Muniammal v. Annadurai (Deceased)

2. Tersely and briefly, niggard and bereft of details, thecase of the plaintiff as stood exposited from the plaint could beportrayed thus:The plaintiff is the widow/ legal heir of P.R.Raja Gounder whodied issueless on 21.03.1982. The defendants 3 and 4 are the saidRaja Gounder's deceased two sisters' respective husbands. Thedefendants 1 and 2 are their respective sons. The defendants 3 and 4dominated the mind of Raja Gounder during his life time and he waskept under their control for a long period of time. Raja Gounder wasphysically and mentally weak and he has lost his discretionary power.With a view to grab the suit properties belonging to Raja Gounder,the defendants brought about a Will as though executed by the saidRaja Gounder in favour of D1 and D2. The death of Raja Gounder wasnot even informed to the plaintiff. After his death, the defendantsstarted setting up untenable claim over it based on an alleged Willdated 20.04.1964 executed by Raja Gounder, who could not haveexecuted such a Will ignoring his own brothers and their sons andthere was no necessity for Raja Gounder to execute such an allegedWill. Hence the suit.3. Per contra, denying and refuting, challenging and impugning,the allegations/averments in the plaint, the first defendant filedthe written statement, the warp and woof of it, would run thus:The deceased Raja Gounder during his life time was hale andhealthy and was in a sound state of mind; Out of his own free will,he voluntarily executed the registered Will dated 20.04.1964. Theallegations to the contrary in the plaint are all false. Theplaintiff and Raja Gounder were not in good terms; she caused lot oftroubles to Raja Gounder by instituting vexatious litigations. Shefiled suit No.15/1943 claiming maintenance as against Raja Gounderand her entire claim was settled by paying a sum of Rs.500/-as perreceipt No.61854. Even thereafter, she filed one other suit No.11/88for maintenance and she got a decree for maintenance at Rs.75/- permonth. She was in the habit of filing execution petition as againstRaja Gounder. Since the defendants are legally bound to paymaintenance to the plaintiffs after the death of Raja Gounder, theycalled upon her to claim maintenance. But, she replied setting upuntenable claims. Accordingly, he prayed for the dismissal of thesuit.4. D2 filed the written statement, more or less on the samelines as filed by D1 with the additional averments thus:As per the Will dated 20.04.1964 executed by Raja Gounder,the "A" Scheduled property was bequeathed to D1 and "B" scheduled https://hcservices.ecourts.gov.in/hcservices/ property was bequeathed to D2 and they respectively took possessionof those properties. Raja Gounder, during his life time grantedlease of land in Survey Nos.206/2A, 207 and 202/2 in favour of D4 asper registered Muchalika dated 03.03.1982. Hence D4 is in possessionof those lands and cultivating the same. Accordingly, he prayed forthe dismissal of the suit.5. The trial court framed the relevant issues. During trial, onthe side of the plaintiff P.Ws.1 and 2 were examined and Exs.A1 toEx.A6 were marked. On the side of the respondents D.Ws.1 to 8 wereexamined and Exs.B1 to Ex.B7 were marked. Court documents Exs.C1 andC2 were marked. Ultimately, the trial Court dismissed the suit.6. Being aggrieved by and dissatisfied with the judgment anddecree of the trial Court in dismissing the original suit of theplaintiff, the appellant/plaintiff has preferred on the followinggrounds among others:(i) The judgment and decree of the trial Court isagainst law, weight of evidence and all probabilities of thecase. (ii) The trial Court erroneously held that the Willallegedly executed by Raja Gounder was valid.(iii) The Will was not proved before the trial Court,in the way known to law.(iv) The deposition of the witnesses examined on theside of the defendants militated as against each other, butthat fact was not noticed by the trial Court. (v) The trial Court erroneously held that D4 was acultivating tenant. The lease deed itself was in the nameof the second defendant and hence D4 had no locus standi toclaim that he was a lessee of the property.Accordingly, she prayed for setting aside the judgment and decreepassed by the trial Court.7. The points for consideration are as to:-(a) Whether the Will dated 20.04.1964 was executed byRaja Gounder out of his own free Will and volition?(b) Whether the said Will was proved in the way knownto law before the trial Court https://hcservices.ecourts.gov.in/hcservices/ (c) Whether there is any infirmity in the judgment anddecree of the trial Court ?8. There arises a preliminary point which is relating to thefact as to whether this present appeal by the appellant/plaintiffMuniammal could be proceeded with by her by contending that the Will- Ex.B.1 is invalid in the wake of her one other appeal A.S.No.90 of1990, which she filed in the Court of the learned Principal DistrictJudge, Vellore as against the connected suit O.S.No.119 of 1986 filedby Beemaraj R4/D4 herein, having been dismissed by the learnedDistrict Judge concerned.9. The learned Senior Counsel for the defendants would develophis argument by placing reliance on the following decisions: (i) An extract from the decision reported in AIR 1966 SC 1332[Sheodan Singh vs. Daryao Kunwar] would run thus:"20. ... ... ... Where the trial Court has decidedtwo suits having common issues on the merits and thereare two appeals therefrom and one of them is dismissed onsome preliminary ground, like limitation of default inprinting with the result that the trial Court's decisionstands confirmed, the decision of the appeal court willbe res judicata and the appeal Court must be deemed tohave heard and finally decided the matter. In such acase the result of the decision of the appeal court is toconfirm the decision of the trial Court given on merits,and if that is so the decision of the appeal court willbe res judicata whatever may be the reason for thedismissal. ...."