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2008 DIGILAW 4148 (MAD)

V. Veeranan Ambalam v. Periakaruppan @ Jayavelu

2008-11-11

A.SELVAM

body2008
Judgment :- Challenge in this second appeal is to the judgment and decree dated 19.11.1993 passed in Appeal Suit Nos.63 of 1992 by the Principal Subordinate Court, Madurai. 2. The respondents herein as plaintiffs have instituted Original Suit No.42 of 1991 on the file of the District Munsif Court, Melur, for the reliefs of declaration and perpetual injunction, wherein the present appellants have been shown as defendants. 3. The epitome of the plaint is that the suit properties are originally belonged to one Mookkammal @ Ayiammal and she enjoyed the same till her life time. One Palaniyandi Ambalam has married the said Mookkammal @ Ayiammal and both of them have had no issue and therefore, the said Palaniyandi Ambalam with the consent of Mookkammal @ Ayiammal, has married one Ammapillai @ Mookkathal as his second wife. The second wife of Palaniyandi Ambalam has begotten three sons and two daughters and all of them have lived as joint family members and Palaniyandi Ambalam has passed away on 11.03.1980. The said Mookkammal @ Ayiammal has also passed away on 18.12.1989 leaving behind her, the plaintiffs as her legal heirs. After the demise of Mookkammal @ Ayiammal, the plaintiffs have succeeded her estate. The first defendant is the son of Veeranam Ambalam, who is the brother of Palaniyandi Ambalam. The second defendant is the wife of the first defendant. The defendants have demanded partition from the plaintiffs and the plaintiffs have refused to concede the demand of the defendants and due to that the defendants have been making arrangements to disturb the peaceful possession and enjoyment of the plaintiffs by way of denying their title to the suit properties and under the said circumstances, the present suit has been instituted for the reliefs of declaration and perpetual injunction. 4. The contraction of the written statement is that the suit items 1 to 9 are sreethana properties of Mookkammal @ Ayiammal and she purchased a house plot and constructed a house bearing Door No.1/137. The entire suit properties are the separate properties of the said Mookkammal @ Ayiammal. She leased out some items of suit properties for a period of fifteen years in favour of the second defendant. The second defendant has paid lease amount to Mookkammal @ Ayiammal till her demise. The entire suit properties are the separate properties of the said Mookkammal @ Ayiammal. She leased out some items of suit properties for a period of fifteen years in favour of the second defendant. The second defendant has paid lease amount to Mookkammal @ Ayiammal till her demise. On 11.08.1989 she has executed a Will in favour of the second defendant and thereby bequeathed all the suit properties in favour of the second defendant and she died on 18.12.1989 and therefore, the Will dated 11.08.1989 has come into effect. Since the original owner of the suit properties viz., Mookkammal @ Ayiammal has executed the Will dated 11.08.1989 in favour of the second defendant, the plaintiffs are not entitled to get the reliefs sought for in the plaint and therefore, the present suit is liable to be dismissed. 5. In the reply statement filed on the side of the plaintiffs, it is stated that the deceased Mookkammal @ Ayiammal has not executed any Will in favour of anybody, much less on 11.08.1989 in favour of the second defendant. The said Mookkammal @ Ayiammal has met with an accident on 02.04.1989 and the entire expenses have been spent by the plaintiffs 1 & 2. Since the said Mookkammal @ Ayiammal has met with an accident, she got mental illness and very often she used to go away from the house. The alleged will dated 11.08.1989 is nothing but concoction and the defendants are not having any manner of right, title and interest over the suit properties and therefore, the suit may be decreed as prayed for. 6. On the basis of the claims and counter claims made on either side, the trial Court has framed necessary issues and after perpending both the oral and documentary evidence, has dismissed the suit. Against the judgment and decree passed by the trial Court, the plaintiffs as appellants have preferred Appeal Suit No.63 of 1992 on the file of the first appellate Court. The first appellate Court, after hearing both sides and after reappraising the evidence available on record, has allowed the appeal, whereby and whereunder set aside the judgment and decree passed by the trial Court and consequently, decreed the suit as prayed for. Against the judgment and decree passed by the first appellate Court, the present second appeal has been filed at the instance of the defendants as appellants. 7. Against the judgment and decree passed by the first appellate Court, the present second appeal has been filed at the instance of the defendants as appellants. 7. On the side of the appellants/defendants, the following substantial questions of law have been raised for consideration; “a) Whether the lower appellate Court is right in finding that the will has not been properly proved? b) Will not the evidence of DWs.9 & 8 satisfy the requirement of Section 71 of the Indian Evidence Act, to prove the execution and attestation of the will when the only living attesting witness turns hostiles?” 