(Prayer : Suit filed under Sections 222 and 276 of the Indian Succession Act.XXXIX of 1925 r/w. Order XXV Rule 5 of the Original Side Rules, to permit the plaintiff to prove the Will dated 18.11.2019 in common form, and that probate thereof to have effect throughout the whole State of Tamil Nadu.)

1. This Testamentary Original Suit has been filed to permit the plaintiff to prove the Will dated 18.11.2019 in common form, and that probate thereof to have effect throughout the whole State of Tamil Nadu.

2. The Original Petition filed seeking probate of the Will dated 18.11.2019 has been converted into Testamentary Original Suit in view of the objection raised by the defendant.

3. The short facts pleaded in the plaint are as follows:

The plaintiff was the sister of the deceased Nandhini Sathyamoorthy. During her life time, Nandhini Sathyamoorthy had executed a Will dated 18.11.2019 and made certain obligations to be fulfilled as per the Will from and out of the sale proceeds of the suit property. The defendant is the adopted daughter of the testatrix. The testatrix had appointed the plaintiff and her brother K.Ravi as executors of the Will. The testatrix was working as a Principal of TVS School at Tiruvannamalai and her husband predeceased her before 30 years. After the retirement, the testatrix settled at Kattuputhur, 60 km from Trichy and was living all alone without any dependency on others. During October 2019, the testatrix had undergone two major surgeries for implanting pacemaker and removal of cancerous growth in colon. For the said treatment, she was admitted in MGM hospital in Chennai. During her post operative stay at Chennai, the deceased had written a Will under probate before leaving to Trichy. Though she continued to live in Trichy, she visited Chennai for further reviews with doctors at Chennai. The deceased was engaged in a small work from home by making pickles and podis and made a small earning for herself.

                     3.1. On 25.05.2021, she was tested positive for Covid-19 and admitted at Hospital at Trichy. Thereafter, she died due to massive heart attack on 31.05.2021. Before leaving to hospital on 26.05.2021, the deceased informed the plaintiff who was in Chennai through Whatsapp message and phone call and instructed the place where she had kept the bureau keys and also about the important things to be done in the event of any untowardness. The testatrix died due to heart attack and the plaintiff took out the key as per the information provided by the testatrix and found the valuable jewels, house documents and a Will dated 18.11.2019.

                     3.2. After the plaintiff took custody of the Will, she informed the other family members by convening a ‘zoom’ meeting. But, the defendant did not join the said meeting. The brother of the plaintiff has chosen to recuse himself and did not want to take up the responsibility of probating the Will for the reasons known to him. The plaintiff despite suffering from certain ailments, has come forward to file this suit in order to fulfil the wishes of the deceased sister.

4. The averments made in the written statement filed by the defendant are as follows:

The defendant is the only daughter and the legal heir of the deceased Nandhini Sathiyamoorthy. The mother of the defendant was a chronic diabetic patient. Just prior to the date of the alleged Will, the testatrix had undergone two major surgeries one for implantation of pacemaker and another for removal of cancerous growth in colon. At that point of time, the deceased was 76 years old. Hence, it was not possible for her to execute a Will during that time. Immediately after the surgery, the testatrix was not mentally stable and she was unconscious and was under constant medical attention. Subsequent to the surgery, the testatrix was residing at the residence of the plaintiff. By taking advantage of the same, the plaintiff had created the Will. The signature of the testatrix was not found at page Nos. 1 and 2 of the Will. The other signatures found in page Nos.3 and 4 are also suspicious.

                     4.1. On 16.07.2021, a legal notice was sent to the defendant about the alleged Will. The defendant sent a detailed reply raising doubts about the execution and the genuineness of the Will. Prior to the alleged Will dated 18.11.2019, the testatrix had executed a Will and the same was destroyed by the testatrix herself. The defendant was informed by her mother that she would execute an another Will, thereby bequeathing the suit property in favour of the defendant and that, the original Will would be given to her uncle Mr.K.Ravi. The said cover has been handed over to Swarnamalya, the daughter of the plaintiff. The plaintiff and her daughter had concealed the fact about the Will and did not hand over the same to the maternal uncle of the defendant.

                     4.2. The first attesting witness is the associate of the plaintiff. The second attesting witness is the daughter of the plaintiff. That also creates doubt about the genuineness of the will dated 18.11.2019. The schedule of the property was given in rear side of page No.3 and the same does not form part of the Will and this by itself creates serious doubt on the execution of the same. The mother of the defendant never informed about the execution of the alleged Will at any point of time and the contents of the Will would show that it has been created for oblique motives. The maternal uncle of the defendant did not join with the plaintiff in the above proceedings. The plaintiff has suppressed the real facts with a motive to grab the property absolutely belonging to the defendant. The defendant as a class I legal heir, is entitled to inherit the properties of her mother. In order to deprive the right of the defendant from inheriting the property of the deceased mother, the plaintiff in collusion with her junior advocate and her daughter, had created a forged Will by laying claim over the property of the mother of the defendant. Hence, the suit should be dismissed.

5. The reply statement of the plaintiff in brief:

The testatrix is the elder sister of the plaintiff. Because of that bonding, she had chosen to live with the plaintiff to carry out the execution of the Will. The plaintiff has got no personal interest or gain in the properties of the deceased nor is she a beneficiary of the Will. None of the attesting witnesses is also a beneficiary of the Will. The defendant alone is the legal heir of the testatrix, being the adopted daughter of the testatrix. In the absence of the Will, she is entitled to inherit the estate of the deceased to the exclusion of the others. For the reasons best known to the defendant, her deceased mother had executed a Will and stated that she has done whatever was possible to her daughter during her lifetime. Neither the plaintiff nor the Court is concerned with the reasons prompted the testatrix to write a Will excluding the defendant from being a beneficiary.

                     5.1. The plaintiff has examined the attesting witnesses. One of the attesting witness Ms.Ashitha Nair was a close associative of the plaintiff and was well known to the deceased. She was the one who handled the matrimonial case of the defendant. The other witness is the own daughter of the plaintiff who was also very close to the testatrix and hence, she was present at the house when the testatrix had executed the Will and attested the same. The plaintiff does not have any personal grudge against the defendant and she has filed the suit just because she has been appointed as the executor of the Will.

                     5.2. The defendant, for the past several years, had maintained distance from her mother and failed to take care of the testatrix. The deceased mother was compelled to live alone and away from the defendant. The testatrix used to stay with the plaintiff whenever she visited Chennai for treatment. Even for the medical treatment, the defendant did not offer any shelter to her mother. The testatrix had performed two marriages for the defendant and attended to the delivery charges of her two sons. The defendant is a media artist and has her own earnings apart from the income of her husband and leading a comfortable and decent life. Only because the defendant did not invite her mother to stay with her during her medical treatment, she was compelled to stay in the plaintiff's house.

                     5.3. The defendant remained totally unconcerned about the medical treatment of her mother and visited the hospital during the surgery just for formality. She did not offer any financial help or taken care of the mother for post operative care. Even before or after the surgery, the testatrix had opted to stay with the plaintiff. The defendant for the first time claims herself as a rightful daughter of the testatrix and that too to claim rights over the property.

                     5.4. The testatrix was well-educated and was capable of independent thinking and she never put herself in a position of being tutored or influenced by others. The family had maintained a WhatsApp group by name “Tireless Talkative” from the year 2014. The chats extracted from the plaintiff's personal mobile would show that the deceased was staying at the plaintiff's house during her medical treatment. It is false to state that the testatrix did not have the mental balance at the time when the Will was executed.

                     5.5. During the WhatsApp communication on 09.06.2020, the testatrix had mentioned four names with whom the documents could be placed in safe custody. They were her brother K.Ravi, his daughter Aishwarya and the plaintiff’s daughters Swarnamalya and Radhika. Even at that point of time, the testatrix did not mention the name of the defendant. The defendant did not come forward even to settle the hospital bill or the funeral expenses of her mother. Neither the plaintiff nor her family members are the beneficiaries under the will and they are not going to gain anything by probating the Will. In fact, it is an unwarranted additional burden on the plaintiff, despite involving monetary burden in prosecuting the case. The tenants in the suit property are in occupation without giving any rent. The plaintiff is unable to exercise any control without a valid probate. Hence, the Suit should be allowed.

