J. Mathew (Died) and ors. Vs. Leela Joseph - Court Judgment

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family -will - undue influence - proof of execution of will -- section 63 of indian succession act -- section 68 of evidence act -- appeal by defendants, sons of testator through first wife, against granting letters of administration of the will to the plaintiff, sons of testator through second wife, on ground that the will executed was not genuine as it was under coercion and undue influence - held, a person who makes allegation as to genuineness of will is required to prove such allegation to the hilt -- mere proof of signature on the will and proof of attestation thereof by the two attesting witnesses as envisaged in section 63 of the indian succession act and as required to be proved under section 68 of the evidence act may not amount to proof of execution of the will -- propounder of the will required to prove that the testator has signed the will after understanding the contents thereof or after understanding the nature of disposition -- hence, it has to be determined in the first instant that whether the plaintiff has proved the execution of the will -- when the will is registered, the court can justifiably infer about proper execution of a document, coupled with other relevant circumstances -- in the present case, from the evidence of registration and admission of testator about the execution of will and from the statement of attesting witness regarding due attestation and the fact that the testator admittedly knew english and the will contains an endorsement that such will was prepared by the testator, it could be concluded prima facie that the will was executed by the testator -- further, if defendants alleged that will was outcome of undue influence exercised by plaintiff it was for them to prove the same -- hence, no doubt about bona fides of the plaintiff or the genuineness of the will -- appeal dismissed - p.k. misra, j.1. original defendants 1 and 2 have filed this appeal against the judgment and decree of the learned single judge in t.o.s. no. 43 of 1995 granting letters of administration of the will dated 6.5.1992. during pendency of the appeal, appellant no. 1 has expired and his legal representatives have been brought on record.2. genealogy relevant to the case is as follows:joseph swaminathan leela josephrosary (first wife) (2nd wife)| ||____________________________________________|__________| | | |1. j. mathew(d1) 2. j. damien(d2) 1. malarkodi 2. ezhilarasison son| |3. jayanthi 4. isabelladaughter daughterthe will is purported to be executed by one p. joseph swaminathan. original defendants 1 and 2 are the two sons of said joseph swaminathan through first wife. two daughters were also born through first wife. after the death of first wife, joseph swaminathan married leela joseph, who filed o.p. no. 410 of 1995 for grant of letters of administration, which was subsequently on contest converted into t.o.s. no. 43 of 1995. through second wife, deceased had also two daughters. four daughters, first two born through first wife and the later two born through second wife had filed affidavits supporting grant of probate and such probate proceedings was contested only by two sons born through first wife. the will sought to be probated is dated 6.5.1992 it was presented for registration on 11.5.1992 and registered as document no. 18 of 1992 on 12.5.1992. in the said will there is specific recital relating to earlier registered will dated 9.8.1990 and in the later will it is specifically recited that earlier will stands cancelled.3. in the written statement filed by defendant no. 1 it was stated that the alleged will purported to have been executed by the deceased is a forged will and brought up will and his father did not execute the will nor sign the same. it was further stated that one of the properties at no. 38, thayar sahib street, chennai 2, stood in the name of his mother late rosaline joseph, was earmarked for the benefit of defendant no. 1, the eldest son, and he was in possession of the same ever since the death of his mother in 1971. it was stated that:.recitals in the present will making contradictory claim even in respect of the said property and his allotted share therein and his entitlement to the same under an alleged will of his deceased wife exposes the false nature of the present will and establishes that the will in question is not a genuine one. it was further stated that the first defendant had sold his property to pay the dues to the income tax department with the knowledge of the deceased and, therefore, the deceased could not have executed the will. it is specifically averred that joseph swaminathan was very old, senile and was sick. he was aged 80 years and he had severe cardiac arrest and due to old age and illness, he was not at all in sound disposing state of mind at the time of execution of the will. it is further stated that his father did not execute the present will voluntarily or in sound disposing state of mind. sometime after the marriage, the plaintiff converted her religion from roman catholic to pentecoste and she was under the influence of one john working at neyveli. originally the deceased got enraged because of such conversion and sent her from the house and subsequently she and others prevailed upon the deceased and brainwashed to the extent that the deceased himself became pentecoste. because of the influence of the plaintiff and mr. john of neyveli and because of fragile health and advanced age, the defendants' father was wont over and prevailed upon by the plaintiff to create such a document purported to be a will and such will has been brought about by fraud, misrepresentation and undue influence by the plaintiff and others and such will has been created and not a genuine document. the will was not at all executed by the defendant's father and there are false recitals in the will. 4. the second defendant denies the allegation about due execution of the will and stated that the will alleged to have been executed by joseph swaminathan was not a true and valid testament and was not executed when he was in a sound stand of mind. the will was got executed by fraud and undue influence. 