Muniammal @ Chinnammal and Others vs Rajammal (died), Vasantha, Chinnadurai and Mikkaniammal

Honourable Mr. Justice R.S. Ramanathan

The defendants 1, 2, 6 and 10 are the appellants. The plaintiff/1st respondent filed a suit for declaration and recovery of possession of the suit properties.

The case of the plaintiff/1st respondent was that the suit properties originally belonged to her father Manicka Goundan and he had three wives and the plaintiff/1st respondent was the daughter through his 2nd wife Chinnammal. The 1st wife was Muniyammal and through her, he had a daughter by name Baggiyammal and through the 3rd wife, she had 7 sons and all of them died earlier and she settled one item of the property on the 3rd wife towards her maintenance and after her life time, that property shall revert-back to him and his legal heirs. The 1st defendant/1st appellant was not the legally wedded wife of Manicka Goundan and she was kept as a concubine by Manicka Goundan and the 1st defendant/1st appellant was married to one Ellappan @ Kookalan and through him, she had given birth to 3rd defendant and one Shanmugam and through Manicka Goundan, the 1st defendant/1st appellant gave birth to one Jayaraman, the 2nd appellant herein and Subramanian, who died later and the 2nd defendant/2nd appellant and Subramanian were not the legitimate children of Manicka Goundan, as Manicka Goundan never married Muniyammal @ Chinnammal, the 1st appellant/1st defendant and she was only kept as a concubine and Manicka Goundan was not keeping good health and he was not in sound disposing state of mind for 5 years prior to his death and the defendants 1 to 3 taking advantage of his ill-heath and unsoundness of mind, created Wills and claimed right over the properties and the claim of the 1st defendant/1st appellant that she is the legally wedded wife of Manicka Goundan and she married Manicka Goundan, after the death of her 1st husband was also false and the plaintiff/1st respondent was the legal-heir of Manicka Goundan through his 2nd wife and therefore, she filed a suit for declaration and injunction.

The appellants contested the suit stating that the 1st appellant was not exclusively kept as concubine of Manicka Goundan and she was the legally wedded wife of Manicka Goundan and she married Manicka Goundan 40 years earlier after the death of her 1st husband and Manicka Goundan had three wives and the 1st respondent''s mother was the 1st wife and Pappathiammal was the 2nd wife and the 1st appellant was his 3rd wife and through the 1st appellant, the 2nd appellant and one Subramanian were born and they are the legitimate children of Manicka Goundan and through his 1st wife, the plaintiff alone was born and there was no son by name Gavurappa as alleged by the 1st respondent and in respect of 75 cents in S.No.594/1, which is a part of 3rd item of the suit property, a settlement deed was executed by Manicka Goundan on 26.11.1955 in favour of his 2nd wife Papathi Ammal to be enjoyed by her till her life time and thereafter to be enjoyed by Manicka Goundan and his legal heirs and after the death of Papathi Ammal, the property reverted back to Manicka Goundan and Manicka Goundan enjoyed the property along with the 1st appellant and he was keeping good health and he was in a sound disposing state of mind and during his life time, he executed three Wills, one on 19.08.1968 in respect of items 1 and 4 wherein the 1st respondent was mentioned as his wife and items 1 and 4 were given to the 2nd appellant and another son Subramanian and that Will was a registered one and thereafter, on 12.07.1976 Manicka Goundan executed another Will, which was also registered and under that Will he bequeathed in favour of his son Subramanian 1.27 cents in respect of 3rd item of the property and other properties and after the death of his son Subramanian, immediately thereafter Manicka Goundan while in a sound disposing state of mind executed a Will, dated 14.12.1979 in favour of the 2nd appellant and that Will came into effect, after the death of Manicka Goundan and as per the Will, the suit items 1 to 3 were bequeathed to the 2nd appellant and the 2nd appellant is enjoying the property as his own property and on 14.12.1979 itself Manicka Goundan executed a mortgage in respect of 2nd and 3rd items and the 4th item of the property belonged to the 1st appellant and she settled that property in favour of the 3rd defendant and his brother Shanmugam and Manicka Goundan had no right over the said property and the 1st defendant married Manicka Goundan, after the death of her 1st husband, according to custom of her community and as the 2nd defendant became the owner of the property as per Will, the plaintiff is not entitled to the relief prayed for.

