Corra Vedachalam Che... v. G. Janakiraman

R. Jayasimha Babu, J.

1. This appeal is directed against the judgment of the learned single Judge holding that the Will dated 2.2.1970 of late Subbu Krishna Chetty, who was an advocate practicing in this Court and who died on 16.8.1982, is not his Last Will and Testament and that the probate sought for by the executors could not be granted on the ground that the Will had not been proved to have been executed by the testator; that there had been long unexplained delay in filing the petition for probate and that an adverse inference was required to be drawn by reason of non examination of the sole beneficiary who had delivered the Will to the executors and who had taken an active part in the conduct of the case through her son.

2. The document which was propounded as the Will is a typewritten document on a plain paper. The date of execution is set out in the last paragraph. It has on it the signature of G. Subbukrishna Chetty and the signature of two witnesses vis. Krishnamoorthy.R, below whose name is mentioned advocate and G.B Duraipathy, below whose name is stated advocate with his address at Madras. The date 2.2.1970 is mentioned against their respective signatures. The document also bears an endorsement of registration, made by the Sub Registrar at Sowcarpet, Madras, such registration having been done on 24th April, 1970. The document was registered as Document No: 13 of 1970. Below the rubber stamp “EXECUTION ADMITTED BY” is the signature of G. Subbu Krishna Chetty, s/o. Parthasarathy Chetty, Advocate, 82, Narayana Mudali Street, Madras. His signature is also found above the rubber stamp. Below that is the rubber stamp “IDENTIFIED BY”, below which is found the signature of B.S Krishnasamy Rao, Advocate, High Court, Madras.

3. That document begins with “Sri Ramajayeam” at the top. It sets out that it is the last Will and Testament of G. Subbukrishna Chetty, after which is added by hand, “son of Parthasarathy Chetty” with the initial “gs”, describes him as a Hindu Arya Vysya aged 68 years and residing at No. 82, Narayana Mudali Street, George Town, Madras. The next paragraph refers to a Release Deed on 27.10.1929 executed in favour of his father under which he got House No; 83 on the same street for his share and sets out that he had parted with that house for meeting the claims of his father's creditors in or about 1930 and that his father passed away in 1938 leaving no property. The document then goes on to state that the testator's mother had died intestate in 1966 leaving him as the only heir of the property which consisted of the house in which he lived - 52 Narayana Mudali Street, which she had purchased in 1905 and a property at Tindivanam which she had got under the Will of her brother's wife as also some jewels, vessels and furniture. The bequest is then made of all those properties in favour of his daughter Kanakavalli Amma, wife of v. Subramaniam Chetty, absolutely. She was directed to pay any debts incurred by him as also the debts incurred by his father in his business as and when she finds it convenient if such of the debts had not been discharged by him during his life time. Two executors are then appointed vis. Cerra Vedachalam Chetty and Cheedella Chinnikrishna Chetty, both of whom are residents of Stroothem Muthia Mudali Street, Madras-1. The date of execution is filled in ink as 2nd day of February 1970.

4. The petition for probate was filed by the executors in September 1991. It was stated by them in that petition that the delay in filing the petition for probate was on account of the fact that neither the executors nor the beneficiary were aware that probate was required to be obtained and that only when a portion of the property was sought to be let out, the beneficiary was asked to get the probate of the Will. The grant of probate was opposed by one of the two sons of late Subbu Krishna Chetty viz. Janakiraman. The other son Parthasarathy accepted the Will as genuine and had filed an affidavit accepting the Will and its contents. Janakiraman who objected to the grant of probate has, in the course of his evidence when he was examined as D.W.1, stated that he and his brother inherited the properties in Tiruchirapalli under a Settlement Deed which had been executed by their grand father. According to the plaintiffs the reason why no properties were allotted to the sons was the fact that they had been already given properties in a settlement deed of their grand father under which those properties were to vests in them after the demise of their mother.

