Bangalore District Court
Mrs.Jennifer Susan Andrews vs Dr.(Miss) Gladys Soumitra on 11 January, 2022
IN THE COURT OF THE IV ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU
(CCH-21)
Present:
Sri.D.S.Vijaya Kumar, B.Sc., LL.B.,
XXVI Addl. City Civil & Sessions Judge & C/civic ACC &
S.J. Bengaluru
Dated this the 11th day of January, 2022
O.S.No.25227/2009
Plaintiffs:- 1. Mrs.Jennifer Susan Andrews
Aged about 59 years,
W/o Geoffrey Andrews,
Presently Residing at No.21,
McLanahan Road, Windsor
Gardens, Adelaide 5087, South
Australia, Camping in Bangalore
care of Barbara Papili, No.61,
Wellington Street, Richmond
Town, Bengaluru 560 025.
2. Mrs. Inez May Dunham, Since
deceased represented by her
Legal heirs :-
2(a) Mr.Rodnye Michael,
Aged about 77 years,
S/o Late Oswald Edward
Dunham, Presently Residing at
No.21, McLanahan Road,
Windsor Gardens, Adelaide
2
OS No.25227/2009
5087, South Australia.
2(b) Mrs.Jennifer Susan
Andrews,Aged about 69 years,
W/o Geoffrey Andrews, Presently
Residing at No.21, McLanahan
Road, Windsor Gardens,
Adelaide 5087, South Australia,
2(c) Karen Tonkin,
Adult, D/o Late Chiristine
Elizabeth May, 19, Kilmeston
Court, Maddington, Western
Australia.
2(d) Alison Torre,
Adult, D/o Late Christine
Elizabeth May, 8 Osterley
Terrace, Darch, Western
Australia.
[By M/s.Rego & Rego-Adv.]
Vs.
Defendants:- 1. Dr.(Miss) Gladys Soumitra,
Aged about 64 years,
D/o Late Dr.D.Devaputra,
Presently Residing at No.5/8,
'Hussainabad Apartments',
Longford Road, Longford Town,
Bengaluru 560025.
2. Mr.John Charles Karkadia,
Aged about 70 years,
3
OS No.25227/2009
Presently Residing at No.9,
Curley Street, Richmond Town,
Bengaluru - 560 025.
3. Mr. Ravikiran David,
Aged about 37 years,
Son of Late David Jambaiah,
Presently Residing at No.934,
Banashankari 1st Stage, II Block,
Bengaluru 560 050.
4. Mrs.Alice Mascarenhas,
Aged about 50 years,
W/o Richard Mascarenhas,
Presently Residing at No.203,
Skyline Apartments, Langford
Road, Bengaluru 560 027.
5. Ms.Sharon Yvonne Mascarenhas,
Aged about 27 years, D/o
Richard Mascarenhas, Presently
Residing at No.203, Skyline
Apartments, Langford Road,
Bengaluru-27.
6. Mr.Rohan Mascarenhas,
Aged about 22 years,
S/o Richard Mascarenhas,
Presently Residing at No.203,
Skyline Apartments, Langford
Road, Bengaluru 560 027.
7. M/s.Standard Chartered Bank,
A Banking Institution transacting
Business at Raheja Towers,
No.26, Mahatma Gandhi Road,
4
OS No.25227/2009
Bengaluru 560 001.
8. Bank of India,
A Banking Institution transacting
Business at Prestige Kada, 71,
Richmond Road, Bengaluru-01,
Represented herein by its
Present Chief Manager-
Mr. N.Chandrashekar
[D.1 & 3: Ex-parte; D.2-By
Sri.GLV-Adv; D.4 to 6: By Sri.TSI-
Adv; D.7: By Sri.BCA-Adv; D.8:
By Sri.HRK-Adv]
Date of Institution of suit: 06.02.2009
Nature of the Suit (Suit for Pronote, Suit for
Declaration and Possession, Suit for Declaration
Injunction, etc.):
Date of Commencement of recording of
evidence: 11.02.2011
Date on which the Judgment was 11.01.2022
pronounced:
Total Duration:
Years Months Days
12 11 05
(D.S.VIJAYA KUMAR)
XXVI Addl. City Civil Judge
& C/c IV ACC & SJ.,Mayo Hall,
Bengaluru.
5
OS No.25227/2009
JUDGMENT
Plaintiffs 1 and 2 since deceased by her Legal heirs earlier filed P & SC against the Defendants 1 to 8 seeking Probate of the Will dtd. 29.01.1998 of Late Ronald James Ringrow. Subsequently as per Order dtd.
06.02.2009 the said Petition has been permitted to converted into a suit for declaration and issuance of Probate of the above Will.
2. Brief facts of the case of the Plaintiffs in plaint are as below:-
Plaintiffs are Australian Nationals of Indian origin and permanent residents of the City of Adelaide, South Australia and they are housewives. The first plaintiff is the biological niece of one Ronald James Ringrow S/o Edward Ringrow who was a resident of New No.5, Old No.10, Eagles Street, Langford Town, Bengaluru and 6 OS No.25227/2009 the 2nd plaintiff is his biological sister and sibling. The said Ronald James Ringrow died on 25.10.2004 in the above premises. Late Ronald James Ringrow was an Indian National and a Protestant Christian of the Methodist Fellowship by religious denomination and devolution of his Estate is governed by the provisions of the Indian Succession Act, 1925. That the writing in the certified copy of what is believed and asserted to be the Last Will and Testament dated 20.01.1998 of the deceased Ronald James Ringrow and the same was made and executed by him whilst he was of sound mind, body, memory and understanding. The Original of Exhibit "C" is not traceable despite due and diligent search having been made for the same. The aforesaid Will was registered in the office of the Sub Registrar of Assurances, Shivajinagar, Bangalore, as document No. 352/1997-98 in Book III, Volume 131, Page 231 to 220.7
OS No.25227/2009 The Signatures appearing on Exhibit "D" which correlate to those on Exhibit "C" appear to be those of the Late Ronald James Ringrow and those of the witnesses who attested the same. The said Will was made and executed by Late Ronald James Ringrow on 29.1.1998 and attested by the witnesses thereto in accordance with the provisions of the Indian Succession Act, 1925. The Original true counterpart/ copy of the Will of the deceased is deposited in Court this day in a sealed cover for safe custody. The First Plaintiff is the same person as Jennifer Susan Andrews referred to in the said Will of the deceased Ronald James Ringrow. That the deceased was a widower and did not leave biological issue or lineal descendants. He was an educationists and retired from service in the capacity of Vice Principal, Bishop's School, Pune. That the Plaintiffs have truly set forth in Annexure "A" to 8 OS No.25227/2009 the Affidavit or Valuation barbed to try the First Plaintiff and filed herewith all the property and credits which the deceased died possessed of or was entitled to at the time of his death which have or are likely to come to their hands and so far as the Plaintiffs have been able to uncertain or aware there are no property and credits other than what are specified in Annexure "A" as aforesaid. That the said assets exclusive of what the deceased may have been possessed of or entitled to as a Trustee of another and not beneficially or with power to confirm a beneficial interest and also exclusive of the items mentioned in the said Annexure "B" but inclusive of all rents, interests and dividends and increased value since the date of his death are under the valuation of Rs. 1,08,01,141.81 ps. That no application has been made to any District Court or Delegate or to any High Court for grant of Probate of 9 OS No.25227/2009 any Will of the said deceased or Letters of Administration with or without the Will annexed to his property and credits. The Plaintiffs have become aware that vide a deed of Revocation dated 6.2.2001 registered as document No.301/2001-2002 in Book III, Volume 156, Pages 247 to 248 in the office of the Sub Registrar of Assurances, Shivajinagar, Bangalore the deceased Ronald James Ringrow allegedly revoked absolutely and forever his Last Will and Testament at Exhibit "C" and "D". That to the best of the knowledge information and belief of the plaintiffs the aforesaid Deed of Revocation was never executed by late Ronald James Ringrow and the same is a fraud, coercion, undue influence and such other importunity which took away the free agency of the said deceased Executant and was thus void ab initio and not justiciable and did not thus in law or in fact revoke 10 OS No.25227/2009 and annul his last Will and Testament dated 29.01.1998. Further at the relevant time Ronald James Ringrow was not of sound and disposing state of mind and could thus never have executed and registered the same suo moto. The execution and registration of the aforesaid Deed of Revocation is shrouded by suspicious circumstances. Hence, the aforesaid deed of revocation is void ab initio and not justiciable. The entire disposable Estate of the deceased Ronald James Ringrow would devolve on his sole surviving heir and next kin the Second Plaintiff herein and hence, Second Plaintiff would thus in law and in fact be entitled to a grant of representation to the Estate of the deceased Ronald James Ringrow. The Second Plaintiff would be entitled to the grant of Letters of Administration to the Estate of the said deceased Ronald James Ringrow. The Second 11 OS No.25227/2009 Plaintiff has thus joined the First Plaintiff in the institution of the above Petition as she would be solely entitled to grant of Letters of Administration to the Estate of the deceased Ronald James Ringrow of which she is the universal and sole legatee in the alternative. That since the latter part of the year 1999 Ronald James Ringrow started deteriorating in mind and body. He was afflicted by a malignancy in his prostate gland and suffered from repeated urinary infections and problems. He had developed an enlarged libido and become amorously disposed towards women. Having suffered the removal of his right lung the deceased had extreme difficulty in breathing and suffered from umpteen respiratory problems, too. He also suffered from high blood pressure and mental depression. He felt insecure and had developed a strange fear that he would be 12 OS No.25227/2009 disposed of his movable and immovable properties. He desired police protection as a result of the same. He became duly suspicious of his friends and soon came under the influence on the Fourth Defendant in the above case and the said Fourth Defendant was a frequent visitor of the deceased and she soon began to dominate him and gradually by this undue influence that she wielded over him appropriated his movable and immovable properties for her benefit and that of the members of her family. She ensured that the deceased remained isolated and thus precluded from communicating with those close to him. She misrepresented facts and circumstances to the Plaintiffs and their relatives and gradually assumed total control of the assets of the deceased. She has illegally and for inadequate considerations caused conveyance of valuable immovable assets of the 13 OS No.25227/2009 deceased and the Second Plaintiff situated at New No. 5, Old No. 10, Eagles Street, Langford Town, Bangalore to her daughter and herself. The deeds of sale whereby the properties referred to herein supra were conveyed by the Fourth Defendant to her daughter the Fifth Defendant and himself. The Fourth Defendant has inter meddled with the Estate of the deceased and has failed to render an account of her dealings in respect thereof despite having been called upon to do so. She has assumed complete control of the major part of the assets of the deceased and has also sought to make payments on behalf of the Estate of the deceased which she was not authorized in law to do.
She has also thereby made the Sixth Defendant an illegal beneficiary of some of the financial assets of the deceased. The said Fourth Defendant has monitored the health of the deceased and has been solely 14 OS No.25227/2009 responsible for the "medical treatment which was accorded to the deceased which the Plaintiffs now learn are of a highly suspicious and dubious nature. The bonafides of the alleged physician of the deceased and the Fourth Defendant and her abettor are called into question in this regard.
Plaintiffs have reason to believe that the demise of the late Ronald James Ringrow was not wholly occasioned by natural circumstances and causes. The complicity of the Defendants 1, 2, 3 and 5 and one Faustin D'Silva in the illegal acts of commission and omission of the Fourth Defendant is a dominant factor in context of the last days of the deceased on Earth and his Estate. The plaintiffs have reason to believe that via criminal conspiracy hatched by the fourth defendant the estate of the late Ronald James Ringrow and 2nd plaintiff have been defrauded and 15 OS No.25227/2009 unlawful losses caused to them. In these circumstances plaintiffs have filed this suit seeking probate of the Will dtd. 29.01.1998 and for issuance of Letters of Administration to the Estate of the deceased Ronald James Ringrow in favour of Second Plaintiff.
3. After service of Notice/suit summons, Defendants 2, 4 to 8 appeared through their respective counsels and Defend ants 1 and 3 were placed Ex-parte. Defendants 4 to 6 have filed written statement and contested the suit. Defendants 7 and 8 have not filed written statement.
4. Brief facts of the case of the Defendant Nos. 4 to 6 in the written statement are as below:-
The suit is not maintainable and liable to be dismissed. These defendants admit the relationship of plaintiffs. It is stated that the said Ronald James 16 OS No.25227/2009 Ringrow sold the said property on 19.10.2000 in favour of defendants 4 & 5 by executing two Sale Deeds, which are registered in the office of the Sub Registrar, Shivajinagar, Bengaluru. They admit the said Ronald James Ringrow died on 25.10.2004. After the above said sale deeds Ronald James Ringrow put the defendants 4 and 5 in possession of the property and thereby he ceased to be permanent resident of the said property. Consequent upon executing the Regd.
Sale Deeds, it became the property of defendants 4 and 5 as they have purchased the said property from the said Ronald James Ringrow for value that too by raising Bank loan. These defendants deny that Ronald James Ringrow died by leaving behind movable and immovable properties in the City of Bengaluru and more fully described in the schedule-A in the plaint.
Said Ronald James Ringrow did not leave behind
17
OS No.25227/2009
him the said property bearing No.5 Eagle
Street, Langford Town, Bengaluru at the time of his death, as he already executed two sale deeds dtd.
19.10.2000 in favour of defendants 4 and 5. But, the plaintiffs with a sole intention to grab the property of defendants 4 and 5 have approached the court with this frivolous suit. Hence, the plaintiffs have no right to seek Probate or for declaration of the Will dtd.
29.01.1998, because the deceased Ronald James Ringrow revoked the Will dtd. 29.01.1998 by executing a document on 6.2.2002, but the plaintiffs have approached this court for Letter of Administration in respect of non existing Will. Said Ronald James Ringrow on 5.2.2002 prepared a Deed of Cancellation of the Will dtd. 29.01.1998 in his own handwriting and on the following day he got it typed on the stamp paper and presented the same before the Sub 18 OS No.25227/2009 Registrar and the Sub Registrar accepted the same and registered the same and thereby the Regd. Will dtd. 29.01.1998 stood cancelled/revoked on 6.2.2002.
In that view, Ronald James Ringrow did not die leaving behind any Will. That, as regards item nos.1 of A schedule property is concerned, it is stated that when Ronald James Ringrow died on 25.10.2004 he did not have any cash on hand as regards at the Bank is concerned in respect of all his Bank Accounts, defendant No.4 is named as a Joint Account Holder. As one could see he did not leave behind him any household goods, wearing apparels, books plates, jewels, etc. When he was alive he had instructed his maid servants to take away all the household goods, wearing apparels, books, etc. on his death and they had taken all those things after his death. As such the claim of the plaintiffs under item no.1 of A schedule 19 OS No.25227/2009 property does not survive. As regards item no.3 of Suit A schedule property, deceased Ronald James Ringrow sold the entire house property for a sum of Rs.45,00,000/- on 19.10.2000 and paid 1/3rd of the sale proceeds to the plaintiff no.2 i.e., a sum of Rs.15,00,000/- and in the remaining Rs.30,00,000/-
part of the amount he had spent for himself, part of the amount was spent by him for his day today needs and remaining amount was concerned he had kept the same in a Bank and for the Bank Account he has named the defendant No.4 as a Joint Account holder and hence the plaintiffs have not right over it. As regards B schedule property since Ronald James Ringrow during his lifetime deposited Rs.10,000/- with the Methodist Church and after his death, the Pastor of the said Methodist Church performed the last rites of Ronald James Ringrow out of the said amount. This 20 OS No.25227/2009 clearly shows the plaintiffs were not properly acquainted with the deceased Ronald James Ringrow and that is why they have made an incorrect statement. The figure stated by the plaintiffs in respect of the house property is imaginary and without any legal foundation. These defendants deny the allegation of the plaintiff that the Revocation deed executed by the deceased Ronald James Ringrow was a product of fraud, coercion, undue influence. They also deny that on the date of Revocation of Will Ronald James Ringrow was not of sound and disposing state of mind and lacked testamentary capacity as such he could never have executed and registered the said Deed of Revocation suo moto. That on 8.9.2000 the 2 nd plaintiff authorized the deceased Ronald James Ringrow to dispose of her share in item no.1 of the schedule A property by executing a General Power of 21 OS No.25227/2009 Attorney. That apart Ronald James Ringrow on 2.2.2002 closed the Joint Account No.11880 opened by him in the name of himself, Dr.Clady's Sumitra and John Charles Karkadia at Bank of India. In view of the said fact Will dtd. 29.1.1998 in respect of item no.3 of the suit 'A' property has become inoperative and lost its essence. As such it was necessitated for Ronald James Ringrow to revoke the Will dtd. 29.01.1998. As such there is no point in finding fault with the Revocation deed dtd. 6.2.2002. But, the plaintiffs with a sole intention to mislead the court have taken a contention that the defendants 1 to 7 are behind the Revocation of the Will dtd. 29.1.1998 on 6.2.2002, but absolutely there is no truth in it. Deceased Ronald James Ringrow sold the property in favour of defendants 4 and 5 under two different Sale Deed dtd.19.10.2000 and as regards the Bank Accounts are 22 OS No.25227/2009 concerned, on 28.1.2002 Ronald James Ringrow instructed his Bankers to enter the name of defendant No.4 as a Joint Account Holder along with his name after canceling the nomination made by him earlier. In the light of the said fact, on the death of Ronald James Ringrow, defendant No.4 is entitled to operate the bank accounts being a joint account holder, either or survivor. In that view of the matter, deceased Ronald James Ringrow did not die leaving behind any movable or immovable property and hence the plaintiffs are not entitled for issuance of Letter of Administration of the Will dtd. 29.1.1998. These defendants deny the ailment of the deceased Ronald James Ringrow and state that the plaintiffs in order to suit their convenience have made such an allegation without any legal foundation. It is stated that as far as the defendants are concerned they knew that about 23 OS No.25227/2009 50 years ago a part of his right lung was removed and he was not suffering from any respiratory problems. It is further stated that the deceased Ronald James Ringrow was not living alone as contended by the plaintiffs, but he was living with two maid servants namely Ruth and Rathna. As such insecurity, strange fear of dispossession over his properties are all concoction by the plaintiffs for presenting this suit. It is stated that the 4th defendant came to know the deceased Ronald James Ringrow only in the year 2000 that too little earlier to the purchase of the item no.3 of the suit 'A' schedule property. The 4 th defendant after paying full value of item no.3 of the schedule A property i.e., house property bearing NO.5 Eagle Street, Langford Town, Bengaluru has purchased the same from him. Perhaps before selling the said property in favour of defendants 4 and 5, deceased 24 OS No.25227/2009 Ronald James Ringrow has taken consent from the plaintiffs and paid the sale consideration amount to the plaintiff no.2 as per the bank statement. The allegation that defendant no.4 has monitored the health of the deceased and she has been solely responsible for the medical treatment which was accorded to the deceased is not correct. It is stated that defendant No.4 did not monitor his health and she was in no way responsible for his medical treatment. In morality she visited him and inquired about his health when he was hospitalized. On one or two occasions when he was ill, 4 th defendant must have admitted him to the Hospital on humanitarian grounds since there was no body to look after him except his maid servants. It is stated that the plaintiffs have made allegations without any basis. Deceased Ronald James Ringrow had no love and affection 25 OS No.25227/2009 towards the plaintiffs and that was one of the reasons made him to revoke the will dtd. 29.1.1998 on 6.2.2002. Deceased Ronald James Ringrow was an Educated person having very good health till his death and he was conscious about his dealings and when he was mentally sound he revoked the Will dtd. 29.1.1998 on 6.2.2002. He was also socially mingling with a lot of people. He was personally operating his bank accounts by going physically to the Bank. He was not depending on anybody till his death. After the Will was effected by the said Ronald James Ringrow, the plaintiff no.2 took her due share from him. As the said Ronald James Ringrow died without leaving behind him either movable or immovable properties to be succeeded by any one and in the absence of same, Plaintiffs have no right under law to seek for a letter of administration in respect of the revoked Will. Hence the suit is not 26 OS No.25227/2009 maintainable and liable to be dismissed. On these grounds, defendants 4 to 6 have sought for dismissing the suit with costs.
5. In support of the Plaintiffs case, Power of Attorney Holder of the Plaintiffs got examined as P.W.1 and got marked 13 documents as Exs.P.1 to Ex.P.13.
On behalf of defendants, Defendant No.4 got examined as DW.1 and Ex.D.1 to D.9 has been marked.
