Madras High Court
Mariammal vs P.Indirani on 30 November, 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated.: 30.11.2009
CORAM:
THE HONOURABLE MR. JUSTICE M.JEYAPAUL
Second Appeal No.948 of 1995
1. Mariammal
2. Sakthivel .. Appellants
-Vs-
1. P.Indirani
2. P.Velumyle
3. P.Manomani
4. P.Bhuvaneswari
5. Vijayalakshmi
6. The Manager,
Bank of Baroda,
State Bank of Road,
Coimbatore-18. .. Respondents
APPEAL filed under Section 100 of Code of Civil Procedure against the judgment and decree, dated 21.11.1994 made in A.S.No.234 of 1993 on the file of the District Judge, Coimbatore, reversing the judgment and decree dated 7.9.1993 made in O.S.No.299 of 1993 on the file of the Subordinate Court, Tiruppur.
For Appellants : Mrs.Pushpa Sathyanarayanan
for T.R.Rajaraman
For 1st Respondent : Mr.S.Parthasarathy, Senior Counsel
for M/s.Sarvabhauman Associates
For respondents 2 to 7 : No appearance.
- - -
J U D G M E N T
The 1st and 2nd defendants have preferred the present appeal. The 1st defendant had passed away. Her legal heirs are already on record.
2. The suit is filed for partition and separate possession of 1/7th share in 'A' and 'B' Schedule properties and also for rendition of accounts by the defendants 1 to 3.
3. The plaintiffs and defendants 3 to 6 are the daughters and the 2nd defendant is the son of the 1st defendant Mariyammal and late P.P.Palanisamy Nadar.
4. The Plaintiff would contend that P.P.Palanisamy Nadar died intestate on 26.1.1986 at Coimbatore Medical College Hospital, Coimbatore. The properties described in 'A' and 'B' Schedules were self-acquired properties of the deceased P.P.Palanisamy Nadar. The plaintiff and the defendants 1 to 6 are in the joint possession of the same. Each of them is entitled to 1/7th share therein. The defendants 1 to 3 are in management of the suit properties for and on behalf of the defendants 1 to 6 and the plaintiff. The 'B' schedule property is the amount in Savings Bank Account in the name of P.P.Palanisamy Nadar lying in Bank of Baroda, Coimbatore who has been shown as 7th defendant. The plaintiff has claimed 1/7th share in the 'A' and 'B' Schedule properties.
5. The 1st and 2nd defendants filed written statements. The defendants 3 to 6 adopted the written statement of the 1st defendant. They have contended in their written statements that though the properties are separate and self-acquired properties of P.P.Palanisamy Nadar, he executed a Will dated 23.5.1983 bequeathing the life estate in favour of the 1st defendant and absolute ownership in favour of the 2nd defendant. The 2nd defendant was let in possession of the suit property as per the lease arrangement he had with his father P.P.Palanisamy Nadar. The plaintiff and her husband were fully aware of the execution of the Will. Suppressing the lease in favour of the 2nd defendant and the Will in existence, the present suit has been filed. As far as the 'B' schedule deposit is concerned, it was absolutely given to the 1st defendant with a direction to perform the marriage of the 6th defendant. Alleging that the plaintiff is not entitled to 1/7th share as claimed, the defendants 1 to 6 pray for dismissal of the suit.
6. In the reply statement filed by the plaintiff, it has been contended that the 2nd defendant was not a cultivating tenant of the suit properties and that the Will alleged to have been executed by P.P.Palanisamy Nadar was a forged and a fabricated one.
7. The trial court having adverted to the evidence on record arrived at a decision that the Will Ex.B.6 was validly executed by P.P.Palanisamy Nadar, bequeathing the life estate in favour of the 1st defendant and the absolute ownership in favour of the 2nd defendant. The trial court also held that as per the lease arrangement between the 2nd defendant and his father P.P.Palanisamy Nadar, the 2nd defendant was inducted into the possession of the 'A' schedule property. Therefore, the trial court was pleased to dismiss the suit with respect to the 'A' schedule property and granted relief with respect to 'B' schedule property.
