Madras High Court
R.M. Nachiappan vs S.Nachammai
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
RESERVED ON : 30.01.2017
DELIVERED ON : 20.02.2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CORAM
THE HON`BLE MR.JUSTICE N.SATHISH KUMAR
T.O.S.No.42 of 2005
in
(O.P.No.642 of 2005)
R.M. Nachiappan .. Plaintiff
Vs.
1. S.Nachammai
2. Mrs. K.Annapoorani (deceased)
3. Mrs.P.Valliammai
4. RM.S.Kannappan
5. R.Annamayil
6. K.Srinivasan
7. K.Chinthamani
8. K.Muthumeena .. Defendants
Original Petition No 642 of 2005 was filed under Sections 222 and 276 of Indian Succession Act, Order XXV r/w R-4 of the High Court (Original side Rules) of 1925 for the grant of letters of Administration. Against this petition a Caveat was filed on 07.10.2005 by the Caveator. As per order of this Court dated 29.03.2011 in O.P.No.642 of 2005, the Original Petition No.642 of 2005 was converted into Testamentary Original Suit No.42 of 2005.
For Plaintiff : Mr. T.V.Ramanujam
Senior Counsel for
Mr.T.V.Krishnamachari
For defendants : Mr.N.Sankaravadivel
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 plaintiff's case are as follows:
(i) The plaintiff is the son of late Sri.N.Ramanathan Chettiar, who died on 03.12.2002. The plaintiff and the defendants 1 to 3 herein are the son and daughters of the said deceased. The deceased Ramanathan Chettiar executed a Will dated 20.9.2002 bequeathing the suit properties in favour of the plaintiff and the defendants 1 to 3 and appointed the plaintiff as an executor. Since the 2nd defendant, viz., K.Annapoorani died, defendants 4 to 8 were brought on record as her legal heirs.
(ii) The amount of assets which is likely to come into the plaintiff's hands does not exceed the aggregate sum of Rs.82,59,221.61/- and the net amount of the said assets is Rs.82,58,221.61/-. The plaintiff undertakes to duly administer the property and credits of the deceased in any way concerned in the Will by paying first his 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 to the Court within six months from the date of grant of Letters of Administration, with the Will annexed and also to tender to this court a true account of the said property and credits within one year from the said date. The petitioner also submits that no application has been made to any other District Court or delegate or to any other High Court for probate or Letters of Administration with or without the Will annexed to the property and credits. Hence, the suit is filed for grant of Letters of Administration.
3. The brief facts of the defendants' case are as follows:
(i) The Will dated 20.9.2002 said to have been executed by N.Ramanathan Chettiar is denied. The defendants admitted that there were talks between the plaintiff and the defendants about the sharing of the assets through one S.Ramasamy, a close friend and business parter of the plaintiff and at that time, the plaintiff attempted to set up this false Will through his friend. Since the defendants objected, the plaintiff did not insist the Will at that time. The plaintiff did not agree for the proposal offered by the defendants towards amicable settlement.
(ii) According to the defendants, the alleged Will has been written in Ink, just 72 days prior to the date of the death of the deceased. The deceased Ramanathan Chettiar was a Chronic Patient with T.B., Renal failure, Hypertension for the last 12 years i.e. from 1992 to 2002 and he was admitted in Sundaram Medical Foundation, Anna Nagar, Chennai, for treatment of the Paralysis Stroke on several occasions. Since the deceased Ramanathan Chettiar was suffering from Neurological disorder with difficulty to move his finger, he could not put his signature as alleged by the plaintiff. Further, Doctors advised him to dip his fingers in the hot water for about 10 to 20 minutes and thereafter, he managed to put his signature. It is stated that due to the health condition of the deceased, he has allowed the plaintiff to put his signature in some business dealings of the father. Thus, the plaintiff was accustomed to put the signature of the deceased father. Further, the deceased used to obtain signed blank cheques from 1st and 2nd defendants for the purpose of drawing money from bank account either for reinvesting the same or for paying Corporation tax etc., with respect to the income derived from the flat owned by the said defendants but the same was misused by the plaintiff on several times.
(iii) According to the defendants, the Will dated 20.09.2002 is a forged and fabricated Will, since on the date of the alleged Will, the deceased father has already lost his mental and physical health and he lost disposing mentality due to prolong disease and health complaint. Apart from that, the Will is bad for uncertainty, as there is no disposition with respect to the share as dealt with in item Nos.4 and 5 of the Will. There is no mention about the person who prepared the Will and who made the arrangements for drafting the same. All the properties of the father were not covered in the Will. When it was pointed out to one Ramasamy, one of the attesting witnesses in the said Will, he showed another written material styled as Note of Understanding and Agreement giving details of almost all the other assets of the deceased and the same is also false and fabricated one. It is stated that in order to prevent the defendants from taking their due share under law, the plaintiff has prepared the forged Will. Hence, prayed for dismissal of the suit.
4. Denying the allegations made in the written statement by defendants, reply statement has been filed by the plaintiff under Order VIII Rule 9 CPC, wherein it is stated as follows:
The allegation that the deceased Ramanathan Chettiar never executed a Will is not correct. The Will has been voluntarily executed by the testator and attested by the attesting witnesses, who are all the family friends of the testator. The defendants have knowledge of the Will one month after the death of the deceased father and the said fact has been admitted by the defendants in the written statement. The allegation that the deceased had severe weakness and spasticity of hands and legs with inability to use them and execute any work are all not correct and the same are denied. The deceased had sound and disposing mind with sufficient health condition, leading daily life and he had the help of an attendant boy. The allegation that their father was suffering from neurological disorders are all invented by the defendants only for the purpose of this case with an intention to dispute the execution of the Will. The deceased father never allowed the plaintiff to put his signature as stated by the defendants in the written statement. The signed blank cheques were utilised only as per the instructions of the deceased father and the was not misused by the plaintiff and any point of time. The deceased father has never lost his mental and physical condition. It is stated that on the date of execution of the Will, the testator was healthy and in a sound and disposing state of mind and that he was competent to understand the nature of his property and the persons. The defendants were given sufficient provisions even during life time of the deceased. The properties contained in the note of understanding and agreement are outside the scope of the present proceedings. Thus, he prayed for letters of administration.
5. On the basis of the above pleadings, the following issues are framed: -
1.Whether the Will dated 29.02.2002 executed by the deceased Ramanthan Chettiar is not true and genuine?
2.To what relief, the plaintiff is entitled?
6. On the side of the plaintiffs, P.W.1 to P.W.3 were examined and Exs.P1 to P24 were marked. On the side of the defendants, D.W.1 was examined and Exs.D1 and D5 were marked. The details of the documents are hereunder:
Exhibits produced on the side of the plaintiffs:
S.No Exhibits Date Description of documents
1. P-1 20.09.2002 Original Will
2. P-2 04.04.2003 Death Certificate of N.Ramanathan Chettiar
3.
P-3
-
Empty Cover
4. P-4 series
-
Discharge summaries
5. P-5
-
Death certificate of N.Ramanathan Chettiar given by Sudnram Medial Foundation 6 P-6 01.04.2000 Deed of Partnership
7. P-7 01.10.2002 Delivery instruction for market traders 8 P-8 01.10.2002 Delivery instruction challan 9 P-9
-
Savings bank Passbook of N.Ramanathan Chettiar, Indian Bank 10 P-10 01.10.2002 Delivery instruction for market traders 11 P-11 01.10.2002 HDFC Bank delivery instruction by clients 12 P-12 18.11.2008 Indian Bank 11 Cheques 13 P-13 06.12.2004 Affidavit fo attesting witness S.Ramasamy 14 P-14 04.12.2004 ffidavit fo attesting witness Dr.Ct.Alagappan 15 P-15 01.04.1992 Deed of partnership 16 P-16 28.03.1994 Dissolution deed 17 P-17 1997-98 House tax receipt 18 P-18
-
Income tax returns for the assessment years 1997-98 and 1998-99 19 P-19 1997-98 House tax receipt 20 P-20 21.12.2010 Letter sent from plaintiff's counsel to the defendant's counsel 21 P-21 03.01.2011 Reply letter from the defendant's counsel to the plaintiff's counsel 22 P-22 07.05.1990 Certified copy of sale deed 23 P-23 07.06.1993 Letter sent from G.R. Office complex maintenance services to M/s.K.Annapurani 24 P-24
-
Income tax return for the assessment years 1994-95 and 1996-97 Exhibits produced on the side of the defendants:
S. No. Exhibits Date Description of documents 1 D-1 20.09.2002 Xerox copy of note of understanding and agreement 2 D-2 31.03.1991 Xerox copy of manufacturing and trading account 3 D-3
-
TDS certificate 4 D-4 1997-98 House tax receipt 5 D-5
-
Xerox copy of discharge summary Witnesses examined on the side of the plaintiff:
P.W.1 - R.M.Nachiappan P.W.2 - S .Ramasamy P.W.3 - CT. Alagappan Witnesses examined on the side of the defendants D.W.1 P.Valliammai
7. The learned Senior counsel appearing for the plaintiff would contend that the testator, who was a businessman, executed the unregistered Will dated 20.9.2002 in the presence of witnesses, who were reputed persons, bequeathing the properties not only to the plaintiff but also to the defendants. The testator has clearly mentioned about the apportionment of share in the Will. The learned senior counsel for the plaintiff further submitted that the Will was executed by the testator in a sound and disposing state of mind, in the presence of two attesting witnesses. It is submitted that the wife of the testator has not disputed the Will. The daughters of the testator, who are the defendants 1 to 3, alone disputed the Will on the ground that signature of the testator has been forged. It is also submitted by the learned senior counsel for the plaintiff that P.W.2 and P.W.3, who are the attesting witnesses, have very good reputation in the society and that, there is no need for them, to give a false evidence as to the Will. The evidence of P.W.2 and P.W.3, clearly established about the execution as well as attestation of the Will by the deceased Ramanthan Chettiar, in the manner known to law. It is the submission of the learned senior counsel for the plaintiff that the evidence of P.W.2 and P.W.3 also proves the testamentary capacity of the testator at the time of execution of the Will. It is the further submission of the learned senior counsel that once the execution of the Will is proved in the manner known to law, it is for the defendant to establish the alleged forgery of the signature of Ramanathan Chettiar. But, they have not proved the alleged forgery in this case.
8. It is the contention of the learned senior counsel for the plaintiff that since the testator Ramanathan Chettiar was suffering from various ailments, he was admitted in the hospital on various occasions but the same itself cannot be a ground to suspect the Will. Merely, taking some treatment for ailment in the hospital itself cannot be a ground to hold that the testator had no testamentary capacity at all. It is submitted that even after discharge from the hospital, the testator Ramanathan Chettiar was all along maintaining his bank accounts as well as his business. The testator has even signed the cheques much after the execution of the Will and the same would clearly establish the fact that the testator Ramanathan Chettiar was hale and healthy and was in sound and disposing state of mind till his death. Hence, it is submitted by the learned senior counsel for the plaintiff that the propounder of the Will has discharged the initial burden by establishing the factum of execution of the Will as well as attestation as required under law. In these circumstances, the learned counsel for the plaintiff prayed for grant of letters of administration. The learned senior counsel for the plaintiff has also relied on the judgments reported in CORRA VEDACHALAM CHETTY v. G.JANIRAMAN (2001 (3) CTC 283; S.SUNDARESA PAI AND OTHERS v. SUMANGALA T. PAI (MRS) AND ANOTEHR (2002) 1 SCC 630 and SAVITHRI AND OTHERS V. KARTHYAYANI AMMA AND OTEHRS (2007) 11 (SCC) 621 to substantiate the above contentions.
9. Countering the arguments advanced by the learned senior counsel for the plaintiff, the learned counsel appearing for the defendants submitted that the evidence of P.W.2 and P.W.3, attesting witnesses, are highly improbable and they are interested witnesses. Admittedly, the deceased Ramanathan Chettiar, was suffering from several ailments, for which he had undergone medical examination. Discharge summary filed by the plaintiff itself clearly indicate that the Ramanathan Chettiar was not in a position to sign or take any decision at the time of execution of the Will. Further, the testator was under the complete control of the plaintiff. It is submitted by the learned counsel for the defendants that frequent admission of the testator, Ramanthan Chettiar in the hospital, as seen under Ex.P4 series and Ex.P5, would prove the fact that he was suffering from Chronic Renal failure and the same itself is sufficient to prove the fact that the testator was not in sound and disposing state of mind at the time of execution of the Will. It is submitted by the learned counsel for the defendants that the plaintiff failed to examine Dr. Swamikannu of Sundaram Medical Foundation, who treated the testator, to establish the fact that the testator was in a sound and disposing state of mind.
