R. Banumathi, J.
1. This intra-Court Appeal is preferred against the Judgment and Decree in T.O.S No. 29/1993 dated 22-12-2000, granting probate in respect of Will of late Javantharaj, in favour of Executor of the Will - Swarnabadran.
2. The parties are related as under:
3. Brief facts giving rise to this Appeal are as follows:
Plaintiff is a good friend of Testator Javantharaj. Javantharaj had properties and leased-hold rights in Madras City and Rajasthan and had other assets. By the suit Will, the Testator appointed the plaintiff as Executor and is said to have bequeathed his properties in favour of his last son Parasmul and grandsons - Vijayakumar S/o Mahendra Kumar, Devkiran S/o Naval Kishore and P. Prasanth Kumar S/o Parasmul. The Will had been attested by Attesting Witness viz., Jayakumar and Seshmul. Stating that the Testator had executed the Will in a sound disposing state of mind, and undertaking to duly administer the property and render proper accounts, the plaintiff has sought for probate of the Will.
4. The Executor had filed O.P No. 705/1992 for grant of probate. The Defendant had filed Caveat and hence the Probate O.P was converted as regular Suit, in terms of Section 295 of the Indian Succession Act.
5. The Defendant contested the Suit alleging that the Suit Will is false and fabricated. According to the Defendant, his brother Parasmul with oblique motive to grab the property belonging to his father and to deprive the Defendants and other legal heirs, had maneuvered the Will to become the owner of the properties, to the exclusion of other legal heirs. One of the Attesting Witness to the Will viz., Seshmul had filed an affidavit explaining the circumstances under which he was constrained to affix his signature to the document. The Defendant had also filed a Civil Suit C.S No. 509/1994 for partition and recovery of his share in the estate of his father and the same is pending and the Defendant prayed for dismissal of the Suit.
6. On the above pleadings, four issues were framed — Whether the Will was true and genuine and whether the Will was executed by the Testator in a sound disposing state of mind. On the side of plaintiff, Executor Swarnabhadran examined himself as PW-1. PW-2-J. Jina Rajadoss, son of Attesting Witness-Jayakumar and Advocate Natarajan (PW-3) were examined. One private handwriting expert-Bennett was examined as PW-4. Exs.P-1 to P-15 were marked. On the side of Defendants, another Attesting Witness-Seshmul was examined as DW-1. Defendant was examined as DW-2. Exs.D-1 to D-29 were marked. Handwriting Expert from Tamil Nadu Forensic Science Department [TNFSD] was examined as CW-1. His report and Photographs were marked as Exs.C-1 to C-4.
7. Upon consideration of oral and documentary evidence, the learned Single Judge found that the evidence of P.W.s 1 to 3 is trustworthy and credible and the learned Single Judge held that the signature found in Ex.P-2-Will is the signature of Javantharaj, the Testator. Insofar as the opinion of the handwriting expert, the learned Single Judge found that the report given by PW-4 − Bennett is on scientific basis and the learned Judge discarded the evidence of CW-1, handwriting expert from [TNFSD]. Referring to Brij Mohan Lal v. Girdhari Lal, AIR 1978 SC 1202, the learned Single Judge was of the view that the said decision was more or less similar to the facts of the case and observed that Defendant-Naval Kishore was disobedient to his father and that is why Testator chose to ignore him. Observing that the execution of the Will was duly proved, the learned Single Judge decreed the Suit, granting probate in favour of the Executor-Swarnabhadran.
8. Challenging the Judgment of the learned Single Judge, the Defendant has preferred this Appeal. We have heard Mr. T.V Ramanujam, learned Senior Counsel for the Appellant and Mr. S. Parthasarathi, learned Senior Counsel for the Second respondent. Executor of the Will viz., the First Respondent did not enter appearance.
9. Contending that execution of the Will has not been proved in accordance with law, Mr. T.V Ramanujam, learned Senior Counsel, submitted that evidence of Executor and PW-2 − son of another Attesting Witness, would not prove attestation, as required under Section 68 of Evidence Act and Section 63 of Indian Succession Act [I.S Act]. Laying emphasis upon the evidence of CW-1, learned Senior Counsel has submitted that the handwriting expert has categorically opined that the disputed signatures ‘Q-1 to Q-4’ are forged signatures. It was further submitted that the learned Single Judge was not justified in discarding the evidence of Scientific Expert from TNFSD and preferring the opinion of a private witness, with hardly any experience. It was further urged that the Will is surrounded by several suspicious circumstances, which were not dispelled by the propounder of the Will, which was not kept in view by the learned Single Judge. On Ex.P-8 family arrangement, it was submitted that Ex.P-8 was not proved in accordance with law and the xerox copy of the document cannot be looked into.
10. On behalf of the Appellant, reliance was placed upon: State of Himachal Pradesh v. Jai Lal and ors., AIR 1999 SC 3318; Gulzar Ali v. State Of H.P., 1998 (2) SCC 192; Venkatachala Iyengar v. B.N Thimmajamma; AIR 1959 SC 443; Kalyan Singh v. Chhoti and ors. AIR 1990 SC 396; Jaswant Kaur v. Amrit Kaur & ors., 1977 (1) SCR 925; Bhaiya Girja Datt Singh v. Gangotri Datt Singh, AIR 1955 SC 346; Doraiswami v. Rettinammal and ors., 1978 (1) MLJ 456 and other decisions.
11. Contending that no particular form of attestation is required, the learned Senior Counsel, Mr. Parthasarathy has submitted that when DW-1 Seshmul has denied the execution, Section 71 of Evidence Act comes into play. The learned Senior Counsel has submitted that the plaintiff has proved the execution of the Will by the evidence of PW-1, PW-2 and that evidence is sufficient to prove the execution of the Will. The learned Senior Counsel further submitted that cumulative circumstance must be taken into consideration to uphold the validity of the Will. Laying emphasis upon Ex.P-8 family arrangement, it was submitted that even before the Defendant has entered caveat, Defendant had signed in Ex.P-8-Settlement, where there is reference about the suit Will and the Defendant is estopped from denying the Will. The learned Senior Counsel further argued that though the sisters have knowledge of the proceedings, they have not contested the same and mere disinheritance by itself is not a suspicious circumstance, when dis-inheritance is not fully explained.
