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2000 DIGILAW 892 (MAD)

Robert Prabhakar v. David Ebenezer

2000-09-05

A.SUBBULAKSHMY

body2000
Judgment : 1. Plaintiff is the executor named in the Will executed by Mrs. D. Logambal which is her last Will and testament. The deceased left behind her husband G.Dyvadheenam and sons G.David Ebenezer and Robert Prabhakar the plaintiff herein. The amount of assets which are likely to come to the hands of the plaintiff does not exceed in the aggregate of a sum of Rs.27,300 and the net amount of the said assets after deducting all items which the plaintiff, by law, is allowed to deduct is of the value of Rs.26,300. The plaintiff undertakes to duly administer the property and credits of late D.Logambal and make a full and true inventory thereof. Hence, the plaintiff has come forward with this suit for probate of the Will. 2. Thedefendant filed written statement contending as follows: The will propounded by the plaintiff is not a genuine one. The deceases Logambal was actually bedridden. She did not execute the Will of her own. The Will is not in the handwriting of the deceased and the deceased was not fluent in English. The defendant was not provided with any property and there was no reason or provocation for the deceased to eliminate the defendant completely from the picture. The other property owned by the mother was sold by the parents and even the sale proceeds nor any portion thereof did not reach the defendant. It is strange that the plaintiff who is the main beneficiary under the Will is appointed as the Executor of the Will. The same is very unnatural, unreal and against law. Even the two attesting witnesses viz. R.Paul Victor Samuel and K.Yegambaram are none else than the brother-in-law and friend respectively of the plaintiff. If really the Will was a true and genuine one, the father of the parties, Dyvadheenam who was very much alive at that time should have taken the lead in execution of the Will and he should have made all preparations and be the main attesting witness of the document. The surrounding circumstances are very much against the Will and it is unnatural. The signature was obtained in blank paper and the contents of the Will was obviously filled up subsequently and it is revealed on the very look of the document. There is no signature in the second page of the Will. The surrounding circumstances are very much against the Will and it is unnatural. The signature was obtained in blank paper and the contents of the Will was obviously filled up subsequently and it is revealed on the very look of the document. There is no signature in the second page of the Will. The Will was not at all executed by the testatrix while she was in a sound disposing state of mind. The Will is unnatural. There is no detail with regard to jewels left by the deceased. The suit is liable to be dismissed. 3. Onthe above pleadings, the following issues were framed for trial: 1. Whether the Will propounded by the plaintiff dated 23. 1987 is a true, genuine and a valid one. 2. Whether the Will was executed by the deceased D.Logambal voluntarily and in a sound state of mind and health. 3. Whether the signature under the Will dated 23. 1987 obtained in a blank paper and the contents thereof filled up subsequently. 4. Whether the appointment of the beneficiary under the said Will as executor is lawful. 5. To what reliefs are the parties entitled to. 4. The plaintiff filed the suit for propounding the Will Ex.P-1 executed by his mother D.Logambal. The defendant is the brother of the plaintiff. The testatrix died on 287. Ex.P-1 Will is dated 23. 87 and it is an unregistered Will. P.W.1 speaks in his evidence that Ex.P-1 contains the signature of his mother and she did not execute any other Will prior to Ex.P-1. Under Ex.P-1 the suit property has been bequeathed to the plaintiff and he has been appointed as the executor of the Will. P.W.1 says that as he was attending his mother, the property was given to him by his mother. The defendant contends that Ex.P-1 Will is not a true and genuine one and his mother did not execute that Will and himself the other son has been completely disinherited and the plaintiff is not entitled to probate of the Will. 5. P.W.1 says that there was family settlement under Ex.P-2 and thereby property and Hyderabad was sold by his parents and the sale proceeds was given to his elder brother and his children and after that the defendant is living separately and as the defendant has been provided with the property, the plaintiff is given the property under the Will. 5. P.W.1 says that there was family settlement under Ex.P-2 and thereby property and Hyderabad was sold by his parents and the sale proceeds was given to his elder brother and his children and after that the defendant is living separately and as the defendant has been provided with the property, the plaintiff is given the property under the Will. P.W.1s evidence is that his mother was keeping good health and she was in a sound disposing state of mind at the time of Ex.P-1 and Ex.P-1 is a true and genuine document. His further evidence is that during the life time of his father, the defendant forcibly entered into the suit property and his father gave police complaint Ex.P-1. So, the evidence of P.W.1 is that the defendant has been living separately and has already been given property. Ex.P-2 reveals that an understanding has been entered between the parents and sons and the parents agreed to deposit a sum of Rs.5,000 in the name of minor children of the defendant in Indian Overseas Bank and a sum of Rs.3,000 to the defendant within three months and in case of default, provision is made for payment of interest. 