IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 24..07..2008 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.723 of 1995 Thayammal ... Appellant/Plaintiff vs. 1.Ponnusamy(set exparte) 2.Rasappan .. Respondents/Defendants Appeal against the judgment and decree dated 31.1.1995 made in O.S.No.265 of 1993 of the Principle Subordinate Judge, Erode. For appellant :: Mr.M.M.Sundaresh For second respondent :: Mr.K.Goviganesan JUDGMENT The unsuccessful plaintiff filed this appeal as against the judgement and decree dated 31.1.1995 passed by the learned Principle Subordinate Judge, Erode, in O.S.No.265 of 1993, which was filed by the plaintiff as against the defendants for declaration of her title to the suit property and for delivery of possession. 2. Broadly but briefly, narratively but precisely, the case of the plaintiff as stood exposited from the plaint could be portrayed thus: (a) One Chinnamoopan had a son by name Ponnusamy (D1) and a daughter, namely, Thangammal. A division of status took place between Chinnamooppan and D1 herein. Thereafter, Chinnamooppan purchased a vacant site measuring 12 cents as per sale Deed dated 21.5.1965 from Vijayapurimooppan and others, from out of his own funds and raised two anganam thatched houses and one tiled anganam house. (b) As per Settlement Deed dated 10.12.1973, the said Chinnamooppan settled the suit property in favour of his daughter Thangammal, wife of Koolamooppan, whereupon, she started enjoying it as the absolute owner. She also built two tiled houses in the suit property and enjoyed the same by leasing them out to various persons https://hcservices.ecourts.gov.in/hcservices/ and subsequently it was leased out to D2. D1 was a bachelor. The said Thangammal executed a registered 'Will' dated 17.10.1989 in favour of Thyammal, who happened to be the daughter-in-law of the plaintiff's husband's brother-Chinnakuttimooppan. (c) Thangammal died on 8.2.1990, whereupon her 'Will" came into force. D2 as a tenant of the suit property, continued to pay the rents to the plaintiff. He wanted to purchase the suit property from the plaintiff, but the negotiation did not fructify. However, D2 somehow or other managed to get a registered sale Deed dated 16.9.1992 from D1 relating to the suit property. Such a sale is not binding on the plaintiff. Hence, the suit. 3. Per contra, gain saying and challenging the allegations and averments in the plaint, D2 filed the written statement with various averments. The pith and marrow of them would run thus:- Chinnamooppan did not purchase, as per the sale Deed dated 21.5.1965, an extent of 12 cents of vacant land from out of his own funds and he did not raise houses thereon from his own source as contended in the plaint. However, Thangammal constructed two tiled houses and she had been leasing out the same to various persons and later it was leased out to D2. The 'Will' dated 17.10.1989 purported to have been executed by Thayammal in favour of the plaintiff, is false. The plaintiff is not related to Thangammal, who died interstate. D2 is a bona fide purchaser for valuable consideration of the suit property from D1. Mutation was effected in the Revenue records in the name of D2 and he has been paying tax for the suit property. Accordingly, he prayed for the dismissal of the suit. 4. The trial Court framed the relevant issues. During the trial, the plaintiff examined herself as PW1 apart from examining one Kannian as P.W.2 and Venkatachalam as P.W.3 and marked four documents, namely, Ex.P1 to P.4 on her side. On the defendants' side, the second defendant examined himself as DW1 and also exhibited three documents, namely, Ex.D1 to D3. D1 remained ex-parte before the trial Court. 5. Ultimately, the trial Court dismissed the suit. Being aggrieved by and dissatisfied with the judgement and decree of the trial Court in dismissing the suit, the plaintiff filed the present appeal on various grounds, the warp and woof of them would run thus:- The judgement and decree of the trial Court is against law and weight of evidence. The trial Court was wrong in rejecting the evidence, which proved the due execution of the 'Will'. The trial Court should not have disbelieved the evidence of P.W.3 merely based on certain defects in his deposition. The approach of the trial https://hcservices.ecourts.gov.in/hcservices/ Court in analysing the evidence relating to the 'Will' was not correct. The evidence on record evinced and established that the defendants, after knowing the 'Will' executed by Thangammal in favour of Thayammal, purchased the suit property, but the trial Court simply ignored such an evidence. The evidence of P.W.2 was beyond doubt and based on that the trial Court should have upheld the validity of the 'Will'. Accordingly, the plaintiff prayed for setting aside the judgement and decree of the trial Court and for decreeing the original suit in toto. 6. The points for consideration are as under: (i) Whether the plaintiff, being the propounder of the 'Will'-Ex.A3 dated 17.10.1989, proved the due execution by Thangammal? (ii) Whether there is any infirmity in the judgement and decree of the trial Court? 