JUDGMENT D.S.R. Varma, J.
1. Heard both sides.
2. C.M.A. No. 2770 of 1999 and C.M.A. No. 2771 of 1999 are directed against the common order and decrees, dated 30-7-1999, in O.P. No. 134 of 1996 and O.P. No. 140 of 1996, respectively, passed by the I Additional Chief Judge, City Civil Court, Secunderabad.
3. O.P. No. 11 of 1999 is filed before this Court by the petitioner in O.P. No. 134 of 1996 against the appellant in C.M.A. Nos. 2770 and 2771 of 1999.
4. The respondent in O.P. No. 134 of 1996 and the petitioner in O.P. No. 140 of 1996 is the appellant herein, the petitioner in O.P. No. 134 of 1996 and Respondent No. 1 in O.P. No. 140 of 1996 is the respondent herein, while the petitioner and respondent in O.P. No. 11 of 1999 are the appellant and respondent, respectively, in the said civil miscellaneous appeals.
5. O.P. No. 134 of 1996 was filed under Section 278 of the Indian Succession Act, 1925 (for brevity "the Act"), O.P No. 140 of 1996 was filed under Sections 213 and 276 of the Act while O.P. No. 11 of 1999 is filed under Section 301 of the Act.
6. For the sake of convenience, in this common judgment, the petitioner in O.P. No. 134 of 1996 and the petitioner in O.P. No. 140 of 1996 will be referred to as "the petitioner" and "the respondent", respectively.
7. We may usefully notice the prayers made in O.P. Nos. 134 of 1996 and 140 of 1996 filed before the Court below, as well as the prayer made in O.P. No. 11 of 1999 filed before this Court, which run thus:
O.P. No. 134 of 1996:
(i) to grant letters of administration to petitioner in respect of the estate of the deceased, Mrs. Mani Ardeshir Hormasji;
(ii) to grant costs of the petition; and
(iii) to grant such other relief or reliefs as this Hon'ble Court deems fit and proper under the circumstances of the case.
O.P. No. 140 of 1996:
Petitioner, therefore, prays that this Hon'ble Court may be pleased to grant probate of the "Will" dated 23-3-1995 executed by the Testatrix to the petitioner herein as he is the named Executor in the "Will" and pass such other and further order or orders as this Hon'ble Court deem fit and proper in the circumstances of the case.
O.P. No. 11 of 1999:
(a) removing the respondent whose name is mentioned as Executor under the fabricated "Will" dated 23-3-1995;
(b) appoint the petitioner as the Administrator of the estate of late Mrs. Mani A. Hormasji;
(c) pass any other order or orders as this Hon'ble Court deems fit and proper in the circumstances of the case, and
(d) allow the costs.
8. The averments, in brief, in O.P. No. 134 of 1996 are that the petitioner is the only child of her stepfather, late Ardeshir Hormasji, who died on 6-6-1985 leaving his widow by name Mrs. Mani A. Hormasji, i.e., her mother, and herself. Her parents were living in a house known as 'Sun Shine' bearing Door No. 1-10-44/1, Begumpet, Hyderabad. Her stepfather executed a 'Will', dated 10-4-1985, bequeathing the said house in favour of her mother. She has two sons by name Kerman R. Katrak and Kershasp R. Katrak. Her mother owned several Shares and Debentures, NSS certificates, Public Provident Fund amount, Fixed Deposits in Savings Bank Accounts, Bank Lockers etc., in addition to money-lending business and that she earned lot of money by making investment in reputed companies by way of shares.
9. The respondent was known to her mother as a physician as well as a friend and he used to frequently visit her mother and managed to gain her confidence.
10. On 8-2-1996, her mother, uncle by name N.J. Dadabhai, his son Khushru N. Mistry and the respondent were going towards Puttaparthi via Kurnool in a car bearing No. AP-9H-3157 belonging to her mother. When the car reached Dondapalli Village near Kurnool, at 10-30 a.m., the driver of the car lost control and dashed the car against a tree. In that accident, her mother died and the inmates of the car sustained serious injuries except the respondent. On that day, at 6.30 p.m., the respondent informed the petitioner that her mother died and her body was lying at Kurnool Medical College. Immediately the petitioner and her husband left for Kurnool and brought the dead body of her mother to Hyderabad on 9-2-1996 and cremated the same.
11. It is the case of the petitioner that after the accident, the respondent, having removed the gold ornaments from the body of her deceased mother, which was seen by Khushru Mistry, left the deceased as well as the injured persons and returned to Hyderabad, arrived at her mother's house in the evening of 8-2-1996 itself, entered the same without informing the petitioner and with the keys obtained from her mother he opened the bedroom and office room and collected some material papers. Around 6.30 p.m., the respondent came to her house along with one V. Sriramamurthy, Accountant of her deceased mother, in a taxi and informed about the death of her mother and also informed the petitioner that he went to the house of her deceased mother and locked the office room for safety reasons. Again, when the petitioner and her husband met the respondent, at 8.00 p.m., he informed them that he had keys of the office in his custody.
12. On 9-2-1996 when all the relatives gathered at the house of the deceased mother of the petitioner, since the keys of bedroom and drawers etc., could not be found, they contacted the respondent, who sent his Advocate by name Mr. Madhava Rao with keys to open the bedroom to enable them to remove the beds etc., and then he locked the premises again. Obviously, the respondent had taken keys of the house from the bag of the deceased mother of the petitioner. The petitioner averred that she was informed by her mother when she was alive that the respondent borrowed a sum of Rs. 2,00,000/- from her and to the knowledge of the petitioner, that amount was not returned by the respondent.
13. On 10-2-1996 Mr. Madhava Rao, Advocate of the respondent, intimated the petitioner that her deceased mother (for brevity "the testatrix") had executed a 'Will' during her lifetime and the same had been in his custody and she was asked to go to the office of Mr. Madhava Rao, Advocate, at Flat No. 22, Sukhmani Apartments, S.P. Road, Secunderabad. On 11-2-1996, at about 10-00 a.m., when the petitioner, her husband and her relatives visited the office of the said Advocate, the 'Will' was opened, read over and a Xerox copy of the 'Will' was furnished to the petitioner. The original 'Will' was not shown to them. The petitioner was also informed that the respondent was appointed as 'Executor' under the 'Will' and he would discharge the obligations under the 'Will'. Apart from being an Executor, the respondent was reported to be a beneficiary under the 'Will'. Under the said 'Will', the respondent was reportedly given the house 'Sunshine' along with furniture and other fixtures with life interest and to give the same to charity later. The petitioner was also given meager benefits under the 'Will' i.e., a sum of Rs. 5,00,0007- in the form of shares, but no details of such shares were furnished. Some notices were exchanged between the petitioner and the respondent with regard to the details of the estate etc. The petitioner asked the respondent to take probate of the 'Will' as the 'Will' also provided for the same.
14. On 25-3-1996, the respondent sent a letter to the beneficiaries under the 'Will', including the petitioner, to attend a meeting scheduled to be held at 'Sunshine' on 14-4-1996 at 10.30 a.m., for the purpose of distribution of the assets. The petitioner through her letter, dated 5-4-1996, disputed the claim of the respondent. However, she attended the meeting on 14-4-1996, which ended in a disaster, as no discussions were allowed to be held on the ground that the respondent was the 'executor'. The respondent also declared that he would not take probate of the 'Will'. The respondent also addressed a letter, dated 19-4-1996, stating that he did not take probate of the 'Will' and asked the petitioner to come and collect her share. The petitioner addressed letters to various Companies and debtors of the testatrix not to deal with the respondent etc.
