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IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. SATHISH KUMAR, J.
T.S. Sridharan - Plaintiff
Versus
Johanna Lobo (Deceased) and Ors. - Defendants
Testamentary Original Suit No. 49 of 2001
Decided On : 06-09-2018
WILL - PROBATE - GENUINENESS - SUSPICIOUS CIRCUMSTANCES - UNDUE INFLUENCE - SECTION 118 OF THE INDIAN SUCCESSION ACT - VALIDITY - EXECUTION OF WILL - TESTATOR'S STATE OF MIND - INTERPRETATION OF WILL PROVISIONS - APPOINTMENT OF EXECUTORS - JOINT AND SEVERAL AUTHORITY - RULE AGAINST PERPETUITY.
Fact of the Case:
Dr. L.C. Lobo executed a Will on 26.10.1994 appointing the plaintiff, a practicing lawyer, and the 7th defendant as executors in respect of the property known as “Foxholes”. The defendants 2 to 6, nephews and nieces of the testator, objected to the suit, alleging that the signature in the Will differs from his usual signature and the genuineness of the Will is disputed. They also alleged that the recitals in the Will contained strange dispositions contrary to any normal intention of a man aged 67 years and the recitals are contrary to the facts. The testator was under the direct influence of Mr. Davis Thomas, the co-executor mentioned in the Will, during the last years of his life. The testator had substantial funds of his own and also had access to huge amounts of unutilised funds, in his capacity as executor of his mother's and his father's estates, of which the testator was an executor and the defendants 2 to 6 were the beneficiaries. Mr. Davis Thomas, with the intention of generating huge investments for M/s. Metro General Credit Pvt. Ltd., had succeeded in influencing the testator to invest large amounts of the above said funds, substantial amount of which 2nd defendant is beneficiary to, into his said company. It is also apparent that the said David Thomas succeeded to have also influenced the testator in the execution of the Will.
Finding of the Court:
The Court found that the Will was not genuine and valid, as it was surrounded by various suspicious circumstances. The circumstances shrouded in the Will and the manner in which the Will came into existence created serious doubt as to whether the testator executed the Will in a sound state of mind. The Court also found that the bequest to the charitable use at the relevant time was squarely hit by the provisions of Section 118 of the Indian Succession Act, which rendered the bequest invalid. Additionally, the Court held that the appointment of executors jointly and severally in the Will created a doubt about its genuineness, as the purpose of appointing executors is for the execution of the last Will of the testator, and if each of the executors acts independently against other executors, the very purpose of the Will would be defeated.
Issues: 1. Whether the last Will and Testament dated 26.10.1994 is valid and genuine? 2. Whether the execution of the Will is surrounded by suspicious circumstances and hence, invalid? 3. Whether the Will been executed by the Testator whilst in a sound and disposing state of mind? 4. To what relief’s are the parties entitled to? 5. Whether the Will is hit by Section 118 of the Indian Succession Act? 6. Is not the Will mentioning two executors Mr. David Thomas and Mr. Sridharan to act jointly and severally in valid? 7. Whether the bequest of a life time interest to the first executor Mr. Davis Thomas and to his wife Geetha is not hit by the Rule against perpetuity?
Ratio Decidendi: The Court held that the Will was not genuine and valid, as it was surrounded by various suspicious circumstances. The circumstances shrouded in the Will and the manner in which the Will came into existence created serious doubt as to whether the testator executed the Will in a sound state of mind. The Court also found that the bequest to the charitable use at the relevant time was squarely hit by the provisions of Section 118 of the Indian Succession Act, which rendered the bequest invalid. Additionally, the Court held that the appointment of executors jointly and severally in the Will created a doubt about its genuineness, as the purpose of appointing executors is for the execution of the last Will of the testator, and if each of the executors acts independently against other executors, the very purpose of the Will would be defeated.
Final Decision: The Testamentary Original Suit No. 49 of 2001 was dismissed with costs.
The Original Petition has been filed for grant of Probate in respect of the Will stated to have executed by Dr.L.C.Lobo on 26.10.1994 appointing the plaintiff, practising lawyer as one of the executors and the 7th defendant as another executor in respect of the property known as “Foxholes” measuring about 9.0800 grounds. 1st defendant is the wife of the testator Dr.L.C.Lobo. Defendants 2 to 6 are the nephews and nieces of the said Testator. In the written statement, defendants 2 to 6 objected the suit, taken a defence to the effect that the signature in the Will, supposedly executed by the deceased differs from what his usual signature used to be and the genuineness of the Will is also disputed. The recitals in the Will contained strange dispositions contrary to any normal intention of a man aged 67 years and the recitals are contrary to the facts. Even though the Will dated 26.10.1994 was executed by the Testator, he was under the direct influence of Mr.Davis Thomas, the co-executor mentioned in the Will and the other executor being the plaintiff.
2. The testator was under the direct influence of the co-executor/beneficiary during the last years of his life. The said Davis Thomas frequently used to visit the testator and his aged wife at their residence under the pretext of attending to their personal needs. The testator had substantial funds of his own and also had access to huge amounts of unutilised funds, in his capacity as executor of his mother's and his father's estates, of which the testator was an executor and the defendants 2 to 6 were the beneficiaries. The said Davis Thomas with the intention of generating huge investments for M/s. Metro General Credit Pvt. Ltd., had succeeded in influencing the testator to invest large amounts of the above said funds, substantial amount of which 2nd defendant is beneficiary to, into his said company. It is also apparent that the said David Thomas succeeded to have also influenced the testator in the execution of the Will.
3. The above things verified by Clause 3 of the Will. Said clause contains a stipulation that after the death of the testator's wife Mr. Davis Thomas shall have the right of residence for his lifetime and that of his wife. During this time, the rental which shall be paid to the Little Sisters of the Poor, shall be Rs.1,000/- per annum. The Will further mentions that on the death of the other executor, i.e., the plaintiff herein, his son Mr. Vikram Raghavan shall be executor and trustee in place of his father. That if Mr. Raghavan is for any reason unable to act as executor and trustee, his function will be exercised by the senior partner of M/s. Pais, Lobo, and Alwares. It is further mentioned that the second executor, the Plaintiff herein, shall be entitled to an honorarium of 5% of the net income of the estate.
4. The provisions are unnatural, which has special benefits and no reasons cited by the testator as to why the said provision has been made. The provisions read along with the fact that the testator was influenced into investing huge sums of money of his own and that of which he had no control into the company M/s. Metro General Credit Pvt. Limited, in which Mr. Davis Thomas is directly involved and interested, makes it further but obvious that there was a deep conspiracy and collusion between interested parties and the Will was executed under undue influence and coercion.
5. The Will was alleged to have been executed in the office of M/s. Metro General Credits Pvt. Ltd., and also allegedly attested by its employees Mr. Terence Shenoy and Ms. C.B. Tamilselvi. The signatures of the alleged witnesses were obtained by the authority Mr. Davis Thomas on blank papers. The Will is not genuine and conveniently does not contain the mandatory attestation clause to evidence that the attesting witnesses had signed the same in the presence of each other and in the presence of the testator after witnessing the testator signing the Will in their presence. It is
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