IN THE HIGH COURT OF JUDICATURE AT MADRAS

Date: 29.3.2012

Coram

The Hon’ble Mr.Justice R.S.RAMANATHAN

Second Appeal No.313 of 2010

M.Deenadayalan ..Appellant/6th Defendant

vs.

1. Saroja Ammal
2. M.Nallathambi
3. M.Dharmalingam
4. M.Balasubramanian
5. M.Ramasamy
6. M.Anbazhagan
7. Prabavathi
8. Sargunam
9. Jothi
10. Vajjravel
11. Dhanalakshmi
12. Vasantha
13. Prema
14. Varadambal
15. V.Soundarapandian
16. V.Chandrasekaran ..Respondents/Plaintiff &
Defendants 1 to 5 & 8 to 17

For appellant : Mr.S.V.Jayaraman, Senior Counsel for

Ms.P.Saritha

For R1 : Ms.Bhargavi Sundarrajan

Prayer:- Second Appeal against the judgment and decree 23.12.2009 in

A.S.No.26 of 2008 on the file of the Principal Subordinate Judge,
Krishnagiri confirming the judgment and decree dated 30.6.2008 made
in O.S.No.25 of 2004 on the file of the District Munsif cum Judicial
Magistrate, Uthangarai.

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 JUDGMENT

The sixth defendant is the appellant.

2. The first respondent herein filed O.S.No.25 of 2004 on the

file of the Sub Court, Krishnagiri for declaration of her title to
the suit properties and for injunction on the basis of the Will dated
15.7.1992 alleged to have been executed by her alleged husband
Che.Munisamy Chettiar. The sixth defendant, the appellant herein and
other defendants contested the suit stating that the first
respondent/plaintiff was not the legally wedded wife of their father
Che.Munisamy Chettiar and the first respondent/plaintiff was the wife
of Marimuthu Gounder and she got two daughters through him and she
also admitted in other proceedings that she was the widow of
Marimuthu Gounder and therefore, she cannot claim the status of the
widow of Che.Munisamy Chettiar. They further contended that the
alleged Will dated 15.7.1992 was not executed by their father and it
was a forged document and the testator was not in a sound and
disposing state of mind to execute the said document and there are
various suspicious circumstances surrounding the document.

3. The Trial Court held that having regard to the long

cohabitation between Munisamy Chettiar and the first respondent and
the fact that the first respondent was admittedly living with
Munisamy Chettiar for more than twenty years, led to the presumption
that she was the wife of Munisamy Chettiar and the Will was proved in
the manner known to law and one of the attesting witnesses was
examined to prove the due execution of the Will and the Will was also
a registered one and the first respondent/plaintiff also proved that
subsequent to the execution of the Will, the testator Munisamy
Chettiar executed sale deeds in favour of P.Ws.4 to 6 and Munisamy
Chettiar died four years later and therefore, the Will was a genuine
one and the first respondent/plaintiff got title to the property
under the Will and decreed the suit. The lower appellate court also
confirmed the judgment of the Trial Court and hence, the second
appeal.

4. The following substantial questions of law were framed at the

time of admission of the second appeal:-
"1. Whether the presumption drawn by the courts
below that both Munisamy Chettiar and Saroja Ammal
were living as husband and wife for the long time?

2. Whether Ex.A9 has been proved as required under

Section 68 of the Evidence Act, coupled with
Section 63 of the Indian Succession Act?"

