V. KALYANASWAMY (D) BY LRS. & ANR. v. L. BAKTHAVATSALAM (D) BY LRS. & ORS.

A Evidence Act, it was found that the requirements of Section 69 of the Evidence Act were fulfilled. Registration dispelled all suspicion. The fact that R1 testator refused to affix the mark impression and insisted on signing, was also relied upon to show that he had sound disposing capacity. The suspicious circumstances noted by the trial court did not appeal to the court as such. B10 Will was found to be genuine. The B burden to prove that the Will was obtained by coercion and undue influence was not discharged by the respondents. The court went on to find that B1 had caused a division in status. It finds that B1 was published by Rangaswami Naidu on 10.5.1955. Lakshmiah Naidu wrote a letter to Rangaswami Naidu on 11.05.1955 rejecting B1 and stated that C Rangaswami Naidu was still continuing as member of HUF. Rangaswami Nadu sent a reply letter on 16.05.1955 confirming B1. They were marked as B43 and B44 is Section 145 proceedings. Rejecting the argument of the respondents that there was no issue raised as to whether division was effected vide B1 newspaper statement, it found that there was pleading in the written statement of defendant No.1 and D in the counter statement of the other defendants. Plaintiffs and the respondents were not surprised as regards the contention that it was not open to a member of an undivided family to unilaterally allot property to his share, as was done by Rangaswami Naidu. It was found meritless and supported as follows: E Respondents did not raise any objection regarding unilateral allotment in OS 71 OF 1958 and OS 36 of 1963. Secondly, it was noticed that there were more than 93 items amounting to 100s of acres belonging to HUF and what was unilaterally allotted was only a small part of the properties. The court finds that “it could not think of that as totally unjustified”. The court noticed the decision of this Court in Bhagwant P. Sulakhe case (supra). This was dealt with by holding that that was a case where there was a problem of partnership and it was so decided. The letter of Rangaswami Naidu dated 16.05.1955 was relied upon wherein he confirmed B1 advertisement and it was found that it was unable “to consider this as a unilateral act of declaration” and to decide that this act does not change the joint family character of the properties. It is stated that regarding the problem, it is decided that B1 created a division in status. Even though Rangaswami Naidu did unilateral allotment, H Lakshmiah Naidu and sons accepted the unilateral allotment in

V. KALYANASWAMY (D) BY LRS. & ANR. v. 679 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

their subsequent conduct and therefore not entitled to challenge A the Will.

32Copy pinpoint32. The argument of estoppel raised against the appellants based on the conduct of the appellants in OS No.36 of 1963 in accepting the absolute title of R. Krishnammalin items No.1 to 3, 4 and 7 was found without merit. It found that items 1,3 and 4 were items sold by B R. Krishnammal to defendants 5 and 6 in the said suit.Item No.7 was the land acquired by the government. It was found that there was no evidence to reveal on what basis defendants 1 to 4 have acted qua the compromise in regard to the properties sold and item acquired by the Government. It was found further that the compromise was with regard to the items sold and acquired and even the court cannot decide this C situation as acting against the appellants. Thereafter, the Court finds that in B10 Will, 19 items of properties are mentioned. Items 1 to 7 to which R.Krishnammal was given absolute title under the compromise decree were scheduled as suit properties in OS No. 36 of 1963. The argument of the respondents that as the appellants had accepted that D R.Krishnammal has abandoned her right in the other property in OS No. 71 of 1958 those properties were not scheduled in OS No. 36 of 1963 and the bar of Order II Rule 2 would apply, was repelled. The Court found that the plaintiff in OS No. 36 of 1963 had reserved the right. Secondly the bar of Order II, Rule 2 will not apply having regard to the death of R. Krishnammal much after 1963, which was in 1977. It was found that Order II Rule 2 cannot apply, as in 1963 the plaintiff did not have the right which accrued to them (legatees) only upon the death of R.Krishnammal as absolute owners under the Will. It was further found that the decree in OS No. 36 of 1963 further diluted the compromise decree in OS No. 71 of 1958 wherein R. Krishnammal was conferred absolute title in items 1 to 7. Under decree in OS No. 36 of 1963 the sons of Lakshmiah Naidu were joined as parties. They had appointed an advocate. The advocate has made a joint endorsement for the compromise decree. Under the decree in OS No. 36 of 1963, the right over items 5 and 6 was by way of reserving life interest in favour of R.Krishnammal and this was found to be against respondents. Thus, a right under the G Will was conferred by the conduct of the parties. Regarding the controversy qua Section 14 of the Hindu Succession Act, it was found that R.Krishnammal had prayed for the right under Section 14 (1) only as alternative relief in OS No.71 of 1958. The court found it unable to decide that the absolute right given to R.Krishnammal in OS No. 71 of H

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A 1958 was given in accordance with her right under Section 14 (1) and had it being the case the appellants should have been made parties and the executor of the Will would not have been exonerated. It was found that R. Krishnammal had no intention to obtain absolute right under Section 14 (1). It was further found that the conduct of the respondents was in a manner that she should not get her share in property. Lakshmiah B Naidu and his sons conducted proceedings under Section 145 to withhold property in their possession. In OS No. 71 of 1958 they gave items 1 to 7 by a pittance for the compromise. R.Krishnammal, it was held, accepted her estate for life as something was better than nothing. It was found noteworthy that in OS No. 71 of 1958, it was not openly stated by C R. Krishnammal that she had a right under Section 14 (1) and she has abandoned all the properties except items 1 to 7 therein. The compromise decree in OS No. 36 of 1963 revealed that the parties intended to follow the Will, as could be seen from bestowing life interest in items by them by diluting the compromise decree in OS No. 71 of 1958. Accordingly Appeal No. 195 of 1989 and Appeal no. 20 of 1989 were allowed. OS D No. 649 of 1985 was dismissed. Appeal No. AS No. 194 of 1989, AS No. 225 of 1992 were also allowed setting aside the judgement in OS No. 89 of 1983, the said suit was decreed. It was ordered that schedule II properties should be divided into 4 equal shares and one share should be allotted to the plaintiff. A preliminary decree for partition was passed and further mesne profit was to be decided based on application under Order 20 Rule 12 CPC. FINDINGS OF HIGH COURT IN THE IMPUGNED JUDGMENT

33Copy pinpoint33. In one common judgment, the High Court disposed of the second appeals. It found that both the courts had concurrently found that there was no proof that there was a partition in 1932. It went on to find that in such circumstance, the question was whether there was a division before the death of Rangaswami Naidu. It notes that there is no issue raised that a division was brought about by issuing B1. The first appellate court, it was noticed, framed specific issue of division based on B1. Based on B1, division of status was not proved. It went on to agree with respondents that the plaintiff in OS No.89 of 1983 relied upon B1 dated 12.05.1955 while the first defendant in OS No.649 of 1985 in the written statement has stated that Rangaswami Naidu had issued the public notice on 10.05.1955 that he was a divided member H

V. KALYANASWAMY (D) BY LRS. & ANR. v. 681 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

from his brother since 1932 for which a notice was issued on 11.05.1955 A and for which a reply was also given by Rangaswami Naidu. It was further found that apart from the newspaper “Navva India” dated 12.05.1955, no other document was filed in the proceedings. The court found there is absolutely no reason to conclude that there was any division between the brothers before Rangaswami Naidu died. It is further stated that it is not in dispute that the publication stated to have been effected by Rangaswami Naidu, is on the basis of the previous partition between him and his brother in 1932 and inasmuch as the courts have concurrently held that there was no prior partition and in absence of any proof of separation by Rangaswami Naidu with his brother before his death, the finding of the first appellate court, was described as baseless. It was found that it was doubtful whether RangaswamiNaidu had any right to make a Will. The original Will was not produced. The plaintiff (the plaintiff in OS No.89 of 1983) did not take any steps to produce the Will. None was examined though the registration book from the Sub-Registrar was summoned and marked as X1. The Magistrate in Section 145 proceedings did not discuss the Will and the appellant-plaintiff in OS No.89 of 1983 placed sole reliance on the order of the Executive Magistrate. It is further noticed that the Will was presented for registration as per the endorsement at the residence of Ammani Ammal whereas in B7 deposition of the attesting witness, the registration took place at the home of the deceased. In the absence of the original Will and non-compliance with the requirement of Section 68 and 69 of the Evidence Act, the court found that the Will was not proved. Registration of the Will does not dispense with the proof of the Will. It agreed with the findings of the trial court in this regard. The Executor is stated to have died in 1990 but no steps were taken to produce the Will during that time. It was not known why the plaintiff did not take steps to summon the records of proceedings under Section 145. R. Krishnammal acquired right under Section 14(1) of the Hindu Succession Act on the basis of the compromise. The rights of R. Krishnammal opened on 01.06.1955 when her husband died. R. Krishnammal had right to maintenance which was an existing right. The High Court distinguished the judgment of this Court in Sadhu Singh G v. Gurdwara Sahib Narike and Others3. By virtue of that right under Section 14(1) she had entered into the compromise in OS No.71 of 1958 and this was entirely recognised by the appellants. The appeals were allowed and the decree of the trial court was restored. 3 2006 (8) SCC 75 H

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A CONTENTIONS OF PARTIES THE DEBATE IN THE COURT AND THE WRITTEN SUBMISSIONS

34Copy pinpoint34. We have heard the learned counsel appearing for the parties. We heard Shri C.A. Sundaram, learned Senior Counsel who led the B arguments on behalf of the appellants. We heard Mrs. Mohana and Shri V. Giri, learned Senior Counsels also, on behalf of the appellants. We further heard Shri Mohan Parasaran, Shri S. Guru Krishnakumar, Mrs. Chitra Sampath, and Shri V. Raghavachari, learned Senior Counsel, on behalf of the respondents. This is besides noting the submission of C Shri S. Nagamuthu, learned senior counsel on behalf of some of the alienees from defendant No. 1 in OS 649/ 1985.

