Madras High Court
Mr.G.Paras Singh Munoth vs Mrs.Gyanlatha on 6 June, 2018
Equivalent citations: AIRONLINE 2018 MAD 327
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.06.2018 C O R A M THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN T.O.S.No.12 of 2009 Mr.G.Paras Singh Munoth ... Plaintiff Vs. 1. Mrs.Gyanlatha 2. M/s. Sindu Buildings Equipments Limited # 31 (Old No. 16), First Floor, North Usman Road T.Nagar Chennai - 600 017. 3. Mr.S.Ganesh ... Defendants Prayer: This Testamentary Original Suit is filed under Sections 222 and 276 of the Indian Succession Act,1925 read with Order XXV Rule 4 of Original Side Rules, to prove the Certified Copy of the Will, dated 14.07.1986 of the deceased Mr.S.Parasmal Jain in a common form and to grant Probate thereof to have effect throughout Tamil Nadu, to the plaintiff. ***** For Plaintiff : Mr.Raja Kalifullah Senior Counsel for M/s. J.Jayendra Krishna For 1st Defendant : Mr.V.R.Thangavelu For DD 2 & 3 : Mr.T.V.Ramanujun Senior Counsel for Mr.M.S.Murugesan JUDGMENT
O.P.No. 434 of 2008 had been filed, seeking grant of probate under Sections 222 & 276 of the Indian Succession Act 1925, read with Order XXV Rule 4 of the Original Side Rules of the High Court, Madras, with respect to what was termed as the Last Will and Testament of S.Parasmal Jain, who died on 11.08.1986 at Guest Hospital, Chennai.
2. The petitioner, G.Paras Singh Munoth, was the brother-in-law of the Testator. He had been appointed as the Executor, in what was said to be the Will of S.Parasmal Jain and which was dated 14.07.1986 and which was registered as Document No. 91 of 1986 in the Office of the Sub Registrar, N.J.Hyderabad. The Testator was taking treatment as an inpatient in a hospital at Hyderabad at that particular point of time. The respondent in the Original Petition, Mrs. Gyanlatha, was the wife of S.Parasmal Jain, the Testator.
3. In the petition seeking grant of probate, it had been stated that S.Parasmal Jain had executed the Will in the presence of two witnesses and that the petitioner had been appointed as the Executor.
4. The petition seeking grant of probate was filed in the year 2007. S.Parasmal Jain died on 11.08.1986. The reason for the delay in filing the application seeking probate had not been explained in the petition.
5. The respondent Mrs.Gyanlatha objected to the grant of probate and consequently, O.P.No. 434 of 2008 was converted into a Testamentary and Original Suit and renumbered as T.O.S.No.12 of 2009.
6. Mrs.Gyanlatha had then filed her written statement. Necessity for the defendant Mrs.Gyanlatha to file the written statement and to challenge grant of probate was that under the Will, S.Parasmal Jain had granted only life interest to her with right to reside in the property which he bequeathed, namely, landed property at No.21, Race Course Road, Guindy, Chennai - 600 032 and that, after her, the property shall devolve on to the sons of his younger brother, who had predeceased him. The ratio of division of the property among the four sons was also given.
7. In the written statement, Mrs.Gyanlatha put up a new fact stating that a subsequent Will dated 07.08.1986 had been executed by S.Parasmal Jain. However, she admitted that S.Parasmal Jain had executed the Will dated 14.07.1986. She claimed that the said Will was revoked by execution of the subsequent Will on 07.08.1986. She further alleged mala fide on the part of the executor/plaintiff and claimed that he had joined hands with the beneficiaries, namely, the sons of the deceased brother of S.Parasmal Jain, with mutual aim to benefit from the estate, which was property at No.21, Race Course Road, Guindy, Chennai - 600 032. It had been stated that a notice was also issued by the said beneficiaries on 06.06.2007. It had been specifically stated that the Testator had handed over to the executor/plaintiff, the original Will dated 14.07.1986. However, he did not take any steps to obtain probate of the Will for 22 years. The reason attributed by her was that the executor knew that there was a subsequent Will dated 07.08.1986. Mrs.Gyanlatha further stated in her written statement that S.Parasmal Jain had been admitted in the Guest Hospital, Ponnamallee High Road, Chennai, after his return from Hyderabad. Both his kidneys had failed and he had to undergo Dialysis. He was intermittently having concisions owing to low blood pressure. She further claimed that considering her dissatisfaction at being granted only life interest in the property, S.Parasmal Jain had executed a subsequent Will on 07.08.1986 giving absolute right to her and further providing that after her life time, the property shall be owned and possessed by the beneficiaries, who had been named in the Will dated 14.07.1986, namely, the sons of his pre-deceased brother. S.Parasmal Jain died on 11.08.1986. She further stated additional facts pertaining to issues, which happened subsequently, namely the encumbrances created over the property. She stated that she was assisted in managing the property by one Rajendran, who, without her knowledge, mortgaged the property to Narayana Kannan in the year 2002. The mortgage was cancelled in the year 2004. Another mortgage was created by deposit of title deeds pursuant to loan being obtained from United Bank of India, Kodambakkam Branch. That mortgage was cancelled in the year 2007. She further stated that the building was very old and in a dilapidated condition. It started developing cracks. The repairs proved very costly. Rajendran then suggested that the property could be developed since it would also benefit the beneficiaries named in the Will. Rajendran brought one Subbiah and one Ganesh, said to be the Directors of M/s.Sindu Building Equipments Limited. They expressed intention to enter into a Joint Development Agreement.
8. Mrs. Gyanlatha further claimed that she was not aware of the terms and conditions of the Development Agreement. She was taken to the Registrar Office by Rajendran on 06.02.2009 and her thumb impression was taken in the Registrar Office in two separate papers. Mr.Rajendran informed her that they were for the registration of the Joint Development Agreement and a Power of Attorney. She was assured that she would be paid Rs.50,000/- every month till the project is completed. The building was demolished. She was paid Rs.50,000/- till April 2012. It was at that time that the Original Petition had been filed. She further stated that Rajendran had played a fraud by colluding with Subbiah of M/s. Sindhu Builders and with Ganesh and they had prepared fabricated two sale deeds for portions of the property. She never had intention to sell the property. She did not execute the sale deeds out of free Will. The sale deeds were not supported by consideration. Her signatures were forged. She further claimed that during the initial hearings in the case, her signatures were obtained in the counter affidavit, the contents of which was not explained to her. She only wanted to sell the property and never wanted to convey the property.
9. The plaintiff filed A.No. 4971 of 2010, seeking to implead M/s.Sindhu Building Equipments Limited and S.Ganesh as proposed second and third defendants, since the first defendant had stated that two sale deeds had been executed and registered in their respective favour in relation to two portions of the property. That application was challenged by Mrs. Gyanlatha by filing a counter. She claimed to be the absolute owner of the property in Door No. 21, Race Course Road, Guindy, Chennai - 600 032. She however stated that she had executed two sale deeds both dated 06.02.2009 and registered as Document Nos. 492 & 493 of 2009 both in the Office of the Sub Registrar, Velachery. She opposed impleading the proposed defendants as parties to the proceedings since she claimed that the issue in the probate proceedings related only to the proof and genuineness of the Will. However, they were impleaded as parties. Strangely, the plaintiff then gave them up. Probate was granted on 30.04.2014 in their absence. They thereafter filed an application to condone the delay of 2232 days in filing written statement and another application seeking permission to file written statement. These two applications came up for consideration before this Court and on 18.10.2016 both the applications were allowed. It must also be mentioned that prior to this, as already stated, the issue of grant of probate was considered by the Court on the basis of the evidence adduced by the plaintiff and the then sole defendant. Probate was granted by judgement dated 30.04.2014.
10. In view of the fact that the written statements filed by the second and third defendants were directed to be taken on file, the order dated 30.04.2014 granting probate was automatically revoked and the second and third defendants were also permitted to participate in the trial proceedings. The evidence in this case can thus be categorised into two distinct parts. The first part was the evidence on the side of the plaintiff and the cross examination on behalf of Mrs. Gyanlatha who was termed as the first defendant but the only contesting defendant. The second part was after the second and third defendants were permitted to participate in the trial proceedings and the cross examination of the witnesses for the plaintiff on their behalf. The evidence ran contrary to each other. The stand of the parties particularly the first defendant shifted.
11. In their written statement, the second and third defendants claimed that the plaintiff and the first defendant have colluded with each other and had obtained probate of the alleged Will dated 14.07.1986 by suppressing material facts and by gross misrepresentation. It had been stated that though the plaintiff had filed application to implead these defendants, the plaintiff gave up these defendants and the order of probate was obtained surreptitiously. Thereafter, these defendants had to file A.No. 8354 of 2014 to revoke the probate. That application was allowed on 11.01.2016. The Appeal filed in O.S.A.No. 47 of 2017 was also dismissed by Judgment dated 30.09.2017. Thereafter, these defendants were permitted to participate in the proceedings.
12. The second and third defendants stated that the probate had been sought with respect to the certified handwritten Xerox copy of the Will. No explanation had been given for the long delay of nearly 22 years in filing Application for grant of probate. It had been stated in the Will, that the original Will had been handed over to the executor. The executor, who had been in possession of the original Will, should have taken immediate steps to file petition seeking probate. However, he had not done so for nearly 22 years and acceptable reasons have not been given for the delay. It had been stated that very strangely, the executor filed an Application calling upon the first defendant to produce the original Will. She disclaimed possession of the original Will. The petition had been filed by producing certified copy. The defendants pointed out that in the petition, the executor had however stated that he came to know about the Will only recently.
13. These defendants claimed that the plaintiff and the first defendant had colluded with each other to defeat the valuable rights which had accrued to these defendants. The first defendant had sold two portions of property in her capacity as ClassI heir of S.Parasmal Jain. She had also stated that there is yet another Will dated 07.08.1986 but she had not produced the same. The first defendant had also stated that the original Will dated 14.07.1986 had been destroyed. These defendants further stated that S.Parasmal Jain was in hospital on account of failure of both the kidneys. The medical records however have not been produced. It has not been established that he was concious at the time of executing the Will. One of the attesting witness's name was given as Kishan Jain in the Will. However, the witness examined as PW-2 was Kishore Jain, a stranger. The other attesting witness was dead.
14. It had been further stated by the second and third defendants that the details surrounding the registration of the Will have not been given. It had not been stated who collected the original Will from the Sub Registrar Office. The first defendant had stated that the Will dated 14.07.1986 has been revoked. She had stated that there was a subsequent Will dated 07.08.1986 giving her absolute right over the property including right to alienate the property. These defendants also pointed out various other suspicious circumstances. It was not known whether the Will was typed or handwritten. The Testator had not prepared the Will. He was in hospital. It was prepared by someone else. The said person was not examined before the Court. The draft of the Will had not been produced. The original Will had not been produced. The original Will handed over to the executor had not been produced.
15. It had been further pointed out that according to the written statement of the first defendant, the Testator was not in a capacity to understand anything on 14.07.1986 since he was in hospital taking treatment. The medical records have not been produced. The Doctors have not been examined. It is not known whether the Will was registered in the hospital or in the Sub Registrar Office. The Officials of Sub Registrar Office had not been examined. It is not known who collected the original Will from the Sub Registrar Office. These defendants therefore claimed that the document produced claiming to be the Last Will of Mr.S.Parasmal Jain is not a genuine document and therefore, the Testamentary and Original Suit must be dismissed.
16. Since the plaintiff had originally given up the second and third defendants, the issues, which were framed for consideration on the basis of the written statement of the first defendant were:-
1) Whether the Will dated 14.07.1986 is the Last Will and Testament of deceased Mr.S.Parasmal Jain?;
2) Whether the will dated 14.07.1986 has been revoked by the Will dated 07.08.1986 of deceased Mr.S.Parasmal Jain?;
3) Whether the plaintiff is entitled to the probate of the Will and Testament dated 14.07.1986 in view of the subsequent Will dated 07.08.1986 of the deceased Mr.S.Parasmal Jain; and
4) Relief and costs.
17. The plaintiff and the first defendant were invited to adduce evidence. On the side of the plaintiff, the plaintiff Mr.G.Paras Singh was examined as PW-1. Kishore Jain said to be one of the attesting witness was examined as PW-2. Prakash Jain was examined as PW-3 to identify the signature of the other attesting witness, who had died. The defendant Mrs.Gyanlatha was examined as DW-1. The plaintiff filed Exs. P-1 to P-4. Ex.P-1 was the certified Xerox copy of the Will dated 14.07.1986. Ex.P-4 was the affidavit of attesting witness of Kishore Jain. No documents were produced or filed by PW-2, PW-3 and DW-1. On the basis of the evidence adduced, this Court granted probate by Judgement dated 30.04.2014. Thereafter, the grant was revoked on application filed by the second and third defendants. The order was upheld by the Division Bench also. The second and third defendants filed written statements and were permitted to cross examine the witnesses, who had already been examined.
18. The only additional issue which has to be determined by this Court is:-
1) Whether the plaintiff has proved the Will dated 14.07.1986 in manner known to law?
It must be mentioned that the Will said to be dated 07.08.1986 has not been produced and it would be a futile exercise to determine whether the Will dated 14.07.1986 had been revoked. Since the second and third defendants have alleged collusion between the plaintiff and the first defendant, the onus was on the plaintiff who was the executor named in the Will to prove the Will dated 14.07.1986 in a manner known to law.
19. This court heard the arguments advanced by Mr.Raja Kallifullah, learned Senior Counsel for the plaintiff and Mr.V.R.Thangavel, learned counsel for the first defendant and Mr.T.V.Ramanujun, learned Senior Counsel for the second and third defendants. The arguments were confined to the proof of Ex.P-1.
20. Mr.Raja Kallifullah, learned Senior Counsel for the plaintiff took the Court through the pleadings. According to him, the deceased S.Parasmal Jain was in hospital at Hyderabad when he executed the Will dated 14.07.1986. The Will was registered. He pointed out that the original of the Will could not be produced since it was in possession of the first defendant. Even prior to the numbering of the Original Petition, an application was made, calling upon the first defendant to produce the original Will and a citation was also issued. Orders were also passed by the Master.
21. The learned Senior Counsel further stated that the first defendant had sold two portions of the property by two separate registered sale deeds both dated 06.02.2009. The purchasers had also been impleaded as second and third defendants. Subsequently, since they were not directly involved with the issues to be determined for grant of probate, they were given up. They later filed an application under Section 263 of the Succession Act, to revoke the grant. That application was allowed. The witnesses were cross examined on their behalf. However, they did not adduce oral or documentary evidence.
22. The learned Senior Counsel pointed out that the main objections raised by the second and third defendants was that the original Will had not been produced and there was a long unexplained delay in filing the petition, seeking grant of probate and that the attesting witness, who was named in the Will, was actually a Kishen Jain and not PW-2 Kishore Jain.
