Madras High Court
Lakshmiammal vs Saroja on 17 October, 2014
Author: R.Karuppiah
Bench: R.Karuppiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 17.10.2014 Coram THE HONOURABLE MR.JUSTICE R.KARUPPIAH S.A.(M.D.)No.1176 of 2006 and M.P.(M.D.)No.1 of 2006 1. Lakshmiammal 2. Thiruvona Raja .. Appellants Vs. 1.Saroja 2.Ulaganathan 3.Ramachandran 4.Poomaniammal 5.Suresh 6.Asha 7.Charulatha 8.Vallimayil 9.Kalyana Sundari 10.Krishnaveni .. Respondents Judgment Reserved on: 12.09.2014 Prayer Second Appeal filed under Section 100 of Civil Procedure Code against the decree and judgment dated 21.08.2006 made in A.S.No.20 of 2005 on the file of Principal District Court, Tirunelveli confirming the decree and judgment dated 01.04.2005 made in O.S.No.41 of 2003 on the file of Principal Subordinate Court, Tirunelveli. !For Appellants : Mr.A.Thiyagarajan ^For 1st Respondent : Mr.T.R.Rajagopalan,Senior Counsel for M/s.N.Krishnaveni For Respondents 2 to 7 & 9 : Mr.K.Srinivasan, Senior Counsel for Mr.M.P.Senthil For Respondents 8 & 10 : No Appearance :JUDGMENT
The appellants who are the defendants 10 and 11 in the original suit preferred this second appeal against the decree and judgment passed in A.S.No.20 of 2005 wherein confirmed the decree and judgment passed in O.S.No.41 of 2003.
2. For the sake of convenience, the defendants 10 and 11 in the original suit in O.S.No.41 of 2003 referred as appellants. The plaintiff in the above said suit referred as 1st respondent. The defendants 1 to 9 in the above said original suit referred as respondents 2 to 10 hereafter.
3. Heard Mr.A.Thiyagarajan, learned counsel appearing for the appellants, Mr.T.R.Rajagopalan, learned Senior Counsel appearing on behalf of learned counsel M/s.N.Krishnaveni for R1 and Mr.K.Srinivasan, learned Senior Counsel appearing on behalf of Mr.M.P.Senthil, learned counsel for R2 to R7 and R9.
4. The 1st respondent herein/plaintiff filed a suit for partition and separate possession of her 1/8 + 1/80 share in the suit properties and for mesne profits from 07/02/2000. Briefly the case of the 1st respondent is that the suit schedule properties originally belonged to Smt.Avudayammal, who died intestate on 25.04.1974. The children of Avudayammal are respondents 1, 2, 3, 8, 9, 10 and deceased Muthukumaraswamy. The above said Muthukumaraswamy pre deceased the mother, leaving behind 4th respondent as wife and respondents 5 to 7 as son and daughters. After death of Avudayammal, the above said Subbiah Nadar married the 1st appellant namely Lakshmiammal and 2nd appellant is her son through Subbiah Nadar. Subbiah Nadar expired on 07.02.2000. According to the 1st respondent/plaintiff, on the death of Avudayammal, respondents 1, 2, 3, 8 to 10, the legal heirs of the deceased Muthukumaraswamy (i.e.), respondents 4 to 7 together and the deceased Subbiah Nadar entitled equal share (i.e.) 1/8 share as per Section 15 of Hindu Succession Act. Since the above said Subbiah Nadar died on 07.02.2000, his share also devolves on the appellants and respondents. Hence, the above said 1/8 share of the deceased Subbiah Nadar has to be further divided into 10 equal share. Therefore, the 1st respondent/plaintiff filed the suit for partition of her 1/8 share + 1/80 share in the suit schedule properties.
5. The respondents 2 and 7 (D1 and D6) remained exparte before the trial court. The respondents 3 to 10 (D2 to D9) have accepted the contention of the 1st respondent/plaintiff and prayed for allotment of their shares in the suit properties.
6. The appellants who are the defendants 10 and 11 in the original suit filed a detailed written statement and denied the contention that the 1st respondent/plaintiff is entitled to 1/8 + 1/80 share in the suit properties and also denied the contention that the 1st respondent entitled to mesne profits. Further, the 1st respondent/plaintiff should prove that all the suit itelms belonged to Avudayammal. According to the appellants, the suit 1st item alone originally belonged to Avudayammal. The above said Avudayammal bequeathed the above said property by way of Will dated 30.03.1974 in favour of her husband Subbiah Nadar. Avudayammal died on 25.04.1974 and after her death, the above said Will came into force and accordingly, Subbiah Nadar entitled to the above said property and also he was in possession till his death. The further contention of the appellants is that the above said Subbiah Nadar, after death of Avudayammal, married 1st appellant as second wife on 24.01.1978 and 2nd appellant was born through 1st appellant. According to the appellants, the above said Subbiah Nadar bequeathed his properties in favour of appellants by way of a registered Will dated 28.11.1984 as last Will. The above said Subbiah Nadar died on 07.02.2000. As per the Will executed by Subbiah Nadar, both the appellants are entitled to the suit properties and the appellants are enjoying the same by paying tax to the Corporation. It is also averred in the written statement that R3 - Ramachandran, son of 8th respondent (D7) taken a portion of the suit property in Door No.183/B House from the appellants for rent. Further, the 8th respondent herein (D7) also already filed a suit for partition of her 1/9 share in the suit properties against the present appellants (D10 and D11), the 1st respondent(plaintiff) and other legal heirs of Subbiya Nadar in O.S.No.109 of 2001 and it is pending before the file of Principal Subordinate Court, Tirunelveli. In the above said earlier suit, the present 1st respondent(Plaintiff) is 5th defendant. Therefore, if any share in the properties of the deceased Subbiah Nadar, the 1st respondent ought to have claim share in the above said suit and hence, the present separate suit is not at all maintainable. Further, in the above said suit filed by the 8th respondent (D7) in O.S.No.109 of 2001, the alleged Will executed by Avudayammal dated 30.03.1974 was accepted by 8th respondent (D7), who is plaintiff in the above said suit. The respondents not properly cared the deceased Subbiah Nadar and harassed him, only the 1st appellant alone take care of the above said deceased Subbiah Nadar and hence, he executed the Will. According to the appellants, the Court fee paid under Section 37(2) of Court Fee Act is not correct and the 1st respondent should pay Court fee under Section 37(1) of Court Fee Act, since the 1st respondent not in possession. Further, the 1st respondent/plaintiff has not included all other properties and hence, the suit is bad for partial partition also. Therefore, the appellants prayed for to dismiss the suit filed by the 1st respondent herein.
