Madras High Court
A.K. Gopal And Ors. vs S. Vasanthan And Ors. on 24 April, 1992
Equivalent citations: (1993)1MLJ226
JUDGMENT Mishra, J.
1. The caveators/defendants in a testamentary proceeding have appealed questioning the grant of probate of the last Will and Testament of late K. Kulasekaran alias A.K. Sekhar who died on 6th August, 1976. Under the said Will Sekhar bequeathed certain properties to his three daughters appointing two sons-in-law as executors of the Will. The Will had been deposited in the Bank of Baroda by the testator himself.
2. In response to the citation issued, the appellants who are the sons of the testator A.K. Sekhar contested the case of the bequeath to the daughters only alleging that there was no occasion for the testator to execute the Will in their favour since he had already gifted jewels and cash to them. They brought on record the fact that in the year 1972, the testator had executed settlement deeds and gifted one house each to his four sons. He never thus, according to them intended to give any property to his daughters and alleged that the Will must have been obtained by the sons-in-law and the daughters exercising undue influence and compulsion upon the testator and that the Will could not have been written by their father with the free mind and without any pressure; They accordingly alleged that the Will appeared to be a fraudulent document got up by the daughters to defeat the rights of the sons. The testator who died four years after the execution of the Will was an Art Director in Film Studios. He had good wealth gained by the learning and profession of Art Director and in the property that he had acquired were five houses with appurtenant grounds in the City of Madras. In the year 1972 he executed a deed of settlement and gave four houses to his four sons, one house each. More than four years after the gifts deed in favour of the sons, he executed the impugned Will bequeathing the house property in a posh locality of the City of Madras to his three daughters.
3. The Will however which was brought to the Court from the Bank of Baroda, has been proved by one of the two attestors P.W.1, who also has been Assistant Director of Films at Madras. According to him, A.K. Sekhar executed a Will in his house at Mahadeva Iyer Street. Besides himself, one Thota Venkateswara Rao who was also an Assistant Art Director and working along with the testator, attested the Will. He deposed that the testator sent for him and when he went to his (testator's) house, he found the other witness Thota Venkateswara Rao there. The testator showed him the papers and explained to him that he was making, a Will and requested him and Thota Venkateswara Rao to attest the Will. After telling them about the Will, the testator signed the Will in their presence in each page of the document. Thereafter, P.W.1 and Thota Venkateswara Rao attested the Will by affixing their signature. Thus, according to this witness, both the attesting witnesses as well as the testator signed the Will after knowing about its contents in the presence of each other. On the question about the health condition of the testator P.W. 1 stated that he was hale and healthy at the time of the execution of the Will and that the entire Will as written by the testator himself in his own hand. He claimed familiarity with the handwriting of the testator. The trial Court has found on the basis of the evidence that the execution of the Will has been proved. Noticing the cross-examination and some contentions as to the testimony of this witness, learned trial Judge has stated:
Though there was lot of cross-examination of this witness, nothing worth mentioning was elicited from him. It is not challenged that P. W. 1 was the Assistant Director in films while the testator was the Art Director of prestigious studios at Madras like Vauhini Studios, A.V.M. Studios. The other attestor is assistant Art Director, who the testator know for more than a quarter century. Therefore, these are the most competent and natural witnesses to attest the bequest of the testator who was working in the Film Studio. It is not suggested that P.W.1 is a stranger or a chance witness to this Will. On the other hand, it was suggested in cross-examination that the testator came to the house of the witness at Mount Road and took his signature in the document. The evidence of P.W.1 is unshakable and he is a witness of truth and a man of status he has no axe to grind against the defendants. The result is the evidence of P.W.1 is sufficient proof of the execution of the Will according to law.