(ii) An extract from the decision reported in 2001(1)M.L.J. 212[Renganayaki and another vs. K.R.Renganatha Mudaliar] would run thus:"11. ... ... .... it can safely be concluded thatwhere two connected suits have been tried together andthe findings recorded in one of the suits have becomefinal, in the absence of an appeal, the appeal preferredagainst the findings recorded in the other suit woulddefinitely be barred by the principles of res judicata."(iii) An extract from the decision reported in 2001(4)CTC 297[K.A.Perumalsamy vs. A.Kandasamy and another] would run thus:"11. ... ... ... There is a clear finding againstthe appellant in respect of the other two suits also andwhen once the appellant failed to prefer any appeal https://hcservices.ecourts.gov.in/hcservices/ against the other two judgments, naturally the presentappeal also would be barred on the principles of resjudicata. In support of his contention, reliance isplaced upon the decision reported in Premier Tyres Ltd.,v. Kerala State Road Transport Corporation, 1993 Supp (2)SCC 146, wherein it was observed that where two connectedsuits tried together and finding recorded in one suitbecame final in absence of appeal, appeal preferredagainst the finding recorded in the other suit would bebarred by res judicata. The same view has beenreiterated in Lonankutty v. Thomman and another, AIR 1976SC 1645, Sheodan Singh v. Daryao Kunwar AIR 1996 SC 1332and Vediammal and others v. M.Kandasamy and others 1997TI NJ 96. In view of the decisions, it is patently clearthat the principle of res judicata is also applicable tothe case on hand. The courts below have rightlyappreciated the contentions raised by the appellant andthere is no illegality or infirmity calling for anyinterference."10. A perusal of those judgments and more specifically, theexcerpts extracted supra would unambiguously highlight the point thatout of two appeals filed, if one appeal for any reason was dismissedeither on technical grounds or on merits, the same would constitutean embargo as Res judicata for the appellant in one other appealinvolving the same issues to proceed further de hors the judgment inthe earlier appeal. There is no quarrel over such a proposition. Ithas become a settled law. However, it has to be seen as to whetherthe previous judgment in A.S.No.98 of 1990 passed by the PrincipalDistrict Judge, Vellore on 08.11.2007 would be an embargo forMuniammal herein to proceed with her appeal questioning the validityof the Will - Ex.B.1.11. The perusal of the common judgment passed by the learned SubJudge of Tiruppathur in O.S.No.3 of 1983 (relating to A.S.No.1421 of1990) and O.S.No.119 of 1986 (relating to A.S.No.98 of 1990concerning which the judgment was passed by the Principal DistrictJudge, Vellore on 08.11.2002) paved the way for filing of the twoappeals as set out supra.12. The learned Senior Counsel for the plaintiff Muniammal woulddraw the attention of this Court to the judgment of the learnedPrincipal District Judge in the appeal in A.S.No.98 of 1990 anddevelop his argument that the said judgment was passed subject to thedecision that would be rendered by this Court in the present appealand that Muniammal would not face any embargo in prosecuting herappeal touching upon all the issues. https://hcservices.ecourts.gov.in/hcservices/

13. It is therefore just and necessary to look into the saidjudgment passed by the learned Principal District Judge in the appealA.S.No.98 of 1990. Beemaraj, the plaintiff in O.S.No.119 of 1986filed the suit for the purpose of getting injunction so as tosafeguard his right as a tenant in the suit property and the trialCourt granted injunction in his favour, as per the said commonjudgment referred to above, as against which only Muniammal filed theappeal A.S.No.98 of 1990 before the learned Principal District Judge,in view of the fact that relating to that appeal only the learnedPrincipal District Judge had the first appellate jurisdiction. TheDistrict Court clearly and categorically spelt out that it confirmedthe judgment and decree of the lower Court relating to the injunctionsuit in O.S.No.119 of 1986 in favour of Beemaraj, purely on theground of Beemaraj's possession as a tenant in the suit property andthe learned Principal District Judge made it clear that he had notdecided anything finally and that he did not decide any issuerelating to Will - Ex.B.1 herein. 14. Paragraph Nos.13 and 14 of the learned Principal DistrictJudge's judgment in A.S.No.98 of 1990 is extracted hereunder forready reference."13. Now the point for consideration is whether theplaintiff in O.S.119/86 has been in possession of theproperty. To prove his possession, he relied on Ex.B3and Ex.B6. Ex.B3 is the registered lease deed executedin favour of the first defendant. Ex.B3 has beenregistered on 3.3.82. Ex.B4 is the adangal. Ex.B4 hasbeen produced to show that he has been in possession ofthe property. Ex.B5 is the order passed by theTashildar. It has been produced to show that his namehas been mentioned in the tenancy record. Therefore,from this it is very clear that the plaintiff has been inpossession of the property from 1982. This aspect hasbeen considered by the trial Court. Since comprehensivesuit has been filed and pending before Honourable HighCourt, this court cannot consider other aspects advancedby the learned counsel appearing for the appellant.Therefore, in my view, the plaintiff has proved hispossession of the property on the date of suit. It isalso brought to the knowledge of this court, that thefirst appeal is pending before the Honourable High Courtfor appropriate relief. Both the suits have been jointlytried and disposed of by the trial court. Therefore, inmy view until the finality is reached in O.S.3/83 theplaintiff is entitled to be in possession of theproperty. Therefore, there is no need to interfere intothe decision taken by the learned Sub Judge, Tirupattur. https://hcservices.ecourts.gov.in/hcservices/