5. During the trial one of the two executors examined himself as P.W.1 One Muralidharan, who is said to have been worked as a clerk to one of the attestors and capable of identifying his signature, was examined as P.W.2 One of the trustees who had served with the testator as trustee, of the Cheedella Rangamannar Chetty Charities was examined as P.W.3 Janakiraman was examined as D.W.1 Janakiraman was the only witness for the defendant. Exs.P.1 to P.16 were marked by the plaintiff and Exs.D.1 to D.37 were marked by the defendant.

6. The oral evidence shows that the executors had no personal knowledge of the execution of the Will and that both the attestors whose names are found on the Will were no more. P.W.1, one of the executors, has spoken to the fact that he knew the testator well, he knew his signature as also the signature of one of the attestors. He identified those signatures on the document and stated that the document had been given to him by the daughter of the deceased/testator on the 16 day of the passing away of the testator. He also stated that all the expenses for the conduct of the proceedings before the Court were met by her. P.W.2 stated that he was an advocate's clerk and had worked as such for ten years with one of the attestors, G.B Doraipathy, advocate and that he could identify his signature which he did on the document. He also identified the signature on two legal opinions that had been given by him to the Trust of which P.W.3 and the testator had been trustees. P.W.3, who was one of the trustees, identified the signature of the testator in the minutes books of the meeting of the trust which were produced as exhibits and marked as Exs.P.9 and P. 10. The signatures of the testator in that book are for the period from 1959 to 1982.

7. In the cross examination nothing was elicited to cast any doubt on the correctness of the statement of witness regarding their knowledge, of the signatures of the testator and the attestors and their ability in identifying the same.

8. When this appeal was taken up for hearing in the light of the submission that had been made by the respondent's counsel that the signature of the testator had not been examined by a hand writing expert and that there were apparent discrepencies in the style of writing of the testator on the Will as compared to the other documents in evidence on which his signature was admitted by the respondent, the Will as also the documents which bore the undisputed signature of the testator were directed to be sent to the Government's hand writing expert in the Forensic Laboratory. D.W.1 himself had admitted that the mortgage deed that had been executed by his father, Ex.P.6, contains the signature of his father. After such examination the report has been submitted to this Court wherein it is stated that all the documents that had been sent for examination contain signature made by the same person. At the request of the respondent's counsel the hand writing expert was allowed to be cross examined before the trial Judge. The transcript of that cross examination has also been placed before us. Having perused the same and having heard the counsel, we see no reason at all to doubt the accuracy and correctness of the opinion of the hand writing expert that the signature contained in the Will is that of the same person who had signed the other documents which were admitted by the respondent to have been signed by his father late Subbu Krishna Chetty.

9. Having regard to the evidence of P.W.1, P.W.3, the evidence of the hand writing expert, and having compared the signatures of late Subbu Krishna Chetty contained in the minutes book of Rangamannar Charities-Ex.P.9 and P.10, and in the documents produced by the defendant viz. Ex.D.1 and D.3 which admittedly contains the signature of his father with that found in the Will, we have no doubt that the signature found on the Will is indeed that of late Subbu Krishna Chetty and none other.

10. It is not the case of the respondent that the Will was brought about by undue influence or that the document itself is fraudulent. The stand taken by the defendant was that the document does not contain the signature of his father and, therefore, the document is not genuine.

11. Learned counsel for the respondent, however, submitted that the Will does not disclose that the deposition made thereunder are natural, as even the existence of the sons is not mentioned and no property is allotted to the sons. It is also pointed out that nothing had been provided for the wife under the document. The interests of the wife and the two sons, as admitted by the defendant himself when he was examined as D.W.1, had been fully secured by a settlement deed that had been executed by the father-in-law of Subbu Krishna Chetty, who had settled valuable properties on the wife of Subbu Krishna Chetty giving her the life interest thereunder and vested remainder to the two grand sons namely the sons of the Subbu Krishna Chetty. The fact that there was no mention of them in the Will, does not, on that account, render that document suspect.