12. On behalf of the respondents, reliance was placed upon the following decisions: Ponnuswami Goundan and anr. v. Kalyanasundara Ayyar and ors., AIR 1930 Mad 770; Jaikarandas Agarwalla and anr. v. Protapsingh Agarwalla, AIR 1940 Cal 189; Vyjayanthimala Bali, Trustee Of The Estate v. Rattan Chaman Bali, 1990 (1) LW 27; Brundaban Nayak and ors. v. Gobardan Biswal and ors., AIR 1990 Orissa 232; G. Vaidehi v. S. Govindarajan, 1992 (1) LW 311; Vandavasi Karthikeya @ Krishna Murthy v. S. Kamalamma and ors., AIR 1994 AP 102; S. Gopal Reddy v. State of Andhra Pradesh, AIR 1996 SC 2184; Janki Narayan Bhoir v. Narayan Namdeo Kadam, 2003 (1) CTC 308: 2003 (2) SCC 91; Saroja and ors. v. Chenniammal and ors., 2003 (4) LW 198; Uma Devi Nambiar and ors. v. T.C Sidhan (Dead), 2004 (2) CTC 287 : 2004 (2) LW 852; Meenakshiammal (dead) through LRs. v. Chandrasekaran and another, 2005 (1) SCC 280; Janaki Devi v. R. Vasanthi and 6 others, 2005 (1) CTC 11: 2005 (1) LW 455; Gurdev Kaur and ors. v. Kaki and ors., 2007 (1) CTC 334: 2007 (1) SCC 546.
13. In the light of the rival contentions and upon perusal of materials on record, we are required to determine the following points:
(i) Whether execution and attesting of Ex.P-2-Will is proved, as required under Section 68 of Evidence Act and Section 63 of Indian Succession Act?
(ii) Whether the learned Single Judge was right in accepting the evidence of P.Ws 2 and 3 as credible and opinion of handwriting expert PW-4, to hold that Ex.P-2 is genuine and last Will of Testator Javantharaj?
14. With regard to the proof of Will, law is well settled that the mode of proving the Will does not ordinarily differ from that of proving any other document except as to the special requirement prescribed under Section 63 of I.S Act. Proof cannot be mathematically precise and certain, and hence the test should be one of satisfaction of a prudent mind in such matters.
15. Section 68 of the Evidence Act lays down the mode and manner in which the execution of an unprivileged Will is to be proved. Section 63 of Indian Succession Act postulates the mode and manner in which proof and execution of a document, required by law is to be attested. In unequivocal terms, Section 68 states that the execution of the Will must be proved at least by one Attesting Witness.
16. The Supreme Court in various decisions has pointed out the essential facts, on proof of which, onus of the propounder is discharged. The earliest decision to be referred to in this regard is H. Venkatachala Iyengar v. B.N Thimmajamma and ors., AIR 1959 SC 443, in which, the Apex Court has laid down the law as under:
“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.”
17. Again in the decision in Gurdial Kaur and Ors. v. Kartar Kaur & Ors., AIR 1998 SC 2861: 1998 (2) LW 134, the Apex Court has held as follows:
“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.”
18. Regarding the discharge of burden of proof, in Niranjan Umesh Chandra Joshi v. Mridula Jyoti Rao and others, 2007 (2) CTC 172, in para 32, the Supreme Court has held as follows:
“32. The burden of proof that the Will has been validly executed and is a genuine document, is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free Will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai Aba Shedage., 2002 (1) CTC 244: 2002 (2) SCC 85 and Sridevi & Ors. v. Jayaraja Shetty and Ors. 2005 (1) CTC 443: 2005 (8) SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document”.
19. The burden of proof of due and valid execution of a Will is on the propounder. Court granting Letters of Administration/Probate must satisfy itself not only about the genuineness of the Will, but also satisfy itself that it is not fraught with any suspicious circumstance. Regarding proof of Will, in Benga Behera and anr. v. Braja Kishore Nanda and ors., 2007 (5) MLJ 159 (SC), the Supreme Court has held as under :
“40. It is now well settled that requirement of the proof of execution of a Will is the same as in case of certain other documents, for example Gift or Mortgage. The law requires that the proof of execution of a Will has to be attested at least by two witnesses. At least one Attesting Witness has to be examined to prove execution and attestation of the Will. Further, it is to be proved that the executant had signed and/or given his thumb impression in presence of at least two Attesting Witnesses and the Attesting Witnesses had put their signatures in presence of the executant. [See Madhukar D. Shende v. Tarabai Aba Shedage, AIR 2002 SC 637: 2002 (2) SCC 85; Janki Narayan Bhoir v. Narayan Namdeo Kadam (supra) and Bhagatram v. Suresh and ors., AIR 2004 SC 436: 2003 (12) SCC 35].”
20. Reiterating the principles of proof of Will and removal of suspicious circumstances, in Smt. Guro v. Atma Singh & Ors., 1992 (2) SCR 30, the Supreme Court has stated the Law thus :
“With regard to proof of a Will, the law is well settled that the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement prescribed in the case of a Will by Section 63 of the Indian Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and signature of the testator as required by law is sufficient to discharge the onus. Where, however there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the Will could be accepted as genuine. Such suspicious circumstances may be a shaky signature, a feeble mind and unfair and unjust disposal of property or the propounder himself taking a leader part in the making of the Will under which he receives a substantial benefit the presence of suspicious circumstances makes the initial onus heavier and the propounder must remove all legitimate suspicion before the document can be accepted as the last Will of the testator”.
21. In the light of the above well settled position, rival contentions of the parties are to be examined. Before we proceed further, we would like to highlight few points which put us on guard, to analyse the matter with care and circumspection. Probate was granted in favour of Executor i.e P.W.1 - Swarnabhadran. Though he was granted probate, the Executor does not seem to have administered the property. It appears, he has allowed the beneficiary viz., Parasmul, against whom accusing finger of forgery is pointed, to collect the rent which is stated to be nearly Rs. 60,000/- p.m Strangely, now in the Appeal, the Executor of the Will remained exparte. Beneficiary Parasmul, and son of beneficiary Parasmul viz., Prashant Kumar S/o Parasmul, and another Vijaykumar S/o Mahendra Kumar were brought on record. The Second respondent-Parasmul is now contesting the Appeal.
