When there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the court and only when such responsibility is discharged, the court would accept the Will as genuine. Even where there are no such pleas but circumstances give rise to doubt, it is on the Propounder to satisfy the conscience of the Court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the Testator, the conditions of the Testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. In such a case, the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the Testator. The aforesaid view is taken by us in consonance with the decision of this Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529 and Pushpavathi vs. Chandraraja Kadamba,1973(3) SCC 291.
Print Page
Madras High Court
A.Dhanalakshmi vs M.Sridharan on 18 April, 2011
(The judgment of the Court was delivered by V.PERIYA KARUPPIAH.,J.) This appeal was filed by the defendants/respondents 4 to 6 in O.P.No.587/2006 against the judgment and decree passed in T.O.S.No.47 of 2006 dated 28.2.2008, granting letters of administration in favour of plaintiffs.
2. Brief facts of the case are as follows:
The case of the plaintiffs is that they are the sons of one Late M.S.Manivana Naicker @ M.S.Manivanan. The said Manivanan executed a Will dated 14.09.1992 which was subsequently registered. In the said Will, the plaintiffs were bequeathed with life estate in the suit property and absolute right was given to the children of the plaintiffs. The first and the second plaintiffs being the beneficiaries of the Will dated 14.09.1992 have come forward with a suit for grant of letters of administration of the Will executed by late M.S.Manivana Naicker @ M.S.Manivanan. The deceased testator did not execute any other Will and did not own any other property, except the property mentioned in the schedule to the suit. Apart from the plaintiffs, the testator had three daughters viz., Vijaya, Yasodha and Girija. The said Vijaya is the first respondent in O.P.No.587/2006. The first defendant Dhanalakshmi is the daughter of Yasodha. The second and third defendants are the children of Girija. The said Yasodha and Girija are no more. According to the plaintiffs, the propounder of the Will has directed the plaintiffs to pay Rs.15,000/- each and out of the total sum of Rs.30,000/-, Vijaya, Yasoda and Girija are entitled to Rs.10,000/- each. Hence, the plaintiffs prayed for grant of letters of administration of the Will dated 14.09.1992
3. Written statement was filed by the second defendant/5th respondent in O.P.No.587 of 2006 and the defendants 1 and 3/respondents 4 and 6 in O.P.No.587 of 2006 have adopted the written statement filed by the second defendant wherein it is stated as follows:
The testator is the grand father of defendants 1 to 3 and the father of the plaintiffs. Yasodha is one of the daughters of Manivannan and the mother of the first defendant. The second and third defendants are the children of Vijaya, who is one of the daughters of Manivannan. According to the defendants, few months before the death of the testator, the testator was suffering from throat cancer and he was bedridden and he was taken care of by his daughters only and not by the plaintiffs. The medical and other expenses of the testator was spent from the pension amount received by the testator who was a railway employee and by the amount given by his sons-in-law. According to the defendants, the Will dated 14.9.1992 was not true and genuine document but a fabricated one. The Will dated 14.09.1992 was not executed by the testator in a sound and disposing state of mind and it was attested by the witnesses who were closely associated with the plaintiffs and hence, prayed for dismissal of the suit.
4. The respondents 1 to 3 in O.P.No.587 of 2006 have no objection for grant of letters of administration in favour of the plaintiffs.
5. In the said suit, the learned single Judge framed the following issues:
i) Whether the Will dated 14.09.1992 said to have been executed by Manivana Naicker is valid and genuine?
ii) Whether the Will dated 14.09.1992 has been executed by M.S.Manivannan Naicker in a sound disposing state of mind?
6. On considering the oral and documentary evidence and on hearing the submissions made on either side, the learned single Judge found that the Will dated 14.09.1992 was executed by Manivanna Naicker in a sound and disposing state of mind and it is valid and genuine. The learned single Judge decreed the suit and ordered letters of administration in favour of the plaintiffs. Hence, this appeal at the instance of defendants/respondents 4 to 6 in O.P.No.587/2006 against the judgment and decree dated 28.02.2008 passed by the learned single Judge.
7. Heard, Ms.P.T.Asha appearing for M/s.Sarvabhauman Associates, learned counsel for the appellants and Mr.P.K.Gopalraj, learned counsel appearing for the respondents.
