{"id":215055,"date":"2010-03-09T00:00:00","date_gmt":"2010-03-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/g-wilson-vs-stella-mary-on-9-march-2010"},"modified":"2018-11-14T13:58:31","modified_gmt":"2018-11-14T08:28:31","slug":"g-wilson-vs-stella-mary-on-9-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/g-wilson-vs-stella-mary-on-9-march-2010","title":{"rendered":"G.Wilson vs Stella Mary on 9 March, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
G.Wilson vs Stella Mary on 9 March, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED:  09\/03\/2010\n\nCORAM\nTHE HONOURABLE MR.JUSTICE G.M.AKBAR ALI\n\nA.S.(MD)No.4 of 2000\nand\nM.P.(MD)No.1 of 2009\n\nG.Wilson\n\t\t\t\t\t\t\t...\t2nd respondent\/\n \t\t\t\t\t\t\t\tAppellant\n\nVs\n\n1.Stella Mary\n2.Ranjitham\n\t\t\t\t\t\t\t... \t1st respondent\/\n\t\t\t\t\t\t\t\tRespondents\n\n\nPRAYER\n\nThis appeal filed under Section 299 of Indian Succession Act,\nagainst the judgment and decree dated 25.03.1992 made in O.P.No.82 of 1989 on\nthe file of the District Judge, Kanyakumari District at Nagercoil.\n\n!For Appellant\t  ...  Mr.D.Sadhasivan\n^For Respondents  ...  Mrs.N.Krishnaveni\n\t\t       Mr.T.R.Rajaraman for R1\n\n\n:JUDGMENT\n<\/pre>\n
\tThe appeal is preferred against the judgment and decree dated 25.03.1992
\nmade in O.P.No.82 of 1989 on the file of the District Judge, Kanyakumari
\nDistrict at Nagercoil.\n<\/p>\n
\t2.The proposed O.P. was filed by the first respondent herein in respect of
\nWill dated 11.05.1987 executed by one Gunamudayan.\n<\/p>\n
\t3.The brief facts of the case is as follows:\n<\/p>\n
\tThe first respondent is the wife of Gunamudayan.  The petitioner and the
\nsecond respondent are daughter and son of the said Gunamudayan.  While the said
\nGunamudayan was in sound state of mind, he had executed the Will dated
\n11.05.1987 bequeathing the property mentioned therein in favour of the
\npetitioner and he died on 11.12.1988 and therefore, the Will is produced under
\nSection 277 of Indian Succession Act for probate.\n<\/p>\n
\t4.The first respondent had no objection in probating the Will.  The second
\nrespondent contested and stated that the Will was executed under undue influence
\nand it is not genuine one.  It is stated that the said Gunamudayan was working
\nin an estate at Nilgris and after his retirement he was under the care and
\ncustody of the petitioner.  As he was very old and not able to act
\nindependently, the petitioner influenced the father and she made him to sell
\ncertain properties and the sale amount was deposited in the Bank.  The
\npetitioner had also instigated him to execute a settlement deed and the same was
\nchallenged by the respondent in O.S.No.58 of 1988 which is pending.  The
\npetitioner has obtained the Will under undue influence and therefore, the said
\nWill is not a genuine Will and not executed by the executant with free state of
\nmind.\n<\/p>\n
\t5.Based on the above rival contentions, the learned District Judge,
\nNagercoil, analysed various oral and documentary evidence and in support of
\nvarious decisions of this Court and the Hon’ble Supreme Court found that the
\nWill was duly proved and there is no undue influence over the executant and
\ntherefore, has granted probate.  Against which, the second respondent has
\npreferred the present appeal on various grounds.  The main ground urged in this
\nappeal is that the learned District Judge ought to have held that the first
\nrespondent has not discharged her burden of proof that the will was not executed
\nunder  undue influence and the  learned District Judge ought to have considered
\nthe substantive circumstances surrounding the alleged execution of the Will. It
\nis also submitted that the executant was physically and mentally weak and he was
\nnot in a sound dispossession and also on the ground that there is no Executor
\nappointed under the Will as contemplated under Section 222 of the Indian
\nSuccession Act.\n<\/p>\n
\t6.The point for consideration in this appeal is\n<\/p>\n
