Madras High Court
C.S.Devakumar vs K.S.Krishnakumar on 1 November, 2010
Author: D.Hariparanthaman
Bench: Elipe Dharma Rao, D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01/ 11 / 2010
CORAM
THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO
AND
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
O.S.A.NO.74 OF 2003
1. C.S.Devakumar
2. C.S.Sethu ... Appellants
versus
1. K.S.Krishnakumar
2. N.Sankar
3. M.Murugavel
4. C.D.Suresh Kumar
5. C.S.Sampath Kumar
6. C.S.Sivaprakasam
7. Vatchala ... Respondents
(7th respondent impleaded as a
party respondent vide order of this Court
dated 13.03.2006 made in C.M.P.No.1619 of 2006)
PRAYER: O.S.A filed under order 36 Rule 9 of the O.S. Rules against the Judgment and Decree dated 15.03.2001 made in T.O.S.No.9/1991 on the file of this Court.
For Appellants : Mr.V.Raghavachari
For Respondent-1 : Mr.C.P.Sivamohan
For Respondents 2 and 3 : Mr.Ramesh
For Respondent-7 : Mr.S.V.Subramaniam
J U D G M E N T
D.HARIPARANTHAMAN, J.
The first respondent herein filed Original Petition in O.P.No.303 of 1988 under Sections 222 and 276 of the Indian Succession Act for grant of probate of the last Will and testament dated 22.05.1986 of Mrs.Jagadambal. The respondents 4 to 6 as well as late Mr.C.S.Saravanan filed caveat and objected for grant of probate in favour of the first respondent. In these circumstances, the said Original Petition was converted and registered as Testamentary Original Suit in T.O.S.No.9 of 1991. In the suit, the first respondent herein was the plaintiff and the respondents 4 to 6 herein and the deceased Mr.C.S.Saravanan were the defendants. On the death of Mr.C.S.Saravanan, the appellants herein, who are the sons of the deceased Mr.C.S.Saravanan, were impleaded as defendants 5 and 6. The respondents 2 and 3 herein were impleaded as plaintiffs 2 and 3 in the suit.
2.The testatrix Mrs.Jagadambal is the wife of one Mr.Subramani Mudaliar and the said Subramani Mudaliar predeceased her. Mrs.Jagadambal had four sons and three daughters born through Mr.Subramani Mudaliar. The four sons are,
(i) Mr.C.S.Sampath Kumar
(ii) Mr.C.S.Duraivelu (predeceased Jagadambal)
(iii) Mr.C.S.Sivaprakasam
(iv) Mr.C.S.Saravanan and the three daughters are,
(i) Mrs.Amirthavalli
(ii) Mrs.Vatchala
(iii) Mrs.Jothi
3.Mrs.Jagadambal owned four items of immovable properties and she did not own any other property. Those four properties are at
(i) Door No.42 to 50, Bazaar Street, Villivakkam, Chennai 49.
(ii) Door No.49 to 57, Red Hills Road, Villivakkam, Chennai 49.
(iii) Door No.21, 5th Street, Villivakkam, Chennai 49.
(iv) Pallam of an extent of 0.35 cents in Villivakkam Village bearing Survey No.276/1, Chennai 49.
4.Mrs.Jagadambal executed a Will on 22.05.1986, bequeathing all the four properties mentioned above, to all the male-heirs of her sons and daughters. As one of the daughters viz., Mrs.Vatchala did not have male issue, she was made as one of the beneficiaries in the Will. The Will was attested by two witnesses viz., (a) Mr.R.Kumar and (b) Mr.P.K.Sivanandam, who were the family friends of Mrs.Jagadambal. Later, the Will was registered in the office of the Sub-Registrar, Ambattur on 23.05.1986. Mr.K.R.Shanmugham Mudaliar, the son-in-law of Mrs.Jagadambal, (i.e. the husband of Mrs.Amirthavalli) and his daughter Ms.Shanthi were the witnesses for the registration of the Will. Mr.Krishna Kumar, grandson of Mrs.Jagadambal, born through her daughter Mrs.Amirthavalli and Mr.Ravi Kumar, grandson of Mrs.Jagadambal, born through her son Late Mr.Durai Velu, were the executors of the Will. After execution and registration of the will, Mrs.Jagadambal died on 30.11.1986.
