Karnataka High Court
Sri Robert Rex S/O H.W. Rex vs Smt Philomina W/O Chirstopher D'Souza on 15 June, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
-1-
NC: 2023:KHC:20654
RFA No. 2007 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
REGULAR FIRST APPEAL NO. 2007 OF 2007 (RES)
BETWEEN:
1. SRI ROBERT REX
S/O H.W. REX
AGED 72 YEARS
HOSAMANE EXTENSION
CHICKMAGALUR
SINCE DECEASED
BY LEGAL REPRESENTATIVES
1(a) SMT. IRIN REX
W/O LATE ROBERT REX
AGED 70 YEARS.
Digitally signed
by 1(b) SRI ANTHONY REX
DHANALAKSHMI
MURTHY S/O LATE ROBERT REX
Location: High AGED 48 YEARS.
Court of
Karnataka
1(c) SMT GRACY REX
W/O FREDIRICK
AGED 42 YEARS
R/O BANNIMANTAPPA, MYSORE.
1(d) SMT JENE MENDONSA
W/O RENNI MENDONSA
AGED 38 YEARS
NEAR RAILWAY STATION
-2-
NC: 2023:KHC:20654
RFA No. 2007 of 2007
KUNNUR, WELLINTON
OOTY, TAMILNADU-643231.
1(e) SRI JAMES REX
S/O ROBERT REX
AGED 32 YEARS
PROPOSED LRs. 1(a), 1(b) and 1(c)
ARE R/O HOSAMANE EXTENSION
CHICKMAGALUR CITY
CHICKMAGALUR-577101. ...APPELLANTS
(BY SRI. C N KAMATH, ADVOCATE AND
SRI. VINAYAK KAMATH., ADVOCATE)
AND:
SMT PHILOMINA
W/O CHIRSTOPHER D'SOUZA
AGED 52 YEARS
HOSAMANE EXTENSION
CHICKMAGALORE-577101. ...RESPONDENT
(BY SRI. H N M PRASAD., ADVOCATE)
THIS RFA IS FLED UNDER SECTION 96 OF CPC R/W
SECTION 299 OF INDIAN SUCCESSION ACT, AGAINST THE
JUDGMENT AND DECREE DATED:20.6.2007 PASSED IN
O.S.NO.1/98 (P & SC 1/1997) ON THE FILE OF THE PRL.
DIST. JUDGE, CHIKMAGALUR, DECREEING THE SUIT FOR
PROBATE.
THIS APPEAL, COMING ON FOR HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
-3-
NC: 2023:KHC:20654
RFA No. 2007 of 2007
JUDGMENT
This appeal is filed by the plaintiff under Section 96 of CPC read with Section 299 of Indian Succession Act, challenging the judgment and decree dated 20.06.2007 passed by the Principal District Judge, Chikmagalur in O.S.No.1/1998 (originally, P & SC No.1/1997), whereby the trial court has decreed the plaintiff's suit, issuing probate of the Will dated 05.08.1980, in favour of the plaintiff.
2. For the sake of convenience, the parties are referred to as per their rankings before the trial court. FACTS OF THE CASE:
3. The Testator of the Will is Philomina and the plaintiff is also Philomina. Hence, the Testator of the Will - Philomina will be referred to as Philomena (Senior). The case of the plaintiff is that her mother Philomina (Senior) died on 12.03.1989, leaving behind the plaintiff as the only daughter. It is the further case of the plaintiff that Michel Rex pre-deceased his wife, Philomina (Senior). It is -4- NC: 2023:KHC:20654 RFA No. 2007 of 2007 her further case that she was the only daughter of Michel Rex and Philomina (Senior). The plaintiff married to Christopher D'Souza during the lifetime of Michel Rex. Till the death of Philomina (Senior), she was residing with the plaintiff. Philomena (Senior) executed a Will dated 05.08.1980, it was the last Will of the deceased, wherein she bequeathed the suit property in favour of the plaintiff. The plaintiff undertook to render the accounts of the properties and liabilities of late Philomina (Senior).