7. The trial court, from the above pleadings, framed six issues including additional issue. To prove the case of the 1st respondent/plaintiff, two witnesses were examined as PW1 and PW2 and marked two documents as Exs.A1 and A2. On the side of the appellants examined two witnesses as DW1 and DW2 and marked 22 documents as Exs.B1 to B22.
8. On perusal of the above said oral and documentary evidence adduced on either side, the trial court decreed the suit as prayed for in the plaint. Aggrieved over the above said decree and judgment passed by the trial court, the appellants preferred a first appeal in A.S.No.20 of 2005 before the Principal District Court, Tirunelveli. During the pendency of the first appeal, the appellants herein filed an application in I.A.No.188 of 2005 under Order 41 Rule 27 Section 107 and 151 of CPC to adduce additional evidence. The first appellate court heard the above said application in I.A.No.188 of 2005 along with main Appeal and finally dismissed the above said I.A.No.188 of 2005 and also confirmed the decree and judgment passed by the trial court and finally dismissed the first appeal. Being aggrieved by the above said findings of the first appellate court, the present second appeal has been filed by the appellants (D10 and D11).
9. This court admitted the Second Appeal on the following substantial questions of law:-
"1.Whether the 1st Appellate Court is correct in not allowing the petition under Order 41 Rule 27 C.P.C by the appellants when the condition enumerated therein are satisfied ?
2. Whether the 1st Appellate Court is correct in coming to the conclusion that Ex.B18 is hit under section 10 of T.P.Act ?
3. Whether the 1st Appellate Court is correct in not discussing about Ex.B15 in its judgment ?
4. Whether the 1st Appellate Court is correct in coming to the conclusion Ex.B18 is not executed by Avuyadayammal when the signature of Avuyadayammal is not disputed and her participation in execution of the document is not denied and when attestators proved it ?
10. The 1st respondent/plaintiff filed this partition suit by contending that one Avudayammal and later her husband Subbiah Nadar died intestate and hence all the legal heirs including both appellants are entitled to share in the suit properties and accordingly, the 1st respondent/plaintiff claimed her 1/8 + 1/80 share in all the suit properties. Except the appellants (D10 and D11) all other legal heirs accepted the contention of the 1st respondent/plaintiff.
11. The appellants/defendants 10 and 11 contested the above said suit by stating that the original owner of the first item of the suit property (i.e.) Avudayammal bequeathed the above said first item in favour of her husband namely Subbiah Nadar under Ex.B18 Will dated 30.03.1974 and the above said Avudayammal died on 25.04.1974 and therefore, the Will came into effect and he was in possession as per the Will. It is also contended by the appellants that the above said Subbiah Nadar executed Ex.B15 registered Will dated 28.11.1984 bequeathed his properties (i.e.) suit properties in favour of the appellants and he died on 07/02/2000. After his death, the appellants are entitled to the suit properties and they are enjoying the same by paying kist, tax, etc. Therefore, all the respondents are not entitled to any share in the suit properties.
12. From the above said contentions it is clear that if the above said alleged Will Ex.B18 dated 30.03.1974 executed by Avudayammal and another alleged Will Ex.B15 dated 28.11.1984 executed by Subbiah Nadar are proved as genuine and valid documents, then the respondents are not entitled to any share in the above said properties.
13. With regard to the first Will Ex.B18, the learned counsel appearing for the appellants submitted that the appellants have examined DW2 sole available attesting witness to prove Ex.B18 Will executed by Avudayammal and therefore, the appellants complied with mandatory provisions of Section 68 of Indian Evidence Act. Further, the learned counsel submitted that the 8th respondent herein filed a suit in in O.S.No.109 of 2001 and in the plaint it is clearly admitted the first Will Ex.B18 executed by Avudayammal and so as to prove the same, the appellants have produced Ex.B3, copy of plaint. The learned counsel further pointed out that the 3rd respondent herein also admitted in his plaint in a suit filed by him in O.S.No.28 of 2001 about the first Will Ex.B18 and to prove the same, Ex.B19 copy of plaint has been marked on the side of the appellants. Further, the learned counsel pointed out that to prove the fact that Ex.B18 Will came into force after death of Avudayammal, on the side of the appellants marked Exs.B1 and B2 copy of a mortgage deed and receipt of discharge the above said mortgage. Further, on the side of the appellants marked Ex.B5 and Ex.B6 publication in Dinamalar and Malaimurasu news papers in which, referred Ex.B18 Will executed by Avudayammal. The learned counsel submitted that both courts below have not properly considered all the above said documentary and also oral evidence adduced on the side of the appellants and therefore, the findings of both the courts below regarding Ex.B18 Will are perverse and also illegal.
