P.Mani AliasP.Balasubramaniam v. P.Viswanathan (deceased)

JUDGMENTM.VENUGOPAL,J.O.S.A.No.379 of 2001 is filed by the appellant/ plaintiff asagainst the Judgment and Decree of the learned Single Judge dated24.01.2001 passed in T.O.S.No.20 of 1990 in dismissing the suitwith costs.2.The appellant/plaintiff has filed T.O.S.No.20 of 1990seeking to issue a probate in respect of the Will dated17.09.1986 executed by Alamelu Ammal.3.After contest, the learned Single Judge has inter aliacome to the conclusion that the Ex.P.1-Will dated 17.09.1986 istainted with invalidating factors and should have come intoexistence under suspicious circumstances, which the plaintiff hasnot explained properly and held that the appellant/plaintiffthoroughly failed to prove that the said Will was executed byAlamelu Ammal and dismissed the suit with costs. Aggrievedagainst the judgment and decree passed by the learned SingleJudge dated 24.01.2001 in T.O.S.No.20 of 1990, the plaintiff haspreferred O.S.A.No.379 of 2001 as an appellant.4.According to the learned counsel for the appellant/plaintiff, the learned Single Judge fell into error in initiallyassuming that there are suspicious circumstances in regard to theEx.P.1-Will dated 17.09.1986 and that the propounder failed toclear the same and that the learned Single Judge has lost sightof the evidence of Mr.Ravichandran, Assistant at Sub RegistrarMain Office who produced the register containing the signaturesof Alamelu and that the adverse inference drawn against theappellant/ plaintiff on his failure to produce the original willis not correct and there are absolutely no suspiciouscircumstances attending the execution of the Will and the doubtin regard to the signature of Alamelu in Ex.P.1-Will merely onthe ground that in Ex.D.8 the signature is as 'Alamelu Ammal' andthe reasons assigned for rejecting the evidence of P.W.2 by thelearned Single Judge are not fair and proper and that the learnedSingle Judge was wrong in assuming that P.W.2 saw the originalWill from not appreciating his evidence when he deposed that hesaw the Will and that the evidence of P.W.2 is not that he sawthe original Will and that per contra the learned Single Judgeought to have held that the execution of the Will was duly provedand therefore, prays for allowing the appeal.5.The learned counsel for the appellant contends that thereis clear evidence in the instant case on hand, to prove the dueexecution of the Will and therefore, when once the due executionis established the Court is not concerned with the manner of https://hcservices.ecourts.gov.in/hcservices/ disposition or contents thereof, which is exclusive domain of thetestator.6.The learned counsel for the appellant/plaintiff cited thedecision 2006-4-L.W.-24 Dr.A.Ravikumar V. M.Savithiri and others,whereunder it is held as follows:"Will/Genuineness – Suspicious circumstance, whatis – Order of trial judge rejecting application forProbate set aside – Bequest in favour of second wifeand her sons (Appellant and R1, R2) upheld, as againstobjection by the first wife's daughter (R4) – Willwhich has been produced and proved is the Will preparedby carbon process, an exact copy of the other documentwhich has been now produced – Merely because there issome omission to indicate the address of the attestingwitnesses in the first page of such document, which wasalready executed by the executant and attested by theattesting witnesses, no suspicion can be raised againstthe due execution of the Will.Fact that the testator had not indicated about theexecution of the Will to his sister or even to othermembers including the daughter, such circumstancecannot be considered as a ground to discard the Will,when execution of such Will has been proved throughindependent witness – Conclusion of the learned singleJudge that the Will had not been executed and there issuspicious circumstance cannot be sustained".7.He also relied on 2006-2-L.W.-658 Pentakota Satyanarayanaand others V. Pentakota Seetharatnam and others, wherein it isobserved as follows:"Will/Genuineness, Evidence Act (1872), Sections68, 114(g), "Execution", what constitutes, HinduLaw/Adoption, truth and validity – Question arising inthis appeal (i) is the genuineness of the Will dated20.2.80 and (ii) validity of the factum of adoption ofthe 2nd respondent – Held: (i)Appellants have dischargedtheir burden and established the genuineness of theWill and that it was executed by 'S' and was his lastWill.All the witnesses deposed that they had signed asidentifying witnesses and testator was in a sounddisposing state of Mind."Execution" consists in signing a documentwritten-out, read-over and understood and to go throughthe formalities necessary for the validity of legalact.Signatures of the Registering Officer and of theidentifying witnesses affixed to the registration https://hcservices.ecourts.gov.in/hcservices/ endorsement were sufficient attestation – Endorsementby the Sub-Registrar that the executant hasacknowledged before him the execution also amounted toattestation.Presumption under Section 114 shall arise to theeffect that particulars contained in the endorsement ofregistration were regularly and duly performed andcorrectly recorded.No case of undue influence, coercion or fraud ismade out to negate the Will".8.On the side of appellant/plaintiff reliance is placed onthe decision 2006-4-L.W.942 Gurdev Kaur and Others V. Kaki andothers, wherein it is laid down as follows:"Will/Genuineness, Presumption of legality when dueexecution is proved, Scope, C.P.C., Section 100 (asamended by Amendment of 1976)/ Duty of High Court inSecond Appeal, "Substantial question of law", what is,Framing of the question – Contents of the Will have tobe appreciated in the context of the circumstances, andnot vis-a-vis the rules for intestate succession – Itis only for this limited purpose that the Courtexaminers the nature of bequest – Court does notsubstitute its own opinion for what was the testator'sWill or intention as manifested from a