7. The parties are referred to hereunder according to their litigative status before the trial Court. Point No.(i): The learned counsel for the plaintiff would advance his argument to the effect that even though clinching evidence was available on record in establishing the genuineness of the 'Will'-Ex.A3, nonetheless the trial Court failed to uphold the validity of the 'Will'. Whereas, the learned counsel for D2 would contend that the 'Will' was not proved and in fact, P.W.3 was not at all the scribe of the Will-Ex.A3, even then, he claimed to be the scribe and thereby exposed himself. 8. In this case, Ex.A3-the Will and the evidence adduced to prove Ex.A3 deserve deep scrutiny. P.W.3-Venkatachalam, who was examined on the side of the plaintiff, as though he happened to be the scribe, deposed before the trial Court candidly admitting that his document writer's licence number was not 1833 but it belongs to somebody else. No doubt during Chief- examination, he claimed the said licence number as his licence number. 9. A perusal of Ex.A3-the original 'Will' would demonstrate the fact that it was scribed by one other person having licence number No.B1833 and not by Venkatachalam-P.W.3. Even in the Will-Ex.A3, the signature of the scribe starts with the initial 'K', whereas P.W.3's initial is 'N'. It is therefore crystal clear that P.W.3 is not the scribe of the Will-Ex.A3. 10. In view of the aforesaid finding that P.W.3 did not scribe the Will, the core question arises as to whether the claim of the plaintiff, based on the Will, should be completely discarded. https://hcservices.ecourts.gov.in/hcservices/ 11. I am of the opinion that simply because a scribe was examined as a witness, who turned out to be not the original scribe, but a different person, the entire case of the plaintiff cannot be thrown away as false. The plaintiff could have taken care to see that the appropriate person, whose name is found in the Will as scribe, was examined before the trial Court. 12. No doubt it is common knowledge that some of the scribes used to have their own surrogates and assistants to write on their behalf, but the scribes' licence number would be used for registration purpose. The reality might be even that P.W.3 might have scribed the Will and in view of the fact that he does not have the licence, he might have borrowed the assistance of the licence holder for registration. No doubt all these things have not been found detailed and delineated during the trial on the side of the plaintiff. Hence, I am of the considered opinion that the evidence of P.W.3 should not be taken into consideration for assessing as to whether the Will is a genuine one or not. But one fact is clear that simply because there is discrepancies in the scribe's name and in the deposition of P.W.3, the Court cannot jump to the conclusion that P.W.3 is a false witness who committed perjury before the Court at the instance of the plaintiff. 13. Now the question arises as to whether Ex.A3 Will was proved in accordance with Section 63-C of the Indian Succession Act and Section 68 of the Indian Evidence Act. In this connection, I would like to refer to the following decision of the Honourable Apex Court reported in 2006(2)LW 658 SC [Pentakota Satyanarayana & others vs. Pentakota Seetharatnam & others]. An excerpt from it would run thus: "25. A perusal of Ex.B9 (in original) would show that the signatures of the Registering Officer and of the identifying witnesses affixed to the registration endorsement were, in our opinion, sufficient attestation within the meaning of the Act. The endorsement by the sub-registrar that the executant has acknowledged before him execution did also amount to attestation. In the original document the executants signature was taken by the sub-registrar. The signature and thumb impression of the identifying witnesses were also taken in the document. After all this, the sub-registrar signed the deed. Unlike other documents the Will speaks from the death of the testator and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his Will or not and this aspect naturally introduces an element of https://hcservices.ecourts.gov.in/hcservices/ solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and the testament of departed testator. 