P. Venugopal, J.
1. A.S. No. 235 of 1978 is the appeal filed by the first defendant and A.S. No. 354 of 1978 is the appeal filed by the second defendant. The plaintiff is the respondent in both the appeals. Since both the appeals arise out of the same judgment, they are consolidated for the purpose of convenience and disposed of by a common judgment.
2. The suit properties originally belonged to one Chinnathu Padayachi. His wife is Visalakshi. He had a son by name Ranganathan and the first defendant is the wife of the said Ranganathan, Chinnathu Padayachi has two daughters, the second defendant, the mother of the plaintiff. The plaintiff's case is that after the death of Chinnathu Padayachi, his widow was entitled to a half share belonging to her husband and after the death of his son Ranganathan, Visalakshi became entitled to 3/4th share in the suit properties and by virtue of a Will Ex.A-3 executed by her, she bequeathed her 3/4th interest in the suit properties in favour of the plaintiff and the suit has been filed for partition and separate possession of plaintiff's 3/4th share in the suit properties, future mesne profits and costs.
3. The main defence of the first defendant is that suit items 30 to 33 belong to her having been purchased by her under the various sale deeds Exs.P.l, P. 13 and P. 14 and they should be excluded from the suits'. The main defence of the second defendant is that the Will Ex.A-3 executed by the testatrix Visalakshi was not executed by her while in sound and disposing state of mind and the Will is not a genuine one or a voluntary act of the testatrix Visalakshi and she was old and ailing and the said Will was brought about by undue influence as she had no independent advice or an opportunity to consult others and the Will is not therefore valid. The other alternative contention is that even if the Will is true and valid, it will not cover the properties at Chatram or Avianoor and the plaintiff is not therefore entitled to any relief in respect of suit items 34 to 41. The trial Court rejected the contentions of both the defendants and accepting the case of the plaintiff in toto, decreed the suit with costs for partition and separate possession of 3/4th share of the plaintiff in plaint B schedule properties and in the items found available under issue 9. Against the decree and judgment of the trial Court, both the defendants have filed the present two appeals.
4. Taking up the appeal A.S. No. 354 of 1978 filed by the second defendant, the learned Counsel for the appellant relying on the decision reported in T.V.S. Rao v. T. Kamakshiarnmal : AIR1978Ori145 , contended that unless both the two attesting witnesses are examined in court in proof of due attestation of the Will Ex.A-3, the Will cannot be said to have been authenticated in accordance with the statutory requirements of Section 63(c) of the Indian Succession Act. From the decision relied on by the learned Counsel for the appellant the statutory requirements to be proved under Section 63(c) of the Indian Succession Act for the due attestation of the Will are (1) each of the attesting witnesses should have seen the testator signing the Will or must have received from the testator a personal acknowledgment of his signature; (2) each of the witnesses should have signed the Will in the presence of the testator and (3) if only one attesting witness is examined, there must be evidence to show that the other attesting witness was also present at the time when the executant signed the document or received from the executant a personal acknowledgment of his signature or mark. Valid attestation of the Will can be said to have been proved not necessarily by calling both the attestors but even by examining one attestor provided his evidence shows that the other attesting witness was also present at the time when the executant signed the document or put his mark. The learned Counsel for the appellant contended that the evidence of P.W. 5, the attestor, does not show that the other Kalivaradan was also present when the testatrix put her mark in Ex.A-3. The evidence of P.W. 5 in its entirety, without taking a few stray sentences in isolation, establishes beyond doubt the presence of the other attestor Kalivaradan and he too attested the Will after the testatrix affixed her thumb impression in Ex.A-3. The contention that due attestation of the Will has not been proved as required under Section 68(c) of the Indian Succession Act, cannot be accepted.
