B.V. Srinivasan Vs. B.V. Tulasiraman - Court Judgment

SooperKanoon Citationsooperkanoon.com/828292
SubjectFamily
CourtChennai High Court
Decided OnFeb-13-2001
Reported in(2001)1MLJ702
AppellantB.V. Srinivasan
RespondentB.V. Tulasiraman
Cases ReferredVenkatachala Iyengar v. Thimmajamma
Excerpt:
- a. subbulakshmy, j.1. first defendant is the appellant.2. plaintiff filed the suit for partition and separate possession of his share in the suit properties. the case of the plaintiff is as follows: the first defendant is the elder brother of the plaintiff. the genealogy of the family is as follows: subbiah bhagavatharvenkatachalapathy krishnasamy chakrapani (heirs not mentioned) ramamurthy (adopted son)1st wife 2nd wife kamakshi govindaraju srinivasan thulisiraman d1 (plaintiff)rajaraman ramamurthy (goes in adoption)originally the suit property was owned by one subbiah bhagavathar. the three branches of subbiah bhagavathar entered into a registered partition deed on 14.11.1957 dividing the two houses in t.s.1865 and t.s.1864, sivarayar garden iii street, m. chavadi, thanjavur. the suit is related to the properties viz. a2 schedule property which was obtained by the father of the plaintiff and first defendant and b schedule property which was obtained by the plaintiff and the defendant and it is not ancestral property. the plaintiff is entitled to 2/3rd share in a2 schedule property since it was allotted to the share of venkatachalapathy and his three sons through his second wife viz. the plaintiff, the first defendant and their another brother by name govindaraju in the partition deed dated 14.11.1957. a to c schedule properties were given to venkatachalapathy, krishnasamy and chakrapani's adopted son ramamurthy respectively. venkatachalapathy had subsequently become the owner of b and c schedules of the partition deed also. krishnasamy, the b schedule property owner had purchased on 29.6.1966 c schedule property from ramamurthy. thus krishnasamy was the owner of both b and c schedules. venkatachalapathy obtained this b and c schedule portion also under a registered exchange deed dated 28.11.1979 with krishnasamy. venkatachalapathy gives his property in t.s.1866 in exchange for b and c schedule properties of the partition deed dated 14.11.1957. thus, b and c schedule properties are the self-acquisitions of venkatachalapathy. the plaintiff bought t.s.1866 in the name of his father. the plaintiff is content calling venkatachalapathy as the real owner of t.s.1866 and also the property obtained by him in exchange. the plaintiff's father died on 4.3.1983. while he was alive, he had executed an unregistered will on 25.3.1982 in a sound disposing state of mind. he has bequeathed his 1/3rd share in plaint a2 schedule in favour of the plaintiff. he has bequeathed the property obtained by him in exchange in favour of the plaintiff. the plaintiff is entitled to 2/3rd share in plaint a2 schedule property. the plaintiff and first defendant has a brother govindaraju, who has given a release deed in favour of the plaintiff, first defendant and their father venkatachalapathy. thus, in a2 schedule property, the plaintiff is entitled to 2/3rd share and the first defendant is entitled to 1/3rd share. the plaintiff has inducted a tenant for the past 1-1/2 years after raising a rcc building over the kollai portion described as a schedule in the 1957 year partition deed and the rent is rs. 175 per month. the plaintiff's father was not earning and all earnings were made by the plaintiff who was supporting his father. the first defendant is employed at madras for over 30 years. he did not care to send money to his father. b schedule property is a house at madras purchased by the plaintiff and the first defendant for a sum of rs. 27,000 on 19.1.1974. the plaintiff is entitled to half share in that property. though the plaintiff's contribution is more than a moiety, the plaintiff does not want to go into those details and is claiming a half share. in fact, the plaintiff has given his own money after purchase for converting the tiled portion into rcc in the ground floor and madras terrace in the first floor. defendants 2 to 4 are the tenants occupying b schedule property and each are paying a sum of rs. 300 to the first defendant as rent. the plaintiff has allowed the first defendant to receive that rent. apart from partition of b schedule property, the first defendant is liable to render an account for profits. the plaintiff is entitled to a sum of rs. 2,000. the plaintiff and the first defendant could not settle the matter amicably. the mediators intervened to settle the dispute, but it could not be settled. hence, the plaintiff has come forward with the suit for partition and separate possession of his 2/3rd share in a2 schedule property and half share in b schedule property and for rendition of accounts.3. the first defendant resisted the suit by contending as follows:b schedule property was purchased by this defendant with his own funds in his name and in the name of the plaintiff. at the time of purchase, the plaintiff had no money for his contribution. the claim of the plaintiff in respect of a2 schedule property is not correct. the father of this defendant had become the owner of the full house covered in both a1 and a2 schedules to the plaint. the suit relates to the entire house. the plaintiff did not purchase the property in t.s.1866 in the name of his father and it was purchased with the joint efforts and funds of this defendant and the father. a1 schedule property was acquired by the family in exchange of the property in t.s.no. 1866. thus, al schedule property is