10. It is also the submission of the learned counsel for the defendants that the evidence of P.W.2 and P.W.3, attesting witnesses, are inconsistent with each other. P.W.2 in the cross examination has admitted that he never met P.W.1 on the date of execution of Ex.P1, Will and Ex.D2, Note of Understanding. Whereas P.W.3 deposed that on the date of execution of the Will, Ex.P1, he signed as an attesting witness in the Will executed by mother of the plaintiff, namely, Chinthamani Aachi, and one another document, viz., 'Note of Understanding and agreement' (Ex.D1). The evidence of P.W.2 and P.W.3 suffers serious infirmity and the same itself is sufficient to infer that the Will has been brought into existence with the help of P.W.2 and P.W.3, who are said to be a close friends of the plaintiff.
11. It is submitted by the learned counsel for the defendants that the manner in which the signature of the Notary Public was obtained in Ex.P1 itself would show some suspicious nature in the execution of the Will. Further, the said Notary Public was not examined and a Certificate to that effect has also not been filed. Hence, it is submitted by the learned counsel for the defendants that the propounder of the Will has not discharged his obligation to dispel the aforementioned suspicious circumstances. Admittedly, the testator was admitted in the hospital for various complications. Besides, he had Paralytic Stroke. That being so, the execution of the Will by the testator Ramanathan Chettiar, as alleged by the plaintiff is highly doubtful. That apart, the wife of the testator has not given any provision in the Will, which creates serious doubt about the execution of the Will by the testator Ramanthan Chettiar. Nature of the distribution made in the Will as well as exclusion of other legal heirs also creates serious doubt. Hence, it is submitted by the learned counsel for the defendants that the Will has not been proved in the manner known to law and the same is shrouded in suspicion. Therefore, the learned counsel for the defendants prayed for dismissal of the suit.
12. In support of his argument, the learned counsel for the defendants relied on the judgments reported in JASWANT KAUR V. AMRIT KAUR (AIR 1977 SC 74 (1); JOSEPHINE JEROME AND OTHERS V. SANTIAGO AND ANOTHER (2007) 5 MLJ 706 and NIRANJAN UMESHCHANDRA JOSH V. MRIDULA JYOTI RAO AND OTEHRS) 2007 (2) CTC 172.
13. In the light of the above submissions, now issues has to be answered by analysing the entire evidence on record.
Issue Nos. 1 and 2:
14. There is no dispute that the plaintiff and the defendants 1 to 3 are the son and daughters of the deceased Ramanthan Chettiar. According to the plaintiff, his father Ramanathan Chettiar executed the Will dated 20.9.2002 bequeathing two immovable properties in favour of him and one property in favour of the defendants 1 to 3. Besides, he has also bequeathed various other shares and debentures in favour of the defendants 1 to 3. The Will dated 20.9.2002 is marked as Ex.P1. It is an admitted fact that initial burden always lies on the propounder to prove the execution as well as the attestation of Will, as contemplated under Section 63 of the Indian Evidence Act and also testamentary capacity of Testator. Once the execution and attestation of the Will and testamentary capacity as required under law are established, then the burden shifts on the other side to disprove the same. Admittedly, the wife of the testator Ramanathan Chettiar has not opposed the Will during her life time. Only the daughters of the said Ramanthan Chettiar, the defendants 1 to 3 herein, who are also the beneficiaries under Ex.P1, alone opposed the Will.
15. It is the main contention of the defendants that the Will has been prepared with the aid of P.W.2 and P.W.3. P.W.3, Dr.C.T.Alagappan, treated the plaintiff's father in the year 1999. However, he has not treated his father properly. Therefore, the family members, in fact, decided to file a case against him for medical negligence. But P.W.2, Ramasamy, prevented the same. The said Ramasamy and Dr.C.T. Alagappan are close friends. Therefore, as a gratitude, the plaintiff has not filed any case for medical negligence against P.W.3.