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 5. It is submitted by the learned counsel for the appellant that
having regard to Ex.B1 sale deed wherein the first
respondent/plaintiff described herself as wife of Marimuthu Gounder,
the birth certificate of the daughters of the first
respondent/plaintiff viz., Exs.B2 and B3 wherein they were described
as daughters of Marimuthu Gounder and the first respondent, Ex.B5
marriage invitation of the daughter of the first respondent and
Ex.B7, the affidavit filed by the first respondent in C.C.No.543 of
1977 wherein she claimed herself as the wife of Marimuthu Gounder and
filed the complaint for defamation for having referred herself as
the concubine of Munisamy Chettiar would prove that she was not be
the wife of Munisamy Chettiar and even assuming that Munisamy
Chettiar and the first respondent/plaintiff were living together in
the same house that will not lead to the presumption that she is the
widow of Munisamy Chettiar when she is admittedly the wife of
Marimuthu Gounder. He further submitted that the court below,
without properly appreciating the suspicious circumstances
surrounding the execution of the Will and the signatures found in the
Will and the admission of PW2, one of the attesting witnesses and the
admission of PW1, the first respondent that in or about the time of
execution of the Will, the testator Munisamy Chettiar has undergone
operation and his right toe and another finger were removed and
considering these facts, the courts below ought to have held that the
Will was not executed by Munisamy Chettiar and mere registration will
not lead to any presumption that the Will was executed by the
Testator while he was in a sound and disposing state of mind and
though there were five attesting witnesses to the Will, PW2, who is
admittedly the sister's son of the first respondent/plaintiff alone
was examined to prove the attestation and therefore, it could not be
stated that the Will was executed by the testator while he was in a
sound and disposing state of mind. The learned Senior Counsel further
submitted that having regard to the admitted signatures of Munisamy
Chettiar in the letters marked in the suit as Ex.B19, it cannot be
stated that the signatures in the Will, would have been made by the
testator and all the signatures are different from one another and
these aspects were not considered by the courts below while upholding
the Will in favour of the first respondent. The learned Senior
Counsel, therefore, submitted that the courts below erred in holding
that the first respondent was the legally wedded wife of Munisamy
Chettiar and the Will was executed by the testator while he was in a
sound and disposing state of mind.

6. On the other hand, the learned counsel for the first

respondent submitted that both the courts below have concurrently
held that by drawing legal presumption having regard to the fact
that the first respondent was living with Munisamy Chettiar for more

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 than 30 years and therefore, she was presumed to be the wife of
Munisamy Chettiar relying upon the judgment of the Honourable
Supreme Court and therefore, the concurrent findings of fact that the
first respondent was the wife of Munisamy Chettiar cannot be infered
with. The learned counsel further submitted that Ex.A9 Will was a
registered Will and Munisamy Chettiar died four years later and after
the execution of the Will, he sold various items of property to
P.Ws.4 to 6 and admittedly, prior to the execution of the Will, there
was a partition among the children of Munisamy Chettiar and himself
and certain properties were allotted to the share of Munisamy
Chettiar and those properties were dealt with under the Will and
admittedly, the children of Munisamy Chettiar did not take care of
him and he was taken care of by Saroja Ammal, the first
respondent/plaintiff and therefore, there is nothing wrong in
executing the Will in favour of the vendor and the due execution of
the Will was also spoken to by PW2 and his evidence was not impeached
in cross examination and the lower appellate court has considered
various suspicious circumstances alleged to have been existed at the
time of execution of the Will and after considering all those
aspects, held that the Will was executed by Munisamy Chettiar while
he was in a sound and disposing state of mind and therefore, the
concurrent findings of fact cannot be interfered with in the second
appeal.

7. Heard both sides. According to me, having regard to the

evidence of PW1 viz., the first respondent herein and Exs.B1 to B7,
the courts below erroneously held that the first respondent was the
wife of Munisamy Chettiar and by reason of long cohabitation and
joint living, the legality of marriage can be presumed on the basis
of the judgment reported in AIR 2005 SC 4362, AIR 1992 SC 756 1972
TNLJ 464 (DB). The courts below without properly appreciating the
basic difference with respect to the facts in those cases and the
present case erred in relying upon those judgments to arrive at a
conclusion that the first respondent was the wife of Munisamy
Chettiar.

8. It is true that the Honourable Supreme Court in the above

judgments has held that long and continuous cohabitation of a man and
a woman, their treatment as such for a number of years by the society
and the fact that they are living under the same roof will lead to a
presumption that they are living as husband and wife. But, to raise
that presumption, either of the spouse should not have been married
to another person. If both of them are not having a spouse and both
of them were living together in the same roof for a long period, the
presumption can be drawn. But, having regard to the admitted facts
in this case, the presumption cannot be drawn and it cannot be

