1. This appeal is directed against the judgment of N. S. Ramaswami J. in A. S. No. 435 of 1969 confirming the decision of the Sub Court, Coimbatore in O. S. No. 345 of 1964.
2. The suit O. S. No. 345 of 1964 has been filed by one Rathnammal, the first respondent herein, for partition and separate possession of her l/5th share in the suit properties consisting of a house in Coimbetore and certain lands in Peria Godiveri village in Gobichettipalayam taluk. The plaintiff and defendants 2 to 4 are the children of the first defendant through his wife Annammal who died in December 1952. The suit properties belonged to Annammal. On the ground that Annammal died interstate the plaintiff has claimed her one-fifth share in the suit properties. The fourth defendant who is another daughter of Annammal also claimed her one-fifth share by paying the necessary court-fee on her written statement. During the pendency of the suit the first defendant died. Thereafter the plaintiff and the fourth defendant each claimed one-fourth, share,
3. Defendants 2 and 3 who are the sons of Annamal had set up a will dated 15-2-1952, as the last will and testament left by Annammal. Under that will Annammal's two daughters, namely, the plaintiff and the fourth defendant got only a sum of Rs. 1,000 each and all the other properties are to be taken by defendants 2 and 3 with a life interest to the first defendant. The plaintiff has questioned the validity, truth and genuineness of the said will and her specific case is that the will is a forged document. She also alleged that in any event the will should be taken to have been brought about by undue influence and coercion on the part of the first and third defendants.
4. The trial court on a due consideration of the entire evidence on record held that the execution of the will Exhibit B-l has not been duly proved. In that view the trial court passed a preliminary decree for partition. The decision of the trial court was challenged in appeal before this court by the third defendant. N. S. Ramaswami J. dismissed the appeal holding that though the will has been registered there was no evidence on the basis of which one can safely conclude that Annammal herself did appear before the Sub Registrar and admitted, the execution of the said document, that the evidence of D. W. 1, the Sub Registrar will merely establish that a person calling herself Annammal appeared before him and that she admitted the execution of the will, but that it is quite inconclusive to show that Annammal, the mother of the plaintiff admitted the execution of the document before the Sub Registrar, that in view of the continued illness of Annammal it is possible that some one else impersonated her before the Sub Registrar and that, therefore, it is not possible to hold that the execution of the will Ex. B-l has been duly proved. He also held that the provisions of Section 69 of the Evidence Act have not been satisfied and D. W. 3 the only attesting witness alive who is said to have attested the document has denied the same. The said decision of the learned Judge has been challenged in this appeal by the third defendant.
5. Thus the only question that arises in this appeal is as to whether the execution of the will Ex. B-l has been duly proved. The question as to whether Ex. B-l is proved has to be decided in the light of Sections 67 and 69 of the Evidence Act and Section 63 of the Indian Succession Act. "Under Section 67 of the Evidence Act, if a document is alleged to be signed by any person the signature of that person must be proved to be in his handwriting and for proving such a handwriting the opinions of experts and of persons acquainted with the handwriting of that person are made relevant under Sections 45 and 47 of the said Act. Section 68 deals with the proof of the execution, of the document required by law to be attested and it provides that such, a document shall not be used as evidence until one attesting witness at least has been, called for the purpose of proving its execution. Section 63 of the Indian Succession Act provides for special requirements of attestation of wills and it says that a will shall be attested by two or more witnesses each of whom, has seen the testator sign or affix his mark in the will and each of the witnesses had signed the will in the presence of the testator. We have to, therefore, consider the evidence adduced lay the parties in this case in the light of the above statutory provisions.
