Madras High Court
P.P.R.Viswanathan vs Indumathi
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 27.11.2017
PRONOUNCED ON: 10.01.2018
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
TOS.No.18 of 2013
1.P.P.R.Viswanathan
2.K.Subramania Mohan Plaintiffs
Vs
1.Indumathi
2.P.Niranjan
3.P.Madhusudhan
4.N.Sowjanya
5.Jayashree
6.P.Viswambar
7.P.Nandanandhan
8.Sarasija M.Shankar
9.Vasundra Badrinath Gupta Defendants
Prayer:- This Testamentary Original Suit is filed under Sections 222 and 276 of the Indian Succession Act for the relief as stated therein.
For Plaintiff : Mr.R.Subramanian
For Defendants : Mr.P.K.Sivasubramaniam
JUDGEMENT
Originally, OP.No.73 of 2009 had been filed by two Petitioners, P.P.R.Viswanathan and K.Subramania Mohan, seeking probate of the last Will dated 14.12.2001, registered as Document No.111 of 2001 in the Office of the Sub Registrar, T.Nagar, Chennai, executed by Voora Sri Devamma and a Codicil was also executed by the same Testatrix , dated 14.1.2008.
2, Voora Sri Devamma died on 11.5.2008. She was the second wife of Voora Sri Ramulu Chetty, who died on 16.01.1941. Voora Sri Ramulu Chetty's first wife's daughter is P.Andalamma. P.Andalamma's son, Abiramudu was adopted by the Testatrix. However, he predeceased P.Andalamma and died as a bachelor on 11.6.1950. The Petitioners are the sons of sister and brother of the Testatrix. The 1st Respondent in the OP was the Managing Trustee of Voora Sri Ramulu Chetty Charities at No.86 (201), Govindappa Naicken Street, Chennai-1. The Respondents 1 to 6 in the OP were other children of the brother of the Testatrix . They had all given consent for grant of probate. Consequently, this Court had also passed orders granting probate by judgement dated 18.4.2009.
3. Thereafter, the other legal heirs of P.Andalamma had filed A.No.6575 of 2009, seeking to revoke the grant of probate. This Court, by order dated 16.6.2011, had allowed the said application and directed that the Will and Codicil of late Voora Sri Devamma must be proved in a manner known to law and converted the OP.No.73 of 2008 into TOS. Accordingly, TOS.No.18 of 2013 came into existence and the Plaintiffs in the said TOS were the two Petitioners, namely, P.P.R.Viswanathan and K.Subramania Mohan. There were originally five Defendants and the 2nd Defendant died pending the proceedings and his legal representatives were brought on record as the Defendants 3 to 8. The 4th Defendant also died during the proceedings and the 9th Defendant was brought on record.
4. In the petition, seeking probate of the Will and Codicil, it was stated that the Plaintiffs are the executors appointed by the deceased Testatrix under the Will executed by her on 14.12.2001 and registered as Document No.111 of 2001 in the Office of the Sub Registrar, T.Nagar, Chennai and also in the Codicil dated 14.1.2008. The 1st Plaintiff was the sister's son and the 2nd Plaintiff was the brother's son of the deceased Testatrix . The Testatrix was the wife of Sri Ramulu Chetty, who died on 16.01.1941. She adopted her step daughter's son, Abiramudu. He also predeceased her. The husband of the Testatrix had executed a Will dated 1.4.1941 and the same was also probated in OP.No.231 of 1941. It has been stated that the Testatrix had executed a Will dated 16.7.1998 and that was revoked and the Will which is now sought to be proved, was registered on 14.12.2001. Thereafter, the Testatrix bequeathed the movables mentioned in the said Will and consequently, there was a need arose to execute a Codicil, which was executed on 14.1.2008, particularly, with respect to immovable properties.
5. According to the Will, the property at No.13, Chinna Thambi Mudali Street, Chennai-1, was bequeathed to the Plaintiffs and to the 2nd and 3rd Respondents in OP.No.73 of 2009. The property bearing Door No.64, Varadha Muthiappan Street, Chennai-1, was bequeathed to the 1st Plaintiff and the 4th, 5th and 6th Respondents in OP.No.73 of 2009. The shops bearing Nos.10-19 in the ground floor and two houses bearing Nos.B and D in the first floor of the building in Door No.84, Varadha Muthiappan Street, (No.9, Kumarappa Maistry Street), Chennai-1 was bequeathed to the 1st Respondent in OP.No.73 of 2009. It was further stated that the Will and the Codicil were executed out of free will and consent of the Testatrix when she was in a sound and disposing state of mind. The Will was attested by S.U.Kannan and M.Suresh Kumar. The Codicil was attested by Giridharan and S.L.Muthiah. The Plaintiffs claimed that they should be granted probate of the Will in their favour.
