Muthuselvi vs Sivagurunathan and Others

R. Banumathi, J.—This Second Appeal is directed against the concurrent finding of the Courts below in A.S. No. 21 of 1989 of Sub Court,

Pattukottai (dated 30.12.1989) and O.S. No. 169 of 1981 of District Munsif Court, Mannargudi (dated 04.01.1988).

The Suit Properties relate to extensive extent of 29.44 Acres comprised in 20 Items - A ''Schedule'' - Solaikulam Village, and ''B'' Schedule -

Two Houses in Solaikulam Village. The Suit Properties originally belonged to Ganesa Vandaiyar. Ganesa Vandaiyar went to Malaysia and earned

huge money out of his business and later returned to India. From out of his money, Ganesa Vandaiyar purchased extensive properties - Suit

Properties in Solaikulam Village. Thus Suit Properties belonged to Ganesa Vandaiyar absolutely.

Case of the plaintiff is that she was affectionately brought up by Ganesa Vandaiyar from her early childhood and she was treated as his own

daughter. Plaintiff was admitted in School in Mangudi Village and later, she was admitted in R.C. School at Pattukottai for further studies. Ganesa

Vandaiyar was showering love and affection upon the plaintiff. In a sound disposing state of mind, Ganesa Vandaiyar had voluntarily executed his

Last Will on 19.04.1975, under which he has bequeathed all his properties in favour of the plaintiff. The Will was duly attested and voluntarily

deposited with the District Registrar, Nagapattinam in a sealed cover. Ganesa Vandaiyar died on 11.01.1978. After the death of Ganesa

Vandaiyar, plaintiff''s next friend - her father reported the death of Ganesa Vandaiyar to the Registrar. On payment of proper fee and production

of death certificate, the sealed cover was opened. As per the Will, plaintiff''s father - her next friend was put in management of the properties

without the power of alienation. Defendants 1 to 3, who are not the residents of the suit village, at the instance of D4 have jointly conspired

together and attempting to interfere with the rights of the plaintiff in enjoyment of the suit properties. On 27.01.1978, the defendants attempted to

dispossess the plaintiff from the suit properties. Hence, the Suit for declaring the plaintiff''s title to the suit properties and for permanent injunction

restraining the defendants from interfering with the possession of the plaintiff.

Denying the plaint averments and right of the plaintiff and further denying the execution of the Will in favour of the plaintiff, D1 had filed written

statement contending that Ganesa Vandaiyar had never executed the Will in favour of the plaintiff. According to D1, deceased Ganesa Vandaiyar

had executed his Last Will on 14.12.1977 in a sound disposing state of mind and bequeathed all his properties to the 1st defendant. The recitals of

the Will direct D3 - Selvanayagam to be in management of the properties and to clear the debts and to hand over the possession of suit properties

to the 1st defendant. Pursuant to the Will, 1st defendant is residing in the suit main house. Ganesa Vandaiyar died on 11.01.1978. Since then the

Will came into force and D3 is in continuous management of the properties. Plaintiff was never in possession of the suit properties at any point of

time. During the last days of Ganesa Vandaiyar, only the 1st defendant was with him, attending to him and getting him treated at a Private Nursing

Home at Thanjavur.

D3 has filed the written statement denying execution of any Will in favour of the plaintiff. According to D3, Ganesa Vandaiyar had already

executed a General Power of Attorney on 28.04.1964 for managing the properties. Pursuant to that Power of Attorney (Ex.B-29), D3 was in

management of the suit properties. Ganesa Vandaiyar had executed his Last Will on 14.12.1977 bequeathing all his properties in favour of D1.

After death of Ganesa Vandaiyar, D1 became the owner of the properties. But the suit properties continued to be managed by D3 as per the

direction in the Will. The minor plaintiff was no way related to Ganesa Vandaiyar; so also Ramajayam referred in the plaint had nothing to do with

Ganesa Vandaiyar. Neither the minor plaintiff nor her next friend was in possession of the properties.

After the defendants have filed their written statement, the plaintiff has filed her reply statement denying genuineness of the alleged Will dated

14.12.1977 in favour of D1. Reiterating the averments on the love and affection showered upon her, the plaintiff has filed the reply statement

contending that the Will dated 14.12.1977 is ""a forged document neither true nor valid"".