6. Heard arguments. Learned counsel for plaintif has also filed written arguments.
7. In the written arguments of the Learned counsel for plaintifs argued as under:-
The Learned counsel for plaintiffs argues that this suit is filed for the relief of declaration and probate of the Will dated 27 OS No.25227/2009 29.1.1998 executed by one Ronald James Ringrow whilst he was of sound and disposing state of mind, body, memory and understanding. Said Ronald James Ringrow died on 25.10.2004 at Bengaluru. For several years prior to his death Ronald James Ringrow was resident with his parents, Edward John Ringrow (Senior) and Elizabeth May Ringrow, elder brother Edward John Ringrow (Junior), younger brother Ronald James Ringrow and only sister Inez May Dunham (nee) Ringrow at the premises bearing Old No.10 and New No.5, Eagle Street, Langford Town, Bengaluru. The said property was acquired by the biological parents of Ronald James Ringrow on 6/6/1946 under a Deed of Sale and was in their peaceful possession, occupation and enjoyment till their respective deaths and when thereafter a portion thereof came to be alienated in favour of a third person by name Elizabeth John and the remaining extent allegedly to the Defendants Nos.4 and 5 herein by two of their above named children. Edward John Ringrow,(Senior), the biological father of Ronald James Ringrow expired in Bangalore on 13/6/1966 and his spouse Elizabeth May Ringrow appears to have inherited the share of her aforesaid deceased spouse viz. Edward John Ringrow,(Senior,) though the basis on which the same was inherited by her is not forthcoming in the records of the above case. She was however regarded as the sole and absolute owner of the aforesaid property post demise of her husband viz. Edward John Ringrow, 28 OS No.25227/2009 (Senior). Elizabeth May Ringrow made and executed her last Will and Testament on 22/8/1971 and further to her demise on 22/12/1975 the same came to be probated in P & S.C. No.6/1979 on the file of the Hon'ble District Judge, Bangalore City wherein very strangely in the light of the Sale Deeds in favour of the Defendants 4 and 5 produced in the above case, indicated to be by Order dated 31/5/1975, though in reality the grant of representation was actually made in respect thereof on 31/5/1979. It would appear that under the Will dated 22/08/1971 of Elizabeth May Ringrow, the property bearing Old No.10 and New No.5, Eagle Street, Langford Town, Bengaluru- 560 025 came to be bequeathed in equal shares to the following persons viz:- Edward James Ringrow, (Junior), Ronald James Ringrow, and Inez May Dunham (nee) Ringrow, by the late Elizabeth May Ringrow, who were none other than her biological children. Edward John Ringrow,(Junior), had apparently moved to England. The said Edward John Ringrow did not have biological issue through Marie and upon return to India post her demise became resident in the immovable property referred to herein supra. He then married a lady by name Pansy who was the daughter of a person named Kenneth Nagle. He did not have biological issue through Pansy and apparently separated from her after some years and became resident in the aforesaid property. Pansy Ringrow (nee) Nagle expired several years ago and is not reckoned for in the above 29 OS No.25227/2009 case. Edward John Ringrow,(Junior), made and executed his last Will and Testament on 28/8/1978 and also executed a Codicil thereto under which aforesaid testamentary disposition he bequeathed his one third undivided share, right, title, interest and claim in Old No.10 and New No.5, Eagle Street, Langford Town, Bengaluru-560 025, solely, in favour of his sibling and younger brother Ronald James Ringrow and also predicated that in the event of the latter predeceasing him the said legacy would go to his biological sister Inez May Dunham (nee) Ringrow. The aforesaid Edward John Ringrow,(Junior), made similar dispositions vis a vis his movable assets. Aforesaid Edward John Ringrow, (Junior), expired on 17-8-1996. Inez May Dunham (nee) Ringrow the only sister of Edward John Ringrow (Junior) and Ronald James Ringrow further to her marriage to Oswald Edward Dunham migrated to Australia in 1961 and became resident there at premises bearing No.17/4, Gorge Road, Campbell Town, South Australia 5074. The aforesaid Inez May Dunham (nee) Ringrow expired on 27/6/2014 during the pendency of the proceedings in the above case. She was the Second Plaintiff herein and now represented therein by her heirs, next of kin and Legal Representatives. Ronald James Ringrow was an educationist and taught French in Baldwin Boys High School, Bangalore. He was also the Sports Master of the aforesaid School. He moved to Pune in or about the year 1958 and taught in the Bishop's School, Pune. When he 30 OS No.25227/2009 remitted service in Bishop's School, Pune in or about the year 1985 he was its Vice Principal. He, thereafter, undertook employment in Bangalore as a part time teacher in Baldwin Boys High School, Hosur Road, Bangalore. He retired from service therefrom in or about the year 1990. He expired in suspicious circumstances on 25l10/2004 having during his lifetime acquired movable and immovable assets by inheritance and succession which are particularized in his Last Wills and Testaments dated 29/1/1998 and the Affidavit of Valuation filed with the Main Petition (later denoted plaint in the above case), in P & S.C. No. 15022/2005 on the file of the Hon'ble IVth Additional City Civil and Sessions Judge, Court Hall No. 21, Mayo Hall, Bangalore. Ronald James Ringrow during his lifetime and in or about the year 1965 married a lady named Bonnie and she was known and called Bonnie Ringrow thereafter. Ronald James Ringrow who was appointed Vice Principal of Bishop School and functioning in Pune as such, further to his retirement therefrom in the year 1985 returned to Bangalore and became resident at premises bearing Old No.10 and New No.5, Eagle Street, Langford Town, Bengaluru-560 025 with his wife Bonnie. She did not have biological issue through Ronald James Ringrow and expired some years later. Further to the demise of his brother Edward John Ringrow,(Junior), and his spouse Bonnie, Ronald James Ringrow was the sole resident of premises bearing Old No.10 and New No.5, Eagle Street, 31 OS No.25227/2009 Langford Town, Bengaluru-560 025 though a portion of which as stated herein supra had been alienated in favour of one Elizabeth John. The aforesaid Ronald James Ringrow had during the last years of his life domestic aid and assistance of two women one known as Ruth and the other Rathnamma, respectively. These aforesaid domestic aides were absolutely devoted to late Ronald James Ringrow and cared for him very tenderly. They were greatly trusted by him and he was totally dependent on them for his day to day needs and extremely satisfied with the services that they jointly rendered to him.
The deceased Ronald James Ringrow had made provision for these women in his Last Wills and Testaments dated 29/1/1998. The Second Plaintiff Inez May Dunham (nee) Ringrow married Oswald Edward Dunham and had four children through him. Plaintiff submits with deep respect that Ronald James Ringrow was a deeply religious person and was a devout and ardent constituent of the Methodist Church located in Richmond Town close to his residence. He had a regular band of friends who he interacted with on a virtually daily basis. He had sought to involve these persons in almost every facet of his daily life and existence and was particularly close to a former student of his by name Mohammed Raza Shirazi who in later years rose to the rank of Wing Commander in the Indian Air Force and was decorated with the Shaurya Chakra Award for gallantry. Announced during the Republic Day Parade in the year 1968 32 OS No.25227/2009 the aforesaid Wg. Cdr. M.R Shirazi, SC VM, who is now rated as an Eminent Citizen of the State of Karnataka in the Karnataka Official Gazette was cited for gallantry in the Karnataka State Gazetteer at Page 198 thereof was hosted to Tea by His Excellency the then President of India Zakir Hussain in recognition and honour of his gallant deeds and achievements. The aforesaid award was made pursuant to Item No.28 - PRES/68 dated 26/1/1968 published in Section I - Gazetteer of India on 6/4/1968 and received by him during the Tea Session hosted in his honour referred to herein supra. The aforesaid Wg. Cdr. M.R Shirazi, SC VM, is the duly appointed Power of Attorney Holder of the Plaintiffs in the above case and is also the Plaintiffs' Witness No.1 in the above case (P.W No.1).
Learned counsel for plaintiffs further argued that on 29/1/1998 Ronald James Ringrow made and executed his last Will and Testament and the same was made and executed by him whilst he was of sound mind, body, memory and understanding, which was duly registered. The said Will was duly attested when executed and duly registered in the manner mandated in law. The said Will was made and executed in three sets all of which were duly made, executed and attested and thus in law and in fact constituted independent and distinct Wills made by the aforesaid Ronald James Ringrow notwithstanding the fact that only one of the three of them was 33 OS No.25227/2009 registered in the office of the Sub Registrar of Assurances, Shivajinagar, Bangalore on 29/1/1998. Registration of a Will is not a mandatory predication under the Indian Succession Act, 1925 or the Indian Registration Act, 1908. It is an optional safeguard. Since the latter part of the year 1999, Ronald James Ringrow gradually started deteriorating in mind and body, though his mind was still extremely sound, clear, alert, active and formidable in all respects. He was however afflicted by a malignancy in his prostate gland and suffered repeatedly from urinary infections and allied ailments and problems. He had also developed an enlarged libido as an immediate consequence of his prostrate affliction and this later resulted in him becoming amorously disposed towards young women, manifesting debilitation in his intrinsic testamentary capacity and the existence of a classical case for exercise of undue influence and other importunity which took away his free agency. Having suffered the removal of his right lung several years prior to the year 1999 Ronald James Ringrow suffered extreme difficulty in breathing and from umpteen other problems, too. He suffered from high blood pressure and mental depression. He felt insecure and had developed a strange fear that he would be dispossessed of his movable and immovable properties. He desired police protection as a result of the same and became unduly suspicious of his friends and soon came under the influence of the Fourth Defendant in the 34 OS No.25227/2009 above case who was introduced to him by a close friend of his by name B. Augustine, now deceased. The Fourth Defendant who was masquerading as a social worker attached to St. John's Medical College Hospital, Koramangala, Bangalore and thus became a frequent visitor in the home of the aforesaid Ronald James Ringrow and soon began to exercise undue influence over him taking advantage of his medical affliction of an enlarged libido occasioned by the enlarged prostate gland. She planted her uncle Faustin D'souza in the home of Ronald James Ringrow and began restricting visits of his close friends thereto. All these actions were undertaken by the Fourth Defendant without the immediate knowledge of the Plaintiffs and the other consanguine relatives of the deceased largely being his natural heirs and next of kin. The Fourth Defendant aided and abetted by Faustin D'souza and her children the Fifth and Sixth Defendants in the above case misrepresented facts and circumstances to Ronald James Ringrow and gradually assumed total control of his assets. The Fourth, Fifth and Sixth Defendant illegally and for inadequate consideration and by resort to fraud and subterfuge caused conveyance of the valuable immovable asset of Ronald James Ringrow and his sister Inez May Dunham (nee) Ringrow being premises bearing Old No.10 and New No.5, Eagle Street, Langford Town, Bengaluru-560 025 under two deeds of sale, the first being in favour of herself and the other in favour of her daughter the 35 OS No.25227/2009 Fifth Defendant in the above case. Certified copies of the said deeds are marked as Exhibits on behalf of the Plaintiffs as per Exhibit P-9 and P-10 in the above case. Having ensured complete appropriation of the only immovable asset of Ronald James Ringrow which incidentally was also partly owned by the First Plaintiff's mother i.e., the Second Plaintiff herein, the aforesaid Fourth Defendant now put into play the second part of the fraud that was conceived by her i.e. the cancellation/revocation of the Last Will and Testament of Ronald James Ringrow. The revocation of this Will would abrogate and/or curtail the legitimate claims of the beneficiaries thereunder and to be set at sought and would also enable her to appropriate the movable and financial assets of Ronald James Ringrow, fully and finally, for her sole use and benefit by resort to other legal gimmicks in this regard which will be indicated and highlighted hereinafter. A deed of Cancellation which was allegedly drawn on 5/2/2002 and finalized on stamp paper on 6/2/2002 was registered in the office of the Sub Registrar of Assurances, Shivajinagar, Bangalore. The aforesaid Cancellation Deed thus came to be registered, created and brought into existence, though, without the desired effect for the reasons stated hereinafter. The said Deed of Cancellation was, very strangely, drawn, finalized and registered by Ronald James Ringrow, allegedly by himself, suo motu and significantly, who all through his life had engaged 36 OS No.25227/2009 and utilised professional services of lawyers to undertake his official transactions and could not though have done so, allegedly by himself and on his own particularly when he was aged, in poor health and unable to move about freely. It is also a matter of fact that the Fourth Defendant ensured that some of the Bank Accounts of Ronald James Ringrow came to be regarded "Either or Survivor" with the Fourth Defendant a party thereto and in respect of which she ensured that she was able to collect all the monies standing to the credit of Ronald James Ringrow. Further, in respect of other accounts held by the deceased by deviously incorporating herself as the nominee thereto, she further ensured that the same could be appropriated by her solely and absolutely. The removal of the furniture and other movables of Ronald James Ringrow at the time of his demise was mere child's play to a person/s as diabolical as the Fourth Defendant herein and her children the Fifth and Sixth Defendant in the above suit who aided and abetted her in this grossly devious fraud obviously with the belief that retribution will not befall them on account of the natural heirs of Ronald James Ringrow being a mere two and less than a handful and also being resident in a foreign country, additionally also in advanced age and precluded from spending long years in India, more particularly in Bengaluru in the State of Karnataka seeking justice and recovery of their just dues. That by resort to the aforesaid fraudulent legal 37 OS No.25227/2009 gimmicks she had thereby appropriated and misappropriated all the financial assets and securities of the deceased Ronald James Ringrow and had thus been guilty beyond all doubt of the commission of offences punishable under the provisions of Sections 415, 418, 420, 424, 463, 464, 465, 467, 468 and 477 of the Indian Penal Code, 1860 which are extracted in the written arguments.
Learned counsel for plaintiffs further argues that Ronald James Ringrow expired in his residence at Old No.10 and New No.5, Eagle Street, Langford Town, Bengaluru on 25/10/2004. It is significant that the Death Certificate records the "place of death" of Ronald James Ringrow at Item (7) thereof to be "House" and further at Item (8) thereof that his permanent address was No.5, Eagle Street, Langford Town, Bangalore-560
025. The said Certificate is also dated 7/4/2005 and obviously obtained months after the demise of Ronald James Ringrow. That the mortal remains of Ronald James Ringrow were hurriedly disposed of in the Protestant Cemetery situated on Hosur Road, Langford Town, Bangalore, soon after his demise on 25.10.2004 under the superintendence, supervision and instance of the Fourth Defendant herein and her family and the aforesaid Faustin D'Souza. That post demise of Ronald James Ringrow on 25/10/2004 his natural heirs sought to travel to Bengaluru, State of Karnataka, India with a view to wind up his 38 OS No.25227/2009 Estate and give expression to his last Will and Testament dated 29/1/1998, an unregistered original of which was with the First Plaintiff, but were dissuaded from doing so by the Fourth Defendant herein who claimed that she had undertaken all arrangements necessary for the winding up of the Estate of the deceased Ronald James Ringrow and there was thus no need for them to come to India in this regard. The Plaintiffs thus bided time being also precluded from undertaking a lengthy trip to India on account of Visa Requirements but nevertheless sought information and clarifications with regard to the disposal of his mortal remains and the Estate of the deceased Ronald James Ringrow from the Fourth Defendant who had by then made out that she was in control and seisin of the Estate of the late Ronald James Ringrow, too, and cognizant with the various facets thereof. After an initial and superficial interaction with the First Plaintiff obviously to determine the nature of the struggle for justice that they would put forth the First Defendant remained silent and began to ignore the repeated attempts made by the Plaintiffs to get in touch with her for due information and material relating to the Estate of the deceased Ronald James Ringrow which by his aforesaid last Will and Testament he had confided all his trust to the Defendants 1, 2, 3 and the First Plaintiff herein to establish and execute with attendant preparation of an Inventory in respect thereof and the submission of a Final Statement of Account in respect of 39 OS No.25227/2009 the same after disbursement of legacies, as mandated in law and more particularly the provisions of the of the Indian Succession Act, 1925 relating to the administration of his disposable Estate. The aforesaid efforts of the First Plaintiff were totally ignored and not regarded or responded to in any manner whatsoever by the Fourth Defendant herein. The First Plaintiff was thus constrained to visit India more particularly Bengaluru, for execution of the trust reposed inter alia in her by the late Ronald James Ringrow, vide his aforesaid Wills. That upon arrival in Bangalore in the latter part of March 2005 the First Plaintiff with the assistance of long standing friends, acquaintances, Legal Counsel and members of the religious fraternity of the deceased, was able to obtain the information and material necessary and those indicated to be in existence to determine the nature and far reaching effects of the fraud that had been played on the deceased Ronald James Ringrow and which also encompassed and impacted her own mother the Second Plaintiff herein in a way and of the grave injustice that had been done to Ronald James Ringrow and his testamentary heirs being none other than his natural heirs, only, and the need for her to immediately undertake arrangements to reverse the effect of the fraud played by the Fourth Defendant in conspiracy with the Defendants 1, 2, 3 and 5 and 6 in the above case and others associated with her and to ensure that the delinquents in this regard were duly 40 OS No.25227/2009 prosecuted and punished for their criminal conduct and this led to the institution of the following legal proceedings viz-
(i) P.& SC No.15022/2005 instituted on 16/4/2005 on the file of this Hon'ble Court IVth Additional City Civil Judge, Court Hall No. 21, Bangalore, now before the Hon'ble Court in O.S. No. 25227/2009 at the stage of Final Arguments.
(ii) P.& SC 79/2005 instituted on 23/4/2005 on the file of the Hon'ble Additional City Civil Judge, CCH No.3, Bangalore City now listed on 27/9/2021 for final arguments.
(iii) PCR No.57420/2005 instituted on 30/4/2005 in the Court of the Hon'ble XIth Additional Chief Metropolitan Magistrate, Mayo Hall Bangalore and now on the file of the Hon'ble 29 th Additional Chief Metropolitan Magistrate, Mayo Hall, Bangalore listed on 16/10/2021 for hearing,
(iv) P.Misc. 31/2005 instituted on 6/5/2005 on the file of the Hon'ble Additional City Civil Judge, CCH No.3, Bangalore City now listed on 27/9/2021 for Cross Examination of P.W. No. 1.41
OS No.25227/2009
(v) W.P. No. 14432/2005 instituted by the Fourth Defendant in the Hon'ble High Court of Karnataka at Bangalore and disposed off on 15/11/2005, and
(vi) Misc. No.616/2007 instituted by the Fourth Defendant in the Court of the Hon'ble Principal City Civil Judge, Bangalore City, CCH No.1, dismissed on 8/10/2010.
