IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 08-12-2008 CORAM THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE V.DHANAPALAN O.S.A.No.470 OF 2002 C.Saradambal ... Appellant -vs- 1.Padmavathi (died) 2.Prema 3.Deepalakshmi 4.Murthy 5.Mythili 6.Vijaya 7.Krishnamurthy 8.Eshwaramurthy 9.Sathyamurthy 10.Banumathi 11.Sundaramurthy 12.Elumalai 13.S.Gomathi 14.Indumathi 15.Chitra 16.Thiruvengadam 17.Sumathi ... Respondents Respondents 13 to 17 are LRs.of the deceased first respondent vide order of Court dt.13.03.2008 made in CMP No.423 of 2008. For appellant : Mr.T.V.Ramanujam, Senior Advocate, for M/s.C.T.Mohan. For respondents 1,4 to 15 & 17 : Mr.B.Raveendran For respondent 16 : Ms.Shanthidevi https://hcservices.ecourts.gov.in/hcservices/ Appeal under Order XXXVI Rule II of Original Side Rules. JUDGMENT V.DHANAPALAN,J. This appeal is preferred against the order, dated 14.01.2000, made in T.O.S.No.20 of 1994, wherein a learned single Judge of this Court dismissed the suit for grant of probate. 2. The case of the appellant/plaintiff was that she is the wife of the legatee S.Damodaran, in whose favour the testator E.Srinivasa Pillai executed Ex.P-1, Will, on 04.01.1978; the said Damodaran died on 03.06.1989 in testate, leaving behind her and two daughters; similarly, the testator of the Will left behind him his son Damodaran and two daughters Savitri Ammal and Padmavathi; the amount of assets which was likely to come into the plaintiff's hands did not exceed in the aggregate sum of Rs.35,000/- and the net amount of the said assets after deducting all items which the plaintiff was by law allowed to deduct was Rs.34,000/-; the said Damodaran was enjoying the suit property and in possession to the full knowledge of his sisters, who filed O.S.No.5477 of 1990 on the file of IV Assistant City Civil Court, Madras, for partition of the suit property; hence, she filed O.P.No.150 of 1993, which was converted to T.O.S., for probate of the Will. 3. The suit was hotly contested by the respondents/defendants, stating that the alleged Will, Ex.P-1, dated 04.01.1978, was not valid and the signature of the testator in the document was fraudulently invented and forged; they alone looked after their father at the time of his death; Srinivasa Pillai died on 19.01.1978 in testate, leaving the defendants and the plaintiff's husband Damodaran; their mother predeceased their father; the plaintiff wilfully deserted their brother and resided in her parents residence; their brother Damodaran filed a matrimonial petition No.136 of 1988 against the plaintiff, seeking divorce, for which the plaintiff filed a counter giving consent; while the said case was sub-judice, Damodaran died in testate on 03.06.1989; though Damodaran lived for 11 years after the death of Srinivasa Pillai, he never disclosed about the execution of the alleged Will during his life time; were the document valid, he could have applied for probate; Srinivasa Pillai was completely bedridden, incapable of writing and understanding for a period of ten months prior to his death; there was a delay of 14 years in applying for probate and, hence, the plaintiff was not entitled for probate of the Will. https://hcservices.ecourts.gov.in/hcservices/ 4. Based on the above pleadings, the learned single Judge framed necessary issues and dismissed the suit, holding, inter alia, that unlike other documents, in the case of Will, valid execution and attestation must be duly proved and that the plaintiff had not discharged her burden of proving the valid execution and attestation of the Will. 5. At this juncture, the crucial and sole point that has to be decided is, whether Ex.P-1, Will, is a true and valid document ? 6. In this connection, it is quite relevant to extract Section 68 of the Indian Evidence Act, 1872, which reads as under : "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 of the Indian Registration Act,1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied." 7. The above provision would clearly show that it is enough if one attesting witness has been called for the purpose of proving the execution of a document. Admittedly, in this case, one of the attestors to Ex.P-1, Will, namely, Varadan, has been examined as P.W.2, who, in his evidence, has deposed that the testator, at the time of execution of the Will, was in a sound and disposing state of mind and he and the other attesting witness Dakshinamurthy saw the attestor executing the Will. Unfortunately, the other attesting witness, namely, Dakshinamurthy was not alive to be examined, to corroborate the genuineness of the Will. Equally, since the genuineness of the Will has been proved by the evidence of P.W.2, it is not necessary to call the other attestor, even if he is alive. Examination of the other attesting witness shall be required only if one attesting witness, examined to prove the Will, fails to prove the due execution of the Will. As already stated, in this case, the Will has been duly proved by the examination of P.W.2. https://hcservices.ecourts.gov.in/hcservices/ 8. This Court has also verified the signatures of the testator in the Will with those of the signatures available in the previous documents, namely, Ex.P-2, School Leaving Certificate, and Ex.P-3, Building Plan. On verification, this Court has no hesitation to hold that the signatures available in the Will are tallied with the signatures available in the School Leaving Certificate and the Building Plan. Though it is stated by the respondents that the legatee filed matrimonial petition against the appellant, in the absence of any order thereon, this Court cannot give much importance to such proceedings. Also, the respondents filed a suit for partition of the suit property on the file of IV Assistant City Civil Court, Chennai, which is stated to be pending. 9. It is argued by the learned counsel for the respondents that there is an inordinate delay in initiating the proceedings for probate of the Will. In this context, it is to be stated that the time taken and the reasons adduced for initiation of probate proceedings are the factors to be considered on the peculiar facts and circumstances of this case. Hence, the said argument fails. 10. The proof and validity of the Will has to be examined on the settled propositions of law such as the evidence of the attestor, comparison of signatures of the testator, legal principles, intention of the testator and other circumstances. However, the learned single Judge proceeded on the sole ground that the Will had not been probated for a long time. Therefore, the reasoning given by the learned single Judge cannot be sustained, as the legal principles are not properly followed. 11. For the foregoing reasons and in view of the discussion made above, the judgment of the learned single Judge is legally infirmed and the same is set aside. As such, this O.S.A. is allowed. No costs. Consequently, the connected C.M.P.No.9517 of 2006 and 1492 of 2008 are closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. dixit https://hcservices.ecourts.gov.in/hcservices/ To The Sub Assistant Registrar Original side High Court, Madras-104 1 cc to Mr.C.T. Mohan, Advocate, SR. 68876 1 cc to Mr.K.J. Chandran, Advocate, Sr. 68827 O.S.A.No.470 OF 2002 PA (CO) kk 6/1 https://hcservices.ecourts.gov.in/hcservices/