BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13-04-2010 CORAM : THE HONOURABLE MR. JUSTICE B. RAJENDRAN A.S. No. 784 of 1991 Ramachandra Marthandam .. Appellant/Defendant Versus 1. Linga Vijayan 2. Jagaveerapandian (died) 3. Jaya 4. Puvan Panneerselvam 5. Dharsan Ranganathan (Minor) (Respondents 3 to 5 were brought on record as legal heirs of the deceased 2nd respondent as per Order dated 21.02.2007 made in MP No.1 of 2006 in A.S. No. 784 of 1991) .. Respondents/Plaintiffs (Minor 5th respondent rep. by Guardian Next friend & Mother 3rd respondent) Appeal under Section 96 of C.P.C. against the Judgment and Decree dated 08.01.1991 made in O.S. No. 301 of 1989 on the file of Principal Subordinate Judge, Tirunelveli. For Appellant : Mr. T.R. Rajaraman For Respondents : Mr. S. Meenakshi Sundaram JUDGMENT The defendant in O.S. No. 301 of 1989 on the file of Principal Subordinate Judge, Tirunelveli is the appellant in this appeal. The said suit was filed by the respondents 1 and 2 herein for partition and separate possession of the 1/4th share in the schedule mentioned properties in the plaint by metes and bounds. The suit was decreed by passing a preliminary decree. 2. For the sake of convenience, the parties shall be referred to as they were arrayed in the suit. 3. The facts that led to filing of the plaint was that the suit property originally belonged to one Mary Fernando. The said Mary Fernando sold the suit property through her power of attorney Innasi Fernando in favour of the defendant and mother of the plaintiffs namely Pushpam Ammal by a registered sale deed dated 26.11.1971 and https://hcservices.ecourts.gov.in/hcservices/ from the date of such purchase, the defendant and mother of the plaintiffs were in peaceful possession and enjoyment of the suit property. While so, the said Pushpam Ammal, mother of the plaintiffs and Thavamani Nadar, husband of Pushpam Ammal and father of the plaintiffs, have jointly executed a registered Will dated 26.03.1985 bequeathing all the properties belonged to them, including the schedule mentioned property in the suit, to the plaintiffs. According to the plaintiffs, the executants namely Pushpam Ammal and Thavamani Nadar have executed the Will in a sound and disposing state of mind without coercion or undue influence. After the death of the said Pushpam Ammal, the plaintiffs have claimed their share of the property as they are the legatees and beneficiaries under the Will. According to the plaintiffs, under Law, they have taken joint possession of the suit property along with the defendant. They would contend that the plaintiffs and defendant are joint owners of the property. As the defendant started making disturbances in regard to joint possession, according to the plaintiffs, it is no longer possible to enjoy the property jointly, hence, they have filed the suit claiming partition and separate possession of the schedule mentioned property. 4. The defendant filed written statement contending that the plaintiffs are none other than his brothers-in-law. It is true that the property stands in the name of the defendant and the mother of the Plaintiffs Pushpammal, but it is he who paid the entire sale consideration and Pushpammal was only a name lender. This fact has been suppressed by the plaintiffs. Ever since the purchase of the suit property, this defendant was in possession of the property absolutely without any interruption from any one. Even the patta in respect of the property stood transferred in the name of the defendant. It was he who dug the well in the suit property by incurring a sum of Rs.30,000/-. He would also claim that he prescribed his title by ouster. He would mainly contend that Pushpammal was seriously ill for a long period of three years and she was affected by Cancer. She was not in a good state of mind. The defendant denied the Will is not a genuine one. According to the defendant, when Pushpammal was ill and bedridden for a period of three years and she was very week bodily and mentally, during that period, the plaintiffs, being her sons and residing along with her, took advantage of her illness and obtained the Will in dispute. The suit itself is premature as the plaintiffs cannot claim the suit property under the Will inasmuch the Will was executed jointly by Pushpammal and Thavamani Nadar and Thavamani Nadar is still alive. It was specifically contended by the defendant that the property was never in joint possession of the plaintiffs and the defendant and that he alone has dug the well by spending Rs.30,000/-. 