Venugopal Reddiar (died) and Others vs Gopalsami Reddiar and Another

V. Ratnam, J.—The legal representatives of the deceased plaintiff in O.S. No. 159 of 1976, District Munsif''s Court, Ranipet, are the

appellants in this second appeal. That suit was instituted by the deceased plaintiff praying for a declaration of his title over the suit properties and

for recovery of possession. Briefly stated, the case of the plaintiff was as follows: The father of the deceased plaintiff, one Madhava Reddi and

Chinaina Reddi were brothers. Chinaina Reddy died some time in 1922 leaving behind him, his wife Kanakarathinammal Kanakarathinammal had

a brother by name Devarajulu and his son is the 1st respondent in this second appeal. The 2nd respondent is the wife of the 1st respondent. The

suit properties belonged to Chinaina Reddi and on his death, his wife enjoyed the same and while doing so, she stayed with the respondents. As

Kanakarathinammal was an illiterate lady, the 1st respondent managed the said properties. Kanakarathinammal died on 27.3.1976 and on her

death, deceased/plaintiff claimed that he was the only heir entitled to the suit properties as the brother''s son of Chinaina Reddi, the original owner

of the properties. The 1st respondent, according to the deceased plaintiff refused to recognize the rights of the plaintiff and also claimed the

properties under a Will dated 1.6.1966 stated to have been executed by Kanakarathinammal in favour of the 2nd respondent. That will, according

to the plaintiff, was a fraudulent one and would not clothe the 2nd respondent with any title to the suit properties. It was under the aforesaid

circumstances, the deceased plaintiff laid the suit praying for the reliefs set out earlier.

In the written statement filed by the respondents, they stated that on 30.6.1922, Chinaina Reddi executed a registered will in favour of his wife,

Kanakarathinammal, while in a sound and disposing state of mind bequeathing the suit properties absolutely to her and after the death of Chinaina

Reddi, she had been in possession and enjoyment o,f the same as absolute owner. That Kanakarathinammal was an illiterate or ignorant lady was

denied by them. The claim of the deceased plaintiff that he is the sole heir of Chinaina Reddi was also disputed by the respondents, who stated that

Chinaina Reddi had a brother and two sisters and they had children and that they would also be heirs of Chinaina Reddi. The respondents further

stated that Kanakarathinammal executed a will in favour of her brother Devarajulu and the 1st respondent on 5.1.1944 and as the 1st respondent

was not attending to the management of the properties and started squandering them, Kanakarathinammal executed on 1.6.1966 a will

bequeathing the suit properties to the 2nd respondent and after her death on 27.3.1976, the 2nd respondent was in possession and enjoyment of

the suit properties in her own right. The respondents thus disputed the claim of title put forth by the deceased plaintiff to the suit properties and

prayed for the dismissal of the suit.

Before the trial Court, on behalf of the deceased plaintiff, Exs. A-1 and A-2 were marked and the deceased plaintiff was examined as P.W. 1,

while, on behalf of the respondents, Exs. B-1 to B-3 were filed and the 1st respondent gave evidence as D.W. 1, besides two attestors of the will

examined as D. Ws. 2 and 3. On a consideration of the oral as well as the documentary evidence, the learned District Munsif found that the wills

dated 5.1.1944 and 1.6.1966 are true and valid, that the deceased plaintiff, even on his own admission, is not the only legal heir to Chinaina Reddi

or even Kanakarathinammal and that the plaintiff is not entitled to any of the reliefs prayed for. On those conclusions, the suit was dismissed.

Aggrieved by this, the deceased plaintiff preferred an appeal in A.S. No. 247 of 1978, Sub Court, Vellore. The learned Subordinate Judge, on a

consideration of the evidence of D. Ws. 2 and 3, concluded that the execution of the will by Kanakarathinammal in favour of the 2nd respondent

herein on 1.6.1966 had been established and that thereunder, the 2nd respondent is entitled to the properties and further that the deceased plaintiff

is not the sole heir entitled to succeed to the suit properties. On those conclusions, the appeal was dismissed, the correctness of which is

questioned in this second appeal.

Learned Counsel for the legal representatives of the deceased plaintiff referring to the evidence of the attestor, D.W. 2 contended that his

evidence do not satisfy the requirements of valid execution of a will u/s 63(c) of the Indian Succession Act, 1925. Per contra, learned Counsel for

the respondents submitted that the evidence of the attestor, D.W. 2 clearly fulfilled the requirements of Section 63(c) of the Indian Succession Act,

(hereinafter referred to as the Act for short) and therefore, the Courts below were right in upholding the will executed by Kanakarathinammal

under Ex. B-3, dated 1.6.1966.

