Madras High Court
K.P.Uthirasamy vs V.Janaki on 24 February, 2011
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.02.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Appeal Suit (First Appeal) No.641 of 2007 1. K.P.Uthirasamy 2. K.P.Boopathy .. Appellants Vs. 1. V.Janaki 2. Palaniammal 3. Mylathal 4. Easwari .. Respondents Appeal Suit (First Appeal) against the judgment and decree dated 25.8.2006 in O.S.No.790 of 2004 on the file of the Additional District Court (Fast Track Court No.III), Coimbatore. For appellants : Ms.P.T.Asha for M/s.Sarvabhauman Associates For respondents : Mr.M.Venkatachalapathy, Senior Counsel for Mr.M.Sriram for RR-1 & 2 RR-3 & 4 notice served JUDGMENT
Appeal Suit (First Appeal) against the judgment and decree dated 25.8.2006 in O.S.No.790 of 2004 on the file of the Additional District Court (Fast Track Court No.III), Coimbatore.
2. The averments in the plaint are as follows:
(a) The plaintiffs are the sisters of the defendants. They are the children of Palanisamy Konar and his wife Pongammal. The said Palanisamy Konar and Pongammal are having four daughters and they are the plaintiffs and defendants 3 and 4 and the sons are defendants 1 and 2.
(b) Palanisamy Konar died on 26.5.1982, and their mother Pongammal died on 16.1.1994. Both of them died intestate, leaving behind the plaintiffs and defendants as their heirs. After the death of Palanisamy Konar, defendants 1 and 2 were promising to give the share in the suit properties and they also used to give portion of the agricultural produce to the plaintiffs.
(c) Defendants 1 and 2 cannot have any exclusive right, title or interest over the suit properties. The plaintiffs' father purchased the properties under a registered sale deed dated 3.11.1958 and he acquired the properties by way of Partition Deed dated 18.10.1995. So, both the plaintiffs and defendants are entitled to equal share in 'A' and 'B' schedule properties. 'B' schedule properties are house properties and 'A' schedule properties are agricultural lands.
(d) The defendants 1 and 2 partitioned the properties as per the Partition Deed dated 18.10.1995. The plaintiffs are not parties to the said Partition Deed and hence, the same is not valid and binding on them.
(e) The plaintiffs are entitled to share in the suit properties. Hence, they have come forward with the present suit for partition, claiming preliminary decree of 2/6 share in the suit properties and to appoint a Commissioner to divide the suit properties and to determine the mesne profits from the date of suit till the date of delivery of possession and for costs of the suit.
3. The gist and essence of the written statement filed by the first and second defendants are as follows:
(a) The plaintiffs have ceased to be the members of the family of Palanisamy Konar eversince their marriage, which took place long back.
(b) At the time of filing the present suit, the first plaintiff was aged 39 years and was given in marriage in 1982, the second plaintiff aged 48 years, was given in marriage in 1971, the third defendant aged 50 years, was given in marriage in 1969 and the fourth defendant aged years, was given in marriage in 1973.
(c) The defendants 1 and 2 are enjoying the properties for the period more than the statutory period. The landed properties were allotted to the defendants 1 and 2 under the Partition Deed dated 11.12.1985 between Muthukali Konar, son of Nagamuthu Konar, defendants 1 and 2 and Saravanamuthu Konar, S/o Nagamuthu Konar, which were sold by defendants 1 and 2 to third parties without any protest or objection either by the plaintiffs or defendants 3 and 4.
(d) Portions of land in Survey Nos.350 and 351 of Vellalore Village, were acquired by the State Government under the provisions of Land Acquisition Act. The defendants 1 and 2 claimed compensation for the same and received. Neither the plaintiffs nor defendants 3 and 4 made any claim.
(e) The schedule mentioned properties in the plaint, and other properties were acquired by the joint exertions of the father of the parties and his brothers, sometimes by one of them and sometimes by all of them.
(f) When Palanisamy Konar was alive, he executed a Will on 15.4.1982 while he was in a sound and disposing state of mind and the Will was also registered. The plaintiffs and defendants 3 and 4 are fully aware of the execution of the Will.
(g) Under the said Will, Palanisamy Konar bequeathed his entire properties including the suit properties absolutely in favour of defendants 1 and 2. Neither the plaintiffs, nor defendants 3 and 4, questioned the abovesaid Will. After a long time, they have now come forward with the false claim.
(h) The defendants 1 and 2 are exclusively enjoying the properties bequeathed to them under the Will of their father, asserting title in themselves, openly and hostilely to all their sisters, and they thus have ousted the plaintiffs and defendants 3 and 4 from claiming any share in the suit properties and other properties. Then only, defendants 1 and 2 have divided the properties between themselves under the registered Partition Deed dated 18.10.1995. During that period, neither the plaintiffs nor defendants 3 and 4 raised any objection.
