IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 30 -06-2011 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN S.A.No.568 of 1997 1.Muniammal @ Chinnammal 2.Jayaraman 3.Minor Uma 4.Minor Kumaravel 5.Minor Dhanabagiyam 6.Minor Jayaseelan 7.Minor Govindan 8.Minor Varalakshmi [Minors represented by their mother and natural Guardian the 1st appellant] : Appellants 1 to 8/Defendants 1,2,6 to 11 vs. Rajammal (died) 1.Vasantha :1st respondent/Plaintiff 2.Chinnadurai :2nd respondent/4th defendant 3.Mikkaniammal :3rd respondent/5th defendant Prayer: This second appeal is filed under section 100 of the Civil Procedure Code, against the judgment and decree of the Subordinate Judge, Thiruppattur in A.S.No.16 of 1993 and dated 1st October 1996 in reversing the judgment and decree of the court District Munsif, Thiruppattur in O.S.No.1225 of 1981 dated 30.06.1993. For Appellants : Mr.V.Raghavachari For Respondents : Mrs.T.Ananthi https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT The defendants 1, 2, 6 to 11 are the appellants. 2.The plaintiff/1st respondent filed a suit for declaration and recovery of possession of the suit properties. 3.The case of the plaintiff/1st respondent was that the suit properties originally belonged to her father Manicka Goundan and he had three wives and the plaintiff/1st respondent was the daughter through his 2nd wife Chinnammal. The 1st wife was Muniyammal and through her, he had a daughter by name Baggiyammal and through the 3rd wife, she had 7 sons and all of them died earlier and she settled one item of the property on the 3rd wife towards her maintenance and after her life time, that property shall revert-back to him and his legal heirs. The 1st defendant/1st appellant was not the legally wedded wife of Manicka Goundan and she was kept as a concubine by Manicka Goundan and the 1st defendant/1st appellant was married to one Ellappan @ Kookalan and through him, she had given birth to 3rd defendant and one Shanmugam and through Manicka Goundan, the 1st defendant/1st appellant gave birth to one Jayaraman, the 2nd appellant herein and Subramanian, who died later and the 2nd defendant/2nd appellant and Subramanian were not the legitimate children of Manicka Goundan, as Manicka Goundan never married Muniyammal @ Chinnammal, the 1st appellant/1st defendant and she was only kept as a concubine and Manicka Goundan was not keeping good health and he was not in sound disposing state of mind for 5 years prior to his death and the defendants 1 to 3 taking advantage of his ill-heath and unsoundness of mind, created Wills and claimed right over the properties and the claim of the 1st defendant/1st appellant that she is the legally wedded wife of Manicka Goundan and she married Manicka Goundan, after the death of her 1st husband was also false and the plaintiff/1st respondent was the legal-heir of Manicka Goundan through his 2nd wife and therefore, she filed a suit for declaration and injunction. 4.The appellants contested the suit stating that the 1st appellant was not exclusively kept as concubine of Manicka Goundan and she was the legally wedded wife of Manicka Goundan and she married Manicka Goundan 40 years earlier after the death of her 1st husband and Manicka Goundan had three wives and the 1st respondent's mother was the 1st wife and Pappathiammal was the 2nd wife and the 1st appellant was his 3rd wife and through the 1st appellant, the 2nd appellant and one Subramanian were born and they are the legitimate children of Manicka Goundan and through his 1st https://hcservices.ecourts.gov.in/hcservices/ wife, the plaintiff alone was born and there was no son by name Gavurappa as alleged by the 1st respondent and in respect of 75 cents in S.No.594/1, which is a part of 3rd item of the suit property, a settlement deed was executed by Manicka Goundan on 26.11.1955 in favour of his 2nd wife Papathi Ammal to be enjoyed by her till her life time and thereafter to be enjoyed by Manicka Goundan and his legal heirs and after the death of Papathi Ammal, the property reverted back to Manicka Goundan and Manicka Goundan enjoyed the property along with the 1st appellant and he was keeping good health and he was in a sound disposing state of mind and during his life time, he executed three Wills, one on 19.08.1968 in respect of items 1 and 4 wherein the 1st respondent was mentioned as his wife and items 1 and 4 were given to the 2nd appellant and another son Subramanian and that Will was a registered one and thereafter, on 12.07.1976 Manicka Goundan executed another Will, which was also registered and under that Will