C.Ananda Sundaraman v. C.Thirupurasundari

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 02.07.2008 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE R.SUBBIAHO.S.A.NO.400 OF 2001C.Ananda Sundaraman.. AppellantVs.C.Thirupurasundari.. Respondent This O.S.A. has been preferred under Clause 15 of Letters Patentread with Order XXXVI Rule 1 O.S. Rules against the judgment anddecree made in T.O.S.No.6 of 1994, dated 15.12.1999. For Appellant : Mr.R.ThiagarajanFor Respondent : Mr.T.Viswanatha RaoJUDGMENT(The judgment of the Court was made by M.CHOCKALINGAM, J.)Challenge is made to the judgment of the learned Single Judge ofthis Court made in T.O.S.No.6 of 1994, whereby Letters ofAdministration, on request of the respondent herein, was granted.2.The respondent herein originally made an application andsubsequently, it was converted to the suit. The allegations, withwhich the respondent has sought the relief can be stated thus:The plaintiff in the suit and the defendant therein are thechildren of one G.Vasantha Devi. She died on 10.11.1992 at London,where she was staying on a temporary visit. She executed her lastWill and testament at Madras on 06.10.1988 in the presence of twowitnesses, namely D.Narasimhan and N.Gopalan. The testatrix leftbehind her except the plaintiff, her son C.Ananda Sundararaman, whois shown as defendant. She had not appointed any executor. Therearose a necessity for initiating proceedings for getting Letters ofAdministration. 3.On appearance, the appellant/defendant contested the suit, https://hcservices.ecourts.gov.in/hcservices/ inter-alia, stating that his mother Vasantha Devi had no right in theproperty and hence she could not execute the Will, since theproperties belong to the joint family; that she was not in a soundand disposing state of mind, since her health during the relevanttime was not in good condition; that she was always under theinfluence of the plaintiff; that the said Will, in respect of whichLetters of Administration was sought for, was a fabricated document;that the execution of the Will was specifically denied along with thetruth, validity and genuineness; that both the attesting witnessesare the persons obligatory of the plaintiff; that the plaintiff hasobtained his signature in the blank papers by exercising fraud andhad converted it as the consent affidavit and that actually, thedefendant was the owner of the property, in question and hence therequest of the plaintiff was to be rejected and the suit was to bedismissed. 4.On the above pleadings, 5 issues were framed. Both sides weregiven an opportunity to adduce oral and documentary evidence. Afterhearing the submissions made and also considering the materialsplaced, the learned Single Judge has decreed the suit, grantingLetters of Administration, as asked for and hence this appeal hasarisen at the instance of the defendant.5.The points that arise for determination in this appeal are asfollows:a)Whether the Will, dated 06.10.1988 prepared by thetestatrix is true and valid, as contended by the plaintiffor whether this is the fraudulent document, as contended bythe appellant/defendant?b)Whether the document has come into existence byexercising undue influence?6.Advancing arguments, the learned counsel for the appellant,inter-alia, would submit that the property originally belonged to thefather of both the parties; that he executed a settlement deed in theyear 1969; that a reading of the settlement deed would clearlyindicate that after the life time of Vasantha Devi, it should reachon his children; that a perusal of the Will would clearly indicatethat not only the appellant/defendant, the only son, wasdisinherited, but also the grand children; that this is the strongsuspicious circumstance; that it was the appellant, who was lookingafter his mother, since the plaintiff was employed in the Embassy atEngland; that without the knowledge of the appellant, the Will hasbeen brought about; that the propounder has exercised undue influenceand has also committed fraud on the testatrix; that the respondent isonly beneficiary under the impugned document; that though thetestatrix is the wife of an Advocate, she was not capable of writingher own Will; that the discrepancies found in the evidence of thewitnesses, in particular the attesting witness and also P.W.3,A.Venkatesan, a practising Advocate, who is related to the family,would clearly indicate that the testament could not have come intoexistence as put forth by the respondent's side; that for the https://hcservices.ecourts.gov.in/hcservices/ exclusion of the only son and the grand children, no reasons areadduced by the testatrix in the testament; and that it itself wouldindicative of the fact that the document was brought about byexercising fraud over the aged testatrix. 