Madras High Court
Chinnammal (Died) And Anr. vs Kannagi And Ors. on 14 September, 1988
Equivalent citations: AIR1989MAD185, AIR 1989 MADRAS 185
JUDGMENT Srinivasan, J.
1. One Chidambara Udayar of Pottireddipatti, Nainakkal Taluk, Salem District, had three sons Rangasamy Udayar, Ganesan and Devaraju. By a deed dated 11-3-1959, a partition was effected among the father and sons. While the father was allotted the properties described in Schedule 'A' to the document, the sons were together allotted the properties described in Schedule B' to the document. Chidambara Udayar executed a registered settlement deed on 27-7-1962 in favour of his daughter-in-law Kannaki, wife of Rangasamy Udayar giving substantial properties out of those allotted to him in the partition, to be enjoyed by him during his lifetime without any alienation and after his lifetime to be enjoyed by her absolutely. The three brothers viz., Rangasamy, Ganesan and Devaraju divided their properties by a registered deed dated 20-10-1964. The properties, described in Schedule A to that document were allotted to Rangasamy, It was provided an the document that in one of the sites allotted to Rangasamy, the mother of the parties by name Chinnammal should be permitted to reside during her lifetime. Chidambara Udayar died on 9-7-1966. Rangasamy Udayar died on 15-10-1972. Chinnammal issued a notice in August 1974 to Kannanaki and others claiming a share in the properties of her deceased son Rangasamy. Kannaki sent a reply on 31-8-1974 claiming that Rangasamy had bequeathed all his properties to her under a will. Thereafter, Chinnammal filed the suit, out of which this appeal arises, on the file of the Sub Court, Salem in November, 1974 with a petition to file the same in forma pauperis.
2. The first defendant was Kannagi, the daughter-in-law. Defedants 2 and 3 were the partners of sago factory along with the first defendant. According to the plaintiff, the first defendant was only a benamidar for her husband. Defendants 4 and 5 were purchasers of some of the suit properties from the first defendant. Defendants 6 and 7 were the surviving sons of the plaintiff and the brothers of the deceased Rangasamy. While Schedule A to the plaint comprises the properties allotted to Rangasamy in the partition, Schedule B comprised of the sago factory. Schedule A also comprised of the properties given to the first defendant by Chidambara Udayar under the settlement deed dated 27-7-1962 referred to earlier. It was alleged by the plaintiff that the Settlement deed was not valid in law as it was obtained by undue influence and coercion when the settlor was insane. The plaintiff referred to the exchange of notices, in August 1974 and pleaded that Rangasamy Udayar died intestate. The relevant portion of the plaint is found in paragraph IX, which reads thus : --
"Rengasamy Udayar died intestate. He had not executed any will as alleged in the reply notice dated 31-8-74. Rengasamy Udayar had no intention to execute any testament much less the alleged will in favour of his wife. If there is any will alleged to have been executed it must be forged one. To the knowledge of the petitioner/plaintiff he did not execute any will."
The plaint proceeded to state that the sales effected by the first defendant had quoted fictitious debts and that the sale deeds were make-believe ones created to deceive and deprive the rightful claims of the plaintiff. Ultimately, the plaintiff prayed for a division of the suit properties with allotment of half share in items 1, 2, 3 and 5, 3/8th share in item 4 and 1/4th share in item 6 of A Schedule properties and 2/6th share in B Schedule properties. The plaintiff also prayed for award of mesne profits at the rate of Rs. 5000/- from 15-10-1972 till the date of suit and for subsequent mesne profits at the same rate till delivery of possession.
3. The first defendant filed a written statement contesting the claim made by the plaintiff and denied the averments and allegations made in the plaint. She contended that she was not a benamidar for her husband in the sago factory and that she was a partner in her own right and on her own behalf as she had invested her own money in the business. She stated that the allegations made against Chidambara's sanity at the time of the settlement deed in 1962, were false and that the settlement deed was valid and fully acted upon. As regards the will of her husband, the plea in the written statement was in the following terms.
"...The 1st defendant's husband had executed a will on 5-11-1970 whereunder he had bequeathed all his properties, moveable and immoveable, his share in the partnership business and all other properties that he may acquire in future in favour of the 1st defendant. So, on his death, the 1st defendant became entitled to all the properties of her husband. It is false to say that Rangaswami Udayar died intestate. It is also false to say that he never incurred any debts. As stated already, he has left a will dated 5-11-1970 and he has left debts also.
8. The allegations in paras 8 to 10 of the plaint are not true and are denied. It is true that the plaintiff issued a notice, which was suitably replied by the 1st defendant. It is false to say "that Rengaswami Udayar did not execute any will. It is also not true to say that he had no intention to execute any will in favour of his wife and that the will alleged by the 1st defendant is only a forgery......".