14. In the result, this appeal is dismissed withcosts holding that subject to the result of finality inO.S.3/83 the judgment and decree of the lower court isconfirmed." (emphasis supplied)15. It is therefore crystal clear that there is considerableforce in the contention of the learned Senior Counsel for theplaintiff Muniammal that the said District Judge's judgment cannot betaken as an embargo or res judicata as against Muniammal inprosecuting the present appeal, challenging the genuineness of Ex.B.1- Will. The learned Senior Counsel for the defendants would contendthat whatever may be the adjudication by the learned District Judge,the appeal which emerged out of a part of the common judgment of thetrial Court became final and it was against Muniammal and in such acase, Muniammal cannot prosecute this appeal. 16. The perusal of the common judgment would clearly indicatethat in the common judgment it has been made clear that absolutely nocommon issues were framed by the trial Court in respect of both thesuits. As many as 5 issues were framed in the main suit O.S.No.3 of1983 filed by Muniammal for declaration of title and for recovery ofpossession together with incidental reliefs, whereas in theinjunction suit O.S.No.119 of 1986 filed by Beemaraj, only two issueswere framed, one relating to the fact as to whether the plaintiffBeemaraj was entitled to injunction and another one issue "To whatrelief? ". Only those two issues were decided in the injunction suitand not any issue relating to the Will. Hence it is quite obviousand beyond doubt that the judgment rendered by the learned DistrictJudge in the said A.S.98 of 1990 would not operate as res judicataor in any way an embargo for Muniammal to prosecute her presentappeal. Accordingly, this preliminary point is decided.POINTS NO.1 & 2:These points are taken together for discussion as they areinterlinked and interwoven with each other.17. The learned Senior Counsel for the plaintiff would contendthat there are contradictions umpteen in number among the depositionsof D.W.2 - the Scribe of Ex.B.1 Will, D.Ws.3, 4 and 5 - theattestors to Ex.B.1 Will; those contradictions are not insignificantor minor contradictions, but material contradictions cutting at theroot of the very factum of the alleged execution of the Will by thedeceased Raja Gounder, whereas the learned Senior Counsel for thedefendants would advance his argument by highlighting the point thatmore than 22 to 23 years elapsed, ever since the date of execution ofthe Will till the witnesses deposed before the Court in support ofthe Will and that due allowances should be given in that regard. https://hcservices.ecourts.gov.in/hcservices/

18. At this juncture, it is just and necessary to analyse thedepositions of the witnesses concerned. In the written submissionfurnished on the side of the Muniammal it is set out that D.W.2, theScribe stated as under:"ehd; Kjypy; Ex.B.-1 vGjpndd;/ mijg; goj;J fhl;o mry; vGjpndd;/capYf;F thrf';fs; uh$hft[z;lh; brhd;dhh;/ mth; ,g;go ,g;go vGjDk; vd;whh;/ ehd;nghd nghJ I/o/ nfhtpe;j uh$;. bghd;Drhkp ,Ue;jhh;fs;/ Ch; Ml;fs; ntQqk; vd;W uh$hf;ft[z;lh; brhy;yp Ms; mDg;gpdhh;/ ghp!hh; ehuhaz Mr;rhhp. rPdpthr uht;. nklh fpUc;&zbrl;o ,d;Dk; Ex.B.-1 y; rhl;rp nghl;lth;fs; te;jhh;fs;/ fhj;jhny 10 kzpf;Fdraft vGjpndd;. rhae;jpuk; 4 kzpf;F Ex.B.-1 vGjpndd;/ mij registerbra;aDk; vd;wjw;F uh$hf;ft[z;lh; clk;g[ Rfkhf ,y;iy. 10. 15 ehs; fHpj;J nghfyhk;vd;whh;/ Ex.B.-1 vGjpaJk; mjpy; 5 gf;f';fspy; uh$hf; ft[z;lh; ifbaGj;Jg;nghl;lhh;. mg;nghJ ehd; ghh;j;njd;/ mg;nghJ 2. 3 rhl;rpfs; ,Ue;jhh;fs;. I/onfhtpe;juh$;. Mh;/v/nfhtpe;juh$;. bghd;Drhkp ft[z;lh; mg;nghJ ifbaGj;J nghl;lhh;f;s;.mth;fs; ifbaGj;J nghLtij uh$hf; ft[z;lh; ghh;j;jhh;. mg;g[wk; rPdpthr uht;. ehuhazMrhhp. nklh fpUc&;zbrl;o ifbaGj;J nghl;lhh;fs;/ gpf;fyk; ehd; nghl;nld;. capy; fz;lrkhrhuk; uh$hf; ft[z;lUf;F bjhpahJ vd;why; rhpapy;iy/"19. Similarly in the same written submission on Muniammal side,the defects in D.Ws. depositions were highlighted as under:D.W.3: "ehd; uh$h tPl;Lf;F nghdnghJ vd;ida[k;. uh$h ft[z;lh; jtpu ntWahUk; ,y;iy. capypy; ifbaGj;J nghl;L tpl;L te;Jtpl;nld;/ kw;wth;fs; capypy;ifbaGj;J nghl;lij ehd; ghh;f;ftpy;iy/"D.W.4: "capy; vGjpa nghJ Kjypy; ,Ue;J filrp tiu ,Ue;njd;/ D.W.3 –A.nfhtpe;juh$;. ehd;. rPdpthruht;. ehuhaz Mr;rhhp. nklh fpUc;&z brl;oahh; vy;nyhUk; ,Ue;njhk;/ vy;yhUk; rhl;rp nghl;lJ xnu rkaj;jpy;jhd;/......... ......... ....... kPjp rhl;rpfs; ifbaGj;J nghLk;nghJ ehd;gf;fj;jpy; ,Ue;J ghh;j;njd;/"D.W.5: "Ex.B.1 - y; ehd; rhl;rp nghl;lnghJ vd;idj; jtpu ntW ahUk;Ex.B.1-y; ifbaGj;Jnghltpy;iy/ uh$h uht[k;. ft[z;lUk; ifbaGj;J nghlr;brhd;dhh;fs;/uh$h ft[z;lh; Ex.B.1-y; ifbaGj;J nghl;lij ehd; ghh;f;ftpy;iy/"20. The above extracts from the written submission of theplaintiff would no doubt highlight the contradictions among thewitnesses relating to the presence of all the witnesses at the timeof testator executing the Will. In fact, the learned Senior Counselfor the plaintiff would draw the attention of this Court to the factthat one A.Govindaraj was not examined before the trial Court as hedied; he was purported to have attested the Will only on 04.11.1964,whereas the Will was alleged to have been written on 20.10.1964; andthe witnesses as highlighted supra in the written submission, didgive prevaricative and contradictory answers relating to the presenceof the witnesses at the time of the testator allegedly signingthe Will. No doubt, the said attesting witness A.Govindaraj was not https://hcservices.ecourts.gov.in/hcservices/ examined before the trial Court as he died, but he attested the Willby putting his signature in it and also mentioning the date as04.11.1964. However, D.W.1 (D1) would depose that on 20.10.1964 theWill was