Karnataka High Court
Immanual D'Cunha @ Manual D'Cunha vs Mrs Jethrin D'Cunha on 7 August, 2012
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 7TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR. JUSTICE MOHAN SHANTANAGOUDAR
REGULAR FIRST APPEAL NO.201/2003
BETWEEN:
Immanual D'Cunha @
Manual D'Cunha
S/o Gregory D' Cunha
Age Major
R/o B-10, Shivaganga-1
Vacola Pipe Line
Santhacruz (E)
Mumbai-55, now come down to
Mangalore, R/o Tari Kambla
Costa Villa, Bajpe Post
Mangalore Taluk. ..Appellant
(By Sri Pundikai IshwarA Bhat, Adv.,)
AND :
1. Jethrin D'Cunha
Age Major, S/o Leo D'Cunha
Hosabettu House
Near Matta, Surathkal Post
Mangalore Taluk, D.K.
2. Alphonse D'Cunha
Age Major
2
Locary Chal, Room No.9
Opp. Group No.2
Tagur Nagar, Vicroli (E), Mumbai.
3. Bona Sequeira
Age Major
4. Mrs. Felsy D'Souza
Age Major
5. Franklin Sequira
Age Major
6. Charles Sequira
Age Major
7. Micheal Sequira
Age Major
8. Bernad Sequira
Age Major
9. Dolphin Sequira
Age Major
10. Miss. Maggi Sequira
Age Major
11. Jokim Sequira
Age Major
12. Ida Sequira
Age Major
13. Edmund Sequira
Age Major
3
Respondent 3 is the husband &
4 to 13 are the children of
late Florina D'Cunha
All are residents of Maraka
Palke House, Kinnigoli
Mangalore Taluk, Pin-574150.
14. Tony P. D'Cunha
S/o late Stany D'Cunha
Major, R/o Bajle House
Tarikambala, Bajpe Post
Mangalore Taluk.
15. Mrs. Jacintha
Age Major
16. Albert Rebello
Age Major
17. Baptist @ Bapti Rebello
Age Major
18. Mrs. Rosy Rebello
Age Major
19. Benedicta Rebello
Age Major
Respondents 15 to 19 are
Children of late Rupina D'Cunha
All are R/o Pinto Compound
Ballanna House, Kateel
Mangalore Taluk. ..Respondents
(By Sri Vijayakrishna Bhat M, Adv., for R1, R2, R6 and R15)
4
This RFA is filed under Section 96 of CPC against the
judgment and decree dated 31.08.2002 passed in
O.S.No.10/1998 on the file of the III Addl. District Judge,
D.K., Mangalore dismissing the suit for grant of letter of
administration.
This R.F.A. is coming on for hearing this day, the
Court, delivered the following :
JUDGMENT
This is the plaintiff's appeal against the Judgment and Decree dated 31st August 2002 passed in O.S. No.10/1998 on the file of the III Addl. District Judge, D.K., Mangalore dismissing the suit.
2. Suit was filed praying for grant of Letter of Administration in respect of the alleged last Will and Testament dated 21.9.1981 of the plaintiff's father - late George D'Cunha to have effect over all the properties of the testator throughout the State of Karnataka.
3. Plaintiff is the eldest son of the testator viz., Gregory D'Cunha. Defendant No.1 is the wife of pre- 5 deceased son of the testator. Defendant No.2 is another son of the testator. Defendant Nos.3(a) to (k) are the children of one of the daughters of the testator viz., Florine D' Cunha. Defendant Nos.5 to 9 are the legal representatives of another deceased daughter Roupinha D'Cunha.
It is the case of the plaintiff that Gregory D'Cunha during his life time executed a Will dated 21.9.1981 while in sound disposing state of mind, bequeathing all his properties in favour of the plaintiff and thereby the plaintiff is the legatee of the properties mentioned in the said Will and hence he is entitled for grant of Letter of Administration. Gregory D'Cunha expired on 1.2.1984.
