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2006 Supreme(All) 1117
[2006(4) ADJ 333 (All)]
ALLAHABAD HIGH COURT
BEFORE : SUNIL AMBWANI, J.
A.S.K. SIRCAR, ETC. ....Plaintiff
Versus
Mrs. JOYCE CYNTHIA PRABHAKAR AND OTHERS, ETC. .....Defendants
(Testamentary Suit Nos. 13 and 5 of 1998, decided on 18th April, 2006)
Counsel :
Navin Sinha, Sr. Adv., for the Plaintiff; Dhruva Narain for the Defendants.
Headnote:Will—Execution of—Genuineness—Proof—Application for grant of “probate” of Will—Allegations of fraud must be precise and provide specific details of allegation—Defendant should not raise some suspicions and plead doubts—Will proved by attesting witnesses, who had seen, testatrix sign Will, after it was read out and explained to her by Sub-Registrar and then other witnesses signed it before testatrix—Document was registered on same day—Defence witnesses have nowhere denied that deceased did not go to Registrar’s office, and had not put her signatures on Will—Witness had not challenged her signatures, nor any Expert witness was called to deny it—In fact, execution of Will has not been denied at all—Further, no evidence, nor even a suggestion that any undue influence, or coercion, was exercised upon discretion of testatrix, in making bequest—No evidence at all that she was put under pressure or that propounder had exercised any influence on her, or had misled her in making bequest—Defendants have not placed on Will any such unnatural, improbable, or unfair circumstances, which may impeach bequeath—Therefore, Will was held to be validly executed by testatrix in her sound disposing mind, conscious and fully aware of its implications before Sub-Registrar—Therefore, suit liable to be decreed—And plaintiff in suit entitled to probate of Will. [Succession Act, 1925—Sections 59 and 63—Evidence Act, 1872—Sections 67 and 68]. [Paras 30, 33, 37, 38 to 42]
Honble Sunil Ambwani, J.—Mrs. Edna Diamond Peters the deceased served as a teacher in St. Mary’s Training College, at Allahabad. She died on 5-1-1998 at Allahabad at the age of 78 years. In Testamentary Suit No. 13 of 1998, Mr. Arnold Sunil Kumar Sircar (A.S.K. Sircar), her sister’s younger son has applied for grant of ‘probate’ of her will dated 5-9-1994 by which she made the bequest for benefit of Mrs. Asha Sircar; Mr. Pankaj Sircar wife and son of Mr. A.S.K. Sircar of all her estate, certain sums of money to Missionaries of Charity; Sitaram; Shakuntala; Kamla and Ram Autar (servants) and 20% of the residual amount each to Mr. Rajiv Sircar; Mrs. Anita simon; Mrs. Lalitha Francis; Mrs. Joyce Prabhaker and All Saints Cathedral. The suit is contested by Mrs. Joyce Cynthia Prabhakar the step sister and Mrs. Anita simon, the niece of the deceased. The caveator-defendants have denied the execution of the will by the deceased. In paragraph Nos. 4, and thereafter 5 (c), (d), (f), (k) of their objections, the defendants have pleaded that on 5-9-1994 the deceased was not in a sound physical condition or in sound state of mind, nor duly executed the will. The death of her son Ernest, her only child, totally shattered her mental and corporeal faculties, which were already impaired considerably due to her old age and ill health. She was suffering from diabetes, anqina and blood pressure for decades and was operated to remove cataract from both her eyes. She was not in a sound and disposing state of mind. Mr. A.S.K. Sircar, the plaintiff-propounder was serving in the Bank. His wife Mrs. Asha Sircar was teaching in Boys High School and their two children Pankaj studying in Christian Medical College in Ludhiana, Punjab, and Ritesh, a student of B.Com. were too young to receive her affection and love and to exclude all other relatives. In sub para (f) of Para-5, the will is alleged to be forged.
2. In Testamentary Suit No. 5 of 1998 Mrs. Joyce Cynthia Prabhakar and Mrs. Anita Simon have prayed for ‘Letters of Administration’ of the estate of Mrs. Edna Diamond Peters (the deceased) alleging that she died intestate. The papers purporting to be the will of the deceased sent by Mr. A.S.K. Sircar by registered post to Mrs. Lalitha Francis, the daughter of the Mrs. Joyce Cynthia Prabhakar at Bangalore alleged to be executed by the deceased on 5-9-1994 and registered at the office of Sub Registrar, Chail at Allahabad, appears to be a fishy document/shrouded in circumstances which are suspicious in the extreme besides being an unnatural will excluding all other heirs of the deceased. The signatures purporting to be of that of the deceased do not appear to be genuine and that for two months the alleged executor did not file the petition for probate. It is stated in Para 4 of the plaint that apart from the plaintiff, the law applicable to Indian Christians namely Indian Succession Act No. 39 of 1925, the deceased had left behind Mrs. Aruna Seetal; Shunil Sircar (A.S.K. Sircar); Mr. Anita Simon and Ronald Sircar. The petition is contested by Shri A.S.K. Sircar, who has filed objections/counter affidavit stating that the deceased was in a sound and disposing state of mind, and had executed the will dated 5-9-1994, before her death. The Sub Registrar registered it on the same date. He is the executor named in the will and has filed testamentary case for grant of probate.
3. The defendants in Testamentary Suit No. 13 of 1998 initially filed applications to dismiss the suit as it was not in accordance with the provisions of the Indian Succession Act and the Rules of the Court, and also filed interrogatories with regard to proof of the will and the details of the properties left by the deceased. They also filed an application for injunction. The prayer for injunction (A-18) was allowed on 13-7-1999. An interim injunction was granted restraining the plaintiffs from alienating any movable and immovable properties of the deceased till further orders of t
