IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.07.2008 C O R A M THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.305 of 1994 and Cross Objection No.40 of 2008 1. P.Shanmugham (Decd) 2. P.Gopalsami 3. P.Natarajan (Decd) 4. Kaliammal 5. Ponnusamy 6. Varadarajan 7. Vethanayagam 8. N.Palaniammal 9. Murugesan 10.Selvaraj 11.Venkatasalam 12.Moorthy 13.Samboornam 14.Rani .. Appellants in A.S.No.305 of 1994 and Respondents in Cross Objection No.40 of 2008. Appellants 4 to 7 brought on record as L.Rs of the deceased first appellant vide order of Court dated 4.4.2007 made in C.M.P.Nos.668 to 673 of 2007. Appellants 8 to 14 brought on record as L.Rs of the deceased third appellant vide order of Court dated 4.4.2007 made in C.M.P.Nos.668 to 673 of 2007. Vs. https://hcservices.ecourts.gov.in/hcservices/ 1. Chinnathayee 2. Kaveriammal 3. Rajalakshmi 4. Sankaran Nadar 5. Subramanian 6. Selvaraj 7. Ponnusami 8. Subbulakshmi .. Respondents 1 to 7 in A.S.No.305 of 1994 & Cross Objectors 1 to 7 in Cross Objection No.40 of 2008. 8th respondent given up in the appeal Appeal and Cross Objection filed as against the judgment and decree dated 10.12.1993 passed in O.S.No.360 of 1990 on the file of the learned Subordinate Judge, Tiruppur. For Appellants : Mr.A.K.Kumarasamy For respondents : Mr.T.M.Hariharan 1 to 7 R-8 given up JUDGMENT This appeal is focussed at the instance of the defendants as against the part of the judgment and decree dated 10.12.1993 passed by the learned Subordinate Judge, Tiruppur in O.S.No.360 of 1990, which was filed by the plaintiffs for partition and for other incidental reliefs. Whereas the plaintiffs filed Cross Objection challenging the finding of the trial Court upholding the validity of the Will in respect of the "B" scheduled property. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. 2. Tersely and briefly, the case of the plaintiffs as stood exposited from the plaint could be portrayed thus: The immovable property described in the "A" Schedule of the plaint was purchased by the deceased Palaniappa Nadar as per Exs.A1, A2, A3 and A6 from and out of his own earnings without having any ancestral nucleus. The said Palaniappa Nadar had three sons and five daughters. The plaintiffs 1 to 3 and D4 and one Kamalam are https://hcservices.ecourts.gov.in/hcservices/ the daughters and the defendants 1 to 3 are the sons. The said Palaniappa Nadar during his life time enjoyed the "A" Scheduled property as his self-acquired property and died leaving behind his sons and daughters to inherit his properties. The "B" Scheduled properties belonged to the mother, the wife of Palaniappa Nadar and she died leaving behind the same legal heirs as referred to supra to inherit her properties. The plaintiff No.4 is the husband of the deceased Kamalam, who was one of the daughters of Palaniappa Nadar and plaintiffs 5 to 7 are her children. However, the defendants had set up a plea as though, the mother of the plaintiffs executed a Will in favour of the minor children of her sons and she could not have executed such a Will as she was not in a sound disposing state of mind, in addition to not enjoying good health. Accordingly, they prayed for partition of the "A" Scheduled and "B" Scheduled properties into eight equal shares and allot four shares in favour of the plaintiffs. 3. Per contra, denying and refuting, challenging and impugning, the allegations/averments in the plaint, D3 filed the written statement, which was adopted by D1 and D2, the warp and woof of it, would run thus: The "A" Scheduled properties did not belong exclusively to Palaniappa Nadar, but to the joint family comprised of Palaniappa Nadar and his three sons, as those properties were enjoyed as such. After the death of Palaniappa Nadar, his sons D1 to D3 became entitled to those properties and they orally partitioned them among themselves. The plaintiffs were not in joint possession of the suit property along with D1 to D3. For plaintiff No.3, the deceased Kanniammal, wife of Palaniappa Nadar bequeathed an extent of 1.04 acres in Vallipuram Village as Seer Varisai, though it was the property was given in the name of the third plaintiff's husband. The other daughters of Palaniappa Nadar and Kanniammal were also given Seer Varisai. In fact, some of the items of immovable properties in the "A" Scheduled property did not belong to Palaniappa Nadar and his family. The "B" Scheduled properties happened to be the absolute property of the said Kanniammal. She during her life time executed a Will dated 19.01.1984 in favour of her three grand sons, so to say, the respective sons of P.Shanmugam, P.Natarajan and P.Gopalsami. She died on 14.07.1984 and those beneficiaries under the Will were not added as parties. Accordingly, they prayed for the dismissal of the suit. 4. The trial court framed the relevant issues. During trial, on the side of the plaintiffs PW1 was examined and Exs.A1 and Ex.A7 were marked. On the side of the defendants D.Ws.1 to 3 were examined and Exs.B1 and B2 were marked. Ultimately, the trial Court decreed the suit ordering partition as prayed for in the plaint relating to the "A" Scheduled properties and dismissed the https://hcservices.ecourts.gov.in/hcservices/ suit relating to the "B" Scheduled properties upholding the Will executed by Kanniammal. 5. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court in ordering partition of the "A" Schedule properties, the defendants 1 to 3 have filed this appeal on the following grounds among others. (i) The judgment and decree of the trial Court in ordering partition of the "A" Scheduled properties is against law, weight of evidence and all probabilities of the case. (ii) The trial Court failed to hold that the deceased Palaniappa Nadar had two acres of ancestral property, which yielded sufficient income to purchase the "A" Scheduled properties. (iii) Ignoring the legal presumption that the "A" Scheduled properties are the joint properties of the co- parcenery comprised of the deceased Palaniappa Nadar and his three sons, the trial Court simply ordered for partition as though the "A" Scheduled properties were the self-acquired properties of the deceased Palaniappa Nadar. (iv) The trial Court failed to note that Exs.A1 to A3 and A6 are only xerox copies of the documents, which are inadmissible. Accordingly, they prayed for setting aside that part of the judgment and decree of the trial Court in ordering partition of the "A" Scheduled properties. 6. The plaintiffs 1 to 7 filed Cross Objection as under:- (i) The judgment and decree of the trial Court was wrong in holding that Ex.B2, the purported Will was executed by Kanniammal. (ii) The Will was not proved in the way known to law. Kanniammal was suffering from high blood pressure; she was nervous and trembling and she could not have voluntarily executed the alleged Will. Ex.B2 Will was not produced till the time of trial. Accordingly, they prayed for setting aside that much portion of the judgment and decree of the trial Court in upholding the validity of the Will and in rejecting the prayer to order partition of the "B" Scheduled properties. https://hcservices.ecourts.gov.in/hcservices/ 7. The points for consideration are as to:- (a) Whether the A Scheduled properties of the plaint are the self-acquired properties of deceased Palaniappa Nadar or the joint family property of the deceased Palaniappa Nadar and his three sons, viz.,D1 to D3. (b) Whether Ex.B2 the Will was executed by Kanniammal and whether it was proved in the way known to law? (c) Whether there is any infirmity in the judgment and decree of the trial Court ? 8. Point No.1: Learned counsel for the plaintiffs, by placing reliance on Exs.A1 dated 26.09.1928, Ex.A2 dated 22.08.1945, Ex.A3 dated 03.05.1948 and Ex.A6 dated 18.11.1948, which are the sale deeds in favour of said Palaniappa Nadar, would develop his arguments that the purchases under those sale deeds were from and out of the earnings of Palaniappa Nadar as he had no joint family income yielding nucleus. 9. Learned counsel for the defendants, by drawing the attention of this Court to the deposition of DW1, would advance his arguments to the effect that during the year 1928, Palaniappa Nadar father's brother purchased 2 acres of land in Palaniappa Nadar's name so as to enable him to get Maniam's post as in those days to become a Maniam, one should have immovable property. Absolutely, there is no evidence to indicate that the Palaniappa Nadar's younger brother purchased the said property in the name of Palaniappa Nadar. The learned counsel for the plaintiffs would correctly and convincingly argue that even assuming without admitting that Palaniappa Nadar's father's younger brother purchased such property in the name of Palaniappa Nadar, yet it would constitute only a gift or donation given by him in favour of Palaniappa Nadar, which cannot be taken as an ancestral nucleus and that there is also nothing to prove that from out of such property, the other properties were purchased. It is therefore, clear that the contention of DW1, is his ipse dixit. There is no modicum or exiguous extent of evidence to highlight that the suit properties were purchased from out of the joint earnings of D1 to D3, the sons of Palaniappa Nadar. Hence, in this view of the matter, it is crystal clear that those properties described in the "A" Schedule properties were the self- acquired properties of Palaniappa Nadar relating to which the plaintiffs and defendants are entitled to shares and the trial Court correctly adjudged the same. The relationship among the parties are not in dispute. Accordingly, the trial Court's judgment relating to "A" schedule of the suit property is confirmed. Therefore, Point https://hcservices.ecourts.gov.in/hcservices/ No.1 is decided in favour of the plaintiffs and as against the contesting defendants 1 to 3. Point No.2: 10. The plaintiffs are challenging the Will Ex.B2 executed by the mother on the ground that she was not in a sound state of mind as on the date of emergence of Ex.B2. The learned counsel for the cross appellants viz., the plaintiffs, would contend that there were as many as five attesting witnesses to Ex.B2, which itself paves the way for suspicion; out of those attesting witnesses DW2 Rathinasamy alone was examined along with DW3 Kannan, the alleged scribe of the Will and the depositions of D.Ws.2 and 3 are fraught with inconsistencies and self-contradictory statements. He would also cite the following decisions: 1. 1994 (5) SCC 135 (Bhagwan Kaur vs. Kartar Kaur and others 2. 