Appavu Mudaliar v. Manickkammal

(i) The plaintiffs are the daughters and the defendants1 and 2 are the sons of one Ponnaiah Mudaliar and Unnamalai Ammalboth deceased. Both of them died intestate, the mother on 20-05-1978 and the father on 23-08-1979. The third defendant is the sonof the first defendant. The eighth defendant is the sister of thethird defendanint and daughter of the first defendant. There wasa registered partition deed where the properties held by PonnaiahMudaliar was divided amongst him, his wife and the defendants 1and 2. The properties allotted to Ponnaiah Mudaliar are the ASchedule properties. The properties allotted to his wifeUnnamalai Ammal are the B Schedule properties. The propertiesallotted to defendants 1 and 2 are C and D Schedule properties. ESchedule properties were kept in common between the defendants 1and 2 who were directed to maintain the first wife of the firstdefendant out of the income. The parents were living with theirsons namely defendants 1 and 2. Ponnaiah Mudaliar was running arice mill, which was earning a good income. Part of the propertyin C Schedule was sold by defendants 1 and 2 to the fourthdefendant and therefore, he was made a party to the suit by way ofamendment pleading that the sale was not binding on theappellant. The fifth defendant was one of the tenant andtherefore, is made a party to the suit. Sixth and seventhdefendant are made parties likewise. In view of the contention ofthe first defendant that Unnamalai Ammal has executed a Will infavour of eighth defendant, the daughter of the first defendant ofwhom the B Schedule items 7 to 10 were bequeathed was also made aparty to the suit by way of amendment. Since the defendants didnot agree to divide the property, after the death of the parents,the suit had to be filed. (ii) The first defendant filed the written statement inwhich he admitted the relationship but had denied that theappellants had died intestate. It was specifically pleaded thatthe father had executed a Will on 05-02-1979 bequeathing all theproperties including the rice mill to defendants 1 and 2. The Willwas duly proclaimed during the funeral ceremonies and thebeneficiaries had also taken possession of the properties as perthe Will. It was also pleaded that by a settlement deed dated 17-08-1977 his mother had settled the plaint. Item Nos.1 to 6 of BSchedule property to D3 his son, which was accepted by him. Healso pleaded that suit item Nos.7 to 10 of B Schedule werebequeathed by Unnamalai Ammal to her daughter Rajakumari under theWill dated 20-02-1978 which was also duly executed and attested.It was pleaded that Unnamalai Ammal executed the two documentsvoluntarily and she had some reason for bequeathing and settingproperties as she did. Therefore, according to the firstdefendant, the suit had to be dismissed. (iii) The defendants 2 and 3 filed aseparate written statement. They too pleaded that PonnaiahMudaliar did not die intestate. He had executed a Will on 05-02- https://hcservices.ecourts.gov.in/hcservices/ 1979 which was attested and had excluded his daughters andtherefore, the plaintiffs had no share in the A Schedule property.In his written statement too, there was reference to thesettlement dated 17-08-1977 and the Will dated 20-02-1978. (iv) Before the Trial Court, the plaintiffs marked 12documents, the defendants marked 28 documents. The Commissioner'sreport was marked as Ex-C1. The second plaintiff examined herselfas P.W.1, the Advocate Commissioner as P.W.2 and the handwritingexpert P.W.3. On the side of the defendants, the second defendantwas examined as D.W.1; the third defendant as D.W.2; D.W.3 is theattestor to Ex-B5 Will. D.W.4 is the scribe of Ex-B6; D.W.5 isanother handwriting expert; D.W.6 is a vakil's clerk. The TrialCourt dismissed the suit for partition holding that Ex-B4settlement deed and Ex-B5 Will both by Unnamalai Ammal and Ex-B6,the Will of Ponnaiah Mudaliar had been duly proved. (v) Therefore, the plaintiffs filed A.S.No.272 of1989. The appeal was allowed on the ground that there aresuspicious circumstances in the execution of Exs-B4 to B6. Thelearned Single Judge did not take into account the evidence ofeither P.W.3 or D.W.5, the fingerprint experts not being impressedwith their statements, but, however, held that the suspiciouscircumstances had not been properly explained by the evidence. Aggrieved by this, the present appeal has been filed. 