Andhra HC (Pre-Telangana)
C.J. Ayodhya Ram Singh And Ors. vs B. Venkatamuni And Anr on 26 October, 2004
Equivalent citations: 2004(6)ALD607, 2004(6)ALT693
JUDGMENT Devinder Gupta, C.J.
1. This Letters Patent Appeal is by the plaintiffs. Before the District Judge, Chittoor and before the learned single Judge, they have remained unsuccessful in getting an order of Probate or Letters of Administration with will dated 29.3.1968 annexed to enable Plaintiff No.1 to realise the assets of deceased Smt. B. Akkayamma, the testator.
2. Facts in brief are that O.P. No. 102 of 1970 was filed on the file of District Judge, Chittoor for grant of a Probate by the plaintiffs. Respondent-defendant No.1 was not impleaded as a party initially. Subsequently, by way of amendment, prayer was amended to include therein, an alternative prayer to grant Letters of Administration. Respondent No.1 had by that time also lodged a caveat opposing grant of probate. The plaintiffs and Defendant No.1 had led their respective evidence. After hearing arguments, on 2.7.1975, District Judge disposed of the O.P. holding that the will propounded by Plaintiff No.1 was true, valid and binding, but, directed that the O.P. be converted into a regular suit, in view of provisions of Section 295 of Indian Succession Act since it had become a contested case with further direction to the plaintiffs to disclose the caveator-respondent as a defendant in the suit. This order was challenged in appeal (A.A.O. No. 60 of 1975) before the High Court, which was partly allowed to the extent of setting aside the findings recorded by the District Judge as regards the validity of the will since the District Judge had already observed that it was unnecessary for him to give a finding on the validity of the will and nonetheless, he had upheld the validity of the will without converting O.P. No. 102 of 1970 into a suit.
3. O.P. No. 102 of 1970 was thus converted into suit (O.S. No. 30 of 1975) on the file of District Judge, Chittoor. As the parties had already led their respective evidence in O.P. No. 102 of 1970, a joint memo was filed by the parties that the evidence already adduced in O.P. No. 102 of 1970 be treated as evidence in the suit (O.S. No. 30 of 1970) and that the suit be decided on the basis of the said evidence. District Judge heard both sides and on 28.1.1981 dismissed the suit recording a finding that the will Ex.A.1 dated 23.3.1968 propounded by plaintiff No.1 was not duly executed by late Smt. B. Akkayamma and the same was not proved. Confirming the said finding, appeal preferred by the plaintiffs in A.S. No. 223 of 1982 was dismissed by the learned single Judge by his Judgment dated 19.6.1995, which is under challenge in the present L.P.A.
4. We heard learned counsel for the parties, who made elaborate submissions and took us through the entire record. We have given due consideration to the findings recorded by the District Judge as well as by the learned single Judge and are of the view that it is a fit case where the findings recorded by the District Judge as well as by the learned single Judge deserve to be set aside and the suit deserves to be decreed.
5. Facts need not be mentioned in detail, but, it will be necessary to refer to certain admitted facts and certain findings recorded in the judgments, which are not under challenge. Plaintiffs-appellants 1 and 2 are the sons, plaintiff-appellant No.3 is the daughter and plaintiff-appellant No.4 was wife of Sri C.D. Jai Singh. Plaintiff No.4 expired during pendency of the proceedings. Respondent No.1 is the caveator who opposed grant of Probate or Letters of Administration and Respondent No.2 is a tenant in the property.
