G.Nagappan v. B.Kalaichelvam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 09.07.2008 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE R.SUBBIAHO.S.A.NO.177 OF 2004G.Nagappan.. AppellantVs.1.B.Kalaichelvam2.Poongavanam3.B.Kumari4.R.Vijaya5.B.Elango6.B.Ravi7.B.Ramesh8.B.Latha9.B.Ananthi10.D.Chokkanathan11.D.Gopi12.D.Raja13.D.Kannan14.D.Bhuvaneswari15.D.Ravi16.D.Jaya17.K.Chinnaponnu18.Jagannathan (died)19.Masilamani20.Mohanasundaram(R18 died recorded as per order of Court dated 9.7.08 made in Memo dt.28.6.06 SR.No.57264/06.. Respondents This O.S.A. has been preferred under Order XXXVI Rule 11 of O.S.Rules read with Clause 15 of Letters Patent against the judgment anddecree dated 22.06.2004 in T.O.S.No.14 of 1995. For Appellant : Mr.M.S.PalanisamyFor Respondents: Mr.R.Muthukumarasamy, Senior Advocate for Mr.A.Jenasenan for R1 Mr.R.Kamesh for RR3,4, 10 to 17 No appearance for RR2,5 to 9, 18 to 20 - - - - https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT(The judgment of the Court was made by M.CHOCKALINGAM, J.)A challenge is made by the 17th defendant to the judgment of thelearned Single Judge made in T.O.S. No.14 of 1995.2.The first respondent/plaintiff filed originally an orignalpetition for the issue of probate and subsequently, it was convertedto a suit. The plaintiff filed the proceedings, seeking the reliefwith the following averments:The plaintiff's aunt one Saraswathi Ammal has executed a Will on1.12.1989, bequeathing her entire estate in the schedule mentionedproperty absolutely in favour of the plaintiff; that she died on20.08.1990; that the Will was attested by two witnesses, namelyS.Rajasekaran and S.Venkateswaran; that on her death, the Will hascome into force; that her husband predeceased her; that the deceasedhad no issues and hence except the plaintiff, no one is entitled tohave any share; that since the Will has come into force, theplaintiff is entitled to the property and he required that it has gotto be probated and under these circumstances, he has approached thiscourt.3.The defendants filed written statement, inter-alia, admittingthat the said Saraswathi Ammal is the wife of Palani Chettiar, whopredeceased his wife; that the said Saraswathi Ammal also died on20.08.1990, but she died intestate; that at no point of time, sheexecuted any will or testament as put forth by the plaintiff; thatthe plaintiff could not claim the property as the heir of thedeceased; that the Will was shrouded with suspicious circumstances;that it was a forged document, which was brought forth by theplaintiff to his advantage; that one attesting witness was thematernal uncle of the plaintiff, while the other also hails from thesame place and hence they have actually supported the cause of theplaintiff in bringing forth the fabricated Will; that the 'C'schedule property absolutely belonged to Palani Chettiar, while 'A'and 'B' schedule properties were acquired by Saraswathi Ammal; thatthe defendants by operation of law were to succeed to the property,but in order to defeat their right, such a Will has been broughtforth and hence it is an invalid document and therefore, it is not afit case where the probate could be issued and hence the suit was tobe dismissed. 4.The learned Single Judge framed three issues. On the side ofthe plaintiff, P.W.1, the propounder and P.Ws.2 and 3, the attestingwitnesses were examined and Exs.P.1 to P.15 were marked. On the sideof the defendants, one Bakthavatsalam was examined as D.W.1 andthrough whom, Ex.D.1 was marked. The learned Single Judge, onenquiry and after considering the materials available, took the viewthat the propounder has proved due execution and attestation of theWill and thus, he has proved the Will and therefore, the Will is the https://hcservices.ecourts.gov.in/hcservices/ valid one and hence the relief was to be granted and accordingly,granted the relief. Aggrieved the 17th defendant has brought forththis appeal. 5.The points that would arise for consideration before this courtin this appeal are:i)Whether the first respondent/plaintiff has provedthe Will?ii)Whether it could be declared as invalid documentfor the reasons stated by the appellant and thecircumstances shown to the Court?6.Advancing arguments on behalf of the appellant, the learnedSenior Counsel would submit that the first respondent/plaintiff cameforward originally with the original petition in O.P.No.621 of 1990and got an ex parte order in his favour, keeping all the closerelatives and the heirs, who could succeed the property of SaraswathiAmmal by operation of law, in darkness; that after coming to knowabout the same, an application was filed in Application No.5800 of1991 in order to set aside