V. Periya Karuppiah, J.@mdashThis suit has been filed by the Petitioner in Testamentary O.P. No. 283 of 2002 against two Respondents. When it was in O.P. stage, second Respondent had filed a caveat against the grant of letters of administration on the last Will and Testament of Mr. M.K. Lakshmana Naicker and therefore, the Caveat was considered and the O.P. was converted into Testamentary Original Suit in T.O.S. No. 44 of 2002.
2. The brief facts of the Plaintiff mentioned in the plaint are as follows:
The Plaintiff is the grandson of the deceased testator Mr. M.K. Lakshmana Naicker and the first Respondent and the Defendant are the sons of the testator. The deceased left the first Respondent and Defendant as his surviving next kin according to law u/s 15(a) of the Hindu Succession Act. The testator Mr. M.K. Lakshmana Naicker died on 27.09.1999. The deceased at the time of his death left his 1/3rd share of the property at No. 17, Annapillai Street, 3rd lane, Sowcarpet, Chennai-79 and a Will was duly executed by him at Senal Village in Tiruvannamalai District on 01.07.1998 in the present of the witnesses and registered as Document No. 25 of 1998 at Sub-Registrar, Thellar, Thiruvannamalai District. By the said will, the deceased had not appointed any Executor. The wife and parents of the deceased were predeceased him. The amount of assets which is likely to come to the Plaintiff''s hands, does not exceed in the aggregate the sum of Rs. 1,00,000/- (Rupees One lakh only) and the net amount of the said assets, after deducting all items which the Plaintiff is by law allowed to deduct, is only of the value of Rs. 1,00,000/- (Rupees One lakh only). The Plaintiff undertakes to duly administer the property and credits of the said deceased Mr. M.K. Lakshmana Naicker in any way concerning his Will by paying first his debts and then the legacies therein bequeathed so far as the assets will extend and to make a full and true inventory thereof and exhibit the same in this Court within six months from the date of the grant of Letters of Administration with the Will annexed to the petition thereof and also to render to this Court a true account of the said property and credits within one year from the said date. Hence, the Plaintiff prays that the letters of administration with the Will annexed may be granted to him as the beneficiary under the Will of the said deceased having effect throughout the State of Tamil Nadu.
3. The contentions raised in the Written Statement filed by the Defendant are as follows:
The Defendant denied the allegations made in the O.P. except those which are specifically admitted therein and put the Plaintiff to the strict proof of the rest of the allegations. The Plaintiff is his brother''s son. The deceased Mr. M.K. Lakshmana Naicker is his father. The Defendant raised objection to the petition filed by the Plaintiff for the grant of letters of administration. The suit property was allotted to the share of his father deceased Mr. M.K. Lakshmana Naicker by way of registered partition deed, as Document No. 469 of 1956 dated 30.05.1956 on the file of the Sub-Registrar, Sowcarpet, Chennai. After the death of his father Mr. M.K. Lakshmana Naicker on 27.07.1999, except he and his brother first Respondent - the father of the Plaintiff, nobody has any interest in the suit property. During his last days, the deceased was under the clutches of the Plaintiff. Hence, the alleged Will is an outcome of undue influence and coercion which is an invalid one and the letters of administration as prayed for by the Plaintiff, cannot be granted. The suit is devoid of merits and just to grab the property, it has been filed vexatiously. Hence, the Defendant prayed for dismissal of the suit.
4. The contentions raised in the Additional Written Statement would be as follows:
The impugned Will is not genuine and true one. The recitals in the impugned Will is not true and the same do not reflect the mind of the testator for the reason that on 16.06.1998, the deceased Lakshmana Naicker executed and registered a partition Deed vide Document No. 1161 of 1998 registered on the file of the Sub-Registrar, Vandavasi, dated 16.06.1998 in respect of the landed properties situate in Mambattu Village, Vandavasi Taluk. At that time, he did not express any idea of disposition of the suit property at Chennai. When asked, the deceased expressed in the presence of both sons that he would write the disposition of the house at Chennai after some time. The Defendant denied the execution of the impugned Will. The propound of the ''Will'' has to be the execution of the Will by the ''deceased''. The Will is an unnatural one for the reason that the sons were disintegrated. The non-citation of one of the sons of the deceased Lakshmana Naicker proves the collusion between the Plaintiff and the other son, namely, M.A. Bhoobathy, who is non-else, the father of the Plaintiff. There was no necessity to execute the Will at Senal village and register the same in the office of the Sub-Registrar, Thellar, which itself shows the shrouds suspicion circumstances under which the impugned Will had come to existence. The deceased never whispered about the execution of the impugned Will. After the registration of the partition deed, his father - deceased Lakshmana Naicker stayed in the house of Samundeeswari, who is the sister of the Plaintiff, along with his brother - first Respondent and the Plaintiff. This is one of the circumstances which created suspicion about the genuineness of the impugned Will. Hence, the Defendant prayed this Court to dismiss the suit with exemplary costs.
