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2014 DIGILAW 4470 (MAD)

Petitioner v. Respondent

2014-11-28

S.TAMILVANAN

body2014
Judgment S. Tamilvanan, J. 1. This Original Petition has been filed under Order XXV Rule 4 of the O.S. Rules of High Court, Madras r/w Sections 222 and 276 of Indian Succession Act, 1925. 2. The petitioner herein has stated that he is the brother of one Lakshmi Kanthammal, the testatrix of the Will, who died on 21.10.1989 at No.15, Ganapathy Mudali Street, Royapettah, Chennai – 14. Her husband L.Jayarama Pillai died on 27.12.1996. According to the petitioner, on 11.02.1985, while the testatrix was alive in a hale and healthy state of mind, executed a Will on 11.02.1985 in the presence of witnesses. The said Will was duly registered as Document No.11/1985 on the file of the Sub-Registrar Office, Mylapore, whereby bequeathed absolutely the property at No.15, Old No.1, Royapettah, Chennai-14, the business at Shop No.143, Avvai Shanmugam Salai, Lloyds Road, Gopalapuram, Chennai-86 and family articles, furnitures and other materials available there to petitioner's sons, respondents 1 to 3 herein and also the fourth respondent, being the daughter of her brother, the petitioner herein. However, under the Will, the life interest of the property was given in favour of the petitioner herein and hence, the petitioner is entitled to get probate of the Will. The petitioner has further stated that the value of the said assets is approximately at Rs.39 lakhs. 3. The petitioner has further submitted that though the petitioner's name is Bakthavatsalam, he used to sign as Bakthan. As per the Will, the name of the testatrix is stated as Lakshmi Kantha, however, in the death certificate, it is stated as Lakshmi Kanthammal. There is no rival claimants, the respondents 1 to 4 are sons and daughters of the petitioner and the petitioner is claiming probate of the Will, seeking life interest for him and absolute right in favour of his sons, the respondents 1 to 3 and daughter, fourth respondent herein. 4. The Death certificate of Lakshmi Kanthammal, wife of Late. Jayarama Pillai, dated 31.10.1989 issued by the authorities is marked as Ex.P.1. As per the document, it is seen that Lakshmi Kanthammal died on 21.10.1989. As per the averments of the petition, the testatrix husband died on 27.12.1996, however, in the Death Certificate of Lakshmi Kanthammal, dated 31.10.1989, she is stated as wife Late. Jayarama Pillai. Jayarama Pillai, dated 31.10.1989 issued by the authorities is marked as Ex.P.1. As per the document, it is seen that Lakshmi Kanthammal died on 21.10.1989. As per the averments of the petition, the testatrix husband died on 27.12.1996, however, in the Death Certificate of Lakshmi Kanthammal, dated 31.10.1989, she is stated as wife Late. Jayarama Pillai. Had Jayarama Pillai, husband of Lakshmi Kanthammal died on 27.12.1996 in the death certificate of Lakshmi Kanthammal issued on 31.10.1989 by the authorities, it could not have been stated as wife of Late Jayarama Pillai. 5. The second document, Ex.P.2 is the original Will, said to have been executed by Lakshmi Kanthammal, w/o Jayarama Pillai on 11.02.1985. In Ex.P.2, original Will, LTI of Lakshmi Kanthammal is said to have been affixed by her. She was identified before the Sub-Registrar by one L. Angamuthu s/o Late. Ramasamy and one K.AR. Somasundhar, s/o. Ramalingam is also stated as one of the attestors to the Will. Ex.P.3 is the Death Certificate of L. Jayaraman issued on 31.12.1976 and as per the Death Certificate, the said Jayarama Pillai died on 27.12.1976. Ex.P.4 is the written consent given by the respondents 1 to 4 in favour of their father, the petitioner herein. Ex.P.5 is the affidavit of asset showing the net value of the property at Rs.39,00,000/-. 6. The petitioner, P.W.1 has stated in his evidence that Ex.P.2, Will was attested by two attesting witnesses, namely R. Angamuthu and K.AR. Somasundar, however, according to him, the whereabouts of both the attesting witnesses are not known to him, hence, he could not examine even one of the witnesses to the document. 7. As decided by the Hon'ble Supreme Court in Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria, reported in (2008) 15 SCC 365 , as per Section 63 (c) of the Indian Succession Act, a Will has to be proved not only by providing the signature of the executor, but also that it should be found free from any suspicious circumstances, in proving the Will. 8. 8. It is relevant to refer Section 63(c) of the Indian Succession Act, which reads as follows : "(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen 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." It is made clear that the said provision is mandatory in nature, hence, a Will is required to be attested by two or more witnesses. 9. It is mandatory, as per Section 63(c) of Indian Succession Act, that a Will should be attested by two or more witnesses, each of whom could have seen the testator/testatrix signing or affixing his/her Left hand Thumb Impression (LTI) or mark to the Will and each of the witnesses should have signed the Will in the presence of the testator. At least one of such witness shall be examined to prove the Will. 10. In the instant case, the registered Will, said to have been executed by the testatrix Lakshmi Kanthammal has been marked as Ex.P.2 and in all the pages of the Will, left hand thumb impression (LTI) is available and the same has been stated as LTI of Lakshmi Kanthammal. It is seen that there are two attestors to the Will namely (1) R. Angamuthu and (2) K.AR. Somasundhar, however, none of the attestor was examined, in order to prove the execution of the Will. In this regard, Section 68 of the Indian Evidence Act, 1872 and Section 3 of Transfer of Property Act, 1882 are also relevant. 