Kamala Menon Cochran v. K.P.Ramachandra Menon & Ors.

JUDGMENTK.RAVIRAJA PANDIAN, J.The Original Side Appeal is filed against the judgment anddecree of a learned single Judge of this Court dated 23.01.2001 madein T.O.S No.16 of 1994.2. O.P.No.343 of 1992 was filed under Sections 222, 237 and 276of the Indian Succession Act, XXXIX of 1925 for issuance of theProbate in favour of the plaintiff – Mrs. Kamala Menon Cochran inrespect of the Will of the deceased K.P.Janaki Amma executed andregistered on 11.01.1982 and later it was converted as T.O.S.No.16 of1994 as one of the brothers of the plaintiff K.P.Rajagopala Menonfiled caveat and disputed the Will. Subsequently, the other brotherswere joined as parties. 3. For the sake of convenience, the parties are referred to asarrayed in the suit. The precise case of the parties is as follows:One K.P.Janaki Amma died on 27.04.1991. She executed and registered aWill and testament on 11.01.1982 in the presence of witnesses, whosenames appear at the foot thereof, in the office of Sub-Registrar, T.Nagar, Chennai. The Original Will was lost and therefore a certifiedcopy of the registered Will has been filed. The plaintiff wasappointed as executrix of the said Will. Prior to the instantWill, the testatrix executed a Will on 28.12.1981, but cancelled thesame by executing the instant Will. The deceased Janaki Amma leftK.P.Balakrishnan,K.P.Chandrasekaran, K.P.Rajagopal, K.P.Ramachandran,the sons, Kamala Menon Cochran, the daughter and Geetha Sridhar,grand daughter, as her legal heirs. The said Geetha Sridhar filed anaffidavit conveying her no objection for issuance of the probate ofthe Will dated 11.01.1982 to the plaintiff-executrix. The plaintiffsought for probate. 4. K.P.Rajagopal, (since deceased), the first defendant filedwritten statement contending that the testatrix Janaki Amma had nodisposing right over the property as the property was purchased inthe name of the testatrix by her husband in the year 1937. Thetestatrix was under the care and custody of the plaintiff and theother children of the testator were prevented from meeting her by theplaintiff. The plaintiff has tremendous influence on her mother, thetestatrix and deceived her into making the Will. The earlier Willdated 28.12.1981 was cancelled by the Will dated 11.01.1982. Thecontents of both the Wills are same. The only difference is that inthe first Will, the witnesses are the neighbours of the testatrix andin the second Will the witnesses were the plaintiff's colleagues. Byundue influence and coercion the plaintiff, made her mother toexecute the first Will and later suspecting that her treachery mightbe exposed, the plaintiff managed to get the second Will made by hermother on the witnesses having allegiance to her. The two Wills madewithin the interval of fourteen days without any difference in thecontents raised a doubt to the genuineness of the Will. At the timeof execution of the Will, the testatrix had four sons and daughter-the plaintiff. It is impossible to believe that the testatrix would https://hcservices.ecourts.gov.in/hcservices/ have disinherited her sons and bequeathed the entire propertyexclusively to the plaintiff and grand daughter born to the pre-deceased daughter. The alleged Will having been made nine years priorto the death of the testatrix, it is impossible to believe that thetestatrix had not told any of her children about the Will. It isfurther averred that the first defendant filed a partition suit ofall the properties left behind by his mother Janaki Amma and herhusband Echunni Menon and the same is pending in O.S.No.49 of 1994before the Sub-Court, Ottapalam, Kerala. The bequeathed property isalso one among the properties of the partition suit. 5. The second defendant Ramachandra Menon filed writtenstatement on 24.12.1997 verbatim reproducing the averments containedin the written statement of the first defendant, but, filedadditional written statement on 05.06.1999 wherein he denied theexecution of the Will by the testatrix, with full knowledge, freevolition and in good state of health and further contended that thesignature contained in the Will is not that of the testatrix, butforged one.6. The fourth defendant K.P.Chandrasekaran filed writtenstatement contending, inter alia, that even a few days before thedeath of K.P.Janaki Amma with whom the fourth defendant was onexcellent terms had requested the defendant to introduce her to anadvocate so that her last Will and testament could be written. So, itis obvious that Janaki Amma did not execute the Will on 11.01.1982.The alleged Will was the outcome of undue influence and coercionexerted by the plaintiff. The very fact that the testatrix wasmurdered brutally on the night of 27.04.1991 would indicate that whoever has got her last Will and testament did not give her anopportunity to change the same or execute a fresh Will. In otheraspects, the written statement is identical as that of the otherdefendants. 7. While the matter was pending before the learned trial Judge,the first defendant Rajagopala Menon died on 03.03.2000 and his legalheirs were brought on record as defendants 5 to 7.8. Before the learned trial Judge, certified copies of theWills were marked as Exs.P.1 and P.2 respectively. The xerox copy ofEx.P2 is marked as Ex.P7 and the letter of the testatrix dated10.12.1981 to the first defendant is marked as Ex.P.8. The plaintiffexamined herself as P.W.1. The other beneficiary under the Will,Ex.P.2 Geetha Sridhar was examined as P.W.2. One of the attestingwitnesses Jayalakshmi was examined as PW 3. The Sub Registrar ofT.Nagar Registrar's office, who registered the Will was examined asP.W.4. The wife of the second defendant one Indira Ramachandran hasbeen examined as D.W.1. The fourth defendant K.P.Chandrasekaran wasexamined as D.W.2.9. The learned trial Judge, after trial, non suited theplaintiff for the issuance of probate on the ground that the evidencewould point out the undue influence exercised by the plaintiff overher aged and ailing mother for the preparation, execution and https://hcservices.ecourts.gov.in/hcservices/ attestation of the alleged Will, that the plaintiff has takenprominent part in the execution of the Will to grab the property,that the Will was prepared under suspicious circumstance, that it didnot express the real mind and intention of the testatrix, that theplaintiff neither proved the execution and attestation of the Will asrequired by law nor explained to the satisfaction of the Court toaccept the Will as genuine. The correctness of the same is nowcanvassed in this appeal. 