scribed and it was signed by Raja Gounder after reading theWill and all the witnesses signed on the same day after seeing thetestator signing the Will. D.W.2, the Scribe also would state thatall the witnesses signed after seeing the testator having signed theWill on the same day, whereas D.W.3 I.D.Govindaraj one of theattested witnesses would depose otherwise that he did not see thetestator signing the Will, but the testator told him to sign bystating that he had executed the Will, whereupon, Raja Rao the ScribeD.W.2 asked him to sign the Will. 21. The learned Senior Counsel for the plaintiff would contendthat during Chief Examination, D.W.3 stated one version neverthelessduring Cross examination he stated another version. No doubt, in theChief Examination D.W.3 would state as under:"mJ 24 tUc&k; Kd;g[/ ehd; uh$h ft[z;lh; tPl;lz;il nghndd;/ uh$h ft[z;lh;tPl;lz;il nghdnghJ rhae;jpuk; 4 kzp ,Uf;Fk;/ fh;zk; uh$h uht; ,Ue;jhh;/ uh$h ft[z;lUk; ,Ue;jhh;/ uh$h ft[z;lh; capy; vGjp itj;Js;nsd; ifbaGj;J nghL vd;whh;/ehd; capypy; ifbaGj;J nghl;nld;."In cross examination he deposed as under:"ehd; uh$h tPl;Lf;F nghdnghJ vd;ida[k;. uh$h ft[z;lh; jtpu ntW ahUk; ,y;iy.capypy; ifbaGj;J nghl;L tpl;L te;Jtpl;nld;/ kw;wth;fs; capypy; ifbaGj;J nghl;lijehd; ghh;f;ftpy;iy/ uh$h ft[z;lh; vd; vjphpy; capypy; ifbaGj;J nghltpy;iy/ ehd; ngha;ifbaGj;J nghl;Ltpl;L clnd te;Jtpl;nld;/ capypy; fhfpjj;jpy; ifbaGj;J nghlr;brhd;dth; uh$h uht;/ Ex.B.1-I ehd; goj;J ghh;f;ftpy;iy."22. Undoubtedly, the deposition of D.W.3 is not in consonancewith the deposition of D.Ws.1 and 2 relating to the presence of allthe witnesses at one and the same time when the testator signed theWill. But the core question is as to whether that contradictionshould be held as a significant one so as to doubt the verygenuineness of the execution of the Will by the Raja Gounder himself.In my considered opinion, the contradictions as highlighted on theside of the plaintiff are not relating to the very execution of theWill by Raja Gounder himself, but it is relating to the allied facts.No doubt, I am fully aware of the fact that a litigant who isdesirous of attacking a Will would try to place reliance on thesecontradictions relating to allied facts as otherwise, according tohim he would not be able to attack the Will at all. 23. At this juncture, my mind is redolent with the famousmaxim -Omnia Presumuntur rite esse acta (A prima faciepresumption of this regularity of the acts of publicofficials exists until the contrary appears). https://hcservices.ecourts.gov.in/hcservices/ I would further like to spotlight the fact that if the time gapbetween the execution of the Will and the date of deposition by thewitnesses concerned are reasonably short, then certainly suchcontradictions should be taken as material. But on the other hand,when indubitably there was a time gap of 22 to 23 years between thedate of execution of the Will and the deposition of the witnessesbefore the Court, certainly contradictions relating to allied factscannot be termed as significant, capable of cutting at the root ofthe Will itself, if does so, it would amount to throwing the babyalong with the bath water. 24. Here, D.W.4 Ponnusamy one other attesting witness wouldcategorically state that he saw Raja Gounder signing the Will Ex.B.1,whereupon the witness himself signed it. D.W.5 Meda Krishna Chettyone other attesting witness to Ex.B.1 would depose that he saw thetestator signing the Will, whereupon he attested the Will, but hepleaded loss of memory relating to the presence of other witnesses.D.Ws.4 and 5 clearly and categorically stated that they saw thetestator signing the Will and thereafter, they attested the Will onthe same day and that itself would satisfy the requirement of law asembodied in Section 63(c) of the Indian Succession Act read withSection 68 of the Indian Evidence Act. Over and above that, D.W.3also would clearly and categorically delineate that even though hedid not see the testator signing it, the testator had acknowledgedthe fact that he only executed the Will, whereupon, D.W.3 signed it.Hence, his deposition also satisfies the requirement of Section 63(c)of the Indian Succession Act. At this context, it is just andnecessary to extract Section 63(c) of the Indian Succession Act."63(c) The will shall be attested by two or morewitnesses, each of whom has seen the testator sign oraffix his mark to the will or has seen some other personsign the will, in the presence and by the direction ofthe testator, or has received from the testator apersonal acknowledgement of his signature or mark, or ofthe signature of such other person; and each of thewitnesses shall sign the will in the presence of thetestator, but it shall not be necessary that more thanone witness be present at the same time, and noparticular form of attestation shall be necessary."25. It is not a case here where only one attesting witness wasexamined, but as many as three attesting witnesses, namely D.Ws.3,4,and 5 were examined and each of those witnesses clearly andcategorically deposed before the Court that it was the testator whowas the author of the Will and once the said fact has been clearlyspoken to by the witnesses, then over and above that no more proof is https://hcservices.ecourts.gov.in/hcservices/ required. It is a common or garden principle that one attestingwitness of the Will need not attest it in the presence of anotherwitness. If at all in a case only one attesting witness is examinedbefore the Court, then various considerations would arise. But here,I need not dilate on that law point as it is not germane foradjudication in this case. As such, the entire issue relating to theexecution of the Will has got boiled down to one important andcrucial point as to whether those contradictions among the witnesseswho spoke about the Will, as highlighted on the plaintiff's sideshould be taken as material contradictions which are capable ofcutting at the root of the plea of the defendants about the executionof the Will by the testator Raja Gounder. 