15. It is also the case of the petitioner that the testatrix held huge movable and immovable properties, the details of which are not available with her; that as long as the 'Will' is not proved and probated, it has to be assumed that the testatrix died intestate; that she is the only legal heir and that she is entitled to all the properties belonging to the testatrix. As the respondent is laying a false claim in respect of the estate of the testatrix, it is absolutely necessary to permit her to administer the estate of the testatrix.
16. The petitioner has valued the property at Rs. 3,87,78,3637- and prayed for 'Letters of Administration' in respect of the estate of her deceased mother i.e., the testatrix.
17. In his counter, the respondent contended , inter alia, that he had no occasion to manage and never managed, to gain confidence of the testatrix and that the testatrix, who was an educated and shrewd woman, reposed considerable confidence in the respondent throughout her life.
18. The respondent denied the allegations of the petitioner that he entered the house 'Sunshine' prior to informing the petitioner about the death of the testatrix and opened the bedroom, office room and collected some material papers and he was seen by the maid-servant there; that he drove away his car from 'Sunshine' on that date personally; that he had removed gold ornaments from the body of the testatrix and collected the keys after the death of the testatrix; that he involved Mr. Madhava Rao, Advocate; that he had abused the confidence reposed in him by the testatrix and that he has to pay a sum of Rs. 2,00,000/- to the testatrix.
19. The respondent admits that the testatrix had executed the 'Will' during her lifetime and the original 'Will' is in his custody; that it was kept with his Advocate Mr. Madhava Rao for safe custody; that during her lifetime, the testatrix had given considerable properties to the petitioner to keep her in luxury and comforts and that the petitioner has been residing separately along with her husband without any right or claim over the properties held by the testatrix.
20. It is the further case of the respondent that the testatrix had executed the 'Will' on 23-3-1995 at Hyderabad in the presence of Dr. P. Navaneeth Sagar Reddy and Dr. P. Gopala Krishna, Assistant Professors of A.P. Chest Hospital and also Dr. Sudhakar Reddy, Professor of Cardiology, who certified about her fitness at the time of execution of the 'Will'. He denied the allegation that the respondent avoided to get the 'Will' probated and, in fact, filed O.P. No. 140 of 1996 for that purpose. The mere fact that the respondent is also a beneficiary under the 'Will' is not a suspicious circumstance, as the execution of the 'Will' by the testatrix was admitted, and the petitioner went on requesting the respondent to get it probated. It is contended by the respondent that since the 'Will' is admitted to be a genuine and last 'Will' of the testatrix, the question of permitting the petitioner to have the relief prayed for in the said petition does not arise; that in the meeting held on 14^-1996, the petitioner made several suggestions and she cannot now contend that the 'Will' is not genuine; that the petitioner had no right, other than as a beneficiary under the 'Will'; that the petitioner cannot have any other right as legal heir to interfere with the estate of the testatrix as the entire estate is covered by testamentary dispossession and that the properties, including the house and shares etc., are incorrectly valued. Finally, he contended that the petitioner is not entitled for 'Letters of Administration'.
21. On the basis of the above pleadings, the Court below framed the following issues for trial in O.P. No. 134 of 1996:
1. Whether the petitioner's mother late Smt. Mani A. Hormusjee bequeathed her properties under the "Will"?
2. Whether the petitioner is entitled for Letters of Administration in respect of the estate of her mother late Smt. Mani A. Horrnusjeel
3. To what relief ?
22. Since the effect and essence of contentions of both parties in both the O.P. Nos. 134 of 1996 and 140 of 1996 are identical, being in the nature of case and counter-case, and as the basic facts and averments made by each other are almost same, the entire averments in O.P. No. 134 of 1996 need not be referred to once again in O.P. No. 140 of 1996 and the relevant averments will only be referred to in O.P. No. 140 of 1996.
23. The relevant and material averments in O.P. No. 140 of 1996 are that the 'Will' dated 23-3-1995, was executed by the testatrix, who is a Hindu, in her own handwriting, in a sound and disposing state of mind and it was her last 'Will' and testament; that on coming to know about the execution of the 'Will', he got it opened and contents thereof were read over in the presence of the respondents therein and their near relatives on 11-2-1996; that since he was appointed as 'executor' of the 'Will', he accepted and assumed the status of 'Executor'; and, as such, he became 'legal representative' to represent the estate of the testatrix.
24. The relevant averments made by the petitioner in her counter in O.P. No. 140 of 1996 are - that the fact that the executor was a medical practitioner and the 'Will' was alleged to have been attested by two persons, who were also from the medical profession, casts suspicion about the factum of validity and genuineness of the 'Will'; that the claim of the executor that he was appointed as "Executor' and also a beneficiary under the 'Will' would show that the 'Will' was not genuine and was brought up at his instance; that the testatrix did not execute the 'Will', dated 23-3-1995, and even if she executed the 'Will', the same must have been at the instance and under the influence of the executor; that the testatrix was a Parsi by faith and there was no reason why she should execute a 'Will' bequeathing some properties to the petitioner and also appoint the respondent as an executor; that it is strange that the testatrix should have ignored the interest of her only daughter and her grandsons without stating any reason for excluding them in the 'Will'; that even if the 'Will' is to be treated as genuine, the respondent, who claimed as 'Executor' of the 'Will', has not followed the directions given by the testatrix and started distribution of the estate as he pleased without reference to the beneficiaries under the 'Will' and even before obtaining probate, his actions are contrary to the interest of the beneficiaries under the 'Will' and that the action of the executor in dealing with the estate without obtaining Probate, in spite of specific condition, is contrary to the directions under the 'Will' and against Law.
25. The petitioner denied the allegations of the respondent that the value of the estate that is likely to go into the hands of the executor is only Rs. 2,42,86,703/-, inasmuch as the value of the house is more than one crore rupees, and the particulars furnished in petition 'A' Schedule; that the 'Will' was that of a Hindu and it was executed in a sound and disposing state of mind as her last 'Will' and testament and that the 'Will' was duly executed and attested by two witnesses and the testatrix got herself medically examined at the time of execution of the 'Will'. It is finally contended by the petitioner that the executor cannot claim himself as 'Executor' of the 'Will'.
26. On the basis of the above pleadings, the Court below framed the following issues for trial in O.P. 140 of 1996:
1. Whether the 'Will' dated 23-3-1995 executed by Mrs. Mani A. Hormusjee in fit, physical and mental state?
2. Whether the petitioner is entitled to seek probate of the 'Will' and what is the impact of Clauses 19 and 20 of the alleged 'Will' on the bequest made by the Testator?
3. Whether the petitioner is entitled to be an executor under the 'Will'?
4. Now the value of the share bequeathed to Respondent No. l under Clause 9 of the 'Will' to be ascertained, to allot her Rs. 5.00 lakhs worth of shares?
5. To what relief?
27. Evidence was led in O.P. No. 140 of 1996 and the same had been treated as the evidence in both the O.Ps.
28. To substantiate their contentions, the petitioner in O.P. No. 140 of 1996 examined himself as P.W.1 and four (4) others as P.Ws.2 to 5 and got marked Exs.A-1 to A-60 on his behalf. On behalf of petitioner in O.P. No. 134 of 1996, the petitioner examined herself as R.W.1 and three (3) others as R.Ws.2 to 4 and got marked Exs.B-1 to B-7.