The 3rd defendant claimed right over the 4th item of suit property stating that the property was the property of the 1st appellant/1st defendant and the 1st appellant was given in marriage to Ellappan @ Kookalan and through him, the 3rd defendant and Shanmguam were born and the 1st husband Ellappan @ Kookalan died and thereafter, the 1st defendant married Manicka Goundan and lived as wife of Manicka Goundan and she gave birth to the 2nd defendant and Subramanian through Manicka Goundan and as the owner of the 4th item of the property, the 1st defendant executed a settlement deed in favour of the 3rd defendant and his brother, Shanmugan and Shanmugam also executed a sale deed in respect of half share in the 4th item of the property and the 3rd defendant has become the absolute owner of the property and therefore, the plaintiff has no right over the 4th item of the suit property.

The 4th defendant supported the case of the defendants 1 to 3 and further contended that on 14.12.1979, Manicka Goundan mortgaged items 2 and 3 of the suit property in his favour and after the death of Manicka Goundan, the 2nd defendant was enjoying the suit properties as a owner and the 2nd defendant in his capacity as owner agreed to sell items 2 and 3 in his favour by entering into an agreement of sale, dated 31/01/1981 and the 4th defendant is prepared to get the sale deed executed in pursuant to the agreement of sale. As the suit was pending, the 2nd defendant agreed to execute the sale after the disposal of the suit and the plaintiff has no right.

The defendant 5 to 11 are the legal-heirs of the 3rd defendant and they also supported the case of the other defendants.

The trial Court held that the suit properties are the self-acquired properties of Manicka Goundan and the 1st defendant/1st appellant is the legally wedded wife of Manicka Goundan and she married Manicka Goundan, after the death of her 1st husband and the defendants 2 and Subramanian were born through her to Manicka Goundan and Manicka Goundan executed a Will, dated 14.12.1979 when he was in a sound disposing state of mind bequeathing the items 1 to 3 in favour of the 2nd defendant/2nd appellant and the Will was proved through DW2 and DW3 and therefore, the 2nd defendant/2nd appellant became the owner of the items 1 to 3 and the 4th item of the property was settled by the 1st defendant/1st appellant in favour of the 3rd defendant and his brother, Muthu Goundan and therefore, they became the owners of the suit properties and therefore, the plaintiff is not entitled to any declaration and recovery of possession and dismissed the suit.

The Lower Appellate Court disbelieved the Will, dated 14.12.1979 and held that the Will was not proved through witnesses and the 1st defendant was not the legally wedded wife of Manicka Goundan and the suit properties were the absolute properties of Manicka Goundan and the 1st defendant has no right to execute a Will in respect of 4th item of the property in favour of the 3rd defendant and his brother and the 2nd appellant failed to prove that Will was executed by Manicka Goundan, while he was in a sound disposing state of mind and set aside the judgment and decree of the trial Court and allowed the appeal. Hence, this second appeal.

The following substantial questions of law were framed at the time of admission:-

Whether the Lower Appellate Court is right in rejecting the will under Ex.B9, especially when the same is a registered document and the same having being presented by Manicka Gounder in the office of the Sub- Registrar?

Whether the Lower Appellate Court should not have held that examination of one attesting witness to the will is sufficient and in the present case, the appellants have examined the attestor and the scribe and both of them have deposed as regards the due execution and under such circumstances, whether the lower appellate court ought not to have confirmed the order of the trial court?

