APPAVU MUDALIAR Vs. MANICKKAMMAL

JUDGEMENT

(1.) THE defendants 1 to 3 and 8 are the appellants. THEy succeeded before the Trial Court but lost in the first appeal. THE averments in the plaint in brief are as follows:(i) THE plaintiffs are the daughters and the defendants 1 and 2 are the sons of one Ponnaiah Mudaliar and Unnamalai Ammal both deceased. Both of them died intestate, the mother on 20-05-1978 and the father on 23-08-1979. THE third defendant is the son of the first defendant. THE eighth defendant is the sister of the third defendanint and daughter of the first defendant. THEre was a registered partition deed where the properties held by Ponnaiah Mudaliar was divided amongst him, his wife and the defendants 1 and 2. THE properties allotted to Ponnaiah Mudaliar are the A Schedule properties. THE properties allotted to his wife Unnamalai Ammal are the B Schedule properties. THE properties allotted to defendants 1 and 2 are C and D Schedule properties. E Schedule properties were kept in common between the defendants 1 and 2 who were directed to maintain the first wife of the first defendant out of the income. THE parents were living with their sons namely defendants 1 and 2. Ponnaiah Mudaliar was running a rice mill, which was earning a good income. Part of the property in C Schedule was sold by defendants 1 and 2 to the fourth defendant and therefore, he was made a party to the suit by way of amendment pleading that the sale was not binding on the appellant. THE fifth defendant was one of the tenant and therefore, is made a party to the suit. Sixth and seventh defendant are made parties likewise. In view of the contention of the first defendant that Unnamalai Ammal has executed a Will in favour of eighth defendant, the daughter of the first defendant of whom the B Schedule items 7 to 10 were bequeathed was also made a party to the suit by way of amendment. Since the defendants did not agree to divide the property, after the death of the parents, the suit had to be filed. (ii) THE first defendant filed the written statement in which he admitted the relationship but had denied that the appellants had died intestate. It was specifically pleaded that the father had executed a Will on 05-02-1979 bequeathing all the properties including the rice mill to defendants 1 and 2. THE Will was duly proclaimed during the funeral ceremonies and the beneficiaries had also taken possession of the properties as per the Will. It was also pleaded that by a settlement deed dated 17-08-1977 his mother had settled the plaint. Item Nos.1 to 6 of B Schedule property to D3 his son, which was accepted by him. He also pleaded that suit item Nos.7 to 10 of B Schedule were bequeathed by Unnamalai Ammal to her daughter Rajakumari under the Will dated 20-02-1978 which was also duly executed and attested. It was pleaded that Unnamalai Ammal executed the two documents voluntarily and she had some reason for bequeathing and setting properties as she did. THErefore, according to the first defendant, the suit had to be dismissed. (iii) THE defendants 2 and 3 filed a separate written statement. THEy too pleaded that Ponnaiah Mudaliar did not die intestate. He had executed a Will on 05-02-1979 which was attested and had excluded his daughters and therefore, the plaintiffs had no share in the A Schedule property. In his written statement too, there was reference to the settlement dated 17-08-1977 and the Will dated 20-02-1978. (iv) Before the Trial Court, the plaintiffs marked 12 documents, the defendants marked 28 documents. THE Commissioner's report was marked as Ex-C1. THE second plaintiff examined herself as P.W.1, the Advocate Commissioner as P.W.2 and the handwriting expert P.W. 3. On the side of the defendants, the second defendant was examined as D.W.1 the third defendant as D.W.2 D.W.3 is the attestor to Ex-B5 Will. D.W.4 is the scribe of Ex-B6 D.W.5 is another handwriting expert D.W.6 is a vakil's clerk. THE Trial Court dismissed the suit for partition holding that Ex-B4 settlement deed and Ex-B5 Will both by Unnamalai Ammal and Ex-B6, the Will of Ponnaiah Mudaliar had been duly proved. (v) THErefore, the plaintiffs filed A.S.No.272 of 1989. THE appeal was allowed on the ground that there are suspicious circumstances in the execution of Exs-B4 to B6. THE learned Single Judge did not take into account the evidence of either P.W.3 or D.W.5, the fingerprint experts not being impressed with their statements, but, however, held that the suspicious circumstances had not been properly explained by the evidence. Aggrieved by this, the present appeal has been filed.

(2.) MR. R. Subramanian, learned Senior Counsel for the appellant submitted that there are clear recitals in the documents Exs.B-4, 5 and 6 explaining as to why the daughters were not given anything. He submitted that as far as the settlement deed is concerned, it is registered and unless the executants of the said deed repudiate it, it must be held to be proved. He also submitted that though the scribe Rajagopal has not been examined, D.W.1, the attesting witness, has spoken of the execution and registration. He submitted that as regards Ex.B-5, D.W.1 is the scribe and D.Ws.2 and 3 are the attesting witnesses. They have spoken of its due execution and attestation and also the fact that the Will was read out to the testatrix. He submitted that the beneficiary under the Will is neither D.W.1 nor D.W.2, but one Rajakumari, who is the daughter of D.W.1's brother. He submitted that D.W.3 is a stranger and there is no reason why his evidence must be suspected. Except for a suggestion that D.W.3 and his father are the henchmen of the defendants, there is nothing in the evidence of D.W.3 that merits suspicion. The learned counsel submitted that there is evidence to show that the Will was read out to Unnamalai Ammal. According to the learned counsel, the Will was proved to have been executed by Unnamalai Ammal in a sound and disposing state of mind. Next is Ex.B-6, the Will of Ponnaiah. The learned counsel submitted that there were as many as four attesting witnesses and D.W.3, the son of the attesting witnesses, had identified his father-s signature. So, according to the learned counsel, since the attestation of one witness was proved, this Will was also duly proved.

(3.) (i) Section 63 of the Indian Succession Act reads as follows:-Every testator, not being a soldier employed in a expedition or engaged in actual warfare [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:--(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.- (ii) Section 68 of the Indian Evidence Act, 1872 reads as follows:-68. Proof of execution of document required by law to be attested.-If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been 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:Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied.-