Madras High Court
T. Kanniah Rao vs Inder Rao on 7 May, 1996
Equivalent citations: 1996(2)CTC466
ORDER A. Raman, J.
1. The case of plaintiff is as follows: Krishna Bai, widow of late Bharamji Rao died on 7.8.1982 at Madras, possessed of the properties. While she was alive she executed a will on 19.1.1982 at Madras in the presence of the attestors who have attested the same. As per the provisions of the will the petitioner is the sole legatee and beneficiary being the husband's brother's son and after the death of Krishna Bai the plaintiff had fallen ill and was not in a position to apply to the Hon'ble Court. Hence the suit.
2. The defendant has filed the written statement pleading thus:
It is true that Krishna Bai died at Madras on 7.8.1982. Krishna Bai could not have executed the will as she was bed-ridden, ill and unconscious. She was not in a sound on state of mind prior to the date of the alleged will. Thumb impression had been obtained without the knowledge and consent of Krishna Bai, apparently when she was in unconscious state of mind. By playing fraud upon the deceased the plaintiff has brought about the will. The attestors to the will are close associates of the plaintiff. The will is not genuine nor it is valid. The deceased was getting good rental income from the properties and she was not supported by the plaintiff. The plaintiff is not entitled to the grant of probate. Further Krishna Bai did not have any capacity to execute a will in view of the provisions of the Family arrangement dated 30.4.1953. The defendant prays that the suit may be dismissed with costs.
3. The following issues were framed for trial:
(1) Whether the will dated 7.8.1982 was not executed by Krishna Bai?
(2) Whether Krishna Bai was not in a position to execute the will voluntarily?
(3) Whether the plaintiff is not entitled to get the letters of administration?
(4) To what relief the plaintiff is entitled to?
4. Issues 1 to 4 - Originally the application was filed in O.P.No.383 of 1986 for grant of probate. On the defendant lodging caveat and when the proceedings became contentious the petition was converted into testamentary original suit and thus happened to be numbered as T.O.S.No.3 of 1987.
5. The. plaintiff herein claims probate on the strength of the will dated 19.1.1982 alleged to have been executed by Krishna Bai bequeathing the properties in favour of the plaintiff. The contentions of the defendant is that Krishna Bai was laid up unconscious and was not in a sound state of mind and the will has been apparently fabricated by fraudulently obtaining her thumb impression while she was in such unconscious state and therefore the plaintiff is not entitled to probate. It is first of all necessary for the plaintiff to prove the valid execution and attestation of the will. Now let us therefore proceed to analyse the case of the plaintiff to see if the valid execution and attestation of the will has been proved as per the provisions of the Evidence Act and the Indian Succession Act as well. The will of course is a registered one. Merely because the will is a registered document no solemnity can be attached to the same. In fact the registration of the will cannot be regarded that as being equivalent to proof of capacity for making a will as held in the decision reported in the case of Sadachi Ammal v. Rajathi Ammal, AIR 1940 Mad. 135 . The importance of the registration of a will during the lifetime of the testator cannot be underestimated. But in assessing the significance of that fact, there is a well marked distinction between cases in which the subsequent dispute relates to the fact of execution and cases in which the question relates to the 'testamentary capacity' of the executant. It cannot therefore be said that the registration endorsements 'completely' prove that the document was read over to the executant and understood by him. Thus the registration is not a proof of testamentary capacity. Therefore the mere fact that the document viz., the will purports to be a registered instrument it does not in any way belittle or reduce the rigour of proof.