7.Added further the learned counsel that according to P.W.3,Advocate Venkatesan, she was consulting on the previous day and onlyon next day, the Will was written by her; that if to be so, all thedetails as to the family circumstances and about the children shouldhave been made known and further, an advice would have come from theAdvocate as to the necessity for telling the reasons for excludingthe appellant and also the grand children, but no whisper is found;that regarding the preparation of the Will, one attesting witness,P.W.2, the Stenographer attached to the office of the Advocate wasexamined; that the evidence of the Advocate would clearly indicatethat the Will could not have come into existence as put forth bythem; that the testament is the holograph; that it cannot be saidthat it has come into existence as put forth by the respondent'sside; that the case of the respondent is that the appellant wascarrying on wayward life and under these circumstances, there arose anecessity for making bequest that too in favour of the respondentexcluding all in the family; that in the absence of any evidence tothat effect, the same should have been rejected by the learned SingleJudge; that it is pertinent to point out that according to theevidence of P.W.3, the testatrix expressed her desire to create aWill in favour of her daughter, since she was not married; that onthe contrary, from the evidence of P.W.1, the propounder, it would bequite clear that she was married and thus, the factum of marriage ofthe propounder was not made known and it would be quite clear thatsuppressing those facts, even though the propounder was in London,she has exercised influence over her mother to execute such adocument and for that purpose, the witness, namely the Advocate, whowas the close relative and also the other two attesting witnesses,who were depending upon her, were used.8.Added further the learned counsel that it is needless to saythat when suspicious circumstances are shrouded and attendant overthe testament, a duty is cast upon the propounder to expel the sameto the satisfaction of the Court; that in the instant case,suspicious circumstances were many, but no one circumstance wasexplained or expelled by the propounder; that apart from that therewas evidence to show that the testatrix had a stroke in the year1988, just prior to the alleged execution of the Will, dated06.10.1988 and thus, she was also not in good, sound and disposingstate of mind and that was also taken advantage by the propounder.All would go to show that the Will has not come into existence as putforth by the respondent and the Will also remained unproved as oneexpected in law. All these aspects of the matter have not been goneinto by the learned Single Judge and hence the judgment of thelearned Single Judge has got to be set aside and the suit has got tobe dismissed, by allowing this appeal. In support of his contentions,the learned counsel for the appellant has relied on the judgment ofthe Supreme Court reported in 2007-2-L.W.870 (B.VENKATAMUNI VS.C.J.AYODHYA RAM SINGH AND OTHERS) and also the judgment of this Court https://hcservices.ecourts.gov.in/hcservices/ reported in 1999 MLJ 634 (THANKAM ALIAS KARTHIYANI VS. C.MADHAVANAND ANOTHER).9.Heard the learned counsel for the respondent on the abovecontentions. In short, he would submit that the Will in question wasthe holograph one; that the propounder examined herself as P.W.1;that the one attesting witness and one Venkatesan, the practisingAdvocate, who was related to the family, were examined; that nomotive is attributed to him; that apart from that, during therelevant period, the propounder was actually in England and she alsocame to India after a month; that she was informed about the Will;that it is true, the testatrix has excluded her son, the appellantherein and also the grand children; that merely because of exclusionof the natural heirs, it cannot be stated that the testament wasshrouded with suspicious circumstances; that number of letters wereaddressed by the testatrix to the respondent/plaintiff while she wasin London, which were marked as Exs.P.14, 15 and 16; and that allwould go to show that the appellant was carrying on wayward life andthe testatrix was thoroughly vexed. 