12. As regards the attestors of the Will, having regard to the fact that the two attestors were admittedly no longer alive, all that could have been proved and was required to be proved, was that the signatures found on the document is indeed that of the attestors. The law requires that the attestation by at least one attestor be established. That requirement was met by the examination of P.W.2 who was a former clerk of Duraipathy, the lawyer who attested the Will. Duraipathy was also well known to P.W.3 who was one of the trustees of a trust to which Duraipathy had on an occasion given legal advise. The signature of Duraipathy had been identified by P.W.3 as well who knew his signature and who had produced the exhibit which contains the legal opinion that had been given by Duraipathy to the trust. The criticism levelled against P.W.2 that he was not a lawyer's clerk at the time of his examination, that though he was living far away from Madras he had been brought to Court by the son of the beneficiary under the Will and that he had not produced any document to show that he was a registered clerk, do not in any way retract from his credibility. There is not even a suggestion to him in the cross examination that he was not infact the clerk of Duraipathy. The fact that he was an unregistered clerk does not take away the fact that he had worked with Duraipathy and had in course of time became familiar with his signature. The fact that he was known to the son of the beneficiary does not by itself render him such an unreliable witness as to render his evidence, otherwise acceptable, untrustworthy.

13. Under Section 63 of the Indian Succession Act, the Will, in order to be valid, should contain the signature or the mark of the testator and be attested by two or more witnesses who have seen or received acknowledgement from the testator about his having signed the Will. When the attestors are no more it is wholly impractical to expect any evidence regarding the attestors having seen or received the acknowledgement of the signature of the testator. Such evidence will have to be gathered from the circumstances surrounding the execution of the document and the other circumstances shown to have been in existence. The testator here was an advocate who was practicing in this Court. He was thoroughly familiar with all the requirements of law. He knew very well what the requirements of the valid Will are, he had apparently drafted the document himself. He had taken care to have the document attested by two lawyers known to him. He had made the corrections in the Will and entered the date himself and had signed the Will. The signatures of one of the at-testers has been proved by the evidence of his former clerk. Having regard to these facts it is reasonable to infer that the signature of the testator was put on the document in the presence of the attestors and in any event the attestors had received from the testator the acknowledgement of his having signed the Will. The testator even after executing the Will and after an interval of about two months had taken care to have the document registered for which purpose he attended the office of the Sub Registrar. Before the Sub Registrar he was identified by another lawyer colleague who has signed the document as the person who identified him before the Sub Registrar. The signature of the testator at the time of registration has been found to be unquestionably that of the testator. That has also been confirmed by the opinion of the hand writing expert.

14. As regards the disposing state of mind of the testator at the time the Will was executed, it is not the case of the defendant that at the time of the execution the testator was incapable of signing the Will or that he was so unwell as not to able to sign the Will, or to attend the Office of the Sub Registrar for the purpose of registering the Will. The testator was in practice at the time when the Will was executed, and in the absence of any plea to the contrary in that regard, and also having regard to the manner in which the witnesses for the plaintiff were cross examined, and the evidence that has been given by the defendant himself, the testator can be regarded as having sound disposing state of mind and perfectly capable of making the Will as also executing and registering the Will. The defendant in his evidence had stated that, “my father was hale and healthy on the alleged date of the execution of the Will Ex.P.1”

15. The documentary evidence in this case amply establishes the real likelihood of the Will being genuine. First and for most is an affidavit sworn in by none ether than Janakiraman the respondent before us, which has been marked as Ex.P.5 That is an affidavit which was filed by him in this very Court in C.S No: 204 of 1991, a suit which had been filed against him by one Madras Industrial Chemical Agencies. The affidavit is dated 15 March, 1991. In that affidavit in paragraph 3 he has stated thus, I submit that the piece of land including the super structure at No: 30, Narayana Mudali Street, Madras 79, which is itemised as No: 1 in the schedule does not belong to me. Therefore, it cannot be attached and therefore I am not in a position to furnish any security to the suit which I am not liable to pay. That affidavit was filed in answer to an application wherein the attachment of this property had been sought. The defendant Janakiraman had no manner of doubt that property which was bequeathed to his sister did not belong to him and he had said so on oath.

