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IN THE MATTER OF ESTATE OF LATE SMT.EDNA DIAMOND PETERS

High Court of Judicature at Allahabad

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In The Matter Of Estate Of Late Smt.Edna Diamond Peters - TESTAMENTARY SUITS No. 13 of 1998 [2006] RD-AH 7835 (18 April 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Judgment reserved on 6.4.2006

Judgment delivered on 18.4.2006

TESTAMENTARY SUIT NO. 13 OF 1998

In the matter of  the

Estate of late  Mrs. Edna Diamond Peters

A.S.K. Sircar - Plaintiff

vs.

Mrs. Joyce Cynthia Prabhakar & others- Defendants

Connected with

TESTAMENTARY SUIT NO. 5 OF 1998

Mrs. Joyce Cynthia Prabhakar

and another - Plaintiffs

Vs.

Mrs. Aruna Seetal and others Defendants

Hon'ble Sunil Ambwani, J.

1. Mrs. Edna Diamond Peters the deceased served as a teacher in St. Mary's Training College, at Allahabad. She died on  5.1.1998 at Allahabad at the age of 78 years. In Testamentary Suit No. 13 of 1998, Mr. Arnold Sunil Kumar  Sircar (A.S.K. Sircar), her sister's younger son  has applied for grant of 'probate' of her will dated 5.9.1994  by which she made the bequest for benefit of Mrs. Asha Sircar; Mr. Pankaj Sircar wife and son of Mr. A.S.K. Sircar of all her estate, certain sums of money to Missionaries of Charity; Sitaram; Shakuntala; Kamla and Ram Autar (servants) and 20% of the residual amount each to Mr. Rajiv Sircar; Mrs. Anita Simon; Mrs. Lalitha Francis; Mrs. Joyce Prabhaker and All Saints Cathedral. The suit is contested by Mrs. Joyce Cynthia Prabhakar the step sister   and Mrs. Anita Simon, the niece of the deceased. The caveator-defendants have denied the execution of the will by the deceased. In  paragraph Nos.4, and thereafter 5, ( c), (d), (f), (k) of their objections, the defendants have pleaded  that on 5.9.1994 the deceased was not in a sound physical condition or in sound state of mind   nor duly executed the will. The death of her son Ernest, her only child,   totally  shattered  her mental and corporeal faculties,  which were already impaired considerably due to her old age and ill health. She was suffering from diabetes,  angina and blood pressure for decades and was operated to remove cataract from  both her eyes. She was not in a sound and disposing state of  mind. Mr. A.S.K. Sircar, the plaintiff- propounder  was serving in the Bank. His wife  Mrs. Asha Sircar was teaching in  Boys High School and their  two children Pankaj studying in Christian Medical College in Ludhiana, Punjab, and Ritesh, a student of B. Com were too young to receive her affection and love and  to exclude all other relatives. In sub para (f) of para-5, the will is alleged  to be forged.

2. In Testamentary Suit No. 5 of 1998 Mrs. Joyce Cynthia Prabhakar  and Mrs. Anita Simon have prayed for 'Letters of Administration' of the estate of Mrs. Edna Diamond Peters (the deceased)  alleging that she died intestate. The papers purporting to be the will of the deceased sent by Mr. A.S.K. Sircar by registered post to Mrs. Lalitha Francis, the daughter of the Mrs. Joyce Cynthia Prabhakar at Bangalore alleged to be executed by the deceased on 5.9.1994 and registered at the office of Sub Registrar, Chail at Allahabad,  appears to be a fishy document/shrouded in circumstances which are suspicious in the extreme besides being an unnatural will excluding all other heirs of the deceased. The signatures purporting to be of that of the  deceased do not appear to be genuine and that for two months the alleged executor did not file the  petition for probate. It is stated in para 4 of the plaint that apart from the plaintiff, the law applicable to Indian Christians namely Indian Succession Act No. 39 of 1925, the deceased had left behind   Mrs. Aruna Seetal;  Shunil Sircar (A.S.K. Sircar); Mr. Anita Simon and Ronald Sircar. The petition is contested by Shri A.S.K.  Sircar, who has filed objections/counter affidavit stating that the deceased was in a sound and disposing state of mind,  and had executed  the will dated 5.9.1994, before the her death. The Sub Registrar registered it on the same date. He is the executor named in the will and has filed  testamentary case for grant of probate.

