Madras High Court
Indumathi vs P.P.R.Viswanathan (Deceased) on 17 November, 2021
O.S.A.No.140 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.11.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
AND
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
O.S.A.No.140 of 2018
1.Indumathi
2.P.Madhusudhan
3.Jayashree
4.P.Viswambar
5.P.Nandanandhan
6.Sarasija M.Shankar
7.Vasundra Badrinath Gupta .. Appellants/defendants
Versus
1.P.P.R.Viswanathan (deceased)
2.K.Subramania Mohan
3.Mrs.Prema Viswanathan
4.Mrs.G.Jayanthi
(R3 & R4 were brought on record
as LRs of 1st Respondent vide order dated 01.02.2021
in CMP.No.919/21 in OSA.No.140/18) .. Respondents/Plaintiffs
Prayer: Original Side Appeal has been filed under Order XXXVI Rule 11 of Original Side
Rules read with Clause 15 of the Letters Patent Act against the decree and judgment dated
10.01.2018 passed in T.O.S.No.18 of 2013 (O.P.No.73 of 2009) by the learned Single Judge.
For Appellants : Mr.S.Parthasarathy, Senior Counsel
for Mr.P.K.Sivasubramaniam
For R2 to R4 : Mr.R.Subramanian
R1 – died
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JUDGMENT
(Judgment of the Court was delivered by T.RAJA, J.)
Challenging the impugned judgment and decree dated 10.01.2018 passed in
T.O.S.No.18 of 2013 by the learned Single Judge granting a probate in respect of the Will
dated 14.12.2001 and the subsequent Codicil dated 14.01.2008 in favour of the respondents
1 and 2 herein, the appellants have filed the present appeal.
2. For the sake of convenience, the parties will be referred to as arrayed in
T.O.S.No.18 of 2013. Brief facts leading to the filing of the appeal are stated below:
The plaintiffs were appointed as executors by one Voora Sri Devamma under the
Will dated 14.12.2001, registered as Document No.111 of 2001 on the file of Sub-Registrar,
T.Nagar, and the subsequent Codicil dated 14.01.2008. She was the second wife of Voora
Sri Ramulu Chetty, who died on 16.01.1941. She died on 11.05.2008. The first plaintiff is
the sister's son of the deceased testatrix and the second plaintiff is the brother's son of the
deceased testatrix. During the life time of the testatrix, she had executed a Will dated
16.07.1998, registered as Document No.89 of 1998, however, the said Will was
subsequently revoked and the deceased testatrix executed the present Will dated
14.12.2001, bearing Document No.111 of 2001, bequeathing her immovable properties to
the plaintiffs and the defendants, besides bequeathing other immovable properties in
favour of her relatives. In view of subsequent developments, the deceased testatrix
executed a Codicil dated 14.01.2008, bequeathing her immovable properties to the
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plaintiffs and the defendants and other immovable properties in favour of her relatives.
By the said Will and Codicil, the plaintiffs were appointed as Executors by the deceased
testatrix. The Will dated 14.12.2001 was attested by one Mr.S.U.Kannan and Mr.M.Suresh
Kumar. The Codicil dated 14.01.2008 was attested by Mr.Giridharan and Mr.S.L.Muthiah.
3. It is further averred that originally, the plaintiffs had filed O.P.No.73 of 2009
seeking probate of the Will dated 14.12.2001 and the subsequent Codicil dated 14.01.2008.
In the said OP, the respondents 1 to 6 therein were other children of the brother of the
testatrix and they had given consent for grant of probate. Therefore, this Court, by
judgment dated 18.04.2009, had also passed orders granting probate. However, other legal
heirs of P.Andalamma, who is none other than daughter of the first wife of Voora Sri
Ramulu Chetty, had filed A.No.6575 of 2009 seeking to revoke the grant of probate and
this Court, by order dated 16.06.2011, had allowed the said application and directed that
the Will and Codicil of the deceased testatrix must be proved in a manner known to law
and thereby converted O.P.No.73 of 2008 into TOS and by this way, the impugned
T.O.S.No.18 of 2013 came into existence.
4. During the trial, on the side of the plaintiffs, two witnesses were examined and
six exhibits were marked. The first plaintiff/P.P.R.Viswanathan was examined as P.W.1.
S.U.Kannan, who was one of the attesting witnesses to the Will dated 14.12.2001, was
examined as P.W.2. S.L.Muthiah, who was one of the attesting witnesses to the Codicil
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dated 14.01.2008, was examined as P.W.3. Giridharan, who knew the deceased testatrix
and who was an another witness to the Codicil dated 14.01.2008, was examined as P.W.4.
