Shakuntala Ramaswamy vs Tarakkad Ramaswamy Sudhir
2016 Latest Caselaw 2306 Bom

                                              1                              osapp2a


    ssp




                                                                      
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    ORDINARY ORIGINAL CIVIL JURISDICTION
                          APPEAL NO.2 OF 2016 IN




                                              
                     TESTAMENTARY SUIT NO.73 OF 2007
                                   IN
                     TESTAMENTARY PETITION NO.734 OF 2002
                                                      




                                             
       Shakuntala Ramaswamy                            ...Appellant
       vs.
       Tarakad  Ramaswamy Sudhir                       ...Respondent




                                   
       Mr.Bipin J. Joshi for the appellant
                              
       Mr.C.D.Sheshadri for the respondent

                     CORAM : A.S.OKA, &
                             
                             P.D.NAIK,JJ.

DATE : MAY 5, 2016

JUDGMENT: (PER A.S.OKA,J.)

1 By this Letter Patent Appeal, the appellant has taken an exception to the Judgment and Decree dated 6th February 2014 passed by the learned Single Judge

in a Testamentary Suit No.73 of 2007. The appellant (original plaintiff) filed a petition for seeking a probate in respect of the last will and testament of

one Tarakkad S. Ramaswamy @ T.S.Ramaswamy who died in Kerala on 7th May 2001. It is claimed by the appellant-plaintiff that the said T.S.Ramaswamy (for short `the deceased') executed his last will and testament dated 29th March 2001 and that she is the sole executrix appointed under the said Will (for short `the disputed Will'). The appellant- plaintiff is claiming to be a widow of the deceased

2 osapp2a

and the respondent-defendant is the son of the deceased.

2 On service of citation, the respondent-

defendant filed a Caveat. In the affidavit in support of the Caveat, he contended that the deceased had executed his last Will and testament

dated 18th December 1996 under which his wife Ms Bhuvana was appointed as the Executrix. The respondent stated that the Will propounded by the

appellant-plaintiff which is executed is false, forged and fabricated.

3 For the sake of completion of facts, it must be noted that the respondent-defendant filed a testamentary petition No.922 of 2001 in this Court

praying for grant of probate in respect of the Will dated 18th December 1996 of the deceased. On 21st

October 2002, this Court granted Probate in favour of the respondent. The present petition was filed

by the appellant-plaintiff on 22 nd October 2002 for seeking probate. On 8th August 2005, the present appellant-plaintiff filed Miscellaneous Petition No.37 of 2005 for revocation of the grant to the

respondent. It may be also noted that by consent of the appellant and the respondent, it was agreed that the grant made in favour of the respondent will continue to be valid subject to the result of the probate petition filed by the present appellant. It was agreed that in case, a probate is granted in the present petition, the grant in favour of the respondent shall stand revoked.

                                                 3                             osapp2a



     4        As   there   was   a   contest   by   the   respondent,   the 




                                                                       

Testamentary Petition filed by the appellant- plaintiff was tried as a suit. The appellant-

plaintiff examined herself as a witness. The appellant-plaintiff also examined one Mrs.Kalpaka Suresh who was an attesting witness to the disputed

Will as a witness. The respondent stepped into the witness box and examined himself as a witness. The parties produced various documents in support of the

respective cases. By the impugned Judgment and

Decree, the suit/petition filed by the appellant was dismissed and accordingly, it was directed that the

Probate be issued to the respondent in Testamentary Petition No.922 of 2001 on the basis of the Will and Testament dated 18th December 1996 by the

Prothonotary.

5 The learned counsel for the appellant has taken us through the oral and documentary evidence as well

as the reasons recorded by the learned Single Judge. He pointed out that the appellant married to the deceased on 31st August 1989 and there was no dispute between the parties about the said marriage. He

pointed that the respondent happens to be the son of the first wife of the deceased. He pointed out that the relationship between the respondent and the deceased was always strained and in fact on 2 nd September 1982, a circular was issued by the deceased recording threats given to him by the respondent. In fact, in August and September 1989, the deceased had filed police complaints against the

4 osapp2a

respondent. He submitted that the minor discrepancies relied upon by the respondent in the

evidence and especially the evidence of attesting witness as regards the place of execution of the

Will are insignificant. He pointed out that the evidence on record will show that on the date of execution of the Will i.e 29th March 2001, the health

of the deceased was sound. He urged that the admission of the deceased to the hospital on 7th December 2000 is of no consequence as the deceased

was immediately discharged. He pointed out that on

1st March 2001, the deceased executed a Leave and Licence Agreement in respect of his flat at Govandi,

Mumbai. He submitted that the evidence of the appellant especially as regards the sound physical and mental condition of the deceased on 29th March

