BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09/03/2010 CORAM THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI A.S.(MD)No.4 of 2000 and M.P.(MD)No.1 of 2009 G.Wilson ... 2nd respondent/ Appellant Vs 1.Stella Mary 2.Ranjitham ... 1st respondent/ Respondents PRAYER This appeal filed under Section 299 of Indian Succession Act, against the judgment and decree dated 25.03.1992 made in O.P.No.82 of 1989 on the file of the District Judge, Kanyakumari District at Nagercoil. !For Appellant ... Mr.D.Sadhasivan ^For Respondents ... Mrs.N.Krishnaveni Mr.T.R.Rajaraman for R1 :JUDGMENT
The appeal is preferred against the judgment and decree dated 25.03.1992
made in O.P.No.82 of 1989 on the file of the District Judge, Kanyakumari
District at Nagercoil.
2.The proposed O.P. was filed by the first respondent herein in respect of
Will dated 11.05.1987 executed by one Gunamudayan.
3.The brief facts of the case is as follows:
The first respondent is the wife of Gunamudayan. The petitioner and the
second respondent are daughter and son of the said Gunamudayan. While the said
Gunamudayan was in sound state of mind, he had executed the Will dated
11.05.1987 bequeathing the property mentioned therein in favour of the
petitioner and he died on 11.12.1988 and therefore, the Will is produced under
Section 277 of Indian Succession Act for probate.
4.The first respondent had no objection in probating the Will. The second
respondent contested and stated that the Will was executed under undue influence
and it is not genuine one. It is stated that the said Gunamudayan was working
in an estate at Nilgris and after his retirement he was under the care and
custody of the petitioner. As he was very old and not able to act
independently, the petitioner influenced the father and she made him to sell
certain properties and the sale amount was deposited in the Bank. The
petitioner had also instigated him to execute a settlement deed and the same was
challenged by the respondent in O.S.No.58 of 1988 which is pending. The
petitioner has obtained the Will under undue influence and therefore, the said
Will is not a genuine Will and not executed by the executant with free state of
mind.
5.Based on the above rival contentions, the learned District Judge,
Nagercoil, analysed various oral and documentary evidence and in support of
various decisions of this Court and the Hon’ble Supreme Court found that the
Will was duly proved and there is no undue influence over the executant and
therefore, has granted probate. Against which, the second respondent has
preferred the present appeal on various grounds. The main ground urged in this
appeal is that the learned District Judge ought to have held that the first
respondent has not discharged her burden of proof that the will was not executed
under undue influence and the learned District Judge ought to have considered
the substantive circumstances surrounding the alleged execution of the Will. It
is also submitted that the executant was physically and mentally weak and he was
not in a sound dispossession and also on the ground that there is no Executor
appointed under the Will as contemplated under Section 222 of the Indian
Succession Act.
6.The point for consideration in this appeal is
i)whether the execution and the attestation of the Will is proved as required
under the law?
i)whether the Will is vitiated by undue influence by the first respondent over
the executant?
iii)whether the probate can be granted to the propounder in the absence of an
Executor appointed by the Will as contemplated under Section 222 of the Act?
7.The relationship of the parties are admitted. The petitioner/first
respondent and the appellant/second respondent are brother and sister and they
are the children of the said Gunamudayan, who is the executant of the Will dated
11.05.1987 and he died on 11.02.1988. The death certificate is marked as Exs.P1
and P2. It is admitted that the said Gunamudayan, after his retirement, was
living with the petitioner till his death.
8.Mr.D.Sadhasivan, the learned counsel for the appellant would submit that
the Executant namely, Gunamudayan was physically and mentally weak and not
capable of understanding and has been under the influence of the first
respondent herein and has executed the alleged will and therefore, the alleged
Will dated 11.05.1987 isnot genuine. The learned counsel pointed out that no
provision was made to the wife of the Executant and to the appellant herein and
in those circumstances, it is evident that the first respondent has exercised
her influence over the executant and hence, the Will has to be rejected. The
learned counsel also pointed out that the first respondent has influenced the
father to sell the properties and the first respondent has also got a settlement
deed in favour her and the date of registration of the Will, would show that
the Will has been manipulated by the first respondent. The learned counsel
contended that the mother of the parties, though arrayed as respondent, was not
examined by the first respondent and the District Court was wrong in
appreciating the evidence of P.W.2 and P.W.3 regarding the execution and
attestation of the Will.
