K. Geetha, V. Jayanthi and S. Kothandapani vs V. Vasudevan and Others

R. Banumathi, J.—Aggrieved against the dismissal of the Testamentary Suit, unsuccessful plaintiffs have preferred this appeal.

The dispute is in respect of the Will executed by Dr.Vijayaranga Mudaliar on 20.11.1991. The genealogy of the parties is as under:

Dr. Vijayaranga Mudaliar

(06.01.1992)

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_____________________________|___________________________________

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Jagadeesan Narayanamoorthy Sekar Kannan [D-2] Vasudevan [D-1] Jamunabai [D-3]

Son thro'' [D-5] [D-6] Geetha [P-1] =Jayanthi [P-2] = Kodandapani

1st wife[D-4] (Contesting [P-3]

(eldest son) Defendants)

For convenience, parties are referred to as per their rank in the suit.

The case of the plaintiffs is that the Testator Vijayaranga Mudaliar owned self acquired properties at Sriperumbudur and Chennai and he had

executed the Will on 20.11.1991 out of his own volition and free will and in a sound disposing state of mind. P.W.s 2 and 3 Dilip and Raju are the

Attestors to the Will. Further case of the plaintiffs is that under the Will, the properties were bequeathed to Kannan and Vasudevan and no

properties have been given to the Defendants 1 to 3. Wives of Kannan and Vasudevan and Kothandapani, husband of the daughter, Jamunabai

who are plaintiffs 1 to 3, have been appointed as Executors of the Will. Undertaking to duly administer the property, plaintiffs sought probate of

the Will.

Defendants 5 and 6 have filed Caveat and finding that the Defendants have caveatable interest, the Testamentary OP was converted as suit.

Contesting Defendants 5 and 6 filed Written Statement contending that Vijayaranga Mudaliar was suffering from brain tumour and was seriously ill

since September 1991 and was admitted in Best Hospital, Chennai and nobody was allowed to see him and Vijayaranga Mudaliar died intestate

and therefore, all rights available with regard to movable and immovable properties are liable to be partitioned among the sons and daughters.

Contesting Defendants 5 and 6 further alleged that the alleged attesting witnesses in the Will are close dependents of the beneficiaries and they are

not responsible persons or elderly members of the community. It was further alleged that the suit Will was brought into existence after legal

consultation. Will is surrounded by suspicious circumstances, since the Testator was in an incapacitated mind at the time of execution of the alleged

Will and there is no genuineness in the Will.

On the above pleadings, four issues were framed. The first plaintiff examined herself as PW-1 and Attestors were examined as P.W.s 2 and 3.

Defendants 5 and 6 examined themselves as D.W.s 1 and 2. Ex.P-1 - Will was produced and last page of the Will was found missing.

Upon consideration of oral and documentary evidence, the learned Single Judge has held that missing of last page of the Will is a suspicious

circumstance, which was not properly explained. Referring to evidence of P.W.s 2 and 3, the learned Single Judge has held that P.W.s 2 and 3

have signed only as identifying witnesses on the reverse of the first page of the Will and their evidence being silent as to their attestation in the last

page of the Will. It was further held that evidence of P.W.s 2 and 3 would not prove due execution and attestation of the Will. Pointing out that

Vijayaranga Mudaliar was a methodical person, regularly writing diary, the learned Single Judge held that absence of entry in the diary indicating

writing and execution of the Will on 20.11.1991 is a suspicious circumstance, which was not dispelled by the plaintiffs. Testator signature as

Vijayarangam"" instead of ""Dr.Vijayaranga Mudaliar"" was also found to be one of the suspicious circumstance.

Assailing the findings, the learned Counsel for the plaintiffs interalia raised the following contentions:

The Will being a registered one, solemnity has to be attached to the official act of Registration duly performed by the Sub Registrar;

P.W.s 2 and 3 have consistently stated that the Testator has understood the contents of the Will and that they have attested and P.W.s 2 and 3

were not examined on those aspects; Circumstances held to be suspicious by the learned Single Judge are not genuine suspicions so as to throw

doubt upon the genuineness of the Will.

The learned Counsel has placed reliance upon Madhukar D. Shende Vs. Tarabai Aba Shedage, ; Seth Beni Chand (Since Dead) Now by L.Rs.

