Madras High Court
K.Ramalingam vs Anjalai .. Caveator/Defendant
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 05.11.2015
Delivered on : 24.11.2015
CORAM:
THE HON'BLE MR. JUSTICE M.SATHYANARAYANAN
T.O.S.Nos.22 and 25 of 2005
(O.P.Nos.240 and 385 of 2002)
K.Ramalingam .. Petitioner in T.O.S.No.22/2005
/Plaintiff
and
Caveator/Defendant
in T.O.S.No.25/2005
Vs.
Anjalai .. Caveator/Defendant
in T.O.S.No.22/2005
and
Petitioner/Plaintiff in
T.O.S.No.25/2005
Prayers: Petitions filed under Sections 232 and 276 of the Indian Succession Act, XXXIX of 1925, for the grant of Letters of Administration.
For Petitioner/Plaintiff : Mr.P.Ravishankar Rao
in T.O.S.No.22/2005
Mr.S.Sureshkumar
in T.O.S.No.25/2005
For Defendant : Mr.P.Ravishankar Rao
in T.O.S.No.25/2005
Mr.S.Sureshkumar
in T.O.S.No.22/2005
C O M M O N J U D G M E N T
Thiru.K.Ramalingam filed O.P.No.240 of 2002 for grant of Letters of Administration in respect of the Will dated 16.03.1998 executed by his mother Tmt.M.Dhanabakkiam Ammal in his favour and in the said petition, caveat was lodged by the second respondent namely Tmt.J.Anjalai- younger sister of the petitioner and therefore, it was converted and registered as T.O.S.No.22 of 2005. The second respondent in O.P.No.240 of 2002 filed O.P.No.385 of 2002 praying for issuance of Letters of Administration in respect of Will dated 18.05.1994 executed by her mother Tmt.M.Dhanabakkiam Ammal in her favour and the second respondent in the said Original Petition has lodged a caveat and therefore, the said Original Petition was converted and registered as T.O.S.No.25 of 2005.
2. The pleadings in T.O.S.No.22 of 2005 are as follows:
2.1. The plaintiff, namely Thiru.K.Ramalingam would aver that his mother late Tmt.Dhanabakkiam Ammal ordinarily reside at Door No.65, 10th Street, Sowrashtra Nagar, Choolaimedu, Chennai-94 and she died on 04.10.1998 and at the time of her demise, she left behind the above said house property which falls within the jurisdiction of this Court. It is further averred that Tmt.Dhanabakkiam Ammal, while was alive, has executed a Will dated 16.03.1998 at her residence, which was registered as Doc.No.29 of 1998 on the file of the Sub Registrar Office at Kodambakkam in the presence of witnesses, whose names appear at the foot of the Last Will and Testament. As per the Will it has been stated by Tmt.Dhanabhakkiam Ammal that out of wedlock she begot two sons, namely Palani and Ramalingam and two daughters, namely Rajeswari and Anjalai and one of the daughter, namely Rajeswari got married and predeceased the plaintiff without any issue and her husband also predeceased her. The plaintiff would further aver that under the Will, the deceased has not named anybody as Executor and named the plaintiff as Sole Legatee and beneficiary and he undertakes to duly administer the property and further given usual undertaking and prayed for probating the Will and stated that he was not able to probate immediately, because the Original Will was misplaced and prayed for issuance of Letters of Administration in respect of the said Will.
2.2. The defendant, namely Anjalai filed a written statement denying the averments made in the plaint and she would state that the Will dated 16.03.1998, said to have been executed by Tmt.Dhanabakkiam Ammal in favour of Ramalingam, is not a genuine one and she apprehends that it is a forged and fabricated one. It is further averred by the defendant that it is also doubtful whether the deceased Tmt.Dhanabakkiam Ammal personally went to the Registrar Office on 16.03.1998 to execute the Will. It is admitted that the Suit Property is the self acquired property of Tmt.Dhanabakkiam Ammal, however there is no reason or compelling circumstances for her to bequeath the property in favour of Ramalingam as he was not caring or maintaining the deceased during her last days and she was maintained by the defendant only and due to the said fact and love and affection shown by her, Tmt.Dhanabakkiam Ammal executed a Will dated 18.05.1994 in her favour and having come to know of such execution, the plaintiff Ramalingam has created a Will dated 16.03.1998 with a view to deprive her the benefits of the Will. It is further stated in the written statement that the plaintiff was aware of the filing of O.P.No.385 of 2002 by the defendant, but he has made a false declaration that no application has been made for the issue of Letters of Administration and the delay in approaching the Court for probating the Will/issuance of Letters of Administration was due to the fact that the plaintiff has created the Will dated 16.03.1998 in his favour and prays for dismissal of the Suit.
3. The pleadings in T.O.S.No.25 of 2005 are as follows:
3.1. The plaintiff, namely Anjalai would aver among other things that her mother Tmt.Dhanabakkiam Ammal, during her life time has executed a Will dated 18.05.1994 in her favour, which was registered on 20.05.1994 as Doc.No.93/1994 on the file of the Sub Registrar Office at Kodambakkam in the presence of attesting witnesses namely, Jayanthi and K.Lakshmanan and the said Will was drafted by Thiru.V.C.Rangadurai, Advocate, Chennai and the attesting witnesses are not related to the deceased and their present whereabouts are not known to her and she was not in a position to trace and contact them inspite of her best efforts. It is further averred that Tmt.Dhanabakkiam Ammal-testator of the Will dated 18.05.1994 was in a sound state of mind at the time of execution and registration of Will and it was voluntarily executed and the testator was not subjected to compulsion, coercion, undue influence, threat or force for executing the Will, which was registered under the provisions of the Registration Act and the testator has disposed of the property according to her free will and she did not execute the Will or Testament subsequent to the Will dated 18.05.1994 and no person was nominated as the Executor of the said Will. It is further averred that she is only a beneficiary as per the above said Will and she has not bequeathed anything to the respondents/defendants, namely Palani and Ramalingam and also given usual undertaking and prayed for grant of Letters of Administration in respect of the Will dated 18.05.1994.
