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2006 DIGILAW 2142 (MAD)

Rengasamy v. Rugmini & Others

2006-08-24

S.TAMILVANAN

body2006
Judgment :- 1. This Civil Revision Petition has been filed by the petitioner/5th defendant against the judgment and decree dated 12.10.2004 made in C.M.A No. 5 of 2004 on the file of the Subordinate Judge, Kuzhithurai, reversing the Order and decretal order dated 13.1.2004 passed in I.A. No. 759 of 1998 in O.S. No. 37 of 1990 on the file of the Principal District Munsif, Kuzhithurai. 2. The short facts of the case is as follows: The Suit in O.S. No. 37 of 1990 was filed by the legal representatives of one Nesamani for partition and separate possession against the brother of the deceased Nesamani and Ammalu Nadathi, the mother of the defendants 1 to 5 and the deceased Nesamani. It has been admitted that after preliminary decree for partition was passed, the said Ammalu Nadathi passed away. The 5th defendant one of the sons of the deceased, based on a Will alleged to have been executed by the said Ammalu Nadathi filed a Petition to record that he was the sole legal respective of the deceased, Ammalu Nadathi. 3. The Trial Court allowed the Petition filed by the petitioner, 5th defendant against which the respondents 1 to 3 herein, being the plaintiffs in the Suit preferred an Appeal before the Court of Subordinate Judge, Kuzithurai, which reversed the finding of the Court below and allowed the Civil Miscellaneous Appeal, against which the present Civil Revision Civil has been preferred. 4. The learned counsel appearing for the revision petitioner would contend that in order to prove the Will, under Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act, P.Ws.1 to 4 were examined. 5. 4. The learned counsel appearing for the revision petitioner would contend that in order to prove the Will, under Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act, P.Ws.1 to 4 were examined. 5. Section 63(c) of the Indian Succession Act, 1925, reads as follows: (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator, or has received from the testator a personal acknowledgement 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 particular form of attestation shall be necessary." Section 68 of the Indian Evidence Act, 1872 reads as follows: “Proof of Execution of document required by law to be attested.— 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." Therefore, it is not disputed by both the learned counsel that in order to prove the Will should have been attested by two or more witnesses and atleast one witness had been examined to prove the execution of the Will. 7. In the instant case, admittedly one of the witnesses to the Will was not alive. The other attester namely, Appavu Nadar has deposed in his chief­-examination that he signed as a witness in the Will and that, he saw Ammalu Nadathi affixing her left hand thumb impression on the Will. But, in the cross-examination, he has stated that he had not signed the Will and he did not see Ammalu Nadathi affixing her thumb impression on the Will. But, in the cross-examination, he has stated that he had not signed the Will and he did not see Ammalu Nadathi affixing her thumb impression on the Will. The scribe of the Will one Johnson was examined as P.W.2 who has deposed in his evidence that he wrote the alleged Will on behalf of Ammalu Nadathi, but in the cross-examination, he would depose that he had never seen the said Ammalu Nadathi prior to the date of execution of the Will. 8. The Court below has given a finding in the impugned judgment passed in the C.M.A. that even the revision petitioner, who was examined as P.W.1 had deposed that he did not accompany his mother, Ammalu Nadathi while the alleged Will was executed by her. The Sub-Registrar who registered the Will was examined as P.W.4 and he has deposed in his chief-examination that the Will was registered at Karur Sub-Registrar's Office by him on 31.1.1992, while he was the Sub-Registrar of the said Office. In his cross-examination, he has admitted that he had never seen Ammalu Nadathi prior to the execution that he had never seen Ammalu Nadathi prior to the execution of the Will and he could not correctly say whether the person signed in the Will was Ammalu Nadathi or not. Therefore, as contended by the learned counsel for the respondents, the revision petitioner, being the profounder of the Will has to prove the factum of execution of the Will, as per Section 68 of the Indian Evidence Act that it was executed by the Ammalu Nadathi. 9. The learned counsel for the revision petitioner would contend that except the respondents 1 to 3, all others have not disputed the genuineness of the Will, though they are also defendants in the Suit and in case, if the Will is accepted, it will also proportionately reduce the share of the said defendants/respondents. Per contra, the learned counsel for the revision petitioner would contend that the other respondents 4 to 7 are brothers and they are in one group. The plaintiffs and being the legal representative of the deceased Nesamani belongs to the other group and therefore, the respondents 4 to 7 did not raise any objection against the execution of the alleged Will. The plaintiffs and being the legal representative of the deceased Nesamani belongs to the other group and therefore, the respondents 4 to 7 did not raise any objection against the execution of the alleged Will. The learned counsel further contended that though the revision petitioner has produced the registered Will in support of his claim, even he has not stated that he did not accompany Ammalu Nadathi to the Registrar's Office and that he did not see the execution of the Will and the testator and the attesters signing the will. The evidence of P.W.1 to 4 would not show that Ammalu Nadathi, had executed the Will while she was in a sound state of mind, as contemplated under Section 63 of the Indian Succession Act. 10. In support of his contention, the learned counsel cited the decisions Janaki Narayan Bhoir v. Naryan Namdeo Kadam, 2003 (1) CTC 308 and in N. Kamalam (Dead) and another v. Ayyasamy and another, 2002 (1) LW 460. 