JUDGMENT
Prabha Sridevan, J.
1. One Alagappa Padayachi had three sons, Sellamuthu, Murugan(D1) and Arumuga (the plaintiff). He died intestate leaving behind joint family properties. Sellamuthu died intestate in 1958 leaving behind his wife Chinnapillaiammal. They had no issues. He was the Manager of the joint family properties till his death and thereafter the first defendant was managing the joint family properties. Chinnapillaiammal died in 1972. All the properties are enjoyed by the first defendant in his capacity as Manager. About 5 or 6 years before the suit the first defendant permitted the plaintiff to enjoy some items of the suit property. There was no partition by metes and bounds but enjoyment was as per convenience. At the insistence of defendants 2 to 5 the first defendant had concocted some false documents to deny the plaintiff his half share in the property. When he came to know about that the plaintiff made a claim for partition, not only did the first defendant deny his right but he also alleged that Chinnapillaiammal had left a Will, in which her share was bequeathed to defendants 4 and 5 and that the plaintiff has been given his share in 1960 itself and therefore, he was not entitled to any share in the suit properties. But the case regarding the Will is a false one. No such document was executed by Chinnapillaiammal and therefore, the plaintiff is entitled to half share since on the death of the brother Sellamuthu and his wife Chinnapillaiammal the plaintiff and the defendant would be equally entitled to that share also and therefore, the joint family property of Alagappa Padayachi must be divided into two equal shares. This in brief is the case of the plaintiff.
2. The plaintiff is the first respondent herein. The defendants 1 to 5/appellants 1 to 5 are Muruga Padayachi, the brother of the plaintiff, his two wives, Thulsiammal and Palaniammal, and the two sons through Palaniammal. The other respondents are alienees of particular items of the suit property.
3. The reference to parties will be in accordance with their array in the suit.
The defendants 1 and 4 filed their written statement which was adopted by the defendants 2,3 and 5. According to them, only item Nos. 1 and 2 of the suit properties were joint family properties and it was true that Sellamuthu died intestate. His wife died in 1973. She had left behind a Will dated 06-10-1972. In 1960, the suit properties were divided into three amongst the plaintiff, the first defendant and Chinnapillaiammal and since 1961 they have been in enjoyment of their separate shares. It is wrong to describe the family as a joint family. The sale deeds also refer to the partition. Several of the suit properties have not been included in the plaint schedule. The seventh defendant claimed to have purchased item No.16 of the suit property from the plaintiff and prayed for an equitable relief to be granted in respect of the property purchased by him. The ninth defendant also claimed that there was an exchange of property between herself and the plaintiff and she was subsequently exonerated. The defendants 8,10 and 11 also claimed to have purchased item Nos.2, 13 and 15 of the suit properties and prayed for an equitable allotment. The third defendant filed an additional written statement claiming that item Nos.13 and 35 ought not to have been included in the plaint for partition and the suit should be dismissed as regards these items. The fourth defendant filed an additional written statement claiming that item Nos.23 and 24 were not joint family properties and that they should be deleted from plaint schedule, as also item No.21. It was also his case that item Nos.22 to 25 were not properties liable for partition.
4. The Trial Court decreed the suit as prayed for except insofar as suit item No.12. The Trial Court disbelieved the case of the earlier partition and came to the conclusion that the Will alleged to have executed by Chinnapillaiammal was not a genuine one and therefore, held that the plaintiff was entitled to a half share in the suit properties. Against this, the appeal has been filed.
5. The question in this first appeal is whether the prior partition has been proved and whether the Will dated 16-10-1972 has been duly proved to be genuine.