3.2. The defendant, namely K.Ramalingam, filed written statement denying the averments made in the plaint and he would aver that the alleged Will dated 18.05.1994 executed in favour of the plaintiff, namely Anjalai has been revoked by another Will dated 16.03.1998 executed in his favour and the plaintiff has filed O.P.No.240 of 2002 on the file of this Court after service of notice in O.P.No.385 of 2002. It is further stated in the written statement that her sister/plaintiff has deserted her husband and started living in the Suit property and she has also obtained substantial property from her husband and also took a stand that his sister, namely Anjalai took his mother, who was aged 80 years during the absence of family members and got the Will dated 18.05.1994 executed in her favour. It is further averred that her mother has also gifted her 15 milch cows in favour of his sister Anjalai and the said fact has not been disclosed in the alleged Will dated 18.05.1994. The defendant would further aver that her mother has mortgaged the suit property in favour of Thiru.S.R.Ramanathiah and since no payment was made, he instituted a Suit in O.S.No.6151/1984 on the file of the XII Assistant City Civil Court, Chennai for recovery of the amount due under mortgage and a preliminary decree was passed on 05.09.1986 and after the demise of Thiru.S.R.Ramanathiah, his son brought himself on record as the second plaintiff and he filed I.A.No.16066/1989 and obtained final decree for sale and thereafter, the defendant paid the decree amount in full satisfaction of the decree and redeemed the suit property. It is also the specific stand of the defendant that his mother was with him and he was maintaining her well and her sister was deserted by her husband and she might have created the Will dated 18.05.1994 without her knowledge and to cover up her evil design, she is not willing to call upon the attesting witnesses who are the residents of the same locality and reiterated that the Will dated 18.05.1994 was cancelled and her mother had executed and registered her last Will dated 16.03.1998 in his favour and therefore the alleged Will dated 18.05.1994 has lost its force, effect and value and prayed for dismissal of the Suit.
4. This Court, upon perusal of the pleadings and other materials on record, framed the following issues in T.O.S.No.22 of 2005:
1. Whether the Will dated 16.03.1998 alleged to have been executed by deceased Dhanabakkiam is genuine?
2. Whether the OP and the TOS are barred by limitation?
3. Whether the plaintiff is entitled to Letters of Administration?
4.To what other relief the plaintiff is entitled to?
The following issues are framed in T.O.S.No.25 of 2005:
1.Whether the deceased M.Dhanabakkiam Ammal executed the Will dated 18.05.1994 volitionally and voluntarily, bequeathing her property in favour of the petitioner and whether it was duly attested by the witness?
2. Whether the petitioner is entitled for grant of Letters of Administration with the Will annexed therewith?
5. The plaintiff in T.O.S.No.22/2005, namely Ramalingam examined himself as PW1 and examined two attesting witnesses to the Will dated 16.03.1998 as PWs.2 and 3. The plaintiff in T.O.S.No.25/2005, namely Anjalai examined herself as DW1 and examined one of the attesting witnesses to the Will dated 18.05.1994 as DW2. Exs.P1 to P13 were marked on behalf of the plaintiff in T.O.S.No.22 of 2005 and Exs.D1 and D2 were marked on behalf of the plaintiff in T.O.S.No.25 of 2005. On behalf of the plaintiff in T.O.S.No.22 of 2005, namely K.Ramalingam, written arguments and submissions were filed.
6. This Court heard the submissions of Mr.P.Ravi Shankar Rao, learned counsel appearing for the plaintiff in T.O.S.No.22 of 2005/defendant in T.O.S.No.25 of 2005 and Mr.S.Sureshkumar, learned counsel appearing for the plaintiff in T.O.S.No.25 of 2005/defendant in T.O.S.No.22 of 2005.
Issue No.2 in T.O.S.No.22 of 2005
7. O.P.No.240 of 2002 (T.O.S.No.22 of 2005) was presented before the Registry of this Court on 21.06.2001 and it came to be numbered during the year 2002. O.P.No.385 of 2002 (T.O.S.No.25 of 2005) was presented before the Registry of this Court on 21.12.2000 and it came to be numbered during the year 2002.
8. In Krishna Kumar Sharma v. Rajesh Kumar Sharma [AIR 2009 SC 3247], the issue arose for consideration is to the applicability of the Limitation Act to proceedings seeking for probate. The Hon'ble Supreme Court of India, in the said decision, has taken into consideration the decision of the Bombay High Court in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani [AIR 1983 Bom 268] as well as its own decision in Kunvarjeet Singh Khandpur v. Kirandeep Kaur and Others [2008 (8) SCC 463] and approved the decision of the Bombay High Court and it is relevant to extract para 9 of the said decision:
9. Similarly, reference was made to a decision of the Bombay High Court's case in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani (AIR 1983 Bom 268).
Para 16 reads as follows:
16.Rejecting Mr.Dalapatral's contention, I summarise my conclusions thus:-
(a) under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made;
(b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted;
(c) such an application is for the Court's permission to perform a legal duty created by a Will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed;
(d) the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased's death;
(e) delay beyond 3 years after the deceased's death would arose suspicion and greater the delay, greater would be the suspicion;
(f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion of delay no longer operates.
As per the ratio laid down in the said decision, delay beyond three years after the deceased's death would arose suspicion and greater the delay, greater would be the suspicion and such delay must be explained, but cannot be equated with the absolute bar of limitation and once execution and attestation are proved, suspicion of delay no longer operates.
9. In view of the said proposition laid down by the Hon'ble Supreme Court of India, this Court is of the view that both the O.Ps/TOS are not barred by limitation and Issue No.2 in T.O.S.No.22 of 2005 is answered accordingly.