6. It must also be mentioned that the Respondents in OP.No.73 of 2009 had not given any objection to the grant of probate and this Court, as stated earlier, had granted probate of the Will by order dated 18.4.2009. However, in A.No.6575 of 2009, filed by the Defendants herein, the grant of probate had been revoked and the OP had been converted into TOS.
7. The 1st, 5th and 9th Defendants in their written statement, have stated that Voora Sri Ramulu Chetty had executed a Will dated 7.4.1941, which was probated in OP.No.231 of 1941 by this Court. He had expressed a desire to adopt Abiramudu, son of P.Andalamma, who was the daughter of the first wife of Voora Sri Ramulu Chetty. Accordingly, Abiramudu was adopted by Voora Sri Devamma, the Testatrix. He died as a bachelor on 11.6.1950. The Defendants are the sons and grand children of P.Andalamma. According to the Defendants, they are the only legal heirs of the deceased Voora Sri Devamma and they are alone entitled to the properties in case of intestate succession. It has been stated that the Plaintiff had deliberately suppressed the legal heirs of P.Andalamma in OP.No.73 of 2009. They claimed that the Will and the Codicil are fabricated documents. It was further stated that the deceased was not in a disposing state of mind and had not executed them out of her free will and understanding.
8. It has been further stated in the written statement that with an ulterior motive to sell the immovable properties, the Plaintiff had committed several acts of fraud on the estate of the deceased. They had entered into a joint development agreement dated 19.6.1993 even before execution of the Will. It has been stated that the Codicil is undated and fabricated. It has been stated that the joint development agreement as stated above was entered into on 19.6.1993 much before the Will dated 14.12.2001. It has been stated in the Codicil that 10 shops were constructed and residential buildings B-D were constructed in the first floor and an area of 3858 sq.ft. of constructed area was allotted to the deceased and bequeathed to Voora Sri Ramulu Chetty Charities, created by the husband of the deceased.
9. It has been stated that the 1st Plaintiff was one of the trustees of Voora Sri Ramulu Chetty Charities. It has been stated that though the Will dated 14.12.2001 was registered, the Codicil was not registered. It has been further stated that it was incorrectly stated about the earlier Will, dated 17.7.1998, registered as Document No.89 of 1998 in the Office of the Sub Registrar, T.Nagar that it was revoked. It has been stated that a pooja room was to be constructed at Door No.84, Varadha Muthiappan Street, Chennai and to be jointly managed by K.Subramania Mohan and her grand son, P.Madhusudhan, the 3rd Defendant and the said statement is not found in the Will dated 14.12.2001. A building was constructed earlier and item (3) was allotted to the deceased on the basis of a compromise decree of Madras High Court. It has been stated that the Will had been printed in a computer at the instance of the propounder by S.Malliga at No.1/367, Singara Thottam, Vandalur, Chennai-48.
10. It has been further stated that the computer print out had been taken without the intention being expressed by the deceased in a draft. A similar fraud had been played in updating the Codicil, which is signed by the witness outside the place of residence of the deceased. It has been stated that both the Will and the Codicil are documents executed by the deceased when she did not understand the contents and when she was not in a sound and disposing state of mind. It has been stated that the deceased was a Telugu Arya Vysya old lady, who was said to have signed in English and she did not understand the contents and there was also no endorsement that the documents was translated in Telugu and explained to her. It has been stated that the plaint should be dismissed.
11. On consideration of the pleadings, this court had framed the following issues for trial:-
1.Whether on the facts and in the circumstances of the case, the Plaintiffs are entitled to a judgement and decree that the last Will dated 14.12.2001, registered as Document No.111 of 2001, in the Office of the Sub Registrar, T.Nagar, Chennai and the Codicil, dated 14.01.2008 of late Voora Sri Devamma is proved as valid?
2.Whether the Will dated 14.12.2001 and codicil dated 14.1.2008 of Voora Sri Devamma had been executed in a sound and disposing state of mind?
3.Whether on the facts and in the circumstances of the case, the Defendants are entitled to question the genuineness of the last Will dated 14.12.2001 registered as Document No.111 of 2001 in the Office of the Sub Registrar, T.Nagar, Chennai, and the codicil dated 14.1.2008 of late Voora Sri Devamma?
4.Whether the deceased was the author of the alleged Will and codicil?
5.Whether on the facts and in the circumstances of the case, the Defendants are entitled to question the manner of the bequeath made by the deceased late Voora Sri Devamma in the last will dated 14.12.2001 registered as Document No.111 of 2001 in the Office of the Sub Registrar, T.Nagar, Chennai and the codicil dated 14.01.2008?
6.Whether the executors have fabricated the Will and Codicil without the knowledge of the deceased?
