Thayammal v. Ponnusamy

and subsequently it was leased out to D2. D1 was a bachelor. Thesaid Thangammal executed a registered 'Will' dated 17.10.1989 infavour of Thyammal, who happened to be the daughter-in-law of theplaintiff's husband's brother-Chinnakuttimooppan.(c) Thangammal died on 8.2.1990, whereupon her 'Will" came intoforce. D2 as a tenant of the suit property, continued to pay therents to the plaintiff. He wanted to purchase the suit propertyfrom the plaintiff, but the negotiation did not fructify. However,D2 somehow or other managed to get a registered sale Deed dated16.9.1992 from D1 relating to the suit property. Such a sale is notbinding on the plaintiff. Hence, the suit.3. Per contra, gain saying and challenging the allegations andaverments in the plaint, D2 filed the written statement with variousaverments. The pith and marrow of them would run thus:-Chinnamooppan did not purchase, as per the sale Deed dated21.5.1965, an extent of 12 cents of vacant land from out of his ownfunds and he did not raise houses thereon from his own source ascontended in the plaint. However, Thangammal constructed two tiledhouses and she had been leasing out the same to various persons andlater it was leased out to D2. The 'Will' dated 17.10.1989purported to have been executed by Thayammal in favour of theplaintiff, is false. The plaintiff is not related to Thangammal,who died interstate. D2 is a bona fide purchaser for valuableconsideration of the suit property from D1. Mutation was effectedin the Revenue records in the name of D2 and he has been paying taxfor the suit property. Accordingly, he prayed for the dismissal ofthe suit.4. The trial Court framed the relevant issues. During thetrial, the plaintiff examined herself as PW1 apart from examiningone Kannian as P.W.2 and Venkatachalam as P.W.3 and marked fourdocuments, namely, Ex.P1 to P.4 on her side. On the defendants'side, the second defendant examined himself as DW1 and alsoexhibited three documents, namely, Ex.D1 to D3. D1 remained ex-partebefore the trial Court. 5. Ultimately, the trial Court dismissed the suit. Beingaggrieved by and dissatisfied with the judgement and decree of thetrial Court in dismissing the suit, the plaintiff filed the presentappeal on various grounds, the warp and woof of them would runthus:-The judgement and decree of the trial Court is against law andweight of evidence. The trial Court was wrong in rejecting theevidence, which proved the due execution of the 'Will'. The trialCourt should not have disbelieved the evidence of P.W.3 merely basedon certain defects in his deposition. The approach of the trial https://hcservices.ecourts.gov.in/hcservices/ Court in analysing the evidence relating to the 'Will' was notcorrect. The evidence on record evinced and established that thedefendants, after knowing the 'Will' executed by Thangammal infavour of Thayammal, purchased the suit property, but the trialCourt simply ignored such an evidence. The evidence of P.W.2 wasbeyond doubt and based on that the trial Court should have upheldthe validity of the 'Will'. Accordingly, the plaintiff prayed forsetting aside the judgement and decree of the trial Court and fordecreeing the original suit in toto.6. The points for consideration are as under: (i) Whether the plaintiff, being the propounder ofthe 'Will'-Ex.A3 dated 17.10.1989, proved the dueexecution by Thangammal?(ii) Whether there is any infirmity in thejudgement and decree of the trial Court? 7. The parties are referred to hereunder according to theirlitigative status before the trial Court.Point No.(i): The learned counsel for the plaintiff wouldadvance his argument to the effect that even though clinchingevidence was available on record in establishing the genuineness ofthe 'Will'-Ex.A3, nonetheless the trial Court failed to uphold thevalidity of the 'Will'. Whereas, the learned counsel for D2 wouldcontend that the 'Will' was not proved and in fact, P.W.3 was not atall the scribe of the Will-Ex.A3, even then, he claimed to be thescribe and thereby exposed himself.8. In this case, Ex.A3-the Will and the evidence adduced toprove Ex.A3 deserve deep scrutiny. P.W.3-Venkatachalam, who wasexamined on the side of the plaintiff, as though he happened to bethe scribe, deposed before the trial Court candidly admitting thathis document writer's licence number was not 1833 but it belongs tosomebody else. No doubt during Chief- examination, he claimed thesaid licence number as his licence number. 9. A perusal of Ex.A3-the original 'Will' would demonstrate thefact that it was scribed by one other person having licence numberNo.B1833 and not by Venkatachalam-P.W.3. Even in the Will-Ex.A3,the signature of the scribe starts with the initial 'K', whereasP.W.3's initial is 'N'. It is therefore crystal clear that P.W.3 isnot the scribe of the Will-Ex.A3.10. In view of the aforesaid finding that P.W.3 did not scribethe Will, the core question arises as to whether the claim of theplaintiff, based on the Will, should be completely discarded. https://hcservices.ecourts.gov.in/hcservices/

11. I am of the opinion that simply because a scribe wasexamined as a witness, who turned out to be not the originalscribe, but a different person, the entire case of the plaintiffcannot be thrown away as false. The plaintiff could have taken careto see that the appropriate person, whose name is found in the Willas scribe, was examined before the trial Court. 12. No doubt it is common knowledge that some of the scribesused to have their own surrogates and assistants to write on theirbehalf, but the scribes' licence number would be used forregistration purpose. The reality might be even that P.W.3 mighthave scribed the Will and in view of the fact that he does not havethe licence, he might have borrowed the assistance of the licenceholder for registration. No doubt all these things have not beenfound detailed and delineated during the trial on the side of theplaintiff. Hence, I am of the considered opinion that the evidenceof P.W.3 should not be taken into consideration for assessing as towhether the Will is a genuine one or not. But one fact is clearthat simply because there is discrepancies in the scribe's name andin the deposition of P.W.3, the Court cannot jump to the conclusionthat P.W.3 is a false witness who committed perjury before the Courtat the instance of the plaintiff. 13. Now the question arises as to whether Ex.A3 Will was provedin accordance with Section 63-C of the Indian Succession Act andSection 68 of the Indian Evidence Act. In this connection, I wouldlike to refer to the following decision of the Honourable Apex Courtreported in 2006(2)LW 658 SC [Pentakota Satyanarayana & others vs.Pentakota Seetharatnam & others]. An excerpt from it would runthus:"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, sufficientattestation within the meaning of the Act. Theendorsement by the sub-registrar that the executanthas acknowledged before him execution did also amountto attestation. In the original document theexecutants signature was taken by the sub-registrar.The signature and thumb impression of the identifyingwitnesses were also taken in the document. After allthis, the sub-registrar signed the deed. Unlike otherdocuments the Will speaks from the death of thetestator and so, when it is propounded or producedbefore a court, the testator who has already departedthe world cannot say whether it is his Will or not andthis aspect naturally introduces an element of https://hcservices.ecourts.gov.in/hcservices/ solemnity in the decision of the question as towhether the document propounded is proved to be thelast Will and the testament of departed testator.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 stateof mind, that he understood the nature and effect ofthe dispositions and put his signature to the documenton his own freewill. In other words, the onus of thepropounder can be taken to be discharged on proof ofthe essential facts indicated above. It was argued bylearned counsel for the respondent that popoundersthemselves took a prominent part in the execution ofthe Will which will confer on them substantialbenefits. In the instant case, propounders who wererequired to remove the said suspicion have let inclear and satisfactory evidence. In the instant case,there was unequivocal admission of the Will in thewritten statement filed by P.Srirammurthy. In hiswritten statement, he has specifically averred that hehad executed the Will and also described theappellants as his sons and Alla Kantamma as his wifeas the admission was found in the pleadings. The caseof the appellants cannot be thrown out. As alreadynoticed, the first defendant has specifically pleadedthat he had executed a Will in the year 1980 and suchadmissions cannot be easily brushed aside. However,the testator could not be examined as he was not aliveat the time of trial. All the witnesses deposed thatthey had signed as identifying witnesses and that thetestator was in sound disposition of mind. Thus, inour opinion, the appellants have discharged theirburden and established that the Will in question wasexecuted by Srirammurthy and Ex.B9 was his last will.It is true that registration of the Will does notdispense with the need of proving, execution andattestation of a document which is required by law tobe proved in the manner as provided in Section 68 ofthe Evidence Act. The Registrar has made thefollowing particulars on Ex.B9 which was admitted toregistration, namely, the date, hour and place ofpresentation of document for registration, thesignature of the person admitting the execution of theWill and the signature of the identifying witnesses.The document also contains the signatures of theattesting witnesses and the scribe. Such particularsare required to be endorsed by the Registrar along https://hcservices.ecourts.gov.in/hcservices/ with his signature and date of document. Apresumption by a reference to Section 114 of theEvidence Act shall arise to the effect thatparticulars contained in the endorsement ofregistration were regularly and duly performed and arecorrectly recorded. In our opinion, the burden ofproof to prove the Will has been duly andsatisfactorily discharged by the appellants. The onusis discharged by the propounder adducing prima facieevidence proving the competence of the testator andexecution of the Will in the manner contemplated bylaw. In such circumstances, the onus shift to thecontestant opposing the Will to bring material onrecord meeting such prima facie case in which eventthe onus shift back on the propounder to satisfy thecourt affirmatively that the testator did know wellthe contents of the Will and in sound disposingcapacity executed the same.27. It is settled by a catena of decisions thatany and every circumstance is not a suspiciouscircumstance. Even in a case where activeparticipation and execution of the Will by thepropounders/beneficiaries was there, it has been heldthat that by itself is not sufficient to create anydoubt either about the testamentary capacity or thegenuineness of the Will. It has been held that themere presence of the beneficiary at the time ofexecution would not prove that the beneficiary hadtaken 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 capacityand the proof of signature of the testator as requiredby law not be sufficient to discharge the onus. Incase, the person attesting the Will alleges undueinfluence, fraud or coercion, the onus will be on himto prove the same and that as to what suspiciouscircumstances which have to be judged in the facts andcircumstances of each particular 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 countenance https://hcservices.ecourts.gov.in/hcservices/ the said submission. The circumstances of deprivingthe natural heirs should not raise any suspicionbecause the whole idea behind the execution of theWill is to be interfered in the normal line ofsuccession and so natural heirs would be debarred inevery case of the Will. It may be that in some casesthey are fully debarred and some cases partly. Thisis the view taken by this Court in Uma Devi Nambiarand Others vs. T.C.Sidhan (Dead) (2004) 2 SCC 321 =2004-2-L.W.852.14. Here virtually the defendant tried to make a mountain outof a molehill by trying to point out the contradictions relating toallied matters in respect of the execution of the Will. Here, it isobvious that the time gap is more than five years. Hence theratiocination as set out in paragraph No.31 of the Hon'ble ApexCourt's judgment can readily be relied on for rejecting thecontention on the plaintiff's side, based on those contradictionsin the evidence of the witnesses. The cited Apex Court's precedentfurther reads thus:"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.5was asked to attest. D.W.6 also speaks about theexecution and attestation. The trial Court has mademuch about the draft Will aspect. This is hardly asuspicious circumstance. D.W.6 says that 4 malepersons accompanied D1. This is hardly a suspiciouscircumstance. D.W.5 also states that there was anotherperson whom he would not identify. The deposition wasgiven in 1997 (i.e. 17 years after the registration ofWill) and the courts below ought not to have made amountain out of a molehill and on that basis reject aduly executed registered Will."15. There are various other decisions infra relating to thequantum of proof required relating to proving of the Will, whichare as under:(i) 2005(1) SCC 40 [Daulat Ram and other vs. Sodha andothers](ii)2005(1) SCC 280 [Meenakshiammal (Dead)through LRs. and others vs. Chandrasekaran and another] https://hcservices.ecourts.gov.in/hcservices/ (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](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]16. Among the aforesaid decisions, one of the decisionsreported in 2001(3)CTC 283 [Corra Vedachalam Chetty and another vs.G.Jankiraman) is on the point that the Court while analysing theWill is acting as a Court of conscience. An excerpt from the abovesaid 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 https://hcservices.ecourts.gov.in/hcservices/ this context, the conduct of the persons who raise thealleged ground for suspision is also to be looked at, toknow as to how credible are the grounds for suspisionssought to be raised by such persons. In this case, thesuspicion is sought to be raised by a person who iskeenly interested in making the Will ineffective andwhose conduct is far from one which would inspireconfidence in truthfulness of his statements."17. As such, the above precedent would also illustrate andexemplify that the Court should not attach undue importance toimaginary suspicions. All these aforesaid decisions are on thepoint that the Court should not at the time of analysing thevalidity of the Will proceed on the proposition that the Will is aninvalid one.18. A perusal of the above verdicts would clearly highlightthat examination of even one attesting witness to the Will would besufficient to prove the Will, provided he could speak about the dueexecution of the Will, and the attestation of the Will by himselfand one of the witnesses along with him in the presence of thetestator. 