14. With regard to the second Will Ex.B15, the learned counsel appearing for the appellants submitted that it is a registered document and the Will has been proved in the earlier proceedings in E.A.No.113 of 2000 in E.P.No.26 of 2000 in R.C.O.P.No.14 of 1991 by examined as an attesting witness namely one Padmanaban and the above said witness later died and his deposition recorded in Rent Control proceedings was marked as Ex.B16. Apart from that the appellants tried to examine other witness before the first appellate court to prove the signature of attesting witnesses in Ex.B15, since both attesting witnesses were died, but, unable to search the relevant witness at the time of trial. Accordingly, the appellants filed an application in I.A.No.20 of 2005 and seeking permission to examine one Ramaiah, who is grand son of one of the attesting witness namely Padmanaban to prove the signature of the attesting witness, but, the first appellate court dismissed the application without any sufficient reasons. Further, the learned counsel submitted that both the courts below not accepted the second Will Ex.B15, only on the ground that the earlier Ex.B18 Will not proved and hence, Ex.B15 second Will also not proved as genuine document and rejected the same without any sufficient reasons. Hence, the above said findings of both the courts below regarding Ex.B15 Will also perverse and illegal. According to the appellants, both Will Ex.B18 executed by Avudayammal and Ex.B15 executed by Subbiah Nadar have clearly proved as prescribed in the mandatory provisions under Section 68 of Indian Evidence Act and therefore, prayed for to set aside the finding of both courts below and dismissed the suit.
15. Thelearned counsel appearing for the appellants contended that both the courts below have not considered the fact that all the properties given under Ex.B18 and Ex.B15 Wills are in exclusive possession of the appellants and to prove the possession several documents have been produced by the appellants. Further, the learned counsel pointed out that the 1st respondent has not produced any documents to prove that except the first item of the suit property, all other items belonged to Avudayammal, eventhough the appellants have specifically denied in the written statement and also at the time of evidence. Further, the learned counsel pointed out that already partition suits have been filed by other respondents wherein, the 1st respondent/plaintiff also party but, the 1st respondent has not taken steps to include any properties omitted in the above said partition suit but instead of that the 1st respondent filed separate partition suit without impleading all other properties. But, both courts below have not considered the above said contention raised by the appellants and therefore, the suit is bad for partial partition also. The learned counsel further pointed out that both courts below have correctly held that the properties given in both Wills are in possession of the appellants. Hence, the finding of both the courts below regarding both the Wills are perverse and illegal findings.
16. Per contra, the learned counsel appearing for the respondents submitted that even though the attesting witness in Ex.B18, the Will alleged to have been executed by Avudayammal has been examined as DW2 to prove the execution and attestation but, the appellants miserably failed to remove all suspicious circumstances and therefore, the findings of both courts below regarding validity of Ex.B18 are not perverse as contended by the appellants. With regard to the second Will Ex.B15, the learned counsel appearing for the respondents submitted that even though one of the attesting witness in the above said Will namely Padmanaban examined in earlier court proceedings but not examined before the trial court in this case and therefore, the execution and attestation of the above said second Will Ex.B15 is not proved as prescribed under Section 68 of Indian Evidence Act. Further, the learned counsel pointed out that the appellants have miserably failed to prove the fact that both attesting witnesses in the second Will, Ex.B15 were died and on that ground, the appellants are not entitled to file an application under Order 41 Rule 27 to examine the grand son of the attesting witness as prayed for in I.A.No.188 of 2005 and hence, the rejection order passed by the first appellate court is valid in law. The learned counsel appearing for all the respondents pointed out that even though the execution, attestation and validity of both Exs.B18 and B15 Wills are not challenged in the pleadings, the appellants as a propounder of the above said Wills should prove the execution and attestation of the Will by removing all suspicious circumstances but in the instant case, the appellants failed to remove all suspicious circumstances pointed out by the respondents and therefore, the courts below have correctly held that both Wills are not proved by removing suspicious circumstances.
17. In support of the said contention of the respondents, the learned counsel relied on decisions reported in (2003) 2 SCC 91 (Janki Narayan Bhor v. Narayan Namdeo Kadam) in which para 10 reads as under:
''It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the court. In a way, Section 68 gives a concession to those who want to prove and establish a Will in a court of law by examining at least one attesting witness even though the will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a Will. To put in other words, if one attesting witness can prove execution of the Will in terms of clause(c) of Section 63 viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of the other attesting witness can be dispensed with.'' 2008 (1) LW 241 (Benga Behera & another v. Braja Kishore Nanda & others) in which para 49 reads as follows:-
''49. Yet again in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao & Ors.(2006 (14) SCALE 186), this Court held: Section 63 of the Indian Evidence Act lays down the mode and manner in which the execution of an unprivileged Will is to be proved. Section 68 postulates the mode and manner in which proof of execution of document is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Indian Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.
