Madras High Court
D.Rajamannar vs D.Rajaraman on 1 December, 2022
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
S.A.No.381 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 01.12 .2022
CORAM
THE HONOURABLE Mrs.JUSTICE T.V.THAMILSELVI
S.A.No.381 of 2013
D.Rajamannar
....Appellant
Vs.
1.D.Rajaraman
2.Mahalakshmi
3.Chandrasekaran
4.Christuraj
... Respondents
PRAYER: Second Appeal filed under Section 100 of C.P.C., praying to set
aside the decree and Judgement dated 16.08.2012 in A.S No.17 of 2009 on
the file of the Additional Sub Court, Thiruvannamalai confirming the
decree and judgement dated 29.04.2008 in O.S No. 509 of 2002 on the file
of the Principal District Munsif, Thiruvannamalai.
For Appellant : Mr.R.Rajarajan
For R1, R3 and R4 :Mr.P.Mani
For R2 : Dispensed with
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https://www.mhc.tn.gov.in/judis
S.A.No.381 of 2013
JUDGMENT
The appellant herein is the plaintiff in suit O.S No.509 of 2002 on the file of the District Munsif Court, Thiruvannamalai, filed against the respondents herein for the relief of partition praying to allot 1/3 share in the suit property equally along with the defendants 1 and 2 who are the sons of Desingu Reddiar to his father through second wife and other defendants 3 and 4 are the predecessors of the property. Defendant 1 and 2 contested the suit and their contention is property allotted to the share of his father Desingu Reddiar and he enjoyed absolutely, before his demise he executed two Will in favour of them, after his demise the suit properties are enjoyed by them as a benificary of the Will and denied the plaintiffs right over the property. Before the Trial Court both the parties adduced their oral and documentary evidence the Trial Judge framed six issues and one such is whether the Will relied by the defendants 1 and 2 are true, valid and genuine and binding the plaintiff. Considering the evidence as well as the facts and circumstances the Trial Court held that the plaintiff got separated from the family long back while his father was living with 1 and 2 defendant alone take care of his father Desingu Reddiar, out of love 2 https://www.mhc.tn.gov.in/judis S.A.No.381 of 2013 and affection Desingu Reddiar given property in favour of 1 and 2 defendant through registered Will and the same was proved by examining the attestor on the side of the defendants thereby held that Will is true and valid binding the plaintiff. Accordingly the suit was dismissed.
2. Aggrieved over the same, the plaintiff preferred an appeal in A.s No.17 of 2009 on the file of the Sub Court, Thiruvannamalai, Wherein the lower appellate Court anlysed the facts and evidence independently and finally held that based on the Wills Defendants 1 and 2 alone entitled to enjoy the suit property in which the plaitifffs has no right thereby appeal is dismissed by confirming the Trial Court findings.
3. Challenging the same the plaintiff preferred second appeal before this Court by submitting that before the demise of his father Desingu Reddiar was suffered with throat cancer and he was not able to act on his own accord, on such circumstances the execution of the Will by the attestor with the sound state of mind is totally unbelievable. Besides, there is no proper provision in the Will also failed to take note of the fact that propounder ( first defendant) took part in the execution of the Will and all these facts causing suspicious over the execution of the Will which was not removed by the propouder of the Will/defendants 1 and 2 with material 3 https://www.mhc.tn.gov.in/judis S.A.No.381 of 2013 evidence. inspite of that the Court below erroneously dismissed the plaintiff claim held that Will is true and valid as such is valid perverse findings unjust and liable to be set aside. This Court admitted the second appeal with following questions of law:
i. Whether the mere examination of attestors to the Wills would prove the genuineness of the same when there are lot of suspicious circumstances surrounding the Wills? And ii. Whether the Court below were right in holding that Ex.B7 and Ex.B8 are true and genuine, when the 1st defendant had active role to play in the making of Ex.B.7 and in the registeraion of Ex.B7 and Ex.B8 together on the same day?
4. The brief facts of the case are as follows:
The plaintiff herein is the son born through first wife of Desingu Reddiar and the defendant 1 and 2 are born through second wife of Desingu Reddiar. It is admitted facts that during the life time of the plainitff's father with regard to 71 cents in the first item of the suit property there was dispute hence the first defendant filed the suit in O.S No.336 of 1993 in which the plaintiffs, defendant 1 and 2 and his father were parties and the same was ended in compromise whereby the suit property allotted to the Desingu Reddiar is un-disputed fact. Now, the plaintiffs after the demise of his father claiming 1/3 share in that property stating that his father died intestate, but the defendants 1 and 2 denied the plaintiffs claim 4 https://www.mhc.tn.gov.in/judis S.A.No.381 of 2013 contended that during the life time of his father he executed the Will in favour of them which was marked as Ex.B7 and B8 dated 19.07.2000 and 20.07.2000. Apart from that the first defendant discharged the loans borrowed by his father and to prove the same the discharged loan documents were marked as Ex.B10 to B15. Thus the plaintiff able to establish that suit property belongs to his father Desingu Reddiar but the defendants claimed absolute right over the property based upon the two Wills. Hence the suit.
