{"id":76370,"date":"2006-01-23T00:00:00","date_gmt":"2006-01-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/manickam-vs-sakunthala-rajeswari-on-23-january-2006"},"modified":"2016-03-31T00:20:53","modified_gmt":"2016-03-30T18:50:53","slug":"manickam-vs-sakunthala-rajeswari-on-23-january-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/manickam-vs-sakunthala-rajeswari-on-23-january-2006","title":{"rendered":"Manickam vs Sakunthala @ Rajeswari on 23 January, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
Manickam vs Sakunthala @ Rajeswari on 23 January, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDated: 23\/01\/2006 \n\nCORAM   \n\nTHE HON'BLE MR. JUSTICE K.MOHAN RAM         \n\nSecond Appeal No.946 of 1995  \n\n\nManickam                                       .. Appellant\n\n-Vs-\n\n1. Sakunthala @ Rajeswari \n2. Sundararajan\n3. Muruganandam  \n4. Babu \n5. Raghupathy \n6. Saraswathi                                   .. Respondents.\n\n\n        Appeal against  the  judgment  and  decree  dated  of  the  learned  I\nAdditional  District  Judge  of Coimbatore dated 08.08.1994 in A.S.No.172 of 1\n993 reversing the judgment and Decree of the I Additional District  Munsif  of\nCoimbatore dated 21.06.1993 in O.S.No.673 of 1983. \n\n!For Appellant          :       Mr.  Nicholas.\n\n^For Respondents        :       Mr.  J.Raja Kalifulla\n\n:J U D G M E N T \n<\/pre>\n
        The  plaintiff  in  O.S.No.673  of  1983  on  the  file  of the Second
\nAdditional District Munsif Court Coimbatore, who succeeded  before  the  Trial
\nCourt,  but  lost before the first Appellate Court, has filed the above second
\nappeal.\n<\/p>\n
        2.  The suit in O.S.No.673 of 1983 was  filed  by  the  appellant  for
\npartition  and separate possession of her 1\/3rd share in the suit property and
\nfor mense profits at Rs.250\/- per month from the date of filing of suit,  till
\npossession is delivered to her.\n<\/p>\n
        3.   For  the  sake of convenience, the parties are referred to as per
\ntheir ranking in the suit.\n<\/p>\n
        4.  The case of the plaintiff before the Trial Court is as follows:\n<\/p>\n
        The suit property is a house property,  bearing  Door  No.12\/39  A  in
\nArunthathiyar Street,  Coimbatore.  The suit house was originally purchased by
\none Savadammal by a Sale Deed Ex.A.5  dated  01.07.1956,  from  one  Marimuthu
\nReddy for  Rs.2,445\/-.    The eldest son Ponnuswamy got himself separated from
\nthe family.  1\/4th share in the house property was settled in  favour  of  the
\neldest  son  Ponnuswamy  by  the deceased Savadammal as per Ex.A.1, Settlement
\nDeed dated 27.03.1972.  There is no dispute with regard to the aspects.\n<\/p>\n
        5.  The case of the plaintiff is that the  original  owner  Savadammal
\ndied intestate  on  10.07.1973.    On  the  death  of the said Savadammal, the
\nplaintiff and the other  son  Ramachandran  and  another  daughter  the  sixth
\ndefendant became  entitled  to 1\/3rd share in the suit property.  Defendants 1
\nto 5 are the legal heirs of the said Ramachandran.  The plaintiff had issued a
\nnotice calling for the division of the suit  property.    On  08.03.1983,  the
\nfirst  defendant  issued a false reply stating that Savadammal had left a Will
\non 19.05.1973 under which the  suit  property  was  bequeathed  in  favour  of
\nRamachandran the husband of the first defendant.  Such a will in favour of the
\nsaid  Ramachandran  could  only  be  a  forged Will and not genuine, valid and
\nbinding on the plaintiff and hence the suit is filed claiming partition of the
\n1\/3rd share in the suit property.\n<\/p>\n
        6.  Denying the averments in the plaint, Defendants 1 to 5 have  filed
\nthe written statement contending as follows:  The deceased Savadammal had much
\nlove  and  affection  for Ramachandran, who was taking care of his mother till
\nher death.  The plaintiff and the sixth defendant are married and  settled  in
\nlife.  The deceased Savadammal was conscious of the needs and responsibilities
\nof the said Ramachandran and hence she bequeathed the suit property as per the
\nWill  dated  19.05.1973,  by  which  she  cancelled  the  earlier  Will  dated
\n27.03.1972.  In fact, the husband of the sixth defendant had also attested the
\nWill in favour of the said Ramachandran and hence the plaintiff and the  sixth
\ndefendant  are  estopped  from  denying  the  genuineness  of  the  Will dated
\n19.05.1973.   In  pursuance  of  the  Will,  the  first  defendant’s   husband
\nRamachandran  had  taken  possession of the suit property and is in continuous
\npossession of the suit property and the property tax is  also  transferred  in
\nthe name  of the said Ramachandran.  After the death of the said Ramachandran,
\nthe plaintiff and the sixth defendant with a view to gain unfair advantage are
\ntrying to cause harassment to the helpless widow, the first defendant  herein.
