Madras High Court
Perumal vs Alagammal Alias Pappathi on 16 November, 2011
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16/11/2011 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A(MD)No.192 of 2008 and M.P(MD)No.1 of 2008 Perumal ... Appellant/Appellant/ Plaintiff Vs. Alagammal alias Pappathi ... Respondent/Respondent/ Defendant Prayer Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 23.10.2007 made in A.S.No.93 of 2006 on the file of the Sub Court, Ambasamudram, in confirming the judgment and decree dated 24.10.2005 made in O.S.No.276 of 2002 on the file of the Additional District Munsif Court, Ambasamudram. !For Appellant ... Mr.H.Arumugam ^For Respondent ... Mr.M.Vallinayagam * * * * * :JUDGMENT
This second appeal is focussed by the defendant animadverting upon the judgment and decree dated 23.10.2007 made in A.S.No.93 of 2006 on the file of the Sub Court, Ambasamudram, in confirming the judgment and decree dated 24.10.2005 made in O.S.No.276 of 2002 on the file of the Additional District Munsif Court, Ambasamudram.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus:
The plaintiff - Perumal, filed the suit for declaration of his title over the suit property and for recovery of possession based on the registered Will dated 15.02.1990 executed by the testator - Lakshmiammal.
4. The defendant resisted the suit on the ground that the said Will relied on by the plaintiff is not a genuine one and the defendant's husband Krishnasamy happened to be the brother of the said testator - Lakshmiammal, who died issueless and her husband also predeceased her. Whereupon, Krishnasamy enjoyed the suit property and thereafter, he executed a settlement deed in favour of the defendant; whereby she has been in possession and enjoyment as full owner.
5. Whereupon the trial Court framed the relevant issues.
6. During trial, P.W.1 and P.W.2 were examined and Exs.A.1 to A.6 were marked on the side of the plaintiff. D.W.1 to D.W.3 were examined and Exs.B.1 to B.3 were marked on the side of the defendant.
7. Ultimately, the trial Court dismissed the suit, as against which the appeal was filed for nothing but to be dismissed.
8. Being aggrieved by and dissatisfied with the same, the plaintiff preferred the present second appeal on various grounds and also suggesting the following substantial questions of law:
"(a) Whether the courts below are right in applying the principle of suspicious circumstances excluding the natural heir from inheriting the property under Will to the case when there is no natural heir to the Testator and the person claiming right is only the heir by law of inheritance and hence the judgment of the courts below are liable to be interfered with by this Hon'ble Court?
(b) Whether the courts below were committed wrong in not considering the correct interpretation of "Natural Heir" and "Heir by law of inheritance" while deciding suspicious circumstances excluding the heir by law of inheritance under Will from inheriting the property and hence the judgment of the courts below warrants interference by this Hon'ble Court?
(c) Whether under law is it necessary for the propounder to prove the suspicious circumstance of exclusion of others from inheriting the property when the testator of the will had no issues and stated the reason for executing the will also?
(d) Whether the finding of the courts below that the appellant has not disproved the fact that the testator did not know to sign is against the settled principle of law that a person who pleads has to prove and hence the judgment of the courts below warrants interference by this Hon'ble Court?
(e) Whether the finding of the courts below that PW-2 has not specifically stated that the Testator put her thumb impression in Ex.A3 in his presence is without considering the evidence available on record and is perverse amounts to non-consideration of evidence available on record and hence the same has to be interfered by this Hon'ble Court?"
(extracted as such.)
9. My learned Predecessor formulated the following substantial questions of law:
"Whether the judgment and decree of the Courts below are perverse on account of its misconstruction of document in Ex.A.3?"
(extracted as such.)
10. On hearing both sides, I framed the following additional substantial questions of law:
"(1) Whether both the Courts below were justified in disregarding the Will
- Ex.A.3 in view of the suspicious circumstances namely, (i) participation of the beneficiary - the plaintiff - Perumal in bringing about the Will and (ii) the disinheritance of testator's brother without sufficient cause?
(2) Whether there is any perversity or illegality in the judgments of both the Courts below?
(3) Whether both the Courts below were not justified in disbelieving P.W.2?"
11. Both sides took note of the additional substantial questions of law also and addressed arguments on all the substantial questions of law including the additional ones.
12. At the outset itself, I would like to refer to the following decisions of the Honourable Apex Court:
(i) Hero Vinoth (Minor) v. Seshammal reported in (2006) 5 Supreme Court Cases 545.