That P & SC 15022/2005 was instituted for grant of representation to the Estate of the deceased Ronald James Ringrow and are the proceedings in the above case. P & SC No.79/2006 was instituted under Section 192 of the Indian Succession Act, 1925 for protection and preserveration of the Estate of the deceased. P Misc 31/2005 was instituted to annul the deeds of Gift allegedly made in favour of the Defendants 4 and 5 and was so instituted in forma pauperis as the Plaintiffs were not in possession of finances belonging to the Estate of the deceased and which had been wrongfully appropriated and held by the Defendants Nos. 4, 5 and 6. PCR was instituted to prosecute the Fourth Defendant for commission of offences under the provisions of the Indian Penal Code, 1860 referred to herein above. WP No. 14432/2005 was instituted to set right proceedings in P & SC 79/2005 and Misc 616/2007 was instituted by the Fourth Defendant to protract proceedings and bring about a transfer of the above case to the Courts seized of the proceedings in P & SC 79/2005 and P Misc 31/2005. That P 42 OS No.25227/2009 & S.C. No. 15022/2005 was instituted by them on 16/4/2015 seeking reliefs which were incorporated in the Prayer Column therein and reproduced verbatim hereunder for ready reference, viz. :-(a) that the first of them may be allowed to prove the said Will dated 29/1/1998 of the late Ronald James Ringrow in common or solemn form and that probate thereof to have effect through out the whole of India may be granted to her, or (b) that Letters of Administration to the Estate of the deceased Ronald James Ringrow be granted to the Second Petitioner, and (c) for such further or other reliefs as this Hon'ble Court deems fit or the nature of the case requires. Briefly the case of the Plaintiffs in P & SC No.15022/2005 was that they are Australian Nationals of Indian Origin and permanent residents of the City of Adelaide, Australia. They are housewives and close relatives of one Ronald James Ringrow who was the biological son of one Edward John Ringrow, (Senior), and resident at Old No. 5 and New No. 10, Eagle Street, Langford Town, Bengaluru - 560025. Whilst the First Plaintiff is his niece the Second Plaintiff is his only biological sister and sibling. That aforesaid Ronald James Ringrow expired on the twenty fifth day October, Two thousand and four in the City of Bangalore, State of Karnataka, India and the Certificate of Death issued by the responsible authorities in respect of the same has been produced at Exhibit 'B' to the petition in P. & S.C. 15022/2005. At the time of his demise they pleaded that 43 OS No.25227/2009 the permanent place of abode of the deceased Ronald James Ringrow was premises bearing Old No. 5 and New No. 10, Eagle Street, Langford Town, Bengaluru - 560025. Further it was the case of the Plaintiffs that the deceased Ronald James Ringrow was an Indian National and Protestant Christian by religious denomination. The said Ronald James Ringrow belonged to the Methodist Fellowship, a sub sect of Protestant Christianity. In the matter of inheritance and succession the said Ronald James Ringrow was governed by the provisions of the Indian Succession Act, 1925, it was specifically contended therein. It is further argued that late Ronald James Ringrow at the time of his death owned movable and immovable properties in the City of Bangalore in the State of Karnataka, India which he sought to dispose off in terms of a Will made and executed by him on 29/1/1998 and which said Will was registered in the office of the Sub Registrar of Assurances, Shivajinagar, Bengaluru as document No. 352/1997-98 in Book III, Volume 131, Page 213 to 220, a Certified Copy of which was produced at Exhibit 'C' to the aforesaid Petition and the identical copies of the same which were duly made and executed and attested though an unregistered one of which, was produced by them at Exhibit 'D' to the plaint. Pleading that the Wills of the deceased Ronald James Ringrow were duly made, executed and attested and one of which was also duly registered they apprised this Hon'ble Court of the fact that the Verifying Affidavit of one of the 44 OS No.25227/2009 attesting witnesses to the aforesaid Wills was also appended at the foot of the Petition and sought for a Grant of Probate in respect of the same. The Plaintiffs had also pleaded that the Will dated 29.1.1998 which was duly registered was not traceable as on the date of the presentation of the Petition for Grant of Probate and other reliefs in respect of the same which was surmounted by the Original Will as per Exhibit "D" to the said Petition and in the Affidavit of Valuation filed with this Petition expressly and precisely set out details of the movable and immovable assets and the liabilities attaching with the Estate of the deceased Ronald James Ringrow therein. The Nett Value of the Estate of the deceased, as on the date of his demise was indicated to be Rs.1,08,01,141.81/- (Rupees one crore eight lakhs, one thousand, one hundred and forty one rupees and eighty one paise only). Plaintiffs also pleaded that other than the instant Petition they had not made any application to any District Court or District Delegate or to any High Court for grant of Probate of any Will of the said deceased Ronald James Ringrow or for a Grant of Letters of Administration with or without the aforesaid Will annexed to his property and credits. In the aforesaid Petition in P & S.C No.15022/2005 the Plaintiffs further submitted that in the unlikely event of this Hon'ble Court adjudging the deed being the original of Exhibit "E" i.e. the Deed of Cancellation referred to herein supra, legal, valid binding and justiciable, then the legal consequence of 45 OS No.25227/2009 such a finding would be that the deceased died intestate, in which event in terms of the Indian Succession Act, 1925 the entire disposable Estate of the deceased Ronald James Ringrow would devolve on his sole surviving heir and next of kin the Second Plaintiff herein. The Second Plaintiff would thus in law and in fact be entitled to a grant of representation to the Estate of the deceased Ronald James Ringrow. The Second Plaintiff would thus be entitled to the grant of Letters of Administration to the Estate of the said deceased Ronald James Ringrow. The Second Plaintiff had thus joined the First Plaintiff in the institution of the above Petition as she would be solely entitled to the grant of Letters of Administration to the Estate of the deceased Ronald James Ringrow of which she is the universal and sole beneficiary in the alternative and the said Petition was therefore instituted by them. That the Plaintiffs as Petitioners in P & S.C No.15022/2005 pleaded therein and respectively undertook to duly administer the property and credits of the said deceased Ronald James Ringrow and to make a full and true Inventory thereof and to exhibit the same in this Hon'ble Court within six month from the date of grant of probate/ letters of administration to them as the case may be and also to render to this Hon'ble Court a true account of the said property and credits within one year from the said date. That in P & S.C No.15022/2005 they also pleaded that since the latter part of the year 1999, Ronald James Ringrow started deteriorating in 46 OS No.25227/2009 mind and body and that he was afflicted by a malignancy in his prostrate gland and suffered from repeated bouts of urinary infections and problems. He had developed an enlarged libido and became amorously disposed towards women. Having suffered the removal of his right lung the deceased had extreme difficulty in breathing and suffered from umpteen respiratory problems, too. He suffered from high blood pressure and mental depression. He felt insecure and had developed a strange fear that he would be dispossessed of his movable and immovable properties. He desired police protection as a result of the same. He became unduly suspicious of his friends and soon came under the influence of the Fourth Respondent in the aforesaid case who is none other than the Fourth Defendant in the above case. The said Fourth Respondent (Fourth Defendant) was thus a constant and frequent visitor of the deceased and she soon thereby began to dominate him and gradually by this undue influence that she wielded over him arranged to appropriate his movable and immovable properties for her benefit and that of the members of her family. She ensured that the deceased remained isolated and thus precluded from communicating with those close to him. She misrepresented facts and circumstances to the Plaintiffs/Petitioners and their relatives and gradually assumed total control of the assets of the deceased. She has illegally and for inadequate considerations caused conveyance of valuable immovable 47 OS No.25227/2009 assets of the deceased and the Second Plaintiff/Petitioner situated at New No.5, Old No.10, Eagles Street, Langford Town, Bangalore-560 025, to her daughter and herself. At Exhibits "F" and "G" to the aforesaid Petition in P & S.C No.15022/2005. Plaintiffs/Petitioners have produced xerox true copies of certified copies of the deeds of sale whereby the property referred to herein supra were conveyed by the deceased and the Second Plaintiff to the Fourth Defendant and to her daughter the Fifth Defendant. It was prayed that the same be kindly read as part and parcel of this Petition. The said Fourth Defendant had inter meddled with the Estate of the deceased and had failed to render an account of her dealings in respect thereof despite having been called upon to do so. She had assumed complete control of the major part of the assets of the deceased and had sought to make payments on behalf of the Estate of the deceased which she was not authorized in law to do. She had also thereby made the Sixth Defendant and herself as illegal beneficiaries of some of the financial assets of the deceased. The said Fourth Defendant had monitored the health of the deceased and had been solely responsible for the "medical treatment" which was accorded to the deceased which the Plaintiffs now learn are of a highly suspicious and dubious nature. The bonafides of the alleged physician of the deceased and the Fourth Defendant and her abettor were called into question in this regard. Plaintiffs had reason to 48 OS No.25227/2009 believe that the demise of the late Ronald James Ringrow was not wholly occasioned by natural circumstances and causes. The complicity of the Defendants 1, 2 ,3 and 5 and one Faustin D'souza in the illegal acts of commission and omission of the Fourth Defendant is a dominant factor in context of the last days of the deceased on Earth and his Estate. The Plaintiffs reserved right to plead extensively and elaborately in this regard as and when need therefor arose. Plaintiffs also undertook measures to ensure that alienations of the movable and immovable properties of the deceased made as aforesaid and otherwise are reversed and that the same again form part of the Estate of the deceased. The Plaintiffs have reason to believe that via a criminal conspiracy hatched by the Fourth Defendant the Estate of late Ronald James Ringrow and the Second Plaintiff herein have been defrauded and unlawful losses caused to them. The Defendants 1, 2 and 3 have failed to execute the Will dated 29/1/1998 and neither have they manifested an intention to do so. The First Plaintiff was therefore constrained to institute the aforesaid Petition and duly cited the said Defendants as parties thereto for confirmation of their refusal to propound the aforesaid Will dated 29/1/1998 of the deceased Ronald James Ringrow. Finally, the Plaintiffs sought as reproduced verbatim hereunder in P & SC No.15022/2005 and as indicated herein supra the following reliefs : -(a) that the first of them may be allowed to prove the 49 OS No.25227/2009 said Will dated 29/1/1998 of the late Ronald James Ringrow in common or solemn form and that probate thereof to have effect through out the whole of India may be granted to her, or
(b) that Letters of Administration to the Estate of the deceased Ronald James Ringrow be granted to the Second Petitioner, and
(c) for such further or other reliefs as this Hon'ble Court deems fit or the nature of the case requires. That further to their compliance with all the predicated formalities that attach with a Petition for Grant of Probate or Letters of Administration with Will annexed or a mere grant of Letters of Administration the Defendants in the above case entered appearance and Defendants 4, 5 and 6 consciously and effectively sought to oppose and contest the same on merits. In context of the Petition in P & S.C. No. 15022/2005 wherein relief as per the Prayer Column referred to herein supra. was sought for the Plaintiffs submit with deep respect that the Defendants 4, 5 and 6 in the above case sought to appear and contest the proceedings in the above said Petition. The Defendants 1, 2, 3, 4 and 8 did not evince any interest or manifest any intention to do so other merely filing formal and indifferent responses to the case propounded by the Plaintiffs. No effort to oppose and contest the proceedings in the above case was made by them either jointly or severally and the same has proceeded without their active participation therein at all relevant times.
50OS No.25227/2009 It is further argued by the Learned counsel for Plaintiffs that the Defendants 4, 5 and 6 filed an elaborate Written Statement in the aforesaid Petition extending to twenty four pages and manifesting other than prolixity therein absolutely no merit. Most importantly these Defendants 4, 5 and 6 have admitted the propriety, validity, making, execution and attestation of the Will dated 29/1/1988 registered as document No.352/1997-98 in Book III, Volume 131, Pages 213 to 220 in the Office of the Sub Registrar of Assurances, Shivajinagar, Bangalore and impliedly the unregistered Will dated 29/1/1988 being the Carbon copy of the Registered Will and duly made and executed by the deceased Ronald James Ringrow and duly attested by Wg. Cdr. M.R Shirazi, SC VM, (Retired - Indian Air Force) and Ms Alice Jesudian, in identical fashion as the registered one. That the Defendants 4,5 & 6 are in effect biological mother and her children. The mother who is the Fourth Defendant in the above case has been solely instrumental in bringing about the involvement and participation of the Fifth and the Sixth Defendant in the fraudulent appropriation of the movable and immovable assets of the deceased Ronald James Ringrow and the consequential deprivation caused to the Plaintiffs of what should have been received by them without much ado and as a matter of right. Plaintiffs will address, establish and prove their contentions made herein supra, hereinafter. However before embarking on 51 OS No.25227/2009 this voyage the Plaintiffs consider it necessary and expedient for them to apprise this Hon'ble Court of the nature of their opposition to the claims and aspirations of the Plaintiffs in the above case.
It is further argued by the Learned counsel for Plaintiffs that the Defendants 4, 5 and 6 in their Written Statement filed on 2/8/2010 have vaguely and half heartedly admitted the projected antecedents and attributes of the deceased Ronald James Ringrow and have sought to make out that as on the date of his demise i.e. 25/10/2004 the said Ronald James Ringrow was a person NOT possessed of a disposable or transmissible Estate and that the same vested in her and her children absolutely and forever. The need for a grant of Representation or Letters of Administration was thus a non- existent one according to them as there was no Estate to be managed, administered and controlled under superintendence of this Hon'ble Court. The dismissal of the Petition was therefore sought for by them. In context of what is stated herein supra the Defendants 4, 5 and 6 whilst admitting that the deceased Ronald James Ringrow owned, possessed, occupied and enjoyed jointly and severally, with the Second Plaintiff the immovable property referred to herein supra, contended that the immovable component of the same had been sold, transferred, conveyed and assigned to the Fourth and Fifth Defendants for valuable consideration as far back as 52 OS No.25227/2009 19/10/2000 under two deeds of Sale particularized hereunder, viz:-(i) Deed of Sale dated 19/10/2000 registered in Book I of the Office of the Sub Registrar of Assurances, Shivajinagar, Bangalore as document No. BNG(U)-SNGR-2397/200-01, Book I- 2.22 (ii) Deed of Sale dated 19/10/2000 registered in Book I of the Office of the Sub Registrar of Assurances, Shivajinagar, Bangalore as document No.BNG(U)-SNGR-2398/200-01, Book I- 2.22. The Estate of Ronald James Ringrow was thus divested of its immovable component and thus restricted to his movable items in his residence and his financial securities and assets in local banks and monies that had been entrusted by him long before his demise to the Defendants 1, 2 and 3 for undertaking and defraying costs attaching with his deathbed illness if any and his funeral. That the further case put forward by the Defendants 4, 5 and 6 was that the movables in his residence were bequeathed to his domestic aides together with sums of money to each of them and the financial securities owned by him on an Either or Survivor basis with the Defendant No.4 would ennure to her benefit on account of her being the nominee allegedly designated by him in this regard to the Banking Institutions wherein the same were held thus rendering the Estate whether movable or immovable to nought. That the further case of the Defendants 4,5 and 6 was that the deceased Ronald James Ringrow on 5/2/2002 drafted and drew in his own hand a deed of cancellation of his registered Will dated 53 OS No.25227/2009 29/1/1988 which was faired and typed the following day and ultimately registered in the Office of the Sub Registrar of Assurances as document No. 301/2002-03 in Book III, Volume 156, Pages 247 to 248 and which said Will was thus allegedly annulled, canceled and revoked absolutely and forever. The deceased Ronald James Ringrow according to them therefore died intestate and in view of the nomination of the Defendant No.4 as the beneficiary of all his financial securities and assets the Fourth Defendant was the sole and absolute owner of the same as a result of this arrangement allegedly made by the deceased Ronald James Ringrow. The Estate of the deceased Ronald James Ringrow was thus non est and his natural heirs thus allegedly divested of any benefit that would have accrued to them but for the same. The proceedings instituted by the Plaintiffs arising in the now contentious Petition in the aforesaid case according to the Defendant 4,5 and 6 were thus redundant and of no consequence and should be dismissed summarily for want of a cause of action they claimed. Plaintiffs in context of what is stated herein supra further contended that the nomination to receive the movable financial securities and assets of the deceased held in local Banks was occasioned on account of the disillusionment that the deceased Ronald James Ringrow felt with regard to his sibling and biological sister the Second Plaintiff herein and her children i.e. the First Plaintiff and other siblings of the latter allegedly as also being the cause 54 OS No.25227/2009 for the cancellation/revocation of his last Will and Testament dated 29/1/1998 referred to in extenso herein supra. The impliedly made disposition of his furniture and other movables in his place of abode to his domestic aides thus prompted the Fourth Defendant to permit these aforesaid domestic aides to take possession of these movables thus resulting in a situation wherein the need for an Executor/ Executrix or Administrator was totally excluded and rendered non est. Similarly monetary payments of Rs.2,00,000/- (Rupees two lakhs only), to each of them was effected by the Fourth Defendant allegedly on oral instructions of the deceased. That the Defendants also raised certain technical issues relating to the disposal of the Estate of the deceased Ronald James Ringrow and elaborated at length on the Sale transaction whereby the immovable asset of the deceased Ronald James Ringrow and the Second Plaintiff came to be disposed off and also made reference to his medical condition, alleged soundness and disposing state of mind whilst constantly asserting the propriety of her conduct and also that of her uncle vis a vis the deceased Ronald James Ringrow. The Defendants 4, 5 and 6 sought to make out that they had acted as good Samaritans vis a vis the deceased and also highlighted the role played by Dr.R.Shankar Prasad, Medical Consultant attached to St Philomena's Hospital, Bangalore which the Plaintiffs were aware questionable and who allegedly featured as an attesting Witness to the deed of Cancellation referred to 55 OS No.25227/2009 herein supra. That the Defendants 4, 5 and 6 expressly denied that they had acted in criminal conspiracy to cheat the deceased of his wealth and sought to make out that the deceased Ronald James Ringrow was well disposed towards the first of them though contradictory statements were made by her in this regard in the prolix Written Statement filed by them. Finally whilst asserting that the deceased Ronald James Ringrow breathed his last on 25/10/2004 and that he died without leaving behind either movable or immovable properties to be succeeded to by anyone under the Will dated 29/1/1998 and in the absence of the same the Plaintiffs according to them allegedly had no right in law to seek for a Grant of Letters of Administration in respect of the revoked Will and therefore contending that the proceedings initiated by the Plaintiffs were not maintainable also contended that they were therefore liable to be dismissed and expressly prayed that this Hon'ble Court be pleased to dismiss the above Petition with exemplary costs to meet the ends of justice. That the proceedings in P & S.C. No. 15022/2005 on account of contention having arisen therein as a result of all the Defendants and more particularly the Fourth, Fifth and Sixth Defendant appearing therein with intent to oppose the grant of reliefs sought for by the Plaintiffs (Petitioners), therein, the same as indicated herein supra came to be directed to be registered as a Testamentary Original Suit by virtue of the Order of this Hon'ble Court and consequently 56 OS No.25227/2009 registered as Testamentary Original Suit No.25227/2009, thereafter. That all the aforesaid proceedings are governed by the provisions of the Indian Succession Act, 1925 and the Rules framed by the Hon'ble High Court of Karnataka at Bangalore in exercise of powers conferred by Article 227 of the Constitution of India and all other powers thereunto enabling, the High Court of Karnataka with the previous approval of the Governor of Karnataka to make and promulgate Rules governing the procedure for the grant of Probate and Letters of Administration by Courts subject to the superintendence of the High Court of Karnataka and also by authority and power vested in it under Section 122 of the Code of Civil Procedure,1908 to make Rules regulating its own procedure and the procedure of the Civil Courts subject to its superintendence and may by such Rules annul, alter or add to all or any of the Rules in the First Schedule of the Code of Civil Procedure, 1908 where applicable, and copies of which said Rules are at Annexure "E" hereto and which may kindly be read as part and parcel of this Written Submission.
The Learned counsel for plaintiffs argued that the payment of the Court Fee prescribed under Schedule II Item 11(l) of the Karnataka Court Fee and Suits Valuation Act, 1958, the proceedings in P & SC No.15022/2005 were registered as T.O.S No.25227/2009 with the Petitioner in P & SC No.15022/2005 filling the status of the Plaintiffs in T.O.S 57 OS No.25227/2009 No.25227/2009 and the Respondents in P & SC No.15022/2005 filling the roles of the Defendants 1 to 8 therein. Further to the consequent amendments of the Petition in P & SC 15022/2005 pursuant to the Order of this Hon'ble Court and the filing of the "Plaint" arising therefrom the Respondents 1 to 8 have sought to oppose the proceedings in OS No.25227/2009 in the capacity of Defendants 1 to 8 herein with their Statement of Objections filed in the aforesaid Petition regarded as their Written Statements. That on the basis of the pleadings in O.S No.25227/2009 this Hon'ble Court has framed five Issues which are as follows:-
ISSUES
1. Whether the defendants prove the cancellation of the Will dated 29.1.1988 on 5.2.2002 under deed of cancellation?
2. Whether the plaintiffs prove that the Will dated 29.1.1988 is the last Will of late Ronald James Ringrow?
3. Whether the plaintiffs are entitled for the Letters of administration to the estate of deceased late Ronald James Ringrow?
4. Whether the plaintiffs are entitled for the probate of the Will dated 29.1.1988?
5. What decree or order?
Further it is submitted that the Plaintiffs examined Wg. Cdr. M.R. Shirazi,SC VM, (Retired - Indian Air Force) as a witness in support of their case in the capacity of their Special Power of Attorney Holder and as an attesting witness to the Will dated 29/1/1998 of the deceased Ronald James Ringrow. Exhibits were marked in favour of the Plaintiffs through him. Defendants examined the Fourth Defendant, only, in support of their case and caused the marking of Nine Exhibits.
The ADMISSIONS IN THE WRITTEN STATEMENT ISSUES GENERALLY:- ISSUE NO.2:-
At the very outset and before addressing specifically the onus cast on the Defendants and the Plaintiffs vis a vis the Issues framed in the above case Plaintiffs submits that as Propounders of the Will dated 29/1/1998 the burden lay heavily on them to prove to the very hilt the authenticity of the same and that the said Wills were made and executed whilst the deceased Ronald James Ringrow was possessed of testamentary capacity i.e. that he was of a sound and disposing state of mind and further that the said Will was duly attested by the witnesses thereto in the manner predicated by Section 63 of the Indian Succession Act, 1925 and that all suspicious circumstances if any attaching with the making, execution and attestation of the aforesaid Wills dated 29/1/1998 of the late Ronald James Ringrow were dispelled and 59 OS No.25227/2009 negated and rendered non est. This was the fundamental and sole duty of the Propounder/s of a Will before a Court exercising Probate and Testamentary Jurisdiction. In the present case the Defendants Nos.4, 5 and 6 as borne out by the Written Statement filed by them in the above case have no quarrel with the manner in which Ronald James Ringrow made and executed his last Will and Testament dated 29/1/1998 and the due attestation of the same and finally with its registration in the office of the Sub Registrar of Assurances, Shivajinagar, Bangalore as document No.352/1997-98 in Book III, Volume 131, Pages 203 to 220. In context of what is stated in the paragraph immediately herein supra and in continuation thereof the Plaintiffs draw the attention of this Hon'ble Court to the pleadings i.e. Written Statement filed by the Defendants 4, 5 and 6 in the above case. More particularly the said Defendants at Pages 4, 5 and 6 of the aforesaid Written Statement have pleaded as follows with regard to paragraph No.6 of the Plaint. "WITH REGARD TO PARA NO. 6:- The contention of the Plaintiff that the deceased Ronald James Ringrow on 29/1/1998 executed a Will and the said Will has been registered in the Office of the Sub Registrar, Shivajinagar, Bangalore as Document No.352/1997-98 may be a fact It is relevant to place on record that Ronald James Ringrow during his life time on 6/2/2002 canceled the Will dated 29/1/1998 by executing a Deed of Cancellation. The said document is 60 OS No.25227/2009 registered in the Office of the Sub Registrar, Shivajinagar, Bangalore. Copy of the said Cancellation Deed is herewith produced for the kind perusal of this Hon'ble Court. It is further relevant to place on record that Sri Ronald James Ringrow on 5/2/2002 prepared a Deed of Cancellation of the Will dated 29/01/1998 in his own handwriting. On the following day he got it typed on the stamp paper and produced the same before the Sub Registrar. The Sub Registrar accepting the presentation of the said document for Registration registered the same on 6/2/2002 thereby the Will dated 29/1/1998 stood cancelled/revoked on 6/2/2002. In the view of the matter Ronald James Ringrow did not die leaving behind any Wills.
