K.RAVIRAJA PANDIAN,J.
The appeal is filed by defendants No.3 and 4 against the judgment and decree dated 24.9.2002 made in O.S.No.102 of 2000 on the file of the Additional District Court (Fast Track Court NO.1) at Chengalpattu.
2. The suit was filed for partition and separate possession of 6/10th share of the plaint schedule property and also for mesne profits. The undisputed facts rather the admitted facts are that one Vedachala Naicker was the owner of the plaint schedule property. One Kanniammal was his wife. They had no issues. Vedachala Naicker under Ex.A.1 dated 29.9.1946 executed a settlement deed in favour of his wife Kanniammal and one Jayaram Naicker, his brother-in-law in respect of the plaint schedule property. The said Vedachala Naicker died in the year 1952. During his life time, after Ex.A.1, and during the life time of Kanniammal and Jayaram Naicker, the properties were enjoyed jointly by Kanniammal and Jayaram Naicker. Jayaram Naicker died on 21.10.1972. Jagadhambal first defendant is the wife of Jayaram Naicker. Defendants No.2 to 4 and the plaintiff are the legal heirs of Jayaram Naicker. The plaintiff Shanthi filed the above suit for partition of 6/10th share and mesne profits on the ground that after the death of Vedachala Naicker, Kanniammal took her in adoption and as such she is the adopted daughter of Kanniammal. Being the adopted daughter of the deceased Kanniammal, she is entitled to the entire half share of Kanniammal in the suit property. In respect of the other half share, she is entitled to 1/5th share, being the daughter of Jayaram Naicker. Thus, she is entitled to 6/10th share of the suit property. The further case of the plaintiff is that Item Nos.1 and 2 of the properties are house properties deriving rental income of Rs.20,000/- per month. She is entitled to 6/10th share from the income of the house property.
3. The first defendant-mother of the plaintiff and defendants No.3 and 4 brothers of the plaintiff filed written statement, which was adopted by the second defendant, contending that after the death of Vedachala Naicker, the suit properties were jointly enjoyed by Kanniammal and Jayaram Naicker. After the death of Jayaram Naicker on 21.10.1972, Kanniammal lived along with defendants No.1,3 and 4 and they only had taken care of her. On 23.2.1988, when Kanniammal was in a sound disposing state of mind bequeathed her half share in the plaint schedule property to defendants No.3 and 4 under Ex.B.3 Will. The first and second defendants executed release deeds releasing the right over the suit property in favour of defendants No.3 and 4 under release deeds dated 31.3.1999 and 3.8.1998. It is the further defence of the defendants that they have paid a sum of Rs.75,000/- and cement and steel to the value of RS.25,000/- to the plaintiff in lieu of her 1/10th share in the suit property. After receiving the said sum and cement and steel, the plaintiff abandoned her right over the property as per the advice of one S.S.Mani in the year 1995. Thereafter defendants No.3 and 4 are in possession and enjoyment of the property and the first and second items of the property are let out to one Jayaseelan and Gnanaprakasam respectively. However, those properties were constructed by obtaining loan from the said Jayaseelan and Jnanaprakasam in a sum of Rs.3,00,000/- and Rs.1,50,000/- respectively. As such, the plaintiff is not entitled to any partition in the suit property and the suit has to be dismissed.
4. The trial Court after considering the evidence let in to sustain the case of the respective parties, has held that the plea of adoption put forth by the plaintiff was not proved and further held that the suit properties were jointly enjoyed by the plaintiff and defendants. The plea of defendants that the property has been bequeathed in favour of defendants No.3 and 4 has also been negatived by the trial Court as the Will has not been proved as per law and held that the plaintiff is entitled to 1/5th share in the property of Jayaram Naicker. As Kanniammal died intestate, in respect of the property of Kanniammal also, the plaintiff is entitled to 1/5h share. As such, a preliminary decree has been granted for 2/10th share of the suit property. Aggrieved by that decree, the present appeal has been filed by defendants No.3 and 4.
5. On behalf of the appellants, it is contended that when the plaintiff has come forward with false claim that she was the adopted daughter of Kanniammal and trial Court having found that the claim is not sustainable ought to have dismissed the suit in its entirety by totally eschewing the evidence of P.w.1- the plaintiff. The trial Court has not appreciated the facts of plaintiff relinquishing her right after getting a sum of Rs.75,000/- in cash and cement and steel to the value of Rs.25,000/- for the purpose of putting up her own house, in a proper perspective. The finding that Ex.B.3 Will is not genuine is also in accordance with law.
