Tapuriah Jain & Associates

MADRAS HIGH COURT

SUGUMAL DURAISINGH VS. ANNAMANI AMMAL

DATED : 14.08.2009

Summarised Judgement (Scroll for Complete Judgement)

Introduction :

It is stated in the petition that the deceased Santhosa Devairrakka Nadar has resided in Sakkammalpuram Village (Servaikkaranmadam Post) and he passed away on 27.05.1992 at Kavalkadu Village. On 21.07.1988 the said Santhosa Devairrakka Nadar has executed the Will in question in favour of the petitioner in sound and disposing state of mind. He cancelled the earlier Will executed by him on 24.03.1982 in favour of his wife Balammal. The respondent has no right in the property bequeathed under the Will dated 21.07.1988. Under the said circumstances, for the purpose of getting probate to the Will dated 21.07.1988, the present petition has been filed.

Facts of the Case :

In the counter filed on the side of the respondent, it is stated that the deceased Santhosa Devairrakka Nadar and his wife Balammal have passed away without any issue. In the year 1962, both of them have adopted the respondent and since then the respondent has become their adopted son. The respondent is the son of the sister of the said Balammal. In the year 1982, the said Santhosa Devairrakka Nadar has lost his eyesight and the respondent has taken him to hospital for giving treatment and in the year 1985, he has lost his eyesight completely. On 17.10.1987 the said Balammal has passed away. After her demise, the said Santhosa Devairrakka Nadar has not executed any Will much less on 21.07.1988 in favour of the petitioner. The respondent is having absolute right over the properties alleged to have been bequeathed in favour of the petitioner under the Will dated 21.07.1988. There is no merit in the petition and the same deserves dismissal.

On the basis of the divergent contentions raised on either side, the trial Court has allowed the petition. Against the order passed by the trial Court, the present civil miscellaneous appeal has been preferred at the instance of the respondent as appellant.

Observation of Court :

In Ex.P2 it has been clearly mentioned that at the time of execution of the same, the executant has been residing in the family of the propounder of Ex.P2. It has already been pointed out in many places that a person is having unfettered right of disposing his properties. Further in the instant case no natural heirs or close relatives are in existence at the time of execution of Ex.P2 to the testator and therefore, the first and foremost point urged by the learned Counsel appearing for the appellant/respondent does not hold good.

The second point assorted by the learned Counsel appearing for the appellant/respondent is that the executant has not known the contents of Ex.P2. Even at the risk of repetition, the Court would like to point out that the specific evidence of PW1 is that before writing Ex.P2, he prepared a draft and the same has been read over to the testator and therefore, the second point also goes out without merit.

The third point urged by the learned Counsel appearing for the appellant/respondent is that the concerned Sub Registrar has not been examined. It has already been pointed out in many places that in the instant case, the concerned Sub-Registrar is not at all a necessary witness and his examination before the Court does not arise and therefore, the third point also goes out without merit.

The fourth point urged by the learned Counsel appearing for the appellant/respondent is that the propounder of the Will has also not been examined. As per the provision of Section 68 of the Indian Evidence Act, 1872 and also as per the provision of Section 63 of the Indian Succession Act, 1925 for the purpose of proving valid execution and attestation a particular Will one attesting witness has to be examined. In the instant case, two attesting witnesses have been examined and they adduced satisfactory evidence about the due execution and attestation of Ex.P2 and therefore, the examination of propounder of the Ex.P2, the disputed Will, does not arise and under the said circumstances, the fourth point urged on the side of the appellant/respondent also goes out without merit.

The fifth point urged by the learned Counsel appearing for the appellant/respondent is that the attesting witnesses have not adduced proper evidence. It has already been pointed out that the attesting witnesses viz., PWs. 2 & 3 have adduced the requisite evidence as per the provisions of the said Sections and therefore, the fifth point urged on the side of the appellant/respondent is also sans merit.

Viewing from any angle, all the suspicious circumstances raised on the side of the appellant/respondent are not real and genuine suspicious circumstances so as to come to a conclusion that Ex.P2 is nothing but a concoction.

Judgement :

The Court below, after evaluating the evidence available on record, has rightly come to the conclusion that the respondent/petitioner is entitled to get the reliefs sought for in the petition. In view of the foregoing elucidation of both the factual and legal aspects, this Court has not found even a flimsy ground to make interference with the well merited order passed by the Court below and altogether the present civil miscellaneous appeal deserves dismissal.

