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2018 DIGILAW 2222 (MAD)

S. Devaki v. A. Deenadayalan

2018-07-24

N.SATHISH KUMAR

body2018
JUDGMENT : The Original Petition has been originally filed for grant of Letters of Administration based on the Will dated 22.02.2001 executed by one Mr. M. Arumugam, thereafter, converted as a suit in view of the contest by the defendants. 2. The plaintiff is daughter of one Mr. M. Arumugam who died on 26.03.2001 at Chennai, leaving behind the Will dated 22.02.2001. All the five children of the deceased are the beneficiaries under the Will. Hence the plaintiff, being one of the beneficiaries, undertakes to administer the property and credits of the said deceased Mr. M. Arumugam by paying first his debts and then the legacies therein bequeathed so far as the assets will extend and to make a full inventory thereof and exhibit the same in this Court. 3. It is the contention of the contesting defendant that the alleged Will dated 22.2.2001 is a fabricated one by playing fraud. The suit property was acquired by the father of the defendants. He died leaving behind 4 sons namely Mr. A. Deenadayalan, Mr. Ramakrishanan, Mr. A. Gnanamani and Mr. A. Venugopal (defendants herein) and one daughter by name Tmt. S. Devaki (plaintiff herein). The father has left a registered Will dated 26.10.1994 allotting different portion to each of the legal heirs. As per the above Will, all the legal heirs were enjoying the properties absolutely after mutating them in their respective names in all the public records. The plaintiff who has been living with her husband at different places, at last came to live at No.4, Jayalakshmipuram 4thStreet, Nungambakkam, Chennai-34. After the death of her father, the property described in Schedule 'E' to the Will dated 26.10.1994 was allotted to her with the property of her husband having entrance from Jayalakshmipuram 4th Street, Chennai-34. The plaintiff has not been given any of usage over the pathway existing in Old Door No.4, New Door No.7, ChokkattanSalai, Chennai-34, which exclusively meant for the 4th defendant. In the alleged Will dated 22.2.2011 thumb impression has been affixed purporting to be that of Arumugha Naicker. There is no reason assigned in the petition why the thumb impression was affixed. It is the further contention of the defendants that from March 2000 the testator was mentally unsound due to old age and was suffering from senility and lost mobility totally. Hence, he could not have written the alleged Will dated 22.02.2001. There is no reason assigned in the petition why the thumb impression was affixed. It is the further contention of the defendants that from March 2000 the testator was mentally unsound due to old age and was suffering from senility and lost mobility totally. Hence, he could not have written the alleged Will dated 22.02.2001. The said Will got registered, by playing fraud in order to claim right over the above said exclusive pathway of the defendant. 4. Based on the above, the following issues are framed for consideration: 1. Whether the Last Will and Testament of the Testator dated 22.02.2001 is genuine and valid? 2. Whether the defendants herein are entitled to set up a defence by citing the alleged Will of the year 1994 of the testator, since the same may be revoked by virtue of the Later Will? 3. To what other reliefs, the parties are entitled to? 5. On the side of the plaintiff two witnesses were examined and Exs.P.1 to P.4 marked and on the side of the defendants, D.W.1 and D.W.2 were examined and Ex.D1 was marked. 6. It is the contention of the learned counsel for the plaintiff that though the testator has left the Will in the year 1994, before his death he subsequently executed another registered Will thereby the earlier Will has been revoked and P.W.2 one of the attesting witnesses has clearly spoken about the execution and registration of the Will. Though there are two wills executed by the testator, the last will alone prevail and the testator executed the last will in the sound state of mind and out of his own free will and volition and the same has been proved through the attesting witnesses. Hence, the execution of the Will is proved in the manner known to law and the plaintiff is entitled for Letters of Administration. 7. It is the contention of the learned counsel for the defendants that admittedly the testator has executed the will in the year 1994 itself bequeathing specific portion of the properties to each of his children. The plaintiff being the daughter was allotted to the property which is adjacent to her husband's property. The right of pathway from the front side of the said property is not given to the plaintiff. The plaintiff being the daughter was allotted to the property which is adjacent to her husband's property. The right of pathway from the front side of the said property is not given to the plaintiff. The subsequent will of the year 2001 has been created only for the purpose of getting right of pathway from the front side of the property. As the value of the property allotted to the plaintiff originally is lesser than the value of front side of the property. Only in order to get the right of way, the subsequent will has been created by the plaintiff and other defendants. The evidence of P.W.1 and P.W.2 itself clearly