G. Rajasuria, J.@mdashThis second appeal is focussed by D1 and D2, animadverting upon the judgment and decree dated 21.2.2005 passed by the learned Principal Subordinate Judge, Erode in A.S. No. 49 of 2004 reversing the judgment and decree dated 23.7.2004 passed by the learned II Additional District Munsif, Erode in O.S. No. 61 of 1999. The parties are referred to here under according to their litigative status and ranking before the trial Court.
2. Compendiously and concisely, the germane facts absolutely necessary for the disposal of this Second Appeal would run thus:
(a) The original plaintiff-Nachiammal filed the suit for partition seeking the following reliefs:
To pass a judgment and decree as follows:
(a) directing the division of the suit property by metes and bounds with reference to good and bad soil into 16 equal shares by appointing a commissioner and allot 5 such consecutive shares to her and put the plaintiff herein in possession of such allotted shares.
(b) restraining the defendants 4 and 5 herein their men and agents by means of a permanent injunction from in any manner encumbering the suit property till a final decree is passed in this suit.
(c) directing the defendants 4 and 5 herein to pay the plaintiff the cost of this suit.
(extracted as such)
(b) The averments in the plaint could succinctly and precisely be set out thus:
The property described in the schedule of the plaint absolutely belonged to her deceased husband Kaliappa Gounder, who died intestate on 28.3.1992 leaving behind his widow, viz., Nachiammal the original plaintiff, his son Nachimuthu Gounder and his two daughters viz., Lakshmi D1 and Rajammal D2. It so happened that the legal heirs were in joint possession of the suit property. The said Nachimuthu Gounder died intestate during the year 1998 leaving behind his wife Annakodi (D3) and his two daughters, viz., Kuppulakshmi (D4) and Vijayalakshmi (D5). After the death of Nachimuthu Gounder when the original plaintiff sought for partition, the legal heirs of deceased Nachimuthu Gounder did not agree to it. Hence, the suit.
(c) D1 to D3 remained absent and set ex parte in the trial Court.
(d) D4 and D5 filed the written statement setting out various averments, the warp and woof of the same would run thus:
The relationship as found detailed in the plaint is an admitted one. However, the said Kaliappa Gounder during his life time executed an unregistered Will dated 4.9.1991 bequeathing the suit properties, so to say, his self-acquired properties in favour of D4 and D5. As such, they prayed for the dismissal of the suit.
(e) Whereupon issues were framed.
(f) Up went the trial, wherein the plaintiff examined herself as P. W. 1 and marked Exhibits A-1 to A-8. On the defendants'' side, D4 examined herself as D.W. 1 along with D.W. 2 and marked Exhibits B-1 to B-22.
(g) Ultimately, the trial Court passed the preliminary decree allotting 5/16 th share in favour of the plaintiff in the suit for partition.
(h) Being aggrieved by and dissatisfied with such preliminary decree, D4 and D5 filed the appeal, whereupon the first appellate Court reversed the judgment and decree of the trial Court giving a finding that the Will Exhibit B-4 is valid and accordingly, dismissed the suit.
3. After the dismissal of the appeal by the first appellate Court, it appears that the original plaintiff Nachiammal died; whereupon, the two daughters, viz., Lakshmiammal (D1) and Rajammal (D2) in the suit with the leave of the Court presented this second appeal, contending that the deceased Nachiammal executed the registered Will dated 18.1.2002 pendente lite bequeathing her share in the suit property in favour of them.
4. My learned predecessor at the time of admitting the second appeal, framed the following substantial question of law.
Whether the Courts below are right in not applying the strict principles laid down in Section 63(c) of the Succession Act and should it not have held that the non-examination of persons capable of identifying the signature of the deceased attestor is fatal to their case?
(extracted as such)
5. I have reformulated the substantial questions of law to the knowledge of both sides as under:
1. Whether the first appellate Court was justified in upholding the validity of Exhibit B-4, the un-registered Will despite the absence of evidence relating to the fact as to who secured the presence of the scribe and the witnesses to the house of the testator and also the non proving of the signature of one other deceased attesting witness, viz., Thangavelu and also the factum of disinheriting all the four legal heirs of the deceased Kaliappa Gounder?
2. Whether there is any perversity or illegality in the judgment and decree of the first appellate Court?
6. Heard both sides.
7. The learned counsel for the appellants/D1 and D2 would put forth and set forth his arguments, which could pithily and precisely be set out thus:
(i) The first appellate Court despite the fact that an expert could not give any opinion because the disputed left thumb impressions and the sample thumb impressions, were not decipherable and ridges in the thumb impressions were not clear, went to the extent of upholding the validity of the Will Exhibit B-4, warranting interference in second appeal.
(ii) The only attesting witness examined viz., Rathinam D.W. 2 is an interested person and he is the close relative of the alleged beneficiaries under the Will. His evidence is also not free from doubt.
(iii) There is no clarity at all in his evidence. There is nothing to show as to why the wife of the testator was disinherited. Over and above that his two daughters, viz., the appellants herein were disinherited as per the alleged Will. His son also was disinherited by describing him as a sot or drunkard.
(iv) The Will was not divulged for more than 5 or 6 years after the death of the testator. No mutation in official records was effected and no name change was also effected in favour of the beneficiaries. Despite this murky and cloudy situation and scenario, the first appellate Court simply accepted the Will and reversed the reasoned finding of the trial Court.
(v) In order to prove the genuineness of the signature of one other attesting witness, no steps have been taken; however it was pointed out that he died.
Accordingly, he would pray for setting aside the judgment and decree of the trial Court and for restoring the judgment and decree of the trial Court.
8. In a bid to torpedo and pulverise the arguments put forth on the side of the learned counsel for the appellants/D1 and D2, the learned counsel for the respondents/contesting defendants would pyramid his arguments, the warp and woof of the same would run thus:
(i) Normally, the purpose of executing the Will itself is to disinherit the legal heirs and in such a case, there is nothing to doubt the genuineness of Exhibit B-4 on the ground that the testator disinherited his legal heirs by executing Exhibit B-4.
(ii) The beneficiaries under Exhibit B-4 happened to be his deceased son''s daughters, who were unmarried at the relevant time and in order to provide some support for them such Will was executed in their favour and that too in view of the fact that their father was a sot/drunkard.
(iii) The testator also took care to specify in Exhibit B-4 that the beneficiaries should took care to see that the testator''s widow and the mother of the beneficiaries should be looked after, along with the beneficiaries'' father.
(iv) The Will was not compulsorily registerable and hence, the non-registration cannot be looked askance at.
(v) The first appellate Court correctly considering the pro et contra, decided the appeal, warranting no interference in this second appeal.
9. At the outset itself, I would like to fumigate my mind with the following decisions of the Hon''ble Apex Court:
(i)
(ii
(iii)
(iv)
A mere running of the eye over those decisions before getting down to the facts, would unambiguously and unequivocally, exemplify and demonstrate that the Court, which is seized of the second appeal would be reluctant to re-appreciate the facts. However, it has been pellucidly and palpably highlighted by the Hon''ble Apex Court that when there is perversity or illegality in the findings of both the Courts below, the High Court would be justified in re-appreciating the evidence and arrive at a just conclusion.
10. Insofar as this second appeal is concerned, the paramount and important duty of this Court is to find out whether Exhibit B-4 is a genuine Will or not.
11. Indubitably and indisputably, Exhibit B-4 is an unregistered Will purported to have emerged on 4.9.1991. However, after 5 or 6 years, so to say, after the death of the alleged testator and that too subsequent to the issuance of the pre-suit notice by the plaintiff the defendants 4 and 5 in their reply notice vide Exhibit A-7 stated about the existence of Exhibit B-4. Had really such a Will emerged on 4.9.1991 that would have come to limelight soon after 28.3.1992, the date of death of the testator but that was not so. The additional documents filed on the side of the defendants would disclose and exemplify that after the death of the original owner of the property, viz., Kaliappa Gounder, the kist receipts all emerged only in the name of Nachimuthu Gounder and not in the name of Nachimuthu Gounder''s daughters D4 and D5, who claim to be the beneficiaries. The electricity receipts and also the telephone receipts are only in the name of Nachimuthu Gounder only and Exhibits B-11 to B-16 would disclose the same.
