Madras High Court
J.Rani vs G.Manoharan on 6 April, 2018
Author: S.S.Sundar
Bench: S.S.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.04.2018
Reserved on: 22.03.2018
Delivered on: 06.04.2018
CORAM
THE Hon'ble MR.JUSTICE S.S.SUNDAR
Appeal Suit (MD) No.285 of 2009
J.Rani : Appellant / Plaintiff
-Vs-
1.G.Manoharan
2.G.Banumathi
3.G.Kalki
4.G.Saravanan : Respondents / Defendants
Prayer: Appeal Suit filed under Section 96 of Civil Procedure Code, against
the Judgement and Decree passed in O.S.No.17 of 2004 on the file of
Additional District Court (Fast Track Court), Thanjavur, dated 25.08.2009.
For Appellant : Mr.M.P.Senthil
For Respondents 2&4: Mr.P.Ganapathi Subramanian
For Respondent 3 : No appearance
:JUDGMENT
This First Appeal has been preferred by the plaintiff in O.S.No.17 of 2004 on the file of the Additional District Judge (Fast Track Court), Thanjavur, as against the judgment and decree dismissing the suit.
2.The appellant filed the suit in O.S.No.17 of 2004 on the file of the Additional District Court (Fast Track Court), Thanjavur, for partition and separate possession of her 1/5 share in the suit 'A', 'B' and 'C' schedule properties.
3.The suit 'A' schedule property is a house site and house bearing Door No.8A in Kumbakonam Town, Thanjavur District. The suit 'B' schedule properties are the movable properties and 'C' schedule property is again a land and house bearing Door No.9 stated to have been located adjacent to the suit 'A' schedule house.
4.It is the case of the plaintiff that the suit 'A' schedule property was purchased by her father Thiru.Gopal in the name of her mother Tmt.G.Sulochana. It is further stated that the property was purchased for the benefit of the family. It is also the case of the plaintiff that her mother had no independent source of income to purchase the property in the year 1980 as she was only a house wife. It is further stated that the property was enjoyed as a joint family property of all the members. It is also stated in the plaint that the father of plaintiff was doing milk business apart from having a brass welding workshop. It is the case of the plaintiff that her mother Tmt.G.Sulochana died intestate on 08.01.1998 and that during the life time of her father, the plaintiff and her elder sister namely second defendant got married. It is also the case of the plaintiff that the first defendant, the elder brother of the plaintiff was looking after the properties and that he is living in the suit 'A' schedule property along with his family and getting rent from the tenants after the life time of plaintiff's mother. Since the first defendant did not come forward to make proper partition, it is stated that the plaintiff issued a notice through her counsel on 05.07.2001 demanding partition.
5.The first defendant in the suit filed a written statement. However, it is stated that the said statement is also adopted by the second and fourth defendant even though defendants 2 and 4 are not signatories to the written statement. In the written statement of first defendant, he disputed the right of plaintiff to seek partition by stating that suit 'A' schedule property was purchased in the name of his mother out of his own money. It is further stated that the father had no independent source of income to purchase the property. It is the specific case of the defendant that father was conducting only a welding workshop and he was earning only wages. It is also the case of the first defendant that his father incurred heavy loss in the said business.
6.The first defendant further stated that his mother voluntarily executed a Will in favour of the first defendant before her death and that the said Will was acted upon after the death of his mother. It is pertinent to mention that in the written statement of first defendant, it is specifically stated that the first defendant and other defendants are entitled to 1/5 share in the family house bearing Door No.9 which is located in TS No.1620. Since the said house is not included originally in the plaint, it was contended by the first defendant that the suit is not maintainable. Though the first defendant claimed exclusive title to the suit 'A' schedule property, the suit was contested by the first defendant not only for himself but also for other defendants.
7.The trial Court dismissed the suit in entirety even though there was candid admission in the written statement with regard to the existence of 'C' schedule house. Holding that the Will alleged to have been executed by the mother under Ex.B9 dated 17.11.1997 is proved in accordance with law, the trial Court dismissed the suit. The trial Court also rendered a finding that the first defendant has proved that the suit 'A' schedule property was purchased by the first defendant in the name of his mother Tmt.G.Sulochana relying upon the document Exs.B1, B3 to B8 and B10. Aggrieved by the judgment and decree of the trial Court, the plaintiff has preferred the above appeal.
