Madras High Court
D. Kausalya, Wife Of Late Durai 16, ... vs S. Sankaran, 16, Manicka Naicken ... on 14 February, 2002
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
ORDER S. Jagadeesan, J.
1. The defendant in T.O.S.4 Of 1990 is the appellant herein. The appeal is against the judgment and decree dated 25.9.1995 of the learned single Judge in T.O.S.No.4 of 1990 on the file of this court. The respondent herein filed O.P.No.539 of 1989 for the issue of probate in respect of the Will executed by one M.R. Singaravelu Nayagar. Since caveat was entered by the appellant, the said O.P was converted into a suit and numbered as T.O.S.No.4 of 1990.
2. The case of the respondent is that the testator Singaravelu Nayagar executed a Will on 24.9.1976 and registered as Document No.66 of 1986 on the file of the Sub Registrar, Purasavakkam. The testator had two daughters viz., Kausalya, the appellant herein and one Saraswathi. The respondent is the eldest son of the said Saraswathi. Apart from the respondent the said Saraswathi has two more sons viz., Gopi and Manohar. The testator appointed the respondent as executor under the suit Will and as such he is entitled to get the probate.
3. The appellant filed a written statement contending that the Will alleged to have been executed by Singaravelu Nayagar is a forged one and that the testator had executed a Will dated 4.11.1982, much earlier to the execution of the suit Will whereunder he bequeathed the property at No. 16, Manicka Naicken Street, Purasavakkam, Madras, giving equal share to both the daughters. The testator had also bequeathed a sum of Rs. 10,000 in favour of the appellant's first son Lakshmi narayanan and the respondent herein. Another sum of Rs.10,000 was directed to be realised from one T.R.Poonamchari with a direction that on realisation, the same should be shared equally between the said Lakshmi narayanan and the respondent. The testator also executed an authorisation letter directing the appellant to collect rents from the upstairs portion and the other daughter Saraswathi to collect the rents from the downstairs and that the respondent should be given the first floor. Since 1986 Singaravelu Nayagar was not keeping good health and he preferred to stay along with the appellant's son one Kannan in the upstairs portion. The respondent's mother Saraswathi along with the respondent and his brothers wanted to grab the house property exclusively for themselves and made false representation to the testator Singaravelu Nayagar in order to drive the appellant away from the property. The respondent's father treated the testator with cruelty and he assaulted the testator and caused bleeding injury. It is the wish of the testator that the property should be divided between his two daughters equally. In fact the appellant was not allowed to see her father, the testator till his death. After the death of the testator, the respondent took control of the room occupied by the testator along with his brothers. They destroyed several documents which include Wills executed by the testator. The Will now under dispute could not have been written by the testator as pleaded by the respondent and as such he is not entitled to get the probate.
4. Both the parties let in evidence oral as well as documentary. The learned single Judge, after considering the same by his judgment dated 25.9.1995 granted probate of the Will dated 24.9.1986 finding that the Will is a genuine one, executed by the testator Singaravelu Nayagar. Aggrieved by the same, the present appeal has been filed by the appellant.
5. The learned counsel for the appellant Mr. Subramaniya Iyer contended that the testator left behind him two daughters, the appellant herein and Saraswathi, the mother of the respondent. The appellant is having two sons and two daughters. The other daughter of the testator Saraswathi left behind her one daughter and three sons. The testator, under the disputed Will, had bequeathed the immovable property and other cash deposits to his three grand sons, the respondent herein and his brothers. One branch of the testator had been totally excluded from inheritance. The reason given by the testator to exclude one branch i.e., the appellant and her children is that the relationship with the appellant was not good and in view of the appellant's attitude towards the testator in his old age, he did not desire to provide any of the properties to the appellant herein. When the appellant was permitted to reside in the house along with the other heirs as well as the testator, definitely the testator could not have developed any hatred towards the appellant or her children. Even though the appellant pleaded that the disputed Will was obtained by the respondent by means of fraud and coercion and assuming that there is no evidence on this aspect, still the learned single Judge ought to have considered the fact that the testator had totally excluded one branch from inheritance. In such cases, obviously a valid reason is necessary to exclude the said branch. In the absence of any valid reason the court has to hold that the Will, giving undue priority to one branch alone, cannot be a genuine one. It is further contended that admittedly the testator was residing with the respondent and his mother and the Will having been executed by the testator at the age of 83, there cannot be any doubt that the testator had obliged the respondent's branch. In view of the above admitted and existed surrounding circumstances, the order of the learned single Judge cannot be sustained.