reading of thewritten instrument – After all, a Will is meant to bean expression of his desire and therefore, may resultin disinheritance of some and grant to another. Paras76,77,78If a Will appears on the face of it to have beenduly executed and attested in accordance with therequirements of the Statute, a presumption of dueexecution and attestation applies".9.It is useful to refer to the decision AIR 1964 SC 529Shashi Kumar Banerjee and others V. Subodh Kumar Banerjee (sincedeceased and after him his LRs) and others, wherein it is held asfollows:"Succession Act (1925), Ss.63 and 289 – Will – Mode ofproof – Onus – Principles indicated – When court wouldgrant probate – AIR 1958 Cal 264, Reversed.The mode of proving a will does not ordinarilydiffer from that of proving any other document exceptas to the special requirement of attestation prescribedin the case of a will by S.63, Succession Act. The onusof proving the will is on the propounder and in theabsence of suspicious circumstances surrounding theexecution of the will, proof of testamentary capacityand the signature of the testator as required by law is https://hcservices.ecourts.gov.in/hcservices/ sufficient to discharge the onus. Where however thereare suspicious circumstances, the onus is on thepropounder to explain them to the satisfaction of thecourt before the court accepts the will as genuine.Where the caveator alleges undue influence, fraud andcoercion, the onus is on him to prove the same. Evenwhere there are no such pleas but the circumstancesgive rise to doubts, it is for the propounder tosatisfy the conscience of the court. The suspiciouscircumstances may be as to the genuineness of thesignature of the testator, the condition of thetestator's mind, the dispositions made in the willbeing unnatural improbable or unfair in the light ofrelevant circumstances or there might be otherindications in the will to show that the testator'smind was not free. In such a case the court wouldnaturally expect that all legitimate suspicion shouldbe completely removed before the document is acceptedas the last will of the testator. If the propounderhimself takes part in the execution of the will whichconfers a substantial benefit on him, that is also acircumstance to be taken into account, and thepropounder is required to remove the doubts by clearand satisfactory evidence. If the propounder succeedsin removing the suspicious circumstances the courtwould grant probate, even if the will might beunnatural and might be other indications in the will toshow that the testator's mind was not free. In such acase the court would naturally expect that alllegitimate suspicion should be completely removedbefore the document is accepted as the last will of thetestator. If the propounder himself takes part in theexecution of the will which confers a substantialbenefit on him, that is also a circumstance to be takeninto account, and the propounder is required to removethe doubts by clear and satisfactory evidence. If thepropounder succeeds in removing the suspiciouscircumstances the court would grant probate, even ifthe will might be unnatural and might cut off wholly orin part near relations. AIR 1959 SC 443 and AIR 1962 SC567, Foll".10.In AIR 1965 SC 354 and 355 Ramchandra Rambus V. Champabaiand others, it is held as follows:"In all cases in which a will is prepared undercircumstances which arouse the suspicion of the Courtthat it does not express the mind of the testator, orthat it was prepared under highly suspiciouscircumstances, it is for the propounder of the will toremove that suspicion. AIR 1929 PC 45, Reiterated (Para https://hcservices.ecourts.gov.in/hcservices/ 6)Where it appears that the propounder has taken aprominent part in the execution of the will whichconfers substantial benefits on him, that itself isgenerally treated as a suspicious circumstanceattending the execution of the will".Further, in the aforesaid decision at page 354 and 355 it is laiddown as follows:"(b) Evidence Act (1872), Ss 5 and 118 - Credibility ofwitnesses – It is open to court to look intosurrounding circumstances. In order to judge thecredibility of the witnesses, the Court is not confinedonly to the way in which the witnesses have deposed orto the demeanour of witnesses, but it is open to it tolook into the surrounding circumstances as well as theprobabilities, so that it may be able to form a correctidea of the trustworthiness of the witnesses. Theissue, namely, whether the testator did execute a willand if he did, then whether it was duly attested by thewitnesses, cannot be determined by considering theevidence adduced in the Court separately from thesurrounding circumstances which have also been broughtout in the evidence, or which appear from the natureand contents of the document itself. 22 Ind App 12 (23)(PC) Expl".11.It is not out of place to cite the decision AIR 1982 SC133 Smt.Indu Bala Bose and others V. Manindra Chandra Bose andanother, whereby it is held as follows:"The mode of proving a will does not ordinarily differfrom that of proving any other document except to thespecial requirement of attestation prescribed in thecase of a will by S.63 of the Succession Act. The onusof proving the will is on the propounder and in theabsence of suspicious circumstances surrounding theexecution of the will, proof of testamentary capacityand the signature of the testator as required by law issufficient to discharge the onus. Where however thereare suspicious circumstances, the onus is on thepropounder to explain them to the satisfaction of thecourt before the court accepts the will as genuine.Even where circumstances give rise to doubts, it is forthe propounder to satisfy the conscience of the court.The suspicious circumstances may be as to thegenuineness of the signatures of the testator, thecondition of the testator's mind, the dispositions madein the will being unnatural, improbable or unfair inthe light of relevant circumstances, or there might be https://hcservices.ecourts.gov.in/hcservices/ other indications in the will to show that thetestator's mind was not free. In such a case the courtwould naturally expect that all legitimate suspicionsshould be completely removed before the document isaccepted as the last will of the testator. If thepropounder himself takes a prominent part in theexecution of the will which confers a substantialbenefit on him, that is also a circumstance to be takeninto account, and the propounder is required to removethe doubts by clear and satisfactory evidence. If thepropounder succeeds in removing the suspiciouscircumstances the court would grant probate, even ifthe will might be unnatural and might cut off wholly orin part near relations. Any and every circumstance isnot a 'suspicious' circumstance. A circumstance wouldbe 'suspicious' when it is not normal or is notnormally expected in a normal situation or is notexpected of a normal person. AIR 1964 SC 529, AIR 1959SC 443, AIR 1962 SC 567, AIR 1950 PC 90, AIR 1950 FC 21and AIR 1946 PC 156.Rel. On".12.In AIR 1962 Supreme Court 567 Rani Purnima Debi andanother V. Kumar Khagendra Narayan Deb and another, it isobserved as follows:"Succession Act (1925), S.63 Will – Execution –Genuineness – Testator not making proper provision forhis wife and sister depending on him – Propoundergetting sole benefit under the will subject tomaintenance of testator's wife and sister – Propoundertaking part in execution of will – Signature oftestator not appearing to be his usual signature –Testator in habit of signing blank papers – Signatureof testator not in same ink and not with same pen withwhich body of will was written – Held propounder wasrequired to satisfactorily explain suspiciouscircumstances before he could get letters ofadministration – Witnesses examined in Court beinginterested – Evidence given by them not sufficient todispel suspicion as to due execution and attestation ofwill – Application for registration of will given byagent of testator for registration on commission – Sub-registrar sending his clerk to execute the commission –Nothing on record to show that will was read over totestator before he admitted execution of the will –Exact words used by the clerk and exact reply oftestator absent from evidence – Held that broadstatement of the clerk that he examined the testatorwho admitted execution of the will was not sufficientto dispel serious suspicion attaching to due executionand attestation of the will – Held that even https://hcservices.ecourts.gov.in/hcservices/ registration of the will was not sufficient to removethe suspicion – Held that as the propounder was unableto dispel the suspicious circumstances which surroundedthe execution and attestation of this will, in thecircumstances, no letters of administration in hisfavour could be granted on the basis of it. AIR 1959SC 443, Rel. on". 13.In AIR 1959 Supreme Court 443 H.Venkatachala Iyengar V.B.N.Thimmajamma and others, it is held as follows:"The party propounding a will or otherwise making aclaim under a will is no doubt seeking to prove adocument and, in deciding how it is to be proved,reference must inevitably be made to the statutoryprovisions which govern the proof of documents.Sections 67 and 68 of the Evidence Act are relevant forthis purpose. Under S. 67, if a document is alleged tobe signed by any person, the signature of the saidperson must be proved to be in his handwriting, and forproving such a handwriting under Ss. 45 and 47 of theAct the opinions of experts and of persons acquaintedwith the handwriting of the person concerned are maderelevant. Section 68 deals with the proof of theexecution of the document required by law to beattested; and it provides that such a document shallnot be used as evidence until one attesting witness atleast has been called for the purpose of proving itsexecution. These provisions prescribe the requirementsand the nature of proof which must be satisfied by theparty who relies on a document in a Court of law.Similarly, Ss.59 and 63 of the Indian Succession Actare also relevant. Thus the question as to whether thewill set up by the propounder is proved to be the lastwill of the testator has to be decided in the light ofthese provisions. It would prima facie be true to saythat the will has to be proved like any other documentexcept as to the special requirements of attestationprescribed by S.63 of the Indian Succession Act. As inthe case of proof of other documents so in the case ofproof of wills it would be idle to expect proof withmathematical certainty. The test to be applied would bethe usual test of the satisfaction of the prudent mindin such matters".14.P.W.1-Mani, (plaintiff/appellant) in his evidence hasdeposed that his deceased mother Alamelu Ammal executed aregistered Will dated 17.09.1986 and that his mother expired on26.10.1988 and after 10 days he had seen the original Will andthereafter, it was missing and therefore, he is filing theregistration copy of the Will-Ex.P.1 and Ex.P.2 is the paper https://hcservices.ecourts.gov.in/hcservices/ publication in regard to the missing of the original Will andthat his last brother Muthusamy died on 09.01.80 and his deceasedbrother share, to be inherited by his mother was bequeathed inthe Will and his mother also filed a suit in C.S.No.353 of 1987and the same was numbered as O.S.No.12852 of 1986 on the file of4th Assistant Judge, City Civil Court and he is the plaintiff inthat suit also and there was already a mortgage on this propertyand it was cleared by his another brother Vinayagam throughCourt, who is second defendant in the suit and his mother livingwith him in 1988. 