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Karnataka High Court · body

2015 DIGILAW 1102 (KAR)

Ida Mathias v. Allen J Mathias

2015-09-21

ANAND BYRAREDDY

body2015
JUDGMENT 1. These appeals are heard and disposed of by this common judgment, as the appeals are filed challenging a common judgment rendered in the civil suits bearing no.OS 26 of 1999 and OS 5 of 2000, by the Court of the District Judge, Dakshina Kannada, Mangalore. 2. The plaintiffs in the civil suit in OS 26 of 1999, both sons of one Albert Jerome Mathias, had approached the court seeking Letters of Administration, in respect of their father's estate, in a petition under Section 276 of the Indian Succession Act, 1925, numbered as P & SC 62 of 1997. A.J.Mathias was said to be a permanent resident of Kuthyar Village of Udupi Taluk. He had, however, died at his ordinary residence at Alvares Road, Kadri, Mangalore, as on 19.7.1976. Mathias was said to have left behind a last will and testament dated 23.3.1982. Defendant no. 1 was the mother of the plaintiffs. She had separated from Mathias and was said to be living in the United States of America (USA). Defendants 2 and 3 were the brother and sister of late Mathias. They are said to have entered caveat before the probate court. In that view of the matter, the petition filed by the plaintiffs was converted into a testamentary suit. In terms of the Last will of Mathias, the testator was said to have bequeathed his various assets and properties to the plaintiffs. Robert Mathias and Cyril Gonsalves were said to have been appointed as joint executors of the will. It was said that the relationship between the plaintiffs and Robert Mathias was strained and since he had failed to respond to their notice, to have the will of their father probated, the plaintiffs had been constrained to approach the court to prove the will of late Mathias and to seek Letters of Administration, in their capacity as legatees under the will. 3. Defendants 2 and 3 had entered appearance through counsel. Defendant no.2 in his written statement had denied that A.J.Mathias had left behind a will. It was stated that Defendant no.1 had withdrawn from the society of the late Mathias since the year 1982, on account of a strained relationship. She had migrated to the USA and had sought for and was granted a divorce by a Court in Illinois, USA, in the year 1986. It was stated that Defendant no.1 had withdrawn from the society of the late Mathias since the year 1982, on account of a strained relationship. She had migrated to the USA and had sought for and was granted a divorce by a Court in Illinois, USA, in the year 1986. It was stated that the plaintiffs had joined her in the USA and were living there. And that neither the plaintiffs nor defendant no.1 had any concern for late Mathias since the year 1982. It was claimed that as the younger brother of Late Mathias, there was an excellent rapport between them. And that Mathias had executed a last will and testament dated 3.2.1996, naming himself (defendant no.2) and his sister, defendant no.3 as the executors of the said will. And that they had filed a separate probate petition in that regard. And in view of the plaintiffs having opposed the same, the said petition was said to have been converted as a testamentary suit in OS 5 of 2000. Defendant no. 3 had adopted the written statement of defendant no.2. 4. On the basis of the above pleadings, the court below had framed the following issues : In O.S.No.26 of 1999 “1. Do the plaintiffs prove that late A.J.Mathias executed his Last Will and Testatment on 23.3.1982 while in sound disposing mind in the presence of attesting witnesses? 2. Does the defendant No.2 prove that deceased A.J.Mathias had executed a Will on 3.2.1996 appointing himself and 3defendant as executors thereunder? 3. Are the plaintiffs entitled for grant of Letters of Administration?” In O.S.No.5 of 2000 “1. Do plaintiffs prove that deceased Albert Jerome Mathias duly executed Will dated: 3.2.1996 in the presence of the attesting witnesses while in sound disposing mind and that it was his last Will? 2. Had Mrs. Genevive Carmelita Saldana divorced the deceased? 3. Are the plaintiffs entitled for grant of probate? 4. Is the deceased’s signature forged in the disputed Will as pleaded by the defendants? 5. Have the plaintiffs undervalued the suit?” Issue nos. 1 and 3 were answered in the affirmative and Issue no. 2 in the negative, in OS 26 of 1999 and the suit was decreed as prayed for. The issues in OS 5 of 2000 were answered in the negative and the suit was dismissed. 