P. Venugopal, J.
1. Defendants 2 and 3 are the appellants before this Court. The plaintiff has filed the suit in forma pauperis for a declaration and partition of her half share in the plaint schedule properties and for mesne pro-fits. The suit properties belonged to one Rajammal alias Arumugathammal. Arumugathammal's husband is Punnavanam Pillai. The plaintiff is the sister of the said Punnavanam Pillai, and the first defendant is his brother. The second defendant is the sister's daughter of Arumugathammal. The third defendant is the brother's son of the said Arumugathammal. Defendants 4 to 7 and 9 to 12 are the tenants in the suit properties. The plaintiff's case is that after the death of Arumugathammal, defendants 2 and 3, alleging that Arumugathammal, bequeathed the suit properties in their favour forcibly entered into possession of the plaint first and second Schedule properties and have carried away some of the movables mentioned in the plaint third schedule, and the alleged will could not have been executed by Arumugathammal in favour of defendants 2 and 3, and the testatrix Arumugathammal was not in a sound disposing state of mind for more than a month before her death and the alleged will is nothing but a rank fabricated document and defendants 2 and 3 cannot claim any right to any of the suit properties of the deceased Arumugathammal by virtue of that will.
2. The first defendant filed a written statement supporting the contention of the plain-tiff. The first defendant has averred in his written statement that the alleged will is a fabricated document and even though it is alleged to have been executed on 12th November, 1972, it was presented before the Sub-Registrar for registration only on 6th December, 1972, after the death of Arumugathammal, The first defendant has further averred in the written statement that the hands and legs of Arumugathammal were in a swollen condition and she could not hold pen or pencil in her hands even two months before her death, and her condition became worse one month prior to her death and as she was not in a sound and disposing state of mind for more than a month before her death, the will, alleged by defendants 2 and 3, is a fabricated document.
3. The second defendant filed a written statement contending that she was brought up by the deceased Arumugathammal even from her childhood and the will was executed by the deceased Arumugathammal while she was in a sound and disposing state of mind and the will was duly presented for registration after the death of the deceased and it was registered after a full-fledged enquiry and there was no forcible entry into the second schedule property or removal of the movables as alleged in the plaint, by her or by the third defendant.
4. The third defendant filed a written statement contending that the will is a true and genuine document, executed by the deceased in a sound and disposing state of mind be-queathing the properties in favour of the defendants 2 and 3 and the will has been registered after proper enquiry and it has become final and the plaintiff and the first defendant are bound by the same. The third defendant has also denied the forcible entry into the plaint second schedule property and the removal of movables mentioned in the plaint third schedule.
5. The 5th defendant has filed a written statement alleging that he was occupying the suit property bearing door No. 32 in Melapalayam Vadakku Ratha Street, Ambasamudram and he had handed over possession of the same to the third defendant and hence he is an unnecessary party to the suit.
6. The main issue considered by the trial Court was whether the alleged will set up by defendants 2 and 3 is true, valid and binding on the plaintiff and the first defendant. The trial Court came to the conclusion that the will (Exhibit B-2) is not a true document, executed by the deceased Arumugathammal, bequeathing her properties in favour of defendants 2 and 3 by relying on the following circumstances:
(1) D.Ws. 1 to 5, the attestors to Exhibit B-2 are neither neighbours nor close acquaintances of Arumugathammal, the testatrix. On the other hand, they are interested in the third defendant. One Subramania Pillai who was the immediate neighbour of Arumugathammal and who always helped in writing letters for Arumugathammal has not attested Exhibit B-2.
(2) Excepting the bequeathing of one house in favour of the second-defendant, the deceased has bequeathed the rest of the properties including cash and jewels in favour of the third defendant. She has not even made any provision in the will for her mother who had none to look after her which is unnatural, improbable and unfair disposition of proper-ties throwing suspicion on the genuineness of the document.