23. The learned Senior Counsel stated that the identity of PW-2 Kishore Jain was not questioned during the cross examination. He further stated that probate can be granted by this Court under Section 237 of the Succession Act even in the absence of the original Will. He further challenged the purchase by the second and third defendants and stated that they were fraudulent transactions. No consideration were paid for the same. As a matter of fact, the first defendant had even denied execution of the sale deeds. The learned Senior Counsel finally claimed that the Will dated 14.07.1986 had been proved in manner known to law and consequently, asserted that probate must be granted and that the suit must be decreed.
24. Mr.V.R.Thangavel, learned counsel for the first defendant had the unpleasant task of both the challenging the grant of probate in the initial stage and later acceding to the grant of probate. He had first challenged the identity of PW-2 during cross examination.
25. According to the learned counsel, there was a second Will, dated 07.08.1986. The learned counsel also challenged the sale to the second and third defendants claiming that the first defendant had signed the documents under the impression that they were joint development agreement and power of attorney. The learned counsel did not take a clear stand with respect to the grant of probate or otherwise.
26. Mr.T.V.Ramanujun, learned Senior Counsel, who argued on behalf of the second and third defendants stated that the plaintiff and the first defendant were acting in collusion. They had created a false impression as if the first defendant was challenging grant of probate. However, the first defendant had sold two portions of the property for valuable consideration to the second and third defendants by two separate sale deeds. The learned Senior Counsel pointed out that the Original Will had not been produced. It was also not known who prepared the Will. The draft of the Will had not been produced. There was no evidence to show as to where it was typed. At the time of execution of the Will, the Testator, Mr.S.Parasmal Jain was in hospital at Hyderabad. He later died in another hospital in Chennai. The medical records have not been produced.
27. The learned Senior Counsel stated that since grant of probate is a Judgement in rem, suppression of material facts should be viewed seriously and as a deliberate act by the propounder. He stated that even the Division Bench in the appeal filed by the plaintiff had found that there was suppression. He was emphatic that in the absence of proper explanation for not producing the original Will, for not explaining the long delay in fixing the petition, probate cannot be granted. The learned Senior Counsel stated that the suit must be dismissed.
28. I have carefully considered the arguments advanced.
29. Additional Issue No.1:
The issues framed earlier have become redundant with the participation of the second and third defendants and in the absence of the production of the Will said to be dated 07.08.1986.
30. O.P.No. 434 of 2008 had been filed by G.Paras Singh Munoth under Sections 239 and 276 of the Indian Succession Act 1925 and the provisions of Order XXV Rule 4 of the Original Side Rules, seeking grant of probate with respect to the Last Will dated 14.07.1986 said to have been executed by S.Parasmal Jain. The petitioner G.Paras Singh Munoth had been named as the executor in the Will. He was the brother-in-law of the Testator S.Parasmal Jain. The respondent in the Original Petition was Mrs.Gyanlatha, the wife of S.Parasmal Jain. She also happened to be the sister of the petitioner G.Paras Singh Munoth. A perusal of the records reveal that the Testator S.Parasmal Jain had a younger brother Rishab Jain, who was said to have married the sister of the petitioner and respondent. It is thus seen that the entire lis surrounds a very close family. The main players are the Testator S.Parasmal Jain, his wife Mrs.Gyanlatha, her brother G.Paras Singh Munoth. The fringe players are the brother of the Testator, by name Rishab Jain and the sons Sunil, Anil, Rajesh and Dinesh of Rishab Jain. Rishabn Jain had predeceased S.Parasmal Jain.
31. A reading of the Will dated 14.07.1986 reveals that S.Parasmal Jain owned the property at No. 21, Race Course Road, Guindy, Chennai 600 032 known as Teen Murthy Estate. This property measured a total extent of 36,543 sq.ft., just more than 15 grounds.
32. S.Parasmal Jain died on 11.08.1986. The petition, seeking grant of probate was filed in the year 2007, after nearly 21 years. It was taken on file and numbered as O.P.No. 434 of 2008. This means that it came under actual consideration of this Court only after 22 years. Even though a probate petition cannot be rejected on the ground of limitation, still an obligation is placed on the executor to explain the delay in filing the petition.
33. In the present case, no explanation has been given. The executor claimed that the Original Will was with the first defendant Mrs.Gyanlatha, and that an application had been filed calling upon her to produce the original Will. That application was filed only in the year 2007. Again no explanation has been given as to why this initial step itself was taken only after 21 years.
34. Under Order XXV Rule 9 of the Original Side Rules, it has been specifically provided that if probate had been applied after a lapse of three years from the death of the deceased, the reason for the delay shall be explained in the Petition. Order XXV Rule 9 of the Original Side Rules is as follows:-
"R.9. In any case where probate or letters of administration is for first time applied for after the lapse of three years from the death of the deceased, the reason for the delay shall be explained in the petition."