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) 2 SCC 85 and Sridevi & Ors. v. Jayaraja Shetty & Ors. (2005) 8 SCC 784=2005-2- L.W.89]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.'' Noticing B. Venkatamuni (supra), it was observed:
The proof a Will is required not as a ground of reading the document but to afford the judge reasonable assurance of it as being what it purports to be.
We may, however, hasten to add that there exists a distinction where suspicions are well founded and the cases where there are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is demanded from the judge even there exist circumstances of grave suspicion. [See Venkatachala Iyengar (supra)][See also Joseph Antony Lazarus (Dead) By LRs. V.A.J.Francis, (2006) 9 SCC 515 = 2007-2-L.W.279]'' 2008 (2) CTC 135 (Sarojini and another v. Mohandoss and others) in which para 22 (9) reads as under:
''22. .....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 circumstances 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 ''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.'' 2010 (5) CTC 364 (S.R.Srinivasa and others v. S.Padmavathamma) in which para 25 reads as follows:
''25. In the case of H. Venkatachala Iyengar v. B.N. Thimmajamma, [1959 Supp (1) SCR 426] Gajendragadkar J. stated the true legal position in the matter of proof of Wills. The aforesaid statement of law was further clarified by Chandrachud J. in the case of Jaswant Kaur v Amrit Kaur [(1977) 1 SCC 369] as follows:
"1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them.
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 must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
18. In the instant case, the learned counsel appearing for both sides admitted that the first item originally belonged to Ayyammal. It is also not in dispute the relationship of the parties as averred in the plaint. In the above said circumstances, the appellants claimed title over the properties under Ex.B18 Will alleged to have been executed by Avudayammal on 30.03.1974 and also Ex.B15 Will alleged to have been executed by Avudayammal's husband namely Subbiah Nadar on 28.11.1984. On the side of the respondents have not denied the above said documents in the plaint filed by the 1st respondent or by way of filing any reply statement and other respondents also not denied in their written statements. Even then, as per mandatory provisions of Section 68 of Evidence Act, and the principles laid down by Hon'ble Supreme Court in various decisions as already referred on the side of the respondents, the appellants as a propounder of the Wills to prove the execution and attestation of the above said Exs.B18 and B15 Wills by adducing reliable evidence.
19. On a perusal of Ex.B18 Will alleged to have been executed by Avudayammal on 30.03.1974 revealed that the above said Avudayammal bequeathed two items of properties (i.e.) first item of the present suit and also other properties shown as second item (i.e.) S.No.580/3, 33 cents out of 49 cents and also in T.S.No.1377/3 out of 49 cents, 33 cents house property (i.e.) Bungalow in Door No.183/I withcompound walls. In the above said Will, the testator namely Avudayammal bequeathed the first item alone to her husband namely Subbiah Nadar and the second item bungalow with vacant site bequeathed to her sons with certain obligations (i.e.) the sons should perform poojas infront of portrait of the deceased along with daughters on two days in the month of Chitirai and 11th day of death of testator. It is also stated in the Will that all the sons should jointly enjoy the properties and if any dispute arises, all the sons should deal with the above said dispute among themselves.
20. A careful reading of the above said Ex.B18 Will revealed that the deceased Avudayammal having two items of properties and the first item was given to her husband and the second item was given to her sons. In the above said Will itself, the testator has clearly stated the reasons for not giving any share to her daughters (i.e.) as sufficient sridhana properties have been given to their daughters at the time of marriage and the daughters are well off. Therefore, as rightly pointed out by the learned counsel appearing for the appellants and also a careful reading of the averments made in the Will itself revealed that the testator had given properties to her husband and also to her sons and sufficient reasons also given for not giving any property to her daughters.
21. It is well settled principles in law is that the initial burden of proof that the Will has been validly executed and attested the document is only on the propounder of the Will. Further, it is the duty of the propounder of the Will to examine atleast one attesting witness to prove the execution and attestation of the alleged Will. Various decisions relied on by the learned counsel appearing for the respondents as already referred clearly revealed that the onus is to be discharged by the propounder of the Will by adducing prima-facie evidence regarding competence of the testator, execution and attestation of the Will as per provision of the Indian Evidence Act. If a defence of fraud, coercion or undue influence raised by other parties, the burden would be on them to prove the above said facts.
22. In the instant case, as a propounders of the Wills, burden is on the appellants to prove that both Exs.B18 and B15 Wills have been validly executed and attested and also the above said Wills are genuine documents.
23. On a perusal of Ex.B18 original Will reveals that the testator namely Avudayammal affixed her signature as executor of the Will. In the above said Will, DW2 one Chandramouli and also one Manivel affixed their signatures as attesting witness. The above said Will was written by one Sornampillai. From the evidence available on records reveal that the above said attesting witness namely Manivel and writer of the Will namely Sornampillai were died. On the side of the appellants examined the only available attesting witness namely Chandramouli as DW2. A careful reading of the oral testimony of DW2 shows that he clearly deposed as the testator namely Avudayammal executed the above said Will out of her own Will with sound disposition of mind and understanding nature. DW2 further deposed that the above said DW2 and also another attesting witness seen the signature affixed by the testator and the testator also seen the signatures of both witnesses and both witnesses alse seen their signatures each other while affixing their signature in Ex.B18 Will. On the side of the respondents have not suggested any enmity to give false evidence against the respondents. Further, the respondents have not suggested the signatures found in the Will are not the signatures of the deceased Avudayammal or attesting witnesses or writer, who signed in the Will. As already discussed, the respondents have not denied the Will in the pleadings also. From the above said oral testimony of DW2 it is clear that the above said evidence adduced by DW2 is reliable and acceptable evidence.
