Antony v. Ouseph — 1989 DIGILAW 444 (KER)

JUDGMENT P.C. Balakrishna Menon 1. This appeal by the plaintiff is against the dismissal of his application under S.278 of the Indian Succession Act, 1925 for the grant of letters of administration annexed to Ext. A1 Will executed by his late father Ouseph Mathai on 27-11-1962. The application was opposed by the first defendant. It was accordingly numbered and tried as a suit. 2. The plaintiff and defendants 1 and 2 are the sons of late Ouseph Mathai. He had six daughters of whom five were married on the date on which lie executed Ext. A1 Will. The youngest daughter Ealikutty still unmarried was staying with him until his death on 8-12-1962. Ouseph Mathai owned 1.40 Acres of garden land in Perumbavoor in three separate plots. In one of the plots, there is a shop building and in another one, there is a residential building. He owned also 42.50 cents of wet land. As per the Will Ext. A1 dated 27-11-1962 Ouseph Mathai has bequeathed his properties in favour of his three sons, namely; the plaintiff and defendants 1 and 2. The properties are divided into four schedules as per the will. The B schedule consisting of 57 cents of garden land with a residential building is bequeathed to the first defendant The C schedule consisting of 21 cents of garden land is bequeathed to the plaintiff 36 cents of garden land and 21.25 cants of paddy land comprised in the D schedule are bequeathed to the second defendant. The A schedule takes in 26 cents of garden land with a shop building standing thereon and 21.25 cents of paddy land. The A schedule properties are also bequeathed to the plaintiff burdened with certain liabilities mentioned in the will. The plaintiff is directed to incur the expenses for the marriage of Ealikutty estimated at Rs. 600/-. He is directed to pay Rs. 200/- to the eldest daughter of the testator. A sum of Rs. 175/- is directed to be paid to Cheriyath Variyath in discharge of a debt due by the testator. The plaintiff is also directed to bear the expenses of certain religious ceremonies in a church estimated at a cost of Rs. 100/-. Thus in all he bequest of the A schedule properties to the plaintiff is burdened with a liability estimated at Rs. 1,075/-. 3. The suit was resisted by the first defendant. The plaintiff is also directed to bear the expenses of certain religious ceremonies in a church estimated at a cost of Rs. 100/-. Thus in all he bequest of the A schedule properties to the plaintiff is burdened with a liability estimated at Rs. 1,075/-. 3. The suit was resisted by the first defendant. According to him Ouseph Mathai had no testamentary capacity at the time when he executed Ext. A1 will and for that reason the will is to be held as invalid and inoperative. The first defendant does not dispute the execution of the will by the testator. According to him Ext. A1 will happened to be executed at the behest of the plaintiff at a time when Ouseph Mathai was laid up in the Chidambaram Chettiar Memorial Hospital suffering from terminal cancer. The plaintiff was employed in North India in the Hindustan Construction Corporation. He came home only in November 1962 at a time when the father was seriously ill. Ouseph Mathai was admitted in the hospital. He had to undergo an operation and the will Ext. A1 was executed about a week after the operation. He was discharged from the hospital 10 or 11 days after the operation and he died on 8-12-1962. The will Ext. A1 is attested by PW 2, a coworker of the plaintiff. The Sub Registrar was brought to the hospital and the plaintiff got the will registered in the hospital. According to the first p defendant the testator had no testamentary capacity. The bequests under the will are not fair and equitable, and the will is also invalid on the ground that it was brought about by the plaintiff to enrich himself at the expense of defendants 1 and 2. 4. The court below has dismissed the suit on its finding that the propounder has not satisfactorily explained the suspicious circumstances surrounding the execution and registration of the will. 5. Learned counsel for the appellant submits that the bequests under the will are not inequitable. The evidence in the case shows that the testator was in a sound state of mind and he had full testamentary capacity at the time when he executed the will. 5. Learned counsel for the appellant submits that the bequests under the will are not inequitable. The evidence in the case shows that the testator was in a sound state of mind and he had full testamentary capacity at the time when he executed the will. Counsel for the first defendant points out that the suspicious circumstances surrounding the execution and registration of will are not properly explained by the propounder, the propounder had taken an active part in the execution of the will, the bequests under the will are not fair and equitable and the registration by itself will not validate the Will especially in the context of the present case where the Sub Registrar has not been examined to prove the genuineness of the will. 6. The first defendant in his written statement has not raised a plea that the bequests under Ext. A1 are not fair and equitable. The evidence in the case clearly shows that the testator had full testamentary capacity and the will was executed at his own free will. To a pointed question to the first defendant examined as DW 1, he was not able to deny that the will was executed by the father fully conscious of what he was doing. DW 1 has categorically admitted that the testator was fully conscious until his death on 8-12-1962. DW 1 has also stated that he is not aggrieved for the reason that the father has given a larger extent of property to the plaintiff. Ext. B1 is an agreement for sale of the A schedule property by the plaintiff to the first defendant. The agreement is signed by the plaintiff and the first defendant. The plaintiff, however, disputes his signature in Ext. B1 Ext. B1 Produced in court by the first defendant and proved by the scribe examined as DW 2 affirms the Will Ext. A1. The