Madras High Court
Y. Rajeswari vs V.R.Karthikeyan (Died) on 29 March, 2012
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29/03/2012
C O R A M
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
S.A. No. 560 of 2011
and
M.P.No.1 of 2011
1. Y. Rajeswari
2. M.Vijayalakshmi
3. R. Leelavathy ...Appellants/Plaintiffs
Vs.
1. V.R.Karthikeyan (Died)
2. M. Kannigaparameswari
3. Dr. M.Bhaskar
4. Hemalatha Ravindran
5. M. Vijayakumar
6. R. Subadrabai
7. D. Ravikumar
8. Dr. M.Prabhu
9. K. Vanajakshi
10.K.Santharam
11.K.Chandrasekar
(R9 to R11 brought on record as
Lrs. Of the deceased R1 vide
order of Court dated 15.9.2011
made in M.P.No.2 of 2011
in S.A.No.56 of 2011) ...Respondents/Defendants 2 to 9
Second Appeal has been filed under Section 100 of Civil Procedure Code to set aside the Decree and Judgement made in A.S.No.42 of 2008 on the file of Sub Judge Court, Gudiyatham, Vellore District dated 23.12.2010 and thereby confirm the Decree and Judgement made in O.S.No.217 2004 on the file of the District Munsif Court, Gudiyatham, Vellore District dated 16.6.2008.
For Appellants .. Mr. S. Parthasarathy,
Senior Counsel for
Mr. K.A.Ravindran
For Respondents .. Mr. S.V.Jayaraman,
Senior Counsel for
Mr.R.Karthikeyan
J U D G E M E N T
The plaintiffs in O.S.No.217 of 2004 on the file of the District Munsif Court, Gudiyattam are the appellants.
2. The plaintiffs filed the suit for partition of their 3/8 share in the suit properties claiming that the suit properties belonged to their mother and the mother died intestate leaving behind the plaintiffs, defendants 1 and 2 and four other sons namely Dayalan, Lingesan, Ekanandan and Jagadasethalu Karunyamoorthy. According to the plaintiffs, after the release deeds executed by her brothers relinquishing their shares in the joint property, the mother Govindammal got 1/25 share and she died on 10.3.1985 intestate and therefore they are entitled to 3/8 share in the properties left by the mother. It is further stated that after the death of the mother, on 29.12.1986 Dayalan executed a registered release deed relinquishing his share in favour of his brother Karthikeyan the 2nd defendant and Karunyamoorthy. Another brother Lingesan executed a release deed in favour of the 2nd defendant and Karunyamoorthy and on 13.6.1994 Karunyamoorthy executed a release deed in favour of the 1st defendant Mayakesavan in respect of his property. Ekanandan died in the year 1979 and Karunyamoorthy also died as a Bachelor. The 1st defendant Mayakesavan died on 11.1.2008 leaving behind the defendants 5 to 9 as his legal heirs and the 3rd defendant claims to have purchased the property and other defendants are daughters and they are entitled to 9/40 shares in the properties left by their mother.
3. The defence of the defendants was that Govindammal did not die intestate as alleged by the plaintiffs and she left a Will dated 7.3.1984 bequeathing her share to the defendants 1 and 2 and Dayalan and Karunyamoorthy and that Will was executed by her while she was in a sound and disposing state of mind and the defendants 1 and 2 and other two brothers Dayalan and Karunyamoorthy divided the properties they got under the Will under a registered partition deed dated 8.9.2000 and they are enjoying their respective shares and therefore, the plaintiffs/ appellants have no right over the same. The 3rd defendant claims to have purchased 47 cents out of 2 acres and 16 cents in the 6th item of plaint schedule from the 1st defendant and Karunyamoorthy and claims to be in possession of the property.
4. The trial Court held that the Will was not proved and Govindammal died intestate and hence the appellants and plaintiffs were entitled to 9/40 share. The first appellate Court held that the Will was proved and therefore the plaintiffs cannot claim any share in the properties.
5. The following substantial question of law arises for consideration in this Second Appeal:
Whether the lower appellate Court was right in holding that Ex.B1 Will was validly executed and whether the respondents proved the execution of the Will ?