6. The respondents argued for sustaining the decree.
7. Heard the argument of the learned counsel on either side and perused the materials on record.
8. It is true that the plaintiff has projected the case as if she was taken in adoption by Kanniammal during her life time. As per the Hindu Adoption and Maintenance Act, when a plea of adoption is put forth, the requisites of a valid adoption under
Section 6 have to be proved by the person who put forth such plea. No adoption shall be valid unless (i) the person adopting has the capacity, and also the right, to take in adoption, (ii) the person given in adoption has the capacity to do so; (iii) the person adopted is capable of being taken in adoption and (iv) the adoption is made in compliance with the other conditions mentioned in the Chapter II of Hindu Adoptions and Maintenance Act, 1956.
9. In this case, the first defendant is none other than the mother of the plaintiff, who in her evidence as D.W.1 categorically denied the factum of adoption. Even the customary adoption pleaded has not been proved by letting in cogent evidence by the plaintiff-P.W.1. Of course, P.W.2 deposed to the effect that the said Kanniammal used to say that he was also her son as she taken in adoption of Shanthi. The said evidence cannot be regarded as evidence for proving the factum of giving in adoption and taking in adoption as required under the law. The said evidence rather also cannot be regarded as establishing a customary mode of taking in adoption. Thus, the plea of adoption has been rightly rejected by the trial Court, but being a daughter of Jayaram Naicker and the legal heir of Kanniammal, despite the rejection of plea of adoption put forth by the plaintiff, she is entitled to 1/5th share from each = share of the plaint schedule properties. Hence, the first contention raised has to be rejected as the same is raised for the sake of appeal.
10. In respect of the second contention that the plaintiff has relinquished her right of 1/5th share in the property of Jayaram Naicker after receiving a sum of Rs.75,000/- and steel and cement of value of Rs.25,000/- for putting up her house in the year 1995 in the presence and as per the advice of one S.S.Mani has not been established by the defendants by any acceptable evidence. The first defendant as D.W.1 and the second defendant as D.W.2 have spoken to in their evidence that the plaintiff has agreed to relinquish her 1/5th share in the property of Jayaram Naicker after receiving RS.75,000/- cash and steel and cement worth about Rs.25,000/-, however, refused to do so. Except their evidence, it is admitted that no documentary evidence is produced to establish the said advancing of money and material. Even S.S.Mani, in whose presence and on whose advice, the plaintiff was alleged to have received the money and agreed to relinquish her right has not been examined. The defendants have not been taken any pain to let in evidence that during the relevant time the plaintiff was constructing a house. In the absence of any evidence, much less, worthy evidence to establish their contention, we are of the view that the trial Court has rightly rejected the plea of defendants as not established and we do not find any irregularity.
11. In respect of the third contention as to the genuineness of Ex.B.3 Will, the available evidence on record has established that at the time of execution of Ex.B.3 Will, the deceased Kanniammal was not in a sound disposing state of mind. P.W.3, an independent witness who is an auto driver has stated that he has taken the deceased Kanniammal to the Registrar's Office at the request of defendants NO.1,3 and 4. During that time, she was not in a disposing state of mind. Defendants No.3 and 4 have affixed Kanniammal's thumb impression in the Will. He signed as a witness at the request of D.W.1 Jagadhambal. The beneficiaries are not only available, but also took active part in the execution of the Will and also signed as witnesses. Those circumstances can only be regarded as suspicious circumstances.
12. In the case of present nature, the line of judgments of the Apex Court say in one voice that the onus of proving the Will is on the propounder. In the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court for the court to accept the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. There must be real, germane and valid suspicious features and not fantasy of doubting mind. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testators mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testators mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence.
