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2014 DIGILAW 764 (KER)

Mariyadas v. Benjamin

2014-09-30

ANIL K.NARENDRAN, HARUN-UL-RASHID

body2014
Judgment Harun-Ul-Rashid, J. 1. Plaintiffs are the appellants. The appeal is directed against the judgment and decree dated 30.6.2003 in O.S.No.8/2002 on the file of the II Additional District Court, Ernakulam. The said case was originally filed as L.A(OP).No.12/1999 and converted as a suit and re-numbered as O.S.No.8/2002. The suit was filed praying to grant letters of administration of the Will. The court below by the impugned judgment held that the plaintiffs failed to prove that the Will was a genuine Will executed by Eliswa fully knowing the contents of the document and knowing the impact of her act of executing such a document over her interest on her properties. The court below dismissed the suit. Aggrieved by the dismissal of the suit, the plaintiffs have preferred the present appeal. Parties are hereinafter referred to as arrayed in the suit. 2. The 2nd plaintiff and the 1st defendant are the two sons of the deceased Eliswa. Defendants 2 and 3 are her daughters. The 1st plaintiff at the time institution of the O.P was a minor. He is the son of the 2nd plaintiff. Eliswa died on 20.7.1998. The plaint schedule property belonged to deceased Eliswa. Eliswa executed the Will on 18.12.1995 as her last Will. As per the said Will, plaint schedule property was bequeathed in favour of her grandson, who is the 1st plaintiff and son of the 2nd plaintiff. The 1st defendant contested the suit. He contended that the alleged Will is not a genuine Will, that late Eliswa had earlier executed her last Will in the year 1988, that Eliswa was laid up from the year 1994 up to her death and that she was not in a position to execute the Will or to do her day-to-day affairs. It is also contended that the Will was executed by exercising coercion, misrepresentation and undue influence. It is further contended that the Will was executed without knowing the contents of the document and is a forged one. 3. Plaintiffs examined PWs 1 to 4. PW1 is the 2nd plaintiff, PW2 is the advocate who drafted the Will, PW3 is the attesting witness. Exts.A1 to A3 are the documents produced by the plaintiffs. The 1st defendant was examined as DW1 and Exts.B1 to B6 were marked on his side. 3. Plaintiffs examined PWs 1 to 4. PW1 is the 2nd plaintiff, PW2 is the advocate who drafted the Will, PW3 is the attesting witness. Exts.A1 to A3 are the documents produced by the plaintiffs. The 1st defendant was examined as DW1 and Exts.B1 to B6 were marked on his side. The court below examined the question as to whether the Will dated 18.12.1995 marked as Ext.A3 is genuine or not. The court after appreciating the evidence stated the reasons in paragraph 13 to 18 to find that the plaintiffs failed to remove the suspicious circumstance seen in execution and registration of the Will. 4. Deceased Eliswa has four children at the time of her death. She was the owner in possession of 11.25 cents of land. Out of the said extent, earlier she gave 3.833 cents of land to the 2nd plaintiff. The balance land is the subject matter of the suit. 5. The plaintiffs' case is that deceased Eliswa had executed Ext.A3 Will dated 18.12.1995 bequeathing the plaint schedule property in favour of her grandson. It is alleged that deceased Eliswa was in a sound state of mind at the time of execution of the Will and that she had executed the Will knowing the consequences of executing the Will and the impact of her acts in the property. Contesting defendant contended that deceased Eliswa was laid up from 1994 up to her death in 1998, that she was not physically and mentally capable to execute the Will and had executed the Will without knowing the contents of the documents. The main contention raised by the defendant is that the Will was happened to be executed under coercion, misrepresentation and undue influence. Ext.A3 is the Will. Admittedly, deceased Eliswa had earlier executed a registered Will in the year 1988. She was aged 69 as on the date of execution of Ext.A3 Will. In the first page of Ext.A3 itself the Will referred the execution of the registered Will in the year 1988. Deceased Eliswa cancelled the said Will and alleged to have executed Ext.A3 Will. In page 2 of Ext.A3 it is stated that her two daughters, who are defendants 3 & 4, were given in marriage and that at the time of marriage they were given gold ornaments and other assets. Deceased Eliswa cancelled the said Will and alleged to have executed Ext.A3 Will. In page 2 of Ext.A3 it is stated that her two daughters, who are defendants 3 & 4, were given in marriage and that at the time of marriage they were given gold ornaments and other assets. The Will expressed the testator's wish and directed the beneficiary to pay Rs.25,000/- each to the daughters. It is further stated in page 2 that her son, who is the 1st defendant, had harassed her mentally and physically and had driven away her from the tharavad house. It is further mentioned that she has filed O.S.No.687/1990 against the 1st defendant praying for a mandatory injunction restraining the 1st defendant from interfering with her peaceful possession and enjoyment of the property. The appeal filed as A.S.No.67/1993 before the Sub Court, Kochi, was allowed and a decree was passed granting the prayer in the plaint for the reasons stated which is extracted above. The testator decided not to give the balance property to the 1st defendant. She bequeathed the property in favour of the son of the elder son. It is further stated that after she was driven away from her house by the 1st defendant she was under the care and protection of her elder son, who is the 2nd plaintiff in the suit. The property bequeathed is 7.392 cents and the residential house situated therein. After executing Ext.A3 Will she lived for over a period of 2 years and died on 20.7.1998. 