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Judgment
B. Akbar Basha Khadiri, J.—This suit is for grant of Letters of Administration. One Shanmuga Subramaniam had two wives by name
Oppanai Ammal and Saradha Ammal. Through Oppanai Ammal. Shanmuga Subramaniam had one sun by name Ganapathy, the third defendant
herein and our daughter Vijayalakshmi Ulaganayagam, the second defendant herein. Through Saradha Animal, Shanmuga Subramaniam had four
daughters by name Mangayarkarasi Sankaranarayanan, Sivakamasundari Viswanathan the fifth defendant herein, Meenakshi Nagalingam the
fourth defendant herein and Venkatamam Muthu Kumar. Shanmuga Subramaniam was a great Tamil Scholar. He was working as Secretary to the
Legislative Assembly of Tamil Nadu and retired in 1974. According to the plaintiff Saradha Ammal while Shanmuga Subramaniam was in sound
state of disposition he had executed a Will dated 0 03.1992 Shanmuga Subramaniam died on 11.07.1992 Saradha Ammal has come forward with
the instant suit for issue of letters of administration on the basis of that Will. Mangaiyarkarasi Sankaranarayanan and Venkatamani Muthu Kumar,
the two daughters of the plaintiff Saradha Ammal, have given their consent to Saradha Ammal to receive the Letters of Administration.
The third defendant had not opposed the claim of the plaintiff by filing written statement.
Though defendants 1 and 2 filed written statement contending that Shanmuga Subramaniam was not in a sound state of disposition and during
February 1992, he was healthwise in very bad shape and therefore, could not have executed the Will, later they have withdrawn their defence.
The fourth defendant Meenakshi Nagalingam filed written statement contending that Shanmuga Subramaniam was suffering from advanced stage
of lung cancer during 1991 and he was bedridden. He was undergoing chemotherapy. He was not in a sound state of disposition. He had no
sufficient memory or intelligence to execute a document. She denied the execution and attestation of the Will dated 01.03.1992
The fifth defendant Sivakamasundari Viswanathan though gave her consent to the plaintiff to probate the Will by filing necessary affidavit, later
filed written statement contending that Shanmuga Subramaniam was suffering from lung cancer and was bedridden during 1991 and he was not in a
proper frame of mind to speak or write anything and that he had not left behind any Will. At the same lime, she had contended that the Will in
question is not the last Will of late Shanmuga Subramaniam, but he had left behind a last Will dated 31.05.1992 and therefore, the plaintiff cannot
seek Letters of Administration on the basis of the Will dated 01.03.1992.
The following issues have been framed for trial:-
1) Whether the Will dated 01.03.1992 is the legal declaration and last intention of the deceased:
2) Whether the Will dated 01.03.1992 is in away unnaturally improbable or unfair?
3) Whether the Will dated 01.03.1992 is validly executed and attested as per law?
4) Whether the T.O.S. for issue of Letters of Administration of the alleged Will of the deceased M. Shanmugasubramian is sustainable either in law
or in facts?
5) Whether the alleged Will said to be dated 01.03.1992 is true, valid and genuine?
6) Whether the deceased was in a sound disposing state of body, mind and health during the execution of the alleged Will said to be dated
01.03.1992?
7) What reliefs, the parties are entitled?
Issue Nos. 2, 3, 5 and 6: Ex.P1 is, the Will in question. It is the duty of the propounder to prove the due execution of the Will. Due execution in
relation to a Will has three aspects, first, that it was signed by the testator; second, that the testator was of sound disposing mind at that time; and
third, he understood the effect of the disposition made. If there are any suspicious circumstances surrounding the execution of the Will, the
propounder must remove the suspicions from the mind of the Court.
