without signature of the testator only with signature of attestar is enough for prove the will

Citation

CDJ 2008 MHC 1556

Sarojini and others vs Mohandass and others

Head note

Will - Indian Evidence Act - Section 68 - Whether Ex.A.1-Will is valid on account of the absence of signature of the testatrix - Whether the Will in Ex.A.1 is proved in terms of Section 68 of the Indian Evidence Act - To constitute a valid Will, the testator or testatrix had to sign the Will and it has to be attested by two witnesses. In the present case, the Will has not been signed by the testatrix and the scribe had only written the name of the testatrix N in every page and there is no signature or Left Thumb Impression found against the name of the testatrix. The absence of signature in the Will vitiates the whole will and as such, Ex.A.1 cannot be construed to be the Will executed by the mother of the first respondent and as such, the first respondent is not entitled to get the property of the mother as a legatee of the Will - Ex.A.1-Will cannot be treated to be a joint Will on account of the absence of the signature of one of the testators under whom the first respondent claims property as the legatee. The first respondent has examined P.W.2 to prove that he had attested the Will. It is the evidence of P.W.2 that he had witnessed to the execution of Will and according to him, both the testators have signed in his presence. However, the fact remains that the Will did not contain the signature of the testatrix - The scribe, who had written the Will, and the Sub-Registrar, who had registered the document, were not examined. The absence of the signature of the testatrix in the Will was not taken note of by the trial Court as well as the first appellate Court. It was noticed only when the Will was looked into during the course of hearing of the second appeal and, therefore, it cannot be said that the findings of fact recorded by the Court below are based on pleadings and evidence in the matter - Testatrix did not execute Ex.A.1 and the factum of absence of the signature of the testatrix in the Will was overlooked by the trial Court as well as the first appellate Court. Therefore, it has to be concluded that while granting the decree in favour of the first respondent, the Court below ignored material evidence and, as such a case is made out warranting interference in second appeal. The approach of the trial Court as well as the first appellate Court were erroneous as both the Courts below analysed the issue on the basis that the Will is valid and genuine. No attempt was made by the trial Court as well as the first appellate Court to verify the Will for the purpose of ascertaining the validity or genuineness of the Will - Accordingly, the Second Appeal is allowed and the judgment and decree dated 08.01.2002 in A.S.No.11 of 2001 on the file of the Subordinate Judge, Kovilpatti, confirming the judgment and decree dated 16.02.2001 in O.S.No.90 of 1995 on the file of the District Munsif, Vilathikulam is set aside, and consequently, the suit filed by the first respondent in O.S.No.90 of 1995 is dismissed.

Para 21 to 26

Cases Referred:
1. Pentakota Satyanarayana & Others v. Pentakota Seetharatnam and others 2006(2) LW 658
2. Niranjan Umeshchandra Joshi vs. M.Jyoti Rao 2006(14) Scale 186
3. Madhukar D.Shende v. Tarabai Shedage (2002) 2 SCC 85
4. Sridevi & Ors. v. Jayaraja Shetty & Ors. (2005)8 SCC 784
5. Hero Vinoth vs. Seshammal reported in 2006(5) Scale 477
6. Yadarao Dajiba Shrawane (dead) by Lrs. v. Nanilal Harakchand Shah (dead) and Ors. 2002(6) SCC 404
7. Neelakantan and Ors. v. Mallika Begum 2002(2) SCC 440
8. Krishna Mohan Kul alias Nani Charan Kul and Another v. Pratima Maity and others (2004) 9 SCC 468

Comparative Citations:
2008 (3) MLJ 1086, 2008 (2) LW 750, 2008 (2) CTC 135