Rathinam vs Gopal and Another

Bellie, J.—The plaintiff Rathinam won his case in the trial Court but lost in the first appellant Court. He has filed this second appeal.

This suit is for declaration and possession. The plaintiff and his brother first defendant Gopal are sons of one Pakkiri Samban through his first wife and the second defendant is Pakkiri Samban''s second wife. According to the plaintiff, his father executed a Will on 17.12.1970 under which he became absolutely entitled to ''C'' schedule properties described in the Will (which are described in the plaint) and vested remainder over a moiety of ''A'' schedule property after the death of the second defendant and full rights in the trees in it (A-schedule). While so the defendants have interfered with the plaintiff''s possession of the suit properties and the second defendant has forcibly occupied a room in the backyard of ''A'' schedule. Hence the suit.

As against this the defendants denied execution of any Will by Pakkiri Samban and they would contended that even if by any chance there is Will as alleged it should have been obtained by fraud, coercion and misrepresentation. In respect of the properties owned by Pakkiri Samban there was a family partition by means of a Karai Olai as early as 1958 and it is binding on the parties. The suit properties were given to the defendants and they have been enjoying the same as absolute owners. Hence the suit is liable to be dismissed.

The trial Court on consideration of the evidence held that the alleged Will is true and valid and therefore it decreed the suit as prayed for. But the first appellate Court did not agree with the findings of the trial Court and held that there were circumstances which would show that the Will should have been obtained by fraud, coercion and misrepresentation as contended by the defendants and therefore the plaintiff cannot claim the properties under the Will in question. In the result therefore the first appellate Court dismissed the suit.

Mr. D.Peter Francis, learned counsel for the appellant-plaintiff seriously argued that the first appellate Court has found that Pakkiri Samban had signed the Will which has been registered, but on minor and insignificant circumstances which are said to be suspicious the learned first appellate Court has found that the Will is not genuine. But on a careful perusal of the evidence I am afraid I cannot agree with him. It is true, as the trial Court did, the appellate Court also would believe that the signature found in the copy of the Will Ex. A8 summoned from the Registrar''s Office tallies with the admitted signatures of Pakkiri Samban in the registered exchange deed Exs.A4 and A5, but the contentions of the defendants is that if the original of Ex. A8 had been signed by Pakkiri Samban it should have been obtained without Pakkiri Samban knowing the nature and the contents of the document and therefore the alleged Will is not genuine one. The first appellate Court has pointed out certain circumstances surrounding the execution of the Will which according to it shows that Pakkiri Samban when he signed the Will had no knowledge of its contents.

P. W.2 has been examined as an attestor of the Will and P.W.3 as the scribe of it. These two have of course spoken that Pakkiri Samban signed the Will and it was registered and at that time Pakkiri Samban was in a sound state of health. According to the plaintiff (P. W. 1) he was not aware of the execution of the Will. He would say that he came to know of the Will three years after his father died. He himself would say that his father died three years after the execution of the Will. However, P. W.2, the attesting witness would say that he informed the plaintiff about the Will one month after the execution.

