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2015 DIGILAW 1034 (KAR)

Benedicta Monteiro v. Thomas Monteiro

2015-09-02

RAVI V.MALIMATH

body2015
JUDGMENT : Ravi V. Malimath, J. 1. The plaintiffs filed an application for grant of letters of administration, which was numbered as P.&S.C. 94 of 1996. Objections were filed by the respondents in the said proceedings. Hence, the trial court ordered that the petition be converted into a suit. Hence, the instant suit. 2. The plaintiffs filed a suit under Section-276 of the Indian Succession Act, read with Section-26, Order-7 of the C.P.C., for grant of letters of Administration on the basis of the last Will and Testament in respect of deceased Joseph Monteiro, dated 18.05.1984, against the defendants namely, the plaintiffs' sisters and the first defendant being one of their brothers. 3. It is contended that the deceased being in a sound state of mind executed the said Will, which was registered in the Office of the Sub-Registrar at Mangaluru, by bequeathing the property in favour of the plaintiffs and defendant No. 1 namely, the four sons. The other brother Robert, having died on 05.08.1989, his wife is the third plaintiff, plaintiff Nos. 4 to 5 are sons of the third plaintiff and sixth plaintiff is the daughter. 4. It is the case of the plaintiffs that the testator died on 26.05.1984. He was aged 85 years. He died at Fr. Muller's Hospital at Mangaluru. That after the death of the Testator, the Will was in the custody of the mother of the plaintiff Nos. 1 and 2, who died subsequently. The original Will appears to have been lost or misplaced since the Testator's death and inspite of best efforts by the plaintiffs, they could not trace it. That subsequently, the Will has been acted upon and an agreement was executed between the brothers. In terms whereof, the sisters were paid cash in lieu of their share. The Will having been executed in normal circumstances, as per the wishes of the testator, the suit was filed seeking probate. 5. On service of summons, defendant Nos. 1 to 5 filed their written statements denying the averments. Their specific case is that the deceased has not executed any Will. The existence of the Will was denied. It was contended that the deceased was hospitalized at the relevant point of time and he died on 26.05.1984. Therefore, it cannot be presumed that he was in a position to understand what were the contents of the Will. Their specific case is that the deceased has not executed any Will. The existence of the Will was denied. It was contended that the deceased was hospitalized at the relevant point of time and he died on 26.05.1984. Therefore, it cannot be presumed that he was in a position to understand what were the contents of the Will. Even assuming that the Will has been attested by the Testator, the same is a result of fraud played by the plaintiff's, being the beneficiaries. The claim of money being paid to the sisters was also denied. Defendant Nos. 3 to 4 have filed their written statements on the same lines. That the Will is fraudulent and a got up document and is concocted. The suspicious circumstance is that the properties have been bequeathed only to the sons and not to the daughters. That there is no reason for the Testator to deny estate to all his children. 6. On the basis of the pleadings, the Trial Court framed the following issues and additional issues: 1. "Whether the suit Will dated 18.5.1984 is proved to be true and valid duly executed by the deceased Joseph Monteiro? 2. Whether the plaintiff is entitled for the grant of Letters of Administration? ADDITIONAL ISSUES: 3. Do plaintiffs prove that the said Will dated 18.5.1984 of Jospeh Monterio along with other documents was with the mother of the plaintiffs and defendants? 4. Did the first defendant move to the Katipalla House in terms of the Settlement under the said Will or under the circumstances stated in para - IV of the Additional W.S.?" 7. Plaintiff Nos. 1 and 2 were examined as PWs 1 and 2 and 14 documents were marked. Defendant Nos. 3 to 5 were examined on behalf of the defendants and no documents were marked on their behalf. Issue No. 1 and the additional issues were held in the negative. The suit was dismissed. Aggrieved by the same, plaintiff Nos. 3, 4, 5 and 6 have filed this appeal. 8. Learned counsel for the appellants contends that the impugned order is bad in law and liable to be set aside. That the trial court has failed to consider the material on record. That the trial court committed an error in holding that the plaintiffs have failed to prove the Will. 3, 4, 5 and 6 have filed this appeal. 