6. The learned counsel for the respondent, however, contended that the suit Will itself contains the reason for the exclusion of the appellant's branch from inheritance. When the testator had entertained that much of absession in his mind to exclude one branch from inheritance, it is not for the court to consider whether the exclusion of the said branch is reasonable or not. In order to appreciate the wish of the testator, one has to consider the recitals in the Will as it is and decide the wish of the testator. If the reason given by the testator to exclude the appellant's branch is taken into consideration along with the police complaint given by the testator against the appellant, then both would clearly establish that the testator had a valid reason to exclude the appellant's branch from inheritance. The learned single Judge has elaborately discussed the plea raised by the appellant regarding the fraud and coercion and found that there is absolutely no evidence in this regard and held against the appellant. Hence there is no ground warranting interference of this court in the judgment of the learned single Judge.
7. We carefully considered the above contentions of both the counsel. The following issues arise for consideration in this appeal:
(1) Whether the disputed Will was obtained by the respondent by means of fraud and coercion or otherwise?
(2) Whether the Will is bad due to the exclusion of one branch in toto? (3) To what relief the parties are entitled to?
8. Issue No.1: The testator Singaravelu Nayagar, the grand-father of the respondent, the father of the appellant executed the suit Will on 24.9.1986, bequeathing the only immovable property, the house bearing Old Door No.10, New Door No. 16, Manicka Naicken Street, Purasavakkam and cash deposits to his daughter Saraswathi. He also appointed the respondent, one of the sons of the said Saraswathi, as executor. The respondent had initiated this proceeding to get the Will probated. The validity of the Will is challenged by the appellant on the ground that her father, the testator was all along under the care of her sister the said Saraswathi. In the year 1982, the testator executed a Will bequeathing the properties to both his daughters, the appellant and Saraswathi, the mother of the respondent herein. Under the said Will in the year 1982, the testator also bequeathed a sum of Rs.10,000 in favour of the first son of the appellant and the respondent herein. When that be so, there is no reason for him to change his mind and execute the disputed Will, bequeathing the only immovable property and the cash deposits to the respondent's branch alone. Hence prima facie the respondent's branch had some undue influence on the testator to execute the disputed Will in favour of the respondent. The total exclusion of one branch in the Will from inheritance will lend support to the plea of the appellant.
9. Hence it is for us to consider whether the exclusion of one branch itself would lead to an inference that the Will is not a voluntary one?
10. It is worthwhile to extract the Will itself to appreciate the mind of the testator. The relevant portion reads as follows:
My elder daughter had been living away and recently I have provided accommodation in the 1st floor of my premises for a limited period and she had kept the portions locked and left some furniture without having any manner of right my elder daughter was only granted permission for a limited period and taking action to vacate her from the 1st floor portion. In view of her attitude towards M.R. Singaravelu me in my old age I have no desire to provide any of the properties either movable or immovable to my elder daughter Smt. Kousalya. My 2nd daughter Saraswathi and my grandsons 1. Mr. Sankaran, 2. S. Gopi and 3. S.Manohar, sons of M. Sundararajan are looking after me in my old age and I have a desire to provide my only immovable property bearing old Door No.10, New Door No.16, Manicka Nayagar Street, Purasavakkam, Madras to my grandsons Mr. S. Sankaran, 2. S. Gopal and 3. Manohar with all power of alienation. I hereby bequeath the house and ground bearing old Door No.10, New No.16, Manicka Nayagar Street, Purasalvakkam, Madras to my grandsons 1. Mr. S. Sankaran, 2. S. Gopi and 3. S. Manohar who shall take the property after my demise absolutely and with all powers of alienation in equal shares. I hereby bequeath all other moveables and other properties that may die possessed of to my above said grand sons. I have already made a nomination in my fixed deposit for payment of the same to Mr.S. Sankaran and Mr.S. Sankaran shall be entitled to encash the same after my demise. I hereby appoint Mr.S. Sankaran as the executor of this will."
11. From the above recitals in the Will, it is clear that the appellant was living away from her father, the testator and another sister. The appellant, being the elder daughter, has left the family after the marriage. As the testator was left alone, perhaps the second daughter opted to live with him to take care of him; especially when her husband is also a permanent employee in the City. Hence the second daughter and her husband continued to live with the testator and took care of him. The grandsons through the second daughter Saraswathi having lived with the testator, naturally they also lend support to their mother in taking care of the testator which is also mentioned in the Will itself. Hence the testator had thought of giving preference to the younger daughter Saraswathi, of course taking into consideration of his alleged strained relationship with the appellant herein.
