ORDER
1. The plaintiff in O.S.No.269 of 1983 on the file of District Munsif Court, Tirunelveli filed the second appeal. Pending second appeal, he died and his legal representatives have come on record as appellants 2 to 7 and respondents 7 and 8. The suit was filed for declaration of the plaintiff’s title to the plaint second schedule property and for permanent injunction restraining the defendants, who are respondents 1 to 6 herein from interfering with his possession and enjoyment of the second schedule property. His case was as follows:
The schedule properties along with other properties originally belonged to his mother one Arunachalathammal. Arunachalathammal executed a Will on 18.11.1966 in respect of the plaint schedule properties and other properties. As per the terms of the Will the plaintiff was entitled to the first schedule property excluding the second schedule. Some time later, Arunachalathammal felt that no provision had been made for a house to the plaintiff and also no provision had been made for common enjoyment of the properties to the plaintiffs brothers Venkatachalam Pillai and Sankaran Pillai. She cancelled the Will dated 18.11.1966 and executed another Will on 9.1.1967, as per the terms of which the plaintiff became entitled to the first schedule property including the second schedule. The attestors of both the Wills are the same. The Will dated 9.1.1967 was the last Will of Arunachalathammal. She died in 1967. Though the Will had been executed on 9.1.1967, the plaintiff came to know about it only in the third week of December, 1981. The heirs of the plaintiffs brother Venkatachalam Pillai found out the Will dated 9.1.1967 only in the third week of December, 1981 along with other documents and papers in the house. They gave them to the plaintiff. Immediately thereafter the plaintiff called the heirs of his brothers including the defendants, who are
the sons of the plaintiff’s third brother Sudalai Adum Perumal Pillai. He showed the Will dated 9.1.1967 and the allotment of properties therein. Ail the parties including the defendants agreed to act and enjoy the properties as per the terms of the Will dated 9.1.1967. Even from 1966 the plaintiff had been in continuous possession and enjoyment of the second schedule property till the date of filing of the suit. He had been paying the tax for the schedule properties including the second schedule. On 30.6.1981 the plaintiff executed a gift deed in favour of his daughter in respect of 10 cubic feet on the southern side of the first schedule property. He also executed a mortgage deed on 5.6.1982 in respect of the schedule properties in favour of Selvakamatchi, wife of one Sankaranarayanan. The Will came into force in the last week of December, 1981 and the parties also acted as per the terms of the same. However, the defendants wanted to give trouble to the plaintiff and on 27.2.1983 the first and the 6th defendants came to the plaintiff’s house and tried to interfere with his peaceful possession and enjoyment of the second schedule property by denying his title to the same. The suit was therefore instituted for the reliefs already mentioned.
2. The 6th defendant filed a written statement and defendants 1,3 and 5 adopted the same. Defendants 2 to 4 remained ex parte. The averments in the written statement of the 6th defendant are as follows:
There was no second Will dated 9.1.1967. It was a cooked up document with the connivance of the same scribe and attestors of the Will dated 18.11.1966. The plaintiff was claiming the plaint second schedule property belonging to the defendants. The defendants had learnt that the plaintiff had taken the thump impression of Arunachalathammal in her death bed, prepared a Will with the help and connivance of the scribe and attestors of the last Will dated 18.11.1966 and was releasing now with ulterior motives. The Will dated 9.1.1967 was a fabricated and manipulated piece of paper which had no legal force or sanction. It was a spurious document. The defendants were in exclusive possession and enjoyment of the plaint second schedule property and other portions as per the Will dated 18.11.1966. The plaintiff had no right, title or interest over the second schedule property or any part of the property allotted to the defendants. The defendants had allowed their paternal junior uncle Sankaran Pilla’s widow and her young children to occupy and reside therein till about 1 1/2 years prior to the filing of the suit. After they vacated the portion one Viswanathan became a tenant under the defendants for a rent of Rs.25 per month. He had also vacated and the defendants had not leased out to anybody but keeping the possession with themselves. The allegations regarding the plaintiff’s possession of the suit property and that on 27.2.1983 the first and the 6th defendants interfered with his possession and that he removed them with great difficulty were all tissues of lies and falsehood. The suit was liable to be dismissed.
3. On the above pleadings the learned District Munsif framed the necessary issues and held that the Will dated 18.11.1966 was true as also the
Will dated 9.1.1967, that the suit second schedule property belonged to the plaintiff as per the terms of the Will and that in view of his possession of the second schedule property, he was entitled to the relief of injunction.
