The High Court dismissed an original suit seeking a decree for the grant of probate of a will. The court held the propounder failed to clear doubts regarding the document's genuineness due to unexplained delays, lack of notary registration, and discrepancies in beneficiary payments.
The Testamentary Original Suit was dismissed with no costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.04.2014
CORAM:
THE HONOURABLE MR.JUSTICE K.K. SASIDHARAN
T.O.S.No.30 of 2008
Prayer:- Petition filed under Sections 222 and 276 of the Indian Succession Act XXXIX of 1925 for grant of probate.
For Defendants : Mr.K. S. Madhavan
J U D G M E N T
This Testamentary Original Suit at the instance of the
legatee of a Will dated 28 February 1991 executed by Smt. Rajam Sarangachari seeks a decree directing probate of the said Will.
The facts:
to grant probate of the Will stated to have been executed by his mother Smt. Rajam Sarangachari. The plaintiff contended that Smt. Rajam Sarangachari executed her last will and testament on 28 February 1991 in the presence of
two witnesses. The plaintiff was appointed as the executor https://hcservices.ecourts.gov.in/hcservices/
of the Will. The Will contained certain stipulations with
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regard to the disposal of movable and immovable properties
left by the testatrix. The house property bearing Old No.43-A, New No.54, Thambiah Street, West Mambalam, Chennai was allotted to the plaintiff and his brother Thiru J.S. Sridharan/first respondent in O.P.No.136/2008. Smt. Indhira Rajamani/second respondent in O.P.No.136 of 2008 is the daughter of the testatrix.Respondents 3 and 4 in O.P.No.136 of 2008/Defendants 1 and 2 in T.O.S.No.30 of 2008 are the
children born to the pre-deceased daughter of the
testatrix. The testatrix wanted the executor to sell the jewels after her death and to apportion the sale amount among the plaintiff, Thiru J.S. Sridharan, Smt. Indhira Rajamani and defendants 1 and 2 equally. The testatrix died on 24 January 2001. The plaintiff long thereafter filed Original Petition with a prayer to grant probate of the Will.
Defence
disputing the execution of the Will. According to the first defendant, the testatrix was not in a sound and disposing
state of mind while executing the Will. The Original https://hcservices.ecourts.gov.in/hcservices/ Petition for grant of probate was filed long after the
period of limitation. According to the first defendant, the plaintiff fabricated the Will to grab the property from the legal representatives of Smt.Rajam Sarangachari, who died intestate on 24 January 2001.
Issues:
"(i) Whether the Will executed by the
deceased Tmt. Rajam Sarangachari on 28 February 1991 is true, genuine and valid?
(ii) Whether the plaintiff is entitled
for the grant of probate?
(iii) Whether the defendants have locus-
standi to oppose the grant of probate in favour of the plaintiff?
(iv) To what other relief the plaintiff is entitled to?"
The Evidence:
though the Will was executed on 28 February 1991 and his https://hcservices.ecourts.gov.in/hcservices/ mother died on 24 January 2001, he found the Will only in
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wishes of the testatrix, jewels were sold and the proportionate amount at the rate of Rs.25,000/- was given to his sisters and the father of the defendants as per
Exs.P.2, P.3 and P.4. P.W.1 denied the contention regarding fabrication of Will.
deposed that he took the notary with him to the house of the testatrix. He was known to the husband of the testatrix as both worked together in the very same establishment. The Advocate/Notary took instructions on the first day and Will was drafted subsequently. The Will was executed on 28 February 1991. The testatrix signed the Will at the first instance. Thereafter notary public signed. P.W.2 and the other witness Balu, who was working under the Notary signed thereafter. P.W.2 admitted that he was running a typewriting institute at Thandapani Street and that he was also a short-hand writer. P.W.2 denied the suggestion that the testatrix did not sign the Will in the presence of the notary or witnesses.
According to D.W.1 he was not in talking terms with his https://hcservices.ecourts.gov.in/hcservices/ father. His mother died in the year 1981 and thereafter
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his father got re-married in 1983, when he was eight years
old. D.W.1 disputed the genuineness of the Will in his evidence.
Summary of Submissions:
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plead and prove as to why the Original Petition was filed after a period of seven years. The learned counsel contended that P.W.1 has given evidence that he came to know of the Will only in 2006. However the very same witness deposed that the amount payable to the other beneficiaries were given in 2001 itself. It was further contended that a close reading of the Will would clearly show that the date was not put originally even by the notary and it was substituted later. This would amount to material alteration which requires attestation. According to the learned counsel, Ex.P.1 Will was cooked up by the plaintiff long after the death of his mother.
Discussion:-
consideration in this Testamentary Original Suit is whether https://hcservices.ecourts.gov.in/hcservices/ the plaintiff proved the Will in accordance with Section 63
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(c) of the Indian Succession Act and Section 68 of the
Indian Evidence Act.
Issue Nos.1 and 2 – Resolution:
his contention that he has already paid the amount due to the defendants, his brother and sister in accordance with the stipulation made by the testatrix. Ex.P.2 is the receipt issued by Mrs.Jayashree Sridharan, wife of Thiru J.S. Sridharan, who is none other than the son of the https://hcservices.ecourts.gov.in/hcservices/ testatrix. It is to be mentioned here that as per the Will,
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amount should be given only to the sons and children of the deceased daughter. Mrs. Jayashree Sridharan, though is not a beneficiary under the Will executed the receipt. The receipt was typed in the letter pad of the plaintiff. Ex.P.3 is the receipt issued by Mrs. Indhira Rajamani, daughter of the testatrix in token of receipt of a sum of Rs.25,000/- due to her. Ex.P.4 is the receipt issued by the father of the defendants acknowledging receipt of a sum of Rs.25,000/- on behalf of the defendants. The receipts in
question were all executed in the letter head of the plaintiff in 2001, and it contained a reference about the Will. However, the plaintiff in his evidence as P.W.1 had deposed that he came to know of the Will only in 2006. According to P.W.1 he did not know as to when his brother
came to know about the Will. In case Ex.P.1 Will was the Will executed by the testatrix, and referred to in Exs.P.2
to P.4, nothing prevented the plaintiff from giving evidence that it was pursuant to the said Will, Rs.25,000/each was paid to the beneficiaries named under the Will.
Exs.P.2 to P.4 would indicate that there was a Will.
However, there is no proof before this Court to
substantiate that Ex.P.1 was the Will referred to in Exs.P.2 to P.4. The whole transaction is suspicious.
that it was actually drafted by him. The notary did not put https://hcservices.ecourts.gov.in/hcservices/ the date. In fact, the Will itself does not contain any
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date and it was subsequently filled up with pen. The
notary was not examined. According to P.W.1, he did not know as to who drafted the Will. However, P.W.2 deposed that it was drafted by Thiru K. Rama Moorthy, a notary, who also signed the Will. Since the Advocate did not mention anything about his capacity in which he signed the Will, P.W.2 deposed that he was not aware as to whether the notary signed as an attesting witness or identifying witness to the Will.
Exs.P.2 to P.4 indicating payment of the amount to the beneficiaries as early as on 28 February 2001, which is within one month of the death of testatrix. However, when it comes to the execution of the Will, P.W.1 says that he came to know of the Will only in 2006. The plaintiff has no case that the Will was with his brother and he only made the payment as per Exs.P.2 to P.4. The fact remains that Exs.P.2 to P.4 were all typed in the letter head of the plaintiff. There are certain fundamental defects with regard to the execution of the Will. The plaintiff has not
taken steps to clear the doubt with regard to the https://hcservices.ecourts.gov.in/hcservices/ deficiencies and suspicious circumstances surrounding the
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execution of will.
Settled Legal Principles:-
In the case of Will, the testator is not alive and as such the burden is on the propounder of the Will to prove due execution. Section 63(c) of the Indian Succession Act lays down the requirement of a valid Will. The statute provides that the Will shall be attested by two or more witnesses each of whom has seen the testator signing or affixing his mark to the Will. There is a further requirement that the witnesses have to sign the Will in the presence of the testator. The Will must therefore be proved in the manner indicated under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act.
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must sit in the arm chair of testatrix and must arrive at a finding as to whether the document before it was the one executed by the testatrix out of her free will. The Court must come to a definite conclusion with regard to the genuineness of the Will and that it is not fraught with any kind of suspicious circumstances.
The precedent:-
B.N. Thimmajamma (AIR 1959 SC 443), indicated the legal principles regarding proof of a Will.
"( 1 ) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
( 2 ) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness 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.
( 3 ) Unlike other documents, the will speaks from the death of the testator and https://hcservices.ecourts.gov.in/hcservices/
therefore the maker of the will is never
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available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
( 4 ) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant
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upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
( 5 ) It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
( 6 ) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.”
circumstances as suspicious in nature.:
"23. Suspicious circumstances like the
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following may be found to be surrounded in the execution of the will:
(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
(ii) The condition of the
testator’s mind may be very feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
appear to be the result of the testator’s free will and mind.
(v) The propounder takes a
prominent part in the execution of the will.
(vi) The testator used to sign blank papers.
light of the day for long.
essential facts.
Padmini, (2009) 1 SCC 354 , held that even in the absence of
suspicious circumstances surrounding the Will, the
propounder must satisfy the conscience of the Court with
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regard to the due execution of Will.
"19. When there are suspicious circumstances regarding the execution of the will, the onus is also on the propounder to explain them to the satisfaction of the court and only when such responsibility is discharged, the court would accept the will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions of the testator’s mind, the dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator’s mind was not free. 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."
Godi Jayarami Reddy, (2011) 5 SCC 65 , indicated the duty
of the Court in evaluating the genuineness of the Will.
https://hcservices.ecourts.gov.in/hcservices/ The Supreme Court said:
"27. It is well settled that the
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court must put itself as far as possible in the position of a person making a will in order to collect the testator’s intention from his expressions; because upon that consideration must very much depend the effect to be given to the testator’s intention, when ascertained. The will must be read and construed as a whole to gather the intention of the testator and the endeavour of the court must be to give effect to each and every disposition. In ordinary circumstances, ordinary words must bear their ordinary construction and every disposition of the testator contained in the will should be given effect to as far as possible consistent with the testator’s desire."
intestacy. However, that would not mean that the propounder is relieved of the obligation to prove the genuineness and due execution of the Will.
as to whether it was the very same Will (Ex.P.1), which was referred to in the said documents. Even though the https://hcservices.ecourts.gov.in/hcservices/ plaintiff relied on Exs.P.2 to P.4 to the effect that
payments were made immediately after the death of testatrix
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and in accordance with the condition of will, he has come
up with a case that he has seen the Will for the first time only in 2006. The evidence of P.W.1 goes contrary to the recitals in Exs.P.2 to P.4. This is more on account of the
fact that the notary failed to indicate as to whether he has entered the execution of this document in his register, kept under the Notaries Act and Rule. The plaintiff has not summoned the notary register maintained by the notary. The plaintiff has just said that the notary is no more. The Will was typed keeping the place earmarked for "date" blank. It was later filled up with pen. There is no evidence before this Court as to who filled up the date and with whose handwriting it was made. The plaintiff was expected to clear all these doubts. However, the plaintiff miserably failed in all aspects to prove the doubt with regard to due execution of Will. Therefore I am of the view that the plaintiff is not entitled to a decree on the basis of the Will.
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sd/.K.K.S.J 02.04.2014 //Certified to be a true copy// Dated this the day of 2014. R.s/25.06.2014 COURT OFFICER
From 25.09.2008 the Registry is issuing certified copies of the Order/Judgment Decree in this format.
3 issues framed by the court
Whether the Will executed by the deceased is true, genuine and valid?
Whether the plaintiff is entitled for the grant of probate?
Whether the defendants have locus standi to oppose the grant of probate?
Colour shows how this judgement treated each authority
2 provisions across 2 enactments
Plaintiff (Legatee)
First Defendant
Second Defendant
K.K. Sasidharan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
