Madras High Court
J.S. Vasudevan vs R. Murari on 2 April, 2014
Author: K.K.Sasidharan
Bench: K.K. Sasidharan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.04.2014 CORAM: THE HONOURABLE MR.JUSTICE K.K. SASIDHARAN T.O.S.No.30 of 2008 J.S. Vasudevan ..Plaintiff -Vs.- 1. R. Murari 2. Mythili ..Defendants Prayer:- Petition filed under Sections 222 and 276 of the Indian Succession Act XXXIX of 1925 for grant of probate. For Plaintiff : Mr.N. Kathikeyan for Mr.S. Paneerselvam For Defendants : Mr.K. S. Madhavan ---- J U D G M E N T
This Testamentary Original Suit at the instance of the legatee of a Will dated 28 February 1991 executed by Smt. Rajam Sarangachari seeks a decree directing probate of the said Will.
The facts:
2. The plaintiff originally filed O.P.No.136 of 2008 to grant probate of the Will stated to have been executed by his mother Smt. Rajam Sarangachari. The plaintiff contended that Smt. Rajam Sarangachari executed her last will and testament on 28 February 1991 in the presence of two witnesses. The plaintiff was appointed as the executor of the Will. The Will contained certain stipulations with regard to the disposal of movable and immovable properties left by the testatrix. The house property bearing Old No.43-A, New No.54, Thambiah Street, West Mambalam, Chennai was allotted to the plaintiff and his brother Thiru J.S. Sridharan/first respondent in O.P.No.136/2008. Smt. Indhira Rajamani/second respondent in O.P.No.136 of 2008 is the daughter of the testatrix. Respondents 3 and 4 in O.P.No.136 of 2008/Defendants 1 and 2 in T.O.S.No.30 of 2008 are the children born to the pre-deceased daughter of the testatrix. The testatrix wanted the executor to sell the jewels after her death and to apportion the sale amount among the plaintiff, Thiru J.S. Sridharan, Smt. Indhira Rajamani and defendants 1 and 2 equally. The testatrix died on 24 January 2001. The plaintiff long thereafter filed Original Petition with a prayer to grant probate of the Will.
3. The respondents 3 and 4 in O.P.No.136 of 2008 (who are the defendants herein) contested the Will resulting in converting the Original Petition into one of Testamentary Original Suit.
Defence
4. The first defendant filed a written statement disputing the execution of the Will. According to the first defendant, the testatrix was not in a sound and disposing state of mind while executing the Will. The Original Petition for grant of probate was filed long after the period of limitation. According to the first defendant, the plaintiff fabricated the Will to grab the property from the legal representatives of Smt.Rajam Sarangachari, who died intestate on 24 January 2001.
Issues:
5. This Court taking into account the pleadings framed the following issues:
"(i) Whether the Will executed by the deceased Tmt. Rajam Sarangachari on 28 February 1991 is true, genuine and valid?
(ii) Whether the plaintiff is entitled for the grant of probate?
(iii) Whether the defendants have locus-standi to oppose the grant of probate in favour of the plaintiff?
(iv) To what other relief the plaintiff is entitled to?"
The Evidence:
6. The plaintiff was examined as P.W.1. The attesting witness Thiru R. Lakshmi Narayanan was examined as P.W.2. The first defendant was examined as D.W.1. Exs. P.1 to P.6 were marked on the side of the plaintiffs.
7. The plaintiff in his evidence deposed that even though the Will was executed on 28 February 1991 and his mother died on 24 January 2001, he found the Will only in 2006. According to P.W.1, taking into account the last wishes of the testatrix, jewels were sold and the proportionate amount at the rate of Rs.25,000/- was given to his sisters and the father of the defendants as per Exs.P.2, P.3 and P.4. P.W.1 denied the contention regarding fabrication of Will.
8. P.W.2 Thiru R. Lakshmi Narayanan in his evidence deposed that he took the notary with him to the house of the testatrix. He was known to the husband of the testatrix as both worked together in the very same establishment. The Advocate/Notary took instructions on the first day and Will was drafted subsequently. The Will was executed on 28 February 1991. The testatrix signed the Will at the first instance. Thereafter notary public signed. P.W.2 and the other witness Balu, who was working under the Notary signed thereafter. P.W.2 admitted that he was running a type-writing institute at Thandapani Street and that he was also a short-hand writer. P.W.2 denied the suggestion that the testatrix did not sign the Will in the presence of the notary or witnesses.
9. D.W.1 in his evidence deposed that he was not aware as to whether his father received the amount as per Ex.P.4. According to D.W.1 he was not in talking terms with his father. His mother died in the year 1981 and thereafter his father got re-married in 1983, when he was eight years old. D.W.1 disputed the genuineness of the Will in his evidence.
Summary of Submissions:
10. The learned counsel for the plaintiff contended that the plaintiff has examined the attesting witness, which is a mandatory requirement to prove the Will. According to the learned counsel, the attesting witness has given cogent evidence with regard to the due execution of Will. The fact that the notary public failed to put the date on the Will would not go to show that it was not signed on the day of execution. The learned counsel contended that the jewels belonging to the deceased were all sold by the plaintiff and the sale proceeds were distributed among the legal representatives pursuant to the recitals in the Will. It was further contended that putting the date by hand on the Will would not amount to material alteration requiring attestation.
