PREMAVATHI Vs. SUNDARARAJAN

JUDGEMENT

(1.) O.P. No.226 of 1985 filed for issuance of letters of administration of the Will of the testatrix - Kakkammal has been converted into Testamentary Original Suit and numbered as TOS No.11 of 1987, as the husband of the testatrix questioned the genuineness, execution and attestation of the will. The will has been marked as Ex.P.1. The plaintiff Boopathy Ammal since deceased, who was the daughter of the testatrix, was the sole legatee under the will. Plaintiffs 2 to 5 are daughters of the deceased Boopathy Ammal, the legatee under the will. The 5th plaintiff Mallika - one of the daughters of the legattee got married to Balram Reddy, one of the two brothers of Boopathy Ammal, but issueless. The other brother was Booloka Reddy. Both the brothers predeceased Boopathy Ammal. Defendants 2 to 4 are the legal representatives of Boologa Reddy. The first defendant was the husband of the testatrix, who died pending suit. In the suit, Boopathy Ammal was examined on commission as P.W.1. P.W.2 is one of the five attestors of the Will. P.W.3 is the scribe. One Jagannathan, the Village Nattamai was examined as D.W.1 on the side of the defendants. The learned single Judge, after taking into consideration the evidence made available - both oral and documentary, dismissed the testamentary suit on the premise that the testatrix Kakkammal has not affixed her thumb impression on Ex.P.1 in a sound and disposing state of mind execution and attestation of the will have not been satisfactorily proved and the sole beneficiary of the will had taken a prominent role in the preparation, execution and attestation of the will and there were so many suspicious circumstances surrounding the execution and attestation of the document. The correctness of the same is canvassed in this appeal.

(2.) THE judgment of the learned single Judge is questioned on the ground that none of the defendants entered into the box and gave evidence. THE mere fact that the testatrix died after four days after the execution of the will, per se, cannot be a reason to conclude that she lost her consciousness and she was mentally imbalanced during the relevant time. THE very purpose of execution of the will is to change the line of succession, which has been magnified unduly without considering the cogent evidence given for bringing in such a change in the line of succession. THE natural evidence of the parties, who deposed on behalf of the plaintiffs clearly exhibit the intention of the testatrix. Merely because the witnesses were brought from outside the village, it cannot be a reason to eschew or find fault with the evidence of the witnesses. One of the attesting witnesses has been examined and that is enough in law to prove the execution of the will. In support of the contention, several judgment were relied on.

(3.) IN the case of present nature, the line of judgments of the Apex Court say in one voice that the onus of proving the Will is on the propounder. IN the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court for the court to accept the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. There must be real, germane and valid suspicious features and not fantasy of doubting mind. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator-s mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator-s mind was not free. IN such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence.