Madras High Court
Thankam Alias Karthiyani vs C. Madhavan And Anr. on 29 April, 1999
Equivalent citations: (1999)2MLJ634
JUDGMENT A. Subbulakshmy, J.
1. Plaintiff is the appellant.
2. The case of the plaintiff is as follows:
The plaintiff filed the suit for grant of letters of administration. The plaintiff is the only sister of the deceased P.N. Meenaskhi. The said Meenakshi executed a Will on 25.3.1985 while she was taking treatment in the Guest Hospital, Madras. The plaintiff alleged that the testatrix of the Will was deserted by her husband, who is the first defendant, from 1965 till she died in 1985 and only the plaintiff was looking after her. The deceased Meenakshi was a patient and she also had her uterus removed and was taking treatment at Madras under the care of the plaintiff. The plaintiff only got the deceased admitted into the Guest Hospital. The deceased executed the Will in favour of the plaintiff as sole legatee. The deceased had no children and her husband also deserted her 20 years back. After the death of the said Meenakshi, the first defendant filed O.S. No. 350 of 1985 on the file of Vadakkanchery District Munsif claiming the property of the deceased and also sought to set aside the Will executed by the deceased bequeathing her properties to the plaintiff. The plaintiff was under the impression that the validity of the Will would be decided in the said suit but, when she went to Trichur and met her advocate in connection with that case, she was advised that since the Will is executed at Madras, the validity or otherwise of the said Will has to be proved before this Court and the amount of assets left behind by Meenakshi does not exceed Rs. 2.0,000. So, the plaintiff has come forward with the present suit seeking grant of letters of administration.
3. The first defendant filed written statement contending as follows:
The alleged Will purported to have been executed by Meenakshi is not genuine and is not a valid testamentary document. This defendant has not deserted or divorced the testatrix. This defendant has also not committed adultery with anybody as alleged in the Will. The Will has come into existence under suspicious circumstances. The Will has been prepared at the instance of the testatrix in the Hospital at room No. 305, Guest Hospital, Madras through her advocate who lives very near to her place and as such, it does not reflect the true disposing state of mind of the testatrix and as such it is not a valid document. The deceased Meenakshi was taking treatment and she was looked after by her sister but this defendant has not deserted her or abandoned her. The plaintiff has removed gold jewels roughly weighing about 25 sovereigns and has also hatched a conspiracy with the help of her well-wishers Dr. K. Kannan and C.N. Narayanan the attesting witnesses to the Will to knock off the entire estate. The said Meenakshi even though signed in English, she is not capable of reading and writing English. So, the preparation, execution and registration of the Will creates unambiguous doubts as to how it has come into existence without reference to this defendant, who has been contributing for her welfare, while Meenakshi was in Kerala and when she was undergoing treatment at Madras. Only the plaintiff has taken prominent part in the execution of the Will which confers absolute benefits on her. This defendant's wife Meenakshi had always love and affection for her aged husband and she never said anything ill of him during her lifetime and the recital in the alleged Will are contrary to her state of mind and the testatrix has not executed the Will out of her own free will or volition. The alleged Will has been prepared hurriedly in collusion with the plaintiff and two others, the attesting witnesses who have been promised consideration for preparing and in attesting the Will. The plaintiff has exerted pressure and has got the alleged Will prepared by her by obtaining signature of the testatrix in the Hospital when she was not in her full conscience as would reflect from the particulars this defendant obtained from the hospital. The Will is not a genuine document and the plaintiff is not entitled to probate of the same.
4. Learned single Judge dismissed the suit with costs.
5. The original side appeal is filed by the plaintiff as against the judgment and decree of the learned single Judge.
6. Points that arise for determination are:
(i) Whether the Will dated 25.3.1985 executed by Meenakshi is true and valid;
(ii) Whether the Will dated 25.3.1985 is vitiated and brought about under suspicious circumstances as contended by the first defendant;
(iii) Whether the plaintiff is entitled to letters of administration with the Will annexed.
7. Counsel for the appellant submitted that the Will Ex.P-1 was validly executed by the sister of the plaintiff Meenakshi in favour of the plaintiff on 25.3.1985 at Madras in the presence of the attestors and the attesting witnesses viz., P. Ws. 2 and 3 who have also spoken in their evidence with regard to the valid execution and attestation of that document and that Will is a true and valid document and so, the plaintiff is entitled to letters of administration.
8. Counsel for the respondents submitted that the Will Ex.P-1 is not a true and valid document and it was brought about under suspicious circumstances and the finding of the learned single Judge cannot be interfered with.
9. The learned single Judge, after elaborate discussion on various aspects in this case, came to the conclusion that the Will came into existence under suspicious circumstances and the plaintiff is not entitled to letters of administration. Thus, the learned single Judge has found that there is no valid execution and attestation of Ex.P-1.
10. P.W.1, the plaintiff who is the legatee under the Will speaks in her evidence that her deceased sister Meenakshi, the testatrix was not living with her husband for the past 20 years and she was suffering from cancer in her uterus and her mental condition was also alright and P.W.1 alone was looking after the testatrix and arranged for treatment to the testatrix. She further states that the testatrix was living with her alone and she never went back to Kerala. P. W. 1 states that the signature found in Ex.P-1 is her sister's signature and her sister executed Ex.P-1 and P.Ws.2 and 3 are the attesting witnesses to the Will and the advocate P.W.4 is the person who prepared the Will and signed that document. It is admitted by P. W. 1 that she was not present at the time of execution of the Will and when her sister Meenakshi gave instructions to the advocate. It is her evidence that she is not in any way concerned with the execution of the Will Ex.P-1 and it was executed by her sister whole heartedly bequeathing the properties in her favour. She further states that only at the night of the day of execution of the Will, her sister Meenakshi told her about the Will and she became aware of the Will only by then. Her further evidence is that she was told that the Registrar came to the Hospital for registering the Will. But, she does not know as to who helped to fix the date for registration and for preparing the Will, etc. The evidence of P.W. 1 does not disclose with regard to the arrangements made for execution and registration of the Will. Her evidence is that her sister gave Ex.P-1 to her, but, later, she states that she does not know as to when Ex.P-1 was given and who had taken delivery of it from the Sub-Registrar's office and she also does not know as to in which Sub-Registrar's office, that document was registered. On a perusal of the evidence of P.W. 1, it is seen that P.W. 1 was not aware as to how Ex.P-1 came into existence, and she never made arrangements for the due execution, etc. P.W. 1 states that P.W.4 and herself used to visit and see her sister at Guest Hospital and on one such occasion, her sister gave instructions to P.W.4 to prepare the Will and she was not present then and because the Will was drafted by P.W.4, she came to know about the Will. She further states that her sister brought the title deeds when she came to Madras for the second time and the documents were kept in the hospital in her box but her sister did not express her intention to execute the Will in favour of anyone, and only after she executed the Will, she came to know about the Will and she does not know as to who prepared, where it was typed and who were instrumental to that. She admits that her sister used to discuss with her the family matters but she did not discuss about the executing of the Will. She states that she does not know whether her sister requested P.W.3 to come to the Guest Hospital on the date of execution of the Will and she also never requested P.W.3 to come to the hospital on 25.3.1985, the date of execution of the Will. Even though her sister, the testatrix was under her care in the hospital and she alone was looking after and giving treatment to her sister the testatrix did not at all inform her about her intention to execute the Will in her favour. She is not able to speak anything with regard to the arrangements made for due execution of the Will. She simply states that her sister told her about the Will at the night of the day of execution of the Will and then only, she became aware of the same. P.W.1's specific evidence is that she alone was looking after the testatrix who was sick and she alone admitted her in the hospital and was giving treatment. Even under such circumstances, P.W. 1 is not able to speak with regard to the arrangements made for due execution of the document. Her evidence is that she is not aware of the Registrar's coming to the hospital for registering the Will, and who helped to fix the date for registration and about the delivery of Ex.P-1 from the Sub-Registrar's office. So, the evidence of P.W.1 itself leads to doubts with regard to the due execution of Ex.P-1.
11. P.Ws.2 and 3 are the attesting witnesses for the document Ex.P-1. P.W.2 is a Neurologist. He was working in the Guest Hospital at the time of execution of the Will. His evidence is that he knows Meenakshi who was admitted-in Guest Hospital in 1985 from the date of admission into the hospital and she was suffering from Bilateral Uretoric Obstructions and on three occasions, she was admitted in that hospital as inpatient. He states that on the third time, she was admitted on 21.3.1985 and was discharged on 3.4.1985 and at that time, she executed Ex.P-1. He further states that he can identify her signature in the Will and he was present at the time when the Will was executed by her and it was executed in Room No. 305, Guest Hospital and at that time, the patient, himself, the attendant, another witness who signed before him, the Registrar and his assistant were present and himself and P.W.3 attested the document and they signed before the Registrar identifying the signature of the testatrix. P.W.2's categorical evidence is that he saw Meenakshi signing the Will and Mr. Narayanan P.W.3 signing as an attestors and Meenakshi also saw him signing as an attestors and Mr. Narayanan P.W.3 saw him signing the Will as an attestor and Ex.P-1 was executed in the presence of both the attestors and both the attestors have signed in the presence of the testatrix and at the time of execution of the Will, Meenakshi was conscious. He further states that when he went for rounds in the hospital, Meenakshi requested him to bring the Registrar to the hospital and she also requested him to sign the Will as attestor and the Will was executed on 25.3.1985 at 5.00 p.m. and the lawyer also signed in the Will in his presence and the lawyer was explaining the contents of the Will to Meenakshi before it was executed. His further evidence is that he used to go for rounds in the hospital between 4.30 p.m. and 4.45 p.m. and at that time, the nurse came and told him the request of the patient Meenakshi to come to that room around 5.00 p.m. and he went there and at that time all the persons, lawyer, the attestors, the Sub-Registrar and another were present and he was the person who entered the room last and her lawyer was saying something about the contents of the Will to the patient and the Registrar enquired as to whether all the contents in the Will were correct and she was agreeable to the contents and signed that Will and the Registrar instructed her to make some corrections and at that time, the date was not there and it was filled by the Registrar and then the patient signed the Will. P.W.2 states that he went to the Room of the patient at the request of the patient through the nurse and there he saw due execution of the document and after the patient signed the Will, the first witness signed and then, he singed and they were asked identify the signature of the testatrix and accordingly they signed as identifying witnesses to the said Will. His evidence is that in page 5 of Ex.P-1 Will, there is a correction i.e. the month 'Feb' was struck off and in that place 'March' has been written and the said correction was made by the Registrar. P.W.2 states that that he does not know as to who prepared the Will and who brought it and he does not know as to whether the patient was keeping a box or a packet and he has not seen any box kept there. He also states that he had no occasion to see Meenakshi's elder sister staying in the hospital. His categorical evidence is that usually, they have a principle that all the doctors would discuss among themselves about the patients and the concerned consultant will talk to the patient or to the relatives about the patient's problems and progress and in principle, he does not discuss with any of the relatives of the patients about the patient's problems and in the case of Meenakshi he had not discussed with any of her relatives regarding her ailments and he was present when Dr. Jayachandran was treating the patient Meenakshi and on all the three occasions, he had no occasion to deal with the relatives of Meenakshi during her stay in the hospital. He specifically states that he never saw any other person in the room of Meenakshi other than a male attendant. So, P.W.2, is not able to speak with regard to the presence of the plaintiff in the room and that she was attending on the testatrix. His specific evidence is that only after he entered in that room, all the formalities began and not before that and the patient Meenakshi signed in Ex.P-1 and he also does not know as to who gave Ex.P-1 to Meenakshi and the lawyer told the contents of Ex.P. 1 to Meenakshi and then the Registrar asked as to whether she was willing to execute the Will and she answered that she was willing to execute the Will and at that time, none of the relatives of the testatrix was there. P.W.2 is not aware as to when the Will was prepared. He simply states that it was executed on 25.3.1985 around 5.00 p.m. and himself and another witness attested Ex.P-1.
12. Counsel for the appellant submitted that the evidence of P.W.2 has to be believed and he is not an interested witness and his attestation of the document amounts to valid attestation and much weight can be attached to P.W.2 and that establishes the genuineness of execution and attestation of Ex.P-1.
13. P.W.2 simply states that he was asked to sign in that document and after the testatrix signed Ex.P-1, himself and P.W.3 signed that document and he is not aware as to when and how the document was brought to the hospital and who had prepared that. The learned single Judge found that P.W.2 is an interested witness and he has gone to the extent of coming all the way from Trichy to sign the affidavit at Madras which shows that he is much interested. P.W.2 has given the affidavit signed by him at Madras which forms part of the records. The learned single Judge found that there is evidence that P.W.2 left the Guest Hospital and settled in Trichy where he has been practising as Doctor and from there he had come to Madras to sign that affidavit.
14. It is seen from the evidence of P.W.2 that he was working in the Guest Hospital in 1985 and the left for Trichy only in 1993 and as the affidavit was filed much earlier to that, it cannot be stated that he had come all the way from Trichy to Madras to sign the affidavit. So, it cannot be stated that P.W.2 was much interested and only for the purpose of filing the affidavit, he came to Madras. Of course, P.W.2 is a doctor and he is in no way connected with the testatrix or the plaintiff. But, his evidence is also not free from doubts.
15. The positive evidence of P.W.2 is that he has not filed any affidavit in this case. But, in fact, an affidavit has been filed by him. In his evidence, at one instance, he states that the last line in ink in paragraph 7 of Ex.P-1 was written by the advocate, whereas in the later part of his evidence, he states that it was written in pencil by the advocate P.W.4. He also states that he did not go through the document Ex.P-1 when he signed it. On a perusal of the evidence of P.W.2, taking into consideration certain inconsistencies, it has to be held that there is suspicion with regard to the credibility of that witness.
16. P.W.3 is the other attesting witness who speaks in his evidence that he was present when the Will Ex.P-1 was executed by Meenakshi at Room No. 305, Guest Hospital, Madras on 25.3.1985. He states that he saw Meenakshi signing the Will and P.W.2 has also signed as attesting witness of that Will, and Meenakshi saw him when he was attesting the Will and Kannan also saw him when he was attesting the Will. He further states that on 24.3.85, himself and his wife went to the Hospital to see Meenakshi and on that day, she told him that she was going to execute a Will and that he has to sign the Will as an attesting witness and before execution of the Will, the plaintiff did not approach him and requested him to attest the Will, and she was also not present when Meenakshi executed the Will. He further states that before executing the Will, it was read over and explained to the testatrix by the advocate P.W.4 and he also signed the Will. He further states that the Will was drafted by P.W.4 and at that time when the contents were explained to Meenakshi, she was in sound state of mind and after the contents were read over to her, the testatrix gave her consent and Meenakshi Ammal., himself, the servant boy of the testatrix, P.W.4, P.W.2, the Registrar and one of the staff members of the registrar's office were present when the Will was executed by Meenakshi and himself signed the Will as identifying witness.
