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[Cites 7, Cited by 0]

Madras High Court

Mr.V.J.Ramachandran (Deceased) vs Janani Subramanyan on 21 August, 2012

Author: P.R.Shivakumar

Bench: P.R.Shivakumar

       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 21/08/2012

C O R A M

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR 

T.O.S.No.21 of 2008


1.Mr.V.J.Ramachandran (deceased)
2.Ramesh Lakshmi Ratan
							...		Plaintiffs

Vs.


1.Janani Subramanyan
2.Manoj Subramaniyan			...		Defendants

(2nd defendant impleaded as per order of Court dated 12.02.2010 in Application No.749 of 2010)

Testamentary Original Suit filed under Sections 232 and 276 of the Indian Succession Act and  under Order XXV Rule 5 of the High Court Original Side Rules, 1956 for the grant of Letters of Administration with Will annexed.  

		For Plaintiffs	:  Mr.P.B.Ramanujam

		For Denfendants	: Mrs.Chitra Sampath
					  Senior counsel
					 for Mr.T.S.Baskaran	

J U D G M E N T

The original petition filed by V.J.Ramachandran, the first plaintiff (deceased) for the grant of probate of the alleged last Will and testament of Swarnam Lakshmi Ratan has been converted into a suit and assigned T.O.S.No.21 of 2008 since the petition was opposed by Janani Subramanyan, the first defendant by filing a caveat.

2. The original petition for probate was filed showing 1) Ramesh Lakhmi Ratan (the second plaintiff), 2) Janani Subramanyan (the first defendant) and 3) Manoj Subramanyan (the second defendant) as Respondent Nos.1 to 3. Out of the three persons shown as Respondents in the Original Petition, Janani Subramanyan, the first defendant alone filed a caveat opposing the grant of probate. Hence, the Original Petition, was converted into a Testamentary Original Suit with T.O.S.No.21 of 2008 showing V.J.Ramachandran, the petitioner in the Original Petition, as the sole plaintiff and Janani Subramanyan as the sole defendant/caveator. Subsequently by virtue of an order dated 12.02.2010 made in Application No.749 of 2010, Manoj Subramanyan got impleaded as the second defendant. V.J.Ramachandran, who figured as the sole plaintiff subsequently died and Ramesh Lakshmi Ratan has been impleaded as the second plaintiff by an order dated 04.08.2012 made in Application No.3746 of 2010.

3. Actually Ramesh Lakshmi Ratan, who figured as the first respondent in the original petition, did not file any caveat and that was the reason why he had been omitted from the array of parties when the original petition was converted into a suit. As such, on the death of V.J.Ramachandran, the sole plaintiff, the proper course to have been adopted was to get him impleaded, as the second plaintiff, since he wanted to pursue the case filed by V.J.Ramachandran, the first plaintiff. By mistake an application was filed for transposition of Ramesh Lakshmi Ratan as second plaintiff instead of seeking his impleadment as second plaintiff and the Court has also passed such an order on 04.08.2010. The same is a mere irregularity which shall not affect the merits of the case. Hence the said order is taken as an order impleading Ramesh Lakshmi Ratan as the second plaintiff. Ramesh Lakshmi Ratan got impleaded as the second respondent, because he happened to be a legatee under the Will in respect of which probate had been sought for by the original plaintiff. On such impleadment, the prayer in the suit has also been altered from one for grant of probate to one for grant of Letters of Administration with Will annexed.

4. The case of the plaintiffs, in brief, can be stated as follows:

Swarnam Lakshmi Ratan (the testatrix) was ordinarily residing at Door No.9/5, Kasturi Ranga Road, Alwarpet, Chennai  600 018 and she died on 20.08.2001 leaving the suit Will dated 17.07.1998 as her last Will and testament bequeathing her property bearing Door no.5, Kasturi Ranga Road, Alwarpet, Chennai  18 to her son Ramesh Lakshmi Ratan (the second plaintiff). The Will was duly executed in the presence of two witnesses who have attested the same. The above said testator Swarnam Lakshmi Ratan has appointed V.J.Ramachandran, the deceased first plaintiff, as executor under the Will. After executing the suit Will dated 17.07.1998, the testator Swarnam Lakshmi Ratan died on 20.08.2001 without either cancelling the said Will or executing another Will and thereby leaving the said Will as her last Will and testament. She was survived by : 1) her son Ramesh Lakshmi Ratan (Second plaintiff), 2) her grand daughter Mrs.Janani Subramanyan (first defendant), 3) her grandson Manoj Subramanyan (second plaintiff) and 4) her husband V.R.Lakshmi Ratan. The defendants 1 and 2 are her grand daughter and grandson, born through her predeceased daughter Chitra. V.R.Lakshmi Ratan, the husband of the testatrix who survived the testatrix, died on 25.02.2005 leaving the remaining three persons, namely Ramesh Lakshmi Ratan, Janani Subramanyan and Manoj Subramanyan as his legal heirs. With the above said pleadings and with an undertaking that a full and true inventory of assets, credits and debts of the testator would be made and exhibited in the Court within six months from the date of grant of relief and to render true account of the properties and credits of the testatrix within one year from the date of obtaining order, the deceased first plaintiff had prayed for the grant of probate of the above said Will of the testatrix.

5. On the death of the first plaintiff (executor named in the Will), the second plaintiff got impleaded and altered the prayer for grant of Letters of Administration with Will annexed from one for the grant of probate.

6. The first defendant Janani Subramanyan filed a written statement and the same has been adopted by the second defendant Manoj Subramanyan. It contains, in brief, the following averments:

(i) The deceased Swarnam Lakshmi Ratan, the testatrix had got a son by name Ramesh Lakshmi Ratan (the second plaintiff) and one daughter by name Chitra. Defendants 1 and 2 respectively are the daughter and son of the above said Chitra. The testatrix was very fond of her grand children born through her daughter Chitra. In fact, they were the pet grand children of the testatrix and her husband and they used to pay visits to their maternal grandmother and stay with her during vacations. The Will dated 17.07.1998 propounded by the plaintiffs is false and the same is a concocted document. The due execution and attestation of the suit Will are denied by the defendants. V.R.Lakshmi Ratan, the husband of the testatrix, was employed in M/s.Philips India Limited and retired as a senior officer of the said company. He was well known for his association with Madras Cricket Club and other sports associations. Before the purchase of the property at No.5, Kasturi Ranga street, he was residing in the joint family house situated in Santhome High Road, sharing the same along with his brother. After a partition of the said joint family property, with the help of his share in the joint family assets and his earnings, V.R.Lakshmi Ratan built a house for his family consisting of himself, his wife Swarnam Lakshmi Ratan (testatrix), his son Ramesh Lakshmi Ratan (second plaintiff) and daughter Chitra in the land allotted to him in the lay out promoted by Mr.K.Srinivasan, the person incharge of the newspaper The Hindu. The said House is the one situated at No.5, Kasturi Ranga Road and the same is named Gayatri. The ground floor had always been let out to tenants and the rental income was utilized by the family. The testatrix Swarnam Lakshmi Ratan was only a house wife and she had no independent source of income either to buy the land or to put the construction. Her husband, popularly known as Nayana alone purchased the land and put up the construction. Under such circumstances, the testatrix Swarnam lakshmi Ratan predeceased her husband V.R.Lakshmi Ratan.
(ii) The very fact that V.R.Lakshmi Ratan, the husband of the testatrix, has not attested the suit Will propounded by the plaintiffs provides a strong suspicious circumstance surrounding the execution of the same. The suit Will is a rank forgery and the same will be revealed by the fact that no steps had been taken to get the Will probated during the life time of the husband of the testatrix. Mutation of the revenue records were made unauthorizedly in the name of Ramesh Lakshmi Ratan (second plaintiff) for which he shall be liable to be proceeded against for forgery. With the above said pleadings, the defendants have prayed for dismissal of the suit with costs.