(3) Though Exhibit B-2 was executed on 12th November, 1972, it was presented for registration before the Sub-Registrar only after the death of the testatrix Arumugathammal. The non-registration of the will during the lifetime of the testatrix and the presentation of the will for registration immediately after her death, is another circumstance throwing considerable doubt as to the truth and genuineness of the will.
(4) Exhibit A-10 is the postal acknowledgment sent by Arumugathammal for the receipt of a notice sent by an advocate of Ambasamudram on behalf of his client. This acknowledgment was signed by Arumugathammal on 18th September, 1972, just two months prior to her death. The signature of Arumugathammal in Exhibit A-10 shows that she was not in a position to put her signature freely and clearly as she was doing before. Comparing the signature of Arumugathammal in Exhibit A-10 with that of Exhibit B-2, the trial Court came to the conclusion that Arumugathammal could not have signed in Exhibit B-2 in November, 1972 when she was extremely weak and was finding it difficult even to speak. Further, the signatures of the testatrix in Exhibit B-2 has not been made immediately below the writings of the will in all the four sheets. In the first sheet about half an inch of space is left between the writing of the will and the signature of the testatrix and in the second sheet, 3|4 inch is left between the writing and signature of Arumugathammal and in the third sheet the space has increased to nearly one inch and in the fourth sheet it was increased further. This clearly shows that Exhibit B-2 could not have been signed by the testatrix after writing the contents in Exhibit B-2.
7. The trial Court held that the first defendant and the plaintiff living in the house of Arumugathammal after the 10th day ceremony is not a circumstances to establish that they were fully aware that the suit properties have been bequeathed by Arumugathammal in favour of defendants 2 and 3. The trial Court has further held that the fact that the third defendant paid the estate duty levied on the estate of Arumugathammal, is not a circumstance to be construed against the plaintiff. On the basis of these findings the trial Court held that Exhibit B-2 the will executed by Arumugathammal, in favour of defendants 2 and 3 is not a true and genuine document and granted a preliminary decree for partition of the plaintiff's half share in the first and second schedule properties and also some of the items in the third schedule properties, with costs. Aggrieved against the decree and judgment of the trial Court, defendants 2 and 3 have filed the present appeal before this Court.
8. The learned Counsel for the appellant contended that the will propounded was the last will made by the testatrix while she was in a sound disposing state of mind and memory, that there is nothing unnatural in the disposition made by the testatrix, as she has bequeathed her properties to her brother's son who was looking after her and to her sister's daughter who was brought up by her as her foster daughter and given in marriage, and that as the execution and attestation of the will has been proved as required under law, the trial Court was erroneous in not accepting the will and decreeing the suit of the plaintiff. The learned Counsel further contended that the alleged suspicious circumstances regarding the execution of the will do not cast any doubt about the genuineness and valid execution of the will and even otherwise they have been fully and satisfactorily explained by the appellants and the trial Court should have therefore, accepted the will as true and genuine.
9. The learned Counsel for the respondents contended that as there are a number of suspicious circumstances surrounding the will which had not been satisfactorily explained by the propounder, the trial Court was fully justified in refusing to accept the will as genuine. The suspicious circumstances enunciated by the learned Counsel for the respondents are:
1. At the time of making the will, the testatrix had no sound disposing state of mind.
2. The will was not executed voluntarily by the testatrix.
3. The will was presented for registration before the Sub-Registrar only after the death of the testatrix.
4. The well-formed and neat signature of the testatrix in the, will strongly suggests that the blank pagers containing the signature of the testatrix must have been utilised for fabricating the will.
5. There is considerable interspace between the contents of the will and the signature of the testatrix in all the four sheets in Exhibit B-2.
6. The testatrix bequeathing more items of properties in favour of the third defendant in preference to her own foster daughter, the second defendant, shows that the disposition in Exhibit B-2 is unnatural, unfair and improper.
