IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE:24-07-2009 CORAM THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN AND THE HONOURABLE MR. JUSTICE C. T. SELVAM L.P.A.No.140 of 2002 1. Appavu Mudaliar 2. Rathina Mudaliar 3. Govindasamy Mudaliar 4. Rajakumari … Appellants/Defendants 1 to 3 and 8 Vs. 1. Manickkammal 2. Meenakshi Ammal 3. Balambal Ammal 4. Kumarasamy Gounder 5. Superintendent of Post Office Pondicherry District, Pondicherry. 6. Kumar 7. Mangalakshmi … Respondents/Plaintiffs 1 to 3 and Defendants 4 to 7 Letters Patent Appeal filed under Clause 15 of the Letters Patent against the judgment and decree passed in A.S.No.272 of 1989 dated 23-07-201 allowing the said appeal and reversing the decree and judgment passed in O.S.No.37 of 1981 dated 01-09-1988 on the file of the learned Subordinate Judge Tindivanam and praying to set aside the same. For appellants :: Mr. R. Subramanian, Senior Counsel for M/s. S. Hemalatha For respondents:: Mr. R. Sundarrajan for R2 R1, RR3 to 6 – No appearance JUDGMENT (PRABHA SRIDEVAN,J.) The defendants 1 to 3 and 8 are the appellants. They succeeded before the Trial Court but lost in the first appeal. The averments in the plaint in brief are as follows: https://hcservices.ecourts.gov.in/hcservices/ (i) The plaintiffs are the daughters and the defendants 1 and 2 are the sons of one Ponnaiah Mudaliar and Unnamalai Ammal both deceased. Both of them died intestate, the mother on 20-05- 1978 and the father on 23-08-1979. The third defendant is the son of the first defendant. The eighth defendant is the sister of the third defendanint and daughter of the first defendant. There was a registered partition deed where the properties held by Ponnaiah Mudaliar was divided amongst him, his wife and the defendants 1 and 2. The properties allotted to Ponnaiah Mudaliar are the A Schedule properties. The properties allotted to his wife Unnamalai Ammal are the B Schedule properties. The properties allotted to defendants 1 and 2 are C and D Schedule properties. E Schedule properties were kept in common between the defendants 1 and 2 who were directed to maintain the first wife of the first defendant out of the income. The parents were living with their sons namely defendants 1 and 2. Ponnaiah Mudaliar was running a rice mill, which was earning a good income. Part of the property in C Schedule was sold by defendants 1 and 2 to the fourth defendant and therefore, he was made a party to the suit by way of amendment pleading that the sale was not binding on the appellant. The fifth defendant was one of the tenant and therefore, is made a party to the suit. Sixth and seventh defendant are made parties likewise. In view of the contention of the first defendant that Unnamalai Ammal has executed a Will in favour of eighth defendant, the daughter of the first defendant of whom the B Schedule items 7 to 10 were bequeathed was also made a party to the suit by way of amendment. Since the defendants did not agree to divide the property, after the death of the parents, the suit had to be filed. (ii) The first defendant filed the written statement in which he admitted the relationship but had denied that the appellants had died intestate. It was specifically pleaded that the father had executed a Will on 05-02-1979 bequeathing all the properties including the rice mill to defendants 1 and 2. The Will was duly proclaimed during the funeral ceremonies and the beneficiaries had also taken possession of the properties as per the Will. It was also pleaded that by a settlement deed dated 17- 08-1977 his mother had settled the plaint. Item Nos.1 to 6 of B Schedule property to D3 his son, which was accepted by him. He also pleaded that suit item Nos.7 to 10 of B Schedule were bequeathed by Unnamalai Ammal to her daughter Rajakumari under the Will dated 20-02-1978 which was also duly executed and attested. It was pleaded that Unnamalai Ammal executed the two documents voluntarily and she had some reason for bequeathing and setting properties as she did. Therefore, according to the first defendant, the suit had to be dismissed. (iii) The defendants 2 and 3 filed a separate written statement. They too pleaded that Ponnaiah Mudaliar did not die intestate. He had executed a Will on 05-02- https://hcservices.ecourts.gov.in/hcservices/ 1979 which was attested and had excluded his daughters and therefore, the plaintiffs had no share in the A Schedule property. In his written statement too, there was reference to the settlement dated 17-08-1977 and the Will dated 20-02-1978. (iv) Before the Trial Court, the plaintiffs marked 12 documents, the defendants marked 28 documents. The Commissioner's report was marked as Ex-C1. The second plaintiff examined herself as P.W.1, the Advocate Commissioner as P.W.2 and the handwriting expert P.W.3. On the side of the defendants, the second defendant was examined as D.W.1; the third defendant as D.W.2; D.W.3 is the attestor to Ex-B5 Will. D.W.4 is the scribe of Ex-B6; D.W.5 is another handwriting expert; D.W.6 is a vakil's clerk. The Trial Court dismissed the suit for partition holding that Ex-B4 settlement deed and Ex-B5 Will both by Unnamalai Ammal and Ex-B6, the Will of Ponnaiah Mudaliar had been duly proved. (v) Therefore, the plaintiffs filed A.S.No.272 of 1989. The appeal was allowed on the ground that there are suspicious circumstances in the execution of Exs-B4 to B6. The learned Single Judge did not take into account the evidence of either P.W.3 or D.W.5, the fingerprint experts not being impressed with their statements, but, however, held that the suspicious circumstances had not been properly explained by the evidence. Aggrieved by this, the present appeal has been filed. 2. Mr. R. Subramanian, learned Senior Counsel for the appellant submitted that there are clear recitals in the documents Exs.B-4, 5 and 6 explaining as to why the daughters were not given anything. He submitted that as far as the settlement deed is concerned, it is registered and unless the executants of the said deed repudiate it, it must be held to be proved. He also submitted that though the scribe Rajagopal has not been examined, D.W.1, the attesting witness, has spoken of the execution and registration. He submitted that as regards Ex.B-5, D.W.1 is the scribe and D.Ws.2 and 3 are the attesting witnesses. They have spoken of its due execution and attestation and also the fact that the Will was read out to the testatrix. He submitted that the beneficiary under the Will is neither D.W.1 nor D.W.2, but one Rajakumari, who is the daughter of D.W.1's brother. He submitted that D.W.3 is a stranger and there is no reason why his evidence must be suspected. Except for a suggestion that D.W.3 and his father are the henchmen of the defendants, there is nothing in the evidence of D.W.3 that merits suspicion. The learned counsel submitted that there is evidence to show that the Will was read out to Unnamalai Ammal. According to the learned counsel, the Will was proved to have been executed by Unnamalai Ammal in a sound and disposing state of mind. Next is Ex.B-6, the Will of Ponnaiah. The learned counsel submitted that there were as many as four attesting witnesses and D.W.3, the son of the attesting witnesses, had identified his father’s signature. So, according to the learned counsel, since the attestation of one witness was proved, this Will was also duly proved. https://hcservices.ecourts.gov.in/hcservices/ 3. The learned counsel for the respondents submitted that the learned Single judge had considered the evidence of the defendant’s witnesses and it is only because of the contradictions in the evidence that the Wills and the settlement deed were disbelieved. The learned counsel submitted that unless the conclusions in the appellate judgment were totally unacceptable, this Court should not interfere. 4. Here, we have three documents on the basis of which the appellants claim that the respondents are not entitled to any right in the properties. They are Ex.B-6 the Will of Ponnaiah and Exs.B-4 and 5, the settlement deed and Will of Unnamalai Ammal respectively. The rights of the appellant will depend on the acceptability and proof of these documents. 5. (i) Section 63 of the Indian Succession Act reads as follows: “Every testator, not being a soldier employed in a expedition or engaged in actual warfare [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:-- (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (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 been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the 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 that more than one witness be present at the same time, and no particular form of attestation shall be necessary.” (ii) Section 68 of the Indian Evidence Act, 1872 reads as follows: “68. Proof of execution of document required by law to be attested.—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been 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: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions https://hcservices.ecourts.gov.in/hcservices/ of the Indian Registration Act, 1908, (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied.” 6. We will examine the pleadings and evidence of the three disputed documents with regard to Evidence Act: (i) Pleadings : The plaintiffs have not pleaded that the Wills are not true or that they have been executed as a result of fraud, coercion, undue influence, or that the testator/ testatrix were not aware of the contents of the Wills they have allegedly executed. Even after the written statements were filed, they have not filed any additional pleadings. This may not seriously affect their case, since it is the defendants who are burdened with the duty to prove the three documents to the satisfaction of the Court. (ii) Plaintiff’s evidence : P.W.1 is the 2nd Plaintiff. In her evidence, she has stated that her parents had not executed any Will. Her father and the 1st defendant jointly managed the properties and that they lived together. She has further stated that her mother did not give any property to Rajakumari, and that her mother used to sign her name and that she was unwell for a year before her death. It is not correct to say that during this period she used to affix her thumb impression. She has stated that she is not aware that her mother has settled the properties on the 3rd defendant. She has stated that there is no enmity between the plaintiffs and the witnesses to Ex.B-6. She is unable to say whether the signatures in documents shown are her father’s signatures. So there is no attack by this witness on the Will or the settlement deed. P.W.2 is the Advocate Commissioner. According to him, he had taken a list of documents when he visited the suit property and some of the documents were blank papers with Ponnaiah’s signature on them. P.W.3 is a Handwriting Expert, who has opined that the signature of Ponnaiah in Ex.B-6 does not tally with his admitted signature. Therefore, the pleadings and the evidence of the plaintiffs may affect the credibility of the Will, Ex.B-6 and nothing else. 7. But we cannot forget that the defendants are bound to prove the three documents and we will see if they have discharged their burden. 8. Ex.B-6 is the Will of Ponnaiah. Not less than four witnesses have attested the said Will. They are Venu Naidu, Chandrasekharan, M. Samikkannu and Perumal. D.W. 4, Kuppuswami is an acquaintance of both the plaintiffs and the defendants. He is https://hcservices.ecourts.gov.in/hcservices/ the scribe of Ex.B-6. He has stated that except for Perumal, all the other witnesses are alive. P.W.2, Dhanusu is Perumal’s son. He has identified his father’s signature. On the basis of this, the Trial Court held that the Will was proved. This was rightly set aside in appeal. Section 68 of the Indian Evidence Act requires that at least one witness has to be called upon to speak of the attestation. Here, though admittedly three of the four witnesses are alive, none of them has given evidence. The evidence of the scribe will not be sufficient to prove the Will. If all the attesting witnesses had died, then the identification of the signature of one of them may have been acceptable. But on the facts of this case, we must confirm the finding that Ex.B-6 is not proved. 9. Next we will take up the two documents said to have been executed by Unnamalai Ammal. The plaintiffs are her daughters; defendants 1 and 2 are her sons; the beneficiaries under Ex.B-6 are her sons; her grandson D-3, son of D-1 is the settlee under Ex.B-4, and her granddaughter D-8 and daughter of D- 1 is the beneficiary under the Will Ex.B-5; D-2, the brother of D- 1, is D.W.1; and D-3 is D.W.2. I. Ex.B-5 is the Will. The Will is not registered. It is dated 20.2.1978. D.W.1 (D-2) is the scribe. His evidence in chief is to the following effect : “My mother executed a Will on 20.2.1978. I wrote it. During the time of execution of Exs.B-4 and 5, my mother put her thumb impression. Previously, she would sign. But due to old age, she could not sign. Dhanusu (D.W.3) and Govindasami (D.W.2) were the witnesses. My mother said that what has already been given to the plaintiffs is sufficient. The Will relates to Schedule-II properties, Items 7 to 10. The witnesses and I saw her putting the thumb impression. My mother saw the attestation done by the witnesses. After I wrote the Will, I read it out and she approved it as correct...”