Madras High Court
Lalitha Mohan vs Pratap K.Moturi on 17 February, 2020
Equivalent citations: AIRONLINE 2020 MAD 132
Author: M.M.Sundresh
Bench: M.M.Sundresh, Krishnan Ramasamy
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 06.02.2020
Dated : 17.02.2020
Coram
The Honourable Mr.Justice M.M.SUNDRESH
and
The Honourable Mr.Justice KRISHNAN RAMASAMY
Original Side Appeal No.19 of 2019
& C.M.P.Nos.1040 & 1026 of 2019
1.Lalitha Mohan
2.K.Anuradha Mothuri ... Appellants
Vs.
Pratap K.Moturi ... Respondent
Original Side Appeal is filed under Order XXXVI Rule 1 of the
Original Side Rules read with Clause 15 of the Letters Patent against the
judgment and decree dated 30.01.2018 made in T.O.S.No.73 of 2013
(O.P.No.761 of 2004).
For Appellants : Mr.Raja Kalifulla, S.C., for
Mr.T.K.Viswanath
For Respondent : Mr.V.Lakshminarayanan for
Mr.S.K.Rahul Vivek
http://www.judis.nic.in
2
JUDGMENT
M.M.SUNDRESH,J.
The appellants are defendants 2 and 3 in Testamentary Original Suit No.73 of 2018 converted accordingly in view of the caveat filed by the deceased first defendant being the husband and the father of the appellants. As the suit having been decreed upholding the validity of Ex.P1 being the last Will and testament of the father-in-law of the second defendant dated 20.05.1983, the present Original Side Appeal has been filed before us.
2.For the sake of convenience, the parties are referred as per their rank in T.O.S.No.73 of 2018.
3.Brief Facts:-
3.1.Late Sri S.Moturi Satyanarayana was a Member of the Parliament, apart from being a Member of the Legislative Assembly, who drafted the constitution. He was also the Chairman of the Dalmia Cements apart from being instrumental in the establishment of Hindi Prachar Sabha at Chennai. He had four sons and three daughters. He died on 06.03.1995. His wife Surya Kantha Devi pre-deceased him on 04.06.1988.
He left behind a registered Will under Ex.P1 dated 20.05.1983. The Will http://www.judis.nic.in 3 was kept in a sealed cover. As per the said document, the petitioner in O.P.No.761 of 2004 arrayed as the respondent in this appeal and the plaintiff in T.O.S.No.73 of 2013 has been declared as the Propounder.
This respondent is the third son of the testator. Ex.P1 has been attested by P.Ws.2 and 3.
3.2.In the year 1995, the plaintiff went to the office of the Sub Registrar and after following the procedure, read the Will pursuant to the application dated 17.07.1995. Thereafter, O.P.No.761 of 2004 was filed on 20.10.1997.
3.3.Under Ex.P1, the plaintiff has been given the ground floor. The second defendant viz., the second son of the testator has been given second and third floors. Incidentally, the plaintiff has been given the site behind the house. The other property, being a land, has been given in favour of his grandchildren including the third defendant. This property consists of four acres and has been divided into 1 acre, 1.5 acre and 1.5 acre respectively. Accordingly, one acre has to be given to the third defendant being the granddaughter of the testator. Ex.P1 reveals the fact that the properties are self-acquired properties of the deceased and a mention has been made about the children and wife. Movables have been http://www.judis.nic.in 4 given in favour of the wife and the absolute right of the testator to change the Will has been retained.
3.4.Ex.P2 is the sealed cover of the Will. In the sealed cover, the testator has put his signature. It was also signed by two witnesses including the plaintiff. After the death of the deceased, it was forwarded to the Registrar, Original Side, High Court, by Registrar, Joint-I, South Madras, by letter dated 09.02.2004. Earlier, it was opened by the Registrar, Madras South in the presence of P.W.3 and one of the sisters of the plaintiff, who is obviously the daughter of the testator. It was subsequently copied and filed in Book No.3 on 19.07.1995. The endorsement so made was also found in Ex.P1.
3.5.In view of the objection raised by the first defendant, who is incidentally the elder brother of the plaintiff, O.P.No.761 of 2004 was duly converted into a suit in T.O.S.No.73 of 2013. Thereafter he died. The appellants were impleaded as defendants 2 and 3. They filed written statement on 01.10.2015 raising a plea that Ex.P1 was not true and genuine and no Will at all has been left by the testator. In the objection filed by the deceased first defendant also, same contention has been raised that no Will has been executed. However, a plea has been taken http://www.judis.nic.in 5 that subsequently the deceased father had executed another unregistered Will dated 04.03.1995, though the evidence of the defendants 2 and 3 is to the effect that it was executed on 04.06.1995 whereas, the testator died on 06.03.1995.