i)whether the execution and the attestation of the Will is proved as required
\nunder the law?\n<\/p>\n
i)whether the Will is vitiated by undue influence by the first respondent over
\nthe executant?\n<\/p>\n
iii)whether the probate can be granted to the propounder in the absence of an
\nExecutor appointed by the Will as contemplated under Section 222 of the Act?\n<\/p>\n
\t7.The relationship of the parties are admitted.  The petitioner\/first
\nrespondent and the appellant\/second respondent are brother and sister and they
\nare the children of the said Gunamudayan, who is the executant of the Will dated
\n11.05.1987 and he died on 11.02.1988. The death certificate is marked as Exs.P1
\nand P2.  It is admitted that the said Gunamudayan, after his retirement,  was
\nliving with the petitioner till his death.\n<\/p>\n
\t8.Mr.D.Sadhasivan, the learned counsel for the appellant would submit that
\nthe Executant namely, Gunamudayan was physically and mentally weak and not
\ncapable of understanding and has been under the influence of the first
\nrespondent herein and has executed the alleged will and therefore, the alleged
\nWill dated 11.05.1987 isnot genuine. The learned counsel pointed out that no
\nprovision was made to the wife of the Executant and to the appellant herein and
\nin those circumstances, it is evident that the first respondent has exercised
\nher influence over the executant and hence, the Will has to be rejected.  The
\nlearned counsel also pointed out that the first respondent has influenced the
\nfather to sell the properties and the first respondent has also got a settlement
\ndeed in favour her and the date of registration of the Will,  would show that
\nthe Will has been manipulated by the first respondent.  The learned counsel
\ncontended that the mother of the parties, though arrayed as respondent, was not
\nexamined by the first respondent and the District Court was wrong in
\nappreciating the evidence of P.W.2 and P.W.3 regarding the execution and
\nattestation of the Will.\n<\/p>\n
\t9.The learned counsel relied on the judgment reported in 1962 SC 567 (Rani
\nPurnima and another Vs. Kumar Khagendra Narayan Deb and another) wherein this
\nCourt has held that
\n“…The onus of proving the will was on the propounder and in the absence of
\nsuspicious circumstances surrounding the execution of the will proof of
\ntestamentary capacity and signature of the testator as required by law was
\nsufficient to discharge the onus.  Where, however, there were suspicious,
\ncircumstances, the onus would be on the propounder to explain them to the
\nsatisfaction of the Court before the will could be accepted as genuine. …”\n<\/p>\n
\t10.The learned counsel also relied on AIR 1982 Calcutta 236 (Anath Nath
\nDas and others Vs. Smt.Bijali Bala Mondal) wherein it was held as<\/p>\n
“11.In the facts of this case the court below was not justified in observing
\nthat the document being registered, the onus was on the opposite party (meaning
\nthe defendants) to prove that the testator had no testamentary power at the time
\nof the execution.  The Supreme Court in Purnima Debi V. Khagendra Narayan Deb
\nAIR<\/a> 1962 SC 567 observed that if a will has been registered, that is a
\ncircumstance which may, having regard to the circumstances, prove its
\ngenuineness.  But the mere fact that a will is registered will not by itself be
\nsufficient to dispel all suspicion regarding it where suspicious exists, without
\nsubmitting the evidence of registration to a close examination.  If the evidence
\nas to registration on a close examination reveals that the registration was made
\nin such a manner that it was brought home to the testator that the document of
\nwhich he was admitting execution was a will disposing of his property and
\nthereafter he admitted its execution and signed it in token, thereof, the
\nregistration will dispel the doubt as to the genuineness of the will.  But if
\nthe evidence as to registration shows that it was done in a perfunctory manner,
\nthat the officer registering the will did  not read it over to the testator or
\ndid not bring home to him that he was admitting the execution of a will or did
\nnot satisfy himself in some other way (as, for example, be seeing the testator
\nread in the will) that the testator knew that it was a will the execution of
\nwhich he was admitting, the fact that the will was registered would not be of
\nmuch value.  Registration may take place without the executant really knowing
\nwhat he was registering.”\n<\/p>\n
\t11.The learned counsel also relied on AIR 1976 Bombay 315 wherein it was
\nheld that,<\/p>\n
“The propounder has to prove both due execution as well as the testamentary
\ncapacity of the testator, and that once those were established, the onus which
\nrests on the propounder stands discharged.  If, however, there was suspicious
\ncircumstances surrounding the execution of the Will, such as, where the
\nsignature was doubtful, or the testator was in a feeble state of mind, or the
\ndispositions in the Will appeared to be unnatural, or improper, or the
\npropounder had taken a prominent part in the execution of the will which
\nconferred substantial benefits on him, the onus was on the propounder to explain
\nsatisfactorily those suspicious circumstances before probate could be ordered to
\nissue, for after all, ultimately it was the conscience of the Court that had to
\nbe satisfied. …”\n<\/p>\n
\t12.On the contrary, Mrs.N.Krishnaveni, the learned counsel for the
\nrespondent would submit that the execution and the attestation of the Will has
\nbeen proved as required under Section 68 of the Indian Evidence At and Section
\n63 of the Indian Succession Act.  The learned counsel pointed out that the
\nDistrict Court had gone extensively into the evidence available on records and
\nfound that the execution and the attestation of the Will was proved and there
\nwas no undue influence over the executant and found that the Will is genuine and
\ntherefore, there is no necessity to interfere with the findings of the court
\nbelow.\n<\/p>\n
\t13.The learned counsel relied on 2007(11) SCC 621 (Savithri and others Vs.
\nKarthyayani Amma and others) wherein the Supreme Court has held as follows:\n<\/p>\n
“… A will like any other document is to be proved in terms of the provisions
\nof the Succession Act and the Evidence Act.  The onus of proving the will is on
\nthe propounder.  The testamentary capacity of the testator must also be
\nestablished.  Execution of the will by the testator has to be proved.  At least
\none attesting witness is required to be examined for the purpose of proving the
\nexecution of the will.  It is required to be shown that the will has been signed
\nby the testator with his free will and that at the relevant time he was in sound
\ndisposing state of mind and understood the nature and effect of the disposition.
\nIt is also required to be established that the he has signed the will in the
\npresence of two witnesses who attested his signature in his presence or in the
\npresence of each other.  Only when there exist suspicious circumstances, the
\nonus would be on the propounder to explain them to the satisfaction of the court
\nbefore it can be accepted as genuine.”\n<\/p>\n
\t14.Heard the learned counsel for the appellant and the learned counsel for
\nthe respondent and perused the entire material on record.\n<\/p>\n
\t15.This appeal relates to a Christian “Will” executed by one Gunamudayan
\nson of Thaveedu in favour of his daughter Stella Mary Joy on 11.05.1987.  Being
\na “Will” of a Christian, it has been presented before the District Court,
\nNagercoil, for probate in Probate O.P.No.82 of 1989 under Section 276 of the
\nIndian Succession Act.  The wife of the executant and the only son of the
\nexecutant were the respondents in the probate O.P.  The first respondent\/wife of
\nthe executant sailed along with the petitioner and pending appeal, she died.
\nThe probate was opposed by the 2nd respondent, who is the only son of the
\nexecutant.  It was opposed on the ground that the “Will” was not genuine and it
\nwas obtained under undue influence and coercion by the daughter only to deny the
\nrights of the son.  Later, it was also attacked on the ground that the testator
\nwas not in sound state of mind and there are suspicious circumstances
\nsurrounding the execution of the “Will”.\n<\/p>\n
\t16.As required under law, the propounder had examined herself and also the
\nscribe and the two attestors to prove  the “Will” as contemplated under Section
\n68 of the Indian Evidence Act.  The “Will” was marked as Ex.A1.  The contesting
\nrespondent examined himself and has stated that the “Will” was created by undue
\ninfluence and coercion by the daughter excluding the son and there is no
\nprovision even for the wife and the executant was not in sound state of mind and
\nthere are suspicious circumstances surrounding the execution of the “Will”.\n<\/p>\n
\t17.The learned counsel who appeared for the appellant would submit that
\nthe executant and the propounder were living together and the executant was
\nliving under the care and protection of the propounder and therefore, undue
\ninfluence was excercised to execute the “Will” excluding the son.  The learned
\ncounsel also pointed out that the execution is not valid and therefore, the
\n“Will” was not executed in a sound state of mind and there are suspicious
\ncircumstances while executing the “Will”.  The learned counsel relied on AIR
\n1976 Bombay 315 (Totaram Maharu V. Ramabai and others) wherein it was held as
\nfollows:\n<\/p>\n
“The propounder has to prove both due execution as well as the testamentary
\ncapacity of the testator, and that once those were established, the onus which
\nrests on the propounder stands discharged.  If, however, there were suspicious
\ncircumstances surrounding the execution of the Will, such as, where the
\nsignature was doubtful, or the testator was in a feeble state of mind, or the
\ndispositions in the Will appeared to be unnatural, or improper, or the
\npropounder had taken a prominent part in the execution of the Will which
\nconferred substantial benefits on him, the onus was on the propounder to explain
\nsatisfactorily those suspicious circumstances before probate could be ordered to
\nissue, for after all, ultimately it was the conscience of the Court that had to
\nbe satisfied. …”\n<\/p>\n
\t18.The learned counsel also relied on 1962 SC 567 (Rani Purnima Debi and
\nanother Vs. Kumar Khagendra Narayan Deb and another), 1977 SC 74 (Smt.Jaswant
\nKaur V. Smt.Amrit Kaur and others<\/a>) and 1982 SC 236 (Anath Nath Das and others
\nVs. Smt.Bijali Bala Mondal).\n<\/p>\n
\t19.On the contrary, the learned counsel for the respondents would submit
\nthat the “Will” has been executed on 11.05.1987 in favour of the daughter and
\nthe executant died only in the year 1988 after 1. years and therefore, there is
\nnothing to show that the executant was not well or not in sound state of mind
\nand the propounder had exercised undue influence or coercion.  The learned
\ncounsel submitted that the initial burden is upon the propounder to prove the
\ndue execution of “Will” and once it is discharged,the onus is upon the
\nrespondent to prove that it was executed under undue influence or coercion or
\nthere are suspicious circumstances surrounding the execution of the “Will”.  The
\nlearned counsel relied on 2007(11) SC 357 (Kanwarjit Singh Dhillon Vs. Hardyal
\nSingh Dhillon and others) and 2007(11) SCC 621 (Savithri and others Vs.
\nKarthyayani amma and others).\n<\/p>\n
\t20.The propounder of the “Will” is the daughter and the contesting
\nrespondent is the son.  The father has chosen to bequeath certain properties in
\nfavour of his daughter excluding the son.  It is admitted that the executant was
\nresiding under the care and protection of the propounder.  From the evidence of
\nP.W.1 and as well as D.W.1, it is found that the son was initially residing
\nalong with the father and after his marriage, due to some misunderstanding, he
\nwent separately.  From the evidence and as well as from the documents produced
\nby the propounder, it is seen that the father had other properties, which he
\nsold to third parties under Exs.A11, 12. That being so, the father and daughter
\njointly have filed a suit in O.S.No.57 of 1987 on the file of the Subordinate
\nJudge, Kuzhithurai, against the respondent and two others for declaration of
\ntitle and partition and other relieves.  Exs.A3 and A4 are the plaint and the
\nwritten statement filed in the suit.  The son also filed a suit against the
\nfather in O.S.No.858 of 1988 which is also on record.  However, the “Will” dated
\n11.05.1987 which is marked under Ex.A1 was executed by the father and on
\n19.05.1987 a deed of settlement was also executed in favour of the daughter and
\nboth the documents were registered on 21.05.1987.  It is well settled law that
