REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.1565 of 2022
(Arising out of Special Leave Petition (C) No.13840 of 2019)
SWARNALATHA & ORS.
...APPELANT(S)
VERSUS
KALAVATHY & ORS.
...RESPONDENT(S)
JUDGMENT
V. Ramasubramanian
1.
The probate granted by the District Court in respect of two last
Wills and Testaments, one by the father and another by the mother,
having been set aside by the High Court in an appeal under Section
384 of the Indian Succession Act, 1925 (hereinafter referred to as
“the Act”), one set of legatees claiming under the Will have come up
with the above appeal.
2.
We have heard Mr. V. Prabhakar, learned counsel for the
appellants and Mr. Jayanth Muthraj, learned senior counsel
appearing for the respondents.
3.
The couple, Mannar Reddiar and Adhilakshmiammal had two
sons by name V.M. Chandrasekaran and V.M. Sivakumar and a
daughter by name Kalavathy.
4.
The mother Adhilakshmiammal died on 14.08.1995. She left
behind a Will dated 30.01.1995, bequeathing the properties
purchased by her and the properties which she got from her
maternal uncle, in favour of her two sons. The daughter Kalavathy
was not given any share, on the ground that she had already been
provided sufficiently.
5.
The father Mannar Reddiar died on 08.08.2000. He left behind
a Will dated 10.12.1998 bequeathing his properties in favour of his
two sons and his grandchildren. The daughter Kalavathy was not
allotted any property even under this Will, but the Will contained
reasons.
6.
The eldest son V.M. Chandrasekaran died subsequently in
October, 1999, leaving behind him surviving, his wife Swarnalatha
and two sons by name C. Karthikeyan and C. Rishikesan, who are
the appellants herein.
7.
Thereafter, the daughter Kalavathy and the surviving son V.M.
Sivakumar (of the testators) filed a suit for partition in O.S. No.387
of 2005 on the file of the District Munsiff Court, Poonamallee. Upon
coming to know of the same, the appellants herein who are the wife
and sons of the eldest son V.M. Chandrasekaran filed a petition in
probate O.P No.1 of 2005 on the file of the Principal District Judge,
Vellore, under Sections 270, 276 and 289 of the Act for the grant of
probate of the Wills of Mannar Reddiar and Adhilakshmiammal.
The petition was hotly contested by the daughter and other son of
the testators. However, by a judgment dated 7.06.2010, the District
Court granted probate of both the Wills namely the Will dated
30.01.1995 executed by the mother Adhilakshmiammal and the
Will dated 10.12.1998 executed by the father Mannar Reddiar.
8.
Challenging the judgment of the Probate Court, the daughter
and the other son of the testators (respondents 1 and 2 herein) filed
an appeal under Section 384 of the Act on the file of the High Court
of Judicature at Madras. The said appeal was allowed by the High
Court by the impugned judgment on the ground that there are
suspicious circumstances surrounding the execution of both the
Wills. Therefore, aggrieved by the said judgment, the legatees are on
appeal before us.
9.
The claim of the appellants before the Probate Court was that
the parents executed their last Will and Testament, in a sound and
disposing state of mind and that those Wills were executed in the
manner prescribed by law. To establish the execution of the Will of
the mother Adhilakshmiammal, in terms of Section 68 of the Indian
Evidence Act, 1872, the appellants examined Mr. S. Rajasekaran as
PW2. He was one of the attestors of the Will. The other attestor of
the Will was none else than the father Mannar Reddiar. One Mr. B.
Nithyanandham, the scribe of the Will of the Mother was also
examined as PW3.
10.
One Mr. M. Dakshinamurthy, who was one of the attestors of
the Will of the father Mannar Reddiar, was examined as PW4 and
the scribe of the said Will by name Mr. V. Sivaram, was examined
as PW5.
11.
While the Will executed by the mother Adhilakshmiammal was
an unregistered Will, the Will executed by the father Mannar
Reddiar was a registered Will. Both these Wills were marked as
Exhibits P1 and P2 respectively. The death certificates of the
testators were marked as Exhibits P3 and P4 and the copy of the
plaint in the partition suit filed by the respondents was marked as
Exhibit P5.
12.
The daughter Kalavathy (Respondent No.1) examined herself
as RW1 and the other brother Shri V.M. Sivakumar (Respondent
No.2) examined himself as RW2. No documents were marked on
the side of the respondents.
13.
The respondents contested the probate proceedings on the
ground that their parents never executed any Will and that the
elder son V.M. Chandrasekaran played a fraud by taking signatures
of the mother on blank papers and fabricating the same into a Will
and that in any case the testators had no right to dispose of the
properties by way of a Will.
