Dismissed

K.Seshadri (Decd.) & 5 Others v. Dr.Mrs.Vasantha Balakrishnan

Madras HC5 Apr 2013TOS/11/2002

Case brief

AI extract

What is this about?

The court examined the genuineness of two 1984 wills disinheriting the daughter. Finding suspicious circumstances, lack of attesting witnesses, unexplained delays, and unattested alterations, the court held the wills were procured by fraud and undue influence, dismissing probate suits and awarding the daughter a one-third share.

What did the court decide?

Probate/Letters of Administration dismissed; Caveator granted 1/3rd share in immovable and movable properties and entitled to mesne profits.

K.Seshadri (Decd.) & 5 Others Vs Dr.Mrs.Vasantha… — Succession and Inheritance | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATE: 5.4.2013

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CORAM

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THE HONOURABLE MR.JUSTICE T. MATHIVANAN

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T.O.S.Nos.11 and 12 of 2002 and

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C.S.No.610 of 2003

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K. Seshadri (Since deceased) 2. Malathi Seshadri 3. Vijay Seshadri 4. Gayathri Rajkumar 5. Srividya Jaiganesh 6. Anil Seshadri ... Plaintiffs in T.O.S.Nos.11 and 12 of 2002 (Plaintiffs 2 to 6 are impleaded as legal representatives of deceased plaintiffs as per order, dated 22.7.2005 in A.No.2975 and 2976 of 2005).

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Versus 1. Dr. Mrs. Vasantha Balakrishnan 2. K. Gopal ..Defendants in T.O.S.Nos.11 and 12 of 2002 (The second defendant has been impleaded as per order, dated 26.6.2002 in A.No.2265 of 2002). Dr. Mrs. Vasantha Balakrishnan ..Plaintiff in C.S.No.610 of 2003 Vs. 1. K. Seshadri (Since deceased) 2. K.Gopal 3. Malathi Seshadri 4. Vijay Seshadri 5. Gayathri Rajkumar 6. Srividya Jaiganesh 7. Anil Seshadri ..Defendants in C.S.No.610 of 2003

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Prayer in TOSNos.11 and 12 of 2002: Petitions filed under

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Section 232 and 276 of the Indian Succession Act XXXIX of 1925 read with Order XXV Rule 4 of O.S. Rules to grant Letters of Administration with the Will annexed to the second plaintiff as one of the legatees of the Will, dated 3.2.1984 having effect throughout the State of Tamil Nadu.

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Prayer in C.S.No.610 of 2003: Suit is filed under Order IV Rule 1 read with XXIV Rule 1 of O.S. Rules and Order VII Rule 1 C.P.C. for partition and separate possession.

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For Plaintiffs in

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For Plaintiffs in C.S.No.610 of 2003 : Mr. R. Thiagarajan

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For First Defendant in T.O.S.Nos.11 and 12 of 2002 : Mr. R. Thiagrajan

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For Second Defendant in T.O.S.No.11 and 12 of 2002 : Mr. P.B. Balaji

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For First Defendant in C.S.No.610 of 2003 : Mr.V.K. Elango for Mr.T.V.Krishnamachari

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For Second Defendant in C.S.No.610 of 2003 : Mr.P.B. Balaji

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COMMON JUDGMENT

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The whole case is revolving around Ex.P3 and P4 viz., the original wills dated 03.02.1984 purported to have been executed by the father and mother of the plaintiff and the defendants 1 and 2 i.e., by Dr.K.G.Krishnasamy and his wife Mrs.Ramlakshmi

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Krishnasamy bequeathing the immovable property specified in the plaint A schedule in the testamentary suits in favour of the first plaintiff Mr.K.Seshadri and the second defendant K.Gopal disinheriting their only daughter, the first defendant, and she alone challenges the validity of the wills Exs.P3 and P4 (Exs. P1 and P2 are the xerox copies) dated 03.02.1984.

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When the question .... “Why this unfair disposition” is asked;

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We may infer that it inherently contains the answer.

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So the burden to subscribe the answer rests on the shoulder of the propounder of the wills. If the testator and testatrix alive, this question would not have arisen because the alleged wills would not have been brought in to existence as it would take effect only after their demise.

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With the propounder being the sole executor and one of the beneficiaries along with second defendant Mr.K.Gopal, the onus is on his part to answer this question.

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Unfortunately, he has passed away leaving behind his wife and children who have been impleaded as the plaintiffs 2 to 6 in the testamentary original suits.

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Normally they do not have the competency to speak about this question and probably the second defendant K.Gopal may be having the locus. But he did not put himself in the box to speak about this. Naturally an adverse inference is therefore to be drawn under Section 114(g) of the Indian Evidence Act 1872, in favour of the first defendant Dr.Vasantha Balakrishnan.

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PW 1 N.Subramanian is merely one of the attestors of the wills. He happended to be the relative of the testator. But he says that he did not know the

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testatrix. His oral evidence was recorded de bene esse through a commission at Hyderabad on 29.09.2001 when the Testamentary Original Suits were pending in O.P. stage. When the preponderance of inherent probabilities are available to presume that he is a chance witness, it cannot be heard to say that the wills can also be proved through an attester.

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The propounder of the wills is no more and his legal heirs do not have the legal competency to prove the wills as they can only speak about the facts relating to Mr.K.Sheshadri (since deceased). The second defendant Mr.K.Gopal being one of the brothers of the first defendant Dr.Vasantha Balakrishnan had kept himself away from entering in to the box.

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Under these circumstances, who is going to answer this question ?

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The original plaintiff Mr.K.Seshadri in his reply statement to the written statement filed by the first defendant Dr.Vasantha Balakrishnan in the testamentary original suits has stated that “the first defendant who is a Doctor by profession got married in the year 1997 on her own accord against the the wishes of the parents and from then onwards there was no love last between Dr.Vasantha Balakrishnan and her parents. According to the original plaintiff (deceased K.Seshadri) this is the reason for her disinheritance. But even to prove this factum he is not alive.

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With this

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background, if the question “Why this unfair disposition” goes unanswered can there be an inference in favour of the first defendant?

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Conspectus:-

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Mr.K.Sheshadri (since deceased) the original plaintiff and the defendants 1 and 2 viz., Dr.Vasantha Balakrishnan and Mr.K.Gopal are the sons and daughter of one Dr.K.G.Krishnaswamy and Mrs.Ramalakshmi Krishnaswamy. Dr.K.G.Krishnaswamy had predeceased his wife

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Mrs.Ramalakshmi Krishnaswamy i.e., on 16.03.1993. Mrs.Ramalakshmi Krishnaswamy had passed away on 09.02.1995. Both of them had executed their respective wills dated 03.02.1984 in favour of Mr.K.Seshadri (since

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deceased) and his brother K.Gopal (D2) bequeathing the immovable properties appointing their eldest son K.Seshadri as the sole executor. The wills dated 03.02.1984, are sought to be probated in TOS.No.11 and 12 of 2002 respectively.

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Originally Mr.K.Seshadri (since deceased) had filed the testamentary original petitions in O.P.No.505 and 506 of 2001 in form-55 under Order 25 Rule 4 of the Original side rules r/w. Sections 222 and 276 of the Indian Succession Act, before this court on 06.08.2001.

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The propounder of the wills Mr.K.Sheshadri had passed away on 21.06.2005 and on his demise his wife and four children were brought on record as the beneficiaries under the said wills. After their impleadment, both the original petitions were converted into Form-59 under Order 25 Rule 5 of the original side rules r/w. Sections 222 and 278 of the Indian Succession Act seeking the prayer of letters of administration with the wills annexed in lieu of probate.

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It is significant to note here that the wills dated 03.02.1984 purported to have been executed by the testator as well as the testatrix on 03.02.1984 revoking an earlier will said to have been executed by them in the year 1981.

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Admittedly, the wills dated 03.02.1984 are the

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subject matter of the suits. Since the above said wills dated 03.02.1984 are said to be the last wills and testament of Mrs.Ramalakshmi Krishnaswamy and Dr.K.G.Krishnaswamy respectively and they were attested, registered on the same date at the office of SubRegistrar, Mylapore. Admittedly, the above said wills speak only about the immovable properties and no mention is made about the jewelery, bank deposits or any other movables.

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The testator

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owns half of the land and the whole building of the suit property whereas the testatrix owns half of the land only. As it appear from the materials available on record the property is a self acquired property of the testator without any ancestral nucleus.

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As afore stated the

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first son viz.K.Sheshadri is the sole executor.

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Mr.K.Gopal who is the another son as well as the second defendant had filed his consent affidavit, for grant of probate in favour of his elder brother (executor). However, the first defendant Dr.Vasantha Balakrishnan being the only daughter of the testator and testatrix, had filed a caveat questioning the genuineness and validity of the wills mainly on the following four grounds among other grounds;

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Wills are vitiated by suspicious, fraudulent,

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and vitiating circumstances.

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They do not reflect the true volition and mind of Mrs.Ramalakshmi Krishnaswamy as well as Dr.K.G.Krishnaswamy.

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The wills are not genuine and uninfluenced mind of the deceased viz.,Mrs.Ramalakshmi Krishnaswamy as well as Dr.K.G.Krishnaswamy.

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The wills were procured by fraud, coercion and undue influence.

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On account of these reasons the original petitions in O.P.Nos.505 and 506 of 2001 were converted into testamentary original suits in TOS.Nos.11 and 12 of 2002. The first defendant Dr.Vasantha Balakrishnan being the only daughter of her parents has alleged that she has been disinherited totally in the said wills and no reason is assigned for doing so.

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The first defendant has challenged the said wills dated 03.02.1984, she has filed another suit in C.S.No.610 of 2003 claiming her 1/3^rd share in the property specified in the schedule therein. For these reasons the testamentary oroginal suits in TOS.No.11 and 12 of 2002 as well as the civil suit in C.S.No.610 of 2003 have been consolidated together and the evidence in

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common was recorded in TOS.No.11 and 12 of 2002 and in C.S.No.610 of 2003 and therefore it has become necessary

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for this court to dispose these suits in this common

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judgment.

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As aforestated Mrs.Ramalakshmi Krishnaswamy had passed away on 04.02.1995. She had executed the alleged will on 03.02.1984, and the testamentary original petition in O.P.No.505 of 2001 was filed on 06.08.2001 after a delay of six years.

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Dr.K.G.Krishnaswamy had passed away on 16.03.1993. He had also executed the alleged will on 03.02.1984, and testamentary original petition in O.P.No.506 of 2001 was filed on 06.08.2001 i.e., after a delay of eight long years.

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With regard to the delay the original plaintiff K.Sheshadri (since deceased) being the executor has stated that since he was working in a commercial organisation in shipping and used to go abroad frequently, he could not get any legal advise regarding the probate of the will.

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As per Clause 5(b) of the will dated 03.02.1984,

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said to have been executed by Mrs.Ramalakshmi Krishnaswamy and as per Clause 7(c) of the will dated 03.02.1984 purported to have been executed by Dr.K.G.Krishnaswamy, the second defendant if continues to

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be a bachelor during his life time, half share of the half right of the testator as well as the testatrix in the wills mentioned property respectively bequeathed in his favour shall be taken by the deceased plaintiff. But this contingency has now become obsolete as the second defendant has now got married. According to the deceased plaintiff, the second defendant is also entitled for a share in the will mentioned property.

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The second defendant Mr.K.Gopal as adumbrated supra has filed his consent affidavit for grant of probate in favour of the executor viz., the deceased plaintiff.

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On the other hand the first defendant

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Dr.Vasantha Balakrishnan has strenuously contested the testamentary original suits by filing her written statement wherein she has contended that their father Dr.K.G.Krishnaswamy was a leading Doctor in Chennai, and

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he had been practicing for many years occupying the highest post in General Hospital Chennai. The property

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in question covered under the will is worth more than Rs.70lakhs as it is situated in the heart of the city, but it has been under valued in the testamentary original suits as if the value of the property is at Rs.2,15,000/-

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She would contend further that the alleged

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wills dated 03.02.1984 would not have been executed by their parents excluding her from the inheritance of the house property. She has therefore challenged the wills dated 03.02.1984, stating that the wills could have been created by the deceased first plaintiff with the connivance of the second defendant purposely making their parents to sign the prepared documents without knowing the contents to the executants by practising fraud, coercion and undue influence. She has also claimed that she, being the one of the legal heirs of her parents, along with the deceased plaintiff and the second defendant is entitled to equal share i.e., 1/3^rd share in the immovable as well as the movables left by her parents.

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The deceased plaintiff was very much available in India, most of the times and the facts of the execution of the will is purposely suppressed by the plaintiff and the second defendant during the life time of their parents and in this connection she would contend that she came to know about the creation of the will only after receiving summons in USA in the OP proceedings in 2001. The delay of nearly six years and well as eight years in filing the probate proceedings is unjustifiable and in fact all these years, when ever she visited India, the plaintiff and the second defendant used to tell her that they are safeguarding her interest and her due share will be given in all the properties left by the parents

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both movable and immovable. But, instead of keeping up their assurances and promises they have totally mislead her all these years without taking any steps for division.

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She would contend further that her loving parents would not have executed the alleged wills in the manner excluding her from inheriting the properties and that she being the only daughter with whom they were very affection till their death she would not have been excluded by their parents as alleged by the first plaintiff.

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According to the first defendant, the wills have been brought out under suspicious circumstances and purported to have been executed by the testator in favour of the first plaintiff by practising fraud, coercion and undue influence totally against the wish of the parents excluding her without providing anything in the house property and other movables. It is also her contention that under the Hindu Law, she is entitled to 1/3^rd share in all the family property by way of inheritance and the first plaintiff had successfully carried out his evil plan, depriving her completely under the guise of two purported wills.

