* THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY + Civil Miscellaneous Appeal No.2896 of 2002 % 30-12-2009 # Pushpa Charles …Appellant VS. $ 1. Michael Nicholas & Ors. ...Respondents ! COUNSEL FOR APPELLANT: MR.A.TULSI RAJ GOKUL ^COUNSEL FOR RESPONDENT No.1: MR. MOHD.SHAFIUDDIN COUNSEL FOR RESPONDENT No.5: MR.K.HARINATH < Gist: > Head Note: ? CITATIONS: 1) AIR 1982 S.C. 133 2) AIR 1962 S.C. 567 3) (1994) 5 SCC 135 4) AIR 1959 S.C. 443 5) AIR 1977 ANDHRA PRADESH 348 6) 2004 (6) ALT 18 7) AIR 1977 S.C. 74 8) 2007(3) ALT 75 THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY CMA No.2896 of 2002 Date:30th December, 2009 Between: Pushpa Charles …Appellant and 1. Michael Nicholas & Ors. …Respoondents *** THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY CMA No.2896 of 2002 JUDGMENT: This Civil Miscellaneous Appeal is filed under Section 384 of the Indian Succession Act 1925 (‘the Act’ for brevity) against the order dated 1.8.2002 passed by the Principal District Judge, Ranga Reddy in O.P.No.1214 of 1998. 2. Respondent No.1-Michael Nicholas is the petitioner in O.P.No.1214 of 1998. The appellant is the 5th respondent in the said O.P. The respondents 2 to 6 herein are the respondent Nos.1 to 4 & 6 in the said O.P. 3. For the sake of the convenience, the parties are referred to as they are arrayed in O.P.No.1214 of 1998. Charles Nicholas was an Audit Inspector in APSRTC. The 5th respondent Smt Pushpa married Charles Nicholas, the brother of the petitioner, on 11th January 1982. She was an employee in Mysore University as on the date of marriage and even after the marriage, she continued to stay at the place of her employment. According to the petitioner, Smt Pushpa Charles deserted Charles Nicholas on 5.3.1985 and has been living at Mysore. Charles Nicholas underwent operation for his Edenocarcinoma Prostrate and Renal failure. During that period, the petitioner being his elder brother took care of him. Smt Pushpa never came to Hyderabad to look after the welfare of Charles Nicholas. Smt Pushpa has no issues out of the wedlock. Charles Nicholas being an employee of APSRTC has to get various service benefits from his employer. He suffered from prostrate cancer and took treatment in Nizam Orthopedic Hospital, Hyderabad. He executed a Will on 26.12.1996 in the presence of an Advocate and Notary by name P.V.Rajender Prasad and two attestors namely; V.Manoranjan Das and Sri N.Jayashankar in sound disposing state of mind. As per the Will, he bequeathed all service benefits and other benefits in favour of the petitioner and they are:- 1. LIC Policy No.38113575 insured for Rs. 10,000/- 2. Provident Fund benefit from the office Secretary, APSRTC Provident Fund Trust, Musheerabad, Hyderabad Rs.2,16,000/-. 3. Gratuity amount Rs.1,00,000/- 4. Staff Retirement Benefit Scheme Rs. 4,513/- 5. Employee death link insurance scheme Rs. 26,000/- 6. Staff Benevolent and Gift Scheme Rs. 65,000/- 7. Co-operative Credit Society (MRO) Fund Rs. 66,570/- ________________ Total: Rs.4,88,083/- ________________ Charles Nicholas died on 27.12.1996. His brother Michel Nicholas filed a petition under Section 276 of the Indian Succession Act, 1925 for grant of Probate of Will dated 26.12.1996 so as to enable him to receive the service benefits from the office of the employer of the testator-Charles Nicholas. Respondent No.5 Smt Pushpa Charles resisted the claim of the petitioner. She disputed the Will propounded by the petitioner on the ground that the same was obtained by him under coercion in the last days of the testator while he was lying on bed in helpless situation not in a position to speak and in sub- conscious state due to Renal failure. The petitioner prevented her from attending last rights of her husband-testator. Para Nos.8 & 9 of the counter affidavit need to be noted and they are thus:- “In reply to the averments contained in Para No.7, 8, 9,10 & 11 the respondent herein denies the same as false, fabricated and are only invented for the purpose of instituting this O.P in an attempt to misappropriate the terminal benefits of her late husband i.e., late Charles Nicholas under the guise of a will which is alleged to have been executed by her husband and in an effort to disentitle this respondent to all such terminal benefits to which she alone is legitimately entitled as she is the only, surviving successor or heir to the aforesaid terminal benefits of her late husband, since she is issueless, earlier her husband late Charles Nicholas nominated his mother Smt Arogya Marry as the nominee for the said benefits and since she already expired all the benefits should legitimately go in four of respondent No.5 herein, since she is the successor to the same. Further, the said will cannot be relied upon since the same is obtained from late Charles Nicholas by resorting to pressure tactics and therefore the petitioner is put to strict proof of the same. It is submitted that since this respondent has already filed a suit bearing No.O.S.680 of 1999 on the file of IV Junior Civil Judge, City Civil Court, Hyderabad for declaring herself to be entitled for all the terminal benefits of her late husband Sri late Charles Nicholas and as the same subject matter of the said suit is also the subject matter of the above O.P for a succession certificate and grant of probate, instant case and proceedings would certainly amount to multiplicity of proceedings more particularly when the petitioner herein is not entitled to get the relief prayed for as the proceedings being summary in nature and where the validity of otherwise of the will cannot in any event be adjudicated upon, hence the above said petition is not maintainable in the light of the respondent No.5, disputing the validity and veracity of will, the petition may therefore be dismissed illumine.” 