the ex parte order, which was dismissedand an appeal was preferred in O.S.A.No.105 of 1992 and the same wasallowed and all other defendants were ordered to be added as parties.Thereafter, they have filed written statement and challenged theproceedings. According to the plaintiff, the Will was executed on01.12.1989 and the said Saraswathi Ammal died on 20.08.1990. On theside of the plaintiff, three witnesses were examined. P.W.1 was thepropounder and P.Ws.2 and 3 were said to be the attesting witnesses.From the evidence of P.W.1, it would be quite clear that he was notpresent at the time of execution of the Will. On the contrary, hisevidence would indicate that the entire family members of theplaintiff, including his father Balakrishnan, were residing with thetestatrix during the relevant time. A look at the document, namelythe Will, would clearly shows that it was the one fabricated.Ex.P.15, Will was not a registered document. It is true, the Will isthe document, which does not require registration, but in the instantcase, number of suspicious circumstances are attendant, which wouldclearly indicate that it is a forged document. It is a typed matterhaving the signature of the said Saraswathi Ammal, but it did notcontain the name of the scribe or by whom it was typed. Twowitnesses, P.Ws.2 and 3, have signed the document as attestingwitnesses and both were examined before the Court. At the time ofexamining them, this document Ex.P.15 was not shown to them. So longas the document was not shown to them, they could not identify theirsignatures in the document either or they could not identify thesignature of the testatrix and thus, it cannot be said that thedocument is said to have been proved as one expected in law. Areading of the document would clearly reveal that all heirs and theclose relatives of Saraswathi Ammal were not only excluded, but thereis not even reference as to their existence, which would point outthe suspicion. It is pertinent to point out that even as per theevidence of P.W.1, the plaintiff, she has shown affection to all and https://hcservices.ecourts.gov.in/hcservices/ treated all relations alike. If to be so, one would naturally expectas to why such close relations were excluded, but no reference ismade. 7.Added further the learned Senior Counsel that insofar as twoattesting witnesses, one is close relative, namely maternal uncle andthe other belonged to the native village of the plaintiff and theirservice has been taken for the purpose of the forged document. Therewas originally notice issued by the 20th defendant on 24.01.1991,which was also brought forth reply by the father of the plaintiff on30.01.1991. The issuance of notice and the reply by his father areadmitted by him. It is pertinent to point out that in the course ofthe reply, no reference was made to the Will. If the saidBalakrishnan, the father of the plaintiff and all family members,including the plaintiff were living together with the SaraswathiAmmal during the relevant time, the execution of the Will bySaraswathi Ammal should have been within the knowledge of the saidBalakrishnan. If so, he would have certainly made mentioning aboutthe execution of the Will in the said notice, but has not done so.Conveniently, the plaintiff in the cross examination has stated thathe did not know whether the execution of the Will was stated by hisfather in the reply. 8.Further, the learned Senior counsel would add that the name ofthe scribe is not found in the document and also he has not beenexamined and no explanation was forthcoming from the plaintiff. Thesubsequent conduct of the plaintiff would also point out the factthat such a document could not have come into existence at all. 4days prior to the death of the said Saraswathi Ammal, she sent aletter to the 17th defendant and the same was written by D.W.1 and thedocument was also marked as Ex.D.1. D.W.1 has been examined, who hascategorically deposed the fact that the lady came to his house andinstructed him to write the letter and accordingly, Ex.D.1 waswritten on her dictation. The said letter was also produced beforethe Court. A reading of the same would clearly indicate that shecould not have executed the Will as put forth by the plaintiff. Hadthe Will been executed really as put forth by the plaintiff and asfound in Ex.P.15, she should have definitely referred the executionof the Will in the course of the letter Ex.D.1, but it was not doneso. This would clearly indicate that such a document could not havecome into existence at all. Further, in the instant case, the Will isnot proved. All the suspicious circumstances attendant would go toshow that such a Will could not have come into existence as put forthby the plaintiff. In support of his contentions, the learned Seniorcounsel for the appellant has relied on the following decisions:i)1994 MLJ 216 (M.S.P. RAJESH VS. M.S.P.RAJA ANDOTHERS)ii)AIR 1955 RAJASTHAN 39 (BITHALDAS AND OTHERS VS.CHANDRATAN)iii)AIR 1959 SC 443 (VENKATACHALA IYENGAR VSB.N.THIMMAJAMMA AND OTHERS) https://hcservices.ecourts.gov.in/hcservices/

