Sarojini Sajojini Am... v. Arunagiri. 2. Vijaya...

H. Venkatachala Iyengar v. B.N Thimmajamma, AIR 1959 SC 443 13, 20, 26

Joseph Joseph Antony Lazarus (Dead) By Lrs. v. A.J Francis., 2006 (2) CTC 756 (SC) 13

Meenakshiammal (Dead) through L.Rs v. Chandrasekaran, (2005) 1 SCC 280 16

Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, 2007 (2) CTC 172 (SC) 19, 21, 26

Pentokota Satyanarayana v. Pentakota Seetharatnam, (2005) 8 SCC 67 16

Benga Behera v. Braja Kishore Nanda, 2008 (1) LW 241 13, 18

Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 13, 20

P.T Asha for Sarvabhauman Associates, Advocates for Appellants.

Udayakumar, Advocate for Respondents.

S.A DISMISSED — NO COSTS

Prayer: Second Appeal is filed against the Judgment and Decree, dated 28.9.2005 made in A.S No. 7 of 2005 on the file of the District Court, Tiruvannamalai, reversing the Judgment and Decree, dated 25.1.2005 made in O.S No. 328 of 1999 on the file of the Additional Sub Court, Tiruvannamalai.

Judgment Reserved on 31.10.2014 and Pronounced on 27.11.2014

JUDGMENT

1. Challenge is made in this Memorandum of Second Appeal to the Judgment and Decree, dated 28.9.2005 made in A.S No. 7 of 2005 on the file of the District Court, Tiruvannamalai, reversing the Judgment and Decree, dated 25.1.2005 made in O.S No. 328 of 1999 on the file of the Additional Sub-Court, Tiruvannamalai.

2. The Appellants herein are the Plaintiffs, whereas the Respondents are the Defendants.

3. The parties to the Second Appeal may hereinafter be referred to as such in the Original Suit wherever the context so require.

4. The case of the Plaintiff is as under:

(i) The Plaintiff is the wife of the deceased Appasamy Reddiar, who died intestate on 16.9.1993, leaving behind his wife, viz., the Plaintiff, as the sole Legal Heir to succeed to the estate. The Schedule mentioned properties are the absolute properties of the deceased Appasamy Reddiar.

(ii) While the said Appasamy Reddiar was alive, he leased out the First Item of the Suit property, viz., the terraced building, to the Fourth Defendant, namely, Bank of Baroda, on a monthly rent of Rs. 1,000/- and he was receiving the rent. After his death, one month rent was paid to the Plaintiff. Thereafter, the Fourth Defendant did not pay the rent as the Defendants 1 & 2 have raised the claim over the said building on the ground that the deceased Appasamy Reddiar had executed a Will in their favour and therefore, the Fourth Defendant filed a Petition in H.G.C.O.P No. 13 of 1999 under Section 9(3) of the Tamil Nadu Rent Control Act, which was dismissed on the ground that the Rent Control Act is not applicable to Kamalaputhur Village, where the demised premises is situated.

(iii) Under these circumstances, the Plaintiff came to know about the execution of the Will by Appasamy Reddiar in favour of the Defendants 1 & 2. The Plaintiff is living in the Second Item of the Suit property. All the properties of the Appasamy Reddiar, including the properties which has been sold, were also included in the Will.

(iv) The Third Defendant is the brother of the Plaintiff and Appasamy Reddiar had no issues. Two years prior to his death, Appasamy Reddiar had solely depended upon the Third Defendant, who is his brother-in-law, as he was bed ridden due to paralytic attack. During that period, the Third Defendant looked after the agricultural operations and attended on him meeting his needs.

(v) The Second Defendant is the daughter of the Third Defendant and the First Defendant is the son-in-law of the Third Defendant.

(vi) While taking Appasamy Reddiar for treatment to Tiruvannamalai, the alleged Will was executed on 30.7.1993 under the undue influence and coercion of the Defendants 1 to 3. During that period, Appasamy Reddiar was not conscious. Had he been conscious, he would not have included all the properties, which were already sold, in the alleged Will.

(vii) In fact, not even a word had been mentioned about the Plaintiff. Except the Second Item of the Suit property, in which she is living, the other properties are in the custody of the Defendants 1 to 3. Appasamy Reddiar, who died on 16.9.1993, never treated the First Defendant as his foster son during his life time.

