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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 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.
———————–
[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

———————–
17

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