12. The reason given by the testator to exclude the appellant is, taking into consideration of her attitude towards him, he has no desire to provide any property to the appellant. No details are available in the Will with regard to the relationship between the appellant and the testator.
13. When in 1982 indisputably a Will had been executed by the testator, giving equal share to both his daughters, definitely the relationship between the testator and the appellant could have been strained only subsequent to the execution of the earlier Will. When that be so, the reason for such strained relationship is essential to read the mind of the testator to exclude totally one branch from inheritance. The respondent as P.W.1 has stated in his evidence that the testator has given a complaint Ex.P3 against the appellant and further the appellant demanded money frequently from the testator and thereby he developed an aversion towards the appellant due to her harassment. The evidence of P.W.1 further reveals that in 1982, prior to the execution of the disputed Will, the appellant was permitted to stay in the only house along with the family of her sister and the testator. So till 1982 there was cordial relationship between the testator and the appellant herein as well as the other family members. Even in the evidence of P.W.1 he has not stated anything with regard to the strained relationship of the testator and the appellant. When in the Will it is stated by the testator that due to the attitude of the appellant towards him he is not willing to give any share in the property to her, there must be something on record to establish the strained relationship, which necessitated the testator to take a decision to deprive the appellant from her share. Equally in the cross-examination of the appellant as D.W.1 nothing was elicited from her regarding the strained relationship. Hence there is no material before the court to establish that the relationship between the testator and the appellant was strained to the extent of depriving the appellant from her share in the property.
14. Even if it is established that the Will was executed by the testator without any undue influence by the beneficiary or the legatee still it is for the court to consider whether the Will is a natural one or unnatural. The unnatural Will is one whereunder the undue preference is given to anyone of the legal heirs or the bequeathment is in favour of a third person.
15. Undoubtedly giving preference to one of the heirs and excluding the other from inheritance will be a suspicious circumstance which must be got over by the propounder. In order to appreciate this proposition, it is better to refer the law lay down by the Supreme Court.
16. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v. B.N. Thimmajamma, . The Court, speaking through Gajendragadkar, J., laid down in that case the following propositions:-
(1) Stated generally, 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 in such matters. As the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
(2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, 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.
(3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
(4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading, part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children, of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
(5) It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
(6) If a caveator alleges fraud, undue influence, coercion etc. 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 raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
17. The above principle of the Apex Court was reinforced in Jaswant Kaur v. Amrit Kaur, . In fact in the said case one of the heirs was excluded from the inheritance stating that "Gulab Kaur was leading her life in a way which would not bear mention here" and that therefore she did not deserve to get any amount. While considering this exclusion, the learned Judges of the Supreme Court in paragraphs 22 and 23 of the judgment have held as follows:
"The plaintiff Gulab Kaur has been wholly excluded as an heir of the testator for the supposed reason that she had brought disgrace to the Sibia family and that her behaviour was such as would not even bear a mention in the will. Not only that no evidence was led to show any misconduct on the part of Gulab Kaur but the evidence of Jaswant Kaur (RW.2) shows that for about 7 or 8 years prior to 1956 Gulab Kaur had lost her eyesight. One of the, issues in the suit namely, issue No.2, arising from the original pleadings was whether the plaintiff was disentitled to maintenance for the reason that she had deserted her husband. The judgment of the trial Court shows that the defendant led no evidence in support of that issue and that during the course of arguments, the defendant's counsel did not press the particular issue. The plaintiff on the other hand led evidence in rebuttal and accepting that evidence the trial Court rejected the contention that she had deserted her husband. It seems to us difficult to believe that a person in the position of Sardar Gobinder Singh who was possessed of a larger estate, would disinherit so many of his near relatives inluding his wife Gulab Kaur and shower his bounty on the grandson, to the exclusion of everyone else.
Quile a few other circumstances can be mentioned which raise a grave suspicion as regards the making of the will but the circumstances enumerated above are, in our opinion, sufficient to discard the will. The defendant in his evidence has offered no explanation of any of these circumstances. He has totally failed to discharge the heavy onus which lay on him of explaining the suspicious .circumstances surrounding the execution of the. will and _of establishing that the document which he propounded was, the last will and testament of his grand-father.Gpbinder Singh."
