Madras High Court
M.S. Thanigachala Pillai vs Rukmani Ammal And Ors. on 7 March, 1988
Equivalent citations: AIR1989MAD99, AIR 1989 MADRAS 99, (1988) 101 MADLW 425, (1988) 2 LANDLR 305, (1991) 1 LJR 862, (1988) 2 CURCC 2
JUDGMENT Ratnam, J.
1. The first defendant in O.S. 162 of 1976, District Munsif Court, Sholinghur, is the appellant in this second appeal. That suit was instituted by the first respondent herein for a declaration of her title to the suit properties and for an injunction, or, in the alternative, for recovery of possession, against the appellant and respondents 2 and 3. The suit properties are two in number. The first respondent claimed title to the suit properties on the strength of a settlement deed executed by her brother, Linga Pillai, on 24-9-1971. According to the case of the first respondent, Linga Pillai was the absolute owner of the suit properties, having got them under a registered Will executed by one Pattammal on 15-4-1968. Pattammal, according to the first respondent, in turn obtained the suit properties under a partition deed dt. 21-10-1961 between the appellant, Pattammal and another. The further case of the first respondent was that the appellant had no manner of right or interest in the suit properties, but purported to execute sale deeds in favour of respondents 2 and 3 in respect of certain portions of the suit properties. Those sale deeds are not valid and binding on her, according to the first respondent. It was under these circumstances, the first respondent instituted the suit praying for the reliefs set out earlier.
2. Respondents 2 and 3 remained ex-parte. The appellant resisted the suit contending that Linga Pillai was not the owner of the suit properties and that he was not in possession and enjoyment of the properties at any time, that the settlement deed dt. 24-9-1971 is not true, that he sold certain properties to respondents 2 and 3 and that they had prescribed title by adverse possession. A plea was also raised that the suit is bad for nonjoinder of parties.
3. Before the trial Court, on behalf of the first respondent Exs. A. 1 to A. 7 were filed and P.Ws. 1 to 3 were examined, white, on behalf of the appellant Ex. B 1 to B 12 were marked and the appellant gave evidence as D. W. 1. On a consideration of the oral as welt as the documentary evidence, the learned District Munsif found that the settlement deed dt. 24-9-1971 is true, valid and binding on the appellant, that it had been acted upon, that the suit is not bad for non-joinder of parties, that the appellant had not perfected title to the suit properties by adverse possession and further that the respondents 2 and 3 are not bona fide purchasers for value. On those conclusions, a decree was granted in favour of the first respondent declaring her title to the suit properties and for recovery of possession of the same. Aggrieved by this the appellant preferred an appeal in A.S. 256 of 1978, District Court, North Arcotat Vellore. The lower appellate Court concurred with the conclusions of the trial Court and dismissed the appeal. The appellant challenges in this second appeal the correctness of the same.
4. The finding arrived at by the lower appellate Court regarding the allotment of the suit properties to the share of Pattammal in the partition under Ex.A. 3 dt 21-10-1961 between the appellant, Pattammal and another, was not challenged before this Court Likewise, the execution of the settlement deed by Linga Pillai (P.W. 2) in favour of the first respondent under Ex.A.4 dt. 24-9-1971 was also not questioned by the appellant. The only contention urged by the learned counsel for the appellant is that though Pattammal had been allotted the suit properties under the partition arrangement Ex.A.3 dt 21-10-1961 and Linga Pillai had under Ex. A. 4 dated 24-9-1971, settled the suit properties in favour of the first respondent herein, the title to the suit properties of Linga Pillai from Pattammal had not been made out under the, will of Pattammal Ex.A.6, dt. 15-4-1968, as the Will had not been proved in the manner contemplated by law. In other words, the learned counsel submitted that the transmission of title to the suit properties from Pattammal to Linga Pillai under the Will Ex.A.6 dt. 15-4-1968, had not been established, as the Wilt itself had not been proved. Referring to the evidence of P.W. 3, one of the attestors of the Will Ex.A.6, learned counsel for the appellant contended that his evidence fell short of t he requirements under Section 63(c) of the Succession Act. Reliance in this connection was placed upon several decisions. On the other hand, learned counsel for the first respondent submitted that the evidence of P.W. 3 fully conforms to the requirements of Section 63(c) of the Succession Act and clearly establishes the due execution and the attestation of the Will by Pattammal under Ex.A.6 and therefore Linga Pillai obtained title to the suit properties under the Will Ex.A.6.