5. The learned counsel for the respondent/defendants submitted that before the Trial Court attestor of Will examined as D.W.2 who was attestor in two Wills thereby he complied the mandate as required under Section 68 of Evidence Act. Furthermore, the defendant/respondent counsel pointed out that both the Wills are registered one, so it is sufficient to constitute Will is true and valid. Hence he prays to dismiss the Will.
6. By way of reply the learned counsel for the appellant/plaintiff submitted that mere registeration of Will is not acceptable one as a propounder he has to prove the genuineness of the Will. That apart the plaintiff's father was sufferred due to throat canccer and he was unable to move and speak, on such circumstances the Will was came into force and 5 https://www.mhc.tn.gov.in/judis S.A.No.381 of 2013 the propounder of the Will also took part in the execution of the Will which cause suspicious circumstance over the execution of the Will and the same has not been removed by the defendanat through proper evidence thereby Will would not be as true and valid one to that effect he relied the Judgements of this Court in the case of Govindan Chettiar (died) Vs Akilandam Alias Seethalakshmi and 24 others reported in 1997 (3) law weeksly 673:
47. Regarding execution and attestation and also regarding removal of suspicious circumstances, the Supreme Court has said as follows in the decision reported in AIR 1959 SC 443 (H. Venkatachala Iyengar v. B.N. Thimmajamma and others):-
The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under S. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence untill one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant. Thus the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. It would 6 https://www.mhc.tn.gov.in/judis S.A.No.381 of 2013 prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
However, there is one important feature which distinguishes Will 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 find in favour of the propounder 'In other words, be 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 7 https://www.mhc.tn.gov.in/judis S.A.No.381 of 2013 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 testor'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, frand 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.
Apart from the suspicious circumstances above referred to in some cases the Will 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 circumstances 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 suspicious circumstances that decision of English Courts often mention the test of the satisfaction of judicial conscience. 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 testator who is no longer alive.
It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on Wills, no hard and fast or inflexible rule can be laid down, for the appreciation of the evidence. It may, however, be stated generally that a propounder of the Will has to prove the due and valid execution of the Will and that if there are any suspicious circumstances surrounding the execution of the Will the 8 https://www.mhc.tn.gov.in/judis S.A.No.381 of 2013 propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties'.
No evidence is adduced in accordance with the above decision.
7. Further he relied upon the another judgement in the case of H. Venkatachala Iyengar Vs B.N. Thimmajamma and others, reported in AIR1959 SCC 433 (1):
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 testator who is no longer alive.
8. Further he relied the another judgement in the case of Rani Purnima Devi and another VS Kumar Khagendra Narayan Deb and another reported in AIR 1962 SCC 567 :
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7. Let as now turn to the, facts relating to the execution of this will. We' have already pointed out that the High Court was of the view that there., were suspicious circumstances attending the execution of the will and that it was an unnatural will. The testator left behind him his widow and his married daughter (who are appellants before us) and an unmarried sister who was dependent upon him. Besides these, the testator had a number of other relations who were much nearer to him than the respondent. Even if we leave out of account the married daughter and the other nearer relations, the widow-,'and, the, sister were certainly expected to be properlyprovided for by the testator. It is not in dispute thatthe relations between the testator and his wife and sister were good.
In these circumstances we should have expected something better than what is provided in the will for those two. All that the will says is that the wife and the sister would be suitably maintained by the respondent during their life-time. No amount is specified which should be given to these two ladies as maintenance and no charge is created on the properties left by the testator which were considerable. In effect, the two ladies were left to the tender mercies of the respondent in the matter of their maintenance. Further the result of this will is that the daughter would be completely disinherited. The testate or had a number of children but all have died many years before and only one daughter was alive at the time of his death. She was married and on behalf of the propounder it is Raid that the relations between the testator and her husband were not very happy. The evidence, however, does not show that the relations between the testator and his son-in-law were particularly strained at the time of the execution of the will. In any case there is no satisfactory evidence to show that relations between the testator and his daughter were bad even if the relations between him and his son-in-law were not of the best. In the circumstances we should have expected the testator to make some provision for the daughter, particularly when it is said that she was not well-off. There is no doubt therefore that the will is most unnatural and that is a suspicious circumstance which must be satisfactorily explained before the respondent can get letters of administration.
