K.S.Sathyanarayanan vs D.Yasodha, & Ors.

S. No,Exhibits,Date,Description of documents

1.,P-1,-,Original Death Certificate of Navamaniammal

2.,P-2,05/05/1968,Original Will of Navamaniammal

3.,P-3 to P6,-,consent affidavits of R1 to R4 respectively

4.,P-7,10.03.2004,Original legal notice issued by the defendant

5.,P-8,27.03.2004,Office copy of the reply notice by the plaintiff

6,P-9 series (3 books),,Recurring deposit books

7.,P-10,15.8.1966-,Letter executed by K.M.Swaminatha Reddy

,,,

,,,

8,P-11,07.5.1971,Discharge of promissory note

9.,P-12,26.02.1969,Letter written by sons of Navamaniammal to the Revenue Officers of Corporation

10,P-13 (series) (8 letters),,Correspondence between Corporation and the plaintiff regarding payment of property tax

11,P-14,,Property tax payment card

12,P15,,Photocopy of the property tax payment card for the current period

BRADRI AND OTHERS V. LOKESH DATTA MULTANI) and (2005) 1 SCC 280 (MEENAKSHIAMMAL AND OTHERS VS.,,,

CHANDRASEKARAN AND ANOTHER).,,,

Countering the arguments of the plaintiff''s counsel, the learned counsel appearing for the defendants submitted that the plaintiff himself has",,,

admitted about the execution of mortgage along with other legal heirs of the deceased Navamani Ammal even after the alleged execution of the,,,

Will. The execution of the mortgage in fact, clearly indicate that there was no will in existence at the time of mortgage as alleged by the plaintiff.",,,

Exs.D.1 to D.3, a copy of the mortgage deed executed by the plaintiff and other legal heirs clearly shows that parties have made declaration",,,

therein in writing that there was no Will, whatsoever, in existence at the time of mortgage. Admittedly, the alleged Will said to have executed in the",,,

year 1968 and, thereafter, during the year 1981 to 1983, in the above document, i.e., in the mortgage deed, the plaintiff himself admitted that there",,,

was no Will, whatsoever, in existence. Therefore, the contention of the learned counsel for the defendant that the alleged Will Ex.P2 dated",,,

05.5.1968 was created at a later point of time only to non suit the defendants herein.,,,

The learned counsel for the defendants further submitted that the way in which the Will was written in two papers clearly fortify the fact that,,,

same has been fabricated at later point of time by taking advantage of the blank signature of the deceased Navamani Ammal. It is also the,,,

submission of the learned counsel for the defendants that the so called attesting witness, is not illiterate. The manner in which, he signed in the Will",,,

clearly indicate the fact that signatures were accommodated in a such a manner to give some place to witness to sign in the bottom of the Will.,,,

These facts clearly create serious doubt about the very transaction itself. The doubt, itself further fortified in view of the admission of the attesting",,,

witness in the cross examination. The attesting witness has categorically admitted that the Will was in fact dictated by one Varadarajan and written,,,

by scribe S.Kannan. The cross examination of the attesting witness merely prove the fact that testatrix had never dictated anything to the scribe,,,

whereas, all the contents were written only on the dictation of the said Varadarajan. Further, the attesting witness also admitted in his evidence that",,,

he was not aware whether testatrix signed in his presence. Therefore, it is submitted by the learned counsel for the defendants that the factum of",,,

execution of the Will itself is doubtful in this case. Hence submitted that the Will is shrouded with suspicious and the the same came into existence,,,

only at the later point of time. Therefore the learned counsel for the defendants prayed for dismissal of the suit.,,,

The learned counsel for the defendants fairly submitted that though he has taken a plea of limitation, now he has given up the same in view of",,,

the latest judgment of the Division Bench of this Court reported in 2016 1 CTC 257 (S.VATSALA vs. K.S.MOHAN AND OTEHRS).,,,

In the light of the above, now the issue has to be answered one by one.",,,

Issue No.2:,,,

It is pertinent to point out here that the learned counsel for the defendants conceded in his arguments that in view of the decision of the Division,,,

Bench of this Court cited supra, the defendants have given up the defence of limitation taken by them.",,,