In another portion of paragraph 8 of the written statement, it is stated that the plaintiff had no right to the properties as she could not claim any title to the properties of Rangaswamy Udayar in view of the will dated 5-11-1970'. Again a reference is made in paragraph 10 of the written statement to the will of Rangasamy Udayar and it is asserted that the properties owned by him came to be owned by the first defendant by virtue of the will.
4. The fourth defendant filed a written statement supporting the first defendant. Defendants 6 and 7 remained absent and were set exparte. At the stage of the trial of the suit, the plaintiffs counsel made an endorsement on the plaint that the plaintiff did not press the contentions covered by issues 1 and 2. Those issues related to the partnership agreement and the settlement deed of Chidambara Udayar. As a result of the said endorsement, the scope of the suit got narrowed considerably and the pivotal issue pertained to the truth and validity of the will dated 5-11-1970, put forward by the first defendant as that of her husband Rangaswamy Udayar. That was the subject matter of issue No. 3 and issues 4 to 7 depended on the answer to issue No. 3. The trial Court held that the will dated 5-11-1970 was true and valid and it was executed by Rangasamy Udayar in a sound disposing state of mind. Consequently, he found the other issues against the plaintiff and dismissed the suit.
5. The aggrieved plaintiff presented the appeal in this Court on December 31, 1977. She had applied for leave to file the appeal in forma pauperis in C.M.P. No. 11918 of 1980. That application was ordered on 16-3-1981. Before the appeal was numbered and taken on file, the plaintiff died on 23-8-1981. Her son, Ganesan, who was the 6th defendant in the suit and ranked as the 6th respondent in the appeal filed by her, filed C.M.P. No. 11233 of 1981 for transposing him as the legal representative of the appellant in the appeal. In the affidavit filed in support of the application he claimed that she had left an unregistered will dated 17-7-1981, whereby she had bequeathed her share in the suit propeties to him. Though the will referred to in the affidavit was not produced, the petition was ordered by the Court on 21-10-1981 without notice to any other party. Thus, the appeal is continued by the sixth defendant in the suit standing in the shoes of the plaintiff.
6. When the appeal was taken up for hearing, learned counsel for the first respondent/first defendant raised a preliminary objection that the present appellant viz. the 6th defendant is not entitled to continue the appeal as he has not produced or proved the will alleged to have been executed by the deceased plaintiff. Learned counsel submitted that the order transposing the 6th respondent as the appellant was not binding on him as it was made without notice. The objection is overruled as the sixth defendant, being a son of the plaintiff, will be one of her legal representatives in the event of intestacy and as such he is entitled to continue the appeal on behalf of the estate. The question whether the deceased plaintiff had left a will bequeathing her share of the properties to the sixth defendant, does not arise for consideration at this stage. That question will become relevant only if the plaintiff is held entitled in this appeal to a share in any of the suit properties as prayed for by her.
7. On the merits of the appeal, it is contended by learned counsel for the appellant in the Court below has not adverted to several suspicious circumstances existing in this case, which have not been explained by the first defendant. Learned Counsel has catalogued the suspicious circumstances as under:
(1) The will dated 5-11-1970 was not produced into Court along with written statement; but it was produced only on 1-3-
1977 some time prior to the commencement of the trial.
(2) A reference has been made to the will in Exs.B.11 and B-12 dated 17-10-1974 which are sale deeds executed by the first defendant in favour of defendants 4 and 5 respectively; but significantly, the date of the will was not mentioned therein.
(3) Rangasamy died suddenly in an accident at the age of 40 and he was not suffering from any ailment. It is very unnatural for a person aged about 40 to execute a will.
(4) The recitals in the will are very unnatural and there is no reference to the near relations of the testator.
(5) The attestors to the will are persons interested in and related to defendants 4 and 5 and they had nothing to do with the deceased-testator. They were only chance witnesses.
(6) Even before the suit, almost all the property bequeathed to the first defendant has been transferred to strangers viz., defendants 4 and 5.
(7) One of the properties bequeathed under the will is a house over which the plaintiff had a right of residence during her lifetime.
(8) No provision has been made whatever for the plaintiff, the mother of the testator.
(9) There is no pleading that the testator was in disposing state of mind at the time of the execution of the will.
(10) The first defendant, who is the propounder of the will took leading part in preparation and execution of the will.
(11) No relation or family friend was present at the time of the execution of the will.
(12) There was no quarrel between the testator and his brothers and, therefore, there was no motive for Rangasamy to execute a will.
