Premavathi v. Sundararajan

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 29.06.2009Coram :THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIANandTHE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJAOriginal Side Appeal No.387 of 20011. Premavathi2. Rajeswari3. Maheswari4. MallikaAppellants/Plaintiffs 2 to 5v.1. Sundararajan2. Srinivasan3. PadmanabhanRespondents/Defendants 2 to 4Original Side Appeal filed under Order XXXVI Rule 1 of theOriginal Side Rules, 1956 read with Clause 15 of the LettersPatent against the judgment and decree of a learned single Judgeof this Court dated 22.03.2001 made in TOS No.11 of 1987.For appellants:Mr.AR.L.Sundaresan,Senior Counsel, forMs.AL.GandhimathiFor respondents:Mr.T.V.Ramanujam,Senior counsel, forMr.T.V.KrishnamachariJUDGMENTK.RAVIRAJA PANDIAN, J.O.P. No.226 of 1985 filed for issuance of letters ofadministration of the Will of the testatrix - Kakkammal has beenconverted into Testamentary Original Suit and numbered as TOSNo.11 of 1987, as the husband of the testatrix questioned thegenuineness, execution and attestation of the will. The will hasbeen marked as Ex.P.1. The plaintiff Boopathy Ammal sincedeceased, who was the daughter of the testatrix, was the solelegatee under the will. Plaintiffs 2 to 5 are daughters of thedeceased Boopathy Ammal, the legatee under the will. The 5thplaintiff Mallika – one of the daughters of the legattee gotmarried to Balram Reddy, one of the two brothers of Boopathy https://hcservices.ecourts.gov.in/hcservices/ Ammal, but issueless. The other brother was Booloka Reddy. Boththe brothers predeceased Boopathy Ammal. Defendants 2 to 4 arethe legal representatives of Boologa Reddy. The first defendantwas the husband of the testatrix, who died pending suit. In thesuit, Boopathy Ammal was examined on commission as P.W.1. P.W.2is one of the five attestors of the Will. P.W.3 is the scribe.One Jagannathan, the Village Nattamai was examined as D.W.1 on theside of the defendants. The learned single Judge, after takinginto consideration the evidence made available – both oral anddocumentary, dismissed the testamentary suit on the premise thatthe testatrix Kakkammal has not affixed her thumb impression onEx.P.1 in a sound and disposing state of mind; execution andattestation of the will have not been satisfactorily proved; andthe sole beneficiary of the will had taken a prominent role in thepreparation, execution and attestation of the will; and there wereso many suspicious circumstances surrounding the execution andattestation of the document. The correctness of the same iscanvassed in this appeal.2. The judgment of the learned single Judge is questionedon the ground that none of the defendants entered into the box andgave evidence. The mere fact that the testatrix died after fourdays after the execution of the will, per se, cannot be a reasonto conclude that she lost her consciousness and she was mentallyimbalanced during the relevant time. The very purpose ofexecution of the will is to change the line of succession, whichhas been magnified unduly without considering the cogent evidencegiven for bringing in such a change in the line of succession.The natural evidence of the parties, who deposed on behalf of theplaintiffs clearly exhibit the intention of the testatrix. Merelybecause the witnesses were brought from outside the village, itcannot be a reason to eschew or find fault with the evidence ofthe witnesses. One of the attesting witnesses has been examinedand that is enough in law to prove the execution of the will. Insupport of the contention, several judgment were relied on. 3. The above said contention was countered by therespondent by contending that the witnesses and the scribe are allfrom other villages. The evidence of P.Ws.1 and 2 arecontradictory with each other as to the execution and attestationof the will. There is absolutely no evidence whatsoever to showthat on the date of execution of the will, the testatrix was in asound and disposing state of mind. It is an admitted fact thatthe testatrix and her husband were living cordially under the sameroof. When that being the position, it is highly impossible foran illiterate and rustic village woman to dictate the contents ofthe Will to bequeath the property in favour of her daughter withsound disposing state of mind. The propounder and her husbandhave taken an active part in the execution and attestation of thewill, which per se exhibited that the will was not written withfree will and volition of the testatrix. In support of hiscontention, the counsel relied on number of judgments. https://hcservices.ecourts.gov.in/hcservices/