2001 is not at all shaken in the cross examination. He pointed out that even assuming that the deceased

was suffering from Cancer that by itself is no reason to doubt the state of mind of the deceased

on the date of execution of the Will. He pointed out the evidence of the attesting witness Mrs.Kalpaka Suresh. He pointed out that she deposed that she along with her husband are the

attesting witnesses to the disputed Will. He submitted that the witness deposed that the Will was executed at the residence of the deceased at Tharekkad, Palakkad, Kerala State. He submitted that merely because in the affidavit in support of the petition filed by the said witness, it is stated that the Will was executed at Govandi, Mumbai, the evidence of the witness cannot be brushed aside. He

5 osapp2a

pointed out that in the cross examination, the attesting witness stated that when she visited the

place of residence of the deceased, he was sitting on the chair and there was a table near the chair.

He pointed out that in the cross examination, it is brought on record that the deceased read out the contents of the Will to his wife as well as the

attesting witnesses. He submitted that on conjoint reading of the evidence of both the witnesses, it is established that the deceased was in sound state of

health on the date of execution of the Will and the

execution has been duly proved. He pointed out that the documentary evidence shows that the respondent

was hardly meeting the deceased.

6 The learned counsel for the respondent

submitted that the appellant did not discharge the burden on her to prove that the deceased was in a

sound and disposable state of mind on the date of execution of the disputed Will. He submitted that

the evidence of the attesting witness as well as the appellant is completely contrary to the affidavits filed in support of the petition filed by the appellant and in fact, there is a material

inconsistency in respect of the place of execution of the Will. He pointed out the number of suspicious circumstances are brought on record by the respondent and that it was proved on the basis of the documents that the health condition of the deceased on the date on which the disputed Will was allegedly executed was very poor. He submitted that number of suspicious circumstances were brought on

6 osapp2a

record by the respondent. He submitted that the learned Single Judge had an occasion to observe the

demeanor of the witnesses. He urged that there is no reason to find fault with the reasons recorded by

the learned Single Judge.

7 We have given careful consideration to the

submissions. We have perused the pleadings and documentary evidence on record. The learned Single Judge in the impugned Judgment and order has

recorded that though the defendant had disputed the

execution of the Will, the same was marked as exhibit to enable the defendant to cross examine the

appellant. The learned Single Judge held that the appellant failed to prove the execution of the disputed Will. The learned Single Judge has noted

in the impugned order that at the time of her marriage with the deceased, the age of the present

appellant-plaintiff was 35 years and the age of the deceased was 73 years. As pointed out in the

factual aspects narrated earlier, the disputed Will was allegedly executed on 29th March 2001. The deceased died on 7th May 2001. On 31st August 1989, by a letter which is marked as Exhibit X-2, the

deceased informed the Officer Incharge of Deonar Police station that the respondent was harassing him. He stated therein that he had recruited the present appellant as a servant and he has decided to marry with her.

8 We have perused the Will. In the Will the address of the deceased is mentioned as Flat No.8,

7 osapp2a

Building No.2, Sri Swati Co-operative Housing Society, Govandi, Mumbai-400 088. As noted by the

learned Single Judge, the alleged signature of the deceased appears on the Will at an odd place.

Instead of signing on the right hand side, he has signed at the centre just above the attestation clause. In the application for probate made by the

appellant, on the first page, the address of the deceased at the time of his death was mentioned of the aforesaid flat at Govandi, Mumbai. In paragraph

4 of the petition, the appellant-plaintiff has

stated that the Will was executed in the said flat No.8 at Govandi, Mumbai. One of the two attesting

witnesses Mrs.Kalpaka Suresh filed an affidavit in support of the probate petition along with the petition. In paragraph 2 of the said affidavit, she

has stated thus :

"2 That on the 29 th day of March 2001, I was

present together with Suresh M.S at the house

of the deceased abovenamed at Flat No.8, Building No.2, Sri Swati Co-operative Housing Society Ltd., Govandi, Mumbai 400 088, and we did then and there see the said deceased set

and subscribed his name at the foot of the testamentary paper in the English language and the character, which is referred to in the petition herein and marked Exhibit "A" and declare and published the same as his last Will and Testament."

