1. The plaintiffs in O. S. No. 44 of 1954, on the file of the District Munsiff's Court, Triuvallur, sued to recover possession of immoveable properties described in the plaint schedules B to H. The suit properties originally belonged to one Namasivaya Chetti who died oil 17-6-1920, leaving behind his widow Ammayee Ammal. Ammayee Ammal died on 7-11-1953. The plaintiffs claim to be the reversioners entitled to succeed to the state of Namasivaya after the death of Ammayee Animal who, according to them, succeeded only to a limited estate.
The relationship of the plaintiffs to the deceased Namasivaya is that they are the father's brother's grandsons of Namasivaya. The 13th defendant in the suit is also related to Namasivaya in the same manner and in the same degree. The plaintiffs claimed that they along with the 13th defendant were entitled to succeed to, the suit properties which, they alleged, belonged originally to Namasivaya and then devolved upon Ammayee Ammal as a limited heir under the Hindu law.
The first defendant in the suit is, also a Gnai or a sapinda of the late Namasivaya. He is Namasivaya's father's brother's son's grandson. He is one degree more remote in his relationship to Namasivaya than the plaintiffs and the 13th defendant. Ammayee Ammal effected certain alienations during her lifetime and they were Ex. B. 16, dated 7-7-1942, B. 17 dated 7-7-1942 and B. 20 dated 15-9-1945.
The properties described in E and F schedules attached to the plaint are the properties said to be comprised in the alienations effected by Ammayee Ammal. The first defendant resisted the suit on the ground that Namasivaya did not the intestate but left his last will and testament Ex. B. 1, dated 17-6-1920, under which he made an absolute bequest of all the properties belonging to him on the date of his death in favour of his wife Ammayee Ammal.
The properties forming the subject matter of the suit appear to be the later acquisitions made by Ammayee Ammal from and out of the assets left behind by Namasivaya. The first defendant further claimed that Ammayee Ammal in turn executed her last will and testament Ex. B. 1 in the case dated 15-12-1952. Both Ex. B. 11, the will of Namasivaya and Ex. B. 1, the will of Ammayee Ammal, are unregistered wills. These wills were set up by the first defendant as to non-suit the plaintiffs who could make a claim only if Namasivaya had died intestate.
It must also be mentioned that even during the lifetime of Ammaye Ammal, the first defendant effected certain alienations of the suit properties which are covered by Exs. B. 2 to B. 7 comprising the plaint C, D, G, H schedule properties in favour of the defendants 2, 3, 4, 6, and 7 though in any event he had absolutely no title to the properties at the time of the execution of the sale deeds. But, nevertheless, he alleged to have obtained the thumb impressions of the deceased Ammayee Ammal to these transactions.
2. At the trial of the suit, the main controversy between the parties centred round the genuineness of the two wills, Exs. B. 11 and B. 1. The plaintiffs impugned both the wills as being fabricated and brought about by the first defendant with ulterior motives to defeat their reversionary rights. The first defendant and some of the alienees, who sailed with him, took up the position that while both the wills were genuine and duly executed by the respective executants, the suit properties did not belong to the estate of Namasivaya but were the absolute properties of Ammayee Ammal whether she validly got a bequest from her husband of his estate or not.
The learned District Munsiff of Tiruvallur, who tried the suit held that Ex. B. 11, the will of Namasivaya was a genuine will but Ex. B. 1 the will of Ammayee Ammal was not a genuine will. He further held that the suit properties had not been established to belong to the estate of Namasivaya. In this view of the matter, he non-suited the plaintiffs completely.
3. There was an appeal by the aggrieved plaintiff before the learned District Judge of Chingleput in A. S. No. 10 of 1957. The learned District Judge, on a review of the evidence in the case, concurred with the findings of the trial court on the question of the genuineness of both Exs. B. 11 and B. 1. The learned District Judge also reached the conclusion that Ex. B. 11 was a true will, while Ex. B. 1 had not been proved to be a true will. The appellants before the learned District Judge, namely, the plaintiffs in the suit, had filed an application I. A No. 234 of 1957 for an amendment of the plaint.
They contended that even if it were to be held that Ammayee Ammal got the properties as an absolute bequest by reason of the will of Namasivaya, and even if the properties could be said to belong to Ammayee Ammal, they were still the heirs entitled to succeed to Ammayee, if Ammayee herself did not make a testamentary disposition of the properties. It must be pointed out that if the finding in respect of both the wills is accepted, the prayer on behalf of the plaintiffs to rest the title on the alternative footing is well founded.
Though the defendants in the suit raised objections to the plaint being amended, at the stage of the appeal, the learned District Judge for valid and cogent reasons held that, in the circumstances of the case, the prayer for amendment of the plaint in the manner sought by the plaintiffs was proper. He accordingly directed the amendment of the plaint. Consequent on this amendment, the learned District Judge had to remit the matter to the trial court for fresh disposal, giving opportunity to the contesting defendants to enter the claim of the plaintiffs in the amended form. He gave certain directions casting additional issues and remitted the matter to the trial court for a fresh trial.