Even otherwise Ronald James Ringrow did not die leaving any movable or immovable properties to be succeeded by anyone in the light of the Sale Deeds dated 10/10/2000 executed by him in favour of Defendant Nos. 4 and 5. The further contention of the Plaintiffs that one of the attesting witness namely Wg Cdr M.R Shirazi is at the foot of this suit and may kindly be read as part and parcel thereof is concerned, a person by name Wg Cdr Shiraji had attested the Will dated 29/1/1998. Perhaps there is no dispute with regard to the execution and registration of the said Will and also the attestation of the said Will by Wg Cdr Shirazi. When the Will itself was revoked, there is no question of looking into the verifying affidavit filed by Wg Cdr Shirazi. The revocation of the 61 OS No.25227/2009 Will was very much within the knowledge of the Plaintiffs as well as the said attester namely Wg Cdr Shirazi whether he is examined or not which will not alter the nature of the proceedings." Further with regard to PARA No.12 at Pages 12, 13 and 14 of the Written Statement the Defendant Nos. 4, 5 and 6 have stated as follows:-WITH REGARD TO PARA NO.12:-
The Contention of the Plaintiff that the Revocation Deed executed by deceased Ronald James Ringrow on 6/2/2002 was a product of fraud, coercion, undue influence and such other importunity exercised on him by Defendants Nos. 1 to 7 is hereby denied as false. It is submitted that the deceased Ronald James Ringrow on his own and voluntarily revoked the Will dated 29/1/1998 on 6/2/2002 and nobody has played any fraud, nor coercion or undue influence on him to revoke the Will dated 29/1/1998, the Plaintiff with the sole intention to prejudice the mind of this Hon'ble Court have contended, absolutely there is no truth in it. The further contention of the Plaintiff that on the date of Revocation of Will that the deceased Ronald James Ringrow was not of sound and disposing state of mind and lacked testamentary capacity as such could never have executed and registered the said Deed of Revocation suo motu is hereby denied as false. It is submitted that as on 6/2/2002 he was of sound mind and that he had the capacity of disposing state of mind and he had testamentary capacity and has on his own executed and 62 OS No.25227/2009 registered the Deed of Revocation. The Plaintiff with the sole intention to give a colour to the case on hand have taken a contention that he was not in sound and disposing state of mind. It is further material to place on record that on 8.9.2000 the Second Plaintiff authorized the deceased Ronald James Ringrow to dispose of her share in the Item No.1 of the "A" Schedule Property by executing a General Power of Attorney, it is further relevant to place on record that the deceased Ronald James Ringrow had 2/3rd share in the "A" Schedule Property and that the Second Plaintiff had 1/3 rd share in the "A" Schedule Property. Deceased Ronald James Ringrow by executing two Sale Deeds dated 19/10/2000 sold the Item No.1 of "A" Schedule Property in favour of the Defendants Nos. 4 & 5 for a total Sale Consideration of Rs.45,00,000/-. That apart James Ringrow on 2/2/2002 closed the Joint Account No.11880 opened by him in the name of himself. Dr Gladys Sumitra and John Charles Karkadia at Bank of India. In view of the said fact the Will dated 29/1/1998, in respect of item No.3 of the "A" Schedule Property has become inoperative and lost its essence. As such it was necessitated for Ronald James Ringrow to revoke the Will dated 29/1/1998. As such there is no point in finding fault with the Revocation Deed dated 6/2/2002. The Plaintiffs with the sole intention to mislead this Hon'ble Court have taken a contention that the Defendant Nos. 1 to 7 are behind the revocation of the Will dated 29/1/1998 on 6/2/2002, 63 OS No.25227/2009 absolutely there is no truth in it." Additionally the Defendant Nos. 4, 5 and 6 with regard to Para No.13 have contended as follows:-WITH REGARD TO PARA No.13:- The contention of the Plaintiff that this Hon'ble Court adjudging the Will dated 29/1/1998 is legal, valid, binding and justifiable thus in such circumstance the entire estate of Ronald James Ringrow would devolve upon the Plaintiffs, they not only succeed to the estate on the basis of the Will but also they being his legal heirs are entitled to succeed to the estate of deceased Ronald James Ringrow is incorrect for the following reasons:- Deceased Ronald James Ringrow did not die leaving either movable or immovable properties. Deceased Ronald James Ringrow sold the immovable property by executing two Sale Deeds in favour of the Defendants Nos. 4 and 5 on 19/10/2000. Consequently as regard movables (bank accounts) are concerned, he on 28/1/2002 instructed his banker to enter the name of the Defendant No.4 as a Joint Account holder along with him after cancelling the nomination made by him earlier. In the light of the said fact on the death of Ronald James Ringrow the Defendant No.4 is entitled to operate the bank accounts being a joint account holder either or survivor. In that view of the matter, deceased Ronald James Ringrow did not die leaving any movable or immovable property. Under these circumstances the Plaintiffs are not justified in approaching this Hon'ble Court for a Letter of Administration of the Will dated 64 OS No.25227/2009 29/1/1998. It is further material to place on record that deceased Ronald James Ringrow during his life time i.e. on 6/2/2002 by virtue of a registered document cancelled the Will dated 29/1/1998. In the light of the said fact, the Plaintiffs cannot contend that there was a Will executed by Ronald James Ringrow and that they are entitled for a Letters of Administration. Secondly the Plaintiff did not refer the document dated 6/2/2002 i.e the revocation of the Will dated 29/1/1998 executed by deceased Ronald James Ringrow. The Plaintiffs solely with an intention to confuse the mind of this Hon'ble Court have approached this Hon'ble Court by contending that the Will dated 29/1/1998 is subsisting and that they are entitled for a Letters of Administration on the basis of the same." Finally WITH REGARD TO PARA No.14 the Defendants 4, 5 and 6 have pleaded as follows:-WITH REGARD TO PARA No.14:- The contention of the Plaintiff that they undertook to administer the property and credits of deceased Ronald James Ringrow and to make full and true inventory thereof and to exhibit the same before this Hon'ble Court within six months from the date of grant of Probate/Letters of Administration to them and also to render to this Court true account of the said property and credits within one year from the said date is unacceptable for the following reasons. It is submitted that the Plaintiff claims that they want Probate/Letters of Administration on the basis of the Will dated 65 OS No.25227/2009 29/1/1998. That can be done if there is a Will subsists left behind by Ronald James Ringrow. Perhaps it is a condition precedent. In the light of the document dated 6/2/2002 the Will dated 29/1/1998 had come to an end and revoked. In view of the said fact issuing a Letters of Administration in favour of the Plaintiff does not arise. The Plaintiff with the sole intention to harass these Defendants have made a frivolous suit before this Hon'ble Court. " In their final summation of the case put forth by the Plaintiffs the Defendants 4, 5 and 6 at page 22 of the Written Statement submit as follows:-It is submitted that Ronald James Ringrow on 29/1/1998 executed a Will. Under the Will he had bequeathed the immovable property in the name of the Plaintiff No.2 and also named the Plaintiff as the nominee in respect of some of his bank accounts. He on 19/10/2000 sold the immovable property of himself and also as power of attorney holder of the Plaintiff No.2 in favour of the Defendants Nos. 4 and 5 under the different Sale deeds both dated 19/10/2000, thereby one of the property which was bequeathed under the Will dated 29/1/1998 had come to an end and since he had disposed of during his life time. He had named the 2nd Plaintiff as the nominee in respect of some of his bank accounts. He on 28/1/2002 voluntarily went before the bank authorities and gave a letter to include the name of the Defendant No.4 as a joint account holder (either or survivor) before which he had cancelled the nomination made earlier.66
OS No.25227/2009 This was a voluntary act of the deceased Ronald James Ringrow. Ronald James Ringrow was an educated person. He was having very good health till his death and he was conscious about his dealings and when he was mentally sound when he revoked the Will dated 29/1/1998 on 6/2/2002. He was personally operating his bank accounts by going physically to the bank. He was not depending on any body till his death. After the Will was effected by Ronald James Ringrow the Plaintiff No.2 took her due share from him (the sole trustee). Deceased Ronald James Ringrow had no love and affection towards the Plaintiffs and that was one of the reasons made him to revoke the Will dated 29/1/1998 on 6/2/2002. It is further submitted that deceased Ronald James Ringrow breathed his last on 25/10/2002. On the day when he died he did not leave behind either any movable or immovable properties to be succeeded by any one under the Will dated 29/1/1998. In the absence of the same the Plaintiffs had no right under law to seek for a letters of administration in respect of the revoked Will. In the view of the matter the proceedings that are initiated by them before this Hon'ble Court is not maintainable and the same is liable to be dismissed. Significantly in context of what is extracted from the Written Statement filed by the Defendants 4, 5 and 6 and reproduced hereunder these Plaintiffs draw the attention of this Hon'ble Court to the second paragraph thereof in Page 21 wherein the 67 OS No.25227/2009 Defendant Nos.4, 5 and 6 have contended as follows:-" The last and the least allegations made by the Plaintiffs against the Defendant Nos. 1 to 3 that they being Executors of the Will they did not execute the Will and they failed to execute the Will and neither of them have manifested an intention to do so is hereby denied as false. The Defendant Nos 1 to 3 were quite right in not acting for execution of the Will dated 29/1/1998 for the reason that deceased Ronald James Ringrow during his life time revoked the Will dated 29/1/1998 on 6/2/2002. Perhaps that was the reason for the Defendant Nos.1 to 3 not to go for execution of a revoked Will. What the Plaintiffs want to do by virtue of filing this suit is that they want to enforce a Will which was revoked on 6/2/2002 which is impermissible in law." Without adverting to the other material on record the authenticity and justifiability and most of all the validity of the Will dated 29/1/1998 Plaintiffs submit with respect is laid beyond the realm of dispute and controversy by these very Defendants 4, 5 and 6 themselves in their pleadings i.e. Written Statement and the onus of the proof of the Will dated 29/1/1998 of the late Ronald James Ringrow cast as per Issue No.2 on them in the above case could impliedly be held to be discharged by virtue of the provisions of Section 58 of the Indian Evidence Act, 1872 which are extracted and reproduced hereunder for ready reference.68
OS No.25227/2009 Section 58 - Indian Evidence Act, 1872 Facts admitted need not be proved. --No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.
Notwithstanding what is stated herein supra the Plaintiffs draw the attention of this Hon'ble Court to the provisions of Section 41 of the Indian Evidence Act, 1872 which are also extracted and reproduced hereunder for ready reference Section 41 of the Indian Evidence Act, 1872 Relevancy of certain judgments in probate, etc., jurisdiction.--A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant. Such judgment, order or decree is conclusive proof-- that any legal character, which it confers accrued at the time when such judgment, order or decree came into operation; that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, 1[order or decree] declares it to have accrued to that person; 3[order or decree] declares it to have accrued to that person;" that any legal character which it takes away from any such person ceased at the time from which such judgment, 1[order or decree] declared that it had ceased or should cease; 3[order or decree] declared that it had ceased or should cease;" and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, 1[order or 70 OS No.25227/2009 decree] declares that it had been or should be his property. 3[order or decree] declares that it had been or should be his property."
The operation of a decree of a Court of Testamentary Jurisdiction being one in rem and not one in persona manifested by the procedural formalities mandated under the Probate Rules applicable to such proceedings and the provisions of Sections 59, 61 and 63 of the Indian Succession Act, 1925 which mandate subjective satisfaction of the Testamentary Court vis a vis the propriety and authenticity of a Will propounded before it by an applicant and which inter alia also mandates subjective satisfaction of the said Hon'ble Probate Court to determine and appreciate is the presence of the following legal requirements before pronouncement of authenticity is made by it, viz.
(i) Presence of Testamentary capacity i.e. sound and disposing state of mind as mandated in Section 59 of the Indian Succession Act, 1925.
(ii) Absence of vitiating factors- enumerated in Section 61 of the Indian Succession Act, 1925
(iii) Execution and attestation of the said Will as mandated in Section 63 of the Indian Succession Act, 1925.71
OS No.25227/2009 A duty thus lies on the Plaintiffs to establish notwithstanding admission of the propriety of the Will dated 29/1/1998 of the deceased Ronald James Ringrow by the Defendants herein, independently thereof, and in the manner predicated by law viz. the Indian Succession Act, 1925 and Sections 68 of the Indian Evidence Act, 1872 to establish and prove the making, execution and attestation of the aforesaid Will of the late Ronald James Ringrow by him and the absence therefrom the presence of any suspicious or vitiating circumstances. Issue No.2 was thus duly framed and the burden on the Plaintiffs thereunder it is submitted by them has also been duly discharged. The Defendants in their contention of Cancellation of the same have themselves unilaterally and voluntarily conceded unconditionally the validity of the Wills dated 29/1/1998 of the deceased Ronald James Ringrow.
Learned counsel for plaintiffs further argued that in context of what is stated herein supra, the Plaintiffs submit that they have examined Wg.Cdr. M.R Shirazi, SC VM, (Retired - Indian Air Force), as P.W No.1 in support of their case for grant of Probate of the Will dated 29/1/1998 of the late Ronald James Ringrow referred to herein supra for greater effect and detail. Wg. Cdr. M.R Shirazi,SC VM (Retired - Indian Air Force) has been examined in a dual capacity, first as the Special Power of Attorney Holder of the Plaintiffs in the above case and secondly as one of the attesting witnesses to the aforesaid last Will and 72 OS No.25227/2009 Testament of the deceased Ronald James Ringrow. He has filed his Evidential Affidavit in the case wherein he has manifested the existence of a long standing relationship with the deceased Ronald James Ringrow arising out of his being a student of the deceased whilst in Baldwin Boys High School, Hosur Road, Bangalore and on account of his being a residential neighbour and close associate of the deceased virtually during the latter part of the lifetime of the deceased Ronald James Ringrow which spanned several years. The said Wg.Cdr. M.R Shirazi, SC VM, (Retired - Indian Air Force ), has effectively in his deposition before this Hon'ble Court as P.W.No.I established jurisdictional relationship between the Plaintiffs and himself and the deceased and the proximity of his residence with that of the deceased is borne out by his address projected in his Evidential Affidavit and also pleadings and documents and most of all his competency to tender and adduce evidence in the above case on behalf of the Plaintiffs on account of his personal interaction with the Plaintiffs and the deceased spanning a virtual life time.
Section 68 of the Indian Evidence Act, 1872 provides as follows:-
Section 68 of Indian Evidence Act, 1872 Proof of execution of document required by law to be attested.--If a document is required by law to be 73 OS No.25227/2009 attested, it 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, and subject to the process of the Court and capable of giving evidence: 1[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
Learned counsel for Plaintiffs further argued that they have by examination of Wg. Cdr. M.R Shirazi, SC VM, (Retired - Indian Air Force), who was one of the attesting witnesses to the Will dated 29/1/1998 of the deceased Ronald James Ringrow, duly discharged entirely, the burden cast on them by the provisions of Section 68 of the Indian Evidence Act, 1872 as also the provisions of Section 59, 60 and 63 of the Indian Succession Act, 1925. In context of their aforesaid assertions the Plaintiffs draw the attention of this Hon'ble Court to the contents of paragraphs 1 to 12 of the Evidential Affidavit filed by him and the oral evidence adduced by him wherein apart from stressing his past and ongoing association with the deceased till the demise of the latter and the Plaintiffs herein 74 OS No.25227/2009 therein, he identified the Will dated 29/1/1998 of the deceased Ronald James Ringrow being another original thereof, the signatures of the deceased thereon and his very own. He has also verified the Petition/Plaint in the above case and he has also spoken of attestation of the Will dated 29/1/1998 by Alice Jesudian the other attesting witness. In legal effect the depositions of P.W No.1 have proved the Will of the deceased Ronald James Ringrow. The Issue No.2 framed by this Hon'ble Court which is as follows:-
ISSUE 2: Whether the Plaintiff proves that the Will dated 29/1/1998 is the Last Will of late Ronald James Ringrow?
has been duly proved and established by the Plaintiffs through their Power of Attorney Holder Wg. Cdr. M.R Shirazi, SC VM, ( Retired - Indian Air Force) and being also the attesting witness of the aforesaid Last Will dated 29/1/1998 of the late Ronald James Ringrow. The propriety of the Will in question and its validity was never impugned and its justifiability established by admission in the Written Statement and specific proof vide oral and documentary evidence adduced through him in the course of the proceedings in the above case. Plaintiffs have addressed Issue No.2 first and not sequentially as framed with a view to set at rest any lurking doubts that this Hon'ble Court may have with regard to the propriety and validity of the said Wills and 75 OS No.25227/2009 with a view to stress the need for a due Cancellation/Revocation of the same to be established the burden of which has been cast on the Defendants as per Issue No.1 in the above case.
Further, Learned counsel for plaintiffs argued regarding Issue No.1 framed in the case that in the context of what is stated herein supra submit with deep respect that the Cross Examination of P.W No.1 by the Defendants was superficial in nature obviously in view of their own personal acceptance of the validity and justifiability of the Will dated 29/1/1998 of the late Ronald James Ringrow. The onus cast by this Hon'ble Court vide Issues No.2 on the Plaintiffs having been duly discharged by them, they have proved the authenticity of the Will dated 29/1/1998 made and executed by the deceased Ronald James Ringrow and are thus entitled to a grant of Probate of the same to the First Plaintiff herein. It is reiterated that the Defendants 4, 5 and 6 have admitted the validity of the said Will in all respects. The next question that would arise would be the one "Whether the same was duly revoked?" Plaintiffs at the very outset submit that this is not so. The Defendants 4,5 and 6 are asserting Cancellation/ Revocation of the same and must discharge the burden cast on them by Issue No.1. That at this juncture and stage of the proceedings in the above case they closed their side of the evidence reserving right to themselves 76 OS No.25227/2009 to lead rebuttal evidence on Issue No.1 and were granted such reservation. The case then came to be listed for the evidence of the Defendants with regard to the establishment of Issue No.1 casting the burden on them to prove due revocation of the Will dated 29/1/1998 of the late Ronald James Ringrow. Defendants examined Defendant No.4 as D.W No.I in support of their case. The said D.W No.1 filed an elaborate Evidential Affidavit in lieu of oral examination which in effect was a replication with required amendments and alterations of the Written Statement filed by her and the Defendants Nos.5 and
6. She was Cross Examined at length and despite default in furnishing a Witness List sought permission to adduce further evidence which she was summarily granted by this Hon'ble Court and which opportunity she failed to take advantage of and thus forfeited her right to lead such evidence though in reality she had also orally submitted that she had no intention of doing so. Defendants have also not pleaded revocation of the Will dated 29/1/1988 in the manner predicated for the making, execution and attestation of an unprivileged Will. No evidence can thus be adduced in this regard and context on account of the lack of a pleading by the Defendants Nos.4, 5 and 6 resulting in the formulation of Issue No.1. The Issue is thus irrevocably closed. Plaintiffs submit with deep respect that Section 70 of the Indian Succession Act, 1925 provides as follows:77
OS No.25227/2009 Section 70 of Indian Succession Act, 1925 Revocation of unprivileged Will or codicil.--No unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is herein before required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same. Illustrations
(i) A has made an unprivileged Will. Afterwards, A makes another unprivileged Will which purports to revoke the first. This is a revocation.
(ii) A has made an unprivileged Will. Afterwards, A being entitled to make a privileged Will makes a privileged Will, which purports to revoke his unprivileged Will. This is a revocation.
In context of the aforesaid provisions the Plaintiff draws the attention of this Hon'ble Court to the fact that the Will dated 29/1/1998 was an unprivileged one. If revoked by some writing declaring an intention to revoke the same, the said writing must be executed in the manner in which an unprivileged Will is required to be executed in terms of the 78 OS No.25227/2009 Indian Succession Act, 1925. The provisions of Section 68 of the Indian Evidence Act, 1872 would thus have application to the aforesaid Deed of Revocation/Cancellation, a procedure and important formality which the Defendants 4, 5 and 6 have failed to undertake to prove and establish in the Trial in the above case. This contention of the Plaintiffs is also subjectively advanced and without prejudice as the Defendants have also not pleaded material to facilitate the same. The Defendants 4, 5 and 6 have thus failed to discharge the burden of proof cast on them by Issue No.1 in the above case. The Will dated 29/1/1998 has thus NOT been revoked or cancelled and thus remains in full force and effect. A conspectus of the aforesaid provision mandates that if the drawing and execution of a deed of revocation of a specific Will is resorted to it must be so made and executed in the like manner as applicable to an unprivileged Will. Hence the Cancellation Deed that was allegedly executed by the deceased Ronald James Ringrow which did not project or portray and most importantly did not possess the necessary ingredients of a Deed of Revocation of a Will, in the light of the provisions of Section 70 of the Indian Succession Act, 1925 and the attaching and prevailing laws does not assume the mantle, feature or ingredients of a Deed of Revocation. The Deed of Cancellation as per Ex D-5 and Ex D-6 is void ab initio and not justiciable in any manner whatsoever. The Defendants have failed to prove due 79 OS No.25227/2009 Revocation of the Will dated 29/1/1998 of the late Ronald James Ringrow registered as document No.352/1997-98 in Book III Volume 131 Pages 213 to 220 in the office of the Sub Registrar of Assurances Shivajinagar, Bangalore. The Will dated 29/1/1998 is thus valid and justiciable and a grant of Probate thereof to the First Plaintiff in the above case is an imperative necessity and a longstanding need for this relief must thus be summarily granted to the First Plaintiff in the above case together with the consequential reliefs that also attached with such a grant. The above Testamentary Original Suit must thus be decreed as initially prayed for and not in the alternative it is submitted with deep respect. Notwithstanding what is stated herein supra, that even if one were to assume for purposes of argument without conceding the same that the Deed of Revocation (in the instant case termed a Deed of Cancellation) is not a document to be proved within the meaning of Section 68 of the Indian Evidence Act, 1872 extracted and reproduced herein above and hereunder too, the said Deed of Cancellation now regarded as a Deed of Revocation by the Defendants themselves has not been proved in the manner predicated by the provisions of Section 68 of the Indian Evidence Act, 1872 which said legal provision is extracted and reproduced hereunder for ready reference Section 68 of the Indian Evidence Act, 1872 80 OS No.25227/2009 Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it 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, and subject to the process of the Court and capable of giving evidence: 1[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] Neither the maker of the documents as per Exhibit D-1 and D-2 has been examined as a witness in support of the documents and most of all neither has either or both the alleged witnesses of the same been examined as witnesses in confirmation of their alleged signatures and alleged fact of attestation of the said deed within the meaning of Section 3 of the Transfer of Property Act, 1882 which is extracted and also reproduced hereunder for ready reference Section 3 of the Transfer of Property act, 1882 "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or 81 OS No.25227/2009 more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;
and the provisions of Section 70 of the Indian Succession Act,1925. In the light of what is stated herein it is more than apparent that the Defendants have failed to establish that the Will dated 29/1/1998 registered as document No.352/1997-98 in Book III, Volume 131, Pages 213 to 220 in the Office of the Sub Registrar of Assurances, Shivajinagar, Bangalore has been revoked absolutely and forever and that the said Will subsists and is valid and justiciable in all respects is the only inference that this Hon'ble Court must necessarily reach mandating inter alia the grant of Probate of the aforesaid Will dated 29/1/1998 to the First Plaintiff in the above case. Additionally and again notwithstanding what is stated herein supra Plaintiffs submit with deep respect that if this Hon'ble Court was pleased to reject the contentions of the Plaintiffs vis a vis issue of 82 OS No.25227/2009 Revocation of the Will dated 29/1/1998 particularized herein supra by the Deed of Cancellation as per Exhibit D-1 and D-2 with the consequential inference that the aforesaid Will is non est with effect from 6/2/2002 these Plaintiffs submit with deep respect that the said Revocation/Cancellation of the Will dated 29/1/1998 by the Deed of Cancellation/Revocation dated 5/2/2002 and 6/2/2002 respectively as per the Originals of Exhibit D-1 and D-2, on an examination of those aforesaid Cancellation Deeds/Revocation Deeds as per Exhibits D-1 and D-2 from the stand point of the same being the explicit product of fraud, undue influence, coercion and other importunity that renders them void ab initio manifests that they are thus neither enforcible or justiciable and the plethora of negative evidence projected by the very Defendants 4, 5 and 6 in the above case may thus be utilised by this Hon'ble Court to conveniently and without much ado arrive at the aforesaid findings which the Plaintiffs will highlight hereunder and enable cognizance of the crimes and injustice occasioned by the Defendants 4, 5 and 6 against the deceased Ronald James Ringrow and most particularly the Plaintiffs themselves. The deed of Cancellation is undoubtedly the product of fraud, coercion, undue influence and such other importunity as took away the free agency of the Executant/Testator and is therefore void ab initio. It is a fabricated, concocted and fraudulent piece of work and manifests to the very hilt the fraud played and exercised by the 83 OS No.25227/2009 Defendants 4, 5, and 6 on the deceased Ronald James Ringrow. Section 61 of the Indian Succession Act, 1925 which has intrinsic application to the making, execution and attestation of this document being mandated by the provisions of Section 70 of the Indian Succession Act,1925 provides total support to the contentions of the Plaintiffs in this regard. Section 61 of the Indian Succession Act, 1925 is extracted and reproduced hereunder for ready reference.
