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2018 DIGILAW 2127 (MAD)

K. Rangarajan v. Kamala Sampath

2018-07-17

N.SATHISH KUMAR

body2018
JUDGMENT : This suit has been originally filed for grant of probate in respect of the Will left by one K.Andal, mother of the plaintiff and the defendant and subsequently, the Original Petition has been converted as suit in view of the caveat filed by the defendant herein. 2. Brief facts leading to the filing of the suit is as follows : The plaintiff and the defendant are brother and sister. Their mother Andal died on 13.08.2000 testate bequeathing the vacant site held by her in the name of the plaintiff under the Will dated 08.08.1998. The property was bequeathed to the plaintiff for the specific reason that the plaintiff has paid the entire sale consideration while purchasing the property. It is also the case of the plaintiff that he could not file a petition immediately for issuance of letters of Administration, since the property is a vacant land and only when he went for building plan approval, the Corporation insisted him to produce probate. Therefore, there is a delay of 11 years in applying the probate. 3. Brief contentions of the Written Statement filed by the defendant is as follows : The defendant denied the existence of the Will, which has not been informed to her Will by the plaintiff. Whereas the defendant requested for amicable settlement and sent a letter dated 09.07.2012 and only in the reply dated 11.07.2012, the defendant was informed about the existence of the Will. Though the plaintiff and the defendant are residing in the same locality, the plaintiff has not chosen to inform her about Will left by their mother. It is the further contention of the defendant that the deceased Andal was equally affectionate to both her children, namely the plaintiff and the defendant. Only in order to enjoy the property absolutely by the plaintiff, the Will has been projected now. The defendant seriously doubt the validity of the Will. It is also denied by the defendant that the property was purchased out of earning of the plaintiff. Andal sold her ancestral property at Kumbakonnam and purchased the property. The reasons for delay has also not been properly explained and prayed for dismissal of the suit. 4. Based on the above pleadings, the following issues have been framed : (i). Is not the Will dated 08.08.1998 executed by late K.Andal valid and executed by her in disposing state of mind? The reasons for delay has also not been properly explained and prayed for dismissal of the suit. 4. Based on the above pleadings, the following issues have been framed : (i). Is not the Will dated 08.08.1998 executed by late K.Andal valid and executed by her in disposing state of mind? (ii) Is not the plaintiff entitled for probate as prayed for? (iii) For what reliefs the parties are entitled to? 5. On the side of the plaintiff, P.W.1 and P.W.2 have been examined and marked Ex.P.1 to Ex.P.12. On the side of the defendant, D.W.1 and D.W.2 have been examined and Ex.D.1 to D6 have been marked. Exhibits produced on the side of the plaintiff: S.No Exhibits Date Description of documents 1. P-1 08.08.1998 Original Will executed by K.Andal 2. P-2 -- Original death certificate of K.Andal 3. P-3 22.08.1981 Copy of the sale deed purchased by K.Andal 4. P-4 24.04.2012 Affidavit of Assets of the deceased K.Andal 5. P-5 02.12.2011 Copy of the legalheirship certificate of K.Andal 6. P-6 03.05.1975 VGP Land purchase pass book 7. P-7 03.05.1975 Acknowledgement for opening account 8. P-8 -- Instalments payment receipts 9. P-9 17.03.1977 VGP Housing with two enclosures 10 P-10 -- Cheque book counter foil series (2 Nos.) 11. P-11 -- Canara Bank Pass Books (2 Nos.) 12. P-12 02.02.1981 Sale Deed Doc.No. 3264/1981 P.W.1. - Mr.K.Rangarajan P.W.2 - S.Murugan Exhibits produced on the side of the Defendant : S.No Exhibits Date Description of documents 1. D-1 09.08.1991 Copy of the Sale deed in favour of the deceased K.Andal 2. D-2 17.07.2012 Original Legal Heirship certificate of the deceased K.Andal 3. D-3 06.06.2012 Copy of the statement given by VAO 4. D-4 09.07.2012 Copy of the letter sent by the defendant to the plaintiff 5. D-5 10.07.2012 Postal acknowledgement signed by the plaintiff 6. D-6 11.07.2012 Reply letter sent by the plaintiff to the defendant Witnesses examined on the side of the first defendant D.W.1 Mrs.Kamala Sampath D.W.2 - Mrs.Sujatha Suresh 6. The learned counsel appearing for the plaintiff would submit that the Will was of the year 1998 and it is an unregistered Will. The deceased was all along living with the son and she has left the Will. The reason for disinheriting the defendant is that the subject matter of the Will was purchased out of the funds of the plaintiff. The deceased was all along living with the son and she has left the Will. The reason for disinheriting the defendant is that the subject matter of the Will was purchased out of the funds of the plaintiff. Ex.P.6 to Ex.P.12 prove the fact that the property was purchased out of the funds of the plaintiff. Therefore, the testatrix has rightly exercised the discretion to give the property to the son. Therefore, disinheriting the daughter is not a ground to suspect the Will and the Will has been proved in the manner known to law. P.W.2, also in his evidence, has clearly spoken about the execution as well as attestation. Further no assertion has been made in the pleadings. Only in the proof affidavit, the defendant introduced new facts. The testatrix was in sound state of mind till her death. It is the further contention of the plaintiff that mere coming to the Court with delay itself cannot be a ground to suspect the genuineness of the Will. The delay has been properly explained and he is entitled for grant of probate. 