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    Second Appeal 1675 Of 1984

    Decided On, 30 March 1998

    At, High Court of Judicature at Madras


    For the Appearing Parties: Venkatachalapathy, Advocate.

Judgment Text


( 1 ) FIRST defendant in o. S. No. 306 of 1984 on the file of the District Munsif court at paramakudi is the appellant. He died after institution of the Second appeal and the additional appellants have been impleaded as his legal heirs.

( 2 ) THE Plaint property was acquired by one Thulasiammal on 2. 11. 1959 as evidenced in Ex. A. 1 for a consideration of Rs. 700/ -. Ex a. 2 is also another deed in regard to the plaint property which stands in the name of the Thulasiammal. Thulasiammal had five children, the first defendant is one of the sons. The other children are Subramania Chettiar, thangathayammal, Guruswamy and Vedavalli thangathayammal and Vedavalli pre-deceased thulasiammal. Vedavalli had three children who are Vemburammal the first plaintiff, one murugesan and one Muthulakshmi. The first plaintiff has married Guruswamy Chettiar, who is a son of Thulasiammal.

( 3 ) IT is the case of the first plaintiff that late Thulasiammal executed a registered Will ex. A. 5 dated 9. 4. 1976. As per the said Will, all the properties which belonged to Thulasiammal were bequeathed to the first plaintiff. The first plaintiff had executed mortgages in respect of plaint property and plaintiffs 2 to 5 are impleaded in the suit along with the first plaintiff seeking relief in the plaint. The suit was to declare their right over the plaint property and for consequential injunction restraining the defendants from interfering with their possession.

( 4 ) FIRST defendant in his written statement contended that the sale deed in favour of his mother was benami. He said that he was in foreign countries during the relevant time and he had incurred debts. Therefore, to shield the properties, form his creditors in the foreign country, he had purchased the property in the name of his mother in his native place. It is his case that he sent money form the foreign countries for purchasing the property. Therefore, it is contended that thulasiammal did not have any right over the plaint property and therefore, she did not have any right to dispose of the same by a testamentary disposition. It is invalid.

( 5 ) IT is further contended that the Will executed by the deceased is invalid and the same is shrouded by suspicious circumstances. It is the case that ever since he came to India, he continued to be in possession of the property and he has also executed a mortgage in favour of the second defendant and they are