17. P.W.3 is the neighbour of the plaintiff. He is from Kerala. He is a friend of the plaintiff's husband. He states that on 25.3.1985, the testatrix appeared to be hale and healthy, but, he does not know whether the testatrix instructed anyone else to be present in the hospital on 25.3.1985 and on 24.3.1985, when he visited the hospital, Meenakshi expressed her view and desire to execute a Will on 25.3.1985 and requested him to attest the Will and he does not know whether the plaintiff or the testatrix made arrangements for the execution of the Will and the testatrix did not request him to make arrangements to bring the Registrar to the hospital for execution of the Will and he also did not offer his services to bring the, Registrar to the hospital. The evidence of P.Ws. 1 to 3 does not satisfactorily establish with regard to the arrangements made for the due execution of that document and also for bringing the Sub-Registrar and the scribe. P.W.3 also states that he saw P.W.4 present in the hospital on 25.3.1985 for the first time at the time of execution and registration of the Will. He further states that on 25.3.1985, at about 4.30 p.m. when he went to the Guest Hospital, he saw the Will Ex.P-1 which was kept on the bed of Meenakshi and that it was prepared by P.W.4 but he does not know where the Will was prepared and who brought it, P.W.3 did not see any of the relatives of Meenakshi there and he did not enquire as to who gave the application to the Sub-Registrar for coming to the hospital. He simply states that at first the testatrix signed Ex.P-1 and then he signed and subsequently P.W.2 signed and thereafter P.W.4 signed with endorsement stating that it was drafted by him P.W.3 further states that he did not go through Ex.P-1 before the testatrix signed it, and the testatrix asked him to sign the Will as an attesting witness and the Registrar instructed the testatrix to sign first and thereafter he asked the attestator to sign the Will and then himself and P.W.2 signed. He categorically speaks in his evidence that the testatrix never discussed with regard to the Will and he also did not ask as to what are the properties bequeathed under that Will. The evidence of P.Ws.2 and 3 is to the effect that when they went to the hospital, Ex.P-1 was there and the testatrix was asked to sign and after that they signed as attestors to that document. When Ex.P-1 was available at the time when P.Ws.2 and 3 went there, the evidence of P.W.3 that Ex.P-1 was drafted by the lawyer is highly unbelievable. It is not known as to how he has received this information. The evidence of P.W.3 is that he is the neighbour of the plaintiff and is living in the same compound where the plaintiff is residing and he is the family friend of the plaintiff and is close to the plaintiff's husband. But, he had not got any instruction from the plaintiff and casually when he went to the hospital to see Meenakshi, he was asked to the attestator to Ex.P-1 by the testatrix and this also leads to suspicion. He admits that on 25.3.1985 was a working day and he had taken permission on that day to leave the office early and no record is available to prove the same. P.W.3's categorical evidence is that only when he went to the hospital to see the testatrix on the previous day, i.e., on 24.3.1985, he was asked to come next day for attesting the document. P.W.3's evidence cannot be said to be without suspicion. Even though the testimony of P.W.2 has to be taken as disinterested, his evidence is also to be rejected since it does not satisfactorily establish with regard to the due preparation, execution and attestation of that document.