7. On the other hand, it is the contention of the learned Senior Counsel for the defendant that the delay in coming to the Court is not properly explained and Will is in English and there is no evidence to show that the same has been explained to the testatrix. Further, the Will has been executed in the house of the plaintiff. It is also one of the suspicious circumstance. There is no reason given in the Will for disinheriting the defendant. P.W.2 worked under the plaintiff. Therefore, his evidence cannot be given much importance. If really, the plaintiff had contributed the amount for purchase of the property, there is no necessity for registering the property in the name of the mother. The Will itself shows that it has been prepared after copying the model form and the usual clause also not found in the Will. D.W.1 in her proof affidavit had stated that the plaintiff had offered Rs.10,00,000/- for amicable settlement and the same has not been denied by the plaintiff. It is the further contention of the learned counsel that the signature of the testatrix has not been proved in the manner known to law and the signature has to be proved as per sections 67 and 45 of the Indian Evidence Act. It is the further contention of the learned counsel that the signature of the testatrix has not been proved in the manner known to law and the signature has to be proved as per sections 67 and 45 of the Indian Evidence Act. Hence, submitted that these are all suspicious circumstances and the Will cannot be given any importance. 8. In the light of the above submissions, now I have to proceed to answer the issues one by one. 9. Issues 1 to 3 : The relationship between the parties is not in dispute. The plaintiff is the brother of the defendant. It is also not in dispute that their mother Andal died in the year 2000. The plaintiff has now propounded the will of the mother. It is well settled that onus lies on the propounder to prove the Will and also dispel the suspicious circumstances attached to the Will. The plaintiff in his pleadings as well as in his evidence has stated that the property, which is the subject matter of the Will, was originally purchased under a scheme from VGP and he was regularly paying the instalments. Only the registration was made in the name of his mother. As the entire sale consideration has been made by the son to purchase the property, the mother has taken conscious decision to bequeath the property in his favour. P.W.1 reiterated the same in his evidence also. P.W.2 is one of the attesting witness in the Will. 10. The Will has been marked as Ex.P.1, wherein the mother of the plaintiff had signed in the Will. One of the witness who signed in the Will has been examined as P.W.2. P.W.2 in his evidence has stated about the testatrix executed the Will in his presence and other attesting witness signed the document, while the testatrix signed the document she was in sound state of mind. In the cross examination of P.W.2, the entire chief examination with regard to the signing of the Will by the testatrix in their presence and attestation by the witness has not been denied. P.W.2 s cross examination, when carefully read, it also shows that the contents of the Will was read over to the testatrix at the time of executing the Will. P.W.2 s cross examination, when carefully read, it also shows that the contents of the Will was read over to the testatrix at the time of executing the Will. Further, the evidence of P.W.2 with regard to the execution and attestation of the Will is not denied in the cross examination and no other circumstances brought out in his cross examination to doubt the veracity of the Will. Hence, this Court is of the view that the plaintiff has established the Will. Merely because P.W.2 was working with the plaintiff in the same company five years back, that itself cannot be a ground to disbelieve the entire evidence of P.W.2. 11. It is the case of the defendant that their mother was not in sound state of mind at the time of execution of the Will. Her evidence in the cross examination itself clearly indicate that the testatrix and the plaintiff were living together till the death of their mother. Similarly the mother was hale and healthy till her death. 12. Similarly, the evidence of D.W.2, examined on the side of the defendant also shows that her grandmother namely the testatrix was in good state of health till her death. Her evidence also shows that Will was already informed by the plaintiff. When the signature of the testatrix has been proved in the manner known to law by examination of one of the attesting witnesses, the burden shifts on to the other side to disprove the execution of the Will. When the entire pleadings of the defendant in the written statement carefully seen, she has never asserted that the signature found in the Will is not that of her mother. Even in the cross examination, she did not deny the signature of her mother. On the other hand she has simply shown ignorance of the signature of her mother. Therefore, such evidence is of no use to doubt the signature of the mother which was duly proved by examining one of the attesting witnesses. Therefore, the contention of the learned Senior Counsel that the signature of the testatrix has not been proved in the manner known to law cannot be countenanced. The purpose of examining the attesting