CMA/2896/2002 of PUSHPA CHARLES Vs MICHAEL NICHOLAS AND 4 ORS on 30 December 2009

JUDGMENT:

This Civil Miscellaneous Appeal is filed under Section 384 of theIndian Succession Act 1925 (‘the Act’ for brevity) against the orderdated 1.8.2002 passed by the Principal District Judge, Ranga Reddyin O.P.No.1214 of 1998.

2. Respondent No.1-Michael Nicholas is the petitioner inO.P.No.1214 of 1998. The appellant is the 5[th] respondent in the saidO.P. The respondents 2 to 6 herein are the respondent Nos.1 to 4 & 6in the said O.P.

3. For the sake of the convenience, the parties are referred to as theyare arrayed in O.P.No.1214 of 1998. Charles Nicholas was an AuditInspector in APSRTC. The 5[th] respondent Smt Pushpa married Charles Nicholas, the brother of the petitioner, on11[th] January 1982. She was an employee in Mysore University as onthe date of marriage and even after the marriage, she continued to stayat the place of her employment. According to the petitioner, SmtPushpa Charles deserted Charles Nicholas on 5.3.1985 and has beenliving at Mysore. Charles Nicholas underwent operation for hisEdenocarcinoma Prostrate and Renal failure.During that period, the petitioner being his elder brother took care of him. Smt Pushpa nevercame to Hyderabad to look after the welfare of Charles Nicholas. SmtPushpa has no issues out of the wedlock. Charles Nicholas being anemployee of APSRTC has to get various service benefits from hisemployer. He suffered from prostrate cancer and took treatment inNizam Orthopedic Hospital, Hyderabad. He executed a Will on26.12.1996 in the presence of an Advocate and Notary by nameP.V.Rajender Prasad and two attestors namely; V.Manoranjan Dasand Sri N.Jayashankar in sound disposing state of mind. As per theWill, he bequeathed all service benefits and other benefits in favour ofthe petitioner and they are:-

1. LIC Policy No.38113575 insured for Rs. 10,000/-

2. Provident Fund benefit from the officeSecretary, APSRTC Provident FundSecretary, APSRTC Provident Fund Trust, Musheerabad, Hyderabad Rs.2,16,000/-.

3. Gratuity amount Rs.1,00,000/-

4. Staff Retirement Benefit Scheme Rs. 4,513/-

5. Employee death link insurance scheme Rs. 26,000/-

6. Staff Benevolent and Gift Scheme Rs. 65,000/-

7. Co-operative Credit Society (MRO) Fund Rs. 66,570/- ________________

Total: Rs.4,88,083/-

________________

Charles Nicholas died on 27.12.1996. His brother Michel Nicholasfiled a petition under Section 276 of the Indian Succession Act, 1925for grant of Probate of Will dated 26.12.1996 so as to enable him toreceive the service benefits from the office of the employer of thetestator-Charles Nicholas. Respondent No.5 Smt Pushpa Charlesresisted the claim of the petitioner. She disputed the Will propoundedby the petitioner on the ground that the same was obtained by himunder coercion in the last days of the testator while he was lying onbed in helpless situation not in a position to speak and in sub-conscious state due to Renal failure. The petitioner prevented her

from attending last rights of her husband-testator. Para Nos.8 & 9 ofthe counter affidavit need to be noted and they are thus:- “In reply to the averments contained in Para No.7, 8, 9,10 & 11 therespondent herein denies the same as false, fabricated and are onlyinvented for the purpose of instituting this O.P in an attempt tomisappropriate the terminal benefits of her late husband i.e., lateCharles Nicholas under the guise of a will which is alleged to havebeen executed by her husband and in an effort to disentitle thisrespondent to all such terminal benefits to which she alone islegitimately entitled as she is the only, surviving successor or heir tothe aforesaid terminal benefits of her late husband, since she isissueless, earlier her husband late Charles Nicholas nominated hismother Smt Arogya Marry as the nominee for the said benefits andsince she already expired all the benefits should legitimately go infour of respondent No.5 herein, since she is the successor to thesame. Further, the said will cannot be relied upon since the same isobtained from late Charles Nicholas by resorting to pressure tactics and therefore the petitioner is put to strict proof of the same.

