Madras High Court
Vincent Paul Raj vs A.Mary Banu Alias Banumathi on 28 August, 2023
C.M.A.No.1337 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.08.2023
Coram:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
C.M.A. No.1337 of 2018
1. Vincent Paul Raj
2. Vincent Premkumar
3. Dominic ... Appellants
Vs.
A.Mary Banu alias Banumathi ... Respondent
Prayer: This Civil Miscellaneous Appeal is filed under Section 229 of the
Indian Succession Act, to set aside the judgment and decree dated 08.02.2017
made in Probate Original Petition No.1 of 2003 on the file of the District
Court, Tiruvannamalai.
For Appellants : Mr.NA.Malaisaravanan
For Respondent : Mr. R.Krishnaprasad for
M/s.Sarvabhauman Associates
1/13
https://www.mhc.tn.gov.in/judis
C.M.A.No.1337 of 2018
JUDGMENT
This Civil Miscellaneous Appeal is filed to set aside the
judgment and decree dated 08.02.2017 made in Probate Original Petition
No.1 of 2003 on the file of the District Court, Tiruvannamalai.
2. The respondent herein filed a Probate Original Petition in
No.1 of 2003 for Probate of the Will dated 11.12.1991 executed in her
favour, by one B.Arulnathan, stating that she is the 3rd wife of the said
Arulnathan. The 2nd wife of the said Arulnathan died on 09.03.1990 and after
her demise, he married to the respondent herein on 11.10.1991 and it was a
registered marriage. After the marriage, they both lived together as husband
and wife. While the Arulnathan was in a sound disposing state of mind, had
registered the Will bequeathing the schedule mentioned property in favour of
the respondent herein on 11.12.1991. Subsequently, he died on 06.07.1998
and the respondent herein became entitled to the schedule mentioned
property as absolute owner. After the demise of the Arulnathan, the
respondent herein filed a Succession Original Petition No.2 of 1998 on the
file of the District Munsif Court, Arni, to declare herself to be entitled to the
pension amount of her deceased husband namely Arulnathan as his legal heir
https://www.mhc.tn.gov.in/judis
C.M.A.No.1337 of 2018
and the same was also ordered and the respondent herein was declared as the
wife of said Arulnathan. Thereafter, the respondent herein was receiving the
monthly pension. Subsequently, since the appellants herein disputed the title
of the respondent herein with regard to the petition mentioned properties, she
filed the Probate Original Petition for Probate of the Will dated 11.12.1991
executed in her favour, by her deceased husband. The Probate Court granted
Probate to the respondent herein by order dated 08.02.2017. Aggrieved by the
same, the respondents therein who are the children of the deceased
Arulnathan have filed the present appeal before this Court.
3. The learned counsel for the appellants submitted that one Arulnathan
married to his 1st wife and begotten children. After the death of his 1st wife,
he married to one Gunabooshanam as a 2nd wife and the property belongs to
the said Gunabooshanam and she executed a Will in favour of the children
born to Arulnathan and Thrisamary (1st wife) thorough a Will dated
20.02.1990. He would submit that since the property belongs to
Gunabooshanam, the Arulnathan has no right to execute any Will infavour of
the respondent herein/petitioner in Probate Original Petition as he has no
right in the property. Further, the said Arulnathan has got seven children. But
https://www.mhc.tn.gov.in/judis
C.M.A.No.1337 of 2018
the respondent herein has not impleaded all the legal representatives of the
said Arulnathan and she only impleaded 3 of his children and left the
remaining children. They challenged the very title of the said Arulnathan and
he has no right to bequeath the property. Further, the said Arulnathan could
not have married the respondent herein as his wife, since at the time of
alleged marriage, he was aged 65 years. Even otherwise, once the said
Arulnathan has no right and title in the property and he has no right to
execute any Will. Therefore, the respondent cannot get a better title and the
respondent has not proved the Will in the manner known to law. Even she has
not examined any of the attestors and therefore, the Will was not proved in
the manner known to law. The trial Court failed to appreciate the facts that
the petition is hit by non joinder of necessary parties and the Will was not
proved in the manner known to law. Therefore, the Probate granted to the
respondent herein, by the Court below is perverse and it is liable to be set
aside.
4. The learned counsel for the respondent would submit that the
marriage between the Arulnathan and the respondent herein is a registered
marriage and the same was not disputed by the appellants herein or any other
https://www.mhc.tn.gov.in/judis
C.M.A.No.1337 of 2018
legal representatives of the Arulnathan on earlier occasion. He further
submitted that even R.W.1 has clearly admitted the execution of Will.
Therefore, admitted documents need not be proved. Further, the alleged Will
said to have been executed by the said Gunabooshanam in favour of the
appellants and others, is not proved in the manner known to law and it is an
unregistered Will and the appellants herein simply challenged the said Will
and the appellants have no caveatable interest in the O.P. Therefore, the
Court below has rightly appreciated the evidence of P.W.1 and also R.W.1
wherein, he has admitted the execution of the Will. He would submit that
admission is the best piece of evidence and therefore, the trial Court rightly
appreciated the evidence and granted the Probate. He further submitted that
the respondent took much effort to examine the attesting witnesses. But, one
of the attestors was not able to find out and the other attestor died one year
before. Even the Scribe was not in a movable condition and he had lost his
eye sight. Therefore, the respondent could not prove the Will under Section
68 of the Evidence Act. The learned counsel placed reliance on the following
Judgements of the Hon'ble Supreme Court and also the Division Bench of
this Court.