8. Learned counsel for the appellants would submit in her arguments that the relationship in between the parties is admitted and the testator, Manivannan @ Manivanna Naicker was the grand father of the appellants and the mothers of the appellants and the first respondent in the O.P. were the daughters of Manivannan @ Manivanna Naicker and the respondents are his sons. She would further submit that all the five children of Manivannan @ Manivanna Naicker were entitled to succeed the estate of Manivana Naicker but in order to deprive the rights of the appellants, the respondents have created a fabricated Will as if the said Manivanna Naicker executed a Will in respect of his properties on 14.9.1992. She would further submit that the alleged Will of Manivanna Naicker was not proved by the propounders, namely, the respondents, in the manner known to law. She would further submit in her arguments that the said Manivana Naicker was admittedly unwell due to throat cancer, one year prior to his death and it is for the propounder to prove that he was in a sound and disposing state of mind and was not able to speak what he thought and the propounders did not discharge the burden of proving the said circumstances and that would give raise to suspicious circumstance. She would further submit in her arguments that the propounders examined P.W.2 as one of the attesting witnesses and his evidence would not show that the other attesting witness had also joined in the execution of proving the attestation in accordance with law. She would also submit that the said fact was not appreciated by the learned single Judge properly and the evidence of P.W.2 as an attesting witness is not sufficient to comply with the requirements of Section 63(1) of the Indian Succession Act. She would also submit that the proof required under section 68 of the Indian Evidence Act even though was complied by examining one of the attesting witnesses as P.W.2, it is not sufficient for proving the requirement under section 63(c) of the Indian Succession Act.
9. Learned counsel for the appellants would draw the attention of the Court to the judgment reported in 2008(6) CTC 92 (K.Laxmanan vs. Thekkayil Padmini and others) in support of her arguments. She would further submit that the evidence of P.W.2 was solely relied upon by the Propounder but he had spoken about the date of registration as 29.9.1992 which is not correct. She would further submit that the said attesting witness and other persons are none other than the interest witnesses of the propounder and therefore, the evidence of P.W.2 cannot be relied upon for the purpose of approving the proof of the Will under Section 68 of the Indian Evidence Act. She would further draw the attention of the Court to the judgment of Kerala High Court reported in 2000 (3) KLJ 1010 (Devassykutty vs Visalakshy Amma) for the principle that section 63 of the Indian Succession Act should have been complied with for arriving to a conclusion that a Will is a genuine and valid document. She would further argue that the propounder is under the burden to prove that the testator has signed the Will and he had put his signature out of his own free will in a sound and disposing state of mind and understood the nature and effect thereof and in the absence of such proof, the Will cannot be taken as proved by the propounder. She would further submit that the exclusion of the legal heirs should have been promptly spoken by the witnesses examined by the propounder but it was not seen from the evidence of the propounder.
10. Learned counsel for the appellants would also bring it to the notice of this Court a judgment of Honourable Apex Court reported in AIR 2007 SC 2025 (Adivekka and Others vs. Hanamavva Kom Venkatesh (deceased by Lrs.) and another) in support of her arguments. She would further submit that there was no proof that the Will was executed by the testator on 14.9.1992 in the presence of two attesting witnesses and the said Will was registered thereafter on 19.10.1992. When the propounder has failed to prove such aspect, the suspicious circumstance will overcome and the non dispelling the suspicious circumstance also would make the evidence incomplete from proving the alleged Will. She would also submit that the learned single Judge did not take note of the evidence of P.W.2 that the testator executed the Will before the Sub-Registrar but had considered the evidence of P.W.2 as gospel truth. She would further submit that the learned single Judge did not exercise much caution before coming to the conclusion of upholding the Will without proper evidence on the side of the propounder. She would therefore, request the Court that the Will said to have been executed by Manivanna Naicker should not have been granted with Letters of Administration and the order of learned Single Judge, granting Letters of Administration may be set aside and the appeal be allowed.
