Civil Revision Petitions challenging concurrent findings in succession proceedings regarding competing Wills. Court held that the lower courts' finding that the Will was duly attested and proved under Section 63(c) of the Indian Succession Act was correct, dismissing the petitions.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C.R.P(MD)Nos.2006 and 2007 of 2001
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 12.02.2024
CORAM :
THE HONOURABLE Mr. JUSTICE C.KUMARAPPAN
C.R.P(MD)Nos.2006 and 2007 of 2001
C.R.P(MD)No.2006 of 2001
Nagarathinammal(Died) 2.R.Sazhavendhan ... 1st respondent/Appellant/ Petitioner (2nd petitioner is brought on record as Lrs of the deceased 1st petitioner as per order dated 14.08.2007)
Vs. 1.Pichai @ Devarajan ...petitioner/1st Respt./ Respondent 2.Pichaiammal ... 2nd Respondent/2nd Respondent/Respondent
Prayer:This Civil Revision Petition is filed under Section 115 of Civil Procedure Code, against the order and decreetal order of the Principal District Judge, Thanjavur, dated 16.02.2001 made in C.M.A.No.23 of 1996 confirming the order and decreetal order dated 10.04.1996 of the Subordinate Judge's Court, Pattukkottai, made in S.O.P.No.39 of 1992.
C.R.P(MD)Nos.2006 and 2007 of 2001
For Petitioner : Mr.V.K.Vijayaragavan For R1 : Mr.S.Alagarsamy
C.R.P(MD)No.2007 of 2001
Nagarathinammal(Died) 2.R.Sazhavendhan
...1st petitioner/Appellant/ Petitioner
(2nd petitioner is brought on record as Lrs of the deceased 1st petitioner as per order dated 14.08.2007)
Vs.
1.Pichaiammal 2.Ganthimathi 3.Manickam 4.Gopalakrishnan 5.Natarajan ... Respondents 1to5/Respt. 1to5/Respts. 6.Shanmugam 7.Pichai @ Devarajan ...Respts.7&8/Respts.7&8/ Respondents
Prayer:This Civil Revision Petition is filed under Section 115 of Civil Procedure Code, against the order and decreetal order of the Principal District Judge, Thanjavur, dated 16.02.2001 made in C.M.A.No.47 of 1996 confirming the order and decreetal order of the Subordinate Judge's Court, Pattukkottai, made in S.O.P.No.40 of 1992 dated 10.04.1996.
For Petitioner : Mr.V.K.Vijayaragavan For R7 : Mr.S.Alagarsamy
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C.R.P(MD)Nos.2006 and 2007 of 2001
COMMON ORDER
Both the civil Revision petitions are arising against the common order passed in S.O.P.Nos.39 and 40 of 1992. Both the S.O.Ps are arising to get a succession certificate based upon two different Wills, which
were executed by one Pappaiyan.
2.S.O.P.No.39 of 1992 was filed by one Pitchai @ Devarajan,
based upon the Will dated 17.08.1984, which was marked as Ex.A.1 Similarly, the S.O.P.No.40 of 1992 was filed by the first wife of Pappaiyan viz., Nagarathinammal, based upon unregistered Will, dated 19.03.1992, which was marked as Ex.B.4. Therefore, the decision of S.O.Ps are which Will is last and true Will.
3.Both the S.O.Ps have taken together and orders have been passed jointly.
4.The said Pichai @ Devarajan (herein after called as first respondent) has contended that he was brought up by late Pappaiyan and he had been living all along with late Pappaiyan. Hence, out of love and
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C.R.P(MD)Nos.2006 and 2007 of 2001
affection, the said Pappaiyan has executed a Will, dated 17.02.1984. Whereas, the said Nagarathinammal, who is the first wife, (herein after called as the petitioner) has contended that the said Pappaiyan had also married one Pichaiammal. While so, out of love and affection has executed Ex.B.4 Will unregistered on 19.03.1992, bequeathing the property mentioned therein. It would also the contention of the petitioner that the first respondent was a greedy person and by undue influence and coercion, he obtained the Will from the late Pachaiappan.
5.Before the trial Court, on the side of the plaintiff, three witnesses were examined as P.W.1 to P.W.3. Fourteen documents were marked as Ex.A.1 to Ex.A.14. On the side of the defendants, four witnesses were examined as D.W.1 to D.W.4 and eight documents were marked as Ex.B.1 to Ex.B.8.
6.The trial Court, having considered the oral and documentary evidence, has disbelieved the case of the revision petitioner herein and held that the Will executed in favour of the first respondent/petitioner Pichai @ Devarajan, dated 07.02.1984 is a true and last Will. Aggrieved
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C.R.P(MD)Nos.2006 and 2007 of 2001
with the same, the petitioner has preferred Civil Miscellaneous Appeals. But the appellate Court has also confirmed the finding of the trial Court and dismissed both the appeals. Being not satisfied, the revision petitioner is before this Court by way of two different C.R.Ps.
7.Since both the C.R.Ps are arising out of a common order passed
in C.M.A.Nos.23 and 47 of 1996, this Court deem it appropriate to dispose both the C.R.Ps by way of common order.
8.The learned counsel for the revision petitioner would vehemently contend that Ex.A.1-Will dated 17.02.1984 has not been proved in the manner known to law, since the attestor has not spoken about the mandatory requirement under Section 63(c) of the Indian Succession Act. It was also the contention of the petitioner that there was no initiative taken by Pappaiyan to register the Will in favour of the first respondent/petitioner and that Ex.A.1-Will is the result and out come of the undue influence and coercion played by the first respondent/petitioner.
C.R.P(MD)Nos.2006 and 2007 of 2001
9.Per contra, the learned counsel for the first respondent/petitioner
would contend that Ex.A.1-Will is a natural one and it was a registered Will, whereas the Will stands in the name of the revision petitioner herein is a unregistered one and within two days of execution of the said Will, the Pappaiyan died on 21.03.1992, even the signature found in Ex.B.4-Will is differed and the lengthy recitals of the Will is unusual, which runs many pages. The learned counsel for the first respondent/petitioner would further contend that the said Pappaiyan had also executed Will even previously and that whenever the testator Pappaiyan has executed a Will previously, those Wills were registered and the Will contains only a limited pages. Therefore, by putting forth the above points the learned counsel would contend that there are numerous legitimate suspicious circumstances and the revision petitioner/respondent being the propounder of Will, has not dispelled those suspicious circumstances. The learned counsel would contend that both the Courts have traversed on suspicious circumstances and ultimately found that the Will executed in favour of revision petitioner has not been proved and the respondent has not dispelled the suspicious circumstance.
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C.R.P(MD)Nos.2006 and 2007 of 2001
10.It is pertinent to mention here that the instant challenge has been made under Article 227 of the Constitution of India, which is an extraordinary jurisdiction. Therefore, to invoke Article 227 of the Constitution of India, the existence of a another logical conclusion cannot be a ground to interfere with the findings recorded by the trial Court, unless it is perverse and such finding is based upon misreading of the evidence. This Court, while harmoniously cogitating the findings in the orders of both the Courts below, could not find any ground to interfere or to deviate from the said findings. To put it in other words no material has been placed before this Court to take a different view from the finding that Ex.B.4-Will has not been proved in the manner known to law.
11.Therefore, the point left to be answered is whether the first respondent/petitioner has proved Ex.A.1-Will, dated 17.02.1994 stands in his name. In respect of Ex.A.1-Will, the defence put-forth by the revision petitioner herein is that the propounder is not a legal heir of the deceased Pappaiyan and taking advantage of the ill-health of Pappaiyan, Ex.A.1-Will was obtained by way of undue influence and coercion. To
C.R.P(MD)Nos.2006 and 2007 of 2001
put it in other words, the signature found in Ex.A.1-Will is not challenged by the petitioner. But, it was only contended that the same was obtained by undue influence and coercion. However, the first respondent has examined the attestor viz., Marimuthu/P.W.2 and also examined Doctor as P.W.3 to speak about the sound disposing state of mind of late Pappaiyan while the examination of Ex.A.1-Will dated 17.02.1984.
12.It is the specific contention of the learned counsel for the revision petitioner that though the attestor was examined, the attestor has not deposed the mandatory procedure required under Section 63(c) of the Indian Succession Act. Though the demeanour of P.W.2 attestor's evidence was put on challenge, while seeing his evidence, he belongs to the very same political party, in which, the deceased Pappaiyan belongs. It is not in dispute that the said Pappaiyan was a popular person in the political party, which he was the member. Therefore, it would be quite natural that P.W.2 attestor could have attested the Will executed by the testator Pappaiyan through Ex.A.1.
C.R.P(MD)Nos.2006 and 2007 of 2001
13.Now the point is whether the above evidence is satisfying the parameters enunciated in the provision under Section 63(c) of the Indian Succession Act. For ready reference, this Court deems it appropriate to extract the chief examination given by the attestor/P.W.2:
“1984k; tUlk; Vw;gl;l capypy; ehDk; xU ghyRg;gpukzpak; vd;gtUk; rhl;rpf; ifbahg;gk; nghl;Ls;nshk;. k.rh.M.1y; ehd; 1MtJ rhl;rpahf ifbahg;gk; bra;Js;nshk;. k.rh.M.1y; 2tJ rhl;rp mg;bghJ
gl;Lfnfhl;ilapy; ,Ue;jhh;. ,g;bghGJ btspa{hpy; cs;shh;. ehd; rhl;rpf; ifbaGj;J nghl;lJ ghg;igaDf;Fk; ehq;fs; ifbaGj;J nghl;lJ ghg;igaDf;Fk; bjhpa[k;. capy; vGjpa bghGJk; ,g;bghGJk; ghh;j;jw;F Kd;dpl;L ghg;igad; ,we;jbghGJ ghh;j;njd.;”
14.According to Section 63(c) of the Indian Succession Act, the following instances has to be demonstrated:
(i) The Will should be attested by 2 or more persons.
(ii)Each of whom must have seen the testator sign and affix his
mark to the Will and
(iii) Each of the witnesses must have signed the Will in the presence of the testator.
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C.R.P(MD)Nos.2006 and 2007 of 2001
15.It is the contention of the learned counsel for the revision petitioner that while reading the evidence extracted herein above, such instances is not reflecting. Therefore, when the evidence of the testator is not manifesting the mandatory requirements as provided in Section 63(c) of the Indian Succession Act, through such evidence, the proof of Ex.A1 Will cannot be established. No doubt, the above evidence has not borrowed the actual words found under Section 63(c) of the Indian Succession Act. But, while harmoniously and carefully reading the same, the same reflect, resonates and reverberate the fulcrum of the mandatory requirement under Section 63(c) of the Indian Succession Act. Therefore, since because, the attestor while deposing has not borrowed the actual words as found in Section 63(c) of the Indian Succession Act, that does not mean that the evidence should be ignored. When the essence of Section 63(c) of Indian Succession Act, palpably manifest through the over all analysis of the P.W.2 attestor's oral evidence, then such evidence must be construed as the sufficient compliance under Section 63(c) of the Indian Succession Act.
C.R.P(MD)Nos.2006 and 2007 of 2001
16.Here while perusing the evidence, this Court satisfied with the findings recorded by both the Courts below about the compliance of Section 63(c) of the Indian Succession Act. In this regard, this Court deems it appropriate to refer the judgment of the learned Single Judge of this Court in W.Dhasaratha Rao and Ots.,-Vs-Heroji Rao and Ors. , reported in (1987)2MLJ 348 , wherein the learned Single Judge by following the judgment of the Hon'ble Supreme Court, in Naresa Charan-Vs-Parkash Charan , reported in MANU/SC/0113/1954 , has held that, depend upon the circumstances elicited in evidence, attestation can be inferred and attestation is a pure question of fact depending on appreciation of evidence.
17.In the above said judgment, the Hon'ble Supreme Court has held as follows:
“It cannot be laid down as a matter of law that because the witnesses did not state in examination-in-chief that they signed the Will in the presence of the testator, there was no due attestation. It will depend upon the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence.”
C.R.P(MD)Nos.2006 and 2007 of 2001
18.Based upon the ratio of the above judgment of the Hon'ble Supreme Court, this Court in W.Dhasaratha Rao case(cited supra), has found sequence of event would demonstrate the compliance of Section 63(c) of the Indian Succession Act. Therefore, this Court holds that the finding of fact recorded by both the Courts below that Ex.A.1-Will has been proved in the manner known to law is according to the available evidence and perfectly in order. The revision petitioner inspite her best effort could not bring any ground so as to deviate from the concurrent findings. Hence, the Civil Revision Petition is devoid of merits and liable to be dismissed.
19.In the result, both the Civil Revision Petitions are dismissed.
No costs.
12.02.2024
NCC:Yes/No Index:Yes/No Internet:Yes/No
C.R.P(MD)Nos.2006 and 2007 of 2001
To
C.R.P(MD)Nos.2006 and 2007 of 2001
C.KUMARAPPAN,J.
Ns
C.R.P(MD)Nos.2006 and 2007 of 2001
12.02.2024
2 issues framed by the court
Whether the attestation of the Will complies with Section 63(c) of the Indian Succession Act.
Whether the Will was executed under undue influence and coercion.
Colour shows how this judgement treated each authority
W.Dhasaratha Rao and Ors. Vs. Heroji Rao and Ors.Relied on¶16
(1987)2MLJ 348
Naresa Charan Vs. Parkash CharanFollowed¶17
MANU/SC/0113/1954
2 provisions across 2 enactments
Nagarathinammal (Died) / Lrs
R. Sazhavendhan
Pichai @ Devarajan
Pichaiammal
Ganthimathi
Manickam
C.KUMARAPPAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
