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2001 DIGILAW 758 (MAD)

Dr. S. Swamy and others v. G. Kumar

2001-07-13

PRABHA SRIDEVAN

body2001
JUDGMENT: The grant of succession certificate is being challenged in this appeal. The Will of one Gopi Pillai dated 26.8.1979 is the basis of these proceedings. Gopi Pillai had two children through his first wife who are the appellants herein and one son and three daughters through his second wife. The son is the respondent herein. It is not in dispute that the first appellant herein was not well disposed towards his father Gopi Pillai. During Gopi Pillai’s lifetime, the father and son fought several legal battles. Gopi Pillai died on 12.9.1988. It is the case of the first appellant that on 11.9.1988, he executed a Will, thereby revoking all previous Wills. The respondent herein applied for grant of succession certificate in his favour on the basis of the Will dated 26.8.1979. This was granted by the Court below against which the present appeal has been filed. 2. Mr.T.V.Ramanujam, learned senior counsel appearing for the appellants submitted that the Will must be attested by two or more witnesses in accordance with Sec.63 of the Indian Succession Act and therefore, the Will can be used in evidence only by calling at least one of the attesting witnesses for proving its execution as per Sec.68 of the Indian Evidence Act. The scribe who wrote the Will dated 26.8.1979 is one Udayar Pillai who was examined as R.W.2. He is also the scribe of the Will dated 11.9.1988 propounded by the appellants herein. Learned senior counsel would submit that it is his practice to maintain a ledger of the copies of all the documents that he has written. He also submitted that it is Udayar Pillai’s evidence that the Will was handed over to him by Gopi Pillai in 1979 without affixing his signature directing him to obtain the witnesses’ signature and that since he could not go, his assistant Mani obtained those signatures from the attesting witnesses. Therefore, the learned senior counsel would submit that the attestation is not in conformity with the provisions of Indian Succession Act. When the witnesses had attested the Will even the testator had signed, it will not amount to attestation. Further, when the scribe of the Will had stated that the testator and the attesting witnesses had not signed at the same time and had not seen each other affixing their signatures, the conditions regarding attestation had not been satisfied. When the witnesses had attested the Will even the testator had signed, it will not amount to attestation. Further, when the scribe of the Will had stated that the testator and the attesting witnesses had not signed at the same time and had not seen each other affixing their signatures, the conditions regarding attestation had not been satisfied. On the contrary, with regard to the second Will dated 11.9.1988, the said Udayar Pillai had clearly stated that he and the other attesting witness had signed in the presence of Gopi Pillai and Gopi Pillai had also singed in their presence and that he had also read the Will for 10 minutes. Therefore, according to the learned senior counsel, while the second Will had been properly executed and attested, the first Will was not, and therefore, succession certificate ought not to have been granted. He also referred to the evidence of R.W.3 Dr.Muthiah, who had been examined to show that Gopi Pillai was quite conscious on 11.9.1988, the date of the second Will. According to the learned senior counsel, in contrast to the clear and cogent evidence regarding the execution and due attestation of the second Will, the Will of the year 1979 is evidently not properly attested. He also referred to the evidence of P.W.2, the attesting witness of the first Will. The learned senior counsel submitted that, when the attesting witness does not even know the manner in which his signature was obtained, it was not open to the Additional Subordinate Judge, Tirunelveli to accept the attestation as proper attestation. 3. Mr.A.Sankara Subramanian, learned counsel for the respondent, on the other hand, submitted that the 1979 Will was a registered Will. It had been referred to by the testator in their proceedings and therefore, no further proof is required. Further, in earlier proceedings between the maternal grandfather of the appellants herein and Gopi Pillai, the respondent sought to be brought on record as the legal representative of Gopi Pillai on the basis of the Will. All these objections were raised at that time and it was held therein that the Will was genuine. Further, in earlier proceedings between the maternal grandfather of the appellants herein and Gopi Pillai, the respondent sought to be brought on record as the legal representative of Gopi Pillai on the basis of the Will. All these objections were raised at that time and it was held therein that the Will was genuine. The matter went up to Supreme Court and the Supreme Court did not interfere with the decision of this Court in the C.R.P. that