IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01/ 11 / 2010 CORAM THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN O.S.A.NO.74 OF 2003 1. C.S.Devakumar 2. C.S.Sethu ... Appellants versus 1. K.S.Krishnakumar 2. N.Sankar 3. M.Murugavel 4. C.D.Suresh Kumar 5. C.S.Sampath Kumar 6. C.S.Sivaprakasam 7. Vatchala ... Respondents (7th respondent impleaded as a party respondent vide order of this Court dated 13.03.2006 made in C.M.P.No.1619 of 2006) PRAYER: O.S.A filed under order 36 Rule 9 of the O.S. Rules against the Judgment and Decree dated 15.03.2001 made in T.O.S.No.9/1991 on the file of this Court. For Appellants : Mr.V.Raghavachari For Respondent-1 : Mr.C.P.Sivamohan For Respondents 2 and 3 : Mr.Ramesh For Respondent-7 : Mr.S.V.Subramaniam J U D G M E N T D.HARIPARANTHAMAN, J. The first respondent herein filed Original Petition in O.P.No.303 of 1988 under Sections 222 and 276 of the Indian Succession Act for grant of probate of the last Will and testament dated 22.05.1986 of Mrs.Jagadambal. The respondents 4 to 6 as well as late Mr.C.S.Saravanan filed caveat and objected for grant of probate in favour of the first respondent. In these circumstances, the said Original Petition was converted and registered as Testamentary Original Suit in T.O.S.No.9 of 1991. In the suit, the first https://hcservices.ecourts.gov.in/hcservices/ respondent herein was the plaintiff and the respondents 4 to 6 herein and the deceased Mr.C.S.Saravanan were the defendants. On the death of Mr.C.S.Saravanan, the appellants herein, who are the sons of the deceased Mr.C.S.Saravanan, were impleaded as defendants 5 and 6. The respondents 2 and 3 herein were impleaded as plaintiffs 2 and 3 in the suit. 2.The testatrix Mrs.Jagadambal is the wife of one Mr.Subramani Mudaliar and the said Subramani Mudaliar predeceased her. Mrs.Jagadambal had four sons and three daughters born through Mr.Subramani Mudaliar. The four sons are, (i) Mr.C.S.Sampath Kumar (ii) Mr.C.S.Duraivelu (predeceased Jagadambal) (iii) Mr.C.S.Sivaprakasam (iv) Mr.C.S.Saravanan and the three daughters are, (i) Mrs.Amirthavalli (ii) Mrs.Vatchala (iii) Mrs.Jothi 3.Mrs.Jagadambal owned four items of immovable properties and she did not own any other property. Those four properties are at (i) Door No.42 to 50, Bazaar Street, Villivakkam, Chennai – 49. (ii) Door No.49 to 57, Red Hills Road, Villivakkam, Chennai – 49. (iii)Door No.21, 5th Street, Villivakkam, Chennai – 49. (iv)Pallam of an extent of 0.35 cents in Villivakkam Village bearing Survey No.276/1, Chennai – 49. 4.Mrs.Jagadambal executed a Will on 22.05.1986, bequeathing all the four properties mentioned above, to all the male-heirs of her sons and daughters. As one of the daughters viz., Mrs.Vatchala did not have male issue, she was made as one of the beneficiaries in the Will. The Will was attested by two witnesses viz., (a) Mr.R.Kumar and (b) Mr.P.K.Sivanandam, who were the family friends of Mrs.Jagadambal. Later, the Will was registered in the office of the Sub-Registrar, Ambattur on 23.05.1986. Mr.K.R.Shanmugham Mudaliar, the son-in-law of Mrs.Jagadambal, (i.e. the husband of Mrs.Amirthavalli) and his daughter – Ms.Shanthi were the witnesses for the registration of the Will. Mr.Krishna Kumar, grandson of Mrs.Jagadambal, born through her daughter Mrs.Amirthavalli and Mr.Ravi Kumar, grandson of Mrs.Jagadambal, born through her son Late Mr.Durai Velu, were the executors of the Will. After execution and registration of the will, Mrs.Jagadambal died on 30.11.1986. https://hcservices.ecourts.gov.in/hcservices/ 5.The male-heirs of the sons and daughters, who are the beneficiaries under the Will, are given below:- i) Sons of Mr.C.S.Sampath Kumar 1) C.S.Nanda Kumar 2) C.S.Bala Kumar ii) Sons of late Mr.C.S.Duraivelu 1) C.D.Suresh Kumar 2) C.D.Ravi Kumar 3) C.D.Ramesh Kumar 4) C.D.Mahesh Kumar iii) Sons of Mr.C.S.Sivaprakasam 1) C.S.Rajendran 2) C.S.Vijaya Kumar 3) C.S.Srinivasan 4) C.S.Murali 5) C.S.Damodaran 6) C.S.Arumugam (minor at the time of execution of the Will) iv) Sons of Mr.C.S.Saravanan 1) C.S.Deva Kumar 2) C.S.Sethu v) Sons of Mrs.Amirthavalli w/o Mr.K.R.Shanmugham Mudaliar 1) K.S.Krishna Kumar 2) K.S.Udaya Kumar vi) Sons of Mrs.Jothi w/o Mr.A.Marikrishnan 1) M.Shankar 2) M.Murughavel (both were minors at the time of execution of the Will) 6.As stated above, Mr.Krishna Kumar has filed the Original Petition in O.P.No.303 of 1988, praying for grant of probate in his favour, as Mr.Ravi Kumar relinquished his right as executor. As there were objections, the Original Petition was converted as Testamentary Original Suit. 7.Mr.Krishna Kumar, son of Mrs.Amirthavalli as well as Mr.Shankar and Mr.Murughavel, sons of Mrs.Jothi were the plaintiffs. Mr.C.D.Suresh Kumar son of late Mr.Durai Velu, Mr.C.S.Sampath Kumar, Mr.C.S.Sivaprakasam and Mr.C.S.Saravanan sons of Mrs.Jagadambal and Mr.C.S.Sethu, Mr.C.S.Deva Kumar, sons of Mr.C.S.Saravanan, were the defendants. 