8.Going by the pleadings of the respective parties and the issues framed by the lower Court, it is necessary for this Court to frame the following issues / points for determination:
(a) Whether the suit property is the property purchased by the father of plaintiff in the name of her mother for the benefit of the family?
(b) Whether the suit 'A' schedule property is the property purchased by the first defendant in the name of his mother Tmt.G.Sulochana?
(c) Whether the Will under Ex.B9, dated 17.11.1997 is proved in accordance with law?
(d) Whether the plaintiff is entitled to seek partition in respect of 'B' and 'C' schedule?
9.The plaintiff / appellant also filed C.M.P.(MD)No.1742 of 2018 in A.S.No.285 of 2009 to receive a sale deed dated 19.04.2010 and a registered consent deed dated 27.09.2011 as additional documents. The first document is a registered sale deed executed by the first defendant in favour of one K.Venkatraman in respect of suit 'A' schedule property. The sale deed has been executed during the pendency of this appeal. The second document is a registered consent deed appears to have been executed by the defendants 2 to 4 in the suit in favour of the purchaser of the property under the first document. In these two documents, the recitals would indicate that the suit 'A' schedule property was purchased by mother G.Sulochana out of her own funds on 25.09.1980 and that the same was bequeathed in favour of the first defendant under the Will dated 17.11.1997. Similar recitals are also found in the second document namely consent deed executed by the defendants 2 to 4 in the suit. Relying upon these documents, it is submitted that the contention of the first defendant that the property was purchased out of his money and the recitals in Ex.B9 Will in the same line are false. According to the learned counsel appearing for the appellant, these additional documents are relevant and important to disprove the case of the first defendant with regard to the genuineness of the Will and source for purchasing the suit 'A' schedule property.
10.The petition along with the documents were presented before this Court only on 21.02.2018. Though this Court is able to see that these documents are relevant for deciding the appeal, having regard to the documents and evidence, which are available on record, this Court intends to proceed to dispose of this appeal without reference to the additional documents to avoid further delay.
11.The learned counsel appearing for the appellant submitted that the trial Court failed to take note of the suspicious circumstances before holding that the Will is proved. Since the plaintiff's claim with regard to 'C' schedule is admitted even in the written statement, it is contended that the trial Court has erroneously held that the plaintiff is not entitled to seek partition in respect of 'C' schedule. It is further contended by the learned counsel for appellant that the witnesses examined on behalf of the first defendant to prove the Will has given evidence not to corroborate but to contradict each other on material facts and that therefore, the trial Court ought not to have believed the evidence of D.W.2 and D.W.3 regarding the Will. The learned counsel for the appellant pointed out certain crucial facts and circumstances to disbelieve the Will under Ex.B9. They are as follows:
(a) In the Chief Examination of D.W.2, he has stated that the Will was executed at the house of the document writer, namely, one Alagiri Samy. In the further cross examination of D.W.2, the deponent has conversely stated that the Will was executed in the house of the testator.
(b) During the cross examination of D.W.2, he has stated that a draft Will was prepared initially and then the Will under Ex.B9 was written by the document writer. Whereas the second attesting witness who was examined as D.W.3 in his cross examination has deposed that the Will was written directly without any draft being made.
(c) The signature of the testator in the first page of the Will is different from the signature in second page of the Will Ex.B9. In the second page of the Will, the signature of Tmt.G.Sulochana is more shaky and it is not similar to the signature of G.Sulochana found in the first page of Ex.B9.
(d) No other document containing the signature of the testator is produced before the Court so as to enable the Court to compare the signature.
Though the issue is with regard to the genuineness of the Will and the plaintiff specifically denied the execution of the Will by her mother Tmt.G.Sulochana, no steps have been taken by the first defendant to prove the Will by getting expert's opinion.
(e) Though it is stated that the Will was prepared by hiring a document writer, the Will has been prepared in a normal A4 sheet paper in stead of stamp paper or green sheet which is normally used for preparing any document or receipt or Will.
