Bangalore District Court
Radhika Devi M vs Sandhya S on 13 August, 2024
1
O.S.No.1397/2012
KABC010132442012
C.R.P.67 Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XLIV ADDL. CITY CIVIL
JUDGE, AT BENGALURU (CCH-45)
Dated this the 13th day of August, 2024
PRESENT: SRI. DODDEGOWDA.K, B.A., L.L.B.,
XLIV ADDL. CITY CIVIL AND SESSIONS
JUDGE, BENGALURU.
O.S.No.1397/2012
PETITIONER : Dr. Radhika Devi M
aged about 49 years,
D/o of Late Sri. S.S. Mani
R/at No.166,
K.Kamaraj Road
Bagalore-560042
(By Sri.D.R.R/K.K.G Advocate)
VS.
RESPONDENT : Smt. S. Sandhya
R/at No.591
Krishna Complex
Opp. Vijayalakshmi Theatre
Chickpet
2
O.S.No.1397/2012
Bangalore-560053
(By Sri.S.V.M, Advocate)
Date of Institution of the Instituted as P & S on
suit 22/7/2010
Converted as original suit
on 07/02/2012
Nature of the suit P and SC has been
converted as contentious
original suit
Date of commencement 20-03-2019
of recording of the
evidence
Date on which the 13-08-2024
Judgment was pronounced
Total Duration Years Months Days
14 00 22
(DODDEGOWDA.K)
XLIV ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
Initially, the plaintiff herein has filed petition under Sec.276 of the Hindu Succession Act 1925 for grant of probate in respect of the Will dated 25/08/2009. Which was numbered as P and SC No.195/2010. Later on, the said petition was converted as original suit by the order dated 07/02/2012. Subsequent to the order of the court 3 O.S.No.1397/2012 separate OS No. i.e OS No.1397/2012 has been given. The suit is filed for the relief of grant of probate and to declare that the Will dated 25/08/2009 of Late. M. Saindran is the last Will and testament.
2. Since the original P and SC No.195/2010 has been converted as original suit the petitioner shall be treated as the plaintiff and the respondent as the defendant.
3. The case of the plaintiff in brief is that she is the biological sister of Late.M. Saindran, Son of S.S.Mani, who belonged to Hindu Religion. The said M.Saindran was an advocate by profession and resident of Bangalore and his fixed place of residence was Bangalore. He died on 15/11/2009, at Bangalore within the jurisdiction of this court. The aforesaid M. Saindran died leaving behind his last Will and testament dated 25/08/2009, which was registered as document No.INR- 3-00084/2009-10 on 25/08/2009 in the office of Sub- 4
O.S.No.1397/2012 Registrar, Indira Nagar, Bangalore. The said Will dated 25/08/2009 was duly executed by the Testator Sri. M. Saindran in a sound state of mind and body in the presence of the witness whose names and signatures are found at the last page of the testament dated 25/08/2009. The said last Will and testament also revokes all previous Wills and codicils.
4. In the said Will the plaintiff herein has been constituted and appointed as the sole executrix of the said last Will and testament. Hence, the plaintiff is entitled to take probate of the aforesaid Will.
5. It is further submitted that apart from the last Will and testament dated 25/08/2009, the testator had made Wills dated 30/12/2001 and 15/10/2002 which stood revoked by the Will dated 25/08/2009. Apart from the same, the testator has not left behind him any other documents purporting to be his last Will or codicil. Under the said last Will and testament, the aforesaid 5 O.S.No.1397/2012 testator has bequeathed immovable mentioned therein absolutely infavor of the plaintiff. The plaintiff has truly set forth in the schedules to this petition, all the properties and credits which the testator possessed of or was otherwise entitled to at the time of his death, which have been absolutely bequeathed infavor of the plaintiff. There is no other property or credits other than what are specified in the schedule to the suit and in case of discovery of other asset, the plaintiff undertakes to pay the required court fee on that account.
6. It is submitted that the value of the assets which are likely to come to the share of the plaintiff herein in the event of grant of probate of the said Will infavor of the plaintiff does not exceed in all the aggregate sum of Rs.1,30,00,000/- and are situated in the State of Karnataka, within the jurisdiction of this court. It is submitted that so far no petition or 6 O.S.No.1397/2012 application has been made either to this court or to any other court for probate of any Will of the said deceased Sri. M. Saindran and therefore, there is no impediment whatsoever to grant the probate in the name of the plaintiff/petitioner as prayed for. Accordingly, the plaintiff prays to grant probate in respect of the Will dated 25/08/2009.
7. Later on, the plaintiff has filed amended plaint on 09/01/2020 wherein it is submitted that the plaintiff and her brother Late. M. Saindran have taken loan of Rs.55,00,000/- from several banks and also several hand loans to purchase the property bearing old No.147, New No.166 Kamraj Road, Bangalore as the father of the plaintiff had sold the same infavor of Smt. K. Mustaq Begum and Sri. Asadulla Khan, after compromising matter in a Civil suit between the plaintiff as well as her brother Late.M. Saindran with the above said persons. The plaintiff has been paying monthly EMI 7 O.S.No.1397/2012 to all the banks even after the death of her brother. The said M. Saindran and the plaintiff have also settled the amount of Rs.13,75,000/- to the builder M/s Jain Housing and Construction Ltd, Bangalore to take the possession of the flats constructed on the Cambridge Road.
8. On 14/02/2013 and 01/02/2018, the plaintiff has filed re-joinder statement to the written statement filed by the defendant contending that the written statement filed by the defendant is wholly false, frivolous and vexatious. The plaintiff and Late Sri. Saindran are the children of Late. S.S. Mani. The said S.S. Mani had abandoned his family in the year 1982 when the plaintiff and her brother were still under schooling. Late S.S. Mani was a drunkard, philanderer and womanizer and would torture the plaintiff, her brother and her mother every day while he lived with them. The Mother of the plaintiff Dr.A. Sundara Bai was 8 O.S.No.1397/2012 a professor in the University of Agricultural Sciences, GKVK and was maintaining the family after her father left the house. The mother of the plaintiff had taken voluntary retirement as her husband Late. Sri. S.S. Mani used to harass her by misbehaving at her work place and spoil her name. Infact the mother of the plaintiff was also suffering from heart aliments and breast cancer. Later, she died in the year 1994, thereafter, the burden of looking after the affairs of the family shifted on to the plaintiff. The father of the plaintiff taking advantage of death of her mother started visiting the house of the plaintiff pretending that he cared for them and said that he had given up his bad habits. He pretended to be reformed man and taken the required papers relating to the mother of the plaintiff from the custody of the plaintiff to claim her dead mother's pension, which he was drawing till his death. During this period the brother of the plaintiff i.e Saindran 9 O.S.No.1397/2012 completed his studies in law and started practicing as an advocate. The brother of the plaintiff, the testator of the Will dated 25/08/2009, married the defendant on 29/01/2001 from their wedlock two children namely Master Dananjaya and Shrimayi were born. The plaintiff was looking after the daily needs of the entire family of the brother of the plaintiff
9. It is further submitted that soon after the marriage, the mother, uncles and aunts of defendant started showing their true colors. During December 2007 the defendant's younger sister-Shwetha died suddenly. The brother of the plaintiff took the defendant to the funeral of her sister Shwetha though there was history of abuse and forgery by Sandya's family members. Ever since then the defendant's attitudes and behavior towards the plaintiff and her brother became hostile due to the ill advice of her relatives against this plaintiff and her brother. 10
O.S.No.1397/2012
10. It is submitted that after few days of the funeral of sister of the defendant, the defendant started quarreling with her husband for petty reasons and she was not taking care of her children. The sudden change in the attitude of the defendant was surprising to the plaintiff and her brother. It was because of the ill advice of the mother and relatives of the defendant. Ultimately the defendant left the matrimonial house and started leaving separately along with her aunt. Due to ill advice of the relatives of the defendant she had lodged complaint against her husband Saindran before women police station. Further she also lodged criminal case in C.Misc.No.713/2009 against the plaintiff and her late brother under the provisions of Domestic Violence Act, 2005. The defendant had also filed a dowry harassment case before the 9 th Additional CMM, Court at Bangalore in PCR No.7493/2009 against her husband and the plaintiff herein. The defendant had 11 O.S.No.1397/2012 also filed divorce petition against her husband in MC NO.1337/2009 before the family court. By filing the above said false cases the defendant had harassed and humiliated the plaintiff and the husband of the defendant i.e Saindran to the extreme extent. Due to the harassment and humiliation the image of the said Saindran in the society had impacted and his health condition started to deteriorate gradually. However, the two children born to Saindran were much attached to the plaintiff and in the circumstances 1 st child is residing with this plaintiff from beginning and even now is residing with the plaintiff. The plaintiff is providing good education to the 1st child and taking care of him well. The plaintiff obtained the legal custody of the 1 st child vide order 15/12/2002.
11. It is submitted that subsequently the Crl. Misc filed by the defendant in C.Misc No.713/2009 came to be dismissed vide order dated 19/03/2015. The plaintiff 12 O.S.No.1397/2012 had sought for quashing of criminal case i.e CC NO.23789/2009 (PCR No.7496/2009) in Crl.P.NO.960/2010 and the said criminal case was quashed vide order dated 18/03/2014.
12. It is submitted that the defendant was not a dutiful wife, she failed to take care of her husband when he was ill and battling of life. Instead she filed many false criminal cases against her husband and this plaintiff as stated above. The defendant did not allow her husband to recoup his health with proper rest, medical treatment and piece of mind and deliberately and with a malafide intention filed false cases after cases against her husband Saindran and the plaintiff. The defendant did not even bothered to visit the funeral of her husband. The defendant did not want her husband during his most difficult times but wants to enjoy his property and is fighting for his properties tooth and nail, even though he had bequeathed all his 13 O.S.No.1397/2012 properties by way of lawful deeds during his life time itself. After the defendant openly tried her best to get her husband imprisoned under Sec.498 A of IPC it is indeed very foolish thinking on her part to hope that her husband would write his share of property in her favor. It is submitted that on the date of execution of Will dated 25/08/2009 the deceased brother of the plaintiff i.e M. Saindran was in a sound state of mind . The executant being an advocate by profession by way of abundant caution on 25/08/2005 approached Dr. Harsad Devarbhai and sought for a certificate regarding his medical condition and executed will infavor of the plaintiff.
13. The defendant who appeared through her counsel, filed detailed written statement denying the allegations of the plaint as under:-
The suit filed by the plaintiff to prove the last Will and testament dated 25.08.2009 of Mr. M. Saindran and 14 O.S.No.1397/2012 for grant of probate is not maintainable in the eyes of law or on facts and the same is liable to be dismissed. The suit has filed by suppressing the material facts. The defendant is the legally wedded wife of Late. M. Saindran. The brother of the plaintiff and the plaintiff has not whispered a single word of this marriage or the children's of the defendant in the plaint. The marriage of the defendant with the brother of the plaintiff had taken place on 29.01.2001 at Arya Samaj, CMH Road, Indiranagar, Bangalore, as per the Hindu customs and the same was arranged marriage. From the wedlock the defendant has two children namely Master Dhananjaya born on 07.08.2002 and Baby Shrimayi born on 04.10.2005.
14. The defendant submits that since the date of marriage and entering the matrimonial home she was never allowed to visit her parents and relatives and even was not allowed to talk to them over phone. The 15 O.S.No.1397/2012 defendant had tolerated all the harassments and torture keeping in view the welfare of her children's and dignity of her husband's family. The defendant had visited her parents house on three or four occasions only to console the un-timely death of her daughter who was very young at the time of death. The plaintiff and her brother not tolerating this had started suspecting her and started making un-parliamentary and vulgar allegations. They started objecting her visiting her parent's house and started harassing and ill-treating her without any reasons and the defendant was treated worst than a maid servant by both the plaintiff and her brother. The defendant submits that thereafter, her husband and the plaintiff started demanding dowry and also money that they spent for the deliveries at Manipal Hospital.
15. The defendant submits that ultimately unable to tolerate any further torture and harassment she went 16 O.S.No.1397/2012 back to her parent's house on 17.03.2009 and even thereafter her husband and the plaintiff started haunting her wherever she go. Under these circumstances, the defendant was constrained to file a private complaint in PCR No.7493 of 2009 before the IX Addl Chief Metropolitan Magistrate, Bangalore, against her husband and the plaintiff for dowry harassment, since her husband's family is very influential the police refused to take any action. The defendant in the mean while had also filed C. Mis No.713 of 2009 against her husband and the plaintiff under the provisions of Domestic Violence Act. The defendant submits that later as the pressure, torture and harassment increased she was forced to file M.C. No. 1337 of 2009 before the Family Court, Bangalore, seeking divorce and maintenance against her husband i.e the alleged testator.
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O.S.No.1397/2012
16. The defendant submits that her husband Mr M. Saindran was a chronic alcoholic who used to drink right from the morning and was a puppet in the hands of his sister i.e, the plaintiff, the plaintiff being a medical doctor instead of advising her brother not to drink was encouraging him which ultimately resulted in he developing Liver disease and her husband started to suffer because of this ailment. The defendant submits that since the Liver disease of her husband became chronic and as he was having Blood Pressure was admitted to St. John's Hospital, Bangalore, on 05.08.2009 and was discharged on 09.08.2009 wherein it was diagnosed to be cirrhosis of Liver and acute renal failure.
17. The defendant submits that her husband was again hospitalized at St. John's Hospital, Bangalore, on 17.08.2009 and was discharged on 23.08.2009 to treat the very same disease. The defendant submits that in 18 O.S.No.1397/2012 the discharge summary it is mentioned that "the patient had altered behavior and could not find his way to the toilet". Under these circumstances, when the husband of the defendant who was not in a position to know what was happening around him is stated to have executed a registered Will on 25.08.2009 which is in Document No. INR-3-00084-2009-10 stored in CD No. INRD8, before the Sub-registrar, Indiranagar, Bangalore. Therefore, the defendant submits all this clearly show that the said Will is not executed in sound state of mind by Mr. M. Saindran the brother of the plaintiff and husband of the defendant and is forcibly got executed by the plaintiff.
18. The defendant submits that her husband was not in a position to know what really was happening around him and under alcoholic influence and pressure from his sister i.e. the plaintiff the said will came to be executed. The defendant submits that the alleged Will 19 O.S.No.1397/2012 is stated to have been drafted by her husband and has shown that all the movable and immovable properties as having been bequeathed in the name of the plaintiff. Added to this her husband has also given away her children's to the plaintiff is totally unacceptable and unethical.
19. The defendant submits that within 10 days after executing the Will again her husband was hospitalized at St. John's Hospital Bangalore, on 05.09.2009 and was discharged on 09.09.2009 to treat the very same disease. The defendant submits that her husband was totally unwell because of Liver disease and was suffering from total abdominal discomfort and was admitted to BGS Global Hospital on 05.11.2009 and later died on 15.11.2009. The defendant further submits that in the Discharge Summary issued by the hospital it is clearly stated that Mr. M. Saindran was brought to the hospital with complaints of abdominal 20 O.S.No.1397/2012 dysfunction since 10 days, fever with breathlessness since 2 days. All these facts clearly confirm that on the date of execution of Will her husband's condition was not good and he was totally unwell and did not had the sense to what exactly was happening in and around him.
20. The defendant submits that the plaintiff being a doctor by profession was well aware of the nature of the disease suffered by her brother and also probably as she had realized that her brother is counting the days acted timely and just with a malafide intention and to deny any share in the schedule property to the defendant and her children's, has got executed the Will in a hurry and haste from a person who was unable to execute any Will that too by excluding his own children. The defendant submits that the plaintiff has tactfully stage managed every thing and under pressure and force by the plaintiff her husband has got the said Will 21 O.S.No.1397/2012 executed showing all the properties. The defendant submits that neither she nor her two children are given any share in properties through the said will. The defendant submits that the said Will is executed under duress, fraud and when executed her husband was not in the presence of mind hence the same is void and the cursoy reading of the Will clearly makes out that the same is written under undue influence, coercion and pressure by the plaintiff in his absence of mind. The defendant submits that the Will also has makes some character assasination.
21. The defendant further submits that if really the contents of the Will to be true then Mr. M. Saindran would have never filed M. C. No.2283 of 2009 before the Learned I Addl. Principal Family Judge, Bangalore, under section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal Rights. The defendant submits that her husband in the said petition has not 22 O.S.No.1397/2012 leveled any allegation against her or against any of her other family members which clearly show that the Will executed by her husband in favour of his sister i.e., the plaintiff is only under pressure and coercion.
