Madras High Court
Rukmani vs Rengammal
Author: G.Chandrasekharan
Bench: G.Chandrasekharan
S.A.No.132 of 2021 and
CMP.Nos.2693 & 21433 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on Judgment Pronounced on
27.01.2022 09.03.2022
CORAM:
THE HONOURABLE MR. JUSTICE G.CHANDRASEKHARAN
S.A.No.132 of 2021
and
CMP.Nos.2693 & 21433 of 2021
Rukmani ... Appellant
..vs..
1. Rengammal
2. Velusamy
3. Praveena
4. Arunkumar
5. Vijaya ... Respondents
This Second Appeal is filed under Section 100 of Civil Procedure
Code against the judgment and decree dated 19.02.2020 made in
A.S.No.59 of 2017 on the file of the learned Principal Subordinate Judge,
Erode, confirming the judgment and decree dated 22.09.2017 made in
O.S.No.170 of 2014 on the file of the learned District Munsif -cum-
Judicial Magistrate, Kodumudi.
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S.A.No.132 of 2021 and
CMP.Nos.2693 & 21433 of 2021
For Appellant : Mr.V.Raghavachari
for
Mr.R.Ramesh
For Respondents 1 to 4 : Mr.G.Vijayakumar
For Respondent-5 : No appearance
JUDGMENT
This Second Appeal is directed against the concurrent judgments and decrees of the courts below.
2. Appellant filed the suit for declaration that the Will dated 01.07.2014 executed by Kuppusamy Naidu is not true, valid and unenforceable; (2) to divide the suit properties into 16 equal shares and allot 5 such shares to her; (3) for injunction restraining the second defendant from selling or alienating the suit properties; (4) and for costs.
3. The case of the appellant is that the first respondent is her mother, second respondent is her brother, fifth respondent is her sister, third and fourth respondents are the children of second respondent. She 2/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 filed the suit against the respondents claiming that the suit items 1 to 6 are ancestral properties, items 7 and 8 were purchased by their father Kuppusamy Naidu from the income derived from items 1 to 6 of the suit properties. Thereafter, their father died on 02.07.2014 leaving her, mother, brother and sisters as his legal heirs. Suit properties were enjoyed by appellant, mother and respondents 2 to 5 as joint family properties. Both the kidneys of Kuppysamy Naidu became dysfunctional and he was bedridden. He died on 02.07.2014. Before his death a Will was said to have been executed by Kuppusamy Naidu in favour of the second respondent on 01.07.2014 at Velakoundapatti Sub-Registrar Office. This Will was not executed by Kuppusamy Naidu when he was in sound disposing state of mind. It was created by the second respondent to deny share in the suit properties to appellant and fifth respondent. Assuming that the Will is true, Kuppusamy Naidu can execute a Will only in respect of his 1/4 share in the suit properties. He has no right to execute the will in respect of all the suit properties. When the appellant demanded the respondents to divide the suit properties and 3/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 allot her share, the second respondent refused. Therefore, this suit.
4. It is seen from the written statement filed by the second respondent that he denied that item-2 of the suit properties is ancestral property. His claim shows that item-3 of the suit properties was purchased by Kuppusamy Naidu in 1967 and he bequeathed this property to him through a will dated 01.07.2014. Appellant was married 47 years back and fifth respondent was married 37 years back. They were provided with all the seer. Kuppusamy Naidu's ancestral properties are manavari rain fed lands. They were not suitable for agriculture. No income was generated from ancestral properties. Therefore, Kuppusamy Naidu shifted to Nagammanaickanpalayam in 1965. He took lease of lands and engaged in agriculture, apart from involving in business of selling coconut and plantain. He was also running bullock carts for his income. From the income derived from his independent aforesaid sources, he purchased items 7 and 8 of the suit properties. Neither the appellant nor the respondents have contributed to the purchase of these 4/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 properties. Appellant and fifth respondent never enjoyed the suit properties jointly. When appellant, her husband and son tried to intervene Kuppusamy Naidu's possession and enjoyment in item No.7 of the suit properties, he filed the suit in O.S.No.127 of 2013 for permanent injunction and obtained a decree in his favour. Kuppusamy Naidu had executed a Will on 01.07.2014 in respect of the suit properties in favour of the second respondent, while he was in sound disposing state of mind and without any one's influence and of his free will/mind. Next day, he died and the last rites were performed by the second respondent. As per the Will, second respondent is enjoying the suit properties. No one, including the appellant has right to oppose his right and enjoyment in the suit properties and claim share. After the death of Kuppusamy Naidu, appellant and fifth respondent were provided 5 sovereigns of gold jewelleries and Rs.25,000/- each and they informed, in the presence of elders, that they have no right in the suit properties. This case has no merits and is liable to be dismissed.
