THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 22..01..2009 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.758 of 1999 Valliammal ... Appellant/2nd Plaintiff vs. 1.Lakshiammal 2.Ramasamy Gounder 3.Kumaravel 4.Soundararajan 5.Sundararajan ... Respondents 1 to 5 / Defendants 2 to 6 6.Muthya Ammal ... 6th Respondent/1st Plaintiff Appeal filed U/Sec.96 of C.P.C preferred against the judgment and decree dated 24.9.99 passed in O.S.No.152 of 1986 by the Subordinate Judge, Namakkal. For Appellant : Mr.D.Shivakumaran For Respondents: Mr.K.Sukumaran for RR1 to 5 JUDGMENT This appeal is focussed as against the judgement and decree dated 24.09.1999 passed by the learned Subordinate Judge, Namakkal in O.S.No.152 of 1986, which is one for partition of the suit property and for mesne profits. 2. Tersely and briefly, pithily and precisely, the case of the plaintiff as stood exposited from the averments in the plaint, the recitals in the documents and the submissions made by the learned counsel for the plaintiff, would run thus:- (a) One Narayana Gounder and his wife Nanjammal (D1) gave birth to four children, namely, Lakshmi Ammal(D2), Muthaya Ammal(P1), Ramasamy Gounder(D3) and Valliammal (P2). D4, D5 and D6 are the sons of D3-Ramasamy Gounder. (b) The suit properties are the self-acquired properties of the deceased Narayana Gounder. Consequent upon his death on 17.05.1984, his legal heirs, the plaintiffs and https://hcservices.ecourts.gov.in/hcservices/ defendants 1 to 3 were entitled to 1/5th share each. Accordingly they were enjoying the suit properties jointly. (c) Thereafter, the plaintiffs sought amicable partition, which evoked no positive response. The legal notice failed to pave the way for amicable partition. But, on the other hand, it evoked untenable reply from the defendants as though D3 became the absolute owner of the suit properties by virtue of the 'Will' executed by the deceased Narayana Gounder. Upon the death of Narayana Gounder's wife, each of the plaintiffs is entitled to ¼ th share. 3. Refuting and remonstrating, inveighing and impugning the allegations/averments in the plaint, the second defendant filed the written statement, the warp and woof of it would run thus: Narayana Gounder obtained a small portion of the suit property in the partition, which emerged among Narayana Gounder and his co-parceners. From out of the income derived from the said joint family nucleus and also from the joint exertion of Narayanasamy Gounder and D3- Ramasamy, several other immovable suit properties were purchased. Since the second plaintiff got married the husband of the first plaintiff, quite against the wish and will of her parents, Narayana Gounder wanted to deprive the plaintiffs to have any claim over the suit properties and accordingly Narayana Gounder executed Ex.B2-the 'Will' in favour of D3, as per Ex.B1 the cancellation deed, after cancelling Ex.B12 the earlier 'Will' of the year 1973 executed by him in favour of his grand children. Accordingly, she prayed for the dismissal of the suit. 4. The epitome and the long and short of the case of D3, as stood exposited from his written statement,which was adopted by D1, succinctly and concisely, be set out thus: In the partition, which emerged among Narayana Gounder and his co-sharers, Narayana Gounder was allotted the land bearing Survey No.159/2 measuring an extent of 1 acre and 97 cents. The rest of the immovable properties were purchased from out of the independent income derived by D3 and he has been enjoying them separately. D3 constructed a Mill, in the said Narayana Gounder's ancestral land, which he obtained in the partition. D3's mother in law, who had no male issues contributed necessary funds for such construction of Mill by D3. Ex.B12 the 'Will' dated 14.06.1973 was executed earlier by Narayana Gounder in https://hcservices.ecourts.gov.in/hcservices/ favour of D3's sons. Subsequently, the testator cancelled it as per Ex.B1-the 'Will' dated 15.03.1982, whereupon, Ex.B2-the 'Will' dated 17.03.1982 was executed by the same Narayana Gounder bequeathing all his properties in favour of D3. As per Ex.A1-the partition deed dated 05.12.1985, a partition was effected among Narayana Gounder's wife-D1, his son D3 and his paternal grand sons and they have been enjoying it peacefully. The plaintiffs are having no right over the suit property. Accordingly, he prayed for the dismissal of the suit. 5. D6 filed the written statement buttressing and fortifying the stand of D3. 