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2008 DIGILAW 3503 (MAD)

V. Lakshminarayanan v. S. V. Balasubramanian

2008-09-22

S.TAMILVANAN

body2008
Judgment : 1. The Original Petition in O.P.No.419 of 2006, seeking for grant of Letters of Administration of the Will, dated 14. 1978 is converted into the Testamentary Original Suit. 2. It is an admitted fact that the plaintiff and the defendant herein are sons of S.V. Venkatasubramania Dikshithar, who died on 24. 1979. According to the plaintiff, S.V. Venkatasubramania Dikshithar executed his last Will on 14. 1978, which was registered as Document in D.No.37/78 on the file of the Sub-Registrar, Mylapore, Chennai. The testator S.V. Venkatasubramania Dikshithar left behind his wife Mrs. Parvathy Ammal, his four sons and five daughters, who have been arrayed as petitioner and respondents 1 to 8 in the above said O.P. It is also not in dispute that the first defendant, one of the sons of the testator filed a caveat, though other sons and daughters of the testator did not raise any objection. S.V. Janakiraman, son of the testator and all his five daughters have filed consent affidavit for issuance of Letters of Administration for the suit Will in favour of the plaintiff. Subsequently, on account of the caveat being filed by the defendant herein, the O.P was converted into Testamentary Original Suit in T.O.S. No.34 of 2006 and the caveator S.V. Balasubramanian is arrayed as sole defendant in the suit. According to the defendant, the Will is not a true and genuine document executed by the deceased S.V. Venkatasubramania Dikshithar 3. Considering the pleadings of both the parties, the following issues were framed by this Court: 1. Whether the registered Will, dated 14. 1978 executed by the deceased S.V. Venkatasubramanian Dikshithar on the file of the Sub-Registrar, Mylapore, Chennai is genuine, true and valid in law? 2. Whether the deceased S.V. Venkatasubramanian Dikshithar executed the registered Will, dated 14. 1978 while he was in a sound and disposing state of mind? 3. Whether the allegations made by the defendant that the above said Will was obtained by fraud and undue influence are true? 4. To what reliefs the parties are entitled to? 4. It being a Testamentary Original Suit, the plaintiff has to establish that the suit Will, dated 14. 1978 is a true and genuine document, executed by the deceased S.V. Venkatasubramania Dikshithar, while he was in a sound disposing state of mind. 4. To what reliefs the parties are entitled to? 4. It being a Testamentary Original Suit, the plaintiff has to establish that the suit Will, dated 14. 1978 is a true and genuine document, executed by the deceased S.V. Venkatasubramania Dikshithar, while he was in a sound disposing state of mind. In order to establish the same, the plaintiff examined himself as P.W.1, apart from examining other witnesses, P.Ws.2 to 7. On the side of the plaintiff, Exhibits P-1 to P-14 were marked. The defendant examined himself as D.W.1 and Exhibits D-1 to D-5 were marked on the side of the defendant. 5. According to the plaintiff, who was examined as P.W.1, his father, S.V. Venkatasubramania Dikshithar executed Exhibit P-1, the registered Will, dated 14. 1978. It is not in dispute that S.V. Venkatasubramania Dikshithar died on 24. 1979 and his wife Parvathi Ammal subsequently died on 11. 1979. Exhibit P-2 and Exhibit P-3 are the Death Extracts of S.V. Venkatasubramania Dikshithar and Parvathi Ammal. A copy of the written statement filed by the defendant in O.S.No.1681 of 2005 on the file of the XVI Assistant Judge, City Civil Court, Chennai was marked as Exhibit P-4. In support of the case of the plaintiff, in order to establish the genuineness of the Will, all the five daughters of the testator, namely, Suseela, Kalpagam, Hemamalini, Mythili, Lalithambal and S.V. Janakiraman, one of the sons of the testator S.V. Venkatasubramania Dikshithar have filed consent affidavit, stating that the plaintiff is the sole legatee of the deceased S.V. Venkatasubramania Dikshithar under the Will. In the cross-examination, P.W.1 has stated that S.V. Venkatasubramania Dikshithar was aged about 68 years in 1978 and was in a sound disposing state of mind, while executing the Will. 6. In the Testamentary Original Suit, this Court has to consider whether the Will has been proved as a true and genuine document executed by the testator S.V. Venkatasubramania Dikshithar on 14. 1978, as contemplated under Section 63 of the Indian Succession Act, 1925 and as per Section 68 of Indian Evidence Act, 1972. As per law, to prove the execution and genuiness of a Will, at least the Will must contain two attestors, who have seen the testator signing the Will in a sound disposing state of mind and at least one could have been examined if the witnesses are alive. 7. As per law, to prove the execution and genuiness of a Will, at least the Will must contain two attestors, who have seen the testator signing the Will in a sound disposing state of mind and at least one could have been examined if the witnesses are alive. 7. As contended by the learned counsel appearing for the defendant, merely because it is a registered Will, it cannot be legally presumed as a true and genuine Will executed by the testator. Per contra, Mr. K.V. Subramanian, learned senior counsel appearing for the plaintiff submitted that there are two attestors, apart from identifying witnesses to the Will, Exhibit P-1, executed by the testator, however, both the attestors are not alive, hence, the identifying witness P.W.2 and others have been examined and according to him, the evidence of P.W.2 is sufficient to establish that the deceased S.V. Venkatasubramania Dikshithar had executed the Will, while he was in a sound disposing state of mind to execute the same. It is further submitted that it being a registered Will, under the Section 114(e) of the Indian Evidence Act, the Court may legally presume that the Will was registered duly by the Sub-Registrar as an official act regularly being performed. As the registration of the Will has been done before Sub-Register, Mylapore, it being an official act, having been regularly performed, it can be legally presumed that the signatory to the document was in a sound disposing state of mind at the time of signing the document and affixing his thumb impression, though the Sub-Registrar could not identify the testator. 8. The learned counsel appearing for the plaintiff relied on the following decisions, in support of his contention and submitted that the suit Will has been proved as true and genuine document executed by S.V. Venkatasubramania Dikshithar. 1. Niranjan Umeshchandra Joshi v. Mridula Jyoti Rao, (2007) 2 CTC 172 2. Kartar Kaur v. Mikho, (1996) 11 SCC 626 3. Jaswant Kaur v. Amrit Kaur, AIR 1977 SC 74 : (1977) 1 SCC 369 (FB) 4. Joseph Antony Lazarus v. A.J. Francis, (2006) 2 MLJ 428 : (2006) 2 CTC 756 5. Vidyapoornan, L.H. v. L.H. Premavathy, (2005) 1 MLJ 454 : (2005) 1 CTC 334 6. Koteeswaran, P. v. A. Shanmugam, (2007) 2 MLJ 625 : (2007) 2 CTC 760 7. P. Mani v. P. Viswanathan, (2008) 4 MLJ 1199 8. Joseph Antony Lazarus v. A.J. Francis, (2006) 2 MLJ 428 : (2006) 2 CTC 756 5. Vidyapoornan, L.H. v. L.H. Premavathy, (2005) 1 MLJ 454 : (2005) 1 CTC 334 6. Koteeswaran, P. v. A. Shanmugam, (2007) 2 MLJ 625 : (2007) 2 CTC 760 7. P. Mani v. P. Viswanathan, (2008) 4 MLJ 1199 8. Kunvarjeet Singh v. Kirandeep Kaur, (2008) 4 MLJ 239 9. Per contra, the learned counsel appearing for the defendant relied on the following decisions and submitted that the plaintiff has not proved the Will. 1. H. Venkatachana v. B.N. Thimmajamma, AIR 1959 SCC 443 2. Beni Chand v. Kamia Kunwar, AIR 1977 SC 63 : (1976) 4 SCC 554 3. Vasanthi, R. v. Janaki Devi, (1999) Supp MLJ 31 : (1999) 3 CTC 378 4. Corra Vedachalam Chetty v. G. Janakiraman, 2001 (3) CTC 283 5. Jankai Devi v. R. Vasanthi, (2005) 1 MLJ : 2005 (1) CTC 11 6. Daulat Ram v. Sodha, AIR 2005 SC 233 : (2005) 1 SCC 40 7. Meenakshiammal v. Chandrasekaran, AIR 2005 SC 52 : (2005) 1 SCC 280 8. Durga v. Anil Kumar, (2005) 11 SCC 189 9. Pentakota Satyanarayana and Others v. Pentakota Seetharaman AIR 2005 SC 4362 : (2005) 8 SCC 67 : 2006-2-LW-658 10. Jaswant Kaur v. Amrit Kaur, (supra) 11. Niranjan Umeshchandra Joshi v. Mridula Jyoti Rao, (supra) 12. Koteeswaran, P. v. A. Shanmugam, (2007) 2 CTC 760 10. In B. Venkatamuni v. C.J. Ayodhya Ram Singh and Others, (2006) 11 SCALE 148 , the Hon’ble Supreme Court has held that the Court must satisfy its conscience as regards due execution of the Will by the testator and the Court would not refuse to probe deeper into the matter only because the signature of the propounder on the Will is otherwise proved. 11. In Bindeshri Prasad v. Baisakha Bibi, AIR 1920 PC 70, it has been held “in a suit by heirs of a deceased person to declare that the alleged Will of the deceased whereby they are deprived of the succession to his estate, is a forgery, the burden of establishing without reasonable doubt that the Will propounded is of the deceased is upon those propounding the Will”. 12. 