BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/03/2010 CORAM THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI S.A.(MD)No.217 of 2004 and C.M.P.(MD)No.928 of 2004 Bhagavathiammal ... Appellant/ Appellant/ 8th Defendant Vs 1.Marimuthu Ammal 2.Kolappa Konar 3.Kshetra Bala Konar 4.Gomathi Ammal 5.Nagamony 6.Thangam 7.T.Kannaki ... Respondents Plaintiff and Defendants 1,3,5,6,9&10/ Respondents PRAYER The Appeal is filed under Section 100 of C.P.C. against the judgment and decree dated 12.07.2004 in A.S.No.15 of 2004 by the First Additional Subordinate Judge, Nagercoil, confirming the judgment and decree dated 25.11.2003 in O.S.No.249 of 1981 by the Principal District Munsif, Nagercoil. !For Appellants ... Mr.K.Sreekumaran Nair ^For Respondents ... Mr.S.Ponsenthil Kumar for R1 Mr.Ajmal Khan for R5 :JUDGMENT
The second appeal is preferred against the judgment and decree dated
12.07.2004 in A.S.No.15 of 2004 by the First Additional Sub Judge, Nagercoil,
confirming the judgment and decree dated 25.11.2003 in O.S.No.249 of 1981 by the
Principal District Munsif, Nagercoil. The 8th defendant is the appellant. The
suit is filed for declaration and for recovery of possession and profits.
2.The brief facts of the case are as follows:
The plaintiff is the sister of the defendants 1 to 3 and there was one
more brother viz., Mani @ Ramachandran, who was a mentally ill person, who died
on 13.04.1980. Their mother Issakkiamma executed a “Will” dated 18.03.l977 and
she died on 04.01.1978. According to the said “Will”, after the death of the
said Ramachandran the suit property is to devolve on the plaintiff. The said
Ramachandran was under the care and custody of the plaintiff. After the death
of the said Issakkiammal the defendants 1 to 3 did not hand-over the property to
the plaintiff. Even after the death of the said Ramachandran, the defendants
failed to hand over the property to the plaintiff. The defendants 4 and 5 are
in possession of the property. Therefore, the suit is filed for declaration of
title and for recovery of possession.
3.The suit was resisted by the defendants and all the 8 defendants have
filed separate written statements. The defendants 1 to 3 had denied the “Will”
dated 18.03.1977 and they have also denied that the said Ramachandran was a
mentally ill patient and the second defendant would state that the said
Ramachandran had leased out the first item of the property to one Nagamani in
the year 1978 and the said Ramachandran had also executed a “Will” dated
01.04.1980 in favour of the second defendant and the second defendant has sold
the property by a sale deed 14.07.1981 and the plaintiff has no right or title
over the property.
4.The 6th defendant has supported the case of the second defendant as he
is the purchaser from him and the 5th defendant would state that she is not a
necessary party to the suit as her husband Nagamani is a lessee under the said
Ramachandran for the first item of the suit property.
5.The 4th defendant would state that as per the “Will” dated 18.03.1977,
after the death of the said Issakiamai her husband Sundalayandi Konar was in
possession of the property for his life time and after his death, the persons
mentioned in the “Will” has to enjoy the property and the said Sudailaiandi
Konar is alive. The E Schedule of the property was given to the said
Ramachandran. The 4th defendant has an interest over the 2nd item of the
property and he was allowed to possess and enjoy the property.
6.The 7th defendant would also state that the said Issakkiamma had
executed a dated 29.08.1968 “Will” and bequeathed the property to the children,
Kolappa Konar, Setharabalan, Krishnan, Marimuthu and Bagavathiammal. The said
Ramachandran was given certain properties and he was not mentally well and the
8th defendant was taking care of him and treating him and by a “Will” dated
29.08.1968 the 7th defendant has become the absolute owner of the property. On a
settlement deed dated 29.07.1982, the 7th defendant has given the property to
the 8th defendant. He denied the suit will.
7.The 8th defendant would also support the averments of the 7th defendant
and would state that she is entitled for the suit property. The plaintiff filed
a reply statement denying the averments made by the defendants.
8.Based on the above averments, the learned District Munsif framed as many
as 16 issues and on basis of the oral and documentary evidence found that the
defendants have created many documents after the death of the Issakkiamma and
the 8th defendant has created a document which is not believable and found that
the plaintiff has proved her case and had decreed the suit.
