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TMI Blog1972 (8) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... okia Udayar aforesaid. The parties belong to Keeranur village in Ramanathapuram District and the father, Susai Udayar, left for Burma several decades ago and practically settled down there till the moment of his death in Burma in 1941. His wife the mother of the plaintiff also died in 1942. During the time he settled down in Burma, Susai Udayar acquired vast extents of paddy fields in Thamin Ahank Kwin, Dedaye Township in Burma, Susai Udayar also acquired lands and houses in his native village. 3. It is not in dispute that Susai Udayar his wife and his three daughters settled down in Burma; indeed the three daughters were born bred up in Burma and they were also married in Burma. The husbands of the fifth and the sixth defendants (the other two daughters of Susai Udayar) were staying in Burma, looking after the lands acquired by Susai Udayar, in Burma, Arokia Udayar, the son of Susai Udayar, permanently stayed in India in the native village and used to visit Burma now and then. It was the husband of the fifth defendant (Irudayam) who was in main charge of the management of the properties in Burma and was completely assisting Susai Udayar. During the period of the war and when th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso claimed an account of her share of the income from the properties from the death of Arokiam in 1946. The suit was contested by defendants 1 to 3. Defendants 4 to 6 remained exparte; they did not ask for partition and separate possession of their shares. The contentions of defendants 1 to 3 rested mainly upon Ex. B-4 the certified registration copy of the original Will left behind by Susai Udayar. The defendants' case was that Irudayam, the husband of the fifth defendant, is responsible for this litigation, that he had set up and instigated the plaintiff to file the suit and that the original Will which was in the house of Arokiam had been stealthily taken away by the plaintiff in collusion with Irudayam the husband of the fifth defendant along with other important documents and title deeds, and, taking advantage of the fact that the original Will is in their custody and control, the plaintiff had been instigated to institute the suit, seeing the handicap which defendants 1 to 3 were laboring under on account of their inability to produce the original Will. The learned Subordinate Judge upheld the plaintiff's claim in the view that the contesting defendants had not sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistrar's office in Burma there can be no doubt about it that one Susai Udayar had executed a Will on 12-3-1941 and had also registered the same on the same date. There is no dispute that the particulars of the testator mentioned therein i.e., Ex. A-4 refer to the father of the plaintiff. i.e. the ancestor of the parties, the legatees mentioned therein are the parties herein and the bulk of the properties dealt with thereunder are properties belonging to the ancestor of the family. Again, the equitable distribution of the properties also shows that it is a natural Will. Considerable and substantial landed properties have been given to the daughters and the rest of the properties in Burma and the properties in India have been given to the son. The Will is a perfectly rational Will and cannot be, by any means said to be arbitrary capricious or irrational so as to call for scrutiny from that point of view as exciting the suspicion of the court. When once this stage is reached that the testator (ancestor of the parties) did execute a Will the next question is who is interested in producing it and who is interested in suppressing it. Here again, there is no dispute and it is obvious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween the brother and the sisters. Irudaya Udayar even went to the extent of filing a suit claiming that certain properties purchased in the name of Arokiam, the husband of the first defendant (and son of Susai Udayar) were all taken with the moneys of Irudaya Udayar, but the suit filed by Irudaya Udayar failed and an appeal preferred also was dismissed. It is the case of the first defendant and the evidence also shows that after the death of the first defendant's husband, the sisters were frequently coming to the house and taking advantage of the misunderstandings with regard to the third defendant's marriage in which the fourth defendant had assumed a hostile attitude. Irudaya Udayar maneuvered to secure and pilfer away the original documents including the Will. The plaintiff is wholly unable to explain how she has filed the numerous original documents. Ex. A-1 to A-22. These are all documents which even according to her case, in the normal course, must be in the possession of the first defendant's husband and after his death, in the possession of the first defendant. The plaintiff was squarely cross-examined and she gave useless prevaricating answers that her