10. Heard the learned counsel in either side and perused thematerials available on record.11. The line of judgments of the apex Court say in one voicethat the onus of proving the Will is on the propounder. In theabsence of suspicious circumstances surrounding the execution of theWill, proof of testamentary capacity and the signature of thetestator, as required by law, is sufficient to discharge the onus.Where however there are suspicious circumstances, the onus is on thepropounder to explain them to the satisfaction of the court for theCourt to accept the Will as genuine. Even where circumstances giverise to doubts, it is for the propounder to satisfy the conscience ofthe court. There must be real, germane and valid suspicious featuresand not fantasy of doubting mind. The suspicious circumstances may beas to the genuineness of the signatures of the testator, thecondition of the testator's mind, the dispositions made in the Willbeing unnatural, improbable or unfair in the light of relevantcircumstances, or there might be other indications in the Will toshow that the testator's mind was not free. In such a case the Courtwould naturally expect that all legitimate suspicions should becompletely removed before the document is accepted as the last Willof the testator. If the propounder himself takes a prominent part inthe execution of the Will which confers a substantial benefit on him,that is also a circumstance to be taken into account, and thepropounder is required to remove the doubts by clear and satisfactoryevidence. 12. The legal requirement in terms of sections 63 of the IndianSuccession Act, 1925 and 68 of the Indian Evidence Act, 1872 is nowwell settled. A Will, like any other document, is to be proved interms of the provisions of the Indian Succession Act and IndianEvidence Act. The testamentary capacity of the propounder must beestablished. The execution of the Will by the testator has to beproved. Atleast, one attesting witness is required to be examinedfor the purpose of proving the execution of the Will. However, it isalso required to be shown that the Will has been signed by thetestator/testatrix with his/her free Will and that at the relevanttime he/she was in the sound disposing state of mind and understoodthe nature and effect of disposition. It is also required to beestablished that he/she has signed the Will in the presence of twoattesting witnesses, who attested his signature in his presence orin the presence of each other. The deprivation of due share by thenatural heirs by itself is not a factor, which would lead to theconclusion that there existed suspicious circumstances. But thebackground of the facts would tilt to the balance otherwise. When a https://hcservices.ecourts.gov.in/hcservices/ will is prepared and executed under circumstances which raise thesuspicion of the Court, it lies on the propounders not merely toprove the execution of the will, in the sense that it was signed bythe testator, but also to adduce evidence which removes suchsuspicion and to satisfy the Court that the testator/testatrix knewand approved of the contents of the Will. A Court of probate is aCourt of conscience and will insist on every suspicious circumstancesurrounding the execution of the instrument dispelled by theplaintiff. Being a Court of conscience does not mean that it is alsoa Court of suspicion seeking imaginary grounds for suspicion, evenwhere there is no reasonable basis for entertaining suspicions. Itis the privilege and right of the testator/testatrix to keep his/herWill secret if he/she so desires. Altering the natural course ofsuccession being the very object of making the Will, the fact that ithas been altered to some extent does not by itself constitute asuspicious circumstance - vide - Sadachi Ammal v. Rajathi Ammal, AIR1940 Mad 315, Indu Bala Bose v. Manindra Chandra Bose, (1982) 1 SCC20), Guro (Smt) v. Atma Singh, (1992) 2 SCC 507, S. VenkatachalaIyengar v. B.N. Thimmajamma, AIR 1959 SC 443, Rani Purnima Devi v.Kumar Khagendra Narayan Dev, AIR 1962 SC 567, Savithri v.Karthyayani Amma, (2007) 11 SCC 621), Jaswant Kaur v. Amrit Kaur,(1977) 1 SCC 369. Ramabai Padmakar Patil v. Rukminibai VishnuVekhande, (2003) 8 SCC 537, P.P.K.Gopalan Nambiar V.P.P.K.Balakrishnan Nambiar, AIR 1955 SC 1852, Pushpavathi V.Chandraraja Kadamba, AIR 1972 SC 2492, Rabindra Nath Mukherjee v.Panchanan Banerjee, AIR 1995(4) SCC 459 and Daulat Ram v. Sodha,(2005) 1 SCC 40. Keeping in mind the above propositions, let usconsider the case now.13. First, let us consider whether the Will, Ex.P2 has beenproved, as required by law. P.W.1 has spoken to the effect that hermother, the testatrix, in January 1982 told her that she had executedthe first Will on 28.12.1981 and made her as the executrix and asthat first Will contained some mistake as to the number of livingsons, she wanted to execute another Will on the advice of theRegistrar that the first Will could not be rectified. The first Willwas attested by one Chakrapani and Sriram, the neighbours of thetestatrix. The testatrix being embarrassed in again requesting themto be the witnesses in another Will, within a short period, requestedSeetha