3. The defendants in Testamentary Suit No. 13 of 1998 initially filed applications to dismiss the suit as it was not in accordance with the provisions of the Indian Succession Act and the Rules of the  Court,  and also filed interrogatories with regard to proof of the will and the details of the properties left by the deceased.  They also filed an  application for injunction. The prayer for injunction (A-18) was allowed on 13.7.1999. An interim injunction was granted restraining the plaintiffs from alienating any movable and immovable properties of the deceased till further orders of the Court. The application for interrogatories (A-14) was allowed only to the extent of disclosing the details of the properties including the bank accounts and fixed deposits and other securities in the custody of petition. A Special Appeal (A-13)against the order was dismissed and the review application was dismissed on 22.2.2000. On the same day the Court framed the following issues;

"(1) Whether the will executed by Mrs. Edna Peters on 5.9.1994 is valid?

(2) Whether the said Will has been executed by the Testatrix as her conscious and deliberate  act with full awareness of its implications in sound disposing state of mind?

(3)Whether the said will dated 5.9.1994 is a forged document?

(4)Whether the plaintiff of suit No. 13 of 1998 are entitled to probate of the said Will dated 5.9.1994?

(5) Whether the plaintiff of Suit No. 4 of 1999 are entitled to 'Letters of Administration' in respect of the Estate of Mrs. Edna Diamond Peters?"

4. The original will  dated 5.9.1994 was executed by the deceased before the Sub Registrar, First Allahabad. It was signed by the deceased and her thumb impressions were put on the will. Her photograph  appended on the first page was removed and asked by the Sub Registrar to be affixed on the last page of the will. The will was drafted by Pt. Kashi Nath, Advocate and was typed by Shri B.D. Agarwal 547, Malviya Nagar, Allahabad. It was witnessed by Shri P.K. Mehrotra, 40-B, S.P. Marg, Allahabad and Shri Kashi Nath, Advocate, 14 (Old) Elgin Road, Allahabad. It was produced on the first date when the case was filed and was directed to be kept in a sealed cover with the Registrar of the Court.

5. In order to appreciate the evidence led in the matter, the admitted pedigree  of the family is set out as follows;

Shri V.J.S. Seetal

______________________________________________________

From first wife From second wife

_______________________________                       ______________________

R.W. Seetal          P. Sircar                E. D. Peters J.C. Prabhaker A. Seetal

Son daughter daughter plaintiff in Suit (dead)

(died-1990) (died in 1991)        (died 5.1.1998) No. 5/98 and

Testatrix caveat-defendant

1 2 1 no. 1 in suit No. 13/98

Anita simon      R. Sircar A.S.K.           Ernest  Sircar    (Beneficiary)

(daughter) (son)       Sircar               (died in 1994)

Beneficiary                           (son)

(2nd caveator                        Petitioner-

objector) executor

    for

   probate in

   TS 13/98

          Rajiv         Asha          

                     Sircar        Sircar

     (Bene-       (Bene-

    ficiary)         ficiary)

        ___1____   2______

          Pankaj    Ritesh

(Bene-     (Bene-

ficiary)    (ficiary)