6. Smt. Akkayamma possessed considerable property in District Chittoor at A.P. and at Arkonam in the State of Tamilnadu. She was engaged in the business of money lending and was unmarried. In District Chittoor, Sri Jai Singh and Akkayamma were living as man and wife without any marital status. Plaintiffs 1 to 3 are the children of Jai Singh through his wife Shyma Bai (Plaintiff No.4), who, as noticed above, has since expired. Later on Jai Singh shifted to Arkonam and Smt. Akkayamma also followed and shifted to the said place. Both of them were living at Arkonam and at that place also Akkayamma was having her property. They continued to live at Arkonam as man and wife. Akkayamma had also been visiting Chittoor and Tirupati occasionally. It also appears that the plaintiffs did not like Sri Jai Singh carrying on with Smt. Akkayamma, but, later on they appeared to have reconciled with the situation and almost accepted Smt. Akkayamma as a member of their family. These findings have been recorded by District Judge in his judgment and also approved by the learned single Judge, for which reference was also made to two photographs Ex.A.2 and Ex.A.5. It was held that Smt. Akkayamma was more or less second wife of Sri C.D. Jai Singh and her position and status was accepted by all members of the family of Jai Singh. Plaintiff No.3 daughter of Jai Singh was quite young when Sri Jai Singh and Akkayamma were living at Arkonam and was even educated by Smt. Akkayamma during 1951 to 1955 and she appears to have felt fancy towards plaintiff No.3. District Judge recorded a finding that the SSLC certificate Ex.A.13 would show that Plaintiff No.3 was brought up and educated by Smt. Akkayamma and Jai Singh at Arkonam where they lived together as man and wife and evidence would also indicate that to most extent Akkayamma was having love and affection towards the children of Jai Singh as she had no issues of her own. Akkayamma and Jai Singh continued to live together for about thirty years.
7. Will dated 23rd March, 1968 was propounded as the last will executed by Smt. Akkayamma bequeathing her properties as detailed in the suit in favour of plaintiff No.1 which include three houses at Tirupati, land at Timmasamudram and certain other moveable assets in favour of plaintiff No.1. It is an unregistered will and has been brought on record as Ex.A.1. C.D. Jai Singh passed away on 17th July, 1968. Akkayamma expired on 29th September, 1968. Three days before her death, Smt. Akkayamma by two settlement deeds Exs.B-24 and B.25 also settled other properties on plaintiffs 1 to 3, which are not the subject matter of the present proceedings. The only question before us is as regards the legality and validity of will Ex.A.1. Learned single Judge in his judgment, which is under challenge, also approved the findings of the District Judge by saying that the District Judge has recorded admitted facts, which are not controverted in appeal by both sides. He narrated those facts as under:
Jai Singh is the father of plaintiffs 1 to 3 and the husband of plaintiff No.4. He died on 17.7.1968 at Madras. He was living with Akkayamma for over 30 years prior to his death at Arkonam and they lived together as man and wife. Akkayamma had lot of properties including the suit properties and was also doing money-lending business at Arkonam. She was visiting Chittoor now and then, if not frequently. She had not lost contact of the plaintiffs. It appears that Jai Singh lost contact of plaintiffs 1 and 2 and plaintiff No.3 and he did not visit them at Chittoor. Plaintiff No.3 stayed with Akkayamma at Arkonam and she was also educated there. She is married and lived with her husband at Madras. The learned District Judge has shown various circumstances to come to the conclusion that late Akkayamma had love and affection for plaintiffs 1 to 3 and in particular plaintiff No.3. She educated plaintiff No.3 at Arkonam. She left some of the properties to plaintiffs 1 to 3 under the settlement deeds Exs.B.24 and B.25, which was three days prior to her death. At any rate, there is no material to show that she had no dispute with the plaintiffs for any reason. This Court may also add that she had a major share of love and affection of Jai Singh and his company till he died as against loss of such emotional values for plaintiff No.4.
8. After recording the aforementioned facts, learned single Judge held that he was in full agreement with the appreciation of evidence and the findings recorded by the learned District Judge in that regard. Learned single Judge also recorded a finding that certain reasons have been assigned by District Judge upon due appreciation of evidence that there was no reason for Akkayamma not to execute any will in favour of Plaintiff No.1 in normal circumstances and her conduct in giving away most of the properties to plaintiffs 1 to 3 under Exs.B.24 and B.25 is rightly depended upon as a strong circumstance to draw such inference and record a finding. The learned single Judge thus concluded that there was no reason to disagree with the findings of the District Judge in that regard that in normal circumstances Akkayamma was perfectly justified in executing Ex.A.1 in favour of Plaintiff No.1 and in settling most of the other properties to plaintiffs 1 to 3 by registered settlement deeds Ex.B.24 and B.25. Learned single Judge also held that Akkayamma was not an illiterate lady.
9. In the aforementioned background, what is required to be seen by us is the manner of appreciation of evidence and recording of facts as regards the legality and validity of the will by the District Judge as well as by the learned single Judge. Learned single Judge held that the District Judge had correctly recorded the evidence in regard to the execution and attestation of will Ex.A.1 by Akkayamma and held that the District Judge had almost correctly applied the principles laid down in various Judgments of Supreme Court as regards due execution of will and, while doing so, he had entertained so many suspicious circumstances and, rightly so, which learned single Judge narrated in his judgment as follows:
1. Akkayamma lived with Jai Singh, the father of the plaintiffs 1 to 3 and husband of plaintiff No.4 at Arkonam in Tamilnadu while the plaintiffs lived at Chittoor in Andhra Pradesh till Jai Singh and she died.
2. There are indications to show that the plaintiffs were against Akkayamma to some extent when the second plaintiff filed a suit for partition on the ground that Jai Singh squandered the property after he developed contact with Akkayamma.
3. There was no special reason for love and affection between them except that Akkayamma had no children. There was no reason for Akkayamma in particular to choose first plaintiff to bequeath the schedule properties ignoring all other similarly placed persons like plaintiffs 1 and 2.
4. Piecemeal disposal of her properties at different stages and different types of documents Exs.A.1, B.24 and B.25, namely, settlement deed looks unnatural.
5. Akkayamma leaving registered documents Exs.B.24 and B.25 just three days prior to her death as against unregistered will six months prior to her death looks suspicious.
6. The will and settlement deeds almost read similar with same intentions consequently leading to a serious doubt.
7. The signature of Akkayamma on Ex.A.1 as Akkayamma Chevralu for the first time as against her usual signature on many documents including the settlement deeds Ex.B.24 and B.25 coming out just three days prior to her death with signature as Akkayamma speaks of something unnatural in the conduct of her.
8. The omission to mention the execution of Ex.A.1 will or the execution of such property in Exs.B.24 and B.25 is a strong circumstance leaving a serious suspicion on the conduct of Akkayamma.
9. The contents of Ex.A.1, which are conditional and contingent, appear to be unnatural.
10. After noticing the so called suspicious circumstances noticed by the District Judge, learned single Judge in his turn also added three more circumstances, which are quoted below, which, according to him, also appear to be suspicious circumstances:
1. Akkayamma came all the way from Arkonam to Chittoor and went to the house of a stranger P.W.2 while thinking of leaving a will only in favour of first plaintiff without any background or reason and the said conduct lends no explanation on the part of the plaintiffs.
2. It appears that Akkayamma who is said to be a miserly lady - when she did not spare any property while her paramour- husband like Jai Singh was on death-bed, thought of leaving a will in favour of plaintiff No.1 for no reason.
3. Akkayamma appears to have included some of the properties found in Ex.A.1 in Exs.B.24 and B.25 also as detailed by the learned District Judge.
11. As can be seen from the findings recorded by the District Judge as well as by the learned Single Judge that though they recorded most of the findings in favour of the Plaintiffs as regards love and affection which Akkayamma had towards them and that in normal circumstances it was but natural for Akkayamma to bequeath her property in favour of Plaintiff No.1, but, simultaneously, they discarded the will Ex.A.1 on the ground that there were numerous suspicious circumstances, as quoted above.
12. On going through the circumstances taken note of in the two judgments under challenge, we can simply observe that the District Judge as well as the learned single Judge, for some reason or the other, must have formed an idea that though Smt. Akkayamma was living almost as a second wife of C.D. Jai Singh and had love and affection towards his children and had every reason to bequeath the properties mentioned in the will in favour of plaintiff No.1 because of that love and affection and later on also gave most of the properties to plaintiffs 1 to 3 by two registered settlement deeds, yet, the will was not a genuine document. Having formed such an idea both the District Judge and learned single Judge appears to have looked at the evidence of each of the witnesses with a suspicious eye. On no other hypothesis, it is possible to explain the criticism, which led to their coming to the conclusion that the will Ex.A.1 was not a validly executed document.