6. The burden to establish that Ext.A3 Will is a genuine Will executed by deceased Eliswa is on the plaintiffs. In this case, the propounder of the Will are the plaintiffs. Neither the 1st plaintiff nor the 2nd plaintiff participated in the execution of the Will. They came to know about the execution of the Will only after 30 days of the death of Eliswa. The Will confers substantial benefit to the plaintiffs. It is for the propounder to prove that the Will was signed by the testator, that she was at the relevant time was in sound disposing state of mind, that she understood the nature and the impact of acts on the Will and she put her signature out of free will and she signed in the presence of witnesses, who attested the Will in her presence. If suspicious circumstances exists surrounding the execution of the Will, it is for the propounder to remove the doubts by clearing all suspicious circumstances. The Will was admittedly a registered Will. The testator lived for 2 years after the execution of the Will. The deprivation of a due share to the natural heirs itself is not a factor which would lead to the conclusion that there exists suspicious circumstances surrounding the execution of the Will. 7. It is settled principles of law that even the absence of any specific denial of execution of a Will or even an admission of its existence, will not absolve the duty of the propounder of a Will to prove its genuineness and the further duty to dispel the suspicious circumstances, if any, surrounding its execution. It is settled law that in case of existence of any suspicious circumstances surrounding the execution of the Will, the court naturally expects that all legitimate suspicion should be completely removed before that document is accepted as the last Will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus on the propounder very heavy; and, unless it is specifically discharged, the courts would be reluctant to treat the document as the last Will of the testator. In case the defendant alleges undue influence, fraud and coercion in respect of the execution of the Will propounded, it is for the defendant to prove such pleas; it would be the initial onus on the part of the propounder to remove any such legitimate doubts in the matter of execution of the Will. 8. The learned counsel for the 1st defendant placed reliance on the decisions reported in Meenakshiammal & others v. Chandrasekaran & another ( 2005(1) SCC 280 ), Babu Singh & others v. Ram Sahai @ Ram Singh ( AIR 2008 SC 2485 ) and Venkatamuni v. Ayodhya Ram Singh (2007(1) KLT SN 66) and contended that onus of proving the Will is on the propounder and that in the facts and circumstances of the case, plaintiffs have failed to discharge the burden. It is further contended that the oral testimonies of the witnesses of plaintiffs are not trustworthy, that the court below appreciated the evidence in the correct perspective and rightly held that the plaintiffs failed to remove the suspicious circumstances seen in the execution of the Will. It is further contended that the oral testimonies of the witnesses of plaintiffs are not trustworthy, that the court below appreciated the evidence in the correct perspective and rightly held that the plaintiffs failed to remove the suspicious circumstances seen in the execution of the Will. It is further submitted that the plaintiffs failed to prove the Will as a genuine Will executed by Eliswa fully knowing the contents of the document and knowing the impact of her acts of executing such document over her interest over her properties. 8. In the facts and circumstances, the following mandates of law also assumes importance. (i) The propounder of the Will has 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 and that she understood the nature and effect of the dispositions and put her signature to the document of her own free will. (ii) When the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound disposing state of the testator's mind and her signature as required of law, Court would be justified in making a finding in favour of the propounder. (iii) The onus of proving the Will is on the propounder. In the absence of suspicious circumstances surrounding the execution of the Will proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. (iv) Any and every circumstance is not a "suspicious" circumstance. A circumstance would be "suspicious" when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. (v) What are the suspicious circumstances must be judged in the facts and circumstances of each particular