The defendants on the other hand denied the genuineness of the said alleged Will of Gregory D' Cunha and they have also disputed the sound and disposing state of mind of Gregory D'Cunha during the relevant period of 6 execution of the alleged Will; According to the defendants, the deceased testator was suffering from illness during December-1983 and the plaintiff forcibly took the deceased Gregory D'Cunha to Bombay against his wishes and the wishes of the defendants. Within 2 or 3 months thereafter, Gregory D'Cunha expired at Bombay i.e. on 1.2.1984. 1st defendant (mother of the plaintiff) however contended that the alleged Will is a fabricated document and that she was thrown out of the house by the plaintiff. It is also stated by the defendants that the deceased Gregory D'Cunha had got great love and affection towards his children and grand children equally. The sum and substance of the case of the defendants is that the Will is bogus and fabricated; even otherwise, the Will is not the outcome of the free and independent will and mind of late testator. It is further pleaded by defendants that the plaintiff had been permanently residing in Bombay since childhood and has lost all connections with the family and it was another son 7 Leo D'Cunha, who was assisting the deceased in agricultural operations and was living with him. Subsequently, after the death of Leo D'Cunha, his widow was forcibly ousted from the residential house by the plaintiff after coming over from Bombay. The Will is created by the plaintiff with dishonest intention of knocking of all the properties. Based on the pleadings, the following issues were framed by the Court below:
1. Does the plaintiff prove that the deceased Gregory D'Cunha the father of the plaintiff made his last Will and Testament dated 21.9.1981 while in sound disposing state of mind and in the presence of the attestors of the said Will ?
2. Was the deceased suffering from illness during the year 1983 and the signature of the deceased was obtained by the plaintiff to the disputed document against the wishes of the deceased forcibly as alleged in para 4 of the written statement ?8
3. Is the Will in question a fabricated document as alleged by the defendants ?
4. Is the plaintiff entitled for grant of Letters of Administration in respect of the properties covered under the said Will ?
4. In order to prove his case, the plaintiff got examined 4 witnesses and got marked 16 documents. On behalf of the defendants, 6 witnesses were examined and 8 documents were got marked. The trial Court on appreciation of the material on record and on hearing both the parties, dismissed the suit holding that the suit document i.e. the alleged testament surrounded with number of suspicious circumstances.
5. Sri Pundikai Ishwara Bhat, learned advocate appearing on behalf of the appellant taking the Court through the impugned Judgment and other material on record has contended that the Judgment and Decree of dismissal passed by the trial Court is improper and incorrect 9 under the facts and circumstances of the case inasmuch as the appreciation of evidence made by the trial Court is not just and proper.
Sri Vijay Krishna Bhat appearing on behalf of the respondents argued in support of the judgment of the Court below.
6. Having regard to the rival contentions of the parties, the only point that arises for consideration in this appeal is :
"Whether the trial court is justified in dismissing the suit holding that the alleged so called Will Ex.P4 is surrounded by suspicious circumstances ?"
7. It is not in dispute that the plaintiff had left the native village and had started living in Bombay since childhood. So also another son by name Alphonse D'Cunha lived and lives in Bombay all through. Other son viz., Leo D'Cunha was also staying separately alongwith his wife and 10 children. The daughters of late testator were married and are living in their respective matrimonial houses. Late Gregory D'Cunha, the testator and his wife were living together at Bajpe in Mangalore taluk. From the above, it is clear that Gregory D'Cunha and his wife were living separately from all his children. Further, plaintiff and defendant No.2 were living in Bombay.
8. In order to substantiate his case, the plaintiff examined himself as PW-1 and another person who is stated to be present at the time of execution of the Will Ex.P4 was also examined. Two more witnesses were also examined on behalf of the plaintiff. PW-3 Walter D'Cunha is the son of the elder brother of the deceased testator. DW-4 is the son of one of the younger brothers of the deceased. Their evidence may be important in this matter inasmuch as they are the persons who are closely linked with the family of Gregory D'Cunha from the point of view of blood relationship.
11
9. Ex.D1 is the birth certificate of Gregory D'Cunha. His date of birth is 9.5.1892. He died on 1.2.1982 Thus, the testator lived for about 90 years. The alleged Will is executed on 21.9.1981 i.e. about 4 ½ months prior to his death.
10. Though it is deposed by defendants that testator was suffering from paralysis/stroke, the said fact is not pleaded in the written statement. However, the Will Ex.P4 itself reveals that the deceased was not having good health. It is stated in Ex.P4 that since the testator is not keeping good health, the Will is executed. One day prior to Ex.P4, the Administration Agreement as per Ex.P6 was executed by Gregory D'Cunha. By executing the said agreement, he has given permission to Thomas D'Cunha to cultivate the agricultural land on his behalf. In Ex.P6, it is stated that the executant of the said agreement viz., Gregory D'Cunha is old aged and unwell and he is going to Bombay for the 12 purpose of taking treatment. These facts clearly go to show that the deceased was unwell even at the time of execution of the Will Ex.P4 and Ex.P6 and they were got written just before the executant left Bajpe to Bombay. However, PWs.1 and 4 have deposed that at the relevant point of time, the deceased Gregory D'Cunha was mentally as well as physically sound. PW-2 Marcel D'souza who is the son of younger brother of the deceased testator also has deposed before the Court that the deceased was suffering from right side body paralysis. If the statements made in Ex.P4 -Will and Ex.P6 - Administration Agreement are believed, it is clear that the health condition of the deceased was not so good and he was going to take treatment at Bombay and that too by taking the help of plaintiff in whose favour all the properties are bequeathed. This clearly implies that the deceased was entirely depending on the plaintiff and that there is every likelihood of the testator being won over by the plaintiff. The exercise of undue influence by the 13 plaintiff on the deceased during the relevant time cannot be ruled out. The very fact that the testator allegedly wanted to take treatment at Bombay reveals that the treatment taken by the testator at Mangalore has not yielded any result. Therefore the trial Court is justified in concluding that the gravity of illness is such that it could be treated only at Bombay and secondly on account of his going to Bombay, the testator was fully dependant on his son i.e. the plaintiff. The Court can take judicial notice of the fact that the aged person who is interested in recovery of his health, will be definitely dependant upon his son, who is assisting the deceased for taking treatment.