11. Learned counsel for the respondents would submit in his arguments that the Will executed by Manivana Naicker is a registered one and the defendants have pleaded forgery and fabrication of the said Will but subsequent to the filing of written statement, the plea of forgery was given up and reliance was placed only upon fabrication of the said Will. He would further submit that the evidence of P.W.2 would be sufficient to prove the execution of the Will by the testator Manivanna Naicker and he has spoken about both attestation as well as the registration in his proof affidavit as well as in the chief examination and the same was not disproved by the appellants. He would also submit that the prime contention of the defendants would be that the said Manivanna Naicker was not in a sound and disposing state of mind at the time of execution of the said Will since he was affected by throat cancer one year prior to his date of death. It is the claim of the defendants that they have looked after Manivanna Naicker and if to be so, they ought to have maintained the medical records of Manivanna Naicker to show that the Manivanna Naicker was not in speakable condition and in the absence of such proof, the evidence of P.W.2 that the said Manivanna Naicker himself had approached P.W.2 at his house for inviting him for attesting the Will, have been proved and Manivanna Naicker was at that time maintaining, sound and disposing state of mind.
12. Learned counsel for the respondents would further submit in his argument that the evidence of P.W.2 as spoken in the proof affidavit filed by him was not shown as wrong even though it has been recorded after 16 years. He would further submit that P.W.2 is aged senior citizen and he could recollect his memories what had happened in the year 1992 and depose in the year 2008 and therefore, there is every chance of small discrepancy in referring to the date of registration as 29.9.1992 instead of 19.10.1992. In such circumstances, the evidence of P.W.2 ought to have been taken as a natural evidence and he cannot be termed as untrustworthy witness. He would further submit that the proof required under section 68 of Indian Evidence Act coupled with section 63(c) of Indian Succession Act has been produced by virtue of production of Ex.P2, the original Will and through the evidence of P.W.2 . He would also submit that the evidence of P.W.2 would be sufficient for proving the attestation, execution and genuineness of the Will which was executed by the said Manivana Naicker in a sound and disposing state of mind. He would also submit that the proof of the Will had dispelled the suspicious circumstance said to have been evolved on exclusion of other legal heirs of the testator Manivana Naicker. He would further submit that even such suspicious circumstance said to have been evolved due to the exclusion of other legal heirs, it has been explained in the Will itself that the beneficiaries (respondents herein) are directed to contribute each Rs.15,000/- and the total sum of Rs.30,000/- arrived from such collection should be distributed to three daughters of the testator namely Vijaya (first daughter), Yasodha (second daughter who is no more and mother of the respondents 2 to 4 in the O.P.) and the third daughter Girija, (mother of respondents 5 and 6/defendants 2 and 3). Therefore, he would submit that the other heirs were not left without any benefits and therefore, it cannot be said that the other heirs were exclusively excluded by the testator in the Will.
13. Learned counsel for the respondents would cite the judgment of the Honourable Apex Court reported in (2005)8 SCC 67 (Pentakota Satyanarayana v. Pentakota Seetharatnam) for the principle that the circumstances of depriving the natural heirs should not raise any suspicion because the whole idea behind the execution of the Will is to interfere in the normal line of succession. He would further submit that even otherwise, there is no absolute exclusion of other heirs in the Will and they were also granted certain benefits. He would once again draw the attestation of the Court to the judgment of the Honourable Apex Court reported in AIR 2003 SC 761 (Janki Narayan bhoir vs. NarayanNamdeo Kadam). He would further submit in his arguments that the learned single Judge has come to a correct conclusion in respect of the facts after going through the evidence adduced on either side and in such circumstances, the judgment of the learned single Judge may not be interfered and the same may be affirmed.
14. We have given anxious thoughts to the arguments advanced on either side. On a careful perusal of the pleadings, evidence and the judgment of the learned single Judge and the arguments advanced on either side, we could see the following points emerged for consideration in this appeal.
i) Whether the Will dated 14.9.1992 was executed by Late. Manivannan @ Manivanna Naicker in a sound and disposing state of mind in the presence of two attesting witnesses and is it a true and genuine document?
ii) Whether the said Will is vitiated by suspicious circumstance arisen in the execution of the said Will?
iii) Whether the finding of the learned single Judge is liable to be interfered and the appeal be allowed?