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The deceased first plaintiff has filed his reply statement to the written statement filed by the first

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defendant wherein he has stated that in so far as the value of the property is concerned a notice was already sent to the District Collector and appropriate additional stamp duty was collected inconsonance with the market value of the property. Therefore the allegations with regard to the under valuation is not correct.

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In his reply statement he has also stated that the propounded wills are having reference to the earlier registered wills dated 10.09.1981 which stood revoked in the present wills. He has particularly denied the allegations of fraud, coercion and undue influence, the wills were duly attested and registered and that the question of playing of fraud, coercion and undue influence would not arise for consideration.

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As stated hereinbefore, the first defendant has filed the suit in C.S.No.610 of 2003 as against the deceased first plaintiff and the second defendant as well, claiming her 1/3^rd share in the suit properties as described in schedule A and B therein. In her suit (C.S.No.610 of 2003) she has contended that at the time of death of their parents they have left both immovable and movable properties, costly jewellery, various house hold articles which are more fully set out in the schedule 'B' in which she is entitled to 1/3^rd share and similarly, the legal heirs of the deceased first plaintiff and the second defendant are also entitled to get equal shares in the properties.

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She has also

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stated that her parents were anxious that all the properties were to be shared by all their children equally and even after the death of their parents, the deceased first plaintiff and the second defendant were openly telling and assuring that she would be getting 1/3^rd share in all the properties left by their parents. But only there was some difference in the division of diamond jewels set out in the schedule 'B'.

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She has also

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claimed that it was decided by all the three legal heirs that all the movables, more fully set out in the “B” schedule, must be kept in safe custody by the first defendant as a co-sharer-cum-trustee for the benefit of first plaintiff and the first and second defendants as the co-sharer-cum-trustee until it was divided by all the three legal heirs.

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During the life time of their mother she had

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given specific instructions to all the three children that all the diamond jewels should be given to her (Dr.Vasantha Balakrishnan) as she being the only girl child and that the gold jewels and immovables should be divided equally by all the three children. As various items were in the safe custody of the deceased first plaintiff as a co-sharer as they were entrusted to him by her and the second defendant for safe custody after the demise of their parents and as such the deceased first

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plaintiff was holding them as a co-sharer for the benefit of all the co-sharers to be divided equally, out of implicit confidence reposed on him, as he being the elder brother and one of the co-sharers.

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The deceased first plaintiff as well as the second defendant have contested the suit by filing their respective written statements denying all the allegations leveled in the plaint (C.S.No.610 of 2003) and according to them the suit in C.S.No.610 of 2003 has been filed as a counter blast to the testamentary original suit in TOS.Nos.11 and 12 of 2002.

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With reference to the movables as stated in the plaint in the suit in C.S.No.610 of 2003 the deceased plaintiff and the second defendant have contended that as far as the movables are concerned, they have already been handed over to the second defendant during the life time of their parents and as such their parents did not possess any properties to be divided amongst the sharers.

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With reference to immovable properties, according to the deceased first plaintiff and the second defendant they were bequeathed by their parents under the wills dated 03.02.1984 in their favour and that the jewels and other movables were given to the second defendant during their life time.

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Besides this the deceased first plaintiff has also contended that on 03.02.1984, on which date the wills were executed by their parents, he was not at all available in Madras. Thus from 12.01.1984 to 26.02.1984 he was not available in India as well as in Madras, as he was working in a commercial organisation in shipping and marine be used to visit abroad regularly.

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Apart from this the second defendant in his written statement in C.S.No.610 of 2003 has stated that the first defendant (plaintiff in CS) was given some items in jewels by their father in his presence and when the father had asked him as to whether he could give some jewels to the first defendant, he (D2) had never objected and also never bothered what was being given to the first defendant Dr.Vasantha Balakrishnan because it was his parents who were giving to their own daughter. With regard to the jewels and silver items he has contended that he alone has been in absolute possession and enjoyment, in his own right and that they have all been transferred to the locker and he did not admit the list of articles furnished by the first defendant (plaintiff in C.S.No. 610 of 2003) in schedule B and he would state that whatever the items available with him were transferred to the lockers.

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As regards furniture in Schedule B, he (D2) has contended that some of the items were left behind him

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when he had left the house and some of the items which he was using were alone taken by him. In respect of other allegations made in the plaint by his sister he has strongly denied them as fake and incorrect.

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Based on the material preposition of fact as well as law arising out of the pleadings of parties to the suit the following issues have been formulated in the suits in TOS.No.11 and 12 of 2002. Since the issues formulated in both the suits appears to be similar in nature they are put together in common as under:-

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Whether the

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plaintiff and the second defendant got the will executed by their parents by practicing fraud, coercion and undueinfluence taking advantage of their old age?

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Whether the

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plaintiff is entitled to get the will probated in spite of the suit in C.S.No.610 of 2003 filed by the first defendant for partition of the suit property and immovables left by their parents ?

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On perusal of the pleadings and other materials available on record in respect of C.S.No.610 of 2003 which is filed by the first defendant for partition, the following issues have been formulated;

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Whether the suit for partition filed by the plaintiff is maintainable ?

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Whether the alleged will dated 03.02.1984 purported to have been executed by Dr.K.G.Krishnasamy is true genuine and valid ?

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Whether the alleged will dated 03.02.1984 purported to have been executed by Mrs.Ramalakshmi Krishnasamy is true genuine and valid ?

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Whether the

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plaintiff is entitled for mesne profit for the schedule property under Order 20 Rule 12 of CPC.

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Whether the plaintiff is entitled for the shares in the immovables left by her parents late Mrs.Ramalakshmi Krishnasamy and Dr.K.G Krishnasamy ?

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To what relief

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are the parties entitled ?

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In order to substantiate their respective cases the parties to the suit were directed to face the trial. One N,Subranmanian was examined on commission and his evidence was recorded de bene esse . One Malathi Seshadri who is none other than the wife of the deceased first plaintiff K.Seshadri was examined as PW 2. During the course of their examination Exs.P1 to P17 were marked. On the other hand the first defendant Dr.Vasantha Balakrishnan was examined as DW 1 and during the course of her examination Exs.D1 to D39 were marked.

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The issues formulated in the suit in TOS.No.11

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and 12 of 2002 and C.S.No.610 of 2003 may be grouped and answered in the following arrangements;

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Issue No1 in

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TOS.No.11 and 12 of 2002 & Issue Nos.2 and 3 in

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C.S.No.610 of 2003.

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Issue Nos.2 in

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TOS.Nos.11 and 12 of 2002 & Issue Nos.1 and 5 in C.S.No.610 of 2003.

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Issue Nos.4 and 6 in C.S.No.610 of 2003.

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45. Issue No1 in TOS.No.11 and 12 of 2002 & Issue

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Nos.2 and 3 in C.S.No.610 of 2003.

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Whether the delay in applying for probate has been explained satisfactorily:-

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The wills dated 03.02.1984 purported to have have

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been executed by the parents of the deceased first plaintiff and the defendants 1 and 2 have been marked as (Ex.P3 and P4 originals) (Ex.P1 and P2 are the xerox copies of Exs.P.3 and P.4 respectively).

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Ex.P3 is the original will dated 03.02.1984 said to have been executed by Mrs.Ramalakshmi Krishnasamy. This will seems to have been executed in favour of the

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deceased first plaintiff K.Seshadri and the second defendant K.Gopal. From this will it is manifested that the testatrix is having half right as a co-owner in the land comprised in R.S.No.1252 measuring 2 grounds 1419 sq.ft. There is no dispute with regard to the purchase of the property by Mrs.Ramalakshmi Krishnasamy and her husband Dr.K.G.Krishnasamy in their joint names under the deed of sale dated 23.12.1965.

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ExP3 and P4 Wills disclose the fact that they were executed afresh on 03.02.1984 by the parents of the parties to the suit, modifying their earlier Wills, dated 10.09.1981.

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In para 5(a) of Ex.P3 it is stated that the half right in the land comprised in R.S.No.1252 measuring 2 grounds 1419 sq.ft. shall be taken after the life time of Mrs.Ramalakshmi Krishnasamy by her two sons K.Seshadri and K.Gopal in equal share with absolute rights.

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In para 5 (b) it is stated that the second son K.Gopal if for any reason, continues to be a bachelor through out his life time, in such an event, after his life time, his half share bequeathed to him by Mrs.Ramalakshmi Krishnasamy under the above will shall be taken by her first son K.Sheshadri. If it so happens that K.Seshadri pre-deceases and even after K.Gopal continues to be a bachelor through out his life time then

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his half right bequeathed by her to him shall be taken by the children of K.Seshadri.

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In para 5 (c) it is stipulated that her married daughter K.Vasantha Balakrishnan is not entitled to any right, title or interest in the schedule mentioned properties. As per clause 5(d) the will conveys that her son K.Sheshadri is appointed as the executor of the will.

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Ex.P4 will also purported to have been executed by Dr.K.G.Krishnasamy who is none other than the husband of Mr.Ramalakshmi Krishnasamy on the very same date ie., on 03.02.1984. In para 2 of this Will, it is covenanted that he being the co-owner is having half right in the land comprised in R.S.No.1252 measuring 2 grounds and 1419sq.ft.

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In para 3 it is covenanted that with his self acquired fund he had put up the house bearing Door No13, at 6^th street, Gopalapuram, Madras-600086 and as such he is the absolute owner of the property.

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As it is revealed from para 7(a), his half right in the land comprised in R.S.No.1252 measuring 2 grounds 1419sq.ft., and full right in the house bearing No.13, 6^th street, Gopalapuram, Madras-600086 standing on the said land shall be taken after his life time, by his wife Mrs.Ramalakshmi Krishnasamy and thereby given restricted

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power of alienation as provided under Clause (d).

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Clause (b) of para 7 envisages that the above said properties shall be taken after the life time of his wife Mrs.Ramalakshmi Krishnasamy by their two sons K.Seshadri and K.Gopal with absolute rights.

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Clause (c) of para 7 of Ex.P4 and Clause (b) of Para 5 of Ex.P3 appear to be one and the same. Clause 'c' of para 7 of Ex.P4 reads that his second son K.Gopal, if for any reason, continues to be a bachelor through out his life time in such an event after his life time, his half right bequeathed to him shall be taken by his first son K.Seshadri. If it so happens that K.Seshadri pre-

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deceases K.Gopal and even after that K.Gopal continues to be a bachelor through out his life time then his half right bequeathed to him shall after his life time be taken by the children of K.Seshadri.

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Clause 'd' of para 7 stipulates that the testator has given a life interest in the said property to his wife Mrs.Ramalakshmi Balakrishnan. However he has stated that if his wife and two sons decide, after his life time to dispose of the schedule mentioned property they will be entitled to do so and to that extent his wife is given a restricted power of alienation.

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Under Ex.P3 and P4 the deceased first plaintiff

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K.Sheshadri has been appointed as the sole executor.

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The will dated

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03.02.1984 purported to have been executed by Mrs.Ramalakshmi Krishnasamy sought to be probated in TOS.No.11 of 2002 on 06.08.2001 after a delay of 6 years. Similarly, the will dated 03.02.1984 purported to have been executed by Dr.K.G.Krishnasamy is also sought to be probated on 06.08.2001 in TOS.No.12 of 2002 after a delay of 8 years.

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A crucial question is therefore arisen as to whether the inordinate delay in probating the alleged wills (ExP3 and P4) is fatal to the case of the plaintiff?.

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Mrs.Ramalakshmi Krishnasamy had passed away on 04.02.1995 whereas Dr.K.G.Krishnasamy had passed away on 16.02.1993. Ex.P9 and P10 are the certified xerox copies of the death certificates relating to Mrs.Ramalakshmi Krishnasamy and Dr.K.G.Krishnasamy . The testator was the retired Dean of the General Hospital in Madras Medical College. The testatrix was a house wife and she was not educated. The revoked wills dated 10.09.1981 have been marked as Ex.D2 and D3 respectively.

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Admittedly there is an inordinate delay of 6 years and 8 years respectively in filing the testamentary proceedings in original petitions in O.P.No.505 and 506

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of 2001 respectively in seeking the relief of probate of the wills. The propounder viz., the deceased first plaintiff K.Seshadri has stated in the plaint of the testamentary original suits that since he was continuously on tour out side India as he was working in a commercial organization of shipping and marine be used to visit abroad frequently and consequently, he was not able to get any legal advise about the probate of the wills. It is to be seen, “whether the propounder of the will Mr.K.Sheshadri (since deceased) has satisfactorily explained the reason for the inordinate delay?”.

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Rule 9 of Order 25 of Madras high Court Original

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Side Rules contemplates that;

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“In any case where probate or letters of administration is for the first time applied for after the lapse of 3 years from the death of the deceased the reason for the delay shall be explained in the petition.”

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The words “shall be” conveys the meaning of Rigid term of “COMPULSORY” to explain the reason, if the probate is for the first time applied after the lapse of 3 years. It is imperative on the part of the propounder of the will to explain the delay and since the word “shall” is employed it is mandatory on the part of the

¶172

¶173

propounder to explain the delay to the satisfaction of the court.

¶174

Mr.V.K. Elango, learned counsel appearing for

¶175

the plaintiff while advancing his arguments has drawn the attention of this court to the evidence of PW 2 Malathi Seshadri as well as to the original passport of her deceased husband (Ex.P5). In this connection she would state that Ex.P5 original passport of the deceased K.Seshadri would go to show that from 12.1.1984 to 23.03.1984, he was at London and not available in India particularly in Chennai on 03.02.1984, on which date the Wills under Exs.P3 and P4 were executed by the first plaintiff's parents. The learned counsel has also made reference to other passport to expound that during the life time of first plaintiff's parents and even after their death, he used to travel abroad frequently, and

¶176

that the deceased first plaintiff had explained the delay of 6 years and 8 years in filing the O.P's to the satisfaction of this court.

