IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:01.07.2011 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI and THE HON'BLE MR. JUSTICE V.PERIYA KARUPPIAH O.S.A.NOS.110 AND 111 OF 2010 O.S.A.No.110 of 2010 N.Govindarajan ... Appellant Vs. 1.N.Leelavathy 2.S.Ramadevi 3.V.Maheswari 4.S.Vasanthi ... Respondents O.S.A.No.111 of 2010 N.Govindarajan ... Appellant Vs. 1.N.Leelavathy 2.S.Ramadevi ... Respondents Original Side Appeals filed under Order XXXVI Rule 1 of the Original Side Rules read with Clause 15 of the Letters Patent against the common Judgment dated 07.10.2009 made in T.O.S.No.43 of 2001 and Tr.C.S.No.899 of 2003 on the file of this Court. For Appellant in both Appeals : Mr.R.Madanagopaal For Respondents in both Appeals : Mr.N.Kannan COMMON JUDGMENT https://hcservices.ecourts.gov.in/hcservices/ R.BANUMATHI,J These appeals arise out of the common Judgment and decree in T.O.S.No.43 of 2001 and Tr.C.S.No.899 of 2003 dated 07.10.2009 whereby the learned single Judge dismissed the suit T.O.S.No.43 of 2001 filed by the Appellant-Plaintiff declining to grant probate in respect of the suit property described in the Will dated 24.05.1995 executed by deceased N.Krishnamurthy appointing the Appellant as executor of the Will. By the same Judgment, learned Judge decreed the suit Tr.C.S.No.899 of 2003 granting permanent injunction against the Appellant from alienating/encumbering the suit property. Plaintiff in T.O.S.No.43 of 2001 and Defendant in Tr.C.S.No.899 of 2003 is the Appellant herein. For convenience, the parties are referred as per their array in T.O.S.No.43 of 2001. 2. 1st Defendant-1st Respondent is the wife of deceased N.Krishnamurthy. Plaintiff-Appellant is the son and Defendants 2 to 4 and one Vijayalakshmi are the daughters of deceased N.Krishnamurthy. The genealogy of deceased N.Krishnamurthy is as under:- N.S.Naidu (died on 12.05.1982) | N.S.Krishnamurthy [died on 28.02.1997] ----------------------------------------------------------------------------- | | | | | | | N.Leelavathy N.Govindarajan S.Ramadevi V.Maheswari S.Vasanthi R.Vijayalakshmi (wife) (son) (daughter) (daughter) (daughter) (daughter) [R1] [Appellant] [R2] [R3] [R4] 3. The property bearing Door No.22/27, Krishna Rao street, T.Nagar, Chennai measuring an extent of 2 grounds and 1900 sq. ft. was purchased by deceased N.Krishnamurthy and his father N.S.Naidu under sale deed dated 05.12.1975. N.S.Naidu bequeathed his undivided half share infavour of Plaintiff under Will dated 01.02.1982 and the said Will was probated by the Plaintiff's father in O.P.No.200 of 1986 dated 23.4.1987. 4. Case of Plaintiff-Appellant is that his father deceased N.Krishnamurthy had executed his last Will and testament (Ex.P1) on 24.5.1995 at Chennai bequeathing his half share in the property bearing Door No.22/27, Krishna Rao street, T.Nagar, Chennai-17 infavour of Plaintiff. Plaintiff was appointed as executor under the Will dated 24.05.1995. Plaintiff being the executor of Ex.P1- Will has filed O.P.No.583 of 2001 for grant of probate. Defendants 1 and 2 filed Caveat and hence O.P.No.583 of 2001 was converted as T.O.S.No.43 of 2001. https://hcservices.ecourts.gov.in/hcservices/ 5. Case of Plaintiff is that as per the Will dated 24.5.1995 executed by deceased N.Krishnamurthy, Plaintiff is entitled to entire half share of N.Krishnamurthy. Defendants-Respondents have no right or title nor can lay any claim to 1/6th share each in the half undivided share of the suit property. Further case of Plaintiff- Appellant is that ground floor portion was let out to M/s.Jainsons on a monthly rent of Rs.15,000/- during the life time of his father and 1st Defendant-1st Respondent [mother of Plaintiff] was allowed to collect a sum of Rs.8,000/- per month from the tenant to meet out the family expenses during the life of deceased N.Krishnamurthy and the same has been continued after the life time of deceased N.Krishnamurthy. Plaintiff was collecting Rs.7000/- from the tenant. It is averred that 1st Defendant-Leelavathy who was living with the Plaintiff along with her first daughter [2nd Defendant-Ramadevi] has diverted the entire sum so collected to other persons over looking the interest of the family consisting of herself, her son and the unmarried daughter. From the rental income of Rs.7000/-, Plaintiff was paying the Corporation Tax, Water Tax, Urban Land Tax and make provision for water to the tenant and had to maintain his mother [1st Defendant] and his last sister, as a result of which, Plaintiff incurred huge debts. 