4. Some comments however have been made before us on the deposition of P.W.1 and it is contended that the court should reject the evidence of this witness as he is not consistent in his deposition that he arrived at the house of A.K. Sekhar because he had been called by him and that he was not a stranger or a chance witness to the Will. An attempt has also been made to suggest that many others including the caveators/appellants who lived in the house, never saw P.W. 1 or Thola Venkateswara Rao arriving at A.K. Sekhar's residence at Mahadeva Iyer Street. In any case when there was another attesting witness and His not the case that he was not available to depose as a witness, on the sole testimony of P. W. 1 the court should not have held that the Will is proved according to law. We have gone through the evidence of this witness and found that it has clearly come out that he had been visiting A.K. Sekhar's house frequently and that A.K. Sekhar had in fact sent a message to call him and since he received the message he arrived only to find that Sekhar intended to execute a Will and wanted him and Thota Venkateswara Rao to attest the Will. Why however Thota Venkateswara Rao has not been examined as a witness of the respondents, is also explained in the facts that he (Thota Venkateswara Rao) had been hobnobbing with the caveators/respondents and came to court with them on few occasions, however, he never appeared to depose, it seems he decided to abstain.
5. In Venkatachala v. B.N. Thimmajamma A.I.R. 1989 S.C. 443, the Supreme Court has stated what is the true legal position in the matter of proof of Wills. In the words of Supreme Court:
It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial Pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by Will and the three illustrations to this section indicate what is meant by the expression 'a person of sound mind' in the context. Section 63 requires that the testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This section also requires that the Will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the dispositions in the Will? Did he put his signature to the Will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of proof of Wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
We have chosen this authority of the Supreme Court for the reason that the above principle has invariably been quoted in almost all subsequent judgments of the Supreme Court as well as the High Courts and proof of execution of the Will is accepted only if the three cardinal questions are answered in the affirmative, namely, has the testator signed the Will? Did he understand the nature and effect of the dispositions in the Will? Did he put his signature to the Will knowing what it contained? and whether the special requirements of attestation prescribed by Section 63 of the Indian Succession Act had been complied with? In the instant case, it is clear on the evidence of P.W. 1 that the testator not only signed the Will in the presence of the other attesting witness, but the entire contents of the Will had been in his hand writing. As the author, of the contents of the Will he fully know, that he was writing. He also fully understood, according to the witness the nature and effect of the dispositions in the Will for he clearly told P.W. 1 as well as the other attesting witness that he intended to execute a Will in favour of his daughters.
6. A simple and legalistic approach, however, is not approved, by the Supreme Court and in the Judgment in the case of H. Venkatachala v. B.N. Thimmajamma A.I.R. 1989 S.C. 443, it is stated as follows:
However, there is one important feature which distinguishes Wills from other documents. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world, cannot say whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free Will. Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testators' mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder, can be taken to be discharged on proof of the essential facts just indicated.
We have no reason, while exercising the caution as indicated above in the judgment of the Supreme Court, to take any different view then the view expressed by the learned trial Judge that P.W. 1 who is one of the two attesting witnesses has given disinterested and satisfactory evidence which constitutes sufficient proof of the execution of the Will by A.K. Sekhar. The evidence of this witness is also to the effect that A.K. Sekhar was in a sound and disposing state of mind when he put his signature upon the Will which has been written by him and when the attesting witnesses put their signatures upon the Will.
7. It has almost became ritualistic for all caveators and defendants in a testemantary proceeding to allege (1) that the testator had no sound and disposing state of mind, (2) that he acted under undue influence of the beneficiaries under the Will or subjected to coercion fraud etc and invariably is every case, the execution of the Will is alleged to be surrounded by suspicious circumstances. This is always so even though there has not been one or more circumstances suggesting any suspicion as to the execution of the Will. The Supreme Court has also pointed out in the above judgment that there may be causes in which the execution of the Will may be surrounded by suspicious circumstances and added as follows:
The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the attestor may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the Will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the Will may otherwise indicate that the said dispositions may not be the result of the testator's free Will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last Will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free Will in executing the Will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
8. On the touch stone of the above, it is not possible in the instant case to say that the signature of the testator has been shaky doubtful and that the evidence of P.W. 1 has not removed any doubt or suspicion as to the genuineness of the signature of the testator. There is also nothing preceding or proceeding the execution of the Will to create any doubt as to the disposing state of mind of the testator. The Will after execution, was deposited in a Bank. The testator, however did not register the Will. But then, that alone is not a suspicious circumstance. There is nothing unnatural also for a father to divide his only remaining self acquisition amongst his daughters for the benefit of his daughters after his death. It is nothing unnatural for the father to demise the only self-acquired house property left in his hands after giving one house each to his four sons, for the benefit of his three daughters. Yet some allegations have been made by the caveators/appellants and some arguments have also been advanced before the learned single Judge in this regard. We shall be doing no better job than what has been done by the learned Single Judge in this behalf by ourselves entering into each such circumstance that according to the caveators/appellants are suspicious, or grave suspicion about the execution of the Will. It will be sufficient, in our opinion if we reiterate in the words of the trial Judge and indicate how on the basis of the evidence that has been adduced on behalf of the party nothing is show to the court to entertain any suspicion or doubt and in any case, the defendants/appellants have not been able to discharge the onus which as the Supreme Court has itself stated "if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proved by the caveators".