Section 61 of the Indian Succession Act,1925. 61 Will obtained by fraud, coercion or importunity. --A Will or any part of a Will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void.
In context of what is stated in the paragraph (73) immediately herein supra these Plaintiffs submit with deep respect that on her own admission the Defendant No.4 became acquainted with the deceased Ronald James Ringrow a short period of time before premises bearing Old No.5 and New No.10, Eagle Street, Langford Town, Bangalore-560 025 came to be allegedly sold, transferred, conveyed and assigned to her and her daughter the Defendant No.5- Sharon Mascarenhas in one half undivided shares. These sales were concluded in their favour on 19/10/2000. The material on record manifests that the alleged Agreements of Sale that came to be concluded in 84 OS No.25227/2009 this regard on 31/08/2000 against payment of a token advance of Rs.10,000/- (Rupees ten thousand only) each, in cash by the Defendants 4 and 5 to the deceased Ronald James Ringrow and that further thereto a Public Notice of intent to purchase the immovable property referred to herein came to be issued by the aforesaid intending Purchasers immediately prior thereto i.e. on 30/8/2000 which action undertaken by the Defendants 4, 5 and 6 is an unconventional one and points to the lack of probity in the Defendants 4, 5 and 6 vis a vis the alleged sale and conveyance of the composite property at Old No.5 and New No.10, Eagle Street, Langford Town, Bangalore-560 025 in their favour more particularly the Defendants 4 and 5. The date on which the Agreements to Sell were allegedly entered into between the deceased Ronald James Ringrow and the Defendants 4 and 5 is also not forthcoming in the recitals of the Sale Deed as per Exhibits D-3 and D-4 and the shifty and suspicious nature of the said Sales thus rears its vicious head. The association of the deceased Ronald James Ringrow and the Defendants 4, 5 and 6 could thus safely be assumed to have commenced in mid August 2000 by virtue of the recitals in Exhibit D-3 and D-4 both dated 19/10/2000. That as in mid August 2000 the deceased had made and executed his last Wills and Testaments on 29/1/1998 one of which said testamentary documents came to be registered in the office of the Sub Registrar of Assurances, Shivajinagar, Bangalore at 85 OS No.25227/2009 No.352/1997-98 in Book III, Volume 131 Pages 213 to 220. The aforesaid Will dated 29/1/1998 which was made, executed and attested in severalty was an explicit declaration and exposition of the financial status of the deceased Ronald James Ringrow and manifested his assets and liabilities in all respects and also predicated the manner in which he desired disposition of the same solely in favour of his near and dear ones and surviving consanguine relatives and those who had been of assistance and support to him during his last phase of life. Every asset, movable and immovable was documented therein and the deceased Ronald James Ringrow had also made reasonable provisions therein for discharge of any costs attaching with his death bed medical treatment and for his funeral and attaching religious obsequies. The fore-sightedness of the deceased and his deep appreciation of what his Executrices and Executors would be confronted at the time of his death and the provisions he made in his Will to mitigate the same and thus reduce the hardships and burdens his Executrices and Executors would face, proved him to be a person of exceptional stature and propriety and acumen and his "stable" was duly cleaned up and readied for entry thereto by his testamentary heirs, mainly being his natural heirs. A comprehensive, fair, just and all encompassing last Will and Testament was thus made by the deceased Ronald James Ringrow and most significantly and in keeping with his precision for detail in severalty. There were 86 OS No.25227/2009 thus in effect more than one original of the Will dated 29/1/1998 of the late Ronald James Ringrow. The aforesaid Will dated 29/1/1998 notwithstanding the meticulous and comprehensive manner in which it was drawn very regrettably proved to be the "Road Map" for the Defendants 4, 5 and 6 and the very key to the treasures of "Ronald Baba" for by 6/2/2002 less than eighteen months after the same was made it was sought to be nullified and rendered unenforcible and of no consequence to anybody on this earth other than the Defendants 4, 5 and 6 who had just come on the scene pregnant with criminal intents and motives. This was definitely not what Ronald James Ringrow would ever have wanted or contemplated and were factors which point solely at exercise of fraud, coercion, undue influence and other importunity which took away the free agency of the Testator Ronald James Ringrow and which results came to be achieved via the medium of the Deeds of Cancellation on 5/2/2002 and 6/2/2002 the latter of which came to be registered in the office of the Sub Registrar of Assurances, Shivajinagar, Bangalore at document No.301/2001-02 in Book III, Volume No.156, Pages 247 to 248 though not in accordance with law and enforcible thereunder. In the humble and considered opinion of the Plaintiffs and borne out by the evidence and documentary material on record, the aforesaid Deed of Cancellation was nothing more than the culmination of a fraud exercised by the 87 OS No.25227/2009 Defendants 4, 5 and 6 on the deceased Ronald James Ringrow containing a series of such nefarious and unjust transactions of different hues though with the same intent and purpose engineered by the Defendants 4, 5 and 6 herein. The participants in this string of frauds are obviously also the other Defendants in the above case and their participation and the nature thereof will be highlighted at the relevant and appropriate stage hereinafter.
The Learned counsel for plaintiffs further argued that the Deed of Cancellation dated 6/2/2002 particularized herein supra is void ab initio and cannot therefore revoke absolutely and forever either in part or in entirety the Will dated 29/1/1998 of the late Ronald James Ringrow is thus the sole feature of the aforesaid deed of Cancellation dated 6/2/2002 being the product of fraud, coercion, undue influence and other importunity which vitiated the same and could not therefore in law or in fact be deemed to have cancelled and/or revoked the Will dated 29/1/1998 of the deceased Ronald James Ringrow referred to herein supra. A grant of Probate of the aforesaid Will to the First Plaintiff herein is thus an imperative necessity and mandates the decreeing of the above Testamentary Original Suit as prayed for initially. In continuation of what is stated herein supra the Plaintiffs submit with deep respect that premises bearing Old No.5, New No.10, Eagle Street, Langford 88 OS No.25227/2009 Town, Bangalore-560 025 was the ancestral home of the Ringrows from the year 1946. The older generation of Ringrows had passed on together with the sibling Edward John Ringrow (Junior), of the deceased Ronald James Ringrow. Only the late Ronald James Ringrow was the occupant of the aforesaid property a portion of which had been alienated several years in the past. His sibling the Plaintiff No.2 had migrated to Australia and was resident there with her family having also acquired Australian Nationality. She had virtually nothing to do in the matter of the sale of the aforesaid property to the Defendants 4 and 5 herein. She blindly trusted the deceased without then realizing that he was under the evil and undue influence and overwhelming domination of the Defendant No. 4 and her children. In the year 2000 Ronald James Ringrow was aged eighty years and more and being resident and domiciled in his ancestral home for almost six decades and in frail health there was obviously no need or requirement for him to vacate his ancestral home and move elsewhere. He was not under a threat of eviction and going by the material and evidence on record was happily cocooned in his home. His then recently made last Wills and Testaments manifested Ronald James Ringrow was comfortably placed on all counts and most of all that he was debt free and not in dire financial straits was manifested by the aforesaid Will. The need to sell his home and go elsewhere was never a feature present in the mental frame 89 OS No.25227/2009 work of the deceased Ronald James Ringrow. Hence Exhibits D- 3 and D-4 fraudulently recorded at Page 4, thereof, respectively, as follows, viz. -
" WHEREAS the Vendors are in urgent need of funds for their legal necessities offered to sell an undivided share, title and interests in the Schedule "A" Property which is more fully described in the Schedule "B" hereunder, free from encumbrances, to the purchaser herein for a total sale consideration of Rs.22,50,000/- (Rupees twenty two lakhs fifty thousand only). The Purchasers agreed to purchase the Schedule "B" Property, for the said price free from all encumbrances"
That the aforesaid similar recitals in the Deeds of Sale as per Exhibits D-3 and D-4 are absolutely fraudulent and fictitious is borne out by the Wills dated 29/1/1998 which explicitly manifested that the deceased Ronald James Ringrow did not have any undue financial commitments and further the Plaintiff No.2 who was resident in Australia was enjoying happily her retirement benefits and life in retirement and also did not have any undue financial commitments. On the home front too, the deceased was comfortable and happily placed.
90OS No.25227/2009 The need to sell the immovable property in question to the Defendants 4 and 5 was thus not a factor that could be alleged to have prompted the Sale of the property at New No.5, Old No.10, Eagle Street, Langford Town, Bangalore-560 025 to the Defendants 4 and 5 herein. Further the Defendants Nos. 4 and 5 were also without the funds necessary to purchase the aforesaid property and had to admittedly secure a Loan from the Karnataka Bank, Madikeri Branch, Kodagu District in a sum of RS.54 lakhs (Rupees fifty four lakhs only), to meet the costs attaching with the two Sales as per Exhibits D-3 and D-4 which compositely are as follows:-
a) Sale Price Rs.45,00,000/-
b) Registration Charges Rs. 1,39,900/-
c) Stamp duty paid Rs.59,900/-
d) Deficit Stamp Duty Rs. 8,00,000/-
Total Rs.5499,800/-
The aforesaid financial aspects of the Sales as per Exhibit D-3 and D-4 are manifested by the very Exhibits as per D-3 and D-
4. The recitals in the Wills dated 29/1/1998 of the deceased must thus be regarded and considered with extreme care and precision by this Hon'ble Court for they will reveal the truth and establish the long term fraud and conspiracy played on the deceased by the Defendants 4,5 and 6 and presumably others herein. A minute consideration of the demand drafts issued by 91 OS No.25227/2009 the Karnataka Bank, Madikeri Branch, Kodagu District to meet the costs referred to herein supra unquestionably manifest the same to have been drawn and issued by the Karnataka Bank, Madikeri Branch, Kodagu District on 18/10/2000. The deeds as per Exhibit D-3 and D-4 were presented for registration on 19/10/2000 on which very day/date the deficit stamp duty of Rs.8,00,000/- was levied, paid and collected by the Deputy Commissioner, State of Karnataka who at Appendix CA-1491 and Appendix CA 1492 has certified in respect of each of the aforesaid Exhibits that he has recorded that under Section 41 of the Karnataka Stamp Act, 1957 for the purposes of Section 34-39 of the Karnataka Stamp Act, 1957, determined that a sum of Rs.4,00,000/- (Rupees four lakhs only) being the deficit/proper stamp duty payable by the Fourth Defendant and Fifth Defendant respectively in respect of each of the aforesaid transactions and that the same has been remitted to the RBI/SBI by the Defendants 4 and 5 respectively in respect of Document Nos. 2397/2000-20001 and No. 2398/2000 - 2001 establishing the prior knowledge thereby in the minds of the Defendants 4 and 5 that the sale transactions in question were grossly undervalued and was known to them for they purchased the said Demand drafts to defray these deficit payments a day before the determination of the Market Value of the immovable property constituting the subject matter of these sales were made which was compositely in the region of 92 OS No.25227/2009 Rs.90,000,00/- as on a conservative basis projected by the Official Authorities on the Karnataka Guideline Market Values. Preparation for this eventuality was manifested by these aforesaid acts of the Defendants 4,5 and 6 and clearly establishes the fraudulent manner in which the aforesaid Defendants were dealing with the deceased Ronald James Ringrow all through their association with him. For no apparent reason a lifetime of love and affection for his own very near and dear was "supplanted" with that allegedly for the Fourth Defendant herein a contention extremely hard to believe in the light of the facts and circumstances attaching with the deceased and admittedly without provocation for the allegedly hostile disposition towards them and more so in the light of the contentions of the Fourth Defendant herself who in contradiction of terms has also contended that her association of the deceased was nominal and extended to and encompassed merely the commercial transaction that was concluded by her and daughter with him. That the aforesaid Certification manifests that the Market Value of the property conveyed under the aforesaid documents respectively was not Rs.22,50,000/- (Rupees twenty two lakhs fifty thousand only), each and Rs.45,00,000/- (Rupees forty five lakhs only) compositely but in excess of Rs. 22,50,000/- ( Rupees twenty two lakhs and fifty thousand only ), each, and at Rs. 45,00,000/- each as deficit stamp duty in respect of each of the 93 OS No.25227/2009 two deeds at Ex D-3 and D-4 was required to be paid by the Purchasers thereunder, viz the Defendant No.5 and Defendant No.5 herein. The deficit Stamp Duty payable on each of the two transactions was Rs.4,22,950/- ( Rupees for lakhs, twenty two thousand nine hundred and fifty only) and compositely Rs.8,45,900/- (Rupees eight lakhs, forty five thousand nine hundred only). The Market Value of the transaction at Rs.22,50,000/- in each of the documents as per Ex D-3 and D-4 was thus wholly inadequate and the ultimate amount of stamped duty paid manifests the real and official Market Value of the properties conveyed and must be in the region of RS.45,000,00/- ( Rupees forty five lakhs only ), each and compositely RS.90,000,00/- ( Rupees Ninety lakhs only). The properties conveyed as per Ex D-3 and D-4 were thus "purchased" for value far below the accredited Market Value of the said properties as on the date of the conveyance of the same to the Defendant Nos.4 and 5 and is a suspicious circumstance and points to criminality and fraud in the overall scenario of the facts and circumstances attaching with the living and existence of the deceased Ronald James Ringrow and the revocation and cancellation of his Last Wills and Testament and the wrongful appropriation and misappropriation of his financial securities and Bank Accounts. An elderly man, isolated, lonely, feeble and without proper legal advice or assistance was cheated and taken undue 94 OS No.25227/2009 advantage of by sheer fraud. That the Defendants 4 and 5 were fully aware of the Market Value of the property that they were arranging to have conveyed to themselves and that the same was well within their knowledge and that they were in effect knocking of the same far below the Market Value thereof is borne out by the purchase of the Demand Drafts/Bankers cheques towards deficit stamped duties a day before the execution and registration of the deeds as per Exhibit D-3 and D-4 were actually presented for registration thus investing knowledge in the Defendants that the transaction in question were grossly undervalued which was obviously known to them long before then and that the transactions in question were in effect absolute shams and blatant acts of fraud and criminality. Further at Page (8) of each of the aforesaid deeds as per Ex D- 3 and D-4 the following recital is incorporated therein, viz:-
"The Vendors have this day delivered the vacant possession of the Schedule "B" Property to the Purchaser and Purchaser acknowledges the receipt of the vacant possession of the Schedule "B"
Property."
Plaintiffs submit that the aforesaid recital in the aforesaid deeds as per Ex D-3 and D-4 was entirely fraudulent in nature and far from the truth. Ronald James Ringrow never vacated the property in question and neither did he deliver vacant possession thereof to the Defendants 4 and respectively. The Death Certificate manifested that he on 25/10/2004 died in his home which is the Schedule "A" Property as per Ex D-3 and D-4. The sales as per Ex D-3 and D-4 are thus null and void and their nullity, respectively, is manifested on the very face of these documents and the attaching facts of the case. That the need for Ronald James Ringrow to sell the property dated Old No.5, New No.10, Eagle Street, Langford Town, Bangalore-560 025 was a non existent fact is borne out by the very deeds of sale as per Ex D-3 and D-4. More importantly the aforesaid Exhibits manifest that the deceased Ronald James Ringrow was under the overwhelming and overreaching domination of the Defendants 4, 5 and 6 and the victim of fraud, undue influence, coercion and other importunity exercised upon him and establishes unquestionably that the Deed of Cancellation (Revocation) was the product of fraud, undue influence, coercion and such other importunity that rendered the same void ab initio and of no consequences or legal effect vis a vis the Will dated 29/1/1998. The document was created to buttress and enable the commission of the 96 OS No.25227/2009 fraud that was conceived by the Defendants 4, 5 and 6. Plaintiff further submits that the following recital was also incorporated in each of the deeds as per Ex D-3 and D-4, viz:-
" The Vendors further covenant with the Purchasers that in case the Purchasers is deprived of the whole or any part of the Schedule "B" Property hereby sold by the reason of any defect found in the title of the Vendors or any encumbrances or any charges in the same of which this sale is not subjected the Vendors shall pay to the purchaser by way of damages or otherwise the whole of the sale price or such part of it as shall the same proportion of the which or such part of the schedule property as the case may be and also all consequential losses and damages"
It is further submission of the Learned counsel for plaintiffs that the Defendants 4 and 5 were brazenly making provisions in the aforesaid deeds to ensure that they got their money back in the event of the discovery of the fraud played on the deceased Ronald James Ringrow and the Plaintiffs by them. Though the deceased Ronald James Ringrow lived for more than four years after the properties referred to herein supra 97 OS No.25227/2009 came to be sold by him, allegedly, he did not take any steps to move into alternate accommodation or acquire an alternate residence. He continued there as though nothing had happened clearly manifesting the fraud played on him and his deteriorating state of mind. Also the Defendants 4, 5 and 6 did not take any steps to actually appropriate their property for acquisition of which they had taken a massive loan. This was another suspicious circumstance in the aspect of the case relating to the making and execution of the Cancellation / Revocation Deed. It is also to be noted that the accredited position of law, particularly in Hindu Law, the purchaser of immovable property alienated to him on account of legal necessity is required to follow up this issue post completion of the transaction and confirm for himself that the legal necessity in question was duly eradicated, liquidated and nullified with the funds provided by him as Sale consideration. No such feature appears in the instant case. Most significantly it is to be noted that the proceeds of the Sales in question were invested in Capital Gain Exemption Schemes once more underlying the fact that there was no need for the Sales as per Exhibit D-3 and D-4 which were in reality sham transactions to enable conveyance of the properties forming the subject matter of the aforesaid sales in favour of the Defendants 4 and 5 herein. That the Deed of Cancellation dated 6/2/2002 is fraudulent is established by this fact and manifests the total lack of 98 OS No.25227/2009 advertance of his actions on the part of the deceased Ronald James Ringrow vis a vis the same. The Will dated 29/1/1998 of the deceased Ronald James Ringrow was thus neither in fact or in law revoked by the Deed of Cancellation dated 6/2/2002 inter alia on account of its fraudulent nature. That the Deed of Cancellation (Revocation) was brought into existence for the sole purpose of negating the legacies to the testamentary heirs of the deceased Ronald James Ringrow under his last Will and Testament dated 29/1/1998 and to ensure that his entire disposable Estate accrues to the benefit of the Defendants 4, 5 and 6 under the Machiavellian and diabolical scheme of fraud that they had created and fabricated in this regard. Further it was conceived to preclude controversies post the demise of the deceased Ronald James Ringrow. Ademption of legacies was secured by fabrication of life time transfers via the conveyances as per Exhibits D-3 and D-4 and by fraudulent appropriation of monies of the deceased Ronald James Ringrow rendered joint as a result of Either or Survivor Accounts and by alleged testamentary succession thereto on account of alleged nomination of these other Bank Accounts in favour of the Fourth Defendant and her children that has not in law "flowed" to them in terms of the aforesaid nominations allegedly devised to benefit her. The need for testamentary disposition vis a vis the Estate of the deceased was thus attempted to be legally nullified by the Defendants 4, 5 and 6 undoubtedly for 99 OS No.25227/2009 their joint and several benefits and the criminal intent of the Defendants 4, 5 and 6 manifested expressly in their Written Statement and in the last paragraph of Page 16 concluding on the succeeding page thereof wherein they have jointly and severally stated as follows:-
"It is submitted that the Plaintiffs claim that they want probate/letter of administration on the basis of the Will dated 29/1/1998. That can be done if there is a Will subsists left behind by Ronald James Ringrow. Perhaps it is a condition precedent. In the light of the document dated 6/2/2002 the Will dated 29/1/1998 had come to an end (revoked). In view of the said fact issuing a letter of administration in favour of the Plaintiffs does not arise. The Plaintiffs with the sole intention of harass these Defendants has made a frivolous suit before this Hon'ble Court"
It is further argued that the dominance exercised over the deceased by the Fourth Defendant manifested by her in the Written Statement and in her Examination in Chief and the extensive Cross Examination effected by the Plaintiffs projects and confirms her interference and participation in virtually every aspect of the day to day life of the deceased confirming exercise of fraud, coercion, undue influence and such other 100 OS No.25227/2009 importunity which vitiated these aforesaid acts and as the free agency of the deceased was totally absent and the said deceased merely featured as a puppet of the Fourth Defendant, her children and uncle Faustin D'Souza. The evidence on record manifests and establishes that the Fourth Defendant aided and abetted by the Defendants 1, 2, 3, 5, 6 and 7 inter meddled with the Bank Accounts and finances of the deceased, ensured that she had control over them and finally under impression that she could lay hands on them by virtue of nominations fraudulently processed also went to the extent of hastily, in the very lifetime of the deceased withdrawing large sums of money therefrom which she transferred to and parked in her private accounts in other Banks. The admissions of the Fourth Defendant in this regard made during the very initial part of the Cross Examination effected on her on 22/10/2019 manifests this blatant, emboldened fraudulent, unwarranted and dishonest conduct of the Fourth Defendant which goes to the very root of the matter and exposes the guilty mind/ mens rea of the said Defendants 4 to 6. The very Exhibits marked by her and also produced by her manifest fraudulent removal of monies from the Bank Accounts of the deceased. {See Exhibit D- 6}. The Will dated 29/1/1998 was drawn under the very instructions of the deceased Ronald James Ringrow. The Plaintiffs had no hand or participation of any nature in this regard. Hence to accuse the 101 OS No.25227/2009 Plaintiffs of not being properly acquainted with Ronald James Ringrow for allegedly being unaware as to who the recipient of the sum of Rs.10,000/- deposited with the Methodist Church by late Ronald James Ringrow is a perverse accusation made in sheer ignorance of Christian rites and religious practices. A mere cursory consideration of the Will, will manifest the use to which this sum of money was to be put and was certainly not a legacy payable to an undisclosed beneficiary. Plaintiffs in continuation of what is stated herein submit that the hospitalization and medical treatment accorded to the deceased in his last year was entirely monitored and supervised by the Fourth Defendant and his funeral and burial were organized by her. She also ensured that the First and Second Plaintiff remained out of the loop by causing the cancellation of the Joint Accounts created by the deceased with them to ensure that he was isolated in every manner. Her uncle Faustin D'souza who the deceased had absolutely no association with all through his long life was now in the picture and besides the deceased at all relevant times to ensure that the deceased did not reveal the facts of the fraud played on him or provide leads and clues that could expose the same during his lifetime. All former friends and acquaintances were banned visits to the deceased and a false plea that the deceased was unhappy with his close relatives was sought to be urged fraudulently without documentation or proof of the 102 OS No.25227/2009 same. It is the mere ipsi dixit of the Fourth Defendant, totally bereft of merit and truth. No details of the legal necessity allegedly predicating the Sales of the properties as per Exhibit D-3 and D-4 were placed before this Hon'ble Court during the trial and arrangements for payment of the necessary Capital Gains Taxes or a feature vis a vis the Sale proceeds under Exhibit D-3 and D-4. Four years had elapsed since the sales in question were concluded without resort to Income Tax Capital Gains issues. Why the deceased wanted a change in the persons who were to act vis a vis his Bank Accounts was not placed before this Hon'ble Court. None of the maid servants were examined to establish removal of the furniture of the deceased from his home post his demise and as per his alleged instructions clearly establishing the falsity of these claims. That Dr R.Shankar Prasad was a collaborator of the Fourth Defendant is more than apparent by his conduct of allegedly attesting the Cancellation Deed on 5/2/2002 and 6/2/2002. The Fourth Defendant was obviously putting into play the Golden Rule which is as follows:-
"The Golden Rule in England for making a doctor as a witness to Wills of extremely old and sick"- In England it was thought to be a golden rule that when a solicitor was drawing up a Will for an aged testator or one who has been seriously ill, it should be witnessed or approved by a medical practitioner, who ought to 103 OS No.25227/2009 record his examination of the testator and his findings, as evidence of capacity should the matter be challenged later. This is no more than a useful guide but not a substitute for the established tests for mental capacity.