26. In the instant case, the propounders were called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document on his own freewill. In other words, the onus of the propounder can be taken to be discharged on proof of the essential facts indicated above. It was argued by learned counsel for the respondent that popounders themselves took a prominent part in the execution of the Will which will confer on them substantial benefits. In the instant case, propounders who were required to remove the said suspicion have let in clear and satisfactory evidence. In the instant case, there was unequivocal admission of the Will in the written statement filed by P.Srirammurthy. In his written statement, he has specifically averred that he had executed the Will and also described the appellants as his sons and Alla Kantamma as his wife as the admission was found in the pleadings. The case of the appellants cannot be thrown out. As already noticed, the first defendant has specifically pleaded that he had executed a Will in the year 1980 and such admissions cannot be easily brushed aside. However, the testator could not be examined as he was not alive at the time of trial. All the witnesses deposed that they had signed as identifying witnesses and that the testator was in sound disposition of mind. Thus, in our opinion, the appellants have discharged their burden and established that the Will in question was executed by Srirammurthy and Ex.B9 was his last will. It is true that registration of the Will does not dispense with the need of proving, execution and attestation of a document which is required by law to be proved in the manner as provided in Section 68 of the Evidence Act. The Registrar has made the following particulars on Ex.B9 which was admitted to registration, namely, the date, hour and place of presentation of document for registration, the signature of the person admitting the execution of the Will and the signature of the identifying witnesses. The document also contains the signatures of the attesting witnesses and the scribe. Such particulars are required to be endorsed by the Registrar along https://hcservices.ecourts.gov.in/hcservices/ with his signature and date of document. A presumption by a reference to Section 114 of the Evidence Act shall arise to the effect that particulars contained in the endorsement of registration were regularly and duly performed and are correctly recorded. In our opinion, the burden of proof to prove the Will has been duly and satisfactorily discharged by the appellants. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. In such circumstances, the onus shift to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same. 27. It is settled by a catena of decisions that any and every circumstance is not a suspicious circumstance. Even in a case where active participation and execution of the Will by the propounders/beneficiaries was there, it has been held that that by itself is not sufficient to create any doubt either about the testamentary capacity or the genuineness of the Will. It has been held that the mere presence of the beneficiary at the time of execution would not prove that the beneficiary had taken prominent part in the execution of the Will. This is the view taken by this Court in Sridevi & Ors vs. Jayaraja Shetty & Others, (2005) 2 SCC 784 = 2005- 2-L.W.89. In the said case, it has been held that the onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and the proof of signature of the testator as required by law not be sufficient to discharge the onus. In case, the person attesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same and that as to what suspicious circumstances which have to be judged in the facts and circumstances of each particular case. 28. Mr.Narsimha, learned counsel for the respondents submitted that the natural heirs were excluded and legally wedded wife was given a lesser share and, therefore, it has to be held to be a suspicious circumstance. We are unable to countenance https://hcservices.ecourts.gov.in/hcservices/ the said submission. The circumstances of depriving the natural heirs should not raise any suspicion because the whole idea behind the execution of the Will is to be interfered in the normal line of succession and so natural heirs would be debarred in every case of the Will. It may be that in some cases they are fully debarred and some cases partly. This is the view taken by this Court in Uma Devi Nambiar and Others vs. T.C.Sidhan (Dead) (2004) 2 SCC 321 = 2004-2-L.W.852. 