TaxTMI 
TaxTMI 
2023 (4) TMI 968
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....O.P became the sole defendant in the Testamentary Original Suit in T.O.S.No.97 of 2015. 3. The facts admitted as between the parties are as hereunder: (1) Late Dharmambal @ Pattamal was the sister of Mr.Ganesan, who is none else than the father of the appellants herein. (2) The respondents in the Original Petition are the daughter of Late Dharmambal @ Pattamal and mother of the appellants respectively. (3) Dharmambal @ Pattamal died on 27.07.2009. 4. The parties have no dispute with regard to relationship amongst themselves. It is the case of the appellants that the property which is the subject matter of the registered Will dated 06.03.2005 was actually purchased only by their father Mr.Ganesan, in the name of his only sister, the testatrix i.e., Dharmambal @ Pattammal. Only acknowledging and recognizing the fact that the testatrix was only holding the property as a benami for her brother, the Will came to be executed by the testatrix. It is the further case of the appellants that even the loan obtained for meeting a portion of the sale consideration was met only by their father Ganesan and the testatrix was not even possessed of sufficient funds t....
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.... examined as P.W.1 and exhibits Exs.P1 to P3 were marked. On the side of the respondent, the respondent examined herself as D.W.1 and Exs.D1 to D3 were marked. The learned Single Judge, on appreciating the oral and documentary evidence available, found that the Will was not proved in the manner known to law and proceeded to answer all the three issues against the appellants. Aggrieved by the findings of the learned Single Judge, the appellants preferred the above intra Court Appeal on the following grounds: a) The Will was duly executed and also registered and had been proved in the manner known to law. b) The learned Single Judge failed to appreciate the evidence on record which clearly established due execution and attestation of the Will. The learned Single Judge erred in suspecting the genuineness of the Will on the ground that it was registered after one and half months from the date of execution. c) The learned Single Judge ought not to have given any credence to the objections raised by the respondent with regard to the registration of the Will between 1 p.m and 2 p.m, which according to the respondent was the lunch hour and that the same ....
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....e counsel for the respondent stating that the affidavit of attesting witness filed by the second appellant along with the O.P was not even marked and the same was fatal to the case of the appellants with regard to proof of due execution of the Will in question. 13. This Court does not find this to be a serious infirmity which would compel the Court to refuse a grant of probate or Letters of Administration, as the case may warrant. Or.25 R.4 of the Original Side Rules, reads as follows: "R.4. Application for probate shall be made by a petition with the Will annexed, accompanied if the Will is not in English by an official translation thereof in English; such an application shall be in Form No.55 or as near thereto as the circumstances of the case may permit and shall be accompanied by: (a) a vakalat or appointment signed by the petitioner,unless he appears in person. (b) an affidavit of one of the attesting witnesses if procurable, in Form No.56. (c) a notice to the Collector in Form No.57 signed by the petitioner or his advocate, and (d) except in the case of applications made by the Administrator-General of Madras the affidavit of as....
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....he Joint Sub Registrar, Chennai South, much later on 19.04.2005. It is seen from the registration endorsements on the reverse of the first page of the Ex.P1-Will that the testatrix had signed the Will before the Sub Registrar and affixed her left thumb impression and her signature was also identified by two persons viz., Kothandaraman and J.Jaya. The Will has been registered as Doc.No.14 of 2005 in Book 3 maintained by the Sub Registrar's Office. The second appellant as P.W.1, filed her proof affidavit. In the said proof of affidavit, paragraphs 5 and 8 assume relevance for the purpose of this case and they are extracted for easy reference: " 5. I submit that the registered Will of the Late Dharmambal @ Pattammal was attested by me and the defendant herein, the daughter of deceased Dharmambal @ Pattammal. 8. I submit that the said Will of Testatrix Tmt. Dharmambal @ Pattamal was attested by myself and the defendant Mrs.U.Saraswathi who is the daughter of the Testatrix." 16. Apart from the filing of the proof affidavit on 13.08.2014, P.W.1 was examined in chief. She has also spoken about the attestation of the Will by herself and the respondent. Even in her ....
