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2022 DIGILAW 896 (MAD)

Valliammal @ Mani v. Sadayappan

2022-04-12

N.ANAND VENKATESH

body2022
JUDGMENT (Prayer: Second Appeal filed Under Section 100 of the Code of Civil Procedure against the Judgment and Decree passed in A.S.No.59 of 2014 dated 07.09.2015, on the file of I Additional District Court, Erode reversing the Judgment and Decree passed in O.S.No.173 of 2010 dated 20.01.2014, on the file of II Additional Sub Court, Erode.) 1. The plaintiff is the appellant in this Second Appeal. 2. The case of the plaintiff is that the suit property originally belonged to her father Pongianna Gounder and the 1st defendant who is the brother of the plaintiff. The property in question was an ancestral property. The father of the plaintiff died on 31.3.2004 and the mother of the plaintiff died on 1.8.2007. They died leaving behind the plaintiff and the 1st defendant who are sister and brother. The 2nd and 3rd defendants are the sons of the 1st defendant. 3. The further case of the plaintiff is that her father executed a registered Will on 2.9.1991, marked as Ex.A4. As per this Will, the father bequeathed his half share in the suit property in favour of the plaintiff and life interest was given in favour of his wife. After the demise of her father and mother, the plaintiff was claiming for half share in the suit property under the Will. The grievance of the plaintiff was that her brother was not coming forward to partition the suit properties through metes and bounds. Hence, left with no other alternative, the suit was filed seeking for allotment of half share in the suit properties, in favour of the plaintiff. 4. The defendants filed a written statement and took a stand that the above said Pongianna Gounder cancelled the earlier Will executed by him on 2.9.1991and executed a fresh Will in favour of the 2nd and 3rd defendants on 25.1.1999, marked as Ex.B1. The further case of the defendant is that on the death of Pongianna Gounder, the life interest went in favour of his wife and after her demise in the year 2007, the 2nd and 3rd defendants became the absolute owners of the half share bequeathed in their favour by their grandfather. Accordingly, the defendants together were claiming ownership over all the suit properties and they denied any share in favour of the plaintiff. Accordingly they sought for the dismissal of the suit. 5. Accordingly, the defendants together were claiming ownership over all the suit properties and they denied any share in favour of the plaintiff. Accordingly they sought for the dismissal of the suit. 5. The Trial Court on considering the facts and circumstances and after appreciating the oral and documentary evidence, decreed the suit as prayed for and a preliminary decree was passed in favour of the plaintiff through Judgment and Decree dated 20.1.2014. Aggrieved by the same, the defendants filed an appeal in A.S. No. 59 of 2014. The Lower Appellate Court on re-appreciation of the oral and documentary evidence and after considering the findings of the Trial Court, was pleased to allow the appeal and set aside the Judgment and Decree of the Trial Court through Judgment and Decree dated 7.9.2015. Aggrieved by the same, the plaintiff has filed the above Second Appeal. 6. The Second Appeal was admitted and the following substantial questions of law were framed by this Court: a) Whether the lower Appellate Court went wrong in finding that the Will dated 25.01.1999 marked as Ex.B1 was proved by relying upon the evidence of DW2 to DW5 and whether such finding goes contrary to the requirements of Section 69 of the Indian Evidence Act? b) Whether the lower Appellate Court went wrong in reversing the well considered judgment of the trial court by assigning reasons which can be held to be perverse due to improper appreciation of the oral and documentary evidence available on record? 7. Heard Mr.M.Guruprasad, learned counsel for the appellant and Mr.N.Manokaran, learned counsel for respondents 1 to 3. This Court carefully considered the materials available on record and the findings of both the Courts below. 8. There is no dispute with regard to the fact that the properties are ancestral in nature and there is also no dispute with respect to the relationship between the parties. The crux of the dispute revolves around two registered Wills dated 2.9.1991, executed in favour of the plaintiff and 25.1.1999, executed in favour of the 2nd and 3rd defendants by Pongianna Gounder. In both the Wills, Pongianna Gounder had dealt with his half share in the suit properties and there is no dispute with regard to the fact that the other half belongs to the 1st defendant. 9. In both the Wills, Pongianna Gounder had dealt with his half share in the suit properties and there is no dispute with regard to the fact that the other half belongs to the 1st defendant. 9. The Trial Court while dealing with the two registered Wills executed by Pongianna Gounder, held that the examination of DW-2 and DW-3 who were the identifying witnesses for the Will dated 25.1.1999, did not satisfy the requirements of Section 69 of the Indian Evidence Act. The Trial Court further held that the document writer ought to have been examined to prove the Will dated 25.1.1999. The Trial Court further gave a finding based on the evidence of DW-1 to the effect that the knowledge of the legatee to the Will about the existence of the Will was unbelievable. This finding was rendered since DW-1 in his evidence stated that they were informed about the Will dated 25.1.1999 by one of the attesting witness Shanmuga Sundharam after the demise of Pongianna Gounder and whereas the said Shanmuga Sundharam died in the year 2002 itself much before the demise of Pongianna Gounder. The learned Trial Judge further held that only based on the registered copy of the Will dated 25.1.1999, it cannot be held that it was executed by Pongianna Gounder out of sound and disposing state of mind. The Trial Court also took into consideration the pending dispute between Pongianna Gounder and his son, the 1st defendant before Court at the time of the execution of Will and also the fact that Pongianna Gounder was taken care during his last days by the plaintiff and hence refused to act upon the subsequent Will dated 25.1.1999. Thus the Trial Court categorically held that the Will dated 25.1.1999 has not been proved. Consequently, the Trial Court acted upon the earlier Will dated 2.9.1991 and passed a preliminary decree in favour of the plaintiff. It is pertinent to mention here that the trial Court acted upon the Will dated 2.9.1991 without the same being proved in accordance with Section 68 of the Indian Evidence Act. 10. The Lower Appellate Court found that DW-2 and DW-3 who were the identifying witnesses to the Will dated 25.1.1999, identified the testator and also the attesting witnesses before the registering authority. 10. The Lower Appellate Court found that DW-2 and DW-3 who were the identifying witnesses to the Will dated 25.1.1999, identified the testator and also the attesting witnesses before the registering authority. That apart, DW-4 who was the fingerprint expert had compared Ex.A4 and Ex.B1 and had given an opinion that the thumb impression is identical and his report which was marked as Exhibits C1 and C2 was also taken into consideration by the Lower Appellate Court. The Lower Appellate Court also took into consideration the evidence of DW-5 who was the Sub-Registrar at the relevant point of time and who specifically spoke about the presence of the testator and the attesting witness as and they subscribing their signatures in his presence. On a cumulative reading of all the evidence, the Lower Appellate Court found that requirements of Section 69 of the Indian Evidence Act has been satisfied and the execution of the Will dated 25.1.1999 was proved. The Lower Appellate Court also took into consideration the facts and circumstances of the case and gave a finding to the effect that Ex.B1 was the last testament of the testator Pongianna Gounder after the cancellation of the earlier Will dated 2.9.1991. Accordingly, the findings of the Trial Court was reversed and the appeal was allowed resulting in the dismissal of the suit. 11. This Court has to analyse as to whether the subsequent Will marked as Ex.B1 was proved in accordance with Section 69 of the Evidence Act. This Court must also satisfy itself that the subsequent Will marked as Ex.B1 is not vitiated due to the suspicious circumstances pointed out by the learned counsel for the appellant. This Court must also see if the findings rendered by the Lower Appellate Court suffers from any perversity. 12. In the present case, at the time of marking the Will dated 25.1.1999, both the attesting witnesses were not alive and their death certificates marked as Ex.B3 and Ex.B4 makes it very clear. Section 68 of the Indian Evidence Act mandates the examination of at least one attesting witness in order to prove a Will. Section 69 of the Evidence Act, provides for a situation where no attesting witness is available for proving a Will. For proper appreciation, Section 69 of the Indian Evidence Act, is extracted hereunder: 69. Section 68 of the Indian Evidence Act mandates the examination of at least one attesting witness in order to prove a Will. Section 69 of the Evidence Act, provides for a situation where no attesting witness is available for proving a Will. For proper appreciation, Section 69 of the Indian Evidence Act, is extracted hereunder: 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. 13. If Section 69 is taken to be an exception to Section 68, the words “no attesting witness can be found”would mean an attesting witness: a) who is dead b) not subject to the process of the Court and c) who is incapable of giving evidence. In such an eventuality, the Will can be proved by examining someone who can speak about: a) the attestation of one attesting witness atleast is in his handwriting and b) the signature of the executant is in his handwriting. 14. The genuineness of the fingerprint found in the admitted Will marked as Ex.A4 and the disputed Will marked as Ex.B1 was compared by an expert who was examined as DW-4 and he has given a report marked as Exhibits C1 and C2. It is clearly stated in the report that the thumb impressions found in both the documents are identical with each other and it matched the left thumb impression of the testator Pongianna Gounder. This was also spoken to by DW-4 in his evidence. 15. DW-2 and DW-3 were the identifying witnesses to the Will. They have clearly stated that they have seen the testator sign the Will and put his left thumb impression and they have also seen the attesting witnesses put their signatures after identifying the signature of the testator and they signed as identifying witnesses in the Will marked as Ex.B1. Both these witnesses were cross examined. In their entire cross examination, no questions have been put against them to dispute their presence at the time of the execution and attestation of the Will. The credibility of the two witnesses has also not been shaken or discredited during the cross examination. Both these witnesses were cross examined. In their entire cross examination, no questions have been put against them to dispute their presence at the time of the execution and attestation of the Will. The credibility of the two witnesses has also not been shaken or discredited during the cross examination. Their evidence was properly appreciated by the Lower Appellate Court. 16. The execution of the Will dated 25.1.1999 by the testator Pongianna Gounder has not been seriously denied by putting questions to DW-2 and DW-3 during the cross-examination. Once there is no effective cross-examination with respect to the factum of the execution of the Will by the testator, it must be deemed by the Court that the version put forth by the witness has been accepted on the side of the plaintiff and the execution of the Will must be presumed to have been established. 17. The next evidence to be considered is the most crucial evidence of DW-5. This witness was the concerned Sub-Registrar who had registered Ex.B1 Will at the relevant point of time. This witness has clearly stated that he registered the Will after ensuring that the testator Pongianna Gounder was in a sound and disposing state of mind at the time of the execution of the Will. This witness also has spoken about the testator putting his signature and left thumb impression in his presence. He identified the same in the Court during his examination. This witness also spoke about the signatures subscribed by the attesting witnesses. He identified their signatures also in Ex.B1 Will during the course of his examination in Court. This witness also speaks about the signatures obtained from the identifying witnesses who were also examined as DW-2 and DW-3. 18. It will be relevant at this juncture to rely upon a judgment delivered by a Division Bench of this Court in Janaki Devi Vs. R. Vasanthi and others reported in 2005 1 CTC 11 where this Court had an occasion to deal with the evidence of registering authority while considering the scope of Section 69 of the Evidence Act. For proper appreciation, the relevant portions in the judgment are extracted hereunder: “31. The legislators in their wisdom, with forethought expecting this kind of circumstance, enacted Section 69 of the Evidence Act, giving guidelines, how a document, which requires attestation should be proved, where no attesting witness is found. For proper appreciation, the relevant portions in the judgment are extracted hereunder: “31. The legislators in their wisdom, with forethought expecting this kind of circumstance, enacted Section 69 of the Evidence Act, giving guidelines, how a document, which requires attestation should be proved, where no attesting witness is found. Under Section 69 of the Indian Evidence Act, if no attesting witness is available, and all the attesting witnesses are dead, law contemplates proof, that the attestation of one attesting witness at least, in his hand writing and that the signature of the person executing the Will is in the hand writing of that person. It does not say specifically what kind of proof should be made available, such as by examining certain category of person. In the absence of any such specific direction, this fact could be proved, as any other fact, which is required to be proved under the Evidence Act. Therefore, if a person had seen the testator signing in the Will, as well as attesting witnesses signing in the Will, he could speak the execution and the attestation of attesting witnesses, are in their hand writings and the signature of the person, who executed the document is in the hand writing of that person. Preciously, this is the procedure adopted by the propounder in this case, speaking the execution of the Will, attestation, etc., not challenged. 36. Ex.P.1 original Will was registered on the same day of the execution and the attestors alone have identified the testator before the Sub Registrar, for registration. Since forgery was alleged, to prove the execution of the Will as well as its acceptance before the Sub Registrar by Lakshmi Bai, the plaintiff had taken the steps, to examine the thumb impression of Lakshmi Bai in Ex.P.1, comparing the same with the thumb impression available in the Registrar’s office. The finger print expert, who has been examined as P.W.2, has given evidence about the similarity, and we do not find any reason to discard his evidence, only on the ground, that the compared thumb impressions are not having similar appearance by size. The size of thumb impression would depend upon the manner of taking and affixing. The finger print expert, who has been examined as P.W.2, has given evidence about the similarity, and we do not find any reason to discard his evidence, only on the ground, that the compared thumb impressions are not having similar appearance by size. The size of thumb impression would depend upon the manner of taking and affixing. When the finger was rolled on both sides, the space covered by the impression may be larger, when the thumb was just pressed and taken away, the space covered may be less and only in this way, it appears to our mind, there is some difference in size and it will not change the characteristic of the thumb impressions, which was found by the hand writing expert, similar. The oral evidence given by the finger print expert would make it clear further, that Lakshmi Bai had been to Registrar’s Office, registered the document, thereby accepting the execution of the document viz., Ex.P.1 and that is why, the thumb impression found in Ex.P.1 and the thumb impression found in the book maintained by the Sub Registrar’s Office tallied. True, the signature of Lakshmi Bai in Ex.P.1 was not compared with the admitted signature of Lakshmi Bai and the reason is not known. However, by proving the thumb impression, the registration of the document by Lakshmi Bai is proved, which would prove that Lakshmi Bai had admitted her signature in the Will, thereby admitting its execution also. 37. Sections 52 & 58 of the Registration Act, imposes certain duties upon the registering authority, followed by endorsement by registering officer under Section 59 and certificate of registration under Section 60 of the Act, recognising these acts as solemn one. In this case, in Ex.P.1 endorsements were made, not challenged, which could be taken as evidence, to prove the due execution also, in the absence of evidence available, through the mouth of the attesting witnesses, since they are dead, on identification of their signatures, though registration by itself could not prove the due execution of the document. 38. In this case, in Ex.P.1 endorsements were made, not challenged, which could be taken as evidence, to prove the due execution also, in the absence of evidence available, through the mouth of the attesting witnesses, since they are dead, on identification of their signatures, though registration by itself could not prove the due execution of the document. 38. The above view is further strengthened by a Division Bench of the Privy Council in Gopal Das v. Sri Thakurji, AIR 1943 PC 43 , wherein Their Lordships have held that the endorsement showing presentation and execution, admitted by the testator before the Registrar are sufficient to certain extent to prove the execution of the Will itself, provided it is not shown that the testator, who had admitted the execution of the document, is not an impostor. 39. In Irudayammal v. Salayath Mary, 1972 (2) MLJ 508 , a Division Bench of this Court has held that certificate of registration under Section 60 of the Registration Act is relevant for proving the execution, wherein it is observed as follows: “It is true that registration, by itself, in all cases, is not proof of execution, but if no other evidence is available, the certificate of registration is prima facie evidence of its execution and the certificate of the registration officer under Section 60 of the Registration Act is relevant for proving execution.” 40. In Hutchegowda v. Chennigegowda, AIR 1953 Mys. 49 , the following view was taken by a Division Bench: Evidence that a document was duly registered is some evidence of its execution by the person by whom it purports to have been executed.” 41. We have already given a finding regarding the genuineness of the execution and its registration on the basis of the unchallenged evidence given by P.W.1 and considering these proved facts supported by the above rulings, it should be further held, in view of Sections 52(1)(a), 58 & 60 of the Registration Act, the certificate issued by the Registrar would certainly, constitute sufficient evidence to prove the document, its execution also to some extent. For the foregoing reasons, we are fully satisfied, that the requirements of conditions in proving a Will, as mentioned supra are well established, and the burden of proof also discharged by the plaintiff, deserving her, to receive the order, for letters of administration.” 19. For the foregoing reasons, we are fully satisfied, that the requirements of conditions in proving a Will, as mentioned supra are well established, and the burden of proof also discharged by the plaintiff, deserving her, to receive the order, for letters of administration.” 19. This Court took into consideration the evidence of the registering authority and applied Section 69 of the Evidence Act. The Division Bench has taken into consideration the fact that the registration of the Will by itself is not a proof of execution of the Will. However when the registering authority speaks about the presentation, execution and admission of the Will for registration, the Court must give credence for the statement made by the registering authority who is examined as a witness. This is in view of the presumption provided under Section 114 (e) of the Evidence Act. It will also be relevant to take note of the judgment of the Hon’bleSupreme Court in Pentakota Satyanarayana and Others Vs. Pentakota Seetharatnam and Others reported in 2005 8 SCC 67 wherein the scope of Section 114 of Evidence Act qua Section 68 of the Act was taken into consideration and it was held as follows: “24. In the instant case, the propounders were 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. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated above. It was argued by learned counsel for the respondent that the propounders themselves took a prominent part in the execution of the Will which confer on them substantial benefits. In the instant case, the propounders who were required to remove the said suspicion have let in clear and satisfactory evidence. In the instant case, there was unequivocal admission of the Will in the written statement filed by P. Srirammurthy. In his written statement, he has specifically averred that he had executed the Will and also described the appellants as his sons and AllaKantamma as his wife as the admission was found in the pleadings. The case of the appellants cannot be thrown out. In his written statement, he has specifically averred that he had executed the Will and also described the appellants as his sons and AllaKantamma as his wife as the admission was found in the pleadings. The case of the appellants cannot be thrown out. As already noticed, the first defendant has specifically pleaded that he had executed a Will in the year 1980 and such admissions cannot be easily brushed aside. However, the testator could not be examined as he was not alive at the time of trial. All the witnesses deposed that they had signed as identifying witnesses and that the testator was in sound disposition of mind. Thus, in our opinion, the appellants have discharged their burden and established that the Will in question was executed by Sri rammurthy and Ext. B-9 was his last Will. It is true that registration of the Will does not dispense with the need of proving, execution and attestation of a document which is required by law to be proved in the manner as provided in Section 68 of the Evidence Act. The Registrar has made the following particulars on Ext. B-9 which was admitted to registration, namely, the date, hour and place of presentation of the document for registration, the signature of the person admitting the execution of the Will and the signatures of the identifying witnesses. The document also contains the signatures of the attesting witnesses and the scribe. Such particulars are required to be endorsed by the Registrar along with his signature and date of document. A presumption by a reference to Section 114 of the Evidence Act shall arise to the effect that particulars contained in the endorsement of registration were regularly and duly performed and are correctly recorded. In our opinion, the burden of proof to prove the Will has been duly and satisfactorily discharged by the appellants. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. In such circumstances, the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same.” 20. In such circumstances, the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same.” 20. In the considered view of this Court, the Lower Appellate Court properly appreciated the cumulative effect of the evidence of DW-2 to DW-5 and rightly held that the execution of the Will has been properly proved in accordance with the requirements of Section 69 of the Indian Evidence Act. The first substantial question of law is answered accordingly. 21. The next issue to be taken into consideration is as to whether Ex.B1 Will is vitiated by suspicious circumstances. The learned counsel for the appellant pointed out the following facts which according to him, clearly establishes suspicious circumstances: a) The testator Pongianna Gounder was not in good terms with the 1st defendant and there was a pending case between them which had reached this Court in S.A. No. 1485 of 1988 and it was withdrawn only on 10.1.2013. Under such circumstances, the testator could not have executed a Will in favour of the sons of the 1st defendant viz., the 2nd and 3rd defendants on 25.1.1999. b) Even as per the evidence of DW-1, the testator was taken care only by the plaintiff and not by the 1st defendant and there was no reason to cancel the earlier Will executed in favour of the plaintiff on 2.9.1991. c) There was no reason to cancel the earlier Will executed in favour of the plaintiff in the year 1991 and no reasons have been assigned for such cancellation when the subsequent Will was alleged to have been executed in the year 1999. d) DW-2 and DW-3 are rank outsiders who neither knew the testator nor the attesting witnesses and they are incapable of speaking about the signature found in Ex.B1 Will and their very presence in the registration office as identifying witnesses is unnatural. e) The evidence of DW-1 as if they were informed about the Ex.B1 Will after 84 days after the death of the testator by one of the attesting witness Shanmugam was found to be false since the said Shanmugam died even before the testator in the year 2002. 22. e) The evidence of DW-1 as if they were informed about the Ex.B1 Will after 84 days after the death of the testator by one of the attesting witness Shanmugam was found to be false since the said Shanmugam died even before the testator in the year 2002. 22. While dealing with the issue of suspicious circumstances surrounding a Will, this Court had an occasion to consider the entire law on the issue in S.A. No. 81 of 2014, through judgment dated 24.03.2022, after taking note of all the earlier judgments rendered by the Hon’bleSupreme Court and various HighCourts. This Court held as follows: “18. The Courts have considered the following circumstances to be suspicious circumstances while dealing with the facts of the case on hand. By no means, this list can be said to be exhaustive and it is more illustrative to get a fair idea while dealing with a case concerning suspicious circumstances at the time of execution of the will. The illustrative list of suspicious circumstances culled out from various judgments are extracted hereunder: 1. Doubt with regard to mental condition of the Testator despite his signature or mark found in the Will. 2. Bequest appears to be unnatural or unfair in the light of surrounding circumstances. 3. Propounder taking an active part in execution of Will which confers substantial benefit on him. 4. Inordinate delay in disclosing the Will, may also amount to suspicious circumstance, provided such delay is coupled with some doubt regarding due execution itself. 5. Presence of beneficiary and his or her taking part in execution of Will. 6. Doubt with regard to signature or mark of the Testator. 7. Glaring discrepancies and anomalies, like irregular spacing between lines, placing of signatures etc. 8. Ill health or advanced age of the Testator. 9. No reasons assigned for bequests in favour of third parties or distant relatives. 10. Material interpolations and over writings. 11. Incorrect description of properties. 12. Wrong description of persons/beneficiaries. 19. There is no straight jacket formula to ascertain suspicious circumstances. Suspicious circumstances may arise differently in different sets of facts concerning the Will. Mere suspicion also does not ordinarily affect a Will which is otherwise natural. Equally, suspicion can be dispelled by strong and positive evidence by examining concerned persons including the attesting witnesses. 12. Wrong description of persons/beneficiaries. 19. There is no straight jacket formula to ascertain suspicious circumstances. Suspicious circumstances may arise differently in different sets of facts concerning the Will. Mere suspicion also does not ordinarily affect a Will which is otherwise natural. Equally, suspicion can be dispelled by strong and positive evidence by examining concerned persons including the attesting witnesses. In any event, only such suspicion that is inherent in the transaction itself would amount to a suspicious circumstance which would be required to be reasonably explained to the satisfaction of the Court. In other words, the suspicion should be surrounding the due execution of Will itself and not something that arises subsequently or by a result of conflicting testimony of witnesses. A circumstance can be said to be suspicious when it is not normal or not normally expected in a normal situation or is not expected of a normal person. 20. It is a trite law that the Court that deals with the proof of Will is a court of conscience and not a court of suspicion. It is now well settled that the propounder has to satisfy the conscience of the court and the court while dealing with the Will should start with the presumption that the Will is genuine and it should not be a Court of suspicion. Where the execution of the Will is surrounded by suspicious circumstances, it is for the propounder of the Will to remove that suspicion. This burden would be heavier when the propounder was involved in the execution of the Will and was also a beneficiary under the Will. 21. A Will is one of the most solemn document that is dealt with by a court since the executor of the Will is no more alive at the time when the Will is acted upon. Hence, the court is not merely confined to judge the credibility of the witnesses merely on their testimony and demeanour and it is the duty of the court to look into the surrounding circumstances as well. This additional burden is cast upon the court since the court has toultimately fulfil the wishes of the testator who is no more alive. Keeping all these principles in mind, this court will now deal with the facts of the present case and the findings rendered by both the Courts below. … 38. This additional burden is cast upon the court since the court has toultimately fulfil the wishes of the testator who is no more alive. Keeping all these principles in mind, this court will now deal with the facts of the present case and the findings rendered by both the Courts below. … 38. While considering the suspicious circumstances, the Court has to satisfy its own conscience to ensure that the testator really intended to bequeath the property in favour of the beneficiary. While undertaking this exercise, a Judge should not be applying his notions or opinions as to what he considers a conscientious act. A Judge should sit in the armchair of the executor of the Will and satisfy his conscience. There maybe various reasons as to why a Will is written in a particular manner and a share is allotted to one of the daughters and others are not given any shares. While undertaking this exercise, the Court has to only look into the overall circumstances and arrive at a decision.” 