6. Ex.P-2 does not say that any property was given to the defendant. No document is also produced to show that the conditions stated in Ex.P-2 were complied with. The specific case of the defendant is that his mothers signature obtained in blank paper is used and the Will is a concocted one. 7. Learned counsel for the defendant submitted that Ex.P-1 Will discloses that the testatrix had signed only in the first page. 8. On a perusal of Ex.P-1, it is seen that only at the first page of the Will, the testatrix had signed and there is no signature in the second page even though there is continuation of the Will in the second page. It also raises doubt with regard to genuineness of the Will. P.W.1s evidence is that he does not know as to why his mother did not sign in the second page of the Will. It is seen from the evidence that father of the plaintiff and defendant was alive at the time of Ex.P-1, but he has not attested the Will Ex.P-1. P.W.1 also does not know whether his father was aware of the execution of Ex.P-1. It is seen from the evidence that father of the plaintiff and defendant was alive at the time of Ex.P-1, but he has not attested the Will Ex.P-1. P.W.1 also does not know whether his father was aware of the execution of Ex.P-1. The plaintiffs father died after the death of the plaintiffs mother. Only after the death of the plaintiffs mother, the plaintiffs father also came to know about the Will. P.W.1s evidence is that he does not know anything about the execution of the Will. It is also significant to note that schedule of the property is not mentioned in Ex.P-1. The non mentioning of the schedule of the property in Ex.P-1 is another circumstance which leads to suspicion with regard to genuineness of the Will. 9. The scribe of the Will Ex.P-1 has been examined as P.W.2 is none other than the plaintiffs wifes brother. He speaks in his evidence that Ex.P-1 was written by him and at the time of Ex.P-1, the testatrix Logambal, her husband, himself and his friend Ekambaram were present and Logambal signed Ex.P-1 in the presence of all of them and the testatrix was able to physically and mentally understand when she executed Ex.P-1 and she was able to read English well. His further evidence is that Logambal consulted him for writing the Will and he consulted a lawyer, but he did not take Logambal to the lawyer. P.W.2 states that Mr.Radhakrishnan, the lawyer prepared the skeleton for writing the Will and himself elaborately prepared the Will. Ex.P1 does not indicate that the lawyer Radhakrishnan was concerned in the preparation of the Will. Even in the petition there is no mention about Radhakrishnan. P.W.2s specific evidence is that Logambals husband was not taken to Mr. Radhakrishnan and Logambal gave instructions to him for preparing the Will. P.W.2 says that Logambals husband took part in the preparation of the Will and after the death of Logambal, her husband was alive for six years and her husband Dyvadheenam did not attest the Will Ex.P-1 and no provision is also made in the Will for the testatrixs husband. 10. P.W.2 specifically states that the testatrixs husband took part in the preparation of the Will whereas the evidence of P.W.1 is that his father came to know about the Will only after the death of the plaintiffs mother. 10. P.W.2 specifically states that the testatrixs husband took part in the preparation of the Will whereas the evidence of P.W.1 is that his father came to know about the Will only after the death of the plaintiffs mother. It is the specific evidence of P.W.2 that himself and Logambals husband were present at the time when Logambal gave instructions for writing the Will. So, there is discrepancy in the evidence of P.Ws.1 and 2 with regard to execution of the Will. P.W.2 further says that immediately after the marriage, instructions were given by Logambal to prepare the Will and the draft of the Will was prepared and the plaintiff was not aware of the instructions given by the testatrix for preparing the Will. The specific evidence of P.W.2 is that at the time of writing the Will, the plaintiffs father was present. It is really surprising to note how P.W.2 the brother in law of the plaintiff was given instructions by the testatrix Logambal for writing the Will because P.W.2 himself came to be known only after the marriage of the plaintiff and when the own kith and kin were available how the testatrix chose to give instructions to the plaintiffs brother in law for writing the Will. 11. P.W.2 further states that he does not know about the provision made to the first son and also he does not know as to why Ex.P-1 was not registered. But, he states that the testatrix was having custody of the Will till her death and the signature of Logambal was only in the first page of the Will and she did not sign in the second page because there is no procedure and like that, she signed after the attestors signed. 