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5. On the basis of the above pleadings, the trial court framed the following issues:-
“1. Whether the suit property has not properly valued ?
2. Whether the suit is barred by non-joinder of necessary party ?
3. Whether suit property items 7 and 8 are self acquired properties of deceased Kuppusamy Naidu is true ?
4. Whether plaintiff is entitled to get declaration that Kuppusamy Naidu executed Will dated 01.07.2014 in favour of second defendant is not genuine and not enforceable one ?
5. Whether plaintiff is entitled to get preliminary decree in respect of 5/16 of suit property?
6. Whether plaintiff is entitled to get permanent injunction against second defendant not to alienate the suit property till the final decree is passed ?
7. To what relief, plaintiff is entitled to ?
6. During the course of trial, PW.1 and PW.2 were examined 6/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 and Exs.A1 to A2 were marked on the side of appellant/plaintiff. DW.1 to DW.5 were examined and Exs.B1 to B7 were marked on the side of respondents/defendants.
7. On considering the oral and documentary evidence, trial Court found that items 1,2,4,5 and 6 of the suit properties are the ancestral properties of the parties. Items 3,7 and 8 of the suit properties are self acquired properties of Kuppusamy Naidu. It also found that Kuppusamy Naidu is entitled to execute the Will in respect of his self acquired properties. The Will executed by him was proved and therefore, the appellant is entitled for partition only in respect of item Nos.1,2,4,5 and 6 of the suit properties and not entitled to the relief claimed in respect of item Nos.3,7 and 8 of the suit properties.
8. Challenging this judgment, appellant filed A.S.No.59 of 2017 and there was also a cross appeal in A.S.No.59 of 2017 by the respondents 2 to 4. Appellant claimed that rejection of her prayer in 7/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 respect of items 3, 7 and 8 is not correct and respondents 2 to 4 claimed that granting relief in respect of items 1,2,4,5 and 6 is not correct. First appellate Court, on considering the evidence and judgment of the trial Court and submissions of the learned counsel appearing for the parties, found no reason to differ with the view taken by the trial Court and confirmed the judgment of the trial Court and dismissed both the appeal and cross appeal. Therefore, the appellant filed this second appeal. It appears, there is no second appeal filed by the respondents 2 to 4 and they accepted the judgment of the courts below.
9. At the time of admission of the Second Appeal, the following substantial question of law was framed on 22.02.2021:
1. Whether the Courts below examined the disputed Will which was obtained by the respondent by means of fraud and coercion or otherwise ?
Additional substantial questions of law were framed on 10.01.2022:
(i) Whether the Will is bad due to the exclusion of one branch in toto ?8/48
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(ii) When there is no sufficient evidence to show that Kuppusamy Naidu had separate source of income, whether the findings recorded by the Courts below that Kuppusamy Naidu had separate source of income, from which he purchased item Nos.3, 7 and 8 of properties can be sustained ?
10. Learned counsel for the appellant submitted that there is no pleading that item No.3 of the suit properties is the self acquired property of Kuppusamy Naidu. However, without pleadings and evidence, the courts below found that item No.3 is also the self acquired property of Kuppusamy Naidu. When the properties stand in the name of kartha of the family and there are ancestral properties in the family, the person who claims that the suit properties are self acquired properties of kartha has to prove the claim. Item No.8 of the suit properties is not included in the Will. However, both the courts have refused the relief for item No.8 of the suit properties.
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11. It is further submitted that in a suit filed in O.S.No.127 of 2013, it was specifically pleaded by Kuppusamy Naidu that after his death, his daughters can take one property each. It shows that his intention was to provide for his daughters also. However, in Ex.B7-Will alleged to have been executed by Kuppusamy Naidu, one day prior to his death, his daughters were totally excluded, without any justifiable reason or cause. This very fact shows that the Will is a created Will.
12. Will is surrounded by suspicious circumstances and they are:
(i) Will was said to have been executed on 01.07.2014 and Kuppusamy Naidu died on 02.07.2014.
(ii) He was a kidney patient and bedridden and he was not in a sound disposing state of mind.
(iii) In O.S.No.127 of 2013, age of Kuppusamy Naidu was shown as 82 years, but in Ex.B7-Will, his age was shown as 78 years.
(iv) Will was registered in Sub-Registrar Office at Namakkal, 10/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 instead of Kodumudi.
(v) On the same day of the execution of the Will, Will was said to have been received by Kuppusamy, which is not practicably possible.