12. The preponderance of probabilities would govern the adjudication in civil cases. If really, the Will is a registered Will, then in such a case, belated disclosure of the Will might not matter much; because there will be some basis for discerning that, that Will might have at least emerged as on the date of the registration of the Will. But in the case of the unregistered Will, no such discerning is possible and that too in the wake of the peculiar facts and circumstances of this case. After the death of the testator, the kist receipts relating to the suit property, the electricity bills relating to the electricity policy concerning the suit property, are only in the name of the Nachimuthu Gounder. On the contesting defendants'' side Exhibit B-6, the Panchayat Muchalika was also marked, which is also an unregistered one. Obviously and axiomatically, no authenticity could be attached to it because that emerged purportedly between D4 and D5, who claimed to have been having joint interest in the suit property and to falsify the case of the plaintiff. If really the property was bequeathed by the testator in favour of D4 and D5 and had they wanted to partition the suit property, there is no knowing of the fact as to what prevented them from partitioning the suit property even during the life time of their father or after the death of the original owner Kaliappa Gounder.
13. Here, the Court is posed with a cloudy picture wherein the very disputed thumb impressions of the testator themselves are not clear. The expert opinion admittedly was to the effect that both the sample signatures as well as the disputed signatures were undecipherable. In such a case, it is quite unsafe for the Court to place reliance on such thumb impression found on the Will.
14. The learned counsel for the contesting defendants would place reliance on the judgment of the Kerala High Court in &
15. I would like to fumigate my mind with the following decisions:
(i)
8. To say will has been duly executed the requirements mentioned in Clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e., (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witness has to sign the Will in the presence of the testator.
9. It is thus clear that one of the requirements of due execution of Will is its attestation by two or more witnesses which is mandatory.
10. Section 68 of the Evidence Act speaks as to how a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested 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 an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the wilt was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by Clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of the proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily u/s 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of the Clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in this evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required u/s 63 of the Succession Act. Where one attesting witness examined to prove the will u/s 68 of the Evidence Act fails to prove the due execution of the Will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act
(emphasis supplied)
(ii)
10. This brings us to the question of the will alleged to have been executed by deceased Lachiram in favour of his grand-son Purshottam, the defendant No. 3. Section 68 of Evidence Act related to the proof of execution of document required by law to be attested. Admittedly, a Deed of Will is one of such documents which necessarily required by law to be attested. Section 68 of the Evidence Act contemplates that if a document is required by law to be attested, it shall not be used as evidence until the 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. A reading of Section 68 will show that "attestation" and "execution" are two different acts one following the other. There can be 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 Indian Succession Act, 1925 also lays down certain rules with (C) of Section 63 provides that the Will shall be attested by two or more witnesses each one 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 acknowledgement of his signature of mark of the such other person; and each of the witnesses should 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.
(emphasis supplied)
I would also like to refer to a few more decisions regarding "Will".
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix) M. Anandan and Others v. A. Dakshinamoorthy (2008) 2 MLJ 119
(x
(xi)
(xii)
A mere running of the eye over the aforesaid precedents would unambiguously and unequivocally, point up and show up the fact that the Court should be wary of entertaining evidence of dubious nature. Unless there is clarity in the evidence in proving the Will, the question of placing reliance on such a Will would be a well-neigh impossibility.
16. Hence, it is just and necessary to analyse and verify the deposition of D.W. 2-Rathinam.
17. No doubt, he would depose that in his presence, the testator had put his left thumb impressions on Exhibit B-4 and it was witnessed by himself, the original plain-tiff-Nachiammal and one other attesting witness Thangavelu and also the scribe-Kandasamy. There is no direct evidence on the point that the testator saw the attesting witnesses attesting the Will. However, he would simply state that while the attesting witnesses put their signatures, all others who were present, witnessed it. Over and above that there is nothing to indicate as to how the scribe-Kandasamy was summoned to the testator''s house, which is in a remote village and with whose assistance the steps to prepare the draft as well as the fair Will were performed. D.W. 2-Rathinam would state that he was not the relative of the testator. In fact on the plaintiff''s side, an attempt was made to project D. W. 2 as the son in law of D3 ''s sister. But that fact was disputed by D.W. 2 himself. Be that as it may, the pertinent question arises as to what made Rathinam to voluntarily to go to the house of the testator on 4.9.1991 in that Avalpoonthurai village, where the house of the testator is situated.