(f) Though first defendant has contended that the suit 'A' schedule property was purchased out of the funds provided by him, the sale consideration for Ex.A1 dated 25.08.1980 is a sum of Rs.20,000/- and that the first defendant has admitted that the bank account under Ex.B1 shows that he had only a sum of Rs.251/- to his credit at the time when the document Ex.A1 was obtained. When it is admitted that the first defendant was aged 26 years and that he was all along engaged as a labour, the contention that he purchased the property in the name of his mother is unbelievable. However, contrary to the fact established by evidence Ex.B9 Will shows that the testator has stated in the Will that the property conveyed under the document Ex.B9 was acquired out of the funds provided by the first defendant in the name of testator. Since the disposition under Ex.B9 is unnatural the Will has been written in such a fashion only to justify the exclusion of unmarried children of the testator from inheritance.
(g) Though the Will was attested by the fourth defendant in the suit, he was not examined. Yet another witness who has signed in the second page and the scribe has not examined.
(h) The hand writing in the first page and in the last page are totally different and the scribe is not the author to prepare the entire Will.
(i) Between 1997 and the reply notice, there is no document to indicate that the first defendant claimed right under the Will Ex.B9. Even after the death of the testator, the tax receipts produced by the first defendant shows that the suit 'A' schedule property stands in the name of testator.
12.The learned counsel for the appellant also made his submissions with regard to the genuineness of the Will by referring to the additional documents which are sought to be marked in this appeal. Since this Court is not inclined to entertain the application to avoid further delay, the submission of the learned counsel for the appellant relying upon the additional document is not considered by this Court. In view of the fact that suit 'A' schedule house is the only property of testator, exclusion of two unmarried children is focussed mainly as a suspicious circumstance by the Counsel for appellant.
13.The learned counsel for the appellant relied upon a judgment of the Hon'ble Supreme Court in the case of Niranjan Umeshchandra Joshi v. Mridula Jyoti Rao and others reported in 2007 (2) CTC 172. In the said judgment, the Hon'ble Supreme Court has categorically held that the onus would be on the propounder to remove the suspicion by leading sufficient and cogent evidence if there exists any. Paragraphs 32 to 36 of the said judgment are relevant and hence, they are extracted as follows:
?32.The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai Shedage (2002) 2 SCC 85 and Sridevi & Ors. v. Jayaraja Shetty & Ors. (2005) 8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.
33.There are several circumstances which would have been held to be described by this Court as suspicious circumstances :-
(i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will;
(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit.
[See H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors., AIR 1959 SC 443 and Management Committee T.K. Ghosh's Academy v. T.C. Palit & Ors. AIR 1974 SC 1495]
34.We may not delve deep into the decisions cited at the Bar as the question has recently been considered by this Court in B. Venkatamuni v. C.J. Ayodhya Ram Singh & Ors. [2006 (11) SCALE 148], wherein this Court has held that the court must satisfy its conscience as regards due execution of the Will by the testator and the court would not refuse to probe deeper into the matter only because the signature of the propounder on the Will is otherwise proved.
35.The proof a Will is required not as a ground of reading the document but to afford the judge reasonable assurance of it as being what it purports to be.
36.We may, however, hasten to add that there exists a distinction where suspicions are well founded and the cases where there are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is demanded from the judge even there exist circumstances of grave suspicion. [See Venkatachala Iyengar (supra)]?
14.The learned counsel for the appellant further relied upon the judgment of Hon'ble Supreme Court in the case of B.Venkatamuni v. C.J.Ayodhya Ram Singh and others reported in AIR 2007 SC 311. The Hon'ble Supreme Court has quoted with approval several judgments of Supreme Court earlier in the following manner:
?15.It is, however, well settled that compliance of statutory requirements itself is not sufficient as would appear from the discussions hereinafter made.
16.The approach of the Division Bench of the High Court did not address itself the right question. It took an erroneous approach to the issue as would appear from the decision of this Court in Surendra Pal & Ors. vs. Dr. (Mrs.) Saraswati Arora & Anr. [(1974) 2 SCC 600], whereupon again Mr. V. Balachandran himself placed reliance, wherein the law was stated in the following terms :
"The propounder has to show that the Will was signed by the testator; that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the Will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the Will are not the result of the testator's free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the Will is accepted. Again in cases where the propounder has himself taken a prominent part in the execution of the Will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the court that has to be satisfied, as such the nature and qualify of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in relevant circumstances of the case, entertain."