11. It is seen that Section 68 of the Indian Evidence Act, 1872 reads as follows : "68. Somasundhar, however, none of the attestor was examined, in order to prove the execution of the Will. In this regard, Section 68 of the Indian Evidence Act, 1872 and Section 3 of Transfer of Property Act, 1882 are also relevant. 11. It is seen that Section 68 of the Indian Evidence Act, 1872 reads as follows : "68. Proof of execution of document required by law to be attested -If a document is required by law to be attested, it shall not be used as evidence, until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence." As per proviso to the aforesaid section, it shall not be necessary to call an attesting witness, in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 and therefore, the aforesaid Section 68 of the Indian Evidence Act is directly applicable to establish any Will, either registered or unregistered. In order to prove the execution of Will, as per the aforesaid section, at least one of the attesting witnesses could have been examined to establish the genuineness of the document allegedly executed by the testator/testatrix referred in the Will and that the testator/testatrix was in a sound disposing state of mind, while executing the document. The testator or testatrix should have affixed signature or thumb impression in the Will voluntarily, without any threat or coercion or undue influence, in the presence of the attestors and the same should be proved only by examining at lest one of the attestors to the Will. 12. In the instant case, admittedly, only a left hand thumb impression (LTI) is available. It is stated by the petitioner that Late Lakshmi Kanthammal, the testatrix had affixed her left hand thumb impressions (LTI) in all the pages of the Will, Ex.P.2. Neither the petitioner, nor the respondents are competent to speak anything on the execution of the Will, since they are not attestors to the Will. It is stated by the petitioner that Late Lakshmi Kanthammal, the testatrix had affixed her left hand thumb impressions (LTI) in all the pages of the Will, Ex.P.2. Neither the petitioner, nor the respondents are competent to speak anything on the execution of the Will, since they are not attestors to the Will. It is submitted by the learned counsel appearing for the petitioner that the whereabouts of both the attestors to the Will are not known to the petitioner, hence, the said attestors could not be examined by him, to prove the Will, however, the said plea of the petitioner cannot be construed as a legal defence to establish or prove the genuineness and legality of the Will, as contemplated under Section 63(c) of Indian Succession Act and Section 68 of the Indian Evidence Act. 13. The Hon'ble Supreme Court in Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria, reported in (2008) 15 SCC 365 has held that the law in respect of proving a Will is well settled and accordingly, it has to be proved, not only by proving the signature or LTI of the executor of the Will, but it should also be established that establishing the Will is free from any suspicious circumstances. 14. It is relevant that Section 68 of the Evidence Act provides that the propounder must prove the execution and attestation of the Will by examining at least one of the attesting witnesses to the Will. What is meant by the word "attestation" is defined in Section 3 of the Transfer of Property Act, which reads as under : "3. 14. It is relevant that Section 68 of the Evidence Act provides that the propounder must prove the execution and attestation of the Will by examining at least one of the attesting witnesses to the Will. What is meant by the word "attestation" is defined in Section 3 of the Transfer of Property Act, which reads as under : "3. Interpretation clause - In this Act, unless there is something repugnant in the subject or context, - 'attested' in relation 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 acknowledgment of his signature of 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 no particular form of attestation shall be necessary." 15. In Babu Singh and others v. Ram Sahai alias Ram Singh, reported in (2008) 14 SCC 754, the Hon'ble Supreme Court has ruled that a Will has to be attested by two witnesses in terms of Section 63(1)(c) of the Succession Act, 1925. Indisputably, the mandate of Section 68 of the Evidence Act, 1872 is required to be complied with for proving a Will. Section 63(1)(c) of the Succession Act mandates attestation of Will by two or more witnesses. Thus, to establish a Will, it must not only be attested by two or more witnesses, but also mandatory for examining at least one of the witnesses, to prove the execution of the Will. In order to prove the execution of the Will, the evidence required must be in conformity with the provisions of Section 3 of the Transfer of Property Act. As per the section, "Attestation" and "execution" connote two different meanings. It is not in dispute that some documents do not require attestation. In order to prove the execution of the Will, the evidence required must be in conformity with the provisions of Section 3 of the Transfer of Property Act. As per the section, "Attestation" and "execution" connote two different meanings. It is not in dispute that some documents do not require attestation. Some documents are required by law to be attested and in this regard, it is not in dispute that "Will" is one of such documents, since "Will" shall come in to effect only after the demise of the testator/testatrix, if it is a genuine document. Hence, execution of the Will has to be proved, as per procedure known to law that the same was executed only by the testator/testatrix, while