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TMI Blog2023 (4) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... ntary Original Suit in T.O.S.No.97 of 2015. 3. The facts admitted as between the parties are as hereunder: (1) Late Dharmambal @ Pattamal was the sister of Mr.Ganesan, who is none else than the father of the appellants herein. (2) The respondents in the Original Petition are the daughter of Late Dharmambal @ Pattamal and mother of the appellants respectively. (3) Dharmambal @ Pattamal died on 27.07.2009. 4. The parties have no dispute with regard to relationship amongst themselves. It is the case of the appellants that the property which is the subject matter of the registered Will dated 06.03.2005 was actually purchased only by their father Mr.Ganesan, in the name of his only sister, the testatrix i.e., Dharmambal @ Pattammal. Only acknowledging and recognizing the fact that the testatrix was only holding the property as a benami for her brother, the Will came to be executed by the testatrix. It is the further case of the appellants that even the loan obtained for meeting a portion of the sale consideration was met only by their father Ganesan and the testatrix was not even possessed of sufficient funds to either purchase the property or service the loan. 5. It is also st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent examined herself as D.W.1 and Exs.D1 to D3 were marked. The learned Single Judge, on appreciating the oral and documentary evidence available, found that the Will was not proved in the manner known to law and proceeded to answer all the three issues against the appellants. Aggrieved by the findings of the learned Single Judge, the appellants preferred the above intra Court Appeal on the following grounds: a) The Will was duly executed and also registered and had been proved in the manner known to law. b) The learned Single Judge failed to appreciate the evidence on record which clearly established due execution and attestation of the Will. The learned Single Judge erred in suspecting the genuineness of the Will on the ground that it was registered after one and half months from the date of execution. c) The learned Single Judge ought not to have given any credence to the objections raised by the respondent with regard to the registration of the Will between 1 p.m and 2 p.m, which according to the respondent was the lunch hour and that the same also heightened the suspicion regarding the genuineness of the Will. d) The learned Single Judge also erred in observing tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the appellants with regard to proof of due execution of the Will in question. 13. This Court does not find this to be a serious infirmity which would compel the Court to refuse a grant of probate or Letters of Administration, as the case may warrant. Or.25 R.4 of the Original Side Rules, reads as follows: "R.4. Application for probate shall be made by a petition with the Will annexed, accompanied if the Will is not in English by an official translation thereof in English; such an application shall be in Form No.55 or as near thereto as the circumstances of the case may permit and shall be accompanied by: (a) a vakalat or appointment signed by the petitioner,unless he appears in person. (b) an affidavit of one of the attesting witnesses if procurable, in Form No.56. (c) a notice to the Collector in Form No.57 signed by the petitioner or his advocate, and (d) except in the case of applications made by the Administrator-General of Madras the affidavit of assets prescribed by Sec.55 of Madras Act and a copy of such affidavit. The notice shall as soon as the petition is admitted be signed by the Registrar and sent by him to the Collector. The copy of the affidavit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... left thumb impression and her signature was also identified by two persons viz., Kothandaraman and J.Jaya. The Will has been registered as Doc.No.14 of 2005 in Book 3 maintained by the Sub Registrar's Office. The second appellant as P.W.1, filed her proof affidavit. In the said proof of affidavit, paragraphs 5 and 8 assume relevance for the purpose of this case and they are extracted for easy reference: " 5. I submit that the registered Will of the Late Dharmambal @ Pattammal was attested by me and the defendant herein, the daughter of deceased Dharmambal @ Pattammal. 8. I submit that the said Will of Testatrix Tmt. Dharmambal @ Pattamal was attested by myself and the defendant Mrs.U.Saraswathi who is the daughter of the Testatrix." 16. Apart from the filing of the proof affidavit on 13.08.2014, P.W.1 was examined in chief. She has also spoken about the attestation of the Will by herself and the respondent. Even in her cross examination on 08.09.2014, more light has been thrown with regard to the execution as well as the registration of the Will. P.W.1 has categorically stated that the Will was executed on 06.03.2005 and that besides her father Ganesan, the testatrix, her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot filed. I have not signed in Will, my mother also did not execute any Will, she also did not inform me about the alleged Will." 20. The very next question put to her was " Can I take this that because you mother had not told you about the execution of the Will, you say that it is fabricated. Her answer was "yes". 