he bequeathed in favour of his son Subramanian 1.27 cents in respect of 3rd item of the property and other properties and after the death of his son Subramanian, immediately thereafter Manicka Goundan while in a sound disposing state of mind executed a Will, dated 14.12.1979 in favour of the 2nd appellant and that Will came into effect, after the death of Manicka Goundan and as per the Will, the suit items 1 to 3 were bequeathed to the 2nd appellant and the 2nd appellant is enjoying the property as his own property and on 14.12.1979 itself Manicka Goundan executed a mortgage in respect of 2nd and 3rd items and the 4th item of the property belonged to the 1st appellant and she settled that property in favour of the 3rd defendant and his brother Shanmugam and Manicka Goundan had no right over the said property and the 1st defendant married Manicka Goundan, after the death of her 1st husband, according to custom of her community and as the 2nd defendant became the owner of the property as per Will, the plaintiff is not entitled to the relief prayed for. 5.The 3rd defendant claimed right over the 4th item of suit property stating that the property was the property of the 1st appellant/1st defendant and the 1st appellant was given in marriage to Ellappan @ Kookalan and through him, the 3rd defendant and Shanmguam were born and the 1st husband Ellappan @ Kookalan died and thereafter, the 1st defendant married Manicka Goundan and lived as wife of Manicka Goundan and she gave birth to the 2nd defendant and Subramanian through Manicka Goundan and as the owner of the 4th item of the property, the 1st defendant executed a settlement deed in favour of the 3rd defendant and his brother, Shanmugan and Shanmugam also executed a sale deed in respect of half share in the 4th item of the property and the 3rd defendant has become the absolute owner of the property and therefore, the plaintiff has no right over the 4th item of the suit property. https://hcservices.ecourts.gov.in/hcservices/ 6.The 4th defendant supported the case of the defendants 1 to 3 and further contended that on 14.12.1979, Manicka Goundan mortgaged items 2 and 3 of the suit property in his favour and after the death of Manicka Goundan, the 2nd defendant was enjoying the suit properties as a owner and the 2nd defendant in his capacity as owner agreed to sell items 2 and 3 in his favour by entering into an agreement of sale, dated 31/01/1981 and the 4th defendant is prepared to get the sale deed executed in pursuant to the agreement of sale. As the suit was pending, the 2nd defendant agreed to execute the sale after the disposal of the suit and the plaintiff has no right. 7.The defendant 5 to 11 are the legal-heirs of the 3rd defendant and they also supported the case of the other defendants. 8.The trial Court held that the suit properties are the self- acquired properties of Manicka Goundan and the 1st defendant/1st appellant is the legally wedded wife of Manicka Goundan and she married Manicka Goundan, after the death of her 1st husband and the defendants 2 and Subramanian were born through her to Manicka Goundan and Manicka Goundan executed a Will, dated 14.12.1979 when he was in a sound disposing state of mind bequeathing the items 1 to 3 in favour of the 2nd defendant/2nd appellant and the Will was proved through DW2 and DW3 and therefore, the 2nd defendant/2nd appellant became the owner of the items 1 to 3 and the 4th item of the property was settled by the 1st defendant/1st appellant in favour of the 3rd defendant and his brother, Muthu Goundan and therefore, they became the owners of the suit properties and therefore, the plaintiff is not entitled to any declaration and recovery of possession and dismissed the suit. 9.The Lower Appellate Court disbelieved the Will, dated 14.12.1979 and held that the Will was not proved through witnesses and the 1st defendant was not the legally wedded wife of Manicka Goundan and the suit properties were the absolute properties of Manicka Goundan and the 1st defendant has no right to execute a Will in respect of 4th item of the property in favour of the 3rd defendant and his brother and the 2nd appellant failed to prove that Will was executed by Manicka Goundan, while he was in a sound disposing state of mind and set aside the judgment and decree of the trial Court and allowed the appeal. Hence, this second appeal. 10.The following substantial questions of law were framed at the time of admission:- https://hcservices.ecourts.gov.in/hcservices/ 01.Whether the Lower Appellate Court is right in rejecting the will under Ex.B9, especially when the same is a registered document and the same having being presented by Manicka Gounder in the office of the Sub- Registrar? 