Rajammal And 3 Others vs Ramasami And 3 Others on 22 December, 1997

Madras High Court

Equivalent citations: 1998 (1) CTC 98, (1998) IIMLJ 307

ORDER

1. S.A.No.575 of 1984 has been filed against the decision in A.S.No.77 of 1982 on the file of the District Court, Periyar, which was against C.S.No.762 of 1981 on the file of District Munsif’s Court, Erode. The plaintiff in the suit, who succeeded before the trial court and lost before the lower Appellate Court is the appellant.

2. S.A.No.582 of 1984 has been filed against A.S.No.117 of 1982 on the file of the District Court, Periyar, which was filed against O.S.No.1106 of 1981 on the file of the District Munsif’s Court, Erode. Plaintiffs in O.S.No.1106 of 1981, who succeeded before the trial court and lost before the lower Appellate Court filed the second appeal. Pending the second appeal, the second appellant died and the third appellant was brought on record as her legal representative. Defendants 1 to 3 were the same in both the suits. The first defendant Rangasami died pending the first appeals. The third defendant did not contest the suit.

3. There was a joint trial in the two suits. Evidence was common as also the judgment. There were two appeals by the defeated defendants 1 and 2 and there was a common judgment by the Appellate Court and the present appeals have been filed by the defeated plaintiffs.

4. One Natraya Naidu’s wife was Kanniammal. She died on 1.6.1978. Her children were Rangasami, the first defendant in the suits, and Marammal and Andalammal, who were plaintiffs 1 and 2 in suit O.S. No.1106 of 1981. Marammal’s daughter Rajammal, was the plaintiff in O.S.No.762 of 1981. Rangasami’s sons are Ramasamy and Ganesan @ Ganapathi. Ramasamy’s wife is Rajammal, daughter of the plaintiff in the other suit and herself the plaintiff in O.S.No.762 of 1981. Ramasamy and Ganesan are defendants 2 and 3 in both the suits. The children of Ramasamy and Rajammal are Parvathy and Subramanian. For better understanding the following genealogy can be perused.

5. Two Wills are attributed to Kanniammal. One is Ex.A-3 dated 19.2.1976 and the other is Ex.B-1 dated 31.5.1978. The sum and substance is as to which of the two Wills has to be accepted as true, valid and binding on the parties. So far as Ex.A-3 is concerned, it has been found to be true by both the courts below. The trial court held that it was valid and would govern the rights of parties. The trial court also held that Ex.B-1 was not true, valid or binding on the parties. But, the lower Appellate Court found Ex.B-1 to be true, valid and binding on all the parties.

6. Under Ex.A-3 Rajammal gets a life estate in respect of two items and her children, viz. Parvathy and Subramanian are to take the properties absolutely after her life time. The items left out will therefore devolve on the heirs of Kanniammal, viz. Rangasami, Marammal and Andalammal. The whole question will now depend and the decision regarding Ex.B-1 will alleged to have been executed by Kanniammal.

7. The attack by the learned Counsel appearing for the third appellant Subramanian in S.A.No. 582 of 1984 is as follows:

Under Ex.B-1 there was no cancellation of the earlier Will. No reason was given for the change of mind of the testatrix. There is no keeral in the third page. It is not a natural Will. The evidence of the Sub Registrar as D.W.3 should be discredited. One of the attestors Subramanian, who was a man of status has not been examined. The learned Counsel also relied on the following judgments in support of her contentions:

(1) H. Venkatachala v. B.N. Thimmajamma, and

(2) M.L. Abdul Jahar Sahib v. H.V. Venkata Sastri & Sons and others, .

8. Let us now see how the lower Appellate Court accepted the second Will Ex.B-1. So far as the first Will Ex.A-3 is concerned, I have already referred to the fact that it was found to be true and valid by both the courts. Though the lower Appellate Court has observed that Ex.A-3 is unnatural in the sense that Rangasami, the only son of the testatrix Kanniammal, had been disinherited completely, still it has stated that when the testatrix and a son and two daughters, why a grand-daughter through a daughter, should have been preferred. The learned Judge appears to have forgotten that the grand-daughter had married the only son’s son of the testatrix and that the legacy would ultimately go to her grand-children of her only son Rangasami and the learned Judge is also wrong in overlooking that all the properties of the testatrix had been dealt with under Ex.A-3. So far as Ex.A-3 is concerned, there was also a further reason to disinherit the son Rangasami. There were two murder cases against him. There was no love last between the testatrix and Rangasami. Ever since his marriage Rangasami was living away from his mother doing his separate vegetable vending and till her death he did not go anywhere near her properties. It is also in evidence that the marriage of the grand-daughter Rajammal with Rangasami’s son Ramasami was on the rocks and Rajammal had to leave the husband on account of the cruel treatment

meted out to her and seek asylum with her grandmother, the testatrix. It is also in evidence that the testatrix had been cultivating the lands on her own with the assistance of her daughter. Either she did not allow her son anywhere near her or he did not volunteer to participate in the agricultural operations. Thus there is enough material to show that the son was deliberately overlooked by the testatrix for very valid reasons.