5.The male-heirs of the sons and daughters, who are the beneficiaries under the Will, are given below:-
i) Sons of Mr.C.S.Sampath Kumar
1) C.S.Nanda Kumar
2) C.S.Bala Kumar
ii) Sons of late Mr.C.S.Duraivelu
1) C.D.Suresh Kumar
2) C.D.Ravi Kumar
3) C.D.Ramesh Kumar
4) C.D.Mahesh Kumar
iii) Sons of Mr.C.S.Sivaprakasam
1) C.S.Rajendran
2) C.S.Vijaya Kumar
3) C.S.Srinivasan
4) C.S.Murali
5) C.S.Damodaran
6) C.S.Arumugam (minor at the time of execution of the Will)
iv) Sons of Mr.C.S.Saravanan
1) C.S.Deva Kumar
2) C.S.Sethu
v) Sons of Mrs.Amirthavalli w/o Mr.K.R.Shanmugham Mudaliar
1) K.S.Krishna Kumar
2) K.S.Udaya Kumar
vi) Sons of Mrs.Jothi w/o Mr.A.Marikrishnan
1) M.Shankar
2) M.Murughavel (both were minors at the time of execution of the Will)
6.As stated above, Mr.Krishna Kumar has filed the Original Petition in O.P.No.303 of 1988, praying for grant of probate in his favour, as Mr.Ravi Kumar relinquished his right as executor. As there were objections, the Original Petition was converted as Testamentary Original Suit.
7.Mr.Krishna Kumar, son of Mrs.Amirthavalli as well as Mr.Shankar and Mr.Murughavel, sons of Mrs.Jothi were the plaintiffs. Mr.C.D.Suresh Kumar son of late Mr.Durai Velu, Mr.C.S.Sampath Kumar, Mr.C.S.Sivaprakasam and Mr.C.S.Saravanan sons of Mrs.Jagadambal and Mr.C.S.Sethu, Mr.C.S.Deva Kumar, sons of Mr.C.S.Saravanan, were the defendants.
8.The defendants filed a written statement alleging that the Will is a fabricated document and it has been obtained by playing fraud. It is also stated that there is variation in the signature of Mrs.Jagadambal and factually she could not have signed, as she was totally blind and had lost the usage of her faculties. Mrs.Jagadambal was not taken to office of the Sub-Registrar and some one impersonated for Mrs.Jagadambal. The attesting witnesses, Mr.Kumar and Mr.P.K.Sivanandam, are very close friends of the first plaintiff. The witnesses during the registration of the Will, are the father and sister of the first plaintiff.
9.Before the learned Judge in Testamentary Original Suit No.9 of 1991, the following issues were framed:-
a) Was not the executant Jagadambal competent enough to execute the 'WILL' dated 22.05.1986?
b) Is not the 'Will' dated 22.05.1986 valid and enforceable in the eye of law?
c) Should not the claim of the defendants that the 'Will' is a forged one be rejected?
d) Are not the properties referred to in the 'Will' belonged to the executant Jagadambal absolutely and not ancestral?
e) Should not the suit be decreed as prayed for?
10. On the side of the plaintiffs, four witnesses were examined. Mr.Krishnakumar, PW-1 is the first plaintiff; Mr.P.K.Sivanandam, PW-2 is the attesting witness. Mr.C.D.Suresh Kumar, PW-3 is the first defendant in the suit. Mr.Rajamanikkam, PW-4 is an Advocate, who drafted the Will. 26 documents were marked as Exs.P-1 to P-26.
11.On the side of the defendants, only one witness was examined. Mr.Sethu, DW-1 is the sixth defendant in the suit. 6 documents were marked as Exs.D-1 to D-6.
12.The learned Judge decreed the suit on 15.03.2001. In the judgment, the learned Judge found that one of the attesting witnesses was examined. The learned Judge also found that the testatrix was in good and disposing state of mind and that she had good eyesight also. The aforesaid conclusion was reached by the learned Judge, by relying on the evidence of PW-2 and PW-4, besides the evidence of PW-1, the propounder of the Will. The learned Judge found that the testatrix instructed Mr.Rajamanikkam, Advocate PW-4 to prepare the Will and PW-4 prepared the Will in accordance with the instructions. The learned Judge also recorded that the signature of the testatrix was made in the presence of PW-2, the attesting witness and PW-4, the Advocate, who prepared the Will. Though the learned Judge found that there was slight variation in the signatures found at different pages of the Will, the same need not to be given much importance. On the face of the sufficient and satisfactory evidence to the fact of execution of the Will by the testatrix and also taking into consideration the fact that the testatrix was an old woman, aged nearly 80 years, and hence her hand would have been shaky, the learned Judge granted probate. However, the learned Judge rejected the evidence of PW-3 as untrustworthy and not reliable, as he took one stand in the written statement and took different stand in favour of the plaintiffs, while he deposed before this Court. The learned Judge also rejected the evidence of DW-1 that he spoke inconsistently and his inconsistent testimony would point to the falsity of his evidence. The learned Judge also recorded that DW-1 was a minor, when the Will was executed. The learned Judge rejected the contention of the defendants that the Will is a forged one.
13.The defendants 5 and 6 have preferred the present appeal questioning the said judgment and decree dated 15.03.2001 made in T.O.S.No.9 of 1991 by the learned Single Judge of this Court. Later, Mrs.Vatchala got impleaded as seventh respondent in the present appeal.
14.We heard the submissions made on either side and perused the materials available on record.
15.The learned counsel for the appellants vehemently argued that having noted that there was variation in the signatures of the testatrix in the Will, the learned single Judge ought to have dismissed the suit. It was submitted that the learned single Judge ought not to have compared the signatures of Mrs.Jagadambal in the Will to himself, instead the learned single Judge ought to have referred it for expert opinion from a handwriting expert. It was also submitted that the learned single Judge failed to take into account the fact that the first plaintiff, the propounder, took an active role in the execution of the Will and also the fact that the daughters of Mrs.Jagadambal filed a suit in C.S.No.912 of 1993 alleging that the Will was a fabricated one. The learned counsel proceeded that the co-executor Mr.Ravi Kumar filed an affidavit in Ex.D5 that the Will is a fabricated one and the same was not duly considered by the learned single Judge. The learned counsel also submitted that while PW-4 admitted that Ex.P-2 Will nowhere states that he prepared the document, the learned single Judge ought to have rejected his evidence. It was further submitted that the registration of Will would not establish its genuineness.
16.The learned counsel for the appellants relied on the following judgments in support of his contentions that the Court ought not to have compared the signature at various pages in Ex.P2 Will; that the propounder failed to prove the due execution of the Will; and also that the propounder played prominent part in execution of the Will, rendering the propounder not entitled to claim probate.
(i) For comparison of signature by an expert:-
(a) The State (Delhi Administration) Vs. Pali Ram reported in (1979) 2 SCC 158.
(b) B.Venkatamuni Vs. C.J.Ayodhya Ram Singh and others reported in (2006) 13 SCC 449.
(c) Thiruvengadam Pillai Vs. Navaneethammal and another reported in (2008) 4 SCC 530.
(ii) For the failure of the propounder to prove the due execution of the Will:-
(a) Dinesh Chandra Mitra Vs. Bhabani Prasad Bhowmik reported in AIR 1969 ASSAM AND NAGALAND 118
(b) Kanthi Ram Bora Vs. Dom Bora reported in AIR 1975 GAUHATI 50.
(c) Suresh Chandra Bal and others Vs. Niranjan Bal reported in AIR 1975 ORISSA 161.
(d) Anath Nath Das and others Vs. Sm.Bijali Bala Mondal reported in AIR 1982 CALCUTTA 236.
(e) Mrs.Sumangala T.Pai Vs. S.Sundaresa Pai and others reported in AIR 1991 KERALA 259.
(iii) For prominent part of the propounder in execution of the Will:-
(a) Jagat Ram Vs. Mst. Mathi reported in AIR 1965 Himachal Pradesh 62
(b) Susama Bala Devi and others Vs. Anath Nath Tarafdar and others reported in AIR 1976 Calcutta 377
(c) Kishan Singh Ahluwalia Vs. Smt.Sheela Saxena and others reported in AIR 2001 Madhya Pradesh 250
17.On the other hand, the learned counsel for the respondents 1 to 3 has taken us through the entire order of the learned single Judge and submitted that the learned single Judge recorded findings of fact, after analysing the evidences, with cogent reasons, and that, therefore, there is no reason to interfere with the same. It was further submitted that the submissions of the learned counsel for the appellants have no merit, since the learned single Judge has categorically found that the testatrix instructed PW-4 to prepare the Will and that the testatrix was in good health and that she had good eyesight, when she executed the Will in the presence of the attesting witnesses and the Advocate, who prepared the Will. The learned counsel submitted that PW-4 Advocate came to the residence of the testatrix to receive instructions on the preparation of the Will and he prepared the Will based on the instructions of the testatrix. PW-4 also prepared the cancellation of General Power given by testatrix to one of her sons, in respect of some of the properties and the same was marked as Ex.P21, wherein the name of the junior of PW-4, Mr.Arockiaraj was mentioned as the person, who prepared Ex.P21. The learned counsel further had taken us through the only evidence of defendants and argued that there was nothing in the evidence in support of their version that the Will was a fabricated one. The learned counsel argued that the learned single Judge has correctly held that while there was no pleading by the defendants that the testatrix was not in the habit of putting her signature in the documents and that she used only to put her thumb impression, DW-1 deposed during cross-examination that the testatrix used only to put her thumb impression in the document. In these circumstances, the learned single Judge correctly disbelieved the testimony of DW-1 and held that his evidence was inconsistent. The learned counsel pointed out that though the first defendant was examined as PW-3 in support of the claim of the plaintiffs, the learned single Judge rejected the version of PW-3 as well. The learned counsel also pointed out that the learned single Judge relied on a decision of the Hon'ble Apex Court in Indu Bala Bose and others Vs. Maninder Chandra Bose and another reported in AIR 1982 SCC 133 in support of his findings. The learned counsel for the propounder, the first plaintiff, relied on the following judgments in support of his submissions:-
(i) Sridevi and others Vs. Jayaraja Shetty and others reported in (2005) 2 SCC 784
(ii) Meenakshiammal Vs. Chandrasekaran and another reported in (2005) 1 SCC 280
(iii) Daulat Ram and others Vs. Sodha and others reported in (2005) 1 SCC 40
(iv) C.Saradambal Vs. Padmavathi and 16 others reported in 2008 (6) CTC 324
18.We have considered the submissions made on either side.
