S.S. Subramani, J.@mdashSecond defendant in O.S. No. 966 of 1981, on the file of III Additional District Munsif''s Court, Coimbatore is the
appellant. Plaintiff herein filed the suit to declare her title to the suit property, for execution of a conveyance, conveying or transferring, as the case
may be, the house described in Schedule A in favour of the plaintiff, and for directing payment of the share perquisites and belonging described in
Schedule B by first defendant to plaintiff, and for other consequential reliefs.
2. The appellant''s husband M.V. Nataraj Chettiar died on 30.7.1974. The suit house property described in Schedule A was allotted to Nataraj
Chettiar under a Scheme of purchase on instalment basis by first de-fendant-Society. His membership number was 439. At the time of allotment,
the cost of the house was fixed at Rs. 4, 123.63. The said amount was to be paid in monthly instalments spread over for a period of 35 years.
Nataraj Chettiar had no issues and he took a special interest in the plaintiff and was bringing up her as a foster daughter from her infancy. It is the
case of the plaintiff that from the 15th day of her birth, she was brought up by late Nataraj Chettiar. Second defendant was also very much fond of
the plaintiff. It was Nataraj Chettiar and the second defendant was brought her up and educated her, and when she grow up, she lived with her
parents since they were residing nearer to her school, and now she is employed. Thereafter also, she continued her visits to late Nataraj Chettiar
and his wife, second defendant. While so, he executed a registered will on 22.4.1974 bequeathing the plaint property to her, reserving a right of
en-joyment to the appellant during her lifetime. There is also a specific clause prohibiting the appellant from alienating the property, and in the case
of any contra-vention, the document will be inoperative and ineffectual. According to plaintiff, the testator has stated in the will that in the event of
his dying without paying the instalments in full to the first defendant-Soci-ety towards the purchase price of the suit house and without taking a sale
deed in his name, then the plaintiff should pay the same to the first defendant and obtain a sale deed from the Society. If any dues were payable by
the Society to the testator, that was also bequeathed to the plaintiff. It is said that till 1979, the appellant was living very cordially with the plaintiff.
But, after the payment was made in full the second defendant was to get the sale deed in her name, and because of that, the relationship became
strained. Due to misunderstanding, plaintiff had to send registered notice both to the first defendant and second defendant about her rights over the
property and wanted the sale deed to be executed in her favour. Plaintiff further published a notice in local daily about her right over the property.
The appellant sent a reply denying the entire story put forward by the plaintiff and said that even if there was such a will, it could have concocted or
would have been brought about at the instance of the plaintiff and her relations, by de-frauding the deceased. Therefore, plaintiff filed the suit for
declaration and other consequential reliefs as stated above.
3. In the written statement filed by the first defendant, it was contended that on the death of her husband, second defendant applied for substitution
of her name in the place of her husband, and accordingly her name was substituted and the house was allotted to her. After the transfer, the
appellant was paying the dues regu-larly and she paid the entire instalments and wanted a conveyance in her favour. When she applied for
conveyance, plaintiff came forward with a will alleged to have been executed by the deceased. The first defendant-Society further contended that it
is an unnecessary party to the suit and, therefore, prayed for dis-missal of the suit.
4. In the written statement filed by the second defendant, appellant herein, she denied the will. According to her, the alleged will is not true and
valid. She has further said that the plaintiff was never a foster child, and she was never treated as such, either by the appellant, or by her husband
(deceased Nataraj Chettiar). She was also not brought up by them. Except for the fact that for a few years, they were neighbours, they had no
other relationship, and any affection to the child cannot be construed as a relationship as a foster child and foster parents. It was further contended
that the deceased was not well for about a year, and he was physically incapable of moving about. The appellant was doing some petty busi-ness
and from the little earnings which she could get from that source, she was paying the instalments. According to her, she and her husband were in
cor-dial terms till his death, and the plaintiff was not seen during the last days of the deceased. There is no question of executing a will disinhering
his own wife or giving her only a life interest. There was no necessity for executing a will at all, for, the appellant alone was the legal heir.
Moreover, according to second defendant, any act done by her husband would come to her knowledge, and the document Ex. A-15 is nothing
but a forgery. She has also mentioned various suspicious circumstances under which the document might have come into existence.
5. The trial Court, after taking elaborate evidence, came to the conclusion that the plaintiff is not entitled to any relief, and the will is not genuine.
The trial Court further came to the conclusion that the will might have come into existence only through the father of the plaintiff who was examined
as P.W. 7. According to the trial Court, the various suspicious circumstances surrounding the execution of the will were not dispelled by the
plaintiff. Ultimately the suit was dismissed.
6. The matter was taken in appeal by the plaintiff. Before the lower appellate Court, some additional evidence and also on the basis of the
evidence that was already on record, the lower appellate Court came to a different conclusion. The suit was decreed, by allowing the appeal. It is
against the said judgment, second defendant has preferred this Second Appeal.
7. At the! time of admission of the Second Appeal, the following substantial question of law was raised for consideration:
Whether, on the facts and circumstances of the case, the disputed will has been proved to be genuine and duly executed when the testator was in a
sound disposing state of mind?
8. As held in Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135 decision on due execution of will, strictly speaking, is not primarily arriving at a
finding of fact, as it has an admixture of law due to the specific requirements of Section 63 of the Indian Succession Act, 1925 towards due
execution''. In that case, in paragraph 4, their Lordships further held thus:
... A method is proceeded (sic provided) in which a will shall be duly executed. In inter alia provides that the will shall he 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, but it shall not be necessary that more than one witness be
present at the same time, and no par-ticular form of attestation shall be necessary. In the matter of proof of a will Section 68 of the Indian Evidence
Act, 1872 enjoins that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been
called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving
evidence. Proviso thereto states that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will,
which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it
purports to have been executed is specifically denied.
It was further held in Bachan Kaur v. Bhagwan Kaur (1995) 3 S.C.C. (Supp.) 401 that ''proof of will is not a pure question of fact but a mixed
question of fact and law. ''
9. In Kartar Kaur and Another Vs. Milkho and Others, their Lordships followed a decision of the Privy Coun-cil reported in Bindeshri Prasad v.
Baisakha Bibi AIR 1920 P.C. 70 : 61 I.C. 431 wherein it was held that ''in a suit by heirs of a deceased person to declare that the alleged will of
the deceased whereby they are deprived of the succession of his estate, is a forg-ery, the burden of establishing without reasonable doubt that the
Will propounded is of the deceased is upon those propounding the Will''. (Italics supplied.)
10. Regarding appreciation of evidence, in Ramchandra Rambux Vs. Champabai and Others, it was held thus:
In order to judge the credibility of attesting wit-nesses to a will, 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 wit-nesses. This issue cannot be determined by considering the evidence adduced in the Court sepa-
rately 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.
11. In Kalyan Singh Vs. Smt. Chhoti and Others, their Lordships considered a similar question and held thus:
A will is one of the most solemn documents known to law. The executant of the will cannot be called to deny the execution or to explain the
circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the
court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity of the will cannot be
determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth
from falsehood the court is not confined only to their testimony and demeanour. It would be open to the Court to consider circumstances brought
out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into
surrounding circumstances as well as inherent improbabilities of the case to reach of proper conclusion on the nature of the evidence adduced by
the party.
12. In Major Singh Vs. Rattan Singh (Dead) by LRs. and others, their Lordships considered the scope of Section 100, C.P.C., and it was held
that the High Court was entitled to go into the question as to the reasons given by the Courts below as valid reasons for discarding the evidence of
the attestors. In that case, concurrent judgment of the Courts below was upset by the High Court. In that case, the evidence of the attestors was
disbelieved by the trial Court as well as the lower appellate Court. But when the matter came before the High court, their Lordships did not accept
the reasons for disbelieving their evidence. Their Lordships said in that case that ''when the courts below had rejected and disbelieved the evidence
on the ground that the propounder had not properly discharged his duty, it is the duty of the High Court to consider whether the reasons given by
the Courts below were sustainable in law'' (Italis supplied). On the basis of this decision, it cannot be contended for a moment that this Court is not
entitled to consider the evidence. While considering the evidence, this Court will have to decide whether the execution of will is properly proved
which, according to the decisions cited ear-lier, is either question of law or a mixed question of law and fact.
13. In Parsini (dead) through L. Rs. v. Atma Ram and Ors. (1996) 3 Sup 261 it was held that the bur-den is on the propounder of the will to
remove all the doubts regarding the genuineness of the will.
(Italics supplied)
14. It is true, the purpose of executing a will under normal circumstances is to provide a different line of succession from the one provided under
the Statute. But at the same time, persons, who are entitled,to succeed if there is no will, can expect that there must be some reason for the testator
disinheriting them. In the decision reported in Ram Piari Vs. Bhagwant and others, it was held thus:
Although freedom to bequeath one''s own property amongst Hindus is absolute both in extent and person, including rank stranger, yet to have
testamentary capacity or a disposing state of mind what is required of propounder to establish is that the testator at the time of disposition knew
and understood the property he was disposing and persons who were to be beneficiaries of his dis-position. Prudence, however, requires reason
for denying benefit to those who too were entitled to bounty of testator as they had similar claims on him. Absence of it may not invalidate a will
but it shrouds the disposition with suspicion as it does not given any inkling to the mind of testator to enable the court to judge if the disposition was
a voluntary act. Even though it cannot be said to be hard and fast rule yet when disinheritance is amongst heirs of equal degree and no reason for
exclusion is disclosed, then the standard of scrutiny is not the same and if the courts below failed to be alive to it as is clear from their orders than
their orders cannot be said to be beyond review....
(Italics supplied)
15. The manner of proving a will is provided under See. 63 of the Indian Succession Act. A will must have two attestors, and atleast one of the
attestors must be examined to prove the due execution of the will. If there are suspicious circumstances, it is the duty of the person who relies on
the will, to remove the sus-picions as well. ''Suspicious circumstance'' has been defined in the decision of the Supreme Court reported in Smt. Indu
Bala Bose and Others Vs. Manindra Chandra Bose and Another, wherein it has been held that ''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.
16. In the light of the settled legal position mentioned above, let us see whether Ex. A-15 has been proved in accordance with law.
17. Before discussing the evidence, the admitted facts are, that the plaintiff is in no way related to the deceased, though claims that the parties
belong to the same ''Kulam'' (community). She also says that she was brought up by the deceased and the appellant from the 15th day of her birth.
But this is denied by the appellant (second defendant). It is in evidence that apart from the widow (second defendant), the deceased has left behind
him his brothers and their children. It is also admitted that the deceased was having a sister. The widow, as per the alleged will, has been given only
a right of enjoyment, and she is prohibited from alienating the property in any man-ner. Absolute ownership is given to the plaintiff, a person not
related to the family. The schedule property is the only asset belonging to the deceased. It is also in evidence that the deceased was comparative
poorer than the plaintiff and her father financially. The admitted case is, the deceased was a person who knows to read and write, and the
appellant is an illiterate.
18. Ex. A-15 is the will dated 22.4.1974, and it has also been registered on the same day. The will is attempted to be proved by the evidence of
P. Ws. 2 and 3, who claim to be the attestors of the will. P.W. I is the plaintiff. P.W. 2 is none other than the brother-in-law of the plaintiff who
happens to be the first son-in-law in the family of P.W. 7, her father. P. Ws. 3 and 7 are co-brothers, P.W. 3 having married the sister of P.W. 7''s
wife. Both the attestors are related to plaintiff and her father (P.W. 7). It is in evidence that P.W. 7 engaged the document writer, and it was at his
instance the will was prepared. The document was prepared in his house. Both the attestors were also asked to sign at the instance of P.W. 7. This
is spoken to by both P. Ws. 2 and 3 and admitted by P.W. 7 also. Like-wise, the document writer who was examined as P.W. 4 has also
admitted that it was P.W. 7 who asked him to prepare the will at his residence. According to him, late Nataraj Chettiar was also present in the
house of P.W. 7 and he saw him for the first time. P.W. 4 has further said that after preparing the document, he did not see the deceased at any
time thereafter, nor did he see the appellant (second defendant) at any time. In another portion of his evidence, he has said that the appellant was
seen at the time the will was prepared. One important sentence in the evidence of P.W. 4 is that
The said sentence shows that P.W. 7 played a very important role in preparing the will. It is further seen that immediately after the document was
registered, it is P.W. 4 who gets back the document from the Sub Registrar''s Office and entrusts the same to P.W. 7. Under normal
circumstances, it should have been only with the deceased. Till a notice is issued to the Co-operative society (first defendant), nobody speaks
about the will to any one. P.W. 4 (document writer) says that he took the deceased to the Sub Registrar''s Office, where he identified him. Even
the Sub Registrar had no prior acquaintance with the deceased. P.W. 4 has further said that himself and P.W. 7 are very close from childhood.
The relevant portion of his evidence is,
A reading of the evidence of P.W. 4 makes it clear that it was P.W. 7 who was the person behind the trans-action, and it was at his instance, the
very document (will) was prepared. There are certain interpolations in the alleged will Ex. A-15, which P.W. 4, the document writer, is not in a
position to explain in his evidence. Along with the same, let us consider the evidence of P. Ws. 2 and 3. P.W. 2, as I said already, is the son-in-law
of P.W. 7. He said that he saw the testator affixing his signature and he also attested the document, and at the time when he affixed his signature,
P.W. 3 was also present. Deceased also saw them affixing their signature. Even though the will is marked through him, he does not identify any of
the signatures in Ex. A-15. He said that there was no prior inti-mation about the execution only when his father-in-law (P.W. 7) called him to put
the signature. He also said that he did not inform any one about the will nor about the fact that he is an attestor. He also said that after the execution
of the will, late Nataraj Chettiar took ill and he went and saw him once at the hospital, and at another time in his house, and that all this time it was
the appellant who was treating him and was getting him medicines. He also pleaded ignorance as to why the appellant was not asked to attest the
will, if really she was present, and she was also a consenting party to the bequest.
19. The evidence of P.W. 3 is also similar. He also says that Nataraj Chttiar did not inform them about the execution of the will, and only through
his co-brother (P.W. 7), he came to know about the will. At that time, Nataraj chettiar might have been about 60 years old. He also said that
before signing the will, the will was read over to Nataraj Chettiar by P.W. 4. This statement of P.W. 3 is belied by the evidence of P.W. 4. In the
evidence of P.W. 4, he has said that he never visited Nataraj Chettiar in his house, nor did he (Nataraj Chettiar) speak to him about writing a will.
In this connection, both P.W. 2 and P.W. 3 do not say that it was at the instance of Nataraj Chettiar, they became the attestors. They have no
case that Nataraj Chettiar requested them to attest his signature. Therefore, they cannot have any animus to attest the will, for the demand was
made by P.W. 7. P.W. 3 also did not identify the signatures in Ex. A-15 will. When we come to the evidence of P.W. 7, it is clear that it was he
who arranged for the execution of the will. The reason mentioned for bequesting the entire property in favour of plaintiff was that she was brought
up by the deceased and the appellant. He admitted that there was no document to show that it was Nataraj Chettiar who brought up the plaintiff.
She was admitted into the school by P.W. 7. She was given in marriage by P.W. 7. Nowhere Nataraj Chettiar is said to have played any part in
bringing up the plaintiff. He also said that they were only neighbours for a few years in the early period of plaintiff, and thereafter, the deceased
Nataraj Chettiar left their residence and shifted to some other place. P.W. 7 has said that he was not very much acquainted with P.W. 4. That
shows that he wants to suppress the truth. He also said that it was not at his instance, the will was drafted, though the evidence of P.W. 4 is
otherwise.
20. When a person executes a will, naturally we can expect that he would have stated truth, and if he has not bequeathed the property to his close
relations, the reason would be mentioned as to why he is preferring a stranger. If the plaintiff was a foster child, that could have been very well
mentioned in the will itself. It is conspicuously absent. If the appellant was present at that time, she would have been an attestor. Apart from all
these, why the deceased went to P.W. 7''s house and prepared the document, is not explained by anybody. It is not a case where the deceased
was not aware of the Sub Registrar''s Office. He is an edu-cated man. These matters have not been sought to be explained by any evidence
adduced on the side of the first respondent (plaintiff)
21. Great reliance is placed by learned Counsel for the first respondent on the fact that the will is a registered one. According to him, that will
prove the genu-ineness. It is true, registration to a certain extent proves the genuineness of a will. But, if the registration authorities have not
performed the statutory duty enjoined on them and have discharged their functions in a perfunctory manner, registration by itself will be of no avail.
22. In the decision reported in Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another, their Lordships said thus:
If a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a
will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of
registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner
that it was brought home to the testator that the document which he was admitting execution was a Will disposing of his property and there-after he
admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the will. But if the evidence as to
registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring
home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as for example, by seeing the testator
reading the will) that the testator knew that it was a will the execution of which he was admitting, the fact that the will was registered would not be
of much value. Registration may take place without the executant really knowing what he was registering.
(Italics supplied)
The Sub Registrar has been examined as P.W. 8. He said that it was he who registered the will Ex. A-15 : He said that Nataraj Chettiar was not
identified by any one, and the will was brought by him. In chief-examination, he has said:
In cross-examination, he admitted that he has never seen Nataraj Chettiar before. Even though in chief-examination, he said that he was not
identified any one, in cross-examination, he has said that he was identified by two witnesses. He also pleaded igno-rance about the mental
condition of the testator. He also said that before him, deceased Nataraj Chettiar did not affix his signature as the executant of the alleged will, nor
did the attestors put their signature. Only the identifying witnesses put their signatures in his presence. Further, he pleaded ignorance whether P.W.
4 was present. He also said that before him, the deceased did not go through the will. He never said that he read over the will to him. Even the
answers given by him in chief-examination will not show that the will was read over to him and he admitted the execution of the contents therein. A
reading of the evidence of P.W. 2 also shows that the registration formalities were also not complied with in accordance with law. The registration
was done in a perfunctory manner. On the basis of this evidence, I do not think the lower appellate Court was justified in granting a decree to the
plaintiff.
23. In this connection, two sentences in the evidence of the document writer (P.W. 4) are of some impor-tance. After the statement that he
prepared the will as directed by P.W. 7, he (P.W. 4) went on to say thus:
If this was the wish of the deceased, why she was given only a life estate by the deceased? That is a very big suspicious circumstance against the
plaintiff. When the deceased was educated and he knew to read and write, it is not explained as to why P.W. 4 was asked to prepare such a
document. Even if the deceased was not aware of preparing a document, a draft could have been prepared by the document writer and the
deceased could have been asked to write the same in a legal manner. It may also be noted that as a Member of the Society of the first defendant,
deceased was entitled to certain dividends. Even that was bequeathed to the plaintiff. That means, the appellant (wife of the deceased) was not
considered for any benefit, except a right to occupy the building. Under normal circumstances, this would not have been the position, especially
when none has a case that the deceased was not in cordial relationship with his wife, appellant herein. In Kashibai and Another Vs. Parwatibai and
Others, their Lordships said as to what is meant by ''attestation'', and ''execution of a will''. The relevant portion of the decision reads thus:
Section 68 of the Evidence Act shows that ''attestation'' and ''execution'' are two different acts one following the other. There can be no valid
execution of a document which under the law is required to be attested without the proof of its due attestation and if due attestation is also not
proved, the fact of execution is of no avail. Section 63 of the Succession Act also lays down certain rules with regard to the execution of
unprivileged Wills. The word ''attested'' has been defined in Section 3 of the Transfer of Property Act.
24. The attesting witness must have an animus to attest it. But the evidence of P. Ws. 2 and 3 does not show that they signed the document with an
intention to attest it. In this case the identity of the executant of the will is not established. All the suspicious circumstances only show that a
document has come into existence in the name of the deceased Nataraj Chettiar and the same has been prepared at the instance of P.W. 7 in his
house, attested by his co-brother and his son-in-law. The legatees under that document is not related to the deceased, but she claims only as a
foster daughter, for which there is absolutely no evidence, and at the same time, the executant has completely disinherited his wife. The signature is
also not identified. Evidence of P.W. 4 shows that what the deceased intended has not been incorporated in the document.
25. The lower appellate court received some additional evidence, and, mainly relying on the same, it has granted a decree in favour of the plaintiff.
According to me, the procedure adopted by the lower appellate Court is most improper. No grounds were made out to receive the additional
evidence. It is fur-ther seen that those additional documents have come into existence only as a result of collusion with the first defendant. Even
before the document could come to Court, photostat copies of the same were produced by the plaintiff before the lower appellate court. The
purpose of production of those documents was, to show that after the death of Nataraj Chettiar, appellant moved an application before the first
defendant-Society that she may be substituted in the place of her husband. There is a further statement there that the appellant has been named as
his nominee. On the basis of the said statement, the lower appellate Court thought that the appellant also might have known about the execution of
the will and the plaintiff was very closely associated with them. The lower appellate Court itself has said in paragraph 21 of its judgment as follows:
It is not known how the plaintiff was able to get xerox copy of a particular page in the Admission register maintained in the first defendant-Society.
It is quite likely that with the connivance of some-body working in the society that particular page was photographed.
But the lower appellate Court discarded that circum-stance and said thus:
Whether that particular employee of the society was right in allowing that particular page being photographed by somebody, at the instance of the
plaintiff, is not a question to be considered by us in this appeal.
The lower appellate Court thereafter assumes that it was the appellant who has expressed her consent to make the plaintiff as her nominee. When
the same is disputed, marking the same without permitting the appellant to adduce counter evidence was most improper. According to me, the
additional documents also are not going to help the plaintiff in any way. If we take into consideration these additional documents, they will only
prove that the appellant was asserting her absolute right over the property. She wanted her name to be substituted in the place of her husband as
owner of the property, and thereafter permit her to pay the dues to the Society. Even if the plaintiff claims as a nominee, it is only her (appellant''s)
nominee, and not of the deceased. If she has stated anything about the will in the additional documents, there would have been some relevance in
admitting them. Reliance placed by the lower appellate Court on the additional documents, and that too coming to a conclusion on the basis of
those documents against the appellant, was illegal, The lower appellate Court has not considered part played by P.W. 7 in preparing Ex. A-15,
nor has it considered the admissions made by P.W. 4. Being a question of law, as decided in the decisions cited supra, when the lower appellate
Court has not considered about the proper execution of the will, this Court is entitled to consider the evidence and come to the conclusion whether
the execution has been properly proved. It is not a reappreciation of the evidence. this Court is only finding out whether the conclusion arrived at
on the available evidence was legal and correct. If no such conclusion could be arrived at on the materials placed before it, that will be a ground to
interfere u/s 100, C.P.C.
26. In the result, I set aside the judgment of the lower appellate Court and restore that of the trial Court. The suit O.S. No. 966 of 1981, on the file
of District Munsif''s Court, Coimbatore, is dismissal with costs throughout.