In fine, this civil miscellaneous appeal deserves dismissal and accordingly is dismissed with costs. The order passed in Probate Original Petition No. 82 of 1992 by the Subordinate Court, Tuticorin is confirmed.

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MADRAS HIGH COURT

SUGUMAL DURAISINGH VS. ANNAMANI AMMAL

DATED : 14.08.2009

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 14/08/2009

CORAM

THE HONOURABLE MR.JUSTICE A.SELVAM

Civil Miscellaneous Appeal No.213 of 1994

Sugumal Duraisingh                ... Appellant/Respondent

Vs.

Annamani Ammal                   ... Respondent/Petitioner

Civil miscellaneous appeal has been filed under Section 384 of the Indian Succession Act, against the order dated 09.12.1993 passed in Probate O.P.No.82 of 1992 by the Subordinate Court, Tuticorin.

For appellant      ... Mr.G.Prabhurajadurai for Mr.T.Selvakumaran

For respondent     ... Mr.S.S.Sundar for Mr.T.R.Rajaraman

JUDGMENT

Challenge in this civil miscellaneous appeal is to the order dated 09.12.1993 passed in Probate Original Petition No.82 of 1992 by the Subordinate Court, Tuticorin.

2.The respondent herein as petitioner has filed the petition in question on the file of the trial Court, praying to probate the Will dated 21.07.1988.

3.It is stated in the petition that the deceased Santhosa Devairrakka Nadar has resided in Sakkammalpuram Village (Servaikkaranmadam Post) and he passed away on 27.05.1992 at Kavalkadu Village. On 21.07.1988 the said Santhosa Devairrakka Nadar has executed the Will in question in favour of the petitioner in sound and disposing state of mind. He cancelled the earlier Will executed by him on 24.03.1982 in favour of his wife Balammal. The respondent has no right in the property bequeathed under the Will dated 21.07.1988. Under the said circumstances, for the purpose of getting probate to the Will dated 21.07.1988, the present petition has been filed.

4.In the counter filed on the side of the respondent, it is stated that the deceased Santhosa Devairrakka Nadar and his wife Balammal have passed away without any issue. In the year 1962, both of them have adopted the respondent and since then the respondent has become their adopted son. The respondent is the son of the sister of the said Balammal. In the year 1982, the said Santhosa Devairrakka Nadar has lost his eyesight and the respondent has taken him to hospital for giving treatment and in the year 1985, he has lost his eyesight completely. On 17.10.1987 the said Balammal has passed away. After her demise, the said Santhosa Devairrakka Nadar has not executed any Will much less on 21.07.1988 in favour of the petitioner. The respondent is having absolute right over the properties alleged to have been bequeathed in favour of the petitioner under the Will dated 21.07.1988. There is no merit in the petition and the same deserves dismissal.

5.On the basis of the divergent contentions raised on either side, the trial Court has allowed the petition. Against the order passed by the trial Court, the present civil miscellaneous appeal has been preferred at the instance of the respondent as appellant.

6.The sum and substance of the contention urged on the side of the respondent/petitioner is that the executant of the alleged Will dated 21.07.1988 has resided in Sakkammalpuram Village (Servaikkaranmadam Post) and he passed away on 27.05.1992 at Kavalkadu Village and before his demise on 21.07.1988 he has executed the Will in question in favour of the petitioner in sound and disposing state of mind and the respondent has had no right in the properties bequeathed under the said Will. Under the said circumstances, the present petition has been filed for getting the relief sought for therein.

7.It has been contended on the side of the appellant/respondent that in the year 1962 the respondent has been adopted by the executant viz., Santhosa Devairrakka Nadar and his wife Balammal and since then he has become their adopted son and in the year 1982, the executant lost his eyesight to certain extent and in the year 1985, he has attained cecity and after the demise of his wife, he has not executed any Will much less on 21.07.1988 in favour of the petitioner and therefore, the present petition deserves dismissal.

8.Before considering the various limbs of argument advanced by the learned counsel appearing for the appellant/respondent, the Court has to look into as to whether the respondent/petitioner has proved the due execution and attestation of the Will dated 21.07.1988.

9.The Will alleged to have been executed by the executant in favour of the petitioner has been marked as Ex.P2. At this juncture, it would be more useful to look into Section 68 of the Indian Evidence Act, 1872 and also Section 63 of the Indian Succession Act, 1925. Section 68 of the Indian Evidence Act, 1872 reads as follows;

"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 (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied."

