Madras High Court
K.Christo Jayakumar vs K.Sujayakumari on 2 March, 2011
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/03/2011 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A.(MD) NO.1493 OF 2003 K.Christo Jayakumar .. Appellant Versus 1.K.Sujayakumari 2.K.Christi Beaulakumari 3.K.Evangalin Nesakumari 4.Dr.K.Suresh Prabhakara Kumar 5.Prathavathi .. Respondents PRAYER Civil Miscellaneous Appeal filed under Section 384(1) of the Indian Succession Act, 1925 against the order dated 02.09.2002 passed in Pro.O.P.No.29/1999 by the Subordinate Judge, Padmanabhapuram. !For Appellant ... Mr.V.Raghavachari ^For Respondents ... Mr.M.Vallinayagam :JUDGMENT
The appellant herein is the respondent in the Pro.O.P.No.29/1999 preferred by the respondents herein, before the Sub-Court, Padmanabhapuram, under Section 276 of the Indian Succession Act, 1925. The reference to parties will be in accordance with their array in the Pro.O.P.No.29/1999.
2.The issue involved in this appeal is relating to the probate of the will executed by one Mr.Kumaradass, who died on on 14.12.1998. The fifth petitioner is the wife of Late Mr.Kumaradass. The petitioners 1 to 3 are the daughters and the fourth petitioner is the one of the sons of Mr.Kumaradass and the respondent is the another son of Mr.Kumaradass. Mr.Kumaradass was a retired Headmaster. He had executed a registered will dated 09.01.1997 bequeathing Schedule A to D properties in favour of the petitioners. Later, he executed a codicil dated 27.03.1998.
3.The petitioners filed Pro.O.P.No.29/1999 before the Sub-Court, Padmanabhapuram seeking for an order to issue probate of the will dated 09.01.1997 and the codicil dated 27.03.1998 executed by Mr.Kumaradass in their favour relating to the Schedule mentioned properties. According to the petitioners, both the will and the codicil were executed by Mr.Kumaradass, out of free will and volition and he was in sound and disposing state of mind, when he executed the will and codicil. They were duly executed and attested in the presence of the witnesses stated therein.
4.The respondent is the eldest son of Mr.Kumaradass and the respondent had been in inimical terms with his father and the details regarding the same are narrated in the will. The respondent was not given any benefits under the will. The respondent filed a counter statement resisting the claim. The respondent averred that the will was prepared by the fourth petitioner (another son of Mr.Kumaradass) and the husbands of the first and third petitioners. Both the will and codicil were executed against the will of the executor. The properties were not equally distributed to the beneficiaries. The respondent was totally disinherited. Both the will and codicil were prepared and registered fraudulently when Mr.Kumaradass was not in sound and disposing state of mind. The witnesses signed in both the will and codicil are neither neighbours nor relatives of Mr.Kumaradass and they are the close relatives of the wife of the fourth petitioner and the close relatives of the husband of the first petitioner.
