IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 01.03.2011 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU T.O.S.No.1 of 2001 M.Shyamsundar ... Petitioner vs. 1.M.Rangaprakash 2.M.Venkatakrishnan 3.Leela M.Venkatakrishnan ... Respondents This Testamentary Original Suit is filed under Sections 222 and 276 of the Indian Succession Act XXXIX of 1925, for the grant of Probate. For Plaintiff : Mr.B.T.Seshadri for M/s.K.Bhanumathi For Defendants : Mr.V.R.Karthikeyan JUDGMENT Testamentary Original Suit is filed for grant of probate of the Will executed by one Mrs.M. Nirmala. 2. The following are the allegations contained in O.P.No.251 of 1996, subsequently converted to T.O.S.No.1 of 2001. 2[a] The petitioner is the third son of late M.Nirmala who appointed the petitioner as the executor of the Will which she had executed on 17.03.1993 while in sound and disposing state of mind in the presence of witnesses. It is her last Will and testament executed at Madras. She left behind her three sons, the first and second respondent herein and the petitioner. The third respondent herein is the foster daughter of M.Nirmala. There are no other legal heirs apart from her three sons mentioned above. The amount of assets which are likely to come into the hands of the petitioner does not exceed a sum of Rs.13,02,243/- , an account of which is given in Annexure 'A' attached to the petition. The amount of liabilities and other lawful deductions of the testator is Rs.1,500/- are shown in Annexure 'B'. No application has been made to any District Court on delegate or to any High Court for probate of any Will of the deceased or letters of administration with or without the Will annexed to the property and credits. 2[b] The petitioner undertakes to duly administer the property and credits of the said M.Nirmala by paying out the debts and the legacies therein bequeathed so far as the assets will extend and to make a full and true inventory thereof and exhibit the same in this Court a true account of the said properties and credits within one year from the said date. Hence, it is prayed for probate of the Will to be granted to him. 3. The following are the allegations in brief contained in the counter filed by the second respondent. 3[a] M.Nirmala died at Chennai on 08.06.1994. The will placed for probate is not a genuine one and that M.Nirmala was a patient for a pretty long time and was totally bed ridden; that she was suffering from oral cancer during her last four years and she died of it; that she was also suffering from nervous disability from the year 1973 and that the Will registered on 17.03.1993 cannot be said to have been executed in a sound state of mind and with full consciousness. His mother was very affectionate towards him and even after marriage, he was living with his wife in the joint family; that since his wife was the only daughter to her parents and that her parents became ill and there was nobody to look after them, out of humanitarian consideration, he had to live with them; that he was visiting his mother, alongwith his wife very often and was even helping for her treatment and that he went out of the house after quarreling with his mother is utter false and that it is only his brothers who were always quarreling with him and have been very avaricious. 3[b] Mrs.M.Nimala could not have omitted him in bequeathing her properties and that no mother will exclude one child, while bequeathing her properties; that as per the Will, one share has been provided to the third respondent, who is the foster daughter of M.Nirmala and he had been omitted and this does not have any logic and cannot be accepted at all; that the Will is not a genuine one and on the date of execution and registration of the same, his mother M.Nirmala was not at all in sound mind and in good conscience and that the Will is not valid in law and further it can be seen from the Will that the testatrix was ill and bed ridden for more than 20 years. 3[c] The Will has not at all been drafted or instructed by M.Nirmala and that the Will has been prepared by some one else, got signed by M.Nirmala while she was not in good conscious and in a state of unsound mind and registered in her name. The attesting witnesses to the said Will are only close friends of the petitioner herein which also would clearly prove that the Will is not a genuine one and that the petition for probate of the alleged Will deserves to be dismissed being bereft of any genuineness. 4. In the reply statement filed by the petitioner, it is alleged as follows - 4[a] The allegations that M.Nirmala was very affectionate with the second respondent and that they were in good terms and relationship is absolutely false and that his mother was bed ridden for more than 20 years; that the second respondent left family in November 1980 and after he left the family he had never visited the deceased or any respondents as well. After the second respondent left the family, her mother had no desire even to talk to the second respondent and that her mother also executed the Will wherein she had given an expression to the agony caused to her by the Second respondent and that after the second respondent left the family, he filed a suit in C.S.No.691 of 1982 for partition and separate possession. In that suit, since the deceased was not able to walk, she was examined by an Advocate Commissioner appointed by this Court and hence the allegation that the second respondent and the deceased were in good terms and relationship is absolutely false. 