Madras High Court
Kasthuri Bai vs V.Ashok Kumar
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
RESERVED ON : 17.02.2017
DELIVERED ON : 21 .02.2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CORAM
THE HON`BLE MR.JUSTICE N.SATHISH KUMAR
T.O.S.Nos. 6 of 2005 and 14 of 2011
in
(O.P.Nos.841 of 1999 and 103 of 1999)
1. Kasthuri Bai .. Plaintiff in TOS.No.6 of 2005
2. V.Ashok Kumar .. 1st Plaintiff in TOS.No. 14 of 2011
3. V.Ashok Kumar .. 2nd Plaintiff in TOS.No. 14 of 2011
Vs.
1. V.Ashok Kumar .. Defendant in TOS.No.6 of 2005
2. Saraswathi .. 1st defendant in TOS.No.14 of 2011
3. Renuka .. 2nd defendant in TOS.No.14 of 2011
4. Kasthuri .. 3rd defendant in TOS.No.14 of 2011
5.Jothi .. 4th defendant in TOS.No.14 of 2011
Original Petition Nos. 841 of 1999 and 103 of 1999 were filed under Sections 232, 255 and 276 of the Indian Succession Act, for the grant of letters of Administration. Against this petition, a Caveat was filed on 07.6.2000, 03.3.1999, 12.3.1999, and 28.6.2010 respectively by the Caveators. As per order of this Court dated 03.03.2005 in O.P.No.841 of 1999 and 25.4.2011 in OP.No.103 of 1999, the Original Petition Nos.841 of 1999 and 103 of 1999 were converted into Testamentary Original Suit Nos. 6 of 2005 and 14 of 2011 respectively.
For Plaintiff in TOS.No.6 of 2005
and defendant in TOS.No.14 of 2011 : Mr.P.Balaji
For defendant in TOS.No.6 of 2005
and Plaintiff in TOS.No.14 of 2011 : Mr.S.Parthasarathy
C O M M O N J U D G M E N T
The petitions originally filed for the grant of Letters of Administration have been converted as suits in view of the caveat filed by the respective defendants therein.
2. Since the subject matter of both the Will relates to the same properties and parties are one and the same, common judgment is being passed. For the sake of convenience, the facts have been culled out from testamentary Suit No.6 of 2005.
3. The brief facts of the plaintiff's case are as follows:
(i) According to the plaintiff, the testatrix died on 30.05.1998 leaving Last Will and Testament, which was duly executed by her on 27.12.1993, in the presence of two witnesses. The plaintiff is one of the beneficiaries under the Will. In the Will, the deceased bequeathed her immovable property, namely, House property, situate in Royapettah, Chennai, in favour of her daughters and grand son. Similarly, the deceased bequeathed the other property, situate in Chella Pillayar Koil Street, Chennai, to V.Pandarinatha Rao and V.Ashok kumar, which does not belong to the testator at all.
(ii) The amount of assets which is likely to come into the plaintiff's hands does not exceed the aggregate sum of Rs.1,50,000/- and the net amount of the said assets is Rs.1,49,000/-. The plaintiff undertakes to duly administer the property and credits of the deceased in any way concerned in the Will by paying first her debts and then the legacies therein bequeathed so far as the assets will extend and to make a full and true inventory thereof and exhibit the same to the Court within six months from the date of grant of Letters of Administration, with the Will annexed and also to tender to this court a true account of the said property and credits within one year from the said date. The plaintiff also submits that no application has been made to any other District Court or delegate or to any other High Court for probate or Letters of Administration with or without the Will annexed to the property and credits. Hence, the suit is filed for grant of Letters of Administration.
4. The brief facts of the defendant's case are as follows:
According to the defendant, the suit is not maintainable as the deceased Bali Bai died on 30.5.1998 and not on 29.5.1998 as stated in the plaint. It is stated that as per the Will, the defendant's elder brother was in possession and enjoyment of the first item of the property and the defendant herein was in possession and enjoyment of the second item of property. It is further stated that in the year 1993, the deceased was not in conscious mind and she had a poor eye sight and that, the plaintiff and other daughters of the deceased with the help of their husband, had created the alleged Will by forging the signature of the deceased. If really she executed the Will, she would have mentioned about the Will dated 25.09.1969 and cancelled the same, which clearly shows that the Will was created by the plaintiff and other daughters by forging the signature of the deceased for their personal gain. Therefore, according to the defendant, the Will dated is not valid in law and hence, prayed for dismissal of the suit.