4. The learned District Judge formulated the following points for consideration:- 1. Whether Charles Nicholas had duly executed Ex.A2 will, dated 26.12.1996 in sound and disposing state of mind and it was attested in accordance with law? 2. To what relief? 5. On behalf of the petitioner, he got himself examined as P.W.1 and examined Attestor of Will namely; Manoranjan Das as P.W.2 and Attestor-cum-Notary namely; P.V.Rjendra Prasad as P.W.3 and marked three documents as Exs.A-1, A-2 and X-1. Ex.A-1 is the Death Certificate, Ex.A-2 is the Original Will and Ex.X-1 is the Notary Register. On behalf of the 5th respondent- wife, she got herself examined as R.W.1 and examined one A.Zachkrah as R.W.2. 6. The learned District Judge, on considering the evidence brought on record and on hearing the counsel appearing for the parties, held Issue No.1 in favour of the petitioner and consequently, allowed the petition for grant of Probate of Will in respect of the service benefits of Charles Nicholas, who died on 27.12.1996, by an order dated 1.8.2002. The said order is assailed in this Civil Miscellaneous Appeal. 7. Heard learned counsel appearing for the appellant and learned Counsel appearing for the 1st respondent. 8. Learned Counsel appearing for the appellant submits that Ex.A2 Will propounded by the 1st respondent is shrouded with suspicious circumstances and since the suspicious circumstances are not properly dispelled, the said Will is liable to be rejected in which case, the order impugned in this Civil Miscellaneous Appeal is liable to be set aside. In elaborating his arguments, he would submit that as on the date of the alleged execution of the Will, the testator was not in sound state of mind and he was incapable of making bequests with regard to his properties and that the beneficiary i.e., the 1st respondent was very much present at the time of execution of the Will and that itself is sufficient to show that he dominated the will of the testator and the same would lead to draw an inference that the testator was prevailed over to execute the Will as desired by the 1st respondent. He would also submit that there was no special reason for exclusion of the natural heir i.e., the wife, who is no other than the appellant herein, from any of the service benefits. A further contention has been advanced by him that under no circumstances, a normal person could execute the Will excluding the wife from receiving any of his service benefits. The learned counsel took me to the evidence of P.Ws.2 and 3 and stressed that there was no consistency with regard to the time of execution of Ex.A2 Will. P.W.2 claims to have gone to the house of the testator in the evening hours around 5.P.M., on 26.12.1996 and whereas P.W.3 stated that he went to the house of the testator at about 1 P.M. The learned counsel magnifying this inconsistency urged that the presence of PWs.2 and 3 at the time of execution of Ex.A2 Will is wholly unbelievable and in which case the suspicious circumstances shrouding Ex.A2 Will propounded by the 1st respondent remain undispelled and thus no credence could be given to the Will propounded by the 1st respondent. 9. The learned counsel appearing for the 1st respondent submits that the appellant at no point of time, after the marriage, resided with the testator and she did not even call on the testator while he was suffering from serious ailments and it is the 1st respondent and his family members who took care of him for a quite long time and indeed, the testator resided with the 1st respondent as one of the family members and the testator bequeathed the service benefits in favour of the 1st respondent out of love and affection being deeply overwhelmed by the services rendered by the 1st respondent and his family members. He would further submit that the minor discrepancy with regard to the timing of the presence of P.Ws.2 and 3 at the house of the testator on the date of the Will is not sufficient to doubt the genuineness of the Will or to reject the testimony of P.Ws.2 and 3 in toto. More particularly P.Ws.2 and 3 are very responsible persons in the society and there is no reason for them to speak false. The Trial Court considered the evidence of P.Ws.2 and 3 in right perspective and found that Ex.A2-Will is a genuine one and the same has been executed by the testator out of his own free will while in sound disposing state of mind. The learned counsel further submitted that the appellant did not even care to attend on the testator while he was undergoing treatment in Nizam Institute of Orthopedic Hospital and she did not even visit the testator while he was suffering from various ailments from the year 1985. 10. The mode of proving the will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act, 1925. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of 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 before the Court accepts the will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be regarding the genuineness of the signature of the testator, the condition of the testator’s mind, the disposition made in the will being unnatural, unprobable 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. If the propounder succeeds in removing the suspicious circumstances, the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. Any and every circumstance is not a ‘suspicious’ circumstance. A circumstance would be suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal situation or is not of a normal person. 11. ‘Will’ being a document has to be proved by primary evidence except where the court permits a document to be proved by leading secondary evidence. Since it is required to be attested, as provided in Section 68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the attesting witnesses at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925. In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus, which rests on the propounder, is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the Will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so. 12. The question for consideration is, whether the respondent successfully discharged the onus of proving the due execution of the will by producing the evidence of two attesting witnesses of the Will? 13. The learned counsel appearing for the appellant submits that the will propounded by the 1st respondent is shrouded with the following suspicious circumstances: Firstly, all the benefits are given to the 1st respondent to the exclusion of the appellant, who is no other than the wife of the testator; Secondly, the 1st respondent being the sole beneficiary under the will has taken active part in getting the will executed by the testator; Thirdly, there is no consistency in the evidence of PW.2-Attestor and PW.3-Advocate-Notary, who scribed the will, with regard to the time of execution of the will. In support of the above referred submissions, reliance has been placed by the learned counsel on the judgments of the Supreme Court in Smt. Indu bala Bose v. Manindra Chandra Bose[1]; Rani Purnima Debi v. Kumar Mhagendra Narayan Deb[2]; Bhagwan Kaur v. Kartar Kaur[3]; H.Venkatachala Iyengar v. B.N.Thimmajamma[4] and the judgments of our High Court in M.Dhanalakshmi v. K.R.Saradamba[5] and Inkollu Sasikala v. Inkollu Venkata Murthy[6] 14. In Inkollu Sasikala’s case (6 supra), learned single Judge of this Court has observed that a reading of sub-section (2) of Section 264 of the Indian Succession Act, 1925, clearly discloses that Courts, outside the limits of the towns of Calcutta, Madras and Bombay, do not have the power to receive application for grant of probate or letters of administration unless the State Government confers such power by a notification published in the official Gazette. 15. Section 264 of the Indian Succession Act, 1925, reads as hereunder: “S.264. Jurisdiction of District Judge in granting and revoking probates, etc.: (1) The District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his district. (2) Except in cases to which Section 57 applies, no Court in any local area beyond the limits of the towns of Calcutta, Madras and Bombay, shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters of administration until the State Government has, by a notification in the Official Gazette, authorized it so to do.” 16. In the case on hand, the testator is a Christian and therefore, sub- section (2) of Section 264 of the Indian Succession Act, 1925 cannot be made applicable. In which case, the application filed by the respondent before the District Judge, Ranga Reddy District at L.B.Nagar under Section 276 of the Indian Succession Act, 1925, is maintainable. 17. An element of solemnity is attached to the Will because it is the last testament of the testator and speaks from the death of testator. Therefore, when suspicious circumstances are alleged, every allegation cannot be treated as suspicious and if allegations are well founded, the Court has to subject the Will to a close scrutiny. In Jaswant Kour v. Amrit Kaur[7], the Supreme Court, inter alia, pointed out that when the disposition in the Will appears to be unnatural, improbable or inferior in the light of relevant circumstances and when propounder took prominent role in execution of Will and received substantial benefit that itself is treated as suspicious circumstance attending execution of Will. Here it may be mentioned that though in subsequent judgments, the Supreme Court held that mere exclusion of nearest relative from bequeath by itself does not render the Will suspicious, but in connection with attending circumstances, it would lead to suspicion. In Pinnaka Hanumantha Rao (died) per LR v. Garlapati Dhanalakshmi @ Andallu[8], this Court after referring the relevant law culled out various principles with regard to proof of Will and while doing so, summarized inter alia following circumstances which can be treated as suspicious: “The execution of the Will may be surrounded by suspicious circumstances like, -- a) The signature of the testator may be very shaky and doubtful or not appears to be his usual signature. b) The condition of the testator’s mind may be very feeble and debilitated. c) The dispositions made in the Will may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provision for the natural heirs without reasons. d) The dispositions may not appear to be the result of the testator’s free Will and mind. e) The propounder takes a prominent part in the execution of the Will conferring substantial benefit on him. f) The Testator used to sign blank papers. g) The Will did not see the light of the day for long. h) Incorrect recitals of essential facts. i) The unregistered Will challenged as forged comes from the custody of major beneficiary.” 