Madras High Court
R. Ananthi vs Shanthakumari on 24 September, 2021
A.S.No.380 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.09.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
A.S.No.380 of 2017
and
C.M.P.Nos.14282, 15954 and 15955 of 2017
R. Ananthi ... Appellant/Defendant
Vs.
Shanthakumari ... Respondent/Plaintiff
PRAYER: Appeal Suit filed under Section 96 read with Order 41
Rule 1 of the Code of Civil Procedure against the Judgment and
Decree dated 17.09.2014 passed in O.S.No.38 of 2012 by the
learned Principal District Judge, Chengalpattu.
For Appellant : Mr.V.Ramamurthy
For Respondent : Mr.Udayakumar
JUDGMENT
The unsuccessful respondent in a Probate proceedings is the
appellant before this Court. The proceedings were originally filed as
Probate O.P.No.56 of 2007 and thereafter on the respondent
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A.S.No.380 of 2017
contesting the Will the same had been converted into a Original Suit
and numbered as O.S.No.38 of 2012 by the learned Principal District
Judge, Chengalpattu. The parties are referred to in the same array
as in the Testamentary Suit.
2.It is necessary to allude to the facts which have given rise to
this First Appeal as follows:
PETITIONER'S CASE:
The plaintiff and one N.Sathiyamurthy are siblings.
N.Sathiyamurthy was residing at Maraimalainagar where he passed
away on 24.11.2006. His father had pre-deceased him on
03.03.1970 and his mother died on 05.12.1993. The petitioner is the
elder sister of the said N.Sathiyamurthy. On 05.11.2006, the said
Sathiyamurthy had executed a Will in a sound disposing state of
mind bequeathing his properties both movable and immovable in
favour of his sister, the plaintiff herein. The plaintiff would submit
that though the defendant who was married to the said
Sathiyamurthy had separated from him there was no dissolution of
marriage. However, they had executed a mutual separation deed on
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A.S.No.380 of 2017
13.07.2002 and from the said date, the defendant has not been living
with the said Sathiyamurthy. The said Sathiyamurthy had narrated
these facts in his last Will and testament as the reason for not
including the respondent in the bequest. Therefore, the proceedings
for probate was filed by the plaintiff which was later converted as a
suit.
3.On receiving summons in the above suit O.S.No.38 of 2012
from the learned Principal District Judge, Chengalpattu, the
defendant had filed a counter inter alia contending that the Will was
fabricated at the behest of the petitioner. The testator was always
under the influence of alcohol and also a vagabond and these were
the reasons as to why the respondent has to leave her matrimonial
home. However, the marriage between the two had not been
dissolved in the manner known to Law. She had denied the
Agreement dated 13.07.2002 and would state that even if such a
document is available the same does not bring to an end the
matrimonial relationship between the deceased testator and herself.
She would submit that the Will has been executed in suspicious
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A.S.No.380 of 2017
circumstances with the defendant alleging that the beneficiaries had
taken an active role in its execution. She would therefore submit
that the Will cannot be given effect to and therefore sought to have
the suit be dismissed.
4.The defendant has also filed an additional counter in which
she would submit that she was constrained to file an additional
counter and she was depressed and shocked due to the sudden
demise of her husband on 24.11.2006. In the additional counter, she
would submit that the dissolution of marriage Agreement dated
13.07.2002 is void ab initio the marriage between herself and her
husband had been solemnised as per the Hindu Rites and Customs
and therefore, its dissolution can also be only under the provisions
of the Hindu Law and cannot be by way of an Agreement between
the parties which does not have the stamp of approval of a Court of
Law. The respondent had once again reiterated the suspicious
circumstances since the testator had died within a short time after the
execution of the Will.
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A.S.No.380 of 2017
5.The learned Principal District Judge had framed the
following issues:
(1)Whether the Will dated 05.11.2006 is a true
one and valid in Law?
(2)Whether the letter of probate has to be granted
as prayed for by the plaintiff?
(3)The plaintiff is entitled to what relief?
