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2001 DIGILAW 1167 (MAD)

V. Thulasi Doss v. V. Nanda Rao

2001-10-03

P.THANGAVEL, S.JAGADEESAN

body2001
S.Jagadeesan, J.: The appeal has been filed against the judgment of the learned single Judge dated 21.7.1995 in T.O.S.No.12 of 1989. The appellant herein filed the said testamentary suit T.O.S.No.12 of 1989 for the issue of letters of administration in respect of the Will dated 26.2.1982 executed by Vasudeva Rao, the father of the appellant and the respondent. The appellant is the younger brother of the respondent. Under the Will the father had bequeathed the property in favour of the appellant alone and the said Will was a registered one. After the death of the father, the appellant filed the said testamentary suit to obtain the letters of administration. 2. The respondent herein filed a written statement stating that their father did not execute the Will and the Will produced before the Court is a fraudulent document. The father was not of sound mind during the period in which the Will is alleged to have been executed by him. He was not only in a state of unsound mind, but also physically weak. He filed the suit O.S.No.7848 of 1988 for partition before the City Civil Court, Madras and the same is pending. The findings given in O.S.No.4721 of 1983 filed by the father of the parties to the proceeding has no relevance to decide the dispute in this proceeding. Since the property bequeathed to the appellant was purchased from out of the joint family funds, the Will executed by their father is invalid in law and as such the testamentary suit is liable to be dismissed. 3. The learned single Judge after elaborate discussion on the question of law, had agreed with the contentions of the respondent and dismissed the suit finding that the decision in the suit O.S.No.4721 of 1983 filed by the father of the parties herein as well as the findings of the appellate Court in the same proceeding will not be binding on the parties herein, in view of the fact that the validity of the Will was not in question before the Court. In this testamentary suit the primary question is the genuineness of the Will and as such this has to be treated as an independent proceeding and finding out whether the appellant had proved the execution of the Will beyond all suspicious circumstances and on this ground the learned single Judge found that the appellant has not established the execution of the Will beyond all suspicious circumstances, since the testator has not given any share to his elder son, the respondent herein. Further the evidence of the attesting witness cannot be accepted and as such the execution of the Will by the testator itself is doubtful. Aggrieved by the said judgment and decree of the learned single Judge, the appellant has preferred the appeal. 4. It is the contention of the learned counsel for the appellant that the Will was executed on 26.2.1982 and the same was a registered one. When the respondent herein caused disturbance to the testator’s possession and enjoyment, he filed the suit O.S.No.1721 of 1983 on the file of the City Civil Court, Madras, seeking a decree to direct the respondent herein, the defendant in the said suit to vacate and hand over vacant possession of the portion of the building in the first floor of premises at No.31, Venkatachala Mudali Street, Triplicane and also for damages for use and occupation at Rs.100 per month. The said suit was decreed by the judgment and decree on 1.4.1985 and admittedly the appeal and the second appeal preferred by the respondent herein were dismissed. The respondent was fully aware about the execution of the Will by his father from 1983. After the suit was filed by the father was decreed and the first appeal preferred by the respondent was dismissed, the respondent filed the suit for partition. So far as the question of title of their father was concluded by the findings in the suit O.S.No.4721 of 1983 and hence the same cannot be reopened. When once the property held to be the exclusive property of the father, he has got every right to dispose of the same and in this case he has executed the Will in favour of the appellant. When once the property held to be the exclusive property of the father, he has got every right to dispose of the same and in this case he has executed the Will in favour of the appellant. In order to prove the execution of the Will, one of the attestors has been examined and as such the finding of the learned single Judge that the evidence of the attestors cannot be accepted is liable to be set 5. The learned senior counsel for the respondent vehemently contended that the plaint as well as the judgment in the earlier proceedings in O.S.No.4721 of 1983 cannot be relied upon, as the same has no relevance. The learned single Judge had considered this aspect in terms of Sec.70 of the Evidence Act and held that those documents cannot be considered. The learned single Judge had proceeded on the question of suspicious circumstances and found that the witness did not dispose with regard to the attestation of the other witness and as such P.W.2 the attesting witness might not have been in the place of execution of the document. Further, the learned Judge has doubted the attestation of the Will by P.W.2 on the ground that P.W.2 is totally a stranger to the parties. On those two grounds, the learned single Judge has doubted the execution of the Will itself and dismissed the suit. Hence, there is no ground for interference. 6. The following questions arise for consideration: (i) Whether the Will under dispute is a genuine one executed by the testator? (ii) Whether the appellant had proved the execution of the Will in accordance with law? 7. We carefully considered the above contentions of the learned counsel for the appellant. In the suit filed by the testator O.S.No.4721 of 1983 he had specifically stated in paragraph 5 of the plaint that in February, 1984 he had executed his Will and registered the same. It is further stated that on coming to know of the execution and registration of the Will, the respondent herein started to ill-treat his father, the testator, which necessitated to terminate the licence given to the respondent with reference to the portion of the property, which is the subject matter of the testamentary suit. It is further stated that on coming to know of the execution and registration of the Will, the respondent herein started to ill-treat his father, the testator, which necessitated to terminate the licence given to the respondent with reference to the portion of the property, which is the subject matter of the testamentary suit. 7-A. So far as this averment in the plaint regarding the Will is concerned, the respondent in his written statement, in para.7 has stated as follows: “The alleged execution of the so called Will is not a matter for the defendant and there is no reason for the defendant to ill-treat the plaintiff on that score.” Hence, even though the testator had referred to the execution of the Will and the registration of the same, the conduct of the respondent in not denying the same can be taken into consideration, even though the document as such may not be before the Court. Apart from this, in the said suit the testator claimed his exclusive title to the property which was upheld not only by the trial Court but also by the lower appellate Court as well as this Court. In such circumstances, there cannot be any dispute that the property belongs to the testator absolutely. 