S. Romauld Amirtharaj vs M. Swaminathan (alias) D. Joseph and Others

Abdul Hadi, J.—This T.O.S. is for grant of Probate of the alleged will said to be dated 18.10.1972. When this T.O.S. came up for trial before me on 20.9.1989, neither the plaintiff nor the plaintiff''s counsel present in Court, However, I went through the original will and, to my amusement, I found that there was no signature or mark at all of the alleged testator, Miss M. Jaya Marie, in the will. I also found that the alleged Will was just written at the back side of three printed cause list papers of this Court. At any rate, in view of the absence of the plaintiff and his counsel, the matter was posted for dismissal next day, that is on 21.9.1989. On 21.9.1989 the plaintiff''s counsel appeared before me and at his request, it was adjourned once again to 27.9.1989. On 27.9.1989 both the counsel for the plaintiff and the defendants were present. I once again went through the alleged original Will and pointed out to the plaintiffs counsel the absence of signature of the alleged testator anywhere in the Will. He pointed out the following concluding passage and the attestation clause in the above said alleged will:� This will come into force after my demise. Signed and acknowledged by Miss M. Jaya Marie, above name as a last Will and Testament.... witnesses....

and submitted that the expression ''Miss M. Jaya Marie'' found therein is the signature of the alleged testator, Miss M. Jaya Marie. There is absolutely no merit in this submission. The said expression cannot at all be taken as the signature of the alleged testator. Further, it is found only in the attestation clause of the ''Will''. Further, normally nobody would sign with the prefix ''Miss''. Further, the above said clause only stated the fact that the document was signed and acknowledged by Miss M. Jaya Marie etc. At any rate, since the counsel represented that the above expression was the signature of the alleged testator, I asked him whether he has filed any document showing any other admitted signature of the alleged testator. Though he did not file earlier any such document, he showed me one letter alleged to have been written by the said Miss M. Jaya Marie. But the alleged signature of Miss M. Jaya Marie found therein was different. There was no initial ''M'' at all in that signature. Further despite my demand, the learned counsel was unable to show me any other document containing the signature of Miss M. Jaya Marie.

In the circumstances, it is clear that the alleged testator has not signed the alleged ''Will'' in this T.O.S. S. 63 of the Indian Succession Act which provides for the relevant rules for due and valid execution of the Wills, provides inter alia that ''the testator shall affix his mark to the Will or it shall be signed by some other person in his presence and by his direction'' (See clause (a) therein. So, it is clear that S. 63(a) is not satisfied in the present case.

I may also in this connection, point out one decision rendered by the Allahabad High Court in Leela Karwal v. J.D. Karwal AIR 1983 All. 386. There it was found that the name of the testator was written at the top of the document, but that there was no signature at all in any part of the document. In the circumstances, it was held, after referring to S. 63(a) of the above said Act, that the Will could only be treated as a draft Will and nothing more. So, in the present case also, I hold that there is no Will at all executed by the alleged testator as pleaded in the petition. Therefore, on that very ground, I dismiss this T.O.S. with costs. The above said alleged Will contains the alleged signature of two other persons (who are said to be ''attestors'') with the date 18.10.1972, written along with each of the said signatures. It must also be noted there that the Will as such does not bear any date. The petitioner has filed the affidavit of one of those alleged attestors, namely, S. John Jayaraj in the present case. In the said affidavit inter alia, the said S. John Jeyaraj states as follows�

On the 18th day of October 1972, I was present together with Mr. Clifford Masilamani at the house of the deceased at 120, Silver St., St. Thomas Mount, Madras-16, and we did then and there see the said deceased set and subscribe her name at foot of the testamentary paper in the English language and character hereunto annexed land marked with the letter "A", and declare and publish the same as and for her last Will and testament.

The petitioner also states in his verified petition inter alia, thus:�

The writing....is the last Will and testament of the said Miss M. Jaya Marie and was duly executed by her at Madras on 18th day of October 1972......

It is surprising how the said affidavit has been sworn to by the said S. John Jeyaraj and how the petitioner has made such a declaration in his petition, when there is no signature of the alleged testator in the Will at all. Prima facie, at least it appears that the said alleged attestor and the petitioner have made a declaration in the said affidavit and petition as the case may be, which is false and which each one of them either knows or believes to be false or does not believe to be true. Likewise, prima facie, it appears that the petitioner has corruptly used as true the above said affidavit knowing the same to be false on a material point. In the circumstances, I find that there is at least a prima facie, case for Ss.190 and 200 read with S.193 of the Indian Penal Code, to get attracted as against those persons. So, though I do not and should not express my conclusive opinion regarding the same, I am of the opinion that it is expedient in the interest of justice that an enquiry should be made under S.340 Cr.P.C. into offences under Ss. 199 and 200 read with S.193 of the Indian Penal Code which appears to have been committed by the above said S. John Jeyaraj and the petitioner herein in respect of the above said affidavit of the above said S. John Jeyaraj and the alleged ''Will'' of Miss M. Jaya Marie and this petition. Larger interest of administration of justice also demands that a fuller probe is made by the Criminal Court in this matter as to whether the alleged offences have been committed by those persons, so that such nefarious practices are not resorted to by other persons, particularly, in Probate proceedings. So, I direct the Registrar of this Court to make a complaint against the said two persons accordingly in writing and send it to the Chief Metropolitan Magistrate, Madras, for prosecution.