On the above pleadings, five issues and two additional issues were framed in the Trial Court. Ex.A-1 Will in favour of the plaintiff though found

to be true and correct, Trial Court found that Ex.B-24 Will in favour of D1 was found to be the Last Will of Ganesa Vandaiyar. Pointing out that

Ex.A-1 Will was written by an Advocate of good reputation (P.W. 3), valid execution of Ex.A-1 was accepted by the Trial Court. Upon

consideration of the evidence, Trial Court inter-alia recorded the following findings;

(i) all three Wills - Exs.B-24, A-1 and B-3 Will were found to be executed by Ganesa Vandaiyar out of his free will and volition and in a sound

disposing state of mind;

(ii) on the evidence of P.W. 3, Advocate Ramamurthi, execution of Ex.A-1 was accepted;

(iii) on the evidence of D.W. 2, Vaithilingam Chettiar, a Man of Affluence and Status, Ex.B-24 Will was found to be true and genuine.

Trial Court rejected the contention of the plaintiff that Ex.B-24 was brought into existence by D1 and D3 with the help of D.W. 2.

Confirming the findings of the Trial Court, in its exercise of re-appraisal of evidence the Lower Appellate Court compared the signature of

testator Ganesa Vandaiyar in Ex.B-24 with that of his signature in Exs.B-3 and A-1 and found that there was no significant variation. Pointing out

the several circumstances, the Lower Appellate Court found that in his last days, Ganesa Vandaiyar must have realised his earlier folly and changed

the earlier Will Ex.A-1. Lower Appellate Court further pointed out the circumstances probabilising the execution of Ex.B-24 and the fair

distribution of the properties under the same. Rejecting the plaintiff''s contention that Ex.B-24 is created by D3, Lower Appellate Court found that

Ganesa Vandaiyar had executed Ex.B-24 in a sound and disposing state of mind.

Thus both the Courts below have concurrently rejected the contention of the plaintiff that Ex.B-24 was brought into existence by D3 and other

relatives. Ex.B-24 was found to be the Last Testamentary Disposition of Ganesa Vandaiyar.

Aggrieved against the concurrent findings, this Second Appeal is preferred. The learned Senior Counsel Mr. T.R. Rajagopalan appearing for

the appellant / plaintiff submitted that the Lower Appellate Court having accepted the genuineness of execution of Ex.A-1, ought not to have

attached much importance to the suspicious circumstances pointed out by the defendants. In any event, submitting that those circumstances are

only flimsy, would not in any way affect the execution of Ex.A-1. It is further contended that the Lower Courts have not properly considered the

paucity of evidence as to the sound disposing state of mind of Ganesa Vandaiyar and the Lower Courts have failed to appreciate that Ganesa

Vandaiyar was suffering from ailment and taking treatment in a Private Clinic at Thanjavur. It is further submitted that Ganesa Vandaiyar being a

person of worldly knowledge having validly executed Ex.A-1 Will availing the legal assistance and when Ex.A-1 was executed after much

deliberation and when the same was deposited before the District Registrar, Nagapattinam, Ganesa Vandaiyar would not have so easily changed

his mind to execute Ex.B-24, an unregistered Will. It is the further contention of the Appellant / plaintiff that the Lower Courts were not properly

appreciated the mind of D3 / D.W. 4 who is always bent upon taking away the properties. It is also the contention of the plaintiff that the Lower

Courts have erred in not taking note that the real beneficiary is only D3 and not D1 and that the findings of the courts below in upholding the

Validity of Ex.B-24 suffers from serious infirmity and cannot be sustained.

Learned Senior Counsel Mr. S.V. Jayaraman appearing for the respondents / defendants elaborately submitted his arguments on the scope of

Section 100 C.P.C. Relying upon 2002 I L.W. 594 and AIR 2001 SCW 2057, it is submitted that while dealing in Second Appeal, only in rare

cases the High Court could interfere with the concurrent findings of fact and that there is no scope for appreciation of evidence. Referring to

Exs.B-3 and B-29, it is submitted that testator Ganesa Vandaiyar had always the intention that the properties to be within the control and

management of the family. It is also contended that Ganesa Vandaiyar in his last days while under the care of his close relatives would have thought

fit to change his mind in making disposition towards his close relatives. It is also submitted that Ex.B-24 was produced into the Court at the earliest

point of time i.e., at the time of filing the written statement on 12.07.1978 which would go a long way in proving its credibility. It is further

submitted that the Courts below have rightly appreciated Ex.B-24 Will in the light of the evidence D.Ws. 2 and 3. The learned Senior Counsel

further submitted that the concurrent findings of the courts below do not suffer from any erroneous approach calling for interference within the

limited scope of Section 100 C.P.C.