12. As ruled by the Hon’ble Apex Court in Niranjan Umeshchandra Joshi v. Mridula Jyoti Rao (supra), Section 63 of Indian Succession/Evidence Act lays down the mode and manner in which the execution of an unprivileged Will is to be proved. Section 68 postulates the mode and manner in which proof of execution of document is required by law to be attested. It in unequivocal terms states that the execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the Court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any document under the Act would not be sufficient, as contemplated under Section 68 of the Indian Evidence Act, execution of the Will must be proved at least by examining one of the attesting witnesses, if they alive. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable. 13. As per Section 68 of the Indian Evidence Act, 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. 14. The burden of proof that the Will has been validly executed is undisputedly on the propounder. The propounder is required to prove that the testator has signed the Will and that he had put his signature or thumb impression out of his own free will in a sound disposition of mind and having understood the nature and effect thereof. 15. In the instant case, admittedly, both the attestors to the Will, Exhibit P-1 died and therefore, they could not be examined as witness by the plaintiff. However, according to the learned counsel for the plaintiff, the evidence of the identifying witness, who is a known friend of the family of the testator, S.V. Venkatasubramania Dikshithar and the other oral and documentary evidence are sufficient to establish the genuineness of the Will. According to P.W.2, Mr. However, according to the learned counsel for the plaintiff, the evidence of the identifying witness, who is a known friend of the family of the testator, S.V. Venkatasubramania Dikshithar and the other oral and documentary evidence are sufficient to establish the genuineness of the Will. According to P.W.2, Mr. V. Seenivasan, S/o. M. Venkataraman, who has signed the Will as identifying witness at the Sub-Registrar’s Office, the testator was in a sound disposing state of mind, while executing and registering the Will, Exhibit P-1 by the Sub-Registrar, Mylapore, Chennai. Learned counsel for the defendant submitted that P.W.2 can be construed only as an identifying witness and not an attestor of the Will, though he has deposed evidence on the execution of the Will. 16. It is not in dispute that S.V. Venkatasubramania Dikshithar had four sons, including the plaintiff and the defendant and five daughters. He left behind his wife, apart from his sons and daughters. The wife of the testator subsequently died on 11. 1979, however, except the defendant, all other legal representatives of the testator, who were arrayed as respondents in the Original Petition have not raised any objection against the genuineness of the will. All the daughters and one of the sons, namely, S.V. Janakiraman have given consent by way of filing affidavit in favour of the claim of the plaintiff and therefore, learned senior counsel appearing for the plaintiff submitted that the objection raised by the defendant in the Testamentary Original Suit has no bona fide reasons. 17. The main objection raised by the learned counsel appearing for the defendant is that in the Will, Exhibit P-1, the testator alleged to have signed as S.V. Venkatasubramania Dikshithar in Tamil, but according to the defendant, his father used to sign only as S.V.V. Dikshithar in Tamil and not his full name. Further, though it is a registered Will, it is seen that the date of execution of the Will is 14. 1978, however, in the second page of the Will at the top, it is seen that the date available in the seal is 14. 1978, just near the signature and left hand thumb impression of the testator in the seal, the date is stated as 14. 1978, however, in the second page of the Will at the top, it is seen that the date available in the seal is 14. 1978, just near the signature and left hand thumb impression of the testator in the seal, the date is stated as 14. 1978 and in the seal at the bottom of the said page, the date is mentioned as 20.4.1978, which creates suspicion about the date of execution and registration of the Will. Though the defendant has stated in his re-examination that his father used to sign as S.V.V. Dikshithar, to establish the same no, document was produced by the defendant. 18. Learned senior counsel appearing for the plaintiff submitted that the document was executed and presented on 14. 1978 for registration before the Sub-Registrar, Mylapore, hence 14. 1978 is mentioned in the seal at the top of page number 2 of Exhibit P-1, due to pressure of work in the office, it could not be registered on the said date and was taken up on 14. 