Madras High Court
Prayer vs For on 22 June, 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON DELIVERED ON 09-07-2018 16-07-2018 Coram: The Hon'ble Mr.Justice N.SATHISH KUMAR O.P.No.423 of 2015 K.R.Subramanian ... Petritioner Versus C.R. Susila ... Respondent Prayer: Original Petition has been filed under Section 232 and 276 of the Indian Succession Act XXXIX of 1925 for grant of letters of Administration with will annexed r/w order XXV Rule 15 of the Original Side Rule, to the petitioner as third party/beneficiary, under the Will of the deceased L.Vijayalakshmi dated 22.06.2013, to have effect limited to the Stat of Tamil Nadu. For Petitioner Mr. S. Subbiah, Senior Counsel for M/s.Balakrishnan Srinivasan P. Raja For Respondents Dr.A.E. Chelliah, Senior Counsel for Mr.C. Saifullah ORDER
The petition has been filed to grant Letters of Administration on the basis of the unregistered Will executed by Tmt.K. Vijayalakshmi bequeathing the properties in favour of the petitioner. It is the case of the petitioner that the testatrix Tmt.K. Vijayalkshmi is the absolute owner of the property. Her husband one Mr.C. Kathirvel predeceased her on 07.09.2011. The said Tmt.K.Vijayalakshmi executed the Will on 22.06.2013 bequeathing her entire properties to the petitioner. The respondent is the only sister of said Tmt.K.Vijayalakshmi. Though she has not filed any caveat and written statement, she cross examined P.W.1 and P.W.2 extensively. On the side of the petitioner P.W.1 and P.W.2 were examined and Ex.P1 to Ex.P.7 marked. On the side of the respondent though no witness was examined Ex.R1 to R14 were exhibited through the cross examination of P.Ws.
2. It is the contention of the learned Senior Counsel appearing for the petitioner that though the petitioner is stranger to the family of Tmt.K. Vijayalakshmi and her husband Mr.C.Kadirvel, he has been closely acquainted with them from the year 1960. Therefore he was all along treated as son of Tmt.K.Vijayalakshmi and her husband Mr.C.Kathirvel. Even at the time of purchase of the property in the name of Mr.C.Kathirvel, he was cited as one of the witnesses. This fact clearly shows that the petitioner was all along considered as one of the family member of Tmt.K.Vijayalakshmi and her husband Mr.C.Kathirvel. The respondent is the only sister of Tmt.K.Vijayalakshmi. There was no love and affection of the sister as she is residing in Coimbatore. The petitioner was very closely associated with Tmt.K.Vijayalakshmi and her husband Mr.C.Kathirvel and he was responsible for construction of their house. Even in the year 1984 an exclusive portion was constructed for the use of the petitioner and the petitioner was residing in the same property. Though the petitioner was married, he was residing separately in the suit property, which is the subject matter of the Will. Even during the life time of Tmt.K.Vijayalakshmi and her husband Mr.C.Kathirvel the petitioner was treated as their son. After the death Mr.C. Kathirvel, last rites were performed by the petitioner. After the death of her husband, he has also taken care of Tmt.K.Vijayalakshmi in all aspects including her health and treated her diabetes.
3. Taking into consideration of the love and affection shown by the petitioner, the deceased Tmt.K.Vijayalakshmi not only in respect of her own property but also the properties inherited from her husband, bequeathed the same to petitioner by a Will Ex.P.2 dated 22.06.2013 while she was in sound state of mind. After the execution of the Will merely because she has suffered some ailments and her toe and left leg were amputated cannot be a ground to suspect the Will. P.W.2, one of the attesting witnesses also clearly spoken about the Will. It is the further contention of the learned Senior Counsel that in the cross examination, the relationship of the petitioner with the Testatrix was not denied. Hence, the learned Senior Counsel submitted that merely because the petitioner is not related to the Testatrix and her husband, that cannot be the ground to disbelieve the Will, which is otherwise proved in the manner known to law. Hence, he prayed for grant of Letters of Administration in favour of the petitioner.
4. The learned Senior Counsel appearing for the respondent submitted that the petitioner is stranger to the family. No pleadings were made in the petition with regard to his acquittance with the testatrix and her husband. Whereas only for the first time in the chief examination, he pleaded such things that cannot be given importance. It is the further contention of the learned Senior Counsel that from the year 1991 onwards the petitioner schemed conspiracy to acquire valuable properties of the Testatrix and her husband who had no issue and proclaimed himself as son of the Testatrix and her husband. It is the further contention of the learned senior counsel that one of the sale deed executed in favourMr.C.Kathirvel, he singed as one of the witnesses and projected himself as their son. Admittedly, at the relevant point of time the petitioner was aged about 41 years and the Testatrix was aged about 44 years and her husband aged about 56 years. Therefore, treating the petitioner as their son, who is just three years younger than the Testatrix is highly improbable and cannot be believed. Even at the time of the death of Tmt.K.Vijayalakshmi the petitioner was 63 years. Therefore, treating him as her son when herself was aged about 66 years is also highly improbable. The main contention of the learned Senior Counsel is that the petitioner being stranger and the attesting witnesses are his close aides, one of the attesting witnesses is none other than his own brother which was also suppressed by him in the entire proceedings. Further the testatrix was chronic diabetic, she was suffering from serious ailments. Within few days after the alleged Will, she was admitted in the hospital for several days and one of her toes and the below the left knee leg was amputated and she was also died in the very next month. These are all the serious circumstances which go to show that the entire Will is nothing but fabricated with the help of the attesting witnesses.
5. P.W.2 is a Stamp Vendor, he claims to be an advocate, obtained legal decree from the Ambedkar College, Tirupathi. His evidence in entirety read goes to show that the Will is nothing but fabricated one. A careful reading of the Will in entirety would show that it is nothing but fabricated documents. One of the attesting witnesses viz., K.R. Ramakrishnaraja is the brother of the petitioner lives in Secunderabad, his presence to attest the document is also highly doubtful. Further the petitioner has claimed that all along he is residing in the suit property, but shown ignorance of the Will executed on the date i.e., on 22.06.2013. In the Will there is no whisper on her ailments on the other hand it is mentioned that she maintained good health. That itself is one of the serious circumstances to vitiate the documents. On 24.07.2013 her left toe was amputated. Whereas, the evidence of P.W.2 would go to show that as if he was present in the house of Tmt.K.Vijayalakshmi on her instruction to attest the Will. The reason for going to her house was that the deceased has recently operated her leg. Therefore she had executed the Will. But this aspect is totally silent in the Will. It is submitted that P.W.2's evidence is also highly unreliable. Merely because he has spoken about the alleged execution and attestation of the Will, the same cannot be given any credence.
6. In the light of the above submissions, now the point arise for consideration is whether the Will dated 22.06.2013 said to have been executed by Tmt.K.Vijayalakshmi in favour of the petitioner is true, valid and proved in the manner known to law?
Point:
7. The petitioner admittedly is not a relative either to Testatrix Tmt.K.Vijayalakshmi or her husband Mr.C.Kathirvel. However, he propounded the Will dated 22.06.2013 said to have been executed by Tmt.K.Vijayalakshmi in his favour not only in respect of her absolute properties in Chennai but also the other properties inherited by her from husband Mr.C.Kathirvel. It is the contention of the learned Senior Counsel for the petitioner that the petitioner become close to the family of Tmt.K. Vijayalakshmi and her husband from the year 1964 till her death. It is to be noted that these facts are not even pleaded in the petition. Only for the first time, in the chief examination, these facts were brought on record by way of evidence. Be that as it may. It is the contention of the respondent who is the only sister of Tmt.K. Vijayalakshmi that the petitioner being the stranger to the family, is taking advantage of some closeness with Tmt.K. Vijayalakshmi has fabricated the Will with intention to knock out the valuable properties. Petitioner proclaimed himself as son of Tmt.K.Vijayalakshmi and Mr.C.Kathirvel, whereas the age difference between Tmt.K.Vijayalakshmi and this petitioner is only three (3) years. Be that as it may. The petitioner has come before the Court for grant of Letters of Administration on the basis of the Will said to have been executed by Tmt.K.Vijayalakshmi on 22.6.2013. It is well settled that the initial burden is always on the profounder not only to prove the execution and attestation of the Will, but also to dispel the suspicious circumstances attached to the Will. Ex.P.2 Will when carefully seen, it is prepared in English and said to have signed by Tmt.K. Vijayalakshmi in all pages. The Will said to have signed in the presence of one Mr.I.Jesu, Advocate on 22.06.2013 and two of the attesting witnesses. One of the attesting witnesses B. Ramesh S/o A. Balakrishnan examined as P.W.2. Mr.K.R. Ramakrishnaraja is the other attesting witness. The recitals in the Will shows as if on the date of execution of the Will viz., 22.06.2013, the testatrix maintained in good health and possessed sound state of mind. It is also to be noted that one of the attesting witnesses viz., K.R. Ramakrishnaraja, as per the own admission of P.W.1.is his own brother and residing in Secunderabad. But this fact is not even stated in the petition.