(viii) Despite several times of mediation, as the Defendants are not willing to hand over the possession of the Suit properties, she had filed the above said Suit for the following reliefs:

a. To declare the right, title and interest of the Plaintiff over the Suit properties;

b. Consequently, to direct the Defendants to deliver peaceful possession of the same, failing which, the same may be delivered through the process of the Court; and

c. To determine the future Mesne Profits over the Suit properties (landed properties) by conducting enquiry under Order 20, Rule 12, C.P.C

5. The Suit was resisted by the First and Fourth Defendants by filing their respective Written Statements:

(i) It is stated by the First Defendant in his Written Statement that Appasamy Reddiar died leaving behind a registered Will, dated 30.7.1993 in favour of the Defendants 1 & 2 and hence, they are the Legal Heirs of Appasamy Reddiar and not the Plaintiff.

(ii) He has also stated that the Plaintiff knew about the Will. Appasamy Reddiar died issueless and therefore, he had shown his Love and Affection on the First Defendant, who is his brother's son and the Second Defendant, who is the wife of the First Defendant and the brother's daughter of the Plaintiff. In fact, the First Defendant had been treated by them as their foster son. The Will had been executed by Appasamy Reddiar with the full knowledge and the consent of the Plaintiff.

(iii) Defendants 1 & 2 came to know about the Will only when Appasamy Reddiar had handed over the original Will to them. The Will was not the creation of the Defendants 1 to 3, but it was voluntarily executed in favour of the Defendants 1 & 2 out of love and affection.

(iv) It is not correct to say that the Third Defendant used to take him to Tiruvannamalai for treatment and during that period, the deceased Appasamy Reddiar had executed the Will under the undue influence and coercion of the Defendants 1 to 3.

(v) Appasamy Reddiar was in a sound disposing state of mind at the time of execution of the Will. Even during the life time of Appasamy Reddiar, the First Defendant alone had been assisting him in all his activities and not the Third Defendant. The First Defendant alone is in possession of the Suit properties and not the Third Defendant.

(vi) The First Defendant and his wife alone are the Legal Heirs of Appasamy Reddiar as per the Will and therefore, they are entitled to the Suit properties. The Plaintiff has no manner of right, title or interest over the Suit properties and this First Defendant's possession over the Suit properties is lawful. The First Defendant alone is entitled to recover the rent from the Fourth Defendant and the Defendants are not liable to pay Mesne Profits to the Plaintiff.

(vii) The Plaintiff owned 1.60 acres of land besides 50 sovereigns of jewels and had Fixed Deposit in the Bank of Baroda and therefore, the deceased Appasamy Reddiar did not provide anything in the Will.

(viii) The Fourth Defendant has advised both the parties to get Succession Certificate to prove as to who is the Legal Heir of the deceased Appasamy Reddiar to receive the rent. Hence, prayed for dismissal of the Suit.

6. After formulating necessary issues based on the pleadings of the parties to the Suit, the parties to the Suit were directed to face the trial. On evaluating the evidences, both oral and documentary, the Trial Court had decreed the Suit.

7. On Appeal, the findings of the Trial Court were set aside and the Appeal was allowed. As against the Judgment and Decree of the First Appellate Court, the present Second Appeal has been filed.

8. This Second Appeal came to be admitted on the following substantial questions of law:

a. Whether the learned District Judge is correct in law in coming to the conclusion that Ex.B7 has been validly executed totally overlooking the fact that Ex.B7 has not been proved in accordance with the provisions of Section 68 of the Evidence Act especially when the execution of Ex.B7 is shrouded in suspicious circumstances?

b. Whether the Lower Appellate Court is correct in law in reversing the well considered Judgment and Decree of the learned Additional Sub-Court, Tiruvannamali and is right in holding that Ex.B7-Will is validly executed especially when the Appellant has set forth the suspicious circumstances surrounding the execution of Ex.B7-Will?

c. Whether the Lower Appellate Court being the final Court of fact is correct in law in not construing the documentary and oral evidence from the correct stand point and perspective?

9. Heard M/s. P.T Asha, learned Counsel appearing for the Appellants and Mr. Udayakumar, learned Counsel appearing for the Respondents.

10. The learned Counsel for the Appellants vehemently contended that the alleged Will-Ex.B7 is a forged and fabricated one and it was obtained, under coercion, from the deceased Appasamy Reddiar by the Defendants and therefore, Ex.B7 is not valid.

11. The learned Counsel has also submitted that since the Will was executed at the instance of the Defendants, the properties already sold were included in the Will and besides this, nothing is whispered about the Plaintiff, who is the wife of the deceased Appasamy Reddiar.