(vi) There are discrepancies in the Will, as to who gave information for the preparation of the Will, with regard to preparation of draft etc.
(vii) The attestor and scribe are the close associates of the second respondent and Will has been created with their help.
(viii) The fact that the ancestral properties are also included in the Will shows that the Will is not a genuine Will.
(ix) Second Respondent actively participated in the execution of the Will.
However, both the courts have not considered the suspicious circumstances surrounding the execution of the Will and the failure on the part of the second respondent to clear the suspicious circumstances. When there is no evidence to show that Kuppusamy Naidu had independent source of income other than the income from his ancestral 11/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 properties, the only conclusion that can be drawn is that item Nos.3, 7 and 8 of the suit properties were purchased from the income derived from the ancestral joint family properties. Will is not also proved in accordance with law. The denial of the relief claimed in respect of item Nos.3, 7 and 8 of the suit properties is not proper and therefore, he prays for setting aside the judgment of the courts below and for decreeing the suit in toto.
13. Learned counsel for the appellant relied on the following judgments with regard to proof of Will:-
(i) (1962) 3 SCR 195 : AIR 1962 SC 567 (Rani Purnima Devi & Another Versus Kumar Khagendra Narayan Dev & Another) “5. Before we consider the facts of this case it is well to set out the principles which govern the proving of a will. This was considered by this Court in H. Venkatachala Iyengar v. B. N. Thimmajamma, (1959) Supp (1 ) SCR 426: (AIR 1959 SC 443).It was observed in that case that the made of proving a will did not ordinarily differ from that of proving any 12/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act. The onus of proving the will was on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and signature of the testator as required by law was sufficient to discharge the onus. Where, however, there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the will could be accepted as genuine. If the caveator alleged undue influence, fraud or coercion, the onus would be on him to prove the same. Even where there were no such pleas but the circumstances gave rise to doubts, it was for the propounder to satisfy the conscience of the Court. Further, what are suspicious circumstances was also considered in this case. The alleged signature of the testator might be very shaky and doubtful and evidence in support of the propounder's case that the signature in question was the signature of the testator might not remove the doubt created by the appearance of the signature.13/48
https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 The condition of the testator's mind might appear to be very feeble and debilitated and evidence adduced might not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will might appear to be unnatural, improbable or unfair in the light of relevant circumstances; or the will might otherwise indicate that the said dispositions might not be the result of the testator's free will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completely removed before the document was accepted as the last will of the testator. Further, a propounder himself might take a prominent part in the execution of the will which conferred on him substantial benefits. If this was so it was generally treated as a suspicious circumstance attending the execution of the will and the propounder was required to remove the doubts by clear and satisfactory evidence. But even where there were suspicious circumstances and the propounder succeeded in removing them, the Court would grant probate, though the will might be unnatural and might cut off wholly or in part near 14/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 relations.”
(ii) (1977) 1 Supreme Court Cases 369 Jaswant Kaur Versus Amrit Kaur and Others;
“8. The defendant who is the principal legatee and for all practical purposes the sole legatee under the will, is also the propounder of the will. It is he who set up the will in answer to the plaintiff's claim in the suit for a one-half share in her husband's estate. Leaving aside the rules as to the burden of proof which are peculiar to the proof of testamentary instruments, the normal rule which governs any legal proceeding is that the burden of proving a fact in issue lies on him who asserts it, not on him who denies it. In other words, the burden lies on the party which would fail in the suit if no evidence were led on the fact alleged by him. Accordingly, the defendant ought to have led satisfactory evidence to prove the due execution of the will by his grandfather Sardar Gobinder Singh.”
(iii) (1995) 4 Supreme Court Cases 459 (Rabindra Nath Mukherjee and another ..vs.. Panchanan Banerjee (dead) by LRs and 15/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 others “4. As to the first circumstance, we would observe that this should not raise any suspicion, because the whole idea behind execution of will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of will; of course, it may be that in some cases they are fully debarred and in others only partially. As in the present case, the two executors are sons of a half-blood brother of Saroj Bala, whereas the objectors dcendants of a full blood sister, the disinheritance of latter could not have been taken as a suspicious circumstance, when some of her defendants are even beneficiaries under the will.
5. ...
8. If a total view is taken of the aforesaid circumstances, which has to be the approach, we are of the opinion that the Courts below over played some circumstances which they regarded as suspicious and somehow missed some circumstances which bolstered the case of the propounders.”
(iv) (1996) 11 SCC 626 (Kartar Kaur Versus Milkho & Others) 16/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 “14. This Court in Bhagwan Kaur v. Kartar Kaur, 1994(5) SCC 135. has observed that `decision on due execution of will, strictly speaking, is not primarily arriving at a finding of fact, as it has an admixture of law due to the specific requirements of Section 63 of the Indian Succession Act, 1925 towards due execution.'