19.The following points arise for consideration:-
(1) Whether the propounder has proved the due and valid execution of the Will?
(2) Whether the assertion of the appellants that the propounder/first plaintiff took an active role in execution of the Will is correct? If so, what is the effect of participation of propounder in the execution of the Will?
(3) Whether the learned Single Judge has committed any legal error in comparing the signatures of the testatrix in the Will by himself with the admitted signature, for granting probate?
(4) To what relief?
20. Point No.1 Whether the propounder has proved the due and valid execution of the Will?
a) The Will has to be proved like any other document. At least one of the attesting witnesses should be examined for proving the Will, as per Section 63 of the Indian Succession Act, read with Section 68 of the Indian Evidence Act. Further, the registration of the Will also establishes the genuineness of the Will. However, we will make it clear that mere registration of the Will is not sufficient to prove that the Will was duly executed. In the present appeal, Ex.P2 - Will, is a registered document and further PW-2, one of the attesting witnesses, was examined to prove the document. PW-2 categorically deposed that the testatrix signed the Will in his presence and also in the presence of another attesting witness viz., Mr.R.Kumar. It is also in evidence that the attesting witnesses signed in the presence of the testatrix at the same time. PW-2 also deposed that the testatrix was in good health at the time of execution of the Will and that she had good eye sight. In the chief examination, PW-2 has deposed as follows:-
"Executrix was in sound state of mind while signing the Will. The executrix had good eye sight at the time of executing the Will. It is not true to say that the executrix was blind at that time."
b)Though there was a lengthy cross-examination of PW-2, there was no question put to PW-2 that the testatrix was not in good health and she did not have good eye sight. There was no suggestion put to PW-2 challenging the aforesaid version of PW-2. Further, PW-2 the attesting witness is not related to both the parties and he is an independent witness and he is only a family friend of the testatrix.
c)Furthermore, PW-4 Advocate, who prepared the Will, deposed that one Mr.Jeeva Rathina Mudaliar, a former Court Officer in the Original side of this Court, took him to the house of the testatrix stating that his mother-in-law was an aged lady and that she wanted to execute a Will regarding her properties and also wanted to discuss with him regarding the Will. He also deposed that on instructions from the testatrix, he prepared the Will. After a week, he went to the house of the testatrix for the due execution of the Will. His junior Mr.Martin Arockiaraj also accompanied him to the house of the testatrix. PW-4 also deposed that the testatrix glanced through the Will and requested him to read it out to her. Accordingly, he read out the Will. He read out the entire contents of the Will and the testatrix heard and was fully satisfied that it was in accordance with her instructions. Thereafter, she put her signature in his presence and also in the presence of the attesting witnesses viz., Mr.R.Kumar and Mr.P.K.Sivanandam immediately. Thereafter, the attesting witnesses signed in the presence of the testatrix. PW-4 deposed during the chief examination as follows:-
"At the time of the execution of the Will, the said Jagadambal's hands were shaking and she was a very aged lady. Otherwise she was of sound health and of sharp mind."
d)According to PW-4, about a year before the execution of the Will, he prepared Ex-P21, revocation deed, revoking the general power given by the testatrix to one of her sons, relating to some of the properties. He also identified the signature found in page No.4 of Ex.P-21 as that of his junior Mr.Martin Arockiaraj.
e)Though the appellants pleaded in the written statement during trial that the Will is a fabricated one and it has been obtained by playing fraud and that the testatrix was totally blind and had lost the usage of her faculties, DW-1, the only witness examined on the side of the defendants, did not mince a word relating to the aforesaid averments. Before this Court also, the learned counsel for the appellants did not advance any argument on those lines. On the other hand, it was sought to argue that the daughters of the testatrix filed a suit for partition and that therefore, probate could not have been granted and that the co-executor Mr.Ravikumar filed Ex.D5 describing the Will as a fabricated document and that therefore, probate should be declined.
