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MADRAS HIGH COURT
JAGADISAN
Dhanapal Chettiar
Versus
Govindaraja Chetty and others
Second Appeal No. 317 of 1958 and A. A. O. No. 80 of 1958
Decided On : 19 July, 1960
WILLS - PRESUMPTION OF DUE EXECUTION - S. 90, EVIDENCE ACT - SCOPE AND APPLICABILITY - GENUINENESS OF WILL - MENTAL CAPACITY OF TESTATOR - PROOF - CIRCUMSTANCES TO BE CONSIDERED - AMENDMENT OF PLAINT - DISCRETION OF COURT - FACTORS TO BE CONSIDERED.
Fact of the Case:
The plaintiffs sued to recover possession of immovable properties, claiming to be the reversioners entitled to succeed to the estate of Namasivaya after the death of Ammayee Ammal, who, according to them, succeeded only to a limited estate. The first defendant resisted the suit on the ground that Namasivaya left a will making an absolute bequest of all his properties to Ammayee Ammal, who in turn executed a will in favor of the first defendant. Both wills were unregistered.
Finding of the Court:
The trial court held that the will of Namasivaya was genuine but the will of Ammayee Ammal was not. The District Judge concurred with the findings of the trial court and also allowed an amendment of the plaint to enable the plaintiffs to claim title to the properties as heirs of Ammayee Ammal if it was held that she had acquired the properties as an absolute bequest from her husband.
Issues: 1. Whether the presumption of due execution under S. 90 of the Evidence Act can be invoked in the present case? 2. Whether the evidence is sufficient to prove the mental capacity of the testator at the time of execution of the will? 3. Whether the amendment of the plaint was properly allowed? 4. Whether the trial court should go into the question of the validity of the alienations made by Ammayee Ammal during her lifetime?
Ratio Decidendi: 1. The presumption of due execution under S. 90 of the Evidence Act can be invoked in the present case as the will is more than 30 years old, produced from proper custody, and there are no circumstances to excite the suspicion of the court. 2. The evidence of one attesting witness, who testified that he saw the testator sign the will in his presence and that he attested the will in the presence of the testator, is sufficient to prove the mental capacity of the testator, especially in light of the presumption under S. 90. 3. The amendment of the plaint was properly allowed as it did not completely alter the structure and frame of the suit and it is permissible for the plaintiffs to set up as many roots of title as possible. 4. The trial court need not go into the question of the validity of the alienations made by Ammayee Ammal during her lifetime as her title to the properties has been upheld.
Final Decision: The second appeal is dismissed. The civil miscellaneous appeal is dismissed, subject to the modification that the trial court need not go into the question of the validity of the alienations made by Ammayee Ammal during her lifetime.
JUDGMENT :- The plaintiffs in O. S. No. 44 of 1954, on the file of the District Munsiffs Court, Triuvallur, sued to recover possession of immoveable properties described in the plaint schedules B to H. The suit properties originally belonged to one Namasivaya Chetti who died on 17-6-1920, leaving behind his widow Ammayco Animal. Animayee Animal died on 7-11-1953. The plaintiffs claim to be the reversioners entitled to succeed to the state of Namasivaya after the death of Ammayee Ammal who, according to them, succeeded only to a limited estate.
The relationship of the plaintiffs to the deceased Namasivaya is that they are the fathers brothers grandsons of Namasivaya. The 13th defendant in the suit is also related to Namasivaya in the same manner and in the same degree. The plaintiffs claimed that they along with the 13th defendant were entitled to succeed to the suit properties which, they alleged, belonged originally to Namasivaya and then devolved upon Ammayee Ammal as a limited heir under the Hindu law.
The first defendant in the suit is, also a Gnai or a sapinda of the late Namasivaya. He is Namasivayas fathers brothers sons grandson. He is one degree more remote in his relationship to Namasivaya than the plaintiffs and the 13th defendant. Ammayee Ammal effected certain alienations during her lifetime and they were Ex. B. 16, dated 7-7-1942, B. 17 dated 7-7-1942 and B. 20 dated 15-9-1945.
The properties described in E and F schedules attached to the plaint are the properties said to be comprised in the alienations effected by Ammayee Ammal. The first defendant resisted the suit on the ground that Namasivaya did not the intestate but left his last will and testament Ex. B. 1, dated 17-6-1920, under which he made an absolute bequest of all the properties belonging to him on the date of his death in favour of his wife Ammayee Ammal.
The properties forming the subject matter of the suit appear to be the later acquisitions made by Ammayee Ammal from and out of the assets left behind by Namasivaya. The first defendant further claimed that Ammayee Ammal in turn executed her last will and testament Ex. B. 1 in the case dated 15-12-1952. Both Ex, B. 11, the will of Namasivaya and Ex. B. 1, the will of Ammayee Ammal, are unregistered wills. These wills were set up by the first defendant as to non-suit the plaintiffs who could make a claim only if Namasivaya had died intestate.
It must also be mentioned that even during the lifetime of Ammaye Ammal, the first defendant effected certain alienations of the suit properties which are covered by Exs. B. 2 to B. 7 comprising the plaint C, D, G, H schedule properties in favour of the defendants 2, 3, 4, 6 and 7 though in any event he had absolutely no title to the properties at the time of the execution of the sale deeds. But, nevertheless, he alleged to have obtained the thumb impressions of the deceased Ammayee Ammal to these transactions.
2. At the trial of the suit, the main controversy between the parties centred round the genuineness of the two wills, Exs. B. 11 and B. 1. The plaintiffs impugned both the wills as being fabricated and brought about by the first defendant with ulterior motives to defeat their reversionary rights. The first defendant and some of the alienees, who sailed with him, took up the position that while both the wills were genuine and duly executed by the respective executants, the suit properties did note belong to the estate of Namasivaya but were the absolute properties of Ammayee Ammal whether she validly got a bequest from her husband of his estate or not.
The learned District Munsiff of Tiruvallur, who tried the suit held that Ex. B. 11, the will of Namasivaya was a genuine will but Ex. B, 1 the will of Ammayee Ammal was not a genuine will. He further held that the suit properties had not been established to belong to the estate of Namasivaya. In this view of the matter, he non-suited the plaintiffs completely.
3. There was an appeal by the aggrieved plaint
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