6. In fact, D3 filed two additional written statements, detailing additional facts in support of his contention that the plaintiffs are having no right over the suit properties and also contending that the land bearing survey No.339/1, 4.55 acres was given in his favour by the Government under one "D" patta. Accordingly, he prayed for the dismissal of the suit. 7. The trial court framed the relevant issues. During the trial, the second plaintiff examined herself as PW1 and Exs.A1 to A8 were marked on the plaintiffs' side. On behalf of the defendants, one scribe by name Kandhasamy was examined as D.W.1, one Natesan was examined as D.W.2 and D3 examined himself as D.W.3 and Exs.B1 to B.12 were exhibited on the defendants' side. 8. Ultimately, the trial Court dismissed the suit. Being aggrieved by and dissatisfied with, the judgement and the dismissal decree of the trial Court, the plaintiffs have filed this appeal on the various grounds inter alia thus: (a) The judgement and decree of the trial court is against law, weight of evidence and all probabilities of the case. (b) Ex.B2, the 'Will' is a fabricated and forged one, but the trial Court failed to take note of the same. (c) The trial Court also fell into error in holding that the suit properties are not the joint family properties, despite the defendants having admitted that the land in Survey No.159/2 is the ancestral property. The trial Court was not justified in dismissing the suit in entirety. (d) In the absence of any evidence adduced on the side of the defendants to prove their contention that from out of https://hcservices.ecourts.gov.in/hcservices/ D3's mother-in-law's funds, D3 had source of income to acquire his own properties, the trial Court should not have dismissed the suit. (e) Overlooking the defects in the evidence of D.Ws.1 and 2, the trial Court simply believed the theory of the defendants and dismissed the suit of the plaintiffs. (f) In Ex.A1-the Partition Deed, there is no reference to Ex.B2-the 'Will', nonetheless, the trial Court believed the genuineness of Ex.B2 and that too, in the absence of any evidence to demonstrate and exemplify that it was Narayana Gounder, who signed it as executor of the 'Will'. Accordingly, the second plaintiff/appellant prayed for setting aside the judgement and decree of the trial Court. 9. The parties are referred to here under, for convenience sake, according to their litigative status before the trial Court. 10. The points for determination are as to : 1. Whether Ex.B2-the 'Will' was proved in accordance with law by D3, the propounder of the 'Will'? 2. Whether the suit properties are co-parcenery properties? 3. Whether the suit properties are partly ancestral and partly self-acquired properties of D3? 4. What were the rights of the deceased Narayana Gounder over the suit properties as on the date of his death and what was the quantum of his share in those properties? 5. Whether the plaintiffs are entitled to any share in the suit properties? 6. Whether there is any infirmity in the judgement and decree of the trial Court? Point No.1: 11. The epitome and the long and short of the argument of the learned counsel for the appellant/second plaintiff is that Ex.B2- the 'Will' is ex facie and prima facie a dubious document, which smacks falsehood; it allegedly emerged on 17.03.1982 as an unregistered 'Will'; whereas Ex.B1-the registered cancellation deed dated 15.03.1982, cancelling the earlier registered 'Will'-Ex.B2 dated 17.3.1982 would reveal that Narayana Gounder intended not to divert the line of succession by his 'Will' and in such a case in all probabilities, he might have intended to execute Ex.B2, the 'Will' in favour of D3 immediately two days after his decision not to interfere with the line of succession to the property by his legal heirs after https://hcservices.ecourts.gov.in/hcservices/ his death; there is no reference to Ex.B2-the' Will' in Ex.A1-the partition deed, dated 05.12.1985, which emerged a year and a half after the death of Narayana Gounder; the trial Court did not take into account the supine admission made by D3 quite against his own pleading; whereas it has simply accepted the case of D3 in toto; the trial Court ignored that the pleas of D3 were antithetical to his own pleadings, depositions and the recitals in Ex.A1 and other documents, which he relied on. Accordingly, she prayed for the dismissal of the suit. 12. The warp and woof, the gist and kernel of the argument of the learned counsel for the respondents/ defendants could be portrayed to the effect that the patchy evidence adduced on the plaintiffs' side is quite antithetical to the pleadings, so to say, the plaintiffs' claimed their alleged shares in the suit property by trying to project as though the suit properties are the self-acquired properties of deceased Narayana Gounder; but, on the other hand, during trial, the plaintiffs tried to project their case as though those properties are the joint family properties; the plaintiffs cannot blow hot and cold, approbate and reprobate and accordingly, their appeal should be dismissed. 