f)In our view, those submissions have no merit. Firstly, no such pleading was made relating to filing of suit by the daughters, either in the suit or in the appeal grounds. Furthermore, the copy of the plaint was also not produced. In any event that could not be put against the propounder seeking probate. We have perused Ex-D5, the affidavit said to have sworn in by Mr.Ravikumar, the co-executor. Mr.Ravikumar died during the trial. He was not examined to prove Ex.D5. Furthermore, the person before whom Mr.Ravikumar said to have sworn the affidavit, was also not examined. In the affidavit, it is simply stated that the testatrix was not in sound mind and she was in ill-health and she did not have eye sight when the Will was executed. It is also stated that the testatrix used to put her thumb impression and that therefore, she could not have signed. The contents therein were not proved by examining any witness. As stated already, Ex.D5 was not proved in the manner known to law. More importantly, even DW-1 did not depose that the testatrix was not in good health and that the testatrix did not have proper eye sight, when the Will was executed. Hence, the submissions made by the learned counsel for the appellants deserve to be rejected.
g)The evidence of PW-2, PW-4 and PW-1 make it clear that the propounder discharged his initial burden of proving the Will. Hence, we could not find any infirmity in the finding of the learned single Judge that the execution of Ex.P2 Will was duly proved. We fully agree with the findings of the learned single Judge in this regard and the relevant passage in para 19 of the judgment in T.O.S.No.9 of 1991 is extracted here-under:-
"19.....As stated above, apart from PW-1 one of the propounders, PW-2 an attesting witness and PW-4 an advocate who prepared and who was present at the time of execution of the Will have clearly spoken to the fact that she was in a good and disposing state of mind and she would have good eye sight also. Except the assertion of the contesting defendants, that she was not possessed of good health, faculty, eye sight and disposing state of mind, no material or proof is available in the whole evidence adduced before this Court."
21.We have perused the judgments relied on by the learned counsel for the appellants. In fact, those judgments are far from helping the appellants and are in favour of the propounder.
i) In Dinesh Chandra Mitra's case (cited supra) the testatrix had no issues. The testatrix executed an earlier Will, wherein the propounder was not given any benefit and the objector was given the benefit in the earlier Will. The District Court found on facts that the testatrix was not in good and sound health, at the time of execution of the Will and she did not have the requisite mental capacity to dispose of her property. In those circumstances, the High Court of Assam and and Nagaland confirmed the order of the District Judge, refusing to grant probate. Thus, this case is of no help to appellants.
ii) The judgment in Kanthi Ram Bora's case (cited supra) is also of no help to the appellants. In this case, the testator was the uncle of the propounder of the Will. The earlier probate case was dismissed. The Will was prepared by a document writer and the attesting witnesses were also document writers. None of the attesting witnesses were examined. Hence, the District Court rejected the application seeking probate. The same was upheld by the High Court of Gauhati.
iii) In Suresh Chandra Bal's case (cited supra) relied on by the learned counsel for the appellants, the testator had no issues. There were Civil Suits filed by the testator against the propounder during his life time. The case of the objector was that the testator suffered due to long illness and he had loss of power of understanding and he had completely imbecile and he had no testamental capacity. Medical evidence was let in and the same was believed. We are not able to understand as to how this judgment could render any assistance to the appellants.
(iv) In Anath Nath Das's case (cited supra) relied on by the learned counsel for the appellants, the testatrix had two wives. The first wife had pre-deceased him. Three sons and one daughter born through the first wife was not given any benefit under the alleged Will. It was held as unnatural, improbable and unfair. Furthermore, the attesting witness deposed that the testator had no testamentary capacity. Yet another suspicious circumstance that weighed with the Court was that though the testator was admittedly a literate person, the Will was not signed by him and left thumb impression was put on the Will. In those circumstances, the probate was rejected. In fact, the following passage in para 4 of the judgment supports the case of the propounder:-
"4.It has been the consistent view of the courts that as 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. But there is one important feature which distinguishes will 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 a solmnity in the decision of the question as to whether the document propounded is proved to be last will and testament of the departed testator. Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's 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 onous on the propounder can be taken to be discharged on proof of the essential facts."
(v) In the judgment in Mrs.Sumangala T.Pai's case (cited supra), relied on by the learned counsel for the appellants, it was held that the Will was an unnatural one. The testatrix left very valuable properties at Ernakulam. More than 5 acres of land were left by the testatrix. The testatrix left behind her two daughters, three sons and her husband. One of the daughters who questioned the Will was given only 10 cents in the Will. Thus, this case also does not render any assistance to the appellants.