(underline added)

8 osapp2a

9 Thus, not only the petition affirmed by the appellant but the affidavit of the attesting witness

accompanying the petition records that the Will was executed in the aforesaid flat No.8 at Govandi in

Mumbai. As stated earlier, the petition was filed by the appellant on 21st October 2002. The affidavit in lieu of examination-in-chief of the appellant is

dated 5th October 2010. In paragraph 8 of the said affidavit in lieu of examination-in-chief, the appellant-plaintiff has stated thus:

"8

The original Will dated 29.3.2001 was prepared by the deceased with the address of

permanent residence as Flat No.8, Building No.2, Sri Swati Co-operative Society Ltd., Govandi, Mumbai-400 088 and the same was

executed on 29.3.2001 at Tharekkad, Palakkad, Kerala State. However, inadvertently I have

stated in paragraph 4 of the Petition that the Will is duly executed at Flat No.8,

Building No.2, Sri Swati Co-operative Society Ltd., Govandi, Mumbai-400 088 instead of Tharekkad, Palakkad, Kerala State therefore, I request to this Hon'ble Court to read it as

corrected the said address Tharekkad, Palakkad, Kerala State. The said originally Will which is already deposited in the office of the Prothonotary & Senior Master, High Court, Bombay may be exhibited and marked."

                                   (underline added)





                                                9                             osapp2a

     10       We   must   note   that   the   appellant   never   applied 

for the amendment of the petition for Probate for

correcting the alleged inadvertent errors. Even the opening portion of the disputed Will mentions the

address of the deceased as Flat No.8 at Govandi.

Just above the alleged signature of the deceased, it is stated that it was signed at Tharekkad, Palakkad,

Kerala State. In the affidavit in lieu of examination in chief of the said Mrs.Kalpaka Suresh dated 6th December 2010, in paragraph 3, she came out

with a case that the execution of the Will was at

Tharekkad, Palakkad in Kerala. In paragraph 5, she has referred to her own affidavit in support dated

11th November 2002 and stated that due to mistake, in the said affidavit, she has stated that the Will was executed in Flat No.8 at Govandi, in Mumbai. The

attesting witness when questioned in the cross examination, accepted that both the affidavits were

prepared by the Advocate practising in Mumbai which were explained to her and after satisfying herself

about the contents, she signed and declared the affidavit before a Notary in Kerala. We must note here that at no stage, the appellant moved for amendment of her petition which contains a clear

recital of execution of the Will at Govandi, Mumbai.

Even the attesting witness did not move the Court for seeking amendment to the affidavit or for grant of leave to file a fresh affidavit in support.

11 The learned Single Judge closely scrutinized the disputed Will as well as the Will dated 18th December 1996 propounded by the respondent. In

10 osapp2a

paragraph 19 of the impugned order, the learned Single Judge recorded following findings:

"19 It is case of the defendant that the

Will dated 18 th December 1996 which was

propounded by the defendant was prepared by the said deceased in his own study room at

Mumbai on his own typewriter and after preparing the said Will, he sent the original of the said Will to his brother

Mr.R.Subramanium in Chennai to be kept in

safe custody. As far as Will dated 29

March 2001 propounded by the plaintiff is th

concerned, the said Will is alleged to have been prepared by the said deceased at Kerala from his death bed. A perusal of both the

Will indicates that the same are almost on the same pattern, typed on almost on the same

type of typewriter, the font size is the same, one is prepared in Mumbai and the other

in Kerala. The first two paragraphs and the last three paragraphs are the same. The place where the said deceased had signed is at the same place. From the probated Will,

the first two paragraphs are copied word to word, in the third paragraph the grand- daughter's name is removed and the name of the plaintiff is introduced. In fourth paragraph the ancestor house is missing and in its place the house of the defendant is introduced. A perusal of the alleged Will clearly indicates that the same is ex-facie

11 osapp2a

fabricated only after probate in respect of the Will propounded by the defendant is

obtained by the defendant."

(underline supplied)

12 At this stage, it will be necessary to make a reference to the testimony of the respondent. He claims that even after the second marriage of the

deceased with the appellant though he was staying in Chembur, every alternate day, he used to call the deceased and enquire about his health. He claims

that from 1998 till December 2000, he regularly

visited the place of his father. He states that the deceased had become a pack of bones. He deposed that

the deceased was admitted at the Christian Mission Hospital at Ottapalam for treating combination of serious Heart Disease and Cancer ailment. He was

referred to West Fort Hospital at Thrissur on 12th December 2000. He stated that he rushed to the

hospital at Thrissur. What is stated by him in paragraph 17 of his deposition reads thus:

"17...The defendant reached the hospital from Mumbai and found that the (late) Mr.T.S.Ramaswamy was left unattended by his

wife in a room. He did not recognise me, for quiet sometime. He was able to get up and I helped him to raise himself and sit reclining against the wall. After a few minutes he recollected me as his son. The attending oncologist in hospital stated that he could live for six days or six weeks or six months based on the Colonoscopy report, which

12 osapp2a

confirmed the advanced stage of cancer of the colon. The oncologist also showed me the

report of the colonoscopy done on the computer screen which showed the path of the

cancer from the rectum to the Sigmond part of the colon, a total length of around 20 cm which was in the galloping stage with little

hope for survival."