8. Learned counsel for the appellants contends that the impugned order is bad in law and liable to be set aside. That the trial court has failed to consider the material on record. That the trial court committed an error in holding that the plaintiffs have failed to prove the Will. That even though the Will is a registered document, the Trial Court misread the same and held that the plaintiffs having failed to establish the Will, no probate could be granted. That substantial material has been produced in order to prove the Will. 9. On the other hand, learned counsel for the respondent Nos. 1 to 5 defends the impugned order. He contends that the Trial court has rightly passed the impugned order. That when the original Will itself is doubtful, the question of proving the Will through a registered copy does not arise for consideration. Hence, he pleads that the appeal be dismissed. 10. Learned counsel for respondent Nos. 6 and 7 namely, plaintiff Nos. 1 and 2 support the case of the appellants. 11. Heard learned counsels. 12. The following points arises for consideration in this appeal: 1. "Whether the judgment and decree of the trial court is perverse in misreading the evidence and documents on record in holding that the plaintiffs have failed to prove the Will? 2. Whether the judgment and decree of the Trial court is perverse and any interference is called for?" 13. The specific case of the plaintiffs is that the deceased having executed the Will on 18.05.1984, willed the properties in favour of the sons. He died on 26.05.1984. Thereafter, the Will was in the possession of their mother, who died thereafter. Therefore, the Will having been lost or destroyed, they have relied on the Registered Will procured form the Sub-Registrar's office. Therefore, when the original Will is not available, secondary evidence could be relied upon. 14. The same is opposed by the learned counsel for the defendants by placing reliance on Section-65 of the Indian Evidence Act, to contend that until and unless the plaintiffs are able to establish the requirements of Law, secondary evidence would not be permissible. 15. Section-65(c) of the Indian Evidence Act, reads as follows:-- "65. 14. The same is opposed by the learned counsel for the defendants by placing reliance on Section-65 of the Indian Evidence Act, to contend that until and unless the plaintiffs are able to establish the requirements of Law, secondary evidence would not be permissible. 15. Section-65(c) of the Indian Evidence Act, reads as follows:-- "65. Cases in which secondary evidence relating to documents may be given - Secondary evidence may be given of the existence, condition, or contents of a document in the following cases: (a) xxxx (b) xxxx (c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time." 16. The plea of the plaintiffs is that the document has either been destroyed or lost and therefore the certified copy of the same requires to be accepted. That on the death of his father, the Will was in the custody of their mother who died subsequently. After the death of their mother, they were not aware as to what happened to the original Will. The evidence would narrate that the Sub-Registrar was summoned to the hospital where the Testator was undergoing treatment. PW3 is the Attestor. PW1 is plaintiff No. 1. Their evidence would show that the deceased for the execution of the said Will, had secured the Sub-Registrar to the hospital for registration. The registration took place at about 5.30 p.m., on 18.05.1984. The trial court on considering this evidence, was of the view that when the registration took place in the hospital at about 5.30 PM, the general practice is that the Sub-Registrar would take back the Will and retain it in his office for the purpose of entry in the book relating to the Registration of the Will. Thereafter, the original will be returned to the Executor or to the person indicated. That there is no evidence to indicate that after the registration of the said document, as to whom the Sub-Registrar returned the same. The same would not indicate as to who was in possession of the Will. Since there is absence of the fact as to returning of the original Will by the Registrar, it cannot be said that the Will has been lost after the death of the deceased. The same would not indicate as to who was in possession of the Will. Since there is absence of the fact as to returning of the original Will by the Registrar, it cannot be said that the Will has been lost after the death of the deceased. PWs 1 and 2 do not appear to have deposed in their evidence, that after the execution of the Will, they have seen the original Will of their father either in possession of their mother or in the possession of any other person. For these reasons, the trial Court was of the view that in the absence of any material to show that the Will was actually lost, the secondary evidence cannot be accepted. 17. The burden was on the plaintiffs, to prove that in terms of Section 65(c) the Will was either lost or destroyed. Evidence has been led-in by PWs 1 to 3, that the Sub-Registrar having been summoned to the hospital, the Sub-Registrar having noted the contents, has registered the said document. Thereafter, what happens to the document has not been stated by the either of the witnesses. Therefore, it does not mean that the said registration has not taken place or such a document does not exist. The same runs contrary to the fact that the document is registered and the document is procured from a lawful source, namely the Office of the Sub-Registrar. The reasoning of the Trial Court therefore to hold that since it is not clear whether the document was given back to either one of the parties, it is a suspicious circumstance is erroneous. The reasoning, that there is no evidence to show that the Sub-Registrar returned the document to either one of the parties being absent, cannot lead to a conclusion that there is absence of the existence of the Will itself. 18. The learned counsel for the defendants, relies on para-27 of the evidence of PW-1 to contend that the plaintiffs took the Will into possession, from the Sub-Registrar. He therefore relies on that portion of the evidence and contends that the plaintiffs having taken the Will, the plea set-up that they were not aware that the Will was lost or destroyed, therefore, cannot be accepted. 19. I have considered the evidence in detail especially with reference to para-27. He therefore relies on that portion of the evidence and contends that the plaintiffs having taken the Will, the plea set-up that they were not aware that the Will was lost or destroyed, therefore, cannot be accepted. 19. I have considered the evidence in detail especially with reference to para-27. A reading of the entire para would narrate the manner in which the Will was handed over to the Sub-Registrar. That the Testator himself handed over the Will to the Sub-Registrar in the presence of Lingappa PW-3, as well as Pascal Fernandes and Baptish Ferrao. 20. The specific case of the plaintiffs is that the Will was handed to the possession of the father and after his death to the mother. They are not aware as to what happened thereafter. Therefore, the certified copy of the same was obtained from the Sub-Registrar. The evidence of PW-1 would reiterate the plaint averments. The plaintiff has narrated that the copy of the Will was taken from the office of the Sub-Registrar. Therefore, the plea of the defendants that the statement made by PW-1 has to be considered, that he was the one who took possession of the Will from the hands of the Sub-Registrar, is contrary to evidence and therefore cannot be accepted. In fact the Will was taken by the plaintiff by obtaining a registered copy from the Sub-Registrar after the death of his parents. 21. The further suspicion as has been contended by the respondents is that the father was not well and was in the hospital and therefore was not in a state of mind to make the Will. It is their further case that the Testator was hospitalized and died within eight days of executing the Will. That he was in a very serious condition. That he was not in a position to understand worldly affairs. He was not recognizing any persons, he was not able to talk to others etc. When he was in such a precarious condition, it is highly improbable that he could execute any document, much less, a Will. 22. The pleadings and averments are not corroborated by any evidence to support such a claim. There are no hospital records produced by the defendants in order to show that the Testator was mentally or physically unfit to prepare the Will. 22. The pleadings and averments are not corroborated by any evidence to support such a claim. There are no hospital records produced by the defendants in order to show that the Testator was mentally or physically unfit to prepare the Will. It is further contended that it was for the plaintiffs to prove that the Testator was in a sound state of mind. The plaintiffs while admitting the poor state of physical health of the Testator, reiterated that he was mentally in a fit state of mind to prepare the Will. That even if he was hospitalized, nothing prevented him from preparing the Will. Just because he was hospitalized, that does not mean that he was in a mentally unfit condition. The Will was given to the sub-registrar by the testator himself. An overall reading of the evidence of PW-1 as well as DW-1 would reveal that the Sub-Registrar was summoned to the hospital and in the presence of all the witnesses, the Sub-Registrar was asked to register the document. Therefore, the plea of the plaintiffs stood established by the evidence led-in. Therefore, the contention of the defendants on this front cannot be accepted. 23(a) The defendants placed reliance on the judgment of the Hon'ble Supreme Court in the case H. Venkatachala Iyengar v. B.N. Thimmajamma and Others, reported in AIR 1959 SC 443 (1), with reference to para Nos. 18, 19 and 20, to contend as to what is the true legal position in the matter of proof of Wills. The Hon'ble Supreme Court therein narrated the manner in which the Will requires to be proved. Questions such as, whether the Testator has signed the Will, did he understand the nature and effect of the dispositions in the Will, did he put his signature to the Will knowing what it contained are all matters to be considered by the Court. The decision on these questions would determine the nature of the finding, on the question of proof of Will. Therefore, any suspicion that is legally raised would have to be dispelled by the person propounding the Will. Hence, he pleaded that the Will being riddled with suspicions, the plaintiffs have failed to discharge the burden. The decision on these questions would determine the nature of the finding, on the question of proof of Will. Therefore, any suspicion that is legally raised would have to be dispelled by the person propounding the Will. Hence, he pleaded that the Will being riddled with suspicions, the plaintiffs have failed to discharge the burden. (b) Reliance is also placed on the judgment of the Hon'ble Supreme Court in the case of Ramchandra Rambux v. Champabai and Others, reported in 1964 SCR 814 , with reference to page-821 wherein, the Hon'ble Supreme Court relying on the earlier judgments of the Court held that, they were also concerned in the manner in which the Will has to be proved. That one of the considerations is that if the propounder himself takes part in the execution of the Will, it is a suspicious circumstance to be taken into account while considering the genuineness of the Will. That the Court would expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the Testator. (c) Reliance is also placed on the judgment of the Division Bench of this Court reported in the case of Sanjiva @ Sanjiva Bhandary v. Vasantha reported in ILR 1990 Kar 1401, with reference to para-22, where once again the principles governing the proof of Will was enunciated. (d) Reliance is placed on the judgment of Madras High Court in the case of M. Rajeswari And Others v. M. Ganesan and Others, reported in AIR 2001 Madras 379, to contend that, when the Propounder of the Will has failed to establish that the Testator possessed a sound and disposing state of mind at the time of execution of Will, the Will becomes doubtful. Hence, he pleads that by relying on these judgments, the appeal be dismissed. 24. On the other hand, the learned counsel for the plaintiffs' disputes the same. He contends that none of the judgments stands applicable to the case on hand. 25. What emerges from these judgments are the principles with regard to the proof of Wills. That the mode of proving the Will would not ordinarily differ from any other document, except requiring attestation prescribed under Section-63 of the Indian Succession Act. The suspicion that may be raised would be the contents of the Will, the Testator's mind, the disposition, the unfair conduct, etc. That the mode of proving the Will would not ordinarily differ from any other document, except requiring attestation prescribed under Section-63 of the Indian Succession Act. The suspicion that may be raised would be the contents of the Will, the Testator's mind, the disposition, the unfair conduct, etc. Therefore, these are the suspicions that the propounder has to dispel, if not, the Will would not be accepted and if the suspicion is dispelled, the same would stand accepted by the Court. 26.(a) The suspicion sought to be made out herein is firstly, that the plaintiff was a party to the preparation of the Will. That he being a recipient of the benefits of the Will, the Will is suspicious on that ground. To this, the evidence of DW-1 is relied upon, to contend that the plaintiffs were present when the Will was registered. (b) However, the evidence does not narrate as to when, how and in what manner the Will was actually prepared. The evidence is only to the effect that the Sub-Registrar was summoned to the Hospital and in the presence of the all other witnesses, the Will was handed over by the Testator to the Sub-Registrar. Therefore, the plea that the plaintiffs had a role to play in the preparation of the Will is not forthcoming. There is no evidence to show, when the Will was drafted or prepared, or that the plaintiffs were aware of the same and had even participated in its preparation. There is an absence of any material to substantiate such a contention. There is absolutely no evidence on this aspect. The contention of the defendants is that it has to be presumed that the plaintiffs had a role to play in the preparation of the Will. It is needless to state that such a presumption cannot be drawn in favour of the defendants and against the plaintiffs. The plea of the parties would have to be decided based on their evidence and not on their assumption. In the absence of any evidence whatsoever, it is improper for this court to draw a presumption in favour of the defendants. Therefore, the contention that the plaintiffs participated in preparation of the Will is not supported by any evidence. The plea of the parties would have to be decided based on their evidence and not on their assumption. In the absence of any evidence whatsoever, it is improper for this court to draw a presumption in favour of the defendants. Therefore, the contention that the plaintiffs participated in preparation of the Will is not supported by any evidence. 27.(a) Further, reliance is placed on the statement made by the PW-1 at para-27 of the evidence, that it was he who received the Will after the Will was registered by the Sub-Registrar. Therefore, the plea of the plaintiffs that the Will was not handed over to the father, runs contrary to the very evidence. (b) The evidence has already been considered at length earlier. A view has already been expressed that the Will was not handed back to the plaintiffs but to the Testator himself. 28.(a) The further suspicion is with regard to the state of health of the Testator. In the written statement, a plea has been taken that the Testator was hospitalized when the Will was prepared. That he was not in a position to understand worldly affairs, to recognize any persons, to talk to others etc. The evidence of DW-1 is also to the said effect, wherein he narrates that his father was hospitalized due to paralysis. The same is not seriously disputed by the plaintiffs. However, what is contended is that the state of mind is different from the state of body. That even if he was physically incapable and was hospitalized and was being looked after, that did not deter him from taking any wise decision at all. His mental faculties were alert to prepare the will. (b) It is herein that there is lack of evidence by the defendants to suspect the Will. Except stating in the written statement and narration in the evidence, there is no material produced by them with regard to the mental state of health of the Testator. Until and unless the defendants were able to show by some material, that the Testator was not in a mental state to make such a Will, such a plea of suspicion on this ground therefore cannot be accepted. Merely because, the Testator was aged and was in hospital is not a ground by itself, to hold that his mental faculties were disturbed, disentitling him to make a Will. Merely because, the Testator was aged and was in hospital is not a ground by itself, to hold that his mental faculties were disturbed, disentitling him to make a Will. The judgments referred to above would clearly indicate the physical state of the Testator that requires to be assessed by the Courts. There are no judgments which define that if the Testator is in the hospital, he is not capable of making a Will. The capacity to make a Will, which is a mental exercise is quite different from the physical state of health. There is absolute absence of evidence with regard to the mental state of health of the Testator. Therefore, I am of the view that this suspicion would not amount to a legitimate suspicion as raised by the defendants. 29.(a) The further suspicion sought to be made out is that in terms of the Will, the properties have been bequeathed to the four sons and nothing has been bequeathed to the daughters. Therefore this too, constitutes a ground for suspicion. With regard to the same, the plaintiff has narrated that subsequent to the Will, a settlement was arrived at between the sons. In terms of the settlement, the properties were divided as indicated in the Will. Further a sum of Rs. 5,000/- was given to each one of the sisters. The same is evidenced in terms of Exhibits-P4 to P6 and P8, the receipts for having received Rs. 5,000/- by each one of the defendants' sisters. The receipts in terms of Exhibits-P4 to P6 and P8 has been denied by the defendants on the ground that they have been obtained on blank paper. The defendants contend that so far as the agreement is concerned, they were not party to it and therefore there is nothing much to say about it. The agreement was entered into only between the brothers, leaving behind the sisters. Therefore, it cannot be said that the same would amount to a just distribution of the properties by the Testator. (b) On considering the contentions, I am of the considered view that in terms of the settlement arrived at, a sum of Rs. 5,000/- being given to the daughters in lieu of their share, the same would not constitute a suspicion. (b) On considering the contentions, I am of the considered view that in terms of the settlement arrived at, a sum of Rs. 5,000/- being given to the daughters in lieu of their share, the same would not constitute a suspicion. The contents of the Will would narrate that the share has been given to the daughters in lieu of money being expended on account of their respective marriage. It was also stated in the Will that a sum of Rs. 5,000/-, should also be paid to each one of the daughters in lieu of their share. Therefore, in lieu of their share, the same was accounted as money expended on their marriages as well as Rs. 5,000/-. Therefore, to state that the properties have not been fairly divided, by excluding the sisters, is incorrect. In fact the judgment relied upon by the defendants' counsel in the case of Ramchandra Rambux v. Champabai and Others, reported in 1964 SCR 814 , runs contrary to the very contention being advanced by them. At page-822 of the said judgment, the Hon'ble Supreme Court was categorical in holding that, if the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part, near relations. Therefore, even if the contention was to be accepted, only because the sisters have been excluded from receiving any property from the Testator, that itself does not constitute a ground for suspicion. Infact the reasoning assigned by the Trial Court in para-18 of the judgment to hold that since the Will is silent about the provision of maintenance to the Testator's wife itself, is a suspicion circumstances, runs contrary to the judgment of the Hon'ble Supreme Court as narrated herein above. The distribution of the property cannot be a sole criteria to suspect a Will. The desire of the Testator cannot be interfered with, not even by a Court. The only area where the Court can interfere is on the ground of suspicion namely, that the Will has been executed in suspicious circumstances. If the property is not Willed to all the children, but only to some of them, that cannot by itself be a suspicious circumstances. The Testator may have decided that only some of the children may have to get the property. If the property is not Willed to all the children, but only to some of them, that cannot by itself be a suspicious circumstances. The Testator may have decided that only some of the children may have to get the property. Therefore, for the court to hold that the desire of the Testator is suspicious, would amount to interfering in the desire of the Testator. I have no hesitation to hold that not even the Courts, can substitute the desire of the Testator, provided all other issues are beyond suspicion. 30. Even on merits, the contents of the Will would indicate that the wife was entitled to use the property until her death. Therefore hereto the trial court appears to have committed an error. Therefore, the court has no hesitation to hold that the findings recorded by the trial court is not a true reflection of the evidence. The appreciation of the pleadings, evidence and the findings recorded by the trial court is perverse. The findings recorded do not correlate the evidence. 31. It is ultimately the mind of the Testator, as to whether he has parted with the property according to his wishes or not. Whether the wishes are justifiable or not is not for the Court to decide. The Testator may Will the property either to one or to all, or to any of the persons whom he desires. Only because some do not receive property, it does not mean that the Will is doubtful. If the Testator has parted with the property on his wish and such a Will is exercised out of a free mind, no Court can interfere with the wish and will of the Testator. Under these circumstances, this contention too cannot be accepted. 32. Under these circumstances and for the aforesaid reasons, this court is of the considered view that the findings recorded by the trial court are perverse. The trial court failed to consider the evidence in the right perspective. It has committed an error in misreading the evidence led-in by the plaintiffs. It has committed an error in considering the evidence of the defendants while holding that the suspicion has not been dispelled. The plaintiff has through the evidence and material on record, proved the Will. 33. The trial court failed to consider the evidence in the right perspective. It has committed an error in misreading the evidence led-in by the plaintiffs. It has committed an error in considering the evidence of the defendants while holding that the suspicion has not been dispelled. The plaintiff has through the evidence and material on record, proved the Will. 33. Therefore, the first point is answered by holding that the judgment and decree of the trial court is perverse in holding that the plaintiffs have failed to prove the Will. That the trial court has misread the material and evidence on record while passing the erroneous judgment. Consequently, the second point for consideration is answered by holding that in view of the judgment and decree of the trial court being perverse interference is called for. 34. Accordingly, the appeal is allowed. The judgment and decree in O.S. No. 4/1996, dated 31.07.2002, passed by the District Judge, Dakshina Kannada at Mangaluru is set-aside. The plaintiffs are entitled for grant of letters of administration in respect of the estate of the deceased Joseph Monteiro, based on the Will dated 18.5.1984. No costs.