35Copy pinpoint35. The appellants were led by Shri. C.A. Sundaram, learned senior counsel. He contended that the High Court had in the impugned judgment transgressed the limits under Section 100 of the CPC and re- D appreciated the findings based on facts which was impermissible. He no doubt also does not invite us to find that there was an oral partition in the year 1932 but he contended that before Rangaswami Naidu died on 01.06.1955 by virtue of issuing B1 paper advertisement, the requirement in law for bringing about a division in the status of the Hindu Undivided Family was achieved. He took us to the terms of B1 and submitted that there is an unequivocal declaration of Rangaswami Naidu being separated. Response by his brother by communication dated 11.05.1955 purported to dispute the contents of B1. This fact was harnessed to contend that the requirement in law that not only a member who wishes a division in the joint family to be brought about, should communicate his intention but the communication should reach the other coparceners, was fulfilled. The elder brother did respond and till further, lending credence to the case set up by the appellant communication dated 16.05.1955 was issued by Rangaswami Naidu reiterating his stand manifested in Exhibit B1. It is not the law, learned senior counsel pointed out, that there must be any reason at all for a member of the Hindu Undivided Family to severe its connection with the family and to withdraw as it were from the undivided status. All that is required is an unequivocal declaration which is communicated and the same was achieved issuing in B1. He would further submit that the Will was indeed genuine and free from taint or suspicious circumstances, which at any rate was found by the first appellate court which is the final court on facts. Rangaswami Naidu

V. KALYANASWAMY (D) BY LRS. & ANR. v. 683 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

was indeed fond of his sisters. He did not have any issues. It is only natural and probable that therefore finding that death was not too far away he wanted to provide for both - his wife in the form of life estate and also to bequeath the absolute right in the 4 legatees (appellants before us) and he has drawn from each of the 4 branches of his sisters. The evidence given by the attesting witness in Section 145 proceedings fulfilled the requirement of Section 69 of the Evidence Act, as was correctly found by the first appellate court. In regard to the discrepancy in the date of Exhibit B1, viz., that it is shown in the Appendix to the trial court judgment as being dated 12.05.1955 it is only a mistake and the date is actually 10.05.1955. In regard to the requirement to be fulfilled to bring about a division in joint family he relied on the following judgments: C

1. Krishnabai Bhritar Ganpatrao Deshmukhv. Appasaheb Tuljaramarao Nimbalkar and Ors.4;

2. Addagada Raghavamma and Ors.v.Addagada Chenchamma and Ors.5 D

3. Adiyalath Katheesumma and Ors.v.Adiyalath Beechu and Ors.6 ; The appellants also relied upon B2 order passed in the proceedings under Section 145 CrPC to show that Rangaswami Naidu declared his divided status vide E communication dated 10.05.1955. Another contention addressed is that even the execution of the Will amounted to declaration of status. Reliance is placed on Addagada Raghavamma case(supra) and Bhagwan Krishan Gupta v. Praabha Gupta& Ors7. The execution of the Will shows thatRangaswami Naidu was in control of specific properties. Evidence of R. F Krishnammal and the executor in the will in 145 proceedings establishes that testator was capable of dealing with the properties and executing Will in respect of portion of his huge estate. Reliance is placed on the judgment of this Court reported in Jalaja Shedhti& Ors. v. Lakshmi Shedhti & Ors.8, G

4 1979 (4) SCC 60 5 AIR 1964 SC 136 6 AIR 1951 MAD 561 7 2009 (11) SCC 33 8 1973 (2) SCC 773 H

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A Hardeo Rai v. Sakuntala Devi & Ors.9 and Kalyani (Dead) by LRs v. Narayanan & Ors.10. It is the submission of the appellant that Rangaswami Naidu was capable of identifying and disposing of properties in the Will. Rangaswami Naidu has purchased properties in his name with his money which was dealt with by him as his own portion. Partition by metes and B bounds is not mandatory. The requirement of Section 69 of the Evidence Act stands fulfilled on perusing the deposition of one of the attesting witness in Section 145 proceedings. The signature of the testator was identified by PW1 himself. The original Will has been produced in Section 145 proceedings. R. C Krishnammal has based her case on the will in 145 proceedings and in the subsequent suits, viz., OS No.71 of 1958 and OS No.36 of 1963. The respondents however admitted to a compromise though an issue was framed regarding the Will. We are reminded that the Will is a registered document and that registration is a solemn act. It is the contention of the D appellants that the wording in the Will and the surrounding circumstances clearly show the intention of Rangaswami Naidu to be that he wanted some properties of his estate to go to his sisters’ sons with whom he was very affectionate. Our attention is drawn to the reasoning of this Court in K.S. Palanisami E (Dead) through LRs & Ors. v. Hindu Community in General and Citizens of Gobichettipalayam& Ors.11. It is the further submission of the appellant that R. Krishnammal, the widow has only limited estate during her lifetime which does not blossom into absolute right under Section 14(1) of the Hindu Succession Act. It is contended that the primary relief sought by R. F Krishnammal in OS No.71 of 1958 was itself based on the right under the Will. She never claimed under Section 14(1) of the Hindu Succession Act. She knew the intention of the testator and accepted it by her conduct. The property bequeathed to her was only limited estate with onerous condition that she has G to maintain sisters etc. and on her death the property was to devolve upon her sisters’ sons. Considerable reliance was placed upon the judgment of this Court in Sadhu Singh’s case 9 2008 (7) SCC 46 10 1980 (2) SCR 1130 11 H 2017 (13) SCC 15

V. KALYANASWAMY (D) BY LRS. & ANR. v. 685 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

(supra). Taking us through the Will the appellants contend that A the testator has provided other properties for the maintenance of Krishnammal, and therefore, it could not be argued that the plaint schedule property which are included in the Will were given in lieu of her right to maintenance which should become absolute after passing of the Hindu Succession Act. Reliance B is placed on the following judgments: (1) Shivdev Kaur (Dead) by LRs & Others v. R. S. Grewal12 (2) Sharad Subramanyan v. Soumi Mazumdar & Ors.13and (3) Gaddam Ramakrishnareddy & Ors. V. Gaddam Rami Reddy & Ors.14 C

36Copy pinpoint36. As regards the finding of the High Court that the suit filed by the legatee is barred under Order II Rule 2, it is contended that though there is a vested right under Section 119 (1) of the Indian Succession Act in favour of the appellants (legatees), the cause of action to sue in respect of the bequeathed property arose only after the death of D R. Krishnammal. O.S. No.36 of 1963 was a protective action to deal with R. Krishnammal purporting to alienate certain properties. Plaintiffs- appellants in OS No.36 of 1963 were not parties to the suit in 1958 and the compromise in OS No.71 of 1958 will not bind the appellants. R. Krishnammal, the widow did not have any right to deal with the properties which were given to her by way of life estate. She could not have entered into compromise without including the appellants. The decree is described as void ab initio and therefore, there is no need to declare that decree or any transaction thereon as such. Still further it is contended that perusal of the plaint in OS No.36 of 1963 would show that plaintiffs have reserved their rights in respect of the rest of the properties to initiate separate action. The respondents have agreed for a declaration that Krishnammal had only a life estate and they are therefore estopped from contending that R. Krishnammal had absolute right. The cause of action arose only after 1977 on the death of R. Krishnammal. Reliance is placed on judgments of this Court in Bay Berry Apartments G Pvt. Ltd. & Ors. Shobha & Ors. 15 and Usha Subarao v. B.E. Vishveswariah16. It is contended that Krishnammal did not have any 12 2013 (4) SCC 636 13 2006 (8) SCC 91 14 2010 (9) SCC 602 15 2006 (13) SCC 737 H 16 1996 (5) SCC 201

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A right to give away the properties which was not for any legal necessity or family necessity. The transaction itself has been challenged as fraudulent and collusive in OS No.89 of 1983 and an issue was also framed. A contention is also taken that the compromise decree was not registered and therefore could not convey any title to the respondents. It is also submitted that the challenge made to the will in the year 1982 is barred by limitation. It is further contended that respondents are estopped from challenging the validity of the will in the light of admitting the existence of the Will and compromising the suits OS No.71 of 1958 and OS No.36 of 1963. The High Court erred in decreeing OS No.649 of 1985 without declaring earlier compromise decree between the same parties in OS No.71 of 1958 and OS No.36 of 1963 as null and void. Any such declaration would be barred by limitation in the year 1982. Under the decree in OS No.36 of 1963 R. Krishnammal had only the life estate and Section 14(2) would apply. The right to the property by survivorship which was set up by the respondents was negatived by the trial court and no appeal was carried against the same. It is also the submission of the appellants that even on the death of Krishnammal on the basis that she had acquired absolute right under Section 14(1), the brothers and sisters’ sons were equally entitled to 1/8th share in the entire 50 per cent of the property which fell to the share of Rangaswami Naidu.

37Copy pinpoint37. We also heard Shri V. Giri, learned senior counsel for the appellants. Shri Nagamuthu, learned senior counsel canvassed contentions for the transferees from the 1st defendant in OS No.89 of 1983 and complained that their contentionshas not been considered and accepted.

38Copy pinpoint38. We notice the following submissions by Mrs. V. Mohana, F learned Senior Counsel on behalf of the appellants. There are sufficient pleadings in regard to the division of status. The newspaper in “Navva India” dated 10.05.1955 has never been disputed. She drew our attention to the evidence of the Executor in the proceedings under Section 145 of the CrPC. The declaration was communicated. Rangaswami Naidu had G the capacity to bequeath the properties. The brothers were dealing with the properties separately. In this regard, reliance is placed upon judgments of this Court in Hardeo Rai v. Sakuntala Devi and others17. It is not necessary to prove partition by metes and bounds. The original Will was produced before the Magistrate in proceedings under Section 145 of the 17 H (2008) 7 SCC 46

V. KALYANASWAMY (D) BY LRS. & ANR. v. 687 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

CrPC. The Will is a registered document. The Will has been proved under Section 33 of the Evidence Act. The Magistrate Court is a Court. Reliance is placed on Krishnayya Surya Rao Bahadur Garu and others (Defendants) v. Venkata Kumara Mahitathi Surya Rao Bahadur Garu18. The earlier proceedings in O.S. No. 71 of 1958 is not binding upon the appellants. R. Krishnammal did not have the right to deal with the properties. The Decree in O.S. No. 71 of 1958 was void. Appellants have never abandoned their rights. Principle of Order II Rule 2 of the CPC will not apply. Though the appellants had vested rights they could not have filed the case for getting possession till the death of R. Krishnammal. As per the compromise Decree in O.S. No. 71 of 1958, rest of the properties were in the control of the plaintiffs. Therefore, C they have reserved their right in O.S. No. 36 of 1963. The issue of Order II Rule 2 of the CPC was never argued nor any finding was given by the High Court. In the Suit for Partition, there is a prayer for possession. Anyways, the partition could be effected only when the final Decree Proceedings are over. The question of limitation was never agitated by the respondents, and at any rate, the period begins to run only in the year