\nthe propounder has to prove the “Will” in accordance with law.  The perusal of
\nthe evidences 1 to 4 would show that the executant namely, Gunamudayan had
\nexecuted the “Will” in sound state of mind and the attestors have seen that the
\nexecutant signed in the document and in turn the executant had seen the
\nattestors singed the document and therefore,  the probator has proved that the
\n“Will” in accordance with Section 68 of the Evidence Act.\n<\/p>\n
\t21.The next question is whether the “Will” has been executed under undue
\ninfluence by the propounder?\n<\/p>\n
\t22.It is admitted that the propounder was residing with her parents
\nnamely, the executant and the first respondent.  She was unmarried and she is
\nthe only daughter.  Whether she was in a position to influence her father to
\nexecute the “Will” only in her favour?  It is well settled that simply because
\nthe propounder was living along with the executant will not necessarily mean
\nthat she or he exercised such undue influence.  The executant was hale and
\nhealthy and he was in sound state of mind.  This fact are proved by the conduct
\nof the parties.  He had prosecuted cases against his son and he had been in
\nconnection with his brother and he had alienated some of his properties during
\nthe relevant period.\n<\/p>\n
\t23.It is also admitted that the relationship between the father and the
\nson was strained. Suits were pending between the father and the son.  However,
\nthe recitals in the deed would show that he had considered the position of the
\nson also before bequeathing the property in favour of his only daughter.  It is
\nalso to be seen that he has bequeathed only one property under the “Will” and
\nnot the entire property. The remaining portion of the property was settled under
\na settlement deed. The Trial Court has rightly found that had he been
\ninfluenced, he would have settled both the properties under the “Will” and he
\nwould not have chosen two modes of transfer of property.  Therefore, these
\ncircumstances would show that there is no undue influence by the daughter over
\nthe father.\n<\/p>\n
\t24.As far as the suspicious circumstances surrounding the execution of the
\n“Will” is concerned, the respondent was not able to bring any such suspicious
\ncircumstances except the “Will” was executed on 11.05.1987 and was not
\nregistered on the same day and a settlement deed was executed on 19.05.1987 and
\nboth the documents were registered only on 21.05.1987.  The another circumstance
\ncanvassed is that the attestors and the scribe are the same for both the
\ndocument.\n<\/p>\n
\t25.In 2007(11) SCC 357 (cited supra), it was held that it is well settled
\nthat the functions of the Probate Court are to see that the “Will” executed by
\nthe testator was actually executed by him in a sound state of mind without
\ncoercion or undue influence and the same was duly attested.\n<\/p>\n
\t26.In my considered opinion, the propounder had proved the execution of
\nthe “Will” by the testator in a sound dispensing state of mind without any
\ncoercion or undue influence and there is no suspicious circumstances surrounding
\nthe execution of the “Will”.  The alleged suspicious circumstances by the
\nrespondents is not well founded.\n<\/p>\n
\t27.Only when there exist suspicious circumstances, the onus would be on
\nthe propounder to explain the circumstances to the satisfaction to the court
\nbefore the will can be accepted as genuine.  The burden of prove that the “Will”
\nhas been executed and is a genuine document is always on the propounder and
\nshe\/he is to prove that the testator has signed the “Will” in a sound state of
\nmind.  Sufficient evidence was let in to prove the execution.   The “Will” was
\nexecuted in the year 1987 and thereafter, the executant had participated in
\nvarious litigations against the respondents and he died only in the year 1988,
\nafter 1 . years of execution of the “Will”.  When the dispossession appears to
\nbe natural, the Will has to be accepted and the Trial Court was right in
\naccepting the  “Will” and had issued probate.  I have no reason to interfere
\nwith the  decree and judgment of the trail court. The points are decided
\naccordingly. The order of the lower court is confirmed.\n<\/p>\n
   In the result the appeal is dismissed.  No costs.  Consequently, connected
\nM.P.is closed.\n<\/p>\n
nbj<\/p>\n
To<\/p>\n
The District Judge,
\nKanyakumari District,
\nNagercoil.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court G.Wilson vs Stella Mary on 9 March, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-215055","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nG.Wilson vs Stella Mary on 9 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/g-wilson-vs-stella-mary-on-9-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"G.Wilson vs Stella Mary on 9 March, 2010 - 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