IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.06.2011 CORAM THE HONOURABLE MS. JUSTICE K.B.K.VASUKI S.A.No.371 of 1998 Sakkubai …Appellant/Plaintiff Vs. 1.Kadirvelu 2.Doraipandian 3.Dayalan 4.Govindan 5.Vadivelu 6.Andappan 7.Santhoshammal 8.Maniammal 9.Panchalai 10.Dhanapandian …Respondents/Defendants Prayer:- Second Appeal is filed under Section 100 of Code of Civil Procedure against the Judgment and Decree dated 26.11.1996 made in A.S.No.148 of 1996 on the file of the Subordinate Judge, Senior Division, Kallakurichi confirming the Judgment and decree dated 31.03.1993 made in O.S.No.497 of 1987 on the file of the Additional District Munsif, Kallakurichi. For Appellant : Mr.V.Ragavachari For Respondent No.1 : M/s.Sarvabhauman Associates J U D G M E N T The plaintiff is the appellant herein. The suit arising out of which is the present second appeal is filed by the appellant for the relief of partition and separate possession of her ½ share in the suit property and for past and future mesne profits. The suit is dismissed by the trial court and the judgment and decree of the trial court is also confirmed by the lower appellate court. Hence, the present second appeal before this court by the plaintiff. 2.The second appeal is admitted on the following substantial questions of law: a. Whether the courts below should not have held that in as much as Maniammal claims through the will under Ex.A1, the provisions of law under Section 14(2) of the Hindu Succession Act alone would apply? https://hcservices.ecourts.gov.in/hcservices/ b. Whether the judgement and decree of the courts below in A.S.No.148/96 dated 26.11.1996 on the file of Civil Judge, Senior Division, Kallakurichi in confirming the judgement and decree in O.S.No.497/87 and dated 31.3.1993 on the file of the Additional District Munsif, Kallakurichi is even otherwise illegal, incompetent and without jurisdiction and in any event liable to set aside? 3.The suit property originally belongs to one Viswanatha Udayar and the same was succeeded by his only son Nallu Udayar, who is none other than the maternal grand father of the plaintiff. The genealogy of the family is as follows: Nallu Udyar l Maniammal (wife) l---------------------------------------l l l Valliammal Kuppuammal (died unmarried) l l Periyanayaki Ammal l--------------------------l l l Kadirvelu (D1) Sakku Bai (Plaintiff) l l Durai Pandiyan (D2) According to the plaintiff, Nallu Udayar while he was alive executed a Will dated 19.3.1924 in sound disposing state of mind thereby conveyed all the properties to his daughters Valliammal and Kuppuammal and Kuppuammal died umarried and the other daughter Valliammal became the sole owner of the entire property and after the death of Valliammal, her only daughter Periyanayaki Ammal succeeded to the property and on her death, the plaintiff and the first defendant, who are the children of Periyanayaki Ammal are entitled to half share in the property and the demands made by the plaintiff to her first defendant/brother in person and through legal notice to divide the property and allot ½ share in the same to the plaintiff remained unresponded and the same compelled the plaintiff to institute the suit arising out is the present second appeal. 4.The suit claim is resisted by all the defendants, particularly the defendants 1 & 2, who are the father and son, by denying the truth and validity of the Will executed by Nallu Udayar. It is their case that after the death of Nallu Udayar, his widow Maniyammal was in possession and enjoyment of the property as limited owner and her limited right became enlarged after coming into force of Hindu Succession Act and Maniyammal executed settlement deed in favour of the minor second defendant in her capacity as full owner of the same and the settlement deed was https://hcservices.ecourts.gov.in/hcservices/ accepted by the first defendant who is the father of the minor second defendant and from 6.9.1971, the defendants 1 and 2 have been in possession and enjoyment of the suit properties. It is also their case that by reason of such possession of the suit property in their own right for more than the statutory period adverse to the knowledge of all including the plaintiff, they acquired prescriptive title. 5.The parties have, in support of their respective claim, examined the plaintiff and the first defendant and his witness as P.W.1 and D.W.1 and D.W.2 and produced copy of the will, exchange of notices and original settlement deed as Exs.A1 to A3 and Ex.B1. 