N. Sekaran vs Nallammal And Anr. on 5 December, 1989

Madras High Court
N. Sekaran vs Nallammal And Anr. on 5 December, 1989
Equivalent citations: (1990) 2 MLJ 70
Author: E Bellie


E.J. Bellie, J.

1. The question of considering whether the suit will Ex.A. 4 is genuine arises in this second appeal. The suit filed by the plaintiff Nallammal, first respondent herein, against two defendants for declaration of title and injunction has been decreed by the trial court. First defendant is the mother and second defendant is her son. The second defendant is the appellant in this second appeal.

2. One Nallasamy Gounder in a partition between himself and his son second defendant obtained suit items 1 to 7 for his share. According to the plaintiff Nallammal, he executed a will Ex. A. 4 on 5-84971 bequeathing in her favour the properties items 1 to 7 along with item 8. Item 8 had been already sold to her on 9-8-1968 by Nallasamy. Nallasamy died on 13-6-1975. From that date onwards the plaintiff had been in possession and enjoyment of the properties. While so the defendants without any manner of right attempted to disturb the plaintiff’s possession and therefore the suit for declaration of plaintiff’s title to the said properties and for injunction.

3. The first defendant-wife of Nallasamy remained ex parte. But the second defendant son of Nallasamy filed a written statement contesting the suit. He would admit that in a partition suit items 1 to 7 fell to the share of his father Nallasamy and Nallasamy had already sold item No. 8 in favour of the plaintiff. But he would not admit that Nallasamy executed the alleged will and would state that there was no necessity for executing such a will. It was also contended that at the time of the alleged will Nallasamy was not in a disposing state of mind. It is further contended that after the death of Nallasamy, the defendants being the only heirs of his, they were entitled to items 1 to 7 and they have been in possession of the properties and not the plaintiff, and therefore no question of interfering with the plaintiff’s alleged possession arises.

4. On consideration of the evidence in the case the trial court (Principal District Munsif, Karur) held that the alleged will dated 5-8-1971 is true and valid and therefore the plaintiff is entitled to the suit items 1 to 7; It also held that the plaintiff is entitled for injunction as prayed for. Accordingly the trial Court decreed the suit. Second defendant filed an appeal. The learned appellate Judge (Subordinate Judge, Karur) concurred with the findings of the trial Court and confirmed its judgment and dismissed the appeal.

5. It is now argued by Mr. K. Sarvabhauman, learned Counsel for the appellant second defendant that the courts below have erred in holding that the alleged will was a genuine one when there is absolutely no proof of execution of the will. The learned Counsel submits that as per Section 68 of the Evidence Act a will shall not be used as evidence until one attesting witness at least is 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, but this has not been complied with in this case. I find no merit in this submission. The will Ex. A. 4 purports to show that two persons have signed therein as attestors. One is described as Nachimuthu son of Marappa Gounder and the other as Thiruvengadam son of Raman Asari. P.W. 2 Nachimuthu examined by the plaintiff has admitted that one of the witnesses signatures in the document is his. Therefore the plaintiff has indeed examined one of the attesting witnesses for the purpose of proving execution of the will and therefore the requirements of Section 68 of the Evidence Act is complied with. May be the witness has stated that he has not seen the executant of the document signing. That is immaterial. And that may be due to various reasons. For instance the witness might have been won over by the opposite side and therefore he is not telling the truth. Therefore it cannot be said that as required under Section 68 atleast one of the attesting witnesses has not been examined.

6. Mr. K. Sarvabhauman next contends that the alleged will ex. A. 4 has not been proved to have been duly executed. He submits that Section 63 of the Indian Succession Act, 1925 lays down the mode of execution of the will and Ex.A. 4 the alleged will has not been proved to have been executed in that mode. The learned Counsel particularly reads Section 63(c) which is as follows:

63(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 seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or ofthe 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 mat more than one witness be present at the same time and no particular form of attestation shall be necessary.

It is argued that as per Section 63(c) each of the two attesting witnesses should have seen the testator sign or affix his mark to the will and each of the witnesses shall sign the will in the presence of the testator, but there is no evidence in the present case to satisfy these conditions. It is submitted that P.W. 2 who has been examined as an attesting witness has not said that he has seen Nallasamy sign or affix his mark to the alleged will and each of the witnesses has signed the will in the presence of Nallasamy. “This may be true, but. one thing that must be remembered is that Section 63(c) does not those conditions can be proved by other evidence also.