6. Shri A.S.K.  Sircar, the plaintiff in Suit No. 13 of 1998 has filed copies of letters dated 23.3.1998 sent by him to Mrs.  Anita Simon; Mrs. Lalitha Francis; Mrs. J.C. Prabhakar and Rajiv Sircar (A-33); letters dated 5.9.1986 sent by Mrs. Peters to the Collector, Allahabad (A-34); letter dated 4.5.1994 sent by Mrs. Peters to the District Magistrate, Allahabad (A-35); letter dated 24.3.1998 sent by Mrs. Peters to the District Magistrate (Nazul) Allahabad (A-36); declaration form furnished by Mrs. Peters to Urban Land Ceiling Authority, Allahabad in August 1976 (A-37); letter dated 30.11.1988 sent by Mrs. Peters to Assessment Officer, Nagar Mahapalika, Allahabad (A-38); letter dated 15.6.1994 sent by Mrs. Peters R.R.K. Sircar Mrs. R. Sircar regarding renewal of Lease-Plot No. 3 Rajapur Bandhwa to the District Magistrate, Allahabad (A-39); counterfoil pay in slips of S.B. Bank A/c 3588 from May 1995 (A-40); greeting cards sent by Mrs. Edna Peters to Mr. A.S.K. Sircar, Mrs. Asha Sircar, Mr. Ritesh Sircar and Pankaj Sircar (A-41); personal diary of Mrs. Peters maintaining personal A/c from January 995 to January 1998 (A-42); counter foils of cheques issued by Mrs. Peters from April 1994 to August 1997 in S.B. A/c 3588 with S.B.I. Rajapur (A-43); diary having list of Books read by Mrs. Peters from January 1994 written in her hand (A-44); letter of Mrs. Edna Peters to mother Teresa's Home, Allahabad (A-45);  medical prescription and reports pertaining to the treatment of Mrs. Edna Peters from 1994 to 1998 (A-46); letter of B.M. Rehan Share Brokers dated 31.7.1997 addressed to Mr. A.S.K. Sircar (A-47); certified copy of sale deed dated 6.7.1991 executed by Mrs. E.D. Peters in favour of Sri R.R.K. Sircar and others (A-48) and certified copy of sale deed dated 2.6.1994 executed by Mrs. E.D. Peters in favour of Sri A.S.K. Sircar (A-49).

7. The defendants in Suit No. 13 of 1998 filed documents namely greeting card (undated) to Smt. Anita Simon from deceased (A-52); greeting card from the deceased to Mrs. Anita Simon her mother Smt. Aruna Sheetal and her husband Mr. D. Simon (A-53); birth day greeting card dated 26th August, 1996 sent by the deceased to Mrs. Aruna Sheetal, mother of Mrs. Anita Simon (A-54);  birthday greeting card dated 26th August, 1995 sent by the deceased to Mrs. Aruna Sheetal; birth day greeting card (undated) sent  to Mrs. Anita Simon (A-55); wedding anniversary greeting card dated 30th October, 1989 sent by  the deceased to Smt. Anita Simon  and her husband together with a poem for the occasion written by the deceased (A-56); birthday greeting card dated September 6, 1997 from the deceased to Rohan Simon S/o Mrs. Anita Simon (A-57);  photographs (A-58) and Birth day greeting card (A-59). The   medical prescription of Dr. R.K. Agarwal (A-80) and dividend certificate of Reliance Industries Limited and other documents (A-81) have also filed at the time of evidence of DW-3.

8. Mr. A. S. K. Sircar, the plaintiff (executor of the will) in Testamentary Suit No. 13 of 1998 examined himself as PW-1; P.K. Mehrotra , the attesting witnesses of the will as PW-2; and  Dr. R.K. Agarwal, a physician as PW-3. Mrs. Joyce Cynthia Prabhakar examined herself as D2-1; Mr. Desmond Simon, husband of Smt. Anita Simon as DW-2 and Mr. Ronal Rajkumar Sircar as DW-3.