4. The above second appeal has been preferred by the plaintiffs against the said order of remand passed by the learned District Judge, I am unable to see how a second appeal is at all competent. The only order passed by the learned District Judge is the order for remand. There is no decree against which a second appeal can be preferred. No doubt he recorded findings on the question of the genuineness of both Exs. B. 11 and B. 1.
It might have been open to the plaintiffs to have preferred a civil miscellaneous appeal or a civil revision petition to challenge that portion of the order of the learned District Judge which contains a finding adverse to them on the question of the genuineness or Ex. B. 11. But curiously enough the plaintiffs have preferred only a second appeal. I have no hesitation in holding that the second appeal is not maintainable. The second appeal is therefore liable to be dismissed on this short ground.
But I do not want to take a technical view of the matter, inasmuch as it would have been open to the plaintiffs to avail themselves of the proper remedy by way of a civil miscellaneous appeal or a civil revision petition. In fact, the plaintiffs have paid more court fee than what would seem to be necessary and I have therefore treated this second appeal as if it is a civil miscellaneous appeal and have proceeded to give my judgment on that basis. The respondents cannot, in any way, be prejudiced by my adopting this procedure, as, in any event, they have to answer the contentions raised on behalf of the plaintiffs in regard to the genuineness of Ex. B. 11.
5. The only question argued by the learned counsel for the appellants in the second appeal, namely, the plaintiffs in the Suit, is that the finding of the learned District Judge in regard to the genuineness of Ex. B. 11, is vitiated by reason of his having invoked the presumption under Section 90 of the Indian Evidence Act, wrongly and most inappropriately. Ex. B. 11 bears on the face of it the attestation of nine witnesses. Except D. W. 3 an attesting witness, all the attestors are admittedly dead. D. W. 3 has given evidence staling that he saw the testator sign in his presence and that he attested the will in the presence of the testator.
This evidence of D. W. 3 has been accepted by the courts below and there is no reason why this court should reject his evidence. But the learned counsel for the appellants submitted that the evidence of D. W. 3, even if accepted, was not sufficient proof of the mental capacity of the testator, and due execution could never be proved without positive proof that the testator was in a sound disposing state of mind at the time when he set his hand to the will.
It is true that the evidence of D. W. 3 is ominously silent in regard to the mental fitness of the testator when he signed the will. No question was put to D. W. 3 in the examination in chief as regards this aspect of the matter but in cross-examination he deposed thus:
'He was confined to his house for 4 or 5 months before his death. He was walking about in the house until his death'.
If this evidence is accepted, it is certainly sufficient to prove that the testator had the necessary testamentary capacity. But it is not necessary to spell out so much from the evidence of D. W. 3 in order to sustain the will.
Both the courts below have relied upon the presumption arising under Section 90 of the Indian Evidence Act as Ex. B. 11 is a document 30 years old. If bears the date 17-6-1920. The suit itself was instituted only in the year 1954. The necessary requisite of the lapse of 30 years to attract Section 90 of the Evidence Act is therefore satisfied. In this connection reference may be made to the decision of the Judicial Committee in Munnalal v. Mt. Kashibai AIR 1947 PC 15. At page 16 the Judicial Committee observed thus:
'The will of Bahadur was more than 30 years old and was produced from proper custody, and both the lower courts rightly held that the actual execution and attestation of the will could be presumed under Section 90; they differ on the question whether the presumption extended to the testamentary capacity of the testator. A party setting up a will is required to prove that the testator was of sound disposing mind when he made his will, but, in the absence of any evidence as to the state of the testator's mind, proof that he had executed a will rational in character in the presence of witnesses must lead to a presumption that he was of sound mind, and understood what he was about. This presumption can be justified under the express provisions of Section 90, since a will cannot be said to be 'duly' executed by a person who was not competent to execute it and the presumption can be fortified under the more general provisions of Section 114, since ft is likely that a man who performs a solemn and rational act in the presence of witnesses is sane and understands what he is about. There was no evidence whatever that Bahadur was not in a perfectly normal state'.
6. Even prior to the decision of the Judicial Committee this Court held in S. Kotayya v. Vardhamma, : AIR1930Mad744 , as follows :
'The words 'duly attested' in Section 90 of the Evidence Act justify not merely the presumption of' execution and attestation but also a presumption in favour of the disposing power of the testator'.
It is therefore clear that if the presumption under Section 90 of the Indian Evidence Act can be made available to the facts and circumstances of this case, no further proof of the mental capacity of the testator in Ex. B. 11 is necessary. The learned counsel for the appellants strongly contended that it would be dangerous in the present case to invoke safety the presumption under Section 90 of the Evidence Act. The court is not compelled to draw a presumption of due execution merely because the document which appears to be more than 30 years old happens to be produced from proper custody.
The language used in the section is 'may presume' and it is needless to say that the court has got a judicial discretion to be exercised in drawing the presumption. But the court cannot arbitrarily say that it will not draw the presumption merely because the matter is one for the exercise of its discretion. The real scope of Section 90 seems to be that in the normal circumstances, where it is found that the document in question emanates from an apparently lawful custody and where the document is such that it is likely to have been executed having regard to the common course of human conduct, and where there are no circumstances to excite the suspicion of the court, such as unnaturalness and artificiality surrounding the transaction or an apparent interlineation or correction or tampering with the document, the court will draw the presumption.
I am aware of the dictum of Farran, C. J. in Shaik Husain v. Govardhandas, I.L.R. 20 Bom 1 , to the effect that it would be dangerous for the courts to draw the presumption of due execution mechanically on the sight of the document purporting to be 30 years old and coming from proper custody. Inasmuch as the presumption dispenses with proof of due execution in cases of treatment where the onus of proof is heavy on the propounders of the will, the court must act with extreme caution and the utmost circumspection.
But I am satisfied that in the present case the courts below acted rightly in relying upon the presumption under Section 90 of the Evidence Act. As pointed out by Mr. Natesan, the learned counsel for the respondents, the will is perfectly natural and bears the attestation of respectable witnesses. One of them was an advocate who was practising at Tiruvallur. His brother has given evidence as D. W. 4 in the case deposing that the attesting signature in the will is that of his lawyer brother.
The degree of proof sufficient to establish a will is not what is required to satisfy the mind of every sceptic but what would appease the conscience of the court. It is hardly likely that nine persons would conspire together and bring about a forged will at the time when the testator was not in a conscious state of mind merely to help his widow, No circumstances have been elicited in the course of the evidence at the trial as to how there could have been a conjoint fraud on the part of the several attesting witnesses who are now proved to have attested the will.
Regarding the custody of Ex. B. 11, it cannot be said that it is not a proper custody, if it emanated from the first defendant. The question is not whether the first defendant is a truthful person but the question is whether it is likely or probable that he would have had the custody of the will. The fact that he produced Ex. B. 1 also another will purported to have been executed by Ammayee Am-mal, which has been found against by both the courts below, is not a circumstance which would, in any way, vitiate the propriety of the custody in regard to Ex. B. 11.
I need only add that I see no reason to differ from the appreciation of the oral testimony of the evidence on record in regard to the due execution of Ex. B. 11, invoking the presumption under Section 96 of the Evidence Act. I, therefore, uphold the finding of the learned District Judge that Ex. B. 11 is a genuine and valid testament of Namasivaya Chetti.
7. I have equally no hesitation in upholding the finding of the courts below that Ex. B. 1, the alleged will of Ammayyee, found to have been brought about at the instance of the first defendant is a hopelessly fabricated document. Mr. Natesan, the learned counsel for the respondents, was not able to attack that finding successfully. I therefore confirm the finding of the courts below that Ex. B. 1 is not a true document. It follows that the second appeal No. 317 of 1958 fails and it is hereby dismissed.
8. C.M.A. No. 80 of 1958: The C.M.A. has been preferred by defendants 1 to 3, 5, 7, 11, 14, 15 and 17. The first defendant is the person who was putting forward his title under the will of Ammayee and the other defendants are the alienees of portions of the properties from Ammayee or from the first defendant. This C.M.A. is mainly directed against the propriety of the order of the learned District Judge granting an amendment of the plaint, permitting the plaintiffs to set up an alternative root of title to the suit properties.
For the reasons adduced by the learned District Judge I am of opinion that the learned District Judge acted rightly in granting the amendment as prayed for. It cannot be said that the case set up by the plaintiffs under the amendment was such a new case as would completely alter the structure and frame of the suit and warrant the disallowance I of the amendment. It is permissible for the plaintiffs to set up as many roots of title as possible and sometimes they may even be mutually conflicting and inconsistent
I therefore hold that there are no grounds for interfering with the direction of the learned District Judge granting an amendment of the plaint. The only other question that remains to be dealt with is as regards the necessity for a direction given by the learned District Judge to go into the question of the validity of the alienations regarding E and F schedule properties. It is common ground that these properties were alienated by Ammayee herself during her lifetime.
If as a result of the finding in regard to the two wills it has to be held that Ammayee became the absolute owner of the properties, the plaintiffs have no locus standi to impugn the validity of those alienations, I do not see that any useful purpose will be served in embarking upon a fresh enquiry as regards the validity of these alienations, in view of the findings, relating to the wills, having been upheld by this court. It follows that the suit in respect of the properties in E and F schedules will stand dismissed.
I am also of the opinion that the trial court need not go into the question as to whether the suit properties really represent the acquisitions made by Ammayee from and out of her husband's estate or whether she acquired these properties from and out of her own funds, as in any event, Ammayee's title to the properties has now been upheld.
If Ammayee got the properties as the absolute bequest from her husband Namasivaya, nothing further need he said about the nature of the suit properties as to whether they emanated from the estate of Namasivaya or not. Subject to these observations, the other directions given by the learned District Judge will stand. The order of remand is, therefore, modified to the extent mentioned above. In other respects, the civil miscellaneous appeal is dismissed. There will be no order as to costs either in the second appeal or in the civil miscellaneous appeal.