15. We feel it better that the arguments advanced by both the learned counsel be applied on point wise.
Point Nos.1 and 2:
(a) The appellants are the defendants 1 to 3 and the respondents 4 to 6 in the testamentary O.P. At the time of filing the O.P. for grant of Letters of Administration by the respondents/petitioners, the respondents 1 to 3 gave their consent and filed their consent affidavits for grant of Letters of Administration as asked for by the respondents/petitioners. However, the respondents 4 to 6 filed caveat and therefore, it was transformed into T.O.S. and a full-fledged trial was ordered. Therefore, the respondents 4 to 6 in the O.P. were ranked as defendants 1 to 3 in the suit and they conducted the trial before the learned single Judge. The case of the appellants/defendants would be that the Will said to have been executed by Manivannan @ Manivanna Naicker is not a true, genuine documents executed by the said testator in a sound and disposing state of mind and it also a created and fabricated document in order to exclude the defendants from inheriting the property. The appellants/defendants had also raised a plea that the Will dated 14.9.1992 could not have been executed in the month of September 1992 as the testator who was the grand father of the defendants, was in a very critical condition and therefore, the signature in the Will could not have been put by the testator in a sound and disposing state of mind. It is also argued elaborately by the learned counsel for the appellants/defendants that the mothers of defendants 1 to 3 viz., Yasodha and Vijaya who are admittedly the daughters of the said Manivanna Naicker were excluded from inheriting the said property and it had created suspicious circumstance.
(b) To controvert the said pleadings of the defendants, the plaintiff had examined himself as P.W.1 and examined the attesting witness, P.W.2.
(c) According to the submission of the learned counsel for the appellants/defendants, the evidence of P.W.2 would not be sufficient to prove the Will said to have been executed by the testator Manivannan @ Manivanna Niacker, produced as Ex.P2. For the said submission, the appellants relied upon the judgment of the Honourable Apex Court reported in 2008(6) CTC 92(K.Laxmanan vs. Thekkayil Padmini and others) and the relevant paragraphs would run as follows:
"20. Strong reliance was placed on this provision also by the learned counsel appearing for the parties. A bare reading of the aforesaid provision will make it crystal clear that so far as a Deed of Will is concerned,, the proposition in law is no longer in doubt for the onus of proving the Will is on the Propounder. The Propounder has to prove the legality of the execution and genuineness of the said Will by proving the absence of suspicious circumstances surrounding the said Will and also by proving the testamentary capacity and the signature of the Testator. Once the same is proved, it could be said that the propounder has discharged the onus.
21. When there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the court and only when such responsibility is discharged, the court would accept the Will as genuine. Even where there are no such pleas but circumstances give rise to doubt, it is on the Propounder to satisfy the conscience of the Court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the Testator, the conditions of the Testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. In such a case, the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the Testator. The aforesaid view is taken by us in consonance with the decision of this Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529 and Pushpavathi vs. Chandraraja Kadamba,1973(3) SCC 291.
(d) It is also further argued that the evidence of P.W.2 does not speak about the attestation of yet another witness which is an important requirement under section 63(c)of the Indian Succession Act. For which, our attention was drawn to the evidence of P.W.2. P.W.2 had admitted that he did not see the other attesting witness prior to his meeting at the Sub-Registrar's office. No doubt it is true that he had stated in the cross examination but it was not suggested on the side of the defence that the said P.W.2 had deposed falsely that he had signed along with the other attesting witness at the time of execution of the Will by the said Manivanna Naicker as spoken to in his chief examination. In the proof affidavit filed by him, he has categorically spoken as follows:
"4. I further state that the name and signature at the foot of the testamentary paper is in the proper handwriting of the said deceased M.S.Manivanna Naicker alias M.S.Manivannan and the names and signatures also subscribed and written at the foot of the said Testamentary paper is of the parties attesting execution of the same and are in the proper and respective handwriting of the said S.Subramani and myself."
(e) Per contra, it has been suggested to P.W.2 that the other attesting witnesses did not attest the Will, which was denied by P.W.2. Such a suggestion is not sufficient when P.W.2 has spoken clearly in his chief examination that he and other attesting witness have attested the execution of the Will by Manivanna Naicker and subscribed their signatures in his presence. The evidence in cross examination that he did not see the other attesting witness prior to registration of the Will should have been deposed by P.W.2 since he happened to attest the Will in the year 1992 and deposed after 16 years (i.e.,) in the year 2008 and he was also sufficiently aged at that time, crossing 65 years. Therefore, we could safely conclude that the evidence adduced by P.W.2, who spoke about the attestation and also registration, is acceptable. The same reason is applicable for the mistaken reference as to the date of registration as 29.9.1992 instead of 19.10.1992.
