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High Court of Judicature at Madras
V. PERIYA KARUPPIAH, J.
Valliammal & Another
Versus
Sokkammal
S.A. NO. 529 OF 2005
Decided on : 26-03-2012
WILL - EXECUTION - PROOF - ATTESTATION - REQUIREMENTS - EVIDENCE ACT, SECTIONS 68, 69, 71 - TRANSFER OF PROPERTY ACT, SECTION 3 - SUCCESSION ACT, SECTION 63(C) - INTERPRETATION - APPLICATION - FACTS - HELD, (1) ATTESTATION OF A WILL IS A MANDATORY REQUIREMENT AND MUST BE PROVED BY EXAMINING AT LEAST ONE ATTESTING WITNESS. (2) IF THE ATTESTING WITNESSES ARE NOT AVAILABLE OR DEAD, THE EXECUTION OF THE WILL CAN BE PROVED BY OTHER EVIDENCE UNDER SECTION 71 OF THE EVIDENCE ACT. (3) THE EVIDENCE OF THE SCRIBE OF THE WILL CANNOT BE EQUATED TO THAT OF AN ATTESTING WITNESS UNLESS HE HAS SIGNED THE WILL WITH THE INTENTION TO ATTEST IT. (4) THE BURDEN OF PROOF LIES ON THE PROPOUNDERS OF THE WILL TO PROVE ITS DUE EXECUTION AND ATTESTATION.
Fact of the Case:
The plaintiff, claiming to be the wife of the deceased Chellapillai, filed a suit seeking a declaration that she was entitled to the suit property by virtue of succession, permanent injunction restraining the defendants from interfering with her peaceful possession and enjoyment of the suit property, and if necessary, recovery of possession of the suit property from the defendants. The defendants, who were the stepbrother and sister of the deceased Chellapillai, claimed title to the suit property under a settlement deed executed by the deceased in their favor and a registered Will bequeathing the property to the second defendant. The trial court dismissed the suit, holding that the settlement deed and the Will were proved by the defendants. However, the first appellate court reversed the trial court's decision, finding that the defendants had failed to prove the execution and attestation of the settlement deed and the Will in accordance with law.
Finding of the Court:
The High Court held that the first appellate court was correct in finding that the defendants had failed to discharge the burden of proof cast upon them to prove the due execution and attestation of the settlement deed and the Will. The court found that the defendants had not examined any attesting witness to prove the execution of the settlement deed, and that the evidence of the scribe of the Will could not be equated to that of an attesting witness. The court also held that the first appellate court erred in granting both a declaration and an order for recovery of possession in the decree, and modified the decree to grant only a declaration and a permanent injunction.
Issues: 1. Whether the defendants had discharged the burden of proof cast upon them to prove the due execution and attestation of the settlement deed and the Will. 2. Whether the first appellate court erred in granting both a declaration and an order for recovery of possession in the decree.
Ratio Decidendi: 1. The court held that the defendants had failed to discharge the burden of proof cast upon them to prove the due execution and attestation of the settlement deed and the Will. The court found that the defendants had not examined any attesting witness to prove the execution of the settlement deed, and that the evidence of the scribe of the Will could not be equated to that of an attesting witness. 2. The court held that the first appellate court erred in granting both a declaration and an order for recovery of possession in the decree, and modified the decree to grant only a declaration and a permanent injunction.
Final Decision: The High Court dismissed the second appeal, confirming the judgment and decree of the first appellate court, as modified by the High Court.
1. This appeal is directed against the judgment and decree passed by the First appellate court in A.S.No.25 of 2003 dated 03.04.2003, in reversing the judgment and decree passed by the trial Court made in O.S.No.415 of 1997 in dismissing the suit.
2. The appellants were the defendants and the respondent is the plaintiff before the trial Court.
3. The case of the plaintiff before the lower court are as follows:-
The suit property was in possession and enjoyment of the husband of the plaintiff Chellapillai, who is the son of Duraisamypillai. There is no issues for the plaintiff and Chellapillai. Both were residing in the Keel Edayalam village for some time and in Chennai for some time. They were in joint enjoyment of the suit property. The plaintiff alone is legally wedded wife of Chellapillai. On 26.05.1997, Chellapillai died intestate. There is no legal representatives for Chellapillai other than the plaintiff. Until the the death of Chellapillai, the suit properties were in enjoyment of Chellapillai. No one has any right in the suit property. Chellapillai neither executed any document regarding the suit property to anybody nor appointed any one as legal representatives. Therefore, the plaintiff is legally entitled to the suit property. The plaintiff was eking her livelihood from the income derived from the suit property. There is no other property or any other income for the plaintiff, except the income from the suit properties, for her livelihood. After the death of Chellapillai, the respondents tried to seize and alienate the suit property stating that they were the legal heirs of Chellapillai. When the same was questioned by the plaintiff, the respondents threatened the plaintiff stating that they were entitled to the suit property through a Settlement Deed and Will executed by Chellapillai and hence, they alone entitled to the suit property and the plaintiff has no right over the suit property. Since the defendants decided to alienate the suit property with the help of the documents fabricated by them, the plaintiff sent a legal notice on 18.06.1993 for which the defendants sent a reply notice on 12.07.1997 with false facts and allegations. The defendants are not in enjoyment of the suit property. Chellapillai had paid Tax for the suit property. Patta also stood in the name of Chellapillai. The 1st defendant cannot seek right over the suit property as the deceased Chellapillai was in possession and enjoyment of the suit property for more than 17 years and paid kist etc, and the alleged settlement deed did not come into force. Had any settlement deed, executed earlier, there would be no necessity for executing a Will later, that too without any date. The defendants have no right to enter into the suit property. There is no reply from the defendants for the rejoinder dated 19.07.1997, sent by the plaintiff. Hence, the suit.
4. The objections raised by the 1st defendant in her written statement and adopted by the 2nd defendant would be as follows:-
It is not true that all the suit properties belonged to Chellapillai. It is also not true that the plaintiff is in enjoyment of the suit property as the wife of Chellapillai. Some of the suit properties were acquired by Chellapillai and his brother Harikrishnan. The said Harikrishnan executed a settlement deed dated 25.09.1978 in favour of 2nd defendant bequeathing his properties. Since the brother of Chellapillai namely Harikrishnapillai was leading a wayward life, his wife , the 1st defendant was living separately. Before that, Chellapillai and his wife (the plaintiff herein) also lived separately. Chellapillai lived at Keel Edayalam and the plaintiff lived in Chennai. Chellapillai safeguarded the defendants family for more than 25 years and he was also living with the defendants. Chellapillai executed a settlement deed in respect of the items No.1 to 5 to the 1st defendant and the 1st defendant was in enjoyment of same. Chellapillai has also executed a registered W
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