5. on the aforesaid pleadings, the learned single judge framed the following issues:1. whether the will has been properly executed ?2. whether the will was executed under coercion and under undue influence ?3. is not the plaintiff entitled for letters of administration ?4. to what relief the parties are entitled to ?6. while dealing with all the issues together, learned single judge found that there was due execution of the will and it was not the outcome of any undue influence. accordingly, the learned single judge directed grant of letters of administration on the plaintiff executing a security bond for a sum of rs. 1,00,000/-. hence the present appeal.7. as already noticed, during pendency of the appeal, first defendant being expired, his legal representatives have been brought on record and they have appeared through their advocate mr. t. viswanatha rao.8. arguments have been advanced by mr. t. viswanatha rao on behalf of appellants 3 to 5 / substituted appellants, legal representatives of defendant no. 1, and by ms. sujatha rangarajan on behalf of original appellant no. 2.9. it is the contention of both the counsels appearing for the appellants that the plaintiff has failed to prove the due execution of the will and on the basis of materials on record it should be held that the will was the outcome of undue influence exercised by the plaintiff. learned counsel appearing for original appellant no. 2, while supplementing the submissions made on behalf of the legal representatives of original appellant no. 1 by producing another will, has submitted that in fact there was still another will executed in the year 1988, which has been suppressed by all concerned. she further contended that during pendency of the proceedings, the plaintiff and four daughters of the deceased have executed an agreement / sale deed in respect of half portion of the disputed property at mylapore, which had been given to the plaintiff as her life estate and half of which was to be inherited by two sons and the other half has to be inherited by four daughters. learned counsel further submitted that the very fact that the property has been alienated, even when life estate has been provided, indicates the intention of the plaintiff to grab the property by any means.10. while attacking the findings of the learned single judge regarding execution of the will, learned counsels for the appellants have submitted that evidence on record does not prove that the deceased had signed the will voluntarily after understanding the contents thereof and, therefore, it cannot be said that execution of the will has been proved by the plaintiff. in this connection, it is further submitted that there are many suspicious circumstances surrounding the will which have not been explained, which militated against the genuineness of the will.11. in support of the plea regarding execution of the will, the plaintiff examined herself as p.w.1 and one of the attesting witnesses as p.w.2. p.w.2 has stated that his signature is found as second attesting witness and also as second identifying witness. p.w.2 has stated that he has signed in the office of the sub-registrar and one mr. kabali also signed in ex.p-1 will. he further stated to have seen joseph swaminathan signing the will. in cross-examination he stated that he had chit transaction along with m/s. leela joseph (plaintiff). he has further stated that the signature was put by him in the sub-registrar's office and not in the house of the testator. he has specifically stated that the testator himself and kabali signed the will only in the registrar's office. he had specifically stated that in the registrar's office also the will was not read out and explained. on the basis of such statement, learned counsels for the appellants submitted that the evidence of the attesting witness does not clearly establish the execution of the document as the witness has no where stated that the executant had signed the purported will after understanding the contents thereof. it is further stated that even though the will is dated 6.5.1992 and purported to have been signed in the house of the testator, the evidence of the attesting witness shows as if the will was signed only in the sub-registrar's office on a subsequent date, namely, 11.5.1992, which creates doubt regarding proper execution and authenticity of the will.12. it is of course true that, if the statement of the attesting witness alone is taken into consideration, one may come to a conclusion that execution of the will has not been properly proved because the evidence of the attesting witness merely indicates that the testator had signed the document in presence of the attesting witnesses and the