¶177

Mr.V.K. Elango, learned counsel has admitted

¶178

fairly that the O.Ps were not filed in time i.e., within the period of three years, but he has canvassed that the reasons for filing O.P's in the year 2001 were explained by the deceased first plaintiff in the original petitions and therefore there could not be any legal impediment in considering the testamentary original suits for grant of

¶179

¶180

letters of administration with will annexed in favour of the plaintiffs 2 to 6, who are the legal heirs of original first plaintiff.

¶181

He has also maintained that Article 137 of the Limitation Act would not be attracted in this case. In support of his contention he has placed reliance upon the decision in Corra Vedachalam Chetty and another vs. G.Janakiraman reported in 2001 (3) CTC 283. In this case a division bench of this court in paragraph Nos.25, 26 and 28 has observed as under;

¶182

“25. The

¶183

testamentary Court is a Court of conscience. It is not a Court of suspicion. It is not the law that, whenever a Will is sought to be proved in the Court, the Court should start with the presumption that the Will is not genuine, that it is fraudulent and that the person who chooses to probate the Will must remove all such suspicions even they are not unreal. The object of the probate proceedings is not to render the testamentary document ineffective but to make it effective and render the terms of that Will operative. In doing so, the Court has to take note of the fact that the testator is not available to the Court to state as to whether the document in fact was his or her last Will or as to whether he

¶184

¶185

or she had signed the same and whether the attestors had signed receiving an acknowledgement from him about the execution of the Will. It is for that reason that the Courts should be cautious while dealing with the evidence placed before them in relation to the executions and attestation, of the Will as also the disposing state of mind of the testator.

¶186

26. This need for caution, cannot be exploited by unscrupulous caveators who choose to cull out imaginary suspicions with a view to prevent the legatees under the Will from claiming the benefit thereunder and to render the last Will of the deceased wholly ineffective. In this context, the conduct of the persons who raise the alleged ground for suspicion is also to be looked at, to know as to how credible are the grounds for suspicions sought to be raised by such persons. In this case, the suspicion is sought to be raised by a person who is keenly interested in making the Will ineffective and whose conduct is far from one which would inspire confidence in truthfulness of his statements.”

¶187

The learned counsel has further placed reliance upon the decision in Janaki Devi vs. R.Vasanthi and

¶188

¶189

others reported in 2005 1 LW 455

¶190

On the other hand Mr.R.Thiagarajan learned counsel appearing for the first defendant (Dr.Vasantha Balakrishnan) has adverted to that on examination of the passports of the deceased plaintiff K.Seshadri which were produced by PW 2 during the course of her crossexamination they would reveal that K.Seshadri was very much available in India for almost all the time and no valid reason has been adduced by the first plaintiff for delay in seeking the probate of the alleged wills executed by the parents of the first plaintiff have been given on behalf of the plaintiffs.

¶191

In this connection he has also drawn the

¶192

attention of this court to the evidence of PW 2 as well as to the passports of her husband K.Seshadri with reference to his tour abroad. Exs.P5 to P8 and Exs.P11 to P14 are the passports in original belonged to the deceased K.Seshadri. Pw 2 Mrs.Malathi Seshadri has deposed that her husband was the Managing Director of a Shipping Company which required travel within the country to various ports. In her cross-examination in page 27 she has deposed that she had produced the passports of her husband voluntarily and according to her they would

¶193

go to show that her husband was abroad while the wills were drafted and that she had also produced those passports for the purpose of explaining the delay in

¶194

¶195

filing the petition to probate the wills. She admits that she knew that there was a delay and her husband was also aware of the delay since he had filed the O.P's. She has also deposed that it might be correct to state that there was a delay of 6 years in filing the O.P's and in most of the period, during 6 years he was traveling abroad and might have stayed in Chennai for few days. This has been confirmed by her in her cross-examination at page 67.

¶196

Ex.P5 passport bearing No. U777858 appears to have been issued on 18.08.1983 to the deceased Mr.K.Seshadri. On perusal of this passport at page 5 it is stated that the previous passport No. U 283314 dated 23.05.1983 issued at Bombay was cancelled and returned.

¶197

Mr.R.Thiagarajan has also argued that one of the

¶198

strong pleas taken by the caveator viz., the first defendant was that the propounder had played a prominent role and exerted undue influence in bringing about the alleged wills and as such the beneficiary had a duty to dispel that suspicion. He has also added that the propounder had proximity, opportunity and circumstance to get the will executed in his favour as he was allotted

¶199

major benefits to himself as well as to his family. He

¶200

has also added that the propounder K.Seshadri was looking

¶201

for employment in Chennai during the relevant period and as such he had spent much time at his parents home, and

¶202

¶203

that K.Seshadri had moved permanently to Chennai, the very next year and moreover he had pretended to be out of the Country at the time of execution, attestation and registration of the alleged wills.

¶204

He has also drawn the attention of this Court to Ex.P5 passport based on which P.W.2 has claimed that her husband was in UK from 12.01.1984 to 23.02.1984, that is, an absence of 42 days (the alleged wills were executed on 03.02.1984).

¶205

Besides Ex.P5 the other passports were also produced and according to Mr.R.Thiagarajan it was found that the average duration of trips overseas has been 3 to 5 days and that the trip to UK from 12.01.1984 to 23.02.1984 i.e., 42 days absence would be unprecedented. He has also submitted that Ex.P5 passport did not contain the VISA to enter UK and when this was pointed out, PW 2 had initially and confidently stated that she would produce all the passports but she had not done so saying that they were not available. Apart from this he has also pointed out that the propounder's passport would also show that he would travel abroad using expired passports and that he would travel abroad using one such passport and return on another passport. He has also made stress on Ex.P8 and submitted that this is a classic example of his use of an expired passport.

¶206

¶207

¶208

Mr.R.Thiagarajan has also argued that all the passports, exhibited on behalf of the plaintiff's side would adequately prove the propounder's presence during the registration of the alleged wills. His attempt to deny it and inability to prove his absence, pointing towards his active role in playing undue influence and threat upon his parents to sign the impugned wills which were prepared by him and the act of undue influence that he exerted.

¶209

On perusal of the testimonies of PW 2 it is understood that Ex.P5 original passport of the deceased plaintiff K.Seshadri has been produced to prove the fact that on 03.02.1984, on which date the wills were said to have been executed, he was not available in India and the remaining passports viz., Exs.P6 to P8 and Exs.12 to 14 have been produced to establish the fact the Mr.K.Seshadri used to travel abroad frequently and therefore, he was not able to file the O.P's to get the

¶210

wills probated within the stipulated time of three years. However, as argued by Mr.R.Thiagarajan, VISA to enter UK on 12.01.184 was not produced and secondly on perusal of

¶211

all the passports viz., Exs.P6 to P8 and Exs.12 to 14 this court finds that the average duration of trips under taken by K.Seshadri would be 3 to 5 days only. But the absence of 42 days as it is seen from Ex.P5 i.e., from 12.01.1984 to 23.02.1984 seems to be unprecedented and unexplained.

¶212

¶213

Whether the Wills (Exs. P3 and P4) in question were procured by playing fraud, coercion and undue influence taking advantage of the old age of the testator and testatrix?

¶214

The first defendant Dr.Vasantha Balakrishnan has challenged the genuineness and validity of the Wills on various grounds, such as:-

¶215

(a) The Wills are vitiated by suspicious

¶216

circumstances and fraud;

¶217

(b) they do not reflect the true volition and mind

¶218

of Ramalakshmi Krishnaswamy, as also that of Dr.K.G.Krishnaswamy;

¶219

¶220

(d) The Wills were procured by fraud coercion and undue influence.

¶221

Besides the

¶222

questions raised by the first defendant Dr.Vasantha Balakrishnan as aforestated, she has also raised the following crucial points with reference to the vitiating circumstances shrouded around the Wills in dispute:-

¶223

(a) no draft Wills have

¶224

¶225

been produced before the Court and no materials have been placed and nothing has been said as to who had briefed the Advocate/Scribe Mr.M.R.Krishnan for the preparation of the Wills;

¶226

(b) Who had furnished the material details, particulars and information about the assets both movable as well as immovable of late K.G.Krishnaswamy as well as Tmt. Ramalakshmi Krishnaswamy.

¶227

¶228

(d) The deceased first plaintiff Mr.K.Seshadri who is her eldest brother had taken a prominent role and part

¶229

in bringing about the impugned Wills in tacit understanding, collusion and connivance with the scribe;

¶230

unbelievable and unusual for anyone of the calibre of her late father not to call any of his close relatives/close friends to be attesting witnesses for execution and registration of the Wills in the office of the Registrar, Mylapore which was very near to his place of residence; and

¶231

(f) PW-1 Mr.N.Subramanian happened to be a chance

¶232

¶233

witness for the document. He deposed in his evidence that he had been to Santhome High Road, R.A.Puram, Chennai -28 for some other purpose and there, he had accidentally met her father, who told him that he needed a witness to attest Exs.P.3 and P.4.

¶234

According to Dr.Vasantha Balakrishan (D-1), the Wills (Exs. P-3 and P-4) are shrouded by the above said circumstances, which would lead any ordinary man of prudence to presume that they could have been procured under suspicious circumstances and as such they do not reflect the true volition or the intention or wish or desire of her parents Dr.K.G.Krishnaswamy and Smt. Ramalakshmi Krishnaswamy and therefore, she has deposed that the Wills (Exs. P3 and P4) are not genuine and they might have been procured by the propounder of the Wills Mr.K.Seshadri by playing fraud, undue influence, threat and coercion on their parents.

¶235

Keeping in view of the above fact, this Court finds that the onus is on the part of the propounder to dispel the above said circumstances.

¶236

As adumbrated in the foregoing paragraphs, Mr.K.Seshadri who is the propounder of the Wills had passed away after institution of the Testamentary Original Petitions and admittedly the second defendant Mr.K.Gopal has not chosen to enter into the box to prove

¶237

¶238

the Wills as well as Ex.P-11 letter as he is also one of the beneficiaries of the Wills in dispute. Since he has given a consent affidavit to grant probate in favour of the propounder of the Wills, he is also duty bound to give evidence. But his failure to enter into the witness box would necessarily lead this Court to draw an adverse inference as against him as well as against the case of the plaintiffs 2 to 6 as propounded by them.

¶239

With reference to the practice of not calling

¶240

the party as witness with a view to force the other party to call him, this Court would like to place reliance upon the decision in Sardar Gurbakhsh Singh Vs. Gurdian Singh and another reported in AIR 1927 Privy Council 230 wherein a Three Judges Bench of Privy Council has observed as under:-

¶241

“The practice of not calling the party as witness with a view to force the other party to call him, and so suffer the discomfiture of having him treated as his, (the other party') own witness is a bad and degrading practice, 32 All. 104 (P.C.) Ref. The true object to be achieved Court of justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected in all its

¶242

¶243

particulars to cross-examination.”

¶244

For the purpose of proving the Will for granting of probate, Sections 59, 61, 63(c), 74, 75, 82, 87, 124, 222, 255, 276, 295 of the Indian Succession Act are very relevant.

¶245

In so far as the Indian Evidence Act 1872 is concerned, Sections 3, 5, 17, 45, 47, 58, 64, 67, 68, 69, 74, 90, 101, 102, 103, 104, 114, 118, 137 are very much relevant.

¶246

In so far as the Madras High Court Original Side Rule is concerned, Order 25 Rule 9 is very much important.

¶247

The contention of the first defendant

¶248

Dr.Vasantha Balakrishnan is that the disposition in the Wills is unfair, unnatural and improbable and therefore, she suspects the genuineness of the Wills.

¶249

With reference to non examination of propounder of the Wills, this Court would like to have reference to the decision in Adivekka and Others vs. Hanamavva Kom Venkatesh (Dead) by Lrs. And Another reported in (2007) 7 SCC 91 . In this case, the defendant who is the propounder of the Will had not examined herself but examined her husband as her power of attorney. Under this circumstance, suspicion arose out of the contents of

¶250

¶251

the Will as well as from the facts of the case and also from the averments made by the defence witnesses including the said power of attorney. The Division Bench of Hon'ble Apex Court while speaking through S.B.Sinha, J. has observed that some of such circumstances, which the propounder of the Will might have explained remaining unanswered due to her non-examination would lead to an adverse inference. Besides this, His Lordship has also held that where there are suspicious circumstances the onus would be on the propounder to remove suspicion by leading appropriate evidence.

¶252

Section 68 of the Indian Evidence Act postulates the mode and manner in which proof of execution of document is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the Court and capable of giving evidence. The proof a will is required not as a ground of reading the document but to afford the Judge reasonable assurance of it as being what it purports to be. There exists a distinction where suspicions are well founded and the cases where there are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The Court may not start with a suspicion and it should not close its mind to find out the truth.

¶253

¶254

In an another case in Niranjan Umeshchandra

¶255

Joshi Vs. Mrudula Jyoti Rao and Others reported in (2006) 13 SCC 433 , an appeal was preferred by the appellant Niranjan Umeshchandra against the order of dismissal of his appeal by the High Court refusing to grant probate attached with the Will in question. The Division Bench of the High Court had found the following suspicious circumstances surrounding the Will:-

¶256

“(i) The propounder took part in execution of the Will, being sole recipient of the legacy;

¶257

(ii) The dispositions made in the Will by the testator are unnatural, unfair and improbable as wife and grandchildren were excluded from the benefit thereof despite the fact that he had love and likings for all;

¶258

(iii) There is no recital in the Will that the appellant's sister, who was married to a Muslim boy, was to be specifically excluded;

¶259

(iv) Why the Will had been executed by the testator within 24 hours of his hospitalisation has not been explained;

¶260

(v) Witnesses to the Will were

¶261

¶262

interested persons, and evidence adduced in support of execution of the Will was unsatisfactory, particularly when the doctor treating him had not been examined;

¶263

(vi) The ailment from which the testator had been suffering was not being disclosed which shows that he might have been terminally ill as within eight days from execution of the Will, he died;

¶264

(vii) There was not satisfactory evidence to show as to why the testator sent for the appellant's friend for attestation of the Will although he did not have much acquaintance with him;

¶265

(viii) No satisfactory evidence was brought on record as regards the cause of death of the deceased; and

¶266

(ix) There is no explanation as to why the appellant and others visited the hospital during nonvisiting hours in the ICU cubicle for execution of the Will.”

