IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.02.2008 CORAM: THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL O.S.A.No.379 of 2001 and C.M.P.Nos.2939 and 20660 of 2004 and C.M.P.No.10663 of 2006 P.Mani Alias P.Balasubramaniam ... Appellant Vs. 1.P.Viswanathan (deceased) 2.P.Vinayagam 3.Sornambal 4.V.Balasubramanian 5.V.Ganesan 6.V.Iyyappan 7.V.Palanisekar 8.V.Selvam 9.Kanniga 10.Durga ... Respondents Prayer: Appeal filed under Order XXXVI Rule 1 of the O.S. Rules and Clause 15 of the Letters Patent Appeal against the judgment and decree of the learned Single Judge of this Court dated 24.01.2001 made in T.O.S.No.20 of 1990. For Appellant : Mr.S.Parthasarathy for Mr.V.C.Janardhanan For RR 2 : Mr.S.Sathidoss For RR 3 to 10 : M/s.C.K.Rukmani JUDGMENT
M.VENUGOPAL,J.
O.S.A.No.379 of 2001 is filed by the appellant/ plaintiff as against the Judgment and Decree of the learned Single Judge dated 24.01.2001 passed in T.O.S.No.20 of 1990 in dismissing the suit with costs.
2.The appellant/plaintiff has filed T.O.S.No.20 of 1990 seeking to issue a probate in respect of the Will dated 17.09.1986 executed by Alamelu Ammal.
3.After contest, the learned Single Judge has inter alia come to the conclusion that the Ex.P.1-Will dated 17.09.1986 is tainted with invalidating factors and should have come into existence under suspicious circumstances, which the plaintiff has not explained properly and held that the appellant/plaintiff thoroughly failed to prove that the said Will was executed by Alamelu Ammal and dismissed the suit with costs. Aggrieved against the judgment and decree passed by the learned Single Judge dated 24.01.2001 in T.O.S.No.20 of 1990, the plaintiff has preferred O.S.A.No.379 of 2001 as an appellant.
4.According to the learned counsel for the appellant/ plaintiff, the learned Single Judge fell into error in initially assuming that there are suspicious circumstances in regard to the Ex.P.1-Will dated 17.09.1986 and that the propounder failed to clear the same and that the learned Single Judge has lost sight of the evidence of Mr.Ravichandran, Assistant at Sub Registrar Main Office who produced the register containing the signatures of Alamelu and that the adverse inference drawn against the appellant/ plaintiff on his failure to produce the original will is not correct and there are absolutely no suspicious circumstances attending the execution of the Will and the doubt in regard to the signature of Alamelu in Ex.P.1-Will merely on the ground that in Ex.D.8 the signature is as ‘Alamelu Ammal’ and the reasons assigned for rejecting the evidence of P.W.2 by the learned Single Judge are not fair and proper and that the learned Single Judge was wrong in assuming that P.W.2 saw the original Will from not appreciating his evidence when he deposed that he saw the Will and that the evidence of P.W.2 is not that he saw the original Will and that per contra the learned Single Judge ought to have held that the execution of the Will was duly proved and therefore, prays for allowing the appeal.
5.The learned counsel for the appellant contends that there is clear evidence in the instant case on hand, to prove the due execution of the Will and therefore, when once the due execution is established the Court is not concerned with the manner of disposition or contents thereof, which is exclusive domain of the testator.
6.The learned counsel for the appellant/plaintiff cited the decision 2006-4-L.W.-24 Dr.A.Ravikumar V. M.Savithiri and others, whereunder it is held as follows:
“Will/Genuineness Suspicious circumstance, what is Order of trial judge rejecting application for Probate set aside Bequest in favour of second wife and her sons (Appellant and R1, R2) upheld, as against objection by the first wife’s daughter (R4) Will which has been produced and proved is the Will prepared by carbon process, an exact copy of the other document which has been now produced Merely because there is some omission to indicate the address of the attesting witnesses in the first page of such document, which was already executed by the executant and attested by the attesting witnesses, no suspicion can be raised against the due execution of the Will.
Fact that the testator had not indicated about the execution of the Will to his sister or even to other members including the daughter, such circumstance cannot be considered as a ground to discard the Will, when execution of such Will has been proved through independent witness Conclusion of the learned single Judge that the Will had not been executed and there is suspicious circumstance cannot be sustained”.
