- (1.) THE grant of Succession Certificate is being challenged in this appeal. THE Will of one Gopi Pillai dated 26.8.1979 is the basis of these proceedings. Gopi Pillai had two children through his first wife who are the appellants herein and one son and three daughters through his second wife. THE son is the respondent herein. It is not in dispute that the first appellant herein was not well disposed towards his father Gopi Pillai. During Gopi Pillai's life time, the father and son fought several legal battles. Gopi Pillai died on 12.9.1988. It is the case of the 1st appellant that on 11.9.1988, he executed a Will, thereby revoking all previous Wills. THE respondent herein applied for grant of Succession Certificate in his favour on the basis of the Will dated 26.8.1979. This was granted by the Court below against which the present appeal has been filed.
(2.) MR. T.V. Ramanujam, learned Senior Counsel appearing for the appellant submitted that the Will must be attested by two or more witnesses in accordance with Section 63 of the Indian Succession Act and therefore, the Will can be used in evidence only by calling at least one of the attesting witnesses for proving its execution as per Section 68 of the Indian Evidence Act. The scribe who wrote the Will dated 26.8.1979 is one Udayar Pillai who was examined as R.W.2. He is also the scribe of the Will dated 11.9.1988 propounded by the appellants herein. Learned Senior Counsel would submit that it is his practice to maintain a ledger of the copies of all the documents that he has written. He also submitted that it is Udayar Pillai's evidence that the Will was handed over to him by Gopi Pillai in 1979 without affixing his signature directing him to obtain the witnesses' signature and that since he could not go, his assistant Mani obtained those signatures from the attesting witnesses. Therefore, the learned Senior Counsel would submit that the attestation is not in conformity with the provisions of Indian Succession Act. When the witnesses had attested the Will even before the testator had signed, it will not amount to attestation. Further, when the scribe of the Will had stated that the testator and the attesting witnesses had not signed at the same time and had not seen each other affixing their signatures, the conditions regarding attestation had not been satisfied. On the contrary, with regard to the second Will dated 11.9.1988, the said Udayar Pillai had clearly stated that he and the other attesting witness had signed in the presence of Gopi Pillai and Gopi Pillai had also signed in their presence and that he had also read the Will for 10 minutes. Therefore, according to the learned Senior Counsel, while the second Will had been properly executed and attested, the first Will was not, and therefore, Succession Certificate ought not to have been granted. He also referred to the evidence of R.W.3 Dr. Muthiah, who had been examined to show that Gopi Pillai was quite conscious on 11.9.1988, the date of the second will. According to the learned Senior Counsel, in contrast to the clear and cogent evidence regarding the execution and due attestation of the second Will, the Will of the year 1979 is evidently not properly attested. He also referred to the evidence of P.W.2., the attesting witness of the first Will. The learned Senior Counsel submitted that, when the attesting witness does not even know the manner in which his signature was obtained, it was not open to the Additional Subordinate Judge, Tirunelveli to accept the attestation as proper attestation. Mr. A. Sankara Subramanian, learned counsel for the respondent, on the other hand, submitted that the 1979 Will was a registered Will. It had been referred to by the testator in their proceedings and therefore, no further proof is required. Further, in earlier proceedings between the maternal grandfather of the appellants herein and Gopi Pillai, the respondent sought to be brought on record as the legal representative of Gopi Pillai on the basis of the Will. All these objections were raised at that time and it was held therein that the Will was genuine. The matter went up to Supreme Court and the Supreme Court did not interfere with the decision of this Court in the C.R.P. that Considering the objections already raised by the deceased Gopi Pillai and also the claim put forward by the first respondent herein that he is entitled to the property under the Will of his father and those properties are not trust properties, the impleading of the first respondent cannot be taken exception to. Therefore, according to the learned counsel, the appellants are trying to reagitate what has already been decided. He also submitted that the testator was admitted in hospital in a very critical condition and the evidence is that he was administered oxygen throughout 11.9.1988 and in those circumstances, it is unbelievable that he would have executed a Will on that day. It was also relevantly pointed out that the testator died on 12.9.1988. Learned counsel would submit that Udayar Pillai, the scribe, is a habitual forger of documents and therefore, his evidence should not be given any credence. There was another attesting witness to the second Will and he was allegedly a staff nurse, but this witness was not examined. It was also pointed out that when it is the case of the