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CASE NO.: Appeal (civil)  1387 of 1999

PETITIONER: Meenakshiammal (Dead) through LRs & Others

RESPONDENT: Chandrasekaran & Another

DATE OF JUDGMENT: 03/11/2004

BENCH: ASHOK BHAN & S.H. KAPADIA

JUDGMENT: J U D G M E N T

KAPADIA, J.

       This civil appeal, by grant of special leave, is  directed against a judgment and order dated 20.11.1997  of a Single Judge of the Madras High Court allowing  Second Appeal No.1996 of 1982.          For the sake of convenience, the parties herein are  referred to as they are arrayed in the trial Court.

       The brief facts giving rise to this appeal are as  follows:\027          One Velu Pillai had two wives.  The said Velu  Pillai by his first wife had a daughter by name Kamakshi  and a son by name Sivaperumal (hereinafter referred to  as "Siva").  The said Velu Pillai by his second wife had a  son by name Sadasivam and two daughters, Kaveri  (spinster) and Gnanambal.  That, Kamakshi, the real  sister of Siva, had three children, namely, Meenakshi  Ammal (plaintiff no.1), Arunachalam Pillai (plaintiff  no.2) and Palani Velu Pillai (plaintiff no.3).  Appellants  herein are the legal representatives of the said plaintiffs.

       Defendant no.1, Chandrasekaran (respondent no.1)  is the son of Sadasivam whereas defendant no.2,  Vadivelu (respondent no.2) is the son of Gnanambal.   They are the children of the step brother and the step  sister of Siva.

       Siva died as bachelor on 6.11.1978.  Siva and his  step brother Sadasivam had jointly executed a deed of  settlement on 10.6.1956.  Under the said settlement, the  two brothers settled some of their properties in favour of  Kaveri and divided the rest of their properties amongst  themselves.  

       In the present matter, we are concerned with the  separate properties of Siva (since deceased).  

       Meenakshi, Arunachalam Pillai and Palani Velu  Pillai, children of Kamakshi, instituted title suit bearing  O.S. No.247 of 1981 in the Court of District Munsif of  Thiruthuraipundi  (hereinafter for the sake of brevity  referred to as "the trial Court) for a declaration and for  recovery of possession of the suit properties of Siva  alleging that they were the children of his real sister and,  consequently, were  entitled to succeed to his properties;  that defendant nos.1 and 2 were the children of the step

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brother and the step sister of the deceased and in the  circumstances they, the plaintiffs, were entitled to  succeed to the properties of Siva, in preference to the  defendants.  According to the plaintiffs, neither  Sadasivam nor Gnanambal, much less than their children,  were entitled to succeed to the properties of late Siva.

       In the written statement, the aforestated defendants  denied that Siva died intestate.  That, Siva died on  6.11.1978 leaving behind the will dated 19.10.1978  (Ex.B/8).  In the written statement, it was submitted that  at the time of his death, Siva was in sound disposing state  of mind.  It was further alleged that Siva had devised all  his properties under the said will to be taken in equal  share by the said two defendants.  That, the said  defendants were put in possession and that they were  cultivating the said lands since then.  It was alleged that  the said Kamakshi and Siva were not on cordial terms;  that she never looked after her brother, Siva, who resided  all along with his step sister Kaveri.  That, Palani Velu,  plaintiff no.3 herein, had sued Siva, during his life time.   In the circumstances, it was urged that Siva disinherited  the plaintiffs vide the aforestated will (Ex.B/8), which  was duly executed and attested in accordance with the  provisions of section 63 of the Succession Act, 1925.  

       On the above pleadings, five issues were framed  by the trial Court.  We are mainly concerned with first  two issues, namely, (1) Whether the will Ex.B/8 was true  and valid?; and (2) whether the will Ex.B/8 was acted  upon?