Vs. Smt. Kamla Kunwar and Others, ; Girja Datt Singh Vs. Gangotri Datt Singh, ; K. Venkataramiah Vs. A. Seetharama Reddy and Others, ;

Gurdev Kaur and Others Vs. Kaki and Others, ; Senthil Kumar, represented by guardian Chockalinga Mudaliar and Saraswathi Vs. Dhandapani,

Senthilvel, represented by father and natural guardian and Vaidhiyalinga Mudalair, .

Onbehalf of the appellants, C.M.P. No. 116/2001 has been filed under Order 41 Rule 27 CPC to receive last page of the Will as additional

evidence. The learned Counsel submitted that for rendering substantial justice, an opportunity has to be given to the plaintiffs, by receiving

additional evidence. Placing reliance upon a number of cases, it was submitted that when something remains obscure, the Appellate Court has to

receive additional evidence for rendering justice.

The learned Counsel for the Defendants 5 and 6 contended that the Testator being a methodical person, missing of last page of Will throws

doubts on the genuineness of the Will. Drawing our attention to the recitals in the Will, the learned Counsel submitted that no better provision was

made to Defendants 5 and 6 and while so, exclusion of Defendants 5 and 6 is unnatural. Assailing the evidence of P.W.s 2 and 3, it was submitted

that they had no animus attestandi to attest the Will. The learned Counsel has placed reliance upon - Natha Singh and Others Vs. The Financial

Commissioner, Taxation, Punjab and Others, ; 2006 (5) CTC 351 [Robert Prabhakar v. David Ebenezer]; 2006(5) CTC 332 [Rengasamy v.

Rugmini and Ors.]; AIR 2001 SC 134 [Mahavir Singh v. Naresh Chandra and Anr.].

The main contention of the Defendants is that the suit Will was not executed by the Testator out of his own volition and free will and the Will is

surrounded by suspicious circumstances and that plaintiffs are not entitled to probate.

Execution and Attestation of the Will:

It is first of all necessary for the plaintiffs to prove the valid execution and attestation of the Will. Let us consider whether the plaintiffs have proved

valid execution and attestation of the Will as per the provisions of the Evidence Act and the Indian Succession Act as well. The Will of course, is a

registered one, registered on 20.11.1991. Merely because the Will is a registered document, no solemnity can be attached to the same.

Importance of registration of a Will during life time of a Testator cannot be underestimated. But it cannot be said that the Registration

endorsements by itself would ""completely"" prove that the document was read over to the Executant and understood by him. Thus the registration

itself is not a proof of testamentary capacity.

Considering the effect of registration of Will, in Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another, , the

Supreme Court has held:

If a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a

Will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of

registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner

that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter

he admitted its execution and signed it in token thereof, the registration Will dispel the doubt as to the genuineness of the Will. But if the evidence

as to registration shows that it was done in a perfunctory manner, that the officer registering the Will did not read it over to the testator or did not

bring home to him that he was admitting the execution of a Will or did not satisfy himself in some other way (as, for example, by seeing the testator

reading the Will) that the testator knew that it was a Will the execution of which he was admitting, the fact that the Will was registered would not

be of much value. Registration may take place without the executant really knowing what he was registering. AIR 1930 24 (Privy Council) and

Surendra Nath Lahiri Vs. Jnanendra Nath Lahiri, and Girja Datt Singh Vs. Gangotri Datt Singh, . Relied upon.

In Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao and Others, in para 32, the Supreme Court has held as : ""The burden of proof that the

Will has been validly executed and is a genuine document, is on the propounder. The propounder is also required to prove that the testator has

signed the Will and that he had put his signature out of his own free Will having a sound disposition of mind and understood the nature and effect

thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus

would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a

signature of a testator alone would not prove the execution thereof if his mind may appear to be very feeble and debilitated. However, if a defence

of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende Vs. Tarabai Aba Shedage, and

Sridevi and Others Vs. Jayaraja Shetty and Others, . Subject to above, proof of a Will does not ordinarily differ from that of proving any other

document"".

In various decisions, the Supreme Court has pointed out the essential facts on proof of which, the onus on the propounder is discharged. The

earliest decision to be referred to in this regard is H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, , in which the Apex Court has laid

down law as under:

However, there is one important feature which distinguishes Wills from other documents. Unlike other documents the Will speaks from the

death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say

whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document

propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills the Court Will start on

the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will

was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect

of the dispositions and put his signature to the document of his own free Will. Ordinarily when the evidence adduced in support of the Will is

disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator''s mind and his signature as required by law, Courts

would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on

proof of the essential facts just indicated.

In Guro (Smt.) Vs. Atma Singh and Others, , this Court has opined:

With regard to proof of a Will, the law is well settled that the mode of proving a Will does not ordinarily differ from that of proving any other

document except as to the special requirement prescribed in the case of a Will by Section 63 of the Indian Succession Act. The onus of proving

the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity

and signature of the testator as required by law is sufficient to discharge the onus. Where, however there were suspicious circumstances, the onus

would be on the propounder to explain them to the satisfaction of the Court before the Will could be accepted as genuine. Such suspicious

circumstances may be a shaky signature, a feeble mind and unfair and unjust disposal of property or the propounder himself taking a leader part in

the making of the Will under which he receives a substantial benefit the presence of suspicious circumstances makes the initial onus heavier and the

propounder must remove all legitimate suspicion before the document can be accepted as the last Will of the testator.

Contention of the Defendants is that signature in Ex.P-1 Will is not the signature of the Testator and that Ex.P-1 is a fabricated document.

Unlike other documents, execution of Will must be proved at least by one of the attesting witnesses. While making attestation, there must be

animus attestandi on the part of the attesting witnesses, meaning thereby, he must intend to attest.

While two attesting witnesses P.W.2 - Dilip (Aged about 21 years in 1991) and P.W.3 Raju (Aged 23 years in 1991) were examined to

prove execution and attestation of Will. At the time of execution of the Will, Vijayaranga Mudaliar was aged 72 years. In his cross examination,

PW-2 has stated that he used to play cricket with the children of Vijayaranga Mudaliar and he was known to the Testator. PW-3, then aged about

23 years, was working under Vijayaranga Mudaliar. In their evidence, P.W.s 2 and 3 have stated that they went to Sub Registrar''s office in an

auto and Vijayaranga Mudaliar handed over the Will to the Sub Registrar and the Sub Registrar had enquired the Testator as to whether he

understood the contents of the Will. P.W.s 2 and 3 have further stated that Testator went through the contents of the Will and signed in each page

of the Will and Sub Registrar had asked them to attest the Will and P.W.s 2 and 3 have put their signature on the reverse side of the first page of

Ex.P-1 in two places. During trial, when P.W.s 2 and 3 were examined, last page of the Will was missing. PW-2 has stated that after the Testator

has affixed his thumb impression on the reverse of first page of Ex.P-1, P.W.s 2 and 3 have again signed on the reverse side of first page of Ex.P-1

​ Will. Evidence of P.W.s 2 and 3 is to the effect that they signed on the reverse side of Ex.P-1 Will as identifying witness, identifying the signature

of the Executant of the Will on the reverse side. Since during trial last page of the Will was missing, last page was neither shown to P.W.s 2 and 3

nor had they chosen to depose about their attestation at the foot of the last page of the Will.

The learned Counsel for the Defendants 5 and 6 has drawn our attention to the format prescribed for the affidavit of a attesting witness under

Form No.56 under Order 25 Rule 4-C of the Original Side Rules of the High Court. The Executant and the attesting witnesses of the said Will

should subscribe their signatures at the foot of the Will viz., in the last sheet. As per Form No.56, paras 2 to 4, the deponent has to swear an

affidavit to the effect that ""the name and signature subscribed at the foot of the Testamentary paper as of the party executing the same is in the

proper handwriting of the executant, subscribed and written at the foot of the Will and the deponent attested the execution of the same"". While

paragraphs 2 and 4 of the prescribed format insist upon the Testator and witnesses signing ""at the foot of the Testamentary paper"", oral evidence

of P.W.s 2 and 3 is to the effect that they have signed on the reverse side of first page of Ex.P-1 Will. As noticed earlier, during trial the last page

of the Will was not at all shown to the attesting witnesses, as it was not at all available during trial.

With anguish, the learned Single Judge has noticed that the affidavit of P.W.s 2 and 3 filed into Court were corrected. In paras 2 and 4 of the

affidavits originally filed, the words ""foot of the Will..."" have been typed. But the same had been corrected later as ""on the reverse of the first page"".