7.Whether on the facts and in the circumstances of the case, the Defendants are entitled to question the genuineness of the last Will dated 14.12.2001, registered as Document No.111 of 2001 in the Office of the Sub Registrar, T.Nagar, Chennai and the Codicil dated 14.1.2008 of late Voora Sri Devamma when the 3rd Defendant, namely, P.Madhusudhan was very much aware of the probate proceedings and he had even signed the consent affidavit for granting the probate in his representative capacity as a trustee of the beneficiary trust namely Voora Sri Ramulu Chetty Charities?
8.Whether the Will and Codicil were executed by the deceased in the presence of the attesting witnesses?
9.Whether on the facts and in the circumstances of the case, the Defendants are entitled to question the genuineness of the last Will dated 14.12.2001 registered as Document No.111 of 2001 in the Office of the Sub Registrar, T.Nagar, Chennai and the codicil dated 14.1.2008 of late Voora Sri Devamma, when the 1st, 4th, and 5th Defendants herein were the beneficiaries under the Will who have received a sum of Rs.5000 towards manjal kunkumum expenses as per the codicil dated 14.1.2008 of the deceased Voora Sri Devamma and the 3rd Defendant herein is one of the person who was witness to the distribution of the same to the persons listed in the Will and he has signed a letter to that effect?
10.Whether the executors have fraudulently applied for probate without impleading the legal heirs of the deceased?
11.Whether on the facts and in the circumstances of the case, the Defendants are entitled to question the genuineness of the last Will dated 14.12.2001 registered as Document No.111 of 2001 in the Office of the Sub Registrar, T.Nagar, Chennai and the codicil dated 14.1.2008 of late Voora Sri Devamma considering the fact that the codicil dated 14.1.2008 is a mere reproduction of the aforesaid Will dated 14.12.2001 and it had executed the distribution of gold and diamond ornaments contained in the Will dated 14.12.2001 which was distributed by the deceased herself during her life time?
12.To what relief are the parties entitled to?
12. The parties led oral evidence and also produced documents as evidence. During the trial, on the side of the Plaintiffs, two witnesses were examined. The 1st Plaintiff, P.P.R.Viswanathan, was examined as PW.1. S.U.Kannan, who was one of the attesting witnesses to the will dated 14.12.2001, was examined as PW.2. PW.3, S.L.Muthiah was one of the attesting witnesses to the Codicil dated 14.1.2008. PW.4 Giridharan was a third person, who knew the deceased Testatrix and who was the another witness to the Codicil dated 14.1.2008.
13. The Plaintiffs marked Ex.P1 to Ex.P6. Ex.P1 is the original Will dated 14.12.2001. Ex.P2 is the original codicil, dated 14.1.2008. Ex.P3 is the death certificate, dated 21.5.2008. Ex.P4 is the copy of the partition deed, dated 25.9.1997 and Ex.P6 is the copy of rectification deed, dated 28.2.2005. On the side of the Defendants, P.Madhusudhan, who is the 3rd Defendant, was examined as DW.1. The Defendants marked Ex.D1 to Ex.D3. Ex.D1 is the copy of notice dated 16.2.2016. Ex.D2 is the copy of the first Will dated 16.7.1998 and Ex.D3 is the copy of statement of accounts.
14. This court heard the arguments of Mr.R.Subramanian, the learned counsel for the Plaintiffs and Mr.P.K.Sivasubramanian, the learned counsel for the Defendants.
15. The learned counsel for the Plaintiffs has pointed out that the Will Ex.P1 was a registered Will and the original Will had been produced in the court. In the said Will, the Testatrix had bequeathed both movable and immovable properties. Since during her life time, she had disposed of movables, necessity arose to execute a Codicil and accordingly, Ex.D2 was executed. During the trial, both Ex.P1 and Ex.P2 had been proved in a manner known to law by examining the attesting witnesses. It has been stated that in OP.No.73 of 2009, all the legatees and beneficiaries of the Will and the Codicil had been shown as parties. It was further stated that there had been a partition deed between the Testatrix and the Defendants and thereafter,the Defendants were also allotted various properties. They had separated themselves from the family of the Testatrix . It was only for that reason that they were not shown as parties in OP.No.73 of 2009. However, in their application, this Court had revoked the probate granted earlier and had directed that they must be shown as the Defendants.
16. According to the learned counsel for the Plaintiffs, the Will had been proved in a manner known to law and the witness had withstood cross examination. There was no suspicious circumstances surrounding the Will. There was a necessity to execute a Codicil and since the other terms of the Codicil were the same as that of the Will Ex.P1, there was no necessity to register the same. He further pointed out the evidence of the witnesses, who stated that the Will was signed when the Testatrix was in a sound and disposing state of mind and the attesting witnesses to both the Will and the Codicil clearly stated that they saw her signing, they signed in her presence, she saw them signing and she signed in their presence. It was, therefore, stated that the requirements under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act have been satisfied and the Will and Codicil had been proved in a manner known to law.
