Madras High Court
Thangam @ Chellammal vs Sivakami
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : .06.2016
CORAM
THE HONOURABLE Ms.JUSTICE R.MALA
Second Appeal No.2324 of 2003
1.Thangam @ Chellammal
2.Balachandran ... Appellants
versus
1.Sivakami
2.Subbulakshmi @ Saroja
3.Mathusoothanan
4.Nagamony @ Murugan
5.Nagarajan
6.Navaneetha Krishnan @ Ganesan ... Respondents
Prayer: Second Appeal is filed under Section 100 of CPC., against the
judgment and decree as made in A.S.No.128 of 2001 dated 17.07.2003 on the
file of the Principal District Court, Kanyakumari, reversing the judgment and
decree as made in O.S.No.307 of 1992 dated 25.09.2001 on the file of the
Principal District Munsif Court, Nagercoil.
!For Appellants : Mr.V.Meenakshi Sundaram for
Mr.R.Murugan
^For Respondents : Mr.R.Vijayakumar
:JUDGMENT
The plaintiffs have has challenged the judgment and decree passed in A.S.No.128 of 2001 on the file of the Principal District Court, Nagercoil, by reversing the judgment and decree passed in O.S.No.307 of 1992 on the file of the Principal District Munsif Court, Nagercoil for the relief of declaration of title and for injunction.
2.The appellants as plaintiffs filed a suit for declaration and injunction stating that the property is self acquired property of one Sankarakumara Pillai. First defendant is the first wife of Sankarakumara Pillai and defendants 2 to 7 are his children born through his first wife. He also got married the first plaintiff on 07.03.1952. Out of their wedlock, the first plaintiff gave birth the second plaintiff and one daughter viz., Ushakumari. The said Ushakumari was given marriage. Sankarakumara Pillai was working as Sreekariem at Dewasom Board. He purchased the property in the year 1973 and he bequeathed the suit property on 02.09.1989 in favour of the plaintiffs. He died on 26.05.1991 and the Will came in to effect. While Sankarakumara Pillai was admitted in the hospital, he was forcibly taken by the relatives and if any document has been created, it would be only by force. The plaintiffs are in exclusive possession. Hence, their sought for the relief stated supra.
3.The defendants raised a plea stating that even though Sankarakumara Pillai executed the Will, that has been cancelled as per cancellation of Will dated 14.05.1991 and hence, the plaintiffs are not in possession and enjoyment of the property and hence, he prayed for dismissal of the suit.
4.The trial Court, after considering the averments in the plaint and written statement, framed necessary issues and after considering the oral and document evidence, decreed the suit stating that the cancellation of the Will has not been proved in accordance with law.
5.Against the said judgment and decree, the defendants preferred an appeal in A.S.No.128 of 2001. The first appellate Court, after considering the oral and documentary evidence, has come to a conclusion that the cancellation of Will has been proved in accordance with law and held that the properties are the absolute properties of the deceased Sankarakumara Pillai and he executed the Will, which was cancelled in accordance with law and hence, the plaintiffs/appellants are not entitled for any declaration of title and consequential injunction. Against the said judgment and decree, the present second appeal has been filed.
6.At the time of admission, the following substantial questions of law have been framed for consideration of the second appeal:
a)Whether the lower appellate Court is right in holding that Ex.B4 was proved beyond suspicion without reversing the findings of the trial Court in that regard?
b)Whether the lower appellate Court is right in coming to the conclusion that the defendants have proved the execution of Ex.B4 as per Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act?
c)Whether the lower appellate Court is right in holding that the defendants have discharged their onus in proving the execution of Ex.B4?
7.Heard the learned counsel for the appellants and the learned counsel for the respondents and also perused the materials available on record. Substantial Questions of Law a to c:
8.The appellants as plaintiffs filed a suit for declaration of title and injunction on the basis of Will dated 02.09.1989 i.e. Ex.A2. But, the respondents raised a plea that Ex.A2 Will has been cancelled as per Ex.B4 on 14.05.1991. But, the trial Court has disbelieved Ex.B4 cancellation of Will dated 14.05.1991 and decreed the suit. The first appellate Court has come to a conclusion that the cancellation of Will has been proved in accordance with law and dismissed the suit.
9.Now, the point to be decided in this second appeal is as to whether the respondents have proved the cancellation of Will dated 14.05.1991 in accordance with law.