12. The learned Counsel for the Appellant has also added that since the alleged Will has been executed without allotting any share to the Plaintiff in the Suit properties or no reasons have been assigned for such non-allotment of any property as her share, the inevitable presumption should be that the Will is forged and concocted one and that it is invalid in law.

13. In support of her arguments, the learned Counsel appearing for the Appellants has relied on the following decisions:

(i) Benga Behera v. Braja Kishore Nanda, 2008 (1) LW 241;

(ii) Joseph Joseph Antony Lazarus (Dead) By Lrs. v. A.J Francis., 2006 (2) CTC 756 (SC) : (2006) 9 SCC 515;

(iii) H. Venkatachala Iyengar v. B.N Thimmajamma, AIR 1959 SC 443 (V 46 C 56); and

(iv) Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687.

14. On the other hand, the learned Counsel for the Respondents/Defendants has submitted that the execution of the Will was proved as required by law and therefore, it is valid in law.

15. The learned Counsel has also submitted that by examining the Attesting Witnesses, the competence of the testator has been proved and thereby, the Defendants 1 & 2 have discharged their onus.

16. In support of his contentions, the learned Counsel appearing for the Respondents has relied on the following decisions:

(i) Corra Vedachalam Chetty v. G. Janakiraman, 2001 (3) CTC 283 (DB);

(ii) Daulat Ram v. Sodha, 2004 (5) CTC 790 (SC);

(iii) Meenakshiammal (Dead) through L.Rs v. Chandrasekaran, (2005) 1 SCC 280; and

(iv) Pentokota Satyanarayana v. Pentakota Seetharatnam, (2005) 8 SCC 67.

17. In this Appeal, three Substantial Questions of Law were framed for consideration of this Court. The first Substantial Question of Law is as under:

A. Whether the learned District Judge is correct in law in coming to the conclusion that Ex.B7 has been validly executed totally overlooking the fact that Ex.B7 has not been proved in accordance with the provisions of Section 68 of the Evidence Act especially when the execution of Ex.B7 is shrouded in suspicious circumstances?

18. To decide whether Ex.B7 is valid or invalid, it will be very useful to refer to the dictum laid down by the Apex Court. In Benga Behera v. Braja Kishore Nanda, 2008 (1) LW 241, in Paragraph 40, the Division Bench of the Hon'ble Apex Court has observed 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 the executant. (See Madhukar D. Shende v. Tarabai Aba Shedage., (2002) 2 SCC 85 ; Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91; and Bhagatram v. Suresh, (2003) 12 SCC 35 : 2004 (2) LW 355).”

19. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, 2007 (2) CTC 172 (SC) : 2006 (14) SCALE 186, the Hon'ble Apex Court has held as follows:

“Section 63 of the Indian Evidence Act lays down the mode and manner in which the execution of an unprivileged Will is to be proved. Section 68 postulates the mode and manner in which proof of execution of document is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one Attesting Witness, if an Attesting Witness is alive subject to the process of the Court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Indian Evidence Act, execution must be proved at least by one of the Attesting Witness. While making attestation, there must be an animus attestandi, on the part of the Attesting Witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable. 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 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.”

20. Even in the decision relied on by the learned Counsel for the Appellants reported in Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687, while speaking on behalf of the Division Bench of the Hon'ble Apex Court, has made reference to the decision in H. Venkatachala Iyengar v. B.N Thimmajamma, AIR 1959 SC 443, wherein the Division Bench of the Apex Court has observed as under:

“16. This Court in H. Venkatachala Iyengar v. B.N Thimmajamma, AIR 1959 SC 443, opined that the fact that the Propounder took interest in execution of the Will is one of the factors which should be taken into consideration for determination of due execution of the Will. It was also held that one of the important features which distinguishes Will from other documents is that the Will speaks from the date of 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. It was also held that the Propounder of Will must prove:

(i) that the Will was signed by the Testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and

(ii) when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of Testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of Propounder, and

(iii) If a Will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein. It was moreover held:

“20. There may, however, be cases in which the execution of the Will may be surrounded by suspicious circumstances. The alleged signature of the Testator may be very shaky and doubtful and evidence in support of the Propounder's case that the signature in question is the signature of the Testator may not remove the doubt created by the appearance of the signature; the condition of the Testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the Will may otherwise indicate that the said dispositions may not be the result of the Testator's free Will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the Testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last Will of the Testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.”