2. Mr. R. Subramanian, learned SeniorCounsel for the appellant submitted that there are clear recitalsin the documents Exs.B-4, 5 and 6 explaining as to why thedaughters were not given anything. He submitted that as far as thesettlement deed is concerned, it is registered and unless theexecutants of the said deed repudiate it, it must be held to beproved. He also submitted that though the scribe Rajagopal has notbeen examined, D.W.1, the attesting witness, has spoken of theexecution and registration. He submitted that as regards Ex.B-5,D.W.1 is the scribe and D.Ws.2 and 3 are the attesting witnesses.They have spoken of its due execution and attestation and also thefact that the Will was read out to the testatrix. He submittedthat the beneficiary under the Will is neither D.W.1 nor D.W.2,but one Rajakumari, who is the daughter of D.W.1's brother. Hesubmitted that D.W.3 is a stranger and there is no reason why hisevidence must be suspected. Except for a suggestion that D.W.3and his father are the henchmen of the defendants, there isnothing in the evidence of D.W.3 that merits suspicion. Thelearned counsel submitted that there is evidence to show that theWill was read out to Unnamalai Ammal. According to the learnedcounsel, the Will was proved to have been executed by UnnamalaiAmmal in a sound and disposing state of mind. Next is Ex.B-6, theWill of Ponnaiah. The learned counsel submitted that there were asmany as four attesting witnesses and D.W.3, the son of theattesting witnesses, had identified his father’s signature. So,according to the learned counsel, since the attestation of onewitness was proved, this Will was also duly proved. https://hcservices.ecourts.gov.in/hcservices/

3. The learned counsel for the respondentssubmitted that the learned Single judge had considered theevidence of the defendant’s witnesses and it is only because ofthe contradictions in the evidence that the Wills and thesettlement deed were disbelieved. The learned counsel submittedthat unless the conclusions in the appellate judgment were totallyunacceptable, this Court should not interfere. 4. Here, we have three documents on the basis of whichthe appellants claim that the respondents are not entitled to anyright in the properties. They are Ex.B-6 the Will of Ponnaiah andExs.B-4 and 5, the settlement deed and Will of Unnamalai Ammalrespectively. The rights of the appellant will depend on theacceptability and proof of these documents.5. (i) Section 63 of the Indian SuccessionAct reads as follows:“Every testator, not being a soldier employed in a expedition orengaged in actual warfare [or an airman so employed or engaged,]or a mariner at sea, shall execute his Will according to thefollowing rules:--(a) The testator shall sign or shallaffix his mark to the Will, or it shall be signed by some otherperson in his presence and by his direction.(b) The signature or mark of thetestator, or the signature of the person signing for him, shall beso placed that it shall appear that it was intended thereby togive effect to the writing as a Will.(c) The Will shall be attested by two ormore witnesses, each of whom has seen the testator sign or affixhis mark to the Will or has been some other person sign the Will,in the presence and by the direction of the testator, or hasreceived from the testator a personal acknowledgement of hissignature or mark, or of the signature of such other person; andeach of the witnesses shall sign the Will in the presence of thetestator, but it shall not be necessary that more than one witnessbe present at the same time, and no particular form of attestationshall be necessary.”(ii) Section 68 of the Indian Evidence Act, 1872 reads as follows: “68. Proof of execution of document required by law to beattested.—If a document is required by law to be attested, itshall not be used as evidence until one attesting witness at leasthas been called for the purpose of proving its execution, if therebe an attesting witness alive, and subject to the process of theCourt and capable of giving evidence:Provided that it shall not be necessary to call an attestingwitness in proof of the execution of any document, not being awill, which has been registered in accordance with the provisions https://hcservices.ecourts.gov.in/hcservices/ of the Indian Registration Act, 1908, (XVI of 1908) unless itsexecution by the person by whom it purports to have been executedis specifically denied.”6. We will examine the pleadings and evidence of the threedisputed documents with regard to Evidence Act:(i) Pleadings : The plaintiffs have not pleaded that the Wills are nottrue or that they have been executed as a result of fraud,coercion, undue influence, or that the testator/ testatrix werenot aware of the contents of the Wills they have allegedlyexecuted. Even after the written statements were filed, they havenot filed any additional pleadings. This may not seriously affecttheir case, since it is the defendants who are burdened with theduty to prove the three documents to the satisfaction of theCourt. (ii) Plaintiff’s evidence : P.W.1 is the 2nd Plaintiff. In her evidence, she hasstated that her parents had not executed any Will. Her father andthe 1st defendant jointly managed the properties and that theylived together. She has further stated that her mother did notgive any property to Rajakumari, and that her mother used to signher name and that she was unwell for a year before her death. Itis not correct to say that during this period she used to affixher thumb impression. She has stated that she is not aware thather mother has settled the properties on the 3rd defendant. She hasstated that there is no enmity between the plaintiffs and thewitnesses to Ex.B-6. She is unable to say whether the signaturesin documents shown are her father’s signatures. So there is noattack by this witness on the Will or the settlement deed. P.W.2 is the Advocate Commissioner. According to him,he had taken a list of documents when he visited the suit propertyand some of the documents were blank papers with Ponnaiah’ssignature on them. P.W.3 is a Handwriting Expert, who has opined that thesignature of Ponnaiah in Ex.B-6 does not tally with his admittedsignature.Therefore, the pleadings and the evidence of the plaintiffs mayaffect the credibility of the Will, Ex.B-6 and nothing else.7. But we cannot forget that the defendants are boundto prove the three documents and we will see if they havedischarged their burden.8. Ex.B-6 is the Will of Ponnaiah. Not less than fourwitnesses have attested the said Will. They are Venu Naidu,Chandrasekharan, M. Samikkannu and Perumal. D.W. 4, Kuppuswami isan acquaintance of both the plaintiffs and the defendants. He is https://hcservices.ecourts.gov.in/hcservices/ the scribe of Ex.B-6. He has stated that except for Perumal, allthe other witnesses are alive. P.W.2, Dhanusu is Perumal’s son. Hehas identified his father’s signature. On the basis of this, theTrial Court held that the Will was proved. This was rightly setaside in appeal. Section 68 of the Indian Evidence Act requiresthat at least one witness has to be called upon to speak of theattestation. Here, though admittedly three of the four witnessesare alive, none of them has given evidence. The evidence of thescribe will not be sufficient to prove the Will. If all theattesting witnesses had died, then the identification of thesignature of one of them may have been acceptable. But on thefacts of this case, we must confirm the finding that Ex.B-6 is notproved.9. Next we will take up the two documents said to havebeen executed by Unnamalai Ammal. The plaintiffs are herdaughters; defendants 1 and 2 are her sons; the beneficiariesunder Ex.B-6 are her sons; her grandson D-3, son of D-1 is thesettlee under Ex.B-4, and her granddaughter D-8 and daughter of D-1 is the beneficiary under the Will Ex.B-5; D-2, the brother of D-1, is D.W.1; and D-3 is D.W.2. I. Ex.B-5 is the Will. The Will is notregistered. It is dated 20.2.1978. D.W.1 (D-2) is the scribe. Hisevidence in chief is to the following effect :“My mother executed a Will on 20.2.1978. I wrote it. During thetime of execution of Exs.B-4 and 5, my mother put her thumbimpression. Previously, she would sign. But due to old age, shecould not sign. Dhanusu (D.W.3) and Govindasami (D.W.2) were thewitnesses. My mother said that what has already been given to theplaintiffs is sufficient. The Will relates to Schedule-IIproperties, Items 7 to 10. The witnesses and I saw her putting thethumb impression. My mother saw the attestation done by thewitnesses. After I wrote the Will, I read it out and she approvedit as correct...”.In cross-examination, he has stated as follows :”It is not correct to state that Ex.B-5 was brought about onlybecause some properties were left out in Ex.B-4. I wrote theWill….. Since it was in the evening(maalai) when the Will waswritten, it was not registered. My mother lived for three monthsafter the execution of the Will. It was executed in our house. Shewanted to give to her granddaughter the properties left out ofEx.B-4. She gave the details of the properties. I wrote it. It isnot correct to state that it is not her fingerprint or that shedid not execute the Will.” This is DW-1's cross-examination regarding Ex.B-5. Except for thesuggestions, there is nothing in the cross-examination to rejectwhat he has said in his chief. Now we will see if his examinationis in line with the evidence of D.Ws.2 and 3.In his chief-examination, D.W.2 states as follows : https://hcservices.ecourts.gov.in/hcservices/ ”Unnamalai is my grandmother. She executed a Will in 1978 infavour of Rajakumari, her granddaughter. This is Ex.B-5.Ratnamudaliar (D.W.1) is the scribe. Dhanusu (D.W.3) and I are thewitnesses. At that point of time, Unnamlai was in a sound anddisposing state of mind. She saw me attest the Will.“In his cross-examination, he states thus :”I am one of the witnesses of Ex.B-5. She died two months afterEx.B-5. She has affixed her thumb impression in that also. I donot know why it was not registered. It is not correct to statethat it was executed only because properties were left out of Ex-B4…. My uncle wrote Ex-B5. The other witness is Dhanusu. He isnot our henchman.” We are unable to see anything in his evidence, which discreditsthe evidence of D.W.1. In his chief-examination, D.W.3 states as follows :”I know Ponnaiah and Unnamalai Ammal. Unnamalai executed a Willin favour of Rajakumari. This was written in the 2nd month of1978. D-1 wrote the Will. D.W.2 and I are the witnesses. It waswritten at her place in Vanoor. It was Unnamalai who wanted theWill to be made. They read out the Will to me. It was written at2.00 pm. Unnamalai approved of it. I saw when she made her thumbimpression. She saw me attest the Will. It is not correct to statethe Will was fabricated. She was in a sound and state of mind atthat time.“In his cross-examination, D.W.3 states :”I do not know if Unnamalai Ammal could read and write. D-1 wroteEx.B-5. He is Rajakumari’s uncle. I do not know why it was notregistered. She was not continuously unwell. No draft was writtenfor this. With the sale deed, Unnamalai gave the details… I hadgone to her house to buy seedlings. At that time, D-2 wrote thedetails for the Will.” As far as the place of execution, all the threewitnesses agree. D.W.2 has said that D.W.1 is the scribe. D.W.3says that D-1 is the scribe in two places. But D.W.1 is actuallyD-2. But this is not a fatal error, because he says that thescribe is Rajakumari’s uncle. So he knows who exactly the scribeof Ex.B-5 is. As regards the attesting witnesses, both of themspeak of the attestation. D.W.1 and 3 say that the Will was readout and Unnamalai approved of it. All of them say that she was ina sound state of mind. So in all crucial aspects, the witnessesspeak identically. It is, no doubt, true that D-2 was very muchpresent and had in fact been the scribe. But he is not thebeneficiary. It is his niece Rajakumari who gets all theproperties. 10. We will compare the evidence of all the threewitnesses as follows to see if there are any contradictions: https://hcservices.ecourts.gov.in/hcservices/ Date of ExecutionD.W.1Chief20-02-1978(infavour ofgranddaughter)Cross--D.W.2ChiefIn 1978Cross--D.W.3Chief 2nd month of 1978Cross--Identity of ScribeD.W.1Chief--CrossAccepts that hehimself is thescribeD.W.2ChiefD.W.1Cross--D.W.3Chief D1(Though this iswrong it isevident thatD.W.3 knows whothe scribe isbecause it isRajakumari'suncle)Cross--Manner of Execution D.W.1ChiefThumb impression Cross--D.W.2Chief CrossThumb impressionD.W.3Chief Thumb impression Cross--AttestationD.W.1ChiefD.Ws.2 and 3 arethe AttestorsCross--D.W.2Chief"D.W.3 & I"Cross--D.W.3Chief "I & D.W."Cross--Place of Execution D.W.1Chief"Our house"Cross--D.W.2Chief--Cross-- https://hcservices.ecourts.gov.in/hcservices/ Date of ExecutionD.W.3Chief "At UnnamalaiAmmal's place inVanur"CrossGone to UnnamalaiAmmal house toget seedlings andat that time D2wrote the detailsfor the WillSubject of Ex-B4D.W.1ChiefSchedule IIItems7 to 10CrossProperties leftout of Ex-B4D.W.2Chief--CrossNot correct tostate that it wasexecuted becausethe propertieswere left out ofEx-B4D.W.3Chief Cross--Mental Condition of TestatrixD.W.1ChiefSound anddisposing stateof mindCross--D.W.2ChiefSound anddisposing stateof mindCross--D.W.3Chief Sound anddisposing stateof mindCross--Reason for Non-registrationD.W.1ChiefThe Will waswritten in theeveningCross--D.W.2ChiefDo not know thereason as to whyit was notregisteredCross-- https://hcservices.ecourts.gov.in/hcservices/ Date of ExecutionD.W.3Chief Execution of Will– 2:00pm. CrossDo not know thereason as to whyit was notregistered It is seen that all the three witnesses support each other. 11. The propounder must prove that the Will was notexecuted under any suspicious circumstances or that there was anyelement to vitiate the Will like fraud or coercion, etc. In thecross examination, there is not even a suggestion to this effect.The only question asked is, whether this was not brought about toinclude those properties which were left out of Ex.B-4. Whatmore can be proved regarding the due execution and attestation ofEx-B5 than what has been done. The witnesses say that theproperties subject matter of Ex-B5 are not the properties underEx-B4. But at the same time D.W.1 says Ex-B5 was not brought aboutonly so that the properties that had not been covered by Ex-B4 canbe roped in. As regards the identity of the properties there isno contradiction in the evidence of the witnesses. 