5. The defendant has filed an additional written statement contending that the suit is bad for non-joinder of parties namely Thavamani Nadar, who is the joint executant of the Will and is still alive and also for non-joinder of Jhansi, daughter of the deceased Pushpammal. In view of non-joinder of Thavamani Nadar and Jhansi, especially in a suit for partition, the suit has to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 6. The Plaintiffs have filed reply statement contending that neither Thavamani Nadar or Jhansi are necessary party to the suit as they did not get any property or benefit under the Will. 7. Based on the above pleadings, the trial court framed five issues namely (i) Whether the defendant paid the entire sale consideration for purchasing the suit property (ii) Whether the defendant has made any improvement in the suit property especially by dugging a well by spending Rs.30,000/- (iii) whether Pushpammal executd the Will while she was in a sound and disposing state of mind (iv) Whether the suit is premature (v) whether the plaintiffs are entitled to 1/4th share in the suit property as prayed for. 8. An additional issue was framed by the court below as to (i) whether the suit is bad for non-joinder of necessary parties (ii) whether the parties are in possession of the suit property jointly and (iii) whether the defendant ousted the right of the plaintiffs. 9. Before the court below, on behalf of the plaintiffs, PWs 1 to 4 were examined and Exs. A1 to A16 were marked. On behalf of the defendant, the defendant examined himself as DW1 and marked Exs. B1 to B7. The trial court, taking into consideration of the evidence on record came to the conclusion that the suit is liable to be decreed. Accordingly, the court below passed a preliminary decree for partition of the suit property. Aggrieved by the same, the present appeal has been filed. 10. The learned counsel for the appellant has filed a memo in the above appeal stating that the respondents 3 to 5 were brought on record as Legal heirs of deceased 2nd respondent and at that time, the respondents 4 and 5 were minors and represented by their natural guardian mother, the third respondent herein. Now, the 4th respondent namely Puvan Paneerselvam has attained majority and hence, he may be declared as major and his guardian may be discharged from her guardianship. Recording the memo filed by the appellant, the fourth respondent is declared as major and his guardian namely the third respondent is discharged from her guardianship. 11. The point for consideration in this appeal, as argued by the counsel for both sides are (i) whether the Will has been executed by Pushpammal and Thavamani Nadar and such execution has been proved in accordance with law and (ii) whether the plaintiffs are entitled for partition on the basis of the Will. 12. Heard the counsel for both sides. The case of the plaintiffs is that the properties was jointly purchased by their mother Pushpammal and defendant and thereafter the property was jointly enjoyed by the plaintiffs and the defendant. The patta originally stood in the name of Pushpammal and later on it was transferred in the name of the defendant. It is also the case of the plaintiffs that Pushpamal executed the Will, which was registered on 26.03.1985 by which the plaintiffs, who are her sons, were allotted various properties, including the suit property and each of them are entitled to 1/4th share of the property in the suit property, as their mother is owning only half share in the suit property. It is https://hcservices.ecourts.gov.in/hcservices/ recited in the Will that apart from the plaintiffs, one Jhansi, daughter was born to Pushpammal and Thavamani Nadar, she was given in marriage by incurring expenses and therefore she need not be given any property. Therefore, according to the plaintiffs all the properties mentinoed in the Will devolve on them for their exclusive enjoyment. 13. The defendant would contend that the execution of the Will is denied as his mother in law namely Pushpam Ammal was suffering from cancer for a long time and therefore, she was not be in a sound and disposing state of mind to execute the Will. The plaintiffs, being the sons of Pushpam Ammal and living with her, have taken advantage of her illness and created the Will. Therefore, according to the defendant, there is a cloud in the Will. Under those circumstances, when the plaintiffs relies on the Will, it is they who have to prove the execution of the same in accordance with law. 14. In this context, it is necessary to look into Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act, which are as follows:- "63. Execution of unprivileged Wills – Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:- (a) The testor shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall ap-pear that it was intended thereby to give effect to the writing as a Will (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator, a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. 68. Proof where no attesting witness found:-- If no such attesting witness can be found, or if the document purports to have been executed in the united Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. https://hcservices.ecourts.gov.in/hcservices/ 15. The second plaintiff Jegaveera Pandian was examined as PW1 before the Court, who in his evidence has stated that he does not know anything about the Will as he was not present at the time of execution of the Will. He further deposed that the property was purchased when he was 6 or 7 year old. Further it was deposed that the Will was executed by her mother while she was in a sound and disposing state of mind and that the Will was a registered Will. He further stated that he does not know anything directly about the execution of the Will and he was given the copy of the Will only after execution of the same. Therefore, PW2 was examined, who