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Valliammal (Died) and ors. Vs. Palaniswamy and ors. - Court Judgment

LegalCrystal Citation
CourtChennai High Court
Decided On
Reported in(1978)1MLJ463
AppellantValliammal (Died) and ors.
RespondentPalaniswamy and ors.
Cases ReferredGopal Das v. Sri Thakurji
- .....alias name as devathal. she signed in certain documents as deivayanai ammal and at any rate in one document as devathal. the document in which she has signed as devathal is exhibit b-36 dated 16th july, 1959. subsequently in several documents marked as exhibits b-20, b-23, b-26, b-29, b-31, b-32, b-34 and b-35 she had signed as deivayanai ammal. the learned counsel for the appellant relied on her consistent signature of deivayanai ammal over a period of several years prior to her m l j-59death, and referred to the statement in the will which, according to him, was a telltale one stating that she used to sign as devathal. he relied also on exhibit a-5 a certificate dated 26th january, 1970 issued by dr. sankunni pallat, l.m.p., pollachi, certifying that she was admitted in his clinic on.....

V. Sethuraman, J.

1. The plaintiff in O.S. No. 47 of 1972 in the Court of the Subordinate Judge of Udumalpet is the appellant. There was one Semalai Gounder, who had two wives. He had two daughters Muthammal and Palani Ammal through his first wife. He had three issues by this second wife viz., two daughters Valliammal, the plaintiff and Ramathal and a son Palani Goundar. On the death of Semalai Gounder, Palani Gounder became entitled to his properties. Palani died in the year 1943. He had no issues and left behind only his widow Deivayanai Ammal alias Devathal. This Devathal fell ill sometime in October, 1969. One Dr. Sankunni practising in Pollachi paid one or two visits to her house to treat her. Subsequently as advised by him she entered his hospital at Pollachi on 24th October, 1969. At that time she appeared to have complained of pain in the abdomen and the chest region. It is not clear whether any test was conducted. But she was discharged on 1st November, 1969, without being cured. She was thereafter taken to the Christian Mission Hospital at Ottanchatram on 1st November, 1969. That seems to be a better equipped hospital and blood test was conducted there. It was found that she was suffering from what is popularly known as 'blood cancer'. It was realised that there was no cure for her ailment, and as desired by her, she was discharged sometime during the day of 3rd of November, 1969. She went back to her village known as Mettupalayam near Pollachi and died at the early hours of the 4th. If she had died intestate, then the properties would have devolved on the plaintiff, who is her husband's sister, solely as the other issues of Semalai Gounder are no more. She was, however, said to have left a will executed on 3rd November, 1969 and registered on the same day before the Sub-Registrar at Ottanchatram. The plaintiff came forward with the present suit claiming that she was the heir of Devathal and that the will was not valid, as she was not in a sound and disposing state of mind. According to the plaintiff the will could not confer any title on the defendants. The defendants are the legatees under the will and they have taken possession of the properties left by Devathal. The main question that arose for consideration in the suit was whether the will dated 3rd November, 1969 was true and valid. The learned Subordinate Judge held that the will was true and valid and therefore, he dismissed the suit. The plaintiff has come forward with the present appeal.

2. The only point that arises for consideration in the present appeal is whether the will alleged to have been left by Devathal is true and valid. At this stage the relationship between Devathal and the plaintiff may be briefly noticed. The plaintiff instituted two cases against the testator. In one case she was the sole plaintiff and in the other her sister Ramathal had also joined her. Both the cases were dismissed. She instituted O.S. No. 121 of 1952 on the file of the Sub-Court, Coimbatore along with Ramathal for appointment of a Receiver for the properties (in the possession of Devathal) making allegations of waste and neglect on her part. In the year 1952 Devathal had only a limited estate and, therefore, as the possible reversioners they came forward with the said suits. The suit was dismissed on 11th September, 1956.The pleadings etc., in the said case were marked as Exhibits B-13 to B-19, and they disclose that the relationship between the testator and the plaintiff was strained.

3. In the will marked as Exhibit B-l dated 3rd November, 1969 it is stated that Devathal was executing the will out of her own free will and in a sound disposing state of mind and without anybody's instigation and that she had brought up defendants 1 and 2 from their childhood, educated them and treated them as her own children. They are the children of her sister. She claimed to have celebrated the first defendant's marriage and stated that defendants 1 and 2 were managing her properties. Items 1 and 2 of the properties set out in the will were to be the absolute properties of defendants 1 and 2. The third defendant was to get a life interest in the third item. After her death, her heirs, if any, were to obtain the properties absolutely. But if she (the third defendant) left no heirs, that property should go to defendants 1 and 2. Devathal had another nephew by name Palaniswami through a different sister, and she directed a sum of Rs. 3,000 being paid by defendants 1 and 2, and she directed also the discharge of the debts contracted by her. Defendants 1 and 2 were to get the moveables and were also to perform the ceremonies after her death. At page 3 of the will it is mentioned that she was suffering from cancer, that she was taking treatment in Christian Mission Hospital at Ottanchatram and that she had no hope that she would live for a long time. According to the will she decided to execute it so as to avoid any litigation. She has signed in all the pages as Devathal.