attesting witnesses had signed the document in presence of the testator and such evidence does not indicate that the testator had put his signature after understanding the contents of the document.13. the mere fact that signature of a person is proved on a document does not necessarily mean that the person who has signed the document has done so after understanding the contents of the document. in our considered opinion, the expression 'execution' does not merely means the signature, but means that the executant or the person who puts the signature has done so after understanding the contents of the document. in other words, it has to be proved said that the hand which had signed the document was with the mind.14. in : air1959sc443 h. venkatachala iyengar v. b.n. thimmajamma and ors., it was observed:19. however, there is one important feature which distinguishes will from other documents. unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. the propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. in other words the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.15. in : [1975]1scr687 surendra pal and ors. v. dr (mrs.) saraswati arora and anr., it was observed:7. the propounder has to show that the will was signed by the testator; that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the 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 there may be cases in which the execution of the will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the will are not the result of the testator's free will and mind. in all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the will is accepted. again in cases where the propounder has himself taken a prominent part in the execution of the will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. after all, ultimately it is the conscience of the court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which is reasonable man may, in the relevant circumstances of the case, entertain.16. in : (2005)1scc40 daulat ram and ors. v. sodha and ors., it was observed: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.17. similar view was also expressed in : air2005sc4362 pentakota satyanarayana and ors. v. pentakota seetharatnam and ors. and (2005) 8 scc 784 sridevi and ors. v. jayaraja shetty and ors. all these decisions were followed in 2007 2 l.w. 870 b. venkatamuni v. c.j. ayodhya ram singh and ors.18. similarly in : air2007sc614 niranjan umeschandra joshi v. mridula jyoti rao and ors., it was observed by the supreme court as follows:32. the burden of proof that the will has been validly executed and is a genuine document is on the propounder. the propounder is also required to prove that the testator has signed the will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. if sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. but, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. in the case of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. however, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. see madhukar d. shende v. tarabai shedage : 2002(139)elt6(sc) and sridevi and ors. v. jayaraja shetty and ors. : air2005sc780 . subject to the above, proof of a will does not ordinarily differ from that of proving any other document.19. apart from these decisions, reference can also be made to the decision of the supreme court in : [1998]2scr486 gurdial kaur 7 ors. v. kartar kaur and ors. wherein it was observed:4. the law is well settled that the conscience of the court must be satisfied that the will in question was not only executed and attested in the manner required under the indian succession act, 1925 but it should also be found that the said will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the will. therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the will to dispel the suspicious circumstance. as in the facts and circumstances of the case, the court of appeal below did not accept the valid execution of the will by indicating reasons and coming to a specific finding that suspicion had not been dispelled to the satisfaction of the court and such finding of the court of appeal below has also been upheld by the high court by the impugned judgment, we do not find any reason to interfere with such decision. this appeal, therefore, fails and is dismissed without any order as to costs. 20. a perusal of the aforesaid decisions makes it clear that mere proof of signature on the will and proof of attestation thereof by the two attesting witnesses as envisaged in section 63 of the indian succession act and as required to be proved under section 68 of the evidence act may not amount to proof of execution of the will. the propounder of the will is required to prove that the testator has signed the will after understanding the contents thereof or after understanding the nature of disposition. keeping in view the aforesaid well settled principle, it has to be seen whether the plaintiff has proved the execution of the will. as already indicated, evidence of the attesting witness merely proved the signature of the testator and also proved the attestation of the two attesting witnesses. but, from the said evidence it is not at all apparent that the will has been signed by the testator after understanding the contents thereof. this conclusion is not the end of the matter. 