Requirements for applicability of the section in awarding of exemplary costs.

This civil revision petition is directed against the order passed in I.A.No.365 of 1987 in O.S.No.169 of 1983 on the file of Principal Subordinate Judge, Madurai.

2. Short facts are: T.V.Seshaiyar had filed the suit against the first revision petitioner, now dead and Jawaharlal, the second revision petitioner on the foot of a mortgage and obtained preliminary decree. Then he filed application for passing of final decree. During the pendency of the final decree proceedings, T.V.Seshaiyar died. S.T.Subramanian, the respondent herein filed application for impleading himself as legal representative of deceased T.V.Seshaiyar on the ground that as per the will executed by T.V.Seshaiyar, he is entitled to collect the suit amount. This claim was resisted by the revision petitioners herein. After enquiry the learned Subordinate Judge had found that the disputed will was validly executed will, left by T.V.Seshaiyar and had impleaded the respondent herein as legal representative of T.V.Seshaiyar. The learned Subordinate Judge had also held that the objections taken by the revision petitioners herein are vexatious and had applied Sec.35-A of Code of Civil Procedure and awarded exemplary costs of Rs.2,000. Aggrieved by the said order, the respondents in the court below have come forward with this revision petition.

3. Mr.R.Srinivasan, the learned counsel appearing for the revision petitioners, would submit that the revision petitioners attack the Will on the following grounds:

1. The original Will was not produced and only certified copy of the will was produced.

2. The Will was not signed by the testator; but only his thumb impression was found in it and which gave rise to a bona fide suspicion with regard to the validity of the Will.

3. Only one attestor was examined.

4. The Will was registered at a place which is situated about 20 kilometres from the place of testator; where itself there is Registrar’s office. On those grounds, the objections taken by the revision petitioners are bona fide. The learned counsel would further submit that while so, the court below was wrong in concluding that the objections taken are vexatious and in awarding the exemplary costs. Per contra, Mr.P.Ananthakrishnan Nair the learned counsel appearing for the respondents, would submit that all the four grounds urged on behalf of the revision petitioners have been squarely met by the respondent herein and his objections for impleading the respondent as legal representative of deceased T.V.Seshaiyar are all vexatious and the court below was correct in ordering exemplary costs.

4. I have carefully considered the submissions made by the learned counsels. I shall first consider the objections taken by the revision petitioners in respect of the genuineness of the will. Regarding non-production of the original Will, Mr.Ananthakrishnan Nair would reply it by pointing out that evidence has been let in to the effect that original was produced in some other proceedings and steps were taken and in the other suit the court refused to return the original Will and that was why, the original Will could not be produced in this proceedings and there is valid explanation for the non-production. Regarding the attack that the testator had not signed, though he was a signatory, it has been pointed out that even in the will itself, he has stated that at that juncture he was unable to sign and affix his thumb impression. Thus, here again there is a valid and acceptable explanation. Regarding their objection that only one attestor was examined, as has been rightly pointed by Mr.Ananthakrishnan Nair, that for a Will it would suffice if one attestor is examined. There is no legal infirmity. Regarding the fourth objection that the Will was executed in Sub-Registrar’s Office, which is situated about 20 Km. from the residence of the testator, it has been pointed that one of the properties is situated within the jurisdiction of the Sub-Registrar in whose office it was regist