Ex.P1 is the original Will dated 14.12.2001, Ex.P2 is the original Codicil dated 14.01.2008.
Ex.P3 is the death certificate dated 21.05.2008, Ex.P4 is the copy of the partition deed dated
25.09.1997 and Ex.P6 is the copy of the rectification deed dated 28.02.2005. On the side of
the defendants, P.Madhusudhan, who is the third defendant, was examined as D.W.1.
Ex.D1 to Ex.D3 were marked by the defendants. Ex.D1 is the copy of the notice dated
16.02.2016, Ex.D2 is the copy of the first Will dated 16.07.1998 and Ex.D3 is the copy of the
statement of accounts.
5. On perusal of the aforesaid oral and documentary evidences, learned Single
Judge, by the impugned judgment and decree dated 10.01.2018, decreed the suit as prayed
for holding that the plaintiffs are entitled to the grant of probate. Aggrieved by the same,
the defendants have filed the present appeal. Pending appeal, the first
plaintiff/P.P.R.Viswanathan expired on 14.06.2020 and thereafter, his wife and daughter
were brought on record and they are arrayed as respondents 3 and 4 in this appeal.
6. Assailing the impugned judgment and decree, Mr.S.Parthasarathy, learned Senior
counsel, representing Mr.P.K.Sivasubramaniam, learned counsel for the
defendants/appellants herein, submitted that the husband of the deceased testatrix had
already executed his Will dated 07.04.1941 expressing his desire to adopt his first wife's
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son Abiramudu. However, after the adoption, Abiramudu died on 11.06.1950. But, the
plaintiffs/respondents herein suppressing the names of legal heirs of the deceased
fraudulently obtained an order of probate in O.P.No.73 of 2009, dated 18.04.2009,
depriving the rights of the defendants/appellants to challenge the genuineness and
probative value of the Will dated 14.12.2001 and the subsequent Codicil dated 14.01.2008.
It is further submitted that the Will and Codicil of the deceased Voora Srideviamma are
fabricated documents and they are not executed by the deceased testatrix as she was not in
sound state of mind, hence, the plaintiffs/respondents, who are claiming as executors, are
not the legal heirs of the deceased testatrix and therefore, they are not entitled to an order
of grant of probate of the Will and Codicil.
7. Continuing further, learned Senior counsel argued that although the Will dated
14.12.2001/Ex.P1 was attested by two witnesses, namely, S.U.Kannan and M.Suresh
Kumar, the second witness was not examined. It is further argued that if two witnesses
are alive, but, not examined as mandatorily required under Section 63 of the Indian
Succession Act, then the deficiency in complying with such provision would show that the
plaintiffs have failed to prove the execution of the Will/Ex.P1 by examining those
witnesses. Thus, on the specific ground of non-compliance of mandatory provision under
Section 63 of the Indian Succession Act, learned Single Judge ought to have dismissed the
suit.
8. It is further argued that the Will/Ex.P1 was duly registered, but, the Codicil/Ex.P2
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was unregistered one and the attesting witnesses did not know each other and again, they
did not know contents of the Will as well. Further, when the deceased testatrix knew only
Telugu language, it is now known how she is said to have singed in Tamil, therefore, it is
clear that both Will and Codicil are fabricated and forged documents.
9. In support his submissions, learned Senior counsel has relied upon the judgments
reported in AIR 1940 MAD 315 [Sadachi Ammal Vs. Rajathi Ammal and others]; AIR
1959 SC 443 [H.Venkatachala Iyengar vs. B.N.Thimmajamma and others]; AIR 1962 SC
567 [Rani Purnima Debi and another vs. Kumar Khagendra Narayan Deb and another];
1997 (3) LW 673 [Govindan Chettiar (died) vs. Akilandam alias Seethalakshmi and 24
others]; 2001 (7) SCC 503 [N.Kamalam 9dead) and another vs. Ayyasamy and another];
and 2006 (13) SCC 433 [Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao and others]
for a proposition that when there were suspicious circumstances and the propounder had
taken part actively, then the Will cannot be believed. Learned Senior counsel has also
relied on one another judgment in the case of Suguna Bai Vs. Muniammal @
Dhanalakshmi and others [1996 (2) MLJ 596] to contend that when attestation to a Will is
sought to be proved, naturally, the witness must say that the document contains either the
thumb-impression or signature of the attestor and that he has also signed in token of the
attestation and he must identify the signature as seen in the document. But, in the present
case, the attesting witnesses, namely, P.W.2, P.W.3 & P.W.4 to the Will/Ex.P1 and
Codicil/Ex.P2, did not identify their respective signatures found in the said documents.