1977. The Will is not in lieu of maintenance. The case falls under Section 14(2) of the Hindu Succession Act. Attempt has been made to distinguish decision of this Court in Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe and others (supra). Shri Om Prakash, learned Senior Counsel in his written submission in Civil Appeal Nos. 1027 to 1032 of 2013, would contend, inter alia, that division and severance of the joint family stood proved. He lays store by the judgments of this court in Addagada Raghavamma and another v. Addagada Chenchamma and another19, Janki Narayan Bhoir v. Narayan Namdeo Kadam20 and Hardeo Rai (supra). The Will is covered under Section 63 of the Evidence Act and Section 68 of the F Indian succession Act. The right in the joint family properties, devolving by survivorship, is negatived by the all the courts below and there is no appeal against such finding and there is no cross appeal. CIVIL APPEAL NO. 1039-1044 OF 2013 In the Written Submission, it is sought to be contended that the G challenge to the Will made by the plaintiffs (in O.S. No.649 of 1985) in the year 1982 is barred by limitation. They are estopped in view of the

18 AIR 1933 PC 202 29 AIR 1964 SC 136 20 (2003) 2 SCC 91 H

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A compromise in O.S. No. 71 of 1958 and O.S. No. 36 of 1963. Without declaring Compromise Decrees, in the earlier two cases null and void, O.S. No. 649 of 1985 could not have been decreed. Such a relief is barred by limitation in the year 1982. Section 14 (1) of the Hindu Succession Act does not apply in view of the Compromise Decree in O.S. No. 36 of 1963. The case based on survivorship was rejected by the Trial Court and, against the same, no appeal was filed by the plaintiffs. If the finding under Section 14(1) is confirmed, then, on the death of R. Krishnammal, by operation of law, the brother’s and sister’s son are equally entitled to 1/8th share in the entire 50 per cent of the property which fell to the share of V. Rangaswami Naidu. Since, the plaintiffs had knowledge of the Will in the Section 145 of the CrPC proceedings, they were not entitled to challenge the Will in 1982.

39Copy pinpoint39. In C.A.No.1045-1050 of 2013, the appellants are among defendants 13 to 34 in OS No.89 of 1983. They are also defendants in the other suit (O.S. No. 649 of 1985). It is their contention that they purchased 7 acres and 4 cents from A. Alagiriswami who is defendant No.1 in OS No.89 of 1983 and also the first defendant in OS No.649 of

1985. The said purchase was prior to the filing of the suit and after the Hindu Succession Act, 1956 came into force. After referring to Section 14(1), it is contended that the right given to R. Krishnammal for a lifetime became her exclusive right after the said Act came into force. After E referring to Section 14(2), it is pointed out that even according to Lakshmiah Naidu on their contention that the will is not genuine and there was no partition, there would not be any restriction under Section 14(2) for having absolute right by R. Krishnammal under Section 14(1). Referring to the Compromise Decree in OS No.71 of 1958, it is stated F that when there was no objection by the sons and grandsons of Lakshmiah Naidu now they cannot raise dispute about partition in 1932 and the execution of the will. Upon the death of Rangaswami Naidu in 1955 and R. Krishnammal on 30.4.1977 under oral partition between the family of the sister of Rangaswami Naidu, the property purchased by the appellants came into possession of A. Alagiriswami from whom they purchased. G None of the parties till date challenged their sale deed and the sons of Lakshmiah Naidu filed O.S. No.649 of 1985, after 3 years of sale without even challenging the sale. Interference by the High Court with the findings is complained against.

40Copy pinpoint40. Mr. Guru Krishnakumar, learned senior counsel appearing on behalf of the branch representing Lakshmiah Naidu submitted that the

V. KALYANASWAMY (D) BY LRS. & ANR. v. 689 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

declaration B1 is shrouded in serious doubt. The discrepancy in the date viz., that it is dated 12.05.1955 and not 10.05.1955 looms large. Even while accepting the document before this Court, the date of B1 was conspicuously left out. The cross examination of PW1 and the reliance placed on the same is misplaced. Secondly, it is further contended that B1 is an unsigned document. No witness has deposed that the testator arranged for its publication. Further, it is contended that the declaration seeks to reaffirm the alleged partition of the year 1932 which partition has not been believed by three courts. B1 could not be believed independent of the alleged partition. Once the alleged partition was disbelieved B1 would have no legs to stand on. It is contended that the words relied upon by the appellants is in past continuous, insofar as it says “I also hereby make a declaration of my divided and separate status”, it was not to be from that date that the severance was to take effect. The findings of the first appellate court are attacked as being perverse for the reason that response to B1 and the rejoinder to the same which were marked as B43 and B44 in the proceedings under Section 145 D were not exhibited in the present proceedings. B2 order does not reveal any findings on the same. It is further contended that partition is used in a narrow and wide sense. B1 even if relied upon would only result in separation of status but not actual partition by metes and bounds. Reliance is placed in Addagada Raghavamma v. Addagada Chenchamma21. The position at law is pointed out to be that the members of the undivided E family even after a unilateral communication of severance of status must agree to a particular portion of the property being earmarked to a member. Reliance is placed on the judgment of this Court in Nanni Bai & Ors. V. Gita Bai Rama Gunge22 and Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe & Ors.(supra) besides Kalyani (Dead) by LRs v. Narayanan F and Others(supra). It is pointed out that in Addagada Raghavamma case(supra), this Court did not consider the specific issue as to whether specific items of property could be unilaterally willed without the consent of the other coparceners or without partition by metes and bounds. The non-production of the original will is made a ground of attack. The finding of the trial court that the original will was produced in Section 145 G proceeding is also pointed out to be the product of error. No steps were taken to produce the Will. The reliance placed on B7 deposition which is the deposition in proceedings under Section 145 of the CrPC is impugned 21 AIR 1964 SC 136 22 1959 SCR 479 H

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A as being not binding as the proceedings under Section 145 could not be the forum for establishing the Will. Adjudication under the said provision could not be used as conclusive evidence to prove the Will in view of Section 41 of the Evidence Act. Reference is also made to Section 42 of the Evidence Act. It was further contended that the ingredients of Section 69 of the Evidence Act have not been met. It is pointed out that without conditions of Section 69 being not met for the purposes of Section 145 CrPC, the same evidence could not be used to rely upon for the purpose of Section 68 of the Evidence Act. Further it is contended that the evidence which did not fulfil the requirements of Section 68 could not be used to prove the Will under Section 69 of the Evidence Act. Even otherwise, it is contended B7 falls short of the requirement when there is no evidence to prove the signature of the testator, the original Will not having been produced. The exercise should not be undertaken as DW1 does not even know the signature of the testator. It is pointed out that suspicious circumstances surrounding the Will has not been explained. The argument that Will could be taken as a declaration of the severance of status is disputed. It is pointed out that the Will was communicated only with the proceedings under Section 145 which was after the death of the Rangaswami Naidu on 01.06.1955 on which date the partition had opened under the Mitakshra Law. It is also contended that the Section 33 of the Evidence Act does not apply. This is for the reason that under the explanation to Section 33 it would apply where a person claims under the party in the other proceedings. It is contended that the appellant (the plaintiff in OS No.89 of 1983 apparently) has not claimed under Krishnammal. It is further contended that Section 14(1) of the Hindu Succession Act would apply.

41Copy pinpoint41. Learned senior counsel appearing on behalf of the respondent- Shri Raghavachari, contended as follows: There was no partition. Paper publication dated 12.05.1955 spoke of an earlier division. The unilateral declaration is unacceptable. Suspicious circumstances include testator being bed ridden being G in his last days as he was suffering from the cancer of the food pipe and was being fed by a tube and not being conscious are referred to. The question of letting in secondary evidence did not arise. The alleged Will contains inked portion and interlineations. It is further contended that OS No.71 of 1958 was filed by the widow R. Krishnammal for partition of the joint family properties H

V. KALYANASWAMY (D) BY LRS. & ANR. v. 691 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

in which suit she had enlisted all 93 items of the joint family properties and claimed half share. The suit was compromised and she accepted 16 items and confirmed rights to 77 items in favour of the sons of Lakshmiah Naidu. R. Alagiriswami and V. Kalyanaswami (among the appellants before us) filed OS No.36 of 1963 and the children of Lakshmiah Naidu were also made parties. The right of R. Krishnammal to enter into a compromise in OS No.71 of 1958 was challenged as according to them she had only a life interest. R. Krishnammal, the defendant contended that she had absolute right under Section 14(1) and hence the authority to enter into compromise. Entering into a compromise in OS No.36 of 1963 by taking two items out of 16 items after the lifetime of R. Krishnammal meant that the plaintiffs in OS No.36 of 1963 accepted the superior rights of R. Krishnammal and they gave up their claim and accepted the sale to third parties effected by R.Krishnammal of 5 items. Reference is also made to OS No.732 of 1981 filed by the plaintiff also in OS No.36 of 1963. In D the said suit plaintiffs have sought to divide the two items which they secured in OS No.36 of 1963. Our attention is drawn to the pleading in OS No.732 of 1981 to the effect that the properties belong to one R. Krishnammal which was allotted to her share in OS No.71 of 1958 and the said properties were in her possession till her death. In other words, it is pointed out that right was not set E up under the will. The right was abandoned in 1974 and which abandonment was affirmed in 1981 thus attracting the principles of estoppel, acquiescence and waiver. The contention is also taken that OS No.89 of 1983 is hopelessly barred by limitation even proceeding on the basis that there is a Will and that will is true, F Section 14(1) of the Hindu Succession Act would apply.

42Copy pinpoint42. Shri Mohan Parasaran, Senior Advocate would submit inter alia that there is no pleading for the case of severance. The Will was not proved in accordance with law. The proceedings under Section 145 of the CrPC were summary in nature and not inter-parties. The subject matter was possession. Therefore, the evidence adduced in the said G proceedings should not be used. The right available to Krishnammal was under Section 14(1). The bar under Order II Rule 2 applied.