18. In a later judgment in V.S. Mane v. Ganeshkar, also the Apex Court held that the unfair and unjust disposal of property will be of suspicious circumstance requiring the propounder to explain the same in the following words:
"There is also a large body of case law about what are suspicious circumstances surrounding the execution of the Will which require the propounder to explain them to the satisfaction of the Court before the Will can be accepted as genuine. A Will has to be proved like any other document except for the fact that it has to be proved after the death of the testator. Hence the person executing the document is not there to give testimony. The propounder, in the absence of any suspicious circumstances surrounding the execution of the Will, is required to prove the testamentary capacity and the signature of the testator. Some of the suspicious circumstances of which the court has taken note are:
(1) The propounder taking a prominent part in the execution of a Will which confers substantial benefits on him; (2) Shaky signature (3) A feeble mind which is likely to be influenced; (4) Unfair and unjust disposal of property.
(See in this connection H. Venkatachala Iyengar v. B.N. Thimmajamma, , Indu Bala Bose v. Manindra Chandra Bose, and Guro (smt.) v. Atma Singh, . Suffice to say that no such circumstances are present here."
19. From the above principles, it is clear that unequal and unjust disposal will be a suspicious circumstance with regard to the genuineness of the Will and the burden is on the propoundef to offer an explanation and get over such suspicious circumstances, failing which the Will can be held to be a non-genuine one.
20. If we look at the facts of the present case, keeping the above principles in mind, in this case, admittedly the appellant was totally deprived of her share. Taking into consideration of the fact that the testator has got two daughters, it is for the court to consider whether there is any valid reason for the testator to exclude one of the heirs from succeeding to the property, As held by the Apex Court in the above referred judgments, it is for the respondent to explain. When we posed this question, we hastened to say that we are fully aware that the mere exclusion of one of the heirs cannot be a ground to hold that the Will is not genuine or the Will was executed under undue influence. However, it is the well laid principle that where the Will has been challenged on the ground that it is unnatural Will, because the testator preferred one or the other, the court of probate has to act with great caution. The mere proof of execution of the Will is sufficient to hold the genuineness of the same because of the existing suspicious circumstances of unnatural disposal of the property. The testament is the will of the testator and he has, under the law, a freedom to give his property to whomsoever he likes. When the court finds that there is an exempt or an unjust or an unnatural disposition, then the court can certainly take into consideration of the main question of finding out whether the testator was acting as a free agent and with a sound disposing or understanding mind. While considering this question the primary thing to be noted is the disposition in the Will and the circumstances both antecedent and subsequent to the Will must show that the testator deliberately choosed the propounder. If the bequest made in the Will appears to be unnatural, then the court has to scrutinise the evidence in support of the execution of the Will with greater degree of care than usual.
21. It is an admitted fact that till 1982 there was cordial relationship between all the parties and the appellant was also permitted to live in the house. There is absolutely no evidence to show that the appellant misbehaved with the testator either by forcing him to part with any money or demanding any assistance. P.W.I do not say anything in his chief-examination regarding the details as to the strained relationship of the testator and the appellant and equally there is no suggestion to that effect in the cross examination of D.W. 1, the appellant herein. From the evidence, it is clear that at the time of execution of the Will, the appellant was not in the house and she left. The respondent was also at Trichy and he did not aware anything in detail. In 1973 the appellant lost her husband and thereafter the testator might have lend some support to her and her children. The testator having lived with the respondent and his mother all along, perhaps the respondent and his mother wanted to take the property, pointing out the assistance rendered by "the testator to the appellant and her children. When at the time of execution of the Will the testator was aged 83 years old and totally under the control of the respondent's mother, definitely there will be some amount of influence on him with regard to the execution of the Will, giving preference to her alone by bequeathing the entire property to her.
22. If the entire evidence is looked into, the respondent did not offer any acceptable explanation for the exclusion of the appellant from inheriting the property. In the absence of any detail with regard to the conduct of the appellant which drove the testator to exclude the appellant along with the unequal disposition of the property by the testator makes it clear that there exists suspicious circumstances which were not properly explained and got over by the respondent. It is also worthwhile to refer that the appellant is a widow having lost her husband in 1973 and not in an affluent circumstance.
23. If all these circumstances are taken into consideration along with the fact that the recital in the Will regarding the adverse attitude of the appellant towards the testator having not been estab lished, we are of the view that the Will was executed under suspicious circumstances and as such the same cannot be held to be a valid one. Consequently the respondent is not entitled for the probate as an executor of the Will.
24. The learned single Judge has merely proceeded on the basis of the validity of the Will as to whether it was properly executed and whether the execution has been effectively established? Regarding the other aspects the learned single Judge did not consider on the assumption that the exclusion of one heir by the testator will not invalidate the Will, We are unable to agree with the learned single Judge on this aspect, in view of the above detailed discussion.
25. For the reasons stated above, the judgment of the learned single Judge is set aside and the appeal is allowed. No cost.