22. The defendant further submits that the plaintiff has forcibly retaining her son on the pretext that she would give him good education and she is taking undue advantage of the Will though the said Will do not say anything about testamentary guardianship and only dirty allegation are made against. If really the statements made in the Will at para No.8, 9, 10, 12, 13, 14, 15 and 16 were to be true and correct her husband would have never filed a petition seeking restitution of conjugal rights. These facts also prove that even though a divorce petition was filed by her husband he was having all love, care and concern about her and her children since he had a clear intention to reconcile the matter.
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O.S.No.1397/2012
23. The defendant submits that her husband had no intention of giving his two children in adoption to the plaintiff as claimed in the last few lines of para No.18 of the Will and had also no intention of denying share to his wife and children. The defendant submits that at para No.4 of the Will clearly stated that his father was a drunkard, philanderer and womanizer and torture them every day while he lived with them. In view of this it is stated that his father was living separately since the year 1982. The husband of the defendant always used to say that in the event of his death to bring his son Master Dhananjay in good atmosphere and not to allow him to become like his father and himself.
24. The defendant submits that if really her husband had executed the Will he would have definitely mentioned the restitution petition filed by him and since it is the handy work of the Plaintiff she has deliberately suppressed the facts which again clearly 24 O.S.No.1397/2012 show that her husband had no intention to execute a Will. The defendant submits that there was no necessary for her late husband to have executed a will and a release deed of the same property which again gives room for suspicion and bad intention on the part of the plaintiff. The defendant further submits that the Plaintiff deliberately has described her in bad manner and has made her character assassination. The defendant had no intention of getting married and even this is described in bad taste.
25. The defendant submits that she had filed a suit challenging the Will before this Court and as she was unable to pay the Court Fee she had filed a Pauper Miscellaneous and the said Plaintiff has got registered. The defendant submits that if probate as sought is granted she would be put to great hardship besides losses and would result in total miscarriage of justice. The plaintiff has not made out prima-facie good case for 25 O.S.No.1397/2012 grant of probate and the Plaintiff has filed the said suit only to deny custody of her son and daughter which is totally not permissible.
26. On 21/06/2018 the defendant has filed additional written statement as under:-
The allegation contained in para No. 9-A of the plaint that C. Misc. No. 713/2009 came to be dismissed by Chief Metropolitan Magistrate and the Criminal case i.e C.C.No.23789/2009 were quashed in Criminal Petition No. 960/2010 are nothing to do with the present case, though there was an interim order in Criminal Misc. No. 713/2009 to pay the maintenance of Rs. 10,000/- to the plaintiff and for her daughter, the plaintiff never paid any single pie to the defendant, inspite of her knowledge regarding the said order and the condition of the defendant, it shows the greediness of the plaintiff in withholding maintenance amount which ought to have been payable to her own brother's, 26 O.S.No.1397/2012 wife and children. To the contrary the plaintiff presented the present suit based on the sham and deceitful Will so as to grab the entire property of the deceased husband of the defendant.
27. The allegation made in para No. 11 (a) of the plaint that on the day of execution of WILL dated 25/08/2009 the testator i.e., M. Saindran, brother of the plaintiff, was in sound and disposing state of mind and was hale and healthy, the testator on thorough check up and treatment by the St John's Hospital was discharged as he was normal and also as his condition improved, the testator being an advocate by profession by way of abundant caution on 25/08/2018 approached Dr. Harshad Devarbhavi and sought for certificate regarding his medical condition, the said Doctor on the basis of medical records and on examination has certified that the testator has no "Encephalopathy", hence testator in his sound state of mind without any 27 O.S.No.1397/2012 coercion from any one, on his own went and executed a WILL and got the same registered are all denied as false.
28. The defendant submits that there are many cases filed by the plaintiff against the defendant and even in the present suit also, the plaintiff has filed detailed rejoinder, wherein nothing is whispered as to the existence of documents for establishing the medical condition of her deceased brother, now all of a sudden the plaintiff has come out with entirely new set of story which was unheard by anybody nor in any of the proceedings pending against the parties. All these allegation made in para No. 11A of the plaint are purely concocted story to fill up the lacuna of the pleadings made earlier.
29. The defendant submits that her deceased husband was a chronic alcoholic and he was a puppet in the hands of his sister i.e., plaintiff herein. The plaintiff 28 O.S.No.1397/2012 being a Medical Doctor instead of advising her brother, was encouraging him to consume alcohol which ultimately resulted in developing chronic Liver disease and having high Blood pressure admitted to St. John hospital on 05/08/2009 and was discharged on 09/08/2009 wherein it was diagnosed to be Cirrhosis of Liver and acute Renal (Kidney) failure. Again, he was hospitalized at St. John Hospital, Bengaluru on 17/08/2009 and was discharged on 23/08/2009 to treat the decease. Upon his discharge on 23/08/2009 in the discharge summary it is clearly mentioned that "the patient had altered behavior and could not find his way to the toilet". Under such circumstances, the husband of the defendant was not even in a position to know what was happening in and around him and the husband of the defendant took his last breath on 15/11/2009 on account of the Liver Cirrhosis, the present plaintiff not even bothered to inform the death 29 O.S.No.1397/2012 of her brother to his wife for the reasons best known to her and it was only after the completion of 11 th day ritual the said aspect of death was made known to the defendant and to the father of the deceased. The story narrated by the plaintiff regarding the capacity of the deceased husband as on 25/08/2009 is highly false and frivolous and the certificate which the plaintiff relying upon is created one and hence denied as false.
30. On 09/01/2020 the defendant has also filed additional written statement stating that the allegation contained in para no.8(h) of the petition that the plaintiff and her brother late Sri M. Saindran have taken loan of Rs.55,00,000/- from various banks and hand loans to purchase the property bearing Old No.147 is denied as false and the plaintiff is put to strict proof of the same. The further allegation that the plaintiff has been paying monthly EMI to all the banks even after the death of her brother late Sri Saindran is denied as false 30 O.S.No.1397/2012 and the further allegation that the deceased M. Saindran and the plaintiff have also settled the amount of Rs.30,75,000/ to the builder M/s. Jain Housing and Constructions Ltd., to take the possession of the flat constructed on the Cambridge property is also denied as false but the truth is that both these properties jointly owned by the plaintiff and the deceased Sri Late Saindran, and the deceased Saindran had definite share over both the properties, the plaintiff in order to knock of the entire property played a mischief in creating the WILL alleged to have been executed by the deceased husband of the defendant when he was not in sound state of mind. It is further submitted that, the husband of the defendant died on 15.11.2009, due to Liver Cirrhosis, the plaintiff succeeded in her game plan and immediately by taking the opportunity of ill-health condition of the husband of the defendant, again played a mischief by executing a absolute sale deed in favour 31 O.S.No.1397/2012 of one person by name Srinivas on 01.10.2009, in respect of the property bearing Municipal No. 754, situated at 1st Stage, Indira Nagar behind the back of the deceased Sri Srindran and the defendant. Even till today the plaintiff has not given any account for having an illegal gain over the sale of the property. The plaintiff has sold the property which was jointly owned by the husband of the deceased and plaintiff. For which the defendant has filed separate suits and they are pending for consideration before this court.
31. Earlier, the testator had also made two Wills dated 30/12/2001 and 15/10/2002 prior to his last Will dated 25/08/2009. The original of the said Will is already produced and the same is in safe custody. In those Wills also deceased has appointed the plaintiff as the sole executrix of the Wills and bequeathed all the moveable and schedule properties infavor of the plaintiff and also given the custody of his two children 32 O.S.No.1397/2012 namely Master Dananjay and Kum. Srimayi. The strong reasons for this act of the testator to make the plaintiff as executrix are that the defendant has not conducted herself as a poius Hindu wife by taking care of the testator when he was ill. The defendant had filed false criminal cases against him under the provisions of IPC and seeking divorce against the testator. In view of the criminal cases filed against the testator, the plaintiff and her brother were put to great hardship in obtaining anticipatory bail, this also hindered or the treatment of the plaintiff's mother. This act of the defendant had brought down his reputation in the society and health of the testator had started deteriorating. This made the testator to hate his wife and due to this he bequeathed all his movables and schedule properties infavor of the plaintiff. The defendant did not even visit the testator when he was admitted in the hospital and did not want her husband during his difficult times of his illness and 33 O.S.No.1397/2012 death, but now wants to enjoy his property.
32. It is submitted with particular reference to the allegation made in the written statement as follows:
The allegation made in para 1 of the written statement to the effect that the above suit is filed seeking probate of the last Will and testament dated 25/08/2009 is a matter of record.