22.On the other hand, the judgments relied on by the learned counsel for the propounder, are directly applicable to the facts of this case. Those are:-
(i) The judgment of the Honourable Apex Court in Sridevi and others Vs. Jayaraja Shetty and others reported in (2005) 2 SCC 784,
(ii) The judgment of the Honourable Apex Court in Meenakshiammal Vs. Chandrasekaran and another reported in (2005) 1 SCC 280
(iii) The judgment of the Honourable Apex Court in Daulat Ram and others Vs. Sodha and others reported in (2005) 1 SCC 40
(iv) A Division Bench Judgment of this Court in C.Saradambal Vs. Padmavathi and 16 others reported in 2008 (6) CTC 324 The relevant passages in those judgments are extracted here-under:-
(i) Sridevi and others Vs. Jayaraja Shetty and others reported in (2005) 2 SCC 784.
"14......The propounder of the Will has to show that the Will was signed by the testator; that he was at the relevant time in sound disposing sate of mind; that he understood the nature and effect of dispositions and had put his signatures to the testament of his own free will and that he had signed it in the presence of the two witnesses who attested in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged."
The said judgment is directly on the point.
(ii) Meenakshiammal Vs. Chandrasekaran and another reported in (2005) 1 SCC 280.
"20.In the case of Ryali Kameswara Rao v. Bendapudi Suryaprakasarao 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."
(iii) Daulat Ram and others Vs. Sodha and others reported in (2005) 1 SCC 40.
"13....The burden to prove that the Will dated 08.05.1983 executed by Prati in favour of his daughter was forged or was obtained by undue influence or by playing a fraud was on the appellants which they have failed to discharge. No evidence was led by them on either of these points."
(iv) C.Saradambal Vs. Padmavathi and 16 others reported in 2008 (6) CTC 324.
"7..The above provision would clearly show that it is enough if one attesting witness has been called for the purpose of proving the execution of a document. Admittedly, in this case, one of the attestors to Ex.P-1, Will, namely, Varadan, has been examined as PW-2 who, in his evidence, has deposed that the Testator, at the time of execution of the Will, was in a sound and disposing state of mind and he and the other attesting witness Dakshinamurthy saw the attestor executing the Will. Unfortunately, the other attesting witness, namely, Dakshinamurthy was not alive to be examined, to corroborate the genuineness of the Will. Equally, since the genuineness of the Will has been proved by the evidence of PW-2, it is not necessary to call the other attestor even if he is alive. Examination of the other attesting witness shall be required only if one attesting witness, examined to prove the Will, fails to prove the due execution of the Will. As already stated, in this case, the Will has been duly proved by the examination of PW-2."
23.Hence, we hold that the propounder proved that the Will was duly executed. Point No.1 is answered accordingly.
24.Point No.2:-
Whether the assertion of the appellants that the propounder/first plaintiff took an active role in execution of the Will is correct? If so, what is the effect of participation of propounder in the execution of the Will?
a) The appellants sought to argue that the propounder took an active role and therefore probate could not have been issued. In our view, there is no evidence that the propounder took an active role. In fact, even if the propounder took an active role, that could not be cited against the propounder, if he is not a beneficiary, excluding the other legal-heirs. That is, unless it is shown that the propounder is a sole beneficiary or derives substantial benefits in-contrast to others, then only the taking part of the propounder in the due execution of the Will would be put against the propounder as a suspicious circumstance. In this case, admittedly, as stated above, it cannot be said that the propounder took an active role. It is relevant that the only witness DW-1 examined on the side of the defendants, not even minced a word that the propounder took an active role in the execution of the Will. In fact, as per Ex.P2 Will, there are two executors. But one of the executors relinquished his right to be an executor. Hence, we find no substance in the submissions made by the learned counsel for the appellants that the learned single Judge ought not to have granted probate on the ground that the propounder took an active role in the execution of the Will.
25.The learned counsel for the appellants cited the following decisions in support of his contention that if the propounder played a prominent role in the execution of the Will, the propounder is not entitled for probate.
(i) Jagat Ram Vs. Mst. Mathi reported in AIR 1965 Himachal Pradesh 62
(ii) Susama Bala Devi and others Vs. Anath Nath Tarafdar and others reported in AIR 1976 Calcutta 377
(iii) Kishan Singh Ahluwalia Vs. Smt.Sheela Saxena and others reported in AIR 2001 Madhya Pradesh 250 We have perused those judgments. Those judgments are of no use to the appellants since in all those cases, the propounder is a beneficiary to the exclusion of others or took away substantial portion of the properties under the Will. Under those circumstances, the probate was declined. It is not the case on hand. Hence, these judgments do not lay down any proposition that if the propounder played an active role, application seeking probate should be rejected. On the other hand, the probate was declined on the ground that the propounder is a sole beneficiary to the exclusion of others or derived substantial benefits under the Will.