21. execution of the will can not only be proved by direct evidence such as evidence to the effect that the testator has himself written the will or the will has been scribed or typed according to the instructions of the testator or that the will has been read over and explained to the testator whereafter he puts his signature, but also through the mouth of the person present at the time of execution of the will or the scribe or the attesting witness, as the case may be. the execution of the will can also be inferred from other surrounding circumstances. 22. in the present case, the will has been registered and it contains an endorsement to the effect that execution of the will has been admitted. as observed by the supreme court in 2007 2 l.w.870 (cited supra), such endorsement has got some value. this is not to suggest that merely because a will is registered, the court is required to come to an inexorable conclusion that due execution of the will is proved and it is genuine. 23. the will is not required to be registered. the fact that the will is registered does not amount to conclusive evidence of due execution of such will. if a particular document is registered, there is no guarantee that such a document is duly executed or a genuine document. however, keeping in view the presumption that official act must have been done regularly and keeping in view the provisions contained in sections 58, 59 and 60 of the registration act, the court can justifiably infer about proper execution of a document, where it is registered, coupled with other relevant circumstances. in this connection we can only refer to the observation of the supreme court made in : [1962]3scr195 rani purnima debi and anr. v. kumar khagendra narayan deb and anr.:23. there is no doubt that if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. but the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. if the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the will. but if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the will) that the testator knew that it was a will the execution of which he was admitting, the fact that the will was registered would not be of much value. it is not unknown that registration may take place without the executant really knowing what he was registering. law reports are full of cases in which registered wills have not been acted upon : (see, for example, vellaswamy servai v. sivaraman servai , surendra nath v. jnanendra nath : air1932cal574 and girja datt singh v. gangotri datt singh (s) : air1955sc346 . therefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a will; though the fact that there has been registration would be an important circumstance in favour of the will being genuine if the evidence as to registration establishes that the testator admitted the execution of the will after knowing that it was a will the execution of which he was admitting.24. in the present case, apart from the admission of execution before the sub-registrar, it appears that the testator had stated about the execution of such will before d.w.3, who is admittedly a family friend, relative as well as the tenant. d.w.3 has been examined by defendant no. 1 to prove that a registered will had been executed in the year 1990 under which d.w.3 had been appointed as an executor. he has also been examined to prove that there was some misunderstanding between the testator and d.w.3 at some point of time, which was the handiwork of the plaintiff, the second wife of the testator and further that such misunderstanding was subsequently cleared. he has stated in examination-in-chief that '....after our relations were improved in 1993 when i had discussion with him in the year 1994, he informed me that he executed a will in the year 1992 and he intended to make changes in the same. he also informed me that he had executed the will a bit harshly and hence he wanted to make slight changes and alterations and exercise some leniency. he also informed me that he had executed the said will in the year 1992 when he was in a confused state of mind.'25. from such evidence of d.w.3, it is apparent that the testator had admitted about the execution of the will now sought to be proved. such statement coupled with the inference available from the fact of registration and the statement of attesting witness regarding due attestation and the fact that the testator admittedly knew english and the will contains an endorsement that such will was prepared by the testator himself, prima facie prove the execution of the will by the testator. of course as rightly contended by the learned counsels for the appellants, the burden is also on the plaintiff to dispel any suspicious circumstance surrounding the execution of the will. this position of law is also clear from the ratio of the decisions which have already been extracted.26. learned counsels for the appellants have pointed out that the very fact that one attesting witness, who was close to the plaintiff, was brought from neyveli to attest the will is a suspicious circumstance. the attesting witness has stated that he was known to the testator and his wife and he had often come to meet them at chennai. he has further stated that at that particular time testator requested him to stay back for one more day and to attest the document subsequently in the sub-registrar's office. it is obvious that one would ordinarily get a document, particularly a document like will, to be attested by a person known to the testator and because such attesting witness happens to be close to the plaintiff is not by itself a suspicious circumstance