8. Before scrutinising the rival submissions made by either counsel, it would be apropos to look into the necessary averments made in the plaint as well as in the written statement. 9. The sum and substance of the case of the plaintiffs is that one Palaniyandi Ambalam has married the original owner of the suit properties by name Mookkammal @ Ayiammal and both of them have not been blessed with issue and with the consent of the said Mookkammal @ Ayiammal, her husband viz., Palaniyandi Ambalam has married one Ammapillai @ Mookkathal as his second wife and the plaintiffs are the children of Palaniyandi Ambalam and Ammapillai @ Mookkathal. The said Palaniyandi Ambalam has passed away on 11.03.1980 intestate and like wise, his first wife viz., Mookkammal @ Ayiammal has passed away on 18.12.1989 intestate leaving behind her, the plaintiffs as her legal heirs. Since the plaintiffs are the legal heirs of the deceased Mookkammal @ Ayiammal, they are entitled to get the suit properties. The first defendant is the son of one Veeranam Ambalam, who is the brother of the Palaniyandi Ambalam and the second defendant is the wife of the first defendant and the defendants have demanded partition in respect of the suit properties and the plaintiffs have refused the same and due to that the defendants have been making arrangements to disturb the peaceful possession and enjoyment of the suit properties by the plaintiffs by way of denying their title and under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. 10. 10. The main contention urged on the side of the defendants is that the suit properties are the separate properties of the deceased Mookkammal @ Ayiammal and on 11.08.1989 in a sound disposing state of mind, she executed a Will in favour of the second defendant and after her demise, the same has come into effect and therefore, the second defendant is the absolute owner of the suit properties and in which the plaintiffs are not having any semblance of right and therefore, the suit of the plaintiffs is liable to be dismissed. 11. As stated earlier, the trial Court, after considering the rival evidence adduced on either side, has dismissed the suit by holding that the Will dated 11.08.1989 alleged to have been executed by the deceased Mookkammal @ Ayiammal is legally valid. 12. From the averments made in the plaint as well as in the written statement one thing is clear to the effect that both parties have candidly admitted that the suit properties are the separate properties of the deceased Mookkammal @ Ayiammal. It is also an admitted fact that the father of the plaintiffs by name Palaniyandi Ambalam has married Mookkammal @ Ayiammal as his first wife and both of them have not been blessed with issue and therefore, the said Palaniyandi Ambalam has married the mother of the plaintiffs as his second wife. 13. The only point that comes for consideration in the present second appeal is as to whether the Will dated 11.08.1989 alleged to have been executed by the deceased Mookkammal @ Ayiammal has been duly proved on the side of the defendants. 14. Before excogitating the above legal aspect, it has become indefeasible to perorate the method of attestation and proof of execution of a Will. 14. Before excogitating the above legal aspect, it has become indefeasible to perorate the method of attestation and proof of execution of a Will. Section 3 of the Transfer of Property Act, 1882 deals with attestation and the same reads as follows; “Attested”, in relationship to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time and not particular form of attestation shall be necessary.” 15. The pith and substance of the words “attestation” means that there shall be two or more witnesses and each of them must see sign or affix of the maker of instrument and the attestors must put their signatures in the presence of executant and further it shall not be necessary that more than one of such witnesses shall have been present at the same time and more over no specific form of attestation shall be necessary. 16. Second 63(c) of the Succession Act, 1925, deals with execution of unprivileged Wills and the same reads as follows; “Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:- a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. 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 some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.” 17. From the close reading of the said section, the following things are very much essential so as to prove the execution of a Will; a) The testator should sign or affix his mark to the Will or the same shall be signed by some other person in the presence of the testator and also by his direction. b) The signature or mark of the testator or the signature of the person signing for him must be placed that it shall appear that the testator who intend to give effect to the writing of a Will. c) The Will must be attested by two or more witnesses and each of whom must see the signature or thumb impression of the executant and each of the witnesses should sign the Will in the presence of the testator. 18. Section 68 of the Indian Evidence Act, 1872 deals with proof of execution of document required by law to be attested and the same reads as follows; “If a document is required by law to be attested, it shall no 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.” 