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2007 DIGILAW 733 (MAD)

P. Kotteeswaran v. A. Shanmugam & Others

2007-02-27

C.NAGAPPAN

body2007
Judgment : 1. The plaintiff filed the Petition in O.P. No.145 of 2000 for grant of Probate of the Will dated 22. 1990 and the Codicil dated 9. 1997, executed by the Testatrix-Smt. D. Jagadambal. At the instance of two of the respondents and the third defendant herein, this Court by Order dated 20.6.2001 converted the Original Petition into the Testamentary Original Suit. .2. The plaintiff has stated that he and the respondents 1 and 2 in the Petition are the sons of Paramasiva Mudaliar, the brother of the Testatrix-Smt. D. Jagadambal and the respondents 3 and 4 are the sons of Natesa Mudaliar, who is the Testatrix’s husband’s younger brother and the respondents 5 and 6 are the sons of Annamalai Mudaliar, who is the Testatrix’s husband’s elder brother and the Testatrix owned the properties in the Schedules A to E and she executed a registered Will, dated 22. 1990, bequeathing the properties in Schedules A and B in favour of her brother-Paramasiva Mudaliar, the father of plaintiff and respondents 1 and 2 in the Petition; the properties in Schedules C and D in favour of respondents 3 and 4 in the Petition and the property in Schedule E in favour of Annamalai Mudaliar, the father of respondents 5 and 6 in the Petition and after execution of the Will, the Testatrix’s brother-A. Paramasiva Mudaliar and the Testatrix’s husband’s younger brother-S. Annamalai Mudaliar passed away and the Testatrix executed a Codicil, dated 11. 1997, bequeathing the properties in Schedules A and B in favour of plaintiff and the respondents 1 and 2, who are the children of Paramasiva Mudaliar, in whose favour she bequeathed those properties under the Will and under the Codicil, she also bequeathed the properties mentioned in Schedules C and D in favour of respondents 3 and 4 in the Petition and the property mentioned in Schedule E has been bequeathed in favour of respondents 5 and 6, who are the sons of Late Annamalai Mudaliar, the Testatrix’s husband’s elder brother and under the Codicil, the plaintiff has been appointed as the Sole Executor to administer the estate of the Testatrix. .It is further stated by the plaintiff that the Testatrix Smt. D. Jagadambal passed away on 13. .It is further stated by the plaintiff that the Testatrix Smt. D. Jagadambal passed away on 13. 1998 and the Testatrix had declared in the Codicil that she had borrowed monies from M/s. S.P.M. Textiles, No.5, Shanmugam Road, Tambaram, Chennai-45 and the beneficiaries under the Will should liquidate the liabilities in equal shares and on such payments, they shall be entitled to enjoy the properties absolutely and she had also stated that in the event of failure to discharge the liabilities, there shall be a charge over their shares to that extent and the plaintiff undertook to duly administer the properties and credits of the Testatrix Smt. D. Jagadambal by paying her debts and make a full and true inventory thereof and exhibit the same before this Court within six months from the date of grant of probate to him and also render a true account of the properties and credits within one year from the said date and he has sought for proving the Will in common form and for grant of probate. 3. Defendants 1 and 2 were set ex-parte. .4. The third defendant in her written statement has stated that Duraiswamy Mudaliar married her as his second wife on 11. 1950 in the presence of relatives and friends and both of them lived together as husband and wife till his death and she continued to live in the same house and she is not blessed with any issue. According to the third defendant, her husband-Late Duraiswamy Mudaliar purchased the house and ground bearing Door No.68, Maddox Street, Vepery, Chennai-7, which is mentioned as Schedule B, in Court auction sale and also purchased the house and ground bearing Door No.27, Kannappa Mudali Street, Chennai-12, shown as Schedule A, with his own funds and he was in absolute possession and enjoyment of the properties. It is further stated by the third defendant that Annamalai Mudaliar, father of respondents 5 and 6 and the younger brother of Late Duraiswamy Mudaliar, filed a Suit in O.S. No.72 of 1982 on the file of District Munsif Court, Cheyyar for partition and possession of 1/6 share in the ancestral properties in No.93, Madipakkam Village, Cheyyar Taluk, which is shown as Schedule E and the Court found that the fourth defendant, Late Jagadambal Ammal and the third defendant herein as the legal heirs of Late Duraiswamy Mudaliar and Late Annamalai Mudaliar has also admitted that Jagadambal Ammal and the third defendant are the widows of Late Duraiswamy Mudaliar. According to the third defendant, she and Jagadambal Ammal lived in the family house and were receiving the income from the properties as absolute owners and Jagadambal Ammal was illiterate and she did not know to read and write and she could not have executed any Will or Codicil as alleged by the plaintiff. It is further stated in the written statement that Late