29. The averments, in brief, in O.P. No. 11 of 1999, which is filed before this Court, under Section 301 of the Act, are thus:
The petitioner along with her relatives performed the funeral of her mother and the respondent did not participate in the same in any manner. However, when the petitioner and others attended the meeting, the respondent was not present. The respondent being the executor of the alleged 'Will' instead of disclosing full particulars of various assets, both movable and immovable, including the shares in various companies held by the testatrix, started behaving in a rude manner and asserted that the entire estate of the testatrix was vested in him from the moment of her death i.e., 8-2-1996, and that all the persons who were present in the meeting should heed his advice and collect whatever amount to be given by him under the alleged 'Will'. When the petitioner had entertained suspicion and insisted the respondent to obtain probate of the alleged 'Will', he refused to do so stating that probate was not necessary. The crude attempts on the part of the respondent in fabricating the alleged 'Will' are clear from the manner in which the testatrix was alleged to have written the same and got fitness certificate from a Doctor who was working under the respondent previously and the attestors of the alleged 'Will' having served under him previously. In O.P. No. 140 of 1996, the respondent gave evidence as P.W.I stating that he was not aware of the existence of the 'Will' till the date of its opening by his Advocate and again he stated that the 'Will' was with him. There is no evidence as to how the 'Will' went to the hands of the Advocate for the respondent and who wrote the alleged 'Will'. The respondent had stated in his evidence that he had a duplicate key not only of the house but also of the rooms of the testatrix. The respondent was successful in removing the documents, valuables and the jewels in order to enrich himself abusing his position that he was a consultant physician of the testatrix.
The respondent started collecting monies from the debtors of the testatrix and operating the accounts held by the testatrix in various Banks, some of which are in the joint name of the testatrix and the petitioner. The testatrix had invested money in innumerable companies in the form of Shares and Debentures and also had accounts in the Banks and all the papers were taken away by the respondent from the house of the testatrix. The petitioner could not even find out how many shares were held by the testatrix and the names of companies and their face value. On account of suspicion and highhanded acts of respondent, the petitioner had addressed letters to some of the companies whose identity she could gather and also some of the debtors of the testatrix who addressed letters to the respondent and marking copies of same to the petitioner. Irrespective of the legal requirement of the 'Will' being probated, the respondent was not willing to abide by the obligations cast upon him under the 'Will' viz., to obtain probate and to meet all the expenses like funeral, taxes etc., and discharge the debts of the testatrix to anyone or the Banks by way of overdraft etc. Though the accident had occurred at 10-30 a.m., on 8-2-1996, the petitioner has got information at 5-00 p.m., about the accident and the death of the testatrix from the wife of Mr. N.J. Dadabhai, who stays at Bangalore and also received information over telephone by the cousin of the petitioner from Kurnool. The I Additional Chief Judge, City Civil Court, Secunderabad, through common judgment and decrees, dated 30-7-1999, while dismissing O.P. No. 140 of 1996 filed by the executor for probate and decreeing O.P. No. 134 of 1996 filed by the petitioner for letters of administration, held that the alleged 'Will' is not genuine, not executed by the testatrix and that the testatrix did not bequeath her properties under the said 'Will'. Aggrieved by the same, the respondent filed C.M.A. Nos. 2770 of 1999 and 2771 of 1999 before this Court and that there is an interim order that neither of the parties shall deal with the properties in any manner.
30. As per the contents of the said 'Will', the petitioner has to get only a sum of Rs. 5,00,000/- in the shares, while the respondent gets not only the house worth about rupees two crores but also entire furniture worth some lakhs of rupees. As per the said 'Will', life interest was created in the said property in his favour with a right to create a Trust to which the said property would devolve after his death. Though the testatrix was associated with many Trusts and social and philanthropic organizations, none of the Trusts or organizations find place in the said 'Will'. In other words, under the said 'Will', the respondent could create any Trust of his choice by which he could retain the property for himself or for his near and dear. The respondent got mutated the house in his name as per the admission in his evidence and such conduct of the respondent establishes his intention to gain the property of the testatrix wrongfully by using the name of 'charity' as a camouflage and causing wrongful loss to the petitioner. The said act of the respondent is nothing but criminal misappropriation. That apart, the respondent gets the Maruti Esteem Car belonging to the deceased in addition to 50 per cent of shares, which should go to the petitioner. It is also on record that some valuable shares, the value of which could not be ascertained till today, have been taken away by two of close associates of the respondent by name Mrs. and Mr. Raju. Further, the shares worth Rs. 2,00,000/- are also admitted to have been given to one Mr. Sri Ram Murthy. It is also on record that the outhouse of the deceased was occupied by the relatives of the respondent without consent of anybody.
31. In addition to two schedules annexed to the said O.P. No. 140 of 1996, another schedule was given in the shape of a statement marked as Ex.A-43 wherein different values of shares in 175 companies have been shown, the valuation of which does not tally, and this device had been adopted by the respondent mischievously to cause wrongful loss to the petitioner and derive wrongful gain for himself. In fact, it is on record that the valuation of the house and other valuations shown by him are abysmally low. Further, the expenditure reported to have been incurred by the respondent towards the alleged funeral and other expenses following the death of the testatrix were boosted up. In fact, the I Additional Chief Judge in his judgment opined that the respondent had debited a sum of Rs. 19,000/- and odd towards the alleged funeral expenses without performing any such ceremonies.
32. Further, it is on record that some of the valuable gold ornaments held and worn by the testatrix were missing and not traceable. Mr. Srirama Murthy, who was examined on behalf of the respondent as P.W.5, tried to escape his liability stating that he has surrendered some valuables and gold to the petitioner. Similarly, the respondent also started operating Bank accounts and had withdrawn huge amounts after the death of the testatrix and curiously the Banks have also obliged him. When the petitioner had requested the Branch Managers of State Bank of Hyderabad and Andhra Bank to furnish information, by producing a copy of judgment in O.P. No. 140 of 1996, they refused to do so. Though there is a Bank account in the name of the testatrix in Andhra Bank, Prakash Nagar Branch, Secunderabad, instead of depositing the collections received from the third parties, the respondent had opened fresh account in the said Bank in his name and is depositing the same. Thus the respondent is indulging in unlawful activities of grabbing movable and immovable properties of the testatrix without any legal right and to the detriment of the interest of the petitioner.
33. In view of the serious acts of omissions and commissions on the part of the respondent and after dismissal of O.P. No. 140 of 1996, filed for probate, on the ground that he 'Will' relied upon by him was fabricated, he is not entitled to continue as an executor of the estate of the testatrix. The respondent challenged the common judgment and decrees in O.P. Nos. 134 and 140 of 1996, dated 30-7-1999, by way of present appeals. Along with the said appeals, the respondent also filed applications C.M.P. Nos. 21895 of 1999 and 21896 of 1999 seeking interim suspension of operation of the common judgment and decrees in the said O.Ps. By a common order, dated 29-10-1999, a Division Bench of this Court refused to grant the said reliefs and directed the parties not to deal with the properties covered by the said 'Will' in any manner till the disposal of the said appeals.
34. Since the petitioner is the daughter of the testatrix, no prejudice would be caused if she is appointed to lookafter and manage the estate of the testatrix and she undertakes that she will not meddle with the properties in question till the disposal of O.P. No. 11 of 1999.
35. The learned Counsel appearing for the respondent submits that neither the petitioner nor the other beneficiaries under Ex.A-1 'Will' have never raised any objection about the truth and validity of the 'Will' when it was admittedly shown and Xerox copies of it were furnished to them in the meeting held on 10-2-1996 and also in the meeting held on 14-4-1996 for distribution of the assets. He further submits that the petitioner was demanding the respondent to obtain probate of 'Will' only to save them from obtaining Succession Certificate for transfer of shares etc. Finally, he submits that there was nothing suspicious or unnatural about the bequest to the respondent under Ex.A-1 'Will'.
36. The learned Counsel appearing for the petitioner submits that since the Court below had given cogent and convincing reasons in the impugned common judgment in O.P. Nos. 134 of 1996 and 140 of 1996, they do not call for interference by this Court and hence the present civil miscellaneous appeals are liable to be dismissed and consequently O.P. No. 11 of 1999 is liable to be allowed.