Second Appeal was admitted on the following Substantial questions of law:-

(1) Whether the Courts below are right in upholding Will Ex.B-24 dated 14.12.1977 as true and genuine and the last Will of deceased Ganesa

Vandaiyar when there were innumerable suspicious circumstances to hold that the said document is a fabricated one ?

(2) Whether the findings of the Courts below are sustainable in law regarding Ex.B-24 that it is the last Will of the said Ganesa Vandaiyar when the

earlier Will Ex.A-1 was drafted with the legal assistance and when the deceased himself deposited the Will after following the procedures

contemplated under the Registration Act ?

Both Plaintiff and Defendants setforth rival claim to the Suit Properties. Plaintiff claims through Registered Will dated 19.04.1975 (Ex.A-1).

D1 claims through Unregistered Will dated 14.12.1977 (Ex.B-24). Ganesa Vandaiyar died on 11.01.1978. D1 claims Ex.B-24 as last

Testamentary Disposition of Ganesa Vandaiyar.

Ganesa Vandaiyar was unmarried living in 114 B, Solaikulam. From the recitals in Ex.A-1 Will, it is seen that he was unmarried and living

alone. Plaintiff''s father Murugaiyan distantly related to Ganesa Vandaiyar. Her paternal aunt Ramajayam was cooking for Ganesa Vandaiyar and

she was the General-Purpose-Helper in the house.

Case of the plaintiff is that she was affectionately brought up by Ganesa Vandaiyar. She was educated in Mangudi Village and later she was

taken to R.C. School at Pattukottai, where she had further school studies. At the time of filing the suit also, plaintiff was studying in R.C. School,

Pattukottai. Further case of the plaintiff is that she was brought up by Ganesa Vandaiyar as his own daughter. As noted by the Lower Appellate

Court, Ramajayam - paternal aunt of the plaintiff was not examined in the Court. Ramajayam would have been the proper person to speak about

the reason for Ganesa Vandaiyar to bring up Muthuselvi (plaintiff) in his house and bequeath his properties in exclusion of all his close relatives.

P.W. 2 Murugaiyan, father of plaintiff was not frequently visiting house of Ganesa Vandaiyar at Solaikulam. He was only occasionally visiting the

house of Ganesa Vandaiyar. P.W. 2 cannot be said to be a competent person to speak about the reason for Ganesa Vandaiyar to bequeath all his

properties in favour of the plaintiff.

We are only left with the recitals in Ex.A-1 Will. Plaintiff Muthuselvi was neither an adopted daughter nor a foster daughter. Ganesa Vandaiyar

is said to have admitted her in School as is seen from Ex.A-29 School Admission Certificate. Thus there is no binding close relationship of Ganesa

Vandaiyar and plaintiff Muthu Selvi, excepting that he had brought her up with love and affection.

No clear evidence is available as to the relationship of the plaintiff with the said Ganesa Vandaiyar. From the evidence of D.Ws. 1 to 4, it is

seen that Ganesa Vandaiyar had five sisters and the defendants are closely related to him as under.

Thus D1 and D3 being sister''s sons are closely related to Ganesa Vandaiyar. Since D1 lost his mother in the young age, admittedly he was

brought up by D4 in the family house. Thus D1 to D9 are very close relatives of Ganesa Vandaiyar.

That plaintiff Muthuselvi was brought up by Ganesa Vandaiyar is clear from the following recitals in Ex.A-1, Will.

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gphpaj;Jld; tsh;e;J tUfpwJ/ Mifahy; vd;Dila $Ptjpirf;Fg; gpwF vd;dplKs;s moapw;fz;l !;jhtu brhj;Jf;fisa[k;. , e;jpahtpYs;s , ju !;thju $'';fk

brhj;Jf;fisa[k; ikdh; Kj;Jr;bry;tp rh;t Rje;jpu ghj;jpa'';fSlDk; anjr;rhypdpnahf tpdpka'';fSf;F nahf;akha; mile;J Mz;L mDgtpj;Jf; bfhs;s ntz;oaJ///@

As per the recitals in Ex.A-1 Will, all the Obsequies and Rites to be performed by G. Thirunavukkarasu @ G.T.Arasu.

