V. Neelakandan alias Narayanan vs N. Kaveri

M. Jeyapaul, J.—The petition was originally filed under Sections 232 and 276 of the Indian Succession Act 1925 seeking probate of the Will executed by K. Vaidyanathan. On caveat being filed by the respondent, the Original Petition was converted into Testamentary Original Suit. The plaintiff Neelakandan is none other than the brother of N. Kaveri, the defendant herein.

The plaintiff would contend that his father K. Vaidyanathan, who left behind the plaintiff and the defendant as the only legal heirs, died on 1.11.1996 after executing the Will dated 7.7.1995 bequeathing the schedule mentioned property in favour of the plaintiff. The Will was kept in a sealed cover and the same was registered as document No. 4 of 1995 in the office of the Joint Sub Registrar I, Saidapet. The Will was opened in the presence of the plaintiff and the defendant''s husband Sri. Nagarajan by the Joint Sub Registrar I, Saidapet on an application moved by the plaintiff. The deceased K. Vaidyanathan appointed the plaintiff as his executor. Having undertaken to duly administer the property and credits of the deceased K. Vaidyanathan, the plaintiff sought for grant of probate.

The defendant would contend that the alleged Will is a false and fictitious one. The Will does not reflect the freewill and desire, of the deceased K. Vaidyanathan. K. Vaidyanathan and his wife had immense love for both the plaintiff and the defendant. In fact, Vaidyanathan had special affection for the defendant. Vaidyanathan wanted to provide the property both for the son and the daughter. Vaidyanathan and his wife had discussion about the equal distribution of the properties in favour of the plaintiff and the defendant. Vaidyanthan was emotionally attached to his wife Seethalakshmi. Her death was a great tragedy and a deep shock to the defendant''s father. Before her death, she was undergoing treatment for breast cancer for about four years. The sudden death of Seethalakshmi affected the mental capacity of the father of the defendant. He was traumatic, inconsolable and uncohesive on account of the impact of the death of his wife. It was in such a mental sate of utter confusion, despondency and despair, the alleged Will is said to have been executed. The defendant strongly suspects that taking advantage of his mental weakness and confusion, the plaintiff had brought undue influence upon his father. Some inherent contradictions are found in the alleged Will. It is quite unnatural to deprive the share of the defendant. After all the defendant did not incur any debt for the marriage of the defendant. The plaintiff started working as casual worker earning a meager income eight years after the marriage of the defendant. The plaintiff was instrumental in coercing and influencing the defendant''s father for writing a testamentary document against his freewill and contrary to the truth. The defendant''s father was completely bedridden prior to his death and was repeatedly admitted to hospitals. There was no improvement in his condition. There is every possibility that the signature in blank paper would have been misused and misutilized for the purpose of bringing a document before the court. Therefore, there is no merit in the suit for the grant of probate.

The following issues were framed for determination:

Whether the Will dated 7.7.1995 is executed by the father of the plaintiff and the defendant by name Mr. K. Vaidyanathan, while he was in a sound and disposing state of mind.

Whether the petitioner/plaintiff is entitled to probate the Will.

On the side of the plaintiff, the plaintiff was examined as PW1 and one of the attestors to the Will by name L. Madhavan was examined as PW2 and Exs.P1 to P4 were marked. On the side of the defendant, the defendant was examined as DW1, but no document was marked on her side.

Issues 1 and 2: There is no dispute to the fact that the plaintiff and the defendant are the only legal heirs of the deceased K. Vaidyanathan. Vidyanathan had been living all along till his death with his son Neelakandan, the plaintiff herein. Vaidyanathan''s wife Seethalakshmi had been suffering from breast cancer for about ten long years and thereafter she breathed her last on 4.6.1995. The Will has come into existence on 7.7.1995 and the Testator Vaidyanathan has passed away on 1.11.1996.

Learned Counsel for the plaintiff would submit that the holograph Will had been deposited with the Joint Sub Registrar I Saidapet and formal proof would suffice to establish the execution and attestation of the Will. One of the attestors to the Will has cogently spoken to the sound and disposing state of mind of the Testator and the attestation of the Will. The death of Seethalakshmi was not a sudden one as she had been undergoing regular treatment for about ten long years for breast cancer. If undue influence had been brought upon the Testator, the latter would have definitely taken some steps towards cancellation of the Will during his survival for about 16 long months. Cogent reason has been given in the holograph Will as to why the defendant was disinherited. Therefore, the plaintiff is entitled to grant of probate, she contends.