9.Contrary to the above contentions, the learned counsel for therespondent/plaintiff would submit that the judgment of the learnedSingle Judge has got to be sustained, since the Court has marshalledthe evidence proper, considered the same and has come to a correctconclusion; that the plaintiff/respondent has sought probate inrespect of the Will executed by Saraswathi Ammal on 01.12.1989; thatthe learned Single Judge has granted the relief as asked for; thatthe same was challenged only by the 17th defendant, but no one elsehad challenged the proceedings; that the 17th defendant, even byoperation of law, could not succeed to the property as the heir ofSaraswathi Ammal and hence the total contentions pur forth by theappellant's side, challenging the document, have got to be rejected.It is not correct to state that the Will was not proved as requiredby law. The plaintiff approached the court by filing O.P for probatein O.P.No.621 of 1990 and it was actually ordered. The probateproceedings could not have been taken into file and the order couldnot have been granted without filing the original Will and thus, itwould be quite clear that the original Will was in the custody of theCourt all along. When the order was challenged in an appeal, theorder of the learned Single Judge was set aside. It is true, thedefendants have become the parties and they have filed writtenstatements. 17th defendant, who has now challenged the judgment of thelearned Single Judge, neither examined himself nor has he crossexamined the witnesses. Further, he did not produce any document fromhis side. 10.Added further the learned counsel that so far as proof ofEx.P.15 was concerned, the plaintiff, who is the propounder, examinedhimself and two attesting witnesses, namely P.Ws.2 and 3, were alsoexamined. P.Ws.2 and 3 have categorically deposed to the fact that onthe date of execution of the Will on 01.12.1989, both were present atthe time when Saraswathi Ammal signed the document and she was alsopresent when both the attesting witnesses have signed the documentand thus, the document has come into existence. It is true, P.W.1 wasrecalled later. At the time of chief examination, he hascategorically deposed that the document was shown to both P.Ws.2 and3 at the time of their examination in Court. This part of the chiefexamination of P.W.1 at the time of recalling was never objected toor not cross examined. Thus, it is not correct to state that thedocument was not shown to the witnesses. Only after showing thedocument to the witnesses, they have spoken about the fact. It ispertinent to point out that the signature of Saraswathi Ammal in thedocument was never denied by the defendants at the time ofexamination of any one of the witnesses. Further, in the instantcase, by examining both the witnesses, the propounder has proved theexecution and attestation of the document. 11.Added further the learned counsel that the contention putforth by the appellant's side that there were suspiciouscircumstances attended over the same have got to be thoroughlyrejected. In the instant case, as could be seen from the availablematerials, Saraswathi Ammal had no issues and hence she has treated https://hcservices.ecourts.gov.in/hcservices/ the plaintiff as her son from the childhood. Ex.P.15, the Will, inquestion, was not the first document executed by her in his favour,but she has also executed a settlement deed in the year 1976, wherebya vast agricultural properties were settled by her. For a period ofnearly 15 years, they have been living together and she continued thesame affection with him. A reading of the settlement deed, Ex.P.2would indicate the love and affection which she has shown to him,which impelled her to execute such a document. There is no evidenceto indicate anything contra as to the relationship between them inthe past 15 years till the document has come into existence in theyear 1989. The law does not require that the scribe must be examined.It is true, the scribe has not been examined, but it did not meanthat the Will is the forged document when both the attestingwitnesses were examined. 