Rachel Sukumari vs Samuel Rajashekar Mathias and Others

Chidananda Ullal, J.—In this appeal, the appellant had challenged the order passed by the Trial Court, granting the Letter of Administration in favour of the respondent-plaintiff.

I heard the learned Counsel for the appellant, Sri B.V. Krishna on the one side and the learned Counsel appearing for the respondent-plaintiff, Sri K.M. Nataraj on the other, I have, also gone through meticulously, the Trial Court, records.

2a. The learned Counsel for the respondent No, 3 Sri S.K. Acharya had adopted the arguments of Sri K.M. Nataraj.

It was vehemently argued by Sri B.V. Krishna that the Trial Court did not pass a just judgment in the case, based on material evidence of record. It was also argued by him that the Trial Court did not appreciate the suspicious circumstances in the execution of Ex.P.2-Will. According to Sri Krishna, the following are the suspicious circumstances.

(i) That the disputed will had been placed before the Court for the first time by the respondent-plaintiff after 20 years of its execution by the testator.

(ii) That though the testator had equal love and affection towards all his children, the bequeaths made by him to all the children did not reflect the said fact, inasmuch as there was disproportionate shares in the bequeaths made by the testator.

He therefore prayed that the judgment and decree passed by the Trial Court be set aside. In support of his argument, he has cited the following decision: H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others,

On the other hand, the learned Counsel appearing for the respondent, Sri K.M. Nataraj, argued that there is no substance in the argument advanced by the other side. According to him, the Trial Court had passed a just judgment and decree in the case, based on the material evidence on record, very well produced by the contending parties. Sri Nataraj had also pointed out that the testator in addition to the execution of Ex, P2- Will, had also prepared a hand plan showing the different shares he had set out in the names of different sharers in the Will.

It is pertinent to mention here that though the Trial Court had sent the records, it did not send the original Will-Ex.P2. Therefore, this Court had to write to the Trial Court to send Ex.P.2-Will in original, whereupon, Ex.P.2-Will, had been sent by the Court below along with the hand plan stated to have been prepared by the testator himself, showing different portions of the bequeaths made by him in favour of his eight children living then, under a RPAD cover. The said RPAD cover thus received by this Court was opened in the open Court on 4-4-2005, in the presence of the learned Counsel appearing for the parties.

I have gone through, in detail, the judgment cited by Sri Krishna i.e H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, . In the said decision, the Supreme Court had held that in the matter of execution of Will, the law applicable is Section 63 of the Indian Succession Act. It further held therein that to prove the execution of the will, one or the attestors had to be examined by the propounded as per Section 68 of the Evidence Act. I have examined the said position in the matter of execution of the Will and further in the matter of proving of execution of the Will by the propounder, the respondent -plaintiff. That I discussed in detail as herebelow.

Sri K.M Nataraj had cited the following decisions:

Maria Stella, Karunai Nesam and David Mohan Babuji Vs. T. Joseph Catherine, T.X. Francis, A. Rosalin Stephen, N. Bernard, S. Christina, S. Philomina, S. Lidwin, S. Josephina, rep. By mother and guardian and A. Rosalin Stephen,

Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee (dead) by L.Rs. and others,

RAMABAI PADMAKAR PATIL (DEAD) THROUGH L.RS. AND ORS.. v. RUKMINIBAI VISHNU VEKHANDE AND ORS. ILR 2004 Kar. 440

In the first decision, the Madras High Court had held at para 37 as follows:

"37. The remaining question is whether the testatrix had executed the documents Exs. A1 and A2 is sound disposing state of mind. Regarding the illness, except the counter affidavit, no other evidence was adduced by the appellants. It is not in dispute that the testatrix was alive for 9 years from the date of execution of Exs. A1 and A2. She executed three settlement deeds after applying her mind to the recitals in the Will and request of the settles to execute the settlement deals. Even according to R.W.2, the 3rd appellant, he was 15 years old when the testatrix died. So he should be only 6 years old at the time of execution of the said will and codicil, R.W.2 had deposed that he was studying at Madas till 1967. He was also admitted that the testatrix used to-visit him at Madras. When he admits that she was able to visit the 3rd appellant when he was studying at Madras till 1967, the case of the appellants that the testatrix was not in sound disposing state of mind throughout cannot be accepted. Even if the appellants arc able to establish that the testatrix was ill, that does not mean that she was not in sound disposing state of mind to decide the family matters and executing the documents. Ex. A68, dated 25-12-1954 clearly establishes that she entered into a partition along with others, which clearly establish that she was able to deal with the affairs of the family members of the family. P.Ws. 1 and 2 have deposed about the sound state of mind of the testatrix during the relevant point of time. In the present case, the respondents have not established that the testatrix was not in sound disposing state of mind to execute the documents Exs. A1 and A2".

In the instant case too, P.W.2 one of the attestors had deposed that the attestors was in disposing state of mind and that on the face of that evidence, the execution of the disputed Will-Ex.P.2 was taken by he Trial Court as proved.

In the second decision cited, the Supreme Court at para 4 had observed as follows:

"4. ...... idea behind execution of Will is to interfere with the normal line of succession, So natural heirs would be debarred in every case of Will; of course it may be that in some cases they are fully debarred and in others only partially. As in the present case, the two executors are sons of a half-blood brother of Saroj Bala, whereas the objectors descendants of a full-blood sister, the disinheritance of latter could not have been taken as a suspicious circumstance, when some of her descendants are even beneficiaries under the Will".

The last case cited by Sri Nataraj is on the point that, mere fact that the entire property was given to only one of the natural heirs, a widowed daughter, to the exclusion of others is not a suspicious circumstance when it was done with a view to make provision for the widow who had been left destitute at an early age - In the absence of any evidence showing that testator''s mental faculty was impaired and in view of the fact that she personally went to the Office of Sub-Registrar for registration of the Will and she died long after (45 months) execution of the Will, mere facts that the testator was very old, was hard of hearing and was unable to walk would not throw any doubt on genuiness of the Will.

Having gore through the above three decisions, it appears to me that all the three decisions cited by Sri. Nataraj are very much applicable to the case in hand, inasmuch as they all support his case.

In the light of the arguments advanced, T thought it fit and appropriate to read the trial Court records, more particularly, the plaint, the written statement filed by the appellant-defendant and the evidence produced by both the sides, evidence of the parties i.e. evidence of the respondent-plaintiff examined as P.W.1 evidence of the appellant-defendant examined as D.W.1 and evidence of attesting witness to Ex.P2-will, examined through Court Commissioner as P.W.2, I have also Looked into the documentary evidence on the file. Right here, I observe that the star witness in the instant case in hand, is P.W.2, the attesting witness. I read and re-read the evidence of P.W.2 meticulously. According to me, in giving the evidence before the trial Court, of course, the evidence of P.W.2 was recorded through the Court Commissioner. As I see, P.W. 2 who was one of the two attestors to Ex.P.2-will had given a graphic account-in a truthful and natural way, with regard to the execution of Ex.P2-Will. In this context, I feel it appropriate to record the detailed evidence of P.W. 2. The same is written in hand by the Court Commissioner and the same reads as follows:

