THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY C.M.A.No.142 of 1990 Dt:24-08-2010 Between : L. Hariprasad ..Appellant And Lagadapati Suryakumari (Died) Per LRs & others .. Respondents Counsel for the Appellant: Sri N.V. Suryanarayana Murthy Counsel for respondent : Sri N. Subba Reddy, for R-2 < GIST >HEAD NOTE: ? CASES REFERRED : 1) AIR 1977 P & H 122 2) 1968 SC 1332 3) (2005) 1 SCC 280 THE HON’BLE MR JUSTICE L. NARASIMHA REDDY C.M.A.No.142 of 1990 JUDGMENT: This appeal is filed under Section 384 of the Indian Succession Act (for short ‘the Act’), against the order dated 02-01-1990, passed by the Court of District Judge, Nellore, in O.P.No.378 of 1981. 2. The 1st respondent is the mother of the 2nd respondent. They filed the O.P., under Section 372 of the Act, for grant of succession certificate in their faour, in respect of the estate of late Lagadapati Satyanarayana Naidu (hereinafter referred to, as ‘the deceased’). 3. The brief averments in the O.P. are that Lagadapati Subbaramanaidu and Savitramma had five sons, and the 1st respondent is the wife of one of the sons, Ramanaiah Naidu. The father of the appellant, by name, Kondaiah Naidu is another son. The three other sons, by name Satyanarayana Naidu, Satyarama Prasad, Dasaratharamaiah, remained unmarried, and by the time the O.P was filed, Subbaramanaidu died. 4. The husband of the 1st respondent, Ramanaiah Naidu is said to have left the house, somewhere in the year 1971, and did not return, ever since then. The 1st respondent had three sons by then. She pleaded that her brother-in-law, the deceased, maintained herself and her sons, and since there was no hope of Ramanaiah Naidu coming back, herself and the deceased lived like wife and husband, and the 2nd respondent was begotten. She pleaded that the deceased looked after them affectionately; so much so, he named them as nominees in two insurance policies, and he executed a Will, Ex.A-10, dated 02-06- 1978, in respect of two Fixed Deposit Receipts, in Vijaya Bank, Nellore, for a sum of Rs.9,435/- and Rs.14,532/-, respectively. It was stated that the executant of the Will died, on 15-07-1978, and accordingly they filed the O.P. 5. The appellant figured as 3rd respondent in the O.P., and he alone contested the case. He denied the averment of the 1st respondent, that she lived with the deceased, as wife, or that they gave birth to the 2nd respondent. According to him, his uncle, the deceased, died intestate and unmarried, and his estate devolved upon his paternal grand-mother, Savitramma, who was impleaded as respondent No.2 in the O.P., and she, in turn, executed a Will in his faour on 01-06-1981, Ex.B-22. It is stated that after the death of his grand-mother, the property, including the fixed deposits, in question, accrued to him. He challenged the validity, legality and truthfulness of the Will, Ex.A-10, dated 02-06-1978. It was pleaded that there are many suspicious circumstances surrounding Ex.A-10, apart from it being illegal, and prayed for dismissal of the O.P. 6. The trial Court allowed the O.P. 7. Sri N.V. Suryanarayana Murthy, learned Senior Counsel advanced arguments for the appellant. He contends that the very facts pleaded by the respondents 1 and 2 herein, make their claim untenable. He submits that it originates from an immoral act of illicit relation between the 1st respondent and the deceased, and even if the Will, Ex.A-10, is held to be proved, it cannot be acted upon, since it promotes an immoral act. According to him, there was no necessity or occasion for the deceased to execute the Will, when he was just 32 years of age, and though the Will is said to have been attested by one of his brothers, Satyarama Prasad, he was not examined as a witness, during his life time. He further submits that though Ex.A-10 is said to have been executed in the house of the 1st respondent, it did not see the light of the day, for a period of two years, nor any mention was made about it, in a case filed by the 1st respondent in the Madras High Court. He has placed reliance upon several precedents and provisions of law, in support of his contention. 8. Sri N. Subba Reddy, learned counsel for the 2nd respondent, on the other hand, submits that the 1st respondent faced horrifying situation, since the whereabouts of her husband were not known for about six or seven years, and it was the deceased, that gave her and her children shelter, and maintained them. He contends that as long as the 1st respondent and the deceased volunteered to live together, no one can take exception. Learned counsel submits that though the execution of a Will, by a person, at the age of 32 years, may appear to be unusual, if one takes into account, the situation and circumstances, that prevailed in the family, nothing abnormal about it would appear. He states that out of five brothers, three remained unmarried and all of them died at a very young age, and of the two married brothers, one left the house and did not turn up, ever since 1971. Learned counsel submits that Satyarama Prasad, one of the unmarried persons, who figured as an attestor in Ex.A-10 also died at a very young age within one or two years, after the suit was filed, and another brother by name, Subbaramanaidu died, still earlier. He contends that Ex.A-10 was proved beyond any reasonable doubt, and hardly there exist any suspicious circumstances. Alternatively, he contends that even if Ex.A-10 is to be ignored, being the sole natural heir, the 2nd respondent would succeed to the estate of the deceased. 9. The 1st respondent died during the pendency of the appeal. Her estate is succeeded by the 2nd respondent. The amount covered by the two FDRs is meager. However, the contest to the proceedings was so severe, that the litigation is pending for the past three decades. 