(ii) Kashmir Singh v. Harnam Singh and another reported in 2008 (4) SCALE
300.
(iii) State Bank of India and others v. S.N.Goya reported in 2009-1-L.W.1.
13. A plain reading of those precedents would indicate and demonstrate that under Section 100 of the Code of Civil Procedure, a Second Appeal cannot be entertained, unless any substantial question of law is involved.
14. The Honourable Apex Court, time and again, reiterated the point that in second appeal, as per Section 100 of the Civil Procedure Code, interference is possible if at all there is any perversity or illegality in the judgments of the Courts below or total absence in considering the evidence available on record or misreading of evidence on the part of the Courts below.
15. Keeping in mind the aforesaid dictum, I heard the arguments advanced on both sides.
16. All the above four substantial questions of law are taken together for discussion as they are inter-linked and inter-woven, inter-connected and entwined with one another.
17. The nitty-gritty, the gist and kernel, the pith and marrow of the arguments as put forth on the side of the plaintiff would run thus:
(a) Both the Courts below failed to appreciate the fact that Ex.A.3 is a registered Will which attaches to itself certain genuineness and it is for the defendant who challenges the Will, to prove its alleged invalidity, but the defendant had not adduced any evidence; wherefore both the Courts below were not justified in doubting the Will and simply rejecting it. The evidence of P.W.2 was not interpreted properly, but it was commented upon adversely by making a mountain out of a mole hill. Simply because, P.W.2 - one of the attesting witnesses who was alive at the time of proving the Will, deposed that the Will was written on embossed stamp papers, but, in fact, it was not so, the Courts below started doubting its genuineness.
(b) The Courts below simply developed some suspicion and endorsed the pleas of the defendant as correct and held wrongly that Perumal - the beneficiary participated in bringing about the Will and that it was one of the suspicious circumstances. In fact, the Will itself would recite that it was Perumal and his wife who were looking after the said testator and in such a case, his presence cannot be taken as one fatal to the genuineness of the Will.
Krishnasamy, the husband of the defendant, is not a Class I heir to the testator and he was only a Class II heir as per Hindu Succession Act. In such a case, by no stretch of imagination, it could be taken that because Krishnasamy was disinherited by the Will, that should be taken as a suspicious circumstance. If at all, any child of the testator was disinherited, then it could be commented upon as a suspicious circumstance. In this case, in the written statement, there is no whisper at all as in what manner, the testator was looked after by Krishnasamy. Per contra, there is evidence to display and convey that during the year 1990 onwards, the testator started living with the beneficiary namely Perumal, the plaintiff herein. The wife of Perumal namely, Lakshmi happened to be the adopted daughter of the testator Lakshmiammal and both the Courts below simply suspected the plea of adoption and held as though it was not proved.
(c) The defendant in no manner highlighted as to how she and her husband were looking after the testator till her death and simply based on ideas cultivated by phantasmagorial thoughts, the Will cannot be doubted.
(d) Even though the defendant suggested that the testator was in the habit of signing and that her signature is found missing in the Will, the defendant did not choose to produce any document wherein she purportedly signed. Wherefore, the defendant's contentions should be taken as the ones exposing their false pleas. Both the Courts below on plainly accepting the contentions of the defendant, disbelieved the Will and dismissed the suit, warranting interference in second appeal.
18. In a bid to shoot down and mince meat, pulverise and torpedo the arguments and contentions as put forth and set forth on the side of the plaintiff, the learned Counsel for the defendant would advance his arguments which could pithily and precisely, tersely and briefly be set out thus:
(a) Section 68 of the Indian Evidence Act contemplates that the Will should be proved satisfactorily. Even though Annamalai, one of the attesting witnesses, died, yet P.W.2 - Thirunavukkarasu, one other attesting witness failed to satisfy the Court about the genuineness of the execution of the Will -
Ex.A.3 dated 15.02.1990 by the testator concerned. Perumal, the beneficiary even as per the deposition of P.W.2, participated actively in bringing about the Will. There is also nothing to indicate and connote that P.W.2 - Thirunavukkarasu, one of the attesting witnesses, saw Annamalai, the one other attesting witness signing in the presence of the testator and that the testator witnessed Annamalai signing in her presence. The vague deposition of P.W.2 would not satisfy the requirements of Section 68 of the Indian Evidence Act.