fath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s suppressing the same both the plaintiff and Irudaya Udayar acting in collusion, to defeat the rights of the first defendant. The next aspect is, as mentioned already, that the first defendant has no motive to suppress the will and if the original is not produced by her, it is for reasons beyond her control and that the original is not with her. It is not even suggested to her that she is keeping the original and suppressing the same. 5. The copy of the Will (Ex. B-4), shows that it has been executed in a careful manner and with the assistance of a lawyer. The endorsements about the execution and the attestation clause also show that the requisite safeguards had been taken to satisfy the requirements of law as to execution and attestation. The Burma lawyer who prepared the Will could not be examined and so interrogatories were administered to him by the plaintiff as well as by the defendant. The interrogatories and the answers have been marked as Exs. B-19, B-20 and B-21. The lawyer could not give any helpful evidence, because he was handicapped as the original was not produced before him and the certified copy alone was shown to him. He could not either affirm or deny positive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is giving evidence that the attestors used to come to the testator's residence in Burma. P. W. 1 herself has admitted that the two attesting witnesses are known to P. W. 1 they were her father's neighbors in Burma and they used to come to her father's place in Burma. She has also admitted that D. W. 1 Santhiagu Udayar, is known to her father very well in Burma and that he used to mess in her father's place. It is this witness, D. W. 1, who has given evidence about the execution of the will. The trial Court was not justified in rejecting his evidence on the ground that he has not attested the will. The cross-examination of D. W. 1 does not make out that he is uttering lies. In the natural background, it is very likely that this witness was present in Burma at the time of the execution and registration of the will the evidence that he gives is true. He is not a stranger. Even according to the plaintiff, he is very well known to her father, he was living in Burma and frequently messing in her father's place. He had ample opportunity to know the execution of the will if one was executed. We have scrutinized the evidence of D. W. 1 and we are satisfied that he is sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... George Rankin observed that the evidence of due registration is itself some evidence of execution as against the other side. There is a full discussion on this question as to the presumption arising from the fact of due registration, coupled with the presumption arising under Section 114 of the Indian Evidence Act in a Bench decision of the Mysore High Court in Hutchegowda v. Chennigegowda, AIR 1953 Mys. 49, in which it was held that the evidence that a document was duly registered is some evidence of its execution by the person by whom it purports to have been executed. There is a full discussion of the relevant case law including the decision of the Privy Council in AIR 1922 PC 56 aforesaid. In Revanna v. Dr. A. V. Ranga Rao, AIR 1952 Mys 119, it was observed that in cases where it is impossible for any person to prove execution of a document on account of the death of all the persons concerned the best and the only possible evidence that may be available is that of a certified copy of the registered document and that in such cases a presumption could arise under Section 60 of the Registration Act along with Section 114 of the Evidence Act (see also Kashibai v. Vinayak, ). It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fully realizing the implications of what he was doing. There is absolutely no evidence that he was suffering from any serious illness which impaired his mental faculties. Indeed, as observed already the fifth defendant himself had sent the will to the first defendant, which, by itself, is sufficient proof that it is a will genuinely executed by the testator in a sound disposing state of mind. 10. For all these reasons, the appeal in A. S. 321 of 1965 is allowed and the plaintiff's suit is dismissed with costs in both the courts. As the plaintiff has completely failed the courts-fee payable to the Government on the plaint will be recovered from her. If, in the meanwhile, any portion of the court-fee had been paid by the first defendant in pursuance of the direction of the trial Court, the plaintiff is liable to reimburse the same to the first defendant. 11. A. S. No. 562 of 1970-There is absolutely no substance in this appeal which has been preferred as cross appeal by the plaintiff in respect of the items disallowed. A perusal of the judgment of the trial Court shows that the plaintiff has totally failed to prove that these assets were acquired with the aid of the income ..... X X X X Extracts X X X X X X X X Extracts X X X X
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