Gnanasoundari v. Chinammal — 1999 DIGILAW 1123 (MAD)

Judgment :- These Second Appeals are being disposed of by this common judgment, as these appeals would arise out of a common judgment and the issue and the parties are the same in both the appeals. 2. Gnanasoundari, the appellant herein filed the suit in O.S. No. 490 of 1981 ‘ for declaration of title to the suit property and injunction on the strength of the will dated 11.01.1980 executed by her husband Azhagu Padayachi in respect of superstructure. Subramanian, the third defendant in the said suit filed a suit earlier on O.S. No. 2425 of 1978 being one of the sons of Azhagu Padayachi claiming partition of his 5/16 share alleging that Azhagu Padayachi, who died pending the suit was the karta of the joint family and the suit properties should be divided between the sons and the mother, that Gnanasoundari, the 8th defendant in the said suit was not the legally wedded life to the said Azhagu padayachi and that his father did not execute any Will in respect of item No. 18 (superstructure) claimed by Gnanasoundari. 3. Both the suits were tried together and a common judgment was delivered. In O.S. No. 2425 of 1978, the trial Court granted a decree to Subramanian, the plaintiff for 5/16 share in the suit items except item No. 18. In O.S. No. 490 of 1981, the trial Court accepted the case of Gnanasoundari regarding item No. 18 and decreed the suit. 4. Challenging these decisions, the respondents herein filed the appeals in A.S. Nos. 54 and 55 of 1986 on the file of Sub Court, Vridhachalam. After hearing the counsel for the parties, the lower Appellate Court allowed both the appeals filed by the respondents herein by a common judgment holding that the respondents would be entitled to the share in item No. 18 also and that the Will executed in favour of Gnanasoundari was not a valid and true document. 5. It is against this common judgment, the present Second Appeals have been filed by Gnanasoundari, the appellant herein in respect of item No. 18 of the suit properties contending that the lower Appellate Court gave a wrong finding that the Will was not proved to be a valid and true document. 6. At the time of admission of the Second Appeals, the common substantial questions of law were formulated, which are hereunder:— 1. 6. At the time of admission of the Second Appeals, the common substantial questions of law were formulated, which are hereunder:— 1. Whether the lower Appellate Court was right in its conclusion that the will Ex. B4 had not been proved according to law? 2. Whether the lower Appellate Court was right in having granted a decree to the plaintiff in O.S. No. 2425 of 1978 with reference to entire item 18? 7. I have given my thoughtful consideration to the arguments advanced by both the counsel for the parties with reference to the questions of law mentioned above 8. Subramanian, the respondent herein is the son of Azhagu Padayachi through his first wife. He filed a suit in O.S. No. 2425 of 1978 claiming partition of his 5/16 share in respect of the suit properties, items 1 to 18. In the said suit, the first defendant is his father Azhagu Padayachi, who died during the pendency of the suit. Gnanasoundari, the appellant was impleaded as 8th defendant in the said suit, since it was pleaded on her behalf that the item 18 exclusively belongs to her by virtue of a Will executed by the first defendant in her favour and no share could be allotted to the said Subramanian in respect of the said item. Subramanian, the plaintiff therein claimed partition in items 1, 14 and 19 also which were stated to have been sold to the purchasers without any necessity and for the benefit of the estate and those purchasers were also made as defendants in the said suit. They have also filed written statement stating that Azhagu Padayachi, first defendant sold those properties as a Karta of the joint family for discharging the loan incurred by the family and as such, the plaintiff would not be entitled to any share in those properties, namely 1, 14 and 19. 9. Gnanasoundari, the appellant herein filed a separate suit in O.S. No. 490 of 1981 for declaration of title and injunction in respect of item No. 18 stating that she became the absolute owner of the said property by virtue of the Will executed by Azhagu Padayachi in her favour. It is contested by the said Subramanian and others by stating that the Will was not a true and valid document and the same was a fabricated one. It is contested by the said Subramanian and others by stating that the Will was not a true and valid document and the same was a fabricated one. They would also state that Gnanasoundari was not a legally wedded wife to Azhagu Padayachi. 