3.6.Before the learned single Judge, the plaintiff examined himself as P.W.1 while P.Ws.2 and 3 are the attestors. Exs.P1 to P13 have been marked. Ex.P7 is the letter dated 06.06.1991 said to have been written by the first defendant. Ex.P8 is the sale deed in the name of the first defendant in the year 1977 and Ex.P9 is the letter written by the deceased.
Exs.P7 and P9 do make a mention about Ex.P1 and the understanding between the testator and the deceased first defendant that the first defendant shall neither question it nor go against others. They further reiterated the intention of the testator on the rationale behind his decision.
Ex.P9 further indicates the character of the first defendant, who was charged and arrested and thereafter, taken on bail. The second defendant examined as D.W.1 has acknowledged the signature of the testator in Ex.P9 while agreeing with the seal affixed in Ex.P7.
3.7.The defendants 2 and 3 marked Exs.D1 to D11. Ex.D7 is the Will dated 04.03.1995 said to have been executed in favour of the testator http://www.judis.nic.in 6 by the first defendant. To be noted, nobody was examined to prove Ex.D7 and the learned Advocate Commissioner appointed for the abovesaid purpose has filed a Report saying that no one was present in the address mentioned. The learned single Judge framed the following issues.
“1.Whether the Will dated 20.05.1983, executed by late S.Moturi Satyanaranaya is genuine, valid and not surrounded by suspicious circumstances?
2.Whether the Testator, viz. S.Moturi Satyanarayana had executed another Will dated 04.03.1995 and if so, whether it is valid, genuine and not surrounded by suspicious circumstances?
3.To what other reliefs the Plaintiff is entitled to? ...........................
12. The parties were invited to let in oral and documentary evidence. On the side of the Plaintiff, the Plaintiff, Pratap K.Moturi was examined as PW.1.
One of the attesting witness to the Will, J.Raghavendra Rao was examined as PW.2. The other attesting witness, P.Ravindra Kumar Reddy was examined as PW.3. The Plaintiff had marked Ex.P1 to Ex.P13. Ex.P1 is the original Will dated 20.5.1983 and Ex.P2 is the cover, which contained the original Will when it was deposited with the District Registrar, Madras South. Ex.P3 is the original death certificate of S.Moturi Satyanarayana and Ex.P4 is the legal heirship certificate of S.Moturi Satyanarayana. Ex.P7 http://www.judis.nic.in 7 is the letter, dated 6.6.1991 said to have been written by the 1st Defendant. Ex.P8 is the copy of the sale deed in Document No.295 of 1977 in the name of the 1st Defendant. Ex.P9 is the letter said to have been written by S.Moturi Satyanarayana, dated 15.5.1991. Ex.P10 is the settlement deed, executed by the 1st Defendant in favour of the 2nd Defendant and registered as Document No. 416 of 2002. Ex.P11, Ex.P12 and Ex.P13 are copies of cancellation of settlement deeds.
13. On the side of the Defendants, Ex.D1 to Ex.D11 were marked. Ex.D1 is the copy of joint patta issued in favour of the legal heirs. Ex.D2 to Ex.D5 are the copies of sale deeds executed by the Plaintiff as Power of Attorney Agent and Ex.D6 is the copy of Writ Petition in WP.No.19407 of 2013. Ex.D7 dated 4.3.1995 is the Will said to have been executed by the Testator in favour of the 1st Defendant. Ex.D8 to Ex.D11 had been marked by consent during the arguments and they are copies of judgement and decree in OS.No.768 of 2005 and AS.No.4 of 2008.” 3.8.Upon considering the rival contentions and perusing the evidence available on record, the learned single Judge has decreed the suit upholding the validity of Ex.P1. While doing so, the learned single Judge took note of the fact that the testator was a man of very high repute.
http://www.judis.nic.in 8 Ex.P1 was registered and executed on 20.05.1983. He died only on 06.03.1995. He had stated that he was hale and healthy. Mention has been made about the children and the wife. The evidence of P.Ws.2 and 3 cannot be eschewed merely because they were friends of the plaintiff. The land has also been given in favour of the third defendant. The procedure contemplated under the Tamil Nadu Registration Manual and the Registration Act, 1908, has been duly complied with. P.W.2 was a friend of the testator. The mere presence of the plaintiff's father/propounder would not be a factor to uphold the genuinity of the Will. The cancellation of certain documents by the plaintiff would not be a factor to hold that the Will is not true and genuine. In view of the procedure being adopted in registration and thereafter keeping Ex.P1 in the sealed cover followed by the handing over, the presumption available under Section 114(e) of the Indian Evidence Act, 1872 can be drawn on the official Act. The unregistered Will produced by the defendants 2 and 3 dated 04.03.1995 has not been proved in the manner known to law. Accordingly, the suit was decreed. Aggrieved over the same, the present Original Side Appeal has been filed.