15.It is the further evidence of P.W.1-Mani that his motherwas in a sound and disposing state of mind till her death andthat he was given 9 acres 55 cents in Elichur Village, whichcovered both wet and dry land and are irrigated by tank, which hehas given it on lease and that he got married in the year 1996and before that he had connection with some other woman by name,Kanniammal and through had a son named Anand and that some 15days prior to his mother's death, she was admitted in theGovernment Hospital and also in the Private Hospital and that thedeath intimation of his mother was informed to D.1 through someother person and he performed the last rites of his mother, whowas living with him.16.The specific evidence of P.W.1-Mani is that after thedemise of his mother, at the time of 8th day ceremony only he cameto know about the Will executed by her and when his sistersremoved the sarees from the box, they took out the Will and theygave that to Vinayagamurthi and he has mentioned about this tohis counsel but he does not know whether there is a reference inthe plaint about the information given by his sisters in regardto the Will and six sisters were present at the time of 8th dayceremony and the Will was a typed one and his mother signaturewas also there and he does not know there was any recital in thedocument to show who had typed it and Munusamy Naidu, Rajendranand Palani attested the Will and that he has working as Conductorin the Transport Corporation in Anna Nagar Depot and thatRajendran is now working as Checking Inspector and the attestorPalani is his friend and the other attestor is only Kuppusamy andnot Munusamy Naidu and he is residing opposite to his houseVillivakkam and that his mother knew all the three attestors andthey also knew about his mother's family and that it is notcorrect to say that his mother is not capable of going alone andexecuting a Will.17.According to the evidence of P.W.1-Mani, the Will wastaken out from the Box and it was given to him and that originalwas kept only in the Villivakkam house and that Will wasregistered in Ambattur Office and he does not know about who tookhis mother to the Sub Registrar Office and he did not enquire the https://hcservices.ecourts.gov.in/hcservices/ attestors who gave instructions for execution of the Will and hedoes not know in which place the Will was written and he does notknow who gave the recitals to the Will and that the Will wassigned by Alamelu Ammal and that the original Will was shown tohis sisters but not to his brothers and there is no specificreason for not informing to his brothers. 18.P.W.1-Mani in his cross examination has specificallystated that in Ex.P.1-Will, the signature of his mother is seenas "Alameluammal" and he deny the suggestion that the Will wasnot executed by his mother and that he had noted the details ofthe Will in a small notebook paper which is not available now andit is not true to say that he only typed the certified copy ofthe Will-Ex.P.1 and got it signed by the Office and thesignatures found in Ex.C.1 and D.1 to D.4 are one and the same anit is not true to say that he forged the signature of his motherand only to grab at the property, he created the Will.19.P.W.2-Kuppusamy in his evidence has stated that theplaintiff's house is opposite to his house and the plaintiff'smother requested him to attest the Will and she also requestedhim to come to the Sub Registrar's Office and himself andRajendran have signed as attesting witnesses and that they wentto the Sub Registrar's office at about 11.30 a.m. but theregistration was done around 2.30 p.m. and that the plaintiff didnot come with him to the Sub Registrar's office and two yearsafter the registration of the Will Alamelu Ammal died and that hehas attested as a first attesting witness in the Will, originalof Ex.C.1, before the Sub Registrar's Office, Ambattur.20.In his cross examination P.W.2-Kuppusamy has deposed thatAlamelu Ammal has not discussed with him, her family matters andhe does not remember the day on which Will was executed and thealleged Will was executed on 17.09.1986 and he went to Alamelu'shouse at 10.00 a.m., when she asked him to come at 10.30 a.m.,when he was going out and when he went to her house, theplaintiff's mother, Rajendran and Palani were present and when hewent to her house, the Will was in typed form and he was notinformed as to who drafted the Will and it was typed and the Willwas written in Tamil, containing two pages, on green papers andthat the plaintiff's mother read out the Will and since he askedfor clarification, Rajendran also read out the Will for secondtime and that the Will was written in regard to the houseproperty at Aminjikarai and after reading the Will, plaintiff'smother signed and after that himself, Rajendran and Palani alsosigned and he knew Rajendran when he frequently visitedplaintiff's house and he knew Palani only on that day and theysigned the Will at 10.30 or 10.45 a.m. and they went to the SubRegistrar's Office at Ambattur by bus and they got the bus https://hcservices.ecourts.gov.in/hcservices/ immediately and reached the Sub Registrar Office at 12 noon andhe did not see the plaintiff on 17.09.86.21.It is the further evidence of P.W.2-Kuppusamy that hedoes not remember whether there are any corrections in the Willand that Will was registered at 2.00 or 2.30 p.m. and all of themreturned together and he does not know who brought back theoriginal Will and he did not enquire whether the original Willwas obtained from the Registrar's Office and before entering intothe Box, he has seen the Will and he does not remember the dateand month of the death of plaintiff's mother and he did notinformed the plaintiff about the Will and he revealed about theexecution of the Will on the 8th or 9th day after the death of thetestatrix and that the testatrix did not inform where she keptthe Will and after information to Mani, he took the Will andasked him about the Will and plaintiff himself brought the Willand the plaintiff told him about the loss of the Will about oneyear or two months.22.D.W.1-Viswanathan/first defendant in his evidence hasdeposed that in the Will property, his mother, the plaintiff,second defendant and four unmarried sisters were living and hisfather filed a maintenance case and as the plaintiff wasadministering the entire estate, he paid the amount to his fatheras