a joint family property. a1 schedule property is not the self-acquired property of the father. venkatachalapathy never executed any will. the unregistered will, if any, is a forged one. the will has not seen the light of the day for nearly a decade. the plaintiff also did not produce the will in the panchayat. the will is not a true and valid one. the plaintiff is bound to render accounts of the income derived from a schedule property. the first defendant alone has been the only member of the family having regular income. he not only supported the father and mother, but also contributed considerably to the conduct of the family business and acquisition of properties. the suit is also bad for partial partition since the entire a1 schedule property and the properties standing in the names of the plaintiff and his wife but acquired with joint family funds have been left out. the plaintiff is not entitled to any share claimed in the plaint.4. the suit was tried by the sub judge, thanjavur and it was decreed for 2/3rd share in a2 schedule property and 1/2 share in b schedule property.5. as against that judgment and decree, the first defendant/appellant has come forward with this appeal.6. in this appeal, the appellant contends that a1 schedule property was joint family property in the hands of venkatachalapathy and his exchange does not change the character of the property and no will was executed by the father and the consideration for purchase of b schedule property came exclusively from the appellant.7. during the pendency of the appeal, the appellant filed c.m.p. nos. 617 of 2001 for raising additional grounds and 6543 of 1993 to receive additional documents.8. the additional ground raised by the appellant is that the will is not genuine and valid and the trial court erred in comparing the signature with the other documents. the appellant is permitted to raise the additional grounds.9. in the other c.m.p., the appellant sought for reception of additional documents viz., inside cover page of bhagavath gita dated 19.2.1983, letter dated 27.10.1974 to the appellant by his father and letter dated 20.3.1985 by triplicane permanent fund ltd., to the appellant.10. the first document which the appellant sought for reception is not at all found in the bundle even though it is listed in the petition. the second document the letter dated 27.10.1974 is written by the father venkatachalapathy to the appellant asking him to take the entire house. the third document which is also a letter dated 20.3.1985 sent by the triplicane permanent fund ltd., to the appellant rejecting his mortgage loan application. but% these documents are not of much relevance for the purpose of this case. hence, c.m.p. 6543 of 1993 is dismissed.11. point for consideration is whether the decree passed by the trial court allotting 2/3rd share in a2 schedule property and half share in b schedule property to the plaintiff is sustainable.12. originally the suit property was owned by one subbiah bhagavathar. the three branches of subbiah bhagavathar entered into a registered partition deed on 14.11.1957 dividing the two houses in t.s.1865 and t.s.1864, sivarayar garden iii street, m. chavadi, thanjavur. the suit is related to the properties viz. a2 schedule property which was obtained by the father of the plaintiff and first defendant and b schedule property: the first defendant is the brother of the plaintiff. b schedule property was purchased in the name of the plaintiff and the first defendant. a to c schedule properties were given to venkatachalapathy, krishnasamy and chakrapani's adopted son ramamurthy respectively. subsequently, the b schedule property owner had purchased on 29.6.1966 c schedule property from ramamurthy. so, krishnasamy was the owner of both b and c schedules mentioned in the partition deed of the year 1947. venkatachalapathy obtained this b and c schedule portion also under a registered exchange deed dated 28.11.1979, ex.a2 from krishnasamy by giving his property in t.s.1866 purchased by him on 3.10.1978 in exchange for b and c schedule properties. thus, b and c schedule properties are the self-acquisitions of venkatachalapathy. the plaintiff claims that his father venkatachalapathy is the real owner of t.s.1866, and so, the property obtained by him in exchange was his own property. in a2 schedule property, the other brother govindaraju, has relinquished his share by means of a registered release deed ex.a3 in favour of the plaintiff, first defendant and their father venkatachalapathy. so, the father, the first defendant and the plaintiff each became entitled to 1/3rd in the suit property. the plaintiff claims 2/3rd share by virtue of execution of the will in his favour by his father of his 1/3rd share. so, the plaintiff claims that he is entitled to 2/3rd share and the first defendant is entitled to l/3rd share in a2 schedule property and both the/plaintiff and the first defendant each are entitled to 1/2 share in b schedule property which was purchased by the plaintiff and the first defendant on 19.1.1974. the first defendant contends that his father venkatachalapathy never executed any will and he had no right to execute such a will since it is the joint family property and it is not the separate property of his father. the first defendant vehemently contends that the will is not a true and valid one and that will will not clothe the plaintiff with any right and the plaintiff and the first defendant each are entitled to 1/2 share in a2 schedule property. the first defendant further contends that in b schedule property, he is entitled to 2/3rd share because he contributed