10. A common enquiry was conducted in both the suits by the trial Court. On considering the materials adduced by the parties through P.Ws. 1 to 3 examined on behalf of Subramanian claiming partition and Exs. A1 to A10 marked on his side and through D.Ws. 1 to 6 examined on behalf of Gnanasoundari and other purchasers and Exs. B1 to B43 marked on their side, concluded that the plaintiff Subramanian would be entitled to 5/16 share in the suit properties other than items 1, 14, 18 and 19. It further held, on the basis of the finding, that items 1, 14, and 19 were sold by Azhagu Padayachi to the purchasers only out of the family necessity and for the benefit of the estate, as a karta of the family and the said sale would be binding on the plaintiff and that item 18 superstructure was bequeathed in favour of Gnanasoundari by virtue of Ex. B4 Will dated 11.01.1980, which is a true and valid document. 11. Before the first Appellate Court, Subramanian, while challenging the finding in regard to items 14, 18 and 19 in appeals in A.S. Nos. 54 and 55 of 1986, would make an endorsement through his counsel that he would not press the points as against the finding in respect of items 1, 14 and 19 and would confine himself, to a finding only in regard to Will by which item 18 of the suit properties was bequeathed in favour of Gnanasoundari. On the basis of the said endorsement, the submissions were made by the counsel for the plaintiff and reply of the counsel for the respondents/defendants was also heard by the first Appellate Court. 12. After hearing the parties, the lower Appellate Court found that Ex. B4, the Will is not a true and valid document and consequently, the plaintiff would be entitled to the share in item 18 of the suit properties also and accordingly, it modified the decree in favour of the plaintiff. 13. 12. After hearing the parties, the lower Appellate Court found that Ex. B4, the Will is not a true and valid document and consequently, the plaintiff would be entitled to the share in item 18 of the suit properties also and accordingly, it modified the decree in favour of the plaintiff. 13. In these Second Appeals, the subject matter of challenge is the finding rendered by the lower Appellate Court with reference to the validity of the Will dated 11.1.1980. On going through the judgments of both the Courts below, it is noticed that various reasons have been given by both the Courts below for rendering diverse findings. 14. The trial Court discussed the materials placed by Gnanasoundari, the plaintiff in O.S. No. 490 of 1981, in order to prove that the Will is a genuine document and elaborately discussed and appreciated the evidence of D.Ws. 1 and 3, the attesting witnesses, D.W. 2, the scribe of the document and D.W. 4, Gnanasoundari, the propounder of the Will and concluded that the Will was executed by the testator in favour of Gnanasoundari with his free Will and volition. 15. On the other hand, the lower Appellate Court would find various suspicious circumstances and give several reasons for concluding that the Will had not been validly proved. 16. Before launching discussion on the merits of the contentions urged by the counsel for the parties, this Court should remind itself regarding the power vested under Section 100 C.P.C., while dealing with the Second Appeal. 17. It has to be borne in mind, while entertaining the Second Appeal, that the right of appeal is neither a natural nor an inherent right attached to the litigation. The conditions mentioned in the Section must be strictly fulfilled before a Second Appeal can be maintained. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this Section. 18. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first Appellate Court. In a case where from a given set of circumstances, two inferences are possible, one drawn by the lower Appellate Court is binding on the High Court in Second Appeal. The Second Appeal cannot be decided on merely equitable grounds. 19. In a case where from a given set of circumstances, two inferences are possible, one drawn by the lower Appellate Court is binding on the High Court in Second Appeal. The Second Appeal cannot be decided on merely equitable grounds. 19. However, in the interest of justice, it would be essential not to ignore improper appreciation of evidence or to turn a blind eye to glaring mis-reading of the evidence by the Subordinate Courts. To put it briefly, in cases where the Appellate Court had arrived at its conclusions by ignoring important evidence on record such findings are not binding in the Second Appeal. 20. Though whether a person was in a fit state of mind to execute the deed was a question of fact, yet where both the Courts below had ignored the weight of preponderating circumstances and allowed their judgments to be influenced by inconsequential matters, the High Court is justified in reappreciating the evidence and in coming to its own independent conclusions. 