15. In Bindeshri Parsad and another v. Mst. Baisakha Bibi and others, AIR 1920 PC 70, it has been held in a suit by heirs of a deceased person to declare that the alleged will of the deceased whereby they are deprived of the succession to his estate, is a forgery the burden of establishing without reasonable doubt that the will propounded is of the deceased is upon those propounding the will.'
16. In Smt. Jaswant Kaur v. Smt. Amrit Kaur and others, AIR 1977 S.C. 74. this Court held that `in case where the execution of a will is shrouded in suspicion, its proof ceases to be simple lis between the plaintiff and the defendant. What, generally, is an adversary preceding become sin such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence 17/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. it is impossible to reach satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will.'
17. In H. Venkatachala lyengar v. B.N. thimmajamma and others, 1959 Supp. 1 SCR 426. this Court observed as follows:-
"The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act. Proof in either case cannot be mathematically precise and certain and so the test should be one of satisfaction of a prudent mind in such matters. The onus must be on the propounder and in absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus.18/48
https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 Where, however, there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the will can be accepted as genuine. If the caveat or alleges undue influence, fraud or coercion the onus will be on him to prove the same. Where are no such pleas but the circumstances given rise to such doubts, it is for the propounder to satisfy the conscience of the Court.
What are suspicious circumstances must be judged in the facts and circumstances of each particular case. If the propounder takes a prominent part in the execution of the will which confers substantial benefits on him, that itself is a suspicious circumstance attending the execution of the will and in appreciating the evidence in such case, the court should proceed with an open but nevertheless vigilant and cautious mind.”
(v) (2009) 1 SCC 354 (K. Laxmanan ..vs.. Thekkayil Padmini & Others) “19. When there are suspicious 19/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 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. The aforesaid view is taken by us in consonance with the decision of this Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee [AIR 1964 SC 529] and Pushpavathi v. Chandraraja Kadamba [(1973) 3 SCC 291].
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20. .....
23. Moreover, no attempt was made by the appellant to prove and establish the mental and physical condition of the testator at the time of execution. Rather the respondent has proved that Chathu, the father of the appellant, was at the time of the alleged execution of the Deed of Will was 82 years of age and he was suffering from serious physical ailments and was not mentally in a good state of mind.” and
(vi) (2010) 5 SCC 274 (S.R. Srinivasa & Others Versus S.Padmavathamma) “57. Since there were suspicious circumstances, it was necessary for the defendants to explain the same. The registration of the Will by itself was not sufficient to remove the suspicion. The first appellate court also notices that even in cases where the execution of the Will is admitted, at least one attesting witness of the Will has to be examined to receive the Will in evidence. DW2, who has been examined is the scribe of the Will, has given no plausible reasons as 21/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 to why the Will was presented twice before the Sub Registrar for registration. Nor is it stated by this witness as to why the Will was not registered on the first occasion.”
14. Learned counsel for the respondents submitted that the ancestral properties are rain fed manavari lands and there was no income generated from these lands. Therefore, Kuppusamy Naidu shifted his residence to Nagammanaickanpalayam and took lease of lands, did agriculture and other businesses and purchased item Nos.3, 7 and 8 of the suit properties. Even when he was enjoying his properties, appellant, her husband and her son tried to interfere with his possession and therefore, he filed a suit in O.S.No.127 of 2013. Respondents 2 and 5 are not parties to that suit. Mother/first respondent and fifth respondent had not challenged the Will. Only the appellant is challenging the Will. The Will was satisfactorily proved by examining the attestor and scribe. Kuppusamy Naidu was residing with the second respondent during his last days. Second respondent admitted that item No.2 of the suit 22/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 properties was purchased by father. The scribe and attestor have given satisfactory evidence to prove the execution of the Will. Nothing worthwhile is elicited from their evidence to entertain doubt regarding the genuineness of the Will. It is not the practice to preserve the draft Will once the Will is executed. Now a days, documents registered are delivered to the parties immediately. Distance between the residence and the Sub-Registrar Office is not an issue and a suspicious circumstance. Merely because Kuppusamy Naidu died next day after the execution of the Will and that daughters were not provided are not suspicious circumstances to doubt the Will when the execution of the Will is satisfactorily proved. That had been done in this case. Therefore, learned counsel for the respondents prayed for confirming the judgment of the courts below and for dismissal of this Second Appeal. Learned counsel for the respondent relied on the following judgments with regard to proof of Will:-
(i) 1995(2) SCR 585 (PPK Gopalan Nambiar vs PPK Balakrishnan Nambiar And Ors) 23/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 “... It is trite that it is the duty of the propounder of the will to prove the will and to remove all the suspected features. But there must be real, germane and valid suspicious features and not fantasy of the doubting mind.”