(b) In the Will, there are wrong statements as though there were no legal heirs for the testator, when in fact, admittedly, Krishnasamy was alive as on the date of the emergence of the Will. Even though in the Will, it was claimed that the plaintiff's wife - Lakshmi, happened to be the daughter of the testator's alleged brother Gurusamy, yet, while deposing before the Court, P.W.1 categorically admitted that Gurusamy was not the brother of Lakshmiammal, the testator. As such, the factum of the participation of the beneficiary in bringing about the Will and also the unexplained disinheritance of Krishnasamy as per the Will without adequate explanation, are fatal and both the Courts below au faith with law and au courante with facts dealt with the matter and dismissed the suit warranting no interference in second appeal.
19. The learned Counsel for the defendant would rely on the following decisions:
(i) Ram Piari v. Bhagwant reported in AIR 1990 SUPREME COURT 1742. An excerpt from it, would run thus:
"4. Ratio in Malkani v. Jamadar, AIR 1987 SC 767 was relied on to dissuade this Court from interfering, both, because the finding that Will was genuine, was a finding of fact and omission to mention reason for disinheriting the daughter or taking prominent part by beneficiary by itself was not sufficient to create any doubt about the testamentary capacity was because of misunderstanding of the correct import of the decision and the circumstances in which it was rendered. Property in Malkani's case was land. Beneficiary was nephew as against married daughter. Anxiety in village to protect landed property or agricultural holdings from going out of family is wellknown. Even though it cannot be said to be hard and fast rule yet when disinheritance is amongst heirs of equal degree and no reason for exclusion is disclosed, then the standard of scrutiny is not the same and if the Courts below failed to be alive to it as is clear from their orders then their orders cannot be said to be beyond review. Although this Court does not normally interfere with findings of fact recorded by Courts below, but if the finding is recorded by erroneous application of principle of law, and is apt to result in miscarriage of justice then this Court will be justified in interfering under Article 136."
(ii) Kausalya, D. v. S.Sankaran reported in 2002(1)CTC 650. Certain excerpts from it, are extracted hereunder:
"19. From the above principles, it is clear that unequal and unjust disposal will be a suspicious circumstance with regard to the genuineness of the Will and the burden is on the propounder to offer an explanation and get over such suspicious circumstances, failing which the Will can be held to be a non- genuine one.
20. If we look at the facts of the present case, keeping the above principles in mind, in this case, admittedly the appellant was totally deprived of her share. Taking into consideration of the fact that the testator has got two daughters, it is for the court to consider whether there is any valid reason for the testator to exclude one of the heirs from succeeding to the property. As held by the Apex Court in the above referred judgments, it is for the respondent to explain. When we posed this question, we hastened to say that we are fully aware that the mere exclusion of one of the heirs cannot be a ground to hold that the Will is not genuine or the Will was executed under undue influence. However, it is the well laid principle that where the Will has been challenged on the ground that it is unnatural Will, because the testator preferred one or the other, the court of probate has to act with great caution. The mere proof of execution of the Will is sufficient to hold the genuineness of the same because of the existing suspicious circumstances of unnatural disposal of the property. The testament is the will of the testator and he has, under the law, a freedom to give his property to whomsoever he likes. When the court finds that there is an exempt or an unjust or an unnatural disposition, then the Court can certainly take into consideration of the main question of finding out whether the testator was acting as a free agent and with a sound disposing or understanding mind. While considering this question the primary thing to be noted is the disposition in the Will and the circumstances both antecedent and subsequent to the Will must show that the testator deliberately choosed the propounder. If the bequest made in the Will appears to be unnatural, then the court has to scrutinise the evidence in support of the execution of the Will with greater degree of care than usual.
........
22. If the entire evidence is looked into, the respondent did not offer any acceptable explanation for the exclusion of the appellant from inheriting the property. In the absence of any detail with regard to the conduct of the appellant which drove the testator to exclude the appellant along with the unequal disposition of the property by the testator makes it clear that there exists suspicious circumstances which were not properly explained and got over by the respondent. It is also worthwhile to refer that the appellant is a widow having lost her husband in 1973 and not in an affluent circumstance."