8.The defendants filed a written statement alleging that the Will is a fabricated document and it has been obtained by playing fraud. It is also stated that there is variation in the signature of https://hcservices.ecourts.gov.in/hcservices/ Mrs.Jagadambal and factually she could not have signed, as she was totally blind and had lost the usage of her faculties. Mrs.Jagadambal was not taken to office of the Sub-Registrar and some one impersonated for Mrs.Jagadambal. The attesting witnesses, Mr.Kumar and Mr.P.K.Sivanandam, are very close friends of the first plaintiff. The witnesses during the registration of the Will, are the father and sister of the first plaintiff. 9.Before the learned Judge in Testamentary Original Suit No.9 of 1991, the following issues were framed:- a) Was not the executant Jagadambal competent enough to execute the 'WILL' dated 22.05.1986? b) Is not the 'Will' dated 22.05.1986 valid and enforceable in the eye of law? c) Should not the claim of the defendants that the 'Will' is a forged one be rejected? d) Are not the properties referred to in the 'Will' belonged to the executant Jagadambal absolutely and not ancestral? e) Should not the suit be decreed as prayed for? 10. On the side of the plaintiffs, four witnesses were examined. Mr.Krishnakumar, PW-1 is the first plaintiff; Mr.P.K.Sivanandam, PW-2 is the attesting witness. Mr.C.D.Suresh Kumar, PW-3 is the first defendant in the suit. Mr.Rajamanikkam, PW-4 is an Advocate, who drafted the Will. 26 documents were marked as Exs.P-1 to P-26. 11.On the side of the defendants, only one witness was examined. Mr.Sethu, DW-1 is the sixth defendant in the suit. 6 documents were marked as Exs.D-1 to D-6. 12.The learned Judge decreed the suit on 15.03.2001. In the judgment, the learned Judge found that one of the attesting witnesses was examined. The learned Judge also found that the testatrix was in good and disposing state of mind and that she had good eyesight also. The aforesaid conclusion was reached by the learned Judge, by relying on the evidence of PW-2 and PW-4, besides the evidence of PW-1, the propounder of the Will. The learned Judge found that the testatrix instructed Mr.Rajamanikkam, Advocate PW-4 to prepare the Will and PW-4 prepared the Will in accordance with the instructions. The learned Judge also recorded that the signature of the testatrix was made in the presence of PW-2, the attesting witness and PW-4, the Advocate, who prepared the Will. Though the learned Judge found that there was slight variation in the signatures found at different pages https://hcservices.ecourts.gov.in/hcservices/ of the Will, the same need not to be given much importance. On the face of the sufficient and satisfactory evidence to the fact of execution of the Will by the testatrix and also taking into consideration the fact that the testatrix was an old woman, aged nearly 80 years, and hence her hand would have been shaky, the learned Judge granted probate. However, the learned Judge rejected the evidence of PW-3 as untrustworthy and not reliable, as he took one stand in the written statement and took different stand in favour of the plaintiffs, while he deposed before this Court. The learned Judge also rejected the evidence of DW-1 that he spoke inconsistently and his inconsistent testimony would point to the falsity of his evidence. The learned Judge also recorded that DW-1 was a minor, when the Will was executed. The learned Judge rejected the contention of the defendants that the Will is a forged one. 13.The defendants 5 and 6 have preferred the present appeal questioning the said judgment and decree dated 15.03.2001 made in T.O.S.No.9 of 1991 by the learned Single Judge of this Court. Later, Mrs.Vatchala got impleaded as seventh respondent in the present appeal. 14.We heard the submissions made on either side and perused the materials available on record. 15.The learned counsel for the appellants vehemently argued that having noted that there was variation in the signatures of the testatrix in the Will, the learned single Judge ought to have dismissed the suit. It was submitted that the learned single Judge ought not to have compared the signatures of Mrs.Jagadambal in the Will to himself, instead the learned single Judge ought to have referred it for expert opinion from a handwriting expert. It was also submitted that the learned single Judge failed to take into account the fact that the first plaintiff, the propounder, took an active role in the execution of the Will and also the fact that the daughters of Mrs.Jagadambal filed a suit in C.S.No.912 of 1993 alleging that the Will was a fabricated one. The learned counsel proceeded that the co-executor Mr.Ravi Kumar filed an affidavit in Ex.D5 that the Will is a fabricated one and the same was not duly considered by the learned single Judge. The learned counsel also submitted that while PW-4 admitted that Ex.P-2 Will nowhere states that he prepared the document, the learned single Judge ought to have rejected his evidence. It was further submitted that the registration of Will would not establish its genuineness. 