(ii) (2005) 8 SCC 65 (Pentakota Satyanarayana & Ors vs Pentakota Seetharatnam & Ors) “A perusal of Ex.B9 (in original) would show that the signatures of the Registering Officer and of the identifying witnesses affixed to the registration endorsement were, in our opinion, sufficient attestation within the meaning of the Act. The endorsement by the sub-registrar that the executant has acknowledged before him execution did also amount to attestation. In the original document the executants signature was taken by the sub-registrar.
The signature and thumb impression of the identifying witnesses were also taken in the document. After all this, the sub-registrar signed the deed. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced 24/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 before a court, the testator who has already departed the world cannot say whether it is his Will or not and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and the testament of departed testator. In the instant case, the propounders were called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document on his own freewill. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated above. ......” “It is settled by a catena of decisions that any and every circumstance is not a suspicious circumstance. Even in a case where active participation and execution of the Will by the propounders/beneficiaries was there, it has been held that that by itself is not sufficient to create any doubt either about the testamentary capacity or the genuineness of the Will. It has been held that the mere 25/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 presence of the beneficiary at the time of execution would not prove that the beneficiary had taken prominent part in the execution of the Will. This is the view taken by this Court in Sridevi & Ors vs. Jayaraja Shetty & Ors, (2005) 2 SCC 784. In the said case, it has been held that the onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and the proof of signature of the testator as required by law not be sufficient to discharge the onus. In case, the person attesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same and that as to what suspicious circumstances which have to be judged in the facts and circumstances of each particular case.” and
(iii) Kiritbhai Melabhai Tadvi ..vs.. Narmadashankar Premjibhai Dave (Gujarat High Court S.A.No.267 of 2008) (reported in Indian Kanoon – http:/indiankanoon.org/doc/36086151) “Section 63 of the Indian Succession Act itself 26/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 makes a provision that the testator shall sign or shall affix his mark to the Will. Therefore, even if the testator was in habit of putting signature, law permitted him to affix mark to the Will. However, usually, when a person who is in habit of putting his signature wherever required, is found to have put his thumb mark, it creates a suspicion in the mind of anybody and therefore, in given case, it becomes necessary to know the circumstances for which thumb impression is put by such person. It is undisputed fact that the testator on the date of execution of the Will was 75 years of age and his wife was 70 years of age. It has come in evidence that the testator had also undergone cataract operation. Therefore, in old age and with lack of vision in eyes, the testator if decided to put his thumb mark, it would not raise any suspicion against genuineness of the Will. Putting of thumb impression by testator was witnessed by three witnesses and the Notary, as could be found from the evidence of witness Umedbhai Vallabhbhai examined at Exh.14 by the applicants. Therefore, simply because the testator had put his thumb mark is no ground to 27/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 doubt execution of the Will by the testator. ”
15. Considered the rival submissions and perused the records.
16. From the case of the parties, appellant claims that item Nos.1 to 6 of the suit properties are ancestral properties and item Nos.7 and 8 were purchased from the income derived from item Nos.1 to 6 of the suit properties. Second respondent in para-3 of the written statement, admitted that item Nos.1 to 6 of the suit properties are ancestral properties. However, it is disputed that item Nos.7 and 8 of the suit properties were purchased from the income derived from item Nos. 1 to 6 of the suit properties. In para-7 of the written statement, it is claimed that item No.2 is not the ancestral property and item No.3 was purchased by Kuppusamy Naidu in 1967 from one Kittappa Naidu and Perumal Naidu. Copy of the said sale deed is produced as Ex.B5. Perusal of Ex.B5 shows that this property is in Kodhur Agraharam Village of Paramathi sub-district. Survey number of this property is 79 in patta No.59. 28/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 However, the property concerned in this survey number is not the suit property. Survey number of item No.3 is given as 267/3 in description of property. No evidence is brought to the notice of the Court as to whether S.No.79 is changed as S.No.267/3 by the revenue authorities. Therefore, it has to be decided that Ex.B5 property is not related to suit properties in this case and therefore, the claim of the second respondent that item No.3 of the suit properties was purchased by his father, cannot be accepted. Both the courts below have missed this aspect.