(iii) Benga Behera and another v. Braja Kishore Nanda and others reported in 2008-1-L.W. 241. Certain excerpts from it, would run thus:
"44. Learned trial Judge as also the High Court did not take into consideration the effect of such contradictions and inconsistencies, particularly the interpolation/variance in the Xerox copy of the Will vis-'-vis certified copy thereof. Serious consideration was required to be bestowed on the contention of the appellants that thumb impressions of the testatrix on different pages of the Xerox copy did not tally. No effort was made to compare the thumb impression appearing on the Xerox copy with the thumb impression appearing on other admitted documents. Non-production of the original Will stating that the Will got lost, gives rise to an inference that it might have been that the Will did not contain the thumb impression of the testatrix. The testatrix was an old and ill lady. She had no independent adviser in the matter of the execution of the Will. On the other hand, the plaintiff/respondent No.1 and his father being disciple of her Guru were in a position to dominate her mental process.
.......
46. Existence of suspicious circumstances itself may be held to be sufficient to arrive at a conclusion that execution of the Will has not duly been proved."
(iv) Sri J.T.Surappa and another v. Sri Satchidhanandendra .... reported in ILR 2008 KAR 2115.
20. A cumulative reading of the above precedents would highlight and spotlight the fact that in respect of a registered Will, no doubt, certain presumptions would arise, but it does not mean that the propounder of the Will is exonerated from proving the execution in accordance with Sections 68 and 69 of the Indian Evidence Act. In this case, admittedly, Annamalai, one of the attesting witnesses to the Will, was no more at the time of trial. P.W.2, who was the only attesting witness, deposed before the Court so as to prove the Will.
21. A plain reading of the deposition of P.W.2 would unambiguously and unequivocally highlight the fact that his deposition was not free from doubt. He would claim that he was a co-worker of the testator in the Mill, that the Will was written on embossed stamp papers, but in fact, it was written on plain papers.
22. The learned Counsel for the plaintiff by inviting the attention of this Court to the judgment of this Court in Muniammal v. Annadurai (Deceased) and 7 others reported in 2008(4) CTC 589, would spotlight that due allowances have to be given for lapse of memory. I would like to agree with him that the witness like P.W.2 after a decade, might not be in a position to remember as on what paper, the Will was written. Wherefore, to that much extent, I would like to agree with the learned Counsel for the plaintiff that owing to lapsus memoriae, P.W.2 might have stated that Ex.A.3 Will was written on embossed stamp papers, even though the Will was written on plain papers. However, it has to be seen as to whether the said witness satisfactorily deposed in concinnity and in consonance with Sections 68 and 69 of the Indian Evidence Act.
23. In this connection, I would like to refer to the following decisions of the Honourable Apex Court:
(i) Seth Beni Chand v. Kamla Kunwar reported in (1976) 4 Supreme Court Cases 554. An excerpt from it, would run thus:
"8. ... By attestation is meant the signing of a document to signify that the attestor is a witness to the execution of the document; and by Section 63(c) of the Succession Act, an attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document. Nigam's evidence shows that he and the other two witnesses saw the testatrix putting her thumbmark on the will by way of execution and that they all signed the will in token of attestation in the presence of the testatrix, after she had affixed her thumbmark on the will."
(ii) Janki Narayan Bhoir v. Narayan Namdeo Kadam reported in (2003) 2 Supreme Court Cases 91. Certain excerpts from it, would run as under:
"8. To say a will has been duly executed the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e. (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the will, or must have seen some other person sign the will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witnesses has to sign the will in the presence of the testator.
9. It is thus clear that one of the requirements of due execution of a will is its attestation by two or more witnesses, which is mandatory.
10. Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. According to the said section, a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. It flows from this section that if there be an attesting witness alive capable of giving evidence and subject to the process of the court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a court of law by examining at least one attesting witness even though the will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of clause (c) of Section 63 viz. attestation by two attesting witnesses in the manner contemplated therein, the examination of the other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the will by the other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."
24. A bare poring over of the aforesaid precedents would demonstrate and evince that the only the surviving witness in order to satisfy the requirements of Sections 68 and 69 of the Indian Evidence Act, should unambiguously and unequivocally, clearly and plainly depose that he witnessed the testator signing in his presence and that he attested the testator's signature. Over and above that, when that witness ventures to speak about one other attestor's role, then he must be able to say similarly that the deceased attesting witness, either saw the testator signing the Will or got acknowledgment from the testator; the testator signed the Will and whereupon the deceased attesting witness attested the testator's signature in the presence of the testator, but such evidence is precisely lacking in the deposition of P.W.2. However, here and there, so to say, here a little and there a little, some evidence cropped up in the deposition of P.W.2 as though Annamalai was also present at the time of drafting the Will; P.W.2 signed the Will as attesting witness after the testator having signed it, and thereafter, the other witnesses signed the Will.