¶267

On the basis of the above suspicious

¶268

circumstances, which the appellant failed to remove, the High Court held that the prayer for probate should not be granted. When the appeal came before the Division Bench

¶269

¶270

of the Hon'ble Apex Court, the Hon'ble Mr.Justice

¶271

S.B.Sinha on behalf of the Division Bench as under:-

¶272

“A will is to be proved by what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. In terms of Section 68 of the Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.

¶273

The burden of proof that the will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of will, a signature of a testator alone would

¶274

¶275

not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. Subject to above, proof of a will does not ordinarily differ from that of proving any other document.”

¶276

Mr.V.K.Elangho, the learned counsel appearing for the plaintiffs while advancing his argument has fairly admitted that in both the Wills, the testator and the testatrix, who are the parents of the parties to the Testamentary Original Suits had specifically omitted to give any property to their only daughter Dr.Vasantha Balakrishnan (D1) and that she was also excluded in earlier Wills dated 10.09.1981. The deceased first plaintiff K.Seshadri is the sole named executor in both the Wills. This fact has not been disputed.

¶277

It is also an admitted fact that the first defendant Dr.Vasantha Balakrishnan has been excluded and totally disinherited. For which Mr.V.K.Elangho, learned counsel for the plaintiffs has submitted that since the first defendant had married against the wishes of her parents, they did not want to give any property to her. “A” schedule property is the Will mentioned property in T.O.S.Nos.11 and 12 of 2002 and both the Wills under Exs. P3 and P4 are registered Wills.

¶278

¶279

It is significant to note here that the

¶280

testator and the testatrix have not opted to execute joint Wills. The propounder of the Will Mr.K.Seshadri(plaintiff in both the Testamentary Original Suits) has passed away on 21.06.2005 and on his demise, his wife and four children were brought on record as plaintiffs 2 to 6 as the beneficiaries under the said Wills. After his demise, the prayer of the Testamentary Original Suits was also modified in Form No. 59 under Order 25 Rule 5 of the Original Side Rules read with section 222 and 278 of the Indian Succession Act and in lieu of probate, Letters of Administration with the Wills annexed is sought for.

¶281

The Wills are pertaining to immovable property and no mention is made about jewellery, Bank deposits or any other movables. On perusal of the Wills in dispute, this Court does not find any residuary clause. No doubt, the property specified in both the Wills is the self acquired property of the testator Dr.K.G.Krishnaswamy. The alleged Wills of the testator and the testatrix differ only in respect of disposition in the event of one pre-deceasing the other. The Wills revealed that the testator has settled the immovable property in favour of his wife Mrs.Ramalakshmi Krishnaswamy which shall be taken over by her after the testator's life time without the right of alienation. However in the event, the

¶282

¶283

testatrix viz., Ramalakshmi Krishnaswamy predeceases her husband, the benefits under the alleged Will

¶284

automatically and directly goes to their two sons without providing anything to their daughter under the alleged Will to the Testator. In fact, both the alleged Wills make a special reference to the second son who was a bachelor at the time of execution of the alleged Wills, stating that, in the event if he remains as a bachelor, then after his life time his share shall go to the first son K.Seshadri (deceased plaintiff) or his children and thereby the entire benefits goes to the propounder viz., K.Seshadri. The first defendant Vasantha Balakrishnan has been disinherited totally in the alleged Wills of parents. But, no reason for her disinheritance is given.

¶285

It appears that both the Wills (under Exs. P3 and P4) were prepared by the scribe viz., one

¶286

M.R.Krishnan, Advocate. He had also acted as an attesting witness. In fact no draft Wills have been produced. The Wills are typed in English.

¶287

This Court would like to place it on record that

¶288

Mr.K.Seshadri, who is the propounder of the Wills is no more as he had passed away after filing of the Testamentary Original Petitions. The second defendant Mr.K.Gopal has admittedly filed his consent affidavit and thereby he has expressed his desire that he did not have any objection to grant the relief in favour of the

¶289

¶290

plaintiffs. However, his consent affidavit has not been marked. In order to prove the Wills, one of the attesting witness Mr.N.Subramanian has been examined as PW-1. Unfortunately, the second defendant Mr.K.Gopal as discussed herein before has not entered into the box but the widow of deceased first plaintiff Mr.K.Seshadri ie., Mrs.Malathi Seshadri has been examined as PW-2.

¶291

As it is revealed from the evidence of PW-1, he (Mr.N.Subramanian) is a chance witness. He also happens to be related to the testator, but he says that he did not know the testatrix.

¶292

As argued by Mr.V.K.Elangho, Mr.M.R.Krishnan, Advocate, who was the scribe of the Wills as well as one of the attesting witnesses had died even before filing of Original Petitions in the year 2001. In fact, PW-1

¶293

Mr.N.Subramanian was examined De Bene Esse . Since the propounder of the Will is not available as he had passed away and the second defendant Mr.K.Gopal had not entered into the box, Exhibits P1 to P4 were marked through PW1. Exhibits P-1 and P-2 are the Xerox copies of the Original Wills under Exs. P3 and P4 respectively.

¶294

Mr.V.K.Elangho, learned counsel during the

¶295

course of this argument has drawn the attention of this Court to paragraphs 4, 5 and 6 of the reply statement filed by the plaintiff to the written statement of the

¶296

¶297

first defendant and adverted to that the deceased testator had clearly mentioned in the Will that their daughter (D-1) was not entitled to any right, title or interest in the schedule mentioned property. He has also added that at the time of execution of the Wills, the plaintiff was not in Madras and in fact, he was in abroad and not in this country on the date of execution and registration of the Wills dated 3.2.1984.

¶298

But the specific contention made by Dr.Vasantha Balakrishnan (D-1) is that the Wills were created by the deceased first plaintiff with the connivance of the second defendant after making their parents to sign a prepared document without disclosing the contents by practising fraud, coercion, threat and got the document signed by their parents. But these allegations are stoutly denied by the first plaintiff in the above said paragraphs viz., 4, 5 and 6.

¶299

Mr.V.K.Elangho has also drawn the attention of this Court to paragraph No. 4 of the written statement of the deceased first plaintiff to the suit in C.S.No. 610 of 2003 instituted by the first defendant Dr.Vasantha Balakrishnan where he has stated that their parents had executed two Wills in the year 1981 bequeathing their immovable properties in favour of him (since deceased) and those Wills were revoked by their parents and

¶300

¶301

executed two other Wills dated 03.02.1984 bequeathing their immovable properties in his favour and the second defendant Mr.Gopal.

¶302

In so far as the evidence of PW-1 is concerned, originally he was examined De Bene Esse in the year 2001 and again he was recalled and further cross examined in the year 2009 elaborately.

¶303

According to Mr.V.K.Elangho, PW-1 being one of the attesting witnesses had admitted the execution and attestation of two Wills and he had also admitted the health condition of the testator as well as the testatrix. In this regard, Mr.V.K.Elangho has taken this Court through the evidence of PW-1 N.Subramanian. He has also argued that PW-1 had categorically admitted the execution, attestation and registration of both the Wills in his examination and that PW-2 Mrs.Malathi Seshadri had also marked Ex.P-5 original passport of her deceased husband to show that from 12.01.1984 to 23.2.1984 her husband was in London and that he was not available in Chennai on 3.2.1984, on which date, the alleged Wills were said to have been executed by their parents.

¶304

Mr.V.K.Elangho has also argued that the Wills

¶305

are the personal act of the testator as well as the testatrix and that no reasons were available to suspect the genuineness of the Wills. He has also indicated that

¶306

¶307

the Exs. P15 to P17 ie., the handwritten inland letters would go to show the mental agony of the testator Dr.K.G.Krishnaswamy prior to the marriage of the first defendant Dr.Vansanth Balakrishnan as she had married a non Brahmin after a long struggle with her father and ultimately her marriage was performed at Tirupathi, without the presence of both the parents.

¶308

But the deceased plaintiff K.Seshadri and the second defendant had attended the marriage and as per the evidence given by the first defendant Dr.Vasantha Balakrishnan, on the instructions given by her father because of his health condition as he was hospitalised, her brothers, viz., the deceased first plaintiff and the second defendant had attended the marriage and all the marriage expenses were met out by her father Mr.K.G.Krishnaswamy.

¶309

Mr.V.K.Elangho has also maintained that till

¶310

1985 both their parents were living alone in Madras as deceased first plaintiff Mr.K.Seshadri was in Bombay with his family and only in 1985 he had settled at Madras with his parents and started living till their death. He has also argued that the second defendant Mr.K.Gopal got married in November 1995 and the contingency in the Wills regarding the share was removed.

¶311

Mr.V.K.Elango has also drawn the attention of

¶312

¶313

this Court to letters under Exs. D13, 15 to 30, 33 and D36 alleged to have been written by the testator Dr.K.G.Krishnaswamy to his daughter Dr.Vasantha Balakrishnan over a period of September 1989 to 8.10.1992. In this connection, he would submit that in all these letters, nowhere Dr.K.G.Krisnaswamy had whispered about the execution of Wills in 1981 and 1984. He has also never stated that the Wills were extracted by coercion, undue influence and fraud. He has also indicated that Dr.K.G.Krishnaswami had never whispered in the above said letters regarding the share of movable and immovable properties among three children. Even after the death of father, their mother Mrs.Ramalakshmi Krishnaswami had also never whispered about the execution of the Wills, by exercising of undue influence, coercion and fraud.

¶314

Ex. P11 is said to be a letter dated 11.05.1979 acknowledging the gift of available jewels to her second son viz., D-2 Gopal and that the second defendant K.Gopal had opened a locker account under Ex. D39 on 07.06.1990 along with her mother as ERS account with the Bank of India, Cathedral Road Branch, Chennai and that their mother was one of the signatory in the locker account.

¶315

With reference to

¶316

Ex. P11 letter, Mr.V.K.Elagho has argued that no question was put to PW-2 Mrs.Malathi Seshadri when she was

¶317

¶318

standing in the witness box suggesting that Ex.P-11 letter was not valid. He has also reference to the cross examination of PW-2 particularly the inner pages 47, 51, 52, 55 and 59 corresponding running pages 79, 83, 84, 87 and 91 of Volume – II of the typed set of papers.

¶319

Admittedly, the second defendant K.Gopal has not entered into box and as such he had no occasion to have reference to Ex.P-11 letter. Further, he has argued that though the first defendant Dr.Vasantha Balakrishnan had vehemently opposed both the Wills dated 03.02.1984, she had not proved the allegations of fraud, coercion and undue influence in a manner known to law as the burden of proving those allegations rested upon her. She had also not chosen to examine any witness to prove those allegations and she had failed to prove the existence of “B” schedule properties as mentioned in the plaint in C.S.No. 610 of 2003.

¶320

During the

¶321

course of his argument Mr.V.K.Elangho has also taken this Court to page 158 of Volume – II of the typed set of papers wherein the first defendant Dr.Vasantha Balakrishnan has stated that Exs. D-10 to D-36 were personal letters exchanged between her and her parents and brothers and all the letters did not contain anything about the sharing of the properties by her brothers and herself equally.

¶322

Exs.D-10 to

¶323

¶324

D-36 were marked on behalf of the first defendant and according to Mr.V.K.Elangho, the above letters did not have any mention about the execution of the Wills by her parents or extraction of the Wills by fraud, coercion suppressing the material facts by her brothers. She has also stated at page 159 of Volume – II of the typed set of papers that the execution of the Wills by her parents was their personal act. At page 167 of the above said volume, Dr.Vasantha Balakrishnan has stated that her mother can sign her name in English and she could not write anything else in any language. She has also stated that the signature found in Ex.P-11 letter looks like that of her mother and that the signature found in Ex.P-3 Will looks like that of her mother. In the last line of page 167 in the same volume, she has stated that the signature find a place in Ex.P-4 Will was that of her father.

¶325

With reference to her submissions as afore stated, Mr.V.K.Elangho has argued that the first defendant had also admitted that she did not know whether the jewellery were kept in the locker and that the plaintiff had well explained the delay of three years in filing the Testamentary Original Petitions afters the death of his parents. With regard to the genuineness of the Wills under Exs. P-3 and P-4, he has argued that Order XXV Rule 9 of the Madras High Court Original Side Rules, had not prescribed any period of limitation and

¶326

¶327

that Exs. P-3 and P-4 being the registered Wills, should have their solemnity established under Section 60 of the Registration Act.

¶328

In support of his contention, he has placed reliance upon the decision of the Division Bench of this Court in Janaki Devi Vs. R.Vasanthi and others reported in 2005-1-LW 455 wherein through M.Thanikachalam. J, the Division Bench of this Court has spoken in Paragraph No. 30 as under:-

¶329

“ 30. Ex.P.1 is a registered Will

¶330

and it should have its solemnity, under Section 60 of the Registration Act, though it will not relieve the propounder from proving the execution of the Will, by examining the attestor as contemplated under Section 68 of the

¶331

Indian Evidence Act.

¶332

The Division Bench in paragraph No. 31 of the above cited decision has made reference to Section 69 of the Indian Evidence Act which explain the legal mandate as to how the document, which requires attestation should be proved, where no attesting witness is found. In the given case on hand, out of two attesting witnesses, the second attesting witness Mr.N.Subramanian has been examined as PW-1 while the first attesting witness as well as the scribe Mr.M.R.Krishnan (Advocate) had passed

¶333

¶334

away even prior to the filling of the Testamentary Original Petitions.

