Seenappa v. R.Krishnapa & Ors.

was only the second defendant, who is managing the affairs of thefamily and the first defendant was under the control of the seconddefendant. According to the plaintiffs, Goopalli Muniamma did notexecute the said dated 20.1.1981 while she was in a sound anddisposing state of mind. The sale deed dated 20.1.1981 was alsonot duly attested as per law. It is a fraudulent document createdto defraud the plaintiffs and the third defendant's legitimate sharein the suit properties. The plaintiffs specifically denied theexecution and the attestation of the said deed dated 20.1.1981.According to the plaintiffs, the document will not bind theplaintiffs and their shares in the suit properties. The 1st defendantdied on 5.1.1995 leaving behind the plaintiffs and the defendants 2and 3 as his legal heirs. After his death, his 1/4th share in thesuit property, devolved upon the plaintiffs and the defendants 2and 3. Hence, after the death of the 1st defendant, the plaintiffsshare in the suit properties had enlarged to 1/3rd share in all thesuit properties. The plaintiffs demanded partition of the suitproperties but the defendants refused for amicable partition of thejoint family properties. Therefore, the plaintiffs filed the abovesuit for partition claiming 1/3rd share in the suit properties. 5. The brief case of the defendants are as follows: (i) According to the defendants, in the partition deed dated20.1.1981, 'A' schedule was allotted to both father and mother of 1stdefendant and the 'B' schedule was allotted to the 1st defendant.Item Nos. 1 to 3 and 5 were allotted to the share ofSreenivasaiah, son of Goopalli Muniamma and her husband Ramaiah. Initem No.4 of the suit property, Goopalli Muniamma sold 0.05 acresto the husband of the 3rd defendant and he is in possession andenjoyment since then. The husband of the 3rd defendant built two bussheds in his property in the year 1963 and was collecting the rentfrom it since then. Apart from the above properties, there was noother properties of Goopalli Muniamma available for any partition. (ii) In the partition deed dated 20.1.1981, both wife andhusband have jointly taken the 'A' schedule property. Hence, the'A' schedule belongs to the 1st defendant and none else. That thedefendants 1 to 3 and the wife of 1st plaintiff are entitled to the1/4th share is denied by the defendants. Kamala did not have anyright to succeed to any property, since there is no property ofGoopalli Muniamma at all. Hence, the question of succession does notarise. After the marriage of Kamala, she was in her husband's houseand was never in possession and enjoyment of the suit propertieseither physical or constructive. The plaintiffs never resided inthe suit house. Plaintiffs are not entitled for any partition whichare in the possession and enjoyment of the first defendant who alonehas got title except item No.4 which was already sold. Theplaintiffs are not entitled to any share in the suit properties.Hence, the defendants prayed for dismissal of the suit. https://hcservices.ecourts.gov.in/hcservices/

6. At the first instance the trial court after considering theentire case, came to the conclusion that, by virtue of Ex.B2partition deed dated 20.1.1981, plaintiffs are not entitled to anyright and the suit was dismissed. The trial court also found thatEx.B2 is a valid document executed by the deceased especially whenthe same was executed jointly by her husband. 7. Aggrieved by the judgment and decree of the trial court,the plaintiff preferred appeal in A.S.No.73 of 1996 on the file ofSubordinate Judge, Hosur. The lower appellate court held that overthe suit properties, the second defendant had no antecedent right.Therefore, Muniamma can execute only a sale or gift. Since she hasnot executed any such document, Ex.B2 partition is of no avail andtherefore, Goopalli Muniamma continued to be the owner. The lowerappellate court also found that Goopalli Muniamma died few daysafter Ex.B2 and it cannot be said that the deceased knew thecontents of what she has executed. Taking that view, a preliminarydecree was passed, declaring that the plaintiffs are entitled to1/4th share in the suit properties. 8. Aggrieved over the judgment and decree in A.S.No.73 of1996, the second defendant filed second appeal in S.A.No.1291 of1996. This court by judgment dated 15.10.1996 in the said secondappeal, considered the legal effect of Ex.B2, after consideringvarious decisions relied on by the learned counsel for theappellants and respondents this court ultimately remanded the suitto the trial court since the trial court as well as the appellatecourt failed to consider whether Ex.B2 was properly executed andproved. This court found that the burden is only on the defendantsto prove the validity of Ex.B2. This court also found that Ex.B2 canbe construed as a gift deed and the nature of proof must be inconformity with the said construction of the document. On theselines, this court remanded the matter to the trial court. Onremand, the plaintiffs filed application in I.A.No.164 of 1998 toamend the plaint and the said application was dismissed and theplaintiffs preferred Civil Revision Petition in C.R.P.No.3293 of 1997and by order dated 7.12.1997, this court allowed the Civil RevisionPetition and permitted the plaintiffs to amend the plaint. Theamended plaint contains fresh paragraphs 4a, 4b and 4c by way ofintroduction of new facts. 9. The 2nd defendant filed his additional written statement onthe following grounds:(i) According to the 2nd defendant, the facts contained in thesenew paragraphs 4a, 4b and 4c are culled out of the evidence onrecord and to fill up the gaps in the suit filed by the plaintiffs.Since this court found that the document dated 20.1.1981 is a gift https://hcservices.ecourts.gov.in/hcservices/ deed and the same has been acted upon, the averments in paragraphNos. 4a, 4b and 4c were introduced. (ii) According to the 2nd defendant, the document dated20.1.1981 has been created with full knowledge and consent of all theparties to the document and the same has been acted upon from thedate of document. That Goopalli Muniyamma was blind for more thanfive years before the document came into existence has been deniedby the 2nd defendant. That her health condition was good and there wasneither force nor undue influence in the execution of the document.The 2nd defendant also denied that Gooppali Muniyama was sufferingfrom extreme physical and mental weakness. Her death was due tonatural causes of old age. The 2nd defendant also denied that bothfather and mother did not execute the document while in sound anddisposing state of mind. The document was duly and properlyattested. Except saying that the plaintiffs are denying the dueexecution and attestation of the document, it is not stated why andhow it is invalid. (iii) According to the 2nd defendant, the shops and buildings arenot joint family properties. The 1st defendant had voluntarilyexecuted a will of his properties in favour of grand sons on19.8.1985. Therefore, it is incorrect that the share of the 1stdefendant would devolve on the plaintiffs and also on the defendants2 and 3. It is incorrect to contend that the share of theplaintiffs would get enlarged as 1/3rd in all the suit properties.The share of the 1st defendant vested in legatees under the willdated 19.8.1985 executed by the 1st defendant in favour of his minorgrand sons. The will came into existence and the properties coveredunder the will vests with the legatees through their legalguardian. (iv) According to the 2nd defendant, the amendmentscontained in paragraphs 4a, 4b and 4c seek to create a new case.After the execution of sale deed on 21.1.1981, the 2nd defendant,at his cost and expense, constructed 7 shops and 17 houses inS.No.121 A/1A and he is in continuous possession and enjoyment ofthe suit properties since then. Therefore, the 2nd defendant prayedfor dismissal of the suit. 10. Before the trial court, on the side of the plaintiffs,4 witnesses were examined and 4 documents Exs. A1 to A4 weremarked. On the side of the defendants, 3 witnesses were examined and11 documents Exs. B1 and B11 was marked. 11. Heard Mr.V.Raghavachari, learned counsel appearingfor the appellant and Mr.S.Parthasaraty learned senior counselfor the respondents. https://hcservices.ecourts.gov.in/hcservices/

12. At the time of admission of the above Second Appeal,the following substantial questions of law arose for consideration:-i)Whether the courts below are erred in rejectingEx.B2 when its execution had been upheld by the Highcourt and due execution had been proved by D.W.2 andD.W.3 ? 13. The learned counsel for the appellant also raised thefollowing substantial questions of law in the memorandum of grounds: "i)Whether the courts below are right in disbelievingEx.B2, when its execution had been upheld by the Highcourt and due execution had been proved by examination ofP.W.2 and P.W.3?ii) Whether the courts below have not misplaced theburden of proof while rejecting Ex.B2 and should it nothave seen that the obligation to disprove the document isupon the plaintiffs particularly when they have allegedthat Goopali Muniamma was not in sound disposing state ofmind and health and the document had been secured underfraudulent circumstances?iii) Whether the courts below ought not to have heldthat under proviso to section 68 of the Evidence Act inthe absence of specific denial the attesters to thedocument need not be examined?iv) Whether the courts below ought not to have heldthat the plaintiffs admitted the execution of Ex.B2 andunder such circumstances, should it not applied section 70of the Evidence Act and hold against the plaintiff's asregards the execution?v) Whether the courts below ought not to haveconcluded that the attestation of a document stands provedby examination of the scribe (DW2) and DW3, theidentifying witness?vi) Whether the courts below ought not to haveconcluded that in the absence of cross examination of DW2and DW3 as regards the execution of Ex.B2, the same standsconclusively proved and the respondents are estopped fromchallenging it?vii) Whether the courts below ought not to haveapplied the elementary principle that in absence of cross- https://hcservices.ecourts.gov.in/hcservices/ examination on a crucial issue the same is deemed to havebeen admitted and on the facts of the case there is nocross examinations as regards the attestation and shouldnot the courts below conclude that Ex.B2 cannot beimpeached?viii) Whether the courts bellow have not misplacedthe burden of proof upon the appellant, when theplaintiffs have challenged the mental capacity of GoopaliMuniamma?xi) Whether the courts are right in decreeing thesuit when proper and necessary to the proceedings viz.,the legatees of Ramaiah have not been made parties in thesuit?x) Whether the courts below are right in decreeingthe suit in respect of suit item No.4 when the appellanthad established he had raised extensive structure from andout of his earnings?14. Mr.V.Raghavachari, learned counsel appearing for theappellants contended that once this court in S.A.No.1291 of 1996found that Ex.B2 document can be construed as a gift, the courtsbelow ought not to have gone into that question again; that thegenuineness of the document cannot be subjected to scrutiny beforethe court below when this court rejected the case of the respondentsof having secured the document by undue influence; that the burdenof proof as regards in-capacity of Goopali Muniama is upon therespondents/plaintiffs and that they have not let in any evidence toestablish that the said deed had been secured by means as alleged bythem; that the attestors were not available at the time of trial;that the appellant/2nd defendant had examined himself, the scribe andthe identifying witness to the document to prove the case of theappellant/2nd defendant, on the contrary, none was examined at theinstance of the respondents/plaintiffs except P.W.4; that after evenin the amendment of pleadings, no evidence had been adduced to attackEx.B2 and under section 68 of the Indian Evidence Act, except in caseof will, in cases of all other documents required to be attested inthe absence of specific denial, there is no necessity to examine theattestors; that in the absence of cross examination of DW2 and DW3 asregards the execution of Ex.B2, the same stands conclusively provedand the respondents are estopped from challenging it.15. Learned counsel for the appellant relied on the followingdecisions for genuineness of registered will:(i) 1995 (2) SCC 664 (P.P.K.Gopalan Nambiar v.P.P.K.BalakrishnanNambiar and others). https://hcservices.ecourts.gov.in/hcservices/ From the above judgment it could be seen that though it is theduty of the propounder of the will to prove the will and to removeall the suspected features, but there must be real, germane and validsuspicious features and not fantasy of the doubling mind. In thepresent case the suspicion entertained by the trial court and theHigh court was without any basis. (ii) In AIR 1999 SC 2203 (Brij Raj Singh (dad) by L.Rs. & ors.v. Sewak Ram and anr.), it is held as follows:"27. We are of the view that the above extracts fromthe judgments of the various high courts do reflect thecorrect position in law. In the case on hand P.W.6 hascategorically stated that he has signed as scribe, signed asidentifying witness. We also find his signatures at threeplaces. Nothing was elicited from this witness to disbelievehis statement in chief examination. It is not denied thatthe deed was registered as per the Indian Registration Act.Therefore, even on merits the appellant has established thedue execution and attestation of the gift deed according tolaw. We find from the original gift deed at the first apgeby the side of the signatures of the donor,two witnesseshave subscribed their signatures. We, therefore,hold thatthe lower appellate court and the High court went wrong inallowing the defendants to raise the plea of non-complianceof section 123 of the Transfer of Property Act and inholding that the gift deed was not proved." (iii) 2004(7) SCC 398 (Gounti Satya Reddi v. Govt of AndhraPradesh and others).From the above judgment it has been heldthat in the case of non examination of attesting, could not be acircumstance strong enough to hold that a false document was therebycreated. 16. Learned counsel for the appellant relied on the followingjudgments for presumption under section 114 of Indian Evidence Act.Now, It will be appropriate to extract the provisions ofSection 114 of Indian Evidence Act which reads as follows: 114.Court may presume existence of certain facts.-The Court may presume the existence of any fact which itthinks likely to have happened, regard being had to thecommon course of natural events, human conduct and publicand private business, in their relation to the facts of theparticular case. (i) AIR(1996) SC 2677 (Ajay KrishaShinghal and others v. UnionBank of India and others), in paragraph 12 it has been held asfollows: https://hcservices.ecourts.gov.in/hcservices/ "12. After perusing the records and satisfyingourselves and also considering various cogent and weightyreasons given by the learned Judges, we are of the opinionthat the substance of the notification under Section 4(1)was duly published in the locality. It is not the law andcould and would not be the law that publication of thesubstance of Section 4(1)notification in the locality shouldbeen established beyond shadow of doubt and benefit shouldbe extended to the owner or interested person of the land.Obvious thereto, presumption under Section 1149e) ofEvidence Act has been raised that official acts have beenproperly done unless proved otherwise. We are satisfiedthat it was properly done. It is futile to reiterate thesettled legal position that the publication of thenotification under Section 491) in the Gazette and substancethereof in the locality are mandatory requirements and theomission thereof renders the notification void. In KhubChand's case, this Court had held the same view. But asrecorded earlier, since substance of the notification waspublished in the locality, the second limb of therequirement also stands complied with. Considered fromthis perspective, we of the considered view that the HighCourt has not committed any error of law."(ii) 2000(4) CTC 11 (D.J.Dhanraj v. D.Venkatarathinam andanother) In the above judgment this court held that if purchaser didnot make any allegations of fraud or collusion against bailiff oragainst court official, the presumption that official acts areperformed regularly will apply in such case.(iii) In 2008(1) MLJ 193(SC)(Asokan v. Lakshmikutty and ors.),the Apex Court held as follows: "18. When a registered document is executed and theexecutors are aware of the terms and nature of thedocument, a presumption arises in regard to the correctnessthereof. (See Prem Singh and ors. v. Birbal and ors.MANU/SC/8139/2006)When such a presumption is raised could with the recitalsin regard to putting the donee in possession of theproperty, the onus should be on the donor and not on thedonee. iv. In Alavi (supra) paripoornan, J. (as His lordshipthen was) held:"It is settled law that where the deed of gift itselfrecites that the donor has given possession, of the https://hcservices.ecourts.gov.in/hcservices/ properties gifted to the donee, such a recital is binding onthe heirs of the donor. It is an admission binding on thedonor and those claiming under him. Such a recital raised arebuttable presumption and is ordinarily sufficient to holdthat there was delivery of possession. Therefore, theburden lies on those who allege or claim the contrary toprove affirmatively that in spite of the recitals in thegift deed to the effect that possession has been deliveredover, in fact, the subject matter of the gift was notdelivered over to the donees.20. Section 91 of the Indian Evidence Act covers bothcontract as also grant and other types of disposal ofproperty. A distinction may exist in relation to a recitaland the terms of a contract but such a question does notarise herein inasmuch as the said deeds of giftwereexecutedout of love and affection as well as on the ground that thedonee is the son and successor of the donor and so as toenable him to live a good family life.21. Could they now turn round and say that he was tofulfill a promise? The answer thereto must be rendered inthe negative. It is one thing to say that the execution ofthe deed is based on an aspiration or belief, but it isanother thing to say that the same constituted as onerousgift.What, however, was necessary is to prove undueinfluence so as to bring the case within the purview ofSection 16 of the Indian Contract Act. It was not done.The deeds of gift categorically state, as an ingredient fora valid transaction, that the property had been handed overto the donee and he had accepted the same. In our opinion,even assuming that the legal presumption therefore may beraised, the same is a rebuttble one but in a case of thisnature, a heavy onus would lie on the donors."17. With regard to burden of proof and plea of undueinfluence, the learned counsel for the appellant relied on thefollowing judgments.(i) AIR 1963 SC 1279 (Ladli Prasad Jaiswal v. Karnal DistilleryCo. Ltd. and Ors.), it is held as follows: "26. Whether a particular transaction was vitiated onthe ground of undue influence is primarily a decision on aquestion of fact. In Satgur prasad v. Har narain Das I.L.R.(1932) IndAp 147, the privy Cuncil held that in a suit toset aside a deed on the ground that it was produced by undue https://hcservices.ecourts.gov.in/hcservices/ influence and fraud, the finding that it was so procured isa finding of fact and isnot liable to be reopened if fairlytried. Under the Civil producer Code, a second appeal doesnot lie to the high Court, except on the grounds speficiedin the relevant provision of the Code, prescribing the rightto prefer a second appeal, and the High Court has nojurisdiction to entertain a second appeal "on the ground ofan erroneous finding of fact however gross or inexcusablethe error may seem to be" (Mussummant Durga Choudhrain v.jawahir Singh Choudhri I.L.R.(1890) IndAp 122. But thechallenge before Bishan narain.J., to the decision of thedistrict judge was founded not on the plea that appreciationof evidence was erroneous, but that there were no adequateparticulars of the plea of undue influence, that theparticulars of facts on which undue influence was heldestablished by the District Judge were never set up, thatthere was no evidence in support of the finding of theDistrict Judge and that burden of proof on a misconceptionof the real nature of the dispute was wrongly placed on theplaintiff. A decision of the first appellate Court reachedafter placing the onus wrongly or based on no evidence orwhere there has been substantial error of defect in theprocedure, producing error or defect in the decision of thecase on the merits, is not conclusive and a second appeallies to the High Court against that decision.27.Order 6 Rule 4 of the Code of Civil Procedureprovides that in all cases in which the party pleadingrelies on any misrepresentation, fraud breach of trust,willful default, or undue influence, and in all other casesin which particulars may be necessary beyond such as areexemplified in the forms in the Appendix particulars (withdates and items if necessary)shall be stated in thepleading. The reason of the rule is obvious. A plea that atransaction is vitiated because of undue influence of theother party thereto, gives notice merely that one or more ofa variety of insidious forms of influence were brought tobear upon the party pleading undue influence, and byexercising such influence, an unfair advantage was obtainedover him by the other. But the object of a pleasing is tobring the parties to a trial by concentrating theirattention on the matter in dispute, so as to narrow thecontroversy to precise issues, and to give notice to theparties of the nature of testimony required on either sidein support of their respective cases. A vague or generalplea can never serve this purpose; the party pleading musttherefore be required to plead the precise nature of theinfluence exercised, the manner of use of the influence,and the unfair advantage obtained by the other. This rule https://hcservices.ecourts.gov.in/hcservices/ has been evolved with a view to narrow the issue and protectthe party charged with improper conduct from being taken bysurprise. A plea of undue influence must, to serve thatdual purpose, be precise and all necessary particulars insupport of the plea must be embodied in the pleading: if theparticulars stated in the pleading are not sufficient andspecific the court should, before proceeding with the trialof the suit, insist upon the particulars, which givenadequate notice to the other side of the case intended to beset up.30. The plea of undue influence and coercion by theCompany and defendants 2 to 5 was raised in terms whichwere identical. The plea analysed in its component partsmay be stated as follows:"(1) Because of the resolution dated October 16,1945 the plaintiff "succeeded in getting dictatorialpowers over the Company, practically usurping allthe powers of the General body of the shareholdersand thereby purporting to deprive them to exerciseeven those rights which they" were "legally entitledto exercise under the law";(2)"These resolutions which gave the plaintiff acomplete veto over the affairs of the Company (whichis not permissible under any valid constitution)were obtained by the plaintiff at the point of adagger";(3)"That the plaintiff was refusing to hand overcharge of the money, books and the entire assets ofthe Company and using the funds of the Company forruinous litigation against the defendants who on theother hand were having to prosecute their cases outof their meager funds which too were dwindlingfast";(4)"Taking full advantage of his position andknowing fully well the resources of the defendants,the plaintiff succeeded in coercing the defendantsin submitting to his dictations and virtuallycompelled them to pass these constitutionalresolutions".33. The pleading which was regarded as one of the undueinfluence also suffers from a lack of particulars. How theplaintiff took advantage of his position as a person inpossession of the assets of the company and by what device https://hcservices.ecourts.gov.in/hcservices/ he compelled the defendants to submit to his will has notbeen stated. Section 16 of the Indian Contract Act, whichincorporates the law relating to undue influence in itsapplication to contracts is but a particularisation of alarger principle. All transactions procured in the mannerset out therein, are regarded as procured by the exercise ofundue influence. Section 16 of the Contract Act provides:"(1) A contract is said to be induced by 'undueinfluence' where the relations subsisting between theparties are such that one of the parties is in aposition to dominate the will of the other and usesthat position to obtain an unfair advantage over theother.(2)In particular and without prejudice to thegenerality of the foregoing principle, a persons isdeemed to be in a position to dominate the will ofanother-(a)where he holds a real or apparent authorityover the other, or where he stands in a fiduciaryrelation to the other; or(b)where he makes a contract with a personwhose mental capacity is temporarily or permanentlyaffected by reason of age, illness, or mental orbodily distress.(3) where a person who is in a position todominate the will of another, enters into a contractwith him, and the transaction appears, on the fact ofit or on the evidence adduced, to be unconscionable,the burden of proving that such contract was notinduced by undue influence shall lie upon the personin a position to dominate the will of the other.Nothing in this sub-section shall affect the provisionof section 111 of the Indian Evidence Act, 1872."34. The doctrine of undue influence under the commonlaw was evolved by the Courts in England for grantingprotection against transactions procured by the exercise ofinsidious forms of influence spiritual and temporal. Thedoctrine applies to acts of bounty as well as to othertransactions in which one party exercising his position ofdominance obtains an unfair advantage over another. TheIndian enactment is founded substantially on the rulels ofEnglish common law. The first sub-section of s.16 lays down https://hcservices.ecourts.gov.in/hcservices/ the principle in general terms. Bu sub-section 92) apresumption arises that a person shall be deemed to be in aposition to dominate the will of another if the conditionsset out therein are fulfilled. Sub-section (3) lays downthe conditions for raising a rebuttable presumption that atransaction is procured by the exercise of undue influence.The reason for the rule in the third subsection is that aperson who has obtained an advantage over another bydominating his will, may also remain in a position tosuppress the requisite evidence in support of the plea ofundue influence."(ii) In 1996(2) L.W. 600 (Dharman and 5 others v. Marimuthu) itis held as follows:"If on the face of the document, the nature of thetransaction covered by the document appears to be eitherunconscionable or unnatural one, the burden of proving thatthe transaction was not induced by undue influence isconsidered uniformly to rest with the beneficiary under thedocument. That apart, the various decisions also point outsufficiently indicating as to what type of circumstancespresent in a particular given case could be taken to providethe necessary indicia or test to form an opinion about theunnatural or unconscionable character of the transaction.Though normally, the court does not concern itself witha man making even an improvident gift or effecting adisposition of the property in a way that no right-mindedperson would be disposed to do so, such factors orcircumstances appended with the execution of a gift mayfurnish a clue or serve as a pointer to the fact that thedonor either did not intend it or that it was anunconscionable and unnatural transaction and in suchcircumstances the beneficiary under such transaction isbound in law to clear such suspicions or explain about theexistence of some valid or other reason for such adisposition being made. It is in such circumstances, theApex Court also on more that one occasion observed that ifthe transaction appears to be unconscionable, then theburden of proving that the contract was not induced byundue influence lies heavily upon the beneficiary under thedocument who was in a position to dominate the will of theother."(iii) In AIR 1999 MAD 40( S.Kaliyammal and others v.K.Palaniammal and others) it is held as follows: https://hcservices.ecourts.gov.in/hcservices/ "6. I carefully considered the contentions of both thecounsel. The short question involved in this second appealis whether the will executed by Nanjammal in favour of thedefendants 3 and 4 has been proved. The main contention ofthe counsel of the appellants is that the plaintiffs havedenied the execution of the said will by Nanjammal.7. On the contrary it is contended on behalf of thedefendants that the execution of the will by Nanjammal hasbeen admitted by the plaintiffs and their only plea is thatthe will has been executed by the said Nanjammal by coercionand undue influence. Hence it is unnecessary to prove theexecution of the will.8. The lower appellate Court has found that Ex.B-26,the will is valid on the ground that the will has been giveneffect to in accordance with intention of the testator.Immediately after the death of the testator, the revenuer3cords has been changed in the name of the defendants 3 and4 and they have produced number of documents to establishtheir possession. The plea of the plaintiffs that the willwas executed under undue influence has not been establishedby the plaintiffs and on that ground the lower appellateCourt has allowed the appeal.9. To consider the plea of the parties, I am of theview (that) (sic) it is necessary to refer to the avermentsmade by the plaintiffs in the plaint. The relevantparagraphs 6, 7 and 11 or the plaint are as follows:"Nanjammal lived with her sons at Kalapanaickenpalayam andused to visit her daughters at Edaiyapalayam and stay therefor some days also.While so on one of these visits to Elaiyarapalayam thehusband of the defendants 3 and 4 namely the KavundaryGounder by practising fraud and undue influence on Nanjammalwho was aged 75 years, and in weak state of health appear tohave obtained her thumb mark on a papers by somemisrepresentation, got engrossed on alleged will thereonpurporting to have been executed by her and took to the Sub-Registrar's office and got it registered.10. From the above pleadings, it is clear that there isno specific denial by the plaintiffs with regard to theexecution of the will by Nanjammal. A perusal of the aboveextracted portions in the plaint would clearly establishthat the plaintiffs had impliedly admitted the execution ofthe will by the said Nanjammal and their only plea is that https://hcservices.ecourts.gov.in/hcservices/ Nanjammal has executed the disputed will only under undueinfluence and fraud played by the husband of the defendants3 and 4. It is the further plea of the plaintiff thatNanjammal was residing with the sons and she was visitingher daughters only in lucid intervals and on one suchoccasion the will has been brought out by the husband if thedefendants 3 and 4. 11. When the specific plea of the plaintiffs is thatthe husband of the defendants 3 and 4 has got the willexecuted by Nanjammal under defraud and undue influence,then naturally the burden is on the plaintiffs to establishthe same. But unfortunately there is absolutely no evidenceto prove the averments made in the plaint. In fact, exceptthe averments made in the plaint that the will was executedby the Nanjammal by fraud and undue influence, there is noother material to come to the conclusion that the will hasbeen executed under undue influence. Even in the evidence,PW-1has stated as follows: (vernacular matter omitted) Even as per the evidence, it is admitted that the willhas been executed by the Nanjammal but it was only underfraud and undue influence." (iv) In 1999 (2) CTC 481 (Hameed Ghosh Beevi and another), it isheld as follows: 16. The Courts below haveanalysed the entire evidenceon record and come to the conclusion that the appellantsknew about what they were doing when they executed theimpugned documents under they had been conducting severalcases and in those cases, they were being assisted byHaneefa Rowthar and Sambanda Thevar. Interestingly, HaneefaRowthar andSambanda Thevar are the attestors to the twodocuments. It is spoken to by the witnesses only on theside of the first respondent that the drafts of thedocuments were read out to the appellants in presence of theHaneefa Rowthar and Sambanda Thevar and accepting thecontents of the documents the first plaintiff affixed herthumb impression and second plaintiff put her signature.The courts below have also observed that the plaintiffs knewabout the difference between a sale and a mortgage.Absolutely, no motive had been attributed to the witnesseson the side of the first defendant and factually it had beenfound by the courts below that the documents ere signed,read out and executed by the plaintiffs in the presence ofHaneefa Rowthar and Sambanda Thevar without compulsion andwith full knowledge of contents. The second plaintiff as https://hcservices.ecourts.gov.in/hcservices/ PW-1 has also admitted that the plaintiffs were beingassisted by Sambanda Thevar and Haneefa Rowthar in allaffairs and they trusted those people and they would notdepose against the plaintiffs. Vital admissions wereelicited from PW-1 about how Sambanda Thevar was closed toher husband and there was a court case between her husbandand the first respondent and it was settled with theassitance of Haneefa Rowthar and Sambanda Thevar, thatthere was some court case between her and one Chinnathambiand in that case Haneefa and Sambanda Thevar wereconducting the proceedings on her behalf and any difficultproblem relating to her would be solved by her through thegood offices of Haneefa and Sambanda Thevar. The Courtsbelow have also observed that the appellants had not chosento examine Haneefa and Sambanda Thevar. Particularly, whenthey were aware of the fact that Sambanda Thevar and Haneefawere stated to have attested the impugned documents. (v) In 2000(2) CTC 184 (K.Andi Reddiar v. Ovu Ammal and 5others), it is held as follows: "26. In the present case, the execution of the will isadmitted as well as the testamentary capacity and the keeralmark as well as the LTI of the deceased has been supportedby sufficient evidence and thus the onus has beendischarged. When the defendants allege undue influence orfraud, or coercion, the onus is on them to prove the same.As already pointed out, the defendants filed a writtenstatement whereunder it was vaguely pleaded and the relevantportion of the written statement reads as follows:"4. The Nagu Reddiar never intended to execute anywill. The will referred to in the plaint dated 22.6.1964 wasbrought about by undue influence and coercion exercised bythe plaintiff and the first defendant on the fickle and weakminded Nagu Reddiar who was not in a sound and disposingstate of mind. 5. The said will was brought about by the evildesign of the plaintiff with the sole object of putting theproperties out of the reach of defendants 2 and 3 who arethe daughters of the said Nagu Reddiar by his first wife."27.The defendants have not proved their plea that thewill was brought about by undue influence and coercionexercised by the plaintiff as rightly pointed out by thefirst appellate court had caste the onus on the plaintiff toprove the negative namely that there was no undue influenceor coercion on the deceased. In fact, DW-2 identifying the https://hcservices.ecourts.gov.in/hcservices/ witness had deposed that the plaintiff was not at allpresent anywhere near and his admission is fatal. There isno iota of evidence to hold that the plaintiff had exercisedundue influence or coercion on the deceased testator. Asalready pointed out the sound disposing state of mind of thetestator was proved and admitted as well. The execution ofthe will has been admitted by the first defendant DW-1.28. In the light of the decision of the Apex Court inShashi Kumar v. Subodh Kumar, 1964 SC 529 this Court holdsthe finding of the first appellate court can not besustained and it is a perverse finding as the firstappellant court proceeded on the assumption that it is forthe plaintiff to prove that there was no undue influence orcoercion. 