Madras High Court
V.A.Suryanarayanan vs Vijayalakshmi (Deceased) on 24 August, 2022
Author: A.A.Nakkiran
Bench: A.A.Nakkiran
TOS.No.45 of 2002
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 03.08.2022
PRONOUNCED ON : 24.08.2022
CORAM:
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
TOS.No.45 of 2002
V.A.Suryanarayanan Plaintiff
Vs
1. Vijayalakshmi (Deceased)
2. M.Saraskumar
3. S.Muralikrishnan
4. S.Ramakrishnan
5. S.Gopikrishnan
6. S.Balakrishnan
7. Rekha Defendants
Prayer:- This Testamentary Original Suit has been filed, under Sections 232 and
276 of the Indian Succession Act and Order 25 Rule 5 of the Original Side
Rules, for the reliefs as stated therein.
For Plaintiff : Mr.P.Seshadri for Mr.M.Kempraj
For Defendants : Mr.V.Raghavachari and Mr.Avinash Wadhwani
JUDGEMENT
1. This Testamentary Original Suit has been filed to grant Letters of Administration of the Will annexed, in favour of the Plaintiff.
2. The case of the Plaintiff is that the Plaintiff is the brother of the 1st Defendant.
The 2nd Defendant is the husband of the 1st Defendant. The Defendants 3 to 1/15 https://www.mhc.tn.gov.in/judis TOS.No.45 of 2002 7 are the children of the Defendants 1 and 2. The mother of the Plaintiff, Ramanujammal, who ordinarily resided at No.63, Deveraja Street, Perambur Barracks, Chennai-12, died on 30.03.2000 at the said address, leaving behind her, the Plaintiff and the Defendants, as her legal heirs. The father of the Plaintiff predeceased her. His mother had executed her last Will and Testament, dated 14.06.1997, in the presence of the witnesses, in respect of the said property. The testator has not made any appointment of executor of the said Will. The amount of assets, which is likely come into the hands of the Plaintiff does not exceed in the aggregate sum of Rs.2,05,300/- and the net amount of the said assets, after deducing all the items, which the Plaintiff, is by law allowed to deduct, is only of the value of Rs.1,90,3000/-. The Plaintiff undertakes to duly administer the property and the credits of the said Testator, in any way concerning her Will, by paying first her debts and then, the legacies therein bequeathed so far as the assets will extend and to make a full and true inventory thereof and exhibit the same in the Court, within six months from the date of grant of Letters of Administration, with the Will annexed to the Plaintiff and also to render a true account of the said property and credits within one year from the said date. No application has been made to any District Court or delegate or to any other High Court for probate or any Will of the said deceased or Letters of Administration with or without the Will annexed to her property and credits. Hence, this Testamentary Original Suit 2/15 https://www.mhc.tn.gov.in/judis TOS.No.45 of 2002 suit has been filed, seeking the relief, as stated above.
3. The case of the Defendants is that the Will is not a genuine one and it had been fabricated. The 1st Defendant is the only sister of the Plaintiff. Her father Appa Rao died on 01.03.1950 and her mother Ramanujammal died on 30.03.2000. The premises, at Door No.23, New Door No.63, Devaraja Street, Perambur Barracks Road, Chennai-12, was purchased by her mother on 09.09.1935 from one Narayana Swami Mudali and since then, she had been in possession and enjoyment of the same till her death on 30.03.2000. She died intestate, leaving behind her the Plaintiff and the 1 st Defendant, as her legal heirs. The Plaintiff and the 1st Defendant are each entitled to half share in the property. There are 15 tenants in the said premises and both the Plaintiff and the 1st Defendant are residing in the same. The rental income is Rs.14,000/- p.m. The Plaintiff was not in talking terms with their mother. The Plaintiff is collecting the rents. There is no need to write the Will on the Stamp Papers. Though the stamp papers had been purchased on 7.5.1997, the Will had been prepared on 14.06.1997. The attesting witnesses have not written their names after the signatures. The name of the person, who wrote the Will is not disclosed. There are intrinsic evidence in the alleged Will to prove the same that it is not a genuine one. In such circumstances, the Testamentary Original Suit is liable to be dismissed.
4. On the pleadings of the parties, the following issues were framed:- 3/15
https://www.mhc.tn.gov.in/judis TOS.No.45 of 2002 (1) Whether the Testatrix late Mrs.Ramanujammal had duly executed her last Will and Testament, dated 14.06.1997, in respect of the immovable property bearing Door No.63, Devaraj Street, Perambur Barracks, Chennai-12, in favour of V.A.Suryanarayanan, the Plaintiff herein in the presence of two witnesses, who attested the same?
(2)Whether the Will, dated 14.06.1997, executed by the Testatrix late Ramanujammal in favour of the Plaintiff is true and genuine?
(3)Whether the Testatrix Mrs.Ramanujammal was in a sound and disposing state of mind at the time of execution of the Will, dated 14.06.1997?
5. On the side of the Plaintiff, Ex.P1 was marked and PW.1 and PW.3 were examined. On the side of the Defendants, Ex.D1 and Ex.D2 were marked and DW.1 and DW.2 were examined.
6. This Court heard the submissions of the learned counsel on either side.
7. The learned counsel for the Plaintiff has submitted that Ramanujammal is his mother and the 1st Defendant is his sister. Ramanujammal had executed a Will on 14.6.1997 in his favour. The Will was attested by two witnesses and they were examined as PW.2 and PW.3. In that Will, she clearly mentioned as to why she has not given any share to her daughter. She is an illiterate and she can affix her thumb impression only. The Defendants have not proved that she is incapable of signing the documents. The stamp paper can be purchased in the name of any person. There is no prescribed form in which a Will should be written. It is not the case of the Defendants that he influenced her and written the Will in his name. The Plaintiff has proved his case by examining PW.1 and PW.2. The Will is genuine and executed by 4/15 https://www.mhc.tn.gov.in/judis TOS.No.45 of 2002 Ramanujammal in favour of the Plaintiff. No suspicious circumstance is there. Therefore, the learned counsel prays for allowing this TOS.
8. The learned counsel for the Defendants would submit that the stamp papers were purchased on 7.5.1997 and thereafter, the Will was executed on 14.6.1997 and so it creates a suspicion. Certain allegations were made against the son in law and it is unwarranted and so, it created another suspicion. The Will was written in English. In that Will, it is mentioned that it was translated into Telugu and it creates another suspicion. Ramanujammal affixed her thumb impression in the Will. But, the Plaintiff has not marked any other document containing her thumb impression to prove that she can only affix thumb impression. Who has written the left thumb impression of Ramanujammal, is also not known and who has written the addresses of the attesting witnesses is also not known. The name of the scribe of the Will is not mentioned. Ramanujammal died in the year 2000. But, the Plaintiff knew about the Will in the year 2000. One of the attesting witnesses, Rekha was not examined and it also creates a suspicion. So many contradictions are there regarding the presence of the persons at the time of executing the Will. In that Will, it is mentioned that she was staying with her daughter due to difference of opinion with her daughter in law and if so, the Will would not have been executed in the name of the Plaintiff and it also creates a suspicion. The Plaintiff was not in talking terms with her mother. The Will is 5/15 https://www.mhc.tn.gov.in/judis TOS.No.45 of 2002 not genuine. It is the case of the Plaintiff that in the year 2000 only, Rekha informed about the Will and so, it creates a suspicion. There are many suspicious circumstances, which would clearly indicate that the same had not been executed by her mother. Hence, the learned counsel prays for dismissal of this TOS.
9. The learned counsel for the Defendants has relied on the following decisions:-
i. AIR 1962 SC 567 (Rani Pnrnima Debi Vs. Kumar Khagendra Deb) wherein it was held as under:-
“15. .... In these circumstances we can place no reliance on his evidence, for if he was capable of denying his connection with the respondent he can be capable of colluding with the respondent in manufacturing the will on signed blank papers which were admittedly available to him and others. Looking at the evidence of the three attesting witnesses and the respondent broadly, we must say that that evidence does not dispel the suspicion as to the due execution and attestation of this will.” ii. 1982 1 SCC 20 (Indu Bala Bose Vs. Manindra Chandra Bose) wherein it was held as under:-
“7. ... Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free.” iii. 1990 1 SCC 266 (Kalyan Singh Vs. Chhoti), wherein it was held as under:-6/15
https://www.mhc.tn.gov.in/judis TOS.No.45 of 2002 “20. It has been said almost too frequently to require repetition that a will is one of the most solemn documents known to law. The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.” iv. 1992 2 SCC 507 (Guro Vs. Atma Singh), wherein it was held as under:-
“5. Although the Testator was literate, the will bore his thumb impression.
6. The will was an unregistered document not scribed by a regular deed writer and as such could be prepared at any time.
7. Within eight days of the execution of the will the Testator died. The appellate Court also found that contradictory statements had been made by the Respondent with regard to his presence at the time of execution of the will, by the scribe as well as by K. The appellate court, therefore, reversed the decree of the trial court and dismissed the suit of the Respondent. But the High Court allowed the second appeal filed by the Respondent and restored the judgement and decree of the Trial Court on the view that the will had been validly executed. Allowing the appeal.
7. The High Court, in our opinion, was not justified in reversing the findings of fact recorded by the appellate court which were based on a proper appreciation of the evidence on record. In doing so, the High Court has failed to attach sufficient importance to the various 7/15 https://www.mhc.tn.gov.in/judis TOS.No.45 of 2002 suspicious features relating to execution of the will that were pointed out by the appellate court. The High Court has not even noticed the fact that the testator had died within eight days of the execution of the will and there is a recital in the will that the testator had been ill for a long time and was seriously ill at the time of execution of the will. In view of the said recital, it was necessary for the plaintiff-respondent 1 to adduce satisfactory evidence with regard to the nature of the illness of the testator and about his mental capacity to execute the will. The incorrect statements in the will with regard to testator having no sister and respondent 1 being his real brother have to be considered in this background. The circumstance that the testator had not put his signature and had put only his thumb impression on the will, has been brushed aside by the High Court on the view that there is no evidence on record with regard to the literacy of the testator. We find that the scribe, Manohar Lal, PW 1, has stated that Ganga Singh was literate person and had been writing receipts etc. even earlier. In the circumstances, it was necessary for the plaintiff-respondent to adduce satisfactory evidence to show why, instead of signatures, the thumb impression of the testator was obtained on the will. Another significant feature which has been brushed aside by the High Court is about the role of respondent 1 in the execution of the will under which he is the sole legatee. It has been stated by Manohar Lal, PW 1, that Tara Singh, the son of respondent 1 had come to call him. To the same effect is the testimony of Kehar Singh, PW 2 and Surjan Singh, PW 3, the attesting witnesses. The will was executed outside the residence of respondent 1 on a bahi brought by Tara Singh the son of respondent 1. Respondent 1 has made contradictory statements about his presence at the time of the will. The High Court has ignored these contradictions in the statement of respondent 1, by a simple observation that this lapse on the part of respondent 1 may be due to faulty memory or maybe he was trying to avoid the criticism that he has tried to exercise some influence to get the will executed in his favour. Only two of the five attesting witnesses have been examined.
