IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 18.08.2009 Coram : THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN and THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA Original Side Appeal No.185 of 2001 Kamala Menon Cochran .. Appellant(Plaintiff) v. 1. K.P.Ramachandra Menon 2. K.P.Balakrishna Menon 3. K.P.Chandrashekaran 4. Leela Rajagopal Tranquility Civil Station-Post Calicut – 673 020 5.U.Ajith Kumar Menon World Space Consultant Networking Por. 6.U.Raj Kumar No.46, Campbell Avenue Parking Side Essex – IG 6 1EB United Kingdom 7.Anitha Benedet Box No.2062, Salve Lake Alberta, Canada – TOG 2AO Respondents(Defendants) Original Side Appeal filed under Order XXXVI Rule 1 of the Original Side Rules, 1956 against the judgment and decree of a learned single Judge of this Court dated 23.1.2001 made in T.O.S No.16 of 1994. For appellant : Mr.R.Viduthalai, Senior Counsel and Mr.S.Ramasamy, Senior Counsel, for M/s.S.Subramaniam and Mr.D.Rajagopal For respondents : Mr.R.Krishnasamy, No.1 and 3 to 7 Senior Counsel for Mr.T.N.Unni Nambiar https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT K.RAVIRAJA PANDIAN, J. The Original Side Appeal is filed against the judgment and decree of a learned single Judge of this Court dated 23.01.2001 made in T.O.S No.16 of 1994. 2. O.P.No.343 of 1992 was filed under Sections 222, 237 and 276 of the Indian Succession Act, XXXIX of 1925 for issuance of the Probate in favour of the plaintiff – Mrs. Kamala Menon Cochran in respect of the Will of the deceased K.P.Janaki Amma executed and registered on 11.01.1982 and later it was converted as T.O.S.No.16 of 1994 as one of the brothers of the plaintiff K.P.Rajagopala Menon filed caveat and disputed the Will. Subsequently, the other brothers were joined as parties. 3. For the sake of convenience, the parties are referred to as arrayed in the suit. The precise case of the parties is as follows: One K.P.Janaki Amma died on 27.04.1991. She executed and registered a Will and testament on 11.01.1982 in the presence of witnesses, whose names appear at the foot thereof, in the office of Sub-Registrar, T. Nagar, Chennai. The Original Will was lost and therefore a certified copy of the registered Will has been filed. The plaintiff was appointed as executrix of the said Will. Prior to the instant Will, the testatrix executed a Will on 28.12.1981, but cancelled the same by executing the instant Will. The deceased Janaki Amma left K.P.Balakrishnan,K.P.Chandrasekaran, K.P.Rajagopal, K.P.Ramachandran, the sons, Kamala Menon Cochran, the daughter and Geetha Sridhar, grand daughter, as her legal heirs. The said Geetha Sridhar filed an affidavit conveying her no objection for issuance of the probate of the Will dated 11.01.1982 to the plaintiff-executrix. The plaintiff sought for probate. 4. K.P.Rajagopal, (since deceased), the first defendant filed written statement contending that the testatrix Janaki Amma had no disposing right over the property as the property was purchased in the name of the testatrix by her husband in the year 1937. The testatrix was under the care and custody of the plaintiff and the other children of the testator were prevented from meeting her by the plaintiff. The plaintiff has tremendous influence on her mother, the testatrix and deceived her into making the Will. The earlier Will dated 28.12.1981 was cancelled by the Will dated 11.01.1982. The contents of both the Wills are same. The only difference is that in the first Will, the witnesses are the neighbours of the testatrix and in the second Will the witnesses were the plaintiff's colleagues. By undue influence and coercion the plaintiff, made her mother to execute the first Will and later suspecting that her treachery might be exposed, the plaintiff managed to get the second Will made by her mother on the witnesses having allegiance to her. The two Wills made within the interval of fourteen days without any difference in the contents raised a doubt to the genuineness of the Will. At the time of execution of the Will, the testatrix had four sons and daughter- the plaintiff. It is impossible to believe that the testatrix would https://hcservices.ecourts.gov.in/hcservices/ have disinherited her sons and bequeathed the entire property exclusively to the plaintiff and grand daughter born to the pre- deceased daughter. The alleged Will having been made nine years prior to the death of the testatrix, it is impossible to believe that the testatrix had not told any of her children about the Will. It is further averred that the first defendant filed a partition suit