Learned counsel laid special emphasison the argument that there should be an express pleading that the testator was in a sound disposing state of mind at the time of execution of the will. Learned counsel admitted that there is no decision to that effect. However, he insisted that I should consider the question on first principles and give my ruling thereon.
8. Learned counsel for the first respondent countered the arguments of the appellant's counsel by submitting that the pleading in the written statement is sufficiently explicit to show that the testator was in a sound disposing state of mind at the time of execution of the will. As regards the suspicious circumstances referred to by learned counsel for the appellant, it was contended that none of them could on the facts of the case be treated as suspicious circumstance. According to learned counsel, the execution of the will has been proved beyond doubt by satisfactory evidence of the attestors and the scribe and there is absolutely nothing on record which would warrant any suspicion in the mind of the Court. Learned counsel pointed out that the only plea raised by the plaintiff in the plaint was that the will was a forged document and that no other contention was urged even at the time of the trial in the Court below. Learned counsel pointed out the absence of any relevant ground in the memorandum of grounds of appeal making any reference to the so-called suspicious circumstances. Learned counsel went on to explain everyone of the circumstances relied on by the appellant as suspicious. Ultimately learned counsel submitted that the conclusion of the Court, below on the genuineness and validity of the will does not warrant any interference by this Court.
9. Proof of will has been the subject of discussion in plethora of decisions, some of which were cited by counsel on both sides. I do not think it, necessary to refer to the entire case law as the same principles are being reiterated again and again. The leading case on the subject is that of H. Venkatachala v. B.N. Thimmajamma, . After referring to the statutory provisions, the Supreme Court held that the onus is on the propounder to show by satisfactory evidence that the will was signed by the testator, that the testator was in a sound and disposing state of mind at the relevant time, that he understood the nature and effect of the disposition and put his signature of his own free will. The Court, however, pointed out that there may be cases in which the execution of the will may be surrounded by suspicious circumstances, which would make the initial onus very heavy and unless it is satisfactorily discharged, Courts would be reluctant to treat the documents as the last will of the testator. The fact that the propounder has taken a prominent part in the execution of the will, which confers on him or her substantial benefits is also indicated as a suspicious circumstance. The Court pointed out that the test of satisfaction of judicial conscience emphasise 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. Ultimately, the Court held that the matter would depend upon the facts and circumstances of each case. The following observations of the Court are very relevant and useful;
"It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard, and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Pareq in Harmes v. Hinkson, 50 Cal WN 895 : AIR 1946 PC 156. "Where a will is charged with suspicion the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth." It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect."
10. In Ramchandra v. Champabai, it was held that where the propounder had taken a prominent part in the execution of the will which conferred substantial benefits on him, that was itself generally treated as a suspicious circumstance attending the execution of the will. In Ancha Ramaiah v. Kommineni Butchias, (1969) 1 SCWR 819, the proposition that it is for the propounder to remove the suspicion and to prove affirmatively that the testator knew and approved of the contents of the will, was reiterated. On the facts of that case, the conclusion of the High Court that the propounded had duly discharged the burden of proof was affirmed. In Chukka Reddy v. Lachma Reddy, (1969) 2 SCWR 605, it was held that when by the will the natural order of succession is disturbed by some one who propounds the will, it is incumbent upon the beneficiary of the will to remove every circumstance of suspicion attaching to the execution of the will and disposal of property by it. On the facts of the case, it was found that the propounder did not discharge the burden of removing the suspicion. The concurrent findings of the trial Court and the appellate Court, which were reversed by the High Court, were restored by the Supreme Court by allowing the appeal and setting aside the judgment of the High Court.
11. Learned counsel for the appellant placed strong reliance on the judgment of the Supreme Court in Jaswant Kaur v. Amrit Kaur, in which the principles laid down in Venkatachala Iyengar case, were reiterated. It is seen from the facts of the case that the suit was filed before the passing of the Hindu Succession Act in which a claim for maintenance was made or in the alternative for a half share in the properties left by the husband of the plaintiff. The suit was contested by the grand-son of the plaintiffs co-widow. Under the customary law governing the parties, the plaintiff was entitled only to a limited interest in the estate of her husband. After the Hindu Succession Act came into force, the plaintiff gave up her claim for maintenance at the end of her evidence and confined her demand to a half share in her husband's estate. So long as the plaintiff was entitled to maintenance or to a limited interest in the husband's estate, the defendant was content to meet the claim by raising pleas like desertion and misconduct. After the passing of the Hindu Succession Act, which enlarged the estate of the plaintiff, the defendant raised a new plea, and that too after the conclusion of the plaintiff's evidence by filing an application stating that he had accidently discovered a will made by the plaintiff's husband and sought the permission of the Court to produce that will. Though he had not given the details of the discovery, the High Court accepted his story. The Supreme Court held that the circumstance of the will being put forward for the first time after the conclusion of the evidence of the plaintiff was itself a suspicious one. The Supreme Court went on to point out the other suspicious circumstances in the case and held on the facts that the propounder had not discharged his burden. Consequently, the judgment of the High Court upholding the will without making any reference to any of the suspicious circumstances was set aside.