12.The learned counsel would further add that in the instantcase, the only document what was brought forth and relied on by theappellant was Ex.D.1 letter. Ex.D.1 letter, according to theappellant, is alleged to have been written 4 days prior to the deathof the said lady. Now, at this juncture, no evidentiary value couldbe attached to the said document for the reasons that SaraswathiAmmal has not signed the document. It was also addressed to the 17thdefendant. The document was not marked through him, but it was markedthrough D.W.1. As per the evidence of D.W.1, he was residing atVillivakkam and the lady went over to his house and the said documenthas come into existence. If to be so, her health was perfectlyalright. Under these circumstances, why she did not sign the documentremains unknown. Ex.D.1 has come into existence just 4 days prior tothe death of Saraswathi Ammal on 20.08.1990, but the Will has comeinto existence on 01.12.1989. This document, even assuming to betrue, it cannot have any reflection over the Will already executed.Even in the schedule of property, as could be found in 'A' schedule,two joint deposits were made in the name of testatrix and theplaintiff just a few months prior to the execution of Will, inquestion. This would be indicative of the fact that they are in goodrelationship during the relevant period. It is true, it is not aregistered one. Merely because of non registration, it cannot becommented that the Will is the forged document. It is true, O.P. wasfiled in the year 1990 and only after due publication and followingprocedural formalities, an order came to be passed and it did notmean that it was the intention of the plaintiff to keep thedefendants in darkness and to snatch the order, but it wasprocedurally done. Therefore, the execution and attestation of thedocument has been proved as per law and at no stretch of imagination,all the circumstances stated by the appellant's side could beconsidered as suspicious circumstances and hence the order of thelearned Single Judge has got to be sustained. 13.The Court has paid its anxious consideration on thesubmissions made and made a scrutiny of both oral and documentaryevidence adduced before the learned Single Judge. https://hcservices.ecourts.gov.in/hcservices/

14.It is not in controversy that Saraswathi Ammal is the owner ofthe properties mentioned in the Will and she died on 20.08.1990. Herhusband Palani Chettiar predeceased her. 'C' schedule propertybelonged to him, who died intestate and it devolved upon his wife.'A' and 'B' schedule properties were acquired by the lady. The caseof the plaintiff, who sought the relief, was that she executedEx.P.15, unregistered Will, on 01.12.1989 and the same was attestedby P.Ws.2 and 3 and it has got to be probated. The main defence pleawas that she died intestate and all the defendants by operation oflaw have to succeed to the property; that one attesting witness isthe close relative of the plaintiff and the other one belongs to thenative village of the plaintiff and hence their service was taken tobring forth Ex.P.15, the forged document. Needless to say, the Willhas got to be proved as any other document. Since the testatrix, whoexecuted the same, will not be available at the time when it comesinto force, the law would require that it must be proved strictly. Inthe instant case, The plaintiff, the propounder, has examined himselfas P.W.1. It is not his evidence that he was present at the time whenthe Will was executed, but he has examined P.Ws.2 and 3, both werethe attesting witnesses. A perusal of Ex.P.15 would indicate that bywhom it was typed was not shown. The name of the scribe himself wasnot found in the document. The criticism levelled by the appellant'sside that the scribe has not been examined has got to bediscountenanced. The non examination of the scribe of the document,in the instant case, in the considered opinion of the Court, will notin any way affect the case for the reasons that two attestingwitnesses have been examined. So far as P.Ws.2 and 3 are concerned,when their evidence is scrutinized, it would be quite clear that theywere present at the time of execution of the document and also at thetime when Saraswathi Ammal signed the document. Saraswathi Ammal alsowas present when both of them have attested the document. 