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Anitha Vijaya Kumar v/s E.M. Asha Richard & Another

    A.S.No. 1 of 2017

    Decided On, 09 November 2022

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE S. SOUNTHAR

    For the Appellant: C.R .Prasanan, Advocate. For the Respondents: R1, Chitra Sampath, Senior Advocate for N. Poovanalingam, R2, K. Magesh, Advocate.



Judgment Text

(Prayer: First Appeal is filed under Section 96 of Civil Procedure Code, praying to set aside the judgment and decree dated 12.04.2016 in O.S.No.541 of 2010 on the file of the learned IV Additional District Judge, Coimbatore, in so far as the same is against the appellant and allow the above First Appeal.)

The 2nd defendant is the appellant. The 1st respondent filed a suit for declaration of title and recovery of possession in respect of the suit property. She also prayed for a declaration that the Will executed by Sarojini Williams in favour of Vijayakumar, husband of the appellant herein was null and void. She also prayed for a further declaration that the Settlement Deed dated 04.12.2007 executed by the deceased 1st defendant Vijayakumar in favour of the appellant herein in respect of the suit property was null and void.

2. The Trial Court decreed the suit in part granting declaration of title and possession in respect of the suit property in favour of the 1st respondent. As far as the 2nd prayer in the suit, seeking declaration that the Will executed by Sarojini Willams in favour of 1st defendant was null and void is concerned, the Court below did not go into that question on the ground that the original Will allegedly executed in favour of 1st defendant/Vijayakumar was not produced and consequently, suit was dismissed in respect of the 2nd prayer. As far as the 3rd prayer seeking declaration that the Settlement Deed dated 04.12.2007 executed by 1st defendant viz., Vijayakumar in favour of the appellant herein in respect of the suit property was null and void is concerned, the Court below had granted a qualified declaration that the said document was null and void in so far the suit property bearing Door No.41 and New Door No.14 is concerned. Aggrieved by the said judgment and decree, the 2nd defendant in the suit has come up by way of this first appeal.

Plaint Averments:

3. According to the 1st respondent/plaintiff, the suit house property was originally belongs to one Lilly Chelladurai who purchased it on 07.02.1965. During her lifetime, she executed a Registered Will dated 17.10.1980 bequeathing the suit property in favour of her daughter Sarojini Williams. After death of said Lilly Chelladurai, Sarojini Williams became absolute owner of the suit property and mutation of revenue records had taken place in her favour. The deceased 1st defendant/husband of the appellant herein was the only son of Sarojini Williams. From the childhood onward he has been very adamant and disobedient and led a wayward life. The mother and power agent of the 1st respondent viz., D.Pamela Moses is the daughter of Sarojini Williams-s elder sister Leela Damat. D.Pamela Moses has been very affectionate with her younger maternal aunt Sarojini Williams from her childhood onwards. It was also alleged that son of Sarojini Williams and late deceased 1st defendant/Vijayakumar had become drug addict and he used to quarrel with his parents for the purpose of getting money. It was also alleged that Vijayakumar used to assault his parents and police complaints were given against him and finally in Crime No.1583 of 1995 and finally he was convicted and sent to jail. It was also alleged that the deceased 1st defendant and appellant herein tortured Sarojini Williams and the only person who consoled her was the 1st respondent-s mother D.Pamela Moses. The 1st respondent further averred in the plaint that during her lifetime, Sarojini Williams executed a Unregistered Will dated 20.07.2004 marked as Ex.A25 in favour of D.Pamela Moses bequeathing the suit property to her. As the appellant and her husband namely deceased 1st defendant threatened Sarojini Williams to cancel the Will, she executed another Registered Will dated 18.10.2005 in favour of the 1st respondent-s mother D.Pamela Moses under Ex.A26. She died on 28.04.2007. It was also averred in the plaint that the appellant and her husband deceased 1st defendant neglected Sarojini Williams during the evening of her life by refusing food, treatment etc., and it was mother of 1st respondent D.Pamela Moses, who had taken care of Sarojini Williams by engaging a services of home nurse. Subsequent to the death of Sarojini Williams, the mother of the 1st respondent viz., D.Pamela Moses executed a Registered Settlement dated 04.09.2007 in favour of the 1st respondent/plaintiff under Ex.A11. Thus, the plaintiff has become owner of the suit property.

4. After the 1st respondent/plaintiff had become owner of the suit property, as she was in Australia, in order to look after the suit property, she had executed a Registered Power Deed in favour of her mother D.Pamela Moses. The deceased 1st defendant Vijayakumar and appellant herein made attempt to sell the suit property by creating false documents and therefore, the 1st respondent was constrained to issue a public notice in Tamil Daily Dinamalar and also a legal notice through her Advocate. On these pleadings, the 1st respondent/plaintiff sought for declaration of title and recovery of possession apart from the other relief as mentioned above.

The averments found in the Written Statement:

5. According to the appellant, the suit property originally belongs to Sarojini Williams, who got it from her mother viz., Lilly Chelladurai. The deceased 1st defendant Vijayakumar was the only son of Sarojini Williams and the appellant was married to said Villayakumar. The appellant and deceased 1st defendant Vijayakumar and his parents were all living together and appellant and deceased 1st defendant Vijayakumar had taken care of Sarojini Williams till her death. The said Sarojini Williams was very affectionate towards her only son deceased Vijayakumar. It was specifically mentioned in the plaint averment that D.Pamela Moses was very affectionate towards her younger maternal aunt Sarojini Williams was specifically denied in the written statement filed by the appellant and deceased 1st defendant.

6. It was also alleged that Sarojini Williams was old and sick and using the close relationship, the 1st respondent and her mother without disclosing the nature and content of documents created a documents styled as Will during 2005. It was also alleged that Sarojini Williams never intended to confer any benefit to D.Pamela Moses and she never executed any Will. It was also alleged that the story of adoption pleaded in the plaint as if Sarojini Williams adopted D.Pamela Moses was false and unknown to Christian Law.

7. It was further contended that as per the latest Will executed by the Sarojini Williams, the appellant and her husband deceased 1st defendant were legatee and as per the Settlement Deed executed by the deceased 1st defendant Vijayakumar on 04.12.2007, the appellant has become absolute owner of the suit property. On these pleadings, the appellant and deceased Vijayakumar sought for dismissal of the suit.

8. The Trial Court on consideration of oral and documentary evidences came to the conclusion that Registered Will executed by Sarojini Williams in favour of the 1st respondent/plaintiff-s mother D.Pamela Moses was true and valid. Based on the subsequent Settlement Deed executed by said D.Pamela Moses in favour of her daughter 1st respondent under Ex.A11, the title of 1st respondent was upheld and the appellant was directed to hand over the possession of the suit property to the 1st respondent as prayed for. The Settlement Deed executed by deceased Vijayakumar in favour of appellant was declared as null and void in so far as suit property is concerned.

9. Aggrieved by the said judgment and decree, the appellant/2nd defendant has come up with this first appeal.

10. The learned counsel for the appellant submitted that the 1st respondent/plaintiff cannot maintain a suit for declaration of her title and possession without seeking declaration that Will in favour of her mother D.Pamela Moses was valid. The learned counsel further submitted that adoption pleaded in the plaint as if D.Pamela Moses was adopted by Sarojini Williams was unknown to Christian Law. The learned counsel for the appellant attacked the Registered Will executed by Sarojini Williams in favour of D.Pamela Moses, which was marked as Ex.A26 on the ground that the attestor to said Will namely PW.2 did not identify his signature in Ex.A26. He also pointed out that the Will is surrounded by following suspicious circumstances:-

(i) Existence of two Wills allegedly executed by Sarojini Williams in favour of D.Pamela Moses.

(ii) Absence of reference to adoption in the 2nd Will when it was specifically mentioned in the 1st Will.

(iii) Disinheritance of only son of testatrix without any reason.

(iv) Existence of clause in the 2nd Will which mentioned testatrix had not executed any other previous Will.

11. The learned counsel further submitted that the 1st respondent/plaintiff side witness admitted that testatrix stayed along with her son Vijayakumar and appellant and the said admission coupled with documentary evidence namely Ex.B10/Power Deed executed by the Sarojini Williams and 1st defendant in favour of third party would falsify the plea of strained relationship between the Sarojini Williams and Vijayakumar raised by the 1st respondent in her plaint.

12. The learned counsel for the appellant relied on the following judgments for the proposition mentioned against it.

(i) (1997) 3 LW 673 (Govindan Chettiar (Died) vs. Akilandam alias Seethalakshmi) - attestor to the Will must identify the signature of the testator in the Will.

(ii) 2012 (1) LW 636 and 2021 (11) SCC 209 (Perumal vs. Alagammal @ Pappathi) - disinheritance of natural heir without sufficient cause is a suspicious circumstances.

(iii) AIR 2005 Kerala 196 (Biju Ramesh vs. J.P.Vijayakumar) - concept of adoption is unknown to Christian Law.

13. Per contra, the learned Senior Counsel for the 1st respondent submitted that the Will relied on by the 1st respondent/plaintiff was admitted by the appellant in the written statement by pleading cancellation of the said Will by subsequent Will allegedly executed by Sarojini Williams. It was further argued by the learned Senior Counsel that the appellant in her written statement specifically pleaded that Will was obtained by 1st respondent/plaintiff by employing undue influence and hence, the burden is on the part of the appellant to prove employment of undue influence. But the appellant has not discharged the said burden. The learned Senior Counsel for the 1st respondent further submitted that the circumstances which compelled the testatrix to execute a Will in favour of her sister-s daughter viz., D.Pamela Moses was spoken to by D.Pamela Moses when she was examined as PW.1. The said circumstances, deposed by her in her chief examination was not controverted by any specific cross examination by the appellant. The learned Senior Counsel had taken this Court to the chief examination of the appellant as DW.1 wherein she admitted that D.Pamela Moses used to visit the Sarojini Williams often and the 1st respondent would also accompany her. The learned Senior Counsel also submitted that the testatrix died only after two years from the date of execution of Will/Ex.A26. It was also submitted that the Ex.B10/Power Deed, executed by Sarojini Williams and Vijayakumar in favour of third party would prove that the 1st defendant got 19 acres of family properties apart from a house bearing Door No.42 and consequently, sufficient properties were available in the hands of 1st defendant and only one house property was given to 1st respondent due to love and affection.

14. The learned senior counsel further submitted that father of the 1st defendant himself had given criminal complaint against him and the same admitted by PW.3. Therefore, the strained relationship pleaded by the 1st respondent in her plaint was proved by own admission of appellant side witness. The learned Senior Counsel relied on the following decisions in support of her contentions:-

(i) (1995) 4 SCC 459 (Rabindra Nath Mukherjee vs. Panchanan Banerjee (Dead) - disinheritance of natural heir is not a suspicious circumstances surrounding the Will as the whole idea behind the execution of Will is to interfere with normal line of succession.

(ii) 2005 8 SCC 67 (Pentakota Satyanarayana vs Pentakota Seetharatnam) –when the propounder of Will discharges his initial onus of proving due execution of Will, the onus would shift to the person, who opposes the Will on the ground of undue influence.

15. Heard the rival contentions of the learned counsel for the appellant and the learned Senior Counsel for the 1st respondent.

16. On the basis of the pleadings, the evidence available on record and contentions of the learned counsel, the following points are arising for consideration in this first appeal.

(i) Whether the Ex.A26/Will allegedly executed by Sarojini Williams in favour of the 1st respondent-s mother D.Pamela Moses is valid and genuine.

(ii) Whether the judgment and decree passed by the Trial Court is liable to be interfered with.

Point No.1: 17. The learned counsel for the appellant mainly attacked the Will executed by Sarojini Williams marked as Ex.A26 on the ground that the Signature of the testatrix was not identified by the attesting witness/PW.2 and also various suspicious circumstances mentioned above. The Ex.A26/Will was originally sought to be marked by beneficiary of the Will viz., PW.1. However, the learned counsel for the appellant opposed the same as the Will could not be marked through the beneficiary and thereafter, the attestor to Ex.A26 was examined as PW.2 and the Will was marked through PW.2. The attestor in his Chief Examination by proof affidavit speaks about execution of first Will by Sarojini Williams on 20.07.2004 and the second Registered Will by Sarojini Williams on 18.10.2005. He exhaustively speaks about the circumstances under which the Will was executed, signing of the Will by testatrix, attestation by himself and other attestors, handing over of the 1st Will to the beneficiary viz., D.Pamela Moses by the testatrix, reservation expressed by the beneficiary about the need for execution of the Will, explanation given by the testatrix for giving one house to the beneficiary and the other house to the deceased 1st defendant Vijayakumar, the object behind execution of the Will viz., avoidance of any misunderstanding between the beneficiary and Vijayakumar after death of testatrix, registration of the second Will before the Sub Registrar office, acknowledgment of the Will by testatrix before the Sub Registrar, identification and attestation before the Sub Registrar etc., in Paragraph 9 of the proof affidavit, it was specifically mentioned that two Wills executed by Sarojini Williams in the name of D.Pamela Moses dated 20.07.2004 and 18.10.2005 were tendered along with the affidavit. In the schedule to the affidavit also both the Will were properly described.

18. The reading of the proof affidavit of PW.2 would make it clear that both the Wills were produced and marked during Chief Examination of PW.2 and his evidence is sufficient to hold that the signature of the testatrix was identified and execution was proved by the attestor viz., PW.2. The close scrutiny of cross examination of PW.2 would make it clear that a suggestion was put to PW.2 that in 2004 Will Sarojini Williams described D.Pamela Moses as her foster daughter but in 2005 Will there was no such description and the same was accepted by him.

19. It was also suggested to PW.2 that the testatrix had not given any reasons for not giving the suit property to her son deceased 1st defendant and the same was also accepted by PW.2. A further suggestion was put regarding non-mentioning of 2004 Will in 2005 Will and the same was also accepted by PW.2.

20. The learned counsel for the appellant further cross examined PW.2 by putting a suggestion that Sarojini Williams did not affix her signature in the Will in the front of PW.2 and he never attested the Will and the said suggestions were denied by him. Therefore, it is very clear that these two Wills produced through PW.2 was very well identified by him and he asserted that testatrix singed the Will and he attested the Will and he had seen the attestation by other testator. Therefore, by no stretch of imagination, we can come to a conclusion that the signature of testatrix in Will had not been identified by the attesting witness. The decision relied by the learned counsel for the appellant in this regard reported in (Govindan Chettiar (Died) vs. Akilandam alias Seethalakshmi), would not give a helping hand to the appellant. In the said case, Will was marked through the beneficiary and subsequently, when the attestor was examined, no attempt was made by the counsel who appeared for the beneficiary to show the Will, which was already in the custody of the Court to the attesting witness, when he entered the box. Therefore, in the said decision, this Court had taken a view that Will and Testator signature had not been identified by the attesting witness. But in the case on hand, Will was produced and marked through the attestor. As I discussed earlier in the Chief Examination and Cross Examination, the attestor speaks volumes about the execution of the Will, mental capacity of the testatrix, signing of the Will by testatrix and attestation by himself and the co-attestor. Therefore, I hold in the present case the attestor to the Will properly identified and proved the Will in the manner known to law.

21. The learned counsel for the appellant pointed out various suspicious circumstances surrounding the Will. It is settled law that the propounder of the Will not only bound to prove the execution of the Will and he has to dispel the suspicious circumstances surrounding the Will in order to succeed. The 1st suspicious circumstances pointed out by the learned counsel for the appellant was existence of two Wills. Both PW.1 and PW.2 talks about need for execution of two Wills. Initially, Testatrix executed an Unregistered Will bequeathing the suit property to PW.1 under Ex.A25 dated 20.07.2004. When the said Unregistered Will was handed over to the beneficiary, she was reluctant to accept it and she questioned about the need for execution of the Will.

22. From the evidence of PW.1 and PW.2, it appears that the testatrix herself convinced beneficiary that in order to avoid controversy or misunderstanding with her son Vijayakumar, after her death, there was a need for Will. Subsequently, as per the evidence of PW.2/attestor, testatrix wanted to register the Will already executed by her. But on the advice of scribe of the Will, a new Will was prepared and the same was registered. The Registered Will was marked as Ex.A26. Therefore, the circumstances under which the 2nd Will was executed was very well explained by the evidence of PW.1 and PW.2.

23. The next suspicious circumstances pointed out by the learned counsel for the appellant is disinheritance of only son viz., the 1st defendant by testatrix. A mere disinheritance of natural heir by itself would not create any suspicious circumstances, the reason would be very purpose of executing a Will is to thinker with normal mode of intestate succession by operation law. If the testatrix desires of giving property to her natural heirs in the same proposition as contemplated by the Succession Laws, absolutely there is no need to execute the Will. Only in cases where the testatrix wants to deviate from normal succession by operation of Succession Laws, she may have to execute a Will. It would be useful to refer to the judgment of the Apex Court reported in (1995) 4 SCC 459 (Rabindra Nath Mukherjee vs. Panchanan Banerjee (Dead) in this regard. The relevant observations of the Apex Court is as follows:-

“3. A perusal of the two impugned judgments shows that the following were regarded as suspicious circumstances:

(1) Deprivation of the natural heirs by the testatrix.

(2) Identification of the testatrix before the Sub-registrar by an Advocate of Calcutta who had acted as a lawyer of one of the executors in some cases.

(3) The witnesses to the documents were interest in the appellants.

(4) Active part played by one Subodh, a close relation of Rabindra, one of the executors, in getting execution of the will. He has been described as ubiquitous.

4. As to the first circumstance, we would observe that this should not raise any suspicion, because the whole idea behind execution of will is to interfere with the normal line of succession. (emphasis supplied) So natural heirs would be debarred in every case of will; of course, it may be that in some cases they are fully debarred and in others only partially. As in the present case, the two executors are sons of a half-blood brother of Saroj Bala, whereas the objectors descendants of a full blood sister, the disinheritance of latter could not have been taken as a suspicious circumstance, when some of her descendants are even beneficiaries under the will.”

24. In the case on hand, the natural heir viz., son of the testatrix was not completely deprived of any property. Even as per the evidence of PW.1, PW.2 coupled with Ex.B10 would prove that the deceased 1st defendant, son of the testatrix was given a house property bearing Door No.42 and he is also entitled to nearly 19.93 acres of agricultural land in the native Village. The Power Deed jointly executed by testatrix along with the 1st defendant under Ex.B10 in respect of those properties is a clinching documentary evidence to prove the availability of vast extent of land and dwelling house in the hands of son of the testatrix. Therefore, giving one of the house to sister-s daughter by disinheriting son in respect of that house cannot be treated as a suspicious circumstances in the facts and circumstances of this case.

25. The 3rd suspicious circumstance pointed by the learned counsel is absence of reference to adoption in the 2nd Will whereas it was referred to in the 1st Will. The close scrutiny of the 1st Will executed by Sarojini Williams would suggest that as she had no female heir, she treated her sister-s daughter viz., D.Pamela Moses as her foster daughter. Though it was mentioned further that D.Pamela Moses was adopted by her as per Christian Law, even according to the learned counsel for the appellant, the concept of adoption is unknown to Christian Personal Law and hence, the reference to adoption mentioned in the earlier Will cannot be given much weightage. Further, in more than one place testatrix mentioned D.Pamela Moses as a foster daughter but not as an adopted daughter, therefore, non-mentioning of adoption in the 2nd Will is not a material suspicious circumstances affecting the validity of the 2nd Will.