25. In my considered opinion, the deposition of P.W.2, regarding the signature of Annamalai the deceased attesting witness, was not free from doubt and it does not also satisfy the strict requirements of Sections 68 and 69 of the Indian Evidence Act.
26. It is also a fact that Perumal - the plaintiff was very much present at the time of scribing of the Will Ex.A.3 as well as at the time of execution of the Will by the testator. In such a case, the presence of Perumal, the beneficiary at the time of execution of the Will should necessarily be taken as the one of the suspicious circumstances and that would lead to the suspicion that he might have in all probabilities dominated the Will of the sexagenarian testator aged about 65 years, who had no issues and that her husband also predeceased her.
27. Both the Courts below placing reliance virtually on the well settled proposition of law correctly held that the said fact constituted one of the suspicious circumstances.
28. The learned Counsel for the defendant would argue that in Ex.A.3, there is no endorsement by the scribe that the contents of the Will were read over to the testator and that she in turn understanding the contents acknowledged the same before putting her signature as executant. In Janki Narayan Bhoir v. Narayan Namdeo Kadam reported in (2003) 2 Supreme Court Cases 91, the said point is found posited.
29. Regarding unexplained disinheritance of Krishnasamy is concerned, it is an admitted fact that Krishnasamy was the brother of the testator who was alive at the time of the testator executing the Will. However, in the Will, it is found written in paragraph 3 thus:
"vdf;F Mz; bgz; thhPRfs; fpilahJ. vd; tBahjpf fhyj;jpy; vd;id vd; mz;zd; FUrhkp ehaf;fh; kfs; byl;Rkpahs; fzth; bgUkhs; vd;gth; ghJbfhz;Lk; vdf;F Btz;oa gzptpilfis bra;J tUtjhy; vd; Ma[Rf;Fg;gpd; njd; jgrpy; fz;l brhj;ij tpf;fpukrpA;fg[uk; fl;lg;g[sp Bkl;Lj;bjU, kk;krhkp ehaf;fh; kfd; kpy;Btiy i& bgUkhs; vd;gth; mile;J rh;tRje;jpu ghj;jpakha; Mz;lDgtpj;Jf; bfhs;sBtz;oaJ kw;wgo BtWahUf;Fk; jgrpy; brhj;jpy; ghj;jpaKkpy;iy."
30. A plain reading of the aforesaid recitals in the Will - Ex.A.3, would exemplify and expatiate that it is quite against the actuals.
31. Even though Krishnasamy, sanguine brother of the testator, was very much alive, that was not found reflected in the recitals. It is found stated in the Will as though she had no legal heirs either male or female at all. Over and above that, the recitals would read as though one Gurusamy happened to be the testator's brother when in fact it was not so. P.W.1 being the plaintiff, during trial, would depose that Gurusamy was not the sanguine brother of the testator, but he was a distant relative through female line etc.
32. As such, by way of adding fuel to the fire and fanning the flame, the said Lakshmi, the wife of the beneficiary namely the plaintiff was not described as the adopted daughter of the testator, but she was only described as the daughter of Gurusamy, the alleged brother of the testator. It is also quite obvious and axiomatic from the perusal of the evidence that the alleged adoption of the plaintiff's wife by the testator was not at all proved. There is also nothing to indicate and denote as to how the testator had not chosen to execute the Will in favour of the alleged adopted daughter - Lakshmi, but she had gone to the extent of executing the Will in favour of the husband of the said Lakshmi, for which the learned Counsel for the plaintiff by pointing out the evidence of the witnesses would submit that the said Lakshmi, the wife of the plaintiff was very much present at the time of the emergence of the Will, which act would signify her consent.
33. In fact, those facts will not in any way support the genuineness of the Will, but it projects a picture that the beneficiary and his wife were present at the time of scribing of the Will and also at the time of registration of the Will. Consequently and as a sequlae, that would not dispel the suspicious circumstances, but it would add strength to the suspicion regarding suspicious circumstances.