4. The defendants filed an appeal in A.S.No.43 of 1987 before the Principal Subordinate Judge, Tirunelveli. The learned Subordinate Judge differed from the view taken by the trial court, set aside the judgment and decree of the trial court, allowed the appeal and dismissed the suit of the plaintiff on 6.10.1988. Aggrieved the present second appeal had been filed. At the time of admission the following substantial questions of law were raised for decision in the second appeal:
1. Whether on the evidence adduced and the admissions made by the defendants witness, the lower Appellate Court is right in holding that the provisions of Sections 63(2) of the Indian Succession Act have not been fully complied with and hence, it cannot come to the conclusion that the propounder has proved the execution of the Will by examining one of the attesting witnesses?
2. Whether on the evidence the lower appellate court is right in holding that the appellant had no possession of the property and hence not entitled to a decree for injunction?
5. Mr. V. Shanmugam, learned counsel for the appellant submitted that the lower appellate court was in error in not appreciating the scope of Section 63 of the Indian Succession Act in the proper perspective and erred is not applying the correct principles to the tract of the present case. The lower appellate court had not properly appreciated the oral evidence of the attesting witnesses and the admissions made by the witnesses on the side of the defendants regarding the veracity of the Will. According to the learned counsel, the lower appellate court had not focussed its attention on the proper question to the answered regarding the Will and it was in error in getting its approach influenced by the fact that the Will was being propounded only in the year 1981 though the plaintiff had knowledge of the Will much earlier.
6. Mr. Peppin Fernando, learned counsel for the respondent submitted that very many vitiating circumstances with regard to the second Will were taken into consideration by the lower appellate court in discrediting the Will and the ultimate finding reached by the lower appellate court could to be interfered with the second appeal. The learned counsel further submitted that the plaintiff had knowledge of the Will and he had not propounded the same at the earliest point of time and that there were very many aspects present to the case to show that it was only the earlier Will that was accepted and acted upon by all the parties concerned and at no point of time any right was claimed under the second Will and this itself would show that the second Will was a got up document. With regard to execution, attestation burden of proof and suspicious circumstances, the learned counsel cited a number of decisions which will be noticed in the course of the judgment.
7. The testatrix Arunachalathammal executed a Will on 18.11.1966 marked as Ex.B.6 in the proceedings. She died on 23.9.1967. According to the plaintiff, on 9.1.1967 the testatrix cancelled the Will executed by her under Ex.B.6 had executed the suit Will Ex.A.1. Indeed Ex.A-1 and Ex.B.6 had the same scribe Arunachalam Pillia as also the same attestors Thirumalai Kolundu Pillai and Sankaralingam Pillai. At the time of the trial the scribe had died. As per the terms of Ex.1 Will, the plaintiff was to get the second schedule property and the heirs of his two brothers Venkatachalam Pillai and Sankaralingam Pillai were to get pathway rights to reach the main street from Sami Sannadhi Street. The case of the plaintiff that he came to know about the second Will only in the third week of December, 1981 appears to be too far fetched for acceptance as true. According to him this Will was traced by his brother Venkatachalam Pillai’s wife Chidambarathammal along with some old records. She sent the Will to the plaintiff through her children and then only he came to know about the execution of the Will and thereafter he informed the same to his brother’s heirs and he also accepted the legacy under the Will and started dealing with the property bequeathed to him. Even according to the plaintiff he came to know about the Will only in the year 1981. As rightly pointed out by the lower appellate court, he was not competent to speak about the exact execution of the Will Ex.A-1 by Arunachalathammal. The scribe, as already noticed, was dead. Thirumalaikolundu Pillai, one to the attestors was examined as P.W.2 in the suit. His oral evidence according to the learned counsel for the appellants Mr. Shanmugam is unimpeachable and the lower appellate court was in error in rejecting the oral evidence of P.W.2. Very many discrepancies in the oral evidence of P.W.2 have been pointed out by the lower appellate court. Apart from saying that he did not see whether Arunachalathammal affixed her thumb impression in two places and that he knew only about her affixing the thumb impression in the page where he had attested in his evidence in earlier rent control proceedings where the execution of the earlier Will was put in issue and he was also examined, he did not whisper about the said Wilt. Yet another aspect of his evidence was that this Will was made public on the date of death of Arunachalathammal and all the persons were present. This vital admission by P.W.2 vis-a-vis the case of the plaintiff that he knew about the Will only in the second week of December, 1981, in the view of the lower appellate court would go to show that the truth about the execution of Ex.A-1 by Arunachalathammal was very much in doubt. If the Will was made public among the legatees even in the year 1967 on the date of death of Arunachalathammal, it is not explained as to how and why the plaintiff did not claim under this Will till the filing of the present suit. The reasoning or the lower appellate court that in view of the patent contradictions and discrepancies in the evidence of P.W.2, the non-examination of the other attestator was significant. No doubt the provisions of Section 63(2) of the Indian Succession Act require the examination of one of the attesting witnesses for proving the due execution of the Will as sufficient. In view of the vitiating circumstances present in the case and the visible
contradictions, it was incumbent on the plaintiff to have dispelled the suspicion surrounding the execution of Ex.A-1.
