This application is filed by the applicant, who was the fourth respondent in the main O.P. It was this applicant who took out an application in A.No.1315 of 2006 before this court to a citation to the respondent to bring the Will left by the testatrix to this Court. He claimed knowledge about the Will when there was a partition suit was heard by the City Civil Court filed by the first respondent in the O.P. The main O.P. was filed by the first respondent P.R.Sethuraman under Sections 222 and 276 of the Indian Succession Act, 1925. The O.P. was filed for the purpose of obtaining a probate in terms of the last Will and Testament left by Late Dr.S.V.Rajalakshmi, who is the sister of the applicant.
2.When the O.P.No.875 of 2006 was filed before this court, apart from the applicant, there were three other respondents. They were all duly served. Insofar as the applicant is concerned, he was the fourth respondent in the O.P. and he was duly served and had entered his appearance through counsel M/s.K.V.Rajan and K.Suresh Kumar. After summons were issued, the applicant also filed an affidavit, dated 20.2.2006 in A.No.1315 of 2006 stating no objection to the first respondent to bring the Will of Testatrix. This Court, by an order, dated 6.3.2008, directed the learned Master to record evidence. Accordingly, the learned Master of this Court recorded evidence of P.W.1 (P.R.Sethuraman, the first respondent herein) and P.W.2 (N.Gunaseelan), the attesting witness on 12.3.2008 and Exhibits P.1 to P.5 were marked through them. Then, the matter came to be posted before this court and this court, by an order, dated 17.3.2008, granted probate.
3.In all these proceedings, namely at the time when the court ordered the Master to record evidence and when the Master recorded evidence on 12.3.2008 and finally when a final grant came to be made on 17.3.2009, the counsel for the applicant's name was shown in the cause list printed for those dates. There was no opposition for the grant of probate either from the side of the applicant or from anyone else. Even when the Master recorded evidence, neither P.W.1, who was the first respondent nor P.W.2 were cross examined by the applicant.
4.After a lapse of considerable period, the applicant has come up with the present application to set aside the grant of probate by stating that the Will executed by his sister Late Dr.S.V.Rajalakshmi was surrounded by suspicious circumstances. He contended that the very execution of the Will was doubtful and that the Will was not proved beyond doubt. The ground set out for throwing suspicion are as follows:
(i)P.W.2, Gunaseelan was incompetent to be an attesting witness and who attested the Will on 21.1.1994. According to the applicant, as he was born on 28.5.1977, he was only 16 years and 9 months on the date of attesting the Will. Since P.W.2 on the date of attesting the Will, was a minor, he was an incompetent witness.
(ii)The second attesting witness one D.Sundarmoorthy, who attested the Will, was an Auto driver and he would not have known English to understand the Will.
5.On the question of delay in filing the application it was stated that since the applicant had to make enquiries on this issue, there was a delay in filing. On notice from this court, the first respondent has filed a detailed counter affidavit along with a typed set of papers. In the counter affidavit filed by the first respondent, it is stated that the applicant was throughout present in the proceedings and had never raised such objections and it was an after thought. It was also stated that the testatrix was a Doctor by profession and she has made a conscious decision in writing the Will on 21.1.1994. It was also registered with the Registrar's Office. In that Will, it can be found that she had made a conscious decision to exclude the applicant as well as Mrs.P.R.Narayani (3rd respondent in the OP). In paragraph 3 of the Will, it was found as follows:
"To remove all doubts that may arise in future I hereby emphatically state that none of my so called relations like my brother Mr.S.V.Ramakrishnan, my neice Mrs.P.R.Narayani etc. shall have any right whatsoever over my properties nor shall the ordinary law of succession be held to be application to my properties to be left over by me after my death."
6.Mr.T.V.Ramanujan, learned Senior Counsel leading Mr.S.Anuradha Balaji, stated that the application is filed under Section 263 read with Explanation (b) of the Indian Succession Act, 1925. The said section along with the explanation attached to the Section reads as follows:
"263.Revocation or annulment for just cause.- The grant of probate or letters of administration may be revoked or annulled for just cause.