Issue No.1 in both T.O.S.No.22 of 2005 and T.O.S.No.25 of 2005
10. Will dated 16.03.1998 executed in favour of K.Ramalingam/plaintiff in T.O.S.No.22 of 2005 is marked as Ex.P12 and the Will dated 18.05.1994 executed in favour of the Anjalai/plaintiff in T.O.S.No.25 of 2005 is marked as Ex.D1 and both are registered Wills. The plaintiff in T.O.S.No.22 of 2005 has filed proof affidavit in lieu of chief examination, wherein he has stated that his mother Tmt.Dhanabakkiam Ammal was maintaining herds of 15 to 20 milch cows and running milk business and from income earned out of the said business purchased the Suit property and constructed terraced house with two rooms and she educated him and he got his B.A. Degree in the year 1977. It is further stated in the proof affidavit by PW1 that her sister/defendant, namely Anjalai was given marriage to one Janarthanam, a landlord of a village near Uthiramerur and out of wedlock she begotten two female children and thereafter, she deserted her husband and returned to parental home and her mother constructed a hut in open terrace of the house for the purpose of settling the defendant and her two children and the defendant also filed M.C.No.42 of 1981 on the file of the II Metropolitan Magistrate Court, Egmore, Chennai and obtained an order of maintenance @ Rs.90 per month from her husband and her husband settled an immovable property in Punja S.No.583/G 19 and P38/3B 0.81 admeasuring 1 acre worth Rs.1,00,000/- in Pattamkulam Village near Uthiramerur in her favour in lieu of payment of monthly maintenance and a joint memo of compromise was also filed and her husband only made arrangements for marriage of her two daughters.
11. It is further stated in the proof affidavit that the plaintiff joined as an Assistant in the City Civil Court at Chennai during the year 1989 and her mother conducted his marriage on 17.04.1987 and her mother borrowed money from one S.R.Ramanathaiah by mortgaging the Suit property and since the amounts due and payable under the mortgage has not been paid, he instituted a Suit in O.S.No.6151 of 1984 (Ex.P1) and obtained a preliminary decree on 05.09.1986 and after his demise, his son was brought on record and instituted a final decree proceedings in I.A.No.16085/1989 (Ex.P2) and the plaintiff has filed a counter affidavit in the said application (Ex.P4) stating that he has paid a sum of Rs.4,500/- and Rs.7,250/- on 29.01.1990 as per Full Satisfaction Memo and the Court has also recorded the said memo under Ex.P5. PW1, in his proof affidavit, has also stated that out of love and affection over her younger son, who is also suffering from disability, she promised to settle the property absolutely in his favour, but the defendant/Anjalai prevented his mother from doing so and therefore, she was constrained to file O.S.No.6958 of 1993 (Ex.P6) on the file of the City Civil Court, Chennai against his mother for a permanent injunction restraining her from alienating the Suit property and without his mother's knowledge, the defendant has engaged the services of an Advocate and forged the signature of his mother in the written statement (Ex.P7) and the said Suit was dismissed on 07.02.1996 (Ex.P8) and during the pendency of the Suit, the defendant prepared a Will under Ex.D1 with the help of the same Advocate, who was defending his mother in the Suit and the said Will came to be known through legal notice dated 14.09.2000 (Ex.P9) and a suitable reply was given under Ex.P10, which was acknowledged under Ex.P11. PW1, in his chief examination, would further claim that her mother resided with his family and she maintained her till her death dated 04.10.1998 and she executed a Will with sound state of mind, which was also registered under Ex.P12 at the Sub Registrar Officer, Kodambakkam and it has been stated that she has already given 15 milch cows to the defendant and further stated that she has cancelled all the Wills said to have been executed by her and therefore, it lost force and cannot be enforced.
12. In the cross examination in T.O.S.No.22 of 2005, PW1 has denied the suggestion that Dhanabakkiam Ammal educated him out of her income and admittedly, there was no evidence to prove that he was assisting his mother in the milk business. PW1 further deposed that there may be evidence to show that his sister's husband has settled immovable property worth Rs.1,00,000/- in her favour, he cannot say the nature of such conveyance and there is no evidence to prove with regard to the proceeding in M.C.No.42/1981 and M.P.No.226/1986. It was further deposed by PW1 in the cross examination that he joined in the City Civil Court, Chennai in the year 1983 as temporary staff and after his marriage, his services were regularized and added that his mother and sister were living together at Door No.65, 10th Street, Sourashtra Nagar, Choolaimedu, Chennai-94. It was further deposed by PW1 in the cross examination that he is not a party in O.S.No.6151/1984 instituted by Mr.S.R.Ramanathaiah (Ex.P1) and in the compromise memo, he signed as a witness, however he has not filed the endorsement made on the compromise memo and the plaint and would further admit that he has not signed as a witness in the Full Satisfaction Memo and that he has not filed any record to prove the payments made in connection with the compromise decree in O.S.No.6151/1984. PW1 further deposed in the cross examination that he instituted a Suit in O.S.No.6955/1993 against his mother and the signature found in the written statement is not that of his mother and he did not take any proceedings to establish that his mother's signature found in the written statement is a forged one and it is also not mentioned in the judgment in O.S.No.6955/1993 that the signature found in the written statement is forged. It is further deposed by him that though he is a witness in the above said Suit, his deposition with regard to the signature found in the written statement was not recorded by the Court and though he came to know later, has not made any objection and he has not preferred any appeal against the dismissal of the Suit. PW1 denied the suggestion that his relationship with his mother is not cordial and she was not living with him and there was a separate ration card for her sister and her mother and name of his mother is found in his ration card also, but he has not filed the same before the Court. PW1 denied the suggestion that since he did not help his mother Dhanabakkiam Ammal and since he was giving trouble to her by filing cases, she had no affection towards him.
13. PW1 further deposed in the cross examination that when Ex.P12 Will was written, he was present and do not remember the name of the Advocate who wrote the will and PWs.2 and 3 had signed as witnesses and denied the suggestion that the signature and thumb impression found in Ex.P12 are not that of Tmt.Dhanabakkiam Ammal and it was made in the Registrar Office. PW1 further deposed that Ex.P12 Will was written, signed and executed in the Office of the Registrar and the Advocate was also present at the time of signing and executing the Will. In respect of the question as to the genuineness of Ex.P12 Will, PW12 denied the suggestion that it was manipulated by him and insofar as the signature found in Ex.P12 Will, he would depose that since his mother was illiterate, she has not signed cogently and that is the reason for the difference in the signature found in Ex.P12 and denied the suggestion that the Will executed by her mother in favour of Anjalai is a genuine one.
14. One of the attestors of the Will, namely S.Amirthavalli was examined as PW2 and she has filed a proof affidavit in lieu of chief examination and in her cross examination, she would state that she do not know the contents of the proof affidavit and she have come here to depose in respect of the land dispute between the parties and do not know whether any Settlement Partition Deed or Will was executed. PW2 would further depose that while Tmt.Dhanabakkiam Ammal was alive, she wanted her to sign in the said document and the said document conferring right on her son and she subscribed her signature in the Office of the Registrar and no Advocate or anybody else was present at that time and it was signed by Tmt.Dhanabakkiam Ammal and Ramalingam and at that time, the Testatrix was aged 80 years. PW2 further deposed that Tmt.Dhanabakkiam Ammal affixed her thumb impression and she puts her signature and Tmt.Dhanabakkiam Ammal did not sign in Ex.P12 Will.
15. Another attestor of the Will, namely Thiru.B.Anandan was examined as PW3 and he has filed a proof affidavit in lieu of chief examination and in the cross examination, Tmt.Dhanabakkiam Ammal tool him that she want to settle her property to his younger son, namely K.Ramalingam, who is having a disability and instructed her Advocate to prepare the Will and made a request to PW3 to sign as a witness and on 16.03.1998, she took him along with another witness/PW2 to the Advocate office in the High Court Buildings and the Advocate prepared the Will in Tamil and he read the contents of the Will in the presence of the Testatrix, PWs.2 and 3 and the Testatrix has put her signature in Tamil and affixed her left hand thumb impression in all the pages and all the corrections in their presence and thereafter, PWs.2 and 3 had put their signature in the Will and thereafter went along with the Advocate, Testatrix and PW2 to the office of the Sub Registrar Office at Kodambakkam and signed as identifier/witness in Ex.P12 Will before the Sub Registrar, Kodambakkam. PW3 would further depose that the Advocate Sundaram has prepared the Will and called him for the purpose of registration and he went to the Registrar Office and he did not know who brought the Will to the Registrar Office and he signed only in the Register of the Registrar Officer and he did not sign in any other document and denied the suggestion that he is giving false evidence.
16. DW1/Plaintiff in T.O.S.No.25 of 2005 has filed a common proof affidavit in lieu of chief examination wherein he has deposed among other things that her brother, namely K.Ramalingam did not treat her mother with respect, love and affection and also filed a case against her mother and her mother had to defend the suit by appointing an Advocate and her mother was very much dejected due to the attitude of her brother. DW1 further stated that the Will dated 18.05.1994 is the last Will and testament of her mother and the Will /Ex.P12 dated 16.03.1998 in favour of his brother is a false one and through her Exs.D1 to D3 were marked. DW1 in the cross examination would depose that she got married in the year 1975 and they lived together with her husband for 7 years and she got two daughters and when she came to parental home for second delivery, her husband married another lady and therefore, she separated himself from him and also filed a maintenance case before the Magistrate Court, Egmore wherein an order was passed directing her husband to pay Rs.90/- per month and by virtue of compromise, her husband gave one acre of land in lieu of maintenance by way of one time settlement and she sold the property for two lakhs and made use of that money for the marriage of her first daughter and performed the marriage of her second daughter by obtaining personal loan. DW1 would further depose that she lived with her mother till her demise and her brother was also residing in the very same house and he is a disabled person and got two sons and one daughter. DW1 denied the suggestion that her mother expressed her desire to bequeath her property to Ramalingam and her brother used to quarrel with her mother and herself and he used to threaten us to vacate the house and therefore, they gave complaint to the police and her brother has also filed O.S.No.6955/1993 (Ex.P6) against her mother and she made arrangements to defend the case and her mother has also filed written statement. Ex.P7 was sworn to DW1 and she would depose that the signature is not that of her mother and the signature found in Ex.D1 is his mother's signature and her mother borrowed money from Mr.Ramanathan and she repaid the loan and the parent document of the Suit property is with her mother and she gave it to me and denied the suggestion that her mother used to live with both families, but she lived only with her.
17. DW1 further deposed that the suit instituted by her brother against her mother is pending and Ex.D1 Will was prepared by her Advocate Mr.V.C.Ranga Durai and he is not alive. She would further depose that the attesting witness to Ex.D1 Will are Mr.Lakshmanan and Jayanthi (DW2) and would admit that in her petition, the whereabouts of the witnesses were not known and denied the suggestion that the Will Ex.D1 executed in her favour is not valid.
18. DW2, one of the attesting witness to Ex.D1, was examined in chief and she would state that she was present when Tmt.Dhanabakkiam signed the Will and he saw her signing the Will. At this juncture also, another person by name Lakshmanan also signed as witness. DW2 in the cross examination deposed that she is residing in the next street of Testatrix house and it is about 10 minutes walkable distance and she used to purchase milk and curd from Testatrix and she was called by the Testatrix for signing the Will and she do not know the address of the another attesting witness, namely Lakshmanan. She would further depose that she vacated from the earlier address and after search, she was brought and she has given her evidence about a year back and signed in the Will. She would further depose that both the defendant and the plaintiff are residing in the same address and Tmt.Dhanabakkiam Ammal told that she is writing the Will in favour of her daughter Anjalai and denied the suggestion that the Will was signed only at the Registrar Office and not at the office of the Advocate.
19. One Ramanathaiah has filed a Suit in O.S.No.6151/1984 on the file of the City Civil Court, Chennai against the mother of the plaintiff and defendant, namely Tmt.Dhanabakkiam and obtained a preliminary decree under Ex.P1 dated 05.09.1986 and after his demise, his son came on record and instituted final proceedings in I.A.No.16065/1989 [Exs.P2 and P3]. The plaintiff in T.O.S.No.22 of 2005 has filed a counter affidavit under Ex.P4 stating among other things that he has paid Rs.4,500/- on behalf of the mother and defendant in favour of Thiru.P.Subramani towards the decree on 16.11.1986 and hold a stamp receipt for the said sum and ready to pay the balance amount after the plaintiff in O.S.No.6151/1984 furnishing particulars of accounts due after giving credits to Rs.4,500/-. Under Ex.P5 Full Satisfaction Memo was recorded by the XII Assistant City Civil Court for having received a sum of Rs.7,250/- on 29.01.1990.