16. It is also the contention of the learned counsel for the defendants that the Will is a forged and fabricated one. Further, it is the contention of the defendants that on the date of the alleged Will, their father had lost his mental and physical health and he cannot understand and comprehend more objects than a single familiar one and lost disposing mentality due to prolong disease and health complaints. It is the specific case of the defendants that signature of the deceased Ramanathan Chettiar has been forged by the plaintiff and the same has been signed by P.W.2 and P.W.3, as attesting witnesses, at a later point of time. Therefore, according to the defendants, the Will is a forged one.
17. In the above background, when Ex.P1, Will, is carefully perused, it is clear that the same is an unregistered one and signed by the said Ramantahan Chettiar as a testator and attested by two witnesses, namely, Ramasamy (P.W.2) and Dr.T.C. Alagappan (P.W.3). When the evidence of P.W.2, attesting witnesses, is carefully analysed, which reveals that he was the Director of Ramco Super Leathers Ltd., In his evidence, he deposed that the testator was also one of the Director in the said company. P.W.2's evidence further reveals that the testator Ramanathan Chettiar was a partner with his father for more than 50 years. P.W.2, is closely associated with the family of the said Ramanthan Chettiar. P.W.2's association with the family of the testator is not disputed by the defendants.
18. It is pertinent to point out that in the written statement, the defendants themselves admitted that after the death of their father, they sought P.W.2's intervention for sharing the properties of the testator. In Para 5 of the written statement, the defendants have clearly indicated that at the time of discussion, the plaintiff attempted to set up the alleged Will, and the same was objected to by the defendants and thereafter, they filed caveat. It is also indicated in paragraph 5 of the written statement that when the defendants met Dr. Algappan, another attesting witnesses (P.W.3), he promised them to settle the matter amicably.
19. From the above specific pleadings made by the defendants in the written statement, it could be easily inferred that P.W.2 and P.W.3, attesting witnesses, are well known to the family members for many years. In fact, immediately after the death of the testator, there was a discussion about the Will and the defendants requested the plaintiff to pay 50% of the assets other than the properties bequeathed to them under the Will.
20. In these circumstances, when the entire evidence of of P.W.2 and P.W.3, attesting witnesses, are carefully analysed, as stated above, they are close associate of the family members of the testator and they are reputed persons in the society. P.W.2, in his evidence, has stated that the testator gave instruction to him to prepare the Will, and accordingly, he prepared the Will on 20.9.2002. He also stated that the testator signed in the Will in his presence as well in the presence of Dr.Alagappan (P.W.3). It is also clear that both the attesting witnesses seen the testator signing the Will and the testator also seen P.W.2 and P.W.3 attesting the Will. P.W.3, Dr. Alagappan in his evidence, clearly stated that he is the family friend of the testator from the year 1965. He has also spoken about the signing of the Will by the testator in his presence and also the presence of P.W.2. He has also deposed that both of them seen while the deceased Ramanathan Chettiar signing the Will, Ex.P1. Besides, P.W.2 and P.W.3 also spoken about the mental condition of the testator at the relevant time. When the entire evidence of P.W.2 and P.W.3 are carefully read, this Court does not find any suspicious circumstances with regard to the execution and attestation and testamentary capacity of testator.
21. That apart, a suggestion was put to P.W.2 to the effect that since there was a dispute between himself and the plaintiff and his business was going down, P.W.2 wanted to help the plaintiff, therefore, he is giving false evidence but the same was also denied by P.W.2. It is highly improbable to contend that when the business of P.W.2 himself was going down, there was no necessity for him to help the plaintiff by giving false evidence. Similarly, it was suggested to P.W.3, Dr. Alagappan, to the effect that since he has not treated the testator Ramanathan Chettiar properly and that there was a medical negligence, and the family members wanted to sue against him, however, on the intervention of P.W. 2, they did not sue him and, therefore, as a gratitude, he has tendered evidence in favour of the plaintiff. It is also highly improbable and the same was also denied by P.W.3.
22. The entire evidence of P.W.2 not only proves the execution of the Will, i.e., Ex P.1, but also shows that on the same day, the wife of the testator Ramanathan Chettiar also prepared another Will and the same was also attested by P.W.2 and P.W.3. Similarly. P.W.2's evidence also shows that Notes of Understanding also prepared and the same was signed by the deceased Ramanathan Chettiar and others.