33. The allegation made in para 2 of the written statement to the effect that the above suit is filed seeking to prove the last Will and testament dated 25/08/2009 of late. M. Saindran and for grant of probate by suppressing material facts is wholly false and hereby denied as false. The further allegation in the said paragraph that the marriage of the defendant with the brother of the plaintiff has taken place on 29/01/2001 and the same was arranged marriage and from their wedlock two children namely Master Dananjay and Kum. Srimayi were born on 07/08/2002 and 04/10/2005 34 O.S.No.1397/2012 respectively is true.
34. The allegation made in para 3 of the written statement are all false and the same are hereby denied as false and therefore the defendant is put to strict proof of the same.
35. The allegation made in para 4 of the written statement are denied as false and defendant is put to strict proof of the same. The allegation made in para 5 of the written statement to the effect that the defendant was unable to tolerate, torture and harassment and went back to her parents house on 17/03/2009 and even thereafter her husband and the plaintiff started haunting her wherever she go is wholly false and the defendant is put to strict proof of the same. The other allegations in the said paragraph of the written statement as to the filing of MC No.1337/2009, PCR No.7493/2009 and Crl.Misc. No.713/2009 are matter of record. The allegation made 35 O.S.No.1397/2012 in para 6 of the written statement that the defendant's husband was a chronic alcoholic who used to drink right from the morning and was a puppet in the hands of his sister i.e the plaintiff is wholly false and the defendant is put to strict proof of the same. The further allegation that the plaintiff being a doctor instead of advising her brother not to drink alcohol was encouraging him which ultimately resulted in the developing Liver disease her husband started to suffer because of this aliment is wholly false. The allegation that since the Liver disease of her husband becoming chronic and as he was having blood pressure was admitted to St. John's Hospital, Bangalore on 05/08/2009 and was discharged on 09/08/2009 wherein it was diagnosed to be Cirrhosis of Liver and acute renal failure is a matter of record. The allegation made in para 7 of the written statement that the defendant's husband was again hospitalized on 17/08/2009 and was discharged on 23/08/2009 to treat 36 O.S.No.1397/2012 the very same decease may be true. The allegation that in the discharge summary it is mentioned that "the patient had altered behavior and could not find his way to the toilet" is not admitted to be true and correct. Infact, in the same discharge summary under the heading "course in hospital and brief details of treatment" it was opinion of the doctor that "patient improved and is discharged with advice to follow up after 1 week". Mr.Saindran was discharged from the hospital on 23/08/2009 and he was normal as per report/discharge summary. The further allegation that under these circumstances when the husband of the defendant was not in a position to know what was happening around him is wholly false. Infact, the discharge summary itself discloses that he was normal and improved, and therefore the hospital authorities have discharged him with the advice to follow up after 1 week. Further the allegation that he had executed 37 O.S.No.1397/2012 registered Will on 25/08/2009 is a matter of record. The further allegation that the deceased has not executed the said Will in a sound state of mind and is forcibly got executed by the plaintiff is wholly false. The allegation made in para 8 of the written statement are totally false. The allegation made in para 9 of the written statement that within 10 days after executing the Will again the husband of the plaintiff was hospitalized at St.John's hospital on 05/09/2009 and was discharged on 09/09/2009 is a matter of record. The further allegation that her husband was totally unwell of Liver disease and was suffering from total abdominal discomfort and was admitted to BGS Global Hospital on 05/11/2009 and later died on 15/01/2009 is a matter of record. The further allegation that all the above said facts clearly confirm that on the date of execution of Will, her husband's condition was not good and he was totally unwell and did not had the sense to what exactly was 38 O.S.No.1397/2012 happening in and around him is totally false. The allegation made in para 10 of the written statement are totally false and the defendant is put to strict proof of the same. The allegation made in para 11 of the written statement that the Will executed by the deceased infavor of his sister is only under pressure and coercion etc is totally denied as false. The allegation made in para 12 of the written statement that the plaintiff has forcibly retaining her son on the pretext that she would give him good education and she is taking undue advantage of the Will and the said Will do not say anything about testamentary guardianship etc are all denied as false. The other allegations made in the said paragraph are hereby denied as false. The averments in para 13 and 14 of the written statement are absolutely false. The allegations in para 15 of the written statement that the defendant had filed a suit challenging the Will before this court and she was 39 O.S.No.1397/2012 unable to pay the court fee she had filed a proper Miscellaneous and the said pliant has got registered is not within the knowledge of this plaintiff. All other averments made in the written statement which are contrary to the case of the plaintiff and which are contrary to the averments of the re-joinder statement and those which have not been specifically traversed herein are hereby denied as false.
36. Subsequent, to the conversion of P and SC proceedings into the original suit, based on the rival pleadings of the parties the predecessor of this court has framed the following issues:-
1. Whether the plaintiff proves that the registered Will dated 25/08/2009 had been duly executed by Late. M. Saindran?
2. Whether the defendant proves that the plaintiff does not have any right over the property left behind by late Sri.M. Saindran?
3. Whether the plaintiff is entitled to grant of probate of the Will as prayed for? 40
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4. What order or decree?
37. In order to prove the case of the plaintiff, the plaintiff herself has been stepped into the witness box and filed affidavit and additional affidavits in lieu of examination in chief and examined as PW.1. Ex.P.1 to 21 documents are marked. One. G.K. Gopinath who is said to be the witness to the Will has been examined as PW.2 and Ex.P.1(a), 2(a), 13(a) and 13(b) are marked through him. Similarly, the defendant has been examined as DW.1 by filing examination in chief affidavit and additional affidavit and Ex.D.1 to 35 documents are marked. One Dr. Malikarjun of St.John's Hospital has been examined as DW.2 but no documents are marked through him.
38. The counsel for the plaintiff has placed reliance on the following rulings;
1. AIR (1988) SCC Online KAR 53 in the case of K.S. Mariyappa V/s K.T. 41 O.S.No.1397/2012 Siddalinga Setty
2. MANU/KA/0106-2002 In the case of Vincent Britto V/s Eunice Britto.
3. MANU/DE/3993/2022 decided on 11/10/2022 in the case of Vikrant Kapila and Ors V/s Pankaja Panda and Ors.
4. MANU/KE/0020/2024 In the case of Premakurami R. V/s O.K. Sivasankara Pillai and Ors.
5. (2021) 11 SCC 209 in the case of Kavitha Kanwar V/s Pamela Mehta
6. (1995) 4 SCC 459 in the case of Rabindranath Mukarji and another V/s Panchanan Banerji (dead) by LR's and others.
7. MANU/KA/0409/2023 In RFA No.488 and 489/2008 in the case of S. Krishna V/s M.J. Vittal and Others
8. MANU/PH/2986/2015 rendered in RSA No.2580/2012 in the case of Harjinder Kaur and Ors V/s Charanjit Kaur and Ors.
42
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39. The counsel for the defendant has placed reliance on the following rulings and clinical review reports published on 11/08/2015 and 20/11/2018.
1 ILR (2008) KAR 2115 in the case of Sri.J.T. Surappa and Ors V/s Sri. Sachidanendra Saraswati Public Charitable Trust and Ors.
2. AIR (1969) SC 443 in the case H. Venkatachala Iyengar vs B. N. Thimmajamma & Others.
3. AIR (2007) SC 614 in the case of Niranjan Umeshchandra Joshi V/s Mrudula Jyoti Rao & Ors. .
4. AIR (1961) GUJ 196 in the case of Municipal Corporation Of City Of V/s Gandhi Shantilal Girdharlal And Anr.
5. The clinical review published on 11/08/2015 on the concept of Hepatic Encephalopathy.
6. Liver diseases an Overview published on 20/11/2018.
7. Encephalopathy prevention and management report published on 22/12/2021.
40. Both the parties have submitted their written arguments in detail. Having heard the arguments of 43 O.S.No.1397/2012 both side and upon careful perusal of the oral and documentary evidence available on record, now the findings of this court to the aforesaid issues are as under:-
Issue No.1: In the affirmative
Issue No.2: As negative
Issue No.3: In the affirmative
Issue No.4: As per the final order, for
the following;-
REASONS
41. Issue No.1 and 2: Since these two issues
are intrinsically interconnected, they are taken up together for discussion in order to avoid the repetition of law and the alleged facts.