of such importance so as to negate the effect of the will, execution of which apparently has been proved. in this context it is also to be kept in view that specific plea of the defendants was to the effect that the will was the outcome of the undue influence exercised by the plaintiff. law is well settled that a person who makes such allegation is required to prove such allegation to the hilt. as evident from the decision of the supreme court in : air1955sc346 girja datt singh v. gangotri datt singh, it is for the caveator, who alleges undue influence or fraud, to prove such allegation. from the said decision it is also apparent that every influence is not necessarily an undue influence.27. learned counsel for the appellants has simply pointed out that there are some recitals in the will which clearly point out that the wife of the testator was poisoning the mind of the testator. we have closely examined the nature of disposition made under the will. from the will it is apparent that the wife, who is supposed to have unduly influenced the mind of her husband, has not apparently been treated in a very partial manner. one has to remember that under the law of succession applicable to christians, a wife in normal course has got right to inherit 1/3rd of the property. in the present case, one property has been bestowed in equal proportion to all the heirs, namely, wife, two sons and two daughters through the first wife as well as two daughters through the second wife. if there would have been exercise of undue influence, one would have expected a more partial disposition in favour of second wife and two daughters born through her rather than giving equal share to two sons and two daughters born through first wife. similarly, in respect of mylapore property, the testator has only given a life estate in favour of second wife and has made provisions for inheritance of half of such property after the lifetime of the wife by two sons born through first wife and the other half is to be inherited by four daughters, two daughters through first wife and two daughters through second wife. again in such disposition, one cannot discover any partiality or leaning towards second wife or to the children of second wife. similarly, another property in kumbakonam has been given to two grand-daughters viz., priya and jenefare through first wife. this again dispels any hint of favoritism towards second wife or her children, as such there is nothing unnatural in the disposition made.28. learned counsel for the appellants contended that evidence of d.w.3 discloses as if the testator was in a confused mind at the time of execution of the will. testator was very old being aged about 80 and had just recovered from severe heart attack for which he was hospitalised and was even unconscious for a few days. it is of course true that there is a recital in the will that the testator had remained unconscious for five days, but admittedly he was discharged from the hospital and thereafter the will was executed after about six months. even after execution of the will, he had lived for another three years and even in 1994 it was acknowledged before d.w.3 that he wanted to make some minor alterations in the will. we do not think that these circumstances would indicate that the testator was not in a sound disposing state of mind in may, 1992, when the will was executed and registered. 29. learned counsel appearing for original defendant no. 2 (appellant no. 2), in addition to the submission made by the learned counsel for appellant nos. 3 to 5, has submitted that the will executed in the year 1988 was suppressed would disprove the case of the plaintiff. in course of hearing, learned counsel has produced a copy of the will. we do not think that such document can be simply accepted without even an application for additional evidence. moreover, even assuming that there was a registered will in 1988, once it is proved that in 1992 another registered will was executed, the will of the year 1988, if any, cannot be of any effect.30. learned counsel appearing for the appellants 3 to 5 has submitted that even during pendency of the proceedings, the plaintiff and four other beneficiaries, namely, four daughters, have executed agreement/sale deed in favour of a builder. we find in the will that the property is bestowed on the second wife during lifetime and thereafter half of the property described specifically is to be inherited by two sons and other half is to be inherited by four daughters. it is no doubt true that a person in whose favour life estate is created under a will may not have any right to alienate such property or even if such person alienates, the alienation may not endure beyond the lifetime of such person. however, in the present case, alienation is not only by the life estate holder, but also by four persons who have to succeed on the death of the life estate holder. since all the presumptive heirs joined in sale of half share of the property, we do not think such alienation can even create doubt regarding the bonafides of the plaintiff or the genuineness of the will. it is of course true that, as noticed by the learned single judge, there are certain minor contradictory discrepancies in the statement of p.ws., however, we do not find by and large that such minor discrepancies have the effect of discarding the will.31. for the aforesaid reasons, we do not find any merit in this appeal, which is accordingly dismissed. no costs.