11. The learned counsel for the defendants contended that the plaintiff failed to prove the due execution of Will in accordance with the provisions of Indian Succession Act. P.W.2 took the Advocate to the residence of the testatrix. The Advocate has not put the date on the Will. According to P.W.1, the amount payable to the beneficiaries were all given in 2001 itself. The plaintiff therefore must plead and prove as to why the Original Petition was filed after a period of seven years. The learned counsel contended that P.W.1 has given evidence that he came to know of the Will only in 2006. However the very same witness deposed that the amount payable to the other beneficiaries were given in 2001 itself. It was further contended that a close reading of the Will would clearly show that the date was not put originally even by the notary and it was substituted later. This would amount to material alteration which requires attestation. According to the learned counsel, Ex.P.1 Will was cooked up by the plaintiff long after the death of his mother.
Discussion:-
12. The plaintiff is the son of the testatrix. The defendants are the children of the pre-deceased daughter of the testatrix. The plaintiff has come up with a contention that his mother executed a Will on 28 February 1991. The immovable property left by the deceased was given to the plaintiff and his brother Thiru J.S. Sridharan. The testatrix has made a mention in the Will that her jewels should be sold after death and the proceeds should be distributed among her children and the children of pre-deceased daughter. The testatrix died on 24 January 2001.
13. The substantial issue that arises for consideration in this Testamentary Original Suit is whether the plaintiff proved the Will in accordance with Section 63(c) of the Indian Succession Act and Section 68 of the Indian Evidence Act.
Issue Nos.1 and 2 Resolution:
14. The last will and testament stated to have been executed by Smt.Rajam Sarangachari indicates that it was prepared by Thiru K. Rama Moorthy, Advocate and Notary Public. There is no endorsement in the said Will by the Advocate that it was actually prepared by him. The Advocate is a signatory to the Will. The date of execution of Will was originally kept blank. Subsequently it was filled up as 28 February 1991. There is no indication that the document was entered in the register kept by the Notary. P.W.2 signed the Will along with Thiru S. Balu, who is stated to be an employee under the Advocate, who drafted the Will. P.W.2 in his evidence deposed as to how the Will was prepared and later executed by the testatrix. P.W.2 signed the Will in green ink and in his evidence he has stated that he did not remember as to whose pen was used by him and as to why he signed in green ink.
15. The plaintiff marked Exs. P.2 to P.4 in support of his contention that he has already paid the amount due to the defendants, his brother and sister in accordance with the stipulation made by the testatrix. Ex.P.2 is the receipt issued by Mrs.Jayashree Sridharan, wife of Thiru J.S. Sridharan, who is none other than the son of the testatrix. It is to be mentioned here that as per the Will, amount should be given only to the sons and children of the deceased daughter. Mrs. Jayashree Sridharan, though is not a beneficiary under the Will executed the receipt. The receipt was typed in the letter pad of the plaintiff. Ex.P.3 is the receipt issued by Mrs. Indhira Rajamani, daughter of the testatrix in token of receipt of a sum of Rs.25,000/- due to her. Ex.P.4 is the receipt issued by the father of the defendants acknowledging receipt of a sum of Rs.25,000/- on behalf of the defendants. The receipts in question were all executed in the letter head of the plaintiff in 2001, and it contained a reference about the Will. However, the plaintiff in his evidence as P.W.1 had deposed that he came to know of the Will only in 2006. According to P.W.1 he did not know as to when his brother came to know about the Will. In case Ex.P.1 Will was the Will executed by the testatrix, and referred to in Exs.P.2 to P.4, nothing prevented the plaintiff from giving evidence that it was pursuant to the said Will, Rs.25,000/- each was paid to the beneficiaries named under the Will. Exs.P.2 to P.4 would indicate that there was a Will. However, there is no proof before this Court to substantiate that Ex.P.1 was the Will referred to in Exs.P.2 to P.4. The whole transaction is suspicious.
16. The notary who drafted the Will failed to indicate that it was actually drafted by him. The notary did not put the date. In fact, the Will itself does not contain any date and it was subsequently filled up with pen. The notary was not examined. According to P.W.1, he did not know as to who drafted the Will. However, P.W.2 deposed that it was drafted by Thiru K. Rama Moorthy, a notary, who also signed the Will. Since the Advocate did not mention anything about his capacity in which he signed the Will, P.W.2 deposed that he was not aware as to whether the notary signed as an attesting witness or identifying witness to the Will.
17. The testatrix died on 24 January 2001. The Original Petition for probate was filed only on 22 February 2008. The plaintiff with a view to explain the delay deposed in his evidence that he came to know of the Will only in 2006. However, the very same plaintiff produced Exs.P.2 to P.4 indicating payment of the amount to the beneficiaries as early as on 28 February 2001, which is within one month of the death of testatrix. However, when it comes to the execution of the Will, P.W.1 says that he came to know of the Will only in 2006. The plaintiff has no case that the Will was with his brother and he only made the payment as per Exs.P.2 to P.4. The fact remains that Exs.P.2 to P.4 were all typed in the letter head of the plaintiff. There are certain fundamental defects with regard to the execution of the Will. The plaintiff has not taken steps to clear the doubt with regard to the deficiencies and suspicious circumstances surrounding the execution of will.