13. Before examining the evidence on record, it will be but necessary for us to take note of the principles laid down by Supreme Court in number of its judgments and the tests to be applied as to the proof of a will.
14. In H. VENKATACHALA IYENGAR V. B.N. THIMMAJAMMA and others1 it was held that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. One important feature which however distinguishes wills from other documents is that unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced 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 testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be 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 of his own free will. Ordinarily, when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts. There may, however, be cases in which the execution of the will may be surrounded by suspicions circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's cause that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature the condition of the testator's mind may appear to be very feeble and debilitated and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances or, the will may otherwise indicate that the said dispositions may 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 is accepted, as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document, as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveator but, even without such pleas, circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. Apart from the suspicious circumstances, in some cases the wills propounded disclose another infirmity. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that by itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with such wills that the test of the satisfaction of judicial conscience is applied. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
15. The principles were reaffirmed in RANI PURNIMA DEB AND ANOTHER v. KUMAR KHAGENDRA NARAYAN DEB AND ANOTHER SHASHI KUMAR BANERJEE AND OTHERS v. SUBODH KUMAR BANERJEE, SURENDRA PAL AND OTHERS v. DR. (MRS.) SARASWATI ARORA AND ANOTHER4.
16. In SMT. INDU BALA BOSE AND OTHERS V. MANINDRA CHANDRA BOSE AND ANOTHER5 while reaffirming the principles as regards mode of proof of a will laid down in H. Venkatachala Iyengar v. B. N. Thimmajamma (supra), it was held that any and every circumstance is not a 'suspicious' circumstance. A circumstance would be 'suspicious' when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.
17. In KALYAN SINGH V. SMT. CHHOTI AND OTHERS, RAM PIARI V. BHAGWANT AND OTHERS, GURO (SMT.) V. ATMA SINGH and GURDIAL KAUR AND OTHERS V. KARTAR KAUR AND OTHERS9 also the principles aforementioned were reiterated and applied.
18. In nutshall, the settled position in law is that if there is suspicious circumstance about the execution of the will, it is the duty of the person seeking declaration about the validity of the will to dispel such suspicious circumstances. The broad statement by witness that he had witnessed the testator admitting execution of the will was not sufficient to dispel suspicions regarding due execution and attestation of the will and even registration of the will by itself is not sufficient to remove the suspicion. What is important is that the conscience of the Court must be satisfied that the will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925, but it should also be found that the said will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the will. Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the will to dispel suspicious circumstance. Where there are suspicious circumstances the onus will be on the propounder to explain them to the satisfaction of the Court before the will could be accepted as genuine and where the caveator alleges undue influence, fraud and coercion the onus is on him to prove the same. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will may be unnatural or unfair or improbable, when considered in the light of the relevant circumstances. If the caveator does not discharge the burden which rests upon him in establishing the circumstances which show that the will had been obtained by fraud or undue influence, a probate of the will must necessarily be granted, if it is established that the testator had full testamentary capacity and had in fact executed it validly with a free will and mind. The onus of establishing capacity is on the propounder. It is also clear that if the caveator impugned the will on the ground that it was obtained by the exercise of undue influence, excessive persuasion or moral coercion, it lay upon him to establish that case. If the various requirements of a valid will are established, then as observed by the Privy Council in Motibai Hormusjee's case10, "A man may act foolishly and even heartlessly if he acts with full comprehension of what he is doing the Court will not interfere with the exercise of his volition".
19. The aforementioned are the principles which Courts have to apply to the given facts and circumstances of the case and then come to the conclusion that whether the will has been duly proved like any other document with special requirements of attestation as prescribed by Section 63 of the Indian Succession Act. The test to be applied would be the usual test of the satisfaction of a prudent mind in such matters. In case the witnesses produced by the propounder of the will give clear and cogent testimony regarding due execution of the will, very strong circumstances are required to repel the fact of such testimony. It will not be sufficient for a person challenging the genuineness of the will merely to make a general observation on the ground that there may be some facts - the so called circumstances of suspicion and then to challenge the genuineness of the will. No doubt a person who takes upon himself the task of disputing genuineness of a will is not expected to prove a negative. It will be suffice if he rests his case on suspicion, but the suspicion must be such which is inherent in the transaction itself. Each and every circumstance cannot be termed as a suspicious circumstance. The circumstance should be such that it should throw a challenge effectively on the due execution of will, namely, suspicion inherent in the transaction itself.