16.The learned counsel for the appellants relied on the following judgments in support of his contentions that the Court ought not to have compared the signature at various pages in Ex.P2 – Will; that the propounder failed to prove the due execution of the Will; and also that the propounder played prominent part in https://hcservices.ecourts.gov.in/hcservices/ execution of the Will, rendering the propounder not entitled to claim probate. (i) For comparison of signature by an expert:- (a) The State (Delhi Administration) Vs. Pali Ram reported in (1979) 2 SCC 158. (b) B.Venkatamuni Vs. C.J.Ayodhya Ram Singh and others reported in (2006) 13 SCC 449. (c) Thiruvengadam Pillai Vs. Navaneethammal and another reported in (2008) 4 SCC 530. (ii) For the failure of the propounder to prove the due execution of the Will:- (a) Dinesh Chandra Mitra Vs. Bhabani Prasad Bhowmik reported in AIR 1969 ASSAM AND NAGALAND 118 (b) Kanthi Ram Bora Vs. Dom Bora reported in AIR 1975 GAUHATI 50. (c) Suresh Chandra Bal and others Vs. Niranjan Bal reported in AIR 1975 ORISSA 161. (d) Anath Nath Das and others Vs. Sm.Bijali Bala Mondal reported in AIR 1982 CALCUTTA 236. (e) Mrs.Sumangala T.Pai Vs. S.Sundaresa Pai and others reported in AIR 1991 KERALA 259. (iii) For prominent part of the propounder in execution of the Will:- (a) Jagat Ram Vs. Mst. Mathi reported in AIR 1965 Himachal Pradesh 62 (b) Susama Bala Devi and others Vs. Anath Nath Tarafdar and others reported in AIR 1976 Calcutta 377 (c) Kishan Singh Ahluwalia Vs. Smt.Sheela Saxena and others reported in AIR 2001 Madhya Pradesh 250 17.On the other hand, the learned counsel for the respondents 1 to 3 has taken us through the entire order of the learned single Judge and submitted that the learned single Judge recorded findings of fact, after analysing the evidences, with cogent reasons, and that, therefore, there is no reason to interfere with the same. It was further submitted that the submissions of the learned counsel for the appellants have no merit, since the learned https://hcservices.ecourts.gov.in/hcservices/ single Judge has categorically found that the testatrix instructed PW-4 to prepare the Will and that the testatrix was in good health and that she had good eyesight, when she executed the Will in the presence of the attesting witnesses and the Advocate, who prepared the Will. The learned counsel submitted that PW-4 Advocate came to the residence of the testatrix to receive instructions on the preparation of the Will and he prepared the Will based on the instructions of the testatrix. PW-4 also prepared the cancellation of General Power given by testatrix to one of her sons, in respect of some of the properties and the same was marked as Ex.P21, wherein the name of the junior of PW-4, Mr.Arockiaraj was mentioned as the person, who prepared Ex.P21. The learned counsel further had taken us through the only evidence of defendants and argued that there was nothing in the evidence in support of their version that the Will was a fabricated one. The learned counsel argued that the learned single Judge has correctly held that while there was no pleading by the defendants that the testatrix was not in the habit of putting her signature in the documents and that she used only to put her thumb impression, DW-1 deposed during cross-examination that the testatrix used only to put her thumb impression in the document. In these circumstances, the learned single Judge correctly disbelieved the testimony of DW-1 and held that his evidence was inconsistent. The learned counsel pointed out that though the first defendant was examined as PW-3 in support of the claim of the plaintiffs, the learned single Judge rejected the version of PW-3 as well. The learned counsel also pointed out that the learned single Judge relied on a decision of the Hon'ble Apex Court in Indu Bala Bose and others Vs. Maninder Chandra Bose and another reported in AIR 1982 SCC 133 in support of his findings. The learned counsel for the propounder, the first plaintiff, relied on the following judgments in support of his submissions:- (i) Sridevi and others Vs. Jayaraja Shetty and others reported in (2005) 2 SCC 784 (ii) Meenakshiammal Vs. Chandrasekaran and another reported in (2005) 1 SCC 280 (iii)Daulat Ram and others Vs. Sodha and others reported in (2005) 1 SCC 40 (iv) C.Saradambal Vs. Padmavathi and 16 others reported in 2008 (6) CTC 324 18.We have considered the submissions made on either side. 19.The following points arise for consideration:- (1) Whether the propounder has proved the due and valid execution of the Will? https://hcservices.ecourts.gov.in/hcservices/ (2) Whether the assertion of the appellants that the propounder/first plaintiff took an active role in execution of the Will is correct? If so, what is the effect of participation of propounder in the execution of the Will? (3) Whether the learned Single Judge has committed any legal error in comparing the signatures of the testatrix in the Will by himself with the admitted signature, for granting probate? (4) To what relief? 