17.In H. Venkatachala Iyengar vs. B.N. Thimmajamma & Ors. [(1959) Supp.1 SCR 426, it was opined :
"However, there is one important feature which distinguishes wills from other documents. 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 just indicated. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case 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 caveators; 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."
18.In Smt. Guro vs. Atma Singh & Ors. [(1992) 2 SCR 30], this Court has opined :
"With regard to proof of a will, the law is well- settled that the mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement prescribed in the case of a will by section 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by law is sufficient to discharge the onus. Where, however there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the will could be accepted as genuine. Such suspicious circumstances may be a shaky signature, a feeble mind and unfair and unjust disposal of property or the propounder himself taking a leader part in the making of the will under which he receives a substantial benefit. The presence of suspicious circumstances makes the initial onus heavier and the propounder must remove all legitimate suspicion before the document can be accepted as the last will of the testator."
19.Yet again Section 68 of the Indian Evidence Act postulates the mode and manner in which proof of execution of document required by law to be attested stating that the execution must be proved by at least one attesting witness, if an attesting witness is alive and subject to the process of the Court and capable of giving evidence.
20.This Court in Daulat Ram & Ors. vs. Sodha & Ors. [(2005) 1 SCC 40], stated the law thus :
"Will being a document has to be proved by primary evidence except where the court permits a document to be proved by leading secondary evidence. Since it is required to be attested, as provided in Section 68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the attesting witnesses 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. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925. In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the Will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so." [Emphasis supplied]
15.After referring to all the judgments, the Hon'ble Supreme Court has commented the judgment of the Division Bench of High Court of Andhra Pradesh by stating that the Division Bench of Andhra Pradesh High Court was entirely wrong in proceeding on the premise that compliance of legal formalities as regards proof of the Will would subserve the purpose and the suspicious circumstances surrounding the execution thereof is not of much significance. The learned counsel for the appellant relied upon yet another judgment of the Hon'ble Supreme Court in the case of K.Laxmanan v. Thekkayil Padmini and others reported in 2008 (6) CTC 92 wherein it has been held as follows:
?20.Strong reliance was placed on this provision also by the learned counsel appearing for the parties. A bare reading of the aforesaid provision will make it crystal clear that so far as a Deed of Will is concerned, the position in law is no longer in doubt for the onus of proving the Will is on the propounder. The propounder has to prove the legality of the execution and genuineness of the said Will by proving absence of suspicious circumstances surrounding the said Will and also by proving the testamentary capacity and the signature of the testator. Once the same is proved, it could be said that the propounder has discharged the onus.
21.When there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the Court and only when such responsibility is discharged, the Court would accept the Will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the Court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. In such a case, the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. The aforesaid view is taken by us in consonance with the decision of this Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee [AIR 1964 SC 529] and Pushpavathi v. Chandraraja Kadamba [(1973) 3 SCC 291].?
15(a).Relying upon the said judgment, learned counsel appearing for the appellant submitted that the trial Court in this case upheld the Will ignoring the suspicious circumstances, namely, the shaky signature, the preparation of the Will by hiring a document writer in an ordinary A4 sheet paper and the unnatural disposition excluding the two unmarried children. The learned counsel further submitted that it is incredible to believe the case of first defendant that the suit property was purchased out of the money provided by him especially when the property was purchased in 1980 when the first defendant was 26 years old and he was employed as a daily wager doing some menial job. It was pointed out that the trial Court based on the finding that the plaintiff failed to prove her case that the property was purchased out of the funds provided by the father, readily accepted the case of first defendant without considering the evidence in a proper perspective.
16.As against the submissions made by the learned counsel appearing for the appellant, the learned counsel appearing for the respondents relied upon the evidence of P.W.1 the plaintiff to show that the plaintiff has admitted regarding the discharge of a mortgage loan by the first defendant and about the fact that she did not pay any amount for redeeming the mortgage. He also relied upon the portion of evidence of P.W.1 in which she admits that her mother had no source of income for purchasing the suit 'A' schedule property. The plaintiff has also admitted in the course of evidence that her mother used to sign and that she has not seen her signature. Hence, it is suggested that the plaintiff is not competent to speak about the genuineness of the signature found in the document Ex.B9. It is also submitted by the learned counsel for the respondents that the plaintiff has not disputed the sound disposing state of mind of the testator at the time of executing the Will. It is also suggested that there is no enmity between the plaintiff and the other witnesses who were examined on the side of the defendants. It is further pointed out that the plaintiff in the plaint has simply denied the execution of the Will. Since the plaintiff has not filed any reply statement about the forgery of Will, the Court can infer that the plaintiff has admitted the genuineness of the Will. With regard to the discrepancies found in the evidence of D.W.2 and D.W.3, it was submitted by the learned counsel for the respondents that the execution of the Will has been proved in accordance with the provisions of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. With regard to the variation of the signature found in Ex.B9, it is contended by the learned counsel for the respondents that there is neither pleading nor evidence on this. The learned counsel for the respondents further relied upon the following precedents.