6. The case of the defendants is that in 1960, there was a partition and the brothers had been paying taxes etc. separately and also enjoying the properties separately. It is the plaintiff’s case that some property was enjoyed separately because it was convenient to do so and not because there was a severance in status. In his chief examination, the plaintiff, P.W.1 has stated that he asked for partition and that his elder brother, namely the first defendant had given him two acres to take care of. Though he asked for partition of the entire property, that was not done. He has also stated that the tax assessment is single. His son P.W.2 has also given evidence that there was no division by metes and bounds. In cross-examination he has stated that they are paying taxes separately and there are two motors in the backyard. P.W.3, an independent witness has been examined and he had supported the case of the plaintiff that the first defendant had said that the partition would be effected later after the house is built and some lands are bought and that for the present the respondent could enjoy some of the properties and later a complete partition would be effected. D.W.1, the first defendant had said in his chief examination that the families were joint about 4 to 5 years after Sellamuthu died which is in 1958, but in the cross-examination he had stated that there was disagreement between him and the plaintiff and from 1975 there is separate cultivation. In his own words,
“1975 Kjy; jdpj;jdpna gaph; bra;fpd;nwhk;/ MBy; epy’;fs; mse;J rhpfl;o ,d;Dk; bfhLgltpy;iy/ thjpaplk; rpy mapl;l’;f]s fhl;o xg;g[f;bfhs; vd brhy;yg;gl;lJ/
/// vd; nghpy; Vw;gl;l fpua’;fspy; thjpf;F ghfk; cz;L vd;gJ cz;ik jhd;/
/// 1975 Kjy; jdpj jdpna jhd; jPh;it itj;J cs;shh;fs;/ mjw;F Kd;dh; ehd; jhd; jPh;it brYj;jp te;njd;/ bkhj;j jPh;it vdf;Fj; bjhpahJ/
/// 1975f;F gpd;By; jhd; jdpj;jdp rhg;ghL/ mjw;F Kd;dh; xnu rhg;ghL jhd;/
/// 5/6/72y; jhd; rpd;dgps;]s mk;khs; ,we;jhs; vd;why; vdf;F bjhpahJ/@
There is therefore, absolutely no material for accepting the case of partition in 1960. Even the evidence of D.W.1 only supports the case of the plaintiff that only for convenience there was separate enjoyment.
7. The learned counsel for the appellants would submit that the evidence has to be read as a whole and for this reliance was placed on S. Sundaresa Pai Vs. Sumangala T. Pai and Chikkam Koteswara Rao Vs. Chikkam Subbarao (1970 II MLJ 127 (SC)). It was also pointed out that sometimes since questions are not recorded it is not possible to decide whether the answers were made in response to questions or to suggestions. The evidence of D.W.2, who is the fourth defendant also does not support the case of an earlier partition because he does not know whether there was an early partition,
@ghfk; gphpe;jJ Fwpj;J vdf;F
nehpy; bjhpahJ/@
In fact one gets a clue even in the evidence of D.W.3. He is the attestor of Chinnapillaiammal’s Will and he indicates what Chinnapillaiammal told him about the properties bequeathed.
@rpd;dgps;]s ,we;J 13 tU&’;fs; Mfpd;wd/ /// vy;yh ,lj;jpy; 3y; 1 ghfk; vd brhd;Bh;fs;/@
If indeed there had been a partition in 1960 and separate properties had been allotted to Chinnapillaiammal, the plaintiff and the first defendant, this answer would be meaningless. It is relevant to note that this witness is none other than the brother of Chinnapillaiammal and if in 1960, she had been allotted separate properties then he should know. So, though Exs-B12 and B27 would show that for certain properties @jPh;it@ had been paid in the name of Chinnapillaiammal, the fact that she had stated at the time of execution of the Will that she is giving her one third share to defendants 4 and 5 would also go to show that there was no earlier partition. Exs-B12 and 27 would only indicate separate enjoyment for convenience. The defendants have also not made any effort to examine an independent witness, who would speak about the 1960 partition. So when the parties do not dispute that there was a joint family the presumption is that the joint status continues until the person, who pleads partition proves that there was severance. In this case neither the oral nor the documentary evidence adduced on the side of the defendants show that there was a partition in the year 1960. It was also submitted that some of the properties would show the separate enjoyment because the boundaries specifically indicate Muruga Padayachi’s land or Arumuga Padayachi’s land as the case may be and that there was no occasion to refer to these boundaries as lands belonging to an individual person if the property had continued to be the joint family property. The answer to this is that all the lands standing in the name of individuals, though not included originally in the plaint schedule, have now been included by amendment. The exhibits also show that even those properties which have been alienated to other defendants, who do not belong to the family, have been included so that an equitable allotment can be made at the time of final decree. Therefore, the respondent is entitled to claim partition but his share will depend upon the next issue which is the Will.