4.Submissions of the learned counsel for the appellants:
The learned Senior Counsel appearing for the appellants submitted http://www.judis.nic.in 9 that at the time of execution of the Will, the plaintiff was present. Therefore, it creates a serious suspicion. The procedure contemplated under the Registration Act,1908, in Sections 40 and 41 has not been complied with. There is no evidence to show as to when the Will was deposited. The Registrar of the Registration Department has not been examined. There is a substantial delay in taking action to probate the Will and even after the filing, the petition was numbered after seven years. The plaintiff has cancelled the documents executed by him under Ex.P11 dated 20.10.2010 after objection raised by the first defendant. Therefore, the Will would not have been existing at the relevant point of time. The learned single Judge has not gone into the issue as to why the first evidence has been excluded. In support of his contentions, the learned Senior Counsel made strong reliance on the following decisions.
1.H.Venkatachala Iyengar V. B.N.Thimmajamma (1959 Supp.(1) SCR 426);
2.Bharpur Singh and others Vs. Shamsher Singh ((2009) SCC 687);
3.Babu Singh and others Vs. Ram Sahai @ Ram Singh ((2008) 14 SCC 754);
4.Jaswant Kaur Vs. Amrit Kaur and others ((1977) 1 SCC 369);
5.N.Govindarajan Vs. N.Leelavathy and others ((2011) 3 Law Weekly 774);
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6.Ramchandra Rambux Vs. Champabal and others (1965 AIR (SC) 354); and
7.Apoline D' Souza Vs. Johan D' Souza ((2007) 7 SCC 225).
8.M.L.Abdul Jabbar Sahib V. M.V.Venkata Sastri & Sons and others (1969 (1) Supreme Court Cases
573);
9.S.R.Srinivasa and others V. S.Padmavathamma ((2010) 5 Supreme Court Cases 274);
10.Joseph Antony Lazarus (Dead) by Lrs.. Vs. A.J.Francis ((2006) 9 Supreme Court Cases 515);
11.Kalyan Singh Vs. Chhoti and others ((1990) I SCC 266; and
12.Umakanta Das Bairiganjan Bhuyan Mahapatra Vs. Biswambhar Das Mahapatra (AIR 1929 Patna
401).
5.Submissions of the learned counsel for the Respondent.
Ex.P1 has been registered on 20.05.1983. The same has been proved by the examination of P.Ws.2 and 3. Merely they were known to the plaintiff, their evidence cannot be eschewed. The deceased was a man of repute. He lived for more than a decade after the execution of Ex.P1. Sections 40 and 41 of the Registration Act, 1908, did not have any application. We are dealing with the case of deposit of the Will in a sealed cover. Therefore, what is applicable is Section 42 of the Act, which comes http://www.judis.nic.in 11 under Part-IX. This Section has to be read along with the Tamil Nadu Registration Rules 79 and 80(hereinafter referred to as “the Rules”).
Therefore, Rules 69 and 70 are not applicable to the case on hand. If one goes through Exs.P7 and P9, the reasons for excluding the first defendant would be well known. D.W.1 has not denied the signature of attestor in Ex.P9 though these documents are of the year 1991, they make reference to Ex.P1. Ex.P8 also throws light on the fact that the interest of the first defendant has been taken note of already. D.W.1 has also admitted that a case has been registered against the first defendant, arrested and released thereafter. To prove fraud, undue influence and coercion, the onus is the person who alleges it. The said principle would also be in application to a Will. To strengthen his case, the learned counsel has placed reliance on the following judgments for consideration.
1.Sridevi and others V. Jayaraja Shetty and others((2005) 2 SCC 784);
2.Pentakota Satyanarayana and others V. Pentakota Seetharatnam and others ((2005) 8 SCC 67);
3.Savithri and others V. Karthyayani Amma and others ((2007) 11 SCC 621);
4.Madhukar D.Shende V. Tarabai Aba Shedage ((2002) 2 SCC 85); and
5.Ryali Kameswara Rao Vs. Bendapudi Suryaprakasarao and others (AIR 1962 AP 178).
