Madras High Court
A.J.Nanda Gopal vs A.J.Manavalan on 20 April, 2012
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.04.2012 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR T.O.S.No.25 of 2009 A.J.Nanda Gopal .. Plaintiff Vs. 1.A.J.Manavalan 2.M.L.Dhanalakshmi .. Defendants Petition filed under Sections 222 and 276 of the Indian Succession Act XXXIX of 1925 for the grant of probate. For Plaintiff : M/s.S.R.Sundaram For Defendants : M/s.P.B.Ramanujam ----- JUDGMENT
The petition is filed by the plaintiff A.J.Nanda Gopal under Sections 222 and 276 of the Indian succession Act, 1965 for the grant of probate of the last Will and testament of his mother A.J.Kuppammal (deceased) as O.P.No.327 of 2008 has been converted into a Testamentary Original Suit since the grant of probate sought for was sought to be opposed by A.J.Manavalan and M.L.Dhanalakshmi, the defendants herein by filing caveats and affidavits setting out the grounds on which they oppose the grant of probate.
2. After the conversion of the Original petition into a Testamentary Original suit and service of citation, the first defendant filed a written statement and the same was adopted by the second defendant.
3. The averments made by the plaintiff in support of his claim for the grant of probate, in brief, are as follows:
Plaintiff's mother A.J.Kuppammal and plaintiff's wife A.N.Vyjayanthi jointly purchased a house bearing Door No.48, Shanmugarayan Street, George Town, Chennai 600 001 under a sale deed dated 22.03.1973, registered as Document No.240 of 1973 on the file of SRO, Sowcarpet, Chennai and as such, the said Kuppammal and the wife of the plaintiff, namely A.N.Vyjayanthi were the co-owners of the said property, each having half share in the same. During her life time, A.J.Kuppammal, the mother of the plaintiff, while maintaining good health and sound disposing state of mind, executed a Will on 29.12.1977 as her last Will and testament and got it registered as Document No.4 of1978 on the file of SRO, Sowcarpet, Chennai. In the said Will, the testator A.J.Kuppammal directed that her half share in the above said property, after her life time, would be enjoyed by her husband A.V.Jayachandran during his life time. The testator has directed further that after his death or in case he predecease the testator A.J.Kuppammal, her half share in the said property would devolve upon her two grandsons, namely A.N.Mohana Krishnan and A.N.Thyagarajan as legatees. She has also appointed the plaintiff as the executor of the Will with a direction to take possession of the property after her demise and after the demise of her husband and manage the property till the legatees attain majority and on their attaining majority, to handover the same to the above said ultimate legatees. A.V.Jayachandran, the husband of the testatrix A.J.Kuppammal, predeceased her as he died on 13.05.1996 and the testatrix A.J.Kuppammal died subsequently on 31.01.2001. Till her death she did not revoke the Will or execute any other Will and the Will dated 29.12.1977 happened to be her last Will and testament and the Will came into effect on the death of Kuppammal on 31.01.2001. Though A.J.Kuppammal died on 31.01.2001, since the plaintiff had no knowledge regarding the necessity to get the Will probated and only when he got legal advise that for claiming the right under the Will, the Will should be probated, he approached the Court on 12.08.2007 praying for an order of probate in respect of the Will dated 29.12.1977 of A.J.Kuppammal to have limited effect in the state of Tamil Nadu.
4. The averments made by the defendants in the Written statement filed by the first defendant and adopted by the second defendant are as follows:-
The Will propounded by the plaintiff regarding which probate is sought for is not a true and genuine document. The wife of the plaintiff did not contribute anything for the purchase of the property referred to in the plaint. The deceased Kuppammal, who is the mother of the defendants also, was very much attached to all her children and there was no occasion for her to disinherit any one of her legal heirs by executing any document, much less the alleged Will. There is no reason, much less special reason, for favouring her grandsons through one of the sons alone, namely the plaintiff. The said fact of preference of grandsons through one of the sons alone and disinheritence of other legal heirs give rise to a reasonable suspicion that the Will itself could have been brought into existence to project a theory that the plaintiff's wife also contributed for the purchase of the property. Deceased Kuppammal did not know to read and write in English. Since the Will is in English, it should have been brought into existence by the plaintiff playing a fraud on her in order to knock off the property to his wife and children and exclude the other legal heirs of deceased Kuppammal. The second attesting witness, who is none other than the son-in-law of the deceased Kuppammal, could not have attested the Will and his signature should have been forged. The Will could not have been executed by deceased Kuppammal with full knowledge as to what she was doing and after knowing the contents of the Will and on the other hand, the same would have been obtained by playing a fraud on her. For the above said reasons, the prayer for probate should be declined and the suit should be dismissed with costs.