\nThe plaintiff is not entitled to claim any share in the suit property.\n<\/p>\n
        7.   The  sixth defendant filed a separate written statement interalia
\ncontending that one year after the death of Savadammal, Ramachandran  came  to
\nher  house  and obtained her husbands signature in the alleged Will purported
\nto have been executed by the said Savadammal.  Late Savadammal did not execute
\nany such Will, either in favour of Ramachandran or in  favour  of  his  family
\nmembers.   On the date when her husband signed in the Will, Savadammal was not
\nalive and hence the unregistered Will, said to have been executed by the  said
\nSavadammal  does  not have any binding force either on the plaintiff or on the
\nsixth defendant.  But in the Trial, the sixth defendant remained ex-parte.\n<\/p>\n
        8.  On the above said pleadings, the Trial Court framed the  following
\nissues:\n<\/p>\n
i)Whether the plaintiff is entitled to one-third share in the suit?\n<\/p>\n
ii)Whether the plaintiff is entitled to mense profits, as claimed?\n<\/p>\n
iii)Whether the Court Fee paid is correct?\n<\/p>\n
iv)To what relief the plaintiff is entitled to?\n<\/p>\n
But  unfortunately,  the  Trial  Court  did  not frame any issue regarding the
\nvalidity of Ex.B-1, Will.  But, however, the Trial Court elaborately discussed
\nin its judgment about the various circumstances put forth by both the  parties
\nregarding the validity of the Will.\n<\/p>\n
        9.   The  Trial Court on a consideration of the oral evidence, came to
\nthe conclusion, that the following are the suspicious circumstances:\n<\/p>\n
        a) As per Ex.A.1 Settlement Deed the late Savadammal had  settled  1\/4
\nth  share  in  favour  of  her  eldest  son  and  on the same date 27.03.1972,
\nSavadammal had executed a registered  Will  bequeathing  1\/4th  share  in  the
\nproperty  to the plaintiff, the sixth defendant and the deceased Ramachandran.