Mr. V. Ragavachari, the learned counsel appearing for the appellants submitted that the appellants claimed title to the suit property under the Will, dated 14.12.1979 and the Will was proved through DW2 and DW3. DW2 was a scribe and DW3 was one of the attesting witnesses and the Will was registered one and therefore, the trial Court has rightly held by applying the law as laid down by the Hon''ble Supreme Court that the 2nd defendant /2nd appellant proved the Will by examining one of the attesting witnesses and under the Will, items 1 to 3 were bequeathed in favour of the 2nd respondent and therefore, the 2nd appellant became the absolute owner of the suit property.

He further submitted that the conduct of Manicka Goundan would also make it clear that the Will was executed by him, while he was in a sound disposing state of mind. He further submitted that prior to the Will, dated 14.12.1979, Manicka Goundan had already executed a registered Will on 19.08.1968 in respect of Items 1 and 4 in favour of 2nd defendant and his brother Subramanian, wherein the 1st defendant/1st appellant was described as his wife and the 2nd defendant and his brother were described as sons born to him through the 1st appellant/1st defendant and he also executed another registered Will, dated 12.07.1976 in respect of item 3 and other properties to Subramanian, the son born through the 1st defendant and lastly, he executed a registered Will, dated 14.12.1979 and bequeathed the items 1 to 3 in favour of the 2nd defendant/2nd appellant and the fact that Manicka Goundan already executed two registered Wills would also prove that the Will, dated 14.12.1979 is a genuine document and that was also proved through DW2 and DW3 and there are no suspicious circumstances, while executing the Will. As Manicka Goundan was admittedly living with the 1st defendant and her children born through him Mankica Goundan and thus disinheriting the plaintiff cannot be a ground to disbelieve the Will and that will not be termed as suspicious circumstances and having regard to the fact that Manicka Goundan was taken care of at his old age by the 1st defendant and her son 2nd defendant, he executed a Will in favour of the 2nd defendant and therefore, the Will was a genuine Will and the 2nd defendant got title to the suit properties to the Will.

He further submitted that in respect of 4th item, the property belonged to the 1st defendant and she was granted patta in her name and she settled the property in favour of her sons born through her 1st husband and therefore, the 3rd defendant became the absolute owner of 4th item of the suit property and the Will, dated 14.12.1979 was a genuine one and it was also probablised by the execution of the mortgage deed in respect of 2 and 3 items on the same day by Manicka Goundan in favour of the 4th defendant and therefore, having regard to the fact that the Will, dated 14.12.1979 was a registered one and was duly proved by examining the attesting witness, the Lower Appellate Court erred in disbelieving the Will and erred in holding that the 1st defendant was the legally wedded wife Manicka Goundan.

He also relied upon the following judgments in support of his contention:-

AIR 1995 SC 1684, in the case of Rabindra Nath Mukherjee and another vs. Panchanan Banerjee (dead) by L.R.s and others.

(2001) 9 SCC 726, in the case of E. Madhavi Pallikkaramma & another vs. K.V. Prabhakaran Nair and others.

AIR 2003 SC 3109 = 2003 (8) SCC 537, in the case of Ramabai Padmarkar Patil (D) through L.Rs. and others vs. Rukminibai Vishnu Vekhande and others.

(2004) 11 SCC 320 in the case of P.S. Sairam and another vs. P.S. Rama Rao Pissey and others.

2003 (4) CTC 330 = (2003) 3 MLJ 492, in the case of Saroja and others vs. Chennimalai, Sivanmalai, Ramasamy and Marayammal vs. Ayyasami Pillai and other

(2000) 6 SCC 151, in the case of Palanivelayutham Pillai and others vs. Ramachandran and others.

(2007) 11 SCC 621 in the case of Savithri and others vs. Karthyayani Amma and others.

(2004) 1 MLJ 188 in the case of Dr. Shantha vs. Sharada.

and contended that there were no suspicious circumstances in the execution of the Will and when the scribe has given evidence that he was present when the Will was executed by the executant and attesting witnesses signed in his presence, he can be considered as an attesting witness and one another attesting witness, DW3, was examined and therefore, the Will was legally proved through examination of DW2 and Dw3.