(i) In Jagat Ram's case (cited supra) the probate was refused by the District Court on the ground that the wife of the testator was totally excluded as a beneficiary. It was held on facts that the propounder failed to prove that the testator was in sound state of mind at the time of execution of the Will. Para 14 of the judgment is extracted here-under in this regard:-
"14...The learned District Judge was right in-holding that the appellants has filed to prove that the Will Ex.PW-1/A was executed by Jhantu when he was of a sound disposing mind and in rejecting their application. This finding is sufficient to dispose of the appeal and it is not necessary to go into the other points, raised."
The probate was not refused on the ground that the propounder took an active role in the execution of the Will.
(ii) In Susama Bala Devi's case (cited supra) the testator left behind him his wife, three sons and four daughters. It was found by the District Court that two sons and two daughters were given nothing in the Will. It is quite unnatural. Moreover, the propounder sought probate, after 15 years of the execution of the Will. On these reasons, the probate was rejected and the High Court of Calcutta confirmed the same. The relevant passage from para 26 of the judgment is extracted here-under:-
"26.....We have found many a suspicious circumstance not properly explained and a few suspicious circumstances explained more or less satisfactorily. Weighing the unexplained suspicious circumstances along with the explained suspicious circumstance and the evidence of execution of the Will we come to the conclusion that in this case the unexplained suspicious circumstances are too many in number and too weighty in character. Hence we find that the learned Court below was justified in refusing the grant of probate applied for by the propounders."
This judgment does not lay down that taking active part in execution of the Will itself is a suspicious circumstance.
(iii) In the judgment in Kishan Singh Ahluwalia (cited supra) also, the propounder got substantial benefit and thus his prominent role in execution of the Will was held against him. Furthermore, the following is the finding of the fact that was confirmed by the Division Bench of the Madhya Pradesh High Court. Para 4 of the judgment is extracted here-under:-
"4...After completing remaining formalities of recording evidence, the learned trial Court vide order dated 02.05.1995, came to the conclusion that there are suspicious circumstances in execution of alleged Will which the propounder Smt. Sheela Saxena has not been able to explain. The wrong mentioning of name of her daughter-in-law, her relationship with the petitioner Smt.Sheea Saxena, interpolation of the words in para 11 of the Will, the drafting of Will by mysterious Saxeena Advocate, the non-examination of Notary J.C.Katiyar, exclusion of Smt.Indira Talwar and Smt.Shakuntala Jhamb who admittedly took care of testatrix, are some of the circumstances which were not satisfactorily explained. It was also found that there is absence of attestation of witnesses of application as required under the provisions of Section 281 of Indian Succession Act."
26.We, therefore, hold that the appellants failed to establish that the propounder played an active role in the execution of the Will. Thus point No.2 is answered against the appellants.
27. Point No.3:-
Whether the learned Single Judge has committed any legal error in comparing the signatures of the testatrix in the Will by himself with the admitted signature, for granting probate?
a) The learned counsel for the appellants took serious objection for the learned single Judge comparing the signature to himself on the different pages of Ex.P2 - Will. At this juncture, it is relevant to point out that the appellants did not seek for an expert opinion. In our considered view, there is no bar under Section 73 of the Indian Evidence Act for the Court to compare the signatures and to come to the conclusion.
b)In fact, the only witness/DW1 examined on the side of the defendants, deposed inconsistently in this regard. While it is pleaded in the written statement that there is variation in the signatures, the appellants did not seek for an expert opinion.
c)On the other hand, the variation in the signatures was explained by the propounder by letting in satisfactory evidence. PW-2, the attesting witness, deposed as follows in the chief examination:-
"Executrix was in sound state of mind while signing the Will. The executrix had good eye sight at the time of executing the Will. It is not true to say that the executrix was blind at that time."
The aforesaid version of PW-2 was not challenged by the appellants during the cross-examination.
d) PW-4 deposed during the chief examination as follows:-
"At the time of the execution of the Will, the said Jagadambal's hands were shaking and she was a very aged lady. Otherwise she was of sound health and of sharp mind."
e)But DW-1 deposed inconsistently and the learned single Judge correctly described the evidence of DW-1 as falsity. DW-1 spoke as if the testatrix used to put only thumb impressions and she could not sign the documents. No such plea was taken in the written statement. It was established beyond doubt that the testatrix used to sign the documents and Ex.P21 was the document that could prove that the testatrix used to sign the documents. Further, yet another document also contains the signature of the testatrix. Hence, the learned single Judge correctly rejected the evidence of DW-1 as false.
28.The learned counsel for the appellants relied on the following judgments of the Honourable Apex Court in support of his contentions that the Court should not have compared the signatures in Ex.P2-Will.
(i) The State (Delhi Administration) Vs. Pali Ram reported in (1979) 2 SCC 158
(ii) B.Venkatamuni Vs. C.J.Ayodhya Ram Singh and others reported in (2006) 13 SCC 449
(iii) Thiruvengadam Pillai Vs. Navaneethammal and another reported in (2008) 4 SCC 530 In our view, the aforesaid judgments relied on by the learned counsel for the appellants, do not advance the case of the appellants.
