Madras High Court
G.Lalitha vs G.Ponnurangam on 7 June, 2011
Author: S.Palanivelu
Bench: S.Palanivelu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.06.2011 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU T.O.S.Nos.2 of 1981 and 26 of 2008 TOS No.2 of 1981 G.Lalitha ... Plaintiff vs. 1.G.Ponnurangam 2.G.Chandran 3.G.Vasanthakumari (transposed as defendant No.3, as per order dated 28.3.2007 in Appln.No.120 of 2007) ... Defendants TOS No.26 of 2008 1.G.Ponnurangam 2.G.Chandran ... Plaintiffs vs. 1.G.Lalitha 2.G.Vasanthakumari ... Defendants Testamentary Original Suits filed under Sections 232 and 276 of the Indian Succession Act, 1925 read with under Order XXV Rule 5 of Original Side Rules, for grant of letters of administration. For Plaintiff : Mr.Ram Mohan, Sr.Counsel in TOS.No.2 of 1981 for M/s.G.Sumitra and Defendants in TOS.No.26 of 2008 For Defendants : Mr.S.Subbiah in TOS.No.2 of 1981 and Plaintiffs in TOS.No.26 of 2008 COMMON JUDGMENT
[For the sake of convenience, the ranks of the parties as mentioned in TOS No.2 of 1981 are referred in this judgment] The allegations contained in the plaint in TOS No.2 of 1981 are as follows-
1[A] Both the parties are the sons and daughters of Pattammal and Govindaswamy Naicker. They are residing in Door No.9 (New No.60), Swamipillai Stree4t, Choolai, Chennai 600 007. Pattammal died on 15.07.1977 at the above said address. The suit property belonged to her. She executed a registered will on 02.06.1977 bequeathing her property namely the suit property to the plaintiff and the 3rd defendant herein. The amount of assets which is likely to come to the petitioner's hands does not exceed in the aggregate a sum of Rs.44,780/-. The plaintiff undertakes to duly administer the properties of Pattammal.
1[B] The plaintiff being poor and illiterate was not aware of the procedure and was contented that the will executed in her favour under the premise that the will itself would give her valid right in the property. The defendants were allowed to be in possession partly in the bequeathed property, began giving the trouble and hence the plaintiff consulted and got legal advice that she has to file a Testamentary Original Suit. The original will was also misplaced and could be traced only during 2nd week of July 1980 and it was accidentally found to have got up mixed with other documents belonging to the plaintiff's father-in-law. Hence, the suit could not be filed within three years from the date of death of the deceased. Hence, letters of administration may be granted.
2. Written statement filed by the 1st and 2nd defendants contains the following allegations -
2[A] The defendants deny the validity of the suit will alleged to have been executed by Pattammal. She did not execute any will. She was not in a sound state of mind to execute any will on 02.06.1977 and she was not well and was also admitted to the hospital. Pattammal can sign, can put her signature but in the will, thumb impression is found. Even the same was obtained when she was in the stage of not understanding the same. It was forcibly taken by her son-in-law in a taxi under coercion. The suit is not maintainable for the reason of non-joinder of necessary parties. The sister was not made as a party.
2[B] Deceased Pattammal had executed a registered will in the year 1968 bequeathing the suit property in favour of the 1st and 2nd defendants herein in which she had affixed her signatures. The will in question is not valid and genuine but prepared by the plaintiff and her husband. The will was not attested properly. It was not executed by Pattammal under her own will and wish. The contents of the will were not explained to her in the presence of witnesses. Hence, the suit may be dismissed with costs.
3. The following are the averments found in the plaint in TOS No.26 of 2008 :-
3[A] Pattammal is the mother of both the parties. She was in possession of the immovable property, the suit property. She died on 15.07.1997 at her residence. While she was in sound and disposing state of mind, out of love and affection, executed a will in favour of the petitioners on 14.08.1968 bequeathing the schedule property in favour of the plaintiffs. It was duly executed on 14.08.1968 in the presence of witnesses, (1) Ramanujam Naicker s/o Erusappa Naicker at Kayirambedu Village, Kooduvancheri Post, Chengelput District, (2) Kanniappa Naidu, S/o Govindasamy Naidu at Kayirambedu Village, Kooduvancheri Post, Chengelput District and (3) P.Govindasamy Naicker who is the husband of deceased Pattammal. Out of the three witnesses, the father of the plaintiffs already died and the scribe of the will is also no more. The details of witnesses appear at the foot of the will. It is the only last will executed by Pattammal. It was duly registered at the office of the Sub Registrar of West Madras. The amount of assets which are likely to come into petitioners hands does not exceed in the aggregate Rs.44,780/- The testatrix did not appoint any executors. The 1st petitioner is residing at Kayirambedu, within the jurisdiction of the Munsif Court at Chengalpet. It was understood that there was no necessity to get the will issued with the letters of administration as per the Law.