8. Neither the 1st defendant nor the 2nd defendant took up the matter in appeal aggrieved by the share allotted to the plaintiff and the defendants 1 to 6 with respect to the 'B' schedule property.
9. Aggrieved by the dismissal of the suit with respect to the 'A' schedule property, the plaintiff took up the matter in First Appeal. The First Appellate Court observed that the suspicious circumstances surrounding the Will Ex.B.6 were not properly explained by the 1st and the 2nd defendants. It also observed that the allegation of forgery and fabrication made by the plaintiff was not established by the defendants 1 and 2. The testators would have preferred execution of a deed of settlement instead of execution of a Will inasmuch as the 2nd defendant was already inducted into possession of the 'A' schedule property as a lessee. The relationship of landlord and tenant set up by the 2nd defendant with his father appears to be quite unnatural and improbable. The First Appellate Court having compared the signature of the testators found in Ex.B.5 with that of Ex.B.3 and Ex.B.4 arrived at a decision that the testators signature found in Ex.B.5 did not tally with the signatures of the testators found in Ex.B.3 and Ex.B.4. P.P.Palanisamy Nadar, who had already engaged an Advocate to give a legal notice in the year 1967 would have definitely gone in for the registration of the Will if at all he had executed any Will. Referring to the evidence of the attesters D.W.4 to D.W.6, the First Appellate Court observed that D.W.4 and D.W.5 were close relatives of the 1st defendant and D.W.6 was a close friend of P.P.Palanisamy Nadar. The participation of the 2nd defendant in the execution of Will gives rise to suspicion, it has been observed. The 1st Appellate Court having commented that the trial court had chosen to give importance to the quantity of evidence rather than the quality of evidence disbelieved the execution of the Will Ex.B.6.
10. While admitting the Second Appeal, the following substantial question of law was formulated by this Court:
"Whether the judgment of the lower Appellate Court is vitiated by its failure to consider the entire evidence on record and to apply the correct principles of law."
11. The learned counsel appearing for the 2nd defendant would submit that the lower Appellate Court having found that cogent evidence was let in through D.W.1 and D.W.4 to D.W.6 with respect to the execution of the Will has disbelieved the Will executed by P.P.Palanisamy Nadar. No motive was attributed either to D.W.4, the brother-in-law of the testators or D.W.5, the son-in-law of the family. The integrity of D.W.6, the family friend of P.P.Palanisamy Nadar was not under challenge. There was no reason for the defendants 3 to 6 to support the case of the Defendants 1 and 2 if at all there was no execution of Will by P.P.Palanisamy Nadar. It is her further submission that in all Wills there would be disinheritance. As the 2nd defendant was the only son of the testator, the latter had chosen to bequeath the property in favour of his son disinheriting his daughters. It is her further submission that there is virtually no suspicious circumstance surrounding the execution of the Will. Therefore, she would submit that the judgment of the First Appellate Court calls for interference.
12. Learned counsel appearing for the respondent/plaintiff would submit that the findings factually rendered by the first appellate court cannot be upset by this court unless it is found to be perverse. Inasmuch as the first appellate court has given cogent reasons for setting aside the findings of the Trial Court, this court should be hesitant to interfere with the judgment of the first appellate court. The evidence on record would go to show that the Will, Ex.B6 is not the last Will inasmuch as the witnesses have spoken to the fact that the testator was toying with an idea to give the houses in the name of his wife, who is the first defendant herein, to his five daughters. No strong reason was given in the Will to disinherit the natural heirs. The second defendant, who was a college student during 1980-83, has come out with a plea that he was inducted as a lessee to the suit property by his father in order to give a colour of reality to the Will, Ex.B6. The second defendant has come out with a plea that he was already inducted in his capacity as a lessee by his father. DW1 has categorically stated that her husband tilled the lands and did direct cultivation till his death. DW1 and DW2 have come out with a different story from that of the content of the Will that the Testator proposed to allot the houses of the first defendant to his daughters. DW1 speaks about a Will which contains a clause that the Testator proposed to give the property of the first defendant to his daughters, but, not the subject Will, Ex.B6 projected by the second defendant. DW2 has admitted that a road is running in between the property measuring 5 acres dividing the property equally. Therefore, division of the property would not be difficult as recited in the Will. The court will have to hold that the second defendant participated in the execution of the Will inasmuch as he speaks about the intention of the Testator at the time of execution of the Will. The very fact that the second defendant failed to produce the Will alongwith the written statement would go to show that the unregistered Will was fabricated and long subsequent to the filing of the suit, the same was registered to suit the convenience of the second defendant. It is his last submission that the first appellate court has rightly applied the principles of law governing the attestation and execution of the Will. There is no necessity to interfere with the well considered judgment of the first appellate court, he would submit.
