Bangalore District Court
Mr. Jagan Chandy vs Mr. Lalit Samuel Pothan on 14 February, 2018
IN THE COURT OF THE PRINCIPAL CITY CIVIL AND
SESSIONS JUDGE, AT BENGALURU
Dated this the 14th day of February, 2018
PRESENT: SRI. SHIVASHANKAR B. AMARANNAVAR,
B.Com., LL.M.,
Principal City Civil and Sessions Judge,
Bengaluru.
O.S. No.4641/2001
PLAINTIFF : Mr. Jagan Chandy
S/o. C. Chandy,
R/at. 2-C,
Hayes Hall,
Hayes Road,
Bangalore.
[By Sri.PBA, Advocate]
Vs.
DEFENDANTS : 1. Mr. Lalit Samuel Pothan
(Since deceased by his LRs.)
1a) Mrs. Mary Pothan
W/o. Late. Lalit Samuel Pothan,
1b) Deepak Pothan
S/o. Late. Lalit Samuel Pothan,
2. Mr. Mathew Chandy Pothan
Aged about 50 years,
S/o. Late. Mr. Sidney George Pothan,
[D.1(a)(b) and 2 are
R/at. Ground Floor,
Jacaranda Apartments,
No.14 (New No.7)
Moyenville Road,
Langford Town,
Bangalore - 560 025..
2 O.S.No.4641/2001
3. Mr. Reesa Pothan
Bethel, 633, 6th Main,
12th Cross, Mico Layout,
II Stage,
Bangalore - 560 076.
4. Shobita Punja
D/o. Late. M.R.R. Punja and
Mrs. Naomi Meadows,
R.at. No.J-231, 1st Floor, Saket,
New Delhi - 110 017.
[D.1 by Sri.AKY, Advocate]
[D.2 by Sri.CKS, Advocate]
[D.3 by Sri. ASK, Advocate]
Date of institution of suit 25.03.1995
Nature of the suit For grant of probate
Date of commencement of 29.5.2000
evidence
Date of closure of evidence 22.7.2015
Date on which Judgment 14.02.2018
pronounced
Total Duration 22 years, 10 months, 19 days
JUDGMENT
The suit O.S.No.4641/2001 was initially filed as Probate C.P. No.9/1995 by the petitioner-plaintiff herein u/Sec.276 of the Indian Succession Act, 1925 R/w. Rule 5 of the Rules Governing Probate and Administration matters, 1965 before the Hon'ble High Court of Karnataka on 24.04.1995 seeking for grant of probate in the common form of the Will said to have been executed by Mrs. Rebecca Pothan. Defendants 1 3 O.S.No.4641/2001 and 2 who were the sons of Mrs. Rebecca Pothan were arrayed as respondents 1 and 2 since they had lodged caveat. Defendants 1 and 2 objected before the Hon'ble High Court not to grant probate as per the Will propounded by the plaintiff. The petition was converted into a suit and registered as TOS No.1/1996 on the file of the Hon'ble High Court since the proceedings became contentious in terms of Sec.295 of Indian Succession Act. Thereafter, the defendant No.3 who is the grand-daughter of Mrs. Rebecca Pothan was directed to be impleaded as a party to the suit and was arrayed as defendant No.3 who filed her written statement. Thereafter defendant Nos.1 to 3 filed I.A.No.3 before the Hon'ble High Court under Order 1 Rule 10 of CPC to implead Mrs. Naomi Meadows, the daughter of Mrs. Rebecca Pothan as a party to the proceedings but it was reported that Mrs.Naomi Meadows died on 9.2.1998 before the matter could be heard and in view of her death, I.A.No.3 came to be dismissed having become in fructuous. Thereafter, I.A.No.4 to implead Mrs. Shobita D/o. Mrs. Naomi Meadows as a party to the proceedings was filed which was opposed by the plaintiff on the ground that Smt. Shobita was not a necessary party to the proceedings and the said application came to be 4 O.S.No.4641/2001 dismissed. Thereafter, the issues were framed by the Hon'ble High Court of Karnataka and PW.1 was examined and cross- examined and PW.2 was examined in chief. Thereafter, the case was transferred to this court for further proceedings at the state at which it was pending and thereafter PW.2 was cross-examined and PW.3 and PW.4 were examined and cross-examined and Exs.P.1 to P.10 were got marked on their behalf. On behalf of the defendants, DWs.1 to 3 were examined and Exs.D.1 to D.11 have been got marked on their behalf. The counsel appearing for the parties filed their written arguments.
2. It is averred in the plaint that the plaintiff is the Consulting Engineer, residing at Bangalore and Mrs. Rebecca Pothan, the executrix of the Will Ex.P.1 died on 28.12.1994 at her residence No.7, Moyenville Road, Langford Town, Bangalore at 1.00 P.M., which was her fixed place of abode. Ex.P.1 is the last Will and testament of Mrs. Rebecca Pothan and is duly executed by her in the presence of witnesses mentioned at the end of the said Will and the plaintiff is the same person Jagan Chandy, the executor named in the said Will. It is the further case of the plaintiff that the amount of the assets which are likely to come to his hands does not 5 O.S.No.4641/2001 exceed Rs.14 lakhs and the net amount of the said assets after deducting all items is under the value of Rs.14 lakhs. It is the further case of the plaintiff that he undertakes to duly administer the property and credits of Mrs. Rebecca Pothan and to make full and true inventory thereof and exhibit the same in the court within six months from the date of grant of probate and also render to the court true account of the said property as well as the credits within a year from the said date. With this, the plaintiff prayed to allow the suit.
3. The defendants 1 and 2 filed their joint written statements contending that their mother Mrs. Rebecca Pothan was under deep grief and distress on the demise of her husband Sydney George Pothan and was suffering from testamentary capacity. She returned to normalcy gradually after sometime and thereafter her physical and mental health broke down and her condition deteriorated and fast overtaken by senility and loss of memory from early 1992 till her death i.e., on 28.12.1994. Therefore, Mrs. Rebecca Pothan was not in a sound and disposing state of mind while executing the purported Will Ex.P.1 sought to be probated by the plaintiff on account of loss of power of discrimination as a result of impaired faculties. Further, her age and ailments reduced 6 O.S.No.4641/2001 her to total dependency which had rendered her incapable of independently exercising her will and that the daughter of testatrix one Mrs. Naomi Meadows assumed the management and control of all the affairs of the testatrix from 1992. Having married outside the Christian community of her devout Christian parents, Mrs. Naomi Meadows had lost the love and run foul of her parents and thus there had been no filial affection between the parents and daughter. Except that, the parents occasionally gave her shelter in their house at times when Mrs. Naomi Meadows had been in distress having no place for her stay. Mrs. Naomi Meadows inexplicably appears as the principal beneficiary in the Will sought to be probated with the purported bequest in her favour in her mother's newly constructed flat in Jacaranda Apartments, Langford Town, Bangalore. The defendants 1 and 2 further contended that the impugned Will had not been executed by the said testatrix and if at all such Will came to be executed it was so executed by bringing duress and undue influence by her daughter Mrs. Naomi Meadows, as such the purported Will was no longer a free agent stands it vitiated and therefore, the prayer for probate is liable to be refused. The purported Will is also invalid for want of due execution 7 O.S.No.4641/2001 for the reason that the principal beneficiary under the purported Will Mrs. Naomi Meadows is on record having categorically admitted the execution of another Will by testatrix around October 1990 and its existence in her possession at least as on 29.10.1990 where under the testatrix had bequeathed her flat in Jacaranda apartment in favour of her grand-daughter Ms. Reesa towards whom the testatrix had great affection and that the said Will has been validly executed by the testatrix when she was in possession of her faculties around October 1990 and the evident interest evinced by Mrs. Naomi Meadows most unnaturally the principal beneficiary under the propounded Will sought to be probated in getting the said valid Will superseded and to present the impugned Will overwhelmingly in her own favour are facts which rightly create reasonable suspicions on the genuineness of the purported Will and also of its due execution by the testatrix and therefore the Will cannot be probated as sought for. With this, the defendants 1 and 2 have sought for dismissal of the suit.
4. The defendant No.3 in her written statement has contended that the suit is contrived by the plaintiff in collusion with Mrs. Naomi Meadows, who is the principal 8 O.S.No.4641/2001 beneficiary legatee in the now propounded Will purported to have been executed on 26.5.1992 by the deceased Mrs. Rebecca Pothan and the plaintiff has instituted the suit aimed at the undue enrichment of the said Mrs. Naomi Meadows at the expense of defendant Nos.1 and 2. It is further contended that the frame of the suit is inappropriate in as much as the necessary and proper party viz., Mrs. Naomi Meadows has been deliberately excluded as a defendant and therefore the suit is bad for non-joinder of necessary party. It is further contended that Mrs. Naomi Meadows, who stands closer relationship as a daughter to the testatrix than the plaintiff who claims himself to be the appointed executor has been left out even from service of notice mandatory under the relevant rules in force on the subject issued by the Hon'ble High Court and therefore the non-compliance with the said mandatory provision per se disentitles the plaintiff to prosecute the suit in its present form. Further, the purported Will dated 26.5.1992 propounded in this suit by the plaintiff is not a valid Will and it has not been executed by Mrs. Rebecca Pothan and that it is fraudulent and forged document. Alternatively, it is contended by defendant No.3 that the purported Will has been got executed by the deceased Mrs. 9 O.S.No.4641/2001 Rebecca Pothan through undue influence exerted over her by the principal beneficiary legatee viz., Mrs. Naomi Meadows when the deceased Mrs.Rebecca Pothan was not in a free disposable state of mind due to physical and mental ailments during the period before her death. Defendants 1 and 2 who were the sons and defendant No.3, the grand-daughter of Mrs. Rebecca Pothan being closely related to her have asserted that the said Will did not exist or that it is valid for the aforesaid reasons and plaintiff being the distant relative of Mrs. Rebecca Pothan has no warrant for his assertion that the Will is genuine. Defendant No.3 contends that she does not admit that the properties left behind by Mrs. Rebecca Pothan upon her death constituted are only those items shown at Sl.Nos.2 to 12 in the schedule of the plaint but there had been a collection of family antiques and other precious movables of inestimable value and that the plaintiff with the connivance of Mrs. Naomi Meadows has deliberately left out all those items from inclusion in the schedule with the motive of escaping accountability thereof. The plaintiff has no locus standi to represent the estate of the deceased since the Will sought to be probated does not exist in law and therefore the undertaking volunteered by the in para 8 and 9 of the 10 O.S.No.4641/2001 petition to render true account of assets is without the sanction of law and is liable to be rejected.
5. It is further contended by defendant No.3 that Mrs. Naomi Meadows had fallen foul with her parents since long and her parents had severed all emotional connections with her and defendant No.3 was shown lot of concern for her well being in all respects by Mrs. Rebecca Pothan while she had been undergoing education in Bangalore under the care and concern of her grand-mother when her parents lived away in Kerala. At the time of family settlement Mrs. Rebecca Pothan had expressed her decision that she would live in the flat assigned to Mrs. Naomi Meadows and lease out her own flat to collect rental income which she wanted to give to her younger son Mathew, the second son, for his maintenance and upon her death her flat should go to the grand-daughter i.e., defendant No.3 and she had also conveyed that she would make arrangement for putting her said idea in writing by executing a Will bequeathing her flat to the defendant No.3 and some day before and close to 29.10.1990 Mrs. Rebecca Pothan did execute her flat in favour of defendant No.3 and accordingly wrote a letter in her own hand and sent it to the defendant No.1 who was then residing in Kerala. In the said 11 O.S.No.4641/2001 letter, Mrs. Rebecca Pothan had explicitly stated that she had executed a Will and that she had directed Mrs. Naomi Meadows to send a copy of the said Will to the defendant No.1 and as per her directions, Mrs.Naomi Meadows wrote a letter in her own hand on 29.10.1990 and sent the same to the defendant No.1 along with the copy of the Will duly executed by Mrs. Rebecca Pothan duly attested by a couple, who are friends of the family of the defendants. After the death of Mrs. Rebecca Pothan on 28.12.1994 when defendant No.3 enquired, the defendant No.1, after speaking to Mrs. Naomi Meadows assured to the defendant No.3 that the said flat would be conveyed to her. In February 1995, when the plaintiff informed defendant No.1 for the first time about the existence of the Will now propounded, the first defendant denied the existence of such Will executed by Mrs. Rebecca Pothan and the defendant No.3 was shocked when she saw a notice published in the Times of India dated 5.7.1995 about the plaintiff having applied for grant of probate. With this, defendant No.3 sought for dismissal of the suit.
6. After considering the rival contentions placed by the parties, this court has passed the judgment on 6.12.2006 dismissing the suit of the plaintiff filed for grant of probate 12 O.S.No.4641/2001 and also dismissed the I.A.Nos.11, 12 and 13 which were filed by the defendant Nos.1 and 2. Thereafter, being aggrieved by the judgment dated 6.12.2006, the plaintiff preferred a Regular First Appeal before the Hon'ble High Court of Karnataka in RFA No.566/2007. The Hon'ble High Court has passed the final judgment on 28.1.2014 and remanded the matter back to this Court with a direction to hear the matter afresh by permitting defendant No.4 Ms. Shobita Punja to come on record as defendant No.4.
7. Thereafter, defendant No.4 has contested the case through her counsel and filed her written statement. The defendant No.4 has filed her affidavit by way of examination- in-chief which is in line with her written statement and therefore to avoid repetition of facts, her written statement is read along with her examination-in-chief. In her examination- in-chief, defendant No.4 has stated that Mrs. Rebecca Pothan is her maternal grand-mother and Mrs. Naomi Meadows, her mother died intestate on 12.7.1998 leaving behind her as her only legal heir. It is further contended by defendant No.4 that defendant No.1 died on 14.2.2010 leaving behind his wife Mrs. Mary Pothan, his son by name Deepak Pothan and Mrs. Reesa Pothan Bethel-defendant No.3 as his legal heirs are on 13 O.S.No.4641/2001 record as Defendant Nos.1(a) and (b). Defendant No.2 is a bachelor and has no children. Mrs. Shobita, daughter of Mrs. Naomi Meadows and the grand-daughter of Mrs. Rebecca Pothan has been impleaded as defendant No.4 in the above case in terms of the final judgment passed by the Hon'ble High Court in RFA No.566/2007 dated 28.1.2014. It is stated by defendant No.4 that her mother Mrs. Naomi Meadows initially married Mr. M.R.R. Punja, a Hindu man and she is their only child. Though her mother married a Hindu, she was never treated as an outcast by the parents of her mother and was not excommunicated from the Syrian Christian Church as contended by her brothers. After her mother divorced her father, she subsequently married an Englishman by name Mr. Meadows. This also did not result in her being treated as an outcast by her parents and her mother spent the last years of her life with her mother Mrs. Rebecca Pothan, who is her maternal grand-mother. The land and old bungalow thereon bearing No.7 (old No.14) situated at Moyenville Road, Langford Town, Bangalore - 560 025 which is schedule 'A' property was originally owned by her grand- father Mr. Sydney George Pothan who died on 12.10.1990 and after his death, his widow Mrs. Rebecca Pothan and her 14 O.S.No.4641/2001 three children viz., defendants 1, 2 and Mrs. Naomi Meadows entered into a Memorandum of Family Settlement dated 13.2.1991 recording an oral settlement that had been reached between them on 17.11.1990 in respect of the estate of Late. Mr. Sydney George Pothan. It is contended by defendant No.4 that in terms of this Memorandum of Family Settlement, Mrs. Rebecca Pothan got all the movable properties of her late husband and the Schedule 'A' property was shared as follows;
1. Mrs. Rebecca Pothan - 20%
2. Mrs. Naomi Meadows - 20%
3. Defendant No.1 - 30%
4. Defendant No.2 - 30%
8. Thus the schedule 'A' property being the valuable immovable property left by the late Mr. Sydney George Pothan was divided equitably amongst his legal heirs. It is the further contention of defendant No.4 that on 15.4.1991 Mrs. Rebecca Pothan and her children entered into four agreements with a real estate development and building company by name Nandi Housing Pvt. Ltd., to develop the Schedule 'A' property into a residential apartment building, which is known as "Jacaranda Apartments", comprising several residential apartments therein. As per the said 15 O.S.No.4641/2001 agreement dated 15.4.1991, defendant No.1 would get a flat measuring about 1,600 Sq. Ft. on the ground floor and defendant No.2 would get a flat measuring about 1,000 sq. ft. on the ground floor being a bachelor and childless and Mrs. Naomi Meadows and Mrs. Rebecca Pothan would get one residential flat measuring about 825 Sq. Ft. (flat No.9) along with covered garage in schedule 'A' property and the two flats allotted to the share of Mrs. Rebecca Pothan and Mrs. Naomi Meadown were constructed in such a matter that they would be interconnected between the fourth floor flat of Mrs. Rebecca Pothan and the third floor flat of Mrs. Naomi Meadows by an internal staircase with a common main entrance only to the third floor flat of Mrs. Naomi Meadows. This arrangement was conceived so that Mrs. Rebecca Pothan and her daughter could live together in one residential premises.