¶335

Mr.V.K.Elangho has also argued that the mere failure on the part of the propounder of the Will to produce the same for probate immediately after demise of the testator by itself would not render the Will fraudulent or untrue. He has further argued that the Will was the Will of the testator and he had, under the law, freedom to give the property to whomsoever he liked. In support of this proposition, he has made reference to the decision in Palaniswami Vs. P.Velliangiri Gounder and

¶336

others reported in 2003-3-LW 363 , wherein the Division Bench of this Court has explained the legal position that could be deduced and set out as under:-

¶337

“(a) The Will is the Will of the Testator and he has, under the law, freedom to give the property to whomsoever he likes.

¶338

(b) Once it is established that the Testator was free and had sound disposing mind, it is no longer the duty of the Court, to go further to inject its own ethics of what is or is not moral or fair disposition, according to the Courts' own

¶339

¶340

standards.

¶341

© What are the suspicious circumstances, must be judged in the fact and circumstances of each particular case, inevitably a question of fact in each case. (Certain examples are given in the decision reported in AIR 1959 S.C.443).

¶342

(d) Broadly speaking, the uneven distribution of assets among children by itself cannot be taken as a suspicious circumstance. In such an event, the standard of scrutiny has to be different than in the ordinary cases more so when no reasons are given for such disposition.

¶343

(e) In relevant circumstances or in a given situation, unnatural or improbable or unfair disposition may give suspicion to the Court when it will be a suspicious circumstance.

¶344

(f) When a second Will is executed within a very short duration after the first Will, say within a few days or few

¶345

¶346

weeks and whereunder there is complete exclusion of one branch (which branch was given a share under the first Will), a suspicion is bound to arise and that suspicious circumstance has to be

¶347

satisfactorily explained by the person concerned.”

¶348

It is also the submissions of Mr.V.K.Elangho

¶349

that with reference to the plea of fraud, undue influence separate pleading is absolutely necessary. Without any amount of pleading with regard to the playing of fraud, coercion, threat and undue influence, the contention of opposite party could not be taken in to account. In so far as this argument is concerned, this Court finds that it is not able to countenanced because the first defendant Dr.Vasantha Balakrishnan has specifically pleaded about the playing of fraud, undue influence, coercion and threat in paragraph No. 8 in both her written statements to T.O.S.Nos. 11 and 12 as it find place at Page 14 and 38 of Volume – I of the typed set of papers and apart from this, in paragraph No. 14 of the amended plaint of C.S.No. 610 of 2003 also, she has specifically pleaded about the practising of fraud, coercion and undue influence over the parents by the deceased plaintiff and the second defendant. She has also pleaded that the Wills were not out of free Will thrust on them without knowing the contents taking

¶350

¶351

advantage of his residence in the same house where the parents were residing. Therefore, this portion of argument advanced by Mr.V.K.Elangho is deserved to be ignored and equally the decision of the Apex Court in Saradamani Kandappan Vs. S.Rajalakshmi and others reported in 2011 (4) CTC 640 is also not made applicable to the instant case on hand.

¶352

Mr.V.K.Elangho, has made reference to the

¶353

evidence of DW-1 Dr.Vasantha Balakrishnan and he has also made reference to page 171 of the typed set of papers of Volume – II (Deposition). In this page, the evidence of DW-1 is in the Form of question and answer. To a question “Have you disputed the Will dated 10.09.1981 executed by your parents in your plaint in C.S.No. 610 of 2003?”, DW-1 has answered “No”. She has further answered that in fact I have mentioned about the Wills dated 03.02.1984 purported to have been executed by my parents. For an another question “ Have you disputed the Wills dated 10.09.1981 executed by your parents in the written statements filed by you in T.O.S.Nos. 11 and 12 of 2002?”. She has answered that “I have not disputed the Wills dated 10.09.1981 because they did not seek to probate those two Wills, but I have challenged the Wills dated 03.02.1984.”

¶354

In page 172 of the typed set of papers of

¶355

¶356

Volume – II (Deposition), she has stated that her parents were having the right to dispose of the property in any manner as they like, but without any outside influence. In the same page, she has also deposed that she did not verify with regard to the facts stated in paragraph 3 in Ex. P3 and paragraph 5 in Ex.P4 Wills. She has also stated that she did not verify the facts stated in paragraph No. 5 in Ex.P3 and paragraph No. 7 in Ex.P4 Wills about the earlier Wills and codicils and at the tail end of the above said page, she has also deposed that she had not specifically disputed the Left Hand Thumb impression of her parents in those two wills.

¶357

In page 182 of Volume – II (Deposition), a

¶358

question was put to her during the course of her cross examination in the following form:-

¶359

“I put it you that in Exs.P15 to P17, your father had expressed anguish over your non-cooperation with regard to your marriage and therefore, they have sought the advise of his son Mr.K.Seshadri”.

¶360

For this question, she has answered that “As I said in my proof affidavit, though initially he objected, later on, he had agreed with my decision and gave his consent."

¶361

With reference to the above context, Mr.V.K.Elangho has argued that the intention of

¶362

¶363

DW-1's parents was not to give her any shares in the immovable property and therefore they did not make any reference about her in the Wills under Exs. P3 and P4. He has further argued that as it appear from Ex. P5 series (passport), P. 25, 26, 27 and 28, the deceased first plaintiff Mr.K.Seshadri was not at all present in India when the Wills under Exs. P3 and P4 were executed on 03.02.1984.

¶364

He has also continued to submit that since

¶365

the first defendant Dr.Vasantha Balakrishnan had taken a plea of fraud, coercion and undue influence, it was for her to prove such allegation of fraud and undue influence. In this connection, he has made reference to the following decisions:-

¶366

“(i) Daulat Ram and others Vs. Sodha

¶367

and others reported in 2004(5) CTC 790 (SC);

¶368

(ii) K.Sadagopan Vs. K.Yammon reported in 2002(2) CTC 641 ;

¶369

(iii) Shashikumar Bannerjee Vs. Suboth

¶370

Kumar Bannerjee reported in A1964 sc 529 ;

¶371

(iv) N.Kamalam (Dead) and another Vs.

¶372

Ayyasamy and another reported in 2001(7) SCC 503 ;

¶373

¶374

Karthyayani Amma and Others reported in 2008(1) MLJ 1337 ;

¶375

(vi) Naresh Charan Das Gupta Vs. Paresh Charan Das Gupta reported in A 1955 SC 363 ;

¶376

(vii) Surendra Pal and others Vs. Dr. (Mrs.) Saraswati Arora and another reported in A 1974 SC 1999 ;

¶377

(viii) Anil Kak Vs. Kumari Sharada Raje and others reported in 2008(7) SCC 695; and

¶378

(ix) State Vs. Abdul Sultan Haji Ibrahim Palet reported in A 1963 Gujarat 226 (DB) .

¶379

He has also submitted that the first defendant had not adduced any evidence to prove the allegations relating to coercion.

¶380

In Daulat Ram and others Vs. Sodha and others

¶381

reported in 2004(5) CTC 790 (SC) cited supra, a Division Bench of the Hon'ble Apex Court headed by Hon'ble Mr. Justice Ashok Bhan has observed in paragraph No. 10 as under:-

¶382

“10. Will being a document

¶383

has to be proved by primary evidence except where the Court permits, a document to be proved

¶384

¶385

by leading secondary evidence. Since it is required to be attested, as provided in Section 68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the attesting witnesses at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925. In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged.

¶386

¶387

But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the Will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so.”

¶388

The provision of Section 222 of the Indian Succession Act 1925 contemplates proabte only to appointed executor. Whereas Section 220 envisages the effect of letters of administration. Section 227 envisages the effect of probate.

¶389

As discussed in the opening paragraphs, originally the Testamentary Original Petitions were filed for granting probate of the Wills under Exs. P3 and P4. After the demise of the appointed executor viz., Mr.K.Seshadri, his widow and children were impleaded as plaintiffs 2 to 5 and in consequence thereof, the prayer was also amended for granting of letters of administration.

¶390

In this connection, Mr.V.K.Elangho has

¶391

submitted that the prayer for granting a probate is in the nature of a Judgement in rem and not Judgement in personem. He has also made reference to the decision in

¶392

¶393

Anil Kak Vs. Kumari Sharada Raje and others reported in

¶394

2008(7) SCC 695. The very same decision has also been relied upon by Mr.R.Thiagarajan during the course of his argument on behalf of the first defendant Dr.Vasantha Balakrishnan. In this case, it is held that order of granting probate is in the nature of a Judgement in rem. It is also held that where suspicious circumstances exist, the party seeking to obtain probate/letters of administration with a copy of the will annexed must also adduce evidence to the satisfaction of the Court regarding the genuineness of the Will and the Court must satisfy it's conscience before passing an order granting probate. It is also held that the deprivation of a due share to natural heir although might not by itself be a suspicious circumstance, it is nonetheless one of the factors to be taken into consideration by Courts before granting probate of Will (reference is made to Section 41 of the Indian Evidence Act 1872).

¶395

Form No. 55 (Order XXV Rule 4 of the Madras High Court Original Side Rules speaks about the probate in respect of named executors. No doubt, in so far as Exs. P3 and P4 Wills, dated 03.02.1984 are concerned, the deceased first plaintiff K.Seshadri has been named as the sole executor.

¶396

Order XXV

¶397

Rule 51 of Original Side Rules speaks about particulars

¶398

¶399

of caveat and Rule 52 speaks about the time for affidavit in support of caveat. Rule 53 speaks about notice to caveator to file affidavit where application for grant is made after caveat is filed.

¶400

Obviously Rules 51 to 68 come under the contentious proceedings. When the Testamentary Original Petition is contested, it becomes contentious suit ie., Testamentary Original Suit. The respondents in the petition, after its conversion, will be called as the defendants.

¶401

Form No. 56 (Order XXV Rule 4(c)) contemplates the affidavit of the attesting witness. Form No. 59 (Order XXV Rule 5) speaks about petition for Letters of Administration with the Will annexed and Form No. 59(A) (Order XXV Rule 10) says about citation to bring in an alleged Will.

¶402

As discussed, the Judgement which may be pronounced in the Testamentary Original Suit granting probate is no doubt a Judgement in rem and not Judgement in personem.

¶403

To constitute a Will, free Will is a necessary element.

¶404

Section 63(c) of the Indian Succession Act enacts as under:-

¶405

¶406

“The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”

¶407

Section 63 of the Indian Succession Act lays down the mode and manner of execution of unprivileged Wills. A Will is the legal declaration of the intention of the testator with respect to the property which he desires to be carried into the effect after his death. As observed in Pillai Vs. Parameshwaran reported in AIR 1954 TC 197 , a Will need not be in any particular form and it is sufficient if it contains the testamentary wishes of the deceased.

¶408

Section 63(c) requires that a Will must be signed by the attesting witnesses in the presence of the testator. The design of the Legislature says Mr.Jarman,

¶409

¶410

in making this requisition, evidently was, that the testator might have ocular evidence of the identity of the instrument subscribed by the witnesses, and this design has been kept in view by the Courts in fixing the signification of the word 'presence'. To constitute 'presence' in the first place, it is essential that the testator should be mentally capable of recognising the act which is being performed before him; for, if this power be wanting, his mere corporal presence would not suffice. Thus, if a testator, after having signed and published his Will, and before the witnesses subscribe their names, falls into a state of insensibility (whether permanent or temporary) the attestation is sufficient.

¶411

This proposition has been laid down in Right Vs. Priee Dough 241 . A testator must be conscious of the transaction in which the witnesses are engaged.

¶412

As per Section 3 (interpretation Clause) of the transfer of property Act, instrument means a non testamentary instrument: attested in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the

¶413

¶414

signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have to be present at the same time, and no particular form of attestation shall be necessary. This interpretation with reference to attestation is analogues to Section 63(c) of the Indian Succession Act.

¶415

Mr.R.Thiagarajan, learned counsel appearing for the first defendant Dr.Vasantha Balakrishnan has vehemently attacked the genuineness of the Wills under Exs. P3 and P4 dated 03.02.1984 and another document under Ex. P11 a letter dated 11.05.1979. Admittedly PW1 Mr.N.Subramanian is a chance witness.

¶416

As argued by Mr.R.Thiagarajan, the Wills under Exs. P3 and P4 are in fact silent with regard to the question as to why the first defendant is not reserved to any right? In Ex.P3 original Will at page 3 in the top, prior to Clause (d), there is an interpolation. But this has not been counter signed either by the testatrix Mrs.Ramalakshmi Krishnaswamy or by the scribe Mr.M.R.Krishnan. Similarly in Ex. P4 also at page 4 beneath the Clause (e), there is an interpolation. This has also not been counter signed either by the testator Dr.K.G.Krishnaswamy or by the scribe Mr.M.R.Krishnan. This is an admitted fact.

¶417

¶418

The first defendant Dr.Vasantha Balakrishnan had married a non Brahmin against the wishes of her parents and subsequently settled at United States. According to the plaintiffs, this might be the reason for her disinheritance. But this has not been specifically stated in the above said Wills. At page 2 in Clause (c) of Ex. P3 Will (purported to have been executed by Mr.Ramalakshmi Krishnaswamy), it is stated that my married daughter K.Vasantha is not entitled to any right, title or interest in the schedule mentioned property. But no reason is assigned as to why she is not entitled to any right, title or interest in the schedule mentioned property. Similarly, at page 4 in Clause (e) of Ex.P4 Will (purported to have been executed by Dr.K.G.Krishnaswamy), it is stated that my married daughter K.Vasantha is not entitled to any right, title or interest in the schedule mentioned property. In this Clause also, no reason is assigned as to why she is not entitled.