26. The 4th suspicious circumstance pointed out by the learned counsel for the appellant is the existence of a clause in the Will that she had not executed any previous Will. It is well settled law that in case of availability of more than Will the last Will will prevail over the earlier Will. In the case on hand, Ex.A26 is the last Will executed by the testatrix. The subsequent Will pleaded by the appellant was not at all produced. Merely because in the last Will there is a clause that testatrix had not executed any previous Will, one cannot jump to a conclusion that the bequeath made under the Will is vitiated. Admittedly, the earlier Will was not registered and only the subsequent Will was registered before the Sub Registrar. Probably, in order to mention that the testatrix had not executed any previous Registered Will, the scribe might have used a loose expression, but I do not think it would affect the bequest made under Will. Therefore, various suspicious circumstances pointed out by the learned counsel for the appellant would not affect the bequest made under the Will. Hence, I have no hesitation to hold that the Will is free from any suspicious circumstances.

27. The learned counsel for the appellant further submitted that the 1st respondent in her plaint pleading averred that the relationship between the testatrix and her son viz., the deceased 1st defendant got strained. But however, PW.2 admitted testatrix stayed with her son 1st defendant and daughter-in-law appellant and hence, the said averment of the 1st respondent got falsified. It is pertinent to mention that the 1st respondent made a specific plea that the son of the testatrix got addicted drugs, became violent and used to assault testatrix and her husband. The said plea of the 1st respondent was fortified by documentary evidence viz., Ex.A20/Police complaint made by the husband of testatrix against the dec

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eased 1st defendant and admissions of appellant who was examined as DW.1. She, during her cross examination, admitted that her husband deceased 1st defendant was addicted to drug for sometime and father-in-law himself gave a complaint against him in Crime No.1583 of 1995 and he was convicted and sent to jail. The relevant portion of the appellant-s admission in the Cross Examination in vernacular is as follows:- “TAMIL” 28. The close scrutiny of evidence of appellant as DW.1 would make it clear that her husband viz., deceased 1st defendant was addicted to drug for sometime and his father viz., husband of the testatrix made a complaint against him and he got convicted and sent to jail. Therefore, the relationship between testatrix and her son appear to be some what strained probably the said unfortunate situation might have compelled testatrix to give one house to the 1st respondent, her sister-s daughter. 29. The learned counsel for the appellant further submitted that execution of the Power Deed by testatrix and 1st defendant in favour of a third party under Ex.B10 would show there was no enmity between them. As I discussed earlier Ex.B10 proves vast extent of land and another dwelling house at the disposal of son of the testatrix, she along with her son executed a Power Deed to a third party for disposal of the said properties. 30. In the light of the admission made by appellant as DW.1, it can be safely inferred that the relationship between testatrix and her son got sored to some extent and hence, she had chosen to give one house property to her sister-s daughter leaving the other land properties and another house to her son. Therefore, there is nothing unnatural in execution of Will in favour of the 1st respondent. 31. In the light of the discussions above, I hold that the Ex.A26/Will is proved and genuine. Point No.2: 32. In view of my findings in Point No.1, the 1st respondent/plaintiff is entitled to declaration of title and recovery of possession. When it is held that Ex.26 is valid and the 1st respondent is the absolute owner of the suit property, execution of Settlement Deed dated 04.12.2007 in favour of the appellant/2nd defendant by the deceased 1st defendant is void to the extent of suit property and the Trial Court rightly granted a declaration to that effect in so far as the suit property is concerned. Therefore, I do not find any reason to interfere with the judgement and decree passed by the Court below. In nutshell: The first appeal is dismissed by confirming the judgment and decree dated 12.04.2016 passed in O.S.No.541 of 2010 on the file of the learned IV Additional District Judge, Coimbatore. There shall be no order as to costs.
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