JAYALAKSHMI AMMAL Vs. K LAKSHMI IYENGAR

JUDGEMENT

(1.) ONE Rajagopala Iyengar died on 10. 1. 1976, leaving his first wife by name Jayala-kshmi Animal, the petitioner herein, and second wife dr. Kamala. The latter filed a suit O. S. No. 55 of 1976 on the file of Sub Court . Thanjavur, for partition and separate possession of one half of the properties left by the deceased husband. The suit was contested by the petitioner mainly on the ground that Rajagopala Iyengar had executed a will disposing of his properties in a particular manner. The Subordinate Judge, thanjavur, rejected the contentions of the petitioner and passed a preliminary decree on 29. 11. 1980 declaring that the plaintiff was entitled'to half share in the properties mentioned in the decree. The petitioner filed a. S. No. 391 of 1981 in this Court challenging the decree. The appeal was dismissed on 22. 6. 1987. Dr. Kamala died on 1. 12. 1987. The respondent filed an application for passing of final decree along with an application to bring herself on record as the legal representative of the deceased plaintiff. The respondent claimed that the deceased had bequeathed her properties by a registered will dated 27. 1. 1976 in her favour and thus, she was the only person entitled to the properties of the deceased. The petitioner contested the application challenging the genuineness and the validity of the will propounded by the respondent. The Subordinate Judge, Thanjavur, has accepted the case of the respondent and ordered her application to implead herself as a party to the proceedings in her capacity as legal representative of the deceased plaintiff. It is the said order which is questioned in this revision petition.

(2.) IT is argued vehemently by learned counsel for the petitioner that the evidence adduced on the side of the respondent in the court below does not satisfy the requirements prescribed by the Evidence Act and the indian Succession Act for proving due execution of a will. According to learned counsel, the burden is on the respondent, the propounder of the will, to prove that the same was executed in accordance with the procedure prescribed by law and in the present case, the respondent has miserably failed to do so. IT is argued that the evidence of the Sub Registrar, who has been examined as P. W. I, who proved the registration of the will, cannot be treated as evidence of due execution of the will and the evidence of P. W. 2, a vakil's clerk, is not sufficient in law to prove the due attestation of the will. In short, his contention is that the evidence placed before court by the respondent is no evidence in law and the order of the lower court is. therefor e , vitiated by illegality. He submits that at any rate, this Court should interfere under Sec. 115 of the Code of Civil Procedure in the interests of justice. According to him, justice requires that the surviving widow of the deceased Rajagopala Iyengar , should take his estate in entirety as against a sister of the other widow, who claims only as a legatee under the will.

(3.) THE law on this subject is found in Secs. 47 and 67 to 69 of the Indian Evidence Act. See. 67 of the Evidence Act requires that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting must be proved to be in his handwriting. Sec. 47 of the Evidence Act makes relevant the opinion of any person acquainted with the handwriting of the person by whom the document is supposed to be written or signed that it was or was not written or signed by that person. THE explanation to Sec. 47 on which considerable reliance is placed by learned counsel for the petitioner, is in the following terms: 'a person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents, purporting to be written by that person have been habitually submitted to him.' Sec. 68 of the Evidence Act requires that in order to prove a document required by law to be attested, at least one attesting witness should be called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. THE proviso contains an exception and excludes a document not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, unless its execution is specifically denied. A will even if registered, falls under the main Section, as it is excluded from the purview of the proviso. Sec. 69 of the Evidence Act provides that if no attesting witness can be found, it must be proved that the attestation of at. leas t one attesting witness is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. Thus, See. 69of the Evidence Act requires proof of (1) the signature of atleast one witness and (2) the signature of the person executing the document. It is not necessary, however, for the purpose of Scc. 69 of the evidence Act that the same witness must prove the signature of the attesting witness and also the signature of the executant. THE two requirements can be satisfied by two independent witnesses.