2023 (4) TMI 968 - HC - Indian Laws

Grant of Letters of Administration - Owner of subject property - factum of execution of the Will not in the knowledge of respondent - specific defence set up by the respondent was that the Will was false fabricated and created by obtaining signatures of the testatrix in blank papers under threat and coercion exercised by the father of the appellants. Whether the Will dated 06.03.2005 has been duly proved in the manner known to law satisfying the requirements of Sec.63(c) of the Indian Succession Act, 1925 r/w Sec.68 of Indian Evidence Act 1872? - HELD THAT - It is clear that the Will was indeed executed by the testatrix in the presence of two attesting witnesses viz. the second appellant and the respondent on 06.03.2005. The said Will came to be registered on 19.04.2005 before the Joint Sub Registrar Chennai South. The signature of the testatrix before the Joint Sub Registrar at the time of registration is admitted by her daughter the contesting party viz. the respondent herein. If really the defence set up by the respondent that the father of the appellants obtained signatures of the respondent s mother in blank papers and using the same fabricated Ex.P1- Will then the registration of such a Will with the active presence and participation of the testatrix before the Sub Registrar concerned that too on a much later date would be most improbable if not impossible - The respondent is not a novice. She is a Post graduate and also held very high position in BSNL a public sector undertaking. This Court is unable to believe her version that she and her mother signed blank papers and that such blank papers were misused to bring about Ex.P1-Will. In reference to the relevance of registration of Ex.P1-Will on a subsequent date this Court is unable to buy the version of the respondent that signatures available in blank papers were used to fabricate Ex.P1-Will. Whether Ex.P1-Will has been duly executed attested and proved as required under law? - HELD THAT - The probate Court is not a Court of suspicion but more a Court of conscience. The Court should endeavour to put itself in the arm chair of the testator and find out whether in the given circumstances the testator would have made such bequests or not - Coming back to the facts of the present case it is an admitted case that the appellants and their father have alone been residing in the subject property and the testatrix and her daughter were living at a different place. Even the reason assigned by the testatrix in Ex.P1-Will as to why she was giving the property to her brother Ganesan are reasoned and well founded. This also corroborates with the case pleaded by the appellants before the learned Single Judge. The evidence of the attesting witnesses cannot be expected to be given with arithmetical precision. The fact that evidence is being given before the Court after several years after the execution of the Will should also have to be remembered by the Court while assessing the evidence adduced by the parties. This Court has already found that there is more than sufficient evidence available on record to establish the fact that Ex.P1-Will was indeed executed by the testatrix in the presence of the second appellant and the respondent herself - The learned Single Judge has proceeded mainly on the footing that D.W.1 had totally denied her signature in Ex.P1-Will which this Court has already found to be not the correct position after reassessing the entire evidence on record. This Court therefore finds and holds that Ex.P1- Will has been duly executed and attested and the proof required to be adduced U/s. 63(c) of the Indian Succession Act 1925 r/w. Sec.68 of the Indian Evidence Act, 1872 has been satisfactorily complied with. Point 1 is answered accordingly. Whether the appellants can claim right to the property taking shelter under a benami transaction and whether the Will is hit by the provisions of Benami Transactions Prohibition Act 1988? - HELD THAT - The entire money for purchase of the property came only from the appellants father Mr.Ganesan which factum also was admitted to by the respondent in cross examination. Possession of the property has also been only with the appellants and before them with their father. The testatrix never questioned the assertion of right and title over the subject property by her brother during her life time. Only after her life time the respondent has taken all kinds of pleas that her mother permitted her uncle to stay on a nominal rent as it was safer to give it to a known person rather than an unknown tenant and thereby property would be secured. The respondent admitted that no steps were ever taken by her even after her mother s life time questioning the right and possession of the appellants. All these factors would clinchingly establish that the recitals in Ex.P1-Will are only true and genuine. Therefore there is absolutely no reason for this Court to hold that Ex.P1-Will is hit by the provisions of the Benami Transactions (Prohibition) Act 1988. The conduct of the respondent in this regard also assumes relevance because there has been no challenge to either the claim of title to the subject property by her uncle Ganesan or for possession of the subject property being with her uncle and the appellants for several years. If really the defence set up by the respondent was probable especially given her educational background the respondent would have never remained a silent spectator throughout allowing her uncle to enjoy the property and even after his demise the appellants to continue to enjoy the same without taking any legal steps to recover possession or challenge the title to the property. Whether there are any suspicious circumstances surrounding the execution of the Will dated 06.03.2005 in order for the Court to come to a conclusion that the Will is not free and genuine? - HELD THAT - This Court would like to state that there is no straight jacket formula to ascertain or assess suspicious circumstances. All or any suspicion cannot be treated as a suspicious circumstances thereby calling upon the propounder to dispel the same. The suspicious circumstances raised by the Caveator seeking to attack the genuineness of the Will should be germane and surrounding the execution of the Will alone. Caveators cannot cite circumstances that are not material or relevant to execution of the Will and try to pinpoint circumstances that have arisen post execution of the Will like in the present case where the Caveator has alleged that the Will was registered during lunch time or in other cases by trying to take advantage of any conflict in evidence adduced by the propounder or the witnesses as long as they do not touch upon the facts surrounding due execution and attestation of the Will. Courts should apply the arm chair rule and see to it that unrelated and unwarranted circumstances are not projected to defeat the solemn wishes of a testator/testatrix. The defence set up by the respondent was that the Will was brought about by undue influence and coercion. In such cases on the propounder discharging the initial burden required to prove the Will the onus shifts to the Caveator to prove the allegations of undue influence and coercion. This Court has already found that the Caveator has not adduced any evidence whatsoever aiding her defence that the signatures of her mother and herself were obtained in blank papers and using the said papers the Will was brought about - It is very unfortunate that the respondent having attested the Will has chosen to put forth a false case in order to challenge the Will and deny the benefits of the bequests made under the Will in very natural circumstances by her mother which have also been clearly explained in the recitals of Ex.P1-Will also. Appeal allowed.