more for its acquisition.13. learned counsel for the appellant/first defendant submitted that the father did not execute any will and proper execution and attestation of the alleged will has not been proved and the plaintiff cannot lay his claim on the strength of the will.14. learned counsel for the respondent/plaintiff submitted that only his father executed the will and it is a true and valid document and as per the will, he is entitled to his share and so, he is entitled to 2/3rd share.15. the specific evidence of pw1 is that his father had no income and his father was under his care and there was also no joint family nucleus to acquire any property in the name of the father. dw1 also admits in his evidence that there was no property in their family so as to derive income from the joint family property. so, the categorical evidence of pw1 and the admission of dw1 proves that their family had no joint family nucleus to acquire any property. so, it can be safely concluded that venkatachalapathy did not acquire any property of his own from the joint family nucleus. so, the property of venkatachalapathy which was given in exchange for b and c schedules of the partition deed dated 14.11.1957 are not the joint family properties. thus b and c schedule properties of the partition deed dated 14.11.1957 were got by the father venkatachalapathy in exchange are self-acquisitions of venkatachalapathy.16. so, the next point to be considered is whether the father venkatachalapathy executed the will, ex.a12 and whether it is a true and genuine document. ex.a12 is an unregistered document. the evidence of pw1 is that he knows about the execution of ex.a12 and his father had signed in ex.a12 and the attestors saw his father signing in ex.a12 and his father also saw the attestors signing the will. the evidence of pw1 shows that his junior paternal uncle attested the will and the other attestor is his brother-in-law. his evidence is that his brother-in-law did not come to court and the scribe of the will is ramasubbu and pw1 does not know his whereabouts. the plaintiff has examined pw2 to speak about ex.a12. pw2's evidence is that the plaintiff's father executed ex.a12 and he attested that document and krishnasamy also signed in that document. his further evidence is that the plaintiff's father signed in ex.a12 and he saw it and venkatachalapathy was in sound disposing state of mind at the time of execution of the will.17. the evidence of pw2 is that ex.a12 will was written in the document writer's house and he does not know about the scribe. pw2 is none other than the brother-in-law of the plaintiff. he is an interested witness of the plaintiff. so, his evidence is not entitled to any credence. the other attestor b.s. krishnasamy is none other than the plaintiff's own paternal uncle. the plaintiff has not chosen to examine the other attestor krishnasamy to speak about ex.a12.18. the evidence of dw1 is that his father did not execute the will and his paternal uncle krishnasamy also did not attest that will and his paternal uncle told him that he does not know about the will and he sent ex.b5 letter to him through his brother-in-law and he also sent letter to his uncle krishnasamy and he would depose in his favour. ex.b5 letter was written by the attestor of the will b.s. krishnasamy to the defendant. in ex.b5 krishnasamy has written that it is quite surprising to know that the first defendant's father had written a will and krishnaswamy has specifically stated in ex.b5 that the father did not execute any will to his knowledge.19. when the first defendant seriously disputes with regard to the execution of the will and has also filed letter ex.b5 written by the attestor krishnasamy, his paternal uncle stating that the father venkatachalapathy never executed any will, the burden is heavily shifted to the plaintiff to prove the due execution and attestation by examining the attestors to the will. the plaintiff has not discharged such burden. the plaintiff has chosen to examine only his own brother-in-law who is very much interested to depose in favour of the plaintiff. he has not chosen to examine the other attestor. section 68 of the evidence act and section 63 of the succession act have not been complied with.20. a division bench of this court in rajesh v. raja has held that:section 68 of the evidence act, provides that if a document is required by law to be attested, it shall not be used as evidence until one of the attesting witnesses at least has been called for the purpose of proving its execution if there be an attesting witness alive and subject to the process of the court and capable of giving evidence. this section lays down the mode of proof of a will by calling at least one witness but it does not set out or purport to define what is required to be proved. that, however, has been laid down in section 63(c) of the succession act. even if one witness who is called is able to depose to all that is required, by section 63(c) of the succession act, for the valid execution of a will, that would suffice for section 68 of the evidence act. section 68 of the evidence act does not, in any manner, change or alter the requirements to be proved by section 63(c) of the succession act. a reading of section 63(c) of the succession act with section 68 of the evidence act establishes that a person propounding a will has to prove that the will was duly and validly executed and that should be done by not merely establishing that the signature on the will was that of the testator but also that the attestations were made in the manner contemplated by clause (c) of section 