3[B] The plaintiffs permitted the 1st defendant to reside in the property for some time out of love and affection. However, at a later point of time, the defendants and their husbands began to give trouble to the plaintiffs by claiming some right. The will alleged to have been executed by Pattammal on 02.06.1977 is not a genuine and legal document. It is not enforceable under law and it is not binding upon the plaintiffs. The plaintiffs were advised last week only that in their interest, they have to get necessarily the will dated 14.08.1968 administered. Immediately, they made arrangements and filed petition beyond three years from the date of death of Pattammal. So, they could not file the petition within three years from her date of death. Hence, the letters of administration of the will may be granted to the petitioners as the legatees under the will.
4. The following are the contents contained in the written statement filed by the 1st defendant -
4[A] The defendant denies the validity of the will alleged to have been executed by the deceased Pattammal. The plaintiffs are not entitled for probate/letters of administration. Pattammal had cancelled the will which is sought to be probated in the suit by her registered will dated 02.06.1977, registered in the Sub Registrar's office, Periamet, Chennai. She bequeathed her entire property in favour of the defendants. The 2nd defendant who is also a legatee under the will dated 02.06.1977 has executed a release deed dated 11.01.1993 in favour of this defendant and thereby she released all her rights in respect of the property. This defendant has filed O.P.No.552 of 1981 for grant of letters of administration for the will in her favour and the same has been converted into TOS No.2 of 1981. The plaintiffs are enjoying various properties of their father without giving any shares to these defendants and hence this defendant is given this property by her mother because of the attitude shown by the plaintiffs towards the deceased at the time of her old age. Hence, the suit may be dismissed with costs.
5. The following are the issues framed in TOS No.2 of 1981 -
(1) Whether the plaintiff is entitled to grant of letter of administration in respect of the will dated 02.06.1977 executed by deceased Pattammal as prayed for ?
(2) Whether Pattammal was in sound state of mind at the time of executing the will dated 02.06.1977 ?
(3) Whether the suit is bad for non-joinder of necessary parties?
(4) Whether the will dated 02.06.1977 is true and genuine one?
(5) To what relief, the plaintiff is entitled ?
6. The issues framed in TOS No.26 of 2008 are as under -
(1) Whether the will dated 14.08.1968 is the last will of the deceased Pattammal?
(2) Whether the plaintiffs have proved the will dated 14.08.1968 in solemn form?
(3) Whether Letters of Administration with the will dated 14.08.1968 shall be granted to the plaintiffs?
(4) What other reliefs the plaintiffs are entitled to?
7. Issue Nos.2 and 4 in TOS No.2 of 1981 Ex.P1 is the registered will dated 02.06.1977 executed by Pattammal, the mother of the parties, bequeathing the suit property in favour of her daughters, namely the plaintiff and the 3rd defendant. The 3rd defendant had executed a registered release deed dated Ex.P2 on 27.01.1993, relinquishing her rights in the suit property in favour of the plaintiff. Hence, it is contended that the plaintiff is alone entitled to the suit property.
8. In Ex.P1, Pattammal has stated that she is cancelling the will already executed by her in the year 1968 in favour of her sons, that her daughters have been providing all the necessities and conveniences to her, that she believed that her daughters would perform the last rituals and after her life time, both of her daughters would take the property and enjoy it. One of the witnesses by name Kothandam deposed before this Court on an earlier occasion on 23.12.1982 when the suit was decreed ex parte. He had stated before this Court that he had attested the will, that one Shanmugam also attested with him and the testatrix signed the will in their presence, that he was the attesting and identifying witness in the Sub Registrar's office, that she was in a sound and disposing state of mind at the time of execution of the will and that she told him that she has executed Ex.P1 after cancellation of the earlier will executed in favour of her sons, afterwards he died. The another attesting witness in Ex.P1 is one R.Shanmugam who died on 06.02.1999, as evident from the death certificate, Ex.P3. At the outset, PWs 1 and 2 were examined in this case and after some time, after ascertaining the address of PW3, son of the witness Shanmugam, he was examined before this Court. He would say that he could identify the signature of his father, that he used to sign in English, that in Ex.P1 will and signature of second attesting witness belongs to his father, that he has also signed as identifying witness in the Sub Registrar's office on the reverse of Page No.1 of Ex.P1, that his father had already filed an affidavit of attesting witness, Ex.P6 and the signature found in the said affidavit also belongs to his father. In the cross examination, he was asked so many questions with regard to his knowledge of his father signing the will.
