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Judgment
The dispute is between the testator''s wife and testator''s brother''s son, daughter-in-law and grandson. The first respondent filed O.S.No.36 of 1984 for a declaration, injunction and in the alternative for possession of seven items of properties. The appellants resisted the suit on the ground that these properties were bequeathed to the first appellant under a registered Will dated 15-02-1984; and that, on the same date, two sale deeds were also executed by the testator in respect of other properties. Ex-B4, sale deed is in respect of item No.3 of the suit property. Ex-B4, sale deed is with regard to item Nos.1 and 2. Ex-B5, Will is with respect to item No.4 of the suit property. The Trial Court rejected the Will and the sale deeds as not believable and decreed the suit. Against this the appeal has been filed.
The plaintiff/ the first respondent died pending appeal and the second respondent has come on record as her legal representative.
The learned counsel for the appellants would submit that the Court below erred in decreeing the suit. Royappa Padayachi, the testator and the first respondent herein were married for several years and had no issues. The said Royappa Padayachi had earlier executed two Wills, Exs-B1 and B2, on 27-05-1982 and 01-06-1982 bequeathing properties to the first appellant and to the first appellant''s sister. In October 1983, Royappa Padayachi was ill with jaundice and the appellants, who are living in Neyveli went over to Maruvoi Village, the place of Royappa Padayachi and the first respondent, when they received some information that the first respondent was not taking care of the testator. So they brought the testator and the first respondent to Neyveli for treatment. After a few days in or about the first week of February 1984, the first respondent returned to Maruvoi. The physical condition of Royappa Padayachi deteriorated and he expressed a desire to make some arrangements regarding his properties. Accordingly, Exs-B3 to B5 were executed and registered and duly attested. Though initially Royappa Padayachi wanted to execute a settlement deed in favour of the first appellant, who was then a minor, he was informed that the brother''s grand son cannot be recipient of the gift and therefore, sale deeds were executed. The first respondent has been given a right to live in the residential property. Royappa Padayachi returned to Maruvoi in the third week of February. There he was insulted and threatened by the first respondent and her brother. Therefore, Royappa Padayachi returned to Neyveli. He also lodged a Police Complaint to the Vadalur Police on 22-02-1984. The learned counsel submitted that the execution of Exs-B3 to B5 must be seen in this background. The Will has been duly executed and attested and cannot be rejected. It was pointed out that the appellants, had examined the scribe and one attesting witness who had also spoken of the testator''s mental capacity. Once the Will has been proved by examining the attestor and scribe, the Court ought not to suspect the Will. It was submitted that the reasons given by the Trial Court for rejecting the Will were totally unsustainable. The mere fact that the testator''s brother''s grandson was the beneficiary cannot be a reason for rejecting the Will. It was only natural that Royappa Padayachi would like to give it to his kith and kin, since he had no issues through the respondent. It was also submitted that it was not as if he had not made any provision for the respondent. In Ex-B5, right of residence has been given to her. The learned counsel also pointed out that the first respondent in her plaint had accepted the genuineness of Ex-B1 and B2 which were earlier Wills. In those Wills also the beneficiaries were only Royappa Padayachi''s brother''s descendants. It was submitted that the very fact that Royappa Padayachi had lodged a complaint at Vadalur Police Station regarding the threat would prove his mental capacity. It was also submitted that even if under the sale deeds, Exs-B3 and B4 no consideration had passed, the transfer of title was complete once the sale deed was registered. Therefore, Ex-B3, B4 and B5 were all genuine documents and their legal effect cannot be questioned. The following decisions were relied on:
(1)V. THULASI DOSS VS. V. NANDA RAO 2002 I MLJ 85
(2) ANNAMALAI MUDALIAR VS. KRISHNAVENI AMMAL 2002 I LW 425
(3) Smt. Indu Bala Bose and Others Vs. Manindra Chandra Bose and Another, Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee (dead) by L.Rs. and others,
(8) Kristo Gopal Nath Vs. Baidya Nath Khan and Others,
(9)S. SUNDARESA PAI VS. MRS. SUMANGALA T. PAI (2001 AIR SCW 4951)
Mr. V. Narayanaswamy, learned counsel for the respondent on the other hand would submit that there were several factors which would arouse suspicion. The Will was dated 15-02-1984. The police complaint is dated 27-02-1984 and Royappa Padayachi died on 29-02-1984. The Court must see the picture as a whole which would reveal the evil machinations of the appellants. He submitted that a 70 years old patient who had been suffering from jaundice, whose leg and feet were admittedly swollen could not have been in a disposing state of mind. It was submitted that it was not true that the first respondent accompanied her husband and the appellants to Neyveli. On the contrary, the appellants suddenly came to her house and had taken away Royappa Padayachi on 12th or 13th of February, promising that they would treat him at Neyveli or Jipmer Hospital. There was no evidence to show that he was treated at Neyveli or Jipmer Hospital. Though mention of two Doctors was made, they were not examined. He would submit that in Ex-B5, the survey numbers are given wrongly. This itself would show that the Will was dictated only on the instructions of the appellants and that is why they have included the properties that do not belong to Royappa Padayachi. The learned counsel would submit gift deeds cannot be executed as sale deeds and that too on the instruction of a scribe. It was also pointed out that Ex-B10, the police complaint bore the signature of Royappa Padayachi whereas Ex-B3 to B5 carried only the left thumb impression. No reason is given why Royappa Padayachi could sign his name clearly on 27-02-1984,the date of Ex-B10, but he was incapacitated and unable to sign his name in Exs-B3 to B5. The proof of the Will cannot be accepted in the absence of examination of Sub-Registrar. Adverse inference ought to be drawn from non-examination of the two Doctors, Natesan and Shanmugam, when the appellants had not discharged the onus of proof on them they cannot get the benefit under the Will.
The question is whether Exs-B3 to B5 are valid and genuine documents and whether they have been proved in accordance with law.
From the evidence recorded on behalf of the defendants it is clear that they have endeavored to satisfy the conscience of the Court with regard to the execution and due attestation of the Will. The fact that Royappa Padayachi''s wife, who is the first respondent herein, has not been fairly treated under the Will cannot be a ground for suspicion.
In CORRA VEDACHALAM CHETTY VS. JANAKIRAMAN (2001 III CTC 283)a Division Bench of this Court held thus:
"The testamentary Court is a Court of conscience. It is not a Court of suspicion. It is not the law that, whenever a Will is sought to be proved in the Court, the Court should start with the presumption that the Will is not genuine, that it is fraudulent and that the person who chooses to probate the Will must remove all such suspicions even they are not unreal."
This was referred to in 2002 I MLJ 85 (cited supra) which is also a judgment of the Division Bench of this Court. Both these decisions arose out of probate proceedings.
In 2001 AIR SCW 4951 (cited supra)the Supreme Court held that uneven distribution of the assets among the children by itself cannot be taken as suspicious circumstances. And in AIR 1939 Cal 1987 the Division Bench of the Calcutta High Court held thus:
"What may be an adequate motive to one man may not be so to another, and it could never be a safe or sound rule to start speculating as to what might have been the motive which impelled the testator to make the alleged will provided there is evidence, and the Court has every right to call for such evidence and must, in fact, call for it, that the will was in point of fact executed as required by law."
The decision in Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee (dead) by L.Rs. and others, :deals with the Will of a person who was nearing 90 at that time. The Supreme Court held that the High Court had overplayed what it felt was suspicious circumstance.
In 2002 I CTC 244 , the Supreme Court held that there is no rule of law which requires a Doctor to be present when a Will is executed and that the Court below had allowed their findings to be influenced by suspicion and conjectures which have no foundation in the evidence.
In Manikkam Ammal and Others Vs. Appavu Mudaliar and Others, this Court has held that there is no bar against the testator affixing thumb impression and that by itself would not be a suspicious circumstance.
In Smt. Indu Bala Bose and Others Vs. Manindra Chandra Bose and Another, the Supreme Court held that any and every circumstance is not a suspicious circumstance and the suspicious circumstance must be regarding the genuineness of the signature of the testator, the condition of the testator''s mind, dispositions being unnatural, improbable or unfair and other indications to show that the testator''s mind was not free.
In the present case there is absolutely no finding by the learned Judge as to why the Will was held to be invalid or that it was brought about by fraud. The respondent does not dispute the earlier Wills. There is not much of a difference as regards the manner of disposition under the earlier Wills and the Will in dispute. Royappa Padayachi had clearly indicated even in the earlier Wills that his properties shall go to his brother''s branch. In fact, in the present Will, the first respondent has been given a right of residence in one of the items of the suit property, which was not given in the earlier Wills.
Let us examine the evidence of the witnesses with regard to execution of Exs-B3 to B5.
D.W.2 would state as follows:
"He brought the documents before the Sub-Registrar. The scribe wrote as per Royappa Padayachi''s instructions. Anbalagan and others signed as attestators. I do not remember the other witness. At the instance of Royappa Padayachi, the scribe directed the witnesses to attest the Will."