Thus under Ex.A-1 Will, Ganesa Vandaiyar has bequeathed all his properties to the Plaintiff. Ex.A-1 Will was written by Advocate G.

Ramamurthi (P.W. 3) of Mannarkudi Bar. In his evidence, P.W. 3 has stated that pursuant to request of Ganesa Vandaiyar, he had written Ex.A-1

Will and that Ex.A-1 Will was deposited before the District Registrar, Nagapattinam. The Advocate Clerk of P.W. 3 Ramamurthi, namely, one

Ramachandra Naidu had attested Ex.A-1 Will. P.W. 3 has stated that he saw Ganesa Vandaiyar signing in Ex.A-1 and that Ganesa Vandaiyar

saw the Attestors signing in Ex.A-1 Will.

Both the Courts below concurrently upheld the genuineness of Ex.A-1 and recorded the finding that Ex.A-1 Will is a true and genuine Will and

the same was executed by Ganesa Vandaiyar in a sound and disposing state of mind. For such concurrent finding, Courts below have mainly

referred to the following:-

(i) that Ex.A-1 was written by P.W. 3 Ramamurthi - an Advocate of good standing in the Bar, Mannargudi;

(ii) before executuion of Ex.A-1, Ex.A-4 draft was prepared and thus there was much counselling and deliberation before drafting Ex.A-1;

(iii) Ex.A-1 Will was deposited before the District Registrar, Nagapattinam in a sealed cover and the seal was opened on payment of necessary

fee after the death of Ganesa Vandaiyar.

The concurrent finding of the Courts below on the genuineness of execution of Ex.A-1 is to be reckoned with.

In the light of Ex.B-24, propounded by D1, Courts below were faced with a question as to whether Ex.A-1 is the Last Will and Disposition of

Ganesa Vandaiyar. Ex.B-24 is an unregistered Will. Under Ex.B-24 (dated 14.12.1977), Ganesa Vandaiyar bequeathed all his properties to D1.

Sometime prior to his death i.e. from the end of 1977 Ganesa Vandaiyar was indisposed due to the kidney trouble. Firstly, he was admitted in

V.V.R. Clinic, Thanjavur and got well. After he came back to the house, Ganesa Vandaiyar executed Ex.B-24 Will. Thereafter, Ganesa

Vandaiyar had again became sick and was admitted in Keerthi Clinic, Thanjavur, where he was taking treatment and died in the hospital.

D.W. 2, Vaithilingam, who is very well known to Ganesa Vandaiyar and associated with him for a long time had attested in Ex.B-24 Will.

Lower Appellate Court referred to the reputation and status of D.W. 2 Vaithilignam that he is a man of good affluence and good credence. His

children are well placed in medical profession and others. Referring to the status of D.W. 2 Vaithilingam, Courts below were of the view that D.W.

2 had no reason to depose falsehood taking sides with the defendants.

D.W. 3 Narayanasamy is another attesting witness to Ex.B-24. He is also closely known to Ganesa Vandaiyar. Consistent evidence of D.Ws.

2 and 3 as well proved the execution of Ex.B-24 Will. From their evidence, it is clearly brought on record that they saw Ganesa Vandaiyar signing

in the Will and that Ganesa Vandaiyar saw them signing in the Will. Courts below have concurrently found that Ex.B-24 Will, though unregistered,

is the Last Will of Ganesa Vandaiyar.

Lower Appellate Court referred to Ramchandra Rambux Vs. Champabai and Others, in saying that the credibility of a witness depends not

merely on the demeanor of the witness; but credibility also depends upon the surrounding circumstances and the probabilities. This approach of the

Lower Appellate Court in accepting the evidence of D.Ws. 2 and 3 as credible and trustworthy is to be endorsed with.