13. The second appellate court will not normally interfere with the findings of the courts below on facts if it is not found to be perverse. Only in cases where the courts below failed to appreciate the evidence on record, or the correct principles of law have not been properly applied, the second appellate court would definitely interfere with the findings of the courts below and render justice.
14. Learned Senior Counsel appearing for the plaintiff referred to the decision in CHACKO v. MAHADEVAN ((2007) 7 SCC 363) wherein it has been held as follows:-
"6. It may be mentioned that in a first appeal filed under Section 96 CPC, the appellate court can go into questions of fact, whereas in a second appeal filed under Section 100 CPC the High Court cannot interfere with the findings of fact of the first appellate court, and it is confined only to questions of law. Hence, we have to see the judgment of the first appellate court and its findings of fact.
7. A perusal of the judgment of the first appellate court dated 29.6.1998, copy of which is Annexure P-2 to this appeal, shows that it has been recorded therein that Chacko was not having sound mind when he executed Ext.A-3, which is established from Ext.A-4 which is the medical certificate. He was alcoholic psychosis. This is a finding of fact which could not have been interfered with by the High Court in second appeal."
15. That was a case where the dispute as to whether a person was mentally sound or not was decided by the first appellate court based on the medical evidence available on record. Such a concrete finding rendered by the first appellate Court backed by the medical evidence cannot be disturbed by the High Court in the second appeal, it has been observed therein. As already pointed out by this court if there is a perverse approach to the evidence on record which resulted in injustice, the second appellate court has every authority to interfere with the findings of the Trial Court or the first appellate court to set right the wrong. Therefore, the general observation made in the aforesaid decision of the Supreme Court will not apply to the facts and circumstances of this case where the evidence on record which was properly weighed by the Trial Court was simply upset by the first appellate court giving flimsy reasons.
16. The learned counsel appearing for the plaintiff also cited another decision in NARAYANAN RAJENDRAN & ANOTHER v. LEKSHMY SAROJINI & OTHERS (2009-4-LW 125) wherein it has been held as follows:-
"39. In Thiagarajan v. Sri Venugopalaswamy B.Koil [(2004) 5 SCC 762 = 2004-3-LW 452], this court has held that the High Court in its jurisdiction under Section 100 C.P.C. was not justified in interfering with the findings of fact. The court observed that to say the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This court in a catena of decisions held that where findings of fact by the lower appellate court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible.
40. In the same case, this court observed that in a case where special leave petition was filed against a judgment of the High Court interfering with findings of fact of the lower appellate court. This court observed that to say the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This court further observed that the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible."
17. Of course, the second appellate court cannot substitute its view on the ground that another view was possible on reappreciation of evidence on record. As already pointed out by this court, where there was no appreciation of evidence on record which resulted in perverse finding, the second appellate court cannot shut its eyes and meekly accept the wrong finding rendered by the first appellate court.
18. In G.SEKAR v. GEETHA ((2009) 6 SCC 99) it has been held as follows:-
" 56. The question as to whether the Will was validly executed or not is essentially a question of fact. Both the learned Single Judge as also the Division Bench pointed out a large number of prevailing suspicious circumstances to opine that the same had not been validly executed. Let us now briefly consider the question as to whether the execution of the Will has duly been proved.
....
....
....
63. Both the courts below have considered all the essential ingredients of proof of Will viz., preparation of the Will, attestation thereof as also suspicious circumstances surrounding the same. They have arrived at a concurrent finding that the Will was not validly proved. We do not find any reason to differ therewith."