Learned trial Judge has stated:
Though vanquished the defendants could not reconcile themselves with the Will of the lather bequeathing one house to his three daughters and picked holes in the plaintiffs' case by contending that there are certain suspicious circumstances in the execution of the Will. According to them the suspicious circumstances are as follows:
Firstly it was contended on behalf of the defendants that the father had studied only upto the 9th standard and therefore he could not have written the terms of the Will in English Language as found in Ex.P-1. The evidence is that Ex.P-1 was written by the testator in his own hand writing throughout and this handwriting has not been challenged by the defendants. Their grievance is that the father who was educated only upto 9th standard would not have written the Will in such chaste English and that it might have been copied. This argument is bankrupt if we probe into the evidence. The defendants themselves have filed a number of documents like account books, pass books, letters viz., Exs.D-39, D-28, D-27, D-25, D-24, D-23, D-22, D-11, D-12 and D-13 which clearly establishes that A.K. Shekhar's knowledge of English was sound at that has was maintaining accounts in English.
He was having correspondence with his daughters only in English and it is not denied that he wrote the contents of the Will in his own hand. He was a very knowing man being a leading Film Art Director in the City of Madras over 35 years of backing. Just because his school education was only upto 9th standard it is futile to contend that he had no sufficient knowledge in English. The documents stated supra clearly show that he has acquired more than sufficient knowledge of English and even the daughters write letters to him only in English. The second contention of the defendants was that the father used to sign only as A.K. Sekhar and that he never signed in two places one as A.K. Sekhar and the other as A. Kulasekaran. The argument also is devoid of substance A.K. Sekhar is only an abbreviation of A. Kulasekaran. While executing valuable document, viz., Will the testator was careful enough not only to sign the name of A.K. Sekar, but also signed as A. Kulasekaran. If fact he has signed in two places in Ex.P-2 namely, sealed cover under which he deposited the Will with the Bank of Baroda on 6.8.1976. Even on the top of the sealed cover, he has clearly mentioned A. Kulasekaran alias A.K. Sekar signed in two places. Therefore, nothing turns upon the facts that the testator signed in his own hand his abbreviated name and the full name. The defendants then contended half-heartedly that the signature in the disputed document is different from the admitted signature in Exs. D-33 and D-34 and that the former does not stand for comparison. This argument can be characterised as desperate as it is very clear even to the naked eye that the signature in Ex.P-1 and the admitted signature in Exs.D-33 and D-34 are exactly similar and identical. There is no iota of difference between the two. As already pointed out, if the defendants are serious about this contention, they could have very well sent the disputed signature for the handwriting expert for comparison and opinion. They dare not do it. And as already pointed out their main attack is that the Will was executed under pressure from the daughters. The result of my discussion is that I do not see any suspicious circumstances whatsoever in Ex.P-1 executed by the testator. On the other hand it is the natural Will of any prudent man. There are no intrinsic improbabilites of the execution of the Will. The father (testator) had already settled four houses on each of the four sons and the remaining house was given to his 3 daughters jointly. In other words he gave one house each to four of his sons and he gave only one house jointly to all the three daughters. It is not as if he gave the house property to the daughters free from encumbrances. He directed the daughters and son-in-law who are beneficiaries under the Will to pay all incidental taxes on the property to pay all the maintenance charges of the property, to pay all taxes due on his behalf, to pay estate duty for the abovesaid property and to meet all his death and funeral expenses and medical expenses incurred for him. The Will recites "after meeting the above and other incidental expenses the remaining amount shall be shared equally amongst my three daughters mentioned here below". All the three daughters had been already married and they are living with their husbands in different places. One son-in-law was in L.I.C., the other a Co-operative Sub Registrar in Andhra Pradesh and the third son-in-law a Chartered Accountant at Coimbatore. Therefore, the Will is a natural Will of the father who in his last days thought he should provide the daughters also with some properties. It is important to note that the admitted evidence is that the father's relationship with the sons was very cordial at the time of execution of the Will and he was living with his last son at West Mambalam. What is more under this Will he gave all his personal furniture and other art materials, library etc., to his last son Srinivasalu. That the Testator was a strong Willed and an independent man is evident from the fact that even though he lived with his last son in the last few years of his life, he was paying Rs. 350 per month for his stay and food to his own son-vide admission of D.W.I in cross-examination. It was while he was residing in his last son's house he executed the Will in that house and that too on an auspicious Varalakshmi Viradhamday, perhaps with the knowledge of his sons. He father executed the Will openly and he had, nothing to hide from his sons and he was careful enough to deposit the same on the very same day of execution in the back with directions to open the same only after his death. Now with reference to Ex.P-2 the sons are not able to reconcile with the Will of the father bequeathing some property to the daughters and they are uncharitably questioning the Will of their father after his death.