43Copy pinpoint43. Smt.Chithra Sampath, learned senior counsel appearing for some of the respondents contended that plaint schedule property was in H

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A the possession of the respondents (the children of Lakshmiah Naidu) right from the time of proceeding under Section 145. While this was the position yet there is no prayer for recovery of possession in OS 89 of

1983. Any such relief would be barred by limitation.Relying on the judgment of this Court in (2007) 12 SCC 695, it is contended that since there is no pleading regarding division of status is O.S. No. 89 of 1983 B and in the Written Statement in O.S. No. 649 of 1985, in spite of the specific plea of the respondents in O.S. 649 of 1985 that there was no division, no amount of evidence can be looked into. There is no issue framed regarding division. The Appellate Court has relied on documents not filed in these proceedings. The content of the same was not known C to the parties as they were not discussed and findings rendered. [This is with reference to the Order passed, Exhibit-B2]. The proceedings under Section 145 of the CrPC are summary in nature and do not bind the Civil Court. There is no communication to bring about a division of status prior to the death. Reliance is placed on Madhusudan Das v. Narayanibai (Deceased) by Lrs. and others23. It is not a case where the Will is lost. D Relying on Benga Behera and another v. Braja Kishore Nanda and others24, it is contended that only after pleading and proving loss of original Will beyond reasonable doubt, that secondary evidence could be adduced. In regard to reliance placed on B7, our attention is drawn to the Judgment of this Court in Sashi Jena and others v. Khadal Swain and E another25. It is contended that the issue involved in the proceedings under Section 145 of the CrPC were related to possession and the issue of Will by Rangaswami was not considered, and therefore, two conditions in Section 33 of the Evidence Act are not met. The other condition is obviously the first condition in the proviso on the basis that that the plaintiff in O.S. No. 89 of 1983 is not tracing his title through the parties in Section F 145 proceedings. Suspicious circumstances, including even refusal by the Testator as reflected in X1, to prefixing his thumb impression pointing to his mental condition, are pointed out. Incorrect statements in the Will are enlisted to impugn the Will. The case falls under Section 14(1) of the Hindu Succession Act. Conduct of the plaintiff in O.S. No. 89 of 1983 in G filing O.S. No. 732 of 1981, on the basis it was filed, renders it a fit case for applying the principle in Krishna Beharilal v. Gulabchand26 and S. Shanmugam Pillai and others v. K. Shanmugam Pillai and others27. This 23 (1983) 1 SCC 35 24 (2007) 9 SCC 728 25 (2004) 4 SCC 236 H 26 (1971) 1 SCC 837 27 (1973) 2 SCC 312

V. KALYANASWAMY (D) BY LRS. & ANR. v. 693 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

is besides pointing out the effect of filing O.S. No. 1936 of 1963 and A endorsement in the Plaint that no relief was claimed against the other defendants, thus, making it a case where no right was reserved in O.S. No. 36 of 1963 to agitate their rights in respect of other properties in the Will. THE PROPERTY AT STAKE B

44Copy pinpoint44. The property in dispute, in both the Suits, is the same. In the Will dated 10.05.1955, there were sixteen items. In O.S. No. 71 of 1958, R. Krishnammal was conferred with absolute rights in respect of seven items. The property involved in O.S. No. 36 of 1963 also related to the seven items, which figured in compromise Decree in O.S. No. 71 of C 1958, wherein R. Krishnammal was conferred absolute rights. O.S. No. 632 of 1981 relates to items Nos. 5 and 6, in O.S. No. 36 of 1963. The items which are scheduled in the present Suits are the items covered by the Will dated 10.05.1955 other than the seven items, out of which, four were alienated and one was acquired. As far as O.S. No. 71 of 1958, filed by R. Krishnammal, is concerned, since she had an alternate relief D claiming partition, it encompassed the entire property belonging to the coparcenary consisting of 93 items. The extent of property involved in the cases before us is a little over 36 acres. THE EFFECT OF ORDER II RULE 2 OF THE CPC E

45Copy pinpoint45. The contention raised by the respondents is, inter alia, that O.S. No. 89 of 1983 is barred by Order II Rule 2 of The Code of Civil Procedure, 1908 (hereinafter referred to as ‘the CPC’, for short) CPC. This is for the reason that when two out of the four appellants have instituted O.S. No. 36 of 1963, they have scheduled only seven items in the said Suit. It was open to the appellants to claim the relief which they have claimed in the present Suit. Having not sued in respect of the items of properties other than the items scheduled in O.S. No. 71 of 1958, they are barred under Order II Rule 2 of the CPC. This is countered by the appellants by pointing out two aspects. Firstly, it is contended that under the Will, though they had vested right, O.S. No. 36 of 1963 had to be instituted when R. Krishnammal-the widow of Rangaswami Naidu had made preparations for alienating the items scheduled in O.S. No. 36 of 1963 and which were covered by the Decree in O.S. No. 71 of 1958. Secondly, it is pointed out by the appellants that under the Will, R.

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A Krishnammal-the Widow had a life estate in respect of the plaint scheduled properties. Consequently, as long as she was alive, a Suit of the nature, as is filed, viz., O.S. No. 89 of 1983, could not be filed, when under the Will, R. Krishnammal had the right. It is only upon her death that under the Will, a suit of the nature filed by them, could have been filed. R. Krishnammal died only in 1977. B

46Copy pinpoint46. In order that provisions of Order II Rule 2 of the CPC apply, there must be identity of cause of action. Thus, on the one hand, while it was open to the appellants to institute a protective action, as was done by filing O.S. No. 36 of 1963, in respect of the properties scheduled threin. On the basis of the cause of action projected in the said Suit, it C would certainly not be a bar to the prosecution of the present Suit.

47Copy pinpoint47. Order II Rule 2 of the CPC has been a subject matter of a large number of decisions of this Court. Order II Rule 2 (2) of the CPC postulates a situation where a plaintiff omits to sue in respect of any portion of his claim or intentionally relinquishes any portion of his claim. D Then, he is debarred from suing in respect of the portion so omitted or relinquished. A plaintiff entitled to more than one relief arising from the same cause of action, can do two things. He may sue in respect of all the reliefs arising from the same cause of action in the same suit. He may, if he omits to sue for one or more of the reliefs open to him under the same cause of action, seek leave of the court to sue for all such reliefs, and if the court grants such leave, then, he may institute a suit, though based on the same cause of action in the earlier suit, in a fresh suit. The effect of not seeking the leave of the court, however, in regard to any of the reliefs, which it was open to him to sue for on the same cause of action, is that, he is barred from suing for any other reliefs so omitted. The difference between Order II Rule 2(2)and Order II Rule 2(3) of the CPC may be noticed. The law contemplates a distinction between a case where a claim arising out of the cause of action is either intentionally relinquished or omitted to be sued upon. Such a claim cannot be the subject matter of a fresh suit. However, when more than one reliefs are available stemming from the same cause of action, then, seeking further reliefs than sought in the first suit, except where leave is obtained, would be barred. However, present the grant of leave by the court, his subsequent suit seeking the reliefs which were originally not sought but for which leave is granted, is permissible. The principle of this provision is actually captured in Order II Rule 2 (1) of the CPC H which is that every suit is to include the whole of the claim which arises

V. KALYANASWAMY (D) BY LRS. & ANR. v. 695 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

out of the cause of action and which the plaintiff is entitled to make. It A further declares that it is open to a plaintiff to omit any portion of the claim. However, the consequences of the same are declared in Order II Rule 2 (2) of the CPC. We notice that similar views have been expressed in the decision of this Court in Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions (P) Ltd.2013 (1) SCC 625. In paragraph 9, it was held as follows: “9. Order 2 Rule 1 requires every suit to include the whole of the claim to which the plaintiff is entitled in respect of any particular cause of action. However, the plaintiff has an option to relinquish any part of his claim if he chooses to do so. Order 2 Rule 2 contemplates a situation where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make. If the plaintiff so acts, Order 2 Rule 2 CPC makes it clear that he shall not, afterwards, sue for the part or portion of the claim that has been omitted or relinquished. It must be noticed that Order 2 Rule 2(2) does not contemplate omission or relinquishment of any portion of the plaintiff’s claim with the leave of the court so as to entitle him to come back later to seek what has been omitted or relinquished. Such leave of the court is contemplated by Order 2 Rule 2(3) in situations where a plaintiff being entitled to more than one relief on a particular cause of action, omits to sue for all such reliefs. In such a situation, the plaintiff is precluded from bringing a subsequent suit to claim the relief earlier omitted except in a situation where leave of the court had been obtained. It is, therefore, clear from a conjoint reading of the provisions of Order 2 Rules 2(2) and (3) CPC that the aforesaid two sub-rules of Order 2 Rule 2 contemplate two different situations, viz., where a plaintiff omits or relinquishes a part of a claim which he is entitled to make and, secondly, where the plaintiff omits or relinquishes one out of the several reliefs that he could have claimed in the suit. It is only in the latter situations where the plaintiff can file a subsequent suit seeking the relief omitted in the earlier suit proved that at the time of omission to claim the particular relief he had obtained leave of the court in the first suit.”

48Copy pinpoint48. In this case, it is true that when O.S. No. 36 of 1963 was instituted, the earlier Suit brought by R. Krishnammal, viz., O.S. No. 71 H

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A of 1958, had culminated in a compromise Decree. A perusal of the plaint itself would show that the plaintiffs in O.S. No. 36 of 1963 have adverted to the compromise in O.S. No. 71 of 1958. They have averred in paragraph 7 of the plaint that under the compromise, R. Krishnammal was given the property scheduled in the said Suit (Suit No. O.S. No. 36 of 1963) in lieu of the properties comprised in the Will and some cash. B The rest of the properties comprised in the Will were given-up by her in favour of the respondents (the sons of Lakshmiah Naidu) it is averred. Thereafter, it is averred that the defendants claim, i.e., R. Krishnammal claimed absolute title to the properties scheduled in the plaint and which was unsustainable both in law and facts. It is contended further that the entire compromise Decree, more especially, conferring the absolute title to the suit properties therein in R. Krishnammal, was not valid and binding on the two plaintiffs and Defendants 3 and 4, who are the appellants before us. It is further averred that the appellants have vested rights in the properties. They were not impleaded in the suit (apparently, O.S. No. 71 of 1958). It was averred that R. Krishnammal did not represent the interest of the appellants. In paragraph-8 of the Plaint, it is averred that R. Krishnammal could not enlarge her rights by any compromise to which the plaint items were, only some items of the properties comprised in the Will and R. Krishnammal would, in law, be entitled to and could claim only the same interest, i.e., a life estate that she had under the E Will. Thereafter, there is reference to a Notice dated 05.10.1959 to R. Krishnammal that she had only a life estate and to desist from alienating them. R. Krishnammal is alleged to have sent a reply containing untenable allegations. It is averred that she claimed, inter alia, that the appellants would not be entitled to claim anything under the Will and she was entitled to deal with the properties in any manner she liked. It is further averred that R. Krishnammal was then attempting to create nominal documents in respect of the suit properties to defeat the rights of the appellants. Paragraph-11 of the Plaint being significant, may be noticed: “11. The Will of R.V. Rangaswami Naidu comprised other properties also other than those described herein which under the compromise decree have been given by the 1st defendant to her husband’s brother’s sons. The plaintiffs reserve their rights to respect of those properties to a separate action.”