6. During the course of the trial, on the side of the plaintiff, three witnesses have been examined as P.W.1 to P.W.3 and Exs.P1 to P27 were marked. On the side of the defendant, the defendant was examined as D.W.1 and Exs.D1 & D2 were marked.

7. On the basis of the above pleadings, the issues are reframed as follows:

                     “1. Whether the Will dated 18.11.2019 is true and genuine?

                     2. Whether the Will has been executed by the testatrix while she was in sound disposing state of mind?

                     3. Whether the plaintiff is entitled to the relief as prayed for?”

Discussion:

8. The relationship between the parties and the fact that the testatrix is the owner of the suit property is not in dispute. The testatrix is the elder sister of the plaintiff and she maintained a good bonding with her. The Will is an unregistered Will. However, it is claimed by the plaintiff that the Will has been executed by the deceased while she was in a sound disposing state of mind. The Will has been marked as Ex.P2. During the time the testatrix had undergone two surgeries at MGM Hospital, the plaintiff in her capacity as a sister stood in support of her. The plaintiff’s family had created a Whatsapp group by name “Tireless Talkative” and the members of the family were conversing between themselves about the health condition of the testatrix when she was admitted in hospital. The suit property is situated in Kattuputhur at Trichy. The testatrix is a retired principal of a school and she had chosen to settle herself at Trichy. Even according to the defendant, her mother was running a Trust and she was also doing a small business of preparing pickles and podis and making her own income at Trichy.

9. It is the contention of the plaintiff that when the testatrix was suffering from serious health issues, her siblings had admitted her in the hospital and took absolute care of her. After she was discharged from the hospital, she was staying in the plaintiff’s house for post operative care. The allegation of the defendant is that the plaintiff had made use of that occasion and created a Will, and thereby disinherited her from inheriting the suit property which belonged to her mother. As per the terms of the Will, the testatrix intended to sell the suit property and make use of the sale proceeds for the purposes listed out by her. After meeting the purposes, the reminder is desired to be used as corpus for the family benefit and to utilise the funds for the medical emergencies of the family members.

10. The Will has been attested by Ms.Ashitha Nair who is said to be the associate of the plaintiff and Radhika Ganesh who is the daughter of the plaintiff. The plaintiff has stated in her evidence that the testatrix was very kind to her daughter and the first attesting witness, Ashitha Nair who was the advocate, was well known to the family of the testatrix and hence, she had used them as natural choices to stand as attestors of the Will. The plaintiff and her brother K.Ravi have been appointed as executors of the Will, but, the plaintiff has stated that her brother is not interested to act as an executor. Hence, the plaintiff has filed this Suit in order to fulfil the desires of her deceased sister and as set out in the Will.

11. Even though the plaintiff’s brother did not evince any interest to act as an executor, he did not raise any objection for the plaintiff to act as an executor in order to entitle the plaintiff to get the probate as prayed by her. It has to be proved before the Court that the Will is valid and it has been executed in accordance with Section 63 of the Indian Succession Act and its genuineness has been proved under Section 68 of the Indian Evidence Act. By production of the Will and also by examining the attestors of the Will as witnesses, the plaintiff has claimed that she had discharged her burden of proof under Section 68 of the Indian Evidence Act.

12. Ex.P2 is a typed Will and the testatrix has signed at the concluding page of the Will and the particulars of the property has been attached in a separate page. It is stated by the defendant that the signature of the testatrix is not found in all the pages after completion of the Will and only in the next page, the particulars of the property has been described. So far as the signature of the testatrix is concerned, it is not necessary or mandatory that the testatrix needs to sign in each and every page of the Will.