5. The following issues are framed by this Court in TOS.No. 6 of 2005 as well as in TOS.No.14 of 2011: -
1.Whether the Wills dated 27.12.1993 and 25.9.1969 respectively are the last Will and Testament of the Testatrix, Late E.Bali Bai?
2.Whether the Will dated 27.12.1993 and 25.09.1969 were executed by Late Bali Bai when she was in sound and disposing state of mind?
3.To what other reliefs, the parties are entitled to?
6. Since the subject matter of both the Will relate to the same properties and the parties are the legal heirs of one Balibai, the testatrix, a joint trial was conducted in both the suits and common evidence was recorded. On the side of the plaintiff P.W.1 and P.W.2 were examined and Exs.P1 to P4 were marked. On the side of the defendants, D.W.1 to D.W.4 were examined and Exs.D1 and D4 were marked. The details of the documents are hereunder:
Exhibits produced on the side of the plaintiffs:
S.No Exhibits Date Description of documents
1. P-1 30.05.1998 Death Certificate of Bali Bai
2. P-2 27.12.1993 Registered Will executed by Bali Bai
3.
P-3
-
Photograph
4. P-4 series
-
Photograph Exhibits produced on the side of the defendants:
S. No. Exhibits Date Description of documents 1 D-1 25.09.1969 Registered Will executed by Bali Bai 2 D-2 15.02.2000 Case Summary 3 D-3 20.10.1983 Prescription given by Dr.B.Ramamoorthy 4 D-4 11.01.1983 Prescription given by Dr.B.Ramamoorthy Witnesses examined on the side of the plaintiff in TOS.No.6 of 2005/defendant in TOS.No. 14 of 2011:
P.W.1 Kasthuri Bai P.W.2 -Lakshmi Kumar Witnesses examined on the side of the defendants in TOS.No.6 of 2005 and Plaintifs in TOS.No.14 of 2011 D.W.1 Pandai Rao D.W.2- V.Ashok Kumar D.W.3- M.S.Bakthavatchalam D.W.4- Mathiazhagan KJ
7. The learned counsel appearing for the plaintiff in TOS.No.6 of 2005 (3rd defendant in TOS.No.14 of 2011) would submit that her mother, Bali bai, bequeathed the property under the Will dated 27.12.1993, which is the subsequent registered Will of the testatrix, and the same has been proved in the manner known to law. The learned counsel contended that the allegation made by the defendant that the testatrix was not in sound and disposing state of mind at the time of execution of the Will dated 27.12.1993 has not been established by the defendants in TOS.NO.6 OF 2005 (Plaintiff in TOS.No.14 of 2011). It is further contended by the learned counsel that the other allegation with regard to the forgery of the signature of the testatrix has also not been established by the defendant. No suspicious circumstances, whatsoever, established by the defendants in TOS.No.6 of 2005 (plaintiff in TOS.No.14 of 2011)as against the subsequent Will of the testatrix Balibai. The evidence of D.W.3 and D.W.4. Would not help the defendants to disprove the Will. Hence, submitted that the Will dated 25.09.1969 is superseded in view of the subsequent Will dated 27.12.1993, executed by the testatrix Balibai.
8. It is the submission of the learned counsel that the property covered in the Will is a self earning property of the testatrix and that she has executed the Will in the year 1969 bequeathing the property only to the son, who are the plaintiffs in TOS.No.14 of 2011. Thereafter, since she realised that the daughters are also equally entitled to, she had executed the subsequent Will. Merely because there is no recitals in the subsequent Will cancelling the earlier Will, the same cannot be a ground to hold that the earlier Will of the year 1969 is valid in law. It is further submitted by the learned counsel that attesting witnesses also clearly spoken about the execution of the Will. Merely because, the beneficiary in the Will were present at the relevant time, that itself will not amount to suspicious circumstances. Hence, the learned counsel submitted that there was no unjust and unfair distribution of property in the Will as alleged by the defendants. The properties have been equally apportioned to all the legal heirs of the testatrix. Therefore, the learned counsel submitted that the plaintiff in TOS.No.6 of 2005 is entitled for grant of Letters of Administration in respect of the Will dated 27.12.1993 and that the suit filed filed by the son of the testatrix in TOS.No.14 of 2001 is liable to be dismissed. In support of his contention, the learned counsel relied on the judgments reported in 2012 AIR SCW 2347 (MAHESH KUMAR V. VINOD KUMAR AND OTHERS) .