6. In this case two witnesses have been examined on the side of the plaintiff to prove the valid execution and attestation of the will. It is in this context to be pointed out that while according to the defendant the testatrix was aged 90 at the time of the alleged execution of the will, according to the plaintiff she was only aged about 60 years. But no evidence has been adduced by the plaintiff to prove the age of the testatrix on the date of alleged execution of the will. It is also in this context worthwhile to note that it is admitted that Krishna Bai suffered a fracture of the hip and was bed-ridden for some time. According to the plaintiff Krishna Bai suffered a fracture but subsequently she got cured and she was later in a position to move about and was not confined to bed. P.W.I is one of the attestor to the will. In the course of cross' examination he has admitted that Krishna Bai suffered fracture in the hip bone in the year 1980 and was bed-ridden. He further admits that for about 5 or 6 months she took treatment and was thus bed-ridden and thereafter she was cured and was able to walk properly. P.W.2 is the other attestor to the will. In the course of cross examination he admits that Krishna Bai met with an accident after December 1981 and she suffered an injury in the hip. She went to Puthoor for treatment as the bone was dislocated. He also states that after about 7 and 8 months after the accident Krishna Bai died. Therefore we have evidence to show that Krishna Bai was laid up and was bed-ridden at about the time the alleged will is said to have been executed. As that she was under medical treatment is also admitted by these two witnesses. No doubt these witnesses denied the suggestion that Krishna Bai was unconscious and was not in a sound and disposing state of mind and body at that time. But anyhow the fact remains that a suspicion has been created about the capacity both physical and mental of the testatrix to execute the will. The plaintiff has shunned the witness stand. The plaintiff has failed to examine the relations to speak to the fact that Krishna Bai though suffered a fracture was cured of the same and was able to move about and to further prove that she was physically and mentally in a fit condition to execute the will. There is absolutely no explanation forthcoming from the plaintiffs side as to why he could not examine relations with regard to the health condition of Krishna Bai. The will is said to have been executed on 19.1.1982. P.W.2 admits that towards the end of 1981 Krishna Bai suffered fracture and was bed-ridden for about 6 months. Only after 6 months she was cured. As I stated already regarding age of the testatrix on the date of the alleged execution of the will no definite proof is adduced. In other words it is not established that she was not so far advanced in age at that time. This aspect assumes importance especially when we have the admitted fact that she met with an accident and suffered hip injury. If she was advanced in age as contended by the defendant then the suffering of a hip injury at about the time will be definitely a matter of significance. For, it will have enormous bearing on the mental and physical condition of the individual which in turn will govern the issue of valid execution and attestation of the will. Rulings are to the effect that suspicious circumstances should be properly explained by the propounder. Therefore it is essential that the propounder must adduce unimpeachable evidence to establish the genuineness and authenticity of the will when there are suspicious circumstances placed before the court, The onus is on the propounder to explain away the suspicious circumstances and lift the veil of suspicion that enshrouds the will. Here in this case a suspicion has been created which hangs over like a pall of gloom over the factum of execution of the will. No attempt has been made by the propounder to dispel and cast away the ominous clouds of suspicion. There is yet another fact which adds a touch of invincibility to the clouds of suspicion that enshroud the will. The reason given in the will is that the beneficiary under the will has been maintaining the testatrix from the date of death of the husband of the testatrix. It is in this connection admitted that the properties that the testatrix got are situate in Peters Road Mirsahibpet and Venkatachala Mudali Street, Mylapore. It is also admitted that these properties were occupied by number of tenants and they were paying rent. Therefore when there were rental collections the recital in the will that she was being maintained and looked after by the beneficiary is odd. It is also to be pointed out that the plaintiff has not taken the witness stand to say that he was maintaining her or to prove that he was performing the annual rituals of the husband of the testatrix. Even the witnesses who have been examined as P.W.-l and 2 do not say in the course of chief examination that she was being maintain and looked after by the plaintiff and that the plaintiff was performing the annual 'thithi' of the testatrix's husband. Therefore these circumstances thus belie the recital in the will. Therefore to begin with the plaintiff has failed to place before court's materials that would pursuade the court to hold that there are no suspicious circumstances attached to the execution of the will. In other words the clouds of suspicion that hang over the execution of the will are very much still there. Perhaps they are more dark and dense. In such circumstances it has to be held that the propounder has failed to discharge the onus east upon him.