ISSUE NO. 1, 2 & 3

9. The will dated 5.9.1994 was executed by the deceased in presence of the Sub Registrar, First Allahabad, on the same day, and was witnesses by Pt. Kashi Nath, an Advocate and Sri P.K. Mehrotra P.W. 2 who was examined  as the attesting witness. Sri A.S.K. Sircar the plaintiff,  the executor of the will in Testamentary Suit No. 13 of 1998  prayed for grant of probate. The defendants Mrs. Joyce Cynthia Prabhakar  and Mrs. Anita Simon, the defendants, who has  filed caveat/objections to the grant of probate have challenged the execution of the will. In the objections filed in Testamentary Suit No. 13 of 1998 they have stated in paragraph 4 that the deceased never executed the will dated 5.9.1994. In the same paragraph it is stated that the deceased was not in a sound physical condition or in a sound state of mind on 5.9.1994. In para 5 (a) signatures of the deceased are alleged to be forged. In sub para (b) of para 5 the attestation is alleged to be fictitious and procured. In sub para ( c) and (d) the physical and mental state of the deceased has been stated to be such that she was suffering from  diabetes, angina and blood pressure  and was operated on both her eyes. It is  alleged that she had week vision and asked  her nephew and grand nephew for  reading and writing. She was extremely weak in  her legs which made it impossible for her to support her body and she used  a walker for almost 7-8 years prior to her death, and that after  the accident of her son, who  went in coma, and was  admitted in  medical college for three months and died in October 1993. She was totally shattered with her  mental and corporeal faculties already  considerably impaired due to age and ill health.

10. The caveator/defendants have  set up in consistent pleas. On one hand they have pleaded that the will is forged, and on other hand they say that the deceased  at the time of its execution was not in  sound and disposing mind. In Suit No. 5 of 1998 the same defendants  allege the will to be a fishy document/shrouded in circumstances which are suspicious in  examination besides being an unnatural will excluding all other heirs of the deceased.

11. Shri Dhruva Narain, learned counsel for the defendants was asked and  clarified the pleadings. He stated  that after the evidence has been led, he is not in a position to support the allegations of fraud and forgery and has proceeded to challenge the will as an unnatural bequest  which in the circumstances which could not have been made by the deceased. Elaborating his submissions, he stated that the physical condition of the deceased was such that the bequest cannot be said to have been made in sound and disposing state of mind. He has relied upon the law of proof of will in  H. Venkatachala Iyengar and others vs. B.N. Thimmajamma and others  AIR 1959 Supreme Court 443 (V 46 C 56), para 18 to 22 and para 33,  Shri Dhruva Narain submits that the ill health and the death of her only son had left the deceased totally shattered. Mr. A.S.K. Sircar, the nephew was arranging her finances. He took advantage of  her position. The husband of the deceased  had died in 1976,  and that after the death of her only child. Mr. Peters  was left alone. Shri A.S.K. Sircar prepared some papers and got her signatures, on which the will was prepared.

12. Inspite of the long and elaborate arguments, learned counsel for defendants could not specify the grounds to attack  the will. He kept on wavering between the allegations of forgery and fraud, and the physical and mental condition of the deceased which according to him  is relevant for sound and disposing mind for execution of the will.  Shri Dhruva Narain read  out  pages from  H. Venkatachala Iyengar's case,  which has been followed till date as a treatise on proof of will.  He read out the entire oral evidence to establish that the deceased was a loving, and caring woman and thus she could not have forgotten the other family members at the time of writing her will. She had no reason to be unfair to other relatives. He tried to explain in  great detail that the House No. 9/11 N.K. Mukerjee Road, Allahabad,  after sale of its portion to a society and some other persons, is a very valuable property is now valued at crores of rupees and that the bank accounts fixed deposits and other investments were minor legacies  and that leaving a small amount to other members of her family, servants and Missionary of Charity, makes the  bequest wholly unnatural,  which must be explained by the propounder to the full satisfaction of the Court.