8. The lower appellate court has also noticed certain further features. According to the plaintiff, his brother’s wife Chidambarathammal traced the Will and sent it on to him and when she was examined as D.W.2, she denied having traced the Will and sent the same to the plaintiff through one of her children and further she left Tirunelveli even in the year 1980 and went to Sankaran Koil and settled down there as her son was employed there. Avudaiarnmal, wife of Sankaran Pillai, the youngest son of Arunachalathammal was examined as D.W.3. She deposed that from 1954 till Arunachalathammal died in 1967, she was living in her house along with her husband Sankaran Pillai. If really Arunachalathammal had executed Ex.A-1 and had left it in the house, then the Will should have been available with D.W.3. The inference by the lower appellate court that the oral evidence of D.W.2 and D.W.3 would disprove the case of the plaintiff is perfectly justified. There were proceedings in 1968 in which the heirs of Arunachalathananal were parties. P.W.2 was examined to prove the earlier Will and if really Arunachalathammal had executed a second Will and he had attested the same he would have mentioned about it in those proceedings. This omission cannot be lightly brushed aside. The lower appellate court has also referred to the shortcomings in the oral evidence of plaintiff himself. The conclusion reached by the lower appellate court that the evidence or P.Ws.1 and 2 through suspicion over the Will in Ex.A-1 cannot be said to be in any way erroneous.
9. Learned counsel for the plaintiff relied on the magnum opus judgment H. Venkatachal Iyenger v. B.N. Thimmajamma and others, in support of the case of the plaintiff. No doubt it is settled law that the onus of proof is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus. No doubt 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 lower appellate court has relied upon the judgment of the Supreme Court in Smt. Jaswant Kaur v. Smt. Amrit Koar and others, where it has been held.
” In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple Its between the plaintiff and the defendant. What generally is an adversary proceeding becomes insuch cases a matter of the court’s conscience and then the true question which arises for consideration is whether the evidence ted by the propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the marking of the Will.”
10. It is also to be notice that P.W.2 in his capacity as attestor has spoken to his seeing the testatrix affixing her thumb impression only in the last page of Ex.A-1. He had not stated that he saw the testatrix affixing her thumb impression in all the pages of Ex.A.1. The provisions of Section 63(c) of the Indian Succession Act are not satisfied. The lower appellate court has also pointed out that the propounder had failed to prove that P.W.2 was present propounder had failed to prove that P.W.2 was present when the testatrix affixed her thumb impression in all the pages of Ex.A.1.
11. In Abdul Jabbar v. Venkata Sastri. , the Supreme Court with reference to the word “Attested” has stated as follows:
“It is to be noticed that the word “attested”, the thing to be defined, occurs as part of the definition itself (Section 3 of the Transfer of Property Act). To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation under Section 3 are : (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has been the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, for example, to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.
9. “In every case the Court must be satisfied that the names were written animo attestandi, see Jarman on Wills, 8th ed. P. 137. Evidence is admissible to show whether the witness had the intention to attest. The attesting witness must subscribe with the intention that the subscription made should be complete attestation of the will, and evidence is admissible to show whether such was the intention or not see Theobald on Wills, 12th Ed. P. 129.
In Ganga Pershad v. Ishri Pershad, AIR 1918 PC 3, dealing with the provisions of Section 59 of the Transfer of Property Act. The Privy Council observed that witnesses signing on mere acknowledgment of execution, the attestation is not valid. According to the Privy Council, the requirements of Section 59 are not complied with if the witnesses have not been present at the execution of the instrument and have only attested oh the subsequent acknowledgment of the signature. Perhaps the decision of the Privy Council is contrary to the decision of the Supreme Court in Abdul Jabber’s Case, where the Supreme Court has held that an acknowledgment by the executant of his signature would satisfy the requirements of attestation.