9.The learned counsel relied on the judgment reported in 1962 SC 567 (Rani
Purnima and another Vs. Kumar Khagendra Narayan Deb and another) wherein this
Court has held that
“…The onus of proving the will was on the propounder and in the absence of
suspicious circumstances surrounding the execution of the will proof of
testamentary capacity and signature of the testator as required by law was
sufficient to discharge the onus. Where, however, there were suspicious,
circumstances, the onus would be on the propounder to explain them to the
satisfaction of the Court before the will could be accepted as genuine. …”
10.The learned counsel also relied on AIR 1982 Calcutta 236 (Anath Nath
Das and others Vs. Smt.Bijali Bala Mondal) wherein it was held as
“11.In the facts of this case the court below was not justified in observing
that the document being registered, the onus was on the opposite party (meaning
the defendants) to prove that the testator had no testamentary power at the time
of the execution. The Supreme Court in Purnima Debi V. Khagendra Narayan Deb
AIR 1962 SC 567 observed that if a will has been registered, that is a
circumstance which may, having regard to the circumstances, prove its
genuineness. But the mere fact that a will is registered will not by itself be
sufficient to dispel all suspicion regarding it where suspicious exists, without
submitting the evidence of registration to a close examination. If the evidence
as to registration on a close examination reveals that the registration was made
in such a manner that it was brought home to the testator that the document of
which he was admitting execution was a will disposing of his property and
thereafter he admitted its execution and signed it in token, thereof, the
registration will dispel the doubt as to the genuineness of the will. But if
the evidence as to registration shows that it was done in a perfunctory manner,
that the officer registering the will did not read it over to the testator or
did not bring home to him that he was admitting the execution of a will or did
not satisfy himself in some other way (as, for example, be seeing the testator
read in the will) that the testator knew that it was a will the execution of
which he was admitting, the fact that the will was registered would not be of
much value. Registration may take place without the executant really knowing
what he was registering.”
11.The learned counsel also relied on AIR 1976 Bombay 315 wherein it was
held that,
“The propounder has to prove both due execution as well as the testamentary
capacity of the testator, and that once those were established, the onus which
rests on the propounder stands discharged. If, however, there was suspicious
circumstances surrounding the execution of the Will, such as, where the
signature was doubtful, or the testator was in a feeble state of mind, or the
dispositions in the Will appeared to be unnatural, or improper, or the
propounder had taken a prominent part in the execution of the will which
conferred substantial benefits on him, the onus was on the propounder to explain
satisfactorily those suspicious circumstances before probate could be ordered to
issue, for after all, ultimately it was the conscience of the Court that had to
be satisfied. …”
12.On the contrary, Mrs.N.Krishnaveni, the learned counsel for the
respondent would submit that the execution and the attestation of the Will has
been proved as required under Section 68 of the Indian Evidence At and Section
63 of the Indian Succession Act. The learned counsel pointed out that the
District Court had gone extensively into the evidence available on records and
found that the execution and the attestation of the Will was proved and there
was no undue influence over the executant and found that the Will is genuine and
therefore, there is no necessity to interfere with the findings of the court
below.
13.The learned counsel relied on 2007(11) SCC 621 (Savithri and others Vs.
Karthyayani Amma and others) wherein the Supreme Court has held as follows:
“… A will like any other document is to be proved in terms of the provisions
of the Succession Act and the Evidence Act. The onus of proving the will is on
the propounder. The testamentary capacity of the testator must also be
established. Execution of the will by the testator has to be proved. At least
one attesting witness is required to be examined for the purpose of proving the
execution of the will. It is required to be shown that the will has been signed
by the testator with his free will and that at the relevant time he was in sound
disposing state of mind and understood the nature and effect of the disposition.
