Madras High Court
K.N.Ramanathan vs K.N.Srinivasan on 6 December, 2000
ARESERVED ON : 30.01.2017
DELIVERED ON : 08.02.2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CORAM
THE HON`BLE MR.JUSTICE N.SATHISH KUMAR
T.O.S.No.21 of 2004 in
(O.P.No.737 of 2001)
K.N.Ramanathan ... Plaintiff
Vs.
1. K.N.Srinivasan
2. Lakshmi Ramachandran
3. S.Balasaraswathi
4. R.Rajeswari .. Defendants
Original Petition No 583 of 1993 was filed under Sections 232 and 276 of Indian Succession Act, XXXIX of 1925 for the grant of letters of Administration. Against this petition a Caveat was filed on by the Caveators As per order of this Court, the Original Petition No.737 of 2001 was converted into Testamentary Original Suit No.21 of 2004.
For Plaintiff : Ms.G.Sumitra
For defendants : Mr.Abdul Hameed
for M/s.Anand, Abdul & Vinodh Associates
J U D G M E N T
The petition originally filed for the grant of Letters of Administration has been converted as suit in view of the caveat filed by the defendants herein.
2. The brief facts of the case of the plaintiff are as follows:-
The father of the plaintiff K.S.Narayanan died testate leaving behind the Will dated 06.12.2000 bequeathing the suit property to the plaintiff. Hence prayed for grant of Letters of Administration.
3. The first defendant remained exparte.
4. Brief facts of the written statement filed by the defendants 2 to 4 :
Denying the Will, the contention of the defendants is that their father K.S.Narayanan has purchased various properties out of his own earning and has sold one such property for a sum of Rs.50,00,000/- and out of the sale price, he had purchased the property bearing door No.41/1,Subramanian Street, Abiramapuram, Chennai in the name of the first defendant's wife herein. He has also provided Rs.1,00,000/- to each of the defendants 2 to 4 and kept a sum of Rs.10,00,000/- as fixed deposit in Canara Bank. There were series of litigations between the plaintiff and the defendants on one side and their father K.S.Narayanan on the other. The said Narayanan was not in good terms with the plaintiff and the first defendant. The said Narayanan and his wife were living separately. They were not cared by the plaintiff as well as the first defendant. The defendant's mother Shanta expired in the month of October, 2000. She also possessed jewels. At that time, the defendant's father was always affectionate towards the defendants 2 to4 and in such circumstances, it is highly unbelievable and highly improbable that their father bequeathing the property in favour of the plaintiff. Their father is not educated. He does not know to read or write in English language and he has the knowledge only to affix his signature in English. The signature of their father differs from page to page in the Will and the description of the property and the recitals of the Will itself is in error. The alleged attesting witnesses are close friends of the beneficiary under the Will and prayed for dismissal of the suit.
5. On the basis of the above pleadings, on 07.3.2008, this Court framed the following issues:-
(i) Whether the Will dated 06.12.2000 is valid and duly executed and attested?
(ii) To what relief the plaintiff is entitled to?
6. On the side of the plaintiff, P.W.1 and 2 were examined and Ex.P.1 and P.8 were marked. On the side of the defendants, the third defendant was examined as D.W.1 and Ex.D.1 to D3 were marked.
Exhibits produced on the side of the plaintiff:
S.No Exhibits Date Description of documents
1.
P-1 06/12/2000 Original Will executed by plaintiff's father K.S.Narayanan
2. P-2 27/07/1994 Copy of Registered General Power of Attorney executed in favour of the father of the plaintiff
3. P-3
--
Certified copy of the plaint in O.S.No.5673/1997 on the file of the City Civil Court, Madras.
4. P-4
--
Certified copy of the plaint in O.S.No.402/1998, on the file of the City Civil Court, Madras
5. P-5 01.02.1992 Deed of Partnership
6. P-6 17.02.1992 Agreement of Lease
7. P-7 18.09.1994 Agreement of Lease
8. P-8 01.09.1995 Xerox Copy of Will executed by the plaintiff's father Witnesses examined on the side of the plaintiffs:
P.W.1. - K.N.Ramanathan P.W.2. - G.Rajkumar Exhibits produced on the side of the first Defendant :
S.No Exhibits Date Description of documents
1. D-1 15.02.2012 Letter issued to the third defendant on behalf of the 2nd and 4th defendants
2. D-2 08.10.2010 Copy of the letter sent by the third defendant to the Public Information Officer, Chennai Corporation.
3. D-3 18.11.2010 Letter of the Public Information Officer, Chennai Corporation to the third defendant Witnesses examined on the side of the first defendant D.W.1 Balasaraswathy
7. Heard, Ms.G.Sumitra. learned counsel appearing for the plaintiff and Mr.Abdul Hameed, learned counsel for the defendant 2 to 4.
8. The learned counsel for the plaintiff submitted that P.W.2, one of the attesting witness has clearly spoken about the execution of the Will by the testator K.S.Narayanan while he was in sound state of mind. Even in the written statement, the execution has not been seriously disputed. The only defence has been taken to the effect that the signature of the said Narayanan differs from page to page, besides, fraud has been played. Whereas, there is no evidence to establish the fraud with regard to the execution of the Will Ex.P.1. Once, the execution and attestation is proved in the manner known to law, it is for the defendants to establish their plea of fraud, forgery, etc. There is no suspicious circumstances surrounded around the Will. The father of the plaintiff has given adequate reasons for excluding the daughters and another son. The other allegations of the defendants that the said Narayanan did not know English language and therefore, the Will could not have been executed is also falsified in view of the fact that the said Narayanan entered into several contracts and executed several documents in English. Hence, submitted that the plaintiff has proved the Will and prayed for Letters of Administration. In support of her arguments, he has also placed reliance upon the unreported judgments of this court in O.S.A.No.379 of 2001 dated 19.02.2008 (P.Mani @ P.Bahasubramaniam Vs. P.Viswanathan (deceased) and nine others) and O.S.A.No.2 of 2001 dated 16.08.2007 (Geetha and two others Vs. V.Vasudevan and five others).
9. Whereas, the learned counsel for the defendants submitted that the circumstances attached to the Will itself is suspicious in this case. Admittedly, the said Narayanan was residing separately. Therefore, he reposing his confidence on the attesting witnesses who are close friends of the beneficiary is highly improbable. The previous Will said to have been executed by the said Naayanan, was attested by the first defendant and a close relative of the said Narayanan. Whereas, reposing confidence on P.W.2 and one Ragunathan as the attesting witnesses, who are friends of the plaintiff, is highly improbable. It is the further contention of the learned counsel that the manner in which the Will was prepared create serious suspicion. In the first page, the Will was typed in double line space, where as in the second page, it was typed in single line space. Further, the signature of the testator in each page differs. Whenever, there is a correction, there is an initial of the testator. But, in the last page, the correction has not been attested. Further, the Door No.48 came to be changed by the Corporation in the year 2001. Therefore, including the above door number in the Will allegedly written in the year 2000 is highly suspicious in nature. P.W.2 has never spoken about the signature of the advocate in the Will. The evidence of P.W.1 and P.W.2 are inconsistent with each other and create suspicious circumstances with regard to the execution of the Will. Hence, submitted that the Will has not been proved in the manner known to law. Hence, prayed for dismissal.
10. In the light of the above submissions, now the issues have to be answered one by one.
11. Issue Nos.1 and 2 :
Ex.P.1 is Will said to have been executed by the testator K.S.Narayanan bequeathing the suit property in the name of the plaintiff. Of course, it is an unregistered Will said to have been attested by P.W.2 and one Ragunathan. The Will also show as if it was prepared by one Shanmugam and one notary Ramaswami also was to have signed the Will. The Will itself recite as if a sum of Rs.1,00,000/- was given each to the defendants 2 to 4 and the first son was also given some properties. It is recited that old No.11/3 and new No.48, Nynan Street, Gurupuam, Chennai is bequeathed to the plaintiff under the Will. Ex.P.2 to 6, are the copy of Power of Attorney, Partnership Deed, and lease agreements filed by the plaintiff to show that his father Narayanan is a party to those documents and is well versed in English language.
12. In the above background, now it has to be analysed whether the Ex.P.1 Will was proved in the manner known to law. P.W.1, the beneficiary of the Will in his evidence has stated that he only called the attesting witnesses at the instance of his father on 06.12.2000. On 06.12.2000, the Will was executed by his father while he was in sound and disposing state of mind and attested by P.W.2 Rajkumar and one Ragunathan. In chief examination, it is the evidence of P.W.1 that the attesting witnesses were called by P.W.1's father, since both the attesting witnesses are known to him. The evidence of P.W.1 clearly prove the fact that P.W.1, who is the beneficiary of the Will has also actively participated in the alleged execution of the Will. Further, he has also admitted that both the attesting witnesses are his close friends and they are also very close to P.W.1's family.
13. P.W.2, in his evidence has stated that the Will was executed by the plaintiff's father K.S.Narayanan, while he was in sound state of mind and P.W.2 and other attesting witness seen the testator signing the Will and the other witness also signed the Will. Though his evidence, prove the execution of the Will as per law, his entire evidence, when carefully read, this Court entertain serious doubt about the execution of the Will by the said K.S.Narayanan. Admittedly, father of P.W.1, namely the testator was residing at Kalikundram separately. P.W.2, who claims to be a close friend of P.W.1's family, in his cross examination admitted that in view of the quarrel by the daughter-in-laws, the plaintiff's father was residing separately. Only because of the quarrel of the daughter-in-laws, the testator left the house Nynon Street and moved to Tharamani. This fact clearly show that the relationship between the plaintiff and his father was not in cordial terms. It is the contention of the plaintiff that only at the instance of the testator, since they are known to their family and they are close to the family, the attesting witnesses were called by his father. In this regard, P.W.2 evidence when carefully perused shows that he does not even remember the names of P.W.1's sisters and their husband's and children name and P.W.1's brother's name and his children's name. Similarly, he also does not know the name of the plaintiff's son. Similarly, he claimed to be a close friend of another attesting witness Ragunathan and though they met frequently, he does not know how many children the said Ragunathan is having. His evidence clearly indicate that he does not even know his family. If P.W.2 was very close to the family of P.W.1, he would remember the name of P.W.1's wife and children name and defendants name and their children name. These facts create doubt with regard to the evidence of P.W.1, that his father has called the attesting witnesses, since they are close to their family. This doubt is further confirmed by the fact that P.W.1 in his cross examination has stated that his father is residing at Tharamani independently.
14. The another Will said to have been executed by the father of the plaintiff in the year 1995 is also exhibited as Ex.P.8. The same clearly show that the first defendant and one Kumar, brother-in-law of the plaintiff has attested the said Will. When the testator is very conscious and reposing confidence on close relatives and there was no need to call independent witnesses, who were not even able to give details of the family members. Though it is claimed by the plaintiff that the Will dated 01.09.1995 was misplaced by his father and only a copy is available, the persons who are closely connected with the testator has attested the above Will. That being the case, normal prudence would demand the testator to repose confidence on the same witnesses in his last stage Will. Whereas, P.W.2 and another friend of P.W.1, who are close friends of P.W.1 have attested the Ex.A.1 Will .
15. Further, It is the evidence of P.W.1 that on the date of execution of the Will, he went to P.W.2's house at about 9.00 a.m. and he wanted him to meet in the evening. But he did not discuss with him about the Will. He did not make a call to P.W.2 before going to his house. Thereafter, he called another witness Ragunathan over his mobile from his residence land line. Thereafter on the same day at 5.30 p.m., he went to his father's house by bike and from there he went to Rajkumar's house and picked him up from there on his bike and Ragunathan also came to Rajkumar's house on his bike and from there all of them went to P.W.1's father's house and reached there between 5.45 and 6.00 p.m. After that the Will was signed by the testator and singed by the witnesses. It is the specific evidence of P.W.1 that on the date of the Will, he picked Rajkumar from his house and another witness Ragunathan also came to Rajkumar's house on his own bike.
16. Whereas, P.W.2 Rajkumar in his evidence has stated that on the date of the Will, P.W.1 has called him over phone and informed him that his father is bequeathing his property in favour of P.W.1 and called him to be present in the evening to sign as a witness. In the evening, the plaintiff picked him around 6.00 p.m. and they reached P.W.1's father's house around 6.15. At that time, another attesting witness Ragunathan was very much present outside the house of P.W.1's father.
17. The evidence of P.W.1 with regard to the going to the P.W.2's house is highly doubtful. It is the specific evidence of P.W.1 that on the date of Will, he did not make any call to Rajkumar in the morning, whereas, he had called one Ragunathan to come to his father's house. Whereas, the said Rajkumar in his evidence has stated that on the date of the execution of the Will, the plaintiff called him over phone and in the evening he came to his house and picked him from his house and thereafter, both of them went to the testator's house. At that time, another attesting witness Ragunathan was very much present outside plaintiff's father's house. This inconsistent evidence of P.W.1 and P.W.2 going to the house of the testator's house, create a serious doubt about the execution of the Will. Admittedly, P.W.2 and another attesting witness are close friends of P.W.1 and they were also classmates.
