{"id":86210,"date":"2010-03-30T00:00:00","date_gmt":"2010-03-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bhagavathiammal-vs-marimuthu-ammal-on-30-march-2010"},"modified":"2019-03-01T16:33:56","modified_gmt":"2019-03-01T11:03:56","slug":"bhagavathiammal-vs-marimuthu-ammal-on-30-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bhagavathiammal-vs-marimuthu-ammal-on-30-march-2010","title":{"rendered":"Bhagavathiammal vs Marimuthu Ammal on 30 March, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Bhagavathiammal vs Marimuthu Ammal on 30 March, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 30\/03\/2010\n\nCORAM\nTHE HONOURABLE MR.JUSTICE G.M.AKBAR ALI\n\nS.A.(MD)No.217 of 2004\nand\nC.M.P.(MD)No.928 of 2004\n\nBhagavathiammal\n\t\t\t\t\t\t...\tAppellant\/\n\t\t\t\t\t\t\tAppellant\/\n\t\t\t\t\t\t\t8th Defendant\n\nVs\n\n1.Marimuthu Ammal\n2.Kolappa Konar\n3.Kshetra Bala Konar\n4.Gomathi Ammal\n5.Nagamony\n6.Thangam\n7.T.Kannaki\n\t\t\t\t\t\t...\tRespondents\n\t\t\t\t\t\t\tPlaintiff and\n\t\t\t\t\t\t\tDefendants 1,3,5,6,9&10\/\n\t\t\t\t\t\t\tRespondents\n\n\nPRAYER\n\nThe Appeal is filed under Section 100 of C.P.C. against the judgment\nand decree dated 12.07.2004 in A.S.No.15 of 2004 by the First Additional\nSubordinate Judge, Nagercoil, confirming the judgment and decree dated\n25.11.2003 in O.S.No.249 of 1981 by the Principal District Munsif, Nagercoil.\n\n!For Appellants    ...  Mr.K.Sreekumaran Nair\n^For Respondents   ...  Mr.S.Ponsenthil Kumar for R1\n\t\t        Mr.Ajmal Khan for R5\n\n:JUDGMENT\n<\/pre>\n
\tThe second appeal is preferred against the judgment and decree dated
\n12.07.2004 in A.S.No.15 of 2004 by the First Additional Sub Judge, Nagercoil,
\nconfirming the judgment and decree dated 25.11.2003 in O.S.No.249 of 1981 by the
\nPrincipal District Munsif, Nagercoil.  The 8th defendant is the appellant.  The
\nsuit is filed for declaration and for recovery of possession and profits.\n<\/p>\n
\t2.The brief facts of the case are as follows:\n<\/p>\n
\tThe plaintiff is the sister of the defendants 1 to 3 and there was one
\nmore brother viz., Mani @ Ramachandran, who was a mentally ill person, who died
\non 13.04.1980.  Their mother Issakkiamma executed a “Will” dated 18.03.l977 and
\nshe died on 04.01.1978.  According to the said “Will”, after the death of the
\nsaid Ramachandran the suit property is to devolve on the plaintiff.  The said
\nRamachandran was under the care and custody of the plaintiff.  After the death
\nof the said Issakkiammal the defendants 1 to 3 did not hand-over the property to
\nthe plaintiff.  Even after the death of the said Ramachandran, the defendants
\nfailed to hand over the property to the plaintiff.  The defendants 4 and 5 are
\nin possession of the property. Therefore, the suit is filed for declaration of
\ntitle and for recovery of possession.\n<\/p>\n
\t3.The suit was resisted by the defendants and all the 8 defendants have
\nfiled separate written statements.  The defendants 1 to 3 had denied the “Will”
\ndated 18.03.1977 and they have also denied that the said Ramachandran was a
\nmentally ill patient and the second defendant would state that the said
\nRamachandran had leased out the first item of the property to one Nagamani in
\nthe year 1978 and the said Ramachandran had also executed a “Will” dated
\n01.04.1980 in favour of the second defendant and the second defendant has sold
\nthe property by a sale deed 14.07.1981 and the plaintiff has no right or title
\nover the property.\n<\/p>\n
\t4.The 6th defendant has supported the case of the second defendant as he
\nis the purchaser from him and the 5th defendant would state that she is not a
\nnecessary party to the suit as her husband Nagamani is a lessee under the said
\nRamachandran for the first item of the suit property.\n<\/p>\n
\t5.The 4th defendant would state that as per the “Will” dated 18.03.1977,
\nafter the death of the said Issakiamai her husband Sundalayandi Konar was in
\npossession of the property for his life time and after his death, the persons
\nmentioned in the “Will” has to enjoy the property and the said Sudailaiandi
\nKonar is alive.  The E Schedule of the property was given to the said
\nRamachandran.  The 4th defendant has an interest over the 2nd item of the
\nproperty and he was allowed to possess and enjoy the property.\n<\/p>\n
\t6.The 7th defendant would also state that the said Issakkiamma had
\nexecuted a dated 29.08.1968 “Will” and bequeathed the property to the children,
\nKolappa Konar, Setharabalan, Krishnan, Marimuthu and Bagavathiammal.  The said
\nRamachandran was given certain properties and he was not mentally well and the
\n8th defendant was taking care of him and treating him and by a “Will” dated
\n29.08.1968 the 7th defendant has become the absolute owner of the property. On a
\nsettlement deed dated 29.07.1982, the 7th defendant has given the property to
\nthe 8th defendant.  He denied the suit will.\n<\/p>\n
\t7.The 8th defendant would also support the averments of the 7th defendant
\nand would state that she is entitled for the suit property.  The plaintiff filed
\na reply statement denying the averments made by the defendants.\n<\/p>\n
\t8.Based on the above averments, the learned District Munsif framed as many
\nas 16 issues and on basis of the oral and documentary evidence found that the
\ndefendants have created many documents after the death of the Issakkiamma and
\nthe 8th defendant has created a document which is not believable and found that
\nthe plaintiff has proved her case and had decreed the suit.\n<\/p>\n
\t9.Aggrieved by which, the 8th defendant alone had preferred an appeal
\nbefore the Sub Court, Nagercoil and the First Appellate Court had initially
\nremanded the matter for proving of the suit will and once again the trail court
\ndecreed the suit and on appeal, the first appellate court once again considered
\nall the evidences and had concurred with the Trial Court and has dismissed the
\nappeal against which, the second appeal is filed on various grounds and this
\ncourt has framed the following substantial questions of law:\n<\/p>\n
“a)Whether the finding of the courts below that the Ex.A1 was proved is correct
\nin spite of the fact that the plaintiff did not examine both the attesters and
\none of the attesters who was impleaded specifically denied the execution of Will
\nEx.A1?\n<\/p>\n
\tb)Whether the lower court is right in upholding the “Will” merely on the
\nbasis of an opinion of the expert that the thumb impression contained in the 6th
\npage of Ex.A1 “Will” tallied with that of the admitted thumb impression and
\nIssakkiamma especially when there was clear evidence in Ex.B31 that the original
\n“Will” had only 4 pages not 6 pages?\n<\/p>\n
\tc)Whether the courts below erred in following the principle that the
\npropounder of the Will has to prove the same?”\n<\/p>\n
\t10.The admitted facts are as follows:\n<\/p>\n
\tThe 7th defendant one Sudalaiandi Konar (since died) and Issakkiamma had
\nfour sons and two daughters.  The defendants 1 to 3 are the sons and the
\nplaintiff Marimuthammal and the 8th defendant Bagavathiammal are the daughters
\nand one Mani @ Ramachandran was also a son.   Issakkiamma executed a “Will”
\ndated 28.09.1968 under Ex.B.31.  The said Mani @ Ramachandran was a mentally ill
\npatient and the suit property was allotted to him.  According to the plaintiff,
\nIssakkiamma executed a “Will” dated 18.03.1977, Ex.A1, under which, the earlier
\nwill was cancelled and the suit property was allotted to the 7th defendant for
\nhis lifetime and the said Mani @ Ramachandran to be taken care of from the
\nincome and thereafter if he becomes a normal person the property has to go to
\nhim and in the event of his death, the property is to devolve upon the
\nplaintiff.  Under this “Will” the earlier “Will” was cancelled and there were
\nmany transactions and proceedings between the plaintiff and her sister regarding
\nthe suit property and both were claiming title through the respective “Will”.
