JUDGEMENT
1. The unsuccessful defendants before the First Appellate Court are the appellants herein in the Second Appeal.
2. One Periyanayagi Ammal, was the plaintiff in O.S.No.23 of 1990 on the file of the Subordinate Court, Ariyalur. She filed the suit for partition of her half share in the suit property and for other reliefs. It was her case that the suit property originally belonged to her husband-Danaraj Padayachi, and he died leaving behind herself and three sons by name Murugesan, Kanappan and Chakkravathi, as his legal heirs. Originally, the suit property was allotted to the son Chakravathi, who was the husband of the first appellant. The said Chakravathi, died in the year 1988, leaving behind first appellant and the plaintiff, as his legal heirs and in the suit property, the first appellant and the deceased/plaintiff had claimed share and therefore, the deceased/plaintiff was entitled to the undivided half share in the suit property. The first appellant sold the property to the second appellant, who is none other than her husband's brother and under the said sale deed, the first appellant sold the entire property, as if she is the absolute owner of the entire properties and therefore, the deceased/plaintiff filed the suit for partition.
3. The appellants contested the suit stating that the said Chakkravathi, had a son, who died earlier and the husband of the first appellant viz., Chakkravathi, was suffering from some ailment and for that purpose, the first appellant incurred some expenses. Therefore, in order to pay debts, incurred by the first appellant's husband for his medical treatment and to carry out the last rites, the property was sold to the second appellant and hence, the sale is valid and the same cannot be questioned by the deceased/plaintiff. During the pendency of the suit, the plaintiff died leaving behind a registered Will, by which she bequeathed her share in the suit properties and other properties in favour of her grandson, viz., the respondent herein, who was impleaded as second plaintiff in the suit on the basis of the Will and thereafter, the appellants filed additional statement stating that the Will was not executed, when the deceased/plaintiff was in a sound and disposing state of mind and the Will was not validly executed. Hence, the respondent herein cannot claim any right under the said Will.
4. The Trial Court held that the Will viz., Ex.A5., was not a valid Will, as there were suspicious circumstances in the execution of the Will and the attesting witnesses, were interested witness and the mother of maternal grandfather of the respondent herein had taken active part in the execution of the Will. Therefore, the Will was not a valid Will and therefore, the respondent cannot claim any right under the Will and dismissed the suit.
5. The Trial Court further held that the first appellant did not have any male child through her husband, who died at the tender age and the property was not sold for the expenses incurred by the husband of the first appellant for his treatment and as the deceased/plaintiff died intestate, her half share devolved upon equally among the three sons,and therefore, the respondent will not get any right over the suit property.
6. Aggrieved by the said judgement and decree, the respondent preferred an appeal in A.S.No.10 of 1997, on the file of the Principal District Judge, Trichy and the Learned Principal District Judge, allowed the appeal, holing that the Will was executed by the testatrix, while she was in a sound disposing state of mind and there was no suspicious circumstances in the execution of the Will and therefore, the Will had came into effect, after the death of the testatrix viz., deceased/ plaintiff and as per the Will, the respondent got half share in the property.
7. Against the said judgement and decree, this Second Appeal is filed appellants/defendants.
8. At the time of admitting the Second Appeal, the following substantial questions of law were framed by this Court:-
i) Whether the judgment of the Lower Appellate Court is vitiated, in not adverting to the various circumstances relied on by the Trial Court, before reversing the said judgment that Ex.A5, Will is not a true one?
ii) In view of the various vitiating circumstances viz., the discrepancy in the evidence of P.Ws.2 and 3 and the fact that the attestors P.Ws 2 and 3 are the Pannayal and father of P.W.1, the mother of the beneficiary of the Will, whether Ex.A5, Will can be accepted as a true and genuine one?
9. It is submitted by Mr.K.Chandramouli, the Learned Senior Counsel appearing for the appellants that the Lower Appellate failed to appreciate the suspicious circumstances under which the Will was executed and erred in holding that the Will was validly executed by the testatrix while she was in a sound disposing state of mind. The Learned Senior Counsel also submitted that P.W.1,was the mother of the legatee viz., the respondent herein. P.W.2, one of the attesting witneses was admittedly the servant, employed in the house of the deceased/ plaintiff. P.W.3 other attesting witness is none other than the maternal grandfather of the respondent.