8. Under the Will he bequeathed the property to the appellant herein. In the Will it is specifically stated that the property is the self-acquired property of the testator and the appellant being a handicapped person, he intends to bequeath the property to him. From this it is clear that the Will contains the reason for the preference of the appellant. 9. A perusal of the judgment of the learned single Judge reveals that the learned single Judge has totally concentrated on the question of law in interpreting Sec.70 of the Evidence Act rather than the facts of the case. When the property is the absolute property of the testator, no one can deny his right to dispose of the same. Only question for consideration will be there should be some reason to exclude the others in case if the Will is in favour of one of the legal heirs in preference to the others. In this case, the Will itself contains the reason and the said reason had not been disputed by the respondent. 10. Only question for consideration will be there should be some reason to exclude the others in case if the Will is in favour of one of the legal heirs in preference to the others. In this case, the Will itself contains the reason and the said reason had not been disputed by the respondent. 10. So far as the suspicious circumstances with regard to the execution of the Will is concerned, in the written statement filed by the respondent, he has stated that during his last days the testator was not in his senses and practically even for walking he had to be assisted. Apart from aside, in the absence of any valid reason. Consequently, the suit filed by the appellant has to be decreed. this, he has also stated that taking advantage of the old age and ill-health of the testator, the appellant has prevailed upon the testator who was only a puppet in the hands of the appellant. Except this, there is no averment with regard to the genuineness of the Will. In our view, the abovesaid averment is bald and vague. The respondent had not given any details with regard to the nature of illness to decide the capacity of the testator or the state of mind of the testator. No medical evidence have been let in to establish the physical condition of the testator. In the absence of any such evidence, it has to be taken that the testator was in good state of mind at the time of execution of the Will especially when the execution of the Will had been mentioned by the testator himself in the suit O.S.No.4721 of 1983 filed by him. Even in the reply of the respondent, he has not come out with the details of the illness suffered by the testator. Hence, we are of the view that the plea of the respondent that the testator was of unsound mind at the time of execution of the Will is not proved. As there is no other suspicious circumstances pleaded and established, we are of the view that the testator was in sound state of mind at the time of execution of the Will. 11. As there is no other suspicious circumstances pleaded and established, we are of the view that the testator was in sound state of mind at the time of execution of the Will. 11. The learned single Judge has held that the execution of the Will has not been properly proved, since both the testators were not examined and the attestor who had been examined did not speak about the attestation by the other witnesses. The statutory requirement for the execution of the Will is that there should be two witnesses. The precedent held by the various Courts, following the principles laid down by the Apex Court is that one of the attesting witnesses has to be examined to prove the execution of the testator. 12. In this case, the appellant had examined P.W.2 who is one of the attestors of the Will. A perusal of the evidence of P.W.2 reveals that the respondent had concentrated unwarranted particulars rather than the essential particulars. P.W.2 had stated in his evidence that an old man and advocate requested him to attest the Will and the Sub-Registrar also asked him to attest the Will, after ascertaining his willingness. Hence, he attested the Will. He further stated that he did not see the appellant herein along with the testator in the Sub-Registrar Office. He also stated that he signed the Will after the executant signed the same before the Sub-Registrar. He emphatically denied the suggestion that the executant did not sign the Will in his presence. From the above statement of P.W.2 it is clear that he attested the Will after the executant signed the same. Hence, there cannot be any doubt that the execution of the Will is established by the attesting witness. 13. The learned single Judge rejected the evidence of P.W.2 and come to the conclusion that the execution had not been proved on the ground that P.W.2 did not speak about the attestation of the Will by the other witness. The requirement of the law to prove the Will is complied with, if one of the attesting witnesses is examined. When that be the case, there is no requirement for the attesting witness who was examined in Court to speak about the other attesting witness, especially in the absence of any cross-examination on this issue. The requirement of the law to prove the Will is complied with, if one of the attesting witnesses is examined. When that be the case, there is no requirement for the attesting witness who was examined in Court to speak about the other attesting witness, especially in the absence of any cross-examination on this issue. When one attesting witness has stated that he attested the Will after the testator signed, it shows that the other attesting witness also signed along with him. Hence, the reasoning of the learned single Judge to reject the evidence of P.W.2, one of the attesting witness cannot be sustained. 