Admittedly, the issue is covered in the proposition laid down by the Division Bench of this Court cited supra. The Division Bench, considering",,,

the various provisions as well as Order XXV, Rule 9 of the Original side Rules, has held that limitation will not apply to Sections 232 and 278 of",,,

the Indian Succession Act in respect of the proceedings initiated as per Original Side Rules. The Division Bench upheld the view taken by the,,,

single judge that Article 137 of the Limitation Act is not applicable to probate proceedings.,,,

In view of the above proposition laid down by this Court coupled with the fact that counsel appearing for the defendants has also given up the,,,

case on the ground of limitation, this Court is of the view that no further discussion is necessary on this issue. The delay in filing the probate will be",,,

taken into consideration only in the main issue. Accordingly, this issue is answered.",,,

Issue Nos. 1 and 3:,,,

Originally the plaintiff has filed a petition for grant of probate of the unregistered Will dated 05.5.1968, which is marked as Ex.P2. In view of",,,

the caveat filed by the defendant Nos.5 to 7, who are none other than the daughters of the testatrix, the petition has been converted into Suit. The",,,

other legal heirs of the Navamani Ammal, namely, the defendants 1 to 4 remain ex parte and they have not contested the matter. However, the said",,,

defendants have filed an affidavit to the effect that they have no objection for grant of probate in favour of the plaintiff. As per the Will, Ex.P2, the",,,

plaintiff and the defendants were said to be the beneficiaries, whereas the contesting defendants oppose the Will on the ground that the Will has",,,

been brought out with the help of blank signed paper of the deceased Navamani Ammal. Further, it is the contention of the defendants that there",,,

was no reason, whatsoever, for disinheriting the daughters. The mortgage of the subject property from the year 1981 to 1983, which would clearly",,,

indicate that there was no acceptance of the Will.,,,

It is well settled that the initial burden is always on the propounder to prove the execution as as well as the attestation of the Will by the testator,,,

or testatrix. Once the execution and attestation of the Will are clearly proved by examining the attesting witnesses, then the provision of Sections",,,

63 of Indian Succession Act and 68 of the Indian Evidence Act are deemed to be complied with. It is needless to mention that in the absence of,,,

any suspicious circumstances, the Will stands proved. If the contesting party is able to show existence of some suspicions, which are inherent in the",,,

transaction itself, then the burden lies on the propounder to dispel the same by producing cogent and convincing evidence before the Court of law.",,,

In this case, to prove the execution and attestation of the Will, one of the attesting witness, namely, T.C.Murugesan, was examined. In the",,,

Chief examination, he has stated that he was well acquainted with the testatrix Navamani Ammal on the date of execution of the Will i.e.",,,

05.5.1968. The said Murugesan stated that he was present together with one Mr. K.M.Swaminatha Mudaliar in the house of Varadarasan and the,,,

Will was written by the scribe Kannan and he has also seen the testatrix subscribing her name in the Will. Though the Chief Examination would,,,

prove the fact that as if the entire compliance was done to prove the Will, when the cross examination of said Murugesan was carefully perused, it",,,

does not refer the fact that the contents were dictated by the said deceased Navamani Ammal and written by Kannan. Of course, the specific",,,

instances or suspicious circumstances have not been pleaded in the written statement except alleging that the Will has been brought out by,,,

fabricating the signed blank paper of the deceased Navamani Ammal.,,,

The Court has to be satisfied with the genuineness of the Will before legalising the disputed Will since it takes away the normal way of,,,

succession. Therefore, it is duty of the propounder to prove the Will beyond doubt.",,,

As discussed above, the chief Examination of Mr.Murugesan, attesting witness, does not show that testatrix has, in fact, narrated the contents",,,

to the so called scribe Kannan. But when the cross examination is carefully perused, it discloses the fact that he was not acquainted with",,,

Swaminatha Mudaliar, the husband of the testatrix. Though he has stated in the chief examination that Swaminadaha Mudaliar was his friend, in the",,,

cross examination has has categorically admitted that he does not know him much and he know him through Mr.Varadarajan. Further, in the cross",,,

examination, he has stated that Mr.Varadharajan told Mr.Kannan to write the Will. From his evidence, it is clear that Mr.Kannan wrote the Will",,,

and the contents were dictated by Mr.Varadarajan. He has also admitted that he does not know whether Navamani Ammal signed the Will,,,

already, before he attested. He has also stated in his evidence that nobody has signed the Will apart from him and Mr.Varadharajan.",,,

Though it may be stated that the attesting witness, Murugesan, is aged about 81 years in the year 2006 and he cannot be expected to give",,,

minute details about the Will and the person, who had attested the Will etc., the fact remains that Varadarajan was not an ordinary man at the",,,

relevant time and he was a teacher at the Pachaiyappa''s college. The said fact was admitted by Murugesan himself, in the cross examination.",,,

Varadarajan is also said to be one of the attesting witness of the Will.,,,

In the background of the aforementioned facts, when Ex.P2, Will, is carefully perused, it could be seen that the same was written in two white",,,

papers. As per the evidence of Murugesan, it is seen that the scribe has written the said Will, as dictated by Varadharajan. It is to be noted that",,,

Varadharajan, was not an illiterate man and he was a teacher at Pachaiyappa''s College. If really the Will was dictated by Varadharajan on the",,,

date alleged, any normal prudent man would leave space for signing the attesting witnesses. The first page of the Will clearly indicate that the",,,

attesting witnesses did not have place to put their signatures. In fact, Murugesan has signed in the center part of the Will. His evidence that except",,,

him and varadharajan, nobody has signed is also falsified on seeing the Will. In the Will, other than the attesting witness one Mr. Swaminatha",,,

Mudaliar, has signed, who is none other than the husband of the testatrix Navamani Ammal. The second page of the Will is carefully perused, the",,,

sentence in vernacular language ""VERNACULAR MATTER OMITTED"" has been accommodated in between the left margin and signature of the",,,

testatrix Navamani Ammal. If really the Will was dictated and prepared at the instance of Varadharajan, who was a teacher at the relevant time,",,,

the above sentence could not have been accommodated in a crumpled manner.,,,

Further, the entire recitals of the Will, more particularly, the second page of the Will, show as if the testatrix Navamani Ammal executed the",,,

Will only in the presence of her husband, Swaminatha Mudaliar. Furthermore, in the recital having mentioned about the presence of the husband of",,,

the testatrix, Navamani Ammal, could have mentioned about the presence of attesting witnesses in the same sentence itself. The sentence ""Will has",,,

been written in the presence of attesting witnesses"" has been added in between the signature of the testatrix Navamani Ammal and left margin of",,,

the paper. This fact really created a doubt about the execution of the Will by the said Navamani Ammal in the presence of the attesting witnesses.,,,

If really the Will was executed in a free volition by the said Navamani Ammal, that too, in the presence of learned man Varadharan, who was a",,,

teacher at the relevant point of time, there was no necessity to accommodate the entire Will within two paper. They should have given sufficient",,,

space and in fact, nothing prevented them to continue the recital in other page also. These fact really create some doubt about the manner of",,,

execution of the Will.,,,

It is relevant to note that there is no dispute with regard to the signature of the testatrix Navamani Ammal found in the Will. It is not in dispute,,,

that one Swaminatha Mudaliar is the husband of the testatrix. It is also not in dispute that the parties herein are the sons and daughters of the,,,

testatrix Navamani Ammal and the said Swaminatha Mudaliar. Admittedly, Navamani Ammal died on 22.01.1969, which is evident from Ex.P1.",,,

Further, the entire evidence discloses the fact that Swaminatha Mudaliar also died subsequently on 02.11.1972. Though it is stated that the so",,,

called Varadharajan died, no evidence is available. Further, Murugesn, one of the attesting witness, in his evidence, has categorically admitted that",,,

Varadharajan has dictated the Will to the scribe. These facts clearly indicate that testatrix has not dictated the Will on her own volition.,,,