It is submitted that since this respondent has already filed asuit bearing No.O.S.680 of 1999 on the file of IV Junior Civil Judge,City Civil Court, Hyderabad for declaring herself to be entitled for allthe terminal benefits of her late husband Sri late Charles Nicholasand as the same subject matter of the said suit is also the subjectmatter of the above O.P for a succession certificate and grant ofprobate, instant case and proceedings would certainly amount tomultiplicity of proceedings more particularly when the petitioner hereinis not entitled to get the relief prayed for as the proceedings beingsummary in nature and where the validity of otherwise of the willcannot in any event be adjudicated upon, hence the above saidpetition is not maintainable in the light of the respondent No.5,disputing the validity and veracity of will, the petition may thereforebe dismissed illumine.”

4. The learned District Judge formulated the following points forconsideration:-

1. Whether Charles Nicholas had duly executed Ex.A2will, dated 26.12.1996 in sound and disposing stateof mind and it was attested in accordance with law?will, dated 26.12.1996 in sound and disposing stateof mind and it was attested in accordance with law?

2. To what relief?

5. On behalf of the petitioner, he got himself examined as P.W.1 andexamined Attestor of Will namely; Manoranjan Das as P.W.2 andAttestor-cum-Notary namely; P.V.Rjendra Prasad as P.W.3 andmarked three documents as Exs.A-1, A-2 and X-1. Ex.A-1 is the DeathCertificate, Ex.A-2 is the Original Will and Ex.X-1 is the NotaryRegister. On behalf of the 5[th] respondent- wife, she got herselfexamined as R.W.1 and examined one A.Zachkrah as R.W.2.

6. The learned District Judge, on considering the evidence broughton record and on hearing the counsel appearing for the parties, heldIssue No.1 in favour of the petitioner and consequently, allowed thepetition for grant of Probate of Will in respect of the service benefits ofCharles Nicholas, who died on 27.12.1996, by an order dated1.8.2002. The said order is assailed in this Civil MiscellaneousAppeal.

7. Heard learned counsel appearing for the appellant and learnedCounsel appearing for the 1[st] respondent.

8. Learned Counsel appearing for the appellant submits that Ex.A2Will propounded by the 1[st] respondent is shrouded with suspiciouscircumstances and since the suspicious circumstances are notproperly dispelled, the said Will is liable to be rejected in which case,the order impugned in this Civil Miscellaneous Appeal is liable to beset aside. In elaborating his arguments, he would submit that as onthe date of the alleged execution of the Will, the testator was not insound state of mind and he was incapable of making bequests withregard to his properties and that the beneficiary i.e., the 1[st] respondentwas very much present at the time of execution of the Will and thatitself is sufficient to show that he dominated the will of the testator andthe same would lead to draw an inference that the testator was prevailed over to execute the Will as desired by the 1[st] respondent. He would also submit that there was no special reason for exclusion ofthe natural heir i.e., the wife, who is no other than the appellant herein,from any of the service benefits. A further contention has beenadvanced by him that under no circumstances, a normal person couldexecute the Will excluding the wife from receiving any of his servicebenefits. The learned counsel took me to the evidence of P.Ws.2 and3 and stressed that there was no consistency with regard to the time ofexecution of Ex.A2 Will. P.W.2 claims to have gone to the house of thetestator in the evening hours around 5.P.M., on 26.12.1996 andwhereas P.W.3 stated that he went to the house of the testator at about1 P.M. The learned counsel magnifying this inconsistency urged thatthe presence of PWs.2 and 3 at the time of execution of Ex.A2 Will iswholly unbelievable and in which case the suspicious circumstancesshrouding Ex.A2 Will propounded by the 1[st] respondent remainundispelled and thus no credence could be given to the Willpropounded by the 1[st] respondent.