02.Whether the Lower Appellate Court should not have held that examination of one attesting witness to the will is sufficient and in the present case, the appellants have examined the attestor and the scribe and both of them have deposed as regards the due execution and under such circumstances, whether the lower appellate court ought not to have confirmed the order of the trial court? 11.Mr.V.Ragavachari, the learned counsel appearing for the appellants submitted that the appellants claimed title to the suit property under the Will, dated 14.12.1979 and the Will was proved through DW2 and DW3. DW2 was a scribe and DW3 was one of the attesting witnesses and the Will was registered one and therefore, the trial Court has rightly held by applying the law as laid down by the Hon'ble Supreme Court that the 2nd defendant /2nd appellant proved the Will by examining one of the attesting witnesses and under the Will, items 1 to 3 were bequeathed in favour of the 2nd respondent and therefore, the 2nd appellant became the absolute owner of the suit property. 12.He further submitted that the conduct of Manicka Goundan would also make it clear that the Will was executed by him, while he was in a sound disposing state of mind. He further submitted that prior to the Will, dated 14.12.1979, Manicka Goundan had already executed a registered Will on 19.08.1968 in respect of Items 1 and 4 in favour of 2nd defendant and his brother Subramanian, wherein the 1st defendant/1st appellant was described as his wife and the 2nd defendant and his brother were described as sons born to him through the 1st appellant/1st defendant and he also executed another registered Will, dated 12.07.1976 in respect of item 3 and other properties to Subramanian, the son born through the 1st defendant and lastly, he executed a registered Will, dated 14.12.1979 and bequeathed the items 1 to 3 in favour of the 2nd defendant/2nd appellant and the fact that Manicka Goundan already executed two registered Wills would also prove that the Will, dated 14.12.1979 is a genuine document and that was also proved through DW2 and DW3 and there are no suspicious circumstances, while executing the Will. As Manicka Goundan was admittedly living with the 1st defendant and her children born through him Mankica Goundan and thus disinheriting the plaintiff cannot be a ground to disbelieve the Will and that will not be termed as suspicious https://hcservices.ecourts.gov.in/hcservices/ circumstances and having regard to the fact that Manicka Goundan was taken care of at his old age by the 1st defendant and her son 2nd defendant, he executed a Will in favour of the 2nd defendant and therefore, the Will was a genuine Will and the 2nd defendant got title to the suit properties to the Will. 13.He further submitted that in respect of 4th item, the property belonged to the 1st defendant and she was granted patta in her name and she settled the property in favour of her sons born through her 1st husband and therefore, the 3rd defendant became the absolute owner of 4th item of the suit property and the Will, dated 14.12.1979 was a genuine one and it was also probablised by the execution of the mortgage deed in respect of 2 and 3 items on the same day by Manicka Goundan in favour of the 4th defendant and therefore, having regard to the fact that the Will, dated 14.12.1979 was a registered one and was duly proved by examining the attesting witness, the Lower Appellate Court erred in disbelieving the Will and erred in holding that the 1st defendant was the legally wedded wife Manicka Goundan. 14.He also relied upon the following judgments in support of his contention:- 01.AIR 1995 SC 1684, in the case of Rabindra Nath Mukherjee and another vs. Panchanan Banerjee (dead) by L.R.s and others. 02.(2001)9 SCC 726, in the case of E.Madhavi Pallikkaramma & another vs. K.V.Prabhakaran Nair and others. 03.AIR 2003 SC 3109 = 2003(8)SCC 537, in the case of Ramabai Padmarkar Patil (D) through L.Rs. and others vs. Rukminibai Vishnu Vekhande and others. 04.(2004)11 SCC 320 in the case of P.S.Sairam and another vs. P.S.Rama Rao Pissey and others. 05.2003(4)CTC 330 = (2003)3 MLJ 492, in the case of Saroja and others vs. Chennimalai, Sivanmalai, Ramasamy and Marayammal vs. Ayyasami Pillai and other 06.(2000)6 SCC 151, in the case of Palanivelayutham Pillai and others vs. Ramachandran and others. https://hcservices.ecourts.gov.in/hcservices/ 07.(2007)11 SCC 621 in the case of Savithri and others vs. Karthyayani Amma and others. 