Pushpa Bala Jagam vs K. Ananda Kumar, K. Subbalakshmi and K.H. Rao

M. Jeyapaul, J.—The plaintiff originally filed petition under Sections 222 and 276 of Indian Succession Act, 1925 seeking grant of probate.

As caveat was lodged by the respondents, the Original Petition was converted into Testamentary Original Suit.

The contention of the plaintiff as found in the petition is as follows:

The plaintiff is the second wife of K. Jagam who died on 27.12.1982 at St. Isabel''s Hospital, Mylapore, Chennai 600 004. He executed his last

Will and Testament on 18.12.1992 in the presence of two attesting witnesses bequeathing the schedule mentioned property in favour of his son K.

Deepak aged 16 years born through the plaintiff. She was appointed as executrix under the Will. As there was non co-operation from the other

legal heirs of K. Jagam, there was some delay in filing the present petition. Having undertaken to duly administer the properties and credits of the

deceased K. Jagam, she seeks for grant of probate.

On behalf of the caveators, the second defendant filed written statement, the sum and substance of which reads as follows:

The second defendant K. Subbalakshmi is the only wife of late K. Jagam and through their wedlock, three sons viz., one K. Rao (2) K.S. Prasad

and (3) K. Anandakumar were born. The second defendant was not aware of any Will executed by late K. Jagam. Being a member of an

orthodox brahmin family, K. Jagam was very close to the second defendant and without her knowledge, he would not have executed any Will. The

second defendant was not aware that he kept the plaintiff as concubine. The second defendant is shocked to see that the plaintiff called herself as

the second wife. Even assuming without admitting that her husband had executed the alleged Will, he would have done so under undue influence

and coercion. Therefore, the second defendant would submit that the plaintiff is not entitled to grant of probate.

The following issues were framed for determination:

Did Mr. Jagam execute the alleged Will dated 18.12.1982?

Was Jagam who executed the alleged Will dated 18.12.1982 as an in-patient in Government General Hospital in a sound and disposing state of

mind?

To what relief the plaintiff is entitled?

Issues 1 to 3:- On the side of the plaintiff, the plaintiff was examined as PW1 and one of the attesting witnesses by name C.V. Subramanian was

examined as PW2 and Ex.P1, death certificate of the testator and Ex.P2, the disputed Will were marked on the side of the plaintiff. On the side of

the defendants, the third defendant K.H. Rao was examined as DW1. No document was filed on the side of the defendants.

Learned Counsel for the plaintiff would submit that the plaintiff has established the execution of the Will by-examining one of the attesting

witnesses to the Will. Neither the fact that the testator was hospitalised during the execution of the Will nor the fact that there was some delay in

probating the Will would create any suspicion surrounding the Will. There is nothing unnatural in bequeathing a property of the testator in favour of

the son of his second wife. The defendants have to establish the undue influence and coercion pleaded by them. But, quite unfortunately, there is no

evidence to establish such a factum. Therefore, the learned Counsel for the plaintiff would vehemently submit that the defendants have come out

with an unsustainable plea that the testator had not chosen to execute any Will bequeathing the property in favour of the son of the plaintiff.

Learned Counsel for the defendants would contend that there are various suspicious circumstances surrounding the Will. There is evidence to

show that the propounder herself had chosen to participate in the execution of the Will executed by the testator. The very fact that the propounder

had chosen to hide the Will for ten long years would go to show that all is not well with the plea of execution of the Will by K. Jagam. It is only at

the behest of the propounder, the attesting witness had meekly subscribed their signatures to the Will. It is his further submission that the plaintiff,

who would contend that she is the second wife of the deceased K. Jagam, has not chosen to produce even a scrap of paper to show that she was

the second wife of Jagam. It is unnatural for a testator to disinherit all his legal heirs. Therefore, the learned Counsel for the defendants would

contend that the plea for grant of probate will have to be rejected.

