Madras High Court
Sakunthala Narayanan vs Malabalakrishnan on 25 January, 2019
Author: N.Seshasayee
Bench: N.Seshasayee
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 11.08.2018
Judgment Pronounced on : 25.01.2019
CORAM: THE HONOURABLE Mr.JUSTICE N.SESHASAYEE
A.S.No.388 of 2007 and MP.No.1 of 2007
& Cross.Obj. No.17 of 2010
A.S.No.388 of 2007 :
1.Sakunthala Narayanan
2.Kala Narayanan ... Appellants
Vs
1.Malabalakrishnan
2.Manivannan
3.The Branch Manager
M/s.Mahaveer Spinning Mills Ltd.,
No.40, L.R.G.Layout
Kongu Nagar Extension
Tiruppur – 7.
4.Alfa Traders
No.40, L.R.G.Layout
Kongu Nagar Extension
Tiruppur – 7.
5.K.Thangavelu ... Respondents
Cross.Obj.No.17 of 2010 :
Malabalakrishnan ... Appellant
Vs
1.Sakunthala Narayanan
2.Kala Narayanan
3.Manivannan
http://www.judis.nic.in
2
4.The Branch Manager
M/s.Mahaveer Spinning Mills Ltd.,
No.40, L.R.G.Layout
Kongu Nagar Extension
Tiruppur – 7.
5.Alfa Traders
No.40, L.R.G.Layout
Kongu Nagar Extension
Tiruppur – 7.
5.K.Thangavelu
M/s.Diva Fabrics
Chitto Unit No.41
(32 Heavy Road)
Tiruppur.
(Since R3 to R6 remained exparte before the trial Court,
they are given up in this appeal) ... Respondents
Prayer in A.S.No.388 of 2007 :- First Appeal filed under Section 96 of C.P.C.,
to set aside the judgment and decree dated 16.11.2006 in O.S.No.593 of 2004
on the file of the Additional District and Sessions Judge-cum-Fast Track Court
No.2, Coimbatore.
Prayer in Cros.Obj.No.17 of 2010 :- Cross Objection filed under Order 41 Rule
22 of CPC., against the judgment and decree dated 16.11.2011 made in
O.S.No.593 of 2004 on the file of Addl. District and Sessions Court (Fast Tract
Court-II), Coimbatore, (notice and grounds of A.S.No.388 of 2007 received by
the counsel for the cross appellant on 26.11.2009), in so far as it relates to the
disallowed portion in Item No.1 of the suit property.
In A.S.No.388 of 2007 :
For Appellants : Mr.C.R.Prasanan
For Respondents : Mr.V.P.Sengottuvel [R1]
R2 & R4 – No Appearance
http://www.judis.nic.in R3 & R5 – Given up
3
In Cros.Obj.No.17 of 2010 :
For Cross Objector : Mr.V.P.Sengottuvel
For Respondents : Mr.C.R.Prasanan [R1 & R2]
COMMON JUDGMENT
The first and the third defendants have preferred this appeal challenging the preliminary decree for partition passed by the learned Additional District and Sessions Judge and Fast Track Court No.II, Coimbatore in O.S.No.593 of 2004. The parties would be referred to as by their rank before the trial court. 2.1 There are two items of properties. Item No.1 has a total extent of 12,966 sq.ft. and Item No.2 is a plot measuring 622.21 sq.mtrs. in the Industrial Estate in Tiruppur Taluk. These properties were purchased by a certain Narayanan, under Ext.A-1 sale deed dated 16.09.1970 and Ext.A2, sale deed dated 16.03.1989. Narayanan died on 02.4.2000, leaving him surviving his widow, the first defendant herein, and his three children, namely, the plaintiff, his younger daughter, the second defendant, his only son, and, the third defendant, his elder daughter.