5. Relying on the decision of the Supreme Court reported in Jaswant Kaur v. Amrit Kaur : 1SCR925 , and the decision of the Calcutta High Court in Billeswar Kumar v. Nirupama Debi : AIR1973Cal460 , the learned Counsel for the appellant contended that under Ex.A-3, there is an unjust and unfair disposition of the property by the testatrix inasmuch as the second defendant, the other daughter of the testatrix has been deprived of her due share in her mother's property and this is unjust and unfair disposition and it raises a suspicion about the execution of the Will Ex.A-3 and it is the duty of the propounder of the Will to remove the legitimate suspicion and satisfy the judicial concience of the Court before Ex.A-3 could be accepted as a last Will of the testatrix. The son of the testatrix who is the husband of the first defendant was suffering from cancer and was undergoing treatment in Hospitals at Madras, Vellore, Pondicherry and Neiveli. From the evid-treatment in Hospitals at Madras, Vellore, Pondicherry and Neiveli. From the evidence, it is seen that he died after a prolonged illness and after treatment in various hospitals. D.W., admitted in her evidence that a sum of Rs. 25,000/-was spent for the treatment of her husband by the plaintiff's father. Her evidence shows that only the father and mother of the plaintiff were helping the testatrix during the time of illness of her son. Even for the funeral expenses and obsequies, monies were spent only by the plaintiff's father. The plaintiff's . mother is the elder daughter of the testatrix and the second defendant is her younger daughter. The two daughters have married brothers and the evidence shows that there was litigation going on between the two brothers and they are not on talking terms. That explains, why the second daughter and the second son-in-law did not help the testatrix when her son was suffering from serious illness and the first son-in-law and the daughter were rendering all help. After the death of her son, the testatrix has chosen to live only with the elder daughter and not with the younger daughter, though they are living in the same street. Apparently, this may have something to do with the general disposition and temperament of the younger daughter. The trial Judge, in para 9 of the judgment has observed 'when the 2nd defendant was examined as D.W. 4, she displayed the temperament in the witness box which convinced me that she is a quarrelsome type of lady. In fact, when the learned Counsel for the plaintiff started putting questions to her in cross-examination, she started fighting the advocate. The temperament displayed by the defendant in the witness stand shows clearly that she is a loud mouthed woman'. Learned Counsel for the appellant contended that the answers given by the second defendant both during chief examination and cross-examination did not warrant or justify the remarks and observation as made by the learned trial Judge. It is no doubt true that in the deposition of the second defendant there are no remarks about the demeanour or behaviour of the second defendant while giving evidence in the witness box. Such remarks or observations are generally made in the deposition of witnesses in Criminal trial and not in the trial of civil cases. The learned trial Judge having observed the demeanour and temperament of the second defendant when giving evidence in the witness box, is certainly competent to make those observations and remarks contained in paragraph 9 of the judgment and they cannot be lightly brushed aside. The evidence shows that there is lack of cordiality between the second defendant and her elder sister. From the suggestion made to the second defendant during cross-examination it is obvious that she used to quarrel with her mother, the testatrix. Viewed against the background of these facts, there is nothing unnatural for the testatrix to show preference to her first daughter and make a disposition of her properties in favour of her first daughter. The fact that the first son-in-law stood by her at the time of great crisis when her only son was suffering from cancer, undergoing treatment in various hospitals at different places and spent substantial amount, must have touched the chord of human piety and gratitude in the mind of the old lady and that must have prompted her to show some preference to the first daughter in the matter of disposition of her properties. There is nothing unnatural or improper in the disposition made by the testatrix. The learned Counsel for the appellant contended that in the plaint there is absolutely no mention about the preference of the testatrix to her first daughter. The plaint was originally filed only against the first defendant and the second defendant later on got herself impleaded by filing a separate petition. That explains why no mention was made in the plaint about the preference which the testatrix had for her first daughter. That apart disposition to the first daughter born out of natural love and affection cannot be characterised as a suspicious circumstance by which there is a partial disinheritance of the second daughter with regard to the properties of the testatrix. It is not correct to state that the second defendant has been completely disinherited of the property of her mother. That takes us to the question as to what are the properties that are the subject matter of the Will Ex.A-3. The testatrix has properties in four villages, Paithampadi, Chatram, Adianoor and Perangiyur. Ex.A-3 does not give the description of the property or the survey number of the property dealt with under it. It merely mentions that the properties in the two villages, Paithampadi and Parangiyur, the values of which cannot be stated with certainty, are the subject matter of the Will. The learned Counsel for the respondents relying on the evidence of P.W. 4, Village Karnam contended that there is no revenue village called Chathiram and it is merely a bamlet forming part of the Revenue Village Paithampadi and when Ex.A-3 mentions Paithampadi lands, it includes the lands situated in Chathiram which are plaint items 34 to 38. Whether there is a Revenue Village called Chathiram and whether it is merely a hamlet forming part of the Village Paithampadi are not relevant for consideration. The question is whether the testatrix had considered these properties as being situated in two different hamlets, whether the identity of these two villages were maintained while referring to the properties situated in those two villages. The evidence of P.W.I as well as the description of properties given in the plaint clearly show that the plaintiff himself identified these properties by numbering them as separate entities lying in different villages by referring them to Paithampadi lands, Chathiram lands etc. The properties situated at Chathiram, namely, plaint items 34 to 38, cannot be taken to be the subject-matter of bequest under Ex.A-3. Similarly, the properties situated at the village Avianur, namely,' plaint items 39 to 41 also cannot be treated as the subject matter of the bequest under Ex.A-3. Viewed in this light, it cannot be stated that the second defendant was totally disinherited from the properties of her mother and Ex.A-3 is an unjust and unfair disposition of the properties by the testatrix.