5. Have the plaintiffs undervalued the suit?” Issue nos. 1 and 3 were answered in the affirmative and Issue no. 2 in the negative, in OS 26 of 1999 and the suit was decreed as prayed for. The issues in OS 5 of 2000 were answered in the negative and the suit was dismissed. Hence these two appeals are filed by the legal representatives of Robert Mathias, who is said to have died during the pendency of the suit. 5. Shri Madhusudan Rao, learned counsel appearing for the appellants would contend that the court below has characterized Exhibit D-4, the will dated 3.2.1996 executed by A.J.Mathias, as a forged document without any basis, while declaring that it was the will dated 23.3.1982 of A.J.Mathias, which was sought to be probated in OS 26 of 1999, as a genuine will. It is pointed out that the first appellant, Ida Mathias was examined as DW-1 and that she had identified the signature of the testator and in the entire cross-examination, there was not even a suggestion that the signature was not that of the testator or that her husband had obtained the signature surreptitiously on a blank sheet of paper. It is urged that in order to establish that the testator was in a sound state of mind and that he had not lost his mental faculty and had not degenerated into a chronic alchoholic by the year 1996, several documents were produced to demonstrate that the testator was transacting his affairs normally during the relevant period. Exhibit D-6, dated 15.7.1992, a Deed of Dissolution, which was entered into by the testator and R.G.Mathias, his brother, and the husband of the first appellant. Exhibit D-7, a Power of Attorney, dated 14.9.1992, notarized by a senior member of the Bar, who had tendered evidence as DW-5, who has vouched for the sound state of mind of the testator. Exhibit D-8, dated 13.10.1995, a sale deed executed by the testator and Exhibit D-9 dated 4.7.1996 executed by the testator in favour of his Church. The above deeds are ample proof of the sound state of mind of the testator during the relevant point of time. Exhibit D-8, dated 13.10.1995, a sale deed executed by the testator and Exhibit D-9 dated 4.7.1996 executed by the testator in favour of his Church. The above deeds are ample proof of the sound state of mind of the testator during the relevant point of time. It is contended that on the other hand, the plaintiffs in OS 26 of 1999 had not produced any material to establish that the testator had given up his practice as a lawyer by the year 1984 and had lost most of his faculties and was a chronic alchoholic. Nor had they produced any proof to demonstrate that R.G.Mathias had exercised undue influence on the testator, in the execution of the will dated 3.2.1996, Exhibit D-4. On the other hand, it is stated in the plaint itself in OS 26 of 1999, that the testator was practicing till his death, with the assistance of his colleagues. It is urged that the trial court was not justified in taking exception to the fact that the will, at Exhibit D-4, was not signed on all the pages, as there is no mandate in law in that regard. It is contended that the testator having thought it fit to bequeath his estate to his brother and sister and overlooking his sons and wife, was not unnatural as the wife had deserted him early in life and his sons were also living abroad and it is the brother and sister who had any concern and gave him companionship in the evening of his life. It is further contended that the trial court had unfairly held that the circumstance in which the testator had travelled to Udupi to execute the will, Exhibit D-4, in the presence of the attesting witnesses, DW-2 and DW-4, who were readily available at that time and being acquaintances of R.G.Mathias, ought not to have been viewed with suspicion merely because they were a driver and a mechanic. The testator having paid an unscheduled visit to the house of his younger brother -he had arranged for those witnesses whose status in life is no criterion to judge the genuineness of the will. It is contended that on the other hand, it is not clear as to how the plaintiffs in OS 26 of 1999 had come into possession of Exhibit P-1, the will set up by them. It is contended that on the other hand, it is not clear as to how the plaintiffs in OS 26 of 1999 had come into possession of Exhibit P-1, the will set up by them. However, PW-1 had claimed that the testator had handed over the original will to her, who in turn had given it to the plaintiffs after the demise of the testator. It is pointed out that PW-1 was said to be a client of the testator and it is indeed unnatural for the testator to have handed over such a solemn document to a client, for safe keeping. It is further contended that the place of execution of the said Exhibit P-1 was also doubtful, as the testator was a senior member of the Bar and would not go to a junior's chamber, namely the office of one Cyril Gonsalves, to execute the same. 6. On the other hand, the learned Senior Advocate, Shri Padmanabha Mahle, appearing for the counsel for the respondents would seek to justify the judgment of the trial court. 7. On a consideration of the rival contentions and from the material on record, the points that arise for consideration are: (i) Whether the trial court was justified in arriving at a finding that the will propounded by the plaintiffs in the suit in OS 26 of 1999, said to have been executed by their father, A.J.Mathias, dated 23.3.1982, was proved and was a genuine will? (ii) Whether the trial court was justified in finding that the will propounded by the plaintiffs in the suit in OS 5 of 2000, said to have been executed by A.J.Mathias, dated 3.2.1996, was not proved to be genuine and was clouded in suspicion ? 8. In order to prove the will dated 23.3.1982, propounded in the suit in OS 26 of 1999, PW-1, one of the attestors to the will is examined as a witness. She was a client of the testator and a family friend and the original will was kept in her custody. She has amply supported the case of the plaintiffs as regards the time and place of execution of the will and of the counsel who had assisted in the preparation of the same. She was a client of the testator and a family friend and the original will was kept in her custody. She has amply supported the case of the plaintiffs as regards the time and place of execution of the will and of the counsel who had assisted in the preparation of the same. She has stated that the will was prepared in the office of an advocate, Cyril Gonsalves in his office chambers, and his brother Edmund Gonsalves a friend of the testator, was said to be the other attesting witness who was present. According to the witness, the will was delivered in a sealed cover, after its execution and attestation to Cyril Gonsalves. However, it transpires that Cyril Gonsalves had died, prematurely. The will is said to have been handed over to the testator by Edmund Gonsalves soon thereafter. A month after the death of Gonsalves, the testator had a fall and was badly injured and was said to be hospitalized. It was at that time, according to PW-1, that the testator had handed over the sealed cover containing the will to her, along with a ring and a watch, for safe keeping. It was after the death of the testator that she had handed over the said items to one of the sons of the testator. A draft of the said will prepared in the testator's own hand, preceding the preparation of a fair copy, is produced and marked as Exhibit P-3. A plain reading of the will would indicate that it is prepared in the proper language and form, expected of the testator, an experienced and wealthy lawyer, who was practicing since the year 1953. The text of the will is reproduced for ready reference, in order to compare the same with the other will produced and marked as Exhibit D-4: “LAST WILL AND TESTAMENT OF ALBERT J. MATHIAS I, Albert Mathias son of Santan E Mathias, Catholic Christian, Advocate, Mangalore and permanent resident of Kunja, Kuthyar Village, Udupi Taluk, do out of my own free will and in a sound state of mind make this my last will and testament. I am married to Dr. G. Saldanha and through her I have two sons namely Allen J. Mathias and Sherman E. Mathias, aged about 12 and 10 respectively. They are presently student in St.Aloysius College, Mangalore. I am married to Dr. G. Saldanha and through her I have two sons namely Allen J. Mathias and Sherman E. Mathias, aged about 12 and 10 respectively. They are presently student in St.Aloysius College, Mangalore. I own immovable properties in Kuthyar, Shirva and Pilar village in Udupi Taluk and two plots in Mangalore at Valencia and Pandeshwar. I also bequeath my house is Kunja and the adjoining compound with an extent of half an acre to my eldest son, Allan absolutely. He shall allow my younger son, Sherman to reside in the said house till he reaches the age of 25. I also bequeath my Pandeshwar plot to my elder son, Allan, absolutely, I bequeath my Valencia plot to my younger son, Sherman absolutely. The remaining portion of my immovable property and also my movable assets including my furniture and bank accounts, excluding my office account I bequeath, to my 2 sons, Allan and Sherman, to be divided by them equally. My brother Robert G. Mathias will guide them in such division. My wife Dr. G. Saldanha is a gazetted Medical Officer and she has her own earnings and hence shall have no right over any of my assets. I am of the opinion that my aforesaid two sons will not have a correct upbringing if they are under the custody of my wife. Hence, during their minority, my brother Robert shall take custody of them and their assets and take care of them. He shall meet the expenses of their education from the income of my share in the partnership firm known as Mathias Bakery, Bandra, Bombay. They will succeed to this share of mine and shall have a right to reside in one of the flats owned by me and my brother Robert jointly at Bandra. My office at Gokul Market and the furniture and law books including my office account shall be taken possession by Mr.Cyril Gonasalves, Advocate and he shall have a full right to run it or dispose it if necessary and distribute the proceeds between my aforesaid two sons. I hereby appoint my brother Robert and Mr. Cyril Gonsalves, Advocate as joint executors of this my will. If one of them predeceases the other, the other will be the sole executor. My aforesaid two sons will be the residuary legatees. I hereby appoint my brother Robert and Mr. Cyril Gonsalves, Advocate as joint executors of this my will. If one of them predeceases the other, the other will be the sole executor. My aforesaid two sons will be the residuary legatees. It is my earned desire that my elder son Allan should invite my brother and sisters and their families to my family house at Kunjar and look after them at least for a week every year. I hereby reserve my right to revoke this will as and when deem it fit. In witness where of, I have signed this will on this 23day of March 1982 at Mangalore. Witnesses: Sd/-(A.K.Mathias) 1. Sd/- (P. Saldanha) 2. Sd/- (E. Gonsalves)” On the other hand, the will Exhibit D-4, that is propounded in the civil suit in OS 5 of 2000 is said to have been executed at Udupi in the house of the testator's brother. The testator is said to have travelled in a taxi to Udupi on the day it was said to have been executed. The same is typewritten on half sheets of plain paper consisting of 3 sheets. Only the third sheet is shown to contain the signature of the testator. The said will is said to have been attested by two persons, who were strangers to the testator and were known only to the husband of DW-1. One of them was a driver by profession and the other a mechanic. According to the plaint in OS 5 of 2000, the testator was of a sound disposing state of mind and was in good health at the time of execution of the will. If that were so, it would be expected that a well known and experienced lawyer would have certainly taken care and bestowed attention in preparing a solemn document such as his last will and would not be expected to travel to Udupi from Mangalore, only to execute his will on scraps of paper and in the presence of unknown attesting witnesses. He would have been able to get all the help and assistance at Mangalore. This unusual conduct is not sought to be explained. The said will does not refer to any earlier will. He would have been able to get all the help and assistance at Mangalore. This unusual conduct is not sought to be explained. The said will does not refer to any earlier will. The only reason stated in the will for bequeathing all his properties to his brother and his sister, and dis-inheriting his sons, is that they had followed their mother to the USA and had not bothered to write to him or enquire after him. And further that it was his brother and sister who had shown affection and cared for him in times of need. DW-8, who was said to be a colleague of the testator and who had subsequently been appointed as a District Judge, had deposed to state that the testator always had affection for his sons and on the other hand, the testator had described his brother as a “crook”. And further that the testator had gradually withdrawn from active practice and that it was DW-8 who was, during his tenure in the testator's office, servicing his clients and attending to court work, along with other colleagues. The testator had confined himself to chamber practice. The witness had also deposed that he had purchased certain immovable property belonging to the testator, and in preparing the documentation in that regard, the same had to be read over to the testator as his faculties had started failing him. The witness has categorically asserted that neither the testator's brother, sister or sister-in-law were ever seen taking care of him. And that the testator was dependant on his servants for his well being. He has also vouched for the fact that the attesting witness to Exhibit P-1, was a client of the testator and that she was known to him. The execution of Exhibit D-4 is sought to be proved through the evidence of DW-1, DW-2 and DW-4. Their evidence, as noticed by the trial court, is not consistent. The trial court has discussed the said inconsistencies, at length, in paragraphs 26 to 30 of the impugned judgment. Significantly, the sister of the testator, who was a plaintiff and beneficiary, had not chosen to enter the witness box. The will dated 3.2.1996, on a plain reading does not contain the necessary legalese, which would be expected to mechanically flow from an experienced lawyer. Significantly, the sister of the testator, who was a plaintiff and beneficiary, had not chosen to enter the witness box. The will dated 3.2.1996, on a plain reading does not contain the necessary legalese, which would be expected to mechanically flow from an experienced lawyer. This is evident from the document, which is reproduced hereunder for ready reference : “LAST WILL AND TESTAMENT OF ALBERT JEROME MATHIAS I, Albert Jerome Mathias, Catholic Christian aged about 68 years, son of Late S.E.Mathias, residing at Alveres Road, Kadvi, Mangalore, do out of my own free will and in a sound state of mind make this my Last Will and Testament. I was married to Genevieve Casmelita Saldanha and have two sons by her, Allen Joseph Mathias, aged about 27 years and Sherman Emmanuel Mathias aged about 25 years. However, over the years, due to irreconcilable differences between us, my wife and I have been living separately since 1982. Thereafter, my wife went to U.S.A. and divorced me. Thereafter, my elder son, Allan Joseph Mathias was also taken by her to U.S.A. In January 1996 she also took my second son Sherman Emmanuel Mathias to U.S.A. Since the time all of them went to U.S.A. they have not written any letter to me or contacted me in any other manner. I have been looked after and taken care of by my sister, Aida Rauleen Sequeira and brother Robert Gregory Mathias. I own an immovable property situated at Jeepo, Mangalore. I, hereby, give the said property to my sister Aida Pauleen Sequeira, absolutely. I also have a residential house called “kunja” and opened and at Kuthyar village, Shirva. I also own another immovable property at Pillar Village and still another immovable property at Shirva village, all of Udupi Taluk, D.K. My brother Robert Gregory Mathias has been looking after me and managing all these properties. I, hereby, give all these properties to my brother Robert Gregory Mathias, absolutely. I have got my office premises at Gokul Market, Hampankatta, Mangalore wherein some of my juniors are sitting and working but they have no right to the office premises. I give the said premises to my brother Robert Gregory Mathias, absolutely. I cannot forget my sister Aida, who has been providing me will all my meals and medical treatment and my brother Robert who has been giving me whatever monetary help I require and moral courage. I give the said premises to my brother Robert Gregory Mathias, absolutely. I cannot forget my sister Aida, who has been providing me will all my meals and medical treatment and my brother Robert who has been giving me whatever monetary help I require and moral courage. I appoint my sister Aida Pauleen Sequeira and brother Robert Gregory Mathias jointly and severally executors of this my Last Will and Testament. I have signed this will at Udupi on this 3day of February 1996, in the presence of the following two witnesses:- Witnesses: 1. Sd/- M. Manjunath Udupi 2. Sd/- Baptist D’ Souza Udupi” One other circumstance that is significant to indicate that the above will was not really executed by A.J.Mathias, is that the above will contemplates, his law chambers at Gokul Road, Mangalore, which was a leased premises and not owned by him, is bequeathed to the brother. He could never have bequeathed the same. It was the library and furniture that could be bequeathed. A Lawyer with such experience would never have contemplated this. Obviously, this is the proverbial 'slip', that gives away the miscreant who may have prepared the document. Therefore, on a careful examination of the material on record and given the facts and circumstances, the above points for consideration are answered in the affirmative. There is no merit in these appeals. The same are dismissed.