20. The plaintiff in T.O.S.No.22 of 2005, who was examined as PW1 during the course of cross examination would admit that as per Ex.P4, he was not a party in O.S.No.6151/1984 and not signed as witness and not filed the compromise endorsement and the plaint and not signed as a witness in the Full Satisfaction memo and has not filed any record to prove the payments made by him in the above said Suit. Therefore, the plaintiff/PW1 in T.O.S.No.22 of 2005 has not filed any proof as to the assistance rendered by him to his mother in the proceedings in O.S.No.6151 of 1984 (Exs.P1 to P5). The plaintiff in T.O.S.No.22 of 2005 filed O.S.No.6955 of 1993 on the file of the XII Assistant City Civil Court, against his mother praying for permanent injunction restraining her from alienating the present Suit property without reference to her in violation of the understanding under the oral family arrangement. The plaint in the said Suit is marked as Ex.P6 and a perusal of the plaint would disclose that the Suit property was a plot of land purchased by her mother and jewels left by his father and the family had another property at Door No.212, Choolai High Road, Chennai-94, which was purchased in the name of the plaintiff and Palani, his brother-first defendant and he is living in the Suit property from the year 1980 onwards in a temporary hut put thereon. It is further stated in Ex.P6 that her mother created an Equitable Mortgage for the purpose of performing marriage of the defendant in T.O.S.No.22 of 2005/plaintiff in T.O.S.No.25 of 2005, namely Anjalai and during the year 1980, Palani/first defendant was separated from the family and hence the plaintiff/PW1 persuaded the Mr.Subramaniam to take over the house bearing Door No.212, Choolai High Road, Chennai-94 on the specific assurance that he would get the schedule mentioned property after the life time of Tmt.Dhanabakkiam Ammal. The plaintiff in T.O.S.No.25 of 2005 was separated from her husband and she is now living with her mother Tmt.Dhanabakkiam Ammal. It is further stated in Ex.P6 that the plaintiff is employed in the City Civil Court, Chennai from 1982 and has contributed considerable sums of money for the upkeep and maintenance of schedule mentioned property and had also put up additional constructions and in respect of mortgage Suit instituted against her husband under Ex.P1, he has paid a sum of Rs.4,500/- and subsequently paid a sum of Rs.7,250/- towards full and final settlement and apart from spending money, he has also improved the property and also paid statutory levies, however her mother and the defendant herein had started taking efforts to sell the property and therefore, constrained to file the above said Suit.
21. The mother of the plaintiff/Ramalingam and the defendant/Anjalai, who was arrayed as defendant in O.S.No.6955 of 1993 has filed a written statement, which was marked as Ex.P7 and as per the averments made in Ex.P7, Tmt.Dhanabakkiam Ammal never promised to give the Suit property to the plaintiff, namely Ramalingam and denied the fact of oral family arrangement put up by the plaintiff and also took a stand that he did not pay even a pie towards the discharge of mortgage debt and she never agreed not to encumber the property to enable the plaintiff to get it absolutely for himself after the lifetime of the defendant and also took a stand that she being the senior, having every eight to sell the property. It is further pleaded by her that the plaintiff is indulging in illegal tactics with a view to compel the defendant to give the property to him and prays for dismissal of the Suit.
22. PW1, namely Ramalingam, in the proof affidavit would state that without his mother, the defendant, namely Anjalai appointed an Advocate to defend the Suit and filed a written statement with forged signature of his mother. In the cross examination, PW1 would admit that the signature found in the written statement in O.S.No.6955 of 1993 is not that of his mother and in the judgment in the said Suit, marked as Ex.P8, no finding has been given as to the signature found in the written statement is forged. DW1, in her proof affidavit in lieu of chief examination, would state that her brother filed a Suit against her mother, which insisted her to defend the suit by appointing an Advocate and her mother was very much dejected due to the attitude of her mother. DW1, in the cross examination, would state that the signature found in the written statement, marked as Ex.P7, is not that of her mother and it is not her mother's signature. However, the fact remains that the written statement of Tmt.Dhanabakkiam Ammal under Ex.P7 was taken on record in O.S.No.6955 of 1993 and based on pleadings and evidence let in, judgment came to be rendered under Ex.P8. In the said Suit, two issues were framed viz. (a) Whether the Plaintiff is entitled to the decree for Permanent Injunction? and (b) What other reliefs the plaintiff is entitled to? In para 11 of the judgment (Ex.P8), a finding has been given that the plaintiff/PW1 did not state anything about the payment of Rs.10,000/- to her mother and in Exs.P9 to P13, marked in the said Suit, nothing has been stated about the payment made by the plaintiff to Mr.Ramanathaiah plaintiff in O.S.No.6151/1984. A further finding has been given that the evidence of PW1 is inconsistent and as per his evidence, the existence of oral family arrangement cannot be decided.
23. It is also pertinent to point out at this juncture that the plaintiff did not take any stand as to the non-signing of the written statement by her mother and in fact, no issue has also been framed to that effect. Therefore, at this belated point of time, it is not open to the plaintiff/PW1-K.Ramalingam to contend that the signature found in Ex.P7-written statement was not that of his mother. Though DW1 denies that the signature found in Ex.P7 is not that of his mother and the suit instituted by the plaintiff under Ex.P6 was dismissed under Ex.P8 on 07.02.1996 and no further challenge has been made and it has become final. During the pendency of Ex.P6-Suit instituted by the plaintiff, Will under Ex.D1 dated 18.05.1994 came to be executed in favour of the defendant, namely Anjalai and it was first in point of time.
24. Perusal of Ex.D1 would disclose that there are specific averments to the effect that the plaintiff is employed in the City Civil Court and he is residing with his wife separately and though he is disabled, giving frequent troubles to Tmt.Dhanabakkiam Ammal and Anjalai and they have also given complaints to police and having frequent quarrel with regard to transfer of the property in favour of him and also instituted a false case in the Court under Ex.P6. The testatrix has also recorded the fact that she is only defending the Court proceedings and her two children has no love or affection towards her and in the event of her death, they should not perform the ceremonies and her daughter alone should perform the ceremony. It has been further stated in Ex.D1 Will that her daughter/Anjalai is having two daughters and they are maintaining her and her daughter is not having any income and in order to perform the marriage of daughters, bequeathing the Suit property after her life time with absolute rights and a specific averment is also available that she do not want to give anything to her male children, namely Palani and Ramalingam.