13. The learned counsel for the respondents/ defendants would also develop his argument that by virtue of Ex.B2, the "Will", Narayana Gounder after cancelling the earlier Will Ex.B12, as per the cancellation deed Ex.B1, bequeathed his half share in the ancestral properties, which are found set out in the "B" Schedule of the plaint leaving the self-acquired properties of DW3, Ramasamy Gounder; DW3, the propounder of the "Will" Ex.B2 by examining DW1 Kandhasamy, the scribe of the Will and DW2 Natesan, the only surviving witness proved the "Will" and as such, absolutely there is no merit in the case of the plaintiffs. 14. Indubitably and incontrovertibly, the plaintiffs approached the Court with the case that the suit properties are the self- acquired properties of their father deceased Narayana Gounder, hoping and believing that, by such a plea, consequent upon the death of Narayana Gounder on 17.05.1984, the plaintiffs would be entitled to their respective shares as Class-I heirs under the Hindu Succession Act. But the circumstances, established before the Court unerringly and unassailably pointed out to the effect that by no stretch of imagination, the suit properties could be termed as the exclusive self-acquired properties of the deceased Narayana Gounder, as admittedly Narayana Gounder got an extent of 1.97 acres of land in the partition Ex.B3 dated 05.05.1927, which emerged between Narayana Gounder and his co-parceners; and the income derived from out of the said ancestral property, he acquired various other items of suit properties in his own name as per sale deeds, Exs.B5, B6 and B10. https://hcservices.ecourts.gov.in/hcservices/ 15. It is also the contention of the learned counsel for the respondents/defendants before this Court that the properties claimed to have been purchased by DW3 Ramasamy Gounder, the son of Narayana Gounder were not from out of the income derived from the said joint family properties. 16. At this juncture, my mind is reminiscent and redolent of the trite proposition of law that in a partition suit, the plaintiffs are defendants and the defendants are the plaintiffs and that de hors the contentions of the plaintiffs and their claim for specific shares, the Court could grant appropriate relief from what transpired from the admissible evidence, which were adduced before the trial Court. Accordingly, if viewed, it is crystal clear that simply because the plaintiffs wittingly or unwittingly, knowingly or unknowingly, had taken the plea that all the suit properties are the self-acquired properties of the deceased Narayana Gounder, nonetheless, relief could be granted in favour of the plaintiffs, depending upon the reliable piece of evidence which were placed before the trial Court. 17. Among the immovable suit properties, which are found set out in the "B" schedule of the plaint, three categories are involved:- (i) the admitted ancestral properties in the name of deceased Narayana Gounder; (ii) Ramasamy Gounder's alleged self-acquired properties, which he claims to have purchased from out of his own funds as per Ex.B7 and incorporated in the "B" Schedule of the plaint and (iii) the property bearing survey No.339/1, which was given by the Government in the name of Ramasamy Gounder as per "D" memo-Ex.B9. 18. According to the learned counsel for the appellant, the properties purchased under Ex.B7 and also the property acquired under Ex.B9 in the name of DW3 Ramasamy Gounder, should be taken as the co- parcenery properties of Narayana Gounder in view of the candid and supine admission made by DW3 Ramasamy Gounder in his deposition as under: @ehd; jdpg;gl;l Kiwapy; mlkhdk; bgw;w brhj;jhf ,Ue;jhYk;. fpiuak; bgw;w brhj;jhf ,Ue;jhYk; bghJ FLk;g brhj;jhf mDgtpf;fg;gl;L te;jJ. vf;rpgpl; V1 gj;jpuj;jpy; brhj;Jf;fs; bghJ FLk;gj;jpw;Fk; ghj;jpag;gl;lJ vd;Wk;. gphpf;fg;gltpy;iy vd;Wk; Twp , Ue;jhy; rhp jhd;/@ It is therefore crystal clear from the perusal of the above excerpts from the deposition of DW3, that DW3 without minching words admitted that all the properties referred to in the "B" Schedule of the plaint are the joint family properties of Narayana Gounder and himself. https://hcservices.ecourts.gov.in/hcservices/ 19. The common or garden legal principle is that the propounder of the Will has to prove it. DW3 Ramasamy Gounder (D3), being the propounder of the alleged unregistered Will Ex.B2, was expected to prove it, strictly in accordance with law. 20. The propounder should have examined himself first and thereafter, the scribe DW1 and the attesting witness DW2 Natesan, should have been examined, but surprisingly and curiously, in this case, those two witnesses have been witnessed as D.Ws.1 and 2 and the propounder of the Will examined himself as DW3. Apparently, I could see no material to indicate that DW3 obtained any permission from Court to examine himself after examining the witnesses. 