18. PW.2 is one of the attestators of Ex.A2 Will. He testifies that on 26.12.1996 Charles Nicholas executed Will regarding his properties and terminal benefits while he was in sound disposing state of mind. He went to the house of Charles Nicholas on his own accord to extend Christmas greetings. For better appreciation, I may refer the relevant portion of his cross-examination, which reads as hereunder: “At that time all the family members were there. He was lying on the bed but talking with us without any suffering. As I have gone to his house on the next day of Christmas as I could not meet him on Christmas day, I extended Christmas greetings and hoped early recovery and also I said that I will pray to his early recovery. I was with him for about 10 or 15 minutes. While coming out from the room I talked with his family members and came away as I have some other work. I went to the house of Charles in evening hours around 5 P.M. I have just exchanged pleasantries members of the family and I did not talk anything any particular subject. I do not agree with the suggestion of learned counsel, but his family members were depending upon the income of Charles, the witness adds that on the other than Charles was depending on his family during early days of the life.” The evidence of PW.2 is crystal clear that Charles Nicholas was in sound disposing state of mind while executing the Will on 26.12.1996. Nothing is elicited in the cross-examination to shake his testimony. No circumstance is brought out in the cross-examination to discard his testimony. 19. PW.3 is an Advocate-Notary. He prepared a draft Will on the instructions of Charles Nicholas. He got it typed and read over and explained the contents to Charles Nicholas and thereupon Charles Nicholas admitted the contents and put his signatures and thumb marks before him on Ex.A2 Will. He testifies that two more attestors were present when Charles Nicholas put his signatures and thumb impressions on Ex.A2 Will. Though this witness is subjected to piercing cross-examination, no material is elicited to discredit his testimony. This witness is a respectable person and there is no reason for him to speak false. His testimony is trustworthy and therefore, implicit reliance can be placed on it. 20. Learned counsel appearing for the appellant by referring a discrepancy with regard to the timing of execution of Ex.A2 Will tries to categorize Ex.A2 Will is a document, which is shrouded with suspicious circumstances. 21. PW.3 stated in the cross-examination that as per the request of Charles Nicholas, he went to his house at about 1.00 P.M., prepared a draft Will on his instructions, read over the contents therein and handed over the draft Will for being typed and thereafter, Charles Nicholas sent some of his relatives and got the draft Will typed. PW.2 stated that he went to the house of Charles Nicholas on 26.12.1996 at about 5.00 P.M. By referring these two timings, learned counsel contended that there is no consistency in the evidence of PWs.2 and 3 with regard to the time of execution of the Will and therefore, the Will is to be discarded. I do not see any substance in his contention since PW.3 categorically stated that he prepared the draft Will after going to the house of Charles Nicholas at 1.00 P.M. and thereafter, Charles Nicholas got the draft Will typed through some of his relations. The typed Will is Ex.A2. It is not the evidence of PW.3 that Ex.A2 Will was typed at 1.00 P.M. The evidence of PW.3 is crystal clear that after his going to the house of Charles Nicholas, he prepared a draft Will on the instructions of Charles Nicholas and got it typed and thereupon, Charles Nicholas put his signatures and thumb marks. Therefore, there is no discrepancy with regard to the timing of Charles Nicholas signing or marking his thumb impressions on Ex.A2 Will. 22. Much emphasis has been laid that since Ex.A2 Will propounded by the respondent excludes the natural heir i.e. wife, it is to be said that it is shrouded with suspicious circumstances and as the respondent failed to dispel such circumstances, Ex.A2 Will is liable to be discarded. 23. RW.1 is the wife of Charles Nicholas. Indisputably, Charles Nicholas suffered from various ailments such as Cancer, renal problem etc. He was admitted to NIMS hospital for treatment. The marriage between RW.1 and Charles Nicholas was performed on 11.01.1982. By the date of the marriage, RW.1 was working in Mysore. Though she claims that she came over to Hyderabad and stayed with Charles Nicholas, she did not place any material on record to substantiate the same. She did not even attend on Charles Nicholas while he was undergoing treatment in the NIMS hospital. He was residing with his elder brother, who is the respondent herein,