21. When both the Courts below had recorded diverse findings and where the material evidence and the relevant circumstances had not been adverted to by the lower Appellate Court, the High Court would certainly be justified in interfering with the finding of fact. 22. These are the principles propounded by the Apex Court in the followingg decisions:— Kondiba Dagadu Kadam v. Savitribai Sopan Gujar ( AIR 1999 S.C 2213 = 1992-2-L.W. 614); Sonawatia v. Sri Ram ( AIR 1968 SC 466 ); Swain Singh v. Mehenga 1996 2 S.C.C. 624); Madan Lal v. Gopi ( AIR 1980 S.C. 1754 ); 23. The Supreme Court in Major Singh v. Rattan Singh 1997 3 S.C.C. 546), while dealing with a similar question as to whether a Will was validly executed in the case where the trial Court and the first appellate Court had concurrently found that the Will was not validly executed but the High Court on evidence held that the rejection of the evidence of the attestors was not correct, would hold that the High Court is justified in interfering with the concurrent findings. 24. In the above decision, the Apex Court while upholding the judgment of the High Court, disturbed the finding of the Courts below, as the reasons given by them are flimsy. 24. In the above decision, the Apex Court while upholding the judgment of the High Court, disturbed the finding of the Courts below, as the reasons given by them are flimsy. The relevant portion is this:— “Under these circumstances, when the Courts below had rejected the 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. In view of the above reasoning of the trial Court as affirmed by the appellate Court, necessarily the High Court requires to go into that question to test the reasons. In this perspective, the High Court has rightly gone into that question and found that the reasons given by the Courts below are flimsy. Thus, there is substantial question of law that has arisen for consideration and the High Court has rightly considered the question.” 25. Thus, it is clear that this Court in the present case would consider whether the lower Appellate Courts finding is correct, in the light of the diverse finding given by the trial Court. 26. As held by the Supreme Court, if the reasons given by the lower Appellate Court are flimsy, then this Court would certainly get the power to restore the judgment and decree passed by the trial Court. In other words, though there are some restrictions and conditions put in Section 100 of C.P.C., it cannot be contended that there is a total prohibition of exercising the powers under Section 100, C.P.C., while considering the findings of the lower Appellate Court, though it is a last Court of fact. 27. Let us now come to the aspect relating to the genuineness and validity of the Will dated 11.1.1980. 28. According to Gnanasoundari, who was examined as D.W. 4, she got married to Azhagu Padayachi as Second wife. Both were living as husband and wife under the same roof. In order to prove this, she produced Exs. B6, B7 and B8, the voters’ list relating to the years 1972, 1973 and 1977. In item No. 18, the superstructure alone belonged to the deceased Azhagu padayachi. 29. There is no dispute with regard to the fact that the suit belonged to one patha Sahib. In order to prove this, she produced Exs. B6, B7 and B8, the voters’ list relating to the years 1972, 1973 and 1977. In item No. 18, the superstructure alone belonged to the deceased Azhagu padayachi. 29. There is no dispute with regard to the fact that the suit belonged to one patha Sahib. From the year 1973, Azhagu Padayachi, her husband was suffering from diabetics and he was being given periodical treatment. She has also produced Ex. B22, doctors prescription. In January, 1980, her husband Azhagu Padayachi was admitted in the Pondicherry Hospital. He underwent a surgery. At that stage, he wanted to bequeath the superstructure in item No. 18 in which both were living together, in favour of Gnanasoundari. 30. During that time, the suit filed by the son Subramanian against Azhagu padayachi and others was pending. As indicated earlier, item 18 also was included in the suit as one of the suit properties. Under those circumstances, the testator Azhagu Padayachi wanted to execute a registered Will in favour of Gnanasoundari, since he felt that she might be disturbed from the house in which both were staying, by his son through his first wife, after his death. Hence, he contacted D.W. 3, Veda Manickam, who was the neighbour and former M.L.A. to help him in getting the Will executed and registered in favour of Gnanasoundari. 