7. Based on the above pleadings, the followings issues were framed:

a) Whether the Will dated 17.07.1998 is true and genuine?
b) Whether the Will was duly executed and validly attested while the testatrix was in sound disposing state of mind?
c) Whether the petitioner/plaintiff is entitled for a decree as prayed for in the plaint?
d)To what relief the plaintiff is entitled?

8. Two witnesses were examined as Pws 1 and 2 and 6 documents were marked as Exs.P1 to P6 to prove the plaintiffs' case. Manoj Subramanyan, the second defendant figured as the sole witness (DW1) and five documents were marked as Exs.D1 to D5 on the side of the defendants.

9. The arguments advanced by Mr.P.B.Ramanujam, learned counsel for the plaintiffs and by Mrs.Chitra Sampath, learned counsel for the defendants were heard and the pleading and the evidence were perused.

Issues 1 to 4:-

10. The second plaintiff Ramesh Lakshmi Ratan and the mother of the defendants 1 and 2, namely Chitra (deceased), are respectively the son and daughter of late V.R.Lakshmi Ratan and his wife late Swarnam Lakshmi Ratan. Contending that the said Swarnam Lakshmi Ratan executed the suit will dated 17.07.1998 and died on 20.08.2001 leaving the said will as her last will and testament and the first plaintiff V.J.Ramachandran (now dead) had been named as the executor in the said will, he had moved the original petition for probate. In the original petition, the second plaintiff Ramesh Lakshmi Ratan had been shown as the first respondent and the defendants 1 and 2 had been shown as respondents 2 and 3. The second plaintiff Ramesh Lakshmi Ratan being the major beneficiary of the will did not oppose the petition for the grant of probate. The first defendant Janani Subramanyan, who figured as the second respondent in the original petition alone opposed the petition for the grant of probate by filing a caveat. On the basis of her caveat and her affidavit containing the grounds, the original petition was converted into a testamentary original suit, in which, the deceased first plaintiff (V.J.Ramachandran) figured as the sole plaintiff and the first defendant (Janani Subramanyan) figured as the sole defendant. Subsequently, by virtue of an order dated 12.02.2010 passed in A.No.749 of 2010, Manoj Subramanyan was impleaded as the second defendant. After the death of the original plaintiff (V.J.Ramachandran) the second plaintiff (Ramesh Lakshmi Ratan) got impleaded and he is pursuing the suit after amending the relief from one for the grant of probate to one for the grant of Letters of Administration with will annexed.

11. Since the genuineness of the suit will and the claim of the plaintiffs that the suit will was executed by the testatrix while she was possessing sound disposing state of mind are not admitted and on the other hand are disputed by the defendants, the burden of proving the same lies on the plaintiffs. The suit will propounded by the plaintiffs has been produced and marked as Ex.P2. The said document being a will, which is required under law to be attested, the same cannot be received in evidence unless at least one of such attestors is called as a witness by the party who relies on the will, for proving execution and attestation of the will. Section 68 of the Indian Evidence Act, makes it mandatory that, if such a witness is alive, is amenable to the process of the court and is capable of giving evidence, the said condition should be fulfilled before receiving the said document in evidence. In this case N.Rangan and P.S.Narayanan are the attestors of Ex.P2-will. Out of the above said attestors, N.Rangan alone has been examined as a witness on the side of the plaintiffs and he figured as PW.2. The only other witness examined on the side of the plaintiffs is none other than the second plaintiff, who deposed as PW.1. Of course it is true that the second plaintiff has complied with the condition stipulated in section 68 of the Indian Evidence Act for the receipt of the will in evidence, by calling PW.2, one of the attestors and examining him as a witness on his side. But the compliance with the condition alone will not amount to proof of the genuineness and validity of the will. The same has to be decided based on an evaluation of evidence. Besides adducing evidence for the proof of execution of Ex.P2-will and regarding the sound disposing state of mind of the testatrix at the time of execution of the will, the propounder shall dispel the suspicious circumstances surrounding the execution of the alleged will.

12. The second plaintiff, while deposing as PW.1 has stated that he was present at the place of execution of Ex.P2-will when his mother (testatrix Swarnam Lakshmi Ratan) executed the same on 17.7.1998. It is also his testimony that his father V.R.Lakshmi Ratan was also present. The further evidence of PW.1 is to the effect that it was his father, who advised the testatrix to write the will. However, it is also an admitted fact that the father of PW.1 did not attest the will and PW.1 pleads absence of knowledge as to the reason for the same. PW.2 in his evidence in chief examination has deposed supporting the plaintiffs' case by stating that he and one of his colleagues attested the will in the presence of the testatrix, after the testatrix signed the will in their presence and that at that point of time, the testatrix did possess sound disposing state of mind.

13. The learned counsel for the defendants has advanced an argument that the suit will has not been proved by reliable evidence dispelling of the suspicious circumstances surrounding its alleged execution. The suspicious circumstances pointed out by the learned counsel for the defendants are:

1) The propounder took active part in bringing the suit will into existence;
2) Admittedly the testatrix died of cancer, but the records relating to her medical treatment, which will show either the presence or absence of the sound disposing state of mind, have not been produced and the same shall lead to the drawing of an adverse inference;
3) The attestors of the will were the close friends of the propounder, namely the second plaintiff;
4) PW.2 had been a close friend of the propounder (second plaintiff) from the year 1956 and he also happened to be the present auditor of the propounder;
5) The existence of the will was not disclosed till the death of the husband of the testatrix and till the defendants made a claim to the property by issuing notice;
6) Even the reply notice simply referred to auditors being the attestors of the will without naming them;
7) The propounder of the will viz., the second plaintiff, sent copies of two will of his father, which did not contain the signatures of the scribe, who prepared it and the typist who typed it;
8) The father V.R.Lakshmi Ratan, who is said to have executed two earlier wills dealing with the very same property, claiming it to be the one having purchased by him in the name of his wife for sentimental reasons, did not sign the suit will either as an attestor or in any other capacity, even though he is said to be instrumental for the execution of the suit will by the testatrix Swarnam Lakshmi Ratan;
9) The total exclusion of the grandchildren born through the daughter in respect of the immovable property except some investments, particulars of which are not known, that too subject to a life estate in favour of the husband of the testatrix, will make the disposition unnatural as no reason for the same has been assigned and
10) The executor appointed under the will, namely the deceased first plaintiff V.J.Ramachandran was also an auditor and partner of the auditing firm in which PW.2 and the other attestor were also members.

It is the contention of the learned counsel for the defendants that the above said suspicious circumstances surrounding the suit Will, have not been dispelled by adducing reliable evidence and that hence the suit should be dismissed holding that the suit Will has not been proved to be genuine and executed by Swarnam Lakshmi Ratan while possessing sound disposing state of mind.

