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2010 DIGILAW 4343 (MAD)

Prabakar @ Babuji v. Shyamala

2010-09-28

R.SUBBIAH

body2010
Judgment :- 1. The unsuccessful plaintiff in both the courts below is the appellant herein and he filed this Second Appeal aggrieved over the decree and judgment dated 30.09.2005 passed by the learned Principal District Judge, Chengalpattu, in A.S.No.38 of 2004, whereby the decree and judgment dated 05.03.2004 passed by the learned Subordinate Judge, Tiruvallur, in O.S.No.53 of 1994, were affirmed. 2. The appellant herein filed the suit in O.S.No.53 of 1994 on the file of Sub Court, Tiruvallur, against the respondents as defendants for a declaration that the plaintiff is the absolute title holder with regard to the suit schedule mentioned properties; for a permanent injunction restraining the 1st defendant and her men from interfering with the plaintiffs peaceful possession and enjoyment over the suit items; and for a permanent injunction restraining the 3rd defendant from effecting transfer of patta in the name of the 1st defendant or her nominees. 3. The case of the plaintiff, in brief, is as follows: The suit properties belonged to one Govinda Babu, who got the same pursuant to a partition between himself and his brothers. The plaintiff is none other than his eldest brothers son. Govinda Babu, a bachelor, was the managing partner in "Ashok International" firm and the plaintiff used to help and assist him in all walks of his life and out of love and affection, Govinda Babu nominated the plaintiff in the insurance policies, which were taken by him, and apart from that, he allowed the plaintiff to run a touring cinema theatre and also he was made a member of Cosmopolitan Club by showing him as the foster son of Govinda Babu. While so, the 1st defendant, who was a side actress and a divorced woman, came into contact with the said Govinda Babu, which resulted in the marriage in 1979, but they had no issue and she failed to discharge her duties as his wife and she led her life on her own, in spite of her husbands repeated advice. There were frequent quarrels between the 1st defendant and her husband. In the said situation, Govinda Babu, in order to safeguard the properties, executed a Will dated 15.06.1992 in favour of the plaintiff while he was in a sound and disposing state of mind. Thereafter, on 15.12.1992, the said Govinda Babu was brutally murdered, in which the 1st defendant along with her driver was charge sheeted. In the said situation, Govinda Babu, in order to safeguard the properties, executed a Will dated 15.06.1992 in favour of the plaintiff while he was in a sound and disposing state of mind. Thereafter, on 15.12.1992, the said Govinda Babu was brutally murdered, in which the 1st defendant along with her driver was charge sheeted. Only the plaintiff conducted the funeral obsequies of Govinda Babu. After the death of Govinda Babu, by accepting the Will, the plaintiff is in possession and enjoyment over the suit properties and when he paid kist for the properties, the Revenue authorities refused to receive the same pursuant to the influence made by the 1st defendant. Further, the 1st defendant made attempts to interfere with the plaintiffs possession of the suit properties and when she tried to transfer the patta in her name, the plaintiff filed an objection and as such, he impleaded the Tahsildar as the 3rd defendant in the suit. By virtue of the Will executed by the late Govinda Babu, except the plaintiff, none else has any right over the suit properties. Since the late Govinda Babu had executed an agreement of sale in favour of the 2nd defendant with regard to item No.5, he has been impleaded as the 2nd defendant in the suit. Hence, the suit has been filed for the reliefs as stated supra. 4. The case of the plaintiff was resisted by the 1st defendant by stating that the relationship between herself and her husband was cordial and she denied the execution of the alleged Will. She further stated that the Will was a fabricated one in order to grab the properties of Govinda Babu after his death. Moreover, some of the properties mentioned in the Will were already settled to this defendant by way of settlement deeds by her husband. It is, no doubt, the driver murdered Govinda Babu and there is every reason to believe that the plaintiff and his brothers had instigated the driver to murder not only Govinda Babu but also this defendant. Moreover, the Will has not been probated and hence, it has not been relied on by the plaintiff. Thus, she prayed for the dismissal of the suit. 5. Moreover, the Will has not been probated and hence, it has not been relied on by the plaintiff. Thus, she prayed for the dismissal of the suit. 5. The 2nd defendant filed a written statement stating that he had entered into an agreement of sale on 30.11.1992 in respect of item 5 of the suit property and had paid the entire consideration to the late Govinda Babu, who made an endorsement to that effect and pursuant to which, possession of the said property was delivered to the 2nd defendant and he is in exclusive possession of the same. Subsequent to the Will, he filed a suit in O.S.No.274 of 1993 as against the plaintiff as well as the 1st defendant, who are the rival claimants to the property relating to the agreement and he is ready and willing to take a sale deed from the person, who establishes title before the Court. 6. On the said pleadings, the trial court framed five issues and on the side of the plaintiff, he examined himself as P.W.1 besides examining six witnesses as P.Ws.2 to 7 and marked Exs.A-1 to A-56 and on the side of the defendants, the 1st defendant examined herself as D.W.1 besides examining one Assistant Director, Forensic Science Department, as D.W.2 and marked Exs.B-1 to B 28. The trial court, after considering the evidence both oral and documentary, dismissed the suit, negativing the case put forth by the plaintiff that he was the foster son of late Govinda Babu and that the Will was not proved. Aggrieved by the said judgment, the plaintiff filed an appeal in A.S.No.38 of 2004 before the Principal District Court, Chengalpattu and the appellate court also dismissed the appeal by confirming the decree and judgment of the trial court. Being aggrieved by the said judgment, the plaintiff has filed the present second appeal. 7. At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration: (1) Whether the courts below are correct in law in disbelieving Ex.A-7 Will especially when the same has been proved in accordance with the provisions of Section 69 of the Indian Evidence Act ? (2) Is not the first respondent herein estopped from denying the execution of the Will Ex.A-7 especially when she has not denied the same in the proceedings under Exs.A-47 and A-48 ? (2) Is not the first respondent herein estopped from denying the execution of the Will Ex.A-7 especially when she has not denied the same in the proceedings under Exs.A-47 and A-48 ? (3) Whether the courts below are correct in law in non-suiting the appellant especially in the light of overwhelming evidence both oral and documentary produced on his side to prove the execution of Ex.A-7 Will, the circumstances surrounding the execution and the reason for bequeathing considerable property on the appellant ? 8. Learned Senior counsel for the appellant/plaintiff would submit that the documents filed on the side of the appellant would show that the appellant had been looking after the business affairs and agricultural operations of late Govinda Babu and the appellant was treated as his foster son. The fact that the late Govinda Babu had appointed the appellant as the nominee in the LIC policies and also the fact that the late Govinda Babu made the appellant as the member of the Cosmopolitan Club by issuing a letter dated 01.10.1982 marked as Ex.P-55 stating the appellant as his foster son, which would strongly prove the case of the appellant that he was in close association with the late Govinda Babu. The fact that the 1st respondent/1st defendant had been charge sheeted along with the driver in respect of the murder of her husband, would show that there was a strained relationship between the 1st respondent and the late Govinda Babu. But, the courts below, without considering these aspects, rejected the case of the appellant. Further, the courts below, on an erroneous appreciation of evidence, came to a conclusion that the Will was not proved. Attacking the said findings of the courts below, the learned senior counsel for the appellant submitted that the lower appellate court, having observed that the first part of the requirement under section 69 of the Indian Evidence Act in proving the Will was complied with by the appellant by examining the relatives of the attesting witnesses since the attestors were no more at the time of adducing evidence, erred in coming to the conclusion that the other part of section 69 was not proved by the appellant, which is not sustainable. Further, the learned senior counsel submitted that though the handwriting expert (D.W.2) was examined to disbelieve the Will, his opinion cannot be the basis to come to a conclusion and it could be taken as one of the circumstances; but, in the instant case, various circumstances would show that the late Govinda Babu had closely associated with the appellant, whereas the fact that the 1st respondent was charge-sheeted for the murder of her husband would show that there was a justification in writing a Will in favour of the appellant by Govinda Babu. Thus, the learned senior counsel submitted that the findings of the courts below for disbelieving the Will are totally perverse and the same are liable to be set aside and in support of his contentions, the learned senior counsel has relied on the decisions reported in SURENDRA PAL ..vs.. SARASWATI ( AIR 1974 SC 1999 ), HINDU COMMUNITY IN GENERAL AND CITIZENS OF GOBICHETTIPALAYAM SENNIAPPA CHETTIAR AND ANOTHER ..vs.. THE COMMISSIONER, HR & CE, MADRAS (2005(3) CTC 151) and NAVAL KISHORE ..vs.. D.SWARNA BHADRAN ( 2008(1) CTC 97 ). 9. Combating the said submissions, the learned senior counsel for the 1st respondent/1st defendant submitted that in the plaint, the appellant/plaintiff had not signed in each page and he put his signatures in the last page only, that too, under the list of documents column and the verification column. Therefore, the courts below ought to have dismissed the suit in limine on this ground alone. By inviting the attention of this Court to the evidence of P.Ws.and D.Ws., the learned senior counsel demonstrated various suspicious circumstances to show that the Will might not have been executed by Govinda Babu. Mere proving the execution of the Will alone is not sufficient and there is a duty cast upon the appellant to remove the suspicious circumstances surrounding the Will. But, in the instant case, the appellant had miserably failed to remove the said suspicious circumstances. Therefore, the courts below correctly held that the Will might have been prepared for the purpose of this case and dismissed the suit. The learned senior counsel further submitted that D.W.2, who was a handwriting expert, had clearly adduced in his evidence that the signature found in the Will was totally different from the admitted signatures of the late Govinda Babu. The learned senior counsel further submitted that D.W.2, who was a handwriting expert, had clearly adduced in his evidence that the signature found in the Will was totally different from the admitted signatures of the late Govinda Babu. By accepting the said piece of evidence of D.W.2, the courts below dismissed the suit. Therefore, there is no need to take a different view at the stage of second appeal since there is no substantial question of law involved in this case. In support of his contentions, the learned senior counsel has also relied upon various decisions reported in H.VENKATACHALA ..vs.. B.N.THIMMAJAMMA ( AIR 1959 SC 443 ), ANIL KAK ..vs.. KUMARI SHARADA RAJE ( (2008) 7 SCC 695 ), RUR SINGH ..vs.. BACHAN KAUR (2009) 11 SCC 1 ), YUMNAM ONGBI TAMPHA IBEMA DEVI ..vs.. YUMNAM JOYKUMAR SINGH ( (2009) 4 SCC 780 ) and RAMACHANDRA MARTHANDAM ..vs.. LINGA VIJAYAN ( 2010 (4) CTC 385 ). 10. Heard the learned counsel for the parties and perused the materials available on record. 11. It is not in dispute that the suit properties belonged to one late Govinda Babu and the appellant is the brothers son of Govinda Babu. The said Govinda Babu was leading a wayward life till his mid 40s and the appellant had been looking after the business affairs as well as the agricultural operations of Govinda Babu and out of love and affection, Govinda Babu was treating the appellant as his adopted son. Govinda Babu, who was also doing business in the cinema industry, came into contact with the 1st respondent, the side actress and a divorced woman, and subsequently he married her at his 56 years. But the 1st respondent failed to take care of Govinda Babu and she was leading the life on her own desire and she did not mend her ways in spite of Govinda Babus repeated advice. In the said situation, on 15.06.1992, the said Govinda Babu executed a Will Ex.A-1 in favour of the appellant and subsequently on 15.12.1992, he was brutally murdered and in the criminal case, the 1st respondent and the driver of Govinda Babu were arraigned as accused. The appellant, after conducting the last rites of Govinda Babu and by accepting the Will, continued to be in possession and enjoyment of the suit properties. 12. The appellant, after conducting the last rites of Govinda Babu and by accepting the Will, continued to be in possession and enjoyment of the suit properties. 12. A careful reading of the evidence adduced on his side would show that the appellant has putforth his case on two folds; firstly, Govinda Babu was treating him as his adopted son and secondly, there was no cordial relationship between Govinda Babu and the 1st respondent and in order to safeguard the properties, the Will Ex.A-1 dated 15.06.1992 was executed in his favour. On the contrary, it is the case of the 1st respondent that herself and her husband Govinda Babu had happily led the married life and Govinda Babu never treated the appellant as his adopted son. Since Govinda Babu had no issue, the appellant was looking after his agricultural operations in the village and it does not mean that the appellant was the adopted son of the late Govinda Babu. 13. On a perusal of the entire evidence and the reasonings given for the findings of the courts below, I find that the appellant had pointed out certain circumstances in order to prove his case that he was treated as the foster son of the deceased Govinda Babu. To substantiate the same, the