JUDGMENT
M. Jeyapaul, J.
1. Originally, the plaintiff filed a petition Under Sections 222 and 276 of Indian Succession Act, 1925 for grant of probate. As the defendant filed caveat, the petition was converted into Testamentary Original Suit.
2. The plaintiff has contended that M. Harish, who is the son of the plaintiff and husband of the defendant, executed his last registered Will dated 26.6.1996 appointing the plaintiff as executrix. M. Harish died issueless. The plaintiff and the defendant are the only legal heirs. The plaintiff undertakes to duly administer the property and credits of the said M. Harish. Therefore, she seeks for grant of probate.
3. The defendant has contended in the written statement that the marital relationship between her husband and herself was quite cordial and she discharged her conjugal duties to her husband. The plaintiff did not permit the husband of the defendant to move about freely. The defendant looked after the plaintiff even when she was hospitalised for removal of womb in the month of January 1999. The testator was taking some pills on daily basis. The defendant has come to understand that her husband had been availing of his leave due to his ill health eversince he joined service on compassionate grounds in Chennai Port Trust. Her husband never informed about the execution and registration of the Will. She presumes that her husband has been pressurized by the plaintiff and her people to execute the said Will with false allegations against the defendant. The defendant signed in blank papers on account of the pressure mounted by the plaintiff and thereafter, as directed by the plaintiff, she left the matrimonial home and joined her parents. The Will was not executed out of free consent . of the testator. The Will is also not genuine. Therefore, the suit may be dismissed.
4. The following issues were framed for adjudication:
1. Whether the Will dated 26.6.1996 executed by Shri. M. Harish, and registered as Document No. 100/1996 on the file of Sub Registrar’s Office, Sembium, is true and genuine.
2. What other reliefs are the parties entitled to?
5. Issues 1 and 2: On the side of the plaintiff, the plaintiff was examined as PW1 and the attestors to the document were examined as P.Ws.2 and 3 and as many as four documents were marked. The defendant was examined as DW1 and no document was marked on her side.
6. Heard the submissions made on either side. Learned Counsel for the plaintiff would submit that the attestors, P.Ws.2 and 3 have spoken to the execution and the attestation of the Will, Ex.P2. The Will itself speaks volumes of the reason why the testator disinherits the defendant who was his wife. There is no suspicious circumstances surrounding the Will. Therefore, the learned Counsel for the plaintiff would submit that the plaintiff is entitled to grant of probate.
7. Learned Counsel for the defendant would vehemently contend that there are a lot of suspicious circumstances under which the Will came to be executed. The plaintiff, who had all along not permitted the couple to move about freely, had some grouse against the defendant and she has virtually authored the content of the Will. The defendant was in dark about the execution of the Will. It is quite unnatural to disinherit a wife by a husband. There is some contradiction found in the content of the Will. Further, PW1 would, at the first instance, depose that she was not at all aware of the execution of the present Will, but, later, she would admit that she came to know of the execution of the Will through the Advocate whom she had engaged to execute a Will. She had influenced her son and compelled him to execute the Will. Therefore, the learned Counsel for the defendant would submit that the plaintiff is not entitled to grant of probate as the Will is surrounded by a lot of suspicious circumstances.
8. PW1 is none other than the another of the testator. She is found to be a widow living along with the testator. The Will would read that the testator was slighted not only by the parents of the defendant but also by the defendant. He has lamented in the Will that he had not derived any matrimonial happiness or pleasures from the defendant. He had categorically commented upon the demeanor, misbehaviour and arrogance of the defendant in the Will. It appears that the testator had some apprehension about the safety of his mother, the plaintiff herein after his demise. Under the Will, he has chosen to bequeath his share of the property to the children who may be born to him in future. In the absence of any children, he has intended to bequeath his share in the property in favour of his mother. He has also thought of giving shelter to his wife till her lifetime provided she does not give any trouble to his mother and cooperates and treats his mother with respect. P.Ws.2 and 3, the neighbour and a co-employee of the testator respectively have spoken to the effect that the testator signed the Will in their presence and they also subscribed their signatures in the capacity of attesting witnesses to the Will in the, presence of the testator. There is no material contradiction in their testimony.
9. The testator, having lamented about the behaviour of his wife and her parents and having been afflicted with the apprehension about the safety and protection of his mother after his demise, has chosen to bequeath the property to his mother in case he was not blessed with any children. It is an admitted fact that the defendant and the testator were not blessed with any child. The testator also has thought of providing shelter to the defendant, but, with certain conditions. The Will is found to be a natural disposition by a husband who had vexed with the conduct of his wife and his father-in-law and mother-in-law. The love and affection shown by him towards his mother and the acrimony exhibited by him towards his wife on account of her alleged misdemeanor has prevailed upon him to execute such a Will bequeathing his share of the property ultimately to his mother. There is nothing unnatural in executing a Will in such a fashion.
10. DW1 would state that the testator was not permitted to go along with her husband by the plaintiff. That is not one of the suspicious circumstances to disbelieve the execution and attestation of the Will, Ex.P2. Even when the relationship was not cordial, the testator had longed to have children through the defendant. But, unfortunately, he was not blessed with any child. It is submitted by the learned Counsel for the defendant that the testator would not have thought of permitting his wife to stay with his mother in the subject property after his demise, more especially when he perceived threat from the defendant to his mother. Being a dutiful husband, he had chosen to protect the interest of his wife also by providing her shelter after his demise. But, that was found to be a conditional one. So long as the defendant behaves and treats his mother properly, she could stay with his mother. Such a provision also is not found to be unnatural. The plaintiff has deposed that the subject Will was executed by his son bequeathing his share of the property ultimately to her and she also in turn executed her last Will in favour of his son and both the Wills were registered on the very same day. The Will executed by her was not marked before the court. She would state that she was not aware of the execution of the Will at the first instance, but, when she met her advocate to execute her Will, she was informed by him that his son had already executed a Will. What PW1 has meant is that she came to know of the preparation of the Will by his son only when she engaged an Advocate to prepare the Will. There is no contradiction in such a version of PW1.