13. In this regard, it is appropriate to cite the decision of this Court held in Ammu Balachandran Vs. Mrs.O.T.Joseph (died) and Others, reported in AIR 1996 Madras 442. In the case involved in the above judgment also it was submitted before the Court that the testator has not signed in each and every page of the Will. The court has held that the law does not demand that the executant of the Will should sign in each and every page of the Will. It is held that one signature in the last sheet of the Will itself is sufficient and that would satisfy the requirements contemplated under Section 63 of the Indian Succession Act. The relevant paragraph of the above judgment is extracted hereunder:

                     “49. The other suspicious circumstances are, that there is no signature in pages 1 and 2 and those pages are also not numbered in the Will. The argument that is taken is that pages 1 and 2 must have been subsequently substituted, and that is why page number is not found in those pages. If pages 1 and 9 have been subsequently substituted, in that attempt, the numbering of pages 1 and 2 would not have been forgotten as it is an obvious thing. Again, pages 1 and 2 are appearing on a single sheet of paper, and as such, there is no necessity for numbering the first sheet and there was only one more sheet and since it was a separate sheet, the page number was given. We must also remember that P.W. 2 has stated that when he signed in the Will, there were two sheets pinned together. In the absence of any other positive evidence, no inference can be drawn that pages 1 and 2 were subsequently substituted. The other suspicious circumstance alleged is that the Will is not signed in all the pages. That also cannot be said to be a suspicious circumstance since the Will is only a declaration of the last Will of the testator. Law does not say that every page should be signed. In paruck on The Indian Succession Act, Eighth Edition, 1993, the learned Author has commented on this point, at pages 118 and 119 of that book. The learned Author says that if a Will is written on several sheets of paper, it is not necessary that all the pages should be severally signed. One signature on the last sheet, made with the intention of executing the Will is sufficient. Section 63 of the Indian Succession Act only says that the signature or mark of the testator or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as Will. The signature or mark of the testator can be either at the commencement or at the end, but it must be so placed that it shall appear that it was intended to give effect to the instrument as a Will. Under the English Law, there is a slight difference. At pages 118 and 119 of the said book, the learned Author has said thus:--

                     ".... In England the Law is different. The Will Act, 1837, Sec. 9, enacted that no Will was valid unless it was signed "at the foot or end thereof. The Will Act Amendment Act, 1852, Section 1, provided that "every Will shall, so far as regards the position of the signature of the testator be deemed to be valid if the signature shall be so placed at or after or following or under or beside or opposite to the end of the Will, that it shall be apparent on the fact of the Will that the testator intended to give effect by such his signature to the writing signed as his Will... but no signature shall be operative to give effect to any disposition or direction which is underneath or which follows it". The signature on the top right hand corner of the Will is not valid according to English law."

                     In so far as the Indian Succession Act is concerned, the learned Author has stated (at page 119) thus:--

                     "... the signature need not necessarily be at the end of the Will. It does not matter in what part of the Will the testator signs. In the Wills executed in vernacular language it is usual to put the signature on the top of the Will. This is valid execution."

                     All the suspicious circumstances alleged by the appellant are no circumstances which vitiate the Will.”

14. Two witnesses have attested the Will and affixed their signatures. The averments of the Will is in English. The testatrix was conversant in English and the said fact can not be denied by the defendant. Ex.P2 Will, on the face of it, does not fall short of the essential mandates contemplated under Section 63 of the Indian Evidence Act.

15. Now coming to the proof of Will under sec. 68 of the Evidence Act is concerned, one of the attestors who has been examined as P.W.2 has stated in her evidence that she happened to visit the testatrix when she was admitted in the hospital for undergoing major surgeries. When she visited the testatrix on one occasion, she expressed her desire to write a Will and gave instructions and requested to draft one. P.W.2 has stated in her evidence that she had prepared one and got the approval of the testatrix and has taken a print out and handed over it to the testatrix personally on 18.11.2019. At that time, the younger daughter of the plaintiff by name Radhika Ganesh was there and the deceased requested P.W.2 and Radhika Ganesh to attest the Will and they affixed their signatures in her presence and they had also seen the testatrix signing on the Will in their presence.

16. When a specific question was put to P.W.2 whether the testatrix was in a sound disposing state of mind at the time of executing the Will, P.W.2 has answered that the testatrix was in a sound disposing state of mind at the time when she has executed the Will. When the plaintiff could be able to prove the validity of the Will by examining the attesting witnesses, the burden would shift upon the defendant to disprove the same. Though the defendant has stated that the signature in Ex.P2 Will does not appear to be her mother’s signature, she did not produce any document to show that the signature in Ex.P2 is different from that of the usual signature affixed by the testatrix.

17. When the signature on the Will is proved to be genuine, it goes with the presumption that the testatrix at the time of executing the Will was in a sound and disposing state of mind. In such case, the burden will be on the defendant to refute the same by producing evidence contrary to the same. However, the rebuttal evidence on this aspect need not be direct and it can also be through the circumstances surrounding the testatrix at the time when she executed the Will.

18. On perusal of the Whatsapp family conversations, which have been marked as Exs.P7, P8, P10, P12, P13 by the plaintiff, it is seen that the testatrix had also participated in the conversation. It makes clear that the testatrix was under the influence of the plaintiff as she was staying in her house immediately after the surgery and was undergoing post operative treatment from there. The testatrix and the plaintiff have a good sibling bonding between themselves and

19. The testatrix was grateful for the plaintiff for having been a support during her stay in the hospital. For the reasons best known the testatrix had not chosen to stay at the defendant’s house. The family conversation does not reveal that the testatrix had any apparent hatred or ill-will towards the defendant. As the plaintiff is more experienced and matured than the defendant the testatrix could have chosen to stay at her sister’s house instead of her daughter’s house during her treatment. The conversation would show that the testatrix has been in the habit of conveying important information and consulting the plaintiff about anything important.

20. The plaintiff has stated that she was not present at the time when the will was executed. Though he might not be present at the time when the Will was executed, there is possibility for the plaintiff to know about the Will prior, during or immediately after the Will was executed. This is in view of the strong sibling bondage between herself and the testatrix. One of the attestors viz., Ashitha Nair is the associate of the plaintiff and the other attesting witness is her daughter. The Will being a legal document, it is quite possible in the circumstances of the Will and relationship between the testatrix that the plaintiff might have known about the Will, even before the last days of the testatrix.

21. Some of the doubtful circumstances raised by the defendant are that she being the class I legal heir of her mother, has been excluded to inherit the suit property from her mother and that the mother was under the influence of her sister and that the will was not executed when she was sick and she did not exercise her free will.

22. The plaintiff has stated that the defendant did not have any interest in her mother’s well being and she did not even take care of her mother while she was in hospital and did not come forward to share the medical bills. The defendant being a media artist, would not have visited her mother frequently. However, the Whatsapp conversation would reveal that she had visited her mother on some occasion when she was admitted in the hospital. The recitals of the Will does not state anything negative about the defendant. The defendant has stated that she did not have any strained relationship with her mother. Just because the deceased preferred to stay with her sister and bonded with her even after her daughter settled with her family in Chennai, it cannot be presumed that the relationship between herself and her daughter was bitter.

23. There is nothing on record to show that the defendant had refused to take care of her mother. As the defendant was a media artist, she might be having irregular working hours and that could also be a reason for her to allow the testatrix to stay at her sister's house. When the disinheritance of the rightful legal heir is raised as one among the doubtful circumstances, then, the Court has an obligation to look into the entire gamut of relationship of the testatrix. As stated already, the Will does not state any valid reasons for the disinheritance of the defendant from the suit property.

24. P.W.2 has stated that she was asked by the testatrix to prepare a Will and she had prepared the Will as how it was desired by the testatrix. Just two weeks before the date of execution of the Will, the testatrix was discharged from the hospital. The Whatsapp conversation of the family group would show that even when the testatrix was discharged from hospital, she stayed at the house of the plaintiff and the housemaid of the testatrix has been staying there to take care of the testatrix.

25. At no point of time, the testatrix appeared to have avoided her daughter by developing any bitterness towards her. In fact, it was the defendant who performed the last rites for her mother at Trichy all alone in view of Covid-19 pandemic situation. Swarnamalya, one of the daughters of the plaintiff and who was at Trichy when the defendant's mother was admitted in the hospital at Trichy for Covid-19, asked the defendant not to come and that she herself would do the last rites of the deceased. However, the defendant went there and performed the last rites for her mother. It would have been a right thing, if Swarnamalya opened the bureau in the presence of the defendant who is the only daughter of the deceased. Even if she happened to open it before or after the death of the deceased and at the instructions of the deceased, she could have insisted the presence of the defendant, who is the only legal heir of the deceased. She opened the bureau, collected certain things and documents kept by the deceased and brought them back to Chennai and handed over them to the plaintiff. And the will is also a part of things so entrusted by the plaintiff’s daughter to her. This will clearly help in favour of the defendant to establish a doubtful circumstance.