5.During the trial, three witnesses were examined on the side of the petitioners. The fourth petitioner was examined as P.W.1. P.W.2 was the person who attested the will dated 09.01.1997. P.W.3 was the person who attested the codicil dated 27.03.1998. 16 documents were filed on the side of the petitioners and they were marked as Exs.P1 to P16. Ex.P1 is the will dated 09.01.1997. Ex.P2 is the codicil dated 27.03.1998. Ex.P3 is the death certificate of Mr.Kumaradass. Ex.P4 is the judgment dated 21.10.1985 passed in O.S.No.45/1984 by the District Munsif, Padmanabhapuram in the suit preferred by Mr.Kumaradass against the respondent and his wife claiming restoration of properties and also an order of injunction restraining the respondent and his wife from interfering with the peaceful possession of the properties. Ex.P5 is the judgment dated 28.11.1988 passed in A.S.No.11/1986. Ex.P6 is the document relating to the delivery of possession pursuant to the order dated 01.11.1993 passed in E.P.No.105/1993 in O.S.No.45/1984. Ex.P7 is the judgment dated 03.07.1990 passed in C.C.No.632/1988. Ex.P8 is the complaint dated 23.07.1993 given by Mr.Kumaradass against the respondent and his wife, to the Inspector of Police, Thuckalay complaining that they attempted to assault and inflict injuries on him and the fifth petitioner was kicked away by the respondent. Ex.P9 is the petition dated 11.09.1997 preferred under Section 451 Cr.P.C., in Crime No.864 of 1997 in C.M.P.No.3161/1997 by Mr.Kumaradass, before the Judicial Magistrate, Kuzhithurai, praying to hand over the custody of the timbers produced in the Court pending completion of the trial. Ex.P10 is the order dated 29.09.1997 passed in C.M.P.No.3161/1997 by the Judicial Magistrate, Kuzhithurai. Ex.P11 is the affidavit filed by Mr.Kumaradass in support of Crl.O.P.No.14336/1997 seeking to quash the proceedings in Crime No.864/1997 on the file of Sub-Inspector of Police, Kuzhithurai. Ex.P12 is the petition in Crl.O.P.No.14336/1997 dated 15.09.1997. Ex.P13 is the order dated 28.09.1997 passed in Crl.O.P.No.14336/1997 by this Court. Ex.P14 is the order dated 06.02.1998 passed in C.M.P.No.736/1998 by the Judicial Magistrate, Kuzhithurai, for which the petition was preferred by Mr.Kumaradass seeking return of documents filed before the Court. Ex.P15 is the judgment dated 04.06.1998 passed in O.S.No.185/1990 by the Principal District Munsif, Kuzhithurai in the suit preferred by Mr.Kumaradass against one Sellakan and Nelson seeking declaration and injunction. Ex.P16 is the decree dated 04.06.1998 passed in O.S.No.185/1990 by the Principal District Munsif, Kuzhithurai.
6.Before the Trial Court, the respondent got himself examined as R.W.1 and on his side, six documents marked as Exs.B1 to B6. Ex.R1 is the Memorandum dated 14.03.1981 of the Christian College, Martandam, Kanyakumari District, issued to the fourth petitioner. Ex.R2 is the registered document dated 28.11.1997 executed by the fifth petitioner in favour of the respondent. Ex.R3 is the treatment certificate dated 17.04.2001 issued to Mr.Kumaradass by the Regional Cancer Centre, Trivandrum stating that Mr.Kumaradass was under
treatment at the Centre from 20.10.1998 to 13.11.1998. Ex.R4 is the patient registration certificate dated 20.10.1998 of the Regional Cancer Centre, Trivandrum issued in respect of Mr.Kumaradass. Ex.R5 is the case summary record issued by the Regional Cancer Centre, Trivandrum stating that Mr.Kumaradass was admitted on 20.10.1998 and discharged on 13.11.1998. Ex.R6 is the Medical certificate issued by Dr.Moses stating that Mr.Kumaradass was admitted on 14.01.1997 and underwent surgery on 15.01.1997 and discharged on 22.01.1997 in Coimbatore Medical College and Hospital, Coimbatore.
7.The Trial Court granted probate as prayed for by an order dated 02.09.2002 in Pro.O.P.No.29/1999 in favour of the petitioners. It was held that the will and codicil were executed by Mr.Kumaradass with sound mind and the same was proved by examining the attesting witnesses. It was also held that the respondent failed to prove that Mr.Kumaradass was not in sound mind at the time of execution of the will and codicil. Once the genuineness of the will and codicil were proved, the unequal distribution of properties and disinheritance of the properties to the respondent are not relevant, particularly, when the will itself explains as to why the respondent was excluded. It was held that the respondent was inimical towards his father and that could have been the reason for excluding him. The Trial Court rejected the plea of the respondent that Mr.Kumaradass was not in sound state of mind due to Cancer, as Exs.P9 to P16 make it very clear that he was in sound mind up to 04.06.1998, the date of Ex.P16. This appeal is filed against the aforesaid order dated 02.09.2002 passed in Pro.O.P.No.29/1999 by the Subordinate Judge, Padmanabhapuram, granting probate in favour of the petitioners.
8.Heard the submissions made on either side.
9.The learned counsel for the respondent strenuously contended that since Mr.Kumaradass was suffering from Cancer as per Exs.B3 to B6, it should be presumed that he was not in good state of mind at the time of execution of the will and codicil. It was further submitted that the will and codicil were prepared by the fourth petitioner along with the husbands of the first and third petitioners respectively. It was further submitted that disinheritence is one of the circumstances pointing to suspicion. The learned counsel further contended that P.W.2 who attested the will is closely related to the fourth petitioner, as the fourth petitioner married the brother's daughter of P.W.2 . Further, P.W.3 is an employee of the Pharmacy run by the wife of the fourth petitioner. It was also alleged that both in Exs.A1 and A2, it was not stated that the will and codicil were read over and the executant agreed and signed the same.
10.On the other hand, the learned counsel for the petitioners submitted that Exs.P9 to P16 would make it clear that the Mr.Kumaradass was active and was in sound and disposing state of mind. He took me through those documents and explained as to how Mr.Kumaradass was active. Ex.A1 is the will executed on 09.01.1997 and Ex.A2 is the codicil executed on 27.03.1998. Though disinheritence is one of the circumstances pointing to suspicion, when the will itself explains the facts and reasons for the exclusion of the respondent, the respondent could have no grievance. The very purpose of the will was only to exclude the respondent. As per Indian Succession Act, two attesting witnesses were there at the time of execution of the will and one of the attesting witnesses was examined. Hence, the genuineness of the will and codicil were duly proved and the uneven distribution of assets is not a factor to ascertain the genuineness of the will and codicil, if the same are proved.
11.I have considered the submissions made on either side and perused the materials available on record.
12.It is clearly stated in the probate petition itself that the respondent was inimical towards his father Mr.Kumaradass. Ex.A1 - will contains in detail about the sour relationship between the respondent and his father and also the filing of suit by his father in O.S.No.45/1984 before the District Munsif Court, Padmanabhapuram, against the respondent and his wife seeking restoration of properties and also injunction restraining them from interfering with the peaceful possession of some other properties. The sour relationship between the respondent and his father was not seriously disputed. In those circumstances, there is nothing unnatural for Mr.Kumaradass to exclude the respondent in the will as beneficiary. As rightly contended by the learned counsel for the petitioners, the very purpose of the will is only to bequeath the properties as desired by Mr.Kumaradass and also to exclude some of the legal heirs. Further, as per Exs.A1 and A2, both the documents were prepared by the executant. Therefore, the allegation of the respondent that the matter was not read over to the executant, has no substance. Furthermore, P.W.2, the attesting witness of the will, categorically deposed that the testator executed the will in his presence and also in the presence of other attesting witnesse and the attesting witnesses also signed in the presence of the executor. Likewise, P.W.3, the attesting witness of the codicil categorically deposed that the executor signed the codicil in his presence and he attested the codicil along with another person, in the presence of the executor. The learned counsel for the respondent took exception for the deposition of P.W.2 as he is the close relative of the fourth petitioner, since the fourth petitioner married the daughter of the brother of P.W.2. Likewise, the objection as to P.W.3 was that he was employed in the Pharmacy of the wife of the fourth petitioner. In my view, there is no prohibition that the attesting witnesses should not be related to the beneficiaries of the will. As rightly contended by the learned counsel for the petitioners, one of the attesting witnesses is sufficient to prove the execution of the will as held by a Division Bench of this Court in Senthilkumar Vs. Dhandapani reported in 2004 (3) CTC 561.
