Madras High Court
Thiyagarajan vs Muthusamy Gounder on 20 February, 2013
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:20.02.2013 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.880 of 2004 Thiyagarajan .. Appellant Vs. 1.Muthusamy Gounder 2.Krishnan 3.Dhanam .. Respondents This second appeal is filed against the judgement and decree dated 21.9.2001 passed by the learned III Additional District Court, Salem, in A.S.No.57 of 2000 reversing the judgement and decree dated 31.1.2000 passed by the Sub Court, Namakkal, in O.S.No.69 of 1995 For Appellant : Mr.N.Manokaran For Respondents : Mr.P.Jagadeesan for R1 and R2 JUDGMENT
This second appeal is focussed by D3, inveighing the judgement and decree dated 21.9.2001 passed by the learned III Additional District Court, Salem, in A.S.No.57 of 2000 reversing the judgement and decree dated 31.1.2000 passed by the Sub Court, Namakkal, in O.S.No.69 of 1995, which is one for partition.
2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.
3. Compendiously and concisely the germane facts absolutely necessary for the disposal of this second appeal would run thus:
(i) The first respondent herein, as plaintiff, filed the suit for partition seeking the following reliefs:
"a. To direct the division of Item-1 of the schedule into three equal shares by metes and bounds after making provision for the debts and allotting one such share to the plaintiff putting him in exclusive possession of the same;
b. to direct the division of each of Items-2 to 5 into four equal shares by metes and bounds and allotting one such share in each item to the plaintiff putting him in exclusive possession of the same;
c. to award costs of the suit."
(extracted as such)
(ii) D3 filed the written statement resisting the suit.
(iii) D1 and D2 remained ex-parte.
(iv) Whereupon issues were framed. Up went the trial, during which, the plaintiff examined himself as P.W.1 along with P.Ws.2 to 4 on his side and marked Ex.A1. On the defendants' side, the third defendant-Thiagarajan was examined as D.W.1 along with D.W.2-Pulla Gounder and D.W.3-Subramanian-the scribe and Exs.B1 to B3 were marked on their side. Exs.X1 to X6 were marked as Court documents.
(v) Ultimately the trial Court decreed the suit partly in respect of item No.1 only and dismissed the suit in respect of the other items, so to say, items 2 to 5.
(vi) Challenging and impugning the judgement decree of the trial Court, the plaintiff filed the appeal on various grounds.
(vii) The first appellate Court reversed the judgement and decree of the trial Court and decreed the suit for partition even in respect of items 2 to 5 also.
4. Challenging and impugning the judgement and decree of the first appellate Court, this second appeal has been filed by D3 on various grounds and also suggesting the substantial questions of law.
5. My learned predecessor formulated the following substantial question of law:
"Whether on the evidence adduced and the admissions made by the plaintiff witnesses, the lower appellate Court is right in holding that the provisions of Section 63(2) of the Indian Succession Act, have not been fully complied with and hence it cannot come to the conclusion that the propounder has proved the execution of the Will?"
6. Heard both sides. On hearing both sides, I though fit to reformulate the substantial questions of law thus:
(i) Whether the first appellate Court was justified in reversing the judgement and decree of the trial Court, without adverting to the factual discussions and the findings of the trial Court?
(ii) Whether the first appellate Court was justified in disbelieving the 'Will' on the following grounds:
(a) the notary public, who purportedly attested the Will-Ex.B2, was not examined.
(b) the Draft Will has not been produced;
(c) One Perumal in whose house the Will was executed was not examined.
(d) D.Ws.2 and 3 did not speak about the soundness of the health of the testeator.
(iii) Whether there is any perversity or illegality in the judgement of the first appellate Court?
7. All the above substantial questions of law are taken together for discussion as they are interwoven and interconnected, interlinked and entwined with one another.
8. On the above substantial questions of law both sides advanced their arguments.
9. The learned counsel for the first appellant/D3 would pyramid his arguements, which could succinctly and precisely be set out thus:
(i) The trial Court adverting to Section 8 of the Notaries Act and Rule 11 of the Notaries Rules, appropriately and appositely, legally and convincingly rendered its judgement, but without any discussion whatsoever, the first appellate Court reversed such findings of the trial Court, warranting interference in second appeal.
(ii) Nowhere under the law it is contemplated that a notary has to be examined before accepting the notary attested documents in evidence
(iii) The draft Will is not expected to be produced in Court; however, the first appellate Court had high expectation to the effect that non production of such draft led the Court to look askance at the Will.