26. I am of the considered opinion that in view of the catenaof decisions emerged in this regard, which would be discussed infra,such contradictions are not capable of carrying conviction with theCourt to hold the Will as one not proved. It is also a fact to benoted that Ex.B.1 is a registered Will and it has now become a triteproposition that registration of a Will is an additional factor toestablish the genuineness of the Will. At this context, I would liketo refer to the various decisions cited on both sides. 27. The learned Senior Counsel for the defendants would cite thedecision of the Hon'ble Apex Court reported in 2006(2)LW 658 SC[Pentakota Satyanarayana & others vs. Pentakota Seetharatnam &others]. An excerpt from it would run thus:"25. A perusal of Ex.B9 (in original) would showthat the signatures of the Registering Officer and ofthe identifying witnesses affixed to the registrationendorsement were, in our opinion, sufficient attestationwithin the meaning of the Act. The endorsement by thesub-registrar that the executant has acknowledged beforehim execution did also amount to attestation. In theoriginal document the executants signature was taken bythe sub-registrar. The signature and thumb impressionof the identifying witnesses were also taken in thedocument. After all this, the sub-registrar signed thedeed. Unlike other documents the Will speaks from thedeath of the testator and so, when it is propounded orproduced before a court, the testator who has alreadydeparted the world cannot say whether it is his Will ornot and this aspect naturally introduces an element ofsolemnity in the decision of the question as to whetherthe document propounded is proved to be the last Willand the testament of departed testator. https://hcservices.ecourts.gov.in/hcservices/

26. In the instant case, the propounders werecalled upon to show by satisfactory evidence that theWill was signed by the testator, that the testator atthe relevant time was in a sound and disposing state ofmind, that he understood the nature and effect of thedispositions and put his signature to the document onhis own freewill. In other words, the onus of thepropounder can be taken to be discharged on proof of theessential facts indicated above. It was argued bylearned counsel for the respondent that popoundersthemselves took a prominent part in the execution of theWill which will confer on them substantial benefits. Inthe instant case, propounders who were required toremove the said suspicion have let in clear andsatisfactory evidence. In the instant case, there wasunequivocal admission of the Will in the writtenstatement filed by P.Srirammurthy. In his writtenstatement, he has specifically averred that he hadexecuted the Will and also described the appellants ashis sons and Alla Kantamma as his wife as the admissionwas found in the pleadings. The case of the appellantscannot be thrown out. As already noticed, the firstdefendant has specifically pleaded that he had executeda Will in the year 1980 and such admissions cannot beeasily brushed aside. However, the testator could notbe examined as he was not alive at the time of trial.All the witnesses deposed that they had signed asidentifying witnesses and that the testator was in sounddisposition of mind. Thus, in our opinion, theappellants have discharged their burden and establishedthat the Will in question was executed by Srirammurthyand Ex.B9 was his last will. It is true thatregistration of the Will does not dispense with the needof proving, execution and attestation of a documentwhich is required by law to be proved in the manner asprovided in Section 68 of the Evidence Act. TheRegistrar has made the following particulars on Ex.B9which was admitted to registration, namely, the date,hour and place of presentation of document forregistration, the signature of the person admitting theexecution of the Will and the signature of theidentifying witnesses. The document also contains thesignatures of the attesting witnesses and the scribe.Such particulars are required to be endorsed by theRegistrar along with his signature and date ofdocument. A presumption by a reference to Section114 of the Evidence Act shall arise to the effect that https://hcservices.ecourts.gov.in/hcservices/ particulars contained in the endorsement of registrationwere regularly and duly performed and are correctlyrecorded. In our opinion, the burden of proof to provethe Will has been duly and satisfactorily discharged bythe appellants. The onus is discharged by the propounderadducing prima facie evidence proving the competence ofthe testator and execution of the Will in the mannercontemplated by law. In such circumstances, the onusshift to the contestant opposing the Will to bringmaterial on record meeting such prima facie case inwhich event the onus shift back on the propounder tosatisfy the court affirmatively that the testator didknow well the contents of the Will and in sounddisposing capacity executed the same.27. It is settled by a catena of decisions that anyand every circumstance is not a suspicious circumstance.Even in a case where active participation and executionof the Will by the propounders/beneficiaries was there,it has been held that that by itself is not sufficientto create any doubt either about the testamentarycapacity or the genuineness of the Will. It has beenheld that the mere presence of the beneficiary at thetime of execution would not prove that the beneficiaryhad taken prominent part in the execution of the Will.This is the view taken by this Court in Sridevi & Orsvs. Jayaraja Shetty & Others, (2005) 2 SCC 784 = 2005-2-L.W.89. In the said case, it has been held that theonus to prove the will is on the propounder and in theabsence of suspicious