1.Pentakota Satyanarayanan and Others Vs.
Pentakota Seetharatnam and Others reported in
https://www.mhc.tn.gov.in/judis
C.M.A.No.1337 of 2018
(2005) 8 SCC 67.
2.Janaki Devi Vs. R.Vasanthi and Others reported
in 2005 (1) CTC 11.
3. Irudayam Ammal Vs. Salayath Mary reported in
Vol.86 LW 122 (App. Nos.321 of 1965 and 562 of
1970, 1st August 1972)
5. The learned counsel for the respondent further submitted that if the
beneficiary of the Will is not able to prove the Will under Section 68 of the
Evidence Act and if it is a registered Will and the attestors and the testators
had signed before the Registrar, then the genuinity of the execution cannot be
challenged and the registration of the Will itself would give the presumption
of genuineness. Therefore, the Probate Court rightly appreciated both the oral
and documentary evidence and granted Probate. Therefore, there is no merit
in the appeal and that the appellants have not proved their caveatable interest
in the O.P. Therefore, the appeal is liable to be dismissed.
6. Heard the learned counsel for the appellants and the learned counsel
for the respondent and perused the entire materials available on record.
7. Admittedly the appellants are the children of one Arulnathan and the
https://www.mhc.tn.gov.in/judis
C.M.A.No.1337 of 2018
respondent herein is one of the wives of the Arulnathan. The Arulnathan said
to have executed a Will in favour of the respondent herein. After the death of
the said Arulnathan, the respondent herein filled a petition for Probate and the
Probate Court has also granted Probate which is now under challenge.
8. On a perusal of the materials, though the existence of the Will is not
in dispute, it is settled proposition of law that Will is a peculiar document
which is required to be attested. The Will has got to be executed under
Section 63 of Indian Succession Act and the same has to be proved under
Section 68 of Indian Evidence Act. In case, if the beneficiary or the person
who claims the right and interest in the Will is not able to prove the Will
under Section 68 of Indian Evidence Act, the yet another enabling provision
is Section 69 of Indian evidence Act. In the absence of proving the Will
under Section 68 of Indian Evidence Act, the beneficiary has to comply with
the provisions of Section 69 of Indian Evidence Act, whereas, in this case,
though the respondent herein has let the evidence stating that she tried to
summon the attestors and she came to know that one of the attestors was not
able to find out and the another attestor is no more and the Scribe was not in a
position to give evidence, as stated above, if the respondent was not able to
https://www.mhc.tn.gov.in/judis
C.M.A.No.1337 of 2018
comply with the provisions under Section 68 of Indian Evidence Act for
proving the Will, then the respondent should have taken efforts and proved
the Will under Section 69 of the Indian Evidence Act. But, there is no
material to show that the respondent had taken efforts to prove the Will under
Section 69 of the Act. Even there is no material to show that she made
attempts to find out the ways to prove the Will under Section 69 of the Act.
The Probate Court failed to consider the same. Even though the Probate Court
need not go in-depth about the title and other things, the Probate Court has to
satisfy the proof of execution of the Will. Unless the Will is proved, the
Probate cannot be granted, especially when the respondent herein had filed
the petition showing only some of the parties as respondents.
9. Though the learned counsel for the respondent submitted that the
Will was admitted and sought the aid of the decisions of the Hon'ble Supreme
Court and the Division Bench of this Court, this Court is of the view that
unless the respondent satisfies with the compliance of Section 68 or 69 of
Indian Evidence Act, she is not entitled to get the order of Probate. Section 69
of Indian Evidence Act is very clear that in case, if a Will is not able to prove
under Section 68 of the Act, then it has to be proved under Section 69 of the
https://www.mhc.tn.gov.in/judis
C.M.A.No.1337 of 2018
Act. Therefore, the citations referred to by the learned counsel for the
respondent is not applicable to the present case on hand. The facts and
circumstance of the case on hand and the case referred to by the learned
counsel for the respondent are distinguishable.
10. The learned counsel for the respondent reiterated the decision of
the Hon'ble Supreme Court in the case of Janaki Devi Vs. R.Vasanthi and
Others reported in 2005 (1) CTC 11. In that case, P.W.1 has seen the
execution of Will and signing of the testator before the attestors. But in this
case, P.W.1 has not stated anything that the Will was registered in their
presence before the registration office and she accompanied along with the
testator or at the time of registration, she was present in the registration
office. In the absence of the same, the said citation will not applicable to the
present case.
11. Therefore, this Court finds that the subject matter of Will, is not
proved in the manner known to law. Hence, the Probate granted by the
Probate Court is liable to be set aside.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1337 of 2018
https://www.mhc.tn.gov.in/judis
C.M.A.No.1337 of 2018
12. Accordingly, this Civil Miscellaneous Appeal is allowed. The
judgment and decree dated 08.02.2017 made in Probate Original Petition
No.1 of 2003 on the file of the District Court, Tiruvannamalai, is set aside.
28.08.2023
ksa-2
Index : Yes / No
Speaking Order : Yes / No
Neutral Citation Case : Yes/No
https://www.mhc.tn.gov.in/judis
C.M.A.No.1337 of 2018
To
1. The District Court,
Tiruvannamalai.
2. The Section Officer,
VR Section,
High Court,
Madras.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1337 of 2018
P.VELMURUGAN. J.
ksa-2
C.M.A. No.1337 of 2018
28.08.2023
https://www.mhc.tn.gov.in/judis
