MUTHU GOUNDAN Vs. PACHAYAMMAL

JUDGEMENT

(1.) This appeal arises out of a suit, O.S. No. 17 of 1941, instituted by the appellants in the Court of the Subordinate Judge of Coimbatore, for a declaration that the document which purports to be the last will and testament of one Peruma Goundan is not genuine and had not been executed by him while in a sound disposing state of mind. The defendants to the suit were Pachayammal the widow, Kolandai Goundan a sister's son of the testator, Kunjam-mal a brother's daughter, and one Palani Goundan, who has been appointed as trustee of a piece of land set apart for charity by the testator in the will. There was another suit, O.S. No. 56 of 1941, which was also disposed of by the same judgment. The latter suit was instituted by Pachayammal, the widow of the deceased testator, for the recovery of possession of an item of property which according to her belonged to the testator and had been taken unlawful possession of by the appellant. This suit has been dismissed by the Subordinate Judge, and there has been no appeal preferred against the decree therein. In both the suits, however, the main issue raised and determined was whether the document, Ex. P-i, is genuine, and is the last will and testament of Peruma Goundan. Peruma Goundan had two brothers who became divided from him in 1918. Appellants 1 to 4 are the sons of one of these brothers, by name Merappa Goundan. The fifth appellant, Nanjappa Goundan, is the son of the other brother, Sinna Goundan. Peruma Goundan died on the 14 August, 1938, leaving his widow Pachayammal, and no issue, male or female. The will bears the date the 10 August, 1938, and contains bequests in favour of the several defendants. The bequests in favour of all except Pachayammal are comparatively small, the bulk of the properties being given to Pachayammal herself. Among these legatees it is perhaps necessary to refer to Kolandai Goundan, the second defendant, who is a sister's son of the testator, to whom a piece of wet land, of the extent of 1.20 acres is bequeathed. As regards the appellants, who are the brothers sons and the reversioners to the estate, the testator gave his share in the reversion of certain properties set apart by Peruma Goundan and his two brothers for the maintenance of their mother. It is not suggested that the provisions of the will are unnatural or do not take account of persons who had a claim to the bounty of the testator.

(2.) The learned Subordinate Judge in an elaborate judgment has held on the evidence and the broad probabilities of the case that there was no doubt that Peruma Goundan executed the will Ex. P-I when he was in a sound disposing state of mind, and accordingly dismissed the suit. The learned advocate for the appellants has taken us through most of the evidence adduced in the case and to a large extent repeated the arguments which had been advanced in the Court below but without success. As our view of the evidence and the probabilities coincides with that of the learned Subordinate Judge, it is not necessary to discuss the evidence in any great detail. We think it sufficient to refer to the main features of the case as presented in the evidence for the purpose of the appeal. [His Lordship discussed the evidence and proceeded:]

(3.) Before we leave this witness Pachayammal, it is necessary to mention a circumstance of great importance to which this as well as other witnesses speak. The importance is due to the fact that it throws a good deal of light on the mental capacity of the testator on the morning on which the will is said to have been executed. It would seem that on the 9 August a suit was instituted against the testator and an application for attachment before judgment was also taken out. The summons in the suit and the notice of the application for attachment were brought to the deceased at about 9 a.m. on the morning of the 10 by an amin of the Court. According to Pachayammal, the testator took the summons and the notice and signed on both of them, Exs. P-3(a) and P-3(b). After service the amin took the thumb impression of the testator as he found that his hand was shaking as indeed it appears to be, judging from the signatures. The amin was examined by the District Registrar in the enquiry held by him in the appeal preferred against the order of the Sub-Registrar. The deposition of the amin has been marked as Ex. P-3. He has stated that he saw the testator on the morning of the 10 August and spoke to him. When the testator was asked to receive the summons and the notice he refused to receive them saying that he was ill whereupon the witness told him that he would have to return the summons as refused if he did not receive them. Then the witness was asked to read out the summons and the notice. They were then received by the testator who made the endorsement acknowledging the receipt. The witness has made the definite statement that the testator was fully conscious then and was able to understand what transpired and give a reply. No reason has been shown for discrediting the testimony of such an independent witness as this amin. The only suggestion that has been made is that he was probably influenced by those who were interested in the widow or perhaps those who were inimically disposed towards the appellants. There is absolutely no warrant for this suggestion and there is not the slightest reason for holding that there was a conspiracy for the purpose of supporting a forgery, such as it is attempted to be established. It was then attempted to get rid of this valuable piece of evidence by saying that the deposition is inadmissible in evidence. The objection does not appear to have been taken in the Court below, but all the same it is perhaps open to the appellants to say that evidence which is really irrelevant cannot be made use of for the purpose of the decision. The argument is that unless the District Registrar who took the deposition was " authorised by law to take it " within the meaning of Section 33 of the Indian Evidence Act the deposition is inadmissible. For the purpose of showing that the District Registrar in the enquiry he held was not authorised to take fresh evidence in appeal we were taken through some of the section of the Indian Registration Act and the rules framed thereunder. It may be mentioned at once that the Sub-Registrar purported to hold the enquiry under Secs.41(2)(a) and 35(3)(c) of the Indian Registration Act, 1908, on account of a denial of execution by the representatives of the deceased testator. The District Registrar when he came to write his order dealt with the matter before him as arising out of an application under Section 73 of the Indian Registration Act in respect of an order of refusal passed by the Sub-Registrar. If the District Registrar acted under Section 73(1) it is not denied that he had the power for the purpose of his enquiry to summon and enforce the attendance of witnesses and compel them to give evidence as if he were a Civil Court. What is argued is that the case fell not under Section 73 but under Section 72, because it is said that the refusal by the Sub-Registrar was not made on the ground of denial of execution by a representative of the testator and accordingly the proceeding before the District Registrar was an appeal under Section 72. Section 72(1) enacts as follows: Except where the refusal is made on the ground of denial of execution, an appeal shall lie against an order of a Sub-Registrar refusing to admit a document to registration...to the Registrar to whom such Sub-Registrar is subordinate and the Registrar may reverse or alter such order.