Original Side Appeal against the judgment and decree dated 21.7.2000 in T.O.S.No.42 of 1995 on the file of this Court.
The plaintiff is the appellant herein. She preferred Testamentary Original Suit in question in regard to the Will registered on 21.3.1990, and the suit having been dismissed, the present appeal has been preferred.
2. The Will was executed by late Pachaiappan. The first defendant is the wife of Natesa Reddiar and she is the mother of the deceased Pachaiappan; the second defendant is the adopted son of the late Pachaiappan. Pachaiappan died on 8.8.1992 and stated to have left his last Will and testament duly executed by him on 21.3.1990 in the presence of witnesses.
3. The case of the plaintiff is that the deceased had no issues of his own; the third defendant, though was married to the deceased, abandoned and deserted him more than ten years back and even customary divorce was also obtained by the deceased before this death and before the Panchayat; the third defendant had been living with one Sadhasivam and she got two children through him and so, she was disinherited by the deceased himself under the Will. The plaintiff is the sister of the deceased and is the executrix under the Will.
4. The learned single Judge, by the impugned judgment dated 21.7.2000, framed three issues including the issue whether the Will dated 21.3.1990 is true, valid and genuine. After taking into consideration the evidence placed on record, the learned single Judge held that though the Will (Ex.P-1) is a registered document, the valid execution and attestation of the same have not been proved in the instant case. The evidence of the witnesses were contradictory.
5(i). Learned counsel for the appellant/plaintiff submitted that the learned single Judge failed to consider the entire evidence in proper perspective and erred in dismissing the suit based on certain minor discrepancies in the oral evidence adduced on the side of the appellant/plaintiff.
(ii) It was also submitted that the brother of the plaintiff, namely the late Pachaiappan died in Chennai on 8.8.1992 at the T.B.Hospital, Otteri, Chennai-12. The said Pachaiappan had executed the Will at Chennai, which was duly registered on 21.3.1990, i.e. on the same day, in the hospital, where he was undergoing treatment, in the presence of attesting witnesses, the appellant and the Sub-Registrar, Anna Nagar. The Will is dated 21.3.1990 and executed and presented for registration on the same day and there was no occasion to disbelieve the Will, particularly when the plaintiff explained as to why the deceased Pachaiappan discarded others and executed the Will in her favour.
6. Learned counsel appearing on behalf of the respondents/defendants, while controverting the above submissions, referred to the evidence of the witnesses including the attesting witnesses. It was submitted that the evidence of two witnesses, P.Ws.1 and 2, is contradictory and genuinity of the Will was rightly doubted.
7.(i). We have heard learned counsel appearing for the parties and noticed the rival contentions, the judgment in question and the evidence on record.
(ii) The case of the plaintiff was that the Will was executed in the Hospital when the late Pachaiappan was undergoing treatment.
(iii) The plaintiff was examined as P.W.1. In her examination, she stated that the third defendant deserted the deceased and she was living separately and so the deceased executed the Will (Ex.P-1) in her favour, since the deceased had no kin and kith of his own and he had also no issues. She vehemently contended that Ex.P-1 is the last Will and testament executed by the testator. In her examination, she stated that the testator Pachaiappan executed Ex.P-1 Will and it was a registered Will and he signed the Will on 21.3.1990, but it was prepared earlier to that, it was registered at the Hospital where the deceased was taking treatment and Ramachandran and Gopal were the witnesses at the time of execution of the Will. P.W.1 also claimed to have been present at the time of execution of the Will. She further stated that the testator was in a sound and disposing state of mind at the time of execution of the Will (Ex.P-1) and the testator died only two years after executing the Will.
(iv) In her cross-examination, P.W.1 could not remember as to when the deceased was admitted in the hospital and when he was discharged. She further stated that the Will was executed by the testator in his own handwriting in his house and it was brought to the hospital.
8. It will be evident that the Will is not in the handwriting of the testator, but is a typed one in English. P.W.1 stated that the late Pachaiappan did not know English. The address of the attestors is not given in page 3 of the Will, but only on the reverse side of page 1, as identifying witnesses. P.W.1 stated that the document was registered on 23.3.1990, but the date of execution of the document is stated as 21.3.1990. Even there is alteration in the date in page 3 of the Will.