The Cancellation of the Will dated 29/1/1998 vide the Deed dated 5/2/2002 and 6/2/2002 being unsustainable and untenable in law is thus an irresistible inference that is occasioned by what is stated herein supra. Plaintiffs notwithstanding what is stated herein supra and in continuation thereof submits with deep respect that the Fourth Defendant during the course of her Cross Examination has approbated and reprobated on innumerable occasions and has projected blanket denials or lack of knowledge of crucial details and loss of memory to evade coming out with the truth. This style of deposition leads to the irresistible and sole inference that the Fourth Defendant was prevaricating or being evasive with a view to preclude explicit self incrimination and exposure of the truth which was even otherwise self evident. The oral evidence adduced by the Fourth Defendant must thus be examined minutely and sifted with great care as it was the product of an untrustworthy witness and projects mens rea at every stage of the way thereof. Her evasive answers and voluntary explanations recorded from time to time during the 104 OS No.25227/2009 course of her evidence is also proof of the shifty and devious nature and disposition of the Fourth Defendant inter alia, as D.W No.1 and the obvious attempt on her part to cover her tracks. The Deed of Cancellation did not manifest in any manner an intent in the deceased to revoke the Will dated 29/1/1998 registered as document No.352/1997-98 and particularized herein supra, of the said deceased Ronald James Ringrow which was merely termed a Deed of Cancellation and not one of Revocation. It is also to be noted that in the Written Statement the Defendants 4, 5 and 6 have not pleaded the necessary ingredients of a Revocation of a Will when undertaken by a Written document and thus cannot be heard in this regard at this stage of the proceedings. None of the ingredients of Section 70 of the Indian Succession Act, 1925 attach with the Deed of Cancellation dated 5/2/2002 and 6/2/2002. A mere bald assertion that the Will dated 29/1/1998 of the late Ronald James Ringrow was cancelled, revoked by the said Ronald James Ringrow on 6/2/2002 vide the registered deed of Cancellation as per Exhibit D-1 and D-2 will not suffice to revoke his aforesaid Will in the manner predicated in law i.e. Section 70 of the Indian Succession Act, 1925. There cannot be variance between pleadings and proof is a fundamental aspect and principle of the procedural law known as the Code of Civil Procedure, 1908 and the Defendants 4, 5 and 6 inter alia other Defendants cannot thus be heard in support of the Revocation 105 OS No.25227/2009 of the Will dated 29/1/1998 in any manner whatsoever. They cannot seek to create a case at this stage which was significantly not pleaded by them either explicitly or impliedly. This Hon'ble Court is thus bound in law and in fact to hold and find in favour of the Plaintiffs that the Will dated 29/1/1998 of the late Ronald James Ringrow was never revoked in law and in fact and thus subsists as on date with the consequential right to a grant of Probate in respect thereof to the First Plaintiff herein. That inter alia the fraud, coercion, undue influence and other importunity that was exercised on the deceased Ronald James Ringrow, the said deceased was also subjected to undue influence by the Fourth Defendant and her collaborators of the severe medical condition that he was afflicted with viz the enlarged Prostate Gland which on account of its said enlargements and irritation of the deceased's urethra caused him to manifest an enlarged sexual libido and which largely prompted the deceased to manifest in large extents a condition known as "Satyriosis" which the Fourth Defendant is known to have taken advantage of and which said undue influence is accepted in law to constitute loss or diminution of testamentary capacity an absolutely necessary ingredient for execution of a Revocation of the Will and Testament of the deceased Ronald James Ringrow dated 29/1/1998. The deeds of Cancellation dated 5/2/2002 and 6/2/2002 are thus void ab initio and have absolutely no legal or other effect vis a vis the 106 OS No.25227/2009 Will dated 29/1/1998 of the deceased Ronald James Ringrow. The suit as instituted by the Plaintiffs must thus be decreed as prayed for. That on her own admission whether in the pleading or in the course of her oral examination before this Hon'ble Court or in the documentary Exhibits marked by her the Fourth Defendant has clearly and explicitly manifested that she was in a position of active confidence with the deceased Ronald James Ringrow notwithstanding his medical condition and in other words in a fiduciary relationship with him in the light of the provisions of Section 111 of the Indian Evidence Act, 1872 and the good faith of the transaction that she had jointly entered into with him, through him, for him on his behalf and in his interests and in law and in fact had be established by the Fourth Defendant and Fifth Defendant which they have blatantly and patently failed to do so in the case before this Hon'ble Court. The provisions of Section 111 of the Indian Evidence Act, 1872 are extracted and reproduced hereunder for ready reference.
Section 111 of the Indian Evidence Act, 1872 Proof of good faith in transactions where one party is in relation of active confidence.--Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the 107 OS No.25227/2009 transaction is on the party who is in a position of active confidence. Illustrations
(a) The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney.
(b) The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the transaction is on the father.
For assessing the mental capacity vis a vis the Deed of Cancellation the Fourth Defendant is required to prove
(i) Understanding that makes the Cancellation and Revocation,
(ii) Reasons and its effect,
(iii) Appreciation of the extent of his assets and liabilities if any, and
(iv) Consideration of the potential beneficiaries as a fact and objective way and condition that may effect his or her judgment.
The Fourth Defendant has failed to prove mental capacity in the deceased Ronald James Ringrow as on 5/2/2002 and 6/2/2002 when he allegedly made and executed the Deed of Cancellation. In the light of what is stated in the foregoing two 108 OS No.25227/2009 paragraphs the Plaintiffs submit with deep respect that the Fourth Defendant has miserably failed to prove that the Will dated 29/1/1998 of the deceased Ronald James Ringrow was cancelled/ revoked by him in the manner predicated in law. The Will dated 29/1/1998 of the deceased Ronald James Ringrow registered as document No.352/1997-98 in Book III, Volume 131 Pages 213 to 220 if the Office of the Sub Registrar of Assurances, Shivajinagar, Bangalore thus subsists and was never affected in any manner by the Deed of Cancellation dated 5/2/2002 (allegedly in draft) and at document No.301/2002-2003 in Book III, Volume 156, Pages 247 to 248 in the Office of the Sub Registrar of Assurances, Shivajinagar, Bangalore as the same was a nullity. The above suit must thus be decreed as prayed for. In context of what is stated immediately herein supra the Plaintiffs draw the attention of this Hon'ble Court once more to the provisions of Section 70 of the Indian Succession Act, 1925 which are again extracted and reproduced hereunder for ready reference Section 70 of the Indian Succession Act, 1925
70. Revocation of unprivileged Will or codicil.
--No unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the 109 OS No.25227/2009 manner in which an unprivileged Will is herein before required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same and the judgment of the Hon'ble Supreme Court of Indian in AIR 1977 Supreme Court Page 74 in the case of Jasmeet Kaur Versus Amrit Kaur, the Head Note of which is as follows:-
Succession Act (1925), S. 70 - Will - Revocation. The revocation of an unprivileged will is an act only a little less solemn than the making of the will itself and has to comply with statutory requirements contained in S. 70 of the Succession Act. (Para 5) There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venktachala Iyengar v. B. N. Thimmajamma, (1959) Supp (1) SCR 426 = (AIR 1959 SC
443). The Court, speaking through Gajendragadkar J. laid down in that case the following propositions:-
1. Stated generally, a Will has been proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of 110 OS No.25227/2009 proof of Wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a Will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will and testament of the testator. Normally the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in making of the Will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the 111 OS No.25227/2009 Will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in sound and disposing state of mind and memory at the time when the Will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the Will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
5. It is in connection with Wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved.
That test emphasis that in determining the question as to whether an instrument produced before the court is the last Will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the Will has been validly executed by the testator.
6. If a Caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the Will, such pleas 112 OS No.25227/2009 have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may be raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
The Learned counsel for plaintiffs argues that the citation manifests the prevailing position of law vis a vis Section 70 of the Indian Succession Act, 1925 which mandates that the Revocation of a Will must be effected in the very manner in which a Will of a Testator must be made, executed and attested. A consideration of the facts and circumstances attaching with the above case will manifest the failure on the part of the Defendants 4, 5 and 6 to establish making, execution and attestation in draft or in reality and effect to be in accordance with the accredited and laid down law of the Hon'ble Supreme Court of India also manifested by the following decisions :-
a) AIR 1959 SC 443
b) AIR 1979 SC 145
c) AIR 1941 Madras 612
d) AIR 1977 SC 74 The Deed of Cancellation of the Will dated 29/1/1998 is therefore void ab initio and not enforceable in law and in fact.113
OS No.25227/2009 The above suit must thus be decreed as prayed for. Notwithstanding what is stated herein supra, Plaintiffs submit with deep respect that Section 62 of the Indian Evidence Act, 1872 is as extracted and reproduced hereunder for ready reference:-
Section 62 of the Indian Evidence Act, 1872 Primary evidence.--Primary evidence means the document itself produced for the inspection of the Court. Explanation 1.--Where a document is executed in several parts, each part is primary evidence of the document; Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. Explanation 2.--Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original. Illustration A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no 114 OS No.25227/2009 one of them is primary evidence of the contents of the original.
A consideration of the facts and circumstances of the aforesaid case will manifest that in addition to EX D-8, the deceased had immediately thereafter made and executed another Will as per EX P-2 which was drawn, executed and attested in the very manner in which Ex D-8 was made, executed and attested. The parties to the transaction as per Ex P-2 are the same as per Ex D-8 and have executed/ attested Ex D-8 and by the same process. The Will as per Exhibit P-2 is thus an original and having been made post Ex D-8 as borne out by the word "copy" thereon is in law and in fact the last Will and Testament of the deceased Ronald James Ringrow which was also never revoked by the deceased Ronald James Ringrow. In this regard, the Plaintiffs draw the attention of this Hon'ble Court to the judgment of the Hon'ble High Court of Allahabad reported in AIR 1983 Allahabad Page 90 in the case of Smt Kamala Rajamanikham, Appellant Versus Smt. Sushila Thakur Dass and others, Respondents, and more particularly Head Note (B) thereof which is extracted and reproduced hereunder for ready reference;-
(B) Evidence Act (1 of 1872/S.62) The Wills in identical language prepared by process of typing and obtaining copy of putting Carbon- Each Will 115 OS No.25227/2009 executed by testator and attested by witnesses- Each one is original Will.
Two Wills in identical language prepared by the process of typing in which the second copy was obtained by a carbon impression. Both these will having identical language were duly executed by the testator and also attested by the attesting witnesses in accordance with law.
Held, none of them can be said to be a copy of the other within the meaning of S.62 and both of them must be treated as original wills. Merely because the contents of one of such wills was obtained through the use of carbon paper, the one prepared on the carbon impression and will not become a copy and either of them could be used as primary evidence. Nor the fact that on one of such original wills the words "true copy" had been subsequently appended by the testator (after the same had been executed in accordance with law) would turn it into a mere copy of the original. AIR 1937 Mad 807 and AIR 1958 Cal 517 Distinguished.(Paras 6, 8) Learned counsel for Plaintiffs also draw the attention of this Hon'ble Court to the judgment of the Hon'ble Supreme Court of India (Civil Appellate Jurisdiction) Civil Appeal No.(s) 6706/2013 in the case of Mohinder Singh, Appellant Versus Jaswant Kaur 116 OS No.25227/2009 (D) the LRS- Respondent, which is reproduced hereunder for ready reference:-
ORDER This appeal is directed against the judgment dated 15/01/2009 passed by the Punjab and Haryana High Court dismissing the appeal holding that there is no substantial question of law involved. The High Court held that a carbon copy of a document which carbon copy is signed by both the parties cannot be termed as an original document under Section 62 of the Evidence Act. This finding of the High Court is absolutely incorrect and against the provisions of Section 62 of the Evidence Act. This carbon copy was prepared in the same process as the original document and once it is signed by both the parties, it assumes the character of the original document.
On this short ground, we allow this appeal and remit the matter to the High Court. We make it clear that we have not expressed any opinion on the merits of the dispute. It is for the High Court to decide whether any substantial question (s) of law arises and the appellant before us is entitled to any relief or not.
With these observations, the civil appeal is disposed of. Pending applications if any, stand disposed of.117
OS No.25227/2009 Sd/-
(Deepak Gupta) (Aniruddha Bose) NEW Delhi September, 11, 2019 Learned counsel for Plaintiffs further argues that Ex D-8 and Ex P-2 were made and executed successively. Ex D-8 preceding Ex P-2, Ex P-2 would thus in law, in reality and in effect be the last Will and Testament of the deceased irrespective of its execution on 29/1/1998 and non registration. Registration of a Will under the provisions of the Indian Registration Act, 1908 is not a mandatory requirement of a Will and is an option open to the deceased Testator. Hence even if the Will as per Exhibit D-8 were deemed to have been revoked by Ex D-1 and D-2, the original Will as per Ex P-2 would still subsist and stand unrevoked being created long after Ex D-8 borne out by the endorsement "copy" thereon. Hence even if EX D-8 is held to be revoked/ cancelled by this Hon'ble Court, the last Will and Testament of the deceased Ronald James Ringrow as per Ex P-2 must be held to be valid, authentic and subsisting. The above suit must thus be decreed as prayed for with the consequential direction and prayers considered fit and appropriate by this Hon'ble Court. Plaintiffs submit with deep respect that the Defendants seek to make out that the 118 OS No.25227/2009 proceedings in the above case are redundant, futile and will be infructuous for the reasons that the Will and Testament of the deceased Ronald James Ringrow dated 29/1/1998 registered as document No.352/1997-98 in Book III, Volume 131 Pages 213 to 220 in the office of the Sub Registrar of Assurances, Shivajinagar has been cancelled/revoked on 6/2/2002 and as all the assets constituting the disposable Estate of the deceased Ronald James Ringrow are adeemed within the meaning of the Indian Succession Act, 1925 the grant of Probate in respect of the Will dated 29/1/1998 referred to immediately herein supra cannot be made and in the absence of an Estate to administer, manage and control a grant of Letters of Administration is also not warranted. In this regard Plaintiffs submit with deep respect that by an unwarranted and unsustainable plea that the Fourth Defendant projected and was propounded by the Defendant 4,5 and 6 having been regarded by the deceased Ronald James Ringrow as a Nominee- Beneficiary or Nominee- Survivor in respect of his several Bank Accounts of whatever nature and by disposal of his movables as allegedly predicated in his lifetime, all the aforesaid financial assets accrue and belong to her in her aforesaid capacities of Nominee- Beneficiary and Nominee- Survivor. The Estate of the deceased Ronald James Ringrow was therefore a "bankrupt" one excluding and precluding the need for a grant of Letters of Administration or possibly a 119 OS No.25227/2009 Succession Certificate and consequently that the proceedings in the above case be dismissed summarily was thus mooted and urged by the contesting Defendants in this regard. Plaintiffs in context of what is stated immediately herein supra submit with deep respect that the Defendants contention vis a vis aforesaid "inheritance" by the Fourth Defendant of the financial assets of the deceased Ronald James Ringrow, is a grossly perverse, criminal and legally unsustainable one. Plaintiffs submit that the Defendants 4, 5 and 6 have falsely and incorrectly represented to this Hon'ble Court with regard to the inheritance allegedly received by the Fourth Defendant on account of being a Nominee- Beneficiary and/or a Nominee- Survivor. Plaintiffs submit these contentions in this regard are absolutely untenable and unsustainable in law and must be rejected summarily. The questionable and unacceptable nomenclature even if assumed to be valid and justiciable for purpose of argument without conceding the same do not predicate, facilitate and warrant appropriation of the said assets when such aforesaid Nominations are made by the very nominee/s therein. The nomination merely indicates the hand that may receive the benefit/proceeds payable under the relevant Deposit wherein the same are made BUT the Nominee does not derive any benefit thereunder and always remains a Trustee of these assets for and on behalf of the testamentary or natural heirs of the deceased Testator. Hence the Fourth 120 OS No.25227/2009 Defendant and her children have wrongfully appropriated the valuable financial assets of the deceased Ronald James Ringrow rightfully payable to the Plaintiffs and wrongfully deprived them of their just dues thereby and must also be prosecuted for forgery, breach of trust, criminal misappropriation, etc. The suit of the Plaintiffs must thus be decreed as prayed for and in the status as initially prayed for with consequential relief in the absolute discretion of this Hon'ble Court.
Learned counsel further argued that in substantiation of these contentions vis a vis "nomination" referred to herein supra the Plaintiffs draw the attention of this Hon'ble Court to the judgment of the Hon'ble Supreme Court of India, other High Courts in India and the Hon'ble High Court of Karnataka, itself. They are as follows:-
a) AIR 1984 Supreme Court 346
b) AIR 1985 Andhra Pradesh 321
c) (1917) ILR 40 Mad. 233
d) AIR 1956 Calcutta 275 In the light of what is stated herein supra, the above suit must be decreed with exemplary costs and the Fourth Defendant directed to render accounts and repay the nominees of the deceased Ronald James Ringrow what was rightfully owned by the Plaintiffs together with compensation and 121 OS No.25227/2009 damages that must be duly determined by this Hon'ble Court.
That the Sales of the immovable property of the deceased Ronald James Ringrow and the Second Plaintiff herein are void ab initio as the General Power of Attorney as per Exhibit D-7 has not been attested or authenticated or adjudicated within the meaning of Section 32 and 33 of the Indian Registration Act, 1908 and the Rules framed thereunder by the State of Karnataka titled the Karnataka Registration Rules, 1965. The Defendants 4, 5 and 6 at Pages 3 and 4 and Page 16 of their Written Statement have scandalized this Hon'ble Court and are liable to be proceeded against for commission of criminal contempt of Court. Plaintiffs have extracted and reproduced hereunder the offending remarks of the Defendants 4, 5 and 6 in this regard.
(a) Page 3 and Page 4 of the Written Statement "The Plaintiffs with the sole intention to grab the property of Defendants Nos. 4 and 5 have approached this Hon'ble Court with this frivolous suit seeking the aid of this Hon'ble Court for preservation and possession of the said property which was sold by him long prior to his death that too for value."
122OS No.25227/2009 The aforesaid remarks have lowered the prestige of this Hon'ble Court manifesting that it aids and assists wrong doers. The remarks are libelous and contemptuous in nature.
(b) Page 16 in Paragraph (1) " The Plaintiffs solely with an intention to confuse the mind of this Hon'ble Court have approached the Hon'ble Court by contending that the Will dated 29/1/1998 is subsisting and that they are entitled for a Letters of Administration on the basis of the same"
The aforesaid remarks have lowered the prestige of this Hon'ble Court by manifesting that it is weak minded, prone to mental confusion and improper appreciation of facts and law. The remarks are libelous and contemptuous in nature. The Defendants Nos.4,5 and 6 must be called upon to tender an unconditional apology for these aforesaid remarks and prosecuted for the same if they fail to do so. Notwithstanding anything herein contained Plaintiffs draw the attention of this Hon'ble Court to the provisions of Sections 415, 418, 420, 424, 463, 464, 465, 467, 468 and 477 of the Indian Penal Code, 1860 which are extracted and reproduced hereunder for ready reference. The same manifest commission of offences by the Fourth Defendant and her children and possibly other Defendants in the above case and which warrant their 123 OS No.25227/2009 prosecution and punishment for the same. The Complaint to the Hon'ble 29th ACMM, Mayo Hall, Bangalore is still pending disposal. Notwithstanding what is stated herein supra Plaintiffs submit that the entire extent of Evidence adduced by the Defendants has been a manifestation of the manner in which the movable and immovable assets of the deceased Ronald James Ringrow were appropriated by them and the wealth of evidence adduced by the Defendants in this regard serve only to establish their improper and questionable conduct vis a vis the deceased. The evidence both in examination in chief as well as cross examination must be considered in entirety for the same manifests the complete scenario of fraud exercised on the deceased. Plaintiffs have therefore to avoid prolixity in these written submissions have not adverted to particular extracts thereof and pray that this Hon'ble Court consider the same in totality as each and every aspect of this evidence establishes improper and illegal conduct of the Defendants 4, 5 and 6.
