Madras High Court
C.Ananda Sundaraman vs C.Thirupurasundari on 2 July, 2008
Author: M.Chockalingam
Bench: M.Chockalingam, R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.07.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE R.SUBBIAH O.S.A.NO.400 OF 2001 C.Ananda Sundaraman .. Appellant Vs. C.Thirupurasundari .. Respondent This O.S.A. has been preferred under Clause 15 of Letters Patent read with Order XXXVI Rule 1 O.S. Rules against the judgment and decree made in T.O.S.No.6 of 1994, dated 15.12.1999. For Appellant : Mr.R.Thiagarajan For Respondent : Mr.T.Viswanatha Rao - - - - JUDGMENT
(The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the learned Single Judge of this Court made in T.O.S.No.6 of 1994, whereby Letters of Administration, on request of the respondent herein, was granted.
2.The respondent herein originally made an application and subsequently, it was converted to the suit. The allegations, with which the respondent has sought the relief can be stated thus:
The plaintiff in the suit and the defendant therein are the children of one G.Vasantha Devi. She died on 10.11.1992 at London, where she was staying on a temporary visit. She executed her last Will and testament at Madras on 06.10.1988 in the presence of two witnesses, namely D.Narasimhan and N.Gopalan. The testatrix left behind her except the plaintiff, her son C.Ananda Sundararaman, who is shown as defendant. She had not appointed any executor. There arose a necessity for initiating proceedings for getting Letters of Administration.
3.On appearance, the appellant/defendant contested the suit, inter-alia, stating that his mother Vasantha Devi had no right in the property and hence she could not execute the Will, since the properties belong to the joint family; that she was not in a sound and disposing state of mind, since her health during the relevant time was not in good condition; that she was always under the influence of the plaintiff; that the said Will, in respect of which Letters of Administration was sought for, was a fabricated document; that the execution of the Will was specifically denied along with the truth, validity and genuineness; that both the attesting witnesses are the persons obligatory of the plaintiff; that the plaintiff has obtained his signature in the blank papers by exercising fraud and had converted it as the consent affidavit and that actually, the defendant was the owner of the property, in question and hence the request of the plaintiff was to be rejected and the suit was to be dismissed.
4.On the above pleadings, 5 issues were framed. Both sides were given an opportunity to adduce oral and documentary evidence. After hearing the submissions made and also considering the materials placed, the learned Single Judge has decreed the suit, granting Letters of Administration, as asked for and hence this appeal has arisen at the instance of the defendant.
5.The points that arise for determination in this appeal are as follows:
a)Whether the Will, dated 06.10.1988 prepared by the testatrix is true and valid, as contended by the plaintiff or whether this is the fraudulent document, as contended by the appellant/defendant?
b)Whether the document has come into existence by exercising undue influence?
6.Advancing arguments, the learned counsel for the appellant, inter-alia, would submit that the property originally belonged to the father of both the parties; that he executed a settlement deed in the year 1969; that a reading of the settlement deed would clearly indicate that after the life time of Vasantha Devi, it should reach on his children; that a perusal of the Will would clearly indicate that not only the appellant/defendant, the only son, was disinherited, but also the grand children; that this is the strong suspicious circumstance; that it was the appellant, who was looking after his mother, since the plaintiff was employed in the Embassy at England; that without the knowledge of the appellant, the Will has been brought about; that the propounder has exercised undue influence and has also committed fraud on the testatrix; that the respondent is only beneficiary under the impugned document; that though the testatrix is the wife of an Advocate, she was not capable of writing her own Will; that the discrepancies found in the evidence of the witnesses, in particular the attesting witness and also P.W.3, A.Venkatesan, a practising Advocate, who is related to the family, would clearly indicate that the testament could not have come into existence as put forth by the respondent's side; that for the exclusion of the only son and the grand children, no reasons are adduced by the testatrix in the testament; and that it itself would indicative of the fact that the document was brought about by exercising fraud over the aged testatrix.