10.From the cursory look of the provisions of the said Section, the Court can easily cull out the following aspects;

a)If a document is required by law to be attested, the same should be proved by way of examining one attesting witness and otherwise the same cannot be used as evidence.

b)If a document is registered under the provisions of the Indian Registration Act, 1908 (XVI of 1908) and its execution is specifically denied, one attesting witness must be examined.

11.Section 63 of the Indian Succession Act (Act XXXIX of 1925) reads as follows;

"Execution of unprivileged Wills.- 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 execute 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 person 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 whom has seen the testator sign or affix his mark to the Will or has 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 acknowledgment 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."

12.The provision of the said Section can be vivisected as follows;

a)In every Will, the concerned testator should sign or affix his mark or it shall be signed by some other person in his presence and that too by his direction.

b)The signature or mark of the testator or the signature of the person signing for him should appear to give effect to the writing as a Will.

c)The Will concerned should be attested by two or more witnesses.

d)Each witness must see the sign or mark of the testator.

e)Each witness should sign in the presence of the testator.

f)No particular form of attestation is necessary.

13.With the aforesaid legal backdrops, the Court has to look into the case of the respondent/petitioner.

14.As stated earlier, the Will alleged to have been executed by the testator viz., Santhosa Devairrakka Nadar has been marked as Ex.P2. The scribe of Ex.P2, by name S.Sugunaraj has been examined as PW1. He has stated in his evidence that on 21.07.1988, the testator has directed him to execute the Will in question and he prepared a draft and after reading the same, the testator has directed him to prepare the original Will and the same has been marked as Ex.P2.

15.One of the attestors by name Thangavel Nadar has been examined as PW2. He has stated in his evidence that the testator has executed the Will in question and he put his thumb impression and the same has been seen by him and other attesting witness (PW3) and further he and other attesting witness have put their signatures and the same has also been seen by the testator.

16.The other attesting witness by name Vellapandi has been examined as PW3. He has stated in his evidence that the Will in question has been executed by the testator and he put his thumb impression and the same has been seen by him and other attesting witness (PW2) and both of them have put their signatures and the same has also been seen by the testator.

17.As per the provision of Section 68 of the Indian Evidence Act, 1872, for the purpose of proving the execution of a document, one attestor has to be examined. In the instant case, two attestors viz., PWs.2 & 3 have given cogent, consistent and trustworthy evidence so as to prove the due execution as well as attestation of Ex.P2, the Will in question. Since PWs.2 & 3 have given requisite evidence as per the provision of Section 68 of the said Act, the Court can unflinchingly come to a conclusion that on the side of the petitioner, the due execution as well as attestation of Ex.P2 have been legally proved.

18.The learned counsel appearing for the appellant/respondent has marshalled the following aspects as suspicious circumstances in the present case:

a)In Ex.P2 sufficient reasons have not been assigned so as to exclude the other relatives of the executant.

b)The executant has not known the contents of Ex.P2

c)The Sub-Registrar has not been examined.

d)The propounder of the Will has also not been examined.

e)The attesting witnesses have not adduced proper evidence.

19.In support of the alleged suspicious circumstances, the learned counsel appearing for the appellant/respondent has accentuated the Court to look into the following decisions:

a)In 1977 (1) Supreme Court Cases 369 (Jaswant Kaur Vs. Amrit Kaur and others) the Honourable Apex Court has held that the cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will.

It is an acknowledged principle of law that each decision must be applied according to the facts and circumstances of the given case. In the instant case, it is an admitted fact that the wife of the testator of Ex.P2, the Will in dispute, has already passed away and both of them have not been blessed with any issue. In Ex.P2, it has been clearly mentioned that at the time of execution of the same, the testator resided in the family of the petitioner and under the said circumstances, he has executed Ex.P2 and further no kindred relative is available to the testator at the time of execution of Ex.P2.

In the decision referred to above, it is clearly stated that one of the co-wives of the owner of the property has filed the suit in question for maintenance and alternatively for partition of her one-half share. After lapse of 2. years, the defendant therein has introduced the Will in question alleged to have been executed by the owner of the property. Under the said circumstances, the Honourable Apex Court has held that the Will has come into existence under suspicious circumstances. Therefore, it is quite clear that the facts available in the present case are not identical to the facts of the decision referred to above and therefore, the same cannot be applied in the present case.

b)In 1990 (1) Supreme Court Cases 266 (Kalyan Singh, London Trained Cutter, Johri Bazar, Jaipur Vs. Chhoti and others) the Honourable Apex Court has held that it would be open to the Court to consider the circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the Court to look into the surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.

The facts of the case relating to the decision mentioned supra are that the concern testator has executed the Will in question in favour of the plaintiff as a sole legatee with no right whatever with the testator's wife. Since no property has been given in favour of the wife of testator, the Honourable Apex Court has come to a conclusion that a serious doubt on the genuineness of the Will has arisen. Further the Will in question has not been produced either before the Court or any public authorities even though there were occasions to produce it for asserting the plaintiff's title to the property. Under the said circumstances, the Honourable Apex Court has held that the Will in question has come into existence under suspicious circumstances and the said circumstances are not existed in the present case.

As stated earlier, at the time of executing Ex.P2, the disputed Will, the testator has had no close relative and further he resided in the house of the petition and under the said circumstances, Ex.P2 has come into existence and therefore, the facts and circumstances of the present case are not suitable to the facts and circumstances of the case mentioned in the decision referred to supra.

c)In 2006 (9) Supreme Court Cases 515 (Joseph Antony Lazarus (dead) by LRs. Vs. A.J.Francis) the Honourable Apex Court has held that non-mention in the Will about other sons of testatrix while bequeathing the entire property to two sons alone would lead a genuine suspicious circumstances and further non- examination of Advocate who drafted the Will and Sub-Register before whom the Will was presented for registration also leads to suspicious circumstances.

The facts of the case mentioned in the decision are that the Will in question has been executed in favour of two sons of testatrix and no mention has been made with regard to other sons. Under the said circumstances, the Honourable Apex Court has come to the conclusion that the non-mention in the Will about other sons as well as non-examination of the Advocate who drafted the Will and the Sub-registrar who registered the same would lead to suspicious circumstances.

In the instant case, as noted down in many places, the testator has had no close relative at the time of executing Ex.P2 and further he and his wife have not been blessed with any direct issue and therefore, the circumstances which led to the testator for executing Ex.P2 are totally different from the circumstances mentioned in the decision referred to supra and therefore, the decision mentioned supra cannot be attuned in the present case.

d)In 2007 (7) Supreme Court Cases 225 (Aplone D' Souza VS. John D'Souza) wherein the Honourable Apex Court has held that no evidence to show that the contents of the Will have been read over and explained to the testatrix which leads to suspicious circumstances.

In the instant case, the Scribe (PW1) of Ex.P2 has clearly stated in his evidence that before writing Ex.P2, he prepared a draft and the same has been read over to the testator. Since the aforesaid evidence is available in the present case and since the other suspicious circumstances mentioned in the above decision are not in existence in the present case, it is needless to say that the dictum found in the decision referred to supra is not suitable to the facts and circumstances of the present case.

e)In 2007 (7) Supreme Court Cases 91 (Adivekka and others Vs. Hanamavva Kom Venkatesh (dead) by LRs. and another) The Honourable Apex Court has held that non-examination of the propounder also creates suspicious circumstances and due to that adverse inference can be drawn.

The facts of the case mentioned in the above decision are that the testator is the owner of the disputed land and the respondent is his niece. The testator has suffered from cancer and ultimately passed away. A few days prior to his death, he allegedly executed the Will in dispute in favour of the respondent. The appellants are the wife and children of the testator's and they filed the suit in question challenging the disputed Will as a fabricated document. The respondent has not examined herself, but examine her husband in whose favour she has executed a power of attorney. The concerned attesting witness has been examined, however he failed to say as to who has asked him to come to Registrar Office for attestation. The concerned Registrar has been examined as defence witness and he has not stated that the contents of the Will have been read over and explained to the testator. Further on the side of the plaintiff, evidence has been adduced to the effect that the testator has suffered from throat cancer and he has also lost his thinking capacity. Under the said circumstances, the Honourable Apex Court has come to the conclusion that non-examination of propounder of the Will in question would lead to suspicious circumstances and also lead to take adverse inference.

In the case on hand no such circumstances are in existence. As stated in the genesis of this judgment, two attesting witnesses have been examined for the purpose of proving the due execution and attestation of Ex.P2 as contemplated under Sections 68 of the Indian Evidence Act, 1872 and also under Section 63 of the Indian Succession Act, 1925. Therefore, it is quite clear that the facts mentioned in the decision referred to supra, are not identical to the facts of the present case.

f)In 1998 (4) Supreme Court Cases 384 (Gurdial Kaur and others Vs. Katrar Kaur and others) the Honourable Apex Court has held that the scribe of the Will in dispute has deposed that he has not known the executant of the Will and some of the natural heirs have been disinherited in the Will without any reason and therefore, suspicious circumstances have arisen.

In the instant case, no such circumstances are in existence and therefore, the dictum given by the Honourable Apex Court in the above decision is not applicable to the present case.

20.In order to repel the argument advanced by the learned counsel appearing for the appellant/ respondent as well as the decisions accited by him, the learned counsel appearing for the respondent/petitioner has also relied upon the following decisions.

a)In 2000 (3) Law Weekly 409 (Rabi Vs. Jasu Leela) the Division Bench of this Court has held as follows;

"Under Section 32 of the Indian Succession Act, the property of an intestate devolves upon the wife or husband, or upon those who are of the kindred of the deceased, in the order and according to the rules thereinafter contained in the chapter. As per Section 47 where the intestate has left neither lineal descendant nor father nor mother, the property shall be divided equally between his brothers and sisters and the child or children of such of them as many have died before him. Here the parties are Christians. Under the Hindu Law, an adopted son is entitled to inherit ancestral property. Such adoptions are governed by either customary law or by the provision contained in the Hindu Adoptions and Maintenance Act, 1956. Under Hindu Succession Act, an adopted son is treated as natural son for the purpose of succession of ancestral property whereas under Indian Succession Act, an adopted son is not treated on par with natural son and he will not inherit the property of the parents by interestate succession."

In the instant case, the specific contention of the appellant/respondent is that in the year 1962 the testator and his wife have adopted him and since then he has become their adopted son. But the learned counsel appearing for the appellant/respondent has not stressed the alleged adoption. Since the learned counsel appearing for the appellant/respondent has not stressed the alleged adoption and since the specific dictum given by the Division Bench of this Court to the effect that an adopted son under Indian Succession Act cannot claim any property right on par with the adopted son under the Hindu Succession Act, it is needless to say that the appellant/respondent cannot claim any right over the property of the testator on the basis of his alleged adoption.

b)In AIR 1995 Supreme Court 2086 (Vrindavanibai Sambhaji Mane Vs. Ramachandra Vithal Ganeshkar and others) the Honourable Apex Court has held that as follows;

"There is also a large body of case law about what are suspicious circumstances surrounding the execution of a Will which require the propounder to explain them to the satisfaction of the Court before the Will can be accepted as genuine. A Will has to be proved like any other document except for the fact that it has to be proved after the death of the testator. Hence, the person executing the document is not there to give testimony. The propounder, in the absence of any suspicious circumstances surrounding the execution of the Will, is required to prove the testamentary capacity and the signature of the testator. Some of the suspicious circumstances of which the Court has taken note are (1) The propounder taking a prominent part in the execution of a Will which confers substantial benefits on him; (2)Shaky signature; (3)A feeble mind which is likely to be influenced; (4)Unfair and unjust disposal of property. Suffice it to say that no such circumstances are present here."

In the instant case also, it has been clearly stated in Ex.P2 that the testator knows reading and writing at the time of execution of Ex.P2, but due to his old age, he put his thumb impression on it. Further no evidence is available to prove that the testator has possessed of feeble mind at the time of execution of Ex.P2 and therefore, it is needless to say that the circumstances mentioned in the decision referred to supra which led to suspicious circumstances are not existed in the present case.

c)In AIR 1995 Supreme Court 1852 (PPK Gopalan Nambiar Vs. Balakrishnan Nambiar and others) the Honoruable Apex Court has held that there must be real, germane and valid suspicious features and not fantasy of the doubting mind.

In the instant case, the aspects curved out by the learned counsel appearing for the appellant/respondent to pave the way for alleged suspicious circumstances are not effective and real. Therefore, the same cannot be accepted.

d)In 2007 (1) Supreme Court Cases 546 (Gurdev Kaur and others Vs. Kaki and others) the Honourable Apex Court has held that the Court does not say in appeal over the right or wrong of the testator's decision. The Court's role is limited to examining whether the instrument propounded as the last Will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last Will that the Court looks into the nature of the bequest.

It has already been pointed out that the attestation of Ex.P2 have been clearly and satisfactorily proved by the evidence of PWs.2 & 3. The only attack made on the evidence of PWs.2 & 3 is that their evidence are quite unnatural. In fact, this Court has scanned their entire evidence with utmost care and caution, and ultimately found that some questions have been directly put to them about due execution and attestation of Ex.P2 and both of them have clearly and uniformly answered about the execution and attestation of Ex.P2. As per the dictum given by the Honourable Apex Court, the role of the Court is very very limited to the extent as to whether the instrument in question is the last Will of the deceased or not.

In the instant case, it has already been stated in many places that PWs.2 & 3 have clearly proved the due execution and attestation of Ex.P2 and viewing from any angle their testimonies cannot be discarded, simply thinking that the same are quite unnatural.

e)In 1996 (II) CTC 466 (T.Kanniah Rao Vs. Inder Rao) this Court has held that if attesting witnesses have not spoken about the valid execution and attestation of the Will in question, the Sub Registrar before whom the same has been presented has to be treated as attesting witness.

In the instant case, as pointed out earlier, the two attesting witnesses viz., PWs.2 & 3 have given cogent and trustworthy evidence about the due execution and attestation of Ex.P2. Therefore, the question of examining the Sub-Registrar who registered Ex.P2 does not arise.

f)In 2001(1) CTC 708 (Valliammal Vs. S.Arumugha Gounder and another) wherein at paragraph 17 this Court has held as follows;

"It stands to common sense and reason that the truth and validity of the Will normally will be challenged only by those persons who are the legal heirs of the testators and who would have succeeded to the properties of the testator but for the Will. Only when such contentions are raised by persons who would have otherwise succeeded to the property, the Court will naturally go in detail whether the propounder has dispelled all the suspicious circumstances surrounding the execution of the will. On other cases when a third party stranger like the first defendant makes a passing reference in his defence with regard to the truth and validity and the mental status of the testator at the time of making of the Will, the Court must satisfy itself by examining the attestors because as per the Hindu Succession Act and the Indian Evidence Act, Will is a document by law required to the proved by, atleast by examining one of the two attestors. The Hindu Succession Act also makes it mandatory that Will must be attested by atleast two persons. The Evidence Act provides that for the purpose of proving the document which the law requires to be attested by two witnesses, atleast one has to be examined to prove the execution of the said document. 

The plaintiff has taken the trouble of examining the two attestors to the will. Both the trial Court and the Appellate Court have chooses to consider the evidence and the Appellate Court has come to the conclusion that the plaintiff has not dispelled all suspicious circumstances surrounding the Will executed by late Muthusamy Gounder. There is absolutely no basis for coming to such a conclusion because none of the legal heirs of Muthusamy Gounder have questioned the genuineness of the Will. Therefore, it is rightly contended by the learned counsel for the appellant that the lower appellate Court must have taken that Ex.A8, Will has been properly proved. This is more so when the trial Court after considering the evidence adduced has come to alright conclusion that Ex.A8, Will has been executed by Muthusamy Gounder while he was in sound and disposing state of mind. Therefore, the findings of the lower Appellate Court that Ex.A8, Will has not been proved to be true or genuine cannot be supported."

The specific contention of the appellant/ respondent is that he is an adopted son of the testator and his wife. But as per the decision reported in 2000 (3) Law Weekly 409 (Rabi Vs. Jasu Leela) rendered by the Division Bench of this Court, the present appellant/respondent is not at all entitled to succeed the properties of the testator as his adopted son. Therefore, it is quite clear that the appellant/respondent has had no chance of succeeding the properties of the testator and under the said circumstances, he has been totally debarred from questioning the validity of Ex.P2.

g)In 1999 (III) CTC 378 (R.Vasanthi Vs. Janaki Devi and others) this Court has held that the registration of a Will may having regard to circumstances prove its genuineness.

In the instant case, Ex.P2 has been executed on 21.07.1988 and the same has been registered on 06.10.1988 and therefore, as per the dictum given by this Court, the registration itself has also proved its genuineness.

h)In 2003 (8) Supreme Court Cases 537 (Ramabai Padamakar Patil (dead) through LRs. and others Vs. Rukminibai Vishnu Vekhande and others) the Honourable Apex Court has held that if one of the attesting witnesses is examined as per the provision of Section 63 of the Indian Succession Act, 1925 and no infirmity found in his testimony, non-examination of the person who has typed the Will or the advocate who has been present at the time of preparation or registration of the Will, cannot be a ground to discard the same.