10. The Learned Senior Counsel further submitted that it is admitted by P.W.1 and P.W.3, that they went along with the testatrix, while the Will was prepared and registered and they have also admitted that they had taken active part in the preparation of the Will and under the Will, the legal heirs were dis-inherited and the property was given to the grandson and considering all these aspects, the Trial Court had rightly held that the Will was not valid. In support of his contention, the Learned Senior Counsel also relied upon the judgments reported in A.I.R. 1959 S.CC. 443 in the case of (H.Venkatachala Iyengar v. B.N.Thimmajamma and others) A.I.R. 1977 S.C.C. 74 in the case of ( Jaswant Kaur v. Amrit Kaur and others) and A.I.R. 1990 S.C.C. 396 in the case of ( Kalyan Singh v. Smt. Chhoti and others).
11.Per contra, Mr.M.V.Krishnan, the learned counsel appearing for the respondent submitted that there is no suspicious circumstance in the execution of the Will and in the normal course of events, as a prudent woman, the Will was executed by the testatrix, in favour of her grandson viz., the respondent herein.
12. The learned counsel appearing for the respondent further submitted that in this case, it is admitted that the suit was filed by the testatrix, claiming her half share in the suit property. It is stated in the plaint that she was not properly looked after by the first appellant and she was driven out of the house and therefore, she filed the suit for partition claiming half share in her son's property. It is also admitted that the first appellant had sold the property including the share of the testatrix, in favour of the second appellant, who is none other than the brother of the first appellant's husband, who is one of the sons of the testatrix and the second appellant also purchased the said property, knowing fully well that the first appellant has half share in the suit property and his mother, the testatrix has got the remaining half share in the property. Therefore, learned counsel submitted that the testatrix having been frustrated by the conduct of the appellants decided to give the property to her grandson and executed the Will in his favour. Therefore, there is no suspicious circumstances in excluding her son and wife of the deceased son. The learned counsel would rather say that the testatrix was just and fair in excluding the sons in bequeathing the property to the respondent.
13. Heard both sides.
14. The Learned Senior Counsel appearing for the appellants took me through the evidence of P.W.1 to P.W.3 and pointed out that it is admitted by P.W.1 and 3 that they went along with the testatrix and they were present, when the Will was executed and therefore, they had played an active role in the execution of the Will and the beneficiary is none other than the son of P.W.1 and grandson to P.W.3. Therefore, it can be stated that the propounder, had taken active part in the execution of the Will and in such circumstances, it has been held that the Will was executed under suspicious circumstances and the Will can be relied upon.
15.The Learned Senior Counsel appearing for the appellants further frankly submitted that P.W.2, one of the attesting witnesses and P.W.3, another attesting witness have given evidence about the due execution of the Will and they repeated about the execution like a parrot and though they technically proved the due execution of the Will as per Section 63 of the Indian Succession Act, having regard to the suspicious circumstance stated above, the Will cannot be said to have been proved and the respondent cannot claim any right under the Will.
16. I am unable to agree with the submissions of the Learned Senior Counsel for the appellant. No doubt, in the judgments relied upon by the Learned Senior Counsel, the law had been laid down by the Hon'ble Supreme Court that when there are suspicious circumstance in the execution of the Will, the Will shall not be taken into consideration and therefore, any person claiming right under the Will, will not get any title. But the peculiar facts and circumstances of the case cited are different and having regard facts of the present case on hand, it cannot be stated that there are suspicious circumstances in the execution of the Will nor the propounder of the Will played an active role in the execution of the Will, so as to influence the mind of the testatrix.
17. As stated supra and as rightly contended by the learned counsel appearing for the respondent, the suit was filed by the testatrix, claiming her half share in the suit property. Admittedly, the suit property belonged to her son Chakravathi, the husband of the first appellant, the brother of the second appellant and the said Chakkravathi, died intestate leaving behind the first appellant and testatrix, as his heirs and therefore, each are entitled to half share in the property.