14.
Before the Probate Court, the respondents focused their
attention on the socalled suspicious circumstances surrounding
both the Wills. Though the respondents also raised a contention
that the testators had no right to dispose of those properties by way
of a Will, the Probate Court rejected the same outright on the
ground that the scope of jurisdiction of the Probate Court was not
to decide disputed questions of title to any property.
15.
Insofar as the allegations of suspicious circumstances are
concerned, the Probate Court was not convinced that the
circumstances highlighted by the respondents raised any suspicion.
Therefore, the court of original jurisdiction ordered the grant of
probate.
16.
While reversing the Judgment of the Probate Court, the High
Court recorded the following findings:
(i)
Adhilakshmiammal, the testatrix of the unregistered Will
(Exhibit P1) dated 30.01.1995 was said to be suffering
from ailments, prior to the execution of the Will. The
ailments could be physical or mental and while physical
ailment cannot be a ground to question the veracity of
the Will, mental ailment will certainly be a ground. The
nonfurnishing of the particulars of the ailments suffered
by the testatrix Adhilakshmiammal created a doubt;
(ii)
The failure of the legatees to probate the Will of the
mother Adhilakshmiammal during the life time of the
father Mannar Reddiar is a suspicious circumstance;
(iii)
According to PW1, the Will executed by the father
Mannar Reddiar, marked as Exhibit P2 was written
during night hours of 10.12.1998 but according to the
evidence of PWs 4 and 5 (one of the attestors and the
scribe) the Will was written at 7:00 a.m. and was
registered at 3:00 p.m. on 10.12.1998. The contradiction
between the statement of PW1 and the statements of
PWs 4 and 5 in this regard created suspicion.
(iv)
The ignorance of PW1 about the date and time of
registration of the Will of the father was one more
circumstance that created a suspicion.
(v)
The failure of the father to ensure the presence of the
daughter and the second daughterinlaw during the
execution of both the Wills is one more circumstance
creating a suspicion.
(vi)
The presence of the first appellant herein at the time of
execution of both the Wills, despite the appellant No.1
being a direct beneficiary, is also a circumstance to be
taken notice of.
(vii)
Exhibit P1 (Will) executed by the mother runs to six
pages. The signature of the testatrix is found exactly at
the same location in pages 4 and 6. The superimposition
of pages 4 and 6 shows that the signature of the testatrix
had been taken in Exhibit P1 (Will) at the same place.
(viii) The line space in the first part of Exhibit P1 (Will) is
more than the line space in other parts of the Will.
There is some difference in the style of writing in the first
two pages from the writing in the last two pages of the
Will. The signatures of the attestors of and the scribe are
found within a small space. The signature of Mannar
Reddiar as an attesting witness to Exhibit P1 (Will) is not
found below the word ‘witness’ but found by the side.
(ix)
It is not clear as to how appellant No.1 came into the
possession of the Will. There is no material to show
whether the first appellant’s husband V.M.
Chandrasekaran predeceased the parents. In this
context the delay in seeking probate creates a serious
doubt.
(x)
The total exclusion of the daughter from the bequest and
the failure to mention in the Wills, the dates on which the
daughter was paid certain amounts, are crucial.
17.
But each one of the above circumstances, neither individually
nor collectively creates a suspicion. The signature of the mother
Adhilakshmiammal in Exhibit P1 (Will) is not disputed. It was
executed on 30.01.1995 and her husband namely Mannar Reddiar
was one of the attestors to the Will. In fact the reading of Exhibit P
1 (Will) goes to show that the daughter Kalavathy was given in
marriage to a bank employee way back in the year 1970. According
to Exhibit P1 (Will), the daughter was provided 50 sovereigns of
gold jewellery at the time of the wedding. She was also given various
amounts at different points of time totaling to Rs.75,000/. It was
further claimed in Exhibit P1 (Will) that the mother gave
Rs.25,000/ to the daughter Kalavathy for the purpose of purchase
of two plots of land at Ambattur, in the outskirts of Chennai. The
Will also mentions that the daughter’s daughter was given in
marriage to the second son V.M. Sivakumar. This is the reason why
the second son V.M. Sivakumar joined hands with the daughter
Kalavathy. Exhibit P1 also makes a mention about the sum of
Rs.40,000/ paid towards the discharge of a debt incurred by
Kalavathy’s husband (soninlaw).
18.
Unfortunately, the High Court completely overlooked all the
above aspects and proceeded to invent reasons to justify a
conclusion that seems to have preceded the line of reasoning.