63 of the succession act. it is not necessary under section 68 of the evidence act to examine both or all the attesting witnesses.the apex court has held in venkatachala iyengar v. thimmajamma 1959 s.c.j. 507 thatas in the case of proof of the other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. the test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. however, unlike other documents, the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator, who has already departed the world cannot say whether it is his will or not, and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. even so, in dealing with the proof of wills, the court will start on the same enquiry as in the case of the proof of documents. the propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. there may however be cases in which execution of the will may be surrounded by suspicious circumstances. in such cases, the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. the presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator.in the case on hand, valid execution and attestation of the document has not been proved. the evidence of pw2 one of the attestors is not at all satisfactory. the other attestor has not been examined. on the other hand, the other attestor has written ex.b5 letter to the defendant stating that his father never executed any will. the father had also written letter ex.b4 stating the method of division of the properties between the plaintiff and the defendant. therein the father venkatachalapathy had asked the defendant to take the entire madras house and if the plaintiff demands any share, the thanjavur house can be taken equally between them and as he got 2/3rd share by means of exchange, the defendant is also entitled to 1/2 share in that property. so, the father himself expressed his intention to give the property in equal shares to the plaintiff and the first defendant. ex.b4 letter was written after ex.a12 will. if really ex.a12 was executed by the father, there would not have been any necessity for the father to write ex.b4 letter dated 19.2.1983. ex.b4 also belies the case of the plaintiff with regard to due execution of the will ex.a12.21. so, the evidence shows that the will ex.a12 is surrounded by suspicious circumstances which have not been removed by the propounder of the will. exs.b4 and b5 amply establish that ex.a12 is not a true and valid document. the non-examination of the other attesting witness who has written ex.b5 letter leaves no doubt to . come to the conclusion that ex.a12 will is not a true and genuine one. valid execution and attestation of the will ex.a12 has not been proved in this case.22. the oral as well as documentary evidence prove that valid execution and attestation of the will ex.a12 has not been proved. hence, we find that the plaintiff is not entitled to claim 2/3rd share in a2 schedule property. the plaintiff and the defendant being brothers each are entitled to half share in a2 schedule property.23. in respect of b schedule property, the case of the plaintiff is that it was purchased in the name of the plaintiff and the defendant and the plaintiff is entitled to 1/2 share in the b schedule property. admittedly, the property stands in the name of the plaintiff and the first defendant. the case of the first defendant is that he contributed more money for this property by spending his own money and is entitled to more share. dw1, during the course of cross examination, admitted that for b schedule property, the plaintiff paid a sum of rs. 18,000 and he also gave rs. 2,000 towards purchase of the plot. he further admits that even for the repair, the plaintiff gave money and he returned it back. the categorical evidence of d w1 is that the plaintiff is entitled to 1/2 share in madras property and he is entitled to 1/2 share in thanjavur property. the first defendant has stated that he spent amount for the madras house for its improvement. during the course of cross examination, he has stated that he is not having any account for the amount spent for the madras property. so, with regard to the case of the first defendant that he spent amount for the madras house and is entitled to more share, it does not hold good. the evidence of pw1, dw1 and the documentary evidence prove that the plaintiff and the first defendant each are entitled to half share in a2 and b schedule property.24. the plaintiff asked for rendition of accounts. dw1 also admits in his evidence that he did not send the rent received by him in respect of the house.25. the evidence of dw1 is that the defendant received rent of rs. 300 per month for the madras property. dw1 also admits in his evidence that he did not give any share in the rent to the plaintiff. the plaintiff is entitled to mesne profits in respect of b schedule property for the past three years prior to filing of the suit. future mesne profits will be decided in a separate proceedings.26. for the foregoing discussions, the judgment and decree passed by the trial court in respect of a2 schedule property is liable to be modified. the finding of the trial court in respect of b schedule property granting 1/2 share to the plaintiff is liable to be confirmed.27. in the result, the appeal is allowed in part. the judgment and decree passed by the trial court in respect of a2 schedule property is modified holding that the plaintiff is entitled to 1/2 share in a2 schedule property and in respect of b schedule property, it is confirmed. no costs. in the light of our decision in the appeal, c.m.p. no. 9061 of 1994 does not arise for consideration. hence, it is dismissed.
Judgment:

A. Subbulakshmy, J.

1. First defendant is the appellant.

2. Plaintiff filed the suit for partition and separate possession of his share in the suit properties. The case of the plaintiff is as follows: The first defendant is the elder brother of the plaintiff. The genealogy of the family is as follows:

Subbiah Bhagavathar

Venkatachalapathy Krishnasamy Chakrapani

(heirs not mentioned)

Ramamurthy

(adopted son)

1st wife 2nd wife Kamakshi

Govindaraju Srinivasan Thulisiraman

D1 (Plaintiff)

Rajaraman Ramamurthy

(goes in adoption)Originally the suit property was owned by one Subbiah Bhagavathar. The three branches of Subbiah Bhagavathar entered into a registered partition deed on 14.11.1957 dividing the two houses in T.S.1865 and T.S.1864, Sivarayar Garden III Street, M. Chavadi, Thanjavur. The suit is related to the properties viz. A2 schedule property which was obtained by the father of the plaintiff and first defendant and B schedule property which was obtained by the plaintiff and the defendant and it is not ancestral property. The plaintiff is entitled to 2/3rd share in A2 schedule property since it was allotted to the share of Venkatachalapathy and his three sons through his second wife viz. the plaintiff, the first defendant and their another brother by name Govindaraju in the partition deed dated 14.11.1957. A to C schedule properties were given to Venkatachalapathy, Krishnasamy and Chakrapani's adopted son Ramamurthy respectively. Venkatachalapathy had subsequently become the owner of B and C schedules of the partition deed also. Krishnasamy, the B schedule property owner had purchased on 29.6.1966 C schedule property from Ramamurthy. Thus Krishnasamy was the owner of both B and C schedules. Venkatachalapathy obtained this B and C schedule portion also under a registered exchange deed dated 28.11.1979 with Krishnasamy. Venkatachalapathy gives his property in T.S.1866 in exchange for B and C schedule properties of the partition deed dated 14.11.1957. Thus, B and C schedule properties are the self-acquisitions of Venkatachalapathy. The plaintiff bought T.S.1866 in the name of his father. The plaintiff is content calling Venkatachalapathy as the real owner of T.S.1866 and also the property obtained by him in exchange. The plaintiff's father died on 4.3.1983. While he was alive, he had executed an unregistered Will on 25.3.1982 in a sound disposing state of mind. He has bequeathed his 1/3rd share in plaint A2 schedule in favour of the plaintiff. He has bequeathed the property obtained by him in exchange in favour of the plaintiff. The plaintiff is entitled to 2/3rd share in plaint A2 schedule property. The plaintiff and first defendant has a brother Govindaraju, who has given a release deed in favour of the plaintiff, first defendant and their father Venkatachalapathy. Thus, in A2 schedule property, the plaintiff is entitled to 2/3rd share and the first defendant is entitled to 1/3rd share. The plaintiff has inducted a tenant for the past 1-1/2 years after raising a RCC building over the kollai portion described as A schedule in the 1957 year partition deed and the rent is Rs. 175 per month. The plaintiff's father was not earning and all earnings were made by the plaintiff who was supporting his father. The first defendant is employed at Madras for over 30 years. He did not care to send money to his father. B schedule property is a house at Madras purchased by the plaintiff and the first defendant for a sum of Rs. 27,000 on 19.1.1974. The plaintiff is entitled to half share in that property. Though the plaintiff's contribution is more than a moiety, the plaintiff does not want to go into those details and is claiming a half share. In fact, the plaintiff has given his own money after purchase for converting the tiled portion into RCC in the ground floor and Madras terrace in the first floor. Defendants 2 to 4 are the tenants occupying B schedule property and each are paying a sum of Rs. 300 to the first defendant as rent. The plaintiff has allowed the first defendant to receive that rent. Apart from partition of B schedule property, the first defendant is liable to render an account for profits. The plaintiff is entitled to a sum of Rs. 2,000. The plaintiff and the first defendant could not settle the matter amicably. The mediators intervened to settle the dispute, but it could not be settled. Hence, the plaintiff has come forward with the suit for partition and separate possession of his 2/3rd share in A2 schedule property and half share in B schedule property and for rendition of accounts.

