Dr. Lodd Surendardas Vs. Lodd Narendradas and Lodd Jayendradas - Court Judgment

SooperKanoon Citationsooperkanoon.com/830142
SubjectFamily
CourtChennai High Court
Decided OnJun-16-2009
Case NumberOriginal Side Appeal No. 182 of 2003
JudgeK. Raviraja Pandian and ;P.P.S. Janarthana Raja, JJ.
Reported in(2009)5MLJ747
ActsSuccession Act - Sections 63 and 68; Evidence Act
AppellantDr. Lodd Surendardas
RespondentLodd Narendradas and Lodd Jayendradas
Appellant AdvocateN. Varadarajan, Adv.
Respondent AdvocateA. Seshan, Adv.
DispositionAppeal dismissed
Cases ReferredJoyce Primrose Prestor v. Vera Narue Vas
Excerpt:
- constitution of india article 141; [a.p. shah, c.j., f.m. ibrahim kaliffulla &v. ramasubramanian, jj] reference to larger bench - precedent - full bench decision held, it is binding on the division bench. only if the full bench comes to conclusion that earlier full bench decision is incorrect, there is scope for making reference to larger bench. division bench doubting correctness of full bench decision cannot direct registry for placing papers before chief justice to make reference to larger bench. k. raviraja pandian, j.1. the correctness of the judgment and decree of the learned single judge granting probate of the last will and testament of lodd balamukundas to the respondents herein, is canvassed in this appeal.2. the respondents herein along with their mother yashoda bai filed a probate application before this court in respect of the last will and testament of lodd balamukundas for grant of probate. as the appellant herein filed caveat. the probate application has been converted into tos and numbered as 25 of 1997. it is the case of the respondents/plaintiffs that the husband of the first plaintiff and the father of the second and third plaintiffs one lodd balamukundas executed his last will on 02.03.1975 at madras. one of the sons of the testator dr. lodd surendradas has contested the suit by contending that the said will was not true, valid and binding on him; that the same was not executed by his father in a sound and disposing state of mind; that there was no valid execution and attestation as required by law and there are several suspicious circumstances attending on the execution of the will. the learned single judge, after taking into consideration the evidence adduced on the side of the plaintiffs, viz., p.ws 1 to 3 and the documents exs.p.1 to p.5 and taking into consideration the holography nature of the will, has granted the relief of probate. this appeal is at the instance of the defendant challenging the grant of probate.3. the appellant/defendant has raised the very same contention before this court to the effect that the father was not in a sound and disposing state of mind at the time of execution of the will; that there was no valid execution and attestation of the will as required by law; and that there are several suspicious circumstances surrounding the will.4. on the other hand, learned counsel appearing for the respondents/plaintiffs argued to sustain the order of the learned single judge.5. heard the learned counsel on either side and perused the materials available on record.6. in the case of like nature, the line of judgments say in one voice that the onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court for the court to accept the will as genuine. even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. the suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the will to show that the testator's mind was not free. in such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. if the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. (see indu bala bose v. manindra chandra bose : [1982]1scr1188 ).7. the legal requirement in terms of sections 63 and 68 of the indian succession act is now well settled. a will like any other document is to be proved in terms of the provisions of the indian succession act and indian evidence act. the onus of proving is on the propounder. the testamentary capacity of the propounder must be established. the execution of the will by the testator has to be proved. atleast, one attesting witness is required to be examined for the purpose of proving the execution of the will. however, it is also required to be shown that the will has been signed by the testator with his free will and that at the relevant time he was in the sound disposing state of mind and understood the nature and effect of disposition. it is also required to be established that he has signed the will in the presence of two attesting witnesses, who attested his signature in his presence or in the presence of each other. only when there exist suspicious circumstances, the onus would be on the propounder to explain to the satisfaction of the court before it could be accepted as genuine. (see savithri v. karthyayani amma (2007) 11 scc 621).8. by having this settled principle in mind, let us consider the present case with reference to the materials made available. the will was dated 02.03.1975. the testator died on 19.02.1981. the will has been marked as ex.p.1. it is an unregistered one. plaintiffs 2 and 3 have examined themselves as p.ws. 1 and 2. one of the attesting witnesses is examined as p.w.3. the plaintiffs/respondents have also filed an affidavit before this court and taken on record stating that all his sisters have consented for granting probate in favour of the plaintiffs. both p.ws.1 and 2 deposed that their father lodd balamukundas was active and not suffering from any illness and was in a sound and disposing state of mind till his lifetime. p.w.1 has categorically deposed that his father was attending to the maintenance of his house and all other works till his