Padmanabhan, who is also a neighbour and known to the familyfor more than 20 years and also requested Jayalakshmi a colleague ofP.W.1. The said Jayalakshmi is not only a colleague of P.W.1, butalso a family friend known to and knowing all the family members ofthe testatrix. On 11.01.1982, P.W.1 along with the testatrix and twowitnesses went to the Sub Registrar's office, T.Nagar, wherein thetestatrix showed the Will to the Sub Registrar. The witnessesidentified her. The testatrix signed the Will and thereafter theRegistrar asked the witnesses to attest the Will. The witnessesattested the Will. 14. As an attesting witness Jayalakshmi P.W.3 has spoken toabout the execution of the Will by the testatrix in her presence.She went to testatrix's house on 11.01.1982; that the testatrix tookher as well as Seetha Padmanabhan to the nearby Registrar's office; https://hcservices.ecourts.gov.in/hcservices/ that the house of Seetha Padmanabhan was very near to the house ofthe testatrix; and that they went by walk to the Registrar's office.The testatrix presented the Will to the Registrar. P.W.3 identifiedJanaki Amma who signed the Will in the presence of witnesses.Thereafter, P.W.3 attested the document and later Seetha Padmanabhansigned the document. 15. P.W.4, the Sub Registrar who is an uninterested andindependent witness, has clearly spoken to about the execution ofEx.P2 stating that it has been registered by him, after verifying theidentity of the testatrix. His evidence proceeds to the effect thatthe document was presented for registration by one Janaki Amma on11.01.1982. P.W.4 put questions under Rule 3(1) of the RegistrationRules and after satisfying himself, the document was registered. Twoindependent witnesses have identified Janaki Amma before him. Hisevidence, though not to be regarded as evidence of attesting witnesswith 'Animus attestandi', but definitely can be taken as an evidencefor the execution of the Will. The evidence of P.W.1, thepropounder, P.W.3, one of the attesting witnesses of the Will andthat of P.W.4, the Sub Registrar, who registered the Will would provethe execution of the Will, as required under section 63 of theSuccession Act and Section 68 of the Evidence Act. Thus, the onus ofproving the Will has been discharged by the propounder, as requiredby law. 16. A stand is taken in the written statement of defendants 1, 2and 4 that the testatrix Janaki Ammal had no disposing right over thesuit property, as the property was purchased by her husband and thus,did not belong to her exclusively so as to entitle her to bequeaththe property; and that the property belongs to the legal heirs of thetestatrix's husband. Though such a stand was taken, that has notbeen established by the defendants by adducing necessary evidence.It is an admitted fact that the property was purchased in the year1937 in the name of Janaki Amma and she had been in possession andenjoyment of the same throughout and was residing in it till herdeath on 27.04.1991. Apart from that, the question of title does notarise for consideration in the suit for issuance of probate. Thelearned trial Judge has also come to the same conclusion, whichrequires no modification.17. In the written statements of the defendants, a consciousstatement is made that the testatrix was under the care and custodyof the plaintiff and the other children of the testatrix wereprevented by the plaintiff from meeting her; that the plaintiff hadtremendous influence on her mother; that she has deceived her mother;and that the Will is the outcome of the undue influence and coercionexercised by the propounder. It is well settled that the person whopleads undue influence and coercion on the part of the propounderover the testatrix to execute the Will, has to prove the same. VideSavithri v. Karthyayani Amma, 2008-1-LW 255. There is absolutely noevidence adduced to sustain the same. The Will is dated 11.01.1982.It is uncontroverted, rather, admitted fact that P.W.1 was livingaway from her mother right from the year 1961 when she was studyingin Bangalore and after completion of her college studies, she stayed https://hcservices.ecourts.gov.in/hcservices/ at Tirupathi, as she was employed as a Professor in PadmavathiCollege, Tirupathi from the year 1966. She used to call on her motherduring weekends and holidays. As a matter of fact, Ex.P.1 wasexecuted on 28.12.1981 bequeathing the properties on P.Ws.1 and 2during which period also, P.W.1 against whom the allegation ofexercise of undue influence was alleged, was at Tirupathi. In theWill, Ex.P.2 dated 11.01.1982 the properties have been bequeathed toP.Ws.1 and 2. Only during the period of execution of Ex.P.2 thepropounder P.W.1 was at Madras. Merely being present andaccompanying the testatrix to the Registrar's office could not, byitself, be regarded as exerting coercion or undue influence on hermother or taking a prominent part in the preparation, execution andattestation of the Will. 18. It is on evidence that only the fourth defendantChandraksekaran and the other deceased brother Velayutham were allalong with the testatrix at Madras. When that being the position, inthe absence of any clinching evidence to show that the plaintiffexerted coercion or undue influence, like, she threatened that shewould remain away from her mother if the testatrix did not give theproperty to her and not calling on her mother on that ground; or thatthe plaintiff had always been with her mother, helping and satisfyingall the needs of her mother and thereby influencing her to executethe will in her favour is also not available in the given set offacts. There is not even an iota of evidence made available beforethe Court to atleast to reach an inference that the plaintiff wouldhave exerted undue influence and coercion on the testatrix. The oneand the only evidence available on record through D.W.1, the wife ofthe second