34. Regarding the residence of the testator, there were some prevaricative stands. The net result of the analysis of the evidence would demonstrate and display that as on the date of emergence of the Will, the testator was residing alone in the house situated in Thangamman Kovil South Street whereas the house of the plaintiff was situated at Kattapuli Mettu Street and the house of Krishnasamy was situated at Kambalathar South Street, perhaps all these streets were in one village only. However, P.W.1 would claim that during the year 1990, presumably after the execution of the Will or at the time of the execution of the Will, the testator started living in his house, because she had been living alone earlier at Thangamman Kovil South Street.
35. The learned Counsel for the plaintiff would submit that Krishnasamy is Class II heir as per Hindu Succession Act and his disinheritance by virtue of the Will cannot be taken seriously, but in the decision of the Honourable Apex Court in Ram Piari v. Bhagwant reported in AIR 1990 SUPREME COURT 1742, it is found stated that even Class II heirs as per Hindu Succession Act should be treated as heirs and their disinheritance would be of much significance. Whereas the learned Counsel for the plaintiff would try to explain and expound unsatisfactorily and unacceptably that it was a case in which among the Class II heirs, some were preferred and some were left and that was why the Honourable Apex Court held so.
36. He would also cite the definitions of "Heir general" and "Heirs, lineal and collateral" as found set out in "The Law Lexicon" thus:
"Heir general. An heir who generally represents the deceased and succeeds to everything not specially provided to other heirs.
Heirs, lineal and collateral. Heirs may be lineal or collateral. In certain contingencies brothers, sisters, parents, and even kindred in the remotest degree, are heirs at law.
The word "heirs" is one of the strongest and most expressive terms in the law, and when employed it will be given its settled legal meaning, unless the context shows in the clearest and most decisive manner that the parties who used it intended that it should have some other meaning. Heirs and lineal and collateral, but the generic term includes both classes."
and submit that if there is disinheritance of Class I heirs as per Hindu Succession Act, it could be commented upon. I am of the considered view that such a sweeping statement cannot be made if any of the natural heirs is disinherited by Will. No doubt, in the presence of Class I heirs, Class II heirs cannot obviously have any claim, but if there are no Class I heirs, then Class II heirs can very well press into service the plea that their unexplained disinheritance is fatal to the Will.
37. The learned Counsel for the defendant would vehemently argue that in this matter, absolutely there is no smidgeon or molecular, shrad or miniscule, jot or pint of evidence to indicate and denote that the defendant's husband - Krishnasamy for some reason or other was disinherited. In fact, his existence in this world itself was found suppressed in the Will and in such a case, certainly it should be taken as a suspicious circumstance. Had the testator went to the extent of reciting in the Will that her brother was so discourteous towards her; that there was no love last between them, that he did not look after her, then, the matter would be different. On the other hand, P.W.2 himself would depose that Krishnasamy and the testator were having cordial relationship with each other.
38. As such, unexplained disinheritance of the testator's brother in this case, is fatal and both the Courts below considered those facts and decided the lis justly. In such a case, I am of the considered view that all the substantial questions of law should be answered in favour of the defendant and as against the plaintiff as under:
(i) The Substantial Question of Law No.1 is answered to the effect that the judgment and decree of the Courts below are not perverse in rejecting Ex.A.3.
(ii) The Substantial Question of Law No.2 is answered to the effect that both the Courts below were justified in disregarding the Will - Ex.A.3 in view of the suspicious circumstances namely, (i) participation of the beneficiary -
the plaintiff - Perumal in bringing about the Will and (ii) the disinheritance of testator's brother without sufficient cause.
(iii) The Substantial Question of Law No.3 is answered to the effect that there is no perversity or illegality in the judgments of both the Courts below.
(iv) The Substantial Question of Law No.4 is answered to the effect that both the Courts below were justified in disbelieving P.W.2.
39. Accordingly, all the substantial questions of law are answered in favour of the defendant and as against the plaintiff and no interference is warranted in the judgments of both the Courts below.
40. On balance, the second appeal is dismissed, confirming the judgment and decree dated 23.10.2007 made in A.S.No.93 of 2006 on the file of the Sub Court, Ambasamudram, in confirming the judgment and decree dated 24.10.2005 made in O.S.No.276 of 2002 on the file of the Additional District Munsif Court, Ambasamudram. Consequently, the connected Miscellaneous Petition is dismissed. No costs.
rsb To
1.The Sub Court, Ambasamudram.
2.The Additional District Munsif Court, Ambasamudram.