23. In this regard, it is pertinent to point out that Notes of Understanding came into existence on the same day, when the Will was executed and the same was not disputed by the defendants. In fact, the above said copy of the Note of Understanding and Agreement, Ex.D1, was exhibited by the defendants through P.W.2. The said Ex.D1, photocopy of the Note of Understanding and Agreement, would clearly proves that fact that it was the third document executed on the same day.
24. Though an elaborate cross examination of P.W.2 was done, his evidence with regard to the execution of the Will by the wife of the testator Ramanathan Chettiar, namely, Chinthamani Aachi, on the same day, is not even disputed. The evidence of P.W.2 and P.W.3 not only established the execution of the documents by the testator Ramanthan Chettiar, but also proved the attestation as well as the testamentary capacity of the testator. Much emphasis was made by the learned counsel for the defendants that the said Ramanathan Chettiar was not hale and healthy and he was suffering from various ailments and was frequently admitted in the hospital and also had paralytic attack.
25. In this regard, Ex.P4 series, Discharge summary is carefully perused, it is seen that the testator was admitted in the Sundaram Medical Foundation between 16.12.1998 and 21.12.1998 as in-patient, wherein he was diagnosed for multiple Lacunar infarcts Brain and Brain stem. The same discharge summary also shows that previously he was diagnosed for renal Parenchymal disease. At the time of discharge, it was stated that sensory symptoms subsided and co-ordination improved. Further, Ex.P4 clearly shows that he was again admitted in the Sundaram Medical foundation on 20.01.2001 for kidney related ailments and discharged on 01.2.2001. Thereafter, he became stable and relatively symptom free. Ex.D5, xerox copy of the Discharge Summary issued by the Sundaram Medical Foundation shows that on 28.11.2002, the said Ramanathan Chettiar was admitted in the hospital for Acute Respiratory Failure/Chronic Renal Failure and hypertension. At the time of admission, he was conscious, oriented, a febrile and subsequently, he died on 03.12.2002. Therefore, it is clear that, even though he had some kidney related disease and other ailments, prior to his death, the testator Ramanathan Chettiar was conscious and oriented. Therefore, merely because the testator suffered some ailment in the year 1998 and 2001, it cannot be stated that he had lost his mental capacity. P.W.3, Dr. Alagappan is not only an attesting witness but, Doctor, by profession, he has also spoken about the mental condition of the testator at the relevant time. P.W.3, in his entire evidence, in fact, explained the nature of treatment given to the testator between the year 1998-2001, as mentioned in Ex.P4. He has also given explanation that though the testator had some muscle contradiction, the same was reduced and at the time of discharge, the testator is hemodynamically stable and relatively sympton free. In this regard, pleadings of the defendants assumes significance.
26. In the written statement, in paragraph 10 the defendants have admitted that their father was suffering from Neurological disorder and unable to move his finger and as per the doctor's advise, he dipped his fingers in the hot water and thereafter, on attaining mobility, he managed to put his signature. The above admitted fact clearly indicate that their father was, in fact, able to put his signature even though he has suffered some inability in the year 1998-2001 due to muscle contradiction. Ex.D5 would also clearly indicate that even just before his death, the testator was conscious and oriented. The plaintiff also established the fact that even in the year 2012, the testator Ramanathan Chettiar was handling bank accounts and signing cheques on his own and operating business transaction. Exs.P7 to P12 would also prove the same. Ex.P7 is the Delivery Instruction for market trades dated 01/10/2002 signed by the Ramanathan Chettiar. Similarly Ex.P8, is the another delivery instructions challan signed by Ramanathan Chettiar. Ex.P12 series, are the cheques dated 15.09.2002 16.09.2002, 16.10.2002, 16.09.2002, 16.10.2002, 19.10.2002, 22.11.2002, 28.10.2002, 09.11.2002, 22.11.2002 and 25.11.2002, which have been filed to show that all these cheques were signed by the Ramanathan Chettiar, even after Ex.P1, Will executed by him. Similarly, Ex.P6, partnership Deed entered into between Ramanathan Chettiar and his children and one S.Panayappan in the year 2000, is also filed to prove the signature of Ramanathan Chettiar. Ex.P7 delivery instruction for market trades signed by Ramanathan Chettiar is also exhibited. Similarly, delivery instruction by his clients signed by Ramanathan Chettiar is also exhibited as P8. Ex.P9, document clearly shows that Ramanthan Chettiar was handling cheques individually, meaning thereby, he has affixed his signature in the cheques issued. The copy of the cheques signed by Ramanthan Chettiar were also exhibited before this Court as stated above. Various documents including the income tax return signed by Ramanathan Chettiar were also exhibited. The defendants also admitted the aforementioned documents in Ex.P series and more particularly, the signature of the testator Ramananthan Chettiar found in Ex.P18.