12. D.W.3 is a third party, in the sense heis not related to the defendants. Of course, there is a suggestionthat he is their henchman, which is denied. Even if he wererelated, if his evidence is believable, we cannot reject him. Hispresence at that time is explained very naturally in his cross-examination when he says that he had gone there to get seedlings.It is true that the daughters have been disinherited, but a Willis executed only when the natural mode of devolution is intendedto be deviated from. A reason is found in the document itself forsuch a decision, and that is, they have been already wellprovided. When the witnesses have spoken about each aspect of theWill and explained the execution of the Will, the consciousapproval of the recitals by the testatrix and the attestation, wecannot reject it merely because we suspect something is amiss. II. Ex.B-4 : This is with regard to Suit Schedule-II propertiesItems 1 to 6. The settlement deed was in favour of D-3 (D.W.2). Chief examination of D.W.1 :“My mother executed a settlement deed in favour of D-3 in respectof Suit Schedule-II properties Items 1 to 6. Rajagopal is thescribe. Kandaswami Mudaliar and I signed as witnesses. It waswritten in Vanoor in our house. The Sub-Registrar came to ourhouse for registration. It was written as per the directions ofUnnamalai Ammal. The scribe Rajagopal is dead. Kandaswami isclose to 2nd plaintiff. The plaintiffs were aware of the executionof the Will and settlement deed. After my father died on the day https://hcservices.ecourts.gov.in/hcservices/ of the milk ceremony, we informed everyone about the Will.”Cross-examination of D.W.1 :"My mother knew to sign. In Ex-B4, she has affixed her thumbimpression. Because her eye-sight was poor, she has done so. Itis not correct to state that one year prior to her death she wasunwell and in coma. If she had signed she would overwrite theletters and that is why she herself said that she will affix herthumb impression. On no occasion and in no document had my motherput her signature after the execution of Ex-B4. I have signed inEx-B4 as a witness, the other witness Kandasamy is not a closerelative. He is related like an uncle. Ex-B4 was written in ourhouse. I, first defendant and our parents all lived in the samehouse, but there was separate mess. It is not correct to statethat I and DW.1 had the same residence or that we did not haveseparate mess and that I am saying so for the purpose of thiscase. I do not have a family and it is not correct to state that Iam only interested in the family of D.W.1. It is not correct tostate that the plaintiffs were on pleasant terms with my motherand there is no misunderstanding or that Ex-B4 was not written bymy mother and that it is not her thumb impression. There is aRegistrar's Office in Vanur. It is not correct to state that thethree furlong distance between our village and Vanur is goodroad. There is no bus facility. Car can go on the road. We dohave a van. When Ex-B4 was written my mother was healthy enoughto go the Registrar's Office. But it was at her instance that itwas registered by asking the Registrar to go to our residence. Wegave the applications in the Registrar's Office in the morning. Itwas registered at 3p.m. When the Sub-Registrar came to ourresidence it was during office hours. It was our mother whodecided to make an arrangement in respect of her share of theproperties. When the Sub-Registrar came to our residence it was3p.m. Even before he came, the document had been written. Mymother wrote only one Will. At the time of execution of Ex-B4there was no discussion about executing a Will. We gave anapplication to the Sub-Registrar to come to our residence. I donot remember what reason we gave. Our mother was treated atPondicherry, Ashoka Hospital, Sethu Hospital and Doctor Palani atDindivanam. It is not correct to state that my elder sisterManickammal took care of our mother. The plaintiffs knew about thesettlement deed. Our mother said that some arrangements should bemade regarding her properties and it should go to her grand son.Two days thereafter the settlement deed was executed. Two days'later it was registered. I brought Kandasamy Mudaliar to witnessthe settlement deed. My mother live for one and a half yearsafter Ex-B4. The arrangement was that the third defendant to takecare of my mother. My mother was with him. All the witnesses knewabout this arrangement. Rajagopalan is the scribe of thesettlement deed. Rajagopalan