Both of them, viz., Kehar Singh (PW 2) and Surjan Singh (PW 3) have made an effort to deny the illness of the testator at the time of the execution of the will and have also departed from their earlier statements recorded during the mutation proceedings. In these circumstances, it was necessary that the other attesting witnesses should also have been examined by plaintiff-respondent 1. Taking into consideration the aforesaid features, we are of the view that the High Court was not justified in reversing the findings of fact recorded by the appellate court that will is not proved to be a genuine 8/15 https://www.mhc.tn.gov.in/judis TOS.No.45 of 2002 document executed by Ganga Singh and in holding that the execution of the will had been satisfactorily proved by respondent 1.” v. 2003 SCC Online Bom 534 (P.Ramachandran Nair Vs. Suparna Tapan Das), wherein it was held as under:-
“31...... (v) The following suspicious circumstances surrounding the execution of the Will have not been properly explained to the satisfaction of the Court.
(a) Obtaining of the thumb impression of the left hand of the deceased on the will when he could have signed it by his right hand.
(b) Annexing to the petition unaffirmed affidavit of Advocate Midha to be that of attesting witness.
(c) Total exclusion of the defendant from any benefit under the will without any apparent reason when she is the only daughter of the deceased.
(d) Non-mention of all the properties of the deceased in the Will.” vi. 2004 2 SCC 321 (Uma Devi Nambiar Vs. the.C.Sidhan), wherein it was held as under:-
“16. A Will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. 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.” vii. 2011 SCC Online Mad 830 (N.Govindarajan Vs. N.Leelavathy), wherein it was held as under:-
“21. The law is well settled that the conscience of the Court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it 9/15 https://www.mhc.tn.gov.in/judis TOS.No.45 of 2002 should also be found that the said Will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will. Execution of Will is a solemn act of the executant who must own up the recitals in the instrument and there must be clear evidence that he puts his signature in a document after knowing fully its contents. The executant of a document must, after fully understanding the contents and the tenor of the document put his signature or affix his thumb impression. In other words, the execution of the document does not mean merely signing, but signing by way of assent to the terms of the contract of alienation embodied in the document.”
10.This Court considered the submissions of the learned counsel on either side and also perused the materials available on record.
Issue Nos.1, 2 and 3:-
11.The contention of the Defendants is that the Will was written in Rs.5 stamp paper and the Will need not be written on stamp paper and typed. This Court is of the view that there is no prescribed form for preparing the Will. It can be in any form. The only thing which we have to look into is as to whether it is genuine or not. Some Wills are written by hand and some Wills are typed. It is the discretion of the Testator. We cannot say that since it was typed, it cannot be accepted. So the first objection raised by the learned counsel for the Defendants is not acceptable.
12.The next contention is that there was a delay in preparing the Will. A perusal of Ex.P1 shows that stamp paper was purchased on 7.5.1997. The Will had been prepared on 14.06.1997. Even though there was a delay, it is not an enormous delay. The Will is not antedated. There is no prescribed time limit, within which, the Will should be executed after purchase of the stamp paper. 10/15 https://www.mhc.tn.gov.in/judis TOS.No.45 of 2002 We ought to make use of it within the prescribed period. So this objection is also not acceptable.
13.The next contention of the Defendants is that the stamp papers were purchased in the name of the Plaintiff, Suryanarayanan. Ex.P1 Will was executed in favour of Suryanarayanan. The stamp papers may be either in the name of the executant or in the name of the beneficiary. In this case, it is in the name of the beneficiary. So this objection is also not acceptable.
14.The next contention of the Defendants is that Ramanujammal affixed her thumb impression and it creates a suspicion. DW.1 in her cross has deposed that the testator was an illiterate and unable to read and write and she did not know to sign. So this objection is also not acceptable.
15.The next contention of the Defendants is that in the Will some allegations were raised against the son in law. It is irrelevant material and it creates a suspicion. For this, the learned counsel for the Plaintiff has submitted that this was the reason for not allotting the share to the daughter, 1 st Defendant. Therefore, it is mentioned in the Will.
16.The next contention of the Defendants is that the Plaintiff was not in talking terms with his mother and therefore, it creates a suspicion. To prove this contention, she has not examined any independent witness to establish it.
