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 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 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 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; 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 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.
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 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 evidence available to the effect that P.W.1 has deliberately with-held or suppressed the original Will. The certified copy of the registered Will, Ex.P.2 was marked. It is settled law that if the propounder establishes the loss of the original Will beyond doubt, the secondary evidence, inter alia, could be led by production of certified copy given in terms of the provisions of the Indian Registration Act. (Benga Behera v. Braja Kishore Nanda, (2007) 5 MLJ 159 SC).
24. The act of the plaintiff marrying a foreigner has been put against the execution of Will bequeathing property to P.W.1. P.W.1 has admitted in her evidence that she got married to Cochran, an American citizen in the year 1983; and that the testatrix did not approve her marriage with the American initially and she got over the same after two years. In fact, she deposed that when the testatrix came to Tirupathi, after surgery, it was her husband who attended her and the testatrix was greatly impressed with him and she said that he looked upon her as more than her sons. This marriage of P.W.1, admittedly took place in the year 1983, after the execution of the Will, Ex.P.2 on 11.01.1982. If the testatrix was not willing to give the property to the plaintiff who married a foreigner, she would have cancelled the Will, but till her death in the year 1991, the Will, Ex.P2 remained unaltered and in tact. Hence, the marriage of P.W.1 with the foreigner cannot have any bearing on the Will, which has been executed well prior to her marriage.
25. The other contention on the side of the defendants is that the Will is a forged one. The second defendant, after 1= years of filing the original written statement, has filed an additional written statement wherein the Will has been characterised as forged one. None of the other defendants have alleged forgery. In order to buttress this point, the non production of the original Will has been pointed out. In the earlier paragraphs, we have discussed the evidence and accepted and concluded that P.W.1 has established beyond doubt about the loss of the original Will. The certified copy of the Will has been marked as Ex.P.2. The Will is a registered one. The registration has been spoken to by P.Ws.1 and 3. In addition to that the Sub Registrar has also spoken to about it as P.W.4.
26. P.W.1 has denied the suggestion made that Ex.P2 is a forged one by saying that the Will is not a forged one. She deposed - "I saw my mother signing the document. The original Will was never in my possession." The signature in the xerox copy of the Will, Ex.P.7 and the signature of the testatrix in her admitted letter, Ex.P.8 are one and the same. DW1 the wife of the second defendant has stated that there is some difference in the letter K. However, she admitted that the signature in Ex.P.8 is that of her mother-in-law. Except the oral evidence disputing the initial K, without any corroboration or material, there is nothing on record to prove the contention that the signature of the testatrix in the Will, Ex.P.2 is a forged one. 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. For rejecting this evidence, nothing was put forth for consideration.
27. The defendants' counsel pointed out an another suspicious circumstance surrounding the Will, i.e., P.W.3, who is a close friend of P.W.1 was preferred to be the witness of the second Will, Ex.P.2, whereas, in the first Will, Ex.P.1 the witnesses were the neighbours of the testatrix. Fearing that the treachery of P.W.1 may come out at any stage from the neighbours, P.W.3 has been brought in as a witness in the second Will, Ex.P.2. Further, the another witness of the second Will, Ex.P.2 Seetha Padmanabhan, who is a neighbour of the testatrix was not examined before the Court.
28. It is on evidence of P.Ws.1 and 3 that P.W.3 is a colleague of P.W.1 since 1966 and she is known to and knowing all the family members of the testatrix. It is spoken to by P.W.3 in her evidence that not only the testatrix, but also her sons used to go to her place at Tirupathi and stay with her in her house. Likewise, it is also spoken to by her that she is known to the family from 1966. P.W.3 used to visit the testatrix at Chennai and she also visited P.W.1's brother at Delhi. Whenever she goes to Madras to see her sister and others, she used to call on the testatrix. She knows the family members of the testatrix including the defendants-sons and their respective wives, which factums have never been denied by the defendants, rather admitted by D.W.2. From the above evidence, it is evident that P.W.3 is a well known friend of all the family members of the testatrix. Calling her to attest the Will could not be regarded as a suspicious circumstance. In the absence of any change in the bequeathment and the beneficiaries, and in the light of the valid reason adduced for execution of the second Will, Ex.P2, the contention of treachery has to be rejected. Seetha Padmanabhan was not examined for the reason that she had become very old, aged about 80 years and she was very fragile and she could hardly walk. This explanation in the evidence of P.W.1 has not been disproved or demolished in the cross examination. The legal requirement is that one attesting witness has to be examined. In this case, the family friend of the testatrix, P.W.3 has been examined to fulfil the legal requirement. The non examination of Seetha Padmanabhan has also been properly explained.