case. It is obvious that for deciding the material questions of fact regarding the genuineness of the Will, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. (v) What are the suspicious circumstances must be judged in the facts and circumstances of each particular case. It is obvious that for deciding the material questions of fact regarding the genuineness of the Will, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. The broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. (vi) If a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a Will is registered Will it will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. The bald fact of registration is insufficient, when there are other circumstances creating suspicion on the execution of the document. (vii) There are two rules of law set out. The first is that the onus for proving the execution of the document lies in every case upon the party propounding a Will and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable testator. The second is that if a party writes or prepares a Will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court and call upon it to be vigilant and zealous in examining the witness in support of the instrument in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied, that the paper propounded does express he true will of the deceased. The law mandates that the propounder of the Will has 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 and that he/she understood the nature and depositions and put his/her signature to the document on his/her own free will. The law mandates that the propounder of the Will has 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 and that he/she understood the nature and depositions and put his/her signature to the document on his/her own free will. The principles of law stated in the paragraph supra are laid down by the Apex Court and various High Courts in a catena of decisions reported in Venka tamuni v. Ayodhya Ram Singh (2007(1) KLT SN 66), Savithri & others v. Karthyayani Amma & others ( AIR 2008 SC 300 ), Meenakshiammal & others v. Chandrasekaran & another ( 2005(1) SCC 280 ), Gnanasoundari v. Chinammal & 8 others (2000-2-L.W 658 Madras High Court) and Vadakkayuil Gopalan and others v. Vadakkayil Paru and others (2013(2) KHC 902 DB). 9. In the background of above legal principles, this Court examined the question as to whether the Will was executed by deceased Eliswa as her last Will and as to whether Ext.A3 Will is genuine or not. PWs 1 to 4 were examined on the side of the plaintiffs to prove that deceased Eliswa executed the Will fully knowing the contents of the Will and with an intention to give the property in favour of the 1st plaintiff. PW1 who is the elder son of deceased Eliswa and the father of the 1st plaintiff testified in terms of the plaint. It has come out in evidence that PW1 or his son did not participate in the execution of the Will and they got information about the execution of the Will only after 30 days from the death of testator. He got information from PW2, the advocate, who drafted the Will. PW2 deposed that he has drafted the Will as per the instructions given by Eliswa. PW2 is an advocate, who appeared for deceased Eliswa in the litigations between the 1st defendant and deceased Eliswa. PW2 was engaged by PW1 to some of the litigations between the 1st defendant and his mother and 2nd plaintiff. PW2 deposed that he has drafted the Will as per the instructions given by late Eliswa. He testified that he put his signature in the Will. He attended the residence of Eliswa in the afternoon of 18.12.1995, the date on which Ext.A3 Will was executed. PW2 deposed that he has drafted the Will as per the instructions given by late Eliswa. He testified that he put his signature in the Will. He attended the residence of Eliswa in the afternoon of 18.12.1995, the date on which Ext.A3 Will was executed. He testified that the witnesses were also present there. He read over the Will to them and handed over three documents to Eliswa. It is said that three documents were entrusted to him earlier by deceased Eliswa for the purpose of drafting the Will. It is deposed that he read over the Will to deceased Eliswa and Eliswa put her signature on the Will and witnesses also put their signatures on the Will. Ext.B1 is the vakalath executed in favour of PW2. Ext.B1 was executed on 18.12.1995. PW2 is the advocate appeared on behalf of deceased Eliswa and PW1 in O.S.No.780/1995. Vakalath was filed before the court on 22.12.1995. The advocate deposed that signatory to the vakalath signed in Ext.B1 two three days prior to 22.12.1995. He also deposed that vakalath was filled up at the time of filing the vakalath before the court. According to him, the date mentioned in the vakalath may not be the date of execution of the vakalath. The court below disbelieved the testimony of PW2 stating that the version of advocate when the vakalath was filled up on the date of filing it before the court cannot be believed. The court formed an opinion that the vakalath was executed on 18.12.1995 and therefore the version of the advocate that the deceased PW1 did not attend the office on 18.12.1995 is not believable. It is a matter of common knowledge that the vakalath may or may not be filled up on the date of execution of the vakalath. Usually, lawyers' offices filled the entries on the date of filing in court or a day before it. Therefore, there is nothing wrong in believing the version of the advocate who is managing the affairs of his office. PW2 deposed that deceased Eliswa and PW1 did not come to his office on 18.12.1995. According to the learned Judge, Ext.B1 vakalath indicate that Eliswa came to the office of PW2 on 18.12.1995. 