9. On the contrary, it is the submission of the learned counsel for the defendants in TOS.No.6 of 2005 /plaintiffs in TOS.No.14 of 2011 that the testatrix had already executed a Will in the year 1969 and as per the said Will, two sons, namely, the plaintiffs in TOS.No.14 of 2011, alone were given possession of the property and hence, the subsequent Will of the year 1993, is a fabricated one and that the testatrix was not in a sound and disposing state of mind at the time of execution of the subsequent Will. It is submitted by the learned counsel that the testatrix was not having proper eye sight at the relevant time. In the evidence, D.W.4, Doctor, who was examined in this aspect, deposed that testatrix was not in a sound state of mind at the time of execution of the Will dated 27.12.1993. Hence, it is submitted by the learned counsel that the subsequent Will has not been established in accordance with law.
10. It is contended by the learned counsel for the defendants in TOS.No.6 of 2005 that there are serious suspicious circumstances surrounded in the Will. The beneficiaries have taken prominent role in executing the Will. Hence, submitted that the Will dated 1993 propounded by the plaintiff in TOS.No.6 of 2005, has not been established. Whereas the Will dated 25.9.1969 propounded by the defendants in TOS.No.6 of 2005/plaintiff in TOS.No.14 of 2011 has been clearly established in the manner known to law. P.W.3 one of the son of the attesting witnesses also identified the signature of the attesting witnesses in the Will dated 25.09.1969. Hence, the Will dated 25.08.1969 has been proved in the manner known to law. Therefore, the learned counsel prayed for dismissal of the suit in TOS.No.6 of 2005 and for decreeing the suit in TOS.No.14 of 2011. In support of his arguments, the learned counsel has placed reliance on the judgments reported in 2012 (1) L.W 636 (Perumal v. Alagammal@Pappathi); 2010 -3 L.W. 769 (Pushpa Bala Jagam v. K.Ananda Kumar and two others) 2009 3- L.W. 854 (K.Laxmanan v. Thekkayil Padmini and Others) and 2012 AIR SCW 2347 (Mahesh Kuma v. Vinod Kumar and Others).
11. In the light of the above submissions, now this Court has to analyse the issues framed by this Court.
Issue Nos. 1 to 3:
12. The plaintiff in TOS.No. 6 of 2005 is the daughter of the testatrix and the plaintiffs in TOS.No.14 of 2011 are the sons of the testatrix Balibai. The relationship between the parties are not in dispute. The other legal heirs, i.e. other daughters, son and grand children of the testatrix Balibai were made as respondents in OP 841 of 1999. The sons have filed the suit in TOS No.14 of 2011, wherein the defendants are the daughters of the testatrix. These facts are also not disputed. There is no dispute with regard to the earlier Will said to have been executed by the testatrix Balibai in the year 1969. Only allegation seems to be that since the testatrix executed the subsequent Will dated 27.12.1993, earlier Will dated 25.09.1969 automatically revoked.
13. In the above background, when the Will propounded by the plaintiffs in TOS.No.14 of 2011 is carefully perused, it is seen that in the year 1969, the testatrix Balibai, mother of the plaintiffs in the said suit, executed registered Will dated 25.09.1969, wherein A schedule property has been bequeathed to one of the son, viz., V.Pandari Rao and B schedule property, namely, superstructure with leasehold right on land belonging to Chota Naksha Charities, bearing Municipal Door No.17, Royapettah, Madras, has been bequeathed to another son, viz., V. Ashok kumar. To comply the legal requirements, one M.S.Bakthavatchalam, D.W.3, was examined to identify one of the attesting witnesses signature in the Will. D.W.3 in his evidence, identified the signature of his father M. Srinivasan, who was also one of the attesting witnesses in the Will dated 25.09.1969. The signature of the attesting witnesses have not been disputed by both sides.
