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Saturday, September 20, 2014

Proof will - No suspicious clouds - Apex court held that mere exclusion of sons does not invalid the will - active participation of beneficiary in getting the attestator and in execution & registration does not invalid the will - mere no filing of complaint about the lose of original will does not invalid will - English will - practice to read over and explained by Sub- Reg. removed all doubts over the will in English language = CIVIL APPEAL NO. 9282 OF 2010 LEELA RAJAGOPAL & ORS. … APPELLANT (S) VERSUS KAMALA MENON COCHARAN & ORS. … RESPONDENT (S) =2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41890

       Proof will - No suspicious clouds - Apex court confirmed the judgment of High court and held that mere exclusion of sons does not invalid the will - active participation of beneficiary in getting the attestator and in execution & registration does not invalid the will - mere no filing of complaint about the lose of original will does not invalid will - English will - practice to read over and explained by Sub- Reg. removed all doubts over the will in English language =

The  said  question  is
with regard to the validity and legality of a Will dated 11.1.1982  executed
by one K.P. Janaki  Amma,  the  mother  of  the  appellants  and  the  first
respondent.  
The  learned  Trial  Judge  by  his  order  dated   23.01.2001
dismissed the probate proceedings instituted by the first respondent  (later
converted into a Suit being T.O.S. No. 16  of  1994)  by  holding  that  the
execution of the Will dated 11.1.1982 is surrounded by a host of  suspicious
circumstances rendering the same legally unacceptable.
The  aforesaid  view
of the learned Trial Judge of the High Court having been overturned  by  the
Division Bench of the High Court by impugned  order  dated  18.08.2009,  the
present appeals have been filed.=

A Will may have  certain  features  and  may  have  been  executed  in
certain circumstances which may  appear  to  be  somewhat  unnatural.  
Such
unusual  features  appearing  in  a  Will  or  the  unnatural  circumstances
surrounding its execution will definitely justify a  close  scrutiny  before
the same can be accepted.
 It is the overall assessment of the Court on  the
basis of such scrutiny; the cumulative effect of the  unusual  features  and
circumstances  which  would  weigh  with  the  Court  in  the  determination
required to be made by it.
The judicial verdict, in the last  resort,  will
be on the  basis  of  a  consideration  of  all  the  unusual  features  and
suspicious circumstances put together and not on the impact  of  any  single
feature that may be found in a Will or  a  singular  circumstance  that  may
appear from the process leading to its execution or registration.
This,  is
the essence of the  repeated  pronouncements  made  by  this  Court  on  the
subject including the decisions referred to and relied upon before us.

11.   In the present case, a close reading of the Will indicates  its  clear
language, and its unambiguous purport and effect.
The mind of the  testator
is clearly discernible  and  the  reasons  for  exclusion  of  the  sons  is
apparent from the Will  itself.   
Insofar  as  the  place  of  execution  is
concerned, the inconsistency appearing in the verification  filed  alongwith
the application for probate by PW-3  and  the  oral  evidence  of  the  said
witness tendered in Court is capable of being understood  in  the  light  of
the fact that  the  verification  is  in  a  standard  form  (Form  No.  55)
prescribed by the Madras  High  Court  on  the  Original  Side,  as  already
noticed.  
Besides, in the facts of the present  case  the  participation  of
the first respondent in the execution and registration of  the  Will  cannot
be said to be a circumstance that would warrant an adverse  conclusion.  
The
conduct of the first respondent in summoning her  friend  (PW-3)  to  be  an
attesting witness and in taking the  testator  to  the  office  of  the  Sub
Registrar should, again, not warrant any adverse conclusion. 
It also  cannot
escape notice that the Will dated 11.1.1982 is identical with  the  contents
of the earlier Will dated 28.12.1981.   
Insofar  as  the  execution  of  the
Will  dated  28.12.1981  and  its  registration  is  concerned   no   active
participation has been attributed to the first respondent.   
The  change  of
the attesting witnesses and the non-examination of  Seetha  Padmanabhan  who
had  attested  the  second  Will  dated  11.1.1982  has  been   sufficiently
explained.