2.2 Alleging that the suit properties are the self acquisitions of Narayanan, that on his demise they devolved equally on his widow and three children, that the plaintiff is in joint possession of these properties along with the other heirs of Narayanan, the plaintiff has laid a suit for partition of her ¼ share in both the http://www.judis.nic.in 4 items of the suit properties. It is also incidentally alleged that the first defendant, the mother of other defendants, has appeared to have executed some settlement deed in favour the husband of her elder daughter and on that pretext, some suit too has been laid.
3. The second defendant did not contest the suit, and chose to remain exparte. Resisting the suit, the defendants 1 and 3, the appellants herein (the widow and the elder daughter of Narayanan) have pleaded:
● Narayanan, during his life time had executed a settlement deed dated 17.03.1975 (Ext.B-2), where under he had settled a plot measuring 11 cents and 191.5 sq.ft. that lies on the northern portion of Item No.1 of the plaint schedule property in favour of his wife, the first defendant.
Subsequently, the first defendant had put up a two storey-building in the plot covered by the said settlement deed at a cost of Rs.50.0 lakhs. This building is leased to M/s Mahavir Spinning Mills, Balaji Khaja button and Cotton camp. As concerning this portion, the plaintiff began disturbing the first defendant of her possession and enjoyment, which forced the latter to institute O.S.101/2004 before the district Munsiff Court, Tiruppur, for bare injunction.
● In the southern portion of item 1 (that which lie to the south of the property covered under Ext.B-2 settlement deed), Narayanan himself had put up a 9,000 sq.feet building. He was in possession and enjoyment of this property till his demise on 02-04-2000. http://www.judis.nic.in 5 ● On 04.01.1999, about a year prior to his demise, Narayanan had executed a registered Will bequeathing the entire property excluding the one covered under Ext.B-2 settlement deed, in favour of his elder daughter, the third defendant herein, after reserving life estate in favour of his wife, and to the exclusion of his younger daughter, the plaintiff, and his son, the second defendant from inheriting any of his properties. In the Will both the plaintiff and the second defendant were excluded and denied any legacy since (a) the plaintiff had acted against the wishes of Narayanan, and (b) the second defendant has been irresponsible. (The Will is marked Ext.B-16). Consequently, the plaintiff does not have any right to any share in the suit property. ● On Narayanan's demise, his Will came into effect, and the legatees under the Will began to enjoy the property. While the first defendant has leased out the portion in item 1 covered by Will, the third defendant has leased out item 2. One of the lessees of the first defendant is the third defendant herself.
4.1 During trial, the plaintiff's husband Balakrishnan was examined as P.W.1. Besides him, he examined one Ramachandran as P.W.2. For the contesting defendants, the first defendant (the mother of the plaintiff and the third defendant) was examined as D.W.1. For proving Ext.B-16 Will, its attestor Subramanian and its scribe Harisudhan, Advocate, were respectively examined http://www.judis.nic.in 6 as D.W.2 and D.W.3. On appreciating the evidence before it, the trial Court has upheld Ext.B-2 settlement deed as valid, but in the same breath has also held that Ext.B-16 Will is not genuine.
4.2 Aggrieved by this decree, the legatees under the Will, the first and the third defendants have come forward with present appeal. Challenging the finding upholding the validity of Ext.B-2 settlement deed, the plaintiff has preferred a cross objection.
5. Points for consideration:
1. Is Ext.B-16 Will genuine?
2. Is Ext.B-4 settlement deed valid?
Arguments:
6.1 The learned counsel for the appellant submitted: No Court shall approach a Will with suspicion or prejudice, and any amount of conjectures is no substitute to proof of facts creating a preponderating probability that the Will might not be genuine. Reliance was placed on the authority in Madhukar D. Shende Vs Tarabai Aba Shende [AIR 2002 SC 637], Thayammal Vs Ponnusamy & Another [(2008)8 MLJ 647]. The fact that a Will has excluded any of the natural heirs of the testator cannot ipso facto be taken as proof of suspicion as has been held by the Hon'ble Supreme Court in Ved Mitra Verma Vs Dharam Deo Verma [(2014)15 SCC 578], Mahesh Kumar by Lrs., Vs Vinod Kumar & Others [(2012) 4 SCC 387], Savithri & Others Vs. Karthyayani Amma & Others [(2007)11 SCC 621], Pentakota http://www.judis.nic.in 7 Satyanarayana & Others Vs Pentakota Seetharatnam & Others [AIR 2005 SC 4362], Meenakshiammal by Lrs., & another Vs Chandrasekaran & Others [(2005)1 SCC 280] and by this Court in G. Jayaraman & Others Vs Ranganayagi & Others [(2006)3 MLJ 633(DB)]. It may, depending on the circumstances in which the Will is executed, constitute a suspicious circumstance, but the same is not conclusive. Here the court below has faltered.