\nThere is a glaring inconsistency in the manifest  intention  of  the  deceased
\nSavadammal as per the earlier Will and Ex.A.1.\n<\/p>\n
        b)  Exclusion  of  the two daughters and the preference of the younger
\nson Ramachandran.\n<\/p>\n
        c) In view of the fact that Savadammal was ill towards the end of  her
\nlife,  she  could  not have executed Ex.B.1, unregistered Will, out of her own
\nvolition.\n<\/p>\n
        d) Late Ramachandran actively participated in the preparation  of  the
\nWill, Ex.B.1.\n<\/p>\n
The  Trial  Court  pointing  out  certain  contradictions in the deposition of
\nD.Ws.1 and 2, the attestors of Ex.B.1 Will, did not accept  the  evidence  and
\nheld  that  the Ex.B.1 has not been proved in accordance with law beyond doubt
\nand accordingly decreed the suit as prayed for by the plaintiff.\n<\/p>\n
        10.  Being aggrieved by the  judgment  and  decree  dated  21.06.1993,
\npassed  in  O.S.No.673  of  1983,  defendants  1 to 5 filed A.S.No.172 of 1993
\nbefore the learned First Additional District Judge, Coimbatore.\n<\/p>\n
        11.  The  lower  Appellate  Court  framed  the  following  points  for
\ndetermination in the appeal, namely:\n<\/p>\n
        i)  Whether  the  contention  of  the plaintiff that Ex.B.1, Will is a
\nforged one is acceptable?\n<\/p>\n
        ii) Whether the contention of the plaintiff that Ex.B.1, Will  is  not
\nexecuted by the deceased Savadammal out of her own volition is acceptable?\n<\/p>\n
        iii)  Whether  the  defendants 1 to 5 have proved due execution of the
\nWill?\n<\/p>\n
        iv) Whether the various circumstances  stated  to  be  the  suspicious
\ncircumstances by the Trial Court are sufficient to invalidate the Will?\n<\/p>\n
        v)  Whether  the  conclusion  of the Trial Court that the plaintiff is
\nentitled to 1\/3rd share in the suit property is acceptable?\n<\/p>\n
The lower Appellate Court on an independent and elaborate consideration of the
\noral and  documentary  evidence  adduced  in  the  case,  disagreed  with  the
\nreasonings  and findings of the Trial Court and held that by examining P.W.s 1
\nand 2, the attesting witnesses of Ex.B.1 Will, defendants 1 to 5<\/p>\n
have proved the due execution  of  the  Will  Ex.B.1  and  further  held  that
\ndefendants  1 to 5 have discharged the initial burden and hence the burden has
\nshifted to the plaintiff to prove that Ex.B.1 is a forged  will.    The  lower
\nAppellate Court on a consideration of the evidence on record held that, though
\nthe  consistent  stand  of  the  plaintiff  and  the  sixth defendant in their
\npleadings is that the alleged Will in favour of late Ramachandran is a  forged
\nand  created  one,  during  the course of the Trial and arguments, the plea of
\nforgery had been given a go-bye.  The lower Appellate Court has  also  pointed
\nthat D.Ws.1 and 2 were also not cross-examined regarding the mental faculty of
\nlate Savadammal.    The  lower  Appellate  Court  considering  the evidence of
\nD.W.3\/first defendant found that Savadammal was admitted in the hospital prior
\nto her death and she died  in  the  hospital.    Prior  to  her  death,  while
\nSavadammal  was in the hospital, the pl aintiff took care of her, for about 10
\nto 15 days and merely Savadammal was in hospital, for a  short  while,  Ex.B.1
\nWill cannot be alleged to be a forged one.  The lower Appellate Court has also
\npointed  out  an  important  aspect  that  the plea that Savadammal was in the
\nhospital under the care and custody of the plaintiff was  neither  pleaded  in
\nthe  plaint  nor in the written statement of the sixth defendant and therefore
\nhas held that no importance could be attached to the answers elicited  in  the
\nunguarded moment in cross-examination of D.W.3.  The lower Appellate Court has
\nalso  pointed  out  that  P.Ws.1  and  2  have  also not deposed that deceased
\nSavadammal could not execute the Will as she was admitted in the hospital  for
\na continuous period of time prior to her death.\n<\/p>\n
        12.   On  the above said reasoning, the lower Appellate Court rejected
\nthe contention of the plaintiff that the Will, Ex.B.1 is a forged one and  the
\nsame could not have been executed by Savadammal.\n<\/p>\n
        13.   The  Lower Appellate Court independently considered the evidence
\nin  respect  of  suspicious  circumstances  alleged  by  the   plaintiff   and
\ndisbelieved  the  evidence  and  the lower Appellate Court also considered the
\nalleged active participation of Ramachandran in the execution of the Will  and