Per contra, the learned Counsel for the defendant would submit that the Will contains a false statement of fact with regard to the debt alleged to have been incurred for the marriage of the defendant and the discharge thereof by the plaintiff. The reason given therein was not coherent. It reflects lack of mental capacity and sound and disposing state of mind. No sane person would have bequeathed his property within 33 days from the date of death of his wife. There is evidence to show that jewels of his mother was shared by both the plaintiff and the defendant. When there is absence of enmity between the Testator and the defendant, there is no reason for the Testator to disinherit the defendant, the testator has only half share in the schedule mentioned property. The sudden demise of the wife of the Testator had upset the mental equilibrium of the Testator and the same was taken advantage of by the plaintiff. Therefore, the plaintiff is not entitled to grant of probate, he would contend.

It is the propounder who is duty bound to establish that the Will was executed by the Testator and that at the time of execution of the Will, he was in a sound and disposing state of mind and having understood the nature and implication of the disposition he affixed his signature to the testament out of his freewill. It is also to be proved that he signed in the presence of the attesting witnesses and those attesting witnesses also signed in his presence. Once these elements are established, the propounder stands discharged of the onus which rests on him. But, where there are suspicious circumstances, the propounder will have to shoulder the onus and explain the suspicious circumstances to the satisfaction of the court before the Will could be accepted as genuine. Where the caveator levels allegations of undue influence, fraud and coercion, the onus rests on him to establish the same. The failure to discharge such onus will necessarily result in grant of probate, (see Surendra Pal and Others Vs. Dr. (Mrs.) Saraswati Arora and Another, .

The Testamentary Court is a court of conscience and not a court of suspicion. The object of probate proceedings is not to render the Will negative, but, to make it effective and render the terms of Will operative. The court has to bear in mind that the Testator is not available to depose before the court. The court cannot allow exploitation of this situation by unscrupulous caveators who choose to cull out imaginary suspicion to render the Will ineffective, (see Corra Vedachalam Chetty v. G. Janakiraman 2001(3) CTC 283).

The fact remains that the subject Will Ex.P1 is a holograph Will reportedly executed by the father of the plaintiff and the defendant. It is not in dispute that the said Will was deposited by the Testator with the Joint Sub Registrar I, Saidapet, Chennai. In fact the sealed cover containing the Will was registered and the same was opened after the demise of the Testator in the presence of not only the propounder but also in the presence of the husband of the defendant and one of the attestors to the Will. It is very pertinent to note that the signature found in the Will Ex.P1 was not disputed by the defendant. It has been held in Joyce Primrose Prestor Vs. Vera Marie Vas and Others, that in case of a holograph Will, there is a presumption of regularity and due execution of the Will. The case of a holograph Will is a special case which would require a different approach in considering the evidence on record to find whether the Will was duly executed and attested. It has been emphatically observed that what is required is only a formal proof of holograph Will. Very little evidence to prove due execution and attestation thereof alone is called for.

On a careful perusal of the Will, Ex.P1, it is found that the Testator has given very many reasons for disinheriting the defendant. The first and foremost reason assigned by the Testator for bequeathing the entire property in favour of the plaintiff is that the plaintiff had been looking after the Testator all along. Secondly, it has been stated therein that the plaintiff had to perform the obsequies on the demise of the Testator. The Testator has further referred to the gifts and dowries given by him at the time of celebrating the marriage of the defendant in a grand manner. He has also adverted to the loan he obtained for the purpose of celebrating the marriage of the defendant and the discharge of the said loan by the plaintiff. It appears that on the demise of his wife, he had given the entire jewels and other ornaments worn by her to the defendant on the 13th day of death of his wife.

If no cogent reason was assigned in the Will for disinheriting the other legal heir, there may arise some suspicion with regard to the execution of the Will by the Testator. Here is a case where the Testator has come out with very many reasons to disinherit one of the heirs and to bequeath the entire property in favour of the other heir. It is true that the plaintiff was not aware of the loan raised by his father for the purpose of celebrating the marriage of the defendant. It is also on record that the plaintiff was not in service earning a sizable amount for discharging the alleged loan obtained by his father for celebrating the marriage of the defendant. It is the version of the defendant that there was no occasion for her father to raise any loan inasmuch as he was carrying on a hotel business. The hotel business venture of the Testator is admitted by the plaintiff. It is in evidence that the Testator is a man of his own making. He used to take independent decisions without being influenced by the opinions of the other individuals. Neither the plaintiff nor the defendant could assertively depose before the court that the Testator had never borrowed money for the purpose of celebrating the marriage of the defendant. They speak from the circumstances under which the Testator led his life. It may be a case where he might have borrowed loan. The later avocation of the plaintiff might have helped the Testator to finally liquidate the debt he has incurred for the purpose of celebrating the marriage of the defendant. But, the fact remains that the propounder has not established that loan was raised by the Testator and the same was discharged by him. In fact his version is that he was totally unaware of the loan transaction his father had. If at all, the Will had been fabricated with the undue influence of the plaintiff on the Testator, the plaintiff would not have chosen to introduce such a controversial reason for bequeathal in the Will Ex.P1. Further, the court is not prepared to accept the aggressive arguments made on the side of the defendant that such a misstatement of fact in the Will gives rise to the presumption that the Testator was not mentally sound at the time of execution of the Will.