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....yathri signed. The signature in my proof affidavit in the written statement and in Ex.P1 are similar and I have already told that it looks like mine" 19. To a question, whether she has filed any documents to prove that Ex.P1, Will was fabricated, her answer was: " I have not filed. I have not signed in Will, my mother also did not execute any Will, she also did not inform me about the alleged Will." 20. The very next question put to her was " Can I take this that because you mother had not told you about the execution of the Will, you say that it is fabricated. Her answer was "yes". 21. D.W.1 has also stated that she never took any steps claiming right in the subject property, though her mother died in the year 2009. Importantly, she has also admitted that her mother and uncle Ganesan were in cordial terms upto 2000. Regarding proof of her mother having the wherewithal to purchase the suit property, D.W.1 has only casually mentioned that she was informed by her mother orally that she purchased the property out of money received from ancestral properties, though she did not have any documents to prove the same. 22. To a question regarding what do you....
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....other in blank papers under coercion and threat and utilised the same for bringing about Ex.P1-Will. It is an admitted case that D.W.1 has attested Ex.P1-Will, though she did not go to the Sub Registrar's office for further registration on a later date when the Will came to be registered. 27. D.W.1, who is an M.Sc graduate and also retired as Assistant General Manager from BSNL, cannot be believed to claim that she also signed on a blank paper. The fact that the Will has been subsequently registered before the Sub Registrar also is a material piece of evidence that has a bearing in this case. Normally, registration of a Will does not lend any extra credence and due execution of the Will has to be necessarily proved whether the Will is registered or not, whenever there is a contest. However, in a case of this nature, where it is specifically alleged that signatures were obtained from the testatrix in blank papers and the same were used to bring about the Will the factum of registration of the Will assumes relevance. 28. Sec.114 of the Indian Evidence Act, 1872 enables the Court to presume existence of any fact which it thinks likely to have happened with regard to the comm....
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....-Will has been duly executed, attested and proved as required under law. The learned Single Judge has found that Ex.P1 has not been duly executed or proved as mandated under law. Learned counsel for the appellants relied on a decision of the Hon'ble Supreme Court in Naresh Charan Das Gupta Vs. Paresh Charan Das Gupta and another, reported in AIR 1955 SC 363, and a judgment of this Court rendered by a learned Single Judge in the case of M.S.Thanigachalam Pillai Vs. Rukmani Ammal and Ors, reported in AIR 1989 Madras 99, to support his arguments with regard to proof of due execution and attestation of Ex.P1-Will, as required under law. 32. In the case before the Hon'ble Supreme Court, the attack on the Will in question was on the ground that it was a result of undue influence and that the Will was not validly attested as required under law. The evidence of the attestors was challenged in the said case on the ground that the attesting witnesses did not mention that they signed the Will in the presence of testator. Therefore, absence of such specific evidence would have to be held fatal and consequently, the Will would have to be held invalid. The Hon'ble Supreme Court, r....
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....her persons who went for registration of the Will. The evidence of P.W.1 is very natural and inspires the confidence of the Court. 35. The counsel for the respondent vehemently contended that the witnesses who have attested the Will have not appeared before the Sub Registrar at the time of registration and this would indicate that all was not well with the execution of the Will. It is common knowledge that the Will is not a document that is required to be compulsorily registered. The mere fact that the Will was executed on a particular date and registered subsequently on a different date would not give rise to a suspicion to invalidate the genuineness of the Will itself. Equally, it is not required that the same witnesses who attested the execution of the Will should alone go for registration of the Will and sign the document before the Sub Registrar concerned as identifying witnesses. Even in a case where a Will is executed and registered on the same day, the law does not require that same set of witnesses who attest the execution of the Will should also be the identifying witnesses before the Sub Registrar concerned at the time of the registration. There is no merit in the con....