8. In the plaint, it was stated that Chinnapillaiammal lived amicably with the rest of the family members until she died and therefore, she would not have executed a Will on 06-10-1972 and that there was no necessity for the same and this document according to the plaintiff was a forged document and it was stated that Chinnapillaiammal died in 1972 itself. The defendants on the other hand claimed that Chinnapillaiammal died in Vaikasi 1973 and not in 1972 and that she had executed a Will dated 06-10-1972 giving her share in the suit property to the second defendant Thulsiammal for her life time and thereafter to defendants 4 and 5, the children of Palaniammal, the third defendant. This Will was marked as Ex-B22. The Will was executed on 06-10-1972 and registered on 11-10-1972. The testatrix had stated in the Will that she has no issues and since she has Asthma she would like to make arrangements with regard to the property. The Will was attested by Perumal Padayachi and Arumuga Padayachi and written by one Perumal of Thittakudi. Regardless of any other circumstances surrounding the Will, the Will has to be thrown out if the plaintiff proved his case that Chinnapillaiammal died in 1972.
9. Ex-A11 is the death certificate produced by the respondent. This shows that Chinnapillaiammal, W/o. Sellamuthu died on 05-06-1972 and the date of registration is 07-06-1972. It is attested by the issuing authority. The defendants on their side have produced Ex-B24, 25 and 26 to show the correct date of death. Ex-B24 is the death register of the year 1973 of Pothiramangalam Village. In that serial No.20 would show that on 05-06-1973, Chinnapillaiammal, W/o. Sellamuthu resident of Pothiramangalam had died. The cause of death is breathing difficulties and the informant is Muruga Padayachi, the first defendant. Ex-B25 is the death certificate. The oral evidence with regard to her death was as follows:
@rpd;dgps;]s 1972y; rhftpy;iy vd;Wk; 1973y; jhd; gpwe;jhh; vd nehl;O!; bfhLj;J cs;sJ “hgfk; ,y;]y/
/// itfhrp te;jhy; rpd;dg;gps;]s ,we;j 13 tU&’;fs; ,Uf;Fk; vd;gJ cz;ik jhd;/@
Therefore, according to him, come Vaikasi it would be thirteen years since Chinnapillaiammal died. The evidence is recorded in 1996 and it is in accordance with the defendant’s claim that Chinnapillaiammal died only in 1973. Ofcourse, plaintiff’s case is, Ex-A11 was prepared for the purpose of this case. According to the evidence of both sides Chinnapillaiammal was extremely attached to P.W.2, son of plaintiff. P.W.2 has stated in his chief examination that Chinnapillaiammal died on 05-06-1972. But in cross, he would state thus:
@,we;jhs; vd;gjw;F efy; vLj;njd;/ ,jid nfhh;l;oy; jhf;fy; bra;atpy;iy/
/// Mgprpy; 1972 ,we;;jjhf brhd;Bh;fs;/ jhYf;fh Mgprpy;jhd; tprhhpj;njd;/
/// ,we;j ehs; Fwpj;J itj;J cs;nshk;/ bkha;lhg;g[ cz;L/ v’;f tPl;oy; cz;L/@
So he admits that there is a record of her death in his house but he has not produced it. D.W.1 had stated that Chinnapillaiammal died thirteen years ago.
