IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.6 .2010 CORAM THE HONOURABLE MRS.JUSTICE PRABHA SRIDEVAN AND THE HONOURABLE MR.JUSTICE G.M. AKBAR ALI O.S.A.No.73 of 2008 Pushpa Bala Jagam ... Appellant Vs 1.K. Ananda Kumar 2.K. Subbulakshmi 3.K.H. Rao .. Respondents The appeal has been preferred under Order XXXVI Rule 9 of O.S. Rules read with Clause 15 of the Letters Patent against the order made in TOS No.40 of 1993 dated 9.4.2007 passed by the learned single Judge of this Court. For Appellants : Mr.P.B. Ramanujam For R.1 to R.3 : Mr.T.V. Sekar J U D G M E N T
G.M. AKBAR ALI,J.,
The appeal filed against the order dismissing the suit in TOS No.40 of 1993. The plaintiff, who filed a petition under Sections 222, 255 and 276 of the Indian Succession Act, 1925 to grant probate, which was converted into testamentary original suit, is the appellant before this Court.
2. The appellant claims that she is 2nd wife of one K. Jagam who died on 27.12.1982. The 2nd respondent is the first wife and the respondents 1 and 3 are her children. The appellant has a son named K. Deepak through the said Jegam. According to her, while the said K. Jagam, was taking treatment in the General Ward of the Government General Hospital, Chennai, executed his last Will and Testimony dated 18.12.1982 in the presence of two attesting witnesses, bequeathing the suit property in favour of her son K. Deepak. The appellant attempted to obtain Letter of Probate and since the respondents filed caveat, the original petition was converted into Testamentary Original Suit. The respondents resisted the claim of the appellant by stating that the said Jagam never executed a Will. They have also pleaded undue influence and coercion. However, they denied the relationship of the appellant with the deceased.
3. On the above averments, the learned single Judge framed issues for determination and on the basis of oral and documentary evidences found that the Will sought to be proved by the executrix is shrouded with suspicious circumstances. Further found that undue influence has also been brought on the testator to script the Will. Therefore, held “though the subject Will was executed by K. Jagam on 18.12.1982 in a sound and disposing state of mind, it had been executed in a suspicious circumstance with full participation of the propounder who had brought on undue influence on the testator to execute the Will ”
4. Aggrieved by the finding of the learned single Judge, the appellant has preferred the present appeal on various grounds and more particularly, on the ground that the active participation of the propounder is not a ground to disbelieve the Will. It is also contended that having found that the said Jegam had executed the Will on 18.12.1982, in a sound and disposing state of mind, the Learned Single Judge ought not to have dissmised the Testamentary Suit.
5. Mr.P.B. Balaji, learned counsel for the appellant submitted that the Will was duly proved by the attesting witness as required under law. The learned counsel further contended that the respondents have not challenged the Will on the ground of forgery or fabrication, but have contended that it was executed on undue influence and coercion and therefore, the burden is upon the person who alleges to prove undue influence and coercion.
6. The learned counsel pointed out that the active or full participation of the propounder is not a ground to disbelieve the Will and relied on various judgments.
7. The learned counsel for the appellant relied on a decision reported in AIR 1974 SC 1999 (Surendra Pal and others vs Dr.(Mrs.) Saraswati Arora and other), wherein the Apex Court has held as follows:
“15. The case before us could certainly not fall within Section 111 of the Evidence Act. There is no presumption of law or fact in this country that a woman to whom a man is engaged to be married is in a position to dominate his Will so as to override his own real intentions. It is not mere influence, but undue influence, which has to be proved by the party which sets up such a case. We think that a plea of undue influence, where set up, is a special plea, Section 103 of the Evidence Act places the burden of substantiating such a plea on the party which set it up.”
8. The learned counsel also submitted that failure to produce Will for probate immediately after demise of testator is not a ground to disbelieve the Will and relied on 2001 (3) CTC 283 (Corra Vedachalam Chetty vs G. Janakiraman), wherein this Court has held as follows:
“28. The fact that the Will was not produced immediately after the demise of the testator for the purpose of probate, does not by itself render the Will fraudulent or untrue. So also the fact that the will came from the custody of the daughter, beneficiary does not render the Will untrue when the evidence exists to show that the Will was in fact, the last Will of the testator. The fact that the beneficiary was not examined as a witness in the proceedings does not also by itself have the effect of rendering the Will untrue. The beneficiary in this case is the only daughter of the deceased who does not reside at Madras who lives far away therefrom, is a married lady of advanced years and who had obviously relied upon the counsel as to whether her examination in Court is essential or not. Though it would have been better if she add examined herself, her son examination by itself cannot result in an adverse inference being drawn as to result in the denial of probate for the Will, even when the other circumstances of the case show that the Will is genuine”.