ordered by the Court and his father often used to come to theWill property and in 1979, there was a partition in their familyat Kunrathur and the partition was effected at the request of theplaintiff and his mother and the partition took place in thepresence of his father-in-law, Govindadass Reddiar, Mohan [who isson of his maternal uncle and who is also his sister's husband],Gouraiah, the co-brother of Govindadas and his relative oneThambiah and firstly it was decided to divide the Will propertyinto fair co-shares and the plaintiff did not want the houseproperty and he was very particular about the cultivable landsand he was given lands at Elichur.23.In his further evidence D.W.1-Viswanathan has stated thatsecond defendant was allotted the back portion of the Willproperty and the deceased son was allotted the front portion ofthe Will property viz., 14, Sobbaraya Gramani Street and that hewas allotted the house at 164, Perambur Barracks Road, Vepery andthat the partition was not registered and accepted by all theparties and that they are in possession and enjoyment of theproperties allotted to each one of them.24.The evidence of D.W.1-Viswanathan is to the effect thathis mother was not in possession of the Will property and thatthe Will is a concocted one and the signature in Ex.C.1 is notthat of his mother and in Ex.P.1, there is no mention about themortgage debt and in other documents it has been so stated and in https://hcservices.ecourts.gov.in/hcservices/ the partition Will and in the release deed his parents have alsosigned and his parents also signed in the second panchayat andthe partition deed and release deed are with the plaintiff, andthe draft of the second panchayat is with Govindadas Reddiar andthat the said Govindadas signed as witness in the draft of thesecond panchayat and if these documents are filed by plaintiff,it will be known whether his mother has signed in Ex.P.1.25.D.W.1-Viswanathan in his cross examination has statedthat after his mother's death, he came to know about the Willonly after the petition was filed and he cannot say whether thesignatures found in Ex.D.4 and D.3 are that of his mother andsince his mother had not signed in Ex.D.3 and D.4 in hispresence, he cannot identify them and he is not able to identifythe signature found in Ex.C.1 and it is not true to say thatEx.P.1 Will is a genuine one.26.It is the specific evidence of D.W.2-Govindadas in 1979,he has conducted a panchayat and according to the panchayat,Muthuswamy took the house in the front and was to take care ofthe mother and Mani was allotted 9 acres of land out of which, 2acres were set apart and the income therefrom was to be given tothe mother and in addition, a sum of Rs.50/- for expenses andparties acted according to panchayat and after the secondpanchayat, first and second defendants did not sign the originalfinal agreement though they have signed the draft Ex.D.8 and oneof the panchayatars in 1979 was his wife's sister's husband andfrom him, the panchayat agreement was taken away by Mani.27.Ravindran, a junior Assistant of Sub Registrar's Office,Ambattur in his evidence has stated that one Alameluammal hadexecuted a Will on 17th Sept. '86 and registered it on the sameday and that is contained in Vol.No.20, Book 3 at page 45 and 46maintained in their office and Ex.C.1 is the Xerox copy of thesaid pages of the register [the original of Ex.C.1 which iscontained in the ledger book was shown to the other side].28.The learned counsel for the appellant/plaintiff urgesthat Ex.P.1-Will dated 17.09.1986 will have to be tested at thearm chair of the testator and it is the evidence of P.W.2-Kuppusamy that he has attested the Will of Alameluammal, as afirst attesting witness and that the appellant/plaintiff has inhis evidence deposed that signature found in Ex.C.1 and D.1 toD.4 are one and the same and that the appellant/plaintiff hasgiven paper publication notice Ex.P.2 about the loss of the Willon 09.01.1989.29.The power of the Court to compare signature is specifiedunder Section 73 of the Indian Evidence Act. https://hcservices.ecourts.gov.in/hcservices/

30.The first defendant while he was alive in his writtenstatement has averred among other things that his grandfatherPallur Kanniappa Gramani had purchased the properties from hisself acquisition and that his grandfather executed a settlementdeed in respect of the said properties giving life interest infavour of his son Ponnusamy Gramani and Alamelu Ammal andthereafter in favour of the sons of Ponnusamy Gramani absolutelyi.e. in favour of grandsons of Kanniappa Gramani and at the timeof settlement only one grandson was born viz., himself andthereafter his brothers were born and that the settlement speaksof male heirs only to enjoy the properties and by virtue of thesaid settlement deed of his grandfather Kanniappa Gramani,himself, second defendant and the appellant/plaintiff andP.Muthuswamy should enjoy absolutely and by means of a ReleaseDeed dated 20.03.1973 Alamelu Ammal and Ponnusamy Gramani,parents of the first defendant relinquished their rights infavour of their sons viz., the first defendant, second defendantP.Vinayagam, appellant/plaintiff P.Mani and P.Muthusamy.31.Further it is the case of the first defendant in hiswritten statement (later died) that the document dated 17.3.1979was prepared in regard to the mode of division agreed to betweenthe parties and actually effected already and that the concernedindividuals have taken possession of the properties so alleged toeach one of them and were enjoying the same by receiving therents and income and making improvement by getting loans and thaton 09.01.1980, the 4th son Muthuswamy died as bachelor leavingbehind him his brothers, first defendant, second defendant andthe appellant/plaintiff as his sole LRs to succeed his estate andthat O.S.No.5032 of 1982 was filed on the file of City CivilCourt at Madras by Alamelu, mother to get the 1/4th share ofdeceased son Muthuswamy and it was dismissed etc. 32.The