4. We heard the argument and perused the materials onrecord.5. In the case of present nature, the line ofjudgments of the Apex Court say in one voice that the onus ofproving the Will is on the propounder. In the absence ofsuspicious circumstances surrounding the execution of the Will,proof of testamentary capacity and the signature of the testatoras required by law is sufficient to discharge the onus. Wherehowever there are suspicious circumstances, the onus is on thepropounder to explain them to the satisfaction of the court forthe court to accept the Will as genuine. Even where circumstancesgive rise to doubts, it is for the propounder to satisfy theconscience of the court. There must be real, germane and validsuspicious features and not fantasy of doubting mind. 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. 6. The legal requirement in terms of sections 63 of theIndian Succession Act, 1925 and 68 of the Indian Evidence Act,1872 is now well settled. A Will like any other document is to beproved in terms of the provisions of the Indian Succession Act andIndian Evidence Act. The testamentary capacity of the propoundermust be established. The execution of the Will by the testatorhas to be proved. Atleast, one attesting witness is required tobe examined for the purpose of proving the execution of the Will.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 understoodthe nature 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 presenceor in the presence of each other. The deprivation of due share bythe natural heirs by itself is not a factor, which would lead tothe conclusion that there existed suspicious circumstances. Butthe background of the facts would tilt to the balance otherwise.When a will is prepared and executed under circumstances whichraise the suspicion of the Court, it lies on the propounders notmerely to prove the execution of the will, in the sense that itwas signed by the testator, but also to adduce evidence whichremoves such suspicion and to satisfy the Court that the testator https://hcservices.ecourts.gov.in/hcservices/ knew and approved of the contents of the Will, vide Sadachi Ammalv. Rajathi Ammal, AIR 1940 Mad 315, Indu Bala Bose v. ManindraChandra Bose, (1982) 1 SCC 20), Guro (Smt) v. Atma Singh, (1992) 2SCC 507, S. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC443, Rani Purnima Devi v. Kumar Khagendra Narayan Dev, AIR 1962 SC567, Savithri v. Karthyayani Amma, (2007) 11 SCC 621), JaswantKaur v. Amrit Kaur, (1977) 1 SCC 369. Ramabai Padmakar Patil v.Rukminibai Vishnu Vekhande, (2003) 8 SCC 537, P.P.K.GopalanNambiar V. P.P.K.Balakrishnan Nambiar, AIR 1955 SC 1852,Pushpavathi V. Chandraraja Kadamba, AIR 1972 SC 2492, RabindraNath Mukherjee v. Panchanan Banerjee, AIR 1995(4) SCC 459 andDaulat Ram v. Sodha,(2005) 1 SCC 40.7 . Having in mind the above settled legal proposition, letus proceed to consider the evidence available on record.8. On the reading of the evidence of P.Ws1 to 3, we are ofthe view that their evidence is not supporting each other. Thereare several suspicious circumstances. The testatrix was ill andtaken to a doctor at Madhuranthakam in a car for treatment on18.1.1985 in the evening. The next day i.e., on 18.1.1985 the Willwas executed from 2.30 to 4.00 p.m. She died on 22.1.1985 i.e.,within three days. P.W.1 deposed that on 19.1.1985 the Will wassought to be registered, but not registered, as the registeringauthority directed them to come on some other day, as it was lateby 4.30 on that day. If the testatrix was in a sound disposingstate of mind, nothing would have prevented the appellant to gotthe Will registered on the next day or any other subsequent daysbefore her death. 9. As stated in the summation of facts, there were two sonsto the testatrix. One of the daughters of the beneficiary –plaintiff got married to one of the two sons of the allegedexecutrix and the husband was predeceased issueless. Thereby thedaughter of the plaintiff is benefited by the Will. However, theother son had died leaving behind three minor children, who weretotally excluded from inheriting the property because of the Will.This is also one of the suspicious circumstance, which has notbeen cleared either by the evidence of P.W.1, P.W.2 or P.W.3. Ofcourse, changing the line of succession per se cannot be reason tovitiate the Will in the absence of any suspicious circumstances.But in this case, there are