19.
Similarly Exhibit P2 (Will of the father) contains recitals to the
effect that the daughter’s daughter was given in marriage to the
second son V.M. Sivakumar and that Adhilakshmiammal had left
behind a Will dated 30.01.1995.
20.
Once it is found that the father Mannar Reddiar not only
attested the mother’s Will (Exhibit P1) and once it is found that in
his own Will (Exhibit P2), which is a registered Will, the father had
made a mention about the mother’s Will, all the suspicious
circumstances sought to be projected would automatically fall to
the ground.
21.
When it was not even the case of the respondents that the
testators were not in a sound and disposing state of mind, the High
Court found fault with the appellants for not disclosing the nature
of the ailments suffered by them. The exclusion of one of the
natural heirs from the bequest, cannot by itself be a ground to hold
that there are suspicious circumstances. The reasons given in
Exhibit P1 are more than convincing to show that the exclusion of
the daughter has happened in a very natural way. If Exhibit P1
(Will) had been fabricated on blank papers containing the
signatures of the mother, there would have been no occasion for the
father to make a mention in his own Will (Exhibit P2) about the
execution of the Will by the mother.
22.
We do not know how the High Court held the delay on the part
of the appellants in seeking probate of the Wills to be a suspicious
circumstance. Exhibit P1 was executed on 30.01.1995 and the
testatrix died on 14.08.1995. The father was alive till 08.08.2000.
Therefore, there was no necessity for the appellants to seek probate
of the said Will. After the death of Mannar Reddiar on 08.08.2000,
the appellants obviously had no support, due to the fact that V.M.
Chandrasekaran (husband of appellant No.1 and father of appellant
Nos.2 and 3) had predeceased the father Mannar Reddiar. It is
recorded in the impugned Judgment that V.M. Chandrasekaran
died in October1999.
23.
The occasion for the appellants to seek probate of the Will
arose only when the respondents filed the suit for partition in O.S.
No.387 of 2005. Therefore, there was actually no delay on the part
of the appellants in seeking probate.
24.
The High Court made a mountain out of a molehill, by reading
too much into the lack of knowledge on the part of appellant No.1
about the time of registration of Exhibit P2 (Will) and the minor
contradictions between her statement as PW1 and the statements
of PWs 4 and 5. The adverse inference sought to be drawn by the
High Court about the failure of the testator Mannar Reddiar to
ensure the presence of the daughter and the second daughterin
law at the time of execution of Exhibit P2, has no basis in law.
25.
The law relating to suspicious circumstances surrounding the
execution of a Will is already wellsettled and it needs no
reiteration. It is enough if we make a reference to one of the recent
decisions of this Court in Kavita Kanwar vs. Mrs. Pamela Mehta
and Ors.1 where this Court referred to almost all previous decisions
right from H. Venkatachala Iyengar vs. B.N. Thimmajamma2.
But cases in which a suspicion is created are essentially those
where either the signature of the testator is disputed or the mental
capacity of the testator is questioned. This can be seen from the fact
that almost all previous decisions of this Court referred to in
Kavita Kanwar (supra) list out circumstances, which in the
context of the lack of sound and disposing state of mind of the
testator, became suspicious circumstances. In the matter of
appreciating the genuineness of execution of a Will, there is no
place for the Court to see whether the distribution made by the
testator was fair and equitable to all of his children. The Court does
not apply Article 14 to dispositions under a Will.
26.
It is not difficult for an objective mind to understand the
1
AIR 2020 SC 544
2
AIR 1959 SC 443
reasons behind the daughter and the second son of the testators
coming together. Under both the Wills Exhibit P1 and P2, the
properties have been equally distributed between the two sons. The
first son V.M. Chandrasekaran is now no more. Admittedly
Kalavathy’s daughter has been given in marriage to V.M. Sivakumar
(second son of testator). Therefore, if the bequest under the two
Wills go, V.M. Sivakumar’s family may eventually receive 2/3rd
share of the properties, which is more beneficial for V.M. Sivakumar
than getting half share under the Wills. Unfortunately, the High
Court completely overlooked this aspect and started analyzing the
Wills with suspicion. Therefore, the impugned Judgment of the High
Court is incapable of being sustained.
27.
In view of the above the appeal is allowed. The impugned
judgment of the High Court is set aside and the Judgment of the
Principal District Court, Vellore granting probate of both the Wills,
is restored. There will be no order as to costs.
…..…………....................J.
(Hemant Gupta)
.…..………......................J
(V. Ramasubramanian)
MARCH 30, 2022
NEW DELHI.