5. Based on the above said pleadings, the following issues were framed:
1.Whether, the Will dated 29.12.1977 was executed by the testatrix Tmt.A.J.Kuppammal in the presence of two attesting witnesses, in a sound and disposing state of mind and is it a true and valid document?
2.If so, whether the Will dated 29.12.1977 is the last Will and testament of the testatrix Tmt.A.J.Kuppammal?
3.To what relief the parties are entitled?
6. Six witnesses were examined as Pws 1 to 6 and 10 documents were marked as Exs.P1 to P10 on the side of the plaintiff in order to prove the plaint averments. The first defendant A.J.Manavalan figured as the sole witness (DW1) on the side of the defendants. No document was produced by the defendants on their side.
Issues 1 to 3:-
7. The plaintiff, claiming to be the executor appointed by his mother deceased Kuppammal under her last Will and testament dated 29.12.1977, has approached this Court for the grant of probate of the said, Will arraying not only the defendants herein but also the other persons who are next of kin and the legatees under the suit Will as party respondents. The Defendants 1 and 2 herein had been arrayed as Respondents 2 and 3 in the original petition. B.V.Devi, the daughter of deceased Kuppammal had been arrayed as the first respondent, whereas the legatees A.N.Mohana Krishnan and A.N.Thyagarajan were shown as Respondents 4 and 5. In all, totally five persons were shown as respondents in the original petition. Out of the five persons, B.V.Devi who figured as the first respondent did not oppose the petition. On the other hand, she had given a consent affidavit expressing her consent for the grant of probate in favour of the plaintiff. Consent affidavits of PW6 - Devi has been marked as Ex.P7. A.N.Mohana Krishnan and A.N.Thyagarajan also had given consent affidavits since they are the ultimate legatees under the Will which is sought to be probated, as it is quite natural because it were their rights which were sought to be established by seeking probate by their father. Consent affidavits of legatees have been marked as Exs.P8 and P9. As such, the defendants 1 and 2 alone, who were shown as Respondents 2 and 3, in the original petition filed caveat opposing the grant of probate and on conversion, chose to contest the suit by filing a written statement disputing the genuineness of the Will propounded by the plaintiff and also contending that the Will could have been obtained by playing a fraud on the testatrix A.J.Kuppammal.
8. The original Will has been produced and marked as Ex.P1. Section 68 of the Evidence Act refers to the mode of proof of a document required by law to be attested. A Will is no doubt a document required by law to be attested. If a document is required by law to be attested, it shall be the duty of the person relying on the document to prove not only the execution by the author of the document, but also the attestation. Section 68 of the Evidence Act provides that if a document is required by law to be attested, the same shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution if there be an attesting witness alive, subject to the process of Court and capable of giving evidence. The said requirement is diluted by the proviso so far as the documents other than a Will are concerned. It provides that it shall not be necessary to call an attesting witness in proof of execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, unless its execution by the person by whom it purports to have been executed is specifically denied. Therefore, registration of a document, other than a Will, shall dispense with the examination of an attesting witness provided the execution is not specifically denied.
9. So far as a Will is concerned, the requirement of examination of at least one of the attestors is a must for using the Will as evidence. The said requirement is subject to a condition that at least one of the attesting witnesses should be alive and he is subject to the process of Court and is capable of giving evidence. There may be cases in which both the witnesses may not be alive when the case is taken up for trial or they may not be subjected to the process of the Court or capable of giving evidence. In such cases, Section 69 of the Evidence Act shall apply. Section 69 of the Evidence Act says, if no such attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. Section 70 deals with the proof of a document required to be attested by the admission of the person of its execution by himself, if such person is a party to such an attested document. Section 70 shall not get attracted because proof of a Will shall arise only after the death of the testator. Therefore, the requirement of examining at least one of the attestors does not stand dispensed with on the ground of admission of a party in case of a Will. Only Section 69 which deals with the situation when no attesting witness who is subject to the process of the Court and capable of giving evidence can be found. In such circumstances, the Will can be proved by proving that the attestation of one attesting witness at least is in his handwriting and in addition that the signature of the person executing the document is also in the handwriting of that executant.