Initially the plaintiff herein has filed a petition in P and SC No.195/2010 and on contest, the same was converted as the original suit. The case of the plaintiff in brief is that she is the biological sister of Sri.M. Saindran Son of Sri. S.S. Mani who belonged to Hindu 44 O.S.No.1397/2012 Religion. The deceased Saindran was an advocate by profession and was resident of Bangalore and his fixed place of residence was Bangalore who died on 15/11/2009 at Bangalore within the jurisdiction of this court. The said Saindran died leaving behind his last Will and testament dated 25/08/2009 which was registered in the office of the Sub-registrar, Indiranagar Bangalore. The said Will dated 25/08/2009 was duly executed by the aforesaid testator in a sound state of mind and body in the presence of the witnesses whose names and signatures are found at the last page of the aforesaid Will and testament dated 25/08/2009. It is the further case of the plaintiff that the plaintiff herein has been constituted and appointed as the sole executor of the said last Will and testament. Apart from the last Will and testament dated 25/08/2009 the testator had made Wills dated 30/12/2001 and 15/10/2002 which stood revoked by the Will dated 45 O.S.No.1397/2012 25/08/2009. Under the said last Will and testament, the testator has bequeathed the immovable properties infavor of the plaintiff herein and therefore the plaintiff is entitled to grant of probate in respect of the Will dated 25/08/2009. Accordingly, plaintiff prays to grant probate.
42. The defendant has filed detailed written statement contending that she is the legally wedded wife of deceased M.Saindran, their marriage was performed on 29/01/2001 and from their wedlock two children's were born. The plaintiff has filed the above suit suppressing the material facts. The said M.Saindran was a chronic alcoholic used to drink right from the morning and used to be puppet in the hands of his sister i.e the plaintiff, which ultimately resulted in Liver disease and the same became chronic and he was admitted in the St. John's Hospital for treatment on three occasions. The testator was not in a sound state 46 O.S.No.1397/2012 of mind at the time of alleged execution of the Will and there exists suspicious circumstances surrounding the execution of Will. It is the further case of the defendant that her husband was suffering from hepatic Encephalopathy and therefore the alleged Will was executed not in a sound state of mind and therefore, she prays to dismiss the suit.
43. In order to prove the case of the plaintiff she herself has been stepped into the witness box and filed examination in chief affidavit and additional affidavits by reiterating the averments of the plaint and the re- joinder statement. Ex.P.1 is the Handwritten Will dated 30/12/2001. Ex.P.2 is the Will dated 15/10/2002. Ex.P.3 is the Petition copy in Crl.Mis.No.713/2009 filed by the defendant against her husband and the plaintiff herein. Ex.P.4 is the Order sheet in Crl.Misc No.713/2009 filed by the defendant against her husband and plaintiff. Ex.P.5 is the Copy of the PCR No.7493/2009 filed by the 47 O.S.No.1397/2012 defendant against her husband and plaintiff. Ex.P.6 is the certified copy of the order passed in Crl.P.No.960/2010. Ex.P.7 is the certified copy of the petition filed by the defendant seeking for divorce in MC No.1337/2009. Ex.P.8 is the certified copy of the Judgment in G and WC No.199/2012. Ex.P.9 is the Medical certificate dated 25/08/2009 issued by one Dr. Harshad Devarbhavi. Ex.P.10 to 12 are the RTI application, B report and receipt. Ex.P.13 is the Registered Will dated 25/08/2009. Ex.P.14 is the Death certificate of the Saindran i.e the alleged testator of the Will. Ex.P.15 is the Newspaper publication. Ex.P.16 is the EC. Ex.P.17 is the pay of statement, payment receipt and bank statement. Ex.P.18 is the Letter issued by the bank. Ex.P.19 is the letter written to the bank. Ex.P.20 is the Letter dated 28/09/2006 issued by Jain Housing and Construction Ltd. Ex.P.21 is the Examination in chief affidavit and deposition of A.A. 48 O.S.No.1397/2012 Ramachandran filed in G and WC 199/2012.
44. The sole defendant has been stepped into the witness box and filed affidavit in lieu of examination in chief and also filed additional affidavits by reiterating the averments of the written statement. Ex.D.1 is the examination in chief affidavit filed in G and WC No.292/2009. Ex.D.2 is the release deed dated 25/08/2009. Ex.D.3 is the Copy of the complaint dated 05/06/2008. Ex.D.4 is the certified copy of the sale deed dated 13/08/2004. Ex.D.5 is the Encumbrance certificate. Ex.D.6 is the Certified copy of the orders passed in Crl.Misc.No.713/2009. Ex.D.7 is the certified copy of the petition filed by the defendant under Sec.12 of the Domestic Violence Act. Ex.D.8 is the entire order sheet pertaining to PCR No.7493/2009. Ex.D.9 is the Charge sheet filed against the plaintiff and her brother i.e deceased Saindran. Ex.D.10 is the certified copy of the FIR registered against deceased Saindran and the 49 O.S.No.1397/2012 plaintiff herein for the offences punishable under Sec.120 B, 426, 498-A and 506 of IPC. Ex.D.11 is the certified copy of the PCR No.7493/2009 registered by the defendant against the plaintiff and her brother. Ex.D.12 is the order sheet pertaining to Crl.Misc.713/2009. Ex.D.13 is the certified copy of death certificate of M.Saindran. Ex.D.14 is the discharge summary of deceased Saindran. Ex.D.15 and 16 are discharge summary of deceased M.Saindran. Ex.D.17 is the death summary of the said M.Saindran. Ex.D.18 is the certified copy of the genealogical tree of family of S.S. Mani. Ex.D.19 to 21 are the statements given by the defendant to the Halsurgate Police. Ex.D.22 is the complaint dated 09/04/2009 lodged by the defendant to the president human commission, Bangalore. Ex.D.23 is the order sheet pertaining to MC No.2283/2009. Ex.D.24 is the certified copy of the petition filed by M.Saindran for 50 O.S.No.1397/2012 restitution of conjugal rights under Sec.9 of the Hindu Marriage Act. Ex.D.25 is the verifying affidavit filed in the MC petition. Ex.D.26 is the endorsement issued by the Pulkeshinagar Police Station. Ex.D.27 is the endorsement dated 22/05/2010. Ex.D.28 is the certified copy of the plaint filed in OS No.7917/2009. Ex.D.29 is the verifying affidavit filed in OS No.7917/2009. Ex.D.30 is the copy of the complaint dated 14/05/2010 lodged by the defendant. Ex.D.31 is the certified copy of the examination in chief affidavit filed by the plaintiff herein in G and WC No.199/2012. Ex.D.32 is the Deposition of the plaintiff in G and WC No.199/2012. Ex.D.33 is the certified copy of the complaint lodged by the defendant herein. Ex.D.34 is the acknowledgment for having received the said complaint. Ex.D.35 is the copy of the sale deed dated 01/11/2009.
45. Now, with this evidence, it is to be seen whether the plaintiff is able to prove her case by 51 O.S.No.1397/2012 preponderance of probabilities. In view of Sec.101 and 102 of Indian Evidence Act the burden of proving the issues lies on the plaintiff. As could be seen from the Will Smt. Radhikadevi, the plaintiff herein has been appointed as executor, who is also beneficiary to the Will. The relationship between the parties is not in dispute. The plaintiff is the sister of deceased M. Saindran. The defendant is his wife. The death of M. Saindran is also not in dispute. Ex.P.14 is the death certificate of M. Saindran which discloses that he died on 25/11/2009. Ex.P.1 is the Will dated 30/12/2001 alleged to have been executed by M. Saindran bequeathing the schedule properties. Ex.P.2 is the Will dated 15/10/2002. The 1st Will is said to be written in the handwriting of deceased M. Saindran. Ex.P.3 is the certified copy of the Crl.Misc Petition filed by the defendant under Sec.12 of the Domestic Violence Act 2005. As could be seen from the Ex.P.3 the defendant 52 O.S.No.1397/2012 has made certain allegations against her husband i.e M. Saindran. Ex.P.4 is the order sheet pertaining to the Crl.Misc.No.713/2009. Ex.P.3 also discloses that the defendant had lodged complaint against her husband to the Halsurgate Police station. The said complaint is lodged against both the plaintiff and her brother. The Domestic Violence proceedings were initiated by the defendant against both the plaintiff and her brother. Ex.P.5 is the certified copy of the complaint registered in PCR No.7394/2009. The said complaint was registered by the defendant herein against the plaintiff and her brother M. Saindran. The said complaint was registered for the offences punishable under Sec.120 B, 426, 498-A and 506 of IPC. Combined reading of Ex.P.3 to 5 documents would go to show that the defendant herein had initiated the proceedings under Indian Penal Code and under Domestic Violence Act 2005. 53
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46. Ex.P.6 is the certified copy of the order passed in Crl.P.No.960/10 which discloses that the proceedings initiated against the plaintiff for the offences punishable under Indian Penal Code was quashed by the Hon'ble High Court. Ex.P.7 is the certified copy of the MC.No.1337/2009 which was registered by the defendant against the plaintiff seeking for the relief of dissolution of marriage. As could be seen from Ex.P.7 certain allegations of cruelty and harassment was made against the husband of the defendant i.e M. Saindran. The said petition for divorce was filed on 11/05/2009. The documents produced at Ex.P.3 to 7 makes it clear that the relationship between the testator and the defendant herein was strained due to the criminal proceedings initiated by the defendant.