4. The further case of the plaintiff is that when Philomina (Senior) executed the Will, she was in a sound and disposing state of mind. She has executed the Will in the presence of two attestors by name K.Venkatesha Pai and S.K.Ravichandra of Chikmagalur. The attestors to the Will saw the Testator executing the Will. The further case of the plaintiff is that after the death of the Testator, khatha of the property was changed to the name of the plaintiff on 11.10.1990. It is her further case that on 13.12.1996, she received a notice from the Municipality in -5- NC: 2023:KHC:20654 RFA No. 2007 of 2007 respect of change of khatha to the name of the defendants. Even though there is a Will in favour of the plaintiff, the defendants without any right took over the property and tried to get their names entered into the municipal records. Hence, she approached the District Court by filing a petition in P & S.C.No.1/1997. After the matter has been contested by the defendants, it has been numbered as O.S.No.1/1998.
5. The defendants appeared through their counsel and filed written statement contending that the suit filed by the plaintiff is not maintainable. They contended that Philomina (Senior) died on 12.03.1989 in the house of the defendants and not in the house of the plaintiff. They admitted that the suit property belongs to late Philomina. They have denied that the plaintiff was the daughter of Michel Rex and Philomina (Senior). They have also denied that the plaintiff was looking after Philomina (Senior) till her death. It is further contended that Philomina (Senior) has executed a Will in favour of the original defendant's -6- NC: 2023:KHC:20654 RFA No. 2007 of 2007 daughter, namely, Gracy Rex on 24.12.1987. It is further contended that the plaintiff is not called upon to prove the Will beyond reasonable doubt and the Will at Ex.P1 produced by the plaintiff is a concocted one and the plaintiff has tampered with the documents. It is further contended that since the plaintiff has no right or title over the suit property, she is not entitled for probate of the Will. Hence, they sought for dismissal of the suit.
6. On the basis of the pleadings of the parties, the trial court has framed the following issues:
"1) Does the plaintiff prove that late Smt.Philomina, W/o.late Michel Rex, executed a Will dated 5.8.1980 appointing her as executor and that it is her last Will?
2) Is the plaintiff entitled to Probate as prayed for?
3) What order or decree?"
7. To prove the case, plaintiff examined herself as PW-1 and other six witnesses as PWs. 2 to 7 and marked -7- NC: 2023:KHC:20654 RFA No. 2007 of 2007 documents as Exs. P1 to P94. On behalf of the defendants, defendant No.2 Anthony Rex has been examined as DW1 and also examined one more witness as DW2 and marked documents as Exs. D1 to D3. On appreciation of the oral and documentary evidence, the trial court answered issue Nos. 1 and 2 in the affirmative, decreed the suit and issued probate of the Will dated 05.08.1980 registered on 28.08.1980. Being aggrieved by the same, the defendants have filed this appeal. SUBMISSIONS OF THE APPELLANTS:
8. Learned counsel appearing for the appellants/defendants has contended that firstly, the suit filed by the plaintiff is barred by limitation. Under Article 137 of the Limitation Act, 1963 (for short, 'Limitation Act'), the suit has to be filed within three years from the date of cause of action. The khatha of the property in dispute has been changed to the name of defendant No.3 on 22.05.1992. The plaintiff was aware of the same and she -8- NC: 2023:KHC:20654 RFA No. 2007 of 2007 could have filed the suit within three years from 1992, but the suit has been filed in the year 1997, after a lapse of five years. In support of his contention, he relied on the judgment of the Hon'ble Apex Court in the case of SAMEER KAPOOR AND ANOTHER vs. STATE THROUGH SUB-DIVISION MAGISTRATE SOUTH, NEW DELHI AND OTHERS reported in AIR 2019 SC 3318. He further contended that even though the plaintiff has pleaded that it has come to her knowledge only when she received the notice from the CMC, Chikmagalur on 13.12.1996, except pleading, she has not produced any notice to show that it has come to her knowledge about change of khatha only in 1996. Since the pleading is not supported by any evidence, the trial court has erred in entertaining the suit. In support of his contention, he has relied upon the decision of Apex court in the case of RAM SARUP GUPTA (DEAD) BY LRS. VS. BISHUN NARAIN INTER COLLEGE AND ORS. (AIR 1987 SC 1242).-9-
NC: 2023:KHC:20654 RFA No. 2007 of 2007
9. Secondly, the learned counsel has contended that under Section 281 of the Indian Succession Act, 1925 (for short, 'Succession Act'), an application for probate petition shall also be verified by atleast one of the witnesses to the Will. There is no compliance of Section 281 of the said Act. The suit itself is not maintainable and has to be rejected.