17. As far as item Nos.7 and 8 of the suit properties are concerned, second respondent claimed that there was no income from the ancestral properties. Kuppusamy Naidu took lease hold lands in Nagammanaickanpalayam and engaged in agriculture, apart from doing businesses like selling of coconut, plantain, running of bullock carts and purchased item Nos.7 and 8 of the suit properties from this income. When it is candidly admitted that item Nos.1 to 6 of the suit properties are ancestral properties in para-3 of the written statement and in his 29/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 evidence that there is an extent of 10 acres of land available at Kodhur village ancestrally in the family, it is for him to prove that item Nos. 7 and 8 of the suit properties were purchased from the independent source of income. Except his pleadings with regard to taking lease hold lands in Nagammanaickanpalayam and doing other businesses by Kuppusamy Naidu, there is no acceptable evidence produced to show the income acquired from these activities.
18. Learned counsel for the respondents relied on the admission of PW.1 that she admitted that her father was doing agriculture in lease hold lands and that lands at Uththiyapalayam are rain fed lands. We are concerned about the lands in Kodhur village and Sennasamuthiram Village. The lands in Uththiyapalayam are not the properties in this case. Though her evidence shows that her father was doing agriculture in lease hold lands, she claims that she was also helping his father in doing the agriculture. It is true that second respondent produced Ex.B4 to show that item No.7 of the suit properties was purchased by Kuppusamy 30/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 Naidu. This Courts finds that there is no acceptable evidence produced to show that Kuppusamy Naidu had done the business activities of selling coconut, plantain, running bullock carts etc., and earned separate income. The settled proposition of law is that when there are ancestral properties in the family and properties are acquired in the name of kartha, it has to be deemed that the properties were acquired from the income derived from ancestral properties.
19. With regard to burden of proof as to the presumption regarding whether a property is joint Hindu Family property or not, it is pertinent to refer to the following judgments. It is observed in,
(i) (2007) 1 SCC 521 (Appasaheb Peerappa Chamdgade .vs.. Devendra Peerappa chamdgade and others), as follows:-
17. Therefore, on survey of the aforesaid decisions what emerges is that there is no presumption of a joint Hindu family but on the evidence if it is established that the property was joint Hindu family property and the other properties 31/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 were acquired out of that nucleus, if the initial burden is discharged by the person who claims joint Hindu family, then the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property to cogent and necessary evidence.
(ii) 2012 (1) CTC 128 : Mr.Malla Naicker @ Singari vs Miss.Jeeva (Minor), as follows:-
19. As a matter of fact, this principles of law was also reiterated in the judgment reported in A.I.R. (2007) S.C. 1808 ( cited supra) which is extracted hereunder:-
The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and 32/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 not out of joint family nucleus that was available''
20. In the judgment reported in ( 2005) 3 Law Weekly 627 ( cited supra) the Hon'ble Division Bench, after discussing the two judgments reported in (2003) 10 S.C.C. ( cited supra) 310 and A.I.R. 1961 S.C. 1268, in [ Mallesappa Bandeppa Desai and another Vs. Desai Mallappa @ Mallesappa and another] has held as follows:-
From the decisions of the Supreme Court in A.I.R. 1961 S.C. 1268 (cited supra)A.I.R. 1977 Madras 171 in [Mr.Sankaranarayanan and another Vs. The Official Receiver, Tirunelveli and others] and also from the observations made by the Allahabad High Court in A.I.R. 1950 Allahabad 54 in [ Bhagwant Kishore and another Vs. Bishambhar Nath and others] and in Maynes Treatise on Hindu Law and usage, and all other decisions noticed above, it is apparent that no exception is carved out in the matter relating to acquisition in the name of Kartha, where it is proved that Kartha had no independent income and he is in possession of some nucleus and not necessarily sufficient nucleus of the joint family property. In such a case, even where sufficient nucleus is not proved but existence of some nucleus is proved and it is further proved that Karta or 33/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 Manager, in whose name property had been purchased, had no independent income, the burden is shifted to Karta to prove that the property has been acquired without the aid of the joint family and with the own separate income of the Karta or the Manager. We hasten to add that such principle is inapplicable, where it is shown that Kartha has some separate and independent income, in which event, the normal principle that it is for the person claiming a particular acquisition that there was sufficient surplus from the joint family property from out of which the property in question could have been acquired."