Paramasiva Mudaliar, the brother of Jagadambal Ammal, was inimical towards the third defendant and with a view to usurp the properties, he had brought about the alleged Will in association with the Late Annamalai Mudaliar and after his death, the plaintiff created the alleged Codicil appointing himself as the sole executor and beneficiary and he has suppressed the existence of third defendant, who is the second wife of Late Duraiswamy Mudaliar, with a mala fide motive to deprive her of the properties and the Will and Codicil are forged one. According to the third defendant, Jagadambal Ammal was only a joint owner of the properties along with her and she had no right to gift the entire properties of her husband, who died intestate and without admitting, even if the Will and Codicil are true, Late Jagadambal Ammal had right to gift away only her half share of the properties and she had no right to bequeath the other half share of the third defendant and the plaintiff and his father are well aware that the third defendant is the second wife of Late Duraiswamy Mudaliar and with a fraudulent motive, they have fabricated the alleged Will and Codicil to deprive the third defendant of the properties. 5. This Court framed the following issues for trial: 1. Whether the Will dated 22. 5. This Court framed the following issues for trial: 1. Whether the Will dated 22. 1990 and the Codicil dated 9. 1997 alleged to have been executed by D. Jagadambal is true, valid and executed while in sound disposing state of mind. 2. Whether Subbulakshmi is the second wife of late Duraiswamy Mudaliar. 3. Who are the legal heirs entitled to succeed to the estate of the deceased D. Jagadambal. 4. Whether the plaintiff is not entitled for the grant of probate of the Will dated 22. 1990 and the codicil dated 9. 1997 executed by D. Jagadambal. 5. To what relief, if any. Issue No.1: 6. Ex.P-1 is the original registered Will, dated 22. 1990 executed by Smt. Jagadambal and Ex.P-4 is the original unregistered Codicil, dated 9. 1997, executed by her. The learned counsel for the plaintiff submitted that the Testatrix bequeathed the properties described in Schedules A and B of the plaint in favour of her brother-Paramasiva Mudaliar and the properties described in Schedules C and D in favour of N. Kailasam and N. Marimuthu, sons of Natesa Mudaliar, the younger brother of her husband-Late Duraisamy Mudaliar and the property described in Schedule E in favour of Annamalai Mudaliar, the elder brother of Duraisamy Mudaliar and two beneficiaries viz. , Paramasiva Mudaliar and Annamalai Mudaliar passed away and this warranted the Testatrix-Smt. Jagadambal to execute the Codicil bequeathing the properties described in Schedules A and B in favour of the children of Late Paramasiva Mudaliar and bequeathing the property described in Schedule E in favour of A. Shanmugam and A. Palani, the first and second defendants in the Suit and the sons of Late Annamalai Mudaliar and so by execution of the Codicil, the bequeath made under the Will to the respective beneficiaries has not been disturbed. Further, the learned counsel for the plaintiff submitted that both the Will and Codicil were attested by C. Sundarasamy and S.H.M. Gani and the plaintiff has been appointed as the sole executor and third defendant, alleging herself to be the second wife of Late Duraisamy Mudaliar, only contested the Suit and the plaintiff, for proving the execution of the Will and Codicil, has examined himself as P.W.1 and examined one of the attesting witnesses viz., C. Sundarasamy, as P.W.2 and the third defendant, nowhere in the written statement, has attacked the execution of Will and Codicil or has alleged any suspicious circumstances and only in para No.7 of the written statement, she has stated that Smt. Jagadambal had no occasion to execute the Will and Codicil and the attesting witness P.W.2 has spoken about the execution of the Will by the Testatrix in their presence and the attestation made by them and the plaintiff has proved the due execution of the Will as envisaged in Section 63 of the Indian Succession Act and in this regard, the Counsel relied on the decision of the Apex Court in Janki Narayan Bhoir v. Narayan Namdeo Kadam, 2003 (1) CTC 308, and the decision of a Division Bench of this Court in G. Jayaraman and others v. Ranganayagi and others, 2006 (3) MLJ 633 . The learned counsel for the plaintiff further contended that Ex.P-1 is the registered Will and a presumption shall arise to the effect that the particulars contained in the endorsement of registration were regularly and duly performed and correctly recorded and hence the plaintiff has duly discharged the burden of proof to prove the Will and in support of the same, he relied on the decision of the Supreme Court in Pentakota Satyanarayana and others v. Pentakota Seetharatnam and others, 2005 (5) CTC 207 : AIR 2005 SC 4362 . 7. 