19. From the close reading of the provision of Section 68 of the Indian Evidence Act, 1872, a document which is required by law to be attested, should be proved only by way of examining one of the attesting witnesses and otherwise, the same shall not be used as evidence. 20. With these legal backdrops, the Court has to analyze as to whether the defendants have proved the due attestation, execution and proof of the Will dated 11.08.1989 alleged to have been executed by the deceased Mookkammal @ Ayiammal in favour of the second defendant. The Will dated 11.08.1989 has been marked as Ex.B2. In Ex.B2, two persons namely S.R.Ayyanan and S.K.Raman have put their signatures as attesting witnesses. 21. The learned counsel appearing for the appellants/defendants has emphatically contended that all the suit properties are originally belonged to the deceased Mookkammal @ Ayiammal, first wife of Palaniyandi Ambalam and the first defendant is the son of the brother of the said Palaniyandi Ambalam and the second defendant is the wife of the first defendant. 21. The learned counsel appearing for the appellants/defendants has emphatically contended that all the suit properties are originally belonged to the deceased Mookkammal @ Ayiammal, first wife of Palaniyandi Ambalam and the first defendant is the son of the brother of the said Palaniyandi Ambalam and the second defendant is the wife of the first defendant. The said Mookkammal @ Ayiammal has given some items of suit properties to the second defendant on the basis of lease and due to her senility, and also considering the relationship between her and defendants, she lived in the house of the defendants and out of her own volition and also in a sound disposing state of mind, she executed Ex.B2 in favour of the second defendant and in Ex.B2, the persons namely S.R.Ayyanan and S.K.Raman have put their signatures as attesting witnesses and the said S.R.Ayyanan has passed away and therefore, the defendants have chosen to examine the other attesting witness viz., S.K.Raman and he has been examined as DW6, but, unfortunately he has not supported the contention of the defendants, but, the concerned Sub-Registrar and Scribe have been examined as Dws.8 & 9 and both of them have uniformly spoken about the due execution, attestation of Ex.B2 and as per the provision of Section 71 of the Indian Evidence Act, 1872, the Court can unflinchingly come to a conclusion that Ex.B2 has been proved by the defendants and since Ex.B2 has been proved by the defendants, the second defendant is having absolute right, title and interest over the suit properties and the trial Court, after analyzing all the evidence available on record, has rightly non-suited the plaintiffs, but, the first appellate Court without invoking the provision of Section 71 of the said Act, has erroneously decreed the suit and therefore, the judgment and decree passed by the first appellate Court are liable to be interfered with. 22. 22. In order to remonstrate the argument advanced by the learned counsel appearing for the appellants/defendants, the learned counsel appearing for the respondents/plaintiffs has also equally contended that all the suit properties are originally belonged to the deceased Mookkammal @ Ayiammal, first wife of Palaniyandi Ambalam and since both of them have not been blessed with issue, the said Palaniyandi Ambalam has married the mother of the plaintiffs as his second wife and both Palaniyandi Ambalam and Mookkammal @ Ayiammal have passed away and the plaintiffs are the legal heirs of the deceased Mookkammal @ Ayiammal and they have succeeded the estate of the deceased Mookkammal @ Ayiammal and it is false to contend that the deceased Mookkammal @ Ayiammal has executed Ex.B2 in favour of the second defendant and further one of the attestors by name S.K.Raman has been examined as DW6 and he has not proved the due execution as contemplated under Sections 3 of the Transfer of Property Act, 1882 as well as under Section 63(c) of the Succession Act, 1925 and since the defendants have not proved the due attestation of Ex.B2, the Court cannot invoke the provision of Section 71 of the Indian Evidence Act, 1872 and the trial Court, without considering the over all effect of the evidence of DW6, has erroneously dismissed the suit, but, the first appellate Court, after poring the entire evidence meticulously, has rightly come to the conclusion that Ex.B2 has not been duly and legally proved by the defendants and ultimately decreed the suit as prayed for and therefore, the judgment and decree passed by the first appellate Court are perfectly correct and the same need no interference. 23. One of the attestors of Ex.B2 by name S.K.Raman has been examined as DW6. For better appreciations and also for easy reference, his entire chief examination is described hereunder in verbatim; 24. From the close reading of the evidence given by DW6, the Court can easily ken that DW6 has adduced evidence to the effect that on 11.08.1989 the deceased Mookkammal @ Ayiammal has executed Ex.B2 in favour of the second defendant. DW6 has not proved the due attestation of Ex.B2 as contemplated under Section 3 of the Transfer of Property Act, 1882 and also under Section 63(c) of the Succession Act, 1925. DW6 has not proved the due attestation of Ex.B2 as contemplated under Section 3 of the Transfer of Property Act, 1882 and also under Section 63(c) of the Succession Act, 1925. Since attestation of Ex.B2 has not been proved on the side of the defendants, there is no incertitude in coming to a conclusion that Ex.B2 has not been legally proved by the defendants. 