D.W.3, the scribe of Exs-B3 and B4 would state as follows:
"Because he was shivering he affixed his thumb impression. Exs-B3 and B4 were registered on the same day. He was in sound and disposing state of mind. I do not remember the witnesses. I took down the recitals as he dictated. He had fever."
D.W.4, one of the attesting witness would state as follows:
"I am the attesting witness in Ex-B5 who has signed as Anbalagan @ Alagan. The scribe wrote: I signed to attest the signature of the executant. Royappa Padayachi affixed his thumb impression on which page after the scribe wrote out its contents. I and Royappa Padayachi''s brother''s son-in-law signed as attesting witness. Royappa Padayachi saw us attesting the Will. Both of us saw Royappa Padayachi affixing his thumb impression. He was in a sound and disposing state of mind. It was written about 3 or 4 p.m. in the afternoon."
In Cross-examination:
"I have signed as attesting witness."
D.W.5, the son-in-law of appellants 2 and 3 would state as follows:
"I have signed as witness in Exs-B3 to B5. Royappa Padayachi had fever on that date, but he was mentally sound. Because he was having fever he affixed his thumb impression. We saw Royappa Padayachi affixing his thumb impression and he saw us attesting the deeds. Royappa Padayachi took me along to sign as a witness. He told him that he was bequeathing the property to his brother''s grandson. I, my father-in-law and another person went along. The scribe wrote what Royappa Padayachi dictated. The deeds were written only as per the instructions of Royappa Padayachi. He furnished the details. He was treated in Neyveli Hospital for jaundice.
D.W.6, the scribe of the Will:
"I am a document writer in Vadalur and I wrote Ex-B5. The witness saw Royappa Padayachi affixing his thumb impression. He saw the witnesses attesting. It was registered on the same date. He was mentally sound. I know him even before the date of the Will. He came to consult me a few days prior to the Will. I wrote as per Royappa Padayachi''s dictation. Rakshakan and one Anbalagan or Arivalagan are the attesting witnesses. Royappa Padayachi brought them along. To the question who was going to attest they came forward and attested. Royappa Padayachi was about 70 or 75.
D.W.7, the witness in Ex-B4:
"I am the witness in Ex-B4. Royappa Padayachi affixed his thumb impression, in which page thereafter I signed as witness. He had fever. He himself said that since he was shivering he would affix his thumb impression."
The evidence of all the witnesses show that Royappa Padayachi was having a high temperature on 15-02-1984 and that is why he affixed his thumb impression. The evidence is clear that though Royappa Padayachi could sign, because he was physically feeble that day he affixed his thumb impression. Nothing has been elicited in the cross examination to disprove the evidence in chief, of the scribe and the attesting witness that it was Royappa Padayachi who dictated the recitals of the Will. About 7 days thereafter Royappa Padayachi had gone and given a Police Complaint to the Vadalur Police Station, which is also taken on file and subsequently, the first respondent and her brother have also obtained anticipatory bail. The Court below has commented on the fact that while Royappa Padayachi is alleged to have executed Exs-B3 to B5 by affixing his thumb impression, he has signed his name clearly in the Police Complaint, which is a week later; and that, if Royappa Padayachi had been feeble on 15-02-1984, he should have become more feeble, when lodging the police complaint. A Will cannot be rejected on the basis of surmise. It must be remembered that on 15-02-1984 the testator also executed two sale deeds whereas on the date on which he gave the complaint only once his signature had to be obtained. In these circumstances, it is quite possible that the frail old man preferred to affix his thumb impression in the Will and the sale deed, since he had to do so several times; whereas he signed as usual in the police complaint. The evidence also shows that it was only Royappa padayachi who requested the witnesses to go along to the Registrar''s Office; and that, he dictated the manner in which the properties should be bequeathed. So it is clear that he knew what he was doing and he was not subject to any force, duress, coercion or undue influence. In fact in the plaint while there is an averment regarding the sale deeds being vitiated by fraud and misconception there is no such pleading regarding the Will.
At this point it is curious to note that in the plaint the respondent would state that,
"defendants 2 and 3 came to Maruvoi in or about the 12th or 13th of February 1984. They represented to (Royappa Padayachi) him that they would give him medical treatment at Neyveli or Jipmer Hospital at Pondicherry."