37. In view of the rival contentions, the points that fall for consideration before this Court are:
1. Whether Ex.A-1 'Will' is true and valid?
2. To what relief ?
38. In Re Point No. 1: In this regard, it is well settled proposition that the burden of proof lies on such person who propounds the 'Will'. Therefore, in the background of the relative averments, we feel it expedient to deal with the evidence of the respondent and also the evidence of other witnesses examined on his behalf, which has to be thoroughly scrutinized with due care and caution.
39. Dr. Venkaiah Chowdary, the respondent, who examined himself as P.W.I, stated that he was a consultant Cardiologist; that the deceased testatrix and her husband who were cardiac patients were his patients since 1980; that the testatrix was an intelligent woman; that she died on 8-2-1996 in a car accident near Kurnool; that on 23-3-1995 the testatrix executed a 'Will', by which he was appointed as an executor, and that was her last 'Will'; that the same was marked as Ex.A-1; that as per Ex.A-1, he has to manage the properties and distribute to various persons and that Respondent Nos. 1 to 3 were also given properties under the said 'Will'. He further stated that one Mr. D. Madhava Rao, who was the Advocate of the testatrix, gave him Ex.A-1.
40. Interestingly, P.W.I further stated that in the year 1995, the testatrix gave him a sealed cover with a request to open it only after her death; that after her death in the accident, he gave that cover to her Advocate, Sri D. Madhava Rao, to open it; that when it was opened, Ex.A-2, letter, was found in that cover; that Ex.A-2 was with a request that her last rites were to be performed as per the Hindu customs and that at the time of her death, she was living in her own house at Begumpet.
41. In this regard, it appears that the respondent was the personal Doctor of the testatrix and had enormous intimacy with her family not only as a Doctor but also a good friend. But, the above statement arouses any amount of inquisitiveness.
42. From the said statement, the situation is no that easy to understand. Further, the said statement of P.W.I is two-fold; firstly - the execution of alleged 'Will' by the testatrix and secondly - giving a cover to the respondent with instructions not to open the same, and the contents of the same are to be read only after her death.
43. If a very valuable document, dealing with further more valuable property, was executed, such a document would not have, in normal course, been kept in the custody of the beneficiary himself or herself.
44. As already noticed, P.W.I got a major share in the property of the testatrix by virtue of Ex.A-1 'Will'. Even assuming that the 'Will' was executed and handed over to the respondent, keeping in a sealed cover and in the custody of the lion share holder viz., the respondent, with instructions not to open the same till the death of the testatrix, creates any amount of doubt about the conduct of the testatrix and the statement made by P.W.I.
45. Both these events i.e., execution of the 'Will' and keeping it in a sealed cover and handing over the same to the lion share holder viz., the respondent himself, are rather two different circumstances, which cannot, in our considered view, go together, escaping the doubtful eye and mind of many, though not all.
46. Further, no specific day or date or time was furnished as to when the testatrix had given that sealed cover to P.W.I in the year 1995 with instructions not to open the same till her death. In strict obedience to the said instructions of the testatrix, according to P.W.I, he kept that cover with him from 1995 till the death of the testatrix and, curiously, he gave the said cover to Mr. Madhava Rao, Advocate. When P.W.I could obey the instructions of the testatrix till her death by keeping the cover with him, he should also have obeyed the further instructions of the testatrix to open the same by himself after her death. Instead, he handed over the cover to the Advocate of the testatrix. There is no reason as to why the said cover, which contains Ex.A-1 'Will' along with Ex.A-2 letter, was handed over by P.W.I to the said Advocate after the death of the testatrix, instead of opening the same by himself. This points out and stares at P.W.I with doubtful circumstance that he knew something about the contents of that cover, including Exs.A-1 'Will' and A-2 letter. This conduct on the part of P.W.I clearly indicates his obvious intention to give an impression to others that he had no role or connection with the said cover. If really that was the actual intention of P.W.I, he could and should have immediately handed over that cover, which contains Exs.A-1 'Will' and A-2 letter, to the said Advocate in order to keep the same in safe custody. But, he did not choose to do so. Further, for more than a year, P.W.I kept the said cover in his custody and soon after the death of the testatrix, he handed over it to the said Advocate.
47. Another doubt, in normal course, that would arise is - was it the same cover alleged to have been given by the testatrix to P.W.I to be opened after her death, given to the said Madhava Rao, Advocate, after the death of the testatrix?
48. But, there is possibility of either in the present circumstances of the case. Furthermore, the said Madhava Rao, Advocate, was not examined, for the reasons best known to P.W.I.
49. P.W.I further stated during the course of his evidence that "when the cover was opened, after the death of the testatrix by the said Advocate, Ex.A-2 letter was found in that cover."
50. In this connection, it is necessary to refer to the cross-examination of P.W.I, to the extent relevant, wherein he further goes on saying:
On 11-2-1996 Ex.A-1 'Will' was read over to some of the persons that came on intimation at the office of Sri Madhava Rao, Advocate. On that day I have furnished copies of Ex.A-1 'Will' i.e., Photostat copies to all the persons that attended there. I was not present when the 'Will' was read over to those persons by Sri Madhava Rao. At that time Mr. Madhava Rao furnished the copies and not me. As I was not present in that meeting on 11-2-1996 I do not know what transpired at that time. It is true only on seeing Ex.A-1 I came to know that the attestors and persons that certified about the fitness were all Doctors.
51. The above statements of P.W.I are ex facie self-contradictory, inasmuch as on the one hand he stated that Ex.A-1 'Will' was read over at the office of Mr. Madhava Rao, Advocate, to all the persons who attended the meeting and that P.W.I himself furnished Photostat copies of Ex.A-1 to all those persons and on the other hand he stated that he was not present when the 'Will' was read over to those persons by the said Advocate.
52. It is rather incompatible as to how these two statements can go together. According to P.W.I himself, Ex.A-1 'Will' was read over to the persons who attended the meeting at the office of Madhava Rao, Advocate, and it was he who furnished Photostat copies of Ex.A-1 'Will' to all of them. The further vital contradiction is that he was not present when Ex.A-1 'Will' was read over to others by the said Madhava Rao, Advocate. Added to this, he further stated that copies of Ex.A-1 'Will' were furnished to others excepting himself.
53. The above self-contradictory statements on the part of P.W.I, in our view, are very vital and fatal as well to the very theory of P.W. 1 himself.
54. Further, from the evidence of R.W.1 (the petitioner in O.P. No. 134 of 1996) it is clear that her deceased mother (testatrix) died on 8-2-1996 and her funeral had taken place at about 11-00 p.m., on 9-2-1996. She further stated that P.W.I did not attend the funeral of the testatrix. But, P.W.I did not state at least as to when the funeral of the testatrix had taken place, let alone about his attendance thereat.
55. As already noticed, the respondent (P.W.I) had been the family Doctor and friend of the testatrix and her husband for more than two (2) decades. Further, P.W.I had access, admittedly, even to the bedroom of the testatrix.
56. The other important excerpts from the evidence of P.W.I, in verbatim, are:
On 11-2-1996 morning for the first time I came to know about the existence of Ex.A-1. ...It is true that I am a beneficiary also under the 'Will' Ex.A-1. As I thought it was not necessary, I did not mention that I am a beneficiary also under the 'Will'.
57. From the above, it is clear that only on 11-2-1996, P.W.I came to know about the existence of Ex.A-1 'Will'; perhaps, at the residence of Mr. Madhava Rao, Advocate, and, most importantly, P.W.I was aware that he was a beneficiary also under the 'Will'. That is the reason why, according to P.W.I, he did not mention that he was a beneficiary also under the 'Will', as he thought it not necessary.
58. Actually, there was no need for P.W.I to say in the above manner and he could have stopped by saying that he came to know about the existence of Ex.A-1 'Will' only on 11-2-1996.