(i) On 11.12.1985, there was a partition among the three brothers, namely Muthukali Konar, Palanisamy Konar and Saravanamuthu Konar and sons of Nagamuthu Konar and A schedule properties were allotted to Muthukali Konar, B schedule properties were allotted to defendants 1 and 2, and C schedule properties were allotted to Saravanamuthu Konar. and the said Partition Deed was accepted and acted upon.
(j) On 29.7.1994, some of the properties held by Saravanamuthu Konar and defendants 1 and 2, were partitioned between them, in which A schedule properties were taken separate possession by Saravanamuthu Konar and B schedule properties were taken separate possession by defendants 1 and 2. On 18.10.1995, defendants 1 and 2 effected a partition between them in which item 1 in A schedule properties, 15 cents in S.F.No.351/1 and other lands in A schedule properties, and item 2, were allotted to the second defendant and in S.F.No.251/3 in item 1 of A schedule and 2 acres 15 cents in S.F.No.782/2 of Chettipalayam Village in item 2 of A schedule properties, were allotted to the first defendant. The first defendant was allotted the house bearing Door Nos.68 and 70-A along with adjacent vacant sites in the partition.
(k) The averment that the father of the parties Palanisamy Konar died intestate, is false. The allegation that defendants 1 and 2 were all along promising to give the share in the suit properties and they also used to give portion of the agricultural produces to the plaintiffs, is false and incorrect.
(l) There is no cause of action for the suit. The properties were not properly valued. The defendants 1 and 2 prayed for dismissal of the suit.
4. The sum and substance of the written statement filed by the fourth defendant are as follows:
The relationship between the parties are admitted. The third and fourth defendants and the plaintiffs, are not entitled to any share in the suit properties. All the daughters of Palanisamy Konar know about the Will executed by him on 15.4.1982, giving his properties only to his sons. The plaintiffs and defendants 3 and 4 all have been married long back with sufficient "Seers" and expenses. The daughters have no share in the properties. The third defendant does not claim any share in the suit properties. The suit is barred by limitation. No pre-suit notice has been issued. He prayed for dismissal of the suit.
5. The trial Court, after considering the averments both in the plaint and in the written statement, and the arguments of the learned counsel for the appellants/D1 and D2 and the respondents 1 and 2/plaintiffs and the respondents 3 and 4/defendants 3 and 4 having been set ex-parte, framed two issues for consideration, and upon considering the oral evidence of P.W.1 and D.Ws.1 and 2 and the documentary evidence of Exs.A-1 to A-3 and Exs.B-1 to B-13, decreed the suit granting preliminary decree of partition, and holding that Ex.B-13 Will is not true and genuine document and disbelieving the evidence of D.W.2, the attestor of the Will, against which, the present First Appeal has been preferred by the appellants/D1 and D2, namely the sons of Palanisamy Konar.
6. After hearing the arguments of the learned counsel for the appellants/D1 and D2 and respondents 1 and 2/plaintiffs and respondents 3 and 4/defendants 3 and 4, though notice served, did not appear either in person or through counsel, this Court frames the following points for determination in this First Appeal:
(i) Whether the trial Court is correct in holding that Ex.B-13 Will is not true and genuine document ?
(ii) Whether the trial Court is correct in granting preliminary decree of partition of 2/6 share in the suit properties ? and
(iii) To what reliefs the appellants/defendants 1 and 2, are entitled to ?
7. Learned counsel for the appellants/defendants 1 and 2 contended that respondents 1 and 2/plaintiffs are the sisters of the appellants and the respondents 1 and 2/plaintiffs have filed the present suit for partition and separate possession of 2/6 share in the suit properties, stating that their father Palanisamy Konar is the owner of the properties and he died intestate and hence, they are entitled to share in the suit properties. A-schedule properties are agricultural lands and B schedule properties are house properties. The defence raised by the appellants/defendants 1 and 2 is that their father executed a registered Will and bequeathed his properties in favour of two sons (appellants 1 and 2) under Ex.B-13 Will on 15.4.1982 and after the death of their father on 26.5.1982 as evidenced by Ex.A-1 Death Certificate of Palanisamy Konar, the appellants/defendants 1 and 2 have dealt with the properties under Ex.B-11 and some properties have been acquired by the State Government and the compensation has been received only by the appellants/defendants 1 and 2 and during the period, the respondents 1 to 4/defendants 1 and 2 and plaintiffs never raised their little finger and they kept quiet all along and on 15.4.1982 onwards, they were in possession and enjoyment, hostile to the interest of the sisters with their knowledge for more than the statutory period and so, they have prescribed title by adverse possession by ouster.