21. Trite the proposition of law is that preponderance of probabilities would govern the adjudication in civil cases and it is therefore just and necessary to detail and delineate the circumstances involved in this case. 22. Indubitably and indisputably, Narayana Gounder executed Ex.B12 the registered Will dated 14.06.1973 in favour of his grand sons, viz., Kumaravel, Soundararajan and Sundararajan, all sons of DW3 Ramasamy, bequeathing his properties. However subsequently, by virtue of Ex.B1, the registered cancellation deed dated 15.03.1982, the same Narayana Gounder cancelled Ex.B12, the Will on the sole ground as revealed by the recitals contained therein that he did not want to enforce the earlier Will, Ex.B12. 23. Curiously and surprisingly, hardly two days after such cancellation deed Ex.B1 dated 15.03.1982, Ex.B2 the alleged unregistered Will dated 17.03.1982 is purported to have emerged, at the instance of Narayana Gounder in favour of DW3. But, Ex.B2 is not a registered one, even though after the alleged execution of Ex.B2 on 17.03.1982, the said Narayana Gounder lived for nearly 14 months and died only on 17.05.1984. 24. In this factual matrix, the evidence adduced on the side of the defendants has to be scrutinised and that too, in the light of the dicta as found enunciated in the various decisions of the Hon'ble Apex Court and this Court. (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] (iii)2005(1) CTC 443 [Sridevi and others vs. Jayaraja Shetty and others] https://hcservices.ecourts.gov.in/hcservices/ (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] A few excerpts from some precedents would run thus: (i) 2001(3)CTC 283 [Corra Vedachalam Chetty and another vs. G.Jankiraman]. The aforesaid decision 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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." (ii) 2003(1)CTC 308 [ Janki Narayan Bhoir vs. Narayan Namdeo Kadam]. An excerpt from it would run thus: "8. To say will has been duly executed the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e., (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witness has to sign the Will in the presence of the testator. 9. It is thus clear that one of the requirements of due execution of Will is its attestation by two or more witnesses which is mandatory. 10. Section 68 of the Evidence Act speaks as to how a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested 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 an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the will was duly and validly executed. That cannot be done by simply proving https://hcservices.ecourts.gov.in/hcservices/ that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of the proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of the clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in this evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the Will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act." (iii) An excerpt from one other decision reported in 1995 (II) CTC 476 [Kashibai and another vs. Parwatibai and others] would run https://hcservices.ecourts.gov.in/hcservices/ thus: "10. This brings us to the question of the will alleged to have been executed by deceased Lachiram in favour of his grand-son Purshottam, the defendant No.3. Section 68 of Evidence Act related to the proof of execution of document required by law to be attested. Admittedly, a Deed of Will is one of such documents which necessarily required by law to be attested. Section 68 of the Evidence Act contemplates that if a document is required by law to be attested, it shall not be used as evidence until the 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. A reading of Section 68 will show that "attestation" and "execution" are two different acts one following the other. There can be valid execution of a document which under the law is required to be attested without the proof of its due attestation and if due attestation is also not proved, the fact of execution is of no avail. Section 63 of the Indian Succession Act, 1925 also lays down certain rules with (C) of Section 63 provides that the Will shall be attested by two or more witnesses each one of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and and