31. On 10.01.1980 Azhagu Padayachi gave a written requisition to the Chief Medical Officer in the Government Hospital requesting permission to allow him to execute the Will in favour of his wife and to get it registered, by the Sub Registrar at the Hospital itself. The Chief Medical Officer on report of this requisition, sent a Doctor to find out the veracity of his statement and whether he is a fit condition to execute a Will. Accordingly, Dr. Dev Ananad, at about 4.30 P.M. on the said day went and saw the patient. Thereafter, he gave a certificate that he is in a fit state and is willing to make a statement. On the basis of this certificate, the permission was granted by the Chief Medical Officer. These records have been marked as Ex. B5. 32. Next day, that is, on 11.1.1980 being Friday, D.W. 3 Vedamanickam and his relative D.W.I, a resident of Pondicherry, went and brought D.W. 2 Kothandaraman to the hospital. Then, Ex. On the basis of this certificate, the permission was granted by the Chief Medical Officer. These records have been marked as Ex. B5. 32. Next day, that is, on 11.1.1980 being Friday, D.W. 3 Vedamanickam and his relative D.W.I, a resident of Pondicherry, went and brought D.W. 2 Kothandaraman to the hospital. Then, Ex. B4, the Will was prepared by the scribe D.W. 2, which was signed by the testator, attested by both D.W.I and D.W. 3. Thereafter, at 1.45 P.M., D.W. 3 and others went to Sub Registrars Office to bring him to the hospital. Since it became late, the Sub Registrar did not incline to come to the hospital. 12.1.1980 being second Saturday was a holiday and till 17th there were Government holidays on account of Pongal. After 17th, since his condition was very serious, he was taken back to his house, where he died on 23.1.1980. These factors have been given by D.W.I to D.W. 4. 33. In corroboration of the oral evidence relating to the execution of Will, as indicated above, Exs. B4 and B5 were marked. Though it was contended by Gnanasoundari that she got married to Azhagu Padaya chi, the trial Cour would hold that the marriage was not proved. But, on the basis of Exs, B6 to B27, it would hold that both were living together and originally the superstructure (house) in item 18 was in the name of Azhagu Padayachi and after his death, it was transferred to the name of Gnanasoundari. Ex. B29 also has been filed on behalf of Gnanasoundari to show that the site in item No. 18 was purchased by Gnanasoundari from Patha Sahib. 34. Though there is a dispute with reference to the genuineness of the Will Ex. B4, it is not disputed that the other documents would show that both were living together under one roof and the item 18 of the suit properties was enjoyed by both till the death of Azhagu padayachi and after his death, the superstructure has been enjoyed by Gnanasoundari, who later purchased the site also from Patha Sahib. 35. All these things have been discussed by the trial Court in detail and be lived and evidence of D.Ws. 1 and 3, the attestors and D.W. 2, the scribe and concluded that the Will is a valid document. 36. 35. All these things have been discussed by the trial Court in detail and be lived and evidence of D.Ws. 1 and 3, the attestors and D.W. 2, the scribe and concluded that the Will is a valid document. 36. At this juncture, it would be appropriate to refer to the reasonings given by the lower Appellate Court to take a contra view from that of the trial Court in regard to the validity of the Will. 37. The lower Appellate Court found the following suspicious circumstances to hold that the Will is not a valid document:— (1) Ex. B5 would show that Dr. Dev Anand would make an endorsement that Azhagu Padayachi was in a fit condition to give statement. On this basis, permission was granted by the Chief Medical Officer to execute the Will. But, doctors were not examined in the Court to show that he was in a fit condition to execute the Will. (2) The Will was executed on 11.1.1980. Within a short time, that is, on 23.1.1980, he died. Even on 10.1.1980 as per Ex. B5, he was not in a condition to move about and so, he requested permission to execute the Will in the presence of the Sub Registrar at the hospital. Even though the permission was granted, the document was not registered. There is no proper explanation. Even though there was sufficient time available even prior to 10.1.1980. there is no explanation as to why the Will was riot executed earlier. From 18.1.1990 till 22.1.1980, there was a chance for registration. This was not availed of. (3) Azhagu Padayachi as first defendant in his written statement would disown any right in item 18. But, in Ex. B4, it is stated that he purchased the said item on 30.5.1969. In Ex. B4, it is stated that the Will was drafted and executed at Pondicherry Government Hospital. But, Gnanasoundari in her written statement in the suit filed by Subramanian has stated that the Will was executed at Pondicherry Government Jipmer Hospital. D.W. 3 Vedamanickam is closely associated with Gnanasoundari and he is a neighbour. D.W. 3 is the uncle of D.W.I. Therefore, they arc-interested witnesses. D.W. 2, the scribe does not belong to the place in which the suit property is situate, whereas he belongs to Pondicherry. Therefore, D.Ws. 1 to 3 are not independent witnesses and their evidence is not reliable. 