6.2 All that the law insists and declares as inviolable is that at least one of the two attesting witnesses to a Will should be examined before the Court. This has been done in the instant case when the appellants-legatees have examined P.W.2. In addition, they have examined its scribe as P.W.3, an Advocate. Arguing further, the learned counsel submitted that:
● Ext.B-16 Will was a registered Will. The testator has only affixed his LHT impression on the Will. He however, knows to sign his name, but this the testator himself has explained in the Will where he has stated that due to his then prevailing health condition he could not sign. The plaintiff did not dispute the genuineness of the thumb impression, as she had not cross examined any of the defendants' witnesses pointedly to shift the onus on the propounder of the Will to prove it. ● Merely, because the testator was ailing is no ground to suspect the Will, for the fact that he was advancing in age, and was also ailing provides http://www.judis.nic.in 8 adequate enough reasons to justify the timing of the Will. The ratio in Daulat Ram & Others Vs Sodha & Others [AIR 2005 SC 233] relied on.
● On why the plaintiff was excluded, the Will itself recites that the plaintiff had conducted herself in a manner that caused considerable heartburn to the testator. This is also spoken to by the first defendant as D.W.1 candidly, and the plaintiff could not elicit anything during her cross examination to create even a probability that her ire against the plaintiff was motivated.
● Finally, the plaintiff has not examined herself, instead has examined only her husband as P.W.1. Necessarily adverse inference needs to be drawn against her. Reliance was placed on the ratio in Ramji Jankiji & another Vs Munni Baba Kale kambalwala Jai Siyaram Dasji & others [AIR 1978 Patna 48], and Iswar Bai C.Patel alias Bachu Bhai Patel Vs Hahihar Behera & another [AIR 1999 SC 1341].
7. Justifying the correctness of the judgement of the Court below, and refuting the arguments advanced by the counsel for the appellant, the learned counsel for the plaintiff/respondent submitted:
● Admittedly, all except the 2nd defendant/ 2nd appellant, including the testator are permanently residing at Tirupur and the 2nd defendant alone resides with her family at Coimbatore. And, the Will was executed at http://www.judis.nic.in 9 Coimbatore, attested by one of the friends of 2nd defendant's husband Narayanamoorthi who has been examined as D.W.2, and registered at Coimbatore, not immediately but after a month. How to rule out active participation of 3rd defendant/2nd appellant or her husband in the execution of the Will?
● And, is it natural for the testator to execute the Will at Coimbatore and also to register the same there when the facilities for the same are available even at Tirupur? Here, D.W.2 has attempted to introduce himself as a family friend of the testator, but he hardly could provide even ordinary details about the family. Does not D.W.2 then pretends and attempts to establish a proximity to the testator, when the evidence suggests the opposite, and, given the fact that he has admitted himself to be a friend of the 2nd defendant's husband, is it not evident that D.W.2 was arranged by 2nd defendant's husband, and if that was so, how free could the testator be when he executed the Will? ● Secondly, the Will was executed on 04-01-1999 but it was registered exactly a month later, on 04-02-1999. According to D.W.1, the mother of the plaintiff, the Will was executed at the Sub Registry whereas D.W.2, the attesting witness, and D.W.3, the scribe would testify that it was executed at the office of the D.W.3. Is there not a material discrepancy regarding the place where the Will was executed? And, why should the Will be registered after a month? Are they not suspicious circumstances that arise naturally from the circumstances which the http://www.judis.nic.in 10 evidence suggest?
