S SWAMY Vs. G KUMAR

JUDGEMENT

(1.) THE grant of Succession Certificate is being challenged in this appeal. THE Will of one Gopi Pillai dated 26.8.1979 is the basis of these proceedings. Gopi Pillai had two children through his first wife who are the appellants herein and one son and three daughters through his second wife. THE son is the respondent herein. It is not in dispute that the first appellant herein was not well disposed towards his father Gopi Pillai. During Gopi Pillai's life time, the father and son fought several legal battles. Gopi Pillai died on 12.9.1988. It is the case of the 1st appellant that on 11.9.1988, he executed a Will, thereby revoking all previous Wills. THE respondent herein applied for grant of Succession Certificate in his favour on the basis of the Will dated 26.8.1979. This was granted by the Court below against which the present appeal has been filed.

(2.) MR. T.V. Ramanujam, learned Senior Counsel appearing for the appellant submitted that the Will must be attested by two or more witnesses in accordance with Section 63 of the Indian Succession Act and therefore, the Will can be used in evidence only by calling at least one of the attesting witnesses for proving its execution as per Section 68 of the Indian Evidence Act. The scribe who wrote the Will dated 26.8.1979 is one Udayar Pillai who was examined as R.W.2. He is also the scribe of the Will dated 11.9.1988 propounded by the appellants herein. Learned Senior Counsel would submit that it is his practice to maintain a ledger of the copies of all the documents that he has written. He also submitted that it is Udayar Pillai's evidence that the Will was handed over to him by Gopi Pillai in 1979 without affixing his signature directing him to obtain the witnesses' signature and that since he could not go, his assistant Mani obtained those signatures from the attesting witnesses. Therefore, the learned Senior Counsel would submit that the attestation is not in conformity with the provisions of Indian Succession Act. When the witnesses had attested the Will even before the testator had signed, it will not amount to attestation. Further, when the scribe of the Will had stated that the testator and the attesting witnesses had not signed at the same time and had not seen each other affixing their signatures, the conditions regarding attestation had not been satisfied. On the contrary, with regard to the second Will dated 11.9.1988, the said Udayar Pillai had clearly stated that he and the other attesting witness had signed in the presence of Gopi Pillai and Gopi Pillai had also signed in their presence and that he had also read the Will for 10 minutes. Therefore, according to the learned Senior Counsel, while the second Will had been properly executed and attested, the first Will was not, and therefore, Succession Certificate ought not to have been granted. He also referred to the evidence of R.W.3 Dr. Muthiah, who had been examined to show that Gopi Pillai was quite conscious on 11.9.1988, the date of the second will. According to the learned Senior Counsel, in contrast to the clear and cogent evidence regarding the execution and due attestation of the second Will, the Will of the year 1979 is evidently not properly attested. He also referred to the evidence of P.W.2., the attesting witness of the first Will. The learned Senior Counsel submitted that, when the attesting witness does not even know the manner in which his signature was obtained, it was not open to the Additional Subordinate Judge, Tirunelveli to accept the attestation as proper attestation.

(3.) OF course, he also says that he does not know in how many pages Gopi Pillai signed in the 1979 Will which is Ex.P3 and he also says that he does not know with which pen, he and Sivaraman Pillai, the other attesting witness signed. It must be remembered that in 1991 when this witness was examined, 13 years had lapsed since the date of the execution of the Will. So the inability of the witness to answer to this question is really not material. The statement made by this witness which was pointed out by the learned Senior Counsel for the appellants which is extracted above only means that the witness has no knowledge that Udayar Pillai sent an assistant to obtain his signature. That does not in any way dislodge what he has clearly stated in the chief examination regarding the manner of attestation. In fact, immediately after this sentence that has been extracted in the paragraph above, he states as follows: Tamil