20. Point No.1 Whether the propounder has proved the due and valid execution of the Will? a) The Will has to be proved like any other document. At least one of the attesting witnesses should be examined for proving the Will, as per Section 63 of the Indian Succession Act, read with Section 68 of the Indian Evidence Act. Further, the registration of the Will also establishes the genuineness of the Will. However, we will make it clear that mere registration of the Will is not sufficient to prove that the Will was duly executed. In the present appeal, Ex.P2 - Will, is a registered document and further PW-2, one of the attesting witnesses, was examined to prove the document. PW-2 categorically deposed that the testatrix signed the Will in his presence and also in the presence of another attesting witness viz., Mr.R.Kumar. It is also in evidence that the attesting witnesses signed in the presence of the testatrix at the same time. PW-2 also deposed that the testatrix was in good health at the time of execution of the Will and that she had good eye sight. In the chief examination, PW-2 has deposed as follows:- "Executrix was in sound state of mind while signing the Will. The executrix had good eye sight at the time of executing the Will. It is not true to say that the executrix was blind at that time." b)Though there was a lengthy cross-examination of PW-2, there was no question put to PW-2 that the testatrix was not in good health and she did not have good eye sight. There was no suggestion put to PW-2 challenging the aforesaid version of PW-2. Further, PW-2 the attesting witness is not related to both the parties and he is an independent witness and he is only a family friend of the testatrix. c)Furthermore, PW-4 Advocate, who prepared the Will, deposed that one Mr.Jeeva Rathina Mudaliar, a former Court Officer in the Original side of this Court, took him to the house of the testatrix stating that his mother-in-law was an aged lady and that https://hcservices.ecourts.gov.in/hcservices/ she wanted to execute a Will regarding her properties and also wanted to discuss with him regarding the Will. He also deposed that on instructions from the testatrix, he prepared the Will. After a week, he went to the house of the testatrix for the due execution of the Will. His junior Mr.Martin Arockiaraj also accompanied him to the house of the testatrix. PW-4 also deposed that the testatrix glanced through the Will and requested him to read it out to her. Accordingly, he read out the Will. He read out the entire contents of the Will and the testatrix heard and was fully satisfied that it was in accordance with her instructions. Thereafter, she put her signature in his presence and also in the presence of the attesting witnesses viz., Mr.R.Kumar and Mr.P.K.Sivanandam immediately. Thereafter, the attesting witnesses signed in the presence of the testatrix. PW-4 deposed during the chief examination as follows:- "At the time of the execution of the Will, the said Jagadambal's hands were shaking and she was a very aged lady. Otherwise she was of sound health and of sharp mind." d)According to PW-4, about a year before the execution of the Will, he prepared Ex-P21, revocation deed, revoking the general power given by the testatrix to one of her sons, relating to some of the properties. He also identified the signature found in page No.4 of Ex.P-21 as that of his junior Mr.Martin Arockiaraj. e)Though the appellants pleaded in the written statement during trial that the Will is a fabricated one and it has been obtained by playing fraud and that the testatrix was totally blind and had lost the usage of her faculties, DW-1, the only witness examined on the side of the defendants, did not mince a word relating to the aforesaid averments. Before this Court also, the learned counsel for the appellants did not advance any argument on those lines. On the other hand, it was sought to argue that the daughters of the testatrix filed a suit for partition and that therefore, probate could not have been granted and that the co-executor – Mr.Ravikumar filed Ex.D5 describing the Will as a fabricated document and that therefore, probate should be declined. f)In our view, those submissions have no merit. Firstly, no such pleading was made relating to filing of suit by the daughters, either in