defendant is that the plaintiff must have exertedinfluence on Janaki Amma to execute the Will. Even this sort ofevidence is not coming through D.W.2 Chandrasekaran. The evasiveevidence of D.W.1, is not supported or corroborated by any otherevidence or material, and such an evidence did not inspire theconfidence of the Court. The suggestions made to that effect to P.W.1has been categorically denied by her in her cross examination.19. The reason for bequeathing is stated in the Will itself,which reads thus :"I have at present living five sons and one daughter.All of my sons are settled in life and, moreover, duringthe life of my late husband, properties were purchased intheir names. I am, therefore, leaving no bequest to them.I had a daughter named K.P.Leela who died on February2, 1975, leaving her only child K.P. Geetha, who wasmarried on January 23, 1978 to Sridhar Marar. In view ofthe irreparable bereavement caused by the death of thisbeloved daughter, I am deeply attached to my grand-daughterand wish to provide for her in the event of my death justas I would have wanted to provide for her mother had hermother survived me. https://hcservices.ecourts.gov.in/hcservices/ I have a second daughter, K.P. Kamala Menon, aged 44and spinster, who is presently employed as Principal, SriPadmavathi Women's college, Tirupathi, Andhra Pradesh. Shetoo is dear to me and I wish to provide equally for her."20. It is an admitted fact that after the execution of Ex.P2,the Will on 11.01.1982, the testatrix was very much alive till 1991.If the contention of the defendants that the Will is the outcome ofcoercion or undue influence, the testatrix would have cancelled ormodified the Will immediately after P.W.1 went back to Tirupathi orsome months later or some years later. This act of the testatrix tokeep the registered Will in tact till her death, not only falsifiesthe case of exertion of coercion and undue influence, but also theevidence of the fourth defendant as D.W.2 that few days prior to thedeath of the testatrix, she requested him to introduce an advocate toexecute her last Will. It is the uniform stand of the defendants thatthe testatrix intended that the properties should be partitionedequally by all the heirs. If that be the case, the statement ofChandrasekaran that few days before her death, the testatrixrequested him to introduce an advocate for the preparation of theWill is against the very stand of the defendants for equal partition.It is to be noted that the fourth defendant was arrested and later onreleased on bail by the police in connection with the murder of thetestatrix and her another son Velayutham on 27/28.04.1991. 21. Further, almost all the witnesses including D.Ws.1 and 2have categorically deposed that the testatrix was a very strongwilled, independent and shrewd woman which shows that she would notsuccumb to coercion. There is no possibility to exert pressure orcoercion or undue influence on her. 22. On a reading of the Will and on the analysis of the evidenceavailable on record, we are of the view that the defendants have notproved the case of undue influence exerted by P.W.1 for writing theWill. So is the contention with regard to the prominent role playedby P.W.1 for preparation, execution and attestation of the Will.23. It is contended on behalf of the defendants that the nonproduction of the original of the Wills, Exs.P.1 and P.2 and thepossession of the xerox copy of the Will, Ex.P2 create suspiciouscircumstances. P.W.1 has clearly spoken to about the circumstance inwhich the first Will, Ex.P1 was destroyed. She has deposed thather mother, the testatrix came to Tirupati after her surgery forsubdural haematoma and she was there at Tirupathi from August 1989till the end of October 1989 for recuperation. The testatrix askedP.W.1 to take a copy of Ex.P2 and accordingly she took out a xeroxcopy and placed the original Will in a brown envelope super-scribingit as KPJ's Will and returned it to the testatrix. At the request ofthe testatrix the original Will of Ex.P1 was destroyed by her. Thetestatrix alone was having the Will, Ex.P2. It is the furtherevidence of P.W.1 that on 27/28.04.1991 she came down to Madrasfrom Tirupathi on hearing the news of the murder of her mother; thatshe was shocked on seeing the body of her mother, and that afterrelieving from the initial shock she remembered about the Will. When https://hcservices.ecourts.gov.in/hcservices/ she was searching for a cloth to be placed on the body of her motherin the almirah, she saw the empty envelope in which the Will waskept originally, super-scribed as KPJ's Will. It is the furtherevidence of P.W.1 that at the time of seeing the empty envelope, thefourth defendant was there, but however that was denied by the fourthdefendant. So, the non availability of the original Will with P.W.1has been clearly established by her evidence. There is no contraevidence available to the effect that P.W.1 has deliberately with-held or suppressed the original Will. The certified copy of theregistered Will, Ex.P.2 was marked. It is settled law that if thepropounder establishes the loss of the original Will beyond doubt,the secondary evidence, inter alia, could be led by production ofcertified copy given in terms of the provisions of the IndianRegistration Act. (Benga Behera v. Braja Kishore Nanda, (2007) 5 MLJ159 SC).24. The act of the plaintiff marrying a foreigner has been putagainst the execution of Will bequeathing property to P.W.1. P.W.1has admitted in her evidence that she got married to Cochran, anAmerican citizen in the year 1983; and that the testatrix did notapprove her marriage with the American initially and she got over thesame after two years. In fact, she deposed that when the testatrixcame to Tirupathi, after surgery, it was her husband who attended herand the testatrix was greatly impressed with him and she said that helooked upon her as more than her sons. This marriage of P.W.1,admittedly took place in the year 1983, after the execution of theWill, Ex.P.2 on 11.01.1982. If the testatrix was not willing to givethe property to the plaintiff who married a foreigner, she would havecancelled the Will, but till her death in the year 1991, the Will,Ex.P2 remained unaltered and in tact. Hence, the marriage of P.W.1with the foreigner cannot have any bearing on the Will, which hasbeen executed well prior to her marriage. 