21. D.W.1 has also stated that she never took any steps claiming right in the subject property, though her mother died in the year 2009. Importantly, she has also admitted that her mother and uncle Ganesan were in cordial terms upto 2000. Regarding proof of her mother having the wherewithal to purchase the suit property, D.W.1 has only casually mentioned that she was informed by her mother orally that she purchased the property out of money received from ancestral properties, though she did not have any documents to prove the same. 22. To a question regarding what do you mean by the alleged Will being fabricated, her answer was: "It means that it is not a genuine one. Because without probating the Will, they made settlements on 20.11.2009. I have already stated that Ex.P1, Will is signed by mother. According to me, since the Will was not probated earlier, I call ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ager from BSNL, cannot be believed to claim that she also signed on a blank paper. The fact that the Will has been subsequently registered before the Sub Registrar also is a material piece of evidence that has a bearing in this case. Normally, registration of a Will does not lend any extra credence and due execution of the Will has to be necessarily proved whether the Will is registered or not, whenever there is a contest. However, in a case of this nature, where it is specifically alleged that signatures were obtained from the testatrix in blank papers and the same were used to bring about the Will the factum of registration of the Will assumes relevance. 28. Sec.114 of the Indian Evidence Act, 1872 enables the Court to presume existence of any fact which it thinks likely to have happened with regard to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (e) appended to Sec.114 of the Act reads thus: " e. That judicial and official acts have been regularly performed" 29. In the factual background of the case on hand, on a cumulative analysis of the pleadings and oral evidence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court rendered by a learned Single Judge in the case of M.S.Thanigachalam Pillai Vs. Rukmani Ammal and Ors, reported in AIR 1989 Madras 99, to support his arguments with regard to proof of due execution and attestation of Ex.P1-Will, as required under law. 32. In the case before the Hon'ble Supreme Court, the attack on the Will in question was on the ground that it was a result of undue influence and that the Will was not validly attested as required under law. The evidence of the attestors was challenged in the said case on the ground that the attesting witnesses did not mention that they signed the Will in the presence of testator. Therefore, absence of such specific evidence would have to be held fatal and consequently, the Will would have to be held invalid. The Hon'ble Supreme Court, rejecting the said argument, held that it cannot be laid down as a matter of rule that because the witnesses did not state in chief examination that they signed the Will in the presence of a testator, there was no due attestation and that it would depend on the circumstances elicited in evidence as to whether the attesting witnesses signed in the presence of the testator. The Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n knowledge that the Will is not a document that is required to be compulsorily registered. The mere fact that the Will was executed on a particular date and registered subsequently on a different date would not give rise to a suspicion to invalidate the genuineness of the Will itself. Equally, it is not required that the same witnesses who attested the execution of the Will should alone go for registration of the Will and sign the document before the Sub Registrar concerned as identifying witnesses. Even in a case where a Will is executed and registered on the same day, the law does not require that same set of witnesses who attest the execution of the Will should also be the identifying witnesses before the Sub Registrar concerned at the time of the registration. There is no merit in the contention raised by the counsel for the respondent in this regard. 36. Coming to the evidence of the respondent as D.W.1, this Court has already culled out relevant portions of her cross examination, which clearly indicate that she has signed Ex.P1-Will as one of the attesting witnesses. The fact that she did not know about the registration of the Will and that her mother did not inform her abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lai's case, this Court has no hesitation to hold that the evidence of P.W.1, one of the attestors, coupled with the evidence of R.W.1, the other attestor satisfies the requirement of Sec.63 of the Indian Succession Act. 41. This Court has also carefully gone through the cross examination of P.W.1 and there is not even a single suggestion put to her regarding her statements in the proof affidavit with regard to her attesting the Ex.P1-Will as one of the attesting witnesses. No suggestion was also put to P.W.1 that D.W.1 did not attest the Will as the second attesting witness. In short, there is no challenge whatsoever, with regard to the categorical evidence of P.W.1 speaking about the manner in which the Will came to be executed and attested. 42. The learned Single Judge has proceeded mainly on the footing that D.W.1 had totally denied her signature in Ex.P1-Will, which this Court has already found to be not the correct position, after reassessing the entire evidence on record. This Court, therefore finds and holds that Ex.P1- Will has been duly executed and attested and the proof required to be adduced U/s. 63(c) of the Indian Succession Act, 1925 r/w. Sec.68 of the Indian E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely no reason for this Court to hold that Ex.P1-Will is hit by the provisions of the Benami Transactions (Prohibition) Act, 1988. 