19. That was a case where a concurrent finding was returned both by the Single Judge and by the Division Bench of the High Court with respect to the existence of suspicious circumstances surrounding the subject Will. Therefore, such a concurrent verdict of the Single Judge and the Division Bench was confirmed by the Supreme Court. Here in this case, the Trial Court, weighing the evidence of material attesting witnesses, had returned a finding that the Will was validly executed by the Testator who was in a sound disposing state of mind. But, unfortunately, the said verdict was upset by the first appellate court giving flimsy reasons. Therefore, the aforesaid observation made by the Supreme Court in the said case also would not apply to the facts and circumstances of this case.
20. DW4 is the brother of the first defendant. DW5 is the husband of the fourth defendant. DW6 is a friend of the family of the Testator. They have spoken in one voice without any material contradiction in a very natural way that the Testator first asked the scribe to draft the Will in a white paper and thereafter, having been satisfied with the content of the Will drafted by the scribe in accordance with the instructions given by the Testator, directed the scribe to take a fair copy of the content of the Will. He, having perused the content of the Will, subscribed his signature in the presence of DW4 to DW6 and DW4 to DW6 also subscribed their signature in the presence of the Testator. In other words, the attesting witnesses witnessed the signature put by the Testator having understood the tenor of the Will and the Testator also witnessed the attesting witnesses subscribing their signature to the Will, Ex.B6.
21. The learned Senior Counsel appearing for the plaintiff would attack their evidence on the ground that they have come out with a parrot-like version which is found to be totally unnatural. Such a submission of the learned Senior Counsel appearing for the plaintiff does not persuade this court.
22. As rightly pointed out by the learned counsel appearing for the second defendant, even the first appellate court had made an observation that DW4, DW5 and DW6 have consistently spoken to not only the attestation of the document but also the execution of the same by the testator in a sound disposing state of mind. Having thus observed, the first appellate court, it appears, chose to reject the evidence of D.Ws.4 and 5 as they were related to the first and second defendant and DW6 was a family friend of the first and second defendant.
23. DW4 is related not only to the second defendant, but also to defendants 3 to 6. DW5 is none other than the husband of the fourth defendant. He, being cited as one of the attesting witnesses to Ex.B6 Will, has spoken to the attestation made by the attesting witnesses including himself and the execution made by the Testator in a sound disposing state of mind. If the Will is accepted, the fourth defendant does not get any share in the B schedule property. If at all the Will was fabricated as alleged by the plaintiff, the fourth defendant would not have accepted the plea of the first and second defendant that her father, in fact, executed the Will disinheriting all the daughters including herself. DW5, the husband of the fourth defendant and son-in-law of the family also would not have spoken about his attestation of the Will, Ex.B6 if no such Will was executed by the Testator. Further, as rightly pointed out by the learned Senior Counsel appearing for the second defendant, no enmity was attributed to DW4 or DW5.
24. The evidence of DW6, a family friend of the Testator was not under challenge. The rigorous cross-examination done by the plaintiff could not dilute the evidence given by DW3 with respect to the attestation of the Will and execution thereof by the Testator in a sound disposing state of mind. The evidence of DW6, an independent witness, cannot be simply ignored. As there is no material contradiction in the evidence of DW4, DW5 and DW6, the court of law cannot throw away their evidence on the ground that they have come out with a parrot-like version which is quite natural.
25. The first appellate court embarked upon the exercise of comparing the signature of the Testator found in Exs.B5 to B7 with the signature of the Testator found in Ex.B4. The first appellate court, in fact, has wrongly observed that the signature of the Testator is found in Ex.B3, which is a sale deed in the name of the Testator. It is to be noted that in those days the signature of the purchaser was not obtained in the sale deed. When Ex.B3 does not bear the signature of the Testator, the first appellate court has made an observation as though Ex.B3 bears the signature of the Testator. Therefore, Ex.B3 could not have been compared with Ex.B5 to analyse the admitted signature with that of the disputed signature of the Testator. Though the name of the Testator is found in Ex.B4, there is an observation in Ex.B4 itself that the father P.P. Palanisamy Nadar was not present at the time when the document was taken up for consideration again by the Sub Registrar. Firstly, it has not been established that P.P.Palanisamy Nadar was present and subscribed his signature in Ex.B4. Secondly, the court should be reluctant to compare the disputed signature with that of the admitted signature in the absence of an expert's evidence. Inspite of the fact that the courts are empowered under section 73 of the Indian Evidence Act to independently compare the signature with that of the admitted signature in the face of voluminous evidence available on record to establish the attestation of the document and the execution thereof by the Testator, in a sound disposing state of mind, the first appellate court should not have embarked upon exercise of comparing the disputed signature with that of the admitted signature in the absence of Handwriting Expert's opinion.
26. Ex.B5 is found to be the lease deed executed by the Testator in the year 1980 in favour of his son, the second defendant herein. There is no reason to project the release deed if at all such lease deed was not in existence as the first and second defendant after all trace their title to the Will Ex.B6. It is true that the first defendant has deposed that her husband tilled the land and personally cultivated the same till his death. In the same breadth, she would also state before the court that the suit property was in fact leased out to the second defendant by her husband and her husband did not cultivate the same. Quite probably, the husband would have contributed his labour in order to assist his son.
27. It has been established before the court that the second defendant completed Pre-University Course in the year 1976 and having stopped his studies, he again continued his collegiate education in the year 1980. It is found that the lease deed, Ex.B5 has come into existence a few days prior to the admission of the second defendant to a college in the year 1980. DW2 has categorically deposed that he had an idea to go out of the family in order to lead a separate life. As he is the only son in the family, his father had thought it fit to lease out the suit property to the second defendant in order to retain him in the family. It is quite natural for a person, who stopped his educational career in the year 1976, to get a property on lease before he commenced his college education. There is also nothing wrong for a student to take property on lease as he would have leisure time to manage the properties got on lease. As already pointed out, there is no reason to falsely project the release deed, Ex.B5 by the second defendant if at all there was no lease deed executed by his father. There is nothing unnatural for a father to let out the property to his son for cultivation. No law prohibits father to lease out the agricultural property to his son under the lease arrangement.
28. It is true that P.P.Palanisamy Nadar chose to engage an Advocate to give legal notice in the year 1967. He might have been wordlywise as observed by the first appellate court. But, when the Will is not required by law to be registered, even a wise man would think that it is unnecessary to register a Will as it attracts stamp duty and registration charges. For reasons best known to him, the Testator thought it fit not to register the Will.
29. As per section 41(2) of the Registration Act, 1908, a Will could very well be presented for registration by the propounder of the Will for registration after the demise of the Testator. It is true that the Will was registered after the demise of the Testator and also after the suit was laid by the plaintiff seeking partition of the suit property. When the propounder of the Will has every right under the aforesaid law to go in for registration of the unregistered Will executed by the Testator on his demise, the act of the propounder does not throw any suspicion on the execution of the Will by the Testator.
30. Of course, the Will was not produced by the second defendant at the time when the written statement was filed by him. The second defendant has come out with a cogent reason that he, in fact, entrusted the unregistered Will to his Advocate and that he was not aware whether the said Will was produced before the Court. The fact remains that after the written statement was filed, the Will was registered on presentation by the propounder. Quite probably, the Advocate on record would have hesitated to produce the unregistered Will alongwith the written statement filed by the second defendant as there was a proposal for registration of the said Will.
31. An uncharitable remark has been made as against the Trial Court by the first appellate court that the Trial Court was swayed by the quantity of evidence when quality of evidence had taken a beating. In the considered opinion of this court, the Trial Court has really weighed the quality of evidence available on record and come to a fair decision that the attestation and execution of the Will were established by the first and second defendants.
32. Of course, it is on record that the very same scribe had written and the very same D.Ws.4 and 6 had attested the lease deed, Ex.B5. It is quite common for a person to approach a particular scribe as the said scribe may be knowing the actual affairs of the family. DW6 being a close family friend of P.P.Palanisamy Nadar had been associated when Ex.B5 lease deed was executed. DW4 is none other than the brother-in-law of P.P.Palanisamy Nadar. There is nothing wrong in associating those persons in executing the lease deed, Ex.B5. Just because they had been associated in executing Ex.B5 which came into existence long prior to the execution of Ex.B6, we cannot doubt the very execution of Ex.B6 by the Testator.