“rpd;dgps;]s mk;khs; capUld; ,y;iy/ 13 tU&k; Kd;dh; ,we;jhs;/
/// rpd;dgps;]s mk;khs; ifnuif jhd; itg;ghh;fs;/ rhl;rpfs; if nuif itg;gj]dg; ghh;j;jhh;fs;/ rhl;rpf; ifbaGj;J bra;tjpy;]y/ rpd;dgps;]s mk;khs; ghh;j;jhh;/ bgUkhs; gilahr;rp. MWKf gilahr;rp Mfpath;fs; if vGj;J bra;jhh;fs;/
/// 1975 Kjy; jdpj;jdpna gaph; bra;fpd;nwhk;/ MBy; epy’;fs; mse;J rhpfl;o ,d;Dk; bfhLgltpy;iy/ thjpaplk; rpy mapl;l’;f]s fhl;o xg;g[f; bfhs; vd brhy;yg;gl;lJ/
/// vd; nghpy; Vw;gl;l fpua’;fspy; thjpf;F ghfk; cz;L vd;gJ cz;ik jhd;/
/// 1975 Kjy; jdpj; jdpna jhd; jPh;it itj;J cs;shh;fs;/ mjw;F Kd;dh; ehd; jhd; jPh;it brYj;jp te;njd;/ brhj;J jPh;it vdf;Fj; bjhpahJ/
/// 1975 f;F gpd;By; jhd; jdpj;jdp rhg;ghL/ mjw;F Kd;dh; xnu rhg;ghL jhd;/
/// 5/6/72y; jhd; rpd;dgps;]s mk;khs; ,we;jhs; vd;why; vdf;F bjhpahJ/
/// kWtprhuiz /; vdf;F M’;fpy jkpH; tU& fzf;F bjhpahJ/ ehd; gof;fhjtd;/@
However, he has also stated that he does not know whether Chinnapillaiammal died on 05-06-1972, but in the reexamination he admits that he is illiterate and does not know the English dates. D.W.3, the attestor is Chinnapillaiammal’s own brother. In the chief examination dated 12-08-1986 he has stated that Chinnapillaiammal died thirteen years ago. Ex-B24 has been summoned, which is the death register of the year 1973 recording serially datewise the deaths, which had been reported. In the evidence of D.W.1 it is recorded that Chinnapillaiammal died thirteen years ago and he registered the death. This is in accordance with Ex-B24 wherein the informant of death is stated to be Muruga Padayachi. There is no reason to disbelieve the register kept by Officials for this purpose. Therefore, it is clear that Ex-A11 is not a true document and Chinnapillaiammal died only in 05-06-1973.
10. Next we come to the issue of proof of the Will. The evidence shows that Perumal Padayachi one of the attestors and Thittakudi Perumal, who is the scribe are not alive. But Arumuga Padayachi D.W.3 the other attestor has given evidence.
11. From the evidence of D.W.1 it is clear that Chinnapillaiammal had affixed her left thumb impression in the presence of the witnesses and the witnesses had attested in her presence and also in the presence of each other. D.W.3’s evidence also corroborates this. In the cross examination, D.W.3, has clearly stated that Chinnapillaiammal was healthy at the time of execution of the Will and at 4 o’ clock, Chinnapillaiammal, D.W.1 and the other witnesses assembled before the Sub-Registrar. The scribe Perumal was there. The left thumb impression was obtained in the presence of the Sub-Registrar and the document was registered five days later. He has also clearly stated that Chinnapillaiammal had told him that she has bequeathed her one third share. It was urged on behalf of the respondent that the fact that Chinnapillaiammal had not given anything to P.W.2, who was brought up by her with affection would show that the Will is false. It must be remembered that Chinnapillaiammal died without issues; Thulsiammal is her own sister and Palaniammal is also related to her. So there is nothing unnatural in Chinnapillaiammal wanting to make provisions for her sister Thulsiammal who also had no issues and to bequeath the absolute estate on the children of Palaniammal. She was probably affectionate to all the children of her brothers in law.
12. In S. Sundaresa Pai Vs. Sumangala T. Pai it was held that unnatural and uneven distribution of assets cannot by themselves raise suspicion regarding the Will.
13. Similarly, in Rabindra Nath Mukherjee Vs. Panchanan Banerjee it was held that deprivation of the natural heirs should not raise any suspicion because the idea behind execution of Will is to interfere with the normal line of succession.
14. In Jeyaraj Vs. Gangammal (2002 I MLJ 346)the manner in which a Will has to be proved has been dealt with in detail and a number of decisions have been relied on.