Explanation.- Just cause shall be deemed to exist where-
(a) omitted -
(b)the grant was obtained fraudulently by making a false suggestion, or by concealed from the Court something material to the case; or"
7.The learned Senior Counsel submitted that the child may not be an attesting witness and therefore, since the only attesting witness examined was P.W.2, his evidence should be excluded. Secondly, D.Sundaramoorthy, the second attesting witness was a Auto Driver, who is unfamiliar with English and would not have understood the Will, but had affixed his signature in the Will. The learned Senior Counsel stated hat since these facts were not known at the time of Probate proceedings, this application could not be filed earlier.
8.It must be noted that since the probate is attacked under Section 263 Explanation (b) that the grant of probate was obtained fraudulently, it is for the applicant to prove the same and not throw the burden of proving it on the legatee. As to how a Will has to be attested has been laid down by the Supreme Court in its judgment in Yumnam Ongbi Tampha Ibema Devi Bs. Yumnam Joykumar Singh and others reported in (2009) 4 SCC 780. After reviewing all the case laws on the subject, the Supreme Court in paragraphs 12 and 13 had observed as follows:
"12.The attestation of the will in the manner stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attested (sic attesting) witness should put his signature on the will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Since a will is required by law to be attested, its execution has to be proved in the manner laid down in the section and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document.
13.Therefore, having regard to the provisions of
Section 68 of the Evidence Act and Section 63 of the Succession Act, a will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. The attesting witness should speak not only about the testator's signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator."
9.In the very same judgment, the Supreme Court had also stated that as to how a Will has to be proved before the court in terms of the Indian Evidence Act. The following passages found in paragraph 17 may be usefully extracted below:
"17.It is to be noted that the trial court did not even record any reason for coming to the conclusions as done. No issue was framed regarding the validity of the will. The evidence of PW 2 does not in any way support the claim of due execution and attestation of the will. On the contrary, it clearly establishes that he did not sign in his presence, he did not know what was the nature of the document. There was no attesting witness who had signed in his presence and, therefore, the requirements of
Section 68 of the Evidence Act have to be complied with in order to show that the two persons who claimed to have signed as attesting witness can be really treated as attesting witnesses."
In the present case, the first respondent has proved the Will in a manner known to law.
10.The Supreme Court in Gurdial Kaur and others Vs. Kartar Kaur and others reported in 1998 (2) MLJ (SC) 128 dealt with the circumstances under which a Will can be attacked on suspicious circumstances as well as the onus of proving the same. The following passages found in paragraphs 3 and 4 of the said judgment may be usefully extracted below:
"3.The law is well-settled that if there is suspicious circumstance about the execution of the Will, it is the duty of the person seeking declaration about the validity of the Will to dispel such suspicious circumstances. In this connection, reference may be made to the decision of this Court in Rani Purnima Debi and another v. Kumar Khagendra Narayan Deb and another, A.I.R. 1962 S.C. 567 : (1962) 1 S.C.J.725: (1962) 1 M.L.J. (S.C.) 27: (1962) 3 S.C.R. 195. It has been held in the said decision that if a Will being registered and having regard to the other circumstances, is accepted to be genuine, the mere fact that the Will is a registered Will it will not by itself be sufficient to dispel all suspicions regarding the validity of the Will where suspicions exist. It has been held that the broad statement by witness that he had witnessed the testator admitting execution of the Will was not sufficient to dispel suspicions regarding due execution and attestation of the Will. It has been specifically held that registration of the Will by itself was not sufficient to remove the suspicion. Relying on an earlier decision of this Court reported in H.Venkatachala v. B.N.Thimmajamma, A.I.R. 1959 S.C. 443, it has been held in the said decision that where the propounder was unable to dispel the suspicious circumstances which surrounded the question of valid execution and attestation of the Will, no letters of administration in favour of the propounder could be granted.
4.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 violation of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will. Therefore, whenever there is any suspicious circumstance the obligation is cast on the propounder of the Will to dispel suspicious circumstance. ...."
11.As to whether a child can be a competent witness before the court came to be considered by this court in S.Amutha Vs. C.Manivanna Bhupathy reported in (2007) 1 MLJ 916. After reviewing the case laws on this issue and the binding precedents of the Supreme Court, this court laid down the parameters under which an evidence of a child witness can be received by the court, which is as follows:
"31.Therefore, after the journey into various binding decisions, the following legal prepositions emerge:-
(i)There is no disqualification for a child witness;
(ii)The Court must conduct a preliminary enquiry before allowing a child witness to be examined;
(iii)The Court must be satisfied about the mental capability of a child before giving evidence;
(iv)While sifting the evidence, the possibility of a bias or the child being tutored should be taken note of;
(v)The evidence of a child witness should be corroborated;
(vi)The child cannot be administered oath or affirmation and it is incompetent to do so;
(vii)The Court cannot allow a minor to make an affirmation;
(This will create difficulties for a child as in the Civil Courts in all the proceedings Order 18 Rule 4 C.P.C. will have to be followed making it mandatory to file proof affidavits before cross examination)
(viii)The preference shown by a child is an important factor in child custody matters;
(ix)A child giving testimony in various fora is entitled to an extra care and special arrangements. In other words, a child friendly atmosphere must be created in Courts."
12.The Supreme Court also vide its decision in Acharaparambath Pradeepan and another v. State of Kerala reported in (2006) 13 SCC 643 after referring to Section 118 of the Evidence Act held that the child was not incompetent to depose before the court. The following passages found in paragraphs 44, 46 and 47 of the said judgment may be usefully extracted below:
"44. Section 118 of the Evidence Act seeks to exclude evidence of those who may suffer from intellectual weaknesses. It reads as under:
118. Who may testify.All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. In terms of the said provision, therefore, all persons shall be competent to testify unless by reason of tender years, the court considers that they are incapable of understanding the questions put to them and of giving rational answers. It is for the Judge to satisfy himself as regards fulfilment of the requirements of the said provision. The opinion of the learned Judge had been recorded and, thus, it satisfies the test laid down by this Court in Rameshwar v. State of Rajasthan.
46. A child indisputably is competent to testify if he understands the question(s) put to him and gives rational answer(s) thereto. None of the witnesses have been found to be suffering from any intellectual incapacity to understand the questions and give rational answers thereto.
47. In Ratansinh Dalsukhbhai Nayak v. State of Gujarat this Court stated the law, thus: (SCC p.67, para 6) 6. Pivotal submission of the appellant is regarding acceptability of PW 11s evidence. The age of the witness during examination was taken to be about 10 years. The Indian Evidence Act, 1872 (in short the Evidence Act) does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, diseasewhether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer, J. in Wheeler v. United States. The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon.
13.It must be noted that in the present case, P.W.2 at the time of deposing before the court was 30 years old and had spoken about the execution of the Will in his presence and in the presence of the second attesting witness. He also stated that both the witnesses have attested the signature of the testatrix after her signature in the Will. He further stated that that the testatrix was in a sound and disposing state of mind and she was in good health.
14. The unnecessary insinuation made against the second attesting witness that he was an Auto Driver is unwarranted and merely because, a person is below and poorer side of society and living will his own income does not disqualify him from being a witness to the execution of a Will. It must be stated that the second attesting witness had signed only in English. This Court cannot presume that such a person was unfamiliar with English. It must also be stated that a person merely because earning his livelihood by driving an auto cannot be looked down upon. One only has to recall that a well known Tamil Poet, literature and short film producer Puduvai Ilavenil was also driving autos.
15.In the absence of the educational qualification of an attesting witness not being brought on record, one cannot presume that such a person was an unletted person. In the present case, the second attesting witness had signed in English. Apart from all these facts, the testarix was a Doctor by profession and after executing the Will on 21.1.1994, she had passed away only on 18.01.2004, i.e. nearly after a period of 10 years.
16.The present application cannot be brought under Section 263 of the Indian Succession Act and it is a clear exercise of abuse of process. The applicant being edged out of the benefits from the Will and after waiting for a period of nearly one year from the date of grant of probate, has come up with the present application. The onus of proving that the Will was signed under suspicious circumstances having miserably failed and the grounds alleged by the applicant do not stand to legal scrutiny, this application is to be dismissed with cost.
17.In the light of the same, this application stands dismissed with cost of Rs.2000/- (Rupees two thousand only) to be paid by the applicant to the counsel for first respondent.
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