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Kalkantharam Rukmani Ammal Vs. Ka Ki Anakma Naidu and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in96Ind.Cas.26
AppellantKalkantharam Rukmani Ammal
RespondentKa Ki Anakma Naidu and ors.
Cases ReferredMina Kumari Bibi v. Bijoy Singh Dudhuria
evidence act (i of 1872), section 114 - document, execution, of--presumption as 1,0 date--burden of proof--hindu law--religious ceremonies--knowledge of mantrams, whether necessary--estoppel--mortgage, sail, on--mortgagee, right to dispute interest conveyed--parties claiming title paramount, addition of, whether permissible. - .....february. in dealing with this question, there is one fact to be borne in mind, namely, that the testator executed more than one will and according to one witness he was a man with a passion for making and destroying wills. he wrote several wills and changed his mind very often. admittedly in this case, three wills were brought into existence and there are two wills which p.w. no. 2 says he attested. there is another will, ex. viii, which nobody attested, but which seems to have been signed by the testator. so that in estimating the evidence of p.w. no. 2 who was examined on 12th february, 1923 about 20 years after the date of the will in question, one has to be careful in saying whether his evidence, if accepted, shows beyond doubt that the will was ante-dated. i do not think that i.....

Kumaraswami Sastri, J.

1. The 3rd defendant is the appellant. One Venkatasubbayya died on 6th April, 1904. He became a sanyasi' on 2nd February, 1904, and it is alleged in the plaint that he left a Will, dated 2nd February, 1904 making certain dispositions of his property. The plaintiff claimed under a mortgage-deed dated 14th April, 1910, executed by defendants Nos. 1 and 2 and the 3rd defendant's deceased husband. The 1st defendant was the sister's son of the testator and he also married the predeceased son's daughter of the testator. The 2nd defendant married the brother's daughter of the testator. The 3rd defendant's husband is dead. The main pleas of the defendants in their written statements to be considered at present are that Venkatasubbayya became a sanyasi on 2nd February, 1901, that the Will referred to in the plaint was executed after he became a sanyasi, the exact date not being known, between the 9th and 12th of March and that it was ante-dated to 2nd February. Other contentions were raised which it is unnecessary to consider for the purpose of this appeal. The Will was registered on 17th March, and so far as it appears from the evidence there was no dispute raised as regards this Will till we come to the present suit. The plaintiff filed the suit on 4th April, 1922, so that we have to decide the question as to the exact date of Ex. B, the Will, twenty years after its execution and registration. The District Judge was of opinion that, although Venkatasubbayya became a sanyasi, he was not a true sanyasi under the Hindu Law having renounced the world and gone through the necessary ceremonies and that he did not divest himself of all the properties as required, but continued to deal with them and that his professed sanyasam, would not prevent his willing away the properties, even though the Will was executed after he became a sanyasi. In this view, he is of opinion whether the Will was executed on the 2nd February or subsequently, it will not make much difference, even though he was inclined to the view that the Will was executed subsequent to his becoming a sanyasi.