\ncame  to  the  conclusion  that mere participation of said Ramachandran in the
\nprocess of execution of  the  Will  does  not  lead  to  the  conclusion  that
\nSavadammal  was  pressurized and was under stress from Ramachandran to execute
\nthe Will Ex.B.1.  The lower Appellate Court rightly kept in mind the fact that
\nthe exclusion of the daughters, the plaintiff and the sixth  defendant  throws
\nconsiderable  doubt  upon  the  genuineness  of  Ex.B.1  Will and took care to
\nconsider the evidence with extra care and came to the  conclusion  that,  when
\ndue   execution   is  proved,  the  Courts  cannot  sit  over  the  subjective
\nsatisfaction of the testator and for its conclusion, the Lower Appellate Court
\nrelied upon a judgment of the Apex Court reported in (A.I.R.1971 Supreme Court
\nPage No.2236, Sushila Devi Vs.  Pandit Krishna Kumar Missir and Others).   One
\nof the reasons recorded by the Trial Court for rejecting Ex.B.1, Will was that
\nno reason  is indicated for cancelling the earlier Registered Will.  The Lower
\nAppellate Court considered that aspect also and held that it is not imperative
\nfor the testator while executing the second Will  to  state  the  reasons  for
\ncanceling the  earlier  Will.  The Lower Appellate Court on a careful analysis
\nof the entire evidence on record held that  the  due  execution  of  the  Will
\nEx.B.1  has  been proved by defendants in the manner known to law and reversed
\nthe judgment and decree of the Trial Court and allowed the appeal.\n<\/p>\n
        14.  Aggrieved by the judgment  of  the  Lower  Appellate  Court,  the
\nplaintiff has  filed  the  above  second  appeal.   While admitting the second
\nappeal, the following substantial question of law has been formulated:\n<\/p>\n
        “Whether the judgment of the lower Court is vitiated by its failure to
\napply the correct principles of law laid down by the Supreme  Court  of  India
\nwhile considering the genuineness of Will?”.\n<\/p>\n
        15.  I  heard  Mr.    V.Nicholas,  learned  counsel  appearing for the
\nappellant and Mr.    J.Raja  Kalifulla,  learned  counsel  appearing  for  the
\nrespondents.\n<\/p>\n
        16.   Though,  learned  counsel  for the appellant, argued extensively
\npointing out the various minor discrepancies in the evidence  adduced  by  the
\ndefendants  he  did  not submit that the lower Appellate Court has not applied
\nthe correct principles of law laid down by the Supreme Court of  India,  while
\nconsidering the  genuineness  of  the Will.  But what he submitted is that the
\nlower Appellate Court has not properly appreciated the evidence on record.\n<\/p>\n
        17.  I am of  the  view  that,  in  view  of  the  limited  scope  for
\ninterference, in a second appeal under Section 100 C.P.C.  as laid down by the
\nApex  Court in a catena of decisions, unless the case fell within one of those
\ncategories of cases where the High Court may be justified in  looking  at  the
\nevidence  afresh,  this Court cannot interfere with findings of facts recorded
\nby the lower Appellate Court which is the final Court of facts.  The mere fact
\nthat on appreciation of the evidence the Appellate  Court  came  to  record  a
\nfinding  from  which,  it may be possible to differ is not a sufficient ground
\nfor interfering in Second Appeal.  In 2005 (9) SCC  232,  (Commissioner  Hindu
\nReligious  &  Charitable  Endowments  Vs.,  P.Shanmugama and others), the Apex
\nCourt has laid down that the High Court has  no  jurisdiction  in  the  second
\nappeal  to interfere with the finding of facts recorded by the First Appellate
\nCourt after careful consideration of the evidence, oral  and  documentary,  on
\nrecord  and  it  was not open to the High Court to reverse the findings of the
\nfacts recorded by the Lower Appellate Court.  In 2 005 (10)  SCC  38  (Manicka
\nPoosali Vs.    Anjali  Ammal) the Apex Court has laid down that the High Court
\nwhile exercising its power under Section 100 of CPC, on re-appreciation of the
\nevidence cannot set aside the findings of fact recorded by the First Appellate
\nCourt unless the High Court comes to the conclusion that the findings recorded
\nby the First Appellate Court were  perverse  i.e.    based  on  misreading  of
\nevidence or  based  on  no  evidence.   In yet another decision of the Supreme
\nCourt reported in 2004 (11) SCC 394, (Basavantaraya Patel Vs.    Laxmibai  and
\nOthers)  the Honourable Supreme Court has laid down that the findings recorded
\nby the First Appellate Court were based on  appreciation  of  evidence,  which
\ncould not  be  interfered with by the High Court in the Second Appeal.  In the