5. Thus, the only question that has to be considered is whether the will Ex. A.6 dt. 15-4-1968 has been proved to have been executed by Pattammal and attested in accordance with the law. In this connection. It is necessary to refer to Section 63(c) of the Succession Act, which runs as under -
"63(c). The Will shall be attested by twoor more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
A reference at this stage may be made to Section 68 of the Evidence Act 1872 (hereinafter ' referred to as the Evidence Act for short), which provides that: --
"68. If a document is required by law to be attested it shall not be used as evidence until one attesing witness at least has been called for the purpose of proving its execution, if there be an at testing witness alive, and subject to the process of the Court and capable of giving evidence."
There is a proviso to this Section, which is not very material for purposes of this case. Thus, while under Section 63(c) of the Succession Act, the Will should be attested by two or more witnesses, each of whom had either seen the testator sign or affix his mark, or had received from the testatora personal acknowledgment of his signature or mark on the Will, it is not necessary that the testator and the two witnesses should all be present at one and the same time. However, it is clear that there must be two witnesses, who have attested the execution and to each of them the testator either should have given his personal acknowledgment of his signature or mark, or both of them should have been present at I he time when the testator executed the document. Section 68 of the Evidence Act fays down the mode of proof of a Will by calling at least one witness, but it does not set out or purport to define what is required to be proved. That however has been laid down in Section 63(c) of the Succession Act. Even if one witness, who is called, is able to depose to all that is required by Section 63(c) of the Succession Act, for the valid execution of a will, that would suffice for Section 68 of the Evidence Act. Section 68 of the Evidence Act does not in any manner change or a alter the requirements to be proved by Section 63(c) of the Succession Act. A reading of Section 63(c) of the Succession Act with Section 68 of the Evidence Act, establishes that a person propounding a Will has to prove that the Will was duly and validly executed and that should be done by not merely establishing that the signature on the Will was that of the testator, but also that the attestations were made in the manner contemplated by Clause (c) of Section 63 of the Succession Act. It is true that it is not necessary under Section 68 of the Evidence Act to examine both or all the attesting wit nesses. However, it does not follow that if one attestor proves that the testator had acknowledged his signature to him, it is not necessary that the acknowledgment by the testator before the other attesting witness need be proved. In cases where two attesting witnesses had signed in the presence of each other, it is not necessary to examine both to prove that they had received the acknowledgment from the testator, but if the attestations are not made at the same time, it is necessary to prove that the attestors had signed so on the acknowledgment of the testator.
6. It is in this light, the evidence of P.W. 3 has to be scanned to find out whether the first respondent has established (he due execution of the Will by Pattammal in the manner contemplated under Section 63(c) of the Indian Succession Act. P.W. 3 has deposed that he has signed as an attestor in Ex.A.6. He has also spoken to the fact that the testatrix signed the Will. The further evidence of P.W. 3 is to the effect that he and the other attestor as well as the scribe had seen the testatrix put her signature. A reference to the Ex.A.6 shows that P.W. 3 had figured as the second attestor therein, and the other attestor has put his signature above that of P.W. 3. A careful reading of the evidence of P.W. 3 discloses that the attestors were both present at the time when Ex.A.6 was executed by Pattammal and that they had seen the testatrix executing the Will and that they had both figured as attestors in that Will. It is significant that the evidence of P.W. 3 relating to his presence as well as the presence of the other attestor and the attestors having signed the Will, has not in any manner been challenged in cross examination. This unchallenged evidence of P.W. 3 clearly shows the execution of the Will by Pattammal as contemplated under Section 63(c) of the Succession Act. Learned counsel for the appellant however made a faint attempt to contend that P.W. 3 has not referred to the attestation by the other attestor. However, it is seen from the Will Ex.A-6 as well as the evidence of P.W. 3 that he had referred to the execution of the Will Ex.A.6 by the testatrix in the presence of himself and another, who had figured as attestors. In of her words, P.W. 3 in his evidence has referred not only to the execution of Ex. A. 6 Will by Pattammal in the presence of both the attestors, but also the attestation of the will by both the attestors. That would be more than sufficient to satisfy the requirements of Section 63(c) of the Succession Act. In view of the aforesaid evidence of P.W. 3 it is unnecessary to refer to the several decisions relied on by the learned counsel for the appellant The Courts below were therefore quite right in holding that the first respondent had established that the suit properties were allotted to Pattammal in the partition under Ex. A. 3 and that she in turn bequeathed those properties to Linga Pillai under her will Ex. A.6, dt. 15-4-1968. It follows therefore that Linga Pillai was competent to execute the settlement deed under Ex.A.4 dt. 24-9-1971 with reference to the suit properties in favour of the first respondent. Neither the appellant nor respondents 2 and 3 can have any claim therefore over the suit properties. The Courts below were therefore right in upholding the title of the. first respondent to the suit properties, on the strength of the settlement deed Ex. A.4 and in directing the recovery of possession of the suit properties from the appellant and respondents 2 and 3. Consequently the second appeal fails and is dismissed with costs.