9. Another aspect also has to be pointed out. It is the consistent case of the plaintiffs in both the suits that after the birth of a handicapped son, Ramasami drove Rajammal out of the house, and that she went and lived with her grandmother Kanniammal. According to the learned Judge, it was not necessary to investigate as to whether Rajammal left her husband on her own or she was driven out. In my view, this cannot be glossed over in the manner it has been done by the learned Additional District Judge. The trial court in paragraph 48 of its judgment has noticed as follows:

10. The testatrix had a moral obligation to discharge and this prompted her to take steps to provide for her grand-daughter Rajammal through her daughter. Ex.A-3 was a conscious outcome of Kanniammal’s agitated and disturbed mind over the failure of the marriage between her grandchildren. This also answers the Appellate Judge’s observation that the other daughter of Kanniammal was not also well off and that the testatrix had not provided for her. We have already noticed that the testatrix had not disposed of the properties in their entirety under Ex.A-3. She had other properties with regard to which at least on the date of Ex.A-3 she had not done anything about. The learned District Judge also had held though tentatively that Ex.A-3 had been proved to have been validly executed and that it was legally enforceable. The evidence with regard to the execution of Ex.A-3 was overwhelming and the learned District Judge had no alternative other than to upheld its validity.

11. With the above background let as now turn our attention to Ex.B-1. Does it satisfy the criteria set down by the Supreme Court in H. Venkatachala v. Thimmajamma, , the principles enunciated in which have been quoted and requoted time and again to telling effect.

12. The propounder in the instant case, viz. Rangasami (D.1) had taken a very active role in bringing about Ex.B-1. He and his son Ramasami (D.2) had gone to the scribe P.W.2 at Sivagiri and gave him instructions to prepare the Will. This aspect is adverted to by the trial court in paragraph 41 of its judgment. All the properties have been given to Ramasami under Ex.B-1. Only a pittance has been given to the daughters, who, even according to the Appellate Court, were not well-off and even this pittance wa only effective during the life time of the daughters. Each daughter was to get five bags of paddy and Rs.30 per year and this make-believe disposition had prompted the Appellate Court to say that Ex.B-1 was a natural Will.

13. Let us now have a look at the contents of Ex.B.l. Certain items had already been willed away under Ex.A-3, which will as already noticed, had been accepted by the lower Appellate Court, though grudgingly as a conscious effort where the “pen had accompanied the mind”. There should have been a definite and specific mention of the execution of Ex.A-3 in Ex.B-1. There should have been a definite revocation, though it might not have been necessary to give the reasons for such revocation. The propounder D.W.1 says in his evidence that his mother did not tell him anything about the earlier Will and that he did not know about Ex.A-3. There is enough material in this case to show that Kanniammal was in highly independent self-willed woman, who had adequate knowledge of the nuances of life estate, absolute estate, etc. It does not pass muster that Kanniammal did not bring up this subject of the earlier Will at all. This aspect, in my view, belies the natural course of events and sows the seeds of suspicion on the genuineness of Ex.B-1. The contention of the learned counsel for the third appellant is therefore well founded regarding the non-mentioning of the earlier Will and its non-revocation expressly. If the earlier Will is mentioned, a reason may have to be mentioned

for revoking the same. If we look at the document itself, there are several short-comings. Mark is not found in each page. In the third and last page, it is written LT.I., but there is no L.T.I. and no keeral to direction.

14. The learned counsel appearing for the contesting respondents has relied on the following decision of the Calcutta High Court:

Sangar Chanira Nandal v. Bigamber Manda and others X C.L.J. 644.