\njudgment reported in 2004 (5) SCC 762 ( Thiagarajan Vs.   Sri  Venugopalaswamy
\nB.Koil  and  Others)  the  Honourable  Supreme  Court has laid down that where
\nfindings of fact by the Lower Appellate Court are based on evidence, the  High
\nCourt  in  Second Appeal cannot substitute its own findings on re-appreciation
\nof evidence merely on the ground that another view was possible.\n<\/p>\n
        The  present  case  is to be considered in the light of the above said
\nprinciples laid down by the Honourable Supreme Court.\n<\/p>\n
        18.  Though there is no scope for re-appreciation of the evidence, out
\nof deference for counsel for the appellant, who  wanted  me  to  look  at  the
\nevidence  adduced  by  the  defendants, I permitted him to place before me the
\nmaterial on record including evidence, which according to him was  adduced  by
\nthe  defendants and which according to him does not prove the due execution of
\nthe Will Ex.B.1.\n<\/p>\n
        19.  The learned counsel for the appellant drew my  attention  to  the
\ndeposition  of D.W.1 and pointed out the following answers elicited from D.W.1
\nin his cross-examination.  D.W.1 has stated  in  his  cross  examination  that
\nbecause of blood pressure, he could not recollect as to what happened even the
\nprevious  day  and  he  is not capable of remembering as to what happened even
\nhalf-an-hour earlier and he does not remember as to where Ex.B.1 was  written,
\nin which  year  month  and date on which it was written.  He does not remember
\nwhether the Will was written in the morning or in  the  evening.    D.W.1  has
\nstated  that  Ex.B.1 was written at the house of Ramachandran, but immediately
\nhe changed his version and told that Ex.B.1 was written at the house of scribe
\nPalaniswamy Chettiyar and Ex.B.1 Will was written as per the  instructions  of
\nD.W.1.  D.W.1 has stated that in Ex.B.1 Will Savadammal affixed only one thumb
\nimpression.   D.W.1  has  admitted  that  Ramachandran  took  care  of all the
\nnecessary things for the execution of Ex.B.1.  But immediately he changed  his
\nversion and stated that Ramachandran did not know anything about Ex.B.1 Will.\n<\/p>\n
        20.   The  learned counsel for the appellant also drew my attention to
\nthe evidence of D.W.2 and he points out that D.W.2 has stated  that  the  Will
\nwas  written  as  per  the  directions  of  Savadammal, which according to the
\nlearned counsel is contrary to what D.W.1 has deposed.  Learned  counsel  also
\npoints  out  that D.W.2 has stated that the Will was executed in his house and
\nhe has also stated that Ramachandran was not present  at  the  time  when  the
\nEx.B.1, Will was written which according to the learned counsel is contrary to
\nthe deposition  of  D.W.1.    Learned  counsel  also points out that D.W.3 has
\nadmitted that for writing the Ex.B.1 Will, Ramachandran  took  Savadammal  and
\nthe attesters,  D.Ws.1 and 2.  He has also pointed out that D.W.3 had admitted
\nthat her husband  went  to  Saibaba  Colony  and  obtained  the  signature  of
\nRangaraj, one  of  the  attesting witnesses.  Learned counsel also has pointed
\nout that D.W.3 has admitted that Savadammal was in the house of Raju  Chettiar
\nand  Manickkam  for  two  months  before she was admitted in hospital and even
\nbefore that she was not keeping good health and for six months  prior  to  her
\ndeath, she was not keeping well.  On the basis of the above evidence of D.Ws.1
\nto 3, the learned counsel for the appellant submits that their evidence is not
\nreliable  and  acceptable  and  he  further  submitted  that  prima facie, the
\ncircumstance that no share was made to the plaintiff and the  sixth  defendant
\nby the testator, will make the Will appear unnatural.\n<\/p>\n
        21.  Per contra, Mr.  Raja Kalifulla learned counsel appearing for the
\nrespondent  strenuously contents that the lower Appellate Court has considered
\nall the above said portions of the evidence of D.Ws.1 to 3 and has  chosen  to
\nbelieve  their  evidence  and  therefore  this Court in a second appeal cannot
\nre-appreciate the evidence and record a different finding.    Learned  counsel
\nfor  the  respondent  further submitted that it is not a case, where the Lower
\nAppellate Court has over looked any evidence or misread the evidence and it is
\nnot the submission of the learned counsel for the appellant that  the  finding
\nof the  lower Appellate Court is perverse.  The learned counsel relying upon a
\njudgment of the Apex Court  reported  in  A.I.R.1995  SC  2086  (V.S.Mane  Vs.