12. In Valliammal v. Palaniswamy, (1978) 91 Mad LW 210, Sethuraman, J. has laid down that even in the absence of any plea with regard to suspicious circumstances, if they are found to exist, the propounder has to satisfy the conscience of the Court. In Smt. Indu Bala Bose v. Manindra Chandra Bose, 95 Mad LW (SN) 146, the Supreme Court has held that if suspicious circumstances existed, it is for the propounder to remove the suspicion from the mind of the Court. It is pointed out that any and every circumstance is not suspicious circumstance and that 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. In that case it was held that where the scribe and the attesting witnesses are either employees or friends or relations of the propounder's group, that would not by itself be a suspicious circumstance, since nobody would normally invite a stranger or a foe to be a scribe or a witness of a document executed by or in his favour and normally a known and reliable person, a friend or a relation is called for the purpose. On the facts of the case, the Supreme Court affirmed the judgment of the High Court reversing the trial Court's judgment which has pronounced against the genuineness of the will by treating certain circumstances as suspicious when they were not so.
13. Not being content with citing the decisions of the Supreme Court and this, Court, learned counsel for the appellant invited my attention to the decision of a single Judge of Gauhati. High Court in Smt. Keseswari Hazarika v. Smt. Puspalata Devi, (1987) 1 Cur Civil Cas 874. In that case, the propounder was the second wife of the testator, who had two daughters, one through the first wife and another through the second wife. He had no male issue. No provision was made in the will for the daughters. The Court held that the disposition in the will was unnatural as there was nothing in the will to show as to why the two daughters had not been given any share in the properties. That was one of the reasons given by the Court for disbelieving the will. It is seen from the report that there were number of other circumstances including dissimilarity of signature appearing in the will with the admitted signatures of the testator which led the Court to hold against the will. The Court also considered the prominent part played by the propounder at the time of the execution of the will as a suspicious circumstance.
14. Bearing in mind the above principles, I shall now discuss the evidence on record and thereafter consider the circumstances, referred to by learned counsel for the appellant. P.W. 1 is one of the attestors. He belonged to the village of Pottireddipatti, same village from which the testator hailed. He deposed that he knew Rangasamy and that about 5 or 6 years prior to his deposition, Rangasamy went to his garden and told him that he wanted to write a will in favour of his wife and requested him to go over to his place. According to his evidence, when he went to Rangasamy is place, the other attestor P.W. 2 and the scribe P.W. 3 were present. He stated that Rangasamy requested the scribe to write a will bequeathing the properties to his wife and gave the details. After the will was written, it was read out by the scribe and after Rangasamy approved of the same, it was written on another paper. According to him, it was read out again and approved by Rangasamy. Thereafter, Rangasamy signed on both pages which was seen by the attestors and P.W. 1 attested the same. After P.W. 1, P.W. 2 attested it and the scribe also signed. There is a definite statement in the chief-examination that Rangasamy's physical and mental health were good at that time. In the cross-examination, he denied the suggestion that his house was situated about 1 1/2 miles away from Rangasamy's mill and positively stated that his house was very near the milt. He admitted that his uncle's grand-daughter was married to the fourth defendant and that the fourth defendant had purchased the mill from the first defendant. It was elicited from him in the cross-examination that Rangasamy told him that as he was going to outside places often, there was a possibility of danger and, therefore, he was executing a will in favour of his wife. He denied the suggestion that the will was fabricated after the death of Rangasamy at the instigation of the first defendant. He also denied that he was colluding with the fourth defendant. He also stated that Rangasamy enquired whether the will should be registered and the scribe answered that there was no necessity to register the will. He admitted that he did not know as to what happened to the draft will.
15. P.W. 2 is the other attestor. He stated that 15 days prior to the execution of the will, Rangasamy met him and said that as his wife had no issue and as he was going out of the village very often, he wanted to execute a will in her favour. He stated that after 15 days after that meeting, a boy was sent by Rangasamy to call him to the mill. When he went to the mill, the scribe, the first defendant and Rangasamy were present. The rest pf his evidence is on the same lines as that of P.W. 1. In the cross-examination he stated that the reason given by Rangasamy for executing the will was that he had no issue, he was going to several places and he had sold the jewels of the first defendant and invested in the mill. He expressed his ignorance whether Rangasamy's mill was working in loss or earning a profit. He stated that the fourth defendant was like his brother-in-law, but not related to him. He stated that no other relation of Rangasamy was present when the will was executed. He denied the suggestion that the will was fabricated for the purpose of the case.