59. But, as already discussed, there was absolutely no need for the respondent (P.W.I) to give the sealed cover to Mr. Madhava Rao, Advocate, only after the death of the testatrix.
60. P.W.I further stated that he does not remember whether the testatrix was having any gold ornaments on her person at the time of accident and he did not remove anything from the person of the testatrix after the accident.
61. In his examination-in-chief, P.W.I admitted that the duplicate keys of the bedroom of the testatrix were with him, as they were given by the testatrix long prior to her death. The important aspect, without going much into the details of the method and manner in which the accident took place, to be noted, is that P.W.I had stated that in the accident the testatrix died. Further, it could be seen from his evidence that the injured and the deceased testatrix were shifted to Government Hospital, Kurnool. The other close relatives, including the daughter and grand children of the testatrix, were not informed about the death of the testatrix in an accident and the explanation offered by P.W.I in his cross-examination, in verbatim, was "I never thought that it is necessary to inform R-l telephonically about the death of her mother; that I left Kurnool to Hyderabad at about 1-30 noon on the same day; that I have not informed the police about the accident in the hospital, as the causality is supposed to inform the police; that the police registered a case about the accident; that inquest as well as scene of offence, panchanama was conducted; that I do not know who has shown the place of accident to the police; that by about 5-30 p.m., I reached Hyderabad by car and that by about 6-00 p.m., I informed R-l about the accident and straight I went to the house of the testatrix, collected the car from there and went and informed R-l."
62. There appears to be some confusion in recording the evidence as to whether P.W.I went straight from Kurnool to the house of the testatrix at Hyderabad and from there to the house of the daughter of the testatrix (R.W.1) to inform about the accident and the death of the testatrix or he went straight from Kurnool to the house of the daughter of the testatrix (R.W.1) to inform about the accident and the death of the testatrix and from there to the house of the testatrix to collect his car.
63. In his evidence, P.W.I himself stated earlier that he straight left Kurnool to Hyderabad in order to collect his car from the house of the testatrix and from there he went to the house of R.W.1 and informed about the accident and the death of the testatrix in the said accident.
64. P.W.I further stated that "R.Ws.2 and 3 who are the grand children of the testatrix were in good terms with the testatrix but the testatrix had grudge against them, as they were not visiting her regularly." In our view, there is absolutely no need for P.W.I to make such a statement, particularly about the grand children of the testatrix and the testatrix.
65. From the above events and statements, as narrated and stated by the respondent (P.W.I), there are any number of discrepancies, self-contradictions, improbabilities in the evidence of P.W.I, who was having very close affinity with the testatrix, including access to her bedroom even in her absence and, more so, he being the key person and a major beneficiary under Ex.A-1 'Will'. But, P.W.I did not even care to inform about the accident and the death of the testatrix in the said accident to her daughter (R.W.1) or her grant children (R-2 and R-3 in O.P. No. 140 of 1996). On the contrary, P.W.I straightaway went to the house of the testatrix at Hyderabad, opened the doors of the house and took away the car, as stated by him, from there.
66. It is to be further seen that P.W.I, being a party to the team of persons who were proceeding to Kurnool in a car and when the car met with an accident and when he was also a person who accompanied the deceased testatrix and the other injured persons to the Government Hospital, Kurnool, could not have slipped away from the Government Hospital, Kurnool, to Hyderabad, without participating in any other proceedings. He took it so lightly, and he did not even care to inform about the accident to the police on the ground that it is the duty of the hospital authorities, but not of him. We do not accept this kind of behaviour on the part of the person like P.W.I. We do not also propose to make any further comments in this regard. However, we can only say that such conduct on the part of P.W.I does not appeal to reason and reality.
67. Furthermore, when P.W.I did not even inform the police about the accident, how could he say about the further investigatory process conducted by the police at the scene of accident and it is rather incomprehensible as to how the scene of accident was examined, the inquest and panchanama etc., were conducted without the assistance of P.W. 1.
68. However, it appears that P.W.I was reluctant to participate in any other proceedings. Therefore, he coolly left Kurnool and came back to Hyderabad, leaving the deceased testatrix, who addressed and treated him as her 'dear friend', and the other injured persons to their fate in a hurry, according to him, to collect his car from the house of the testatrix.
69. P.W.2 in his examination-in-chief stated that the testatrix requested him to sign Ex.A-1 'Will' and he signed it after Doctor Navneethsagar Reddy (P.W.3) signed it. Later on, Doctor Sudhakar Reddy (P.W.4) endorsed about her physical fitness on Ex.A-1 itself and then he signed it. He admitted that on the date of signing Ex.A-1, P.Ws.l, 3 and 4 were working in the same hospital in which he was working in different departments.
70. P.W.2 further stated that he was in the habit of signing every document only after knowing the nature of the document. But, surprisingly, in the present case, P.W.2 signed Ex.A-1 'Will' without knowing or reading the contents of it.
71. The further evidence of P.W.2, in his examination-in-chief, in verbatim, is "I signed only on one page of Ex.A-1 and that the date 23rd March which is found in blue ink on Page No. 3 of Ex.A-1 was put by her only."
72. P.W.2 further stated that "he was informed about the death of the testatrix by Mr. Madhava Rao, Advocate, about 15 days after the accident; that the said Advocate came with some typed papers and he put his signature on them; that after reading the said papers, before he signed them, he came to know that the petition O.P. No. 140 of 1996 was signed by P.W.I when Sri Madhava Rao, Advocate, brought the said papers and that after reading O.P. No. 140 of 1996 he came to know that P.W. 1 has something to do with the Ex.A-1 'Will'."
73. From the above evidence of P.W.2, the only interesting aspect to be noted is that as to how Mr. Madhava Rao, Advocate, was acquainted with him and how he signed the papers when the said Madhava Rao, Advocate, asked him to sign them. This is a strange circumstance on the part of P.W.2. The other details, which are not capable of throwing any light on Ex.A-1 'Will', are not relevant. He further stated almost in the similar lines as was stated by P.W.I.
74. The only important revelation from the evidence of P.W.3, who is a Doctor by name Dr. Navneethsagar Reddy, is that he was asked to attest Ex.B-4, which is the earlier 'Will', dated 5-10-1990, and that he does not remember whether he signed at all the places where the testatrix has signed. He denied the suggestion that he had acquaintance with the testatrix since 1990. But, his earlier statement that he was an attestor to Ex.B-4 'Will', dated 5-10-1990, would go to show that he had acquaintance with the testatrix since 1990. Therefore, his denial on this aspect is incorrect. Further, he stated in his examination-in-chief that ever since his student days, he knew P.W.I, as he was his Professor.
75. P.W.4 is another Doctor by name Dr. Sudhakar Reddy, who allegedly examined and issued fitness certificate to the testatrix for executing Ex.A-1 'Will'. The most important statement made by P.W.4 in his examination-in-chief, in verbatim, is:
I have gone through the contents of Ex.A-1 before she signed it; that on reading Ex.A-1, I came to know that P.W.I was the executor and beneficiary under Ex.A-1.
76. Further, the most unpalatable statement made by P.W.4 is:
Even today I do not know whether the testatrix is alive or dead.
77. P.W.5 by name Sri V. Sriram Murthy, who was working as Senior Accountant in B.H.E.L., was also doing part time job as an Auditor and rendering services to the testatrix since 1985. He stated about the cordial relationship of the testatrix with her daughter. He further stated that after the death of the husband of the testatrix, the petitioner (R.W.1) used to stay with the testatrix for two (2) days in a week and gradually the visits of the daughter of the testatrix came down and that by the time of the death of the testatrix, the relationship between the testatrix and her daughter was strained. He further stated that two days after the death of the testatrix, he came to know about the existence of Ex.A-1 'Will' when Sri Madhava Rao, Advocate, read it over to him in his office. However, no time, day and date had been given as to when the said Mahdava Rao, Advocate, informed him about the existence of Ex.A-1 'Will'. According to P.W.5, one day prior to that, the said Madhava Rao, Advocate, informed that the 'Will' would be read over on the next day and that he should be present. Nothing could be found at what time, on what day and what date this witness was asked by the said Mahdava Rao, Advocate, to be present at his office.
78. From the above, it is clear that along with P.W.I he also signed Ex.B-4 'Will', dated 5-10-1990.
79. Therefore, as already noticed, the statement of P.W.5 that he does not know the testatrix since 1990 is not believable and further we are of the opinion that there is some intimate relationship between P.W.I, the testatrix and this witness since 1990. Therefore, in view of the vital contradictions in the evidence of P.W.5, we are of the opinion that his evidence cannot totally be relied upon.
80. The further examination-in-chief of P.W.5, in verbatim, is:
After the 'Will' Ex.A-1 was read over, I requested the Advocate Sri Madhava Rao to leave us alone and after he went out I bolted the door and informed the persons present there that some jewellery of the testatrix was in his Andhra Bank Locker and that she instructed him that in case of her death without nominating anybody for that jewellery it should be given to her first grand son i.e., R.2 herein.
81. In fact, P.W.5 was also one among the beneficiaries of Ex.A-1 'Will' for a sum of Rs. 2,00,000/-. A perusal of the evidence of P.W.5 reveals that P.W.I gave him shares worth of Rs. 2,00,000/-, which were accepted by this witness, and that some others also received shares as beneficiaries under Ex.A-1 'Will'.
82. The relevant portion of cross-examination of P.W.5, worth noticing, in verbatim, runs thus:
About 6 or 7 years prior to the death of the testatrix, one day she wanted me to attest her signature on a paper which I tried to read that paper, she did not allow me to read but only to attest. I then signed that paper, which I was told, was her 'Will'.
83. From the above, it could be seen that the testatrix was not in the habit of disclosing the nature of the document nor allowing others to read the contents of it. At best, she disclosed both at the time of execution of Ex.B-4, dated 5-10-1990, and Ex.A-1, dated 23-3-1995, as they were 'Wills' but not the contents of the same. He further stated that "he does not know whether Sri Madhava Rao is Advocate for P.W.I but in this case he is appearing for P.W.I." Though this witness asserts so many things, all the said details do not throw much light on the veracity or otherwise of Ex.A-1 'Will'.
84. Another important aspect to be noted is that P.W.I tried to introduce the theory of strained relationship between the testatrix and her daughter (R.W.1). In order to prove the same, he relies on Ex.A-4, which is a letter said to have been written by the testatrix.
85. A perusal of the said letter (Ex.A-4) would only show that there were some constraints with the testatrix about her daughter (R.W.1) but nothing more. It is nothing but natural for the like person such as the testatrix to have the association of children and grand children at the advanced age. But, it is to be remembered that the daughter of the testatrix (R.W.1), in the instant case, also lost her husband and that she is living with her two children, who were sufficiently grown up.
86. Furthermore, no details are forthcoming from the said letter (Ex.A-4) as to when, in fact, it was addressed by the testatrix to whom, and, particularly, whether it was addressed to P.W.I. Added to it, in what context and under what circumstances that letter came into possession of P.W.I is also not forthcoming either through P.W.I or by anyone.
87. Therefore, the theory of strained relationship between the testatrix and her daughter (R.W.1) and the resultant execution of Ex.A-1 'Will' by the testatrix bequeathing major chunk of the properties in favour of P.W.I, completely ignoring her daughter, including her grand children, is yet another circumstance, which is doubtful.
88. It is to be further noted that P.W.I had a major and valuable share in the properties of the testatrix, as per Ex.A-1 'Will' alleged to have been executed by the testatrix, ignoring her own daughter (R.W.1) and grand children (Respondent Nos. 2 and 3 in O.P. No. 140 of 1996). But, it is on record that the petitioner (R.W.1) and her deceased mother (testatrix) had joint accounts in State Bank of Hyderabad, Begumpet Branch, Hyderabad, and also Bank of India, Museum Branch, Mumbai.
89. The so-called letter (Ex.A-2) was not established, as contemplated under Section 64 of the Indian Evidence Act. A letter can be received in evidence and can be proved either by examining its author or the addressee of the same.
90. A bare perusal of the said letter (Ex.A-2) would only show that the testatrix had some ill feeling towards the petitioner, who is no other than her daughter. Admittedly, the author of the said letter i.e., the testatrix herself has not mentioned the date, time and the name of person to whom it was addressed. In such a case, it is not known as to what purpose the said letter, which was not specifically addressed to anyone, was kept in the said sealed cover along with Ex.A-1 'Will'.
91. It is to be further seen that Ex.B4 'Will', dated 5-10-1990, goes to show that the testatrix had executed the same bequeathing her properties in favour of R.W.1, who is her daughter, and Respondent Nos. 2 and 3, who are her grant children. Now, after few years what actually made the testatrix to change her mind is not clear; perhaps, to eliminate that possibility and to create a good reason for the testatrix to change her mind, the letter (Ex.A-2) might have been introduced and tagged on to Ex.A-1 'Will' in the sealed cover.
92. For the foregoing reasons, we are of the view that both Ex.A-1 'Will' and Ex.A-2 letter, though were proved to be in existence, the circumstances under which they were brought into existence were not clearly established and the doubts in which those two documents were engulfed with also are not cleared.
93. Further, Mr. Madhava Rao, Advocate, - whose name was chanted by so many witnesses, who was alleged to have received the sealed cover from P.W.I, who called the petitioner (R.W.1) and some others to attend a meeting on 11-2-1996, who opened the cover and found Ex.A-1 'Will' initially at his office, who read over the contents of it to them from a distance, without showing them the original of Ex.A-1 'Will', and who delivered only Photostat copies of Ex.A-1 'Will' to the persons who attended the said meeting - was not examined as a witness by P.W.I. But, the reasons are not forthcoming again from P.W.I and best known to him only for not examining the said Mr. Madhava Rao, Advocate. In fact, all the attestors i.e., P.Ws.2 to 4, who were the Doctors in T.B. and Chest Hospital, Hyderabad, also spoke about the role of said Mr. Madhava Rao, Advocate, who informed them about the death of the testatrix. As to how the said Mr. Madhava Rao, Advocate, and the attestors, who are Doctors, are known to each other, particularly in connection with Ex.A-1 'Will' is also not known.
94. In fact, P.W.I also stated that he handed over the sealed cover to Mr. Madhava Rao, Advocate, only after the death of the testatrix. This fact raises very many questions to answer as to why P.W.I gave the sealed cover to the said Madhava Rao, Advocate, what reasons P.W.I did give, if at all given, what were the instructions given by P.W.I while giving the said sealed cover?
95. Further, from the evidence of P.W.5, it is clear that he (P.W.5) came to know about the existence of Ex.A-1 'Will'.
96. The question now would be how the said Madhava Rao, Advocate, came to know that the sealed cover contains a 'Will', particularly when P.W.I who gave the sealed cover to him and, more particularly, when P.W.I himself does not know the contents of the sealed cover.
97. In the above circumstances, the said Madhava Rao, Advocate, is a key person, who alone could be able to answer many questions and explain many doubtful circumstances. But, he was not examined for the reasons best known to P.W.I only. Therefore, non-examination of said Madhava Rao, Advocate, who is a crucial person to speak with regard to the said important aspects, is absolutely fatal and disadvantage to the respondent and on the other hand, it is advantageous to he petitioner. Further, this strengthens the doubt that the contents of Ex.A-1 'Will' were not only in the knowledge of P.W.I but also the said Madhava Rao, Advocate.
98. Therefore, the examination of said Mr. Madhava Rao, Advocate, in our considered view, is very much essential, which was not done by P.W.I, in the instant case, for the reasons best known to him only.
99. This is all the evidence on record on behalf of the respondent in order to prove the Ex.A-1 'Will', dated 23-3-1995, while asking for the relief of granting probate of the said'Will'.
100. On the other hand, the oral evidence on record adduced on behalf of the petitioner in O.P. No. 134 of 1996 also deserves to be scrutinized in the above said manner, with due care and caution.
101. R.W.1, the only daughter of the testatrix, in her examination-in-chief, stated that Respondent Nos. 2 and 3 in O.P. No. 140 of 1996 are her children and that O.P. No. 134 of 1996 was filed by her for 'letters of administration' of estate of her late mother. It appears, her both sons are employed. She sated that her deceased mother used to consult other doctors also, but the same fact was not revealed to P.W.I on the ground that the same might not be liked by him. She stated that one Mr. T. Seshachalam (R.W.3) was the Auditor of her deceased mother; that P.W.5 used to maintain the accounts of her mother as a part time Accountant.
102. R.W.1 specifically stated that she can identify the signatures and handwriting of her mother; that Para Nos. 1 to 4 in Ex.A-1 are in the handwriting of her mother and the remaining portion was not in the handwriting of her deceased mother and that the signatures found on Ex.A-1 are of her mother and that Exs.A-2 and A-4 were not in the handwriting of her mother.
103. R.W.1 further stated that she was informed by P.W.I about the death of her mother; that on 10-2-1996, when P.W.I's Advocate, Madhava Rao, telephoned her stating that he would be reading the contents of the 'Will' on 11-2-1996, she came to know about the existence of Ex.A-1 for the first time; that the original 'Will' was not given to them for scrutiny, except reading the same from a distance of ten feet; that in spite of specific request to supply a copy of the 'Will', the same was not supplied; that later they addressed a letter to P.W.I to prepare an inventory of all the properties of her deceased mother and to obtain probate of the 'Will'; that P.W.I stated that she cannot ask for any inventory of the properties of her deceased mother and there was no need to obtain Probate of the 'Will'; that her mother was carrying a camera in the car along with the jewellery and both of them were missing and the funeral of her deceased mother took place at about 11 p.m. on 9-2-1996 and that P.W.I did not attend the funeral despite his having knowledge of the same.
104. In her cross-examination, R.W.1 stated that since more than 20 years, Seshachalam (R.W.3) was her Chartered Accountant; that he was the Chartered Accountant to her parents also; that on 8-2-1996 at about 5.30 p.m., her husband received information about the death of her mother; that she was not informed by P.W.I about the death of her mother; that she was also not aware as to whether her husband was informed about the death of her mother by P.W.I. Several other details about the traditional life style of the testatrix have been explained apart from identifying the handwriting of her deceased mother on Exs.A-58 and A-59. The important fact, on which much stress was laid by R.W.1, was that, as on the date of the death of her deceased mother, the relationship between her and her deceased mother was not strained.
105. Sri Khushru N. Mistry, the nephew of the testatrix, who was examined as R.W.2, stated that he was one among those who were travelling in a car along with the testatrix on the day of accident. Mostly, his evidence is regarding the manner in which the accident took place. However, few important things, which are stated, are that the testatrix was having jewellery on her person at the time of the accident and the jewellery noticed by R.W.2 was gold bangles and gold rings; that at the scene of accident itself, P.W.I removed the bangles from the body of the deceased and he was under the impression that he was removing those ornaments to keep them under the safe custody. He further stated that he did not contact the petitioner (R.W.1), as P.W.I informed him that the petitioner would be informed by him only. The other aspects spoken to by R.W.2 do not relate to the execution of Ex.A-1 'Will' and do not require any mention.
106. Sri T. Seshachalam, the Chartered Accountant of both the petitioner and the testatrix, who was examined as R.W.3, deposed that the testatrix was not only his client but also a good family friend. He stated that he could identify the handwriting of the testatrix and that he had association of 20 years with the testatrix and till her death, she was his client. He further deposed that the signatures found at all the three places on Ex.A-1 were not those of the testatrix. However, he stated that on the first page of Ex.A-1, the title 'Will' was in the handwriting of the testatrix and the entire remaining matter of Ex.A-1 on all the three pages was not in the handwriting of the testatrix; that Ex.B-7, which is the statement of accounts, was in the handwriting of the testatrix; that Ex.B-2 was in the handwriting of the testatrix; that Ex.B-4 (the earlier 'Will' of 1990) was also in the handwriting of the testatrix; that Ex.A-2 was not in the handwriting of the testatrix; that he knew P.W.I as physician of the deceased; that he also knew P.W.5, who used to attend the accounts of the deceased; that three days after the death of the testatrix, one Advocate, by name Madhava Rao, telephoned him and asked to come to his office to be present at the time of opening of a 'Will' executed by the testatrix; that accordingly, he went to the office of the said Advocate where the 'Will' was opened and that on enquiry, the Advocate, Mr. Madhava Rao, informed him that the 'Will' was written by him. The remaining part of the evidence of R.W.3, which is in the nature of suggestions and denials, is not of much consequence.
107. Sri J.D. Moos, the brother of testatrix, who was examined as R.W.4, stated, in his chief-examination, that he was a resident of Bombay; that on information about the death of the testatrix, he came to the house of the testatrix at Hyderabad at 5-00 p.m., and the dead body of the testatrix arrived at 10-30 p.m., that one Mr. Madhava Rao, Advocate, came there along with his assistant; that prior to that he has not seen that Madhava Rao; that the said Madhava Rao gave a cover to Respondent No. 2, who was present along with all of them, and asked them to open and read the contents of that cover; that the Respondent No. 2 opened the cover and the letter from the cover was circulated to all of them and they read it one after the other; that in the said letter it was mentioned that the deceased should be cremated and her last rights should be performed by P.W.I; that after all of them reading the letter, the said Madhava Rao took away the same and that on knowing the contents of the said letter they were shocked to know that a stranger was nominated for performing the last rights of the testatrix.
108. During the cross-examination, R.W.4 stated that Ex.A-2 is the letter that was seen by all of them on being produced by Mr. Madhava Rao, Advocate, on the date of funeral of the testatrix; that Ex.A-2 was not in the handwriting of the testatrix nor it was signed by her; that Ex.B-5 was not in the handwriting of the testatrix nor it was signed by her; that Ex.B-2, in all three pages, was in the handwriting of the testatrix and it was signed by her and that most of the contents in Ex.B-7 were in the handwriting of the testatrix only and something was written with pencil on it. The other evidence of R.W.4 does not relate to the execution of Ex.A-1 'Will'.
109. From the abovementioned evidence on record, and in the light of the pleadings of both parties in O.P. Nos. 134 and 140 of 1996, it could be seen that the whole controversy revolves around Ex.A-1 'Will' only.
110. In fact, R.W.1, the only daughter of the testatrix, also deposed in her evidence that Paragraph Nos. 1 to 4 in Ex.A-1 'Will' are in the handwriting of her mother and the remaining portions of the 'Will' are not in the handwriting of her deceased mother and that she was informed over telephone by Mr. Madhava Rao, Advocate, that he would be reading the contents of the 'Will' on 11-2-1996 and accordingly she attended and participated in the said meeting where allegedly Photostat copies of Ex.A-1 'Will' were furnished to her along with some others.
111. R.W.1 in her cross-examination stated that "Paragraph Nos. 1 to 4 of Ex.A-1 'Will' were in the handwriting of her deceased mother."