The concurrent finding of the Courts below accepting Ex.B-24 as true as the Last Testamentary Disposition of Ganesa Vandaiyar is based

upon proper appreciation of evidence and objective assessment. D.W. 2 Vaithilingam is aged about 66 years, well known to the family of Ganesa

Vandaiyar. Earlier, when Ganesa Vandaiyar had executed Ex.B-3 Will on 28.04.1964, D.W. 2 Vaithilingam had attested Ex.B-3 Will also. That

apart D.W. 2 had also identified Ganesa Vandaiyar before the Sub Registrar at the time of execution of Ex.B-3 Will. Likewise when Ex.B-29,

Power of Attorney was executed in favour of D3 also, D.W. 3 had attested the document. Thus when D.W. 2 was so closely associated with

Ganesa Vandaiyar and the family, it is quite natural that Ganesa Vandaiyar would have called D.W. 2 Vaithilingam at the time of execution of

Ex.B-24 Will. The acceptance of evidence of D.Ws. 2 and 3 and the concurrent finding of the Courts below that Ex.B-24 is the Last Will of

Ganesa Vandaiyar cannot be said to be perverse or unreasonable calling for interference in the Second Appeal.

Courts below have concurrently found Ex.B-24 as the Last will and validly executed by Ganesa Vandaiyar. This is a finding of fact. Absolutely

there is no reason to upset that concurrent finding of fact by the Courts below. Elaborately arguing upon the power of the High Court u/s 100

C.P.C, the learned Senior Counsel Mr. S.V. Jayaraman appearing for the respondents /defendants submitted that scrutiny of evidence in the

Second Appeal is not totally prohibited. But that power to scrutiny can only be had in exceptional circumstances and upon proper circumspection.

In support of his contention that the power of the High Court is ""a rarity rather than a regularity"", the learned Senior Counsel referred to 2002 AIR

SCW 1280 and further relied upon 2002 I L.W. 594 and 2001 AIR SCW 2057.

Elaborately dealing upon the power of the High Court in scrutiny of the evidence, the Supreme Court in 2002 (3) LW 455 held thus:-

While scrutiny of evidence does not stand out to be totally prohibited in the matter of exercise of jurisdiction in the Second Appeal and that would

in our view be too broad a proposition and too rigid an interpretation of law not worthy of acceptance but that does not also clothe the superior

courts within jurisdiction to intervene and interfere in any and every matter. It is only in very exceptional cases and on extreme perversity that the

authority to examine the same in extenso stands permissible - it is a rarity rather than a regularity and thus in fine it can thus be safely concluded that

while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection.

This is, however, without expression of any opinion pertaining to Section 100 of the Code of Civil Procedure"".

Thus while dealing in the Second Appeals, only in very exceptional cases and on extreme perversity alone, the High Court can interfere with the

concurrent findings of the Courts below. In the light of the substantial questions framed and the arguments advanced on behalf of the Appellant /

Plaintiff that the questions arising in this Second Appeal substantially affect the rights of the parties calling for scrutiny of evidence. The learned

Senior Counsel for the Appellant / Plaintiff assailed the findings of the Courts below contending that the Courts below have not properly

appreciated the facts and the evidence, particularly the innumerable circumstances which indicate that Ex.B-24 Will is unnatural and surrounded by

suspicious circumstances. It is further submitted that though suspicious circumstances surrounding Ex.B-24 Will were not removed by the 1st

defendant, the Lower Courts erred in finding that Ex.B-24 as the last Testamentary Disposition of Ganesa Vandaiyar.

On the nature of evidence to be adduced and the proof of Will, the learned Senior Counsel Mr. T.R. Rajagopalan appearing for Appellant /

Plaintiff referred to the long line of decisions including the following:-

(1) H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others,

(2 Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another,

(3) Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and Others,

Referring to the above decisions, it is submitted that D1, the propounder of Ex.B-24 Will had not at all satisfied the Court about the genuineness of

execution of B-24 Will and that the suspicious circumstances surrounding the same were not at all removed. The approach of the Courts below in

attaching much importance to the oral evidence of D.W. 2 is assailed contending that erroneous approach has vitiated the findings and the

conclusions of the courts below.

In view of the elaborate submissions referring to very many circumstances as suspicious circumstances, we may briefly refer to those points in

finding whether Ex.B-24 Will suffers from suspicious circumstances and whether there is unjust disposition under Ex.B-24 Will and whether

findings of Courts below are vitiated by erroneous approach.