16. P.W. 3 is the scribe, who wrote the will. He claims to be a professional document writer. According to him, he knew Rangasamy and his wife. He stated that when he wrote the will, P.W. 1 and P.W. 2 were present. In the cross-examination it was elicited from him that he used to write accounts for the village karnam by name Balasubramania Iyer and that the said Balasubramanian had written the sale deeds executed in favour of defendants 4 and 5. He also denied the suggestion that the will was fabricated by him in collusion with the fourth defendant and others.
17. P. W. 4 is the first defendant. In Chief- Examination she stated that her husband used to have chest pain and that he used to go out of the village very often for the purpose of business. In the cross-examination, she stated that her husband had treatment only from the country doctor. She denied the suggestion that the will was fabricated after the death of her husband.
18. A perusal of the evidence of P.Ws. 1 to 4 shows that the will was duly executed by Rangasamy and attested by P.Ws. 1 and 2. Nothing has been elicited in the cross- examination to disbelieve the witnesses P.Ws. 1 to 3. The mere fact that P.Ws. 1 and 2 are related to the fourth defendant will not in any way discredit their evidence. The deposition of P.Ws. 1 to 3 that all of them were well acquainted with Rangasamy stand uncontradicted. It is very significant that the plaintiff did neither go into the witness box nor examine any other person as her witness. Nor did she file any document in support of her case. The absence of any kind of evidence whatever on the side of the plaintiff to contradict the positive assertions made by P.Ws. 1 to 4 goes a long way to prove the credibility of P.Ws. 1 to 4. The trial Court, which had the advantage of seeing the witnesses, has rightly accepted their evidence as true.
19. The complaint of learned counsel for the appellant is that the Court below has not adverted to any of the suspicious circumstances existing in this case. It does not appear from the record that any argument was advanced before the trial Court inviting the attention of the Court to the so-called suspicious circumstances. As pointed out already, the only contention raised in the plaint was that the will was a forged one. Even in the memorandum of grounds of appeal, no reference was made whatever to the suspicious circumstances which are said to exist in this case. The first circumstance according to learned counsel is the non-production of the will along with the written statement. The will has been admittedly referred to in the reply notice issued by the first defendant on 31-8-1974. For reasons best known to the plaintiff, she has not produced the said reply notice in Court. Obviously, the notice would have contained all the particulars of the will. Hence, the non-production of the will along with the written statement does not give rise to any suspicion.
20. Secondly, it is contended that the date of the will was not mentioned in Exs.B11 and B12, the sale deeds executed by the first defendant on 17-10-74 in favour of the fourth and fifth defendants. Even before the execution of the sale deeds, reference was made to the will in reply notice dated 31-8-1974. The sale deeds are drafted by the Karnam of the village.
The omission to mention the date of the will in those documents is not a suspicious circumstance.
21. It was next urged that no man would execute a will at the age of 40. ft is not an axiomatic rule that a person aged about 40 would not think of executing a will. It depends on the circumstances in his life. The three witnesses examined by the first defendant have clearly stated the reasons given by Rangasamy for his executing the will. In the circumstances stated by them it was quite natural for Rangasamy to have thought of executing a will in favour of his wife so that she would not be left in the lurch in the event of something untoward happening to him.
22. It is next urged that the recitals in the will are unnatural and there is no reference to the near relations of the testator. A perusal of the will shows that the recitals of the will are quite natural. The will commences with a reference to the fact that even after the expiry of nine years since the marriage between the first defendant and the testator, they had no issue. There is a reference to the division of the ancestral properties among the three brothers. There is a reference to the acquisition of further properties in the name of the first defendant and in the name of the testator and also the establishment of the sago factory.
There is a reference to the debts incurred by the testator and the fact that he had to travel to several places very often by bus, cart and lorry. The reason for execution of the will is also clearly set out therein. All that is required to be contained in a normal will finds a place therein. There is no substance in this argument.
23. It is stated that the attestors to the will are not connected with the testator but are related to defendants 4 and 5. P.Ws. 1 and 2 have positively stated that they were will acquainted with Rangasamy and that he had himself requested them to go over to his, mill for the purpose of attesting the will. There is no justification for the comment made by learned counsel for the appellant that the attestors were chance witnesses.