10.The learned counsel for the appellants would submit that Section 63 of Indian Succession Act deals with unprivileged Will. As per Section 70 of Indian Succession Act, the cancellation of Will has to be proved on par execution of the Will. So, the respondents ought to have proved the due execution of Ex.B4, valid attestation, after dispelling suspicious circumstances as per Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act.
11.The learned counsel for the appellants taken me to para No.13 of the judgment of the trial Court, wherein, the trial Court considered the evidence of D.Ws.3 and 4, attestors and D.W.6, the Sub Registrar, who registered the document and came to the conclusion that Ex.B4 has not been proved in accordance with law, since there are discrepancies in the evidence of D.Ws.3, who is none other than the son-in-law of the deceased Sankarakumara Pillai, whereas, the appellate Court has accepted the evidence of D.Ws.3 and 4, attestors and held that the cancellation of will Ex.B4 has been proved in accordance with law. Therefore, the learned counsel for the appellants would submit that as per Section 70 of the Indian Evidence Act, the burden is upon the respondents/defendants to prove that the cancellation of Will viz., Ex.B4 has been executed on free will and own volition, while the executant was in sound disposing state of mind, which was duly executed and validly attested. For the reason, the learned counsel for the appellants relied on the following decisions:
1.A.I.R.1941 Madras 612 ? Ramachandra V. Ranganayaki,
2. AIR 1979 Supreme Court 145 ? Durga Parshad V. Debi Charan and others,
3.I.L.R. 2008 KAR 87 ? S.Jagadish V. S.Kumaraswamy Since Dead By ... on 20 March 2007.
12.He would further submit that it is the duty of the persons, who relied on the cancellation of Will, to prove that the cancellation of Will by dispelling all the suspicious circumstances. For the reasons, he relied upon the following decisions:
1.A.I.R. 1959 Supreme Court 443 ? H.Venkatachala Iyengar Vs. B.N.Thimmajamma and others,
2.A.I.R.1990 Supreme Court 396 ? Kalyan Singh V. Smt. Chhoti and others, 3AI.R.1998-2 L.W.134 (SC) - Gurdial Kaur and Ors. Vs. Kartar Kaur & Ors.
13.Relying upon the above stated judgments, the learned counsel for the appellants submitted that the following suspicious circumstances were arisen, which are not dispelled by the persons, who relied on the revocation/cancellation of the Will Ex.B4.
i)D.Ws.1 and 3, who are the son and son-in-law of the deceased Sankarakumara Pillai have played a vital role for execution of Ex.B4, is one of the suspicious circumstances.
ii)Admittedly, as per the evidence of D.W.5 Doctor, the executant was discharged from the hospital on 11.05.1991, against the medical advise and he executed the cancellation of Will Ex.B4 on 14.05.1991 and died on 26.05.1994 and there is no evidence to show that he was in sound disposing state of mind.
iii)Once the executant was residing at Nagercoil, the document has been registered at Sub Registrar's Office, Boothapandi, which is also one of the suspicious circumstances .
iv)In para 9 and 10 of the written statement, the defendants, the persons, who relied on Ex.B4 stated that his father, the deceased has executed Will. The Will was not seen the light of the day. It was not produced.
v)Further, on the date of execution of Will dated 02.09.1989, he also executed Ex.A6, settlement deed to Ushakumari, the daughter, who born to Sankarakumara Pillai to the first plaintiff/appellant Thangam @ Chellammal and also, he executed the sale deed as per Ex.B1 in favour of Radha, who is the daughter born to the first plaintiff through another person. Without setting aside the cancellation of those documents, he executed the cancellation of Will is also one of the suspicious circumstances.
vi)The signature of the executant in the documents are shaky, which shows that the executant has not executed Ex.B4 in sound state of mind and free will and volition.
vii)There is a difference between Ex.B4, the original cancellation of deed and Ex.B13, the document produced by D.W.6, the Sub Registrar, who registered the document.
viii)No reason has been assigned for cancellation of Will in Ex.B4.
14.Therefore, the learned counsel for the appellants prayed for setting aside the judgment and decree passed by the first appellate Court and restored the judgment and decree of the trial Court.
15.He has further submitted that the first appellate Court has held that if the cancellation of Will is accepted, the Will would be cancelled and the legal heirs of Sankarakumara Pillai are entitled shares and hence, if this Court is not accepting the arguments, instead of filing a fresh suit, the Court ought to have declared the shares of the appellants in this appeal.