5. On the basis of the pleadings of parties, the following issues were framed by this Court on 15.12.2003.
1) Whether the Will dated 01.07.1998 executed by M.K. Lakshmana Naicker is genuine, valid and enforceable one ?
2) Whether the Plaintiff is entitled to letters of administration?
6. Heard Mrs.K.M. Valsala, learned Counsel for the Plaintiff and Mr. A. Kothandaraman, learned Counsel for the Defendant.
7. Issue No. 1:
The O.P. has been converted into Testamentary Original Suit on the contest of the Defendant who filed a Caveat opposing the grant of letters of administration sought for by the Plaintiff in the said O.P. The claim of the Plaintiff is that the Plaintiff is the grand son of the testator Mr. Lakshmana Naicker and the son of the first Respondent and the Defendant is the junior paternal uncle and brother of the first Respondent and the property situated in Madras was belonging to the testator M.K. Lakshman Naicker ancestrally and he has got 1/3 share in the property and the first Respondent and the Defendant are also having 1/3 share each and the grandfather was looking after the Plaintiff since his mother died when he was eight years old and was brought up by the testator and therefore, he has got special affection over the Plaintiff and therefore he executed a Will in favour of the Plaintiff on 01.07.1998 in the presence of attesting witnesses when he was in a sound and disposing state of mind. However, the Defendant would contend that the testator being the father of the Defendant was not hale and healthy at the time of execution of the said Will and he was aged about 99 years and he was crawling to come over to Sub-Registrar Office, in an earlier point of time for executing a partition deed in respect of other properties between the Defendant, his brother the first Respondent and the testator and therefore he would not have understood what was written in the Will and he could not be in a sound and disposing state of mind to execute a Will. The further contention was to the effect that the testator was staying at the house of the sister of the Plaintiff at the time of execution of the Will and the registration was carried out even in the place where the property was not situated i.e., at Thellar Sub-Registrar Office, Thiruvannamalai District and therefore, it could be purely influenced by the Plaintiff by exercising undue influence and therefore the consent of the testator should not have been a free and genuine one. The further case would be that there could not any disposition of the ancestral property when the first Respondent and the Defendant are equally entitled to the said property.
8. The Plaintiff examined himself as PW.1 and examined two attesting witnesses as PW.2 and PW.3, in order to substantiate his case. He has also produced the death certificate of the testator as Ex.P1 and the Will as Ex.P2, on his side.
9. According to the submissions of the learned Counsel for the Plaintiff, the attesting witnesses PW.2 and PW.3 would speak about the sound and disposing state of mind of the testator and the testator''s hand was with mind in execution of the Will intending to bequeath the property and they also identified the signature of the testator as per the provisions of Section 68 of the Evidence Act and Section 63(c) of Indian Succession Act and nothing was established adverse to the case of the Plaintiff from the evidence of PW.2 and PW.3. The learned Counsel for the Plaintiff would further submit in her argument that the Defendant and his witness in their cross examination have categorically admitted that the health of the testator was sound and he was in a good state of condition till three days prior to his date of death, even though he was aged 99 years. She would draw the attention of the Court that the sound and disposing state of mind coupled with admission of Defendant''s witnesses would establish the execution of the Will by the testator and it would probabilize the requirements u/s 63(c) of the Indian Succession Act and Section 68 of the Indian Evidence Act. She would further submit that the testator had disposed his 1/3rd share in the suit property and he had not interfered with the respective 1/3rd shares of the first Respondent and the Defendant and therefore, the question of disposition of the ancestral property will not be a bar. She would also submit that even otherwise the title to the property cannot be gone into in a testamentary suit and the only point be seen is whether the Will was executed by the testator in a sound and disposing state of mind in the presence of the attesting witnesses. She would also submit that the evidence of PW.2 and PW.3 would go to prove the attestation and also the registration of the document in the Sub-Registrar Office, Thellar and the plea of the Defendant regarding undue influence, said to have been exercised for the execution of the Will should be dispelled by other evidence of the Defendant. Moreover, she would also submit that the alleged suspicious circumstances would not affect the execution of Will since the evidence of PW.2 and PW.3 are unassailable and they have proved the genuineness of the Will and whatever the suspicious circumstances the Defendant wants to introduce would be vanished in their evidence. She would also submit that if any dispute in respect of the title is to be disposed of, it should be done only in a separate suit.