8. It is further to be noted that on the side of the petitioner only Exs.P.1 to P.7 were marked viz., the death certificates of Tmt.K.Vijayalakshmi and her husband Mr.C.Kathirvel, Will and publications. Only during the cross examination, respondent documents Exs.R.1 to R.23 came to be filed. Ex.R.1. Series of copies of medical bills and medical certificate of Tmt.K. Vijayalakshmi. Ex.R1 series when carefully seen, she was admitted in the hospital on 04.07.2013 till 30.07.2013 for various ailments. It is also admitted by the petitioner that the originals of Ex.R1 were submitted to the Insurance company for claiming amount. Ex.R1 original said to have been given to the Insurance Company by P.W.1. The same goes to show that she was in hospital till 30.07.2013. Whereas death certificate of Tmt.K.Vijayalakshmi produced by the P.W.1 shows that she was died on 29.07.2013 in the hospital. Ex.R2 is the sale deed executed in the name of Mr.C.Kathirvel in the year 1991 wherein the petitioner has signed as one of the identifying witness and he himself signed as son of Mr.C.Kathirvel. It is to be noted that the age difference between Tmt.K.Vijayalakshmi and the petitioner is only three (3) years as per the admitted evidence, therefore, treating him even as an adopted son is highly improbable. Though this document may give raise to the inference that the petitioner is associated with the family of the testatrix and her husband. Such association will not be sufficient to infer the genuineness of the Will.
9. The Will has to be proved in a manner known to law by dispelling the suspicious circumstances surrounding the Will. The entire Will show as if she was maintained in good health and mental soundness. But Ex.R1 and admission of P.W1 itself clearly indicate that she was admitted in the hospital immediately after two days of the alleged Will. Further his admission in the cross examination dated 13.6.2016 clearly indicates that he has claimed the medical reimbursement for the expenses. Similarly in the cross examination on 19.06.2016 the petitioner has very categorically admitted that immediately after the Will dated 22.06.2013 she was admitted in the hospital on 24.6.2013 and on 4.7.2013 also she was again admitted in the hospital. It is also admitted in his cross examination dated 20.12.2016 that on 27.4.2013 her toe in her forefoot was amputated. Thereafter on 22.07.2013 her left leg was amputated below the knee. Before that forefoot of left leg was removed on 04.07.2013. These facts clearly indicate that at the relevant point of time the testatrix was suffering from serious diabetic ailment. Normally limbs were removed only when the gangrene set in the parts of the body. Though the alleged Will dated 22.06.2013 is perused, within two days of the said Will she has been continuously in the hospital for various ailments which resulted only in amputation of her left tow and fore foot in the left leg, finally it culminated into removal of one of her leg i.e., below the knee of the left leg. All these facts clearly established that at the relevant point of time she was not at all maintaining good health and she died on 29.07.2013 as per the death certificate Ex.P.1. Whereas in the Will it is recited as if she was physically and mentally fit, which cannot be true at all.