24. Both courts below mainly rejected the above said Will only on the main grounds that a) the above said Avudayammal has not given any property to her children, b) while at the time of execution of Ex.B18 Will, the sons and daughters of Avudayammal were not available, c) the draft Will has not been produced by the respondents d) In Ex.B18 Will, the writer of the Will was mentioned as landlord instead of document writer and hence, both courts below held that the above said four suspicious circumstances creates a doubt in the genuineness of the Will. In Ex.B18 Will, the 1st item alone was given to her husband and the 2nd item in the above said Will, it is more valuable property than the 1st item given to the sons of the testator. In the above said Will itself clearly stated the reason for not giving any property to her daughters that both daughters had given marriage by giving sufficient dowry and also spent more amount and therefore, the testator has not given any property to her daughters in the above said Will. A perusal of both courts judgment reveal that both courts below have not considered the fact that above said 2nd item's valuable property given to her sons. In the above said Will, the testator directed the sons to perform certain obligations such as early twice to perform poojas before photos of the testator and any one of the son willing to sell the property, the above said property should be transferred within three sons during their life time. On a careful reading of the contentions stated in the Will, it is revealed that in the above said obligations to be performed only during the life time of her sons and after the life time of her sons, there is no obligation for their grand Children. Only on the above ground, the contention of the respondent that the above said 2nd item was not given absolutely is not correct. The above said facts are not discussed by both courts below in their judgments and the respondents also not pleaded the above said facts in the plaint or written statement filed by the respondents.
25. Further, the 1st respondent filed the suit for several items by alleging that all the properties are originally belonged to Avudayammal. But, in the above said Ex.B18 Will, 1st item alone was shown and all other items are not included in the Will. Further, the 2nd item which includes several properties mentioned in the Will given to the sons of the testator were not included in the plaint and no reason has been assigned for not including those properties. Therefore, from the pleadings itself, it is clearly proved that the testator Avudayammal having several properties and not included in the Will in respect of all her properties. Both courts below have failed to consider the above said facts in their judgments. Further, both courts below have suspected the genuineness of the Will only on the ground that no other properties were given to the children of the testator, but, the above said contention falsified by the description of the properties in the plaint and also from the evidence. Further, as rightly pointed out by the learned counsel appearing for the appellants, the above said Ex.B18 Will has been accepted in the earlier court proceedings. In the instant case also, the execution and attestation of the above said Ex.B18 Will clearly proved by examining sole available attesting witness DW2. The above said Ex.B18 Will has not been denied in the pleadings. The respondents have not suggested at the time of evidence that at the time of execution of the Will, the testator was not in sound disposition state of mind or the testator has not affixed her signature. Therefore, the appellants have clearly proved the execution and attestation of Ex.B18 Will by adducing reliable evidence of attesting witness and also proved that the above said Will came into effect after the death of the testator by adducing several reliable documents. Further, some of the legal heirs of the testator, who are parties in the suit have clearly admitted the above said Will in earlier proceedings also. Hence, the finding of both courts below wherein rejected the above said Will, on the ground that the testator has not given any share in the properties to the children, at the time of execution of the Will, the children are not available, the writer of the Will only stated as landlord, draft Will was not produced by the appellants etc., are perverse and also illegal findings as rightly contended by the appellants. In the above circumstances, on the side of the appellants have examined DW2 sole attesting witness to prove the execution and attestation of Ex.B18 Will as per mandatory provision of Section 68 of Indian Evidence Act. Absolutely, there is no pleadings about any suspicious circumstances in execution of the above said Will on the side of the respondents. But, both courts below have wrongly held as if there exist some suspicious circumstances and the propounder has not removed the above said suspicious circumstances by acceptable evidence. Therefore, the above said findings of both courts below are not correct, since the appellants have proved the execution, attestation and genuineness of Ex.B18 Will by removing all reasonable doubts and therefore, fourth substantial question of law is answered in favour of the appellants and as against the respondents.
26. With regard to the second substantial question of law, the learned counsel appearing for the appellants submitted that both courts below have wrongly held as if Ex.B18 Will executed by Avudayammal is hit under Section 10 of Transfer of Property Act. The learned counsel further submitted that in the above said Will, there is no full and complete restrain prohibiting alienation of the property and hence, the findings of both courts below that the above said Will Ex.B18 is hit under Section 10 of Transfer of Property Act, is absolutely illegal and also perverse finding. As already discussed in earlier paras and also on perusal of Ex.B18 Will executed by Avudayammal revealed that it is not permanently prohibited the alienation of the property. In the above said Will revealed that the testator has directed her sons to perfom ceremony before her photos along with her daughter, in two occasions and also the sons are jointly enjoying the same and if any dispute arises among her three sons, dealing with the property among the above said three sons, no other restrictions imposed particularly no obligation has imposed after the death of her sons. Therefore, the above said obligations are only temporary during the life time of her sons alone. It is also revealed that the above said property is worth more than the property given to the husband of the testator. Hence, the findings of both courts below as if the above said Will is not valid since it is hit under Section 10 of Transfer of Property Act, also perverse and illegal finding. Therefore, second substantial question of law is answered accordingly.
