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2014 DIGILAW 4152 (MAD)

Thrisangu v. Rajammal

2014-11-06

V.M.VELUMANI

body2014
JUDGMENT This Second Appeal has been filed against the judgment and decree dated 29.07.2004 made in A.S.No.51 of 2004 on the file of Principal District Court, Ramanathapuram, confirming the Judgment and Decree, dated 04.02.2004, made in O.S.No.55 of 2002 on the file of Subordinate Court, Paramakkudi. 2. The appellant is the plaintiff in the suit in O.S.No.55 of 2002 on the file of Subordinate Court, Paramakkudi. He filed the suit against the respondents for declaration that the suit properties belong to him and for permanent injunction restraining the respondents from interfering with his peaceful possession or alternatively to direct the respondents to deliver vacant possession of the properties to the appellant. 3. The relevant facts of the case are as follows:- (i) The suit properties described in the schedule to the plaint are situate in Alanganallur and Dharmarajapuram Villages and belonged to one Kannan, brother of the appellant. The said Kannan died on 27.06.1993 unmarried. As per the Hindu Succession Act, the appellant/ plaintiff inherited all the properties as the legal heir of his brother-Kannan. The respondents have no right, title or interest whatsoever in the suit properties. They were trying to disturb peaceful possession and enjoyment of the appellant. Hence, the appellant/plaintiff filed the suit. (ii) The first respondent in her written statement stated that the said Kannan, brother of the appellant got all the properties partitioned among himself and his brothers and was living separately. The first respondent and her family members were looking after him and taking care of all his needs providing food etc. The said Kannan became like one of the family members of the first respondent. The said Kannan executed a Will, dated 06.09.1989 bequeathing his properties to the first respondent and handed over all the original document of titles to her. She is maintaining the properties and collecting rents from the tenants. After the death of the said Kannan on 27.06.1993, the first respondent is in possession and enjoyment of the suit properties and collecting rents from the tenants. She is in possession as owner to the knowledge of all and thus, she has perfected her title by adverse possession. She sold item Nos.5 and 6 to the fourth respondent for valuable consideration. The fourth respondent vacated the tenants and inducted new tenants and is collecting rents from them. The tenants are necessary parties. She is in possession as owner to the knowledge of all and thus, she has perfected her title by adverse possession. She sold item Nos.5 and 6 to the fourth respondent for valuable consideration. The fourth respondent vacated the tenants and inducted new tenants and is collecting rents from them. The tenants are necessary parties. Further, the said Kannan has also executed another Will, dated 09.02.1992 while he was in a sound disposing state of mind bequeathing the properties in Alanganallur Village to Lakshmi Priya, minor daughter of the respondents 2 and 3. He also bequeathed all the moneys to the second respondent, which he may receive from the Government of Tamil Nadu. In these circumstances, there is no necessity for the respondents to trespass into the suit properties. The first respondent also gave publication in Newspapers about the Will executed by Kannan and also gave notice through counsel. The appellant did not take any steps at that time. Now, with a view to threaten the first respondent and to get money, the appellant had filed the suit. The appellant did not value the suit properties properly and has not paid proper Court fee. (iii) The fourth respondent in his written statement had stated the same averments, as stated by the first respondent. (iv) The learned Sub-Judge, based on the pleadings, framed necessary issues. (v) The appellant examined himself as P.W.1 and marked documents Exs.P1 to P12. The first respondent examined herself as D.W.1 and examined Rajangam, one of the attesting witnesses as D.W.2 and marked documents Exs.B1 to B11. (vi) The learned Judge considering all the materials on record and the arguments of the learned counsel for the appellant and the respondents, dismissed the suit by Judgment and Decree, dated 04.02.2004, accepting the contention of the respondents with regard to the Will executed by Kannan and their possession of the suit properties. (vii) The appellant filed A.S.No.51 of 2004 on the file of Principal District Court, Ramanathapuram, against the Judgment and Decree, dated 04.02.2004, made in O.S.No.55 of 2002. (viii) The learned appellate Judge framed points for consideration based on the pleadings, grounds of appeal and the Judgment and Decree of the trial Court. The learned appellate Judge considered all the materials on record and dismissed the appeal by the Judgment and Decree, dated 29.07.2004, confirming the Judgment and Decree, dated 04.02.2004, made in O.S.No.55 of 2002. 4. (viii) The learned appellate Judge framed points for consideration based on the pleadings, grounds of appeal and the Judgment and Decree of the trial Court. The learned appellate Judge considered all the materials on record and dismissed the appeal by the Judgment and Decree, dated 29.07.2004, confirming the Judgment and Decree, dated 04.02.2004, made in O.S.No.55 of 2002. 4. Aggrieved by the same, the appellant has filed the present second appeal. 5. At the time of admission of the second appeal, this Court framed the following substantial questions of law: (i) Whether the examination of the one attesting witnesses is enough for proof of Will, when the following suspicious circumstances exists? (a) That the disposition made in the Will is unnatural and the Will is executed so as to alter the mode of succession; (b) That the Will is executed in favour of the first defendant who is rank outsider from that family of the executor and the disposition made in the Will is unnatural; (c) That the testator went to different place to Karaikudi than that of his normal abode of residence i.e., Paramakkudi at the time of execution; (d) That the Will which was made ready on 06.09.1989 has been signed only on 1.12.1992; (e) That the testator died on 27.9.1993 immediately after the execution of the Will; (f) It is the admission of D.W.2, one of the attesting witnesses that he went only once alone with Muniyasami and Naganathan. 6. The learned counsel for the appellant argued that the Courts below erred in law in dismissing the suit and the first appeal filed by the appellant. The Courts below erred in not considering the unnatural nature of Will, relied on by the first respondent. The Courts below failed to consider that the first respondent is total stranger to the family. By the Will, the appellant, the legal heir of the deceased Kannan had been totally excluded from the inheritance. The Will is dated 06.09.1989, but the same was executed only on 01.12.1992, almost three years after preparation of the said Will. The said Kannan was permanently residing at Paramakkudi, whereas the Will was executed at Karaikudi and only one of the attesting witnesses was examined. The first respondent failed to prove the genuineness of the Will and failed to let in evidence and dispel the suspicious circumstances. 7. The said Kannan was permanently residing at Paramakkudi, whereas the Will was executed at Karaikudi and only one of the attesting witnesses was examined. The first respondent failed to prove the genuineness of the Will and failed to let in evidence and dispel the suspicious circumstances. 7. In support of his submission, the learned counsel for the appellant relied on the following Judgments: (i) AIR 1959 SC 443 [H.Venkatachala Iyengar Vs. Thimmajamma and Others], wherein in paragraph Nos.18, 19 and 22, it has been held as follows:- "18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. 19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson, 50 Cal WN 895 : ( AIR 1946 PC 156 ) "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth" . They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth" . It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect." (ii) AIR 1998 SC 2861 [Gurdial Kaur and Others vs. Kartar Kaur and others], wherein in paragraph No.4, it has been held as follows:- "4. The law is well settled that the conscience of the court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will. Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the Will to dispel the suspicious circumstance. ......" (iii) AIR 2014 Himachal Pradesh 54 [Gian chand & Others Vs. Smt. Shiv Dei and another], wherein in paragraph Nos.14 and 15, it has been held as follows: "14. The "Will" has been registered at Mandi. According to DW-1 Ramesh Chand, the distance between Baldwara and native place of plaintiff is 3 KMs. The distance between Tarandol and Sarkaghat is 20 KMs. Defendants have not explained why the "Will" was not registered either at Baldwara or Sarkaghat. It has also come on record that Narain Lal was not in sound disposing mind. Ex. DW-4/A has been signed by Narain Lal in Hindi. However, he has signed the "Will" in English. Narain Lal was identified by DW-6 Netar Singh. He could not explain how he knew Narain Lal. DW-4 Kashmir Singh has admitted that he was marginal witness in as many as 18 to 36 "Will". According to him, he has signed the "Will" first and thereafter it was signed by the testator. The "Will" was to be signed by the testator first and thereafter marginal witness had to sign the "Will". The presence of Narain Lal at the time of execution of "Will" is doubtful. DW-4 Kashmir Singh is a stock witness. According to him, he has signed the "Will" first and thereafter it was signed by the testator. The "Will" was to be signed by the testator first and thereafter marginal witness had to sign the "Will". The presence of Narain Lal at the time of execution of "Will" is doubtful. DW-4 Kashmir Singh is a stock witness. It has also come on record that Sub-Registrar, Baldwara has refused to sign the "Will" and in these circumstances, the "Will" was got registered at Mandi. DW-5 Jeet Ram has also not deposed that he put his signatures 'on the "Will" in presence of testator Narain Lal. Defendants have failed to prove that the "Will" dated 1.1.1998 was executed in accordance with law. Merely that the "Will" is registered will not make it valid. A person will not be taken to a distance of 70 KMs, if he is suffering from dysentery when he could be taken to a nearby Government Dispensary. 15. Plaintiff is the legally wedded wife of deceased Narain Lal. She being the legally wedded wife was entitled to inherit the property of her husband. Narain Lal died issueless. There is no proof whatsoever that defendants are even closely related to deceased Narain Lal. Plaintiff served Narain Lal at Delhi as per the statement of DW-1 Ramesh Chand. Both the Courts below have correctly appreciated the oral as well as documentary evidence led by the parties while coming to the conclusion that the "Will" was shrouded with suspicious circumstances. Defendants were required to lead tangible evidence to remove the suspicion shrouding the "Will"." 8. For the above reasons, the appellant prayed for allowing the second appeal. 9. Per contra, the learned counsel for the respondents argued that the deceased Kannan separated from his brothers 30 years before filing of the suit. All the properties of his family were partitioned among the brothers and the said Kannan was in possession and enjoyment of the properties. The deceased Kannan was looked after by the first respondent and her family members. Due to the care taken by the first respondent and her family members, the said Kannan became like one of the family members of the first respondent. He was provided with food and shelter by the first respondent. The said Kannan developed love and affection with the first respondent and her family members. Due to the care taken by the first respondent and her family members, the said Kannan became like one of the family members of the first respondent. He was provided with food and shelter by the first respondent. The said Kannan developed love and affection with the first respondent and her family members. Due to the care taken by the first respondent and her family members and out of love and affection, the said Kannan had executed the Will in question bequeathing the properties to the first respondent. He also executed another Will, dated 09.02.1992, bequeathing the properties at Alanganallur Village to the first respondent's granddaughter-Lakshmi Priya and the daughter of the second respondent. The deceased Kannan had given valid reasons for disinheriting the appellant. The deceased Kannan had executed the Will while in a sound disposing state of mind out of his free Will. The first respondent has proved the Will as per law and there is no suspicious circumstances as alleged by the appellant. Law does not contemplate that all the attesting witnesses must be examined to prove the Will. It is sufficient if any one of the attesting witnesses was examined to prove the execution of the Will and state of mind of Testator. In the present case, D.W.2-Rajangam, one of the attesting witnesses, has spoken about the execution of the Will. The appellant was never in possession of the properties. The deceased Kannan was in possession and enjoyment of the properties till his death and after his death, the first respondent is in possession and enjoyment of the properties by living in one of the properties and by collecting rents from the tenants and is in possession as owner to the knowledge by one and all. For the above reasons, the learned counsel for the respondents prayed for dismissal of the second appeal. 10. The learned counsel for the respondents argued that DW2 was present when the Testator executed the Will. He has spoken that when the Testator signed in the Will, the Advocate and other witnesses and himself were present. Similarly, when the witnesses signed the Will, other witnesses, Testator and the Advocate were present. The learned counsel for the respondents further argued that there is nothing on record including cross-examination of DW2 to conclude that the evidence of D.W.2 is unbelievable. 11. Similarly, when the witnesses signed the Will, other witnesses, Testator and the Advocate were present. The learned counsel for the respondents further argued that there is nothing on record including cross-examination of DW2 to conclude that the evidence of D.W.2 is unbelievable. 11. I have carefully perused the materials on record, the Judgments of the Courts below and the Judgments relied on by the learned counsel for the appellant and considered the arguments of the learned counsel for the appellant and the respondents. 12. From the records, it is seen that the first respondent is not related to the deceased Kannan and by the Will in question, the deceased Kannan had totally disinherited the appellant, who is his brother. Therefore, the burden is on the first respondent to prove the Will namely, the Testator signed the Will and he was in sound and disposing state of mind and understood the nature and effect of dispositions. The first respondent through D.W.2, one of the attesting witnesses, discharged her duty to the satisfaction of trial Court, which was confirmed by the first appellate Court. Further, the Will was executed in the Office of Advocate, who had also signed in the Will. As the Testator signed in the Will in the Office of the Advocate, contention of the appellant that the Will executed in a place far away from the place of permanent residence is suspicious, is untenable. Similarly, the contention of the learned counsel for the appellant that the claim of the first respondent based on the Will has to be rejected, as the Will was made ready on 06.09.1989, but was executed only on 01.12.1992, has no force. As per instructions of Testator, the Will was prepared and he executed the same at a later point of time according to his convenience in the presence of the Advocate and the witnesses. 13. The learned counsel for the appellant argued that the Will put forth by the first respondent was concocted one. This means that, according to the appellant, the Testator did not execute the Will. The appellant had not taken any steps to get the opinion of handwriting expert in this regard. On the other hand, the learned Trial Judge compared the signature of the deceased in the Will with his admitted signature and concluded that the signature in the Will is that of the deceased Kannan. The appellant had not taken any steps to get the opinion of handwriting expert in this regard. On the other hand, the learned Trial Judge compared the signature of the deceased in the Will with his admitted signature and concluded that the signature in the Will is that of the deceased Kannan. Except alleging that the Will is concocted one, the appellant had not produced any evidence to substantiate the same. 14. There is no prohibition of law to bequeath the properties to a person other than the legal heirs. The said Will is an unnatural Will. The Propounder has to prove the said Will as per law. In the present case, the first respondent has discharged the burden cast on her by law by cogent and valid evidence. The first respondent only is in possession and enjoyment of the suit properties, as owner from the date of death of Kannan, the Testator. 15. The appellant failed to prove that he and his deceased brother were in cordial terms and after the death of his brother, he is in possession and enjoyment of the properties. On the other hand, from the materials on record, it is seen that the appellant did not take care of his brother during the life time of his deceased brother. 16. The Judgments reported in AIR 1959 SC 443 , AIR 1998 SC 2861 and AIR 2014 Himachal Pradesh 54 cited supra, do not support the case of the appellant, for the simple reason that the first respondent has proved the Will by letting in evidence as contemplated by these Judgments. Further, the Testator, died on 27.06.1993 after five months of execution of Will on 01.12.1992. 17. For the above reasons, I answer the substantial questions of law against the appellant. 18. In the result, this second appeal is dismissed confirming the Judgment and Decree, passed by the Courts below. No costs. Consequently, connected miscellaneous petition is also dismissed.