11. The Honourable Supreme Court in Gurdev Kaurdev Kaur and Ors. v. Kaki and Ors. 2006-4-LW 942 has observed that the court is not to substitute its own opinion for what was the testator’s Will or intention, as manifested from a reading of the written instrument. After all, a Will is meant to be an expression of his desire and therefore, it is quite natural that the same may result in disinheritance of some and grant to another. Therefore, in the instant case, just because the wife was disinherited, we cannot simply suspect the execution of the Will by the testator.
12. It has been observed by a Division Bench of this Court in Corra Vedachalam Chetty v. G. Janakiraman 2001(3) CTC 283 that the Testamentary Court is a court of conscience and it is not a court of suspicion. The object of probate proceedings is not to render the Will ineffective, but, to make effective and render the terms of the Will operative. A note of caution also has been struck by the Bench that the court shall discourage unscrupulous caveators who choose to cull out imaginary suspicion to render the Will ineffective. In the instant case, it is found that the testator has given cogent reason for disinheriting his wife. It was not a direct bequeathal of the property in favour of the propounder. The first choice was the children of the testator. Further, the intention of the testator to provide shelter to the wife also is found to be exhibited in the Will. Inspite of such a testament, the defendant has come out; with all imaginary suspicion seeking to render the Will ineffective.
13. The evidence in this case would show that the legatee had not participated in the preparation of the Will. But, there is evidence to show that she was present at the time when the registration of the Will was done by the testator. This Court has held in Manickam v. Sakunthala @ Rjeswari and 5 Ors. 2006-4-LW 351 that mere participation of the legatee in the execution of the Will will not in any way affect the genuineness of the Will.
14. It is the grievance of the defendant who is the wife of the testator that the Will was kept close to the chest of the testator till his death. A Division Bench of our High Court in Dr. A. Ravikumar v. M. Savithiri and Ors. 2006-4-LW 24 has observed that just because the testator had not chosen to disclose the execution of the Will either to his sister or to any of the members of his family, the Will cannot be discarded more especially when the same stood proved. In this case, the plaintiff has established the execution of the Will by the testator. Here is a case where the matrimonial relationship was not cordial between the testator and the defendant. No wonder the testator had not chosen to disclose the factum of execution of the Will to his wife. It is very feebly submitted that there was some undue influence flowed from the mother for the execution of the Will. The. Will was executed on 26.6.1996. As per the death certificate, Ex.P1, the testator had died only on 4.12.1999. The testator had survived for more than three years after the execution of the Will. If at all there had been some undue influence, which prevailed upon him to execute the Will, he would have definitely re-written the Will within the long duration of three years period he had before his death.
15. It has been laid down by the Honourable Supreme Court in Sridevi v. Jayaraja Shetty that the onus to prove the Will is only upon the propounder. In the absence of suspicious circumstances surrounding the execution of the Will, the proof of testamentary capacity and proof of signature of the testator as required by law are sufficient to prove the Will. The existence of suspicious circumstances imposes burden on the propounder to explain such suspicious circumstances to the satisfaction of the court before the Will is accepted as genuine. Here in the instant case, no suspicious circumstances worth mentioning has been referred to either in the written statement or in the evidence of DW1. The Will was executed by the testator at the early age of 29. Quite probably he might have had a premonition of death on account of the fact that his father died at an early age. The fact remains that he was taking regularly pills to attend to some disease he was afflicted with. That may be the reason why he had chosen to execute the Will at an early age. The testamentary capacity and the execution of the Will have been proved by the plaintiff by examining the attestors to the Will.
16. In the authority reported in Indu Bala v. Manindra chandra it has been held that the suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator’s mind, 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 the legitimate suspicions are completely removed before the document is accepted as the last Will of the testator. In the very same judgment, it has been held that if the propounder succeeds in removing the suspicious circumstances, the court would grant probate even if the Will may be unnatural and might cut off wholly or in part near relations. Any and every circumstance is not a suspicious circumstance. A circumstance would be suspicious only when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. In the instant case, the testator who was not satisfied with the matrimonial relationship with his wife, disinherits her and bequeaths the property ultimately in favour of his mother. There is no indication in the Will that the testator’s mind was influenced. Having given a graphic account of the conduct of his wife and her parents and the apprehension in his mind about the safety of his mother, the testator has chosen to bequeath the property. Therefore, the above authority does not come to the rescue of the defendant. It is essential that trustworthy and unimpeachable evidence should be produced before the court to establish the genuineness and authenticity of the Will as held in the authority reported in Kalyan Singh v. CHHO AIR 1990 SC 396. The evidence of P.Ws.2 and 3 could not be impeached inspite of rigorous cross examination. They are not related to the testator. The independent testimony of P.Ws.2 and 3 is found to be trustworthy and reliable.
17. The plaintiff has established that the testator, in a sound and disposing state of mind, has executed the subject Will. Therefore, the plaintiff is entitled to grant of probate as prayed for. Registry is directed to issue probate.