It is also required to be established that the he has signed the will in the
presence of two witnesses who attested his signature in his presence or in the
presence of each other. Only when there exist suspicious circumstances, the
onus would be on the propounder to explain them to the satisfaction of the court
before it can be accepted as genuine.”
14.Heard the learned counsel for the appellant and the learned counsel for
the respondent and perused the entire material on record.
15.This appeal relates to a Christian “Will” executed by one Gunamudayan
son of Thaveedu in favour of his daughter Stella Mary Joy on 11.05.1987. Being
a “Will” of a Christian, it has been presented before the District Court,
Nagercoil, for probate in Probate O.P.No.82 of 1989 under Section 276 of the
Indian Succession Act. The wife of the executant and the only son of the
executant were the respondents in the probate O.P. The first respondent/wife of
the executant sailed along with the petitioner and pending appeal, she died.
The probate was opposed by the 2nd respondent, who is the only son of the
executant. It was opposed on the ground that the “Will” was not genuine and it
was obtained under undue influence and coercion by the daughter only to deny the
rights of the son. Later, it was also attacked on the ground that the testator
was not in sound state of mind and there are suspicious circumstances
surrounding the execution of the “Will”.
16.As required under law, the propounder had examined herself and also the
scribe and the two attestors to prove the “Will” as contemplated under Section
68 of the Indian Evidence Act. The “Will” was marked as Ex.A1. The contesting
respondent examined himself and has stated that the “Will” was created by undue
influence and coercion by the daughter excluding the son and there is no
provision even for the wife and the executant was not in sound state of mind and
there are suspicious circumstances surrounding the execution of the “Will”.
17.The learned counsel who appeared for the appellant would submit that
the executant and the propounder were living together and the executant was
living under the care and protection of the propounder and therefore, undue
influence was excercised to execute the “Will” excluding the son. The learned
counsel also pointed out that the execution is not valid and therefore, the
“Will” was not executed in a sound state of mind and there are suspicious
circumstances while executing the “Will”. The learned counsel relied on AIR
1976 Bombay 315 (Totaram Maharu V. Ramabai and others) wherein it was held as
follows:
“The propounder has to prove both due execution as well as the testamentary
capacity of the testator, and that once those were established, the onus which
rests on the propounder stands discharged. If, however, there were suspicious
circumstances surrounding the execution of the Will, such as, where the
signature was doubtful, or the testator was in a feeble state of mind, or the
dispositions in the Will appeared to be unnatural, or improper, or the
propounder had taken a prominent part in the execution of the Will which
conferred substantial benefits on him, the onus was on the propounder to explain
satisfactorily those suspicious circumstances before probate could be ordered to
issue, for after all, ultimately it was the conscience of the Court that had to
be satisfied. …”
18.The learned counsel also relied on 1962 SC 567 (Rani Purnima Debi and
another Vs. Kumar Khagendra Narayan Deb and another), 1977 SC 74 (Smt.Jaswant
Kaur V. Smt.Amrit Kaur and others) and 1982 SC 236 (Anath Nath Das and others
Vs. Smt.Bijali Bala Mondal).
19.On the contrary, the learned counsel for the respondents would submit
that the “Will” has been executed on 11.05.1987 in favour of the daughter and
the executant died only in the year 1988 after 1. years and therefore, there is
nothing to show that the executant was not well or not in sound state of mind
and the propounder had exercised undue influence or coercion. The learned
counsel submitted that the initial burden is upon the propounder to prove the
due execution of “Will” and once it is discharged,the onus is upon the
respondent to prove that it was executed under undue influence or coercion or
there are suspicious circumstances surrounding the execution of the “Will”. The
learned counsel relied on 2007(11) SC 357 (Kanwarjit Singh Dhillon Vs. Hardyal
Singh Dhillon and others) and 2007(11) SCC 621 (Savithri and others Vs.
Karthyayani amma and others).