49Copy pinpoint49. It is accordingly that O.S. No. 36 of 1963 was filed seeking a declaration that R. Krishnammal had only a life estate without any powers H

V. KALYANASWAMY (D) BY LRS. & ANR. v. 697 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

of alienation and the appellants have a vested remainder in the said A properties under the Will. The word ‘said’ obviously refers to the items scheduled in OS No.36 of 1963.

50Copy pinpoint50. The Suit (O.S. No. 89 of 1983) is fundamentally premised on the death of R. Krishnammal in 1977 and the blossoming of the full rights of the appellants under the Will. In other words, R. Krishnammal B having a life estate under the Will was alive when O.S. No. 36 of 1963 was filed. The absolute right under the Will, in favour of the appellants, dawned only with the death of the life estate holder. In this context, no doubt, we must clarify one aspect. Section 119 of the Indian Succession Act, 1925 (hereinafter referred to as the “Indian Succession Act’, for short) deals with the date of vesting of legacy when, inter alia, possession is postponed. The provision with the relevant illustration reads as follows: “119. Date of vesting of legacy when payment or possession postponed.—Where by the terms of a bequest the legatee is not entitled to immediate possession of the thing bequeathed, a right to receive it at the proper time shall, unless a contrary intention appears by the Will, become vested in the legatee on the testator’s death, and shall pass to the legatee’s representatives if he dies before that time and without having received the legacy, and in such cases the legacy is from the testator’s death said to be vested in interest. E Explanation.—An intention that a legacy to any person shall not become vested in interest in him is not to be inferred merely from a provision whereby the payment or possession of the thing bequeathed is postponed, or whereby a prior interest therein is bequeathed to some other person, or whereby the income arising F from the fund bequeathed is directed to be accumulated until the time of payment arrives, or from a provision that, if a particular event shall happen, the legacy shall go over to another person. Illustrations: (i) xxx xxx G (ii) xxx xxx (iii) A fund is bequeathed to for life, and after his death to B. On the testator’s death the legacy to becomes vested in interest in B. xxx xxx xxx xxx” H

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51Copy pinpoint51. It is also apposite that we notice Section 19 of the Transfer of Property Act, 1882 (hereinafter referred to as ‘the TP Act’, for short). Section 19 deals with vested interest. It reads as follows: “19. Vested interest.—Where, on a transfer of property, an interest therein is created in favour of a person without specifying B the time when it is to take effect, or in terms specifying that it is to take effect forthwith or on the happening of an event which must happen, such interest is vested, unless a contrary intention appears from the terms of the transfer. A vested interest is not defeated by the death of the transferee before he obtains possession. C Explanation.—An intention that an interest shall not be vested is not to be inferred merely from a provision whereby the enjoyment thereof is postponed, or whereby a prior interest in the same property is given or reserved to some other person, or whereby income arising from the property is directed to be accumulated until the time of enjoyment arrives, or from a provision D that if a particular event shall happen the interest shall pass to another person.”

52Copy pinpoint52. Vested interest is different from the contingent interest. The two have vastly different consequences. The death of R. Krishnammal being a certain event, the interest of the remaindermen is a vested interest. E The commonality between Section 19 of the TP Act and Section 119 of the Indian Succession Act, and which is apposite to the facts of this case, is as follows: When under the Will, a life estate was created in favour of R. Krishnammal with an absolute remainder in favour of the appellants, the legacy in favour of the appellants became vested from the time of death of the testator. The possession and the enjoyment of the property, however, under the Will, was the domain of the life estate holder, viz., R. Krishnammal as long as she was alive. She, however, had no right to enlarge the boundaries of her right under the Will. This is, no doubt, subject to the impact of supervening Legislation which will be discussed later. By her unilateral act or by even joining together with the third party, it would not be open to life estate holder to defeat the rights of the remainder men. The significance of a case being covered under Section 119 Illustration (III), of the Indian Succession Act, is that with the death of the Testator, the right in the property becomes vested with the H

V. KALYANASWAMY (D) BY LRS. & ANR. v. 699 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

remainder men, from the time of death of the Testator. In other words, upon the death of the legatee under the Will, in whom the absolute right is vested after the transient possession and enjoyment of the life estate holder, a heritable right, which, in fact, arose at the time of the death of the testator, would confer legal rights upon the heirs of the absolute owner under the Will when succession to his estate opens, should he not wish to leave a Will behind. Though the right is vested in the property, the enjoyment of the property with the absoluteness of a full owner under the Will could be done by the appellants only after the death of R. Krishnammal. Having thrown light upon the words ‘absolute rights’ in the context of Section 119 of the Indian Succession Act, 1925, it is this right which was sought to be made subject matter of a Decree for declaration and partition. It is clear that in the year 1963 or till the death of R. Krishnammal, the rights as sought to be enforced, did not inhere with the appellants as explained. They could not have sought a partition of the plaint scheduled properties while R. Krishnammal was alive.

53Copy pinpoint53. We listen to the words of this Court again in Virgo Industries D (Eng.) Private Limited v. Venturetech Solutions Private Limited28 found in paragraph-11 of the judgment: “11. The cardinal requirement for application of the provisions contained in Order 2 Rules 2(2) and (3), therefore, is that the cause of action in the later suit must be the same as in the first suit. …”

54Copy pinpoint54. Thus, be it the omission or intentional relinquishment of a claim arising out of a cause of action under Order II Rule 2(2) or not seeking a relief under Order II Rule 2 (3), the fatal consequences they pose, will arise only if the cause of action is the same. Though we are not oblivious to the fact that the plaintiffs in O.S. No. 36 of 1963 could have sought a declaration about the compromise Decree in O.S. No. 71 of 1958, qua all the properties covered under the Will, we would think that, in the facts of this case, the cause of Action in O.S. No. 36 of 1963 and the present Suit (O.S. No. 1989 of 1983) are clearly distinct, having regard to what we have discussed and having regard to the factum of the date of the death of R. Krishnammal. It is significant to note that the cause of action in OS No.36 of 1963 was the threat of alienation of the items scheduled therein. We would perceive O.S. No. 36 of 1963 more as a

28 (2013) 1 SCC 625 H

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A protective action by persons who had vested interest in the property under Section 119 of the Indian Succession Act, 1925 (hereinafter referred to as ‘the Indian Succession Act’, for short). We must also not be unmindful of the principle that cause of action is not to be confused with the relief which is sought. It has more to do with the basis for the relief which is sought. We are only reiterating in this regard, what the B Privy Council has laid down, when it said “it refers to the media upon which the plaintiff asked the court to arrive at a conclusion in his favour” (See Mohammad Khalil Khan v. Mahbub Ali Mian29). THE IMPACT OF THE PROCCEDINGS AND THE DECREE PASSED IN O.S. NO. 71 OF 1958 AND O.S. NO. 36 OF 1963 AND C O.S NO. 732 OF 1981 ESTOPPEL, WAIVER, ACQUIESCENCE

55Copy pinpoint55. O.S. No. 71 of 1958 was a Suit filed by R. Krishnammal. Defendants Nos. 1 to 4 were sons of Lakshmiah Naidu. The Fifth D Defendant was the Executor of the Will. R. Krishnammal lay store by the Will executed by her late husband V. Rangaswami Naidu. In the alternate, she also claimed a Decree for Partition, virtually giving-up her right under the Will and on the basis that V. Rangaswami Naidu died intestate. The matter did not go to trial. It ended in a compromise. The substance of the compromise is, a few of the items mentioned in the E Will, seven items were recognised as absolute properties of R. Krishnammal even though, under the Will, she had only a limited right over those items. R. Krishnammal, for her part, under the compromise Decree gave-up her rights in respect of the rest of the properties. We notice the argument of V. Raghavachari, learned Senior Counsel for the respondents, that there were ninety-three items which would have been impacted if a Partition Decree, as sought by R. Krishnammal, had been passed. In other words, there was a larger body of properties, apparently which belonged to the joint family of the V. Rangaswami Naidu and Lakshmiah Naidu. The properties covered by the Will were only a much smaller part of the larger body of property, which belonged to the joint family. There is evidence to suggest that as found by the First Appellate Court that R. Krishnammal may not have been in a position to demand her full rights as such and she was satisfied with what she could get. But what is far more relevant is, the appellants were not parties to the

29 H AIR 1949 PC 78

V. KALYANASWAMY (D) BY LRS. & ANR. v. 701 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

compromise. Appellants were not tracing their rights under R. A Krishnammal. Appellants were given an absolute right under the Will executed by their uncle V. Rangaswami Naidu. The bequest in their favour created a vested interest within the meaning of Section 119 of the Indian Succession Act, 1925. Of course, the enjoyment and possession of the property was to await the death of R. Krishnammal under the B Will. It is quite clear that R. Krishnammal could not have also enlarged the rights of the branch of Lakshmiah Naidu, once she accepted the Will, for she had only a life estate over the properties covered under the Will. The appellants were also not bound by her acts in entering into a compromise seeking to confer absolute rights qua those properties, which were subject matter of the Will, in respect of which, they had the right to be enjoyed after the death of R. Krishnammal.

56Copy pinpoint56. O.S. No. 36 of 1963 came to be filed by two out of the four appellants, who are Legatees under the Will. They sought a declaration to the effect that R. Krishnammal could not enlarge her right and she could not alienate the properties (the very seven items, which, under the compromise Decree of O.S. NO. 71 of 1958, were recognised as her absolute properties). It is true that the plaintiffs in O.S. No. 36 of 1963 did not choose to include the plaint schedule properties in the present Suit and seek a declaration qua them. There are two aspects to it, which we must bear in mind. Firstly, the cause of action for filing O.S. No. 36 of 1963 was alleged to be the apprehension that R. Krishnammal was about to alienate the seven items over which she acquired absolute rights under O.S. No. 71 of 1958 (In fact, it was alleged that one item was alienated). Secondly, we have already noticed paragraph-11 of the Plaint. Therein, the plaintiffs have revealed their mind to be that they intend to pursue their right qua other properties apparently which are the plaint schedule properties in O.S. No. 89 of 1983. We have already indicated that the bar of Order II Rule 2 of the CPC will not apply. There is some merit in the contention of the appellants that the Decree passed in O.S. No. 36 of 1963 did involve watering down the terms of the compromise Decree in O.S. No. 71 of 1958. As on the date of the compromise in O.S. No. 36 of 1963, the position was that four, out of the seven items, had been alienated by R. Krishnammal, whereas, one property had been acquired by the Government. As regards Item Nos. 5 and 6 in the plaint schedule in O.S. No. 36 of 1963, the terms of the Will dated 10.05.1955, came to be reiterated. This is for the reason that in departure from the terms of the Decree in O.S. No. 71 of 1958, under which R. Krishnammal H

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A was conferred with the absolute rights in respect of Item Nos. 5 and 6, in regard to the very same items, under the compromise Decree in O.S. No. 36 of 1963, R. Krishnammal was only to enjoy the properties during her lifetime and without the power of alienation. In other words, the terms of the Will dated 10.05.1955 are seen reflected and reinforced by the compromise Decree in O.S. No. 36 of 1963. Both, in O.S. No. 71 of B 1958 and O.S. No. 36 of 1963, there is no adjudication by the court. As to what is the expediency which led the parties to enter into the compromise Decree, may not be decisive of the legal rights of the parties which we are called upon to pronounce. The action of the branch of Lakshmiah Naidu, who had also joined as parties in O.S. No. 36 of 1963, C and who were represented by the Counsel, may not obviate the need for proving the Will on the part of the appellants.