lifetime; that he used to visit his daughters residing in north india for quite number of occasions; and that he used to go alone by train. further it is on evidence of p.w.1 that the testator used to go to pilgrimage and was managing all the family properties. apart from that, he used to attend to the cases pending before the city civil court in o.s. nos. 4346 of 1974 and 5399 of 1974 and deposed in those cases, which were disposed on 05.01.1976. the above evidence of p.w.1 has not been disputed by the appellant/defendant by adducing any contra evidence. as a matter of fact, on the side of the appellant/defendant none was examined and no document was marked.9. from the above available evidence, the court could come to the one and only conclusion that at the time of execution of the will on 02.03.1975 the testator was well in a sound and disposing state of mind.10. one of the attesting witness mr. m.k. hidayathullah, who is a practising advocate of this court from the year 1972 was examined as p.w.3. he has deposed in his evidence that he was closely associated with one mr. a. venkatesan, who is also an advocate right from the year of service in the year 1972. the testator lodd balamukundas was a standing client of mr. venkatesan, who brought ex.p.1 will to the residence of mr. venkatesan and informed him that he has already prepared a will and consulted mr. venkatesan as to whether the will was in order and p.w.3 m.k. hidayathullah gave his consent to attest the will. p.w.3 also deposed that the testator signed in ex.p.1 will in the presence of himself, mr. venkatesan and other attesting witnesses dayal prasad and p.w.3 signed as the attesting witness which was followed by the second attesting witness dayal prasad. at the time of execution of the will by the testator, both the attesting witnesses were present. the affidavit sworn by p.w.3 narrating all the necessary facts as to the execution and attestation of the will has been filed by the respondent. from the evidence of p.w.3, it is evident that at the time of execution of the will, the testator was in a good physical and mental condition and execution and attestation have also been spoken to clearly. here again, the defendant/appellant thoroughly failed to show any reason or circumstance to disbelieve the evidence of p.w.3. hence, the second contention that the will is not properly executed and not attested falls to ground.11. the will ex.p.1 is in the handwriting of the testator of lodd balamukundas. one of the attesting witness, a practising lawyer of this court p.w.3 has categorically deposed that ex.p.1 the testament was executed by the testator in his presence. it is pertinent to state here that neither the handwriting nor the signature of the testator is disputed by the defendant. it is settled principle of law that in the case of holographic will, presumption is all the more greater in favour of the genuineness of the will. useful reference can be had to the decision of the apex court in the case of joyce primrose prestor v. vera narue vas (1996) 9 scc 324. in the present case, the whole of the will is in the handwriting of the testator. the handwriting of the testator is clear and firm, though there are certain over-writings found in almost all the lines, which cannot be attributed to any other presumption, but to the age of the testator and definitely not against the genuineness of the will.12. the recital in the will would clearly indicate that it was the outcome of free will and volition of the testator. in the testament the testator has given life estate to his wife yasodha bai and thereafter the property would go to all his five daughters after retaining some properties for the charities to be done in his name. in addition to that, the testament carries a recital to the effect that the testator was in a proper health and proper mind and understanding and executed the testament.13. incidentally it should be stated that throughout the proceedings, it is not the case of the appellant/defendant that the plaintiffs had any role to play or they had participated in the preparation of ex.p.1 will. it is not even suggested that p.ws.1 and 2 were present at the time of the execution or attestation of the document. as already stated, the testament under challenge was executed by the testator on 02.03.1975 and that he died on 19.02.1981 as evidenced by ex.p.2. from that it is clear that after the execution of the document the testator lived for six years during which period he had attended to litigation and participated in the proceedings by giving evidence before the court of law. it is also not the case of the appellant/defendant that the will is the outcome of any invalidating factor like undue influence, coercion or misrepresentation, etc. if that be the case, the testator could have revoked or cancelled the will as he has lived for six years after the execution of the will with sound disposing state of mind.14. above all, as stated already, except the mere averment raised in the written statement the appellant/defendant has not adduced any evidence either oral or documentary.15. in the above stated circumstances, we are of the view that the contentions of the appellant/defendant that the testator was not in sound and disposing state of mind; that there was no valid execution and attestation of the will and that there are several suspicious circumstances attached to the execution of the will are raised only for the purpose of the case. we do not find any merit in the appeal to interfere with the judgment of the learned single judge. the appeal deserves to be dismissed and it is accordingly dismissed. however, there will be no order as to costs.
Judgment:

K. Raviraja Pandian, J.

1. The correctness of the judgment and decree of the learned single Judge granting probate of the last Will and testament of Lodd Balamukundas to the respondents herein, is canvassed in this appeal.

2. The respondents herein along with their mother Yashoda Bai filed a probate application before this Court in respect of the last Will and testament of Lodd Balamukundas for grant of probate. As the appellant herein filed caveat. the probate application has been converted into TOS and numbered as 25 of 1997. It is the case of the respondents/plaintiffs that the husband of the first plaintiff and the father of the second and third plaintiffs one Lodd Balamukundas executed his last Will on 02.03.1975 at Madras. One of the sons of the testator Dr. Lodd Surendradas has contested the suit by contending that the said Will was not true, valid and binding on him; that the same was not executed by his father in a sound and disposing state of mind; that there was no valid execution and attestation as required by law and there are several suspicious circumstances attending on the execution of the Will. The learned single Judge, after taking into consideration the evidence adduced on the side of the plaintiffs, viz., P.Ws 1 to 3 and the documents Exs.P.1 to P.5 and taking into consideration the holography nature of the Will, has granted the relief of probate. This appeal is at the instance of the defendant challenging the grant of probate.

3. The appellant/defendant has raised the very same contention before this Court to the effect that the father was not in a sound and disposing state of mind at the time of execution of the Will; that there was no valid execution and attestation of the Will as required by law; and that there are several suspicious circumstances surrounding the Will.

4. On the other hand, learned Counsel appearing for the respondents/plaintiffs argued to sustain the order of the learned single Judge.

5. Heard the learned Counsel on either side and perused the materials available on record.

6. In the case of like nature, the line of judgments say in one voice that the onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court for the court to accept the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. (See Indu Bala Bose v. Manindra Chandra Bose : [1982]1SCR1188 ).

7. The legal requirement in terms of Sections 63 and 68 of the Indian Succession Act is now well settled. A Will like any other document is to be proved in terms of the provisions of the Indian Succession Act and Indian Evidence Act. The onus of proving is on the propounder. The testamentary capacity of the propounder must be established. The execution of the Will by the testator has to be proved. Atleast, one attesting witness is required to be examined for the purpose of proving the execution of the Will. However, it is also required to be shown that the Will has been signed by the testator with his free Will and that at the relevant time he was in the sound disposing state of mind and understood the nature and effect of disposition. It is also required to be established that he has signed the Will in the presence of two attesting witnesses, who attested his signature in his presence or in the presence of each other. Only when there exist suspicious circumstances, the onus would be on the propounder to explain to the satisfaction of the Court before it could be accepted as genuine. (See Savithri v. Karthyayani Amma (2007) 11 SCC 621).

8. By having this settled principle in mind, let us consider the present case with reference to the materials made available. The Will was dated 02.03.1975. The testator died on 19.02.1981. The Will has been marked as Ex.P.1. It is an unregistered one. Plaintiffs 2 and 3 have examined themselves as P.Ws. 1 and 2. One of the attesting witnesses is examined as P.W.3. The plaintiffs/respondents have also filed an affidavit before this Court and taken on record stating that all his sisters have consented for granting probate in favour of the plaintiffs. Both P.Ws.1 and 2 deposed that their father Lodd Balamukundas was active and not suffering from any illness and was in a sound and disposing state of mind till his lifetime. P.W.1 has categorically deposed that his father was attending to the maintenance of his house and all other works till his lifetime; that he used to visit his daughters residing in North India for quite number of occasions; and that he used to go alone by train. Further it is on evidence of P.W.1 that the testator used to go to pilgrimage and was managing all the family properties. Apart from that, he used to attend to the cases pending before the City Civil Court in O.S. Nos. 4346 of 1974 and 5399 of 1974 and deposed in those cases, which were disposed on 05.01.1976. The above evidence of P.W.1 has not been disputed by the appellant/defendant by adducing any contra evidence. As a matter of fact, on the side of the appellant/defendant none was examined and no document was marked.