There is a long line decisions bearing on the nature of evidence to be adduced in proving a Will as noted earlier. We may usefully refer to the

principles laid down in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, , wherein it was observed ""that the mode of providing a will

did not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will

by Section 63 of the Indian Succession Act. The onus of proving the will was 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 was 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. If the caveator alleged undue influence, fraud or coercion, the onus would be on him to prove the

same. Even where there were no such pleas but the circumstances gave rise to doubts, it was for the propounder to satisfy the conscience of the

Court. Further, what are suspicious circumstances was also considered in this case. The alleged signature of the testator might be very shaky and

doubtful and evidence in support of the propounder''s case that the signature in question was the signature of the testator might not remove the

doubt created by the appearance of the signature. The condition of the testator''s mind might appear to be very feeble and debilitated and evidence

adduced might not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will might appear

to be unnatural, improbable or unfair in the light of relevant circumstances; or the will might otherwise indicate that the said dispositions might not

be the result of the testator''s free will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completely

removed before the document was accepted as the last will of the testator. Further, a propounder himself might take a prominent part in the

execution of the will which conferred on him substantial benefits. If this was so it was generally treated as a suspicious circumstance attending the

execution of the will and the propounder was required to remove the doubts by clear and satisfactory evidence. But even where there were

suspicious circumstances and the propounder succeeded in removing them, the Court would grant probate, though the will might be unnatural and

might cut off wholly or in part near relations. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the

test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument

produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious

circumstances the court has to be satisfied fully that the will has been validly executed by the testator"".

In the light of the above, it would therefore be necessary to decide as to whether Ex.B-24 is surrounded by suspicious circumstances and

whether the propounder had satisfactorily removed them. It is also to be seen whether the disposition under Ex.B-24 is unnatural and improbable

and unfair as against Ex.A-1.

The first question that falls to be considered is whether the Courts below were right in accepting Ex.B-24 - an unregistered Will as against

Ex.A-1 - Registered Will. Approach of the Lower Appellate Court is seriously assailed contending that it was not right in accepting Ex.B-24. It is

further submitted that when the Courts below have accepted Ex.A-1 as the genuine Will of Ganesa Vandaiyar, the Lower Appellate Court was not

right in further dealing with certain circumstances terming them as suspicious circumstances to discard Ex.A-1. Even at the outset, we may point

out that this argument does not merit acceptance. While finding that Ex.A-1 is validly executed, Lower Appellate Court had not further referred to

the suspicious circumstances as contended by the plaintiff / appellant. The Lower Appellate Court had only pointed out the circumstances

probabilising that the testator Ganesa Vandaiyar could have changed his mind. As pointed out earlier, plaintiff Muthuselvi and her father P.W. 2

Murugaiyan are not closely related to Ganesa Vandaiyar; they are only distantly related to Ganesa Vandaiyar. Plaintiff Muthuselvi happened to be

in the house of Ganesa Vandaiyar, since her paternal aunt Ramajayam was cooking and rendering service to Ganesa Vandaiyar by being a

General-Purpose-Helper to him. Plaintiff was neither an adopted daughter nor a foster daughter. Ganesa Vandaiyar being an unmarried man, while

in the old age, Ramajayam was taking care of him. Because of such care showered upon Ganesa Vandaiyar in his olden days, Ganesa Vandaiyar

might have developed instantaneous affection towards Ramajayam and her niece, plaintiff Muthuselvi. In that circumstance, in 1975 Ganesa

Vandaiyar might have made bequest of his entire properties to plaintiff Muthu Selvi.

Main contention urged on the genuineness of execution of Ex.A-1 and that Ex.A-1 is placed on higher footing is that Ex.A-1 was written by

P.W. 3, Advocate Ramamurthi and the same was deposited before the District Registrar, Nagapattinam. Only on payment of proper fee, the seal

was opened after the death of Ganesa Vandaiyar. Therefore, it is submitted that while Ex.A-1 was executed by Ganesa Vandaiyar availing the help

of legal services by engaging P.W. 3 Ramamurthi and Ex.A-1 was properly deposited before the Registrar, the Courts below erred in discarding

Ex.A-1 Will and in preferring Ex.B-24 Unregistered Will as against Ex.A-1. It may be noted that only on these grounds - (i) that Ex.A-1 was

written by P.W. 3 Advocate of good standing in the Bar, (ii) that Ex.A-1 was deposited before the District Registrar, Nagapattinam; the Courts

below have accepted Ex.A-1 as validly executed. Merely because Ganesa Vandaiyar had earlier executed Ex.A-1, it does not mean that later

Ganesa Vandaiyar should not have changed his mind from leaving another disposition.