8. Further, learned counsel appearing for the appellants/defendants 1 and 2 submitted that the attestor to the Will/D.W.2 Somasundaram was examined to prove Ex.B-13 Will, but the trial Court committed error in discarding and rejecting the evidence of D.W.2 without assigning convincing reasons. He further submitted that disinheriting the legal heir, is not a suspicious circumstance and there is no suspicious circumstances for execution of Ex.B-13 Will and to substantiate his arguments, learned counsel for the appellants/defendants 1 and 2 relied upon various decisions of the Apex Court.
9. Learned counsel for the appellants/defendants 1 and 2 further submitted that Ex.B-13 Will is a true and genuine document, which is not suffering from any suspicious circumstances and the Will has been proved by the appellants/defendants 1 and 2 by way of examining D.W.2, dispelling the suspicious circumstances alleged by respondents 1 and 2/plaintiffs, so, the trial Court ought to have accepted Ex.B-13 Will and dismissed the suit and hence, he prayed for allowing the appeal, dismissing the suit.
10. Learned Senior Counsel appearing for the respondents 1 and 2/plaintiffs submitted that the suit properties are the properties of the father Palanisamy Konar and the plaintiffs and the defendants are the legal heirs to succeed to the properties. He further submitted that the appellants/defendants 1 and 2 put forth Ex.B-13 Will, which is suffering from suspicious circumstances. D.W.2 is admittedly working along with the second respondent. The trial Court considered the evidence of D.W.2 and rejected the evidence of D.W.2 and came to the correct conclusion that Ex.B-13 is not a true and genuine document and so, the trial Court is correct in holding and granting preliminary decree of partition since the Will was not proved. Learned Senior Counsel appearing for the respondents 1 and 2/plaintiffs relied on the decisions of Courts and submitted that the father was suffering cancer and he was undergoing treatment and the Doctors themselves have lost hope and so, he was discharged from the hospital. The Will is alleged to have been executed on 15.4.1982 and the father died on 26.5.1982 and so, the mental and physical condition was not stable and so, he was not in a sound and disposing state of mind to execute the Will Ex.B-13 and the Will is not a free Will and it does not contain the description of the properties on the date of the alleged execution of Ex.B-13, the wife of Palanisamy Konar has been alive and no provision has been made in the Will for his wife, no reason has been assigned as to why the testator (father) disinherited his daughters and this suspicious circumstance has not been dispelled by the propounder, so, the trial Court considered all the aspects in proper perspective and came to the correct conclusion and the learned Senior Counsel therefore prayed for dismissal of the First Appeal.
11. It is necessary to know the genealogy of the family of the plaintiffs and defendants, to decide the case:
Nagamuthu Konar | | |------------------------------------------------------|------------------------------------------------------| Muthukali Konar Palanisamy Konar Saravanamuthu Konar = (died on 26.5.1982) Pongammal (wife) | (died on 16.1.1994) | |-------------|------------------|------------------|---------------|---------------| Janaki Palaniammal Uthirasamy Boopathy Mylathaal Easwari (1st pltiff) (2nd pltiff) (1st defdt) (2nd defdt) (3rd defdt) (4th defdt)
12. The appellants/defendants 1 and 2 have filed documents Exs.B-1 to B-3, which shows that Palanisamy Konar purchased the properties under Ex.B-3. The title documents are Exs.B-1 and B-2. Exs.B-4 and B-5 are the promissory notes discharged out of the sale consideration mentioned under Ex.B-3, which was executed by Venkatachala Konar. Ex.B-6 properties have been purchased both by Palanisamy Konar and his brother Saravanamuthu Konar on 6.12.1967. Some properties were purchased by them jointly. After the death of Palanisamy Konar, the properties belonging to Muthukali Konar, Saravanamuthu Konar and Palanisamy Konar, have been divided under Ex.B-7 registered Partition Deed, dated 11.12.1985. In Ex.B-7, A schedule properties were allotted to Muthukali Konar and B schedule properties to the appellants/first and second defendants and C schedule properties to Saravanamuthu Konar. Under Ex.B-8 Partition Deed , dated 29.7.1994, the properties jointly purchased by Saravanamuthu Konar and Palanisamy Konar, have been divided between Saravanamuthu Konar and the appellants/defendants 1 and 2, and in Ex.B-8, A schedule properties were allotted to Saravanamuthu Konar and B schedule properties to the appellants/defendants 1 and 2 and after that, on 18.10.1995, the appellants 1 and 2 have divided the properties under Ex.B-9 on 18.10.1995. A-schedule properties to the first defendant and B schedule properties to the second defendant.