8. Another suspicious circumstance is that the respondent gets the sole benefit under the will subject to the maintenance of the wife and the sister and he was certainly taking part in the execution of the will on the date it was executed. In such ,circumstances the respondent was required to remove the said suspicion by clear and satisfactory evidence. Whether he has done so or not will be considered by us later.
9.The ratio laid down in the above referred cases necessitated the propounder not only to prove the Will but also should remove the 10 https://www.mhc.tn.gov.in/judis S.A.No.381 of 2013 suspicious circumstances surrounded the Will. Hence, the point to be decided is whether the defendants cleared the suspicious circumstance casted over the Ex.B7 and Ex.B8. It is admitted fact that the attestor Desingu Reddiar was suffered with throat cancer before his demise. According to the plaintiff the said Desingu Reddiar/his father was unable to speak as per the advice of the Doctor in Adayar Cancer Institure, chennai, then he was taken back to the native place at that time alleged Will said to be executed on 19.07.2000 and 20.07.2000 on the next day it was registered on 21.07.2000. thereafter said Desingu Reddiar was died. Those circumstance reveals that on that date of alleged execution of Will the testator was sick and suffered with throat cancer. The defendant also admits that testator took treatment in Adayar Cancer institute, Chennai. Futher, D.W.2 in his evidence also admits that Desingu Reddiar was suffered with throat cancer and unable to walk before his demise.
10. Now, the burden is on the defendants 1 and 2 to prove the Wills more particularly Will was dictated by the testator with sound state of mind. But the attesting witness D.W.2 stating that Desingu Reddiar was in drousy mode in his native place before his demise. It is also pertinent to know that the propounder the first defendant was one of the identifying 11 https://www.mhc.tn.gov.in/judis S.A.No.381 of 2013 witnesses in the execution of the Wills admits that at the time of the execution of the Will he was there and the witness in the Will also his close relatives, but in the above Wills the plaintiff being the first wife's son of Desing Reddiar not been mentioned in the Will. Nor there is any recital about the non allotment of properties to him in the Wills. Therefore, the objection raised by the plaintiff is that the Will was not executed with the sound state of mind by the testator nor it was proved by the defendants 1 and 2, by offering explanation for all these suspicious circumstance.
11. Though the defendants contended that during the life time of his father the plaintiff not had cordial relationship with him and left the family long back and the family debts were discharged by the defendants to that effect they produced certain documents on his side but all those facts were happened during the life time of the plaintiff's father. As per the terms of the compromise decree in O.S No. 366 of 1993 first item of the suit properties were settled. But those circumstance would not support the contention of the defendants for the reason that before the demise the testator was not in good health. Admittedly he suffered with throat cancer. So the contention of the plaintiff is acceptable one that his father was not in sound state of mind nor dictate the Will, the evidence of D.W.2 attestor 12 https://www.mhc.tn.gov.in/judis S.A.No.381 of 2013 also established that the testator was in drousy and suffered due to the throat cancer during his last days. There is no explanation offered on the side of the defendanats as to why two Wills were executed on subsequent days and the both were registered on next day. Furthermore, mere registeration of the Will would not amount to that it is genuine one. Apart from that, as beneficiaries of the Wills the first defendant took part in execution of the Will would create doubt in the minds of the Court that Wills were executed only at his instance not at free Will of the testator. Further, The first Defendant has not offered any explanation nor he produced material evidence to remove all these suspicious circumstance casted upon the Wills, however the Court below also failed to appreciate all the suspicious circumstance over the Wills . Hence the Judgments relied by the appellants is squarely applicable to the facts of the present case finaly held that Wills were not proved beyond reasonable doubt as the onus is on the propounder also not been discharged. Therefore, the findings rendered by the Courts below is unjust and perverse and liable to be set aside. Accordingly questions of law are answered.
12. Thus the plaintiffs proved that the suit property was absolute 13 https://www.mhc.tn.gov.in/judis S.A.No.381 of 2013 property of his father Desingu Reddiar and also established that he died intestate. Hence he along with the defendant entitled to 1/3 share in the suit property accordingly suit is decreed as prayed for. With regard to 3 and 4 defendants who are purchasers of the property they have to work out their remedy in the final decree proceedings along with share allotted to the defendant 1 and 2, but their purchase will not bind the 1/3 share of plaintiffs. Accordingly preliminary decree is passed. This Second Appeal is allowed. There shall be no order as to costs.
01.12.2022
pbl
Index :Yes/No
To
1. The Additional Sub Court, Thiruvannamalai
2.The Principal District Munsif, Thiruvannamalai.
3.The Section Officer, VR Section.
T.V.THAMILSELVI, J.
14 https://www.mhc.tn.gov.in/judis S.A.No.381 of 2013 pbl S.A.No.381 of 2013 01.12.2022 15 https://www.mhc.tn.gov.in/judis