● Earlier the first defendant as Plaintiff had filed O.S.101 of 2004, (its plaint marked Ext.B-10), and in this the Will in question was not pleaded. If the Will was available why was it not pleaded at the earliest point of time? Before the institution of the suit, the plaintiff has issued Ext.A-7 suit notice, but in Exts.A8 & A9 reply, Ext.B-16 Will was not disclosed. Are not they tilt the needle of suspicion against the Will? The circumstances in this case bear similarity to the one in Govindaraj Vs Ponnammal & others [(2006)3 MLJ 35].
● The testator admittedly had not been in good health and his health report at the relevant time was not happy. D.W.2 admits that he had shivering in his hands, and D.W.1 admits that he was taking treatment at M/s K.G.Hosptial at Coimbatore. How to appreciate a Will as genuine, where the testator has indifferent health, was on frequent treatment at a hospital in Coimbatore, dependent on his wife, the first defendant, and the Will itself was executed at Coimbatore, registered at Coimbatore and attested by a friend of the 2nd defendant's husband. And, the testator, who admittedly knew to sign has only affixed his thumb impression. The totality of the evidence available would indicate that the testator could not have been in an ideal state of free mental disposition, and the Will could not have been executed out of his free will. In this context, the propounder of the Will ought to have examined http://www.judis.nic.in 11 the Sub-Registrar who registered the Will and his non-examination is a circumstance which would add to the weight of other facts to dispel the genuineness of the Will. Reliance was to the authority in Joseph Antorny Lazarus B Lrs., Vs A.J.Francis [AIR 2006 SC 1895], Govindan Chettiar Vs Akilandam alias Seethalakshmi & Others [1997-3 LW 673], Suguna Bai Vs Muniammal alias Dhanalakshmi [1996(2)MLJ 596] and Capt. Marcus R. Dare Vs Dr. Mrs. Eunic Rani Sankaran & another [(2006) 3 MLJ 1] ● Where the execution of the Will is shrouded in suspicion and where the beneficiary under the Will was shown to have taken an active interest in the execution of the Will, the burden is on the propounder of the Will to allay the suspicious circumstances attending the execution of the Will. Reliance was placed on the authorities in H. Venkatachala Iyengar Vs B.N.Thimmajamma & Others [AIR 1959 SC 443], Jagdish Chand Sharma Vs Narain Singh Saini by Lrs, & Others [(2015) 8 SCC 615] S.R.Srinivasa & Others S. Padmavathamma [(2010)5 SCC 274] Bharpur Singh & others Vs Shamsher Sigh [(2009)2 SCC 687] L.H.Vidyapooranan Vs L.H.Padmavathy & Others [(2005)1 MLJ 454(DB)].
Of Discussion & Decision
8. The authorities placed by rival side primarily provide a set of indicators that spotlights the circumstances which may taint a Will with suspicion and they are http://www.judis.nic.in 12 but a filtered few among the countless on the subject. An attempt is made in Bharpur Singh case [(2009) 3 SCC 687] to identify the circumstances that should commonly alert the Court's conscience in deciding on the genuineness of the Will. It is reproduced:
“ 23. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will :
(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
(ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
(iv) The dispositions may not appear to be the result of the testator's free will and mind.
(v) The propounder takes a prominent part in the execution of the Will.
(vi) The testator used to sign blank papers.
(vii) The Will did not see the light of the day for long.
(viii) Incorrect recitals of essential facts.” http://www.judis.nic.in 13 The Supreme Court wastes no time to remind in the next sentence that “the circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration..” while deciding on the genuineness of the Will.
