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2012 DIGILAW 1584 (MAD)

M. Deenadayalan v. Saroja Ammal

2012-03-29

R.S.RAMANATHAN

body2012
Judgment :- 1. The sixth defendant is the appellant. 2. The first respondent herein filed O.S.No.25 of 2004 on the file of the Sub Court, Krishnagiri for declaration of her title to the suit properties and for injunction on the basis of the Will dated 15.7.1992 alleged to have been executed by her alleged husband Che.Munisamy Chettiar. The sixth defendant, the appellant herein and other defendants contested the suit stating that the first respondent/plaintiff was not the legally wedded wife of their father Che.Munisamy Chettiar and the first respondent/plaintiff was the wife of Marimuthu Gounder and she got two daughters through him and she also admitted in other proceedings that she was the widow of Marimuthu Gounder and therefore, she cannot claim the status of the widow of Che.Munisamy Chettiar. They further contended that the alleged Will dated 15.7.1992 was not executed by their father and it was a forged document and the testator was not in a sound and disposing state of mind to execute the said document and there are various suspicious circumstances surrounding the document. 3. The Trial Court held that having regard to the long cohabitation between Munisamy Chettiar and the first respondent and the fact that the first respondent was admittedly living with Munisamy Chettiar for more than twenty years, led to the presumption that she was the wife of Munisamy Chettiar and the Will was proved in the manner known to law and one of the attesting witnesses was examined to prove the due execution of the Will and the Will was also a registered one and the first respondent/plaintiff also proved that subsequent to the execution of the Will, the testator Munisamy Chettiar executed sale deeds in favour of P.Ws.4 to 6 and Munisamy Chettiar died four years later and therefore, the Will was a genuine one and the first respondent/plaintiff got title to the property under the Will and decreed the suit. The lower appellate court also confirmed the judgment of the Trial Court and hence, the second appeal. 4. The following substantial questions of law were framed at the time of admission of the second appeal:- "1. Whether the presumption drawn by the courts below that both Munisamy Chettiar and Saroja Ammal were living as husband and wife for the long time? 2. 4. The following substantial questions of law were framed at the time of admission of the second appeal:- "1. Whether the presumption drawn by the courts below that both Munisamy Chettiar and Saroja Ammal were living as husband and wife for the long time? 2. Whether Ex.A9 has been proved as required under Section 68 of the Evidence Act, coupled with Section 63 of the Indian Succession Act?" 5. It is submitted by the learned counsel for the appellant that having regard to Ex.B1 sale deed wherein the first respondent/plaintiff described herself as wife of Marimuthu Gounder, the birth certificate of the daughters of the first respondent/plaintiff viz., Exs.B2 and B3 wherein they were described as daughters of Marimuthu Gounder and the first respondent, Ex.B5 marriage invitation of the daughter of the first respondent and Ex.B7, the affidavit filed by the first respondent in C.C.No.543 of 1977 wherein she claimed herself as the wife of Marimuthu Gounder and filed the complaint for defamation for having referred herself as the concubine of Munisamy Chettiar would prove that she was not be the wife of Munisamy Chettiar and even assuming that Munisamy Chettiar and the first respondent/plaintiff were living together in the same house that will not lead to the presumption that she is the widow of Munisamy Chettiar when she is admittedly the wife of Marimuthu Gounder. He further submitted that the court below, without properly appreciating the suspicious circumstances surrounding the execution of the Will and the signatures found in the Will and the admission of PW2, one of the attesting witnesses and the admission of PW1, the first respondent that in or about the time of execution of the Will, the testator Munisamy Chettiar has undergone operation and his right toe and another finger were removed and considering these facts, the courts below ought to have held that the Will was not executed by Munisamy Chettiar and mere registration will not lead to any presumption that the Will was executed by the Testator while he was in a sound and disposing state of mind and though there were five attesting witnesses to the Will, PW2, who is admittedly the sister's son of the first respondent/plaintiff alone was examined to prove the attestation and therefore, it could not be stated that the Will was executed by the testator while he was in a sound and disposing state of mind. The learned Senior Counsel further submitted that having regard to the admitted signatures of Munisamy Chettiar in the letters marked in the suit as Ex.B19, it cannot be stated that the signatures in the Will, would have been made by the testator and all the signatures are different from one another and these aspects were not considered by the courts below while upholding the Will in favour of the first respondent. The learned Senior Counsel, therefore, submitted that the courts below erred in holding that the first respondent was the legally wedded wife of Munisamy Chettiar and the Will was executed by the testator while he was in a sound and disposing state of mind. 6. On the other hand, the learned counsel for the first respondent submitted that both the courts below