10. The case on hand clearly attracts Section 69 of the Evidence Act. Clear and categorical averments have been made in the plaintiff's pleading that both the attestors are not alive. The said averment has not been denied or disputed by the defendants in their written statement. In addition, the plaintiff who figured as PW1 has stated in clear terms that Ex.P1 Will has been attested by P.S.Lakshminarayanan and B.D.Venkatarathnam. He has also stated in his evidence that those attesting witnesses were also the identifying witnesses who identified the testator before the Sub-Registrar for the registration of Ex.P1 Will. PW1 has also deposed unambiguously that the signature of A.J.Kuppammal found in Ex.P1 Will is in the handwriting of his mother A.J.Kuppammal. In addition, A.N.Vyjayanthi, wife of the plaintiff, while deposing as PW2, has testified to the effect that Ex.P1 Will was executed by her mother-in-law A.J.Kuppammal and the signature of A.J.Kuppammal found in Ex.P1 is in the handwriting of her mother-in-law A.J.Kuppammal (the testator). No doubt, to a query as to whether she accompanied her to the Sub-Registrar's office at the time of registration of the document, PW2 answered that she did not remember. She has clearly identified signature of A.J.Kuppammal found in the Will and in the registration endorsement.
11. PW3 T.S.Varadharajulu, who claims to be conversant with the signature of P.S.Lakshminarayan, the first attesting witness, has identified the signature of the first identifying witness found in Ex.P1 and also on the reverse page of sheet No.1 of Ex.P1 containing the registration endorsement, to be that of P.S.Lakshminarayan. It is obvious from his testimony that the said P.S.Lakshminarayan was the husband of PW3's sister and therefore PW3's evidence that he is conversant with the signature of the first attesting witness P.S.Lakshminarayanan cannot be discarded for the simple reason that he pleaded absence of personal knowledge as to whether the said Lakshminarayanan had gone to the Sub-Registrar's office for the execution and attestation of the suit Will. Suffice to point out that he was examined as a person conversant with the signature of P.S.Lakshminarayan, one of the attestors of the suit Will, who cannot be called as a witness since he is no more. PW3's assertion that his sister's husband P.S.Lakshminarayanan died 7 years prior to the date on which he was examined as a witness has not been disputed by putting any suggestion in cross-examination.
12. PW4-G.Radhakrishnan's evidence shall be of little use since he has simply stated that the deceased A.J.Kuppammal was known to him and the plaintiff told him that his mother had executed a Will. PW5-A.N.Mohanakrishnan has been examined to prove a partition deed marked as Ex.P6. However, in his evidence he has also stated that B.D.Venkatarathnam, one of the attesting witnesses of the partition deed, was also the second attesting witness of Ex.P1 Will. He has also identified the signature of the second attesting witness found in Ex.P1 Will and on the reverse page of Ex.P1 to be that of B.D.Venkatarathnam. He has also testified to the effect that B.D.Venkatarathnam is no more. It is also his assertion that himself and his uncle B.D.Venkatarathnam went to the Sub-Registrar's office for the execution of Partition deed marked as Ex.P6 and thus, he knew the signature of his uncle B.D.Venkatarathnam. The said B.D.Venkatarathnam is none other than the husband of PW6-Devi, the eldest daughter of the testator A.J.Kuppammal. She has also identified the signatures of A.J.Kuppamal as the executant of Ex.P1 Will and the signature of her husband B.D.Venkatarathnam as an attestor and identifying witness found in Ex.P1 Will.