\nThere were many transactions and also claims that they were the persons taking
\ncare of  the said Mani @ Ramachandran who died on 13.04.1980.  The plaintiff
\nclaiming title and possession filed a suit in the year 1981 after a remand by
\nthe Appellate Court now it has reached  the second appeal stage of litigation
\nand the sisters are fighting for the last 30 years.\n<\/p>\n
\t11.However the plaintiff was called upon to prove the suit will. As both
\nthe attestors were not alive to prove the execution of the “Will”, the Trial
\nCourt proceeded under Section 69 of the Indian Evidence Act. The Trial Court,
\nafter remand from the Appellate Court had subjected the “Will” for an expert
\nopinion to compare with the available thumb impression of the said Issakkiamma
\nand held that the “Will” is proved in the manner known to law.  Both the courts
\nbelow have held that Ex.A1, the disputed “Will” dated 18.03.1977 was proved by
\nthe propounder and the correctness of such finding is questioned in this second
\nappeal.\n<\/p>\n
\t12.Mr.K.Sreekumaran Nair, learned counsel for the appellant would submit
\nthat the execution of the “Will” was not proved in accordance with Section 68 of
\nthe Evidence Act and Section 63 of Indian Succession Act.  The learned counsel
\npointed out that the 7th defendant who is one of the attestor in the “Will” had
\ndenied the execution of the “Will” and the Courts below upholding the “Will” on
\nthe basis of an opinion of the expert is against law and therefore, the “Will”
\nhas to be rejected.  The learned counsel also pointed out that Ex.A1 is a
\nmanipulated document and therefore, the reliance ought not have been placed on
\nthe disputed “Will”.\n<\/p>\n
\t13.The learned counsel relied on the following decisions reported in :-\n<\/p>\n
1)2002(1)LW 460 (N.Kamalam (dead) and another Vs. Ayyasamy and another) wherein
\nthe Supreme Court has held as follows:\n<\/p>\n
“25.The requirement of attestation presently in the Country is statutory in
\nnature, as noticed herein before, and cannot as such be done away with under any
\ncircumstances.  While it is true that in a testamentary disposition, the intent
\nof the attestor shall have to be assessed in its proper perspective but that
\ndoes not however mean and imply non-compliance of a statutory requirement. The
\nintention of the attestor and its paramount importance cannot thwart the
\nstatutory requirement. …”\n<\/p>\n
2)2003(1) CTC 308 (Janki Narayan Bhoir Vs. Narayan Namdeo Kadam) wherein the
\nSupreme Court has held as follows:\n<\/p>\n
“8.To say will has been duly executed the requirements mentioned in clauses (a),\n<\/p>\n
(b) and (c) of Section 63 of the Succession Act are to be complied with i.e.,\n<\/p>\n
(a) the testator has to sign or affix his mark to the will, or it has got to be
\nsigned by some other person in his presence and by his direction; (b) that the
\nsignature or mark of the testator, or the signature of the person signing at his
\ndirection, has to appear at a place from which it could appear that by that mark
\nor signature the document is intended to have effect as a will; (c)the most
\nimportant point with which we are presently concerned in this appeal, is that
\nthe will has to be attested by two or more witnesses and each of these witnesses
\nmust have seen the testator sign or affix his mark to the Will, or must have
\nseen some other person sign the Will in the presence and by the direction of the
\ntestator, or must have received from the testator a personal acknowledgement of
\nsignature or mark, or of the signature of such other person, and each of the
\nwitness has to sign the will in the presence of the testator.”\n<\/p>\n
3)2005(1) CTC 11 (Janaki Devi Vs. R.Vasanthi and others) wherein this Court has
\nheld as follows:\n<\/p>\n
“…Sections 69 and 71 of the Indian Evidence Act is an exception to the general
\nrule contained in Section 68 of the Indian Evidence Act.  Under Section 69 of
\nthe Indian Evidence Act, if no attesting witness is found it can be proved by
\nother evidence that the attestation of one attesting witness at least is in his
\nhandwriting and that the signature of the person executing the document is in
\nthe handwriting of that person. Section 71 of the Indian Evidence Act is to meet
\nthe situation, where it is not possible to prove the execution of a Will by
\ncalling the attesting witness, though alive, or when the attesting witnesses
\nhave been called, they deny or fail to recollect the execution of the document.
\nIn that way, Section 71 of the Indian Evidence Act is incorporated to safeguard
\nthe mandatory provisions of Section 68 of the Indian Evidence Act.  Section 71
\nof the Indian Evidence Act is only to give assistance and come to rescue of a
\nparty who has taken steps to get attesting witness to give evidence, but he
\nfailed to such witness denied or failed to recollect the execution of the Will.
\nThis is only with a view to prove the due execution by “other evidence”….”\n<\/p>\n
4)AIR 2008 SC 2485 (Babu Singh and others V. Ram Sahai<\/a> @ Ramsingh) wherein the
\nSupreme Court has held as follows:\n<\/p>\n
“14.It would apply, inter alia, in a case where the attesting witness is either
\ndead or out of the jurisdiction of the court or kept out of the way by the
\nadverse party or cannot be traced despite diligent search.  Only in that event,
\nthe Will may be proved in the manner indicated in Section 69, i.e.,by examining
\nwitnesses who were able to prove the handwriting of the testator or executant.
\nThe burden of proof then may be shifted to others.”\n<\/p>\n
\t14.On the contrary, Mr.Pon Senthil Kumar, learned counsel for the first
\nrespondent would submit that both the courts below have tested the “Will” and
\nhas come to the conclusion that the “Will” was executed in accordance with law
\nand therefore, the finding cannot be challenged in the second appeal.  The
\nlearned counsel pointed out that when both the attesters were not available, the
\nplaintiff is bound to prove the “Will” in some other means and therefore, the
\nthumb impression has been subjected for expert opinion and that proved to be the
\nthumb impression of the executant.\n<\/p>\n
\t15.Heard the learned counsel for the appellant and the learned counsel for
\nthe respondent and perused the material on record.\n<\/p>\n
\t16.Section 63 of the Indian Succession Act reads as follows:
\n“63.Execution of unprivileged Wills.-Every testator, not being a soldier
\nemployed in an expedition or engaged in actual warfare (or an airman so employed
\nor engaged) or a mariner at sea, shall execute his will according o the
\nfollowing rules:-\n<\/p>\n
(a)The testator shall sign or shall affix his mark to the Will, or it shall be
\nsigned by some other person in his presence and by his direction.\n<\/p>\n
(b)The signature or mark of the testator, or the signature of the person signing
\nfor him, shall be so placed that it shall appear that it was intended thereby to
\ngive effect to the writing as a Will.\n<\/p>\n
(c)The Will shall be attested by two or more witnesses, each of whom has seen
\nthe testator sign or affix his mark to the Will or has been some other person
\nsign the Will, in the presence and by the direction of the testator, or has
\nreceived from the testator a personal acknowledgement of his signature or mark,
\nor of the signature of such other person; and each of the witnesses shall sign
\nthe Will in the presence of the testator, but it shall not be necessary that
\nmore than one witness be present at the same time, and no particular form of
\nattestation shall be necessary.”\n<\/p>\n
\t17.Section 68, 69 and 71 of the Indian Evidence Act read as follows:
\n“68.Proof of execution of document required by law to be attested.-If a document
\nis required by law to be attested, it shall not be used as evidence until one
\nattesting witness at least has been called for the purpose of proving its
\nexecution, if there be an attesting witness alive, and subject to the process of
\nthe Court and capable of giving evidence:\n<\/p>\n
(Provided that it shall not be necessary to call an attesting witnesses in proof
\nof the execution of any document, not being a Will, which has been registered in
\naccordance with the provisions of the Indian Registration Act, 1908 (16 of
\n1908), unless its execution by the person by whom it purports to have been
\nexecuted is specifically denied.)<\/p>\n
69.Proof where no attesting witness found.-If no such attesting witnesses can be
\nfound, or if the document purports to have been executed in the United Kingdom,
\nit must be proved that the attestation of one attesting witness at least is in
\nhis handwriting, and that the signature of the person executing the document is
\nin the handwriting of that person.\n<\/p>\n
71.Proof when attesting witness denies the execution.-If the attesting witness
\ndenies or does not recollect the execution of the document, its execution may be
\nproved by other evidence.”\n<\/p>\n
\t18.Ex.A1 is the registered “Will” dated 18.03.1977 which was executed by
\nthe said Issakkiamma and under this “Will” Schedule-C which is the suit
\nproperty, has been allotted to Mani @ Ramachandran on condition that her husband
\nSundalaiandi Konar (7th defendant, since died) has to enjoy the said property
\nduring his life time with the help of her daughter Marimuthammal (plaintiff) and
\nto maintain the said Mani @ Ramachandran, who is mentally ill and if the said
\nMani @ Ramachandran has become normal, he is entitled to take the property and
\nin the event of his death, the said Marimuthammal has to enjoy the property
\nabsolutely.  There were two attesting witnesses in the said “Will” and one of
\nthe attesting witness is her husband Sudalaiandi Konar himself.\n<\/p>\n
\t19.When the suit was filed, Sudalaiandi Konar was alive and later he was
\nimpleaded as a party to the suit.  The suit was taken up for trial and the
\nplaintiff was examined on 14.12.1983.  The 7th defendant who was aged 85 years
\nat the time of filing of the suit and was living with the appellant and he
\nsailed along with the appellant and had denied the execution of the “Will” and
\nhence, was not examined as one of the attester by the plaintiff.  As far as the
\nother attester is concerned he has signed in Malayalam and the plaintiff has not
\neven mentioned his name.  The name and address are also not available in the
\ndocument.  One Antonysamy of Nagercoil was the scribe of the “Will” and he was
\nexamined as P.W.3. He would say that the first attesting eitness was one
\nParameswaran Pillai son of Chellappan Pillai of Suseendaram and he is not alive.
\nTherefore, the plaintiff has no other alternative except to invoke Section 69 of
\nthe Indian Evidence Act.\n<\/p>\n
\t20.It is well settled that under Section 69 of the Act the plaintiff has
\nto examine some one who is acquainted with the handwriting of at least one
\nattesting witness and such witness should depose that signature of the attesting
\nwitness found in the “Will” is that of the attesting witness whose signature he
\nis familiar with and the signature of the testator whose signature he is
\nfamiliar with.\n<\/p>\n
\t21.In 2008 (14) SCC 754, the interpretation of Section 69 of the Act, was
\nanalysed by the Supreme Court.  The case before the Supreme Court was that a
\n“Will” was executed by one ‘X’ in favour of the plaintiff on 25.09.1991 and the
\nsame was duly registered on the same date and the said “Will” was attested by
\ntwo witnesses ‘Y’ and ‘Z’ and one of the attesting witness ‘Y’ died and the
\nother witness ‘Z’ was alive but has joined hands with the opposite party and
\ncould not be examined and the scribe of the “Will” was examined.  However, no
\nsteps were taken to examine ‘Z’ and a statement was made by the counsel for the
\nplaintiff before the First Appellate Court that ‘Z’ has joined hands with the
\nopposite party.  Under those circumstances, the Supreme Court has held that
\nSection 69 of the Act, have no application.\n<\/p>\n
\t22.In 2003(1) CTC 308, the Supreme Court has held as<\/p>\n
“11.Section 11 of the Evidence Act is in the nature of a safeguard to the
\nmandatory provisions of Section 68, Evidence Act, to meet a situation where it
\nis not possible to prove the execution of the will by calling attesting
\nwitnesses, though alive.  This section provides that if an attesting witness
\ndenies or does not recollect the execution of the Will, its execution may be
\nproved by other evidence Aid of Section 71 can be taken only when the attesting
\nwitnesses, who have been called, deny or fail to recollect the execution of the
\ndocument to prove it by other evidence.  Section 71 has no application to a case
\nwhere one attesting witness, who alone has been summoned, has failed to prove
\nthe execution of the will and other attesting witnesses though are available to
\nprove the execution of the same, for the reasons best known, have not been
\nsummoned before the court.  It is clear from the language of Section 71 that if
\nan attesting witness denies or does not recollect execution of the document, its
\nexecution may be proved by other evidence. …”\n<\/p>\n
\t23.Therefore, the facts of the case dealt in the above two decisions are
\nnot applicable to the facts of the case on hand.\n<\/p>\n
\t24.In 1997(2) CTC 369 (Mohammed Mohideen Vs. Muthukumara Thevar and
\nanother), a learned Single Judge of this Court held as follows:\n<\/p>\n
“2.Section 69 of the Evidence Act requires the person to prove that the
\nsignature of the executor is in his handwriting and the defendant has let in
\nevidence by examining DW.2 that the executor has signed the will in his presence
\nand the attesting witnesses have also signed in his presence.  This evidence has
\nnot been challenged in the cross-examination and as such the courts below have
\naccepted this evidence and found that the will is genuine.  I do not find any
\nirregularity in the finding of both the courts below with regard to the
\ngenuineness of the will.”\n<\/p>\n
\t25.The decision of the learned Single Judge was challenged by way of
\nfiling O.S.A. before a Division Bench and the same was reported in 2005(1) CTC\n<\/p>\n
11.  The Division Bench after referring various decisions upheld the finding of
\nthe learned Single Judge, where the Single Judge had held that the examination
\nof the scribe to satisfy the two conditions of Section 69 of the Act is enough
\nto prove the “Will”.\n<\/p>\n
\t26.In 1999(3) CTC 378 (R.Vasanthi Vs. Janaki Devi and others), this Court
\nhas held as follows:\n<\/p>\n
“…These two decisions based on Section 69 would go to show that in the
\ncircumstances when both the attesting witnesses could not be examined, the
\nsignature of any one of the attesting witnesses in his handwriting can be proved
\nthrough a witness who known the signature of the said attesting witnesses. The
\nplaintiff as P.W.1 has clearly stated that she knows the signature of both
\nattesting witnesses and identified their signatures as she was present at the
\ntime of attestation of Ex.P.1 and as such the proof required under law has been
\nsatisfied by the plaintiff.”\n<\/p>\n
\t27.It is well settled that a “Will” has to be proved as required under law
\nwith regard to Section 63 of the Indian Succession Act and under the provisions
\nof Section 68 of the Indian Evidence Act.  Section 69 of the Act comes into the
\napplication where no attesting witness is found.  It is an enabling provision
\nfor the propounder to prove the “Will” when there is no attesting witness found.
\nThis provision will be applicable in a case where the attesting witness is
\neither dead or out of the jurisdiction of the Court or kept out of the way by
\nthe adverse party or cannot be traced out despite diligent search.  Under
\nSection 68 of the Act, the propounder is expected to call upon to examine at
\nleast one attesting witness in addition to lead evidence to explain the
\nsurrounding suspicious circumstances if any raised by the opposite party.
\nHowever, under Section 69 of the Act the propounder is called upon to examine
\nwitness, who are able to prove the handwriting of at least one attesting witness
\nand the handwriting of the testator and the burden of prove is then shifted to
\nothers, who denies the execution of “Will”. Section 71 of the Indian Evidence
\nAct, comes into application, when the attesting witness is summoned and while
\nexamination, denies or does not recollect the execution of the document.
