Madras High Court
Esther Packiathai vs Chella Mariyal on 7 September, 2021
S.A.(MD)No.907 of 2005
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.09.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.907 of 2005
and
C.M.P.(MD)No.5911 of 2005
1.Esther Packiathai
2.Koli Joseph
3.Athisaya Raj
4.Christopher
5.Lalitha
6.Phiyala ... Appellants
Vs.
Chella Mariyal ... Respondent
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree made in A.S.No.10 of 2005, dated 30.06.2005
on the file of the Principal District Court, Tirunelveli, confirming the judgment
and decree made in O.S.No.251 of 2001 dated 28.07.2004 on the file of the
Principal Sub Court, Tenkasi.
For Appellants : Mr.H.Arumugam
For Mr.S.Kumar
For Respondent : Mr.S.A.Ajmal Khan,
For Mr.Sulthan Alowdhin
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S.A.(MD)No.907 of 2005
JUDGEMENT
The defendants in O.S.No.251 of 2001 are the appellants in this second
appeal. The appeal arises out a suit for partition. The suit properties belonged
to one Andrews Andrea. He married one Janaki and through her begot the
plaintiff Chella Mariyal and one Elizabath Rani. After the demise of Janaki,
Andrews Andrea got married to Esther Packiathai. Through the second
marriage, he begot three sons and two daughters. Andrews Andrea passed away
on 05.11.2001. The plaintiff, who was born through the first wife claimed
1/9th share in the suit properties. The defendants filed written statement
controverting the plaint averments. According to them, before his demise,
Andrews Andrea had executed a registered Will dated 23.06.2000 (Ex.B1)
bequeathing all the properties in favour of the first defendant/Esther Packiathai,
who was his second wife. Based on the divergent pleadings, the trial Court
framed the necessary issues.
2.The plaintiff examined herself as P.W.1, one Packiamuthu was
examined as P.W.2, one Lingam, who was said to have executed the suit Will
was examined as P.W.3. Exs.A1 to A3 were marked. The first defendant
examined herself as D.W.1. One of the attestors of the Will was examined as
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S.A.(MD)No.907 of 2005
D.W.2. D.W.3/Palani was examined to testify regarding the mental capacity of
the testator. Exs.B1 to B3 were marked.
3.After a consideration of the evidence on record, the trial Court
disbelieved the suit Will and granted preliminary decree allotting 1/9th share in
favour of the plaintiff. Aggrieved by the same, the defendants filed A.S.No.10
of 2005 before the Principal District Court, Tirunelveli. By the impugned
judgment and decree dated 30.06.2005, the appeal was dismissed and the
decision of the trial Court was confirmed. Challenging the same, this second
appeal came to be filed.
4.The second appeal was admitted on the following substantial question
of law:-
“Whether the Courts below are right in holding that the
execution of the Will dated 23.06.2000 is not legally
proved by the appellants?”
5.Heard the learned counsel on either side.
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S.A.(MD)No.907 of 2005
6.The learned counsel appearing for the appellants reiterated all the
contentions set out in the memorandum of grounds and called upon this Court
to answer the substantial question of law in favour of the appellants and set
aside the impugned judgments and decrees and dismiss the suit.
7.Per contra, the learned counsel appearing for the respondent submitted
that the Courts below have concurrently held that the suit Will propounded by
the defendants was not established. Since it is a pure question of fact, this
Court exercising jurisdiction under Section 100 of Civil Procedure Code may
not interfere with such a concurrent finding of fact. He called upon this Court
to dismiss the second appeal.
8.I carefully considered the rival contentions and went through the
evidence on record. The learned counsel appearing for the appellants even
before commencing his submissions made it clear that dehors the outcome of
the second appeal, the appellants are ready to give 1 acre and 25 cents of land
on the eastern side of the fourth schedule comprised in Survey No.1311/2. The
first appellant/Esther Packiathai has also filed an affidavit to this effect. The
same is taken on record.
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S.A.(MD)No.907 of 2005
9.Though this should substantially address the concerns of the plaintiff
and the matter could be disposed of on this basis, the learned counsel appearing
for the appellants called upon this Court to render adjudication on merits also.
The father of the plaintiff namely, Andrews Andrea was the Vice President of
the local panchayat and also a member of the local pastorate committee. That
he was in a sound disposing state of mind till the very end is spoken to by
D.W.3/Palani, a panchayat staff. The question that arises for consideration is
whether the suit Will dated 23.06.2000 was proved by the defendants. Since
the defendants propounded the said Will, the burden to prove the same lay only
on them. Section 68 of the Indian Evidence Act and Section 63 of Indian
Succession Act are the relevant provisions.
10.Section 68 of the Indian Evidence Act reads as follows:
“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 its execution, if there be an attesting witness alive,
and subject to the process of the Court and capable of giving evidence:
1[Provided that it shall not be necessary to call an attesting witness in
proof of the execution of any document, not being a Will, which has been
registered in accordance with the provisions of the Indian Registration
Act, 1908 (16 of 1908), unless its execution by the person by whom it
purports to have been executed is specifically denied.]”
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S.A.(MD)No.907 of 2005
11.Section 63 of the Hindu Succession Act reads as follows:-
“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.