7. Per contra, the learned counsel for the third defendant contended that the Testatrix-Smt. Jagadambal was an illiterate and did not know to read or write Tamil or English and Ex.P-1-Will and Ex.P-4-Codicil are in English language and it is not stated either in the body of the documents or in the jurat portion that the contents were translated, read out and explained to Smt. Jagadambal and she understood the contents and thereafter affixed her thumb impression on those documents and both the documents are said to have been drafted by Advocates and still they have not been examined to prove that they were prepared by them as per the instructions given by Smt. Jagadambal and the plaintiff himself, in the cross-examination, has admitted that Smt. Jagadambal was an illiterate and he did not know as to whether the recitals in Exs.P-1 and P-4 were read out to her and after understanding the same, she affixed her thumb impression and hence there is no evidence to show that Exs.P-1 and P-4 were executed with full understanding of the contents therein and even assuming but without admitting that the Will and Codicil were executed by Smt. Jagadambal, in the absence of acceptable evidence to show that the Testatrix had understood the contents and then affixed her thumb impression in those documents, it cannot be stated that the execution of the Will is proved. In support of the above contention, the learned counsel for the third defendant relied on the decision of the Apex Court in Gurdial Kaur & others v. Kartar Kaur & others, AIR 1998 SC 2861 . In support of the above contention, the learned counsel for the third defendant relied on the decision of the Apex Court in Gurdial Kaur & others v. Kartar Kaur & others, AIR 1998 SC 2861 . The learned counsel for the third defendant further submitted that the attesting witness-P.W.2 in his proof affidavit-Ex.P-9 has stated that Ex.P-1-Will was executed and attested and then taken to Joint-Registrar’ s office, where the registration alone was done and whereas in his oral testimony, he has stated that the execution as well as attestation of Ex.P-1-Will was done only at the Joint-Registrar’s office and the above contradiction would only show that P.W.2 was not present at the time of execution of the Will and it is further contended that according to P.W.2, they went to Joint-Registrar’s office at about 10 a.m. and they were there for one hour and returned back home for lunch and whereas the endorsement of the Registrar on the reverse side of Ex.P-1 shows that the document was presented in the office between 3 p.m. and 4 pm and hence the testimony of P.W.2 is doubtful and cannot be accepted and the learned counsel further contended that P.W.2, in his Ex.P-9 proof affidavit, has stated that Codicil was prepared by Mr. D. Kumar, Advocate as instructed by Smt. Jagadambal and the Testratrix set her Left Thumb Impression in their presence and then, they put their signatures as witnesses and whereas in the oral testimony, P.W.2 has stated that the Testatrix-Smt. Jagadambal had not given instruction for the Codicil in his presence and it was already prepared and kept ready when he went to her house and in view of the above contradictions, P.W.2 could not have been present and the Will and Codicil are not true and genuine documents. 8. The plaintiff, being the propounder of Ex.P-1-Will, has to prove the execution of the Will. With regard to proof of a Will, the law is well settled that the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement prescribed in the case of a Will by Section 63 of the Indian Succession Act and the onus of proving the Will is on the propounder. The Supreme Court, in various decisions, has pointed out the essential facts, on proof of which, the onus on the propounder is discharged. The Supreme Court, in various decisions, has pointed out the essential facts, on proof of which, the onus on the propounder is discharged. The earliest decision to be referred to in this regard is H. Venkatachala Iyengar v. B.N. Thimmajamma and others, AIR 1959 SC 443 , in which, the Apex Court has laid down the law as under: “19. However, there is one important feature which distinguishes Wills 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.” .9. In the next decision, in Surendra Pal & others v. Dr. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.” .9. In the next decision, in Surendra Pal & others v. Dr. (Mrs.) Saraswati Arora & another, 1974 (2) SCC 600 , the Supreme Court has reiterated the law as under: .“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.” .10. Again in the decision in Gurdial Kaur & others v. Kartar Kaur & others, AIR 1998 SC 2861 : 1998 (2) LW 134, the Apex Court has held as follows: .