\nR.V.Ganeshkar)  submitted  that  a  decision  of facts arrived at by the First
\nAppellate Court could not be disturbed in Second Appeal.  The lower  Appellate
\nCourt  had  after  recording  cogent reasons accepted the testimony of the two
\nattesting witnesses and there is no reason to differ with the findings of  the
\nlower Appellate Court.  Learned counsel for the respondents also relied upon a
\njudgment  of  the  Apex Court reported in A.I.R.1971 SC 2236 (Sushila Devi Vs.
\nKrishna Kumar) wherein it is laid down as follows:-\n<\/p>\n
        “If the bequest made in a Will appears to be unnatural then the  Court
\nhas  to scrutinise the evidence in support of the execution of the Will with a
\ngreater degree of care than usual, because every person must  be  presumed  to
\nact  in  accordance with the normal human behaviour but there is no gainsaying
\nthe fact that some individuals do behave in an abnormal manner.  Judges cannot
\nimpose their own standard of  behaviour  on  those  who  execute  Wills.    As
\nobserved by this  Court  in  H.    Venkatachala  Iyengar Vs.  B.N.Thimmajamma,
\n(1959) Supp (1) SCR 426 = (A.  I.R.1959 SC 443) that the  mode  of  proving  a
\nWill does not ordinarily differ from that of proving any other document except
\nas  to the special requirement of attestation prescribed by S.63 of the Indian
\nSuccession Act.  Proof in either case cannot  be  mathematically  precise  and
\ncertain  and so that test should be one of satisfaction of the prudent mind in
\nsuch matters.  The onus must be on the propounder and in absence of suspicious
\ncircumstances surrounding the execution of the  Will,  proof  of  testamentary
\ncapacity and signature of the testator as required by law may be sufficient to
\ndischarge the  onus.    Where, however, there are suspicious circumstances the
\nonus would be on the propounder to explain them to  the  satisfaction  of  the
\nCourt before the Will can be accepted as genuine”.\n<\/p>\n
        Relying upon this judgment which has also  been  relied  upon  by  the
\nLower  Appellate  Court,  the learned counsel for the respondents submits that
\nthe mere circumstance that no share was made to the plaintiff  and  the  sixth
\ndefendant by  the testator will not make the Will appear unnatural.  Since the
\nexecution of the Will is satisfactorily proved the fact that the testator  had
\nnot  bequeathed  any  property to the plaintiff and the sixth defendant cannot
\nmake the Will invalid.  He further submitted that the  Lower  Appellate  Court
\nhas  considered  these  aspects and has rightly held that the exclusion of the
\nplaintiff and the  sixth  defendant  cannot  make  the  Will  invalid  as  the
\ndefendants  had  proved  the due execution of the Will and have also dispelled
\nall the alleged suspicious circumstances.  Learned counsel also  submits  that
\nthe  Court  cannot  impose  its  own  standard of behaviour on the person, who
\nexecuted the Will.  Learned counsel for the respondents by relying upon  on  a
\njudgment of the Apex Court reported in (Volume II (2005) S.  L.T.  38, Sridevi
\nand Others  Vs.  Jayaraja Shetty Others) submits that except the fact that the
\ntestator was old and she died within a short time after the execution  of  the
\nWill,  nothing  is brought on record to show that the testator was not in good
\nhealth and the learned counsel further submits that there is  no  averment  in
\nthe  plaint  that  the  testator  was seriously ill and she was not in a sound
\ndisposing state of mind.  He further submitted that simply because, D.W.3  had
\nadmitted  that  the testator was not ill for over a period of six months prior
\nto the execution of the Will and she was in the hospital for some  time,  that
\ndoes  not  by  itself Will show that the testator was not in a sound disposing
\nstate of mind.\n<\/p>\n
        22.   Countering  the  submission  of  the  learned  counsel  for  the
\nappellant that the earlier Will executed by the testator was a Registered Will
