(Prayer: Petition filed under Sections 232 and 276 of the Indian Succession Act, XXXIX of 1925 read with Order XXV Rule 4 of Original Side Rules 1956, by the plaintiff praying for Letters of Administration with the will annexed may be granted to her having effect throughout the State of Tamil Nadu.)
1. The above Testamentary Original Suit is filed for issuance of Letters of Administration of the will dated 24.02.1997 which is annexed to the petition. The will was executed on 24.02.1997 by one K.V.Anthony. The testator died on 12.05.2000 leaving behind his wife, two daughters and three sons as his legal heirs. One of the daughters is the plaintiff. Though originally Original Petition was filed in view of the caveat filed by the first defendant, it was converted into the above Testamentary Original Suit.
2. The first defendant, who is the another daughter has filed written statement opposing the issuance of Letters of Administration. According to the first defendant, who is the sister of the plaintiff, there were so many mysterious and suspicious circumstances in the execution, registration and production of the will dated 24.02.1997. It was further stated that the will is not a true, valid and genuine document and it was fabricated as an after thought with an ulterior motive and malafide intention to snatch away the assets of the deceased. It is contended further that the father of the plaintiff and first defendant did not voluntarily executed the will and the same was obtained by exercising undue influence, coercion and misrepresentation. The deceased father of the first defendant, according to her, was not under sound state of mind, when the alleged will was executed. It is stated that already a civil suit was pending between the parties in O.S.No.1715 of 2001 on the file of the I Assistant Judge, City Civil Court, Chennai between the plaintiff and other defendants. The said suit was filed against the father K.V.Anthony, which was dismissed and confirmed in A.S.No.146 of 1998. According to the first defendant, the plaintiff has suppressed the said fact which also would dis-entitle her from getting a letters of administration. In view of the alleged suspicious circumstances in the execution of the will, it was prayed for dismissal of the suit.
3. In the additional written statement filed by the first defendant, it is stated that the will was obtained by the plaintiff secretly and surreptitiously in a suspicious manner fearing that if it is known to the family members, they would prevent the execution of the will in favour of the plaintiff. It is further stated that the second defendant, who is the brother of the plaintiff, also disputed the execution of the will. He has further contended that the testator has executed the will even discarding the mother of the plaintiff, that is the wife of the testator. Therefore, alleging fraud and foul play, the first defendant prayed for dismissal of the suit.
4. The plaintiff also had filed a reply statement stating that her mother had deserted her husband and lived away from him at Kerala and she was not with her mother during his last days. The fact that the mother had not filed any caveat shows that she did not have any objection in execution of the will in favour of the plaintiff. The first defendant was employed in Government service and also receiving pension and the second defendant was employed in Bahrain and earning well, the third defendant was also employed in Tamil Nadu Police Housing Corporation and well settled in his life. The fifth respondent in the Original Petition, who had not filed caveat was an ex-serviceman receiving pension. The plaintiff remained unmarried and unemployed and was taking care of her father. Hence, the father had bequeathed the property in her favour.
5. Based on the above pleadings, this Court formulated the following issues on 25.09.2007 :-
1. Whether the plaintiff is entitled for grant of Letters of Administration with respect to the suit schedule property namely a vacant house site with an extent of 880 sq.ft in Plot No.A.P.358 at Anna Nagar, Chennai - 600040 allotted by TNHB, Chennai based on the last will and testament dated 24.2.1997 executed by her father late K.V.Anthony, S/o.Verghees bequeathing therein the said property in favour of the plaintiff herein?
2. Whether the question of grant of Letters of Administration to the plaintiff on the basis of the alleged will dated 24.2.1997 can be considered and decided in respect of the property mentioned in the schedule to the will, without and before deciding the question of validity of deed of revocation dated 9.2.1988, revoking the Settlement Deed dated 27.6.1984, which is the subject matter of Second Appeal No.342 of 2006 since the alleged Will dated 24.2.1997 came into existence very much long after the date of Settlement Deed dated 27.6.1984 and is not the trial of this suit barred under Section 10 C.P.C.?
3. Whether the Testator had the right, title and power to execute the will in respect of the property mentioned in the schedule to the alleged will dated 24.2.1997 while there is already a registered Settlement Deed dated 27.6.1984 executed by the Testator settling the same property in favour of the first defendant?
4. Is not the petition for grant of Letters of Administration liable to be dismissed since the plaintiff has suppressed the existence of yet another Will alleged to have been executed by the deceased Testator in respect of a property at Kerala in her favour and for her false declaration in paragraph No.11 of the petition?
5. Is not the Will dated 24.2.1997 obtained by fraud, undue influence, coercion and misrepresentation exercised by the plaintiff?
6. Whether the will is a true, genuine and valid one and whether the executant of the will was under the sound disposing state of mind and understanding and memory power?
7. Is not the suit liable to be dismissed with the cost of the defendants?
8. To what reliefs the parties are entitled to?
6. A perusal of the will shows that the same is a registered one and was attested by two witnesses. The plaintiff has examined herself as P.W.1. The will has to be proved as per Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. In the chief examination, P.W.1 has stated that the testator, namely her father was hale and healthy on the date of execution of Ex.P1 - will. Two witnesses, namely A.Robert and K.Sathiamoorthy accompanied her father to the Sub Registrar's office on the date of registration of Ex.P1 - will. The plaintiff, being a spinster, was looking after her father till her death, as the mother was not living with the father.
7. In the cross examination, an attempt was made to bring out the reason for the bequest in favour of the plaintiff in exclusion of others. A suggestion was also put to the plaintiff that it was some other person who was identified before the Sub Registrar in the place of her father at the time of registration. However, in the absence of any pleading to that effect by the defendants 1 and 3, even such suggestion is not maintainable. Curiously, there is no denial of the signature in the will by the defendants.