4[b] The averment that the signature found in the Will alleged to be executed by M.Nirmala appears that the testatrix should have been forced to sign the said testament is absolutely false, baseless, besides being unwarranted and that the deceased signed the Will in the presence of Sub Registrar who came to the petitioner's residence where the deceased was living, to register the Will; that there is no coercion for the deceased to sign the Will; that since the second respondent caused immense mental agony to the deceased which the deceased has clearly expressed in the Will, the deceased has not bequeathed the property to the second respondent and that in the property viz. No.19, Sambasivan Street, T.Nagar, Chennai  600 017, life interest has been given by the deceased to him and the first respondent and after their life time, the children of the petitioner and the first respondent will get absolute right over the said property; that it is true that the deceased was having nervous disability during the year 1973 but it it false to state that it is not possible for her to identify the person before her and hence the petitioner would have got the signature of the testatrix either by force or threat or taking advantage of her unsound mind and that the Will executed by the deceased M.Nirmala is perfectly valid and was executed when she was in sound and disposing state of mind. 4[c] It is denied that the testatrix was not in sound disposing state of mind at the time of passing the preliminary decree and that the deceased was examined on Commission and she has answered all the questions put to her by the second respondent; that the Will was executed by the deceased Nirmala out of her own free will and while she was in sound and disposing state of mind and that it is false to state that the petitioner has somehow managed to get the signature of his mother and is trying to get the entire property of the second respondent; that the second respondent, not content with the fact that he has already caused agony to his mother during her lifetime has come forward with the false, frivolous and vexatious allegations knowing them to be false only with the ulterior motive of harassing the petitioner and others. 5. The following issues were framed for trial. [i] Whether the testatrix was in a state of unsound mind at the time of execution of the Will dated 27.03.1993 ? [ii] Whether the Will dated 17.03.1993 is true and valid ? [iii] To what other reliefs the plaintiff is entitled for ? 6. ISSUE NOS. 1 & 2 6[a] Ex.P2 is the registered Will written in Telugu language on 17.03.1993 executed by the deceased M.Nirmala. In the Will, she has stated that it is her last Will and testament, that she was sick and bed ridden for the past twenty years and was 65 years at the time of execution of the Will, that though she was physically weak, she executed the Will with the sound state of mind and with self consciousness. She bequeathed her properties absolutely belonged to her which have been enlisted in the Will. She directs 'A' schedule house in Door No.19, Sambasiva Street, T. Nagar, Madras  600 017 to be taken by the petitioner and the first respondent for enjoying the same throughout their life time and after their lifetime, it shall devolve upon the children of both. In 'B' Schedule property, she got 1/4th undivided share which she bequeathed in favour of the third respondent and she also directed that the third respondent shall not have any right in other properties. 6[b] The deceased M.Nirmala has directed Item No.1 to 3 in 'C' Schedule property in which she had got 1/4th undivided share to go to the petitioner and the first respondent in equal shares with absolute rights. She has also mentioned in the Will that her jewels, silver wares, furniture and utensils to go to the petitioner and the first respondent. Out of her jewels, three sovereigns shall be given to her younger sister Sudhamani. 6[c] The deceased M.Nirmala has graphically narrated the circumstances upon which she excluded her another son, the second respondent herein. She has stated in the Will that the second respondent and his wife picked up quarrel with her and left the house causing her much pain and suffering, that apart, he filed a case against her in C.S.No.691 of 1992 in High Court, Madras for partition of the house and the remaining movable and immovable properties. The Court decided that she is the exclusive owner of the house in Door No.19, Sambasiva Street, T. Nagar, Madras  600 017 and others have no manner of right over the same. By virtue of the decree, she got 1/4th share in the remaining movable and immovable properties. She has further provided that before the second respondent left the house, she had given him a pair of bangles studded with diamonds, ear rings studded with red stones, two rings with red stones, one ring studded with three diamonds, black beads chain and an ordinary chain. She has also gave a dollar chain to his daughter and a chain to his son, that he, besides leaving the house picked up quarrel with her and hurt her feelings causing her trouble dragging her to the court and so she did not want to give him anything from her property and she decided to be firm in this regard. 