It is averred that in view of the apparent, honest and sincere suggestion made by the defendants 2 and 3, Royappa Padayachi went with them. But when Ex-A1, the paper publication dated 17-02-1984 is looked at, it runs as follows:
"vdJ fl;rpf; fhhpapd; fzth; jpU/ uhag;g gilahr;rp mth;fs; neha;tha;g;gl;L RthjPdkpd;wp kpft[k; nkhrkhd epiyapy; /// rpy khj'';fshf,Ue;J tUfpwhh;/ mth; mt;thW ,Uf;Fk; epiyapy; mtUf;F itj;jpak; ghh;g;gjhf bgha; brhy;yp mtUila mz;zhhpd; kfdhd khpanuh$hvd;wiHf;Fk; khpa n$hrg; vd;fpwth; miHj;Jr; brd;WxU khjkhfpwJ. mtuJ fztiu v'';F itj;Js;shh; vd;W bjhpatpy;iy/ nfl;lhy;. flY}h; M!;gj;jphpapy; cs;shh; vdt[k;. nfhhpnkL M!;gj;jphpapy; cs;shh; vdt[k; brhy;yp tUfpd;whh;/@
So according to Ex-A1, a month before 17-02-1984 i.e., in January 1984, the appellants had taken away Royappa Padayachi promising to give him treatment. This shows that their plaint averments cannot be true. Ex-A53 is representations allegedly made by the first respondent to the Hon''ble the Chief Minister of Tamil Nadu. In that it is alleged that on 26-02-1984, the respondent and others came to her house and with the help of the Vadalur Sub-Inspector searched her room and took away some gold, cash etc. The respondent has stated in her evidence that she did not take any steps thereafter. In fact, there is nothing to show that the facts averred in this complaint are true. In the plaint there is absolutely no mention of what is alleged to have happened on 26-02-1984. All these factors, only probabilise the case of the appellants that when they heard that the first respondent was not taking care of her husband, who is their uncle, they took both of them to Neyveli where the respondent stayed for some time and then returned; and that, Royappa Padayachi''s condition did not improve. He executed the Will and the sale deeds and then went back to his residence where he was treated badly; and that, he was also asked by the respondent and her brother to return to the persons whom he intended to benefit. It is clear that the first respondent and her brother were aware that Royappa Padayachi had executed these documents knowing fully well the implications of Ex-B3 to B5. That is why they chose to effect a paper publication on 17-02-1984, alleging that Royappa Padayachi had been mentally unsound, and that his whereabouts were unknown for the past one month. The respondent''s case is difficult to believe.
The attack on the sale deeds Exs-B3 and B4 was answered by the learned counsel for the respondent placing reliance on 2002 I LW 425 wherein it has been held that the payment of consideration is not a sine qua non for the completion of a sale u/s 54 of the Transfer of Property Act and non-payment of price does not prevent passing of title.
In this case, even the factors which were alleged as vitiating the sale deeds, the pleas of such as fraud and non-est factum have not been proved. The evidence shows that Royappa Padayachi knew exactly what he was doing and has executed the sale deeds. Perhaps, because of his ailment, the appellants have been doubly careful about examining the witnesses and the scribe of the sale deed and the testator and the scribe of the Will so that no suspicion will attach to the execution of the sale deeds or the due execution or attestation of the Will. The Court below wrongly holds that though no question was asked about the mental capacity of the testator it is clear because his hands, feet and stomach were swollen, that he could not have done anything of his own free will. The evidence regarding execution and attestation is clear and natural. The discrepancies with regard to the properties mentioned in the documents are not of such a nature as to raise doubts regarding the Will. The non-examination of Doctors also is not fatal to the appellants'' case. The near-exclusion of the wife of the testator is also natural in the circumstances of the case and in any event, on that ground the Will cannot be disbelieved. There is no basis for coming to a conclusion, that Ex B3 to 5 are not true.
In the judgment already extracted in 2001 CTC 283 it was held that,
"In this context, the conduct of the persons who raise the alleged ground for suspicion is also to be looked at, to know as to how credible are the grounds for suspicions sought to be raised by such persons. In this case, the suspicion is sought to be raised by a person who is keenly interested in making the Will ineffective and whose conduct is far from one which would inspire confidence in truthfulness of his statements."
Here the conduct of the persons who raised the ground of suspicion is not above board. Whereas the finger of doubt cannot be easily pointed at Ex-B3 to B5 when no reason has been given by the Court below to throw overboard the evidence of D.W.2 to D.W.7, the scribe and attestors. The appellants have done all that they can to establish the genuineness and validity of Exs-B3 to B5.
In these circumstances, the judgment of the Trial Court must necessarily be set aside. The appeal is allowed. No costs.