29. In support of his contention Mr.Velusamy, learnedcounsel for the appellant relied upon the later decision inSusama Bala v.Anath Nath AIR 1976 cal 377 D.B. where afterreferring to the earlier case laws reported inH.Venkatachala Iyengar v.B.N.Thimmajamma AIR 1959 SC 443Rani Poornima Devi v. khagendra narayan Dev AIR 1962 SC 567Sasikumar v.Subodh Kumar AIR 1964 SC 529 AIR 1968 SC 1332and AIR 1972 cal 210 the Calcutta High Court held thus-"8. In order to buttress up their argument the learnedadvocates had drawn our attention to a number of decisionswith a vie to guide the court in the matter of appraisementof evidence regarding the execution of the will and thealleged suspicious circumstances surrounding such execution.The first case that has been brought to our notice toprovide us unnecesary guidance is reported in H.VenkatachalaIyengar v. B.N.Thimmajamma, AIR 1959 SC 443. In this case,speaking for the Bench B..B.Gajendragadkar, J. (as he thenwas) elaborately discussed the relevant provisions of theIndian Evidence Act as to the manner of proving the will, asa document. He also discussed the onus of removing thesuspicious circumstances surrounding the execution of thewill, and the fact that if the propounders themselves take aprominent part in the execution of the will and take benefitunder it that itself would constitute a suspiciouscircumstance. Paragraph 19.20.21 and 22 of the judgment arevery much instructive on these points. The views expressedtherein (if we may respectful say so, a legacy from thepast)have been to I lowed in cases after cases to establishthis, our attention has been drawn by the learned advocatesto cases reported in Rani Poornima Devi v. khagendranarayan Dev AIR 1962 SC 567 Sasikumar Banerjee v.SubodhKumar Banerjee AIR 1964 SC 529 ( since deceased and after https://hcservices.ecourts.gov.in/hcservices/ him his legal representatives). In the above two cases,Wanchoo J. speaking for the Bench, has reiterated the viewswhich had already been formulated in H.Venkatachala Iyengerv. B.N.Thimmajamma AIR 1959 SC 443. From these decisions,we find that the initial onus of proving the execution ofthe will rests upon the propounder and the will has to beproved like any other document under the provisions of theIndian Evidence Act besides proving the attestation of theexecution by the witnesses. In the event, there aresuscipious circumstances surrounding the execution of thewill, we find, the onus of explaining the circumstanceswhich look suspicious and removing the suspicion from themind of the court rests squarely upon the propounder. Ifany fraud, undue influence and coercion is alleged by thecaveator then it is for the caveator to prove the allegationof fraud, undue influence and coercion. If it is shown thatthe prepounder has taken a promiment part in the executionof the will under which he has been conferred substantialbenefit, that in itself is generally treated as assuspicious circumstance surrounding the execution of thewill and the preopunder is required to remove the suspcisionby clear and satisfactory evidence. (vide also GarantiaThataiah v. Thotakura,AIR 1968 SC 1322). We also find fromthe decisions referred to above that in the matter ofappreciation of evidence for deciding material questions offact arising from the application for probate or in actionson will, hard, fast and inflexible rules can not be laiddown and proof depends upon facts and circumstances of eachcase. Therefore, bearing in mind all these essentials,albeit elementary considerations, we shall now proceed toexamine the contentions raised by the rival sides beforeus."The learned counsel is well founded in his submission.31. As already pointed out the approach of the firstappellate court is legally erroneous and contrary to the lawlaid down by the apex court. As already pointed out, theexecution of the will had been admitted by DW-1 and DW-2apart from DW-2 the attestor proving the execution of thewill by the deceased Nagu Reddiar and attestation by the twoattesting witnesses. The plea of undue influence orcoercion, had not been established by the defendants andthey have miserably failed to establish the same. The onusis on the defendants to prove that there was undue influenceor the testator was coerced as pleader is paragraph 4 and 5of the written statement.32. In the light of the decisions of the SupremeCourt, this court holds that the conclusion of the first https://hcservices.ecourts.gov.in/hcservices/ appellate court can not be sustained in law as it iscontrary to the decisions of the Apex Court and this courtwhile setting aside the finding of the appellate court asvitiated and perverse, confirms the findings of the trialcourt that the will was executed by the deceased testator ina sound and disposing state of mind and it is true and lastwill of testator Nagu Reddiar." (vi) In 2001(1) MLJ 307 (InumBeevi v. K.S. Syed Ahamed Kabir(died) and 15 others), it is held as follows: "23. The respondent apart from pleading the same hasnot proved it, on the other hand had given evidence that thedonor was not in full possession of his mental faculties,which contradicts the plea of undue influence. The learnedcounsel for the appellant relied on Ladli Prashad Jaiswal v.The Karnal Distiller Co. Ltd. Karnal, MANU/SC/0061/1962, inwhich the two conditions which are necessary to establishundue influence were set out.(a) that the party because of undue influence was in aposition to dominate the will of the other and (b) that the said party obtained an unfair advantage byusing that possession.24. If these two conditions are not fulfilled thepresumption of undue influence will not arise and burdenwill not shift the respondent had failed to establish undueinfluence either by admissions or by other evidence. Theother decision cited by the learned counsel for theappellant to support his case that plea of undue influencecannot be accepted was the decision reported in BishundeoNarain & another v. Seogeni Rai & others, MANU/SC/0059/1951,where it was held that the case has to be decided on thebasis of the particulars of undue influence given in thepleading, there can be no departure from that. Therespondent has not established his case of undue influence."(vii) In 2005(8) SCC 67 (Pentakota Satyanarayana and others v.Pentakota Seetharatnam and others), it is held as follows: "21. ... The statement made by him in the writtenstatement is one of the most important factors whichauthenticates the genuineness of the will. No evidence hasbeen let in by the respondents to show the exercise of anyfraud or undue influence at the time of execution of thewill. No evidence was adduced to show that the testator wasnot in sound state of mind and in fact, the finding is thathe was of sound mind. ... https://hcservices.ecourts.gov.in/hcservices/

22. ... This section lays down that if the deed soughtto be proved is a document required by law to be attestedand if there be an attesting wintess alive and subject toprocess of the court and capable of giving evidence, he mustbe called to prove execution. Excution consists in signinga document written out, read over and understood and to gothrough the formalities necessary for the validity of thelegal act. ... 23 A perusal of Ex.B.9 (in original) would show thatthe signature of the registering officer and of theidentifying witnesses affixed to the registrationendorsement were, in our opinion, sufficient attestationwithin the meaning of the Act. The endorsement by the Sub-Registrar that the executant had acknowleged before himexecution deed also amount to attestation. In the originaldocument, the executant's signature was taken by the Sub-Registrar. The signature and thumb impression of theidentifying witnesses were also taken in the document.After all these, the Sub Registrar signed the deed. Unlikeother documents the will speaks from the death of thetestator, and so, when it is prepounded or produced before acourt, the testator who has already departed the worldcannot say whether it is his will or not and this aspectnaturally introduces an element of solemnity in the decisionof the question as to whether the document prepounded isproved to be the last will and testament of the departedtestator. (viii) In 2009 (3) SCC 687(Bharpur Singh and ors. vs.Shamsher Singh), it is held as follows: "11. The legal principles in regard to proof of a willare no longer res integra. A will must be proved havingregard to the provisions contained in clause (c)of section63 of the Indian Succession Act, 1925 and section 68 of theIndian Evidence Act, 1872, in terms whereof the propounderof a will must prove its execution by examining one or moreattesting witnesses. Where, however, the validity of thewill is challenged on the ground of fraud, coercion, orundue influence, the burden of proof will be on thecaveator. In a case, where the will is surrounded bysuspicious circumstances it would not be treated as the lasttestamentary disposition of the testator. 15. This court in Anil Kak v. Kumari Sharada Rajeand Ors. MANU/SC/7520/2008 opined that court is required toadopt a rational approach and is furthermore required to https://hcservices.ecourts.gov.in/hcservices/ satisfy its conscience as existence of suspiciouscircumstances play an important role, holding:52. whereas, execution of any other document canbe proved by proving the writings of the document orthe contents of it as also the execution thereof, inthe event there exists suspicious circumstances theparty seeking to obtain probate and/or letters ofadministration with a copy of the will annexed mustalso adduced evidence to the satisfaction of thecourt before it can be accepted as genuine. 