16.Resisting the same, the learned counsel for the respondents submitted that Section 70 of the Indian Evidence Act deals with. how can the unprivileged Will can be cancelled? But, here, cancellation of Ex.B4 has been proved in accordance with law. The attestors of the document Ex.B4 were examined as D.Ws.3 and 4. Even though, they have proved the due execution and valid attestation, there is no cross examination on this point. Only, the cross examination is in respect of registration and identifying the witnesses. Hence, the first appellate has rightly held that the cancellation of Will has been proved as per Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. He relied upon the following decisions :
1.2007(5) CTC 318 ? J.Mathew (died) and others V. Leela Joseph
2.(2006) 3 M.L.J. 633 ? G.Jayaraman and Others V. Ranganayagi and Others and submitted that the alleged Ex.B4 has been executed on 14.05.1991, but, the witnesses were deposed before the court after 10 years, that would fade in memory. Therefore, the minor discrepancy in the evidence of D.Ws.3 and 4 will not be the reason for discard the entire evidence of D.Ws.3 and 4.
17.He has further submitted that the suspicious circumstances mentioned by the appellants have been dispelled. If really, the testator/deceased was not in sound disposing state of mind, he can cancel Ex.A6 settlement deed in favour of Ushakumari and Ex.B1 sale deed in favour of Radha, which were executed on the date of execution of Ex.A2, Will and the same would show the application of mind of the deceased Sankarakumara Pillai.
18.He has further submitted that in respect of Shaky signature is concerned, D.W.6 has stated that he appeared before the Sub Registrar and signed the same and hence, the signature in all the pages are shaky. It is not a case of forgery and the shaky signature is no way created the suspicious circumstances.
19.He would further submit that the original cancellation of Will has been registered, wherein, the name of the person, who typed Ex.B4 has not been mentioned. But, in Ex.B13, the name of one K.V.Sreekumar, who has typed the document has been mentioned and nothing has been done by the respondents in respect of the document maintained by the Sub Registrar's Office. He has further submitted that there is no will has been executed on 14.05.1991. Hence, mere pleading will not create the suspicious.
20.He would further submit that why the document has been executed at Boothapandi, where his brother was residing. It is not a reason because, the Will Ex.A2 has been executed only in Kanykumari District, which is 20 kilometer away from Nagercoil, where the property is situated. It is not a bar that Will can be execute any place.
21.He has further submitted that D.Ws.1 to 3 are not beneficiaries and they are not the propounders of the Will. With the intention of the testator, out of 17-1/2 cents, 5 cents has been settled to Ushakumari, who is born to the testator and the first appellant and another two cents has been sold in favour of Radha, who born to the first appellant and hence, the balance has been divided between his heirs. In such circumstances, they have not played a dominant role and they are not the beneficiaries, which shows the mental capacity of the testator for executing the deed.
22.He has further submitted the medical report Ex.B6 clearly shows that the testator was hale and healthy and his mental capacity has been good. In such circumstances, he would submit that the first appellate Court has given a correct finding, after considering the oral and documentary evidence, it is a last fact finding Court. Finding of the last fact finding Court is not a perverse. Hence, he prayed for dismissal.
23.He has further submitted in the grant of preliminary decree of partition is concerned, the daughter of the deceased Sankarakumara Pillai born to Chellammal was not party to the proceedings and hence, no preliminary decree for partition can be passed in this appeal.
24.It is appropriate to consider the citation reported in A.I.R.1941 Madras 612 ? Ramachandra V. Ranganayaki, wherein, it is held as follows:
?The onus to prove that the will was cancelled by the testator lies on the party alleging the same?
25.It is appropriate to consider the citation reported in AIR 979 Supreme Court 145 ? Durga Parshad V. Debi Charan and others, wherein, it is held in para 25 as follows:
?25.Against this background we shall now deal with the authorities of the Indian High Courts. But before we do that it may be necessary to extract Section 70 of the Act:
?No unprivileged will or codicil, nor any part thereof shall be revoked of otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is hereinbefore required to be executed, or by the burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.?