1978 for registration, hence, the next seal of the office of the Sub-Registrar contains the date 14. 1978 and for handing over the document on 20.4.1978, the seal is available with the date 20.4.1978 and therefore, there could be no bona fide suspicion or doubt either on the execution or registration of the Will. 19. According to P.W.2, the identifying witness, the testator S.V. Venkatasubramania Dikshithar has signed and also affixed his left hand thumb impression at the second page of the Will, Exhibit P-1 in his presence, then, as identifying witness, he signed. Considering the evidence, I am of the view that there is no suspicious circumstance with regard to the three dates available in the seal of the Sub-Registrar’s Office, Mylapore. According to the learned senior counsel, there is no procedural illegality or suspicious circumstances in the registration of the document. On a perusal of the document Exhibit P-1 (Original), as contended by the learned senior counsel appearing for the plaintiff, the document was executed by the testator in the presence of two witnesses on 14. 1978, then for registration, it was presented before the office of the Sub-Registrar, for which the date 14. 1978 is available in the office seal at the top of page number 2. Only on the next day, 14. 1978, then for registration, it was presented before the office of the Sub-Registrar, for which the date 14. 1978 is available in the office seal at the top of page number 2. Only on the next day, 14. 1978, the document could be registered, for which, signature of the testator with his left hand thumb impression is available, with the signature of the identifying witnesses. The date of the presentation of the Will, 14. 1978 and the date of registration 14. 1978 are available in the office seal of the Sub-Registrar. 20. As contended by the learned senior counsel for the plaintiff, as there were number of documents to be registered on 14. 1978, due to want of time, the document could have been registered on the next date on 14. 1978. It has been proved that on 14. 1978, in the presence of identifying witnesses, P.W.2 and another, the testator signed and also affixed his left hand thumb impression at page number 2 of the document, Exhibit P-1 at the Sub-Registrar’s Officer in the presence of the Sub-Registrar and only on 20.4.1978, the document was handed over, for which date seal is available. I am of the view that the explanation given by the learned senior counsel appearing for the plaintiff is acceptable, on the facts and circumstances of this case, as it being an official act, as per Section 114(e) of the Indian Evidence Act. 21. P.W.2 has deposed that as per the Will, Parvathi Ammal, wife of the testator is given life estate and all the sons including the plaintiff and the defendant are given equal shares. As contended by the learned senior counsel appearing for the plaintiff, the five daughters of the testator, who are not given any share under the Will have come to Court and supported the claim of the plaintiff and also identified the signature of their father, the testator of the Will. There is no motive attributed against the plaintiffs witnesses. Further, there is no evidence on the side of the defendant to show that the testator used to sign only as S.V.V. Dikshithar and not as S.V. Venkatasubramania Dikshithar. 22. The learned counsel appearing for the defendant submitted that even though the Will was executed in the year 1978, only on 26. Further, there is no evidence on the side of the defendant to show that the testator used to sign only as S.V.V. Dikshithar and not as S.V. Venkatasubramania Dikshithar. 22. The learned counsel appearing for the defendant submitted that even though the Will was executed in the year 1978, only on 26. 2006, the O.P was filed by the plaintiff and subsequently the same was numbered as T.O.S and there is no proper reason for not getting the Will probated, immediately, after the death of the testator. 