13.I have gone through the evidences of P.W.2 and P.W.3 and the aforesaid judgment of this Court. I am of the view that P.W.2 and P.W.3, the attesting witnesses categorically deposed that the will and codicil were executed in their presence and they also attested the will and codicil in the presence of the executor. Once it is held that the will is duly executed, the uneven distribution of assets is not a factor to ascertain the genuineness of the will. It is the discretion of the executant of the will to decide on the distribution of the benefits under the will. Just because there is uneven distribution of assets, that could not be a reason to reject the will. In this regard, the learned counsel for the petitioners relied on the judgment of the Honourable Apex Court in S.Sundaresa Pai and others Vs. Mrs.Sumangala T.Pai and another reported in 2002 (3) L.W 9. Paras 5 and 6 of the said judgment are relevant and the extracted hereunder:
"5. The main reason which weighed with the High Court for its conclusion that the will was unnatural was uneven distribution of the assets by Indira Bai and also that the will did not give anything to the widowed daughter. According to the High Court this daughter was "perhaps more deserving". It also noticed that the will gave bulk of immovable properties to only one son. Another son was not given any immovable property. The third son was given one-half share in only one immovable property and the other half of it was given to Respondent 1. Indira Bai in the will also did not give anything to her husband. All movables as per the will were given to the three sons equally.
6. It is significant to note that only the plaintiff has questioned the will. All the defendants were supporting the will. The High Court also found that in view of the testimony of the attesting witness, the will had been formally proved. Under these circumstances, we fail to understand how the conclusion about the will being unnatural on the basis of uneven distribution of the assets by Indira Bai could be reached. The widowed daughter had not questioned the will. She rather supported it. Therefore, it could not be taken as a circumstance to show that the will was unnatural by observing that she was more deserving. It is a question which lies squarely within the pure discretion of the executant of the will. The finding that the "will is most unnatural"
cannot be sustained."
14.A Division Bench of this Court in M.S.P.Rajesh Vs. M.S.P.Raja reported in 1994 (I) MLJ 216 held that it is not for the Court to embark upon an enquiry as to whether the dispositions made in the will are fair and just. In this regard, para 37 of the said judgment is extracted hereunder:
"37.The other infirmities in the Will as pointed out by the learned Senior Counsel for the appellant are no doubt there. But it is possible to make comments of the nature against any Will and it cannot be said that these infirmities even cumulatively would render the execution of the Will an utter improbability very near to impossibility. Considering the preponderance of probabilities we have no doubt in our mind that Ex.B-16 is the last Will left by deceased Thangammal having been executed by her while in a sound disposing state of mind. We are of the view that the propounder has cleared any suspicion with satisfactory evidence. Our conscience is satisfied not only on execution but about its authenticity. Once a Will is proved to be true and it was executed by testator, it is not for the court to embark upon an enquiry whether the dispositions made therein are fair and just."
15.It was strenuously argued by the learned counsel for the respondent that the executant of the will and codicil was suffering from Cancer and therefore, he was not in sound mind at the time of execution of the will and codicil. On the other hand, the learned counsel for the petitioners submitted that Exs.P9 to P16 would make it very clear that Mr.Kumaradass was active even as on 04.06.1998, that is the day on which the decree passed in O.S.No.185/1990.
16.A perusal of Exs.P9 to P16 clearly shows that Mr.Kumaradass was active and pursued various litigation before various forums, including this Court and came to Chennai and signed an affidavit in Ex.A11 on 12.09.1997 to quash the criminal proceedings instituted against him. In fact, the Trial Court, based on Exs.P9 to P14, held that Mr.Kumaradass was in sound state of mind at the time of execution of will and codicil. In this regard, the relevant passage from the order of the trial Court is extracted hereunder:
"..... Vw;fdnt Twpa[s;sgo k.rh.M.9 Kjy; 14 tiua[s;s Mtz';fspy; ,Ue;J ,we;j nghd Fkhujh!; 1998 Mk; tUlk; tiu ey;y kdepiyapy; jhd; ,Ue;Js;shh; vd;gJk;/ mth; ePjpkd;w';fspy; M$uhfp rhl;rpak; mspj;Jk;/ tHf;Ffis elj;Jk; epiyapy; ,Ue;Js;shh; vd;gJ epUgpf;fg;gl;Ls;sjhy; mtUf;F Vw;gl;l g[w;W nehahy; mth; kdepiy ghjpf;fg;gl;L kaf;f epiyapy; ,Ue;jhh; vd;W TwtJ rpwpJk; Vw;Wf;bfhs;sj;jf;f tpjj;jpy; mikatpy;iy vd;gJ bjspthfpwJ..."
