Court held a Will genuine and granted Letters of Administration with Will annexed to plaintiffs, legal representatives of the testator's son, rejecting defenses of suspicious circumstances and delay.
Letters of Administration with Will annexed granted to Plaintiffs; directed to execute security bond and render annual accounts.
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
RESERVED ON: 10.11.2017
PRONOUNCED ON: 12.12.2017
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
TOS.No.34 of 2013
1. M.Sarumathi
2. I.Padmini
3. T.Banupriya
4. M.Vijayakumar Plaintiffs
Vs
1. V.Jaya
2. K.Chandrasekar
3. K.Jaisankar
4. K.Poornima
5. M.Shobana Defendants
Prayer:- This Testamentary Original Suit is filed under Sections 232 and 276 of the Indian Succession Act for grant of Letters of Administration with the Will annexed.
For Plaintiffs : Mr.N.Jayabalan For Defendants : Mr.G.Jayachandran
JUDGEMENT
OP.No.385 of 2011 had been filed, seeking Letters of Administration
with the Will annexed with respect to the Will produced by the Petitioners dated 6.8.1988 said to have been executed at Chennai by K.Abaranji Ammal, who died on 4.9.1988 at Chennai.
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her legal representatives, her two daughters, Jaya, Panchali @ K.Devaki and a son, K.Mohan. Even before filing of the OP, Panchali @ K.Devaki and K.Mohan died. They left behind their legal representatives.
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Respondent had also acknowledged the same by a separate letter dated 1.10.1992, which was named as the release deed.
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true?
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K.Mohan. Ex.D1 is the advocate notice dated 9.8.2008 and Ex.D2 is the reply notice dated 26.8.1988 and Ex.D3 is the certified copy of the plaint in OS.No.1163 of 2010 and Ex.D4 is the certified copy of the written statement.
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Panchali @ Devaki had also died, her husband and children were shown as the Respondents 2, 3, 4, 5 and 6. Among the Respondents, except the husband of Panchali @ Devaki, others have entered appearance through counsel and had objected to grant of Letters of Administration and consequently, OP.No.385 of 2011 had been converted into TOS.No.34 of 2013.
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statement. In the written statement, it has been stated that K.Abaranji Ammal was suffering from cancer and was in coma stage for more than one year prior to her death. This was taken up as a suspicious circumstance, which naturally would have prevented K.Abaranji Ammal from executing the Will, much less the Will dated 6.8.1988. It was specifically pointed out that K.Abaranji Ammal died on 4.9.1988 within one month from the date of the Will. It was further pointed out as yet another suspicious circumstance that the daughters of K.Abaranji Ammal were completely excluded from any bequeath and it was stated that this was unnatural since the relationship with the daughters had with K.Abaranji Ammal was cordial.
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“My mother in law, died in the suit property on 4.9.1988. At the time of death of my mother in law, she was suffering from breast cancer. My mother in law was taking treatment in hospital at Teynampet. I do not know the name of the hospital but the above said hospital is a private hospital. I deny the suggestion that at the time of ailment of my mother in law, the first Defendant, Mrs.Jaya only taken care of her. Witness adds: i only took care of my my mother in law at the time of her ailment. I deny the suggestion that even during the life time of my father in law, my mother in law was seriously fell ill I deny the suggestion that at the time of death of my mother in law, she was on coma stage. I deny the suggestion that my mother in law died when she was critical ill in the hospital.”
follows:-
“My husband, Mr.Mohan died on 28.10.2001 due to lungs cancer”
not put in cross examination.
“I state that I was present when said K.Abaranji Ammal executed the Will, in the presence of two witnesses and requested them to sign in Will as witnesses and when the said witnesses attested Will at the request of the Testatrix and in her presence and in the presence of each other.
I state that in spite of her sufferings from caner Tmt.K.Abranji Ammal was mentally alert and she was in free disposition of mind and she executed the Will without any coercion or undue influence from any other person.”
been attested by two witnesses, K.S.Thirunavukarasu and P.Subramani. Both
the witnesses were examined as PW.2 and PW.3 respectively. They were both
also subjected to cross examination. During the cross examination, PW.2 has
stated as follows:-
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“ Ex.P1 Will executed by my sister in law, Abranji Ammal and I have signed Ex.P1 as the first attesting witness. I deny the suggestion that the signature of the first attesting witness found in Ex.P1 is not mine. I deny the suggestion that the signature found in the proof affidavit is alone my signature and that the signature found in Ex.P1 is not mine.
I explained the contents of the Will to Abranji Ammal in Tamil and subsequently the affixed her left thumb impression in the Will Ex.P1. It is correct to state that in the Will, Ex.P1 it was incorporated that the contents were explained to the Testatrix in Tamil and only after understanding the same, she affixed her thumb impression on it.”
challenged by the learned counsel for the Defendants, who stated that the affidavit of K.S.Thirunavukarasu had been signed in Tamil and was not in proper jurat form and had called upon court to reject the entire affidavit filed by K.S.Thirunavukarasu since it is not in proper jurat form. The learned counsel
has relied on Order 15 Rule 7 of the Original Side Rules, which is as follows:-
“Order 15 Rule 7:- when an affidavit is sworn or affirmed by a person who appears to the officer taking the affidavit to be illiterate, blind, or unacquainted with the language in which the affidavit is written, the officer shall certify in the jurat that the affidavit was read, translated or explained in his presence to the deponent, that the deponent seemed perfectly to understand it, and made his signature or mark in the presence of the officer as in Form No.8, otherwise the affidavit shall not be used in evidence.”
The learned counsel has also relied on Form No.8, in which jurat form is given.
According the learned counsel for the Defendants, the entire evidence of PW.2 has to be rejected.
“ 63. Execution of unprivileged wills .-Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged,] or a mariner at sea,
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shall execute his will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) 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 acknowledgment 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.”
“ 68. Proof of execution of document required by law to be attested.
If a document 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 be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
Provided that it shall 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 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.”
can be examined to prove a Will. In this case, even though the evidence of
PW.2 is to be rejected in toto, which of course, is not the case, the Plaintiffs can
always call upon to their assistance the evidence of PW.3, P.Subramani. PW.3
had also filed his proof affidavit. He was also cross examined and during cross
examination, he had stated that as follows:-
“”It is true to say that Abranji Ammal was suffering from cancer
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before her death. I deny the suggestion that Abranji Ammal was in coma stage at the time of her death. She was conscious. Abranji Ammal had executed Ex.P1 Will on 6.8.1988.”
singed in his presence and that she was conscious. He had further stated
during the cross examination as follows:-
“She expressed her desire to execute a Will in favour of her son Mohan in respect of the subject matter of the property. She has stated only that. After that PW.2 and my son in law went and got typed the Will in English and brought back to home and PW.2 read over and explained to me since I am not acquainted with English. Thirunavukarasu, PW.2 read over to me in English and explained to me in Tamil. I deny the suggestion that Thirunavukarasu himself not acquainted the English.”
He further asserted as follows:-
“ I deny the suggestion that on 6.8.1988 Abaraji Ammal did not execute any Will. Abranji Ammal affixed her left thumb impression in the Will and not signed it. She has affixed her thumb impression only in the last page of Ex.P1 Will.”
K.Abaranji Ammal in her free and sound disposing state of mind.
Shedage) in paragraph 8, the Honourable Supreme Court had held as follows:-
“ 8. The requirement of proof of a will is the same as any other document excepting that the evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the court either believes that the will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular
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case, to act upon the supposition that the will was duly executed by the testator, then the factum of execution of will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and way layers.
The conscience of the court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well-founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict — positive or negative.”
others) it was held in paragraph 14 as follows:-
“ 14. The propounder of the Will has to show that the Will was signed by the testator; that he was at the relevant time in sound disposing state of mind; that he understood the nature and effect of dispositions and had put his signatures to the testament of his own free will and that he had signed it in the presence of the two witnesses who attested in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. DW 2, the scribe, in his testimony has categorically stated that the Will was scribed by him at the dictation of the testator. The two attesting witnesses have deposed that the testator had signed the Will in their presence while in sound disposing state of mind after understanding the nature and effect of dispositions made by him. That he signed the Will in their presence and they had signed the Will in his presence and in the presence of each other. In cross-examination, the appellants failed to elicit anything which could persuade us to disbelieve their testimony. It has not been shown that they were in any way interested in the propounders of the Will or that on their asking they could have deposed falsely in court. Their testimony inspires confidence. The testimony of the scribe (DW 2) and the two attesting witnesses (DWs 3 and 4) is fully
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corroborated by the statement of the handwriting expert (DW 5). The Will runs into 6 pages. The testator had signed each of the 6 pages. The handwriting expert compared the signatures of the testator with his admitted signatures. He has opined that the signatures on the Will are that of the testator. In our view, the Will had been duly executed.”
the learned counsel for the Defendants that they had filed a suit for partition in O.No.1163 of 2010 on the file of the VII Additional City Civil Court, Chennai. It has been stated that in reply to the notice issued prior to the institution of the said suit, the counsel, who issued a reply notice, had stated that the Will was dated 5.8.1988. It was pointed out that this discrepancy in the date is very fatal and that the Will dated 6.8.1988 is a fabricated will. To disprove this fact, the Plaintiff had examined PW.4, Advocate, who had issued the reply notice, by name, Bharathi. He was examined as PW.4 and documents were marked and he had also taken a stand that he would not be able to concentrate on his legal profession. This document may not directly come to the assistance of the Plaintiffs, but they are relevant facts to be considered to explain the mistake in the date of the Will.
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typographical error and this court is not prepared to give much weightage to the same.
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1684 (Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee( dead) by legal representatives) wherein it has been stated that debarring natural heirs should not raise any suspicious circumstance.
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of Administration with the Will annexed.
C.V.KARTHIKEYAN, J.
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sum of Rs.25,000/- (Rupees twenty five thousand only) in favour of the Assistant Registrar (O.S.II), High Court, Madras. The Plaintiffs are further directed to render true and correct accounts once in a year.
12.12.2017
Index:Yes/No
Web:Yes/No
Speaking/Non Speaking
Srcm
To:
1. The Record Keeper, VR Section, High Court, Madras
Pre-Delivery Judgement in
TOS.No.34 of 2013
3 issues framed by the court
Whether the Will dated 6.8.1988 executed by the deceased is true and genuine?
Whether the delay in filing the Letters of Application after the demise of the Testatrix is fatal to the case?
Whether the beneficiaries have discharged their obligation to pay the sum bequeathed to the daughters?
Colour shows how this judgement treated each authority
Madhukar D. Shende Vs. Tarabai Aba ShedageExplained¶29
2002 1 CTC 244 (Madhukar D. Shende Vs. Tarabai Aba Shedage)
Sridevi and others vs. Jayaraja Shetty and othersExplained¶29
2005 1 CTC 443 SC (Sridevi and others Jayaraja Shetty and others)
Thayammal Vs. Ponnusamy and anotherRelied on¶34
2008 8 MLJ 647 (Thayammal Vs. Ponnusamy and another)
Rabindra Nath Mukherjee and another vs. Panchanan BanerjeeRelied on¶34
AIR 195 SC 1684 (Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee)
4 provisions across 2 enactments
V. Jaya
K. Chandrasekar
C.V. Karthikeyan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