57Copy pinpoint57. The further aspect to be noticed is that in the compromise Decree in O.S. No. 36 of 1963, our attention is invited to the fact that the plaintiffs have stated that they are not seeking any relief against the other defendants which include the Lakshmiah branch. From this, it is sought to be contended that the interest of the branch of Lakshmiah Naidu, which stood secured under the compromise Decree of O.S. No. 71 of 1958, whereunder R. Krishnammal had given up her rights in regard to all properties other than the seven items over which she was conferred absolute rights, was left undisturbed and unimpeached. This conduct is emphasised before us, to point out that it would constitute a bar by way of principles, including estoppel and acquiescence for the appellants in instituting O.S. No. 89 of 1983 in regard to the plaint schedule properties over which R. Krishnammal had give-up all her rights in O.S. No. 71 of

1958. It is in this regard, we must bear in mind that even in the Plaint, in F O.S. No. 36 of 1963, the properties, other than the seven items, were admittedly not the subject matter of the Suit. More importantly, what is stated in the compromise is that no relief is claimed against the other Defendants in the said Suit. It is equally true that by the passing of the Decree in O.S. No. 36 of 1963, the interest of the Lakshmiah branch was not imperilled. This is for the reason that in regard to Item Nos. 5 G and 6 in O.S. No. 36 of 1963, over which the rights of R. Krishnammal were limited to a life estate with a taboo against alienation bringing it in tune with the terms of the Will under the Compromise did not matter for the branch of Lakshmiah Naidu. This is for the reason that as far as they were concerned, they were already bound by the compromise H Decree in O.S. No. 71 of 1958 whereunder R. Krishnammal had been

V. KALYANASWAMY (D) BY LRS. & ANR. v. 703 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

conferred absolute rights in regard to Item nos. 5 and 6, interalia, and they had lost all their rights. Therefore, the arrangement inter se between the appellants and R. Krishnammal, qua those properties, was of no concern to them. What they were interested in was the rest of the properties over which they were given absolute rights under the compromise Decree in O.S. No. 71 of 1958. The result is that on the one hand the terms of the Will came to be reiterated under the compromise Decree in O.S. No. 36 of 1963 qua Item Nos. 5 and 6. The Decree in O.S. No. 71 of 1958 was otherwise left untouched. We would, therefore, conclude that the passing of a Decree in O.S. No. 36 of 1963, is a matter which is entirely between the appellants and R. Krishnammal. In fact, the Lakshmiah Naidu branch, though made parties to the compromise, were not actually parties to the Decree. They have not signed as parties to the compromise Decree. Therefore, neither the appellants nor the respondents can derive any advantage from either the filing of O.S. No. 36 of 1963 or the passing of the compromise Decree therein. D The plaintiffs in O.S. No. 36 of 1963 have also filed O.S. No. 732 of 1981. The Lakshmiah branch (among the respondents in the appeals) were not parties. It was a Suit for partition of items 5 and 6 scheduled to O.S. No. 36 of 1963. It is obvious that they cannot rely upon principles of res judicata or constructive res judicata based on O.S. No.732 of 1981, being not parties to the said Suit. What, however, is sought to be E urged, is that the premise, on the basis of which the Decree in O.S. No. 732 of 1981 was passed, is completely incongruous with the cause of action in the present Suit. In other words, it is pointed out that in O.S. No. 732 of 1981, the case set-up was R. Krishnammal had rights over the property and this was inconsistent with the case set-up in the present F Suit. It was contended that the appellants were estopped from undertaking such a course of action. We could also deduce the following conduct. The cause of action in O.S. No. 732 of 1981 did involve drawing upon the rights secured (qua Item Nos. 5 and 6 in O.S. No. 36 of 1963) in O.S. No. 71 of 1958 whereunder the Lakshmiah branch acknowledged rights of R. Krishnammal who also gave-up her rights to properties which G included the plaint schedule items in the case. Though, we are not oblivious to the dimensions projected, we would not think that Right to Property, if otherwise is established in favour of the appellants, it would be lost. It cannot be treated as a case of abandonment of rights qua the plaint schedule properties (See in this regard Sha Mulchand & Co. Ltd. (In H

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A Liquidation), By Official Receiver, High Court, Madras v. Jawahar Mills Limited, Salem30 and Dr. Karan Singh v. State of J&K and another31. The respondents who were not parties to O.S. No. 732 of 1981,cannot set-up a case of estoppel. WHETHER THE WILL DATED 10.05.1955 HAS BEEN B PROVED [Sections 33, 68 and 69 of the Evidence Act]

58Copy pinpoint58. The Will in question is an unprivileged Will. The mode of making an unprivileged Will is provided in Section 63 of the Indian Succession Act. In order that a valid Will be made not only, it is necessary that the C Testator must execute the document but also the execution must be attested by at least two witnesses. What is required is not ordinary witnessing of a document but attestation which is as is provided in Section 63 of the Indian Succession Act.

59Copy pinpoint59. Section 68 of the Indian Evidence Act, 1872 (hereinafter referred to as ‘the Evidence Act’, for short) deals with proof of execution of a document required by the law to be attested. A perusal of the same makes it clear that in the case of a Will, being a document which is required to be attested by Section 63 of the Indian Succession Act, if there is an attesting witness alive and subject to the process of the court and capable of giving evidence, then, the Will can be proved only if one of the attesting witness is called for proving its execution.

60Copy pinpoint60. Section 69 of the Evidence Act, 1872, reads as follows: “69. Proof where no attesting witness found.—If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.”

61Copy pinpoint61. Though the expression used is ‘if no such attesting witness can be found, inter alia, it bears the following interpretation’. The word ‘such’ before ‘attesting witness’ is intended to refer to the attesting witness mentioned in Section 68 of the Evidence Act. As far as the expression ‘found’ is concerned, it would cover a wide variety of circumstances. It 30 AIR 1953 SC 98 31 H (2004) 5 SCC 698

V. KALYANASWAMY (D) BY LRS. & ANR. v. 705 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

would cover a case of an incapacity to tender evidence on account of A any physical illness. It would certainly embrace a situation where the attesting witnesses are dead. Should the attesting witness be insane, the word “found” is capable of comprehending such a situation as one where the attesting witness, though physically available, is incapable of performing the task of proving the attestation under Section 68 the B Evidence Act, and therefore, it becomes a situation where he is not found.

62Copy pinpoint62. In Babu Singh and others v. Ram Sahai alias Ram Singh32, the Court laid down as follows in regard to Section 69: “17. It would apply, inter alia, in a case where the attesting C witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the will may be proved in the manner indicated in Section 69 i.e. by examining witnesses who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others. D

18. Whereas, however, a will ordinarily must be proved keeping in view the provisions of Section 63 of the Succession Act and Section 68 of the Act, in the event the ingredients thereof, as noticed hereinbefore, are brought on record, strict proof of execution and attestation stands relaxed. However, signature and E handwriting, as contemplated in Section 69, must be proved.” (Emphasis supplied)

63Copy pinpoint63. Dealing with Section 69 of the Evidence Act, we notice the judgment of this Court in K. Laxmanan v. Thekkayil Padmini and others33: F “32. Since both the attesting witnesses have not been examined, in terms of Section 69 of the Act it was incumbent upon the appellant to prove that the attestation of at least one attesting witness is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. G DW 3, who was an identifying witness also in Ext. B-2, specifically stated that he had not signed as an identifying witness in respect of Ext. B-2 and also that he did not know about the signature in

32 (2008) 14 SCC 754 33 (2009) 1 SCC 354 H

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A Ext. B-2. Besides, considering the nature of the document which was a deed of gift and even assuming that no pleading is filed specifically denying the execution of the document by the executant and, therefore, there was no mandatory requirement and obligation to get an attesting witness examined but still the fact remains that the plaintiff never admitted the execution of the B gift deed and, therefore, the same was required to be proved like any other document.”

64Copy pinpoint64. In this case, there is no dispute that both the attesting witnesses were not alive at the relevant time. The questions, therefore, would then arise as follows: C a. Is it still the requirement of law when both the attesting witnesses are dead that: under Section 69 of the Evidence Act, the attestation as required under Section 63 of the Indian Succession Act, D viz., attestation by the two witnesses has to be proved? Or Is it sufficient to prove that the attestation of at least one attesting witness is in his handwriting, which is the literal command of Section 69 of the Evidence Act apart from proving the latter limb? E b. The further question which would arise is whether exhibit B7, which is the copy of the evidence of the one of the attesting witnesses in the Will, in the proceedings under Section 145 of the CrPC sufficiently fulfils the requirements under Section 33 of the Evidence Act?

65Copy pinpoint65. We will first take-up the issue relating to the impact of Section 33 of the Evidence Act. It is not a matter which is gone into by the High Court. Section 33 of the Evidence Act reads as follows: “33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.— G Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, H

V. KALYANASWAMY (D) BY LRS. & ANR. v. 707 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable: Provided— that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding. Explanation.—A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.” C (Emphasis supplied)

66Copy pinpoint66. The contention of the respondents appears to be only that, in the proceeding under Section 145 of the CrPC, the tussle was between R. Krishnammal and the Executor of the Will who were styled as A Party Nos. 1 and 2 and the B Party, viz., the respondents. The present D appellants were not parties. Therefore, the proceeding was not between the same. The other limb of the first proviso to Section 33, viz., that in order that Section 33 of the Evidence Act applies, the proceeding is between their representatives in interest is not fulfilled. The contention seen raised is that the appellants, who are the remainder men under the E Will, cannot be treated as representatives in interest of R. Krishnammal.