10.The learned counsel for the respondent would further submitthat from the evidence it would be quite clear that she was orthodoxBrahmin lady and against her wish, he married a lady from a differentcommunity; that it is true, no reasons are stated in the testament asto why the appellant, the only son and also the grand children wereexcluded; that there is explanation given by P.W.3; that according tohim, it was he, who advised her not to use harsh words in thetestament, since it would reflect about the family affairs andhence, for all these reasons, it was not done so; that theinconsistencies brought forth by the learned counsel for theappellant in the evidence of the attesting witness and P.W.3Venkatesan, the Advocate, were all minor discrepancies; that itshould not be forgotten that the Will came to be executed in the year1988 and they were all examined in Court after a period of 13 yearsand hence these minor discrepancies were bound to happen, but thoseminor discrepancies could never be taken as suspicious circumstances;that the appellant had no explanation to offer that on service ofnotice, he has actually filed the consent affidavit, which was markedas Ex.P.17 and the Advocate, who has actually attested the same, hasalso been examined as P.W.4. P.W.4 has categorically spoken to thefact that after understanding the contents found in the document, thesame was signed by the appellant and it was attested by P.W.4; thatthe appellant came with the false allegations that his signature wasobtained in the blank paper and thereafter, it was converted asconsent affidavit; that having given the consent affidavit, now hehas come forward with the false defence as stated above. 11.The learned counsel would further add that in order to callthe Will that it was tainted with invalidating factors, it should bespecifically pleaded and proved that the plaintiff had exercisedundue influence over her mother; that not even undue influence isstated thereon and thus, the Will was actually proved and hence thelearned Single Judge has considered the evidence proper and has cometo the correct conclusion and hence the judgment of the learned https://hcservices.ecourts.gov.in/hcservices/ Single Judge has got to be sustained. In support of his contention,he has relied on the following judgments of the Supreme Court:1)AIR 1964 SC 529 (SHASHI KUMAR VS. SUBODH KUMARBANERJEE).2)1996-2-L.W. 353 (MRS. JOYCE PRIMROSE PRESTOR (VEEVAS) VS. MISS VERA MARIE VAS & ORS.)3)2008-1-L.W. 255 (SAVITHRI & OTHERS VS. KARTHYAYANIAMMA & OTHERS)12.The Court has paid its anxious consideration on thesubmissions made on either side and also looked into the materialsavailable.13.The respondent/plaintiff sought for Letters of Administrationin respect of Ex.P.13, the Will, dated 06.10.1988, alleging that itwas the last Will and testament of her mother. Thedefendant/appellant came out with the defence plea that the testatrixhad no right over the property to make bequest; that the testatrixwas not in good and disposing state of mind at the time of executionof the Will; that the document has been brought forth by exercisingundue influence by the respondent/plaintiff on the testatrix andthere are number of suspicious circumstances attendant over thedocument. 14.In order to establish the proper execution and attestation ofthe document, the propounder has examined herself as P.W.1 and shehas produced the Will. The propounder has examined P.W.2, one of theattesting witnesses, while the other attesting witness could not havebeen examined due to the reasons adduced. P.W.3 was the practisingAdvocate, who was related to both the parties. At the outset, theCourt has to point out that the Court of testamentary jurisdiction isnot the court of suspicion, but the Court of conscience. If anycircumstance is viewed with suspicion, it may look like a suspiciouscircumstance. In the instant case, the learned counsel for theappellant took the Court to the evidence of P.Ws.2 and 3 and pointedout the discrepancies found therein. But, after analysing theevidence, the court is of the considered opinion that thosecircumstance cannot be termed as suspicious circumstance at all. Itis a well settled law that in a given case where the testament isbrought forth for probate or Letters of Administration, the initialonus is on the propounder to prove the true execution and attestationof the document and if any suspicious circumstance is brought forthto the notice of the court by the objector, it is available for thepropounder to expel those circumstances. 