Learned counsel for plaintiffs further argues that in respect of Issue Nos.3 and 4, are concerned the Plaintiffs submit with deep respect that these Issues as manifested by their very content are to be addressed by this Hon'ble Court in the light of its findings on Issues Nos.1 and 2 in the above case. Plaintiffs submit that if this Hon'ble Court were to hold 124 OS No.25227/2009 that the Will dated 29/1/1998 of the late Ronald James Ringrow registered in the Office of the Sub Registrar of Assurances, Shivajinagar, Bengaluru as document No.352/1997-98 in Book III, Volume 131, Pages 213 to 220 was duly revoked by the deed of Cancellation dated 5/2/2002- 6/2/2002 registered in the Office of the Sub Registrar of Assurances, Shivajinagar, Bangalore, the Nett effect of this finding would be that the deceased died intestate and his disposable Estate would flow and devolve as per the provisions of Section 47 of the Indian Succession Acct, 1925 predicating the Grant of Letters of Administration in respect thereof in favour of the Second Plaintiff who is a natural heir of his and in view of her claims during the pendency of the above case and the fact that her biological daughter the First Plaintiff who is a natural heir of his and in view her demise during the pendency of the above case and the fact that her biological daughter the First Plaintiff is on record in her favour by application of the principles laid down by the Hon'ble Supreme Court of India in its judgment reported in AIR 1976 Supreme Court Page 49 in the case of Rameshwar v. Jot Ram, the Head Note "B" of which is as follows:
(B) Civil P .C - Right to relief - To be determined as on date of institution of proceedings - Court's procedural delays cannot affect rights crystallized in initial cause of 125 OS No.25227/2009 action - Power of Court to take note of subsequent events.
It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceedings. This is an emphatic statement that the right of a party is determined by the facts as they exist on the date the action is instituted. Granting the presence of such facts, then he is entitled to its enforcement. Later developments cannot defeat his right. The Court's procedural delays cannot deprive him of legal justice or rights crystallized in the initial cause of action.
Courts can, however, take note of subsequent events and mould the relief accordingly, but this can be done only in exceptional circumstances. Rights vested by statute cannot be divested by this equitable doctrine. AIR 1927 PC 252 and AIR 1966 Punj 374(FB), Approved.
The Defendants who are strangers and would by no stretch of imagination be regarded as natural heirs of the deceased Ronald James Ringrow would thus have no locus standi to oppose the Grant despite being in wrongful possession of the movable and immovable assets of the deceased Ronald James Ringrow in the manner indicated herein supra. Issue No.3 must 126 OS No.25227/2009 be held in favour of the Plaintiffs in the light of the findings of this Hon'ble Court on Issue No.1 against the Defendants and in favour of the Plaintiff. In the event of a finding on Issue No.1 going against the Defendants in the above case the Will dated 29/1/1998 registered in the Office of the Sub Registrar of Assurances, Shivajinagar, Bengaluru as document No.352/1997-98 in Book III, Volume 131, Pages 213 to 220, will be deemed to be the Last Will and Testament of the deceased Ronald James Ringrow and the First Plaintiff herein being one of the Executrices appointed thereunder would be entitled to a grant of Probate in respect of the same. In the light of the judgment of the Hon'ble Supreme Court of India reported in AIR 1954 Supreme Court Page 280 in the case of Ishwardeo Narain Singh Vs Kamta Devi and Others, which is as follows:-
(a) Succession Act (1925), S. 222 - Jurisdiction of Probate Court.
The Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. (Para 2) Anno : Succ. Act, S. 222 N. 1,5.
127OS No.25227/2009
(b) Succession Act (1925), Ss 63, 222 - Due execution of will - Proof of _ Effect of non- registration. A testator had no male issue but had only one minor daughter. His wife had predeceased him and he had not married a second wife. By his Will he made provision for the marriage of his daughter out of certain specified part of his estate. The rest of his properties he gave to Thakurji. The Will was not registered. It was also objected that it was an unnatural Will:
Held (1) that there was nothing unnatural or unofficious about the Will.
(2) That as there was nothing in law which requires the registration of a Will and as Wills are in a majority of cases not registered at all, to draw any inference against the genuineness of the Will on the ground of its non - registration was wholly unwarranted.
(3) That the Will in question was duly executed and probate should be issued.
The Defendant in the above case would have no locus standi to intervene in the matter as the Probate Court is solely concerned with the propriety of the Will propounded in a case before it and not the properties forming the Estate of the deceased.
128OS No.25227/2009 The citations recorded hereunder also advance this proposition of law and will substantiate the action of this Hon'ble Court in observance of the same. MFA No.6652/2016 (ISA) dated 5/1/2017 in the case of A.Ramamurthy and three others, Appellants Versus Nil, Respondent, which is reproduced hereunder in entirety:-
JUDGMENT The appellant has filed a petition under Section 222 and 229 read with Section 270 of the Indian Succession Act for grant of probate and letters of administration in favour of the appellant No.1 (Petitioner No.1 before the Trial Court) in respect of the schedule property more fully described in the petition. After registration of the case, it appears that joint notices were ordered by the Court by way of paper publication in two news papers. After compliance of all the legal requirements, the Trial Court proceeded to examine the petitioners and witnesses, who were examined as PWs.1 to 3 and got marked Exs.P1 and P2 as no persons entered appearance as respondents, the Trial Court after hearing the petition dismissed the petition on the sole ground that the petitioners have not produced any piece of document to show that deceased was 129 OS No.25227/2009 owning six immovable properties as shown in the petition as well as shown in the alleged will.
2. The learned counsel strenuously contends before this Court that so far as the probate proceedings are concerned the production of title deeds does not arise for consideration, though relied upon the decision of this Court reported in the case of M.A. SREENIVASAN Vs. H.V. GOWTHAMA AND ANOTHER reported in ILR 2005 KAR 1138 wherein this Court has observed as follows:-
"INDIAN SUCCESSION ACT, 1925 - SECTION 263 REVOCATION OF PROBATE UNDER - PROBATE MAY BE REVOKED OR ANNULLED FOR JUST CAUSE - HELD - The Probate Court cannot go into the question of title to the property which is bequeathed under the will - The grant of probate do not divest any person of his title to the property nor vest title in the beneficiary under the Will - the scope of enquiry in a probate proceedings is only to find out whether the Will sought to be probated has been duly executed by the testator and is proved in accordance with law and the statutory requirements under the Act have been complied with."
And another ruling in DELHI DEVELOPMENT AUTHORITY Vs. MRS. VIJAYA C. GURSHANEY AND ANOTHER reported 130 OS No.25227/2009 in AIR 2003 SC 3669, the Apex Court has also observed with regard to the proof of title in the probate proceedings in the following manner:-
"It is settled law that a testamentary court, whilst granting probate or letters of administration does not even consider particularly in uncontested matters, the motive behind execution of a testamentary instrument. A testamentary court is only concerned with finding out whether or not the testator executed the testamentary instrument of his free will. It is settled law that the grant of a probate or letters of administration does not confer title to property. They merely enable administration of the estate of the deceased. Thus, it is always open to a person to dispute title even though probate or letters of administration have been granted."
3. In view of the above said decision, the Trial Court has committed a serious error in insisting upon proving by production of title deeds pertaining to the properties mentioned in the petition. The Trial Court except this has not at all considered any other relevant records and material produced by the petitioners before this Court. Therefore, it is just and necessary to set aside the judgment of the Trial Court and remit the matter to the 131 OS No.25227/2009 Trial Court with certain observations. Hence the following:-
ORDER The appeal is allowed. The judgment passed by the Trial Court in P AND S.C. No. 11/2016 dated 17.09.2016 is hereby set aside. The matter stands remitted to the Trial Court with a direction that without insisting the proof of title of the testator with regard to the property is concerned, the Court shall proceed to appreciate the material on record to consider the issuance of succession certificate or probate and letters of administration in favour of petitioner No.1. It is made clear that both before the Trial Court and before this Court, the legal requirements of issuance of notice have already been complied with. Therefore, there is no need for the Trial Court to further insist for issuance of notice once again. The Trial Court is hereby directed to dispose of the petition within one month from the date of receipt of a copy of this order.
Chiranjilal Shrilal Goenka, Deceased through LRS- Appellant Versus Jasjit Singh and Others- Respondents reported in (1993) 2 SCC 507 has held as follows:-
132OS No.25227/2009 Succession Act, 1925 - Ss. 211(1), 217, 222, 223, 224, 227, 273, 276, 280, 294, 295 and 299 - Grant of probate
- Court of probate has exclusive jurisdiction - Civil court in original side or arbitrator, even on consent of parties, has no jurisdiction to adjudicate upon proof or validity of will propounded by the executor - Unless grant of probate is revoked, it operates as a judgment in rem - It conclusively establishes appointment of executor and valid execution of will - Probate court does not decide any question of title, or the existence of the property itself - While executor expressly nominated in the will, being legal representative of the deceased testator, entitled to grant of probate, heirs are not entitled to it The executor/executrix nominated expressly in the will is a legal representative entitled to represent the estate of the deceased but the heirs cannot get any probate before the probate court. They are entitled only to resist the claim of the executor/executrix of the execution and genuineness of the will. The grant of probate gives the executor/executrix the right to represent the estate of the deceased, the subject matter in other proceedings. (Para 20) The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or 133 OS No.25227/2009 refusal of probate or an appeal carried against the decision of the probate court. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and in no other ways. The only issue in a probate proceeding relates to the genuineness and due execution of the will and the court itself is under duty to determine. The grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus it does no more than establish the factum of the will and the legal character of the executor. Probate court does not decide any question of title or of the existence of the property itself. (Paras 15 and 20)
(i) Kanwarjit Singh Dhillon Versus Hardyal Singh Dhillon reported in (2007) 11 SCC 357, the Hon'ble Supreme Court of India has explicitly held as follows:
A. Family Law - Succession Act, 1925 - Ss. 63, 65, 66, 222, 227, 273 & 276 - Jurisdiction of Probate Court - Extent of -Testator if had the authority to dispose of the properties bequeathed by him, if title to such properties or whether such properties were joint ancestral properties or acquired properties - Held, said questions do not fall under jurisdiction of Probate 134 OS No.25227/2009 Court -The title of the testator in the properties bequeathed can be decided only by civil court on evidence - Albeit the probate could be admitted into evidence by the civil court to decide title suit but it would not be decisive for that purpose - Hence, a suit seeking declaration of title to certain properties on the allegations that the same were joint properties of HUF of which the plaintiff was a member and that SK was the karta of the HUF and had by utilizing the income from the ancestral properties acquired various properties including the suit properties, held, not rendered non-maintainable merely because probate of a will executed by SK bequeathing the said properties to the appointed executor had already been granted to that executor and had attained finality - Civil Procedure Code, 1908 - S. 9 - Title suit filed subsequent to grant of probate of will in respect of the suit properties -- Maintainability - Specific Relief Act, 1963, S. 34 The title of the testator in the suit properties can only be decided by the civil court on evidence. It is true that the probate of the will granted by the competent Probate Court would be admitted into evidence that may be taken into consideration by the civil court while deciding the suit for title but grant of probate cannot be 135 OS No.25227/2009 decisive for declaration as to whether at all the testator had any title to the suit properties or not. (Para 12)
(ii) 1989 Supp (2) SCC 646 rendered in the case of M.S Premanand Versus M.R Purushotam and others wherein the Hon'ble Supreme Court of India has explicitly held as follows:-
Will - Letters of administration - Suit for grant of - Court in the proceedings not entitled to go into the question of title to the properties bequeathed (conceded) Learned counsel further submitted that in the light of what is stated herein supra the Plaintiffs submit with deep respect that Issue No.3 and 4 are in the realm of speculation and in the sole discretion of this Hon'ble Court to address on all counts. Notwithstanding the same, Plaintiffs submit that in either of the two situations referred to herein and encompassed by the findings on Issue Nos. 1 and 2 they would be entitled to relief of a substantive nature and a grant of representation whether in the nature of Letters of Administration or in the Grant of a Probate in respect of the Will dated 29/1/1998 is an eventuality or relief that cannot be refused by this Hon'ble Court to the Plaintiffs in the above case.136
OS No.25227/2009 Learned counsel for Plaintiffs further argued in respect of Issue No.5 that in the light of what is stated herein supra the Plaintiffs submit that this Hon'ble Court is duly bound to decree the suit either by issue of Letters of Administration to the Estate of the deceased Ronald James Ringrow or in the alternative for a grant of Probate of the Last Will and Testament dated 29/1/1998 of the deceased Ronald James Ringrow referred to in detail herein supra. The Plaintiffs would also be entitled to the costs of the above suit and such further or other reliefs as this Hon'ble Court deems fit or the nature of the case requires. Plaintiffs notwithstanding what is stated herein supra submit that the Prayer for grant of Probate in the above case relates to the unregistered original of the registered Will dated 29/1/1998 bearing No.352/1997-98 in Book III, Volume 131, Pages 213 to 220, in the Office of the Sub Registrar of Assurances, Shivajinagar, Bangalore identical in all respects to the registered Will dated 29/1/1998 and duly made, executed by the deceased whilst of sound and disposing state of mind and duly attested in the manner indicated by the provisions of the Indian Succession Act, 1925. The said Wills have been proved in accordance with Section 68 of the Indian Evidence Act, 1872 and have not been seriously opposed or impugned in the above case. The Defendants more particularly the actively contesting ones have admitted the propriety and validity of the same. In the light of the legal pronouncements of the Hon'ble 137 OS No.25227/2009 Supreme Court of India and the Hon'ble High Court of Allahabad referred to herein supra and cited hereunder for ready reference the same will explicitly provide authority and jurisdiction to this Hon'ble Court to grant Probate in respect of the same to the First Plaintiff herein particularly since this original Will dated 29/1/1998 has been duly established and proved in all respects indicated and mandated in law. The Plaint in the above case relating to the same must thus be decreed with exceptional costs and a grant of representation to the Estate of the deceased in context of the same must thus be made by this Hon'ble Court.
PRAYER In the light of what is stated herein and for all the reasons stated and the documentary material placed before this Hon'ble Court forming part of the records in the above case, the Plaintiffs jointly and severally and most humbly pray that this Hon'ble Court be pleased to decree the above suit as prayed for with exemplary costs".
7. On behalf of the defendants 4 to 6 their counsel argues that plaintiffs have not mentioned any schedule in the petition, plaintiffs state that the Will 138 OS No.25227/2009 dtd.29.01.1998 has been registered, but has not revealed as to in whose custody the original Regd. Will is; but on the other hand, defendants 4 to 6 have produced original Regd. Will and it is marked at Ex.D.8 which had been handed over to defendants 4 to 8 by the Testator/vendor after sale deeds in their favour and the same shows that the Will dtd. 29.01.1998 has been revoked. Defendants have also produced manuscript of deed of revocation of Will and also Regd.
Deed of revocation of Will as per Ex.D.1 and 2. There is clear pleading in the written statement about revocation of Will by the Testator. In view of production of original Regd. Will by the Defendants 4 to 6 and also Deeds of revocation of Will, plaintiffs contention that revocation deeds are fraudulent, cannot be accepted. Said defendants have filed caveat petition and PW.1 has admitted signatures of the Testator in 139 OS No.25227/2009 these revocation deeds. After plaintiffs preferred the petition for probate and letter of administration, the same was converted to a regular suit as there was already caveat entered in the case. Even after the petition was converted into suit and it was contested, plaintiffs are seeking same relief and they have not sought the relief of declaration or cancellation of sale deeds. Sec.286 of the Indian Succession Act, 1925 provides the circumstances under which Probate cannot be granted. Until the sale deeds in favour of defendants 4 and 5 are set aside they stand against the whole world and therefore, when the plaintiffs have not sought for cancellation of the Sale deeds, they cannot be granted the reliefs for probate or letter of administration. Under sec.34 of the Specific Relief Act, if parties are entitled to seek further relief they are supposed to seek the same. Suit immovable 140 OS No.25227/2009 property is in the possession of the defendants 4 and 5 and plaintiffs have not sought the relief of possession as well. The relief for Probate or Letter of Administration cannot be granted on the basis of the copy of the Will produced in the case. Since the Testator has executed the sale deed in respect of immovable property covered under the Will before his death, same has also resulted in revocation of the Will dtd. 29.01.1998. As the testator has himself sold the said immovable property during his lifetime, immovable property covered under the Will is not in existence at all and hence, probate or letter of administration cannot be issued in respect of the said property in favour of the plaintiffs. Further, counsel for defendants 4 to 6 has placed reliance on the following decisions:-
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1. LAWS (APH) 2001 9 170
2. 2003 (7) Kar.L.J. 38
3. AIR 1982 Kar. 219.
On the above grounds, Learned counsel for defendants 4 o 6 has prayed for dismissing the suit.
8. In view of the above, following Issues have been framed for consideration:-
1) Whether the defendants prove the cancellation of the Will dtd. 29.01.1998 on 5.2.2002 under a Deed of Cancellation?
2) Whether the plaintiffs prove that the Will dated 29.01.1998 is the last Will of Late Ronald James Ringrow?
3) Whether the plaintiffs are entitled for the Letters of Administration for the 142 OS No.25227/2009 estate of deceased Ronald James Ringrow?
4) Whether the plaintiffs are entitled for the probate of the Will dtd. 29.01.1998?
5) What decree or order?
9. For the reasons stated in the subsequent paragraphs, I answer above Issues as follows:-
Issue No.1 :- In the negative Issue No.2 :- In the affirmative Issue No.3 :- As per final order Issue No.4 :- As per final order Issue No.5 :- As per final order for the following:-
REASONS
10. Issue No.2:- Plaintiffs have produced a copy of the Will dtd.29.01.1998 which is actually 143 OS No.25227/2009 bearing original signatures of the Testator deceased Ronald James Ringrow and attesting witnesses which has been marked at Ex.P.4. In fact, the defendants 4 to 6 have produced original Regd. Will dtd. 29.01.1998 at Ex.D.8 thereby contending that the said Will copy of which has been produced by the plaintiff as per Ex.P.4 has been cancelled by the Testator and hence defendants 4 and 5 being purchasers of the immovable property covered under the said Will, they have been handed over possession of the original Will by the Testator- Ronald James Ringrow. That apart, Defendants have actually not disputed the execution of Ex.P.4, original of which is at Ex.D.8, by the deceased Ronald James Ringrow. Whether the Will has been duly cancelled by the Testator is another question which will be decided under Issue No.1. For the present, to decide this issue, the question is 144 OS No.25227/2009 whether the deceased Ronald James Ringrow had executed Ex.P.4-Will; Ex.P.4 is an unregistered original copy of Ex.D8. Since the contesting defendants during the submissions made by their counsel have taken exception to production of copy of the Will as per Ex.P.4, law in that regard requires to be considered.
Plaintiffs counsel on this point has relied upon a decision of Allahabad High Court reported in AIR 1983 A 90 in the case of Smt.Kamala Rajamanikkam Vs. Smt. Sushila Thakur Dass and Ors wherein at Head Note 'B' law has been laid down that when the Will in identical language prepared by process of typing and obtaining copy with each Will executed by the Testator and attested by the witnesses, each one constitutes original. Thus the Learned counsel for plaintifs has argued that Ex.P.4 has to be considered as original Will.
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11. In this regard Sec. 237 of the Indian Succession Act, 1925 requires to be noted. It deals with Probate of copy or draft of last will. Sec. 237 of the Indian Succession Act, 1925 reads as under:-
"237. Probate of copy or draft of lost Will.--When a Will has been lost or mislaid since the testator's death, or has been destroyed by wrong or accident and not by any act of the testator, and a copy or the draft of the Will has been preserved, probate may be granted of such copy or draft, limited until the original or a properly authenticated copy of it is produced".
Similarly, Sec.239 of the Indian Succession Act, is relevant on the point, which reads as below:-
"239. Probate of copy where original exists.-- When the Will is in the possession of a person residing out of the state in which application for probate is made, who has refused or neglected to deliver it up, but a copy has been transmitted to the executor, and it is necessary for the interests of the estate that probate should be granted without waiting for the arrival of the original, probate may be granted of the copy so 146 OS No.25227/2009 transmitted, limited until the Will or an authenticated copy of it is produced".
The above said provisions lay down that when a Will has been lost or mislaid since the testators death or destroyed by wrong or accident, if copy of the will or draft of the Will is available, Probate may be granted of such copy or draft. Similarly it is laid down that when the Will has not been delivered up, copy has been given to the Executor, Probate should be granted to guard the interest of the Testator.
12. Crucial point to be considered here is whether the Will as per Ex.P.4 has been duly executed by the deceased Ronald James Ringrow. As far as this aspect is concerned, in the written statement itself the contesting defendants 4 to 6 have categorically 147 OS No.25227/2009 admitted that the deceased Ronald James Ringrow had executed the said Will. Relevant averment of the written statement filed by the Defendants 4 to 6 is at Page-22 of the written statement which reads as under:-
"It is submitted that Ronald James Ringrow on 29.1.1998 executed a Will. Under the Will he had bequeathed the immovable property in the name of the plaintiff No.2 and also named the plaintiff no.2 as the nominee in respect of some of his bank accounts".