averment of the first defendant in the writtenstatement is also to the effect that Alamelu filed OP andconverted into original suit in O.S.No.673 of 1984 againstrespondents 1 and 2 before the 7th Assistant Judge, City CivilCourt and when during its pendency, the said Alamelu filed thesuit for partition in C.S.No.353 of 77 on the file of High Courtfor allotting the 1/4th share of son Muthuswamy, [allotted toMuthuswamy on 27.3.1987] and also directing to pay mesne profitof Rs.51,870 and cost of the suit etc. The suit C.S.No.353 of1987 and O.S.No.673 of 1984 and all the applications got abatedand dismissed on account of the death of Alamelu Ammal and fornot taking further steps.33.In T.O.S.No.20 of 1990 proceedings, the secondrespondent/second defendant has not appeared in person or by anAdvocate, as seen from the records. However, the seconddefendant, who is the second respondent in the present appeal https://hcservices.ecourts.gov.in/hcservices/ contends that the Will is a nullity, since under Section 30 ofthe Hindu Succession Act, the testator should make a declarationof her property in the said Will under Section 59 of the IndianSuccession Act and also the testator has to make a declaration ofa property, impliedly meaning the property capable of alienationand on the date of the Will, the testatrix had no property leavealone capable of alienation and that the Will is not a genuineone and there are many suspicious circumstances for rendering theWill a nullity.34.The categorical stand of the second respondent/seconddefendant before this Court is that the testatrix Alameluammalhad signed the draft agreement Ex.D.8 for partition of all theproperties including the Will property under Ex.D.8 andtherefore, it is clear that Alameluammal has opted for partitionand not for executing the Will and in the Will Ex.P.1 purportedto have been executed by Alameluammal, her signature differs fromthat of Ex.D.8 draft agreement.35.It is pertinent to point out that the firstrespondent/first defendant (deceased) has also taken a plea inthe written statement that the alleged Will was obtained by theappellant/plaintiff under duress, coercion and undue influenceand that the appellant/plaintiff has played fraud and obtainedthe Will on fraud and collusion.36.The learned counsel for respondents 3 to 10 submits thatafter Alameluammal losing the daughter Geetha, she was not insound mind and that was taken advantage by theappellant/plaintiff and on the date of executing the Will heavailed the leave, which has given room for theappellant/plaintiff to play mischief and in order to make gain,he forged the Will and that the suspicion is, the Will is withhim and that the appellant/plaintiff has not filed the saidoriginal Will and with the help of his friends theappellant/plaintiff has created the Will and that in Ex.D.8 draftagreement all are signed and that there is variance of signatureof Alameluammal found in Ex.P.1 and that of Ex.D.8 draftagreement.37.The learned counsel for the appellant/plaintiff submitsthat the appellant/plaintiff as propounder of the Will he has nottaken any part and that Section 63 and Section 68 of the EvidenceAct have been complied with and that the appellant had no idea ofthe Will and in fact the first respondent/first defendant tookonly a plea of duress, coercion and undue influence in regard tothe Will, in the written statement and therefore, the learnedSingle Judge has wrongly entertained a doubt as to whether thesignature found in Ex.P.1 Will was that of the testatrix viz., https://hcservices.ecourts.gov.in/hcservices/ Alameluammal because of the reason that in Ex.D.8, she has signedas "Alammelummal" in Tamil.38.We have heard the learned counsel for the parties andnoticed their respective contentions.39.It is to be noted that any and every circumstance is nota suspicious circumstance, in our considered view. However, acircumstance would be suspicious when it is not normal or is notnormally expected in a normal situation or is not expected of anormal individual. As a matter of fact, if a Will is surroundedby suspicious circumstances, the removal of which is the burdenof the propounder. No presumption can be drawn that the Will indispute is the last Will of the testatrix where there aresuspicious circumstances, the Court would naturally expect alllegitimate suspicion should be totally removed before thedocument is accepted as lost Will of the testatrix. It is to beborne in mind that one must adduce evidence evidence to explainall suspicious circumstances in order to remove any doubt that islikely to linger in the mind of Court.40.It is needless to state that the Will has to be provedlike any other document and the real test to be applied is theusual test of the satisfaction of the prudent mind in thesematters.41.In Tulsibai V. Ramkunwarvai (1989) 2 M.P.W.N. 25 at 40,it is observed that "if a party writes or prepares a 'Will' underwhich he takes a benefit, that is a circumstance that oughtgenerally to excite the suspicion of the Court and it ought notto pronounce unless the suspicion is removed". In reality, theauthenticity of a Will depends on the circumstances surroundingits execution and the quality of evidence that is led in respectof its genuineness as per decision AIR 1959 SC 443 H.VenkatachalaV. B.N.Thimmajamma, already cited. Moreover, it is the settledprinciple that if the propounder succeeds in removing thesuspicious circumstances, the Court would grant probate, even ifthe Will might be unnatural.42.Undoubtedly, Will is one of the most solemn documentknown to law. The mere fact that Ex.P.1-Will dated 17.09.1986 isregistered will not by itself be enough to dispel all suspicionregarding it, where suspicion exists, without submitting theevidence of registration to a closer scrutiny before Court ofLaw. The issue whether the Will relied on by the propounder isproved to be the last Will of the testatrix has to be decided inview of Sec.67, 68 of the Indian Evidence Act, not withstandingthe fact that the