Summary

Issues Involved:
1. Whether the Will dated 06.03.2005 is genuine and valid.
2. Whether the plaintiff is entitled to a decree for Letters of Administration with the Will annexed.
3. Whether the Will is affected by the provisions of the Benami Transactions Prohibition Act, 1988.
4. Whether there are any suspicious circumstances surrounding the execution of the Will.

Summary:

Issue 1: Validity and Proof of the Will
The Court examined whether the Will dated 06.03.2005 was duly executed and attested as per Section 63(c) of the Indian Succession Act, 1925, and Section 68 of the Indian Evidence Act, 1872. The appellant and respondent were the attesting witnesses. The appellant's proof affidavit and cross-examination confirmed the execution and attestation of the Will. The respondent admitted her signature on the Will but alleged it was obtained under coercion. The Court found the registration of the Will, the signatures, and the lack of credible evidence from the respondent to support her claims of coercion and forgery, sufficient to prove the Will's validity. The Court concluded the Will was duly executed and attested, satisfying legal requirements.

Issue 2: Entitlement to Letters of Administration
The Court addressed whether the appellants could claim the property under a benami transaction, considering the Benami Transactions Prohibition Act, 1988. The Court applied the tests from His Highness Maharaja Pratap Singh Vs. Her Highness Maharani Sarojini Devi and Others to determine if the transaction was benami. The evidence showed the appellants' father funded the property purchase, and the testatrix held it in name only. The Court found the transaction occurred before the Act's enforcement and was not prohibited by it. Thus, the appellants were entitled to the Letters of Administration.

Issue 3: Suspicious Circumstances
The Court evaluated if there were suspicious circumstances surrounding the Will's execution. The respondent cited the testatrix's age, registration delay, different witnesses for execution and registration, and the timing of registration as suspicious. The Court dismissed these claims, noting the testatrix's sound mental state, the legal allowance for delayed registration, and the lack of evidence for irregularities during registration. The Court emphasized that suspicious circumstances must directly relate to the Will's execution, not subsequent events. The Court found no valid suspicious circumstances to invalidate the Will.

Conclusion:
The Court allowed the appeal, granting the appellants the Letters of Administration with the Will annexed, and dismissed the respondent's objections. The Court found the Will genuine, duly executed, and unaffected by the Benami Transactions Prohibition Act, 1988, with no suspicious circumstances surrounding its execution.