29. The next ground of attack on the Will, Ex.P2 is that the testatrix was not an educated lady and she knows only to sign her name in English. But, the Will has been drafted in English. Here again, though much was concentrated in the evidence, as well as argued about her knowledge in English, the other factum of preparation of the first Will, Ex.P.1 stated by P.W.2 has been totally eschewed from consideration for whatever reason. P.W.2, the grand daughter has spoken to about how the first Will dated 28.12.1981 came to be executed. In December 1981, when she was at Madras, the testatrix directed P.W.2 to consult the lawyer one Babu, who was residing opposite to the house of the testatrix regarding executing a Will. After consultation, P.W.2 and the testatrix went to the house of one Chakrapani, a friend and neighbour of the testatrix and the testatrix informed him that she wanted to execute the Will, but did not want the Will to be prepared by that advocate living nearer to her house. Therefore, on the advice of Chakrapani, P.W.2 and the testatrix went to one Mr.Narayanan, advocate at T.Nagar. After preparing the Will, on the advice of Narayanan, the testatrix took Chakrapani and Sriram to the Sub Registrar's office. The witnesses identified the testatrix. The testatrix signed the Will. The witness also signed. She further deposed to the effect that during her next visit in August 1982, the testatrix informed that she had executed another Will, Ex.P.2, as the first Will dated 28.12.1981 contained mistake that the testatrix had four living sons instead of five. There is no dispute that there is no difference in the two Wills. The only difference in the second Will from that of the first Will is that the number of living sons is stated as five instead of four. The preparation of the Will, Ex.P.1 has been properly explained by P.W.2 and Ex.P.2 is the reproduction of Ex.P.1 with correction as to the number of living sons the testatrix had. Hence, the Will in English cannot be regarded as a suspicious circumstance to disbelieve the Will.
30. The non information of the execution of the Wills by the mother to the sons has been taken as one of the suspicious circumstance. When the testatrix did not want the Will to be prepared by the advocate residing nearer to her house, that implies the intention of the testatrix to keep the execution of the Will secret. It is the privilege and right of the testator/testatrix to keep his/her Will secret, if he/she so desires. Executing a Will and not disclosing the factum to others cannot be treated as a suspicious circumstance in the context of the facts of the case.
31. It is the contention of the defendants-sons that they were very cordial and dear to the testatrix and the intention of the testatrix was that all the legal heirs should share the property in equal proportion, which was manifest from Ex.P8 letter and that there was no ground made out to deviate from the line of succession.
32. Much was argued with reference to letter Ex.P.8. The learned single Judge has also relied on the letter to approve the argument of the defendant. In order to have a clear understanding as to what the letter conveys, we are of the view that the letter has to be extracted so as to enable us to consider the same in its right perspective :
Father loved the family. One sister and a grand uncle and Achuthamma were his relations. He also had other relations. He used to help them. He helped my brother. My brother also know it. I know that father owed you money. He had kept a proper account. I am sending you photo copy of a statement. Father had said that an excess amount of Rs.6000/- has been included in your account. You must give me the account of the money you have spend during father's funeral and for the Delhi trip. At the time of partition it will be accounted.
The Kodambakkam land and house are in the name of you all. Tambaram house is in father's name. Males and females have equal rights. Mambalam house is in my name. I will stay in this house until my death. If I want to sell it I will do so. Keeping this in mind you must partition what all there without any difference, at the earliest. This is my special advice. If you go to Court there will not be any money left. I have said all that I have to say. I am the mother of all of you who brought you up. You should not make me sad in my old age. With this I am stopping this letter."
Thangamani is the pet name of the first defendant, as deposed by P.W.1 in her evidence.
33. The language used in the letter would help us to construe the real intention of the author of the letter. The language is the conveyance or medium in which thoughts and ideas are transmitted from one to another. The multiplicity of thoughts and complexity of ideas in modern times necessitate either a startling increase in the coinage of words, or the giving to existing words many meanings, such as primary or secondary, general or specified, popular or technical. (vide P.Ramanatha Aiyar's Advanced Law Lexicon - 3rd Edition 2005). Any means of conveying or communicating ideas; specifically, human speech, or the expression of ideas by written characters or by means of sign language. The letter, or grammatical import, of a document or instrument, as distinguished from its spirit; as "the language of the statute. (Vide Black's Law Dictionary - 5th Edition). The letter has to be construed with reference to its object and the whole of its terms. The whole context must be considered to ascertain the intention of the parties. It is an accepted principles of construction that the sense and meaning of the parties in any particular part of instrument may be collected, "ex antecedentribus at consequentibus" every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if that is possible. (Vide Provash Chandra Dalul v. Biswanath Banerjee, AIR 1989 SC 1834). The maxim "ex antecedentribus at consequentibus" means a passage is best interpreted by reference to what precedes and what follows it.
34. By taking clue from the above well recognised construction of a letter, let us now consider what the letter of the testatrix dated 10.12.1981 written to her son conveys.
35. The tenor of the letter, in our considered view, does not reflect her intention that the property bequeathed should be shared equally among the legal heirs, as contended. The letter is rather manifestation of pain and anguish about the attitude or the way in which the sons were behaving. There is no surprise in a mother writing a letter to her son. The meaning underlying the language employed in the letter expresses so many stories. The letter starts, "I wanted to write to you some days ago. Read this letter keeping your father in your mind. Your father worked very hard, gone through lot of difficulties, made little money. He has not cheated any one nor taken any bribe. This is the truth."
It is not as if the sons were not aware of the father's way of leading life. When a mother at her old-age writes a letter with these words, reminding the way of life of their father, that would indicate that the sons are not behaving in the proper way in which they are expected to behave. The further wordings of the letter makes it amply clear that the mother was asking her son to send the details about the expenses he incurred for the funeral of the father for settling the same to him, by stating, "I know that father owed you money. He had kept a proper account. I am sending you photo copy of a statement. Father had said that an excess amount of Rs.6000/- has been included in your account. You must give me the account of the money you have spend during father's funeral and for the Delhi trip. At the time of partition it will be accounted." If the relationship of the sons with the mother or for that matter with the family is so cordial, as claimed by the defendants, there is no need for the mother to ask the details of the amount spent by a son for his father's funeral, as it is his obligation, pious or otherwise to perform the funeral of the father. The sentences impliedly express that there is no cordial relationship with the sons in money dealings for long number of years which could be gathered from the fact the father died in the year 1975, whereas the letter was written in the year 1981.
36. The next paragraph of that letter, which was much relied on to project the intention of the testatrix to the effect that the properties have to be shared in equal proportion reads, "The Kodambakkam land and house are in the name of you all. Tambaram house is in father's name. Males and females have equal rights. Mambalam house is in my name. I will stay in this house until my death. If I want to sell it I will do so. The above sentences have been construed to mean by the learned trial Judge that the testatrix wanted that all the properties should be partitioned equally among the heirs including the Mambalam house.
37. Here again, we are not able to concur with the argument of the learned counsel for the defendants as well with the view of the learned single Judge. The letter clearly states that the Kodambakkam land and house are in the name of all the children. Tambaram house was in father's name, who was no more. Those properties have to be divided among the sons, daughter and grand daughter. The Mambalam property has not been included in the above said property for partition. In respect of the Mambalam house, which was in her name, she asserts her right to stay till her life time and she would also further assert her right of disposal by saying that she would sell it if she wishes to. By this, she makes it clear that she would deal with the Mambalam property according to her wish. The further sentences in the letter - "Keeping this in mind you must partition what all there without any difference, at the earliest. This is my special advice. If you go to Court there will not be any money left. I have said all that I have to say. I am the mother of all of you who brought you up. You should not make me sad in my old age. With this I am stopping this letter" - indicate that there was some difference of opinion in sharing the properties with some glimmering intention to move the Court by the sons. But for, such an apprehension of such move, there is no need for the old mother to write to the son to the effect that if he goes to Court there would not be anything left. It otherwise would mean to say, 'Do not go to Court". The warning so made by the mother has become true as the defendants have filed a suit for partition. The concluding sentence that 'she had said all that she have to say', would, in the context of the letter, mean that the mother expressed her intention for amicable partition without going to Court, but left the decision to the son by cautioning or reminding that she is the mother of all and she should not be made sad at her old age. By writing so, she abruptly stopped the letter with that, even without conveying the usual blessing or at least the usual courtesy a mother would end a letter, like, 'your loving mother', etc. If the Mambalam property is to be shared in partition, there is no requirement for the testatrix to assert that she would stay in the house till her death. So, the only conclusion that could be reached from the letter is that the Mambalm property has been carved out from the properties which have to be partitioned equally.
38. The other contention that the line of succession is deviated is also raised, in our view, for the sake of rejection. There is absolutely no embargo in the testamentary jurisdiction while writing a Will the line of succession should not be disturbed. The very purpose of writing a Will is only to deviate from the line of succession. The reasons for deviating from the line of succession are stated in the Will itself. In the recital of the Will, in the first paragraph, the testatrix has said that the sons are well settled. That part of the recital is taken advantage by the defendants by contending that the daughter is also well settled and hence there is no ground for deviation from the line of succession. The first paragraph of the Will reads :
" 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."