38. D.W. 3 is the uncle of D.W.I. Therefore, they arc-interested witnesses. D.W. 2, the scribe does not belong to the place in which the suit property is situate, whereas he belongs to Pondicherry. Therefore, D.Ws. 1 to 3 are not independent witnesses and their evidence is not reliable. 38. Let us now see as to what is the true legal position, in the light of the relevant provisions in the mode and matter of proof of Wills. The party propounding a Will making a claim under the Will has to prove the said Will. In deciding bow it is to be proved, we may refer to the statutory provisions which govern the proof of documents. 39. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person shall 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. 40. Section 73 of the Evidence Act would provide that the Court also is competent to compare the disputed signature with the admitted signature in order to find out whether the document was signed by the said person. 41. Section 68 deals with the proof of execution of the document required by law to be attested. As per this provision, such a document can be used a& evidence only when one attesting witness at least has been examined in the Court for the purpose of proving its execution. 42. Section 59 of the Indian Succession Act provides that every person of sound mind may dispose of his property by Will. Section 63 of the Indian Succession Act requires that the testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This Section also requires that the Will shall be attested by two or more witnesses as prescribed. 43. Thus, the question as to whether the Will propounded by the party is proved to be the last Will of the testator has to be decided in the light of these provisions. This Section also requires that the Will shall be attested by two or more witnesses as prescribed. 43. Thus, the question as to whether the Will propounded by the party is proved to be the last Will of the testator has to be decided in the light of these provisions. 44. It is well known that the proof of Wills presents various guidelines for decision by the Courts as decided by the large number of judicial pronouncements on the subject. The authorities cited by the counsel on either side are given below:— Venkatachala Iyengar v. Thimmajamma (1959 S.CJ 507); Purnima Deyi v. Khagendra Narayan ( AIR 1962 S.C. 567 ); G. Thataiah v. Venkata Subbiah ( AIR 1968 S.C. 1332 ); Brij Mohan Lal v. Giridhan Lal ( AIR 1978 S.C. 1202 ); Indu Bala Bose v. Manindra Chandra Bose 1982 1 S.C.C. 20 = 92 L.W. 145 S.N.); Misri Lal v. Daulati Devi ( AIR 1997 S.C. 3819 ). 45. From the reading of the above decisions, the following guidelines which have to be borne in mind, while appreciating the evidence relating to Will, would emerge:— (1) The propounder of the Will has to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind and that he understood the nature and effect of the dispositions and put his signature to the document of his own free Will. (2) When the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound disposing state of the testators mind and his signature as required of law, Court would be justified in making a finding in favour of the propounder. (3) If it is shown that the propounder has taken a prominent part in the execution of the Will and has received substantial benefit under it, that itself can be treated as a suspicious circumstance attending! the execution of the Will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. (4) The onus of proving the Will is on the propounder. 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. (4) The onus of proving the Will is on the propounder. 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. (5) The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testators mind the dispositions made in the Will being unnatural, improbable or unfair in the light of the relevant circumstances, or there might be other indications in the Will to show that the testators mind was not free. (6) Any and every circumstance is not a “suspicious” circumstances. 