The learned Single Judge has pointed out how the affidavits were corrected later and expressed doubts as to how corrections could have been

made without the order of the Judge. We confirm the conclusion of the learned Single Judge that there was no animus attestandi to P.W.s 2 and 3

and there was no valid attestation.

Section 68 of the Indian Evidence Act postulates the mode and manner in which proof of execution of document required by law is to be

attested, stating that the execution must be proved by at least one attesting witness if an attesting witness is alive, and subject to the process of the

Court and capable of giving evidence. Relying upon Kashibai and Another Vs. Parwatibai and Others, , the learned Single Judge held that P.W.s 2

and 3 are only ''identifying witnesses'' and they are not ''attesting witnesses''. In our considered view, P.W.s 2 and 3, having put their signature on

the reverse side of first page of Ex.P-1 as identifying witness, are not attesting witnesses as their signature were not with ""animus attestandi"".

Considering the meaning of ''attesting witnesses'', in Seth Beni Chand (Since Dead) Now by L.Rs. Vs. Smt. Kamla Kunwar and Others, , the

Supreme Court has held as follows:

By attestation is meant to signing of a document to signify that the attestor is a witness to the execution of the document; and by Section 63(c) of

the Succession Act, an attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document

or after receiving a personal acknowledgment from the executant as regards the execution of the document. Where D and two others had signed

below the thumb impression of the testatrix and D was examined and his evidence showed that he and two others saw the testatrix putting her

thumb mark on the Will by way of execution and that they all signed the Will in token of attestation in the presence of the testatrix, after she had

affixed her thumb-mark on the Will the execution was held proved in terms of Section 63 of Succession Act read with Section 68 of the Evidence

Act.

The learned Counsel for the appellants have contended that P.W.s 2 and 3 could not speak about their signature in the last page of the Will

since the last page of the Will was missing during trial. It was submitted that in any event, the evidence of P.W.s 2 and 3 would satisfy the

requirements of proof of Will u/s 63(c) of the Succession Act. This contention does not merit acceptance. In our considered view, mere putting

signature on the reverse side of the Will as identifying witness would not prove the execution of the Will.

Missing of last page:

C.M.P.No.116/2001 has been filed under Order 14 Rule 8 Original Side Rules to receive Ex.P-1 Will. Noticing missing of last page, the learned

Single Judge found it to be one of the suspicious circumstance not explained by the plaintiffs. In the appeal, CMP No.116/2001 has been filed

under Order 41 Rule 27 CPC r/w Order 14 Rule 8 O.S. Rules to receive the last page of the Will as additional Evidence. In the affidavit, the

second plaintiff has averred that while taking xerox copies, last sheet of the Will was mixed up with other papers and it could not be found during

trial and while she was searching some old papers, the same was found and after contacting the counsel, she has filed application to receive

additional documents. In the affidavit, it is further alleged that inspite of diligent efforts, last sheet of the Will could not be traced out.

Contending that under Order 41 Rule 27 CPC, the Appellate Court has power to allow additional evidence, not only if it requires such

evidence to enable it to pronounce Judgment but also for any other substantial cause, the learned Counsel for the appellants plaintiffs relied upon

Jaipur Development Authority Vs. Smt. Kailashwati Devi, , P. Purushottam Reddy and Another Vs. Pratap Steels Ltd., , Arjan Singh v. Kartar

Singh, (1951) 2 SCR 258 and K. Venkataramiah Vs. A. Seetharama Reddy and Others, .

Receiving additional evidence is strongly objected to by the contesting Defendants. The learned Counsel for the Defendants 5 and 6 has

submitted that in the absence of evidence showing diligent steps taken, additional evidence cannot be received to fill up the lacuna. In support of his

contention, the learned Counsel placed reliance upon AIR 2001 SC 134 [Mahavir Singh and Ors. v. Naresh Chandra and Anr.].

Order 41 Rule 27 CPC envisages certain circumstances when additional evidence can be adduced. For admitting additional evidence, the

Appellate Court must be satisfied that it could not be produced inspite of due diligence. Before a party is allowed to produce additional evidence

he has to establish that the evidence was not within his knowledge or could not, after exercise of due diligence, be produced by him at the time

when the Decree appealed against was passed. The Appellate Court must be satisfied that the additional document sought to be produced could

not be produced before the trial Court inspite of due diligence.