circumstances surrounding theexecution of the will proof of testamentary capacity andthe proof of signature of the testator as required bylaw not be sufficient to discharge the onus. In case,the person attesting the Will alleges undue influence,fraud or coercion, the onus will be on him to prove thesame and that as to what suspicious circumstances whichhave to be judged in the facts and circumstances of eachparticular case.28. Mr.Narsimha, learned counsel for therespondents submitted that the natural heirs wereexcluded and legally wedded wife was given a lessershare and, therefore, it has to be held to be asuspicious circumstance. We are unable to countenancethe said submission. The circumstances of depriving thenatural heirs should not raise any suspicion becausethe whole idea behind the execution of the Will is to be https://hcservices.ecourts.gov.in/hcservices/ interfered in the normal line of succession and sonatural heirs would be debarred in every case of theWill. It may be that in some cases they are fullydebarred and some cases partly. This is the view takenby this Court in Uma Devi Nambiar and Others vs.T.C.Sidhan (Dead) (2004) 2 SCC 321 = 2004-2-L.W.852. (emphasis supplied)28. The aforesaid cited decision is very much applicable in thefacts and circumstances of this case and a mere perusal of it wouldindicate the same, as Ex.B.1 is a registered Will and in fact,execution of the Will was on 20.10.1964 and the Will was presentedfor registration on 05.11.1964. As such, the time gap between theexecution and the registration of the Will further strengthens thegenuineness of the Will, as it would indicate that there was nohustling through in the process of executing the Will as well as ingetting the Will registered. Normally if there is any fraud orcoercion involved in the execution of the Will, naturally there wouldbe element of urgency and hustling through and it would be writlarge. But in this case, such elements are totally missing whichexemplifies that in the normal course the testator executed the Willand got it registered. Simply because one of the attesting witnessesattested it on 04.11.1964, that would not detract the genuineness ofthe Will. No doubt, before the trial Court adequate explanation wasnot given about such belated attestation by A.Govinda Raj. Even dehors the attestation of A.Govinda Raj, the Will stands proved in viewof the evidence as set out supra to the effect that the otherattesting three witnesses clearly and categorically spoke about thedue execution of the Will by the testator and the attestation of theWill by the witnesses.29. In the very same Hon'ble Supreme Court's judgment inPentakota Satyanarayana & others vs. Pentakota Seetharatnam & othersreported in 2006(2)LW 658 SC at paragraph No.31, the Hon'ble ApexCourt exemplified a very pragmatic approach to the analysis of theWill by the Courts in India. The said paragraph 31 is extractedhereunder:"31. D.W.6 stated that D1 brought the draft Will andasked him to scribe the same. This is nowherecontradicted by D.W.5. D.W.5 does not say that D1(testator) did not bring a draft Will. It is quitenatural for the testator to have a first draft Will inthe pocket when he goes to a document writer. D.W.5 wasasked to attest. D.W.6 also speaks about the executionand attestation. The trial Court has made much aboutthe draft Will aspect. This is hardly a suspicious https://hcservices.ecourts.gov.in/hcservices/ circumstance. D.W.6 says that 4 male persons accompaniedD1. This is hardly a suspicious circumstance. D.W.5also states that there was another person whom he wouldnot identify. The deposition was given in 1997 (i.e. 17years after the registration of Will) and the courtsbelow ought not to have made a mountain out of a molehilland on that basis reject a duly executed registeredWill."30. Here virtually the plaintiff tried to make a mountain out ofa molehill by trying to point out the contradictions relating toallied matters in respect of the execution of the Will. In the saidcase dealt with by the Hon'ble Supreme Court, there was 17 years gapbetween the date of execution of the Will and the deposition beforethe Court. But here, it is obvious that the time gap is more than 22or 23 years. Hence the ratiocination as set out in paragraph No.31 ofthe Hon'ble Apex Court's judgment can readily be relied on forrejecting the contention on the plaintiff side, based on thosecontradictions in the evidence of the witnesses.31. The learned Senior Counsel for the defendants also citedvarious other decisions as set out infra relating to the quantum ofproof required relating to proving of the Will. (i) 2005(1) SCC 40 [Daulat Ram and other vs. Sodha and others](ii)2005(1) SCC 280 [Meenakshiammal (Dead) through LRs. and others vs. Chandrasekaran and another] (iii) 2005(1) CTC 443 [Sridevi and others vs.Jayaraja Shetty and others](iv) 2005(1) L.W.455 [Janaki Devi vs. R.Vasanthi and 6 others](v)1989 (1) L.W.396 [Nagarajan and 3 others vs. Annammal](vi)AIR 1982 SC 133 [Smt.Indu Bala Bose and others vs. Manindra Chandra Bose and another](vii) AIR 1985 SC 500 [Satya Pal Gopal Das vs. Smt. Panchubala Dasi and others](viii)AIR 1991 Bom. 148 [Asber Reuben Samson and others v. Eillah Solomon and others] https://hcservices.ecourts.gov.in/hcservices/ (ix)2008(2) MLJ 119 [M.Anandan and others vs. A.Dakshinamoorthy](x) 2006(4) L.W.942 [Gurdev Kaur & others vs. Kaki & others](xi)2008(1) MLJ 1337 SC [Savithri and others vs. Karthyayani Amma and others](xii) 2007(3) L.W.916 [1. J.Mathew (died) 2. J.Damien and 3 others vs. Leela Joseph]32. Among the aforesaid decisions, the learned Senior Counselfor the defendants cited one of the decisions of this Court reportedin 2001(3)CTC 283 [Corra Vedachalam Chetty and another vs.G.Jankiraman]. The said decision is on the point that the Courtwhile analysing the Will is acting as a Court of conscience. Anexcerpt from the above