13. Shri Dhruva Narain submits that the law governing proof of wills,  requires the  will to be proved like any other document complying with the requirements of Sections 67 and 68 of the Evidence Act. Sections 59 and 63 of Indian Succession Act, however, require that the writing and signatures must be proved as also its attestation by at least one attesting witness. The propounder must prove that the testator, at the relevant time, was possessed  of sound disposing mind and had executed the document on her own free will and accord and  that the execution of the will was a mental as well as physical act. Where the will is shrouded in suspicious circumstances,  unless the suspicion is  totally cleared the will  should not be probated. The bequest must satisfy court's conscience. Where the propounder had taken prominent part in the execution of the will under which he gets substantial benefits, the standard of proof is much higher. He has relied upon Ram Piari's case AIR 1990 SC 1742 (para 2 and 4) and Kalyan Singh vs. Chhoti AIR 1990 SC 396 (pr. 20) in which the Supreme Court held that where no reason for disinheritance of other heirs is given in the will, the same shall constitute suspicious circumstance. The propounder must give valid reasons and not sheer speculation. The court should look into the suspicious  circumstances as well as inherent improbabilities and that it is essential that trustworthy and unimpeachable evidence should be produced before the Court to establish genuineness and authenticity of the will.

14. Smt. Edna Diamond Peters (deceased) retired as a teacher from St. Mary's Training College, a reputed educational institution  at Allahabad. She was  a devote Christian. The books read by her in her last days detailed in para 4 of diary (Paper No. A-44) written by  Danielle Steel and Jeffery Arthor Barbara Cartland and others,  the accounts maintained by her, of her households purchases  from January 1995 to January, 1998  the month she died and the poem composed by her, and  sent to Smt. Anita Simon, her nice on 30.10.1989 shows that the deceased was highly qualified lady, fond of literature and poetry. She possessed a sharp mind and was  managing her affairs very well, till the end of her life.

15. The attesting witness Shri P.K. Mehrotra, DW-2  has entered the witness box to prove the will. He stated that he  was acquainted with the deceased since 1984. His house was only a furlong away from her house. The deceased had signed  the will before the Sub Registrar,  in his presence and  in presence of other witnesses. Late Pt. Kashi Nath, who was a leading lawyer in the civil court at Allahabad was the other attesting witness. The Sub Registrar had read out the document to the deceased  and had asked whether she  agrees to  whatever is written in the document. Mrs. Peters expressed her agreement. The Registrar then  asked her to sign. She signed on the document after which  the witnesses namely late Pt. Kashi Nath and Mr. P.K. Mehrotra signed.  The Registrar got the thumb impression of the testatrix and Shri P.K. Mehrotra. Pt. Kashi Nath was not asked to put his thumb impression. In the cross examination, Shri P.K. Mehrotra DW-2 stated that his wife was close to the deceased. He has signed on the affidavit filed along with the application for probate. He could not give the details of her health and the exact age of the deceased and stated that she was a teacher in Boys High School. He stated that on the date of the registration of the will  he along with Pt. Kashi Nath, Advocate and Mrs. Peters had gone to Registrar's office in the car of Mr. Sircar. At the time when the  document was being registered,  Mr. Sircar was  not  present in registrar's  office. It took about one and half hours to complete the process before the  Registrar.

16. Shri R.K. Agarwal, PW-3 is a prominent Heart Specialist of Allahabad. He is M.D in Cardiology and FRCS London and Edenberg. He retired as Head of Department, Cardiology from  Medical College, Allahabad  in 1995. He remembered that the deceased was his patient and that the prescriptions  produced in evidence (A-46/4-8) were written by him. She was suffering from diabetes and schemic heart disease and used to come to him whenever it was necessary in a month or two. On a few occasions, she had asked him to visit her residence. She was very weak and was accompanied on her visits by Shri Sircar or his wife . He identified Mr. A.S.K. Sircar sitting in the Court as the  same Mr. Sircar, who used to bring her to his  clinic.

17. Dr. R.K. Agarwal, PW-3 stated with confidence that he had not treated her before 1994, as in the first prescription he had not written anything about her medical history, which  he always writes on the back of the prescription. He stated that the deceased was not suffering from any mental depression or disturbance. She was in good mental condition and he did not find any affect of her illness  on her mental condition. On a question being asked about the  death of her only son Dr. R.K.  Agarwal stated that he had not heard at that time that her son had died in an accident. If her son had actually died,  he could have made out the difference from her conversation. He then said on his own, that he did not remember that the death of her son was referred to during the period of her illness.

