Jambunatha Iyer vs Sankari Animal and Others

Abdul Hadi, J.—16th defendant in O.S. No. 45 of 1983 alone has preferred this second appeal and he having died pending appeal, appellants 2 to 8 have come on record as his legal representatives.

This second appeal relates only to D. schedule property to which 16th defendant claims absolute title under Ex. B2 registered will dated 21.1.1957 executed by his sister, Parvathavarthini, in his favour.

Plaintiff Doraisami''s legal representatives are the respondents in this appeal. The said Doraisamy is the above said Parvathavarthini''s husband Thiagaraja Iyer''s brother. No doubt, the above said property originally belonged to Aruaachala Iyer who is the brother of one Krishan Iyer, the father of the plaintiff and the above said Thiagaraja Iyer. Arunachala Iyer did not leave any issue, out adopted the above said Thiagaraja Iyer as his son. So, the property devolved on Thiagaraja Iyer on the death of Arunachala Iyer. But, on his death oh 14.12.1919, his wife Parvathavarthini was in possession and enjoyment of the said property and pursuant to the compromise decree passed in O.S. No. 5 of 1920, the said property was given to Parvathavarthini for her life and she continued in possession and enjoyment thereof. Though there was dispute in the Court below as to whether Parvathavarthini has secured absolute title to he suit property pursuant to Section 14 of the Hindu Succession Act, the lower appellate Court has held that she has secured absolute title in view of he said provision and no argument was advanced by the respondents in this second appeal regarding the said finding of he lower appellate Court.

Therefore, the truth and validity of Ex. B.2 registered will alone has to be considered in this second appeal, on the footing that the above said Parvathavarthini was he absolute owner of he property given under the will and arguments were advanced by both the Counsel only regarding the same.

On the above said question, the trial Court has held that Ex. B.2 Will is true and valid and dismissed the suit. But, the lower appellate Court reversed the said decision and decreed the suit in favour of the plaintiff in respect of the above said D schedule property. Admittedly the attesters to Ex. B2 are not alive. The scribe of Ex. B2 was examined as D.W.2. The appellant gave evidence as D.W.I. The lower appellate Court has held that the Will has not been proved in accordance with law in view of Sections 68 and 69 of the Evidence Act and also on the ground of certain suspicious circumstances.

5A. The two fold submissions of the Learned Counsel for the appellants, therefore, are:- (1) Section 69 of the Evidence Act alone is attracted and not Section 68 thereof and the lower appellate Court has failed to note that Section 69 of the Evidence Act has been satisfied in the present case and the will is accordingly proved (2) The features mentioned by the lower appellate Court are not suspicious circumstances at all.

Oh the other hand, the Learned Counsel for he respondents reiterates that Section 69 of the Evidence Act is not satisfied and that there are suspicious circumstances, negativing the genuineness of the Will. He also submits that u/s 100 C.P.C. I cannot reappreciate the evidence and come to a different conclusion. In this regard the Learned Counsel (of the appellants submits that the very approach of the lower appellate Court was wrong and necessarily interference u/s 100 C.P.C. is warranted. Both the Counsel also rely on many decisions. I shall advert to them presently.

The relevant portion of Section 69 of the Evidence Act are as follows:-

If no such attesting witness can be found...it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the Handwriting of that person.

In this regard, the recent Division Bench judgment of this Court in Vaidehi v. Govindarajan, (1992) 2 Mad LJ 393 (D.B.) following Ponnuswami Goundan and Another Vs. Kalyanasundara Ayyar and Others, which was approved in Ponnuswami Goundan and Another Vs. Kalyanasundara Ayyar and Others, it has been held that where attesting witnesses were dead, a Will could be proved as per Section 69 of the Evidence Act. The bench, after extracting Section 69 of he Evidence Act observed thus:-

All that is required thus in a case in which no attesting witness can be found is to prove the attestation by bringing on record the evidence of a witness that the attestation was in the handwriting of that person, who was described as the attesting witness and that he had put his signature.

Thus, though Section 69 requires fulfillment of two conditions, viz. (1) proving that the attestation of one attesting witness atleast is in his handwriting and, (2) proving that the signature of the executants is in his handwriting, the emphasis has been laid on the fulfillment of first of he abovesaid two conditions. The reason for such an emphasis can also be gathered from another observation in the judgment of another Division Bench of this Court in the abovesaid I.L.R.57 Mad.662 Ponnuswami Goundan and Another Vs. Kalyanasundara Ayyar and Others, ):

What is secondary evidence? The evidence of somebody who either saw them attest or is familiar with their signatures. We have that evidence here, because, as already stated, there is a witness (P.W. 2) whose evidence has been accepted. He states that the signature of one of the attesting witnesses is his signature. What follows from that? It follows that it is proved that that attesting witness attested the document. What follows from that? A passage from Mr. Starkie in his Law of Evidence, Fourth Edition, page 519, is set out in the judgment of our learned brother as follows: ''The signature of the attesting witness, when proved is evidence of everything upon the face of he instrument, since it is to be presumed that the witness would not have subscribed his name in attestation of that which did not take place.

Therefore, the signature of he attesting witness, having been proved, is evidence of everything, on the face of the document and that he saw the executants make his mark.

(emphasis supplied)

The above passage has also been quoted with approval in another Division Bench Judgment of this Court dated 9.1.1969 in Mohaideen Abdul Kadir v. Mohammed Mohaideen Umma (Appeal Nos. 292 and 458 of 1962).

So, in the light of the above referred to Section 69 and the decisions, it has to be seen whether in the present case, the Will has been proved in accordance with Section 69 of the Evidence Act. The relevant deposition of D.W.2, the scribe, in chief examination is as follows:-

(Matter in vernacular, omitted. Ed.)

(The abovesaid Ramachandran is one of he attesters). In cross- examination he deposed as follows:-

(Matter in vernacular, omitted. Ed.)

From these depositions, the Learned Counsel for the appellants submits that D.W.2 an independent witness, proves he fulfillment of the two conditions stipulated u/s 69 of the Act. On the other hand, the Learned Counsel for the respondents points out that from the abovesaid depositions it could not be necessarily concluded that D.W. was present at the time of the attestation or execution. Particularly he points out that in the latter deposition in cross examination, it is only stated that "and" not

(Matter in vernacular, omitted. Ed.)

But, I find that there is absolutely no cross examination of D.W.2 specifically suggesting that D.W.2 was not at all present at the time of execution and attestation. In the absence of such a cross-examination, there will be no difficulty in concluding that D.W.2 was present at that time and that his evidence satisfied both the requirements of Section 69 of the Evidence Act.

In this regard, the lower appellate Court has made a totally wrong approach to the case, particularly in having made the following observation and relying on (1984) 2 Mad LJ 160, Pichali Pillai v. Krishnaswami:-

(Matter in Vernacular omitted. Ed.)

The lower appellate Court, thus, went on the wrong assumption that D.W.2 the scribe was also claimed to be an attesting witness. The Learned Counsel for the appellants, before me, does not also advance such a case. He only submits that since the attesting witnesses are dead. D.W. proves the abovesaid requirements u/s 69 of the Evidence Act. The lower appellate Court also should have made only such an approach, if such an approached been taken it would not have come to the conclusion it reached. In view of such a wrong approach, the Interference by this Court in second appeal is justified. The supreme Court also has reiterated this position in Jagdish Singh Vs. Natthu Singh, , wherein it has held that where the findings by the Court of facts are vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings.

Apart from the above referred to evidence given by D.W.2 in the light of Section 69 of the Act, the evidence of D.W.I also could equally help the appellants to prove their case. His deposition in chief examination is as follows: -

(Matter in vernacular omitted. Ed.)

Here again even though D.W.I is the legatee under the Will and hence may be dubbed as interested witness. It should be noted that the abovesaid evidence given by D.W.I that he resides alongwith the attestor while he was undertaking his studies, that consequently he knew the signature of the attestor and that the signature found in Ex. B.2 is only that of he said attestor, remain unchallenged in the cross-examination. Further, from the cross-examination, it is also found that the abovesaid attestor Ramachandra Iyer is the uncle of D.W.1 and so also it could be concluded that he knew the signature of the said attestor. These material features have been overlooked by the lower appellate Court. Even assuming that a witness is interested witness, his evidence given in chief examination cannot be ignored on the footing that he is an interested witness, when that evidence has not been particularly challenged in the cross-examination. In view of this non-consideration also of the abovesaid material feature by the lower appellate Court, interference u/s 100 C.P.C. is warranted in the light of the abovesaid Supreme Court decision.

No doubt, the Learned Counsel for the respondents in this regard argues that the appellants should have examined Narayanan, the son of the abovesaid attestor since with reference to whom he has deposed as follows:-

(Matter in vernacular omitted. Ed.)

But simply because the said Narayanan has not been examined, it cannot be said that the evidence of D.W.l, the nephew of the said Ramchandran, cannot be true, particularly when there is no cross-examination on the above referred aspect.