14. Per contra, learned counsel for the plaintiffs would contend that a lease deed came to be executed by the tesatrix as late as in 2001, in which the second defendant (DW.1) figured as an attestor and such an attestation of the said document by DW.1 shall amount to an admission that the testatrix was possessing sound disposing state of mind capable of making a will as late as in the year 2001; that DW.1 has also admitted in his evidence that till two or three months prior to her death in 2001, the testatrix used to do the cooking for herself and her husband; that though the defendants had taken a plea of forgery and undue influence, they had completely given up such plea; that though PW.2 happened to be a schoolmate of PW.1, his evidence being natural and spontaneous without admitting any room for suspicion, the same should be relied on; that the husband of the testatrix did not want the Will to be probated during his life time was the reason for not applying for probate during the life time of V.R.Lakshmi Ratan; that the presence of beneficiary at the time of making of the suit Will per se will not give rise to any suspicion and that even persuasion by the persons close to the testatrix will not amount to undue influence. The learned counsel for the plaintiffs would contend further that the evidence adduced on the side of the plaintiffs are reliable, sufficient and hence based on the said evidence, the court should hold that the Will has been proved to be genuine and that the same was executed by the testatrix while possessing sound disposing state of mind.

15. Let us now consider the sustainability of the contentions raised on either side. For that purpose, whether the suspicious circumstances relied on by the defendants are in fact suspicious circumstances and whether such suspicion have been dispelled by the second plaintiff by reliable evidence, should be considered.

16. The Original Petition, which was later on converted into a Testamentary Original Suit, was initially filed by one V.J.Ramachandran, the alleged executor appointed by the testatrix Swarnam Lakshmi Ratan in her last Will and Testament dated 17.07.1998. Since he died subsequently, Ramesh Lakshmi Ratan got impleaded as second plaintiff. Though Ramesh Lakshmi Ratan, Janani Subramanian and Manoj Subramanian had been arrayed as Respondents 1 to 3 in the original petition, quite naturally Ramesh Lakshmi Ratan did not file any caveat opposing the grant of probate sought for by V.J.Ramachandran, because Ramesh Lakshmi Ratan was the major beneficiary of the suit Will and it was he who propounded the Will. The only respondent who filed a caveat opposing the grant of probate was Janani Subramanian. That is the reason why, V.J.Ramachandran had been shown to be the sole plaintiff and Janani Subramanian had been shown to be the sole defendant on conversion of the Original Petition into a Testamentary Original Suit. Subsequently, by an order dated 12.02.2012 made in Application No.749 of 2010, Manoj Subramanian was impleaded as second defendant. On the death of the sole plaintiff V.J.Ramachandran, Ramesh Lakshmi Ratan came forward with an application in Application No.3746 of 2010 to come on record as second plaintiff to continue the suit with an amended prayer for grant of Letters of Administration in stead of probate. While doing so, Ramesh Lakshmi Ratan wrongly prayed for an order transposing him as a plaintiff on the erroneous assumption that the cause title of the Original Petition would have to be retained without any change on the conversion of the Original Petition into a suit. As pointed out supra, though the same is an irregularity, we need not dwell on technicalities and suffice to state that the order directing transposition of Ramesh Lakshmi Ratan as second plaintiff will serve as an order for his impleadment as second plaintiff after the death of V.J.Ramachandran (the original plaintiff).

17. In the averments made in the original petition by the first plaintiff, which was adopted by the second plaintiff after its conversion into a plaint, a simple averment has been made for seeking the grant of probate/Letters of Administration with Will annexed in the following terms:

"5.The writing hereunto annexed, now shown to the petitioner and marked with letter "A", is the last Will and Testament of the said deceased Swarnam Lakshmi Ratan, and was duly executed by her on 17.07.1998 in the presence of two witnesses, who are well known to the deceased, whose names appear at the foot thereof. The delay in filing this petition is due to non-cooperation between respondents.
6.The petitioner also submits that the petitioner has been appointed as the Executor under the said Will dated 17.07.1998 executed by Late Swarnam Lakshmi Ratan.
7. The petitioner further states that the deceased Swarnam Lakshmi Ratan died on 20.08.2011 leaving behind the following persons as her only legal heirs:
SI.NO Name Age Relationship with Testator 1 Mr.Ramesh Lakshmi Ratan 59 Son 2 Mrs.Janani Subramanian 40 Grand daughter 3 Mr.Manoj Subramanian 38 Grand Son Daughter of the deceased, namely Chitra pre-deceased the testatrix leaving behind her children, respondents 2 and 3 as her legal heirs. The husband of the testatrix Sri.V.R.Lakshmi Ratan died on 25.02.2005 leaving behind Respondents 1 to 3 as his only legal heirs."

18. Nothing has been mentioned in the pleadings of the plaintiff as to the circumstances under which the suit Will came to be executed by Swarnam Lakshmi Ratan. There is also omission to state the names and addresses of the attestors of the Will. In such circumstances, the first defendant Janani Subramanian filed a written statement stating that V.R.Lakshmi Ratan, the husband of the alleged testatrix put up the building bearing the name "Gayatri" at No.5, Kasthuri Ranga Road, Alwarpet, Chennai  600 018 over the plot measuring about 900 sq.ft allotted to him by one K.Srinivasan, who was in charge of the Newspaper "The Hindu" because of the close association of V.R.Lakshmi Ratan with Madras Cricket Club and the media persons, using the family assets he got from the joint family consisting of himself and his brother in a partition. It was also contended therein that the testatrix Swarnam Lakshmi Ratan was only a housewife having no sources of income or resources to buy the property or to construct the building; that on the other hand V.R.Lakshmi Ratan, who was popularly known as Nayana, with his own efforts and the family resources he got from the joint family property in Santhome High Road, got the land and put up the construction, which is named "Gayatri" and that the alleged Willl dated 17.07.1998 was absolutely a false one and a concocted document. The defendants have also denied due execution and valid attestation of the alleged Will dated 17.07.1998. It has also been stated in the written statement that the very fact that the plaintiffs did not reveal the existence of the suit Will till the death of V.R.Lakshmi Ratan on 28.02.2005, though the testatrix died long back on 20.08.2001, will create a strong suspicious circumstance surrounding the execution of the alleged Will propounded by the plaintiffs.

19. A consideration of the pleading contained in the written statement of the first defendant Janani Subramanian, which was adopted by the second defendant Manoj Subramanian, will show that besides a stout denial of due execution and attestation of the suit Will propounded by the plaintiffs, they have also contended that the alleged execution of the Will was surrounded by suspicious circumstances. When such is the case, it is the duty of the propounder of the Will to prove due execution and attestation of the Will. Section 68 of the Evidence Act provides that a document, which is required by law to be attested, 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. The proviso provides an exception to the main Section 68 as it states 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, unless its execution by the person by whom it purports to have been executed is specifically denied. Similarly, there is no legal requirement to have a Will registered to make it a valid document. There is no impediment for getting a document registered even though registration of such document is not compulsory. The proviso applies to a document which has been registered in accordance with the provisions of the Indian Registration Act, 1908 and its execution by the persons who purported to have executed it is not specifically denied. The necessary corollary shall be that even if a document has been registered in accordance with the provisions of the Indian Registration Act, if such document is required by law to be attested and its execution by the person by whom it purports to have have been executed is specifically denied, then the application of the proviso stands excluded even in respect of registered documents, in case of specific denial of execution, the requirement of calling one attesting witness at least for the purpose of proving its execution in respect of documents required by law to be attested shall be mandatory.