8. One of the attesters namely A.Robert was examined in the proof of the will. He had specifically stated that he accompanied the testator to the Sub Registrar's office and another witness namely, K.Sathiamoorthy also accompanied him. He had also stated in the chief examination that the testator was in a sound and disposing state of mind. Even in the cross examination, P.W.2, the attestor, had stated that as follows:
...... It is not true to say that Ex.P.1 does not contain the signature of Anthony and that it is a forged document. Anthony has signed in Ex.P.1, after him, myself and one Sathyamoorthy have also signed and thereafter the officer also signed ....
9. At this juncture, it was contended by the learned Senior Counsel appearing for the defendants 2, 3 and 5 to 7 that nothing was stated about the second witness Sathiamoorthy and only one witness has been examined in proof of the will.
10. In response to the same, the learned Senior Counsel appearing for the plaintiff, placed his reliance on a judgment of the Honourable Supreme Court in RAMABAI PADMAKAR PATIL (DEAD) BY LRS AND OTHERS VS. RUKMINIBAI VISHNU VEKHANDE AND OTHERS [AIR 2003 SC 3109] wherein, in paragraph no.9, it was observed as follows:
9..........As discussed earlier, in view of Section 63 of Indian Succession Act the proviso to Section 68 of the Evidence Act, the requirement of law would be fully satisfied if only one of the attesting witness is examined to prove the Will. That this had been done in the present case by examining PW2 Raghunath Govind Sogale cannot be disputed. No infirmity of any kind had been found in the testimony of this witness. Chhaya Dighe merely typed the Will and she is not an attesting witness nor it is anybody's case that Smt. Yamunabai had put her thumb impression on the Will in her presence, therefore, her examination as a witness was wholly redundant. The mere non examination of the Advocate who was present at the time of preparation or registration of the Will cannot, by itself, be a ground to discard the same. The fact that Smt. Yamunabai was hard of hearing or that she was unable to walk does not lead to an inference that her mental faculties had been impaired or that she did not understand the contents of the document which she was executing. It is important to note that Smt. Yamunabai personally came to the office of the Sub-Registrar and her death took place after a considerable period i.e. 3 years and 9 months after the execution of the Will. No evidence has been adduced by the defendants to show that at the time of the execution of the Will she had been suffering from any such ailment which had impaired her mental faculties to such an extent that she was unable to understand the real nature of the document which she was executing. We are, therefore, clearly of the opinion that the finding recorded by the learned District Judge, which has been affirmed by the High Court in second appeal, is not based upon a correct application of legal principles governing the proof and acceptance of Will and the same is completely perverse. The aforesaid finding is accordingly set aside. The finding recorded by the trial Court that Will is genuine is hereby restored.
11. The next contention raised by the learned Senior Counsel for the defendants is that there was no reason for the testator to disinherit the other heirs and bequeath the property only in favour of the plaintiff. It has been time and again held that a will has to be executed only to alter the mode of succession and by the very nature of things it is bound to result in either reducing the share or depriving the share of the natural heir. If the testator intended to benefit all the heirs as per the law of succession, there is no necessity at all to execute a will. Therefore, if the will is written in favour only one of the heirs, who happens to be the propounder of the same, the burden is on the propounder of the will to remove all the suspicious circumstances. The suspicion means not the fact that the natural heirs have been excluded or lesser share has been given to them. The duty of the propounder of the will is to remove all the suspicious circumstances, only when there are real, germane and valid suspicious circumstances in the given situation. In the case on hand, merely because the plaintiff was given the property in exclusion of others, cannot be held to be suspicious circumstances. As stated earlier, the burden is on the plaintiff to establish the said ground.
12. Admittedly, the wife of the testator was not living with him till the last days and as stated in the reply statement of the plaintiff, each of the heirs of the testator had been in employment and were living at various places. The plaintiff was with her father till the last days and taking care of him. As mentioned earlier, when there is no dispute with respect to the signature of the testator on the will, the question of proof of execution does not arise, excepting that the burden is on the plaintiff that the suspicious circumstances have to be cleared. The suspicious circumstances does not include the surmises and conjunctures or the fantasy of the doubting mind. It should be a genuine doubt.
13. The plaintiff has proved that the testator had signed the will on his own in a sound disposing state of mind understanding the nature of the bequest. It is not the case of the defendants or is there any proof from their side to show that the mind of the testator was very feeble on the date of execution. Nevertheless, if a defence of fraud, coercion or undue influence is raised, the burden would be only on the caveator, who has to prove the same with cogent evidence with respect to the alleged circumstances. Though the defendants have raised the question of coercion and undue influence, they failed to establish the same. Hence, the will is proved as required under law under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. Therefore, the plaintiff is entitled for issuance of letters of administration.
14. As it is held in S.A.No.342 of 2006 that the settlement deed in favour of K.A.Mary - the deceased first defendant, executed on 27.06.1984 was without title to the executant, there was no valid conveyance of the property. When the transferor himself did not have a valid title, though he acquired the same subsequently, the conveyance under the settlement deed is invalid and the first defendant cannot get any title under the same.
15. In the light of the above observation and discussion, the present Testamentary Original Suit is decreed as prayed for and Letters of Administration in respect of the Will Ex.P.1 dated 24.02.1997 are granted. The plaintiff shall execute a bond for a sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) in favour of the Assistant Registrar (O.S.-II) High Court, Chennai - 600 104. This Court, taking into consideration the nature of relationship between the parties, is not inclined to award costs.