27. The 1st and 3rd substantial question of law are concerned, the learned counsel appearing for the appellants submitted that the appellants claiming title under the second Will (i.e.) Ex.B15 registered Will executed by Subbiah Nadar, in favour of the appellants and the above said Will has been proved as per mandatory provision under Section 68 of Indian Evidence Act. The learned counsel further submitted that the sole available attesting witness was already examined in the earlier proceedings and the above said deposition was marked in this proceedings as Ex.B16, since the above said witness died at the time of filing the present suit. The learned counsel further pointed out that the above said attesting witness examined in earlier proceedings clearly deposed about the execution and attestation as prescribed by mandatory provision of Section 68 of Indian Evidence Act and there is no need to further evidence to prove the above said Will. The learned counsel further submitted that in spite of it, the appellants have tried to examine the legal heirs of the deceased attesting witnesses to prove the signatures of the attesting witness, since both attesting witnesses were died at the time of trial but unable to trace out the legal heirs of the attesting witnesses. The learned counsel further submitted that only during the pendency of the first appeal, one of the legal heir of the attesting witness namely Ramaiah was available to give evidence regarding the signature of the attesting witness in the Will and about the death of the attesting witnesses and therefore, filed an application in I.A.No.20 of 2005 under Order 41 Rule 27 Section 107 and Section 151 CPC to adduce additional evidence, but, the first appellate court has wrongly dismissed the above said application. The learned counsel further submitted that even not examining the above said witness, the above said Will was proved by adducing Ex.B16 deposition of deceased attesting witness in earlier proceedings and hence, the execution and attestation of the above said Will has been proved by the appellants. Further, the learned counsel pointed out that the appellants have clearly stated the above said execution of Ex.B15 registered Will executed by Subbiah Nadar but, the 1st respondent/plaintiff has not denied the above said Will in the plaint or by way of reply statement and other respondents are also not denied in their written statement but both courts below have not considered the above said facts. The learned counsel further submitted that both courts below have not discussed in detail about the execution and attestation of second Will Ex.B15 by Ex.B16 deposition of deceased attesting witness, but, mainly rejected the above said Will on the ground that the earlier first Will Ex.B18 has not been proved and also on the ground that the above said Subbiah Nadar has not given any property to the respondents.
28. The above said alleged Will Ex.B15 executed by Subbiah Nadar is a registered document. In the above said Will, the testator has affixed his signature and attested the above said Will by two attesting witnesses namely one Padmanaban and Palvannan. From the evidence adduced on either side revealed that both attesting witnesses were died. Therefore, on the side of the appellants marked Ex.B16 oral evidence of the deceased attesting witness namely Padmanaban in an earlier proceedings in E.A.No.113 of 2000 in E.P.No.26 of 2000 in R.C.O.P.No.14 of 1991. In the above said attesting witness in Ex.B15 registered Will deposed before the competent court as follows:-
'',we;Jnghd Rg;igah ehlhiu bjhpa[k;/ 1. 2 kDjhuh;fs; bjhpa[k;/ Rg;igah ehlhh; capUld; ,Uf;Fk;bghGJ mtuJ brhj;Jf;fs; rk;ge;jkhf capy; vGjp itj;jhh;/ 28;/11;/1984 Mk; tUlk; vGjp itj;jhh;/ mJ gjpt[ bra;ag;gl;l capy;/ capy; vGJtjw;F Kd;g[ Rg;igah ehlhh; vdf;Fk; ,we;J nghd ghy;tz;z IaUf;Fk; jfty; vGjptpl;lhh;/ capy; vGjp vGj;Jf;fhuUf;F Rg;igahehlhhjhd; MjhukvGj jfty; bfhLj;jhh;/ capy; vGJk;nghJ Rg;igah ehlhh; ey;y epiyapy; ,Ue;jhh;/ jplfhj;jpukhft[k; Raepidt[ld; ,Ue;jhh;/ capypy; jfrpy; tpguk; kw;Wk; brhj;J ahUf;F nruntz;Lk; vd;gjw;F Rg;igah ehlhh; jhd; jfty; brhd;dhh;/ Kjypy; capy; rk;ge;jkhf ouhg;l; vGjpdhh;fs;/ mij Rg;igah ehlhh; rhp ghh;j;jgpd;g[ vGjpdhh;/ ouhg;il goj;Jghh;j;J rhp vd;W Rg;igah ehlhh; mry; Mjhuk; vGjp Rg;igahehlhUf;F goj;Jf; fhl;odhh;fs;/ Kjypy; vGjpa ouhg;il fpHpj;Jg;nghl;lhh;fs;/ Rg;igah ehlhh; ifbaGj;J bjhpa[k;/ capypy; mth; ifbaGj;J cs;sJ/ capy; vGjp Koj;jt[ld; Rg;igahehlhh; Kjypy; ifbaGj;Jg; nghl;lhh;/ mth; ifbaGj;Jg; nghLtij ehDk; ghy;tz;z IaUk; ghh;j;njhk;/. Kjypy; ghy;tz;z Iah; rhl;rpifbaHj;J nghl;lhh;/ ghy;tz;z Iah; tf;fPyhf ,Ue;jhh;/ gpd;g[ ehd; rhl;rp ifbaGj;J nghl;nld;/ ehd; rhl;rp ifbaGj;J nghl;lij Rg;igahehlhh; ghh;j;jhh;/ Mjhuk; vGjpa md;nw kjpak; 2 Kjy; 3 kzpf;Fs; Tl;L ,izgjpthsh; mYtyfj;jpy; Mjhuj;ij Rg;igah ehlhh; jhf;fy; bra;jhh;/ capypy; ,d;dhbud epU:gpj;jth; vd;gjw;F ghy;tz;zIaUk; ehDk; bfbaGj;J nghl;nlhk;/ ,e;j capy;jhd; Rg;igahehlhh; vGjp filrp capy;;/ mjd; mry; capy; k/rh/M/2/''