20. In this case, the suit Will produced as Ex.P2 is not a registered document. Therefore, even if it is assumed that the proviso will get attracted, the mandatory requirement of calling one attesting witness at least for the purpose of proving its execution does not get dispensed with since its execution has been denied by the defendants in their written statement. The vital aspect is that the proviso is made inapplicable to a Will. It applies to any document not being a Will. Therefore, even if a Will is registered, the exemption provided in the proviso to Section 68 shall not apply and the propounder of the Will has to call one attesting witness at least, if there be an attesting witness alive and subject to the process of Court and capable of giving evidence.

21. Of course, it is true that in compliance with the requirement under Section 68 of the Evidence Act, the surviving plaintiff, namely PW1 has called one of the attestors of the Will and examined him as PW2, besides examining himself as PW1. The mere compliance with the requirement of Section 68 regarding examination of one attesting witness at least shall not be taken as conclusive proof of execution of the document. The Court has to evaluate evidence and make a decision as to whether the execution of the document has been proved. While considering the execution and attestation of the document, if it is a Will, the Court should also consider whether there are suspicious circumstances surrounding the alleged execution of the Will and whether the propounder of the Will is able to disspell such suspicion by reliable evidence.

22. In this case, as pointed out supra, the plaint does not contain any averment regarding the circumstances under which the suit Will propounded by the plaintiffs came to be executed by Swarnam Lakshmi Ratan, the testatrix. According to the plaintiffs' case, the suit Will produced as Ex.P2 was duly executed by Swarnam Lakshmi Ratan on 17.07.1998 and the same was attested by N.Rangan and P.S.Narasimhan. The surviving plaintiff, namely the second plaintiff Ramesh Lakshmi Ratan, while deposing as PW1, has stated in his evidence that the said Will was executed by his mother Swarnam Lakshmi Ratan in the presence of his father V.R.Lakshmi Ratan, the attestors Rangan (PW2) and P.S.Narasimhan and the executor appointed under the Will, namely V.J.Ramachandran. The attestor, namely Mr.N.Rangan, who deposed as PW2, seems to have corroborated the testimoney of PW1 regarding the date and place at which the suit Will Ex.P2 was executed and who were all present at the time of its execution. But, a closer scrutiny of the evidence of PWs 1 and 2 will show that there are suspicious circumstances surrounding the alleged execution of the Will as contended by the defendants.

23. First of all, the pleadings in the plaint do not refer to the circumstances under which the suit Will came to be executed. It also does not contain any averment as to who actually bought the property as a vacant site and with whose funds the building was put up. In this regard, the defendants have come forward with a clear plea that the alleged testatrix Swarnam Lakshmi Ratan was a house wife without any independent source of income for the purchase of the land and for the construction of the building dealt with in the suit Will marked as Ex.P2 and that on the other hand, it was her husband V.R.Lakshmi Ratan, who got the plot allotted by the promotor of the layout and put up the construction with the funds he got from his joint family property when a division of the family assets was effected. The above said averment made in the written statement is not disputed by the surviving plaintiff , namely Ramesh Lakshmi Ratan. Ramesh Lakshmi Ratan rather admits the case of the defendant as to who got the land and with what fund the building was constructed. In the proof affidavit, which has been accepted as his evidence in chief examination, he has admitted the stand taken by the defendants in their written statement regarding the purchase of the property as vacant site to V.R.Lakshmi Ratan and construction of the building by V.R.Lakshmi Ratan. The relevant portion from his proof affidavit is extracted hereunder:

"no doubt the property was purchased by my father in the name of my mother"

However, PW1 has gone further and contended that though the property was purchased by the father of PW1 in the name of the testatrix, the purchase was made for her benefit and the father of the plaintiff, namely V.R.Lakshmi Ratan, at no point of time staked any claim in the said property claiming it to be his own property. He has also contended that the building was constructed by his mother, namely the testatrix Swarnam Lakshmi Ratan after availing loan in her name from Egmore Benefit Society. However, PW1 would state that the loan amount was repaid by his father, but for the benefit of his mother.

24. His evidence in cross examination goes quite contrary to the stand that V.R.Lakshmi Ratan, the father of PW1 at no point of time staked claim to the property as if it were his own. In his evidence in cross-examination, PW1 has stated that his father V.R.Lakshmi Ratan had written three or four Wills during his life time. However, copies of two such Wills alone were annexed to the letter written by PW1 to the defendants on 20.10.2005 after the death of V.R.Lakshmi Ratan. The said letter along with the annexures have been marked as Ex.D5. The first annexure is a copy of the Will dated 04.07.1984 alleged to have been executed by Vaidyanatha Ramaswami Lakshmi Ratan (V.R.Lakshmi Ratan) alias Nayana. In the copy of the first Will annexed to the letter marked as Ex.D5, recitals have been made to the effect that V.R.Lakshmi Ratan asserted his title to the property, which was sought to be bequeathed under the said Will, namely No.5, Kasturi Ranga Iyerger Road, Madras  18 and that for sentimental reasons it stood in the name of his wife although he was the sole and exclusive owner thereof having bought the site and constructed the building thereon out of his earnings. In the copy of the Will dated 04.07.1984 (Annexure No.1 of the letter), the signature of Mrs.Swarnam Lakshmi Ratan is also found. But, curiously the Will has not been couched in such terms as a joint Will executed by V.R.Lakshmi Ratan and his wife Swarnam Lakshmi Ratan. No explanation has been offered as to why the signatures of both V.R.Lakshmi Ratan and Swarnam Lakshmi Ratan are found in the said Will, which is said to have been written by V.R.Lakshmi Ratan alone, whereas the second Will dated 04.07.1994 contains the signature of V.R.Lakshmi Ratan alone. It should also be noted that in the first Will, below the signature of V.R.Lakshmi Ratan, date has been written whereas no such date is found with the signature of V.R.Lakshmi Ratan in the second annexure, namely copy of the Will dated 04.07.1994. The bequest proposed to be made in the said Wills was to the effect that the above said property was bequeathed to the second plaintiff Ramesh Lakshmi Ratan absolutely with a life interest to Swarnam Lakshmi Ratan to use, occupy and enjoy without any right of alienation. The copy of the second Will annexed to the said letter contains an additional paragraph which reads as follows:

"I am also the President and Proprietor of Minerva Cricket Club, which was founded by me in the year 1930. The club's ownership has been challenged by a person to whom I entrusted it for running as Secretary. This matter is now resting at the Madras High Court and may take some time to get resolved. However, it is my desire that this club if and when retrieved should go absolutely to N.S.Vivek, No.27, Papanasam Sivam Salai, Madras  600 004 who has agreed to run it with my son Ramesh Lakshmi Ratan's support and help".

In all other respects, it is verbatim the reproduction of the earlier Will. It is also pertinent to note that in both the Wills, N.C.Sarabeswaran was named as the executor appointed by the testator and the attestors of both the Wills are one and the same. PW2- Rangan, figured as the first witness and P.S.Narasimhan figured as the second witness. Though the addresses of the witnesses are found written by the respective attestors in the copy of the Will dated 04.07.1984, the same is absent in the copy of the second Will annexed to the letter, namely Will dated 04.07.1994. The contents of those Wills copies whereof were sent by PW1 to the defendants annexed to the said letter, is in contradiction with his plea in the cross-examination that V.R.Lakshmi Ratan did not stake claim to the property dealt with by the testatrix in her Will marked as Ex.P2; Here arises the first suspicion.