112. It appears from the evidence of R.W.1 that there was a joint account being operated by her and her deceased mother at State Bank of Hyderabad, Begumpet Branch, Hyderabad, as well as Bank of India, Museum Branch, Bombay. This fact was not rebutted by P.W.I in the cross-examination of R.W. 1.
113. The evidence of R.Ws.2 to 4 is not very relevant since they spoke about the aspects of accident, the death of testatrix and also to some extent about the removal of gold jewellery from the person of testatrix after her death in the accident. This evidence does not really throw much light on the validity or otherwise of the disputed 'Will' Ex.A-1.
114. It is well settled principle that the onus to prove a 'Will' would be on the propounder and in the absence of suspicious circumstances surrounding the execution of a 'Will', proof of testamentary capacity and proof of the signature of the testator, as required by law, would be sufficient to discharge the onus. Further, where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the Court before the 'Will' could be accepted as genuine.
115. It is also well settled principle that the proof, in either case, cannot be mathematically precise and certain, and, should be one of satisfaction of a prudent mind in such matters. In case, the person contesting the 'Will' alleges undue influence, fraud or coercion, the onus will be on him to prove the same. As to what are suspicious circumstances has to be judged in the facts and circumstances of each particular case.
116. In Sridevi v. Jayaraja Shetty , the Apex Court (at Paragraph No. 11) held thus:
It is well-settled proposition of law that mode of proving the Will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act, 1925. The onus to prove the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the Court before the Will can be accepted as genuine. Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. In case the person contesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same. As to what are suspicious circumstances has to be judged in the facts and circumstances of each particular case. (Fr this, see H. Venkatachala Iyengar v. B.N. Thimmajamma and the subsequent judgments Ramachandra Rambux v. Champabai , Surendra Pal v. Dr. Saraswati Arora , Jaswant Kaur v. Amrit Kaur and Meenakshiammal v. Chandrasekaran ).
117. Therefore, we are of the view that even assuming that in order to prove the execution of Ex.A-1 'Will', P.W.I examined P.Ws.2 to 4, who are Doctors, to prove that Ex.A-1 'Will' was executed by the testatrix herself, but, the discrepancies, which are vital in nature, as pointed out by us earlier in the earlier paragraphs, does not really concretize the factum of execution of Ex.A-1 'Will'.
118. Giving life-interest to the respondent and later to endow the property to a 'charitable trust' as per the wish of the respondent is yet another doubtful circumstance.
119. We do not see any plausible reason for the testatrix to create life-interest on the respondent, who is a reputed Doctor, and conferring a duty as well as a right to create a 'trust' and handover the property to the same (trust). In fact, when any prudent person intends to give away the property by way of a 'Will', he or she would normally think of his or her immediate person and, or, in case of creating the interest in favour of a 'trust' that discretion would be exercised by himself or herself, as the case may be, instead of leaving it to some other person to exercise. This stance on the part of the testatrix, in our opinion, is an added circumstance to the already expressed doubtful circumstance, though not by itself a doubtful circumstance. It virtually amounts to alienating all the rights to the respondent.
120. As already pointed out, the very execution of Ex.A-1 'Will' is shrouded in so many doubtful circumstances, which have been referred to already, and the same are not capable of touching the conscience of this Court about the veracity or otherwise of Ex.A-1 'Will'. In other words, the alleged 'Will' Ex.A-1 and its execution and the way in which it came into light is full of questions and answers. Therefore, we are unable to hold that Ex.A-1 'Will' is beyond all doubts, true and valid.
122. In Ryali Kameswara Rao's case (supra), the Division Bench of this Court held:
Suspicion alleged must be one inherent in the transaction itself and not the doubt that may arise from conflict of testimony, which becomes apparent on an investigation of the transaction. It was further held that suspicious circumstances cannot be defined precisely.
123. In the instant case, it is to be seen that, in addition to the doubtful circumstances, as already discussed above, one conspicuous factor that was in the knowledge of the Court below and both the parties to the present proceedings was that the writing in Ex.A-1 'Will' up to Paragraph No. 5 and also the date portion '23rd March' was in a different ink i.e., blue ink, and slanting. But, a portion of Ex.A-1 'Will', in Paragraph No. 6, to the naked eye, appears to be in different ink and the writing was straight.
124. R.W.1 pointed out this specifically and stated that up to Paragraph-4 the handwriting of Ex.A-1 'Will' was that of her deceased mother and thereafter the handwriting and the signature on the 'Will' were not that of her mother. The signature on Ex.A-1 'Will', whether belongs to the testatrix herself or not, is a different aspect altogether. Even if the signature of the testatrix on earlier will (Ex.B4) and Ex.A.l 'Will' appear to be alike; the crucial factor is the distinct and conspicuous difference in ink and handwriting apparent on the face of the 'Will'.
125. In other words, the said variation in the ink and handwriting of a particular portion in Ex.A-1 'Will' itself has been staring at everyone. We are unable to get an answer to this staring question. Therefore, we consider this as a doubtful circumstance, which is innate and apparent on the face of Ex.A-1 'Will' itself.
126. Further, in Meenakshiammal's case (supra), it was held by the Apex Court that in the absence of suspicious circumstances surrounding the execution of a 'Will', the propounder can be said to have discharged his onus if he proves - (a) testamentary capacity of the testator, and (b) signature of the testator as required by law.
127. In the instant case, P.Ws.2 and 3, the attestors of Ex.A-1 'Will', deposed to the factum of execution of the 'Will'. But, as already noticed in the preceding paragraphs of this judgment, there are some serious discrepancies in the evidence of P.Ws.2 and 3.
128. That apart, in the preceding part of this judgment, we have already taken note of various doubtful circumstances. Hence, even if the respondent has discharged his burden as to the execution of the 'Will', since such execution is surrounded by various other doubtful circumstances, it cannot be said that the 'Will' is genuine, valid and binding on all the parties.
129. It cannot be gainsaid that execution of a 'Will' and proof thereof shall be in total elimination of all the doubtful circumstances. In other words, mere execution of a 'Will' and proof thereof is not sufficient, and the 'Will' is valid only when there are no doubtful circumstances.
130. For the foregoing reasons, Point No. 1 is answered in favour of the petitioner and against the respondent.
131. Insofar as O.P. No. 11 of 1999 is concerned, taking into consideration the overall facts and circumstances, particularly the evidence on record, both oral and documentary, we are of the opinion that C.M.A. Nos. 2770 of 1999 and 2771 of 1999, filed by Prof. & Dr. D. Venkayya Chowdhary, who is referred to as "the respondent" in the present common judgment, are liable to be dismissed and the impugned common order and decrees, dated 30-7-1999, whereby the Court below allowed O.P. No. 134 of 1996, filed by the daughter of the testatrix, seeking to grant 'letters of administration' in respect of the estate of the deceased, and dismissed O.P. No. 140 of 1996, filed by the respondent, seeking to grant 'probate of Ex.A-1 'Will', dated 23-3-1995', alleged to have been executed by the deceased appointing the respondent as 'executor' are liable to be confirmed and hence we have no option except to allow O.P. No. l1 of 1999, filed before this Court by the daughter of the deceased, seeking to remove the name of the respondent as 'executor' under Ex.A-1 'Will', dated 23-3-1995.
132. In Re Point No. 2: In the result, C.M.A. Nos. 2770 of 1999 and 2771 of 1999 are dismissed and the common order and decrees in O.P. Nos. 134 of 1996 and 140 of 1996, dated 30-7-1999, respectively, passed by the I Additional Chief Judge, City Civil Court, Secunderabad, are hereby confirmed. Consequently, O.P. No. 11 of 1999, filed by the petitioner under Section 301 of the Act, is allowed. However, there shall be no order as to costs.