proves that the testator was not in sound state of mind and the Will has been created by the plaintiff and others to get the right of the way. The parties are enjoying the properties as per the allotment made in the year 1994 itself. The sketch of the year 1994 also proves the same fact. Immediately within one month of Ex.P.1 Will, the testator died. Ex.P.D1 also clearly shows that the testator was immobilised and his mental condition was not good to execute the Will. Hence, submitted that merely the will has been registered which cannot be given any credence. Hence, prayed for the dismissal of the suit. 8. In the light of the above submissions, now, we have to proceed the issues. Issue Nos.1 to 3 9. Admittedly the property which is the subject matter of the Will belonged to the father of the plaintiff Mr. M. Arumugam. He had 4 sons and one daughter. This fact is not under dispute. The plaintiff being the daughter, has come up with the propounded Will said to have been executed by the father on 22.02.2001. Though, in her evidence, the plaintiff shows ignorance of the earlier registered Will of the year 1994, but facts remains that the father has executed the Will in the year 1994 itself in respect of the suit property divided the suit properties into 5 parts and allotted to all the legal heirs. It is the contention of the defendants that in the earlier Will right of way was not given to the plaintiff's portion which was subsequently annexed with her husband's property and the value of the said portion is less than the value of front portion of the property. It is the contention of the defendants that in the earlier Will right of way was not given to the plaintiff's portion which was subsequently annexed with her husband's property and the value of the said portion is less than the value of front portion of the property. Only to get that right, the Will has been created. In respect of the allotment of the properties to all the legal heirs, there is no change between the earlier Will and subsequent Will, except the right of pathway to the plaintiff. The death of the testator on 26.03.2001 is not under dispute. The will said to have been executed by him on 22.02.2001 was just one month prior to his death. This fact is not in dispute. 10. Of course subsequent Will, prevail over former Will. Now it has to be seen that whether the subsequent Will propounded by the plaintiff is proved in the manner known to law. If it is surrounded by any suspicious circumstances, the initial burden lies on the propounder of the Will not only to prove the execution and attestation of the will but also dispel any of the suspicious circumstances attached to the Will. Though Ex.P.1 is the registered Will, mere registration of the Will itself will not be sufficient to prove the Will as required by law. P.W.2 said to have been an attesting witness, in her evidence has stated that the Will was executed in her presence and other attesting witness Mr. Ravikumar and the testator was hale and healthy at the time of execution of the Will. When the evidence of P.Ws.1 and 2, the propounder and the attesting witness when carefully scanned, this Court has serious doubt about the manner in which the Will was executed. Admittedly, the testator was aged about 90 years at the relevant point of time and he died after one month of the alleged execution of the Will. It is admitted by P.W.1 in her evidence that the testator used to sign as Arumugam. It is also admitted by the P.W.1 that the testator has affixed his left thumb impression in the Will dated 22.2.2001. In Ex.P.1 the signature of her father absent in the entire Will, only his thumb impression is available. 11. It is admitted by P.W.1 in her evidence that the testator used to sign as Arumugam. It is also admitted by the P.W.1 that the testator has affixed his left thumb impression in the Will dated 22.2.2001. In Ex.P.1 the signature of her father absent in the entire Will, only his thumb impression is available. 11. It is the evidence of P.W.2 attesting witness in the chief examination that the testator was suffering from nervous problem, he could not put the signature. Therefore, thumb impression was obtained. P.W.1 in her cross examination had admitted that Ex.P.1 Will was prepared by Mr. Gnanamani and Mr. Arunagiri. The further evidence also shows that the testator was taken from the house of P.W.1 under the pretext of taking him to hospital for providing treatment. Mr. Gnanamani, 3rd defendant, while taking the testator from the house of P.W.1.told that they wanted to provide treatment to the testator. This admission gives an inference that at the relevant point of time the testator was at the age of 90 years was not hale and healthy. It is also admitted by the plaintiff that the legal heirs of Mr. M. Arumugam are enjoying properties as per the allotment made in the Will of the year 1994 all these years. Further, P.W.1 has also admitted that the property allotted to her falls under the Jayalakshmipuram 4th street, which is very narrower than Appu Naicken Street. The value of property situated in Jayalakshmikpuram 4th Street is lessor value than the property situated in ChokkattanSalai. It is also admitted by P.W.1 that except giving the right of way, in subsequent Will there is no change in respect of extent bequeathed under Will of the year 1994. 