(Judgment of the Court was made by PRABHA SRIDEVAN,J.) This appeal is filed against the judgment and decree in T.O.S.No.51 OF 1987. The Will that is sought to be proved was according to the appellants the last Will of Annammal, the mother of the first appellant. The Will as per the original pleadings was dated 01-11-1980. But, subsequently, the sale was amended as 12-11-1980. The father of the first appellant Sundaramoorthy died on 17-11-1981. The mother died on 12-04-1982. The application for probate was filed in 1987 in O.P.No.549 of 1987 and it was converted as T.O.S.No.51 of 1987. Before the learned Judge four witnesses were examined on the side of the appellants; one witness on the side of the respondent; 18 exhibits were marked. The T.O.S. was dismissed.
2. Briefly the facts are: The appellants are the son and daughter-in-law of Sundaramoorthy and Annammal. According to them, the Will was duly executed and registered. No executor was appointed and therefore, they prayed for grant of letters of administration. The first defendant filed the written statement. She denied that she had in her possession the original Will since the appellants only produced the certified copy of the Will. It was alleged that the Will was obtained in a fraudulent manner and it was not true. There are two other daughters and two other sons and there was no reason to exclude all of them. There was also a settlement deed dated 18-09-1981, by which a portion of the property said to have bequeathed under the Will to the appellants have been given to the first respondent. According to them, the appellants took advantage of the ill-health of the appellant and she was under the domination and control and got the Will prepared. In the reply statement, this was denied. As regards the question whether the Will was true and genuine, it was found by the learned Judge that there were several suspicious circumstances in obtaining the Will and therefore, the Will could not be considered as genuine. The original Will was not produced and the attesting witnesses were not examined, though one attesting witness was admittedly alive. The learned Judge was of the opinion that even if he was ill nothing stops from examining him on commission and had further noted that there was even a discrepancy regarding the date of the Will. In the pleadings, the date of the execution was first shown as 01-11-1980, whereas the certified copy of the Will which was marked as Ex-P16 shows that the Will was executed on 12-11-1980. Therefore, this discrepancy was also noted by the learned Judge. The learned Judge also held that the requirements of
Section 69 of the Indian Evidence Act was not satisfied and further in the pleadings it was stated that the Will was executed only by Annammal whereas Ex-P16, the certified copy would show that it was executed by Annammal and Sundaramoorthy. In these circumstances, the plaintiffs have neither proved the attestation as required by law.
3. The learned counsel for the appellant would strenuously contend that on the same date the Will and the Settlement Deed were executed and P.W.4 was examined to prove the sound and disposing state of mind of Annammal and referred to the evidence of P.W.4. The learned counsel for the appellant also referred to the evidence of P.W.2, the Sub-Registrar of Kodambakkam and submitted that this was a registered Will and P.W.4 had spoken of the true registration of the Will and therefore, that should be accepted. The learned counsel submitted that when it is clear from the evidence of P.W.4 that Annammal was in sound and disposing state of mind and when the Will had been duly registered which is spoken to by P.W.4, there is no justification to disbelieve the Will. The learned counsel also submitted that the property that was bequeathed under the Will belonged exclusively to Annammal and therefore, it was stated that the Will was executed by Annammal, since the father Sundaramoorthy had no interest in the property to bequeath it on the appellants.
4. The learned counsel also relied on several judgments especially to 2006 (2) L.W. 658 (Pentakota Satyanarayana & others Vs. Pentakota Seetharamam & Others) where it was held in Paragraph Nos.25, 26 that "A presumption by a reference to Section 114 of the Evidence Act shall arise to he effect that particulars contained in the endorsement of registration were regularly and duly performed and are correctly recorded". The learned counsel submitted that would clearly apply. The learned counsel also referred to 2005 (1) SCC 280(Meenakshiammal Vs. Chandrasekaran) and submitted that when allegations of undue influence or guilty is made, it is upon the person making such allegations.
5. Heard the learned counsel for the respondent.
6. In this case, the requirements of proof of Will both under the Indian Succession Act and the Indian Evidence Act are not satisfied. In the first place, the original Will was not produced. Though a notice to produce the original Will was issued to the respondent, she had clearly stated that the alleged Will was not with her and in these circumstances, she is not able to produce. It is not as if she refused to produce. It is in these circumstances, the learned Judge had held that the appellant could have examined some other family member to prove the custody of the Will. Therefore, the original Will is not before the Court.
7. Next we come to examination of the attesting witnesses.
It is no doubt true that one of them N. Balakrishnan had died. But the other witness could have been examined on Commission,if he was ill as it was alleged. The propounder could have examined someone to prove the due attestation of attesting witness and the signature of that person. This was not done. The evidence of P.W.4 does not help. It merely shows that the date of execution of the Settlement deed, Annammal was in a sound and disposing state of mind.
8. A more vital factor in this case is that the appellants make material mistakes regarding crucial aspects of the Will. (1) The Will was executed by both the mother and father, but their categoric statement in the pleadings is that the Will was executed by the mother. (2) The appellants are not correct about the date of the Will. Originally, only the plaint mentioned 01-11-1980, subsequently it was amended as 12-11-1980. It was pleaded that there was a typographical error. But we must remember that with regard to a Will, we are testing whether a person who is not before us had actually executed the document. Therefore, the Court must be satisfied that all the suspicious circumstances are duly explained and there is nothing to disturb us regarding the due attestation, execution etc. Here these mistakes make us doubt the case of the appellant. Moreover, the Will has not been proved in accordance with law.
9. In all the cases that have been produced before us, the Courts have held that the requirement of proof of execution and attestation cannot be dispensed with. Even in 2006 (2) L.W. 658(supra) we find that the attesting witnesses had been examined and the scribe had also been examined. It is only thereafter the Supreme Court held that once it is registered, the registration is supposed to be duly done. We cannot ignore the statutory requirements of the Indian Evidence Act and the Indian Succession Act.
10. Therefore, we confirm the judgment of the learned Single Judge. The appeal is dismissed. No costs. The connected miscellaneous petition is closed.
glp