22. Opinion of handwriting expert [CW-1] is that the disputed signature in the Will, ‘Q-1 to Q-4’ have been forged by tracing process. Coupled with the fact that the Will is not registered puts us on the guard to carefully examine the matter. Though we are not basing our conclusion on the opinion of the handwriting expert alone, for the reasons stated infra, the Will is surrounded by suspicious circumstances.
23. Though serious allegations of forgery is levelled against the second respondent-Parasmul, who is the last son of Testator, the second respondent-Parasmul did not choose to get into the box in the trial stage, which is an important aspect to be kept in mind.
24. Proof of Execution of Attestation:
As regards proof of signature of the Testator and execution of the Will, the best evidence is evidence of eye witnesses. One of the eye witnesses − Attesting Witness Jayakumar, died on 31-03-1992. PW-2 − J. Jina Rajadoss, S/o Jayakumar was examined to prove the signature of his father in Ex.P-2 − Will. DW-1 − Seshmul an octogenarian, a contemporary friend of Javantharaj stated that at the request of PW-1 and Parasmul, he signed in the Will after Javantharaj passed away and thus, DW-1 resiled from his earlier affidavit. Section 71 of the Evidence Act provides that if the Attesting Witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. Section 71 can only be requisitioned when the Attesting Witness who have been called, failed to prove the execution of the Will by reason of either denying their own signature or denying the signature of the Testator.
25. Contending that Section 71 is permissive and enabling provision and is in the nature of safeguard to mandatory provision under Section 68 of the Evidence Act, the learned Counsel for the respondent placed reliance upon Janki Narayan Bhoir v. Narayan Namdeo Kadam, 2003 (1) CTC 308: 2003 (2) SCC 91. Dealing with the scope of Section 63 of I.S Act and Sections 68 and 71 of Evidence Act, the Supreme Court has held as follows:
“The requirement of due execution of a Will under Section 63(c) of the Succession Act is its attestation by two or more witnesses, which is mandatory….. Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68 of the Evidence Act, to meet a situation where it is not possible to prove the execution of the Will by calling the Attesting Witnesses, though alive. Section 71 is permissive and an enabling section permitting a party to lead other evidence in certain circumstances. But Section 68 is not merely an enabling Section. It lays down the necessary requirements, which the Court has to observe before holding that a document is proved. Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility, cannot be let down without any other means of providing due execution by “other evidence” as well. ….. Section 71 of the Evidence Act can only be requisitioned when the Attesting Witnesses who have been called failed to prove the execution of the Will by reason of either denying their own signatures or denying the signature of the testator or having no recollection as to the execution of the document.”
26. Contending that when the Attesting Witness has turned hostile, execution can be proved by other evidence under Section 71 of Evidence Act, the learned Senior Counsel placed reliance upon Brundaban Nayak and ors. v. Gobardan Biswal and ors., AIR 1990 Ori. 232. Where Attesting Witness denies or does not recollect the execution of the document, under Section 71 Evidence Act, it has been provided that in such circumstances, the execution of the document may be proved by other evidence.
27. The learned Senior Counsel submitted that plaintiff has proved the Will by other evidence as contemplated under Section 71 by the following:
Ø Executor PW-1's evidence;
Ø DW-1 − Seshmul's evidence that he signed in the Will and also in the affidavit sworn in by him;
Ø Reference to Will in Ex.P-8 Family Settlement and that the Defendant signed in Ex.P- 8 and the Defendant is estopped from denying his Will.
28. Much emphasis was laid upon the evidence of PW-1 where he stated that Javantharaj came to his house in the first week of February 1991 and handed over a closed cover and told him that it contains a Will executed by Javantharaj with two attestations of Jayakumar and Seshmul and after death of Testator Javantharaj, he opened the cover and came to know of the contents and informed his sons, after they returned from their native place, after performing the obsequies and religious rites in Rajasthan. Per contra, DW-1 Seshmul has categorically stated that he has put his signature after the death of the Testator. The learned Single Judge has accepted the evidence of PW-1 as credible and acceptable. Though PW-1 is said to be not inimical to any of the parties, the tenor of evidence and his subsequent conduct only indicates that PW-1 is interested in Parasmul. In our view, if we examine the evidence of PW-1 on the touchstone of the evidence of DW-2, we find that PW-1 was a retired Personal Assistant to Chief Engineer of Tamil Nadu Electricity Board. Admittedly, he was assisting Testator in his business during his services and also after his retirement. Though PW-1's son was then Director General of Police, PW-1 was not living with his son. Defendant [DW-2] has stated that PW-1 was receiving salary from his father i.e Rs. 1,500/- and that at the time of his father's death, he was paying the salary of Rs. 3,000/- to PW-1. The Defendant has also stated that the relationship between his father and PW-1 was one of master and servant. Though PW-1 has denied the suggestion of being employed by Javantharaj, the fact remains that he was assisting the Testator in his business and Javantharaj has helped PW-1 to purchase a house.
29. Javantharaj had valuable properties, including high rent yielding lease-hold rights. When Javantharaj had made disposition, the natural human conduct on the part of PW-1 would have been to enquire from the Testator as to who drafted the Will and who typed the Will. If not from the Testator, at least after the death of Testator, PW-1 could have enquired about the same. No such endeavor seems to have been made by PW-1. To cap it all, the cover in which the Will was allegedly handed over to PW-1 has not been produced.
30. As we have noticed earlier, after probate was granted, instead of administering the bequeathed properties, PW-1 has allowed Parasmul to collect the lease rent. He does not seem to have rendered any accounts to the Court. We were informed that Parasmul has also transferred the lease-hold rights for few crores of rupees and unjustly benefited himself. All this only shows that PW-1 was not interested in the administration of the bequeathed properties but was acting at the behest of Parasmul.
31. Time of filing Probate OP is yet another conduct to be kept in mind. Testator died on 23-07-1991. According to PW-1, the cover was opened in August 1991 and the sons were informed about the contents, after they returned from Rajasthan, after performing observing the obsequies and religious rites. In his evidence, PW-1 has stated that when he informed the contents of the Will to the sons, there was no reaction from the Defendant and he accepted the Will. Though the Defendant is said to have accepted the Will, the Administrator has hurriedly filed the Testamentary O.P, even on 02-09-1991. The hurry in filing the T.O.P was slowed down in getting it numbered. In fact, TOP was numbered only in 1992. Ex.P-8 Family Arrangement is said to have been entered into between the parties on 20-10-1991. It seems to us that T.O.P was hurriedly filed to have a hold upon the Defendant and thereby to pressurize the Defendant to come to terms. This again shows that PW-1 Swarnabhadran was not totally unbiased or uninterested. By carefully weighing his evidence, we feel, much credence cannot be attached to the evidence of PW-1.
32. Placing reliance upon Habib Khan v. Fida Hussain Khan, AIR 1924 All. 270, the learned Senior Counsel Mr. Parthasarathy has submitted that having regard to the fact that DW-1 has turned hostile, PW-1's evidence is to be given much credence. Since PW-1's evidence is fraught with artificiality and lack of credence, we do not find any substance in the above contention.
33. In M.S.P Rajesh v. M.S.P Raja and others, 1994 (1) MLJ 216, this Court has held as follows:
“22. Learned Senior Counsel for appellant also draws our attention to these cases of this aspect. In Ramachandra Rambux v. Champabai, AIR 1965 SC 354: 1965 (2) SCJ 557: 1964 (6) SCR 814, it has been held: (i) In order to judge the credibility of the witnesses, the Court is not confined only to the way in which the witnesses have deposed or to the demeanour of the witnesses, but it is open to it to look into the surrounding circumstances as well as the probabilities, so that it may be able to form a correct idea of the trustworthiness of the witnesses. This issue cannot be determined by considering the evidence adduced in the Court separately from the surrounding circumstances brought out in the evidence, or which appear from the nature and the contents of the document itself. (ii) It is necessary for the propounder to satisfy the Court about the genuineness of the Will by removing all suspicions which naturally flow from the various circumstances”.
Evidence of PW-1 if examined in the light of his conduct and other surrounding circumstances, in our view, evidence of PW-1 does not deserve credence and acceptability.
34. As against the fragile evidence of PW-1, let us now examine the evidence of DW-1. Seshmul, an octogenarian, doing business in Pharmaceuticals on a large scale. DW-1 is an Income Tax Assessee with crores of rupees as annual turn over in the business. There is no dispute that DW-1 is well affluent and a close friend of Testator right from the School days. There is no denying that DW-1 is also very pious and very religious. In his evidence, DW-1 has stated “he signed in the Will as Attesting Witness after death of Javantharaj, on the request made to him by Swarnabhadran and Parasmul, who told him that it was in the interest of the family”. We find that the evidence of DW-1 is a natural flow of events. Being a good friend of Javantharaj, if really DW-1 had attested the said Will of Javantharaj during life time Javantharaj, DW-1 would not have ventured to say that he has attested the same after death of Javantharaj. On the other hand, an octogenarian like DW-1 would have made very endeavour to give effect to the last desire of his close friend. In our considered view, the learned Judge was not right in discarding the evidence of DW-1.
35. Evidence of DW-1 is sought to be discredited on the following:
• if there had been any attempt of forgery, PW-1 would have taken some body else's signature and not Seshmul. The very fact that Seshmul signed in the Will ensures its genuineness;
• in his chief-examination, DW-1 has stated that he attested the Will and had not stated that he was misled by PW-1 and Parasmul and that he signed in the same under the impression that he is signing in a Family Arrangement;
• In any event, DW-1 having sworn an affidavit and PW-3 − Advocate Natarajan has spoken about the factum that deponent having sworn in an affidavit before him.
36. We have carefully examined the above contentions. In his cross-examination, DW-1 has stated that Parasul and Swarnabhadran brought a Will and told him that it was a family arrangement and asked him to attest the same. Quite possibly, DW-1 might have signed the document as witness in the family arrangement. When the said family arrangement did not fructify, DW-1 resiled from the same and to that effect, he has also filed Ex.D-1 − Affidavit. Of course, in his Chief Examination, DW-1 has stated that he attested the Will after the death of Javantharaj at the request of Parasmul and Swarnabhadran. The use of the word “Will” in the chief-examination would hardly affect the substance and evidence of DW-1 that he signed in Ex.P-2 after the death of Testator, at the behest of PW-1 and Parasmul.
37. Equally so, DW-1 has admitted his signature in the affidavit. The factum of signature in the affidavit by itself would not prove the affidavit. Moreover, we do not find the signature of the person who identified DW-1 before PW-3-Advocate.
38. Assailing the evidence of DW-1, in the Appeal several contentions were advanced across the Bar. During trial, the only suggestion put to DW-1 was that he resiled from his earlier affidavit since he was threatened by the Defendant. As we have noticed earlier, DW-1 an octogenarian, pious and religious man and well affluent, having concerns in pharmaceuticals, it seldom lies in the mouth of the plaintiff to suggest that DW-1 was threatened by the Defendant. Such a contention is far-fetched and untenable.
39. Evidence of PW-2 − son of another Attesting Witness-Jayakumar is yet another piece of evidence relied upon by the plaintiff to prove the execution of the Will. PW-2 has only identified the signature of his father in Ex.P-2-Will and in Ex.P-7 − Affidavit. PW-1 has no knowledge as to when his father signed as a witness in Ex.P-2-Will. His evidence is only to the limited extent of identifying his father's signature. Evidence of PW-2 cannot be taken as “one of the other evidence within the meaning of Section 71 of the Evidence Act.”
40. Placing reliance upon Ponnuswami Goundan and anr. v. Kalyanasundara Ayyar and ors., AIR 1930 Mad. 770, learned Senior Counsel has submitted that when signature of Attesting Witness is proved, there is nothing to prevent the Court from holding execution proved. In the said case, the document in question related to a muchilika. Executant of the document was an illiterate man and has denied execution and having put his mark to it and all the Attesting Witnesses are either dead or have turned hostile. Under such circumstances, in the said case, the learned Single Judge has held that when signature of Attesting Witnesses is proved, there is nothing to prevent the Court from holding execution proved. That principle may not be applied to the case of Will, where strict proof of Will is required in accordance with Section 68 of Evidence Act and Section 63 of the Indian Succession Act.
41. Ex.P-8 − Family Arrangement:
Next piece of evidence relied upon by the plaintiff is Ex.P-8 Family Arrangement [dated 20-10-1991]. Ex.P-8 is in Marwari Language with Hindi script. We have perused the English Translation of the document. Though Ex.P-8 is stated to be a family arrangement, it appears that it is a self statement by Parasmul. As per the recitals in Ex.P-8, Parasmul has declared that though his father had bequeathed the properties to him by the Will, considering his social obligation, moral right and as per his inner conscience, he has decided to allot the properties, which he got in the Will, to his brothers Naval Kishore and Mahendra Kumar. Since Ex.P-8 is a highly questionable document, we do not feel relevant to refer to the recitals in Ex.P-8.
42. In Ex.P-8, there is a mention about the Will executed by Javantharaj which is said to have been available with Swarnabhadran. In his Written Statement, the Defendant had admitted having subscribed his signature to a Memorandum of Agreement dated 20-10-1991 and of course, he has alleged it was made under compelling circumstances. The relevant averment in the Written Statement is to the effect “….. that on knowing that Defendant has intended to dispute the alleged Will, Parasmul brought pressure upon the Defendant and compelled him to subscribe his signature to Memorandum of Agreement dated 20-10-1991 and the same was obtained by Parasmul by withholding and suppressing vital facts and information and the said deed dated 20-10-1991 was never acted upon and the same is not binding upon the Defendant”. Though in Written Statement, Defendant has stated so, when he was cross-examined, DW-2 has denied having signed in Ex.P-8. In ground No. 25 of the grounds of Appeal also, the Defendant had taken a specific stand that the original of Ex.P-8 has not been produced and Ex.P-8, xerox copy does not contain his signature.
43. Drawing our attention to signature of the Defendant in Ex.P-8, Family Agreement, learned Senior Counsel, Mr. Parthasarathy had advanced three fold contentions:
• Even before the Defendant has entered caveat i.e in July 1993, the Defendant has signed in Ex.P-8, as early as on 20-10-1991;
• Having signed in Ex.P-8, Defendant very well knew of the Will and he has not raised any protest about the genuineness of the Will at the time when Defendant signed in Ex.P-8;
• The Defendant is estopped from denying the Will.
44. For more than one reason, we are unable to accede to the above contention. During trial, only Xerox copy of the alleged family arrangement [Ex.P-8] was produced. Though the original is said to be in the possession of Shri Sumerji brother-in-law [sister's husband], neither the original was produced, nor the Shri Sumerji was examined. As per Section 67 of the Evidence Act, unless the non-production of original is satisfactorily explained, secondary evidence cannot be looked into. The possibility of manipulation in Xerox copy cannot be ruled out. In The Tamil Nadu Industrial Investment Corporation Ltd., Chengai Transport Branch, rep. by its Branch Manager v. N. Swaminathan and ors., 2003 (1) CTC 33: 2002 (4) LW 147, one of us [F.M.I.K.J] has observed that xerox copy is inferior in character vis-a-vis the originals and held as under :
“It will have to be borne in mind that xerox copies will not always tally with the originals and we cannot rule out the possibility of any interpolation being made in the xerox copies. In other words, xerox copies being inferior in character vis-a-vis originals, the dispensation of filing of the originals can be considered only under exceptional circumstances and not as a matter of routine”.
45. C.M.P No. 926/2005:
Since Defendant has taken a specific ground that he has not signed in Ex.P-8, certified copy of Ex.P-8 is sought to be produced as additional evidence which is said to contain signature of the Defendant. This Application has been filed under Order 41, Rule 27, C.P.C to receive certified copy of Ex.P-8. In the affidavit sworn by Parasmul, it is averred that the family arrangement dated 20-10-1991 was produced before the Revenue Authorities in Rajasthan for mutation and that Parasmul had obtained the certified copy and that certified copy is sought to be marked as additional evidence.
46. We have carefully perused Ex.P-8 and the additional document sought to be produced. Even by a cursory look of both the documents, the position of signature of Parasmul in both the documents are totally different from each other. While Ex.P-8 does not contain the signature of Defendant, additional document sought to be produced contains the signature of Defendant which again is a xerox copy. The possibility of interpolation in xerox copy cannot be ruled out. Additional evidence cannot be admitted when a party had ample opportunity to produce it in the Trial Court. That apart, we are not convinced with the reasons stated for not producing the certified copy of the document during trial. No cogent ground is shown to permit any additional evidence. If additional evidence is received, it would only amount to fill-up the lacuna which is the result of applicant's [Parasmul's] deliberate indifference in not getting into box during trial. We find no justification for receiving additional evidence at the appellate stage, especially when Parasmul has not chosen to get into the witness box during the trial. Hence the Application filed under Order 41, Rule 27, C.P.C is dismissed.
47. Going by the plea taken by the Defendant in his Written Statement that he signed in a Memorandum of Arrangement dated 20-10-1991, the question falling for consideration is whether it would amount to estoppel from denying the genuineness of the Will?
48. Though the Defendant has alleged that he signed in Memorandum dated 20-10-1991, there is no proof showing that Ex.P-8 is the document in which the Defendant signed. That apart, original of Ex.P-8 is stated to be with Sumerji-brother-in-law of Parasmul. During trial, the said Sumerji could have been summoned and examined, calling upon him to produce the original. But that was not done.
49. Assuming for the sake of arguments that in Ex.P-8-family arrangement, Defendant had subscribed his signature, it would not amount to admission of Will, nor does it dispense with the proof of execution and attestation of Will in accordance with law.
50. In any event, the family arrangement is an Agreement between the members of the same family, intended to be generally and reasonably for the benefit of the family. Ex.P-8 is a unilateral statement of Parasmul as if he is showing a benevolence to other brothers by allotting the properties. It is not as if the family arrangement had been given effect to as per the recitals. In our considered view, the policy of Courts and equity to uphold the family arrangement cannot be invoked in this case. Therefore, the doctrine of estoppel cannot be invoked against the Defendant.
51. Suspicious Circumstances:
Law is well settled that if there are suspicious circumstances surrounding the Will, it is the duty of the person who propounds the Will to dispel such suspicious circumstance. In Venkatachalam's case, the Supreme Court has held that where the propounder was unable to dispel the suspicious circumstances, which has surrounded the question of valid execution of Attestation of the Will, no Letters of Administration in favour of the propounder could be granted.
52. Regarding the principles governing the proof of a Will, in Surendra Pal and ors. v. Saraswati Arora (Dr.) and another, AIR 1974 SC 1999, the Supreme Court indicated that the suspicious circumstances surrounding the execution of the Will would be, —
“(a) Where the signature is doubtful; (b) the testator is of feeble mind or is overawed by powerful minds interested in getting his property, (c) Where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair and (d) Where there are other reason of doubting that the dispositions of the Will are not the result of the testator's free Will and mind. It was held that in such cases, where there may be legitimate suspicious circumstances, they must be reviewed and satisfactorily explained before the Will is accepted”.
See also AIR 1990 SC 396 and 1977 (1) SCR 925.
53. Elaborating as to what are the suspicious circumstances, in Niranjan Umeshchandra Joshi v. Mridula Jyoti Rao, 2007 (2) CTC 172, the Supreme Court has held as under:
“33. There are several circumstances which would have been held to be described by this Court as suspicious circumstances:
(i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will;
(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit.
See H. Venkatachala Iyengar v. B.N Thimmajamma & Ors., AIR 1959 SC 443; and Management committee, T.K Ghosh's Academy v. T.C Palit & ors. AIR 1974 SC 1495; B. Venkatamuni v. C.J Ayodhya Ram Singh and ors., 2007 (2) LW 870: 2006 (11) Scale 148.
54. The learned Senior Counsel, Mr. T.V Ramanujam has urged the following circumstances:
• Opinion of handwriting expert [CW-1] opining that the disputed signatures ‘Q-1 to Q-4’ are forged and are traced signatures.
• Reasons stated in the Will for excluding the Defendant is incorrect and such incorrect recitals to exclude other legal heirs raises suspicion;
• Testator Javantharaj was well placed in life and he had knowledge of Court proceedings and had legal counselling for documents and business activities. Absence of proof, regarding Javantharaj took assistance of legal advice of a lawyer for drafting the Will;
• Javantharaj was executing registered documents and in fact, Will of his wife was a registered instrument. When Testator normally resorted to executing documents by registered instruments, when he was writing his Will in respect of properties worth several crores of rupees, doubts arise that he had chosen to leave an unregistered Will.
55. The learned Senior Counsel Mr. Parthasarathy has submitted that the plaintiff has adduced convincing and satisfactory evidence and there is nothing unnatural about the transaction. The learned Counsel further submitted that the suspicious circumstances pointed by the Defendant do not give rise to any suspicion so as to affect the validity of the Will.
56. Opinion of Handwriting Expert:
CW-1 is a Scientific Officer in Document Division of Tamil Nadu Forensic Science Department. Ex.P-2-Will containing disputed signatures and documents containing the admitted signatures of Javantharaj [registered Sale Deed dated 27-3-1991 and Trust Deed dated 11-02-1975] were sent to the handwriting expert through the Advocate Commissioner. Upon comparison of the disputed signatures “Q-1 to Q-4” and sample signatures “S-1 to S-22”, CW-1 has opined that “questioned signatures exhibit inherent signs of forgery”. Opinion of CW-1 is as under:
“The standard signature (S1 to S22) have been freely and speedily written and agree cumulatively in the handwriting characteristics on interse comparison and they exhibit only natural variation. The questioned signatures (Q1 to Q4) have been made by tracing process using one model signature and they exhibit inherent signs of forgery like, slow drawn movement.”
He has noted the following characteristic difference among other things:
(1) The skill of writing;
(2) The line quality in the signatures;
(3) In the detailed designs such as the beginning and formation of loops and curves of the letters ‘R’ and ‘h’ and the strokes of the letters in the signatures;.
(4) The manner of underscoring the signatures;
(5) The rhythm;
(6) The questioned signatures Q1 to Q4 when superimposed, exhibit mechanical identity among themselves.
57. PW-4-Bennett, aged 26 years, who is stated to be the Managing Partner as well as handwriting expert in a Private Detective Agency, was examined as expert evidence on Plaintiff's side. By taking photographs and conducting graphic test, and upon comparison of “Q-1 to Q-4” and “S-1 to S-22”, PW-4 expressed his opinion as under:
“As per my report, signatures referred to “S-1 to S-22” and the signatures in “Q-1 to Q-4” there was slow movement which is due to the anatomic characteristic posture of executant while signing the document and also due to age and health of the individual and sometimes due to the family circumstances. From the above, I conclude the signatures “Q1 to Q4” have been signed by one and the same person and in all respects they are similar. There was no mechanical identity in “Q1 to Q4”. For “S1 to S22” ink pen was used. “Q1 to Q4” was signed in Ball point pen. There was a slight difference in line quality which is due to the tremor or natural variations”.
58. As we have noted earlier, observing that report given by PW-4 is on scientific basis and the report of CW-1 is not based on any scientific material, the learned Single Judge accepted the report of PW-4. In order to rely on the evidence of expert, the Court must be satisfied that the witness is experienced in the art of comparison of handwriting. In Kanchansingh Dholaksingh Thakur v. State Of Gujarat, AIR 1979 SC 1011, Supreme Court has held as under:
“In order to rely on the evidence of an expert the Court must be fully satisfied that he is truthful witness and also a reliable witness fully adept in the art of identification of handwriting in order to opine whether the alleged handwriting has been made by a particular person or not”.