9. It is further contended by defendant No.4 that Mrs. Rebecca Pothan died on 28.12.1994 leaving a Last Will and Testament dated 26.5.1992. The plaintiff in this suit is the nephew of Mrs. Rebecca Pothan. The plaintiff's father Mr. C. Chandy and Mrs. Rebecca Pothan are brother and sister. The plaintiff was named as executor of the said Will dated 16 O.S.No.4641/2001 26.5.1992 and no bequest was made to the plaintiff under the said Will. In terms of her Will dated 26.5.1992, Mrs. Rebecca Pothan bequeathed her flat on the fourth floor of the said building known as "Jacaranda Apartments" to her daughter Mrs. Naomi Meadows and thereafter to defendant No.4. But defendants 1 and 2 are in unlawful possession of the said two flats. Defendant Nos.1 and 2 filed O.S.No.509/1995 before this Court on 21.1.1995 seeking perpetual injunction against Mrs. Naomi Meadows and the builder M/s. Nandi Housing Pvt. Ltd., from interfering with their alleged lawful possession of the schedule 'B' flats belonging to Mrs. Rebecca Pothan and Mrs. Naomi Meadows. Mrs. Naomi Meadows was defendant No.2 in O.S.No.509/1995 and on 12.7.1998 defendant No.4 herein was brought on record in the said suit as legal heir of deceased defendant No.2 in the said suit wherein she has filed her written statement and has made a counter claim for possession of the schedule 'B' flats. Defendant No.4 has further contended that Mrs. Rebecca Pothan was very careful with her money as she was living only on a pension from her late husband's service with the Railways. She further states that she has seen the Will dated 26.5.1992 left by Mrs. Rebecca Pothan and she notices that it is engrossed on stamp 17 O.S.No.4641/2001 paper purchased sometime in the year 1990 and there is nothing suspicious about this since it is entirely possible that Mrs. Rebecca Pothan might have purchased the said stamp paper to make her Will or any other document but did not do so in the year 1990 when she purchased the stamp paper but when she wrote her Will in the year 1992 she might not have wanted to waste the stamp paper that she had already purchased and would have used the same to engross her Will made on 26.5.1992. Therefore, the defence set up by the defendants 1 to 3 in the above suit is frivolous, vexatious and not maintainable on facts and in law and the above suit is liable to be decreed with costs and hence prayed to grant probate of the Will dated 26.5.1992 left by Mrs. Rebecca Pothan. During the course of cross-examination of DW.4, Exs.D.12 to D.16 were marked.
10. On the basis of the above pleadings, the following issues were framed.
ISSUES
1. Whether the plaintiff proves that the Testatrix Mrs. Rebecca Pothan in a sound disposing state of mind executed the alleged Will dt.26.5.1992 ?
18 O.S.No.4641/2001
2. Whether the defendants prove that the Testatrix was overtaken by senility and loss of memory and was not in a sound and disposing state of mind from early 1992 till her death on 28.12.1994 ?
3. Whether the defendants prove that the Will dated 26.5.1992 was executed under duress and under the influence of Mrs. Naomi Meadows?
4. Whether the defendants prove that the Testatrix had executed a Will in October 1990 ?
11. During trial, PWs.1 to 4 and Dws.1 to 3 were examined and Exs.P.1 to P.10 and Ex.D.1 to D.11 were marked. After remand, defendant No.4 has been examined as DW.4 and Exs.D.12 to D.16 were got marked.
12. Heard the arguments of the learned Advocates appearing for the plaintiff, defendant No.1(a), 1(b), defendant No.2, the Advocate for defendant No.3, the Advocate for defendant No.4. Perused the written arguments filed by the Advocate for the plaintiff, defendant No.1(a), 1(b), defendant 19 O.S.No.4641/2001 No.2, defendant No.3 and defendant No.4. For the reasons recorded hereunder, my answer to the above issues are as follows;
Issue No.1 : In the negative.
Issue No.2 : In the negative.
Issue No.3 : In the negative.
Issue No.4 : Does not arise for consideration.
REASONS
13. Issue Nos.1 to 3: I have taken up all these three issues for consideration together for the purpose of convenience as they are inter-linked to avoid repetition of discussion and evidence.
The plaintiff claims to be the executor appointed under the Will sought to be probated. According to him, Mrs. Rebecca Pothan, the mother of defendants 1 and 2 and grand-mother of defendant Nos.3 and 4 herein executed a Will dated 26.5.1992 wherein, he was appointed as executor to implement the bequeath made under the testament. Thus, the plaintiff is the propounder of the Will said to have been executed by Mrs. Rebecca Pothan on 26.05.1992 and therefore he has to establish that Mrs. Rebecca Pothan 20 O.S.No.4641/2001 executed the said Will while she was in sound disposing state of mind. Of course, it is settled law by catena of decisions that the propounder of the Will has to remove the suspicious circumstances if any surrounding the execution of the Will. The defendant Nos.1 to 3 in the written statement have contended that the testatrix was over taken by senility and loss of memory and therefore she was not in a sound disposing state of mind from early 1992 till her heath in the year 1994 and therefore she was not in a sound disposing state of mind to execute the Will on 26.5.1992 till her death in the year 1994 and therefore she was not in a sound disposing state of mind to execute the Will on 26.5.1992. It is also their further defence that the Will sought to be probated even if it had been executed by Mrs. Rebecca Pothan, it has been executed under the duress and under the influence of Mrs. Naomi Meadows, the mother of defendant No.4.
14. The rules laid down in Clause(a) to (c) of Sec.63 of the Succession Act is required to be satisfied to prove a Will. The three important rules governing execution of a Will are (i) It should be attested by two or more witnesses, (ii) The testator should sign the document in the presence of witnesses or the witnesses should receive a personal 21 O.S.No.4641/2001 acknowledgment from the testator about he signing the document, and (iii) The witnesses should sign the documents in the presence of the testator. The compliance of first among these rules can be seen by the apparent perusal of the document. Compliance of second and third rules noted above can be established by two methods, viz., (i) by specific statements in that behalf, in the document itself and (ii) by examining the attesting witnesses if they are alive, or by examining the scribe of the document or any other witness, if he had seen the testator signing the document in the presence of attesting witnesses and the witnesses signing the document in the presence of the testator. Presence of specific statements to this effect in the document itself would raise strong presumption as to the regularity of the document as held by the Hon'ble Supreme Court in the case of Subodh Kumar Banerjee Vs. Shashi Kumar Banerjee, reported in AIR 1994 SC. 529.