23. According to the plaintiff, the Will was with the defendant and since there was cordial relationship between the defendant and other brothers and sisters, there was no necessity for the plaintiff to file the O.P immediately after the death of the testator. Subsequently, since the defendant started functioning against the interest of the family, there was necessity to file the O.P. According to the learned counsel for the plaintiff, the Will relates to intangible assets of trademark and the evidence of identifying witness, who was examined as P.W.2 and other evidence both oral and documentary are sufficient to establish that S.V. Venktatasubramania Dikshithar had executed the Will, Exhibit P-1 and that was registered as document before the Sub-Registrar, Mylapore, Chennai. His evidence would also show that the testator was in a sound disposing state of mind, while executing the Will and it being a Will having been registered by Sub-Registrar, it has to be presumed legally that it is an act of the public office and the same has been proved by the identifying witness, P.W.2 and therefore, according to the learned council for the plaintiff, it has been established that the Will was executed by S.V. Venkatasubramania Dikshithar, father of the plaintiff and the defendant, while he was in a sound disposing state of mind to execute the Will. 24. In the instant case, it is an admitted fact that the attestors to the Will could not be examined, since they were reported dead. Merely because the attestors were dead, it cannot be construed that there is no other way to establish the Will. Even in case of death of the attestors, the genuineness of a Will can be proved by way of available oral and documentary evidence, if such (evidence is legally acceptable. 25. Merely because the attestors were dead, it cannot be construed that there is no other way to establish the Will. Even in case of death of the attestors, the genuineness of a Will can be proved by way of available oral and documentary evidence, if such (evidence is legally acceptable. 25. Learned counsel appearing for the defendant would submit that P.W.2 as witness in a suit in O.S.No.1681 of 2005 before the City Civil Court, has given a contradictory version about the contents of the Will. However, it was submitted by the learned senior counsel appearing for the plaintiff that without producing a document, the contents of the document cannot be elicited from the witness, since it is a memory test on the contents, which cannot be the basis to test the genuineness of the document. 26. Full Bench of the Hon’ble Supreme Court in the decision, Jaswant Kaur v. Amrit Kaur (supra), has held that in the cases where 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 which becomes in such cases a matter of the Court’s 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, sets up the Will offers a cogent and convincing explanation of the suspicious circumstances, surrounding the making of the Will. 27. This Court in the decision, Vasanthi, R. v. Janaki Devi (supra), has held that when both attestors of a Will died, the same could be proved by examining the witnesses, identifying the signature of the testator and other circumstances to prove the valid execution and attestation and this Court has held that the execution of the Will and registration by the Sub-Registrar could be proved by the evidence of the identifying witness. 28. 28. Division Bench of this Court in Corra Vedachalam Chetty v. G. Janakiraman (supra), has held as follows: “Under Section 63 of the Indian Succession Act, the Will, in order to be valid, should contain the signature of the mark of the testator and be attested by two or more witnesses, who have seen or received acknowledgement from the testator about his having signed the Will. When the attestors are no more, it is wholly impractical to expect any evidence regarding the attestors having seen or received the acknowledgment of the signature of the testator. Such evidence will have to be gathered from the circumstances surrounding the execution of the document and the other circumstances shown to have been in existence”. The Division Bench has further held as follows: “As regards the disposing state of mind of the testator at the time the Will was executed, it is not the case of the defendant that at the time of the execution of the testator was incapable of signing the Will or that he was so unwell as not to able to sign the Will, or to attend the office of the Sub-Registrar for the purpose of registering the Will”. 