08.(2004)1 MLJ 188 in the case of Dr.Shantha vs. Sharada. and contended that there were no suspicious circumstances in the execution of the Will and when the scribe has given evidence that he was present when the Will was executed by the executant and attesting witnesses signed in his presence, he can be considered as an attesting witness and one another attesting witness, DW3, was examined and therefore, the Will was legally proved through examination of DW2 and Dw3. 15.On the other hand, the learned counsel appearing for the respondents submitted that the trial Court without properly appreciating the law regarding the proof of Will and without appreciating the evidence of DW3, who claimed to be the attesting witness, erred in holding that the Will was proved through DW2 and DW3 and DW2 was only a scribe and he cannot become an attesting witness and the judgments relied upon by the learned counsel appearing for the appellants would also make it clear that unless a scribe also described himself as a witness, he cannot become the attesting witness to a Will and the registration of a Will, will not amount to due execution of the Will and as per the provision of section 63 of the Indian Succession Act the Will has to be proved and DW3, the attesting witness has not spoken about the valid attestation as per section 63 of the Indian Succession Act and having regard to the fact that Manicka Goundan used to put his signature in the earlier documents and in the disputed Will, he has only affixed his thumb impression and that would also prove that he was not in a sound disposing state of mind and according to the evidence of DW2 and DW3 and the 2nd defendant, who claims to be legatee under the Will, the legatee took active part in the execution of the Will and considering all these aspects, the Lower Appellate Court has rightly held that the Will was not proved and it does not call for any interference. 16.He further submitted that the 1st defendant admittedly married one Ellappan @ Kookalan and that was also admitted by her in Ex.A3, Settlement Deed, dated 24.04.1975 and when the 1st defendant was admittedly married to one Ellappan @ Kookalan in the absence of any proof that after the death of her 1st husband, she married Manicka Goundan, she cannot claim the status of the legally wedded wife of Manicka Goundan and the 1st defendant did not enter the box to speak about her marriage and no witness in that locality was examined to speak about the marriage between the 1st defendant and Manicka Goundan and except the statement of https://hcservices.ecourts.gov.in/hcservices/ Manicka Goundan in the Will, dated 19.08.1968, there is no other evidence to show that the 1st defendant was married to Manicka Goundan after the death of her 1st husband and in the absence of any valid marriage between Manicka Goundan and 1st defendant, the 2nd defendant cannot claim to be the legitimate son of Manicka Goundan and in the absence of any Will, the defendants cannot claim any right over the property and the trial Court having held that all the suit properties were the self-acquired properties of Manicka Goundan, erred in holding that settlement deed executed by the 1st defendant in favour of the 4th defendant was valid and the 1st defendant did not have any title and hence, the 4th defendant will not get any title and therefore, the Lower Appellate Court has rightly allowed the appeal and decreed the suit. 17.Heard both sides. 18.In this appeal, we are concerned only with the validity of Ex.B9 Will, dated 14.12.1979. The substantial questions of law were framed only in respect of the said Will. 19.Further, as rightly submitted by the learned counsel appearing for the respondents that the 1st defendant was the wife of Ellappan @ Kookalan and through him, she had two sons, viz., the 3rd defendant and another person and though the defendants contended that after the death of Ellappan @ Kookalan, the 1st defendant married Manicka Goundan, there was no evidence worthy- name to accept the said contention. The 1st defendant was a competent person to speak about the same, but she did not enter into the box to give evidence about her marriage. 20.Further, none of the residents in that locality were examined to prove that the 1st defendant married Manicka Goundan, after the death of her 1st husband and Manicka Goundan and the 1st defendant were living together as husband and wife and they were recognized as husband and wife in that locality and therefore, in the absence of such evidence, it cannot be held that the 1st defendant was the legally wedded wife of Manicka Goundan. 