19. Keeping in view the dictum of the above said decision, Iwould like to analyse the evidence of P.W.2-Kanniah, Son ofThirumalaisamy, one of the attesting witnesses, who would candidlyand categorically depose, without any embellishment, that hewitnessed the testatrix, namely, Thangammal, signing the Will andone other witness, namely, Palanisamy attesting the Will along withP.W.2 himself in the presence of the testatrix. No doubt, P.W.2would depose that the testatrix Thamgammal was taken in a car forthe purpose of getting the Will registered and he would also statethat the scribe himself came to Thangammal's house for scribing theWill earlier. However, P.W.3, would speak to the effect that it wasThangammal, who came to him for getting the Will scribed and thatthey all went in a bus for getting the Will registered. 20. My mind is redolent with the same set of decisions citedsupra, which would highlight that due allowance should be given forlapse of memory on the part of the witnesses, who speak about theexecution of the Will, in this case, Ex.A3-Will is dated 17.10.1989,whereas P.W.2 was examined before the Court on 18.1.1995 and P.W.3was examined on 22.1.1995 so as to say more than five years afterthe emergence of the Will. I would like to highlight that if thereis a doubt about the very execution of the Will by the testator,from the way in which the witnesses deposed, then the matter wouldbe different. But on the other hand the contradictions relating toallied matters, such as who came first and who came next at the timeof emergence of the Will and also about the mode of transport used https://hcservices.ecourts.gov.in/hcservices/ for going to the Registrar's office are not significant and if undueimportance is given to such contradictions relating to narration ofthose allied facts, then it would amount to throwing the baby alongwith the bath water. At this juncture, the following maxim isextracted here under for ready reference:Omnia Presumuntur rite esse acta (A prima facie presumption ofthis regularity of the acts of public officials exists until thecontrary appears).21. It is a trite proposition of law that preponderance ofprobabilities would govern the adjudication in civil cases.Indubitably and incontrovertibly, Thangammal-the testatrix had noissues and as per the evidence available on record, it is clear thatshe was looked after by the plaintiff, the relative of her. In sucha case, it is no wonder that Thangammal might, in all probabilities,have executed the Will in favour of Thayammal. D.W.1 in hisdeposition would candidly and categorically depose that Thangammalhad no issues and he was paying rents to Thangammal during her lifetime. However, he would claim that after the death of Thangammal,he gave the rents to Ponnusamy-D1, for which, there is no evidence.It is therefore clear that D2 entered the suit property recognisingThangammal as the owner and paid rents also to her. 22. Thangammal, being the owner of the suit property, by virtueof Ex.P.2-Settlement deed, dated 10.12.1973, executed by her fatherin her favour, enjoyed it by leasing it out to various persons,including D2 and executed Ex.A3-Will. Accordingly, this point isdecided to the effect that the plaintiff proved that Thangammalexecuted Ex.A3-Will in favour of the plaintiff, voluntarily.23. The learned counsel for D2 would develop his argument tothe effect that D2 is a bona fide purchaser for valuableconsideration without notice of the Will. He also contended thatthe plaintiff's husband Palanisamy was one of the attestingwitnesses and in such a case, the Will has to be looked askance at;even in the encumbrance certificate, which he obtained, there was noreference to the Will. The Will was executed on 17.10.1989 and itis a registered Will. Thangammal died on 8.1.1990. Whereas, Ex.A4-Sale Deed dated 16.9.1992 executed by D1 in favour of D2 relating tothe suit property emerged long after the Will and the death of thetestatrix Thangammal. It is not as though D2 was a stranger toThangammal, as he admittedly the lessee under her in the suitproperty. Even during the life time of Thangammal, he was payingrents to her and it would be a farfetched thinking that D2 might nothave known about the Will. In this factual matrix, it has becomeall the more important for such lessee D2, to ascertain as to whostepped into the steps of his land lady after her death. Even for https://hcservices.ecourts.gov.in/hcservices/ argument sake it is taken that he was not aware of the Will, yetthat would not in any way change the legal position. Simply becauseD2 claims to be a bona fide purchaser for valuable consideration,without notice of the Will, he cannot claim right over the suitproperty on the strength of Ex.A4, which was executed by D1, who wasnot the owner of the suit property. 