35. In the Will, it had been specifically mentioned that two originals had been prepared. One was used for Registration purposes. The other had been handed over to the plaintiff. Consequently, a burden is cast on the plaintiff to produce the original Will. I hold that filing a Petition calling upon the defendant to produce the original Will was only a sham exercise. This conduct leads to a further conclusion that right from the inception of filing the petition, the plaintiff and the first defendant were in active collusion and the judicial proceedings seeking grant of probate was only a shadow boxing between the two. After all the plaintiff and the first defendant were brother and sister.
36. As a matter of fact, in the Will, it had been stated as follows:-
"Two original copies of this Will one of them being kept with the executor and the other being got registered, both the letters of Will shall be treated as original in the event of any dispute."
The plaintiff should have produced the original Will. This Court cannot place reliance on Ex.P-1 which is only a certified Xerox handwritten copy. The admissibility of the document itself is questionable.
37. The above extract from the Will shows that the original Will actually was with the plaintiff. However, in the Petition for grant of probate, the plaintiff had stated that the original Will was in the custody of the first defendant Mrs.Gyanlatha. Mrs.Gyanlatha on the other hand, in her written statement stated that the said Will, which is relied on by the plaintiff herein, had actually been revoked by a subsequent Will dated 07.08.1986. That Will has been produced. She also stated that the plaintiff was also aware about the execution of the second Will dated 07.08.1986. She stated that the plaintiff did not file any petition seeking probate of the Will dated 14.07.1986, only because he knew that it had been revoked. The plaintiff however denied execution of any Will dated 07.08.1986.
38. I hold that a very strong suspicion arises about the fate of the original Will, which has not been produced before the Court. The Testator had stated that of the two original copies, one original Will was handed over to the plaintiff. The plaintiff has stated that the original Will is however with the first defendant. The first defendant has in turn stated that the Will had itself had been revoked and a subsequent Will had been executed by the Testator. Even in her proof affidavit, the first defendant had very categorically stated that in view of the existence of the second Will dated 07.08.1986, this Court cannot grant probate of the document produced as Ex.P-1. She further stated that the Testator had handed over the Original Will dated 14.07.1986 to the plaintiff herein. I hold that the plaintiff had the burden to prove the Will in manner known to law and had not discharged such burden and proof is just not possible when the original is not produced.
39. The Testator had further stated that life interest alone in the property mentioned, namely, No.21, Race Course Road, Chennai, would devolve to the first defendant Mrs.Gyanlatha. She would not have any right to alienate or create any charge over the property. After her death, the property would further devolve and be inherited by the male sons Sunil, Anil, Rajesh and Dinesh, of his younger brother Rishab Jain. He appointed his own brother-in-law as executor of the Will. She was given the right to stay and enjoy rental income. It was specifically stated that she does not have any right to alienate or create charge over the property. The executor of the Will was her own brother. The beneficiaries after her death were her sister's sons, who also happened to be the brother's sons of the Testator. However as stated, the first defendant had sold by way of two sale deeds practically one half of the property to the second and third defendants. A perusal of the sale deeds in favour of the second and third defendants reveal that though in the Will now sought to be relied on by the executor, only life interest was given to the first defendant and a restriction was placed not to create any charge, the first defendant had been dealing with the property. She had created a mortgage in favour of one Narayana Kannan on 07.02.2002 by registered Document No. 419/2002 on the file of Sub registrar Velachery. She redeemed the mortgage by receipt dated 23.11.2004. She thereafter created another mortgage by deposit of title deeds in favour of United Bank of India on 24.11.2004. This was registered as Document No. 5475 of 2004 on the file of the Sub Registrar, Velachery. This was also redeemed by receipt dated 04.04.2007 and by registered Document No. 2096 of 2007 on the file of Sub Registrar, Velachery. When the first defendant was creating mortgages in favour of Narayana Kannan and in favour of the United Bank of India, the plaintiff, as executor, who had a duty cast upon him to protect the property and also to obtain probate of the Will of the Testator did not take any steps. The plaintiff cannot plead ignorance of Registered Documents creating encumbrances over the property. This is yet another reason to hold that the plaintiff and the first defendant were in collusion in the judicial proceedings.
40. Moreover, according to the Will, two copies in original were prepared. One was given to the plaintiff, who was named executor. He has not produced it. In his evidence, he stated that the original Will was actually handed over to the first defendant. The first defendant has not produced it. She claimed that it was revoked by a subsequent Will. Even the subsequent Will has not been produced.
41. Another original was handed over to the Sub Registrar for registration purposes. Only a certified handwritten Xerox copy has been produced, and marked as Ex.P-1. This is a copy of the Will without signatures. The Registration copy has not been produced. This means that the signature of the Testator and the signatures of the two attesting witnesses are not available before this Court for proof and verification. Under Section 63 of the Indian Succession Act, it has been specifically provided that an unprivileged Will shall be signed by the Testator and it should be attested by two or more witnesses. Section 63 of the Indian Succession Act is as follows:-
"63. Execution of unprivileged Wills:- Every Testator, not being a soldier employed in an expedition or engaged in actual warfare (or an airman so employed or engaged) or a mariner at sea, shall execute his Will according to the following rules:-
(a) The Testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the Testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the Testator sign or affix his mark to the Will or has been some other person sign the Will, in the presence and by the direction of the Testator, or has received from the Testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the Testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
42. This Section is mandatory. This provision is incorporated and given effect to by all the Courts to prevent a fraudulent Will from being given a stamp of approval by the Court. The plaintiff, who is said to the brother-in-law of the deceased has not produced any document with the signature of the Testator. He has very cleverly produced a certified Xerox written copy from the Registrar Office. Two originals of the Will were prepared and both have been deliberately not produced before this Court. I hold that they have been suppressed from the purview of the Court.