18. Nevertheless, the first appellant without giving due share to the testatrix, the deceased/ plaintiff, sold the entire property to the second appellant, who also accepted the sale deed, knowing fully well that the first appellant has only undivided half share in the suit property. Therefore, it is made clear that by the conduct of the appellants and with a view to deprive the rights of the deceased/ plaintiff, the testatrix, of her half share in the property, the sale deed was executed by the first appellant in favour of the second appellant. Hence, the testatrix filed the suit for partition, by engaging a Counsel and during the pendency of the suit, she died. Even prior to the filing of the suit, the testatrix sent notices to the appellants stating that she is entitled to half share in the suit property, as she was not taken proper care by the appellants and the appellants sent a reply and thereafter, on 23.05.1990, the Will was executed by the testatrix and the same was registered in the Sub Registrar Office. The suit was filed on 02.02.1990 and the testatrix died on 09.02.1993, i.e., three years, after the filing of the suit. Though it was contended by the appellants in the additional statement that the testatrix was not in sound disposing state of mind when she executed the Will, in the written statement filed by the them, they have not questioned the mental capacity of the testatrix while filing the suit for partition nor they raised any plea of undue influence exerted by P.W.1 & P.W.3, on the testatrix in filing the suit. Therefore, it is made clear that when the suit was filed on 02.02.1990, the testatrix was in a sound and disposing state of mind and on 23.05.1990, she executed the registered Will bequeathing her property in favour of the respondent. Therefore, it cannot be held that the testatrix was not in a sound and disposing state of mind at the time of execution of the Will.
19. The arguments advanced by the Learned Senior Counsel was that when the propounders viz., the mother and grandfather of the beneficiary took active part in the execution of the Will, it amounts to suspicious circumstance and therefore, the Will ought not to have been believed. In the judgment reported in A.I.R. (2005) S.C.C. 4362 in the case of ( Pentakota Satyanarayana and others v. Pentakota Seetharathnam and others) it has been held that active participation and execution of Will by propounders/ beneficiaries by itself is not sufficient to create any doubt either about testamentary capacity or genuineness of Will.
20. In the judgement reported in A.I.R. 2005 S.C. 52 in the case of [ Meenakshiammal (deceased by Lrs and others v. Chandrasekaran and another] it has been held that when the propounders of the Will proved that the Will was signed by the testator and the testator was in a sound disposing state of mind and the testator has reasons to exclude the children of his real sister, when his relationship with the real sister was not cordial and when they have not taken proper care of him in his old age and bequeathing the property to the grand children would not amount to suspicious circumstances. In this case also, admittedly, prior to the filing of the suit, the testatrix issued notices asking the appellants to give her half share in the suit property and that was denied by the appellants and knowing fully well that the testatrix had half share in the suit property, the first appellant sold the property to the second appellant. Therefore, it is clear that the intention of the appellants was to deprive the testatrix of her due share in the suit property and therefore, she has got every valid reasons to disinherit the second appellant and the widow of the deceased son and bequeath the properly in favour of her grandson.
21. Admittedly, the respondent was a minor and the respondent's mother is none other than the daughter-in-law of the testatrix and therefore, she had taken the testatrix along with her father to the Register Office. The respondent's mother, has made it clear in her evidence that she was not aware that her mother-in-law was going to execute the Will in favour of her son. Therefore, having regard to the said relationship between the parties, according to me, there is no suspicion in requesting the mother and grandfather of the respondent, to accompany her to the Registrar Office. P.W.2, is an independent witness and he has also spoken about the due execution of the Will and his evidence was corroborated by the evidence of P.W.3. Further, the suit was already filed by the testatrix claiming half share and therefore, there is nothing strange in giving the details of the property to the Document Writer by the testatrix and it is stated by P.W.1 that she was having a copy of the plaint, while dictating the contents of the Will to the Document Writer. Further, it is stated by P.W.1 to P.W.3, that when the document was presented before the Sub Registrar, the Sub Registrar enquired about the contents of the document to the testatrix and on being satisfied with the statement given by the testatrix, the Will was registered in favour of the respondent. In the judgment reported in (1995) 4 S.C.C. 459 in the case of ( Rabindra Nath Mukherjee v. Panchanan Banerjee) the Hon'ble Supreme Court has held that deprivation of right of the natural heirs by the testatrix is not by itself a suspicious circumstance and when the contents of the Will were explained by the Sub-Registrar to the testatrix and the testatrix understood the same and admitted the execution of the Will, the fact that witnesses to the documents were interested and an active part was played by a close relation of one of the executors, will not amount to suspicious circumstance.
22. Considering all these aspects, I am of the opinion that the Will viz., Ex.A5, has been validly executed by the testatrix and it was also proved by the respondent and there is no suspicious circumstances questioning the execution of the Will and the Substantial questions of law are therefore answered against the appellants.
23. In the result, the judgment and decree of the First Appellate Court is confirmed by setting aside the judgement and decree of the Trial Court. Therefore, this Second Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.