Therefore, the plaintiff''s evidence that he came to know of the Will six years after its execution is difficult to believe. It is not the case of the plaintiff that his father Pakkiri Samban really wanted to keep the Will secret. If Pakkiri Samban really wanted to keep the Will secret he would have definitely told the attestors and scribe of the Will also to keep it secret. But neither P.W.2 nor P.W.3 have stated anything like that. Further P.W.2 and P.W.3, as we will see presently, are closely connected with the plaintiff and therefore it is incredible that the defendant did not divulge the fact to the plaintiff for years together. Therefore there is absolutely no reason as to why the plaintiff should be ignorant of the execution of the Will. This probabilises that Pakkiri Samban himself did not know that he had executed the will. According to the plaintiff the original Will is with the first defendant. It is not known how did he knew that it was with him (first defendant). Here too neither P. W.2 nor P. W.3 has stated that the original Will is with the first defendant. May be the original Will is with the plaintiff, but he would not say so because it may give rise to suspicion that he got the Will frauduley executed. In this connection it must be noted that the time of the execution of the will the plaintiff was not in good terms with his'' father and he was living separately (see P.W.1-plaintiff). It is the evidence that Pakkiri Samban was at that time 75 years old and it is also the evidence of P. W.2 and P. W.3 that Pakkiri Samban did not know to read or write but he knew to put his signature only. Admittedly the scribe P.W.3 was working under one Kumarasamy and he used to write documents for him and the plaintiff also was working under him. Thus there is not doubt that the plaintiff and P. W.3 were closely connected. And the said Kumarasamy is the son of one Shanmugasundaram Chettiar and P.W.2 is the Kariyasthar of the said Shanmugasundaram Chettiar. Thus P. W.2 is closely linked with the plaintiff and P. W.3 Ex. 5 exchange deed to which Pakkiri Samban is a signatory was registered on 17.12.1970 and as per the evidence on the same day and same time the Will also has been registered P.W.3 who has written the Will has also written Ex. A5. But Ex. A5 had been written earlier than the will but both were registered on the same day i.e., 17.12.1970 and at the same time. The plaintiff is one of the attestors to Ex. A5 and according to him (P.W. 1) he was present when Ex. A.5 was executed and when it was registered. Hence it may be recalled that according to the plaintiff he did not know about the execution of the Will but the circumstance that the Will and Ex. A5 were together registered would belie this version of his. There is a possibility of getting signature of Pakkiri Samban in a fraudulently written Will on the pretext of his getting his signatures for the exchange deed. The lower appellate Court has pointed out that all the witnesses examined by both sides would admitted that Pakkiri Samban was hale and hearty at the time when the Will is said to have been executed. But in the Will, as seen from Ex. A 8 copy, it is recited that he was suffering from giddiness. P.W.3 would even admit that Pakkiri Samban was free from illness but they purposely wrote that he was suffering from giddiness, but no reason has been given for that. The also is circumstance that probabilises that the Will is a make believe document.

The power appellate Court has found that the share of properties given to the plaintiff under the will is more and unequal when compared to the share given to the defendants. Whereas the first defendant has been given a tiled house in 4 cents of land and the second defendant a titled house in 8 cents of land, the plaintiff has been given a tiled house in 17 cents of land. Likewise whereas the first defendant has been given 40.25" cents of free land ( i.e. free from any lease) the plaintiff has been given 97.25" cents. These shares are undoubtedly unequal, unnatural admit is unlikely that a father would have allotted his properties to his sons and his wife in this manner in the normal course. The lower appellate Court is correct in saying that this circumstance also gives room for grave suspicion, The first appellate Court has further pointed out that in the notice the plaintiff has stated that he is in possession of the entire suit properties by virtue of the Will but in the suit he has stated that a portion has been occupied by the second defendant. As afore seen P.Ws. 2 and 3 are closely associated with the plaintiff and therefore they cannot be said to be quite independent witnesses. Apart from P.W.2 one Shanmuga Sjindaram also is said to have attested the Will. But he has not been examined. The reason given is that he is suffering from T.B. and jaundice. But P.W.2 only says about this. From his evidence alone it cannot be taken to be true. Even if it is true, it is the bad luck of the plaintiff, and in the circumstances of the case his non-examination affects the case of the plaintiff. Here it would be relevant to note the judgment of the Supreme Court in Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another, . It has been held therein that:

"the four attesting witnesses produced were interested and unreliable; none of the independent witness who had signed the will were produced. The mere fact that the Will was registered was not by itself sufficient to dispel the suspicions without scrutiny of the evidence of registration. Registration would dispel the doubt as to the genuineness of the Will only if it was made in such a manner that it was brought home to the testator that the document which he was admitting execution was a Will deposing of his property and the testator thereafter admitted. its execution and singed in token thereof.

In the light of this, if the facts of the present case is considered, it appears to me only because the Will has been registered and it has been signed by Pakkiri Samban, and P.W.2 and P.W.3 who are interested witnesses have given evidence, the Will cannot be said to be genuine one in the face of the above mentioned grave suspicious circumstances surrounding it. Therefore I hold that the first appellate Court is correct in dismissing the suit. Consequently the second appeal is dismissed with cots.