7.Added further the learned counsel that according to P.W.3, Advocate Venkatesan, she was consulting on the previous day and only on next day, the Will was written by her; that if to be so, all the details as to the family circumstances and about the children should have been made known and further, an advice would have come from the Advocate as to the necessity for telling the reasons for excluding the appellant and also the grand children, but no whisper is found; that regarding the preparation of the Will, one attesting witness, P.W.2, the Stenographer attached to the office of the Advocate was examined; that the evidence of the Advocate would clearly indicate that the Will could not have come into existence as put forth by them; that the testament is the holograph; that it cannot be said that it has come into existence as put forth by the respondent's side; that the case of the respondent is that the appellant was carrying on wayward life and under these circumstances, there arose a necessity for making bequest that too in favour of the respondent excluding all in the family; that in the absence of any evidence to that effect, the same should have been rejected by the learned Single Judge; that it is pertinent to point out that according to the evidence of P.W.3, the testatrix expressed her desire to create a Will in favour of her daughter, since she was not married; that on the contrary, from the evidence of P.W.1, the propounder, it would be quite clear that she was married and thus, the factum of marriage of the propounder was not made known and it would be quite clear that suppressing those facts, even though the propounder was in London, she has exercised influence over her mother to execute such a document and for that purpose, the witness, namely the Advocate, who was the close relative and also the other two attesting witnesses, who were depending upon her, were used.
8.Added further the learned counsel that it is needless to say that when suspicious circumstances are shrouded and attendant over the testament, a duty is cast upon the propounder to expel the same to the satisfaction of the Court; that in the instant case, suspicious circumstances were many, but no one circumstance was explained or expelled by the propounder; that apart from that there was evidence to show that the testatrix had a stroke in the year 1988, just prior to the alleged execution of the Will, dated 06.10.1988 and thus, she was also not in good, sound and disposing state of mind and that was also taken advantage by the propounder. All would go to show that the Will has not come into existence as put forth by the respondent and the Will also remained unproved as one expected in law. All these aspects of the matter have not been gone into by the learned Single Judge and hence the judgment of the learned Single Judge has got to be set aside and the suit has got to be dismissed, by allowing this appeal. In support of his contentions, the learned counsel for the appellant has relied on the judgment of the Supreme Court reported in 2007-2-L.W.870 (B.VENKATAMUNI VS. C.J.AYODHYA RAM SINGH AND OTHERS) and also the judgment of this Court reported in 1999 MLJ 634 (THANKAM ALIAS KARTHIYANI VS. C.MADHAVAN AND ANOTHER).
9.Heard the learned counsel for the respondent on the above contentions. In short, he would submit that the Will in question was the holograph one; that the propounder examined herself as P.W.1; that the one attesting witness and one Venkatesan, the practising Advocate, who was related to the family, were examined; that no motive is attributed to him; that apart from that, during the relevant period, the propounder was actually in England and she also came to India after a month; that she was informed about the Will; that it is true, the testatrix has excluded her son, the appellant herein and also the grand children; that merely because of exclusion of the natural heirs, it cannot be stated that the testament was shrouded with suspicious circumstances; that number of letters were addressed by the testatrix to the respondent/plaintiff while she was in London, which were marked as Exs.P.14, 15 and 16; and that all would go to show that the appellant was carrying on wayward life and the testatrix was thoroughly vexed.
10.The learned counsel for the respondent would further submit that from the evidence it would be quite clear that she was orthodox Brahmin lady and against her wish, he married a lady from a different community; that it is true, no reasons are stated in the testament as to why the appellant, the only son and also the grand children were excluded; that there is explanation given by P.W.3; that according to him, it was he, who advised her not to use harsh words in the testament, since it would reflect about the family affairs and hence, for all these reasons, it was not done so; that the inconsistencies brought forth by the learned counsel for the appellant in the evidence of the attesting witness and P.W.3 Venkatesan, the Advocate, were all minor discrepancies; that it should not be forgotten that the Will came to be executed in the year 1988 and they were all examined in Court after a period of 13 years and hence these minor discrepancies were bound to happen, but those minor discrepancies could never be taken as suspicious circumstances; that the appellant had no explanation to offer that on service of notice, he has actually filed the consent affidavit, which was marked as Ex.P.17 and the Advocate, who has actually attested the same, has also been examined as P.W.4. P.W.4 has categorically spoken to the fact that after understanding the contents found in the document, the same was signed by the appellant and it was attested by P.W.4; that the appellant came with the false allegations that his signature was obtained in the blank paper and thereafter, it was converted as consent affidavit; that having given the consent affidavit, now he has come forward with the false defence as stated above.
11.The learned counsel would further add that in order to call the Will that it was tainted with invalidating factors, it should be specifically pleaded and proved that the plaintiff had exercised undue influence over her mother; that not even undue influence is stated thereon and thus, the Will was actually proved and hence the learned Single Judge has considered the evidence proper and has come to the correct conclusion and hence the judgment of the learned Single Judge has got to be sustained. In support of his contention, he has relied on the following judgments of the Supreme Court:
1)AIR 1964 SC 529 (SHASHI KUMAR VS. SUBODH KUMAR BANERJEE).