20. Though the trial court as well as the learned single Judge correctly noticed the principles, which are required to be applied in such like cases, both of them faltered in correctly applying the principles to the facts and circumstances of the instant case and took notice of circumstances none of which can be said to be a suspicious circumstance attending to due execution of the will.
21. The fact of Akkayamma living with Jai Saingh, father of plaintiffs 1 to 3 at Arkonam in Tamilnadu till Jai Singh died while plaintiffs living at Chittoor in Andhra Pradesh is the first circumstance taken note of by the trial Court which was approved by the learned single Judge. According to the trial Court and the learned single Judge, this is a suspicious circumstance attending the due execution of will Ex.A.1. There is evidence that even in Chittoor Akkayamma was living with Jai Singh as his wife. After some time, Jai Singh shifted to Arkonam and Akkayamma also followed him. Smt. Akkayamma had been occasionally visiting Chittoor. In both the judgments impugned, it has been held that it stands proved that while Jai Singh and Akkaytamma were staying at Arkonam, plaintiff No.3 the daughter of Jai Singh through his first wife was educated at Arkonam and lived with them. Plaintiff No.3 was also married and thereafter she and her husband also lived with Akkayamma at Arkonam. In view of these findings and this evidence, it is impossible even to draw an inference that when Akkayamma was living with the father of plaintiffs 1 to 3 at Arkonam, she had no occasion to execute will Ex.A.1 in favour of the eldest son of Jai Singh. Rather this circumstance would support the case of the plaintiffs that Akkayamma had a valid and good reason to execute the will in favour of the eldest son of Jai Singh.
22. Similarly, the next circumstance has nothing to do with the due execution of will Ex.A.1 and cannot be termed as a suspicious circumstance. The evidence on record suggest that though Akkayamma was living with Jai Singh in District Chittoor when Plaintiff No.4 - the wife of Jai Singh and mother of plaintiffs 1 to 3 was alive, they did not like Jai Singh living with Akkayamma. When Jai Singh shifted to Arkonam, second plaintiff did file a suit for partition on the ground that Jai Singh was squandering the property. But that was not a litigation brought about by the plaintiffs against Akkayamma and there is nothing on record to suggest that the plaintiffs were in litigation with Akkayamma. The trial Court as well as the learned single Judge held as a matter of fact that there was special reason for love and affection between plaintiffs and Akkayamma since Akkayamma had no children of her own. In the light of the evidence on record and even as admitted by the respondents, Akkayamma had accepted Jai Singh as de-facto husband. She had no children of her own and took special interest in educating and bringing up of Plaintiff No.3 at Arkonam and arranging for her marriage. The relationship which continued for more than thirty years between Akkayamma and Jai Sigh itself is a strong circumstance to draw an inference that Akkayamma had concern towards the children of Jai Singh and for that reason not only six months prior to her death she executed will Ex.A.1 in favour of the eldest son of Jai Singh but also three days prior to her death, by two registered documents executed in state of Tamilnadu, settled her remaining property on plaintiffs 1 to 3.