Testator Ganesa Vandaiyar was a man of affluence owning extensive Properties and high position in Solaikulam Village. He owned at least 29

acres of Nanjai and dry lands. He also had one terraced residential house and another tiled house. As noted earlier, he had at least five sisters and

the children of his sisters. In his last days while Ganesa Vandaiyar was sick, he was taken care only by the sisters and other family members. When

placed in that situation, Ganesa Vandaiyar might have changed his mind in executing Ex.B-24 Will. It is relevant to note that earlier in 1964,

Ganesa Vandaiyar had executed Ex.B-3 Will (28.04.1964) bequeathing all his Properties to D3. Ganesa Vandaiyar had also executed Ex.B-29,

Power of Attorney in favour of D3 in 1964. Pursuant to which, the family properties were in the management of D3.

In his last days, realising the folly in bequeathing the entire Properties to the plaintiff Muthuselvi in exclusion of all his relatives, Ganesa

Vandaiyar might have changed his mind in executing Ex.B-24. In fact, only Ex.A-1 though deposited before the District Registrar, Nagapattinam,

appears to be unnatural and unfair in more than one aspect. While Ganesa Vandaiyar had earlier executed Ex.B-3 in 1964 and also leaving the

properties under the management of D3, why should Ganesa Vandaiyar later changed his mind to make a bequest of his entire properties to a

small girl of 10 - 15 years, who was no way closely related to him. Testator Ganesa Vandaiyar was under no obligation to make provision to

plaintiff Muthuselvi. As discussed earlier, Ex.A-1 Will appears to be the culmination of instantaneous affection, which Ganesa Vandaiyar

developed towards Ramajayam and the plaintiff. In that view of the matter, Ganesa Vandaiyar had every reason to have changed his mind later in

executing Ex.B-24.

In his last days, Ganesa Vandaiyar developed kidney trouble and slightly indisposed. Firstly, he was admitted in V.V.R. Clinic, Thanjavur.

When he became slightly better, he came back to the house and executed Ex.B-24 Will on 14.12.1977. Again Ganesa Vandaiyar became sick

and he was admitted to Keerthi Clinic, Thanjavur. He died on 11.01.1978. While he was in the hospital, only the defendants particularly D1 and

D3 were taking care of Ganesa Vandaiyar. When the defendants and other close relatives were taking care of Ganesa Vandaiyar, it is quite natural

for him to have changed his mind. He would have realised the unfairness in excluding them from the disposition of the properties. Thus in his last

days when the defendants have taken care of Ganesa Vandaiyar, the disposition under Ex.B-24 is quite natural and probable.

After the death of Ganesa Vandaiyar, only D3 and other defendants have performed the funeral rites and the other obsequies. No doubt, in

Ex.B-24 Will, signature of Ganesa Vandaiyar was found to be shaky. The Lower Appellate Court had carefully compared the signature of Ganesa

Vandaiyar in Ex.B-24 with that of his signature in Exs.B-3 and B-29 and found that it was only slight and natural variation which is because of the

old age of Ganesa Vandaiyar. That slight shaky in the signature of Ganesa Vandaiyar was found to be on account of his return from the hospital

after taking treatment. Thus the Lower Appellate Court was right in finding that the slight variation in the signature of Ganesa Vandaiyar in Ex.B-24

would not in any way amount to suspicious circumstances.

Yet another main circumstance pointed out by the Appellant / plaintiff is that the relationship between D3 and Ganesa Vandaiyar was strained

even from 1972 and that Ganesa Vandaiyar could not have possibly executed the Will bequeathing the properties in favour of D1 and allowing D3

to be in management of the properties. In this regard, the learned senior counsel for the appellant / plaintiff referred to Ex.A-7 letter written by D3

on 06.04.1972 to Ganesa Vandaiyar. In Ex.A-7 letter, D3 refers to an incident that Ganesa Vandaiyar chastising him in the presence of others.

Ex.A-7 also refers to a mortgage. From Ex.A-7, it is not known whether it refers to the mortgage in favour of D3. In any event, since the property

was allowed to be in the management of D3, even if Ex.A-7 refers to the mortgage in favour of D3, it loses its importance. The Lower Appellate

Court had rightly pointed out that any such chastising and casual difference of opinion between Ganesa Vandaiyar and D3 could not amount to a

suspicious circumstance. Any such differences between the relatives are only normality in any human relationship. It is also to be noted that Ex.A-7

relates to 1972 and the same cannot be termed as suspicious circumstance surrounding Ex.B-24.

Following other circumstances are also urged contending that Ex.B-24 Will suffers from loopholes and infirmities:-

(i) While Ganesa Vandaiyar had taken pains to get legal assistance of P.W. 3 - a reputed Lawyer in Mannargudi, who has prepared Ex.A-1 after

preparing the draft Ex.A-4 and has also deposited the Will in the office of the District Registrar, Nagapattinam, Ganesa Vandaiyar would not have

chosen to execute an unregistered Will - Ex.B-24;

(ii) Ex.B-24 does not contain any revocation clause of the earlier Will; if really Ex.B-24 was executed by Ganesa Vandaiyar, certainly he would

have referred the earlier Will - Ex.A-1 deposited by him in the office of District Registrar, Nagapattinam nor does Ex.B-24 refer to Ex.B-3.

The circumstances enumerated above do not in any way throw suspicion upon Ex.B-24 Will. Ganesa Vandaiyar was suffering from ailment for one

reason or the other. He may not have thought fit to go to the Registrar Office to execute the registered Will or deposit the same before the

Registrar. The surrounding circumstances may not have enabled Ganesa Vandaiyar to avail the legal assistance. The above circumstances are not

sufficient to raise any bona fide doubts in the mind of the Court as to the genuineness of Ex.B-24.

O.S. No. 104 of 1980:- One Rajam Iyer has filed this suit for recovery of money against the plaintiff as she is the legal heir of Ganesa

Vandaiyar and against Defendants 1 to 4 and others. That suit was dismissed. Aggrieved by the same, the said Rajam Iyer preferred an Appeal in

A.S. No. 3 of 1986 on the file of District Court, Thanjavur and it was allowed. Against which, S.A. No. 1285 of 1987 was filed. After remand by

the High Court in S.A. No. 1285 of 1987, the suit O.S. No. 104 of 1980 was dismissed by Sub Court, Nagapattinam.

CMP. No. 2963 of 2003:- This Application is filed under Order 41 Rule 27 C.P.C. to receive the judgment in O.S. No. 104 of 1980 as

additional evidence. The judgment being the certified copy is received as additional evidence and marked as Ex.A-53. The result of O.S. No. 104

of 1980 or the fact that the plaintiff was impleaded as the first defendant thereon would not in any way advance the case of the plaintiff. It is also

relevant to note, not only the plaintiff was impleaded as the defendant but also defendants 1 to 4 and others were also added as parties / as the

legal heirs of Ganesa Vandaiyar. Hence, additional evidence Ex.A-53 and the fact that the plaintiff was impleaded as a party in that suit filed by the

third party does not in any way strengthen the plaintiff''s case.

Upon appraisal of evidence and the circumstances urged by the appellant / plaintiff, in my considered view, Ex.B-24 though unregistered, the

nature of disposition under Ex.B-24 in choosing the close relatives is probable, fair and just. By the evidence of D.W. 2, Ex.B-24 is proved to be

duly executed. The Courts below have rightly accepted Ex.B-24 as genuine and the Last Testamentary Disposition of Ganesa Vandaiyar. The

findings of the Courts below are based upon the appreciation of evidence. The findings and conclusion of the Courts below are neither perverse

nor suffer from any infirmity calling for interference. This Second Appeal is bereft of merits and is bound to fail.

Therefore, the judgment and decree of the Subordinate Judge, Pattukottai in A.S. No. 21 of 1989 (dated 30.12.1989) (arising out of

judgment and decree in O.S. No. 169 of 1981 of District Munsif Court, Mannarkudi) is confirmed and this Second Appeal is dismissed. In the

circumstances of the case, there is no order as to costs.