6. Ex.B1 is an unregistered Will alleged to have been executed by Govindammal and the Will was sought to be proved by examining DW2 and DW3. DW2 is not an attesting witness and DW3 is the attesting witness and DW2 gave in his evidence that the Will was produced by the deceased 1st defendant Mayakesavan in the Panchayat and as per the decision of the Panchayat the Will was handed over to him and on the request of the defendants he produced the Will before the Court. DW3 is the attesting witness who gave evidence that he and other witnesses saw the execution of the Will by the executant Govindammal and at the time of execution of the Will Govindammal was in a sound and disposing state of mind.
7. Mr. S.Parthasarathy, the learned Senior Counsel appearing for the appellants submitted that there is no dispute that Govindammal had 3/8 share in the suit properties and the appellants are entitled to claim 3/8 share belonged to Govindammal and having regard to the admissions and other circumstances, it cannot be stated that the respondents proved the execution of the Will in the manner known to law and the Will cannot be said to be validly executed by examining the attesting witnesses and having regard to the suspicious circumstances, surrounding the execution of the Will, the manner in which the properties of Govindammal were dealt with after the alleged execution of the Will, the time when the Will was made public and the custody from which the Will was produced would all lead to one conclusion that the Will was not executed by Govindammal and it was prepared for the purpose of this case.
8. The learned Senior Counsel further submitted that according to the admission of DW1 and the pleadings, the Will was brought to light only in the year 2000 when dispute arose between the sons of the 2nd defendant and their father and paternal uncles namely the brothers of the appellants and according to the respondents O.S.No.155 of 2000 was filed by the sons of the 2nd defendant for partition against the appellants and their brothers and that suit was not pressed by the sons of the 2nd defendant namely the 1st respondent herein and during the pendency of the said suit the deceased 1st defendant Mayakesavan alleged to have produced the Will and informed the sons of the 2nd defendant namely the respondents 9 to 11 herein who are the Legal Representatives of the deceased 1st respondent and on being satisfied that the properties were bequeathed by the grand mother in favour of their father and their paternal uncles, they did not press the suit by filing a memo and that was known to the plaintiffs who were also parties in that suit and therefore the plaintiffs were aware of the Will and now they cannot dispute the same. The learned Senior Counsel further submitted that no proof regarding the suit filed by the sons of the 2nd defendant/ 1st respondent herein and nobody knows the nature of the suit filed by them and who are the parties in that suit. Further, it is the specific case of the 1st respondent herein who was the 2nd defendant in the suit that only in the year 2000 after the deceased 1st defendant Mayakesavan brought the Will to light before the Panchayat he came to know about the existence of the Will and till such time he was not aware of the Will and the attesting witness DW3 also did not inform anybody about the Will executed by Govindammal.
9. The learned Senior Counsel further submitted that the evidence of DW1 about the production of the Will by Mayakesavan before the Panchayat during the pendency of the suit in O.S.No.155 of 2000 filed by the sons of the 2nd defendant is also contrary to the pleadings of the 2nd defendant/ 1st respondent herein. As per the statement, it is stated that Govindammal died on 10.3.1985 leaving behind the Will dated 7.3.1984 and the Will came into effect from the date of her death and the four brothers who are the legatees under the Will got the properties as per the terms of the Will and there was a partition among the brothers on 8.9.2000 in respect of the properties they got under the Will and on 29.12.1986 Dayalan one of the legatees executed a release deed in favour of the 2nd defendant and Karunyamoorthy another beneficiary and on 27.7.1992 another brother Lingesan executed a release deed in favour of the 2nd defendant and Karunyamoorthy and though Lingesan was not given any property under the Will to avoid any dispute that may arise later, the release deed was obtained from him and on 13.6.1994 Karunyamoorthy also executed a release deed in favour of the 2nd defendant and therefore the 2nd defendant contended in the written statement that he became entitled to > share and the 1st defendant became entitled to < share in the properties under the Will.