7. Now coming to the execution part of it the plaintiff has examined two witnesses. P.W.1 does not say as to how Krishna Bai came to the Registrar's Office. Krishna Bai is said to have resided at No. 4, Peter's Road, Royapettah. P.W-1 's evidence shows that the Sub-Registrar's office where the registration took place was in Foreshore Estate. He would say that Krishna Bai came to the Sub-Registrar's Office in a taxi. But who brought her whether she came up of her own, they are not explained by P.W.I. It is material because the evidence of P.W.1 and 2 would disclose that just a month or two prior to the execution of the will she had an accident resulting in fracture of the hip bone and was bed-ridden and that only after 4 or 5 months of treatment she became allright. Therefore when it is so, it is the bounden duty of the plaintiff to explain as to how the testatrix could come to the Sub-Registrar's Office for execution of the document. That has not been satisfactorily explained by the plaintiff. This is yet another circumstance that accentuates the lack of evidence on execution and makes the execution of the will a subject of mystery. According to P.W.2 himself and P.W.1 accompanied Krishna Bai in a Taxi to the Sub-Registrar's Office, whereas P.W.1 does not say so.
8. In his evidence in the course of chief examination P.W.I docs not say anywhere that Krishna Bai signed the will in his presence and that he attested the will in the presence of Krishna Bai. What all he has stated in the course of chief examination is that the will contains the thumb impression of Krishna Bai and that he signed the document as an attesting witness and that he has identified the thumb impression of Krishna Bai before the Sub- Registrar. He also says that he saw Krishna Bai putting her left thumb impression in all pages of the will and Krishna Bai came to the Sub Registrar's Office. He further states that having understood the contents of the will read over by the Registrar Krishna Bai made her thumb impression in the will. Thus he does not satisfy to the requirements. The proof adduced falls too short of standard of proof. He has not stated clearly in his evidence whether he signed it as an attestor at the residence or at the sub-Registrar's Office. In the course of cross examination he states that himself and witness Murugesan saw Krislina Bai putting her thumb impression in the Sub-Registrar's Office. In the course of cross examination he admits that in the affidavit filed by him in respect of the application he has stated that Krishna Bai affixed her thumb impression in the house along with other witnesses. He would say that both the statement and the evidence are true. In this connection it is Pertinent to note that this witness is interested. Under the will one of the properties bequeathed is item No. 2 bearing Door No. 28, Chanda Sahib Street, Madras-14. This property has been gifted to this witness by the plaintiff in the year 1950. Therefore it is clear that this witness is beholden to the plaintiff. This witness has specifically stated that the will was read out by the Sub- Registrar and its contents was accepted and acknowledged by the testatrix and she affixed her thumb impression. It has been held in the decision reported in Ammu D/o of; P. Konnu v. Krishnan S/o T. Kushunni, that "in a case where a document becomes complete and valid only on registration, the sub-registrar and the identifying witnesses at registration may not become attesting witnesses But in a case where the document is a will which does not require registration, the Sub-Registrar and the identifying witnesses, if they conform to the law regarding attestation, may become attesting witnesses". Therefore the Sub-Registrar has to be treated as an attesting witness. But he has not been examined. It is also worthwhile once again referred to the decision reported in Sadachi Ammal v. Rajathi Ammal, AIR 1940 Mad. 315 in this context. Thus we find that the evidence of P.W.I cannot be termed as proving the valid execution and attestation of the will. The other witness examined is P.W.2 Murugesan. In his evidence in the course of Chief Examination he states that he himself and Krishna Bai went by Taxi to the Sub-Registrar's Office and that P.W.I was there and that he identified Krishna Bai before the Sub-Registrar and Krishna Bai affixed her thumb impression in the Registrar's Office. Thus the evidence of P.W.2 also does not conform to the requirement of law. He has not stated that he saw Krishna Bai executing the will in his presence. Nor he has stated that Krishna Bai saw him attesting. At best he only speaks to the identification of Krishna Bai before the Sub-Registrar. In the course of cross examination he makes it further clear. He admits that he does not know who prepared the will and that Krishna Bai handed over the will to him and asked him to attest the same. According to him the thumb impression was affixed by her in her house whereas P.W.I says differently. He says clearly that Krishna Bai affixed her thumb impression in the house in the will and thereafter affixed her thumb impression before the Sub- Registrar. He also says that all the thumb impressions at pages 1 to 4 were affixed by the testatrix in her house and that she did not affix any thumb impression in the Sub-Registrar's Office. He has further stated that contents of the will were read over to the testatrix only in the Sub-Registrar's Office. But the evidence of P.W, 1 is different. Neither P.W. 1 nor P.W.2 states that the contents of the will were read over to her at the house and she acknowledged it to be correct and executed the same. On the other hand both say that the contents of the will was read out only by the Sub-Registrar at the Sub-Registrar's Office. But the Sub-Registrar has not been examined. The evidence of these two witnesses do not speak to a case of valid execution and attestation of the will. A look at the will also shows that the thumb impressions of Krishna Bai is obtained not only at the bottom of each page but also on the sides of the first, second, third and fourth pages. It is not known why so many thumb impressions should be obtained and in such a haphazard fashion. This is one of the circumstances that adds to the flow of suspicion. There is yet another suspicious circumstance attached to the will. There is a declaration by the attestor that Krishna Bai signed before them and the attestors signed before Krishna Bai. It is not known why there is a separate column containing such a declaration. All these things only add to the river of suspicion which cascades down to submerge the genuineness of the will.
