The plaintiff in O.S.No.135 of 1992 on the file of the Sub Court, Tirunelveli is the appellant. The said suit was laid by him for partition seeking 1/2 share in the suit properties. According to the plaintiff, the suit properties originally belonged to one Krishna Iyengar, who died leaving behind his only son Varada Iyengar. The said Varada Iyengar also died in April 1921 leaving behind his wife Chinnammal. The said Chinnammal exercising the power given to her by her husband, adopted a son by a deed of adoption dated 25.05.1924 (Ex.P5). The plaintiff is the son of Varada Iyengar @ Krishna Iyengar, viz., the adopted son of Chinnammal. He would claim a 1/2 share contending that Varada Iyengar @ Krishna Iyengar, had left behind four sons and a daughter, apart from his wife Alamelu Ammal. Of the four sons, one son viz., Srinivasa Vignesh pre-deceased his father unmarried. Another son's wife and daughters had executed a release deed, dated 26.11.1990 (Ex.P6). Therefore, according to the plaintiff, the entire property of Varadha Iyengar @ Krishna Iyengar (The adopted father) had devolved on himself and the defendant equally.
2.The suit was resisted by the defendant contending that the suit properties were the absolute properties of Varadha Iyengar @ Krishna Iyengar, since the deed of adoption itself confers such a right over him. It is the further http://www.judis.nic.in 3 contention of the first defendant that the said Varadha Iyengar @ Krishna Iyengar had executed a registered Will on 01.01.1948 bequeathing the properties to himself and Srinivasa Vignesh, the other son. It was also contended by the defendant that the plaintiff himself had executed an unregistered release deed relinquishing his right over the property and acknowledging the Will dated 01.01.1948 under Ex.P1, dated 30.01.1981. On the above pleadings, the defendant sought for dismissal of the suit.
3.On consideration of the above pleadings, the learned trial Judge, framed the following issues:-
(1) 1.1.1948 k; njjp tpUg;g[Wjpahtzk; rl;lg;go bry;yj;jf;fjpy;iyah? kw;Wk; thjpia fl;Lg;gLj;jhjh?
(2) ghfk; nfhu thjp rl;lg;go jilg;gl;Ls;shuh?
(3) thjpf;F ghfk; fpilf;fj;jf;fjh? vdpy; ve;j brhj;jpy; vt;tst[ ghfk;? (4) thjpf;F vd;d ghpfhuk; fpilf;fj;jf;fJ?
4.While answering the issue No.1, the learned trial Judge found that Ex.B10-Will has been proved in accordance with law and the same will bind the plaintiff. On the said findings, the learned trial Judge dismissed the suit filed by the plaintiff seeking a share in the properties. Aggrieved, the plaintiff had filed the above appeal. Pending appeal, it appears that pursuant to the contention http://www.judis.nic.in 4 raised by the learned counsel for the first respondent/plaintiff to the effect that Chellammal, D/o.Varada Iyengar @ Krishna Iyengar, is also a necessary party, an application was taken out by the appellant, to implead her and accordingly, she has been impleaded as second respondent.
5.I have heard Mr.H.Arumugam, learned counsel appearing for the appellant, Mr.S.Parthasarathy, learned Senior Counsel appearing for Mr.C.Ramesh, learned counsel for the first respondent and Mr.S.Satheesh Kumar, learned counsel appearing for the second respondent, viz., the newly impleaded daughter of Varadha Iyengar @ Krishna Iyengar.
6.Mr.H.Arumugam, learned counsel appearing for the appellant would submit that the trial Court erred in concluding the Will-Ex.B10, dated 01.01.1948 has been proved in accordance with law. He would also contend that the original Will has not been produced before the Court.
7.Per contra, Mr.S.Parthasarathy, learned Senior Counsel appearing for the first respondent/defendant would contend that the plaintiff himself has categorically admitted the execution of the Will while executing Ex.B1. It is also the further contention of the learned Senior Counsel that the plaintiff has given up his right over the properties of Varadha Iyengar @ Krishna Iyengar under http://www.judis.nic.in 5 Ex.B1, dated 30.01.1981.
8.Mr.S.Satheesh Kumar, learned counsel appearing for the second respondent would submit that the second respondent is willing to abide by the decision of this Court and if the Court finds that any share is allottable to her, she is prepared to take such share.
9.Upon hearing the arguments of the learned counsels, the following points are emerged for determination:-
(1) Whether the Will dated 01.01.1948 has been proved in accordance with law?