6. The learned Counsel for the appellant next contended that the testatrix was aged more than 70 and she was suffering from frequent illness like giddiness, stomach pain etc., and she was not in a sound disposing state of mind when she executed the Will Ex.A-3. The learned Counsel further contended that notwithstanding the registration of the Will, the burden is on the propounder of the Will to prove the testementary capacity of the testatrix since the mere registration of the Will cannot dispel the doubts about the genuineness of the Will. The evidence of the second defendant is that her mother, the testatrix was suffering from giddiness indigestion and diarrhoea and was bedridden. The evidence adduced regarding the illness of the testatrix is general in nature. There is no clear evidence as to what was the state of health of the testatrix at that time when she executed Ex.A-3. The illness alleged is of general nature and could not have affected the mental faculty or the sense of understanding of the testatrix. The evidence of P. Ws. 1, 4 and 5 shows that on the same date when the testatrix executed Ex.A-3, she went to the Sub Registrar's Office, presented the Will for registration and answered all the querries put by the Sub Registrar. The evidence further shows that after the Will was registered, it was received back by the testatrix in person. Thus, it can be seen that on the date of Ex.A-3, the testatrix was in a sound disposing state of mind and the illness alleged could not have impaired her mental faculty or understanding. The learned Counsel for' the appellant next contended that the propounder of the Will was taking a leading part since the Will Ex.A-3 was written in his house and he has gone and fetched the attesting witnesses and he has also accompanied the testatrix to the Sub Registrar's Office for registering the Will. From the evidence, it is seen that after the death of her son, the testatrix came to reside in the house of the plaintiff. As the testatrix was residing in the house of the plaintiff, it is but natural that Ex.A-3 came to be executed by her in the house of the plaintiff. With regard to the plaintiff fetching the attestors to the Will, the evidence of both P.W.I as well as P.W. 4 shows that the testatrix called P.W. 4 and informed him about the execution of the Will in the morning as he went for bath and as there was delay, P.W.I was sent to fetch P.W. 4. Thus, it can be seen that the plaintiff went to fetch the attesting witness P.W. 4 only at the request of the testatrix. No adverse inference can be drawn from the fact that the plaintiff accompanied the testatrix to the Sub Registrar's Office along with others. The contention that the propounder himself was taking a leading part in the making of the Will and it throws doubt about the execution of the Will, cannot be accepted. The fact that Ex.A-3 does not contain the description of the properties bequeathed under it and the fact that no draft was made before Ex.A-3 came to be executed and the further fact that the testatrix was unable to give the value of the properties bequeathed under the Will, are not such circumstances as to throw a very serious doubt or Suspicion about the genuiness and execution of the Will Ex.A-3. After a careful review of the evidence on record, I am satisfied that the finding of the trial Court that Ex.A-3 is true and genuine and has been validly executed by the testatrix, has to be upheld.
7. Taking up the appeal filed by the first defendant, A.S. No. 235 of 1978, the learned Counsel for the appellant relied on three decisions reported in Nagayasami Naidu and Ors. v. Kochadai Naidu and Ors. : AIR1969Mad329 , Puttusami Padayachi v. Mullaiammal and Ors. (1976)21 M.L.J. 225, and Ranganayaki Ammal and Ors. v. S.R. Srinivasan and Ors. : (1978)1MLJ56 , and contended that plaint items 29 to 33 were purchased by the first defendant in her name and the fact that a female member in a joint family has purchased in her name, would not necessarily lead to the conclusion that the origin of such property should be traced to the joint family or to the income of the joint family and unless a strong link or nexus is established between the available surplus income from the joint family properties and the properties purchased by the first defendant, namely plaint items 29 to 33, they have to be excluded from the suit. In the decision reported in Ranganayaki Ammal and Ors. v. S.R. Srinivasan and Ors. : (1978)1MLJ56 , this Court has pointed out that it is not for the female member to prove how she acquired the property and it is for the person who comes to Court to establish that the property standing in the name of the female members are not their own and unless there is definite clinching proof to the contrary adduced by the challenging member and unless it is established that the surplus income from the joint family property constituted the source for the purchase of the property in the name of the female member, it cannot be claimed as joint family property. In the instant case, the evidence of P.W. 1 regarding the income of the property is too vague and cannot be accepted. There is absolutely no evidence to show that the surplus income from the joint family property constituted the source for the purchase of plaint items 29 to 33 by the first defendant. The evidence shows that the father of the 1st defendant is a man of substantial means and he has also bequeathed certain properties in favour of the first defendant under Ex.B-15. As the plaintiff has failed to prove that the surplus income from the joint family properties constituted the source for the purchase of plaint items 29 to 33 by the first defendant, they have to be excluded from the suit.
8. The result of the findings given above is (1) the plaintiff will be entitled to 3/4th share only in respect of plaint items 1 to 26 and items 42 to 44(2) the first defendant will be entitled to l/4th share in the plaint items 1 to 28 and also plaint items 34 to 44 and (3) the second defendant will be entitled to 3/8th share in respect of plaint items 34 to 41 and both the defendants will be entitled to work out their rights on payment of necessary court fees. Plaint items 29 to 33 are to be excluded from the suit since they belong to the first defendant exclusively. In all other respects the decree and judgment of the trial court is confirmed.
9. In the result, both the appeals are allowed to the extent indicated above. Parties will bear their own costs throughout.