27. The above documents, particularly, Exs.P10 to P.12, would clearly establish the fact that even after the date of execution of the Will, the testator Ramanthan Chettiar was handling the bank accounts and signed in several cheques. As already discussed above, P.W.2 and P.W.3, attesting witnesses clearly spoken about the testamentary capacity of the Ramanathan Chettiar at the relevant time. P.W.2 and P.W.3 also categorically stated in their evidence that on the same day of the Will, they have also stood as attesting witnesses to the Will executed by the wife of the testator, namely, Chinthamani Aachi and also signed in the Note of understanding. The execution of the Will by the mother of the defendants has not been disputed in the cross examination. D.W.1 also admitted that there was a discussion after the death of the testator and in fact, P.W.2 has given her a copy of Ex.P1, Will, at the earliest point of time. All these facts clearly show that the Will was, in fact, executed only by the deceased Ramanathan Chettiar and there was no suspicious circumstances whatsoever, shrouded in the Will.
28. It is the specific case of the defendants that the signature of the deceased Ramanathan Chettiar was a forged one. In that case, the entire burden lies on the defendants to establish the plea of forgery. It is needless to state that many admitted signatures of the deceased Ramanathan Chettiar were available on record and produced before this Court. Even the signatures signed by the deceased Ramanathan Chettiar during the relevant period also exhibited before this Court. If that being so, nothing prevented the defendants from taking aid of the expert to compare the admitted signatures of the said Ramanathan Chettiar with the alleged disputed signature in the Will. Therefore, having taken the plea of forgery, the defendants have failed to obtain the expert opinion in this regard.
29. Yet another contention of the learned counsel for the defendants that though the signature of the Notary Public has been affixed in the Will as if notary was present on the same day, the evidence of P.W.2 would clearly prove the fact that the same has been obtained through his staff. This fact would clearly show that Notary Public has not been present at the time of the execution of the Will. Merely because, the Notary Public attested on 20.9.2002, it cannot be concluded that he was also present at the time of execution of the Will. The evidence given by P.W.2 one of the attesting witness in this regard is reasonable and probable one. Therefore, the same itself cannot be a ground to deny the validity of the Will.
30. That apart, mere pleadings itself is not sufficient to infer the alleged forgery, whereas the evidence of P.W.2 and P.W.3 would clearly establish about the execution and attestation of the Will by the said Ramanathan Chettiar and that, there was no suspicious circumstances whatsoever attached to it. As stated earlier, P.W.2 and P.W.3 are the reputed person in the society. P.W.2 is the Director of Ramco Super Leather Pvt Ltd., and P.W.3, being the Doctor, is known to the entire family and hence, there was no need whatsoever, for them to go to the extent of giving false evidence. Therefore, on the entire analysis of the evidence, this Court hold that there was no suspicious circumstances whatsoever, attached to the Will. Furthermore, in the Will daughters were also provided not only with the immovable properties but also some movable properties. Merely because there was unequal distribution that cannot be a ground to reject the Will. It is for the testator to decide how to share the properties among the legal heirs. Similarly, not making any provision to the testator's wife, namely, Chinthamani Aachi, in the Will is also not a ground to suspect the Will for the simple reason that the evidence available on record clearly shows that on the date of the execution of the Will, his wife Chinthamani Aachi also executed another Will and the same has been attested by the very same P.W.2 and P.W.3. The above facts clearly indicate that his wife is also having sufficient property at the relevant time. That may be the reason for the testator for not allotting any properties in favour of his wife, in Ex.P1.