(iv) The non-examination of Perumal, in whose house the Will was scribed cannot be taken as fatal to the case, because, one of the attesting witnesses, namely, Pulla Gounder(D.W.2), who admittedly and indisputably attested the Will of Angammal the mother of present testator Parvathy and who also happened to be a septuagenarian, deposed cogently and convincingly without any controversy whatsoever.
(v) For no good reason the first appellate Court disbelieved such version of Pulla Gounder.
(vi) Section 63 of the Indian Succession Act and correspondingly Section 68 of the Indian Evidence Act would contemplate compulsorily examination of one of the attesting witnesses to prove the Will.
(vii) Over and above that the scribe was examined, who also corroborated D.W.2-Pulla Gounder in all aspects.
(viii) In paragraph No.16, the first appellate Court observed without going through the depositions of witnesses D.W.2 and D.W.3 as though they did not speak about the soundness of the health of the testator. A mere running of the eye over the depositions of D.W.2 and D.W.3 would exemplify and demonstrate, convey and portray that they spoke about the soundness of the health of the testator at the time of executing the Will.
(ix) The plaint is as silent as silence could be relating to the Will even though in the pre-suit reply notice given to the notice of the plaintiff, such Will was referred to by D3.
(x) The deposition of P.W.1-the plaintiff also does not refer to anything about the Will and as such, it should only be construed that impliedly the plaintiff admitted the genuineness of the Will and it is too late in the day on the part of the plaintiff to impeach and challenge the genuineness of the Will.
As such the judgement and decree of the first appellate Court should necessarily be set aside and the judgement and decree of the trial Court has to be up held by allowing this second appeal.
10. Per contra, in a bid to torpedo and pulverise the pleas as put forth on the side of the appellant/D3, the learned counsel for the first respondent/plaintiff and also R3/D2 would advance his arguements, which could succinctly and precisely be set out thus:
(i) Before the first appellate Court I.A.918 of 2000 was filed for entertaining additional evidence so as to entertain the following documents:
------------------------------------------------------------------------------
Sl.No. Date Particulars
------------------------------------------------------------------------------
01 07.11.1949 Registered Will executed by Angammal in favour of Parvathi Ammal Original
------------------------------------------------------------------------------
02 20.02.1959 Registered Mortgage deed executed by Muthusamy gounder and Parvathi Ammal in favour of Nallianna Gounder Original
------------------------------------------------------------------------------
However, the first appellate Court dismissed the said application, but taking into consideration the pro et contra and after analysing the evidence threadbare it correctly reversed the judgement of the trial Court in view of the fact that the trial Court simply was carried away by the alleged notary attested Ex.B2-Will, without discussing in detail the other circumstances, which operated as against the Will.
(ii) The first appellate Court independently as well as deeply went into all aspects of the evidence including the oral evidence of the witnesses and held that the case of D3 was not convincing and it is also a fact that D3-one of the beneficiaries under the Will turned out to be a moving spirit in bringing about such Will and based on that also, the first appellate Court appropriately looked askance at the Will.
(iii) It is a settled proposition of law that the beneficiary if actively participates in getting a Will executed in his favour then that itself would be one of the suspicious circumstances. The first appellate Court correctly adverted to the said legal proposition and disbelieved the Will, warranting no interference in second appeal.
(iv) In fact, before the first appellate Court the original registered mortgage deed bearing the left thumb impression of Parvathi was filed, so that if the appellate Court wanted, it could compare the disputed left thumb impression with the left thumb impression in the said original mortgage deed.
(v) The depositions of D.Ws.1 to 3 are full of contradictions and they virtually weaved a rope of sand, which the first appellate Court correctly disbelieved it.
(vi) The testator's residence admittedly is at Keerambur, whereas, the Will-Ex.B9 was purportedly executed by her at the house of Perumal at Sandhaipettai Pudur, which is 10 K.M.away from her residence.
(vii) The advocate notary, namely, P.S.Kuppuraj, was practising only at Salem; however, it is the case of D3 that he was brought from Salem to Namakkal, so to say, to the house of Perumal and there he purportedly and allegedly attested the said Will.
(viii) There is also no clarity as to whether the entire Will was scribed while D.W.1(D3) was present or while he was absent.