10. The trial Court framed only one point for its consideration, viz., whether the respondents 1 and 2 herein are entitled for a succession certificate in respect of the estate of the deceased ? 11. On behalf of the respondents 1 and 2, PWs 1 to 5 were examined and Exs.A-1 to A-11 were marked, and on behalf of the appellant RWs 1 and 2 were examined and Exs.B-1 to B-23 were marked. 12. The entire controversy turned around the legality and validity of the Will, Ex.A-10. If that is valid and legal, the necessity to examine the legality of the Will, relied upon by the 2nd respondent, viz.,Ex.B-22, does not fall for consideration. On the other hand, if Ex.A-10 is held to be proved or not legal, virtually there is no opposition for the claim made by the appellant. 13. The deceased was unmarried and he executed a Will, Ex.A-10. The recitals in Ex.A-10 are to the effect that, himself and the 1st respondent lived together like, husband and wife, and that the 2nd respondent is their child. The circumstances under which they had to live together are also mentioned, viz., that his elder brother, Ramanaiah Naidu left the home in the year 1971, and did not come back. By referring to these recitals, the appellant pleaded that, on the face of it, it amounts to an immoral act and even if the Will is valid, it cannot be acted upon. Reference is made in this context, to Section 127 of the Act. It reads: “Sec.127: Bequest upon illegal or immoral condition.— A bequest upon a condition, the fulfillment of which would be contrary to law or to morality is void”. 14. It is evident that, the Section frowns at the condition in a bequest, the fulfillment of which would be contrary to law, or opposed to morality. The provision would be attracted, in case the Will contains a condition to the effect that the legatee thereunder would get the benefit, if only he does an immoral or unlawful act. For instance, a Will would become void, if there exists a recital in it, to the effect that the legatee would get the benefit under it, if he commits the murder of a named individual, or he performs an immoral act, mentioned by the testator. It is not even urged that Ex.A-10 contains any clauses or recital, which made the beneficiary obliged, to perform in any immoral acts. 15. A clear distinction needs to be maintained in this context, between the events, that have taken place, by the time the Will was executed by a testator, on the one hand, and those, which he imposes in the testament, as a condition precedent for the legatee to avail the benefit under it, on the other. The second point of distinction is the one, between the acts or omissions on the part of the testator himself, and those, that must blow from the proposed legatee. Section 127 does not refer to any facts and circumstances, that already existed, by the time the Will was executed or the acts or omissions, on the part of the testator. 16. An extreme example can be the one, where, one, convict of a serious crime, executes a Will in favour of another co-convict. Both of them have committed criminal or immoral acts. Still, Section 127 of the Act does not invalidate the Will, as long as it does not contain a condition, that requires the legatee to commit further criminal or immoral act. To the same category, belong the cases, where a testator was prompted to execute the Will in favour of another, by an act, which is otherwise illegal or immoral. These propositions may sound a bit extreme. However, law can not control each and every facet of human life, and a Court can enforce only what the law of the land ordains. 17. One reason, why law does not invalidate such testaments can be that, a Will is not supported by consideration, and it does not permit anyone to peep into the factors, that motivated the testator to choose a particular way of disposition. If a Will can be executed by an individual, in favour of anyone he likes, and law does not expect any justification for it, his freedom cannot be scuttled. The object underlying Section 127 of the Act is to prohibit a Will, from being used as a device to promote illegal and immoral acts. In the instant case, the testator did not require the legatees to do or abstain from doing any acts, much less, those, which are illegal or immoral. The Wills executed by him are not loaded with any conditions. Therefore, the contention advanced by the appellant cannot be accepted. 18. Now it needs to be seen, as to whether Ex.A-10 was proved. It was attested by two persons and one of them, PW-4, stated the manner in which Ex.A-10 came to be executed. Nothing contradictory, was elicited through this witness in the cross-examination. Another attestor was, the brother of the deceased, by name, Satyarama Prasad. In fact, he was impleaded as respondent No.7 in the O.P. However, within a short time, after the O.P was filed, he died, and he could not be examined. Section 68 of the Indian Evidence Act provides that, it would be sufficient, if one of the attestors of the Will is examined, to prove it. 19. Much emphasis is laid upon by the appellant, on the suspicious circumstances. It is true that the disposition under Ex.A-10 would appear abnormal, in the ordinary circumstances. It is also settled principle of law that mere proof of the Will, by the propounder thereof, is not sufficient, and he is under obligation to explain the suspicious circumstances, if any. According to the appellant, the following are the suspicious circumstances, viz., a) the deceased executing the Will, at the age of 32 years; b) no provision having been made in favour of the mother of the deceased; c) the 1st respondent not referring to the Will in the case filed by her at Madras High Court; and d) the benefit being conferred upon distantly related persons, overlooking other proximate relations. 