15. Notwithstanding the fact whether or not a party to the proceeding disputed the genuineness of a Will propounded by the other party, the Court cannot accept the document as a Will unless it is shown to have complied with the rules laid down u/Sec.63 of the Succession Act, and the 22 O.S.No.4641/2001 said document has been proved as required by Secs. 68 and 69 of the Evidence Act. Even if the document is shown to have complied with all the rules of Sec.63 of the Succession Act and though the other party has not disputed the genuineness of the document, the Court cannot hold that the document has been proved unless the conditions of Secs.68 or 69 are satisfied as Sec.68 of the Evidence Act prohibits the Court from using a Will as evidence in proof of execution, unless at least one attesting witness, if alive, is examined.
16. The original Will sought to be probated in this case has been marked as Ex.P.1. The apparent tenor of Ex.P.1 indicates that it bears the signatures of two attesting witnesses and it has also been stated therein that the testator affixed her signature to it in the presence of the attesting witnesses and thereafter the attesting witnesses in the presence of testator subscribed their signatures to it. Merely because the apparent tenor of document conforms to the requirement of Sec.63 of the Indian Succession Act, it cannot ipso facto be held that the Will has been proved in accordance with law. As noticed above, since the Will is compulsorily attestable document under law, for the purpose of using the same as evidence in a case, it has to be proved in terms of 23 O.S.No.4641/2001 Sec.68 of Indian Evidence Act by examining at least one of the attesting witness if alive. The object of this requirement is to find out as to whether the testator did execute the Will and at that time he or she was in a sound disposing state of mind, and whether the testator affixed the signature or mark in the presence of the attesting witness and the attesting witness/es attested the will in the presence of the testator as required by Sec.63 of the Indian Succession Act.
17. In the case on hand, according to the apparent tenor of Ex.P.1, the attestors are Mrs. Ruby Gazder and Mrs. Dorthy Mary Castelino. It is undisputed that both these persons are alive. To prove the execution of the Will the plaintiff has examined Mrs. Ruby Gazder as PW.1. PW.1 in her oral evidence has stated that she knows the family of Pothan right from the year 1984 since they were residing in the same road. According to her, she did attest the Will of Mrs. Rebecca Pothan in the year 1992, but she cannot tell the exact date. She has further stated that the Will was executed in mrs. Rebecca Pothan's apartment situated at 5th Floor of Landmark Apartments, Moyenville Road, Bangalore. According to her, Mrs. Rebecca Pothan called her to attest the Will, which has been marked as Ex.P.1. She has further 24 O.S.No.4641/2001 stated that when she attested the Will, herself, Mrs. Castelino and Mrs. Rebecca Pothan were present. She has further stated that she knows Mrs. Naomi Meadows, who is the daughter of Mrs. Rebecca Pothan, very well. Naomi Meadows was not present. It is her further evidence that Dorthy Mary Castelino is the neighbour of Mrs. Rebecca Pothan and Mrs. Dorthy Mary Castelino has also attested the Will. She has further stated that Mrs. Rebecca Pothan executed the Will in the presence of herself (PW.1) and Dorthy Mary Castelino. She has further stated that Dorthy Mary Castelino attested the Will in the presence of Mrs. Rebecca Pothan. According to her, she signed the Will first and thereafter Mrs. Dorthy Mary Castelino attested the Will. She has further stated that she subscribed her signature on the Will in the presence of Mrs. Rebecca Pothan and Mrs. Dorthy Mary Castelino. According to her, the attestation of the Will was before lunch and the execution of the document as well as its attestation took nearly about 15 to 20 minutes. She has further stated that Mrs. Rebecca Pothan informed her and Mrs. Dorthy Mary Castelino about the contents of the Will. She has further stated that Mrs. Rebecca Pothan executed the Will, she must have been 80 years of age. She has further stated that she 25 O.S.No.4641/2001 used to visit Mrs. Rebecca Pothan once in two days, some times for lunch also and Mrs. Rebecca Pothan was also visiting her in her residence. She has further stated that at the time of execution of the Will, she was residing in 3rd Floor and Mrs. Rebecca Pothan was residing in the 5th Floor. She has further stated that at the time of execution of Will Mrs. Rebecca Pothan was in good health. According to her, Mrs. Rebecca Pothan lived in a two bedroom apartment in the 5th Floor of Landmark Apartment and the said apartment had a drawing room, kitchen and toilet. According to her, the Will was signed by all of them on the dining table. She has further stated that at the time of execution of the Will, Mrs. Rebecca Pothan was in her full sense and she did understand the contents of the Will. She has further stated that the relationship between Mrs. Rebecca Pothan and Mrs. Naomi Meadows was cordial and she was keeping very well. She has further stated that she knows Mr. Lalith Pothan, Mr. Mathew Pothan and Ms. Reesa Pothan. According to her, when she was staying in Landmark apartment, these persons were visiting Mrs. Rebecca Pothan. She has further stated that Lalith Pothan used to come and stay with Mrs. Rebecca Pothan in the Landmark apartment during holidays. She has 26 O.S.No.4641/2001 further stated that when the Will was executed she had no idea where Mr. Mathew Pothan and Ms. Reesa Pothan were residing. She has further stated that Mrs. Rebecca Pothan was not the type of lady who could be influenced by others. According to her, when Mrs. Rebecca Pothan executed the Will, she was neither depressed nor dejected nor she was afraid of anything. She has further stated that Mrs. Naomi Meadows was an active worker and she was involved in many social activities and was also an active participant in INTACH activities, which is an organization for preserving Heritage of Art and Cultural Activities. She has identified the signature of Mrs. Rebecca Pothan on Ex.P.1 at Ex.P.1(a) and P.1(c). She has further identified her signature as Ex.P.1(b) and (d). She has identified the signature of Mrs. Dorthy Mary Castelino as Ex.P.1(e) and (i). This witness has been cross-examined at length before the Hon'ble High Court by the learned counsel for the defendant Nos.1 to 3. In the cross-examination it is elicited from her that Mrs. Rebecca Pothan and her sons were living in No.7, Moyenville Road, Bangalore and it is not far from Landmark apartment. It is elicited that she (PW.1) was living in the Landmark apartment since March 1984 and earlier to that she was living in Nagpur. It is elicited that she 27 O.S.No.4641/2001 was living all alone in the Landmark apartment. It is elicited from her that Mrs. Naomi Meadows was a divorcee and PW.1 was in frequent contacts with Mrs. Naomi Meadows. Few answers have been elicited from this witness about the marriage of Mrs. Naomi Meadows with a person outside the community, etc. In my considered view, those answers are not relevant for our purpose. It is an admitted fact that at the time of the alleged date of the Will sought to be probated and on the date of her death, Mrs. Rebecca Pothan was living with her daughter Mrs. Naomi Meadows. Therefore, the fact as to whether the parents of Mrs. Naomi Meadows liked her marrying a person from outside their community has no relevance.