33. It is argued by the learned Senior Counsel appearing for the plaintiff as though the women folk in the family was given a raw deal inasmuch as they have been completely eschewed from the purview of the Will, Ex.B6. No cogent reason was assigned to disinherit the women folk, it is submitted.
34. On a careful perusal of Ex.B6, it is found that the Testator has given cogent reason to disinherit his daughters. He has stated that he was living with the second defendant, of course, in the company of his wife. Except one daughter, all other daughters had been given in marriage. The Testator, in fact, was toying with an idea to make arrangement of the marriage of the unmarried daughter even during his life time. If at all he had not accomplished such a task during his life time, he had delegated such an assignment to the first and second defendants, who are beneficiaries under the Will. The Testator had thought it fit to bequeath the entire property in favour of his son as all the daughters except one daughter, had already been given in marriage and the unmarried daughter also was proposed to be given in marriage shortly. It is to be noted that the second defendant was a bachelor at the time when the Will, Ex.B6 was executed by the Testator. Therefore, the court finds that cogent reason has been given for disinheriting the daughters.
35. In this context, it is beneficial to refer to the decision in RAMABAI PADMAKAR PATIL v. RUKMINIBAI VISHNU VEKHANDE ((2003) 8 SCC 537) wherein it has been held as follows:-
"A Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstances, especially in a case where the bequest has been made in favour of an offspring. In P.P.K.Gopalan Nambiar v. P.P.K.Balakrishnan Nambiar it has been held that it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. In this case, the fact that the whole estate was given to the son under the Will depriving two daughters was held to be not a suspicious circumstance and the finding to the contrary recorded by the District Court and the High Court was reversed."
36. It has been categorically held therein that the Will executed by the Testator would definitely alter the mode of succession. Reduction or deprivation of the share of a natural heir pursuant to the execution of the Will would not throw any suspicion on the execution of the Will.
37. The learned Senior Counsel appearing for the plaintiff would refer to a decision in ADIVEKKA v. HANAMAVVA KOM VENKATESH ((2007) 7 SCC 91) wherein it has been held as follows:-
"The disposition made in the Will is unfair, unnatural and improbable as no sane person, save and except for very cogent reasons, would disinherit his minor children."
38. That was a case where the minor children were completely disinherited and no cogent reason also was assigned for such disinheritance in the Will executed by the Testator. Here in the instant case, no minor child was disinherited by the Testator. Secondly, this court has already pointed out that cogent reasons were given by the Testator for disinheriting the female children. Therefore, the above observations made by the Supreme Court will not apply to the facts and circumstances of this case.
39. The learned Senior Counsel appearing for the plaintiff also referred to a decision in ANIL KAK v. SHARADA RAJE ((2008) 7 SCC 695) wherein it has been observed as follows:-
"It may be true that deprivation of a due share by (sic to) the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a Will."
40. It has not been held therein that deprivation of the due share to the natural heir by itself would throw suspicion on the execution of the Will. Disinheritance of the natural heir will have to be considered by the court while appreciating the evidence for execution of the Will. In the instant case, the court has already held that sufficient reason has been assigned for the Testator to disinherit his female heirs. This court also considered the circumstances under which the Testator chose to disinherit his female heirs.
41. It is the consistent evidence of the witnesses examined on the side of the defendants that the second defendant was not present at the time when the Will, Ex.B6 was executed by the father of the second defendant. The second defendant, when he was examined as DW2, has deposed that his father, having decided that the division of the agricultural lands would not be beneficial, thought it fit to give the agricultural lands to him and the house property standing in the name of the first defendant to his sisters. DW6 has stated before the court that the Testator was toying with an idea to execute the Will for some time. It is in evidence that the second defendant was in fact residing with his father at the time when Ex.B6 was executed by his father. DW2 has very fairly submitted that he came to know of the execution of the Will on the very same day of the execution. The question is whether he actively participated and thereby exerted undue influence on the Testator. There is nothing on record to suggest that he actively associated himself in the process of execution of the Will and thereby he exerted pressure on his father to bequeath the entire property to him. As the Testator was toying with an idea to execute the Will, it is quite probable that he would have expressed his desire of giving agricultural lands to the second defendant. The aforesaid deposition of DW2 does not go to show that DW2 in fact participated in the execution of the Will.
42. DW1 and DW2 have spoken about the desire of the Testator to give the house in the name of the first defendant to his daughters. The intention of the Testator which did not form part of the Will has been spoken to openly by DW1 and DW2 in the court. As the house properties admittedly stood in the name of the first defendant, the Testator cannot legally deal with those properties in the Will, Ex.B6 executed by him. Rightly he had not spoken to his desire with respect to the disposition of the properties of his wife in the Will, Ex.B6. Just because DW1 and DW2 have spoken about the mind of the Testator at the time when Ex.B6 was executed, we cannot jump to a conclusion that the present Will spoken to by the witnesses is not at all the last Will of the Testator.
43. As rightly pointed out by the learned counsel appearing for the second defendant, the first appellate court has unnecessarily shifted the burden of establishing the forgery of the Will on the second defendant. It is the fundamental law of evidence that the person who pleads forgery should come out with cogent evidence to establish the plea of forgery. The second defendant, who has come to establish the Will, Ex.B6 cannot be expected to prove the negative. It is only the person who alleges forgery will have to lead evidence touching upon such a plea. No evidence is available on record to establish that Ex.B6 was forged by defendants 1 and 2.
44. In NIRANJAN UMESHCHANDRA JOSHI v. MRUDULA JYOTI RAO ((2006) 13 SCC 433), the Supreme Court was pleased to observe as follows:-
"The burden of proof that the Will has been validly executed and is a genuine document is one 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 Aba Shedage and Sridevi v. Jayaraja Shetty) Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.
34. 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 itself takes prominent part in the execution of a Will which confers on him substantial benefit."
45. In the instant case, the attesting witnesses have spoken to the fact that the Testator, having fully understood the tenor of the Will in a sound disposing state of mind, put his signature. It is not the evidence of the attesting witnesses that they simply saw the Testator signing the Will. The plea of forgery of the Will was not established by the plaintiff. This court has already held that there is no unnaturalness in the disposition made by the Testator by executing the Will. Therefore, the above ratio laid down by the Supreme Court will not come to the rescue of the plaintiff.
46. In APOLINE D'SOUZA v. JOHN D'SOUZA ((2007) 7 SCC 225), the Supreme Court has held as follows:-
"The Will was full of suspicious circumstances. PW2 categorically stated that the Will was drafted before her coming to the residence of the testatrix and she had only proved her signature as a witness to the execution of the Will but the document was a handwritten one. The original Will is typed in Kannada, although the blanks were filled up with English letters. There is no evidence to show that the contents of the Will were read over and explained to the testatrix. PW2 was not known to her. Why was she called and who called her to attest the Will is shrouded in mystery. Her evidence is not at all satisfactory in regard to the proper frame of mind of the testatrix. There were several cuttings and overwritings also in the Will."
47. That was a case where many overwritings were found in the Will sought to be propounded. There was a lack of evidence to show that the contents of the Will were read over and explained to the Testatrix. Lot of suspicious circumstances also were established before the Trial Court. The signature of the attestor in the Will alone was proved by her. In such circumstances, the Supreme Court was pleased to disbelieve the Will sought to be propounded in that case. The facts and circumstances of the instant case are distinguishable from the facts and circumstances of the aforesaid case.
48. It is found that the Trial Court, having properly adverted to and weighed the evidence on record in a proper perspective, has come to a decision that the subject Will, Ex.B6 was executed by the Testator in a sound disposing state of mind and therefore, the plaintiff was not entitled to partition of A schedule property. But, the first appellate court, having completely brushed aside the cogent and acceptable evidence on record, returned a perverse finding that the propounder of the Will failed to remove the suspicious circumstances surrounding the Will and that the Will was tainted with unnaturalness. Therefore, the judgment of the first appellate court will have to be interfered with.
49. In view of the above facts and circumstances, the judgment of the Trial Court is confirmed and the judgment of the first appellate court is set aside and consequently, the second appeal is allowed. There is no order as to costs.
tsi/ssk.
To
1. The District Judge, Coimbatore.
2. The Subordinate Judge, Tiruppur