Before proceeding to consider the question of the proper and valid execution of the will, Ex. B-3, it is necessary to refer to Section 63(c) of the

Act, which runs as under:

63(c) The will shall be attested by two or more witnesses, each of whom had seen the testator sign or affix his mark to the will or has seen 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 form of attestation shall be necessary.

A reference at this stage may be made to Section 68 of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act for short),

which provides that:

If a document is required by law to be attested, it shall not be used as Evidence until one attesting witness at least has been called for the

purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.

There is a proviso to this section, which is not very material for purposes of this case. Thus, while under. Section 63(c) of the Indian Succession

Act, the will should be attested by two or more witnesses, each of whom had either seen the testator sign or affix his mark, or had received from

the testator a personal acknowledgment of his signature or mark on the will, it is not necessary that the testator and the two witnesses should all be

present at one and the same time. However, it is clear that there must be two witnesses, who have attested the execution and to each of them the

testator either should have given his personal acknowledgment of his signature or mark, or both of them should have been present at the time when

the testator executed the document. Section 68 of the Indian Evidence Act lays down the mode of proof of a will by calling at least one witness,

but it does not set out or purport to define what is required to be proved. That however has been laid down in Section 63(c) of the Indian

Succession Act. Even if one witness, who is called, is able to depose to all that is required by Section 63(c) of the Indian Succession Act, for the

valid execution of a will, that would suffice for Section 68 of the Evidence Act. Section 68 of the Evidence Act does not in any manner change or

alter the requirements to be proved by Section 63(c) of the Indian Succession Act. A reading of Section 63(c) of the Indian Succession Act with

Section 68 of the Evidence Act establishes that a person propounding a will has to prove the will was duly and validly executed and that should be

done by not merely establishing that the signature on the will was that of the testator, but also that the attestations were made in the manner

contemplated by Clause (c) of Section 63 of the Indian Succession Act. It is true that it is not necessary u/s 68 of the Evidence Act to examine

both or all the attesting witnesses. However, it does not follow that if one attestor proves that the testator had acknowledged his signature to him it

is not necessary that the acknowledgment by the testator before the other attesting witness need be proved. In cases where two attesting witnesses

had signed in the presence of each other, it is not necessary to examine both to prove that they had received the acknowledgment from the

testator, but if the attestations are not made at the same time, it is necessary to prove that the attestors had signed so on the acknowledgment of the

testator.

It is in this light the evidence of D.W. 2 has to be scanned to find out whether the respondents have established the due execution of the will by

Kanakarathinammal in the manner contemplated u/s 63(c) of the Indian Succession Act. D.W. 2 has deposed that he signed as an attesting witness

after Kanakarathinammal had signed in the will Ex. B-3 and that when he entered the house of Kanakarathinammal, one Ramabadra Reddi and

D.W. 3 were present there. In the course of his cross examination, he stated that only after he reached the house of the testatrix, the latter affixed

her thumb impression to the will and that he attested the will last. A perusal of Ex. B-3 will show that D.W. 2 had put his signature last, while D.W.

3 has put his signature before that. Considering the order in which the signatures of the attestors, viz., D. Ws. 2 and 3 are found in Ex. B-3, and the

evidence of D.W. 2 to the effect that he signed the will last and D.W. 3 was also present, it should be taken that the attestors were present to the

same time and the testatrix signed by putting her thumb impression in the presence of both of them. Therefore, it has to be held that the execution

of Ex. B-3 was in accordance with Section 63(c) of the Indian Succession Act.

Even according to the evidence of the deceased plaintiff, examined as P.W. 1, he is not the sole heir of deceased Kanakarathinammal. He had

admitted that he had brothers and sisters and that some of them are still alive and if that be so, then his claim that he is the sole heir to Chinaina

Reddi and thus entitled to succeed to his properties, cannot be countenanced at all. The Court below have found that there are other heirs than the

deceased plaintiff and that the deceased plaintiff cannot therefore claim title to the suit properties as if he was the sole heir. This conclusion of the

Courts below is quite correct and does not call for any interference. Consequently, the second appeal fails and is dismissed with costs.