24. The circumstance that the property was transferred by the first defendant to defendants 4 and 5 even before the suit has no relevance to the execution of the will. It is clear from the evidence that there were debts due by Rangasamy at the time of his death and the first defendant was under necessity to discharge the debts. She has explained the urgency for selling the properties to defendants 4 and 5. The fact that the plaintiff had a right to reside in the house bequeathed to the first defendant under the will and the omission to mention the same in the will do not affect the execution of the will It cannot be treated as a suspivious circumstance. There is no room for the complaint that the plaintiff, the mother of the testator has been disinherited. or that the absence of any provision for her is a suspicious circumstance. There is no dispute that the mother was throughout living with the testator and the first defendant. The testator had two brothers, who could take care of the mother in the event of his death, but the young wife of the testator would have none to protect her interest. If any property had been given by the testator to his mother, it would have gone to his brothers through her. As rightly urged by learned counsel for the first respondent, the testator did not want such a contingency to take place. There is nothing unnatural in the testator omitting to make a provision for his aged mother, who had two other sons to take care of her.
25. There is absolutely no basis for the argument that the first defendant took a leading part in the preparation and exeuction of the will. There is no evidence to that effect. The only evidence is that the first defendant was present at the time of the execution of the will. No witness has spoken to her having played any part in the preparation of the will There is not even a whisper that she spoke any word to her husband at that time or made a request to him to make a provision in a particular manner. When the witnesses have stated categorically that Rangasamy himself approached them with a request to go over to the mill for executing the will and when there is no suggestion in the cross-examination that the first defendant took part in the preparation of the will by suggesting the terms thereof or otherwise, the argument that the propounder took a leading part in the execution and preparation of the will is without any basis and it has to be rejected.
26. The fact that no other relative of the testator or family friend was present on the occasion is not a suspicious circumstance at all Executing a will is not like performing a marriage in the house and nobody would except the testator to invite his relations and friends to witness the execution. The argument that there was no motive for the testator to execute a will as there was no quarrel between him and his two brothers is without any substance. The reason for executing the will has not only been stated in the will but also established by the evidence of P.Ws. 1 to 3.
There was sufficient motive for Rangasamy to execute the will.
27. The only other circumstance that has to be dealt with is the absence of a plea in the written statement that Rangasamy was in a disposing state of mind at the time of the execution of the will. Learned counsel contended that whenever a will is put forward by a part it should be expressly stated in the pleading that the will was executed by the testator in a sound disposing state of mind and that in the absence of such a plea, it will not be open to the party relying on the will to let in evidence that the testator was in a sound and disposing state of mind. Learned counsel admitted that there is no authority for that proposition. However, he relied on the following passage in the judgment of the Privy Council in William Robins v. National Trust Co. Ltd., AIR 1927 PC 66 :
"..... Whether a man at the time of making his will had testamentary capacity, whether a will was the result of his own wish and act or was procured from him by means of fraud or circumvention or undue influence, are pure questions of fact....."
Learned counsel developed the argument by referring to the following definition of 'cause of action' found in Read v. Brown, (1889) 22 QBD 128:
"..... The expressions "cause of Action", and "part of the cause of action" have long: been judicially defined as meaning respectively the material facts and any material fact in the case for the plaintiff."
Reliance is placed on Order VI, Rule 2, Code of Civil Procedure, under which "every pleading shall contain and contain only, a statement in a concise from of the material facts on which the party pleading relies for his claim or defence, as the case may be". Learned counsel submits that for the proof of a will, the sound and disposing state of mind of the testator is a material fact and it should be expressly pleaded. I do not agree with this argument. When a person relies on a will and sets out in the pleading that the will was executed by the testator, it goes without saying that the pleading is to the effect that the will was executed by the testator when he was in sound and disposing state of mind. Even if it is not expressly stated that the testator had sound and disposing state of mind, the pleading that the will was executed by so and so would only mean that it was a valid execution in the sence that the testator was in a sound and disposing state of mind. If the other party challenges, the testamentary capacity of the testator, it is for him to raise a specific plea to that effect and of course the burden will be on the propounded to prove that the testator had the necessary testamentary capacity for executing the will. In my view the discussion is wholly academic as on the facts of this case, the question does not arise at all I have already referred to the fact that in the plaint, the only plea raised by the plaintiff was that the will was a forged one. In the written statement the first defendant has in more than one place relied on the will expressly and referred to the factum of execution by Rangasamy Udayar. In my view, the pleading in the written statement is sufficient. In the evidence when P.Ws. 1 to4 deposed that Rangasamy Udayar's physical and mental health was good at the time of execution of the will, no suggestion was made in the cross-examination that he did not have the testamentary capacity or that he was mentally ill. There was absolutely no whisper at any stage of the evidence to that effect. The plaintiff did not give evidence or examined any witness to show that Rangasamy Udayar's mental health was not all right. No ground has been raised in the memorandum of appeal to that effect. Even now, learned counsel is not prepared to contend that Rangasamy Udayar did not have the testamentary capacity, but the only point urged is that there was no express pleading on the part of the first defendant on that aspect of the matter. The contention urged by learned counsel is without any substance.