7. The non-production of the draft from which Exhibit B-2 was prepared.
10. The legal position regarding proof of due execution and attestation of a will can be summed up as under, from the decisions of the Supreme Court reported in H. Venkatachala Iyengar v. H. N. Thiminajamma and another : AIR1959SC443 , Shashi Kumar Banerjee's case : AIR1964SC529 , and Beni Chand (since dead) now represented by Legal Representatives v. Smt. Kamala Kunwar and Ors. : 1SCR578 .
(a) The onus is always on the propounder of the will to prove its execution and genuineness.
(b) Proof of testamentary capacity and signature of the testator as required by law is sufficient to discharge the onus.
(c) Proof of execution of will is generally furnished by the evidence of persons in whose presence the will was actually executed or who subscribed their names to the document after seeing the testator executing it and putting their names to the document as attesting witnesses.
(d) An attesting witness is one, who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgement from the executant as regards the execution of the document.
11. The due execution and attestation of the will has to be. proved in the above manner. When such attesting witnesses give clear and cogent testimony regarding execution, one should require very strong circumstances to repel the effect of such testimony. If there are suspicious circumstances regarding the execution of the will, it is for the propounder to satisfy the, conscience of the Court and remove the doubt regarding the, genuineness of the will by clear and satisfactory evidence. Generally, the suspicious circumstances regarding execu-tion of the will are:
1. The genuineness of the signature of the testator.
2. The condition of the testator's mind.
3. The disposition made in the will being unnatural, improbable or unfair in the light of relevant circumstances.
4. The propounder taking a prominent part in the. execution of the will which confers substantial benefits on him.
5. The suspicion alleged must be inherent in the transaction which is challenged and not a suspicion arising out of a mere conflict of testimony. Where such suspicious circumstances are alleged, the Court would expect that all such legitimate suspicious surrounding the execution of the will should be completely removed by the propounder of the will before it is accepted as the last will of the testator.
12. In the present case the evidence shows that the deceased testatrix was suffering from tuberculosis and her condition became worse one month prior to her death and her hands and legs were in swollen condition. She was admitted in the hospital on 17th November, 1972 and died on 1st December, 1972, while the will (Exhibit B-2) is alleged to have been executed by her on 12th November, 1972. The learned Counsel for the respondents contended that considering the proximity of these dates, the testatrix would not have been in a sound disposing state of mind at the time, of the alleged execution of Exhibit B-2. The illness and physical weakness attributed to the deceased, even if true, will least affect her mental health or her disposing state of mind. Sound disposing state of mind by the testatrix is a mental condition least affected by the illness or other physical condition attributed to her. P. W. 4 the doctor who last treated her on 1st November, 1972 has stated that the testatrix, though weak, was quite sound in mind. Between 1st November, 1972 and 12th November, 1972, the date of execution of the will, no circumstance is alleged, pleaded or proved to show that her condition would have deteriorated to such extent as to conclude that the testatrix lost her sound disposing state of mind! at the time of execution of the will The swelling in the hand is not such a physical disability to incapacitate the testatrix from signing the will. On the evidence on record, we are satisfied that the testatrix was in a sound state of mind when she executed Exhibit B-2.
