Antony Julith v. S. Santiago2. S. Thomas

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23-07-2007CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MRS. JUSTICE R. BANUMATHIO.S.A.NO.246 OF 2002 1. Mrs. Josephine Jerome W/o. late S. Eric Jerome2. Emanuvel Sandanaraj S/o. late Eric Jerome 3. Antony Julith D/o. late Eric Jerome4. Moses S/o. late Eric Jerome3rd and 4th Appellants declaredas majors and 1st Appellantdischarged from guardianshipvide order dated 25.2.02 inCMP.No.20138/2001.. AppellantsVs.1. S. Santiago2. S. Thomas.. RespondentsAppeal filed under Clause 36 Rule 1 of Original Side Rulesagainst the judgment made in T.O.S.No.27 of 1997 dated 20.12.2000 bythe learned single Judge. For Appellants: Mr.A.R. NixonFor Respondents: Mr.R. Rajarajan for M/s.G. Rajan & Neelakantan- - - https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N TP.K. MISRA, JThis Appeal is directed against the Judgment in T.O.S.No. 27of 1997 dated 20.12.2000. Aggrieved over the grant of probate ofthe Will executed by the testatrix, viz., late Mary Santiago, theDefendants have preferred this Appeal.2. The parties are related as under:Mary Santiago (died on 25.10.1994)S.Santiago (P.1)Late S.Eric Jerome Josephine Nirmala Augustin S.Thomas(died on 29.6.95) (P.2)Josephine Jerome(D.1) Emanuvel Antony Julith Moses Sandanaraj (D.3) (D.4) (D.2) The case of the Plaintiffs' is that Mary Santiago left behind aWill dated 08.07.1994, where under, she had made a bequest grantinglife estate to her husband-First Plaintiff and absolute estate tothe Second Plaintiff, who is the ultimate beneficiary. After thedeath of Mary Santiago, the Plaintiffs had filed O.P.No. 748/95 forissuance of probate of the Will. The Appellants/Defendants filedcaveat and therefore, O.P.No. 748/95 was converted to T.O.S.No.27/1997 alleging that disposition made under the Will was unnaturaldisposition. The Plaintiffs sought probate of the Will. TheDefendants contested the Suit alleging that the Will is not a true, valid and genuine one and that the Plaintiffs have committedforgery and the purported Will is not a natural Will. TheDefendants inter alia contended that Mary Santiago had already leftbehind a registered Will dated 23.3.1990 and the testatrix neverintended to cancel the Will. It was further alleged that the Willis surrounded by several suspicious circumstances and therefore, theprobate should not be granted.3. On the above pleadings, the following four issues wereframed:-"1. Whether the Will executed by Mrs. Mary Santiago on 8.7.1994is true and genuine? https://hcservices.ecourts.gov.in/hcservices/

#2. Whether the Will was duly executed by Mary Santiago andvalidly attested by witnesses?3. Whether the Will is a rank forgery created to suit theconvenience and benefit of the plaintiff ?4. To what relief the parties are entitled?4. The attesters to the Will were examined as P.Ws. 1 and2 on the side of the Plaintiffs and exhibits P-1 to P-3 were marked.On the side of the Defendants, the First Defendant was examined asR.W.1 and exhibits R.1 and R-2 were marked.5. Discussing all the issues together, on the evidence ofattesters (P.Ws. 1 and 2), the learned Single Judge held that at thetime of execution of the Will the testatrix was in a sound disposingstate of mind. Referring to various points the learned Single Judgeconcluded that the alleged suspicious circumstances are dispelled bythe Plaintiffs. The learned Single Judge took the view that merepresence of the propounder would not show that they have actuallyparticipated. It was also held that another son Jerome and daughterwere sufficiently provided for and there is nothing unnatural inexcluding them by the testatrix.6. Assailing the findings and conclusion of the learnedSingle Judge, the learned counsel for the Appellants inter aliaraised the following contentions. (1) There is no specific evidence, far less proof, for dueexecution of the Will by the testatrix and the evidence on recordmerely prove the "attestation part".(2) There are many suspicious circumstances appearing whichhave not been clear and, on the other hand, those suspiciouscircumstances have been compounded further by the fact that thePropounder has not come forward to give any explanation.7. So far as the first contention is concerned, it issubmitted by the learned counsel for the appellants that theevidence of two attesting witnesses only indicates that they haveseen the testatrix putting her signature on a document which wasalready prepared, but there is no whisper anywhere that the Will hadbeen prepared on the basis of the instructions of the testatrix orthe testatrix had put her signature after going through the contentsor that the contents had been read over and explained to thetestatrix and, therefore, it cannot be said that due execution ofthe Will has been proved.8. Learned counsel appearing for the respondents hassubmitted that the mode of proof of Will is not different from anyother document save and except the requirement under Section 68 of https://hcservices.ecourts.gov.in/hcservices/ the Evidence Act regarding proof of attestation by examining one ofthe attesting witnesses, if alive. It is submitted by him thatrigor of Section 68 has been complied with in this case and thesignature of the testatrix having been proved