10. Thirdly, the learned counsel has contended that the suit schedule property originally belonged to Rathnamma, who is the mother of the original defendant and Michel Rex, who is the husband of Philomina (senior) and since it is a joint family property, Philomina (Senior) has no right to execute any Will in favour of the plaintiff. He has relied on paragraph 30.6 of the judgment of the Apex Court in the case of KAVITA KANWAR vs. MRS.PAMELA MEHTA AND OTHERS reported in AIR 2020 SC 2614 to contend that any person, who has no right over the property could not have executed the will.
- 10 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007 Hence, Will produced at Ex.P-1 is considered to be void as per Section 89 of Indian Succession Act.
11. Fourthly, the learned counsel has contended that the alleged Will claimed to be executed by Philomina (Senior) is surrounded by suspicious circumstances. The plaintiff created the Will only for the purpose of making wrongful gain and it is a concocted document. The plaintiff has fabricated the Will. Even as per the evidence of PW1, she has deposed that Philomina (Senior) also knows to sign but in the Will her thumb impression has been taken. There is no explanation or reason given by none of the witnesses as to why the Testator of the Will has not signed.
12. Fifthly, the learned counsel has contended that even though the plaintiff has examined the attesting witnesses as PWs.4 and 5, PW5 has admitted in the cross-examination that he has not seen the document signed by the Testator. When he went there to put his
- 11 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007 LTM, the LTM of the Testator was already put on the document and nobody has affixed the LTM in his presence. Further, PW4 has deposed that Testator affixed LTM on the Will in the Sub-Registrar office. The scribe has been examined as PW-2. In his evidence, he has deposed that the Will has been prepared as per the instructions and the Testator has affixed the LTM on the Will in his office. There is no consistency in the evidence of the plaintiff and the other witnesses. Therefore, there is suspicious circumstances that revolves around the execution of the Will. The Trial Court has erred in decreeing the suit. Hence, the appeal is required to be allowed.
13. Sixthly, the learned counsel has contended that by looking into Ex.P1, it is very clear that there is an insertion in the last line in the Will. Therefore, it is very clear that Ex.P1 - Will has been created only for the purpose of making wrongful gain. Even though the trial court has held that there is some discrepancy in the evidence, inspite of that, it has erred in decreeing the suit.
- 12 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007 Hence, he sought for allowing the appeal filed by the defendants.
SUBMISSIONS OF RESPONDENT:
14. Per contra, learned counsel appearing for the respondent/plaintiff has contended that firstly, the plaintiff has specifically pleaded regarding limitation and cause of action for filing the suit. The averment of the plaintiff has not been denied by the defendants in the written statement and they have not raised any question regarding limitation in the written statement before the trial court and in the grounds urged in the memorandum of appeal. For the first time, before this Court, the question of limitation has been argued. He contended that limitation is a mixed question of law and facts and it cannot be allowed to be raised for the first time before this Court. In support of his contention, he relied upon paragraph 21 of the judgment of the Apex Court in the case of KAMLESH BABU AND OTHERS vs. LAJPAT RAI
- 13 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007 SHARMA AND OTHERS (Civil Appeal No.2815/2008 decided on 16.04.2008).