14. Here virtually the defendant tried to make a mountain out of a molehill by trying to point out the contradictions relating to allied matters in respect of the execution of the Will. Here, it is obvious that the time gap is more than five years. Hence the ratiocination as set out in paragraph No.31 of the Hon'ble Apex Court's judgment can readily be relied on for rejecting the contention on the plaintiff's side, based on those contradictions in the evidence of the witnesses. The cited Apex Court's precedent further reads thus: "31. D.W.6 stated that D1 brought the draft Will and asked him to scribe the same. This is nowhere contradicted by D.W.5. D.W.5 does not say that D1 (testator) did not bring a draft Will. It is quite natural for the testator to have a first draft Will in the pocket when he goes to a document writer. D.W.5 was asked to attest. D.W.6 also speaks about the execution and attestation. The trial Court has made much about the draft Will aspect. This is hardly a suspicious circumstance. D.W.6 says that 4 male persons accompanied D1. This is hardly a suspicious circumstance. D.W.5 also states that there was another person whom he would not identify. The deposition was given in 1997 (i.e. 17 years after the registration of Will) and the courts below ought not to have made a mountain out of a molehill and on that basis reject a duly executed registered Will." 15. There are various other decisions infra relating to the quantum of proof required relating to proving of the Will, which are as under: (i) 2005(1) SCC 40 [Daulat Ram and other vs. Sodha and others] (ii)2005(1) SCC 280 [Meenakshiammal (Dead)through LRs. and others vs. Chandrasekaran and another] https://hcservices.ecourts.gov.in/hcservices/ (iii)2005(1) CTC 443 [Sridevi and others vs. Jayaraja Shetty and others] (iv) 2005(1) L.W.455 [Janaki Devi vs. R.Vasanthi and 6 others] (v)1989 (1) L.W.396 [Nagarajan and 3 others vs. Annammal] (vi)AIR 1982 SC 133 [Smt.Indu Bala Bose and others vs. Manindra Chandra Bose and another] (vii)AIR 1985 SC 500 [Satya Pal Gopal Das vs. Smt. Panchubala Dasi and others] (viii)AIR 1991 Bom. 148 [Asber Reuben Samson and others v. Eillah Solomon and others] (ix)2008(2) MLJ 119 [M.Anandan and others vs. A.Dakshinamoorthy] (x)2006(4) L.W.942 [Gurdev Kaur & others vs. Kaki & others] (xi)2008(1) MLJ 1337 SC [Savithri and others vs. Karthyayani Amma and others] (xii)2007(3) L.W.916 [1. J.Mathew (died) 2. J.Damien and 3 others vs. Leela Joseph] 16. Among the aforesaid decisions, one of the decisions reported in 2001(3)CTC 283 [Corra Vedachalam Chetty and another vs. G.Jankiraman) is on the point that the Court while analysing the Will is acting as a Court of conscience. An excerpt from the above said decision would run thus: "26. This need for caution, cannot be exploited by unscrupulous caveators who choose to cull out imaginary suspisions with a view to prevent the legatees under the Will from claiming the benefit thereunder and to render the last Will of the deceased wholly ineffective. In https://hcservices.ecourts.gov.in/hcservices/ this context, the conduct of the persons who raise the alleged ground for suspision is also to be looked at, to know as to how credible are the grounds for suspisions sought to be raised by such persons. In this case, the suspicion is sought to be raised by a person who is keenly interested in making the Will ineffective and whose conduct is far from one which would inspire confidence in truthfulness of his statements." 17. As such, the above precedent would also illustrate and exemplify that the Court should not attach undue importance to imaginary suspicions. All these aforesaid decisions are on the point that the Court should not at the time of analysing the validity of the Will proceed on the proposition that the Will is an invalid one. 18. A perusal of the above verdicts would clearly highlight that examination of even one attesting witness to the Will would be sufficient to prove the Will, provided he could speak about the due execution of the Will, and the attestation of the Will by himself and one of the witnesses along with him in the presence of the testator. 