Lodd Surendardas v. Lodd Narendradas & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 16.06.2009Coram :THE HONOURABLE MR. JUSTICE K.RAVIRAJA PANDIANandTHE HONOURABLE MR. JUSTICE P.P.S.JANARTHANA RAJAOriginal Side Appeal No.182 of 2003Dr.Lodd SurendardasAppellantvs.1.Lodd Narendradas2.Lodd JayendradasRespondentsAppeal filed under Clause 15 of the Letters Patent andOrder 36 Rule 1 of the Original side Rules against the judgment anddecree dated 25.07.2002 made in TOS No.25 of 1987.For appellant : Mr.N.VaradarajanFor respondents: Mr.A.SeshanJUDGMENTK.RAVIRAJA PANDIAN, J.The correctness of the judgment and decree of the learnedsingle Judge granting probate of the last Will and testament ofLodd Balamukundas to the respondents herein, is canvassed in thisappeal. 2. The respondents herein along with their mother YashodaBai filed a probate application before this Court in respect of thelast Will and testament of Lodd Balamukundas for grant of probate.As the appellant herein filed caveat. the probate application hasbeen converted into TOS and numbered as 25 of 1997. It is the caseof the respondents/plaintiffs that the husband of the firstplaintiff and the father of the second and third plaintiffs oneLodd Balamukundas executed his last Will on 02.03.1975 at Madras.One of the sons of the testator Dr.Lodd Surendradas has contestedthe suit by contending that the said Will was not true, valid andbinding on him; that the same was not executed by his father in asound and disposing state of mind; that there was no validexecution and attestation as required by law and there are severalsuspicious circumstances attending on the execution of the Will.The learned single Judge, after taking into consideration the https://hcservices.ecourts.gov.in/hcservices/ evidence adduced on the side of the plaintiffs, viz., P.Ws 1 to 3and the documents Exs.P.1 to P.5 and taking into consideration theholography nature of the Will, has granted the relief of probate.This appeal is at the instance of the defendant challenging thegrant of probate. 3. The appellant/defendant has raised the very samecontention before this Court to the effect that the father was notin a sound and disposing state of mind at the time of execution ofthe Will; that there was no valid execution and attestation of theWill as required by law; and that there are several suspiciouscircumstances surrounding the Will. 4. On the other hand, learned counsel appearing for therespondents/plaintiffs argued to sustain the order of the learnedsingle Judge. 5. Heard the learned counsel on either side and perused thematerials available on record.6. In the case of like nature, the line of judgments say inone voice that the onus of proving the Will is on the propounderand in the absence of suspicious circumstances surrounding theexecution of the Will, proof of testamentary capacity and thesignature of the testator as required by law is sufficient todischarge the onus. Where however there are suspiciouscircumstances, the onus is on the propounder to explain them to thesatisfaction of the court for the court to accept the Will asgenuine. Even where circumstances give rise to doubts, it is forthe propounder to satisfy the conscience of the court. Thesuspicious circumstances may be as to the genuineness of thesignatures of the testator, the condition of the testator’s mind,the dispositions made in the Will being unnatural, improbable orunfair in the light of relevant circumstances, or there might beother indications in the Will to show that the testator’s mind wasnot free. In such a case the court would naturally expect that alllegitimate suspicions should be completely removed before thedocument is accepted as the last Will of the testator. If thepropounder himself takes a prominent part in the execution of theWill which confers a substantial benefit on him, that is also acircumstance to be taken into account, and the propounder isrequired to remove the doubts by clear and satisfactory evidence.(See Indu Bala Bose v. Manindra Chandra Bose, (1982) 1 SCC 20). 7. The legal requirement in terms of sections 63 and 68 ofthe Indian Succession Act is now well settled. A Will like anyother document is to be proved in terms of the provisions of theIndian Succession Act and Indian Evidence Act. The onus of provingis on the propounder. The testamentary capacity of the propoundermust be established. The execution of the Will by the testator hasto be proved. Atleast, one attesting witness is required to beexamined for the purpose of proving the execution of the Will. https://hcservices.ecourts.gov.in/hcservices/ However, it is also required to be shown that the Will has beensigned by the testator with his free Will and that at the relevanttime he was in the sound disposing state of mind and understood thenature and effect of disposition. It is also required to beestablished that he has signed the Will in the presence of twoattesting witnesses, who attested his signature in his presence orin the presence of each other. Only when there exist suspiciouscircumstances, the onus would be on the propounder to explain tothe satisfaction of the Court before it could be accepted asgenuine. (See Savithri v. Karthyayani Amma, (2007) 11 SCC 621).8. By having this settled principle in mind, let usconsider the present case with reference to the materials madeavailable. The Will was dated 02.03.1975. The testator died on19.02.1981. The Will has been marked as Ex.P.1. It is anunregistered one. Plaintiffs 2 and 3 have examined themselves asP.Ws. 1 and 2. One of the attesting witnesses is examined as P.W.3.The plaintiffs/respondents have also filed an affidavit before thisCourt and taken on record stating that all his sisters haveconsented for granting probate in favour of the plaintiffs. BothP.Ws.1 and 2 deposed that their father Lodd Balamukundas wasactive and not suffering from any illness and was in a sound anddisposing state of mind till his lifetime. P.W.1 has categoricallydeposed that his father was attending to the maintenance of hishouse and all other works till his lifetime; that he used to visithis daughters residing in North India for quite number ofoccasions; and that he used to go alone by train. Further it is onevidence of P.W.1 that the testator used to go to pilgrimage andwas managing all the family properties. Apart from that, he usedto attend to the cases pending before the City Civil Court in O.S.Nos.4346 of 1974 and 5399 of 1974 and deposed in those cases, whichwere disposed on 05.01.1976. The above evidence of P.W.1 has notbeen disputed by the appellant/defendant by adducing any contraevidence. As a matter of fact, on the side of theappellant/defendant none was examined and no document was marked. 