25. The other contention on the side of the defendants is thatthe Will is a forged one. The second defendant, after 1½ years offiling the original written statement, has filed an additionalwritten statement wherein the Will has been characterised as forgedone. None of the other defendants have alleged forgery. In order tobuttress this point, the non production of the original Will has beenpointed out. In the earlier paragraphs, we have discussed theevidence and accepted and concluded that P.W.1 has established beyonddoubt about the loss of the original Will. The certified copy of theWill has been marked as Ex.P.2. The Will is a registered one. Theregistration has been spoken to by P.Ws.1 and 3. In addition to thatthe Sub Registrar has also spoken to about it as P.W.4. 26. P.W.1 has denied the suggestion made that Ex.P2 is a forgedone by saying that the Will is not a forged one. She deposed - "Isaw my mother signing the document. The original Will was never inmy possession." The signature in the xerox copy of the Will, Ex.P.7and the signature of the testatrix in her admitted letter, Ex.P.8 areone and the same. DW1 the wife of the second defendant has statedthat there is some difference in the letter K. However, she admittedthat the signature in Ex.P.8 is that of her mother-in-law. Except https://hcservices.ecourts.gov.in/hcservices/ the oral evidence disputing the initial K, without any corroborationor material, there is nothing on record to prove the contention thatthe signature of the testatrix in the Will, Ex.P.2 is a forged one.P.W.4, the Sub Registrar who is an uninterested and independentwitness, has clearly spoken to about the execution of Ex.P2 statingthat it has been registered by him, after verifying the identity ofthe testatrix. His evidence proceeds to the effect that the documentwas presented for registration by one Janaki Amma on 11.01.1982.P.W.4 put questions under Rule 3(1) of the Registration Rules andafter satisfying himself, the document was registered. Twoindependent witnesses have identified Janaki Amma before him. Forrejecting this evidence, nothing was put forth for consideration. 27. The defendants' counsel pointed out an another suspiciouscircumstance surrounding the Will, i.e., P.W.3, who is a close friendof P.W.1 was preferred to be the witness of the second Will, Ex.P.2,whereas, in the first Will, Ex.P.1 the witnesses were the neighboursof the testatrix. Fearing that the treachery of P.W.1 may come outat any stage from the neighbours, P.W.3 has been brought in as awitness in the second Will, Ex.P.2. Further, the another witness ofthe second Will, Ex.P.2 Seetha Padmanabhan, who is a neighbour of thetestatrix was not examined before the Court. 28. It is on evidence of P.Ws.1 and 3 that P.W.3 is a colleagueof P.W.1 since 1966 and she is known to and knowing all the familymembers of the testatrix. It is spoken to by P.W.3 in her evidencethat not only the testatrix, but also her sons used to go to herplace at Tirupathi and stay with her in her house. Likewise, it isalso spoken to by her that she is known to the family from 1966.P.W.3 used to visit the testatrix at Chennai and she also visitedP.W.1's brother at Delhi. Whenever she goes to Madras to see hersister and others, she used to call on the testatrix. She knows thefamily members of the testatrix including the defendants-sons andtheir respective wives, which factums have never been denied by thedefendants, rather admitted by D.W.2. From the above evidence, it isevident that P.W.3 is a well known friend of all the family membersof the testatrix. Calling her to attest the Will could not beregarded as a suspicious circumstance. In the absence of any changein the bequeathment and the beneficiaries, and in the light of thevalid reason adduced for execution of the second Will, Ex.P2, thecontention of treachery has to be rejected. Seetha Padmanabhan wasnot examined for the reason that she had become very old, aged about80 years and she was very fragile and she could hardly walk. Thisexplanation in the evidence of P.W.1 has not been disproved ordemolished in the cross examination. The legal requirement is thatone attesting witness has to be examined. In this case, the familyfriend of the testatrix, P.W.3 has been examined to fulfil the legalrequirement. The non examination of Seetha Padmanabhan has also beenproperly explained. 29. The next ground of attack on the Will, Ex.P2 is that thetestatrix was not an educated lady and she knows only to sign hername in English. But, the Will has been drafted in English. Hereagain, though much was concentrated in the evidence, as well as https://hcservices.ecourts.gov.in/hcservices/ argued about her knowledge in English, the other factum ofpreparation of the first Will, Ex.P.1 stated by P.W.2 has beentotally eschewed from consideration for whatever reason. P.W.2, thegrand daughter has spoken to about how the first Will dated28.12.1981 came to be executed. In December 1981, when she was atMadras, the testatrix directed P.W.2 to consult the lawyer one Babu,who was residing opposite to the house of the testatrix regardingexecuting a Will. After consultation, P.W.2 and the testatrix wentto the house of one Chakrapani, a friend and neighbour of thetestatrix and the testatrix informed him that she wanted to executethe Will, but did not want the Will to be prepared by that advocateliving