“The law is well settled that the conscience of the Court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will.” 11. Further, the Supreme Court, in the decision in Meenakshiammal (Dead) through LRs. and others v. Chandrasekaran and another, 2005 (1) SCC 280 , has stated thus: “19. In the case of Chinmoyee Saha v. Debendra Lal Saha, it has been held that if the propounder takes a prominent part in the execution of the Will, which confers a substantial benefit on him, the propounder is required to remove the doubts by clear and satisfactory evidence. In the case of Chinmoyee Saha v. Debendra Lal Saha, it has been held that if the propounder takes a prominent part in the execution of the Will, which confers a substantial benefit on him, the propounder is required to remove the doubts by clear and satisfactory evidence. Once the propounder proves 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 disposition and put his signature out of his own free will, and that he signed it in presence of the witnesses who attested it in his presence, the onus, which rests on the propounder, is discharged and when allegation of undue influence, fraud or coercion is made by the caveator, the onus is on the caveator to prove the same.” 12. Yet again, the Apex Court has reiterated the essential facts, to be proved by the propounder to discharge the initial onus in proof of the Will, in the recent decision in Pentakota Satyanarayana & others v. Pentakota Seetharatnam & others, 2005 (5) CTC 207 : 2005 (8) SCC 67, as under: “In the instant case, the propounders were 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. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated above.” 13. In the present case, it has to be seen as to whether the plaintiff has let in satisfactory evidence to show — .(i) that Ex.P-1 Will was signed by the testatrix, .(ii) that the testatrix was in a sound and disposing state of mind at the relevant time and (iii) that she understood the nature and effect of the disposition and affixed her Left Thumb Impression in the document out of her own free will. One of the attesting witnesses viz., C. Sundarasamy, has been examined by the plaintiff on his side as P.W.2 and he has stated that he saw the testatrix affixing her Left Thumb Impression in the Will and thereafter he and another attesting witness attested the Will and at the time of execution, Testatrix-Smt. Jagadambal was in a sound disposing state of mind. 14. The other essential fact which is to be proved is that the testatrix understood the nature and effect of the disposition and put her Thumb Impression on her own free will. The specific case of the third defendant is that the testatrix Smt. Jagadambal was an illiterate and there is no acceptable evidence to show that Ex.P-1-Will and Ex.P-4 Codicil were executed with full understanding of contents therein. Ex.P-1-Will and Ex.P-4-Codicil were drafted by two different Advocates and they are in English language. P.W.1, in the cross-examination, has admitted that the Testatrix Smt. D. Jagadambal was an illiterate and she did not know to read or write Tamil or English. Ex.P-1-Will and Ex.P-4-Codicil are typed in English language and there is no recital in them stating that the contents were translated and explained to the Testatrix and after she understood it, she affixed her Left Thumb Impression and in fact the jurat portion also does not state so. For better understanding, the jurat portion in Ex.P-1-Will is extracted below: “Solemnly and sincerely affirmed and signed at Madras on 23rd day of February 1990 by the Testator and acknowledged by her to be her Last Will and Testament in the presence of us, present at the same time, who at her request in her presence and in the presence of each other, have subscribed our names as witnesses.” 15. The attesting witness, P.W.2-C. Sundarasamy, in the cross-examination has admitted that in Ex.P-1-Will and Ex.P-4-Codicil, the phrase that the contents in English was read out to Testatrix-Smt. Jagadambal and after understanding it, she put her Left Thumb Impression, is not there. It is relevant to note that this attesting witness, even in his testimony in examination in chief has not stated that the recitals of the Will were translated and orally explained to the testatrix at the time of execution of the Will and after understanding the same, she affixed her Left Thumb Impression. Moreover, the plaintiff has also not examined the scribe of Ex.P-1-Will in this regard. 16. Moreover, the plaintiff has also not examined the scribe of Ex.P-1-Will in this regard. 16. As already seen, the Testatrix-Smt. Jagadambal bequeathed the Suit properties under Schedules A to E to various persons in Ex.P-1-Will and there is no evidence at all to show that she understood the nature and effect of the dispositions and thereafter, affixed her Left Thumb Impression in it on her own free will. In other words, there is no proof adduced by the propounder to show that Ex.P-1-Will was the product of the free volition of the Testatrix-Smt. Jagadambal, who had executed the same after knowing and understanding the contents of it. Hence, the plaintiff having failed to prove this essential fact, has not discharged the burden of proof to prove the execution of the Will as well as the Codicil. The Issue No.1 is answered in negative, against the plaintiff. 17. In view of the finding rendered in Issue No.1, there is no need to go into these issues. Issue No.4: 18. Since the plaintiff has not proved the execution of the Will, he is not entitled for the relief sought for in the Suit. 19. In the result, the Testamentary Original Suit is dismissed. However, there shall be no order as to costs. Connected Application No.1121 of 2005 is closed. Issue Nos.2 and 3: