JUDGMENT
(Delivered by Ramamurthi, J.)
1. Defendants 1 to 3 have preferred this appeal against the judgment and decree of the learned Subordinate Judge of Ramanathapuram decreeing, in favour of the plaintiff, partition and separate possession of one-fourth share in respect of certain items of properties set forth in schedule A appended to the plaint as well as the claim for mesne profits from 12th March, 1956. The plaintiff's suit in respect of other items in the A Schedule and in respect of the entire B schedule properties as well as the plaintiff's claim for relief of accounting prior to 12th March, 1956 have been dismissed. There is no cross-appeal in respect of the portion of the plaintiff's claim disallowed.
2. The plaintiff is the daughter of one Susai Udayar defendants 5 and 6 are the sisters of the plaintiff, being the other daughters of Susai Udayar aforesaid. The first defendant Irudayammal is the widow of one Arokia Udayar, the son of Susai Udayar. Defendants 2, 3 and 4 are the daughters of the first defendant and Arokia Udayar aforesaid. The parties belong to Keeranur village in Ramanathapuram District and the father, Susai Udayar, left for Burma several decades ago and practically settled down there till the moment of his death in Burma in 1941. His wife, the mother of the plaintiff, also died in 1942. During the time he settled down in Burma, Susai Udayar acquired vast extents of paddy fields in Thamin Ahank Kmin, Dedaye Township in Burma, Susai Udayar also acquired lands and houses in his native village.
3. It is not in dispute that Susai Udayar, his wife and his three daughters settled down in Burma indeed the three daughters were born, bred up in Burma and they were also married in Burma. The husbands of the fifth and the sixth defendants (the other two daughters of Susai Udayar) were staying in Burma, looking after the lands acquired by Susai Udayar, in Burma. Arokia Udayar, the son of Susai Udayar, permanently stayed in India, in the native village and used to visit Burma now and then. It was the husband of the fifth defendant (Irudayam) who was in main charge of the management of the properties in Burma and was completely assisting Susai Udayar. During the period of the war and when the conditions in Burma were chaotic between 1941 to 1946, it was the husband of the fifth defendant who was staying in Burma and managing the properties after the death of Susai Udyar. In 1947-1948, with considerable difficulty, the fifth defendant and her husband and the plaintiff returned back to India. After return from Burma, the plaintiff was staying with her brother's wife, the first defendant. As the plaintiff had no child she was deeply attached to the fourth defendant, Therasammal, treating her as her own daughter. Misunderstandings appear to have arisen between the plaintiff and the first defendant consequent upon certain marriage proposal of the third defendant, the other daughter of the first defendant. The plaintiff issued a notice Ex. A18 dated 12th March, 1956, claiming a one fourth share in the properties of Susai Udayar, in particular, the properties in India, to which the first defendant sent a reply, Ex. A.20 dated 29th March, 1956 in which the first defendant claimed that Susai Udayar had left behind a registered will under which Susai Udayar had given substantial landed properties in Burma to the three daughters, 60 acres to the plaintiff, 60 acres to the sixth defendant and 35 acres to the fifth defendant and that the rest of the properties of Susai Udayar i.e, the properties in Burma as well as those in India, were bequeathed to Susai Udayar's son, Arokiam and that after the death of Susai Udayar in 1941, Arokiam and his three sisters were enjoying the properties as per the provisions of will separately and in their own right and that the plaintiff was not entitled to any share in the properties in Burma. The plaintiff instituted the suit in forma pauperis in July 1956, claiming partition and separate possession of her one fourth share in all the properties in India consisting of nanja lands and houses. Her case was that all the properties in the A schedule, in respect of some of which title stood in the name of the father; Susai Udayar, while, in respect of others title stood in the name of the sonf Arokiam, all belonged to Susai. The plaintiff's case is that Arokiam had no independent means of his own and that it was only out of the income from the properties Which Susai Udayar acquired, that the entire A schedule and B schedule properties were acquired by Arokiam and all the item formed part of the estate of Susai Udayar. The plaintiff also claimed an account of her share of the income from the properties from the death of Arokiam in 1946. The suit was contested by defendants 1 to 3. Defendants 4 to 6 remained ex parte; they did not ask for partition and separate possession of their shares. The contentions of defendants 1 to 3 rested mainly upon Ex. B.4 the certified registration copy of the original weil left behind by Susai Udayar. The defendant's case was that Irudayam, the husband of the fifth defendant, is responsible for this litigation, that he had set up and instigated the plaintiff to file the suit and that the original will; which was in the house of Arokiam, had been stealthily taken away by the plaintiff in collusion with Irudayam, the husband of the fifth defendant, along with other important documents and title deeds, and, taking advantage of the fact that the original will is in their custody and control, the plaintiff had been instigated to institute the suit, seeing the handicap which defendants 1 to 3 were labouring under or account of their inability to produce the original will. The learned Subordinate Judge upheld the plaintiff's claim in the view that the contesting defendants had not satisfactorily established the truth and genuineness of the will of Susai Udayar dated 12th March 1941. He also held that the plaintiff had failed to prove that the other properties in the A schedule and the property in the entire B schedule were acquired by Arokiam with the income from the properties of Susai Udayar. He granted a decree in favour of the plaintiff in respect of only items 5, 18 to 24, 26 and 34 to 54 in the A schedule and negatived the claim of the plaintiff in respect of the other items in the A schedule and the entirety of the properties in the B schedule. He also held that Arokiam had been in separate possession of those properties from the year 1941. He held that the plaintiff will be entitled to an account of the income in respect of A schedule items 5, 18 to 24, 26 and 34 to 54, only from 12th March 1956, the date when the plaintiff issued the notice to the defendants claiming her share. On the side of the plaintiff, the plaintiff was examined as P.W 1 and two other witnesses, P.Ws 2 and 3 who gave evidence to show that Arokiam acquired the other properties out of the income from the properties of Susai Udayar. On the side of the defendants, the first defendant was examined as D.W 2 and three other witnesses. D.Ws 1, 3 and 4 gave evidence about the family history, about the will and the Other details. By a process of reasoning, which is very unsatisfactory, the learned Subordinate Judge reached the conclusion that the contesting defendants had not made out the truth and genuineness of the will, though a certified registration copy of the will had been produced. Hence the present appeal by the defeated defendants 1 to 3, as already observed, there is no memorandum of cross-objections by the plaintiff in so far as the trial court disallowed the position of her claim.