15.The contention of the appellant's side is that Ex.P.15 was notshown to any of the attesting witnesses at the time of theirexamination and hence without showing the document, it cannot betaken that Ex.P.15 was proved. This contention, in the opinion of theCourt, is replied by the respondent's side. P.W.1 was recalled laterand the document was marked as Ex.P.15. He has categorically statedthat the document was shown to both the witnesses at the time ofexamination, but this part of the chief examination was not crossexamined. The evidence in this regard remains intact. In the instantcase, the signature of Saraswathi Ammal in Ex.P.15 was never disputedby any one of the defendants. Now the question that would arise iswhether it is shrouded with suspicious circumstances as put forth bythe appellant's side. 16.It is not in controversy that the plaintiff was all alongliving with Saraswathi Ammal from his childhood. The first documentexecuted by Saraswathi Ammal in favour of the plaintiff was Ex.P.2,the settlement deed, where she has settled acres of agriculturallands on him. A reading of recitals of Ex.P.2 would go to show thatSaraswathi Ammal had no issues and hence she has shown more affection https://hcservices.ecourts.gov.in/hcservices/ on him and also treated him with affectionate. This would clearlyindicate that even at the time when Ex.P.2 came into existence in theyear 1976, she had shown all her affectionate on him. At thisjuncture, the contention put forth by the learned counsel for theappellant that all the heirs and close relatives, who were entitledto have the property by operation of law have been excluded, has gotan answer. Even in the year 1976, when Saraswathi Ammal executedsettlement deed in respect of vast agricultural lands, she hadexcluded all the heirs for the reasons set out by her and that shehad no issues and she had got full affection of the plaintiff. Thenext document that came into existence is Ex.P.15, the Will. It ispertinent to point out that from 1976 when Ex.P.2 came into existencetill 01.12.1989 when the Will has come into existence, in betweenthese 13 years, there is no iota of evidence to show that she haddeveloped any displeasure or animosity or ill-will against theplaintiff. On the contrary, it is clear from the evidence that allalong the period, the plaintiff was staying with her. Apart fromthat, it is an admitted position that two joint deposits as found in'A' schedule were actually made in the names of both Saraswathi Ammaland also the plaintiff. Both deposits came to be made just two monthsprior to Ex.P.15, the Will. Had it been true that Saraswathi Ammalwas not satisfied with the conduct of the plaintiff, there was nooccasion for her to make the two deposits jointly with the plaintiffas found in Ex.P.15, the Will just two months prior to the executionof Ex.P.15, the Will. 17.The other document relied on by the appellant is Ex.D.1, theletter alleged to have been written by D.W.1 on dictation ofSaraswathi Ammal just 4 days prior to her death. This document formore reasons cannot have any evidentiary value. First of all, thisdocument did not contain the signature of Saraswathi Ammal. Secondly,the document was addressed to the 17th defendant, but the 17thdefendant has not gone into box to depose anything what is found inthe written statement. Added further, the document was marked throughD.W.1. According to him, on the said date, she came to his house atVillivakkam and gave dictation to write the document. Now, at thisjuncture, it is pertinent to point out that had her health beenalright and she was able to go upto Villivakkam, what prevented herfrom making signature in the document was not made known. Apart fromthat, even assuming to be true that this document has come intoexistence 4 days prior to her death on 20.08.1990, in the consideredopinion of the court, it will not have any reflection over the Willthat has already been executed either, or it will not defeat what hasalready done by the testatrix. 18.Further, it is pertinent to point out that the defendants,though had the knowledge of settlement deed of the year 1976, had noteven come forward to challenge the same and from the year 1976 till1990, i.e. for a period of nearely 13 years, the defendants have notchallenged the document. It is pertinent to point out that it istrue, in the instant case, the plaintiff examined himself asP.W.1 and also examined P.Ws.2 and 3, both attesting witnesses. The https://hcservices.ecourts.gov.in/hcservices/ circumstances, which were brought forth by the learned counsel forthe appellant, though appears to be suspicious circumstances, in theopinion of the Court, would not be sufficient to declare the same asinvalid document. Hence all the contentions now put forth by thelearned counsel for the appellant do not carry any merit. This Courtis of the considered opinion that the order of the learned SingleJudge has got to be sustained. Accordingly, it is sustained and theoriginal side appeal is dismissed. No costs. Sd/-Asst. Registrar/true copy/Sub Asst. RegistrarvvkTo1. The Sub Asst. Registrar, Original Side, High Court, Madras+1 cc to Mr.M.S.Palanisamy, Advocate, SR.No.36572+1 cc to Mr.A.Jenasenan, Advocate, SR.No.35910O.S.A.NO.177 OF 2004MDR (CO)SMK/01.08.08