       In proof of the aforestated will, Ex.B/8, the  defendants examined five witnesses including the 2nd  defendant (DW1) who deposed that the deceased, Siva,  had asked the defendants to fetch a scribe and the  attesting witnesses as he wanted to execute the will in  their favour.  Accordingly, they went and fetched the  attesting witnesses and the scribe.  DW1 further deposed  that Siva was 85 to 90 years old when he died on  6.11.1978 and that he died after 15 days from the date of  execution of the said will.  DW1 further deposed that  Siva was unable to walk freely as he had a fracture in his  thigh and that he was bed-ridden for a period of six  months before his death.  However, DW1 further stated  that Siva was hale and hearty in other respects and he  was in sound disposing state of mind.  DW1 further  deposed that he was attending on the deceased during his  treatment.  DW1 further deposed that the plaintiffs  resided in the village, Vettaikaran, about 15 miles away  from the suit village where Siva was living.  DW1 further  deposed that Siva was looked after by Kaveri and  Sadasivam and, therefore, the will, Ex.B/8, was duly  executed by Siva in favour of the defendants.  DW1  denied that the deceased Siva had become senile and that  he was incapable of judging things for himself.  DW1  denied that Ex.B/8 was executed at the instance of the  defendants and without the knowledge of the deceased \026  testator who allegedly had lost all his mental faculties.   DW2, Vaithinathan, the scribe deposed that as requested  by Siva, he was taken by DW1 to Siva’s residence, where  in the presence of Siva and under his instructions, the  will was written and that too in the presence of the  attesting witnesses. That in the presence of DW2, Siva,  had read the contents of the will before subscribing his

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signature thereon.  Further, in the present case, the  defendants also examined the attesting witnesses, who  have deposed in proof of the execution of the said will.   They have deposed that the deceased Siva was in a sound  disposing state of mind and he had executed the will on  his own.    

       In the light of the above evidence, vide judgment  and decree dated 30.9.1981, passed by the trial Court, it  was held, that, the said will, Ex.B/8, was really and  voluntarily executed by Siva in favour of the defendants.   The trial Court also found that the defendants had taken  possession of the properties bequeathed to them under  Ex.B/8 in pursuance of the said will.  That the defendants  were in possession and enjoyment of the suit lands in  their own right in pursuance of the said will.  That the  will was proved and acted upon by the defendants and  consequently, the plaintiffs were not entitled to the relief  of declaration and for recovery of possession.  In view of  the said findings, the suit was dismissed.  

       Being aggrieved, the plaintiffs preferred an appeal  bearing A.S. No.48 of 1982 in the Sub-Court,  Nagapattinam (hereinafter for the sake of brevity referred  to as "the lower appellate Court) which came to the  conclusion, that, the defendants were instrumental in  execution of the will (Ex.B/8) inasmuch as DW1 had  brought the attesting witnesses to the house of Siva.   That, although the will was dated 19.10.1978 and though  Siva was hale and hearty as alleged, no steps were taken  to get the will registered till 6.11.1978 when the testator  died.  That, no cogent reason had been given for non- registration of the will during the said period.  That, no  reason had been given as to why Siva had excluded the  children of his own sister, Kamakshi.  That, the will is  written by DW2 in black ink whereas the signature of the  testator is in a different ink and consequently Ex.B/8 was  forged.  That, although Siva was undergoing treatment in  the hospital, Ex.B/8 was executed at his residence.  That,  there were contradictions in the evidence of the  witnesses.  In the circumstances, it was held, that the will  dated 19.10.1978 executed by Siva was not proved.  In  the result, the appeal was allowed and the judgment and  decree of the trial Court was set aside.   

       Aggrieved, the respondents herein preferred  Second Appeal No.1996/82 in the High Court.  In the  said appeal, the High Court formulated the following  substantial question of law: "Whether the Lower Appellate Court is right  in law in holding that suit "Will" was  procured and forged one in spite of the fact  that there was no pleading and no evidence  to that effect?"          

       Answering the above question, it was held by the  High Court that in the plaint, there was no challenge to  the validity or genuineness of the will despite the fact  that full particulars of the will were supplied to the  plaintiffs by the reply dated 26.1.1979.  That, the will  was produced in the suit by the defendants who had  proved the same.  It has been further held that the  plaintiffs had not alleged forgery or undue influence in  the plaint and in the absence of such pleas, it was not

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open to the lower appellate Court to hold that the will  was procured or forged.  The High Court examined the  evidence and came to the conclusion that the execution of  the will by Siva was proved; that Siva was at the time of  execution of the will having sound disposing mind and in  the circumstances, the findings recorded by the lower  appellate Court were perverse and not proper.  In the  result, the appeal was allowed and the judgment and  decree of the trial Court, dismissing the suit, was  restored.  Hence, this civil appeal.   