appellants that one Mani who is the assistant of Udayar Pillai was sent to obtain the signatures of the attesting witnesses, he should have been examined. The fact that he has not been examined throws a doubt on the truth of the case. The learned counsel also submitted that in the 1979 Will, the testator had clearly said that the 1st appellant should not perform his obsequies and it is a matter of record that after the death of the testator on 12.9.1988, it was only the respondent who performed the funeral rites and not the 1st appellant Therefore, this would also go to show that the first Will was alone the true Will and the second Will was fabricated. Learned counsel would therefore, submit that it was only on careful consideration of the materials on record that the Succession Certificate was granted and there was no reason to interfere with the same. Section 63 of the Indian Succession Act deals with execution of unprivileged Wills and Section 63(c) deals with attestation. It runs thus: "Section 63. Execution of unprivileged Wills. " Every testator, not being a soldier employed in an expedition nor 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) (b) (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 seen 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 t he same time, and no particular form of attestation shall be necessary ". The relevant provision in Indian Evidence Act is Section 68 which reads thus: "Proof of execution of documents 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 person by whom it purports to have been executed is specifically denied". The evidence of the attesting witness Dakshinamurthy in chief examination is as follows: Tamil In cross, he says thus: Tamil
(3.) OF course, he also says that he does not know in how many pages Gopi Pillai signed in the 1979 Will which is Ex.P3 and he also says that he does not know with which pen, he and Sivaraman Pillai, the other attesting witness signed. It must be remembered that in 1991 when this witness was examined, 13 years had lapsed since the date of the execution of the Will. So the inability of the witness to answer to this question is really not material. The statement made by this witness which was pointed out by the learned Senior Counsel for the appellants which is extracted above only means that the witness has no knowledge that Udayar Pillai sent an assistant to obtain his signature. That does not in any way dislodge what he has clearly stated in the chief examination regarding the manner of attestation. In fact, immediately after this sentence that has been extracted in the paragraph above, he states as follows: Tamil Therefore, it is clear that there had been two attesting witnesses who saw Gopi Pillai sign Ex.P3, the 1979 Will and who signed in each of their presence and in the presence of the testator. The Will not only sati sfies the requirements of Indian Sucession Act, but has also been received in evidence in accordance with the provisions of the Indian Evidence Act. In addition to this fact, we have other circumstances to demonstrate the truth and validity of this will. The deposition of Gopi Pillai, the testator in O.S. 135/81 was marked in evidence as Ex.P4 as the evidence of a deceased person. In this evidence, Gopi Pillai had stated that on 26.8.1979, he had executed a Will in favour of the respondent. This deposition is marked as Ex.P4. The order passed in I.A.335/88 in O.S. 53/84, which was a suit filed by the maternal grandfather of the appellants against Gopi Pillai was also marked as Ex.P2. This order was passed in the application filed by the respondent to bring himself on record as the legal representative of Gopi Pillai as per the 1979 Will. In this I.A., 17 documents were marked on the side of the respondent and 4 documents on the side of the appellants herein. The respondent and Dakshinamoorthy, who has deposed as P.W.2 in the present O.P., had given evidence as P.Ws. 1 and 2. Two Doctors and Udayar Pillai have given evidence on the side of the respondents namely the maternal grandfather of the appellant herein and others. In this, the learned judge disbelieved the evidence of Udayar Pillai holding that he is deliberately deposing that the attesting witnesses did not sign in the presence of Gopi Pillai, only to invalidate the 1979 Will. The learned judge also disbelieved the case of the respondents, that the 1979 Will was revoked by the subsequent Will dated 11.9.1988. He held that there is no evidence to show that Gopi Pillai was in a sound and disposing state of mind at the time of execution of the Will dated 11.9.1988. For all these reasons, the I.A. was ordered impleading the respondent as the legal representative and as stated earlier, this order was challenged both in this Court as well as Supreme Court without success. This order is not only relevant but is of persuasive value regarding the validity of 1979 Will. In 1956 Madras 566, it was held thus: A Will is one of the most solemn documents known to the law by which a dead man entrusts to the living by carrying out of his wishes, and as it is impossible that he can be called either to deny his signature to explain the circumstances in which it was executed, it is essential that trustworthy and effective evidence should be given to establish compliance with the necessary forms of law". ;