IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.07.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE R.SUBBIAH O.S.A.NO.177 OF 2004 G.Nagappan .. Appellant Vs. 1.B.Kalaichelvam 2.Poongavanam 3.B.Kumari 4.R.Vijaya 5.B.Elango 6.B.Ravi 7.B.Ramesh 8.B.Latha 9.B.Ananthi 10.D.Chokkanathan 11.D.Gopi 12.D.Raja 13.D.Kannan 14.D.Bhuvaneswari 15.D.Ravi 16.D.Jaya 17.K.Chinnaponnu 18.Jagannathan (died) 19.Masilamani 20.Mohanasundaram (R18 died recorded as per order of Court dated 9.7.08 made in Memo dt.28.6.06 SR.No.57264/06 .. Respondents This O.S.A. has been preferred under Order XXXVI Rule 11 of O.S. Rules read with Clause 15 of Letters Patent against the judgment and decree dated 22.06.2004 in T.O.S.No.14 of 1995. For Appellant : Mr.M.S.Palanisamy For Respondents: Mr.R.Muthukumarasamy, Senior Advocate for Mr.A.Jenasenan for R1 Mr.R.Kamesh for RR3,4, 10 to 17 No appearance for RR2,5 to 9, 18 to 20 - - - - https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) A challenge is made by the 17th defendant to the judgment of the learned Single Judge made in T.O.S. No.14 of 1995. 2.The first respondent/plaintiff filed originally an orignal petition for the issue of probate and subsequently, it was converted to a suit. The plaintiff filed the proceedings, seeking the relief with the following averments: The plaintiff's aunt one Saraswathi Ammal has executed a Will on 1.12.1989, bequeathing her entire estate in the schedule mentioned property absolutely in favour of the plaintiff; that she died on 20.08.1990; that the Will was attested by two witnesses, namely S.Rajasekaran and S.Venkateswaran; that on her death, the Will has come into force; that her husband predeceased her; that the deceased had no issues and hence except the plaintiff, no one is entitled to have any share; that since the Will has come into force, the plaintiff is entitled to the property and he required that it has got to be probated and under these circumstances, he has approached this court. 3.The defendants filed written statement, inter-alia, admitting that the said Saraswathi Ammal is the wife of Palani Chettiar, who predeceased his wife; that the said Saraswathi Ammal also died on 20.08.1990, but she died intestate; that at no point of time, she executed any will or testament as put forth by the plaintiff; that the plaintiff could not claim the property as the heir of the deceased; that the Will was shrouded with suspicious circumstances; that it was a forged document, which was brought forth by the plaintiff to his advantage; that one attesting witness was the maternal uncle of the plaintiff, while the other also hails from the same place and hence they have actually supported the cause of the plaintiff in bringing forth the fabricated Will; that the 'C' schedule property absolutely belonged to Palani Chettiar, while 'A' and 'B' schedule properties were acquired by Saraswathi Ammal; that the defendants by operation of law were to succeed to the property, but in order to defeat their right, such a Will has been brought forth and hence it is an invalid document and therefore, it is not a fit case where the probate could be issued and hence the suit was to be dismissed. 4.The learned Single Judge framed three issues. On the side of the plaintiff, P.W.1, the propounder and P.Ws.2 and 3, the attesting witnesses were examined and Exs.P.1 to P.15 were marked. On the side of the defendants, one Bakthavatsalam was examined as D.W.1 and through whom, Ex.D.1 was marked. The learned Single Judge, on enquiry and after considering the materials available, took the view that the propounder has proved due execution and attestation of the Will and thus, he has proved the Will and therefore, the Will is the https://hcservices.ecourts.gov.in/hcservices/ valid one and hence the relief was to be granted and accordingly, granted the relief. Aggrieved the 17th defendant has brought forth this appeal. 5.The points that would arise for consideration before this court in this appeal are: i)Whether the first respondent/plaintiff has proved the Will? ii)Whether it could be declared as invalid document for the reasons stated by the appellant and the circumstances shown to the Court? 