several suspicious circumstancessurrounding the execution, attestation of the Will and as to thesound disposing state of mind of the testatrix. The alleged Willis said to have been executed by five witnesses. All the fivewitnesses are brought from other and different villages. None ofthe witnesses were from the same village of the appellant. Thereis also no acceptable reason given by any of the witnessessupporting the execution of the Will as to why all the attestingwitnesses including the scribe are all brought from outside thevillage of Devanur in which the testatrix and her husband areliving. It is the evidence of P.W.1 that the testatrix – https://hcservices.ecourts.gov.in/hcservices/ Kakkammal sent a particular person to get the attesting witnessesfrom other villages, but she was not able to say who was thatperson through whom the attesting witnesses were brought to theplace of execution of the Will. So is the evidence of P.W.2 aboutthe person through whom the attesting witnesses were stated to beprocured.10. It is also available in the evidence of P.W.2 that thehusband of the testatrix was present at the time of execution ofthe Will, but no reason, what so ever, has been given as to why hewas not asked to sign as attesting witness. Further, it also cameout from the evidence of P.Ws.1 and 2 that one Kabirdas Reddiarwas also present at the time of execution of the Will. The saidKabirdas Reddiar is none other than the son-in-law of thetestatrix. Being a family member, he would have been atleast oneamong several attesting witnesses. Quite contrary to the evidenceof P.W.1 about the availability of her husband Kabirdas Reddiar,P.W.3 – the scribe had spoken that Kabirdas Reddiar was notpresent. P.W.2 – Venkatesan, who was the sole attesting witnessexamined, cannot be regarded as an independent witness, as headmitted that he had been assisting P.W.1 in the conduct of thecase and P.W.1 – the beneficiary under the Will is the mother-in-law of P.W.2. P.W.1 in her evidence has stated that the Will waswritten in Cheyyur. But P.W.2 says that the Will was written inDevanur village. Further, it is the evidence of P.W.1 that no onehas come from Pachayambakkam for the execution of the Will. Butcontrary to that, P.W.3 – the scribe is the resident ofPachayambakkam. 11. The Will says that the first defendant – husband of thetestatrix was not taking care of the testatrix. But there is noevidence to that effect either from P.W.1 or P.W.2. But it isadmitted in evidence of P.Ws 1 and 2 that the testatrix was livingwith her husband – first defendant till her last breath. Further,it is stated in the Will that the plaintiff – P.W.1 was takingcare of the testatrix for the past 20 years. But the evidence ofP.W.1 is that she lived with her husband for 1 ½ years aftermarriage. Thereafter she along with her husband came settled downand living for more than 20 years along with her father andmother. Thus the entire family of the plaintiff was taken care ofby the mother - the testatrix and the father the defendant.Neither the contents of the Will nor the evidence the plaintiffhas established that there was some misunderstanding or quarrelbetween the testatrix and her husband and the first plaintiff –sole beneficiary alone was taking care of the testatrix for a longperiod of time by spending her own money. On the contrary, here isa case in which admittedly the sole beneficiary was living alongwith the father and mother for nearly 20 years even after themarriage. 12. The evidence of P.W.2 is also very evasive as to theperson who informed him to go to the house of Kakkammal to Devanur https://hcservices.ecourts.gov.in/hcservices/ village for attesting the Will. Further, it was his evidence thatat the time of execution of the Will, the testatrix – Kakkammaland her husband were very much present and they have taken part inthe execution of the Will. P.W.2 says that five witnesses attestedthe Will as directed by Kabirdas Reddiar – the husband ofplaintiff NO.1 – the beneficiary. Thus the beneficiary and herhusband have taken an active role in the alleged execution andattestation of the Will and this is also one of the unexplainedstrong suspicious circumstance. It is evident from the availableevidence that the beneficiary and her husband took the testatrix –Kakkammal in a car to the Sub-Registrar's Office for getting theWill registered. They have actively taken part in the execution ofthe alleged Will and its attestation, which suspicion is notcleared with sufficient reasoning. 