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. (7) What are the suspicious circumstances must be judged in the facts and circumstances of each particular case. It is obvious that for deciding the material questions of fact regarding the genuineness of the Will, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. The broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. (8) 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 by sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. The bald fact of registration is insufficient, when there are other circumstances creating suspicion on the execution of the document. (9) There are two rules of law set out. The first is that the onus for proving the execution of the document lies in every case upon the party propounding a Will and he must satisfy the conscience of the ‘Court that the instrument so propounded is the last Will of a free and capable testator. (9) There are two rules of law set out. The first is that the onus for proving the execution of the document lies in every case upon the party propounding a Will and he must satisfy the conscience of the ‘Court that the instrument so propounded is the last Will of a free and capable testator. The second is that, if a party writes or prepares a Will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court and call upon it to be vigilant and, zealous in examining the witness in support, of the instrument in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the J deceased. 46. It is the light of these principles, the evidence adduced in the present case will have to be considered. As I have already pointed out that the trial Court considered both oral and documentary evidence adduced by the appellant through D.Ws. 1 to 4 and Exs. B4 and B5 in detail and gave a factual finding that Ex. B4 is the last Will of a free and capable testator Azhagu Padayachi executed in favour of the appellant. However, on the strength of the various suspicious circumstances indicated above, the lower Appellate Court would reverse the’ findings of the trial Court and hold that the Will was not a genuine document and had not been proved in accordance with law. 47. A careful perusal of the alleged suspicious circumstances reveals that they are by no means suspicious circumstances and stand self-explained. This is a case, where there was a strained relationship between the testator, the husband of the appellant and the sons, the plaintiffs/respondents. Even before the death of the testator, the suit had been filed making the testator as first defendant claiming partition giving out various allegations against the testator. Admittedly, the appellant, thought not proved to be the legally wedded wife, was residing along with the testator under one roof. 48. Even before the death of the testator, the suit had been filed making the testator as first defendant claiming partition giving out various allegations against the testator. Admittedly, the appellant, thought not proved to be the legally wedded wife, was residing along with the testator under one roof. 48. Under these circumstances, in the light of the litigations pending between the testator and his sons, naturally the testator, who was living with the appellant for a long number of years, would certainly have the mind to execute the Will in favour of the appellant, who was all along depending upon him in the house and in the hospital, for bequeathing the property item No. 18, that is, superstructure, in order to avoid further future litigation. 49. In the light of the said fact situation, we have to see the so-called suspicious circumstances. 50. The Will was executed on 11.1.1980. The attesting witnesses are D.W. 1 Ramachandran and D.W. 3 Vedamaniekara. The documents marked in this case would clearly show that D.W. 3 was residing in the neighbouring house. He is a former M.L.A. According to him, he was requested by the testator to arrange for the execution of a Will in favour of the appellant. In pursuance of the said request, he made arrangements to bring the Sub Registrar to the hospital where the testator was admitted and had undergone surgery, for registration of the Will. Therefore, a requisition was written which was signed by the testator requesting the Chief Medical Officer to give permission to bring the Sub Registrar to the hospital to register the Will on 10.1.1980. 51. On the same day, the Chief Medical Officer directed the doctor concerned to go and verify about the testators fitness of the mind and veracity of the requisition. Accordingly, the said doctor went and examined the patient and gave a certificate that he is fit enough to give a statement and is also willing to give the statement as mentioned in his requisition. Immediately on the very same day, the permission was granted by the Chief Medical Officer. These factors are clearly revealed in Ex. B5, which would corroborate the evidence of D.W. 3. 