said decision would run thus:"26. This need for caution, cannot be exploited byunscrupulous caveators who choose to cull out imaginarysuspisions with a view to prevent the legatees under theWill from claiming the benefit thereunder and to renderthe last Will of the deceased wholly ineffective. In thiscontext, the conduct of the persons who raise the allegedground for suspision is also to be looked at, to know asto how credible are the grounds for suspisions sought tobe raised by such persons. In this case, the suspicion issought to be raised by a person who is keenly interestedin making the Will ineffective and whose conduct is farfrom one which would inspire confidence in truthfulness ofhis statements."33. As such, the cited precedent would also highlight that theCourt should not attach undue importance to imaginary suspicions.All these aforesaid decisions are on the point that the Court shouldnot at the time of analysing the validity of the Will proceed on thehypothesis that the Will is an invalid one.34. The learned Senior Counsel for the plaintiff would cite thevarious decisions which are to be considered hereunder:(i) 2003(1)CTC 308 [ Janki Narayan Bhoir vs. Narayan NamdeoKadam]. An excerpt from it would run thus:"8. To say will has been duly executedthe requirements mentioned in clauses (a), (b) and (c) of https://hcservices.ecourts.gov.in/hcservices/ Section 63 of the Succession Act are to be complied withi.e., (a) the testator has to sign or affix his mark to thewill, or it has got to be signed by some other person inhis presence and by his direction; (b) that the signatureor mark of the testator, or the signature of the personsigning at his direction, has to appear at a place fromwhich it could appear that by that mark or signature thedocument is intended to have effect as a will; (c) the mostimportant point with which we are presently concerned inthis appeal, is that the will has to be attested by two ormore witnesses and each of these witnesses must have seenthe testator sign or affix his mark to the Will, or musthave seen some other person sign the Will in the presenceand by the direction of the testator, or must have receivedfrom the testator a personal acknowledgement of signatureor mark, or of the signature of such other person, and eachof the witness has to sign the Will in the presence of thetestator.9. It is thus clear that one of the requirements ofdue execution of Will is its attestation by two or morewitnesses which is mandatory.10. Section 68 of the Evidence Act speaks as to how adocument required by law to be attested can be proved.According to the said Section, a document required by lawto be attested shall not be used as evidence until oneattesting witness at least has been called for the purposeof proving its execution, if there be an attesting witnessalive, and subject to the process of the Court and capableof giving an evidence. It flows from this Section that ifthere be an attesting witness alive capable of givingevidence and subject to the process of the Court, has to benecessarily examined before the document required by law tobe attested can be used in an evidence. On a combinedreading of Section 63 of the Succession Act with Section 68of the Evidence Act, it appears that a person propoundingthe Will has got to prove that the will was duly andvalidly executed. That cannot be done by simply provingthat the signature on the Will was that of the testator butmust also prove that attestations were also made properlyas required by clause (c) of Section 63 of the SuccessionAct. It is true that Section 68 of the Evidence Act doesnot say that both or all the attesting witnesses must beexamined. But at least one attesting witness has to becalled for proving due execution of the Will as envisagedin Section 63. Although Section 63 of the Succession Act https://hcservices.ecourts.gov.in/hcservices/ requires that a Will has to be attested at least by twowitnesses, Section 68 of the Evidence Act provides that adocument, which is required by law to be attested, shallnot be used as evidence until one attesting witness atleast has been examined for the purpose of the proving itsdue execution if such witness is alive and capable ofgiving evidence and subject to the process of the Court.In a way, Section 68 gives a concession to those who wantto prove and establish a will in a Court of law byexamining at least one attesting witness even though willhas to be attested at least by two witnesses mandatorilyunder Section 63 of the Succession Act. But what issignificant and to be noted is that that one attestingwitness examined should be in a position to prove theexecution of a will. To put in other words, if oneattesting witness can prove execution of the will in termsof the clause (c) of Section 63, viz., attestation by twoattesting witnesses in the manner contemplated therein, theexamination of other attesting witness can be dispensedwith. The one attesting witness examined, in this evidencehas to satisfy the attestation of a will by him and theother attesting witness in order to prove there was dueexecution of the Will. If the attesting witness examinedbesides his attestation does not, in his evidence, satisfythe requirements of attestation of the Will by otherwitness also it falls short of attestation of will at leastby two witnesses for the simple reason that the executionof the will does not merely mean the signing of it by thetestator but it means fulfilling and proof of all theformalities required under Section 63 of the SuccessionAct. Where one attesting witness examined to prove thewill under Section 68 of the Evidence Act fails to provethe due execution of the Will then the other availableattesting witness has to be called to supplement hisevidence to make it complete in all respects. Where oneattesting witness is examined and he fails to prove theattestation of the Will by other witness there will bedeficiency in meeting the mandatory requirements of Section68 of the Evidence Act."35. The above cited decision of the Hon'ble Apex Court positsthe conditions required to prove the Will and over and above that, italso highlights as to what are the features to be expected from anattesting witness if he happens to be the only attesting witness tobe examined before the Court. This aspect I have already dealt withsupra. But in this case, it is not one attesting witness, but asmany as three attesting witnesses have been examined along with theScribe and a fortiori the execution of the Will was duly proved. https://hcservices.ecourts.gov.in/hcservices/

