OSA/154/2021 of R. LOGANATHAN (DECEASED) Vs P. RANGANAYAKI (DECEASED on 15 September 2026

COMMON JUDGMENT

(Judgment of the Court was delivered by GK. Muthukumaar J.) These Original Side Appeals have been preferred against the common order dated 9.9.2019 passed in C.S.No.227 of 1999 and TOS.No.23 of 2008 on the file of the Original Side of this Court, whereby both the suit and the testamentary original suit were dismissed.

2. Heard the Learned Counsel appearing for the appellants and the Learned Senior Counsel appearing for the respondents. Factual Background :

3. The appellants had initially filed O.P.No.157 of 2001 seeking Letters of Administration with a copy of the Will dated 20.9.1997, Ex.P1, annexed. Ex.P1 being the Will said to have been executed by the late Purushothaman. The Testator, Purushothaman, died on 1.4.1999. P.Ranganayaki was the wife of the Testator. The couple had no issues. As per the said Will, the property mentioned therein was bequeathed to his wife, Ranganayaki with a life interest and thereafter, absolutely in favour of Loganathan, whose legal heirs are the appellants. The said Ranganayaki was therefore entitled to enjoy the property for life, but was prevented from either mortgaging or selling the same during her lifetime. The said Original Petition culminated in a Testamentary Original Suit in T.O.S.No.23 of 2008.

4. During the pendency of the above said proceedings, the appellants filed C.S.No.227 of 1999 challenging the two sale deeds, Exs.P7 and P8, both dated 17.2.1999, executed in favour of the respondents 1 and 2 herein. The said Testamentary Original Suit and the Civil Suit were tried together.

5. Three witnesses were examined on the side of the appellants and one witness was examined on the side of the respondents. Exs.P1 to P21 and Exs.D1 and D2 came to be marked. Thereafter, by common judgment and decree dated 9.9.2019 both the Testamentary Original Suit and the Civil Suit came to be dismissed by the Learned Single Judge. Challenging the same, the present Original Side Appeals have been filed. Submission of the Counsels :

6. The Learned Counsel for the appellants would submit that as per the Will, Ex.A1, the wife of the Testator, Ranganayaki, had only a limited interest of enjoyment and she cannot mortgage or sell the property to anybody. He would also contend that this was the last Will and testament of the Testator. However, contrary to the same, she had alienated the property, subject matter of the Will under Exs.P7 and P8 to the respondents 1 and 2 respectively. He would therefore contend that the sale is void and hence is liable to be cancelled.

7. He would also draw the attention of this Court to the fact that Ranganayaki, the wife of the Testator is the first attesting witness of the Will and one S.Rajakumari is the second attesting witness. He would also draw the attention of this Court to Exs.P4 and P7 to substantiate his contentions. He would also contend that an another Will dated 24.10.1997 claimed to have been executed by the Testator, R.Purushothaman in favour of his wife, Ranganayaki, as mentioned in Ex.P7, has not been filed in the proceedings and hence the averments regarding the same do not merit consideration. He would also draw the attention of this Court to the evidence of P.W.3, S.Rajakumari, the second attesting witness and submit that though P.W.3 states that she did not witness the execution of the Will by the Testator, she has affirmed that she is the second attesting witness and that the signature of the second attesting witness in the Will is that of herself. He would further submit that the attesting affidavit of S.Ranganayaki, Ex.P12, that was marked in the Original Petition clearly establishes the fact of execution of Ex.P1 by the Testator and that both the witnesses to Ex.P1 Will, being S.Rajakumari and Ranganayaki, the wife of the Testator had witnessed the execution of Ex.P1 by the Testator, Purushothaman and that they had witnessed the same in his presence and in the presence of each other. He would therefore contend that the execution and genuineness of the

Will, Ex.P1 has been proved and in view of which, Letters of Administration ought to be granted to the appellants, and the said Civil Suit be decreed, thus cancelling the sale deeds under Exs.P7 and P8. In support of his contention, the Learned Counsel relied upon the judgment of this Court in Boomathi Vs. Murugesan and Others reported in MANU/TN/1250/2023.