18. It is further elicited from PW.1 that before Pothan's family shifted to Landmark apartment, they were staying at No.7, Moyenville Road, Bangalore. It is elicited from her that the family of Pothan shifted the residence from No.7, Moyenville Road, Bangalore to Landmark apartment with an intention to develop House No.7, Moyenville Road, Bangalore sometime after the death of Mr. Sydney George Pothan, the husband of Mrs. Rebecca Pothan. It is elicited from her that Mr. Mathew Chandy Pothan was not living with 28 O.S.No.4641/2001 Mrs. Rebecca Pothan when she was residing at Landmark apartment, she has admitted that Mr. Mathew Chandy Pothan was unemployed at that particular point of time and therefore he was dependent upon Mrs. Rebecca Pothan for his livelihood. It is elicited upon Mrs. Rebecca Pothan for his livelihood. It is elicited from her that after Mrs. Rebecca Pothan shifted she had some ailments, but she does not know whether the doctors were visiting Mrs. Rebecca Pothan in the Landmark apartment. According to her, she does not know whether Mrs. Rebecca Pothan was admitted to any nursing home one year after coming to Landmark apartment until her death. It is elicited from her that she knows one Dr. Maman, who was working in Republic Nursing Home and she also knows that Dr. Maman did attend Mrs. Rebecca Pothan for her ailments in the Landmark apartment. As the witness stated that she attested the Will in the month of May 1992, the learned counsel for the defendants asked the witness as to whether she understand the meaning of the expression 'attested'. The question was opposed by the learned counsel for the plaintiff. However, the court overruled the objection. According to the witness, attesting a Will means, going through the Will and signing as a witness. It is further 29 O.S.No.4641/2001 elicited that on 22.5.1992 was her birthday and on that day Mrs. Rebecca Pothan had come to her apartment and requested her to come to her apartment on 26.5.1992 to sign a Will. It is further elicited from her that on 22.5.1992 when Mrs. Rebecca Pothan came to her residence, Mrs. Naomi Meadows and others were also with Mrs. Rebecca Pothan. It is further elicited that when pw.1 went to the apartment of Mrs. Rebecca Pothan, the contents were read over by Mrs. Rebecca Pothan and therefore she understood the contents of the Will and it is only after understanding the contents she attested the Will. It is further stated that as far as she remember, each one of the children of Mrs. Rebecca Pothan was getting one apartment in Jacaranda apartments and No.7 Moyenville Road, Bangalore and Mrs. Reesa Pothan was not getting anything under the Will. According to her, she does not remember as to whether other than the apartment referred to by her Mr. Mathew Chandy Pothan was getting anything else under the Will. It is elicited from her that she knows that Mr. Jagan chandy was the cousin of Mrs. Rebecca Pothan and he used to visit Mrs. Rebecca Pothan in the Landmark apartment.
30 O.S.No.4641/2001
19. It is further elicited from her that when the contents of the Will were read over to her, she came to know that Mr. Jagan chandy would be the executor of the Will. It is further elicited from her that she has seen Mrs. Rebecca Pothan's family actually shifting from No.7, Moyenville Road house to Landmark apartment along with their belongings. She has admitted the suggestion that Mr Lalith Pothan used to come and stay with Mrs. Rebecca Pothan occasionally i.e., during school vacations. She has admitted that the said Mr. Lalith Pothan had a wife, a son by name Mr. Deepak Pothan and a daughter by name Ms. Reesa Pothan. However, she has stated that she has not seen Mr. Lalith Pothan's family staying with Mrs. Rebecca Pothan. She has pleaded her ignorance to the suggestions that there were frequent quarrels between Mr. Mathew Pothan and Mrs. Naomi Meadows. She has denied the suggestion that just before the execution of the Will dated 26.5.1992 Mrs. Rebecca Pothan was suffering from high fever, neck pain and delirium. She has pleaded her ignorance to the suggestion that Dr. Maman had treated Mrs. Rebecca Pothan during the first half of May 1992 for the aforesaid ailment. She has denied the further suggestions that when Mr. Lalith Pothan visited Mrs. Rebecca 31 O.S.No.4641/2001 Pothan some time during May 1992, she was suffering from the aforesaid ailments and when he wanted to take her to the Doctor/ Hospital Mrs. Naomi Meadows refused to give permission. It is elicited from her that Mrs. Naomi Meadows has only one daughter by name Mrs. Shobita and the said Mrs. Shobita is present before the Court and the said Mrs. Shobita was present before the court on the previous day also. She has stated that she cannot remember Mrs. Shobita was in Bangalore or Delhi just prior to the execution of the Will. It is further elicited from her that on 26.5.1992 she went first to Mrs. Rebecca Pothan's apartment and thereafter they sent words for Mrs. Castelino and Mrs. Castelino took 5 or 10 minutes to come to Mrs. Rebecca Pothan's apartment. It is further elicited from her that Mrs. Rebecca Pothan did not tell her as to who drafted the Will. It is further stated that when the contents of the Will was read over to her, she was sure that the Will was made by Mrs. Rebecca Pothan herself. By showing the original Will Ex.P.1 to the witness it has been elicited from her that the stamp paper is purchased in the name of Mrs. Naomi Meadows on 25.10.1990 and the stamp paper had been released from the Treasury on 16.10.1990. It is further elicited from her that at no point of time Mrs. 32 O.S.No.4641/2001 Naomi Meadows told anything with regard to the Will that was written by her mother Mrs. Rebecca Pothan around 29.10.1990. she has further stated that Mrs. Rebecca Pothan told her not to divulge the execution of the Will by her to anyone. It is elicited from her that she came to Bangalore from Nagpur some time in the year 1984 and she went back to Nagpur in the month of January 1997. It is further elicited from her that at the time when she attested the Will, she was using power glasses. However, she has denied the suggestion that she had a very serious cataract problem during that time. She has denied the further suggestion that she signed the Will at the suggestion of Mrs. Naomi Meadows and not Mrs. Rebecca Pothan on 26.5.1992. She has further denied that Mrs. Naomi Meadows brought the Will executed by Mrs. Rebecca Pothan to her (PW.1's) apartment to obtain her signature. She has denied the suggestion that she did not see Mrs. Rebecca Pothan signing the Will dated 26.5.1992. she has asserted that Mrs. Rebecca Pothan did sign the Will. She has denied the further suggestion that Mrs. Castelino also present at the time of signing the Will by Mrs. Rebecca Pothan. She has denied the further suggestion that she did not sign the Will in the presence of Mrs. Rebecca Pothan. She 33 O.S.No.4641/2001 has denied the suggestion that with a view to favour Mrs. Naomi Meadows and her daughter she has deposed falsehood.
20. Now the question to be considered as to whether the evidence of PW.1 proves the execution of the will in accordance with law. In the case of H. Venkatachala v. B.N. Thimmajamma and others reported in AIR 1959 Supreme Court 443, Hon'ble Supreme Court has laid down as to what kind of evidence should be produced before the court to establish the genuineness and authenticity of the Will. In paras 18 to 20 of the said Judgment, it is held as under;
"(18) What is the true legal position in the matter of proof of wills? It is well known that the proof of wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose.
Under S.67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for 34 O.S.No.4641/2001 proving such a handwriting under Ss.45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law.
Similarly, Ss.59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these 35 O.S.No.4641/2001 provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S.63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
(19) However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon 36 O.S.No.4641/2001 to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
(20)There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated ; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate 37 O.S.No.4641/2001 that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
In the case of Smt. Jaswant Kaur vs. Smt. Amrit Kaur and ors, reported in AIR 1977 S.C.74, in para No.9 it is held as under;
"In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience 38 O.S.No.4641/2001 of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will."
In Janaki Narayan Bhoir vs. Narayan Namdeo Kadam, reported in AIR 2003 S.C.761, the Hon'ble Supreme Court while dealing with the proof of execution of the Will has observed thus in para No.10;
"On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the Will was duly and validly executed. That cannot be done by simply proving that the signature of the Will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a 39 O.S.No.4641/2001 concession to those who want to prove and establish a Will in a Court of law by examining at least one attesting witness even though Will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a Will. To put in other words, if one attesting witness can prove execution of the Will in terms of clause (c) of section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by other witness also it falls short of attestation of Will at least by two witnesses for the simple reason that the execution of the Will does not merely mean the signing of it by the testator but it means fulfilling the proof of all the formalities required under Section63 of the succession Act. Where one attesting witness examined to prove the Will under Section 68 of the Evidence Act fails to prove the due execution of the Will then the other available attesting witness has to be called to 40 O.S.No.4641/2001 supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."
