IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 23.10.2008 CORAM: THE HONOURABLE MR. JUSTICE K.KANNAN A.S.No.518 of 1995 1. P.Ruthrakumar 2. P.Sathiakumar 3. P.Rani Gandhimathi 4. P.Mangayarkarasi ... Appellants/Plaintiffs Vs. 1. M.Meganathan 2. N.Jayachandran 3. N.Chandrasekar 4. N.Purushothaman 5. N.Madhavaraj 6. T.Abimannan 7. T.Munuswamy 8. T.Mohan ... Respondents/Defendants Appeal filed under Section 96 of C.P.C. against the judgment and decree dated 14.5.1993 passed in O.S.No.125 of 1990 on the file of the learned Sub Judge, Thiruvallore, Chengai MGR District. For appellants : Mr.H.Nazurudeen For Respondents : No appearance for R1 to 4 Mr.M.R.Khapali for R5 to 8 JUDGMENT The suit for partition in respect of the estate of one Narayanasamy filed before the court below resulted in dismissal accepting the contention of the fifth respondent that the said Narayanasamy did not die intestate and that he executed a Will bequeathing the properties in his name on 16.8.1990. While so doing, it found that the scribe who was a lawyer had been examined as D.W.3 and one of the witnesses to the Will was daughter of the testator, who has been been examined as D.W.2 had given cogent evidence touching upon the genuineness of the Will. https://hcservices.ecourts.gov.in/hcservices/ 2. The trial Court itself undertook the task of comparison of signatures in the Will and an admitted document, where the plaintiff's mother had executed a mortgage deed under Ex.A.10 dated 29.10.1969, in which the deceased Narayanasamy had figured as a witness and found the signatures seemed genuine. The suit was accordingly dismissed. 3. The learned counsel for the appellants assails the findings of the Court below on the ground that there was particularly no reason for disinheriting the plaintiffs, who were the children of the pre-deceased son of Narayanasamy. Comparison of the signature undertaken by the Court was not proper and the case must have been decided on the strength of evidence. He pointed out particularly to the evidence of D.W.3, who in the cross-examination had stated that at the time when the Will was written, Naryayanasamy had breathing trouble. It was a matter of fact that Narayanasamy had died four days after the alleged execution of the Will and that was a point to the fact that Narayanasamy was very ill and bequest could not have been made in a fit state of mind. 4. The admitted case is that the suit property is Narayanasamy's own property, which is an extent of 65 Cents in Survey No.35.3. Narayanasamy was a Teacher and he had 6 sons and two daughters. The first son is Padmanabhan and other sons are defendants 1 to 5. The first son predecessed his father and the plaintiffs are his children. 5. The learned counsel for appellants strenuously contends that Narayanasmy could not have thought of disinheriting the plaintiffs, who had lost their father during their infancy and the plaintiffs would have been definitely provided for, if he had actually written a Will. 6. The case has to be tested on the evidence relating to the execution and attestation of the Will and further examined whether the disposition is a natural one. P.W.2 is the daughter of the testator and she has spoken about the mental capacity and the valid execution of the Will. P.W.3 is the advocate, who has drawn up the Will and has also given cogently the details about the manner of disposition that Narayanasamy wanted and how they got translated through the instrument of the Will. As regards the choice of disposition, a Will itself is made only to deflect from the normal line of succession and a Will cannot be found to be untrue by the only fact all the heirs have not been provided for. The Will itself provides a clue for such choice of disposition by Narayanasamy by a reference to the fact that he had not made any provision for the only son, namely the 5th respondent earlier and therefore, he was making the bequest only in his favour. He has made reference to the other sons also, but he has stated that he https://hcservices.ecourts.gov.in/hcservices/ has provided for them earlier otherwise than through the Will. None of the sons or daughters has disputed the Will. Indeed, one of the daughters has even figured as a witness in the Will. 7. The learned counsel for the respondents brings to my attention that the plaintiffs themselves have admitted in the evidence through P.W.1 to the fact that Narayanasamy was living only with the 5th respondent and he was being taken care of only by him. There is also further evidence to the fact that adjoining the said properties, there were other properties in which the plaintiffs' mother had interest and the attempt by the respondents was to show that the plaintiffs have been well provided for even during the lifetime of Narayanasamy. The description in the suit reflects that the property of the plaintiff's mother Devakumari was on east of the suit property. 8. I find nothing suspicious about the disposition made by Narayanasamy. The reasoning of the trial Court is proper. I rest my findings only on the evidence available without undertaking the task of comparison of signature in Ex.A.10 and B.3, which procedure, the learned counsel for the appellants finds fault with. The comparison of signatures by the trial Court under section 76 of the Indian Evidence Act cannot supplant the requirements of proof through the witnesses touching upon execution and attestation. The comparisons are undertaken only as a measure of corroboration after appraisal of evidence of the witnesses, if there is some doubt in the mind of the Court. 9. Having regard to the definite conclusion which we can arrive through the evidence of the witnesses that are sufficient to uphold the genuineess of the Will, I affirm the decision of the Court below and dismiss the appeal. However, the parties are close relations and hence, there shall be no direction as to costs. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar ajr To The Subordinate Judge, Thiruvallore. https://hcservices.ecourts.gov.in/hcservices/ Copy to The Record Keeper, V.R. Section, High Court, Madras. + 1 c.c. to Mr. H. Nazirudeen, Advocate. S.R.No.59595. + 1 c.c. to Mr. M.V. Krishnan, Advocate. S.R.No.59155. Judgment in A.S.No.518 of 1995 SSN (CO) GSK 11.11.2008. https://hcservices.ecourts.gov.in/hcservices/