6.The trial court has, on the basis of the available records, found that the plaintiff failed to prove the truth and validity of Ex.A1 Will executed by Nallu Udayar and also failed to prove the date of death of Nallu Udayar and one of the daughters Kuppuammal and also that Ex.A1 Will duly came into force in favour of daughters on the death of Nallu Udayar and no document is produced to prove possession and enjoyment of the property either by Valliammal or her daughter Periyanayaki Ammal and on the death of Nallu Udayar, his wife Maniyammal became the life estate owner and her right got enlarged after coming into force of Hindu Succession Act and thereafter she became the full owner of the property and Maniyammal in her capacity as absolute owner of the same, executed settlement deed in favour of the minor second defendant and the same is accepted by his father/first defendant on behalf of the minor settlee and thereafter, the defendants 1 and 2 have been in possession and enjoyment of the same and the plaintiff has no right to claim any share in the suit property. The trial court has further held that the defendants 1 and 2 have also proved their prescriptive title on the basis of adverse possession and the trial court thus, dismissed the suit. Aggrieved against the same, the plaintiff filed A.S.No.148 of 1996. The lower appellate court also confirmed the finding of the trial court on the same ground and dismissed the appeal. Hence, this second appeal before this Court by the plaintiff. 7.As already referred to above, the plaintiff on one hand claims half share and the defendants 1 and 2 on other hand, claim absolute right in the suit property on the strength of Ex.A1 Will and Ex.B1 settlement deed respectively. It may be true that the defendants denied the truth and valid execution of Ex.A1 Will in the written statement. However, the first defendant as DW1 in the witness box admitted the existence of will and further admitted that Maniyammal became entitled to the suit property as limited owner, on the basis of document so executed by Nallu Udayar. An interesting question which arises for consideration herein is as to whether in view of such admission made by DW1, the truth, genuineness and valid execution of Will can be held to be admitted and the same discharges the burden cast upon the plaintiff to prove due and valid execution of the same. https://hcservices.ecourts.gov.in/hcservices/ 8.While according to the learned counsel for the plaintiff, the existence and execution of the Will, having been admitted by the contesting defendant, no burden is cast upon the plaintiff to prove the same, the learned counsel for the defendants would seriously argue that mere admission of execution of the Will will not amount to admission of valid execution and attestation of the Will in sound disposing state of mind, free from suspicious circumstances as contemplated under Section 68 of the Indian Evidence Act. The learned counsel for the plaintiff and the defendants have in support of their respective contentions, cited the following authorities. 9.The authorities cited on the side of the plaintiff are (i) 2010 (5) SCC 770 in Balathandayutham and another v. Ezhilarasan and (ii) 2004 (2) LW 355 in Bhagat Ram and another v. Suresh and others. 10.The authorities cited on the side of the defendants are (i) AIR 2003 SC 761 in Janki Narayan Bhoir v. Narayan Namdeo Kadam, (ii) 2009 (3) SCC 687 in Bharpur Singh and others v. Shamsher Singh, (iii) 2003 (3) MLJ 67 in Duraikannu Padayachi v. Meera and (iv) 2009 (2) TLNJ 593 (Civil), Madras High Court in V.R.Narayanasamy (died) and others v. Rajammal rep. power agent Mr.Kanagaraj and others. 11.It is true that our apex court has in the judgement reported in 2010 (5) SCC 770 observed that "when the execution of the Will is not denied, no burden is cast on the party who relies on a will to prove its execution". However, the dispute raised herein is, as rightly argued by the learned counsel for the defendants, not simple as the case dealt with by the Hon'ble Supreme Court. In my considered view, here is the case wherein mere admission of the first defendant as DW1 about the existence of execution of Will, will not amount to admission of true and valid execution of the will for the following reasons: The document produced herein as Ex.A1 is not the original will, but is the copy of the will. Both the plaintiff and the defendants 1 and 2 have admittedly no direct knowledge about the execution of will and they were not even born on the date of execution of will. The plaintiff has also not able to explain the reasons for not producing the original will. No explanation is put forth either in the plaint or in the witness box. The plaintiff also denies any knowledge about the whereabouts of the original of the will. Further, both the plaintiff and the defendants were not able to give any particulars regarding the date of death of Nallu Udayar and one of his daughters, Kuppuammal, who died unmarried to ascertain as to whether Kuppuammal predeceased her father or not. Under such circumstances, the legal principles laid down by the Supreme Court and our High Court, following the judgment cited on the defendants' side of the Apex Court, will come to the aid of the defendants. https://hcservices.ecourts.gov.in/hcservices/ 12.Our Hon'ble Apex Court in another case reported in 2008 (1) LW 241 in Benga Behara and another v. Braja Kishore Nanda and others, has laid down that "a document upon which a title is based is required to be proved by primary evidence and secondary evidence may be given under Section 65(c) of the Evidence Act. Loss of the original, therefore, was required to be proved. In a case of this nature, it was obligatory on the part of the first respondent to establish the loss of the original Will, beyond all reasonable doubt." In the instant case, the circumstances under which the original will was not produced is neither pleaded nor proved. 