6. Resisting T.O.S.No.43 of 2001, Defendants 1,2 and 4 have filed written statement contending that deceased N.Krishnamurthy never executed any Will infavour of Plaintiff bequeathing his half share of the suit property and the alleged Will dated 24.5.1995 is a forged one. Case of Respondents is that in order to deprive the share to the other legal heirs, Plaintiff has initiated probate proceedings after a lapse of 5 years. Case of Defendants is that since the suit property is the self acquired property of deceased N.Krishnamurthy, Defendants and Appellant being the legal heirs, they are entitled to 1/6th share each in respect of half share of the suit property. According to Defendants, the arrangement for collection of rent from the tenant was done for the survival of the 1st Defendant after she lost her husband. Further case of Defendants is that after the death of her husband, she continued to live in the suit property by collecting the rent from the tenant. According to Defendants, Plaintiff approached the tenant and demanded the entire rental income to be paid to him stating that the whole property belonged to him. 7. Alleging that Plaintiff is trying to alienate the undivided half share of the suit property to third parties, Defendants 1 and 2 have filed O.S.No.1523 of 2001 on the file of XIV Assistant Judge, City Civil Court, Chennai for permanent injunction restraining the Plaintiff-Appellant from alienating or encumbering the suit property without the knowledge and written consent of the Defendants 1 and 2. Later, the said suit was transferred to the file of this Court and re-numbered as Transferred C.S.No.899 of 2003 and tried along with https://hcservices.ecourts.gov.in/hcservices/ Testamentary suit. 8. On the above pleadings, the following Issues were framed by the learned Judge in both the suits:- T.O.S.No.43 of 2001:- 1)Whether the alleged Will dated 24.05.1995 is true and valid? 2)Whether the Will was prepared subsequent to the death of N.Krishnamoorthy? 3)Whether the Plaintiff is entitled to probate as sought for? 4)To what relief the Plaintiff is entitled? Tr.C.S.No.899 of 2003:- 1)Whether the Plaintiffs are entitled to injunction as prayed for in the plaint? 2)To what relief the Plaintiffs are entitled to? 9. Learned Judge has taken up both the suits together and common evidence was recorded in T.O.S.No.43 of 2001. Plaintiff- N.Govindarajan examined himself as PW1. K.Baskar [PW2], attestor of the Will filed proof-affidavit and was cross examined. Exs.P1 and P2 were marked. Proof affidavit of 1st Defendant-Leelavathy [DW1] filed and cross examined. Exs.D1 to D9 were marked. 10. Upon consideration of oral and documentary evidence, learned Judge expressed doubts about the trustworthiness of attestor PW2- Baskar. Learned Judge held that attestors to Ex.P1-Will, PW2-Baskar and Jalal are classmates and hostelmates and also friends of PW1- Govindarajan. Learned Judge held that Ex.P1-Will is surrounded by suspicious circumstances:- (a) Tampering of seal in Ex.P1-Will; (b) Delay in filing the Probate; (c) The recitals in sale deeds [Ex.D1 and D2]; (d) Incorrect recital in Ex.P5-Will; (e) Unnatural disposition; (f) The place where Ex.P1-Will has been executed; (g) The attestors are strangers, who are friends/classmates/hostelmates of PW1/propounder/beneficiary of the Will; (h) Attestation. Finding that suspicious circumstances are not dispelled and declining to grant probate, learned Judge dismissed T.O.S.No.43 of 2001 and decreed Tr.C.S.No.899 of 2003. 11. Challenging the impugned Judgment, Mr.R.Madhanagopaal, learned counsel for Appellant-Plaintiff contended that the learned Judge failed to note that Appellant-Plaintiff has complied with Sec.63 of Indian Succession Act and Sec.68 of Indian Evidence Act by examining the attestor PW2-Baskar. It was further submitted that the learned Judge erred in saying that the attestors are strangers, friends and classmates which creates suspicious. It was urged that the observation of the learned Judge regarding execution of Ex.P1- Will and the suspicious circumstances are not based on pleadings, evidence and attributing circumstances are in the nature of surmises. Learned counsel for Appellant-Plaintiff assailed the findings of learned Judge on each and every suspicious circumstance. https://hcservices.ecourts.gov.in/hcservices/ 12. Placing reliance upon 81 Law Weekly 80 [Andal Ammal, In re] and 2001 (2) CTC 744 [S.Thirunavukkarasu v. B.Kandasuamy Reddy and 2 others], Mr.N.Kannan, learned counsel for Respondents-Defendants 1 and 2 contended that execution of Ex.P1-Will has not been proved in accordance with the well settled principles. Taking us through the findings of learned Judge, learned counsel for Respondents submitted that as held by the learned Judge that many suspicious circumstances surrounding the Will have not been explained which militate against the genuineness of Ex.P1-Will. Drawing our attention to tampering and incorrect recitals in Ex.P1-Will, learned counsel for Respondents 1 and 2 reiterated the findings of the learned Judge. 