67Copy pinpoint67. Further the nature of Section 145 proceedings is highlighted as not one attracting the 3rd proviso. The interpretation of the word ‘representative in interest’ has fallen for consideration before the Privy Council in the decision reported in Krishnayya Surya Rao Bahadur Garu F and others (Defendants) v. Venkata Kumara Mahitathi Surya Rao Bahadur Garu34 wherein the Court referred to a large body of case law and after an exhaustive review, held as follows: “20. Nothing would have been easier, had it been desired so to do, than to follow the English rule, or to require that the party G to the first proceeding should be privy in estate with or the predecessor in title of the party to the second proceeding. Instead of using such well-known terms, a much more elastic phrase is employed, and one which is neither technical nor a term of art. 34 AIR 1933 PC 202 H

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A The legislative authority was, it must be remembered, dealing with a country in which (amongst other institutions) the Hindu joint family involved representation of interest of a kind and degree and in circumstances unfamiliar to English law. In view of this fact, their Lordships cannot but surmise that the omission of strict English legal terminology and the employment of the less restricted phrase ‘representatives in interest’’ was deliberate and intentional. It will be a question depending for its correct answer upon the circumstances of each case where the question arises, whether there was a party to the first proceeding who was a representative in interest of a party to the second proceeding within the wider meaning which their Lord- ‘ ships attribute to these words. Turning back to the first proviso, it requires, in their Lordships’ view, that the party to the first proceeding should have represented in interest the party to the second proceeding in relation to the question in issue in the first proceeding to which “the facts which the evidence states” were relevant. It covers not only cases of privity in estate and succession of title, but also cases where both the following conditions exist, viz. (1) the interest of the relevant party to the second proceeding in the subject-matter of the first proceeding is consistent with and not antagonistic to the interest therein of the relevant party to the first proceeding; and (2) the interest of both in the answer to be given to the particular question in issue in the first proceeding is identical. There may be other cases covered by the first proviso; but if both the above conditions are fulfilled, the relevant party to the first proceeding in fact represented in the first proceeding the relevant party to the second proceeding in regard to his interest in relation to the particular question in issue in the first proceeding, land may grammatically and truthfully be described as a representative in interest of the party to the second proceeding.” [Emphasis supplied]

68Copy pinpoint68. The word ‘representative in interest’, in other words, is to be understood liberally and not confined to cases where there is privity of estate and succession of title. He is be such representative of the party in the later proceedings. Answering the two tests, which have been evolved in the facts of this case, the respondents cannot contend that the interest of the appellants was inconsistent with the interest ofR. H

V. KALYANASWAMY (D) BY LRS. & ANR. v. 709 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

Krishnammal and in particular the executor of the Will. It was certainly not antagonistic to their interest. The Will was indeed set-up by R. Krishnammal and the executor. Therefore, it can be safely concluded that the interest of both persons comprised of A Party, which was the protection of the possession, was also in the interest of the appellants. It may be true that the appellants do not derive their title under R. B Krishnammal. But the requirements under Section 33 of the Evidence Act are not to be confused with the ingredients to be fulfilled even in a case under Section 11 of the CPC. It cannot be contended that the interest of the appellants lay in answering the question posed in Section 145 of the CrPC proceedings against R. Krishnammal and the Executor in favour of the respondents, who were parties before the Magistrate. C The case of the Will was explicitly set up as also the declaration dated 10.5.1955 and further developments. Therefore, the contention based on the third proviso also does not appeal to us. Also not only was there opportunity to cross examine to the party, it was availed of. The applicability of Section 33 of the Evidence Act also does not depend D upon the nature of the decision which is rendered in the earlier proceeding. We would think that on this basis, as Exhibit-B7 and even B13 (deposition by the Executor) indeed is evidence which was tendered in the previous proceeding before the Magistrate who was certainly authorised by law to take evidence, which is relevant for proving the truth of the facts contained therein under Section 33. E

69Copy pinpoint69. The further question is, as posed by us, whether despite the fact that both the attesting witnesses were dead, the matter to be proved under Section 69 of the Evidence Act, is the same as a matter to be proved under Section 68 of the Evidence Act. In other words, under Section 68 of the Evidence Act, in the case of a Will covered under F Section 63 of the Indian Succession Act, it is indispensable that at least one attesting witness must not only be examined to prove attestation by him but he must also prove the attestation by the other attesting witness [See 1995(6)SCC 213]. This Court has taken the view that while it is open to prove the will and the attestation by examining a single attesting witness, it is incumbent upon him to prove attestation not only by himself G but also attestation by the other attesting witness. It is the contention of the respondents that under Section 69 of the Evidence Act, Exhibit-B7 falls short of the requirement of law that attestation of the execution by both the witnesses be proved. After taking us through Exhibit-B7, it was pointed out that it is clear that even in the said deposition, the witness H

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A has not deposed about the attestation by the other witness, viz., Dr. C.S. Ramaswamy Iyer. On the other hand, the contention of the appellants and which has found approval with the First Appellate Court, is that Section 69 of the Evidence Act only requires that the attestation of at least one attesting witness in his handwriting be proved. This is, of course apart from proving that the signature of the testator executing the document is in the handwriting of that person.

70Copy pinpoint70. We are of the view that Section 69 of the Evidence Act manifests a departure from the requirement embodied in Section 68 of the Evidence Act. In the case of a Will, which is required to be executed in the mode provided in Section 63 of the Indian Succession Act, when there is an attesting witness available, the Will is to be proved by examining him. He must not only prove that the attestation was done by him but he must also prove the attestation by the other attesting witness. This is, no doubt, subject to the situation which is contemplated in Section 71 of the Evidence Act which allows other evidence to be adduced in proof of the D Will among other documents where the attesting witness denies or does not recollect the execution of the Will or the other document. In other words, the fate of the transferee or a legatee under a document, which is required by law to be attested, is not placed at the mercy of the attesting witness and the law enables proof to be effected of the document despite denial of the execution of the document by the attesting witness. E

71Copy pinpoint71. Reverting back to Section 69 of the Evidence Act, we are of the view that the requirement therein would be if the signature of the person executing the document is proved to be in his handwriting, then attestation of one attesting witness is to be proved to be in his handwriting. In other words, in a case covered under Section 69 of the Evidence Act, F the requirement pertinent to Section 68 of the Evidence Act that the attestation by both the witnesses is to be proved by examining at least one attesting witness, is dispensed with. It may be that the proof given by the attesting witness, within the meaning of Section 69 of the Evidence Act, may contain evidence relating to the attestation by the other attesting G witness but that is not the same thing as stating it to be the legal requirement under the Section to be that attestation by both the witnesses is to be proved in a case covered by Section 69 of the Evidence Act. In short, in a case covered under Section 69 of the Evidence Act, what is to be proved as far as the attesting witness is concerned, is, that the attestation of one of the attesting witness is in his handwriting. The H

V. KALYANASWAMY (D) BY LRS. & ANR. v. 711 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

language of the Section is clear and unambiguous. Section 68 of the A Evidence Act, as interpreted by this Court, contemplates attestation of both attesting witnesses to be proved. But that is not the requirement in Section 69 of the Evidence Act.

72Copy pinpoint72. Now, let us turn to Exhibit-B7. It is apposite that we advert to whole of it: B “I know the deceased Rangaswami Naidu. He wrote a will and asked me to attest it. I went. He asked me to attest it. The first signature is mine. The will is Ex. P-68. Every page has been signed by the deceased. After he signed the last page, I signed as witness. Doctor C.S. Ramaswami Iyer is the Doctor at C Ramanathapuram. He was also present. I as present when it was registered. The Sub Registrar came home. I have also signed before the Sub Registrar. The deceased was sick. He was able to understand things. I am an income tax practitioner. Cross Exam.: At that time I was living in a place 1½ or 2 D miles away from the house of the deceased. I went to the deceased’s house at about 10:30 a.m. I signed at about 11-30 to 12 noon. Doctor came after I went there. He came at 11.30 A.M. I do not know whether the Doctor came to attend on him or came purposely for attesting this document. Sub Registrar came later at about 1 P.M. I remained till the arrival of the Sub Registrar. But E the Doctor went away. The Sub Registrar went away at 1-30 to 2 P.M. Doctor did not return later. Doctor was there for a total period of 15 minutes. I remember he gave an injection. But I am not sure of it. When I went there the will was already typed. Rangasami Naidu was lying on the bed. He was being fed by tube. When I was there he was fed once. But I do not remember whether any medicine was given. The ink portions in pages 1 and 4 I do not know who had written it in the body of the document. It has not been subscribed here as to who wrote it or typed it. The deceased had an alisces in the head and he was suffering. He was in pain and suffering. I gave him the minimum trouble as interested in his health. At times in order to recoup from the pain and exhaustion he would lie down quietly. Not to disturb him we asked ______ (sic) restraint. I cannot say whether at every minute he was conscious or half conscious or in a coma. H

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A Re-Exam. When he talked to me he was conscious. (Sd) B. Venkataswamy Naidu, 1-2-56. Taken down by me in open court, read over and admitted to be correct. (Sd) K.S. Narasimhan, EFCm. 1-2-56.” B (Emphasis supplied)

73Copy pinpoint73. We must also be detained at this stage by another aspect about Section 69 of the Indian Evidence Act. Section 69 speaks about proving the Will in the manner provided therein. The word ‘proved’ is defined in the Evidence Act in Section 3, as follows: - C “Proved.- A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”

74Copy pinpoint74. Therefore, the question would be whether having regard to the evidence before it, the Court can believe the fact as projected in the evidence as proved. We say this to clarify. In a case, where there is evidence which appears to conform to the requirement under Section 69, the Court is not relieved of its burden to apply its mind to the evidence and find whether the requirements of Section 69 are proved. In other E words, the reliability of the evidence or the credibility of the witnesses is a matter for the Court to still ponder over. As far as this case is concerned, the evidence of one of the attesting witnesses is contained in B7 and which we have found relevant under Section 33, establishes that he was an Income Tax Practitioner. He was beckoned by Rangaswami Naidu, F informing him that he had written a Will and it was to be attested. He was asked to in fact to attest even upon going there on that day. He speaks about the testator signing on every page and also, he has spoken about him signing. He, no doubt, therefore establishes requirement of Section 69 in regard to the signature of one of the attesting witnesses being proved in his handwriting. We see no reason to doubt the testimony. G As far as signature of the testator is concerned, apart from B7 and B13, the executor has spoken of the testator signing. Also, PW1 has deposed that the Will was shown to him he admitted that every page is contained with the paternal uncle signature. Thus, the requirement of proof of Will under Section 69 are fulfilled. H

V. KALYANASWAMY (D) BY LRS. & ANR. v. 713 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

WHETHER RECEPTION OF B10 AS SECONDARY A EVIDENCE LEGAL?