In page 646 of the said judgment, it is stated as follows:

“The second ground upon which the learned District Judge has refused probate is that each of the several sheets on which the will is written is not signed or initialled. It is well- settled, however, that one signature made with the intention of authenticating the whole instrument, is sufficient, though the will be contained on several sheets of paper (Jarman on Wills, 5th Edition, Vol.1, Page 80), and (Refield on Wills, 4th Edition, Vol.1 page 208). No doubt, as a precaution against possible substitution, each sheet may be initialled by the testator or the witnesses (Ramsen on Wills, 351). But this is not essential, and it will generally be presumed that all the sheets were put together in the same order at the time of execution, as at the testator’s death. The leading decision on this point is that of Mursh v. Mursh (4) where Sri C. Cresswell followed an elaborate judgment of Sri H. Jenner Fust in Gregory v. Queen’s Proctor (5). It was ruled in these cases that when a will is found written on several sheets of paper one of which only is signed and attested, prima facie the presumption is that they were all in the room and formed part of the will at the time of execution. To the same effect are the decisions in Bond v. Senwell (6), Winsor v. Batt (7). In the Goods of Gonaden (8), Cook v. Lambert (9). Of course, the presumption is rebuttable and if there are suspicious circumstances the Court must act with great caution. In the Goods of West (1). But ordinarily the legal presumption would be applied. Rees v. Rees (2), In the Goods of Horsford (3). It has further been held that inconsidering whether or not several sheets of paper constitute the will, declarations made by the testator both before and after execution, are admissible to show that it was his intention to make dispotition in conforming with those found upon the several sheets of paper. Gould v. Lakes (4).

15. In the case before the Calcutta Bench, there was evidence to show that the testator intended to leave his whole property to his nephew, which was precisely the effect of the Will as it stood.

16. The learned Counsel relied on another decision reported in Karri Nookaraju v. Putra Venkatarao and others, . That was a case where the “nishani” (mark) was put in both the pages below the written matter. That is not the case here. There is no mark at the end of the Will at all. It is not explained by any body as to why it has not been done. The lower Appellate Court has conveniently slurred over this aspect and relied upon the above Andhra judgment and two other judgments of our High Court, viz.,

(1) Dasureddi v. M. Venkatasubbammal, 67 MLJ 721 : ILR 57 Mad. 979 : AIR 1934 Mad. 436 and (2) Krishnachar v. Vadichi Goundan, VI MLJ 209.

In Dasureddi’s case, 67 MLJ 721, the Will was written by a person other than the testatrix. At the foot of the Will the following words were there:

“This scratch … the mark of Rangammal, and from the evidence it was proved that the writer ‘K’ did so in the presence of the testatrix and under her direction, the question arose whether the execution of the Will, in the circumstances, by Rangammal could be deemed to be in conformity with Section 63 of the Indian Succession Act, (Act 39 of 1925).”

It was held by the Division Bench that if the Will was signed by ‘K’ with the name of the testatrix, under the circumstances the execution was sufficient according to Section 63(a) of the Succession Act and could not be said to be invalid because it did not contain the signature of ‘K’ himself.

17. In the case reported in Krishnachar v. Vadichi Goundan, VI MLJ 209, the defendant entered into a contract with the plaintiff and executed a document embodying the terms of the contract. The defendant touched a pen in token of his having consented to the agreement and handed it over to another who then put the defendant’s mark in the document. In that case, it was held that the document was properly executed by the defendant. These two decisions will not apply to the facts of the present case. The learned Additional District Judge has also blamed the scribe as having done the mischief of not putting the keeral in the last page. This conclusion, in my view, is wholly unwarranted. The two cases of our High Court are not cases where the keeral was missing in the material page.

18. Coming to the attesting witnesses it is very significant to note that one of the attesting witnesses Subramanian, a man of status, had not been examined. A man who was running a saloon in Sivagiri, who had no assistants helping him, who went to the shop daily very early in the morning and did not return to the village where the testatrix had also her residence, till late in the night, was examined as D.W.4. In this context, it is also very material to refer to the evidence of the scribe P.W.2 Natarajan. He said that the Will was prepared at his residence in Sivagiri on the instructions from D.W.1 and that the testatrix did not come there. These circumstances clearly show that there was something hanky-panky about the whole thing.

19. The state of health of the testatrix at the time of the alleged execution of Ex.B-1 is also significant. She was bedridden for over one year with asthma. She was not able to move from her bed even to answer calls of nature. The respondents, who are witnesses, mention about that. The Registering Officer D.W.3 also speaks about that. This coupled with the fact that mark had not been kept in all the pages, would clearly show that there was something seriously wanting in the whole process and with the coming into existence of Ex.B-1.

20. The Sub-Registrar D.W.3 also says that he learnt that the testatrix was bedridden for a long time and that she was not even in a position to get up. This he learnt on enquiry to satisfy the legal requirements and he would have gone and seen her for the purpose of records, where the Will was prepared at Vadugapatti Village at the residence of the testatrix. This is

reinforced that under directions from the testatrix the keeral was not put. There must have been some other compulsions for the Sub Registrar to have overlooked very patent short-comings in the execution of the documents. It is really strange that an Officer discharging statutory obligations, should have winked at an inchoate and incomplete document and completed the formality of registration. None of the decisions relied on by the learned counsel for the contesting respondents says that a Will which does not contain the signature, thumb impression or mark or mark to direction in the material portion should be taken as a validly executed last testamentary disposition with all the solemnity attached to it.