18. The original plaintiff, in her deposition as D.W. 1 candidly and categorically denied the factum of she allegedly having been present at the alleged emergence of Exhibit B-4 Will in the house of the testator. No step was taken to identify the signature of one other attesting witness, viz. Thangavelu. D.W. 2 evidence is not clear concerning the signature of Thangavelu in Exhibit B-4. No doubt, generally, Rathinam in his deposition would assert that he saw another attestor also signing. Since the plaintiff disputed the genuineness of the Will itself and also the veracity of D.W. 2, the propounder of the Will was enjoined to summon proper witness or witnesses to identify the signature of the deceased attesting witness-Thangavel. But that also was not done.
19. Admittedly and incontrovertibly, the testator lived upto 28.3.1992. In such a case, there is no knowing of the fact as to what prevented the interested person or persons concerned to get the Will registered even at least by summoning the Registrar to the residence of the testator. A licensed scribe, had scribed the Will and he was capable of seeing the wood for trees and in the know of procedures relating to registration of the Will by summoning the Registrar to the house of the testator. But, in this case, no steps were taken to get the Will registered.
20. The learned counsel for the contesting defendants would submit that when law does not require the Will to be registered, then the non- Registration of the Will need not be looked askance at.
21. What I would like to observe is that it all depends upon the facts and circumstances of each case. Here, all the legal heirs of the testator were disinherited, but for the Will. As per Section 8 read with Class I of the Hindu Succession Act, four persons, namely, the widow, the son and two daughters of the deceased Kaliappa grounder were the legal heirs. But all those four persons were fully disinherited and in such a case, the Court would look askance at the factum of non-registration of the Will and that too when as per the narration of the contesting defendants, there was possibility and probability of getting it registered even by summoning the Registrar to the house of the testator.
22. In this case, the scribe also stated to have died. No doubt, the signature of the scribe need not be proved. However, to probabilise the case of D4 and D5, steps could have been taken also to prove the factum of scribing of the Will by Kandasamy.
23. Hence, in view of the patchy and sketchy evidence, the first appellate Court was not justified in simply placing reliance on such an unregistered Will. The factors, which I have adverted to supra, were not at all considered by him. Hence, I am of the view that the judgment and decree of the first appellate Court should be set aside by holding that the contesting defendants did not prove the Will.
24. On balance,
(i) The substantial question of law No. 1 is decided to the effect that the first appellate Court was not justified in upholding the validity of Exhibit B-4, the un-registered Will despite the absence of evidence relating to the fact as to who secured the presence of the scribe and the witnesses to the house of the testator and also the non-proving of the signature of one other deceased attesting witness, viz., Thangavelu and also the factum of disinheriting all the four legal heirs of the deceased Kaliappa Gounder.
(ii) The substantial question of law No. 2 is decided to the effect that in view of the ratiocination adhered to in deciding the first substantial question of law, the matter is remitted back to the trial Court for deciding the matter in the aforesaid manner.
25. In view of the peculiar circumstances, which crept in this case pendente lite, consequent upon the death of the original plaintiff and that too after she having allegedly executed a Registered Will of her share in the suit properties in favour of her two daughters, who are the appellants herein, necessarily the trial Court has to consider those aspects. For that purpose alone, the matter has to remitted back to the trial Court for permitting the plaintiff''s to get the plaint amended suitably in this regard and the contesting defendants shall be permitted to file additional written statement. Whereupon, necessary issues have to be framed only with regard to the validity or otherwise of the Registered Will executed by the original plaintiff in favour of her two daughters D1 and D2. After taking evidence and hearing both sides, in the event of the Court holding that the said Registered Will is a valid one, then, the share of the original defendants Dl and D2, viz., Lakshmi and Rajammal would get enlarged and a preliminary decree shall be passed superseding the earlier preliminary decree as otherwise, the original preliminary decree itself shall hold good. Accordingly, the parties shall appear before the learned II Additional District Munsif, Erode on 21.11.2012. Registry is directed to send back the original records to the said Court immediately. With the above direction, this second appeal is disposed of. No costs.