On the other hand, the learned counsel appearing for the respondents submitted that the trial Court without properly appreciating the law regarding the proof of Will and without appreciating the evidence of DW3, who claimed to be the attesting witness, erred in holding that the Will was proved through DW2 and DW3 and DW2 was only a scribe and he cannot become an attesting witness and the judgments relied upon by the learned counsel appearing for the appellants would also make it clear that unless a scribe also described himself as a witness, he cannot become the attesting witness to a Will and the registration of a Will, will not amount to due execution of the Will and as per the provision of section 63 of the Indian Succession Act the Will has to be proved and DW3, the attesting witness has not spoken about the valid attestation as per section 63 of the Indian Succession Act and having regard to the fact that Manicka Goundan used to put his signature in the earlier documents and in the disputed Will, he has only affixed his thumb impression and that would also prove that he was not in a sound disposing state of mind and according to the evidence of DW2 and DW3 and the 2nd defendant, who claims to be legatee under the Will, the legatee took active part in the execution of the Will and considering all these aspects, the Lower Appellate Court has rightly held that the Will was not proved and it does not call for any interference.

He further submitted that the 1st defendant admittedly married one Ellappan @ Kookalan and that was also admitted by her in Ex.A3, Settlement Deed, dated 24.04.1975 and when the 1st defendant was admittedly married to one Ellappan @ Kookalan in the absence of any proof that after the death of her 1st husband, she married Manicka Goundan, she cannot claim the status of the legally wedded wife of Manicka Goundan and the 1st defendant did not enter the box to speak about her marriage and no witness in that locality was examined to speak about the marriage between the 1st defendant and Manicka Goundan and except the statement of Manicka Goundan in the Will, dated 19.08.1968, there is no other evidence to show that the 1st defendant was married to Manicka Goundan after the death of her 1st husband and in the absence of any valid marriage between Manicka Goundan and 1st defendant, the 2nd defendant cannot claim to be the legitimate son of Manicka Goundan and in the absence of any Will, the defendants cannot claim any right over the property and the trial Court having held that all the suit properties were the self-acquired properties of Manicka Goundan, erred in holding that settlement deed executed by the 1st defendant in favour of the 4th defendant was valid and the 1st defendant did not have any title and hence, the 4th defendant will not get any title and therefore, the Lower Appellate Court has rightly allowed the appeal and decreed the suit.

Heard both sides.

In this appeal, we are concerned only with the validity of Ex.B9 Will, dated 14.12.1979. The substantial questions of law were framed only in respect of the said Will.

Further, as rightly submitted by the learned counsel appearing for the respondents that the 1st defendant was the wife of Ellappan @ Kookalan and through him, she had two sons, viz., the 3rd defendant and another person and though the defendants contended that after the death of Ellappan @ Kookalan, the 1st defendant married Manicka Goundan, there was no evidence worthy-name to accept the said contention. The 1st defendant was a competent person to speak about the same, but she did not enter into the box to give evidence about her marriage.

Further, none of the residents in that locality were examined to prove that the 1st defendant married Manicka Goundan, after the death of her 1st husband and Manicka Goundan and the 1st defendant were living together as husband and wife and they were recognized as husband and wife in that locality and therefore, in the absence of such evidence, it cannot be held that the 1st defendant was the legally wedded wife of Manicka Goundan.

Of course, it is not disputed that the 1st defendant was living with Manicka Goundan and it is the contention of the 1st respondent/plaintiff that the 1st appellant was the concubine of Manicka Goundan and through him, the 2nd defendant and Subramanian were born and therefore, in the absence of any proof of valid marriage between Manicka Goundan and the 1st defendant, the 2nd defendant cannot be termed as the legitimate son of Manicka Goundan. Therefore, the 2nd defendant can claim title only under the Will, dated 14.12.1979 and if the Will is not upheld, the 2nd defendant will not get any right over the suit property and the plaintiff being the legitimate daughter of Manicka Goundan is entitled to the declaration and recovery of possession.

