IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.02.2008 CORAM: THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL O.S.A.No.379 of 2001 and C.M.P.Nos.2939 and 20660 of 2004 and C.M.P.No.10663 of 2006 P.Mani Alias P.Balasubramaniam ... Appellant Vs. 1.P.Viswanathan (deceased) 2.P.Vinayagam 3.Sornambal 4.V.Balasubramanian 5.V.Ganesan 6.V.Iyyappan 7.V.Palanisekar 8.V.Selvam 9.Kanniga 10.Durga ... Respondents RR3 to 10 brought on record as LRs of the deceased 1st respondent vide order of Court dated 12.02.2007 in CMP.6724/05. Prayer: Appeal filed under Order XXXVI Rule 1 of the O.S. Rules and Clause 15 of the Letters Patent Appeal against the judgment and decree of the learned Single Judge of this Court dated 24.01.2001 made in T.O.S.No.20 of 1990. For Appellant : Mr.S.Parthasarathy for Mr.V.C.Janardhanan For RR 2 : Mr.S.Sathidoss For RR 3 to 10 : M/s.C.K.Rukmani https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT M.VENUGOPAL,J. O.S.A.No.379 of 2001 is filed by the appellant/ plaintiff as against the Judgment and Decree of the learned Single Judge dated 24.01.2001 passed in T.O.S.No.20 of 1990 in dismissing the suit with costs. 2.The appellant/plaintiff has filed T.O.S.No.20 of 1990 seeking to issue a probate in respect of the Will dated 17.09.1986 executed by Alamelu Ammal. 3.After contest, the learned Single Judge has inter alia come to the conclusion that the Ex.P.1-Will dated 17.09.1986 is tainted with invalidating factors and should have come into existence under suspicious circumstances, which the plaintiff has not explained properly and held that the appellant/plaintiff thoroughly failed to prove that the said Will was executed by Alamelu Ammal and dismissed the suit with costs. Aggrieved against the judgment and decree passed by the learned Single Judge dated 24.01.2001 in T.O.S.No.20 of 1990, the plaintiff has preferred O.S.A.No.379 of 2001 as an appellant. 4.According to the learned counsel for the appellant/ plaintiff, the learned Single Judge fell into error in initially assuming that there are suspicious circumstances in regard to the Ex.P.1-Will dated 17.09.1986 and that the propounder failed to clear the same and that the learned Single Judge has lost sight of the evidence of Mr.Ravichandran, Assistant at Sub Registrar Main Office who produced the register containing the signatures of Alamelu and that the adverse inference drawn against the appellant/ plaintiff on his failure to produce the original will is not correct and there are absolutely no suspicious circumstances attending the execution of the Will and the doubt in regard to the signature of Alamelu in Ex.P.1-Will merely on the ground that in Ex.D.8 the signature is as 'Alamelu Ammal' and the reasons assigned for rejecting the evidence of P.W.2 by the learned Single Judge are not fair and proper and that the learned Single Judge was wrong in assuming that P.W.2 saw the original Will from not appreciating his evidence when he deposed that he saw the Will and that the evidence of P.W.2 is not that he saw the original Will and that per contra the learned Single Judge ought to have held that the execution of the Will was duly proved and therefore, prays for allowing the appeal. 5.The learned counsel for the appellant contends that there is clear evidence in the instant case on hand, to prove the due execution of the Will and therefore, when once the due execution is established the Court is not concerned with the manner of https://hcservices.ecourts.gov.in/hcservices/ disposition or contents thereof, which is exclusive domain of the testator. 6.The learned counsel for the appellant/plaintiff cited the decision 2006-4-L.W.-24 Dr.A.Ravikumar V. M.Savithiri and others, whereunder it is held as follows: "Will/Genuineness – Suspicious circumstance, what is – Order of trial judge rejecting application for Probate set aside – Bequest in favour of second wife and her sons (Appellant and R1, R2) upheld, as against objection by the first wife's daughter (R4) – Will which has been produced and proved is the Will prepared by carbon process, an exact copy of the other document which has been now produced – Merely because there is some omission to indicate the address of the attesting witnesses in the first page of such document, which was already executed by the executant and attested by the attesting witnesses, no suspicion can be raised against the due execution of the Will. Fact that the testator had not indicated about the execution of the Will to his sister or even to other members including the daughter, such circumstance cannot be considered as a ground to discard the Will, when execution of such Will has been proved through independent witness – Conclusion of the learned single Judge that the Will had not been executed and there is suspicious circumstance cannot be sustained". 7.He also relied on 2006-2-L.W.-658 Pentakota Satyanarayana and others V. Pentakota Seetharatnam and others, wherein it is observed as follows: "Will/Genuineness, Evidence Act (1872), Sections 68, 114(g), "Execution", what constitutes, Hindu Law/Adoption, truth and validity – Question arising in this appeal (i) is the genuineness of the Will dated 20.2.80 and (ii) validity of the factum of adoption of the 2nd respondent – Held: (i)Appellants have discharged their burden and established the genuineness of the Will and that it was executed by 'S' and was his last Will. All the witnesses deposed that they had signed as identifying witnesses and testator was in a sound disposing state of Mind. "Execution" consists in signing a document written-out, read-over and understood and to go through the formalities necessary for the validity of legal act. Signatures of the Registering Officer and of the identifying witnesses affixed to the registration https://hcservices.ecourts.gov.in/hcservices/ endorsement were sufficient attestation – Endorsement by the Sub-Registrar that the executant has acknowledged before him the execution also amounted to attestation. Presumption under Section 114 shall arise to the effect that particulars contained in the endorsement of registration were regularly and duly performed and correctly recorded. No case of undue influence, coercion or fraud is made out to negate the Will". 8.On the side of appellant/plaintiff reliance is placed on the decision 2006-4-L.W.942 Gurdev Kaur and Others V. Kaki and others, wherein it is laid down as follows: "Will/Genuineness, Presumption of legality when due execution is proved, Scope, C.P.C., Section 100 (as amended by Amendment of 1976)/ Duty of High Court in Second Appeal, "Substantial question of law", what is, Framing of the question – Contents of the Will have to be appreciated in the context of the circumstances, and not vis-a-vis the rules for intestate succession – It is only for this limited purpose that the Court examiners the nature of bequest – Court does not substitute its own opinion for what was the testator's Will or intention as manifested from a reading of the written instrument – After all, a Will is meant to be an expression of his desire and therefore, may result in disinheritance of some and grant to another. Paras 76,77,78 If a Will appears on the face of it to have been duly executed and attested in accordance with the requirements of the Statute, a presumption of due execution and attestation applies". 9.It is useful to refer to the decision AIR 1964 SC 529 Shashi Kumar Banerjee and others V. Subodh Kumar Banerjee (since deceased and after him his LRs) and others, wherein it is held as follows: "Succession Act (1925), Ss.63 and 289 – Will – Mode of proof – Onus – Principles indicated – When court would grant probate – AIR 1958 Cal 264, Reversed. The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S.63, Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is https://hcservices.ecourts.gov.in/hcservices/ sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might be other indications in the will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. AIR 1959 SC 443 and AIR 1962 SC 567, Foll". 10.In AIR 1965 SC 354 and 355 Ramchandra Rambus V. Champabai and others, it is held as follows: "In all cases in which a will is prepared under circumstances which arouse the suspicion of the Court that it does not express the mind of the testator, or that it was prepared under highly suspicious circumstances, it is for the propounder of the will to remove that suspicion. AIR 1929 PC 45, Reiterated (Para https://hcservices.ecourts.gov.in/hcservices/ 6) Where it appears that the propounder has taken a prominent part in the execution of the will which confers substantial benefits on him, that itself is generally treated as a suspicious circumstance attending the execution of the will". Further, in the aforesaid decision at page 354 and 355 it is laid down as follows: "(b) Evidence Act (1872), Ss 5 and 118 - Credibility of witnesses – It is open to court to look into surrounding circumstances. In order to judge the credibility of the witnesses, the Court is not confined only to the way in which the witnesses have deposed or to the demeanour of witnesses, but it is open to it to look into the surrounding circumstances as well as the probabilities, so that it may be able to form a correct idea of the trustworthiness of the witnesses. The issue, namely, whether the testator did execute a will and if he did, then whether it was duly attested by the witnesses, cannot be determined by considering the evidence adduced in the Court separately from the surrounding circumstances which have also been brought out in the evidence, or which appear from the nature and contents of the document itself. 22 Ind App 12 (23) (PC) Expl". 11.It is not out of place to cite the decision AIR 1982 SC 133 Smt.Indu Bala Bose and others V. Manindra Chandra Bose and another, whereby it is held as follows: "The mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a will by S.63 of the Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be https://hcservices.ecourts.gov.in/hcservices/ other indications in the will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. Any and every circumstance is not a 'suspicious' circumstance. A circumstance would be 'suspicious' when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. AIR 1964 SC 529, AIR 1959 SC 443, AIR 1962 SC 567, AIR 1950 PC 90, AIR 1950 FC 21 and AIR 1946 PC 156.Rel. On". 12.In AIR 1962 Supreme Court 567 Rani Purnima Debi and another V. Kumar Khagendra Narayan Deb and another, it is observed as follows: "Succession Act (1925), S.63 Will – Execution – Genuineness – Testator not making proper provision for his wife and sister depending on him – Propounder getting sole benefit under the will subject to maintenance of testator's wife and sister – Propounder taking part in execution of will – Signature of testator not appearing to be his usual signature – Testator in habit of signing blank papers – Signature of testator not in same ink and not with same pen with which body of will was written – Held propounder was required to satisfactorily explain suspicious circumstances before he could get letters of administration – Witnesses examined in Court being interested – Evidence given by them not sufficient to dispel suspicion as to due execution and attestation of will – Application for registration of will given by agent of testator for registration on commission – Sub- registrar sending his clerk to execute the commission – Nothing on record to show that will was read over to testator before he admitted execution of the will – Exact words used by the clerk and exact reply of testator absent from evidence – Held that broad statement of the clerk that he examined the testator who admitted execution of the will was not sufficient to dispel serious suspicion attaching to due execution and attestation of the will – Held that even https://hcservices.ecourts.gov.in/hcservices/ registration of the will was not sufficient to remove the suspicion – Held that as the propounder was unable to dispel the suspicious circumstances which surrounded the execution and attestation of this will, in the circumstances, no letters of administration in his favour could be granted on the basis of it. AIR 1959 SC 443, Rel. on". 13.In AIR 1959 Supreme Court 443 H.Venkatachala Iyengar V. B.N.Thimmajamma and others, it is held as follows: "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, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under S. 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 Ss. 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, Ss.59 and 63 of the Indian Succession Act are also relevant. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S.63 of the Indian Succession Act. As in 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 to be applied would be the usual test of the satisfaction of the prudent mind in such matters". 14.P.W.1-Mani, (plaintiff/appellant) in his evidence has deposed that his deceased mother Alamelu Ammal executed a registered Will dated 17.09.1986 and that his mother expired on 26.10.1988 and after 10 days he had seen the original Will and thereafter, it was missing and therefore, he is filing the registration copy of the Will-Ex.P.1 and Ex.P.2 is the paper https://hcservices.ecourts.gov.in/hcservices/ publication in regard to the missing of the original Will and that his last brother Muthusamy died on 09.01.80 and his deceased brother share, to be inherited by his mother was bequeathed in the Will and his mother also filed a suit in C.S.No.353 of 1987 and the same was numbered as O.S.No.12852 of 1986 on the file of 4th Assistant Judge, City Civil Court and he is the plaintiff in that suit also and there was already a mortgage on this property and it was cleared by his another brother Vinayagam through Court, who is second defendant in the suit and his mother living with him in 1988. 