6[d] Ex.P1 is the death certificate issued by the Corporation of Madras evidencing the death of M.Nirmala on 08.06.1994 at Hande Hospital, Chennai. Exs.P3 and P4 are the consent affidavits filed by the first and third respondents stating that both of them have absolutely no objection for granting probate of the Will in favour of the petitioner. Ex.P5 is the affidavit of P.Rajkumar filed alongwith OP in which he has affirmed that he attested the Will executed by M.Nirmala and one S.G.Parthasarathy also attested to it, that the Will was prepared in Telugu language and at the request of Nirmala, both of them attested the Will and the said Nirmala also put her signature in his presence. He was brought to the witness box as PW2. He says about the fact of attestation of the Will. PW2, while referring to the Will, in his proof affidavit has stated that himself and S.G.Parthasarathy saw Nirmala's signing at the end of the Will executed by her in Telugu language and at the request of Nirmala, himself and S.G.Parthasarathy subscribed their signatures as witnesses in the Will and that she was in sound and disposing state of memory and understanding and executed the Will of her free will and pleasure. He denies the suggestion that he and testatrix are close relatives. He also denied the suggestion that he did not sign as a witness in Ex.P2 and he did not know the contents of Ex.P2. Excepting the above said queries, there is no questions put to him as to the physical and mental fitness of the testatrix. 6[e] P.W.3 is an Advocate by name S.Shyamala who claims to have written the Will. She has deposed that at the instruction of Nirmala, she drafted the Will in Telugu language and that Nirmala was bed ridden; that she did not know which hand was working, that she was speaking very well and she had a very good memory. In her cross examination, she states that Nirmala was in lying position as if in a easychair position, supported by two or three pillows, that when she met Nirmala, she was not in a position to move anywhere but her one hand was moving, that she did not remember because of long years which hand alone moved and that she did not know who has signed as witnesses in the Ex.P2. Significant, it is to state that no question was put to her as to the mental fitness of M.Nirmala. As far as the physical fitness of the testatrix is concerned, the evidence of both P.W2 and 3 are satisfactory to the Court. It is desirable that due to old age, she was bed ridden and there is nothing to suggest that her mental faculties were not functioning properly. 6[f] As regards the physical fitness, PW1, in his cross examination has stated that it is not correct to state that his mother had mouth cancer but had only a wound in her mouth, that he did not take the wound in her mouth as a serious problem. He has denied the suggestion that his mother could not speak fluently and had stammering due to her wound in the mouth. He also denied the suggestion that the Will was not executed by his mother voluntarily out of her own will. He has further stated that though his mother was unable to walk, she was otherwise healthy and aware of what she was doing, that since she was having heart ailment, she was admitted to Hande Hospital in Chennai, that he has not produced any document to show that his mother was admitted to that hospital for heart ailment and that she was inpatient for about ten days before her death. 6[g] The Doctor, DW3 from Hande Hospital, Chennai was brought to witness box at the bequest of the second respondent. He says that when they shifted the records, some case history of patients were missing, that he is unable to say whether Nirmala was treated in his hospital. He also deposes that without the case history of the patients, he cannot say anything on the treatment given to her. Ex.P1, death certificate would show that she died in Dr.Hande hospital. It transpires that before her death, she was given treatment in that hospital. 6[h] DW1, the second respondent would vouchsafe the allegations in his counter. He says that his mother was not talking and thinking properly. In his cross examination, he says that his family members were not cordial and his mother also not cordial to him and he alone went to see his mother. This part of evidence would bolster the reason assigned by the testatrix in the Will for his exclusion. He admits that after 1982, he had no occasion to see what was the state of mind and health of his mother. If so, the pleadings that the testatrix was not physically and mentally fit at the time of execution of the Will is not supported by directive knowledge of the second respondent. 6[i] D.W.2 is the brother of the deceased Nirmala. He would say that Nirmala was not healthy at the time of her death, that she was suffering from cancer and bed ridden, that she was not able to move and take care of her routine work, that she was not taking food with her own hands because she had difficulty in using her hands, that she was not able to move her right hand and she can use the left hand alone, that she could not write or sign with her right hand and that she was bed ridden like a vegetable. 