53. As an order granting probate is a judgmentin rem, the court must also satisfy its consciencebefore it passes an order 54. It may be true that deprivation of a dueshare by (sic to )the natural heir by itself may notbe held to be a suspicious circumstance but it is oneof the factors which is taken into consideration bythe court before granting probate or will.55. Unlike other documents, even animusattestandi is necessary ingredient for proving theattestation. Unfortunately, the first appellate court as alsothe High Court did not advert to these aspects of thematter.16. We may notice that in Jaswant kaur v. Amrit kaurand ors. MANU/SC/0530/1976, this court pointed out that whena will is allegedly shrouded in suspicion, its proof ceasesto be a simple in between the plaintiff and defendant. Anadversarial proceeding in such cases becomes a matter ofcourt's conscience and propounder of will has to remove allsuspicious circumstances to satisfy that will was dulyexecuted by testator wherefor cogent and convincingexplanation of suspicious circumstances shrouding the makingof the will must be offered.Learned counsel for the appellant also contended thatthe respondent/plaintiff in the amended plaint have admittedthe execution of the Ex.B2 document."18. Learned counsel for the appellant relied on thefollowing decision with regard to the contention that scribe can betreated as attesting witness. https://hcservices.ecourts.gov.in/hcservices/ (i) In AIR 1995 MAD 415 (Kamakshi Ammal v. Rajalakshmi andothers), it is held as follows: "15.We shall consider the question of attestation. Itis well known that section 123 of The Transfer of PropertyAct, which provides for the mode of making a gift ofimmovable property, interalia, provides that the registeredgift document by the donor must be attested by the twowitnesses. Section 68 of the Evidence Act, which providesfor proof of execution of document, required by law to beattested, says that if a document is required by law to beattested, which shall not be used as evidence until oneattesting witness atleast has been called for the purposeof proving its execution. However, the proviso therein saysthat it shall not be necessary to call an attesting witnessin proof of execution of any document, not being a will,which has been registered in accordance with the provisionof Indian Registration Act "unless its execution by theperson by whom it purports who has been executed, itsspecifically denied". There is also one other section inthe Evidence Act, viz., S.70 which says that the admissionof a party to an attested document of its execution byhimself shall be sufficient proof of its execution asagainst him, though it be a document required by law to beattested. With reference to this S.70, it has been howeverheld that the admission contemplated in S.70 is an admissionof execution in the manner in which a document required bylaw to be attested, it is to be executed. In other words,the word "execution" in S.70 designates the whole operationincluding signing by the executant and the attestation bythe witness. (Vide Davood Rowther v. Ramanathan ChettiarMANU/TN/0331/1937. In the present case, no doubt, the 7thdefendant can be said to have admitted his signing of Exs.A.3 and A.4 as executant of the respective documents. InEx.A.9 dated 25.9.1979, which seeks to cancel Exs.A.4 andA.11 dated 21.9.1979, which seeks to cancel Ex.A.3 7thdefendant has referred to the execution of Exs.A.3 and A.4respectively. Ex.A.12 dated 26.9.1979 is the communicationsent by 7th defendant to the concerned Municipality,informing about he above said cancellation of the settlementearlier in 1973. But, in the light of AIR 1938 MAD 43(supra) it cannot be said that merely because of the abovesaid Exs.A.9, A.11 and A.12, the 7th defendant had alsoadmitted execution of Exs.A.3 and A.4 in the manner in whichthose documents are to be executed in accordance with law.In other words, those documents would not prove admissionby 7th defendant, of the attestation of those settlements.So, independently the plaintiff has to prove dueattestation. https://hcservices.ecourts.gov.in/hcservices/

17.In the above back ground, before seeing the legalposition let us see the relevant oral evidence recorded.D.W.1 is the plaintiff, aged 22 at the time when theevidence was given (26.11.1982). Regarding the above saidattestation in 1973 her evidence may not be quiet relevant.Then the evidence of P.W.2 is also not relevant since he wasexamined only in relation to the aforesaid will. Then P.w.3was also examined only to prove the above said Ex.A.12. Soregarding the above said attestation question, we have onlyto see mainly the evidence of P.Ws. 4 and 5, a documentwriter says in chief examination, with reference to Ex. A.3that he and other witnesses (vernacular words omitted) sawthe 7th defendant singing Ex.A.3 and that they saw himself(P.W.4) and other witnesses signing the said document.Likewise, he deposes with reference to Ex. A.4 also.Learned counsel for the appellant submits that because theexpression used by him in the above said deposition is(vernacular words omitted) the term (vernacular wordsomitted) referring to P.W.4 cannot be taken as a person, whoattested the document with the requisite animus. But we,are unable to accept this contention. Simply because of thesaid phraseology used by P.W.3, viz., (vernacular wordsomitted)it cannot be said that P.W.4 had not attested thesignature of the 7th defendant in the above said settlementdeeds. Specifically, he has deposed that he has also seen7th defendant signing a said settlement deeds and on theother particular aspect, it must be noted that there isabsolutely no cross examination. The deposition recorded incross examination is as follows:(vernacular words omitted)Therefore, we hold that P.W.4 was not only the scribe of thetwo documents, but he has also seen execution and signing ofthe said documents and, therefore, he could also be treatsas an attestor to the said documents with the requiredanimus. There could be no difference of opinion as to thelegal proposition that the scribe of a document could alsobe an attesting witness thereof, if he has signed thedocument with the required animus to the attest (videMANU/TN/0492/1983 (supra) and the above referred to otherdecisions cited by the learned counsel for the 1strespondent). In fact in MANU/TN/0492/1983, it has also beenobserved that the fact that a person calls himself a scribein a certain document does not debar him from being anattesting witness, if he has in fact witnessed theexecution. In the present case, P.W.4 has deposed that hehas seen 7th defendant signing Exs. A.3 and A.4. Further,Ex.A.4 also shows that P.W.4 has written and attested the https://hcservices.ecourts.gov.in/hcservices/ said document. In MANU/OR/0008/1983 (supra) also, it hasbeen held that when a person puts the signature on thedocument both as scribe and an attesting witness, theinference is that he function both as scribe and asattesting witness. In AIR 1940 Rangoon 134 (supra) also, ithas been held that when a man places his signature uponadocument and at the same time describes himself as writerthereof, the interference is that he signs as the writer andnothing else but as a matter of fact it can be shown that hesinged not only as a writer but also as witness of thefact that he saw the document executed. In the presentcase, in so far as Ex. A4 is concerned, there is a statementat the end of the document P.W.4 wrote as well as attestedthe document. Though, in Ex.A3 such a statement is notthere P.W.4 has deposed that he has seen the executantsigning the document and on that aspect there is no crossexamination as mentioned above." 19. With regard to the contention of non cross examinationof witness on a relevant point will amount to acceptance of the saidpoint, learned counsel for the appellant relied on a judgmentreported in 1996(1) MLJ 10 SN ( D.Pattammal v. K.Kalyanasundaram) 20. Countering the submissions made by the learnedcounsel for the appellant, Mr.S.Parthasarathy, learned seniorcounsel appearing for the respondents submitted that the burdenis only on the appellant to prove the execution of the document;that this court in S.A.No.1291 of 1996, very clearly remanded thematter to the trial court only for the purpose of proving Ex.B2document; that the burden is on the appellant/2nd defendant toprove the validity of Ex.B2; that in the amended plaint, theyspecifically denied the execution of Ex.B2 by Goopali Muniyama; thatthe evidence of D.W.2 and D.W.3 alone may not be sufficient toprove the proper execution of Ex.B2; that the attestors are very muchavailable at the time of trial, hence, non examination of theattestors by the appellant/2nd defendant will amount to non provingof Ex.B2 document as per section 68 of the Indian Evidence Act.21. In support of the said contentions learned seniorcounsel relied on a judgment reported in 1969 (1) SCC 573 (A.L.AbdulJabbar Sahib v. M.V.Venkata Sasri & Sons and others), which reads asfollows: "7. Section 3 of the Transfer of Property act givesthe definition of the word "attested" and is in these words:" 'Attested' in relation to an instrument meansand shall be deemed to have meant attested by two or morewitnesses each of whom has seen the executant sign or affixhis mark to the instrument, or has