wrote the recitals after he was toldwhich properties should be given and to whom The details weregiven by my mother. It is not correct to state that Ex-B4 was https://hcservices.ecourts.gov.in/hcservices/ brought about in secrecy and it was not executed by UnnamalaiAmmal. "Chief Examination of D.W.2:"Unnamalai wrote a settlement deed in my favour, that is, Ex-B4.Rajagopalan wrote the document in Vanur. Ratnamudaliar andKandasamy Mudaliar were its witnesses. That is Unnamalai Ammal'sshare of property. After that, I am enjoying the property.Unnamalai Ammal has affixed the thumb impression in Ex-B4. Ex-B4belongs to me. "Cross-examination of D.W.2:"It is correct to state that Unnamalai Ammal can sign. But shehas only affixed her thumb impression in Ex-B4. It is not correctto state that before Ex-B4 she was unwell. It will only deal withthe properties that came to her in partition. No arrangement wasmade regarding the remaining properties at the time of Ex-B4. Ido not know the reason. It is not correct to state that UnnamalaiAmmal never executed Ex-B4. The witnesses in Ex-B4 are close toall the parties. D.W.2 is also one of the witnesses in Ex-B4. Itwas written in the evening. I do not remember the time."Here too, we find the evidence believable. 13. Next we will take up the decisions.(i) In 2004 (9) SCC 468(Krishna Mohan Kul Vs. PratimaMaity) a deed of settlement was said to have been executed by oneD. There was a fight between relatives. A suit for declarationand injunction was filed by his granddaughter through his son. Thewitnesses whose names appeared in the deed were not existing.Several witnesses were examined to show that the execution wasmore than hundred years at the time of execution. He wasparalytic and his mental and physical conditions were not inorder. The Trial Court disbelieved the plaintiff. The AppellateCourt also confirmed it. The High Court held that the executantwas an illiterate person and not in a proper mental and physicalstate. In that case, no witness was examined to prove theexecution by putting the thumb impression. The Supreme Court heldthat the High Court was right that the Courts below had wronglyplaced the onus of proof on the plaintiff. The Supreme Courtobserved that when fraud, misrepresentation or undue influence isalleged by a party in the suit normally the burden is on him toprove undue influence etc. But when a person is in an active,confidential or fiduciary relationship with another and thelatter is in a position of active confidence, he has to prove thatthere was fair play in the transaction and burden of proof to showthat the transaction is fair is thrown upon the dominant party.The Supreme Court also observed that the Court watches withjealousy so that the protector may not use his influence or theconfidence to his advantage. (ii) Similarly, in 1970 (3) SCC 159(LakshmiAmma Vs. Talengalanarayana Bhatta) under the settlement deednegligible provision was made for the wife and the settlor did not https://hcservices.ecourts.gov.in/hcservices/ give anything to his daughters or to his grandchildren and gavehis entire estate to only one grandson. There the wife of thesettlor gave evidence that the respondent who is the beneficiarythreatened the settlor grandfather to affix his thumb impressionand inspite of lengthy cross examination nothing is brought out toshow why this lady, the grandmother of the appellant would perjureherself and make a false statement. There the evidence show thatNarasimha Bhatta was in a state of senility. (iii) In 2002 (2) SCC 85(Madhukar D. ShendeVs. Tarabai Aba Shedage), the Trial Court had upheld the Will. (a) The Appellate Court summed up the suspiciouscircumstances as follows:`1. at the time of execution of the will, the late Bhagubai wasabout 80 years of age and there is complete absence of any medicalevidence to show the sound and disposing state of mind of theexecutant;2. the will was executed on 22-9-1963 and within two daysthereafter, on 24-9-1963, the executant expired;3. the Sub-Registrar went to the house of the executant forregistration of the will though his office was situated only halfa furlong away from the residence of the executant and no reasonhas been assigned why the executant could not have gone to theoffice of the Sub-Registrar if she was in a sound mental andphysical state;4. Chingubai, the plaintiff and beneficiary under the will, hasnot been examined. Vasant, son of Chingubai, examined in evidenceis not a witness to the execution of will;5. Mohammed and Narhari, the two attesting witnesses to the will,also examined in the court, were classmates of Vasant.