       Mr. K.B. Sounder Rajan, learned advocate  appearing on behalf of the appellants submitted that the  plaintiffs had instituted the suit for declaration and for  recovery of possession in which the defendants set up  Ex.B/8.  He submitted that although in the plaint, forgery  was not alleged, the lower appellate Court was right in  returning the finding of forgery as the defendants who  relied on the will had failed to remove the suspicious  circumstances surrounding the will, including use of  different ink between the signature of Siva in Ex.B/8 and  the contents thereof.  In this connection, learned advocate  for the appellants submitted that the attesting witnesses  were brought to the house of Siva by the defendants.   That, the defendants, who were the sole beneficiaries,  were instrumental in procuring the will.  That, there was  no reason for Siva to exclude the plaintiffs.  That, no  reason has been given for not getting the will registered  till 23.4.1980.  That, Siva had become senile and was  ailing at the time of the will.  That, the will was got made  under undue influence.  In the circumstances, it was  urged, that, the will is not proved to be genuine.  It was  urged that the High Court had erred in interfering with  the well reasoned judgment of the lower appellate Court.   

       We do not find any merit in this civil appeal.  The  onus of proving the will is on the propounder and in the  absence of suspicious circumstances surrounding the  execution of the will, proof of testamentary capacity and  proof of the signature of the testator, as required by law,  is sufficient to discharge the onus.  Where, however,  there are suspicious circumstances, the onus is on the  propounder to explain them to the satisfaction of the  Court before it accepts the will as genuine.  Even where  the circumstances give rise to doubts, it is for the  propounder to satisfy the conscience of the Court.  The  suspicious circumstances may be regarding the  genuineness of the signature of the testator, the condition  of the testator’s mind, the disposition made in the will  being unnatural, improbable or unfair in the light of  relevant circumstances, or there might be other  indications in the will to show that the testator’s mind  was not free.  In such a case, the Court would normally  expect that all legitimate suspicions should be completely  removed before the document is accepted as the last will  of the testator.   

       In the present case, the evidence on record  indicates that Siva was a bachelor.  His relationship with  his real sister Kamakshi was not cordial.  The deceased  used to live with his step sister Kaveri.  At the time of the  execution of the will, Siva was 85 years old and had  suffered fracture.  He was mentally alert.  He was looked  after by the defendants.  The plaintiffs were nowhere in  sight during his hospitalization or his treatment.  In the

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circumstances, the defendants have proved the reason for  exclusion of the plaintiffs from the benefits under the  will.           In the matter of execution of the will, the evidence  of DW2 shows that DW1 had come to fetch him at the  behest of Siva.  DW2 wrote the will under the  instructions of Siva.  Before signing, Siva had read the  will.  The will was signed in the presence of the attesting  witnesses.  The said witnesses had attested in presence of  Siva.  There is no evidence on record to indicate that Siva  had become senile.  In this connection, it may be pointed  out that in October, 1978, Siva had alienated one of his  several properties for consideration which circumstance  shows that he had a sound disposing mind and that there  was no substance in the allegation of the plaintiffs that  the testator had become senile.  As rightly pointed out by  the trial Court, it was the plaintiff’s own case, while  cross-examining DW1, that Siva was a prudent and wise  man.  Further, we are in agreement with the view  expressed by the trial Court that even in the cross- examination, there was no suggestion put to DW1 that  the signature on Ex.B/8 was not that of Siva.  That, in the  cross-examination, no motive was suggested against  DW2 to DW5 for supporting the case of the defendants.   Further, the evidence indicates that Siva was hale and  hearty and he was advised to get the will registered,  which he refused, saying that he was in good health and  expected to live long.

       In the case of Sm. Chinmoyee Saha v. Debendra  Lal Saha & others reported in [AIR 1985 Calcutta 349],  it has been held that if the propounder takes a prominent  part in the execution of the will, which confers a  substantial benefit on him, the propounder is required to  remove the doubts by clear and satisfactory evidence.   Once the propounder proves that the will was signed by  the testator, that he was at the relevant time in a sound  disposing state of mind, that he understood the nature and  effect of the disposition and put his signature out of his  own free will, and that he signed it in presence of the  witnesses who attested it in his presence, the onus, which  rests on the propounder, is discharged and when  allegation of undue influence, fraud or coercion is made  by the caveator, the onus is on the caveator to prove the  same.   