9. A careful scrutiny of cross examination would show that he is not at all coming with false statement. There is no suggestion to the effect that he is not the son of the deceased attesting witness Shanmugam. In the cross examination of PW1, the plaintiff, she was queried as to the circumstances surrounding the execution and attestation of the will. The learned counsel for the defendants Mr.S.Subbiah would contend that the plaint pleadings and evidence would go to show that the propounder was taking active role in the execution of the will which has vitiated the will. It is his further contention that a careful scrutiny of the cross examination of PW1 would show that there are so many discrepancies in her evidence which would make the execution improbable. She would say that she went to registrar's office at 11.00 a.m. and returned at about 2.00 p.m. and if it is so, the registration would have been over between 11.00 a.m. and 2.00 p.m. but in the other portion of the evidence she says that the attestors came to her mother's house at 4.00 p.m.
10. The learned Senior Counsel Mr.Ram Mohan appearing for the plaintiff would contend that the will came into existence in the year 1977 and the witness was examined in November 2008, after a long time and hence it is natural that one could not remember the things which happened about 30 years back. The learned counsel for the defendants would also say that in Ex.P1, Pattammal has provided that her daughters have to perform her last rites and it is quite unnatural in the country because sons alone will perform them. However, in view of the admission contained in the written statement as to the execution of the will by Pattammal, it is to be concluded that it was duly executed by Pattammal and the same was attested properly, as evident from the deposition of PW1.
11. I am of the considered opinion that the attestation of Ex.P1 will has been duly established as per law by examination of PW3, by identifying his father's signature contained in Ex.P1, will. Neither of the defendants has been examined in this case. The 2nd plaintiff had reported before this Court that he is not willing to examine himself. However, the DW2 and DW3 were examined who are the son of the scribe and son of the attestor to Ex.P1, will in their favour executed by their mother. The validity of the will would be discussed in the following issues. As far as Ex.P1, will is concerned, its execution and attestation have been duly established. But as to the legal enforceability of the will, both the learned counsel would place their respective contentions on the strength of certain authorities.
12. Even though in the earlier portion of the written statement, the defendants have denied the execution and attestation of the will, in the later part, they have pleaded that the will was obtained when she was not in a state to understand the same and the same was forcibly taken by the son-in-law in a taxi under coercion. But this Court is unable to find any material evidence to infer that the deceased was under pressure or coercion to execute the will. There is no specific question as to this point put to PW1. When PW2, husband of PW1 was in the box, he was no question as to the alleged pressure exerted by him upon the testatrix. In this context, the contention that the will was obtained under coercion when she was not in a sound state of mind is far from acceptance.
13. The learned Senior Counsel for the plaintiff placed reliance upon a decision of this Court reported in AIR 1999 MAD 40 [S.Kaliyammal v. K.Palaniammal] wherein it is observed that when the execution of the will is not denied, it is unnecessary to compel the person who relies upon the document to let in evidence to establish the execution since the admitted facts need not be proved.
14. He also cited another decision of this Court reported in 1998 (11) MLJ 127 [Valliammal v. Palaniammal] wherein it has followed a decision of the Supreme Court. The relevant portion is as follows -
25. In Subbas Chandra v. Ganga Prasad, AIR 1967 S.C. 878, their Lordships of the Supreme Court have held thus :
"Before, however a court is called upon to examine whether undue influence was exercised or not, it must scrutinise the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See O.6, Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stress in the case of Ladli Prasad Jaiswal v. Karnal Distillery Company Ltd., AIR 1963 S.C. 1279 :(1964) 1 S.C.R. 270: (1964) 2 S.C.J..12, above referred to. In that case, it was observed:
"A vague or general plea can never serve this purpose, the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other."
15. As per Order6, Rule 4 CPC, anything as regards fraud and undue influence and mis-representation are pleaded, it must be furnished with proper particulars. But, in this case, excepting vague pleading, there is no particulars with regard to coercion.