witness itself is to identify the person who put the signature in their presence. Therefore, the contention of the learned Senior Counsel that the signature of the testatrix has not been proved in the manner known to law cannot be countenanced. The purpose of examining the attesting witness itself is to identify the person who put the signature in their presence. When the requirement of law is complied by examining the attesting witness, the defendant merely on the bald allegation cannot contend that the signature is not established according to law. From the evidence of P.W.1 and P.W.2, on going through Ex.P.1 Will, the plaintiff clearly established the execution and attestation of the Will as required under law. 13. Now in the above background, it has to be seen whether there are suspicious circumstances shrouded in the Will. The main contention of the learned Senior Counsel for the defendant is that the Will has been executed in the house of the plaintiff and there is no reason for disinheriting the defendant, whatsoever, in the Will. It is to be noted that the plaintiff s mother was hale and healthy till her death. Merely because the Will was executed in the house where the mother was living, that itself cannot be a ground to doubt the genuineness of the Will. It is the normal human conduct to write a Will in the place where he/she actually resides. Therefore, I am not persuaded myself to accept the contention of the learned Senior Counsel for the defendant. 14. With regard to the other contentions that there was no reason to disinherit the defendant in the Will, there is a categorical evidence and pleadings of the plaintiff that though the property was purchased in the name of the mother, all the payments were made by the plaintiff himself. To substantiate the same, Ex.P.6 to Ex.P.12 have been marked. On a perusal of the above documents, the property which was the subject matter of the Will, originally allotted under the VGP Housing Private Limited company scheme. Ex.P.6 Pass book issued in the name of the plaintiff shows that the subject property, namely 1 ground and 1308 sq.ft. was agreed to be sold for Rs.5000/- in the year 1975. Ex.P.6 also indicate that the plaintiff had paid the monthly instalments. Similarly, Ex.P.7 letter addressed to the plaintiff from the VGP Housing Private Limited dated 03.05.1975 proves the fact that they received the payment from the plaintiff alone. was agreed to be sold for Rs.5000/- in the year 1975. Ex.P.6 also indicate that the plaintiff had paid the monthly instalments. Similarly, Ex.P.7 letter addressed to the plaintiff from the VGP Housing Private Limited dated 03.05.1975 proves the fact that they received the payment from the plaintiff alone. Ex.P.8 series receipts from 03.05.1975 till 06.07.1981, the plaintiff had continued to pay the monthly instalments and Ex.P.9 also proves the fact that after the twelfth instalment, the vendor has requested the plaintiff to confirm the deed signed by his mother. The letter Ex.P.9 clearly indicate that till the registration, entire payment was made only by the plaintiff. Thereafter only the property has been registered in the mother s name. Ex.P.10 also filed to show that the payment was made through cheque regularly. Ex.P.11 savings bank accounts books of the plaintiff show that the plaintiff had paid the money and thereafter only, in the year 1999, the property has been registered in the name of the mother. The first page of Ex.P.12 clearly indicate that the substantial payment agreed for the entire plot has been plaid by the plaintiff. Thereafter, the registration alone is made in the name of the mother. From the above documents, the plaintiff has established the fact that he has contributed money to purchase the property in the name of the mother. 15. It is the contention of the learned counsel for the defendant that such being the position, the transaction is hit by Binami Prohibition Act. It is to be noted that such contention also cannot be helpful to the case of the defendant. The plaintiff has not claimed the property as binami transaction. He only proved the fact that reason for bequeathing the property to himself by his mother was that the consideration has been paid by him towards the purchase. On a perusal of Ex.P.1 Will, the testatrix has categorically stated the reason for bequeathing the property to her son, as he has paid the consideration. When the reasons for bequeathing the entire property to one of the legal heir is given by the testatrix herself, this Court is of the view that there is need for separate explanation for disinheriting other legal heir, who is in her matrimonial home after the marriage. Therefore, in such a situation, mere disinheriting the defendant cannot be considered as a suspicious circumstance. 16. Therefore, in such a situation, mere disinheriting the defendant cannot be considered as a suspicious circumstance. 