29. In the instant case, it has to be established by the plaintiff that late S.V. Venkatasubramania Dikshithar had executed the Will in a sound disposing state of mind in the presence of two witnesses and was duly registered. The testator of the Will was identified by P.W.2 before the Sub-Registrar, Mylapore, Chennai. Though the attesting witnesses are not alive to be examined, the identifying witness has categorically stated that he had identified S.V. Venkatasubramania Dikshithar, since he was known to him as a family friend and distant relative of the testator. Though the testator had four sons and five daughters, apart from his wife as legal heirs, but except the defendant, all other legal heirs of the testator have not raised any objection, on the genuineness of the Will. In fact one of the sons of the testator, S.V. Janakiraman and all his five daughters, who were admittedly not allotted any share under the Will, have not disputed the genuineness of the document and the said circumstance should be taken note of. 30. In fact one of the sons of the testator, S.V. Janakiraman and all his five daughters, who were admittedly not allotted any share under the Will, have not disputed the genuineness of the document and the said circumstance should be taken note of. 30. As per the Full Bench decision of the Hon’ble Supreme Court Jaswant Kaur v. Amrit Kaur (supra), 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. I am of the view that the delay in filing the O.P has been satisfactorily explained by the plaintiff. Since both the attesting witnesses are not alive, the Court has to consider the evidence of the identifying witness and the other evidence more carefully to find out the genuineness of the Will. It is seen that P.W.2, the identifying witness has categorically stated that the signature and the left hand thumb impression available at page number 2 of the Will were affixed only by S.V. Venkatasubramania Dikshithar in his presence before the Sub-Registrar. There is no motive attributed against the identifying witness. The said signature of the testator available at page number 2 is identical with that of all the other signatures of the testator available in the Will. Further, it is not the case of the defendant that the signature of the testator identified by P.W.2 is different from the other signatures of the testator available in Exhibit P-1. Hence, in the light of the decisions of the Hon’ble Supreme Court and this Court referred to above, considering the evidence, I hold that the plaintiff has established the genuineness of the Will Exhibit P-1 and I am of the considered view that it has been proved beyond reasonable doubt that the testator had executed the Will Exhibit P-1, on 14. 1978 and on 14. 1978, the testator S.V. Venkatasubramania Dikshithar affixed his signature and left hand thumb impression at the second page of Exhibit P-1, at the time of registration of the Will, while he was in a sound disposing state of mind, out of his free will in the presence of P.W.2, before the Sub-Registrar. Accordingly, I answer issues 1 and 2 in favour of the plaintiff and against the defendant. 31. Accordingly, I answer issues 1 and 2 in favour of the plaintiff and against the defendant. 31. Issue No.3: The defendant in the suit has raised his objection on the genuineness of the Will and according to him, the suit Will could have been obtained by way of fraud and undue influence, however, for the said contention, there is no evidence or circumstances available in favour of the defendant. On the other hand, there is possessive evidence, as discussed in the earlier issues that the plaintiff has proved that the suit Will was executed by the testator on his own will and pleasure, while he was in a sound disposing state of mind, without any compelling circumstance. Therefore, I am of the view that it has been clearly established that the Testator S.V. Venkatasubramania Dikshithar executed the Will on 14. 1978 and the same was presented for registration before the Sub-Registrar on the same date. However, due to administrative reasons, it could be registered only on 14. 1978 by the Sub-Registrar and P.W.2 had been the identifying witness and on the next day, the Will was delivered by Sub-Registrar’s Office. The available date and seals of the Sub-Registrar clearly prove the aforesaid circumstances, for which the latin maxim ‘Res ipsa loquitur’ is squarely applicable so far as three dates and seal of the Sub-Registrar available at page number 2 is concerned, for which no further evidence is required. Therefore, I am of the view that the allegations made by the defendant that the suit Will was obtained by fraud and undue influence cannot be accepted and accordingly, the issue number 3 is answered against the defendant and in favour of the plaintiff. 32. Issue No.4: In view of the findings given for issues number 1 to 3, it has been made clear that the plaintiff has established that the suit Will is a true and genuine document, which is legally enforceable, hence, the plaintiff is entitled to get a decree as prayed for in the Testamentary Original Suit. 33. In the result, suit is decreed as prayed for. Issue letters of administration in favour of the plaintiff on executing a bond for sum of Rs.5,000/-.