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6.DISCUSSION:-
6.1.The Will has to be proved in accordance with Section 63 of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872. There is no substantial difference between a registered and unregistered Will insofar as the above compliance of the provisions is concerned. However, registration gives additional strength to the Propounder or beneficiary. Section 114(e) of the Indian Evidence Act, 1872, read with Section 60 of the Registration Act do create a presumption.
Such a presumption is attributable to the official act of registration. When a fraud is alleged, it is for the person making such an allegation to substantiate it. This onus cannot be confused with the mandatory requirement to prove the Will, which is always on the Propounder of the Will or the beneficiary. The testamentary Court is not a Court of suspicion but of conscience. The question as to whether the testator was in a sound and disposing state of mind is one of the fact. When suspicious circumstance is found to be in existence, the onus is with the Propounder to disbelieve it.
6.2.In the celebrated judgment rendered by the Apex Court in H.Venkatachala Iyengar V. B.N.Thimmajamma (1959 Supp.(1) SCR
426) the factors requisite to prove a Will has been illustrated with clarity.
http://www.judis.nic.in 13 We appositely refer the same hereunder.
“18.What is the true legal position in the matter of proof of wills ? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under s. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, ss. 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall http://www.judis.nic.in 14 be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will ? Did he understand the nature and effect of the dispositions in the will ? Did he put his signature to the will knowing what it contained ? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by s. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the, prudent mind in such matters.
19.However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, http://www.judis.nic.in 15 that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
20.There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as http://www.judis.nic.in 16 to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
21.Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
22.It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances http://www.judis.nic.in 17 surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson (1) " where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth ". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.” 6.3.This principle has been reiterated by the subsequent judgment of the Apex Court. What constitutes a suspicious circumstance has been given by way of a restraint while making it clear as not exhaustive by the Supreme Court in Bharpur Singh and others Vs. Shamsher Singh ((2009) SCC 687). The relevant passage is apposite.
“23.Suspicious circumstances like the following may be found to be surrounded in the execution of the Will:
i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time. http://www.judis.nic.in 18 iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
iv. The dispositions may not appear to be the result of the testator's free will and mind.
v. The propounder takes a prominent part in the execution of the Will.
vi. The testator used to sign blank papers.
vii. The Will did not see the light of the day for long. viii. Incorrect recitals of essential facts.
24.The circumstances narrated hereinbefore are not exhaustive.
Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the Will had duly been proved or not. It may be true that the Will was a registered one, but the same by itself would not mean that the statutory requirements of proving the Will need not be complied with.” 6.4.In Sridevi and others V. Jayaraja Shetty and others ((2005) 2 SCC 784), the Apex Court was pleased to hold that the onus to establish allegations of undue influence, fraud or coercion lies on the persons making such allegation. Following are the relevant passages.
“15.Coming to the suspicious circumstances surrounding the will, it may be stated that although the testator was 80 http://www.judis.nic.in 19 years of age at the time of the execution of the will and he died after 15 days of the execution of the will, the two attesting witnesses and the scribe have categorically stated that the testator was in sound state of health and possessed his full physical and mental faculties. Except that the deceased is 80 years of age and that he died within 15 days of the execution of the will, nothing has been brought on record to show that the testator was not in good health or possessed of his physical or mental faculties. From the cross- examination of the scribe and the two attesting witnesses, the appellants have failed to bring out anything which could have put a doubt regarding the physical or mental incapacity of the testator to execute the will. Submission of the learned counsel for the appellants that the testator had deprived the other heirs of his property is not true. The family properties had been partitioned in the year 1961. The shares which were given to Dharmaraja Kadamba and Raviraja Kadamba were in possession of tenants and vested in the State Government after coming into force of Karnataka Land Reforms (Amendment) Act, 1973 whereas the properties which had been given to the daughters were in the personal cultivation of the family. The testator while executing the will bequeathed the properties which had fallen to his share in the partition and which he had inherited from his brother which were in his personal cultivation in favour of his two sons Dharmaraja Kadamba and Raviraja Kadamba and gave the right to http://www.judis.nic.in 20 receive compensation to other heirs of the properties which were under the tenants and had vested in the State Government. It is not a case where the father had deprived his other children totally from inheritance. Reasons for unequal distribution have been given in the will itself. This had been done by him to balance the equitable distribution of the properties in favour of all his children.