14. It is to be noted that the attesting witnesses were not alive. Hence, the Will must be proved by resorting the provisions, as contemplated under Section 69 of the Indian Evidence Act, 1872. Section 69 of the Indian Evidence Act, 1872 reads as follows:
Proof where no attesting witness found- If no such attesting witness can be found, or if the documents purports to have been executed in the United Kingdom, it must be proved that the attestation witness at least is in his handwriting, and that the signature of the person executing the documents is in the handwriting of that person.
15. On a reading of the above section, it is clear that to prove the hand writing of the attesting witness, the person, who has acquaintance with the signature of such attesting witness as well as the signature of the executor has to be examined before the Court of law. If D.W.3 has identified the signature of the executor as well as one of the attesting witnesses, then it could be easily inferred that the Will has been properly proved as required under law. But in this case, D.W.3 has not identified the signature of the person, who executed the aforementioned document. Therefore, merely because D.W.3 identified his father's signature, who was one of the attesting witnesses in the Will, it cannot be concluded that the Will has been proved in the manner known to law as he has failed to identify the signature of the testatrix in the Will. Therefore, the execution of the Will dated 25.09.1969 has not been established by the plaintiffs in TOS.No.14 of 2011.
16. It is further to be noted that the so called Will, which was executed in the year 1969, came to light only in the year 1999, i.e. subsequent to the receipt of notice in OP.No.841 of 1999 (TOS.No.6 of 2005). This fact also clearly indicate that the earlier Will of the testatrix executed in the year 1969 has not been acted upon. In fact, the same has been revoked in view of the subsequent Will dated 27.12.1993 executed by the testatrix.
17. In these circumstances, now it has be analysed whether the subsequent Will dated 27.12.1993 executed by Balibai is valid and proved in the manner known to law. It is not disputed by the parties that the testatrix Balibai has two sons and two daughters. The Will dated 25.09.1969 was executed when one of her son was minor. Thereafter, on 27.12.1993, the testatrix Balibai had executed another Will, bequeathing the B schedule property to daughters equally and A schedule properties to his sons equally. But in the subsequent Will, leasehold rights with regard to the superstructure alone were bequeathed to all the daughters equally, whereas the absolute properties have been bequeathed in favour of two sons in the Will. The recitals in the Will clearly indicate that the testatrix has made equal distribution to all the legal heirs and in fact, she has given absolute property to the sons and leasehold rights to the daughters. But there is no mention about the leasehold rights in the subsequent Will. The description of property mentioned in the earlier Will clearly proves the same.
18. It is an admitted fact by both sides that the testatrix died on 13.5.1998 i.e., after five years from the date of execution of Ex.P2 registered Will. P.W.2, Lakshmi Kumar, one of the attesting witnesses, who is said to be the son-in-law of the testatrix, in his evidence has stated that the testatrix executed the Will in his presence and also in the presence of other attesting witnesses and the testatrix also seen the attesting witnesses signing the Will. It is the evidence of P.W.2 that the Will was executed while the testatrix was in hale, healthy and was in a sound and disposing state of mind. His entire evidence clearly proves the fact that the Will was originally signed in the house and thereafter registered in the Registrar Office. P.W.2 in his evidence has clearly stated that the testatrix has not signed the Will in the Registrar Office, but, in fact the Will was read over to the testatrix in the house itself and signed by her. His evidence also clearly proves the fact that she was in good state of mind at the relevant time. The above evidence of P.W.1 with regard to the state of mind of the testatrix has not even denied in the cross examination.