The Trial Court also held in page No.12 of its order as follows:
"..... Mdhy; k.rh.2/ 3 Mfpnahh;fs; j';fs; rhl;rpa';fspy; Fkhujh!; ifbaGj;J nghl;lJk; jh';fs; rhl;rp ifbaGj;J nghl;ljhft[k;/ mitfs; gjpt[ bra;ag;gl;lnghJ Fkhujhi! milahsk; fhl;l jh';fs; rhl;rp ifbaGj;Jf;fs; nghl;ljhft[k;............."
17.The Trial Court also held that the respondent failed to establish by letting in evidence that Mr.Kumaradass was not in sound mind at the time of execution of will and codicil. In this regard, the relevant passage from the order of the Trial Court is extracted hereunder:
"..... Mdhy; ,e;j fhy fl;lj;jpy; mth; kdepiy ghjpf;fg;gl;L kdnehahy; ghjpf;fg;gl;oUe;jjhfnth/ my;yJ jd;id Rw;wp elf;Fk; fhhpa';fs; Fwpj;J bjhpahj epiyapy; ,Ue;jjhfnth vjph;kDjhuh; jug;gpy; epUgpf;fg;gltpy;iy......."
18.When the respondent averred in the counter statement that fraud was committed in the execution of will and codicil when Mr.Kumaradass was not in good state of mind, the burden is lie on him to establish the same. But he failed to discharge his burden. In this regard, the relevant passage from the order of the Trial Court is extracted hereunder:
"..... kDjhuh;fs; jug;g[ fw;wwpe;j tHf;fwp"h; mtuJ thjj;jpy; V.I.Mh;.1999 fh;ehlfh gf;fk; 17/ V.I.Mh;.1999 bkl;uh!; gf;fk; 40/ V.I.Mh;.1999 bkl;uh!; gf;fk; 149 kw;Wk; V.I.Mh;.2001 bkl;uh!; gf;fk 355y; Mfpaitfspy; Twg;gl;Ls;s Kd; jPh;g;g[fis nkw;nfhs; fhl;o capiy vGjp itj;jth; ey;;y kdepiyapy; ,y;yhky; ,Ue;jjhf TwtJ mt;thW TWgth;jhd; epUgpf;f ntz;Lk; vd;W Twg;gl;L;s;sJ vd;Wk;/ mjd;go vjph;kDjhuh; jhd; capy; kw;Wk; nfhorpy; vGjpa njjpfspy; Fkhujh!; ey;y kdepiyapy; ,y;yhky; ,Ue;jjhf epUgpf;f ntz;Lk; vd;Wk;/ mt;thW epUgpf;f vjph;kDjhuh; jug;gpy; Vw;Wf; bfhs;sj;jf;f tpjj;jpy; rhl;rpa';fnsh rhd;whtd';fsnsh M$h; gLj;jg;glhjjhy; Fkhujh!; mg;nghJ ey;y kdepiyapy; ,y;iy vd;W TWtJ Vw;Wf;bfhs;sj;jf;f tpjj;jpy; mikatpy;iy vd;W thjpl;lhh;. kDjhuh;fs; jug;g[ fw;wwpe;j tHf;fwp"hpd; ,e;j thjk; Vw;Wf;bfhs;sj;jf;f tpjj;jpy; mike;Js;sjhf fUJfpnwd;......"
I am in entire agreement with the aforesaid findings of the Trial Court.
19.Considering the aforesaid facts and circumstances of the case, I am of the considered view that Mr.Kumaradass, the executant of the will and codicil was in sound state of mind at the time of execution of the will and codicil. In fact, the petitioners produced Exs.P9 to P16 to establish that he was in sound state of mind, while the respondent failed to prove his pleadings. It was also proved that the will and codicil were duly executed before the attesting witnesses.
20.For all the aforesaid reasons, this Civil Miscellaneous Appeal fails and the same is dismissed. No costs.
TK To The Subordinate Judge Padmanabhapuram.