12.   The lack of knowledge of English even if  can  be  attributed  to  the
testator would not fundamentally alter  the  situation  inasmuch  as  before
registration of the Will the contents thereof  can  be  understood  to  have
been  explained  to  the  testator  or  ascertained  from  her  by  the  Sub
Registrar, PW-4, who had deposed that such a practice  is  normally  adhered
to.
The non-production of the original Will and reliance on  the  certified
copy thereof is a circumstance which has been reasonably  explained  by  the
first respondent (plaintiff).
The original Will,  after  its  execution  on
11.1.1982, was in the custody of the testator and it is only on the  day  or
her death i.e. 27.4.1991 that the first respondent  (plaintiff)  could  find
that the Will was missing from the envelope marked ‘KPP Will’.  
The  stand
of the plaintiff that the original Will was lost while  in  the  custody  of
her mother and her knowledge of such loss on the day of her  mother’s  death
cannot be disbelieved merely because no report in  this  regard  was  lodged
before the police.
13.   All the unusual and allegedly suspicious circumstances  being  capable
of being understood in the manner indicated above, we cannot find any  fault
with the conclusions reached by the High Court while reversing the  judgment
of the learned Trial Court.
14.   Before parting we would like to observe that the  very  fact  that  an
appeal to this Court can be lodged only  upon  grant  of  special  leave  to
appeal would indicate the highly circumscribed nature  of  the  jurisdiction
of this Court.  In contrast to a statutory appeal,  an  appeal  lodged  upon
grant of special leave pursuant to a provision  of  the  Constitution  would
call for highly economic exercise of the power which  though wide to  strike
at injustice wherever it occurs must display  highly  judicious  application
thereof.  Determination of facts made by the High Court sitting as  a  first
appellate court or even while concurring as a second appellate  court  would
not be reopened unless the same give rise to questions of law  that  require
a serious debate or discloses wholly unacceptable conclusions of fact  which
plainly demonstrate a travesty of justice. Appreciation  or  re-appreciation
 of evidence must come to a halt at some stage of the  judicial  proceedings
and cannot percolate to the  constitutional  court  exercising  jurisdiction
under Article 136.

15.    We,  accordingly,  dismiss  these  appeals  affirm  the  order  dated
18.08.2009 passed by the Division Bench of the High Court in  Original  Side
Appeal No. 185 of 2001.  However, in the  facts  and  circumstances  of  the
case, we make no order as to cost.   
2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41890
                      REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 9282 OF 2010


LEELA RAJAGOPAL & ORS.                     … APPELLANT (S)

                                   VERSUS

KAMALA MENON COCHARAN & ORS. … RESPONDENT (S)

                                    WITH

                        CIVIL APPEAL NO. 9286 OF 2010
                        CIVIL APPEAL NO. 7004 OF 2012


                               J U D G M E N T



RANJAN GOGOI, J.

1.     All the three appeals being directed against the common judgment  and
order of the High Court dated 18.08.2009  were  heard  analogously  and  are
being disposed of by this order.

2.    In the present appeals, which challenge a judgment of reversal  passed
by a Division Bench of the High Court of Madras, determination  of  what  is
essentially  a  question  of  fact  confronts  this  Court  exercising   its
jurisdiction under Article 136 of the Constitution.  The  said  question  is
with regard to the validity and legality of a Will dated 11.1.1982  executed
by one K.P. Janaki  Amma,  the  mother  of  the  appellants  and  the  first
respondent.   The  learned  Trial  Judge  by  his  order  dated   23.01.2001
dismissed the probate proceedings instituted by the first respondent  (later
converted into a Suit being T.O.S. No. 16  of  1994)  by  holding  that  the
execution of the Will dated 11.1.1982 is surrounded by a host of  suspicious
circumstances rendering the same legally unacceptable.  The  aforesaid  view
of the learned Trial Judge of the High Court having been overturned  by  the
Division Bench of the High Court by impugned  order  dated  18.08.2009,  the
present appeals have been filed.