The plaintiff has contended that the deceased K. Jagam preferred to bequeath his property in favour of her son born through her wedlock with

the testator. The propounder has not produced any iota of evidence to establish that she is the second wife of K. Jagam and her son, the

beneficiary under the Will, was born through her wedlock with the deceased K. Jagam. The court will have to go into the status of the plaintiff

while considering the propriety of the testator in disinheriting his legal heirs. Here is a case where all the legal heirs including his first wife were

completely disinherited.

The plaintiff would depose that she was not aware as to who scribed the Will. The fact remains that the deceased was in the Intensive Care Unit

in the Government General Hospital, Chennai and thereafter, he was taken to the General Ward. Admittedly, he was discharged and taken to the

house of the defendants. But, quite unfortunately, he developed some complications and was admitted to St. Isabel''s Hospital, Chennai where he

died on account of massive cardiac arrest on the same night. Without the knowledge of the propounder or the knowledge of one of the defendants,

the Will could not have been prepared by the testator as he was not hale and healthy at the time of execution of the Will. There is no denial of the

fact that the original title deeds relating to the property bequeathed under the Will are still in the custody of the defendants. There is no evidence on

the side of the plaintiff as to who had given the meticulous description of the schedule of property to scribe the Will, more especially when the

original documents are in the custody of the defendants.

PW1 has categorically admitted in her evidence that PW2, one of the attesting witnesses to the Will, came to the hospital at her behest. PW2

would disclose that his sister was a colleague of the propounder. The other attesting witness is also found to be a colleague of the propounder. The

beneficiary under the Will is none other than the only son of the propounder. The above facts and circumstances would show that the propounder

has played a vital role in the execution of the Will.

Admittedly, the defendants who are the legal heirs of the testator have been completely disinherited. It is found that the property which was

bequeathed under the Will alone is the prime property owned by the testator. It has already been held that no evidence worth mentioning is

forthcoming from the side of the plaintiff to show even vaguely that the plaintiff is the second wife of K. Jagam. In such circumstances, it is found to

be quite unnatural to exclude all the legal heirs from inheritance.

It has been held by the Supreme Court in the authority reported in Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao and Others, as

follows:

There are several circumstances which would have been held to be described by this Court as suspicious circumstances:

(i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will;

(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;

(iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit.

The aforesaid authority squarely applies to the facts and circumstances of this case where there is found to be unnatural disposition under the

Testament and the prominent role played by the propounder herself in the matter of execution of the Will which confers substantial benefit on her

son.

The learned Counsel for the plaintiff submits an authority reported in Sridevi and Others Vs. Jayaraja Shetty and Others, wherein the

Honourable Supreme Court has observed as follows:

Another suspicious circumstance which was highlighted at great length by the learned Counsel for the appellant is that the Respondent Nos.8-13

had failed to disclose the Will for a period of 4 years in any of the earlier proceedings before the revenue authorities and the forest authorities. That

the Will was got registered after a lapse of 4 years and did not see the light of the day till the initiation of proceedings of the present suit. We do not

find any substance in this submission as well. Respondent No. 13 in his testimony has stated that the contents of the will were disclosed in the year

1976 at the time of final obeisance ceremony of the testator.

That was a case where the contents of the Will were disclosed even at the time of performance of the funeral ceremony of the testator. Under such

circumstances, the plea of the defendants that the Will was kept secret for about four long years was rejected by the Supreme Court. But, in the

instant case, the fact remains that neither the plaintiff nor her son whispered anything about the contents of the Will to any of the legal heirs of the

testator. The existence of the will surfaced only when the defendants were informed by the revenue authorities that patta had already been mutated

in the name of the son of the plaintiff herein even without probating the Will. Therefore, such a guarded secrecy maintained by the plaintiff with

respect to the execution of the Will creates some suspicion in the mind of the court with regard to the execution of the Will by the testator.