18. Further, the evidence of P.W.1 shows that his father made a correction in the first page and signed the Will. Whereas, P.W.2 in his evidence has stated that the testator has made correction in each of the pages and affixed his signatures and thereafter, the testator has affixed his signature in the Will. Whereas, in the Will, some door number has been added as 27 in pen and said to have been attested by the testator. It is to be noted that the signature of the testator itself is very shaky. Therefore, the evidence of P.W.1 that his father made a correction, i.e., writing number 27, very neatly is highly improbable. The No.27 is written in pen very neatly. When a person like a testator, who is aged about 87 and whose signature is shaky at the relevant time and he making correction in such a perfection is highly improbable and create a serious doubt about the execution of the Will itself. However, in the second page, also the date has been corrected. There is also an initial as if made by the testator. The signature found in the bottom of that page and the signature found near the correction in the same page also differs from each other and create a serious doubt about the execution of the Will by the testator. Though P.W.2 in his evidence has stated that in all the pages corrections were attested by the testator, in page No.3 of the Will, the Door No.11/3 has been added by ink and no signature of the testator found place. These facts also create a doubt about the execution of the Will by the Testator.
19. Similarly, P.W.1 in his evidence has stated that P.W.2 has signed as an attesting witness after Rajkumar in the place meant for the witness. Whereas, P.W.2 in the chief examination has stated that he has signed the Will first and thereafter, Ragunathan has signed the Will. Similarly, P.W.1 in his cross examination admitted that when all the three of them went to P.W.1's father's house, his father was on his bed in a room. P.W.2 in his evidence has stated that when they went inside, the plaintiff's father was sitting inside the house. These facts also create serious doubt about the execution of the Will on the said date, particularly, when there is grievance between P.W.1 himself and the testator. Therefore, the testator bequeathing the entire suit property to P.W.1, excluding his other legal heirs is also highly doubtful. P.W.1, in his evidence has further stated that he does not know when K.R.Shanmugam affixed his signature in Ex.P.1. Whereas, P.W.2 in his cross examination has stated that after his signature only the notary public signed in the Will. These facts also create doubt about the presence of the advocate and his signature in the Will. These facts clearly indicate that the Will could not have been executed as stated by P.W.1.
20. Further, P.W.1 in his evidence has admitted that the Door No.11/3 was changed to 27/24 in the year 1991 and 2001 respectively. If that being the case, the door No.48 changed in the year 2001, mentioning the same door number in the Will which was said to have been executed in the year 2000 also create a serious doubt about the execution of the Will. The information provided by the Corporation shows that the Door No.11/3 changed as 27 and from 27 changed to 48 in the year 1991 and 2001 respectively. Though, there is no exact date mentioned when the door number 48 changed, a reading of the information clearly gives an inference that the original door number was changed from 11/3 to 27 in the year 1991. Thereafter, from 27 to 48 in the year 2001. That being the position, including the above door number in the Will in the year 2000 itself gives arise to an inference that the Will has been prepared subsequently and not executed as stated by the plaintiff.
21. Ex.P.4 is the certified copy of a Will executed by the testator in the year 1998. The signature of the testator found in the above Will shows that the signature of the testator at the relevant time itself was very shaky. There was a curve in the first initial. But whereas in the present Will, the initial 'K' has been put without any curve and the signature is not shaky. The alleged signature in the present Will is after two years of Ex.P.4. When the testator's signature was shaky even in the year 1998 and putting his initial without any curve and shaky, creates serious doubt in the execution of the present Will.
22. Further, the evidence of P.W.1 clearly indicate that the testator is having legal knowledge and he has also executed documents in favour of the first defendant, his wife and he has also sold a property and entered into a partnership and lease deeds. If that being the case, the testator writing the Will when he was alone and that too when there is misunderstanding with the plaintiff's wife, is highly improbable. Further, the beneficiary, P.W.1 has also taken active part in the execution of the Will from the very beginning. These facts also create doubt and give rise to the inference that the Will could have subsequently brought into existence with the help of his close friends. In the above circumstances, this Court is not satisfied the genuineness of the Will in view of the various suspicious circumstances surrounded with the same. Accordingly, the issues are answered against the plaintiff.
23. In the result, the suit is dismissed. Considering the relationship between the parties, there is no order as to costs.
08.02.2017 Index:Yes/no Internet: Yes vrc N.SATHISH KUMAR.J. vrc Judgment in T.O.S.No.21 of 2004 08.02.2017