7.He also relied on 2006-2-L.W.-658 Pentakota Satyanarayana and others V. Pentakota Seetharatnam and others, wherein it is observed as follows:
“Will/Genuineness, Evidence Act (1872), Sections 68, 114(g), “Execution”, what constitutes, Hindu Law/Adoption, truth and validity Question arising in this appeal (i) is the genuineness of the Will dated 20.2.80 and (ii) validity of the factum of adoption of the 2nd respondent Held: (i)Appellants have discharged their burden and established the genuineness of the Will and that it was executed by ‘S’ and was his last Will.
All the witnesses deposed that they had signed as identifying witnesses and testator was in a sound disposing state of Mind.
“Execution” consists in signing a document written-out, read-over and understood and to go through the formalities necessary for the validity of legal act.
Signatures of the Registering Officer and of the identifying witnesses affixed to the registration endorsement were sufficient attestation Endorsement by the Sub-Registrar that the executant has acknowledged before him the execution also amounted to attestation.
Presumption under Section 114 shall arise to the effect that particulars contained in the endorsement of registration were regularly and duly performed and correctly recorded.
No case of undue influence, coercion or fraud is made out to negate the Will”.
8.On the side of appellant/plaintiff reliance is placed on the decision 2006-4-L.W.942 Gurdev Kaur and Others V. Kaki and others, wherein it is laid down as follows:
“Will/Genuineness, Presumption of legality when due execution is proved, Scope, C.P.C., Section 100 (as amended by Amendment of 1976)/ Duty of High Court in Second Appeal, “Substantial question of law”, what is, Framing of the question Contents of the Will have to be appreciated in the context of the circumstances, and not vis-a-vis the rules for intestate succession It is only for this limited purpose that the Court examiners the nature of bequest Court does not substitute its own opinion for what was the testator’s Will or intention as manifested from a reading of the written instrument After all, a Will is meant to be an expression of his desire and therefore, may result in disinheritance of some and grant to another. Paras 76,77,78
If a Will appears on the face of it to have been duly executed and attested in accordance with the requirements of the Statute, a presumption of due execution and attestation applies”.
9.It is useful to refer to the decision AIR 1964 SC 529 Shashi Kumar Banerjee and others V. Subodh Kumar Banerjee (since deceased and after him his LRs) and others, wherein it is held as follows:
“Succession Act (1925), Ss.63 and 289 Will Mode of proof Onus Principles indicated When court would grant probate AIR 1958 Cal 264, Reversed.
The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S.63, Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator’s mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator’s mind was not free. In such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might be other indications in the will to show that the testator’s mind was not free. In such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. AIR 1959 SC 443 and AIR 1962 SC 567, Foll”.
10.In AIR 1965 SC 354 and 355 Ramchandra Rambus V. Champabai and others, it is held as follows:
“In all cases in which a will is prepared under circumstances which arouse the suspicion of the Court that it does not express the mind of the testator, or that it was prepared under highly suspicious circumstances, it is for the propounder of the will to remove that suspicion. AIR 1929 PC 45, Reiterated (Para 6)
Where it appears that the propounder has taken a prominent part in the execution of the will which confers substantial benefits on him, that itself is generally treated as a suspicious circumstance attending the execution of the will”.
Further, in the aforesaid decision at page 354 and 355 it is laid down as follows:
“(b) Evidence Act (1872), Ss 5 and 118 – Credibility of witnesses It is open to court to look into surrounding circumstances. In order to judge the credibility of the witnesses, the Court is not confined only to the way in which the witnesses have deposed or to the demeanour of witnesses, but it is open to it to look into the surrounding circumstances as well as the probabilities, so that it may be able to form a correct idea of the trustworthiness of the witnesses. The issue, namely, whether the testator did execute a will and if he did, then whether it was duly attested by the witnesses, cannot be determined by considering the evidence adduced in the Court separately from the surrounding circumstances which have also been brought out in the evidence, or which appear from the nature and contents of the document itself. 22 Ind App 12 (23) (PC) Expl”.
11.It is not out of place to cite the decision AIR 1982 SC 133 Smt.Indu Bala Bose and others V. Manindra Chandra Bose and another, whereby it is held as follows:
“The mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a will by S.63 of the Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator’s mind, the dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the will to show that the testator’s mind was not free. In such a case 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. If the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. Any and every circumstance is not a ‘suspicious’ circumstance. A circumstance would be ‘suspicious’ when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. AIR 1964 SC 529, AIR 1959 SC 443, AIR 1962 SC 567, AIR 1950 PC 90, AIR 1950 FC 21 and AIR 1946 PC 156.Rel. On”.