2003 (12) SCC 35 (Bhagat Ram and another vs. Suresh and others) 3. 2006 (13) SCC 449 (B.Venkatamuni vs. C.J.Ayodhya Ram Singh and others) 11. A perusal of the aforesaid judgments would cumulatively reveal that the propounder of a Will has to prove the due execution of the Will by the testator as per Section 63 (c) of the Indian Succession Act r/w Sections 67 and 68 of the Indian Evidence Act. There could be no quarrel over the proposition that a Will has to be proved strictly in accordance with those aforesaid provisions of law. 12. It is obvious and axiomatic that at least one of the attesting witnesses to the Will should be examined. Here DW2 one of the attesting witnesses was examined and he categorically deposed before the Court that he had seen Kanniammal, the testatrix affixing her thumb impression in the Will after understanding the contents of it and that the other witnesses also signed in his presence after witnessing Kanniammal putting her left thumb impression. However, the learned counsel for the Cross Objectors/plaintiffs by drawing the attention of this Court to the versions given by the witnesses during cross examination would develop his argument that in one breadth DW2 would state that the Will was signed at the Sub Registrar's Office and in another breadth, he would state that he did not visit the Sub Registrar's office at all; he would also state that the Will was written on embossed stamp paper even though the Will was written on plain papers. Similarly, he would highlight that DW3 the scribe also committed the same type of contradictions as he would in one breadth depose that the testator and the attesting witnesses, all went to Sub Registrar's Office and in https://hcservices.ecourts.gov.in/hcservices/ another breadth his claim was that he did not go to the Sub Registrar's office. No doubt, there are certain contradictions as highlighted by the learned counsel for the plaintiffs in the depositions of D.Ws.2 and 3. 13. Learned counsel for the defendants 1 to 3 would submit that due allowances should be given for lapse of memory on the part of the witnesses and that too, due to time lag between the emergence of Ex.B2 and the date of deposition before the Court. Ex.B2 the Will, emerged on 19.01.1984 whereas D.Ws.2 and 3 were examined before the Court on 10.11.1993, so to say, almost after 9 years. At this context, my mind is redolent with the Hon'ble Apex Court's decision reported in 2006 (2) LW 658 (Pentakota Satyanarayana and others vs. Pentakota Seetharatnam and others). An excerpt from it would run thus: "31. DW6 stated that D1 brought the draft Will and asked him to scribe the same. This is nowhere contradicted by DW5. DW5 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. DW5 was asked to attest. DW6 also speaks about the execution and attestation. The trial Court has made much about the draft Will aspect. This is hardly a suspicious circumstance. DW6 says that 4 male persons accompanied D1. This is hardly a suspicious circumstance. DW5 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." (emphasis supplied) A mere perusal of the said decision would highlight the fact that when there is lapse of long number of years between the date of emergence of a document and the date of deposition relating to the execution of the document, due allowances has to be given. In such matters, the witnesses contradictory answers relating to the facts as to who came first for signing and who came next for signing and all should not be taken as material and significant. 14. In this case, nine years period had elapsed before the witnesses D.Ws.2 and 3 deposed before the Court, from the date of emergence of Ex.B2 Will. During cross examination, in such circumstances, the witnesses are bound to commit some errors while meticulously furnishing some details. It has to be seen as to https://hcservices.ecourts.gov.in/hcservices/ whether relating to the main point, those witnesses stuck to their guns or not. Here, D.W2 and DW3 without any prevarication candidly and categorically deposed that they did see the testator affixing her thumb impression and also the witnesses signing. 15. The very decision cited supra reported in 2006 (2) LW 658 (Pentakota Satyanarayana and others vs. Pentakota Seetharatnam and others)would also highlight the following points: "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 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............. The document also contains the signatures of the attesting witnesses and the scribe. Such particulars are required to be endorsed by the Registrar along 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." Here Ex.B2 is the registered Will and as such it is having added sanctity and additional evidentiary value relating to its genuineness coupled with the other evidence adduced before the trial Court. 