A perusal of this section would clearly reveal two important features. In the first place, the section has been couched in negative terms having a mandatory content. Secondly, the section provides the mode and the very circumstances under which an intention to revoke can be established. In these circumstances, therefore, the onus is on the objector who relies on the revocation to prove that the will had been revoked after it has been proved to have been duly executed. Under S.70 of the act the will can be revoked inter alia, by burning, tearing or otherwise destroying and unless any of the circumstances has been proved by the objector by cogent evidence, the question of the revocation of the will will naturally not arise. While construing this section, this Court in the case of Anil Behari Ghosh V. Smt.Latika Bala Dassi, AIR 1955 SC 566 observed as follows:-(At P.573) ?For proving that the will had been revoked, it had to be shown that the testator had made another will or codicil or by some writing declared his intention to revoke the will.
Such a document is required by Section 70 of the Act to be executed in the same manner as a will. Such a revocation could also have been proved, as the section lays down, by burning, tearing or otherwise destroying the will by the testator himself or by some other person in his presence and by his direction, thus clearly indicating his intention of revoking the will.?
26.It is appropriate to consider the citation reported in I.L.R. 2008 KAR 87 ? S.Jagadish V. S.Kumaraswamy Since Dead By ... on 20 March 2007, wherein, it is held in para 18 an 19 as follows:
?18.Now, the question is whether this Will is duly revoked as contended by the plaintiff. The learned counsel for the appellant contended that the standard of proof that is required to prove a Will and the proof of cancellation of duly executed Will is one and the same. In that connection, he brought to my notice Sections 70 and 63 of the Act and several decisions of the Apex Court on the said point.
19.Section 70 of the Act deals with revocation of unprivileged Will or codicil which reads as under:
70.Revocation of unprivileged will or codicil. - No unprivileged will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is hereinbefore required to be executed, or by the burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.?
As per the decisions stated supra, it is the duty of the defendants to prove Ex.B4, as per Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act.
27.The learned counsel for the appellants would submit that the persons, who relied on Ex.B4 have to dispel the suspicious circumstances on execution of Ex.B4 cancellation of the Will. For the reason, he relied upon the decision reported in A.I.R. 1959 Supreme Court 443 ? H.Venkatachala Iyengar Vs. B.N.Thimmajamma and others, wherein, it is held in para 20 and 21, as follows:
?20.There may, however, be cases in which the exeuction 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
21.Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity.
Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to wills; but any, objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the restator who is no longer alive?.
29.It is appropriate to consider the decision reported in, A.I.R.1990 Supreme Court 396 ? Kalyan Singh V. Smt. Chhoti and others, wherein, it is held in para 20 as follows:
?20.It has been said almost too frequently to require repetition that a will is one of the most solemn documents known to law. The executant of the will cannot be called to deny the execution of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.?
30.It is also appropriate to consider the decision AI.R.1998-2 L.W.134 (SC) ? Gurdial Kaur and Ors. Vs. Kartar Kaur & Ors. wherein, it is held in paras 2 and 3 as follows:
?2.The Court of Appeal below has indicated several factors which according to the learned Judge, had raised reasonable suspicion about the genuineness and valid execution of the said will. It has been indicated that some of the natural heirs had been disinherited in the said will without any reason for such action. It has also been indicated that there was not even a whisper in the original written statement filed by the legatees to the will about the existence of such will in the Declaratory Suit filed against them. Only when one heir was left out and added as a party defendant, for the first time, in the additional written statement the execution of will was mentioned. The learned District Judge has also indicated the reason for which he had doubted that the executant of the will had been identified by the Lambardar because the Sub Registrar could not say whether the Lambardar identifying the executant was a Harijan Lambardar or someone else. It may also be indicated here that the scribe of the will, in his deposition, stated that he did not know the executant of the will.
3.The law is well settled that if there is suspicious circumstance about the execution of the will, it is the duty of the person seeking declaration about the validity of the will to dispel such suspicious circumstances. In this connection, reference may be made to the decision of this Court in Rani Purnima Debi and another V. Kumar Khagendra Narayan Deb and another (AIR 1962 SC 567). It has been held in the said decision that if a will being registered and having regard to the other circumstances, is accepted to be genuine, the mere fact that the will is a registered will, it will not by itself be sufficient to dispel all suspicious regarding the validity of the will where suspicions exist. It has been held that the broad statement by witness that he had witnesses the testator admitting execution of the will was not sufficient to dispel suspicions regarding due execution and attestation of the will. It has been specifically held that registration of the will by itself was not sufficient to remove the suspicion. Relying on an earlier decision of this Court reported in AIR 1959 SC 443, it has been held in the said decision that where the propounder was unable to dispel the suspicious circumstances which surrounded the question of valid execution and attestation of the will, no Letters of Administration in favour of the propounder could be granted.? .