2)1996-2-L.W. 353 (MRS. JOYCE PRIMROSE PRESTOR (VEE VAS) VS. MISS VERA MARIE VAS & ORS.)
3)2008-1-L.W. 255 (SAVITHRI & OTHERS VS. KARTHYAYANI AMMA & OTHERS)
12.The Court has paid its anxious consideration on the submissions made on either side and also looked into the materials available.
13.The respondent/plaintiff sought for Letters of Administration in respect of Ex.P.13, the Will, dated 06.10.1988, alleging that it was the last Will and testament of her mother. The defendant/appellant came out with the defence plea that the testatrix had no right over the property to make bequest; that the testatrix was not in good and disposing state of mind at the time of execution of the Will; that the document has been brought forth by exercising undue influence by the respondent/plaintiff on the testatrix and there are number of suspicious circumstances attendant over the document.
14.In order to establish the proper execution and attestation of the document, the propounder has examined herself as P.W.1 and she has produced the Will. The propounder has examined P.W.2, one of the attesting witnesses, while the other attesting witness could not have been examined due to the reasons adduced. P.W.3 was the practising Advocate, who was related to both the parties. At the outset, the Court has to point out that the Court of testamentary jurisdiction is not the court of suspicion, but the Court of conscience. If any circumstance is viewed with suspicion, it may look like a suspicious circumstance. In the instant case, the learned counsel for the appellant took the Court to the evidence of P.Ws.2 and 3 and pointed out the discrepancies found therein. But, after analysing the evidence, the court is of the considered opinion that those circumstance cannot be termed as suspicious circumstance at all. It is a well settled law that in a given case where the testament is brought forth for probate or Letters of Administration, the initial onus is on the propounder to prove the true execution and attestation of the document and if any suspicious circumstance is brought forth to the notice of the court by the objector, it is available for the propounder to expel those circumstances.
15.In the instant case, P.W.1 is the daughter of the testatrix and also the sister of the appellant/defendant. The testament in question was executed on 06.10.1988. During the relevant period, she was working in the Indian Embassy at London and it is also an admitted position. Hence during the relevant period, she was neither in India nor by the side of her mother testatrix to prevail over her. As per the evidence of D.W.1, the defendant, she came to India after a month and she came to know about the document only from her mother. It would be more appropriate to reproduce that part of evidence of the defendant, which reads as follows:
"Within 10 days after executing a Will on 6.10.1988 my mother left for London. It is true that my sister visited India in November 1988 and along with her mother left for London that might be about 25 days after the execution of the Will. At the time of executing the Will myself and my mother were in Madras, while my sister was in London. Ex.P.13 is my mother's Will. My mother's signature is found therein and it is a registered Will."
A reading of that part of the evidence in cross-examination of D.W.1, the defendant, would clearly indicate that he had a clear knowledge of the Will in question. Therefore, he could not be allowed to plead that he had no knowledge. During trial, Ex.P.17, the consent affidavit of the defendant was filed. Ex.P.17 is the consent affidavit given by the appellant/defendant. When the contents are looked into, it not only speaks about the knowledge of the appellant as to the testament, but also he expressed his consent therefor. The flimsy explanation, which is thoroughly unsustainable, was sought to be made in the averment in the written statement that playing fraud on him, the plaintiff had obtained signature in the blank papers and it was converted as the consent affidavit. This part of the averment made in the written statement was not spoken by the defendant in the box. However, the plaintiff has examined P.W.4, the practising Advocate, to the effect that it was he who attested Ex.P.17, the consent affidavit and after knowing the contents only, the affidavit was sworn in by the defendant and thus, it would be quite clear that originally, he has signed and has given the consent affidavit. For the reasons known to him, he made an attempt to withdraw the same, but in vain.
16.From the evidence of P.W.3, it would be quite clear that he was the practising Advocate and he was related to both the parties. A day prior to the date of execution of the testament, it was the testatrix who came to his Chamber and consulted the modalities for executing the Will. The next day, she came to his chamber and prepared the Will by handwriting, which is marked as Ex.P13. This part of the evidence stood fully corroborated by the evidence of P.W.2, the attesting witness, who happened to be the Stenographer of P.W.3 in his office. At this juncture, it is pertinent to point out that P.W.2, the only attesting witness examined, not only has spoken to the fact as to how discussion had taken place between P.W.3 and the testatrix on the previous day, but also as to how it was written by her on the next day. He would further add that the Will was written at about 12.45 hours in the chamber of P.W.3 and thereafter, the testatrix along with two attesting witnesses and P.W.3 went to the Sub Registrar's office, where the document was attested by them in her presence and thus, the execution and attestation have taken place and the same was also registered, during which they identified the testatrix. Even the scrutiny of the evidence does not whisper or point out any suspicious circumstance, which can be called as suspicious circumstance.