15. Secondly, the learned counsel has contended that the plaintiff has come to know in respect of change of khata only on 13.12.1996 upon receiving notice from the CMC. Therefore, limitation for filing the probate suit arises when it becomes necessary to apply and not within three years from the date of the death of the Testator. In support of his contention, he relied on the judgment of the Hon'ble Apex Court in the case of KRISHNA KUMAR SHARMA vs. RAJESH KUMAR SHARMA reported in AIR 2009 SC 3247.
16. Thirdly, in respect of contention of the learned counsel of the appellants regarding Section 281 of the Succession Act, the learned counsel for the respondent has contended that it is not mandatory, it is only directory. To that effect he relied upon the judgment of the Allahabad High Court in the case of NAND KISHORE RAI AND
- 14 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007 ANOTHER vs. MST.BHAGI KUER AND OTHERS reported in AIR 1958 Allahabad 329 and the judgment of the Madhya Pradesh High Court in the case of JAMUNABAI AND OTHERS vs. SURENDRAKUMAR AND ANOTHER reported in AIR 1995 MP 274 and contended that the defects can be cured by examining one of the witnesses to the Will. Since scribe as well as two witnesses of the Will have been examined, it cannot be held that there is no compliance of Section 281 of the said Act.
17. It is further contended that the suit is filed only for the purpose of issue of probate of the Will and probate Court is not competent to determine the question of title of the suit property. In support of his contention, he relied on the judgment of the Hon'ble Apex Court in the case of KANWARJIT SINGH DHILLON vs. HARDYAL SINGH DHILLON AND OTHERS reported in AIR 2008 SC 306.
- 15 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007
18. Fourthly, the learned counsel has contended that there is no suspicious circumstance that revolves around the execution of the Will. The plaintiff is the only daughter of the Testator and therefore, there is no necessity for the plaintiff to get a concocted Will. Even under Section 37 of the Succession Act, the plaintiff inherited the properties of Philomina (Senior). As per Section 68 of the Indian Evidence Act, 1872 (for short, 'Evidence Act'), the Will has to be proved by examining the attesting witnesses, if they are alive. Here, the plaintiff has examined the scribe as well as the two attesting witnesses. PW4 - one of the attesting witnesses has identified the Will and he has also admitted that the Testator has attested the LTM in his presence. Even PW2 also identified the LTM of the Testator and that she has affixed the LTM in his presence. Ex.P1 has been executed in the year 1980 and it is a registered document. The evidence of the parties has been recorded in the year 2000. There may be some discrepancy in the evidence but that cannot be a ground to reject her claim. He further
- 16 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007 contended that the court can declare that the Will has been executed under suspicious circumstances only in the circumstances as explained by the Hon'ble Apex Court at paragraph 28 in the case of KAVITHA KANWAR (supra). Therefore, the trial court, after considering the evidence of the parties has rightly decreed the suit.
19. Heard learned counsel for the parties. Perused the impugned order and the original records.
20. After hearing the learned counsel for the parties, the point that arise for consideration in this appeal is:
"Whether the judgment and decree passed by the trial court is erroneous, arbitrary and capricious calling for any interference from this Court?"
REASONING AND CONCLUSION
21. It is not in dispute that the suit schedule property originally belonged to Rathnamma. Rathnamma died leaving behind two sons Robert Rex and Michel Rex.
- 17 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007 Robert Rex is the original defendant and Michel Rex is the husband of Philomina (Senior).
22. The case of the plaintiff is that the suit schedule property is given to the share of the Testator's husband. After his death, she has absolute right and title over the property. Since the plaintiff was the only daughter of Philomina (Senior), she has executed the Will dated 05.08.1980 in favour of the plaintiff.
23. The further case of the plaintiff is that after the death of Philomina (Senior), khatha of the property in dispute has been changed to the name of the plaintiff. In the year 1990, without notice to the plaintiff, khatha has been changed in the name of the defendant in the year 1992. On 13.12.1996, when the plaintiff received a notice from the CMC, Chikmagalur, then only she came to know that the khatha has been changed to the name of the defendants. Hence, she filed the suit.