considering the objections already raised by the deceased Gopi Pillai and also the claim put forward by the first respondent herein that he is entitled to the property under the Will of his father and those properties are not trust properties, the impleading of the first respondent cannot be taken exception to. Therefore, according to the learned counsel, the appellants are trying to reagitate what has already been decided. He also submitted that the testator was admitted in hospital in a very critical condition and the evidence is that he was administered oxygen throughout 11.9.1988 and in those circumstances, it is unbelievable that he would have executed a Will on that day. It was also relevantly pointed out that the testator died on 12.9.1988. Learned counsel would submit that Udayar Pillai, the scribe, is a habitual forger of documents and therefore, his evidence should not be given any credence. There was another attesting witness to the second Will and he was allegedly a staff nurse, but this witness was not examined. It was also pointed out that when it is the case of the appellants that one Mani who is the assistant of Udayar Pillai was sent to obtain the signatures of the attesting witnesses, he should have been examined. The fact that he has not been examined throws a doubt on the truth of the case. The learned counsel also submitted that in the 1979 Will, the testator had clearly said that the first appellant should not perform his obsequies and it is a matter of record that after the death of the testator on 12.9.1988, it was only the respondent who performed the funeral rites and not the first appellant. Therefore, this would also go to show that the first Will was alone the true Will and the second Will was fabricated. Therefore, this would also go to show that the first Will was alone the true Will and the second Will was fabricated. Learned counsel would therefore, submit that it was only on careful consideration of the materials on record that the succession certificate was granted and there was no reason to interfere with the same. 4. Sec.63 of the Indian Succession Act deals with execution of unprivileged Wills and Sec.63(c) deals with attestation. It runs thus: “Sec.63: Execution of unprivileged Wills: Every testator, not being a soldier employed in an expedition nor engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules: (a) ... (b) ... (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator, a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary”. 5. The relevant provision in Indian Evidence Act is Sec.68 which reads thus: “Proof of execution of documents required by law to be attested: If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied”. 6. The evidence of the attesting witness Dashinamurthy in chief examination is as follows: In cross, he says that: 7. 6. The evidence of the attesting witness Dashinamurthy in chief examination is as follows: In cross, he says that: 7. Of course, he also says that he does not know in how many pages Gopi Pillai signed in the 1979 Will which is Ex.P-3 and he also says that he does not know with which pen, he and Sivaraman Pillai, the other attesting witness signed. It must be remembered that in 1991 when this witness was examined, 13 years had lapsed since the date of the execution of the Will. So the inability of the witness to answer to this question is really not material. The statement made by this witness which was pointed out by the learned senior counsel for the appellants which is extracted above only means that the witness has no knowledge that Udayar Pillai sent an assistant to obtain his signature. That does not in any way dislodge what he has clearly stated in the chief examination regarding the manner of attestation. In fact, immediately after this sentence that has been extracted in the paragraph above, he states as follows: 8. Therefore, it is clear that there had been two attesting witnesses who saw Gopi Pillai sign Ex.P-3, the 1979 Will and who signed in each of their presence and in the presence of the testator. The Will not only satisfies the requirements of Indian Succession Act, but has also been received in evidence in accordance with the provisions of the Indian Evidence Act. In addition to this fact, we have other circumstances to demonstrate the truth and validity of this Will. The deposition of Gopi Pillai, the testator in O.S. No.135 of 1981 was marked in evidence as Ex.P-4 as the evidence of a deceased person. In this evidence, Gopi Pillai had stated that on 26.8.1979, he had executed a Will in favour of the respondent. This deposition is marked as Ex.P-4. The order passed in I.A. No.335 of 1988 in O.S. No.53 of 1984, which was a suit filed by the maternal grandfather of the appellants against Gopi Pillai was also marked as Ex.P-2. This order was passed in the application filed by the respondent to bring himself on record as the legal representative of Gopi Pillai as per the 1979 Will. This order was passed in the application filed by the respondent to bring himself on