13. Under Exhibit B-2, substantial properties. have been bequeathed to third defendant. The learned Counsel for the respondents con-tended that D.Ws. 1 to 5. the attestors to Exhibit B-2, are either related to the third defendant or interested in him and one Subramania Pillai, who is a neighbour and who has been helping the testatrix in writing letters has not attested Exhibit B-2 and it is a suspicious circumstance to show that Exhibit B-2 would not have been voluntarily executed by the testatrix. Excepting- D.W. 3 who has married the sister of the third defendant, the other attestors to Exhibit' B-2 are in no way related or interested in the third defendant. D.W. 1 is a respectable witness owning- properties to the extent of Rs. 8 lakhs. The suggestion that D.W. 1 is an interested wit-< ness since his brother is Vice-President of the Ambasamudram Panchayat Union, while the third defendant is a member therein is hardly worthy of acceptance. D. W. 2 is a neighbour of the testatrix and absolutely nothing has been suggested to discredit his evidence. D. W. 4 is an employee of the Ambasamudram Panchayat Union and the suggestion that he is an obliging witness since the third defendant is a Member of that) Panchayat Union is not acceptable. About eight years back the third defendant was working as a cashier in the shop of D.W. 5 and the suggestion is that on account of this D.W. 5 has come forward to depose in favour of the third defendant. This suggestion is also equally unworthy of acceptance. The evidence of D.Ws. 1 to 5 regarding the due execution and attestation of the will is cogent and convincing apart from small discrepancies in minor and immaterial particulars. Their evidence is trustworthy and acceptable and we see no reason to reject their evidence. The non-attestation of will (Exhibit B-2) by Subramania Pillai. who was a neighbour helping- the testatrix to write letters is not such a material circumstance as to discredit the truth and genuineness of Exhibit B-2. In Nand Kumar Sinah v. Chander Kishore Saran A.I.R. 1957 Pat. 377, the attesting witnesses were testator's own servants and relations and the will was held to be, properly executed and attested even though wit-nesses in a better position were available and were not railed to attest.' So. even granting that the attestors to Exhibit B-2 are closely known to the third defendant that circumstance itself is not sufficient to throw out the document.
14. The will (Exhibit B-2) was executed on 12th November, 1972. The testatrix was admitted in the hospital on 17th November, 1972 and she died on 1st December, 1972. The will was presented for registration before the Sub-Registrar on 6th December, 1972. Learned Counsel for the respondents contended that though, according to the evidence adduced on the side of the plaintiff, it was decided that the will should be immediately registered, yet it was presented for registration only after the death of the testatrix and this is stated to be a strong suspicious circumstance casting doubt regarding the genuineness of the will. The evidence shows that after the execution of the will (Exhibit B-2) the condition of the testatrix was fast deteriorating necessitating her admission into the hospital and after admission, the third defendant was attending on her in the hospital. Attending the ailing testatrix was apparently given higher priority than presentation of the will for registration. Once it is established that the testatrix was in a sound disposing state of mind and there was due execution and attestation of the will, the. mere fact that there was delay in presenting the will for registration is not by itself sufficient to discredit the truth and genuineness of the will especially when registration of the will is not a legal requirement for its validity.
15. Exhibit A-10 is the postal acknowledgment by the testatrix for the receipt of a lawyer's notice sent to her. This has been signed by her on 18th September, 1972. The learned Counsel for the respondents contended that the signature of the testatrix in Exhibit A-10, signed two months before her death, shows that the signature was shaky and was not well formed whereas the signature in Exhibit B-2 is very neat and legibly written and the blank papers containing the signature of the testatrix obtained by the third defendant while conducting litigation on her behalf, must have been pressed into service for bringing forth into existence the fabricated will, Exhibit B-2. There is absolutely no evidence to prove that the signature in Exhibit A-10 is that of the testatrix. The evidence of P.W. 3, the Vakil's clerk whose advocate has issued the notice to the testatrix, cannot prove that the signature in Exhibit A-10 is that of the testatrix . That apart, blank papers containing the signature of the testatrix obtained by the third defendant while conducting litigation on her behalf were used for fabricating Exhibit B.-2 has not been set up or pleaded in the plaint. Excepting a bare suggestion to the third defendant while he was in the witness box, this plea has not been substantiated by any evidence. The litigation was conducted by the third defendant four or five years prior to the death of the testatrix. The plea that the signature of the testatrix, obtained in blank papers were carefully preserved by the third defendant to later on use the same for fabricating the will is too thin to carry conviction. The trial Court's finding is 'As the third defendant admits that he was assisting and helping late Arumugathammal, he had opportunities to come into possession of the signatures of Arumugathammal in blank sheets because there were a number of litigations against her and the person who assisted her could have easily obtained her signature in the blank sheets stating that the same was required for preparing petitions and affidavits'. This finding of the trial Court is purely an inferential finding based on surmises and suspicion and is not based on any legal evidence, and cannot, therefore, be accepted. The signature of the testatrix under Exhibit B-2 has not been pot immediately below the contents of the document. in the first sheet about half an inch of space is left between the writing of the will and the signature of the testatrix. Similarly, in the other sheets also space is left between the contents of the documents and the signatures of the testatrix. The learned Counsel for the respondents contended that it is an indication to show that the will, Exhibit B-2, is a fabricated document . Learned Counsel for the appellants contended that the document writers in that locality were in the habit of leaving some space below the writing of the document. C.M.P. No. 10059 of 1979 was filed to receive another document executed by the testatrix as additional evidence to show that the practice of signing documents leaving some space is prevalent in that locality. Since the document filed is relevant and its execution by the testatrix is not disputed, it is received as additional evidence. The C.M.P. is allowed. Leaving larger or smaller space between the contents of the document and the signature of the executant depends on the practice followed by the document writers and no adverse inference can be drawn merely because in Exhibit B-2 in each sheet some space is left blank between the contents of the document and the signature of the executant.