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 presumed that the first respondent was the wife of Munisamy Chettiar.
Admittedly, the first respondent was the wife of Marimuthu Gounder
and in chief examination, she admitted that she was married to
Marimuthu Gounder and after deserting him, she married Munisamy
Chettiar. She further stated that her marriage with Munisamy
Chettiar took place in the year 1960. Exs.B2 and B3 are the birth
certificates issued in favour of the daughters born to Marimuthu
Gounder and the first respondent and that was also accepted by the
first respondent in cross-examination. Ex.B1 is the registration copy
of the sale deed dated 2.12.1970 and in that document, the first
respondent was described as the wife of Marimuthu Gounder. Ex.B4
dated 20.10.1980 is the letter given by the first respondent to the
Tamil Nadu Electricity Board wherein she has given her address at
Mitapally, Uthangarai Taluk, Dharmapuri whereas Munisamy Chettiar was
residing at Singarapettai Post, Gurugapatti Village Uthangarai Taluk.
Ex.B5 is the marriage invitation of the daughter of the first
respondent through Marimuthu Gounder and in that invitation also, the
name of the bride was described as daughter of Marimuthu Gounder and
the first respondent.

9. Further, the sons of Munisamy Chettiar filed O.S.No.412 of

1977 against Munisamy Chettiar, his wife Muthammal, the first
respondent herein and others and in that suit, in the cause title,
the first respondent was described as wife of late Marimuthu Gounder
and concubine of Munisamy Chettiar residing at Mittapally Post. It
was objected by the first respondent and she filed a private
complaint in C.C.No.543 of 1977 on the file of the Chief Judicial
Magistrate, Krishnagiri under section 500 of the Indian Penal Code
stating that she is the widow of Marimuthu Gounder residing at
Mitapally Village and to defame her, the sons of Munisamy Chettiar
purposely and mischievously described her as the concubine of
Munisamy Chettiar and she has nothing to do with Munisamy Chettiar
and that suit was filed to damage her reputation and character.
Further, Ex.B30 is the voters list of the year 1995 and in the voter
list, the first respondent was described as widow of Marimuthu
Gounder and she was found living with her daughter and son-in-law
viz., Prabhavathy and Ilangovan at No.67, Mittapally village. These
documents were not at all considered by the courts below and the
courts below were carried away by the fact that the defendants
admitted that the first respondent was residing with their father and
she was treated as their stepmother and therefore, by reason of the
long cohabitation and joint living under the same roof, a presumption
can be drawn that the first respondent was the wife of Munisamy
Chettiar.

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 10. As stated supra, if the first respondent had not been married
to Marimuthu Gounder, then the courts below were right in drawing the
presumption relying upon the judgments of the Honourable Supreme
Court referred to above. But, in this case, having regard to the
clear admission by the first respondent and having regard to the
documents viz., Exs.B1 to B7 as referred to above and Ex.B30, it
cannot be presumed that the first respondent lived as second wife of
Munisamy Chettiar and no presumption can be drawn having regard to
the long cohabitation. The exhibits would also prove that the first
respondent was not residing with Munisamy Chettiar and even in the
year 1980, as evidenced by Ex.B4, complaint given by the first
respondent to the Tamil Nadu Electricity Board, Ex.B7, the private
complaint given in C.C.No.543 of 1977 and Ex.B30, the voter list of
the year 1995, the first respondent would not have lived with
Munisamy Chettiar at his residence. Admittedly, Munisamy Chettiar
had a wife by name Muthammal and she was living with Munisamy
Chettiar till she died in the year 1989 and Munisamy Chettiar did not
divorce his wife Muthammal during her life time.

11. Therefore, having regard to the admission that the first

respondent was the widow of Marimuthu Gounder, she has nothing to do
with Munisamy Chettiar and she was residing with her daughter at
Mittapally Village, it cannot be presumed that the first respondent
was the wife of Munisamy Chettiar. As stated supra, the presumption,
as laid down in the judgments of the Honourable Supreme Court, can be
entertained only when Saroja, the first respondent was not married to
Marimuthu Gounder and she was living with Munisamy Chettiar as his
second wife. Therefore, even assuming that the first respondent was
living with Munisamy Chettiar, the relationship can only be
considered as concubine and she cannot claim the status of the wife
of Munisamy Chettiar as she happens to be the widow of Marimuthu
Gounder. Therefore, the courts below, without appreciating these
exhibits, erred in presuming that the marriage had been presumed and
erroneously held that the first respondent was the wife of Munisamy
Chettiar. Therefore, the first substantial question of law is
answered in favour of the appellant and I hold that the finding of
the courts below that the first respondent was the wife of Munisamy
Chettiar is erroneous and it is set aside.