3.    We have heard Mr. Krishnan Venugopal  and  Mr.  Dhruv  Mehta,  learned
senior counsels as well as Mr. T.  Harish  Kumar  learned  counsel  for  the
appellants and Mr. Vijay Hansaria,  learned  senior  counsel  appearing  for
respondent No. 1.

4.    Testator  Late  Janaki  Amma  had  initially  executed  a  Will  dated
28.12.1981 bequeathing house property bearing No. 8, Malony Road, T.  Nagar,
Madras-17 in favour of the first respondent Kamala  Menon  Cochran  and  her
grand-daughter Geetha (daughter of her  predeceased  daughter  Leela).   The
said Will, inter alia, contained a recital that the  testator  had  4  sons.
In the Will dated 28.12.1981 the testator had  acknowledged  that  her  sons
are all well settled in life and had properties  purchased  in  their  names
during the life time of their father.  The testator had further stated  that
she had suffered extreme bereavement on the  death  of  her  daughter  Leela
which occurred on 02.02.1975 and therefore out of the  deep  attachment  for
her grand-daughter, Geetha, and also as  her  second  daughter  K.P.  Kamala
Menon i.e. respondent No. 1 aged 46 years who is a Principal  in  a  College
and a spinster she is bequeathing the house property in favour of her grand-
daughter and her daughter to the exclusion  of  her  sons.   The  said  Will
dated  28.12.1981  was  superseded/revoked  by  a  subsequent   Will   dated
11.1.1982 which contained similar  recitals  as  in  the  first  Will  dated
28.12.1981 except  for  the  fact  that  instead  of  4  sons  the  testator
mentioned that she had 5 living sons.  After the death of Janaki Amma  which
occurred on 27.04.1991  the  respondent  No.  1  had  instituted  a  probate
proceedings which was later converted into a suit, as the Will was  disputed
by the sons of the deceased.

5.    The appellants who were the defendants in  the  suit  and  respondents
before the High Court had contested the legal validity  of  the  Will  dated
11.1.1982 by  asserting  that  the  same  was  not  a  valid  instrument  of
conveyance executed on the free volition of  the  testator;  rather  it  was
dictated at the instance of the first respondent-daughter who had  exercised
undue  influence  and  coercion  on  the  testator.   To  substantiate   the
contentions advanced, the contesting defendants had  led  evidence  to  show
that the Will was executed in  circumstances  which  give  rise  to  serious
doubts, with regard to its voluntary execution by the testator.

6.    The learned Trial Court  on  a  consideration  of  the  cases  of  the
parties and the evidence and materials adduced took note  of  the  following
circumstances surrounding the execution of the Will :

(i)   No specific reason was disclosed as to why the sons i.e.  the  present
appellants had been excluded from the Will;

(ii)  At the time of execution of the Will the respondent  No.  1  had  come
down from Tirupathi where she was working as a college teacher/Principal  to
Madras and was staying with the mother i.e. the testator;

(iii) Only a fortnight  earlier  to  the  execution  of  the  Will  i.e.  on
10.12.1981 the testator had written a letter (Ex. P8) to  one  of  her  sons
Thangamani (Predecessor-in-interest of appellants in C.A. No. 9282 of  2010)
expressing her intention to partition the  house  property,  which  was  the
subject matter of Will, equally among all the children;

(iv)  Non-production of the original copy of the Will;

(v)   The discrepancy in the evidence of  the  witnesses  of  the  plaintiff
with regard to the place of execution of the Will; and

(vi)  The prominent part played by the plaintiff (respondent No.  1  herein)
in the registration of the Will.