16. The explanation offered by him when confronted with this affidavit was that what is stated in that affidavit is a typographical error. The tenor of the affidavit makes it amply clear that it was not typographical error but was a very categorical statement that he was not the owner of the property, that the property could not be attached, and also that he-was not in a position to offer any security.

17. The other documents which are material and which require consideration are documents marked as Exs. P.2 and 3. These documents are hand written. The fact that these documents were in fact executed by the authors mentioned therein is not disputed. The only dispute sought to be raised by the defendant was that the words “in the presence of executors” were not found in the document at the time of execution. Ex.P.2 is a letter or statement written by the daughter of testator, Kanakavalli Ammal, wherein she has stated that she has nominated her brothers Janakiraman and Parthasarathy to collect the rents from “my house” No:30, Narayana Mudali Street, Madras - 1, to pay the electricity charges and house taxes from the rental collection, and settle the credit and debit accounts in the presence of the executors after she comes over to, Madras.

18. Ex.P.3 is a letter signed jointly by Janakiraman and Parthasarathy. According to them, their sister's letter of 4.10.1982 authorised them to collect the rent and pay the necessary taxes for the house. It is also stated therein that they would settle the credits and debits as soon as she comes to Madras in the presence of executors.

19. Even if one were to ignore the words, “in the presence of executors” in these two documents they clearly say shortly after the demise of the testator that his daughter had authorised her brothers to collect the rents of the house which was described as ‘my house’ and that the brothers had agreed to settle the credits and debits after acting on the authority of the letter and collecting the rents and paying the necessary taxes.

20. Another document of relevance is Ex.P.4 which is an unregistered lease deed dated 29.08.90 wherein Kanakavalli ammal and Janakiraman are together described as, lessors. The recitals in Ex.P.4 sets out that the first lessor Kanakavalli is “the owner of the property” and the second lessor Janakiraman is “in occupation of the property” The lease deed is one which has been signed by the brother and the sister. Counsel for the respondent contends that, that document being unregistered it cannot be looked into at all. While it cannot be treated as a lease deed for the purpose of determining the rights of a lessor and lessee as the period of lease set out in the document is in excess of one year, the recitals in the deed, however, can be looked into as evidence of the conduct of the parties, not in the capacity of the lessor and the lessee, but their recognition interse of the rights of one of the parties as the owner of the property.

21. The other document which is of significance is Ex.D.15 under which the brothers and sister sold the property situated in Tindivanam which is one of the items of the property that is mentioned in the Will. That document is executed by all of them jointly. However, it is significant to note that the recitals in the sale deed are to the effect that the consideration for the sale was adjusted partly towards the pronote loan which had been obtained, by three of them together shortly, after the demise of the testator; towards a pronote loan that has been obtained by Kanakavalli ammal alone; and that the balance of consideration was being paid over to Kanakavalli Ammal. The payment of consideration to Kanakavalli Ammal is consistent with Kanakavalli Ammal being the owner of the property and being entitled to the value thereof even though by reason of the fact that she along with her brothers had executed pronotes shortly after the demise of their father, the purchaser may have desired that the sale deed be executed by all three.

22. Thus, the documentary evidence in the case shows that the properties had been recognized by two brothers as belonging to their sister after the demise of their father. They had agreed to act as her agents for the purpose of collection of rent and agreed to settle the accounts, had joined in executing sale deed of the property at Tindivanam, and had agreed to the consideration being received by the sister for the sale of the property.