12. Next, we will have to see whether the first respondent has
proved Ex.A9 Will. According to me, irrespective of the fact whether
the first respondent was the wife of Munisamy Chettiar or not, if the
first respondent is able to prove that Ex.A9 was executed by Munisamy
Chettiar while he was in a sound and disposing state of mind, she is
entitled to the relief of declaration and injunction. Therefore, we

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 will have to see whether the first respondent has proved the due
execution of the Will, Ex.A9 by Munisamy Chettiar.

13. It is admitted by PW1 that prior to Ex.A9, Munisamy Chettiar

had executed three or four Wills and all those Wills were registered.
Admittedly, Munisamy Chettiar had ten children and number of grand
children and as per Ex.A13, the complaint given by Munisamy Chettiar
to the Director General of Police dated 12.5.1986, Munisamy Chettiar
admitted that he executed a registered Will dated 15.11.1985
bequeathing his property to his grand sons through his son
Nallathambi and Dheenadhayalan and also his four daughters. Further,
in Ex.A13, he has given complaint against his sons Dharmalingam,
Ramasamy and he also admitted that his son Nallathambi and his grand
son Ashok son of Nallathambi are having cordial relationship with
him. Therefore, when a person had ten children and also grand
children through them and executed various wills bequeathing the
properties in favour of his grand sons, whether such person would
have executed any Will and get it registered in favour of the first
respondent disinheriting his children and grand children. Though the
exclusion of heirs in a Will will not be considered as suspicious
circumstance, taking cumulative effect of various other factors, it
cannot be stated that the first respondent has proved that the Will
was executed by Munisamy Chettiar while in a sound and disposing
state of mind and there was no suspicious circumstances surrounding
the execution of the Will.

14. The lower appellate court discussed the three alleged

circumstances which can be termed as suspicious circumstances and
held that those circumstances cannot be held against the first
respondent and no such circumstances existed in this case. It is
true that the Honourable Supreme Court in the judgment reported in
PENTAKOTA SATHYANARAYANA v. PENTAKOTA SEETHARATNAM (AIR 2005 SC 4362)
held that the circumstances of depriving natural heirs should not
raise any suspicious circumstances because the idea behind the
execution of the Will is to interfere with the normal role of
succession. In the judgment reported in BHARPUR SINGH v. SHAMSHER
SINGH ((2009) 3 SCC 687), the Honourable Supreme Court placed the
entire law relating to suspicious circumstances in the execution of
Will and laid down certain criterion which may give room for
suspicious circumstances. It has been held in the above judgment in
para 23 as follows:-

"Suspicious circumstances like the following may

be found to be surrounded in the execution of the
Will:

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 (i) The signature of the testator may be very
shaky and doubtful or not appear to be his usual
signature.

(ii) The condition of the testator's mind may be

very feeble and debilitated at the relevant time.

(iii) The disposition may be unnatural, improbable

or unfair in the light of relevant circumstances
like exclusion of or absence of adequate
provisions for the natural heirs without any
reason.

(iv) The dispositions may not appear to be the

result of the testator's free will and mind.

(v) The propounder takes a prominent part in the

execution of the Will.

(vi) The testator used to sign blank papers.

(vii) The Will did not see the light of the day
for long.

(viii) Incorrect recitals of essential facts."

15. Further, the Honourable Supreme Court in the judgment

reported in NIRANJAN UMESHCHANDRA JOSHI v. MRUDULA JYOTI RAO ((2006)
13 SCC 433) held as follows:-
"33. The burden of proof that the Will has been
validly executed and is a genuine document is on the
propounder. The propounder is also required to prove
that the testator has signed the Will and that he
had put his signature out of his own free will
having a sound disposition of mind and understood
the nature and effect thereof. If sufficient
evidence in this behalf is brought on record, the
onus of the propounder may be held to have been
discharged. But, the onus would be on the applicant
to remove the suspicion by leading sufficient and
cogent evidence if there exists any. In the case of
proof of Will, a signature of a testator alone would
not prove the execution thereof, if his mind may
appear to be very feeble and debilitated. However,
if a defence of fraud, coercion or undue influence
is raised, the burden would be on the caveator. [See