      These circumstances,  according  to  the  learned  Trial  Court,  were
suspicious enough to justify a conclusion that the  Will  ought  not  to  be
accepted as a valid instrument executed on the free  will  and  volition  of
the testator.
7.    In appeal, the  High  Court,  on  consideration  of  the  grounds  and
reasons which had persuaded the learned Trial Court to take the above  view,
thought it proper to disagree with the same and  reverse  the  consequential
findings.  It may be noticed, at this stage,  that  in  its  very  elaborate
order the High Court had gone  into  each  of  the  circumstances  mentioned
above; the evidence in support thereof as adduced by  the  parties  and  the
arguments advanced before  reversing  the  findings  of  the  learned  Trial
Court.
8.    Learned counsels for the appellants, in all the three  appeals  before
us, submitted that between 11.1.1982 i.e. alleged date of execution  of  the
Will and 27.4.1991 i.e. date of death of  the  testator,  the  beneficiaries
under the Will had not informed anybody about  the  existence  of  the  Will
which according to the learned  counsel  is  unnatural.   Pointing  out  the
evidence with regard to the place of execution of the Will, learned  counsel
have contended that there  is  an  apparent  inconsistency  in  this  regard
inasmuch as while  in  the  verification  submitted  alongwith  the  probate
petition as required under Sections 281 and 282  of  the  Indian  Succession
Act, 1925 PW-3 had claimed that the Will was executed in the  house  of  the
testator, in her evidence, PW-3, had stated that the same  was  executed  in
the office of the Sub-Registrar.  However, PW-4, the Sub-Registrar  who  was
examined did not categorically depose about the place  where  the  Will  was
executed.   Reference  has  been  made  by  the  learned  counsels  for  the
appellants to other suspicious  circumstances,  enumerated  hereinabove,  to
contend that the same are sufficient and adequate to  justify  rejection  of
the Will in question.  Specifically, it was argued that no  explanation  has
been offered for non-production of the original Will and the High Court  has
accepted the story of loss of the Will on the mere statement  of  the  first
respondent.   On the said basis it is contended that the  first  respondent,
as the Plaintiff, could not have led secondary evidence in  support  of  the
Will in the absence of clear  and  convincing  proof  of  the  loss  of  the
original Will.  Bringing in a different set of attesting witnesses in  place
of the witnesses who had attested the execution  of  the  first  Will  dated
28.12.1981; the non-examination of the attesting witness Seetha  Padmanabhan
and the examination of the second witness (PW-3)  Jaya  Lakshmi  who  was  a
colleague of  the  plaintiff  are  other  circumstances  which  the  learned
counsel for the appellants contends to be highly  suspicious.   The  absence
of any evidence to  show  the  lack  of  cordial  relationship  between  the
testator and her sons and the fact that defendant No.  4  i.e.  one  of  the
sons was actually looking after the mother has also been  stressed  upon  to
point out that there was no reason to exclude the sons under the  Will.   In
fact, learned counsels for the appellants have pointed  out  that  PW-2  and
PW-3 had clearly and categorically stated that the relationship between  the
testator and her sons was good.  It is further argued that the letter  dated
10.12.1981 (Ex. P8) of the  mother  to  one  of  the  sons,  properly  read,
indicates a very cordial relationship  and  the  purport  thereof  has  been