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Therefore, the impugned judgment and decree passed by the learned Single Judge is liable
to be interfered with.
10. Per contra, Mr.R.Subramanian, learned counsel for the plaintiffs/respondents
herein, submitted that while the deceased testatrix was in sound state of mind, she had
executed a Will dated 14.12.2001/Ex.P1 bequeathing her immovable properties to the
plaintiffs and the defendants. However, during her life time, since she had disposed of
some of the movable properties, she had executed Codicil dated 14.01.2008/Ex.P2. Under
the Will and Codicil, the plaintiffs were appointed as Executors and therefore, they are the
administrator of the properties as executors and beneficiaries under the Will. During trial,
attesting witnesses of Ex.P1 and Ex.P2 were examined. During the cross examination,
P.W.3 stated that the deceased testatrix was in sound state of mind. It is further submitted
that the attesting witnesses saw the signing of documents by the deceased testatrix and
they have also signed those documents in her presence. Thus, the question of non-
compliance of Section 63 of the Indian Succession Act and Section 68 of the Indian
Evidences Act does not arise.
11. Continuing further, learned counsel for the plaintiffs/respondents herein
submitted that the third defendant, who was examined as D.W.1, while deposing, accepted
that the Will and the Codicil have been acted upon and amounts were distributed as per
the said documents. He further deposed that Ex.P1 was executed by the deceased testatrix
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as she came personally to execute the same before the Registrar in the year 2001.
Therefore, while the third defendant himself admitted the execution of the Will and
Codicil by the deceased testatrix, the submission of the learned Senior counsel that there
was a suspicious circumstances surrounding in execution of the Will and Codicil is not
tenable, hence, the impugned judgment and decree passed by the learned Single Judge
does not call for interference, he pleaded.
12. Heard the learned counsel appearing on either side and perused the materials
available before this Court.
13. The sole issue raised in this appeal is whether the Will/Ex.P1, dated 14.12.2001,
and the subsequent Codicil/Ex.P2, dated 14.01.2008, have been executed in a manner
known to law as adumbrated in Section 63 of the Indian Succession Act and Section 68 of
the Evidence Act. Before delving into the issue, for better appreciation of the case on
hand, it is apposite to extract below the said provisions:-
Section 63 of the Indian Succession Act:
63. Execution of unprivileged wills.- Every testator, not being
a soldier employed in an expedition or engaged in actual warfare, or an
airman so employed or engaged, or a mariner at sea, shall execute his
will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it
shall be signed by some other person in his presence and by his direction.
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(b) The signature or mark of the testator, or the signature of the
person signing for him, shall be so placed that it shall appear that it was
intended thereby to give effect to the writing as a Will.
(c) 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 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
acknowledgement 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."
Section 68 of the Evidence Act
"68. Proof of execution of document required by law to be
attested.- 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 it's execution, if there be an
attesting witness alive, and subject to the process of the Court
and capable of giving evidence:
Provided..."
14. Section 63 of the Indian Succession Act speaks that the testator has to sign or
affix his mark to the Will, or it has got to be signed by some other person in his presence
and by his direction. It further states that the Will has to be attested by two or more
witnesses and each of these witnesses must have seen the testator sign or affix his mark to
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the Will, or must have seen some other person sign the Will in the presence and by the
direction of the testator. In this case, admittedly, the deceased testatrix had executed a Will
dated 14.12.2001 bearing Document No.111 of 2001 on the file of Sub-Registrar, T.Nagar,
Chennai, and this was marked as Ex.P1. The said Will was attested by two witnesses,
namely, S.U.Kannan and M.Suresh Kumar. Before the Court below, S.U.Kannan was
examined as P.W.2 and in his proof affidavit, he had stated that he saw the deceased
testatrix signing the Will, besides, stating that he along with M.Suresh Kumar signed in
her presence. He further stated that the deceased testatrix read the document in the Sub
Registrar office and signed the Will and the testatrix knows Tamil and she spoke to him in
Tamil. Section 68 of the Indian Evidence Act speaks about as to how a document required
by law to be attested can be proved and it further says that a document required by law to
be attested 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 an evidence. In the case on hand,
although as per Section 63 of the Succession Act requires that a will has to be attested at
least by two witnesses, Section 68 of the Evidence Act provides that a document which is
required by law to be attested shall not be used as evidence until one attesting witness at
least has been examined for the purpose of proving its due execution if such witness is
alive and capable of giving evidence. Therefore, although the Will had been attested by
two witnesses, P.W.2/S.U.Kannan was examined and as stated above, he deposed that he
saw the testatrix signing the Will. With regard to Ex.P2/Codicil dated 14.01.2008, the
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plaintiff had examined P.W.3 and P.W.4, both attesting witnesses. Thus, legal requirement
for execution of the Will as adumbrated under Section 63 of the Indian Succession Act and
Section 68 of the Indian Evidence Act has been complied with and as rightly held by the
learned Single Judge, the plaintiffs have proved the execution of Ex.P.1 and Ex.P2 in the
manner known to law.