25. A comparison of the suit Will marked as Ex.P2 allegedly executed by the testatrix Swarnam Lakshmi Ratan with the first Will annexed to the letter marked as Ex.D5 will show that Ex.P2 is nothing but a reproduction of the Will dated 04.07.1984 with a change of the name of the testator from V.R.Lakshmi Rantan to Swarnam Lakshmi Ratan and substitution of the deceased first plaintiff V.J.Ramachandran as executor in the place of Sarabeswaran. PW1 has also admitted that contents of the second document annexed with Ex.D5 are mostly a reproduction of the first document, excepting small changes here and there. It is also pertinent to note that the very same attestors are the attestors of Ex.P2 also. The attestors are admittedly qualified auditors, who were the partners of the auditing firm, which was dealing with the Income Tax accounts of Ramesh Lakshmi Ratan, the second plaintiff (PW1). Ex.D5 is the letter written in reply to a letter dated 21.08.2005 jointly sent by the defendants. Copy of the said letter of the defendants dated 21.08.2005 has been marked as Ex.D1. The same was written after the death of V.R.Lakshmi Ratan. In Ex.D1, the defendants had stated that the second plaintiff Ramesh Lakshmi Ratan, even during the life of his parents, suggested a plan for developing the house property "Gayatri" into a multi-storied building for which V.R.Lakshmi Ratan and his wife raised objection stating that during their life time, they did not want to have any disturbance; that even V.R.Lakshmi Ratan had informed one Ramasubramanyan, father-in-law of the first defendant, of his view that at an appropriate time after his life time, the property could be developed for the benefit of both the branches of the family of V.R.Lakshmi Ratan (the branch of plaintiff's family and the branch of his sister Chitra) and that since a period of six months had elapsed from the date of death of V.R.Lakshmi Ratan, mutations were to be made in the joint names of the second plaintiff and the defendants. In the said letter, they had requested the second plaintiff to initiate steps to carry out mutation in the property records and had requested him for sending them necessary forms for complying with the requirements of the corporation and other bodies like Electricity Board and Water Supply Department. Only as a reply to the said letter, the second plaintiff sent Ex.D2 letter dated 05.09.2005 informing the defendants that there was a Will left by his mother and he was made to understand by his father and mother that the existence of the Will had been brought to the notice of the defendants during their life time itself; that under the Will the second plaintiff was the sole beneficiary of the property, namely "Gayatri" subject to a life interest in favour of V.R.Lakshmi Ratan; that the auditor of the V.R.Lakshmi Ratan had been appointed as the executor of the Will; that two respectable people had attested the Will; that subsequent to the death of Swarnam Lakshmi Ratan, her husband V.R.Lakshmi Ratan (Nayana) had also settled his rights in favour of the second plaintiff. Again a letter dated 06.10.2005 was sent by the first defendant, a copy of which has been marked as Ex.D3, stating that the recital in Ex.D2 to the effect that the documents written by V.R.Lakshmi Ratan and Swarnam Lakshmi Ratan had been seen by the defendants was not true and asking the second plaintiff to send copies of those papers authored by V.R.Lakshmi Ratan and Swarnam Lakshmi Ratan, based on which the second plaintiff had made the claim.

26. A similar letter was sent by the second defendant on 12.10.2005, a copy of which has been marked as Ex.D4. Only as a reply to the letters dated 06.10.2005 and 12.10.2005, copies of which have been marked as Exs.D3 and D4, Ex.D5 letter dated 20.10.2005 came to be issued with the annexures, namely 1) copy of the Will of V.R.Lakshmi Ratan @ Nayana dated 04.07.1984, but signed by both V.R.Lakshmi Ratan and his wife Swarnam Lakshmi Ratan, 2) copy of the Will of V.R.Lakshmi Ratan dated 04.07.1994 containing his signature alone and 3) copy of a consent affidavit sent by the second plaintiff to the second defendant for getting his signature. It is pertinent to note that though the second plaintiff claims a right under the Will of the testatrix claiming to be the sole legatee under the Will of the testatrix Swarnam Lakshmi Ratan, when he was asked to send copies of the documents based on which he was making such claim, he had chosen to send only copies of the Wills dated 04.07.1984 and 04.07.1994, both said to have been executed by his father V.R.Lakshmi Ratan. Copy of the crucial Will, namely Ex.P2 was not enclosed. The very fact that in all the three Wills, the very same persons, who are the partners of the auditing firm dealing with the Income Tax accounts of the plaintiff, happened to be the attestors gives raise to a strong suspicion as to the genuineness and due execution of Ex.P2 Will. In all the three Wills, no reason has been assigned for the disinheritance of the defendants, who were the children of pre-deceased daughter of the respective testators and for the preference of the son alone as the legatee in respect of the named property.

27. In all the three Wills, a bare reference has been made to the movables such as deposits, bank balances, units, National Savings Certificates etc., with a direction that the other spouse of the testator will have a life interest in respect of the income thereof and that ultimately the investment shall devolve on the second defendant Manoj Subramanian. But no movables like deposits, bank balances, units, National Savings Certificates etc., are said to be left either by V.R.Lakshmi Ratan or by Swarnam Lakshmi Ratan. On the other hand, PW1 in his evidence would admit that he has got no details of the movables mentioned in Ex.P2 Will. Pw1 would admit that even during V.R.Lakshmi Ratan's life time he had handed over all the movable properties to the second defendant. It is quite contrary to the recitals found in Ex.P2. Under Ex.P2 all the movables like deposits would be subject to a life interest of V.R.Lakshmi Ratan and only after his life time, the deposits would go to the second defendant. The second plaintiff, as PW1, have ventured to state that even during the left time of V.R.Lakshmi Ratan, he gave the movable properties mentioned in Ex.P2-Will to the second defendant, meaning that V.R.Lakshmi Ratan had forgone his life interest. However, during cross-examination, PW1 has admitted that he did not have the details regarding the movables mentioned in Ex.P2 Will. It should also be noticed that similar recitals are found in the copies of the Wills dated 04.07.1984 and 04.07.1994 annexed as Enclosure 1 and 2 to Ex.D5 letter. A close consideration of the above said aspects will provide yet another suspicious circumstance regarding the genuineness and due execution of Ex.P2 Will.

28. Though the second plaintiff in Ex.D2 letter would have stated that his mother as well as his father informed him that his mother's Will was brought to the notice of the defendants during their life time, during trial, there is no clear cut assertion from the second plaintiff that the existence of the Will had been brought to the notice of the defendants prior to the above said letter. On the other hand, PW1 himself, during cross-examination, has admitted that he had not informed the first defendant or second defendant Manoj Subramanian about the existence of the Wills, copies of which were annexed as enclosures 1 and 2 in Ex.D5 prior to 20.10.2005. The suit Will is said to have been executed on 17.07.1998. The alleged testatrix Swarnam Lakshmi Ratan died on 20.08.2001, as seen from Ex.P1 Death Certificate. No steps were taken for getting the Will probated till the death of V.R.Lakshmi Ratan, the husband of Swarnam Lakshmi Ratan. V.R.Lakshmi Ratan admittedly died on 25.02.2005. Even after the death of V.R.Lakshmi Ratan, till the defendants requested the second plaintiff to extend cooperation for effecting mutation in the property records, neither the second plaintiff nor the named executor, namely the deceased first plaintiff, did open their mouth regarding the existence of Ex.P2 Will. Even V.R.Lakshmi Ratan, the husband of Swarnam Lakshmi Ratan, during his life time did not take steps to get the Will probated. The explanation offered by the second plaintiff for not taking steps to get the Will probated till the death of his father V.R.Lakshmi Ratan seems to be a result of an after thought. The second plaintiff himself has stated that it was his father V.R.Lakshmi Ratan who arranged for the execution of the Will by Swarnam Lakshmi Ratan. Having chosen to do so, he would not have hesitated or provided hurdle for getting the Will probated after the death of Swarnam Lakshmi Ratan. Therefore, the contention of the second plaintiff that his father did not want the Will of his wife to be probated during his life, as the reason for his failure to take steps during the life time of V.R.Lakshmi Ratan, does not inspire the confidence of the Court. That apart, the silence on the part of the second plaintiff till a demand was made by the defendants for co-operation for effecting mutation, will also provide a strong suspicious circumstance regarding genuineness and due execution of Ex.P2 Will.