59. PW-4 was only 26 years old and he was associated with a Private Detective Agency. Admittedly, this case was the first occasion for PW-4 to come to the Court of law to give evidence, on comparison of handwriting. On the other hand, CW-1 is a Scientific Officer attached to Tamil Nadu Forensic Science Department, Chennai, which is a well reputed Institute with all infrastructure. CW-1 has also spoken about his experience in identification of handwriting. Having regard to the age and experience and that CW-1 is well conversant in comparison of handwritings, we are of the view that the learned Single Judge was not right in discarding the independent evidence of CW-1 and accepting the interested opinion evidence of PW-4. It is not as if CW-1 has not adopted any scientific basis, as observed by the learned Single Judge. In his evidence, CW-1 has stated that he has taken microscopic photographs of “S-1 to S-24” and “Q-1 to Q-4” and has conducted the following tests: 1. Microscopic examination, 2. Radio Spectral Comparison, 3. Video Spectral Comparison, 4. Visual Comparison with original documents, using the length, 5. Photographic examination, 6. Transperancy examination, and 7. Exasure also conducted by using UV IR lights source. While CW-1 has spent seven sittings on seven days for the examination, observation of the learned Single Judge that CW-1 has not adopted any scientific test is incorrect and unacceptable. We feel that the learned Single Judge was not right in accepting the evidence of PW-4 and rejecting the unbiased opinion evidence of CW-1. We prefer to look into the opinion evidence of CW-1.
60. As noted earlier, CW-1 has opined that “Q-1 to Q-4” are forged using tracing process. The question falling for our consideration is as to what is the evidentiary value to be attached to his opinion evidence.
61. Contending that the opinion of handwriting expert is not an exact science and that it would be unsafe to base conclusion on the basis of such opinion evidence, the learned Senior Counsel Mr. Parthasarathy has placed reliance upon Vandavasi Karthikeya @ Krishna Murthy v. S. Kamalamma and ors., AIR 1994 AP 102. Observing that Court has to take great care in deciding the genuineness of handwriting expert, the Andhra Pradesh High Court has held as under:
“The science of hand-writing is not an exact science unlike the science of fingerprints. Even experts tend to commit errors in giving their opinions on the genuineness o the signatures and handwriting. Even in genuine writing, at times, the pen hesitates or even stops especially when the author is under great physical or mental strain. Sometimes, it would be difficult for an expert to examine even the genuineness of different writings, each having its own individuality, but all by the same author. It requires intelligent comparison to differentiate the genuine signature from the forged one. Great care and caution should be exercised especially when the Court assisted by the evidence of an expert in determining the genuineness of a signature of handwriting. Even while calling experts, it is now admitted by all authorities that if one cannot get a competent man, it is better not to adduce any expert evidence at all.”
62. Observing that expert evidence is a weak type of evidence and the Courts should not consider it as conclusive, in S. Gopal Reddy v. State of Andhra Pradesh, AIR 1996 SC 2184, the Supreme Court has held as under:
“27. Thus, the evidence of PW-3, is not definite and cannot be said to be of clinching nature to connect the appellant with the disputed letters. The evidence of an expert is a rather weak type of evidence and the Courts do not generally consider it as offering ‘conclusive’ proof and, therefore, safe to rely upon the same without seeking independent and reliable corroboration. In Magan Bihari Lal v. State Of Punjab , AIR 1977 SC 1091, while dealing with evidence of a handwriting expert, this Court opined:
“We think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of U.P, AIR 1957 SC 38, that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad v. Md. Isa, AIR 1963 SC 1728, that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar v. Suboth Kumar, AIR 1964 SC 529 where it was pointed out by this Court that expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had an occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M.P, AIR 1967 SC 1326, and it uttered a note of caution pointing out that it would be risky found a conviction solely on the evidence of handwriting expert before acting upon such evidence, the Court must always try to see whether it is corroborated by other evidence, direct or circumstantial”.
63. Countering the arguments, the learned Senior Counsel, Mr. T.V Ramanujam has submitted that when the expert is shown to be skilled and has adequate knowledge of the subject, when his scientific opinion evidence is proved to be intelligible and convincing, the Court can accept the same. The learned Counsel has placed reliance upon State of Himachal Pradesh v. Jai Lal and ors., AIR 1999 SC 3318, wherein the Supreme Court has held as under:
“In order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case”.
The learned Senior Counsel has also placed reliance upon Gulzar Ali v. State Of H.P., 1998 (2) SCC 192.
64. In a catena of decisions, the Courts have held that the expert opinion must always be received with care and caution. In Magan Bihari Lal v. State Of Punjab , AIR 1977 SC 1091, the Supreme Court has held that it is well settled that handwriting experts opinion must always be received with care and caution and that it is unsafe to base a Judgment purely on expert opinion without substantial corroboration. In Murarilal v. State of M.P, 1980 SC 531, the Supreme Court has held as follows :
“… having due regard to the imperfect nature of the science of identification of handwriting, the approach should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of a handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight”.
In Unnamalai Ammai Ammal v. Sithapathi Reddiar, AIR 1961 Mad. 90: 1961 (1) MLJ 33, this Court has well elucidated the principle in considering the opinion of the handwriting expert as under:
“In evaluating the evidence of a handwriting expert on the question of genuineness of the signature alleged to be that of the testator, the Court must keep in view the following consideration:
Firstly, very few people always sign in the same manner on all occasions;
Secondly, the opinion of an expert as to the genuineness of a signature should be received with great caution, especially in a case where there is positive evidence of persons who saw the testator sign the Will;
Thirdly, all the tests evolved by experts in the matter of comparison of handwriting and signature are merely tentative in character; and lastly, opinion evidence is usually very weak evidence”.