43. Under Section 114(g) of the Indian Evidence Act, if evidence, which has to be produced, is not produced, then the Court can presume that the evidence is not produced only because, if produced, it would be adverse to the person, who should produce it. Section 114(g) of the Indian Evidence Act is as follows:-
"114. Court may presume existence of certain facts. - The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it".
44. In this case, this Court draws a presumption that the Original Will has not been produced only because if it is produced, it would go against the stand of the plaintiff. A reading of Ex.P-1 shows that one of the attesting witness is Kishen Jain. But, PW-2, who has been examined as an attesting witness was called Kishore Jain.
45. It is the contention of the learned Senior Counsel for the plaintiff that serious objection has not been raised with respect to the identity of PW-2. I hold that a duty is cast on the plaintiff to see that even supposedly minor suspicious circumstances are explained to the satisfaction of the Court. The Court should be vigilant particularly when proof of a Will is the subject matter. Kishore Jain had been examined as PW2. He is also a relative of the plaintiff and the first defendant. But, during his cross examination, the first defendant had suggested that he did not sign as a witness in Ex.P-1. The answer to the suggestion put to him by the first defendant was as follows:-
"I deny the suggestion that I have not signed as witness in Ex.P-1. I deny the suggestion that I am giving false evidence for the sake of beneficiaries. I deny the suggestion that the Testator was not in good healthy condition and not entitled to get the Will probated. I deny the suggestion that I along with the executor and others are giving false evidence to benefit the beneficiaries."
46. This line of cross examination shows that even though the witness claimed that he was a relation, the first defendant herself questioned and challenged his identity and his bona fide. The second attesting witness had died. The evidence of PW3 cannot be the basis to hold that the Will had been proved. I hold that the Will has not been proved as expected by law. The nature of proof of a Will is given in Section 68 of the Indian Evidence Act. Section 68 of the Indian Evidence Act is as follows:-
"68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence."
The identity of PW2 is doubtful. The signature of the Testator is not available in Ex.P-1. I hold that Ex.P-1 has not been proved in manner known to law.
47. Section 68 of the Indian Evidence Act, 1872 specifically provides that at least one attesting witness must give positive evidence. There must be no suspicion over the said evidence. Here, one of the attesting witness is dead. This assumes significance because the identity of the other attesting witness is questionable and has been challenged. All these facts assume further significance since the original Will has not been produced before the Court and probate is sought for a certified Xerox written copy of the Will, in which, the signatures are not at all available.
48. It is also seen that the Will had been executed at a time when the Testator was in the hospital at Hyderabad. The Will is in English. It is not known whether it was typed or handwritten. Contradictory evidence has been given by the witnesses. PW-1 has been very evasive during his evidence. During cross examination on behalf of the second and third defendants, he stated as follows :-
Q. What is this document?
A. This is the Will executed by my brother-in-law S.Parasmal Jain at Nature Cure Hospital, Hyderabad. Q. Where from you got the Ex.P-1?
A. I got it from the Sub-Registrar's Office, Nizam Shahi Road Market Hyderabad.
Q. In which year you got it?
A. I do not remember. The Will was executed in 1986.
Q. See the stamp paper in Ex.P-1 and it bears the date 11.02.2008; is it correct?
A. Yes.
Q. Is it correct to state that it is also says that copy was prepared and examined on 11.02.2008? A. Yes.
49. It is thus seen that even though the Testator had given a original to the plaintiff, he had not produced the same and the copy, which is produced before the Court, had been applied for only in the year 2008. With respect to the original Will, he stated as follows:-
Q. Where is the original of Ex.P-1?
A. When the Will was executed my brother-in-law, he wanted it to be given to me, at that time my sister Gnanalatha was also there and I asked him give to my sister.
50. He then stated as follows with respect to the Original Will:-
Q. What was the date on which Parasmal Jain allegedly handed over the original Will to your sister? A. It was handed over in Nature Cure Hospital only, but I do not remember the date.
51. He also admitted as follows:-
Q. In Ex.P-1 towards the end it is written as follows, "two original copies of this Will, one of them being kept with the executor and other being got registered, both the letters of the Will shall be treated as original in the event of any dispute" what do you say? A. Right.
Q. Whether this portion finds place in the typed copy that you annexed with Ex.P1?
A. That is not here.
52. During cross examination he suddenly suffered selective memory loss.
Q. Have you produced any Medical records about the physical and mental health conditions of Parasmal Jain, who was admitted in Nature Cure Hospital, Hyderabad?