29. The second plaintiff has also taken inconsistent and oscillating stand that propounding two wills allegedly written by his father on 04.07.1984 and 04.07.1994 respectively, purporting to bequeath the very same property dealt with in Ex.P2 Will. He has not taken a firm stand as to under which Will he is entitled to get the property as legatee. V.R.Lakshmi Ratan died on 25.02.2005. Till this day, the second plaintiff has not taken any steps to seek probate of any one of the Wills of the V.R.Lakshmi Ratan or Letters of Administration based on such Will. A comparative study of all the three Wills, as rightly contended on behalf of the defendants, will give raise to a serious suspicion that Ex.P2 could have been created with the help of the signature of the testatrix obtained in blank papers. The suspicion becomes even stronger in the light of the fact that the signature of Swarnam Lakshmi Ratan is found in Annexure No.1 to Ex.D5 letter, which was prepared as a Will executed by V.R.Lakshmi Ratan alone.

30. Above all, when the deceased Swarnam Lakshmi Ratan did have V.R.Lakshmi Ratan as her husband, Ramesh Lakshmi Ratan as her son and the defendants as her grandchildren through her predeceased daughter, the absence of any reason for the exclusion of the said grandchildren and preferring the son alone to be the sole beneficiary in respect of the only tangible property, namely the house property bearing Door no.5, Kasturi Ranga Road, Alwarpet, Chennai  18 with the name Gayatri, constitute a suspicious circumstance. As pointed out supra, even though a reference has been made to movables like deposits, bank balances, units, National Savings Certificates etc., and it has been stated that , the same shall go to the second defendant subject to a life interest of V.R.Lakshmi Ratan, the details of such movables are not found noted in the schedule. As rightly pointed out by the learned counsel for the defendants, the same seems to have been incorporated to make it appear that the second plaintiff was not the sole legatee under the Will and some substantive benefits have also been conferred on the second defendant Manoj Subramanian. It shall be pertinent to note that the second plaintiff, as PW1, has pleaded ignorance about the movables, namely deposits, bank balances, units, National Savings Certificates etc., referred to in Ex.P2-Will. Even PW2, the attestor of the Will has not spoken about the same. As rightly contended by the learned counsel for the defendants, the same provides a valid suspicious circumstance which ought to have been cleared by the plaintiffs by adducing evidence, which shall be capable of disspelling the said suspicious circumstance. But, a consideration of the evidence adduced on the side of the plaintiffs will show that the evidence is not enough to dis-spell the said suspicious circumstance.

31. The major beneficiary of the Will taking active part in bringing the Will into existence is also projected as yet another suspicious circumstance. As pointed out supra, the second plaintiff Ramesh Lakshmi Ratan happened to be the major beneficiary of the suit Will and he can even said to be the sole beneficiary under the Will subject to the life interest of V.R.Lakshmi Ratan. The second plaintiff Ramesh Lakshmi Ratan admits that he was present at the time of execution of one of the alleged Wills executed by his father, namely the Will dated 04.07.1994 a copy of which was sent as Annexure 1 to Ex.D5 letter. It is also his admission that he was very much present at the time when his mother Swarnam Lakshmi Ratan executed the suit Will Ex.P2. Though the mere presence of the beneficiary under the Will, at the time of execution of the Will at the place of execution, may not amount to playing an active part in bringing the Will into existence, the sequence of events as deduced from the evidence of PW1, will give a strong suspicion that he had played an active part in bringing the suit Will Ex.P2 into existence. It is the evidence of PW1 that his mother Swarnam Lakshmi Ratan wanted to sign the documents three days prior to the date on which it was signed, but since the said day happened to be the birthday of her husband, namely V.R.Lakshmi Ratan and that since the second plaintiff (PW1) was also not in town, she waited for his arrival and then signed the Will after his arrival. For executing a Will, the presence of the legatee / beneficiary in the place of execution at the time of execution is not necessary. The evidence of the second plaintiff as PW1 that though the testatrix wanted to sign the Will three days earlier, she waited for his arrival since he was not in town and executed the Will only after his arrival will also go to show that the second plaintiff played an active part in bringing about the Will Ex.P2 into existence.

32. It is the further evidence of PW1 that his parents, namely testatrix Mrs.Swarnam Lakshmi Ratan and her husband V.R.Lakshmi Ratan informed him on 10th or 11th July 1998 that the testatrix was going to execute a Will and that he returned to Chennai on 17.07.1998 or a day earlier, namely on 16.07.1998. The same seems to be quite contrary to the evidence of the attestor, namely PW2. PW2 is admittedly an auditor attached to a firm of auditors which was handling the Income Tax accounts of V.R.Lakshmi Ratan and also the second plaintiff Ramesh Lakshmi Ratan. Admittedly, Swarnam Lakshmi Ratan was not an Income Tax assessee and PW2 has admitted the said fact by stating that she was not an Income Tax assessee. He had no official acquaintance with her and had only social acquaintance with her. It is his further evidence that Ex.P2-Will was typed in their office one day or two days prior to the date of Ex.P2. It shall be very much obvious from the evidence of PW2 that the testatrix Swarnam Lakshmi Ratan had not instructed either PW2 or any other person in his office to prepare a Will to be executed by her. According to his evidence, it was V.R.Lakshmi Ratan, who brought a written draft and wanted PW2 and other attestor to be the witnesses attesting the suit Will Ex.P2. The said evidence will go to show the absence of any request by the testatrix to the attestors to be the attestors of her Will. In the entire evidence, there is no clear assertion by PW2 that when they went to the place of execution of Ex.P2, the testatrix Swarnam Lakshmi Ratan requested them to be the witnesses for the execution and attest the Will. It is also curious to note that the Annexure No.1, namely copy of the Will of V.R.Lakshmi Ratan dated 04.07.1984 and Annexure No.2, namely copy of the Will of V.R.Lakshmi Ratan dated 04.07.1994 enclosed with Ex.D5 letter were also admittedly typed in the office of the auditor, namely PW2. PW2 in his evidence has admitted that all the three Wills were typed in their office and he witnessed all the three Wills on the dates mentioned therein as V.R.Lakhsmi Ratan wanted him and the other witness to be the attestors.