2. The first question that arises in this case is what was the date of the Will, whether it was executed on the 2nd or whether it was executed subsequently and ante dated? In cases where a document has been executed and registered and the question arises as to its date there can be little doubt that the presumption is that the document was executed on the date it bears. If any authority were needed for this proposition, I may refer to the decision of their Lordships of the Privy Council in Mina Kumari Bibi v. Bijoy Singh Dudhuria 21 C.W.N. 585 : 15 A.L.J. 382 : 2 44 I.A. 72. (P.C.) The onus, therefore, is on the 3rd defendant who is the contesting defendant to show that although the document was executed BO long ago as 1904 and bears the date 2nd February it was executed subsequently. In all such cases lapse of time does strengthen the onus cast. Venkatasubbayya is dead. His widow is dead and so far as the evidence goes, we have to rely mainly on the evidence of P.W. No. 2 who was the only attesting witness to the Will who has been examined. D. W. No. 3 has, no doubt, been referred to by Mr. Krishnaswami Iyengar. But he is the agent of the 3rd defendant conducting the litigation on her behalf and it is not safe to rely upon his evidence specially when he does not say that he was present at the execution. So far as the evidence of P.W. No. 2 is concerned, he was called by the plaintiff for proving attestation to the mortgage sued on. In his cross-examination, Exs. I and II, (letters) were given to him and from these letters he says he infers that the Will was executed subsequent to. these. letters. Reference is made by Mr. Krishnaswami Aiyangar to Ex, VII as strongly probabilising the non-existence of any Will on the 2nd February. In dealing with this question, there is one fact to be borne in mind, namely, that the testator executed more than one Will and according to one witness he was a man with a passion for making and destroying Wills. He wrote several Wills and changed his mind very often. Admittedly in this case, three Wills were brought into existence and there are two Wills which P.W. No. 2 says he attested. There is another Will, Ex. VIII, which nobody attested, but which seems to have been signed by the testator. So that in estimating the evidence of P.W. No. 2 who was examined on 12th February, 1923 about 20 years after the date of the Will in question, one has to be careful in saying whether his evidence, if accepted, shows beyond doubt that the Will was ante-dated. I do not think that I can on his evidence hold that the Will was ante-dated. Exhibits I and II could not in terms be attributed to this Will, lie admits that even as regards this Will he was not present when it was executed but that it was sent to him later on, space being left for his signature, so that it is not possible to say with certainty when the Will was executed. As regards, Ex. VII, the statement in it is that Venkatasubbayya was unable to execute a Will. So far as Ex. VII is concerned, it seems to me to be fairly clear that the recital therein that his last hours had come and that he was notable to leave a Will because the last hours had arrived is false Exhibit VII is dated 6th February, 1904 He died on 6th April, 1904, two months after the date Ex. VII bears. If he was able to have a document like Ex. VII written, there is no reason why he could not have left a Will in terms of Ex. B. The clauses in Ex. VII are peculiar. He refers to a contemplated charity and contemplated gifts all of which appear in Ex. B. He gives the property absolutely to his wife subject to the charity. It is doubtful whether even that charity, under the terms of Ex VII was to continue after her death, because he permits his wife to will away the properties aS she pleased. As regards the recitals in Ex, VII, there is no evidence to show that he was on the point of death at the time of Ex. VII. It seems to me that Ex. VII was brought into existence for some ulterior purpose. What that purpose is, it is difficult, in the absence of evidence, to determine. But the circumstances which the testator recites do not, in my view, represent the true state of affairs. He was not dying and he was certainly on that date, if the evidence is true, capable of leaving a Will because on the 2nd of February he underwent a ceremony, lasting about six hours of sanyasam. He was living in a hut near the house being fed daily and no witness says that he was on the point of death or was unable to attend to his affairs, 1 am not, therefore, prepared to hold that Ex VII evidences the truth of the defendant s case that no Will was executed before that date I have gone through the evidence carefully' I think it is difficult on that evidence to hold-that the document, Ex. B, purporting to be executed on the 2nd February, 1904 can be held to be a document which was executed in March and. ante-dated for any ulterior purpose. It is not clear to me why there should be such ante-dating. If the evidence that he was performing yoga and was a religions man is true, the probability is that, before he took sanyasam he would have left a W all disposing of his properties rather than that he would not have disposed of his properties, while knowing that the obligation of a sanyasi was to divest himself of his property before he took sanyasam and that he would have subsequently executed a Will and ante-dated it. There is no motive for ante-dating as the deceased thought that on the 6th February and the 17th March he could, though a sanyasi, execute a document and register another. He could not have known that the law invalidated documents or acts relating to property by a Hindu sanyasi. There is nothing to show that on the 2nd February he was not in a position to make a Will in terms of Ex. B. I am, therefore, of opinion that on the evidence it cannot be held that Ex. B was ante-dated.

3. I think it is unnecessary to consider the question whether Venkatasubbayya was a sanyasi in the strict sense of the term under the Hindu Law having undergone all the ceremonies and consequently civilly dead and unable to dispose of the property. If knowledge of the mantrams and the understanding of the ceremonies are essential, very few ceremonies now performed by Hindus could be upheld. I do not agree with the District Judge that knowledge of any man-tram is necessary, repetition being sufficient in these days. All you have to see is whether a parson performs his ceremony repeating the mantras. Where a ceremony is admittedly performed, the presumption is that it was performed in accordance with the Sastras.