thoroughly misinterpreted  by  the  High  Court  to  come  to  the  impugned
findings and conclusions.  The lack of knowledge of English on the  part  of
the testator has also been cited as  another  circumstance  to  justify  its
rejection.  Reliance has been placed on behalf  of  the  appellants  on  the
decision of this Court in H. Venkatachala Iyengar  Vs. B.N. Thimmajamma  and
Others[1]  as well as on a more recent pronouncement in  Bharpur  Singh  and
Others  Vs. Shamsher Singh[2] to contend that active  participation  of  the
first respondent in execution and registration  of  the  Will  ought  to  be
viewed by us  as  raising  serious  doubts  with  regard  to  the  voluntary
execution of the Will by the testator.   Two other decisions of  this  Court
in Rani Pnrnima Debi and  Another   Vs.  Kumar  Khagendra  Narayan  Deb  and
Another[3] and Apoline D’souza  Vs. John D’souza[4] have  also  been  placed
to contend that the absence of any evidence to show that the Will  was  read
over and explained to the testator, in view of  her  lack  of  knowledge  of
English, would be crucial for determination of the authenticity of the  Will
in question.
9.    Opposing the arguments advanced on  behalf  of  the  appellants,  Shri
Vijay Hansaria, learned senior counsel appearing for respondent  No.  1  has
argued that the acceptance  or  rejection  of  the  Will,  in  the  ultimate
analysis would depend on the satisfaction of the judicial conscience of  the
Court with regard to its due execution.  Shri Hansaria  has  submitted  that
no single circumstance would be determinative of the question and it is  the
cumulative effect thereof which would be vital to the adjudication  required
to be made by the Court.  The mere participation of the first respondent  in
the execution and registration of the Will; her presence in  Madras  at  the
time of execution of the Will will in no way affect  the  validity  thereof,
it is contended.  Insofar as the discrepancy in the place  of  execution  of
the Will is concerned, Shri Hansaria has pointed out that  the  verification
filed alongwith the  application  for  probate  was  in  the  standard  form
prescribed by the Original Side Rules of the High  Court  of  Judicature  at
Madras (Form No. 55 which mentions the place of execution as  the  House  of
…….). Insofar as the loss of the original Will is concerned it is  submitted
that the same was in custody of the testator and was  found  to  be  missing
only after her death.   It  is  in  these  circumstances  that  the  probate
proceedings were instituted on the basis of the certified copy of  the  Will
which is authorised under the  provisions  of  the  Indian  Succession  Act.
Insofar as the issue with regard to knowledge of English of the testator  is
concerned, apart from pointing out the relevant part of the evidence of  the
witnesses to show that the testator could read and  understand  English,  it
is argued that PW-4  (Sub-Registrar)  had  deposed  that  in  all  cases  of
registration the testator is asked whether he/she is aware of  the  contents
of the Will.  Shri  Hansaria  has  cited  the  decision  of  this  Court  in
Pentakota  Satyanarayana  and  Others   Vs.   Pentakota   Seetharatnam   and
Others[5] to contend that mere active participation in the  registration  of
the Will by itself would not be a vitiating factor.  Reliance has also  been
placed on two decisions of this Court in Mahesh Kumar (Dead)  by  Lrs.   Vs.
Vinod Kumar and Others[6]   and Ved Mitra Verma  Vs. Dharam Deo Verma[7]  to
show  that  mere  exclusion  of  the  other  heirs  will  not  vitiate   the
disposition made by a Will.