12. So, the evidence of P.W.2 establishes that the testatrix signed the Will only after the attestors signed it. This also leads to suspicion with regard to genuineness of execution of the Will. There is no point in signing by the attestors at the first instance and then by the testatrix. The evidence of P.W.2 does not establish valid execution and attestation. Most important factor is the absence of schedule of property in the Will. P.W.2s evidence is that the description of the property is given in the body of the Will. There is no point in signing by the attestors at the first instance and then by the testatrix. The evidence of P.W.2 does not establish valid execution and attestation. Most important factor is the absence of schedule of property in the Will. P.W.2s evidence is that the description of the property is given in the body of the Will. The non-mentioning of schedule of property in the will is another suspicious circumstance surrounding the execution of the Will. The specific evidence of P.W.2 is that his acquaintance with Logambal was one week only prior to Ex.P-1 and within that one week, he came to know that there was misunderstanding between Logambal and her first son. This is also another surprising factor. 13. P.W.2 further speaks in his evidence that Logambal told his that she had already given Hyderabad property to his first son and the second son is looking after her and that he did not ask Logambal about the property given to her first son. He further says that Logambal gave instructions only in Tamil and he noted it in English and prepared the draft Will in English and the witness Ekambaram was not aware of the draft Will. With regard to the evidence of P.W.2 that Hyderabad property was given to the first son, there is no evidence. There is also no recital in the Will Ex.P-1 with regard to that, Ex.P-2 also does not recite with regard to giving the Hyderabad property to the defendant. 14. The defendant who has been examined as D.W.1 has spoken in his evidence that his parents sold the Hyderabad property, but no amount was given to him and no fixed deposit was also made in the name of his children as per Ex.P-2. His specific evidence is that Hyderabad property was sold for Rs.81,000 but he did not get any money from that amount and Perambur property was also sold by his mother for Rs.43,000 and even from that sale amount, nothing was given to him. D.W.1s evidence is that no amount was given to him by way of sale of those two properties. So, nothing in evidence transpires that the first son the defendant was provided with some properties and that is the reason why he was disinherited under the Will Ex.P-1. The defendant is none other than the first son of the testatrix. D.W.1s evidence is that no amount was given to him by way of sale of those two properties. So, nothing in evidence transpires that the first son the defendant was provided with some properties and that is the reason why he was disinherited under the Will Ex.P-1. The defendant is none other than the first son of the testatrix. So, naturally, his disinheritance also leads to suspicion with regard to genuineness of the Will. 15. D.W.1 specifically states that his mother did not execute any will, but Ex.P-1 bears his mothers signature and it is a concocted one. His evidence is that his mother handed over some blank papers signed to his father and his father also obtained her signature in four or five blank papers and at the time of executing the Will his mother the testatrix was in coma stage, bedridden and had a crack in her spinal cord and Ex.P-1 is a created document. 16. P.W.3 is another attestor to the Will. P.W.1 also does not know P.W.2. P.W.3s evidence is that Ex.P-1 bears his signature and he does not know as to who wrote the document. He also says that at the time when Logambal signed Ex.P-1, Logambal, her husband, P.W.2 and himself were present and Logambal was keeping good health when she signed the document. The evidence P.W.3 is that P.W.3 was present at the time of execution of Ex.P-1, but, he says that he does not know who wrote the document when P.W.2 claims to be the scribe of the Will. P.W.3 himself says that he is a stranger to the family. P.W.3 claims to be a friend to P.W.2. He says that he knew Logambal and her husband only after the marriage and he had gone there only once and he was not much familiar with Logambal and her husband. When he is such a stranger to the family, it is another surprising factor that how he was called to be an attesting witness for the Will Ex.P-1. 17. P.W.3 further speaks in his evidence that he was present and sitting outside when instructions were given to P.W.1 regarding the Will inside the room and the Will was written inside the house and he does not know who wrote the Will and he also does not know the contents of the Will. 17. P.W.3 further speaks in his evidence that he was present and sitting outside when instructions were given to P.W.1 regarding the Will inside the room and the Will was written inside the house and he does not know who wrote the Will and he also does not know the contents of the Will. P.W.3s evidence is that Logambal gave instructions to P.W.1 whereas the evidence of P.W.1 is that he does not know anything about the Will and he cam to know about the Will only after the death of Logambal. Further P.W.3 says that he was also not present when the Will was written. He specifically states that the Will was written inside the house and he was sitting outside and he does not know who write the Will and he also does not know the contents of the Will. So, the evidence of P.W.3 is not at all satisfactory to prove valid execution and attestation. The evidence of P.W.3 itself proves that he was not at all present at the time of Ex.P-1. P.W.3 further speaks in his evidence that his friend