11. The Honourable Supreme Court of India has held in the decision Janaki Narayan Bhoir v. Naryan Namdeo Kadam, 2003 (1) CTC 308, that as per Section 68 of the Evidence Act, 1872, ‘Will' requires attestation by two or more witnesses. It is enough even if one of the attesting witnesses is examined. However, such single attesting witness so examined should be in a position to prove the due execution of the Will. If the single attester so examined did not see the other attesting witness singing the Will, his evidence would not be sufficient to prove the Will, since the Will requires atleast two attesters, as statutory requirement for proper execution of the Will. 12. In the same decision it has been held thus: “On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act with Section 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the Will 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. 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 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 under Section 63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution 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 under Section 63 of the Succession Act." 13. The Honourable Supreme Court has held in the decision in N. Kamalam (Dead) and another v. Ayyasamy and another, 2002 (1) LW 460 as follows: "The latin expressions 'onus probandi' and `anhno attestandi' are the two basic features in the matter of Civil Court's exercise of testamentary jurisdiction. Whereas `onus probandi' lies in every case upon the party propounding a Will – the expression `animo attestandi' means and implies animus to attest; to put it differently and in common parlance it means intent to attest. As regards the latter maxim, the attesting witness must subscribe with the intent that the subscription of the signature stands by way of a complete attestation of the Will and evidence is admissible to show whether such was the intention or not. For proper appreciation, Section 3 of the Transfer of property Act, in particular, the me attributed to the word "attested" ought to be noticed." “Turning on to the former expression `onus probandi', it is now a fairly well settled principle that the same lies in every case upon the party propounding the Will and may satisfy the Court's conscience that the instrument as propounded is that last will of a free and capable testator, meaning thereby obviously that the testator, at the time when he scribed his signature on to the Will, had a sound and disposing state of mind and memory and ordinarily however, the onus is discharged as regards the due execution of the Will if he propounder leads evidence to show that the Will bears the signature and mark of the testator and that the Will is duly attested. This attestation however, shall have to be in accordance with Section 68 of the Evidence Act which requires that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution and the same is so however, in event of there being an attesting witness alive and capable of giving the evidence. The law is also equally well-settled that in the event of there being circumstances surrounding the execution of the Will, shrouded in suspicion, it is the duty paramount on the part of the propounder to remove that suspicion by leading satisfactory evidence. 14. The law is also equally well-settled that in the event of there being circumstances surrounding the execution of the Will, shrouded in suspicion, it is the duty paramount on the part of the propounder to remove that suspicion by leading satisfactory evidence. 14. Therefore in order to establish the claim based on the Will, the revision petitioner herein has to prove the execution of the Will as contemplate under Section 63 of the Indian Succession Act and Section of the Indian Evidence Act. 15. Here in this case, one of the attesters was not alive on the date of proving the Will and it could have been proved by the evidence of the other attester. But as per the evidence of P.W.3 in the cross-examination, he had not seen Ammalu Nadathi signing the Will. Even P.W.1 had not accompanied Ammalu Nadathi to the Registrar's Office. Similarly, as per his evidence of the other witnesses, they had not seen the testator and the attesters signing the Will. Therefore, I am of the view that the execution of the alleged Will by the Ammulu Ammal has not been proved as set out by the Court below. As there is no illegality in the order passed by the Court below, in my view, the Petition filed under Article 227 of the Constitution of India has no merits, and as there is no illegality or error in the order passed by the Court below, this Court can not interfere with the findings of the Court below. 16. In the result, the Civil Revision Petition is dismissed, confirming the order passed by the Court below. There is no order as to costs. Consequently, connected C.M.P. is closed.