15.It is the further evidence of P.W.1-Mani that his mother was in a sound and disposing state of mind till her death and that he was given 9 acres 55 cents in Elichur Village, which covered both wet and dry land and are irrigated by tank, which he has given it on lease and that he got married in the year 1996 and before that he had connection with some other woman by name, Kanniammal and through had a son named Anand and that some 15 days prior to his mother's death, she was admitted in the Government Hospital and also in the Private Hospital and that the death intimation of his mother was informed to D.1 through some other person and he performed the last rites of his mother, who was living with him. 16.The specific evidence of P.W.1-Mani is that after the demise of his mother, at the time of 8th day ceremony only he came to know about the Will executed by her and when his sisters removed the sarees from the box, they took out the Will and they gave that to Vinayagamurthi and he has mentioned about this to his counsel but he does not know whether there is a reference in the plaint about the information given by his sisters in regard to the Will and six sisters were present at the time of 8th day ceremony and the Will was a typed one and his mother signature was also there and he does not know there was any recital in the document to show who had typed it and Munusamy Naidu, Rajendran and Palani attested the Will and that he has working as Conductor in the Transport Corporation in Anna Nagar Depot and that Rajendran is now working as Checking Inspector and the attestor Palani is his friend and the other attestor is only Kuppusamy and not Munusamy Naidu and he is residing opposite to his house Villivakkam and that his mother knew all the three attestors and they also knew about his mother's family and that it is not correct to say that his mother is not capable of going alone and executing a Will. 17.According to the evidence of P.W.1-Mani, the Will was taken out from the Box and it was given to him and that original was kept only in the Villivakkam house and that Will was registered in Ambattur Office and he does not know about who took his mother to the Sub Registrar Office and he did not enquire the https://hcservices.ecourts.gov.in/hcservices/ attestors who gave instructions for execution of the Will and he does not know in which place the Will was written and he does not know who gave the recitals to the Will and that the Will was signed by Alamelu Ammal and that the original Will was shown to his sisters but not to his brothers and there is no specific reason for not informing to his brothers. 18.P.W.1-Mani in his cross examination has specifically stated that in Ex.P.1-Will, the signature of his mother is seen as "Alameluammal" and he deny the suggestion that the Will was not executed by his mother and that he had noted the details of the Will in a small notebook paper which is not available now and it is not true to say that he only typed the certified copy of the Will-Ex.P.1 and got it signed by the Office and the signatures found in Ex.C.1 and D.1 to D.4 are one and the same an it is not true to say that he forged the signature of his mother and only to grab at the property, he created the Will. 19.P.W.2-Kuppusamy in his evidence has stated that the plaintiff's house is opposite to his house and the plaintiff's mother requested him to attest the Will and she also requested him to come to the Sub Registrar's Office and himself and Rajendran have signed as attesting witnesses and that they went to the Sub Registrar's office at about 11.30 a.m. but the registration was done around 2.30 p.m. and that the plaintiff did not come with him to the Sub Registrar's office and two years after the registration of the Will Alamelu Ammal died and that he has attested as a first attesting witness in the Will, original of Ex.C.1, before the Sub Registrar's Office, Ambattur. 20.In his cross examination P.W.2-Kuppusamy has deposed that Alamelu Ammal has not discussed with him, her family matters and he does not remember the day on which Will was executed and the alleged Will was executed on 17.09.1986 and he went to Alamelu's house at 10.00 a.m., when she asked him to come at 10.30 a.m., when he was going out and when he went to her house, the plaintiff's mother, Rajendran and Palani were present and when he went to her house, the Will was in typed form and he was not informed as to who drafted the Will and it was typed and the Will was written in Tamil, containing two pages, on green papers and that the plaintiff's mother read out the Will and since he asked for clarification, Rajendran also read out the Will for second time and that