20. The first circumstance mentioned above, indeed needs strong explanation. Normally, one does not come across the instances of a person of 32 years of age, executing the Will. However, if one looks at the background of the family, from which the deceased hails, totally a different picture would emerge. As observed earlier, out of five brothers, only two were married, and rest of the three, including the deceased, did not marry, even after crossing 30 years. Out of three, one brother, by name, Subbaramanaidu, died, when he was about 30 years old. Ramanaiah Naidu, the husband of the 1st respondent, was mentally unsound, or disturbed, and left the home in the year 1971, and did not return, thereafter. The deceased, no doubt, died in an accident, few months after he executed the Will. However, one of the attestors and his brother, Satyarama Prasad, died a natural death, when he was about 30 years of age. 21. Another important factor is that partition took place in the family, when as many as three brothers remained unmarried. It is only the father of the appellant, that appears to have led an ordinary life. Even here, we notice certain extraordinary features. Out of his brothers and sisters, the appellant alone contested the claim of the respondents 1 and 2 herein, for a relatively smaller amount, while rest of the family members spread over three generations, i.e. the grand- parents, uncle and brothers and sisters of the appellant, remained sympathetic towards them, or at least silent. Under these circumstances, it cannot be said that the execution of the Will by the deceased at the age of 32 years is suspicious. 22. In this context, reference can be made to the judgment of the Punjab and Haryana High Court in RAJESWARI RANI v. NIRJA GUIFRI[1]. It was held that the mere fact that the testator executed a Will, when he was young; cannot be treated a suspicious circumstance, and the Court cannot anticipate an ideal situation for execution of a Will. 23. As to the second one, the parents of the deceased were very much alive by the time he executed the Will. His two brothers i.e. father of the appellant and Satyarama Prasad, were also alive. All of them were enjoying their own respective shares of property. Ramanaiah Naidu was also allotted a share in the partition. However, the family was without any support. It has come on record that the deceased took two insurance policies in his name. Initially, the nominee was one of his brothers. Later on, he named the respondents 1 and 2, in each of those policies, as nominees. 24. It has already been mentioned that Satyarama Prasad, the brother of the deceased, figured as an attestor in Ex.A-10. He died after the suit was filed. The 1st respondent, who deposed as PW-3, stated that Satyarama Prasad has also executed a registered Will, dated 30-01-1984 in her favour, and certified copy thereof was filed as Ex.B-13. The appellant did not dispute the correctness of the same. This only shows the affection or sympathy, which has shown towards them. The 2nd respondent was none other than the daughter of the deceased. It may appear to be some-what immoral or abnormal. However, as long as the parents of the child acknowledge the parentage, the likes or dislikes of others do not matter much. 25. Now, the third circumstance: It has come in the evidence, that Ex.A-10 was executed by the deceased at the house of the 1st respondent. After the death of the deceased, she filed a case in the Madras High Court in respect of certain claim and no reference was made to the Will. The 1st respondent offered a detailed explanation for this. She stated that she instructed an advocate at Nellore, to arrange for filing of a suit at Madras, and that she did not even know the contents of the suit. Except that a suit was filed, it is not brought on record as to what has happened to it. Once the Will is held proved by examining an attesting witness, the mere failure to mention the same in one of the proceedings, cannot by itself, be a suspicious circumstance. 26. The last is about the conferment of benefit only on respondents 1 and 2. In a way, this aspect is covered by discussion in the earlier paragraph. The deceased admitted his fatherhood of the 2nd respondent. One does not require a greater proximity, than this, to make a bequest. Equally same is the sympathy towards the 1st respondent. 27. I n GORANTLA THATAIAH v. THOTAKURA VENKATA SUBBAIAH[2] the Hon’ble Supreme Court held that, it is always for the legatee of the Will, to remove suspicious circumstances, and that no hard and fast rule can be laid, as to what constitutes the suspicious circumstance. To the same effect is the judgment of the Supreme Court in MEENAKSHIAMMAL (DEAD) THROUGH LRS. AND OTHERS v. CHANDRASEKARAN AND ANOTHER[3]. It can safely be held that the respondents 1 and 2 have proved the execution of the Will and have explained the suspicious circumstances. 28. Even if there is any infirmity in this regard, and Ex.A-10 is to be ignored, the fact remains that the 2nd respondent is the daughter of the deceased, and if natural succession is to follow, she would be the only successor to the deceased. Though the deceased was unmarried, he admitted that he is the father of the 2nd respondent. The school register, marked as Ex.A-1, filed by PW-1, clinchingly proved this aspect. Further in Ex.A-5, insurance policy, the name of the 2nd respondent was clearly mentioned as the daughter of the deceased. 29. Viewed from any angle, the order under appeal does not warrant interference. The C.M.A is accordingly dismissed. 30. There shall be no order as to costs. ________________________ L. NARASIMHA REDDY, J. Dt. 24-08-2010. Note: L.R. copy to be marked. (B/O) KO* [1] AIR 1977 P & H 122 [2] 1968 SC 1332 [3] (2005) 1 SCC 280