The petition originally filed for the grant of Letters of Administration has been converted as suit in view of the caveat filed by the defendants herein.
2. The brief facts of the case of the plaintiff are as follows:-
The plaintiff is the friend of the testator Sethumadavan Nair and the respondents 1 and 2 are the relatives of the testator. The deceased had a property by way of partition situated in Kerala. The deceased left the Will bequeathing the property in favour of the plaintiff. Hence the plaintiff prays for probate of the Will.
3. The contentions of the written statement filed by the second defendant:
Denying the allegations, the second defendant submitted that the Will dated 08.04.2009 as fraudulent and vexatious. The testator has already executed a Will dated 04.07.1997 in Malayalam which was registered one wherein, he has bequeathed the property to the defendant and one Vijayan. The alleged Will dated 08.04.2009 has also failed to divulge the fact of the death of the said Vijayan, who was a beneficiary under the earlier Will. The Will dated 08.04.2009 has been fabricated and forged one. The deceased Sethumadhavan Nair was hailing from Trissur District, Guruvayur and remained a bachelor and not married in his life time. He was carrying on his business under the name and style of Sree Krishna Machine Tools in Sembudoss Street, Chennai till his death. Before his death, the testator was sick and was taking treatment in the hospital. Taking advantage of the loneliness of the testator, the plaintiff fabricated the Will to his advantage, despite the fact that the testator was educated and successfully running the business and corresponds with other customers in English and used to sign in English. The alleged Will came into existence just 5 days prior to the death of the testator. The death of the first respondent in O.P.No.340 of 2009 is also known to the testator. Still the said fact not divulged in the alleged Will executed by the testator. Hence, disputed the will and prayed for dismissal of the Letters of the Administration.
4. On the basis of the pleading the following issues were framed :
1. Whether the Will dated 04.07.1997 is true and valid?
2. Whether the Will dated 08.04.2009 is true and valid?
3. To what other reliefs, the plaintiff is entitled?
5. On the side of the plaintiff, plaintiff himself has been exaimned as P.W.1 and Ex.P.1 filed on the side of the defendant. On the side of the defendants, D.W.1 has been examined and Ex.D1 to Ex.D.8 were marked.
Exhibits produced on the side of the plaintiff:
S.No Exhibits Date Description of documents
1. P-1 08/04/2009 Original Will Witnesses examined on the side of the plaintiffs:
P.W.1. - S.Kasi Exhibits produced on the side of the Defendants :
S.No Exhibits Date Description of documents
1. D-1 14.11.1997 Original registered Will executed by Late Sethumadhavan Nair with translated copy
2. D-2 19.05.2000 Copy of Death Certificate of P.K.Vijayan
3. D-3 07.06.2011 Property tax receipt with translated copy
4. D-4 07.06.2011 Property tax receipt with translated copy
5. D-5 07.10.2009 Property tax receipt with translated copy
6. D-6 07.10.2009 Property tax receipt with translated copy
7. D-7
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Copy of voter ID of the second defendant
8. D-8
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Copy of fair value of land issued by Registration Department, Kerala Witnesses examined on the side of the first defendants D.W.1 Mr.Vinod
6. There was no representation for the plaintiff. The defendant counsel is present and heard his arguments.
7. According to the learned counsel for the defendants, the plaintiff no way connected with the testator and taking advantage of the fact that the deceased was living in Chennai as a bachelor and died in Chennai, the plaintiff has fabricated the Will in respect of the property situated in Trissur, Kerala. The manner in which the Will came into existence is highly doubtful. The entire Will has been forged and the witness who have attested the Will have also not been examined. The death of the close relative of the testator is also not reflected in the subsequent Will, which was the subject matter of the present suit. All these facts clearly prove that the Will propounded by the plaintiff has not been proved in the manner known to law. Whereas, the testator has already left a Will in the year 1997 bequeathing the property to the defendant and one Vijayan. Hence, submitted that the present Will has been fabricated and prayed for dismissal of the suit.
8. In the light of the above submissions, now the issues have to be answered one by one.
9. Issue Nos.1 to 3 :
P.W.1 alone has been examined on the side of the plaintiff. P.W.1 in his evidence has stated that the deceased Sethumadhavan Nair died on 14.04.2009 at Chennai leaving behind the property situated in Trissur and executed the Will bequeathing the property for the purpose of clearing the debts and thereafter, remaining amount will be handed over to the Guruvayur Temple. In the entire chief examination of the P.W.1, it has not been mentioned, how P.W.1 is connected with the deceased, except mentioning that he was his friend. Whereas the second defendant is a relative of the deceased. The cross examination of P.W.1 will clearly show that he came into contact with the deceased through his business contact. Further in his cross examination, he has stated that the deceased died on 14.04.2009 in the hospital. But, no proof whatsoever has been filed to show that the deceased died in the hospital.