47. Ex.P.8 is the Judgment passed in G and WC No.199/2012 which discloses that the said petition was filed by the defendant herein seeking for custody of her 54 O.S.No.1397/2012 child aged about 10 years at the time of the said petition. The said petition so filed by the defendant came to be dismissed. In the judgment at paragraph No.13 it is specifically observed that the court was interacted with the child- Dananjaya and during the interaction he expressed his hateredness towards his mother because he had seen the torture that was given by his mother to his father during his last days and he had seen that the defendant herein has filed number of cases one after one against his father. The observation made by the learned 5th Additional Principal Judge court at paragraph No.13 of Ex.P.8 corroborates the case of the plaintiff that all was not well between the deceased and the defendant herein.
48. Ex.P.13 is the registered Will dated 25/08/2009 alleged to have been executed by M. Saindran bequeathing the schedule properties to the plaintiff. The said document is registered in the office 55 O.S.No.1397/2012 of Sr. Sub-registrar, Indiranagar Bangalore. The plaintiff is the Propounder of the Will. According to the plaintiff the testator was in a sound state of mind at the time of executing the Will and there exists no suspicious circumstances surrounding the execution of the Will. The defendant has contended that the alleged Will is not executed as required under Sec.63 of the Indian Succession Act and 68 of the Indian Evidence Act. It is further argued by the counsel for the defendant that the deceased has wife and children who are entitled to succeed the property of deceased and no reasons are given for exclusion of the legal heirs while bequeathing the properties. It is further argued that Will is surrounded by many suspicious circumstances including the fact that the deceased was not in a sound state of mind at the time of execution of the same. It is also argued that the testator was a chronic alcoholic and addicted to alcohol and due to the same his health 56 O.S.No.1397/2012 was totally deteriorated resulting in hepatic Encephalopathy and therefore, the claim of the plaintiff is liable to be dismissed.
49. Sec.2(h) of the Indian Succession Act 1925 defines the "Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. The Hon'ble High Court of Karnataka in a ruling reported in ILR (2008) KAR 2115 between J.T. Surappa and Another V/s Sri. Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and Others held that a careful path in the enquiry to be conducted with regard to Will and the path consists of 5 steps "Panchapadhi". The path of enquiry and steps to be traversed are as under:-
1) Whether the Will bears the signature or mark of the testator and is duly attested by two witnesses and whether any attesting witness is examined to prove the 57 O.S.No.1397/2012 Will?
(2) Whether the natural heirs have been disinherited? If so, what is the reason? (3) Whether the testator was in a sound state of mind at the time of executing the Will?
(4) Whether any suspicious circumstances exist surrounding the execution of the Will? (5) Whether the Will has been executed in accordance with Section 63 of the Indian Succession Act, 1925, read with Section 68 of the Evidence Act?
50. Now, it is to be seen whether the Will bears the signature or mark of the testator and is duly attested by two witnesses and whether any attesting witness is examined to prove the Will. Sec.63 of the Indian Succession Act 1925 mandates that the Will shall be attested by two or more witnesses. Sec.68 of the Indian Evidence Act provides as to proof of execution of document required by law to be attested, which reads 58 O.S.No.1397/2012 as under:-
If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence :
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
51. Sec.69 of the Evidence Act provides as to proof of Will where no attesting witness found. Now, keeping in view the provisions of Indian Succession Act and Sec. 68 of the Indian Evidence Act, it is to be seen, whether the propounder of the Will has examined any witnesses to the Will in compliance of the said provisions. One Gopinath has been examined as PW.2 59 O.S.No.1397/2012 who filed examination in chief affidavit contending that Late.Sri.M. Saindran had executed handwritten Will dated 30/12/2001 at his residence and he has signed it as one the witness to the said Will. The said Saindran executed and signed the said Will in his presence and another witness by name Smt. Lakshmi S.B. He also deposed that the deceased had executed a Will dated 15/10/2002 at his residence bequeathing the properties to the plaintiff, in his presence. At paragraph No.4 of the examination in chief affidavit he has stated about the last Will and testament dated 25/08/2009, his presence at the Sub-Registrar office and he signed it as a witness to the said Will and the testator has also signed the Will in the presence of witnesses. PW.2 was subjected to lengthy cross examination by the counsel for the defendant. In the course of cross examination though he admits the suggestion put forth by the defendant that the testator had love and affection 60 O.S.No.1397/2012 towards his wife and children and further admits the suggestion that he signed Ex.P.13 the Will upon the request of the plaintiff, he denies the suggestion that the Will was executed involuntarily and also denies the suggestion that no Will was executed on 25/08/2009 by deceased M.Saindran. In the cross examination he also deposes that he signed only the Will. He denies the suggestion that he signed the Will and deposed evidence at the behest of the plaintiff. PW.2 is also witness to Ex.P.1 and 2 Wills. Though Ex.P.1 and 2 are not the subject matter of the present suit, there is a specific pleadings in the petition and reference in Ex.P.13 Will as to the previous Wills and its revocation. There is a reference in Ex.P.13 as to the revocation of previous Wills i.e Ex.P.1 and 2. Ex.P.1 is a Handwritten Will. The defendant has not specifically denied Ex.P.1 and 2. However, in the course of cross examination suggestions were put forth to PW.1 and 2 denying the 61 O.S.No.1397/2012 very execution of previous Wills. Ex.P.1 is of the year 2001. Ex.P.2 is of the year 2002. The marriage of the defendant with the deceased M.Saindran was performed in the year 2001. The defendant has not specifically denied the handwriting of the testator found in Ex.P.1. In Ex.P.2 there are specimen signatures. The signature of the testator found in Ex.P.1 and 2 are tallied with Ex.P.13.
52. A Will has to be proved like any other documents, the test to be applied being the usual test of satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of Wills one cannot insist on proof with mathematical certainty. On and often it is held by the Hon'ble Supreme Court that Will is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied. 62
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53. In the instant case, as discussed herein above, PW.2 is a common witness to all the Wills including Ex.P.13 the Will dated 25/08/2009. Ex.P.13 is attested by two witness as required under Sec.63 of Indian Succession Act. The propounder of the Will has examined PW.2 in compliance of Sec.68 of the Indian Evidence Act. Absolutely, there is nothing on record to dis-believe the evidence of PW.2. Hence, this court is of the considered opinion that the Will is attested by two witnesses and one attesting witness has been examined in compliance of Sec.68 of Indian Evidence Act.
54. Now, it is to be seen, whether the natural heirs have been disinherited and if so, what is the reason. Admittedly, the defendant is the wife of the testator and she has got two children. At paragraph No.18 of the Will a detailed reasons for excluding legal heirs and reasons as to why the Will was executed 63 O.S.No.1397/2012 infavor of the plaintiff is given. The object and intention of the testator has to be given importance while interpreting the Will. As could be seen from paragraph No.18 the testator has expressed serious apprehension as to the welfare of his children in the hands of the defendant. Even there is a recital in the Will to the effect that the childrens will be given in adoption to the plaintiff by legal means in order to protect their interest and welfare. Serious allegations are leveled against the defendant herein. It is also alleged in the said Will that the defendant herein has miserably failed to take care of the deceased during his last days that too when he was battling for life. As discussed herein above, the court has no option except to give credence to the Will. In other words, the intention of the testator has to be given much more importance. The court cannot re- write the document or instrument. On plain reading of Ex.P.13 the Will it is crystal clear that the testator 64 O.S.No.1397/2012 keeping in mind the difficulties that he had faced and the criminal proceedings initiated against him by the defendant, voluntarily and willfully executed the Will in question bequeathing the schedule properties to the plaintiff.