21. It is to be next noticed that the witnesses had stated that the testatrix had asked about the inclusion or noninclusion of certain times in Ex.B-1. It is attributed to her that she had expressed her unwillingness to execute any Will if it included the propertied in Chinna Odaikkadu. At that time somebody held her band and a Class IV employee of the Registration Department took her thumb impression forcibly. All these things are highlighted only to show that Ex.B-1 could not have been a voluntary document even assuming that the absence of the thumb impression or keeral in the last page is not material. If, in this background, it is noted that the very next day the testatrix died, the conclusion is inescapable that Ex.B-1 is a clumsy and connected document brought about in a hurried manner by the propounder D.W.1 and that it was not the culmination of a conscious and voluntary act of a willing testatrix. The conclusion contra by the lower Appellate Court is wholly unsupportable and is based on a misreading of material evidence.

22. In Sayyaparaju Surayya v. Koduri Mondamma, 1949 (II) MLJ 684 : 62 LW 843, it was held that, the admission required under Section 35 of the Registration Act is admission of execution of the document and in S. Ramamurthy v. Jayalakashimammal, 1991 (1) LW 391, it has been held that,
“the execution of a document is not a mere signing of it. It is a solemn act of the executant who must own up the recitals in the instrument and there must be clear evidence that he put his signature in a document after knowing fully its contents. The executant of a document must, after fully understanding the contents and the tenor of the document, put his signature of affix his thumb impression. In other words, the execution of the document does not mean merely signing but signing by way of assent to the terms of the contract of alienation embodied in the document.:”

23. In T. Kanniah Rao v. Inter Rao, , Raman, J, has observed as follows:

“Registration will have significance when dispute relates to factum of execution of Will and not where testamentary capacity of executant is disputed. If the mental and physical capacity of testatrix to execute Will is disputed, propounder has to prove that testatrix was mentally and physically fit at the time of execution of Will.”

24. In the instant case, it is not established that the testatrix was in a fit and disposing state of mind at the time Ex.B-1 was executed.

25. In Ramamurthi Ayyar and others v. Kuppuswami Ayyar, , it has been held that admission before the Registrar does not prove execution.

26. The short-comings on the part of the Registering Officer have already been pointed out. The learned counsel for the contesting respondents relied on the decision of the Andhra High Court in Chilamakuri Chinna Pullappa v. Guruka Chinna Bayanna and others, . He particularly relied on paragraphs 11 and 12 of the said judgment. The said paragraphs run as follows:

11. Under Section 3(56) of the General Clause Act, the word ‘sign’ has been defined to mean a mark in the case of a person who is unable to write his name. On a true construct on of the words ‘it shall be signed by same other person in his presence and by his direction’, in Section 63(a) the proper form of such signature is, and always has been recognised to be, for the other person to sign the name of the testator and not his own. In the above view, it must be held that the substantial requirements of law have been complied with and that the will had been properly executed.

12. It is contended for the respondents that even supposing the requirements of Section 63 have not been complied with, yet the thumb impression of the testator, which there is evidence to show was made from the deceased’s thumb in the presence of the Sub-Registrar and the attesting witnesses who identified the testator, would constitute a proper execution. In Theresa v. Francis J. Misqutia, AIR 1921 Bom. 156 Fawcett, J. has, in fact, held that where an illiterate testator admits the execution of a will before a sub-Registrar and affixes his thumb impression thereto, there is proper execution of the will apart from the question whether there was such proper execution before. On this ground also, it must be held that Ex.B-3 was duly executed.”

In my view, the decision will not apply to the facts of the present case. I have already held that the respondents were not in a position to establish that the testatrix was in a fit and disposing state of mind at the time she executed Ex.B-1.

In the Andhra case, there was evidence that the testator who was illiterate, held the pen and the scribe wrote the testator’s name at the fact of the document. In the instant case, such clear evidence is totally absent. Somebody had to hold the testatrix’s hand and the Class IV employee of the Registration Department had to get the thump impression.