19. Keeping in view the dictum of the above said decision, I would like to analyse the evidence of P.W.2-Kanniah, Son of Thirumalaisamy, one of the attesting witnesses, who would candidly and categorically depose, without any embellishment, that he witnessed the testatrix, namely, Thangammal, signing the Will and one other witness, namely, Palanisamy attesting the Will along with P.W.2 himself in the presence of the testatrix. No doubt, P.W.2 would depose that the testatrix Thamgammal was taken in a car for the purpose of getting the Will registered and he would also state that the scribe himself came to Thangammal's house for scribing the Will earlier. However, P.W.3, would speak to the effect that it was Thangammal, who came to him for getting the Will scribed and that they all went in a bus for getting the Will registered. 20. My mind is redolent with the same set of decisions cited supra, which would highlight that due allowance should be given for lapse of memory on the part of the witnesses, who speak about the execution of the Will, in this case, Ex.A3-Will is dated 17.10.1989, whereas P.W.2 was examined before the Court on 18.1.1995 and P.W.3 was examined on 22.1.1995 so as to say more than five years after the emergence of the Will. I would like to highlight that if there is a doubt about the very execution of the Will by the testator, from the way in which the witnesses deposed, then the matter would be different. But on the other hand the contradictions relating to allied matters, such as who came first and who came next at the time of emergence of the Will and also about the mode of transport used https://hcservices.ecourts.gov.in/hcservices/ for going to the Registrar's office are not significant and if undue importance is given to such contradictions relating to narration of those allied facts, then it would amount to throwing the baby along with the bath water. At this juncture, the following maxim is extracted here under for ready reference: Omnia Presumuntur rite esse acta (A prima facie presumption of this regularity of the acts of public officials exists until the contrary appears). 21. It is a trite proposition of law that preponderance of probabilities would govern the adjudication in civil cases. Indubitably and incontrovertibly, Thangammal-the testatrix had no issues and as per the evidence available on record, it is clear that she was looked after by the plaintiff, the relative of her. In such a case, it is no wonder that Thangammal might, in all probabilities, have executed the Will in favour of Thayammal. D.W.1 in his deposition would candidly and categorically depose that Thangammal had no issues and he was paying rents to Thangammal during her life time. However, he would claim that after the death of Thangammal, he gave the rents to Ponnusamy-D1, for which, there is no evidence. It is therefore clear that D2 entered the suit property recognising Thangammal as the owner and paid rents also to her. 22. Thangammal, being the owner of the suit property, by virtue of Ex.P.2-Settlement deed, dated 10.12.1973, executed by her father in her favour, enjoyed it by leasing it out to various persons, including D2 and executed Ex.A3-Will. Accordingly, this point is decided to the effect that the plaintiff proved that Thangammal executed Ex.A3-Will in favour of the plaintiff, voluntarily. 23. The learned counsel for D2 would develop his argument to the effect that D2 is a bona fide purchaser for valuable consideration without notice of the Will. He also contended that the plaintiff's husband Palanisamy was one of the attesting witnesses and in such a case, the Will has to be looked askance at; even in the encumbrance certificate, which he obtained, there was no reference to the Will. The Will was executed on 17.10.1989 and it is a registered Will. Thangammal died on 8.1.1990. Whereas, Ex.A4- Sale Deed dated 16.9.1992 executed by D1 in favour of D2 relating to the suit property emerged long after the Will and the death of the testatrix Thangammal. It is not as though D2 was a stranger to Thangammal, as he admittedly the lessee under her in the suit property. Even during the life time of Thangammal, he was paying rents to her and it would be a farfetched thinking that D2 might not have known about the Will. In this factual matrix, it has become all the more important for such lessee D2, to ascertain as to who stepped into the steps of his land lady after her death. Even for https://hcservices.ecourts.gov.in/hcservices/ argument sake it is taken that he was not aware of the Will, yet that would not in any way change the legal position. Simply because D2 claims to be a bona fide purchaser for valuable consideration, without notice of the Will, he cannot claim right over the suit property on the strength of Ex.A4, which was executed by D1, who was not the owner of the suit property. 24. There is no hard and fast Rule that if the beneficiary's husband is one of the attesting witnesses, the entire Will should