(ix) The appellate Court correctly expected the draft will to be produced because of the mutual contradictions in the depositions of D.Ws.1 to 3.
(x) The presumption attached to notary attested document is only a rebuttable presumption and not an irrebuttable one. In the reply statement, the plaintiff appropriately and correctly disputed the genuineness of the Will by pleading that it was a forged and fabricated one brought about purely for the purpose of defrauding the share of the plaintiff, who happened to be the husband of the deceased testator Kannupillai @ Parvathi.
Accordingly, the learned counsel for the plaintiff would pray for dismissal of the appeal.
11. At the outset itself I would like to fumigate my mind with the following decisions of the Honourable Apex Court and this Court relating to Will:
1. 1994 (5) SCC 135 (Bhagwan Kaur vs. Kartar Kaur and others
2. 2003 (12) SCC 35 (Bhagat Ram and another vs. Suresh and others)
3. 2006 (13) SCC 449 (B.Venkatamuni vs. C.J.Ayodhya Ram Singh and others) A perusal of the aforesaid judgments would cumulatively reveal that the propounder of a Will has to prove the due execution of the Will by the testator as per Section 63 (c) of the Indian Succession Act r/w Section 68 of the Indian Evidence Act. There could be no quarrel over the proposition that a Will has to be proved strictly in accordance with those aforesaid provisions of law.
(i) 2005(1) SCC 40 [Daulat Ram and other vs. Sodha and others] (ii) 2005(1) SCC 280 [Meenakshiammal (Dead) through LRs. and others vs. Chandrasekaran and another] (iii) 2005(1) CTC 443 [Sridevi and others vs. Jayaraja Shetty and others] (iv) 2005(1) L.W.455 [Janaki Devi vs. R.Vasanthi and 6 others] (v) 1989 (1) L.W.396 [Nagarajan and 3 others vs. Annammal] (vi) AIR 1982 SC 133 [Smt.Indu Bala Bose and others vs. Manindra Chandra Bose and another] (vii) AIR 1985 SC 500 [Satya Pal Gopal Das vs. Smt. Panchubala Dasi and others] (viii) AIR 1991 Bom. 148 [Asber Reuben Samson and others v. Eillah Solomon and others] (ix) 2008(2) MLJ 119 [M.Anandan and others vs. A.Dakshinamoorthy] (x) 2006(4) L.W.942 [Gurdev Kaur & others vs. Kaki & others] (xi) 2008(1) MLJ 1337 SC [Savithri and others vs. Karthyayani Amma and others] (xii) 2007(3) L.W.916 [1. J.Mathew (died) 2. J.Damien and 3 others vs. Leela Joseph]
(xiii) (1990) 1 SCC 266 (Kalyan Singh, London Trained Cutter, Johri Bazar, Jaipur vs. Smt.Chhoti and others)
(xiv) (1990) 3 SCC 364 (Ram Piari vs. Bhagwant and others)
(xv) (1962) II Madras Law Journal Reports (Supreme Court) 27 (Rani Purnima Debi and another vs. Kumar Khagendra Narayan Deb and another) (xvi) 1976 STPL (LE) 8415 SC (Smt.Jaswant Kaur vs. Smt.Amrit Kaur and others) (xvii) 1984 (II) MLJ 133 (M.Krishnan vs. Ramaswami and others) (xviii) 2004 (1) CTC 619 (SC) (P.S.Sairam and another vs. P.S.Rama Rao Pisey and others) (xix) (2008) 8 MLJ 647 (Thayammal vs. Ponnusamy and another) Among the aforesaid decisions, the decision of this Court reported in 2001(3)CTC 283 [Corra Vedachalam Chetty and another vs. G.Jankiraman] is on the point that the Court while analysing the Will is acting as a Court of conscience. An excerpt from the above said decision would run thus:
"26. This need for caution, cannot be exploited by unscrupulous caveators who choose to cull out imaginary suspisions with a view to prevent the legatees under the Will from claiming the benefit thereunder and to render the last Will of the deceased wholly ineffective. In this context, the conduct of the persons who raise the alleged ground for suspision is also to be looked at, to know as to how credible are the grounds for suspisions sought to be raised by such persons. In this case, the suspicion is sought to be raised by a person who is keenly interested in making the Will ineffective and whose conduct is far from one which would inspire confidence in truthfulness of his statements."