6.Advancing arguments on behalf of the appellant, the learned Senior Counsel would submit that the first respondent/plaintiff came forward originally with the original petition in O.P.No.621 of 1990 and got an ex parte order in his favour, keeping all the close relatives and the heirs, who could succeed the property of Saraswathi Ammal by operation of law, in darkness; that after coming to know about the same, an application was filed in Application No.5800 of 1991 in order to set aside the ex parte order, which was dismissed and an appeal was preferred in O.S.A.No.105 of 1992 and the same was allowed and all other defendants were ordered to be added as parties. Thereafter, they have filed written statement and challenged the proceedings. According to the plaintiff, the Will was executed on 01.12.1989 and the said Saraswathi Ammal died on 20.08.1990. On the side of the plaintiff, three witnesses were examined. P.W.1 was the propounder and P.Ws.2 and 3 were said to be the attesting witnesses. From the evidence of P.W.1, it would be quite clear that he was not present at the time of execution of the Will. On the contrary, his evidence would indicate that the entire family members of the plaintiff, including his father Balakrishnan, were residing with the testatrix during the relevant time. A look at the document, namely the Will, would clearly shows that it was the one fabricated. Ex.P.15, Will was not a registered document. It is true, the Will is the document, which does not require registration, but in the instant case, number of suspicious circumstances are attendant, which would clearly indicate that it is a forged document. It is a typed matter having the signature of the said Saraswathi Ammal, but it did not contain the name of the scribe or by whom it was typed. Two witnesses, P.Ws.2 and 3, have signed the document as attesting witnesses and both were examined before the Court. At the time of examining them, this document Ex.P.15 was not shown to them. So long as the document was not shown to them, they could not identify their signatures in the document either or they could not identify the signature of the testatrix and thus, it cannot be said that the document is said to have been proved as one expected in law. A reading of the document would clearly reveal that all heirs and the close relatives of Saraswathi Ammal were not only excluded, but there is not even reference as to their existence, which would point out the suspicion. It is pertinent to point out that even as per the evidence of P.W.1, the plaintiff, she has shown affection to all and https://hcservices.ecourts.gov.in/hcservices/ treated all relations alike. If to be so, one would naturally expect as to why such close relations were excluded, but no reference is made. 7.Added further the learned Senior Counsel that insofar as two attesting witnesses, one is close relative, namely maternal uncle and the other belonged to the native village of the plaintiff and their service has been taken for the purpose of the forged document. There was originally notice issued by the 20th defendant on 24.01.1991, which was also brought forth reply by the father of the plaintiff on 30.01.1991. The issuance of notice and the reply by his father are admitted by him. It is pertinent to point out that in the course of the reply, no reference was made to the Will. If the said Balakrishnan, the father of the plaintiff and all family members, including the plaintiff were living together with the Saraswathi Ammal during the relevant time, the execution of the Will by Saraswathi Ammal should have been within the knowledge of the said Balakrishnan. If so, he would have certainly made mentioning about the execution of the Will in the said notice, but has not done so. Conveniently, the plaintiff in the cross examination has stated that he did not know whether the execution of the Will was stated by his father in the reply. 8.Further, the learned Senior counsel would add that the name of the scribe is not found in the document and also he has not been examined and no explanation was forthcoming from the plaintiff. The subsequent conduct of the plaintiff would also point out the fact that such a document could not have come into existence at all. 4 days prior to the death of the said Saraswathi Ammal, she sent a letter to the 17th defendant and the same was written by D.W.1 and the document was also marked as Ex.D.1. D.W.1 has been examined, who has categorically deposed the fact that the lady came to his house and instructed him to write the letter and accordingly, Ex.D.1 was written on her dictation. The said letter was also produced before the Court. A reading of the same would clearly indicate that she could not have executed the Will as put forth by the plaintiff. Had the Will been executed really as put forth by the plaintiff and as found in Ex.P.15, she should have definitely referred the execution of the Will in the course of the letter Ex.D.1, but it was not done so. This would clearly indicate that such a document could not have come into existence at all. Further, in the instant case, the Will is not proved. All the suspicious circumstances attendant would go to show that such a Will