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2001 Supreme(Mad) 611
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM
P. Sivasubramaniam, Plaintiff - Appellant
Versus
S. Karthikumar and Another, Defendants - Respondents
T.O.S. No. 19 of 1999
Decided On : 14 June 2001
The main legal point established in the judgment is the requirement to prove the genuineness and authenticity of a Will, especially in the presence of suspicious circumstances, as per the Indian Succession Act, 1925, Section 213.
Headnote:
Probate - Last Will and Testament - 29-12-1992 - [Indian Succession Act, 1925, Section 213] - The court discussed the execution and validity of the alleged Will dated 29-12-1992. The key legal provisions discussed were the requirements for a valid Will under the Indian Succession Act, 1925, Section 213, and the principles of suspicious circumstances surrounding the making of a Will. The court's decision was influenced by the failure to prove the genuineness of the Will in light of suspicious circumstances.
Fact of the Case:
The suit was filed for the issuance of a Probate in respect of the Last Will and Testament of late N. Savitri executed on 29-12-1992. The plaintiff, the husband of the deceased, sought probate alleging that the Will was executed in the presence of two witnesses.
Finding of the Court:
The court found that the plaintiff failed to prove the execution and attestation of the Will. It held that the Will could not have come into existence on 29-12-1992 as contended by the plaintiff and that it could not be called a genuine document.
Issues: The issues revolved around the truth, genuineness, and validity of the alleged Will dated 29-12-1992 and the entitlement of the plaintiff to the issuance of probate.
Ratio Decidendi: The court's decision was based on the failure to prove the genuineness of the Will in light of suspicious circumstances, including the absence of compelling reasons for the execution of the Will, discrepancies in the evidence, and the lack of explanation for the non-examination of the second attesting witness.
Final Decision: The suit was dismissed, and no costs were awarded due to the relationship between the parties.
This suit has been filed for the issuance of a Probate in respect of the Last Will and Testament of late N. Savitri executed on 29-12-1992.
2. Plaint averments are as follows :
The defendants are the son and daughter of late Mrs. N. Savitri. Savitri died on 5-2-1994 at No. 7, Solaiappa Naicken Street, Madras-7. The testatrix executed her Last Will and Testament on 29-12-1992 at the said address in the presence of two witnesses, who are well known to the testatrix. Plaintiff is the sole executor appointed under the Will. The testatrix died leaving behind her the plaintiff-husband, first defendant-son and the second defendant-daughter. The testatrix bequeathed four items of movable properties mentioned in the Will. Plaintiff undertakes to duly administer the properties and credits of the testatrix. Hence the suit.
2-A. The second defendant filed a written statement alleging that her mother has not executed any Will during her lifetime. Plaintiff is the father of D2. The testatrix had deposits with various financial institutions including Purasawalkkam Permanent Fund. The husband of the testatrix, the plaintiff herein was attending to all these transactions and he used to take the signature of the testatrix in blank papers for the abovementioned transactions. The plaintiff has made use of those signatures after the demise of Mrs. Savitri. The testatrix was having love and affection towards D2. The second defendant married a person of her choice with the consent of her mother, which was not liked by the plaintiff. The alleged Will is a fabricated one. Mrs. Savitri was hale and healthy on 29-12-1992 and hence there is no need for her to execute a Will. The terminal benefits of an employee is not bequeathable under a Will. The alleged attesting witnesses are only friends of the plaintiff. Hence the suit may be dismissed with costs.
3. On the above pleadings, the following issues were framed :
1) Whether the Will alleged to have been executed by Savitri dated 29-12-1992 filed along with the suit is true, genuine and valid?
2) Whether the plaintiff is entitled to the issue of probate as asked for ?
3) To what relief the plaintiff is entitled to ?
4. ISSUES 1 TO 3 :- The plaintiff has filed this suit seeking for issuance of a probate in respect of the Last Will and Testament executed by Savitri on 29-12-1992.
5. The plaintiff has examined himself as P.W.1. His evidence is that he came to know about the Will which is marked as Ex.P1 only after the death of his wife viz. Savitri. She passed away on 5-2-1994. His friend Mr. Manmohan produced the Will and showed it to him after her death. At the time of his wife's death he was not in Madras. The cause of his wife's death was heart attack. The defendants who are son and daughter of P.W.1 were living with him at the time of his wife's death. His daughter left his house in December, 1992 i.e. prior to his wife's death without their knowledge. Their relations with their daughter were not cordial after their daughter left the house. His wife has made some provisions for their daughter in Ex.P1 Will. Ex.P1 is the Will executed by his wife on 29-12-1992 in the presence of two attesting witnesses. The signatures found in the Will are that of his wife. Both the attesting witnesses viz., C. R. Manmohan and T. R. Sivasankaran are his friends.
6. One of the attesting witnesses viz. Mr. R. Manmohan was examined as P.W.2. He would depose that he knew the Will executed by late Savitri. The signature found in Ex.P1 Will in all the pages is that of late Savitri. He signed in Ex.P1 as the first attestor. Himself and the other attesting witness Mr. T. R. Sivasankaran were present at the time of execution of Ex.P1 Will. Both of them signed in Ex.P1 Will in the presence of the testatrix. Two or three days prior to the execution of Ex.P1 Will the testatrix personally called him for the same. The plaintiff was not present either when the testatrix called him to be present during the execution of Ex.P1 or durin