6. In considering the question whether the will Ex. B-l has been duly proved, certain admitted facts have to be noted. The agricultural lands covered by the suit are in Peria Kodiveri village and the first defendant was living there. Annammal has been living with ham till 1951, when, she left him and went over to Coimbatore, and bad been living with the plaintiff since then. Annammal was suffering from cancel even before 1951 and she had been taken to Vellore and Madras for treatment by the plaintiff. The plaintiff would allege that ever since 1951, the first defendant has been living in the said village with a mistress by name Malaikari and that the will has been forged by the first defendant and that it has been created using her as a tool. This is however disputed by the first and third defendants. But the fact that Annammal continued to live with the plaintiff in Coimbatore and that she was suffering from, cancer has not been disputed. As a mattes of feet, the evidence of P. W. 1, in this regard has not been challenged in cross-examination though a faint allegation was made on behalf of the third defendant that Annammal went over to Coimbatore only just two months prior to her death. In fact the third defendant as D. W. 3 did not follow up the above suggestion made to the plaintiff that her mother went to Coimbatore only two months prior to her death but gave an entirely different version that his mother came to Coimbatore about four months before her death. It is in this background we have to see whether the execution of the will Exhibit B-l has been proved.
7. The will Ex. B-l has been attested by 3 persons apart from the scribe, one Krishna Rao of Satyamangalam. It is said that out of the said four persons only one is alive and the rest are dead. The only attest or who is alive is one Ranga Naicken who has been examined as D. W. 3. The evidence of D. W. 3 is that he did not attest any will as claimed by the third defendant. In fact D. W. 3 is not a signatory to Ex. B-l and Ex; B-l contains only a mark said to have been made by D. W. 3 in token of attestation. D. W. 3 who is said to have made the mark when confronted with the mark found in Ex. B-l denied having made any such mark. He also denied any knowledge about the document Ex. B-l. He is categorical in his statement that he was not present when Annammal is alleged to have executed the will Ex. B-l. Thus, the will Ex. B-l cannot be said to have been proved through any of the attestors or the scribe. Therefore, the third defendant has examined the other witnesses to prove the execution of the will.
8. The other witnesses examined are D. W. 1 who was the Sub Registrar of Satyamangalam from 1951 to 1955, and who has registered the will Ex. B-l. D. W. 2, Chinna Naichi Navithan, son of the second attestor, Palani Navithan, and D. W. 5 one Arogiasami. It is the evidence of D. W. 1 the Sub Registrar, that the testatrix Annammal presented Ex. B-l for registration on 15-2-1952, that he adopted the usual procedure in registering Ex. B-2, that he had also asked the testatrix whether the will was written according to her wishes and the particulars found in Ex. B-l were correct and that the testatrix answered these questions in the affirmative. He has also deposed that the testatrix was in good health physically and mentally, at the time of the registration and he took her thumb impression and signature in the course of the registration of the document Ex. B-l'.
9. D. W. 2 has deposed that his fattier Palani Navithan died in 1953, that he is the second attestor as in Ex. B-l and that he knew his father's signature. He however admitted that he does not know personally about his father signing the will. D. W. 5 has deposed that he is acquainted with Annammal's signature and that the signature found in Exhibit B-l was that of Annammal and that Annammal's physical condition at the relevant time was normal. He however admits that his paternal aunt is the mother-in-law of the third defendant and that he came to know about the details of the will through Annammal when negotiation took place for the 3rd defendant's marriage in May 1952. This witness also admits that he has not seen Annammal signing Ex. B-l. He further stated that he could recognise the signature of Annammal, as he had received two or three letters from Annammal in connection with the marriage of the third defendant. The question is whether the evidence of D. Ws. 1, 2 and 5 even if accepted is sufficient to prove the execution of the will Ex. B-l.