8. Per contra, the Learned Senior Counsel appearing for the respondents would submit that the execution and attestation of the said Will, Ex.P1, has not having been proved in the manner prescribed by law especially Section 63 of the Indian Evidence Act. He would place strong reliance on the cross examination of P.W.3, where the second attesting witness to Ex.P1, Will, S.Rajakumari categorically states that the Testator and the first attesting witness, Ranganayaki did not sign in her presence. He would also contend that P.W.3 goes further to state that she did not know the nature of the document, she was attesting and that she had signed in Ex.P1 at the request of the deceased appellant, Loganathan. He would further contend that it was only the said Loganathan who is the brother of the Testator who had obtained her (P.W.3) signature in the attesting affidavit, Ex.P12. The Learned Senior Counsel would therefore submit that the Will, Ex.P1 has not been executed and attested in the manner know to law, particularly Section 63 of the Indian Succession Act. In the light of the deposition of P.W.3, he contends that Ex.P12, loses all its credentials and the same cannot be relied upon. In such circumstances, he submits that it cannot be said that the execution and attestation of the Will, Ex.P1 has been proved. So, in the event of Ex.P1 not having been proved, Ranganayaki, the wife of the testator, being the only Class I heir of the Testator, has absolute interest in the property and is entitled to deal with the same in any manner as she feels and in view of which, the sale deeds, Exs.P7 and P8 executed by her in favour of the respondents 1 and 2 is valid and hence he contends that both these Original Side Appeals deserve to be dismissed. In support of his contentions, he relied upon the judgment of the Hon’ble Supreme Court in the case of Pazhanathal (dead) through Lrs and Others Vs. Alamathal (dead) through Lrs. And Others reported in 2026 LiveLaw (SC) 813. The Learned Senior Counsel also relied upon the judgment of the Hon’ble Supreme Court in the case of Yumnam Ongbi Tampha Ibema Devi Vs. Yumnam Joykumar Singh and others reported in (2009) 4 SCC 780, in support of his contentions as regards the compliance with the requirements of Sections 63 of the Succession Act.

Findings :

9. Upon consideration of the pleadings, the oral and documentary evidence and the proposition of law in this regard, we find that the entire issue revolves around the execution and attestation of the Will, Ex.P1. Before we proceed further, we would like to highlight the following undisputed facts;

(I) P.W.3, S.Rajakumari, is the second attesting witness to the Will, Ex.P1 dated 20.09.1997.

(ii) The other Will dated 24.10.1997 as mentioned in the reply notice, Ex.P6, has not been filed in the proceedings and hence, no relevance can be placed upon the same.

(iii) The said Ranganayaki, is the wife of the Testator and she is the only legal heir of the Testator.

10. In the light of the above said undisputed facts, we proceed to address the issue on hand. In this regard, it is necessary to recall the provisions of Section 63 of the Indian Succession Act, 1925 (the Succession Act) which deals with the execution of unprivileged wills. Section 63 is extracted hereunder; “Execution of Unprivileged wills; Every testator, not being a soldier employed in an expedition or engaged in actual warfare [or an airman so employed or engaged] or a mariner at sea, shall execute his will according to the following rules:- (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.” From the above, it is seen that as per the mandate of Section 63(c), every Testator shall sign the will and the same shall be attested by two or more witnesses, each of whom, have seen the Testator sign and each of the witnesses shall sign the Will in the presence of the Testator.

11. In this regard, the judgment of the Hon’ble supreme Court as relied upon by the Learned Senior Counsel for the respondents, in the case of Pazhanathal (dead) through Lrs and Others Vs. Alamathal (dead) through Lrs. And Others reported in 2026 LiveLaw (SC) 813, may necessarily be relied upon. The relevant portions of the said judgment are extracted hereunder; “51.The provision requires proof of three distinct acts. First, the testatrix must sign or affix her mark to the instrument. Secondly, the placement of that signature or mark must indicate an intention to give effect to the writing as her Will. Thirdly, the Will must be attested by at least two witnesses in the manner stated in clause (c). Each attesting witness must either witness the act of signing or affixing the mark, witness another person signing on the testatrix’s direction, or receive a personal acknowledgment from the signing on the testatrix’s direction or receive a personal acknowledgment from the testatrix. Each witness must thereafter sign the instrument in the presence of the testatrix.

52. It is not necessary that both attesting witnesses should be present simultaneously, but what is indispensable is the substance of the statutory ceremony, that is the testatrix’s execution or acknowledgment, the witnesses’ awareness of that execution or acknowledgment and their subscription of the instrument in her presence with the intention of bearing witness to that act.

59. Thus, the concession granted by Section 68 of the Evidence Act, concerns the number of witnesses required to be examined in Court and it does not dilute the requirement that the Will itself must have been attested by at least two witnesses. One attesting witness may prove the entire ceremony. But where the witness examined proves only his own signature and is unable to prove the participation of the second attesting witness, the evidence falls short of establishing due execution under Section 63(c) of the Indian Succession Act.”

12. Yet another judgment of the Hon’ble Supreme Court in the case of Yumnam Ongbi Tampha Ibema Devi Vs. Yumnam Joykumar Singh and others reported in (2009) 4 SCC 780, may also be relied upon in this regard. The relevant portions of the said judgment are extracted hereunder: “11.As per provisions of Section 63 of the Succession Act, for the due execution of a will:

(1) the testator should sign or affix his mark to the will;

(2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a will;

(3) the will should be attested by two or more witnesses, and

(4) each of the said witnesses must have seen the testator signing or affixing his mark to the will and each of them should sign the will in the presence of the testator.

13. Therefore, having regard to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. The attesting witness should speak not only about the testator’s signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator.

17. It is to be noted that the trial Court did not even record any reason for coming to the conclusions as done. No issue was framed regarding the validity of the will. The evidence of P.W.2

does not in any way support the claim of due execution and attestation of the will. On the contrary, it clearly establishes that he did not sign in his presence, he did not know what was the nature of the document. There was no attesting witness who had signed in his presence and therefore, the requirements of Section 68 of the Evidence Act have to be complied with in order to show that the two persons who claimed to have signed as attesting witness can be really treated as attesting witnesses.”

13. Analyzing the present case in the light of the above said mandatory provision of law and the said judgments of the Hon’ble Supreme Court, we find that in this instant case, the Will, Ex.P1, has not been executed in the presence of the only examined attesting witness, P.W.3, S.Rajakumari. Though P.W.3 in her cross examination admits the signature in Ex.P1 to be that of hers, she clearly states in her cross examination that the Testator did not sign in Ex.P1 in her presence. She further state that she did not know whether Ex.P1 was a Will or not and that she had signed Ex.P1 only upon the request of the deceased appellant, Loganathan. She also expressly states that at the time of execution of Ex.P1, she was not present and that Loganathan, the brother of the Testator, came to her house and obtained her signature in Ex.P1 and that she had affixed her signature in Ex.P1 only upon the request of the Testator’s brother, Loganathan. The cross examination of P.W.3 on 26.9.2013 in this respect deserves reproduction and the relevant portions are as extracted hereunder;

“I was residing at No.192, Suriyanarayana Chetty Street, Royapuram, Chennai 13 during the year 1995. I was a tenant in that house. The house owner was Mr.R.Purushothaman. On perusal of Ex.P1 Will, the 2nd attesting witness is myself and the signature is of mine. The name of the testator’s wife is Mrs.P.Ranganayaki. At the time of execution of the Will, I was not present. Mr.Purushothaman’s brother came to my house and get my signature in the Will. As requested by Mr.Purushothaman’s brother I affixed my signature in Ex.P1, Will. The Signature found in attesting affidavit is that of mine. In affidavit of attesting witness in O.P.No.157 of 2001 the signature is of mine. The signatures found in the affidavit of attesting witness i.e., page 1, page 2 and page 3 is that of mine and it is marked as Ex.P12. I do not know about the statement mentioned in Para 3 of affidavit of attesting witness filed by me in O.P.No.157 of 2001. It is correct to state that the signatures found in at the foot of testamantory paper that Ex.P1 is that of mine.”