P.W.2 came to him and took him to the house of Logambal and when instructions were given for writing the Will, plaintiffs father alone was present and at the time of writing the Will, the plaintiff was not present in he house and he does not know whether any draft Will was prepared before writing the Will and neither Logambal nor her husband called him regarding the writing of the Will. P.W.3 also admits that Logambal did not sign in the second page of the Will. 18. So, the evidence of P.W.3 is also not sufficient to prove valid execution and attestation. P.W.2s specific evidence is that at the time of executing Ex.P-1 Logambal, her husband, himself and his friend Ekambaram were present and Logambal signed Ex.P-1 in the presence of all of them whereas the evidence of P.W.3 is that he was sitting outside and the Will was written inside the house and he does not know as to who wrote the Will. So, there is clear contradiction in the version of P.Ws.2 and 3 with regard to valid execution and attestation of the document. There are also contradictions in the evidence of P.Ws.1 to 3 with regard to valid execution and attestation. So, there is clear contradiction in the version of P.Ws.2 and 3 with regard to valid execution and attestation of the document. There are also contradictions in the evidence of P.Ws.1 to 3 with regard to valid execution and attestation. The Apex Court has held in Jaswant Kaur v. Amrit Kaur, ((1997)1 S.C.C. 369 that, “In cases where the execution of a Will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the courts conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the court that the Will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will.” The Supreme Court has held in Rani Purnima Debi v. Kumar Khagdndra Narayan Deb Rani Purnima Debi v. Kumar Khagdndra Narayan Deb Rani Purnima Debi v. Kumar Khagdndra Narayan Deb , (1962) 2 MLJ. (S.C.) 27 that, “Even where there were no allegations of undue influence, fraud or coercion, if the circumstances attending the execution of a Will gave rise to doubts, it was for the propounder to satisfy the conscience of the court. The mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a Will; though the fact that there has been registration would be an important circumstance in favour of the Will being genuine if the evidence as to registration establishes that the testator admitted the execution of the Will after knowing that it was a Will the execution of which he was admitting. Therefore, the bald fact of registration of the Will is insufficient to dispel the suspicions attending the due execution and attestation of the Will and no letters of administration in favour of the respondent can be granted on the basis of it.” 19. On a perusal of the evidence of P.Ws.1 to 3 it is clearly established that the execution of the Will is surrounded by suspicious circumstances. On a perusal of the evidence of P.Ws.1 to 3 it is clearly established that the execution of the Will is surrounded by suspicious circumstances. It is the bounden duty of the plaintiff to expel the surrounding suspicious circumstances which burden is not discharged by the plaintiff. On a perusal of the evidence of P.Ws.1 to 3 it has been clearly established that valid execution and attestation have not all been proved in this case. The contradictory evidence of P.Ws.2 and 3 does not establish valid execution and attestation and the execution and attestation of the document are surrounded by suspicion. Further, the fact that the testator has signed only in the first page and not signed in the second page when there is continuation of writing in the second page when there is continuation of writing in the second page also raises doubt with regard to valid execution of the document. The description of the property is not given in the Will and no Schedule of property is mentioned in the Will. No valid explanation is also given as to why the other natural heir the other son is disinherited. There is also no proof that the other son has been provided with and that was the reason for his disinheritance under the Will. The evidence of the attestors P.Ws.2 and 3 does not at all establish valid execution and attestation. As I have already indicated when there are own kith and kin, it is a surprise that P.W.2 the brother in law of the plaintiff was given instructions for writing the Will and P.W.3 an utter stranger to Logambal was called for attesting the will. 20. Even with regard to attestation of the document, the evidence of P.Ws.2 and 3 are contradictory. P.W.3 was not at all present at the time of writing the Will. He says that he does not know who wrote the Will whereas P.W.2 claims to be the scribe of the will. It is quite unsafe to rely upon such contradictory evidence of P.Ws.2 and 3 for valid execution and attestation. The evidence of P.Ws.2 and 3 is not cogent and convincing and it does not establish valid execution and attestation. 21. It is quite unsafe to rely upon such contradictory evidence of P.Ws.2 and 3 for valid execution and attestation. The evidence of P.Ws.2 and 3 is not cogent and convincing and it does not establish valid execution and attestation. 21. A careful analysis of the entire oral as well as documentary evidence goes to establish that execution of the Will Ex.P-1 is surrounded by suspicious circumstances and the Will Ex.P-1 is not a genuine one and the plaintiff is not entitled to probate asked for. 22. In the result, the suit is dismissed. No costs.