9.Aggrieved by which, the 8th defendant alone had preferred an appeal
before the Sub Court, Nagercoil and the First Appellate Court had initially
remanded the matter for proving of the suit will and once again the trail court
decreed the suit and on appeal, the first appellate court once again considered
all the evidences and had concurred with the Trial Court and has dismissed the
appeal against which, the second appeal is filed on various grounds and this
court has framed the following substantial questions of law:
“a)Whether the finding of the courts below that the Ex.A1 was proved is correct
in spite of the fact that the plaintiff did not examine both the attesters and
one of the attesters who was impleaded specifically denied the execution of Will
Ex.A1?
b)Whether the lower court is right in upholding the “Will” merely on the
basis of an opinion of the expert that the thumb impression contained in the 6th
page of Ex.A1 “Will” tallied with that of the admitted thumb impression and
Issakkiamma especially when there was clear evidence in Ex.B31 that the original
“Will” had only 4 pages not 6 pages?
c)Whether the courts below erred in following the principle that the
propounder of the Will has to prove the same?”
10.The admitted facts are as follows:
The 7th defendant one Sudalaiandi Konar (since died) and Issakkiamma had
four sons and two daughters. The defendants 1 to 3 are the sons and the
plaintiff Marimuthammal and the 8th defendant Bagavathiammal are the daughters
and one Mani @ Ramachandran was also a son. Issakkiamma executed a “Will”
dated 28.09.1968 under Ex.B.31. The said Mani @ Ramachandran was a mentally ill
patient and the suit property was allotted to him. According to the plaintiff,
Issakkiamma executed a “Will” dated 18.03.1977, Ex.A1, under which, the earlier
will was cancelled and the suit property was allotted to the 7th defendant for
his lifetime and the said Mani @ Ramachandran to be taken care of from the
income and thereafter if he becomes a normal person the property has to go to
him and in the event of his death, the property is to devolve upon the
plaintiff. Under this “Will” the earlier “Will” was cancelled and there were
many transactions and proceedings between the plaintiff and her sister regarding
the suit property and both were claiming title through the respective “Will”.
There were many transactions and also claims that they were the persons taking
care of the said Mani @ Ramachandran who died on 13.04.1980. The plaintiff
claiming title and possession filed a suit in the year 1981 after a remand by
the Appellate Court now it has reached the second appeal stage of litigation
and the sisters are fighting for the last 30 years.
11.However the plaintiff was called upon to prove the suit will. As both
the attestors were not alive to prove the execution of the “Will”, the Trial
Court proceeded under Section 69 of the Indian Evidence Act. The Trial Court,
after remand from the Appellate Court had subjected the “Will” for an expert
opinion to compare with the available thumb impression of the said Issakkiamma
and held that the “Will” is proved in the manner known to law. Both the courts
below have held that Ex.A1, the disputed “Will” dated 18.03.1977 was proved by
the propounder and the correctness of such finding is questioned in this second
appeal.
12.Mr.K.Sreekumaran Nair, learned counsel for the appellant would submit
that the execution of the “Will” was not proved in accordance with Section 68 of
the Evidence Act and Section 63 of Indian Succession Act. The learned counsel
pointed out that the 7th defendant who is one of the attestor in the “Will” had
denied the execution of the “Will” and the Courts below upholding the “Will” on
the basis of an opinion of the expert is against law and therefore, the “Will”
has to be rejected. The learned counsel also pointed out that Ex.A1 is a
manipulated document and therefore, the reliance ought not have been placed on
the disputed “Will”.
13.The learned counsel relied on the following decisions reported in :-
1)2002(1)LW 460 (N.Kamalam (dead) and another Vs. Ayyasamy and another) wherein
the Supreme Court has held as follows:
“25.The requirement of attestation presently in the Country is statutory in
nature, as noticed herein before, and cannot as such be done away with under any
circumstances. While it is true that in a testamentary disposition, the intent
of the attestor shall have to be assessed in its proper perspective but that
does not however mean and imply non-compliance of a statutory requirement. The
intention of the attestor and its paramount importance cannot thwart the
statutory requirement. …”
2)2003(1) CTC 308 (Janki Narayan Bhoir Vs. Narayan Namdeo Kadam) wherein the
Supreme Court has held as follows:
“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.”