could not have come into existence as put forth by the plaintiff. In support of his contentions, the learned Senior counsel for the appellant has relied on the following decisions: i)1994 MLJ 216 (M.S.P. RAJESH VS. M.S.P.RAJA AND OTHERS) ii)AIR 1955 RAJASTHAN 39 (BITHALDAS AND OTHERS VS. CHANDRATAN) iii)AIR 1959 SC 443 (VENKATACHALA IYENGAR VS B.N.THIMMAJAMMA AND OTHERS) https://hcservices.ecourts.gov.in/hcservices/ 9.Contrary to the above contentions, the learned counsel for the respondent/plaintiff would submit that the judgment of the learned Single Judge has got to be sustained, since the Court has marshalled the evidence proper, considered the same and has come to a correct conclusion; that the plaintiff/respondent has sought probate in respect of the Will executed by Saraswathi Ammal on 01.12.1989; that the learned Single Judge has granted the relief as asked for; that the same was challenged only by the 17th defendant, but no one else had challenged the proceedings; that the 17th defendant, even by operation of law, could not succeed to the property as the heir of Saraswathi Ammal and hence the total contentions pur forth by the appellant's side, challenging the document, have got to be rejected. It is not correct to state that the Will was not proved as required by law. The plaintiff approached the court by filing O.P for probate in O.P.No.621 of 1990 and it was actually ordered. The probate proceedings could not have been taken into file and the order could not have been granted without filing the original Will and thus, it would be quite clear that the original Will was in the custody of the Court all along. When the order was challenged in an appeal, the order of the learned Single Judge was set aside. It is true, the defendants have become the parties and they have filed written statements. 17th defendant, who has now challenged the judgment of the learned Single Judge, neither examined himself nor has he cross examined the witnesses. Further, he did not produce any document from his side. 10.Added further the learned counsel that so far as proof of Ex.P.15 was concerned, the plaintiff, who is the propounder, examined himself and two attesting witnesses, namely P.Ws.2 and 3, were also examined. P.Ws.2 and 3 have categorically deposed to the fact that on the date of execution of the Will on 01.12.1989, both were present at the time when Saraswathi Ammal signed the document and she was also present when both the attesting witnesses have signed the document and thus, the document has come into existence. It is true, P.W.1 was recalled later. At the time of chief examination, he has categorically deposed that the document was shown to both P.Ws.2 and 3 at the time of their examination in Court. This part of the chief examination of P.W.1 at the time of recalling was never objected to or not cross examined. Thus, it is not correct to state that the document was not shown to the witnesses. Only after showing the document to the witnesses, they have spoken about the fact. It is pertinent to point out that the signature of Saraswathi Ammal in the document was never denied by the defendants at the time of examination of any one of the witnesses. Further, in the instant case, by examining both the witnesses, the propounder has proved the execution and attestation of the document. 11.Added further the learned counsel that the contention put forth by the appellant's side that there were suspicious circumstances attended over the same have got to be thoroughly rejected. In the instant case, as could be seen from the available materials, Saraswathi Ammal had no issues and hence she has treated https://hcservices.ecourts.gov.in/hcservices/ the plaintiff as her son from the childhood. Ex.P.15, the Will, in question, was not the first document executed by her in his favour, but she has also executed a settlement deed in the year 1976, whereby a vast agricultural properties were settled by her. For a period of nearly 15 years, they have been living together and she continued the same affection with him. A reading of the settlement deed, Ex.P.2 would indicate the love and affection which she has shown to him, which impelled her to execute such a document. There is no evidence to indicate anything contra as to the relationship between them in the past 15 years till the document has come into existence in the year 1989. The law does not require that the scribe must be examined. It is true, the scribe has not been examined, but it did not mean that the Will is the forged document when both the attesting witnesses were examined. 