10. The learned Senior Counsel further submitted that the alleged deed of partition dated 8.9.2000 was not produced and no reference was made in the release deed dated 29.12.1986 Ex.A4, 27.7.1992 Ex.A5 in favour of the 2nd defendant and Karunyamoorthy as stated above, about the Will dated 7.3.1984 and therefore in the absence of any reference to the Will in the subsequent document and the non-production of partition deed dated 8.9.2000 would only prove that no Will was executed by Govindammal. He further submitted that the attesting witness DW3 purchased the properties under the Will from the 2nd defendant and the same was marked as Ex.A6 and the sale deed is of the year 2002 and therefore to safeguard his purchase he was examined as if he was one of the attesting witness to the Will. Therefore, the learned Senior Counsel submitted that the Will was not proved and no reason was given for exclusion of the daughters and also for exclusion of another son Lingesan and in such circumstances the Will has not been proved.
11. He also relied upon the Judgements reported in 2011 (5) CTC 287 (N.Govindarajan Vs. N.Leelavathy and others), 2011 (5) CTC, 262 (G.Lalitha Vs. G.Ponnurangam and others) and AIR 1940 Madras, 315 (Sadachi Ammal Vs. Rajathi Ammal and others) in support of his contention.
12. He further submitted that admittedly, the Will was not brought to light for nearly 16 years and no reason was stated for keeping the Will in secrecy and when the Will was not made public immediately after the death of testator the Will has to be viewed with suspicion and in this case the circumstances only lead to the conclusion that the Will would not have been executed by the testator and therefore no right can be claimed by the respondents.
13. On the other hand, Mr. S.V. Jayaraman, the learned Senior Counsel appearing for the respondents submitted that though the Will Ex.B1 is an unregistered Will, it has been produced from proper custody by the deceased 1st defendant and DW2 has spoken about the production of the Will by the deceased 1st defendant and merely because the deceased 1st defendant did not inform his brothers who are entitled to equal share with him about their right under the Will, it cannot be a ground to doubt the genuineness of the Will and one of the attesting witnesses namely DW3 was examined and his evidence was not impeached in cross examination and therefore having regard to the evidence of DW2 and DW3 the Will is proved by the respondents and considering the same the lower appellate Court has rightly dismissed the suit. He further submitted that in O.S.No. 155 of 2000 the plaintiffs/ appellants herein were parties and that suit was dismissed as not pressed on the basis of the memo stating that Govindammal died leaving a Will dated 7.3.1984 and therefore the appellants/ plaintiffs were having the knowledge about the Will and despite knowing the fact that Govindammal executed a Will they suppressed the Will and filed the suit for partition and therefore the lower appellate Court has rightly held that the appellants were aware about the Will even in the year 2000 and therefore under the Will they have no claim and rightly dismissed the suit.
14. He also relied upon the Judgement reported in 2002 (1) M.L.J, 749 (Family Manager, Muruga Padayachi Vs. Family Manager, Arumuga Padayachi) to the effect that a Will cannot be rejected on the ground that some legal heirs were not given any property and also relied upon the Judgement reported in 2006 (4) Law Weekly, 24 (Dr.A.Ravikumar Vs. M.Savithiri and others) in support of his contention.