9. The learned counsel appearing for the 1[st] respondent submitsthat the appellant at no point of time, after the marriage, resided withthe testator and she did not even call on the testator while he wassuffering from serious ailments and it is the 1[st] respondent and hisfamily members who took care of him for a quite long time and indeed,the testator resided with the 1[st] respondent as one of the familymembers and the testator bequeathed the service benefits in favour ofthe 1[st] respondent out of love and affection being deeply overwhelmedby the services rendered by the 1[st] respondent and his familymembers. He would further submit that the minor discrepancy withregard to the timing of the presence of P.Ws.2 and 3 at the house of thetestator on the date of the Will is not sufficient to doubt thegenuineness of the Will or to reject the testimony of P.Ws.2 and 3 in toto. More particularly P.Ws.2 and 3 are very responsible persons inthe society and there is no reason for them to speak false. The TrialCourt considered the evidence of P.Ws.2 and 3 in right perspectiveand found that Ex.A2-Will is a genuine one and the same has beenexecuted by the testator out of his own free will while in sounddisposing state of mind. The learned counsel further submitted that theappellant did not even care to attend on the testator while he wasundergoing treatment in Nizam Institute of Orthopedic Hospital andshe did not even visit the testator while he was suffering from variousailments from the year 1985.

10. The mode of proving the will does not ordinarily differ from that ofproving any other document except as to the special requirement ofattestation prescribed in the case of a will by Section 63 of the IndianSuccession Act, 1925. The onus of proving the will is on thepropounder and in the absence of suspicious circumstancessurrounding the execution of the will, proof of testamentary capacityand proof of the signature of the testator, as required by law, issufficient to discharge the onus. Where, however, there aresuspicious circumstances, the onus is on the propounder to explainthem to the satisfaction of the Court before the Court accepts the willas genuine. Even where circumstances give rise to doubts, it is for thepropounder to satisfy the conscience of the Court. The suspiciouscircumstances may be regarding the genuineness of the signature ofthe testator, the condition of the testator’s mind, the disposition made inthe will being unnatural, unprobable or unfair in the light of relevantcircumstances, or there might be other indications in the will to showthat the testator’s mind was not free. In such a case, the court wouldnaturally expect that all legitimate suspicions should be completelyremoved before the document is accepted, as the last will of thetestator. If the propounder himself takes a prominent part in theexecution of the will, which confers a substantial benefit on him, that isalso a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. Ifthe propounder succeeds in removing the suspicious circumstances,the Court would grant probate, even if the will might be unnatural andmight cut off wholly or in part near relations. Any and everycircumstance is not a ‘suspicious’ circumstance. A circumstance wouldbe suspicious when it is not normal or is not normally expected in anormal situation or is not expected of a normal situation or is not of anormal person.

11. ‘Will’ being a document has to be proved by primary evidenceexcept where the court permits a document to be proved by leadingsecondary evidence. Since it is required to be attested, as provided inSection 68 of the Indian Evidence Act, 1872, it cannot be used asevidence until one of the attesting witnesses at least has been calledfor the purpose of proving its execution, if there be an attesting witnessalive, and subject to the process of the court and capable of givingevidence. In addition, it has to satisfy the requirements of Section 63of the Indian Succession Act, 1925. In order to assess as to whetherthe Will has been validly executed and is a genuine document, thepropounder has to show that the Will was signed by the testator andthat he had put his signatures to the testament of his own free will; thathe was at the relevant time in a sound disposing state of mind andunderstood the nature and effect of the dispositions and that thetestator had signed it in the presence of two witnesses who attested itin his presence and in the presence of each other. Once theseelements are established, the onus, which rests on the propounder, isdischarged. But where there are suspicious circumstances, the onus ison the propounder to remove the suspicion by leading appropriateevidence. The burden to prove that the Will was forged or that it wasobtained under undue influence or coercion or by playing a fraud is onthe person who alleges it to be so.