24. There is no hard and fast Rule that if the beneficiary'shusband is one of the attesting witnesses, the entire Will should bedoubted. It is not the case of D2 that the plaintiff's husband-Palanisamy, the another attesting witness to the Will, played asignificant and vital role in coercing or bamboozling the testatrixto execute such a Will. 25. In the case of agreement to sale, if a 3rd party claims thathe is a bona fide purchaser for valuable consideration withoutnotice of the agreement to sale, then he could protect his interest.But in the case of this nature, the plea that D2 is a bona fidepurchaser, without having knowledge about the Will, is having nolegs to stand and as such, this vital distinction which has beenhighlighted supra, was not taken into account before advancing theargument on behalf of D2 that he is a bona fide purchaser withoutnotice of the Will.26. The learned counsel for D2 would correctly and convincinglyhighlight that in the office of the Registrar of documents, whileissuing encumbrance certificates, they do not incorporate in itabout the existence of registered Wills relating to the propertiesconcerned. He would also highlight that there are differentregisters for maintaining the documents. Section 51 of theRegistration Act is re-produced here under for ready reference."51.Register-books to be kept in the several offices-(1) The following books shall be kept in the severaloffices hereinafter named, namely,-A-In all registration offices-Book 1, "Register of non-testamentary documentsrelating to immovable property";Book 2, "Record of reasons for refusal to register";Book 3, "Register of wills and authorities to adopt";andBook 4, "Miscellaneous Register";B-In the Offices of Registrars-Book 5, "Register of deposits of wills".(2) In Book 1 shall be entered or filed all documents https://hcservices.ecourts.gov.in/hcservices/ or memoranda registered under Sections 17, 18 and 89which relate to immovable property, and are not wills.(3) In Book 4 shall be entered all documents registeredunder clauses (d) and (f) of Section 18 which do notrelate to immovable property.(4) Nothing in this section shall be deemed to requiremore than one set of books where the office of theRegistrar has been amalgamated with the office of a SubRegistrar.. . . . . . . . . . ."27. It is therefore clear from the above that various registersare maintained by the Registrar office. But in the interest of thegeneral public, it is desirable on the part of the authoritiesconcerned to issue encumbrance certificate specifying the factum ofregistered Will existing relating to the suit property and then onlythe encumbrance certificate could be taken as a wholesome one,capable of conveying the information to the prospective bona fidepurchasers of immovable properties. Hence, I would stronglyrecommend that the Government as well as the authorities concernedshall think over it and issue necessary directions in this regard. 28. The Sub Court, without considering all these salientfeatures relating to the genuineness of the Will, had simply heldas though D2 is a bona fide purchaser and got effected mutation inhis name in the records. In fact, in Paragraphs 6 and 7 of itsjudgement, the Sub Court, by making a mountain out of a molehill,accepted the contradictions concerning allied matters and not theevidence relating to the actual execution of the Will andattestation. In these circumstances, point No.1 is answered to theeffect that the plaintiff, being the propounder of the Will provedthe due execution of the Will and the attestation. 29. Point No.2. In view of the ratiocination as found set outabove, the judgement and decree dated 31.1.1995 made in O.S.No.265of 1993 is set aside and the original suit is decreed as prayed for.However, in the facts and circumstances of the case, there is noorder as to costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarMsk https://hcservices.ecourts.gov.in/hcservices/ To1. THE PRINCIPLE SUBORDINATEJUDGE, ERODE.2. THE CHIEF SECRETARYGOVT.OF TAMILNADU,FORT ST. GEORGE, CHENAI 9.3. THE SECRETARY TO GOVT.GOVERNMENT OF TAMIL NADU,HOME DAPERTMENT ,FORT ST.GEORGE, CHENNAI 9.4. THE SECRETARY TO GOVERNMENT,GOVERNMENT OF TAMIL NADU,COMMERCIAL TAX AND RELIGIOUSENDOWMENTS DEPT.,FORT ST.GEORGE, MADRAS 9.5. THE SECRETARY TO GOVERNMENTGOVT. OF TAMIL NADU, LAW DEPARTMENT ,FORT ST.GEORGE,MADRAS 96. THE INSPECTOR GENERAL OFREGISTRATION, CHENNAI-1.7. THE SECTION OFFICER,VR SECTION HIGH COURT, MADRAS.TEJ(CO)km/13.8. A.S.No.723 of 1995