record as the legal representative of Gopi Pillai as per the 1979 Will. In this I.A. 17 documents were marked on the side of the respondent and 4 documents on the side of the appellants herein. The respondent and Dakshinamoorthy, who has deposed as P.W.2 in the present O.P., had given evidence as P.Ws.1 and 2. Two Doctors and Udayar Pillai have given evidence on the side of the respondents namely the maternal grandfather of the appellant herein and others. In this, the learned Judge disbelieved the evidence of Udayar Pillai holding that he is deliberately deposing that the attesting witnesses did not sign in the presence of Gopi Pillai, only to invalidate the 1979 Will. The learned judge also disbelieved the case of the respondents that the 1979 Will was revoked by the subsequent Will dated 11.9.1988. He held that there is no evidence to show that Gopi Pillai was in a sound and disposing state of mind at the time of execution of the Will dated 11.9.1988. For all these reasons, the I.A. was ordered impleading the respondent as the legal representative and as stated earlier, this order was challenged both in this Court as well as Supreme Court without success. This order is not only relevant but is of persuasive value regarding the validity of 1979 Will. 9. In 1956 Madras 566, it was held thus: “A Will is one of the most solemn documents known to the law by which a dead man entrusts to the living by carrying out of his wishes, and as it is impossible that he can be called either to deny his signature or to explain the circumstances in which it was executed. It is essential that trustworthy and effective evidence should be given to establish compliance with the necessary forms of law”. 10. In this case, we have the unusual advantage of the testator himself deposing about the truth of his Will. It is clear from the evidence of P.W.2 and other materials that the 1979 Will was a properly executed and attested Will. The only manner in which the Court, can refuse to give effect to the 1979 Will is by satisfying itself regarding existence of another Will subsequent to it. It is clear from the evidence of P.W.2 and other materials that the 1979 Will was a properly executed and attested Will. The only manner in which the Court, can refuse to give effect to the 1979 Will is by satisfying itself regarding existence of another Will subsequent to it. If we look at the circumstances in which the 1988 Will has been brought about, they are, to put it mildly, very suspicious. Here is a son who has fallen out with his father and in his own words, has not been on talking terms with the father from 1980. On receipt of information that his father had been admitted in hospital, he claims to have gone and seen him on 11.9.1988 in the morning and evening. He again saw his father on 12.9.1988 morning and in the evening, the father died. According to them, he knew about the execution of the Will on 11.9.1988 only through Udayar Pillai some time in 1989. It is his case that when he went on 11.9.1988, his father was talking to him. He admits in cross-examination that on 11.9.1988, in the afternoon, his father was given drips and that oxygen was administered to him. According to him, the father was conscious till he died. In contrast to this, the evidence of the respondent herein as P.W.1 is that Gopi Pillai was admitted on 10.9.1988, he suffered a heart attack on 11.9.1988 and at 5’O clock in the morning, he was given drips and at 7’O clock, since there was breathlessness, he was given oxygen and catheter was also applied to the patient. It is also his case that his father could not answer to the questions put to him by the doctor Sivaramakrishnan. In the cross-examination, he says that he is unable to say whether the father could recognise the persons who visited him because the father was unable to speak at that stage. Again in the cross-examination, he says, that right from 11th, he could not speak. 11. We have the detailed evidence of Udayar Pillai who says that on 11.9.1988, Gopi Pillai was sitting on the cot, he took half an hour to write the draft, a 3/4th hour to prepare the original Will. He admits, he does not know why Gopi Pillai was admitted in hospital on 11.9.1988. 11. We have the detailed evidence of Udayar Pillai who says that on 11.9.1988, Gopi Pillai was sitting on the cot, he took half an hour to write the draft, a 3/4th hour to prepare the original Will. He admits, he does not know why Gopi Pillai was admitted in hospital on 11.9.1988. Though in the chief-examination, he says that he went to the hospital at 8.30, in the cross, he says that he went to the hospital between 9.30 and 10.00. According to him, Gopi Pillai dictated the Will without the help of any document or other papers. According to him, throughout the period when he was writing the Will, a doctor alone was in the room with him and Gopi Pillai and no one else. At 2’O clock, he again brought the Will for signature and in his presence and in the presence of the attesting witness, the Will was executed and duly attested. In