Back
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE F.M. IBRAHIM KALIFULLA & THE HONOURABLE MRS. JUSTICE R. BANUMATHI
J.Naval Kishore
Versus
D.Swarna Bhadran & Others
O.S.A. No.124 of 2001 and C.M.P.No.926 of 2005
Decided On : 03-10-2007
Will - Execution and attestation - Proof - Suspicious circumstances - Burden of proof - Estoppel - Family arrangement - Handwriting expert opinion - Admissibility - Corroboration.
Fact of the Case:
Plaintiff, a friend of the Testator, filed a suit for probate of the Will executed by the Testator in his favor. The Defendant, the Testator's son, contested the suit alleging that the Will was false and fabricated. The Defendant claimed that his brother Parasmul, with an oblique motive to grab the property, had manoeuvred the Will to become the owner of the properties, to the exclusion of other legal heirs.
Finding of the Court:
The Court held that the evidence adduced by the plaintiff to prove the execution and attestation of the Will was not convincing. The Court found that there were suspicious circumstances surrounding the execution of the Will, such as the conduct of the propounder, unnatural disposition and non-examination of beneficiary. The Court also held that the opinion of the handwriting expert was not sufficient to prove the genuineness of the Will, as it was not corroborated by other evidence.
Issues: 1. Whether the Will was true and genuine and whether the Will was executed by the Testator in a sound disposing state of mind. 2. Whether the learned Single Judge was right in accepting the evidence of P.W.s 2 and 3 as credible and opinion of handwriting expert PW-4, to hold that Ex.P-2 is genuine and last Will of Testator Javantharaj?
Ratio Decidendi: 1. The burden of proof of due and valid execution of a Will is on the propounder. 2. Court granting Letters of Administration/Probate must satisfy itself not only about the genuineness of the Will, but also satisfy itself that it is not fraught with any suspicious circumstance. 3. Opinion of handwriting expert is a weak type of evidence and the Courts should not consider it as conclusive.
Final Decision: The Court set aside the Judgment in T.O.S.No.29/1993 and allowed the appeal. T.O.S.No.29/1993 stood dismissed.
R. Banumathi, J.
This intra-court appeal is preferred against the Judgment and Decree in T.O.S.No.29/1993 dated 212. 2000, granting probate in respect of Will of late Javantharaj, in favour of Executor of the Will - Swarnabadran
2. The parties are related as under :- Javantharaj (23.07.1991) | ---------------------------------------------------------------------------------------------- | | | | | | | Champalal Mahendra Kumar Naval Kishore Parasmul Vimala Manjula Suseela | | | gone in adoption Defendant Beneficiary <.-----daughters-------->
3. Brief facts giving rise to this appeal are as follows:-
Plaintiff is a good friend of Testator Javantharaj. Javantharaj had properties and leased-hold rights in Madras City and Rajasthan and had other assets. By the suit Will, the Testator appointed the plaintiff as Executor and is said to have bequeathed his properties in favour of his last son Parasmul and grandsons - Vijayakumar S/o Mahendra Kumar, Devkiran S/o Naval Kishore and P.Prasanth Kumar S/o Parasmul.
The Will had been attested by Attesting Witness viz., Jayakumar and Seshmul. Stating that the Testator had executed the Will in a sound disposing state of mind, and undertaking to duly administer the property and render proper accounts, the plaintiff has sought for probate of the Will.
4. The Executor had filed O.P.No.705/1992 for grant of probate. The Defendant had filed Caveat and hence the Probate O.P. was converted as regular suit, in terms of Section 295 of the Indian Succession Act.
5. The Defendant contested the suit alleging that the suit Will is false and fabricated. According to the Defendant, his brother Parasmul with oblique motive to grab the property belonging to his father and to deprive the Defendants and other legal heirs, had manoeuvered the Will to become the owner of the properties, to the exclusion of other legal heirs. One of the Attesting Witness to the Will viz., Seshmul had filed an affidavit explaining the circumstances under which he was constrained to affix his signature to the document. The Defendant had also filed a civil suit C.S.No.509/1994 for partition and recovery of his share in the estate of his father and the same is pending and the Defendant prayed for dismissal of the suit.
6. On the above pleadings, four issues were framed - Whether the Will was true and genuine and whether the Will was executed by the Testator in a sound disposing state of mind. On the side of plaintiff, Executor Swarnabhadran examined himself as PW-1. PW-2 J.Jina Rajadoss, son of Attesting Witness Jayakumar and Advocate Natarajan (PW-3) were examined. One private handwriting expert Bennett was examined as PW4. Exs.P-1 to P-15 were marked. On the side of Defendants, another attesting witness Seshmul was examined as DW-1. Defendant was examined as DW-2. Exs.D-1 to D-29 were marked. Hand-writing Expert from Tamil Nadu Forensic Science Department [TNFSD] was examined as CW-1. His report and Photographs were marked as Exs.C-1 to C-4.
7. Upon consideration of oral and documentary evidence, the learned Single Judge found that the evidence of P.W.s 1 to 3 is trustworthy and credible and the learned Single Judge held that the signature found in Ex.P-2-Will is the signature of Javantharaj, the Testator. Insofar as the opinion of the handwriting expert, the learned Single Judge found that the report given by PW-4 – Bennett is on scientific basis and the learned Judge discarded the evidence of CW-1, handwriting expert from [TNFSD]. Referring to AIR 1978 SC 1202 [Brij Mohan Lal v. Girdhari Lal], the learned Single Judge was of the view that the said decision was more or less similar to the facts of the case and observed that Defendant Naval Kishore was disobedient to his father and that is why Testator chose to ignore him. Observing that the execution of the Will was duly proved, the learned Single Judge decreed the suit, granting probate in favour of the Executor Swarnabhadran.
8. Challenging the Judgment of the lea
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