the suit or in the appeal grounds. Furthermore, the copy of the plaint was also not produced. In any event that could not be put against the propounder seeking probate. We have perused Ex-D5, the affidavit said to have sworn in by Mr.Ravikumar, the co-executor. Mr.Ravikumar died during the trial. He was not examined to prove Ex.D5. Furthermore, the person before whom Mr.Ravikumar said to have sworn the affidavit, was also not examined. In the affidavit, it is simply stated that the testatrix was not in sound mind and she was in ill-health and she did not have eye sight when the Will was executed. https://hcservices.ecourts.gov.in/hcservices/ It is also stated that the testatrix used to put her thumb impression and that therefore, she could not have signed. The contents therein were not proved by examining any witness. As stated already, Ex.D5 was not proved in the manner known to law. More importantly, even DW- 1 did not depose that the testatrix was not in good health and that the testatrix did not have proper eye sight, when the Will was executed. Hence, the submissions made by the learned counsel for the appellants deserve to be rejected. g)The evidence of PW-2, PW-4 and PW-1 make it clear that the propounder discharged his initial burden of proving the Will. Hence, we could not find any infirmity in the finding of the learned single Judge that the execution of Ex.P2 Will was duly proved. We fully agree with the findings of the learned single Judge in this regard and the relevant passage in para 19 of the judgment in T.O.S.No.9 of 1991 is extracted here-under:- "19.....As stated above, apart from PW-1 one of the propounders, PW-2 an attesting witness and PW-4 an advocate who prepared and who was present at the time of execution of the Will have clearly spoken to the fact that she was in a good and disposing state of mind and she would have good eye sight also. Except the assertion of the contesting defendants, that she was not possessed of good health, faculty, eye sight and disposing state of mind, no material or proof is available in the whole evidence adduced before this Court." 21.We have perused the judgments relied on by the learned counsel for the appellants. In fact, those judgments are far from helping the appellants and are in favour of the propounder. i) In Dinesh Chandra Mitra's case (cited supra) the testatrix had no issues. The testatrix executed an earlier Will, wherein the propounder was not given any benefit and the objector was given the benefit in the earlier Will. The District Court found on facts that the testatrix was not in good and sound health, at the time of execution of the Will and she did not have the requisite mental capacity to dispose of her property. In those circumstances, the High Court of Assam and and Nagaland confirmed the order of the District Judge, refusing to grant probate. Thus, this case is of no help to appellants. ii) The judgment in Kanthi Ram Bora's case (cited supra) is also of no help to the appellants. In this case, the testator was the uncle of the propounder of the Will. The earlier probate case was dismissed. The Will was prepared by a document writer and the attesting witnesses were also document writers. None of the attesting witnesses were examined. Hence, the District Court rejected the application seeking probate. The same was upheld by the High Court of https://hcservices.ecourts.gov.in/hcservices/ Gauhati. iii) In Suresh Chandra Bal's case (cited supra) relied on by the learned counsel for the appellants, the testator had no issues. There were Civil Suits filed by the testator against the propounder during his life time. The case of the objector was that the testator suffered due to long illness and he had loss of power of understanding and he had completely imbecile and he had no testamental capacity. Medical evidence was let in and the same was believed. We are not able to understand as to how this judgment could render any assistance to the appellants. (iv) In Anath Nath Das's case (cited supra) relied on by the learned counsel for the appellants, the testatrix had two wives. The first wife had pre-deceased him. Three sons and one daughter born through the first wife was not given any benefit under the alleged Will. It was held as unnatural, improbable and unfair. Furthermore, the attesting witness deposed that the testator had no testamentary capacity. Yet another suspicious circumstance that weighed with the Court was that though the testator was admittedly a literate person, the Will was not signed by him and left thumb impression was put on the Will. In those circumstances, the probate was rejected. In fact, the following passage in para 4 of the judgment supports the case of the propounder:- "4.It has been the consistent view of the courts that as the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test