. In cross-examination, he has stated as follows : ”It is not correct to state that Ex.B-5 was brought about only because some properties were left out in Ex.B-4. I wrote the Will….. Since it was in the evening(maalai) when the Will was written, it was not registered. My mother lived for three months after the execution of the Will. It was executed in our house. She wanted to give to her granddaughter the properties left out of Ex.B-4. She gave the details of the properties. I wrote it. It is not correct to state that it is not her fingerprint or that she did not execute the Will.” This is DW-1's cross-examination regarding Ex.B-5. Except for the suggestions, there is nothing in the cross-examination to reject what he has said in his chief. Now we will see if his examination is in line with the evidence of D.Ws.2 and 3. In his chief-examination, D.W.2 states as follows : https://hcservices.ecourts.gov.in/hcservices/ ”Unnamalai is my grandmother. She executed a Will in 1978 in favour of Rajakumari, her granddaughter. This is Ex.B-5. Ratnamudaliar (D.W.1) is the scribe. Dhanusu (D.W.3) and I are the witnesses. At that point of time, Unnamlai was in a sound and disposing state of mind. She saw me attest the Will.“ In his cross-examination, he states thus : ”I am one of the witnesses of Ex.B-5. She died two months after Ex.B-5. She has affixed her thumb impression in that also. I do not know why it was not registered. It is not correct to state that it was executed only because properties were left out of Ex- B4…. My uncle wrote Ex-B5. The other witness is Dhanusu. He is not our henchman.” We are unable to see anything in his evidence, which discredits the evidence of D.W.1. In his chief-examination, D.W.3 states as follows : ”I know Ponnaiah and Unnamalai Ammal. Unnamalai executed a Will in favour of Rajakumari. This was written in the 2nd month of 1978. D-1 wrote the Will. D.W.2 and I are the witnesses. It was written at her place in Vanoor. It was Unnamalai who wanted the Will to be made. They read out the Will to me. It was written at 2.00 pm. Unnamalai approved of it. I saw when she made her thumb impression. She saw me attest the Will. It is not correct to state the Will was fabricated. She was in a sound and state of mind at that time.“ In his cross-examination, D.W.3 states : ”I do not know if Unnamalai Ammal could read and write. D-1 wrote Ex.B-5. He is Rajakumari’s uncle. I do not know why it was not registered. She was not continuously unwell. No draft was written for this. With the sale deed, Unnamalai gave the details… I had gone to her house to buy seedlings. At that time, D-2 wrote the details for the Will.” As far as the place of execution, all the three witnesses agree. D.W.2 has said that D.W.1 is the scribe. D.W.3 says that D-1 is the scribe in two places. But D.W.1 is actually D-2. But this is not a fatal error, because he says that the scribe is Rajakumari’s uncle. So he knows who exactly the scribe of Ex.B-5 is. As regards the attesting witnesses, both of them speak of the attestation. D.W.1 and 3 say that the Will was read out and Unnamalai approved of it. All of them say that she was in a sound state of mind. So in all crucial aspects, the witnesses speak identically. It is, no doubt, true that D-2 was very much present and had in fact been the scribe. But he is not the beneficiary. It is his niece Rajakumari who gets all the properties. 10. We will compare the evidence of all the three witnesses as follows to see if there are any contradictions: https://hcservices.ecourts.gov.in/hcservices/ Date of Execution D.W.1 Chief 20-02-1978(in favour of granddaughter) Cross -- D.W.2 Chief In 1978 Cross -- D.W.3 Chief 2nd month of 1978 Cross -- Identity of Scribe D.W.1 Chief -- Cross Accepts that he himself is the scribe D.W.2 Chief D.W.1 Cross -- D.W.3 Chief D1(Though this is wrong it is evident that D.W.3 knows who the scribe is because it is Rajakumari's uncle) Cross -- Manner of Execution D.W.1 Chief Thumb impression Cross -- D.W.2 Chief Cross Thumb impression D.W.3 Chief Thumb impression Cross -- Attestation D.W.1 Chief D.Ws.2 and 3 are the Attestors Cross -- D.W.2 Chief "D.W.3 & I" Cross -- D.W.3 Chief "I & D.W." Cross -- Place of Execution D.W.1 Chief "Our house" Cross -- D.W.2 Chief -- Cross -- https://hcservices.ecourts.gov.in/hcservices/ Date of Execution D.W.3 Chief "At Unnamalai Ammal's place in Vanur" Cross Gone to Unnamalai Ammal house to get seedlings and at that time D2 wrote the details for the Will Subject of Ex-B4 D.W.1 Chief Schedule II Items7 to 10 Cross Properties left out of Ex-B4 D.W.2 Chief -- Cross Not correct to state that it was executed because the properties were left out of Ex-B4 D.W.3 Chief Cross -- Mental Condition of Testatrix D.W.1 Chief Sound and disposing state of mind Cross -- D.W.2 Chief Sound and disposing state of mind Cross -- D.W.3 Chief Sound and disposing state of mind Cross -- Reason for Non-registration D.W.1 Chief The Will was written in the evening Cross -- D.W.2 Chief Do not know the reason as to why it was not registered Cross -- https://hcservices.ecourts.gov.in/hcservices/ Date of Execution D.W.3 Chief Execution of Will – 2:00pm. Cross Do not know the reason as to why it was not registered It is seen that all the three witnesses support each other. 11. The propounder must prove that the Will was not executed under any suspicious circumstances or that there was any element to vitiate the Will like fraud or coercion, etc. In the cross examination, there is not even a suggestion to this effect. The only question asked is, whether this was not brought about to include those properties which were left out of Ex.B-4. What more can be proved regarding the due execution and attestation of Ex-B5 than what has been done. The witnesses say that the properties subject matter of Ex-B5 are not the properties under Ex-B4. But at the same time D.W.1 says Ex-B5 was not brought about only so that the properties that had not been covered by Ex-B4 can be roped in. As regards the identity of the properties there is no contradiction in the evidence of the witnesses. 12. D.W.3 is a third party, in the sense he is not related to the defendants. Of course, there is a suggestion that he is their henchman, which is denied. Even if he were related, if his evidence is believable, we cannot reject him. His presence at that time is explained very naturally in his cross- examination when he says that he had gone there to get seedlings. It is true that the daughters have been disinherited, but a Will is executed only when the natural mode of devolution is intended to be deviated from. A reason is found in the document itself for such a decision, and that is, they have been already well provided. When the witnesses have spoken about each aspect of the Will and explained the execution of the Will, the conscious approval of the recitals by the testatrix and the attestation, we cannot reject it merely because we suspect something is amiss. II. Ex.B-4 : This is with regard to Suit Schedule-II properties Items 1 to 6. The settlement deed was in favour of D-3 (D.W.2). Chief examination of D.W.1 : “My mother executed a settlement deed in favour of D-3 in respect of Suit Schedule-II properties Items 1 to 6. Rajagopal is the scribe. Kandaswami Mudaliar and I signed as witnesses. It was written in Vanoor in our house. The Sub-Registrar came to our house for registration. It was written as per the directions of Unnamalai Ammal. The scribe Rajagopal is dead. Kandaswami is close to 2nd plaintiff. The plaintiffs were aware of the execution of the Will and settlement deed. After my father died on the day https://hcservices.ecourts.gov.in/hcservices/ of the milk ceremony, we informed everyone about the Will.” Cross-examination of D.W.1 : "My mother knew to sign. In Ex-B4, she has affixed her thumb impression. Because her eye-sight was poor, she has done so. It is not correct to state that one year prior to her death she was unwell and in coma. If she had signed she would overwrite the letters and that is why she herself said that she will affix her thumb impression. On no occasion and in no document had my mother put her signature after the execution of Ex-B4. I have signed in Ex-B4 as a witness, the other witness Kandasamy is not a close relative. He is related like an uncle. Ex-B4 was written in our house. I, first defendant and our parents all lived in the same house, but there was separate mess. It is not correct to state that I and DW.1 had the same residence or that we did not have separate mess and that