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.... 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. Moreover, applying the ratio laid down by the Hon'ble Supreme Court in Naresh Charan's case and this Court's in M.S.Thanigachala Pillai's case, this Court has no hesitation to hold that the evidence of P.W.1, one of the attestors, coupled with the evidence of R.W.1, the other attestor satisfies the requirement of Sec.63 of the Indian Succession Act. 41. This Court has also carefully gone through the cross examination of P.W.1 and there is not even a single suggestion put to her regarding her statements in the proof affidavit with regard to her attesting the Ex.P1-Will as one of the attesting witnesses. No suggestion was also put to P.W.1 that D.W.1 did not attest the Will as the second attesting witness. In short, there is no challenge whatsoever, with regard to the categorical evidence of P.W.1 speaking about the manner in which the Will came to be executed and attested. 42. The learned Single Judge ha....
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.... 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. 46. At the outset it is to be noted that the Benami Transactions Prohibition Act, 1988 came into operation only on 05.09.1988. Sec.3 of the said Act (as it stood before amendment by way of Act 43 of 2016) reads as follows: "3. Prohibition of benami transcations:- (1) No person shall enter into any benami transaction (2) Nothing in sub-section (1) shall apply to- (a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of....
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....Prohibition Act, 1988, would not come into play at all. 49. Moreover, since the Act will not apply to the subject property involved in Ex.P1-Will, it is open to a person to claim that the property was purchased benami. Now applying the tests laid down by the Hon'ble Supreme Court in His Highness Maharaja Pratap Singh's case referred above, it is very evident that the case pleaded by the appellants that the entire consideration for purchase of the subject property went from their father, Ganesan and that their aunt, the testatrix was only a name lender, which fact was never objected to by her during her life time. 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 sa....
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....cious circumstance at all. 54. Coming to the suspicion with regard to registration of the Will after a lapse of approximately one and half months and different witnesses attesting the will at the time of execution and different witnesses identifying the signature of the testatrix before the Sub Registrar, this Court finds no merit in the said contention. The law itself provides for registration of a document that has been executed on an earlier date. 55. Sec. 23 of the Registration Act, 1908 may be usefully referred here. Sec. 23 provides four months time from the date of execution for a document, other than a Will, to be registered. In so far as Wills, the procedure for registration is different and governed by Sec.27 of the Registration Act, 1908. Sec.27 reads thus: "27. Wills may be presented or deposited at any time.-A will may at any time be presented for registration or deposited in manner hereinafter provided." Further, Sec. 40 of the Registration Act, 1908 reads as under: " 40. Persons entitled to present wills and authorities to adopt. (1) The testator, or after his death any person claiming as executor or otherwise under a will, may pre....
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....ous circumstances, wholly misplaced. It is a case, where the Will was executed on 06.03.2005 and registered only on 19.04.2005. Suspicion, if any should be surrounding the execution of the Will on 06.03.2005 only and not regarding something that happened much later. Such contentions put forth by a Caveator and citing them as suspicious circumstances only would go to show that the Caveator is attempting to make mountains of mole hills, losing track of the germane issues that should be pleaded and proved or atleast required to call upon the propounder to dispel. "Suspicious circumstances" is not defined under the Indian Succession Act, 1925. There can be no straight jacket formula to say what are all suspicious circumstances. What may be a suspicious circumstance in one given set of facts may not be a suspicious circumstance in another set of facts. Court have to be very cautious in dealing with the doubts cast by the Caveator on due execution of the Will. Courts must also remember that invariably heirs or representatives who are not beneficiaries under the Will, being disgruntled of the said fact, are the persons who choose to attack the Will, throwing all kind of possible suspicion....
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....mitation Act and it was sufficient if the delay was properly explained. In the instant case, as already discussed the appellants have clearly mentioned that non availability of the original Will was the reason for delay in filing the application seeking Letters of Administration. This pleading has gone uncontroverted in cross examination. This Court, therefore, does not find any good cause or justifiable reason to hold that the petition is belated. One further circumstance that would also go against the respondent is that if really the Will had been fabricated as contended by respondent, the appellants would not have slept over the matter and would have hurried to obtain orders in their favour. Therefore, on any count whatsoever, this Court is unable to find that the delay occasioned in approaching the Court, seeking Letters of Administration cannot be held to be either a suspicious circumstances or for that matter a circumstance to invalidate Ex.P1-Will. 61. Concluding, 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....