10. While considering her arguments, I have to go through the objections raised by the learned Counsel for the Defendant. According to him, the testator could not have executed the Will except under the influence of the Plaintiff and their family members, since the execution of the Will was happened when he was staying at the house of the Plaintiff''s sister Samundeeswari at Sennal village. He would further submit that the testator, namely, the father, the Defendant and his brother - the first Respondent, entered into a partition deed, 15 days prior to the execution of the said Will and on that occasion the testator - father told the Defendant that he would also consider the partition of the house property, left out in the said partition and the said fact was spoken by D.W.1 and therefore the mind of the testator could not be free at the time of the execution of the Will and it should have been affected by undue influence and coercion. He would further submit that the Defendant was also in possession and enjoyment of the bequeathed property towards his share and there cannot be any exclusion of the Defendant by the bequest made in the Will. Therefore, the Will even though said to have been executed in the presence of the attesting witnesses is lacking for the genuine consent of the testator and for the clearance of suspicious circumstances. Therefore, he would request the Court not to rely upon the versions of the Plaintiff and his witnesses and to dismiss the suit.
11. While considering the submissions, I have to go through the principles of law laid down by the Hon''ble Apex Court reported in
10. Will being a document has to be proved by primary evidence except where the court permits a document to be proved by leading secondary evidence. Since it is required to be attested, as provided in Section 68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the attesting witnesses 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. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925. In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the Will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so.
In the said judgment, it has been stated that whenever the execution has been proved by adducing required evidence, it is for the person who had raised the plea of forgery, undue influence or coercion or fraud to discharge the said burden of proving.
12. When I apply the principles laid down in the aforesaid judgment, the evidence given by P.W.2 and PW.3 have to be scrutinised, in order to decide the issue. No doubt it is true that the testator was staying at the house of Plaintiff''s sister Samundeeswari at Sennal village, Thiruvannamalai District at the time of execution of the Will. According to the evidence of PW.2 and PW.3, the Will was executed at Thellar Sub-Registrar Office, where it was written and the testator came in the bus and had attended the Sub-Registrar Office and executed the same in the presence of attesting witnesses PW.2 and PW.3. The evidence of PW.2 and PW.3 are not lacking in proving the attestation as they speak to the effect that they have seen the testator signing the Will in all the pages and the testator also saw the subscription of the signatures by the attesting witnesses PW.2 and PW.3 along with yet another attesting witness, namely, Munidoss. Therefore, I do not find any lacunae in the evidence of PW.2 and PW.3 regarding the execution of the Will through their attestation. They have also spoken to the effect that the document was presented for registration before the Sub-Registrar, Thellar and they also identified the executant (testator) before the Sub-Registrar for registration. Their evidence have not been shattered in the cross examination. Nothing was elicited on the side of the Defendant from their evidence to show that the testator was not in sound and disposing state of mind during the course of execution or registration. As already argued by the learned Counsel for the Plaintiff, the witnesses of the Defendant themselves have admitted that the testator was hale and healthy at the time of execution of the Will and even after the execution of the Will on 01.07.1998. It is also an admitted fact, the testator thereafter came and resided at Madras for nearly six months at the house of the Defendant and thereafter at the house of the Defendant and the first Respondent, till his death. In the said circumstances, I could find that the Will was executed by the testator in a sound and disposing state of mind and the testator gave free and genuine consent for execution of the said Will. The Defendant had miserably failed to prove that the consent of the testator was obtained by exercising undue influence, coercion and fraud.