4. She is known as Deivayanai Ammal with an alias name as Devathal. She signed in certain documents as Deivayanai Ammal and at any rate in one document as Devathal. The document in which she has signed as Devathal is Exhibit B-36 dated 16th July, 1959. Subsequently in several documents marked as Exhibits B-20, B-23, B-26, B-29, B-31, B-32, B-34 and B-35 she had signed as Deivayanai Ammal. The learned Counsel for the appellant relied on her consistent signature of Deivayanai Ammal over a period of several years prior to her M L J-59death, and referred to the statement in the will which, according to him, was a telltale one stating that she used to sign as Devathal. He relied also on Exhibit A-5 a certificate dated 26th January, 1970 issued by Dr. Sankunni Pallat, L.M.P., Pollachi, certifying that she was admitted in his clinic on 24th October, 1969 with high temperature and chest pain and that she was discharged on 1st November, 1969 in a delirium state. According to the learned Counsel she did not recover her consciousness subsequently. He referred to the presence of the first defendant at the time of the so-called execution of the will and his suggestion was that the first defendant must have engineered the execution of the will. He relied also on the evidence let in the case as showing that she was not in a sound and disposing state of mind.

5. Before proceeding further with the examination of the facts, it is necessary to bear in mind the legal principles set out in several decisions of this and other Courts testing the genuineness of a will. The question whether a will had been properly executed is substantially a question of fact. The decided cases could only show the indicia to be borne in mind in finding out whether the will was properly executed or not or, in other words, whether the will was a genuine one or not. The Supreme Court has elaborately examined this question in H. Venkatachala Iyengar v. B.N. Thimmajammal and Ors. : AIR1959SC443 . It was observed in that case that the mode of proving a will did not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act. 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 signature of the testator as required by law would be sufficient to discharge the onus. Where, however, there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court, before the will could be accepted as genuine. If there was any allegation of undue influence, fraud or coercion, then the onus would be on the person making the allegation to prove the same. Even where there were no such pleas but the circumstances gave rise to doubts, the propounder has to satisfy the conscience of the Court. In the aforesaid case of the Supreme Court the circumstances evoking suspicion were set out. The signature of the testator might be shaky and doubtful and the evidence of the propounder's case that the signature in question was the signature of the testator might not remove the doubt created by the appearance of the signature. The condition of the testator's mind might appear to be very feeble and debilitated, and evidence adduced might not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will might appear to be unnatural, improbable or unfair in the light of the relevant circumstances; or the will might otherwise indicate that the said dispositions might not be the result of the testator's free will and mind. In such cases, the Court would naturally expect that all legitimate suspicion should be completely removed before the document was accepted as the last will of the testator. Further, a propounder him-Self might have taken a prominent part in the execution of the will which conferred on him substantial benefits. If this was so, it was liable to be treated as a suspicious circumstance attending the execution of the will and the propounder would be required to remove the doubts by clear and satisfactory evidence. However, where there were suspicious circumstances which the propounder had succeeded in removing, the Court would grant probate, though the will might be unnatural and might cut off wholly or in part near relations. See summary of what was decided in Venkatachala Iyengar's case : AIR1959SC443 and in Rani Purnima Debi and another V. Kumar Khagendra Narayan and another : [1962]3SCR195 .

6. In the present case there is an additional circumstance that the will is a registered will. At page 732 in the above case, the Supreme Court pointed out that the mere fact that the will is registered will not by itself be sufficient to dispel all suspicion regarding it, where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will disposing of his property, and thereafter he admitted its execution and signed it in token thereof, the registration would dispel the doubt as to the genuineness of the will. But if the evidence as to registration showed that it was done in a perfunctory manner or that the registering authority did not satisfy himself about the testator knowing the contents of the will, then the fact that he had registered the will would not be of much value. There are cases in which registered wills have not been acted upon and those cases have been referred to at page 732 in the report of that case. But the fact of registration is prima facie evidence of its execution and the certificate of the registering officer under secticn 60 of the Registration Act is relevant for proving execution. As observed by Privy Council in Mohammed Ihtisham Ali v. Jamna Prasad (1921) 48 I.A. 365 : 15 L.W. 104 : A.I.R. 1922 P.C. 56, registration is a solemn act and if no other evidence is available, the Court can presume that the Registrar performed his duty of satisfying himself that the document presented to him for registration was duly executed by the executant and the executant was duly and properly identified before him. The same view was taken in Gopal Das v. Sri Thakurji , where Sir George Rankin observed that the evidence of due registration is itself some evidence of execution as against the other side.