of all the properties left behind by his mother Janaki Amma and her husband Echunni Menon and the same is pending in O.S.No.49 of 1994 before the Sub-Court, Ottapalam, Kerala. The bequeathed property is also one among the properties of the partition suit. 5. The second defendant Ramachandra Menon filed written statement on 24.12.1997 verbatim reproducing the averments contained in the written statement of the first defendant, but, filed additional written statement on 05.06.1999 wherein he denied the execution of the Will by the testatrix, with full knowledge, free volition and in good state of health and further contended that the signature contained in the Will is not that of the testatrix, but forged one. 6. The fourth defendant K.P.Chandrasekaran filed written statement contending, inter alia, that even a few days before the death of K.P.Janaki Amma with whom the fourth defendant was on excellent terms had requested the defendant to introduce her to an advocate so that her last Will and testament could be written. So, it is obvious that Janaki Amma did not execute the Will on 11.01.1982. The alleged Will was the outcome of undue influence and coercion exerted by the plaintiff. The very fact that the testatrix was murdered brutally on the night of 27.04.1991 would indicate that who ever has got her last Will and testament did not give her an opportunity to change the same or execute a fresh Will. In other aspects, the written statement is identical as that of the other defendants. 7. While the matter was pending before the learned trial Judge, the first defendant Rajagopala Menon died on 03.03.2000 and his legal heirs were brought on record as defendants 5 to 7. 8. Before the learned trial Judge, certified copies of the Wills were marked as Exs.P.1 and P.2 respectively. The xerox copy of Ex.P2 is marked as Ex.P7 and the letter of the testatrix dated 10.12.1981 to the first defendant is marked as Ex.P.8. The plaintiff examined herself as P.W.1. The other beneficiary under the Will, Ex.P.2 Geetha Sridhar was examined as P.W.2. One of the attesting witnesses Jayalakshmi was examined as PW 3. The Sub Registrar of T.Nagar Registrar's office, who registered the Will was examined as P.W.4. The wife of the second defendant one Indira Ramachandran has been examined as D.W.1. The fourth defendant K.P.Chandrasekaran was examined as D.W.2. 9. The learned trial Judge, after trial, non suited the plaintiff for the issuance of probate on the ground that the evidence would point out the undue influence exercised by the plaintiff over her aged and ailing mother for the preparation, execution and https://hcservices.ecourts.gov.in/hcservices/ attestation of the alleged Will, that the plaintiff has taken prominent part in the execution of the Will to grab the property, that the Will was prepared under suspicious circumstance, that it did not express the real mind and intention of the testatrix, that the plaintiff neither proved the execution and attestation of the Will as required by law nor explained to the satisfaction of the Court to accept the Will as genuine. The correctness of the same is now canvassed in this appeal. 10. Heard the learned counsel in either side and perused the materials available on record. 11. The line of judgments of the apex Court say in one voice that the onus of proving the Will is on the propounder. In the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator, as required by law, is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court for the Court to accept the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. There must be real, germane and valid suspicious features and not fantasy of doubting mind. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. 12. The legal requirement in terms of sections 63 of the Indian Succession Act, 1925 and 68 of the Indian Evidence Act, 1872 is now well settled. A Will, like any other document, is to be proved in terms of the provisions of the Indian Succession Act and Indian Evidence Act. The testamentary capacity of the propounder must be established. The execution of the Will by the testator has to be proved. Atleast, one attesting witness is required to be examined for the purpose of proving the execution of the Will. However, it is also required to be shown that the Will has been signed by the testator/testatrix with his/her free Will and that at the relevant time he/she was in the sound disposing state of mind and understood the nature and effect of disposition. It is also required to be established that he/she has signed the Will in the presence of two attesting witnesses, who attested his signature in his presence or in the presence of each other. The deprivation of due share by the natural heirs by itself is not a factor, which would lead to the conclusion that there existed suspicious circumstances. But the background of the facts would tilt to the balance otherwise. When a https://hcservices.ecourts.gov.in/hcservices/ will is prepared and executed under circumstances which raise the suspicion of the Court, it lies on the propounders not merely to prove the execution of the will, in the sense that it was signed by the testator, but also to adduce evidence which removes such suspicion and to satisfy the Court that the testator/testatrix knew and approved of the contents of the Will. A Court of probate is a Court of conscience and will insist on every suspicious circumstance surrounding the execution of the instrument dispelled by the plaintiff. Being a Court of conscience does not mean that it is also a Court of suspicion seeking imaginary grounds for suspicion, even where there is no reasonable basis for entertaining suspicions. It is the privilege and right of the testator/testatrix to keep his/her Will secret if he/she so desires. Altering the natural course of succession being the very object of making the Will, the fact that it has been altered to some extent does not by itself constitute a suspicious circumstance - vide - Sadachi Ammal v. Rajathi Ammal, AIR 1940 Mad 315, Indu Bala Bose v. Manindra Chandra Bose, (1982) 1 SCC 20), Guro (Smt) v. Atma Singh, (1992) 2 SCC 507, S. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443, Rani Purnima Devi v. Kumar Khagendra Narayan Dev, AIR 1962 SC 567, Savithri v. Karthyayani Amma, (2007) 11 SCC 621), Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369. Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande, (2003) 8 SCC 537, P.P.K.Gopalan Nambiar V. P.P.K.Balakrishnan Nambiar, AIR 1955 SC 1852, Pushpavathi V. Chandraraja Kadamba, AIR 1972 SC 2492, Rabindra Nath Mukherjee v. Panchanan Banerjee, AIR 1995(4) SCC 459 and Daulat Ram v. Sodha, (2005) 1 SCC 40. Keeping in mind the above propositions, let us consider the case now. 13. First, let us consider whether the Will, Ex.P2 has been proved, as required by law. P.W.1 has spoken to the effect that her mother, the testatrix, in January 1982 told her that she had executed the first Will on 28.12.1981 and made her as the executrix and as that first Will contained some mistake as to the number of living sons, she wanted to execute another Will on the advice of the Registrar that the first Will could not be rectified. The first Will was attested by one Chakrapani and Sriram, the neighbours of the testatrix. The testatrix being embarrassed in again requesting them to be the witnesses in another Will, within a short period, requested Seetha Padmanabhan, who is also a neighbour and known to the family for more than 20 years and also requested Jayalakshmi a colleague of P.W.1. The said Jayalakshmi is not only a colleague of P.W.1, but also a family friend known to and knowing all the family members of the testatrix. On 11.01.1982, P.W.1 along with the testatrix and two witnesses went to the Sub Registrar's office, T.Nagar, wherein the testatrix showed the Will to the Sub Registrar. The witnesses identified her. The testatrix signed the Will and thereafter the Registrar asked the witnesses to attest the Will. The witnesses attested the Will. 14. As an attesting witness Jayalakshmi P.W.3 has spoken to about the execution of the Will by the testatrix in her presence. She went to testatrix's house on 11.01.1982; that the testatrix took her as well as Seetha Padmanabhan to the nearby Registrar's office; https://hcservices.ecourts.gov.in/hcservices/ that the house of Seetha Padmanabhan was very near to the house of the testatrix; and that they went by walk to the Registrar's office. The testatrix presented the Will to the Registrar. P.W.3 identified Janaki Amma who signed the Will in the presence of witnesses. Thereafter, P.W.3 attested the document and later Seetha Padmanabhan signed the document. 15. P.W.4, the Sub Registrar who is an uninterested and independent witness, has clearly spoken to about the execution of Ex.P2 stating that it has been registered by him, after verifying the identity of the testatrix. His evidence proceeds to the effect that the document was presented for registration by one Janaki Amma on 11.01.1982. P.W.4 put questions under Rule 3(1) of the Registration Rules and after satisfying himself, the document was registered. Two independent witnesses have identified Janaki Amma before him. His evidence, though not to be regarded as evidence of attesting witness with 'Animus attestandi', but definitely can be taken as an evidence for the execution of the Will. The evidence of P.W.1, the propounder, P.W.3, one of the attesting witnesses of the Will and that of P.W.4, the Sub Registrar, who registered the Will would prove the execution of the Will, as required under section 63 of the Succession Act and Section 68 of the Evidence Act. Thus, the onus of proving the Will has been discharged by the propounder, as required by law. 16. A stand is taken in the written statement of defendants 1, 2 and 4 that the testatrix Janaki Ammal had no disposing right over the suit property, as the property was purchased by her husband and thus, did not belong to her exclusively so as to entitle her to bequeath the property; and that the property belongs to the legal heirs of the testatrix's husband. Though such a stand was taken, that has not been established by the defendants by adducing necessary evidence. It is an admitted fact that the property was purchased in the year 1937 in the name of Janaki Amma and she had been in possession and enjoyment of the same throughout and was residing in it till her death on 27.04.1991. Apart from that, the question of title does not arise for consideration in the suit for issuance of probate. The learned trial Judge has also come to the same conclusion, which requires no modification. 17. In the written statements of the defendants, a conscious statement is made that the testatrix was under the care and custody of the plaintiff and the other children of the testatrix were prevented by the plaintiff from meeting her; that the plaintiff had tremendous influence on her mother; that she has deceived her mother; and that the Will is the outcome of the undue influence and coercion exercised by the propounder. It is well settled that the person who pleads undue influence and coercion on the part of the propounder over the testatrix to execute the Will, has to prove the same. Vide Savithri v. Karthyayani Amma, 2008-1-LW 255. There is absolutely no evidence adduced to sustain the same. The Will is dated 11.01.1982. It is uncontroverted, rather, admitted fact that P.W.1 was living away from her mother right from the year 1961 when she was studying in Bangalore and after completion of her college studies, she stayed https://hcservices.ecourts.gov.in/hcservices/ at Tirupathi, as she was employed as a Professor in Padmavathi College, Tirupathi from the year 1966. She used to call on her mother during weekends and holidays. As a matter of fact, Ex.P.1 was executed on 28.12.1981 bequeathing the properties on P.Ws.1 and 2 during which period also, P.W.1 against whom the allegation of exercise of undue influence was alleged, was at Tirupathi. In the Will, Ex.P.2 dated 11.01.1982 the properties have been bequeathed to P.Ws.1 and 2. Only during the period of execution of Ex.P.2 the propounder P.W.1 was at Madras. Merely being present and accompanying the testatrix to the Registrar's office could not, by itself, be regarded as exerting coercion or undue influence on her mother or taking a prominent part in the preparation, execution and attestation of the Will. 18. It is on evidence that only the fourth defendant Chandraksekaran and the other deceased brother Velayutham were all along with the testatrix at Madras. When that being the position, in the absence of any clinching evidence to show that the plaintiff exerted coercion or undue influence, like, she threatened that she would remain away from her mother if the testatrix did not give the property to her and not calling on her mother on that ground; or that the plaintiff had always been with her mother, helping and satisfying all the needs of her mother and thereby influencing her to execute the will in her favour is also not available in the given set of facts. There is not even an iota of evidence made available before the Court to atleast to reach an inference that the plaintiff would have exerted undue influence and coercion on the testatrix. The one and the only evidence available on record through D.W.1, the wife of the second defendant is that the plaintiff must have exerted influence on Janaki Amma to execute the Will. Even this sort of evidence is not coming through D.W.2 Chandrasekaran. The evasive evidence of D.W.1, is not supported or corroborated by any other evidence or material, and such an evidence did not inspire the confidence of the Court. The suggestions made to that effect to P.W.1 has been categorically denied by her in her cross examination. 19. The reason for bequeathing is stated in the Will itself, which reads thus : " I have at present living five sons and one daughter. All of my sons are settled in life and, moreover, during the life of my late husband, properties were purchased in their names. I am, therefore, leaving no bequest to them. I had a daughter named K.P.Leela who died on February 2, 1975, leaving her only child K.P. Geetha, who was married on January 23, 1978 to Sridhar Marar. In view of the irreparable bereavement caused by the death of this beloved daughter, I am deeply attached to my grand-daughter and wish to provide for her in the event of my death just as I would have wanted to provide for her mother had her mother survived me. https://hcservices.ecourts.gov.in/hcservices/ I have a second daughter, K.P. Kamala Menon, aged 44 and spinster, who is presently employed as Principal, Sri Padmavathi Women's college, Tirupathi, Andhra Pradesh. She too is dear to me and I wish to provide equally for her." 20. It is an admitted fact that after the execution of Ex.P2, the Will on 11.01.1982, the testatrix was very much alive till 1991. If the contention of the defendants that the Will is the outcome of coercion or undue influence, the testatrix would have cancelled or modified the Will immediately after P.W.1 went back to Tirupathi or some months later or some years later. This act of the testatrix to keep the registered Will in tact till her death, not only falsifies the case of exertion of coercion and undue influence, but also the evidence of the fourth defendant as D.W.2 that few days prior to the death of the testatrix, she requested him to introduce an advocate to execute her last Will. It is the uniform stand of the defendants that the testatrix intended that the properties should be partitioned equally by all the heirs. If that be the case, the statement of Chandrasekaran that few days before her death, the testatrix requested him to introduce an advocate for the preparation of the Will is against the very stand of the defendants for equal partition. It is to be noted that the fourth defendant was arrested and later on released on bail by the police in connection with the murder of the testatrix and her another son Velayutham on 27/28.04.1991. 21. Further, almost all the witnesses including D.Ws.1 and 2 have categorically deposed that the testatrix was a very strong willed, independent and shrewd woman which shows that she would not succumb to coercion. There is no possibility to exert pressure or coercion or undue influence on her. 22. On a reading of the Will and on the analysis of the evidence available on record, we are of the view that the defendants have not proved the case of undue influence exerted by P.W.1 for writing the Will. So is the contention with regard to the prominent role played by P.W.1 for preparation, execution and attestation of the Will. 23. It is contended on behalf of the defendants that the non production of the original of the Wills, Exs.P.1 and P.2 and the possession of the xerox copy of the Will, Ex.P2 create suspicious circumstances. P.W.1 has clearly spoken to about the circumstance in which the first Will, Ex.P1 was destroyed. She has deposed that her mother, the testatrix came to Tirupati after her surgery for subdural haematoma and she was there at Tirupathi from August 1989 till the end of October 1989 for recuperation. The testatrix asked P.W.1 to take a copy of Ex.P2 and accordingly she took out a xerox copy and placed the original Will in a brown envelope super-scribing it as KPJ's Will and returned it to the testatrix. At the request of the testatrix the original Will of Ex.P1 was destroyed by her. The testatrix alone was having the Will, Ex.P2. It is the further evidence of P.W.1 that on 27/28.04.1991 she came down to Madras from Tirupathi on hearing the news of the murder of her mother; that she was shocked on seeing the body of her mother, and that after relieving from the initial shock she remembered about the Will. When https://hcservices.ecourts.gov.in/hcservices/ she was searching for a cloth to be placed on the body of her mother in the almirah, she saw the empty envelope in which the Will was kept originally, super-scribed as KPJ's Will. It is the further evidence of P.W.1 that at the time of seeing the empty envelope, the fourth defendant was there, but however that was denied by the fourth defendant. So, the non availability of the original Will with P.W.1 has been clearly established by her evidence. There is no contra