52. D.W.I Ramachandran is a resident of Pondicherry. D.W. 3 is his uncle. D.W.I is working in the Post Office at Pondicherry. Immediately on the very same day, the permission was granted by the Chief Medical Officer. These factors are clearly revealed in Ex. B5, which would corroborate the evidence of D.W. 3. 52. D.W.I Ramachandran is a resident of Pondicherry. D.W. 3 is his uncle. D.W.I is working in the Post Office at Pondicherry. Therefore, on the request of D.W. 3, D.W.I went to the hospital and saw the execution. On 11.1.1980, as stated by both D.W.I and D.W. 3, the Will was drafted by D.W. 2, who is a scribe and who is also a local resident and the same was signed by the testator. The evidence of D.Ws. 1 and 3 and Ex. B5 would clearly show that both on 10.1.1980 and 11.1.1980, the testator was in a sound and disposing state of mind and on his direction, the Will was drafted and the same was signed by the testator in their presence. 53. When these details that been given, D.Ws. 1 to 3, who had no axe to jrind against the plaintiffs, the respondents herein, there cannot be any reason to reject their evidence. 54. Admittedly; as per the relevant section, the examination of one attesting witness in the Court would be sufficient to prove the document. In the present case, both the attesting witnesses and the scribe have been examined. Merely because D.W.I and D.W. 2 belong to Pondicherry and they do not hail from the local village where the suit property is situate, their evidence cannot be brushed aside. Similarly, the evidence of D.W. 3 being a local resident of the village, cannot be rejected merely because he was a neighbour. 55. As laid down by the Supreme Court, every circumstance cannot be a suspicious circumstance, as normally the person, who knows about the parties and especially when he is a neighbour, would be expected to help the sick man, the testator in the normal situation. 56. Nobody would normally invite a stranger or a foe to be a scribe or a witness of | the document executed by or in his favour. Normally, a known and reliable person, a friend or a relation is called for the purpose. This would apply to D.W. 3. who is said to be the interested witness for the reason that he was a neighbour. Normally, a known and reliable person, a friend or a relation is called for the purpose. This would apply to D.W. 3. who is said to be the interested witness for the reason that he was a neighbour. From the perusal of his evidence, there is nothing to show that he was not telling the truth in his deposition. 57. No doubt, it is true that the doctor who treated the testator and gave certificate would have been examined in the Court. But, the non-examination of the doctor by itself would not affect and credibility of the evidence adduced by D.Ws. 1 to 3, which is quite consonance with the contents of Ex. B5. 58. Similarly, the presence of the propounder, viz. , the appellant, at the time of execution, cannot be said to be a factor which would indicate that the propounder herself has taken a prominent part in the execution of the Will. In the present case, as already discussed, the Will was executed by the testator in favour of the appellant bequeathing only one property, namely, the superstructure in item 18. 59. Furthermore, it is not the case that the appellant took steps to procure the scribe and attesting witnesses and on her direction, the scribe drafted the Will. The evidence of D.Ws. 1 to 3 would clearly show that though D.W. 4, the appellant herein, was present when the Will was drafted, she was standing only as a spectator and that the Will was drafted only at the direction of the testator by giving out the details of the boundaries on perusing the diary, which was kept by him. 60. Further, it cannot be contended that ExB4 Will is a fabricated document, in view of the fact that D.Ws. 1 to 4 were cross-examined on this aspect. As a matter of fact, it was not suggested to any one of the witnesses that Ex. B4 Will is a fabricated document. 61. It is mainly contended that despite the fact that the Will was stated to have been executed on 11.1.1980, there is no explanation as to why the said document was not registered with the Sub Registrar before testators death on 23.1.1980. 62. This contention, in my view, does not have any substance. B4 Will is a fabricated document. 61. It is mainly contended that despite the fact that the Will was stated to have been executed on 11.1.1980, there is no explanation as to why the said document was not registered with the Sub Registrar before testators death on 23.1.1980. 