15.In the instant case, P.W.1 is the daughter of the testatrixand also the sister of the appellant/defendant. The testament inquestion was executed on 06.10.1988. During the relevant period, shewas working in the Indian Embassy at London and it is also anadmitted position. Hence during the relevant period, she was neitherin India nor by the side of her mother testatrix to prevail over her.As per the evidence of D.W.1, the defendant, she came to India aftera month and she came to know about the document only from her mother. https://hcservices.ecourts.gov.in/hcservices/ It would be more appropriate to reproduce that part of evidence ofthe defendant, which reads as follows:"Within 10 days after executing a Will on 6.10.1988 mymother left for London. It is true that my sister visitedIndia in November 1988 and along with her mother left forLondon that might be about 25 days after the execution ofthe Will. At the time of executing the Will myself and mymother were in Madras, while my sister was in London.Ex.P.13 is my mother's Will. My mother's signature is foundtherein and it is a registered Will."A reading of that part of the evidence in cross-examination of D.W.1,the defendant, would clearly indicate that he had a clear knowledgeof the Will in question. Therefore, he could not be allowed to pleadthat he had no knowledge. During trial, Ex.P.17, the consentaffidavit of the defendant was filed. Ex.P.17 is the consentaffidavit given by the appellant/defendant. When the contents arelooked into, it not only speaks about the knowledge of the appellantas to the testament, but also he expressed his consent therefor. Theflimsy explanation, which is thoroughly unsustainable, was sought tobe made in the averment in the written statement that playing fraudon him, the plaintiff had obtained signature in the blank papers andit was converted as the consent affidavit. This part of the avermentmade in the written statement was not spoken by the defendant in thebox. However, the plaintiff has examined P.W.4, the practisingAdvocate, to the effect that it was he who attested Ex.P.17, theconsent affidavit and after knowing the contents only, the affidavitwas sworn in by the defendant and thus, it would be quite clear thatoriginally, he has signed and has given the consent affidavit. Forthe reasons known to him, he made an attempt to withdraw the same,but in vain. 16.From the evidence of P.W.3, it would be quite clear that hewas the practising Advocate and he was related to both the parties. Aday prior to the date of execution of the testament, it was thetestatrix who came to his Chamber and consulted the modalities forexecuting the Will. The next day, she came to his chamber andprepared the Will by handwriting, which is marked as Ex.P13. Thispart of the evidence stood fully corroborated by the evidence ofP.W.2, the attesting witness, who happened to be the Stenographer ofP.W.3 in his office. At this juncture, it is pertinent to point outthat P.W.2, the only attesting witness examined, not only has spokento the fact as to how discussion had taken place between P.W.3 andthe testatrix on the previous day, but also as to how it was writtenby her on the next day. He would further add that the Will waswritten at about 12.45 hours in the chamber of P.W.3 and thereafter,the testatrix along with two attesting witnesses and P.W.3 went tothe Sub Registrar's office, where the document was attested by themin her presence and thus, the execution and attestation have takenplace and the same was also registered, during which they identifiedthe testatrix. Even the scrutiny of the evidence does not whisper orpoint out any suspicious circumstance, which can be called assuspicious circumstance. https://hcservices.ecourts.gov.in/hcservices/

17.The strong circumstance, in the instant case, in favour of thepropounder is that the testament is in holograph. At this juncture,the decision of the Apex Court reported in JT 1996 (4) SC 333(MRS.JOYCE PRIMROSE PRESTOR VS. MISS VERA MARIE VAS) has got fullapplication to the present facts of the case, where the Apex Courthad an occasion to consider the presumption which has got to bedrawn, which reads as follows:"12.While the presumption in the case of ordinary Willsis as stated above, in the case of 'holograph Wills', thepresumption is all the more a greater presumption. Ex.P-1 isa 'holograph Will'. It is one which is wholly in the handwriting of the Testator. The Calcutta High Court in AjitChandra Majumdar Vs. Akhil Chandra Majumdar (AIR 1960 Cal.551 at P.552) stated about such a