24. The defendants, on appearance, have filed the written statement. There is no denial in the written
- 18 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007 statement regarding the cause of action pleaded by the plaintiff in the plaint. There is no averment in the written statement regarding the limitation. For the first time, defendants have raised the issue of limitation before this Court. The Hon'ble Apex Court in the case of KRISHNA KUMAR SHARMA (supra) has held that in the proceedings under probate, Article 137 of the Act is applicable. The Hon'ble Apex Court has held that for applying for probate or letter of administration, Article 137 of Limitation Act is applicable.
25. The Hon'ble Apex Court in the case of KRISHNA KUMAR SHARMA (supra) further, has held that the right to apply for probate would accrue when it becomes necessary to apply, which may not necessarily be within 3 years from the date of the deceased's death. Paragraph-9 of the said judgment is relevant and same is extracted hereinbelow:
"9. Similarly, reference was made to a decision of the Bombay High Court's case in
- 19 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007 Vasudev Daulatram Sadarangani v Sajni Prem Lalwani (AIR 1983 Bom.268).
Para 16 reads as follows:
"16. Rejecting Mr. Dalapatrai's contention, I summarise my conclusions thus:--
(a) under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made;
(b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted;
(c) such an application is for the Court's permission to perform a legal duty created by a Will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed;
(d) the right to apply would accrue when it becomes necessary to apply which may not
- 20 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007 necessarily be within 3 years form the date of he deceased's death.
(e) delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion;
(f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion of delay no longer operates".
26. By looking into the above judgments and pleadings of the parties, it is held that the suit is filed within the limitation period.
27. In respect of the second contention that there is non-compliance of Section 281 of the Succession Act, the Allahabad High Court in the case of NAND KISHORE RAI (supra) has held that provisio to Section 281 is merely directory and not mandatory, non-compliance with it is not intended to lead to the rejection of the plaint. Even
- 21 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007 Madhya Pradesh High Court in the case of JAMUNABAI (supra) also held that it is not mandatory. Even otherwise, the non-compliance of Section 281 of the Succession Act is not vital to the case and it is a curable defect. In the case on hand, the plaintiff has examined the scribe as well as two attesting witnesses. Therefore, the contention of the appellants/defendants that the suit ought to have been dismissed for non-compliance of Section 281 of Indian Succession Act, is unsustainable.
28. The third ground raised by the appellants that the Testator has no right or title over the suit schedule property and she has no right to execute the Will in favour of the plaintiff and the Will executed by the testator is void. The Hon'ble Apex Court in the case of KANWARJIT SINGH DHILLON (supra) has held that it is not competent for the probate court to determine whether the testator had or had not the authority to dispose of the suit property. The relevant paragraph of the said decision is extracted below:
- 22 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007 "10. The High Court by the impugned order, relying on a decision of this Court in the case of Smt. Rukmani Devi and Ors. v. Narendra Lal Gupta, [1985] 1 SCC 144 affirmed the order of the civil court by holding that a probate granted by a competent probate court was conclusive of the validity of the Will of late S.Kirpal Singh until it was revoked and no evidence could be admitted to impeach the said Will except in a proceeding taken for revoking the probate. According to the High Court, a decision of the probate court would be a judgment in rem which would not only be binding on the parties to the probate proceeding but would be binding on the whole world. Upon the aforesaid finding, the High Court had affirmed the order of the civil court holding that the suit must be dismissed in view of the fact that the probate court had already granted probate in respect of the Will executed by late S.Kirpal Singh relating to the suit properties. We are not in a position to agree with the views expressed by the High Court in the impugned order nor are we in agreement with the order passed by the civil court. As noted herein earlier, the suit for declaration of title and injunction has been filed by the appellant inter alia on the allegations that the suit properties are joint family properties of the HUF of which the appellant and his two brothers Hardyal Singh Dhillon and
- 23 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007 Harbans Singh Dhillon, mother Surjit Kaur and unmarried daughter Amarjit Kaur are members. It has also been claimed by the appellant in the suit that by utilizing the income from the ancestral agricultural land, various properties including the suit properties were acquired. Such being the allegations made in the plaint which can only be decided on trial after parties are permitted to adduce evidence in respect of their respective claims, it is difficult to hold that only because probate of the Will of late S.Kirpal Singh has been granted, the suit for title and injunction must be held to be not maintainable in law. It is well settled law that the functions of a probate court are to see that the Will executed by the testator was actually executed by him in a sound disposing state of mind without coercion or undue influence and the same was duly attested. It was, therefore, not competent for the probate court to determine whether late S.Kirpal Singh had or had not the authority to dispose of the suit properties which he purported to have bequeathed by his Will. The probate court is also not competent to determine the question of title to the suit properties nor will it go into the question whether the suit properties bequeathed by the Will were joint ancestral properties or acquired properties of the testator."