9. The judicial pronouncements on proof of Will and every shades and angles of its genuineness taken as a whole, do not attempt to provide a complete check list of parameters, verifying whose presence or absence the genuineness of a Will could be ascertained. Guided by ordinary course of human conduct, they merely make a broad statement on the suspicious circumstances that may generally affect the genuineness of a Will. It can be summed up. The freedom a person has in directing how his properties shall be dealt with post his death is absolute. The power to execute a Will, with no correlative duties, manifests this freedom. It is hence, when a Will is propounded, law does not rush to presume that it is suspect, but is still anxious to satisfy itself that there are no suspicious circumstances clouding it. This has necessitated the Courts to demand a higher standard of proof in proving a Will, but still within the realm of rule of preponderance of probability. After all the need to test a Will for its genuineness arises posthumously, after the demise of the testator, and its genuineness (both as to the physical aspect of its execution and the mental state of the testator while executing it) could be gathered only from those who are closely associated with the execution of the Will and from the proximate circumstances attending its execution. Both – http://www.judis.nic.in 14 the oral testimony of the witnesses and the circumstances in which the execution of the Will is set, should complement each other, though not exactly as in a jig-saw puzzle, but definitely substantially, since the issue on genuineness of the Will is still has to be decided by the rule of probability. Hence, while collating and arranging the evidence for ascertaining the genuineness of the Will, Courts spots the empty spaces for any unexplained or unexplainable facts that create a probable doubt on the genuineness of the Will.
10. A close reading of the evidence indicates that nowhere the actual or rather the physical execution of the Will by the testator was doubted. But not the free Will of the testator. Here, two aspects are projected:
(a) That plaintiff, one of the daughters of the testator was excluded in the Will;
(b) That the testator would not have done it if the Will under consideration is a product to his free will.
11. It is not the exclusion of a natural heir that lends suspicion to a Will, but it will constitute one if it goes unexplained. The Will at hand not only has excluded the plaintiff, the younger daughter of the testator, but also his only son, who however chose to remain exparte. The reason for their exclusion is provided in the Will itself: It states that the plaintiff had married P.W.1 without the consent of the testator, and that she had given him heartburns and mental agony and had not participated in his life in times of difficulties. Turning to the http://www.judis.nic.in 15 exclusion of the son, the Will recites that the son has been irresponsible. 12.1 On the specific case of the exclusion of the plaintiff, it emerges as an indisputable fact that the plaintiff had love-married P.W.1. But is that as serious an aspect that should weigh in the mind of the testator to go to the extent of denying the plaintiff of any share in the legacy? That however belongs to his attitude, and law cannot prescribe what it may consider as an ideal or politically correct reaction for him.
12.2 Here, the testimony of plaintiff's mother/the widow of the testator, the first defendant in the case, becomes critical. In her chief examination she has deposed that the plaintiff and her husband had quarreled with the testator demanding his properties, and that weighed with him in excluding the plaintiff of any share in his properties when he executed Ext.B-16 Will. She reiterates this in her cross examination as well. It is true that she has deposed while she was living with her other daughter, the 3rd defendant in this case. But, given the ordinary course of human conduct as the basic criterion to understand the evidence of this mother, why should she testify against her own daughter? Here it is significant to state that this mother had instituted an earlier suit in O.S.101/2004. As per the copy of the plaint made available as Ext.B-10, it was a suit for injunction against the plaintiff and her husband, the P.W.1. And, the subject matter of the suit was the property given to her under settlement deed (plaint item 2 herein) of her husband in 1974. What emerges is that there is a love-lost relationship between the plaintiff and her parents, that she http://www.judis.nic.in 16 might have been quarreling with her father demanding properties, at any rate appeared to have conducted herself in a manner which appeared to have agonised the testator. Unless a particular motive is proved against the mother of the plaintiff for her to speak against the plaintiff and her husband, a mother's statement on how the conduct of her daughter had been painful to them deserves to be considered, or at least cannot be rejected. 