From the above fact, even though the signature is not disputed by other side, the testamentary capacity of Navamani Ammal cannot be",,,

inferred, merely on the basis of the signature found in Ex.P2. The doubt with regard to the execution of the Will by the testatrix Navamani Ammal",,,

is further fortified by Ex.P12, which is said to be a copy of the communication addressed to the Corporation by the plaintiff to change the house",,,

tax receipts on the basis of the Will. It is to be noted that in Ex.P12, letter dated 26.02.1969 addressed to the Revenue Officer, Corporation of",,,

Madras, mention has been made with regard to the death of testatrix and the Will executed by her. But no date, whatsoever, as to the Will has",,,

been mentioned in the said letter. Further, it is to be noted that Ex.P12, though claimed to be a copy of the communication sent to the Revenue",,,

Officer, in fact, it is a original copy. In fact, it is written in ink. Therefore, the theory of sending communication intimating Will itself is a doubtful. If",,,

really communication was sent to Corporation, original of letter must be in the Corporation, whereas the original was produced by the plaintiff.",,,

Further, there is no evidence to show that Corporation has acted upon this letter. This Ex.P12 clearly suggest that the same has been made only for",,,

the purpose of the case to show as if the Will has been acted upon from the year 1969. If really the Will has been notified to the Corporation of,,,

Madras on the basis of Ex.P12, there should have been change of name in the house tax and other revenue records immediately or at least from",,,

the very next year. The documents relied upon by the plaintiff, i.e. Ex.P.13 series, clearly show that only from the year 1974 onwards, the tax has",,,

been paid by the plaintiff. Further, there were some proceedings in respect of the tax for the same year. Ex.P14 is the demand of tax for the",,,

subsequent years. It is quite natural for the Revenue Officials or Corporation to collect tax from the person, who is in occupation of the premises.",,,

Therefore, merely because house tax has been collected from the plaintiff by the Corporation cannot be construed that only on the basis of the",,,

Will, name has been changed in the said document.",,,

Furthermore, it is the contention of the plaintiff that the Will was executed in the year 1969 and the same was immediately informed to other",,,

legal heirs and that, they have not taken steps till the filing of the petition to probate the Will. The existence of the Will was known legally only in the",,,

reply notice, Ex.P8 dated 27.3.2004. The defendants have issued a legal notice on 10.3.2004 under Ex.P7 claiming partition of the properties.",,,

Only reply to the above legal notice, existence of the alleged Will was pleaded by the plaintiff. Even though, it is the contention of the plaintiff that",,,

the defendants were aware of the Will and the same was informed to them immediately, after the death of the mother, namely, the deceased",,,

Navamani Ammal, the conduct of the party creates a doubt in this case.",,,

It is to be noted that the plaintiff and the defendants, in fact, have executed mortgage deed, Ex.D1, in the name of the Egmore Benefit Society",,,

Limited, on 04.5.1981. Similarly Ex.D2 is another mortgage deed executed on 08.12.1983 by all the legal heirs of the deceased Navamani",,,

Ammal. Similarly, under Ex.D3 all the legal heirs of the deceased Navamani Ammal had deposited the title deeds of the property to the said",,,

society. Though Exs.D1 to D3 are the xerox copy of the mortgage deeds and letter depositing title deeds, this fact has been admitted by the",,,

plaintiff in his evidence. In the cross examination also, he has categorically admitted the signature found in the above documents. Further, in the",,,

reply statement the plaintiff has admitted about the execution of the mortgage. In view of the positive admission by the plaintiff about the execution,,,

of the mortgage in favour of The Egmore Benefit Society Ltd., such admitted fact need not be proved. Therefore, this Court is of the view that in",,,

the light of the positive admission by the plaintiff with regard to the execution of mortgage by all the legal heirs of the deceased Navamani Ammal,",,,

Exs.D1 to D3, the xerox copies of the mortgage deed as well as the deposit of title deeds, cannot be thrown away on the ground that originals",,,

have not been produced and Section 65 of Indian Evidence Act is not complied with.,,,

In this regard, it is useful to refer the judgment of the Hon`ble Apex Court reported in AIR 2015 SC 580 (ZARINA SIDDIQUI V.",,,

A.RAMALINGAM @ R. AMARNATHAN) wherein the Hon`ble Apex Court has held that during the cross examination if the party admits the,,,

signature as well as the contents of the document, there is no question of proving the said document, as required under Section 65 and 66 of the",,,