       In the case of Ryali Kameswara Rao v. Bendapudi  Suryaprakasarao & others reported in [AIR 1962 AP  178] this Court while discussing the provisions of section  63 of the Succession Act, 1925, has held that the  suspicion alleged must be one inherent in the transaction  itself and not the doubt that may arise from conflict of  testimony which becomes apparent on an investigation of  the transaction.  That suspicious circumstances cannot be  defined precisely.  They cannot be enumerated  exhaustively.  They must depend upon the facts of each  case.  When a question arises as to whether a will is  genuine or forged, normally the fact that nothing can be  said against the reasonable nature of its provisions will be  a strong and material element in favour of the  probabilities of the will.  Whether a will has been  executed by the testator in a sound and disposing state of  mind is purely a question of fact, which will have to be  decided in each case on the circumstances disclosed and  the nature and quality of the evidence adduced.  When

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the will is alleged to have been executed under undue  influence, the onus of proving undue influence is upon  the person making such allegation and mere presence of  motive and opportunity are not enough.

       In the case of Madhukar D. Shende v. Tarabai  Aba Shedage reported in [AIR 2002 SC 637], it has been  held as follows:\027 "8.     The requirement of proof of a Will is  the same as any other document excepting  that the evidence tendered in proof of a Will  should additionally satisfy the requirement  of Section 63 of the Indian Succession Act,  1925 and Section 68 of the Indian Evidence  Act, 1872.  If after considering the matters  before it, that is, the facts and circumstances  as emanating from the material available on  record of a given case, the Court either  believes that the Will was duly executed by  the testator or considers the existence of  such fact so probable that any prudent  person ought, under the circumstances of  that particular case, to act upon the  supposition that the Will was duly executed  by the testator, then the factum of execution  of Will shall be said to have been proved.   The delicate structure of proof framed by a  judicially trained mind cannot stand on weak  foundation nor survive any inherent defects  therein but at the same time ought not to be  permitted to be demolished by wayward  pelting of stones of suspicion and  supposition by wayfarers and waylayers.   What was told by Baron Alderson to the  Jury in R  v. Hodge, 1838, 2 Lewis CC 227  may be apposite to some extent \027 "The  mind was apt to take a pleasure in adapting  circumstances to one another and even in  straining them a little, if need be, to force  them to form parts of one connected hole;  and the more ingenuous the mind of the  individual, the more likely was it,  considering such matters, to overreach and  mislead itself, to supply some little link that  is wanting, to take for granted some fact  consistent with its previous theories and  necessary to render them complete."  The  conscience of the Court has to be satisfied  by the propounder of Will adducing  evidence so as to dispel any suspicions or  unnatural circumstances attaching to a Will  provided that there is something unnatural or  suspicious about the Will.  The law of  evidence does not permit conjecture or  suspicion having the place of legal proof nor  permit them to demolish a fact otherwise  proved by legal and convincing evidence.   Well founded suspicion may be a ground for  closer scrutiny of evidence but suspicion  alone cannot form the foundation of a  judicial verdict \027 positive or negative.

9.      It is well-settled that one who  propounds a Will must establish the  competence of the testator to make the Will

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at the time when it was executed.  The onus  is discharged by the propounder adducing  prima facie evidence proving the  competence of the testator and execution of  the Will in the manner contemplated by law.   The contestant opposing the Will may bring  material on record meeting such prima facie  case in which event the onus would shift  back on the propounder to satisfy the Court  affirmatively that the testator did know well  the contents of the Will and in sound  disposing capacity executed the same.  The  factors, such as the will being a natural one  or being registered or executed in such  circumstances and ambience, as would leave  no room for suspicion, assume significance.   If there is nothing unnatural about the  transaction and the evidence adduced  satisfies the requirement of proving a will,  the court would not return a finding of ’not  proved’ merely on account of certain  assumed suspicion or supposition.  Who are  the persons propounding and supporting a  will as against the person disputing the will  and the pleadings of the parties would be  relevant and of significance."

       In the present case, the propounders of the will  have proved that the will was signed by Siva; that at the  time of execution of the will, he had a sound disposing  state of mind; and that he had reasons to exclude the  plaintiffs who did not care for him in his old age.  Lastly,  as stated above, the onus to prove forgery, undue  influence or collusion was on the plaintiffs who have  alleged that Ex.B/8 was forged. In the absence of such a  plea, the lower appellate Court had erred in holding that  the will was forged.  We are satisfied on examination of  the evidence that execution, attestation and genuineness  of the will has been proved as held by the impugned  judgment and in the circumstances, we find no merit in  this appeal.  

       In the result, the appeal fails and is dismissed, with  no order as to costs.