33. There is a vital contradiction between the particulars found in Ex.P2 and the evidence of PW2. According to his testimony, Ex.P2 Will was typed in their office one day or two days prior to the date of execution of Ex.P2. He has also pleaded absence of knowledge as to whether any date was fixed for the execution of the Will and it was subsequently postponed. He would also plead loss of memory as to whether V.R.Lakshmi Ratan had mentioned any specific date on which the attestors were to come and attest the Will. If it is so, the date of execution of the Will could not have been typed; the date would have been left blank and the same could have been filled up later. That is not the case here. In Ex.P2, the preamble itself contains the date as 17.07.1998 and the concluding portion reciting the execution also contains the date as 17.07.1998. They have been typed. None of the signatures, namely signature of the testatrix Swarnam Lakshmi Ratan, signatures of Rangan and Narasimhan is accompanied by any date to show the date on which the said signatures were made. The very fact that PW2 has stated that the Will was typed in his office a day or two prior to the date of execution, whereas the date has also been typed, it would show that it could not have been executed on 17.07.1998 and it should have been executed on 18.07.1998 or subsequently. The above said lacuna and contradiction also provide a very strong suspicious circumstance against the genuineness of the Will. The said suspicion gets strengthened by the fact that the other attestor is also an auditor attached to the very same firm of auditors and the executor named in the Will, namely Ramachandran was also an auditor and a partner of the said firm of auditors which was dealing with the Income Tax accounts of the second plaintiff Ramesh Lakshmi Ratan. In Annexure No.1 to Ex.D5, namely copy of the Will of V.R.Lakshmi Ratan dated 04.07.1984, yet another auditor belonging to the very same firm of auditors by name N.C.Sarabeswaran was named as the executor of the said Will. All the above said facts will show the existence of a very strong suspicious circumstance that above said documents were prepared at the instance of the second plaintiff with the help of the auditors of the firm of auditors which was dealing with the Income Tax accounts of the second plaintiff making the partners of the firm of auditors as attestors and also the executors appointed under the Wills. The same also provides, as rightly pointed out on behalf of the defendants, a very strong suspicious circumstance regarding the genuineness of the Will.

34. It is also pertinent to note that PW2 had a long acquaintance with the second plaintiff, which was not at all revealed by the second plaintiff (PW1). PW2 during cross-examination has admitted that he knew the second plaintiff Ramesh Lakshmi Ratan from 1950 as he was a junior to him in his school. Though he would have made an attempt to state that after he left the school he had no contact with him, such an attempt turned out to be a failure by his further admission that whenever the second plaintiff Ramesh Lakshmi Ratan visited Madras to see his parents, he used to call on PW2 and thus, they met on those occasions. It is also an admission made by PW2 that the second plaintiff Ramesh Lakshmi Ratan is an Income Tax assessee and their office, namely office of the PW2 takes care of the Income Tax matters of the second plaintiff Ramesh Lakshmi Ratan. It is also his further admission that the other attestor P.S.Narasimhan is the person who is personally handling the Income Tax matters of the second plaintiff Ramesh Lakshmi Ratan. In addition, a consideration of the entire evidence of PW2 will show that all along they had contacts with each other. The said professional relationship and also the acquaintance as a school met which continued even after they left the school, with the further fact that only those persons who were associated with the auditing firm which was dealing with the Income Tax matters of the second plaintiff took active part in the execution of the suit Will either as attestors or as executors named in the Will, will provide a strong suspicious circumstance regarding the genuineness of the Will.

35. The case of the plaintiff is that the property was purchased as a vacant site by V.R.Lakshmi Ratan and the superstructure was put up by him with his own funds which he got as a share from his ancestral property in partition. Though the property had been purchased in the name of Swarnam Lakshmi Ratan, it was V.R.Lakshmi Ratan, the husband of the testatrix, who actually purchased the site and put up the construction with his own funds. The plaintiff has come out with a novel explanation that V.R.Lakshmi Ratan after executing those two Wills, copies of which were sent as Annexures 1 and 2 in Ex.D5, on a legal advice from one of his lawyer friends, chose to get a Will executed by his wife Swarnam Lakshmi Ratan and such Will is Ex.P2. If at all the same was the wish of V.R.Lakshmi Ratan and he only wanted to have a Will excuted by his wife Swarnam Lakshmi Ratan and he himself prepared the Will and got it typed in the office of his auditors and invited his own auditors to be the attestors, the same will also give raise to a suspicion that the signature could have been obtained in the Will without making the contents of the Will known to the testatrix. Again, if at all it was V.R.Lakshmi Ratan who was instrumental for the execution of the Will by his wife Swarnam Lakshmi Ratan on the premise that it was he who purchased the land and put up the construction, it would be quite natural for him to have attested it. The fact that V.R.Lakshmi Ratan has not signed Ex.P2-Will in any capacity, will also show that the second plaintiff prepared at least three Wills, two in the name of V.R.Lakshmi Ratan and one in the name of Swarnam Lakshmi Ratan in order to grab the entire property to the exclusion of the other legal heirs of Swarnam Lakshmi Ratan or V.R.Lakshmi Ratan as the case may be and that is the reason why all the Wills came to be prepared in the one and the same office of auditors and very same the persons participated in such execution of all those documents either as attestors or as the executor appointed under the Will.

36. All the above suspicious circumstances will go to show that the suit Will propounded by the plaintiffs is not genuine and the plaintiffs have failed to prove that the said Will was executed by Swarnam Lakshmi Ratan knowing fully well what she was doing and signed the Will after knowing the contents of the Will. Despite the presence of more number of suspicious circumstances which are indicated above and the further fact that the second plaintiff has not adduced evidence sufficient to disspell the suspicion, learned counsel for the plaintiff made an attempt to contend that the defendants having taken a plea of undue influence should be presumed to have admitted the execution of the Will and that since they have failed to prove undue influence or absence of sound disposing state of mind of the testatrix at the time of execution of Will, it must be held that the Will stood proved disspelling the suspicious circumstances surrounding its execution. In such an attempt, the learned counsel for the plaintiff drew the attention of the Court to the fact that the defendants had taken a stand that the testatrix was diagnosed to be a cancer patient even before the date of execution of the Will and hence, the deceased could not have executed the Will in a sound disposing state of mind. Learned counsel for the plaintiffs also pointed out the fact that three months prior to the date of death, testatrix executed a lease deed and in that lease deed, the second defendant has signed as an attestor and contended that the same would show that even three months prior to the date of death, the testatrix was having the faculty of understanding and was found with sound disposing state of mind. The said lease deed dated 22.05.2001 has been marked as Ex.P4. Apart from having admitted to have signed as a witness in the said document, the second defendant (DW1) has also admitted in his evidence that his grandmother, namely Swarnam Lakshmi Ratan used to cook for herself and her husband even in 2000. It is also his evidence that his grandparents derived no help from their son, namely the second plaintiff Ramesh Lakshmi Ratan even though he was residing in the first floor of the very same building and they had their own mess and his grandmother, namely Swarnam Lakshmi Ratan used to cook for herself and her husband. He has also stated in his evidence that his grandmother used to cook for herself till about last two months prior to her death when her health condition became serious. Of course, the said evidence of Dw1 would show that the testatrix was possessed of sound disposing state of mind till about two months prior to her death in 2001. The suit Will is said to have been executed on 17.07.1998. Therefore, the contention of the learned counsel for the plaintiff that the above said evidence of DW1 would prove the sound disposing state of mind of the testatrix on the date of Ex.P2 deserves countenance.