The propounder examined herself as P.W.1. According to her, late Shanmuga Subramaniam has executed the Will. To prove the execution, the
propounder has examined one of the attestors, Justice S.A. Kader as P.W.2. Though the propounder has not examined the other attestor
Tayumanavar, Tayumanavar was examined by the defendants. The attestors are highly placed persons in the society, so also the testator. All the
parties admit that the late Shanmuga Subramaniam was a great Tamil Scholar who has written several books on law in Tamil. He was an
intellectual who retired as Secretary of the Legislative Assembly, became Dean of the Tamil University at Tanjore and then became the Chairman
of the Language Commission which office he held till February 1992. D.W.1 Tayumanavar is a retired Superintendent of Police. P.W.2 and
D.W.1 are admittedly good friends of late Shanmuga Subramaniam. It is also evident from Ex.P3 to P.6 diaries that Shanmuga Subramaniam was
a person who has meticulously maintained diaries making entries in the book his day-to-day affairs. P.W.2 and D.W.1 have in unambiguous terms
admitted that Shanmuga Subramaniam had subscribed his signature to Ex.P1, the Will. Generally, in cases of this type, but for the evidence of the
attestor, evidence aliunde may not be available to prove the execution. In the instant case, the entry made in Ex.P6 diary, dated 01.03.1992 would
go to show that the testator himself admitted to the execution of the Will. Further, Ex.P8 a report in the Newspaper ''Dinakaran"" dated
11.05.1992 and Ex.P7 a report in a magazine ''Aside'' would go to show that the testator was able to give interviews to the dailies and magazines
indicating that he was in a sound state of disposition, after execution of Ex.P1 the Will. In fact, the testator had referred to his interviews to the
magazines in Ex.P6 diaries. Further, it is not the ease of the defendants that the testator had not executed the Will. From the evidence of the
attestors, namely, P.W.2 and D.W.1 and the entry in Ex.P6, it is crystal clear that Shanmuga Subramaniam had executed Ex.P1 the Will dated
01.03.1992. Thus the propounder has proved the first aspect of due execution.
It is for the attestor to prove that late Shanmuga Subramaniam was of sound disposing state of mind at the time of the execution of Ex.P1, Will.
Sound mind does not mean that the testator should have his mental faculties in their fullest vigour, but he should have the capacity to understand the
nature of his property, the memory to remember the relations and persons normally having claims on his bounty and also a judgment of his own in
making, the dispositions. The testator''s age, disease and mental weakness are important considerations in determining if the Will had been got
executed and assume importance in considering whether he was a person of sound mind. The testator was not a person of feeble mind. Both the
attesting witnesses vouch that the testator was a great Tamil Scholar with high calibre. It is not in dispute that the testator was suffering from lung
cancer at the time when the Will was executed, but there is nothing to show that the illness had crippled the mind and body of the testator. I have
already pointed out that the testator was a person maintaining diaries meticulously. In Ex.P6, he had mentioned that his illness, i.e., malignancy in
the liver, was deducted in November, 1991. His further diary entries show that he was attending to his personal and official works as usual. He
had been meeting his friends continuously. For the first lime, he was hospitalised during last week of December 1991 and first week of January
1992 and he was under drips for some time. Still his diary entires would show that he had been keeping good health. Though the defendants had
pleaded that Shanmuga Subramaniam became a vegetable and was confined to bed and did not even know what was happening around him, the
diary entries show that he had been visiting his friends including a sick person at Appollo Hospital P.W.2 Justice S.A. Kader had stated that
Shanmuga Subramaniam came in a car to his house and walked into his house and told him about the execution of the Will. P.W.2 is not an
ordinary person. He is a retired Judge of this High Court. As a Judge, he has the necessary capacity to say whether a person was in a sound state
of disposition or not. His evidence is that Shanmuga Subramaniam was in a sound state of disposition at the time when the Will was attested by
him. Even D.W.1 had not stated that the mental capacity of Shanmuya Subramaniam was impaired at the time when Ex.P.1 was executed. D.W.1
also admitted that Shanmuga Subramaniam was in a sound Male of disposition at the time when Ex.P1 was executed. That apart, Defendant No. 5
had pleaded that Shanmuga Subramaniam left behind a last Will dated 31.05.1992 i.e. Ex.D2 and that at the time of Ex.D2, Shanmuga
Subramaniam was in a sound state of disposition. If he was in a sound state of disposition during May 1992, it cannot be said that during March
1992, Shanmuga Subramaniam should not have been in a sound state of disposition. I hold that the second aspect of due execution has also been
proved by the propounder.
Now what is left for the propounder is to prove that Shanmuga Subramaniam understood the effect of the disposition made Ex.P1 is a
holographic Will, which has been entirely written, dated and signed by the testator. The very fact that the Will is written by the testator with his own
hand would clearly prove that he has understood the effect of the disposition made. I therefore, hold that the propounder has proved due execution
of the Will.