(i) The State (Delhi Administration) Vs. Pali Ram reported in (1979) 2 SCC 158 does not arise out of a testament. In that case, a Magistrate sought for an expert opinion of a handwriting expert relating to the signature in dispute with the admitted signature. The same was questioned by the accused by way of revision before the District Court on the ground that the order of the Magistrate is beyond the scope of Section 73 of the Indian Evidence Act. The District Court rejected the revision. Thereafter, the accused took up the matter by way of further revision before the High Court. The High Court interfered with the order of the District Court and that of the Magistrate. When the matter came up before the Hon'ble Apex Court, the Apex Court held that there is nothing wrong for the Magistrate in issuing an order seeking expert opinion. Section 73 of the Indian Evidence Act was also extracted in para 22 of the judgment. Para 22 of the judgment is extracted here-under:-
"Let us now compare it with Section 73 of the Indian Evidence Act, which runs as under:
In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.
The court may direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by such person...."
Para 25 of the judgment makes it clear that the Hon'ble Apex Court held that the Court also could compare the signature by itself. In fact, Section 73 of the Indian Evidence Act, do not contemplate seeking expert opinion, namely the handwriting expert. Para 25 of the judgment is extracted here-under:-
"A sample writing taken by the court under the second paragraph of Section 73, is, in substance and reality, the same thing as admitted writing within the purview of the first paragraph of Section 73, also. The first paragraph of the section, as already seen, provides for comparison of signature, writing, etc. purporting to have been written by a person with others admitted or proved to the satisfaction of the court to have been written by the same person. But it does not specifically say by whom such comparison may be made. Construed in the light of the English Law on the subject, which is the legislative source of this provision, it is clear that such comparison may be made by a handwriting expert (Section 45) or by one familiar with the handwriting of the person concerned (Section 47) or by the court. The two paragraphs of the Section are not mutually exclusive. They are complementary to each other."
The judgment does not lay down that the Court shall not compare the signature in a document.
(ii) The judgment in B.Venkatamuni Vs. C.J.Ayodhya Ram Singh and others reported in (2006) 13 SCC 449, relates to the alleged execution of the Will by one Akkayamma to one of the sons of his paramour. The District Court refused to grant probate on the ground that there were in existence as many as 9 suspicious circumstances surrounding the execution of the Will and the will could not have been executed by the said Akkayamma. When the matter was taken before the learned single Judge of the High Court, the learned single Judge added three more suspicious circumstances in arriving at a finding that the execution of the said Will was not proved. However, the Division Bench of the High Court, reversed the finding of fact recorded by the District Court and the learned single Judge. The Hon'ble Apex Court restored the findings of the trial Court.
We failed to understand as to how this judgment could help the appellants in support of their proposition that the learned single Judge ought not to have compared the signature by himself.
(iii) The other judgment relied on by the learned counsel for the appellants is Thiruvengadam Pillai Vs. Navaneethammal and another reported in (2008) 4 SCC 530. The said judgment does not relate to probate of Will. The plaintiff, the appellant before the Hon'ble Supreme Court, alleged that the first defendant agreed to sell the suit property to him under an agreement of sale on consideration. It was also alleged that possession of the suit property was delivered to him under the said agreement. He issued a notice calling upon the first defendant to receive the balance amount and to execute the sale deed. The first defendant denied the very agreement itself. Thereafter, the appellant before the Apex Court, filed a suit for specific performance. In the mean time, the first defendant sold the property in favour of the second defendant. In these circumstances, the trial Court dismissed the suit and held that the agreement of sale put-forth by the plaintiff/appellant was false. But, the first appellate Court allowed the plaintiff/appellant's appeal by comparing the signature in the agreement of sale with the admitted thumb impression in the sale deed executed by the first defendant. The matter was taken by way of second appeal to this Court. This Court allowed the second appeal and dismissed the suit. This Court held that the thumb impression in the sale agreement was very pale and not clear and the first appellate Court could not by a casual comparison of the disputed thumb impression in the agreement with the admitted thumb impression in the sale deed, record a finding that there were no marked differences in the thumb impressions in the two documents. When the matter was taken to the Hon'ble Apex Court, the Apex Court found on facts that the thumb mark in the alleged agreement of sale was pale and not clear. This was the finding of fact. Hence, this judgment is also of no avail to the appellants.
29.We, therefore, hold that there is nothing wrong for the Court to compare the signatures in Ex.P2-Will and to come to its conclusion as to the genuineness of the Will. Point No.3 is answered accordingly.
30. Point No.4:-
To what relief?
In the result, the appeal fails and the same is dismissed. No costs.
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