There is no quarrel over the propositions laid down in the above citations relied upon by the learned counsel for the appellants. Therefore, it is the duty of the respondents, who relied upon Ex.B4, to prove the due execution, valid attestation and sound disposing state of mind, after dispelling the suspicious circumstances.
31.The learned counsel appearing for the respondents would submit that the document Ex.B4 has come into existence on 14.05.1991, but, the witnesses were examined in the year 2001, i.e. After 10 years and hence, there would be fade in memory. Therefore, the minor discrepancy in the evidence between D.Ws.2 and 3 is not a reason for discarding entire evidence of D.Ws.2 and 3. For the reason, he relied on the decision reported in 2007(5) CTC 318 ? J.Mathew (died) and others V. Leela Joseph, wherein it is held in para 28 as follows:
?28.Learned counsel for the appellants contended that evidence of D.W.3 discloses as if the Testator was in a confused mind at the time of execution of the Will. Testator was very old being aged about 80 and had just recovered from severed heart attack for which he was hospitalised and was even unconscious for a few days.
It is of course true that there is a recital in the Will that the Testator had remained unconscious for five days, but admittedly he was discharged from the hospital and thereafter the Will was executed after about six months. Even after execution of the Will, he had lived for another three years and even in 1994 it was acknowledged before D.W.3 that he wanted to make some minor alterations in the Will. We do not think that these circumstances would indicatge that the Testator was not in a sound disposing state of mind in May, 1992, when the Will was executed and registered.?
32.It is also appropriate to consider the decision reported in (2006) 3 M.L.J. 633 ? G.Jayaraman and Others V. Ranganayagi and Others, wherein, it is held in para 11 as follows:
?11.The Will has been attested by two persons out of whom admittedly one attesting witness was dead and the other attesting witness was examined as P.W.1 in T.O.S.No.34 of 1999. According to the evidence of such witness, the two executants had gone to the Office of the Sub-Registrar. The attesting witness had stated that he was known to the executants, particularly Govindasamy Naidu and he had cordial relationship with the husband of Defendant No.1, one of the daughters. Such evidence is not challenged. Therefore, his statement that he was taken by the executants to the Sub-Registrar's Office for the purpose of attesting the Will can be considered as normal. As per the evidence of P.W.1, the Will was drafted by a Document Writer in the Sub-Registrar's Office and such Will was executed by Govindasamy Naidu after he read over the document which was in Tamil. He has further stated that Abranji Ammal, the wife of Govindasamy Naidu, put her thumb impression as she had joint pain in the fingers and she could not hold the pen to sign. D.W.1, one of the daughters, has admitted in her evidence that the attesting witness P.W.1 and the other attesting witness were friends of his father. She further admitted that P.W.1, the attesting witness is also his husband's friend and her parents were not of unsound mind. She has further admitted that there was ?no enmity between us and two attesting witness?. In such circumstances, the evidence of P.W.1, the attesting witness, relating to execution of the Will, which appears to be natural, cannot be discarded merely because of some minor discrepancies here and there as has been done by the learned single Judge.?
There is no quarrel over the propositions laid down in the above citations.
33.Perusal of the evidence of D.Ws.3 and 4 would show that no cross examination has been done in respect of execution of Ex.B4. In such circumstances, I am of the view that the respondents, who relied upon Ex.B4 have proved that Ex.B4 is a true and genuine document, which was duly executed and validly attested as per Section 68 of Indian Evidence Act and Section 63 of Indian Succession Act.
34.Now, this Court has to decide as to whether there are suspicious circumstances as alleged by the counsel for the appellants.
35.Perusal of the records would show that on 02.09.1989 not only Ex.A2 has been came into existence, but also, Ex.A6 and Ex.B1 have also been came into existence. However, the deceased Sankarakumara Pillai has cancelled Ex.A2 Will alone under Ex.B4, which shows his application of mind. If really, he was puppet in the hands of respondents, they may very well cancel the settlement deed in favour of Ushakumari under Ex.A6. Therefore, I am forced to accept the argument advanced by the learned counsel for the respondents that non cancellation of Ex.A6 and Ex.B1 is proving the application of mind by the deceased, executant Sankarakumara Pillai, while executing Ex.B4, cancellation of Will.