12.In AIR 1962 Supreme Court 567 Rani Purnima Debi and another V. Kumar Khagendra Narayan Deb and another, it is observed as follows:
“Succession Act (1925), S.63 Will Execution Genuineness Testator not making proper provision for his wife and sister depending on him Propounder getting sole benefit under the will subject to maintenance of testator’s wife and sister Propounder taking part in execution of will Signature of testator not appearing to be his usual signature Testator in habit of signing blank papers Signature of testator not in same ink and not with same pen with which body of will was written Held propounder was required to satisfactorily explain suspicious circumstances before he could get letters of administration Witnesses examined in Court being interested Evidence given by them not sufficient to dispel suspicion as to due execution and attestation of will Application for registration of will given by agent of testator for registration on commission Sub-registrar sending his clerk to execute the commission Nothing on record to show that will was read over to testator before he admitted execution of the will Exact words used by the clerk and exact reply of testator absent from evidence Held that broad statement of the clerk that he examined the testator who admitted execution of the will was not sufficient to dispel serious suspicion attaching to due execution and attestation of the will Held that even registration of the will was not sufficient to remove the suspicion Held that as the propounder was unable to dispel the suspicious circumstances which surrounded the execution and attestation of this will, in the circumstances, no letters of administration in his favour could be granted on the basis of it. AIR 1959 SC 443, Rel. on”.
13.In AIR 1959 Supreme Court 443 H.Venkatachala Iyengar V. B.N.Thimmajamma and others, it is held as follows:
“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 until 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 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”.
14.P.W.1-Mani, (plaintiff/appellant) in his evidence has deposed that his deceased mother Alamelu Ammal executed a registered Will dated 17.09.1986 and that his mother expired on 26.10.1988 and after 10 days he had seen the original Will and thereafter, it was missing and therefore, he is filing the registration copy of the Will-Ex.P.1 and Ex.P.2 is the paper publication in regard to the missing of the original Will and that his last brother Muthusamy died on 09.01.80 and his deceased brother share, to be inherited by his mother was bequeathed in the Will and his mother also filed a suit in C.S.No.353 of 1987 and the same was numbered as O.S.No.12852 of 1986 on the file of 4th Assistant Judge, City Civil Court and he is the plaintiff in that suit also and there was already a mortgage on this property and it was cleared by his another brother Vinayagam through Court, who is second defendant in the suit and his mother living with him in 1988.
15.It is the further evidence of P.W.1-Mani that his mother was in a sound and disposing state of mind till her death and that he was given 9 acres 55 cents in Elichur Village, which covered both wet and dry land and are irrigated by tank, which he has given it on lease and that he got married in the year 1996 and before that he had connection with some other woman by name, Kanniammal and through had a son named Anand and that some 15 days prior to his mother’s death, she was admitted in the Government Hospital and also in the Private Hospital and that the death intimation of his mother was informed to D.1 through some other person and he performed the last rites of his mother, who was living with him.
16.The specific evidence of P.W.1-Mani is that after the demise of his mother, at the time of 8th day ceremony only he came to know about the Will executed by her and when his sisters removed the sarees from the box, they took out the Will and they gave that to Vinayagamurthi and he has mentioned about this to his counsel but he does not know whether there is a reference in the plaint about the information given by his sisters in regard to the Will and six sisters were present at the time of 8th day ceremony and the Will was a typed one and his mother signature was also there and he does not know there was any recital in the document to show who had typed it and Munusamy Naidu, Rajendran and Palani attested the Will and that he has working as Conductor in the Transport Corporation in Anna Nagar Depot and that Rajendran is now working as Checking Inspector and the attestor Palani is his friend and the other attestor is only Kuppusamy and not Munusamy Naidu and he is residing opposite to his house Villivakkam and that his mother knew all the three attestors and they also knew about his mother’s family and that it is not correct to say that his mother is not capable of going alone and executing a Will.
17.According to the evidence of P.W.1-Mani, the Will was taken out from the Box and it was given to him and that original was kept only in the Villivakkam house and that Will was registered in Ambattur Office and he does not know about who took his mother to the Sub Registrar Office and he did not enquire the attestors who gave instructions for execution of the Will and he does not know in which place the Will was written and he does not know who gave the recitals to the Will and that the Will was signed by Alamelu Ammal and that the original Will was shown to his sisters but not to his brothers and there is no specific reason for not informing to his brothers.
18.P.W.1-Mani in his cross examination has specifically stated that in Ex.P.1-Will, the signature of his mother is seen as “Alameluammal” and he deny the suggestion that the Will was not executed by his mother and that he had noted the details of the Will in a small notebook paper which is not available now and it is not true to say that he only typed the certified copy of the Will-Ex.P.1 and got it signed by the Office and the signatures found in Ex.C.1 and D.1 to D.4 are one and the same an it is not true to say that he forged the signature of his mother and only to grab at the property, he created the Will.