(Underlines supplied)

Moreover, in paragraph 18, the respondent stated thus:

"18 As death was inevitable and taking into consideration his age and his heart

condition, the galloping nature of the Big C in his colon and other serious health

complications, he was discharged the following day to go home. During the

discharge procedure, services of two ward boys were specially requested to physically lift him and put him on a bed trolley and physically position him in the back seat of

the taxi at the hospital exist as it was impossible for him to get to the taxi on his own. On reaching the Tarakad village, neighbours volunteered to carry him into the house and position him on his bed. Thereafter, I informed all the relatives about his very bad state of health as the end was in sight and requested them to visit him

13 osapp2a

for the last time, if they could. The younger brother of my (late) father,

Mr.T.S.Subramaninan and his nephew Mr.T.G.Vishwanathan as well as my wife and

daughter visited him on 21st and 22nd December 2000 for the last time. The general view of all of them was that he was sinking."

14 It appears from the discharge summary of the West Fort Hospital at Thrissur that the deceased

was admitted on 12th December 2000 and discharged on

13th December 2000. The report of the Colonoscopy records dignosis of "ca-sigmoid colon". It will

be also necessary to make a reference to the cross examination of the respondent made by the Advocate for the appellant. In the cross examination, he

stated that the deceased was passing blood from stool for a quite some time before he passed away.

In the cross examination, he relied upon the discharge summary of the hospital at Ottapalam

which records that the deceased had heart ailment, hypertension and Cancer.

15 The appellant in her affidavit in lieu of

examination-in-chief has not stated any details of the hospitalization. She relied upon the discharge summary issued by the Hospital at Ottapalam. The discharge summary of 11th December 2000 records that the deceased was suffering from hypertension, and cardiac disease. While giving discharge, the deceased was advised to get Gastroenterology and colonoscopy done. Except for referring to the said

14 osapp2a

discharge summary, the appellant stated nothing about the hospitalization of the deceased in

December 2000. In response to the question No.51 in the cross examination, she admitted that her

deceased husband was admitted to the hospital as he was suffering from Cancer. In response to Question No.52, she admitted that he was suffering from

Cancer for two years and his intestine was affected. In response to question No.53, she accepted that he was passing blood in the stool. When a suggestion

was given to her whether colonsocopy was done at

West Fort Hospital at Thrissur, she pleaded ignorance about it. She also pleaded ignorance

about the fact that her husband was taken from Ottapalam to the said hospital at Thrissur. Though the report of the colonoscopy conducted in the West

Fourt Hospital at Thrissur is on record, in response to the question No.68, she stated that her husband

was never taken from Ottapalam to Thrissur for diagnosis. In response to question No.73, she

accepted that in December 2000, the sickness of loosing blood had became serious. She accepted that in Ottapalam, the respondent visited the deceased. While responding to question No.84, she changed her

stand and stated that the deceased was brought to her house at Palaghat from Ottapalam Hospital and at that time, it was the respondent also accompanied them.

16 Thus, the respondent has brought on record that in December 2000, the deceased was suffering from serious ailments including Cancer. We must note

15 osapp2a

here that these facts were suppressed by the appellant in her petition as well as in her

affidavit in lieu of examination in chief.

17 There is one more factual aspect which was sought to be relied upon by the appellant-plaintiff. The Leave and Licence agreement was executed by the

deceased on 1st March 2001 in Mumbai in respect of the said Flat No.8 at Govandi. On this aspect, there was cross examination of the appellant. In

response to the question No.99, she stated that

after December 2000, the deceased did not travel to any place till his death. When she was confronted

with the Leave and Licence Agreement dated 1 st March 2001 which was allegedly executed in Mumbai, she stated that the deceased had not come to Mumbai for

signing the agreement at Exhibit-5. She stated that her husband received the said agreement by courier

at Palaghat and signed the same. When she was confronted with the fact the signatures of two

witnesses on the agreement were made at Mumbai, she pleaded ignorance about the signatures of the witnesses.

18 In the circumstances, we are of the view that the learned Single Judge was right in holding that the appellant has failed to discharge burden of proving the execution of the disputed Will. There are are number of suspicious circumstances brought on record by the respondent which were duly established. On close scrutiny of the oral and documentary evidence on record, we find no error in

16 osapp2a

the view taken by the learned Single Judge.

19 Accordingly, we pass the following order:

. The Appeal is dismissed. Interim relief which is operative till today, will continue to operate for twelve weeks from today.

                (P.D.NAIK,J.)                       (A.S.OKA,J.)