23. As regards the third, fourth, fifth and eighth circumstances, the fact that by will Ex.A.1, the scheduled properties were bequeathed in favour of plaintiff No.1 alone and the other plaintiffs were deprived of such properties is also not a circumstance which the trial Court as well as the learned single Judge ought to have taken it as a suspicious circumstance inasmuch as the other children of Jai Singh are not questioning the legality and validity of the will on that ground. It is not a case where Respondent No.1 a distant relation of Smt. Akkayamma, who, otherwise in the absence of will Ex.A.1, would be getting the property. He has questioned the legality and validity of the will. He is not the person in whose favour Smt. Akkayamma would have executed the will or settled her property. When Akkayamma had spent almost her entire life with Jai Singh, settling her property in favour of the elder son of Jai Singh can never be termed as a suspicious circumstance attending due execution of the will. Even piecemeal disposal of property by documents Exs. B.24 and B.25 cannot be termed as unnatural. Part of the property, which Akkayamma wanted to remain with her during her lifetime, is the subject matter of will Ex.A.1 and only those properties, which she wanted to be transferred during her life time are subject matter of Exs.B.24 and B.25. The two settlement deeds are not the subject matter of the present litigation. Exs.B.24 and B.25 were executed only three days prior to her death. Mere non-mentioning in Exs.B.24 and B.25 of the fact that she had already executed will Ex.A.1 earlier with regard to a part of her other property, also, cannot be termed as a suspicious circumstance attending due execution of the will.
24. Another circumstance pointed out by the trial Court and affirmed by the learned single Judge is that the will and settlement deeds almost read similar with the same intentions incorporating similar words, consequently leading to a serious doubt. There is nothing unnatural in the words similarly used in documents Exs.B.24 and B.25 and Ex.A.1. In simple words she expressed her intention in Ex.A.1, which was scribed by a person not well versed in preparing legal documents and from whom legal terminology is not expected, but, her intention is clearly expressed that she wanted the schedule property in Ex.A.1 to be bequeathed in favour of plaintiff No.1.
25. The next suspicious circumstance that in Ex.A.1 Akkayamma put her signature as 'Akkayamma Chevralu' whereas in the money order receipts she had put her signature only as 'Akkayamma', in our view, also cannot be said to be a suspicious circumstance. It is not shown that the signatures in Ex.A.1 are not those of Akkayamma. No effort was made by respondent No.1 even to have the signatures on will Ex.A.1 got compared with the admitted signatures. These are admitted documents on record containing the signatures of Akkayama. In case Respondent No.1 had any doubt about the genuineness of signatures of Akkayamma on Ex.A.1, it was for him to have got the same compared from handwriting expert. It is not unusual that persons will put their signatures differently in different documents. Exs.B.24 and B.25 are signed by Akkayamma three days prior to her death showing her name 'Akkayamma' only without the addition of the word 'chevralu'. Six months prior thereto she had signed on Ex.A.1 adding word 'chevralu' after her name 'Akkayamma'. What prompted her to add the word 'chevralu' after her name, in the absence of doubt about the genuineness of signature, is insignificant. Unless it is shown that there is something unusual with her signatures or the signatures are not of her, signing as full name on Ex.A.1 cannot be termed as a suspicious circumstance. There is no ambiguity in the contents of Ex.A.1. Neither the contents Ex.A.1 are shown to be conditional nor concessional. The will is written in a very simple language making the intention of the executant clear that the property mentioned therein will vest on plaintiff No.1 only after her death.
26. The three additional circumstances taken note of by the learned single Judge are also not such which might be said to be creating any suspicion on due execution of will Ex.A.1. Akkayamma going all the way from Arkonam to Chittoor and going to the house of P.W.2 is not unusual. P.W.2 in his deposition stated that he knew very well Akkayamma who belonged to the same place and had property in Chittoor district. P.W.2 was born and bought up in Chittoor. He knew Jai Singh from childhood and also knew Akkayyamma and states that both Jai Singh and Akkayamma lived together for about forty years. He categorically stated in cross-examination that Akkayamma usually was visiting his house and it was for that reason that on 23.3.1968 when will was executed she came to his house. He performed pooja and thereafter gave her food. He also knew the scribe and the attestors of the will who were called to the house of P.W.2 by plaintiff No.1. The additional circumstance taken note of by the learned single Judge is that Akkayyamma was a miserly lady and when she did not spare any property while her paramour Jai Singh was on death-bed, the fact of leaving a will in favour of plaintiff No.1 is unusual. Whether a person is miser or not is not relevant. The fact remains that leaving a will is not an act, which can be said to be unusual with miserly person. Will cannot take effect during lifetime of the executant. It will take effect only after the death of executant. It would rather be an usual circumstance for miserly person alone to leave a will. Therefore, the act of Akkayamma executing a will cannot be said to be contrary to her normal behaviour since she wanted the property mentioned in the will to remain vested in her during her life time and obviously she knew that Jai Singh was not going to live in Chittoor and had in fact settled in State of Tamilnadu and as only the children of Jai Singh were staying in Chittoor she thought of executing a will bequeathing her property in favour of plaintiff No.1 who happens to be the eldest male member in the family of Jai Singh. This fact rather supports the plaintiffs version of due execution of the will and that she had a valid reason in doing so.