16. In 2009 (7) MLJ 209 [K.M.Chochran V. K.P.Ramachandra Menon] , it is held that it is well settled that the person who pleads undue influence and coercion on the part of the propounder over the testatrix to execute the will has to prove the same. But in this case, there is no evidence with regard to the alleged coercion exerted on the testatrix. The learned counsel for the defendants would make much stress on a point on exclusion of other natural heirs by the testatrix in the will, when they are very much available and in the context of not giving any adequate reasons for their exclusion and strained relationship. He also says that once the disposition is unnatural and unfair, excluding other heirs of the testatrix without any reasons, it would vitiate the entire will. In support of his contention, he placed reliance upon a decision of the Supreme Court reported in 2010 (5) SCC 770 [Balathandayutham v . Ezhilarasan] in which Their Lordships have held that when there is unnatural, improbable or unfair disposition in the will, the Court has to verify that it is a suspicious circumstance surrounding the will. The relevant portion in the decision is extracted hereunder -
14. When a will is surrounded by suspicious circumstances, the person propounding the will has a very heavy burden to discharge. This has been authoritatively explained by this Court in H.Venkatachala Iyengar v. B.N.Thimmajamma. P.B.Gajendragadkar, J. (as His Lordship then was) in para 20 of the judgment, speaking for the three-Judge Bench in H.Venkatachala held that in a case where the testator's mind is feeble and he is debilitated and there is not sufficient evidence as to the mental capacity of the testator or where the deposition in the will is unnatural, improbable or unfair in the light of the circumstances or it appears that the bequest in the will is not the result of the testator's free will and mind, the court may consider that the will in question is encircled by suspicious circumstances.
17. In a Division Bench decision of this court reported in 2010 (6) MLJ 225 [Pongiammal v. Dr.s.M.Palaniappan], there is a discussion with regard to suspicion when a natural heir is excluded. The operative portion of the judgment is as follows -
39. .................. Therefore, the exclusion of the 2nd defendant in the will is one of suspicious circumstances. No doubt, mere exclusion by itself would not amount to wrongful but yet in this particular case, when especially when parties were at loggerheads and there are litigations long before when the propounder of the will has taken active participation in execution of the will, there is a definite suspicious circumstance when the daughter has been totally excluded from the will. Coupled with the fact, when the evidence of PW1 would only state that in the will she was excluded because the properties were given under the settlement deed. When it is proved that such property was not at all given to her, definitely, there raises a suspicion.
18. In another Division Bench decision of this Court reported in 2002 (1) CTC 650 [Kausalya, D. v. S.Sankaran], it is observed that there must be material to show the strained relationship between the testator and the person who is excluded from inheritance, in the absence of which the will has to be treated to have been surrounded by suspicious circumstances. The following is the relevant portion in the judgment.
13. .................. So till 1982, there was cordial relationship between the testator and the appellant herein as well as the other family members. Even in the evidence of PW1, he has not stated anything with regard to the strained relationship of the testator and the appellant. When in the will it is stated by the testator that due to the attitude of the appellant towards him he is not willing to give any share in the property to her, there must be something on record to establish the strained relationship which necessitated the testator to take a decision to deprive the appellant from her share. Equally in the cross examination of the appellant as DW1 nothing was elicited from her regarding the strained relationship. Hence there is no material before the Court to establish that the relationship between the testator and the appellant was strained to the extent of depriving the appellant from her share in the property.
19. In 2009 (3) CTC 801 [Premavathi v. Sundararajan] , a Division Bench of this Court has enlisted what may be the suspicious circumstances. They are as follows -
(a) Genuineness of signature of Testator
(b) Condition of Testator's mind
(c) Dispositions made in will being unnatural improbable or unfair
(d) Indications that Testator's mind was not free when the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove all the doubts by clear and satisfactory evidence.
20. As far as the active role played by the plaintiff in the execution and attestation of the will is concerned, it is apparent that the plaintiff was available at the time of execution and attestation of the will. The disposition in the will is also obvious. There is no sufficient reasons mentioned in the will for the exclusion of the sons of the testatrix. The testatrix has also not stated anything with regard to the strained relationship with her sons. She has merely stated that she has cancelled the earlier will executed in favour of her sons. The Court would naturally expect that all the legitimate suspicions should be completely removed before the document is accepted as the last will of the Testator. If the testatrix intends to exclude her sons, she should have stated proper reasons for the same. There is no evidence on the part of the plaintiff to show that there was love lost between the mother and her sons. The evidence would show that the sons were also residing in a portion of the suit property. When the will provides absolute interest in favour of the plaintiff, the propounder, it is her bounden duty to remove the legitimate suspicion as to the unnatural disposition of the propounder by excluding her other natural heirs in this case. In the considered view of this Court, the plaintiff has not dispelled the same and the unnatural disposition would vitiate the will and the same is not legally enforceable.