3. The first defendant resisted the suit by contending as follows:

B schedule property was purchased by this defendant with his own funds in his name and in the name of the plaintiff. At the time of purchase, the plaintiff had no money for his contribution. The claim of the plaintiff in respect of A2 schedule property is not correct. The father of this defendant had become the owner of the full house covered in both A1 and A2 schedules to the plaint. The suit relates to the entire house. The plaintiff did not purchase the property in T.S.1866 in the name of his father and it was purchased with the joint efforts and funds of this defendant and the father. A1 schedule property was acquired by the family in exchange of the property in T.S.No. 1866. Thus, Al schedule property is a joint family property. A1 Schedule property is not the self-acquired property of the father. Venkatachalapathy never executed any Will. The unregistered Will, if any, is a forged one. The Will has not seen the light of the day for nearly a decade. The plaintiff also did not produce the Will in the panchayat. The Will is not a true and valid one. The plaintiff is bound to render accounts of the income derived from A schedule property. The first defendant alone has been the only member of the family having regular income. He not only supported the father and mother, but also contributed considerably to the conduct of the family business and acquisition of properties. The suit is also bad for partial partition since the entire A1 schedule property and the properties standing in the names of the plaintiff and his wife but acquired with joint family funds have been left out. The plaintiff is not entitled to any share claimed in the plaint.

4. The suit was tried by the Sub Judge, Thanjavur and it was decreed for 2/3rd share in A2 schedule property and 1/2 share in B schedule property.

5. As against that judgment and decree, the first defendant/appellant has come forward with this appeal.

6. In this appeal, the appellant contends that A1 schedule property was joint family property in the hands of Venkatachalapathy and his exchange does not change the character of the property and no Will was executed by the father and the consideration for purchase of B Schedule property came exclusively from the appellant.

7. During the pendency of the appeal, the appellant filed C.M.P. Nos. 617 of 2001 for raising additional grounds and 6543 of 1993 to receive additional documents.

8. The additional ground raised by the appellant is that the Will is not genuine and valid and the Trial Court erred in comparing the signature with the other documents. The appellant is permitted to raise the additional grounds.

9. In the other C.M.P., the appellant sought for reception of additional documents viz., inside cover page of Bhagavath Gita dated 19.2.1983, letter dated 27.10.1974 to the appellant by his father and letter dated 20.3.1985 by Triplicane Permanent Fund Ltd., to the appellant.

10. The first document which the appellant sought for reception is not at all found in the bundle even though it is listed in the petition. The second document the letter dated 27.10.1974 is written by the father Venkatachalapathy to the appellant asking him to take the entire house. The third document which is also a letter dated 20.3.1985 sent by the Triplicane Permanent Fund Ltd., to the appellant rejecting his mortgage loan application. But% these documents are not of much relevance for the purpose of this case. Hence, C.M.P. 6543 of 1993 is dismissed.

11. Point for consideration is whether the decree passed by the trial court allotting 2/3rd share in A2 schedule property and half share in B schedule property to the plaintiff is sustainable.

12. Originally the suit property was owned by one Subbiah Bhagavathar. The three branches of Subbiah Bhagavathar entered into a registered partition deed on 14.11.1957 dividing the two houses in T.S.1865 and T.S.1864, Sivarayar Garden III Street, M. Chavadi, Thanjavur. The suit is related to the properties viz. A2 schedule property which was obtained by the father of the plaintiff and first defendant and B schedule property: The first defendant is the brother of the plaintiff. B schedule property was purchased in the name of the plaintiff and the first defendant. A to C schedule properties were given to Venkatachalapathy, Krishnasamy and Chakrapani's adopted son Ramamurthy respectively. Subsequently, the B schedule property owner had purchased on 29.6.1966 C schedule property from Ramamurthy. So, Krishnasamy was the owner of both B and C schedules mentioned in the partition deed of the year 1947. Venkatachalapathy obtained this B and C schedule portion also under a registered exchange deed dated 28.11.1979, Ex.A2 from Krishnasamy by giving his property in T.S.1866 purchased by him on 3.10.1978 in exchange for B and C schedule properties. Thus, B and C schedule properties are the self-acquisitions of Venkatachalapathy. The plaintiff claims that his father Venkatachalapathy is the real owner of T.S.1866, and so, the property obtained by him in exchange was his own property. In A2 schedule property, the other brother Govindaraju, has relinquished his share by means of a registered release deed Ex.A3 in favour of the plaintiff, first defendant and their father Venkatachalapathy. So, the father, the first defendant and the plaintiff each became entitled to 1/3rd in the suit property. The plaintiff claims 2/3rd share by virtue of execution of the Will in his favour by his father of his 1/3rd share. So, the plaintiff claims that he is entitled to 2/3rd share and the first defendant is entitled to l/3rd share in A2 schedule property and both the/plaintiff and the first defendant each are entitled to 1/2 share in B schedule property which was purchased by the plaintiff and the first defendant on 19.1.1974. The first defendant contends that his father Venkatachalapathy never executed any Will and he had no right to execute such a Will since it is the joint family property and it is not the separate property of his father. The first defendant vehemently contends that the Will is not a true and valid one and that Will will not clothe the plaintiff with any right and the plaintiff and the first defendant each are entitled to 1/2 share in A2 schedule property. The first defendant further contends that in B schedule property, he is entitled to 2/3rd share because he contributed more for its acquisition.