12. The question for consideration is, whether the respondentsuccessfully discharged the onus of proving the due execution of thewill by producing the evidence of two attesting witnesses of the Will?

13. The learned counsel appearing for the appellant submits that thewill propounded by the 1[st] respondent is shrouded with the followingsuspicious circumstances: Firstly, all the benefits are given to the1[st] respondent to the exclusion of the appellant, who is no other thanthe wife of the testator; Secondly, the 1[st] respondent being thesole beneficiary under the will has taken active part in getting the willexecuted by the testator; Thirdly, there is no consistency in theevidence of PW.2-Attestor and PW.3-Advocate-Notary, who scribedthe will, with regard to the time of execution of the will. In support ofthe above referred submissions, reliance has been placed by thelearned counsel on the judgments of the Supreme Court in Smt. Indubala Bose v. Manindra Chandra Bose[[1]];Rani Purnima Debi v.Kumar Mhagendra Narayan Deb[[2]];Bhagwan Kaur v. KartarKaur[[3]];H.Venkatachala Iyengar v. B.N.Thimmajamma[[4]] and thejudgments of our High Court in M.Dhanalakshmi v.K.R.Saradamba[[5]]and Inkollu Sasikala v. Inkollu VenkataMurthy[[6]]

14. In Inkollu Sasikala’s case (6 supra), learned single Judge of thisCourt has observed that a reading of sub-section (2) of Section 264 ofthe Indian Succession Act, 1925, clearly discloses that Courts, outsidethe limits of the towns of Calcutta, Madras and Bombay, do not havethe power to receive application for grant of probate or letters ofadministration unless the State Government confers such power by anotification published in the official Gazette.

15. Section 264 of the Indian Succession Act, 1925, reads ashereunder:

“S.264. Jurisdiction of District Judge in granting and revoking probates, etc.: (1) The District Judge shall have jurisdiction ingranting and revoking probates and letters of administration in allcases within his district.

(2) Except in cases to which Section 57 applies, no Court in any localarea beyond the limits of the towns of Calcutta, Madras and Bombay,shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikhor Jaina or an exempted person, receive applications for probate orletters of administration until the State Government has, by anotification in the Official Gazette, authorized it so to do.”

16. In the case on hand, the testator is a Christian and therefore, sub-section (2) of Section 264 of the Indian Succession Act, 1925 cannotbe made applicable. In which case, the application filed by therespondent before the District Judge, Ranga Reddy District atL.B.Nagar under Section 276 of the Indian Succession Act, 1925, ismaintainable.

17. An element of solemnity is attached to the Will because it is thelast testament of the testator and speaks from the death of testator. Therefore, when suspicious circumstances are alleged, everyallegation cannot be treated as suspicious and if allegations are wellfounded, the Court has to subject the Will to a close scrutiny. InJaswant Kour v. Amrit Kaur[[7]], the Supreme Court, inter alia, pointedout that when the disposition in the Will appears to be unnatural,improbable or inferior in the light of relevant circumstances and whenpropounder took prominent role in execution of Will and receivedsubstantial benefit that itself is treated as suspicious circumstanceattending execution of Will. Here it may be mentioned that though insubsequent judgments, the Supreme Court held that mere exclusion ofnearest relative from bequeath by itself does not render the Willsuspicious, but in connection with attending circumstances, it wouldlead to suspicion. In Pinnaka Hanumantha Rao (died) per LR v.