4. Then the next question is whether the decree as passed by the learned Judge is correct. The plaintiff admits and bases the title of the mortgagors on the Will, Ex. B. The mortgagors under Ex. B are three out of the eight persons who are entitled to the properties bequeathed. The decree as it stands is a decree against the entire property irrespective of any shares of the mortgagors. I do not think that such a decree, can be passed. The decree ought to be limited to the interest of the mortgagors in the property under the Will. What that interest is, it is unnecessary to determine in this case. It is clear that in a suit on a mortgage, the mortgagors are estopped from disputing that they have not got the interest which they said they had and which the mortgagees bargained for. But it is open to third parties to state and prove what that interest is. It is open to third parties to say that the mortgagors have no interests or lesser interests than those prescribed for in the mortgage. The position of the 3rd defendant in this case is peculiar. She is a daughter of the testator and she is also the widow of one of the executants of the; mortgage. She could not as legal representative of the mortgagor set up any title adverse to the title which the, husband prescribed for. But in her own right as daughter, it is open to her to set up, any title which she may have, but that is not possible in a mortgage suit where she is the legal representative of one of the mortgagors. It has been decided by their Lordships of the Privy Council that you ought not in a mortgage suit join parties claiming a paramount adverse title. Therefore it is unnecessary to determine what her rights are as daughter of the testator. Though Mr. Krishnaswami Iyengar invites us to discuss this question in view of the fact that according to him one of the legatees under the Will has forfeited his right but in view of the fact that this circumstance is not admitted, we cannot go into the, question.

5. The question as to 3rd defendant's rights as daughter need not be determined in this case as her position is that of the legal representative of a mortgagor and as legal representative she cannot be allowed in this suit to contest the right of her husband who executed the mortgage. The decree will be only as regards the interests of the mortgagors in the property mortgaged without determining what that interest is in these proceedings. The appeal is dismissed.

6. As the main contentions have not been substantiated, the appellant will pay the respondents' costs. Time for redemption six months from this date.

Venkatasubba Rao, J.

7. I entirely agree; and but for the fact that I strongly feel that the defence put forward is unrighteous in the extreme, I should not take the trouble to deliver a separate judgment The defence is strikingly ingenious and has the merits of being original. The suit is brought to enforce a mortgage executed by certain legatees under the Will of Venkatasubbayya who died in April, 1904. The mortgage was executed by defendants Nos. 1 and 2 and the husband of the 3rd defendant In 1910, the mortgage was effected and the present suit was brought in 1922.

8. The principal contesting defendant is the 3rd and her defence is that at the time of the making of the Will her father was a sanyasi. The Will bears the date 2nd February, 1904 and was registered on the 17th of March, 1904, the defence suggests that Venkatasubbayya became a sanyasi on the 2nd of February, and that the Will was not executed on that day previous to his having become a sanyasi, but that, as a matter of fact, it was made sometime between the 9th and the 12 of March, and that it was ante-dated to make it appear that the testator executed it while still a house-holder. It is then contended that, as a sanyasi, Venkatasubbayya would be civil by dead and that his will would be invalid. If this contention succeeds, it would follow that the suit would fail, the mortgagee having acquired not right.

9. The District Judge has dealt with two questions:

1. Was the Will ante-dated? and

2. Did Venkatasubbayya become a sanyasi in the strict sense of that term?

10. He has devoted a large portion of his judgment to a discussion of the second question and has come to the conclusion that the deceased did not become a sanyasi and that he was not, therefore, incompetent to make a Will. In regard to the other question, the learned Judge has not dealt with it quite as fully as he might have done, for in his opinion, on his finding that the testator was not a sanyasi, it was not necessary to consider very fully the plea of the ante-dating of the Will. All the same, he has recorded a finding that the, Will was ante-dated.

11. In the view I take of the case, it is unnecessary to decide whether the deceased did or did not become a sanyasi. But I wish to make one observation. The District Judge is perfectly justified in demanding the strictest proof possible of the fact that the testator did become a sanyasi. The Will is challenged 18 years after its execution. It was duly executed, attested and registered. It was acted on and the mortgagee, a stranger to the family, was led to believe that it was perfectly valid. At this distance of time, the testator's daughter, the 3rd defendant, chooses to deny its validity. This is one aspect of the case. 'Then again, the suggestion made is that Venkatasubbayya became an 'apath sanyasi.' This form of renunciation of the world is clearly not the approved form. Renunciation is considered meritorious, but a man renounces only what he may keep and gives up what he may retain. In the case of an apath sanyasi, the man is face to face with death and he makes a virtue of necessity and gives up earthly things when he cannot help doing so. He expects that he is dying and goes through the form of renouncing the world. This is the sort of sanyasi, which Venkatasubbayya is supposed to have become. That he did wear kashaya and change his' name, there can be no doubt. But when the consequences of holding that the deceased became a sanyasi, are so grave, the District' Judge, in the circumstances, is entitled to demand the most rigorous proof of the fact alleged. Whether the District Judge's conclusion is right or wrong, I need not pause to consider, because I am perfectly satisfied that the Will was not antedated and that his judgment must be supported on that ground.