"EXAMINATION-IN-CHIEF BY SRI M.B. MULIVA, ADVOCATE FOR PLAINTIFF

I knew one Mr. Salvadore Nicholas Mathias. 1 know that he had executed a Will. He told me that he would give his properties to his 9 (nine) children by means of a Will. He had asked me to go to his house at the time of execution of his Will It was about 20 or 23 years back now. He had executed a will earlier to which I had signed as a witness. After some time his son, Jeeva Rathna who had come down from Mumbai called me to his fathers house and thereafter Mr. Salvadore Nicholas Mathias had executed another will, who has told me that, that earlier will had to be cancelled. T now see the Will executed by Salvadore Nicholas Mathids. I now see my signature. I have also signed to the said will on all the pages. T have signed the will as a witness as desired by Salvadore Nicholas Mathias. The said Salvadore Nicholas Mathias had also signed to the said will in my presence. I identify the said will which is as per Ex.P2. My signatures in Ex.P2 are as per Ex. P2 (i) to (p). Another attesting witness had also signed Ex.P2 in my presence. I do not know his name, The said Salvador Nicholas Mathias was a Head Master, and he knew English. I do not know who was the scribe of the said Will. Salvadore Nicholas Mathias had read the Will and told me the contents in Kannada. At that time he was hale and healthy and was in sound disposive state of mind. When the aforesaid Salvadore Nicholas Mathias signed Ex.P2 I was not present. I had attested the said Will after Salvadore Nicholas Mathias told me that he had executed a Will Ex. P2. My eye sight of one eye is only perfect and another eye is not proper.

CROSS EXAMINATION BY SRI A.A. KINl, ADVOCATE FOR DEFENDANT NO. 2

From Subramanya Nagara of Udupi to Kukkikatte the distance is about 5 miles. From here to reach Kukkikatte one has to go to NH 17 Road, then to Ashirvad, Ambagilu, then to Udupi and from then to Kukkikatte. I visit this house frequently from Kukkikatte by car. I had been to Kukkikatte yesterday morning and returned in the evening. I visit Kukkikatte most of the time by car and some time by Autorickshaw. I attend the church on Sundays either at Udupi or at Kukkikatte. 1 am staying here on behalf of my son, who always visits. My children and their family members are residing at Kukkikatte. My son who is the owner of this house is now in Mumbai.

I do not know who was the scribe of earlier Will than to Ex.P2. I do not know who was the other witness to the said earlier Will. I do not remember also whether the said either Will was typewritten or handwritten. I do not remember whether the earlier will was in ledger paper or in ordinary paper. I can''t say as to how much time earlier the previous Will was executed by Salvadore Nicholas Mathias. I can''t say whether Ex.P2 is typed one or handwritten. I do not remember whether Ex.P2 is in ledger paper or in ordinary paper. I do not remember the exact day, month and year of Ex. P2. At the time of execution of Ex.P2 in the house of Salvadore Nicholas Mathias I was in his house for about one hour, I do not know whether Ex.P2 was registered or not. At the time of execution of Ex.P2, out of the sons of testator, S.R. Mathias, (P.W. 1), Jeeva Rathna and other family members were there including his daughters. I cannot name the daughter of the testator who were present at that time. I do not know that how many daughters were present.

So far T have not told execution of two Wills by Salvadore Nicholas Mathias as none had asked me. I do not know whether the sons of the testator were present when he told me that he had cancelled the earlier Will.

It is not true to suggest that Ex. P2 was not executed by Salvadore Nicholas Mathias.

It is not true to suggest that Ex.P2 was not executed by Salvador Nicholas Mathias and that I have not attested the same.

Mr. Salvadore Nicholas Mathias did not sign Ex.P2 in my presence but he told me that he had signed it. I do not know the name and address of the other attesting witness to Ex.P2. I have not seen the said attesting witness either before execution of Ex.P2 or thereafter, but on that day after he signed I signed Ex.P2. I do not know to which religion the other attesting witness belongs.

It is not true to suggest that I have not signed Ex.P2 as per the direction of the testator.

It is not true to suggest that the contents of Ex.P2 were not read over to me in Kannada.

It is not true to suggest that I am deposing falsely to help S.R. Mathias (PW.l)

It is not true to suggest that Salvadore Nicholas Mathias did not cancel the first Will and executed Ex.P2 as stated by me in the chief examination.

I cannot say when for the last time I had seen the earlier Will executed by Salvadore Nicholas Mathias from today.

I have not seen the earlier Will or Salvadore Nicholas Mathias alter the date of execution of said Will.

Re-examination-Nil."

As I see, the trial Court during the course of the impugned judgment had observed that delay in filing the case before the Court seeking issuance of the Letter of Administration was for the reason that the testator had created life interest in all the properties in his wife, Hanna Sulochana and that the wife had died in the year 1980.