16. The other contention that the Will is not in the regular form and usual condition is not found in the Will is immaterial. What is required under law is proof with regard to the execution and attestation. When the prime condition has been complied with and when there is no suspicious circumstance attached with the Will, I am of the view that merely because there is no clause as to explaining the contents of the Will found in the Will cannot be a ground to disbelieve the Will. It has to be noted that it is the main contention of the defendant that the existence of the Will has not been informed and for first time she came to know about the Will only on 11.07.2012, after notice dated Ex.D.4. It is to be noted that though the defendant claims to be aware of the Will only after Ex.D6 dated 11.07.2012, but the above statement is falsified by her own admission in the cross examination. In the cross examination, she has admitted that her brother requested her to probate the Will. However, she had refused to do so. Thereafter, she had asked her brother about the property. Ex.D.4 letter has been given by her after discussing with him, Ex.D.4 letter had been prepared by her counsel. These facts clearly indicate that before Ex.D.4, she was very much aware of the existence of the Will. Therefore, her contention that for the first time she came to know about the Will only in the year 2012 is also incorrect. 17. Another contention of the learned Senior Counsel for defendant that her mother had contributed amount out of sale proceeds from ancestral property and purchased the subject property. To substantiate the same, there is no iota of evidence available on record. Whereas, in her cross examination, she took contrary stand to the effect that their father s property was sold during his life time. It is also admitted by her that her father died in the year 1970 itself. Therefore when the father s property was sold before 1970, the question of investing the above money by the mother for purchasing the property in the year 1981 is also doubtful. It is also admitted by her that her father died in the year 1970 itself. Therefore when the father s property was sold before 1970, the question of investing the above money by the mother for purchasing the property in the year 1981 is also doubtful. At any event, even to say that her mother was having ancestral property, there is no evidence available on record. 18. The other contention of the learned Senior Counsel for the defendant that though the testatrix died in the year 2000, this petition has been filed after 12 years and this is also barred under law. In this regard, he has also relied upon the judgments of the Honourable Supreme Court reported in 1996 (4) Supreme Court Cases 596 S.Gopal Reddy Vs. State of A.P. 2009 (4) Madras Law Journal 309 Krishna Kumar Sharma Vs. Rajesh Kumar Sharma. 19. The judgment reported in S.Gopal Reddy's case (supra) deals with the exparte evidence and also the adverse presumption when to be drawn and mode of proving particular document by a particular person. I am of the view that there is no dispute with regard to the judgment of the Apex Court with regard to the proof of the document. But every fact has to be proved in the manner known to law. Each case has to be decided on facts and circumstances of that case. As already seen not only Ex.P.1 has been proved by proving its execution and attestation but also the defendant has not even denied the signature of her mother found in the Will. Hence, the above judgment is no way helpful to the defendant. 20. The judgment reported in Krishna Kumar Sharma's case (supra) deals with limited scope of filing an application for probate in which the Honourable Supreme Court has held that the Article 137 is applicable to the petition for grant of Letters of Administration of the Will. In the above judgment the Apex Court has held that the Court has to consider that the delay must be explained but cannot be equated with the absolute bar of limitation and also consider once execution and attestation are proved, suspicion of delay no longer operates. 21. It is further to be noted that the judgment reported in 2016 [1] CTC 257 [Vatsala Vs. 21. It is further to be noted that the judgment reported in 2016 [1] CTC 257 [Vatsala Vs. K.S.Mohan], the Division Bench of this Court after considering the decision of the Larger Bench comprising of five Judges of the Apex Court reported in 2005 [1] MLJ 105 [P.W.Santhappan (Dead) by Lrs. V.Andhra Bank Limited] has held as follows : “A Letters Patent is a special for the concerned High Court. Civil Procedure Code is a general law applicable to all Courts. It is well settled law, that in the event of a conflict between a special law and a general law, the special law must always prevail. We see no conflict between Letters Patent and Section 104 but if there was any conflict between a Letters Patent and the Civil Procedure Code then the provisions of Letters Patent would always prevail unless there was a specific exclusion. This is also clear from Section 4 of Civil Procedure Code which provides that nothing in the Code shall limit or affect any special law. As set out in Section 4 C.P.C. Only a specific provision to the contrary can exclude the special law. The specific provision would be a provision like Section 100A.” 22. In view of the above judgments and Order XXV of Original Side Rules, Article 137 of Limitation Act will not apply to the probate proceedings in the Chartered High Court and only delay has to be explained properly. In this case, the plaintiff himself in his pleadings has explained the delay in coming to the Court. Mere ignorance or failure to act promptly by the parties to approach the Court to get Letters of Administration or probate, mere delay itself is not a ground to disbelieve the Will. When the Will is proved in the manner known to law and no circumstances in the form of suspicion attached to the Will, mere delay in coming to the Court assumes insignificance. Hence, I am of the view that the plaintiff had explained the delay and proved the Will. Accordingly, the issues are answered. 23. In the result, the suit is decreed as prayed for and grant probate of the Will in respect of the plaintiff. No costs.