It has been observed in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, as follows:

There may, however, be cases in which the execution of the Will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder''s case that the signature in question is the signature of the testator may not remove the doubt cheated by the appearance of the signature; the condition of the testator''s mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the Will may appear to be unnatural, improbable or unfair in the light of relevant circumstances, or, the Will may otherwise indicate that the said dispositions may not be the result of the testator''s free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last Will of the testator.

A Division Bench of the Calcutta High Court has observed in Brajeswari Dasi v. Rasik Chandra 1925 CAL 739 as follows:

In order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property to one subject of his regard; but he must also have capacity to comprehend the extent of his property and the nature of the claims of others, whom by his will, he is excluding from all participation in that property; and the protection of the law is in no cases more needed, than it is in those where the mind has been too much enfeebled to comprehend more objects than one, and most especially when that one object may be forced upon the attention of the invalid, as to shut out all the others that might require consideration.

The plaintiff is very emphatic in his testimony that his father was physically and mentally fit at the time of execution of the Will. One of the attestors, PW2 also has reinforced the version of PW1 to the effect that the father of the plaintiff was in a sound and disposing state of mind. Had there been any imbalance in the state of mind of the Testator, he would not have ventured to jot down the whole text of the Will and proceeded to the Registrar''s Office and deposited the Will for the purpose of safety and security. The defendant has come out with a self-contradictory version during her deposition as to the period during which his father was mentally upset. During the course of chief examination, she would state that the moment her father was informed of the mortal disease of his wife, he was mentally upset and his behavioural pattern was quite abnormal. But, during the course of cross examination, she fumbled and deposed that only after the sudden demise of her mother, her father became mentally upset leading to loss of memory. The defendant, in her evidence has categorically admitted that on the first death anniversary of her mother, her father invited 63 Sumangalis and provided them with sarees and blouse. Had he been mentally upset, he would not have ventured to think of organizing a function in such a grand scale on the death anniversary of his wife. It is the admission of DW1 that such a function was organized by her father in a very meticulous way.

It is the case of the defendant that the demise of her mother was so sudden that shaked the mental and physical frame of her father. A critical comment was made by the learned Counsel for the defendant that the plaintiff had the audacity to say during the course of evidence that his father was not mentally upset on the demise of his mother. Here is a case where the mother of the plaintiff was ailing with mortal decease viz., breast cancer for about ten long years. During the last stint of such decease, the mother was completely bedridden. The father had to toil and moil with his wife when she was bedridden. Such a death of the mother of the plaintiff can by no stretch of imagination can be termed as so sudden to shake the mental and physical frame of the Testator.

The recital found in the Will as to the debt incurred by the Testator and discharged thereafter by the plaintiff cannot be considered as a suspicious circumstance of serious nature. It is true that the defendant, who is the other natural heir, was disinherited by the Testator. It is also true that the Testator had showered his love and affection not only on the plaintiff but also on the defendant. There was no marked enmity between the defendant and the Testator. But, the court finds that the Will is self-evident as to the disinheritance exercised by the Testator. In all bequeaths, there is disinheritance of some of the heirs. It may be unnatural to disinherit all the heirs of a Testator and bequeath his entire property in favour of a stranger. But, here, in this case, the exclusion of the daughter from the bequeathal was properly reasoned by the Testator in the Will.

As regards the undue influence and coercion, the court finds that the defendant, who is bound to discharge such onus of proof, has not chosen to lead any evidence to substantiate her allegation. Here is a case where the Testator had survived for about 16 long months after the execution of the Will. If undue influence and coercion had been brought on him, he would not have kept quiet for such a long time without bringing to light such alleged attempt of the plaintiff.

It is vaguely contended that there had been a proposal to give equal share of the suit property to the plaintiff and the defendant. Except the interested version of DW1, there is no other substantial testimony to reinforce such a stand of the defendant. The equal share theory propounded by the defendant was stoutly denied by the plaintiff.

A feeble attempt was made by the defendant to project a counter version as though the Testator has only half share in the suit property. No such plea was raised in the written statement. No document also is, forthcoming to establish such a plea made belatedly. Further, the question as to whether the Testator has full right over the property bequeathed is out of the domain of the Testamentary Court.

The plaintiff, by marking the Will, Ex.P1 and examining the attesting witness, PW2, has established the sound and disposing state of mind of the Testator and the execution and attestation of the Will, Ex.P1. Therefore, the plaintiff who has been named as executor of the Testator under the Will, Ex.P1 is entitled to grant of probate.

The suit is decreed. There will be no order as to costs. The Registry is directed to issue probate.