(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 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.”
12.Ex.B1 was attested by one Kovilpandi and one Lingam. Kovilpandi
was examined as D.W.2. D.W.2 deposed that the testator/Andrews Andrea
asked him to be a witness in the Will to be executed by him. Accordingly D.W.
2 went to the office of the scribe on 23.06.2000 at about 10.00 a.m. D.W.2
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S.A.(MD)No.907 of 2005
further deposed that based on the instructions given by Andrews Andrea, the
scribe wrote down the Will. Thereafter, he read the contents of it. Thereafter,
Andrews Andrea signed at the foot of each page of the Will. He clearly stated
that the scribe, Lingam as well as himself (D.W.2) saw the testator affixing his
signature in each page of the Will and thereafter, he signed as an attestor. When
the attestor affixed the signature, the same was duly witnessed by the testator as
well as the scribe and also the other witness namely, Lingam. In other words,
the testimony of D.W.2 indicates that all the ingredients set out in Section 63 of
the Indian Succession Act were fully satisfied. D.W.2 was cross examined.
During the course of the cross examination, D.W.2 stated that Lingam was
brought by the testator by himself and that D.W.2 did not have any
acquaintance with the said Lingam. The cross examination was more on the
mental condition of the testator. In fact the signature attributed to the testator
was also disputed. But no serious question was posed as regards the role
played by Lingam, the other witness. D.W.2 was cross examined on
20.04.2004. The defendants evidence was completed on 26.04.2004.
Thereafter, the plaintiff's side was reopened and the other attestor namely,
Lingam was examined as P.W.3. P.W.3 was examined on 16.07.2004 after the
plaintiff's side was reopened. P.W.3 admitted that the signature found in Ex.B1
was his signature. He however stated that he did not witness anybody affixing
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S.A.(MD)No.907 of 2005
their signatures. He claimed that he went to the office of the scribe for private
purpose and based on the request of the scribe, he put his signature. The courts
below have held that the suit Will was not proved only in the light of the
testimony of P.W.3/Lingam.
13.As rightly pointed out by the learned counsel for the appellants, the
Courts below have failed to take into account Section 71 of the Indian Evidence
Act, 1872. The said provision reads that if the attesting witness denies or does
not recollect the execution of the document, its execution may be proved by
other evidence. In the case on hand, the defendants have not only filed the
original Will but also examined one of the attestors. The testimony of the
attestor/Kovilpandi is in total consonance with Section 63 of the Indian
Succession Act. Thus, the defendants have already proved the Will as
contemplated under Section 68 of the Indian Evidence Act. It is significant to
note that no suggestion was put to D.W.2 that the other witness/Lingam did not
witness the execution of the Will. Without putting any such suggestion or
question, after the defendants' side was closed, the plaintiff reopened her side
and examined the said Lingam on her side. Lingam admitted that the signature
found in Ex.B1/suit Will is very much his signature. After so admitting, he
undermined the case of the defendants by stating that he did not witness the
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S.A.(MD)No.907 of 2005
testator or the other witnesses putting their signature in the document. The
question is whether merely because Lingam/P.W.3 had not chosen to support
the defendants, the suit Will can be said to have been not proved. The Courts
below ought to have invoked Section 71 of the Indian Evidence Act. Merely
because one of the attesting witness did not support the case of the propounder,
that would not automatically mean that the Will was not proved. The Courts
below ought to have seen that whether the propounder has proved the Will by
other evidence. In this case, the propounder had examined a direct witness
namely, one of the attestors of the Will. The original Will has been marked.
The Will is also a registered document. That it was a registered document
carries with a presumption of validity (vide AIR 1995 SC 1852 (PPK Gopalan
Nambair v. PPK Balakrishnan Nambiar and Others in Paragraph Nos.4 and 5).
The plaintiff initially submitted that she was not aware as to who was this
Lingam. Only after the defendants' side was closed, she reopened her side and
examined him on her side. Lingam does not appear to be a credible witness.
The Courts below ought to have held that the suit Will was established by the
propounder by producing the original Will and by examining D.W.2. Since the
Courts below have lost sight of the mode of proof set out in Section 71 of the
Indian Evidence Act, I answer the substantial question of law in favour of the
appellants. The judgments and decrees of the Courts below are set aide.
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S.A.(MD)No.907 of 2005
However, in view of the undertaking affidavit filed by the first appellant, there
will be a decree in favour of the plaintiff allotting 1 acre and 25 cents on the
eastern side of Survey No.1311/2 in Sivalarkulam Village, Alangulam Taluk,
Tenkasi District (Item No.4 in the suit schedule). As and when the plaintiff
applies for measurement and demarcation of the property now allotted to her,
she would extend her fullest cooperation.
14.The second appeal is disposed of on these terms. No costs.
Consequently, connected miscellaneous petition is closed.
07.09.2021
Index : Yes / No
Internet : Yes/ No
ias
Note :In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
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S.A.(MD)No.907 of 2005
To:
1.The Principal District Court,
Tirunelveli.
2.The Principal Sub Court,
Tenkasi.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.907 of 2005
G.R.SWAMINATHAN, J.
ias
S.A.(MD)No.907 of 2005
07.09.2021
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