evidence, he says, he does not remember who the other attesting witness is. At about 3’O clock in the evening, he is supposed to have left the hospital. He denies that oxygen was administered to Gopi Pillai when he went. Dr.Muthiah, who was examined as R.W.3 claims to have visited Gopi Pillai at 4’O clock in the evening and that he was conscious at that time. He says, he knows what medicines were administered to Gopi Pillai, however, he would also say that he is not aware why Gopi Pillai was admitted. He also says that he does not know that Gopi Pillai was admitted for heart trouble. R.W.4 one Venkatachalam has given evidence that he went to the hospital at 6’O clock in the evening and that Gopi Pillai was fine. He denies the suggestion that oxygen was being administered to Gopi Pillai at that time. The fact that under the 1979 Will, Gopi Pillai had indicated his desire that the first appellant should not perform his last rites is not disputed. It is also not disputed that when Gopi Pillai died, it was only the respondent who performed the last rites. In this regard, the Court below rejects the truth of the second Will taking into account various factors. It is also not disputed that when Gopi Pillai died, it was only the respondent who performed the last rites. In this regard, the Court below rejects the truth of the second Will taking into account various factors. Though it is the evidence of the first appellant as R.W.1 that he visited his father on 11.9.1988, he has not stated or it is not his case that there was reconciliation between the father and son. In fact, the cases filed by the first appellant are still pending. Therefore, the Court below raised a serious doubt as to whether in the absence of any proof of reconciliation, the father and son who were on such inimical terms, would have changed their attitude to that extent that the father would have executed another Will. The lower Court also points out to the fact that though the Will was executed on 11.9.1988, the fact that the Will was executed was informed to the first appellant’s father-in-law only on 14.6.1989. All this arouses the suspicion of the lower Court. It is relevant to note that the scribe and testator of the 1988 Will, Udayar Pillai was aware of the contents of the Will. The last sentence of the Will reads that Dr.Swamy alone should perform the last rites. It is common knowledge that in our country, a great deal of sancitity is attached to the right to perform the last rites. On his own admission, Udayar Pillai was aware that, by the 1979 Will, Gopi Pillai had specifically forbidden the first appellant from doing the last rites. On the other hand, it was declared in that Will that the respondent alone had that right. It is inconceivable that in these circumstances, Udayar Pillai would not have informed the first appellant herein immediately that he alone should perform the obsequies for his father. The last Will and the last wish of the deceased is given the utmost respect by others. Care is taken to see that due compliance is made to the wishes of the deceased. If the Will of the year 1988 had been true, the first appellant would alone had performed the last rites of Gopi Pillai. This is a very strong indication that the second Will is a fabricated one. 12. Next, we come to the condition of the deceased on 11.9.1988. If the Will of the year 1988 had been true, the first appellant would alone had performed the last rites of Gopi Pillai. This is a very strong indication that the second Will is a fabricated one. 12. Next, we come to the condition of the deceased on 11.9.1988. Even the first appellant as R.W.1 admits that oxygen was being administered to Gopi Pillai and also that he was administered intravenous fluids. But the evidence of the others who claim to have visited him in the hospital is that he was absolutely normal. In fact, R.W.2, the scribe and attestor says that he was sitting up and talking to him. Each of the witnesses R.W.2, 3 and 4 appear to vie with each other to demonstrate that Gopi Pillai was conscious and it is also interesting and peculiar to note that each of them has visited Gopi Pillai at a time when the others were not there. It is almost as if the timings of their visit had been so meticulously arranged that one did not coincide with the other. It is also pertinent to note that the person who informed each of these witnesses about the illness of Gopi Pillai and the fact that he has been admitted in hospital is one Muthiah Pillai who is the father-in-law of the first appellant and who is conveniently now dead. Is it believable, I ask myself, whether this ailing man who had been admitted by the first respondent in the hospital for Miocardial infraction would meet his son, the first appellant herein who had been fighting with him several Court battles all along and with whom he was not on speaking terms from 1980 would suddenly and without any ado, change his mind and write another Will. If he genuinely wanted to writ another Will, whom will he inform first. Naturally, the