10. It is the contention of the plaintiff that the testator incurred heavy debt. So in order to discharge the debt from the sale proceeds of 7 cents of land, Will was executed and the balance amount out of the sale proceeds to be handed over to the Guruvayur Temple. In his cross examination he has admitted that the testator died due to illness and his started trembling and he was bedridden and became very weak and was suffering from nervous problems. He does not know how many days he was treated in the hospital while he was undergoing treatment and what type of treatment was given to the testator. Similarly also he was not aware who are all present with him in the hospital. Similarly, he is not aware who are all present at the time of execution of the Will. He had admitted that he does not know where Will dated 08.04.2009 has been executed. He has also shown ignorance about the thumb impression differences in the Will. His evidence also clearly indicate that one Sukumaran was involved in the transaction and he handed over the cheques said to have been issued by the deceased. All these facts clearly indicate that only for the purpose of securing the debts Ex.P.1 came into existence.
11. It is curious to note that in spite of several opportunities given to the plaintiff, the attesting witnesses have not been examined for the reasons best known to the plaintiff. The Will Ex.P.1 when carefully perused, is neatly typed. The recitals in the Will clearly show that the testator has clearly narrated the previous Will executed in favour of the defendant and one Vijayan. The loan due to the one Sukumar is also mentioned in the Will. The entire recitals of Ex.P.1 will clearly indicate that the plaintiff was appointed as an executor only for the purpose of securing the loan said to be due to one Sukumar. After selling the property for fancy price and after paying the loan amount to Sukumar and thereafter any other remaining amount has to be paid to Guruvayur Temple. Only the thumb impression was obtained. Whether it was LTI or some other thumb, there was no mention in the Will. Similarly, two witnesses, who are said to have attested the above Will, has also not come before this Court to prove the said Will as mandated under
section 68 of the Indian Evidence Act.
12. The second defendant was examined as D.W.1 and he has spoken about the execution of the earlier Will. Ex.D.1 Will dated 04.11.1997, when carefully seen, it is written in Malayalam and it was a registered Will. Though the defendant also not examined the witnesses who have attested the Will, the document itself clearly indicate that the testator has already registered the Will. If really the testator has an intention to execute the subsequent Will, he would have done by way of registration. He has signed the above Will Ex.D1 properly. In the Ex.P.1 Will, only thumb impression was available and that also has not been established as that of the testator herein. Ex.D.2, death certificate of one P.K.Vijayan, clearly show that he died on 07.05.2000. He is also one of the beneficiary under Ex.D.1 Will. The said Vijayan is a relative of the testator. The testator being the relative of the said Vijayan, he would have mentioned the death of the said Vijayan in the subsequent Will. The factum of non-mentioning the death of the said Vijayan, who was a beneficiary in the previous Will also creates serious doubt about Ex.P.1 Will. Similarly Ex.D.3 to D.6 are the tax receipts said to be in the name of one Rukmani Ammal. All of them are in Malayalam and the translated copy is also filed. The same clearly show that the said Rukmani Ammal has paid the taxes. The said Rukmani Ammal is said to be the mother of one of the beneficiary in Ex.D.1. She has also not been made a party to the suit.
13. In any event, Ex.P.1 Will has not been proved in the manner known to law and also create a serious doubt about the Will. A person, who is residing away from his own state and he executing the Will appointing some third party as an executor in respect of the property situated in his own town is also doubtful. Hence, this Court hold that Ex.P.1 dated 08.04.2009 has not been proved in the manner known to law. Though there was an issue with regard to the previous Will dated 04.11.1997, the Will was a registered one. However, the same has not proved in the manner known to law. It is for the defendant to establish the Will in the manner known to law in a separate proceedings by examining the attesting witnesses or to prove the same in any other manner as provided in law.
14. In the result, the suit is dismissed with costs.
20.02.2017 Index:Yes/no Internet: Yes vrc N.SATHISH KUMAR.J.
vrc Judgment in T.O.S.No.17 of 2011 20.02.2017 http://www.judis.nic.in