As such, the cited precedent would also highlight that the Court should not attach undue importance to imaginary suspicions. All these aforesaid decisions are on the point that the Court should not at the time of analysing the validity of the Will proceed on the hypothesis that the Will is an invalid one.
12. At this juncture, my mind is reminiscent and redolent of one other decision reported in 2003(1)CTC 308 [ Janki Narayan Bhoir vs. Narayan Namdeo Kadam]. An excerpt from it would run thus:
"8. To say will has been duly executed the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e., (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witness has to sign the Will in the presence of the testator.
9. It is thus clear that one of the requirements of due execution of Will is its attestation by two or more witnesses which is mandatory.
10. Section 68 of the Evidence Act speaks as to how a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of the proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of the clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in this evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the Will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."
13. A plain reading of those decisions would highlight that if there are suspicious circumstances, then the same should be dispelled to the satisfaction of the Court by the propounders of the Will.
14. In addition to the above, the learned counsel for the appellant/D3 would cite the following decisions of the Honourable Apex Court:
(i) 2012(1) CTC 206 DAYANANDI V. RUKMA D. SUVARNA AND OTHERS, certain excerpts from it would run thus:
"13. An analysis of Section 63 shows that the testator must sign or affix his mark on the Will or the same shall be signed by some other person as per his direction and in his presence. The signature or mark of the testator or the signature of the person signing for him shall be placed in a manner which may convey the intention of the testator to give effect to the writing as a Will, which is also required to be attested by two or more persons, each of whom must have seen the testator sign or affix his mark on the Will or some other person sign the Will in the presence or as per the direction of the testator. If the witness has received a personal acknowledgement from the testator of his signature or mark or the signature of other person signing on his behalf, then it is not necessary that both the witnesses shall simultaneously remain present. The Section also lays down that no particular form of attestation is necessary."
(ii) (2012) 4 SUPREME COURT CASES 387 MAHESH KUMAR (DEAD) BY LRS. V. VINOD KUMAR AND OTHERS, certain excerpts from it would run thus:
"47. The mere fact that Kailash Chand lives at a distance of about four furlong from the house of Bal Kishan (father-in-law of the appellant) has no bearing on the issue relating to the validity of the will nor the non-examination of the persons belonging to the same community has got any relevance. The absence of a categorical recital in the will dated 10.2.1992 that the earlier will was cancelled is also not relevant because once the execution of the second will is held as duly proved, the earlier will automatically becomes redundant because the second will represents the last wish of the testator."
15. With this in mind, this Court is enjoined to analyse the evidence as well as the facts placed before me for the purpose of deciding the substantial questions of law involved in this case.
16. Trite as it is, that as per Sec.68 of the Indian evidence Act (Section 63 of the Indian Succession Act), examination of at least one of the attesting witnesses would be sufficient to prove the Will. In this case D.W.2(Pulla Gounder) was examined and he deposed to the effect that in his presence (D.W.2) and one other witness-Palanivelu, the testator, namely, Parvathi, put her left thumb impression in Ex.B2-the Will and that in her presence the witnesses attested the said Will. He would also clearly and categorically depose that one witness by name, Chinnasamy identified the testator and he also signed it along with the scribe-Subramanian. It is also the version of D.W.2 that the notary attested the said Ex.B9.
17. As such, according to the learned counsel for D3, the ingredients of Section 63 of the Indian Evidence Act were fully satisfied and that alone enabled the trial Court to dismiss the suit in respect of items 2 to 5 as those items are covered by Ex.B2-the Will, which would portray and buttress that those items 2 to 5 were bequeathed in favour of her two sons, namely, D1 and D3.
18. As such, in the facts and circumstances of this case, in view of the decisions cited supra, non-examination of Palanivelu-one other witness cannot be treated as fatal. The scribe-D.W.3 also would almost corroborate the deposition of D.W.2.
19. Whereas the learned counsel for the plaintiff would try to make out contradictions in the depositions of D.W.2 and D.W.3 with that of the deposition of D.W.1(D3).
20. A mere running of the eye over those depositions of D.W.1 to D.W.3 would cumulatively convey and portray that undoubtedly D3 participated in the process of execution of the Will by the testator in favour of D1 and D3.
