A. Janaki vs Annapalam Ammal and Another

Venkatadri, J.—This is a Letters Patent Appeal from the judgment of Jagadisan J., by which he pronounced against the Will of one

Amirthanayaga Nadar, propounded by the Plaintiff A. Jacob.

The Will that is propounded is dated 24th June 1921 and Amirthanayaga Nadar, the testator, died on 30th June 1921. The Will is said to have

been in possession of the Plaintiff during the period of 36 years following the death of the testator and it was only in the year 1957 that he filed a

petition requesting the Court for leave to prove the Will in common form and praying for the grant of a Probate to him. From a mere narration of

the above dates and facts, it will be a matter for surprise why the Will was not brought to light for such a long time till the Plaintiff filed the present

suit on 18th July 1956. Under the Will the testator bequeathed the money-lending business, major portion of the immovable properties, house,

cattle, etc., to his children including the Plaintiff, born to his first wife. To the first Defendant, who was married to the testator a year prior to his

death, was given a small extent of land 1.96 acres in extent out of an estate of 33 acres and provision was made for payment of a sum of Rs. 500

to the daughter of the first Defendant for marriage expenses. The testator also directed his son, the Plaintiff, to construct a small mud house for the

first Defendant.

The first Defendant disputes the genuineness of the Will and states that her husband died intestate, that the Plaintiff himself allowed other

members of the family to deal with the properties as if there was no Will, that there was an oral partition in 1924, in and by which the Defendants

were allotted separate properties and the members of the family have acted on this oral partition by entering into possession of the respective

properties allotted to them, changing the pattas into their names and dealing with their properties and that the Will was not brought to light during all

these years till the suit was filed.

On these pleadings, the parties went to trial and the Additional District Judge finding that the Will was true, valid and binding on the Defendants

decreed the suit and directed the issue of Probate to the Plaintiff. But on appeal to this Court by the Defendants, Jagadisan J., set aside the order

of the lower Court and dismissed the suit holding that there was no acceptable proof that exhibit A-1 was a genuine and a valid Will of the late

Amirthanayagam and that it was not proper that Probate should be granted to the Plaintiff.

It is against this judgment dismissing the suit that the present appeal is preferred and once again it is contended that the Will is true and genuine

and that probate should be granted to the Plaintiff, notwithstanding the considerable delay of 36 years in coming to the Court.

It is true that an application for Probate can be made at any time. There is no limitation of time for making such an application. Mere delay itself

cannot be a ground against the genuineness of the Will. Probate involves payment of a large sum by way of Probate duty and delay might be due to

lack of funds. But still the Court is bound to be satisfied with regard to the genuineness of the Will that is set up. The burden of proving due

execution is upon the person propounding the Will. He must satisfy the conscience of the Court that the instrument so propounded is the last Will

of a free and capable testator.

What is the evidence that has been given in the instant case? The Plaintiff says that his father executed a Will on 24th June 1921. Though there

was a delay of thirty-six years in filing a suit for grant of Probate, the Will was referred to as early as in 1922, when he executed a usufructuary

mortgage. But under this document he mortgaged the properties that were allotted to the first Defendant according to the terms of the Will. The

first Defendant also mortgaged certain items of properties under exhibit B-3 on 19th April 1941. The document recites that there was an oral

partition and the mortgaged properties were allotted to her. Subsequently she sold the properties to the mortgagee himself and the Plaintiff''s

brother purchased the same from the mortgagee later. These items of properties are not, however, found to be allotted to the first Defendant under

the terms of the Will now propounded by the Plaintiff. The Plaintiff also relied on the document exhibit A-2, which is a release deed said to have

been executed by the Defendants at the time of receipt of the sum of Rs. 500 for the marriage expenses of the testator''s daughter (second

Defendant). But this document was disputed by the Defendants and it was found to be inadmissible for want of registration. The first Defendant

also produced joint patta issued to her along with the Plaintiff and his brothers in respect of some items of properties which are not bequeathed to

her under the terms of the Will. The Will is an unregistered one. The testator lived for five days after the execution of the Will. There is no proof of

his mental capacity. There is considerable delay in coming to the Court for Probate of the Will. Its execution is doubtful, the disposal of the

properties is unnatural and the attendant circumstances are all of a suspicious nature. In these circumstances the Plaintiff has to explain the reason

for the delay in coming to the Court and prove execution of the Will to the satisfaction of the Court. As observed by Muttuswami Ayyar J. in

Gnanamuthu Upadesi v. Vana Koilpillai Nadan (1894) ILR 17 Mad. 379, 381.

It is no doubt usual to demand an explanation when there is unreasonable delay in applying for probate, because the time when after the testator''s

death the Will is to be proved is not fixed, and the explanation is necessary to assist the Judge in coming to a finding as to the genuineness of the

Will propounded.

In Chandrika Bakhsh v. Madho AIR 1924 P.C. 231, the genuineness of the Will was questioned for the first time after a period of twenty-five

years after its execution. In that case:

The Will was produced at once, it was not kept quiet ; it was produced within a very-short time for the practical purpose of having mutation made

of names in the register....