Thus, defendants 4 to 6 have categorically admitted that the deceased Ronald James Ringrow had executed the above said Will. Of-course, they contend that thereafter, the Testator had sold the immovable property covered under the Will by executing the Regd. Sale Deed dtd. 19.10.2000 in favour of defendants 4 and 5. That is a different question which 148 OS No.25227/2009 is to be decided later under Issue No.1 and other issues. Here, in this issue question is whether the deceased Ronald James Ringrow had executed will as per Ex.P.4 or not?
13. The above said written statement admission apart, plaintifs in order to prove the Will marked at Ex.P.4 have examined PW.1 on their behalf as their Power of Attorney Holder as well as attesting witness of Ex.P.4 Will. In the cross examination PW.1 who is an attesting witness to the Will marked at Ex.P.4, execution of the said Will by the testator being in sound disposing state of mind, body and capacity has not been questioned. Neither the execution nor the capacity to execute the Will has been questioned in the cross examination of PW.1. Whereas Ex.P.4 will has been duly attested by two witnesses in conformity 149 OS No.25227/2009 with Sec. 63 of Indian Succession Act, 1925 and in accordance with Sec. 68 of the Indian Evidence Act, one attesting witnesses (PW.1) has been examined to prove the Will. Therefore, the admission apart in the written statement, plaintifs have adduced evidence by examining one attesting witnesses as PW.1 to prove that the deceased Ronald James Ringrow had executed the said Will. Hence, I am of opinion that the plaintiffs have duly proved the Will dtd.29.01.1998 marked at Ex.P.4. Consequently, Issue No.2 is answered in the affirmative.
14. Issue No.1:- Contesting defendants have produced manuscript deed of cancellation of the Will said to have been executed by the deceased Ronald James Ringrow as per Ex.D.1 and also registered deed of cancellation of the Will as per Ex.D.2. Contesting 150 OS No.25227/2009 defendant Nos.4 to 6 thereby contend that the testator has cancelled the Will marked at Ex.P.4/D.8 by executing the Deed of Cancellation of the said last Will as per Ex.D.1 and 2. Ex.D.1 has been executed on 5.2.2002 and Ex.D2 has been executed on 6.2.2002.
On behalf of the said defendants, defendant No.4 has testified as DW.1 stating that under Ex.D.1 and 2 earlier Will dtd. 29.1.1998 has been cancelled by the Testator Ronald James Ringrow. Ex.D.1 and 2 bear signatures of two attesting witnesses namely R. Shamaprasad and R.Augustine. Execution of the said Deed is of-course meets the conditions laid down in Sec.70 of the Indian Succession Act, 1925 which deals with the manner in which testamentary document can be cancelled. Sec.70 of the Indian Succession Act, 1927 reads as under:-
151OS No.25227/2009 "70. Revocation of unprivileged Will or codicil.--
No unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is herein before required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same"
It is the contention of the Learned counsel for plaintifs that the Deed of Revocation of the Will, will have to be proved in the same manner as a Will should be proved by examining atleast one attesting witness of the deed of cancellation of Will and since the above defendants have not examined any attesting witnesses to the said deed of cancellation of Will, same has not been proved in accordance with law and in view of the strong suspicious circumstances surrounding the said Deed of Revocation of Will, in the 152 OS No.25227/2009 absence of examination of the attesting witnesses thereto it cannot be held that the Will marked at Ex.P.4 has been cancelled by the Testator. In this connection, decision of the High Court of Karnataka, Bengaluru reported in ILR 2008 Kar. 87 in the case of S. Jagadish Vs. Dr. S.Kumaraswamy, since dead by L.Rs' S.K.Lingaraju and Ors' requires to be noted. In the Head note 'A' of the said decision, law laid down on the subject is stated which is as below:-
(A) INDIAN SUCCESSION ACT, 1925 - SECTION 63-
Execution of unprivileged Wills - Section 70 - Revocation of unprivileged Will or Codicil - Duly executed WIN-Deed of cancellation of Proof of - The mode of revocation - HELD, If the revocation is by some writing declaring an intention to revoke the Will, the said writing should be executed in the manner in which an unprivileged Will requires to be executed as contemplated under Section 63 of the Act - FURTHER HELD, The deed of revocation also should be duly signed by the testator, with the intention to cancel the Will and it shall be duly attested by two or more witnesses - The testator should be in a 153 OS No.25227/2009 sound state of mind at the time of execution of the deed of revocation - The propounder of the said deed of revocation, should dispel all the suspicious circumstances surrounding the execution of such writing. Only then the said deed or revocation of Will has the effect of revoking a duly executed Will - ON FACTS, HELD, Plaintiff's evidence shows that before death, the testator was in a State of Coma- The evidence on record do not prove due execution of Ex.P2 as required under Section 63 of the Act. The Courts below without proper application of mind have misread the evidence on record, ignored the material evidence on record - The Courts below have not kept in mind the provisions of Section 70 and Section 63 of the Act which warrants the standard of proof that it is required for due execution of Ex.P2 is the same as Ex.D.1".
Therefore, in respect of Deed of Revocation of Will, Sec. 63 of the Indian Succession Act will have to be satisfied and as a corollary, it will have to be proved in accordance with Sec.68 of the Indian Evidence Act,1872. Document which requires attestation under Law as per Sec.68 of the Indian 154 OS No.25227/2009 Evidence Act, 1872 can be proved only by examination of atleast one of the witnesses to the document or if no witnesses are available by examining some one who knows the signatures of the Testator and attesting witnesses to prove that the signatures have been affixed by the Testator and attesting witnesses therein.
In this case, it is not the defendants version that the attesting witnesses to Ex.D.1 and 2 revoked the deed of will are not available. However, defendants have not chosen to examine any of the attesting witnesses to Ex.D.1 and 2 before this court. They have also not examined any witnesses to prove the signatures of the attesting witness. Of-course the signatures of Testator in Ex.D.1 and 2 have been admitted by PW.1 during his cross examination. That, per-se will not satisfy the requirement of Sec.68 of the Indian Evidence Act, 1872. When it is not the case of the defendants that 155 OS No.25227/2009 the attesting witnesses to Ex.D.1 and 2 are not available, it was mandatory on their part to examine atleast one of the attesting witnesses to prove Ex.D.1 and 2. Said requirement of law is to remove suspicious circumstances which possibly surrounded such testamentary documents. Here, in this case, Plaintiffs have raised strong and very serious suspicious circumstances surrounding the execution of Ex.D.1 and 2 revocation deed of will by the testator by contending that the testator at that time did not possess disposing state of mind, body and memory and understanding. Plaintiffs have contended that the testator apart from having undergone surgery to the lung had later suffered malignancy in the prostate and had undergone surgery for the same, and because of the same, he had enlarged libido and was amorously attracted to young woman and did not possess sound 156 OS No.25227/2009 disposing state of mind, body and memory and defendant No.4 and 5 taking advantage of the same have got the above said documents concocted. In this background mere production of Ex.D1 and 2- deeds of revocation of Will is not sufficient to accept defendants version that the Will at Ex.P.4 has been cancelled by the Testator being in sound disposing state of mind, body, memory and understanding.
15. Main contention of the Learned counsel for the contesting defendants is that the Testator has sold the immovable property which is the subject matter of Ex.P.4/D.8- Will to defendants 4 and 5 under Regd. Sale Deeds dtd. 19.10.2000 marked at Ex.D.3 and 4 subsequent to the execution of Ex.P.4 Will and therefore, the Will marked at Ex.P.4 is no longer in force. Learned counsel has also argued that the fact 157 OS No.25227/2009 that the original Regd. Will is in the custody of defendants 4 and 5 who are purchasers of the immovable property which shows that the Will at Ex.P.4/D.8 has been duly cancelled by the Testator. In this connection, I would like to refer to a decision of the Apex court in regard to presumptions which can be drawn on the point. In the case of Durga Prasad Vs. Devi Charan, reported in 1979 (1) SCC. 61. In para-
31 of the said judgment law has been laid down as follows:-
"The correct legal position may therefore be stated as follows:-
1. That where a will has been properly executed and registered by the testator but not found at the time of death the question whether the presumption that the testator had revoked the will can be drawn or not will depend on the facts and circumstances of each case. Even if such a presumption is drawn it is rather a weak one in view of the habits and conditions of our people.158
OS No.25227/2009
2. That the presumption is a rebuttable one and can be rebutted by the slightest possible evidence, direct or circumstantial. For instance, where it is proved that a will was a strong and clear disposition evincing the categorical intention of the testator and there was nothing to indicate the presence of any circumstance which is likely to bring about a change in the intention of the testator so as to revoke the will suddenly, the presumption is rebutted.
3. That in view of the fact that in our country most of the people are not highly educated and do not in every case take the care of depositing the will in the bank or with the Solicitors or otherwise take very great care of the will as a result of which the possibility of the will being stolen, lost or surreptitiously removed by interested persons cannot be excluded, the presumption should be applied carefully.
4. That where the legatee is able to prove the circumstances from which it can be inferred that there could be absolutely no reason whatsoever for revoking the will or that the act of revoking the will was against the temperament and inclination of the testator, no presumption of revocation of the will can be drawn.
5. That in view of the express provision of section 70 of the Act the onus lies on the objector to prove the various circumstances, viz., marriage, burning, tearing or destruction of the will.
6. When there is no obvious reason or clear motive for the testator to revoke the will and yet the will is not found on the 159 OS No.25227/2009 death of the testator it may well be that the will was misplaced or lost or was stolen by interested persons".
In the above decision it has been held that when the cancellation of the Will is done by way of executing written documents then it will have to be in conformity with the law which deals with execution of the Will and proof of the same. Therefore, if revocation is by way of written document, then it will have to be in compliance of section 63 of the Indian Succession Act, 1925 and Sec. 68 of the Indian Evidence Act, 1872. The other mode of cancellation of Will is by burning, tearing or destroying the Will. But, at the same time it has been observed in the above decisions that possibility of the Will being surreptitiously stolen or lost must also be taken into consideration.
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16. In this case, certain strong suspicious circumstances have been elicited in the cross examination of Defendant No.4/DW.1. This is not a case where Sale deed has been executed in the normal course in favour of defendants 4 and 5. If it were the sale deeds executed in the normal course possibility of defendants contention that in view of the sale of the immovable property covered under the Will by the testator during his life time Will at Ex.P.4 has impliedly stood revoked could have been accepted.
But, the facts elicited in the cross examination of DW.1 show that the Testator had got a Joint Account opened in the Bank with Defendant No.4. Sale consideration is said to have been paid by defendants 4 and 5 has been deposited into the Joint account and then defendant Nos.4 and 5 have allegedly withdrawn Rs.10,00,000/- lakhs each. Hence, Sale Deeds in 161 OS No.25227/2009 question are not in favour of some third parties. The Defendant No.4/D.W.1 had Joint Account in Bank with the Testator. In the cross examination, DW.1 states that in the year 2002 joint account was opened by the Testator with her, but when it was later suggested that the joint account had been opened much earlier to the said date she states that she does not remember the same. Apart from the same, Defendant No.4 has been named as 'nominee' to the Bank Account of the Testator. These raises suspicion as to whether defendant No.4 and 5 could have exerted undue influence over the testator in getting the deed of revocation of the Will and also sale deeds in their favour. Also, contrary to recital in the Sale Deeds possession of the immovable property had not been given to defendants 4 and 5 as admitted in D.W.1's cross examination. Plaintiffs contend that the property 162 OS No.25227/2009 was worth Rs.1.00 Crore, but sale consideration shown to have been paid only Rs.45.00 lakhs. Also medical condition of the Testator is questioned. When that is so, the Law is well settled that Testamentary Court has no jurisdiction to decide any question of title to the immovable property in a Probate Proceedings. If atleast one witness to the sale deeds had been examined to prove that the deceased Ronald James Ringrow was in sound disposing state of mind and consciously executed the Sale Deed, same could have also been considered for the limited purpose of holding that the earlier Will of the Testator marked at Ex.P.4/D.8 has impliedly stood cancelled. Sale deeds do not require attestation, but in the case on hand, Sale Deeds marked at Ex.D.3 and 4 have been attested by two witnesses. Hence, if one witness atleast had been examined to prove the mental 163 OS No.25227/2009 capacity of the vendor/testator, that would have also been sufficient to hold that the testator being in possession of the sound and disposable state of mind revoked his last will marked at Ex.P.4/D.8. In the absence of the same, having regard to the facts and circumstances, it is not possible to accept the defendants case that the testator has duly revoked Ex.P.4 Will. Further, in the case of Vitthal Rao @ Pandarinath S/o Athmaram Mokaddam Vs. Domaji Panduranga Kokate & Ors., reported in 2018 (2) Maharastra Law Journal 52, Bombay High Court has held that in the absence of examination of attesting witnesses to the revocation deed of will, requirements of revocation of will are not complied with and same is not proved and hence, beneficiaries under the Will continued to be owners of the subject matter of the Will. Requirement of Probate is a Court 164 OS No.25227/2009 procedure and in the said proceedings when the Will in question has been proved, opposite party who claims revocation of the Will has to prove the revocation in accordance with law. But, the defendants have though produced Ex.D.1 and 2 - Deeds of Revocation and also Sale deeds as per Ex.D.3 and 4, they have not chosen to examine attesting witnesses to the Deed of revocation of Will. But, there are a number of suspicious circumstances pointed out by the plaintiffs with respect to deed of revocation and also sale deeds obtained by Defendants 4 and 5. In these circumstances, I am of opinion that the contesting defendants 4 to 6 have not proved Ex.D.1 and 2-Deed of Revocation of last Will of the Testator-Ronald James Ringrow. Consequently, Issue No.1 is answered in the negative.
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17. Issue Nos.3 and 4:- Plaintiffs have proved Ex.P.4 Will dtd. 29.01.1998. Contesting defendants have failed to prove the deed of revocation marked at Ex.D.1 and 2 in as much as they have not chosen to examine the attesting witnesses even though a number of suspicious circumstances have been pointed out by the plaintiffs with respect to the deed of revocation. Defendants have mainly relied on the sale deeds marked at Ex.D.3 and 4 said to have been executed by the testator in favour of defendants 4 and 5 respectively. Since the defendants have failed to remove the suspicion regarding they obtaining the deed of revocation of Will and Sale Deeds by exerting undue influence, I am of opinion that even the sale deed marked at Ex.D.4 and 5 in favour of defendants 4 and 5 are not of any help to them. In a probate proceedings, neither the title to the immovable 166 OS No.25227/2009 property nor existence of immovable property which is the subject matter of the Will can be decided. Only question which can be decided in a Probate proceedings is genuineness or otherwise of the Will propounded in the petition. In this regard it would be apt to note a decision of the Apex court referred to by the plaintiffs counsel reported in (1993) 2 Supreme Court Cases 507 in the case of Chiranjilal Shrilal Goenka (deceased) through L.Rs. Vs. Jasjit Singh and ors. Head note of the said decision reads as follows:-
"Succession Act, 1925 - Ss. 211(1), 217, 222, 223, 224, 227, 273, 276, 280, 294, 295 and 299 - Grant of probate - Court of probate has exclusive jurisdiction Civil court in original side or arbitrator, even on consent of parties, has no jurisdiction to adjudicate upon proof or validity of will propounded by the executor - Unless grant of probate is revoked, it operates as a judgment 167 OS No.25227/2009 in rem - It conclusively establishes appointment of executor and valid execution of will - Probate court does not decide any question of title, or the existence of the property itself While executor expressly nominated in the will, being legal representative of the deceased testator, entitled to grant of probate, heirs are not entitled to it".
It is admitted fact that plaintiffs have filed another suit by way of P.Misc.Petition No.31/2005 which is pending for the relief of cancellation of the Sale Deeds marked at Ex.D.4 and 5. Probate may be necessary for the plaintiffs who have filed the said suit for cancellation of the Sale Deeds for vindicating their rights in the said suit. Granting of probate will not per-se amount to declaring title to the property in favour of plaintiffs. Plaintiffs will only have right of representation in respect of Will and based on the same, they may pursue their rights in the pending suit.
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18. Defendants counsel has placed reliance on the decisions reported in Laws (APH) 2001 9 170 in the case of Kudupudi Subba Rao Vs. Kudupudi Satyanarayanamma; 2007 (7) Kar. L.j. 38 in the case of Krishna Vs. Sanjeev; and AIR 1982 Kar.
219 in the case of Ranajit Kanungo Vs. Ibcon Pvt.
Ltd., Bombay. In the first mentioned case two brothers being co-plaintiffs had produced documents before the court, but afterwards they had difference of opinion between them and one brother made application for return of the original document and same was granted, but the other brother being co-
plaintiff took objection to the return of documents to his brother and went in Revision and in the said case, matter was remanded with a direction to decide the matter afresh. Said decision has no application to the facts of this case. In the second mentioned decision, 169 OS No.25227/2009 law has been stated as to how the documents confronted in the cross examination but not admitted by the witness should be marked. In the last decision, it has been held that the document intended to be used during cross examination of witness need not be produced at the stage of production of documents, but they must satisfy the relevancy and admissibility.
These decisions in my opinion, do not aid the defendants defence in the suit in any manner. Also, Sec.286 of the Indian Succession Act, 1925 which is relied on by the defendants counsel has no application to the present case, in as much as the said provision deals with the jurisdiction of District deligate and not that of District Judge.
19. The Will in favour of Plaintiff no.2 as per Ex.P.4 original of which has been produced as per 170 OS No.25227/2009 Ex.D.8, is not in dispute and additionally plaintiffs have examined one of its attesting witnesses as PW.1 and proved the same. The contesting defendants have though produced manuscript of the revocation deed as per Ex.D.1 and registered deed of revocation of will as per Ex.D.2, they have not chosen to examine the attesting witnesses to the said deed of revocation of Will and therefore, they have not proved the same.
Their sale deed marked at Ex.D.4 and 5 have not been taken into consideration for the reasons that the same have not been executed in the normal course in as much as defendant no.4 had been included as joint account holder with the vendor/Testator in his Bank Account and she has been nominated to his Bank account and suspicion lingers around the same as well. The Sale Deeds have not been executed in favour of outsiders, instead the facts show that there was 171 OS No.25227/2009 possibility for defendants 4 and 5 to exert undue influence on the Testator/vendor. When that is so, plaintiffs have challenged the Sale deeds marked at Ex.D.4 and 5 seeking cancellation of the same by filing P.Misc.No.31/2005. Also in Ex.P.4-Will it is mentioned that the Testator had 2/3rd share in the immovable property and Plaintiff no.2 herein had 1/3rd share therein. However, Sale deeds have been executed in respect of the whole property in favour of defendants 4 and 5.
20.Considering all these facts and circumstances, I am of opinion that the plaintiff no.1 who has been nominated as Executrix in the Will Ex.P.4, may be issued as sought for. In view of granting probate in favour of plaintiff no.1 who has been appointed as an Executrix in the Will marked at Ex.P.4 there would not 172 OS No.25227/2009 be any need for issuing Letter of Administration in favour of Plaintiff No.2. Consequently, Issue Nos.3 and 4 are answered to the effect that plaintiff no.1 is entitled to issue of Probate in respect of Ex.P.4-Will dated 29.01.1998 with the Will annexed thereto.
21. Issue No.5:- For the reasons stated above, I proceed to pass the following :-
ORDER Suit of the Plaintiffs is hereby decreed.
Issue Probate in the name of Plaintiff No.1 in respect of Will dated 29.01.1998 marked at Ex.P.4, with said Will annexed thereto.173
OS No.25227/2009 The Plaintiff No.1 shall file inventory in six months and accounts within one year.
1St plaintiff shall furnish administration bond and two sureties for Rs.50,00,000/-.
No order as to cost.
Draw decree accordingly.
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(Dictated to the Stenographer, transcript thereof, is corrected and then pronounced by me in the open court on this the 11th day of January, 2022)
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(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge & C/c IV ACC & SJ., Mayo Hall, Bengaluru.
174OS No.25227/2009 ANNEXURE
1. List of witnesses examined for the Plaintiffs:
P.W.1 Wg.Cdr.M.R.Shirazi, GPA Holder
2. List of witnesses examined for Defendants:-
D.W.1 Mrs.Alice Marcarenhas
3. List of documents exhibited for the Plaintiffs:
Ex.P1 General Power of Attorney executed
by Jennifer Susan
Ex.P2 General Power of Attorney executed
by Jennifer Susan
Ex.P3 Death Certificate
Ex.P4-5 Will and Counter
Ex.P4(a)(b) Signature
Ex.P6 Cancellation Deed
Ex.P7&8 True copy of Case Sheet
Ex.P9 & 10 Certified copy of the Sale Deeds
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Ex.P11 & 12 Certified copy of the Sale Deeds
Ex.P13 Warrant in SC No.75/2005.
4. List of documents exhibited for Defendants:-
Ex.D.1 Letter
Ex.D.1(a) Signature
Ex.D.2 Documents executed by Late Ronald
James Ringrow
Ex.D.2(a) Signature
Ex.D.3 & 4 Sale Deeds
Ex.D.3(a) to Signatures
(o)
Ex.D.4(a) to Signatures
(n)
Ex.D.5 Document bearing signature of 2 nd
plaintiff
Ex.D.5(a) Signature of 2nd Plaintiff
Ex.D.6 Pass Book
Ex.D.7 General Power of Attorney
Ex.D.8 Will
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Ex.D.9 Newspaper Publication
Ex.D.9(a) Public Notice
(D.S.VIJAYA KUMAR)
XXVI Addl. City Civil Judge
& C/c IV ACC & SJ., Mayo Hall,
Bengaluru.
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OS No.25227/2009
(Judgment pronounced vide separate
Judgment)
ORDER
Suit of the Plaintiffs is hereby decreed.
Issue Probate in the name of Plaintiff No.1 in respect of Will dated 29.01.1998 marked at Ex.P.4, with said Will annexed thereto.
The Plaintiff No.1 shall file inventory in six months and accounts within one year.
1St plaintiff shall furnish administration bond and two sureties for Rs.50,00,000/-.
No order as to cost.
Draw decree accordingly.
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge & C/c IV ACC & SJ., Mayo Hall, Bengaluru.
178 OS No.25227/2009