The recital, by itself, would amply make it clear that the sons are well settled, which factum has been admitted by D.W.1 in her cross examination. The recital also manifests that the testatrix wants to deviate from the line of succession and the reasons are stated by her for doing so.
39. Some exception has been pointed out in the judgment of the learned single Judge about the discrepancies about the place of execution of the Will with reference the Original Petition, filed for issuance of probate. We are not able to approve the same. The Original Petition has been filed in Form 55 under Order XXV Rule 4 of the Original Side Rules for filing an application of probate of a Will. The relevant portion of the prescribed format is extracted hereunder :
" I, J.K., of (residence and description) one of the witnesses of the said Will and testament of A.B., the testator mentioned in the petition, declare that I was present together with .............. at the house of ........... and we did then and there see the said deceased set and subscribe his name at the foot of the said Will now shown to me and marked A and declare and publish the same as and for his last will and testament, and that thereupon, I and the said ............ did at the request of the said deceased and in his presence and in the presence of each other, all being present at the same time, set and subscribe our respective names and signatures at the foot of the said Will as witnesses thereof." (emphasis supplied).
40. The term "at the house of" has been taken out of context and that has been characterised as inconsistent with the evidence. The discrepancy cannot be a conclusive to say that the Will was executed in the house of the testatrix, as the Original Petition is drafted as per the prescribed format. The evidence of P.Ws.1, 3 and 4 are cogent and corroborative to each other about the place of execution of the Will at the Registrar's office at T.Nagar.
41. A Division Bench of this Court in the case of Corra Vedachalam Chetty v. G.Janakiraman, 2001 (3) CTC 283, has held as follows :
"The testamentary Court is a Court of conscience. It is not a Court of suspicion. It is not the law that, whenever a Will is sought to be proved in the Court, the Court should start with the presumption that the Will is not genuine, that it is fraudulent and that the person who chooses to probate the Will must remove all such suspicions even they are unreal. The object of the probate proceedings is not to render the testamentary document ineffective but to make it effective and render the terms of that Will operative. In doing so, the Court has to take note of the fact that the testator is not available to the Court to state as to whether the document in fact was his or her last Will or as to whether he or she had signed the same and whether the attestors had signed receiving an acknowledgment from her about the execution of the Will. It is for that reason that the Courts should be cautious while dealing with the evidence placed before them in relation to the executions and attestation of the Will as also the disposing state of mind of the testator.
This need for caution cannot be exploited by the unscruplous caveators who choose to cull out imaginary suspicions with a view to prevent the legatees under the Will from claiming the benefit thereunder and to render the last Will of the deceased wholly ineffective. In this context, the conduct of the persons who raise the alleged ground for suspicion is also to be looked at, to know as to how credible are the grounds for suspicions sought to be raised by such persons."
42. We are of the view that it would be appropriate in this context to quote the observations of their Lordships made in Suna Ana Arunachalam Chetty v. S.R.M. Ramaswami Chetty, 1916 Indian Cases (Vol.XXXV) PC 1 :
"When a Will has once been made and is apparently in perfect form, and the evidence of the attesting witness is to be trusted, few things can be more dangerous than to attempt to recreate the kind of Will that the man ought, in the opinion of the Court, to have made and once the man's mind is free and clear and is capable of disposing of his property, the way in which it is to be disposed of rests, with him, and it is not for any Court to try and discover whether a Will could not have been made more consonant either with reason or with justice."
43. It would be apt to quote few of the legal positions deduced by a Division Bench of this Court in the case of Palaniswami v. P.Vellingiri Grounder, 2003-3-LW 363 :
"The Will is the Will of the testator and he has, under the law, freedom to give the property to whomsoever he likes.
Once it is established that the Testator was free and had sound disposing mind, it is no longer the duty of the Court to go further to inject its own ethics of what is or is not moral or fair disposition, according to the Court's own standards.
The uneven distribution of assets among children by itself cannot be taken as a suspicious circumstance. In such an event, the standard of scrutiny has to be different than in the ordinary cases more so when no reasons are given for such disposition."
The above propositions stare directly on the defendants.
44. In the light of the decisions cited supra and in view of the discussions made in the foregoing paragraphs, we are of the considered view that the appeal has to be allowed and the same is allowed. The judgment and decree of the learned single Judge has to be set aside and accordingly set aside. The suit is decreed as prayed for. No costs.
(K.R.P.,J.) (P.P.S.J.,J.) 18.08.2009 Index : Yes Internet : Yes mf K.RAVIRAJA PANDIAN, J.
And P.P.S.JANARTHANA RAJA, J.
Judgment in OSA No.185 of 2001 18.08.2009