21. In the judgment reported in (2003) 10 S.C.C. 310, (cited supra) the said principle was also reiterated, which is extracted hereunder:-
"The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available'' 34/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021
(iii) CDJ 2012 MHC 5091 (K. Ramalingam Versus K. Raghuraman & Others), as follows:-
26. The legal principle is that when sufficient nucleus is established from which property might have been acquired, presumption is to be raised that the other properties were acquired out of that nucleus. In (2003) 10 SCC 310 D.S.Lakshmaiah and another Vs. L.Balasubramanyam and another, the Supreme court has held as under:
"18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so assertion proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available."35/48
https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021
(iv) (2013) 10 SCC 211 (V.K.Surendra Versus V.K.Thimmaiah & Others), as follows:-
“18. We have noticed that though the appellant examined himself as DW.4, he failed to produce either documentary or oral evidence to show the lands at items Nos.2,3 and 5, situated at Village Kaikere are the self-acquired properties of Kunnaiah. In absence of any division in the family of Kunnaiah and his sons, we hold that the family of Kunnaiah continued to be the joint family. If a co-parcener of a joint family claims that properties are his self- acquired properties, the burden is on him to prove that the same are the self-acquired properties. In that background the High Court has rightly held that Kunnaiah had no right to change the character of the joint family properties by transferring the same either under a Will or a gift to any party without the consent of the other co-parceners.”
20. Reading of these judgments show that there is no presumption of joint family, but if it is established the property was joint 36/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 Hindu family property and other properties were acquired out of the yield, if the initial burden is discharged by the person, who claims joint in the family, then the burden shifts to the party alleging self acquisition to establish affirmatively whether the property was acquired without the yield of joint family property by cogent and convincing evidence.
21. Ex.B6 relates to sale deed dated 04.06.1974 and the survey number of the property concerned in this sale deed is 22 in Sennasamuthiram village. Property concerned in this survey number is not a suit property. As already stated, there is no evidence to show that Kuppusamy Naidu had independent source of income. When he has ancestral properties, the conclusion that can be drawn is that the property purchased in the name of kartha can only be considered as property purchased from the income derived from ancestral properties. It is admitted by second respondent that the properties had not been partitioned in the family when Kuppusamy Naidu was alive. As per the Hindu Succession Amendment Act, 2005, appellant is also entitled to a 37/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 share in the suit properties as a co-parcener. Therefore, she is entitled to claim share in all the suit properties.
22. From the survey of judgments produced with regard to proof of Will, here are some well settled principles, essential for proving a Will in question.
(i) The whole idea behind execution of will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of will. It may be that in some cases they are fully debarred and in others only partially.
(ii) The testator must be in sound disposing mind during the execution of Will that he must understand the nature and effect of the dispositions and it must be out of his own free will.
(iii) The Will must be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment 38/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator.
(iv) The registration of the Will by itself was not sufficient to remove the suspicion, at least one attesting witness of the Will has to be examined to receive the Will in evidence.
(v) In cases, where the execution of a will is shrouded in suspicion, the party which sets up the will must offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will.
(vi) 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.
(vii) It is trite that it is the duty of the propounder of the will to prove the will and to remove all the suspected features. In other words, the burden of proving a fact in issue lies on him who asserts it, not on him who denies it.
(viii) In absence of suspicious circumstances surrounding the 39/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 execution of the will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus.
(ix) Proof of Will cannot be mathematically precise and certain and so the test should be one of satisfaction of a prudent mind in such matters.
23. The bone of contention between the parties is Ex.B7-Will said to have been executed by Kuppusamy Naidu in favour of second respondent. It is true that Kuppusamy Naidu died next day after the execution of the Will and he excluded his daughters from getting his properties. It is admitted fact that he was not keeping good health before the execution of the Will. Will is executed only with a view to express the desire of a testator as to how his property should devolve on others, after his life time. Merely because Kuppusamy Naidu died next day after the execution of the Will, we cannot reject the Will outright. The recitals in Ex.B7-Will show that he admitted that he was suffering from kidney ailment and he expected death at any time. He wanted to avoid litigation between his son and his daughters. He predicted that they would fight 40/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 for his properties in Court, after his death, claiming right in his properties and only to avoid such an event, he executed this Will in favour of his son. It has to be borne in mind that Kuppusamy Naidu filed a suit in O.S.No.127 of 2013 against the appellant, her son and husband for the relief of permanent injunction and got a decree in his favour. This litigation might have been the reason for him to execute the impugned Will.