13. It is pertinent to note that during the lifetime of Palanisamy Konar, under Ex.B-10 Partition Deed, dated 15.11.1978, they have partitioned the properties and A schedule properties were given to Palanisamy Konar and B schedule properties to Saravanamuthu Konar, and this has clearly proved that the three brothers, namely Muthukali Konar, Saravanamuthu Konar and Palanisamy Konar have purchased the properties and divided the same; Palanisamy Konar and Saravanamuthu Konar have purchased the properties separately and some properties were divided under Ex.B-10 among themselves and after the death of Palanisamy Konar, it was divided under Ex.B-8 on 29.7.1994. After the death of Palanisamy Konar, three sons of Nagamuthu Konar have divided the properties under Ex.B-7 on 11.12.1985. So, the properties belong to the family of Palanisamy Konar, which is not disputed.
14. Now, the only dispute is as to whether Palanisamy Konar died intestate or he made testamentary disposition.
15. The respondents 1 and 2/plaintiffs raised a plea that their parents died intestate and so, they are entitled to equal share along with their brothers/appellants 1 and 2/defendants 1 and 2. Per contra, the appellants/D1 and D2 have put forth their claim on the basis of Ex.B-13 Will alleged to have been executed by their father on 15.4.1982. It is well settled principle of law that the propounder of the Will, must prove the Will in accordance with law so as to dispel the suspicious circumstances. So, this Court has to decide as to whether the appellants/D1 and D2 being the propounder of the Will, have proved the Will or not. To prove the Will, they have examined D.W.2 Somasundaram. It is well settled principle of law that examination of one of the attestors to the Will, is sufficient, provided his evidence is cogent, convincing and trustworthy and then only, the evidence could be relied upon by the Court. But the trial Court rejected the evidence of D.W.2
16. Now, it is the duty cast upon this Court to scrutinise the evidence of D.W.2 and decide as to whether the evidence of D.W.2 is trustworthy and reliable.
17. On a perusal of the evidence of P.Ws.1 and 2, it is seen that admittedly, Palanisamy Konar died of cancer. He was admitted in Dr.Sengaliappan Hospital, from where he was discharged and admitted in Kuppusamy Naidu Hospital and as he was suffering from the advanced stage of cancer, he was discharged and subsequently admitted in ESI Hospital, and thereafter he died.
18. In such circumstances, it is the duty cast upon the appellants/D1 and D2 to prove that at the time of execution of Ex.B-13, their Palanisamy Konar was sound and disposing state of mind and also out of his free volition, whether the Will was executed. To prove the same, D.W.2 Somasundaram, one of the attestors to the Will, was examined. Through the evidence of D.W.2, the attestation has been proved, as per Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. In his evidence in cross-examination, D.W.2 fairly conceded that at the time of execution of the Will, himself and the second defendant were working in Saradha Mill and he further stated that the deceased-testator Palanisamy Konar was admitted in Sengaliappan Hospital from where the deceased-testator Palanisamy Konar was diagnosed for Cancer and the deceased-testator was in that hospital for ten days and then, he was discharged stating that the Cancer was in advanced stage and subsequently, he was admitted to Kuppusamy Naidu Hospital and they have also suggested that the Cancer was in the advanced stage from where also, he was discharged and was in the house for ten days and subsequently admitted in ESI Hospital and later he died. This shows that Palanisamy Konar was admitted in hospital and then only he was discharged and only after that, he executed the Will. In his cross examination, D.W.1 has specifically stated that he does not know the date of execution of the Will. He himself stated that he does not know that at the time of execution of the Will, whether he was suffering from illness and he also stated that he does not know as to who gave the information for writing the Will. D.W.2 also fairly conceded that he was not present at the time of writing the Will. So, the evidence of D.W.2 is necessary for deciding the case. In his evidence, D.W.2 has stated in his chief examination as follows:
VERNACULAR (TAMIL) PORTION DELETED
19. In the cross examination, DW2 fairly conceded that in the Will, it was specifically mentioned that the properties in the administration of Palanisamy Konar, have been bequeathed. It is relevant to notice the following portion of his evidence in cross examination:
VERNACULAR (TAMIL) PORTION DELETED
20. Further, a suggestion was posed to D.W.2 since Palanisamy Konar was in death bed, himself and the second appellant have concocted and presented the Will, has been denied by him. In his cross examination, he has candidly admitted that Palanisamy Konar came to house and called him. He further stated that he came by walk to his house. But this Will has clearly proved that since both the second appellant and D.W.2 were working in the very same Saradha Mill, to oblige the appellants/D1 and D2, D.W.2 came forward with such an evidence. Admittedly, the deceased Palanisamy Konar has been suffering from Cancer disease and it was diagnosed at Sengaliappan Hospital and he was admitted there and they expressed that there is no scope for survival of the Palanisamy Konar and hence, he was discharged and subsequently, he was admitted in Kuppusamy Naidu Hospital and there also, they have expressed that there is remote chance or no chance for survival and hence, he was discharged and he was in his house and after that only, he was admitted in ESI Hospital, where he died and these facts have clearly proved that the said Palanisamy Konar was suffering from Cancer which was at the advanced stage, he went to the house of D.W.2 and requested him to be a witness for the execution of the Will, that too, he is not the friend of the testator and is only the friend of the second appellant. So, it is clearly proved that the evidence of D.W.2 is not trustworthy to help his friend, he has deposed such evidence. The trial Court has considered the evidence of D.W.2 and came to the correct conclusion that his evidence is not trustworthy and unreliable.