21. The core question arises as to whether that alone can be taken as fatal to the genuineness of the Will.
22. At this juncture, I fumigate my mind with the following decision of the Honourable Apex Court:
(2005) 8 SUPREME COURT CASES 67 PENTAKOTA SATYANARAYANA AND OTHERS V. PENTAKOTA SEETHARATNAM AND OTHERS, certain excerpts from it would run thus:
"30. Coming to the evidence of D.W.4 (appellant 1) his evidence is that the testator alone went to execute the Will. He also states that he also went there and he does not know whether his mother and brother accompanies him. He says that he has not seen the writing of the Will and he was not present at the time of registration. He also says that he did not go to the place where the document was scribed. Applying the law as set out above and assuming the worst against the appellants, no case of undue influence, coercion or fraud is made out to negate the Will. The mere presence of D.W.4(Appellant 1) would not make it a suspicious circumstance. Assuming the presence to be true that does not mean undue influence was exercised and mere presence does not mean that a prominent part was played. Hence the Will has been duly proved by the appellants."
23. As such, mere presence of the beneficiary or participation of the beneficiary in the process of execution of the Will, by itself cannot be taken as fatal to the Will, unless it could be shown that the beneficiary dominated the psyche as well as the wish and will power of the testator.
24. No doubt, the first appellate Court simply observed that inasmuch as D3 also was present and responsible for performing certain acts in the process of executing the Will by the testator, it was a suspicious circumstance. Such a bald statement cannot be made by the Court without anything more, in view of the precedents of the Honourable Apex Court
25. The first appellate Court also would in paragraph No.16 of its judgement pointed out that the soundness of the health of the testator was not spoken to by D.W.2 and D.W.3, but such an observation is quite antithetical to the realities.
26. A bare perusal of the depositions of D.W.2 and D.W.3 would convey and portray that they spoke very much about the mental soundness of the testator. In such a case, the observation made by the first appellate Court in paragraph No.16 of its judgement should be taken as wrong.
27. The expectation of the first appellate Court that the draft Will should have been produced is once again fails to carry conviction with this Court, as there is no mandatory requirement as per law in that regard.
28. The first appellate Court also expected that Perumal in whose house the Will was executed should have been examined. Once again I would like to disagree with such an expectation on the part of the first appellate Court, because nowhere it is contemplated that the owner of the house in which the Will was executed should also be examined.
29. The first appellate Court, adverting to the discussion of the trial Court, should have analysed the evidence and thereafter for reasons to be recorded it should have disagreed with such views. But in this case, the first appellate Court did not choose to do so, which falls foul of O.41, Rule 31 of C.P.C.
30. No doubt, the appellate Court in one sentence would observe that the trial Court believedit disbelieved the Will based on certain decisions, except that bald observation in the first appellate Court's judgement absolutely there is no shard or shred, molecule or jot, miniscule or iota of discussion concerning the reasons for upsetting the judgement of the trial Court.
31. The duties of the first appellate Court are found exemplified in the unreported judgement of this Court dated 17.7.2009 passed in S.A.No.888 of 2007 (Spur Tank Road Filling Station and another vs. F.Jayakumar and another), the relevant portion of which would run thus:
"18. The oral evidence and the documentary evidence adduced by both sides have not been discussed, as it ought to have been dealt with by the last Court of fact.
19. It is trite proposition of law that the first appellate Court, which happened to be the last Court of fact, to analyse both oral and documentary evidence afresh and arrive at an independent conclusion.
20. In this case, the judgement of the first appellate Court, to say the least, is far from satisfactory, as the learned District Judge has totally ignored his responsibility to analyse the oral evidence and also the documentary evidence and arrived at the conclusion."
32. A plain reading of those precedents would exemplify and demonstrate that the first appellate Court being the last Court of facts is expected to thoroughly go into the factual aspect and if the Court decides to reverse the findings of the trial Court, it should advert to the reasons given by the trial Court and for reasons to be recorded, could reverse the trial Court's judgement. If that was not done so, it would be amounting to non-deciding of the appeal properly in accordance with Order 41 Rule 31 of C.P.C. Wherefore, not to put too fine a point on it, the judgement of the first appellate Court has to be set aside simply on that ground itself.
33. The learned counsel for the plaintiff would submit that D.W.2 one of the attesting witnesses to the Will was admittedly closely related to D3 closely, because D3's maternal grant daughter happened to be the wife of D3. But one fact should not be forgotten, as correctly pointed out by the learned counsel for D3 that admittedly it was D.W.2-Pulla Gounder, who attested the Will executed by Angammal-the mother of the said Parvathi in favour of Parvathi, half a century before and the same D.W.2 attested the Will-Ex.B9 also. Scarcely could it be stated that appellate Court took note of that exemplary fact in this case.