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n exclusive possession. He prayed for dismissal of the suit. ( 6 ) THE trial court as per the Judgment dated 15. 11. 1983 dismissed the suit. The trial court was of the view that the plaint property was acquired in the name of the deceased thulasiammal out of the funds sent by the first appellant. It also came to the concision that thulasiammal did not have any sufficient funds to purchase the properties and there was intention on the part of the first appellant to acquire the property as benami. It also came to the conclusion that some of the documents pertaining to the plaint property are of the first defendant. That also would show that he was the custodian of the title deeds. The factum of possession was also found in his favour. Regarding the Will, the trial court held that that is not properly proved and suspicious circumstances are not removed and consequently the suit was dismissed. ( 7 ) AAGGRIEVED by the judgment and decree of the trial court, the plaintiffs preferred a. A. No. 199 of 1983 on the file of the district Judge, Ramanathapuram. ( 8 ) THE lower appellate court reappreciated the entire evidence and came to the conclusion that both the findings of the trial court regarding benami nature of the property and execution of Will cannot be supported and therefore by setting aside the judgment and decree of the trial court, allowed the appeal and passed a decree in favour of the plaintiffs. The judgment of the lower appellate court is assailed by the first defendant in this second appeal, on the following substantial questions of law. " (A) Whether the absence of plea regarding the material facts to the Will would disable the plaintiffs to relief based on the Will for violation of Section 276 of the Indian Succession Act and order 7, Rule 1 of the Code of Civil procedure? (b) Whether Ex. A. 5 is vitiated by the unexplained suspicious circumstances governing the cramped signature of p. W. 2 and the total disinheritance of the son and other lawful heirs and the bequest of the entire property to the propounder the first plaintiff, with whom the appellant lived in the material time? (c) Whether the compromise decree between the parties under Exs. A. 9 and a. 10 would bar the first plaintiff from the re-opening the questions relating to the truth and validity of Exs. A5 Will and her title thereunder, as estoppel by her conduct, if not by judgment? (d) When the ostensible purchaser under Exs. A1 and A2 is proved to be a woman of no means, whether the plea of benami purchased by the appellant is not acceptable?"( 9 ) REGARDING the question of benami nature of the property that the first appellant has purchased the property benami in the name of his mother, the lower appellate court has rightly held that the deceased appellant has not proved that he has sent money for the purchase of the property in the name of his mother. It further came to the conclusion that there is also no evidence to show that he was a debtor while he was in foreign country and with an intention to shield the properties "from the creditors he acquired the Same in the name of his mother. The lower appellate court also held that when the intention is not proved there cannot be any question contending that the purchase is a benami one. The intention to purchase the property in the name of any other person is one of the material facts which the appellant was bound to prove. It is further contended that during the relevant time, when the property was purchased the first appellant was already married, that too, two or three months before acquisition. Therefore, if he wanted to shield the property nothing prevented him from purchasing the property in the name of his wife, it further came to the conclusion that late, thulasiammal had funds. Purchase the property and she had ornaments and other income of her own for the said purpose. The antecedent title deed was also in the possession of Thulasiammal and she had lands in her name. Patta also stands in her name and the revenue authorities have also recognised. Thulasiammal as the owner. It also came to the conclusion that she is in possession and she was dealing with the properties. The lower appellate court finally held that the burden of proving the benami nature of the property is only on the person who pleads that he has purchased the property benami in the name of someone and the first appellant miserably failed to rebut the presumption. ( 10 ) LEARNED counsel for the appellant wanted this court to reconsider the entire evidence and to come to a different conclusion. According to the counsel, the trial court has given better reasons for holding that the property is a benami property. He also attempted to persuade to reconsider the evidence over and again. ( 11 ) TAKING into consideration in my limited power under Section 100 of the Code of civil Procedure, I do not think that I can appreciate the evidence for the purpose for coming to a different finding. It may be said that the appellant has also no case that the lower appellate court has not considered any material evidence it has taken into consideration was irrelevant matters. As a final court on facts, the Lower appellate court has considered and discussed the entire evidence in detail and had come to a conclusion that the appellant has to discharge his burden. The circumstances are also against the appellant. I do not find that any ground has been made out to enter into a different finding. Therefore, the substantial question of law 'd' is found against the appellant.( 12 ) ALL the other questions of law could be considered together. All the other questions relate to the validity of Ex. A. 5 Will, alleged to have been executed by Thulasiammal, Ex. A. 5 is dated 9. 4. 1976, but the same is registered only on 3. 6. 1976 i. e. about two months after the date of execution. In Ex,a. 5. two brothers of testatrix have signed as attestors, of whom, one of them has identified the same before the Sub-Registrar. One of the witnesses muthiah is one of the plaintiffs in this case who also claims a mortgage right over the property, P. W. 3 is one of the attestors. I find that there are several attestors to the Will, out of whom two persons were examined in this case. P. W. 2 Muthiah who is the second plaintiff in this case is one of the attestors in the Will. ( 13 ) THE Court is bound to take into consideration the evidence of witnesses and if the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mental capacity and if the attestation is property proved in accordance with Section 63 of the Indian Succession Act, the burden of proof that the Will is procured under vitiating circumstances is on the persons who challenged the will. The initial burden of proving the Will, i. e. due execution and attestation and also the fact that the document was written and signed by the testator by understanding the real nature of it, by the propounder, stands discharged on proof of above facts. ( 14 ) IT is also settled law that if there are certain suspicious circumstances of disinheriting a natural heir, that the signature of the testator was shaky, in the sense, it is feeble and debilitated, the propunder is bound to remove all the suspicions. But, in the case where Will is challenged on the ground of undue influence or coercion, the burden is on the person who impeaches the Will. ( 15 ) IF I go by the said principle, I do not think that the evidence of P. W. 1 could be accepted in the case. P. W. 1 is one of the of the plaintiffs who wanted relief in the case. He is a mortgagee for the plaint property. Naturally, he cannot be said to be a dis-interested person, of course, he proves due execution and attestation, he also stated that the said attestors as well as the testatrix mutually saw affixing signature. He also said that the late Thulasiammal hails from a family which is financially sound. He also said that late Thulasiammal affixed thump impression after understanding the contents and consequences of her dis-possession. There is a statement in the Will that since she was not having proper vision, she was affixing thumb impression, though she knew to read and write. When that is the statement of the Will, p. W. 1 said that during the relevant time the late Thulasiammal was having good vision. ( 16 ) AS I said, the evidence of P. W. 1 is not only interested, but to certain extent, it goes against the case of the plaintiffs. The other attestor who is examined as P. W. 3 also speaks about the due execution and attestation by the witnesses and also the signature of the testatrix. In his evidence, he said that late Thulasiammal bequeathed all her properties in favour of her grand-daughter and during the relevant time, the testatrix was also residing with her. He also said that he went to the Registrar's office and at that time her brother Gururnurthy was also there. Another cousin and close relative of the testatrix by name Murugesu was also seen at the place. He also speaks about the other witnesses and said that the document writer, after preparing the document read over to the testatrix and the testatrix, after understanding the contents, affixed the thumb impression. He also said that Gurumurthy and murugesu also affixed their signatures. He also said that he also saw when Thulasiammal affixed her thumb impression and they also affixed signature in her presence and to her knowledge. He has stated that he had identified the signature. Even though he had been cross-examined in detail, 1 do not think that any material has been taken to disbelieve the evidence. The evidence of P. W. 3 fully supports the case of the plaintiffs.( 17 ) IT is alleged by the learned counsel for the appellants that the natural heirs are not provided under the Will. It is also contended that the Will is registered after two months after the execution of Ex. A. 5 and there is no proper explanation for such a delay of more than two months. ( 18 ) I do not think that such a contention could be accepted. In Rabindranath mukherjee v. Panchannav Banerjee this question was considered by their Lordships. . Their Lordships held thus. "the circumstances of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of Will is to interfere with the normal line of succession. So, natural heirs would be debarred in every case of Will; of course it may be that in some cases they are fully debarred and in others only partially. "their Lordships also held that merely because the heirs are dis-inherited, that cannot be taken as a suspicious circumstance. ( 19 ) IN this case, all the natural heirs are dis-inherited and the grand daughter alone is provided under the Will, It is in evidence that late Thulasiammal, during her last days, was living only with her grand-daughter. She did not even provide anything under the Will even to her son, who is none-else, but the husband of the grand-daughter. If only the testator disinherits some of the natural heirs and some of them are provided, then the question may arise as to why the testator preferred one against the others. In that case, the court can expect that better reasons will have to be provided and the court would expect legitimately why he/she has been excluded. In a case where the testatrix disinherited all the natural heirs, she has not been partial. She did not want to provide any of the natural heirs and she treated them alike. ( 20 ) IN this case, two of the attestors are her own brothers. Though they were not examined, their identity is not disputed by anyone. We must also note that even before the sub-Registrar, the second attestor who is one of the brothers, of the testatrix, identified the deceased testatrix and it was thereafter the Subregistrar registered the Will. Within a period of two months, if Thulasiammal was not in a proper state of mind nothing prevented her cancelling me same. But, she insisted on getting it registered, waited for nearly tow months for the said purpose and with the same brother she had gone to the Sub-Registrar's office and got it registered. It must also be noted that the brother of Thulasiammal is a disinterested person. He is not getting any portion of the property, nor any of the relatives are getting any shares thereon. ( 21 ) ON going by the evidence of these witnesses there is not even a suggestion that the registration formalities were done in a perfunctory manner. Law presumes that all formalities are done in accordance with law and following the procedure. In this case, in ex. A. 5 the Sub-Registrar has certified that she admitted execution of the Will and after admission she had affixed her thumb impression.( 22 ) IN Purnima Devi v. Khagendra narayan their Lordships held thus"if a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But, the mere fact that a Will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the Will. But, if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the Will did not read it over to the testator or did not bring home to him that he was admitting the execution of a Will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the Will) that the testator knew that it was a Will the execution of which he was admitting, the fact that the Will was registered would not be of much value. Registration may take place without the executant really knowing what he was registering. "( 23 ) IN my view, the registration of a Will to a great extent proves the genuineness in this case. The registration formalities were never doubted by anyone and the person who identifies the signature of the person is none else than his brother, against whom nobody has got any complaint that he is not an impartial person. The Sub Registrar also identifies and affixed his signature and also certifies before whom the testatrix admitted execution. In the decision in Rabindra Nath Mukherjee's case (supra) their Lordships held thus:"in case where Will is registered and the sub-Registrar certifies that the same had been read over to the executor who, on doing so, admitted the contents, the fact that the witnesses to the document are interested loses significance. The documents at hand were registered and it is on record that the Sub-Registrar had explained the contents to the old lady. Objection as regards 'ubiquitous' cannot be there if there be other circumstances on record to show the voluntary character of the document. Such circumstances were present in this case. 'taking total view of the circumstances which has to be the approach, it must be held that the courts below overplayed some circumstances which they regarded as suspicious and somehow missed some circumstances which boistered the case of the propounders. "( 24 ) IN yet another recent decision vrindauaibai Sambhaji Mane v. Ramachandra Vithal Ganeshkar and Ors. 3 their lordships had held thus, in paragraphs 14 and 15:"as far back as in 1894 the Privy Council in the case of Choteynarain Singh v. Mussamat Ratan Koer observed that in the case of execution of a Will, an improbability must be clear and cogent. It must approach very nearly to, if it does not altogether constitute, an impossibility. This was reiterated by the Calcutta high Court in' the case of Kristo gopalnath v. Boidya Nath Khan. It said that when a court is dealing with a testamentary case where there is a large and consistent body of testimony evidencing the signing and attestation of the Will, but where it is suggested that there are circumstances which raise a suspicion and make it impossible that the Will could have been executed, the correct line of approach is to see that the improbability in order to prevail against such evidence must be clear and cogent and must approach very nearly to , if it does not altogether constitute, an impossibility. There is no such improbability about the Will in the present case. There is also a large body of case law about what are suspicious circumstances surrounding the execution of a Will which require the propounder to explain them to the satisfaction of the court before the will can be accepted as genuine. A Will has to be proved like any other document except for the fact that it has to be proved after the death of the testator. Hence, the person executing the document is not there to give testimony. The propounder, in the absence of any suspicious, circumstances surrounding the execution of the Will, is required to prove the testamentary capacity and the signature of the testator. Some of the suspicious circumstances of which the court has taken note are: (1) The propounder taking a prominent part in the execution of a Will which confers substantial benefits on him; (2)shaky signature; (3) A feeble mind which is likely to be influenced; (4) Unfair and unjust disposal of property. Sufficient it is to say that no such circumstances are present here. "( 25 ) IF 1 go by the above legal position which I am bound to follow, I do not think that the first appellant was correct in submitting that the executed Will is not proved or there are alleged suspicious circumstances. As was held in Vrindavani Bai Sambhaji Mane's case, the correct line of the approach is to see that the improbability in order to prevail against such evidence must be clear and cogent and must approach very nearly to, if it does not altogether constitute an impossibility. I do not think that the appellant was successful in proving the same in that manner. ( 26 ) LEARNED Counsel for the appellants submitted that on the date when Ex. A. 5 was registered, the testatrix has also executed a power of attorney and the Power Agent is none else than her son Guruswamy, who according to the appellants, has played a good deed in getting the Will.( 27 ) IN my view, the above suggestion has also no basis. In the power of attorney also, one of the attestors in the Will identified the testators before a Sub-Registrar, though he is not a witness to the power of attorney. One ramasamy, one of the attestors is a signatory arid there is also another independent witness. Merely because on the same date two documents have been registered that by itself, cannot be treated as suspicious circumstance. It only proves that during the relevant time, the testatrix was living with Gurusamy and the first plaintiff was looking after her affairs. That was the relationship between the testatrix and the beneficiaries. There is nothing improbable that ultimately she bequeathed her property to that person who looked after her. It is only a natural disposition. ( 28 ) EVEN though the learned counsel for the appellants relied on the other decision of this court as well as the Supreme Court, I do not think that I should make reference to the same, especially when 1 do not find any ground to disbelieve the evidence of P. W. 3, and also taking into consideration the overall circumstances of the case. It must also be noted that long before the institution of the suit, thulasiammal and the first appellant were not maintaining good relationship. There had been paper publication and reply publications regarding the loss of documents and the ownership of the property etc. Till her death, the misunderstanding between the mother and the son was never cleared and the deceased had to depend on her grand daughter, the first plaintiff in this case. Under the above circumstances, 1 feel that the Will Ex. A5 was voluntarily executed by the deceased and she was aware of the consequences of her disposition. ( 29 ) IT is submitted by the learned counsel for the appellants that it is the duty 6f the plaintiff to have mentioned in the pleading itself that Ex. A. 5 was duly executed and duly attested, but there is no pleading in that regard in this case. He also relied on Section 267 of the Indian Succession Act for the said purpose. 1 do not think that such a contention has any merit. The alleged lack of pleadings does not affect the case of the plaintiffs since the evidence let in shows that the parties have understood the nature of dispute. ( 30 ) IN P. P. K. Gopalan Nambiar v. P. P. K. Balakrishnan Nambiar and Ors. 4, their Lordships held that if the Will is registered there will be an endorsement in the Will by the Registrar about admission of which will show that the testator was in a sound disposing state of mind and that it was executed out of testator's free will. In para 4 of the Judgment their Lord-ships observed thus:"admittedly, the Will was executed and registered oh 1-11-1955 and she died 8 years thereafter in year 1963. When the appellant had propounded the Will in his written statement, nothing prevented either the respondent or any of the contesting defendants to file a rejoinder, i. e. , additional written statement with leave of the court under Order 8, rule 9 pleading the invalidity of the Will propounded by the appellant. Nothing have been stated in the pleadings. Even in the evidence when the appellant was examined as D. W. 1 and his attestor as d. W. 2, nothing was stated with regard to the alleged pressure said to have been brought about by the appellant to execute the Will. In the cross-examination by the first respondent, no attempt was even made to doubt the correctness of the Will. "in this case, the allegations of vitiating circumstances etc. are not properly pleaded. The factum of registration of the Will, the procedure of registration etc, are not challenged. ( 31 ) IN view of the above, substantial questions of law 'a' to 'c are also found against the appellants. Consequently, the Second Appeal is dismissed. No costs. Appeal dismissed.

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