¶419

Ex.P-11 is said to be a letter alleged to have been written by Mrs.Ramalakshmi Krishnaswamy in the letter head belonged to Dr.K.G.Krishnaswamy. It is dated back to 11^th May 1979.

¶420

Dr.Vasantha Balakrishnan has admitted that her mother only knew to sign in English, but she could not

¶421

¶422

read and write as she was an illiterate and did not know worldly affairs. What it is written in Ex.P-11 is:-

¶423

“I

¶424

Ramalaskhmi w/o, Dr.K.G.Krishnaswami hereby bequeath all my jewells and silver ware to my son Sri.K.Gopal. He alone will have the exclusive right to use them or dispose of them as he likes.”

¶425

As stated earlier, this letter is dated back to 11^th May 1979 signed by Mrs.Ramalakshmi and attested by Mr.K.G.Krishnaswamy.

¶426

It is significant to note here that this letter head belonging to Dr.K.G.Krishnaswamy does not bear the date on its top right corner. In the place of date, it is stated as ...198. This would lead this Court to presume that this letter head might have been related to the year 1980's. But it is dated as 11^th May 1979 ie., antedated. This was questioned by Mr.R.Thiagarajan that this letter under Ex. P-11 certainly could have been fabricated for the benefits of the second defendant Mr.K.Gopal and that Mrs.Ramalakshmi would not have parted

¶427

with her jewellery and silver ware. This would go to show that this letter (Ex.P11) might have been obtained from their parents by playing fraud, threat and coercion. Otherwise, it would have been written in the appropriate

¶428

¶429

paper after putting correct date.

¶430

From the face of Ex.P-11, it cannot be concluded as gift or testamentary disposition. It is also pertinent to note here that the Wills under Exs. P3 and P4 are concerned about immovables, while the letter under Ex.P11 is concerned about movables.

¶431

Why the movables have not been included in those Wills? Even if it is presumed that their parents had made up their minds to execute Wills in favour of their sons, why they had left out the movables. This has also been questioned by Mr.R.Thiagarajan and therefore, he has raised a suspicion over the genesis of Ex.P11 also. Further PW-2 Mrs.Malathi Seshadri in her proof affidavit has stated that as far as the movables in plaint “B” schedule are concerned, her father-in-law and mother-in-law had gifted those items to Mr.K.Gopal and they had delivered possession of the same during their life time. She has further stated that her mother-in-law had executed a letter dated 11.05.1979 to that effect which is in the possession of her brother-in-law Mr.K.Gopal along with the movables.

¶432

From the above passage, it is understood that

¶433

Mrs.Ramalakshmi had gifted the movables to Mr.K.Gopal and she had also delivered possession of the same during her life time. But she did not say that her mother-in-law had

¶434

¶435

gifted all the movables to the second defendant

¶436

Mr.K.Gopal excluding the jewelleries and silver wares. In the next line, she has stated in her proof affidavit that her mother-in-law had executed a letter dated 11.05.1979 to that effect which is in the possession of her brotherin-law Mr.K.Gopal along with the movables. This piece of evidence would crystallise that in connection with the delivery of possession of movables, Mrs.Ramalakshmi had executed a letter. The words “to that effect” connotes that the letter was executed with regard to the gift of movable properties including jewellery and silver wares.

¶437

It is also discerned from the evidence of PW-2 that the movables were gifted to Mr.K.Gopal by his mother during her lifetime. If it is so, what necessitated Mrs.Ramalakshmi to execute a letter under Ex.P-11? – Because over the envelope, in which the letter was placed, it is endorsed that

¶438

Ramalakshmi.”

¶439

If this endorsement is true, the movables

¶440

including the jewells and silver wares would not have been delivered to the second defendant during the lifetime of Mrs.Ramalakshmi.

¶441

¶442

Section 122 of the Transfer of Property Act defines the term “Gift”. It enacts that Gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.

¶443

when to be made. - Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.

¶444

Section 122 of the Transfer of Property Act is very clear that such acceptance must be made during the lifetime of the donor and while he is, ie., donor is still capable of giving.

¶445

Here PW-2 has spoken about the acceptance of movables by the second defendant Mr.K.Gopal during the life time of Mrs.Ramalakshmi. When the movables were accepted by Donee Mr.K.Gopal during the lifetime of his mother, the question of execution of the letter under Ex.P-11 “to that effect” would not have been arisen. Therefore, Ex.P-11 is shrouded with cloud of suspicion.

¶446

But PW-2 has

¶447

stated that the allegations made on behalf of the first defendant that the Wills were executed by the parents

¶448

¶449

under coercion, compulsion, fraud and suppression by her late husband were all false. Even to deny the allegations of coercion, compulsion, fraud, PW-2 does not have competency.

¶450

With reference to

¶451

Ex.P11, during the course of her cross-examination, PW-2 has answered to a question that in Ex.P-11, the name is mentioned as Mr.Ramalakshmi who is her mother-in-law. For an another question, she has answered that she was not present when the letter was written. When such being

¶452

the case, how she could have stated in her proof affidavit that all the movables were gifted to her brother-in-law ie., the second defendant Mr.K.Gopal during the lifetime of her mother-in-law and to that effect, a letter under Ex.P-11 was also written by her mother-in-law.

¶453

When she was asked

¶454

more about Ex.P-11 letter, during the course of her cross examination, she has stated that she did not know as to whether her mother-in-law was illiterate. She has also stated that probably she was illiterate. She has also stated that she could not say who had written Ex.P11 as she along with her husband and children were in Mumbai. This would go a long way to establish the fact that at the time of execution of the alleged letter under Ex.A11, she was not at all present in Chennai and was available only in Mumbai and therefore, she could not say about the execution of Ex.P11 letter and the gift said to

¶455

¶456

have been made by her mother-in-law in respect of movables in favour of the second defendant Mr.K.Gopal.

¶457

At page 66 of Volume II of the typed set of papers (Deposition), in the middle, she has stated that she did not know what were the jewelleries and silver wares mentioned in Ex.P11 and that she had not seen them. She has also stated that she did not know who wrote the contents of Ex.P11. But she would state that Ex.P-11 was given to her husband by the second defendant Mr.K.Gopal and only at that time, she had an occasion to see Ex.P11, but she did not have the original of Ex.P11 and it might be with Mr.K.Gopal. She has also stated that at the time of execution of the letter under Ex.P11, Mr.K.Gopal was not married. Here it is imperative on the part of this Court to refer Exs. P3 and P4 (Wills).

¶458

In this regard, Mr.R.Thiagarajan learned counsel has taken this Court to the covenants of the

¶459

Wills under Exs. P3 and P-4 respectively. Clause (b) of paragraph 5 in Ex.P3 and clause (c) of of paragraph 7 in Ex. P4 are relevant. In fact both the clauses are one

¶460

and the same. What Mrs.Ramalakshmi Krishnaswamy and Dr.K.G.Krishnaswami have stated in the above said respective paragraphs is that “the next son Mr.K.Gopal being a bachelor if for any reason he continues to be bachelor through out his lifetime his half right bequeathed to him by me under this Will shall be taken by

¶461

¶462

my first son K.Seshadri. If it so happens that K.Seshadri predeceases K.Gopal and even after that K.Gopal continues to be bachelor through out his life time then his half right bequeathed by me to him shall after his lifetime be taken by the children of K.Seshadri.”

¶463

Both the above paragraphs discloses the fact that their parents were interested in giving away the properties in favour of either the first son K.Seshadri or after his life time to his children.

¶464

They have therefore stated that the second defendant Mr.K.Gopal if for any reason continues to be bachelor through out his life time, his half right bequeathed under the Will shall be taken by first son K.Seshadri. The second portion would go to expound that if their first son K.Seshadri predeceases the second son K.Gopal and even after that Gopal continues to be bachelor through out his life time then his half right bequeathed to him shall after his lifetime be taken by the children of K.Seshadri.

¶465

PW-2 herself has admitted that the second defendant K.Gopal remained bachelor when the movables were gifted to him by Mrs.Ramalakshmi and even at the time of execution of Ex.P11 letter, he remained bachelor.

¶466

¶467

In this connection, Mr.R.Thiagarajan has argued that since K.Gopal remained bachelor, he was not in need of jewelleries because ladies alone would wear the jewelleries and not the male member of the family. If he got married at the time of execution of Ex.P11. We can understand that the jewelleries gifted by his mother would be utilised by his wife. But since he remained bachelor, the alleged gift of jewelleries made by his mother Mrs.Ramalakshmi Krishnaswamy seems to be unnatural and it could not be construed as a fair analogy.

¶468

On coming to the issue of genuineness of the Wills under Exs.P3 and P4, it may be better to have the reference of Section 68 of the Indian Evidence Act. Section 68 contemplates the proof of execution of document required by law to be attested. It enacts as

¶469

under:-

¶470

“S.68. Proof of execution

¶471

of document required by law to

¶472

be attested. - If a document

¶473

is required by law to be attested, it shall not be used as evidence until one attesting, witness at least has been called for the purpose of proving its execution, if there by an attesting witness alive, and subject to the process of the Court and capable of giving

¶474

¶475

evidence:

¶476

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908.”

¶477

Section 68 of the Indian Evidence Act lays down the principle that the documents required by law to be attested shall not be used as evidence until atleast one attesting witness is called for to proving execution if he is alive, and subject to the process of the Court.

¶478

This is not something as saying that the document, required to be attested by more than one witness, shall be proved by the evidence of only one witness. Section 68 only lays down the mode of proof and not the quantum of evidence required.

¶479

As already stated, PW-1 was examined DE BENE ESSE as contemplated under Order 26 of Madras High Court Original side Rules.

¶480

It may be relevant to note here that under Rule

¶481

¶482

3 of Order 26, a commission was appointed to examine PW-1 in his residential place at Hyderabad.

¶483

Order 26 Rule

¶484

4 of the Code of Civil Procedure paves the way to examine a witness by appointing a Commissioner.

¶485

As already

¶486

discussed in the foregoing paragraphs, though two witnesses appear to have attested the alleged Wills under Exs.P3 and P4, one of the attesting witness Mr.N.Subramanian alone was examined on behalf of the plaintiff to prove the Wills. The another attesting witness Mr.M.R.Krishnan who was a practising lawyer and also written the Wills, had passed away.

¶487

The harmonic reading of PW-1's evidence, both in chief as well as cross-examination appear to be self contradictory. What PW-1 says is that he met the father of the parties to the suit

¶488

Dr.K.G.Krishnaswamy and his wife. Then

¶489

Dr.K.G.Krishnasway told him that he needed a witness to attest the signature and therefore, he had volunteered to do it. He would further depose that at that time Dr.K.G.Krishnaswamy and his wife and one gentleman Mr.M.R.Krishnan were present and that Mr.Krishnaswamy

¶490

never told him anything. He would further depose that he

¶491

was taken inside the Sub-Registrar's Office where plaintiffs' father had signed first and then he (PW-1) had signed as attesting witness. Then Mr.M.R.Krishnan

¶492

¶493

signed. The same procedure was followed in the case of document of plaintiffs' mother.

¶494

At the time of filing the Testamentary Original Petition in OP Nos. 505 and 506, PW-1 had filed an affidavit as required under Clause (b) of Rule 4 to Order 25 of Madras High Court Original Side Rules in Form No. 56. In his affidavit, PW-1 has stated that on 3^rd day of February 1984, he was present together with Mr.M.R.Krishnan at the Sub – Registrar's Office, Mylapore.

¶495

On a combined reading of PW-1's evidence in chief as well as his affidavit, we can infer the presence of confliction and contradiction between these two statements.

¶496

In his chief examination, he did not say that he had been to Registrar's Office at Santhome. Instead he has stated that he had been to Santhome High Road for some other purpose, there he met Dr.K.G.Krishnaswamy and his wife. While so, Dr.K.G.Krishnaswamy had told him that he needed a witness to attest his signature. But in his affidavit filed along with the Testamentary Original Petition on 07.08.2001, he has stated that on 3^rd day of February 1984, he was present together with Mr.M.R.Krishnan at Sub Registrar's Office, Mylapore. His affidavit would itself show as if he had purposely been

¶497

¶498

to Sub Registrar's Office, Mylapore and waited there along with Mr.M.R.Krishnan. In his chief examination, he did not say like this.

¶499

On coming to his cross examination, he would state that he went to Registrar's Office to attest the documents of his nephew and that he went to Registrar's Office around midday and accidentally he met plaintiffs's father and mother. That is why Mr.R.Thiagarajan, learned counsel has called him as chance witness.

¶500

In his cross examination, he has also stated that in the second page of Exs. P1 and P2 (xerox copies of Exs. P3 and P4 Wills), he had attested the signature and that he did not know where Exs. P1 and P2 were prepared. Again he would state that he could not remember as to whether the words in Exs. P1 and P2, namely prepared and drafted by Mr.M.R.Krishnan was present at the time of his attestation and that he did not remember whether the contents of document in Exs. P1 and P2 were read over to the plaintiff's father and mother. He has also stated that he did not know who gave materials for preparing Exs. P1 and P2.

¶501

To a question, he has answered that he was not aware whether the plaintiffs' father had already signed in all the papers and that he did not aware whether the deceased plaintiff was present at the time of execution

¶502

¶503

and registration. In his re-examination by the deceased plaintiffs counsel he has stated that he did not remember whether plaintiff's father had signed each page in his presence and that the plaintiff's father was searching for somebody and enquired them. Whileso, he told him that be needed a witness and therefore, he had volunteered.

¶504

cross examination, this Court is able to understand that PW-1 Mr.N.Subramanian had been to Sub Registrar's Office, Santhome for the purpose of registering a document relating to his nephew, one Sankar, but he never stated this fact in his chief examination. It therefore leads this Court to presume that the answers given by PW1 in his cross examination is only an improved version to suit the purpose of the Testamentary Original Suits.