nearer to her house. Therefore, on the advice of Chakrapani,P.W.2 and the testatrix went to one Mr.Narayanan, advocate atT.Nagar. After preparing the Will, on the advice of Narayanan, thetestatrix took Chakrapani and Sriram to the Sub Registrar's office.The witnesses identified the testatrix. The testatrix signed theWill. The witness also signed. She further deposed to the effectthat during her next visit in August 1982, the testatrix informedthat she had executed another Will, Ex.P.2, as the first Will dated28.12.1981 contained mistake that the testatrix had four living sonsinstead of five. There is no dispute that there is no difference inthe two Wills. The only difference in the second Will from that ofthe first Will is that the number of living sons is stated as fiveinstead of four. The preparation of the Will, Ex.P.1 has beenproperly explained by P.W.2 and Ex.P.2 is the reproduction of Ex.P.1with correction as to the number of living sons the testatrix had.Hence, the Will in English cannot be regarded as a suspiciouscircumstance to disbelieve the Will.30. The non information of the execution of the Wills by themother to the sons has been taken as one of the suspiciouscircumstance. When the testatrix did not want the Will to beprepared by the advocate residing nearer to her house, that impliesthe intention of the testatrix to keep the execution of the Willsecret. It is the privilege and right of the testator/testatrix tokeep his/her Will secret, if he/she so desires. Executing a Will andnot disclosing the factum to others cannot be treated as a suspiciouscircumstance in the context of the facts of the case. 31. It is the contention of the defendants-sons that they werevery cordial and dear to the testatrix and the intention of thetestatrix was that all the legal heirs should share the property inequal proportion, which was manifest from Ex.P8 letter and that therewas no ground made out to deviate from the line of succession. 32. Much was argued with reference to letter Ex.P.8. Thelearned single Judge has also relied on the letter to approve theargument of the defendant. In order to have a clear understandingas to what the letter conveys, we are of the view that the letter hasto be extracted so as to enable us to consider the same in its rightperspective : https://hcservices.ecourts.gov.in/hcservices/ "Mambalam,10.12.1981My son Thangamani,I wanted to write to you some days ago. I have becomevery old, my mind and body are week.Read this letter keeping your father in your mind. Yourfather worked very hard, gone through lot of difficulties,made little money. He has not cheated any one nor taken anybribe. This is the truth. I was with him from 1918 onwards.Father loved the family. One sister and a grand uncleand Achuthamma were his relations. He also had otherrelations. He used to help them. He helped my brother. Mybrother also know it. I know that father owed you money. Hehad kept a proper account. I am sending you photo copy of astatement. Father had said that an excess amount ofRs.6000/- has been included in your account. You must giveme the account of the money you have spend during father'sfuneral and for the Delhi trip. At the time of partition itwill be accounted.The Kodambakkam land and house are in the name of youall. Tambaram house is in father's name. Males and femaleshave equal rights. Mambalam house is in my name. I willstay in this house until my death. If I want to sell it Iwill do so. Keeping this in mind you must partition what allthere without any difference, at the earliest. This is myspecial advice. If you go to Court there will not be anymoney left. I have said all that I have to say. I am themother of all of you who brought you up. You should not makeme sad in my old age. With this I am stopping this letter."Thangamani is the pet name of the first defendant, as deposed byP.W.1 in her evidence. 33. The language used in the letter would help us to construethe real intention of the author of the letter. The language is theconveyance or medium in which thoughts and ideas are transmitted fromone to another. The multiplicity of thoughts and complexity of ideasin modern times necessitate either a startling increase in thecoinage of words, or the giving to existing words many meanings, suchas primary or secondary, general or specified, popular or technical.(vide P.Ramanatha Aiyar's Advanced Law Lexicon - 3rd Edition 2005).Any means of conveying or communicating ideas; specifically, humanspeech, or the expression of ideas by written characters or by meansof sign language. The letter, or grammatical import, of a documentor instrument, as distinguished from its spirit; as "the language ofthe statute. (Vide Black's Law Dictionary - 5th Edition). The letterhas to be construed with reference to its object and the whole of itsterms. The whole context must be considered to ascertain theintention of the parties. It is an accepted principles ofconstruction that the sense and meaning of the parties in any https://hcservices.ecourts.gov.in/hcservices/ particular part of instrument may be collected, "ex antecedentribusat consequentibus" every part of it may be brought into action inorder to collect from the whole one uniform and consistent sense, ifthat is possible. (Vide Provash Chandra Dalul v. Biswanath Banerjee,AIR 1989 SC 1834). The maxim "ex antecedentribus at consequentibus"means a passage is best interpreted by reference to what precedes andwhat follows it. 34. By taking clue from the above well recognised constructionof a letter, let us now consider what the letter of the testatrixdated 10.12.1981 written to her son conveys. 