\nTherefore, if the mandate under Section 68 of the Act could not be performed
\nthen Section 69 of the Act lends help to the propounder and if the propounder
\nexamines any one person to prove that the attestation of the one attesting
\nwitness at least is in his handwriting and the signature of the person executing
\nthe document is in the handwriting of that person.\n<\/p>\n
\t28.In the present case, one attesting witness is dead and another
\nattesting witness was arrayed as 7th defendant and had denied the execution of
\nthe “Will” itself and he also died during the pendancy of the trial.  Had he
\nbeen summoned to give evidence, he would have denied the execution of the
\ndocument and then Section 71 of the Act would have been pressed into service.
\nTherefore, in the present case Section 69 of the Act alone is applicable.\n<\/p>\n
\t29.P.W.3 the scribe was examined and he had stated that the executant had
\naffixed her thumb impression in Ex.A1 and the attesting witnesses had also
\nsigned in his presence.  The thumb impression of the executant was also
\nsubjected for examination by an expert and he has opined that the thumb
\nimpression found in Ex.A1 on comparison to the thumb impression of the executant
\nin other documents were found to be the same.\n<\/p>\n
\t30.The difference between Section 68 and Section 69 of the Act is, in the
\nformer, one attesting witness at least has to be called for for the purpose of
\nproving its execution and in the later, it must be proved that the attestation
\nof one attesting witness at least is in his handwriting and the signature of the
\nperson executing the document is in the handwriting of that person. Section 69
\nof the Act does not specify the mode of such prove.  In other words, the
\nhandwriting can be spoken by a person who has acquaintance of the handwriting or
\nthe signature can be proved by comparison with the admitted handwriting or the
\nsignature of the person executing the document.\n<\/p>\n
\t31.Though the scribe cannot speak about the execution of a document, he
\ncan always speak about the attestation and the signature of the attesting
\nwitness and the executant   and he is a competent witness when section 69 of the
\nAct is pressed into service.\n<\/p>\n
\t32.In the present case, the scribe has spoken about attestation of one
\nattesting witness and the thumb impression of the executant and further more the
\nthumb impression in the disputed document is compared by an expert with the
\nadmitted thumb impression of the executant and found to be the same.  Therefore,
\nthe requirement under Section 69 of the Act is complied with. In order to prove
\na will the propounder is expected to examine at least one attesting witness in
\naddition to lead evidence to explain the surrounding suspicious circumstances if
\nany raised by the opposite party. As stated above the the requirement under
\nsection 69 of the Act has been complied with and as far as the evidence to
\nexplain the surrounding suspicious circumstances, both the courts below have
\nconcurrently found on facts that the plaintiff has explained the circumstances
\nunder which the testator had cancelled the earlier will and executed the suit
\nwill.  The courts below have rightly found that the execution of the “Will” is
\nproved and I have no reason to interfere with.  The question of law are answered
\naccordingly.\n<\/p>\n
\t33.In the result, the appeal is dismissed and and the judgment and decree
\nof the Appellate Court is confirmed.  No costs.  Consequently, connected M.P.is
\nclosed.\n<\/p>\n
nbj<\/p>\n
To<\/p>\n
1.The First Additional Subordinate Court,
\n  Nagercoil.\n<\/p>\n
2.The Principal District Munsif, Nagercoil.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Bhagavathiammal vs Marimuthu Ammal on 30 March, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30\/03\/2010 CORAM THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI S.A.(MD)No.217 of 2004 and C.M.P.(MD)No.928 of 2004 Bhagavathiammal … Appellant\/ Appellant\/ 8th Defendant Vs 1.Marimuthu Ammal 2.Kolappa Konar 3.Kshetra Bala Konar 4.Gomathi Ammal 5.Nagamony 6.Thangam 7.T.Kannaki … Respondents […]<\/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-86210","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nBhagavathiammal vs Marimuthu Ammal on 30 March, 2010 - 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\/bhagavathiammal-vs-marimuthu-ammal-on-30-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bhagavathiammal vs Marimuthu Ammal on 30 March, 2010 - 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