- 24 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007
29. Even the Hon'ble Apex Court in the case of PASUPATI NATH DAS (DEAD) vs. CHANCHAL KUMAR DAS (DEAD) BY LEGAL REPRESENTATIVES AND OTHERS reported in (2018) 18 SCC 547 has held that jurisdiction of the probate court is confined only to the genuineness of the Will and adjudication of the probate proceedings. The relevant paragraph of the said decision is extracted hereinbelow:
14. We must, at the outset, say that the scope of the matter arising from probate proceedings is very limited. The scope of the matter is primarily and principally regarding the genuineness of the execution of the testament or will. This part has been succinctly dealt with in a decision rendered by this Court in Krishna Kumar Birla v. Rajendra Singh Lodha [Krishna Kumar Birla v. Rajendra Singh Lodha, (2008) 4 SCC 300] . Paras 57, 66 and 67 of the said decision spell out the scope of the enquiry in probate proceedings as under: (SCC pp. 329-32) "57. The 1925 Act in this case has nothing to do with the law of inheritance or succession which is otherwise governed by statutory laws or the custom, as the case may be. It makes detailed provisions as to how and in what manner an application for grant of probate is to be filed,
- 25 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007 considered and granted or refused. Rights and obligations of the parties as also the executors and administrators appointed by the court are laid down therein. Removal of the existing executors and administrators and appointment of subsequent executors are within the exclusive domain of the court. The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into the (sic probate) proceedings. Construction of a will relating to the right, title and interest of any other person is beyond the domain of the Probate Court.
***
66. We may, however, at the outset, notice a decision of this Court in Elizabeth Antony v. Michel Charles John Chown Lengera [Elizabeth Antony v. Michel Charles John Chown Lengera, (1990) 3 SCC 333] which is binding on us. Therein, the testatrix viz. one Mary Aline Browne, was the wife of one Herbet Evander Browne, the eldest son of John Browne. Mary died on 28-3- 1972. She had executed a will on 12-3-1962. An application for grant of a letter of administration with a copy of the will annexed was filed by Michel. Petitioner Elizabeth Antony and her husband Zoe Enid Browne filed caveats on the plea that the said will was a forged document. The petitioner therein also claimed that her daughter Browne had executed a will on 23-6- 1975 and she had executed a deed of gift in favour of the petitioner. She also claimed herself to be a trustee of John Browne Trust. The Probate Court held that they had no caveatable interest. Caveatable interest, therefore, was claimed as an executor and legatee of the will executed by Zoe Enid Browne as also a deed of gift in respect of one item of the estate executed in their favour. Caveatable interest was also
- 26 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007 claimed on the premise that the petitioner was appointed a trustee of John Browne Trust. This Court noticed a large number of High Court judgments. It was, however, opined that the petitioner therein failed to establish a caveatable interest stating: (SCC p. 336, para 6) '6. ... We have perused the entire order of the trial court in the context. Admittedly neither the original nor a copy of the will said to have been executed by Zoe Enid Browne, was filed. Now coming to the trust, it is in the evidence of PW 1 that John Browne Trust has come to an end in March 1972 and the same was not in existence. The trial court has considered both the documentary and oral evidence in this regard and has rightly held that the petitioner has no existing benefit from the trust. Likewise the registered gift deed or a copy of it has not been filed. Before the learned Single Judge of the High Court also same contentions were put forward. The learned Judge observed that from the objections filed by the caveator she desires the court in the probate proceedings to uphold her title on the strength of a gift deed and the trust deed. It is observed:
"Equally, the petitioner has not placed before the court the will dated 23-6-1975 stated to have been executed by Zoe Enid Browne to establish that under the will dated 12-3-1962 stated to have been executed by Mary Aline Browne some interest given to the petitioner under the will dated 23-6-1975 of Zoe Enid Browne, is liable to be in any manner affected or otherwise displaced, by the grant of letters of administration in respect of the will dated 12-3-1962 stated to have been executed by Mary Aline Browne."