Garlapati Dhanalakshmi @ Andallu[[8]], this Court after referring therelevant law culled out various principles with regard to proof of Willand while doing so, summarized inter alia following circumstances which can be treated as suspicious:

“The execution of the Will may be surrounded by suspiciouscircumstances like, -- a)The signature of the testator may be very shaky anddoubtful or not appears to be his usual signature.doubtful or not appears to be his usual signature.

b)The condition of the testator’s mind may be very feeble anddebilitated.debilitated.

c)The dispositions made in the Will may be unnatural,improbable or unfair in the light of relevant circumstanceslike exclusion of or absence of adequate provision for thenatural heirs without reasons.

d)The dispositions may not appear to be the result of thetestator’s free Will and mind.testator’s free Will and mind.

e)The propounder takes a prominent part in the execution ofthe Will conferring substantial benefit on him.the Will conferring substantial benefit on him.

f)The Testator used to sign blank papers.

g)The Will did not see the light of the day for long.

h)Incorrect recitals of essential facts.

i)The unregistered Will challenged as forged comes fromthe custody of major beneficiary.” the custody of major beneficiary.”

18. PW.2 is one of the attestators of Ex.A2 Will. He testifies that on26.12.1996 Charles Nicholas executed Will regarding his propertiesand terminal benefits while he was in sound disposing state of mind. He went to the house of Charles Nicholas on his own accord to extendChristmas greetings. For better appreciation, I may refer the relevantportion of his cross-examination, which reads as hereunder:

“At that time all the family members were there. He was lying on thebed but talking with us without any suffering. As I have gone to hishouse on the next day of Christmas as I could not meet him onChristmas day, I extended Christmas greetings and hoped earlyrecovery and also I said that I will pray to his early recovery. I waswith him for about 10 or 15 minutes. While coming out from the roomI talked with his family members and came away as I have someother work. I went to the house of Charles in evening hours around 5P.M. I have just exchanged pleasantries members of the family and Idid not talk anything any particular subject. I do not agree with thesuggestion of learned counsel, but his family members weredepending upon the income of Charles, the witness adds that on theother than Charles was depending on his family during early days of the life.”

The evidence of PW.2 is crystal clear that Charles Nicholas was insound disposing state of mind while executing the Will on26.12.1996. Nothing is elicited in the cross-examination to shake histestimony. No circumstance is brought out in the cross-examination todiscard his testimony.

19. PW.3 is an Advocate-Notary. He prepared a draft Will on theinstructions of Charles Nicholas. He got it typed and read over andexplained the contents to Charles Nicholas and thereupon CharlesNicholas admitted the contents and put his signatures and thumbmarks before him on Ex.A2 Will. He testifies that two more attestorswere present when Charles Nicholas put his signatures and thumbimpressions on Ex.A2 Will. Though this witness is subjected topiercing cross-examination, no material is elicited to discredit histestimony. This witness is a respectable person and there is noreason for him to speak false. His testimony is trustworthy andtherefore, implicit reliance can be placed on it.

20. Learned counsel appearing for the appellant by referring adiscrepancy with regard to the timing of execution of Ex.A2 Will tries tocategorize Ex.A2 Will is a document, which is shrouded withsuspicious circumstances.

21. PW.3 stated in the cross-examination that as per the request ofCharles Nicholas, he went to his house at about 1.00 P.M., prepared adraft Will on his instructions, read over the contents therein andhanded over the draft Will for being typed and thereafter, CharlesNicholas sent some of his relatives and got the draft Will typed. PW.2stated that he went to the house of Charles Nicholas on 26.12.1996 atabout 5.00 P.M. By referring these two timings, learned counselcontended that there is no consistency in the evidence of PWs.2 and 3with regard to the time of execution of the Will and therefore, the Will is

to be discarded. I do not see any substance in his contention sincePW.3 categorically stated that he prepared the draft Will after going tothe house of Charles Nicholas at 1.00 P.M. and thereafter, CharlesNicholas got the draft Will typed through some of his relations. Thetyped Will is Ex.A2. It is not the evidence of PW.3 that Ex.A2 Will wastyped at 1.00 P.M. The evidence of PW.3 is crystal clear that after hisgoing to the house of Charles Nicholas, he prepared a draft Will on theinstructions of Charles Nicholas and got it typed and thereupon,Charles Nicholas put his signatures and thumb marks. Therefore, thereis no discrepancy with regard to the timing of Charles Nicholas signingor marking his thumb impressions on Ex.A2 Will.