17.The strong circumstance, in the instant case, in favour of the propounder is that the testament is in holograph. At this juncture, the decision of the Apex Court reported in JT 1996 (4) SC 333 (MRS.JOYCE PRIMROSE PRESTOR VS. MISS VERA MARIE VAS) has got full application to the present facts of the case, where the Apex Court had an occasion to consider the presumption which has got to be drawn, which reads as follows:
"12.While the presumption in the case of ordinary Wills is as stated above, in the case of 'holograph Wills', the presumption is all the more a greater presumption. Ex.P-1 is a 'holograph Will'. It is one which is wholly in the hand writing of the Testator. The Calcutta High Court in Ajit Chandra Majumdar Vs. Akhil Chandra Majumdar (AIR 1960 Cal. 551 at P.552) stated about such a Will, thus:-
"The whole of this Will was written in the hand by the testator himself in English. The hand writing is clear and firm. The law makes a great presumption in favour of the genuineness of a holograph will or the very good reason that the mind of the Testator in physically writing out his own Will is more apparent in a holograph Will than where his signature alone appears to either a typed script or to a script written by somebody else" (Emphasis supplied).
"The writing of the Will and signature of the testator are admitted. There is also due and proper attestation in accordance with the relevant statutory provisions. No suspicious circumstance appears on the face of the document, Ex.P-1. The Will appears to be moderate and rational. Viewed from the above angle, there is a great presumption even bordering on actual proof of the due execution and attestation of the Will".
Thus, in the instant case, it was actually one holograph Will and hence the presumption is all the more a greater presumption, which should be drawn.
18.The next contention is that during the relevant period, she had stroke and she was not in good condition and also she was not in good and sound disposing state of mind and hence the Will could not have come into existence. This contention has got to be discountenanced for two reasons that according to the defendant, she had stroke in the year 1988, but the Will was executed on 6.10.1988 and even her health condition might be a reason for executing the Will. Apart from that admittedly, testatrix died on 10.11.1992 and that she had lived for nearly about 4 years after the execution of the Will. From the evidence of the defendant, as pointed out above, he had a clear knowledge of executing the Will and had he got any objection, he would have raised or murmured in these 4 years, but he had not done so. Thus, coupled with the fact that he has given consent affidavit, the objections now raised and also now put forth by way of defence plea were actually unfounded to his knowledge.
19.The next contention was that the testatrix was under undue influence of the plaintiff. As pointed out earlier, during the relevant time, the propounder/the plaintiff was actually in London and after a month, she has come over here. The mere statement what was found in the written statement is the word "influence". Therefore, the influence by itself cannot be taken as undue influence. The undue influence can be in law an invalidating factor. But in the instant case, even the undue influence is not actually pleaded. Further, for that undue influence, there is no evidence available. Under these circumstances, the contention that the plaintiff actually exercised undue influence over her mother, has got to be rejected.
20.All would go to show that the plaintiff has proved the Will by examining herself as P.W.1 and also one attesting witness, since the other attesting witness could not be secured for examination in Court and also an Advocate, who is related to their family and who was consulted during the relevant time. Thus, the plaintiff has proved the truth, genuineness, execution and attestation of the Will and hence it has got to be upheld. Under these circumstances, the circumstances brought to the notice of the court, though attractive and looked as suspicious circumstances, in the considered opinion of the Court, cannot be termed as suspicious circumstances and hence the learned Single Judge has marshalled the evidence proper, considered them and made a reasoned judgment, which in the opinion of the Court does not require for any interference. Accordingly, this O.S.A. is dismissed. No costs.
21.The learned counsel for the appellant would submit that the appellant is actually residing in the property in question along with 5 children and the wife and if proceedings are initiated to hand over the possession, he will be driven to street and under these circumstances, he would file an undertaking affidavit to vacate the property in question and to hand over the possession to the respondent within a period of one year and for filing the undertaking affidavit, he seeks one week time. Accordingly, one week time is granted for filing an undertaking affidavit as stated by him and as recorded above.
(M.C., J.) (R.P.S., J.) 02.07.2008 Index : Yes Internet : Yes vvk M.CHOCKALINGAM, J.
AND R.SUBBIAH, J.
vvk O.S.A.NO.400 OF 2001 02.07.2008