IN RE: ANDAL AMMAL Vs. STATE

JUDGEMENT

(1.) THE Plaintiff in this suit filed O.P. No. 35 of 1966 for the grant of Letters of Administration with the will annexed to the property and credits of her deceased father Rayapadi Nallasubbaiya under Section 232 of the Indian Succession Act and under the relevant rules framed in the Original Side of this Court. It was sought to be proved in the common form but as persons interested came on record and attacked the validity of the will, it became necessary for the plaintiff to prove the will in solemn form. The defendant having entered a caveat and opposed the grant, the Original Petition was converted into a Testamentary Original Suit, T.O.S. No. 7 of 1966, and this is the suit which is now being adjudicated upon.

(2.) THE plaintiff's case is that Exhibit P -2 is the last will and testament of her father Rayapadi Nallasubbsiya and the said, will was executed by him duly at Madras on the 16th day of February, 1955 in the presence of witnesses and the same has also been registered in the office of the Sub -Registrar of Sowcarpet as Document No. 3 of 1955 in Book III. The deceased left, besides the plaintiff, another daughter Chengammal who is the defendant in this action. The plaintiff states that the will having been executed in accordance with the prescribed mandates of the statute, she is entitled to the grant as prayed for. The defendant, however, filed a written statement stating that the grant ought not to be made in favour of the plaintiff an the ground that no will as alleged by the plaintiff was executed by the deceased, and even if it was so executed by the deceased, it was under the influence of the plaintiff and the will was not executed whilst the deceased was in a free and disposing state of mind. Her main grievance is that as no provision has beep made to her and as there is no reason for such differentiation there is a presumption that the will have been brought about by the undue influence brought to bear upon the deceased by the plaintiff, her husband and others. Hesitantly the defendant pleaded that on the date of death of the deceased his absolute title to the property was in jeopardy as by then the High Court in A.S. No. 136 of 1957, held that the properties which are the subject -matter of the will were the properties of the wife of the deceased. I used the word hesitantly because the judgment of this Court in A.S. No. 136 of 1957 was reversed in L.P.A. No. 13 of 1961, the judgment in which was pronounced by this Court on 7th March, 1963. Exhibit P -1 is the judgment in the said Letters Patent Appeal. Thus, the relevant dates for purposes of Chronology are (1) 16th February, 1955 the date of will, (2) 26th September, 1956 the date of judgment of the first Court in which the defendant claimed that the properties were that of her mother's, (3) 28th October, 1960, the date of the appellate decree in A.S. No. 136 of 1957, High Court, Madras, (4) 19th January, 1962, the date of death of the deceased, and (5) 7th March, 1963, the date of judgment in L.P.A. No. 13 of 1961. I may at once dispose of the last contention of the learned Counsel for the defendant that on the date of death of the deceased he cannot be deemed to have necessary title to the suit properties which enabled him to deal with the properties in a testament. This is an argument without any substance, because on 7th March, 1963, the title of the deceased to the properties was upheld by this Court and on. such upholding it dates back to the date of the will, namely, 16th February, 1955. It is also to be noted that on 16th February, 1955, the deceased had the necessary power to subject his properties under a testamentary disposition and that capacity to dispose of the properties by a will having been ultimately upheld by this Court, it cannot be contended by the defendant that the will should fail because of an intermediary decision of this Court in A.S. No. 136 of 1957 wherein his title was not approved.

(3.) ON the frame of the issue, the onus is on the defendant. But as initially the burden is on the plaintiff who has come up to prove the will in solemn form, the plaintiff opened the case and examined the witnesses on her side. As already stated by me, the will was executed on 16th February, 1955 and registered on 17th February, 1955. The testator lived for seven long years thereafter and died on 19th January, 1962. P.W. 1 one of the attesting witnesses, who impressed me very much, would state that he knew the family of the testator for a considerable length of time and that he attested the will. The plaintiff originally sought to prove the will in a common form and in the said proceedings, P.W. 1 filed an affidavit to the effect that he was present along with the other attesting witness, Tulasi Das, on 16th February, 1955 at the house of the deceased at No, 30, Kutti Maistry Street and that he and the other attesting witness did see the deceased set his right thumb impression at the foot of the testamentary paper Exhibit P -2. This was sufficiently explained by him in the witness box. He admitted candidly that he was not present when the will was signed by the testator by affixing his right thumb impression. But he would state that as soon as he was called to attest the instrument, he expressed a desire that he would read the will and read it loudly to the testator himself so that he could find out from him whether the testator was acknowledging it as his own. His evidence is that on the testator having no objection for this witness reading out the will, he read out the same to him and the testator is said to have told him that he agreed to the contents. This is a case in which the attesting witness swears that the testator acknowledged the will as his own, and the normal inference is that the right thumb impression affixed on the said will has been so affixed by the testator out of his own free will and volition and that was the thing which he unreservedly expressed to the witness P.W. 1 when he read over the testamentary instrument to him. This is, therefore, a case in which the testator acknowledged the correctness of the will and therefore the thumb impression affixed thereto and this is definitely permissible in law. The object of attestation is for the testator to know that he has ocular evidence of the instrument having been subscribed by the witnesses. In so far as the attesting witnesses are concerned, the only statutory requisite is that they should have the necessary animus testandi or intention to attest this document. In the instant case the witnesses attested the testament so that they could bear witness to the fact that the will was acknowledged to be the will of the deceased. Such acknowledgment by the testator to P.W. 1 that he has made the will and therefore signed the same is equivalent to actually executing the will in the presence of the witnesses. In fact, the proposition that if one of the attestors speak to the signature of the testator, then it is enough and no further probe is necessary to satisfy whether the signature as acknowledged has been affixed. As pointed out by a Full Bench of this Court in Ganshamdoss v. Gulab Bi Bai : AIR1927Mad1054 a personal acknowledgment of execution need not necessarily be restricted to an express statement to that effect, but may include words or conduct, or both, on the part of the testator which may be construed unequivocally as such an acknowledgment. In this case, by the conduct of the testator it is proved that he has acknowledged the will and therefore the necessary inference has to follow that the testator has duly executed the will by affixing his right thumb impression. P.W. 3 would state that in spite of her efforts she is unable to get the second attesting witness. But there is evidence of P.W. 1, which I accept, that he attested the will of that. The second witness Tulasidoss was also present and he attested the same in the presence of the testator. I am therefore satisfied that the will has been duly executed and has been duly signed by the deceased.