(2) What is the share the parties are entitled to? 1 0 .P o i n t N o . 1 :
10.1. The original Will dated 01.01.1948 is not marked as evidence. It is only the signatures of the testator and the attesting witnesses, that has been marked as Ex.B10 and Ex.B11. However, a registration copy of the Will has been marked as Ex.B12. The leaned trial Judge has found that the last page of the original Will is mutilated and therefore, the same could not be marked and the learned trial Judge would also conclude that since a registration copy of the original Will has been marked, the plaintiff cannot claim that the original Will http://www.judis.nic.in 6 has not been produced, inasmuch as it is an admitted case that the last page of the Will is mutilated. I do not find any illegality in the trial Court's observation regarding the admissibility of the certified copy of the Will, which is marked as Ex.B12.
10.2.The question is as to whether the defendant has proved the Will in the manner required under
Section 68 of the Indian Evidence Act, 1872. Section 63 of the Indian Succession Act, 1925 provides the requirements for execution of a valid Will and it reads as follows:
“63.E x e c u ti on o f u n privil e g e d Will s .- Every testator, not being a soldier employed in an expedition or engaged in actual warfare ( or an airman so employed or engaged), or a mariner at sea, shall exeecute his Will according to the following rules:-
(a)The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b)The signature or mark of the testator, or the signature of the persons signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c)The Will shall be attested by two or more witnesses, each of http://www.judis.nic.in whom has seen the testator sign or affix his mark to the Will or has 7 been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.” 10.3.
Section 68 of the Indian Evidence Act, provides for the manner in which a Will has to be proved and it reads as follows:-
“68.Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the http://www.judis.nic.in person by whom it purports to have been executed is specifically 8 denied.]” 10.4. A perusal of the above two provisions would make it clear that its incumbent upon the propounder of a Will to prove that a Will was executed and attested in the manner provided under Section 63 of the Indian Succession Act.
10.5.
Section 63 of the Act, provides that the attesting witness should have seen the testator signing or affixing his mark in the Will and the witnesses should have signed in the presence of the testator. Unless the above requirements set out in clause (C) of
Section 63 of the Act, are satisfied, the Court cannot uphold a Will.
10.6. D.Ws.2 and 3, who are the attesting witnesses of the Will had been examined. D.W.2 even in his chief examination, would depose as follows:-
“.... fhl;lg;gLk; Mtzj;jpy; 1 Kjy; 6 gf;fq;fspy; tp.tujIaq;fhh; vd;w fpU\;zIaq;fhh; vd;W ifnaOj;J fhzg;gLfpwJ. me;j ifnaOj;Jf;fs; thjp> gpujpthjpapd; jfg;gdhhpd;
ifnaOj;Jf;fsh vd;W Nfl;lhy; vdf;F njhpahJ. mth; ifnaOj;J Nghl;lij ehd; ghh;ff ; tpy;iy. ....” http://www.judis.nic.in 9 10.7. D.W.3 in his chief examination does not depose that he has seen the testator affixing his signature in the Will. He has, however, said that he does not know as to whether any other witness signed the Will. The following portion of the deposition of D.W.3 would relevant:-
“.... me;j gj;jpuj;jpy; mth; rhl;rp ifnaOj;J Nghlr; nrhy;yp ehd; Nghl;Nld;. vd;id jtpu NtW rhl;rpfs; ifnaOj;J Nghl;lhh;fsh vd;W Qhgfk; ,y;iy. ....” 10.8. The above evidence of the attesting witnesses, in my considered opinion, does not satisfy the legal requirements of Section 63 of the Indian Succession Act, and
Section 68 of the Indian Evidence Act. The trial Court has however upheld the Will on the basis of Ex.B1. The learned trial Judge has come to the conclusion that the plaintiff has, in Ex.B1 admitted the execution of the Will by his father. I am unable to concur with the conclusion of the trial Court.