16.Counsel for the appellants argued that Respondent No. 13 had taken prominent part in the execution of the will as he was present in the house at the time of the alleged execution of the will. We do not find any merit in this submission. Apart from establishing his presence in the house, no regarding the execution of the will. Mere presence in the house would not prove that he had taken prominent part in the execution of the will. Moreover, both the attesting witnesses have also stated that the daughters were also present in the house at the time of execution of the will. The attesting witnesses were not questioned regarding the presence of the daughters at the time of the execution of the will in the cross-examination. The presence of the daughters in the house at the time of execution of the will itself dispels any doubt about the so- called role which Respondent No. 13 had played in the execution of the will. They have not even stepped into the witness box to say as to what sort of role was played by Respondent No. 13 in the execution of the will.” http://www.judis.nic.in 21 6.5.In Savithri and others V. Karthyayani Amma and others ((2007) 11 SCC 621), the Supreme Court has held that the fact that the testator lived for long number of years after the due execution is to be borne in mind while testing the genuinity of the Will. The relevant paragraph is as follows:
“The Will was admittedly registered. The testator lived for seven years after execution of the Will. He could change his mind; he did not. The very fact that he did not take any step for cancellation of the Will is itself a factor which the Court may take into consideration for the purpose of upholding the same. The question as to whether the Register was brought to the house of the propounder or he had gone to the Registrars office is not a matter which requires serious consideration.” Therefore, mere participation or the presence of the Propounder or the beneficiary by itself cannot be a prime factor to disbelieve the Will sans the other circumstances governing.
7.Having considered the principle governing the proof of Will and due execution, let we go into the facts on hand.
Ex.P1 is the registered Will executed as early as 20.05.1983. This was deposited in a sealed cover by the testator. P.Ws.2 and 3 are the attesting witnesses. There is also evidence to show that they were known http://www.judis.nic.in 22 to the testator. P.W.2's father was the friend of testator. The testator not only lived for decade after due execution of Ex.P1 but also a man of knowledge, wisdom and repute. He was the Member of the Constituent assembly, Member of the Parliament and Chairman of the Dalmia Cements. As stated by the learned single Judge, he made a mention about his children and his wife. It is not as if the first defendant was excluded deliberately. He lives in his own house. One acre of land has also been given in favour of the third defendant. Ex.P9 clearly indicates the reason.
In Ex.P9, the testator has stated the reasons while mentioning Ex.P1. He also indicated his fair mind. This document also shows that Ex.P1 has been prepared to the knowledge and the consent of the deceased first defendant. This was also taken note of by the first defendant under Ex.D7.
He also refers to the Will though D.W.1 disputes the signature under Ex.P7. Mere participation of the plaintiff would not make Ex.P1 having been one executed by force or coercion. Not only the Will has been registered but it was also deposited. It was produced before this Court through the Registrar, Registration Department, through the Joint Registrar, Original Side having obtained from the Registration Department.
Ex.P2 is the cover. Due procedure has been followed including obtaining signature of the attesting witnesses. P.W.3 also once again stated about going to the registration office and opening of. the sealed cover. We must http://www.judis.nic.in 23 also keep in mind that witnesses deposed after decades of executing Ex.P1. This is also acknowledged by one of the sisters. We may note that none of the sisters have raised any objection. In fact, few of them filed their affidavits in support of the Will. As discussed earlier, Exs.P7 and P9 clearly show the reason for exclusion of the first defendant. Despite that, the testator has indicated his fairness in giving something to all his grandchildren, including the third defendant. Much has been said on the procedure having been not followed. Evidence of P.W.1 also shows that the deceased defendant was involved in a criminal case and arrested.
Sections 40 and 41 of the Registration Act do not have any application.
We are concerned with the deposit of the Will which would come under Sections 42 and 43 of the Act. Therefore, Rules 63 and 79 are applicable against Rules 79 to 80-A. This procedure has been followed correctly. The first defendant has also totally taken a contrary stand in the affidavit followed by the written statement filed by the defendants 2 and 3. While on the one hand, it has been stated that there is no Will at all, on the other hand, another unregistered Will is sought to be produced. Though the Will is stated to have been dated 04.03.1995, the evidence was, it was executed after the death of the testator. No one has been examined to prove it nor the correct address was found. Therefore, the learned single Judge has rightly rejected the same.
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7.We have perused the judgement of the learned single Judge. All the contentions have been taken note of. The deceased first defendant and the appellants have set up a false and fabricated Will by way of defence. The cancellation deed executed by the plaintiff also makes the reference to Ex.P1. Thus, this document cannot help the case of the appellants. In such view of the matter, while answering the issues in favour of the plaintiff, the above original side appeal stands dismissed. No costs. Consequently, connected miscellaneous petitions are also dismissed.
(M.M.S.,J.) (K.R.,J.)
17.02.2020
Index:Yes
raa
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25
M.M.SUNDRESH,J.
and
KIRSHNAN RAMASAMY,J.
raa
Pre-Delivery Judgment in
O.S.A.No.19 of 2019
17.02.2020
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