S. Kalyanasundaram v. Smt. Damayanthi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 24-10-2009CORAM:THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVANANDTHE HONOURABLE MR. JUSTICE M. SATHYANARAYANANO.S.A.No.274 of 20031. S. Kalyanasundaram2. Mrs. Malarvizhi... AppellantsVs. 1. Smt. Damayanthi2.S. Ganesan3. S. Subramani4. S. Sambandam5.S. Chandrasekaran ... RespondentsOriginal Side Appeal against the decree and judgment passed on22-07-2002 made in T.O.S.No.51 of 1987 (O.P.No.549 of 1987).For appellant :: Mr. T.P. KathiravanFor respondents :: Mr. A. Seshan for Mr. V. Veera Raghavan for R1 Mr. Murali Krishnan for R3No appearance for R2,4 and 5JUDGMENT(Judgment of the Court was made by PRABHA SRIDEVAN,J.)This appeal is filed against the judgment and decree inT.O.S.No.51 OF 1987. The Will that is sought to be proved wasaccording to the appellants the last Will of Annammal, the mother ofthe first appellant. The Will as per the original pleadings was dated01-11-1980. But, subsequently, the sale was amended as 12-11-1980. https://hcservices.ecourts.gov.in/hcservices/ The father of the first appellant Sundaramoorthy died on 17-11-1981.The mother died on 12-04-1982. The application for probate was filedin 1987 in O.P.No.549 of 1987 and it was converted as T.O.S.No.51 of1987.Before the learned Judge four witnesses were examined on theside of the appellants; one witness on the side of the respondent; 18exhibits were marked. The T.O.S. was dismissed.2.Briefly the facts are: The appellants are the son anddaughter-in-law of Sundaramoorthy and Annammal. According to them,the Will was duly executed and registered. No executor was appointedand therefore, they prayed for grant of letters of administration.The first defendant filed the written statement. She denied that shehad in her possession the original Will since the appellants onlyproduced the certified copy of the Will. It was alleged that the Willwas obtained in a fraudulent manner and it was not true. There aretwo other daughters and two other sons and there was no reason toexclude all of them. There was also a settlement deed dated 18-09-1981, by which a portion of the property said to have bequeathedunder the Will to the appellants have been given to the firstrespondent.According to them, the appellants took advantage of theill-health of the appellant and she was under the domination andcontrol and got the Will prepared. In the reply statement, this wasdenied. As regards the question whether the Will was true andgenuine, it was found by the learned Judge that there were severalsuspicious circumstances in obtaining the Will and therefore, theWill could not be considered as genuine. The original Will was notproduced and the attesting witnesses were not examined, though oneattesting witness was admittedly alive. The learned Judge was of theopinion that even if he was ill nothing stops from examining him oncommission and had further noted that there was even a discrepancyregarding the date of the Will. In the pleadings, the date of theexecution was first shown as 01-11-1980, whereas the certified copyof the Will which was marked as Ex-P16 shows that the Will wasexecuted on 12-11-1980. Therefore, this discrepancy was also noted bythe learned Judge. The learned Judge also held that the requirementsof Section 69 of the Indian Evidence Act was not satisfied andfurther in the pleadings it was stated that the Will was executedonly by Annammal whereas Ex-P16, the certified copy would show thatit was executed by Annammal and Sundaramoorthy. In thesecircumstances, the plaintiffs have neither proved the attestation asrequired by law. 3.The learned counsel for the appellant would strenuouslycontend that on the same date the Will and the Settlement Deed wereexecuted and P.W.4 was examined to prove the sound and disposingstate of mind of Annammal and referred to the evidence of P.W.4. Thelearned counsel for the appellant also referred to the evidence ofP.W.2, the Sub-Registrar of Kodambakkam and submitted that this was aregistered Will and P.W.4 had spoken of the true registration of theWill and therefore, that should be accepted. The learned counselsubmitted that when it is clear from the evidence of P.W.4 that https://hcservices.ecourts.gov.in/hcservices/ Annammal was in sound and disposing state of mind and when the Willhad been duly registered which is spoken to by P.W.4, there is nojustification to disbelieve the Will. The learned counsel alsosubmitted that the property that was bequeathed under the Willbelonged exclusively to Annammal and therefore, it was stated thatthe Will was executed by Annammal, since the father Sundaramoorthyhad no interest in the property to bequeath it on the appellants. 4.The learned counsel also relied on several judgmentsespecially to 2006 (2) L.W. 658 (Pentakota Satyanarayana & others Vs.Pentakota Seetharamam & Others) where it was held in ParagraphNos.25, 26 that "A presumption by a reference to Section 114 of theEvidence Act shall arise to he effect that particulars contained inthe endorsement of registration were regularly and duly performed andare correctly recorded".The learned counsel submitted that wouldclearly apply. The learned counsel also referred to 2005 (1) SCC 280(Meenakshiammal Vs. Chandrasekaran) and submitted that whenallegations of undue influence or guilty is made, it is upon theperson making such allegations. 5.Heard the learned counsel for the respondent. 6.In this case, the requirements of proof of Will both underthe Indian Succession Act and the Indian Evidence Act are notsatisfied. In the first place, the original Will was not produced.Though a notice to produce the original Will was issued to therespondent, she had clearly stated that the alleged Will was notwith her and in these circumstances, she is not able to produce. Itis not as if she refused to produce. It is in these circumstances,the learned Judge had held that the appellant could have examinedsome other family member to prove the custody of the Will. Therefore,the original Will is not before the Court.7.Next we come to examination of the attesting witnesses.Itis no doubt true that one of them N. Balakrishnan had died. But theother witness could have been examined on Commission,if he was ill asit was alleged. The propounder could have examined someone to provethe due attestation of attesting witness and the signature of thatperson. This was not done. The evidence of P.W.4 does not help. Itmerely shows that the date of execution of the Settlement deed,Annammal was in a sound and disposing state of mind. 8.A more vital factor in this case is that the appellantsmake material mistakes regarding crucial aspects of the Will. (1)The Will was executed by both the mother and father, but theircategoric statement in the pleadings is that the Will was executed bythe mother. (2) The appellants are not correct about the date ofthe Will. Originally, only the plaint mentioned 01-11-1980,subsequently it was amended as 12-11-1980. It was pleaded that therewas a typographical error. But we must remember that with regard to aWill, we are testing whether a person who is not before us had https://hcservices.ecourts.gov.in/hcservices/ actually executed the document. Therefore, the Court must besatisfied that all the suspicious circumstances are duly explainedand there is nothing to disturb us regarding the due attestation,execution etc. Here these mistakes make us doubt the case of theappellant. Moreover, the Will has not been proved in accordance withlaw. 9.In all the cases that have been produced before us, theCourts have held that the requirement of proof of execution andattestation cannot be dispensed with. Even in 2006 (2) L.W. 658(supra) we find that the attesting witnesses had been examined andthe scribe had also been examined. It is only thereafter the SupremeCourt held that once it is registered, the registration is supposedto be duly done. We cannot ignore the statutory requirements of theIndian Evidence Act and the Indian Succession Act. 10.Therefore, we confirm the judgment of the learned SingleJudge. The appeal is dismissed. No costs. The connected miscellaneouspetition is closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarglpToThe Sub Asst.Registrar (Original Side),High Court,Madras.+1cc to Mr.L.Muralikrishnan,AdvocateSr 56763+2ccs to Mr.P.Veeraraghavan, Advocate 56357+1cc to Mr.T.P.Kathirravan, Advocate Sr 56354RSY(CO)km/10.11.O.S.A.No.274 of 2003