24. Section 30 of the Hindu Succession Act, 1956 permits disposition of property by way of Will by a male Hindu in Mitakshara coparcenery property. It is observed in Radhamma and others ..vs.. H.N.Muddukrishna and others reported in (2019) 3 SCC 611, as follows:-
“7. Section 30 of the Act, the extract of which has been referred to above, permits the disposition by way of Will of a male Hindu in a Mitakshara coparcenary property. The significant fact which may be noticed is that while the legislature was 41/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 aware of the strict rule against alienation by way of gift, it only relaxed the rule in favour of disposition by way of a Will of a male Hindu in a Mitakshara coparcenary property. Therefore, the law insofar as it applies to joint family property governed by the Mitakshara school, prior to the amendment of 2005, when a male Hindu dies after the commencement of the Hindu Succession Act, 1956 leaving at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary. An exception is contained in the explanation to Section 30 of the Act making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property can be disposed of by him by Will or any other testamentary disposition and in the given facts and circumstances, the testator Patel Hanume Gowda was indeed qualified to execute a Will bequeathing his undivided share in the joint family properties by a Will Exhibit D2 dated 16.6.1962.” 42/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021
25. Though several suspicious circumstances stated above have been raised by the learned counsel appearing for the appellant to attack the Will, the evidence of DW.2 and DW.3 shows that they had given fairly consistent and satisfactory evidence with regard to the execution of Ex.B7-Will. It is claimed that Kuppusamy Naidu was living with his son during his final days. It is clearly stated in the recitals in the Will that due to shivering in his hands, he had not signed the Will, but affixed thumb impression. There is no evidence to show that second respondent actively participated in the execution of Will. DW.3 has clearly stated that Sub-Registrar had examined Kuppusamy Naidu before the execution of Will and he gave clear answer to his questions. DW.2 has given evidence about preparing the Will on the instructions of Kuppusamy Naidu. It is no doubt, from the own statement of Kuppusamy Naidu, clear that he was suffering from kidney ailment. There is no evidence in support of the claim of the appellant that Kuppusamy Naidu was bedridden and he cannot move around. When DW.2 and DW.3 had given 43/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 satisfactory evidence with regard to the preparation and execution of Will, the registration of the Will at a far off Sub-Registrar Office than a near one, in the considered view of this Court, will not be enough to discard the Will. Now-a-days, documents are handed over on the date of registration of the documents, after all the formalities are completed. We cannot read much into getting the Will on the same day of registration. Non-preservation of draft Will is also not a ground for raising suspicion over the Will. Thus, from the overall analysis of the Will, this Court has come to the conclusion that Ex.B7-Will was executed by Kuppusamy Naidu when he was in sound disposing state of mind and it is proved.
26. The next question is whether Kuppusamy Naidu can execute the Will in respect of entire suit properties. It is already found that item Nos.1 to 6 of the suit properties are ancestral properties and item Nos. 7 and 8 of the suit properties are the properties purchased from the nucleus of ancestral properties. Therefore, Kuppusamy Naidu cannot execute the Will in respect of entire extent of suit properties. But he can execute 44/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 only his undivided 1/4 share in the suit properties. Appellant, along with Kuppusamy Naidu, second respondent and fifth respondent are each entitled to 1/4 share in the suit properties. Kuppusamy Naidu executed the Will in respect of item Nos.1 to 7 of the suit properties, his 1/4 share will go to second respondent. Thus, this Court finds that appellant is entitled to 1/4 share in item Nos.1 to 7 of the suit properties. As far as item No.8 of the suit properties is concerned, it is not included in Ex.B7 Will. Therefore, appellant is entitled to 1/3 share in item No.8 of the suit properties.
27. In view of the reasons stated above, this Court finds that when there is no material produced to show that Kuppusamy Naidu had independent source of income to purchase the property, the finding of the courts below that he had independent source of income and from that income, he purchased items 3, 7 and 8 cannot be sustained for substantial question of law No.3. It is found that the Will is satisfactorily proved and therefore, the claim of appellant that the Will was obtained by 45/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 respondent by means of forgery, coercion and otherwise and that the Will is bad due to exclusion of one branch in toto cannot be sustained.
28. In the result, the judgment and decree of the first appellate Court is set aside and it is held that the appellant is entitled to 1/4 share in item Nos.1 to 7 of the suit properties and 1/3 share in item No.8 of the suit properties. Accordingly, the Second Appeal is allowed. No costs. Consequently, connected Miscellaneous Petitions are closed.
mra 09.03.2022
Internet: Yes
Index : Yes
Speaking/Non speaking order
To
1. The Principal Subordinate Judge, Erode.
2. The District Munsif -cum- Judicial Magistrate, Kodumudi. 46/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 G.CHANDRASEKHARAN, J., mra Pre-delivery Judgment in S.A.No.132 of 2021 47/48 https://www.mhc.tn.gov.in/judis S.A.No.132 of 2021 and CMP.Nos.2693 & 21433 of 2021 and CMP.Nos.2693 & 21433 of 2021 09.03.2022 48/48 https://www.mhc.tn.gov.in/judis