Now it is for the attestors to prove the due attestation of the Will. In order to prove due attestation of the Will, the propounder of the Will has
to prove that the attesting witness saw the testator signing the Will and they themselves signed the Will in the presence of the testator. The statutory
requisite on the part of the attesting witnesses is that they should have necessary animus attestandi or intention to attest the Will. I have already
pointed out that the attestors are P.W.2 Justice S.A. Kader and D.W.1 Thayumanavar a retired Superintendent of Police. They have in
unambiguous terms asserted that they saw the testator subscribing his signature to the document and they themselves signed the same in the
presence of the testator. That satisfies the requirement of the due attestation. I therefore, hold that the propounder has proved the due execution
and attestation of the Will.
The proof of due attestation and execution would not ipso facto entitle the propounder to seek for Letters of Administration. If there are any
suspicious circumstances surrounding the execution of the Will, the propounder must remove the said suspicious circumstances from the mind of
the Court. Based on Surendra Pal and Others Vs. Dr. (Mrs.) Saraswati Arora and Another, in Vyjayanthimala Bali, Smt. v. Rattan Chaman Bali (
1990 (1) L.W. P.27), His Lordship M. Srinivasan, J., (as he then was) has pointed out what are all the suspicious circumstances. The suspicious
circumstances would be (i) where the signature is doubtful; (ii) the testator is of feeble mind or is overawed by powerful minds interested in getting
his property, (iii) where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair and (iv) where there
are other reasons for doubting that the dispositions of the Will are not the result of the testator''s free Will and mind.
Applying these tests to the Will in question, it is clear that there can be no doubt about the signature of the testator, and that the testator was
not a person of feeble mind and his illness has not etched his state of disposition or physical condition of his body.
The disposition does not appear to be unnatural. It is admitted that the first defendant is the first wife of the testator and defendants 2 and 3 are
his children through the first wife. It is evident that there had been an estrangement between the testator and the first defendant. From Exs. P11 and
P12 letters it comes to light that the testator was paying maintenance at Rs. 300/- to the first defendant and the testator had written letters to her
that he would make arrangements for the continuous payment of maintenance to her even after his death. Under the main Will, the testator had
made the following provisions.:-
Within a period of six months from the death of my wife, S. Saradha Ammal, the said Venkatamani Ammal, shall pay Rs. 2,00,000/- (Rupees two
lakhs) to each one of my other three daughters, namely (1) Tmt. Mangayarkarasi Ammal (wife of Thiru P. Sankaranarayanan) now at
Thiruvananthapuram, (2) Tmt. Sivakamasundari Ammal (wife of Thiru R.S. Viswanathan) now at Madras, and (3) Tmt. Meenakshi Ammal (wife
of Thiru M. Nagalingam) now at Madras, and in case, the said payments totalling Rs. 6,00,000/- (Rupees Six lakhs) are not made, the property
shall vest absolutely on my abovesaid four daughters, namely, Mangayarkarasi Ammal, Sivakamasundari Ammal, Meenakshi Ammal and
Venkatamani Ammal with equal rights.
After my last daughter, Venkatamani Ammal, makes the abovesaid payments to the three daughters and gets the property absolutely vested on
her, she shall make the following payments, namely Rs. 40,000/- (Rupees forty thousands) to Thiru Ganapathi, Rs. 40,000/- (Rupees forty
thousands) to Tmt. Vijayalakshmi Ammal (who are my son and daughter through my first wife) and Rs. 20,000/- (Rupees twenty thousands) to
Oppanai Ammal, my first wife who is not living with me for the last forty years and more. My first wife and son and daughter through her as
mentioned above will have no other right except for the payments as stated above"".
He has not excluded any of his heirs from his inheritance. He had made an equanimous distribution giving reasons in the Will itself for such
distribution, which seated in the armchair of the testator and analysed, appears to be very natural. It is therefore, evident that there had been no
unnatural disposition. A very pale attempt was made by the defendants to show that the testator was unduly influenced to bring about the Will. The
fourth defendant in her written statement in paragraph No. 6 has pleaded as follows:-
The fourth daughter of the plaintiff Venkatamani is the most beneficiary out of the alleged Will, and the plaintiff is also under the clutches of the
said Mrs. Venkatamani and her husband"".
The fifth defendant had pleaded that since the plaintiff was attending on the testator for some time, she took advantage of the same and was in a
position to persuade the deceased to take several decisions in her favour. The fourth defendant had not pleaded that the testator was influenced by
the plaintiff. Her case is that the fourth daughter influenced the mind of the plaintiff. The fifth defendant though had stated that the plaintiff was in a
position to influence the mind of the testator, the disposition in the Will goes to show that the testator has not given any undue benefit to the plaintiff.