17.The next contention raised by the Defendants is that the attestors are strangers. DW.1 has deposed that the 2nd attesting witness Venkatrao was 11/15 https://www.mhc.tn.gov.in/judis TOS.No.45 of 2002 residing just opposite to her house and that the 1st attesting witness Venkata Krishnarao was residing 3 to 4 houses apart. So it is clear that they were residing in the same street. So the contention raised by the Defendants is not acceptable.
18.The next contention raised by the Defendants is that it is mentioned in the Will as “This has been translated into Telugu, read out to me in Telugu.” The Will was in English. So it creates a suspicion. In this case, PW.1 has deposed that “in the presence of all she asked me to read the contents and translate it in Telugu.” Therefore, it is clear that he only translated it into Telugu. So this contention raised by the Defendants is also not acceptable.
19.PW.3 has deposed that her mother executed a Will in his favour. To prove this contention, he examined two witnesses. PW.1 has deposed that Ramanujammal executed a Will dated 14.6.1997 and it was executed in her house. He and another witness Venkatarao, the Plaintiff and Ramanujammal were present at that time. The contents of the Will were read out and translated into Telugu and then, she affixed her thumb impression. The attesting witnesses, as requested by her, subscribed their signatures to the Will as first and second attesting witnesses. She was in a sound and disposing state of mind, memory and understanding at the time of execution of the Will. From the above evidence, it is clear that the thumb impression was affixed by Ramanujammal after fully knowing the contents of the Will. 12/15 https://www.mhc.tn.gov.in/judis TOS.No.45 of 2002
20.PW.2 has deposed that the testatrix called him and told that her son in law fought with her and therefore, she wanted to write a Will and requested him to sign as a witness. He had put his signature in the Will as an attesting witness and she was hale and healthy . From the above evidence, it is clear that he signed the Will as a witness at the time of execution. At the time of deposition, his age was 82 years. Therefore, his evidence is believable. Therefore, the statutory requirements for proving the will have been fulfilled.
21.To disprove the contentions, the Defendants have not examined any other witness and marked any document. At the same time, PW.1 and PW.2 deposed that they signed the Will as the attesting witnesses. The Will was also marked as Ex.P1. From the above evidence, it is clearly proved that the Will is true and genuine. Therefore, the Plaintiff is entitled for the grant of Letters of Administration as prayed for. Accordingly, the issue nos.1, 2 and 3 are answered in favour of the plaintiff.
22.In the result, this TOS is decreed as prayed. Issue Letters of Administration in favour of the Plaintiff. The Plaintiff is directed to duly administer the properties and credits of the deceased more fully described in the schedule. The Plaintiff is also directed to execute a security bond for a sum of Rs.25,000/- (Rupees twenty five thousand only) in favour of the Assistant Registrar (O.S.II), High Court, Madras. The Plaintiffs is further directed to render true and correct accounts once in a year.
13/15 https://www.mhc.tn.gov.in/judis TOS.No.45 of 2002 24.08.2022 Index:Yes/No Web:Yes/No Speaking/Non Speaking Srcm
1. List of Witnesses examined on the side of the Plaintiff:-
1. P.W.1 – P.Venkatakrishna Rao
2. PW.2 – V.A.Suryanarayan
2. List of Exhibits marked on the side of the Plaintiff:-
1. Ex.P1 is the Will, dated 14.06.1997.
3. List of Witnesses examined on the side of the Defendant:-
1. DW.1 – Vijayalakshmi
2. DW.2 - Muralikrishnan
4. List of Exhibits marked on the side of the Defendant:-
1. Ex.D1 is the copy of the GO.No.232, dated 29.10.1999.
2. Ex.D2 is the proceedings in Resolution No.38 of 2000, dated 22.01.2000.14/15
https://www.mhc.tn.gov.in/judis TOS.No.45 of 2002 A.A.NAKKIRAN, J.
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