25. Ex.P12-Will came to be executed in favour of the plaintiff on 16.03.1998 wherein the testatrix, namely Dhanabakkiam Ammal would state that at the time of execution, she is under the care and custody of her son, namely Ramalingam and since he is maintaining her properly, she wants to bequeath in his favour and therefore, she executed the said final Will and therefore, cancelled her earlier Will. Insofar as the defendant is concerned, she has given her 15 milch cows in her favour and therefore, she has bequeathed the Suit property to her sons and no purpose will be served by raising objections by her elder son, namely Palani and daughter, namely Anjalai.
26. Attesting witnesses to the respective Wills, who are examined as PWs.2 and 3 and DW2, had spoken about the signing of the Wills by the testatrix and witnessing the same by them. PW2, one of the attestors to Ex.P12-Will has deposed that she has signed the Will in the Office of the Registrar and no Advocate or anybody was present at that time and the testatrix has affixed the thumb impression and she put her signature and the testatrix did not sign the Will. PW3, another attesting witness, in the cross examination deposed that the Will was prepared in the Office of the Advocate and he read the contents in the presence of testatrix and PW2 and she had put her left hand thumb impression as well as in the corrections in their presence and thereafter, all of them went to the Sub Registrar Office and after identification, the Will was registered. PW3 would admit that he has subscribed his signature only in the office of the Sub Registrar and he did not sign any other document. DW2, one of the attesting witness to Ex.D1 Will would depose that she was residing in the next street to the testatrix and she used to purchase milk and curd from the testatrix and the Will was signed on 18.05.1994 and it was registered on 20.05.1994 and another attesting witness was also present at the time of signing the Will and he do not know the address of the another attesting witness and with regard to her non-availability, would state that though the first defendant aware of her, she did not know the exact present address and after search, she was brought before the Court and examined as witness and denied the suggestion that the Will was signed only in the Office of the Sub Registrar and not in the Advocate Office.
27. The learned counsel appearing for the plaintiff in T.O.S.No.22 of 2005, by placing reliance upon the decision in Shashi Kumar Banerjee and Others v. Subodh Kumar Banerjee [AIR 1964 SC 529] and would submit that though there are some discrepancies found in the testimonies examined on behalf of the plaintiff, allowance should be given due to the fact that Ex.P12 Will came to be executed on 16.03.1998 and the witnesses were examined during October 2011 and therefore, discrepancies bound to occur and by inviting the attention of this Court to para 17 of the judgment and would submit that the discrepancies are not so serious as to make them distrust the evidence of the two attesting witnesses in the light of passage of time. It is the further submission of the learned counsel appearing for the plaintiff that though Ex.D1 Will came into being at an earlier point of time on 18.05.1994, Ex.P12 is the last Will and Testament, wherein a specific averment is made that all the earlier Wills have been revoked and the testatrix has also given reasons as to why he has bequeathed the Suit property in favour of PW1 and as against the testimony of PW2, the plaintiff has examined all the attesting witnesses and therefore, probablised his case that the Will under Ex.P12 is a genuine one and can be acted upon.
28. In response to the said submission, the learned counsel appearing for the defendant/plaintiff in T.O.S.No.25 of 2005 has invited the attention of this Court to Ex.P12 Will and would submit that the said Will came into being under suspicious circumstances for the reason that in the preamble portion, street name has been omitted and in the Schedule of Property portion, material things were hand written and the testatrix has not affixed her signature as to the corrections made. It is the further submission of the learned counsel appearing for the defendant that the plaintiff has also instituted a Suit under Ex.P6 against his mother forcing her to defend the Suit and though he has pleaded oral family arrangement, the Trial Court has recorded a finding that he has miserably failed to prove and ultimately dismissed the Suit for permanent injunction and no further challenge has been made to the said dismissal and it has become final and in the light of the above said circumstances, it is highly improbable for the testatrix to execute Ex.P12 in favour of the plaintiff. The learned counsel appearing for the defendant has also pointed out inconsistencies in the testimonies of PWs.1 to 3 and would submit that where exactly the testatrix as well as the witnesses signed Ex.P12 Will is also not clear and therefore, the plaintiff has miserably failed to prove the genuineness of Ex.P12 Will and also placed reliance upon the following decisions:
(i) J.Naval Kishore v. D.Swarna Bhadran [2008 (1) CTC 97]
(ii) N.Govindarajan v. N.Leelavathy and Others [2011 (5) CTC 287]
29. In J.Naval Kishore v. D.Swarna Bhadran [2008 (1) CTC 97], the mode and manner with regard to proof of execution of Will has been enunciated as well as burden of proof and removal of suspicious circumstances and it has been held that burden of proof of due and valid execution of Will is on propounder and the Court must satisfy itself with not only genuineness of Will but also ensure that it is not fraught with any suspicious circumstance. In para 51 of the above cited judgment, the Division Bench of this Court has dealt with suspicious circumstances and by placing reliance upon the decisions in Venkatachala Iyengar, H. v. B.N.Thimmajamma [AIR 1959 SC 443], Surendra Pal and Ors. v. Saraswati Arora (Dr.) and another [AIR 1974 SC 1999] as well as Niranjan Umeshchandra Joshi v. Mridula Jyoti Rao [2007 (2) CTC 172] held that the evidence adduced by the plaintiff to prove the execution and attestation is not convincing and suspicious circumstances surrounding the execution of the Will, such as the conduct of the propounder, unnatural disposition and non-examination of the beneficiary should be taken into account and upheld the findings of the trial Court and dismissed the appeal.
30. In N.Govindarajan v. N.Leelavathy and Others [2011 (5) CTC 287], a Division Bench of this Court has dealt with the role of the attesting witnesses and held that the attestation of the Will is not an empty formality and it means signing a document for the purpose of testifying of the signatures of the executant and the attesting witness should put his signature on the Will animo attestandi.