6.The plaintiff has examined herself as PW1 and has also
examined the attesting witness and others as PW2 to PW4 and had
marked Ex.P.1 to Ex.P.6. On the side of the defendant, the
defendant had examined herself as RW1 and her niece as RW2. She
had marked Ex.R.1 and Ex.R.2 to highlight the manipulation by the
plaintiff.
7.On considering the evidence both oral and documentary on
record, the learned Judge came to the conclusion that the plaintiff
had proved the execution of the Will in the manner known to Law
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A.S.No.380 of 2017
and the defendant who had questioned the Will on the ground of
suspicious circumstances has failed to prove the same. Challenging
the said Judgment and Decree, the respondent has filed this Appeal.
8.On hearing the submissions of both the Counsels, the
following Point arises for consideration in the above First Appeal:
“(1)Whether the petitioner has proved the
execution of the Ex.P.1 - Will in the manner
known to Law and the same has been executed by
the deceased testator in a sound disposing state of
mind?
(2)Whether there exists suspicious
circumstances in the execution of Ex.P.1 - Will?”
9.Mr.V.Ramamurthy, learned counsel appearing on behalf of
the plaintiff would strenuously contend that the execution of the
Will Ex.B.1 was shrouded in suspicious circumstances for the
following reasons:
(a)The marriage between the respondent and the deceased
testator had not been dissolved in the manner known to Law.
(b)The Will had been executed on 05.11.2006 and the testator
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A.S.No.380 of 2017
had died on 24.11.2006 within a period of 11 days from the date of
execution of the Will. This coupled with the facts that in the Will,
the deceased testator had stated about his ill-health would definitely
create room for suspicion.
(c)The petitioner had manipulated the Voters ID by claiming
herself to the wife of the deceased testator and one Cheralathan as
his son.
(d)The deceased testator was in the habit of signing in English
language whereas the Will has been signed in Vernacular.
10.This would clearly go a long way to support the case of the
plaintiff that Ex.P.1 - Will is the product of the manipulation of the
plaintiff herein. He would also rely on the following Judgments in
support of his case that once the suspicious circumstances have been
pleaded the onus lies on the propounder of the Will to disprove these
suspicious circumstances:
(1)(2008) 7 MLJ 238 (Mary and Others v.
Adaikkalasamy and others) at Para 18
(2)(2004) 7 SCC 107 [Dayamathi Bai Vs. K.M.
Shaffi] at Paras13 to 15.
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A.S.No.380 of 2017
11.Per contra, Mr.S. Udayakumar, learned counsel appearing
on behalf of the plaintiff would submit that the Ex.P.1 – Will has
been proved by examining the attesting witnesses. The learned
counsel would further contend that the defendant had not been able
to rebut the evidence of the attesting witness PW2–
Thiru.Manoharan. The said witness has clearly deposed about the
execution of the Will by the deceased testator and the fact that he
had seen the testator's sign and the testator had also seen the two
witnesses attesting the Will. He has also deposed that the deceased
testator was in a sound disposing state of mind when he had
executed the Will.
12.The learned counsel would also contend that the plaintiff
had proved the Agreement dated 13.07.2002 executed by the
respondent and the deceased testator which brought to an end the
matrimonial relationship between them and by which they had
decided to part ways by examining PW3, one of the witnesses to the
document Ex.P.4. He would therefore submit that the Judgment of
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A.S.No.380 of 2017
the learned District Judge does not require a re-consideration and the
appeal therefore is liable to be dismissed.
13.Heard the counsels and perused the records.
14.It is a well settled proposition that it is the propounder of
the Will who has to prove the due execution of the Will and the fact
that the person executing the testamentary disposition was in a
sound disposing state of mind when he had affixed his signature to
the said Will. In order to appreciate the same, the following
provisions have to be considered:
“Section 68 in The Indian Evidence Act:
68. Proof of execution of document required
by law to be attested.—If a document is required by
law to be attested, it shall not be used as evidence
until one attesting witness at least has been called
for the purpose of proving its execution, if there be
an attesting witness alive, and subject to the process
of the Court and capable of giving evidence:
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A.S.No.380 of 2017
[Provided that it shall not be necessary to call
an attesting witness in proof of the execution of any
document, not being a Will, which has been
registered in accordance with the provisions of the
Indian Registration Act, 1908 (16 of 1908), unless its
execution by the person by whom it purports to have
been executed is specifically denied.]