14. So far as the other contention of the learned senior counsel for the respondent that the testator has given priority to one of the legal heirs and totally avoided the other son, the respondent herein and this itself is a suspicious circumstance to disbelieve the genuineness of the Will, as already stated, as admitted by the executant himself in the suit filed by him that the testator has given preference to the appellant, since he is a handicapped. Of course there is no evidence with regard to the degree of handicap. The respondent also did not speak about the nature of the handicap suffered by the appellant. The fact remains that the testator had a sympathy for the appellant as he is suffering with certain handicappedness and he may not be able to make a livelihood of himself and he should be provided. Unless it is established that the reasoning of the testator to give preference to the appellant is not correct or with some undue preference, it is not for this Court to go into the question of the circumstance weighed with the testator to give preference to the appellant. 15. P.W.2 had specifically stated in his evidence that the appellant herein was not present at the Sub Registrar’s Office when the testator executed the Will. The absence of the appellant at the time of the execution of the Will by the testator itself is a clear proof that the testator never be a puppet in the hands of the appellant. Further there is no evidence to show that either the advocate or the old man who took the testator to the Sub-Registrar’s Office for the purpose of registration of the Will had acted only at the instance of the appellant. Further there is no evidence to show that either the advocate or the old man who took the testator to the Sub-Registrar’s Office for the purpose of registration of the Will had acted only at the instance of the appellant. Hence, the plea of the respondent that the testator acted as a tool in the hands of the appellant also was not established. 16. So far as the attestation is concerned, it may be worth to refer the recent judgment of another Division Bench of this Court in Corra Vedachalam Chetty v. Janakiraman, (2001)3 C.T.C. 283, which deals with the attesting witnesses who are no more in the following terms: "Under Sec.63 of the Indian Succession Act, the Will, in order to be valid, should contain the signature or the mark of the testator and be attested by two or more witnesses who have seen or received acknowledgement from the testator about his having signed the Will. When the attestors are no more it is wholly impractical to expect any evidence regarding the attestors having seen or received the acknowledgement of the signature of the testator. Such evidence will have to be gathered from the circumstances surrounding the execution of the document and the other circumstances shown to have been in existence. The testator here was an advocate who was practicing in this Court. He was thoroughly familiar with all the requirements of law. He knew very well what the requirements of the valid Will are, he had apparently drafted the document himself. He had taken care to have the document attested by two lawyers known to him. He had made the corrections in the Will and entered the date himself and had signed the Will. The signatures of one of the attestors has been proved by the evidence of his former clerk. Having regard to these facts it is reasonable to infer that the signature of the testator was put on the document in the presence of the attestors and in any event the attestors had received from the testator the acknowledgement of his having signed the Will. The testator even after executing the Will and after an interval of about two months had taken care to have the document registered for which purpose he attended the office of the Sub-Registrar. The testator even after executing the Will and after an interval of about two months had taken care to have the document registered for which purpose he attended the office of the Sub-Registrar. Before the Sub-Registrar he was identified by another lawyer colleague who has signed the document as the person who identified him before the Sub-Registrar. The signature of the testator at the time of registration has been found to be unquestionably that of the testator. That has also been confirmed by the opinion of the hand writing expert." 17. When one of the attesting witnesses signature is identified, then it is more than enough to comply with the formality of proving the signature of the testator. In our view, the attesting witness who was examined need not speak about the other attesting witness, as the learned single Judge held in this case. 18. Further in the case referred to supra, the learned Judges have indicated as to how the Court has to deal with the matters in testamentary cases. To extract the same is as follows: "The testamentary Court is a Court of conscience. It is not a Court of suspicion. It is not the law that, whenever a Will is sought to be proved in the Court, the Court should not start with the presumption that the Will is not genuine, that it is fraudulent and that the person who chooses to probate the Will must remove all chooses to probate the Will must remove all such suspicions even they are not unreal. The object of the probate proceedings is not to render the testamentary document ineffective but to make it effective and render the terms of that Will operative. In doing so, the Court has to take note of the fact that the testator is not available to the Court to state as to whether the document in fact was his or her last Will or as to whether the attestors had signed receiving as acknowledgement from him about the execution of the Will. It is for that reason that the Courts should be cautious while dealing with the evidence placed before them in relation to the execution and attestation, of the Will as also the disposing state of mind of the testator. It is for that reason that the Courts should be cautious while dealing with the evidence placed before them in relation to the execution and attestation, of the Will as also the disposing state of mind of the testator. This need for caution, cannot be exploited by unscrupulous caveators who choose to cull out imaginary suspisions with a view to prevent the legatees under the Will from claiming the benefit thereunder and to render the last Will of the deceased wholly ineffective. In this context, the conduct of the persons who raise the alleged ground for suspision is also to be looked at, to know as to how credible are the grounds for suspisions sought to be raised by such persons. In this case, the suspicion is sought to be raised by a person who is keenly interested in making the Will ineffective and whose conduct is far from one which would inspire confidence in truthfulness of his statements." On the principles laid down above, we have no hesitation to hold that the reasoning of the learned single Judge cannot be sustained. 19. For the reasons stated above, the judgment of the learned single Judge is liable to be set aside and accordingly the same is set aside. The appeal is allowed. However, there will be no order as to costs.