21. No doubt, as noticed above, PW.1 in her oral evidence has stated that Ex.P.1(a) and P.1(c) are the signatures of Mrs. Rebecca Pothan. Of course, during the cross-examination of PW.1, there is no suggestion put to her that Ex.P.1(a) and P.1(c) are not the signatures of Mrs. Rebecca Pothan. The learned counsel for the plaintiff drew the attention of the Court to the suggestions put to PW.1 during the course of cross-examination found at page 12 of the deposition and contended that these suggestions indicate that the defendants have not disputed the signatures of Mrs. Rebecca Pothan appearing in Ex.P.1. He also contended that this Court while disposing of the application filed by the defendants, after referring to the suggestions has rejected the prayer of the defendants to summon certain documents by holding that these suggestions indicate that the defendants have not disputed the signatures of Mrs. Rebecca Pothan in 41 O.S.No.4641/2001 Ex.P.1 and therefore he contended that the plaintiff has proved the signatures of Mrs. Rebecca Pothan in Ex.P.1.
22. No doubt, during the course of cross-examination of PW.1 it has been suggested on behalf of defendant Nos.1 to 3 that Mrs. Naomi Meadows brought the Will executed by Mrs. Rebecca Pothan to her (PW.1's) apartment to obtain her signatures. It is further suggested to this witness that Mrs. Castelino was also not present at the time of signing the Will by Mrs. Rebecca Pothan. Of course, the witness has denied these suggestions. These suggestions perhaps indicate that the defendant Nos.1 to 3 have accepted that Mrs. Rebecca Pothan has signed the Will Ex.P.1.
23. No doubt, the aforesaid suggestions would indicate that the defendants have not disputed the signatures of Mrs. Rebecca Pothan in Ex.P.1 and there is also no direct suggestion put to PW.1 to the effect that Ex.P.1(a) and P1(c) are not the signatures of Mrs. Rebecca Pothan. Nevertheless, it is also suggested to PW.1 in the cross-examination that she did not see Mrs. Rebecca Pothan signing the Will dated 26.5.1992 and that she did not see D. Castelino signing Ex.P.1. This suggestion would indicate that the defendant 42 O.S.No.4641/2001 Nos.1 to 3 did dispute the signatures of Mrs. Rebecca Pothan on Ex.P.1. If the entire evidence of PW.1 is read as a whole, it indicates that the defendants have disputed the signature of Mrs. Rebecca Pothan in Ex.P.1. In the light of this, it is necessary to find out as to whether the signatures marked as Ex.P.1(a) and P.1(c) are the signatures of Mrs. Rebecca Pothan. In this behalf, it is necessary to note the evidence of PW.2 Mr. Jagan Chandy, who is the plaintiff in this case. During the course of cross-examination, PW.2 has stated that he is familiar with the handwriting of testatrix. He has also stated that reasonably he is familiar with the signatures of Mrs. Rebecca Pothan. At page No.25 of deposition of PW.2 he has stated that he was not present when the witnesses testified the Will Ex.P.1. He has further stated that he is not hundred percent sure that the signatures contained in the Will are the signatures of Mrs. Rebecca Pothan. Thus, PW.2, who is the propounder of the Will and who claims that he is familiar with the handwriting and signatures of Mrs. Rebecca Pothan is not hundred percent sure as to whether the signatures contained in the Will are that of Mrs. Rebecca Pothan or not. It is in this context, it is necessary to verify the signatures stated to be that of Mrs. Rebecca Pothan 43 O.S.No.4641/2001 appearing in Ex.P.1. Section 73 of the Indian Evidence Act empowers the Court to compare the signatures, writing or seal with other admitted or proved signatures. The comparison of the signatures found on Ex.P.1 at Ex.P.1(a) and P.1(c) indicates marked differences between the two signatures. If these two signatures are compared even to the naked eye there are more dissimilarities than similarity between them. To illustrate, the letters 'B' and 'P' appearing in Ex.P.1(c) is entirely different from the corresponding letters appearing in Ex.P.1(a). Even to the naked eye in the light of the marked differences and dissimilarities, it leads to an impression that these two signatures are not of same person. Ex.D.6 marked through PW.4 is a zerox copy of an agreement dated 1.4.1991 between Mrs. Rebecca Pothan and M/s. Nandi Housing Private Limited. PW.4 during the course of cross- examination has admitted that it is a zerox copy of an agreement entered into between Mrs. Rebecca Pothan and M/s. Nandi Housing Private Limited and the original of it is in the said Company. Thus, Ex.D.6 is an admitted document. The perusal of Ex.D.6 shows that it bears the signatures of Mrs. Rebecca Pothan. If one compares the signature of Mrs.Rebecca Pothan found in Ex.D.6, which is an admitted 44 O.S.No.4641/2001 document, with the signatures marked as Ex.p.1(a) and P.1(c), even to the naked eye it is possible to hold that Ex.P.1(a) and P.1(c) are not the signatures of Mrs. Rebecca Pothan. The date of Ex.D.6 and the purported date of Ex.p.1 indicate that they are almost contemporaneous documents. Therefore, the signatures found on Ex.D.6, which is an admitted document, is a good basis for comparison. No doubt, the defendants have not taken steps to get these signatures compared by handwriting expert and opinion of an expert is not available. Nevertheless, as noted above Section 73 of the Indian Evidence Act empowers the court to compare the disputed signatures with admitted signatures. Therefore, there is no impediment for this Court to compare these signatures. The inference that Court is drawing on comparison of these signatures gains corroboration from the very answers elicited from PW.2 who is the propounder of the Will, wherein he has stated that he is not hundred percent sure as to whether the signatures contained in the Will are not the signatures of Mrs. Rebecca Pothan.
24. In addition to the aforesaid discrepancy, there is one other marked discrepancy in Ex.P.1. According to PW.1, Ex.P.1(e) and P.1(f) are the signatures of Mrs. Dorthy Mary 45 O.S.No.4641/2001 Castelino, the other attesting witness. However, at Ex.P.1(e), the signature reads as 'D. Castelino', whereas at Ex.P.1(f), it looks as if somebody has written the name of Mrs. Dorthy Mari Castelino. If Ex.P.1(e) is the signature of 'D. Castelino, then Ex.P.1(f) cannot be the signature of the very same person. At this stage, it may also be noted here that the original probate petition bears the declaration by the attesting witness to the Will and it bears the signature of Mrs. Dorthy Mary Castelino. The signature of Mrs. Dorthy Mary Castelino found in the original petition reads 'D. Castelino' which is similar to Ex.P.1(e). If Ex.P.1(f) is compared with the signatures of D. Castelino appearing in the original probate petition, there is no difficulty in holding that Ex.P.1(f) is not the signature of D. Castelino. This discrepancy has not been explained either by PW.1 or by PW.2 or by DW.4.
25. It may also be noted here that in the original probate petition, in respect of declaration made by D. Castelino, it has been stated that she is one of the witnesses of the last will and testament of Mrs. Rebecca Pothan, the testatrix mentioned in the petition and that she was present and saw the testatrix affix her signatures to the said Will. However, the similar declaration has not been found in 46 O.S.No.4641/2001 respect of Mrs. Ruby Gazder, who has been examined as PW.1. In the declaration in respect of Mrs. Ruby Gazder, it is merely stated that she is one of the witnesses to the last Will and testament of Mrs. Rebecca Pothan. In this declaration she has not stated that she was present and saw the testatrix affix her signatures to the Will. This discrepancy has not been explained by PW.1 during her evidence. This circumstance creates great amount of doubt about the genuineness of the Will Ex.P.1.