(b) The Supreme Court set aside the judgment of theHigh Court and the following paragraphs are relevant:8. The requirement of proof of a will is the same as any otherdocument excepting that the evidence tendered in proof of a willshould additionally satisfy the requirement of Section 63 of theIndian Succession Act, 1925 and Section 68 of the Indian EvidenceAct, 1872. If after considering the matters before it, that is,the facts and circumstances as emanating from the materialavailable on record of a given case, the court either believesthat the will was duly executed by the testator or considers theexistence of such fact so probable that any prudent person ought,under the circumstances of that particular case, to act upon thesupposition that the will was duly executed by the testator, thenthe factum of execution of will shall be said to have been proved.The delicate structure of proof framed by a judicially trainedmind cannot stand on weak foundation nor survive any inherentdefects therein but at the same time ought not to be permitted tobe demolished by wayward pelting of stones of suspicion andsupposition by wayfarers and waylayers. What was told by BaronAlderson to the jury in R. v. Hodge(1838) 2 Lewis CC 227) may be https://hcservices.ecourts.gov.in/hcservices/ apposite to some extent:“The mind was apt to take a pleasure in adapting circumstances toone another and even in straining them a little, if need be, toforce them to form parts of one connected whole, and the moreingenuous the mind of the individual, the more likely was it,considering such matters, to overreach and mislead itself, tosupply some little link that is wanting, to take for granted somefact consistent with its previous theories and necessary to renderthem complete.”The conscience of the court has to be satisfied by the propounderof will adducing evidence so as to dispel any suspicions orunnatural circumstances attaching to a will provided that there issomething unnatural or suspicious about the will. The law ofevidence does not permit conjecture or suspicion having the placeof legal proof nor permit them to demolish a fact otherwise provedby legal and convincing evidence. Well-founded suspicion may be aground for closer scrutiny of evidence but suspicion alone cannotform the foundation of a judicial verdict — positive or negative.9. It is well settled that one who propounds a will must establishthe competence of the testator to make the will at the time whenit was executed. The onus is discharged by the propounder adducingprima facie evidence proving the competence of the testator andexecution of the will in the manner contemplated by law. Thecontestant opposing the will may bring material on record meetingsuch prima facie case in which event the onus would shift back onthe propounder to satisfy the court affirmatively that thetestator did know well the contents of the will and in sounddisposing capacity executed the same. The factors, such as thewill being a natural one or being registered or executed in suchcircumstances and ambience, as would leave no room for suspicion,assume significance. If there is nothing unnatural about thetransaction and the evidence adduced satisfies the requirement ofproving a will, the court would not return a finding of “notproved” merely on account of certain assumed suspicion orsupposition. Who are the persons propounding and supporting a willas against the person disputing the will and the pleadings of theparties would be relevant and of significance." (c) Paragraph No.10 of the above judgmentshows that there are no pleadings raising the question ofdisposing capacity of the testator except for a bare denial andthey held that there was nothing to show that the testator ismentally or physically incapacitated and the Supreme Court heldthat the Courts below had questioned the propriety of the Sub-Registrar having come to the testator's house for registering theWill and why she could not have gone to the office of theRegistrar if she was fit. The attesting witnesses were interestedbecause they were classmates of the beneficiary's son and becausethere was no medical evidence to show that the testator was in asound and disposing state of mind, the same has been suspectedthough there is no rule of law is required that a Doctor to be https://hcservices.ecourts.gov.in/hcservices/ present. The Courts-below have allowed their findings to beinfluenced by such suspicion and conjectures as have no foundationin the evidence and have no relevance in the facts andcircumstances of the case and unwittingly allowed their process ofjudicial thinking to be vitiated by irrelevant reasonings andconsiderations. 