9. Learned Counsel for the appellants has reituated each of the circumstance and taken us through the evidence of witnesses and several documents produced by one of the other party to emphasis (i) the father had no natural love for the daughters so as to exclude his sons from inheritance in the most valuable property that he possessed: (ii) that sons-in-law; of the testator were or at their instigation, his daughters were every time coercing him to part with either cash or kind and there is every reason for him to say that it was under their coercion that the testator executed the Will and (iii) the testator always signed as M.K. Sekhar excepting the Will where he signed as Kulasekaran alias A.K. Sekhar. Why he wrote his full name when in any other document he only used only part of his name and that it is suspicious why the execution of the Will was kept a secret and not disclosed until the demise of the testator to the caveators/appellants particularly when there are documents on the record to show that the propounders knew about the above execution of the Will before the death of the testator.
10. It is indeed the rule and the Supreme Court has also in the abovesaid judgment in Venkatachala v. B.N. Thimmajamma A.I.R. 1989 S.C. 443, said that when the propounders themselves take a prominent part in the execution of the Will which confers on them substantial benefits, this itself is a suspicious circumstances attending the execution of the Will. But on the facts that had been presented in the instant case, it will be wholly unnatural to be guided by such remote suggestion as fallen from the caveators/appellants that it appears that the sons-in-law exercised undue influence upon the testator and the applicant or they coerced him to execute the Will. The evidence in this regard is generally too remote to be relevant both in point of time as well as in exercise of any influence. Sons were too Willing to appropriate the houses settled in their favour by their father; but not ready to reconcile with the division of one house between the three daughters. If the Will is viewed independently, the entire house has been given to the three daughters and sons had been left out. But if the narration of the facts is kept in mind, it is fully evident that the father gave almost equal care to the interest of the sons by giving to each one of them a house and no less care to the daughters by providing them equal share in the 5th house that he had acquired as gain of his own monies. There are absolutely no circumstances beyond as noticed by the learned single judge and by us which create even a sembalance of doubt as to the validity as the Will.
11. Before we part with this judgment, we may indicate that we had been careful in keeping in mind the dividing line between conjecture and inference - Lord Macmillan said in his dissenting judgment in Jones v. Great Westmen (1930)47 B.L.R. 39;
The dividing line between conjecture and inference is ofcourse a very difficult one to draw. A conjecture was be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference, in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof.
The above passage has been quited with approval by the Supreme Court in the landmark judgment in Shyam Sunder v. State of Rajasthan . The entire evidence that is brought on record on behalf of the caveators/appellants is nothing but bundle of informations showing certain correspondence between the daughter and the father or between brothers and sisters or between brothers-in-law themselves. In these there are one of the other sentence or word that appears to suggest either a demand of a daughter to receive some money from the father or a demand of the sister to receive some money from the brother or such payments made either by the father or the brother to the daughter or the sister, or that there has been some complaints against the attitude of one of the other about the properties covered by the Will. Unless one reports to conjecturs which Will not be of value, it is not possible to draw any reasonable deduction as to the validity of the execution of the Will by the testator.
12. For the reasons aforementioned, we find no merit in the above appeal. The appeal is accordingly dismissed. However, there will be no order as to costs.