19. Only contention of the defendants in TOS.No.6 of 2005 is that since P.W.2 and other witnesses,viz., Chockalingam and Parasuraman, were friends, the plaintiff in TOS.No.6 of 2005 by taking advantage of the testatrix's blindness and ill health got the Will registered. Except the above suggestion, there is no mention in the cross examination of P.W.2. Further, in the evidence, P.W.1, one of the beneficiary in the Will and who is the plaintiff in the Suit in TOS.No.6 of 1995, deposed that the testatrix was living with one of her son at the relevant time and while executing the Will, all the legal heirs were present. All these facts, coupled with the fact that the Will of the year 1969 has seen the light of the day only in the year 2011, clearly probablise the fact that all the family members were aware of the Will dated 27.12.1993. The evidence of P.W.1 also clearly shows that the testatrix was living with her brother, Pandari Rao at the time of execution of the Will. The above aspect is not even denied in the entire cross examination. The cross examination proceeded on the premise that since in the subequent Will, there is no mention about the earlier Will, the subsequent Will is a fabricated one. Except putting the above suggestion, no other circumstances were brought in the cross examination.
20. It is admitted that the Will was registered on 27.12.1993 in the registrar office. Further, the signature of the testatrix is also not seriously disputed. Though D.W.1 denied during cross examination that signature found in the Will is not that of his mother, D.W.2, another son of the testatrix, has admitted the signature of the testatrix found in the Will. Ex.P2. Further, D.W.2, in his evidence in the cross examination clearly admitted that the defendants, i.e. sons of the testatrix, have no ill feeling with their sisters and their parents used to treat all the children equally. He has also admitted that her mother attended the marriage of his grand children. He did not deny the suggestion that his mother has accompanied him to the funeral of Mr.Surya Narayanan in 1996. D.W.1 also in his evidence has identified his mother's photographs taken in the year 1995. Those photographs were marked as Exs.P3 and P4.
21. The learned counsel for the defendants has objected the marking of photographs on the ground that negatives were not produced. It is to be noted that those photographs were marked during cross examination. The son of the testatrix himself admitted the photograph of his mother, which was taken during the marriage of one of her grand son on 18.6.1995. These facts clearly indicate that the mother was hale and healthy till her death. The evidence of the witnesses clearly shows that she never hospitalised till her death and she died in the house. All these facts clearly show that in the year 1993, the testatrix was in a sound and disposing state of mind while executing the subsequent Will dated 27.12.1993.
22. In view of the above facts coupled with the evidence of P.W.1 and P.W.2 and that the fact that equal apportionment given to the legal heirs, this Court does not find any suspicious circumstances shrouded in the Will. Of course, the evidence of P.W.1 and P.W.2, clearly shows that they were aware of the execution of the Will and all the family members including sons of the testatrix were present at the time of the execution of the Will but, however, they have not gone to the Registrar Office. The above facts cannot be ignored altogether. Merely because the beneficiaries were present at the time of execution of the Will, that itself cannot be a ground to raise suspicion against the Will, more particularly, when equal apportionment has been made to all the legal heirs in the Will.
23. As discussed above, insofar the B schedule properties are concerned, admittedly, only the superstructure with leasehold rights alone were bequeathed to the daughters whereas the absolute properties have been bequeathed in favour of two sons, namely, the defendants in TOS.No.6 of 2005. If really, the Will was a fabricated one as alleged by the defendants in TOS.No.6 of 2005, the testatrix could not have bequeathed the absolute property in favour of her sons.
24. It is the main contention of the defendants in the written statement that the signature of the testatrix in the Will dated 27.12.1993 is a forged one. It is well settled that if the plea of forgery is raised, the entire burden lies on the defendants in TOS.NO.6 of 2005 to establish the same. The defendants have not taken any steps to get the expert opinion to show that the alleged Will is a forged one. Once the execution, attestation as well as the testamentary capacity of the testatrix has been established by the propounder of the Will, then the burden shifts on the other side, who set up the case of forgery to prove the same.
25. Yet another ground taken by the defendants in TOS.No.6 of 2005 in the written statement that the testatrix was not having conscious mind and had poor eye sight in the year 1993, and, therefore, she could not execute the Will. To prove the above fact, one D.W.4, who is a Doctor by profession, was examined. D.W.4 in his evidence has deposed that the testatrix was taking treatment in the year 1983. Exs.D2 to D4 were also filed to show that testatrix was not in sound state of mind and was having poor vision at the relevant time. ExD2 is the case summary issued by Sankara Nethralaya on 15.02.2000. The case summary shows that as if one G.Bally Bai was first seen in the hospital on 07.5.1993 with regard to the decreased vision in the right eye and for poor vision in the left eye. Thereafter, she was treated for the same on 21.5.1993. The case summary shows that one G.Bally Bai was treated for some poor eye sight.