31. In this regard, it is useful to refer the judgment relied on by the learned counsel for the plaintiff in the case of CORRA VEDACHALAM CHETTY AND G.JAAKIRAMAN cited supra , wherein the Division Bench of this Court has held as follows:
25. The testamentary court is a court of conscience. It is not a court of suspicion. It is not the law that, whenever a Will is sought to be proved in the Court, the Court should start with the presumption that the Will is not genuine, that is fraudulent and that the person who chooses to probate the Will must remove all such suspicions even they are not unreal. The object of the probate proceedings is not to render the testamentary document ineffective but to make it effective and render the terms of that Will operate. In doing so, the Court has to take note of the fact that the testator is not available to the Court to state as to whether the document in fact was his or her last Will or as to what he or she has signed the same and whether the attestors had signed receiving an acknowledgement from him about the execution of the Will. It is for that reason that the Courts should be cautious while dealing with the evidence placed before them in relation to the executions and attestion, of the Will as also the disposing state of mind of the testator.
26.This need for caution, cannot be exploited by unscrupulous caveators who choose to cull out imaginary suspicions with a view to prevent the legatees under the Will from claiming the benefit thereunder and to render the last Will of the deceased wholly ineffective. In this context, the conduct of the persons who raise the alleged ground for suspicion is also to be looked at, to know as to how credible are the ground for suspicions sought to be raised by such persons. In this case, the suspicion is sought to be raised by a person who is keenly interested in making the Will ineffective and whose conduct is far from one which would inspire confidence in truthfulness of his statements. .. .. "
32. Similarly, in the case of SAVITHRI AND OTHERS V. KARTHYAYANI AMMA AND OTEHRS, the Hon`ble Apex Court has held as follows:
.. .. .. When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will or when the disposition arrears to be unnatural or wholly unfair in the light of the relevant circumstances or where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit, the Court must satisfy its conscience before its genuineness is accepted. .. .. In the very same judgment, the Hon`ble Apex Court has further held as follows:
.. .. .. Deprivation of a due share by a the natural heirs itself is not a factor which would lead to the conclusion that there exist suspicious circumstances. For the said purpose, as noticed herein before, the background facts should also be taken into consideration. .. .. ..
33. In S.SUNDARESA PAI AND OTEHRS V. SUMANGALA T. PAI AND ANOTHER, the Hon`ble Apex Court has held that the uneven distribution of assets amongst children by itself, cannot be taken as circumstance causing suspicion surrounding the execution of the Will. The Hon`ble Apex Court has also held that the execution of the Will having been proved by the attesting witness, on the facts and circumstances noticed above, no presumption could be drawn against the defendants for not having filed other admitted documents of Indira Bai for the purpose of comparing her signatures on the Will.
34. The above judgments would squarely be applicable to the facts of the present case, as the Will has been properly proved by the propounder in the manner known to law. Having regard to the above judgments as well as the complete analysis of the entire evidence, this Court is satisfied that the Will has been properly executed and attested as required under law and there are no suspicious circumstances proved with regard to the Will.
35. Insofar as the judgments in NIRANJAN UMESHCHANDRA JOSHI VS. MRIDULA JYOTI RAO AND OTHERS; SMT. JASWANT KAUR V. Amrit Kaur and JOSEPHINE JEROME AND OTHERS V. S.SANTHAGO AND ANOTHER cited supra relied on by the learned counsel for the defendants are concerned, there is no dispute with regard to the proposition laid down in the said judgments. But, in the case on hand, this Court is satisfied that the Will in question was executed and proved in the manner known to law and that there are no suspicious circumstances surrounding the execution of the Will. Therefore, the above judgments relied on by the learned counsel for the defendants are not applicable to the facts of the present case.
36. In the result,
(i). The suit in TOS.No.42 of 2005 is decreed.
(ii). The Letters of Administration, having the effect limited to the State of Tamil Nadu, shall be issued in favour of the plaintiff in respect of the property bequeathed to him in the Will dated 20.09.2002.
(iii). The plaintiff is directed to duly administer the estate of the deceased.
(iv). The plaintiff shall 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.
(v). The plaintiff is further directed to render true and correct accounts once in a year.
(vi). No costs.
20.02..2017 Index:Yes/no Internet: Yes/no ga N.SATHISH KUMAR.J. ga Pre-delivery Judgment in T.O.S.No.42 of 2005 (O.P.No.642 of 2005) 20.2..2017 http://www.judis.nic.in