13. The testatrix was an illiterate lady. She did not knowto read and write. It is the evidence of P.Ws.1 and 2 that thetestatrix dictated the recitals and the scribe wrote the Will. Butin another place, P.W.2 says that Kakkammal gave the particularsand the scribe wrote the format of the Will. In respect of R.C.No.of the tractor, one of the propertis in the Will, there isdiscrepancy in the evidence of the witnesses. P.W.2 stated thatthe registration number of the tractor was not given by Kakkammal.The scribe noted the Registration Number from the vehicle itself.However, P.W.3 – the scribe says that the RC Book of the tractorwas given by the grand daughter of Kakkammal and the RegistrationNumber was noted from the R.C.Book. Likewise, in respect of theparticulars about the property at T.Nagar also, there arecontradicting evidences as to who gave the details of surveynumber. As per P.W.3, the document was sent through Rajeswari.However, it is the evidence of P.w.1 that these particulars weregiven by the testatrix herself without referring to any documentand no one else. 14. From the evidence of P.W.1, it is clear that she hastaken an active part in the execution and attestation of the Will.Being a beneficiary, she has to explain to the satisfaction of theCourt for such association, which is totally absent in this case.Regarding the health condition of the testatrix, it was anadmitted case that she was having blood pressure and sugar and itis also on evidence that on the night of the previous day to theexecution of the Will i.e., on 18.1.1985, she was taken in a carfrom Devanur village to Madhurantham to a Doctor. The mental andsound disposing state of mind condition of the testatrix has notbeen established in the given set of facts. When the Will wasattested by more than five persons, all from out of the village ofDevanur, though legal requirement is atleast one witness has to beexamined, the plaintiff would have examined atleast few moreattesters so as to clear out the cloud. Apart from that, noindependent witness was examined to prove the execution andattestation of Ex.P.1 Will. Not only the attestation has not beenproved but also the animus to attest the Will has not been proved. https://hcservices.ecourts.gov.in/hcservices/

15. It is the evidence of P.W.3 that Venkatesan – P.W.2obtained the signature of attesting witnesses of Ex.P.1 and thathe made a request to all the attesting witnesses to attest theWill. It is the further evidence of P.W.3 that Venkatesan heldKakkammal's thumb and impressed it on the stamp pad which wasalready there and affixed them in Ex.P.1. However, P.W.2 hasdeposed to the effect that Kakkammal affixed her thumb impression.P.W.2 says that all the five attesting witnesses signed Ex.P.1Will with their respective pens. However, on a perusal of the Willit is clear that all the signatures including the contents of theWill and the signature of the scribe were all written with one andthe same pen. Regarding the time of execution of the Will, P.W.2says that the Will was executed at 4.00 p.m. P.W.3 says that itwas started by 3.30 and completed by 4.30 p.m. P.W.3 says thateven the execution was over by 2.30 p.m. The non-examination ofthe defendants was put forth by the appellant. The first defendantdied pending suit. The other defendants are legal representatives.They cannot speak about the execution or otherwise of the allegedWill as they were not aware of the facts. However, the villageNattamai, who is a respectable person in the village, acontemporary of the testatrix and her husband spoken that both thetestatrix and her husband intended to give the properties to alltheir heirs. 16. In the above said background, this Court is not ableto accept the case of the plaintiff that an illiterate villagewoman, who was sick and taken to Doctor during the relevant periodhas voluntarily and willingly procured the witnesses including thescribe, all from other village and dictated to the scribe withaccurate details of the property to write the Will Ex.P.1. 17. With the available material evidence, we are not ableto take a different view than the one taken by the learned singleJudge. For all these reasons, the appeal is dismissed. However,there is no order as to costs. mf/uskSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ToThe Sub Assistant Registrar,Original Side,High Court, Madras 104.+ 1 cc to Mr. Ms. A. L. Ganthimathi, Advocate, SR No.27069+ 1 cc to Mr. T. V. Krishnamachari, Advocate, SR No.27008SSN(CO)SR/13.7.2009Judgment inO.S.A.No.387 of 2001