13. In the said circumstances, the judgment of the Hon''ble Apex Court cited above would lay down that it is the duty and burden on the part of the Defendant to disprove the Will by proving the undue influence. The Defendant as DW.1 would categorically admit in his evidence that there was no adverse attitude for his father against him. When the evidence of DW.1 was to the effect how the testator would be carried away by undue influence by the Plaintiff, who is none other than the grand son of the testator. It is also not disputed that the mother of the Plaintiff died when the Plaintiff was eight years old and the Plaintiff was brought up only by the testator being the grand father of the Plaintiff. In the said circumstances, no one can sit over the wishes of the testator against his wish to bequeath his property to whom he is willing i.e., the Plaintiff. When the consent is found to be free and genuine, I unable to consider that the exclusion of the Defendant from inheriting the property would create any suspicion. Nor the place of registration, which is outside the city of Madras would create any suspicion. Furthermore, the jurisdictional Sub-Registrar Office for the Sennal village where the Plaintiff and his sister are living, the close relatives of the testator, would be Thellar Sub-Registrar Office. Therefore, the shifting of Sub-Registrar Office would not be a ground for raising any suspicious circumstances.
14. The question raised by the learned Counsel for the Defendant that all the relatives and the family members of the testator should be made as a party as per Section 278 of Indian Succession Act is concerned, the judgment of the Hon''ble Apex Court reported in
15. As submitted by the learned Counsel for the Plaintiff that the probate court is only confined to determine the genuineness of the Will executed by the testator in a sound and disposing state of mind without exercising undue influence or coercion and was duly attested and it is not the jurisdiction of the Testamentary Court to determine the right or authority of the testator to dispose of the property which he purported to bequeath under the Will. The judgment of the Hon''ble Apex Court reported in
10. ...The Probate Court is also not competent to determine the question of title to the suit properties nor will it go into the question whether the suit properties bequeathed by his Will. The Probate Court is also not competent to determine the question of title to the suit properties nor will it go into the question whether the suit properties bequeathed by the Will were joint ancestral properties or acquired properties of the testator.
11. In
In Ishwardeo Narain Singh v. Smt. Kamta Devi, this Court held that the Court of probate is only concerned with the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution, the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. "Therefore, the only issue in a probate proceeding relates to the genuineness and due execution of the Will and the Court itself is under duty to determine it and perverse the Original Will in its custody. The Succession Act is a self contained code insofar as the question of making an Application for probate, grant or refusal of probate or an Appeal carried against the decision of the Probate Court. This is clearly, manifested in the fascicule of the provisions of the Act. The Probate proceedings shall be conducted by the Probate Court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the Will annexed establishes, conclusively as to the appointment of the executor and the valid execution of the Will. Thus, it does no more than establish the factum of the Will. Thus, it does no more than establish the factum of the Will and the legal character of the executor. Probate Court does not decide any question of title or of the existence of the property itself.
(Emphasis supplied)
It is made clear in the judgment of the Hon''ble Apex Court that the testamentary Court has no competency to go through the title of the testator for coming to a conclusion in a testamentary suit. In the said circumstances, I am of the considered view that the Will dated 01.07.1998 exhibited as Ex.P2 in this case was executed by the testator in a sound and disposing state of mind in the presence of attesting witnesses without the exercise of any undue influence, coercion. Accordingly, this issue is decided in favour of the Plaintiff.
16. Issue No. 2:
In view of my findings reached in Issue No. 1 that the Will (Ex.P2) has been proved to be a valid and genuine one executed by the testator Mr. M.K. Lakshmana Naicker in a sound and disposing state of mind and in the presence of attesting witnesses without any undue influence, coercion exercised by the Plaintiff, the Plaintiff is entitled for grant of letters of administration. Therefore, the suit filed by the Plaintiff for that purpose is decreed as prayed for without costs. Accordingly the Registry to issue letters of administration in favour of the Plaintiff after annexing the copy of the Will Ex.P.2 with the said Letters of Administration.
Therefore, it is hereby ordered that (a) the letters of administration shall be issued in favour of the Plaintiff in respect of the properties mentioned in the said Will.
(b) The Plaintiff is directed to duly administer the said properties of the deceased.
(d) The Plaintiff is also directed to execute a security bond for a sum of Rs. 25,000/- (Rupees twenty five thousand only) in favour of the Assistant Registrar (O.S-II), High Court, Madras.
(e) The Plaintiff is further directed to render true and correct accounts once in a year.
Considering the relationship between the parties there is no orders as to costs. Consequently, connected Miscellaneous Petition is closed.