16. The learned counsel for the plaintiffs would contend that https://hcservices.ecourts.gov.in/hcservices/ DW2 would depose that the Will was written as dictated by the Advocate to DW3, who scribed the Will. Whereas DW3 in his deposition would depose as though Kanniammal gave the versions, which he wrote. In my opinion, those versions of D.W.2 and D.W3 should not be taken as though they gave conflicting answers. It is but natural that if a lady goes to her Advocate for getting the Will prepared and the scribe also is present, naturally, the Advocate would help the testator with legal clauses to be incorporated on ascertaining the wishes of his client, the testator and the scribe would be drafting it. While narrating as to what happened among the three, naturally there would be lack of cogency in her narration and it does not mean that the Court has to artificially analyse those evidence with draconian or suspicious eye. Keeping the above principle, it has to be seen as to whether, the testator, her Advocate and the scribe were present along with the attesting witnesses. Here, in this case, it has been amply established by D.Ws.2 and 3 that those persons were all present in one and the same place and at that time, Ex.B2 Will was prepared, whereupon Kanniammal affixed her left thumb impression following her the attesting witnesses also signed and the scribe also put his signature. In such a case, I could see no infirmity in the evidence adduced by D.W.2 and D.W3. 17. The learned counsel for the plaintiffs would point out that D.W2 himself had stated that Kanniammal did not know how to sign; she had no shivering and that she voluntarily put her thumb impression; whereas DW1 in his deposition would aver to the effect that long time anterior to the execution of Ex.B2 Will, Kanniammal used to sign and owing to her old age, her hands were shaking and hence she affixed her thumb impression. Once again, I would hold that evidence of this nature, should not be analysed artificially out of context. 18. To the risk of repetition, without being tautologous, I would like to highlight that nine years after the emergence of the Will, the witnesses deposed as to what was the ability of the testator and that too, a lady testator regarding her ability to sign, etc. DW1 happened to be the son and he might be in a position to know about his mother's capacity to sign etc. Whereas DW2 cannot be expected to be having that much knowledge about her ability to sign earlier to her executing the Will. As such, a rational approach is required in analysing the evidence of witnesses and in this factual matrix a draconian approach in analysing the evidence of the attesting witnesses would tantamount to throwing the baby along with the bath water. 19. In my considered opinion, there is also one other important fact, which should be taken into account while analysing https://hcservices.ecourts.gov.in/hcservices/ the evidence relating to the genuineness of the Will. It is a trite proposition of law, the witnesses might lie but the circumstances would not lie and it is also a well settled common or garden principle that preponderance of probabilities would govern the adjudication in civil cases. The whole kit and caboodle of facts and figures placed before the trial Court would tend anyone to understand that the daughters of Kanniammal got married and living separately and the sons also similarly got married and living separately and the mother was living with D3, one of her sons and it is but natural on the part of the mother to execute the Will relating to her property in favour of her sons' sons. The nearness and dependency of the beneficiaries could rightly be understood to be the actuating and accentuating factor for a person to execute the Will in favour of them. Here she was under the care and custody of her sons and in such a case, it was no wonder that she had executed such a Will so as to benefit her sons' sons rather than her daughter's children. 20. The learned counsel for the defendants 1 to 3 in an acceptable manner would put forth the argument that even though in the written statement, the defendants without minching words clearly and categorically highlighted that the beneficiaries under the Will happened to be the sons of D1 to D3, nonetheless, the plaintiffs had not even raised their little finger to implead those beneficiaries as defendants in the suit and that no adjudication as against such beneficiaries could be given. The plaintiffs despite they having been informed about the legal plea, they have not chosen to implead the beneficiaries also as parties under the Will. The fact remains that the plaintiffs themselves did choose to refer to the Will as a cooked up document and in such a case, they could have taken steps to implead the beneficiaries though not at least at the time of filing the suit but at least after perusing the written statement filed in the case. 21. Hence, I am of the considered opinion that the trial Court was justified in upholding the validity of the Will. In view of the ratiocination set out supra, I could see no infirmity in the judgment and decree of the trial Court. Accordingly, the appeal as well as the Cross Objection fails and the same are dismissed and the judgment and decree of the trial Court is confirmed. However, there shall be no order as to costs. Sd/- Deputy. Registrar. /true copy/ Sub Asst. Registrar. vj2 https://hcservices.ecourts.gov.in/hcservices/ To The Subordinate Judge, Tiruppur copy to The Section Officer VR Section, High Court, Madras. 1 cc to Mr.A.K. Kumarasamy, Advocate, SR. 39462 1 cc to Mr.T.m. HAriharan, Advocate, Sr 39564 A.S.No.305 of 1994 & Cross Objection No.40 of 2008 VSV (CO) kk 20/8 https://hcservices.ecourts.gov.in/hcservices/