55. As could be seen from the Will, there is a recital to the effect that the plaintiff being the sole executrix and beneficiary is at liberty to give the property bequeathed, to the children of the deceased. On plain reading of the Will it appears that the testator has expressed apprehension of snatching the properties by the family members of the defendant's parental side if the present Will is not executed. The recital and wordings in the Will is clear and unambiguous which reflects the very intention of the testator to bequeath his property to his biological sister who stood with him for his up-liftment and who was taken care of his family subsequent to death of the 65 O.S.No.1397/2012 parents of testator.
56. The defendant has contended that Ex.P.9 medical certificate, is created by the plaintiff for the purpose of this case. Admittedly, plaintiff is a doctor by profession. Ex.D.14 to 16 discharge summaries would disclose that Mr.Saindran was suffering from Hepatic Encephalopathy. Ex.P.9 alleged to have been issued on 25/08/2009 discloses that the testator had no Encephalopathy. as on the date of the Will. Ex.P.9 is issued on the date of the execution of the Will. PW.1 deposes about sound state of mind of the testator. PW.2 the witness to the will also denies the suggestions put-forth by the counsel for the defendant. No doubt, the doctor who issued Ex. P.9 is not examined by the propounder of the Will. Merely for the reason that the doctor who treated the diseased is not examined, the court cannot presume the absence of sound state of mind at the time of execution of the Will. Non 66 O.S.No.1397/2012 examination of the doctor is one of the circumstances to disbelieve Ex.P.9 but that itself cannot be a ground to ignore the certificate itself. Even otherwise, certificate as to the sound state of mind is not mandatory to the testator to execute the Will. As per the provisions of the contract Act a person who is usually 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 un-sound mind. In the instant case, the testator was an advocate by profession and highly educated person. His intention to bequeath the properties by executing Will right from 2001 is clear from Ex.P.1, 2 and 13, the Wills. The defendant neither disputed the handwriting of the testator in Ex.P.1 nor sought for examination of the handwritten Will by handwriting expert. With abundant caution he obtained certificate as per Ex.P.9. 67
O.S.No.1397/2012 Even ignoring the certificate it can be concluded that the deceased had sound state of mind at the time of execution of Ex.P.13.
57. The key principle in interpreting a Will is to give effect to the testator's wishes. Regardless of how clumsily worded a will may be, the court aims to understand the true intention of the testator from the language used in the document, ensuring that the testator's wishes are carried out. As discussed herein above, on plain reading of the Will marked at Ex.P.13 the intention of the testator to bequeath the property to the plaintiff is clear and unambiguous. It is vehemently argued by the counsel for the defendant that the deceased was a chronic alcoholic and suffering from severe Hepatic Encephalopathy and therefore, he could not have executed the Will in question. Hepatic Encephalopathy is an altered level of consciousness as a result of Liver failure. Its onset may be gradual or 68 O.S.No.1397/2012 sudden. Hepatic Encephalopathy is brain dysfunction caused by liver dysfunction. Hepatic means liver related. Totally it is decease of the brain especially one involving alterations of brain structure. Even on careful perusal of the discharge summaries marked at Ex.D.14 to 16 it could be seen that since the patient recovered from the decease he discharged from hospital with an advise of follow-up treatment. No doubt, Ex.P.14 discloses that he was admitted in the St.john's hospital from 05/08/2009 to 09/08/2009. Ex.D.15 discloses that he was hospitalized from 17/08/2009 to 23/08/2009. Similarly, Ex.D.16 the discharge summary would go to show that the testator was admitted in the hospital from 05/09/2009 to 09/09/2009. Merely because the testator was admitted in the hospital for a few days, it cannot be presumed the absence of sound state of mind that too in the absence of cogent and corroborative evidence to that effect. 69
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58. It is suffice to discuss here the evidence of DW.2 Dr. Mallikarjun. In the examination in chief he has deposed as to the admission and discharge of the deceased Saindran. He deposes that as per Ex.D.14 to 16 the patient was discharged as he was recovered from Encephalopathy. He also stated that when the patient is suffering from Encephalopathy he will not have judgmental power, once he get recovered he will be normal. He was subjected to lengthy cross examination by the counsel for the defendant. In the course of cross examination dated 05/10/2023 the counsel for the defendant himself made a suggestion to the effect that as per Ex.D.14 at the time of discharge of the M.Saindran Hepatic Encephalopathy got improved thus the patient was discharged. Combined reading of Ex.D.14 to 16 makes it clear that Encephalopathy is infrequent one.
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59. The counsel for the defendant has placed reliance on the ruling of Hon'ble High Court reported in ILR (2008) KAR 2115 wherein at paragraph No.24 reiterated the steps to be followed by the courts while examining the execution of Will. The learned counsel also placed reliance on the land mark judgment of Hon'ble Supreme Court reported in AIR 1959 SC 443 in the case of Venkatachala Iyengar V/s B.N. Timmajamma it is held that "Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of Wills the court will start on the same enquiry 71 O.S.No.1397/2012 as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free Will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law". Therefore, the burden of proof of execution of Will lies upon the propounder of the Will i.e, the plaintiff.
60. In yet another ruling reported in AIR (2007) SC 614 it is held that the absence of giving reasons as to why the testator had chosen to bequeath the property taking entire benefit has to be explained by the propounder of the Will. In AIR (1961) GUJ 196 in 72 O.S.No.1397/2012 the case of Municipal Corporation of City of Allahabad it is held by the Hon'ble High Court that the certificate in the absence of examination of the doctor who issued the same, cannot be considered.
61. it is suffice to discuss here that one A.A. Ramachandran has deposed his evidence in G and WC No.199/2012. In the said petition he was examined as RW.3. The said examination in chief affidavit and the cross examination portion of the witness is marked as Ex.P.21. The said A.A. Ramachandran is also attesting witness to Ex.P.13 the Will. Admittedly, he is no more. On careful reading of Ex.P.21, it appears that the said A.A. Ramachandran categorically admits the execution of the Will marked at Ex.P.13 and his signature. The said witness was subjected to cross examination in the said P and SC proceedings. The Hon'ble Supreme Court in V.M. Mathew's V/s S. Sharama (1995) 6 SCC 122 (AIR 1996 SC 109) held that in view of the second 73 O.S.No.1397/2012 proviso of Sec.33 of the Indian Evidence Act, evidence of a witness in a previous proceedings would be admissible under Sec.33 of the Act only if the adverse party in the 1st proceeding had the right and opportunity to cross examine the witness. Combined reading of Sec.33 of the Indian Evidence Act and the ruling cited supra, it is crystal clear that evidence of a witness in a previous proceeding would be admissible under Sec.33 of the Act only if the adverse party in the 1st proceeding had the right and opportunity to cross examine the witness. In the instant case, the said A.A. Ramachandran was examined as RW.3 and subjected to lengthy cross examination by the other side in the P and SC proceedings. Hence, this court is of the considered opinion that Ex.P.21 the deposition of the attesting witness is admissible and can be relied upon in the present case. That apart, even on comparison of the signatures in the naked eyes, it appears to this 74 O.S.No.1397/2012 court that the signature found in Ex.P.13 the Will and the signature of said A.A. Ramachandran appears to be one and the same. Hence, this court is of the considered opinion that the deposition of the said A.A. Ramachandran given in P and SC 199/2012 further strengthens the case of the plaintiff and the said document can be considered as a corroborative piece of evidence.
62 No doubt, registration of the Will is not must. It is optional. In AIR 1962 SC 567 in the case of Rani Purnima Debi and Another V/s Kumar Khagendra Narayana Deb and another it is held by the Hon'ble Supreme Court that 'if a will has been registered, that is a circumstance which may, having regard to the circumstances, proves 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 75 O.S.No.1397/2012 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. 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 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.
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63. In the case of Gnambal Ammal V/s T. Raju Iyer and others reported in AIR 1991 SC 103 it is held that the cardinal maxim to be observed by courts in construing a Will is to endeavor to ascertain the intention of the testator. This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised. In construing the language of the Will, the courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use the words in a particular sense, and many other things which are often summed up in somewhat picturesque figure. The court is entitled to put itself into the testator's arm chair. But, all this is solely as an 77 O.S.No.1397/2012 aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by particular testator in that document. So soon as the construction is settled, the duty of the court is to carry out the intentions as expressed, and none other. The court is in no case justified in adding to testamentary dispositions. In all cases, it must loyally carry out the Will as properly construed, and this duty is universal, and is true alike of Wills of every nationality and every religion or rank of life."