26. It is material to note that though the contents of Ex.P.1 are typewritten, no where in the typewritten portion the date of the will has been mentioned. Therefore, it is not clear as to on what date the contents of Ex.p.1 were typed. It is only at the bottom of first page and below the signature Ex.P.1(a) in the second page the date has been written in hand as 26th May 1992. While writing the year 1992 in the bottom of page No.1 there is overwriting. There is no explanation as to why the date of the document has not been typed and why there is overwriting.
27. PW.1 during her cross-examination has repeatedly stated that the contents of the Will were read over. It is also 47 O.S.No.4641/2001 her say that Mrs. Rebecca Pothan did inform herself and Mrs. Dorthy Mary Castelino about the contents of the Will. It is further elicited from PW.1 that when she went to Mrs. Rebecca Pothan's apartment on 26th May the contents of the Will were read over to her by Mrs. Rebecca Pothan and she (PW.1) understood the contents of the Will and it is only after understanding the contents she (PW.1) witnessed the Will. It is further elicited from PW.1 that as far as she remember, each one of the children of Mrs. Rebecca Pothan was getting one apartment in Jacaranda Apartments and No.7, Moyenville Road under the Will. However, the reading of the contents of Ex.P.1 indicates that there was no bequeath in favour of any of the sons of Mrs. Rebecca Pothan nor there is any reference to the effect that each one of the children of Mrs. Rebecca Pothan was getting one apartment in Jacaranda Apartment and No.7 Moyenville Road. Therefore, this circumstance creates great amount of doubt as to whether Ex.P.1 was the Will, which was said to have been executed by Mrs. Rebecca Pothan as stated by PW.1.
28. During the course of cross-examination of PW.1, it has been elicited that the stamp paper on which Ex.P.1 was written has been purchased by Mrs. Naomi Meadows and 48 O.S.No.4641/2001 bears the date as 25.10.1990. The perusal of stamp paper of Ex.P.1 indicates that it was purchased by Mrs. Naomi Meadows on 25.10.1990. As per the contents of Ex.P.1, the beneficiary of the flat, which Mrs. Rebecca Pothan was to get is her daughter Mrs. Naomi Meadows. It is not forthcoming as to why Mrs. Rebecca Pothan choose to execute the Will on a stamp paper which was purchased by Mrs. Naomi Meadows on 25.10.1990. The learned counsel for the plaintiff during the course of arguments sought to explain that the testatrix without knowing that the stamp paper has been purchased in the name of Mrs. Naomi Meadows must have used the same as the stamp paper was available in the house. This explanation is not forthcoming from the mouth of any of the witnesses. Therefore, this cannot be accepted as an explanation. Admittedly, Mrs. Rebecca Pothan was living with Mrs. Naomi Meadows till her death. In the absence of any satisfactory explanation, this circumstance also creates great amount of suspicion about the genuineness of Ex.P.1.
29. As per the contents of Ex.P.1, the testatrix was residing at No.7, Moyenville Road, Longford Town, Bangalore as on the date of its execution viz., on 26.5.1992. Therefore, from the apparent tenor of Ex.P.1 it is noticed that Ex.P.1 has 49 O.S.No.4641/2001 been executed at No.7, Moyenville Road, Longford Town, Bangalore. PW.1 in her examination-in-chief itself has stated that at the time of execution of the Will she was residing at III Floor of Landmark apartment and Mrs. Rebecca Pothan was residing in V floor. It is the further say of PW.1 that the Will was signed in the two bedroom apartment in V floor of Landmark apartment where Mrs. Rebecca Pothan was living. However, the contents of Ex.P.1 do not indicate that it was executed in the Landmark apartment where Mrs. Rebecca Pothan was stated to be residing. Ex.D.3 is the letter dated 2nd May 1992 from M/s. Nandi Housing Private Limited which indicates that M/s. Nandi Housing Private Limited has received the keys of the premises bearing No.7 Moyenville Road, Longford Town, Bangalore from George Verghese. The contents of Ex.D.3 are not disputed. In fact, PW.4 in his evidence has admitted Ex.D.3. Therefore, from Ex.D.3, it is clear that prior to 2.5.1992 itself Mrs. Rebecca Pothan had shifted from No.7, Moyenville Road, Longford Town, Bangalore. From this, it is clear that as on 26.5.1992 Mrs. Rebecca Pothan was not living in No.7, Moyenville Road, Longford Town, Bangalore. Therefore, Ex.P.1 could not have been executed on 26.5.1992 at No.7 Moyenville Road, 50 O.S.No.4641/2001 Longford Town, Bangalore as stated in Ex.P.1. This also creates great amount of suspicion about the genuineness of Ex.P.1. In this regard, the learned counsel for the plaintiff contended that the only explanation that could be offered by the plaintiff in this regard is that Ex.P.1 must have been typed while Mrs. Rebecca Pothan was residing at No.7, Moyenville Road, Longford Town, Bangalore and by the date of its execution she might have shifted to Landmark apartment. However, again this explanation has not come out from the mouth of any of the witnesses. As noticed above, PW.1 has repeatedly stated that the contents of the Will were read over by Mrs. Rebecca Pothan and it is only after understanding the contents the document was signed. If that is so, an explanation should have come from PW.1 as to why this discrepancy about the place of execution. In my considered view, the circumstances discussed above create great amount of suspicion about the genuineness of Ex.P.1 and its due execution by Mrs. Rebecca Pothan. The evidence of PW.1 do not inspire the confidence of the Court with regard to the execution of Ex.P.1 by Mrs. Rebecca Pothan. There is no explanation from the propounder of the Will as to why Mrs. Rebecca Pothan intend to break the natural succession 51 O.S.No.4641/2001 of her estate by her two sons and why she chose to bequeath her flat only to her daughter. In the absence of any explanation in this regard, the bequest as found in Ex.P.1 is unnatural. This is another circumstance, which creates suspicion as to the genuineness of Ex.P.1.
30. The plaintiff has not been able to dispel all these suspicious circumstances by cogent and acceptable evidence. The evidence of PW.1 does not inspire the confidence of the court with regard to execution of Ex.P.1 by Mrs. Rebecca Pothan, therefore, her testimony cannot be accepted. As the evidence of PW.1 do not inspire the confidence of the Court and do not satisfactorily establish the execution of Ex.P.1 by Mrs. Rebecca Pothan, Ex.P.1 has not been proved in accordance with Section 68 of the Indian Evidence Act as the other witness has not been examined. As observed by the Hon'ble Supreme Court in Janaki Narayan Bhoir's case (AIR 2003 SC 763), if one attesting witness examined fails to prove due execution of the Will, then the other available witness has to be called to supplement his evidence to make it complete in all respects. However, though the other alleged attesting witness is alive she has not been examined. As stated above, the evidence of PW.1 that the signatures at Ex.P.1(e) and (f) 52 O.S.No.4641/2001 are the signatures of Mrs. Dorthy Mary Castelino cannot be accepted. Therefore, her evidence does not prove the signatures of the other attesting witness. Under these circumstances, the requirement of Section 68 of Indian Evidence Act has not been complied, as the other attesting witness has not been examined.
31. The defendant No.4 who has added after remand has been examined as DW.1 and in her evidence affidavit she has stated that she has already filed her written statement supporting the case of the plaintiff. DW.4 in the cross- examination has deposed that she was not present at the time of execution of the Will and she has not seen the attesting witnesses signing it and she was not aware where it was executed. DW.4 is beneficiary/ legatee under the Will. The evidence of DW.4 does not help the case of the plaintiff in removing suspicious circumstances.
32. Apart from the evidence of PW.1, there is no other evidence placed by the plaintiff to show that as on the purported date of Ex.P.1, Mrs. Rebecca Pothan was in sound disposing state of mind. As noticed earlier, it is the duty of the propounder of the Will to prove the due execution of the 53 O.S.No.4641/2001 Will by the testatrix and also to prove that the Will has been executed when the testatrix was in sound disposing state of mind. If the evidence of PW.1 as observed, does not inspire the confidence of this Court, her evidence cannot be a basis to hold that the propounder of the Will has proved that the testatrix was in sound disposing state of mind as on the purported date of execution of Ex.P.1. There is no positive evidence except the evidence of PW.1 to establish the sound disposing state of mind of Mrs. Rebecca Pothan as on 26.5.1992. Therefore, I hold that the plaintiff has utterly failed to prove both due execution of the Will Ex.P.1 by Mrs. Rebecca Pothan and the fact that Mrs. Rebecca Pothan was in sound disposing state of mind as on that date.