3)2005(1) CTC 11 (Janaki Devi Vs. R.Vasanthi and others) wherein this Court has
held as follows:
“…Sections 69 and 71 of the Indian Evidence Act is an exception to the general
rule contained in Section 68 of the Indian Evidence Act. Under Section 69 of
the Indian Evidence Act, if no attesting witness is found it can be proved by
other evidence that the attestation of one attesting witness at least is in his
handwriting and that the signature of the person executing the document is in
the handwriting of that person. Section 71 of the Indian Evidence Act is to meet
the situation, where it is not possible to prove the execution of a Will by
calling the attesting witness, though alive, or when the attesting witnesses
have been called, they deny or fail to recollect the execution of the document.
In that way, Section 71 of the Indian Evidence Act is incorporated to safeguard
the mandatory provisions of Section 68 of the Indian Evidence Act. Section 71
of the Indian Evidence Act is only to give assistance and come to rescue of a
party who has taken steps to get attesting witness to give evidence, but he
failed to such witness denied or failed to recollect the execution of the Will.
This is only with a view to prove the due execution by “other evidence”….”
4)AIR 2008 SC 2485 (Babu Singh and others V. Ram Sahai @ Ramsingh) wherein the
Supreme Court has held as follows:
“14.It would apply, inter alia, in a case where the attesting witness is either
dead or out of the jurisdiction of the court or kept out of the way by the
adverse party or cannot be traced despite diligent search. Only in that event,
the Will may be proved in the manner indicated in Section 69, i.e.,by examining
witnesses who were able to prove the handwriting of the testator or executant.
The burden of proof then may be shifted to others.”
14.On the contrary, Mr.Pon Senthil Kumar, learned counsel for the first
respondent would submit that both the courts below have tested the “Will” and
has come to the conclusion that the “Will” was executed in accordance with law
and therefore, the finding cannot be challenged in the second appeal. The
learned counsel pointed out that when both the attesters were not available, the
plaintiff is bound to prove the “Will” in some other means and therefore, the
thumb impression has been subjected for expert opinion and that proved to be the
thumb impression of the executant.
15.Heard the learned counsel for the appellant and the learned counsel for
the respondent and perused the material on record.
16.Section 63 of the Indian Succession Act reads as follows:
“63.Execution of unprivileged Wills.-Every testator, not being a soldier
employed in an expedition or engaged in actual warfare (or an airman so employed
or engaged) or a mariner at sea, shall execute his will according o the
following rules:-
(a)The testator shall sign or shall affix his mark to the Will, or it shall be
signed by some other person in his presence and by his direction.
(b)The signature or mark of the testator, or the signature of the person signing
for him, shall be so placed that it shall appear that it was intended thereby to
give effect to the writing as a Will.
(c)The Will shall be attested by two or more witnesses, each of whom has seen
the testator sign or affix his mark to the Will or has been some other person
sign the Will, in the presence and by the direction of the testator, or has
received from the testator a personal acknowledgement of his signature or mark,
or of the signature of such other person; and each of the witnesses shall sign
the Will in the presence of the testator, but it shall not be necessary that
more than one witness be present at the same time, and no particular form of
attestation shall be necessary.”
17.Section 68, 69 and 71 of the Indian Evidence Act read as follows:
“68.Proof of execution of document required by law to be attested.-If a document
is required by law to be attested, it 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 evidence:
(Provided that it shall not be necessary to call an attesting witnesses in proof
of the execution of any document, not being a Will, which has been registered in
accordance with the provisions of the Indian Registration Act, 1908 (16 of
1908), unless its execution by the person by whom it purports to have been
executed is specifically denied.)
69.Proof where no attesting witness found.-If no such attesting witnesses can be
found, or if the document purports to have been executed in the United Kingdom,
it must be proved that the attestation of one attesting witness at least is in
his handwriting, and that the signature of the person executing the document is
in the handwriting of that person.
71.Proof when attesting witness denies the execution.-If the attesting witness
denies or does not recollect the execution of the document, its execution may be
proved by other evidence.”