have concurrently held that by drawing legal presumption having regard to the fact that the first respondent was living with Munisamy Chettiar for more than 30 years and therefore, she was presumed to be the wife of Munisamy Chettiar relying upon the judgment of the Honourable Supreme Court and therefore, the concurrent findings of fact that the first respondent was the wife of Munisamy Chettiar cannot be infered with. The learned counsel further submitted that Ex.A9 Will was a registered Will and Munisamy Chettiar died four years later and after the execution of the Will, he sold various items of property to P.Ws.4 to 6 and admittedly, prior to the execution of the Will, there was a partition among the children of Munisamy Chettiar and himself and certain properties were allotted to the share of Munisamy Chettiar and those properties were dealt with under the Will and admittedly, the children of Munisamy Chettiar did not take care of him and he was taken care of by Saroja Ammal, the first respondent/plaintiff and therefore, there is nothing wrong in executing the Will in favour of the vendor and the due execution of the Will was also spoken to by PW2 and his evidence was not impeached in cross examination and the lower appellate court has considered various suspicious circumstances alleged to have been existed at the time of execution of the Will and after considering all those aspects, held that the Will was executed by Munisamy Chettiar while he was in a sound and disposing state of mind and therefore, the concurrent findings of fact cannot be interfered with in the second appeal. 7. Heard both sides. According to me, having regard to the evidence of PW1 viz., the first respondent herein and Exs.B1 to B7, the courts below erroneously held that the first respondent was the wife of Munisamy Chettiar and by reason of long cohabitation and joint living, the legality of marriage can be presumed on the basis of the judgment reported in AIR 2005 SC 4362 , AIR 1992 SC 756 1972 TNLJ 464 (DB). The courts below without properly appreciating the basic difference with respect to the facts in those cases and the present case erred in relying upon those judgments to arrive at a conclusion that the first respondent was the wife of Munisamy Chettiar. 8. It is true that the Honourable Supreme Court in the above judgments has held that long and continuous cohabitation of a man and a woman, their treatment as such for a number of years by the society and the fact that they are living under the same roof will lead to a presumption that they are living as husband and wife. But, to raise that presumption, either of the spouse should not have been married to another person. But, to raise that presumption, either of the spouse should not have been married to another person. If both of them are not having a spouse and both of them were living together in the same roof for a long period, the presumption can be drawn. But, having regard to the admitted facts in this case, the presumption cannot be drawn and it cannot be presumed that the first respondent was the wife of Munisamy Chettiar. Admittedly, the first respondent was the wife of Marimuthu Gounder and in chief examination, she admitted that she was married to Marimuthu Gounder and after deserting him, she married Munisamy Chettiar. She further stated that her marriage with Munisamy Chettiar took place in the year 1960. Exs.B2 and B3 are the birth certificates issued in favour of the daughters born to Marimuthu Gounder and the first respondent and that was also accepted by the first respondent in cross-examination. Ex.B1 is the registration copy of the sale deed dated 2.12.1970 and in that document, the first respondent was described as the wife of Marimuthu Gounder. Ex.B4 dated 20.10.1980 is the letter given by the first respondent to the Tamil Nadu Electricity Board wherein she has given her address at Mitapally, Uthangarai Taluk, Dharmapuri whereas Munisamy Chettiar was residing at Singarapettai Post, Gurugapatti Village Uthangarai Taluk. Ex.B5 is the marriage invitation of the daughter of the first respondent through Marimuthu Gounder and in that invitation also, the name of the bride was described as daughter of Marimuthu Gounder and the first respondent. 9. Further, the sons of Munisamy Chettiar filed O.S.No.412 of 1977 against Munisamy Chettiar, his wife Muthammal, the first respondent herein and others and in that suit, in the cause title, the first respondent was described as wife of late Marimuthu Gounder and concubine of Munisamy Chettiar residing at Mittapally Post. It was objected by the first respondent and she filed a private complaint in C.C.No.543 of 1977 on the file of the Chief Judicial Magistrate, Krishnagiri under section 500 of the Indian Penal Code stating that she is the widow of Marimuthu Gounder residing at Mitapally Village and to defame her, the sons of Munisamy Chettiar purposely and mischievously described her as the concubine of Munisamy Chettiar and she has nothing to do with Munisamy Chettiar and that suit was filed to damage her reputation and character. Further, Ex.B30 is the voters list of the year 1995 and in the voter list, the first respondent was described as widow of Marimuthu Gounder and she was found living with her daughter and son-in-law viz., Prabhavathy and Ilangovan at No.67, Mittapally village. These documents were not at all considered by the courts below and the courts below were carried away by the fact that the defendants admitted that the first respondent was residing with their father and she was treated as their stepmother and therefore, by reason of the long cohabitation and joint living under the same roof, a presumption can be drawn that the first respondent was the wife of Munisamy Chettiar. 10. As stated supra, if the first respondent had not been married to Marimuthu Gounder, then the courts below were right in drawing the presumption relying upon the judgments of the Honourable Supreme Court referred to above. But, in this case, having regard to the clear admission by the first respondent and having regard to the documents viz., Exs.B1 to B7 as referred to above and Ex.B30, it cannot be presumed that the first respondent lived as second wife of Munisamy Chettiar and no presumption can be drawn having regard to the long cohabitation. The exhibits would also prove that the first respondent was not residing with Munisamy Chettiar and even in the year 1980, as evidenced by Ex.B4, complaint given by the first respondent to the Tamil Nadu Electricity Board, Ex.B7, the private complaint given in C.C.No.543 of 1977 and Ex.B30, the voter list of the year 1995, the first respondent would not have lived with Munisamy Chettiar at his residence. Admittedly, Munisamy Chettiar had a wife by name Muthammal and she was living with Munisamy Chettiar till she died in the year 1989 and Munisamy Chettiar did not divorce his wife Muthammal during her life time. 11. Therefore, having regard to the admission that the first respondent was the widow of Marimuthu Gounder, she has nothing to do with Munisamy Chettiar and she was residing with her daughter at Mittapally Village, it cannot be presumed that the first respondent was the wife of Munisamy Chettiar. 11. Therefore, having regard to the admission that the first respondent was the widow of Marimuthu Gounder, she has nothing to do with Munisamy Chettiar and she was residing with her daughter at Mittapally Village, it cannot be presumed that the first respondent was the wife of Munisamy Chettiar. As stated supra, the presumption, as laid down in the judgments of the Honourable Supreme Court, can be entertained only when Saroja, the first respondent was not married to Marimuthu Gounder and she was living with Munisamy Chettiar as his second wife. Therefore, even assuming that the first respondent was living with Munisamy Chettiar, the relationship can only be considered as concubine and she cannot claim the status of the wife of Munisamy Chettiar as she happens to be the widow of Marimuthu Gounder. Therefore, the courts below, without appreciating these exhibits, erred in presuming that the marriage had been presumed and erroneously held that the first respondent was the wife of Munisamy Chettiar. Therefore, the first substantial question of law is answered in favour of the appellant and I hold that the finding of the courts below that the first respondent was the wife of Munisamy Chettiar is erroneous and it is set aside. 12. Next, we will have to see whether the first respondent has proved Ex.A9 Will. According to me, irrespective of the fact whether the first respondent was the wife of Munisamy Chettiar or not, if the first respondent is able to prove that Ex.A9 was executed by Munisamy Chettiar while he was in a sound and disposing state of mind, she is entitled to the relief of declaration and injunction. Therefore, we will have to see whether the first respondent has proved the due execution of the Will, Ex.A9 by Munisamy Chettiar. 13. It is admitted by PW1 that prior to Ex.A9, Munisamy Chettiar had executed three or four Wills and all those Wills were registered. Admittedly, Munisamy Chettiar had ten children and number of grand children and as per Ex.A13, the complaint given by Munisamy Chettiar to the Director General of Police dated 12.5.1986, Munisamy Chettiar admitted that he executed a registered Will dated 15.11.1985 bequeathing his property to his grand sons through his son Nallathambi and Dheenadhayalan and also his four daughters. Admittedly, Munisamy Chettiar had ten children and number of grand children and as per Ex.A13, the complaint given by Munisamy Chettiar to the Director General of Police dated 12.5.1986, Munisamy Chettiar admitted that he executed a registered Will dated 15.11.1985 bequeathing his property to his grand sons through his son Nallathambi and Dheenadhayalan and also his four daughters. Further, in Ex.A13, he has given complaint against his sons Dharmalingam, Ramasamy and he also admitted that his son Nallathambi and his grand son Ashok son of Nallathambi are having cordial relationship with him. Therefore, when a person had ten children and also grand children through them and executed various wills bequeathing the properties in favour of his grand sons, whether such person would have executed any Will and get it registered in favour of the first respondent disinheriting his children and grand children. Though the exclusion of heirs in a Will will not be considered as suspicious circumstance, taking cumulative effect of various other factors, it cannot be stated that the first respondent has proved that the Will was executed by Munisamy Chettiar while in a sound and disposing state of mind and there was no suspicious circumstances surrounding the execution of the Will. 14. The lower appellate court discussed the three alleged circumstances which can be termed as suspicious circumstances and held that those circumstances cannot be held against the first respondent and no such circumstances existed in this case. It is true that the Honourable Supreme Court in the judgment reported in PENTAKOTA SATHYANARAYANA v. PENTAKOTA SEETHARATNAM ( AIR 2005 SC 4362 ) held that the circumstances of depriving natural heirs should not raise any suspicious circumstances because the idea behind the execution of the Will is to interfere with the normal role of succession. In the judgment reported in BHARPUR SINGH v. SHAMSHER SINGH ( (2009) 3 SCC 687 ), the Honourable Supreme Court placed the entire law relating to suspicious circumstances in the execution of Will and laid down certain criterion which may give room for suspicious circumstances. It has been held in the above judgment in para 23 as follows:- "Suspicious circumstances like the following may be found to be surrounded in the execution of the Will: (i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. It has been held in the above judgment in para 23 as follows:- "Suspicious circumstances like the following may be found to be surrounded in the execution of the Will: (i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. (ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time. (iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason. (iv) The dispositions may not appear to be the result of the testator's free will and mind. (v) The propounder takes a prominent part in the execution of the Will. (vi) The testator used to sign blank papers. (vii) The Will did not see the light of the day for long. (viii) Incorrect recitals of essential facts." 15. Further, the Honourable Supreme Court in the judgment reported in NIRANJAN UMESHCHANDRA JOSHI v. MRUDULA JYOTI RAO ((2006) 13 SCC 433) held as follows:- "33. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D.Shende v. Tarabai Aba Shedage ( (2002) 2 SCC 85 and Srideviv. Jayaraja Shetty (2005) 2 SCC 784 ]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document. 34. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D.Shende v. Tarabai Aba Shedage ( (2002) 2 SCC 85 and Srideviv. Jayaraja Shetty (2005) 2 SCC 784 ]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document. 34. There are several circumstances which would have been held to be described (sic) by this Court as suspicious circumstances: (i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will; (ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances; (iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit." 16. In the above judgment, the Honourable Supreme Court also relied on the decision in ANIL KAK v. SHARADA RAJE ( (2008) 7 SCC 695 ) wherein it has been held as follows:- "52. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/or letters of administration with a copy of the Will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine. 53. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order. 54. It may be true that deprivation of a due share by (sic to) the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a Will. 55. Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation." 17. In the judgment reported in JASWANT KAUR v. AMRIT KAUR ( (1977) 1 SCC 369 ), the Honourable Supreme Court has held as follows:- "... When the Will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and defendant. In the judgment reported in JASWANT KAUR v. AMRIT KAUR ( (1977) 1 SCC 369 ), the Honourable Supreme Court has held as follows:- "... When the Will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and defendant. An adversarial proceeding in such cases becomes a matter of Court's conscience and propounder of the Will has to remove all suspicious circumstances to satisfy that Will was duly executed by testator wherefor cogent and convincing explanation of suspicious circumstances shrouding the making of Will must be offered." 18. Bearing these principles in mind, we will have to see whether the first respondent has proved due execution of the Will. Admittedly, Ex.A9 Will is a registered one and it has been held by the Honourable Supreme Court that the fact that the Will is a registered Will will not lead to any presumption that it has been executed by the testator of the Will in a sound and disposing state of mind. Therefore, the propounder of the Will has to prove that the Will was executed by the testator while in a sound and disposing state of mind, the conscience of the execution of the Will and the Will was duly attested as required under section 68 of the Indian Evidence Act coupled with section 63 of the Indian Succession Act, 1968. 19. As stated supra, the Will was attested by five persons and of all the five attesting witnesses viz., Venkatesan, Govindasamy also identified the testator before the Sub Registrar. One of the attesting witnesses viz., Ponnusamy was examined to prove the due execution and attestation of the Will. It is admitted by PW1 and PW2, the attesting witness that the attesting witness Ponnusamy is the sister's son of the first respondent. The other attesting witnesses are not related to the first respondent and no attempt was made by the first respondent to examine independent and uninterested witness to prove the due execution of the Will. 20. Further, the Will contains six pages and the signature of the testator in each page is not the same and one signature does not tally with the other signature. 20. Further, the Will contains six pages and the signature of the testator in each page is not the same and one signature does not tally with the other signature. It is the specific case of P.Ws.1 and 2 that even after execution of Ex.A9, the testator sold various properties to PW4 to PW6 and they also were examined, but, the sale deeds executed by Munisamy Chettiar in favour of PW4 to PW6 were not marked in court to enable the court to compare the signature of Munisamy Chettiar found in those sale deeds with that of the signature of Munisamy Chettiar found in Ex.A9 Will. It is seen from Ex.A9 that before the Sub Registrar, Munisamy Chettiar alleged to have signed and that signature put before the Sub Registrar admitting the execution is different from the signature found in other pages. According to me, it is very patent to the naked eye that the signature found in all the six pages and the signature put before the Sub Registrar are different and they could not have been signed by the same person at the same time. The style of writing and the stroke are entirely different. For example, it is seen from Ex.A9 that Munisamy Chettiar signed in Tamil as 'br/Kdparhkp brl;o'. The initial 'br' is different in all the six pages and the writings of 'Kdparhkp brl;o' is also different in all the pages. The first letter 'K' is different. In the signature put before the Sub Registrar, the different stroke of 'K' and 'D' is found. 21. Further, the admitted signature of Munisamy Chettiar is available in this case and they are Exs.A13 and B19. Ex.B19 are the letters written by Munisamy Chettiar in the year 1983. The signature in those letters are identical having same stroke and style and the signature found in Ex.A9 is totally a different one. Similarly, in Ex.A13, the signature found in Ex.A13 is similar to Ex.B19 and it is different from the signature found in Ex.A9. Therefore, the signature differs and one of the attesting witnesses examined is an interested witness and independent and uninterested witnesses, who alleged to have attested the document, were not examined. No reason has been stated in the Will to exclude the natural heirs and to give the entire property in favour of the first respondent. Therefore, the signature differs and one of the attesting witnesses examined is an interested witness and independent and uninterested witnesses, who alleged to have attested the document, were not examined. No reason has been stated in the Will to exclude the natural heirs and to give the entire property in favour of the first respondent. There may not be any reason to be stated for excluding the natural heir, but, it is expected to give reason for giving the entire properties to the first respondent and it is only stated that she is the wife and she is taking care of him and therefore, the Will was executed in her favour. 22. As stated supra, PW1 admitted that earlier to Ex.A9, Munisamy Chettiar had executed three or four registered Wills and those registered Wills were not marked to prove the signature found in Ex.A9 and no attempt was made by the first respondent to explain the difference in the signature found in the Will and in Ex.B19 and Ex.A13. Further, in the judgment reported in BABUSINGH v. RAMSINGH (2008 (4) LW 770), it has that when the Will was suspected, the propounder ought to have examined more than one attesting witness to prove the genuineness of the Will. Therefore, having regard to the suspicious circumstances as laid down in the decision reported in (2009) 3 SCC 687 and other judgments relied upon in that judgment and referred to by the appellant, the first respondent has not proved to the satisfaction of the court that the Will was executed by Munisamy Chettiar while he was in a sound and disposing state of mind. 23. As stated supra, the signature of the testator does not appear to be his usual signature. The disposition is unnatural and one of the attesting witnesses examined in court is none other than the sister's son of the propounder would all lead to the suspicion that the Will might not have been executed by Munisamy Chettiar while in a sound and disposing state of mind or the Will might not have been executed by Munisamy Chettiar. Further, it is admitted by PW1 that in or around the execution of the Will, Munisamy Chettiar had his fingers in the leg amputated and he was hospitalised. Further, it is admitted by PW1 that in or around the execution of the Will, Munisamy Chettiar had his fingers in the leg amputated and he was hospitalised. But, PW2, who happens to be the sister's son of PW1 viz., the first respondent herein, did not state the physical condition and the treatment taken by Munisamy Chettiar during the relevant time and he gave answer that he was not aware of such things or the treatment taken by Munisamy Chettiar during that time. 24. Therefore, having regard to the fact that the first respondent never claimed to be the wife of Munisamy Chettiar and considering herself as the widow of Marimuthu Gounder and was found living in Mitapally Village and not in the place where Munisamy Chettiar lived as evidenced by voters list Ex.B4, it cannot be held that she was taking care of Munisamy Chettiar and out of love and affection and considering her patronage, the Will was executed by him while he was in a sound and disposing state of mind. Therefore, I hold that the first respondent has not dispelled the suspicious circumstances executed at the time of execution of the Will and without appreciating these aspects, the court below erred in holding that the Will was proved by the first respondent by examining PW2. Therefore, the second substantial question of law is also answered in favour of the appellant and I hold that the first respondent has failed to prove Ex.A9 in the manner known to law and failed to dispel the suspicious circumstances surrounding the execution of the Will and therefore, she cannot claim any right under the Will. In the result, the judgment and decree of the courts below are set aside. The second appeal is allowed. The suit is decreed. No costs.