15. In Janki Narayan Bhoir Vs. Narayan Namdeo Kadam [(2003) 2 SCC 91], the
Hon'ble Apex Court, while dealing with Section 63 of the Indian Succession Act and
Section 68 of the Evidence Act, has vividly simplified as to how a Will has to be executed
and how execution of such Will can be accepted. For better appreciation, relevant portion
thereof is extracted below:-
“10. Section 68 of the Evidence Act speaks of as to how a
document required by law to be attested can be proved. According to the
said Section, a document required by law to be attested 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 an evidence. It flows from this Section that if
there be an attesting witness alive capable of giving evidence and
subject to the process of the Court, has to be necessarily examined
before the document required by law to be attested can be used in
an evidence. On a combined reading of Section 63 of the Succession Act
with Section 68 of the Evidence Act, it appears that a person propounding
the will has got to prove that the will was duly and validly executed. That
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cannot be done by simply proving that the signature on the will was that
of the testator but must also prove that attestations were also made
properly as required by clause (c) of Section 63 of the Succession Act. It is
true that Section 68 of Evidence Act does not say that both or all the
attesting witnesses must be examined. But at least one attesting witness
has to be called for proving due execution of the Will as envisaged in
Section 63. Although Section 63 of the Succession Act requires that
a will has to be attested at least by two witnesses, Section 68 of
the Evidence Act provides that a document, which is required by
law to be attested, shall not be used as evidence until one attesting
witness at least has been examined for the purpose of proving its
due execution if such witness is alive and capable of giving
evidence and subject to the process of the Court. In a way, Section
68 gives a concession to those who want to prove and establish a
will in a Court of law by examining at least one attesting witness
even though will has to be attested at least by two witnesses
mandatorily under Section 63 of the Succession
Act...............................”
As highlighted above, although Will had been attested by two witnesses, one witness,
namely, S.U.Kannan was examined as P.W.2 and therefore, the requirement as per Section
68 of the Indian Evidence Act has been met out.
16. Learned counsel for the respondents/plaintiffs brought to our notice to the
evidence of DW1/third defendant. During the cross examination, he admitted the
execution of the Will/Ex.P1 as follows:-
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“I also accept that Ex.P1 Will was executed by deceased Voora Sri
Devi Ammal where she came personally to execute the same before the
Registrar in the year 2001. Ex.P3 is the death certificate of Voora Sri
Devi Ammal. I accept after the demise of Voora Sri Devi Ammal that a
sum of Rs.5,000/- was distributed in terms of the Will dated 14.01.2008
to around 26 persons which was confirmed by me in Ex.P5.”
17. It is seen from the records that D.W.1 was examined after the cross examination
of P.W.2, P.W.3 and P.W.4. Despite that, he fairly admitted the execution of Ex.P1/Will and
Ex.P2/Codicil, besides stating that both documents had been acted upon and amounts
were distributed as stated in those documents. Thus, as rightly held by the learned Single
Judge, we have no hesitation to hold that deceased testatrix/Voora Sri Devammal had
executed Ex.P1 and Ex.P2.
18. Before parting with the issue, it is to be noted that the entire issue cropped only
after execution of the Will dated 14.12.2001 in view of dispute arisen in giving a share to
the defendants. But, the record shows that even before the execution of the said Will, the
deceased testatrix had executed a partition deed dated 25.09.1997 in favour of the
defendants and this was marked as Ex.P4 and the same was confirmed through the
rectification deed dated 28.02.2005 marked as Ex.P6. Therefore, as the defendants were
allotted with their respective shares through the said partition deed dated 25.09.1997, the
deceased testatrix bequeathed the remaining portions through the Will dated 14.12.2001.
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Therefore, by taking note all these factual aspects, learned Single Judge has rightly held
that the plaintiffs are entitled to the grant of probate as prayed for.
19. Thus, for the reasons stated above, we do not find any error or illegality in the
impugned judgment and decree passed by the learned Single Judge. In fine, the Original
Side Appeal stands dismissed. No Costs.
(T.R., J.) (D.B.C., J.)
17.11.2021
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T.RAJA, J.
and
D.BHARATHA CHAKRAVARTHY, J.
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