“What is demanded of the testamentary Judge is reasonable scepticism, not an obdurate persistence in disbelief nor a resolute and impenetrable incredulity.”
15. Motibhai Hormusjee’s case(AIR 1924 P.C. 28)was referred to wherein it was stated as follows:
” A man may act foolishly and even heartlessly, if he acts with full comprehension of what he is doing the Court will not interfere with the exercise of his volition.”
In this case, it cannot be said that Chinnapillaiammal acted foolishly or heartlessly and it is clear that she has acted on her own volition. The evidence of D.W.3 shows that Chinnapillaiammal was quite conscious of what she was doing and she also told him that she is giving her one third share. The Will had been executed and attested in accordance with law. Both the grounds raised to attack the Will are of no use. It has been proved that the testatrix died after executing the Will and not in 1972 as contended by the respondent and excluding Gangajalam P.W.2 is also not so unnatural because the appellants 4 and 5 are related to Chinnapillaiammal and the life estate holder, Thulsiammal is her own sister.
16. In Madhukar D. Shende Vs. Tarabai Aba Shedage , the Supreme Court has held that,
“one who propounds a Will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the court would not return a finding of ‘not proved’ merely on account of certain assumed suspicion or supposition.”
and also,
“The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict – positive or negative.”
17. In the present case, in fact the plaintiff does not claim that the testatrix was not of a sound and disposing state of mind or that it was obtained by undue influence or force or any other vitiating factor. It was his case that Chinnapillaiammal died in July 1972 and therefore, the Will dated 05-10-1972 could only be a forgery and also that Chinnapillaiammal would not have disinherited P.W.2 whom she regarded with great affection. It has already been seen that Chinnapillaiammal died only on 05-06-1973 and not on 05-06-1972 and therefore, this objection fails and the decisions referred to above are also to the effect that merely because someone has been disinherited the Will cannot be rejected. It was pointed out that the brother of the testatrix cannot plead ignorance of the contents of the Will and therefore, the very fact that D.W.3 states that “capypy; fz;l thrf’;fs; vdf;F bjhpahJ@ proves that there was no attestation. Attestation only means that the person has subscribed his signature with an intention to attest the Will. It is not necessary that he should know the contents. In this case, the Will also shows that the testatrix had appointed Thulsiammal, A2 to be the guardian of A4 and A5. This is in accordance with the evidence of D.W.3, which is as follows:
“rpd;dgps;]s mk;khs; rhFk; Kd;dh; capy; vGjp itj;jpUe;jhh;fs;/ o4 & o5 f;F Jsrp mk;kh]s fhh;oad; nghl;L vGjp itj;jhh;fs;/ ehd; rhl;rp nghl;L cs;nsd;/ bgUkhs; gilahr;rpa[k; rhl;rp nghl;L cs;shh;/ vf;/gp 22 vd; ifbaGj;J cs;sJ/ rpd;dgps;]s mk;khs; nuif jhd; itj;J cs;shh;/ mth;fs; nuif itg;gj]d eh’;fs; ghh;j;njhk;/ eh’;fs; ,UtUk; ifbaGj;J bra;tj]d rpd;dg;gps;]s mk;khs; ghh;j;jhh;fs;/ capy; ifbaGj;J bgUkhs; gilahr;rp vGjpdhh;/ gjpt[ bgw;w capy; jhd;/ ehd; hp$p!;lh; fhyj;jpYk; rg; hp$p!;lh; MgPrpy; ,Ue;J ifbaGj;J bra;njd;/ rpd;dgps;]s mk;khs; jhd; rg; hp$p!;ouhh; MgPrpy; jhf;fy; bra;jhh;/@
18. The evidence is clear regarding execution by the testatrix and attestation, the name of the scribe is also specifically mentioned. In the cross examination also, there is nothing to show that the witness is speaking falsehood. As regards her mental capacity the witness, D.W.3 has stated thus:
“Vw;fdnt vGj;Jf;fhu bgUkh]sj; bjhpa[k;/ rpd;dgps;]s mk;khs;. o/lgps;a[{/1. ehd; kw;bwhU rhl;rp Mf 4 ngh;fs;. jhd; brd;wJ MFk;/ if nuif rg; hp$p!;l;uhh; Kd;dp]yapy; th’;fg;gl;lJ/ gpd;dh; 5 ehl;fs; fHpj;J gj;jpu gjpt[ Vw;gl;lJ/ vd;]d tur; brhd;Bh;fs;/
/// capy; vGJk;nghJ ed;whfj; jhd; ,Ue;jhh;/ vy;yh ,lj;jpy; 3 y; 1 ghfk; vd brhd;Bh;fs;/@