seen some other personsin the instrument in the presence and by the direction of https://hcservices.ecourts.gov.in/hcservices/ the executant, or has received from the tant a personalacknowledgment of his signature or mark, or of thesignature of such other person, and each of whom has signedthe instrument in the presence of the executant; but itshall not be necessary that more than one of such witnessesshall have been present at the same time and no particularform of attestation shall be necessary.It is to be noticed that the word "attested", the thingto be defined, occurs as part of the definition itself. Toattest is to bear witness to a fact. Briefly put, theessential conditions of a valid attestation under section 3are: (I) two or more witnesses have b seen the executantsign the instrument or have received from him a personalacknowledgment of his signature; (2) with a view to attestor to bear witness to this fact each of them has signed theinstrument in the presence of the executant. It isessential that the witness should have put his signatureanimo attestandi, hat is, for the purpose of attestingthat he has seen the executant sign or has received from hima personal acknowledgment of his signature. If a personputs his signature on the document for some other purpose,e.g., to certify that he is a scribe or an identifier or aregistering officer, he is not an attesting witness. 8."In every case the Court must be satisfied that thenames were written animo attstandi" see Jarman on Wills, 8thed., p. 137. Evidence is admissible to show whether thewitness had the intention to attest. "The attesting witnessmust subscribe with the intention that the subscription madeshould be complete attestation of the will, and evidence isadmissible to show whether such was the intention or not,"see Theobald on Wills, 12th ed., p.129. In Girja Datt v.Gangotri, the court held that the two persons who hadidentified the testator at the time of the registration ofthe will and had appended their signatures at the foot ofthe endorsement by the sub-Registrar, were not attestingwitnesses as their signatures were not put "anmoattestandi". In person who had put his name under the word"scribe" was not an attesting witness as he had put hissignature only for the purpose of authenticating that he wasa "scribe". In Shiam Sunder Singh v. Jagannath Singh, thePrivy Council held that the legatees who had put theirsignatures on the will in token of their consent to itsexecution were not attesting witness and were notdisqualified form taking as legatees.9.The Indian Registration Act, 1908, lays down adetailed procedure for registration of documents. The https://hcservices.ecourts.gov.in/hcservices/ registering officer is under a duty to enquire whether thedocument is executed by the person by whom it purports tohave been executed and to satisfy himself as to the identityof the executant, [Section 34(3)]. He can register thedocument if he is satisfied about the identity of the personexecuting the document and if that person admits execution[Section 35(1)]. The signature of the executant and ofevery person examined with reference to the document areendorsed on the document (section 8). The registeringofficer is required to affix the date and his signature tothe endorsements (section 59). Prima facie, the registeringofficer puts his signature on the document in discharge ofhis statutory duty under section 59 and not for the purposeof attesting it or certifying that he has received from theexecutant a personal acknowledgment of his signature.10.The evidence does not show that the registeringofficer D.W.Kittoo put his signature on the document withthe intention of attesting it. Nor is it proved that hesigned the document in the presence of the executant. Inthese circumstance, he cannot be regarded as an attestingwitness, see Sunder Bahadur singh v. Thakur Behari singh.Likewise the identifying witnesses Sankaranarayana and KakiAbdul Aziz put their signatures on the document toauthenticate the fact that they had identified theexecutant. It is not shown that they put their signaturesfor the purpose of attesting the document. They cannot,therefore, be regarded as attesting witnesses."22. Learned senior counsel also relied on a judgmentreported in 2001 (7) SCC 503 (N.Kamalam (dead) and another v.Ayyasamy and another), which reads as follows:"3. Turning on to the former expression onus probandi,i is now a fairly well-settled principle that the same liesin every case upon the party propounding the will and ;maysatisfy the court's conscience that the instrument aspropounded is the last will of a free and capabletestator, meaning thereby obviously, that the testator atthe time when he subscribed his signature on to the willhad a sound and disposing state of mind and memory andordinarily, however, he onus is discharged as regards thedue execution of the will if the propounder leads evidenceto show that the will bears the signature and mark of thetestator and that the will is duly attested This attestationhowever, shall have to be in accordance with section 68 of https://hcservices.ecourts.gov.in/hcservices/ the evidence act which requires that if a document isrequired by law to be attested, it shall not be used asevidence until at least one attesting witness has beecalled for the purpose of proving its execution and the sameis so however, in the event of there being an attestingwitness alive and capable of giving the evidence. The lawis also equally well settled that in the event of therebeing circumstances surrounding the execution of he willshrouded in suspicion, it is the duty paramount on the partof the propounder to remove that suspicion by leadingsatisfactory evidence. 25. The requiremenWhile it is true that in atestamentary disposition, the intent of the attestor shallhave to be assessed in its proper perspective but that doesnot however met of attestation presently in the country isstatutory in nature, as noticed hereinbefore, and cannot assuch be done away with, under any circumstances. an andimply non-compliance with a statutory requirement. Theintention of the attestor and its paramount importancecannot thwart the statutory requirement. No doubt thescribe has subscribed his signature but a scribe inaccordance with common English parlance means and impliesthe person who writes the document. Significantly, however,in England he King's Secretary is popularly known asScribaregis. Be that as it may, in common parlance anattribute of scribe as a more writer as noted above, doesnot stretch the amtter further. In the contextual facs,while the writer did, in fact, subscribe his signature buthe same does not underrate the statutory requirement ofattestation as more fully described hereinbefore. True itis, the strenuous submissions have been made in support ofthe appeal that "attesting witnesses" have no other role toplay but to subscribe their signatures in order to prove thegenuineness of the will and that inf ct, when the scribesigns the will, the same can be read as attestation.Needless o record, however, that the scribe Arunachalam wasexamined and it is on this score the learned advocatecontended that the evidence of an attestor thus can be saidto be on record so as to make the document namely the "will"in the instant case thus otherwise in accordance with law.26. The effect of subscribing a signature on tha partof the scribe cannot in our view be identified tot be of thesame stats as that of the attesting witnesses. Thesignature of the attesting witness as noticed above on adocument, requiring attestation (admittedly in the case of https://hcservices.ecourts.gov.in/hcservices/ a will the same is required), is a requirement of thestatute, thus cannot be equated with that of the scribe.The Full Bench judgment of the Madras High Court inH.Venkata Sastri and Sons v. Rahilna Bi wherein, RamachandraIyer, J, speaking for the Full Bench in his inimitable styleand upon reliance on Lord Campbell's observation in Burdettv. Spilsbury has the following to state pertaining to themeaning to be attributed to the word "attestation": (AIRpp.113-14, paras 3-4)"(3) ... The definition of the term 'attested' which isalmost identical with that contained in section 63(c) ofthe Indian Succession act, has been the result of anamendment introduced by act 27 of 1926. Prior to thatamendment it was held by this Court that the word 'attested'was used only in the narrow sense of the attesting witnessbeing present at the time of execution. IN Shamu Pattr v.Abdul Kadir Ravuthan the Privy council accepted the view ofthis court that attestation of of mortgage deed must be madeby the witnesses signing his name after seeing the actualexecution of the deed and that a mere acknowledgment of hissignature by he executant to the attesting witness wouldnot be sufficient. The amending act 27 of 1926 modified thedefinition of the term in the transfer of Property act so asto make a person who merely obtains an acknowledgment ofexecution and affixed his signature to the document as awitness, an attestor, It will be noticed that althoughSection 3 purports to define the word 'attested' it has notreally done so. The effect of the definition is only togive an extended meaning of the term for the purpose fo theact; the word 'attest' is used as a part of the definitionitself. IT is, therefore, necessary first to ascertain themeaning of the word 'attest' independent of the statute andadopt it in the light of the extended or qualified meaninggiven herein. The word 'attest' mans according to theShorter Oxford Dictionary 'to bear witness to, to affirmthe truth of genuineness fo, testify, certify'. In Burdettv. Spilsbury Lrod Cambell observed at p.417:'What is the meaning of an attesting witness to a deed?Why, it is a witness who has seen the deed executed, and whosigns it as a witness."The Lord Chancellor stated,'the arty who sees the will executed is in fact awitness to it, if he subscribes as a witness, he is then anattesting witness'. https://hcservices.ecourts.gov.in/hcservices/ The ordinary meaning of the word would show that anattesting witness should be present and see the documentsigned by the executant, as he could then alone vouch forthe execution of the document. In other words, theattesting witness must see the execution and sign.Further, attestation being an act of a witness, i.e. Totestify to the genuineness of the signature of theexecutant, it is obvious that he should have the necessaryintention to vouch it. 