opinion of experts and of individualsacquainted with the handwriting of the testatrix are quiterelevant, as per Section 45 and 47 of the Evidence Act. Equally, https://hcservices.ecourts.gov.in/hcservices/ Section 89 and Section 63 of the Indian Succession Act are quiterelevant.43.A reading of the Ex.P.1-Will of the testatrixAlameluammal dated 17.09.1986 spells out that "her son Mani tillnow has been rendering all kinds of help by providing thetestatrix food, clothing's, medical treatment, etc. required byher and she out of love and affection towards him executes andleave this Will and testament". That apart, the Ex.P.1-Will dated17.09.1986 also refers to the appellant/plaintiff after the livetime of testatrix Alameluammal taking the share and absoluteright of her son Muthuswamy out of the total property whichdevolved on her entirely through the said son Muthuswamy and toenjoy the same with absolute rights worth of alienation such asgift, exchange, sale etc.44.The appellant/plaintiff as P.W.1 in his cross examinationhas stated that before he got married in the year 1996, he hadconnection with one Kanniyammal and that he had a son named Anandthrough Kanniyammal and that his mother was living with him andthat some 15 days prior to his mothers death, she was admitted inthe Government Hospital and also in the Private Hospital and thathad did not give information to other brothers etc. and the veryfact that P.W.1 viz., appellant/plaintiff was living withKanniyammal is certainly a definite circumstance which goesagainst the appellant/plaintiff and in this background, a heavycloud is caused as to whether she would have preferred theappellant/plaintiff much to the comes to the conclusion of otherpersons in the family. If really, the appellant/plaintiff hasmaintained his mother deceased Alamelu then he should havecertainly known the Doctors under whom his mother underwenttreatment. No specific period during which his mother fell sickwas not spoken to by the appellant/plaintiff in his evidence asP.W.1. As a matter of fact, the very evidence of P.W.1 viz.,appellant/plaintiff that he does not know the exact money that hespent for medical expenses of his mother shows that he cannot bebelieved in this regard, in our considered opinion. P.W.1-Mani(appellant/plaintiff) in his evidence has deposed that he lostthe Will but he noted the details of the Will in a small notebookpaper. However, it is the specific evidence of P.W.2 Kuppusamythat he saw the Will before entering the box. Therefore, it isquite clear that the appellant/plaintiff has certainly withheldthe production or exhibition of original Will for the reason thatif produced the same will go against him. In fact, it is theevidence of P.W.1-Mani in his cross examination that the Will wasat his house at Villivakkam and he did not have any doubt on anyparticular individual in regard to the loss of the Will. Iforiginal Will had been exhibited in Court then there would havebeen an occasion for proving the signature of Alamelu by seekingthe opinion of a handwriting expert as per Indian Evidence Act https://hcservices.ecourts.gov.in/hcservices/ but that is not the case before us. When the evidence of P.W.1-Mani (appellant/plaintiff) is to the effect that he was incustody of the original Will of Alamelu dated 17.09.1986 and thathe lost the same in the normal course, then suspicion looms largevery much in the case and certainly this is a circumstance whichgoes against the appellant/plaintiff, considering the facts andcircumstances of the case, in our considered opinion.45.The appellant/plaintiff though he was a third defendantin C.S.No.353/87 filed by deceased Alamelu praying for the reliefof declaration and alternatively seeking relief of partitioncertainly in those proceedings, there is no mention of Ex.P.1-Will dated 17.09.1986. D.W.2-Govindadas's evidence is to theeffect that he was studying along with second defendant and isresiding in the back street to the family of appellant/plaintiffand the defendants and that he is their family friends and usedto attend the family functions of respective families and that heparticipated in effecting a partition in 1979 in the family ofappellant/plaintiff and according to him though Ex.D.8-Agreementwas signed by all the parties, the stamp agreement drawn uppursuant thereto, was not signed by D.1 and D.2 because of thefact that house No.14, Subraya Gramani Street was a family houseand had a sandalwood gold frame and was of sentimental value. Infact, it is the categorical evidence of D.W.2-Govindadas thatwhen he saw Alameluammal in Marriage 1986, she did not told himanything about executing any document in respect of the propertyof Muthuswamy and she only complained that she was not receivingany amount and that her son-in-law was jobless. It transpiresfrom Ex.D-8-Agreement that 11 panchayatdars have signed in thesaid document and that Ponnusamy, Alamelummal, Viswanathan,Vinayagam and Mani have signed. However, in Ex.C.1 xerox copy ofthe Will dated 17.09.1986 of the Sub Registrar's Office, Ambatturrefers to the presenter signature in Tamil as Alamelummal. But inEx.P.1 certified copy of registration copy of original Will dated17.09.1986, the signature of the testatrix is mentioned as"Alamelammal in Tamil. On a comparison of the signature testatrixAlamelu made by this Court as per Ex.D.8-Agreement and that ofEx.C.1 certified copy of Will dated 17.09.1986, they do not tallyand in fact the signature found in Ex.D.8 as "Alamelummal" andthat of the signature in Ex.C.1 as "Alamelummal" in Tamil, thereis a marked difference and this creates a suspicion andgenuineness of the said Will.46.As far as the present case is concerned, Section 89 ofthe Indian Succession Act, 1925 will not apply and generally thesame will apply to a case where the Will is so indefinite that itis not possible to give any definite intention to it at all. Infact, a comparison of signature is a way of ascertaining thetruth and definitely a Court is competent to compare