27. Another circumstance pointed out by the learned single Judge is that some of the properties mentioned in Ex.A.1 are included in settlement deeds Exs.B.24 and B.25, which were executed subsequent to Ex.A.1. This also cannot be a suspicious circumstance since the properties mentioned in Ex.A.1 were not parted with by Akkayamma during her life time. These properties would continue to be vested in her and would have ceased to be her properties only after her death. In case prior to her death she thought of settling some of the properties mentioned in Ex.A.1 on the other plaintiffs, obviously such of the properties ceased to be a part of her estate and on her death only for the remaining properties the will would remain operative. This circumstance has no relevance as regards the question of valid execution of will.
28. As noticed above, the appreciation of evidence on record by the trial Court as well as by the learned single Judge entirely is on wrong premise and it appears that they anyhow formed some idea that the will was not a genuine document. Having formed such an idea they ventured to look at the evidence from that angle only and took out circumstances of their own which were not even put to the witnesses namely the scribe and the attesting witnesses, who appeared in the witness box. These are not the circumstances even mentioned by respondent No.1 in his caveat. The manner of dealing with the evidence in the two judgments under challenge is erroneous and is contrary to the manner in which the evidence is to be appreciated and applied. The principles have been laid down in numerous pronouncements of the Apex Court as aforementioned above. The principles though rightly appreciated were not correctly applied.
29. We have gone through the statements of witnesses P.W.1 - Sri V. Thyagarajan, the scribe of the will Ex.A.1 P.W.2 - Sri C.P. Dhan Singh and P.W.3 - Sri D. Ramamurthy, the two attesting witnesses of will Ex.A.1 and P.W.4 - Sri C.J. Ayodhyaram Singh, the 1st Plaintiff. As per the evidence of the scribe, he knew Akkayamma that she was the mistress of Jai Singh. He was not a document writer but only a retired teacher. This witness knew that she owned properties in Chittoor and would be occasionally visiting Chittoor and used to pass through his house near the bus stand. The other witnesses also state that Akkayamma knew the scribe. Therefore, she had called the scribe through plaintiff No.1. According to the scribe, will was written in the house of P.W.2 in Chittoor at the behest of Akkayamma. After the will was scribed it was read over and explained by him to Akkayamma, who, after understanding and admitting the same, in his presence and in presence of the other two attesting witnesses, put her signature. He also identified her signature on Ex.A.1. Similarly, the two attesting witnesses also in unequivocal terms supported the version of P.W.1 that both of them knew Akkayamma and that after the will was scribed by P.W.1 at the behest of Akkayamma, it was read over and explained in their presence to Akkayamma, who, as a token of accepting the correctness of the contents of the will, put her signature in their presence and they also testified the due execution of the will by putting their respective signatures on Ex.A.1 in the presence of Akkaymma and in the presence of each other. These witnesses were not questioned on any of the circumstances, which, as mentioned above, were taken note of by the trial Court as well as by the learned single Judge. The evidence on record satisfies the requirement of Section 63 of the Indian Succession Act. The trial Court as well as the learned single Judge erred in discarding the will on circumstances none of which is a suspicious circumstance attending due execution of the will and for that reason the appeal deserves to be allowed.
30. Accordingly the appeal is allowed with costs throughout. The Judgment and Decree of the trial Court as also of the learned single Judge are set aside. The petition is allowed. Probate of will Ex.A1 as prayed for is granted in favour of plaintiff No.1 to enable the plaintiff No.1 to realise the assets of the deceased Akkayamma.