13.1 The next point is whether the testator was in free will when he executed the Will? Here, the circumstances provided are that the testator had been taking treatment at Coimbatore, that he had some neurological ailments as a result of which he was not even in a position to even sign Will, and it was executed at Coimbatore, where the 3rd defendant lives in Coimbatore and that D.W.2, one of the attesting witness is a friend of her husband. 13.2 All these circumstances though presented to negate the genuineness of the Will, can also operate to prove its opposite: Was not the time normally considered ideal for an ailing person of advancing age, to consider the execution of the Will? If not then, when? Secondly, as to the reason for affixing a thumb impression instead of his signature, the Will itself makes a disclosure about it. A suggestion was made to D.W.1 that the testator was sick and unconscious when the Will was executed but that was denied by her. It was also suggested to her that she along with her other son in law (3rd 2nd defendant's husband) had brought the Will into existence and this too has been denied. Here the point is unless the plaintiff proves that her mother had http://www.judis.nic.in 17 hidden motives against one of her own daughters to deny her the properties, why should she aid in fabricating a Will and have it executed by her husband? 13.3 What this Court could not gather from the evidence, this all critical fact of mother's motive to act against the interest of her own daughter. But evidence is available to establish that the both the testator and the first defendant were dissatisfied with the plaintiff. If this dissatisfaction is a fact, and if it can be termed as a motive for her mother to speak against the plaintiff, then that the plaintiff should take the blame for this situation to emerge. It is in this circumstances, the other aspects attending the execution of the Will needs to be considered.
(a) The plaintiff says that her father was taking treatment when the Will was executed and was unconscious. The Will says that he had only shivering of hands. D.W.1 says that he was alright till he died. While, the Will was executed on 04-01-1999, the testator had died not immediately but after about fifteen months on 02-04-2000. Except a suggestion that the testator was unconscious at the relevant time when the Will was executed there is no evidence available before this Court to hold it thus.
(b) The next aspect is why Will was executed in Coimbatore and not at Tirupur? This per se cannot be a ground to suspect the genuineness of the Will, but may operate as one in combination with other facts. And the other facts available only suggest that the plaintiff and her husband http://www.judis.nic.in 18 had been quarrelsome. While there is no direct evidence on it, it is possible to infer that the testator might have chosen a place where he might have greater peace, but that is only an inference. And, on this D.W.1 was not seen probed by the plaintiff during her cross examination.
(c) Turning to the alleged discrepancy between the evidence of D.W.1 and D.W.3 on the place of execution is concerned, it is true that the former, the widow of the testator, aged over 60 years, had deposed that the Will was executed in the Sub Registry and the latter says that it was executed in his office. But both could be true. That the Will was registered is an admitted fact. Unless D.W.1 is proved to know that which constitutes the execution of a document in legal parlance, a lay man's idea on it cannot be doubted to create a debate on it.
14. The bottom line is to spread the evidence available on a broader plane to understand what emerges as the most preponderating probable inference. When it is attempted, this court finds that the evidence leads to a finding that Ext.B-16 Will is genuine. Necessarily the appeal deserves to be allowed.
15. Turning to the cross objection, the settlement deed in favour of the first defendant was executed by her husband, the father of the plaintiff on 17-03-1975 under Ext.A-1, the executant of this document had died some twenty-five years later, in 2000. He did not choose to cancel it during his life http://www.judis.nic.in 19 time. And, there is hardly any material in the suit on why this document is bad in law. The Cross objection, therefore cannot be sustained.
16. In the end, the appeal is allowed and the judgement and the decree of in O.S.No.593 of 2004 on the file of Additional District and Sessions Judge-cum- Fast Track Court No.2, Coimbatore is set aside and the suit is dismissed. Cross objection No.17 of 2010 is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
25.01.2019 ds Index : Yes / No Internet : Yes / No To
1. The Additional District and Sessions Court -
cum-Fast Track Court No.2, Coimbatore.
2. The Section Officer, High Court, Madras.
http://www.judis.nic.in 20 N.SESHASAYEE,J., ds Pre-delivery Judgment in A.S.No.388 of 2007 and MP.No.1 of 2007 & Cross.Obj. No.17 of 2010 25.01.2019 http://www.judis.nic.in