A. I do not remember Q. After 14.07.1986, when did you see original of Ex.P-1?
A. I do not remember.
53. He further developed an unpleaded story regarding the events at the time of preparation of the Will, but again suffered temporary mental loss:-
Q. According to you, who prepared the original of Ex.P-1?
A. My brother-in-law Parasmal Jain gave instructions, and on the instructions, advocate Mr.Premkumar Saigal prepared Ex.P-1. Q. In Ex.P-1, it is not stated that the Will was prepared by Advocate Mr.Premkumar Saigal and there is no such indication or recital in Ex.P-1? A. I do not know. Witness adds: Normally Wills are prepared by Advocates on instructions, my brother-in law gave instructions.
Q. On what date, the Advocate Mr.Premkumar Saigal drafted Ex.P-1? A. I do not remember Q. Whether any draft was prepared by the said Advocate? A. I do not remember Q. Whether the original of Ex.P-1 is handwritten or typed one? A. I do not remember. 54. When further questions were asked, he stated as follows:- Q. Did the Advocate prepare the draft? A. He might have prepared and shown it to Parasmal Jain. Q. Have you seen any such draft? A. I do not remember Q. The Will says two original copies of the Will are prepared. Where were they prepared? A. I do not remember. 55. He also stated as follows:- Q. The Will Ex.P-1 refers to the two original copies of this Will, were those two originals handwritten or typewritten or are computer printout? A. It is not handwritten. Whether it is typed computer print out, I do not know.
56. On the other hand, DW-1 during her cross examination with respect to the Will dated 14.07.1986 stated as follows:-
Q. Your husband was admitted in Nature Cure Hospital, Hyderabad on 14.07.1986?
A. Yes.
Q. On 14.07.1986 where were you?
A. I was with him in that hospital Q. You remember it now?
A. Yes.
Q. Have you stated so in your proof affidavit and your written statement that you were with your husband at Natural Cure Hospital, Hyderabad?
A. I do not remember.
Q. Do you know who prepared Ex.P-1?
A. My husband Q. Did your husband write it or type it?
A. My husband wrote it.
Q. How long was he in the hospital at Hyderabad?
A. 15 to 20 days.
Q. How long prior to 14.07.1986, he got admitted in the hospital at Hyderabad?
A. I do not remember.
57. With respect to the original, she stated as follows:-
Q. As per recitals in Ex.P-1 one original is said to have been given to your brother Paras Singh. A. What is stated there is correct.
Q. Paras Singh, your brother, has stated in the OP that he does not have the original. It is correct? A. He might have stated. I do not know.
58. She further stated as follows:-
Q. You have stated in paragraph-6 of your written statement that the original Will dated 14.07.1986 was given by your husband to your brother?
A. Yes. It is correct.
59. It is clear that the plaintiff and the first defendant have no intention of disclosing facts which are to their exclusive knowledge. They have come to Court on the basis of a document, which is not even admissible in evidence. The Sub Registrar has not been examined to prove registration or at least to establish the fact of registration. No Officer from the Sub Registrar Office has been called upon to produce the registration copy available in the Office of the Sub Registrar. The circumstances surrounding the registration has not been explained. I hold that the Will dated 14.07.1986 has not been proved in any manner at all.
60. Very conveniently after a period of 22 years, the plaintiff has brought before this Court a certified Xerox written copy. The plaintiff probably hoped that the Court would be led into believing that proof is only a matter of procedure. Proof of a Will is sacrosanct. The conscience of the Court must be satisfied before probate of a Will can be granted.
61. It is clear from a reading of Ex.P-1 that the name of the attesting witness has been given as Kishen Jain. The cross examination challenging his identity by the first defendant has been extracted above. PW-2, Kishore Jain who claimed to be the attesting witness tendered evidence. According to him, the Will was executed and signed by the deceased. In his cross examination, he stated as follows:-
Q. Did you see one original or two originals of Ex.P1?
A. I saw only one.
Q. At the time when you filed affidavit in Ex.P4 and your proof affidavit before this Hon'ble Court, did you see original of Ex.P1? A. I did not see.
62. He further stated :
Q. Where the original Ex.P-1 was prepared?
A. It was prepared at Madras. (The question again clarified by the Court). The witness adds: I do not know.
Q. Do you know whether the original of Ex.P1 was handwritten or type written or computer print out?
A. It was type written through typewriter.
Q. Who typed it?
A. I do not know.
Q. Where it was typed?
A. Parasmal Jain was not well and he was admitted in Nature Cure Hospital at Hyderabad. It was typed in Nature Cure Hospital, Hyderabad.