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 Madhukar D.Shende v. Tarabai Aba Shedage ((2002) 2
SCC 85 and Sridevi v. Jayaraja Shetty (2005) 2 SCC
784]. Subject to above, proof of a Will does not
ordinarily differ from that of proving any other
document.
34. There are several circumstances which would
have been held to be described (sic) by this Court
as suspicious circumstances:
(i) When a doubt is created in regard to the
condition of mind of the testator despite his
signature on the Will;
(ii) When the disposition appears to be unnatural
or wholly unfair in the light of the relevant
circumstances;
(iii) Where propounder himself takes prominent
part in the execution of Will which confers on him
substantial benefit."

16. In the above judgment, the Honourable Supreme Court also

relied on the decision in ANIL KAK v. SHARADA RAJE ((2008) 7 SCC 695)
wherein it has been held as follows:-
"52. Whereas execution of any other document can be
proved by proving the writings of the document or
the contents of it as also the execution thereof, in
the event there exists suspicious circumstances the
party seeking to obtain probate and/or letters of
administration with a copy of the Will annexed must
also adduce evidence to the satisfaction of the
court before it can be accepted as genuine.
53. As an order granting probate is a judgment in
rem, the court must also satisfy its conscience
before it passes an order.
54. It may be true that deprivation of a due share
by (sic to) the natural heir by itself may not be
held to be a suspicious circumstance but it is one
of the factors which is taken into consideration
by the courts before granting probate of a Will.
55. Unlike other documents, even animus attestandi
is a necessary ingredient for proving the
attestation."

17. In the judgment reported in JASWANT KAUR v. AMRIT KAUR

((1977) 1 SCC 369), the Honourable Supreme Court has held as follows:-
"... When the Will is allegedly shrouded in
suspicion, its proof ceases to be a simple lis
between the plaintiff and defendant. An

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 adversarial proceeding in such cases becomes a
matter of Court's conscience and propounder of the
Will has to remove all suspicious circumstances to
satisfy that Will was duly executed by testator
wherefor cogent and convincing explanation of
suspicious circumstances shrouding the making of
Will must be offered."

18. Bearing these principles in mind, we will have to see whether

the first respondent has proved due execution of the Will.
Admittedly, Ex.A9 Will is a registered one and it has been held by
the Honourable Supreme Court that the fact that the Will is a
registered Will will not lead to any presumption that it has been
executed by the testator of the Will in a sound and disposing state
of mind. Therefore, the propounder of the Will has to prove that the
Will was executed by the testator while in a sound and disposing
state of mind, the conscience of the execution of the Will and the
Will was duly attested as required under section 68 of the Indian
Evidence Act coupled with section 63 of the Indian Succession Act,
1968.

19. As stated supra, the Will was attested by five persons and of
all the five attesting witnesses viz., Venkatesan, Govindasamy also
identified the testator before the Sub Registrar. One of the
attesting witnesses viz., Ponnusamy was examined to prove the due
execution and attestation of the Will. It is admitted by PW1 and
PW2, the attesting witness that the attesting witness Ponnusamy is
the sister's son of the first respondent. The other attesting
witnesses are not related to the first respondent and no attempt was
made by the first respondent to examine independent and uninterested
witness to prove the due execution of the Will.

20. Further, the Will contains six pages and the signature of the
testator in each page is not the same and one signature does not
tally with the other signature. It is the specific case of P.Ws.1
and 2 that even after execution of Ex.A9, the testator sold various
properties to PW4 to PW6 and they also were examined, but, the sale
deeds executed by Munisamy Chettiar in favour of PW4 to PW6 were not
marked in court to enable the court to compare the signature of
Munisamy Chettiar found in those sale deeds with that of the
signature of Munisamy Chettiar found in Ex.A9 Will. It is seen from
Ex.A9 that before the Sub Registrar, Munisamy Chettiar alleged to
have signed and that signature put before the Sub Registrar admitting
the execution is different from the signature found in other pages.
According to me, it is very patent to the naked eye that the
signature found in all the six pages and the signature put before the

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 Sub Registrar are different and they could not have been signed by
the same person at the same time. The style of writing and the
stroke are entirely different. For example, it is seen from Ex.A9
that Munisamy Chettiar signed in Tamil as 'br/Kdparhkp brl;o'. The
initial 'br' is different in all the six pages and the writings of
'Kdparhkp brl;o' is also different in all the pages. The first letter
'K' is different. In the signature put before the Sub Registrar, the
different stroke of 'K' and 'D' is found.