through the attestingwitnesses and the attestation having been proved, nothing furtherwas required to be proved and it is for the caveators raisingobjection to specifically plead and prove the reasons for which theWill should be discarded.9. In A.I.R. 1959 SC 443 (H. VENKATACHALA IYENGAR v. B.N.THIMMAJAMMA AND OTHERS), it was observed: "19. However, there is one important feature whichdistinguishes will from other documents. Unlike otherdocuments 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 saywhether it is his will or not; and this aspect naturallyintroduces an element of solemnity in the decision of thequestion as to whether the document propounded is provedto be the last will and testament of the departedtestator. Even so, in dealing with the proof of wills theCourt will start on the same enquiry as in the case of theproof of documents. The propounder would be called upon toshow by satisfactory evidence that the will was signed bythe testator, that the testator at the relevant time wasin a sound and disposing state of mind, that he understoodthe nature and effect of the dispositions and put hissignature to the document of his own free will. Ordinarilywhen the evidence adduced in support of the will isdisinterested, satisfactory and sufficient to prove thesound and disposing state of the testator's mind and hissignature as required by law, Courts would be justified inmaking a finding in favour of the propounder. In otherwords the onus on the propounder can be taken to bedischarged on proof of the essential facts justindicated."(Emphasis added)10. In (1974) 2 SCC 600 (SURENDRA PAL & OTHERS v. DR(Mrs.) SARASWATI ARORA & ANOTHER), it was observed :-"7. The propounder has to show that the will wassigned by the testator; that he was at the relevant timein a sound disposing state of mind, that he understood thenature and effect of the dispositions, that he put hissignature to the testament of his own free will and thathe has signed it in the presence of the two witnesses whoattested it in his presence and in the presence of eachother. Once these elements are established, the onus whichrests on the propounder is discharged. But there may becases in which the execution of the will itself is https://hcservices.ecourts.gov.in/hcservices/ surrounded by suspicious circumstances, such as, where thesignature is doubtful, the testator is of feeble mind oris overawed by powerful minds interested in getting hisproperty, or where in the light of the relevantcircumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasonsfor doubting that the dispositions of the will are not theresult of the testator's free will and mind. In all suchcases where there may be legitimate suspiciouscircumstances those must be reviewed and satisfactorilyexplained before the will is accepted. Again in caseswhere the propounder has himself taken a prominent part inthe execution of the will which confers on him substantialbenefit that is itself one of the suspicious circumstanceswhich he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the Courtthat has to be satisfied, as such the nature and qualityof proof must be commensurate with the need to satisfythat conscience and remove any suspicion which isreasonable man may, in the relevant circumstances of thecase, entertain."(Emphasis added)11. In (2005) 1 SCC 40 (DAULAT RAM & OTHERS v. SODHA &OTHERS), it was observed :-"10. Will being a document has to be proved byprimary evidence except where the Court permits a documentto be proved by leading secondary evidence. Since it isrequired to be attested, as provided in Section 68 of theIndian Evidence Act, 1872, it cannot be used as evidenceuntil one of the attesting witnesses at least has beencalled for the purpose of proving its execution, if therebe an attesting witness alive, and subject to the processof the Court and capable of giving evidence. In addition, it has to satisfy the requirements of Section 63 of theIndian Succession Act, 1925. In order to assess as towhether the Will has been validly executed and is agenuine document, the propounder has to show that the Willwas signed by the testator and that he had put hissignatures to the testament of his own free will; that hewas at the relevant time in a sound disposing state ofmind and understood the nature and effect of thedispositions and that the testator had signed it in thepresence of two witnesses who attested it in his presenceand in the presence of each other. Once these elements areestablished, the onus which rests on the propounder isdischarged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion byleading appropriate evidence. The burden to prove that theWill was forged or that it was obtained under undue https://hcservices.ecourts.gov.in/hcservices/ influence or coercion or by playing a fraud is on theperson who alleges it to be so."12. Similar view was also expressed in (2005) 8 SCC 67(PENTAKOTA SATYANARAYANA & OTHERS v. PENTAKOTA SEETHARATNAM &OTHERS) and (2005) 8 SCC 784 (SRIDEVI & OTHERS v. JAYARAJA SHETTY &OTHERS).All these decisions were followed in 2007-2-L.W. 870 (B.VENKATAMUNI v. C.J. AYODHYA RAM SINGH AND OTHERS).13. Similarly in 2007(2) CTC 172 (NIRANJAN UMESCHANDRAJOSHI v. MRIDULA JYOTI RAO AND OTHERS), it was observed by theSupreme Court as follows :-"32. The burden of proof that the Will has beenvalidly executed and is a genuine document is on thepropounder. The propounder is also required to prove thatthe testator has signed the Will and that he had put hissignature out of his own free will having a sounddisposition of mind and understood the nature and effectthereof. If sufficient evidence in this behalf is broughton record, the onus of the propounder may be held to havebeen discharged. But, the onus would be on the applicantto remove the suspicion by leading sufficient and cogentevidence if there exists any. In the case of proof ofWill, a signature of a testator alone would not prove theexecution thereof, if his mind may appear to be veryfeeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would beon the caveator. (See Madhukar D. Shende v. TarabaiShedage, 2002 (1) CTC 244 : 2002(2)SCC 95 and Sridevi &Others v. Jayaraja Shetty & Others, 2005(1) CTC 443 : 2005(8) SCC 784). Subject to the above, proof of a Will doesnot ordinarily differ from that of proving any otherdocument."(Emphasis added)14. Apart from these decisions, reference can also be madeto the decision of the Supreme Court in JT 1998 (3) S.C. 37 = (1998)4 SCC 384 (GURDIAL KAUR 7 OTHERS v. KARTAR KAUR & OTHERS), whereinit was observed :-"4. The law is well settled that the conscience ofthe court must be satisfied that the Will in question wasnot only executed and attested in the manner requiredunder the Indian Succession Act, 1925 but it should alsobe found that the said Will was the product of the freevolition of the executant who had voluntarily executed thesame after knowing and understanding the contents of theWill. Therefore, whenever there is any suspiciouscircumstance, the obligation is cast on the propounder ofthe Will to dispel the suspicious circumstance. As in thefacts and circumstances of the case, the court of appeal https://hcservices.ecourts.gov.in/hcservices/ below did not accept the valid execution of the Will byindicating reasons and coming to a specific finding thatsuspicion had not been dispelled to the satisfaction ofthe Court and such finding of the court of appeal belowhas also been upheld by the High Court by the impugnedjudgment, we do not find any reason to interfere with suchdecision. This appeal, therefore, fails and is dismissedwithout any order as to costs." (Emphasis added)15. A perusal of the aforesaid decisions makes it clearthat something more is required to be proved than mere proof ofsignature of the testatrix. It is required to be proved that thehand was with the mind and that the testatrix put her signatureintending to bequeath the property in the manner indicated.16. In 2006(2) CTC 756 (JOSEPH ANTONY LAZARUS (DEAD) BYL.Rs. v. A.J. FRANCIS), the Supreme Court dealt with an appealagainst a decision of the Madras High Court in the matter relatingto grant of probate. In the said case, the learned single Judge hadheld that the plaintiff had been able to prove proper execution andattestation of the Will and was entitled to grant of probate. TheDivision Bench had noted that the Advocate, who had drafted the Willand the Sub-Registrar before whom the Will was registered were notexamined and it was concluded that "there was no proof that thedocument had ever been read over and explained to the testatrixbefore the same was registered". While dismissing the appeal and confirming the decision of theDivision Bench, the Supreme Court observed inter alia:-"13. The last and perhaps the significant aspect ofthis matter is the failure of the appellant to examine thelearned advocate who is said to have drafted the Will onthe instructions of the testatrix and the non-examinationof the Sub-Registrar before whom the Will is said to havebeen presented for registration. Both the said witnessescould have conclusively proved the facts relating to thepreparation, execution and registration of the Will. Inthe absence of any evidence, we are unable to ascertainas to whether the Will was ever read over and explained tothe testatrix before she is said to have executed andpresented the same for registration. The cumulativeeffect of all the circumstances taken together gives riseto a genuine doubt regarding the genuineness of the Willand as to whether the same had, in fact, been executed bythe testatrix and, if so, of her own free volition."(Emphasis added)17. Learned counsel for the respondents has submitted thatsince the testatrix admittedly knew English, being a teacher, itmust be assumed, particularly keeping in view the provisions https://hcservices.ecourts.gov.in/hcservices/ contained in Section 114 of the Evidence Act, that before puttingthe signature the testatrix must have read the document. 