23. Besides all these, the conduct of Janakiraman who had denied even the signature of his father on the Will and who had suggested that the Will itself was fraudulent even after having filed an affidavit in this Court stating that the property mentioned in the Will did not belong to him, being sufficiently blameworthy in itself, has been further tainted by his attempting to give away the property on a long lease to a third party without consent of his sister, which led to a suit being filed against him for a declaration that the document does not bind her. That suit was decreed after several observations against the conduct of the brother were made. He was found by the Court to have dealt with the property fraudulently.

24. Learned counsel for the respondents submitted that the plaintiff has a large burden to discharge and that burden has not been discharged as according to him numerous suspicious circumstances existed in this case and those suspicious have not been cleared. This argument is one which comes from the wrong quarter. The conduct of the respondent, which we have already adverted to, renders this argument a mere argument of convenience and not of any substance. It is clear that the brother Janakiraman who apparently is desirous of somehow asserting a right to this property is only trying to raise suspicions with a view to avoid the effect of testamentary disposition made by his father.

25. The testamentary Court is a Court of conscience. It is not a Court of suspicion. It is not the law that, whenever a Will is sought to be proved in the Court, the Court should start with the presumption that the Will is not genuine, that it is fraudulent and that the person who chooses to probate the Will must remove all such suspicions even they are not unreal. The object of the probate proceedings is not to render the testamentary document ineffective but to make it effective and render the terms of that Will operative. In doing so, the Court has to take note of the fact that the testator is not available to the Court to state as to whether the document in fact was his or her last Will or as to whether he or she had signed the same and whether the attestors had signed receiving an acknowledgment from him about the execution of the Will. It is for that reason that the Courts should be cautious while dealing with the evidence placed before them in relation to the executions and attestation, of the Will as also the disposing state of mind of the testator.

26. This need for caution, cannot be exploited by unscrupulous caveators who choose to cull out imaginary suspisions with a view to prevent the legatees under the Will from claiming the benefit thereunder and to render the last Will of the deceased wholly ineffective. In this context, the conduct of the persons who raise the alleged ground for suspision is also to be looked at, to know as to how credible are the grounds for suspisions sought to be raised by such persons. In this case, the suspicion is sought to be raised by a person who is keenly interested in making the Will ineffective and whose conduct is far from one which would inspire confidence in truthfulness of his statements.

27. In this case, we are satisfied, that no unexplained suspicious circumstances exist which would warrant denial of the probate of the Will.

28. The fact that the Will was not produced immediately after the demise of the testator for the purpose of probate, does not by itself render the Will fraudulent or untrue. So also the fact that the Will came from the custody of the daughter, beneficiary does not render the Will untrue when the evidence exists to show that the Will was in fact, the last Will of the testator. The fact that the beneficiary was not examined as a witness in the proceedings does not also by itself have the effect of rendering the Will untrue. The beneficiary in this case is the only daughter of the deceased who does not reside at Madras who lives far away therefrom, is a married lady of advanced years and who had obviously relied upon the counsel as to whether her examination in Court is essential or not. Though it would have been better if she add examined herself, her non examination by itself cannot result in an adverse inference being drawn as to result in the denial of probate for the Will, even when the other circumstances of the case show that the Will is genuine.

29. The learned single Judge was in error in making much of those factors referred to in the opening paragraph of this judgment and in failing to address himself to the central question as to whether the Will was one executed by the testator, who was a lawyer and who was well versed with the law governing Wills and about whose physical and mental capacity at the time of execution of the Will there was no dispute whatsoever. The conduct of the children of the testator including the objector, subsequent to the demise of the testator which clearly show that the parties were aware of the contents of the Will and had acted in terms thereof was also not properly noticed by the trial Judge. The judgment under appeals therefore, cannot be sustained. .

30. We, therefore allow the appeal with costs throughout. Probate shall issue to the executor, on executing a bond for Rs. 50,000.