13. The creditability of the testimonies of the above said witnesses regarding the execution of the Will and the Will being found attested by the two attestors mentioned therein, who are no more, has not been shaken by the defendants by eliciting any point during cross-examination. On the other hand, it seems an attempt was made to contend that the document Ex.P1 could have been obtained by playing fraud and forgery. From the evidence, we have to necessarily arrive at a conclusion that the execution of the document has not been disputed and on the other hand, complying with the requirements of the provisions of the Evidence Act as to the proof of a Will when both the attestors are not alive, the plaintiff has proved its due execution and attestation. The evidence adduced on the side of the plaintiff is enough to discharge the burden of proof cast on him and to cast the onus on the defendants to prove their case of fraud as a vitiating factor.
14. Except the interested testimony of the first defendant A.J.Manavalan as DW1, no other evidence is available in support of the defendants' case of forgery of the signature of the one of the attestors and fraud committed on the testator in bringing the testament into existence. A reading of the entire testimony of DW1 will show that the allegation of fraud having been played on the testatrix and forgery of the signature of one of the attestors has been made on assumptions. The defendants have made an unsuccessful attempt to show that the disposition made in the suit Will is unnatural and the Will is surrounded by suspicious circumstances because of the preference of the grandsons through one of the sons and disinheritence of the other heirs, namely the defendants and PW6- Devi, who are the other son and daughters of the testator A.J.Kuppammal. The mere fact that there is deviation from normal line of succession as per the rule of intestate succession and some of the persons alone are given the benefit in preference to others, per se will not be enough to hold that the execution of the Will is surrounded by suspicious circumstances. Will is executed making a bequest only to deviate from the normal line of succession. If at all the normal line of succession is intended to be applied, there shall be no necessity to execute a Will. The Court shall not look at the Will with suspicion, simply because the normal line of succession has been interfered with. Reasonableness of the disposition also cannot be the sole ground on which the genuineness of the Will can be disbelieved. The Court should not substitutes its own sentiment as to whether the disposition made by the testator is justifiable or not. Even if the disposition made in the Will is against the conscience of the presiding officer according to his perception of the matter, still if it is proved that the testator has chosen to adopt such a way of arrangement for succession to his/her properties after his/her death, the Court shall try to give effect to the said wish of the testator rather than substituting its idea as to the reasonableness of the disposition.
15. In this case, it is true that out of four children, the testator A.J.Kuppammal has preferred sons born to one of the sons alone. The plaintiff and the first defendant are the sons of Kuppammal. Second defendant M.L.Dhanalakshmi and PW6 Devi are the daughters of Kuppammal. Out of the four, Kuppammal has preferred the sons of the plaintiff to be the legatees under the Will. In fact she has chosen to make a provision to the effect that the property dealt with in the Will in entirety will go to her husband after her death to be enjoyed till his life time and then would go to A.N.Mohana Krishnan and A.N.Thyagarajan, sons of the plaintiff absolutely after the death of the husband of the testator. Such a provision was made to meet the contingency of the testator dying before her husband. Contemplating the other possibility also, namely testator's husband dying during the life time of the testator, she has directed in her Will that in such an eventuality, the property shall vest with A.N.Mohana Krishnan and A.N.Thyagarajan, sons of the plaintiff on the death of the testator. She has also taken care to appoint the plaintiff as the executor to take possession of the property after the death of the husband of the testator in case he would survive the testator and manage them on behalf of the ultimate legatees, namely A.N.Mohana Krishnan and A.N.Thyagarajan till they attain majority and for handing over the property to them on their attaining majority. In case of the contingency of her husband predeceasing the testatrix, the executor has to take possession on the death of the testatrix and manage the property on behalf of the legatees till they attain majority and give possession to them on their attaining majority.
16. Of course, the testator has chosen to disinherit both her daughters, namely second defendant and PW6. But it is pertinent to note that the other daughter, namely PW6 is not aggrieved by the act of her mother in not making any provision for her in her Will. In fact the second attestor of the Will was none other than the husband of PW6. Second defendant has not chosen to enter the box to depose how the Will could be construed as unnatural. When the female issues are omitted from inheritance by the device, we can say that the testator intended to ensure that the property does not go to the other family to which her female heirs would be given in marriage. Of course, even among the male issues, the testator seems to have preferred the branch of the plaintiff alone leaving the branch of the first defendant. It seems, the first defendant was well placed as evident from his testimony and that happened to be the reason why the sons of the plaintiff alone were preferred. While doing so, the testatrix also ensured that provision was made for her husband till his life time, if he would survive her. Therefore, the mere fact that one son and two daughters were disinherited, will not be enough to hold the Will to be unnatural and surrounded by suspicious circumstances.