19.P.W.2-Kuppusamy in his evidence has stated that the plaintiff’s house is opposite to his house and the plaintiff’s mother requested him to attest the Will and she also requested him to come to the Sub Registrar’s Office and himself and Rajendran have signed as attesting witnesses and that they went to the Sub Registrar’s office at about 11.30 a.m. but the registration was done around 2.30 p.m. and that the plaintiff did not come with him to the Sub Registrar’s office and two years after the registration of the Will Alamelu Ammal died and that he has attested as a first attesting witness in the Will, original of Ex.C.1, before the Sub Registrar’s Office, Ambattur.
20.In his cross examination P.W.2-Kuppusamy has deposed that Alamelu Ammal has not discussed with him, her family matters and he does not remember the day on which Will was executed and the alleged Will was executed on 17.09.1986 and he went to Alamelu’s house at 10.00 a.m., when she asked him to come at 10.30 a.m., when he was going out and when he went to her house, the plaintiff’s mother, Rajendran and Palani were present and when he went to her house, the Will was in typed form and he was not informed as to who drafted the Will and it was typed and the Will was written in Tamil, containing two pages, on green papers and that the plaintiff’s mother read out the Will and since he asked for clarification, Rajendran also read out the Will for second time and that the Will was written in regard to the house property at Aminjikarai and after reading the Will, plaintiff’s mother signed and after that himself, Rajendran and Palani also signed and he knew Rajendran when he frequently visited plaintiff’s house and he knew Palani only on that day and they signed the Will at 10.30 or 10.45 a.m. and they went to the Sub Registrar’s Office at Ambattur by bus and they got the bus immediately and reached the Sub Registrar Office at 12 noon and he did not see the plaintiff on 17.09.86.
21.It is the further evidence of P.W.2-Kuppusamy that he does not remember whether there are any corrections in the Will and that Will was registered at 2.00 or 2.30 p.m. and all of them returned together and he does not know who brought back the original Will and he did not enquire whether the original Will was obtained from the Registrar’s Office and before entering into the Box, he has seen the Will and he does not remember the date and month of the death of plaintiff’s mother and he did not informed the plaintiff about the Will and he revealed about the execution of the Will on the 8th or 9th day after the death of the testatrix and that the testatrix did not inform where she kept the Will and after information to Mani, he took the Will and asked him about the Will and plaintiff himself brought the Will and the plaintiff told him about the loss of the Will about one year or two months.
22.D.W.1-Viswanathan/first defendant in his evidence has deposed that in the Will property, his mother, the plaintiff, second defendant and four unmarried sisters were living and his father filed a maintenance case and as the plaintiff was administering the entire estate, he paid the amount to his father as ordered by the Court and his father often used to come to the Will property and in 1979, there was a partition in their family at Kunrathur and the partition was effected at the request of the plaintiff and his mother and the partition took place in the presence of his father-in-law, Govindadass Reddiar, Mohan [who is son of his maternal uncle and who is also his sister’s husband], Gouraiah, the co-brother of Govindadas and his relative one Thambiah and firstly it was decided to divide the Will property into fair co-shares and the plaintiff did not want the house property and he was very particular about the cultivable lands and he was given lands at Elichur.
23.In his further evidence D.W.1-Viswanathan has stated that second defendant was allotted the back portion of the Will property and the deceased son was allotted the front portion of the Will property viz., 14, Sobbaraya Gramani Street and that he was allotted the house at 164, Perambur Barracks Road, Vepery and that the partition was not registered and accepted by all the parties and that they are in possession and enjoyment of the properties allotted to each one of them.
24.The evidence of D.W.1-Viswanathan is to the effect that his mother was not in possession of the Will property and that the Will is a concocted one and the signature in Ex.C.1 is not that of his mother and in Ex.P.1, there is no mention about the mortgage debt and in other documents it has been so stated and in the partition Will and in the release deed his parents have also signed and his parents also signed in the second panchayat and the partition deed and release deed are with the plaintiff, and the draft of the second panchayat is with Govindadas Reddiar and that the said Govindadas signed as witness in the draft of the second panchayat and if these documents are filed by plaintiff, it will be known whether his mother has signed in Ex.P.1.
25.D.W.1-Viswanathan in his cross examination has stated that after his mother’s death, he came to know about the Will only after the petition was filed and he cannot say whether the signatures found in Ex.D.4 and D.3 are that of his mother and since his mother had not signed in Ex.D.3 and D.4 in his presence, he cannot identify them and he is not able to identify the signature found in Ex.C.1 and it is not true to say that Ex.P.1 Will is a genuine one.
26.It is the specific evidence of D.W.2-Govindadas in 1979, he has conducted a panchayat and according to the panchayat, Muthuswamy took the house in the front and was to take care of the mother and Mani was allotted 9 acres of land out of which, 2 acres were set apart and the income therefrom was to be given to the mother and in addition, a sum of Rs.50/- for expenses and parties acted according to panchayat and after the second panchayat, first and second defendants did not sign the original final agreement though they have signed the draft Ex.D.8 and one of the panchayatars in 1979 was his wife’s sister’s husband and from him, the panchayat agreement was taken away by Mani.
27.Ravindran, a junior Assistant of Sub Registrar’s Office, Ambattur in his evidence has stated that one Alameluammal had executed a Will on 17th Sept. ’86 and registered it on the same day and that is contained in Vol.No.20, Book 3 at page 45 and 46 maintained in their office and Ex.C.1 is the Xerox copy of the said pages of the register [the original of Ex.C.1 which is contained in the ledger book was shown to the other side].
28.The learned counsel for the appellant/plaintiff urges that Ex.P.1-Will dated 17.09.1986 will have to be tested at the arm chair of the testator and it is the evidence of P.W.2-Kuppusamy that he has attested the Will of Alameluammal, as a first attesting witness and that the appellant/plaintiff has in his evidence deposed that signature found in Ex.C.1 and D.1 to D.4 are one and the same and that the appellant/plaintiff has given paper publication notice Ex.P.2 about the loss of the Will on 09.01.1989.
29.The power of the Court to compare signature is specified under Section 73 of the Indian Evidence Act.
30.The first defendant while he was alive in his written statement has averred among other things that his grandfather Pallur Kanniappa Gramani had purchased the properties from his self acquisition and that his grandfather executed a settlement deed in respect of the said properties giving life interest in favour of his son Ponnusamy Gramani and Alamelu Ammal and thereafter in favour of the sons of Ponnusamy Gramani absolutely i.e. in favour of grandsons of Kanniappa Gramani and at the time of settlement only one grandson was born viz., himself and thereafter his brothers were born and that the settlement speaks of male heirs only to enjoy the properties and by virtue of the said settlement deed of his grandfather Kanniappa Gramani, himself, second defendant and the appellant/plaintiff and P.Muthuswamy should enjoy absolutely and by means of a Release Deed dated 20.03.1973 Alamelu Ammal and Ponnusamy Gramani, parents of the first defendant relinquished their rights in favour of their sons viz., the first defendant, second defendant P.Vinayagam, appellant/plaintiff P.Mani and P.Muthusamy.
31.Further it is the case of the first defendant in his written statement (later died) that the document dated 17.3.1979 was prepared in regard to the mode of division agreed to between the parties and actually effected already and that the concerned individuals have taken possession of the properties so alleged to each one of them and were enjoying the same by receiving the rents and income and making improvement by getting loans and that on 09.01.1980, the 4th son Muthuswamy died as bachelor leaving behind him his brothers, first defendant, second defendant and the appellant/plaintiff as his sole LRs to succeed his estate and that O.S.No.5032 of 1982 was filed on the file of City Civil Court at Madras by Alamelu, mother to get the 1/4th share of deceased son Muthuswamy and it was dismissed etc.
32.The averment of the first defendant in the written statement is also to the effect that Alamelu filed OP and converted into original suit in O.S.No.673 of 1984 against respondents 1 and 2 before the 7th Assistant Judge, City Civil Court and when during its pendency, the said Alamelu filed the suit for partition in C.S.No.353 of 77 on the file of High Court for allotting the 1/4th share of son Muthuswamy, [allotted to Muthuswamy on 27.3.1987] and also directing to pay mesne profit of Rs.51,870 and cost of the suit etc. The suit C.S.No.353 of 1987 and O.S.No.673 of 1984 and all the applications got abated and dismissed on account of the death of Alamelu Ammal and for not taking further steps.
33.In T.O.S.No.20 of 1990 proceedings, the second respondent/second defendant has not appeared in person or by an Advocate, as seen from the records. However, the second defendant, who is the second respondent in the present appeal contends that the Will is a nullity, since under Section 30 of the Hindu Succession Act, the testator should make a declaration of her property in the said Will under Section 59 of the Indian Succession Act and also the testator has to make a declaration of a property, impliedly meaning the property capable of alienation and on the date of the Will, the testatrix had no property leave alone capable of alienation and that the Will is not a genuine one and there are many suspicious circumstances for rendering the Will a nullity.