appellant has filed some documents, namely, Ex.A-4, the no objection certificate dated 21.05.1968 given by the Collector of Chengalpattu permitting the appellant to locate a travelling cinema in S.No.115 of Alinjivakkam Village, which belonged to Govinda Babu; Ex.A-5, the gun licence would show that the late Govinda Babu had issued no objection certificate to transfer his gun licence in favour of the appellant; Ex.A-55, the letter given by the late Govinda Babu to the Secretary of Cosmopolitan Club to make the appellant as a member of the Club, wherein he referred the appellant as his foster son. By pointing out various circumstances that had transpired between him and the late Govinda Babu, the appellant made an attempt to establish his case before the courts below that he was treated as the adopted son by Govinda Babu and since the 1st respondent was leading a wayward life, Govinda Babu had executed the Will Ex.A-1 in his favour, bequeathing all the suit properties. 14. 14. With regard to the first fold of submission that he was treated as the foster son by late Govinda Babu, on going through the materials, I find that the appellant made hectic efforts by producing various documents to establish that there was a close association between him and the late Govinda Babu. But, I am of the view that since the said Govinda Babu had no issue, there is no wonder in extending certain privileges to the appellant since he was his own brothers son and the said documents alone are not sufficient to prove the case of the appellant that he was the foster son, particularly in the absence of any valid legal adoption. All those documents will be helpful, at the most, to come to a conclusion that there was a close association between the appellant and the late Govinda Babu and the late Govinda Babu was extending certain privileges to the appellant since he happens to be his brothers son only and not beyond that. Hence, both the courts below, by deeply analysing the documents, rejected the case of the appellant that the appellant has failed to prove that he was treated as the foster son by late Govinda Babu. In my opinion, the case of the appellant claiming to be the adopted son of Govinda Babu is totally a question of fact since both the courts below have correctly found that the appellant is not the adopted son of Govinda Babu, which, in my view, is not perverse. 15. So far as the Will is concerned, it is the submission of the learned senior counsel for the appellant that the Will marked as Ex.A-7 was attested by two witnesses, viz., Chandrayya and Chenchaiya and since both the attestors were no more at the time of recording the evidence, the brother of Chenchaiya was examined as P.W.2 and the son of Chandrayya was examined as P.W.3 and the affidavits sworn to by the attestors were marked as Exs.A-51 and 52 and the advocate, before whom the affidavits were sworn to, was examined as P.W.4. P.Ws.2 and 3 had identified the signatures of the attestors in the Will. Therefore, the execution of the Will, as required under section 69 of the Evidence Act, was proved by the appellant. P.Ws.2 and 3 had identified the signatures of the attestors in the Will. Therefore, the execution of the Will, as required under section 69 of the Evidence Act, was proved by the appellant. When once the appellate court comes to a conclusion that the first part of section 69 of the Evidence Act i.e.with regard to the execution of the Will was proved by examining the attesting witnesses, it ought to have held that the Will is a genuine one and decreed the suit, whereas the lower appellate court erroneously held that the second part of section 69, which deals with the signature of the executant, was not proved. Attacking the said finding, the learned senior counsel submitted that the courts below, by relying upon the opinion of the handwriting expert, had come to the conclusion that the signature of the executant was not proved. Therefore, according to the learned senior counsel for the appellant, when there is ample evidence to show that there was a strained relationship between the 1st respondent and her husband and that there was a close association between the appellant and Govinda Babu, the courts below ought to have held that the Will is proved. But, it is the submission of the 1st respondent that mere proving the signature of attesting witnesses alone is not sufficient to hold that the Will is proved. In the instant case, there are suspicious circumstances around the Will and unless the suspicious circumstances are removed, it cannot be said that the Will is proved. 