12. The difference between attestation and execution has been pointed out by the Supreme Court in Kashibai v. Parwatibai,. The Supreme Court has observed in Para 10 as follows:
” A reading of sec. 68 will show that attestation and execution are two different acts one following the other. There can be no valid execution of a document which under the law is required to be attested without the proof of its due attestation and if the attestation Is also not proved, the facts of execution is of no avail. Section 63 of the Indian Succession Act, 1925 also lays down certain rules with regard to the execution of unprivileged Wills, clause (c) of Section 63 of the Indian Succession Act provides that the will shall be attested by two or more witnesses each one of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will in the presence and by then direction of the testator or has received from the testator a personal acknowledgment of the signature or mark or the signature of such other person, and each of the witnesses should 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,”.
The decision of the Gauhati High Court in Dhiren Bailung v. Bhutuki, AIR 1972 Gau 44 has also stated that attestation and execution are two different acts one following, the other in the order stated and that attestation is meant, to ensure that the executant was a free agent and not under pressure nor subject to fraud which executing the same. The need of calling at least one witness for proof is because he is best suited to tell the Court the circumstances under which the document was executed, Attestation is insisted by T.P. Act. However a document has to be proved in accordance with the provisions of the Evidence Act and if provisions of Evidence Act are satisfied the document shall be taken as proved. The attestation is however not a dispensable formality.
13. As to what is execution, in S. Ramamurthy v. V. Jayalakshmiammal, 1991 (1) LW 391 it has been held that the execution of a document is not a mere Signing of it. It is a solemn act of the executant who must own up the recitals in the instrument and there must be clear evidence that he puts his signature in a document after knowing fully its contents. The executant of a document must, after fully understanding the contents and the tenor of the document put his signature or affix his thumb impression. In other words, the execution of the document does not mean merely signing but signing by way of assent to the terms of the contract of alienation embodied in the document. As to proof of execution and proper attestation, a learned single Judge of the Andhra Pradesh High Court in K.Nookaraju v. P.Venkatarao, has observed as follows
“Therefore, reading Section 68 of the Evidence Act with Section 63(c) of the uccession Act it is seen that it would be sufficient even if one attestor is examined. But. that attestor should speak to all the elements of clause (c) of Section 63 of Succession Act. The attestor witness should speak not only about the testator’s signature or affixing his mark to the will or somebody else signing it in his presence and by his direction or that he had attested the will after taking acknowledgment from the testator of the signature or mark, but also should speak that each of the witnesses had signed the will in the presence of the testator.”
14. In Girja Datt v. Gangotri Datt, it is stated as follows:-
“Section 68 Evidence Act requires an attesting witness to be called as a, witness to prove the due execution and attestation of the will. This provision should be complied with in order that those two persons might be treated as attesting witnesses.”
In Beni Chand v. Kamla Kunwar, it has been held by the Supreme Court that if there are circumstances surrounding execution shrouded with suspicion, satisfactory evidence on the part of the propounder is absolutely necessary. In Indu Bala v. Manindra Chandra, it has been reiterated that where 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 or the court. The suspicious circumstances may be as to the genuineness of the signatures or 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. In Dinesh Kumar v. Khazan Singh, the principle has been reiterated that the propounder has to prove the genuineness and satisfy the conscience of Court that there is no unconscionability.
15. In Kalyan Singh v. Chhoti, it has been held that if suspicious circumstances are not removed, will cannot be held to be genuine. In the instant case there are very many circumstances which point to the will being not genuine and those circumstances have already been noticed in the course of the judgment. In the instant case the ratio of the decision of this Court in M.S.Thanigachala Pillai v. Rukmani Ammal & others, 1988 (1) LW 425 would apply. The conscience of the court in, the instant case, has pot been satisfied regarding the due execution of the Will and that the instrument propounded is the last Will of a free and capable testatrix.
16. When once it is found that the plaintiff has not proved the Will, then the further relief with regard to injunction on the basis that he was in possession in his own right as legatee cannot be countenanced. Both the substantial questions of law raised are therefore answered against the appellants. The second appeal fails and the same is dismissed. No costs.