29. The above said witness was cross-examined by other side in the above said proceedings. A perusal of entire chief and cross-examination of the above said witness clearly revealed that the testator namely Subbiah Nadar executed Ex.B15 registered Will on his own with sound state of mind and the above said Will was duly executed and attested by witnesses. Both courts below have failed to consider the above said evidence and both the courts below not accepted the Will only on the ground that these respondents are not parties in the above said proceedings. As rightly pointed out by the learned counsel appearing for the appellants, the above said Will was proved by examining the attesting witness before the competent court in earlier Court proceedings and the above said witness died later and in the above said circumstances, both courts below have wrongly rejected the above said evidence and therefore, the findings of both courts below are perverse and also illegal. On the side of the respondents have not stated in the pleadings or at the time of evidence that both witnesses are alive at the time of marking the above said document and also has not objected on the ground that the above said witness was alive. DW1 has not cross-examined as the above said witness was alive. In the above said circumstances, the learned counsel appearing for the respondents would submit that in the application filed by the appellants in I.A.No.20 of 2005 to examine additional evidence before the appellate court, the 8th respondent stated in her counter as both witnesses are alive, but the appellants herein not produced any certificate to prove the death of the witnesses and therefore, both courts below rightly rejected the above said application in I.A.No.20 of 2005. A perusal of pleadings and also the oral evidence adduced on either side revealed that both witnesses were died and nowhere the respondents suggested that both attesting witnesses are alive. The counter filed by the 1st respondent/plaintiff in the above said I.A.No.20 of 2005 also not stated as both witnesses are alive. Only 8th respondent in the above said I.A., stated as if they are alive but not produced any materials to prove the above said contention. Therefore, considering the entire oral and documentary evidence and pleadings revealed that both witnesses were died and not available to give evidence and therefore, Ex.B16 deposition of one of the deceased attesting witness in earlier court proceedings is to be considered to decide the attestation and execution of the Will. As already discussed, the above said attesting witness has clearly deposed about the execution and attestation, sound state of mind and all other relevant factors. Hence, as rightly pointed out by the learned counsel appearing for the appellants that the execution and attestation of the above said Ex.B15 Will also duly proved by producing Ex.B16 deposition copy of one of the deceased attesting witness. The learned counsel appearing for the appellants submitted that only to prove the false contention of the respondents, the appellants have tried to examine the legal heirs of the attesting witness to prove the signature of the deceased attesting witness by filing an application but the first appellate court has wrongly rejected the above said application. In spite of it, as already discussed, the Ex.B15 Will has been proved as prescribed by law.
30. The learned counsel appearing for the appellants further submitted that the above said Ex.B15 Will was came into effect after the death of testator namely Subbiah Nadar and the appellants are in possession. On a perusal of Ex.B4 dated 23.05.200, revealed that the patta has been transferred from the name of Subbiah Nadar and granted patta in the name of 1st appellant namely Lakshmiammal. Further, the appellants have paid house tax for several years before filing the suit under Ex.B6 to Ex.B14. Further, the appellants have produced Ex.B17, rental agreement wherein the 3rd respondent herein namely Ramakrishnan agreed to pay the rent to the 1st appellant for the suit property in Door No.183/GH. Further, under Ex.B19, the same 3rd respondent namely Ramachandran filed a suit in O.S.No.28 of 2001 wherein he accepted the earlier first Will executed by Avudayammal and also the above said Will came into effect. In the averments in the plaint filed by the 1st respondent revealed that the possession of the appellants also admitted. The appellants have produced Ex.B20 and Ex.B21 plaint filed by the 4th respondent namely Poomani, the decree and judgment made in the above said suit. From the above said documents also proved the possession of the appellants in the properties bequeathed in Ex.B15 Will. Therefore, the alleged Ex.B15 Will executed in favour of the appellants also proved as prescribed by the provision of law and also came into effect after the death of the testator and the appellants are in possession in terms of Ex.B15 Will. But, both courts below wrongly held that the above said Will has not been proved and also wrongly rejected the application filed by the appellants. Hence, the above said substantial questions of law 1 and 3 also answered in favour of the appellants.