34.The categorical stand of the second respondent/second defendant before this Court is that the testatrix Alameluammal had signed the draft agreement Ex.D.8 for partition of all the properties including the Will property under Ex.D.8 and therefore, it is clear that Alameluammal has opted for partition and not for executing the Will and in the Will Ex.P.1 purported to have been executed by Alameluammal, her signature differs from that of Ex.D.8 draft agreement.
35.It is pertinent to point out that the first respondent/first defendant (deceased) has also taken a plea in the written statement that the alleged Will was obtained by the appellant/plaintiff under duress, coercion and undue influence and that the appellant/plaintiff has played fraud and obtained the Will on fraud and collusion.
36.The learned counsel for respondents 3 to 10 submits that after Alameluammal losing the daughter Geetha, she was not in sound mind and that was taken advantage by the appellant/plaintiff and on the date of executing the Will he availed the leave, which has given room for the appellant/plaintiff to play mischief and in order to make gain, he forged the Will and that the suspicion is, the Will is with him and that the appellant/plaintiff has not filed the said original Will and with the help of his friends the appellant/plaintiff has created the Will and that in Ex.D.8 draft agreement all are signed and that there is variance of signature of Alameluammal found in Ex.P.1 and that of Ex.D.8 draft agreement.
37.The learned counsel for the appellant/plaintiff submits that the appellant/plaintiff as propounder of the Will he has not taken any part and that Section 63 and Section 68 of the Evidence Act have been complied with and that the appellant had no idea of the Will and in fact the first respondent/first defendant took only a plea of duress, coercion and undue influence in regard to the Will, in the written statement and therefore, the learned Single Judge has wrongly entertained a doubt as to whether the signature found in Ex.P.1 Will was that of the testatrix viz., Alameluammal because of the reason that in Ex.D.8, she has signed as “Alammelummal” in Tamil.
38.We have heard the learned counsel for the parties and noticed their respective contentions.
39.It is to be noted that any and every circumstance is not a suspicious circumstance, in our considered view. However, a circumstance would be suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal individual. As a matter of fact, if a Will is surrounded by suspicious circumstances, the removal of which is the burden of the propounder. No presumption can be drawn that the Will in dispute is the last Will of the testatrix where there are suspicious circumstances, the Court would naturally expect all legitimate suspicion should be totally removed before the document is accepted as lost Will of the testatrix. It is to be borne in mind that one must adduce evidence evidence to explain all suspicious circumstances in order to remove any doubt that is likely to linger in the mind of Court.
40.It is needless to state that the Will has to be proved like any other document and the real test to be applied is the usual test of the satisfaction of the prudent mind in these matters.
41.In Tulsibai V. Ramkunwarvai (1989) 2 M.P.W.N. 25 at 40, it is observed 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 it ought not to pronounce unless the suspicion is removed”. In reality, the authenticity of a Will depends on the circumstances surrounding its execution and the quality of evidence that is led in respect of its genuineness as per decision AIR 1959 SC 443 H.Venkatachala V. B.N.Thimmajamma, already cited. Moreover, it is the settled principle that if the propounder succeeds in removing the suspicious circumstances, the Court would grant probate, even if the Will might be unnatural.
42.Undoubtedly, Will is one of the most solemn document known to law. The mere fact that Ex.P.1-Will dated 17.09.1986 is registered will not by itself be enough to dispel all suspicion regarding it, where suspicion exists, without submitting the evidence of registration to a closer scrutiny before Court of Law. The issue whether the Will relied on by the propounder is proved to be the last Will of the testatrix has to be decided in view of Sec.67, 68 of the Indian Evidence Act, not withstanding the fact that the opinion of experts and of individuals acquainted with the handwriting of the testatrix are quite relevant, as per Section 45 and 47 of the Evidence Act. Equally, Section 89 and Section 63 of the Indian Succession Act are quite relevant.
43.A reading of the Ex.P.1-Will of the testatrix Alameluammal dated 17.09.1986 spells out that “her son Mani till now has been rendering all kinds of help by providing the testatrix food, clothing’s, medical treatment, etc. required by her and she out of love and affection towards him executes and leave this Will and testament”. That apart, the Ex.P.1-Will dated 17.09.1986 also refers to the appellant/plaintiff after the live time of testatrix Alameluammal taking the share and absolute right of her son Muthuswamy out of the total property which devolved on her entirely through the said son Muthuswamy and to enjoy the same with absolute rights worth of alienation such as gift, exchange, sale etc.