10. No doubt, D. W. 1, the Sub Registrar has deposed that one person called Annammal appeared before him and presented Ex. B-l for registration and that he followed the usual procedure in registering the document. D. W. 1 does not know Annammal personally. Therefore his evidence can only prove that one person styling herself as Annammal appeared before him and presented the document for registration and answered his questions and put her signature and thumb impression in the document Exhibit B-l in his presence. Tin's evidence is quite insufficient to show that Annammal has in fact presented the document for registration. There is absolutely no evidence that Annammal did go to the Sub Registrar's Office for registering Ex. B-l or that the person who appeared before the Sub Registrar and presented the document is Annammal herself. Since there is a possibility of someone else impersonating Annammal, the third defendant should prove conclusively that Annammal was the person who appeared before the Sub Registrar and presented the document for registration, especially when a suggestion has been made by the plaintiff that one Malaikari, the mistress of the first defendant, was made to impersonate Annammal before the Sub Registrar. Thus the evidence of D. W. 1, the Sub Registrar is quite inadequate to prove that Annammal herself appeared before him and presented the document for registration.
11. D. W. 2 merely identifies the signature of Palani Navithan found in Ex. B-l as that of his father. The mere fact that the signature of Palani Navithan is proved, in our opinion, is not sufficient to prove the due execution of the will. The evidence of this witness is relied on for proving the signature of one of the attesting witnesses and thus enable the third defendant to adduce secondary evidence regarding the due execution of the will. The evidence of D. W, 2 will be relevant only for purposes of Section 69 of the Evidence Act. Section 69 will come into play only when no attesting witness can be found. In this case, as already stated, an attesting witness D. W. 4 has been examined and he has denied his attestation of the document. Therefore Section 69 can have no application. The evidence of D. W. 2, therefore, even if accepted, will not help the third defendant.
12. The only attesting witness examined before the Court has denied his attestation and any knowledge of the execution of the document by the testatrix. The execution of Ex. B-l may, therefore, be proved by other evidence in view Section 71 of the Evidence Act. It is in this connection the evidence of D. W. 5 becomes material. He claims that he has known the signature of Annammal as she had written two or three letters to him in connection with the third defendant's marriage. The said letters have not been produced. Admittedly the third defendant was married in May 1952. But as already noticed, from 1951 onwards Annammal has been living in Coimbatore (Sowripalayam). D. W. 5 also is a resident of Sowripalayam, Coimbatore. When D. W. 5 and Annammal live in the same place, (Sowripalayam) it is not possible that Annammal had been writing letters to him regarding the marriage of his son, the third defendant. Admittedly D. W. 5 is a person interested in the third defendant inasmuch as the third defendant has married his paternal aunt's daughter and he was instrumental in bringing about the marriage. In these circumstances, it is not possible to accept the version of D. W. 5 that he can identify the signature of Annamal in the disputed document Ex. B-l. Even assuming that the. signature found in Exhibit B-l is that of Annammal, it cannot automatically follow that Annammal had executed the will Ex. B-l. The identification of the signature of Annammal in the document will only mean that the document contains the signature of Annammal. That will not amount to proof of the execution of the document, as there is a possibility of Annammal's signature having been taken on blank paper or on a misrepresentation that the document represents a different transaction. We have to therefore agree with the view of N. S. Ramaswami J. that the due execution of the will Exhibit B-l has not been proved in this case. 13, Since the learned Judge in his judgment had commented upon the non-production of the mortgage deed said to have been executed by Annammal for comparison of her signature found in the will with that in the mortgage deed, the appellant has chosen to file an application for reception of additional evidence in this Letters Patent Appeal. But we are of the view that in view of the provisions of Order 41, Rule 27 it is not possible to permit the appellant to adduce additional evidence. The appellant could have called for the documents which are now sought to be marked as additional evidence given at the time of the trial of the suit by exercising due diligence and there is no reason as to why these documents could not have been called for at the stage of the trial. We do not, therefore, see any justification for permitting, the appellant to mark the documents as called for in C. M. P. Nos. 5067 of 1975, nor are we satisfied that there is any justification for sending the documents to an expert for comparing the alleged thumb impression and signature of Annammal found in the documents with the thumb impression and signature found in the will Ex. B-l. In the circumstances the appeal fails and is dismissed with costs. The petition for the appointment of receiver is dismissed.