13. Learned Counsel for the appellant/first defendant submitted that the father did not execute any Will and proper execution and attestation of the alleged Will has not been proved and the plaintiff cannot lay his claim on the strength of the Will.

14. Learned Counsel for the respondent/plaintiff submitted that only his father executed the Will and it is a true and valid document and as per the Will, he is entitled to his share and so, he is entitled to 2/3rd share.

15. The specific evidence of PW1 is that his father had no income and his father was under his care and there was also no joint family nucleus to acquire any property in the name of the father. DW1 also admits in his evidence that there was no property in their family so as to derive income from the joint family property. So, the categorical evidence of PW1 and the admission of DW1 proves that their family had no joint family nucleus to acquire any property. So, it can be safely concluded that Venkatachalapathy did not acquire any property of his own from the joint family nucleus. So, the property of Venkatachalapathy which was given in exchange for B and C schedules of the partition deed dated 14.11.1957 are not the joint family properties. Thus B and C schedule properties of the partition deed dated 14.11.1957 were got by the father Venkatachalapathy in exchange are self-acquisitions of Venkatachalapathy.

16. So, the next point to be considered is whether the father Venkatachalapathy executed the Will, Ex.A12 and whether it is a true and genuine document. Ex.A12 is an unregistered document. The evidence of PW1 is that he knows about the execution of Ex.A12 and his father had signed in Ex.A12 and the attestors saw his father signing in Ex.A12 and his father also saw the attestors signing the Will. The evidence of PW1 shows that his junior paternal uncle attested the Will and the other attestor is his brother-in-law. His evidence is that his brother-in-law did not come to court and the scribe of the Will is Ramasubbu and PW1 does not know his whereabouts. The plaintiff has examined PW2 to speak about Ex.A12. PW2's evidence is that the plaintiff's father executed Ex.A12 and he attested that document and Krishnasamy also signed in that document. His further evidence is that the plaintiff's father signed in Ex.A12 and he saw it and Venkatachalapathy was in sound disposing state of mind at the time of execution of the Will.

17. The evidence of PW2 is that Ex.A12 Will was written in the document writer's house and he does not know about the scribe. PW2 is none other than the brother-in-law of the plaintiff. He is an interested witness of the plaintiff. So, his evidence is not entitled to any credence. The other attestor B.S. Krishnasamy is none other than the plaintiff's own paternal uncle. The plaintiff has not chosen to examine the other attestor Krishnasamy to speak about Ex.A12.

18. The evidence of DW1 is that his father did not execute the Will and his paternal uncle Krishnasamy also did not attest that Will and his paternal uncle told him that he does not know about the Will and he sent Ex.B5 letter to him through his brother-in-law and he also sent letter to his uncle Krishnasamy and he would depose in his favour. Ex.B5 letter was written by the attestor of the Will B.S. Krishnasamy to the defendant. In Ex.B5 Krishnasamy has written that it is quite surprising to know that the first defendant's father had written a Will and Krishnaswamy has specifically stated in Ex.B5 that the father did not execute any Will to his knowledge.

19. When the first defendant seriously disputes with regard to the execution of the Will and has also filed letter Ex.B5 written by the attestor Krishnasamy, his paternal uncle stating that the father Venkatachalapathy never executed any Will, the burden is heavily shifted to the plaintiff to prove the due execution and attestation by examining the attestors to the Will. The plaintiff has not discharged such burden. The plaintiff has chosen to examine only his own brother-in-law who is very much interested to depose in favour of the plaintiff. He has not chosen to examine the other attestor. Section 68 of the Evidence Act and Section 63 of the Succession Act have not been complied with.

20. A Division Bench of this Court in Rajesh v. Raja has held that:

Section 68 of the Evidence Act, provides that if a document is required by law to be attested, it shall not be used as evidence until one of the attesting witnesses at least has been called for the purpose of proving its execution if there be an attesting witness alive and subject to the process of the court and capable of giving evidence. This section lays down the mode of proof of a Will by calling at least one witness but it does not set out or purport to define what is required to be proved. That, however, has been laid down in Section 63(c) of the Succession Act. Even if one witness who is called is able to depose to all that is required, by Section 63(c) of the Succession Act, for the valid execution of a Will, that would suffice for Section 68 of the Evidence Act. Section 68 of the Evidence Act does not, in any manner, change or alter the requirements to be proved by Section 63(c) of the Succession Act. A reading of Section 63(c) of the Succession Act with Section 68 of the Evidence Act establishes that a person propounding a Will has to prove that the Will was duly and validly executed and that should be done by not merely establishing that the signature on the Will was that of the testator but also that the attestations were made in the manner contemplated by Clause (c) of Section 63 of the Succession Act. It is not necessary under Section 68 of the Evidence Act to examine both or all the attesting witnesses.