33. The defendants have contended that the testatrix was overtaken by senility and loss of memory and was not in sound and disposing state of mind from early 1992 till her death on 28.12.1994. In this regard, on behalf of the defendants, the second defendant has been examined as DW.1. In his examination-in-chief by way of affidavit, DW.1 has not stated anything with regard to his mother having been overtaken by senility and loss of memory. Therefore, his evidence is of no assistance in proving this fact. DW.2 is one 54 O.S.No.4641/2001 Dr. A.C. Abraham. Examination-in-chief by way of affidavit of DW.2 was filed on 13.8.2003 in order to prove the physical and mental condition of Mrs. Rebecca Pothan. However, DW.2 was not subjected for cross-examination and on 8.1.2004 it was submitted that the witness is in USA and the defendants do not know as to when he is likely to return to India. Under those circumstances, the affidavit evidence of DW.2 was eschewed from consideration. Therefore, there is no need to refer to the evidence of DW.2.
34. DW.3 is one Deepak George Pothan, who is the son of first defendant Lalit Samuel Pothan, in his examination-in-chief filed by way of affidavit, he has not stated anything about the physical and mental condition of Mrs. Rebecca Pothan in or about the purported date of Ex.P.1. Therefore, there is absolutely no evidence placed by the defendants to establish that the testatrix was overtaken by senility or loss of memory from early 1992 till her death on 28.12.1994. The defendants have not produced any documentary evidence. To show that Mrs. Rebecca Pothan was suffering from any kind of ailments. Under these circumstances, I hold that the defendants have failed to prove 55 O.S.No.4641/2001 that Mrs. Rebecca Pothan was overtaken by senility or loss of memory from early 1992 till her death on 28.12.1994.
35. The defendants have also contended that the Will dated 26.5.1992 was executed under duress and under the influence of Mrs. Naomi Meadows. Admittedly, Mrs. Rebecca Pothan was in the company of Mrs. Naomi Meadows for few years before her death. The evidence on record also clearly indicates that on the purported date of Ex.P.1 Mrs. Rebecca Pothan was under the care and custody of Mrs. Naomi Meadows. Ex.P.1 has been written on the stamp paper purchased by Mrs. Naomi Meadows. Mrs. Naomi Meadows is the main beneficiary under Ex.P.1. However, the circumstances by themselves do not indicate that Mrs. Naomi Meadows exercised duress on her mother to execute the Will. Therefore, there is no satisfactory evidence placed by the defendants to establish that the Will dated 26.5.1992 was executed under duress and under the influence of Mrs. Naomi Meadows. In view of the above discussion, I answer Issue Nos.1 to 3 in the negative. In view of my finding on Issue No.1 in the negative, the plaintiff is not entitled for grant of probate as sought in the suit since he has failed to prove the 56 O.S.No.4641/2001 due execution of Ex.P.1 Will by Mrs. Rebecca Pothan, though the Issue Nos.2 and 3 are answered in the negative.
36. Issue No.4: Though the defendants have contended that Mrs. Rebecca Pothan executed the Will in October 1990, the said Will has not been produced before this Court nor the defendants have examined any witness to prove the alleged Will executed in October 1990 as required by Section 68 of the Indian Evidence Act. Copy of Will of October 1990 has been marked in the cross of DW.4 as Ex.D.15. DW.4 has denied existence and execution of the Will of October 1990. In any case, in this proceeding initiated by the plaintiff for grant of probate, the question as to whether Mrs. Rebecca Pothan had executed earlier Will in October 1990 is not relevant for the reason that in this proceeding the defendants have not sought for grant of probate based on the Will said to have been executed by Mrs. Rebecca Pothan during October 1990 nor they have sought for declaration of their title to the property based on the said Will by making a counter claim by paying necessary court fee. Therefore, I am of the considered view that Issue No.4 framed in this suit does not arise for consideration, having regard to 57 O.S.No.4641/2001 the scope of this proceeding. Hence, I answer issue No.4 accordingly.
37. In the light of my answers on the aforesaid issues, I hold that the suit of the plaintiff is liable to be dismissed. In the result, I proceed to pass the following;
ORDER Suit of the plaintiff for grant of probate is hereby dismissed.
In the circumstances of the case, I direct the parties to bear their own costs.
(Dictated to the Judgment Writer directly on the computer, transcribed and computerized by her, the transcript corrected, signed and then pronounced by me in the open Court on this the 14th day of February, 2018).
(SHIVASHANKAR B. AMARANNAVAR) Principal City Civil & Sessions Judge, Bangalore.
ANNEXURE
1. List of witnesses examined on behalf of the plaintiff:
PW.1 : Mrs. Ruby Gazder.
PW.2 : Jagan Chandy
PW.3 : K.O. Mammen
PW.4 : Thomas Ollapally
58 O.S.No.4641/2001
2. List of documents exhibited on behalf of the plaintiff:
Ex.P.1 : Will
Ex.P.2 : Xerox Copy of letter
Ex.P.3 : Reply letter to Ex.P.2
Ex.P.4 : Reply letter to Ex.P.2 sent by Mathew Pothan
Ex.P.5 : Xerox copy of letter written to the Director
M/s. Nandi Housing (p) Ltd., by the
defendant Nos1 and 2 dt.3.1.1995.
Ex.P.6 : Xerox copy of letter written to the Director
M/s. Nandi Housing (p) Ltd., by the
defendant Nos1 and 2 dt.9.1.95
Ex.P.7 : Xerox copy of reply letter to Ex.P.6.
Ex.P.8 : Xerox copy of letter written to the Director
M/s. Nandi Housing (p) Ltd., by the
defendant Nos1 and 2 dt.12.1.95
Ex.P.9 : Certified copy of plaint in O.S.No.509/1995.
Ex.P.10 : C/c. of the order on I.A.No.1 in
O.S.4421/1995.
3. List of witnesses examined on behalf of the defendants:
DW.1 : Mathew Chandy Pothan DW.2 : Rev. (Dr.) K.C. Abraham DW.3 : Deepak George Pothan DW.4 : Shobita Punja
4. List of documents exhibited on behalf of the defendants:
Ex.D.1 : Letter.
Ex.D.2 : C/c. of written statement in O.S.509/1995
Ex.D.3 : Letter dt.2.5.1992
Ex.D.4 : Plan
Ex.D.5 : Xerox copy of agreement.
Ex.D.6 : Xerox copy of agreement.
59 O.S.No.4641/2001
Ex.D.7 : C/c. of plaint in O.S.No.509/1995
Ex.D.8 : C/c. of rejoinder in O.S.509/1995. Ex.D.9 : Letter.
Ex.D.10 : Inland letter.
Ex.D.11 : General Power of Attorney.
Ex.D.12 : Addl. Written Stmt. In O.S.509/1995. Ex.D.12(a)(b) Relevant portions in Ex.D.12. Ex.D.13 : C/c.of deposition in O.S.509/1995. Ex.D.13(a) Relevant portion in Ex.D.13.
Ex.D.14: Written Statement of Mrs. Naomi Meadown in O.S. 509/1995.
Ex.D.15 : Xerox copy of a purported Will of around 29.10.1990 Ex.D.16 : C/c. of Court Commissioner's Report in O.S.No.509/1995 on I.A.No.22, consisting of 5 pages.
(SHIVASHANKAR B. AMARANNAVAR)
Principal City Civil & Sessions Judge,
*pst/- Bangalore.