17.In the case of PPK Gopalan Nambiar v. PPK Balakrishnan Nambiar and others reported in JT 1995 (5) SC 163 the Hon'ble Supreme Court has held as follows:
?4. ... Admittedly, the will was executed and registered on 1.11.55 and she died 8 years thereafter in the year 1963. When the appellant had propounded the will in his written statement, nothing prevented either the respondent or any of the contesting defendants to file a rejoinder i.e. additional written statement with leave of the court under Order 8 Rule 9 pleading the invalidity of the will propounded by the appellant, Nothing has been stated in the pleadings. Even in the evidence when the appellant was examined as DW- 1 and his attestator was as DW-2, nothing was stated with regard to the alleged pressure said to have been brought about by the appellant to execute the will. In the cross-examination by the first respondent, no attempt was even made to doubt the correctness of the will.?
18.The learned counsel for the respondent further relied upon the judgment of the Hon'ble Supreme Court in the case of Smt.Indu Bala Bose and others v. Manindra Chandra Bose and another reported in (1982) 1 SCC 20 wherein it has been held as follows:
?7. This Court has held that the mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a will by Section 63 of the Successions Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the disposition made in the will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. (See AIR 1964 SC 529, [1959] Suppl. 1 SCR 426 & [1962]3 SCR 195).?
19.The learned counsel for the appellant submitted that the Will can be proved like any other document and that the burden of proof will shift to the person who pleads that the Will is forged. He relied upon a judgment of the Hon'ble Supreme Court in the case of Daulat Ram and others v. Sodha and others reported in AIR 2005 SC 233 wherein it has been held as follows:
?10.Will being a document has to be proved by primary evidence except where the Court permits a document to be proved by leading secondary evidence. Since it is required to be attested, as provided in Section 68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the attesting witnesses 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. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925. In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so.?
20.The learned counsel appearing for the respondents lastly relied upon a judgment of the learned Single Judge of this Court in the case of K.A.Alice v. K.A.Mary (Deceased) and others reported in 2017 (3) MWN (Civil) 302 wherein it has been held as follows:
?11. The next contention raised by the learned Senior Counsel for the defendants is that there was no reason for the testator to disinherit the other heirs and bequeath the property only in favour of the plaintiff. It has been time and again held that a will has to be executed only to alter the mode of succession and by the very nature of things it is bound to result in either reducing the share or depriving the share of the natural heir. If the testator intended to benefit all the heirs as per the law of succession, there is no necessity at all to execute a will. Therefore, if the will is written in favour only one of the heirs, who happens to be the propounder of the same, the burden is on the propounder of the will to remove all the suspicious circumstances. The suspicion means not the fact that the natural heirs have been excluded or lesser share has been given to them. The duty of the propounder of the will is to remove all the suspicious circumstances, only when there are real, germane and valid suspicious circumstances in the given situation. In the case on hand, merely because the plaintiff was given the property in exclusion of others, cannot be held to be suspicious circumstances. As stated earlier, the burden is on the plaintiff to establish the said ground.?
21.Citing the judgments relied upon by the respondents, the learned counsel appearing for the respondents submitted that the trial Court in this case has considered all the points which were raised by the learned counsel for the appellant in this Court and arrived at findings to the effect that the Will has been proved in accordance with law removing all the suspicious circumstances. It was further stated that there was no compelling reasons or circumstances to reverse the findings of the trial Court in this case.