Q. Was any draft of Ex.P-1 prepared?
A. I do not know Q. I put it to you that you have not signed as a witness in the original of Ex.P-1.
A. I deny the suggestion.
Q. I put it to you that you are giving false evidence?
A. I deny the suggestion.
63. It is thus seen that the plaintiff has not clarified any of the doubts raised with respect to the Will dated 14.07.1986 said to have been executed by the Testator. It is not known whether it was typed or whether it was hand written. It is not known who typed it or who wrote it. The person who prepared it has not been examined before the Court. The draft has not been produced. The original has not been produced. Officials from the Sub Registrar have not been summoned to give evidence. Kishen jain, the witness who attested it, has not been examined. Some other person, who called himself as Kishore Jain and claimed to be a relative has been examined. The other witness is said to have died. The identity of Krishore Jain PW2, who claimed to be a relative of the plaintiff and also of the first defendant was questioned by the first defendant herself. All these aspects very clearly established that the document produced as Ex.P-1 is a document, which cannot be relied on by the Court to grant any right to the plaintiff.
64. In Benga Behera and Another Vs. Braja Kishore Nanda and Others reported in (2007) 9 SCC 728, the Hon'ble Supreme Court had held in Paragraph Nos. 29 to 32 as follows:-
"29. Another vital aspect of the matter cannot also be ignored. Respondent 1 in his evidence accepted that he had obtained the registered Will from the office of the Sub-Registrar upon presenting "the ticket" on 30.01.1982. After receipt of the Will, he had shown it to Sarajumani Dasi. He did not say how the Will was lost, particularly when he had not only shown the original Will to the testatrix but also had consulted a lawyer in relation thereto. No information was lodged about the missing of the document before any authority. Even the approximate point of time the Will was lost, was not stated. In his cross examination, he stated, "I cannot say where and how the original Will was lost."
30. Loss of the original Will was, thus, not satisfactorily proved.
31. A document upon which a title is based is required to be proved by primary evidence, and secondary evidence may be given under Section 65(c) of the Evidence Act. The said clause of Section 65 provides as under:
"65. (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time", Loss of the original, therefore, was required to be proved.
32. In a case of this nature, it was obligatory on the part of the first respondent to establish the loss of the original Will beyond all reasonable doubt. His testimony in that behalf remained uncorroborated."
65. Even in this case, the loss of the Original Will or reason for not producing the original Will had not been explained to the satisfaction of the Court.
66. In Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao and Others reported in (2006) 13 SCC 433, the Hon'ble Supreme Court had held as follows:-
"32. Section 63 of the Succession Act lays down the mode and manner of execution of an unprivileged Will. Section 68 of the Evidence Act postulates the mode and manner of proof of execution of document which is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the Court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.
33. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the Testator has signed the Will and that he had put his signature out of his own free Will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a Testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. "
In this case, the plaintiff has failed to prove the Will and has failed to remove the suspicious circumstances raised by the defendants. The plaintiff did not file any reply statement to the written statement of the second and third defendants.
67. Section 237 of the Indian Succession Act is as follows:-
"237. Probate of copy or draft of lost Will.- When a will has been lost or mislaid since the Testator's death, or has been destroyed by wrong or accident and not by any act of the Testator, and a copy or the draft of the Will has been preserved, probate may be granted of such copy or draft, limited until the original or a properly authenticated copy of it is produced."
68. The present Petition has not been field under Section 237 of the Indian Succession Act. Ex.P-1 is not an admissible copy. The said document cannot be relied on by this Court. The plaintiff was handed over possession of the original. He has not produced it. He has not given explanation why he has not produced it. He has put up a sham story that the original was with the first defendant. The first defendant denied that she had the original.
69. It is clear that the plaintiff and the first defendant are suppressing material evidence from the purview of the Court. This cannot be permitted. This is prevented. This Court is not prepared to accept any explanation by the plaintiff with respect to either the circumstances surrounding the disappearance of the original, the identity of PW-2 or the reason for not producing the original Will. In fact, explanations have not been given. All these factors lead to an irresistible conclusion that this Court cannot grant probate of the Will dated 14.07.1986. Consequently, with respect to the additional issue No.I framed, I hold that the Will has not been proved. The issue is answered against the plaintiff.
70. For the reasons stated above, I hold that the plaintiff is not entitled to probate of the Will and Testament dated 14.07.1986.
71. In the result, the suit is dismissed with costs of the second and third defendants.
vsg 06.06.2018
Index: Yes/No
Internet: Yes/No
Witness examined on the side of the plaintiff:-
PW1 - G.Paras Singh
PW2 - Kishore Jain
PW3 - Prakash Jain
Witness examined on the side of the defendants:-
- Nil -
Documents marked on the side of the plaintiff:-
Ex.P1 Original Will of Mr.S.Parasmal Jain dated 14/07/1986
Ex.P2 Original death certificate of Mr.S.Parasmal Jain
Ex.P3 Xerox copy of Legal heir certificate of Mr.S.Parasmal Jain dated 20.04.1988
Ex.P4 Affidavit of attesting witness Kishore Jain dated 19.08.2007
Documents marked on the side of the defendants:-
- Nil -
06.06.2018
vsg
Note to Office:-
Issue on 06.06.2018
Srcm
C.V.KARTHIKEYAN, J.
Vsg
Pre-delivery Judgment in
T.O.S.No.12 of 2009
06.06.2018