\nand equal distribution of property was made to the children and Ex.B.1 Will is
\nnot  registered,  the  learned  counsel  for the respondents by relying upon a
\njudgment of this Court reported in 1994 (1) MLJ  216  ,  (Rajesh  Vs.    Raja)
\nsubmits  that though registration will go a long way to dispel the doubt as to
\nthe genuineness of the Will, when  the  execution  is  proved  by  cogent  and
\nacceptable  evidence,  the Court should not disbelieve the Will merely because
\nit is not registered.  He further submits that once a Will  is  proved  to  be
\ntrue  and  it  was executed by the testator, it is not for the Court to embark
\nupon an enquiry, whether the dispositions made therein are fair and just.\n<\/p>\n
        23.  I have gone through the judgment of the Trial Court  as  well  as
\nthe  judgment  of  the  lower Appellate Court and oral evidence adduced in the
\ncase.  As pointed out above,  the  Lower  Appellate  Court  has  independently
\nconsidered the  evidence of D.Ws.1 to 3 and the evidence of P.Ws.1 and 2.  The
\nLower Appellate Court has rightly pointed out that the burden of  proving  the
\ndue  execution  of the Will, squarely lies upon defendants 1 to 5 and has also
\npointed out that the onus of proving the Will is on the propounder and in  the
\nabsence  of  suspicious  circumstances  surrounding the execution of the Will,
\nproof of testamentary capacity and then signature of the testator as  required
\nby law  is  sufficient to discharge the onus.  Thus, the Lower Appellate Court
\nhas applied the correct principles of law as laid down by  the  Supreme  Court
\nwhile considering the genuineness of Ex.B.1 Will.\n<\/p>\n
        24.   The Lower Appellate Court has pointed out that D.Ws.1 and 2 have
\nconsistently deposed that Ex.B.1, Will was executed  by  late  Savadammal  and
\nthat  Savadammal  signed  in  Ex.B.1, Will, which D.Ws.1 and 2 have witnessed.
\nFurther, it is pointed out that the evidence of D.W.s.1 and 2 is cogent on the
\naspect, that Savadammal had seen both D.Ws.1 and 2 signing in the Will.    The
\nevidence of D.Ws.1 and 2 on the aspect of mental faculty of Savadammal and she
\nhad executed  the  Will  on  her  own volition is natural and acceptable.  The
\nLower  Appellate  Court  has  pointed  out  that  both  D.Ws.1  and   2   have
\ncategorically  asserted  that  Savadammal was not in any manner pressurised to
\nexecute the Will.  It has also pointed out that D.Ws.1 and 2 are  not  in  the
\nage  group  of the legatee Ramachandran and D.W.2 is an octogenarian and D.W.1
\nis in the age of 70 and it is quite natural and probable that  Savadammal  has
\nchosen her close relatives who are elderly people as eye witness for executing
\nthe Will in favour of her younger son, Ramachandran.  D.Ws.1 and 2 who are the
\nmeternal  uncles  of  Ramachandran  as  well  as  the  plaintiff and the sixth
\ndefendant, have no axe to grind against the plaintiff and the sixth defendant.
\nAs rightly pointed out by the lower Appellate Court this important aspect  has
\nbeen omitted  to  be  considered  by  the  Trial Court.  While considering the
\nevidence of P.W.2, the husband of the sixth  defendant,  who  is  one  of  the
\nattesting witnesses to Ex.B.1, Will, the Lower Appellate Court has pointed out
\nthat P.W.2  while in the witness box admitted that Mr.  E.A.Sardar khan is the
\nAdvocate for his wife, the  sixth  defendant  and  also  he  is  the  advocate
\nappearing for  the  plaintiff.   From this, the Lower Appellate Court has held
\nthat the plaintiff and her husband P.W.1  and  P.W.2,  the  sixth  defendants
\nhusband have  joined  together and engineered the suit.  There is no reason to
\ndiffer with the above said finding.  It is quite unbelievable that P.W.2 would
\nhave signed in a Will, which according to him did not contain the signature or
\nthumb impression of Savadammal.  P.W.2 has stated that he had  not  spoken  to
\nabout the attesting of an unsigned Will to anyone including his wife before he
\ndeposed in   the  Court.    This  version  of  P.W.2  is  quite  unbelievable.