9(i). Ramachandran had been examined as P.W.2. He stated that the deceased Pachaiappan told him that since the third defendant left him, he wanted to execute the Will and himself and the plaintiff went to the Registrar's office at Anna Nagar and they were told that they must engage a counsel for writing the Will and then they met the Advocate Rahman Sahib who wrote the Will; the late Pachaiappan took the Will to Ayyanavaram and the testator wanted to register that Will. The evidence of P.W.2 is that the Advocate Rahman Sahib wrote the Will, whereas P.W.1 says that the testator himself wrote the Will in his own handwriting in her presence.
(ii) P.W.2 further stated that the late Pachaiappan took the Will to Ayyanavaram and he was admitted in a Hospital in March 1990 and when he went and saw him in the Hospital, the testator wanted to register the Will and one person brought the Will to the Hospital and then, he approached the Advocate Rahman Sahib and he asked P.W.2 to contact the Sub-Registrar, who agreed to register the Will at about 3.30 p.m.
(iii) The learned single Judge noticed that the aforesaid statement was also contrary to the version of P.W.1, who (P.W.2) during cross-examination stated that within two days, the Advocate prepared the Will and on 21.3.1990, they approached the Sub-Registrar to register the Will and obtained the signature of the late Pachaiappan.
(iv) The learned single Judge, on a perusal of Ex.P-1 Will, found that the signature of the testator in each page appears to be different. P.W.2 also admitted that in his evidence. P.W.2 did not say in his evidence that he saw the testator signing the Will at the time of execution and thereafter, he attested the Will. He simply stated that the testator wanted to register the Will and the Advocate was engaged to write the Will.
10. We have noticed the above said contrary version in the evidence of the two witnesses, namely P.W.1 (the plaintiff) and P.W.2 (one of the attesting witnesses). The other attestor or the Sub-Registrar were not examined. The signature of the testator in the Will in different places was found to be varying. We have also perused the Will (Ex.P-1).
11 (i). P.W.2 stated that the Will was prepared two days earlier by the Advocate Rahman Sahib; on the other hand, P.W.1 stated that the Will was written in her presence by the testator.
(ii) From a reading of the last Will and testament of Pachaiappan, i.e., Ex.P-1, in the opening paragraph, it will be evident that the testator stated that he was undergoing treatment at the Railway Hospital, Perambur, Madras; the place "Perambur" was struck down and made it as "Ayanavaram" and "23" was added after "Madras", without any signature of either the testator or the attestors.
(iii) In the third paragraph of the Will, it is stated that the testator was not keeping good health and at that time, he was hospitalised and undergoing treatment in the said Railway Hospital and operation on his person had been fixed on 15th March, 1990, meaning thereby that the Will was executed prior to 15.3.1990.
(iv) In the last paragraph of the first page of the Will (paragraph 5), the testator stated that he was employed at that time as "Blacksmith bearing Token No.S.247, Gang-2 Smith Shop Loco Works, S.Rly, Perambur, Madras-23." In the second page, in the third paragraph, again he has shown the date of execution of the Will as 14th March, 1990. But from the last page of the Will, it appears that the date "14th day of March 1990" was interpolated and striken for and it was made "21st day of March, 1990".
12. In view of the aforesaid discrepancies as noticed by us in the Will (Ex.P-1) and the contradictory statement made by the two witnesses, i.e. the plaintiff (P.W.1) and Ramachandran (P.W.2) (one of the attestors), we are not inclined to interfere with the impugned judgment passed by the learned single Judge.
13. There being no merits, the appeal is dismissed. But there shall be no order as to costs.
(S.J.M.J) (M.V.J) 11 - 2 2008 Index: Yes Internet: Yes cs To Sub-Assistant Registrar, Original Side, High Court, Madras. S.J.Mukhopadhaya,J and M.Venugopal,J cs Judgment in O.S.A.No.394 of 2001 11 - 2 2008