The plaintiff was given only life estate in the property. If at all, the plaintiff had influenced the mind, she would have certainly obtained a disposition
in her favour excluding all others. The plaintiff alone was not living with the testator during his last days, but the fifth defendant was also living with
him. It cannot be said that mere cohabitation would have resulted in exercise of undue influence. The defendants have not established that the mind
of the testator was influenced by the plaintiff.
It is clear that (i) the Will is a registered Will indicating the genuineness; (ii) it is a holographic Will entirely written, dated and signed by the
testator. Law makes a great presumption in favour of genuineness of holographic Will where his mind is apparent. The testator had not excluded
any of his near heirs from inheritance. The defendants have not established that there had been any undue influence exercised upon the testator to
execute the Will. I therefore hold that Ex.P1 is a genuine Will executed by the testator.
Issue No. 1: In the instant case, three Wills have been placed before this Court. They are Ex.P12 Will dated 25.09. 1987, Ex.P1 Will dated
01.03.1992 and Ex.D2 Xerox Copy of the Will dated 31.05.1992. So far as the first Will dated 25.09.1987 is concerned, both the parties admit
that that has been superseded by a subsequent Will. I have already pointed out that Ex.P1 Will is a true, valid and genuine Will executed by the
testator. Now it is pleaded by the fifth defendant that her father left behind original of Ex.D2 Will dated 31.05.1992. According to her that Will
superseded the Will dated 01.03.1992. Ex.D2 is not the original Will. It is only a Xerox Copy. Ex.D2 was marked through D.W.1 Thayumanavar
subject to the proof of admissibility and also subject to the fifth defendant satisfying the Court that she is entitled to mark the document through her
witness. Section 65 of the Evidence Act adumbrates cases in which secondary evidence of document may be given. Section 65 of the Evidence
Act recites as under:-
Cases in which Secondary Evidence Relating to Documents may be Given.- Secondary evidence may be given of the existence, condition or
contents of a document in the following cases:-
(a) when the original is shown or appears to be in the possession or power - of the person against whom the document is sought to be proved, or
of any person out of reach of, or not subject to, the process of the Court, or of any person legally hound to produce it, and when, after the notice
mentioned in Section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or
by his representative in interest;
(c) when the original has been destroyed or lose or when the party offering evidence of its content cannot, for any other reason nor arising from his
own default or neglect, produce it in reasonable time
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of Section 74;
(f) when the original is a document of which a certified copy is permitted by this Act. or by any other saw in force in (India) to be given in
evidence;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be
proved in the general result of the whole collection.
It is the case of the fifth defendant that the original is with the plaintiff D.Ws.1 and 2 would also mention that the deceased had given the original of
Ex.D2 to the plaintiff. Because the original is with the opposite party, the Xerox Copy was produced. It is evident that the fifth defendant or the
other defendants had not given any notice to the plaintiff to produce the document to lay the basis for letting in secondary evidence. Therefore, the
secondary evidence let in is inadmissible in evidence.
Even accepting for arguments side Ex.D2 is admissible, it is the case of the plaintiff that the original of Ex.D2 is a fabricated document. D.Ws.
1 and 2 had spoken about the execution of Ex.D2, but their evidence is quite conflicting. According to D.W.1 Thayumanavar, the testator
expressed his desire to execute a fresh Will on a particular date and on the very same date, he was admitted in the K.H.M. Hospital and that on
the next day D.Ws.1 and 3 and late S.R. Kone went and met Mr. Shanmuga Subramaniam in the hospital and the testator dictated the Will to Mr.
S.R. Kone who wrote the same and after the testator signing the document, D.Ws.1 and 3 attested the same, whereas D.W.3 the other attestor
would mention that the testator had expressed his desire to write a fresh Will during December, 1996 itself, and tour days prior to his admission in
the hospital, he again reiterated the same to D.W.3. That when D.Ws.1 and 3 met him in K.H.M. Hospital, the testator questioned why the Will
has not been prepared and he dictated the Will which was reduced to writing by S.R. Kone. Thus there is good Kit of contusion as to when
exact'') the testator expressed his desire to write the Will. If we accept the evidence of D.W.3, then such desire would have been expressed during
the end of 1991. Ex.P1 itself had been written during March 1992 and if we accept the words of D.W.3. the testator wanted to change Ex.PI2 the
Will and not Ex.P1 the Will. If we accept the words of D.W.1 it would appear that the testator expressed his desire to execute a fresh Will on
25.05.1992. the dale on which he was admitted in K.H.M. Hospital as per Ex.P13 and the Will was written on 31.05.1992.