12. As I have said the District Judge's discussion of the issue, was the Will antedated, has been somewhat scrappy, but after hearing Mr. Krishnaswami Aiyangar for the appellant, I have come to the conclusion that he has hopelessly failed to make out a case. It is said first that Ex. VII which is dated 6th February, 1904, signed by the testator contains a statement that he had not till then made a Will. This does not prove in the least that the deceased did not in fact make a Will. To my mind, this is a most suspicious document. Exhibit VII far from showing that no Will was made, proves the exact contrary. My view of the situation is that the Will had previously been made, that the testator was prevailed upon to make a document on the footing that no Will was made and that to carry out the scheme, Ex. VII, was brought into existence. It will be seen that under this document, almost complete powers are given to the widow and in this respect it is in marked contrast to the Will. As my learned brother has shown there are other recitals in Ex. VII which are clearly untrue, I am not disposed to place any value upon this.

13. Then there is a most significant circumstance which is ignored by the defence. As I have said Ex. VII was made on the 6th February, 1904. On that date, Venkatasubbayya Was not conscious of his disability, he did not think that as a sanyasi, he was incapable of dealing with his property. Exhibit VII was intended according to the defence to be operative. When, then, I ask, did the knowledge dawn upon Venkatasubbayya that a sanyasi was civilly dead and, therefore, could not enter into any secular transaction? It is not suggested that, he had legal advice or received the information from any friend or relation. This circumstance is almost fatal to the defence and shows that the plea put forward, is utterly false.

14. Next, great reliance is placed by the defendant upon two letters, dated the 9th and 12th of March respectively, Exs. I and II, P.W. No. 2 was cross-examined in regard to them and his so-called admissions are relied on. The truth is, he went into the box to prove the mortgage and advantage was taken of that face and these two letters written 19 years previous to his giving evidence were put into his hands and he was asked to explain certain statements in them. He said that Ex. I refers to a Will which was not before the Court and that, Ex. II refers to the Will in question. Exhibit II shows that he signed the Will referred to in it as an attesting witness on or about the date of that letter, namely, 12th of March, 1904. The defence asks, does this not show that the Will relied on by the plaintiff was executed between the 9th and the 12th of March? The answer is clearly not. In Ex.

15. I, certain corrections are suggested and it is said that they ate embodied in the Will before us. But it is forgotten that the witness is himself making inferences after the lapse of several years. The Will had been signed and attested by several before it was sent on to P.W. No. 2. Space was left for him to sign his name as a witness. In that space he signed his name. He was not present at the time of the execution of the Will, nor was he present at the time of the execution of the other Will which is supposed to be referred to in Ex. I. P.W. No. 2 does not speak from direct knowledge. He merely infers that the Will before the Court is that referred to in Ex. II. Granting that Ex. II refers to it, there is nothing to show that the testator executed it between the 9th and. the 12th of March. Finding that Exs. VII, I and II would give her apparent support, the 3rd defendant has not scrupled to put forward a thorough by false and unjust plea. It is not pre tended that if these three documents go out, there is anything like a case worth mentioning. It is remarkable that the 3rd defendant who is an elderly lady aged about M and who must have knowledge of all the facts she alleges has not ventured to go Into the witness-box to support her case.

16. It is also noticeable that defendants Nos. 1 and 2 have kept out of the box although they are the relations of the testator and the 3rd defendant and presumably are aware of the true state of things. The theory of ante-dating has been resorted to by the 3rd defendant in her desperate attempt to get rid of a just claim.

17. In regard to the form of the decree, I agree with what has fallen from my learned brother. I do not think that the plaintiff has asked for more than what we are going to give him by our judgment. The first two defendants have been impleaded because they are mortgagors and the 3rd defendant because she is the widow and heir of the deceased mortgagor Rangiah. The mortgage decree can affect only the interests of the mortgagors and in so far as the 3rd defendant represents Rangiah, she can have no answer. Any paramount right of the 3rd defendant, granting she has one, is not affected by the mortgage decree. I, therefore, agree that the decree shall be modified in the way suggested by my learned brother.

18. The appeal otherwise stands dismissed with costs.

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