One of the primary duty of the appellants is to show that there was no want of diligence on their part. In our view such evidence is lacking in

this case. When PW-1 [first plaintiff] was confronted about the missing of the last page, she tried to justify that Ex.P-1 consists of seven pages and

Ex.P-1 contains all the pages. According to PW-1, ""no pages are missing"". It is to be pointed out no steps had been taken by the plaintiffs to

obtain registration copy of the Will so as to make available the last page of the Will before the learned Trial Court. Nor the plaintiffs have

summoned the Sub Registrar though the Will was registered. There is no explanation for not producing even registration copy of the Will. In our

view, when no such diligent steps were taken, additional evidence cannot be received. It is also to be noted that PW-1 in her evidence has stated

that Ex.P-1 Will contains seven pages and no page is missing. On the contrary, in the affidavit sworn by the second plaintiff, the deponent has

averred that while taking xerox copies of the Will, last sheet of the Will was mixed up with other papers and could not be traced and after it was

traced out the same was handed over to the counsel for filing application to receive the additional evidence. In our considered view, evidence of

PW-1 and the averments in the affidavit are irreconcilable.

The learned Counsel for the appellants contended that to render substantial justice, the discretion given to the Appellate Court under Order 41

Rule 27 CPC is to be judicially exercised. Placing reliance upon K. Venkataramiah Vs. A. Seetharama Reddy and Others, , it was further

submitted that Court can allow additional evidence for any other substantial cause and such requirement of the Court would ordinarily arise only

when the defect becomes apparent on the examination of the evidence. In the aforesaid decision, considering the power of Appellate Court to

admit additional evidence, the Supreme Court has held as under:

The object of Rule 27(2) clearly is to keep a clear record of what weighed with the Appellate Court in allowing the additional evidence to be

produced - whether this was done on the ground (i)that the Court appealed from had refused to admit evidence which ought to have been

admitted, or (ii)it allowed it because it required it to enable it to pronounce Judgment in the appeal or (iii)it allowed this for any other substantial

cause. Where a further appeal lies from the decision of the Appellate Court such recording of the reasons is necessary and useful also to the Court

of further appeal for deciding whether the discretion under the rule has been judicially exercised by the Court below. The omission to record the

reason must, therefore, be treated as a serious defect. Even so, the provision is not mandatory and the omission of the High Court to record

reasons for allowing additional evidence does not vitiate such admission. It is true that the word ''shall'' is used in Rule 27(2) but that by itself does

not make it mandatory. ILR 12 Cal 37, Rel. on

Under Order 41 Rule 27 (1)(b) CPC, the Appellate Court may require additional evidence to be produced so as to enable it to pronounce

better Judgment, or for any other substantial cause or like nature. The expression ""or for any other substantial cause"" mentioned in Order 41 Rule

27(1)(b), the requirement must be that of the Court and not of the party. If the evidence could have been tendered in the lower Court and the party

has not been vigilant in producing it, then that evidence cannot be allowed to be let in at the appellate stage on the supposition that a substantial

cause for producing it exists in appeal.

When the Appellate Court finds itself unable to pronounce Judgment owing to a lacuna or defect in the evidence as it stands, it may admit

additional evidence. The ability to pronounce Judgment is to be understood as the ability to pronounce Judgment satisfactorily to the mind Court

delivering it. It is only a lacuna in the evidence that Will empower the Court to admit additional evidence [See Municipal Corporation for Greater

Bombay Vs. Lala Pancham of Bombay and Others, ; Mahavir Singh v. Naresh Chandra AIR 2001 SC 134 : 2001 (1) SCC 309]. But a mere

difficulty in coming to a decision is not sufficient for admission of evidence under this rule [Mahavir Singh v. Naresh Chandra AIR 2001 SC 134 :

2001 (1) SCC 309].

We find no justification to receive additional evidence. Though the plaintiffs firmly contended that the Will was a registered document, plaintiffs

had not taken steps to produce the registration copy of the Will. The learned Single Judge found missing of the last page as one of the suspicious

circumstance. Receiving additional evidence in the appellate stage would have the effect of nullifying that finding. We are of the view that additional

evidence is not required since even by receiving additional evidence, the surrounding suspicious circumstance cannot be dispelled.