The Learned Counsel for the appellants also submits that the lower appellate Court has failed to note the significance of Ex. B2 Will, being a registered one. In this connection he drew my attention to Irudayam Ammal and Others Vs. Salayath Mary, (at p.425, Para 6 of AIR) wherein it has been held as follows:-

There is a general presumption about he execution of the Will arising u/s 60 of the Indian Registration Act (vide Mulla''s Indian Registration Act, Seventh Edition, page 256). It is true that registration, by itself in all cases, is not proof of execution, but if no other evidence is available, the certificate of registration is prima facie evidence of its execution and the certificate of the registration officer u/s 60 of the Registration Act is relevant for proving execution. (See discussion in Sarkar''s Evidence, Latest (12th) Edition, page 640). As observed by the Privy Council in AIR 1922 56 (Privy Council) registration is a solemn act and if no other evidence is available, the Court can presume that the Registrar performed his duty of satisfying himself that the document presented to him for registration was duly executed by the executants and the executants was duly and properly identified before him.

He also relies on the decision in Jayalakshmi Ammal v. K. Lakshmi Iyengar, (1992) 2 Mad LW 523 on the above aspect. No doubt in this regard the Learned Counsel for the respondents relies on the decision in Veerayi Ammal v. Minor Masilambani (1990) 1 Mad LW 171, wherein it has been observed thus:-

But a careful reading of the Section along with the related S. 59 and S. 58 would only show that the endorsement purporting to be admission of execution by the testator would be admissible to prove that the testator has made such an endorsement. But such an admission in evidence of the endorsement of admitting execution is only for he purpose of proving that the testator has made such an admission but such admission in evidence of such endorsement will not be conclusive evidence, as indeed it cannot be, that truly it was the testator himself who had made the endorsement admitting execution. In a case when the genuineness of the document itself is questioned such endorsement admitting execution of he document certainly will not prove that indeed the alleged testator himself had made the endorsement. May be if there is other credible evidence regarding executing such an endorsement in the document might be considered to be true.

The said Counsel also relied on the decision in Doraiswami Vs. Rathnammal and Others, where, on he facts of the said case, despite the will being registered, it was held that the execution of the Will had not been proved. But, that was a case where, apart from other features, the only attesting witness examined before the Court had denied his attestation and any knowledge of the execution of the document by the testatrix. Further, taking into consideration the above said decisions, though it cannot be said that registration by itself could prove the genuineness of the Will conclusively, if no other evidence is available, the certificate of registration is prima facie evidence of its execution, pursuant to the above referred to Bench judgment in Irudayam Ammal and Others Vs. Salayath Mary, ).

In this regard, no doubt it has to be seen what is the other evidence in the case, particularly, whether the decision of the lower appellate Court that there were suspicious circumstances, could be sustained at all. One circumstance referred to by the lower appellate Court is that the Will which was executed in 1957 did not see the light of the day at all till 1983 when the suit was filed. But, it mast be noted that the testatrix herself died only on 28.3.1983, and the fact that it was not published before her death cannot at all but put against the appellants since the will comes into force only on her death and before her death she could revoke the Will. In this regard, the following observation of he lower appellate Court is very strange: -

(Matter in vernacular omitted. Ed.)

Since the Will does not come into operation tilt the testator dies, there need be no reference at all to the will if he testator chooses to sell some of the properties given under the Will before his death.

Another alleged suspicious circumstance is said to be the difference in the signature of Parvathavarthini Animal in Ex. B.2 Will and Ex. 4 document. Actually there appears to be no difference at all. That apart Ex. B.2 was in the year 1957 when the abovesaid Parvathavarthini was aged about 50 as per the evidence on record and Ex. B4 was in 1976, that is about 20 years later when the said Parvathavarthini was aged about 70. Further, while in Ex. B.4 she has signed, in Ex. B.6, which is also of the same year 1976, she has only put her thumb impression. It is also in evidence that at the time of Ex. B.4 due to her old age, she had cataract in her eyes. No doubt, the Learned Counsel for the respondents also represents that the deposition of D.W.2 describing that when the Will was written (Matter in vernacular omitted. Ed.) would also show a suspicious circumstance. But, I am unable to see how it could be one such circumstance. It is not necessary that a will should necessarily refer to any debts of the testator. The fact that she has signed below the term and not above, cannot also, be a suspicious circumstance. So, 1 am unable to see any suspicious circumstance at all. When that is so, the registration of he Will does assume importance. This apart, the legal position also has not been correctly appreciated by the lower appellate Court.

In the result, the second appeal is allowed, the judgment and decree of he lower appellate Court are set aside and that of the trial court are restored. However, in the circumstances of the case, there will be no order as to costs.