13. The legal requirement in terms of sections 63 of the Indian Succession Act, 1925 and 68 of the Indian Evidence Act, 1872 is now well settled. A Will like any other document is to be proved in terms of the provisions of the Indian Succession Act and Indian Evidence Act. The testamentary capacity of the propounder must be established. The execution of the Will by the testator has to be proved. Atleast, one attesting witness is required to be examined for the purpose of proving the execution of the Will. However, it is also required to be shown that the Will has been signed by the testator with his free Will and that at the relevant time he was in the sound disposing state of mind and understood the nature and effect of disposition. It is also required to be established that he has signed the Will in the presence of two attesting witnesses, who attested his signature in his presence or in the presence of each other. The deprivation of due share by the natural heirs by itself is not a factor, which would lead to the conclusion that there existed suspicious circumstances. But the background of the facts would tilt to the balance otherwise. When a will is prepared and executed under circumstances which raise the suspicion of the Court, it lies on the propounders not merely to prove the execution of the will, in the sense that it was signed by the testator, but also to adduce evidence which removes such suspicion and to satisfy the Court that the testator knew and approved of the contents of the Will, vide Sadachi Ammal v. Rajathi Ammal, AIR 1940 Mad 315, Indu Bala Bose v. Manindra Chandra Bose, (1982) 1 SCC 20), Guro (Smt) v. Atma Singh, (1992) 2 SCC 507, S. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443, Rani Purnima Devi v. Kumar Khagendra Narayan Dev, AIR 1962 SC 567, Savithri v. Karthyayani Amma, (2007) 11 SCC 621), Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369. Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande, (2003) 8 SCC 537, P.P.K.Gopalan Nambiar V. P.P.K.Balakrishnan Nambiar, AIR 1955 SC 1852, Pushpavathi V. Chandraraja Kadamba, AIR 1972 SC 2492, Rabindra Nath Mukherjee v. Panchanan Banerjee, AIR 1995(4) SCC 459 and Daulat Ram v. Sodha,(2005) 1 SCC 40.
14. Learned counsel for the appellants relied on two decisions of this Court in the case of SAROJA VS. CHENNIMALAI, 2003(4) CTC 330 and DR.A.RAVIKUMAR VS. M.SAVITHIRI, 2006(3) CTC 720 in support of the case of the appellants to prove the execution of the Will. In Saroja's Case, though Will was admittedly executed by the testator in 1972, the same was not produced before the Court and only the subsequent Will executed in 1979 was produced by the second daughter-in-law claiming share in property. One attesting witness admitted his signature in the Will but denied execution of Will by testator and both attesting witnesses deposed against propounder of Will. Theson of second daughter-in-law who was also beneficiary under 1972 Will and whose share got reduced under 1979 Will deposed that testator executed Will in 1979 and the Sub Registrar had deposed that both attesting witnesses identified testator and signed on reverse of first page of Will as identifying witnesses. In those factual circumstances, this Court held that the Will was proved even though attesting witnesses deposed against propounder of Will as evidence of son of propounder of Will was corroborated by evidence of independent witness Sub registrar and attesting witnesses had admitted their signature in the said Will or scribe of Will also testified about Will and testator was in sound and disposing state of mind.
15. In the other case of Dr.A.Ravikumar, the testator executed Will bequeathing properties to sons born in wedlock with second wife, excluding children of predeceased son born in wedlock with first wife and only daguhter born in wedlock with first wife, and also excluding second wife. Daughter alone questioned validity of Will and letter addressed by her disclosed strained relationship between her and testator and that she was being brought up by her maternal grandmother. One of attesting witness deposed that he had attested signature of testator and that it was on working day. In those factual circumstances, by rejecting the plea that the attesting witness used to leave for work at 7 a.m. to Kancheepuram did not mean that he was not available on date of attestation at 10.30 a.m., in the absence of any cross-examination or suggestions to such effect, this Court held that the Will was proved.
16. The evidence as to the sound disposing state of mind of the testatrix and the way in which the thumb impression had been affixed in the Will and the role played by the beneficiaries of the Will and attestation of the Will as spoken to by P.W.3 clearly disclosed that the genuineness of the Will has not been proved as required by law.
17. In the light of the dictum laid down by the Supreme Court, on the available evidence, which has been discussed above, the only conclusion that could be arrived at in this case is that the execution of the Will in a disposing state of mind of the testatrix and the attestation of the Will have not been proved at all.
18. For the above said reasons, the appeal fails and the same is dismissed. However, there is no order as to costs.
usk Copy to
1.The Addl.District Judge (Fast Track Court No.1) Chengalpattu