14. Of course, in above case the Will wasdenied by a ranker trespasser. In this case, it is the daughterswho are denying the Will. The Evidence Act requires that if adocument is required to be attested at least one attesting witnessmust give evidence regarding the execution and without that itcannot be used as evidence. But if such a document is not a Willand it has been registered in accordance with law then it is notnecessary to call the attesting witness unless the execution isspecifically denied. Therefore, the first part of Section 68 ofthe Indian Evidence Act applies to the Will. The proviso willapply to the settlement since it has been registered. Though itis not necessary to call the attesting witness, here D.W.1 hasgiven evidence regarding proof of execution. It has also beenregistered. There is actually no specific denial even in thepleadings and nor in the evidence. When this is the requirementof law with regard to proof of registered settlement deed then wecannot disbelieve it unless there are compelling circumstances todo so. It is true that D.W.1 figures largely in the execution ofthe two documents. But he is the son of Unnamalai Ammal and theparents lived with him and therefore, it is not unnatural for himto be present when his mother executes such an important document.Had there been any cross-examination with regard to undueinfluence or coercion, the matter would have been different. Butnot even a whisper is made of either force or undue influence orcoercion and further as we have observed earlier, the beneficiaryunder the document is not D.W.1. They are his brother’s childrenand not even his children and except for her failing eye-sight,Unnamalai Ammal has not been proved to be senile or incapable ofmaking her own decisions.15. Even the pleadings relating to disclosure of Willand the Settlement Deed at the time of the parents death and theevidence regarding that, has been denied only by P.W.2 and noother third party. The plaintiffs could have examined KandasamyMudaliar to prove that the attestation was not in accordance withlaw. They could have examined any of the relatives to show thatafter the death of the parents the existence of the Will andSettlement were not revealed. It is true that the defendants mustprove the settlement and the Will and the onus is no on theplaintiffs and the Court should examine whether the Will andSettlement were properly executed. But as held by the SupremeCourt in 2002 (2) SCC 85(cited supra) which is again followed in2005 (1) SCC 280(Meenakshiammal Vs. Chandrasekaran), the suspicion https://hcservices.ecourts.gov.in/hcservices/ alleged must be one inherent in the transaction itself and not adoubt that may arise from the conflict of testimony. 16. The only feature, which may cause a little uneasiness, is thefact that none of the daughters got anything. But a reason hasbeen given for that to the effect that they had been providedfor. In Paragraph No.6 of the written statement it is stated thatPonnaiah Mudaliar had purchased four acres benami in the name ofthird plaintiff. It is his own money and she had filed the suit inO.S.No.9 of 1978 against the father which is pending even afterhis death. He has purchased one acre in the plaintiff’s name andshe was in enjoyment of the said property. He had also taken ausufructuary mortgage in favour of the second plaintiff with hisown money. Therefore, it was pleaded that apart from the jewelsand other presents which are customarily given to the daughtersPonnaiah Mudaliar had also made some arrangements with regard toimmoveable properties in favour of his daughters. It is alsopleaded that the Will was duly proclaimed even at the time offuneral ceremonies. In chief examination of D.W.1, he has saidthat the plaintiff knew about the Will and the Settlement Deed. Toprove that they had been kept in secrecy, the plaintiffs couldhave examined some third party as witness. But there is no validattack on the execution or attestation of the Will and theplaintiff, P.W.2's examination has already been extracted above,which is really of no use. 17. Execution and attestation is proved. There is nothing toshow undue influence, fraud, force or coercion. Moreover, themental condition of the testatrix was in sound and disposing stateas is spoken to by all the witnesses. So Exs-B4 and B5 must beaccepted.18.In the result, the appeal is partly allowed. Thepreliminary decree for partition is granted in respect of ASchedule property and dismissed with regard to B Scheduleproperty.GlpSd/-Asst. Registrar//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ ToThe Subordinate Judge, Tindivanam.+ 1 cc to M/s. S. Hemalatha, Advocate SR No.34449+ 1 cc to Mr. R. Sundarrajan, Advocate SR No.34079KK(CO)SR/31.8.2009L.P.A.No.140 of 2002