TMI Blog2004 (12) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, on the file of the District Munsif Court, Villupuram, against the tenant of the property, by name Kannan, on the basis of the Will, which was exhibited there as Ex.A.1. But, the said suit was dismissed on the ground that the Will was not probated. (c)The plaintiff/first respondent's husband was not well and the first respondent was also under bed rest, from September 1984 to June 1989, which prevented her, from filing the petition or to take steps, to probate the Will, and the delay was not wanton. (d) Lakshmi Bai had executed the Will, while she was in a sound disposing state of mind, under which the plaintiff/first respondent was given, the right of management over the properties, covered under the Will, as well as the properties described in the petition. As per the Will, the plaintiff/first respondent alone has to continue the Dharmam, charges and others are not entitled to be in management of the properties. The appellant herein also filed a suit against the plaintiff/first respondent and other respondents, questioning the validity of the Will. Under the above circumstances, it is prayed, that letter of administration, should be granted for the administration of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent, which is under challenge in this appeal. 5. Heard the learned Senior Counsel, Mr. G. Rajagopalan for the appellant, the learned Senior Counsel, Mr. T.R. Rajagopalan, for the first respondent and the learned counsel, Mr. A. Tamizharasan for respondents 3 to 7. 6. The learned Senior Counsel for the appellant, while assailing the judgment submitted, (i) that there is no explanation for the delay in taking steps for obtaining probate, as contemplated under Order 25, Rule 9 of the Madras High Court Original Side Rules, (ii) that the Will is not proved, as contemplated under law, since none of the attesting witnesses has been examined, to prove the execution of the Will, as well as the valid attestation, (iii) that since it is said that the attestors are dead, the execution of the Will is also not proved, by identifying the signatures of the attestors as well as the executant, as that of the persons attested and executed, and (iv) that since the Will has not been properly proved, as mandated by law, letters of administration granted in favour of the plaintiff/the first respondent, is liable to be set aside, which are supported by other respondents, who are suppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a sound disposing state of mind, to execute a valid Will, understanding its effect, etc. 11.The learned Single Judge considering the rival contentions of the parties, as herein before mentioned, uphold the execution of the Will, thereby ordering the grant of letters of administration, which is under challenge. 12. It would be better, to remember the pleadings in the petition, as well as in the written statement to appreciate the rival contentions of the parties, while assessing the evidence adduced in support of their rival contentions. The plaintiff/first respondent has specifically pleaded that Lakshmi Bai executed the Will, on 4.7.1974, which was registered on the same day, before the Sub-Registrar's Office, T. Nagar, which was attested by one D. Kanmani S/o. Dinakar Raj and A.T. Venkatesan, S/o. Thanigachala Mudaliar. It is also further pleaded, that the said two attestors are now dead. Though the executant of the Will by name Lakshmi Bai died on 22.6.1981, admittedly, the petition was not filed, to probate the Will within the reasonable time, whereas the same was filed, elsewhere in the year 1990, thereby showing some considerable delay also. To explain this delay, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r person, as trustees, for the management and administration of Kemabai Trust, with powers of control, collect and receive the income of its properties, etc. with other ancillary reliefs. The respondents 2 to 6 herein, while tracing out the history of Kema Bai Trust, had specifically pleaded in paragraph-8 of the plaint, regarding the execution of the Wills by Lakshmi Bai. While narrating the previous Wills dated 26.3.1941 and 19.10.1955, it is said afterwards that was also being cancelled by a third Will dated 4.7.1974.......... However, the said Lakshmi Bai's third Will was executed on 4.7.1974 in favour of one alleged sister, Vasanthi under suspicious circumstances . It is further pleaded that the Will dated 4.7.1974 was created with false recitals, regarding relationship with her and how Lakshmi Bai had no right to execute a Will, in favour of Vasanthi, a girl whose parentage is not known, so as to come under this orbit of hierarchy. Thus it is seen, not only the appellant, but also the other respondents in the suit viz., respondents 2 to 6, have specifically admitted the execution of the Will, in favour of the plaintiff/first respondent. In this backdrop, remembering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stator such as mental fitness, physical fitness, the nature of the Will itself, such as registered or unregistered, the language of the Will, such as the said language is known to the testator, the nature of the signature and attestation, creating doubt or affirmation, provisions made under the Will such as excluding the legitimate heirs or preventing the line of successor, or favouring a third party against neutrality and the existence of any other suspicious circumstances, depending upon the health condition, other improbabilities if any. Thus, the plaintiff has to satisfy the Court by letting in sufficient acceptable evidence, to prove the due execution of the Will. 19. The Will, Ex.P.1 has to be proved as required under law with regard to Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act, 1872. In certain circumstances, where it is not possible to prove the Will under Section 68 of the Evidence Act, it can be proved as contemplated under Sections 69 and 71 of the Evidence Act. A combined reading of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act, makes it clear that a person propounding the Will has to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations. It is also made clear in Paragraph-8, what is the suspicious circumstances which reads: A circumstance would be 'suspicious' when it is not normal or is not normally expected in a normal situation or not expected of a normal person. 