14. Therefore, from the evidence of P.W.3, it is clear that she had not witnessed the execution of the will, Ex.P1 by the Testator. When this is so, we find that Clause (c) to Section 63 which mandates that the attesting witness should have seen the Testator sign the Will, has not been complied with. So despite the fact that, P.W.3 admits the signature in Ex.P1, since she has not seen the execution of Ex.P1, by the Testator, we find that the mandatory requirement of Section 63(c) regarding the witnessing of the execution of the Will by the attesting witness has not been complied with as regards the execution of the Will, Ex.P1. Therefore, we find that the execution of the said Will, Ex.P1 has not been proved in the manner known to law.

15. Now coming to the attesting affidavit of S.Rajakumari, Ex.P12, we find that the same is totally contrary to her deposition in cross examination which we have extracted herein above. Further, though the signature in Ex.P12 may be that of S.Rajakumari, the attesting witness to Ex.P1, still the contents in Ex.P12 cannot override the mandatory requirement prescribed under Section 63

(c) . Moreover, Rajakumari in her further cross examination states that the said affidavit was prepared by her Advocate who accompanied her to Court. In such circumstances, Ex.P12 loses all credence as it comes to light that the same was not an affidavit prepared by Rajakumari of her own free will and accord, but was something which she had simply signed as a legal requirement as she herself mentions that her signature in Ex.P12 was obtained by Mr.Loganathan. So it can only be said that Rajakumari signed in Ex.P12 without knowing the nature and legal implications of the said affidavit. Moreover, the clear and categorical deposition of Rajakumari in her cross examination, according to us, would override the inconsistent averments in her affidavit, Ex.P12.

16. Therefore, going by the entire cross examination of P.W.3, S.Rajakumari, we find that the execution of Ex.P12 by Rajakumari cannot be relied upon in support of the execution of Ex.P1, Will. This is all the more so, as the same would then be contrary to the mandate of Section 63 and hence we refrain from relying upon Ex.P12.

17. That apart, we find that the only judgment referred to supra that had been relied upon by the Learned Counsel for the appellant would not apply to the instant case in view of the different factual scenario involved herein.

18. On the other hand, the judgment of the Hon’ble Supreme Court relied upon by the Learned Senior Counsel as cited supra, squarely applies to the instant case. From these judgments, we find that the compliance with Section 63 of the Succession Act and Sections 68 and 69 of the Indian Evidence Act are mandatory requirements so as to establish the execution, attestation and genuineness of the Will. If there is a shortfall in meeting the requirement of these provisions, as in this instant case, then the Will cannot be said to be validly executed and attested in the manner known to law. In such circumstances, the Will cannot be said to be a genuine and valid Will.

19. For the foregoing reasons, we hold that the Will, Ex.P1, which does not comply with the mandatory requirement of Section 63 of the Succession

Act, cannot be said to be validly executed and attested. In such circumstances, we hold that Ex.P1, the Will is not a valid and genuine will.

20. In view of our finding on Ex.P1, we find that the wife of the Testator, Ranganayaki, as his only legal heir, upon his death, becomes the absolute owner of the property of the Testator and in which event, she is entitled to dispose of the same in any manner as deems to be fit. In such circumstances, the sale deeds/Exs.P7 and P8 executed by her in favour of the respondents 1 and 2 respectively are hereby held to be valid.

21. In the light of the above findings, we deem it fit to dismiss both the Original Side Appeal and the Civil Suit, which we hereby do, thereby confirming the common judgment and decree of this Court dated 9.9.2019 passed in C.S.No.227 of 1999 and TOS.No.23 of 2008 whereby both these were dismissed. In the facts and circumstances of the case, the parties shall bear their own costs. Consequently, all connected Miscellaneous Petitions are closed. (P.V.,J.) (G.K.M.,J.) 15-09-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No VKR

To The Sub Assistant Registrar (Original Side), High Court of Madras, Chenani.

P.VELMURUGAN, J. AND GK.MUTHUKUMAAR, J. VKR OSA Nos.154 & 155 of 2021 15-09-2026