10. When a person is suffering various ailments definitely he/she cannot be able to understand the nature of things. Since the testatrix Tmt.K.Vijayalakshmi was suffering from ulcer, forefoot Chronic, Kidney disease, Coronary Artery Disease, Hypertension etc., it cannot be concluded that she was sound state of mind at the time of execution of the Will. In this regard the judgment of mine in K. Iyeswaran and others v.G.Iyeswarialakshmi and another reported in [2017-1-L.W.268] is as follows:
"17. In this context, it is useful to refer Section 12 of Indian Contract Act, 1872, which reads as follows:
"What is a sound mind for the purposes of contracting: A person is said to be of sound mind for the purpose of making a contract, if at the time when he makes it, he is capable of understanding it and forming a rational judgment as to its effect upon his interests.
A person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind.
A person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind."
From the above section, it is clear that to infer the sound mind of the person, there must be an evidence to show his/her capability of understanding the nature of things and able to make rational judgment about his/her interest."
11. It is further to be noted that though the petitioner claims that he is residing in the same property in a separate portion from the year 1984, he has shown ignorance of the Will. He claims to have known about the Will only after some period, that is also highly improbable. His one of the brothers who said to have been an attesting witness, as per his own admission, is residing at Ahmedabad. His presence at the time of execution of alleged Will is also not known to the petitioner. This fact is, in fact, against the normal human conduct and natural events. If really the Will was executed on 22.06.2013 in the house of the Testatrix, that too when the brother of the petitioner who has also allegedly visited the house all along from Ahmedabad, the same would have been known to the petitioner, who is living in the same property. Whereas the petitioner claimed ignorance of the above events. These are also one of the serious circumstances attached to the Will. The propounder of the Will who should prove both execution and the disposing state of mind, becomes also fastened with the liability to remove suspicious circumstances, if any surrounding the execution of the Will.
12. In Shashi Kumar Banerjee v. Subodh Kumar Banerjee, [AIR 1964 SC 529] the Supreme Court stated that the onus of proving the Will is on the propounder and in the absence of suspicious circumstances surroundingthe 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 there are no pleas of undue influence, fraud and coercion or such circumstances giving 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 or there might be other indications in the Will to show that the testator's mind was not free and in such a case, the Court would naturally expect that all legitimate suspicion is removed by the propounder before the document is accepted as the last Will of the testator.
13. It is to be noted that Ex.R.3 has filed to show that the petitioner has already taken Mediclaim policy for Tmt.K.Vijayalakshmi for the period 01.11.2012 to 31.10.2013. Claims Payment Statement attached to Ex.R.3 clearly shows that on diagnosis on 04.05.2013 the following ailments were noted:
Non-Healing Ulcer And Raw Area Left Forefoot Chronic Kidney Disease Coronary Artery Disease Systemic Hypertension Type 2 Diabetes Mellitus Peripheral Vascular It is to be noted that on 04.05.2013 itself the Testatrix was suffering with the above said ailments. She was not in good health. Ex.R.4 Sale Deed executed in favour of the Testatrix shows that the petitioner stood as one of the identifying witnesses. Wherein his fathers name is shown as K.S.Ramasamy Raja. He signed as an attesting witness whereas his fathers name is given as K.S.Ramasamy Raja. If really he was treated all along the son of the Testatrix as he mentioned in the earlier documents i.e., in Ex.R.2, his father name would not have mentioned in Ex.R.4. Though Ex.R2 and Ex.R.4 give inference that the petitioner somewhat closely living with the Testatrix and her husband, such association itself is not sufficient to infer the genuineness of the Will.
14. Exs.R.6 and 16 are Rental Agreements in respect of the suit property, wherein the petitioner himself claimed as principal owner of the property after the death of the Testatrix without even establishing the right over the Will, would clearly indicate his intention in some or otherway to have control over the property of the Testatrix and her husband. Ex.R.9 and Ex.R.10 shows that some shares were held by the Testatrix and the petitioner. These documents at the most will lead to some association between the petitioner and the Testatrix. Ex.R.11 is the Bank Pass book of the Testatrix. The entries in the Pass Book clearly indicate that even after the death of the deceased the amount has been withdrawn by the petitioner. Exs.R.15, R.17 to R.21 are Rental Agreements executed by Tmt.K.Vijayalakshmi. Whereas after the death of the deceased the petitioner has executed the rental agreements claiming himself as owner. These documents clearly indicate that the petitioner was all along having an idea to exercise control over the property. Now he propounded the Will to claim to be the absolute ownership of the property. As already discussed, the Will recital show as if the testatrix was physically and mentally sound at the time of executing the Will. But the medical certificate and admission of the petitioner shows that she was suffering from serious ailment and the claim statement and Insurance Policy also clearly prove the fact that she was not well and suffering from serious ailments.