Therefore, we will have to see whether the Will, dated 14.12.1972 marked as Ex.B9 was validly proved by the appellants.

In this case, in addition to Ex.A9, the appellants also relied upon two other Wills viz, Ex.B10, dated 19.08.1968 and Ex.B11, dated 12.07.1976.

It is admitted that all the three Wills were registered documents and though Exs.B10 and B11, the two Wills were marked, it cannot be stated that the Wills have been proved as no attesting witnesses were examined to prove the due execution of those two Wills Exs.B10 and B11.

Further, the 2nd defendant/2nd appellant also did not claim any right under the Wills Exs.B10 and B11 and he claimed right only under Ex.B9. According to me, the 2nd defendant also cannot claim any right under Exs.B10 & B11, as there was no proof of due execution of those two Wills in the manner known to law and can succeed only by proving the Will Ex.B9, dated 14.02.1979.

In the judgment reported in 2006 (14) Scale 186 in the case of Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao & others, the Hon''ble Supreme Court has held as follows:-

..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 in 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.

...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 deposition appears to be unnatural or wholly unfair in the light of the relevant circumstances; (iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit.

Therefore, the onus is heavily on the 2nd defendant to prove that the Will has been validly executed as a genuine document.

The case of the 1st respondent/plaintiff was that the said Will was not executed, while Manicka Goundan was in a sound disposing state of mind and he was not having good health for the last five years prior to his death and was not knowing anything and taking advantage of his position, the Will was created by the defendants with the help of DW2 and Dw3. She further contended that Manicka Goundan used to sign his name and that was also evident from the earlier documents and in the disputed document Ex.B9, his signature was not found and only his thumb impression was found and there is no explanation for the same and no reason was stated in the Will Ex.B9, for dis-inheriting the plaintiff, who was the only daughter of Manicka Goundan and these would prove that Manicka Goundan was not in a sound disposing state of mind and the Will was executed in the suspicious circumstances.

The law relating to suspicious circumstance has been dealt with in the judgment reported in 2006 (14) Scale 186 in the case of Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao & others, Scale 186, which is as follows:-

...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 deposition appears to be unnatural or wholly unfair in the light of the relevant circumstances; (iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit.:

Further, in the judgment reported in AIR 1995 SC 1684, in the case of Rabindra Nath Mukherjee and another vs. Panchanan Banerjee (dead) Ly L.R.s and others, it was held as follows:-

..3. A perusal of the two impugned judgments shows that the following were regarded as suspicious circumstances:

(1) Deprivation of the natural heirs by the testatrix.

(2) Identification of the testatrix before the Sub-Registrar by an Advocate of Calcutta who had acted as a lawyer of one of the executors in some cases.

(3) The witnesses to the documents were interested in the appellants.

(4) Active part played by one Subodh, a close relation of Rabindra, one of the executors, in getting execution of the Will. He has been described as ubiquitous.

In the judgment reported in AIR 2003 SC 3109 = 2003 (8) SCC 537 in the case of Ramabai Padmakar Patil (D) and ors. vs. Rukminibai Vishnu Vekhande and Ors., after relying upon the judgment of the Hon''ble Supreme Court reported in AIR 1964 SC 529 [Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee and Ors] and AIR 1959 SCC 443 [H. Venkatachala Iyenger v. B.N. Thimmajamma and Ors], the Hon''ble Supreme Court approved the passage in the judgment reported in AIR 1964 SC 529 [Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee and Ors] held as follows:-

..The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the ae of a will by Section 63, 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 the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstance, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator''s mind, the dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the will tho show that the testator''s mind was not free. In such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might by unnatural and might cut off wholly or in part near relations.

No doubt, disinheriting the legal-heirs and unequal distribution of wealth may not be a ground for suspicion as held by the Hon''ble Supreme Court in the judgment reported in (2004) 1 MLJ 188 in the case of Dr. Shantha Vs. Sharada, (2001) 9 SCC 726 in the case of E. Madhavi Pallikkaramma and another vs. K.V. Prabhakaran Nair & others and (2007) 11SCC 621 in the case of Savithri and others vs. Karthyayani Ammal and others.