27. The learned Counsel for the respondents then relied on the judgment in Andal Ammal, In re, 1968 (I) MLJ 356 of Justice Ramaprasada Rao, as he then was. The learned Judge referred to the following passage of Baron Parke in Barry v. Butlin, 1938 (2) Moore P.C. 430:

“These rules are two : the first, the onus probandi lies in every case upon the party propounding a will, and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. The second is, that if a party writes or prepares a will under which he takes a benefit that is a circumstance that ought generally to excite the suspicion of the Court and calls upon it to be vigilant and jealous in examining the evidence in

support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.”

In the case dealt with by the learned Judge, it was held that the propounder had satisfied the Court that the will as propounded was the last will of a free and capable testator. As regards the second rule in that case it was held that though the will was propound by the person who took the benefit under it, yet the defendant had not discharged her burden in establishing that the circumstances under which the will was executed appeared to be suspicious and that it was secured by the imposition of under influence of P.W.3. In that case, the defendant also avoided the box. In the present case, the first hurdle itself has not been crossed by the propounder.

28. Both counsel relied on the decision of the Supreme Court in M.L. Abdul Jabhar sahib v. H.V. Venkata Sastri & Sons and others, . In that decision it is observed as follows:

“It is to be noticed that the word “attested”, the thing to be defined occurs as part of the definition itself. To attest in to bear witness to a fact. Briefly put, the essential conditions of a valid attestation under section 3 are : (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature: (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifying or a registering officer, he is not an attesting witness.

“In every case the Court must be satisfied that the names were written animo attestandi”, see Jaraman on Wills, 8th ed. 137. Evidence is admissible to show whether the witness had the intention to attest. “The attesting witnesses must subscribe made should be complete attestation of the will, and evidence is admissible to show whether such was the intention or not,” see Theobald on Wills, 12th ed p.129. In Girja Datt v. Gangotri, the Court held that the two persons who had identified the testator at the time of the registration of the will and had appended their signatures at the foot of the endorsement by the Sub-Registrar, were not attesting witnesses as their signatures were not put “animo attestandi”. In Abinash Chandra Bidvanidhi Bhattacharaya v. Dasarath Malo, ILR Cal, 598, it was held that a person who had put his name under the word “scribe” was not an attesting witness as he had put his signature only for the purpose of authenticating that he was a “scribe”. In Shiam Sundar Singh v. Jagannth Singh, 54 MLJ 43 the Privy Council held that the legatees who had put their signatures on the will in token of their consent to its execution were not attesting witnesses and were not disqualified from taking legacies.

The Indian Registration Act, 1908 lays down a detailed procedure for registration of documents. The registering officer is under a duty to enquire whether the document is executed by the person by whom it purports to have been executed and to satisfy himself as to the identity of the executant, section 34(3). He can register the document if he is satisfied about the identity of the

person admits execution, section 25(1). The signatures of the executant and of every person examined with reference to the document are endorsed on the document, Section 58. The registering officer is required to affix the date and his signature to the endorsements Section 59. Prima facie, the registering officer puts his signature on the document in discharge of his statutory duty under section 59 and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature.”

This case also does not in any way advances the case of the contesting
respondents.

29. In S.P. Thirunavukkarasu v. S.P. Loganathan and another, 1992 (2) LW 520, a Bench of this Court while dealing with a testamentary document observed as follows:

“The question to be posed are:

(a) Has the testatrix affixed her thumb impression to the Will?

(b) Did she understand the nature and effect of the disposition in the Will?

Of course, it is not possible to have proof wife mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in any such matters as to whether the testatrix was acting on her own free will in executing the Will and whether this part of the initial onus to remove any such doubt in the matter has been discharged.”

30. In my considered view, it has not been established that the trestatrix affixed her thumb impression to the Will fully understanding the nature and effect of the disposition in the Will and knowing what it contained. A prudent mind will not be satisfied in the instant case. The propounder has failed to discharge the onus to remove the doubt in the matter.

31. Having regard to the discussion above, it has to be held that Ex.B-1 has to be rejected as a concocted Will. It has not been proved to have been validly executed by the person who is stated to have executed it. There is a gross misappreciation of evidence by the lower appellate court going to the root of the matter. Indeed whether a person was in a fit state of mind to execute a document is a question of fact. Since the lower appellate court has ignored the weight of circumstances and allowed its judgment to be influenced by inconsequential matters, this Court is entitled to interfere under Section 100 of the Code of Civil Procedure. Consequently, the substantial questions of law raised in these second appeals are answered in favour of the appellants in each of the appeals and the judgment and decree of the lower appellant court are set aside in each of the second appeals and those of the trial court restored. However, there will be no order as to costs. In view of the orders passed in the second appeals, no orders are necessary in C.M.P. No.5717 of 1984.

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Rajammal And 3 Others vs Ramasami And 3 Others on 22 December, 1997

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