- 27 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007 Accordingly, the learned Judge held that the petitioner has not established that she has a caveatable interest justifying her opposition to the probate proceedings for grant of letters of administration. In this state of affairs, we are unable to agree with the learned counsel that the petitioner has caveatable interest.' This Court, thus, categorically opined that while granting a probate, the court would not decide any dispute with regard to title. A separate suit would be maintainable therefor. If probate is granted, they have a remedy in terms of Section 263 of the 1925 Act also.
67. In the recent judgment of Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon [Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon, (2007) 11 SCC 357] this Court inter alia relying upon Chiranjilal Shrilal Goenka v. Jasjit Singh [Chiranjilal Shrilal Goenka v. Jasjit Singh, (1993) 2 SCC 507] and upon referring to a catena of decisions of the High Court and this Court, held that the Probate Court does not decide any question of title or of the existence of the property itself."
(emphasis supplied)
30. The judgment relied upon by the appellant in the case of KAVITA KANWAR (SUPRA) (paragraph 30.6) is not applicable to the facts of the case. The Hon'ble Apex Court, depending on the facts of that case, has held that the Will in that case requires to be considered as void as per Section 89 of the Indian Succession Act.
- 28 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007
31. The last contention that has been raised by the appellant/defendants is that the Will is surrounded by suspicious circumstances. The specific case of the plaintiff is that the plaintiff is the only daughter of the Testator. Even if there is no Will by the Testator, Philomina (Senior), under Section 37 of the Indian Succession Act, the plaintiff has inherited the properties of Philomina (Senior). Admittedly, Philomina (Senior) died on 12.03.1989. Ex.P1 Will has been executed on 05.08.1980. Even though defendants have claimed that late Philomina (Senior) has executed a Will dated 24.12.1987 in favour of the original defendant's daughter Gracy Rex, the same has not been produced before the court. It was submitted at the Bar that since the said Will has not found the light of the day, therefore, Ex.P1 Will is the last Will of late Philomina (Senior).
32. The contention of the defendant/appellants that the Testator was not in a sound and disposing state of mind is concerned, in fact, there is no such contention
- 29 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007 taken in the written statement and there is no evidence by the defendants that Philomina (Senior) was mentally or physically ill in 1980. In fact, she died nearly 8½ years after the execution of the Will. Therefore, there is no doubt, the Testator was in a sound and disposing state of mind.
33. Even otherwise, as per Section 63 of Indian Succession Act and Section 68 of the Evidence Act, the burden is on the plaintiff to prove the Will.
