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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S.S. SUBRAMANI
Lakshmi
Versus
Renuka & Others
S.A.No.1739 of 1984
Decided On : 21-07-1997
WILL - GENUINENESS - PROOF - BURDEN - EXECUTION - ATTESTATION - REQUIREMENTS - SUSPICIOUS CIRCUMSTANCES - REGISTRATION - EFFECT - ADDITIONAL EVIDENCE - ADMISSIBILITY - LEGALITY OF LOWER APPELLATE COURT'S DECISION.
Fact of the Case:
Plaintiff filed a suit for declaration of title, execution of conveyance, and payment of share perquisites and belongings described in Schedule B by first defendant to plaintiff, and for other consequential reliefs. The suit property was allotted to Nataraj Chettiar under a Scheme of purchase on instalment basis by first defendant-Society. Nataraj Chettiar died on 30.7.1974, leaving behind his wife (second defendant), brothers, and their children. Plaintiff claimed to be a foster child of Nataraj Chettiar and his wife, brought up by them from infancy. Nataraj Chettiar executed a registered will on 22.4.1974 bequeathing the plaint property to plaintiff, reserving a right of enjoyment to the appellant during her lifetime. The will also prohibited the appellant from alienating the property. Plaintiff claimed that after the payment was made in full, the appellant was to get the sale deed in her name, but due to misunderstanding, plaintiff had to send registered notice to both defendants about her rights over the property. Plaintiff published a notice in a local daily about her right over the property. The appellant denied the will and claimed that plaintiff was never a foster child. The trial Court dismissed the suit, finding the will not genuine and executed through the father of the plaintiff. The lower appellate Court reversed the decision and decreed the suit. The second defendant appealed to the Supreme Court.
Finding of the Court:
The Supreme Court held that the burden of establishing the genuineness and authenticity of the will is on the propounder of the will. The execution of a will must be properly proved, which is a question of law or a mixed question of law and fact. The Court considered the evidence of the attesting witnesses, the suspicious circumstances surrounding the execution of the will, and the registration formalities. The Court found that the execution of the will was not properly proved and that the suspicious circumstances were not dispelled by the plaintiff. The Court also held that the lower appellate Court erred in receiving additional evidence without proper grounds and in relying on the same to grant a decree in favor of the plaintiff. The Court set aside the judgment of the lower appellate Court and restored that of the trial Court, dismissing the suit.
Issues: 1. Whether the plaintiff has proved the genuineness and authenticity of the will executed by Nataraj Chettiar? 2. Whether the execution of the will was properly proved in accordance with law? 3. Whether the suspicious circumstances surrounding the execution of the will were dispelled by the plaintiff? 4. Whether the lower appellate Court erred in receiving additional evidence without proper grounds? 5. Whether the lower appellate Court erred in relying on the additional evidence to grant a decree in favor of the plaintiff?
Ratio Decidendi: 1. The burden of establishing the genuineness and authenticity of a will is on the propounder of the will. 2. The execution of a will must be properly proved, which is a question of law or a mixed question of law and fact. 3. Suspicious circumstances surrounding the execution of a will must be dispelled by the propounder of the will. 4. The lower appellate Court erred in receiving additional evidence without proper grounds. 5. The lower appellate Court erred in relying on the additional evidence to grant a decree in favor of the plaintiff.
Final Decision: The Supreme Court set aside the judgment of the lower appellate Court and restored that of the trial Court, dismissing the suit.
1. Second defendant in O.S.No.966 of 1981, on the file of III Additional District Munsifs Court, Coimbatore is the appellant. Plaintiff herein filed the suit to declare her title to the suit property, for execution of a conveyance, conveying or transferring, as the case may be, the house described in Schedule A in favour of the plaintiff, and for directing payment of the share perquisites and belonging described in Schedule B by first defendant to plaintiff, and for other consequential reliefs.
2. The appellants husband M.V.Nataraj Chettiar died on 30.7.1974. The suit house property described in Schedule A was allotted to Nataraj Chettiar under a Scheme of purchase on instalment basis by first defendant-Society. His membership number was 439. At the time of allotment, the cost of the house was fixed at Rs.4,123.63. The said amount was to be paid in monthly instalments spread over for a period of 35 years. Nataraj Chettiar had no issues and he took a special interest in the plaintiff and was bringing up her as a foster daughter from her infancy. It is the case of the plaintiff that from the 15th day of her birth, she was brought up by late Nataraj Chettiar. Second defendant was also very much fond of the plaintiff. It was Nataraj Chettiar and the second defendant was brought her up and educated her, and when she grow up, she lived with her parents since they were residing nearer to her school, and now she is employed. Thereafter also, she continued her visits to late Nataraj Chettiar and his wife, second defendant. While so, he executed a registered will on 22.4.1974 bequeathing the plaint property to her, reserving a right of enjoyment to the appellant during her lifetime. There is also a specific clause prohibiting the appellant from alienating the property, and in the case of any contravention, the document will be inoperative and ineffectual. According to plaintiff, the testator has stated in the will that in the event of his dying without paying the instalments in full to the first defendant-Society towards the purchase price of the suit house and without taking a sale deed in his name, then the plaintiff should pay the same to the first defendant and obtain a sale deed from the Society. If any dues were payable by the Society to the testator, that was also bequeathed to the plaintiff. It is said that till 1979, the appellant was living very cordially with the plaintiff. But, after the payment was made in full the second defendant was to get the sale deed in her name, and because of that, the relationship became strained. Due to misunderstanding, plaintiff had to send registered notice both to the first defendant and second defendant about her rights over the property and wanted the sale deed to be executed in her favour. Plaintiff further published a notice in local daily about her right over the property. The appellant sent a reply denying the entire story put forward by the plaintiff and said that even if there was such a will, it could have concocted or would have been brought about at the instance of the plaintiff and her relations, by defrauding the deceased. Therefore, plaintiff filed the suit for declaration and other consequential reliefs as stated above.
3. In the written statement filed by the first defendant, it was contended that on the death of her husband, second defendant applied for substitution of her name in the place of her husband, and accordingly her name was substituted and the house was allotted to her. After the transfer, the appellant was paying the dues regularly and she paid the entire instalments and wanted a conveyance in her favour. When she applied for conveyance, plaintiff came forward with a will alleged to have been executed by the deceased. The first defendant-Society further contended that it is an unnecessary party to the suit and, therefore, prayed for dismissal of the suit.
4. In the written statement filed by the second defendant, appellant herein, she denied the will. A
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