A Division Bench of this Court in Corra Vedachalam Chetty v. G. Janakiraman 2001 (3) CTC 283 has held that the court should be very

cautious while dealing with the evidence placed before it in relation to the execution and attestation of the Will and the state of mind of the testator.

The court cannot allow the exploitation of this caution by unscrupulous caveators who choose to cull out imaginary suspicion to render a Will

ineffective. Here in this case, it is found that the propounder herself has actively participated in the execution of the Will. She had not chosen to

produce any evidence to show that she is none other than the second wife of the testator. It was she who had secured the attesting witnesses to the

place of execution of the Will. The attesting witnesses are also found to be very close to her. The confidentiality of the execution of the Will was

kept as a guarded secret for about ten long years. These circumstances cannot be slighted as imaginary suspicion projected by the caveators.

About the natural corollary of the disinheritance of some of the heirs and grant of property to another in testamentary succession, the

Honourable Supreme Court has observed in Gurdev Kaur and Others Vs. Kaki and Others, as follows:

The learned Single Judge of the High Court has not even properly appreciated the context of the circumstances. The contents of the Will have to

be appreciated in the context of circumstances, and not vis-a-vis the rules for intestate succession. It is only for this limited purpose that the Court

examines the nature of bequest. The Court does not substitute its own opinion for what was the testator''s Will or intention as manifested from a

reading of the written instrument. After all, a Will is meant to be an expression of his desire and therefore, may result in disinheritance of some and

grant to another. In the instant case, wife of the testator, Bhagwan Kaur alone had lived with the deceased and only she had looked after him

throughout his life. - The other daughters were all happily married a long time ago and in their weddings the testator had spent huge amount of

money. In his own words, he had spent more than what they would have got in their respective shares out of testators property.

That was a case where the children were disinherited and the testator chose to bequeath his property in favour of his wife who looked after him

throughout his life. But, in the instant case, the plaintiff has not come out with any iota of evidence that she took care of the, testator throughout his

life. Nothing is on record to destabilize the robust testimony of DW1 to the effect that the plaintiff is a total stranger to the family of the testator.

The children were disinherited and the wife was preferred for bequeathing the property of the testator in the aforesaid case. But, the instant case

can be easily distinguished from the facts and circumstances of the aforesaid case.

Though the defendants have not adduced any evidence to establish their plea of undue influence and coercion brought'' on the testator to

execute the Will bequeathing the prime property in favour of the son of the plaintiff, the above facts and circumstances gathered from the testimony

of P.Ws.1 and 2 would go to show that the Will has been executed with the active involvement of the plaintiff by engaging people within her

proximate circle. This is nothing but sheer undue influence brought on the testator who was fighting for life in the hospital. The testator might have

been in sound and disposing state of mind, but, the manner in which the Will was executed would disclose that some undue influence has been

brought on the testator when he was virtually sinking during his treatment in the hospital. Of course, a Division Bench of this court in Sadagopan,

K. v. K. Yamunan 2002 (2) CTC 641 has observed that when the testator has executed the Will in a sound and disposing state of mind and no

evidence was forthcoming to establish the plea of coercion taken by the defendants, the it is to be held that the will has been proved. That was a

case where a doyen of the Bar, who practised for about seventy long years, had scripted a holograph Will. There was virtually no iota of materials

in that case to support the plea of coercion taken by the defendant. But, this case can be factually distinguished. Further, this court has held in the

facts and circumstances that some undue influence has been brought on the testator in the absence of the legal heirs to script the Will in

controversy.

It is held that the Will sought to be propounded by the executrix is shrouded in suspicious circumstances. Further, undue influence has also

been brought on the testator to script the Will. Therefore, though the subject Will was executed by K. Jagam on 18.12.1982 in a sound and

disposing state of mind, it had been executed in a suspicious circumstance with full participation of the propounder who had brought on undue

influence on the testator to execute the Will. The issues are answered accordingly.

In the result/ the plaintiff is not entitled to grant of probate as sought for. The suit stands dismissed. There is no order as to costs.