9. The learned counsel also submitted that when a Will is alleged to be forged or obtained by undue influence or coercion, the onus to prove such allegation is on person who alleges it and relied on a decision reported in 2004(5) CTC 790 (Daulat Ram and Others vs Sodha and Others), wherein the Apex Court has held as follows:
“10. Will being a document has to be proved by primary evidence except where the Court permits a document to be proved by leading secondary evidence. Since it is required to be attested, as provided in Section 68 of the Indian Evidence Act, 19872, 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,. 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”.
10. The learned counsel also relied on a decision reported in (2005) 1 SCC 280 (Meenakshiammal (dead) through Lrs vs Chandrasekaran and another, wherein the Apex court has held as follows:
“20. In the case of Ryali Kameswara rao vs Bendapudi Suryaprakasarao, the Court while discussing the provisions of Section 63 of the Succession Act, 1925 has held that the suspicion alleged must be one inherent in the transaction itself and not the doubt that may arise from conflict of testimony which becomes apparent on an investigation of the transaction. That suspicious circumstances cannot be defined precisely. They cannot be enumerated exhaustively. They must depend upon the facts of each case. When a question arises as to whether a will is genuine or forged, normally the fact that nothing can be said against the reasonable nature of its provisions will be a strong and material element in favour of the probabilities of the will. Whether a will has been executed by the testator in a sound and disposing state of mind is purely a question of fact, which will have to be decided in each case on the circumstances disclosed and the nature and quality of the evidence adduced. When the Will is alleged to have been executed under undue influence, the onus of proving undue influence is upon the person making such allegation and mere presence of motive and opportunity are not enough.
11. He also relied on a decision reported in (2005) 8 SCC 67 (Pentakota Satyanarayana vs Pentakota Seetharatnam), wherein the Apex Court has held as follows:
“25. It is settled by a catena of decisions that any and every circumstance is not a suspicious circumstance. Even in a case where active participation and execution of the Will by the propounders/beneficiaries was there, it has been held that by itself is not sufficient to create any doubt either about the testamentary capacity or the genuineness of the Will. It has been held that the mere presence of the beneficiary at the time of execution would not prove that the beneficiary had taken prominent part in the execution of the Will. This is the view taken by this Court in Sridevi v Jayaraja Shetty. In the said case, it has been held that the onus to prove the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the proof of signature of the testator as required by law would not be sufficient to discharge the onus. In case, the person attesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same and that as to what suspicious circumstances which have to be judged in the facts and circumstances of each particular case”.
12. On the contrary, Mr.T.V. Sekar, the learned counsel for the respondents submitted that there are suspicious circumstances in execution of the Will. The learned counsel pointed out that propounder claims to be the 2nd wife of the testator which was not proved. The learned Counsel pointed out that there are unexplained circumstances such as, testator was admitted in the hospital with chronic disease and within nine days of the alleged execution of a Will, the testator died ; there is no explanation as to how a typed Will was produced by the testator in the hospital; and the attesting witnesses, who are closely associated with the propounder, were alone present at the behest of the propounder.
13. The learned counsel further pointed out that after 12 years of execution, the Will was produced and the delay was not explained by the propounder. The learned counsel relied on a decision reported in 2007(2) CTC 172 (Niranjan Umeshchandra Joshi vs Mridula Jyoti Rao and Others), wherein the Apex Court has held as follows:
“33. There are several circumstances which would have been held to be described by this Court as suspicious circumstances:
(i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will;
(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii)Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit.
14. We have carefully heard the rival contentions. Admittedly one K.Jagam was the owner of the property, which is a vacant site, as described in the schedule of properties. The 2nd respondent is the wife and the other respondents are her children. Concededly he was suffering from Ulcerative Colitis and was admitted in the intensive care unit at Government General Hospital, Chennai in the month of December 1982. He was in the intensive care unit for nine days and later moved to general ward. After a week he was discharged from the hospital. On 27.12.1982, he was again admitted at St. Isabels Hospital, Mylapore, Chennai, where he died on the same day.
15. The contention of the appellant is that she was married to the said Jagam as second wife and begotten a son viz., Deepak and when he was 16 years of age, the deceased bequeathed his property and appointed the appellant as the Administrator.
16. Though the respondents have disputed her relationship with the deceased, the Will was disputed only on the ground that it was obtained under undue influence and coercion. Therefore, the fact remains that the deceased was admitted in the Government General Hospital and was taking treatment for a chronic illness and the propounder had a proximity to the testator and the disputed Will was executed in the hospital and an attesting witness (P.W.2) was examined to prove the Will.
17. The respondents have raised certain suspicious circumstances surrounding the Will. The following are such circumstances:
(i) the will was executed at the Government General Hospital where the deceased was taking treatment for chronic illness and he died within 9 days of execution of such will;
(ii) neither the propounder nor the attesting witness were aware as to who had prepared the will;
(iii) Original title deeds relating to the property bequeathed are still in the custody of the respondents;
(iv) there is no evidence to show as to who had given the meticulous description of the schedule of the property and who was present when the testator expressed his intention to bequeath the property to the son of the propounder.