44.The appellant/plaintiff as P.W.1 in his cross examination has stated that before he got married in the year 1996, he had connection with one Kanniyammal and that he had a son named Anand through Kanniyammal and that his mother was living with him and that some 15 days prior to his mothers death, she was admitted in the Government Hospital and also in the Private Hospital and that had did not give information to other brothers etc. and the very fact that P.W.1 viz., appellant/plaintiff was living with Kanniyammal is certainly a definite circumstance which goes against the appellant/plaintiff and in this background, a heavy cloud is caused as to whether she would have preferred the appellant/plaintiff much to the comes to the conclusion of other persons in the family. If really, the appellant/plaintiff has maintained his mother deceased Alamelu then he should have certainly known the Doctors under whom his mother underwent treatment. No specific period during which his mother fell sick was not spoken to by the appellant/plaintiff in his evidence as P.W.1. As a matter of fact, the very evidence of P.W.1 viz., appellant/plaintiff that he does not know the exact money that he spent for medical expenses of his mother shows that he cannot be believed in this regard, in our considered opinion. P.W.1-Mani (appellant/plaintiff) in his evidence has deposed that he lost the Will but he noted the details of the Will in a small notebook paper. However, it is the specific evidence of P.W.2 Kuppusamy that he saw the Will before entering the box. Therefore, it is quite clear that the appellant/plaintiff has certainly withheld the production or exhibition of original Will for the reason that if produced the same will go against him. In fact, it is the evidence of P.W.1-Mani in his cross examination that the Will was at his house at Villivakkam and he did not have any doubt on any particular individual in regard to the loss of the Will. If original Will had been exhibited in Court then there would have been an occasion for proving the signature of Alamelu by seeking the opinion of a handwriting expert as per Indian Evidence Act but that is not the case before us. When the evidence of P.W.1-Mani (appellant/plaintiff) is to the effect that he was in custody of the original Will of Alamelu dated 17.09.1986 and that he lost the same in the normal course, then suspicion looms large very much in the case and certainly this is a circumstance which goes against the appellant/plaintiff, considering the facts and circumstances of the case, in our considered opinion.
45.The appellant/plaintiff though he was a third defendant in C.S.No.353/87 filed by deceased Alamelu praying for the relief of declaration and alternatively seeking relief of partition certainly in those proceedings, there is no mention of Ex.P.1-Will dated 17.09.1986. D.W.2-Govindadas’s evidence is to the effect that he was studying along with second defendant and is residing in the back street to the family of appellant/plaintiff and the defendants and that he is their family friends and used to attend the family functions of respective families and that he participated in effecting a partition in 1979 in the family of appellant/plaintiff and according to him though Ex.D.8-Agreement was signed by all the parties, the stamp agreement drawn up pursuant thereto, was not signed by D.1 and D.2 because of the fact that house No.14, Subraya Gramani Street was a family house and had a sandalwood gold frame and was of sentimental value. In fact, it is the categorical evidence of D.W.2-Govindadas that when he saw Alameluammal in Marriage 1986, she did not told him anything about executing any document in respect of the property of Muthuswamy and she only complained that she was not receiving any amount and that her son-in-law was jobless. It transpires from Ex.D-8-Agreement that 11 panchayatdars have signed in the said document and that Ponnusamy, Alamelummal, Viswanathan, Vinayagam and Mani have signed. However, in Ex.C.1 xerox copy of the Will dated 17.09.1986 of the Sub Registrar’s Office, Ambattur refers to the presenter signature in Tamil as Alamelummal. But in Ex.P.1 certified copy of registration copy of original Will dated 17.09.1986, the signature of the testatrix is mentioned as “Alamelammal in Tamil. On a comparison of the signature testatrix Alamelu made by this Court as per Ex.D.8-Agreement and that of Ex.C.1 certified copy of Will dated 17.09.1986, they do not tally and in fact the signature found in Ex.D.8 as “Alamelummal” and that of the signature in Ex.C.1 as “Alamelummal” in Tamil, there is a marked difference and this creates a suspicion and genuineness of the said Will.