17. On the other hand, the learned counsel for the Defendants has stated that there were number of suspicious circumstances surrounding the execution of the Will and the Codicil. The learned counsel stated that while the Will was registered, the Codicil was unregistered. He has further stated that the attesting witnesses did not know each other. They did not know the contents of the Will. Further, the Testatrix was an old lady, who knew only Telugu language and she is said to have singed in Tamil and that the entire Will and the Codicil are fabricated and forged documents. The learned counsel has further pointed out that the properties had been dealt with even before execution of the Will and consequently, since these developments had not been mentioned in the Will or in the Codicil, they cannot be considered as true documents.
18. The learned counsel for the Defendants has further stated that in the Original Petition, deliberately there was suppression of the fact that there were legal representatives of P.Andalamma, who is the step daughter of the deceased Testatrix and the Defendants herein were not included as the Respondents. This Court had permitted the OP to be converted into TOS and the OP must be rejected since all the kith and kin were not impleaded as the Respondents. In fact, the OP is not in accordance with the forms and rules contemplated under the Original Side of the High Court of Madras and on that ground also, the OP must be rejected. The learned counsel has stated that in view of the substantial suspicious circumstances surrounding the execution of the Will and the Codicil, the suit must be dismissed.
19. I have carefully considered the rival arguments of the learned counsel on either side.
20. Issues (1), (2) (6) and (8):- This TOS is with respect to the determination of the Will and the Codicil of the Testatrix , Voora Sri Devamma. Voora Sri Devamma was the second wife of Voora Sri Ramulu Chetty. Voora Sri Ramulu Chetty died on 1.1.1941. He had also executed a Will, which was probated by this Court in OP.No.231 of 1941. P.Andalamma was the daughter of the first wife of Voora Sri Ramulu Chetty. She had a son, Abiramudu. It was the wish of Voora Sri Ramulu Chetty that Abiramudu must be adopted by Voora Sri Devamma. Accordingly, Abiramudu was adopted by Voora Sri Devamma. There were no other issues. Abiramudu, predeceased Voora Sri Devamma and died as a bachelor on 11.6.1950. Voora Sri Devamma is said to have executed a first Will, which was marked and produced as EX.P2. This was dated 16.7.1998. It was registered as Document No.87 of 1998 in the Office of the Sub Registrar, T.Nagar, Chennai. The said Will was in Tamil. In the said Will, she has stated that her marriage with Voora Sri Ramulu Chetty took place in 1934. Even in the said Will, she has stated that Voora Sri Ramulu Chetty wished that the son of P.Andalamma, who is the daughter of his first wife, must be taken in adoption by her. Accordingly, she adopted the said son by name Abiramudu as her adopted son. He died as a bachelor on 11.6.1950.
21. Even in the said Will produced as Ex.D2 dated 16.7.1998, she had stated about the disputes in her family, vdf;Fk; Mz;lhsk;khhs; FHe;ijfSf;Fk; kw;Wk; vdJ rnfhjuh; Rg;gpukzpa brl;of;Fk; Vw;gl;l tpnuhjj;jpd; fhuzkhf vdJ ngud; epu";rd; vdJ rnfhjuiu. vdJ fzth; fhy";brd;w Cuh _uhKY brl;o mth;fspd; capy; epiwntw;Wgtuhf ,Ug;gij ePf;fntz;o kD jhf;fy; bra;jhh;. It is thus seen that even at that point of time, there was simmering differences between the deceased Testatrix and the legal heirs of P.Andalamma. In the said Will, she further mentioned about the oral partition dated 9.4.1997 and the agreement, dated 30.4.1997. She has further stated about the division of the properties. The partition deed was produced as Ex.P4, which was dated 25.9.1997. This had been executed between Voora Sri Devamma, the Testatrix and P.Niranjan, who was shown as the 2nd Defendant in TOS, Indumathi, the 1st Defendant, P.Madhusudhan, 3rd Defendant, N.Sowjanya, the 4th Defendant, Jayashree, 5th Defendant and also P.Andalamma, who was shown as the party of the third part.
22. Ex.P6 is the copy of the rectification deed dated 28.2.2005. In Ex.P4, partition deed, once again, the dispute among the family members with respect to the division of the estate of Voora Sri Ramulu Chetty was mentioned. In fact, in the said partition, P.Andalamma was shown as the third party to the document only with an intention to effectively assure the 1st and 2nd parties of their rights under the Will of Voora Sri Ramulu Chetty. She was not given any right under the Will dated 7.1.1941 of Voora Sri Ramulu Chetty. It is thus seen that there had been an effective partition between Voora Sri Devamma, the Testatrix and the family of the legal representatives of P.Andalamma. However, the legal representatives of P.Andalamma had claimed that they were interested persons in her estate and had filed a caveat and on their application, the OP was converted into TOS.