18.Ex.A1 is the registered “Will” dated 18.03.1977 which was executed by
the said Issakkiamma and under this “Will” Schedule-C which is the suit
property, has been allotted to Mani @ Ramachandran on condition that her husband
Sundalaiandi Konar (7th defendant, since died) has to enjoy the said property
during his life time with the help of her daughter Marimuthammal (plaintiff) and
to maintain the said Mani @ Ramachandran, who is mentally ill and if the said
Mani @ Ramachandran has become normal, he is entitled to take the property and
in the event of his death, the said Marimuthammal has to enjoy the property
absolutely. There were two attesting witnesses in the said “Will” and one of
the attesting witness is her husband Sudalaiandi Konar himself.
19.When the suit was filed, Sudalaiandi Konar was alive and later he was
impleaded as a party to the suit. The suit was taken up for trial and the
plaintiff was examined on 14.12.1983. The 7th defendant who was aged 85 years
at the time of filing of the suit and was living with the appellant and he
sailed along with the appellant and had denied the execution of the “Will” and
hence, was not examined as one of the attester by the plaintiff. As far as the
other attester is concerned he has signed in Malayalam and the plaintiff has not
even mentioned his name. The name and address are also not available in the
document. One Antonysamy of Nagercoil was the scribe of the “Will” and he was
examined as P.W.3. He would say that the first attesting eitness was one
Parameswaran Pillai son of Chellappan Pillai of Suseendaram and he is not alive.
Therefore, the plaintiff has no other alternative except to invoke Section 69 of
the Indian Evidence Act.
20.It is well settled that under Section 69 of the Act the plaintiff has
to examine some one who is acquainted with the handwriting of at least one
attesting witness and such witness should depose that signature of the attesting
witness found in the “Will” is that of the attesting witness whose signature he
is familiar with and the signature of the testator whose signature he is
familiar with.
21.In 2008 (14) SCC 754, the interpretation of Section 69 of the Act, was
analysed by the Supreme Court. The case before the Supreme Court was that a
“Will” was executed by one ‘X’ in favour of the plaintiff on 25.09.1991 and the
same was duly registered on the same date and the said “Will” was attested by
two witnesses ‘Y’ and ‘Z’ and one of the attesting witness ‘Y’ died and the
other witness ‘Z’ was alive but has joined hands with the opposite party and
could not be examined and the scribe of the “Will” was examined. However, no
steps were taken to examine ‘Z’ and a statement was made by the counsel for the
plaintiff before the First Appellate Court that ‘Z’ has joined hands with the
opposite party. Under those circumstances, the Supreme Court has held that
Section 69 of the Act, have no application.
22.In 2003(1) CTC 308, the Supreme Court has held as
“11.Section 11 of the Evidence Act is in the nature of a safeguard to the
mandatory provisions of Section 68, Evidence Act, to meet a situation where it
is not possible to prove the execution of the will by calling attesting
witnesses, though alive. This section provides that if an attesting witness
denies or does not recollect the execution of the Will, its execution may be
proved by other evidence Aid of Section 71 can be taken only when the attesting
witnesses, who have been called, deny or fail to recollect the execution of the
document to prove it by other evidence. Section 71 has no application to a case
where one attesting witness, who alone has been summoned, has failed to prove
the execution of the will and other attesting witnesses though are available to
prove the execution of the same, for the reasons best known, have not been
summoned before the court. It is clear from the language of Section 71 that if
an attesting witness denies or does not recollect execution of the document, its
execution may be proved by other evidence. …”
23.Therefore, the facts of the case dealt in the above two decisions are
not applicable to the facts of the case on hand.
24.In 1997(2) CTC 369 (Mohammed Mohideen Vs. Muthukumara Thevar and
another), a learned Single Judge of this Court held as follows:
“2.Section 69 of the Evidence Act requires the person to prove that the
signature of the executor is in his handwriting and the defendant has let in
evidence by examining DW.2 that the executor has signed the will in his presence
and the attesting witnesses have also signed in his presence. This evidence has
not been challenged in the cross-examination and as such the courts below have
accepted this evidence and found that the will is genuine. I do not find any
irregularity in the finding of both the courts below with regard to the
genuineness of the will.”
25.The decision of the learned Single Judge was challenged by way of
filing O.S.A. before a Division Bench and the same was reported in 2005(1) CTC
11. The Division Bench after referring various decisions upheld the finding of
the learned Single Judge, where the Single Judge had held that the examination
of the scribe to satisfy the two conditions of Section 69 of the Act is enough
to prove the “Will”.