\nConsidering all the above said aspects, only the  Lower  Appellate  Court  has
\naccepted the evidence of D.Ws.1 and 2, the attestors and rejected the evidence
\nof P.Ws.1  and  2.    The  Lower  Appellate  Court  has  rightly held that the
\nexecution of Ex.B.1 Will has been duly proved by the  defendants  through  the
\nattesting  witnesses,  D.Ws.1  and  2  and  the  plaintiff has not proved t he
\nallegation of forgery.  The Lower Appellate  Court  has  also  considered  the
\nalleged   suspicious   circumstances  and  has  rightly  held  that  the  mere
\nparticipation of the legatee Ramachandran in the execution of the Ex.B.1 Will,
\nwill not in any way affect the genuineness of the Will.  The  Lower  Appellate
\nCourt  has  also  noticed  that the plaintiff and the sixth defendant have not
\nbeen examined, whereas P.W.1 the husband  of  the  plaintiff,  and  P.W.2  the
\nhusband  of  the  sixth  defendant,  alone have been examined and P.W.1 is not
\nassertive in his evidence that no such Will  was  executed  by  Sovdammal  and
\nP.W.1s  answer  is evasive, that he does not know whether Savadammal had left
\nany Will.\n<\/p>\n
        25.  The Lower Appellate Court has considered  the  exclusion  of  the
\ndaughters  namely  plaintiff  and  the  sixth  defendant and noticed that the
\nplaintiff and the sixth defendant are already married and  they  are  in  good
\nposition  in  life  and  that  would  have  weighed with the testator, for not
\nproviding a share in the property to her daughters.  The Lower Appellate Court
\nhas rightly held that the Court cannot sit over the subjective satisfaction of
\nthe testator and for reaching that conclusion the Lower  Appellate  Court  has
\nrightly  relied  upon  the  ruling of the Apex Court reported in A.I.R.1971 SC
\n2236.  The Lower Appellate Court has pointed out that it is not imperative for
\nthe testator while  executing  the  second  Will  to  state  the  reasons  for
\ncancelling the  earlier  Will.    I  agree  with  the  reasoning  of the lower
\nAppellate Court for interfering with the judgment of the Trial Court.   I  see
\nno  reason  to differ from the conclusion arrived by the Lower Appellate Court
\non the various issues discussed above.  The discrepancies pointed out  by  the
\nlearned  counsel for the appellant in the evidence of D.Ws.1 to 3 are minor in
\nnature and all those discrepancies have been considered by the lower Appellate
\nCourt.  Sitting in second appeal, this Court cannot re-appreciate the evidence
\nand come to a different conclusion.  When it is not the case of the  appellant
\ncounsel  that  the  Lower  Appellate  Court’s finding is perverse or the Lower
\nAppellate Court has overlooked the material evidence or misread  any  material
\nevidence, I do not think it proper to interfere with the findings of the Lower
\nAppellate Court.   The substantial question of law is answered by holding that
\nthe judgment of the Lower Appellate Court is not vitiated as  it  has  applied
\nthe  correct  principles  of law laid down by the Supreme Court of India while
\nconsidering the genuineness of the Will.\n<\/p>\n
        26.  Accordingly the Second Appeal fails and the  same  is  dismissed.
\nNo costs.\n<\/p>\n
Index :  Yes
\nInternet :  Yes.\n<\/p>\n
srk<\/p>\n
To,
\nThe I Additional District Judge
\nCoimbatore <\/p>\n
The I Additional District Munsif
\nCoimbatore <\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Manickam vs Sakunthala @ Rajeswari on 23 January, 2006 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 23\/01\/2006 CORAM THE HON’BLE MR. JUSTICE K.MOHAN RAM Second Appeal No.946 of 1995 Manickam .. Appellant -Vs- 1. Sakunthala @ Rajeswari 2. Sundararajan 3. Muruganandam 4. Babu 5. Raghupathy 6. Saraswathi .. Respondents. Appeal […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-76370","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nManickam vs Sakunthala @ Rajeswari on 23 January, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/manickam-vs-sakunthala-rajeswari-on-23-january-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Manickam vs Sakunthala @ Rajeswari on 23 January, 2006 - 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