12.The learned counsel would further add that in the instant case, the only document what was brought forth and relied on by the appellant was Ex.D.1 letter. Ex.D.1 letter, according to the appellant, is alleged to have been written 4 days prior to the death of the said lady. Now, at this juncture, no evidentiary value could be attached to the said document for the reasons that Saraswathi Ammal has not signed the document. It was also addressed to the 17th defendant. The document was not marked through him, but it was marked through D.W.1. As per the evidence of D.W.1, he was residing at Villivakkam and the lady went over to his house and the said document has come into existence. If to be so, her health was perfectly alright. Under these circumstances, why she did not sign the document remains unknown. Ex.D.1 has come into existence just 4 days prior to the death of Saraswathi Ammal on 20.08.1990, but the Will has come into existence on 01.12.1989. This document, even assuming to be true, it cannot have any reflection over the Will already executed. Even in the schedule of property, as could be found in 'A' schedule, two joint deposits were made in the name of testatrix and the plaintiff just a few months prior to the execution of Will, in question. This would be indicative of the fact that they are in good relationship during the relevant period. It is true, it is not a registered one. Merely because of non registration, it cannot be commented that the Will is the forged document. It is true, O.P. was filed in the year 1990 and only after due publication and following procedural formalities, an order came to be passed and it did not mean that it was the intention of the plaintiff to keep the defendants in darkness and to snatch the order, but it was procedurally done. Therefore, the execution and attestation of the document has been proved as per law and at no stretch of imagination, all the circumstances stated by the appellant's side could be considered as suspicious circumstances and hence the order of the learned Single Judge has got to be sustained. 13.The Court has paid its anxious consideration on the submissions made and made a scrutiny of both oral and documentary evidence adduced before the learned Single Judge. https://hcservices.ecourts.gov.in/hcservices/ 14.It is not in controversy that Saraswathi Ammal is the owner of the properties mentioned in the Will and she died on 20.08.1990. Her husband Palani Chettiar predeceased her. 'C' schedule property belonged to him, who died intestate and it devolved upon his wife. 'A' and 'B' schedule properties were acquired by the lady. The case of the plaintiff, who sought the relief, was that she executed Ex.P.15, unregistered Will, on 01.12.1989 and the same was attested by P.Ws.2 and 3 and it has got to be probated. The main defence plea was that she died intestate and all the defendants by operation of law have to succeed to the property; that one attesting witness is the close relative of the plaintiff and the other one belongs to the native village of the plaintiff and hence their service was taken to bring forth Ex.P.15, the forged document. Needless to say, the Will has got to be proved as any other document. Since the testatrix, who executed the same, will not be available at the time when it comes into force, the law would require that it must be proved strictly. In the instant case, The plaintiff, the propounder, has examined himself as P.W.1. It is not his evidence that he was present at the time when the Will was executed, but he has examined P.Ws.2 and 3, both were the attesting witnesses. A perusal of Ex.P.15 would indicate that by whom it was typed was not shown. The name of the scribe himself was not found in the document. The criticism levelled by the appellant's side that the scribe has not been examined has got to be discountenanced. The non examination of the scribe of the document, in the instant case, in the considered opinion of the Court, will not in any way affect the case for the reasons that two attesting witnesses have been examined. So far as P.Ws.2 and 3 are concerned, when their evidence is scrutinized, it would be quite clear that they were present at the time of execution of the document and also at the time when Saraswathi Ammal signed the document. Saraswathi Ammal also was present when both of them have attested the document. 