12. From the above positive admission of the P.W.1, it is made clear that subsequent Will though registered in the year 2001, the same has been propounded to exercise the right of passage from the front portion of the property which is situated in the area which is of more value than the property allotted to the plaintiff in the earlier Will of the year 1994. The change in the subsequent Will confer right of way to the plaintiff and her other brother from the front side which was in fact not given in the earlier Will of 1994. The change in the subsequent Will confer right of way to the plaintiff and her other brother from the front side which was in fact not given in the earlier Will of 1994. In the light of the above discussion, when the evidence of P.W.2, the so called attesting witness when carefully analised, P.W.2 though in her chief examination stated that she was one of the attesting witnesses along with one Mr. Ravikumar. Since the testator had nervous problem, he affixed thumb impression in the presence of Sub-Registrar. Her entire chief examination proceeded on the premise that the Will was executed at Sub-Registrar office and thumb impression was obtained in the presence of Sub-Registrar. However, her cross examination in entirety goes to show that P.W.2 is not a licenced document writer and the evidence further disclosed the fact that she came to know the testator only on the date of execution of the Will that is on 22.02.2001. 13. Further her evidence would show that she has typed Ex.P.1 Will in her office on or about 18/19.02.2001 i.e., 3 days prior to the registration of the Will. According to her, she has prepared the will on the basis of the draft shown to her. According to her one Mr. Arunagiri, the middleman came to her office between 12.02.2001 and 22.02.2001. He only gave the draft Will. Therefore, she met Mr. Arumuga Naicker in his residence and handed over the draft Will. At that time two other persons were present with the testator. Only after the draft Will the testator fixed the date for registration of the Will. It is to be noted that P.W.1 evidence goes to show that the testator was taken from her house on the premise of taking to the hospital. P.W.2 in her evidence stated that the testator himself fixed the date after seeing the draft. Further, the evidence of P.W.2 would go to show that she does not know the sub-registrar office where the Will was registered. Further her evidence goes to falsify her own chief examination that the Will was executed in the Sub-registrar office. 14. It is relevant to extract the admission of P.W.2. "The Thumb impression of Mr. Arumuga Naicker was obtained while he was in auto rickshaw. I went and brought the stamp pad from the lady typist to affix his thumb impression. Further her evidence goes to falsify her own chief examination that the Will was executed in the Sub-registrar office. 14. It is relevant to extract the admission of P.W.2. "The Thumb impression of Mr. Arumuga Naicker was obtained while he was in auto rickshaw. I went and brought the stamp pad from the lady typist to affix his thumb impression. At that time the lady typist was in her office. Mr. Arumuga Naicker son Gnanamani only helped him to affix his left hand thumb impression. At that time, myself and auto driver were present. I was sitting in the Auto rickshaw by the side of Mr. Arumuga Naicker. I do not know at the time whether Ravikumar was present near by Auto rickshaw and I do not know him. Witness adds:- five or six persons were present around the auto rickshaw. I do not know who are those persons were around the auto rickshaw. Mr. Arumuga Naicker affixed his left thumb impression at about 2.30 p.m. During the registration of the Will,Arumuga Naicker, Gnanamani, Arunagiri and myself were present. Witness adds:- Arumuga Naicker unable to walk, hence the sub-Registrar came down to the Auto rickshaw where Mr. Arumuga Naicker was sitting and registered the Will in the Auto rickshaw itself." The above admission of P.W.2 the attesting witness itself clearly indicates the fact that the testator was not in a position even to move out of auto and the entire thumb impression was obtained with the help of Mr. Gnanamani. Her evidence further goes to show that she does not know who was the other attesting witness. Her evidence clearly proves that other attesting witnesses not present at that point of time. Therefore, the evidence of P.W.2 that, she has seen the execution and attestation of the Will, is doubtful. 15. From the evidence of the P.W.1 and P.W.2 that the Will was registered in the registrar office and thumb impression of Mr. Arumugam was obtained before the Registrar and the testator has executed the same out of his own free will and volition and sound disposal state of mind cannot be believed at all. The person who was aged about 90 years, was totally immoblilised and not even able to get out of the auto and his thumb impression was obtained by one of his sons Mr. The person who was aged about 90 years, was totally immoblilised and not even able to get out of the auto and his thumb impression was obtained by one of his sons Mr. Gnanamani, who actively participated in preparing the Will and conveniently remain silent in this proceeding in supporting the case of the plaintiff. All these facts clearly probabilize the contesting defendant's case that the Will has been prepared subsequently, only in order to get the right over the passage. 