23. The main dispute is with respect to the bequeath of the properties. The entire evidence shows that they had challenged the execution of the Will only on account of dispossession and exclusion from being given a share in the properties. But a reading of the history of the family shows that it was only natural that Voora Sri Devamma had excluded the Defendants from being given any share because they had already benefited by partition deed, which was executed on 25.9.1997 and marked as Ex.P4 and subsequently, confirmed in the rectification deed marked as Ex.P6, dated 28.2.2005. Since the Defendants herein had already been given their shares, the remaining portions alone had been bequeathed by the Testatrix of the Will. As a matter of fact, the substantial beneficiary of the Will is the 1st Respondent in the OP, which is a Trust, by name, Voora Sri Ramulu Chetty Charities. Consequently, I hold that even without examining the validity of the Will, there cannot be any doubt shown over the bequeath of the properties.
24. The Will and the Codicil will now have to be examined. The Will is a registered Will, bearing Document No.111 of 2001 dated 14.12.2001. Even at the outset, the Defendants had executed a partition deed, by which they had been the beneficiaries of substantial properties of Voora Sri Ramulu Chetty and that partition deed was also registered. The Will in Ex.P1 is also a registered document and the partition deed was dated 25.9.1997 and the Will was dated 14.11.2001. Proximity was very close. Had the Defendants really suspected the genuineness of the signature of Voora Sri Devamma in Ex.P1 Will, they could easily have sought for examination of the same by an expert. They did not do so.
25. Presumption of a registered document has to be drawn with respect to Ex.P1. Section 114(g) of the Indian Evidence Act is as follows:-
114. Court may presume existence of certain facts. The court may presume the existence of any fact which it things likely to have happened regard being had to the common course of natural events human conduct and public and private business, in their relation to the facts of the particular case.
(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who holds it.
26. Section 63 of the Indian Succession Act is as follows:-
63. 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 seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement 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.
27. Section 68 of the Indian Evidence Act is as follows:-
68. Proof of execution of document required by law to be attested.
If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
Provided that it shall be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
28. In 2002 1 CTC 244 (Madhukar D.Shende Vs. Tarabai Aba Shedage) in paragraph 8, the Honourable Supreme Court had held as follows:-
8.The requirement of proof of a will is the same as any other document excepting that the evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the court either believes that the will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the will was duly executed by the testator, then the factum of execution of will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers.
The conscience of the court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well-founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict positive or negative.
29. In 2005 1 CTC 443 SC (Sridevi and others Jayaraja Shetty and others) it was held in paragraph 14 as follows:-
14. The propounder of the Will has to show that the Will was signed by the testator; that he was at the relevant time in sound disposing state of mind; that he understood the nature and effect of dispositions and had put his signatures to the testament of his own free will and that he had signed it in the presence of the two witnesses who attested in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. DW 2, the scribe, in his testimony has categorically stated that the Will was scribed by him at the dictation of the testator. The two attesting witnesses have deposed that the testator had signed the Will in their presence while in sound disposing state of mind after understanding the nature and effect of dispositions made by him. That he signed the Will in their presence and they had signed the Will in his presence and in the presence of each other. In cross-examination, the appellants failed to elicit anything which could persuade us to disbelieve their testimony. It has not been shown that they were in any way interested in the propounders of the Will or that on their asking they could have deposed falsely in court. Their testimony inspires confidence. The testimony of the scribe (DW 2) and the two attesting witnesses (DWs 3 and 4) is fully corroborated by the statement of the handwriting expert (DW 5). The Will runs into 6 pages. The testator had signed each of the 6 pages. The handwriting expert compared the signatures of the testator with his admitted signatures. He has opined that the signatures on the Will are that of the testator. In our view, the Will had been duly executed.
30. In AIR 2003 SC 3109 (Ramabai Padmakar Patil (dead) by LRs and others Vs. Rukminibai Vishnu Vekhande and others) in paragraph 8 it was held as under:-
8. A Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance, especially in a case where the bequest has been made in favour of an offspring.
31. In 2007 11 SCC 621 (Savithri and others Vs. Karthyayani Amma and others) it was held as under:-
15. The will was admittedly registered. The testator lived for seven years after execution of the will. He could change his mind; he did not. The very fact that he did not take any step for cancellation of the will is itself a factor which the Court may take into consideration for the purpose of upholding the same.
32. In AIR 1995 SC 1684 (Rabindra Nath Kukherjee and another Vs. Panchanan Banerjee), in paragraph 4, it was held as below:-
4. As to the first circumstance, we would observe that this should not raise any suspicion, because the whole idea behind execution of will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of will; of course, it may be that in some cases they are fully debarred and in others only partially.
33. In 2008 8 MLJ 753 (Muniammal Vs. Annadurai (deceased) and others) this court had also in paragraph 27 had held that registration of the Will is an additional factor to establish the genuineness of the Will.