15.The contention of the appellant's side is that Ex.P.15 was not shown to any of the attesting witnesses at the time of their examination and hence without showing the document, it cannot be taken that Ex.P.15 was proved. This contention, in the opinion of the Court, is replied by the respondent's side. P.W.1 was recalled later and the document was marked as Ex.P.15. He has categorically stated that the document was shown to both the witnesses at the time of examination, but this part of the chief examination was not cross examined. The evidence in this regard remains intact. In the instant case, the signature of Saraswathi Ammal in Ex.P.15 was never disputed by any one of the defendants. Now the question that would arise is whether it is shrouded with suspicious circumstances as put forth by the appellant's side. 16.It is not in controversy that the plaintiff was all along living with Saraswathi Ammal from his childhood. The first document executed by Saraswathi Ammal in favour of the plaintiff was Ex.P.2, the settlement deed, where she has settled acres of agricultural lands on him. A reading of recitals of Ex.P.2 would go to show that Saraswathi Ammal had no issues and hence she has shown more affection https://hcservices.ecourts.gov.in/hcservices/ on him and also treated him with affectionate. This would clearly indicate that even at the time when Ex.P.2 came into existence in the year 1976, she had shown all her affectionate on him. At this juncture, the contention put forth by the learned counsel for the appellant that all the heirs and close relatives, who were entitled to have the property by operation of law have been excluded, has got an answer. Even in the year 1976, when Saraswathi Ammal executed settlement deed in respect of vast agricultural lands, she had excluded all the heirs for the reasons set out by her and that she had no issues and she had got full affection of the plaintiff. The next document that came into existence is Ex.P.15, the Will. It is pertinent to point out that from 1976 when Ex.P.2 came into existence till 01.12.1989 when the Will has come into existence, in between these 13 years, there is no iota of evidence to show that she had developed any displeasure or animosity or ill-will against the plaintiff. On the contrary, it is clear from the evidence that all along the period, the plaintiff was staying with her. Apart from that, it is an admitted position that two joint deposits as found in 'A' schedule were actually made in the names of both Saraswathi Ammal and also the plaintiff. Both deposits came to be made just two months prior to Ex.P.15, the Will. Had it been true that Saraswathi Ammal was not satisfied with the conduct of the plaintiff, there was no occasion for her to make the two deposits jointly with the plaintiff as found in Ex.P.15, the Will just two months prior to the execution of Ex.P.15, the Will. 17.The other document relied on by the appellant is Ex.D.1, the letter alleged to have been written by D.W.1 on dictation of Saraswathi Ammal just 4 days prior to her death. This document for more reasons cannot have any evidentiary value. First of all, this document did not contain the signature of Saraswathi Ammal. Secondly, the document was addressed to the 17th defendant, but the 17th defendant has not gone into box to depose anything what is found in the written statement. Added further, the document was marked through D.W.1. According to him, on the said date, she came to his house at Villivakkam and gave dictation to write the document. Now, at this juncture, it is pertinent to point out that had her health been alright and she was able to go upto Villivakkam, what prevented her from making signature in the document was not made known. Apart from that, even assuming to be true that this document has come into existence 4 days prior to her death on 20.08.1990, in the considered opinion of the court, it will not have any reflection over the Will that has already been executed either, or it will not defeat what has already done by the testatrix. 18.Further, it is pertinent to point out that the defendants, though had the knowledge of settlement deed of the year 1976, had not even come forward to challenge the same and from the year 1976 till 1990, i.e. for a period of nearely 13 years, the defendants have not challenged the document. It is pertinent to point out that it is true, in the instant case, the plaintiff examined himself as P.W.1 and also examined P.Ws.2 and 3, both attesting witnesses. The https://hcservices.ecourts.gov.in/hcservices/ circumstances, which were brought forth by the learned counsel for the appellant, though appears to be suspicious circumstances, in the opinion of the Court, would not be sufficient to declare the same as invalid document. Hence all the contentions now put forth by the learned counsel for the appellant do not carry any merit. This Court is of the considered opinion that the order of the learned Single Judge has got to be sustained. Accordingly, it is sustained and the original side appeal is dismissed. No costs. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar vvk