16. The suspicious circumstances found in this case, as evidenced from the records, are extracted hereunder: (a) the property measuring to an extent of 1 acre 95 cents in S.No.9 situated in Alinjivakkam village and another property measuring 0.48 cents in S.No.8 had been already settled in favour of the 1st respondent by way of two settlement deeds dated 19.02.1987 and 24.04.1987; but these properties find place in the Will produced by the appellant as Ex.A-7; (b) the late Govinda Babu had entered into an agreement with the 2nd defendant in respect of the property comprised in S.No.11/1B on 30.11.1992. But, this property is also included in the Will; (c) though a submission was made by the learned senior counsel for the appellant that a Will will come into effect only after the death of the executant and, as such, there is no significance in including the property comprised in S.No.11/1B, for which a sale agreement was entered into with the 2nd defendant, in my considered opinion, the said explanation is not sufficient to overcome the suspicious circumstances surrounding the Will, particularly when Exs.B-1 and B-2 were marked by D.W.1. Though P.W.1 had stated in his evidence that the Will was prepared in Thandumedu village, subsequently, in his cross examination, he had stated that he did not know where the Will was prepared either at Thandumedu or at Chennai and who had typed it. This major contradiction found in the evidence of P.W.1 creates a doubt as to whether the Will was executed by Govinda Babu. Though a submission was made by the learned senior counsel for the appellant that the statement made by the appellant in his chief examination that the Will was prepared at Thandumedu was not in respect of the execution of the Will, I am not inclined to accept the said explanation because a reading of the relevant statement, namely, (TAMIL) shows that P.W.1 was assertive while making the answers; (d) P.W.1 had stated that at the time of execution of Ex.A-7, P.W.3, the son of one of the attesting witnesses Chandrayya, was present. But P.W.3 had stated in his evidence that he was not present at the time of execution of the Will (15.6.92 (TAMIL) (e) Though the affidavits sworn to by the attesting witness were produced as Ex.A-51 and Ex.A-52, they did not contain the date on which they were prepared. Therefore, in my considered opinion, though P.Ws.2 and 3 identified the signatures of the attesting witnesses, it does not mean that the execution was proved. I find that there are various circumstances surrounding the Will as stated above, and the appellant had not taken any effort to remove the same. In this connection, it may be useful to refer to the decision of the Supreme Court in Venkatachala ..vs.. Thimmajamma ( AIR 1959 SC 443 ), wherein it has been held as follows: "20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. In this connection, it may be useful to refer to the decision of the Supreme Court in Venkatachala ..vs.. Thimmajamma ( AIR 1959 SC 443 ), wherein it has been held as follows: "20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder’s case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator’s mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator’s free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. 21. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. 21. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. 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 is generally 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. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word “conscience” in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive". 17. Though various judgments were relied upon on either side, the dictum laid down in the above judgment is applicable to the facts of the case on hand and, hence, the other judgments are not dealt with because the contentious question arising in this appeal revolves around Ex.A-7. Though P.Ws.2 and 3 had identified the signatures of the attesting witnesses, at the maximum, their evidence proved that the signatures found in the Will are of the attesting witnesses and not beyond that, but the signature of the executant has not been proved by the appellant. Moreover, the opinion of the handwriting expert D.W.2 would show that the signatures found in the Will are not the signatures of the executant. The suspicious circumstances surrounding the Will had not been cleared by the appellant. In my opinion, any controversy involved in this case will be a question of fact and not a question of law. Moreover, the opinion of the handwriting expert D.W.2 would show that the signatures found in the Will are not the signatures of the executant. The suspicious circumstances surrounding the Will had not been cleared by the appellant. In my opinion, any controversy involved in this case will be a question of fact and not a question of law. The concurrent findings of the courts below dismissing the suit do not suffer from any serious or substantial error warranting interference and the substantial questions of law framed in this appeal are answered against the appellant. For the reasons stated above, the second appeal fails and is dismissed. No costs. Consequently, connected M.P. is closed.