26.In 1999(3) CTC 378 (R.Vasanthi Vs. Janaki Devi and others), this Court
has held as follows:
“…These two decisions based on Section 69 would go to show that in the
circumstances when both the attesting witnesses could not be examined, the
signature of any one of the attesting witnesses in his handwriting can be proved
through a witness who known the signature of the said attesting witnesses. The
plaintiff as P.W.1 has clearly stated that she knows the signature of both
attesting witnesses and identified their signatures as she was present at the
time of attestation of Ex.P.1 and as such the proof required under law has been
satisfied by the plaintiff.”
27.It is well settled that a “Will” has to be proved as required under law
with regard to Section 63 of the Indian Succession Act and under the provisions
of Section 68 of the Indian Evidence Act. Section 69 of the Act comes into the
application where no attesting witness is found. It is an enabling provision
for the propounder to prove the “Will” when there is no attesting witness found.
This provision will be applicable in a case where the attesting witness is
either dead or out of the jurisdiction of the Court or kept out of the way by
the adverse party or cannot be traced out despite diligent search. Under
Section 68 of the Act, the propounder is expected to call upon to examine at
least one attesting witness in addition to lead evidence to explain the
surrounding suspicious circumstances if any raised by the opposite party.
However, under Section 69 of the Act the propounder is called upon to examine
witness, who are able to prove the handwriting of at least one attesting witness
and the handwriting of the testator and the burden of prove is then shifted to
others, who denies the execution of “Will”. Section 71 of the Indian Evidence
Act, comes into application, when the attesting witness is summoned and while
examination, denies or does not recollect the execution of the document.
Therefore, if the mandate under Section 68 of the Act could not be performed
then Section 69 of the Act lends help to the propounder and if the propounder
examines any one person to prove that the attestation of the one attesting
witness at least is in his handwriting and the signature of the person executing
the document is in the handwriting of that person.
28.In the present case, one attesting witness is dead and another
attesting witness was arrayed as 7th defendant and had denied the execution of
the “Will” itself and he also died during the pendancy of the trial. Had he
been summoned to give evidence, he would have denied the execution of the
document and then Section 71 of the Act would have been pressed into service.
Therefore, in the present case Section 69 of the Act alone is applicable.
29.P.W.3 the scribe was examined and he had stated that the executant had
affixed her thumb impression in Ex.A1 and the attesting witnesses had also
signed in his presence. The thumb impression of the executant was also
subjected for examination by an expert and he has opined that the thumb
impression found in Ex.A1 on comparison to the thumb impression of the executant
in other documents were found to be the same.
30.The difference between Section 68 and Section 69 of the Act is, in the
former, one attesting witness at least has to be called for for the purpose of
proving its execution and in the later, it must be proved that the attestation
of one attesting witness at least is in his handwriting and the signature of the
person executing the document is in the handwriting of that person. Section 69
of the Act does not specify the mode of such prove. In other words, the
handwriting can be spoken by a person who has acquaintance of the handwriting or
the signature can be proved by comparison with the admitted handwriting or the
signature of the person executing the document.
31.Though the scribe cannot speak about the execution of a document, he
can always speak about the attestation and the signature of the attesting
witness and the executant and he is a competent witness when section 69 of the
Act is pressed into service.
32.In the present case, the scribe has spoken about attestation of one
attesting witness and the thumb impression of the executant and further more the
thumb impression in the disputed document is compared by an expert with the
admitted thumb impression of the executant and found to be the same. Therefore,
the requirement under Section 69 of the Act is complied with. In order to prove
a will the propounder is expected to examine at least one attesting witness in
addition to lead evidence to explain the surrounding suspicious circumstances if
any raised by the opposite party. As stated above the the requirement under
section 69 of the Act has been complied with and as far as the evidence to
explain the surrounding suspicious circumstances, both the courts below have
concurrently found on facts that the plaintiff has explained the circumstances
under which the testator had cancelled the earlier will and executed the suit
will. The courts below have rightly found that the execution of the “Will” is
proved and I have no reason to interfere with. The question of law are answered
accordingly.
33.In the result, the appeal is dismissed and and the judgment and decree
of the Appellate Court is confirmed. No costs. Consequently, connected M.P.is
closed.
nbj
To
1.The First Additional Subordinate Court,
Nagercoil.
2.The Principal District Munsif, Nagercoil.