22.This Court considered the arguments advanced on both sides. In this case, the trial Court has rendered a finding that the plaintiff has not proved that the suit property was purchased by her father in the name of her mother. It is also the case of plaintiff that the mother had no independent income to purchase the property. From this, it cannot be deduced that the property must have been purchased in the name of mother out of the funds provided by first defendant. The plaintiff will not loose her share even if she is not able to prove the source for purchasing the suit property as she is still a heir to succeed to the estate of mother in the absence of Will. However, the suspicious circumstance because of the unnatural disposition can be removed only if the first defendant prove that the property was purchased in 1980 out of his funds in the name of his mother. Why the first defendant should purchase a property in the name of his mother. No attempt to offer any explanation. The burden lies on the first defendant to prove his case particularly in the present context where this crucial plea is required to be established to remove the suspicion. Hence, the burden lies on the first defendant to prove that the property was purchased out of his funds. A person who seeks to displace the natural succession to property by an event, the burden lies on him by proving the same beyond doubt. The trial Court misplaced the burden of proof and hence, the findings of trial Court on this issue vitiate the judgment. It is to be noted that the testator purchased the property under Ex.A1 in the year 1980. The first defendant has admitted in evidence that he was working in a medical shop in the year 1970. The bank pass book produced by the first defendant shows that his bank account leads to the inference that the first defendant's financial position was very poor and that it is not possible for him to mobilise the funds for purchasing the suit 'A' schedule property for a sum of Rs.20,000/- in the year 1980. The further case of the first defendant during evidence that he was doing milk business and that he was having ten numbers of cows may not be relevant as the milk business was several years after the purchase under Ex.A1. The document filed by the first defendant at best will disclose that he was selling milk only from 1992. During the life time of father, the first defendant was only working as a salesman in a medical shop or doing some menial job. It is not in dispute that the father was doing some business in brass welding. The first defendant admits that he was also doing the same business in brass welding. It must be after the life time of the father and there is no evidence to show that the first defendant was doing some business in 1980. The first defendant is at present working in a hotel. His annual income even according to Ex.B10, in 2001 is only Rs.12,000/-. Hence, at no stretch of imagination, it can be presumed or accepted that the first defendant would have paid Rs.20,000/- to acquire the suit property in the year 1980 especially when there is no evidence let in to show that he was doing some business. No other defendant is examined to prove the case of the first defendant. From the entire evidence, this Court is fully convinced that the contention of the first defendant that the suit 'A' schedule property was purchased by him in the name of his mother is not proved and this Court does not accept the case of the first defendant regarding the source for purchasing the property under Ex.A1. The contents of Ex.B9 is therefore contrary to the fact that is now established. Ex.B9 ? Will contains the recitals as if the property was purchased in the name of testator out of the money provided by the first defendant. It is also stated in the Will that the marriages for the two daughters of the testator were conducted by the first defendant in a grand manner. It is admitted in this case that the marriage of plaintiff and another daughters were conducted when the father was alive. However, there is no independent evidence in this case to prove the income of the first defendant so as to meet the marriage expenses for his two sisters. Even the learned counsel appearing for the respondents could not give any explanation or point out any evidence to prove the contents of the document Ex.B9. In such circumstances, this Court is unable to believe that the testator is the author of the contents of Ex.B9- Will. The disposition of the Will under Ex.B9 is unnatural. The testator has executed the Will at the time when two of her children are not married. One of her daughters was yet to be married. The first defendant admits that his children are married. When the first defendant is settled in life and there is another son and daughter who are unmarried, it is unnatural to bequeath the only property available for the testator in favour of the first defendant the eldest son. The Will does not carry any wish by the testator or any hope by the testator so that the first defendant is morally required to extend his assistance either for the marriage or for the settlement of the unmarried children of the testator. This unnatural disposition is one of the suspicious circumstance which cannot be ignored. Absolutely, there is no explanation either in the Will Ex.B9 or in the whole evidence of D.W.1 for this unnatural disposition. The probable explanation that the property was purchased out of the funds provided by him is already disbelieved by this Court. The recitals are therefore contrary to facts and this leads to a further conclusion that the testator is not the author of the Will Ex.B9. Hence, the suspicious circumstance in this case is not explained and the cloud is not removed. As it has been expressed by the Hon'ble Supreme Court, the onus is on the propounder of the Will to remove the suspicion by leading sufficient and cogent evidence. Despite the suspicious circumstance by this unnatural disposition, no attempt is made by the first defendant to remove the suspicion by independent evidence.