(f) No doubt it is true that there was exclusion of the daughters of the testator in the Will by the testator. The defendants are the sons and daughters of the second daughter, Yasodha and the third daughter, Girija. Similarly, the respondents 1 to 3 who gave consent are the first daughter, Vijaya and the children of the second daughter Yasodha, respectively. The respondents 1 to 3 have given consent and their consent affidavits were marked as Exs.P3 to P5. According to the judgment of the Honourable Apex Court reported in 2005(8) SCC 67.(Pentakota Satyanarayana v. Pentakota Seetharatnam). It has been categorically laid down as follows:
"26. Mr.Narasimha, learned counsel for the respondents, submitted that the natural heirs were excluded and the legally wedded wife was given the lesser share and, therefore, it has to be held to be a suspicious circumstance. We are unable to countenance the said submission. The circumstances of depriving the natural heirs should not raise any suspicion because the whole idea behind the execution of the Will is to interfere in the normal line of succession and so natural heirs would be debarred in every case of the Will. It may be that in some cases they are fully debarred and some cases partly. This is the view taken by this court in Uma Devi Nambiar v. T.C.Sidhan."
(g) When we apply the principle laid down by the Honourable Apex Court to the present case, we could see that the daughters of the testator namely Vijaya, first respondent and the other two daughters Yasodha and Girija were given Rs.10,000 each from and out of the amount of Rs.15,000/- to be contributed by each of the respondents in the year 1992 and therefore, the exclusion of the daughters of the testator cannot be held as one of the suspicious circumstance. Similarly, the plea of defendants that the testator was not in sound and disposing state of mind due to his throat cancer has not been proved by the defendants, in order to disprove the evidence given by P.W.2 that the testator was in a sound and disposing state of mind at the time of execution of the Will and P.W.2 himself had attested the Will owing to the request made by the testator at the house of P.W.2. In addition to the said fact, P.W.2 would speak to the effect that the testator himself had come to the Sub-Registrar Office, put his signature and he and other witness had also signed as witnesses in the Will in the Sub-Registrar Office. These circumstances would go to show that the evidence of P.W.2 would be sufficient to prove that the testator was in a sound and disposing state of mind. Therefore, we could see that there is no necessity of clearing any cloud cast upon the genuineness of the Will as it has been very much clear from the evidence of P.W.2 that there was no such circumstance to raise such suspicion. The facts discussed in the judgment of the Kerala High Court are not applicable to the present case and the principle laid down therein is also not applicable to the present case. The learned single Judge has also elaborately discussed the facts and circumstances of the case and had come to the conclusion of upholding the validity and genuineness of the Will. The said finding reached by the learned single Judge need not be disturbed or interfered since there is no serious irregularity in reaching such a finding.
16. Therefore, we are of the considered opinion that the propounders have discharged their burden of proving the Will as valid and genuine by proving that the said Will was executed by the Testator Manivannan @ Manivanna Naicker in a sound and disposing state of mind in the presence of two attesting witnesses. Accordingly, we confirm the findings of the learned single Judge and find the points in favour of the respondents/plaintiffs .
17. Point No.3:
We have considered the evidence of P.Ws. 1 and 2 and have come to the conclusion that the finding of the learned single Judge that the Will dated 14.09.1992 executed by Manivannan @ Manivanna Naicker was true and genuine document executed by him in a sound and disposing state of mind in the presence of two attesting witnesses and therefore, there is no reason to interfere with the judgment and decree passed by the learned single Judge in directing, grant of Letters of Administration annexing the aforesaid original Will. Therefore, the judgment and decree passed by the learned single Judge are confirmed and the appeal preferred by the appellants/defendants is liable to be dismissed.
18. In the result, the judgment and decree of the learned single Judge are confirmed and the Appeal is dismissed. In view of the close relationship in between the parties, there is no order as to costs.
vsi
No comments:
Post a Comment