35. The tenor of the letter, in our considered view, does notreflect her intention that the property bequeathed should be sharedequally among the legal heirs, as contended. The letter is rathermanifestation of pain and anguish about the attitude or the way inwhich the sons were behaving. There is no surprise in a motherwriting a letter to her son. The meaning underlying the languageemployed in the letter expresses so many stories. The letter starts, "I wanted to write to you some days ago. Read thisletter keeping your father in your mind. Your father workedvery hard, gone through lot of difficulties, made littlemoney. He has not cheated any one nor taken any bribe. Thisis the truth."It is not as if the sons were not aware of the father's way ofleading life. When a mother at her old-age writes a letter with thesewords, reminding the way of life of their father, that would indicatethat the sons are not behaving in the proper way in which they areexpected to behave. The further wordings of the letter makes itamply clear that the mother was asking her son to send the detailsabout the expenses he incurred for the funeral of the father forsettling the same to him, by stating, "I know that father owed youmoney. He had kept a proper account. I am sending you photo copy ofa statement. Father had said that an excess amount of Rs.6000/- hasbeen included in your account. You must give me the account of themoney you have spend during father's funeral and for the Delhi trip.At the time of partition it will be accounted." If the relationshipof the sons with the mother or for that matter with the family is socordial, as claimed by the defendants, there is no need for themother to ask the details of the amount spent by a son for hisfather's funeral, as it is his obligation, pious or otherwise toperform the funeral of the father. The sentences impliedly expressthat there is no cordial relationship with the sons in money dealingsfor long number of years which could be gathered from the fact thefather died in the year 1975, whereas the letter was written in theyear 1981. 36. The next paragraph of that letter, which was much relied onto project the intention of the testatrix to the effect that theproperties have to be shared in equal proportion reads, "TheKodambakkam land and house are in the name of you all. Tambaramhouse is in father's name. Males and females have equal rights. https://hcservices.ecourts.gov.in/hcservices/ Mambalam house is in my name. I will stay in this house until mydeath. If I want to sell it I will do so. The above sentences havebeen construed to mean by the learned trial Judge that the testatrixwanted that all the properties should be partitioned equally amongthe heirs including the Mambalam house. 37. Here again, we are not able to concur with the argument ofthe learned counsel for the defendants as well with the view of thelearned single Judge. The letter clearly states that the Kodambakkamland and house are in the name of all the children. Tambaram housewas in father's name, who was no more. Those properties have to bedivided among the sons, daughter and grand daughter. The Mambalamproperty has not been included in the above said property forpartition. In respect of the Mambalam house, which was in her name,she asserts her right to stay till her life time and she would alsofurther assert her right of disposal by saying that she would sell itif she wishes to. By this, she makes it clear that she would dealwith the Mambalam property according to her wish. The furthersentences in the letter - "Keeping this in mind you must partitionwhat all there without any difference, at the earliest. This is myspecial advice. If you go to Court there will not be any money left.I have said all that I have to say. I am the mother of all of youwho brought you up. You should not make me sad in my old age. Withthis I am stopping this letter" - indicate that there was somedifference of opinion in sharing the properties with some glimmeringintention to move the Court by the sons. But for, such anapprehension of such move, there is no need for the old mother towrite to the son to the effect that if he goes to Court there wouldnot be anything left. It otherwise would mean to say, 'Do not go toCourt". The warning so made by the mother has become true as thedefendants have filed a suit for partition. The concluding sentencethat 'she had said all that she have to say', would, in the contextof the letter, mean that the mother expressed her intention foramicable partition without going to Court, but left the decision tothe son by cautioning or reminding that she is the mother of all andshe should not be made sad at her old age. By writing so, sheabruptly stopped the letter with that, even without conveying theusual blessing or at least the usual courtesy a mother would end aletter, like, 'your loving mother', etc. If the Mambalam property isto be shared in partition, there is no requirement for the testatrixto assert that she would stay in the house till her death. So, theonly conclusion that could be reached from the letter is that theMambalm property has been carved out from the properties which haveto be partitioned equally. 38. The other contention that the line of succession is deviatedis also raised, in our view, for the sake of rejection. There isabsolutely no embargo in the testamentary jurisdiction while writinga Will the line of succession should not be disturbed. The verypurpose of writing a Will is only to deviate from the line ofsuccession. The reasons for deviating from the line of successionare stated in the Will itself. In the recital of the Will, in thefirst paragraph, the testatrix has said that the sons are wellsettled. That part of the recital is taken advantage by the https://hcservices.ecourts.gov.in/hcservices/ defendants by contending that the daughter is also well settled andhence there is no ground for deviation from the line of succession.The first paragraph of the Will reads :"I have at present living five sons and one daughter.All of my sons are settled in life and, moreover, duringthe life of my late husband, properties