Will, thus:-"The whole of this Will was written in the hand by thetestator himself in English. The hand writing is clear andfirm. The law makes a great presumption in favour of thegenuineness of a holograph will or the very good reason thatthe mind of the Testator in physically writing out his ownWill is more apparent in a holograph Will than where hissignature alone appears to either a typed script or to ascript written by somebody else" (Emphasis supplied)."The writing of the Will and signature of the testatorare admitted. There is also due and proper attestation inaccordance with the relevant statutory provisions. Nosuspicious circumstance appears on the face of the document,Ex.P-1. The Will appears to be moderate and rational. Viewedfrom the above angle, there is a great presumption evenbordering on actual proof of the due execution andattestation of the Will".Thus, in the instant case, it was actually one holograph Will andhence the presumption is all the more a greater presumption, whichshould be drawn. 18.The next contention is that during the relevant period, shehad stroke and she was not in good condition and also she was not ingood and sound disposing state of mind and hence the Will could nothave come into existence. This contention has got to bediscountenanced for two reasons that according to the defendant, shehad stroke in the year 1988, but the Will was executed on 6.10.1988and even her health condition might be a reason for executing theWill. Apart from that admittedly, testatrix died on 10.11.1992 andthat she had lived for nearly about 4 years after the execution ofthe Will. From the evidence of the defendant, as pointed out above,he had a clear knowledge of executing the Will and had he got anyobjection, he would have raised or murmured in these 4 years, but hehad not done so. Thus, coupled with the fact that he has givenconsent affidavit, the objections now raised and also now put forthby way of defence plea were actually unfounded to his knowledge. https://hcservices.ecourts.gov.in/hcservices/

19.The next contention was that the testatrix was under undueinfluence of the plaintiff. As pointed out earlier, during therelevant time, the propounder/the plaintiff was actually in Londonand after a month, she has come over here. The mere statement whatwas found in the written statement is the word "influence".Therefore, the influence by itself cannot be taken as undueinfluence. The undue influence can be in law an invalidating factor.But in the instant case, even the undue influence is not actuallypleaded. Further, for that undue influence, there is no evidenceavailable. Under these circumstances, the contention that theplaintiff actually exercised undue influence over her mother, has gotto be rejected. 20.All would go to show that the plaintiff has proved the Will byexamining herself as P.W.1 and also one attesting witness, since theother attesting witness could not be secured for examination in Courtand also an Advocate, who is related to their family and who wasconsulted during the relevant time. Thus, the plaintiff has provedthe truth, genuineness, execution and attestation of the Will andhence it has got to be upheld. Under these circumstances, thecircumstances brought to the notice of the court, though attractiveand looked as suspicious circumstances, in the considered opinion ofthe Court, cannot be termed as suspicious circumstances and hence thelearned Single Judge has marshalled the evidence proper, consideredthem and made a reasoned judgment, which in the opinion of the Courtdoes not require for any interference. Accordingly, this O.S.A. isdismissed. No costs.21.The learned counsel for the appellant would submit that theappellant is actually residing in the property in question along with5 children and the wife and if proceedings are initiated to hand overthe possession, he will be driven to street and under thesecircumstances, he would file an undertaking affidavit to vacate theproperty in question and to hand over the possession to therespondent within a period of one year and for filing the undertakingaffidavit, he seeks one week time. Accordingly, one week time isgranted for filing an undertaking affidavit as stated by him and asrecorded above. Sd/Asst.Registrar/true copy/Sub Asst.Registrarvvk https://hcservices.ecourts.gov.in/hcservices/ ToThe Sub Assistant Registrar,Original Side,High Court,Madras 104.1 CC To Mr.R.Thiagarajan, Advocate, SR NO.34528.1 CC To Mr.T.Viswanatha Rao, Advocate, SR NO.34771.O.S.A.NO.400 OF 2001.bk(co)pmk/23.7.08.