13.Regarding the mode of proof, the Supreme Court has observed in the same judgement that "the execution of a Will is required to be proved in terms of Section 63 of the Succession Act, in terms whereof a Will must be attested by two or more witnesses. The execution of a Will therefore can only be proved in terms of clause (c) of Section 63 when atleast one of the two witnesses proves the attestation. The Will is required to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will. Section 68 of the Evidence Act, provides for the requirements for proof of execution of the Will. In terms of said provision, at least one attesting witness has to be examined to prove execution of the Will." 14.The Supreme Court has also in para 25 of its judgement dealt with three exceptions under Sections 69, 70 and 71, where it is not possible to strictly comply with the requirements of Section 68. Section 69 provides for proof of a document where no attesting witness is found. Section 70 provides for admission of execution by party to attested document. Section 71 deals with a situation where the attesting witness denies or does not recollect the execution of the document and only in that eventuality, the document's execution may be proved by other evidence. The Supreme Court has further in para 28 of the same judgement, referred to the earlier judgement reported in Janki Narayan Bhoir v. Narayan Namdeo Kadam ((2003) 2 SCC 91) which laid down the law to deal with a situation where it is not possible to prove the execution of the Will by calling the attesting witnesses, though alive and the same is extracted herein: "11.Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68 of the Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling the attesting witnesses, though alive. This section provides that if an attesting witness denies or does not recollect the execution of the will, its execution may be proved by other evidence. Aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the will and other attesting witnesses https://hcservices.ecourts.gov.in/hcservices/ though are available to prove the execution of the same, for reasons best known, have not been summoned before the court. It is clear from the language of Section 71 that if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. However, in a case where an attesting witness examined fails to prove the due execution of will as required under clause (c) of section 63 of the Succession Act, it cannot be said that the Will is proved as per Section 68 of the Evidence Act. It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of will can be proved by other evidence dispensing with the evidence of other attesting witnesses though available to be examined to prove the execution of the will." (Emphasis supplied) 15.Our Supreme Court in AIR 2003 SC 761 is of the clear view that "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 and that cannot be done by simply proving that the signature on the Will was that of the testator, but must also prove that attestations were also made properly as required under Clause (c) of Section 63 of Succession Act". 16.In yet another judgement reported in 2008 (4) LW 770 in Babu Singh and others v. Ram Shai @ Ram Singh, the Supreme Court has observed that 'attestation' and 'execution' connote two different meanings and indisputably a Will is to be attested by two witnesses in terms of Section 68 of the Indian Evidence Act. The requirement of Section 63(1)(c) of the Indian Succession Act is to be complied with for proving a Will. Section 68 of the Act mandates proof, by attesting witnesses, of not merely of execution, but also attestation by two witnesses. That is to say, not only the execution of the Will must be proved, but actually execution must be attested by atleast two witnesses. Attestation must be of execution of will be in conformity with the provisions of Section 3 of the Transfer of Property Act... When genuineness of the Will is in question, apart from execution and attestation of Will, it is also the duty of the person seeking declaration about the validity of the will to dispel the surrounding suspicious circumstances existing if any. 17.In other judgement reported in (2009) 3 SCC 687 (Bharpur Singh and others v. Shamsher Singh), the Supreme Court has referring to the judgement reported in (2006) 13 SCC 449 (B.Venkatamuni v. C.J.Ayodhya Ram Singh) held that "a Will must be proved in terms of Section 63(c) of the Succession Act 1925 and the execution must be proved by at least one of the attesting witness". It is observed in the judgement reported in (2006) 13 SCC 433 : (2006) 14 Scale 186, (Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao), that "while making attestation, there must be an animus https://hcservices.ecourts.gov.in/hcservices/ attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable". It is also further observed therein that "in the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated". 