36.Perusal of Ex.B13, the name of the person, who typed the cancellation of deed has been mentioned, whereas in Ex.B4, it was not mentioned. Ex.B13 has been given by the registration department. In such circumstances, I am of the view that it is not a suspicious circumstances.
37.As per the evidence of D.W.5 and medical report Ex.B6, it is stated that the said Sankarakumara Pillai was discharged on 11.05.1991 and his general condition was fairly well and conscious through the hospital stay and appropriate care and management was given. But, he was taken home against the medical advise by one Murugan on 11.05.1991. He was admitted on 05.04.1991 and discharged on 10.04.1991. In Ex.B6, it has been mentioned as follows:
?He came with an abscess at heel in left feet. History suggested Diabetes Mellitus. His General condition was fairly well?,which show that he was mentally fit. Hence, the evidence of P.W.5 and Ex.B6 has been ruled out and the executant Sankarakumara Pillai as sound state of mind has executed the deed.
Hence, the evidence of D.W.5 and Ex.B6 would show that the general condition of the executant was fairly well and his sound disposing state of mind has been proved.
38.In respect of the beneficiary is concerned, the learned counsel for the appellants would submit that D.W.1, who is the son and D.W.3, who is son-
in-law have taking vital part in execution of the deed. It is only a suspicious circumstances. At this juncture, the learned counsel for the respondents would submit that they are not the beneficiaries and they are also co-sharers along with other sharers.
39.At this juncture, the learned counsel appearing for the appellant swould submit that they are entitled the share and hence, they are beneficiaries. Considering the arguments made by the learned counsel for the appellants, I am of the view that once the Will has been cancelled and the executant died intestate, all the legal heirs of the deceased Sankarakumara Pillai are entitled equal share in the property, since it is self acquired property of Sankarakumara Pillai. In such circumstances, they are entitled only a fraction of the property and not the entire property and they are not the legatees under the Will. It is the duty of the son to help his father for his work to be done. Merely because, he is accompanying with his father and taking part will not vitiate the document Ex.B4. Hence, the arguments advanced by the learned counsel for the appellants that they played a vital role is unacceptable.
40.In respect of registration at Boothapandi Sub Registrar's Office is concerned, the distance between the place, where the executant residing is 10 kilometer, whereas, Will has been executed 20 kilometers away from Nagercoil, where the property is situated. The reason assigned is that the brother of Sankarakumara Pillai has been residing in Boothapandi and hence, they gone there to register the document and hence, the registration of cancellation of Will viz., Ex.B4 at Boothapandi is not a suspicious circumstances.
41.It is true No reason has been assigned for cancellation of Will. In Section 70 of Indian Succession Act, it is specifically mentioned that at the instance of testator, if the will is tear off, it amounts to cancellation. Here the executant has executed the registered document to cancel the same and hence, I am of the view that there is no necessary to assign the reason for cancellation. The testator must assign reason for excluding one of the legal heir by bequeathing property. However, while cancellation of Will, no reason has to be assigned.
42.Considering the entire evidence and documents and the judgment and decree of both the Courts below, I am of the view that the respondents herein has dispelled all the suspicions circumstances that with the intention to give shares to all the legal heirs, Will Ex.B4 has been executed to cancel Ex.A2 Will dated 02.09.1989. Hence, the substantial questions of law 1 to 3 are answered accordingly.
43.The defendants have discharged their onus in proving the execution of Ex.B4 as per Section 63 of Indian Succession Act and Section 68 of the Indian Evidence Act and dispelled the suspicious circumstances. Hence, the judgment of the first appellate Court dies not warrant any interference and it is hereby confirmed. Consequently, the second appeal is dismissed.
44.The arguments advanced by the learned counsel for the appellate that the preliminary decree of partition to be given. Admittedly, the other sharer Ushakumari was not a party to the second appeal. In such circumstances, no preliminary decree of partition has been granted. Even in the written statement itself, they have reserved the right to file a partition suit in respect of other property left by the deceased Sankarakumara Pillai. In such circumstances, I am of the view that the request made by the learned counsel for the appellants for passing preliminary decree in respect of the share of the plaintiffs cannot be entertained.
45.In fine, the second appeal is dismissed. The judgment and decree of the first appellate Court is hereby confirmed. No costs.
To
1.The Principal District Court, Kanyakumari.
2.The Principal District Munsif, Kanyakumari..