Therefore, having regard to the above case laws, we will have to see whether there were any suspicious circumstances in the execution of Will and whether the Will was duly proved by the 2nd defendant.

It was contended by Mr. V.Ragavachari, the learned counsel appearing for the appellants that the Will(Ex.B9) was a registered one and earlier to that Manicka Goundan has executed two registered Wills and therefore, having regard to the past conduct of the testator, it was natural that he was in the habit of executing registered documents and therefore, he executed a registered Will and it was also admitted that he lived in the company of the 1st defendant/1st appellant and her children and the plaintiff never took care of the testator, Manicka Goundan and therefore, it was natural on his part to give the properties in favour of his son, born through the 1st appellant/1st defendant and there was nothing unnatural in bequeathing the properties in favour of his son born through the 1st defendant.

He further submitted that in the Will (Ex.B11), dated 12.07.1976, he did not sign and he only affixed his thumb impression and that would also prove that even in the year 1977 he was not in a position to sign and therefore, the thumb impression found in the Will would not give room for suspicion as Manicka Goundan was not in a position to sign and that was also spoken to by DW3, one of the attesting witnesses and hence, it cannot be presumed that he was not in sound disposing state of mind.

He further relied upon the judgment reported in (2004) 11 SCC 320 in the case of P.S. Sairam and another vs. P.S. Rama Rao Pissey and others, to the effect that when the testator affixed his thumb impression, that cannot be termed as suspicious circumstances, even though he was in the habit of putting signature in writing. Therefore, Mr.V.Ragavachari the learned counsel appearing for the appellants submitted that when the Will was a registered one and it was proved by examining one attesting witness, who has deposed about the valid attestation of the Will and it was also proved by examining scribe and hence, the trial Court has rightly held that the Will was validly proved and once the Will was proved, the 2nd defendant has become the absolute owner of the properties and the 1st plaintiff cannot claim any right over the property and the suit filed by the plaintiff has to be dismissed.

In this case, admittedly the Will (Ex.B9), dated 14.12.1979 contains thumb impression of the testator and it was admitted that Manicka Goundan used to sign his name. Therefore, we will have to see why Manicka Goundan did not sign in the Will and why his thumb impression was obtained.

It was contended by the learned counsel appearing for the appellants that Manicka Goundan was not keeping good health and his hands were shacking and that was spoken to by DW3, one of the attesting witnesses. He also relied the judgment reported in (2004) 11 SCC 320 in the case of P.S. Sairam and another vs. P.S. Rama Rao Pissey and others, wherein the Hon''ble Supreme Court has held that the Will cannot be disbelieved on the ground that only thumb impression was found in the Will and not signature. No doubt, when thumb impression was found in the Will and it was properly explained by the witnesses and evidence was also let in to show that the testator was not in a position to put his signature, then the thumb impression can be accepted and the Will can be said to have been validly executed by the testator as held by the Hon''ble Supreme court in the judgment reported in (2004) 11 SCC 320. But, in this case, there is no evidence to arrive at a conclusion that the testator was not in a position to sign his name and his hands were shacking and therefore, he was directed to put his thumb impression.

It was contended that in Ex.B11, the Will, dated 12.07.1976, the testator put his thumb impression and in that Will he did not sign. According to me, the said document Ex.B11 ought not to have been admitted in evidence as it was not proved in the manner known to law by examining one of the attesting witnesses. Admittedly, Ex.B11 is the Will and without proving the due execution by examining any one of the attesting witnesses, the Will ought not to have been admitted. Hence, we cannot consider Ex.B11.