10. The learned judge also found fault with the entry in the docket regarding the year of registration as 1996. The Will was executed on 18.12.1995. PW2 deposed that deceased Eliswa and PW1 did not come to his office on 18.12.1995. According to the learned Judge, Ext.B1 vakalath indicate that Eliswa came to the office of PW2 on 18.12.1995. 10. The learned judge also found fault with the entry in the docket regarding the year of registration as 1996. The Will was executed on 18.12.1995. The circumstances would reveal that it was intended for registration during January, 1996. We do not find any suspicion in respect of genuineness of the Will simply for the reason that the year 1996 is inserted in the docket sheet of the Will. In fact, the year was correctly written in the docket as 1996. The learned Judge without any sound reason expressed the circumstances wrongly stating that the circumstances create some suspicion in respect of the genuineness of the Will. 11. PW3 is the attesting witness. He deposed that deceased Eliswa was called upon to be present in the afternoon of 18.12.1995 at her house. He deposed that PW2 handed over the documents to Eliswa and that another witness was also present at the time of execution of the Will. He also testified that the advocate, PW2, read over the Will to deceased Eliswa and she put her signature in the presence of attesting witnesses and they put their signatures on the Will in presence of the testator. PW4 was examined to prove that Rs.25,000/-each was paid to the sisters of PW1, who are the daughters of Eliswa as per the wish made by Eliswa in the Will. 12. Ext.B5 is the copy of the deposition of Eliswa in O.S.No.687/1990. Going by her deposition, it is seen that in the year 1988 deceased Eliswa had executed a registered Will bequeathing her property in favour of all children. As on the date of execution of the said Will her intention was to give the property to all children. In the year 1990, deceased Eliswa had instituted a suit as O.S.No.687/1990 before the Munsiff Court, Munsiff Court, Kochi alleging that the 1st defendant herein is causing all sorts of obstructions in the matter of enjoyment of her property. Therefore, she sought for mandatory injunction restraining the defendant, who is the 1st defendant herein, from interfering with her peaceful possession and enjoyment. Therefore, she sought for mandatory injunction restraining the defendant, who is the 1st defendant herein, from interfering with her peaceful possession and enjoyment. The suit was decreed by the appellate court in A.S.No.67/1993 before the Sub Court, Kochi and the Second Appeal preferred by the 1st defendant was dismissed confirming the decree and judgment passed by the lower appellate court. In the year 1995, the 1st defendant filed O.S.No.780/1995 against the mother. The said suit was dismissed. From the aforesaid facts, it is clear that the 1st defendant was creating all sorts of troubles to deceased Eliswa in the matter of enjoyment of the property and her peaceful residence. In Ext.B5 deposition she also testified before the court that the 1st defendant physically and mentally tortured her and forcefully evicted her from her house. He also lodged several petitions against the mother. The testator gave oral evidence in O.S.No.687/1990. She was examined on 1.4.1993. The testator testified before the said court that she had untold sufferings as a result of inhuman treatment meted out by her from the 1st defendant. She testified that one day she was manhandled by the 1st defendant son and abused her. She also testified that on another day the 1st defendant physically pulled down her and she was thrown out of the house. She testified that from that day, she is unable to use one leg for walking. She also testified that the 1st defendant used to harass her two married daughters. In the circumstance, in the normal course of events, there is nothing wrong in the mother executing a Will in favour of her grandson through the other son disinheriting the 1st defendant. The learned judge in the judgment had given significance to trivial and technical reasons and found that there is suspicion surrounding the execution of the Will. From the facts, we find that there is no suspicious circumstance surrounding the Will and we are of the view that deceased Eliswa had executed the Will in the normal course of event which every prudent person do in the circumstance. 13. The Will executed on 18.12.1995 was presented for registration on 8.1.1996. The learned Judge observed that there is no explanation regarding the delay in producing the documents for registration. In fact, there is no delay in presenting the Will for registration. The Will was executed on 18.12.1995. 13. The Will executed on 18.12.1995 was presented for registration on 8.1.1996. The learned Judge observed that there is no explanation regarding the delay in producing the documents for registration. In fact, there is no delay in presenting the Will for registration. The Will was executed on 18.12.1995. The same was registered after X-mas holidays on 8.1.1996. The learned judge also observed that the person who introduced Eliswa before the Registrar was not examined to prove that Eliswa was the person who presented the Will for registration. Nobody has a case that there was impersonation in the matter. The Will was registered by the Registrar in accordance with law. The 1st defendant has no case that the Will was not registered nor he has a case that the Will was not presented by Eliswa but by some other lady. In the circumstance, it is not necessary to examine the person who introduced Eliswa before the Registrar. The court also compared the signature of Eliswa on the Will and the signature put at the time of registration of the Will. We have also examined all the documents. We find that there is no dissimilarity in the signature of deceased Eliswa in the documents produced before the court. The registration was done according to the provisions of law. We find that the testimonies of PWs 1 to 4 are believable and we find that there are no reasons to disbelieve the versions of PWs 1 to 4. The testimonies are reliable and accordingly we accept the versions as true. 14. This is a case where there was a strange relationship between the testator and 1st defendant. Long before the execution of Ext.A3 Will, two suits were filed making the testator as a defendant. In the light of the litigations pending between the testator and the 1st defendant and the strange relationship between them and the incidents of mental and physical cruelty meted out by her at the hands of the 1st defendant, naturally, the testator who was living with the plaintiffs for a long number of years would have a mind to execute the Will in favour of the plaintiffs. It has come out in evidence that Eliswa was under the care and protection of the plaintiffs. It has come out in evidence that Eliswa was under the care and protection of the plaintiffs. As laid down by the Supreme Court, every circumstance cannot be a suspicious circumstance, as normally the person, who knows about the parties, would be expected to help the old lady in the normal situation. Nobody would normally invite a stranger or a foe to be a scribe or a witness of the document executed in favour of her grand child. Normally, a known and reliable person, a friend or a relative is called for the purpose. This would apply to PWs 2 & 3 who helped her in executing the document. On a perusal of the evidence there is nothing to show that PWs 2 & 3 are not telling the truth. It is true that the court below has got the power under Section 73 of the Evidence Act to compare the disputed signature with the admitted signatures. Where, however, there are suspicious circumstances, the onus is on the propounder to explain all legitimate suspicions to the satisfaction of the court before it accepts the will as genuine. 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 this case, the plaintiffs proved that the Will was signed by the testator that she was at the relevant time was in a sound disposing state of mind and that she understood the nature and effect of the disposition and put her signature out of her own free will and that she signed it in the presence of the witnesses who attested in her presence. The onus which rests on the propounder is discharged. 15. No serious attempt was made by the 1st defendant to prove his contentions. It is alleged in the statement that the Will was executed by exercising coercion, mis-representation and undue influence. Except the interested testimony of DW1, no proof has been adduced in support of the said contention. No evidence has been adduced by the 1st defendant even to create a suspicion in the mind of the court regarding the genuineness of the Will. 16. The plaint schedule property was purchased by the deceased testator in the year 1973 and she was enjoying the property ever since the date of purchase. No evidence has been adduced by the 1st defendant even to create a suspicion in the mind of the court regarding the genuineness of the Will. 16. The plaint schedule property was purchased by the deceased testator in the year 1973 and she was enjoying the property ever since the date of purchase. She sold 3.833 cents of land to her elder son and the balance is the plaint schedule property. 17. Taking into consideration the facts and circumstances, we find that the plaintiffs have a strong case and are entitled to the relief sought for in the suit. In the result, the appeal is allowed. The judgment and decree passed in O.S.No.8/2002 on the file of the II Additional District Court, Ernakulam is set aside. The II Additional District Court, Ernakulam shall issue Letters of Administration to the appellants/plaintiffs in accordance with law within a period of six weeks from the date of receipt of a copy of this judgment. The parties are at liberty to apply for return of the documents produced as exhibits. There will be no order as to costs.