As adverted to earlier, one of the aspects assorted by the learned counsel appearing for the appellant/respondent is that the concerned Sub- Registrar has not been examined. In the present case, replete evidence are available through PWs.2 & 3 so as to prove the valid execution and attestation of Ex.P2. Under the said circumstances, the question of examining the concerned Sub-Registrar does not arise as per the decision referred to above.

i)In AIR 1995 Supreme Court 1684 (Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee (dead) by L.Rs and others) the Honourable Apex Court has held that debarring natural heirs should not raise any suspicion with regard to execution of the Will in dispute.

In the instant case, no such legal heirs are in existence at the time of executing Ex.P2 and further as per the dictum of the Honourable Apex Court even if natural heirs have been debarred in a particular Will, the same cannot be a ground for having suspicion and further every person is having unfettered right in disposing his property as he likes and no quarantine can be imposed. In short, he or she can dispose of his or her property in favour of anybody as he or she likes.

j)In 2007 (11) Supreme Court Cases 621 (Savithri and others Vs. Karthyayani Amma and others) the Honourable Apex Court has held that the natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be suspicious circumstances.

As pointed out earlier, every person is having independent right of disposing his property as he likes and no interdiction can be imposed against his desire and further in the instant case, no natural heir is in existence at the time of execution of Ex.P2.

21.Now the Court would like to have a glimpse over the alleged suspicious circumstances marshalled by the learned counsel appearing for the appellant/ respondent. The first and foremost point is that in Ex.P2 sufficient reasons have not been assigned so as to exclude the other relative of the executant.

22.In Ex.P2 it has been clearly mentioned that at the time of execution of the same, the executant has been residing in the family of the propounder of Ex.P2. It has already been pointed out in many places that a person is having unfettered right of disposing his properties. Further in the instant case no natural heirs or close relatives are in existence at the time of execution of Ex.P2 to the testator and therefore, the first and foremost point urged by the learned counsel appearing for the appellant/respondent does not hold good.

23.The second point assorted by the learned counsel appearing for the appellant/respondent is that the executant has not known the contents of Ex.P2. Even at the risk of repetition, the Court would like to point out that the specific evidence of PW1 is that before writing Ex.P2, he prepared a draft and the same has been read over to the testator and therefore, the second point also goes out without merit.

24.The third point urged by the learned counsel appearing for the appellant/respondent is that the concerned Sub Registrar has not been examined. It has already been pointed out in many places that in the instant case, the concerned Sub-Registrar is not at all a necessary witness and his examination before the Court does not arise and therefore, the third point also goes out without merit.

25.The fourth point urged by the learned counsel appearing for the appellant/respondent is that the propounder of the Will has also not been examined. As per the provision of Section 68 of the Indian Evidence Act, 1872 and also as per the provision of Section 63 of the Indian Succession Act, 1925 for the purpose of proving valid execution and attestation a particular Will one attesting witness has to be examined. In the instant case, two attesting witnesses have been examined and they adduced satisfactory evidence about the due execution and attestation of Ex.P2 and therefore, the examination of propounder of the Ex.P2, the disputed Will, does not arise and under the said circumstances, the fourth point urged on the side of the appellant/respondent also goes out without merit.

26.The fifth point urged by the learned counsel appearing for the appellant/respondent is that the attesting witnesses have not adduced proper evidence. It has already been pointed out that the attesting witnesses viz., PWs.2 & 3 have adduced the requisite evidence as per the provisions of the said Sections and therefore, the fifth point urged on the side of the appellant/respondent is also sans merit.

27.Viewing from any angle, all the suspicious circumstances raised on the side of the appellant/respondent are not real and genuine suspicious circumstances so as to come to a conclusion that Ex.P2 is nothing but a concoction.

28.The Court below, after evaluating the evidence available on record, has rightly come to the conclusion that the respondent/petitioner is entitled to get the reliefs sought for in the petition. In view of the foregoing elucidation of both the factual and legal aspects, this Court has not found even a flimsy ground to make interference with the well merited order passed by the Court below and altogether the present civil miscellaneous appeal deserves dismissal.

29.In fine, this civil miscellaneous appeal deserves dismissal and accordingly is dismissed with costs. The order passed in Probate Original Petition No.82 of 1992 by the Subordinate Court, Tuticorin is confirmed.