37. Learned counsel for the plaintiff has also contended that the defendants had not taken any stand questioning the genuineness of Ex.P2-Will apart from contending that the said Will came to be obtained using undue influence; that therefore, the onus on the plaintiff to prove the due execution of the Will stands discharged. In support of his contention, learned counsel for the plaintiff pointed out the fact that the first defendant took only a defence of undue influence and coercion and that the second defendant without filing a separate written statement had simply adopted the written statement of the first defendant. In addition, learned counsel for the plaintiff has also pointed out the answer given by DW1 whereby he has admitted that he was aware that the first defendant had stated in the affidavit of objection marked as Ex.P3 that her grandmother was influenced and coerced by her uncle to execute the Will and DW1 was also adopting the very same version of his sister. It is true that such a plea of defence has been taken by the first defendant in the affidavit of objections and DW1 has also stated in his evidence in cross-examination that he is adopting the plea of his sister. But, the same shall not be enough to show that the burden of proof cast on the plaintiff to prove the execution of the Will stands discharged. It is obvious from Ex.P3 itself that the plea of undue influence and coercion has been taken as an additional plea to the earlier plea in the very same paragraph wherein it has been stated as follows:

"The Will of Late Swarnam Lakshmi Ratan subject matter of the OP is not genuine and correct and the same has not been brought about with the knowledge of the contents or application of mind of Swarnam Lakshmi Ratan. First of all it is highly doubtful whether Swarnam Lakshmi Ratan herself has executed this Will"

The additional plea of undue influence and coercion has been taken without prejudice to the earlier plea regarding the genuineness of the Will. When such is the case, the attempt made by the learned counsel for the plaintiff to show that the genuineness of the Will had not been challenged by the defendants and they had chosen to admit the execution of the document by Swarnam Lakshmi Ratan but they have claimed that the same was vitiated by the factors undue influence and coercion has got to be discountenanced.

38. The learned counsel for the plaintiff has cited a number of judgments dealing with what would constitute suspicious circumstance, how the suspicious circumstances are to be disspelled and how the evidence in a case wherein a Will propounded by the beneficiary is to be dealt with. The learned counsel for the plaintiff has cited a judgment of a Division Bench of this Court in Corra Vedachalam Chetty Vs. G.Janakiraman reported in 2001 (3) CTC 283 to show that the probate Court should not start with the presumption that the Will is not genuine and that the object of probate proceedings is not to render the Will ineffective but to make it effective and render terms of the Will operative. Of course, the general preposition enunciated in the judgment that the Court should not start with a presumption of suspicion and the object of probate proceedings is not to render the Will ineffective but to make it effective cannot be challenged. Even in that judgment it has not been stated that when there are suspicious circumstances surrounding the Will propounded by the beneficiary, the Will is bound to be probated without the suspicions being disspelled. What has been stated therein is that the persons opposing the grant of probate were not able to show the existence of suspicious circumstances. In the said case itself, it was held that the mere delay in approaching the Court for probate per se will not render the Will fraudulent or untrue. But it has not been stated that the delay shall not be a suspicious circumstance, even if such delay is not explained. In this case, we have seen that the plaintiffs delayed till the death of the husband of the testatrix and even after the death of the husband of the testatrix, till a demand was made by the defendants for mutation of names in property records, the existence of the Will was not made known to the defendants and it was not made public.

39. Learned counsel for the plaintiff also relied on the Judgement of the Supreme Court in Savithri & Others V.Karthyayani Amma & Others reported in 2008-1-L.W.255 wherein it was held that the mere fact that the beneficiaries under the Will took an active role in the matter of execution of the Will itself would not be sufficient to hold that the execution thereof had not been proved. Of course, it is true that the mere fact of active role played by the beneficiary in seeing the Will executed per se will not be enough to hold that the execution has not been proved or that it has been disproved. But it has been held in a number of cases that the fact that the beneficiary played active role in having the Will executed is also one of the suspicious circumstances to be taken into consideration while deciding the question of genuineness of the Will. The same is the view expressed by the Hon'ble Supreme Court in Pentakota Satyanarayana and others Vs. Pentakota Seetharatnam and others reported in AIR 2005 Scheduled Caste 4362. In Smt. Indu Bala Bose and Othes V.Manindra Chandra Bose and Another reported in (1982) 1 SCC 20, the Hon'ble Supreme Court has held that the burden of the propounder to remove all doubts and explain the suspicious circumstances to the full satisfaction of the Court is heavier where the propounder involved in the execution of the Will and he is also a beneficiary. However, on facts in that case the Supreme Court held that the circumstances pointed out in the said case did not constitute suspicious circumstances. In Meenakshiammal (dead) Through LRS and others Vs. Chandrasekaran and another reported in 2005 (1) SCC 280 also it has been held that in the presence of suspicious circumstances surrounding the execution of the Will, onus is on the propounder to explain the said circumstances to the satisfaction of the Court before it accepts the Will to be genuine. The Hon'ble Supreme Court went further and observed that the suspicion must be such as is inherent in the transaction itself and not a doubt that may arise from conflict of testimonies which becomes apparent on investigation of the transaction. All the above said observations made in the judgment cited by the learned counsel for the plaintiff are helpful to ascertain the scope of law and they are not helpful to the plaintiff in any way because in this case, as pointed out supra, there are a number of suspicious circumstances which remain unexplained by the plaintiff. In the case on hand, there are a number of suspicious circumstance which cannot be said to be doubts that have arisen from the conflict of testimonies that became apparent on the investigation of the transaction. The suspicious circumstances pointed out supra are inherent in the transaction itself. Therefore, the burden of explaining those suspicious circumstances lies heavily on the propounder of the Will, namely the surviving plaintiff. He has not successfully explained the above said circumstances disspelling the suspicion.

40. The other judgments cited by the learned counsel for the plaintiff are touching the question of proof of coercion and undue influence and this Court considers it unnecessary to refer to them because of its finding recorded above that the mental faculty of the testatrix was good even about two months before the date of her death (more than two years after the date of Ex.P2) and that excepting a bald allegation that the testatrix could have been coerced or unduly influenced, there is no positive evidence on the side of the defendants to prove that there was in fact such coercion or undue influence to discharge the burden of the person who pleads such vitiating factors. However, it has been held supra that the mere failure on the part of the defendants to prove their case of coercion or undue influence as an additional plea without prejudice to the main plea taken that the Will could not be genuine shall not dispense with the due proof of the execution of the Will dis-spelling suspicious circumstances surrounding its execution. The propounder of the Will is expected to prove the actual execution and the fact that the executant signed the document knowing its contents sufficient to discharge the burden of proof cast on the propounder and shift the burden on the person who disputes it. In this case, the surviving plaintiff who is the propounder of the Will has not discharged his burden of proving the above said aspects, besides there being more number of suspicious circumstances surrounding the execution of the Will. Attestor of the Will, as PW2, has not testified to the effect that he was requested by the testratix to be an attestor and to attest the Will. He has also not stated that the Will was read over and explained to the testatrix and testatrix after understanding the contents and accepting the correctness of the same, signed it. In addition to that we have also seen that the attestors as well as the executor named in the Will are none other than the partners of the auditing firm dealing with the Income Tax accounts of the second plaintiff (PW2) and that PW2 happened to be a person having a long time acquaintance of the second plaintiff PW1. Overall consideration of the evidence shows the existence of more number of suspicious circumstances indicated supra, which have not been explained by the plaintiff and the cumulative effect of the same will support the finding that the propounder of the Will has not proved the genuineness and due execution of the Will by the testatrix and that therefore, the suit for the grant of Letters of Administration has got to be dismissed.

41. For all the reasons stated above, this Court comes to the conclusion that the plaintiff is not entitled to the relief of grant of Letters of Administration with Will annexed and the suit is liable to be dismissed with costs.

42. In the result, the Testamentary Original Suit is dismissed with costs. 

.       .2012
Index: Yes/No
Internet: Yes/No

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P.R.SHIVAKUMAR, J.

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Pre-delivery Judgment in
T.O.S.No.21 of 2008
















Dated :       .     .2012