23.Apart from the suspicious circumstances, even with regard to the proof of execution of the Will, the following facts cannot be ignored:
(a) The Will has been executed in a A4 sheet even though the propounder was able to hire a document writer to prepare the Will.
(b) Signatures found in the first page of the document Ex.B9 is not similar to the signature found in the second page. The signature in the second page is more shaky and there are several distinct features to differentiate the signatures. Each letter in the signature of Tmt.G.Sulochana is different.
(c) The angles of each of the letter in the signatures in page 1 and 2 are not same. The size of the letter are not identical.
24.Apart from the discrepancies pointed out by the learned counsel for the appellant in the evidence of D.W.2 and D.W.3, this Court is also able to find that the Will is prepared in 3 pages. The contents of the document and the signature of the testator found in two pages. In the third page of the Will, two other attesting witnesses and the signature of the scribe is found. It is not known why five persons have attested the document Ex.B9. Taking into consideration the over all circumstances pointed out above, this Court is unable to subscribe to the views expressed by the trial Court with regard to the genuineness of the Will and the proof. Merely because of two attesting witnesses have been examined to prove the due execution of the Will, that does not mean that the first defendant has discharged his burden to remove all doubts and explain the suspicious circumstances to the satisfaction of this Court. As it has been held by the Hon'ble Supreme Court, when suspicious circumstance exists, it is the duty of the propounder of the Will to remove the suspicion by sufficient and cogent evidence. When circumstance gives rise to doubts, it is for the propounder to satisfy the conscience of the Court. Having regard to the legitimate suspicion that exists in this case, the first defendant has failed to remove those suspicious circumstances to accept the document Ex.B9 as a genuine Will of the mother of first defendant. Having regard to the circumstances pointed out above, this Court has no hesitation to hold that the first defendant is not entitled to exclusive right on the basis of the Will under Ex.B9 alleged to have been executed by the mother Tmt.G.Sulochana in favour of the first defendant. Hence, the plaintiff is entitled to 1/5 share in the suit 'A' schedule property. With regard to 'B' schedule property, the plaintiff has not let in any evidence to show their existence hence, this Court confirms the findings of the trial Court as regards 'B' schedule and hold that the plaintiff has not proved that the movable items described in suit 'B' schedule are available for partition.
25.The trial Court has held in favour of the first defendant because of the fact that the plaintiff's case is not supported by other defendants and that other defendants do not support the case of the plaintiff. In a suit for partition, some of the defendants may take a plea which may also be detriment to their interest. There is a possibility of collusion by reason of some secrete arrangements or some arrangement or a settlement among those for extraneous reasons. It is relevant to point out that none of the defendants 2 to 4 entered the witness box to speak. The truth or otherwise of the plaintiff's case cannot be always tested based on the silence of other co-owners.
26.The specific stand taken by the first defendant in the written statement admitting the existence of suit 'C' schedule property cannot be ignored. In the written statement, it is stated that the suit for partition itself is not maintainable, in view of the non-inclusion of the suit 'C' schedule property. However, when 'C' schedule property was included in the plaint a peculiar stand was taken by the first defendant that the property described in 'C' schedule is the property of temple and that it is not available for partition. The first defendant admits the existence of the superstructure and the fact that this was constructed by the father. In such circumstances, the plaintiff's right to seek partition in respect of 'C' schedule property cannot be disputed. In 'C' schedule property there is a building and it is not a vacant land as on date. It is also admitted that the first defendant / first respondent in this appeal is enjoying the said property. The plaintiff's right to her legitimate 1/5 share in respect of possessory right in respect of the land as well as the ownership right over the superstructure put up therein cannot be denied and hence, the judgment of the trial Court is also liable to be set aside with regard to 'C' schedule. Hence, this Appeal is allowed and the plaintiff is entitled to a preliminary decree for partition in respect of 1/5 share in 'A' and 'C' schedule property. The plaintiff is not entitled to any relief in respect of suit 'B' schedule. The suit in O.S.No.17 of 2004 on the file of the Additional District Court, Thanjavur, is therefore decreed in respect of 'A' and 'C' schedule and the suit in respect of 'B' schedule is dismissed. Having regard to the relationship between the parties, there is no order as to costs. Consequently, C.M.P.(MD)No.1742 of 2018 is closed.
To
1.The Additional District Court, Thanjavur.
2.The Record Keeper, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
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