21. His Lordship has also made reference to the decision of the Apex Court in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, 2007 (2) CTC 172 (SC) : 2006 (14) SCALE 186, wherein it has been held as under:

“33. 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 Shedage, (2002) 2 SCC 85; and Sridevi v. Jayaraja Shetty, (2005) 2 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.”

22. In the instant case on hand, Appasamy Reddiar had executed the Will Ex.B7 in favour of the Defendants 1 & 2 on 30.7.1993 To prove the execution of the Will, on the side of the Defendants, three Witness were examined. The First Defendant himself examined as DW1 and one Krishnamoorthy, who is the Document Writer, has been examined as DW2 and one Radhakrishnan, who is the Attesting Witness, has been examined as DW3.

23. DW3, who is the Attesting Witness, has deposed in his evidence that Appasamy had executed the Will in favour of the Defendants 1 & 2, in which, DW3 and one Subramanian, have signed as Attesting Witnesses, which was witnessed by the deceased Appasamy and both the Attesting Witnesses have witnessed each other putting their signature in the Will. Appasamy was in a sound disposing state of mind at the time of execution of the Will. The Will is Ex.B7 In his cross-examination, he had deposed that till his death, Appasamy was in good health. Since Appasamy was in a state of shivering, he put his thumb impression in the Will.

24. DW2, who is the Document Writer, has stated that at the time of execution of the Will, the said Appasamy came by walk and sat himself and he was not affected by paralytic. Appasamy has obtained the particulars of the land from Maniakarar.

25. The above evidence of DW2 & DW3 would clearly show that at the time of execution of the Will, 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. Since sufficient evidence has been adduced on behalf of the Defendants 1 & 2 to prove the execution of the Will, this Court is of view that the onus of the Propounder is discharged.

26. Even the dictum laid down in the decisions reported in H. Venkatachala Iyengar v. B.N Thimmajamma, AIR 1959 SC 443; and Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, 2007 (2) CTC 172 (SC) : 2006 (14) SCALE 186, which were referred to in Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687, cited and extracted supra, have been satisfied by the evidences of DWs. 2 & 3 as afore stated. Interestingly, the aforesaid decisions are relied upon by the learned Counsel for the Appellants. Therefore, even according to the Appellants, since the dictum laid down in the aforesaid decisions have been satisfied by the Defendants by examining DW2 & DW3, which were discussed at length as above, virtually, they do not have any case, or in other words, they had to accept the case of the Defendants.

27. On the other hand, the learned Counsel for the Appellants has contended that the Will was forged and fabricated one and that nothing has been whispered about the Plaintiff and it was executed at Tiruvannamalai Sub-Registrar Office, instead of Mangalam Sub-Registrar Office, which cannot be countenanced for the reason that as afore stated, the execution of the Will was proved in the manner it has to be proved, whereas the Plaintiff has not proved that the execution of the Will was shrouded by suspicion through oral and documentary evidence. In the absence of any piece of evidence in support of her case, the case of the Plaintiffs cannot be accepted.

28. In the present case on hand, the propounder of the Will has proved that the Will was signed by Appasamy; that at the time of execution of the Will, he had a sound disposing state of mind; and that he had reasons to exclude the Plaintiff, who did not care for him in his old age, which can be visualised from the evidence of PW1 & DW1 and the pleadings of both the sides.

29. As far as the theory of presumption is concerned, in the case on hand, as rightly held by the Lower Appellate Court and from the contents of the Will, it could easily be concluded that there was no understanding between Appasamy and the Plaintiff and there was no cordial relationship between them. No wife will allow her husband to be in the custody of her relatives or third persons, particularly, at the verge of his life. But it is clear from the evidences adduced on both sides that the deceased Appasamy was in the custody of the Defendants 1 to 3. Naturally, when a person is suffering from ailments at his old age and his wife is not willing to look after him, automatically, he cannot think of her, even for a moment, instead, he wanted to do whatever he can do, to the person, who is looking after him. That was happened in the case of the Plaintiff and that is the only presumption could be taken from the contents of the Will and the evidence adduced on both the sides.

30. In view of the above discussion and in the light of the decisions cited above, this Court is of the considered view that Ex.B7 is valid and that the First Substantial Question of Law is answered in favour of the Respondents/Defendants. Since the First Substantial Question of Law is answered in favour of the Respondents/Defendants, the Second and Third Substantial Questions of Law are also to be answered in favour of the Respondents/Defendants. Accordingly, they are answered in favour of the Respondents/Defendants.

31. In the result, the Second Appeal is dismissed confirming the Judgment and Decree of the First Appellate Court and the Suit is also dismissed. However, there will be no order as to costs.