first appellant, the son who is supposed to have caused the change of mind, but in this case, the son is blissfully innocent of all that transpired in the mind of the father. Though the son as R.W.1 says that he was talking to his father the morning and evening, he was not informed by the father that he is going to change the 1979 Will. Though the son as R.W.1 says that he was talking to his father the morning and evening, he was not informed by the father that he is going to change the 1979 Will. On the other hand, the father-in-law, the timing of whose visit we do not know is supposed to have called the scribe to go over to the hospital at the instance of Gopi Pillai. A perusal of the scribe’s evidence shows the meticulous details with which the timings of the preparation of draft, the reading of the Will by Gopi Pillai, the journey to his house-cum-office, the typing out of the final document are furnished even to the last minute. But to the question, Do you know the name of the other attestor? the answer is in the negative. There is absolutely no satisfactory evidence to show how and why Gopi Pillai had a change of mind. The evidence regarding attestation alone is not sufficient. A person who comes forward with a Will, revoking an earlier one should satisfy the Court that the Will was executed and attested in accordance with law, that the testator knew exactly what he was doing and that there are no suspicious circumstances attached to the Will. In this case, the attestation itself is unbelievable since R.W.2 is not a credible witness. But even if we grant that the evidence with regard to attestation is sufficient, the bringing about the Will on 11.9.1988 is very suspicious. The manner in which Udayar Pillai was summoned is not satisfactory. In fact, the evidence regarding the mental capacity of Gopi Pillai appears very artificial. 13. As stated above, the failure on the part of Udayar Pillai to bring to the knowledge of the first appellant that he alone has to perform the last rites as per the 1988 Will, the contradictions with regard to the health condition of Gopi Pillai when the respondent’s witnesses witnessed him, in particular, the evidence with regard to the deceased being administered oxygen the intravenous fluids, the manner in which the scribe is supposed to have been called to the hospital, the lack of evidence with regard to the change of mind of Gopi Pillai are all factors that prevail upon me to come to the conclusion that the 1988 Will is not a genuine Will. As against this, the 1979 Will has been proved by the evidence of the witness who is P.W.2 who has clearly stated that the two attesting witnesses saw Gopi Pillai sign the Will and Gopi Pillai saw the two attesting witness sign the Will in his presence and in each other’s presence. There was reference to the Will by Gopi Pillai himself in an earlier proceeding. The detailed order in the earlier proceedings with regard to the genuineness of the 1979 Will while not binding upon the Court deciding the grant of succession certificate, is definitely a factor that bolsters the case of the respondent. 14. The test to be applied in the case of genuineness of Wills is the usual test of the satisfaction of the prudent mind. This is what was held in H.Venkatachala v. B.N. Thimmajamma, A.I.R. 1959 S.C. 443. The nature of enquiry is also set out in this decision. It was held thus: “However, there is one important feature which distinguishes Will from other documents. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills, the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.” 15. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.” 15. Another decision with regard to the scope of enquiry by the District Judge in ordering petitions for grant of succession certificate is the one in Madhwapati Venkatakrishna Rao v. Pandia Narusubai and another, (1954)2 M.L.J. 14 , where it was held thus: A reference to Clause (3) of Sec.373 make this position clear. The Court has nevertheless to grant the certificate to the person having prima facie the best title thereto under that provision. The decisions relied upon by the learned judge do not support the proposition enunciated by him. Even those rulings lay down that it must be given to the person who prima facie has the best title. In this case the appellant claims to be a legatee under the Will, which is a registered one. If there is no other person who has got a better claim than the applicant, he has certainly a right to the grant of the succession certificate. 16. Viewed from this angle, I am of the opinion that only 1979 Will satisfies the conscience of the Court, regarding not just due execution and attestation, but also testatmentary capacity of the testator, his knowledge and approval of the contents and absence of any vitiating factor such as fraud, undue influence and so on. The grant of succession certificate is in accordance with law and need not be interfered with. The C.M.A. is dismissed with costs of Rs.2,000. C.M.P. No.16369 of 2000 is closed.