'The ordinary meaning of the word isthus in conformity with the definition thereof under theTransfer of Property act before it was amended by act 27 of1926. Before that amendment, admission of execution b y theexecutant to a witness who thereupon puts his signaturecannot make him an attestor properly so called, as he notbeing present at the execution cannot bear witness to it; amere mental satisfaction that the deed was executed cannotmean that he bore witness to execution.(4) After the amendment of section 3 by Act 27 of 1926,a person can be said to have validly attested an instrument,if he has actually seen the executant sign, and in a casewhere he had not personally witnessed execution, he hasreceived from the executant a personal acknowledgment of hissignature, mark etc. Thus of the two significantrequirements of the term 'attest', namely (1) that theattestor should witness the execution which implies hispresence, then, and (2) he should certify or vouch for theexecution by subscribing his name as a witness, whichimplies a consciousness and an intention to attest, theamending Act modified only the first; the result is that aperson can be an attesting witness, eve if he had notwitnessed the actual execution, by merely receiving personalacknowledgment from the executant of having executed thedocument and putting his signature. But the amendment didnot affect in any way the necessity for the latterrequirement, namely, certifying execution which implies thatthe attesting witness had the animus to attest." 23. On a careful consideration of the materials availableon record and the submissions made by the learned counsel for theappellant and the learned senior counsel appearing for therespondents, it could be seen that issue involved in the suit iswith regard to Ex.B2 gift deed dated 20.1.1981. On a carefulreading of the amended plaint, it could be seen that therespondents/plaintiffs in para 4(a), in more than one place, hasspecifically denied the execution and attestation of Ex.B2 https://hcservices.ecourts.gov.in/hcservices/ document. Learned counsel for the appellant submitted that therespondents/plaintiffs had admitted the execution of the document in4(a) of the amended plaint. A complete reading of the plaint willonly show that the respondents/plaintiffs have denied the executionof the document. The appellant's contention is that once therespondents/plaintiffs admitted the execution of the document andpleaded undue influence, the burden is on the respondents/plaintiffsto prove the plea of undue influence. As stated earlier, a readingof para 4(a) of the plaint will only show that therespondents/plaintiffs had denied the execution of Ex.B2 document.Once the respondents/plaintiffs denied the execution of the document,the burden is on the appellant/2nd defendant to prove the executionand attestation of Ex.B2. Further, if the respondents/plaintiffs hadadmitted the execution of B2 document, in that case, therespondents/plaintiffs would not have filed the suit for partition.Only because he denied the execution of Ex.B2 document, he filed thesuit for partition.24. Section 123 of the Transfer of Property Act says thatin the case of gift of immovable property, the transfer must beeffected by a registered instrument signed by or on behalf of thedonor and attested by atleast two witnesses. 25. Section 68 of the Indian Evidence Act says that if adocument is required by law to be attested, it shall not be used asevidence until atleast one attesting witness has been called forthe purpose of proving its execution, if there be an attestingwitness alive, and subject to the process of the court and capable ofgiving evidence. The appellant/2nd defendant did not examine theattestors of Ex.B2. The scribe of Ex.B2 was examined as D.W.2 andD.W.3 is the identifying witness. According to D.W.1, the seconddefendant, two witnesses namely, Ramaiah and Anjappa signed theEx.B2 document as attestors. The said Ramiah is the father-in-lawof the appellant/2nd defendant. D.W.1 in his cross examination alsoadmitted that his father-in-law Ramaiah and himself are in goodterms. Further, he also deposed that he does not know whether theother attestor Anjappa is residing at Hosur. Therefore, evenaccording to the appellant/2nd defendant atleast one attestor,namely Ramaiah was available at the time of trial. But, theappellant chose not to examine the said attestor. Therefore, itcannot be stated that attestors were not available at the time oftrial to prove Ex.B2 document. Instead of examining the attestors,the appellant had examined the scribe and identifying witness. 26. As decided in the above referred judgments, theevidence of D.W.2 and D.W.3 could not disclose statutory https://hcservices.ecourts.gov.in/hcservices/ requirements. There are two significant requirements of term"attest" namely, that the attestor should witness the execution whichimplies his presence then and secondly, that he should certify orvouch for the execution by subscribing his name as a witness whichimplies a consciousness and an intention to attest. Therefore,when the attestors are available for examination, by examining thescribe and identifying witness, the appellant/2nd defendant cannotprove Ex.B2 document. In case the atttestors are not alive, thenthe appellant/2nd defendant could have proved the will by examiningthe scribe and identifying witness. Here, it is not a case so.Therefore, only adverse inference can be drawn against appellant/2nddefendant for the non-examination of the attestor, who was very muchavailable at the time of trial. 27. Further, this court in S.A.No.1291/1996 found thatEx.B2 document is a gift deed and this court remanded the matter tothe trial court to give an opportunity to the parties to prove Ex.B2in accordance with law. Since this court on the earlier occasionfound that Ex.B2 is a gift deed, the document has to be executed andattested under section 68 of the Indian evidence Act. As alreadyfound the appellant/2nd defendant failed to prove Ex.B2 document byexamining the attesting witnesses. 28. Therefore, since the appellant/2nd defendant failed toprove Ex.B2 document, there is no necessity for going into the pleaof undue influence. So far as item No.4 of the suit property isconcerned, Goopali Muniamma herself sold the property to the 3rddefendant's husband Ramaiah. But the said document was not markedbefore the trial court. However, the respondents/plaintiffs haveadmitted the sale in favour of the said Ramaiah. Therefore, thecourts below rightly refused to grant preliminary decree i n respectof item 4 of the suit property.29. With regard to the construction of shops and house inS.No.121A/1A, the appellant/2nd defendant failed to prove the same byany acceptable evidence. The courts below rejected the contention ofthe appellant/2nd defendant.30. The trial court passed preliminary decree in respect ofitem Nos. 1 to 3 and 5 of the suit properties. The trial courtrefused to grant preliminary decree in respect of item No.4. Thelower appellant court also confirmed the judgment decree of the trialcourt. https://hcservices.ecourts.gov.in/hcservices/

31. Therefore, on a careful consideration of the materialsavailable on record and the submissions made by the learned counselfor the appellant and the respondents and also by applying theprinciples laid down in the judgments referred above, I am of theview that the concurrent findings of the courts below does notwarrant any interference. I find no ground much less substantialquestion of law to interfere with the findings of the courts below.The above second appeal is liable to be dismissed. Accordingly, theSecond Appeal is dismissed. No costs. Sd/Asst.RegistrarDated : 11.07.2009Corrected as per order dated 04.08.2009and made in Sa.No.617/2000Sd/-Asst. RegistrarDated : 10.08.2009/true copy/Sub Asst.RegistrarrjTo1.The Sub Judge, Hosur.| To be substitute to the order2.The District Munsif Court, Hosur.|already despatched in 31.07.2009.•+ 1 cc to Mr. V. Raghavachari, Advocate (SR 29345)•+ 1 cc to Mr. V.R. AnnaGandhi, Advocate SR 29215. S.A. No.617 of 2000KS (CO)EU 20.7.2009.