31. The learned counsel appearing for the defendant would further submit that there are very many corrections in Ex.P12 and the same has not been signed by the testatrix and considering the strained circumstances between the testatrix and PW1, Ex.P12 Will is surrounded by suspicious circumstances. The learned counsel appearing for the defendant has drawn the attention of this Court to Ex.D1 Will and would submit that in the said Will, there was a specific averment available to the effect that DW1 is separated by her husband and she has two daughters of marriageable age and since she is maintaining the testatrix, she intended to bequeath the Suit property in her favour and further averments are available as to the strained relationship between the testatrix and two sons and therefore, Ex.D1 should be construed as genuine Will without surrounded by any suspicious circumstances.
32. In response to the said submission, learned counsel appearing for the plaintiff would submit that in Ex.P12 Will, a specific averment is available as to the physical disability suffered by the plaintiff and further that Tmt.Dhanabakkiam Ammal has also given 12 milch cows to DW1 for maintaining her and that the earlier Will executed by her has also been cancelled and therefore, there cannot be any suspicious circumstances with regard to execution of Ex.P12 Will in favour of PW1, namely K.Ramalingam.
33. This Court has carefully considered the submissions made by the respective learned counsel appearing for the parties.
34. It is not in dispute that there was strained relationship between the testatrix and PW1 for the reason that he instituted a Suit under Ex.P6 against her mother/testatrix for permanent injunction which came to be dismissed under Ex.P8/judgment and no further appeal has been filed challenging the said verdict. In the judgment under Ex.P8, a specific finding has been given that the plaintiff has miserably failed to prove the discharge of mortgage as well as the oral family arrangement and the payment of Rs.10,000/- to her. It is pertinent to point out at this juncture that Ex.D1 Will came into being on 18.05.1994 during the pendency of the said Suit. PW1 has admitted that his sister was separated from her husband on her own volition and in lieu of maintenance, she was given landed property from her husband and by selling the same, the marriage of her first daughter was solemnized and by obtaining loan she conducted the marriage of her second daughter. In Ex.D1 Will also, there is a recital to that effect as to the difficulties faced by her daughter and the trouble created by PW1 as well as police complaint given by her and the Suit under Ex.P6 filed by him. The Suit under Ex.P6 came to be dismissed on 07.02.1996 and Ex.P12 Will was executed in favour of the plaintiff on 16.03.1998 and the testatrix died on 12.11.1998, as evidenced by Ex.P13-Death Certificate.
35. Perusal of testimonies of PWs.1 to 3 would disclose that there is a grave discrepancy as to where the Will was prepared and the witnesses have signed the same. PW2, in her cross examination, would state among other things that the testatrix affixed her thumb impression and she has subscribed her signature and the testatrix did not sign in Ex.P12 Will. Thus, a grave doubt has been created as to the suspicious circumstances surrounding the execution of Ex.P12 Will and it is also confirmed by the fact that Ex.P12 Will is a typed document and writings have been made with regard to the street on which the property is located and in the Schedule of Property, very many writings have been made. PW2 in her re-examination would depose that the testatrix affixed only her thumb impression and PW3 would depose that initial Will was prepared in the Office of the Advocate in the High Court and it was signed by the testatrix and both PWs.2 and 3 signed the same, however in the cross examination done on 09.11.2011, he would depose that it was signed in the Office of the Registrar and he did not sign any other document.
36. In the light of strained relationship between the plaintiff/PW1 and the testatrix, as evidenced by Exs.P6 to P8, it is highly doubtful and improbable that the testatrix could have bequeathed the Suit property in favour of the plaintiff under Ex.P12.
37. Insofar as Ex.D1 Will is concerned, DW1 has deposed about the execution of Will in her favour and it was prepared by the Advocate Mr.V.C.Rangadurai, who is defending the testatrix in Ex.P6 Suit instituted by PW1 and in O.P.No.385 of 2005, she has stated that she is not in a position to trace the attestor of the Will. But, DW2, in her testimony would depose that she has shifted her residence to some other place and though it was found by the defendant, she did not know the present address and after search, she was brought and she gave her evidence and no suggestion was put to her in the cross examination that she was the concerned person and she has also denied the suggestion that the Will was prepared only in the Office of the Registrar and not in the Office of the Advocate. The testimony of DW2, one of the attestors to the Will, has not been shaken in the cross examination.
38. As already observed, mere registration of the Will would not dispel suspicion regards execution and registration of the Will and both Exs.P12 and D1 are registered Wills and in the light of the strained relationship between the testatrix and PW1, Ex.P12 Will is clothed with suspicious circumstances.
39. In Smt. Guro v. Atma Singh & Ors. [1992 (2) SCR 30], which has been referred to in Naval Kishore case (cited supra), it has been held as follows:
.... Where, however there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the Will could be accepted as genuine. Such suspicious circumstances may be a shaky signature, a feeble mind and unfair and unjust disposal of property or the propounder himself taking a leader part in the making of the Will under which he receives a substantial benefit the presence of suspicious circumstances makes the initial onus heavier and the propounder must remove all legitimate suspicion before the document can be accepted as the last Will of the testator. In the light of the above cited decision the presence of suspicious circumstances makes the initial onus heavier and the propounder must remove all legitimate suspicion before the document can be accepted as the last Will of the testator.
40. In the considered opinion of the Court, PW1 has failed to remove the above said legitimate suspicious circumstance with regard to execution of Ex.P12 Will in his favour.