34. In AIR 1959 SC 443 (H.Venkatachala Iyengar Vs. B.N.Thimmajamma and others) in paragraphs 18, 19 and 20, it was held as under:-
18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression a person of sound mind in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
35. In the present Will marked as Ex.P1, the Testatrix had very clearly stated about the marriage between herself and Voora Sri Ramulu Chetty in the year 1934. She further stated that he died on 16.1.1941 and they had no children. She further stated about the Will of Voora Sri Ramulu Chetty, dated 7.1.1941, which was probated in OP.No.231 of 1941. She further stated about the wish that she must take in adoption one of the sons of P.Andalamma, who was the daughter of the first wife of Voora Sri Ramulu Chetty. Accordingly, she had taken Abiramudu, son of P.Andalamma as her adopted son. However, he died on 11.6.1950 as a bachelor. She then dealt with the properties in A-Schedule and B-Schedule. She also dealt with the jewels and movables.
36. As stated above, the Will had been witnessed by two witnesses, S.U.Kannan and M.Suresh Kumar. Before this Court, S.U.Kannan was examined as PW.2 and he had filed his proof affidavit. In his proof affidavit, he clearly stated that he was present along with M.Suresh Kumar in the Office of the Sub Registrar, T.Nagar and saw her signing at the foot of the Will and they also signed in her presence. A perusal of Ex.P1 further reveals that S.U.Kannan was not only one of the attesting witnesses, but also he was also one of the identifying witnesses, who identified the Testatrix before the Sub Registrar. He was cross examined on behalf of the Defendants in extension. He has stated that he was working under PW.1. The learned counsel for the Defendants stated that the evidence of PW.2 must be rejected because of this one fact. I do not agree with the said contention.
37. As a witness a person is chosen, who would outlive the Testator and would be available to prove the Will in a Court of law. It is only natural that persons, who are in confidence, would be chosen as a witnesse. They must not only the persons of confidence, but also be persons who will always be available and whose addresses can be easily located. From that angle, there is nothing strange in an employee being asked to be a witness to a Will.
38. With respect to Voora Sri Devamma, PW.2 is totally a stranger. He is not a beneficiary under the Will. He may be working under the Executor, but that does not disqualify him from signing as a witness to the Will. In fact, this also establishes the fact that as an employee of the Executor, who is the nephew of the Testatrix , PW.2 must have known the Testatrix and therefore, he was in a position to identify her before the Sub Registrar. During her cross examination, it was stated that he did not know the reason for which he went to the Office of the Sub Registrar. It must be remembered that the Will was executed in the year 2001 and the witness was giving evidence in the year 2016. Naturally, the date, which is evident on the face of the record, had been cautiously stated as not known .
39. The learned counsel for the Defendants has stated that PW.2 did not know, who prepared the Will and did not know the details about the other attesting witness. It is natural that PW.2 would not know about who prepared the Will as his only role is to sign the Will in the presence of the Testatrix and see that the Testatrix signed in his presence and in the presence of the other witnesses. Personal acquaintance is not required for such purpose. He clearly stated that the Testatrix signed in his presence. Details about where the Sub Registrar Office is located are immaterial. He clearly stated that that The Testatrix read the document in the Sub Registrar Office and signed the Will. The Testatrix knows Tamil and she spoke to him in Tamil. This came out during the cross examination and this statement is in favour of the Plaintiffs and extracted by the Defendants during the cross examination. The answers by PW.2 are very honest. He did not give any created story about knowledge of the other attesting witness. He openly admitted that he did not know the other attesting witness directly. This is a true and honest statement. Therefore, I find that the evidence of PW.2 is credible and is to be accepted. Requirement of law is that any one attesting witness must be examined to prove the execution of the Will. In this case, Ex.P1 is a registered Will, which in fact draws an assumption in its favour, but however, it is to be proved in a manner known to law and for that aspect, PW.2 had been examined and he withstood the cross examination and therefore, on this ground, I hold that Ex.P1 has been proved in the manner known to law.
40. The issues also surround the proof of Ex.P2 Codicil. The learned counsel for the Defendants assailed Ex.P2 on the ground that it was not registered. It need not be registered. A Codicil or any Will need not be registered to show its authenticity. As a matter of fact, Ex.P2 is only an extension of Ex.P1. A perusal of Ex.P1 would show that it contained A-Schedule immovable properties and B-Schedule jewels, silver items and other movables. In the Codicil in Ex.P2, which was dated 14.1.2008, more than six years after execution of Ex.P1, the Testatrix had mentioned the jewels that vdJ fzth; vGjpa capypy; go vdf;F te;j eiffSk; vdJ beU';fpa Rw;wj;jhuh;fSf;Fk;. ez;gh;fSf;Fk; gy re;jh;g;g';fspy; ed;bfhilahf bfhLj;jJ nghf. kPjpapUf;Fk; fPHf;fz;l eiffis (j';fk;. ituk;. bts;sp) ehd; KGkdJld; vd;Dila Rw;wj;jhUf;F giHa capypy; Fwpg;gpl;lgo vd; ifahy; bfhLj;Jtpl;nld; vd;gija[k; bjhptpj;Jf;bfhs;fpnwd;@/ Thereafter, she had also given a list of 13 items, which she had bequeathed as gifts. Thereafter, she had mentioned about A-Schedule immovable properties and had reiterated what was bequeathed earlier in Ex.P1 Will and the same bequeath was reconfirmed. She also mentioned about the fixed deposits . Once again, this is a comprehensive codicil without any alteration, except confirming the bequeaths made subsequent to Ex.P1.This Codicil was witnessed by Giridharan and S.L.Muthiah.