21. In Kalyan Singh v. Chhoti, AIR1990SC396 it is held, failure on the part of the plaintiff to remove suspicious circumstances, by placing satisfactory materials on record should lead to the conclusion that the Will is not genuine. At paragraph-20, it is stated as follows: It has been said almost too frequently to require repetition that a Will is one of the most solemn documents known to law. The executant of the Will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion Bench of this Court in Ammu Balachandran v. O.T. Joseph, AIR1996Mad442 , while considering the suspicious circumstances, viz., that some pages of the Will were not signed by the testator, has taken the view that one signature on the last sheet, made with the intention of executing the Will is sufficient. The Division Bench has observed, that Section 63 of the Indian Succession Act only says that the signature or mark of the testator or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as Will. The signature or mark of the testator can be either at the commencement or at the end, but it must be so placed that it shall appear that it was intended to give effect to the instrument as a Will. It is further observed, where the other side alleges undue influence, fraud or coercion, it is for them to prove the ingredients and satisfy the Court that the document produced in Court is defective for those reasons. Further, it is said, delay in propounding the Will also, may be considered as one of the suspicious circumstances and considering this point, it is held, that even if there is any delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be said, that this requirement is not complied with, since paragraph-7 of the petition gives some explanation, for the delay. The submission of the learned Senior Counsel for the appellant, that during the relevant period viz., from September 1984 to June 1989, the plaintiff/first respondent could not have been in bed rest, since she was attending the Court in the connected proceedings, fails to inspire us, to reject the explanation offered, considering the fact that the petitioner had proclaimed and propounded the Will, as and when occasion had arisen for her to do so. Admittedly, this petition or plaint has been filed, after three years from the date of death of the testator, since she died on 22.6.1981. If the plaintiff had been silent, not even whispering about the Will, when occasion had arisen, then the inaction on the part of the plaintiff for more than three years in not taking the steps, to probate the Will, could be viewed with suspicion. In this case, admittedly, on the basis of the Will, probably thinking that the Will need not be probated, a suit has been filed by the petitioner, before the District Munsif Court, Villupruam against one Kannan, who was the tenant of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant or by other contesting respondents in the written statements specifically. Further, when the plaintiff has pleaded that the attestors are dead, not challenged. Therefore, it should be taken as an admitted fact that none of the attesting witnesses is alive, to comply with the mandatory provisions of Section 68 of the Indian Evidence Act. 31. The legislators in their wisdom, with forethought expecting this kind of circumstance, enacted Section 69 of the Evidence Act, giving guidelines, how a document, which requires attestation should be proved, where no attesting witness is found. Under Section 69 of the Indian Evidence Act, if no attesting witness is available, and all the attesting witnesses are dead, law contemplates proof, that the attestation of one attesting witness at least, in his hand writing and that the signature of the person executing the Will is in the hand writing of that person. It does not say specifically what kind of proof should be made available, such as by examining certain category of person. In the absence of any such specific direction, this fact could be proved, as any other fact, which is required to be proved under the Evidence Act. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Will, as well as its registration, which could be termed as one of the suspicious circumstances. This suspicion automatically vanished and cleared by the inaction on the part of the testator. During the life time, the testator, would have taken action, if she thought, that the Will was brought out by P.W.1, without her knowledge. No action has been taken. The testator viz., Lakshmi Bai died on 21.6.1981, whereas she had executed the Will on 4.7.1974, thereby indicating her life came to end after 6 years. It is not the case of the contesting respondents or the appellant that from 1974, Lakshmi Bai was not in a sound disposing state of mind, bed ridden or unable to understand the day-to-day activities or failed to attend the administration of the trust, etc. This being the position, considering the date of execution, as well as the date of death of the testator, the reasonable inference that could be drawn is that though the beneficiary had participated in the execution of Will, she had not brought out the Will against the wishes of the testator and if at, all only at the instance of the testator, P.W. 1 should have taken part at the time of the execution of the Will, which in our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on available in the Registrar's office. The finger print expert, who has been examined as P.W.2, has given evidence about the similarity, and we do not find any reason to discard his evidence, only on the ground, that the compared thumb impressions are not having similar appearance by size. The size of thumb impression would depend upon the manner of taking and affixing. When the finger was rolled on both sides, the space covered by the impression may be larger, when the thumb was just pressed and taken away, the space covered may be less and only in this way, it appears to our mind, there is some difference in size and it will not change the characteristic of the thumb impressions, which was found by the hand writing expert, similar. The oral evidence given by the finger print expert would make it clear further, that Lakshmi Bai had been to Registrar's Office, registered the document, thereby accepting the execution of the document viz., Ex.P.1 and that is why, the thumb impression found in Ex.P.1 and the thumb impression found in the book maintained by the Sub Registrar's Office tallied. True, the signature of Lakshmi Bai in Ex.P.1 was not compared with the admitted s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld, in view of Sections 52(1)(a), 58 60 of the Registration Act, the certificate issued by the Registrar would certainly, constitute sufficient evidence to prove the document, its execution also to some extent. For the foregoing reasons, we are fully satisfied, that the requirements of conditions in proving a Will, as mentioned supra are well established, and the burden of proof also discharged by the plaintiff, deserving her, to receive the order, for letters of administration. 42. The submission of the learned counsel for the appellant, as well as other contesting respondents, that Lakshmi Bai has no right to execute the Will, or she has no interest in the properties covered under the Will are all not within the scope of this suit and if these defences are available, it is for the appellant and the other contesting respondents, to agitate the same before the appropriate forum, since they have already filed the suit, questioning this Will and in this view, it may not be proper for us to give any finding, regarding the validity of the Will, except saying its execution is proved, entitling the plaintiff to get an order, for letters of administration. 43.The learned single J ..... X X X X Extracts X X X X X X X X Extracts X X X X
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