31. As already discussed, on the side of the appellants have proved the execution and attestation of both the Wills Ex.B18 and Ex.B15 relied on by the appellants by reliable oral and documentary evidence. Further, both courts below have failed to consider the fact that the above said Wills are not denied by the respondents in the pleadings and also not raised any reasonable suspicious circumstances in execution and attestation of the Will. Further, the respondents not disputed the possession of the properties given under Ex.B18 and Ex.B15 Wills. Therefore, the finding of both courts below regarding execution and attestation of Ex.B18 and Ex.B15 Wills are perverse and illegal findings as rightly pointed out by the learned counsel appearing for the appellants.
32. The 1st respondent/plaintiff filed the suit for partition in respect of four items of properties. Admittedly, the 8th respondent herein namely Vallimayil already filed the earlier suit for partition in O.S.No.109 of 2001 in respect of three items of same properties except one item. In the above said earlier suit, all the parties in the present suit are also arrayed as parties. In the above said circumstances, the 1st respondent has not stated any reason why separate suit filed for partition since the 1st respondent/plaintiff in the suit also 5th defendant in the above said partition suit. As rightly submitted by the learned counsel appearing for the appellants, the 5th respondent can claim share in the above said suit itself and need not file separate suit. Further, on the side of the appellants have clearly stated in the written statement that all the properties are not included in this partition suit and therefore, the suit is bad for partial partition. Admittedly, the 1st respondent has not include the 2nd item in the first Will Ex.B18 wherein bequeathed the above item by Avudayammal in favour of her sons and no reason has been given by the 1st respondent for not including the above said property. The 1st respondent filed a suit for several items by contending that all the suit properties belonged to Avudayammal. The appellants have clearly stated in the written statement that except the 1st item all other properties not belonged to Avudayammal. In the above said circumstances, the first respondent/plaintiff has not produced any documents except Exs.A1 and A2, the death certificates of Avudayammal and Subbiah Nadar. As a plaintiff, it is the duty of the 1st respondent to produce documents to prove that all the properties belonged to Avudayammal as pleaded in the plaint. But, in the instant case, the 1st respondent failed to produce any one of the document to prove all the properties are belonged to Avudayammal. Therefore, the 1st respondent has suppressing several facts including earlier partition suits are pending. Hence, the 1st respondent not entitled to the relief of partition as rightly pointed out by the learned counsel appearing for the appellants.
33. This Court under Section 100 CPC is entitled to take into the consideration whether the reasons given by both courts below are sustainable in law and also considered whether the findings of both the courts below are not supported by evidence or misconceive, erroneous or perverse. In such circumstances, this Court can interfere in the findings of both courts below in the second appeal. In this regard, the decision reported in 1998 (1) CTC 477 (Muthu Goundar v. Poosari @ Palaniappan and 4 others) referred various decisions regarding scope of Section 100 of Code of Civil Procedure in paras 11 to 14 is extracted as under:-
''11.Now, I shall consider the scope of Section 100 of Code of Civil Procedure. In Kochu Kakkada Aboobacker v. Attah Kasim, 1996(7)SCC389 their Lordships of the Supreme Court have held that, ''When the trial Court and the first appellate Court fail to consider the relevant document in proper perspective and effect of those documents on the rights of the parties, this Court is entitled to reconsider the evidence by drawing inferences from the admitted documents.''
12. In Seeni Ammal V.Veerayee Ammal, 1997(1)CTC 360: 1996(2) LW 461, P.Sathasivam, J. after considering the earlier case laws has concluded, ''If the findings of the Courts below are not supported by evidence or are based on misconception or erroneous, and perverse, this Court can interfere in the second appeal.''
13. In Major Singh v. Ratan Singh 1997 (3) SCC 546 their Lordships of the Supreme Court have held, ''Under these circumstances, when the Courts below have rejected and disbelieved the evidence on the ground that the propounder had not properly discharged his duty, it is the duty of the High Court... to consider whether the reasons given by the Courts below are sustainable in law. In view of the above reasoning of the trial court as affirmed by the appellate court, necessarily the High Court requires to go into that question to test the reasons. In this perspective, the High Court has rightly gone into that question and found that the reasons given by the courts below are flimsy. Thus there is substantial question of law that has arisen for consideration and the High Court has rightly considered the question, we entirely agree with the High Court.''
14.In A.Irudayasamy v. Perumal Naidu, 1997 (1) LW 474 Subramani, J. with regard to power of this Court under Section 100 of the Code of Civil Procedure has concluded thus:
''The High Court under S.100 C.P.C. is entitled to take into consideration the question whether the material evidence and relevant circumstances were considered by the lower Courts. This Court is also entitled to consider whether the finding of the lower Appellate Court is based on evidence, and whether the evidence is based on pleadings. If the finding of the lower Appellate Court is based only on surmises or on wrong application of law, and it is not based on evidence or pleadings, this Court is entitled to interfere with that finding.''
34. In the instant case as already discussed, the findings of both the courts below are not supported by reliable evidence and also not considered the evidence is not based on the pleadings. Further, the above said judgment are based on misconception, erroneous, perverse, on surmises and also wrong application of law. Therefore, the above said findings of both the courts below are liable to be set aside and the appeal is to be allowed and the suit filed by the 1st respondent is liable to be dismissed.
35. In the result, the second appeal is allowed and the decree and judgment passed by both courts below are set aside and the original suit filed by the 1st respondent is dismissed. No order as to costs. Consequently, connected miscellaneous petition is closed.
To
1. The Principal District Court, Tirunelveli.
2. The Principal Subordinate Court, Tirunelveli.