15. In the above back ground when we see the evidence of P.W.2 claiming to be an advocate by profession enrolled in the year 2010. In his chief examination he has stated that the testatrix requested him to prepare a Will one year prior to the date of Will and gave all particulars. Accordingly, he prepared the Will as per her desire and instructions. He went to the house of the Testatrix on 22.6.2013. As the deceased was recently operated upon her leg she wished to execute the Will at her residence itself. He suggested to the testatrix that in the presence of Mr.I. Jesu, Advocate, Commissioner of Oaths she can execute the Will. Accordingly, the Will was executed in the presence of Mr.K.R. Ramakrishnaraja, Mr.I.Jesu and himself. It is to be noted that the evidence of P.W.2 in the chief examination itself shows that on the date of the will itself she underwent surgery on her leg. Whereas the recitals in the Will proceeded to show as if testatrix was keeping good health and sound mind. Further it is to be noted that the entirety of P.W.1's evidence shows that the surgery on the leg was performed only after the execution of the will and not before the Will. The inconsistency statements of P.W.1 and P.W.2 with regard to the health condition of the Testatrix also creates serious doubt about the genuineness of the Will.
16. P.W.2 though claimed to be an Advocate, as per his admission he was not practicing in Courts and he knows Tmt.K.Vijayalakshmi and her husband more than 13 years, he used to give legal advice as legal adviser and prepared many documents. It is to be noted that he has completed his law degree in the year 2010 and he not even practicing in Court of law, his evidence that he used to give legal advice to the testatrix and her husband prior to that period is highly improbable. His further evidence in the cross examination shows that prior to the Will he has prepared Power of Attorney in favour of the petitioner as per the instructions of the testatrix. The power of attorney was executed due to the ill health conditions and age factors. His evidence also clearly shows that even many years before the Will came into existence, she was not well, therefore, Power of Attorney was obtained in the name of the petitioner. P.W.2 is the Stamp Vendor as per his own admission. Preparation of the Will at the instruction of P.W.1 cannot be ruled out. His evidence further shows that he drafted the Will one year prior to the execution of the alleged Will is also highly improbable and against the normal human conduct.
17. Further, the signature of the Testatrix found in all pages also gives serious doubt about the Will. Admittedly, the testatrix suffering from serious ailments and she was also subjected to surgery, removed one of her limb, as per the admission of P.W.2 prior to the execution of the Will. That being the position, signing of document even without any shake in the signature as a normal person would also give an inference that the Will is not true and valid and prepared only with the help of P.W.2 who just obtained a decree in law and his main avocation was stamp vendor. One of the attesting witnesses is none other than the brother of the petitioner. Further, no evidence is available on record to show that the testatrix was all along keeping good health and mental faculties or a testamentary capacity at the relevant time, prior and after the alleged Will she was all along in the hospital till her death. No medical evidence is available on record even to infer that she was having capacity to take a rational decision. In view of the above facts, this court is not satisfied about the genuineness of Will.
18. The Court sitting in the arm chair of the testatrix after carefully analysing the entire facts particularly the serious ailments suffered by the testatrix, in the manner in which the Will came to be executed is not convinced itself about the genuineness of the Will. As the suspicious circumstances are attached with the Will, the petitioner is not entitled for grant of Letters of Administration. Therefore, this court has come to the conclusion that Will is not true, valid and proved in the manner known to law. The point is answered accordingly.
19. In the result the original petition is dismissed. No costs.
16-07-2018 Index:Yes/No Internet:Yes/No ggs.
N. SATHISH KUMAR, J.
ggs Order in:
O.P.No.423 of 201516-07-2018