18. It is of course true that ordinarily when a documentis written in a language known to the Executant and the signature ofthe Executant is either admitted or proved, it is for the Executantof the document, if alive, to explain under what circumstances thesignature is appearing on the document. However, since the Willtakes effect after the death of the Executant, obviously theExecutant would not be in a position to accept or deny thesignature. Therefore, the initial burden is always on thePropounder to prove that the testatrix has duly executed thetestament which would obviously include attestation, as underSection 63 of the Indian Succession Act, attestation is consideredto be a part of the execution. Attestation is required to be provedin accordance with Section 68 of the Evidence Act. Mere proof ofattestation does not prove "due execution" in each and every case.It is well known that an attesting witness need not know thecontents of the document and he merely attests the signature of theExecutant. If any Will is prepared in the presence of attestingwitnesses as per the instructions of the testatrix, obviously theattesting witnesses should be in a position to prove the executionof the Will. However, in the present case, the attesting witnesseshave stated that by the time they came, the document was alreadyprepared and the testatrix merely signed the document in theirpresence. It was therefore necessary for the Propounder of the Willto prove that the Will had been executed by the testatrix afterunderstanding the contents thereof. This could have been done byproving that the document had been prepared as per the instructionsof the testatrix or that the testatrix herself gone through thedocument or that it had been read over and explained to her or evenby other surrounding and circumstantial evidence like the testatrixacknowledging that the Will had been prepared according to herinstructions or even by the fact that execution of the Will had beenadmitted before the statutory authority such as the Sub-Registrar.19. In the present case, the Will has been notarisedbefore a Notary Public. It is of course true that the Will containsa certificate by the Notary that such Will was signed andacknowledged by the testatrix as her last Will and testament in thepresence of two witnesses. However, such Notary has not beenexamined and no explanation is forthcoming for non-examination ofsuch Notary. It is of course true that the Caveators had taken aplea that signature on the Will was forged, but subsequently theyhave given up such a contention at least in the present appeal. However, as already indicated, merely because the signatures of thetestatrix appear on the Will, it cannot be assumed for a moment thatthe testatrix had duly signed the Will after knowing the contentsthereof. https://hcservices.ecourts.gov.in/hcservices/

#20. Apart from the above, there are certain othersuspicious circumstances. It is no doubt true that a Will is notrequired to be registered. However, the previous Will had beenregistered, which is apparent even from the recitals made inparagraph 2 of the Will. No explanation is forthcoming as to whythe subsequent Will was also not registered, even though as per theevidence it is apparent that the Sub-Registrar's Office was hardlyfive buildings away. As per the previous Will, a life estate hadbeen given to the husband and both the sons were to inherit thehouse in question. As per the present Will, after the life estateof the husband, entire property is to be inherited by the second sonto the total exclusion of the first son. It is of course true thatin the first Will as well as in the second Will, daughters had beenexcluded as they were married and they were well off. There is, however, no evidence as to why the elder son, who was an equalbeneficiary with the second son as per the earlier registered Will, has been altogether excluded. It is of course true that in para 7of the Will it is stated that the eldest son has been adequately andwell provided for by the husband S. Santiago of the testatrix, butthere is no evidence on this aspect. Both the beneficiaries, thehusband and second son of the testatrix, have conveniently remainedaway from the witness box for no apparent reason.21. Learned counsel for the respondents has submitted thatas per the statement of the contesting defendant himself, a loan hadbeen arranged for the construction of the eldest son and that is thereason for the exclusion. The evidence on record does not clearlyindicate the loan which had been purportedly arranged by the fatherwas meant to be a loan either for the father or for the son and whohas to discharge the loan. At any rate, for explaining this aspect, the husband, who is one of the beneficiaries, should have beenexamined. It is also apparent from the evidence of the attestingwitnesses that they were quite close to the husband and the husbandwas present at the time of execution of the Will and, therefore, itcan be said that the Propounder has taken a prominent role inpreparation and execution of the Will and yet the husband has chosento keep himself away from the witness box. Coupled with theseunexplained circumstances and drawal of adverse inference, the lackof specific evidence relating to due execution of the Will prompt usto reverse the findings of the trial court. Accordingly, thejudgment of the trial court is liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/

#22. For the aforesaid reasons, this Original Side Appealis allowed and the judgment of the trial court is set aside. Nocosts. dpkSd/Asst. Registrar/true copy/Sub Asst. RegistrarTo1. The Sub-Asst. Registrar, Original Side, High Court, Madras2. The Record-Keeper, V.R. Section, High Court, Madras+ 1 cc to Mr. A. R. Nixon, Advocate, SR No.45380+ 1 cc to Mr. G. Rajan, Advocate, SR No.45222SSV(CO)SR/17.8.2007JUDGMENT IN OSA.246/2002