28. I hold that the various circumstances relied on by learned counsel for the appellant do not have the effect of dislodging the positive evidence adduced in support of the truth and validity of the will. The observations of the Privy Council made in Choteynarain Singh v.
Mussamat Ratan Koer, (1895) 22 Ind App 12 would be very useful and they are as follows: --
"The theory of improbability remains to be considered; and the first observations which their Lordships have to make is, that, in order to prevail against such evidence as has been adduced by the Respondent in the case, an improbability must be clear and cogent. It must approach very nearly to, if it does not altogether constitute, an impossibility....."
In a case where the execution is proved by cogent and acceptable evidence, the Court should not disbelieve the will on the basis of so-called suspicious circumstances unless those circumstances would render the execution of the will an utter improbability very near to impossibility.
29. Once the will is proved to be true and it was executed by the testator, it is not for the Court to embark upon an enquiry whether the dispositions made therein are fair and just. A Division Bench of the Calcutta High Court had occasion to consider that aspect of the Madras in Ajit Chandra v. Akhil Chandra, and they expounded the law thus :
"The will has been challenged on the ground that it is an unnatural will, because the testator prefers one son to others. On the question of unnatural and officious will a Court of Probate has to act with great caution. The testator who has full testamentary powers and a disposing mind cannot be dictated by the Court as to what is a fair and an unjust disposition. The will is the will of the testator and he has, under the law, the freedom to give his property to whomsoever he likes. What strikes the Court as an eccentric or an unjust or an unnatural disposition can certainly be taken as a consideration on the main question of finding out whether the testator was acting as a free agent and with a sound disposing and understanding mind. But once, it is established that the testator was free and had a sound disposing mind, then it is no longer the duty of the Court to go further to inject its own ethics of what is or is not a moral or a fair disposition according to the Court's own standards. Judged by that test, many a will by a father depriving his sons, would be unjust and indeed many a will exhibit man's inequity against his nearest and dearest relations and yet not on that ground alone have those wills been declared by this Court invalid. Such wrongs, however grievous, are not for the temporal courts of justice to correct and are better left to Him Who adjust all wrongs and non-justiciable inequities, and under whose munificence the testator and the disinherited alike live and die". With respect, I agree.
30. The trial Court has considered the evidence on record fully and chosen to believe the witnesses examined by the first defendant. The decision of the Court below is not so manifestly erroneous as to be interfered with by this Court. As pointed out by the Privy Council in Harmes v. Hinkson, (1946) 2 Mad LJ 156 : (AIR 1946 PC 156), the appellate Court should pay respect to the opinion which a Judge, who has watched and listened to the witnesses, has formed as to their credibility.
31. Hence, I do not find any merit in the appeal and the conclusion that the will put forward by the first defendant is genuine and valid has to be affirmed.
32. However, the matter is not allowed to rest there. The appellant has filed C.M.P. No. 4243 of 1985 for leave to file additional grounds. Two of the grounds seek to rely on the circumstances, which according to learned counsel for the appellant, are suspicious. I have already dealt with them and found against the same. One of the other grounds is based on Section 20 of the Hindu Adoptions and Maintenance Act Under that Section, a Hindu is bound during his or her lifetime, to maintain his or her aged or infirm parents. It is argued that Rangasamy Udayar was under the statutory liability to maintain his mother, the plaintiff in the suit. Even assuming that he was under legal obligation to maintain his mother, that would not in any way help the present appellant to make any claim to any of the suit properties after the death of the plaintiff. The plaintiff did not pray for any decree for maintenance and she having died after the dismissal of the suit, her right to maintanance, if any, had come to an end.
33. Another ground sought to be raised is that under the partition deed dated 20-10-1964, the plaintiff was given a right to reside in the house and that the said right had become absolute under Section 14 of the Hindu Succession Act by virtue of the decision of the Supreme Court in V. Thulasamma v. V. Sesha Reddi, AIR 1977 SC 1944. This contention is also one without any substance. The partition deed dated 20-10-1964 came into existence long after the Hindu Succession Act came into force. The house in question was allotted to Rangasamy subject to the obligation that his mother, the plaintiff, should be allowed to reside therein for her lifetime. The plaintiff was not given any right in the properly as such in recognition of her right to maintenance or any other right. It has to be remembered that at the time when the partition deed was brought about, Chidambara Udayar was alive and he had properties of his own. As the plaintiff was not given any interest in the house as such, there was no question of her getting an absolute estate under Section 14 of the Hindu Succession Act. As laid down by the Supreme Court in Eramma v. Veerupana, AIR 1966 SC 1897, Section 14 of the Hindu Succession Act will not confer absolute title on a female Hindu who does not possess any vestige of title.