4. The main point which survives for decision is the one covered by issue No. 4 of the trial court, whether the will dated 12th March 1941 (registration copy Ex. B.4) is true valid and was executed by the testator in a sound disposing state of mind. We are sorry to note that the learned Subordinate Judge has hot appreciated nor assessed the evidence in its proper background taking note of the human element involved. The question first arises, who is in possession of the original will, why it is not produced. As Ex. B4 is a certified registration copy of the will obtained from the Sub-Registrar's office in Burma, there can be no doubt about it that one Susai Udayar had executed a will on 12th March 1941 and had also registered the same on the same date.
[The discussion of the facts is omitted—Ed.].
Irudaya Udayar has deliberately avoided the box, because he would be confronted with all the aspects mentioned above, including his statement in the letter that he had sent the will and title deeds. Irudaya Udayar is, undoubtedly, interested in his wife, the fifth defendant, apart from his own interest in the plaintiff whom he has set up as a tool in this litigation. Looked at from any point of view, Irudaya Udayar is a very important witness in this case and therefore he ought to have been examined on the side of the plaintiff. The necessary adverse inference will have to be drawn. It is a pity that the trial court has proceeded to approach the matter in a mechanical manner without appreciating the main background and drawing the necessary adverse inference against the plaintiff. It is clear, therefore, in the first place, that Irudaya Udayar is in possession of the original will and he is suppressing the same, both the plaintiff and Irudaya Udayar acting in collusion, to defeat the rights of the first defendant. The next aspect is, as mentioned already, that the first defendant has no motive to suppress the will and if the original is not produced by her, it is for reasons beyond her control and that the original is not with her. It is not even suggested to her that she is keeping the original and suppressing the same.
5. The copy of the will (Ex. B.4) shows that it has been executed in a careful manner and with the assistance of a lawyer. The endorsements about the execution and the attestation clause also show that the requisite safeguards had been taken to satisfy the requirements of law as to execution and attestation. The Burma lawyer who prepared the will could not be examined, and so interrogatories were administered to him by the plaintiff as well as by the defendant. The interrogatories and the answers have been marked as Exs. B19, B. 20 and B. 21. The Lawyer could not give any helpful evidence because he was handicapped a; the original was not produced before him and the certified copy alone was shown to him. He could not either affirm or deny positively any of the interrogatories administered. One thing, however, he admitted that there is only one Lawyer by name Maung Peat Dedaya i.e, his name. More definite information could certainly have been obtained from this Burma lawyer if the original Bill had been produced before him and the plaintiff, who is a tool in the hands of Irudaya Udayar, must take the responsibility for the same. A party who keeps back the original of a document, and does not produce the same before a witness who is the scribe of the document and to whom interrogatories are administered, cannot make any point that the scribe had not proved the will. Indeed, on the other hand, here too, the adverse inference will have to be drawn against the plaintiff The answers given by the lawer, far from helping the plaintiff, are really in favour of the first defendant. The next question is about the proof of the will by the attesting witnesses. D.W 4 was examined and he gave evidence to the effect that both the attestors are dead. It is true that this evidence was adduced at the end, but the plaintiff did not ask for any opportunity to adduce rebutting evidence.
[The discussion of facts is omitted—Ed.]
6. From the above, it will be seen in that this is a clear case to which which the well known maxim, “Omnia Praesumptur contra Spoliatorem” applies (vide Broom's Legal Maxims 1939, 10th Edn. pp 637 to 640). “If a man, by his tortious act, withholds the evidence by which the truth of his case would be manifested, every presumption to his disadvantage will be adopted.” Irudaya Udayar and the plaintiff who is a tool in the former's hands are clearly the wrong-doers and every adverse inference will be drawn against them as they should take the responsibility for the non-production of the original will. The first defendant has also satisfactorily accounted for the non-production of the original will and the non-examination of the attesting witnesses as they are dead and no useful evidence could be given by the scribe. The first defendant has, therefore, proved the will by other acceptable, satisfactory evidence; supplemented by such presumptions as would arise under the provisions of the Registration Act and S. 114 of the Evidence Act on the facts of this case. There is a general presumption about the execution of the will arising under S. 60 of the Indian Registration Act (vide Mullah's Indian Registration Act, 7th Edn. page 256). 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 registering officer under S. 620 of the Registration Act is relevant for proving execution. “See dissuccion in Sarkar's Evidence, latest 12th Edn. p. 640). As observed by the Privy Couucil in Md. Ihtishan v. Jamna Prasad(1) registration is a solemn act and if no other evidence is available, the court can and presume that the Registrar performed this duty of satisfying himself that the document presented to him for registration, was duly executed by the executant and the executant was duly and properly identified before him. The same view was taken in Gopaldas v. Sri Thakurji(2) in which, after referring to the earlier decision of the Privy Council in Md. Intishan Ali v. Jamna Prasad (referred to above), Sir George Rankin observed that the evidence of due registration is itself some evidence of execution as against the other side. There is a full discussion on this question as to the presumption arising coupled with the presumption arising under S. 114 of the Indian Evidence Act in a Bench decision of the Mysore High Court in Hutchegowda Defendant… v. Chennigegowda Plaintiff….(3) in which it was held that the evidence that a document was duly registered is some evidence of its execution by the person by whom it purports to have been executed. There is a full discussion of the relevant case law including the decision of the Privy Council in Md. Intishan Ali v. Jamna Prasad. In Revanna v. Dr. A.V Ranga Rao,(4) it was observed that in cases where it is impossible for any person to prove execution of a document on account of the death of all the persons concerned, the best and the only possible evidence that may be available is that of a certified copy of the registered document and that in such cases, a presumption could arise under S. 60 of the Registration Act along with S. 114 of the Evidence Act (see also Kashibai v. Vinayak(5). It will be been that in the ultimate analysis, the problem in each case, is: has the best evidence been adduced on the facts of each case’. In the instant case, we have not the slightest hesitation in holding that this essential test for arriving at the truth has been amply satisfied.
7. There is one other aspect, i.e, the conduct evidence which leads to the same inference. From 1947 onwards, misunderstandings had arisen between the plaintiff and the first defendant and, if really the father had left no will and the first defendant's husband was not entitled to the properties solely, the plaintiff and her two sisters would not have kept quiet for over 11 years and the plaintiff would not have filed the suit just before the expiry of the 12 years' period. The letters which passed between the husband of the first defendant and the plaintiff also show that the relationship between the first defendant's husband and the fifth defendant's husband was not cordial and the first defendant's husband was insisting on strict, true and correct rendition of accounts. The plaintiff and her sisters did not assert their rights during the lifetime of the husband of the first defendant. They kept quiet for over 11 years. From this it can be legitimately presumed that the plaintiff and her sisters were fully aware that there is a will and that under that will they are not entitled to any of the properties. The trial Judge himself has disallowed any claim for mesne profits till March, 1956 when the notice, Ex. A.18, was issued. In our opinion, the delay in instituting the suit, especially for over ten years, when admittedly misunderstanding had arisen, is cogent evidence bearing upon the truth of the will.
8. Defendants 5 and 6 are each entitled to equal shares like the plaintiff, yet they have not asked for partition and possession of their shares, paying court fee therefor, which shows that they have no faith in their cases, and this again tends to the same inference that the will is true.
9. What we have discussed above is sufficient to prove that the testator was in a sound disposing state of mind at the time the will was executed. The contents of the will, the natural, rational, fair and equitable way in which the testator has distributed the estate amongst his children also shows that he was not acting capriciously and that he was executing a will fully realising the implications of what he was doing. There is absolutely no evidence that he was suffering from any serious illness which impaired his mental faculties. Indeed, as observed already, the fifth defendant himself had sent the will to the first defendant, which, by itself, is sufficient proof that it is a will genuinely executed by the testator in a sound disposing state of mind.
10. For all these reasons, the appeal in A.S 321 of 1965 is allowed and the plaintiff's suit is dismissed with costs in both the courts. As the plaintiff has completely failed, the court-fee payable to the Government on the plaint will be recovered from her. If, in the meanwhile, any portion of the court fee had been paid by the first defendant in pursuance of the direction of the trial court, the plaintiff is liable to reimburse the same to the first defendant.
11. A.S No. 362 of 1970—There is absolutely no substance in this appeal which has been preferred as cross appeal by the plaintiff in respect of the items disallowed. A perusal of the judgment of the trial court shows that the plaintiff has totally failed to prove that these assets were acquired with the aid of the income from the properties belonging to the testator. The Appeal in A.S 562 of 1970 is dismissed. No costs. The plaintiff-appellant will pay the court fee due in this appeal.
V.C.S