46. At the outset it is to be noted that the Benami Transactions Prohibition Act, 1988 came into operation only on 05.09.1988. Sec.3 of the said Act (as it stood before amendment by way of Act 43 of 2016) reads as follows: "3. Prohibition of benami transcations:- (1) No person shall enter into any benami transaction (2) Nothing in sub-section (1) shall apply to- (a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter; (b) the securities held by a- (i) depository as a registered owner under subsection (1) of Section 10 of the Depositors Act, 1996; (ii) participant as an agent of a depository. Explanation- The expressions "depository" and "participant" shall have the meanings respectively assigned to them in clauses (e) and (g) of subsection (1) of Section 2 of the Depositories Act, 1996". 47. Sec.4 of the Benami Transactions (Prohibition) Act, 1988 reads ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, which fact was never objected to by her during her life time. The conduct of the respondent in this regard also assumes relevance because there has been no challenge to either the claim of title to the subject property by her uncle Ganesan or for possession of the subject property being with her uncle and the appellants for several years. If really, the defence set up by the respondent was probable, especially given her educational background, the respondent would have never remained a silent spectator throughout, allowing her uncle to enjoy the property and even after his demise, the appellants to continue to enjoy the same without taking any legal steps to recover possession or challenge the title to the property. Point 2 is answered accordingly. Point 3 50. This Court has already found that Ex.P1-Will has been proved to be duly executed in the manner known to law. The counsel for the respondent has also argued that the execution of the Will is surrounded by several suspicious circumstances and therefore Letters of Administration should not be granted as prayed for. 51. The suspicious circumstances that are set out by the counsel for the respondent are a) the advanced ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r than a Will, to be registered. In so far as Wills, the procedure for registration is different and governed by Sec.27 of the Registration Act, 1908. Sec.27 reads thus: "27. Wills may be presented or deposited at any time.-A will may at any time be presented for registration or deposited in manner hereinafter provided." Further, Sec. 40 of the Registration Act, 1908 reads as under: " 40. Persons entitled to present wills and authorities to adopt. (1) The testator, or after his death any person claiming as executor or otherwise under a will, may present it to any Registrar or Sub-Registrar for registration. (2) The donor, or after his death the donee, of any authority to adopt, or the adoptive son, may present it to any Registrar or Sub- Registrar for registration. 56. It can thus be seen that there is a departure from a Will and other documents, when it comes to the question of registration. Unlike any other document, where only a four month time period is allowed for presenting the same for registration, from the date of its execution, in the case of Wills there is no time limit at all. Sec. 40 infact permits presenting a Will for registration even after the demise of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here can be no straight jacket formula to say what are all suspicious circumstances. What may be a suspicious circumstance in one given set of facts may not be a suspicious circumstance in another set of facts. Court have to be very cautious in dealing with the doubts cast by the Caveator on due execution of the Will. Courts must also remember that invariably heirs or representatives who are not beneficiaries under the Will, being disgruntled of the said fact, are the persons who choose to attack the Will, throwing all kind of possible suspicions on the execution or the circumstances surrounding the execution of the Will. The Probate Court has to analyse the facts and circumstances of each case, before accepting the circumstances set up or pleaded by the Caveator as "suspicious" in order to deny the grant to the propounder. 58. The last contention raised and argued by the learned counsel for the respondent is regarding delay in approaching the Court for grant of Letters of Administration. No doubt, the testatrix died on 27.07.2009 and the O.P seeking Letters of Administration came to filed only in March 2013. However, in paragraph 10 of the petition, the appellants have explained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hurried to obtain orders in their favour. Therefore, on any count whatsoever, this Court is unable to find that the delay occasioned in approaching the Court, seeking Letters of Administration cannot be held to be either a suspicious circumstances or for that matter a circumstance to invalidate Ex.P1-Will. 61. Concluding, this Court would like to state that there is no straight jacket formula to ascertain or assess suspicious circumstances. All or any suspicion cannot be treated as a suspicious circumstances, thereby calling upon the propounder to dispel the same. The suspicious circumstances, raised by the Caveator seeking to attack the genuineness of the Will should be germane and surrounding the execution of the Will alone. Caveators cannot cite circumstances that are not material or relevant to execution of the Will and try to pinpoint circumstances, that have arisen post execution of the Will, like in the present case where, the Caveator has alleged that the Will was registered during lunch time or, in other cases, by trying to take advantage of any conflict in evidence adduced by the propounder or the witnesses, as long as they do not touch upon the facts surrounding due exe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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