41. Giridharan was examined as PW.4 and S.L.Muthiah was examined as PW.3. PW.3 also had filed his proof affidavit and during his cross examination clearly stated that when he signed the Codicil, Giridharan was present. He has stated that during the course of cross examination, the witness denied the suggestion that the Testatrix was not in a sound and disposing state of mind and that he did not saw the Testatrix signing the document. Even though he has stated that he did not know who prepared and typed Ex.P2, the only aspect is the signing as an attester to the Codicil and that the Testatrix was in a sound and disposing state of mind.
42. To further substantiate, the Plaintiffs had examined as PW.4, Giridharan, the other attesting witness of the Codicil. He had also filed his proof affidavit. During his cross examination, the learned counsel for the Defendants pointed out that he has stated that he did not know whether Ex.P2 Codicil was prepared under the instructions of the Testatrix. But, once again, that is an irrelevant fact. The only aspect is signing the Codicil in the presence of the Testatrix and the Testatrix seeing and signing in the presence of the witnesses. He also denied the suggestion that the Testatrix was not in a sound and disposing state of mind and that Ex.P2 was fabricated. He denied that Ex.P2 was fabricated. It must be remembered that the witnesses were being examined after substantial period from the date of attesting the witnesses and the Codicil. There will be minor discrepancies, but that cannot be taken as a major issue. The only aspect is that as between the witnesses, if there are minor contradictions, the fact to be established is the attestation of the Will in the presence of the Testatrix and attestation of the Codicil again in the presence of the Testatrix. Requirements under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act have been satisfied with respect to both Ex.P1 and Ex.P2.
43. It must also be seen that the Testatrix and the Defendants in TOS had entered into a partition deed, separating the properties already owned by Voora Sri Ramulu Chetty and allocating substantial portions to the Defendants therein. Therefore, the fact that they were not made parties in the OP is not of much significance at the present stage since the present trial has been conducted in their presence.
44. The learned counsel for the Defendants has stated that the petition was not in accordance with the rules of the Original Side. A form had been given in the Original Side and the necessary ingredients are the date of death of the Testatrix , date of the Will and the disclosure of assets. Once these are given, it must be held that sufficient details had been disclosed for grant of probate. The date of death of the Testatrix had been mentioned and the date of the Will had also been mentioned . The date of the Codicil had also been mentioned. It has also been stated that they had been executed in the presence of two attesting witnesses. Relevant details have been given and strict adherence to the form is not necessary. The form has been given as a guide line for preparation of a petition, seeking grant of probate. It has been mentioned by the learned counsel for the Defendants that there is a declaration in the form as to inclusion of kith and kin. Since they had been impleaded as the Defendants, the said ground does not survive any further. The trial has been conducted in the presence of the Defendants. They had been granted an opportunity to cross examine the witnesses.
45. DW.1 was examined on behalf of the Defendants. He admitted to Ex.P4 partition deed. He has further stated that B-Schedule in Ex.P4 partition deed can be dealt with by the Testatrix in any manner which she deems fit. He further stated that the partition deed had been accepted and acted upon. He also admitted to the rectification deed Ex.P6. He also stated that at that particular point of time, the Testatrix was in a sound state of mind. It must be kept in mind that the rectification deed was dated 28.2.2005. The Will was much earlier dated 14.12.2001 and the Codicil was just 3 years later on 14.1.2008. With respect to the rectification deed, the witness stated that The deceased Sri Devamma presently came to the Sub Registrar Office and registered Ex.P6 and at that time she was in good health.
46. With respect to Ex.P1,Will, DW.1 admitted as follows during the cross examination:-
I also accept that Ex.P1 Will was executed by deceased Voora Sri Devi Ammal where she came personally to execute the same before the Registrar in the year 1997. Ex.P3 is the death certificate of Voora Sri Devi Ammal. I accept after the demise of Voora Sri Devi Ammal that a sum of Rs.5000 was distributed in terms of the Will dated 14.1.2008 to around 26 persons which was confirmed by me in Ex.P5.