Section 63(c) of the Indian Succession Act:
Execution of unprivileged Wills. —Every testator,
not being a soldier employed in an expedition or
engaged in actual warfare, 12 [or an airman so
employed or engaged,] or a mariner at sea, shall
execute his Will according to the following rules:—
(a) The testator shall sign or shall affix his
mark to the Will, or it shall be signed by some other
person in his presence and by his direction.
(b) The signature or mark of the testator, or
the signature of the person signing for him, shall be
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A.S.No.380 of 2017
so placed that it shall appear that it was intended
thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more
witnesses, each of whom has seen the testator sign
or affix his mark to the Will or has seen some other
person sign the Will, in the presence and by the
direction of the testator, or has received from the
testator a personal acknowledgment of his signature
or mark, or the signature of such other person; and
each of the witnesses shall sign the Will in the
presence of the testator, but it shall not be necessary
that more than one witness be present at the same
time, and no particular form of attestation shall be
necessary.”
15.Let us now examine if the Will Ex.P.1 has been proved as
per the above dicta. The plaintiff has examined PW2 who is the
attesting witness of Ex.P.1, he has clearly deposed to the fact that he
had affixed his signature as an attesting witness followed by one
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A.S.No.380 of 2017
Rajkumar. In his cross examination, he has been in a position to
show his close relationship with the deceased testator. The defendant
has not been able to elicit any admission by the witness to disprove
the contention of the witness that the deceased testator had executed
the Will in a sound disposing state of mind and fully understanding
the contents thereof. Therefore, the plaintiff had successfully proved
the execution of the Will and the fact that the testator was in a sound
disposing state of mind. Therefore, the first Point for Consideration
is held in favour of the plaintiff.
16.The defendant who has come forward with the contentions
that the execution of the Will is shrouded in suspicious
circumstances attempts to prove the active involvement and the
manipulation by the petitioner by marking Ex.R.1 and Ex.R.2
through RW2. The marking of all these documents were objected
to and they were marked subject to objections as they are not
certified copies issued by the Authorities. To consider the same, the
document does not contain any official seal to show that it is an
authenticated document which has been procured from the
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A.S.No.380 of 2017
Authorities concerned, which in the instant case is the Tamil Nadu
Civil Supplies Corporation Limited. Except for contending that the
Will has been executed in suspicious circumstances, the respondent
has not been able to prove the fact that (a)the deceased testator was
not in a sound disposing state of mind and (b)he was suffering from
health condition/mental condition which made it impossible for him
to execute a Will comprehending its contents as well as its purport.
When Ex.P.1 – Will is read as a whole the testator has given cogent
reasons as to why he had excluded the defendant and executed the
Will in favour of his sister. He has spoken about his separation from
the respondent and the fact that they have not reunited. Therefore, it
is clearly evident that the deceased testator has decided to bequeath
his property both movable and immovable in favour of his sister and
in order to avoid any future litigation he had decided to execute
Ex.P.1 – Will. In the light of the above, the defendant having failed
to prove her case about suspicious circumstances and that the
testator was not in a sound disposing state of mind, the 2nd Point for
Consideration is answered against the respondent.
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A.S.No.380 of 2017
As a result of the above, this Appeal Suit is dismissed. The
Judgment and Decree of the learned Principal District Judge,
Chengalpattu, is confirmed, however, there shall be no order as to
costs. Consequently, connected Miscellaneous Petitions are closed.
24.09.2021
Index : Yes/No
Internet : Yes/No
mps
To
The Principal District Judge,
Chengalpattu.
https://www.mhc.tn.gov.in/judis
A.S.No.380 of 2017
P.T. ASHA, J,
mps
A.S.No.380 of 2017 &
C.M.P.Nos.14282, 15954
and 15955 of 2017
24.09.2021
https://www.mhc.tn.gov.in/judis