16. The active participation of one of the beneficiaries under the Will, taking testator to the Sub-Registrar office by an auto rickshaw from the house of the P.W.1 under the pretext of taking him to the hospital and obtained thumb impression, would clearly show that the thumb impression has been obtained only for the purpose of creating the Will. The evidence of P.W.2 clearly shows that at the time of obtaining thumb impression, the testator was sitting in the auto, his son Mr. Gnanamani (D3) helped him to affix his left hand thumb impression. At the relevant point of time the presence of other attesting witness Mr. Ravikumar was not at all spoken by P.W.2. Therefore, merely on the basis of the chief examination of P.W.2, execution and attestation of the document cannot be presumed. 17. Ex.D.1 filed through P.W.1 during her cross examination. Of course Ex.D.1 is mere photograph, same was not disputed. Though negatives of Ex.D.1 were not filed, as the photograph was not disputed by the plaintiff herself, the same clearly shows that the testator was totally depending on the other members of the family and the lady, who is shaving the face of the testator is none other than the wife of the contesting 4th defendant. This fact has been admitted by P.W.1 in her cross examination. Therefore, merely photograph has been marked, the admission of the plaintiff cannot be erased. When the deceased was already aged about 90 years, he was not even able to move and he is depending on the others, the testator independently going to the registrar office at the relevant point of time for executing the Will out of his own free will and volition with testamentary capacity is highly doubtful. Admittedly, the deceased died very soon after the registration of this document. These are also one of the circumstances to doubt the mental capacity of the deceased. Admittedly, the deceased died very soon after the registration of this document. These are also one of the circumstances to doubt the mental capacity of the deceased. At any event, if the execution and attestation is proved without any suspicion, then there is no difficulty in accepting the case of the propounder. 18. When the evidence of P.W.2 itself creates serious doubt in the mind of the Court about the mental faculty of the testator and the manner in which the thumb impression was obtained in the Auto Rickshaw, further, the other attesting witness was not there and other members of the family took active role in getting the documents registered, even they gone to the extent of taking the testator to the Sub-Registrar office by Auto Rickshaw to get the document registered, clearly shows that the deceased has not executed the Will out of his own free will and volition while he was in sound state of mind. It is also relevant to note that Ex.P.1 though registered, indicate the fact that the document was registered between 2 to 4 hours on 22.02.2001. But the evidence of P.W.2 shows that the thumb impression was obtained in the auto rickshaw and she has not even spoken about the presence of the other attesting witness, these facts show that the attestation and execution are not strictly proved, in fact her evidence creates serious doubt about the very execution of the Will. Merely the Will has registered, its genuineness cannot be inferred on the basis of the registration. It is further to be noted that if really the Will was prepared by P.W.2 who claim to have experience in document writing, her normal conduct would be to type the name of the person who propounded the Will. But it is totally absent in this Will. Whereas it is written as drafted by self. 19. Further, P.W.2 has also admitted that there is a difference in her own signature found in the Will at the time of identifying the deceased in the Registrar office and also at the time of attesting the documents. If P.W.2 has signed the document on the same day then the difference would not have been there. These facts also cannot be ignored altogether. Further the testator has not even whispered anything about the previous Will. If P.W.2 has signed the document on the same day then the difference would not have been there. These facts also cannot be ignored altogether. Further the testator has not even whispered anything about the previous Will. If really the intention of the testator was to cancel the earlier Will and give a right of way, he would have mentioned about the previous Will. It is also to be noted that the evidence of P.W.2 itself shows that the registration was done in the auto rickshaw. Considering the facts and circumstances of the case, this Court is unable to give any credence to Ex.P.1 since it shrouded with serious suspicious. The mental fitness of the testator is also not proved and the evidence of P.W.2 shows that the testator is not in the sound state of mind at the time of execution of the Will. At any event, considering the entire evidence of P.W.2, this Court is unable to give a seal of approval to the Will. In view the same the plaintiff is not entitled to grant Letters of Administration as prayed for. The issues are answered accordingly. 20. In the result, the suit is dismissed with costs.