KALKANTHARAM RUKMANI AMMAL Vs. KA KI ANAKMA NAIDU

JUDGEMENT

(1.) The 3 defendant is the appellant. One Venkatasubbayya died on 6 April, 1904. He became a sanyasi on 2nd February, 1904, and it is alleged in the plaint that he left a Will, dated 2nd February, 1904 making certain dispositions of his property. The plaintiff claimed under a mortgage-deed dated 14 April, 1910, executed by defendants Nos. 1 and 2 and the 3 defendant's deceased husband. The 1 defendant was the sister's son of the testator and he also married the predeceased son's daughter of the testator. The 2nd defendant married the brother's daughter of the testator. The 3 defendant's husband is dead. The main pleas of the defendants in their written statements to be considered at present are that Venkatasubbayya became a sanyasi on 2nd February, 1901, that the Will referred to in the plaint was executed after he became a sanyasi, the exact date not being known, between the 9 and 12 of March and that it was ante-dated to 2nd February. Other contentions were raised which it is unnecessary to consider for the purpose of this appeal. The Will was registered on 17 March, and so far as it appears from the evidence there was no dispute raised as regards this Will till we come to the present suit. The plaintiff filed the suit on 4 April, 1922, so that we have to decide the question as to the exact date of Ex. B, the Will, twenty years after its execution and registration. The District Judge was of opinion that, although Venkatasubbayya became a sanyasi, he was not a true sanyasi under the Hindu Law having renounced the world and gone through the necessary ceremonies and that he did not divest himself of all the properties as required, but continued to deal with them and that his professed sanyasam, would not prevent his willing away the properties, even though the Will was executed after he became a sanyasi. In this view, he is of opinion whether the Will was executed on the 2 February, or subsequently, it will not make much difference, even though he was inclined to the view that the Will was executed subsequent to his becoming a sanyasi.

(2.) The first question that arises in this case is what was the date of the Will, whether it was executed on the 2nd or whether it was executed subsequently and ante dated? In cases where a document has been executed and registered and the question arises as to its date there can be little doubt that the presumption is that the document was executed on the date it bears. If any authority were needed for this proposition, I may refer to the decision of their Lordships of the Privy Council in Mina Kumari Bibi V/s. Bijoy Singh Dudhuria 40 Ind. Cas. 242 : 44 C. 662 at p. 671 : 1 P.L.W. 215 : 5 L.W. 711 : 32 M.L.J. 425 : 21 C.W.N. 585 : (sic) M.L.T. 344 : 15 A.L.J. 382 : 25 C.L.J. 508 : 19 Bom. L.R. 424 : (1917) M.W.N. 473 : 44 I.A. 72. (P.C.) The onus, therefore, is on the 3 defendant who is the contesting defendant to show that although the document was executed BO long ago as 1904 and bears the date 2 February, it was executed subsequently. In all such cases lapse of time does strengthen the onus cast. Venkatasubbayya is dead. His widow is dead and so far as the evidence goes, we have to rely mainly on the evidence of P.W. No. 2 who was the only attesting witness to the Will who has been examined. D. W. No. 3 has, no doubt, been referred to by Mr. Krishnaswami Iyengar. But he is the agent of the 3 defendant conducting the litigation on her behalf and it is not safe to rely upon his evidence specially when he does not say that he was present at the execution. So far as the evidence of P.W. No. 2 is concerned, he was called by the plaintiff for proving attestation to the mortgage sued on. In his cross-examination, Exs. I and II, (letters) were given to him and from these letters he says he infers that the Will was executed subsequent to. these. letters. Reference is made by Mr. Krishnaswami Aiyangar to Ex, VII as strongly probabilising the non-existence of any Will on the 2nd February. In dealing with this question, there is one fact to be borne in mind, namely, that the testator executed more than one Will and according to one witness he was a man with a passion for making and destroying Wills. He wrote several Wills and changed his mind very often. Admittedly in this case, three Wills were brought into existence and there are two Wills which P.W. No. 2 says he attested. There is another Will, Ex. VIII, which nobody attested, but which seems to have been signed by the testator. So that in estimating the evidence of P.W. No. 2 who was examined on 12 February, 1923 about 20 years after the date of the Will in question, one has to be careful in saying whether his evidence, if accepted, shows beyond doubt that the Will was ante-dated. I do not think that I can on his evidence hold that the Will was ante-dated. Exhibits I and II could not in terms be attributed to this Will, lie admits that even as regards this Will he was not present when it was executed but that it was sent to him later on, space being left for his signature, so that it is not possible to say with certainty when the Will was executed. As regards, Ex. VII, the statement in it is that Venkatasubbayya was unable to execute a Will. So far as Ex. VII is concerned, it seems to me to be fairly clear that the recital therein that his last hours had come and that he was notable to leave a Will because the last hours had arrived is false Exhibit VII is dated 6 February, 1904 He died on 6th April, 1904, two months after the date Ex. VII bears. If he was able to have a document like Ex. VII written, there is no reason why he could not have left a Will in terms of Ex. B. The clauses in Ex. VII are peculiar. He refers to a contemplated charity and contemplated gifts all of which appear in Ex. B. He gives the property absolutely to his wife subject to the charity. It is doubtful whether even that charity, under the terms of Ex VII was to continue after her death, because he permits his wife to will away the properties aS she pleased. As regards the recitals in Ex, VII, there is no evidence to show that he was on the point of death at the time of Ex. VII. It seems to me that Ex. VII was brought into existence for some ulterior purpose. What that purpose is, it is difficult, in the absence of evidence, to determine. But the circumstances which the testator recites do not, in my view, represent the true state of affairs. He was not dying and he was certainly on that date, if the evidence is true, capable of leaving a Will because on the 2nd of February he underwent a ceremony, lasting about six hours of sanyasam. He was living in a hut near the house being fed daily and no witness says that he was on the point of death or was unable to attend to his affairs, 1 am not, therefore, prepared to hold that Ex VII evidences the truth of the defendant's case that no Will was executed before that date I have gone through the evidence carefully I think it is difficult on that evidence to hold-that the document, Ex. B, purporting to be executed on the 2nd February, 1904 can be held to be a document which was executed in March and. ante-dated for any ulterior purpose. It is not clear to me why there should be such ante-dating. If the evidence that he was performing yoga and was a religions man is true, the probability is that, before he took sanyasam he would have left a W all disposing of his properties rather than that he would not have disposed of his properties, while knowing that the obligation of a sanyasi was to divest himself of his property before he took sanyasam and that he would have subsequently executed a Will and ante-dated it. There is no motive for ante-dating as the deceased thought that on the 6 February and the 17th March he could, though a sanyasi, execute a document and register another. He could not have known that the law invalidated documents or acts relating to property by a Hindu sanyasi. There is nothing to show that on the 2 February, he was not in a position to make a Will in terms of Ex. B. I am, therefore, of opinion that on the evidence it cannot be held that Ex. B was ante-dated.

(3.) I think it is unnecessary to consider the question whether Venkatasubbayya was a sanyasi in the strict sense of the term under the Hindu Law having undergone all the ceremonies and consequently civilly dead and unable to dispose of the property. If knowledge of the mantrams and the understanding of the ceremonies are essential, very few ceremonies now performed by Hindus could be upheld. I do not agree with the District Judge that knowledge of any man-tram is necessary, repetition being sufficient in these days. All you have to see is whether a parson performs his ceremony repeating the mantras. Where a ceremony is admittedly performed, the presumption is that it was performed in accordance with the Sastras.