15. Therefore, we will have to see whether the Will has been proved or not. In this case, the 2nd defendant/ 1st respondent herein relied upon the Will and therefore the burden is on him to prove his genuineness of the Will executed by Govindammal. According to his evidence, he came to know about the Will only in the year 2000 when his brother Mayakesavan the 1st defendant in the suit produced the Will before the Panchayat which was convened to settle the difference between the parties due to the pendency of O.S.No.155 of 2000 filed by his sons. It is also not denied that till 2000 his brother Mayakesavan who was having the custody of the Will did not inform him about the Will executed by his mother. This version by the 2nd defendant who was examined himself as DW1 is highly unbelievable. In the written statement he has not stated anything about the production of the Will by deceased 1st defendant in the year 2000 before the Panchayat and that was disclosed only in evidence. On the other hand, in the written statement he admitted that the Will came into force after the death of Govindammal and thereafter they were enjoying the property under the Will and as per the Will one of the legatees Dayalan executed a release deed in favour of himself and Karunyamoorthy, another legatee in respect of his share and Karunyamoorthy also later executed a release deed on 13.6.1994 in his favour and therefore he became entitled to > share in the properties belonging to Govindammal. It is his further case that after coming to know of the Will on 8.9.2000 the four legatees divided the properties they got under the Will under a registered partition deed. Ex.A4 is the release deed executed by Dayalan in favour of Karthikeyan, the 2nd defendant and Karunyamoorthy and in that there was no reference about the Will executed by Govindammal and it was only stated that Govindammal died in the year 1984 and therefore as per the earlier partition deeds and release deeds, the four sons became entitled to the suit properties and his share is relinquished under the document. Ex.A4 is dated 29.12.1986 and that was executed immediately after the death of Govindammal and in that document the Will was not mentioned. Similarly, in Ex.A5 the release deed executed by Lingesan and though he was not one of the legatees, he executed the release deed in favour of the 2nd defendant and Karunyamoorthy and in that release deed also the Will was not mentioned and it is only stated that the properties belonged to Govindammal and after her death it was inherited by Karthikeyan, Karunyamoorthy and Lingesan. Further, no proof was filed about the nature of the suit in O.S.No.155 of 2000 by the sons of 2nd defendant who are impleaded as respondents 9 to 11 in this appeal and the alleged partition deed dated 8.9.2000 was not produced. Therefore, in the absence of any reference to the Will in Ex.A4 and A5 and non-production of partition deed dated 8.9.2000 by which the legatees partitioned the right of their shares and the non-production of the proceedings in O.S.NO.155 of 2000 would lead to suspicion that the Will could not have been executed by Govindammal.
16. We will have to see the evidence of DW2 who spoke about the production of the Will. According to him, Mayakesavan produced the Will alleged to have been executed by his mother Govindammal before the Panchayat that was convened to settle the difference between the sons of the 2nd defendant and his brothers and the Will was entrusted with the custody of the Panchayatars and it was given to him by them and the same was produced. He was not in a position to state the details of the names of the Panchayatars who were present in the Panchayat and what was the decision taken in the Panchayat. He further submitted that the Panchayatars received the Will and they handed over the Will to him and one Parthasarathy was one of the Panchayatars and he handed over the Will to him. If really the Will had come into effect Mayakesavan who was having the custody of the Will would not have kept the Will in secret and he would have also informed the Will to his brothers. Admittedly, till 2000 for 15 years Mayakesavan did not inform the other brothers who are also the legatees under the Will about the Will. Whenever the Will was executed, after the death of the testator the Will must be made public and if there is any delay in the Publication of the Will, the persons who were having the custody of the Will are bound to explain the reason for the delay and also for not making the Will public immediately on the death of the testator. In this case, Mayakesavan died pending suit and he did not file any statement and according to the 2nd defendant DW1 after the death of Govindammal the four brothers divided the property among themselves under the registered partition deed dated 8.9.2000 and even earlier to that one of the legatees executed a release deed of his share in favour of the 2nd defendant and Karunyamoorthy and in that document also the Will was not mentioned. Similarly, in the other two documents Ex.A5 and the other settlement deed executed by Karunyamoorthy in favour of the 2nd defendant, the Will was also not explained. Further, DW3 the attesting witness purchased the property from the 2nd defendant and therefore he is an interested witness who is interested in safeguarding his right in the property and therefore his evidence cannot be accepted.
17. In the Judgement reported in AIR 1940 Madras, 315 (Sadachi Ammal Vs. Rajathi Ammal and others), it has been held that whenever a Will is prepared and executed under circumstances which raise the suspicion of the Court, the propounder is bound to prove the execution of the Will and also adduce evidence which removes any suspicion about the execution of the Will.
18. In the Judgement reported in 1977 (1) SCC, 369 (Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and others), it has been held as follows:
In cases where the execution of a Will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the Court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will.
There is a long line of decisions bearing on the nature and standard of evidence required to prove a Will. Those decisions have been reviewed in an elaborate Judgement of this Court in R. Venkatachala Iyengar v. B.N. Thimmajamma. The Court, speaking through Gajendragadkar, J., laid down in that case the following propositions:
(1) Stated generally, a Will has to be proved like any other document, the test to be applied being the usual test of the 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.
(2) Since Section 63 of the Succession Act requires a Will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, 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.