6[j] From the above oral evidence of DW3, it comes to light that though the testatrix was bed ridden and was ailing to some extent, she was physically and mentally fit to execute the Will and sign the Will. The oral testimony of PW2 would indicate that he and the other attestor S.G.Parthasarathy saw testatrix putting her signature and she had seen both of them laying their signatures as attestors to the Will. There is no evidence forthcoming on the side of the second respondent to show that the right hand of the testatrix was not functioning and she could not write or sign with her right hand. She was in a sound and disposing state of mind during the execution of the Will. 7. The learned counsel for the second respondent Mr.V.R.Karthikeyan would strenuously contend that the circumstances surrounding the execution of the Will would show that the propounder, namely the petitioner took active part in the execution of the Will which would throw suspicion on the execution of the Will. But it is well settled legal position that mere presence of the propounder in the place of execution of the Will would not be a proof to conclude that the execution of the Will is surrounded with suspicion. Worthwhile, it is to note that in the cross examination of PW1, he was not quizzed to the effect that he was physically present in the place of execution and registration of the Will. From the evidence, it is not known whether PW1 was present during the execution and registration of the Will. 8. The learned counsel for the second respondent places reliance upon a decision of the Hon'ble Supreme Court reported in AIR 2009 SC 1766 [Bharpur Singh v. Shamsher Singh] wherein Their Lordships have enumerated various circumstances which could be treated to be suspicious circumstances. The following is the operative portion of the judgment - 17. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will : i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time. iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reasons. iv. The dispositions may not appear to be the result of the testator's free will and mind. v. The propounder takes a prominent part in the execution of the Will. vi. The Will did not see the light of the day for long. vii. Incorrect recitals of essential facts. 18. The circumstances narrated herein before are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the Will had duly been proved or not. 9. In Para 13 of the above Judgment, earlier case in 2006 (14) Scale 186 [Niranjan Umeshchandra Joshi vs. Mrudulla Jyoti Rao & Ors. has been referred and a portion is culled out as follows - 34. There are several circumstances which would have been held to be described (sic) by this Court as suspicious circumstances : (i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will ; (ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances; (iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benfit. [ See H.Venkatachala Iyengar v. B.N.Thimmajamma and Ors. AIR 1959 SC 443 and Management Committee T.K.Ghosh's Academy v. T.C. Palit and Ors. AIR 1974 SC 1495] 10. In 2009 (3) CTC 801 [Premavathi v. Sundararajan] , a Division Bench of this Court has held that mere fact that natural heirs have not been given due share would not lead to existence of suspicious circumstance. In the said case, the propounders were found to have taken active part in the execution of the alleged Will and its attestation which suspicion is not clear with sufficient reasoning. As adverted to supra, this circumstance does not prevail in this case. In 2009 (3) CTC 503 [P.R.Vijayarangam v. P.R.Ramanujam] also, it is held that active participation of the propounder alone is not suspicious circumstance but the other facts would contribute to throw serious doubts about the due execution and attestation and registration of the Will. In the said case, it was in evidence that the testatrix was afflicted by mortal disease viz. Cancer. It was observed that to quell the rithing pain on account of cancer attack, seductives would have been freely used. It is held therein that the sound and disposing state of mind in such a volatile health profile of the testatrix is found to be highly suspicious. Coming to the facts of the present case on hand, except the ipsi dixit of the second respondent, no medical evidence is emerging to prove that the testatrix was suffering from mouth cancer. Wound in the mouth as mentioned by PW1 is entirely different from mouth cancer. Pertinent it is to state that the second respondent has not whispered anything in his counter as to the alleged mouth cancer of his mother nor had he deposed in his evidence as regards this malady. 11. In AIR 2009 SC 951 [ K.Laxmanan v. Thekkayil Padmini] , the Hon'ble Supreme Court has observed that when the testator was suffering from serious physical ailments and was not mentally in a good state of mind, the propounder was unable to examine scribe and attesting witness as scribe and attesting witness was dead and other was medically unfit, the witness examined by propounder was silent about execution and attestation of the Will, the Will has to be held as not proved. The facts in this present case are distinguishable. Here, PW2, the attestor and PW3, the scribe would say that the testatrix was physically and mentally fit. There is no contra evidence on the side of the second respondent to establish his contention. 12. The learned counsel for the second respondent would assail the case of the petitioner by stating that the Will is quite unnatural and a suspicion would emerge since there is exclusion of one of the natural heirs namely the second respondent in the Will and hence it could not be upheld. In support of his contention, he garnered support from a decision of the Apex Court reported in 2010 (5) CTC 364 [S.R.Srinavasa v. S.Padmavathamma] in which it is held that disinheritance of natural heir will have to be considered by the Court while appreciating the evidence for execution of the Will. The testatrix, in the present case has expressed in detail the reasons for exclusion of the second respondent. She has recited that the