21. The other witness to the Will is Balakrishnan, who was not examined by the propounder and no reason has been assigned for the same.
22. Per contra, when D.W.2 was in the witness box, in cross examination, a suggestion was posed to him that since it was fabricated one, Balakrishnan refused to give evidence before Court, which was denied by him.
23. Considering the same, I am of the view that the trial Court is correct in holding that the evidence of D.W.2 is not trustworthy and unreliable.
24. At this juncture, this Court has to consider the evidence of D.W.1 who is one of the propounders and beneficiary under Ex.B-13 Will. Even though in his chief examination, he has stated in (paragraph 6 of the proof affidavit) that his father has executed the Will in his favour and also in favour of his brother; in his cross-examination, he fairly conceded that all the suit properties are his father's self-acquired properties. He further stated in cross-examination that at the time of execution of the Will Ex.B-13, the mother was alive.
25. While perusing the Will, no provision has been made to the wife of the deceased-testator (father of the parties). There is no reason assigned therein. In his evidence, D.W.1 stated that his senior paternal uncle and junior paternal uncle are not the attestors to Ex.B-13 Will. In his cross-examination, D.W.1 further stated that 25 days prior to his father's death, he came to know about the execution of the Will and he fairly conceded that his father died of Cancer and initially he was admitted in Sengaliappan Hospital, where he was diagnosed that he was suffering from Cancer and it was in advanced stage and therefore, he was admitted in Kuppusamy Naidu Hospital, where he advised and Kuppusamy Naidu Hospital declined to give treatment and then, he was taken to house for two days and thereafter admitted in ESI Hospital. A suggestion was posed to D.W.1 that when he was in house for ten days, he was suffering from pain and the deceased-testator was unconscious, which was denied by him. D.W.1 fairly conceded that ESI Hospital, there was no treatment for Cancer. He further submitted that there is a special Ward for Cancer in both Senkaliappan Hospital and in Kuppusamy Naidu Hospital. 20 days after, he was discharged from Senkaliappan Hospital and Kuppusamy Naidu Hospital, and thereafter admitted in ESI Hospital and suggestion was posed to him that his father was taking to Registrar's Office as if to take X-ray for him, which was denied by him. D.W.1 fairly conceded that he does not know as to who wrote the Will. He also fairly conceded that the description of the properties has not been given and no properties have been given to his mother. He further submitted that the recitals in the Will have been given by Muthukali Konar, and D.W.1 did not state that he was neither an attestor nor, identification witness. D.W.1 also stated that Muthukali Konar has cordial relationship with D.W.1 and Muthukali Konar has not been examined before Court. A suggestion was posed to him that himself and his brother has concocted the Will, and this suggestion was denied by him. A suggestion was also posed to him that the signatures were obtained in the Will from Palanisamy Konar in Auto, which was also denied by him, but he stated that at that time, he was in Trichirapalli.
26. Admittedly, the second appellant/D2 Bhoopathy was not examined before Court. As already stated, D.W.2 is the co-worker in Mill with the second appellant/D2. So, the evidence of D.W.1 and second appellant/D2 has not proved the mental capacity and physical condition of the deceased testator Palanisamy Konar and no one has deposed that the deceased-testator was in sound and disposing state of mind. So, the basic ingredient, namely the testator's mental capacity, has not been proved.
27. Now, it is appropriate for this Court to consider the decisions relied on by both sides.
28. Learned counsel appearing for the appellants/D1 and D2 relied upon the decision of the Supreme Court reported in AIR 1995 SC 1684 (Rabindra Nath Mukherjee Vs. Panchanan Banerjee), wherein, it was held by the Supreme Court as follows:
"6. Insofar as the third circumstance (i.e. the witnesses to the documents were interested in the appellants) is concerned, we may first observe that witnesses in such documents verify whether the same had been executed voluntarily by the concerned person knowing its contents. In case where a Will is registered and the Sub-Registrar certifies that the same had been read over to the executor who, on doing so, admitted the contents, the fact that the witnesses to the document are interested lose significance. The documents at hand were registered and it is on record that the Sub-registrar had explained the contents to the old lady. So, we do not find the third circumstance as suspicious on the facts of the present case."
29. Relying on the above decision of the Supreme Court, learned counsel appearing for the appellants/D1 and D2 submitted that debarring the natural heirs should not raise any suspicion. The natural heirs would be debarred in every case of the Will, of course, it may be that in some cases, they are fully debarred and in others, only partially.
30. Learned counsel appearing for the appellants/D1 and D2 also relied on a decision of the Supreme Court reported in AIR 1995 SC 2086 (V.S.Mane Vs. R.V.Ganeshkar), wherein, the Apex Court held as follows:
"14. ..... ... when a court is dealing with a testamentary case where there is a large and consistent body of testimony evidencing the signing and attestation of the Will, but where it is suggested that there are circumstances which raise a suspicion and make it impossible that the Will could have been executed, the correct line of approach is to see that the improbability in order to prevail against such evidence must be clear and cogent and must approach very nearly to, if it does not altogether constitute, an impossibility. There is no such improbability about the Will in the present case.
15. There is also a large body of case law about what are suspicious circumstances surrounding the execution of a Will which require the propounder to explain them to the satisfaction of the Court before the Will can be accepted as genuine. A Will has to be proved like any other document except for the fact that it has to be proved after the death of the testator. Hence, the person executing the document is not there to give testimony. The propounder, in the absence of any suspicious circumstances surrounding the execution of the Will, is required to prove the testamentary capacity and the signature of the testator. Some of the suspicious circumstances of which the court has taken note are: (1) The propounder taking a prominent part in the execution of a Will which confers substantial benefits on him; (2) Shaky signature; (3) A feeble mind which is likely to be influenced; (4) Unfair and unjust disposal of property. (See in this connection: H.Venkatachala Iyengar Vs. B.N.Thimmajamma, 1959 Supp (1) SCR 426 : (AIR 1959 SC 443); Indu Bala Bose Vs. Manindra Chandra Bose, (1982) 1 SCR 1188 at p.1192 : (AIR 1982 SC 133 at Pp.134-35) and Guro (Smt.) Vs. Atma Singh (1992) 2 SCC 507 at p.511). Suffice it to say that no such circumstances are present here."
31. Relying on the said decision of the Apex Court reported in AIR 1995 SC 2086 (cited supra), learned Senior Counsel appearing for the respondents 1 and 2/plaintiffs submitted that the plaintiffs did not raise any plea and have not challenged the genuineness of the signatures on the Will, and that the Will was forged document; even though it was not challenged, it is the duty of the propounder to prove the Will and dispel the suspicious circumstances; there are circumstances which raise a suspicion and make it impossible that the Will could have been executed; the correct line of approach is to see that the improbability in order to prevail against such evidence, must be clear and cogent and must approach very nearly to, if it does not altogether constitute an impossibility and there is no such improbability about the Will in the present case.
32. The above contention does not hold good, because, in the present case, the propounder has been taking prominent part in execution of the Will, i.e. the second appellant/D2, which confers substantial benefits on him and unfair and unjust disposal of the properties, and the entire properties have been given only to the sons and no reason has been assigned to debar the testator's wife and his daughters and there is feeble mind which is likely to be influenced.
33. Admittedly, at the time of the alleged execution of the Will, the deceased-testator was suffering from Cancer and that too, it was the advanced stage of Cancer and the private nursing homes have lost hope and discharged the deceased-testator from the Hospital/nursing homes and these are the suspicious circumstances in the case on hand, and so, the above citation reported in AIR 1995 SC 2086 (cited supra) is not applicable to the facts of the present case.
34. Learned counsel for the appellants/D1 and D2 further relied on the decision of the Supreme Court reported in 2007 (7) SCC 91 (Adivekka Vs. Hanamavva Kom Venkatesh), in which, the Apex Court laid down the law relating to proving the Will, as follows:
"Where there are suspicious circumstances, the onus would be on the propounder to remove suspicion by leading appropriate evidence. Section 63 of the Succession Act lays down the mode and manner in which an unprivileged will is to be executed. Section 68 of the Evidence Act 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. The proof of 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. 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."
35. Learned Senior Counsel for the respondents 1 and 2/plaintiffs took the Court through the decision reported in 2002 (1) CTC 650 (Kausalya.D. Vs. S.Sankaran), wherein, it was held by a Division Bench of this Court, as follows:
"19. From the above principles, it is clear that unequal and unjust disposal will be a suspicious circumstance with regard to the genuineness of the Will and the burden is on the propounder to offer an explanation and get over such suspicious circumstances, failing which the Will can be held to be a non-genuine one."
36. Relying on the said decision reported in 2002 (1) CTC 650 (cited supra), learned Senior Counsel appearing for the respondents 1 and 2/plaintiffs submitted that the Court, can in the case of unnatural Will, consider both antecedent and subsequent circumstances and evidence has to be scrutinised with greater degree of care and on evidence, suspicious circumstances found to be existing and propounder could not get over the same.
37. Learned Senior Counsel appearing for the respondents 1 and 2/plaintiffs further relied on the decision of the Supreme Court reported in 2007 (7) SCC 225 (Apoline D'Souza Vs. John D'Souza), wherein, it was observed by the Apex Court as follows:
"Section 68 of the Evidence Act, 1872 provides for the mode and manner in which execution of the Will is to be proved. Proof of attestation of the Will is a mandatory requirement. The mode and manner of proof of due execution of a Will indisputably will depend upon the facts and circumstances of each case. It is for the propounder of the Will to remove the suspicious circumstances, which has not been done in this case."
38. Relying on the above citation of the Supreme Court reported in 2007 (7) SCC 225 (cited supra), it is contended by the learned Senior Counsel for the respondents 1 and 2/plaintiffs that the mode and manner of proof of due execution of a Will, will depend upon the facts and circumstances of each case and the proof of attestation of a Will is a mandatory requirement and the suspicious circumstances will have to be removed by the propounder of the Will.
39. Learned Senior Counsel appearing for the respondents 1 and 2/plaintiffs also relied on the decision of the Supreme Court reported in 2008 (1) LW 241 (SC) (Benga Behera and another Vs. Braja Kishore Nanda and others), wherein, the Supreme Court held as follows:
"28. We may notice that this Court in Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, [(2003) 2 SCC 91] laid down the law on interpretation and application of Section 71 of the Act in the following terms:
"11. Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68 of the Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling the attesting witnesses, though alive. This section provides that if an attesting witness denies or does not recollect the execution of the will, its execution may be proved by other evidence. Aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the execution of the same, for reasons best known, have not been summoned before the court. It is clear from the language of Section 71 that if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. However, in a case where an attesting witness examined fails to prove the due execution of will as required under clause (c) of Section 63 of the Succession Act, it cannot be said that the will is proved as per Section 68 of the Evidence Act. It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of will can be proved by other evidence dispensing with the evidence of other attesting witnesses though available to be examined to prove the execution of the will." (emphasis supplied)."
"46. Existence of suspicious circumstances itself may be held to be sufficient to arrive at a conclusion that execution of the Will has not duly been proved."
40. Relying on the said decision reported in 2008 (1) LW 241 (SC) (cited supra), it is submitted by learned Senior Counsel for the respondents 1 and 2/plaintiffs that "animus attestandi" is a necessary ingredient for proving the attestation and in this case, D.W.2's evidence is not trustworthy and so, it has to be held that the attestation has not been proved.
41. Learned Senior Counsel appearing for the respondents1 and 2/plaintiffs further relied on the decision of the Supreme Court reported in 2008 (1) LW 255 (SC) (Savithri and others Vs. Karthyayani Amma and others), wherein, it was held by the Apex Court as follows:
"Assuming that at the time of execution of the Will, the testator was unwell, the test, however, is as to whether he possessed mental capacity to understand the contents of the Will and whether the same was free and/or voluntary."
"If the propounder proves that the Will was signed by the testator, and he at the relevant time was in sound disposing state of mind and understood the nature and effect of disposition, the onus stands discharged."
42. Learned Senior Counsel appearing for the respondents 1 and 2/plaintiffs further relied on the decision of the Apex Court reported in 2009 (1) SCC 354 (K.Laxmanan Vs. Thekkayil Padmini), wherein, the Supreme Court held as follows:
"From Section 68 of the Evidence Act, it is crystal clear that the onus of proving the Will is on the propounder. The propounder had 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.
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."
43. Relying on the said decisions of the Apex Court, learned Senior Counsel appearing for the respondents 1 and 2/plaintiffs submitted that the testator in this case is an old person and was suffering from serious physical and mental ailment, and in such circumstances, the propounder of the Will had failed to dispel the suspicious circumstances by adducing satisfactory evidence and so, the appellants/defendants 1 and 2 are not entitled to succeed.