21.Of course, it is not disputed that the 1st defendant was living with Manicka Goundan and it is the contention of the 1st respondent/plaintiff that the 1st appellant was the concubine of Manicka Goundan and through him, the 2nd defendant and Subramanian were born and therefore, in the absence of any proof fo valid marriage between Manicka Goundan and the 1st defendant, the 2nd defendant cannot be termed as the legitimate son of Manicka Goundan. Therefore, the 2nd defendant can claim title only under the Will, dated 14.12.1979 and if the Will is not upheld, the 2nd defendant will not get any right over the suit property and the https://hcservices.ecourts.gov.in/hcservices/ plaintiff being the legitimate daughter of Manicka Goundan is entitled to the declaration and recovery of possession. 22.Therefore, we will have to see whether the Will, dated 14.12.1972 marked as Ex.B9 was validly proved by the appellants. 23.In this case, in addition to Ex.A9, the appellants also relied upon two other Wills viz, Ex.B10, dated 19.08.1968 and Ex.B11, dated 12.07.1976. 24.It is admitted that all the three Wills were registered documents and though Exs.B10 and B11, the two Wills were marked, it cannot be stated that the Wills have been proved as no attesting witnesses were examined to prove the due execution of those two Wills Exs.B10 and B11. 25.Further, the 2nd defendant/2nd appellant also did not claim any right under the Wills Exs.B10 and B11 and he claimed right only under Ex.B9. According to me, the 2nd defendant also cannot claim any right under Exs.B10 & B11, as there was no proof of due execution of those two Wills in the manner known to law and can succeed only by proving the Will Ex.B9, dated 14.02.1979. 26.In the judgment reported in 2006(14) Scale 186 in the case of Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao & others, the Hon'ble Supreme Court has held as follows:- ..The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. the propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood in nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any, In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. ...There are several circumstances which would have been held to be described by this Court as suspicious circumstances: (i)When a doubt is created in regard to the condition of mind of the testator despite his https://hcservices.ecourts.gov.in/hcservices/ signature on the Will; (ii)When the deposition appears to be unnatural or wholly unfair in the light of the relevant circumstances; (iii)Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit. Therefore, the onus is heavily on the 2nd defendant to prove that the Will has been validly executed as a genuine document. 27.The case of the 1st respondent/plaintiff was that the said Will was not executed, while Manicka Goundan was in a sound disposing state of mind and he was not having good health for the last five years prior to his death and was not knowing anything and taking advantage of his position, the Will was created by the defendants with the help of DW2 and Dw3. She further contended that Manicka Goundan used to sign his name and that was also evident from the earlier documents and in the disputed document Ex.B9, his signature was not found and only his thumb impression was found and there is no explanation for the same and no reason was stated in the Will Ex.B9, for dis-inheriting the plaintiff, who was the only daughter of Manicka Goundan and these would prove that Manicka Goundan was not in a sound disposing state of mind and the Will was executed in the suspicious circumstances. 28.The law relating to suspicious circumstance has been dealt with in the judgment reported in 2006(14) Scale 186 in the case of Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao & others, Scale 186, which is as follows:- “...There are several circumstances which would have been held to be described by this Court as suspicious circumstances: (i)When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will; (ii)When the deposition appears to be unnatural or wholly unfair in the light of the relevant circumstances; (iii)Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit.: 29.Further, in the judgment reported in AIR 1995 SC 1684, in the case of Rabindra Nath Mukherjee and another vs. Panchanan Banerjee (dead) Ly L.R.s and others, it was held as follows:- ..3.A perusal of the two impugned judgments shows that the following were regarded as suspicious circumstances: https://hcservices.ecourts.gov.in/hcservices/ (1)Deprivation of the natural