26. It is to be noted that the above case summary was issued only on 15.2.2000 for the alleged treatment said to have been taken in the year 1993 and 1996. It is pertinent to note that in the said case summary, patient name has been mentioned as G.Bally Bai whereas the testatrix's name is V.Bali Bai. Therefore, the said Ex.D2 cannot be taken into consideration. Further, no one in the hospital in which the testatrix was actually treated for poor vision etc, was examined to prove the case summary. Even assuming that she was treated for some poor vision in the year 1993, it cannot be stated that she had no testamentary capacity to execute the Will. Further, the case summary does not show that the testatrix had lost her vision in toto. Therefore, Ex.D2 itself cannot be a ground to conclude that the deceased testatrix had lost her eye vision and that, she has no capacity to execute the Will.
27. Whereas, the evidence of P.W.2 in the cross examination clearly shows that she has attended marriage in the year 1995. She also appeared in one of the photographs taken in the said marriage. All these facts would nullify Exs.D2 to D4, medical prescription said to have been issued in the year 1983 to the said Bali Bai by the doctors, namely Ramamurthi and Ravi. D.W.4 in her evidence has stated that he came to give evidence as a professional engagement. Therefore, his evidence cannot be taken into consideration. That apart, he has admitted that the date mentioned in Ex.D3 i.e. 20.10.1983 is written with different ink at a later point of time. It is also admitted by him that the testatrix was treated as Out patient and only some medicine was prescribed under Exs.D3 and D4 for vertigo. His evidence also does not show that the testatrix has no mental capacity at the relevant time. Therefore, merely because some prescription was given in the year 1983 for vertigo problem, that itself cannot be a ground to hold that she lost her eye sight and had no mental capacity. Whereas the evidence of P.W.1, D.W.1 and D.W.2 clearly show that the testatrix was not hospitalised till her death. All these facts, in fact, would clearly prove the fact that the testatrix did not have any serious ailments at the relevant time.
28. It is further to be noted that Ex.P2 is a registered document. It is well settled that mere registration will not dispense the proof of the Will. From the registration of the documents, presumption can be drawn that all the official acts were done properly. The testatrix, in fact, went to the Registrar office and signed in the document and thump impression was obtained by the officials. All these things have been done in a proper manner. Therefore, it is clear that the testatrix executed the Will in a sound and disposing state of mind. If really there was total incapacity of the testatrix, as contended by the defendants, the documents, itself would not have been registered in the Registrar office. Therefore, this Court cannot ignored the factum of registration. Besides, the evidence of P.W.2 also prove the execution, attestation as well as the testamentary capacity of the testatrix. As already stated above, the apportionment made to all the legal heirs in the Will is also just and fair.
29. From the cumulative effect of all these facts, only inference could be drawn by this Court is that the Will dated 27.12.1993 has been properly executed by the testatrix and hence, mere participation of one of the beneficiary's husband as an attesting witness cannot be a ground to suspect the Will. Mere presence of the beneficiary at the time of execution of the Will and signing as an attesting witness by one of the relative of the testatrix cannot be a ground to nullify the Will executed by the testatrix.
30. It is also the contention of the learned counsel for the defendants in TOS.No.6 of 2005 that the earlier Will cannot be revoked in view of non mentioning of the same in the subsequent Will. In this context, it is useful to refer the judgment relied on by the learned counsel for the plaintiff in TOS.No.6 of 2005 in the case of Mahesh Kumar v. Vinod Kumar and others cited supra, wherein the Hon`ble Apex Court has held that mere absence of a categorical recital in the subsequent Will about the cancelling of the earlier Will is not relevant because once the execution of the second Will is held as duly proved, the earlier Will automatically becomes redundant because the second Will represents the last wish of the testator. Therefore, the contention of the defendants cannot be countenanced in that aspect.