agreement is for sale of the A schedule properties by the plaintiff to the, first defendant for the consideration mentioned therein. DW 2, the scribe of Ext. B1, has deposed that there were disputes between the parties at the time when the testator was about to die and it was in settlement of those disputes that the agreement Ext. B1 happened to be executed. DW 2, the scribe of Ext. B1, has deposed that there were disputes between the parties at the time when the testator was about to die and it was in settlement of those disputes that the agreement Ext. B1 happened to be executed. DW 2 has also deposed that the testator was at loggerheads with the first defendant for the past several years, they were residing separately and the plaintiff was looking after him during his last days. He has also deposed that he had met the testator at the time when he was laid up in the hospital and had conversed with him relating to various makers including his state of health. The evidence of DW 2 would clearly indicate that the testator though suffering from cancer was alert in his mind and there was no failure of his mental faculties. Ext. B1 agreement for sale affirms the obligations charged on the A schedule properties, and on execution of the sale deed by the plaintiff to the first defendant the assignee is required to discharge those obligations. On the evidence in the case it cannot be said that the bequests under Ext. A1 are inequitable or unnatural. The father had confidence that the plaintiff would discharge his obligations burdened on the A schedule properties. He had no such confidence in the first defendant. The evidence shows that the second defendant was mentally retarded and he cannot be expected to take up the responsibilities of discharging the father's obligations referred to in his will Ext. A1. It is no doubt, true that the plaintiff had got the will prepared and had also made arrangements for its registration in the hospital. Since he is the only son looking after the father in his last days it is only natural that the father had asked him to get the will prepared and make arrangements for its registration. On the materials on record, we are satisfied that the circumstances in the case are not such as would cast a serious burden on the propounder to explain. The explanation offered and the admissions made by DWs 1 and 2 are sufficient to dispel all suspicions in the matter of execution and registration of the will. 7. On the materials on record, we are satisfied that the circumstances in the case are not such as would cast a serious burden on the propounder to explain. The explanation offered and the admissions made by DWs 1 and 2 are sufficient to dispel all suspicions in the matter of execution and registration of the will. 7. The Supreme Court ia Purnima Debi v. Khagendra Narayan ( AIR 1962 SC 567 ) following its earlier decision in H. Venkatachala Iyengar v. B. N. Thimmajamma ( AIR 1959 SC 443 ) has laid down the law relating to proof of will. It is held that the mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S.63 of the Indian Succession Act. The onus of proving the will is 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 are sufficient to discharge the onus. Where, however, there are 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. If the caveator alleged undue influence, fraud or coercion, the onus would be on him to prove the same. With regard to the registration of the will, it is observed at page 574: "There is no doubt 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 suspicion 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 there after 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, by seeing the testator reading 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. It is not unknown that registration may take place without the executant really knowing what he was registering". 8. PW 2 is an attestor of Ext. A1 will. The evidence adverted to above dispels all suspicions with regard to the circumstances relating to the execution of the will. PW 2 was also present at the time of registration and he has deposed that he has seen the Registrar talking to the testator. There is nothing on evidence to show that the registration was done in a perfunctory manner and that the Officer registering the will did not perform his duties as required by law. 9. We are, therefore, of the view that the registration of the will in the present case is a factor in favour of genuineness of the will. In Surendra Pai v. Saraswati Arora and another (1975 (1) SCWR 488) it is observed at page 497: "The propounder has to show that the will was signed by the testator: that he was at the relevant, time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the 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. Once these elements are established, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair or where there are other reasons for doubting that the dispositions of the will are not the result of the testator's free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the will is accepted. Again in cases where the propounder has himself taken a prominent part in the execution of the will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the Court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of case, entertain. See H. Venkatachala Iyengar v. B. N. Thimmajamma and others (1959) Supp. (1) SCR 426 and Rani Purnima Devi and another v. Kumar Khagendra Narayan Dev and another ( 1962 (3) SCR 195 )." The same principle is reiterated in Jaswant Kaur v. Amrit Kaur ( AIR 1977 SC 74 ) and in Indu Bala v. Manindra Chandra ( AIR 1982 SC 133 ). Considering the evidence on record adverted to above, we are satisfied that the will Ext. A1 is genuine and was executed by Ouseph Mathai at a time when he had full testamentary capacity. We, therefore, set aside the judgment under appeal and direct the grant of letters of administration to the estate of deceased Ouseph Mathai with a copy of the will annexed thereto. The appeal is allowed. The parties will suffer their respective costs.