21. In view of the above said observations, I answer issue no.2 in the affirmative and issue no.4 to the extent that in view of unnatural disposition, the will is vitiated.
22. Issue No.3 in TOS No.2 of 1981 Even though in the written statement, a defence has been raised as to the non-joinder of necessary parties for non-impleadment of the 3rd defendant, subsequently, she has been impleaded. Hence, this issue need not be answered.
23. Issue No.1 and 5 in TOS No.2 of 1981 At issue nos.2 and 4, this Court has elaborately dealt with the circumstances under which the execution and attestation of the will happened and also the factors with regard to the validity of the will and reached a conclusion that even though the will is a true document, it is not valid and not enforceable. The plaintiff is not entitled to get any relief in the suit. The suit suffers dismissal. These issues are answered as indicated.
24. Issue Nos.1 and 2 in TOS No.26 of 2008 In TOS No.26 of 2008, Ex.D1 is the registered will executed by Pattammal in favour of her sons who are the defendants in TOS No.2 of 1981. She has stated therein that her sons have to bear the expenses for the marriage of their sisters namely the plaintiff and the 3rd defendant in TOS No.2 of 1981. As far as the execution and attestation of the will are concerned, the defendants have examined DW2 and 3, son of the scribe and the son of the attestor, will. None of the defendants was examined. Both the scribe and the attestor are not alive. DW2 would say that he is the son of S.Govinda Naicker who is the scribe of the will dated 14.08.1968 executed by Pattammal, that during his life time, his father had informed him that he signed as a witness in the Registrar's office in the will executed by Pattammal. He identified his father's signature and handwriting in the will.
25. Kanniappa Naicker was one among the witnesses in Ex.D1. Since he is no more, his son DW3 was brought to box. He has stated in his proof affidavit that he knows personally the signatures of his father and the signatures found in the will dated 14.08.1968 are those of his father's, that his father had sworned to an affidavit of attesting witness which contains his signature. There is no suggestion in the cross examination of DW2 and 3 that they are not the sons of the scribe and attestor respectively. There is nothing to get suspicion over their evidence. After a careful scrutiny of their cross examinations, this Court finds it safe to rely upon their evidence. No motive was also attributed to them to speak against the plaintiff. In view of the above, it is held that execution and attestation of the will, Ex.D1 have been duly established.
26. As regards the legal enforceability and validity of Ex.D1, what are all the discussions undertaken for Ex.P1, will have to be adopted. In the will, Ex.D1, even though the sons were directed to defray the marriage expenses of their sisters, still there is no reason contained in the will for exclusion of daughters from inheritance. Bearing the marriage expenses is different from excluding the daughters from inheritance. There is no evidence on record to show that as per the will and pleasure of the testatrix, the defendants celebrated the marriages of their sisters by incurring the marriage expenditure. The proper persons to speak about this are the defendants. But they did not enter into the box. DW2 and 3 have only identified the signatures of their fathers. In the absence of any material or evidence to show that as stipulated in Ex.D1, that the defendants incurred the marriage expenses of their sisters, the necessary corollary would be that they did not perform their marriages. Hence, unnatural disposition in Ex.D1, will excluding the daughters from inheritance would constitute a valid suspicious circumstance which the defendants have failed to remove. What are all the principles followed in respect of Ex.P1 have to be followed in the case of Ex.D1 also.
27. In view of the above, this Court is of the firm view that even though the execution and attestation of the will have been established, still the validity of the will, Ex.D1 is at stake. It is not legally enforceable. These issues are answered accordingly.
Issue Nos.3 and 4 in TOS No.26 of 2008
28. In the light of the observations and conclusions under issue No.1, it is concluded that the plaintiffs are not entitled for any relief. They have to be unsuited for the reliefs claimed. The suit is liable to be dismissed. These issues are answered accordingly.
29. In the result, both the Testamentary Original Suit Nos.2 of 1981 and 26 of 2008 are dismissed. No costs.
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