22. Much emphasis has been laid that since Ex.A2 Will propoundedby the respondent excludes the natural heir i.e. wife, it is to be said thatit is shrouded with suspicious circumstances and as the respondentfailed to dispel such circumstances, Ex.A2 Will is liable to bediscarded.

23. RW.1 is the wife of Charles Nicholas. Indisputably, CharlesNicholas suffered from various ailments such as Cancer, renalproblem etc. He was admitted to NIMS hospital for treatment. Themarriage between RW.1 and Charles Nicholas was performed on11.01.1982. By the date of the marriage, RW.1 was working inMysore. Though she claims that she came over to Hyderabad andstayed with Charles Nicholas, she did not place any material on recordto substantiate the same. She did not even attend on Charles Nicholaswhile he was undergoing treatment in the NIMS hospital. He wasresiding with his elder brother, who is the respondent herein, since thedeath of his father. His father died while he was 10 years old. Thisfact is evident from Ex.A2 Will. The relevant portion of which reads ashereunder:

“Whereas I have been brought up and educated by my eldest brotherMichael Nicholas since the death of my father at my age of 10

years. He and his wife and children have been looking after mywelfare needs and requirements even till today, I wish to bequeath allmy movables and my service retirement benefits whatsoever asclearly detailed in the schedule hereunder to my eldest brotherMichael Nicholas S/o.Late L.Nicholas aged about 70 years,Occupation: Business, R/o. House No.21-89, Syndicate BankColony, Dilsukhnagar, Hyderabad 500 660. I accomplish my abovewish I do hereby revoke and cancel all the nominations if any andnominate my brother to receive all of my service retirement benefitsand other benefits if any as detailed in the schedule hereunder:”

24. RW.1 made an attempt to prove that she lived with CharlesNicholas for some time after the marriage at Hyderabad. Her attemptproved to be futile in view of her own admission in the cross-examination that she does not know the addresses and the houseswhere she lived with Charles Nicholas. For better appreciation, I mayrefer relevant portion of her cross-examination, which reads as hereunder:

“My husband worked for about 3 years in Cuddapah. In that threeyears period I never residing with my husband at Cuddapah. In thatthree years period my husband has come on many occasions toMysore and it is not correct to suggest that he came only twice to meat Mysore. It is not true to suggest that during that period myhusband tried to persuade me to come to Cuddapah and live withhim, but I did not go with him. I do not have any record to show thatafter transfer of my husband from Cuddapah I joined with myhusband at Hyderabad to live with him. I do not know the addressesor houses where my husband live, after he shifted from Cuddapah toHyderabad. It is true that after shifting from Cuddapah my husbandhas been residing with the petitioner’s family.”

The contention of the appellant that she resided with Charles Nicholaseither at Hyderabad or at Cuddapah is not established by placing anysufficient material. The evidence brought on record clearly establishedthat Charles Nicholas was always living with his elder brother, who isno other than the respondent herein, and it is the respondent andmembers of his family who stood by his side when he seriously fell illand they attended on him. It is a natural reciprocation for CharlesNicholas to bequeath his properties to his elder brother, who is no other than the respondent herein, ignoring his wife, who has beenaway from the conjugal life for quite a long time. In the given facts andcircumstances, merely because Charles Nicholas excluded his wifefrom inheriting any of his properties, it cannot be a ground to doubt thegenuineness of Ex.A2 Will. Hence, I find the issue in favour of therespondent and against the appellant.

25. In the result, the civil miscellaneous appeal fails and it is herebydismissed with costs.

______________________

B.SESHASAYANA REDDY, J.

Date:30[th] December, 2009.

Note:L.R. copy to be markedB/OCs/mrb

Date:30th December, 2009