in a sound disposing state of mind. 16. In Savithri v. Karthyayani Amma, reported in (2007) 11 SCC 621 , it was held by the Hon'ble Apex Court that Section 69 of the Evidence Act would apply, inter alia, in a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the Will may be proved in the manner indicated in Section 69, i.e., by examining witnesses who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others. Whereas, a Will ordinarily must be proved keeping in view the provisions of Section 63 of the Succession Act and Section 68 of the Evidence Act, in the event the ingredients thereof, are brought on record, strict proof of execution and attestation stands relaxed. However, signature or LTI, as contemplated in Section 69 must be proved. In the absence of examining at least one of the attestors, the Court cannot presume that the alleged execution of the Will as proved, based on the self-serving version of the petitioner. 17. In this regard, the decision of the High Court of Calcutta in Amal Sankar Sen v. Dacca Coop. In the absence of examining at least one of the attestors, the Court cannot presume that the alleged execution of the Will as proved, based on the self-serving version of the petitioner. 17. In this regard, the decision of the High Court of Calcutta in Amal Sankar Sen v. Dacca Coop. Housing Society Ltd., reported in AIR 1945 Cal 350 was also referred to, wherein it is observed by Calcutta High Court as follows : "...In order that Section 69, Evidence Act, may be applied, mere taking out of the summons or the service of summons upon an attesting witness or the mere taking out of warrant against him is not sufficient. It is only when the witness does not appear even after all the processes under Order 16 Rule 10, which the Court considered to be fit and proper had been exhausted that the foundation will be laid for the application of Section 69, Evidence Act." 18. It is relevant to refer to Section 69 of the Indian Evidence Act, 1872, which reads thus : "69. Proof where no attesting witness found -If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness, at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person." 19. It has been made crystal clear that it would apply inter alia, in a case, where the attesting witnesses is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the Will may be proved in the manner indicated in Section 69, i.e., by examining witnesses, who were able to prove the handwriting of the testator or executant. 20. In Apoline D' Souza v. John D' Souza, reported in (2007) 7 SCC 255, the Hon'ble Apex Court held that the question as to whether due attestation has been established or not will depend on the fact situation obtaining in each case, wherein it was held thus: (SCC p.230, para 13) "13. Section 68 of the Indian Evidence Act, 1872 provides for the mode and manner in which execution of the will is to be proved. Section 68 of the Indian Evidence Act, 1872 provides for the mode and manner in which execution of the will is to be proved. Proof of attestation of the will is a mandatory requirement. Attestation is sought to be proved by PW-2 only. Both the daughters of the testatrix were nuns. No property, therefore, could be bequeathed in their favour. In fact one of them had expired long back. Relation of the testatrix with the respondent admittedly was very cordial. Appellant before us has not been able to prove that she had been staying with the testatrix since 1986 and only on that count she was made a beneficiary thereof. The will was full of suspicious circumstances. PW-2 categorically stated that the will was drafted before her coming to the residence of the testatrix and she had only proved her signature as a witness to the execution of the will but the document was a handwritten one. The original will is typed in Kannada, although the blanks were filled up with English letters. There is no evidence to show that the contents of the will were read over and explained to the testatrix. PW-2 was not known to her. Why was she called and who called her to attest the will is shrouded in mystery. Her evidence is not at all satisfactory in regard to the proper frame of mind of the testatrix. There were several cuttings and overwritings also in the will." 21. It has been well settled by the Hon'ble Apex Court in various decisions referred to above that the execution of the Will has to be proved as per Section 63(1)(c) of the Succession Act, 1925 and Section 68 of Indian Evidence Act. Section 3 of the Transfer of Property Act, 1882 is also relevant in this regard in proving a Will. Only after the death of the testator/testatrix, the Will said to have been executed by such person comes into operation. It is not in dispute that the Will may be a registered document or an unregistered document, but it has to be established as per procedure known to law by any party claiming right through the Will. Only after the death of the testator/testatrix, the Will said to have been executed by such person comes into operation. It is not in dispute that the Will may be a registered document or an unregistered document, but it has to be established as per procedure known to law by any party claiming right through the Will. It has been made clear that as per Section 63(1)(c) of Succession Act, 1925, a Will must contain at least two witnesses, to speak about the execution of the Will by the testator/testatrix in a sound disposing state of mind of the testator/testatrix. Out of the said witnesses, at least one could have been examined, in order to prove the execution of the Will. 22. As per Section 68 of Indian Evidence Act, if a document is required by law to be attested, it shall not be used as evidence, until the same is proved, for which one of the attesting witnesses, at lest could have been examined for the purpose of proving its execution of the Will by the testator/testatrix, if there be an attesting witness alive. The proviso to the said section reads that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports have been executed is specifically denied. However, in case of a Will, it has to be established that the same was executed by the testator/testatrix, without any threat or coercion, while the person was in a sound disposing state of mind. 23. As per the decision of the Hon'ble Supreme Court in Beni Chand v. Kamla, reported in AIR 1977 SC 63 , attesting witness is one who signs the document in presence of the executant after seeing the execution of the document or after receiving the personal acknowledgment of the executant with regard to the execution of the document. 24. So far as Will is concerned, it can rightly be said that it is a rider for the general rule of succession, since in the absence of any Will, only the legal heirs of the deceased are entitled to claim right to the property, left by the deceased. 24. So far as Will is concerned, it can rightly be said that it is a rider for the general rule of succession, since in the absence of any Will, only the legal heirs of the deceased are entitled to claim right to the property, left by the deceased. Hence, a genuine Will creates a deviation against the natural procedure of delivery upon the legal heirs of the deceased, as per the personal law of the deceased. Under Hindu Law of Succession, all Class -I heirs of the deceased are entitled to one share each in the property left by the deceased and in the absence of any Class-I heir, the property will devolve upon Class-II heirs by order of preference. However, if there is any Will executed by the deceased and proved in the manner known to law, the same will prevail over the normal way of inheritance. 25. If there is any Will executed by the deceased and proved, as per the Will, one can claim right to the property of the deceased and therefore, the Will is normally be a rider to the general way of inheritance. If the Will is not proved, legal heirs of the deceased could be entitled to claim right to the property left by the deceased, as per the personal law of the deceased. If there is no legal heirs to the deceased, ultimately, the Government has got right to take over the property. Hence, the burden is upon the person(s), seeking right to the property left by the deceased, based on a Will to establish the genuineness of the Will. 26. In fact, the propounder of the Will has to establish that the Will was executed by the deceased testator/testatrix in a sound disposing state of mind, without threat or coercion, in the presence of two witnesses, who are attestors to the Will. The burden is upon the petitioner to establish that the Will was executed by the deceased Lakshmi Kanthammal, since he has claimed rights under the Will, by examining at least one of the attesting witnesses to the Will. Admittedly, no attesting witness was examined to prove the execution of the Will and it is stated by the petitioner that the whereabouts of the attesting witnesses are not known to him. Admittedly, no attesting witness was examined to prove the execution of the Will and it is stated by the petitioner that the whereabouts of the attesting witnesses are not known to him. As per Section 63(1)(c) of the Succession Act and Section 68 of Indian Evidence Act, the aforesaid reason would not be a defence to prove the Will. As it is a registered Will, at least the Court can presume that the person, who signed or affixed the thumb impression was in a sound disposing state of mind, while registering the Will, in view of the presumption under Section 114(e) of Indian Evidence Act, being the official act of registration. However, the Sub-Registrar would not be a competent person to identify the testator, in spite of the presumption and further, even there is possibility for impersonation in affixing signature of LTI and therefore, the burden is heavily upon the propounder or the person claiming right through the Will, to establish that the Will was executed by the testator/testatrix stated in the Will and not by any other person. 27. In the instant case, there is no evidence to establish that the testatrix had affixed her signature/LTI in the Will. The neighbour or the relatives cannot be examined to identify the signature, making the person handwriting expert, even without producing any admitted signature for comparison. If at all the party can produce any public documents containing the signature of the testator/testatrix and could have sent the Will to any expert through Court for comparing the signature and the LTI, in view of the legal presumption under Section 114 (e) of the Indian Evidence Act, so far as the person who signed or affixed his LTI was in a sound disposing state of mind, as it is a registered Will. 28. The petitioner has not taken any steps to prove that the Will was executed by Lakshmi Kanthammal by examining at least one of the attestors, hence, on the aforesaid circumstances, in view of Section 63(1)(c) of Succession Act and Section 68 of Indian Evidence Act, the Court is of the view that the petitioner has not established the genuineness of the Will and therefore, the claim made in the Original Petition is not legally sustainable and accordingly, the same is liable to be dismissed. 29. In the result, this Original Petition is dismissed. 29. In the result, this Original Petition is dismissed. However, it is made clear that in the absence of proving the Will, all the legal heirs of the deceased are entitled to claim their respective shares, as per Hindu Succession Act. No order as to costs.