11. Undisputedly, the deceased Gregory D'Cunha had four sons and two married daughters. At the time of death of the deceased testator, his wife was living. Thus it is clear that the testator left behind not only four sons and two married daughters, but also his wife. Undisputedly, as aforementioned, the plaintiff - PW 1 is residing in Bombay 14 since 1949 after securing job there. Another son by name Alphonse D'Cunha /defendant No.2 also started residing at Bombay after his marriage. Thus it is clear that all the sons and daughters were not living with their parents. If it is so, the testator will have the same love and affection or hatredness either in favour or against his children. There is no reason as to why other three sons and two daughters and the grand-sons were ignored while executing the Will. The very fact that the other sons and daughters are not assigned any share under the Will, that too without any valid reason is one of the reasons to discard the genuineness of the Will. There is absolutely no reason for the testator to ignore other sons and daughters while executing the Will.
12. The very fact that testator executed the Administration Agreement in favour of the third party viz., Thomas D'Cunha goes to show that testator wanted to take shelter at Bombay in one of his son's house. The three 15 sons are ordinary residents of Bombay. Mr. Gregory D'Cunha and his wife (Defendant-1) used to visit the houses of all their sons and daughters at their convenience. There is nothing to show that the old couple were hating any of their children. Mere separate living cannot be treated as separation from children mentally. The love between the parents and the children is not lost at any point of time. The evidence on record also reveals that another son of the deceased viz., Stany used to come and meet his father at Bombay, which goes to show that the sons and daughters were not hating their parents so also the parents were not hating the sons, daughters and grand-children. Under these circumstances, this Court does not find any reason for the testator to ignore other sons and daughters. There should be extremely good relationship with the plaintiff or overwhelming love in favour of plaintiff to exclude other children from inheritance of the property. Except the self 16 serving statement of the plaintiff, this Court does not find any convincing evidence at all on that aspect of the matter.
13. Shockingly, no provision is made for the wife of late testator by the testator. Admittedly, the testator's wife viz., mother of the parties herein was living with the testator all through. She must be aged about 84-85 years during that relevant point of time. Therefore she needed atleast the shelter and financial assistance for her survival till her death. It is also on record that testator's wife came back from Bombay after the death of the testator and living at Bajpe till her death. Her Written Statement reveals that she was evicted from the house by the plaintiff after demise of the testator. Absolutely no reasons muchless valid reasons are forthcoming to exclude his loving wife by the testator to disinherit the property.
14. Though PW-1 has deposed that he used to send some amount to his father for his livelihood frequently, 17 nothing is placed on record to believe the said version. No documents are produced in that regard. It is further deposed by PW-1 that he discharged the loan incurred by the testator for meeting the marriage expenses of sisters of the plaintiff, but the contents of the power of attorney executed by testator in favour of the plaintiff under Ex.P8 shows that the said power of attorney is executed for the purpose of selling agricultural land bearing Sy.No.23/6B for the purpose of discharging the loan raised by the testator for the marriage expenses of the children.
15. The evidence of PW-1 reveals that testator used to visit the houses of all the children including the daughters. One of the daughters was residing at Kateel. The attestor and his wife used to visit the said house also. In this view of the matter, the Trial Court is justified in observing that the attestor had got equal love and affection for his other children also. Moreover, as aforementioned, no provision 18 was made even for maintenance of the wife of attestor in the will. The will does not even reveal that PW-1 should take care of the old aged wife of the attestor.
16. The contention of the plaintiff is that the attestor had got great love and affection for him in view of the fact that the attestor was being paid certain sums of money by PW-1 periodically, but, there is no corroborative evidence at all in support of the said case. The money orders, bank accounts etc., are not produced by the plaintiff before the Court to prove the said aspect of the matter. On the other hand, the disputed will itself clearly reveals that the attestor had made arrangements for discharging the loans also by selling one of the properties.