(3) Unlike other documents, the Will speaks from the death of the testator and therefore the maker of the Will is never available for deposing as to the circumstances in which the Will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will.
(4) Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will. That suspicion cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the Will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the Will excite the suspicion of the Court, the propounder must remove all legitimate suspicious before the document can be accepted as the last Will of the testator.
(5) It is in connection with Wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious circumstances the Court has to be satisfied fully that the Will has been validly executed by the testator.
(6) If a caveator alleges fraud, undue influence, coercion etc., in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may raise a doubt as to whether the testator was acting of his own free Will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
Circumstances are too numerous to mention which throw a cloud of suspicion on the making of the Will by Gobinder Singh. The Will is alleged to have been made on November 26, 1945 but it did not see the light of the day till August 20, 1957. Being an ambulatory document, it may be granted that there may be no occasion for anyone to know of its existence until the death of the testator on December 15, 1954. But it is ununderstandable that a document by which property worth lakhs of rupees was disposed of should have remained a closely guarded secret from the whole world of intimate friends and relatives, nay, from the sole legatee himself, for over 2 = years after the testator's death. The testator had left behind him a large property and along with it a large amount of litigation which makes it impossible to believe that upon his death in December 1954, no one bothered to go through his papers which would reflect the state and extent of his property. The explanation of the defendant that he hit upon the Will by chance while going through some papers of his grandfather is therefore patently lame and unacceptable.
19. In the Judgement reported in 2011 (5) CTC, 287 (N.Govindarajan Vs. N.Leelavathy and others), the Division Bench of this Hon'ble Court relied upon the Judgement of the Hon'ble Supreme Court held as follows:
Elaborating as to what are the suspicious circumstances, in Niranjan Umesh Chandra Joshi v. Mridula Jyothi Rao, 2007 (2) CTC 172 (SC): AIR 2007 SC 614 Supreme Court has held as under:
33. There are several circumstances which would have been held to be described by this Court as suspicious circumstances:
(i) When a doubt is created in regard to the condition of mind of the Testator despite his signature on the Will.
(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit.
{See also Management Committee, T.K.Ghosh's Academy v. T.C. Palit and others, AIR 1974 SC 1495; B. Venkatamuni v. C.J.Ayodhya Ram Singh and others, 2007 (2) LW 870: 2006 (11) Scale 148}.
20. The Hon'ble Division Bench of this Court relied upon the Judgement reported in 1977 (1) SCC, 369 (Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and others), held that when there was delay in probating the Will and no convincing reason was given for the delay, it can be taken as one of the suspicious circumstances to doubt the veracity of the Will.
21. The Judgements relied upon by the learned counsel for the respondents cannot be applied to the facts of this case, as in those Judgements it is held that a Will cannot be disbelieved on the ground that some of the heirs were excluded and Will can be believed when cogent and convincing evidence is let in about the due execution of the Will. In this case as stated supra, the Will was not brought to light in the past 16 years and the legatees were informed about the Will only after 15 years and even earlier to that they claimed to have partition that property and enjoying the property and some of them executed the release deeds and in those release deeds, the existence of the Will was not mentioned and no convincing evidence was given about the production of the Will by the deceased 1st defendant after 16 years and non-production of the partition deed dated 8.9.2000 would all cumulatively prove that there was suspicious circumstances relating to the execution of the Will and no attempt was made to dispel the suspicious circumstances and therefore the evidence of DW3 cannot be taken to hold that the Will was proved and therefore in my opinion, the lower appellate Court has erroneously held that the Will was proved by examining DW3 and the appellants were aware of the Will even in the year 2000 and the said finding is liable to be set aside. Therefore, the substantial question of law is also answered in favour of the appellants and I hold that Ex.B1 Will was not proved to have been executed by Govindammal and in the absence of Will the plaintiffs are entitled to their shares as prayed by them in the suit.
22. In the result, the Judgement and Decree of the lower appellate Court is set aside and the Judgement and Decree of the trial Court are confirmed and the Second Appeal is allowed. No costs. Consequently, the connected Miscellaneous Petition is closed.
kr.
To
1. The Subordinate Judge, Subordinate Court, Gudiyatham.
2. The District Munsif, District Munsif Court, Gudiyatham