It is also not in dispute that Manicka Goundan was in the habit of writing his name, while signing the document and as a matter of fact, DW2 the scribe has given evidence that Manicka Goundan was in a position to put his signature at the time of execution of Ex.B9. Therefore, having regard to the evidence of DW2 when Manicka Goundan was in a position to put his signature, there is no explanation why the thumb impression of Manicka Goundan was obtained in respect of Ex.B9.

Further, as held by the Hon''ble Supreme Court in the judgments referred to above, the fact that the plaintiff/1st respondent was excluded and the properties were given to the 2nd defendant and at the time of execution of the Will, Manicka Goundan was aged about 85 years and though, he was capable of putting his signature, his signature was not found and his thumb impression was alone found would cumulatively give rise to suspicion whether Manicka Gounder was in a sound disposing state of mind at the time of execution of Ex.B9.

Further, it is the case of the appellants that on the same day of the execution of the Will (Ex.B9) Manicka Goundan also executed a registered mortgage in favour of the 4th defendant in respect of items 2 and 3 and that mortgage was also registered and that would also prove that Manicka Goundan was in sound disposing state of mind.

A careful comparison of thumb impression found in Ex.B9, the Will and Ex.B13, the mortgage deed, executed in favour of the 4th defendant would also prove that both the documents could not have been executed by Manicka Goundan. Admittedly, as per the evidence of DW2, both the Will and the mortgage deed were written by him on the same day viz., 14.12.1979 and in Ex.B9 the Will, the thumb impression of Manicka Goundan was found in blue ink i.e. the thumb impression was affixed from a stamp pad containing blue ink, whereas the thumb impression found in Ex.B13, the mortgage deed, was from a stamp pad, which contains black ink, which is ordinarily used in the Registrar office. If both the documents were executed simultaneously, there was no necessity for having different ink in the thumb impression found in those documents and there was no explanation by DW2 for the same. Further, no explanation was given for executing Ex.B13 mortgage on the same date in favour of the 4th defendant. Further, the recitals in the mortgage deed would also prove that it was a crated one. It was stated in the mortgage deed that for the purpose of his business the mortgage was executed and it is unbelievable that a person who was aged 85 was doing a business and for that purpose he executed the mortgage especially when there is no proof that he was doing business.

Further, a careful look at the evidence of DW2, one of the attesting witnesses, would also make it clear that he has not proved the attestation in the manner known to law.

As per section 63(c) of the Indian Succession Act, the Will has to be attested in the manner as stated as follows:-

The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular from of attestation shall be necessary.

In this case, if we go through the evidence of DW3, it is clear that his evidence was not in accordance with the provision of section 63(c) of the Indian Succession Act. The Lower Appellate Court has extracted the evidence of DW3 and has rightly come to the conclusion that he has not stated that he signed the document as attesting witness in the presence of the executant and he also say the executant signing the document and he has also stated that as per the dictation of Manicka Goundan, DW2 has written the Will and the Will was in respect of house and Nanja properties and his signature was found in the Will and he did not state that the Will was signed by Manicka Goundan or Manicka Goundan put his thumb impression in the Will in his presence and he has only stated that before the Sub Registrar, Manicka Goundan put his thumb impression. Therefore, the evidence of DW3 also makes it clear that the Will was not properly proved in accordance with the provision of section 63(c) of the Indian Succession Act.

Further, it is seen from Ex.B13, the mortgage deed that the mortgage deed was attested by the 2nd defendant and admittedly, both documents were executed on the same day and registered on the next day. It is also admitted that the witnesses were brought home by the 2nd defendant and he was present at the Registrar Office and that is evident by Ex.B13 wherein he identified Manicka Goundan before the Registrar. Therefore, that would also prove that the 2nd defendant, the propounder has taken active part in the registration of the document and that was one of the suspicious circumstances about the execution of the Will.

The learned counsel appearing for the appellants submitted that the scribe has given evidence about the execution of the Will and it was a registered Will and therefore, the Will has been proved. He also relied upon the judgment reported in (2000) 6 SCC 151, in the case of Palanivelayutham Pillai and others vs. Ramachandran and others, in support of his contention.

As a matter of fact, in that judgment the Hon''ble Supreme Court has made it clear that the scribe can be an attesting witness only if he signed the document as a witness and when he mentioned in the document that he was only a scribe, he cannot be an attesting witness.

Further in the judgment reported in 2003 (4) CTC 330 = (2003) 3 MLJ 492, in the case of Ayyasami Pillai and ors. vs. Marayammal and ors., the Hon''ble Division Bench of this Court relying upon the judgment of the Hon''ble Supreme Court reported in (1962) 1 MLJ 78 in Venkata Sastri''s case wherein the expression, ''attested'' was discussed by the Hon''ble Supreme Court as follows:-

It is to be noticed that the word ''attested'', the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation u/s 3 are:(1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g. to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.

Therefore, the fact that the document was a registered one and the executant has admitted before the Registering Officer about the execution of the document will not prove the due execution of the Will.

In the judgment reported in (2003) 12 SCC 35, in the case of Bhagat Ram and another vs. Suresh and others, the Hon''ble Supreme Court has held that without examining the Registrar, the Registrar cannot be considered as attesting witness and also held that registration of a document does not dispense with the need of proving the execution and attestation of a document, which is required by law to be proved in the manner as provided in Section 68 of the Evidence Act, 1872.

It was also held in the judgment reported in the case of Bhagat Ram v. Suresh, (2003) 12 SCC 35 as follows:-

Registration of a document does not dispense with the need of proving the execution and attestation of a document which is required by law to be proved in the manner as provided in Section 68 of the Evidence Act. u/s 58 of the Registration Act the Registrar shall endorse the following particulars on every document admitted to registration:

(1) the date, hour and place of presentation of the document for registration;

(2) the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent;

(3) the signature and addition of every person examined in reference to such document under any of the provisions of this Act; and

(4) any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.

Such particulars as are referred to in Sections 52 and 58 of the Registration Act are required to be endorsed by the Registrar along with his signature and date on the document u/s 59 and then certified u/s 60. A presumption by reference to Section 114 [Illustration (e)] of the Evidence Act shall arise to the effect that the events contained in the endorsement of registration, were regularly and duly performed and are correctly recorded. None of the endorsements, required to be made by the Registrar of Deeds under the Registration Act, contemplates the factum of attestation, within the meaning of Section 63(c) of the Succession Act or Section 68 of the Evidence Act, being endorsed or certified by the Registrar of Deeds. The endorsements made at the time of registration are relevant to the matters of the registration only (see Kunwar Surendra Bahadur Singh v. Thakur Behari SingH AIR 1939 PC 117 : (1939) 2 MLJ 762). On account of registration of a document, including a Will or codicil, a presumption as to correctness or regularity of attestation cannot be drawn. Where in the facts and circumstances of a given case the Registrar of Deeds satisfies the requirement of an attesting witness, he must be called in the witness box to depose to the attestation. His evidence would be liable to be appreciated and evaluated like the testimony of any other attesting witness.

Therefore, having regard to the fact that the propounder, DW2 has taken active part in the execution of the document. DW3 one of the attesting witnesses has not given any evidence about attestation in accordance with the provision of section 63(c) of the Indian Succession Act and no explanation has been stated for not signing the document by Manicka Goundan, when DW2 has stated that Manicka Goundan was in a position to sign the document and difference in ink in the thumb impression found in Ex.B9 and B13, when those documents were alleged to have executed on the same day and no reason was stated for registering the document on the next day when document was executed on 14.12.1979 and registration took place on 15.12.1979 and no reason was given for disinheriting the plaintiff/1st respondent, all these would prove that the Will was not proved to have been executed by Manicka Goundan, while he was not in sound disposing state of mind and the 2nd respondent failed to prove the Will Ex.B9 and hence, the substantial questions of law are answered against the appellants. In the result, the judgment and decree of the Lower Appellate Court is confirmed and accordingly, the second appeal is dismissed. No costs