26. It is the contention of the plaintiff that until the things taken from the bureau were handed over to the plaintiff, she did not know about the existence of the Will. But she has stated in her evidence that at some point of time she had even insisted the deceased to rethink about the Will and change it accordingly, but the defendant’s mother did not heed to her suggestion. Had the plaintiff was aware of the Will only after it was brought by her daughter from Trichy, she could not have made such suggestions about the Will to the deceased. Even if it is presumed that the plaintiff came to know about the existence of the Will even during the life time of the testatrix but got its custody after her death, she could have revealed the fact about the Will immediately after the death of the deceased, when she was having conversations with the defendant. But she did not do so.

27. The defendant came to know about the Will from the plaintiff only on 07.07.2021. This circumstance coupled with the facts that the Will had been executed at the house of the plaintiff and that too immediately after the discharge of the deceased from the hospital. The records will show that the deceased needed post operative care, in view of the serious major surgery done on her. The date of the execution of the Will was just two days prior to her departure to Trichy, after undergoing surgery. The attesting witnesses were closely related with the plaintiff and the tracing of the Will by the plaintiff's another daughter was done in the absence of the defendant. All these facts will cause cloud on the genuineness of the Will. In view of the above doubtful circumstances now established by the defendant, the burden shifts back to the plaintiff to prove whether the Will was in accordance with the desire of the deceased and whether the executant was in a free and disposing state, even if the signature of the executant might be genuine.

28. In fact, during the conversation of the defendant's uncle with the defendant's husband, he has stated that he has not involved in anything about the Will and he was damn sure that all those belonged to the deceased should be given to the defendant. The defendant's uncle tried to solve the matter within the family and he did not evince any interest to join with the plaintiff as one of the executor of the alleged Will.

29. As per the contention of the plaintiff, she came to know about the Will only subsequent to the death of the testatrix when her daughter Swarnamalya brought the things kept by the deceased in her bureau. Even when P.W.2 was asked a question whether she had informed about Ex.P2 Will to her senior (plaintiff), she has given an evasive answer that she did not remember. P.W.2 has stated in her evidence that after the execution of Ex.P2 Will, it was entrusted to the testatrix herself. In one of the conversation between the plaintiff and the testatrix, the plaintiff insisted the testatrix to get back her documents to keep it safe. The above statements were directly in contradiction with each other.

30. When P.W.2 was asked what was the role of K.Ravi, who was the plaintiff's brother, in the execution of the Will, she answered she did not know and she had no comments. For the further question whether P.W.2 has informed about the Will to K.Ravi, she has stated ‘no answer’. Such kind of evasive answers given by P.W.2 also creates doubt with regard to the genuineness of Ex.P2 Will. As strong suspicious circumstances culled out by the defendant and as explained above have not been successfully dispelled, it is difficult to hold that Ex.P2 Will has been proved to be acceptable.

31. The defendant being only daughter of the deceased and natural class I legal heir, there is no necessity for the testatrix to think about the execution of the Will. None of the conversation between the plaintiff and the testatrix would show that the deceased had communicated in any of the message that she has intended to write a Will. Except the persons who are closely associated with the plaintiff, no other independent person is seen to have involved in Ex.P2 Will and that the other daughter of the plaintiff has secured the Will from the bureau of the deceased in the absence of the defendant.

32. The recitals of the Will say that some amount should be given to her housemaid. When the testatrix decided to give a small token to her own housemaid, it is difficult to believe that she had completely disregarded her own daughter and grandsons from getting even a bit of her assets. The doubtful circumstances established and proved by the defendant are strong enough to repel the initial proof offered by the plaintiff in respect of Ex.P2 Will. Therefore, the issues 1 to 3 are answered against the plaintiff and hence the plaintiff is not entitled to get the relief as prayed.

33. In the result, this Testamentary Original Suit is dismissed. No costs.