62. This contention, in my view, does not have any substance. According to D.W. 3, as soon as the execution was over on 11.1.1980 Friday, he went to Sub Registrars Office to bring him to the hospital. But, since it was 4.15. p.m., the Sub Registrar did not incline to come to the hospital. The next day was second Saturday being a holiday and other days till 17th Government holidays on account of Pongal. In such a situation, despite the efforts taken by D.W. 3 and D.W.I, the registration could not be done. 63. If really their intention was hot to get the document registered, there was no necessity for them to sent a requisition through testator to the Chief Medical Officer to get the Certificate from the doctor concerned and consequently to obtain a certificate of permission to bring the Sub Registrar to the hospital. It is seen from the evidence that subsequent to 17th, the condition of the testator become worse. Therefore, he was discharged and taken to his house. 64. These things would clearly show that there was a sincere attempt for registration of the Will which was executed by the testator, but due to unavoidable circumstances, the same could not be done, probably for the fact that the parties concerned were more interested in the health of the testator and that was the reason why he was discharged and taken to the house, where he died on 23.1.1980. 65. As pointed out by the Apex Court, the mere registration of the document in the Sub Registrars Office would not by itself be sufficient to hold that the Will is a valid document. On the other hand, it has been clearly established in the present case that there was a sincere attempt made for getting the registration of the Will through proper channel, namely, hospital authorities. But, they could not succeed in that. Under those circumstances, non-registration cannot at all be considered to be a suspicious circumstance. 66. On the other hand, it has been clearly established in the present case that there was a sincere attempt made for getting the registration of the Will through proper channel, namely, hospital authorities. But, they could not succeed in that. Under those circumstances, non-registration cannot at all be considered to be a suspicious circumstance. 66. It is further contended by the counsel for the respondent that the trial Court compared the disputed signature of the testator with the admitted signature put by him in the other documents, which ought not to have been done on the reason that the Court cannot act as an expert, unless there is opinion of the expert obtained. 67. It is further pointed out that it is not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other and the prudent course is to obtain the opinion and assistance of an expert. 68. On the other hand, it is submitted by the counsel for the appellant that the Court has got powers to compare the signatures to find out the truth. 69. Both the counsel would cite the following authorities:— 1. Somasundaram v. Palani ( 1999 (III) C.T.C. 156 ); Kanthirathinam v. Sajjadi Begaum (1989 (1) L.W. 552); Srichand v. State of Maharashtra ( AIR 1967 S.C. 450 ); Muniswamy, R. v. P. Pandiarajan ( 1993 (1) L.W. 186 ); 5. Ami Jothi & Co. v. Sri Shanmugha Trading Co. ( 1998 (1) CTC 432 ). 70. The reading of the above decisions would clearly show that the lower Courts have got the powers under Section 73 of the Evidence Act to compare the disputed signature with the admitted signatures. Accordingly, in my view, the finding given by the trial Court on its comparison with the document, would not be said to be perverse, in as much as the said fact also was taken into consideration as one of the corroborate piece of evidence along with the other materials found available to come to such a conclusion. 71. On the request of the counsel for the respondents, I have also perused the records containing the signature of the testator and compared the signature in Ex. 71. On the request of the counsel for the respondents, I have also perused the records containing the signature of the testator and compared the signature in Ex. B4 and I am able to find that the trial Courts finding that the said signature was put by the testator in the Will is quite correct. 72. In view of the above discussion, I do not find any suspicious circumstance surrounding the execution of the Will. The circumstances pointed out by the lower Appellate Court are not only not suspicious but also normal as pointed out above. 73. On a careful consideration as stated above, the lower Appellate Court is wrong in holding that the circumstances in question are suspicious and in my view, the trial Court is fully justified in holding that the Will is a true and genuine document, which is validly executed by the testator. 74. In the result, the Second Appeals are allowed. The judgment and decree of the lower Appellate Court are set aside and the judgment and decree of the trial Court are restored. No costs.