34. Over and above that nothing has been suggested as against D.W.2 so as to disbelieve his testimony. Those preponderance of probabilities bespeaks and betoken in favour of the Will-Ex.B9.
35. However, one significant point should not be lost sight of. The plaintiff in the reply statement would label and dub the Will as a forged and fabricated one even though the plaintiff did not give any rejoinder to the reply notice given by D3 before litigation and he had also not made any observation about the alleged invalidity of the Will in the plaint as well as in his deposition in chief.
36. There is no gainsaying or denial of the legal position that the first appellate Court should have taken note of such absence of averment in the plaint as well as in the P.W.1's chief examination, and also his failure to give rejoinder to the reply notice given by D3. Seldom legally could it be stated that the plaintiff has got no right to rebut the presumption attached to notary attested Will.
37. Here the Will-Ex.B9 is not a registered one. The Courts below correctly understood the law to the effect that the Will need not be compulsorily registerable. Only on the ground of non-registration, the Will should not be thrown away at the thresh-hold itself.
38.The learned counsel for D3 would cite the following decisions to highlight the point that notary attested document is having sanctity of its own.
(i)AIR 1971 SUPREME COURT 761 JUGRAJ SINGH AND ANOTHER V. JASWANT SINGH AND OTHERS;
(ii)AIR 1982 SUPREME COURT 133-SMT.INDU BALA BOSE AND OTHERS V. MANINDRA CHANDRA BOSE AND ANOTHER;
(iii)AIR 1992 BOMBAY 149 PRATAPRAI TRUMBAKLAL MEHTA V. JAYANT NEMCHAND SHAH AND ANOTHER;
(iv)AIR 1992 PUNJAB AND HARYANA 145 BANARSI DASS V. MAMAM CHAND;
(v)AIR 1967 PUNJAB AND HARYAA 345-JUGRAJ SINGH AND ANOTHER V. JASWANT SINGH AND OTHERS;
(vi)AIR 2007 DELHI 147 KAMLA RANI AND OTHERS V. M/S.TEXMACO LTD;
(vii)AIR 1995 HIMACHAL PRADESH 107 RAJ KUMAR GUPTA AND OTHERS V. DES RAJ AND OTHERS;
(viii)AIR 1994 ALLAHABAD 381 - M/S.NORTHLAND TRADERS AND OTHERS V. BANK OF BARODA;
(ix)AIR 1982 MADRAS 372 PANDURAGAN V. SARANGAPANI AND ANOTHER.
39. A mere running of the eye over those precedents would exemplify and demonstrate that certainly as per Section 8 of the Notaries Act as Well as Rule 11 of the Notary Rules, the presumption would be in favour of the genuineness of the execution of the document by the executant before notary, including the identification of the executant of the document. However, one important fact should not be lost sight of. It is a rebutabl presumption. I would like to refer to Section 4 of the Indian Evidence Act, 1872, which is extracted hereunder for ready reference.
"Section 4. "May presume" Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it:
"Shall Presume" Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved:
"Conclusive proof" When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for he purpose of disproving it."
40. Nowhere it is stated in the Notaries Act or Rules or in the Indian Evidence Act that simply the notary attested document is produced it should be presumed irrebuttably and that it is a genuine document. Only a rebuttable presumption is available in favour of the document.
41. Now the core question arises as to on whom the burden lies.
42. It is the plaintiff who alleges that the testator was not in a sound state of mind for about a decade anterior to her death and that she could not have executed any valid testament. Over and above that the plaintiff would also allege that Ex.B2-the Will was brought about fraudulently by the beneficiaries with the help of the attesting witnesses, the scribe and even the notary. In such a case, the burden of proof, in view of the aforesaid rebutable presumption, was on the plaintiff.
43. It has to be seen as to whether the plaintiff discharged such burden.
44. The learned counsel for the appellant/D3 would appropriately and appositely, correctly and convincingly argue that before the trial Court itself in all fairness D3, in addition to the presumption available in support of the notary attested Will, wanted the Court's help to send the document for experts opinion. But it was the plaintiff, who tooth and nail opposed the same and got that application dismissed. In such a case, the plaintiff already missed the opportunity and now it would not lie in the mouth of the plaintiff to seek for one more opportunity to rebut or dislodge the presumption in support of Ex.B9-the Will.