9. From the above available evidence, the Court could cometo the one and only conclusion that at the time of execution of theWill on 02.03.1975 the testator was well in a sound and disposingstate of mind. 10. One of the attesting witness Mr.M.K.Hidayathullah, whois a practising advocate of this Court from the year 1972 wasexamined as P.W.3. He has deposed in his evidence that he wasclosely associated with one Mr.A.Venkatesan, who is also anadvocate right from the year of service in the year 1972. Thetestator Lodd Balamukundas was a standing client of Mr.Venkatesan,who brought Ex.P.1 Will to the residence of Mr.Venkatesan andinformed him that he has already prepared a Will and consultedMr.Venkatesan as to whether the Will was in order and P.W.3 M.K.Hidayathullah gave his consent to attest the Will. P.W.3 alsodeposed that the testator signed in Ex.P.1 Will in the presence of https://hcservices.ecourts.gov.in/hcservices/ himself, Mr.Venkatesan and other attesting witnesses Dayal Prasadand P.W.3 signed as the attesting witness which was followed by thesecond attesting witness Dayal Prasad. At the time of execution ofthe Will by the testator, both the attesting witnesses werepresent. The affidavit sworn by P.W.3 narrating all the necessaryfacts as to the execution and attestation of the Will has beenfiled by the respondent. From the evidence of P.W.3, it is evidentthat at the time of execution of the Will, the testator was in agood physical and mental condition and execution and attestationhave also been spoken to clearly. Here again, thedefendant/appellant thoroughly failed to show any reason orcircumstance to disbelieve the evidence of P.W.3. Hence, thesecond contention that the Will is not properly executed and notattested falls to ground.11. The Will Ex.P.1 is in the handwriting of the testatorof Lodd Balamukundas. One of the attesting witness, a practisinglawyer of this Court P.W.3 has categorically deposed that Ex.P.1the testament was executed by the testator in his presence. It ispertinent to state here that neither the handwriting nor thesignature of the testator is disputed by the defendant. It issettled principle of law that in the case of holographic Will,presumption is all the more greater in favour of the genuineness ofthe Will. Useful reference can be had to the decision of the apexCourt in thecase of Joyce Primrose Prestor v. Vera Narue Vas,(1996) 9 SCC 324. In the present case, the whole of the Will is inthe handwriting of the testator. The handwriting of the testatoris clear and firm, though there are certain over-writings found inalmost all the lines, which cannot be attributed to any otherpresumption, but to the age of the testator and definitely notagainst the genuineness of the Will. 12. The recital in the Will would clearly indicate that itwas the outcome of free will and volition of the testator. In thetestament the testator has given life estate to his wife YasodhaBai and thereafter the property would go to all his five daughtersafter retaining some properties for the charities to be done in hisname. In addition to that, the testament carries a recital to theeffect that the testator was in a proper health and proper mind andunderstanding and executed the testament. 13. Incidentally it should be stated that throughout theproceedings, it is not the case of the appellant/defendant that theplaintiffs had any role to play or they had participated in thepreparation of Ex.P.1 Will. It is not even suggested that P.Ws.1and 2 were present at the time of the execution or attestation ofthe document. As already stated, the testament under challenge wasexecuted by the testator on 02.03.1975 and that he died on19.02.1981 as evidenced by Ex.P.2. From that it is clear thatafter the execution of the document the testator lived for sixyears during which period he had attended to litigation andparticipated in the proceedings by giving evidence before the Court https://hcservices.ecourts.gov.in/hcservices/ of law. It is also not the case of the appellant/defendant thatthe Will is the outcome of any invalidating factor like undueinfluence, coercion or misrepresentation, etc. If that be thecase, the testator could have revoked or cancelled the Will as hehas lived for six years after the execution of the Will with sounddisposing state of mind.14. Above all, as stated already, except the mere avermentraised in the written statement the appellant/defendant has notadduced any evidence either oral or documentary. 15. In the above stated circumstances, we are of the viewthat the contentions of the appellant/defendant that the testatorwas not in sound and disposing state of mind; that there was novalid execution and attestation of the Will and that there areseveral suspicious circumstances attached to the execution of theWill are raised only for the purpose of the case. We do not findany merit in the appeal to interfere with the judgment of thelearned single Judge. The appeal deserves to be dismissed and itis accordingly dismissed. However, there Will be no order as tocosts.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarmfCopy toThe Sub Assistant Registrar,Original Side,High Court, Madras.1 cc To Mr.A.Seshan, Advocate, SR.23379.OSA No.182 of 2003 CK(CO)RVL 25.06.2009