20.The propounder of the “Will” is the daughter and the contesting
respondent is the son. The father has chosen to bequeath certain properties in
favour of his daughter excluding the son. It is admitted that the executant was
residing under the care and protection of the propounder. From the evidence of
P.W.1 and as well as D.W.1, it is found that the son was initially residing
along with the father and after his marriage, due to some misunderstanding, he
went separately. From the evidence and as well as from the documents produced
by the propounder, it is seen that the father had other properties, which he
sold to third parties under Exs.A11, 12. That being so, the father and daughter
jointly have filed a suit in O.S.No.57 of 1987 on the file of the Subordinate
Judge, Kuzhithurai, against the respondent and two others for declaration of
title and partition and other relieves. Exs.A3 and A4 are the plaint and the
written statement filed in the suit. The son also filed a suit against the
father in O.S.No.858 of 1988 which is also on record. However, the “Will” dated
11.05.1987 which is marked under Ex.A1 was executed by the father and on
19.05.1987 a deed of settlement was also executed in favour of the daughter and
both the documents were registered on 21.05.1987. It is well settled law that
the propounder has to prove the “Will” in accordance with law. The perusal of
the evidences 1 to 4 would show that the executant namely, Gunamudayan had
executed the “Will” in sound state of mind and the attestors have seen that the
executant signed in the document and in turn the executant had seen the
attestors singed the document and therefore, the probator has proved that the
“Will” in accordance with Section 68 of the Evidence Act.
21.The next question is whether the “Will” has been executed under undue
influence by the propounder?
22.It is admitted that the propounder was residing with her parents
namely, the executant and the first respondent. She was unmarried and she is
the only daughter. Whether she was in a position to influence her father to
execute the “Will” only in her favour? It is well settled that simply because
the propounder was living along with the executant will not necessarily mean
that she or he exercised such undue influence. The executant was hale and
healthy and he was in sound state of mind. This fact are proved by the conduct
of the parties. He had prosecuted cases against his son and he had been in
connection with his brother and he had alienated some of his properties during
the relevant period.
23.It is also admitted that the relationship between the father and the
son was strained. Suits were pending between the father and the son. However,
the recitals in the deed would show that he had considered the position of the
son also before bequeathing the property in favour of his only daughter. It is
also to be seen that he has bequeathed only one property under the “Will” and
not the entire property. The remaining portion of the property was settled under
a settlement deed. The Trial Court has rightly found that had he been
influenced, he would have settled both the properties under the “Will” and he
would not have chosen two modes of transfer of property. Therefore, these
circumstances would show that there is no undue influence by the daughter over
the father.
24.As far as the suspicious circumstances surrounding the execution of the
“Will” is concerned, the respondent was not able to bring any such suspicious
circumstances except the “Will” was executed on 11.05.1987 and was not
registered on the same day and a settlement deed was executed on 19.05.1987 and
both the documents were registered only on 21.05.1987. The another circumstance
canvassed is that the attestors and the scribe are the same for both the
document.
25.In 2007(11) SCC 357 (cited supra), it was held that it is well settled
that the functions of the Probate Court are to see that the “Will” executed by
the testator was actually executed by him in a sound state of mind without
coercion or undue influence and the same was duly attested.
26.In my considered opinion, the propounder had proved the execution of
the “Will” by the testator in a sound dispensing state of mind without any
coercion or undue influence and there is no suspicious circumstances surrounding
the execution of the “Will”. The alleged suspicious circumstances by the
respondents is not well founded.
27.Only when there exist suspicious circumstances, the onus would be on
the propounder to explain the circumstances to the satisfaction to the court
before the will can be accepted as genuine. The burden of prove that the “Will”
has been executed and is a genuine document is always on the propounder and
she/he is to prove that the testator has signed the “Will” in a sound state of
mind. Sufficient evidence was let in to prove the execution. The “Will” was
executed in the year 1987 and thereafter, the executant had participated in
various litigations against the respondents and he died only in the year 1988,
after 1 . years of execution of the “Will”. When the dispossession appears to
be natural, the Will has to be accepted and the Trial Court was right in
accepting the “Will” and had issued probate. I have no reason to interfere
with the decree and judgment of the trail court. The points are decided
accordingly. The order of the lower court is confirmed.
In the result the appeal is dismissed. No costs. Consequently, connected
M.P.is closed.
nbj
To
The District Judge,
Kanyakumari District,
Nagercoil.