44. Learned Senior Counsel appearing for the respondents 1 and 2/plaintiffs lastly relied on the decision of the Madurai Bench of this Court reported in 2009 (1) MLJ 441 (Sivasamy Vs. Poomalai), wherein, it was held as follows:
"The onus of proving valid execution and attestation of a Will and dispelling suspicious circumstances is on the propounder."
"A mere registration of a Will is not sufficient to dispel suspicious circumstances."
"17. Genuineness of the Will:
Now we come to the Will. In the Will, the testator has not only disinherited his daughter but also his wife. Therefore, we must be convinced that it is genuine. The suspicious features in the Will are the fact that the testator did not execute the Will in his place of residence. Of course, there is no presumption that merely because a Will is executed far away from the residence, it must be false. When a Will is executed and the normal course of inheritance is deviated from, the testator may naturally want to maintain some secrecy and, therefore, execute the Will away from his residence. But we have to look at the cumulative effect of the various suspicion features referred to above."
45. While considering the above decisions of the Supreme Court, along with the facts of the present case, it is seen that Ex.B-13 Will was alleged to have been executed on 15.4.1982; admittedly, it is a registered Will, in which, Somasundaram DW2 and Balakrishnan were the witnesses and the said Balakrishnan was not examined; the typist one Ponnusamy was also not examined. The document was written on 15.4.1982, presented on 19.4.1982 at 11 am 12 noon and registered on 21.4.1982 in Document No.55 of 1982. It is pertinent to note that in Ex.B-13 Will, the deceased testator Palanisamy Konar has not mentioned his wife's name and he has not given the reason as to why he had to disinherit his wife and he has also not made a provision in the Will for his wife and further he has not mentioned the name of his wife and four daughters; he has also not assigned any reason as to why the daughters are debarred and disinherited. The description of the properties have not been made and so, these created suspicious circumstances in the mind of the Court regarding the Will and those suspicious circumstances have not been dispelled by the propounder of the Will, namely the appellants/D1 and D2. In the Will itself, the deceased testator Palanisamy Konar has stated that he was suffering from physical ailment for a long time. So, I am of the considered view that mere registration of the Will, will not clothe any sanctity to the Will and the appellants have not proved that the testator executed Ex.B-13 Will when he was in a sound and disposing state of mind and on his own volition. The trial Court considered all the aspects in proper circumspection and came to the correct conclusion.
46. The oral evidence of D.Ws.1 and 2, does not dispel the suspicious circumstances for due execution and further attestation of the Will has also not been proved in accordance with law. Hence, I am of the view that Ex.B-13 Will not a true and genuine document, and created with mala-fide intention to grab the properties of the legal heirs, namely the wife and daughters of the deceased testator Palanisamy Konar. The trial Court is correct in holding that Ex.B-13 Will is not true and genuine document.
47. Furthermore, merely because the fourth defendant has filed written statement and accepted Ex.B-13 Will, it will not clothe any validity to the execution of Ex.B-13 Will. Merely because the respondents 1 and 2/plaintiffs are not questioning Ex.B-11 sale deed and award Ex.B-12, it will not confer any title to the appellants 1 and 2/defendants 1 and 2 in respect of the other properties. Ex.B-13 Will has not been proved in accordance with law and hence, not a true and genuine document. Point (i) is answered in the above terms.
48. Points (ii) and (iii) : In view of the conclusion arrived at in Point (i), that the Will is not proved in accordance with law, and therefore, it is not a true and genuine documents, and hence, this Court is on the presumption that the deceased testator Palanisamy Konar died intestate and his legal heirs, namely the appellants/D1 and D2 and respondents 1 and 2/plaintiffs and defendants 3 and 4, inherited and succeeded to the properties, since the properties are separate properties of the deceased-testator Palanisamy Konar and all are entitled to equal share in the properties.
49. The appellants/defendants 1 and 2, are entitled to each 1/6 share in the suit properties. The trial Court's preliminary decree is sustainable and the judgment and decree of the trial Court do not warrant any interference by this Court and the same are hereby confirmed. The appellants/D1 and D2 are not entitled to any relief in this First Appeal, which is liable to be dismissed. Points (ii) and (iii) are answered accordingly.
50. For the foregoing reasonings:
(a) The First Appeal is dismissed.
(b) The judgment and decree of the trial Court are confirmed.
(c) Considering the relationship between the parties, both parties are directed to bear their own costs.
cs To
1. Additional District Judge (Fast Track Court No.III), Coimbatore.
2. Record Keeper, V.R. Section, High Court, Madras