D.Ws.1 and 3 are educated witnesses, one is a retired Superintendent of Police and another was the Deputy Secretary to the Finance
Department, Government of Madras. It cannot be said that they would give conflicting evidence with respect to an incident in which both
participated. Thus, doubt looms large as to when exactly the original of Ex.D2 was executed.
Next by considering the question as to why the testator wanted to change Ex.P1 Will, D.W.1 Thayumanavar had stated that the testator had
informed him that after execution of Ex.P1, the plaintiff had sleepless nights as the last son-in-law Muthu Kumar was behaving in a rude manner
with her. But D.W.3 would mention that the testator himself had an apprehension that his wife may not be looked after properly after him and
therefore, he wanted to change the Will. If one of the sons-in-law behaved in a rude manner, it cannot be said that the testator would have changed
the Will in such a manner to exclude all other daughters also from inheritance. If really, the testator thought that his wife may not be looked after
well by his daughters, then I do not think that he would have disinherited defendants 1 to 3 also from getting some benefits given under Ex.P1 the
Will
Coming to the question as to who exactly is in possession of original of Ex.D2, the attestors would mention that the testator sent for the original
from D.W.1 and handed it over to P.W.1. Even here their evidence is conflicting. D.W.1 had stated that after execution of Ex.D2, D.W.1 was in
possession of original Will as D.Ws.1 and 3 were exploring the possibility of registering the Will and that D.W.1 had taken Xerox Copies of the
Will and gave one copy to S.R. Kone and retained two copies with him. There is no need for obtaining Xerox Copies of the Will and retaining the
same with the scribe and attestor. D.W.1 had stated that the original Will was with him for two or three days and later at the instance of
Venkatamani, the fifth daughter, he had handed over the Will to the testator and the testator gave the same to P.W.1 and shouted at her. He would
mention that D.W.3 was also there when the document was handed over to the testator who in turn gave it to P.W.1. D.W.3 would mention that
the Will was in the custody of D.W.1 for five or six days, and then it was handed over to P.W.1. When there was an anxiety to register the Will,
there is no reason why the Will was not registered especially when the testator and the attestors were exploring possibilities of registering the Will
at the testator''s house.
As per Ex.D2, the sole beneficiary is P.W.1, the plaintiff herein. If really the original Will was handed over to her, she would have been more
anxious to get letters of Administration rather than to suppress the Will. It is not convincing that the original of Ex.D2 was given to P.W.1 and
P.W.1 had suppressed it. The most important question that arises is when exactly D.W.5 came to know of the Will. It should be pointed out that
Defendant No. 5 has given her consent by way of an affidavit dated 13.08.1992 to get Letters of Administration of Ex.P1 Will, then she had
issued an advocate notice alleging about the existence of the Will dated 31.05.1992 on 21.11.1994. She had filed an application to get herself
impleaded and in that application she had filed affidavit on 15.02.1996,''then finally she had filed her written statement on 31.05.1997. With all
hesitations and meditations, she had filed her statement at last. It is not as if Defendant No. 5 was not aware of the original of Ex.D2, if any.
D.Ws.1 and 2 had mentioned that before even the plaintiff instituted this proceedings there were discussions in the family about the partition of the
property and in that discussion, there were talks about the Will dated 31.05.1992 also. That shows that the fifth defendant was aware of the Will,
if any, dated 31.5.92. If that is so, there is no reason as to why and how the fifth defendant gave her consent for grant of Letters of Administration
to the plaintiff. To me, it appears that the original of Ex.D2 could have been brought up to defeat Ex.P1. It is pertinent to note that the fifth
defendant having given her consent for grant of Letters of Administration, has come forward to oppose the same after five years. D.W. No. 1 has
given requisite affidavit as per the provision of Order 25, Rule 1 of the Original Side Rules. Now she would give a go by, by speaking of existence
of another Will. I consider the last Will theory put forth by the fifth defendant is absolutely unacceptable. I hold that Ex.P1 the Will dated
01.03.1992 has the legal declaration and last intention of the deceased. Issue Nos. 4 and 7: In the result, the suit is decreed with cost. The plaintiff
is entitled for grant of Letters of Administration as prayed for in the suit on executing a personal bond for Rs. 5,000/-.