25. The learned counsel appearing for the appellants/defendants has advanced his entire argument mainly on the basis of the provision of Section 71 of the Indian Evidence Act, 1872 and the same reads as follows; “If the attesting witness denied or does not recollect the execution of the document, its execution may be proved by other evidence.” 26. From the close reading of the provision of Section 71 of the said Act, it is made clear that if any attesting witness denies or he is not able to recollect the execution of a particular document, its execution can be proved by way of examining other connected witnesses. 27. In the instant case, DW6 is one of the attestors of Ex.B2 and he has clinchingly stated that Ex.B2 has been executed by Mookkammal @ Ayiammal on 11.08.1989 in favour of the second defendant. But, as taunted earlier, he has not given proper evidence with regard to attestation of Ex.B2. Therefore, it is very clear that DW6 has clearly spoken about execution of Ex.B2 and since he has clearly spoken about the execution of Ex.B2, it is needless to say that the provision of Section 71 of the Indian Evidence Act, 1872 cannot be attuned in the present case. 28. The first and foremost substantial question of law raised on the side of the appellants/defendants is as to whether the first appellate Court is right in giving a finding to the effect that Ex.B2 has not been properly proved. It has already been expounded to the effect that Ex.B2 has not been legally proved by the defendants. Therefore, it is quite clear that the first and foremost substantial question of law raised on the side of the appellants/defendants is not legally having substance. 29. It has already been expounded to the effect that Ex.B2 has not been legally proved by the defendants. Therefore, it is quite clear that the first and foremost substantial question of law raised on the side of the appellants/defendants is not legally having substance. 29. The second substantial question of law raised on the side of the appellants/defendants is as to whether the evidence of DWs.8 & 9 would satisfy the requirement of Section 71 of the Indian Evidence Act, 1872 so as to prove the due execution and attestation of Ex.B2. 30. The then Sub-Registrar of Melur has been examined as DW8 and he speaks about the enquiry done by him before registering Ex.B2 and further he speaks about the role of identifying witnesses and further it is quite natural that DW8 cannot speak about the due execution and attestation of Ex.B2. The scribe, who has written Ex.B2, has been examined as DW9. He would say in his evidence that he has written Ex.B2 and read over the same to the executant and other connected persons. The executant has put her thumb impression in Ex.B2 and the same has been seen by attesting witnesses and further he would say in his evidence during the course of cross-examination that his role is very very limited to the extent of writing of Ex.B2 and further he has categorically admitted that he has not put his signature in Ex.B2 as scribe as well as one of the attestors. 31. The learned counsel appearing for the appellants/defendants has drawn the attention of the Court to the decision reported in 2006 (I) CTC 300 (Supreme Court of India) (Mathew Oommen Vs. Suseela Mathew) wherein the Honourable Apex Court has held that a scribe can also be an attesting witness and there is no legal prohibition preventing scribe from attesting document scribed by him. 32. In the instant case, as noted down earlier, DW9 has simply written Ex.B2 and his role is limited to the extent of writing the same. In Ex.B2, DW9 has not put his signature as scribe as well as one of the attesting witnesses. Therefore, the role of DW9 cannot be branded as scribe as well as attestor of Ex.B2. 33. In the instant case, as noted down earlier, DW9 has simply written Ex.B2 and his role is limited to the extent of writing the same. In Ex.B2, DW9 has not put his signature as scribe as well as one of the attesting witnesses. Therefore, the role of DW9 cannot be branded as scribe as well as attestor of Ex.B2. 33. It has already been pointed out that DW6 one of the attestors of Ex.B2 has clearly stated to the effect that on 11.08.1989 the deceased Mookkammal @ Ayiammal has executed Ex.B2 in favour of the second defendant, but, he has not given requisite evidence so as to prove the due attestation of Ex.B2. Since DW6 has spoken about the execution of Ex.B2, the appellants/defendants cannot seek aidence of the provision of Section 71 of the Indian Evidence Act, 1872. 