34. Learned Counsel for the respondent submitted that the appellant should not be permitted to raise new pleas in the appeal and relied on the decision of the Privy Council in Shankarlal Narayandas Mundade v. New Mofussil Co., Ltd., (1946) 2 Mad LJ 259 : (AIR 1946 PC 97) and that of the Division Bench of this Court in K.M. Kokila v. K.M. Rajabather . He has also drawn my attention to the decision in Kalyana Krishnaswamy Naidu v. State of Tamil Nadu (1985) 1 Mad LJ 399, wherein it has been held that a plea which is personal to a party cannot be raised by the legal representative. It is unnecessary to consider the decisions cited by learned counsel for the respondent as I have dealt with the merits of the contention raised by the appellant and found against the same.
34A. The appellant has filed C.M.P. No. 5578 of 1985 for amending the plaint in order to include the pleas based on the partition deed dated 20-10-1964 and Section 14(1) of the Hindu Succession Act. A Bench of this Court has considered the question as to when amendment of pleadings could be allowed in an appellate Court in Kumaraswami v. D.R. Nanjappa, . The Bench stated the law thus :--
"Having regard to the age of this litigation, and also for the reason that the amendment sought for sets up a totally different cause of action which ex facie cannot stand on a line with the original pleading, we are unable to allow this application for amendment. A pleading could only be amended if it is to substantiate, elucidate and expand the preexisting facts already contained in the original pleadings; but under the guise of an amendment a new cause and a case cannot be substituted and the courts cannot be asked to adjudicate the alternative case instead of the original case. Though it is expedient under certain circumstances to take into consideration the supervening facts in the course of a litigation which is long drawn, yet the march and lapse of such time alone cannot be the foundation to mechanically accept the request for amendment because due to such passage of time, several event have happened and several matters have intervened. It would be hazardous to accept such an application for amendment to a plaint on the only ground of passage of time and change of circumstances, for, that would run counter to the essential ratio governing the principle of amendment of pleading which is that no amendment can introduce a cause of action which was never thought of originally or could not have been thought of earlier and which is diametrically opposite to that stated in [he original plaint. We are also of opinion that the application for amendment is an afterthought and therefore, lacks bona fides....".
35. Applying the principles laid down by the Bench, the amendment prayed for in the present case cannot be granted. I have also held on the merits that the contentions urged by the appellant are uasustainable. Hence, C.M.P. Nos. 4243 and 5578 of 1985 are dismissed.
36. C.M.P. Nos. 10463 and 10464 of 1988:
C.M.P. No. 10463 of 1988 has been filed by the appellant for admission of additional evidence. He has produced a document purporting to be a copy of the notice issued by the plaintiff through an advocate Sri A. Balasubramanian of Namakkal on 4-7-1973 to the first defendant and four others. The appellant has also filed postal acknowledgments from the addresses excepting the first defendant. The very appearance of the document gives rise to suspicion. It is said to be an office copy kept by the advocate. But, it bears the full signature of the advocate at the bottom in a different ink. There is nothing on the face of the record to show that it is an office copy. It is written in ink and it is not a carbon copy. There is no explanation as to why the document was not produced in the trial Court. It is stated in the affidavit filed in support of the application that while preparing the appeal for getting ready for final disposal, the appellant's counsel "unearthed" a copy of the notice. The word "unearthed" seems to have been appropriately used though unintentionally. No details have been given as to where the document was found and in whose custody it was. The requirements of Order XLI Rule 27, Code of Civil Procedure are not in any way satisfied. The petition is, therefore, dismissed.
37. C.M.P. No. 10464 of 1988 : This petition is for permission to pay the court-fee of Rs. 1864-75 P. payable on the memorandum of appeal Though the affidavit filed in support of the application for additional evidence has been utilised to support this petition, no averment has been made in the said affidavit with regard to payment of court-fee. The Court has to presume that the court-fee is sought to be paid by the present appellant as the appeal was allowed to be filed in forma pauperis by the original appellant Probably, the present appellant is not in indigent circumstances and he is in a position to pay the court-fee. The petitioner is, therefore, permitted to pay the court-fee payable on the memorandum of appeal. The C.M.P. is accordingly ordered. The court-fee shall be paid by the petitioner within two weeks from this date.
38. In the result, the appeal fails and is dismissed with costs.