Ex.B1 is an unregistered document and the purpose, for which the document came to be executed appears to be to safeguard the common properties from the creditors of the plaintiff. The following recitals in the document justify such a conclusion:-
“,dp ehd; NtW ahhplKk; fld;fs; thq;fkhl;Nld;. mg;gb VNjDk; fld; thq;fpdhy; jhq;fs; ,UtUf;Fk;> ehk; 3 Ngh;fSf;Fk;
cs;s ghft];jp Mfhj nrhj;Jf;fisAk; nghUl;gLj;jhJ vd;gjw;F thf;FWjp jUfpNwd;. ....” http://www.judis.nic.in 10 10.9. Apart from the above, the document refers to a Will of the year 1948 executed by the uncle of the father of the parties, that is the adoptive father of the Varadha Iyengar @ Krishna Iyengar. These recitals, in my considered opinion, cannot amount to admission of the Will. Even otherwise, examination of the attesting witness to prove a Will is mandatory, in view of the Proviso to
Section 68 of the Indian Succession Act, which has already been extracted.
10.10. The liability of the propounder to prove the Will in accordance with law does not depend on whether the execution of the Will is admitted or denied by the other side. Even if the execution of the Will is not denied, it is not for the propounder to satisfy the provisions of Section 63 of the Indian Succession Act, 1925 and
Section 68 of the Indian Evidence Act, 1872.
10.11. I have already extracted the depositions of D.Ws.2 and 3, who are the attesting witnesses. I find that the said evidence is wholly insufficient to conclude that the Will has been proved in the manner known to Law by the first respondent/defendant. The learned trial Judge has chosen to uphold the Will on the basis of the recitals in Ex.B1. The said conclusion is not in accordance with law and therefore, I unable to uphold the said finding of the trial Court with http://www.judis.nic.in 11 reference to the proof of the Will dated 01.01.1948. Hence, Point No.1 is answered in favour of the appellant and against the first respondent. 1 1 . P o i nt No. 2 :
11.1. Now, what is the share the parties to be entitled to, will have to be decided. Admittedly, the properties belonged to Krishna Iyengar, father of Varadha Iyengar. The said Varadha Iyengar had died in 1921 prior to coming into force of the Hindu Succession Act, 1956. His wife Chellammal has adopted Varadha Iyengar @ Krishna Iyengar under Ex.B5 on 25.05.1924. Therefore, the properties in the hands of the adopted son viz., Varadha Iyengar @ Krsihna Iyengar, were ancestral in nature. No doubt true that the said document viz., Ex.B5, dated 25.05.1924 reveals that the property will be held by adopted son viz., Varadha Iyengar @ Krishna Iyengar as his absolute properties. The said recitals cannot, in my considered opinion, change the character of the properties and once he begets sons, those sons will become coparceners along with him. Admittedly, Varadha Iyengar had died some time in 1956 leaving behind his wife Alamelu Ammal, three sons viz., V.Varadha Krishna Iyengar, the defendant, Rajagopal and Madhavan, the plaintiff, apart from a daughter Chellammal, who has been impleaded as second respondent. http://www.judis.nic.in 12 11.2. It is seen from the records that Srinivasa Vignesh, the second son of Varadha Iyengar had pre-deceased him as a bachelor. The wife and children of the other son Rajagopal had executed a release deed under Ex.B6 on 26.11.1990.
11.3. Though a faint attempt is made by the learned Senior Counsel appearing for the first respondent/defendant to contend that the first respondent had paid the entire consideration under the release deed, he does not press ahead the said contention, since he is well aware of the fact that the release deed by a coparcener or his heirs is deemed to be for the benefit of all the coparceners.
11.4. The other son Madhavan is the plaintiff and the daughter Chellammal has been impleaded as second respondent. On the death of Varadha Iyengar @ Krishna Iyengar, we have to presume a notional partition, in which, the deceased Varadha Iyengar @ Krishna Iyengar will get 1/3 share and the two sons viz., V.Varadha Krishna Iyengar, the defendant and Madhavan, the plaintiff will get 1/3 share each. On the death of Varadha Iyengar @ Krishna Iyengar, his share will devolve on his wife Alamelu Ammal, the two sons and the daughter, as 1/4 each, i.e. 1/4 of 1/3 = 1/12. The 1/12th share of Alamelu Ammal would again devolve on the two sons and the daughter. Therefore, the sons http://www.judis.nic.in 13 would get 1/3 + 1/9. The daughter/second respondent would get 1/9th share. The Point No.2 is answered accordingly.
11.5. For the forgoing reasons, the Appeal will stand allowed. The Judgment and decree of the trial Court are set aside. There will be a preliminary decree for partition granting 4/9th share to the plaintiff. The first respondent would be entitled 4/9th share and the second respondent, the daughter would be entitled to 1/9th share. Bearing in mind the relationship between the parties, there shall be no order as to costs.