47. The Will dated 14.1.2008 is the Codicil. The witnesses for the Defendants themselves accepted the execution of the Will and the Codicil. By examining PW.2, PW.3 and PW.4, the Will and the Codicil had been proved in the manner known to law. DW.1 have given evidence after the cross examination of PW.2, PW.3 and PW.4. Even then, very honestly he admitted to execution of Ex.P1 and Ex.P2 and further stated that both the documents had also been acted upon. In fact, he had also given a consent affidavit as a trustee of Voora Sri Ramulu Chetty Charities when OP.No.73 of 2009 was filed. He admitted to that also. He has stated that during the cross examination that it is correct to state the in paragraph 5, of my consent affidavit, I further state that in view of the above facts, the 1st Respondent is having no objection and thereby giving his consent for grant of probate to the Petitioners. The witness was not re-examined by the learned counsel for the Defendants on those aspects.
48. A further analysis of the evidence on record and the documents on record clearly shows that both Ex.P1 Will, which is registered and Ex.P2, Codicil which is not registered, have been proved in the manner known to law. In so far as Ex.P1 is concerned, the Plaintiff had examined PW.2, the attesting witness and in so far as the Codicil is concerned, the Plaintiff had examined PW.3 and PW.4 both attesting witnesses. Moreover, DW.1 had himself accepted that the Will and the Codicil had been acted upon and amounts were distributed according to the said documents. For all these grounds, I hold that the Plaintiffs have proved Ex.P1 and Ex.P2 in the manner known to law. Accordingly, issues (1), (2) (6) and (8) are answered in favour of the Plaintiffs.
49. Issue (3):- Since the Will had been held to be proved in the manner known to law, I hold that the Defendants cannot question the genuineness of the said Will and I, therefore, answer the said issue as against the Defendants.
50. Issue (4):- I hold that both the Will and the Codicil have been proved in the manner known to law and that it was Voora Sri Devammal, the Testatrix , who actually executed Ex.P1 and Ex.P2 and this issue is answered accordingly.
51. Issues (5), (7), (9) and (11):- These issue surround the manner and nature of bequeath in the Will. As stated above, Ex.P1 has two Schedules, namely, A-Schedule and B-Schedule. In so far as A-Schedule is concerned, it consists of immovable properties. B-Schedule consists of movables. As a preamble in the Will which had been extracted, Voora Sri Devamma clearly mentioned about the disputes and the partition between herself and the legal heirs of her step daughter P.Andalamma. The Defendants are the said legal representatives. There was a partition deed wherein immovable properties had been allotted to them. Only the remaining properties were bequeathed by Voora Sri Devamma. Even in that, a substantial property was bequeathed to the Trust in the name of her husband. I, therefore, hold that the Defendants are not entitled to question the nature of bequeath. Subsequent to the execution of Ex.P1, the Codicil became necessary since the movables namely jewels were already disposed of and gifted by Voora Sri Devamma. She had very clearly mentioned about the same in Ex.P2 Codicil. However, the nature of bequeath with respect to the immovable properties were not changed. She had specifically mentioned about the earlier Will in the Codicil. She had stated that she is not making any changes in the Will with respect to the immovable properties, but only stating as a matter of fact that the movables had already been distributed. Consequently, the Defendants have raised an objection more out of frustration than on any legal grounds. As a matter of fact, the witnesses for the Defendants DW.1 had himself stated that nearly 26 persons have been benefited through distribution of cash in accordance with the Codicil Ex.P2. He also stated that the Will was executed by Voora Sri Devamma in the Sub Registrar Office and he had also given consent when OP.No.73 of 2009 was filed. He was not re-examined by the learned counsel for the Defendants. The Defendants did not choose it necessary to examine any other party on their side. For all these reasons, these issues are answered against the Defendants and in favour of the Plaintiffs.
52. Issue (10):- This issue arises out of non impleading of the kith and kin in the OP. The issue does not survive any more since subsequent to the revocation of the probate, the Defendants have been shown as the parties and they have also participated in the proceedings. This was a ground seeking revocation of the probate granted in OP.No.73 of 2009. But, the TOS was contested by the Defendants, who had filed their written statement, who had cross examined the witnesses for the Plaintiff and who had let in evidence on their side. Consequently, this issue does not survive and accordingly, this issue is answered in favour of the Plaintiffs and against the Defendants.
53. Issue (12):- I hold that the Plaintiffs are entitled to the grant of probate as prayed for.
54. In the result, this TOS is decreed as prayed for. Issue probate in favour of the Plaintiffs. No costs.
10.01.2018 Index:Yes/No Web:Yes/No Speaking/Non Speaking Srcm To:
1. The Record Keeper, VR Section, High Court, Madras C.V.KARTHIKEYAN, J.
Srcm Pre-Delivery Judgement in TOS.No.18 of 2013 10.01.2018