75Copy pinpoint75. Whether the acceptance of B10 which is the certified copy of the Will is vulnerable in law or on facts. The Trial court has found that B68 is the original Will which was produced before the Magistrate in the proceedings under Section 145 of the CrPC This is after over-ruling the B contention of the respondents that B68 was not the original Will. The Trial Court has found little merit in the objection against secondary evidence of the Will, viz., certified copy of the registered Will being produced. We have in fact evidence in the form of B7 and X1 to show that the Will came to be registered. C

76Copy pinpoint76. The original of the Will according to the case of the appellants continued to be with the executor who was in fact the nephew of R. Krishnammal, the widow of Rangaswami Naidu. An attempt was made to get the original Will produced at the relevant time when the executor had passed away, on the basis that his son was in possession of the original Will. He was called upon to produce the Will by C1. He D responded by pointing out that he was not having the original Will with him. The finding of the Trial court as affirmed by the First Appellate Court is that circumstances warranted admission of secondary evidence to prove the Will. We see no reason to take a different view and the view taken by the High Court cannot be sustained. E

77Copy pinpoint77. It may be true that in the proceedings in O.S. No. 71 of 1958 and O.S. No. 36 of 1963, the Will was projected first by R. Krishnammal and thereafter, the plantiffs in O.S. No. 36 of 1963 who are among the appellants before us. However, the matter did not go to trial. We are also of the view that the Will must be proved under the Evidence Act F and not with reference to plea of estoppel as taken by the appellants based on the decree in O.S. No. 36 of 1963, being based on the Will and the respondents having participated not as parties even to the compromise but it is a far cry from finding that the facts of the case did not warrant admission of secondary evidence regarding the Will. G THE WILL: WHETHER IT IS THE GENUINE WILL OF RANGASWAMI NAIDU? WHETHER IT IS VITIATED ON ANY GROUND?

78Copy pinpoint78. We notice the following to be the relevant portions of the Will: H

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A “Last Will and testament executed this 10th day of May 1995 by Sri V. Rangaswami Naidu MLC son of Endapillar Venkataswami Naidu of Uppilipalayam Coimbatore Waluk I own the immovable properties a set out in Sch.A hereto absolutely exclusively and in my own right. These properties include properties purchased by me and properties that has been allotted to me in the family partition between me and my brother Shri R.V. Lakashmaiah Naidu in 1932 and which are in my exclusive possession and enjoyment since that date I have been a divided member from 1932 onwards and have continued to be so till this date. I have also to avoid any uncertainties in this regard made an open declaration of my divided status today. Besides the immovable properties I am entitled to the cash and other amounts as set out in Sch.B hereto I fell that I should make a deposition of my assets in the manner herein indicated in view of my recent ill health and failing strength and also in view of my diffidenceth as I may not live long enough I am not in full possession of my mental powers and I am making this will and Testament after deep deliberation and consideration and with the best of intentions appoint Sri Ramachandra Baidu son of Kangallar Venkataswami Naidu of Metupalayam to be the executor under the will. I bequeath all my landed properties and my house set out in Sch.A to my wife for life. she has no powers of alienation but she is entitled to enjoy the income from the lands and also to manage them. It is my earnest wish that out of the income from the landed properties in my wife should meet the expenses of presents on ceremonial and special occasion in my sisters families after meeting her own family expenses maintenance of the house careto. After my wife’s F lifetime the properties V. Rangaswami, 2. ….. in Sch A shall belong equally and absolutely to the following persons who are my sisters sons 1. V. Kalyanasami Naidu, Son of my sister Thayammal 2. R. Soundararaj as son of my Third Sister Nagammal 3. A. Alagriswami Son of Ranga Nayakiammal my forth sister 4. R. G Alagiriswami Son of Krishnammal my last sister. It is my earnest wish that these four person should keep the properties for their respective families and should not dispose them off, but in case of need they should sell them in the first instance to any of the other shares. The cash and other securities set out in Sch B valued at Rs.44,000/- (Rupees Forty Four thousand) should be realized as H

V. KALYANASWAMY (D) BY LRS. & ANR. v. 715 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

early as possible after my death and shall be paid to the following person in the following manner 1. Srimathi Amirthim Wife of Sri Kalyanaswami afiresaid Rs.10,000.0.0, 2. Ammaniammal my second sister Rs.10,000.0.0 3. Nagammal my third sister Rs.8,000.0.0 4. Ranganayakiammal my forth sister Rs.8,000.0.0

5. Krishnammal my fifth and last sister Rs.8,000,0.0 I have already made some other provisions for my wife apart from the properties under the will. they are not effected in any manner by these provisions. She is entitled to the movable propertiies not covered by the schedules hereto. … V. Rangaswami, 3. … This is my lst will and Testament All previous dispositions and intended dispositions are hereby finally revoked. This will shall come into effect after my life time. …”

79Copy pinpoint79. It will be seen from the Will that the Testator has recited in the Will that he owns the immovable properties set out in Schedule A exclusively and in his own right. The said properties are alleged to include properties purchased by him and properties allotted to him in his family partition between him and his brother in 1932. He further states that he has been a divided member from 1932 onwards and has continued to be so till the date of the Will. Finally, he states that, he, in order to avoid any uncertainties, made an open declaration of his divided status today. The Will further refers to amounts which he is entitled to as set out in Schedule B. Entire properties in Schedule A, including his house, is set out for his wife without powers of alienation. He further states that he expects his wife to make use of the income from the landed properties to be used to meet the expense of presents on ceremonial and special occasions in his sisters families after meeting her own family expense, maintenance of the house. There is a remainder, absolute in nature, given to his four F Legatees, i.e., his Nephews through his four sisters. He expressed his earnest wish that the four Legatees should keep the properties for their respective families and should not dispose them off, but in case of need, they should sell them in the first instance to any of the other sharers. The last portion to be noted is the statement that he has already made other provisions for his wife apart from the properties under the Will. G

80Copy pinpoint80. There is one aspect which is pressed before us also, in regard to the same, by the respondents. It is contended that the fact that there is no oral partition between brothers in 1932, makes it out to be a case where the Testator has made a rank incorrect statement in the Will which shrouds the Will itself as one which is not genuine. H

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81Copy pinpoint81. In regard to the aspect about incorrect statement in the will, it is to be noticed that making a totally incorrect statement in a will arouses suspicion. This is on the principle that the testator would not make an incorrect statement when he makes a will. If he makes a rank incorrect statement the inference is that he would not have made that will. This principle will not be applicable in the facts of this case. Making the statement that there was a partition in 1932 and that the properties were allotted to him, is apparently the understanding of the testator. This issue generated debate in the courts. The view expressed by the testator did not find favour with the courts but that is a far cry from describing it as an outright false statement. As long as it is a part of the will which is made by the testator and he believed in it the finding given by the court in this regard will not advance the case of the respondent.

82Copy pinpoint82. We further notice the following aspects: Rangaswami Naidu was an educated man. He was a former M.L.C.. He was an affluent man. He has no issues. He was affectionate towards his sisters. He has chosen to favour each branch of his sisters by selecting one son out of each branch to be the legatees in whom the property were to vest. In fact, he has also provided that the properties are to remain in the family and should any of the legatees wish to sell, it should be offered to the other legatees. As far as his health is concerned, it is well settled that the requirement of sound disposing capacity is not to be confused with physical well-being. A person who is having a physical ailment may not therefore berobbed of his sound disposing capacity. The fact that a person is afflicted with a physical illness or that he is in excruciating pain will not deprive him of his capacity to make a will. What is important is whether he is conscious of what he is doing and the will reflects what he has chosen to decide. While it may be true that he was suffering from cancer of the throat there is nothing to indicate in the evidence that he was incapable of making up of his own mind in the matter in leaving a will behind. The fact that he was being fed by a tube could hardly have deprived him of his capacity to make a will. We further notice that the will is a registered will. The Registrar came home. Exhibit X1 would show that Rangaswami Naidu on being asked to put his thumb impression, he insisted on signing. This course of conduct, in our view, has been correctly appreciated by the first appellate court, the final court on facts. The inference to the contrary sought to be drawn does not appeal to us. From the evidence, it is also clear that the other attesting H

V. KALYANASWAMY (D) BY LRS. & ANR. v. 717 L. BAKTHAVATSALAM (D) BY LRS. & ORS. [K. M. JOSEPH, J.]

witness was Dr. C.S. Ramaswamy Iyer a fairly renowned Physician A and family friend. PW1, the witness on behalf of the respondent has himself admitted publishing the obituary on the passing away of the said doctor. PW1 speaks about him as a gentleman and he won’t act illegal manner. In B7 the other attesting witness has also spoken about the doctor remaining there and no doubt leaving before the Registrar came. B We have already held that the requirement of Section 69 of the Evidence Act stands fulfilled otherwise. The fact that no bequest is made in favour of the sons of Lakshmiah Naidu cannot be treated as a suspicious circumstance. It is clear that Lakshmiah Naidu was extremely wealthy. Making the nephew of his wife executor of the will, in fact, does assure us of the absence of any foul play on the part of the legatees. In his evidence [B13 which is the evidence given by the Executor in 145 proceedings], he has spoken about the testator expressing his desire on 2-3 occasions about wanting to executing a will. From the evidence adduced by PW1 also, we would think that the view taken by the first appellate court regarding the will cannot be characterized as a perverse one warranting interference in the second appeal.

83Copy pinpoint83. Lastly, while the burden to prove the will and to satisfy the conscience of the court that there are no suspicious circumstances or if there are any to explain them is on the propounder of the will, the burden to prove that the will is procured by coercion, undue influence or fraud is on the respondents who have alleged the same. The evidence of PW1 E would show that the respondents have failed to prove that the will is vitiated in this regard. Therefore, we would arrive at the conclusion that the will was indeed executed by R. Naidu and was his last will.

84Copy pinpoint84. Undoubtedly, Rangaswami Naidu and Lakshmiah Naidu who were brothers, were co-parceners in a Hindu Coparcenary. The case of the appellants is based upon their being a severance of the Hindu Joint Family. The expression ‘the Hindu Joint Family’ is in the context of this case, to be understood as the coparcenary. The argument of the respondents representing the Lakshmiah Naidu branch on the other hand is that, when Rangaswami Naidu died on 01.06.1955 and when, therefore, succession to his estate opened, Lakshmiah Naidu succeeded to the estate of his brother as Rangaswami Naidu died issueless and, therefore, under the law as it stood on that date, Lakshmiah Naidu succeeded to the property by survivorship.