the absence of medical records, the plea that because of Gurusamy's shivering hand, he affixed his thumb impression as made mention of in Ex.A.1-Will could not be accepted by this Court because of the simple fact that the Appellant/Plaintiff being the leading beneficiary had played a very significant role in regard to the making and execution of the Ex.A.1-Will.
91.In the instant case, the suspicious circumstances like affixing the thumb impression [when Gurusamy was earlier in the habit of affixing his signature] surrounding the Will and proving the testamentary capacity etc. were not discharged by the Appellant/ Plaintiff (P.W.1). Therefore, the suspicious circumstances surrounding the Will about the legality and validity of the execution of the Will were not discharged by the Appellant/Plaintiff and therefore, this Court comes to an inevitable conclusion that Ex.A.1-Will was not proved as per Section 68 of the Indian Evidence Act.
92.To put it precisely, only because of his shivering hand when he was indisposed, said Gurusamy affixed his thumb impression in Ex.A.1-Will dated 07.06.1987 was not satisfactorily established by the Appellant/Plaintiff in a cogent, coherent, clear-cut preponderance of probability and convincing fashion, in the considered opinion of this Court. Though Ex.A.1-Will founded on suspicion was a ground for closer scrutiny, yet, the same could not form the basis of a judicial verdict. It was to be borne in mind that it was the duty of the propounder of the Will to prove the competency of the testator. In the present case on hand, the Appellant/Plaintiff had not established that the testator Gurusamy was quite competent and further was in a good and sound state of mind in a fit manner to execute the Ex.A.1-Will dated 07.06.1987 out of free volition and without any one's influence or compulsion.
93.Coming to the plea of the Appellant/Plaintiff that the First Appellate Court had not considered the material factors in reversing the trial Court Judgment, it is to be pointed out that the First Appellate Court, in its Judgment in A.S.No.12 of 1995, referred to the evidence of P.W.1, D.W.1 and further referred to the exhibits. Also, it made mention of the evidence of P.W.2 and P.W.3 in brief in paragraphs 23 and 25 of the Judgment.
94.At this stage, it is to be pointed out that, in law, the Judgment of reversal made by the Appellate Court is required to refer to all the evidence receiving better treatment. A discussion of every part of evidence in an appellate Judgment is imperative. In short, a Judgment of reversal must express an opinion on all points on which the lower Court has rested its conclusion. It cannot be gainsaid that the power of an Appellate Court as per Order 41 Rule 31 and 33 are coextensive with the powers of High Court.
95.As a matter of fact, it is the primordial duty of a Court of Law to pass a reasoned and speaking Judgment based on materials on record. An unreasoned Jugdment may be just and fair from the point of view of an individual, who has obtained the same in his favour. But, to the affected person, it would cause inconvenience and hardship.
96.In the present case, even though the First Appellate Court had not discussed the evidence of witnesses in detail, yet, the same would not preclude this Court in arriving at a fair, just and an independent conclusion based on materials on record.
97.From a perusal of Exs.B.8 to B.15-Letters, there is no doubt that the Respondent/10th Defendant, along with parents, is residing in 'B' schedule property. Since Ex.A.1-Will dated 07.06.1987 is held to be unproved on the part of the Appellant/ Plaintiff, the Respondent/10th Defendant is not liable to be evicted from the suit 'B' schedule property.
98.For the foregoing reasons, it is held that the Ex.A.1-Will dated 07.06.1987 executed by Gurusamy was not proved as per Section 68 of the Indian Evidence Act and also that it could not be said that the First Appellate Court had not considered the material evidence, while arriving at a conclusion in the Appeal in A.S.No.12 of 1995 and accordingly, the Substantial Question of Law is answered against the Appellant/Plaintiff.
99.In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. Consequently, the Judgment and Decree of the First Appellate Court in A.S.No.12 of 1995 dated 25.07.1995 are affirmed by this Court for the reasons assigned in this Appeal.
sgl To
1.The Subordinate Judge, Dharapuram.
2.The District Munsif Court, Dharapuram