13. Upon consideration of rival submissions and the impugned Judgment, the point falling for consideration is whether the learned Judge was right in finding that Ex.P1-Will is surrounded by suspicious circumstances and whether the learned judge was right in refusing to grant probate? Another point falling for our consideration is whether learned Judge was right in decreeing the suit for permanent injunction for the entire extent of property? 14. Section 63 of Indian Succession Act postulates the mode and manner in which proof and execution of a document, required by law is to be attested. As per the provisions of Sec.63 of Indian Succession Act, for the due execution of a Will - (1)the testator should sign or affix his mark to the Will; (2)the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a Will; (3)the Will should be attested by two or more witnesses, and (4)each of the said witnesses must have seen the testator signing or affixing his mark to the Will and each of them should sign the Will in the presence of the testator. 15. Section 68 of Indian Evidence Act lays down the mode and manner in which the execution of an unprivileged Will is to be proved. In unequivocal terms, Sec.68 states that the execution of the Will must be proved at least by one attesting witness. 16. The law is well settled that the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement prescribed in the case of a Will by Section 63 of Indian Succession Act. The law requires that the proof of execution of a Will has to be attested at least by two witnesses. At least one attesting witness has to be examined to prove the execution and attestation of the Will. Further, it is to be proved that the executant had signed and/or given his thumb https://hcservices.ecourts.gov.in/hcservices/ impression in the presence of at least two attesting witnesses and the attesting witnesses had put their signatures in the presence of executant. [See (2007) 5 MLJ 159 (SC), Benga Behera and another v. Braja Kishore Nanda and others; Madhukar D.Shende v. Tarabai Aba Shedage, AIR 2002 SC 637 : (2002) 2 SCC 85; Janki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761; Bhagatram v. Suresh and others, AIR 2004 SC 436 : (2003) 12 SCC 35]. 17. The burden of proof that the Will has been validly executed and is a genuine document, is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free Will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. Court granting Letters of Administration/Probate must satisfy itself not only about the genuineness of the Will, but also satisfy itself that it is not fraught with any suspicious circumstance. But the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. [See AIR 2007 SC 614 : 2007 (2) CTC 172, Niranjan Umesh Chandra Joshi v. Mridula Jyoti Rao and others; 2002 (1) CTC 244 : (2002) 2 SCC 85 : (2002) 1 MLJ 181, Madhukar D.Shende v. Tarabai Shedage and 2005 (1) CTC 443 : (2005) 8 SCC 784, Sridevi and others v. Jayaraja Shetty and others]. 18. Appellant-Plaintiff being the propounder of Ex.P1-Will has to prove the due execution of Ex.P1-Will. To prove the attestation of Ex.P1-Will, Appellant-Plaintiff examined PW2-Baskar. Since Appellant-Plaintiff advanced arguments assailing the findings of the learned Judge that Ex.P1-Will not proved to be valid, it is necessary for us to analyse the evidence at length adduced by the Appellant- Plaintiff and also various suspicious circumstances pointed out by the learned Judge. 19. In his chief examination/proof affidavit, PW2 has stated that he signed in Ex.P1-Will after the testator N.Krishnamurthy signed it in his presence and after PW2 signed as first witness, another witness by name Jalal who is also friend of Pws.1 and 2 signed in Ex.P1-Will as witness and that one Advocate has signed in Ex.P1-Will. PW2 further stated that he saw N.Krishnamurthy signing his name in Ex.P1-Will and only thereafter, PW2 and Jalal and Advocate have signed. PW2 has also stated that N.Krishnamurthy asked him to sign in the Will and after his signature Jalal also signed as a witness. PW2 is admittedly friend of Plaintiff and both of them studied together at Crescent School, Vandalur and also stayed together in the hostel. PW2 is stranger to testator; but friend/classmate of PW1 and his evidence is to be viewed with caution. https://hcservices.ecourts.gov.in/hcservices/ 20. In his chief examination, PW2 has stated about his signing in Ex.P1-Will. In the cross-examination when being questioned, PW2 was not in a position to say as to how many times N.Krishnamurthy signed in the document and stated that he had not noticed the same. PW2 would only state that when himself and Jalal went to N.Krishnamurthy's house, PW2 signed in only one page which is the signature found in the second page of Ex.P1-Will. PW2 is not in a position to state whether N.Krishnamurthy signed in the first page of Ex.P1-Will. As discussed infra, name "CHENNAI" in the seal of Advocate & Notary Public found in the first page of Ex.P1-Will has been erased. PW2 has not spoken anything about the erasing of name "CHENNAI" in the first page of Ex.P1-Will. 21. The law is well settled that the conscience of the Court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will. Execution of Will is a solemn act of the executant who must own up the recitals in the instrument and there must be clear evidence that he puts his signature in a document after knowing fully its contents. The executant of a document must, after fully understanding the contents and the tenor of the document put his signature or affix his thumb impression. In other words, the execution of the document does not mean merely signing, but signing by way of assent to the terms of the contract of alienation embodied in the document. 22. Holding that the propounder has to show that the testator at the relevant time was in a sound and disposing state of mind and that he understood the nature and effect of the dispositions, in 2007 (5) CTC 318 [J.Mathew (died) and others v. Leela Joseph], the Division Bench of this Court [one of us was a member – RBIJ] held as under:- "13. The mere fact that signature of a person is proved on a document does not necessarily mean that the person who has signed the document has done so after understanding the contents of the document. In our considered opinion, the expression "execution" does not merely means the signature, but means that the Executant or the person who puts the signature has done so after understanding the contents of the document. In other words, it has to be proved said that the hand which had signed the document was with the mind." 23. Propounder of the Will has to adduce such evidence that testator had put his signature after understanding the contents of the document. No convincing evidence is forthcoming as to whether testator N.Krishnamurthy has understood the recitals in Ex.P1-Will. That apart, absolutely there is no evidence as to who drafted Ex.P1- https://hcservices.ecourts.gov.in/hcservices/ Will and who dictated the recitals and who typed it. 24. The attestation of the Will is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attesting witness should put his signature on the Will animo attestandi. In the present case, no such evidence of animo attestandi is forthcoming. In his cross examination, PW2 has stated that " ..... he did not know that he was signing in the Will at all and only through Plaintiff, he came to know that he has signed in the Will". We may usefully refer to the evidence of PW2 which reads as under:- " ... As I did not know that Ex.P1 was a Will so I did not inform to the plaintiff. Late Krishnamoorthy also did not inform about the contents of Ex.P1 and he did not say it was a Will ..." As pointed out earlier, in his capacity as attestor, PW2 has spoken to about seeing the testator signing only in the second page of Ex.P1-Will. He has not stated that he saw the testator signing in all pages of Ex.P1-Will. Infirm evidence of PW2 coupled with the fact that he is friend of PW1, we are of the view that evidence of PW2 is not sufficient to satisfy the requirement of the provisions of Sec.63(c) of Indian Succession Act. 25. Placing reliance upon (2009) 4 SCC 780 [Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh and others], learned counsel for Appellant contended that to prove the Will, it is not necessary that two attesting witnesses should be examined and the learned Judge erred in doubting the trustworthiness of PW2 on peculiar reason that PW2 was classmate of Appellant-Plaintiff and that they studied in the same school. Under Sec.68 of Indian Evidence Act one of the requirement of due proof of a Will is that the propounder of the Will has to examine atleast one attesting witness. No doubt, it is not necessary that both the witnesses are to be examined. But as pointed out by the learned Judge, both PW2-Baskar and another attesting witness Jalal are friends of Plaintiff/Propounder of Ex.P1-Will. At the time when Ex.P1-Will was allegedly executed on 24.05.1995, PW2 was only aged 24 years and the testator was aged 55 years. Testator was doing film distribution business and also maintaining the Lodges and late N.Krishnamurthy was having friends of his own. Execution of Will being a solemn occasion, if at all deceased N.Krishnamurthy intended to execute the Will, he would have called his friends to attest the Will. In his evidence PW2 has stated that he attended the marriage of one of the sister of Plaintiff viz., Vijayalakshmi solemnised within one month after signing the Will. Curiously, PW2 did not inform