64. Similarly, in the case of PPK Gopalan Nambiar vs PPK Balakrishnan Nambiar And Ors reported in AIR (1995) SC 1852 it is held that discrepancy in evidence of attestor would not vitiate validity of the registered Will which was duly endorsed by Registrar. Whole of estate given to son in exclusion of daughter not itself sufficient to generate suspicion. The Hon'ble Supreme Court in a ruling reported in the case of Swarnalatha 78 O.S.No.1397/2012 and Others V/s Kalavathy and Others (2022 Live Law SC) 328 at paragraph No.21 and 25 it is held that the exclusion of one of the natural heirs from the bequest, cannot by itself be a ground to hold that there are suspicious circumstances. Similarly, in the case of Meenapradhan and Others V/s Kamalapradhan and Another at paragraph No.10 the Hon'ble Supreme Court has laid down the principals required for proving the validity and execution of the Will. In a ruling reported in AIR 2018 KAR 100 in the case of Lakshman V/s Basavanni and Another it is held that probate can be granted only to a executor appointed under Will either expressly or under implication. In the instant case, the executor is also beneficiary. The executor appointed may be either a beneficiary to the Will or a third person. A probate can be granted in plea by beneficiary of Will even if no executor has been named. In the case on hand, the executrix is also a beneficiary to the 79 O.S.No.1397/2012 Will. Once proceedings become contentious, it is not open for the court to proceed with matter in summary way and allow parties to prove in common form .
65. At the cost of repetition, it is pertinent to discuss here that the testator has given detailed reasons for exclusion of legal heirs and to execute the Will marked at Ex.P.13. As stated herein above, a list of reasons are detailed in paragraph No.18 of the Will. Foisting of criminal cases by the defendant against the deceased, neglecting him during his last days while he was battling for life and failure of the defendant to visit the hospital when he was admitted in the hospital are some among the reasons for the exclusion of legal heirs. The testator is not an illiterate. He is a highly educated person and advocate by profession. He had aware of the consequences of the execution of the Will bequeathing the properties to his sister. As detailed in the Will, the plaintiff herein had stood with the testator 80 O.S.No.1397/2012 during his difficult days. Liberty is given to the executor to distribute the properties to the children of deceased if wishes to do so. In a ruling reported in (2014) 15 SCC 570 The Hon'ble Supreme Court has held that participation of beneficiary in the execution of Will would not necessarily lead to adverse conclusion and exclusion of sons is not a suspicious circumstances when reasons for the exclusion apparent from the Will itself. The wordings narrated in the Will are unambiguous and clear. The court has to interpret the Will keeping in view the intention of the testator. The provisions of the Indian Succession Act and Sec.68 of the Indian Evidence Act is duly complied with. There is a specific recital in the Will that Ex.P.13 is the last Will of the testator. The deceased at the time of his death had a fixed place of abode within the jurisdiction of this court. The subject matter of the Will i.e the properties are situated within the jurisdiction of this court. As per 81 O.S.No.1397/2012 Sec.2(f) of the Indian Succession Act 1925 Probate means the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator. Sec.289 of Indian Succession Act empowers the court to grant probate of a Will under the seal of the Court. The suit schedule properties that are mentioned in the Will also situated within the jurisdiction of this court. Deceased M. Saindran was also residing within the jurisdiction of this court as on the date of his last breath. The plaintiff has proved that the deceased M.Saindran had executed his last Will dated 25/08/2009 under a sound state of mind and bequeathed the schedule properties infavor of the plaintiff. Hence, the plaintiff is entitled to probate certificate in his favor in terms of the registered Will dated 25/08/2009. Therefore, issue No.1 is answered in the affirmative and issue No.2 as negative. 82
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66. Issue No.3: In view of the foregoing discussion on issue No.1 and 2 and the findings thereon, this court is of the considered opinion that the plaintiff is entitled to grant of probate of the Will as prayed for. Accordingly, issue No.3 is answered in the affirmative.
67. issue No.4: In the result, this court proceeds to pass the following;
ORDER The suit of the plaintiff is decreed with costs.
Petition filed by the plaintiff/ petitioner under Sec.276 of the Indian Succession Act is hereby allowed.
Issue probate of the Will as contemplated in schedule VI under Sec.289 of the Indian Succession Act infavor of the plaintiff on the basis of the last Will dated 25/08/2009 executed by deceased M. Saindran in respect of immovable properties mentioned in schedule to the petition bequeathed under Ex.P.13- Will.
83
O.S.No.1397/2012 Draw decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 13th day of August, 2024.) (DODDEGOWDA.K) XLIV ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side :
PW.1 Dr. M. Radhika Devi
PW.2 G.K. Gopinath
(b) Defendant's side :
DW.1 S. Sandhya
DW.2 Dr. Mallikarjun
List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Original Will dated 30/12/2001
Ex.P.2 Original will dated 15/10/2002
Ex.P.3 Certified copy of the complaint in
C.Misc.713/2009
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Ex.P.4 Certified copy of the order sheet in
C.Mis.170/2011
Ex.P.5 Certified copy of the complaint in PCR
No.7493/2009
Ex.P.6 Certified copy of order in
C.P.No.960/2010
Ex.P.7 Certified copy of the memorandum of
petition in M.C.1337/2009
Ex.P.8 Certified copy of order in sheet in
M.C. No.1337/2009. Certified copy of the Judgment in G&WC. No. 199/2012 Ex.P.9 Original medical certificate dated 25/8/2009 Ex.P.10 Copy of letter written Sub Inspector dated 15/7/2009 to D.C.P., Bengaluru West Ex.P.11 Copy of B final report Ex.P.12 Receipt dated 28/7/2009 Ex.P.13 Certified copy of Will dated 25/8/2009 Ex.P.14 Death certificate of Saindran Ex.P.15 The Hindu Newspaper dated 21/8/2010 Ex.P.15 (a) Relevant portion Ex.P.16 Certified copy of encumbrance certificate Ex.P.17 Three bank statements Ex.P.18 & 19 Two letters issued by City Bank and City Financial and 85 O.S.No.1397/2012 Ex.P.20 Certified copy of letter of settlement issued by developer Ex.P.21 Certified copy of the examination in chief affidavit and Deposition of one A.A Ramachandran, in G& WC 199/2012 .
(b) Defendants' side :
Ex.D.1 Examination in chief affidavit filed in
G and WC No.292/2009
Ex.D.2 Release deed dated 25/08/2009
Ex.D.3 Copy of the complaint dated
05/06/2008
Ex.D.4 Certified copy of the sale deed dated
13/08/2004
Ex.D.5 Encumbrance certificate
Ex.D.6 Certified copy of the orders passed in
Crl.Misc.No.713/2009
Ex.D.7 Certified copy of the petition filed by
the defendant under Sec.12 of the
Domestic Violence Act
Ex.D.8 Entire order sheet pertaining to PCR
No.7493/2009
Ex.D.9 Charge sheet filed against the plaintiff
and her brother i.e deceased Saindran Ex.D.10 Certified copy of the FIR registered Ex.D.11 Certified copy of the PCR No.7493/2009 Ex.D.12 Order sheet pertaining to Crl.Misc.713/2009 86 O.S.No.1397/2012 Ex.D.13 Certified copy of death certificate of M.Saindran Ex.D.14 Discharge summary of deceased Saindran Ex.D.15 & 16 Discharge summaries of deceased M.Saindran Ex.D.17 Death summary of the said M.Saindran Ex.D.18 Certified copy of the genealogical tree of family of S.S. Mani Ex.D.19 to 21 Statements given by the defendant to the Halsurgate Police Ex.D.22 Complaint dated 09/04/2009 lodged by the defendant to the president human commission, Bangalore Ex.D.23 Order sheet pertaining to MC No.2283/2009 Ex.D.24 Certified copy of the petition filed by M.Saindran for restitution of conjugal rights under Sec.9 of the Hindu Marriage Act Ex.D.25 Verifying affidavit filed in the MC petition Ex.D.26 Endorsement issued by the Pulkeshinagar Police Station Ex.D.27 Endorsement dated 22/05/2010 Ex.D.28 Certified copy of the plaint filed in OS No.7917/2009 Ex.D.29 Verifying affidavit filed in OS No.7917/2009.
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Ex.D.30 Copy of the complaint dated
14/05/2010 lodged by the defendant
Ex.D.31 Certified copy of the examination in chief affidavit filed by the plaintiff herein in G and WC No.199/2012 Ex.D.32 Deposition of the plaintiff in G and WC No.199/2012.
Ex.D.33 Certified copy of the complaint lodged herein Ex.D.34 Acknowledgment for having received the said complaint.
Ex.D.35 Copy of the sale deed dated
01/11/2009.
XLIV ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.