21. Further, the admitted signature of Munisamy Chettiar is

available in this case and they are Exs.A13 and B19. Ex.B19 are the
letters written by Munisamy Chettiar in the year 1983. The signature
in those letters are identical having same stroke and style and the
signature found in Ex.A9 is totally a different one. Similarly, in
Ex.A13, the signature found in Ex.A13 is similar to Ex.B19 and it is
different from the signature found in Ex.A9. Therefore, the
signature differs and one of the attesting witnesses examined is an
interested witness and independent and uninterested witnesses, who
alleged to have attested the document, were not examined. No reason
has been stated in the Will to exclude the natural heirs and to give
the entire property in favour of the first respondent. There may not
be any reason to be stated for excluding the natural heir, but, it is
expected to give reason for giving the entire properties to the first
respondent and it is only stated that she is the wife and she is
taking care of him and therefore, the Will was executed in her
favour.

22. As stated supra, PW1 admitted that earlier to Ex.A9, Munisamy

Chettiar had executed three or four registered Wills and those
registered Wills were not marked to prove the signature found in
Ex.A9 and no attempt was made by the first respondent to explain the
difference in the signature found in the Will and in Ex.B19 and
Ex.A13. Further, in the judgment reported in BABUSINGH v. RAMSINGH
(2008 (4) LW 770), it has that when the Will was suspected, the
propounder ought to have examined more than one attesting witness to
prove the genuineness of the Will. Therefore, having regard to the
suspicious circumstances as laid down in the decision reported in
(2009) 3 SCC 687 and other judgments relied upon in that judgment and
referred to by the appellant, the first respondent has not proved to
the satisfaction of the court that the Will was executed by Munisamy
Chettiar while he was in a sound and disposing state of mind.

23. As stated supra, the signature of the testator does not

appear to be his usual signature. The disposition is unnatural and
one of the attesting witnesses examined in court is none other than

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 the sister's son of the propounder would all lead to the suspicion
that the Will might not have been executed by Munisamy Chettiar while
in a sound and disposing state of mind or the Will might not have
been executed by Munisamy Chettiar. Further, it is admitted by PW1
that in or around the execution of the Will, Munisamy Chettiar had
his fingers in the leg amputated and he was hospitalised. But, PW2,
who happens to be the sister's son of PW1 viz., the first respondent
herein, did not state the physical condition and the treatment taken
by Munisamy Chettiar during the relevant time and he gave answer that
he was not aware of such things or the treatment taken by Munisamy
Chettiar during that time.

24. Therefore, having regard to the fact that the first

respondent never claimed to be the wife of Munisamy Chettiar and
considering herself as the widow of Marimuthu Gounder and was found
living in Mitapally Village and not in the place where Munisamy
Chettiar lived as evidenced by voters list Ex.B4, it cannot be held
that she was taking care of Munisamy Chettiar and out of love and
affection and considering her patronage, the Will was executed by him
while he was in a sound and disposing state of mind. Therefore, I
hold that the first respondent has not dispelled the suspicious
circumstances executed at the time of execution of the Will and
without appreciating these aspects, the court below erred in holding
that the Will was proved by the first respondent by examining PW2.
Therefore, the second substantial question of law is also answered in
favour of the appellant and I hold that the first respondent has
failed to prove Ex.A9 in the manner known to law and failed to dispel
the suspicious circumstances surrounding the execution of the Will
and therefore, she cannot claim any right under the Will.

In the result, the judgment and decree of the courts below are
set aside. The second appeal is allowed. The suit is dismissed. No
costs.

Sd/-
Asst. Registrar.

/true copy/

Sub Asst. Registrar.

ssk.

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 To

1. The Principal Subordinate Judge,

Krishnagiri.

2. The District Munsif cum

Judicial Magistrate, Uthangarai.

3. The Section Officer, VR Section,

High Court, Madras.

+ 1 CC To Mr.T.Sundar Rajan Advocate SR NO.21220

S.A.No.313 of 2010

KJI(CO)
ABH/15.05.2012

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