7. In the present case the will was sought to be proved by examining the Sub-Registrar as D.W. 1 and the attestors as D.Ws. 2, 3 and 4. The Sub-Registrar on that particular day was on casual leave and the head clerk had acted as the Sub-Registrar. Some comment was made about this circumstances; but I am not satisfied that the acting Sub-Registrar was not acquainted with the procedure to be adopted in registering the document. In fact, in his evidence he has stated that he read out the document to the testator, and that he asked her whether it was executed by her to which she replied that she had executed it and wanted it to be registered. He had also examined the witnesses and thereafter registered the document. Going through his evidence, I do not find any circumstance, which would militate against its acceptance.

8. D.W. 2 is Kumaravel. He is not related to the parties. It was he who was responsible for admitting her in the hospital. It was to him that she confided about her proposal to execute the will on the day of her arrival in Ottanchatram when the seriousness of her illness come to be realised. Thereafter the first defendant went to the village as desired by D.W. 2 and the testator, and brought the necessary records. The records were brought on 2nd at about 10 or 11 in the forenoon and when she was asked as to what should be done, she sent for one Kandaswami Gounder of Palani, who is D.W. 3 in the case. The first defendant went to Palani and brought Kandaswami along with D.W. 4. Thereafter a draft was made on the 3rd morning and a fair copy was made in the afternoon and she signed the will in the presence of the attesting witnesses. On the same day, after discharge from the hospital she went to the Sub-Registrar's Office and had the will registered. It is thereafter that she went in the car to her native village where she died at the early hours of the 4th. There is nothing in D.W. 2's evidence also which would suggests any reason for its rejection. Kandaswami who came from Palani, has given evidence as D.W. 3. It is he who got the scribe Palaniswami for the will. He was himself an Honorary Magistrate. The evidence of D.W. 4 shows that Devathal knew that she was executing a will The scribe was not examined as he was dead. The draft is not produced as it was not available.

9. The two doctors in Ottanchatram Hospital have been examined as D.Ws. 6 and 7. Though they have not attested the document, they speak to her being alert and conscious before her discharge though she was weak. They are absolute strangers and it is unlikely that they would depose falsely for the purpose of supporting the defendants in propounding the will It is not necessary for the purpose of this case to discuss the evidence of D.W. 5 who is the first defendant's Even taking that he would be interested in giving evidence in his own favour, the evidence of the other witnesses is overwhelming in support of the defendants' case that Devathal executed the will on 3rd November, 1969 when she was in full possession of her senses. As far as the execution of the will is concerned, there is absolutely nothing to excite the suspicion of the Court so as to call for better or further proof.

10. There is nothing unnatural about Devathal preferring the defendants as objects of her bequest. The plaintiff had dragged her into litigation and naturally it is not likely that there would be love lost between them. There is also the general tendency of a lady preferring her own relations to those of her husband. In addition, in the present case it is shown that defendants 1 and 2 have been living with her, have been brought up by her and have been helping her. It would be unnatural if she did not want to benefit them. The circumstances against the possibility of the plaintiff being benefited under the will are so clear that this is not a case in which the omission to give any benefit to her would assume any significance is considering the genuineness of the will.

11. The learned Counsel for the appellant laid great emphasis on the fact that the lady had been signing as Deivayanai Ammal in several documents for several years preceding her death and that her signature in the will was as Devathal with a statement to justify her signature as Devathal. As pointed out by the learned Subordinate Judge there is at least one document Exhibit B-36, whose genuineness is not in dispute and in which she has signed her name as Devathal. It may be that she was signing her name indifferently sometimes as Deivayanai Ammal and sometimes as Devathal. It is not necessary to speculate why this particular recital that she was usually signing as Devathal was out in the will. Whatever the reason, is when once it is proved that the document was executed by her and that she was in full possession of her senses at the time of the execution, this statement by itself cannot detract from acceptance of the will as a genuine document. Having considered all the facts, there does not appear to be any reason for rejecting the will. The finding of the learned Subordinate Judge on this point is correct and needs no interference. There is no dispute that if the will had to prevail, the plaintiff would be out of Court.

12. The appeal is accordingly dismissed with costs.

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