disputedsignature/writing of an individual with others which are https://hcservices.ecourts.gov.in/hcservices/ admittedly to be in her writing. Suffice it to point out that"proof to the satisfaction of Court" means implied Judgment ofthe Court and not mere presumption, in our considered view. It isthe evidence of P.W.2-Kuppusamy that he revealed about theexecution of the Will to the appellant/plaintiff on the 8th or 9thday after the death of the testatrix and that the testatrix didnot inform where she kept the Will and after information toappellant/plaintiff, he took the Will who asked him about theWill and that the appellant/plaintiff himself brought the Will tohim and that the appellant/plaintiff told him about the loss ofthe Will after one or two months. However, the evidence of P.W.1-Mani viz., appellant/plaintiff is that at the time of 8th dayceremony of his mother's death he came to know about the Willexecuted by his mother and that his sisters removed the sareesfrom the box and they took the Will and he gave it to secondrespondent/second defendant. Thus in regard to the taking out ofthe Will, there is a clear contradiction between the evidence ofP.W.2-Kuppusamy (attestor) and that of P.W.1-Mani/appellant/plaintiff and as such, it is evident that P.W.1-Mani (appellant/plaintiff) is not coming out with truth, in ourconsidered opinion.47.According to P.W.1 Mani's evidence is that first andsecond defendant alone got the mortgage amount of Rs.10,000/-which was spent for the marriage on second defendant and that hedoes not remember when the property was mortgaged and when thesecond defendant got married.48.D.W.1-Viswanathan (deceased)/first defendant in hisevidence has stated that in the year 1973 his parents andthemselves mortgaged the subject matter of the Will property forRs.10,000/- and after the appointment of receiver viz., thesecond respondent/second defendant, the mortgage property wasredeemed. However, when Ex.P.1-Will dated 17.09.1986 refers topartition and the death of deceased son Muthuswamy in 1980 andalso makes a significant reference to the settlement of 1937 bythe Alamelu's father-in-law Kanniyappa Gramani, the detailsregarding mortgage made in 1973 and its discharge areconspicuously absent in the said Will, which circumstance is notin favour of the appellant/plaintiff. Though a plea is taken bythe appellant/plaintiff that in the written statement of firstdefendant, the Will is challenged only on the ground of duress,coercion, undue influence and fraud and that the respondentsnever disputed the signature of testatrix Alamelu, it is to bepointed out that the Court is entitled to compare the signaturein order to ascertain the truth and in this regard the subjectivesatisfaction of the Court is of primordial importance, on thefacts and circumstances of the present case. https://hcservices.ecourts.gov.in/hcservices/

49.In regard to the other plea raised on behalf of theappellant/plaintiff that dis-inheritance of others cannot be asuspicious circumstance it is to be pointed out that when theappellant/plaintiff takes the benefit under the Will, it is forhim to prove and establish that the Will of the testatrix,Alamelu is natural and free from suspicious circumstances.Another important aspect to be noted in the case is that P.W.1-Mani viz., appellant/plaintiff has availed leave on 17.09.1986,the day on which the Will of Alamelu got registered in the SubRegistrar's Office. Though P.W.1-appellant/plaintiff in hisevidence has deposed that he availed the leave on 17.09.1986 forthe purpose of visiting his Village, his evidence is hardly to bebelieved, in the considered opinion of this Court. Admittedly, atthe time of Will dated 17.09.1986 Alamelammal, the mother ofP.W.1-appellant/plaintiff was about 70 years old. In fact, thoughP.W.1-appellant/plaintiff has stated in his evidence that he hasnot found out to whom his mother gave instructions for preparingthe Will and that he does not know as to who typed the Will andthough P.W.2-Kuppusamy in his evidence has stated that he was nottold as to who drafted the Will etc., their evidence are notworthy of acceptance by this Court, in our considered opinion. Asa matter of fact, P.W.2-Kuppusamy and the second attestingwitness Palani and the third attesting witness Rajendran are onlyinterested persons [P.W.2 residing opposite to P.W.1's house,Rajendran, the attestor working as Checking Inspector in theTransport Corporation and other attestor, Palani being a friendof P.W.1]. Furthermore, a perusal of signature of Alamelammal inTamil found in Exs.D.2 to D.4 are quite different from that ofEx.C.1 Xerox copy of the Will produced by witness Ravichandran,Junior Assistant of Sub Registrar's Office, in our consideredopinion.50.Looking at from any angle and in the light of ourdetailed discussions mentioned supra and on consideration ofavailable material evidence on record, we are of the consideredopinion that the appellant/plaintiff as propounder of the Willhas not explained the suspicious circumstances surrounding theexecution of the Will and in the case on hand, theappellant/plaintiff has failed to discharge his onus as requiredby law that the said Will dated 17.09.1986 was executed by thetestatrix, Alamelu and the unnaturalness of the Will in questionis a good reason for refusing the grant of probate and in thatview, the OSA fails and the same is dismissed, confirming theJudgment passed learned Single Judge in T.O.S.No.20 of 1990 dated24.01.2001. Bearing in mind the facts and circumstances of the https://hcservices.ecourts.gov.in/hcservices/ case, the respective parties are directed to bear their own costs. Consequently, connected miscellaneous petitions are alsodismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsglToThe Sub Assistant Registrar,Original Side,High Court, Madras.1 cc To M/s.Sarvabhuaman Associates, Advocate, SR.8854.2 cc To Mr.S.Sathiadoss, Advocate, SR.8890.1 cc To Mrs.C.R.Rukmani, Advocate, SR.9061.O.S.A.No.379 of 2001 JRG(CO)SKY 28.02.2008