65. Placing reliance upon Central Bank of India, by its Manager v. Antony Hardware Mart., by its Proprietor, 2006 (3) CTC 39, learned Senior Counsel, Mr. T.V Ramanujam urged the Court to compare the disputed signature with sample signatures under Section 73 of the Evidence Act. In the said decision, referring to K.S Satyanarayana v. V.R Narayana Rao, 1999 (6) SCC 104, and Lalit Popli v. Canara Bank, 2003 (3) CTC 494: 2003 (3) SCC 583, Division Bench of this Court has taken the view that under Section 73 of the Evidence Act, Court is competent to compare the disputed signature with the admitted signature. No doubt, Section 73 of Evidence Act empowers the Court to see for itself and compare the disputed signatures with admitted signature. Though we have seen the enlarged copies of disputed and admitted signatures, we do not venture to go in for such comparison, as contemplated under Section 73 Evidence Act, the reason being we have taken opinion of handwriting expert as only one piece of evidence creating suspicion and we are not basing our conclusion solely on that basis.
66. We feel that opinion evidence of CW-1 is only one piece of evidence which according to us raises suspicion as to the genuineness of Ex.P-2-Will. This coupled with the fact that the Will is not a registered one. We have carefully perused and examined the enlarged disputed signature and the admitted signatures. We are convinced with the reasonings given by CW-1 for his opinion.
67. During his cross-examination, CW-1 has stated that tracing was by mechanical process i.e three signatures were by direct tracing and one signature by indirect tracing. Evidence of CW-1 is sought to be assailed contending that CW-1 has not given his opinion as to where from the disputed signatures could have been traced and without any definite opinion on that score, much weight cannot be attached to the opinion evidence of CW-1. In our view, this contention has no force. CW-1 was only confined to comparison of disputed signature with admitted signatures and giving his opinion. It was neither within his domain nor necessary to embark upon an investigation into the matter as to where from the questioned signatures could have been traced. Had it been an investigation in Criminal case, it might have been necessary for the investigating agency to trace out for the model signature. It would have been neither possible for CW-1 nor requisite upon him to trace out the model signature.
68. On the basis of answers elicited during cross examination, much arguments were advanced, criticizing the opinion evidence of CW-1. It was submitted that his opinion evidence as to direct tracing and indirect tracing is very vague. Such an argument across the Bar does not affect the substance of the opinion evidence of CW-1.
69. In the recitals in Ex.P-2-Will, it is alleged that Defendant Naval Kishore does not possess good qualities and he is burdensome to the Testator and that his son is also like him. The recitals also allege that no one is helping the Testator in his business nor in managing his properties. The tenor of recitals in Ex.P-2 exhibit harsh words of father towards his son. In his evidence, DW-1 has stated that Javantharaj was affectionate towards all family members and that his father was particularly affectionate to him because Defendant had blood pressure problem and that he was physically weak. Defendant had also deposed that he has been assisting his father both in his personal and business activities and maintaining the accounts. Placing reliance upon Gurdev Kaur and ors. v. Kaki and ors., 2007 (1) SCC 546, learned Senior Counsel, Mr. T.V Ramanujam has submitted that any incorrect recitals in the Will and the reasoning for exclusion when proved to be false i.e suspicious circumstances surrounding the Will. Wife of Javantahraj had executed a registered Will in which Defendant was given a share which only indicates that Defendant was maintaining a cordial relationship with his parents. We are of the view that the recitals in the Will exhibit harshness towards the Defendant and the same is without substance. Such incorrect recitals coupled with disinheritance of Defendant raises serious doubts.
70. The learned Single Judge mainly placed reliance upon Brij Mohan Lal v. Girdhari Lal, AIR 1978 SC 1202, and said that the said case is more or less similar to the case on hand. After extracting the Judgment, the learned Single Judge proceeded to observe that the Defendant had gone to bad ways and was disobedient and therefore, the Testator chose to ignore him and there is no reason to disbelieve the said contents of the Will. The recitals of the Will is not supported by any evidence. As we have stated earlier, Defendant has categorically denied that he being disobedient to his father all along the way, Defendant had also been helping his father in managing the properties. The learned Judge was not right in presuming that the Defendant had gone to bad ways and was disobedient to his father.
71. Admittedly Javantharaj was well conversant with Court proceedings. There is no dispute that he used to consult eminent Lawyers like Mr. P. Gopalsami Iyengar and Mr. M. Srinivasan [as His Lordship then was] and used to get legal advice from the said eminent lawyers. It may be noted that documents executed by Javantharaj were also drafted only by Advocates. For instance, Ex.P-4-Supplemental Trust Deed dated 31-07-1990 was drafted by Advocate Mr. Radha Krishnan. Ex.P-5-Deed of Supplemental Trust [dated 28-05-1990] was drafted by Advocate Mr. P.K Sivasubramaniam. Indisputedly, Javantharaj had legal counselling for drafting and in managing his affairs. While so, while he had bequeathed his properties of huge value, the question arises, would he have just left behind an unregistered Will? Absolutely there is no evidence as to who drafted Ex.P-2-Will and who typed it. Drafting of the Will is shrouded with suspicion, which is not at all dispelled.
72. We are conscious that mere registration of the Will by itself will not dispel all suspicions regarding execution and attestation of the Will. Registration of the Will by itself does not ensure the genuineness of the Will. But act of registration is a solemn act which would lend assurance to the genuineness of the Will. When Javantharaj was in the habit of obtaining legal advice and getting documents registered, Ex.P-2 Will being unregistered is yet another suspicious circumstance, which we are unable to reconcile with.
73. Evidence adduced by the plaintiff to prove the execution and attestation is not convincing. Suspicious circumstances surrounding the execution of the Will, such as the conduct of the propounder, unnatural disposition and non-examination of beneficiary should be taken into account. In the given facts and circumstances of the case and evidence adduced, we are of the view that the judicial conscience of this Court is not at all satisfied. The propounder has not dispelled all suspicious circumstances, coupled with the fact that propounder of the Will has not entered appearance in the Appeal. Parasmul, who has deliberately kept himself away from the witness box during trial, is contesting the Appeal. All these aspects were not kept in proper perspective by the learned Single Judge. The reasonings of the impugned Judgment are perverse and are unsustainable.
74. For the foregoing reasons, the Judgment in T.O.S No. 29/1993 is set aside and this O.S.A is allowed. T.O.S No. 29/1993 stands dismissed. For the reasons stated in paragraph No. 46, C.M.P No. 926/2005 is dismissed.
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