¶505

174a. No document relating to Mr.Sankar who is said

¶506

to be the nephew of PW-1 was produced to add an extra strength to the evidence of PW-1. Even in his cross examination, he has also stated that he did not go to Registrar's Office for attestation of Wills and that Dr.K.G.Krishnaswamy had told him that he was searching for a witness for attestation of a document and that he should come and help him out.

¶507

174b. He has continued

¶508

to answer in his cross examination that he had signed only in the last page of Ex.P4 and that he had not signed other pages. He has also added that he was not aware

¶509

¶510

that pages were changed in later under Ex.P4 and that he did not know what pages were changed after his signature. He has also answered that he was not aware of the second signature in Ex.P4 and later he might have signed.

¶511

In his cross

¶512

examination PW-1 has also stated that the addition in page 3 and 4 of Exs. P1, P2 (P3 and P4 Wills) were not known to him. In fact at the top of Ex.P-3 Will, there is an interpolation. Similarly at page 4 in between Clause (e) and (f) of Ex. P4 (Will), there is an interpolation. Unfortunately, nobody, either the testator or the scribe had counter signed the interpolation.

¶513

Under these circumstances, Mr.R.Thiagarajan, learned counsel has posed a question as to whether the evidence of the attesting witness (PW1) could be relied upon.

¶514

In this regard, Mr.R.Thiagarajan has drawn the attention of this Court to paragraph No. 4 of the affidavit filed by PW-1 along with the Testamentary Original Petitions wherein he has stated that the signature subscribed at the foot of the testamentary paper as of the party executing the same is in the proper handwriting of the said deceased and the name, signature and additions in page Nos. 4 and 5 also subscribed and written at the foot of the testamentary paper as of the

¶515

¶516

parties attesting execution of the same are in the proper and respective handwritings of the said Mr.M.R.Krishnan and of me this deponent respectively.

¶517

But this paragraph contains false information when comparing with the interpolation made under Exs. P3 and P4 which is left without counter signature.

¶518

Section 71 of the Indian Succession Act 1925, speaks about the effect of obliteration, interlineation or alteration in unprivileged Will. Section 71 enacts as under:-

¶519

“ Effect of obliteration, interlineation or alteration in unprivileged Will – No obliteration, interlination or other alteration made in any unprivileged will after the execution thereof shall have any effect, except so far as the words or meaning of the will have been thereby rendered illegible or indiscernible, unless such alteration has been executed in like manner as hereinbefore as required for the execution of the Will:

¶520

Provided that the Will, so altered, shall be deemed to be duly executed if the signature of the testator and the subscription of the

¶521

¶522

witnesses is made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will.”

¶523

The Provision of Section 71 itself is very clear to convey the message that no obliteration, interlineation or alteration made in any unprivileged Will after the execution thereof shall have any effect. But it will give adverse effect in so as the words interlineation are concerned, and it would give a different meaning that the Will would be illegible or indiscernible unless such alteration has been executed in like manner as required for the execution of the Will.

¶524

The proviso to Section 71 says that the

¶525

altered Will shall be deemed to be duly executed provided the testator has subscribed his signature in the margin or some other part of the Will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration and written at the end or some other part of the Will.

¶526

In the absence of any evidence as to when the alterations were made the presumption is that they were made after the Will and Codicil was registered.

¶527

¶528

Therefore, the testator's signature is very much essential in the alteration or obliteration or interlineation because it is the mandatory requirement of Section 71 of the Indian Succession Act.

¶529

Mr.R.Thiagarajan, learned counsel has adverted to that both the alleged Wills contain unattested interpolations and in this regard, PW-1 had stated that they were absent at the time when he had attested. He has also added that the affidavit of attesting witness also contains an unattested insertion and that this systematic tampering with documents after signing was very disturbing circumstances and thus these circumstances are called into question, to authenticate the said documents.

¶530

Mr.R.Thiagarajan, has also argued that PW-1 Mr.N.Subramanian was examined two time during the OP stage of the proceedings, once using a copy of the alleged Wills and again using the originals of the alleged Wills. After the Testamentary Original Petition was converted as Testamentary Original Suit, he was examined once on commission at Hyderabad and then at the Court in Chennai. His evidence contained in his affidavit, deposition in OP and in each of the two depositions in TOS contained many different version and as such the discrepancies in his evidence leads to the irresistible conclusion that this attesting witness had neither seen the executants sign, nor did the attesting

¶531

¶532

witnesses see each other while attesting the

¶533

instruments.

¶534

He has also argued that PW1's evidence would indicate that the registration of the alleged Wills was done in a perfunctory manner and no effort was made to ascertain whether executants knew or understood the nature and contents of documents. It is obvious to note here that the Registrar has not given any evidence.

¶535

Even on perusal of the evidence of PW-1 who is said to have attested the Wills, this Court finds that it makes clear that he did not witness the executants actually affix their signatures to the instruments and further he would depose that he was not aware whether the contents of the impugned typed Wills were read over, or explained to the executants and further PW-1's evidence would manifest that the statutory requirement of attestation is inherently lacking and missing in this case.

¶536

With reference to this issue, this Court would like to have reference to Sections 5 and 118 of the Indian Evidence Act 1872.

¶537

Section 5 contemplates that evidence may be

¶538

given on facts in issue and relevant facts. It reads that evidence may be given in any suit or proceeding of

¶539

¶540

the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.

¶541

Explanation.- This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure.

¶542

Section 118 of the Indian Evidence Act

¶543

contemplates “who may testify” . It enacts that all

¶544

persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.

¶545

Explanation. - A lunatic is not incompetent to

¶546

testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.

¶547

Under Section 118, all persons are competent to

¶548

testify, unless the Court considers that by reason of tender years, extreme old age, disease, or infirmity, they are incapable of understanding the questions put to

¶549

¶550

them and of giving rational answers. All grounds of

¶551

incompetency have been swept away by this section, under which competency of witnesses is the rule and their incompetency is the exception.

¶552

Bhimappa Vs. Allisab reported in AIR 2006 Kant 231 , everyone is not entitled or competent to give as witness before a Court unless he fulfils the requirements of the qualifications envisaged in Section 118.

¶553

In Ramachandra Rambux Vs. Champabai and Others

¶554

reported in AIR 1965 SC 354 , it is held that in order to Judge the credibility of the witnesses, this Court is not confined only to the way in which the witnesses have deposed or to the demeanour of witnesses, to look into

¶555

the surrounding circumstances, as well as the

¶556

probabilities, so that it may be able to form a correct

¶557

idea of the trustworthiness of the witnesses. The issue

¶558

namely whether the testator did execute a Will and if he

¶559

did, then whether it was duly attested by the witnesses, cannot be determined by considering the evidence adduced in the Court separately from the surrounding

¶560

circumstances which have also been brought out in the evidence, or which appear from the nature and contents of the document itself.

¶561

The Apex Court has also held in the very same

¶562

¶563

decision that in all the cases, in which a will is prepared under circumstances which arouse the suspicion of the Court that it does not express the mind of the testator, or that it was prepared under highly suspicious circumstances, it is for the propounder of the will to remove that suspicion (Reference is made to AIR 1929 PC 45).

¶564

It is also highlighted in the above cited

¶565

decision that where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. In such a case, the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator.

¶566

The Latin expressions onus probandi and animo

¶567

attestandi are the two basis features in the matter of the civil Court's exercise of testamentary jurisdiction. Whereas onus probandi lies in every case upon the party

¶568

propounding a will, the expression animo attestandi means

¶569

and implies animus to attest; it means intent to attest. The attesting witness must subscribe to the intent that the subscription of the signature made stands by way of a complete attestation of the will and the evidence is admissible to show whether such was the intention or not.

¶570

¶571

The onus probandi lies in every case upon the

¶572

party propounding the will and may satisfy the Court's conscience that the instrument as propounded is the last will of a free and capable testator, meaning thereby obviously, that the testator at the time when he subscribed his signature on to the will had a sound and disposing state of mind and memory and ordinarily, however, the onus is discharged as regards the due execution of the will if the propounder leads evidence to show that the will bears the signature and mark of the testator and that the will is duly attested.

¶573

196a. This

¶574

attestation however, shall have to be in accordance with Section 68 of the Evidence Act which requires that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution and the same is so however, in the event of there being an attesting witness alive and capable of giving the evidence. In the event of there being circumstances surrounding the execution of the Will shrouded in suspicion, it is the duty paramount on the part of the propounder to remove that suspicion by leading satisfactory evidence.

¶575

This proposition has been laid down by the

¶576

¶577

Apex Court in N.Kamalam (dead) and another Vs. Ayyasamy

¶578

and another reported in (2001) 7 SCC 503 . In the very same decision, the Apex Court has held that the signature of scribe of Will cannot be granted equality of status with signatures of attesting witnesses, which are required under Section 63(c) of the Indian Succession Act 1925.

¶579

On coming to the instant case on hand, the scribe Mr.M.R.Krishnan, Advocate, seems to have acted as attesting witness besides acting as scribe. In so far as the given case on hand is concerned, the evidence of PW-1 Mr.N.Subramanian is not credible as his evidence lost it's sanctity and therefore, the searching of further support to the case of the deceased first plaintiff who is the propounder of the Will, the signature of scribe Mr.M.R.Krishnan cannot be given equality of status as the signature of the attesting witness.

¶580

registration of Will, will not confer any power to Court to conclude that the Will is genuine. But it shall be proved and all the suspicious circumstances shrouded around the Will shall have to be dispelled by the party who has propounded the Will. This principle is well laid

¶581

down in H.Venkatachala Iyengar Vs. B.N.Thimmahamma and Others reported in AIR 1959 SC 443(1) . In this case,

¶582

¶583

Hon'ble Mr.Justice T.L.Venkatarama Ayyar while speaking on behalf of a three Judges Bench has observed as under:-

¶584

“The party propounding a Will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law.

¶585

¶586

Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Thus the question as to whether the Will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.

¶587

However, there is one important feature which distinguishes will from other documents. Unlike other documents 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 say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is

¶588

¶589

proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of Wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law.”

¶590

PW-2 Tmt. Malathi, who is the wife of the

¶591

deceased first plaintiff K.Seshadri, says in her cross examination, that she came to know about the Will only it was put up for probate. She has also stated that the will supposed to have been written in 1984 and it was filed for probate in the year 2001 and that she did not know about its existence till 2001 and she has also admitted that the Will came out after 8 years, after the death of Dr.K.G.Krishnaswamy and that in between 1993 and 2001, she did not ask her husband about the Will or as to

¶592

¶593

who would inherit the property of her father-in-law.

¶594

on assessing the evidences both oral and documentary and on considering the pleadings of the parties to the Testamentary Original Suit as well as to the suit for partition, this Court finds that the execution of the Wills in question are surrounded by several suspicious circumstances, which the propounder has failed to dispel satisfactorily. The first defendant has maintained that her mother lacked education, having been born and brought up in Burma. Ex.P5 passport belonged to the deceased Seshadri would go to show that he was also born in Rangoon, when their mother (Testatrix) was 18 years old.

¶595

The only sample of her writing is her first name written in English, which according to the testator trained her to write over the years. The alleged Will is typed in English. Admittedly, no draft Will has been produced to prove that the testatrix gave a detailed instructions and the language in which the instructions were given. obviously, there is no evidence to show that the Wills were explained to her nor that she gave instructions contained therein. In Ex.P-3 where the signatures of the testatrix find a place at page 2 of Ex.P3 Will seems to be very shaky and according to the first defendant Dr.Vasanatha Balakrishnan, she was at the age of 66 at that time. The testator was also aged

¶596

¶597

about 79 years on the relevant period.

¶598

As it is evident from the deposition of DW-1, her father was suffered with recurrent uremia requiring hospitalization due to prostate problem. The hurried manner of preparation of the alleged Wills with handwritten unattested interpolation, the unexplained difference of the property in the event of predeceasing the testatrix, location of execution, use of a chance witness and all the formalities being done on the same day would go to show the testator's precarious state of health. Advanced age and illness destroys capacity to understand the nature of dispositions.

¶599

The reason is nowhere explained, either in the plaint in T.O.S.Nos. 11 and 12 as well as in the written statement of the deceased first plaintiff Mr.K.Seshadri to the suit filed by the first defendant in C.S.No. 610 of 2003, for the utitlisation of service of P.W.1 for attestation. DW-1 has deposed in her evidence that the niece of the testator were living close to them on the way to the Sub Registrar's Office. However, none of them were invited to attest the Wills. It is pertinent to note here that the testator and the testatrix were lived in Gopalapuram which is close to the Sub-registrar's Office. Despite this fact, the execution was done not in the comfort of their home but at the Sub-registrar's office. The scribe/Advocate's home office was also only a

¶600

¶601

few buildings away from the Registrar's office.

¶602

In this connection, no explanation, as to why such an old couple needed to leave their hearth and home to execute their Wills, has been given by the propounder.

¶603

On perusing the Wills under Ex.P3 and P4, this Court is able to understood that no compelling, valid, plausible reasons were given for disinheriting the first defendant Dr.Vasantha Balakrishnan, in the estate of her parents. The reason, adduced on the part of the propounder of the Wills stating that there is no love last between the Caveator and her parents and almost she was an estranged daughter that there was so much alienation that there was no contact at all between them till the date of the parents, are not able to be digested.

¶604

In this connection, Mr.R.Thiagarajan, has

¶605

argued that the first defendant Dr.Vasanatha Balakrishnan had marked 19 letters addressed by testator and several photographs and passports of her parents to show that they were planning to relocate to USA to live with her. He has also argued that several letters from the testator to the grandchildren (children of the first defendant) were also marked. But no reason is given either by the testator or by the testatrix or by the propounder of the Will as to how the grand children of the testator and

¶606

¶607

testatrix have been excluded.