Suspicious circumstances:

Let us now turn to the various suspicious circumstances urged. We have already pointed out that the learned Single Judge was of the view that

there were several suspicious circumstances attending to execution of the Will and free disposition.

The law is well-settled that if there is suspicious circumstance about the execution of the Will, it is the duty of the person seeking declaration

about the validity of the Will to dispel such suspicious circumstances. In this connection, reference may be made to the decision of the Supreme

Court in Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another, . It has been held in the said decision that if a Will

being registered and having regard to the other circumstances, is accepted to be a genuine, the mere fact that the Will is a registered Will it Will not

by itself by sufficient to dispel all suspicions regarding the validity of the Will where suspicions exist. In H. Venkatachala Iyengar Vs. B.N.

Thimmajamma and Others, , it has been held in the said decision that where the propounder was unable to dispel the suspicious circumstances

which surrounded the question of valid execution and attestation of the Will, no letters of administration in favour of the propounder could be

granted.

Observing that whenever there is any suspicious circumstance, an obligation is cast on the propounder of the Will to dispel suspicious

circumstance, in Gurdial Kaur and others Vs. Kartar Kaur and Others, , the Supreme Court has held as follows:

The law is well settled that the conscience of the Court must be satisfied that the Will in question was not only executed and attested in the

manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of the free volition of the

executant who had voluntarily executed the same after knowing and understanding the contents of the Will. Therefore, whenever there is any

suspicious circumstance, the obligation is cast on the propounder of the Will to dispel suspicious circumstance.

Some of the suspicious circumstances had been pointed out by the Supreme Court in Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao

and Others, , which are as under:

33.There are several circumstances which would have been held to be described by this Court as suspicious circumstances:

(i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will;

(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;

(ii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit.

See H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, ; and Management Committee T.K. Ghosh''s Academy Vs. T.C. Palit and

Others, .

In Ex.P-1 Will, it is alleged that ""Testator has made adequate provision for his other sons viz., Narayanamoorthy and Segar"" and having regard

to the fact that he has not made any provision for his other two sons, viz., Kannan, Vasudevan and daughter Yamuna Bai, the Testator is said to

have executed the Will bequeathing his properties. The statement that Testator has made adequate provision for his other sons Narayanamoorthy

and Sekar and not made provision for other sons and daughter is incorrect. It is not in dispute that under Ex.P-2 Settlement Deed, the Testator has

retained about 5 grounds in Choolaimedu with a view to make provision for his four sons.

The recitals in Ex.P-2 are to the effect that settlor Vijayaranga Mudaliar has divided the ''A'' Schedule Property into six portions marked as A,

B, C, D, E and F as shown in the plan annexed. ''B'' Schedule Property was settled in favour of D-5 Narayanamoorthy. We have perused the plan

annexed to Ex.P-2 - Settlement Deed produced before us. It is not in dispute that the settlor has retained ''A'' Schedule Property and settled C, D,

E and F schedule properties to Sekar (D-6), Kannan (D-2), Vasudevan (D-1) and Yamuna Bai (D-3) respectively and ''B'' Schedule Property to

D-5 ​ Narayanamoorthy. Evidently, Testator had made provision not only for D-5 and D-6 but also for other sons viz., Kannan and Vasudevan

and daughter Yamuna Bai. To put it differently, all the sons and daughter were provided for in Ex.P-2 Settlement Deed. The statement in Ex.P-1

Will that no provision was made for the sons Kannan, Vasudevan and daughter Yamuna Bai is demonstrably incorrect. In the said Will, large

extent of property both in Chennai and in Sriperumbudur were allotted to Kannan, Vasudevan and Jamuna Bai. Situated thus, we find that the

exclusion of other sons is unnatural and that is a suspicious circumstance, which is not satisfactorily explained.

Another suspicious circumstance is the absence of entry in the diary regarding execution of Will. It has been proved and admitted that the

Testator was in the habit of writing diary. We have carefully gone through the various pages of Ex.P-4 Diary and it was noticed that Vijayaranga

Mudaliar had written even minute details like ""purchase of petrol, coconut saplings and money spent on labour for planting coconut saplings'' etc.