18.The learned brother judge of this Court had an occasion to deal with the mode of proof of execution of Will in the judgement reported in 2009(2) TLNJ 593 (V.R.Naryanasamy (died) and others v. Rajammal rep. by power agent Kanagaraj and others). In the case dealt with by our High Court, the execution of Will in favour of the first plaintiff was denied in the written statement by the second defendant, but the second defendant as DW2 admitted the execution of the Will by the mother, but the same witness in the later part of his evidence, denied any knowledge about the other particulars relating to the execution of the will and the same was construed as only in respect of execution of the Will coupled with specific details of other details such as manner of attestation and execution. Though the Court below held the execution of Will to be proved, the High court reversed the finding on the ground that due attestation of the Will is not proved and consequently execution of Will is not established. Our High court has in the judgement referred to above, analysed the law relating to the mode of proof of execution of the Will in detailed manner, by referring to the earlier judgements of the Hon'ble Supreme court reported in (i)AIR 1940 MAD 315 (Sadachi Ammal v. Rajathi Ammal and others); (ii)AIR 1959 SC 443(H.Venkatachala Iyengar v. B.N.Thimmajamm and others); (iii) 2007 (2) LW 870 (B.Venkatamuni v. C.J.Ayodhya Ram Sing and others); (iv)(2007) 7 SCC 225 (Apoline D'Souza v. John D' Souza) and (v) 2008 (4) LW 770 (Babu Singh and others v. Ram Sahai @ Ram singh) and applied the principles laid down by the Hon'ble Apex court particularly the judgement reported in 2008-4-LW-770 as referred to above. 19.The combined appreciation of the law laid down by the Supreme Court and our High court, if viewed in the light of the facts involved in the present case, would reveal that mere admission of execution of Will by DW1 in the witness box, will not amount to admission of true and valid execution of the Will in the manner required under law for the plaintiff to claim exemption to prove the execution of the will. Even otherwise, both the courts below have on the failure of the plaintiff to furnish details about date of death of Kuppammal and Nallu Udayar and the exact date of coming into force of the will, rightly found that the persons whether both the daughters or one of the daughters who inherited the same under the will cannot be ascertained. Even assuming that Ex.A1 is truly and validity executed by Nallu Udayar, the same does not improve the claim of the plaintiff for the following reason. 20.If Nallu Udayar died during the life time of Kuppammal, the Will came into force immediately and on the death of Kuppammal without any marriage, her ½ share would have been succeeded by https://hcservices.ecourts.gov.in/hcservices/ Maniammal and Valliammal and her daughter Periyanayaki ammal would have been entitled to get ½ share and Maniammal is entitled to deal with her ½ share, as such, the plaintiff Sakkubai, who is one of the heirs of Periyanayaki Ammal, is not entitled to claim ½ share in entire property, but she is entitled to claim her share in the ½ share succeeded by Valliammal and thereafter Periyanayaki Ammal. If Nallu Udayar died after Kuppammal, then the share allotted to Kuppammal under the Will remained to be that of his own and on his death, his surviving wife and daughter got equal right or the wife got right to be maintained out of the estate of the husband. Thus, the date of death of Kuppammal and Nallu Udayar are more relevant to decide the share due to other daughter of Nallu Udayar i.e. Valliammal and thereafter her daughter Periyanayaki Ammal through whom the plaintiff claims title and to decide the right of maintenance of wife Maniammal. 21.Even otherwise, the existence or absence of will does not affect the right of Maniyammal who is the wife of Nallu Udayar, Maniyammal either without or under the recitals of the will is entitled to right of maintenance out of the estate of her husband and such limited right got enlarged by virtue of section 14(1) of Hindu Succession Act. Thereafter, her half right is enlarged into full ownership with full right to deal with the property in question and accordingly Maniyammal dealt with the same by executing Ex.B1 settlement deed in favour of the second defendant and the execution of the same is also duly admitted by the plaintiff. Hence, both the courts below have rightly negatived the plaintiff's claim for ½ share in the suit property and accordingly decided the suit relief against the plaintiff. This Court finds no reason to interfere with such findings of the courts below and the substantial questions of law are accordingly decided against the plaintiff. 22.In the result, the second appeal stands dismissed. Considering the relationship between the parties, there is no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rk https://hcservices.ecourts.gov.in/hcservices/ To 1.The Subordinate Judge, Senior Division, Kallakurichi. 2.The Additional District Munsif, Kallakurichi. Copy to: The Section Officer, V.R.Section, High Court, Madras. 1 cc to M/s.Sarvabhauman Associates, Advocate, Sr.No.35560 1 cc to Mr.V.Raghavachari, Advocate, Sr.No.34774 S.A.No.371 of 1998 KSJ {CO} TP/27.1.2012. https://hcservices.ecourts.gov.in/hcservices/