Not only does he speak of her good health but also that Chinnapillaiammal had stated that she was bequeathing one third share in all the properties which is her share. This witness has also denied the allegation of forgery and impersonation. There is some discrepancy regarding the age of the testatrix in the evidence of D.W.3 that it must be remembered that the witness comes from a rural area and may make a mistake in this regard. In any event it does not materially affect his evidence regarding attestation. It was also pointed out that while the witness had clearly denied that his sister had Asthma, in the Will the testatrix herself had stated that she was suffering from Asthma. This factor also will not affect the genuineness of the Will since in the chief examination D.W.3 had stated that the testatrix had decided to execute the Will because she had breathing difficulty and this is the reason given for her death in Ex-B24. Therefore, there is nothing in the oral or documentary evidence which disturbs the Court regarding the veracity of the Will and Ex-B22 must be held to be a genuine Will under which Chinnapillaiammal gave her one third share in the joint family property to appellants 4 and 5.
19. In Boramma Vs. Krishna Gowda it was held that while appreciating evidence it would not be correct to extract and isolate an answer given by a witness during cross examination and to draw inferences therefrom.
20. Again in Chikkam Koteswara Rao Vs. Chikkam Subbarao (1970 II MLJ 127(SC), it was held that before the right of a party can be considered to have been defeated on the basis of an alleged admission by him the implication of the statement made by him must be clear and conclusive. There should be no doubt or ambiguity about the alleged admission. An admission made during cross examination must be read alongwith the evidence given in chief examination in a harmonious manner.
21. These decisions were cited to show that the appeal cannot be decided on certain admissions made by D.W.1, the first appellant which have already been extracted above and that his whole evidence must be appreciated harmoniously. There is no doubt that even when the entire evidence is read as a whole there is no material to come to the conclusion that there was a partition in 1960. It is clear from the evidence that there was separate enjoyment but it was only on the basis of convenience and not pursuant to any severance of status.
22. The registered Will which has been duly executed and attested and proved in accordance with law and which has been acted upon after the death of testatrix cannot be disbelieved because the plaintiffs came to know of it much later. This ground also fails.
23. The Will was also attacked on the ground that it was not revealed earlier but kept in secrecy. To this the answer from the appellants is that from Exs-B12 to B22 it is seen that Chinnapillaiammal was paying the kist etc. for the property in her enjoyment and after 1973 as evidenced by Exs-B27 to B37, Thulsiammal, the life estate holder was paying the dues and that the defendants had acted upon the Will and were in enjoyment of the same property which Chinnapillaiammal was in possession of and that, it cannot said that the Will had been suppressed or concocted and that, in any event the Will had been registered. Therefore, the suspicion on the ground of secrecy does not arise.
24. Therefore, after Sellamuthu died his wife Chinnapillaiammal inherited his one third share and along with the plaintiff and the first defendant was enjoying the joint family property. She had bequeathed her undivided one third share to defendants 4 and 5 under the Will. The plaintiff namely the 1st respondent therefore, will be entitled to only one third share in the suit properties. The first defendant will take another one third share and as regards the remaining one third share, the second appellant Thulsiammal will enjoy it for her lifetime and the absolute estate will go to defendants/ appellants 4 and 5. Therefore, the judgment and decree of the Trial Court is set aside insofar as the declaration of the share is concerned and there will be a preliminary decree in favour of the first respondent for the one third share in the suit properties. As regards the alienees, who are the other defendants the allotment of the property shall be made in accordance with law at the time of final decree proceedings.
25. The appeal is therefore partly allowed. No costs.