Vijayaranga Mudaliar had also written about the accident on 20.09.1991 and his hospitalization in Best Hospital. As observed by the learned

Single Judge, Vijayaranga Mudaliar was a methodical person, who was in the habit of meticulously writing diary. Vijayaranga Mudaliar had also

written about his visit to Lawyer for consultation about writing the Will. While so, it is quite improbable that he would have omitted to write about

the execution of the Will on 20.11.1991. Non mention about execution of Will in the diary is certainly a formidable suspicious circumstance to be

reckoned with.

Let us now revert back to the attesting witnesses. Vijayaranga Mudaliar was a Doctor LMP [Licensed Medical Practitioner]. He was running

medical factory and at the time of alleged execution of the Will, he was aged about 80 years. If really Vijayaranga Mudaliar intended to execute a

Will, the natural conduct might have been to call his elderly friends and relatives to attest the Will. But that was not to be so. As noticed earlier,

P.W.s 2 and 3 are young adults. PW-2 was a playmate of children of Vijayaranga Mudaliar and PW-3 is said to have been employed under

Vijayaranga Mudaliar. Evidence of P.W.s 2 ad 3 that they have been called by Vijayaranga Mudaliar to attest in the Will is certainly a suspicious

circumstance, not being explained.

At times, Vijayaranga Mudaliar used to sign as Dr. Vijayarangam. For instance, in his Gas Transfer Application, he has signed as ''Dr.

Vijayarangam'', whereas in the Will, he has signed only as ''Vijayarangam''. The learned Single Judge has pointed out this as one of the suspicious

circumstance. By perusal of Ex.P-2, it is seen that in Ex.P-2 Settlement Deed, Vijayaranga Mudaliar has signed as ''Vijayarangam'' and not as ''Dr.

Vijayarangam''. We are of the view that the mode of signing is trivial and we do not propose to go deep into this aspect.

Placing reliance upon Madhukar D. Shende Vs. Tarabai Aba Shedage, , the learned Counsel for the plaintiffs contended that if evidence

adduced is convincing, satisfying the conscience of the Court and when there is nothing unnatural about the transaction, mere conjectures or

unfounded suspicious circumstances should not be allowed to sway the verdict. It was submitted that D-5 and D-6 being employed and other sons

and daughter not being employed, quite naturally, Vijayaranga Mudaliar would have thought it fit to bequeath the properties and Ex.P-1 is a natural

disposition. In the aforesaid decision, the Supreme Court has held as follows:

The requirement of proof of a Will is the same as any other document excepting that the evidence tendered in proof of a Will should additionally

satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the

matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the Court either believes

that the Will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the

circumstances of that particular case, to Act upon the supposition that the Will was duly executed by the testator, then the factum of execution of

Will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor

survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and

supposition by wayfarers and waylayers. What was told by Baron Alderson to the jury in 1838 (2) Lewis CC 227 may be apposite to some

extent:

The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form

parts of one connected whole, and the more ingenuous the mind of the individual, the more likely was it, considering such matters, to overreach

and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to

render them complete.

The conscience of the Court has to be satisfied by the propounder of Will adducing evidence so as to dispel any suspicious or unnatural

circumstances attaching to a Will provided that there is something unnatural or suspicious about the Will. The law of evidence does not permit

conjecture or suspicion having a place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well-

founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict ​ positive or

negative.

Suspicious circumstances pointed out by the trial Court and discussed by us cannot be said to be unfounded suspicions and suppositions. In

our view, the suspicious circumstances are formidable which the appellants have not dispelled.

We have scrutinized the evidence carefully. The evidence adduced by the plaintiffs falls short of proving due execution and attestation of the

Will. The bald fact of registration which as per the aforesaid decision of Supreme Court in Rani Purnima Devi and Another Vs. Kumar Khagendra

Narayan Dev and Another, , is insufficient, in the circumstances of this case to dispel the suspicious circumstances, which we have enumerated

above. We therefore hold that the suspicious circumstances surrounding the execution and attestation of the Will are not dispelled. In the

circumstances, no probate of the Will could be granted and the appeal is liable to be dismissed.

We therefore, dismiss the appeal, confirming the Judgment of the learned Single Judge in T.O.S.No.10/1996. No costs.