18. It is true that D.W.1 has given evidence that only on going through the Will he found that the testatrix has not put the date. Similarly the Advocate also failed to put the date and this made him suspicious. Even if the evidence of D.W.1 is not clear as to how he has arrived at a conclusion that the Will was not genuine, still, the Court has got a duty to ascertain as to whether the Will was actually executed by the testatrix.
Settled Legal Principles:-
19. The Will has to be proved like any other document. In the case of Will, the testator is not alive and as such the burden is on the propounder of the Will to prove due execution. Section 63(c) of the Indian Succession Act lays down the requirement of a valid Will. The statute provides that the Will shall be attested by two or more witnesses each of whom has seen the testator signing or affixing his mark to the Will. There is a further requirement that the witnesses have to sign the Will in the presence of the testator. The Will must therefore be proved in the manner indicated under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act.
20. Since the testatrix is not before the Court and the document produced is claimed to be the instrument expressing the last wishes of the testatrix regarding disbursement of movable and immovable properties, the Court must sit in the arm chair of testatrix and must arrive at a finding as to whether the document before it was the one executed by the testatrix out of her free will. The Court must come to a definite conclusion with regard to the genuineness of the Will and that it is not fraught with any kind of suspicious circumstances.
The precedent:-
21. The Supreme Court in H. Venktachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443), indicated the legal principles regarding proof of a Will.
"(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 in 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.
22. The Supreme Court in Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687, indicated the following circumstances as suspicious in nature.:
"23. Suspicious circumstances like the following may be found to be surrounded in the execution of the will:
(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
(ii) The condition of the testators mind may be very feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
(iv) The dispositions may not appear to be the result of the testators free will and mind.
(v) The propounder takes a prominent part in the execution of the will.
(vi) The testator used to sign blank papers.
(vii) The will did not see the light of the day for long.
(viii) Incorrect recitals of essential facts.
23. The Supreme Court in K. Laxmanan v. Thekkayil Padmini, (2009) 1 SCC 354, held that even in the absence of suspicious circumstances surrounding the Will, the propounder must satisfy the conscience of the Court with regard to the due execution of Will.
"19. When there are suspicious circumstances regarding the execution of the will, the onus is also on the propounder to explain them to the satisfaction of the court and only when such responsibility is discharged, the court would accept the will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions of the testators mind, the dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testators mind was not free. In such a case, the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator."
24. The Supreme Court in Siddamurthy Jayarami Reddy v. Godi Jayarami Reddy, (2011) 5 SCC 65, indicated the duty of the Court in evaluating the genuineness of the Will.
The Supreme Court said:
"27. It is well settled that the court must put itself as far as possible in the position of a person making a will in order to collect the testators intention from his expressions; because upon that consideration must very much depend the effect to be given to the testators intention, when ascertained. The will must be read and construed as a whole to gather the intention of the testator and the endeavour of the court must be to give effect to each and every disposition. In ordinary circumstances, ordinary words must bear their ordinary construction and every disposition of the testator contained in the will should be given effect to as far as possible consistent with the testators desire."
25. It is true that the Court should lean against intestacy. However, that would not mean that the propounder is relieved of the obligation to prove the genuineness and due execution of the Will.
26. The plaintiff miserably failed to explain the suspicious circumstances to clear the doubt with regard to the genuineness of the will. The receipts marked in Exs.P.2 to P.4 though indicates the execution of Will, is not clear as to whether it was the very same Will (Ex.P.1), which was referred to in the said documents. Even though the plaintiff relied on Exs.P.2 to P.4 to the effect that payments were made immediately after the death of testatrix and in accordance with the condition of will, he has come up with a case that he has seen the Will for the first time only in 2006. The evidence of P.W.1 goes contrary to the recitals in Exs.P.2 to P.4. This is more on account of the fact that the notary failed to indicate as to whether he has entered the execution of this document in his register, kept under the Notaries Act and Rule. The plaintiff has not summoned the notary register maintained by the notary. The plaintiff has just said that the notary is no more. The Will was typed keeping the place earmarked for "date" blank. It was later filled up with pen. There is no evidence before this Court as to who filled up the date and with whose handwriting it was made. The plaintiff was expected to clear all these doubts. However, the plaintiff miserably failed in all aspects to prove the doubt with regard to due execution of Will. Therefore I am of the view that the plaintiff is not entitled to a decree on the basis of the Will.
27. The defendants are the legal representatives of the textratrix. Therefore, they are entitled to oppose the grant of probate.
28. The issue nos.1 and 2 and 4 are answered against the plaintiff. The issue No.3 is answered in favour of the defendants.
K.K.SASIDHARAN, J Tr
29. In the upshot, I dismiss the Testamentary Original Suit. No costs.
02.04.2014 Index: Yes Internet: Yes Tr/ Pre-delivery Judgment in T.O.S.No.30 of 2008