7, Now, as stated above, in Ex. A. 4 two persons have signed as attesting witnesses one of whom being P.W.2. This witness would admit his signature. But however, he would not say that he has seen Nallasamy sign the document and he has just said that Nallasamy was there at that time. Further this witness has not stated that the other witness signed in the presence of Nallasamy. He would even say that he did not know the contents of the document and he signed simply because P.W. 1, the Karnam, wanted him to sign. This part of his evidence is certainly difficult to believe. He has also signed, as admitted by him, as identifying witness before the Registrar. Considering the circumstances it is most incredible that this witness states that even without knowing the contents of the document he has signed as a witness. As pointed out by the Courts below the plaintiff had the trouble of arresting him to bring him to Court to depose. This would show that it is quite possible that this witness has been won over by the other side, or because of some other reason he was not speaking the truth.

8. But even eschewing the evidence of P.W. 2 as regards the due execution of Ex. A. 4, there is other evidence on the basis of which it can be Safely believed that Nallasamy signed in the presence of two attesting witnesses and each of the two attesting witnesses have signed in the presence of Nallasamy. P.W. 1 Karnam has deposed that he scribed Ex.A. 4 and he saw Nallasamy as well as the two attesting witnesses sign the document; that after writing he read out the contents and then Nallasamy Gounder signed; the witnesses were there then; and Nallasamy Gounder saw the witnesses sign the document. This evidence if believed certainly would satisfy the conditions of Section 63(c). As both the Courts have pointed out there is absolutely no reason to disbelieve P.W. 1. It is in evidence that it is this witness who has earlier scribed Ex.A. 1 partition deed executed by Nallasamy and his son second defendant, Ex.A. 2 sale deed executed by Nallasamy in favour of the plaintiff in respect of item 8 of plaint schedule property, and Ex.A. 3 release deed executed by Nallasamy’s wife first defendant Therefore P.W. 1 is the person who used to write documents in the family and hence he is quite a natural witness and he is a common man for both sides. It must be remembered that Ex.A. 4 is a registered will. The document is dated 5-8-1971 and the testator Nallasamy died only about four years after i.e., on 13-6-1975. In these circumstances it is highly improbable that P.W. 1 would have helped in fabricating the will.

9. Then P.W. 4 the Registrar has testified that Nallasamy presented Ex.A. 4 for registration and to his question Nallasamy answered that it was a will and to his further question Nallasamy answered that out of his free will he executed the document and thereafter only he registered the document.

10. Considering all these I have no hesitation in holding that the evidence of P.W. 1 the Karnam, is quite believable and acceptable. His evidence considered along with other circumstances in the case such as P.W. 2 admitting his signature in Ex.A. 4, is sufficient to prove that two attesting witnesses have seen Nallasamy sign the will and each of the witnesses signed the will in presence of Nallasamy. Thus the second contention of the learned Counsel also has to be rejected as without merit.

11. The first appellate Court has however; proceeded on the basis that P.W. 1 Karnam, though he has not signed the document as an attesting witness but only as a scribe, has seen the execution of the document and therefore he can be considered as an attesting witness. As against this Mr. K. Sarvabhauman contended that this witness having described himself only as a scribe and not as an attestor he cannot be considered as an attesting witness at all. He would submit that this witness had no animo attestandi and therefore the first appellate Court considering him as an attesting witness is absolutely wrong. In this connection the learned Counsel cited some authorities. But in view of what I have stated above as regards P.W. 1 this question need not be considered.

12. Both the Courts below, considering the evidence in the case, have held that the plaintiff was living with Nallasamy for a number of years whereas his own wife and son were living away from him for a number of years and hence there is nothing unnatural in Nallasamy executing the will in favour of the plaintiff and that Nallasamy was in a quite disposing state of mind at the time of execution of the will. These concurrent findings of facts were rightly not challenged in this second appeal.

13. In the result, therefore, the second appeal has to fail. Accordingly it is dismissed with costs.

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