(v) the attesting witnesses are found to be the colleagues of the propounder;
(vi) the attesting witness admit that he was called to the hospital by propounder
(vii) there is no evidence to show that the propounder is the 2nd wife of the testator and
(viii) lastly there is no explanation as to why the legal heirs of the testator have been completely disinherited.
18. It is well settled law that the onus probandi in every case upon the party propounding a Will and it is also well settled that if the circumstances surrounding the execution of the Will is shrouded with suspicion, it is the duty of the propounder to remove that suspicion by leading satisfactory evidence.
19. In 2007(2) CTC 172 (Niranjan Umeshchandra Joshi vs Mridula Jyoti Rao and Others), the Apex Court has held as follows:
“33. There are several circumstances which would have been held to be described by this Court as suspicious circumstances:
(i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will;
(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii)Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit.
20. In the present suit, when the onus is on the propounder to remove the suspicious circumstances, nothing much was elicited in her evidence to explain the circumstances. She has stated in her evidence as follows:
” I do not have any document to show that I am the 2nd wife of the testator; my husband was suffering from ulcerative colitis and my husband died due to cardiac arrest; I am aware that the Will was prepared, but I do not know who prepared it; only the testator knows as who brought the property documents to the hospital”
The attesting witness, in his evidence has stated as follows:
“Mrs.Pushpa Bala Jagam (appellant) called me to the General Hospital on the date of the execution of the Will and hence I went there; At that time, the Will was typed and it was not signed by the testator; AT the time of signing the will the testator was propped up into bed enabling him to sign the Will; I did not go through the contents of the Will in entirety; I did not ask the testator as to who prepared the Will and where it was prepared.
21. Undoubtedly, the execution of the Will is surrounded in suspicious circumstances. When there are suspicious circumstances relating to the Will and whatever little suspicion, the burden is upon the propounder to explain satisfactorily and to remove each and every suspicion.
22. The defendants have pleaded undue influence and coercion. They have also denied the relationship of the propounder with the deceased. As rightly pointed out by the learned counsel for the the
appellants the defendants have not stated how the propounder had exercised undue influence and coerced the testator to execute the Will. However, it has to be presumed that the propounder had a proximity with the testator in his last days and the sequence of events would show that the propounder had played a prominent part in the execution of the will which confers substantial benefit of her son.
23. The propounder is called upon not only to prove the execution of the will by a free and capable testator but also called upon to remove the suspicious circumstances, then only the onus will shift upon the parties who alleges undue influence and coercion.
24. The learned counsel relied on a decision reported in 2009 (4) CTC 705 (Appavu Mudaliar and 3 Others vs Manickkammal and 6 Others), where one of us (P.S.D.J.,) is a party. In that case, it was held that the will produced was proved as testatrix found to be in sound state of mind when executing the Will and affixing thumb impression had been explained. However, the principle laid down is that the propounder of the Will must prove that the will was not executed under any suspicious circumstances or execution was not tainted by fraud or coercion.
25. In the present case the Will is marked as Ex.P.1. A cursory glance would show that it has been hastily prepared. It does not even contain the terms “will shall come to effect after the death of the testator”. The attesting witness has not even stated that the contents of the Will was read over to the testator and he had understood the contents and put his signature and the attester would further state that he has not gone through the contents of the Will in entirety. Such being the case, it cannot be said that the appellant has proved the Will and has removed the suspicion surrounding the will.
26. The various decisions relied on by the learned counsel for the appellant are not applicable to the present case as the facts are different.
27. No doubt, the learned Single Judge has held “Therefore, though the subject Will was executed by K. Jagam on 18.12.1982 in a sound and disposing state of mind …………..”. While discussing the execution of the Will he observed “it is only at the behest of the propounder, the attesting witness had meekly subscribed their signatures to the Will”. Therefore, the finding of the learned Single Judge is only to stress the point that the Will sought to be propounded by the executrix is shrouded in suspicious circumstances though the testator and the witness have subscribed their signatures. As stated earlier, the attesting witness was summoned by the propounder had simply subscribed his signature and nothing else. He has not spoken about the sound and disposing state of mind.
28. The active participation of the propounder may not be a ground to disbelieve the Will, but definitely it is one of the suspicious circumstances, where burden is heavier upon the propounder to remove such suspicion. In the present case, we are of the view neither the execution is proved nor the suspicious circumstances was removed.
29. Under such circumstances, we see no infirmity or illegality in the order passed by the learned single Judge in TOS No.40 of 1993 dated 9.4.2007. Therefore, the original side appeal stands dismissed. No costs.
sr
To
1. The Official Liquidator,
High Court, Chennai
2. The Sub Assistant Registrar,
(Original Side)
High Court,
Madras