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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.