17. It is true that under the original of Ex.P4-Settlement deed, Kuppammal had settled another house property at No.37, Nagathammankoil Street, Mettupalayam, Madras 33 in favour of PW6 B.V.Devi and her son B.V.Murali. Even after such settlement some other properties adjourning the said property was available with the testator Kuppammal. In order to show she was in enjoyment of the property, Ex.P5 letter to the Assistant Engineer, Metrowater is sought to be produced. But no significance can be attached to the same. On the other hand, it is pertinent to note that the property dealt with in the Will is an undivided half share in a house property. The property was purchased jointly in the names of the testatrix A.J.Kuppammal and A.N.Vyjayanthi, the wife of the plaintiff. An attempt was made to show that the property was not purchased either by her or by Vyjayanthi and on the other hand it was purchased by the father of the plaintiff and the first defendant, in the name of his wife Kuppammal and daughter-in-law Vyjayanthi and hence the testatrix could not have chosen to make a provision regarding succession to the said property. Of course, there is admission by PW1 and PW2 that the property was purchased by A.V.Jayachandran, the father of the plaintiff and the first defendant, in the name of his wife Kuppammal and daughter-in-law A.N.Vyjayanthi. Whether they would have got a valid title to the property by the purchase made in their name under the sale deed cannot be canvassed here and the same is not an issue in a Testamentary Original Suit in which the only question that arises for consideration is the genuineness of the Will. Therefore, the mere fact that the property had been purchased by A.V.Jayachandran, the father of the plaintiff and the first defendant, in the name of his wife A.J.Kuppammal and daughter-in-law A.N.Vyjayanthi cannot be allowed to be canvassed as a ground to contend that A.J.Kuppammal could not have executed the Will on her own volition. There is no whisper that the testatrix A.J.Kuppammal is incapable of executing a Will because of illness or absence of possession of sound disposing state of mind. On the other hand, the defendants have pleaded that the Will was brought into existence by playing a fraud on the testatrix and by forging signature of one of the attestors. Such plea is not based on any concrete material, but based on assumption and has been made for the sake of making a plea of defence.
18. Admittedly, A.V.Jayachandran, the father of the plaintiff and the first defendant, died in the year 1996. It is obvious from the Death certificate Ex.P2 that he died on 13.05.1996. Similarly, it is obvious from the death certificate of A.J.Kuppammal that she died on 31.01.2001. After the death of A.J.Kuppammal, within two months thereafter, the plaintiff, defendants and their other sister Devi (PW6) chose to effect a partition of the properties left by their father A.V.Jeyachandran under a registered partition deed dated 30.03.2001. A copy of the same has been marked as Ex.P6. The joint family properties and the properties left by A.V.Jeyachandran alone were made the subject matter of the partition. The parties chose to effect partition of the other properties alone after the death of A.J.Kuppammal will show that they were aware of the existence of the Will made by A.J.Kuppammal and the genuineness of the same. As rightly contended by the learned counsel for the plaintiff, only because of their awareness of the existence of the Will and its validity, the parties chose to effect partition of the other properties leaving the properties covered by the Will. Ex.P10 is the Affidavit of assets filed by the plaintiff. Consent affidavits of legatees have been marked as Exs.P8 and P9. Consent affidavits of PW6 - Devi has been marked as Ex.P7.
19. For all the reasons stated above, this Court comes to the conclusion that the plaintiff has proved the Will in the manner known to law and on the other hand, the defendants have miserably failed in proving their contention that the Will was brought into existence by playing fraud and that the signature of one of the attestors found in the Will is forged.
20. In the result, the Testamentary Original Suit shall stand allowed and probate of the last Will and Testament of deceased A.J.Kuppammal dated 29.12.1977, to be effective through out Tamil Nadu, is granted in favour of the plaintiff. No costs.
Index: Yes/No
Internet: Yes/No
gpa 20.04.2012
P.R.SHIVAKUMAR.J.,
gpa
Pre-delivery Judgment in
T.O.S.No.25 of 2009
20.04.2012