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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE RATNAM
M.S. Thanigachala Pillai - Appellant
Versus
Rukmani Ammal and Others - Respondent
Case No : Second Appeal No.2180 of 1980
Decided On : 07 March 1988
WILL - PROOF - SUCCESSION ACT, 1925 - SECTION 63(C) - EVIDENCE ACT, 1872 - SECTION 68 - ATTESTATION OF WILL - REQUIREMENTS - INTERPRETATION - SUFFICIENCY OF EVIDENCE TO ESTABLISH DUE EXECUTION OF WILL.
Fact of the Case:
The appellant challenged the validity of a settlement deed executed by his brother, Linga Pillai, in favor of the first respondent, claiming that Linga Pillai did not have a valid title to the suit properties as the Will under which he obtained the properties from Pattammal was not duly executed and attested as per the law.
Finding of the Court:
The court held that the first respondent had established the due execution of the Will by Pattammal in accordance with Section 63(c) of the Succession Act, 1925, and Section 68 of the Evidence Act, 1872. The court found that the evidence of one of the attesting witnesses, P.W. 3, who testified that he and the other attestor were present when Pattammal executed the Will and that they both signed as attestors, was sufficient to prove the valid execution of the Will.
Issues: 1. Whether the Will executed by Pattammal was duly executed and attested in accordance with the law. 2. Whether the first respondent had established a valid title to the suit properties through the settlement deed executed by Linga Pillai.
Ratio Decidendi: 1. The court interpreted Section 63(c) of the Succession Act, 1925, and Section 68 of the Evidence Act, 1872, and held that for a Will to be validly executed, it must be attested by two or more witnesses who have seen the testator sign or affix their mark, or have received a personal acknowledgment of the signature or mark from the testator. 2. The court found that the evidence of P.W. 3, the attesting witness, satisfied the requirements of Section 63(c) of the Succession Act, as he testified that he and the other attestor were present when Pattammal executed the Will and that they both signed as attestors. 3. The court held that the first respondent had established a valid title to the suit properties through the settlement deed executed by Linga Pillai, as Linga Pillai had obtained a valid title to the properties under the Will executed by Pattammal.
Final Decision: The court dismissed the second appeal filed by the appellant, upholding the lower courts' decision that the first respondent had a valid title to the suit properties and was entitled to recover possession of the same from the appellant and respondents 2 and 3.
The first defendant in O.S. 162 of 1976, District Munsif Court Sholinghur, is the appellant in this second appeal. That suit was instituted by the first respondent herein for a declaration of her title to the suit properties and for an injunction, or, in the alternative, for recovery of possession, against the appellant and respondents 2 and 3. The suit properties are two in number. The first respondent claimed title to the suit properties on the strength of a settlement deed executed by her brother, Linga Pillai, on 24-9-1971. According to the case of the first respondent, Linga Pillai was the absolute owner of the suit properties, having got them under a registered Will executed by one Pattammal on 15-4-1968. Pattammal, according to the first respondent, in turn obtained the suit properties under a partition deed dt. 21-10-1961 between the appellant, Pattammal and another. The further case of the first respondent was that the appellant had no manner of right or interest in the suit properties, but purported to execute sale deeds in favour of respondents 2 and 3 in respect of certain portions of the suit properties. Those sale deeds are not valid and binding on her, according to the first respondent. It was under these circumstances, the first respondent instituted the suit praying for the reliefs set out earlier.
2. Respondents 2 and 3 remained ex-parte. The appellant resisted the suit contending that Linga Pillai was not the owner of the suit properties and that he was not in possession and enjoyment of the properties at any time, that the settlement deed dt. 24-9-1971 is not true, that he sold certain properties to respondents 2 and 3 and that they had prescribed title by adverse possession. A plea was also raised that the suit is bad for non-joinder of parties.
3. Before the trial Court, on behalf of the first respondent Exs. A. 1 to A. 7 were filed and P.Ws. 1 to 3 were examined, while, on behalf of the appellant Ex.B 1 to B 12 were marked and the appellant gave evidence as D.W. 1. On a consideration of the oral as well as the documentary evidence, the learned District Munsif found that the settlement deed dt. 24-9-1971 is true, valid and binding on the appellant, that it had been acted upon, that the suit is not bad for non-joinder of parties, that the appellant had not perfected title to the suit properties by adverse possession and further that the respondents 2 and 3 are not bona fide purchasers for value. On those conclusions, a decree was granted in favour of the first respondent declaring her title to the suit properties and for recovery of possession of the same. Aggrieved by this the appellant preferred an appeal in A.S.256 of 1978, District Court, North Arcot at Vellore. The lower appellate Court concurred with the conclusions of the trial Court and dismissed the appeal. The appellant challenges in this second appeal the correctness of the same.
4. The finding arrived at by the lower appellate Court regarding the allotment of the suit properties to the share of Pattammal in the partition under Ex.A. 3 dt. 21-10-1961 between the appellant, Pattammal and another, was not challenged before this Court. Likewise, the execution of the settlement deed by Linga Pillai (P.W. 2) in favour of the first respondent under Ex.A.4 dt. 24-9-1971 was also not questioned by the appellant. The only contention urged by the learned counsel for the appellant is that though Pattammal had been allotted the suit properties under the partition arrangement Ex.A.3 dt. 21-10-1961 and Linga Pillai had under Ex. A. 4 dated 24-9-1971, settled the suit properties in favour of the first respondent herein, the title to the suit properties of Linga Pillai from Pattammal had not been made out under the will of Pattammal Ex.A.6, dt. 15-4-1968, as the Will had not been proved in the manner contemplated by law. In other words, the learned counsel submitted that the transmission of title to the suit properties from Pattammal to Linga Pillai un
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