is the attestor of the Will. PW2 in his chief examinatin would only say this much:- vdf;F bjw;F cld;gpwg;g[/ thjpapd; jfg;gdhh; vdf;F bghpag;gh kfd;/ g[c&;gk; mk;khs; vd;Dila mz;zd; kidtp/ jtkzp ehlhUk; mtUila kidtpa[k; nrh;e;J xU capy; vGjp itj;jJ vdf;F bjhpa[k;/ mth;fs; Ie;J tUl';fSf;F Kd;g[ vGjp itj;jhh;fs;/ mjpy; ehd; rhl;rp ifbahg;gk; bra;jpUf;fpnwd;/ capy; vGjpa jpdj;jd;W ehd; cld; brd;wpUf;fpnwd;/ ,e;j capy; Fk;Konfhl;il gj;jpu mYtyfj;jpy; itj;J vGjg;gl;lJ/ ,e;j capy; gj;jpu Mgprpy; itj;J vGjpa gpd;dh; thrpj;J fhz;gpf;fg;gl;lJ/ thrpj;J fhz;gpj;jt[ld; jtkzp ehlhUk;. g[c&;gk; mk;khSk; rhp vd;W brhd;dhh;fs;/ mth;fs; ifbaGj;Jr; bra;jij ehd; ghh;j;njd;/ ehd; gj;jpu Mgprpy; gjpt[f;Fk; ehd; cld; ,Ue;njd;/ md;W g[c&;gk; mk;khs; ey;y Rfj;Jld; ,Ue;jhh;/ mth;fis ahUk; capy; vGj ahUk; J}z;ltpy;iy/ vd;idj; jtpu capypy; uhkr;re;jpud; vd;gtUk; rhl;rp ifbahg;gk; bra;jhh;/ 16. In the chief examination, PW2, attestor of the Will, would only say that he is one of the attestors to the Will; that the Will has been executed five years prior to his giving evidence; it was executed in the registrar office; it was read over to the executants Thavamani Nadar and Pushpam Ammal and they have accepted the same. As far as the attestation is concerned, he would say that he saw the executants signing the Will and that he was with them at the time of execution of the Will. He would also say that the executants were in a sound and disposing state of mind at the time of execution of the Will and nobody compelled or coerced them to write the Will. He would further depose that apart from him, one Ramachandran was one of the attesting witnesses to the Will. 17. According to the defendant, the evidence of the PW2 is not clear and correct one for he did not say that neither the executants saw the attesting witnesses signing nor the attesting witnesses have seen the executors signing the Will, which is one of the mandatory legal requirements to prove the Will. Therefore, accoding to the defendant, the Will was not proved as per the Indian Succession Act and Indian Evidence Act. Further, in the cross-examination, PW2 stated that he does not exactly remember the date, month and year of the execution of the Will but he would only say that it was executed five years prior to his giving evidence. Even in the cross- examination, it was stated that Thavamani Nadar has not seen Pushpam Ammal signing the Will. In the cross-examination of PW2, it was also brought out that Ramachandran, the other attesting witnesses to the Will is residing in the same Village, but he was not examined as a witness. Therefore, according to the defendant, the witnesses https://hcservices.ecourts.gov.in/hcservices/ examined on behalf of the plaintiffs have not clearly adduced evidence to prove the proper execution of the Will as contemplated under Section 63 of the Indian Succession Act. 18. PW3 was examined before the court below to say that the property was in possession of the plaintiffs and defendant jointly. 19. PW4, Thavamani Nadar is husband of Pushpam Ammal and also one of the executants of the Will. In his evidence, PW4 would depose that he and his wife have jointly executed the Will and at that time, his wife was in a sound and disposing state of mind even though she was suffering from cancer at that time. He also deposed that he saw his wife signing the Will and he and his wife jointly gave instruction to fill up the Will and after his demise and the demise of his wife only, the children are entitled to get the benefits under the Will. No where in the chief examination, he has stated anything about the attestor signing the Will or he saw the attestor signing the Will. In the cross-examination, it was stated that the original title deeds of the suit property are with the defendant. In the property, patta stood in the name of both the defendant and his wife Pushpammal, later on his wife's name was removed and even kist is being paid by the defendant in his name. The Will was attested by two attesting witnesses, but PW4 has not stated anything that the attesting witnesses signed the Will or he and his wife saw the attesting witnesses signing the Will. 20. On the side of the defendant, DW1 alone was examined. He would depose that Pushpammal was not in a sound and disposing state of mind at the time of execution of the Will and he was in possession of the property exclusively. Further, he only paid the entire sale consideration to purchase the suit property and therefore the plaintiffs cannot make any claim in the suit property. 21. The legal question which arise in this case is whether the Will has been properly proved by legally acceptable evidence. In this context, the learned counsel for both sides have strenuously made efforts to bring in various decisions rendered by the Honourable Supreme Court as well as this Court in support of their respective contentions. 