¶608

One of such

¶609

overwhelming circumstances is that the propounder of the Wills ie., deceased first plaintiff K.Seshadri might have played a prominent role and exerted undue influence and as such, the beneficiary has a duty to dispel that suspicion. It is understood from the covenants of the Wills, that the propounder K.Seshadri had proximity, opportunity and circumstance, as he was allotted major benefits to himself and his family.

¶610

PW-2 had produced Ex.P5 passport in respect of their claim to show that her husband Mr.K.Seshadri was in U.K from 12.01.1984 to 23.02.1984, which is a 42 days absence. It is relevant to note here that the alleged Wills were said to have been executed on 03.02.1984. Ex.P-5 nine other passports were examined spanning 23 years. It was found that the average duration of trips to overseas had been 3-5 days. Therefore, 42 days long absence seems to be unprecedented and unexplained. On verification of Ex.P5, this Court finds that it did not contain a visa to enter UK and otherwise pointed out that PW-2 had initially confidently state that she could produce all the passports, but she had not complied with her undertaking.

¶611

In this connection, Mr.R.Thiagarajan, has argued that Ex.P8 is an expired passport and it contain

¶612

¶613

Madras arrival stamp dated 28.05.1995. Ex.P-8 passport bearing No. P683756 was cancelled on 17.05.1995. In this regard PW-2 has deposed that if Ex.P-8 is removed, her husband's return on 28.05.1995 would not be known and that from Ex.P-8, it will not be known that my husband was in Chennai on 27.06.1995.

¶614

In support of his contention, Mr.R.Thiagarajan has placed reliance upon the decision in

¶615

Surendra Pal and others Vs. Saraswati Arora and another

¶616

reported in AIR 1974 SC 1999 . In this case, the Hon'ble Apex Court has observed as under:-

¶617

“ The propounder has to show that

¶618

the will was signed by the testator that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances the onus will be on the propounder to explain them to the satisfaction of the Court before the Will could be accepted as genuine: and where the caveator

¶619

¶620

alleges undue influence, a probate of the will must necessarily be granted if it is established that the testator had full testamentary capacity and had in fact executed it validly with a free will and mind. (AIR 1959 SC 426; AIR 1962 SC 567 and AIR 1924 PC 28, Foll.)

¶621

Apart from general considerations emerging from the nature of a will and the circumstances which not infrequently surround the execution of it, there are other matters which are peculiar to the times and the society and perhaps even to the person making the will and his or her family. Inferences arising from relationships between a testator and a legatee are certainly so dependent upon the peculiarities of the society or community to which the testator and the legatee belong, their habits and customs, their values, their mores, their ways of thinking and feeling, their susceptibilities to particular kind of pressures, influences or inducements that it is very difficult to reduce them to a general rule applicable at all times and every where so as to raise a presumption of undue influence from a particular type of relationship. The only kinds of relationship giving rise to such presumption are those contemplated in

¶622

¶623

S.111 of the Evidence Act. Any other presumption from a relationship must, to be acceptable, be capable of being raised only under S.114 of the Evidence act. Such presumptions of fact are really optional inferences from proof of a frequently recurring set of facts which make a particular inference from such facts reasonable and natural. AIR 1971 All 304, Rel.on. ”

¶624

In regard to Ex.P11 letter, Mr.R.Thiagarajan has argued that the second defendant Mr.K.Gopal had claimed his entitlement to jewelleris and silver wares which he bases of Ex.P-11. The first defendant Dr.Vasantha Balakrishnan has questioned as to how it is possible to Xerox a document which is sealed in a cover and placed in a Bank locker. She has also questioned as to how it is possible for the letter seemed to have been written in 1979 when the letter head itself was printed in 1980. He has also maintained that the second defendant claims that the sealed cover was placed in the locker which was opened by the testatrix in 1979 and she included his name to the account. The bank records under Ex.D39 was obtained by subpoena would go to show that the locker was opened by the second defendant in 1990.

¶625

According to Mr.R.Thiagarajan, Ex.P11 contains the word bequeath which reads like a Will, but it was attested by only one witness. The cover also bears the

¶626

100

¶627

endorsement that it was not to be opened until the demise of the testatrix. Admittedly, Ex.P11 does not contain a schedule.

¶628

In so far as this case is concerned, the circumstances that precluded the exercise of free and deliberate judgement are :

¶629

(1) The testator at the relevant period was aged about 79 years;

¶630

(2) At the crucial

¶631

time, the health condition of the testator was not in appreciable state as he had recurrent episodes of uremia due to prostate problem that required hospitalisation;

¶632

(3) The educational capacity of testarix and her inability to handle worldly affairs; and

¶633

(4) the manner and

¶634

mode of preparing, executing, attesting and registering the alleged Wills indicate manipulation.

¶635

The provisions of Section 213 of the Indian

¶636

Succession Act 1925 are very relevant to the instant case on hand. Sub-section (1) to Section 213 envisages that no right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters

¶637

101

¶638

of administration with the Will or with a copy of an authenticated copy of the will annexed.

¶639

This Section makes it clear that unless the Court of competent jurisdiction in India has granted probate of the Will under which, the right is claimed, or has granted letters of administration with the Will, no right as executor or legatee can be established in any Court of Justice.

¶640

As already discussed in the foregoing paragraphs PW-2 Mrs.Malathi Seshadri has admitted in her evidence that probably her mother-in-law was an illiterate. DW-1 Vasantha Balakrishnan has also stated in

¶641

her evidence that her mother was illiterate. She has also deposed that the letters under Exs. D11, 13, 16, 21,22, 23, 25 to 30, 33 and 36 were written by her father would

¶642

go to prove his love and affection showered on her and those letters would go to show the acceptance of her marriage by her father. She has also stated that there was no reason to disinherit her in the Wills in question.

¶643

With reference to Ex.P11 letter dated

¶644

11.05.1979, she has deposed that this letter is purported

¶645

to have been written on 11.05.1979 by her mother Ramalakshmi Krishnaswamy, but the alleged Wills were executed on 03.02.1984. Apparently the letter was

¶646

102

¶647

written even prior to the execution of the Wills. Under this circumstance, she has raised question as to what prevented both of her parents from making a mention about the existence of Ex.P-11 in the impugned Wills and that the non mentioning of Ex.P11 in the Wills created suspicion and this would vitiate the execution, attestation and registration of the Wills.

¶648

She has expressed her anguish over the execution of the Wills and stated in her evidence that in the impugned Wills nothing has been provided by her nor any valid, plausible reasons have been stated in the impugned Wills as to why she had been totally disinherited from the Estate of her father as well as mother. She has also stated that if her parents had been upset over her marriage, for having married a person not belonging to their community, certainly they would have indicated their unpleasantness in the Will. But however no such thing has ever been mentioned or said in both the Wills.

¶649

As indicated in the body of this Judgment, the interpolation in both the Wills have not been attested by the testatrix and testator. Similarly, the corrections in the impugned Wills have also not been initiated or attested by the testator or testatrix. Under these circumstances, DW-1 has claimed that the Wills are improbable, unnatural and vitiated by suspicious and

¶650

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fraudulent circumstances. She has also deposed that though her parents had subscribed their signature in both the Wills projected by late K.Seshadri, the impugned Wills did not reflect their true state of mind as they were subjected to physical and mental trauma and stress on account of their age, ailments and undue influence exerted by her brother K.Seshadri who had been controlling their movements at the relevant point of time. Besides this, she has also deposed that the signatures of her father and mother appear to be very shaky which is also one of the vitiating circumstances to indicate that her brother Mr.K.Seshadri had practiced fraud, coercion, threats for bringing about the impugned Wills unmindful of the consequences that such fraudulent Wills would not pass the test of judicial conscience at a later date in a Court of law.

¶652

As stated by DW-1 Dr.Vasantha Balakrishnan if the Wills and the purported letter were genuine, there was no necessity for secrecy. The best evidence could be the evidence of the person who had presented the Wills for probate. But unfortunately he was not able to be examined as he had passed away. The letters produced by PW-1 would go to show that her association with her father was very cordial.

¶653

As observed by the Divison Bench of the Apex

¶654

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¶655

Court in Adivekka and Others vs. Hanamavva Kom Venkatesh

¶656

(Dead) by Lrs. And Another reported in (2007) 7 SCC 91 cited supra, where there are suspicious circumstances, the onus would be on the propounder to remove suspicions by leading appropriate evidence.

¶657

As stated in the earlier paragraphs, PW-1 Mr.N.Subramanian has filed his affidavit at the time of filing the Testamentary Original Petitions as an attesting witness. Mr.M.R.Krishnan who is said to be the scribe as well as attesting witness has not filed any affidavit as he had passed away.

¶658

Admittedly, the consent affidavit has been filed by the second defendant Mr.K.Gopal to grant probate or Letters of Administration in favour of the plaintiffs. In fact he has not gone to the box. But it is kept in dark as to in whose custody the Wills under Exs. P3 and P4 were placed till those Wills were projected for probate.

¶659

As argued by Mr.R.Thiagarajan, when the execution of the Wills is not proved, the question of attestation would not arise. The circumstances arising out of this case would lead this court to presume that the execution of the Wills under Exs. P3 and P4 are not proved. Indeed the affidavit of attesting witness

¶660

105

¶661

Mr.N.Subramanian seems to have been attested by one S.Balakrishnan, Notary Public. But this S.Balakrishnan has failed to counter sign the corrections made in his (PW-1's) affidavit.

¶662

In so far as the present case on hand is concerned, there is reason to presume that the propounder himself had taken a prominent part in procuring the Will which confer a substantial benefit on him (this is also a circumstance to taken into account) and therefore, the burden is on the propounder to remove the doubts by clear and unassailable evidence. Besides this, the disposition made in the Will seems to be unnatural, improbable and unfair in the light of the above circumstances. There are

¶663

also other indications in the Will to show that the testator and testatrix's mind was not free. This circumstance would naturally lead the Court to infer

¶664

legitimate suspicion but those suspicions have not been satisfactorily and clearly dispelled by the propounder of the Will.

¶665

Having regard to all the related facts and circumstance, this Court is of the considered view that the deceased plaintiff K.Seshadri and the second defendant Mr.K.Gopal got the Wills under Exs. P3 and P4 executed in their favour by their parents by practicing fraud, coercion and undue influence taking advantage of their old age. Accordingly, issues in Group No.I viz.,

¶666

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¶667

Issue No. 1 in T.O.S.Nos. 11 and 12 of 2002 and Issue Nos. 2 and 3 in C.S.No. 610 of 2003 are answered in favour of the first defendant Dr.Vasantha Balakrishnan.

¶668

228. Group No. II (Issue No.2) in T.O.S.Nos. 11 and

¶669

12 of 2002 and Issue Nos. 1 and 5 in C.S.No. 610 of 2003:

¶670

These issues have also been discussed in detail during the discussion of issues under Group No.I.

¶671

No doubt, the Wills under Exs. P-3 and P4 are concerned about the immovable property; whereas Ex.P11 letter is concerned about immovable properties. All these documents under Exs. P3 and P4 and P11 are found to be not proved and their creation or genesis has been construed as inherit improbable.

¶672

The plaint in C.S.No. 610 of 2003 contain two schedules. Schedule “A” is the immovable property; whereas schedule “B” is the movable properties, particularly jewelleries and Silver vessels and furnitures. PW-2 alone says that the immovable

¶673

properties were gifted to second defendant Mr.K.Gopal but

¶674

this Court has concluded that the evidence of PW-2 does not inspire confidence and no amount of evidentiary value could be attached with her evidence.

¶675

230a. Having been made an analytical approach with

¶676

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the testimonies of P.Ws.1 and 2 and D.W.1 and an empirical study of the pleadings of the parties concerned with the help of the documentary evidences produced on behalf of both the sides, this Court finds that the question as to why this unfair dispossession has not been answered either by the propounder of the Will or by P.W.2.

¶678

230b. As already recorded by this Court in the opening paragraphs of this Judgment, the above said question inherently contains the answer saying that the dispossession made by the testators as well as the testatrix in their respective Wills is unfair.

¶679

In so far as the second defendant is concerned, in whose favour those movable items were said to have been gifted by their mother has not chosen to enter into the box to refute the claim of the first defendant. It is only for him to come forward to say, about the non availability of “B” schedule property. As rightly argued by Mr.R.Thiagarajan, an adverse inference is to be necessarily drawn against him and in favour of Dr.Vasantha Balakrishnan and therefore, it cannot be decided that she is not entitled to her 1/3^rd share in the “B” schedule property. Instead this Court finds reason about the availability of the “B” schedule property and therefore, concludes that the first defendant is entitled to have her 1/3 rd share in the properties described

¶680

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under “A and B” schedule of the plaint in C.S.No. 610 of 2003.

¶682

Issues in Group No.III, ( Issue Nos. 4 and 6 in C.S.No. 610 of 2003): since the issues in Group No.II have been answered in favour of the first defendant, Dr.Vasantha Balakrishnan concluding that she is entitled 1/3^rd share in the properties specified in “A & B” schedule of the suit in C.S.No. 610 of 2003, this Court finds that she is also entitled to get mesne profits. Accordingly, the issues in Group No.III are answered.

¶683

In the result, the Testamentary Original Suits

¶684

in T.O.S.Nos. 11 and 12 of 2002 are dismissed. In so far as the suit in C.S.No. 610 of 2003 is concerned, a preliminary decree is passed in favour of Dr.Vasantha Balakrishnan (plaintiff in C.S.No.610 of 2003) as she is entitled to have 1/3^rd share in the properties described under “A & B” schedule of the plaint in C.S.No. 610 of 2003. In so far as the mesne profits is concerned, it will be decided in a separate proceedings under Order 20 Rule 12 of the Code of Civil Procedure which may be initiated by Dr. Vasantha Balakrishnan at the time of final decree proceedings.

¶685