9. There is yet another important circumstance that once for all sets the seal of rejection. The will is said to have been executed in the year 1982. Though an explanation given in the plaint that because the plaintiff was ill he could not immediately take steps to put the will and initiate proceedings for probate the plaintiff has not chosen to take the witness stand to support this allegation. From the evidence on record it is clear that a suit was filed by Inder Rao as plaintiff in O.S. No. 8379 of 1985 for partition of the properties. Admittedly the suit included the properties which are the subject matter of the will. The plaintiff herein was the 7th defendant in the suit. Plaintiff Inder Rao has clearly alleged that the will is not true and that. It was obtained by coercion and under influence and that it was not executed by Krishna Bai out of free volition and mind and that she was not in a sound state of mind at the time of execution of the will. The 7th defendant viz., the plaintiff herein did not choose to file the original will there. Only a xerox copy of the will was produced and marked there. The suit was dismissed by the trial court. But on appeal in A.S.No. 536 of 1988 the appeal was allowed. A specific finding was given that the will has not been produced nor has been proved and probate obtained. The judgment by the trial court was on 28.10.1987. This application for grant of probate was filed into court on 4.2.1986 and it was returned and re-presented on 20.8.1986 and numbered on 4.9.1986. The plaintiff has not chosen to take steps on the will immediately and did not choose to file the original will in the suit but where there was necessity to do so. He has chosen to file this application only subsequently. There is no explanation for not having taken immediate steps on the basis of the will. All this would show that the will cannot be a genuine document. Apparently taking advantage of the fact that Krishna Bai was sick and in bed due to hip injury her thumb impression have been apparently obtained to prepare this will. The numerous circumstances pointed out would also show that the will is not a document executed by Krishna Bai of her free will and accord. Before wind up it is also necessary to refer to one another fact which is not controverted at all. The plaintiff has not chosen to disclose all the near relations or reversioners. A genealogical table is furnished by both sides. It is admitted that some of the near relations have been omitted to be mentioned or referred to by the plaintiff. The plaintiff has thus suppressed the fact that there are other persons interested. Saraswathi Bai, Kamala Bai, Narayana Rao, Rukmani Bai Inderlal four daughters of Raja Rao, Choti Bai, Kasthuri Bai, Jawar Rao, Bansi Rao and K. Shamlal Rao are near relations of Krishna Bai. They have not been disclosed in the petition. It is in this context to be stated the plaintiff has stated that apart from the persons mentioned in the petition there are no others entitled to the property. But whereas we find that there are other near relations who may also have a claim to the properties. But they have not been shown as parties. This is yet another ground against the grant of probate. This position is well settled by the decision in the case of G. Nagappan v. Kalaiselvam, 1995 (2) L.W. 65. Therefore on an analysis, I hold that the will dated 19.1.1982 was not executed by Krishna Bai in a sound and disposing state of mind or voluntarily and therefore the plaintiff is not entitled to get letters of administration.
10. In the result the suit is dismissed with costs.