34. The plaintiff has examined herself as PW1 and has deposed that Testator has executed the Will - Ex.P1 in her favour and that was registered in the Sub-registrar Office, Chikmagalur and that was attested by Venkatesh Pai and Ravichandra. The Will was drafted by one Krishna Murthy. She has examined the scribe and also the attesting witnesses. The attesting witnesses Venkatesh Pai has been examined as PW4. He has deposed that he saw the Will in the office of the Sub-Registrar, Chikmagalur and he attested the Will. He has also identified LTM of the
- 30 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007 Testator on the Will and he has admitted that the Testator has affixed her LTM in his presence in the office of the Sub-Registrar. The plaintiff also examined another attestor PW5. He has admitted his signature in the Will and deposed that the Testator has not signed the Will in his presence. The scribe has been examined as PW2. He has deposed that the Testator has attested her LTM on Ex.P1 in his office. He has identified the LTM of the Testator and he has also admitted that the Testator has attested LTM in his presence. He stated that he was a document writer since last 30 years, that he drafted the Will-Ex.P-1 in 1980 as per the instructions of late Philomina, that he read over the contents of the Will to the executant and it was typed, that executant signed the will in his presence. He further stated that when Philomina put her LTM on Ex.P1, himself, Ravichandran and Venkatesh Pai were present. Therefore, it is very clear that the witnesses as well as scribe have identified the LTM of the Testator. Only there is some discrepancy in the evidence of the witnesses regarding the Testator affixing her signature on the Will in the office of
- 31 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007 the PW2. PW4 deposed that Philomina (senior) has affixed her LTM to the Will in the Sub-Registrar office. This small discrepancy does not go to the root of the matter. In fact, the plaintiff has proved the Will as required by law as per Section 68 of the Evidence Act. The Hon'ble Apex Court in the case of KAVITA KANWAR (supra) has observed in paragraphs 24.8 and 28 as follows:
"24.8. We need not multiply the references to all and other decisions cited at the Bar, which essentially proceed on the aforesaid principles while applying the same in the given set of facts and circumstances. Suffice would be to point out that in a recent decision in Civil Appeal No. 6076 of 2009:
Shivakumar & Ors. v. Sharanabasppa & Ors., decided on 24.04.2020, this Court, after traversing through the relevant decisions, has summarised the principles governing the adjudicatory process concerning proof of a Will as follows:-
'1. Ordinarily, a Will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon.
- 32 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007
2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.
3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will.
4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such
- 33 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007 eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
6. A circumstance is "suspicious" when it is not normal or is 'not normally expected in a normal situation or is not expected of a normal person'. As put by this Court, the suspicious features must be 'real, germane and valid' and not merely the 'fantasy of the doubting mind.'
7. As to whether any particular feature or a set of features qualify as "suspicious" would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.
8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn
- 34 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007 questions as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will?
9. In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will.' ..................
28. There is no doubt that any of the factors taken into account by the Trial Court and the High Court, by itself and standing alone, cannot operate against the validity of the propounded Will. That is to say that, the Will in question cannot be viewed with suspicion only because the appellant had played an active role in execution thereof though she is the major beneficiary; or only because the respondents were not included in the process of execution of the Will; or only because of unequal distribution of assets; or only because there is want of clarity about the construction to be carried out by the appellant; or only because one of the attesting witnesses being acquaintance of the appellant; or only because there is no evidence as to who drafted the printed part of the Will and the note for writing the opening and concluding
- 35 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007 passages by the testatrix in her own hand; or only because there is some discrepancy in the oral evidence led by the appellant; or only because of any other factor taken into account by the Courts or relied upon by the respondents. The relevant consideration would be about the quality and nature of each of these factors and then, the cumulative effect and impact of all of them upon making of the Will with free agency of the testatrix. In other words, an individual factor may not be decisive but, if after taking all the factors together, conscience of the Court is not satisfied that the Will in question truly represents the last wish and propositions of the testator, the Will cannot get the approval of the Court; and, other way round, if on a holistic view of the matter, the Court feels satisfied that the document propounded as Will indeed signifies the last free wish and desire of the testator and is duly executed in accordance with law, the Will shall not be disapproved merely for one doubtful circumstance here or another factor there."
35. Under the circumstances, considering the evidence of the parties and the materials available on record, I am of the opinion that the trial court is justified in holding issue No.1 in the affirmative. There is no error or
- 36 -
NC: 2023:KHC:20654 RFA No. 2007 of 2007 illegality in the judgment of the trial court. Hence, the appeal is dismissed.
Sd/-
JUDGE CM List No.: 1 Sl No.: 41