45. No doubt, even though such an argument of D3 is ex facie plausible, what I would like to observe is that this Court cannot lose sight of the following maxims:
'In dubiis non praesumitur pro testamento' In doubtful cases, there is no presumption in favour of the Will.
Whenever there is any doubt regarding the Will, then that has to be dispelled beyond doubt.
46. So far documents other than Will are concerned, the following maxims would govern the adjudication:
(a) Verba generalia genaraliter sunt intelligenda General words are to be understood generally.
(b) Verba ita sunt intelligenda, ut res magis valeat quam pereat - Words are to be so understood that the matter may have effect rather than fail.
(c) Qui haeret in litera, haeret in cortice: One who clings to the letter clings to the shell or surface.
(d) Mala grammatica non vitiat chartum. Sed in expositione instrumentorum mala grammatics quoad fieri possit evitanda est Bad grammar does not vitiate a deed. But in the exposition of instruments, bad grammar, as far as it can be done, is to be avoided.
47. The above maxims would connote and denote that a document has to be interpreted in such a manner so as to validate it and not to invalidate it, but that will not applicable in respect of Will.
48. Here no doubt, D3 one of the beneficiaries, took part in the process of execution of the Will by the testator and that is glaringly and pellucidly clear from the perusal of the depositions of D.Ws.1 to 3. In such a case, I am of the considered view that one more opportunity could be given to the plaintiff to dislodge the presumption attached to Ex.B2-the notary attested Will.
49. I would also at this stage, in order to disambiguate the ambiguity, if any, point up and show up that examination of notary public is not a must for getting such document admitted in evidence and also usher in brought the initial presumption in favour of the said document and it is the person who challenges it, should take steps to rebut or dislodge such presumption. Even though the plaintiff failed to make use of the earliest opportunity possible, I am of the considered view that one more opportunity could be given to the plaintiff to rebut and dislodge the presumption in favour of the said Will-Ex.B2.
50.As such, with this in view, the aforesaid substantial questions of law are answered as under:
Substantial Questions of Law (i) is answered to the effect that the first appellate Court was not justified in reversing the judgement and decree of the trial Court, without adverting to the factual discussions and the findings of the trial Court.
Substantial Question of law (ii) is answered to the effect that the first appellate Court was not justified in disbelieving the 'Will' on the following grounds that:
(a) the notary public, who purportedly attested the Will-Ex.B2, was not examined.
(b) the Draft Will has not been produced;
(c) One Perumal in whose house the Will was executed was not examined.
(d) D.W.2 and D.W.3 did not speak about the soundness of the health of the testator.
Substantial Question of law (iii) is decided to the effect that there is perversity and illegality in the judgement and decree of the first appellate Court.
51.Accordingly, the judgement and decree of the first appellate Court are set aside and the matter is remitted back to the District Court, Namakkal, with the following direction:
52.The District Court, Namakkal shall appoint an Advocate Commissioner at the costs of the plaintiff and resort to the following procedure:
"An Advocate Commissioner shall be appointed :
(a) To carry the relevant documents in connection with this case personally in a sealed cover;
(b) and produce the same before the Forensic Expert;
(c) leave it in his custody under his acknowledgement for as many days as the Forensic Expert may require;
(d) collect the record from the Forensic Expert on the day as may be fixed by him;
(e) bring it back and lodge it with the Court.
The Forensic Expert is directed to complete the examination of the records in any event, within 48 hours after the depositing of the same by the Advocate Commissioner with him."
53.The plaintiff is enjoined to produce, if not already produced, an ante litum motem registered document bearing the left thumb impression of the testator-Parvathy, so as to use it as an exemplar document for comparison with the left disputed thumb impressions of the deceased in Ex.B2-Will. After getting expert opinion it is for the first appellate Court to give opportunity to both sides to file objections, if any, and to submit their arguements and whereupon a reasoned judgement as per law has to be delivered by it. The first appellate Court shall see to it that the matter is disposed of within a period of three months from the date of receipt of a copy of this order.
54.Whatever records available presently with the earlier first appellate Court, namely, III Additional District Court, Salem, shall be sent to the District Court, Namakkal, immediately.
55.The second appeal is disposed of accordingly. No costs.
Msk To
1. The III Additional District Court, Salem
2. The Sub Court, Namakkal.
3. The District Court Namakkal