Indian Evidence Act. In this case, not only in the cross examination but also in the pleadings as well as in the reply statement, the plaintiff has",,,

categorically admitted about the execution of the mortgage deed. When Exs.D1 and D2 were carefully read, it is seen that all the legal heirs of the",,,

deceased Navamani Ammal, have mortgaged the property and in fact, in the above Will, the fact has been clearly set out that the property was",,,

purchased by the deceased Navamani Ammal. In fact, in clause 11 of the Mortgage Deed, all the legal heirs have given a declaration to the effect",,,

that there was no Will, whatsoever, in existence with regard to the suit property. Under Ex.D2, which was also executed in the year 1983, they",,,

have given a similar declaration to the effect that that there was no Will in existence. Ex.D3, is the letter of deposit of title deed signed by all the",,,

legal heirs of the deceased Navamani Ammal, wherein apart from declaring the details of the property, they have given declaration that there was",,,

no Will. Having declared that there was no Will in the year 1981 to 1983, and admitted that the property belongs to all the legal heirs, now the",,,

plaintiff is estopped from claiming that there was a Will in existence prior to these documents. If really the Will was in existence and acted upon as,,,

contended by the plaintiff, there was no necessity, whatsoever, for all the legal heirs joining together to execute the mortgage deed. These facts",,,

cannot be ignored altogether.,,,

That apart, the manner in which, the Will was accommodated in two pages and the sentences written therein even without leaving any space",,,

for the so called attesting witnesses to sign in the document, would prove that the Will was not in existence and the same was created for the",,,

purpose of the case. Further, the fact that last sentence was accommodated in between the signature of the deceased Navamani Ammal and left",,,

margin of the paper, would disprove the contention of the plaintiff that the Will was in existence and acted upon. The doubt with regard to the",,,

signature of the attesting witnesses is apparent. The possibility of signing the above documents as attesting witnesses subsequently cannot be ruled,,,

out. Unfortunately, both the parties have not relied on any evidence to show when the other attesting witnesses died so as to come to the",,,

conclusion that the Will has been fabricated at a later point of time.,,,

Be that as it may, the fact remains that doubt is inherent from the entire transaction that the contents of the Will has been dictated by",,,

Varadharajan, one of the attesting witnesses and not by the testatrix. Therefore, this Court is of the view that the propounder of the Will has not",,,

cleared the doubt surrounding with the Will, which is apparent in nature, to the satisfaction of this Court. One another attempt has been made by",,,

the learned counsel for the plaintiff to explain that as to why the mortgage has been created. It is submitted by the learned counsel that the,,,

mortgage has been created only for the purpose of meeting out marriage expenses of the younger daughter of the deceased Navamani Ammal.,,,

In this regard, even the recitals of the Will clearly show that the marriage expenses of the younger daughter have to be met only from the rental",,,

income. If that be so, there was no necessity, whatsoever, for mortgaging the property to meet the so called marriage expenses for the younger",,,

daughters. The evidence of D.W.1. discloses the fact that she was married in the year 1970. Admittedly, the mortgage has been created in the year",,,

1981. D.W.1 got married in the year 1970 and only her sister married in the year 1983. Hence, there was no necessity arose in the year 1981 for",,,

mortgaging the property. Therefore, the allegation of the plaintiff that only for the purpose of marriage expenses, the mortgage was executed is also",,,

found to be false.,,,

Insofar the judgments relied on by the learned counsel for the plaintiff are concerned, absolutely, there is no dispute with regard to the",,,

proposition of law laid down in the above judgments. Whereas from the aforementioned facts, this Court finds a doubt which is inherent in the",,,

transaction itself. Further, subsequent document of the parties also clearly, disprove the alleged Will and as such, the judgments cited by the",,,

learned counsel for the plaintiff are not applicable to the facts of the present case.,,,

All these facts coupled with the delay of more than four decades, to claim the right on the alleged Will and subsequent conduct of the parties,",,,

this Court is not satisfied to accept Ex.P2 Will. Accordingly, the issues are answered.",,,

In the result, the suit is dismissed. However, considering the relationship between the parties, there shall be no order as to costs.",,,