The Apex Court has held in Venkatachala Iyengar v. Thimmajamma 1959 S.C.J. 507 that

As in the case of proof of the other documents so in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. However, unlike other documents, the Will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator, who has already departed the world cannot say whether it is his Will or not, and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills, the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. There may however be cases in which execution of the Will may be surrounded by suspicious circumstances. In such cases, the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last Will of the testator.

In the case on hand, valid execution and attestation of the document has not been proved. The evidence of PW2 one of the attestors is not at all satisfactory. The other attestor has not been examined. On the other hand, the other attestor has written Ex.B5 letter to the defendant stating that his father never executed any Will. The father had also written letter Ex.B4 stating the method of division of the properties between the plaintiff and the defendant. Therein the father Venkatachalapathy had asked the defendant to take the entire Madras house and if the plaintiff demands any share, the Thanjavur house can be taken equally between them and as he got 2/3rd share by means of exchange, the defendant is also entitled to 1/2 share in that property. So, the father himself expressed his intention to give the property in equal shares to the plaintiff and the first defendant. Ex.B4 letter was written after Ex.A12 Will. If really Ex.A12 was executed by the father, there would not have been any necessity for the father to write Ex.B4 letter dated 19.2.1983. Ex.B4 also belies the case of the plaintiff with regard to due execution of the Will Ex.A12.

21. So, the evidence shows that the Will Ex.A12 is surrounded by suspicious circumstances which have not been removed by the propounder of the Will. Exs.B4 and B5 amply establish that Ex.A12 is not a true and valid document. The non-examination of the other attesting witness who has written Ex.B5 letter leaves no doubt to . come to the conclusion that Ex.A12 Will is not a true and genuine one. Valid execution and attestation of the Will Ex.A12 has not been proved in this case.

22. The oral as well as documentary evidence prove that valid execution and attestation of the Will Ex.A12 has not been proved. Hence, we find that the plaintiff is not entitled to claim 2/3rd share in A2 schedule property. The plaintiff and the defendant being brothers each are entitled to half share in A2 schedule property.

23. In respect of B schedule property, the case of the plaintiff is that it was purchased in the name of the plaintiff and the defendant and the plaintiff is entitled to 1/2 share in the B schedule property. Admittedly, the property stands in the name of the plaintiff and the first defendant. The case of the first defendant is that he contributed more money for this property by spending his own money and is entitled to more share. DW1, during the course of cross examination, admitted that for B schedule property, the plaintiff paid a sum of Rs. 18,000 and he also gave Rs. 2,000 towards purchase of the plot. He further admits that even for the repair, the plaintiff gave money and he returned it back. The categorical evidence of D W1 is that the plaintiff is entitled to 1/2 share in Madras property and he is entitled to 1/2 share in Thanjavur property. The first defendant has stated that he spent amount for the Madras house for its improvement. During the course of cross examination, he has stated that he is not having any account for the amount spent for the Madras property. So, with regard to the case of the first defendant that he spent amount for the Madras house and is entitled to more share, it does not hold good. The evidence of PW1, DW1 and the documentary evidence prove that the plaintiff and the first defendant each are entitled to half share in A2 and B schedule property.

24. The plaintiff asked for rendition of accounts. DW1 also admits in his evidence that he did not send the rent received by him in respect of the house.

25. The evidence of DW1 is that the defendant received rent of Rs. 300 per month for the Madras property. DW1 also admits in his evidence that he did not give any share in the rent to the plaintiff. The plaintiff is entitled to mesne profits in respect of B schedule property for the past three years prior to filing of the suit. Future mesne profits will be decided in a separate proceedings.

26. For the foregoing discussions, the judgment and decree passed by the trial court in respect of A2 schedule property is liable to be modified. The finding of the trial court in respect of B schedule property granting 1/2 share to the plaintiff is liable to be confirmed.

27. In the result, the appeal is allowed in part. The judgment and decree passed by the trial court in respect of A2 schedule property is modified holding that the plaintiff is entitled to 1/2 share in A2 schedule property and in respect of B schedule property, it is confirmed. No costs. In the light of our decision in the appeal, C.M.P. No. 9061 of 1994 does not arise for consideration. Hence, it is dismissed.