34. The learned counsel appearing for the appellants/defendants in support of his contention with regard to Section 71 of the Indian Evidence Act, 1872, has accited the following decisions; a) The first and foremost decision is reported in 2003(1) CTC 308 (Supreme Court of India) (Janki Narayan Bhoir Vs. Narayan Namdeo Kadam) wherein the Honourable Apex Court has held that it is clear from the language of Section 71 of the Indian Evidence Act, 1872 that if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence and further it has been held that Section 71 of the Evidence Act, 1872 can only be requisitioned when the attesting witnesses who have been called, failed to prove the execution of the Will by reason of either denying their own signatures or denying the signature of the testator or having no recollection as to the execution of the document. This Section has no application when one attesting witness has failed to prove the execution of the Will and other attesting witnesses were available who could prove execution if they were called. b) The second decision is reported in 2005(1) CTC 11 (Janaki Devi Vs. R.Vasanthi and others) wherein also this Court has held that Section 71 of the Indian Evidence Act, 1872 is only to give assistance and come to rescue of a party who has taken steps to get attesting witness to give evidence, but he failed or such witness denied or failed to recollect the execution of the Will. 35. R.Vasanthi and others) wherein also this Court has held that Section 71 of the Indian Evidence Act, 1872 is only to give assistance and come to rescue of a party who has taken steps to get attesting witness to give evidence, but he failed or such witness denied or failed to recollect the execution of the Will. 35. The learned counsel appearing for the respondents/plaintiffs has also befittingly drawn the attention of the Court to the decision reported in AIR 2007 Supreme Court 1975 (Benga Behera & another Vs. Braja Kishore Nanda & others) wherein the Honourable Apex Court has held that the concerned attesting witness has neither denied the execution nor failed to recollect the execution of the Will and under the said circumstances, the provision of Section 71 of the Evidence Act, 1872 is not applicable and the same deals with a situation where the attesting witness denies or does not recollect execution of the document and only in that eventuality, the documents execution may be proved by other evidence. 36. From the conjoint and close reading of the decisions referred to supra, it is very clear that Section 71 of the Indian Evidence Act, 1872 can be invoked in a situation where attesting witness of a document denies or does not recollect its execution. If one attesting witness has clearly deposed about the execution of a particular document, the party who relies upon the same cannot seek the aidence of the provision of Section 71 of the said Act so as to prove the due execution and attestation. 37. Even at the risk of jarring repetition, in the instant case, DW6, one of the attestors of Ex.B2, has clearly deposed evidence to the effect that Ex.B2 has been executed by the deceased Mookkammal @ Ayiammal on 11.08.1989 in favour of the second defendant. But, as contemplated under the provision of Section 3 of the Specific Relief Act, 1882 and also under Section 63 (c) of succession Act, 1925, DW6 has not proved the valid attestation of Ex.B2. Since DW6 has clearly spoken about the due execution of Ex.B2, it is needless to say that the appellants/defendants are not entitled to invoke the provision of Section 71 of the Indian Evidence Act, 1872 on the basis of the evidence given by DWs.8 & 9. 38. It has already been pointed out that Ex.B2 has not been legally proved. Since DW6 has clearly spoken about the due execution of Ex.B2, it is needless to say that the appellants/defendants are not entitled to invoke the provision of Section 71 of the Indian Evidence Act, 1872 on the basis of the evidence given by DWs.8 & 9. 38. It has already been pointed out that Ex.B2 has not been legally proved. The sheet anchor of the case of the appellants/defendants viz., Ex.B2 goes without its legal proof. Since Ex.B2 is not a valid document, the second defendant is not having title to the suit properties. The plaintiffs are the children of Palaniyandi Ambalam born through his second wife and they are the legal heirs of the deceased Mookkammal @ Ayiammal and therefore, the plaintiffs are entitled to get the suit properties. The trial Court, without considering the legal impediment which exists in the case of the appellants/defendants, has erroneously decreed the suit, but the first appellate Court, after making elaborate and ingenious discussion, has rightly decreed the suit as prayed for. 39. In view of the foregoing enunciation of both the factual and legal aspects, it is very clear that the judgment and decree passed by the first appellate Court are perfectly correct and the same need no interference and further the argument advanced by the learned counsel appearing for the appellants/defendants does not hold good, whereas the argument advanced by the learned counsel appearing for the respondents/plaintiffs is really having effective force and further all the substantial questions of law raised on the side of the appellants/defendants are not legally and factually sustainable and altogether the present second appeal deserves dismissal. 40. In fine, this second appeal deserves dismissal and accordingly is dismissed without costs. The judgment and decree passed in Appeal Suit No.63 of 1992 by the Principal Subordinate Court, Madurai are confirmed.