23. In the present case, it is true that the testator PongiannaGounder and his son viz. the 1st defendant were not in good terms. A litigation was going on and it reached this Court in S.A. No.1485 of 1988. It is during the pendency of this litigation, Ex.B1 Will is said to have been executed on 25.1.1999. If this Will had been executed in favour of the 1st defendant, it would have straight away affected the very credibility of theWill since it will look improbable and unnatural. However, the Will has been executed in favour of D2 and D3. The reason that has been assigned in the Will has a lot of significance and hence the relevant portion in the Will is extracted hereunder: 24. It is clear from the above that the testator has made a specific reference about the pending proceedings and he expresses his desire to give his share to his grandsons. The testator also ensures that the life interest is given in favour of his wife. That apart, the testator appoints the mother of his grandsons to be the guardian if in case he dies during the minority of D2 and D3. 25. The testator also ensures that the life interest is given in favour of his wife. That apart, the testator appoints the mother of his grandsons to be the guardian if in case he dies during the minority of D2 and D3. 25. As held by this Court in the judgment referred supra, the judge should only sit in the arm chair of the executor of the Will and satisfy his conscience to ensure that the testator really intended to bequeath the property in favour of the beneficiary. Under Ex.B1 Will, the executor had clearly spelt out the reason for bequeathing the property in favour of his grandsons. It is for this reason, the earlier Will executed in favour of the plaintiff in the year 1991 was also cancelled. It must be borne in mind that the testator died only on 21.3.2004 which is nearly 4 years after the execution of the Ex.B1 Will. 26. The mere fact that the plaintiff was taking care of the testator during his last days cannot by itself make Ex.B1 Will unnatural. The testator was in loggerheads with his son and naturally his daughter had taken care of him. The misunderstanding between the testator and his son need not necessarily result in the testator entertaining any hatred towards his grandsons. The relationship of the testator with his grandsons is independent and it has nothing to do with his misunderstanding with his son. What impelled the testator to cancel the earlier Will executed in favour of the plaintiff and execute a fresh Will in favour of the grandsons, is very subjective and there may be various reasons as to why the testator took such a decision. Probably it may be due to the fact that he had already provided sufficiently for his daughter and got her married and hence he wanted to give his share in favour of his grandsons. This Court can only go by the reasons assigned in the Will and see if it sounds improbable or unnatural. In the absence of the same, the wish of the testator has to be fulfilled. 27. In the present case, DW-1 has stated in his evidence that one of the attesting witness Shanmugam had mentioned about Ex.B1 Will. The original Will was not able to be traced and hence the certified copy was obtained and filed before the Court. In the absence of the same, the wish of the testator has to be fulfilled. 27. In the present case, DW-1 has stated in his evidence that one of the attesting witness Shanmugam had mentioned about Ex.B1 Will. The original Will was not able to be traced and hence the certified copy was obtained and filed before the Court. The non-availability of the original Will has been explained by DW-1 and there is no contra evidence available to the effect that the 2nd and 3rd defendants had deliberately withheld or suppressed the original Will. It is now a well settled law that where the original Will has been lost and it has been properly explained, the certified copy of the Will can be acted upon as secondary evidence. Useful reference can be made to the judgment of the Hon’bleSupreme Court in Benga Behera and Others vs. Braja Kishore Nanda and Others reported in 2008 1 LW 241. 28. In view of the above discussion, this Court finds that the Lower Appellate Court has assigned cogent reasons based on oral and documentary evidence while reversing the findings of the Trial Court and this Court does not find those reasons to be perverse. The second substantial question of law is answered accordingly. 29. In the result, this Court does not find any ground to interfere with the Judgment and Decree of the Lower Appellate Court made In A.S.No. 59 of 2014, dated 7.9.2014 and the same is hereby sustained. Accordingly, the Second Appeal is dismissed. Considering the relationship between the parties and the facts and circumstances of the case, there shall be no order as to costs.