31. Insofar the judgments in the case of Pushpa Bala Jagam v. K.Ananda Kumar and two others and Perumal v. Alagammal @ Pappathi, cited supra relied on by the learned counsel for the defendants are concerned, there is no dispute with regard to the proposition set out in the said judgments. But in the given case, considering the entire evidence, this Court does not find any suspicious circumstances surrounded in the Will. Therefore, the above judgments are not applicable to the facts of the present case.
32. In the judgment reported in (2005 ) 1 SCC 280 (Meenakshiammal v. Chandrasekaran and another), the Hon`ble Apex Court has held as follows:
"20. In the case of Ryali Kameswara Rao v. Bendapudi Suryaprakasarao [AIR 1962 AP 178] the Court while discussing the provisions of Section 63 of the Succession Act, 1925, has held that the suspicion alleged must be one inherent in the transaction itself and not the doubt that may arise from conflict of testimony which becomes apparent on an investigation of the transaction. That suspicious circumstances cannot be defined precisely. They cannot be enumerated exhaustively. They must depend upon the facts of each case. When a question arises as to whether a will is genuine or forged, normally the fact that nothing can be said against the reasonable nature of its provisions will be a strong and material element in favour of the probabilities of the will. Whether a will has been executed by the testator in a sound and disposing state of mind is purely a question of fact, which will have to be decided in each case on the circumstances disclosed and the nature and quality of the evidence adduced. When the will is alleged to have been executed under undue influence, the onus of proving undue influence is upon the person making such allegation and mere presence of motive and opportunity are not enough."
33. Similarly, in another judgment reported in (2005) 8 SCC 67 (Pentakota Satyanarayana v. Pentakota Seetharatnam, the Hon`ble Apex Court has observed as follows:
.. .. ..25. It is settled by a catena of decisions that any and every circumstance is not a suspicious circumstance. Even in a case where active participation and execution of the Will by the propounders/ beneficiaries was there, it has been held that that by itself is not sufficient to create any doubt either about the testamentary capacity or the genuineness of the Will. It has been held that the mere presence of the beneficiary at the time of execution would not prove that the beneficiary had taken prominent part in the execution of the Will. This is the view taken by this Court in Sridevi v. Jayaraja Shetty [(2005) 2 SCC 784] . In the said case, it has been held that the onus to prove the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the proof of signature of the testator as required by law would not be sufficient to discharge the onus. In case, the person attesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same and that as to what suspicious circumstances which have to be judged in the facts and circumstances of each particular case. .. .."
34. Taking into consideration of the above judgments and analysing the entire evidence and also considering the facts of the case, this Court does not find any suspicions circumstances surrounded in the Will dated 27.12.1993. Hence, this Court hold that the plaintiff in TOS. No.6 of 2005 is entitled for grant of Letters of Administration in respect of the property bequeathed to him under the said Will. As the Will propounded by the plaintiff in TOS.No.6 of 2005 has been proved in the manner known to law, the earlier Will dated 25.09.1969 is automatically revoked. Besides, as already discussed above, the plaintiffs in TOS.No.14 of 2011 has not proved the Will dated 25.09.1969, as contemplated under Section 69 of the Indian Evidence Act, 1872. The issues are, accordingly, answered.
35. In the result,
(i). The suit in TOS.No.6 of 2005 is decreed.
(ii). The Letters of Administration, having the effect limited to the State of Tamil Nadu, shall be issued in favour of the plaintiff in respect of the property bequeathed to him in the Will dated 27.12.1993.
(iii). The plaintiff is directed to duly administer the estate of the deceased.
(iv). The plaintiff shall execute a security bond for a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) in favour of the Assistant Registrar (O.S-II), High Court, Madras.
(v). The plaintiff is further directed to render true and correct accounts once in a year.
(vi) The suit in TOS.No.14 of 2011 is dismissed.
(vi). Considering the relationship between the parties, there shall be no order as to costs in both the suits.
21..02..2017 Index:Yes/no Internet: Yes/no ga N.SATHISH KUMAR.J. ga Pre-delivery Judgments in TOS.Nos.6 of 2005 and 14 of 2011 (O.P.Nos.841 of 1999 and 103 of 1999)
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