Though with vehemence the Counsel for the appellant-defendant, Sri Krishna had argued that there were suspicious circumstances in the execution of the Will in question, having gone through the evidence on record carefully, word by word, I feel that there were no suspicious circumstances worth the name.

In this context, I feel it appropriate to advert to the written statement that came to be tiled before the Trial Court, by the appellant-defendant which reads as follows:

"1. The suit of the plaintiff is false, frivolous, vexatious. The same is unsustainable in law and on facts.

It is denied that the deceased Salvador Nicholas Mathias has died leaving behind his last Will and Testament dated 22-10-1974 and that as per the terms of the Will he has bequeathed his properties in favour of his 8 children. The alleged Will is got up, forged, concocted by the plaintiff and other sons of the deceased just to enrich themselves at the cost of others. The deceased at the relevant point was not in a position to execute any documents much less a Will as alleged. At any rate, the alleged Will must have been concocted by coercive tactics with the help of his close friends. Therefore, all other allegations which are contrary to the aforesaid facts are all false and hereby denied in toto.

It is denied that the alleged document styled as a Will is the last will and Testament of the deceased.

The suit has not been properly valued, all other allegations which are not specifically admitted are hereby denied.

The alleged signature and alleged bequeath as per the document produced alongwith plaint styled as a Will are not admitted and the plaintiff is liable to make strict proof of the same".

It is pertinent to note here that, in the written statement filed by the appellant-defendant, she did not refer to the inordinate delay in filing the Will before the Court and further more, she did not refer to the suspicious circumstances in the execution of the Will by the testator; probably, the suspicious circumstances is now pointed out before this Court for the first time, for the appellant-defendant is not interested in putting an end to the lie between the parties.

Right here, I feel it appropriate to extract the evidence of appellant-defendant, which reads as follows:

The learned Counsel for the respondent, Sri Nataraj had pointed out that the appellant-defendant wants to protract the proceedings, only for the sake of protraction of the eviction proceedings instituted as against her son-in-law by name Mohan Joswa, who is running a business in the premises that has fallen to the share of respondent-plaintiff, Samuel Rajshekar Mathias and his brothers, by name Prabhananda Mathias and Jeevarathna Mathias. In the evidence of appellant-defendant, at para No. 4, shall had deposed as follows:

From the above it is clear that the appellant-defendant has got a reason to protract the proceedings.

Sri Nataraj had also argued that none of the sharers except the appellant-defendant No. 2 had raised any objection in the matter of issue of Letter of Administration, for, all the beneficiaries under Ex.P.2-Will, got possession of the respective shares of the properties bequeathed and further more, the revenue records were also got mutated as per the Will, evidenced by Ex.R 14 to Ex.P. 17. As such, they do not have grouse with regard to the shares as per the Will.

It was also pointed out that none of the sharers, other than the appellant-defendant herein has got grievance as against the grant of Letter of Administration, This is for the peculiar reason that she has got to champion the cause of her son-in-law, one Mohan Joswa as observed as above. Therefore, he prayed that the instant appeal be dismissed.

Before proceeding further, I feel it appropriate to decide whether the disputed Will-Ex.P.2 is in tune with the requirement of the law. In this context, it is relevant to quote here Section 63 of the Indian Succession Act, which reads thus:

"63. Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition nor engaged in actual warfare, (or an airman so employed or engaged) or a mariner at sea shall execute his Will according to the following rules:-

(a) The testator shall sign or shall affix his marks to the Will, or it shall be signed by some other person in his presence and by his direction.

(b) 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 a Will.

(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has see some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary".

In the light of the above legal position, I have examined Ex.P.2-Will. The Will-Ex.P2 is in writing, duly signed by the testator and the Will is bearing the attestation of two witnesses i.e. P. W. 2 and another person by name Bekar Krishnayya. It is in the evidence of P.W.2 that there was another person whose name he did not remember at the time of giving evidence and both of them had signed Ex.P.2-Will as the attestors. On scrutiny, 1 noticed the said factual position. Therefore, I do not have any doubt to hold that the disputed Will-Ex.P2 is in total compliance of the legal requirement, and that it does not suffer from illegality in any way.