the Plaintiff about the Will executed by his father nor informed him about his attestation in the Will. When Plaintiff and PW2 are close friends, it is quite improbable that he would have remained quite without informing the Plaintiff about the execution of Will. As held by the learned Judge, it is illogical to accept the https://hcservices.ecourts.gov.in/hcservices/ contention of Plaintiff that late N.Krishnamurthy bequeathed the property to his only son and that the attestors are son's friends. Learned Judge rightly expressed doubts about trustworthiness of PW2 and due execution of Ex.P1-Will. 26. Learned counsel for Respondents 1 and 2 contended that absolutely no evidence is forthcoming as to who drafted Ex.P1-Will and who typed it. Learned counsel would further contend that N.Krishnamurthy being a film distributor and who was also running Lodges, if really intended to execute the Will would have called his friends to attest the Will. In this regard, learned counsel for Respondents 1 and 2 placed reliance upon (1977) 1 SCC 369 [Smt. Jawant Kaur v. Smt.Amrit Kaur and others] wherein the Supreme Court held as under:- "No evidence has been led as to who drafted the will, it being in legal jargon and who typed it. Neither is the place of execution mentioned. The will also lacks in description of the extensive properties allegedly bequeathed to the defendant. The inclusion of strangers as attesting witnesses is intriguing. The utter improbability of the testator accosting two strangers for getting his will attested and the fundamental contradictions in their evidence render it impossible to hold that they attested the will at the instance of the testator as alleged. A man of importance that the testator was, he could not ever have left the validity of his will to depend on the umpredictable attitude of unknown elements. Non-disclosure of the existence of the will by the attesting witnesses confirms the suspicion. Again the non examination of the executors of the will raises further doubt. Since executors of a will are usually consulted, ignorance of the executors as to the existence of the will further makes it doubtful. Moreover the will is unnatural and unfair in ignoring the testator's other descendants then existing. No evidence has been led to support the reason for exclusion of the plaintiff wife from any benefit. It seems difficult to believe that a person in the position of the testator who was possessed of a large estate, would disinherit so many of his near relatives including his wife and shower his bounty on the grandson, to the exclusion of everyone else. These circumstances are sufficient to discard the will. The defendant failed to discharge the heavy onus which lay on him of explaining the suspicious circumstances surrounding the execution of the will and of establishing that the document which he propounded was the last will and testament of his grandfather." 27. The ratio of the above decision squarely applies to the case on hand. Even though, Thiru.V.Subramanian, Advocate & Notary Public https://hcservices.ecourts.gov.in/hcservices/ is said to have affixed his seal, absolutely, there is no evidence as to who drafted the Will and who typed it. As rightly contended by the learned counsel for Respondents 1 and 2, late N.Krishnamurthy being a man of knowledge would have called his family members and friends to execute the Will. It is not as if the execution of Will and probate proceedings are strange to N.Krishnamurthy. Earlier, for obtaining probate of the Will dated 01.02.1981 executed by N.S.Naidu bequeathing 50% of the suit property infavour of Plaintiff, the Plaintiff's father N.Krishnamurthy filed O.P.No.200 of 1986 and obtained probate on 23.04.1987. While so, it is quite unbelievable that N.Krishnamurthy would have chosen to execute Ex.P1-Will secretly by calling friends of his son as attestors. 28. As regards due execution of the Will by the testator, the conscience of the Court has to be satisfied by the propounder of the Will by adducing evidence so as to dispel any suspicion or unnatural circumstances attaching to the Will. Law is well settled that if there are suspicious circumstances surrounding the Will, it is the duty of the person who propounds the Will to dispel such suspicious circumstance. In AIR 1959 SC 443 [H.Venkatachala Iyengar v. B.N.Thimmajamma and others], the Supreme Court has held that where the propounder was unable to dispel the suspicious circumstances, which have surrounded the question of valid execution of Attestation of the Will, no Letters of Administration infavour of the propounder could be granted. 29. Elaborating as to what are the suspicious circumstances, in AIR 2007 SC 614 [Niranjan Umesh Chandra Joshi v. Mridula Jyoti Rao], the Supreme Court has held as under:- "33.