41. Catena of decisions rendered by the Hon'ble Supreme Court of India with regard to proof and genuineness of the Will lay down the following propositions:
(a) The burden of proof that the will has been validly executed and is a genuine document is on the propounder and he/she is also required to prove that the testator has signed the Will and that he/she had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. The onus is on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any and if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. (see Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and Others- (2006) 13 SCC 433)
(b) In construing the language of the Will, the Court is entitled to put itself into the testator's armchair [Venkata Narasimha Appa Row v. Parthasarathy Appa Row (1913-14) 41 IA 51] and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, probability that he would use words in a particular sense.. [see Gnambal Ammal v. T.Raju Ayyar- AIR 1951 SC 139]
(c) As an order granting probate is a judgment in rem, the Court must also satisfy its conscience before it passes an order and for that requirement, existence of suspicious circumstances plays a prominent role. [see Anil Kak v. Kumari Sharada Raje and Others (2008) 7 SCC 695]
42. This Court, keeping in mind the ratio laid down in the above cited decisions, is of the view that the Will executed in favour of the plaintiff in T.O.S.No.22 of 2005, namely K.Ramalingam is surrounded by suspicious circumstances for the reason that in Ex.D1 Will executed in favour of the defendant/plaintiff in T.O.S.No.25 of 2005, namely Anjalai, it has been stated among other things about the frequent trouble caused to the testatrix as well as to her daughter and the filing of the Suit before the City Civil Court under Exs.P6 and P8 and it has been further averred that the plaintiff in T.O.S.No.25 of 2005 is living separately from her husband and she has got two daughters and the testatrix was also maintained by her and she is having no other income. It is also pertinent to point out at this juncture that the Suit in O.S.No.6995 of 1993 (Ex.P6) filed by the plaintiff in T.O.S.No.22 of 2005 has been attested and the judgment and decree came to be passed on 07.02.1996 under Ex.P8 and pendency of the Suit, Ex.D1 Will was executed in favour of the defendant in T.O.S.No.22 of 2005 and on account of such strained relationship, it is highly doubtful that the testatrix, of her own free will and volition, has executed Ex.P12 Will in favour of the plaintiff in T.O.S.No.22 of 2005 and that apart, in the typewritten copy of Ex.P12 Will, writings have been made and it has not been initialed/signed by the testatrix except the Schedule of Property portion, wherein she has affixed her thumb impression, which is also one of the suspicious circumstances to test the genuineness of Ex.P12 Will. There is also inconsistency in the testimony of PW2, one of the attesting witness and the inconsistencies galore in the testimonies of the witnesses PWs.1 to 3 and hence, it is wholly unsafe to rely on their testimonies for the purpose of granting relief to the plaintiff in T.O.S.No.22 of 2015.
43. Insofar as Ex.D1 Will is concerned, though the defendant in T.O.S.No.22 of 2005/plaintiff in T.O.S.No.25 of 2005 was not in a position to trace the witnesses and the oral evidence of DW2 would disclose that she has shifted her residence and though the defendant was aware of the same, she did not know her exact present address and after search she was brought for the purpose of giving evidence. The testimony of DWs.1 and 2 corroborate with material particulars and there are no grave or suspicious circumstances with regard to Ex.D1 Will. As already pointed out, the defendant/DW1 has been separated from her husband and she brought up her two daughters and one daughter was given marriage by selling the property which was given to her in lieu of maintenance and the second daughter's marriage was performed by obtaining personal loan and they are not cross examined on that aspect and the testimonies of DWs.1 and 2 are trust worthy and believable.
44. Therefore, Issue No.1 in T.O.S.No.22 of 2005 is answered in negative against the plaintiff and Issue No.1 in T.O.S.No.25 of 2005 is answered in affirmative in favour of the plaintiff.
Issue No.3 in T.O.S.No.22 of 2005 and Issue No.2 in T.O.S.No.25 of 2005
45. In the light of the findings given by this Court in respect of the above said issues, the plaintiff in T.O.S.No.22 of 2005 is not entitled to get Letters of Administration. The plaintiff in T.O.S.No.25 of 2005 is entitled to get Letters of Administration in respect of Ex.D1 Will dated 18.05.1994 and are ordered to be granted.
Issue No.4 in T.O.S.No.22 of 2005
46. As a result of the above said findings, the plaintiff in T.O.S.No.22 of 2005 is not entitled to get any relief.
47. In the result:
(i) T.O.S.No.22 of 2005 (O.P.No.240 of 2002) is dismissed.
(ii) T.O.S.No.25 of 2005 (O.P.NO.385 of 2002) is decreed as prayed for and Letters of Administration in respect of the Will Ex.D1 dated 18.05.1994 are granted.
(iii) This Court, taking into consideration the nature of relationship between the parties, is not inclined to award costs.
24.11.2015 Index : Yes / No Internet : Yes / No jvm List of Witnesses:
PW1 : K.Ramalingam PW2 : S.Amirthavalli PW3 : B.Anandan DW1 : Anjalli @ Radha DW2 : J.Jayanthi List of Exhibits:
Ex.P1 : Certified copy of preliminary decree in O.S.No.6151/1984 dated 05.09.1986 Ex.P2 : Certified copy of affidavit of R.Subramaniam in I.A.No.16065/1989 dated 12.07.1989 Ex.P3 : Certified copy of affidavit of petition for final decree in I.A.No.16065/1989 dated 12.07.1989 Ex.P4 : Certified copy of counter affidavit of K.Ramalingam in I.A.No.16065/1989 dated 25.11.1989 Ex.P5 : Certified copy of Full Satisfaction Memo in O.S.No.6151 of 1984 dated 29.01.1990 Ex.P6 : Certified copy of the plaint in O.S.No.6955 of 1993 dated 03.09.1993 Ex.P7 : Certified copy of the written statement in O.S.No.6955 of 1993 dated 02.11.1991 Ex.P8 : Certified copy of the judgment in O.S.No.6955 of 1993 dated 07.02.1996 Ex.P9 : Copy of the notice dated 23.10.2000 dated 14.09.2000 Ex.P10 : Copy of the reply dated 23.10.2000 Ex.P11 : Copy of the postal acknowledgment dated 25.10.2000 Ex.P12 : Copy of the Will of Dhanabakkiam Ammal dated 12.11.1998 Ex.D1 : Copy of the original will executed by Dhanabakkiam Ammal in favour of Anjalai @ Radha dated 18.05.1994 Ex.D2 : Death Certificate of Dhanabakkiam Ammal dated 20.09.2000 24.11.2015 M.SATHYANARAYANAN. J jvm Order in T.O.S.Nos.22 and 25 of 2005 24.11.2015