were purchased intheir names. I am, therefore, leaving no bequest to them."The recital, by itself, would amply make it clear that the sons arewell settled, which factum has been admitted by D.W.1 in her crossexamination. The recital also manifests that the testatrix wants todeviate from the line of succession and the reasons are stated by herfor doing so. 39. Some exception has been pointed out in the judgment of thelearned single Judge about the discrepancies about the place ofexecution of the Will with reference the Original Petition, filed forissuance of probate. We are not able to approve the same. TheOriginal Petition has been filed in Form 55 under Order XXV Rule 4 ofthe Original Side Rules for filing an application of probate of aWill. The relevant portion of the prescribed format is extractedhereunder :"I, J.K., of (residence and description) one of thewitnesses of the said Will and testament of A.B., thetestator mentioned in the petition, declare that I waspresent together with .............. at the houseof ........... and we did then and there see the saiddeceased set and subscribe his name at the foot of thesaid Will now shown to me and marked A and declare andpublish the same as and for his last will and testament,and that thereupon, I and the said ............ did atthe request of the said deceased and in his presence andin the presence of each other, all being present at thesame time, set and subscribe our respective names andsignatures at the foot of the said Will as witnessesthereof." (emphasis supplied).40. The term "at the house of" has been taken out of context andthat has been characterised as inconsistent with the evidence. Thediscrepancy cannot be a conclusive to say that the Will was executedin the house of the testatrix, as the Original Petition is drafted asper the prescribed format. The evidence of P.Ws.1, 3 and 4 arecogent and corroborative to each other about the place of executionof the Will at the Registrar's office at T.Nagar. 41. A Division Bench of this Court in the case of CorraVedachalam Chetty v. G.Janakiraman, 2001 (3) CTC 283, has held asfollows : "The testamentary Court is a Court of conscience.It is not a Court of suspicion. It is not the lawthat, whenever a Will is sought to be proved in theCourt, the Court should start with the presumption thatthe Will is not genuine, that it is fraudulent and that https://hcservices.ecourts.gov.in/hcservices/ the person who chooses to probate the Will must removeall such suspicions even they are unreal. The objectof the probate proceedings is not to render thetestamentary document ineffective but to make iteffective and render the terms of that Will operative.In doing so, the Court has to take note of the factthat the testator is not available to the Court tostate as to whether the document in fact was his or herlast Will or as to whether he or she had signed thesame and whether the attestors had signed receiving anacknowledgment from her about the execution of theWill. It is for that reason that the Courts should becautious while dealing with the evidence placed beforethem in relation to the executions and attestation ofthe Will as also the disposing state of mind of thetestator. This need for caution cannot be exploited by theunscruplous caveators who choose to cull out imaginarysuspicions with a view to prevent the legatees underthe Will from claiming the benefit thereunder and torender the last Will of the deceased whollyineffective. In this context, the conduct of thepersons who raise the alleged ground for suspicion isalso to be looked at, to know as to how credible arethe grounds for suspicions sought to be raised by suchpersons." 42. We are of the view that it would be appropriate in thiscontext to quote the observations of their Lordships made in Suna AnaArunachalam Chetty v. S.R.M. Ramaswami Chetty, 1916 Indian Cases(Vol.XXXV) PC 1 :"When a Will has once been made and is apparently inperfect form, and the evidence of the attesting witness is tobe trusted, few things can be more dangerous than to attemptto recreate the kind of Will that the man ought, in theopinion of the Court, to have made and once the man's mind isfree and clear and is capable of disposing of his property,the way in which it is to be disposed of rests, with him, andit is not for any Court to try and discover whether a Willcould not have been made more consonant either with reason orwith justice."43. It would be apt to quote few of the legal positions deducedby a Division Bench of this Court in the case of Palaniswami v.P.Vellingiri Grounder, 2003-3-LW 363 :"The Will is the Will of the testator and he has, underthe law, freedom to give the property to whomsoever he likes.Once it is established that the Testator was free andhad sound disposing mind, it is no longer the duty of theCourt to go further to inject its own ethics of what is or isnot moral or fair disposition, according to the Court's own https://hcservices.ecourts.gov.in/hcservices/ standards.The uneven distribution of assets among children byitself cannot be taken as a suspicious circumstance. In suchan event, the standard of scrutiny has to be different thanin the ordinary cases more so when no reasons are given forsuch disposition."The above propositions stare directly on the defendants.44. In the light of the decisions cited supra and in view of thediscussions made in the foregoing paragraphs, we are of theconsidered view that the appeal has to be allowed and the same isallowed. The judgment and decree of the learned single Judge has tobe set aside and accordingly set aside. The suit is decreed asprayed for. No costs.Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarmfTo.The Sub.Asst.Registrar,Original Side, High Court, Madras.+ 3 CC to Mr.T.N.Unni Nambiar,Advocate,SR.39512,39247+ 2 CC to Mr.S.Subramanian,Advocate,SR.39246OSA No.185 of 2001BV(CO)EM/26.8.09