10.   A Will may have  certain  features  and  may  have  been  executed  in
certain circumstances which may  appear  to  be  somewhat  unnatural.   Such
unusual  features  appearing  in  a  Will  or  the  unnatural  circumstances
surrounding its execution will definitely justify a  close  scrutiny  before
the same can be accepted.  It is the overall assessment of the Court on  the
basis of such scrutiny; the cumulative effect of the  unusual  features  and
circumstances  which  would  weigh  with  the  Court  in  the  determination
required to be made by it.  The judicial verdict, in the last  resort,  will
be on the  basis  of  a  consideration  of  all  the  unusual  features  and
suspicious circumstances put together and not on the impact  of  any  single
feature that may be found in a Will or  a  singular  circumstance  that  may
appear from the process leading to its execution or registration.  This,  is
the essence of the  repeated  pronouncements  made  by  this  Court  on  the
subject including the decisions referred to and relied upon before us.

11.   In the present case, a close reading of the Will indicates  its  clear
language, and its unambiguous purport and effect.  The mind of the  testator
is clearly discernible  and  the  reasons  for  exclusion  of  the  sons  is
apparent from the Will  itself.   Insofar  as  the  place  of  execution  is
concerned, the inconsistency appearing in the verification  filed  alongwith
the application for probate by PW-3  and  the  oral  evidence  of  the  said
witness tendered in Court is capable of being understood  in  the  light  of
the fact that  the  verification  is  in  a  standard  form  (Form  No.  55)
prescribed by the Madras  High  Court  on  the  Original  Side,  as  already
noticed.  Besides, in the facts of the present  case  the  participation  of
the first respondent in the execution and registration of  the  Will  cannot
be said to be a circumstance that would warrant an adverse  conclusion.  The
conduct of the first respondent in summoning her  friend  (PW-3)  to  be  an
attesting witness and in taking the  testator  to  the  office  of  the  Sub
Registrar should, again, not warrant any adverse conclusion. It also  cannot
escape notice that the Will dated 11.1.1982 is identical with  the  contents
of the earlier Will dated 28.12.1981.   Insofar  as  the  execution  of  the
Will  dated  28.12.1981  and  its  registration  is  concerned   no   active
participation has been attributed to the first respondent.   The  change  of
the attesting witnesses and the non-examination of  Seetha  Padmanabhan  who
had  attested  the  second  Will  dated  11.1.1982  has  been   sufficiently
explained.

12.   The lack of knowledge of English even if  can  be  attributed  to  the
testator would not fundamentally alter  the  situation  inasmuch  as  before
registration of the Will the contents thereof  can  be  understood  to  have
been  explained  to  the  testator  or  ascertained  from  her  by  the  Sub
Registrar, PW-4, who had deposed that such a practice  is  normally  adhered
to.  The non-production of the original Will and reliance on  the  certified
copy thereof is a circumstance which has been reasonably  explained  by  the
first respondent (plaintiff).  The original Will,  after  its  execution  on
11.1.1982, was in the custody of the testator and it is only on the  day  or
her death i.e. 27.4.1991 that the first respondent  (plaintiff)  could  find
that the Will was missing from the envelope marked ‘KPP Will’.    The  stand
of the plaintiff that the original Will was lost while  in  the  custody  of
her mother and her knowledge of such loss on the day of her  mother’s  death
cannot be disbelieved merely because no report in  this  regard  was  lodged
before the police.
13.   All the unusual and allegedly suspicious circumstances  being  capable
of being understood in the manner indicated above, we cannot find any  fault
with the conclusions reached by the High Court while reversing the  judgment
of the learned Trial Court.
14.   Before parting we would like to observe that the  very  fact  that  an
appeal to this Court can be lodged only  upon  grant  of  special  leave  to
appeal would indicate the highly circumscribed nature  of  the  jurisdiction
of this Court.  In contrast to a statutory appeal,  an  appeal  lodged  upon
grant of special leave pursuant to a provision  of  the  Constitution  would
call for highly economic exercise of the power which  though wide to  strike
at injustice wherever it occurs must display  highly  judicious  application
thereof.  Determination of facts made by the High Court sitting as  a  first
appellate court or even while concurring as a second appellate  court  would
not be reopened unless the same give rise to questions of law  that  require
a serious debate or discloses wholly unacceptable conclusions of fact  which
plainly demonstrate a travesty of justice. Appreciation  or  re-appreciation
 of evidence must come to a halt at some stage of the  judicial  proceedings
and cannot percolate to the  constitutional  court  exercising  jurisdiction
under Article 136.

15.    We,  accordingly,  dismiss  these  appeals  affirm  the  order  dated
18.08.2009 passed by the Division Bench of the High Court in  Original  Side
Appeal No. 185 of 2001.  However, in the  facts  and  circumstances  of  the
case, we make no order as to cost.
                         ...………….…………………J.
                                              [RANJAN GOGOI]


                                                         ..….…....……………………J.
                                              [R.K. AGRAWAL]


NEW DELHI,
SEPTEMBER 08, 2014.


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[1]    1959 Supp (1) SCR 426
[2]    2009(3) SCC 687
[3]    (1962) 3 SCR 195
[4]    2007 (7) SCC 225
[5]    2005 (8) SCC 67
[6]    2012 (4) SCC 387
[7]    2014 (9) SCALE 219

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