18. P.W.4, the advocate, speaks in his evidence that the testatrix instructed him to prepare the Will. He states that Ex.P-1 was prepared under her instructions and that is the original Will and it was prepared in the third week of February, 1985 and her mental condition was perfectly alright. He further states that even though it was prepared in the month of February, 1985, it was executed only in the month of March, 1985 and the testatrix gave instructions for the preparation of the Will while she was taking treatment in the hospital. It is his evidence that an assistant of a Jewels Tailors Shop approached him for preparation of the Will for the relative of that shop owner and her name was Meenakshi and he told him that she was lying in the hospital and that man took him to the hospital and there, the testatrix gave him instructions and he took notes of the entire instructions given to him and that was in the third week of February, 1985. P.W.4 states that a week thereafter, he gave a draft Will prepared by him strictly in accordance with the instructions given by her. He further states that for the second time also, he went to the hospital to hand over the Will and he read out the Will, explained the contents of the Will and she accepted the same and she was fully satisfied and at that time also, she was mentally alright and thereafter, he was asked to be present at the time of registration also. He states that though his presence was not required, he went to the hospital at her request and in the evening on the date of execution of the Will, it was given to the Sub-Registrar for registration and the Registrar asked her about the nature of the document and the testatrix told that it was a Will prepared under her instructions bequeathing the property in favour of her sister, the plaintiff. So, the evidence of P.W.4 is that he took notes of the entire instructions given to him and he gave a draft Will prepared by him strictly in accordance with the instructions given by her. But, that draft Will is not produced and the notes taken by him with regard to the instructions given by the testatrix is also not produced to prove with regard to the factum of preparation of the draft Will and the instructions given by the testatrix. P.W.4 states that the Registrar asked him about the nature of the document and the document was once again explained to the testatrix and the testatrix accepted that it was perfectly in order. P.W.4 has spoken to the effect that he saw the testatrix signing the Will in all pages and the attestors also signing the Will. He further states that at page 5 of the Will, the month 'February' is struck out and the month 'March' was written and it was not written by him because he prepared it in the month of February and so, he put it as February and the date and month were not written by him and it is in the handwriting of the Registrar and the date was put on the day of execution. So, it is well evident from the evidence of P.W.4 that the Will was prepared in the month of February, 1985 itself. Even with regard to the preparation of the Will, in the month of February, there is no acceptable and cogent evidence. P.W.4 has also seen the plaintiff once or twice. He states that the plaintiff is the wife of Jewel Tailoring Shop owner and he has seen her once or twice but otherwise he has no connection with them and he used to give orders to that tailoring shop owner for stitching his pants and shirts. He categorically states that the plaintiff was not present when the testatrix gave instructions to him for drafting the Will and at the time of execution of the Will, also she was not present. So, it is seen from the evidence of P.W.4 that the testatrix was lying in the hospital and he was asked to meet her in the hospital and only an assistant of a tailoring shop owner approached him. But, he never states that he was deputed by Madhavan. He simply stated that a lady lying in a hospital wanted to prepare a draft Will by a lawyer and because he was a practising lawyer, he was asked to come to the hospital and take instructions from her because that assistant is known to him. As I have already stated, the draft Will is not filed to substantiate the contention that the testatrix gave instructions and only on that instructions, it was prepared, P.W.4 further states that when he entered into the room in the hospital, he saw the testatrix lying and some lady assistant was there and that is all he remembers. He further states that he did not take the permission from the visiting doctor or from the doctor who was in charge of the hospital and he also did not take any permission from the hospital authorities and he also did not consult about the physical and mental condition of the testatrix. He states that he was satisfied about the mental and physical condition of the testatrix because she gave instructions. So, without taking any permission from the hospital authorities, just on the call by the assistant of the tailoring shop owner, P.W.4 has gone to the hospital and prepared the Will in February, 1985 which came to be registered in March, 1985. These things throw considerable doubt with regard to the genuineness of Ex.P-1. P.W.4 states that he can slightly understand Malayalam and only the testatrix gave instructions to prepare the Will and he took notes carefully. He further states, that the testatrix gave instructions in a mixed language and she used Tamil, Malayalam and English. P.W.4 is also not able to give details with regard to schedules whether it is in Malayalam or in English. He states that he simply attached those schedules and the testatrix wanted to execute the Will in favour of her sister. He states that the testatrix herself gave the schedules and he simply attached those schedules. For number of questions put to him in the cross-examination, he simply states that he followed the instructions of the testatrix and when he handed over the draft Will, she did not make any correction in that. P.W.4 states that he signed the Will Ex.P-1 as scribe on the date of registration of the Will. On a perusal of the evidence of P.W.4, it is seen that the testatrix was not well versed in English.
19. The learned single Judge also found that here is a case where the party who gave instruction was not familiar with the language known to the lawyer, while the lawyer who received the instructions was not familiar with the language known to the testatrix and yet, the lawyer would say that he was able to understand what was conveyed to him and write out Will accordingly and this version of the lawyer appears to be rather an impossible story and it is not the evidence of the lawyer that he had the assistance of any person conversant with Malayalam language when he received the instructions or when he read out the contents to the testatrix and so, in such circumstances, this aspect of the matter strikes a discordant note and it makes one wonder whether such a thing could have happened at all.
20. The deceased was not known to P.W.4 before. Only at the instance of the assistant of the plaintiff's husband, P.W.4 had gone to the hospital. It is also really surprising to note that when the assistant working in the tailoring shop came and told him that there is a lady admitted in a hospital who wanted to consult him, P.W.4 went there and got instructions. This story of P.W.4 raises doubts with regard to the preparation of the draft and the original Will Ex.P-1. The learned single Judge also found that when an assistant or a servant working in a tailoring shop comes and tells him to go to a hospital to see a client and the lawyer claims that he obeyed the same and rushed out, it emphasises only the odd nature of the suit transaction. P.W.4 admits that he is residing in the same street where the plaintiff's husband is residing and he is close to the plaintiff's husband. P.W.4 is not able to speak with regard to the preparation of the Will.
21. On a perusal of the evidence of P. Ws. 1 to 4, it can be safely concluded that execution of Ex.P-1 was not under natural circumstances. P.Ws.2 and 3 were not able to speak as to how that document Ex.P-1 came into existence and how it came into the room in the hospital where the testatrix was taking treatment. The evidence of P.Ws. is also not satisfactory to prove as to how the testatrix was able to understand the contents of Ex.P-1 and how she gave instructions and how Ex.P-1 was prepared. P.W.4 states that Ex.P-1 was prepared in February, 1985, but it was registered in March, 1985 and the month and date is also corrected. In the preamble portion in the Will, month is typewritten as February, 1985 and it was later corrected as March, 1985 and the date is also written in ink as 25th. The evidence of P.Ws.2 to 4 is that it was written by the Sub-Registrar. But, the Sub-Registrar has not initiated for that correction in the document. For the correction, it must be initialed and with regard to the correction also, there must be mention in the bottom. It has not been initialed by the Sub-Registrar. This also throws doubt as to who made the correction. The evidence of P.W.4 that he received instructions from the testatrix only in the month of February, 1985 and that is why the month February, 1985 was mentioned initially in the Will and later it was changed as March, 1985 when it was registered is not an acceptable one and it also throws considerable doubt with regard to the genuineness of the Will. It is significant to note that in the Will Ex.P-1, last line is written in pencil as the Will takes effect after the lifetime of the testatrix. This constitutes strong doubt on the genuineness of the Will. It is highly improbable that in a Will which is a solemn document and which confers right on the legatee after the lifetime of the testatrix, anything can be written in pencil. Writing of these words in the last lines in pencil constitutes a strong piece of suspicious circumstances. There are also contradictions with regard to this pencil writing in Ex.P-1 in the evidence of P.Ws. The evidence of P.Ws.2 and 3 that the last lines in the Will were written by the Advocate whereas the evidence of P.W.4 is that at page 2 of the Will in para 7 the last lines were added by him since the Registrar wanted him to add those lines. He has further stated that the Registrar asked him about the nature of the document and wanted him to explain the nature of the document and then read out the contents once again to the testatrix and she has stated that it was perfectly alright. Writing of the last lines in pencil in para 7 of the Will leads to the conclusion that the Will had come under suspicious circumstances. P.W.4 says that it was not written in pencil, whereas the other witness P.W.3 says that it was written in pencil by P.W.4 and P.W.2 says that it was written in ink by P.W.4. P.W.3 also filed affidavits in which also with regard to pencil written sentences in Ex.P. 1 are typed in small letters in different typewriter. Ex.D-7 is the portion marked, in the affidavit filed by P.W.3 with regard to the typewritten sentence in small letters which states that it was written by Sub-Registrar. P.W.2 has stated in the first instance that he has not filed any affidavit and he came to know about the proceedings first when he received the summons. He has clearly admitted that the signature in the affidavit dated 7.10.1989 is his signature. The pencil written last sentence of Ex.P-1 found in the affidavit of P.W.3 is typed in different typewriters and it is added subsequently. This also constitutes strong suspicion. In the evidence P.W.4 says that this last sentence was written by him on the instructions of the Sub-Registrar. But, in the affidavit of P.W.3, it is stated that this pencil written sentence in Ex.P-1 was written by the Sub-Registrar. No valid explanation is given with regard to this addition in the affidavits. The learned single Judge found that it is clear from the affidavits that at the time of presenting the petition, this sentence was not there and the petition was presented on 30.10.1989 and subsequently, when the O.P. was converted into T.O.S. and it was returned on 2.11.1989 and on its re-presentation, this last sentence has been added to paragraph 4 of the affidavit of the attesting witnesses, but, instead of filing a separate affidavit or additional affidavit, it has been inserted in the affidavit already filed along with the O.P. on 30.10.1989, but even there, it is not attested either by the deponent or by the counsel before whom it was sworn to and on the other hand, it is stated that there is no correction. This circumstances probabilises the fact that the addition of the last sentence in pencil in the Will is a circumstance berthed in suspicion. On a perusal of the entire evidence and documents, it is very clear that these addition in the affidavit of P.W.3 were made subsequent to the return on 2.11.1985. Explanation given by P.W.4 that on the instructions of the Sub-Registrar, he added this last line and that too in pencil is not at all a convincing one. P.W.4 is a lawyer of 35 years standing and he is aware of the wordings to be mentioned in the document like a Will and this omission in the Will which is also one essential requirement of the Will, also throws considerable doubt. Even assuming that P.W.4 has added this last line on the instructions of the Sub-Registrar, his adding of that line in pencil in a Will is really a shocking one P. W.4, a long standing lawyer must know about the value of a document like Will and his action in choosing to write it in pencil leads only to suspicion with regard to the genuineness of the Will Ex.P-1. So, the evidence of P.W.4 is this aspect is not convincing and the oral evidence and the affidavits of P.Ws.2 and 3 throw considerable doubt with regard to the genuineness of the document. Further P.Ws.2 and 3 state that a male attendant was attending on the testatrix whereas P.W.4 states that a lady attendant was attending on the testatrix. The non-production of the draft Will prepared by P.W.4 on the instructions of the testatrix and how the original of Ex.P-1 was brought to the room in the hospital and where the testatrix was having all the documents have not at all been clearly proved so as to remove all the suspicion on the document Ex.P-1. It is also not clearly borne out by evidence that the draft Will was prepared only at the instructions of the testatrix by P.W.4 and it was approved by the testatrix and what was found in the draft is found in the original also and the contents of the Will have been clearly accepted by the testatrix have not been brought about by removing all the suspicion. Along with Ex.P-1 Will, the schedule of properties are attached. It is not explained properly as to show this schedule of properties came to the hands of the testatrix and by whom it was given to the testatrix. P.Ws.2 and 3 do not speak anything in their evidence with regard to the schedule in the Will. P.W.4 speaks in his evidence that the testatrix gave the entire schedule of properties and he simply attached it to the Will, For the question put to P.W.4 during cross-examination as to whether the schedule was in Malayalam or in English, P.W.4 has not answered and he has simply stated that he attached the schedule to the Will. It is really surprising to note how the testatrix who got admitted into the hospital for taking treatment was having readily the schedule with her at that time. The explanation given by P.W.4 with regard to the schedules is not convincing. Keeping of the schedules by the testatrix in the hospital and handing over of the same to P.W.4 also leads to doubt with regard to the schedules attached to the Will Ex.P-1 and so also the genuineness of the Will. Normally in a Will, schedules will be given at the bottom of it. But, here the schedules are attached to the Will as last sheet. Further, the testatrix has also signed once again after the signature of the witness. P.W.4, who drafted the Will, has not given any explanation for that. The learned single Judge found that the facts that such a declaration or statement whatever it is added makes it clear that the persons behind wanted to be more cautious and doubly careful as though by adding such further declaration or statement, the truth of the Will become more assured. P.Ws.2 and 3 have not spoken anything in their evidence that the testatrix affixed her signature in two places in the last sheet of the Will. They have stated that the testatrix had signed and then the witnesses, P.Ws.2 and 3 have signed. This aspect is also another circumstances which leads to suspicion in respect to the execution of the Will Ex.P-1. In the Will, after the schedule portion, the testatrix has signed and it is stated as she has also signed in additional sheets. No such additional sheet is found except the schedules. The schedules cannot at all be stated as additional sheets. P.W.4 has also not spoken with regard to the additional sheets. So, there is no valid explanation as to what the testatrix meant as additional sheets. This is another circumstance which leads to suspicion with regard to the execution of Ex.P-1. In Ex.P-1, the testatrix has stated that she had no issues and her husband Madhavan deserted and divorced her and he re-married and is living with his second wife at Kuttipuram. D.W.1 is the husband of the testatrix and he has spoken in his evidence that no divorce had taken place between himself and his wife Meenakshi and his relationship with his wife Meenakshi the testatrix was cordial and for three months, he gave treatment to his wife at Madras and has spent for medical expenses of his wife. He also denies with regard to his remarriage. He states that his wife was undergoing treatment at Madras and the plaintiff obtained her signatures in blank papers and the testatrix does not know to write and read English. He states that Ex.P-1 is a fabricated document to take away the property. In Ex.P-1 it is specifically stated that the testatrix is the wife of Cholakkil Madhavan, the first defendant; In other documents also, only the first defendant's name is mentioned as the husband of the testatrix. In Ex.P-2, the death extract also, the testatrix is described as wife of Madhavan. The letters written to the first defendant, Exs.D-1 to D-4 also prove that there was cordial relationship between the testatrix and her husband Madhavan. Exs.D-1 to D-4 letters are the correspondence between the first defendant and the plaintiff. These letters were written when the testatrix was sick. P.W.1 also admits in her evidence that her sister did not divorce her husband legally and according to the community custom. The plaintiff has written Ex.D-1 letter to the first defendant informing that her sister, the testatrix was not feeling well and was suffering from fever. In the other letters also, the plaintiff enquired whether he knew about the illness and the plaintiff also asked him to contact over telephone. P.W.1 also admits that Ex.D-3 letter was written in reply to the letter of the first defendant. In Ex.D-4 letter the plaintiff has written to the first defendant that she would be going over to the native place. The letter correspondence of P. W. 1 clearly goes to establish that there was cordial relationship between the plaintiff, the testatrix and her husband the first defendant. Further in those documents also, the testatrix is described as the wife of Madhavan. These things go to establish that there was no divorce between the testatrix and the first defendant and the plaintiff was having correspondence and contact with the first defendant. P.W. 1 also admits that the first defendant has executed a settlement deed in favour of his wife, the testatrix. These things clearly go to establish that there was cordial relationship between the testatrix and her husband and the alleged divorce mentioned in Ex.P-1 is not true. Further in the plaint also, it is nowhere stated that the first defendant divorced his wife and the divorce was according to their community custom. In the plaint, it is simply stated that the testatrix was deserted by her husband since 1965 till she died in 1985. If really the testatrix was deserted by her husband about twenty years back and was living with the plaintiff thereafter, there would not have been any necessity to writs Exs.D-1 to D-4. The letter correspondence Exs.D-1 to D-4 leaves no doubt in coming to the conclusion that there was cordial relationship between the testatrix and the first defendant. So, the recital in Ex.P-1 with regard to divorce fails and it could not have been mentioned on the instructions of the testatrix. This also goes to prove that the Will Ex.P-1 is not free from suspicion. It is settled law that if there are suspicious circumstances with regard to the due execution and attestation of a Will, the propounder is bound to remove all the suspicion. A Will to be genuine and valid must be free from suspicious circumstances and due execution and attestation of the Will ought to have been proved.
22. In Alok Kumar Aich v. Asoke Kumar Aich , it has been held that, The mode of proving of Will does not ordinarily differ from that of proving any other document except as to the special requirements of attestation prescribed in case of a Will by Section 68 of the Succession Act. It is also settled law that the onus proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. The propounder is called upon to show by satisfactory evidence that the Will was signed by the testator and the testator was in sound and disposing of state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own will.
The Supreme Court has held in H. Venkatachala v. B.N. Thimmajamma , that, The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Thus the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual, test of the satisfaction of the prudent mind in such matters.
The Supreme Court has laid down in Indu Bala v. Manindra Chandra, that, The mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's 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 testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations. Any and every circumstance is not a "suspicious' circumstance, A circumstance would be 'suspicious' when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.
The Supreme Court has laid down in Shashi Kumar v. Subodh Kumar , that, The mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder, to explain them to the satisfaction of the court before the court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's 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 testator's 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. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations.
In Ramachandra v. Champabai , it has been held that, In all cases in which a Will is prepared under circumstances which arouse the suspicion of the court that it does not express the mind of the testator, or that it was prepared under highly suspicious circumstances, it is for the propounder of the Will to remove that suspicion.
It has been held in Jaswant Kaur v. Amrit Kaur that, In cases where the execution of a Will is surrounded in suspicion, its proof ceases to be a simple Us between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the court that the Will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will.
We have already discussed in the previous paragraphs the evidence let in this case with regard to the execution and attestation and the evidence goes to establish that Ex.P-1 came under suspicious circumstances. The court is bound to take into consideration the evidence of the witnesses and if the evidence adduced is not satisfactory and sufficient to prove valid execution and attestation of the Will and if the Will was prepared under vitiating circumstances, the propounder must discharge his burden of proving the fact of valid execution and attestation. It is significant to note that the plaintiff has sold a major portion of the property covered under Ex.P-1 to her son-in-law, the second defendant so hurriedly. If the various circumstances involved in this case viz., false narration of the fact of divorce, striking of month and date in Ex.P-1 without initial of the person who struck them out, attachment of the schedule to the Will, signature of the testatrix in two places in page 5 of the Will, mentioning of additional sheets duly signed by the testatrix and the non-availability of additional sheets in the Will, writing of the last two lines in pencil in Ex.P-1 which is a solemn document and the incorporation of wording with regard to the last sentence, in the affidavits of P.Ws.2 and 3 the attesting witnesses and the contradictory version of P.Ws.2 and 4, the non-exanimation of the person who brought P.W.4 to the hospital for preparing the Will and the non-production of the draft Will are cumulatively taken into consideration, we do not think that the evidence of P. Ws. could be accepted in this case.
23. For valid execution and attestation, if we apply the principles laid down by the Apex Court in various decisions to the factual matrix involved in this case, we have no hesitation to hold that the Will Ex.P-1 was brought under suspicious circumstances.
24. Counsel for the appellant submitted that the Registrar came to the hospital and registered the Will and the attestors have signed before the Registrar and the evidence of P. Ws. prove due execution and attestation and it goes to establish that there was valid execution of the Will by the testatrix.
25. Counsel for the respondents submitted that the mere fact that the Will was registered, is not sufficient to dispel the suspicion. He relies upon the decision in Purnima Debi v. Khagendra Narayan , wherein it has been held that, If a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But, the mere fact that a Will is registered Will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration, will dispel the doubt as to the genuineness of the Will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the Will did not read it over to the testator or did not bring home to him that he was admitting the execution of a Will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the Will) that the testator knew that it was a Will the execution of which he was admitting, the fact that the Will was registered would not be of much value. Registration may take place without the executant really knowing what he was registering.
The evidence adduced in this case does not, in our opinion, dispel the suspicion arising in this case and the evidence falls short of proof required with regard to valid execution and attestation. The mere fact of registration is, in our opinion, insufficient in the facts and circumstances of this case to dispel the suspicious circumstances which we have enumerated above. We are, therefore, not satisfied about due execution and attestation of the Will and hold that the propounder is unable to dispel the suspicious circumstances which surround the execution and attestation of the Will. Under such circumstances, we find that no letters of administration in favour of the plaintiff can be granted. We agree with the reasoning and conclusion arrived at by the learned single Judge.
26. In the result, the original side appeal fails and is dismissed. No costs.