22. The learned counsel for the defendant/appellant would contend that the Will has not at all been proved in accordance with law, therefore, once the Will has not been proved, the suit has to be dismissed as the whole case is only on the basis of the Will. He would contend that though both the alleged attesting witnesses are alive, only one witness namely Ramakani, PW2 was examined and the other witnesses namely Ramachandran was not examined before the Court. Even in his evidence, Pw2 did not say that the testators have seen the attesting witnesses signing the Will. PW4, Thavamani Nadar, husband and also co-executant of the Will also did not say that both the executors have seen the attesting witnesses signing the Will. Hence, the plaintiffs have failed to prove the due execution of the Will and therefore the suit has to be dismissed. In this context, https://hcservices.ecourts.gov.in/hcservices/ the learned counsel for the defendant/appellant relied on the decision of the three Judges of Honourable Supreme Court reported in (Girja Datt Singh vs. Gangotri Datt Singh) AIR 1955 SC 346 wherein in Para Nos. 14 and 15, it was held as follows:- 14. It still remains to consider whether the attestation of the signature of the deceased on the will, Ex. A-36 was in accordance with the requirements of Section 63 of the Indian Succession Act. Section 63 prescribes that: “(c) The will shall be attested by two or more witnesses, each 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 by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator....” In order to prove the due attestation of the will Ex. A.36 Gangotri would have to prove that Uma Dutt Singh and Badri Singh saw the deceased sign the will and they themselves signed the same in the presence of the deceased. The evidence of Uma Dutt Singh and Badri Singh is not such as to carry conviction in the mind of the court that they saw the deceased sign the will and each of them appended his signature to the will in the presence of the deceased. They have been demonstrated to be witnesses who had no regard for truth and were ready and willing to oblige Gur Charan Lal in transferring the venue of the execution and attestation of the documents Ex. A- 23 and Ex. A-36 from Gonda to Tarabganj for reasons best known to themselves. If no reliance could thus be placed upon their oral testimony, where would be the assurance that they actually saw the deceased execute the will in their presence and each of them signed the will in the presence of the deceased. It may as well be that the signature of the deceased on the will was appended at one time, the deceased being there all alone by himself and the attestations were made by Uma Dutt Singh and Badri Singh at another time without having seen the deceased sign the will or when the deceased was not present when they appended their signatures thereto in token of attestation. We have no satisfactory evidence before us to enable us to come to the conclusion that the will was duly attested by Uma Dutt Singh and Badri Singh and we are therefore unable to hold that the will Ex. A-36 is proved to have been duly executed and attested. (emphasis supplied) 15. When this position was realised the learned counsel for Gangotri fell back on an https://hcservices.ecourts.gov.in/hcservices/ alternative argument and it was that the deceased admitted execution and completion of the will Ex. A-36 and acknowledged his signature thereto before the Sub-Registrar at Tarabganj and this acknowledgment of his signature was in the presence of the two persons who identified him before the Sub-Registrar viz. Mahadeo Pershad and Nageshur who had in their turn appended their signatures at the foot of the endorsement by the Sub-Registrar. These signatures it was contended were enough to prove the due attestation of the will Ex. A-36. This argument would have availed Gangotri if Mahadeo Pershad and Nageshur had appended their signatures at the foot of the endorsement of registration animo attestandi. But even apart from this circumstance it is significant that neither Mahadeo Pershad nor Nageshur was called as a witness to depose to the fact of such attestation if any. One could not presume from the mere signatures of Mahadeo Pershad and Nageshur appearing at the foot of the endorsement of registration that they had appended their signatures to the document as attesting witnesses or can be construed to have done so in their capacity as attesting witnesses. Section 68 of the Indian Evidence Act requires an attesting witness to be called as a witness to prove the due execution and attestation of the will. This provision should have been complied with in order that Mahadeo Pershad and Nageshur be treated as attesting witnesses. This line of argument therefore cannot help Gangotri. 23. Pointing out the above decision, the learned counsel for the defendant/ appellant would contend that in order to prove the due attestation of the will the plaintiffs are bound to prove that the attesting witnesses saw the executants signing the Will and they have signed the Will in the presence of the executants, which is absent in this case. 24. The learned counsel for the defendant also relied on the decision of three Judges decision of the Honourable Supreme Court reported in (H. Venkatachala Iyengar vs. B.N. Thimmajamma and others) AIR 1959 SC 443 wherein inPara No.18 it was held as follows:- "18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are https://hcservices.ecourts.gov.in/hcservices/ relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59