If the respondent-plaintiff examined P.W. 2, one of the witnesses at the time of adducing evidence before the Trial Court, that again, is in tune with Section 68 of the Evidence Act, which reads as follows:

"68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

(Provided that is shall not necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied).

I have to point out here, that Ex.P.2-Will had not come to the hand of the respondent-plaintiff from the deceased testator directly, for, in the cross examination in reply to certain suggestions made by the Counsel for the appellant-defendant, P.W. 1 had deposed as follows:

From the above, it is clear that the disputed Will had come to the hand of the plaintiff-propounded only through the appellant-defendant.

In para 4 of the evidence of the appellant-defendant, she had claimed that she was having the writing and the signature of her father (testator) and if that was so, nothing prevented her to produce the same before the Trial Court to prove that the signature in Ex.P.2-Will, was not that of the testator and further more, in her evidence, she would not have deposed that the signature at Ex. 2a to 2h in Ex.P.2 were that of her father (testator).

If the appellant-defendant here self had the disputed Will, which according to her was a concocted one, she would not have made over the same to the respondent-plaintiff for, it appears that the appellant-defendant herself had made over Ex.P.2-will to the respondent-plaintiff. From the said statement it also appears to me that there was no concoction as alleged by the appellant-defendant and the same had very naturally been executed by the deceased-testator in a very natural way and on the fateful day, it is also to be taken note that some of the sons and some of the daughters were very much present in the house of the testator.

Therefore, I for one, do not find any error on the part of the Trial Court in granting the Letter of Adminstration in favour of the respondent-plaintiff.

According to me, the instant appeal is filed only out of heartburning and not for any genuine grievance as such.

In view of the above conclusion I reached, I did not choose to advert to the decisions cited by either side in greater details, for, it appears to me that they are not necessary for to decide the instant appeal before me.

In the instant case in hand, it is pertinent to note that the testator was not a lay man. He was a retired Principal of a High School (the name of the High School was Christian High School), in Udupi Town and that he knew English and that the disputed Will-Ex.P.2 is in fact written in English language. Further more, the testator had given Kannada version of Ex.P.2-Will to P. W. 2. That I say with certainity, for P.W. 2 had given evidence to that effect.

For the aforesaid reasons, the instant appeal stands dismissed, with cost, in confirmation of the impugned judgment passed by the Trial Court.

I observe here that the appellant-defendant cannot have any grievance worth the name to file the instant appeal before this Court and as such, the respondent-plaintiff is entitled to for cost of this litigation. I quantify that cost of Rs. 15,000/- (rupees Fifteen Thousand). That I do, for the respondent-plaintiff appears to be a harassed man, both before the Trial Court and also before this Court, in the hands of the appellant-defendant and more importantly he had paid a fabulous Court fee of Rs. 5,778/-, besides paying towards litigation expenses and that the Letter of Administration granted by the Trial Court in the name and favour of respondent-plaintiff had enured to the benefit of all the sharers including the appellant-defendant No. 1; as such a small cost herein imposed as against the appellant-defendant No. 1 may be a small pinch very much bearable by her. Let her bear it to the satisfaction of the respondent-plaintiff, for all the troubles he had taken on himself to file the suit and further taking the same to the logical end in decreetal of the suit. Let that cost be now paid by the appellant-defendant to the respondent-plaintiff within a period of 3 months from the day of the order. In the event the appellant-defendant fails to pay the cost as herein above directed, the respondent-plaintiff is at liberty to recover the same by due process of law, as if he is holding a money decree for Rs. 15,000/- as against the appellant-defendant.

Appeal stands dismissed with cost as above.

Since the records sent by the Trial Court is no longer needed by this Court, Registry may return the records together with the copy of the judgment herein passed for the purpose of record of the Trial Court. It may as well return the original Will and the accompanying hand-plan along with.