36. An excerpt from one other decision reported in 1995 (II) CTC476 [Kashibai and another vs. Parwatibai and others] cited by thelearned Senior Counsel for the plaintiff would run thus:"10. This brings us to the question of the willalleged to have been executed by deceased Lachiram infavour of his grand-son Purshottam, the defendant No.3.Section 68 of Evidence Act related to the proof ofexecution of document required by law to be attested.Admittedly, a Deed of Will is one of such documents whichnecessarily required by law to be attested. Section 68of the Evidence Act contemplates that if a document isrequired by law to be attested, it shall not be used asevidence until the attesting witness at least has beencalled for the purpose of proving its execution, if therebe an attesting witness alive, and subject to the processof the Court and capable of giving evidence. A readingof Section 68 will show that "attestation" and"execution" are two different acts one following theother. There can be valid execution of a document whichunder the law is required to be attested without theproof of its due attestation and if due attestation isalso not proved, the fact of execution is of no avail.Section 63 of the Indian Succession Act, 1925 also laysdown certain rules with (C) of Section 63 provides thatthe Will shall be attested by two or more witnesses eachone of whom has seen the testator sign or affix his markto the Will or has seen some other person sign the Will,in the presence and and by the direction of the testator,or has received from the testator a personalacknowledgement of his signature of mark of the suchother person; and each of the witnesses should sign theWill in the presence of the testator, but it shall not benecessary that more than one witness be present at thesame time and no particular form of attestation shall benecessary.As such in this decision also, the evidence required to prove theWill is found highlighted.37. The learned Senior Counsel for the plaintiff cited thedecision of this Court reported in 1997(1) CTC 222 [Kannammal vs.Chinnaponnammal] which is also in reiteration of the salient featurerequired relating to attestation of a Will. Here, taking intoconsideration the well settled propositions of law as foundhighlighted in the precedents cited supra, I analysed the evidencerelating to Ex.B.1 and it is clear that Ex.B.1 is a genuine Will. https://hcservices.ecourts.gov.in/hcservices/

38. Indubitably and unassailably, the fact remains that theplaintiff Muniammal and the testator Raja Gounder during their lifetime could not see eye to eye and they were at lagger ends and infact, they got themselves locked up in litigations which wereinitiated by Muniammal, claiming maintenance not on one occasion buton two occasions. Incontrovertibly and indisputably, the facts areto the effect that Muniammal filed O.S.No.15 of 1943 for maintenanceand thereafter, she also filed one other suit O.S.No.11 of 1968claiming maintenance. The couple had no issues. It is thereforeclear that for decades together ill will prevailed between thecouple. The evidence adduced on the defendants side would clearlyindicate that Raja Gounder was looked after by the defendants andtheir families and in such case, it is but natural on the part of theRaja Gounder to execute Ex.B.1 in favour of his sister's sons viz.,Anna Durai (D1), Sugavanam (D2). D3 and D4 are the respectivefathers of D1 and D2.39. The learned Senior Counsel for the plaintiff would arguethat as per the Will the testator excluded his brothers and brothers'descendants and that it is a suspicious circumstance. In myconsidered opinion, that cannot be taken as a ground to doubt theWill because there is nothing to prove that Raja Gounder's brother'sfamily looked after Raja Gounder who was apparently suffering from adreaded skin disease.40. The preponderance of probabilities would govern theadjudication in civil cases. Here the fact that Muniammal was not ingood terms with her husband Raja Gounder has been established and itis an admitted fact and in such a case, it is no wonder that RajaGounder disinherited Muniammal by executing Ex.B.1 Will.41. D.W.6 one other independent witness who is a propertied andelderly man also was examined on the side of the plaintiff, and hespoke about the fact that Muniamnal and Raja Gounder were not livingtogether and he also narrated about the factum of the Will executedby Raja Gounder and it is an additional evidence in this Court overand above what was adduced on the defendants' side to prove the Will.42. Accordingly, the point Nos.1 and 2 are decided to the effectthat Ex.B1 Will is a genuine one executed by Raja Gounder and it hasbeen proved as per law. https://hcservices.ecourts.gov.in/hcservices/ POINT NO.3:43. In view of the discussion supra, I could see no infirmity inthe judgment and decree of the trial Court, Accordingly, the same isconfirmed and the appeal is dismissed. No costs.Sd/-Deputy Registrar/true copy/Sub Asst. RegistrargmsToThe Subordinate Judge, Tirupathur+2 Ccs to Mrs.Chitra Sampath, Advocate, SR.No.39615+1 cc to Mr.C.Rajan, Advocate, SR.No.40005+1 cc to Mr.N.Manoharan, Advocate, SR.No.39572Judgment in A.S.No.1421 of 1990 SS (CO)SMK/08.08.08