17. There is no material to show that the plaintiff was also present when all the three documents i.e., Ex-P4, Ex- P6 and Ex-P7 were executed. Ex-P4- alleged will is executed on 21.9.1981. The alleged administration 19 agreement executed in favour of Lawrence D'Costa is dated 19.9.1981 and the Special Power of Attorney executed in favour of Lawrence D'Costa authorising him to appear before the Land Tribunal is dated 19.9.1981. Thus, it is clear that all the three documents have come into existence within a span of about 4 days i.e., from 19.9.1981 to 22.9.1981. Though in the examination-in-chief PW-1 has deposed that he was at Bombay in September 1981, the same is unbelievable inasmuch as the said power of attorney shows that the plaintiff was authorised to execute the sale deed in respect of Sy.No.23/6B.
18. The evidence of PW-4 who is stated to be present at the time of execution of will clearly reveals that all the children of the attestor had not studied beyond S.S.L.C. However, PW-1 alone has completed his higher studies and is working in a well-known company at Bombay. It has also come on record in the evidence of PW-4 that the deceased was also not educated. However, he used to speak Kannada 20 and Tulu languages. He did not know English and that his English signatures are not forthcoming. PW-4 also states that he has not seen any other signature of the deceased attestor except the signature found in Ex-P4.
19. If second page of Ex-P4 is carefully perused, definitely suspicion arises as to whether the attestor has signed the will after writing the will or as to whether the signature or thumb impression of the attestor is taken prior to writing the contents of the will. In this context, after perusal of the document in question, the Trial Court has rightly observed that it seems the signature and the thumb impression of the attestor is taken on some blank paper and thereafter the contents are filled subsequently. It is curious to note that not only the thumb impression of the attestor is found in Ex-P4, but also, the signature. There is absolutely no reason as to why the signature as well as thumb impression are taken at Ex-P4. It appears that the 21 propounder of the will wanted to be more careful while preparing Ex-P4.
20. PW-3 is examined to prove the signature of PW-2- attestor at Ex-P4(the will in question). PW-3 is none other the son of PW-2. PW-4 is also examined for the purpose of identifying the signatures of Executant to the will as well as signature of the attestor. Both of these witnesses i.e., PWs- 3 and 4 identify the signature of attestor over the will. In addition thereto, PW-4 has identified the signature of executant also found in the will. However, PW-4 is not the attestor of the will.
Even according to PW-3, his father PW-2 was a school teacher. Thus, it is but natural for PW-2 to have left behind other admitted signatures. The plaintiff has not taken care to produce the admitted signatures of PW-2 as well as of the deceased attestor in order to compare the disputed signatures with the admitted signatures. If the admitted 22 signatures of the executant and the attestor were to be produced before the Court, it would have been easy for the Court to compare the disputed and admitted signatures on record as contemplated under Section 73 of the Indian Evidence Act. In the absence of any material document to show that the signature at Ex-P4 is that of the executant and attestor(PW-2), the Court below is justified in holding that the will is not proved in accordance with law. Moreover, the will has not seen the light of the day for 12 long years. However, PW-1 chose to get the entries changed in his name after six years on the death of his father i.e., attestor. The Trial Court on perusal of the records has concluded that such mutation entries were made without notice to other legal representatives of the attestor. Probate was not obtained atleast till 2002. Till such time, obtaining the Probate in respect of a will executed by a Christian was compulsory. Without obtaining the Probate, the so called Will could not have been used. 23 Thus, it is clear that will has not seen the light of the day till such time as per law.
21. Be that as it may, it is by now well settled that unexplained delay in propounding the will (12 years in this matter) is one of the suspicious circumstances.
22. In paragraph 3 of Ex-P7, it is referred that Lawrence D'Costa is one of the attesting witnesses to Ex- P4, whereas in Ex-P4, this Court does not find that Lawrence D'Costa was one of the attestor. However, the records reveal that both the alleged attestors to the said will have expired. Lawrence D'Costa who is closely associated with the deceased is not examined though said Lowrence D'Costa is still alive.
23. Having regard to the totality of the facts and circumstances of the case, this Court is of the considered opinion that the Trial Court is justified in holding that the will is surrounded by suspicious circumstances. The 24 signatures of the Executor as well as the Attestors are not proved to the satisfaction of the Court. Even on reappreciating the material, this Court does not find any ground to disagree with the reasons assigned and conclusions arrived at by the Court below.
Hence, no interference is called for. Accordingly, appeal fails and the same stands dismissed.
Sd/-
JUDGE Pages 1 to 16. Gss Pages 17 to 23 .. mn/ck/nk