9. From the above available evidence, the Court could come to the one and only conclusion that at the time of execution of the Will on 02.03.1975 the testator was well in a sound and disposing state of mind.

10. One of the attesting witness Mr. M.K. Hidayathullah, who is a practising advocate of this Court from the year 1972 was examined as P.W.3. He has deposed in his evidence that he was closely associated with one Mr. A. Venkatesan, who is also an advocate right from the year of service in the year 1972. The testator Lodd Balamukundas was a standing client of Mr. Venkatesan, who brought Ex.P.1 Will to the residence of Mr. Venkatesan and informed him that he has already prepared a Will and consulted Mr. Venkatesan as to whether the Will was in order and P.W.3 M.K. Hidayathullah gave his consent to attest the Will. P.W.3 also deposed that the testator signed in Ex.P.1 Will in the presence of himself, Mr. Venkatesan and other attesting witnesses Dayal Prasad and P.W.3 signed as the attesting witness which was followed by the second attesting witness Dayal Prasad. At the time of execution of the Will by the testator, both the attesting witnesses were present. The affidavit sworn by P.W.3 narrating all the necessary facts as to the execution and attestation of the Will has been filed by the respondent. From the evidence of P.W.3, it is evident that at the time of execution of the Will, the testator was in a good physical and mental condition and execution and attestation have also been spoken to clearly. Here again, the defendant/appellant thoroughly failed to show any reason or circumstance to disbelieve the evidence of P.W.3. Hence, the second contention that the Will is not properly executed and not attested falls to ground.

11. The Will Ex.P.1 is in the handwriting of the testator of Lodd Balamukundas. One of the attesting witness, a practising lawyer of this Court P.W.3 has categorically deposed that Ex.P.1 the testament was executed by the testator in his presence. It is pertinent to state here that neither the handwriting nor the signature of the testator is disputed by the defendant. It is settled principle of law that in the case of holographic Will, presumption is all the more greater in favour of the genuineness of the Will. Useful reference can be had to the decision of the apex Court in the case of Joyce Primrose Prestor v. Vera Narue Vas (1996) 9 SCC 324. In the present case, the whole of the Will is in the handwriting of the testator. The handwriting of the testator is clear and firm, though there are certain over-writings found in almost all the lines, which cannot be attributed to any other presumption, but to the age of the testator and definitely not against the genuineness of the Will.

12. The recital in the Will would clearly indicate that it was the outcome of free will and volition of the testator. In the testament the testator has given life estate to his wife Yasodha Bai and thereafter the property would go to all his five daughters after retaining some properties for the charities to be done in his name. In addition to that, the testament carries a recital to the effect that the testator was in a proper health and proper mind and understanding and executed the testament.

13. Incidentally it should be stated that throughout the proceedings, it is not the case of the appellant/defendant that the plaintiffs had any role to play or they had participated in the preparation of Ex.P.1 Will. It is not even suggested that P.Ws.1 and 2 were present at the time of the execution or attestation of the document. As already stated, the testament under challenge was executed by the testator on 02.03.1975 and that he died on 19.02.1981 as evidenced by Ex.P.2. From that it is clear that after the execution of the document the testator lived for six years during which period he had attended to litigation and participated in the proceedings by giving evidence before the Court of law. It is also not the case of the appellant/defendant that the Will is the outcome of any invalidating factor like undue influence, coercion or misrepresentation, etc. If that be the case, the testator could have revoked or cancelled the Will as he has lived for six years after the execution of the Will with sound disposing state of mind.

14. Above all, as stated already, except the mere averment raised in the written statement the appellant/defendant has not adduced any evidence either oral or documentary.

15. In the above stated circumstances, we are of the view that the contentions of the appellant/defendant that the testator was not in sound and disposing state of mind; that there was no valid execution and attestation of the Will and that there are several suspicious circumstances attached to the execution of the Will are raised only for the purpose of the case. We do not find any merit in the appeal to interfere with the judgment of the learned single Judge. The appeal deserves to be dismissed and it is accordingly dismissed. However, there Will be no order as to costs.