On those facts, it was held that the Will was genuine and was sufficiently proved.

The test to be applied in such cases is laid down thus by Kumaraswami Sastri J. in Ganshamdoss Narayandoss and Others Vs. Saraswathi Bai

and Others, :

One important test, in cases where wills are disputed and disputes arise several years later, is to see what was the conduct of the parties and where

the conduct of the parties can only be rationally explained, by the fact of the existence of a will, I think this fact will have considerable bearing, in

appreciating the evidence of the witnesses as to its genuineness.

In the present case, the conduct of the parties is not in favour of the existence of the Will. The Plaintiff mortgaged some items of properties

which were allotted to the first Defendant. The first Defendant on her part also mortgaged some items of properties not allotted to her under the

Will and the Plaintiff acquiesced in such conduct. Really if there was a Will neither the Plaintiff nor his step-mother (first Defendant) would have

dealt with the properties in the manner they did.

In AIR 1937 101 (Privy Council) Sir Shadi Lal. described the Will which was produced in that case twenty-two years after its execution as an

inofficious document in view of the strange provisions and the niggardly manner in which the daughter, who should have been the proper object of

her father''s bounty, was treated. It was held that the testament was unnatural and ran counter to the ordinary sentiment of persons having status

and that there were circumstances telling against the genuineness of the Will and the failure of the widow to mention the Will on critical occasions

warranted the conclusion that the Will was not made by the testator. In the same way in the instant case under the Will alleged to have been

executed by the Plaintiff''s father only a small extent of property, viz., 1-96 acres of land out of 33 acres was bequeathed to the junior widow first

Defendant, who married the testator just a year before his death, and only a small sum of Rs. 500 was provided for the marriage expenses of the

first Defendant''s daughter. Under the Indian Succession Act the junior widow is entitled to one-third of the estate and her daughter along with the

children of the senior widow are entitled to two-thirds of the estate. There is no evidence to show that there were misunderstandings or quarrel

between the testator and his second wife at the time of his death. As a matter of fact the testator was in the first Defendant''s parents'' house till

some time prior to his death and when he became seriously ill he was removed to the Plaintiff''s house. The alleged Will was executed in his house

and the major portion of the estate was bequeathed to him and his brothers. He is now propounder of the Will.

In Vellaswamy Servai v. Sivaraman Servai (1929) ILR 8 Rang. 179 (P.C.), the propounder of the Will was the principal beneficiary and had

taken a leading part in giving instructions for execution of the Will and procuring its registration. Sir Binod Mitter observed at page 185:

Circumstances exist in this case that would excite the suspicion of any probate court and require it to examine the evidence in support of the Will

with great vigilance and scrutiny and the Respondent is not entitled to probate unless the evidence removes such suspicion and clearly proves that

the testator approved of the Will.

Lindley L.J., said in Tyrrell v. Painton (1894) Prob. 151:

The wide definition of suspicion extends to all cases in which circumstances exist which excite the suspicion of the court in reference to the

preparation of the Will, its intrinsic terms and circumstances surrounding its preparation and execution.

Similarly in Harimati Debi and Another Vs. Anath Nath Roy Choudhury, , a Bench of the Calcutta High Court while dealing with an application

for issue of Letters of Administration with the Will annexed made more than twenty years after the testator''s death made the following

observations at page 539, which are relevant for the purpose of this case:

I desire only to point out that the burden of proving the will in solemn form is cast upon the propounders, and in view of the fact that an

unregistered Will is sought to be propounded after the lapse of more than 20 years, it is required that all manner of doubt and suspicion which are

likely to arise should be removed by them. Having regard to the unsatisfactory nature of the evidence that has been adduced and the discrepancies

in them they are bound to excite the suspicion of any probate Court, and unless such suspicions are removed, no probate can be granted.

The principles which govern the proof of a Will have been laid down by the Supreme Court from time to time, see: H. Venkatachala Iyengar,

v. B.N. Thimmajamma and Ors. (1959) 1 S.C.R. 426 (Suppl.) : and Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and

Another, : The above two decisions have been followed in a recent decision of the Supreme Court in Shashi Kumar Banerjee and Others Vs.

Subodh Kumar Banerjee since deceased and after him his legal representatives and Others, where Wanchoo J., observed thus at page 531:

The mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation

prescribed in the case of a Will by Section 63 of the Indian Succession Act. The onus of proving the Will is in 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 before the court accepts the Will as genuine. Where the caveator allege undue influence, fraud and coercion, the onus is on

him to prove the same. Even where there are no such pleas but the 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 signature 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 suspicion

should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes 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. 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.

In the circumstances of the present case, the Plaintiff has not removed our doubt and suspicion and convinced us that the Will is a genuine

document and is, therefore, not entitled to the grant of Probate of the Will.

The appeal, is, therefore, dismissed with costs.