16. Under Exhibit B-2 only one item of property is bequeathed in favour of the second defendant and the rest of the property including cash of Rs. 11,000 has been bequeathed in favour of the third defendant. No provision was made to the mother of the testatrix, though she was alive when Exhibit B-2 was executed. The learned Counsel for the respondents contended that the testatrix bequeathing substantial properties in favour of the third defendant in preference to her own foster daughter, the second defendant herein, without even making any provision for her mother is an unnatural disposition throwing doubt regarding the genuineness of Exhibit B-2. It is seen that a house property was already bequeathed in favour of the second defendant under a will executed by the husband of the testatrix. Defendant 2, whose interest is alleged to have been affected adversely under Exhibit B-2 has not questioned that the disposition under Exhibit B-2 is unfair. Though more items of properties have been bequeathed in favour of the third defendant then the second defendant under Exhibit B-2, it can be noticed that the properties bequeathed in favour of the third defendant are saddled with certain obligations for carrying out and expending the income for certain religious and charitable trust, which was carried on by the testatrix's husband during his lifetime. If really the third defendant was fabricating a will, he would not have cast on himself the various obligations which the will (Exhibit B-12) imposes on him. Viewed in this light, the disposition under Exhibit B-2 cannot be stated to be unfair, unnatural or improper.
17. The evidence shows that a draft was prepared for Exhibit B-2 and since the draft has not been produced learned Counsel for the respondents contended that this is a suspicious circumstance surrounding the execution of the will. No question has been put or explanation elicited as to why the draft for Exhibit B-2 has not been produced. In the circumstances, no adverse inference can be drawn from the mere fact of non-production the draft for Exhibit B-2
18. The legatees and propounders of the will are the sister's daughter and brother's son of the testatrix. The persons who contested the factum and validity of the will are the brother and sister of testatrix's husband. The love and affection of the testatrix will have more leanings towards her own relations than the relations of her husband and the normal inclination would be to reward her own relations with an inheritance, rather than the relations of her husband. The second defendant is the foster-daughter of the testatrix brought up from her childhood. The testatrix has educated the second defendant upto S.S.L.C. and given her in marriage. The testatrix's husband has also bequeathed a house property in favour of the second defendant. Defendant 3 is the brother's son of the testatrix who was helping her and who was looking after her at the hospital and remaining there till her death. Excepting D.W. 3, the other attestors to Exhibit B-2 are disinterested, independent witnesses. Their evidence regarding due execution and attestation of Exhibit B-2 is natural and convincing. The alleged suspicious circumstances surrounding the execution of. the will have been fully explained and all doubts and suspicions regarding- the execution of Exhibit B-2 have been removed and the Court's conscience satisfied. The finding of the trial Court that the will, Exhibit B-2 is not true and genuine is erroneous and is accordingly set aside. The plaintiff is not. therefore, entitled to the partition prayed for in the plaint.
19. In the result, the appeal is allowed without costs and the suit filed by the plaintiff is dismissed but without costs. Plaintiff to pay court-fees.