46.As far as the present case is concerned, Section 89 of the Indian Succession Act, 1925 will not apply and generally the same will apply to a case where the Will is so indefinite that it is not possible to give any definite intention to it at all. In fact, a comparison of signature is a way of ascertaining the truth and definitely a Court is competent to compare disputed signature/writing of an individual with others which are admittedly to be in her writing. Suffice it to point out that “proof to the satisfaction of Court” means implied Judgment of the Court and not mere presumption, in our considered view. It is the evidence of P.W.2-Kuppusamy that he revealed about the execution of the Will to the appellant/plaintiff on the 8th or 9th day after the death of the testatrix and that the testatrix did not inform where she kept the Will and after information to appellant/plaintiff, he took the Will who asked him about the Will and that the appellant/plaintiff himself brought the Will to him and that the appellant/plaintiff told him about the loss of the Will after one or two months. However, the evidence of P.W.1-Mani viz., appellant/plaintiff is that at the time of 8th day ceremony of his mother’s death he came to know about the Will executed by his mother and that his sisters removed the sarees from the box and they took the Will and he gave it to second respondent/second defendant. Thus in regard to the taking out of the Will, there is a clear contradiction between the evidence of P.W.2-Kuppusamy (attestor) and that of P.W.1-Mani/appellant/plaintiff and as such, it is evident that P.W.1-Mani (appellant/plaintiff) is not coming out with truth, in our considered opinion.
47.According to P.W.1 Mani’s evidence is that first and second defendant alone got the mortgage amount of Rs.10,000/- which was spent for the marriage on second defendant and that he does not remember when the property was mortgaged and when the second defendant got married.
48.D.W.1-Viswanathan (deceased)/first defendant in his evidence has stated that in the year 1973 his parents and themselves mortgaged the subject matter of the Will property for Rs.10,000/- and after the appointment of receiver viz., the second respondent/second defendant, the mortgage property was redeemed. However, when Ex.P.1-Will dated 17.09.1986 refers to partition and the death of deceased son Muthuswamy in 1980 and also makes a significant reference to the settlement of 1937 by the Alamelu’s father-in-law Kanniyappa Gramani, the details regarding mortgage made in 1973 and its discharge are conspicuously absent in the said Will, which circumstance is not in favour of the appellant/plaintiff. Though a plea is taken by the appellant/plaintiff that in the written statement of first defendant, the Will is challenged only on the ground of duress, coercion, undue influence and fraud and that the respondents never disputed the signature of testatrix Alamelu, it is to be pointed out that the Court is entitled to compare the signature in order to ascertain the truth and in this regard the subjective satisfaction of the Court is of primordial importance, on the facts and circumstances of the present case.
49.In regard to the other plea raised on behalf of the appellant/plaintiff that dis-inheritance of others cannot be a suspicious circumstance it is to be pointed out that when the appellant/plaintiff takes the benefit under the Will, it is for him to prove and establish that the Will of the testatrix, Alamelu is natural and free from suspicious circumstances. Another important aspect to be noted in the case is that P.W.1-Mani viz., appellant/plaintiff has availed leave on 17.09.1986, the day on which the Will of Alamelu got registered in the Sub Registrar’s Office. Though P.W.1-appellant/plaintiff in his evidence has deposed that he availed the leave on 17.09.1986 for the purpose of visiting his Village, his evidence is hardly to be believed, in the considered opinion of this Court. Admittedly, at the time of Will dated 17.09.1986 Alamelammal, the mother of P.W.1-appellant/plaintiff was about 70 years old. In fact, though P.W.1-appellant/plaintiff has stated in his evidence that he has not found out to whom his mother gave instructions for preparing the Will and that he does not know as to who typed the Will and though P.W.2-Kuppusamy in his evidence has stated that he was not told as to who drafted the Will etc., their evidence are not worthy of acceptance by this Court, in our considered opinion. As a matter of fact, P.W.2-Kuppusamy and the second attesting witness Palani and the third attesting witness Rajendran are only interested persons [P.W.2 residing opposite to P.W.1’s house, Rajendran, the attestor working as Checking Inspector in the Transport Corporation and other attestor, Palani being a friend of P.W.1]. Furthermore, a perusal of signature of Alamelammal in Tamil found in Exs.D.2 to D.4 are quite different from that of Ex.C.1 Xerox copy of the Will produced by witness Ravichandran, Junior Assistant of Sub Registrar’s Office, in our considered opinion.
50.Looking at from any angle and in the light of our detailed discussions mentioned supra and on consideration of available material evidence on record, we are of the considered opinion that the appellant/plaintiff as propounder of the Will has not explained the suspicious circumstances surrounding the execution of the Will and in the case on hand, the appellant/plaintiff has failed to discharge his onus as required by law that the said Will dated 17.09.1986 was executed by the testatrix, Alamelu and the unnaturalness of the Will in question is a good reason for refusing the grant of probate and in that view, the OSA fails and the same is dismissed, confirming the Judgment passed learned Single Judge in T.O.S.No.20 of 1990 dated 24.01.2001. Bearing in mind the facts and circumstances of the case, the respective parties are directed to bear their own costs. Consequently, connected miscellaneous petitions are also dismissed.
sgl