18. Mrs. Joyce Cynthia Prabhakar, DW-1 step sister of the deceased stated that her father had four properties, (1)t at N.K. Mukerjee Road, Rajapur where she lived;  (2)  19 Stanley Road, Allahabad; (3) 18 Muir Road, Allahabad, and (4) a house at Mussoorie. In the year 1974 her brother went to live in the house at Stanley Road.  Her eldest sister Mrs. Sircar's husband lost his job which he had at Kanpur, and came to live at Allahabad along with his family. He stayed with her father. One of her sons Sunil Sircar, the younger one  went to stay with her sister's friend namely Mrs. Maud Dutt, and that she looked after him  and  more or less adopted him. He severed all his connection with his family. Mr. Sircar had two sons,  Ronald Rajkumar Sircar and Arnold Sunil Kumar Sircar. The deceased married in December 1953 to Mr. Allan Peter. She lived with her father,  till her marriage and thereafter  she moved to stay with her husband at Stanley Road.  She had a child Ernest Peter. Mr. Allen Peter died in  October 1966, and then she moved to 9 N.K. Mukerjee  Road, Rajapur, Allahabad where her brother, his wife and their daughter were living. Mrs. Sircar died in the year 1991, till then  she was living in that house. After Mrs. Sircar died, Mrs. Peter  was living with Phylis Sircar's eldest son Ronald Sircar and his family who were living in another portion of that house at 9 N.K. Mukerjee Road. They were living with the deceased  at 9 N.K. Mukerjee Road.  The witness stated that her  maiden name is  Joyce Sheetal. She married Mr. Cyril Prabhaker April 15, 1955. Her husband was a South Indian from Madras and was doing coffee plantation at Chikmangaloor. After marriage she continued to visit Allahabad, once, if not twice, every year till her father's death in 1965,  to attend functions and marriages. She came to her sister Edna's cataract operation in 1974 and also when she was very sick with lung disease and when Edna's son met with an accident in 1993, she came with her daughter and stayed with her sister. Last time she had come  on her 78th birthday in 1997.  Mrs. Peter had a few friends, they were Rita Rudra, Ms. Gonsalves, Marjorie Trestler. The other names are Mrs. Bansal and the family of Justice J.M.L. Sinha who looked  after her. Justice Sinha lives next door to Mrs. Peters in the plot they purchased from Mrs. Peter. She had never heard the name of V.K. Mehrotra or Mrs. Mehrotra visiting her sister. After coming from Kanpur Mr. Sunil Sircar lived  at 9 N.K. Mukerjee Road for about six months and then moved to Mrs. Maud Dutt's house where he is living even today. He never came back. He was looked after by Mrs. Maud Dutt. Mr. Sunil Sircar married  Asha, the niece of Mrs. Maud Dutt.  Mrs. Peter did not recover from the shock on the death of her son. When she spoke to Mrs. Peter and asked her in 1997,  whether she made a will she had said "No", on which she advised  her to make a will. She received a photostat copy of the will  from Mr. Simon Sircar by which almost the entire assets of Mrs. Peters were bequeathed to the wife and two sons of Mr. Sunil Sircar.

19. The witness further stated that her sister would never have made such a will in her sound mind. She should have given to all other relatives and that  she had good relation with all of them. She did not know whether a sum of Rs. 80,000/- was spent by Sunil Sircar on the treatment of Mrs. Peter's son, when he was in coma in Medical College. She stated that she had given Rs. 20,000/-  for his treatment and that her sister should have had enough money for the treatment of her son. Ronald Sircar continued to live in the same house after the death of her son. She was alone and wanted  Ronald Sircar to live there. The relations  of Ronald with Mrs. Peter  was very cordial. Her eyes were weak and she could  read only when the written material was brought close to her eyes. Her legs were also very weak.

20. In the cross examination, the witness stated that her father married twice. She and her younger brother are from the second wife and other sisters and brother are from first wife. Her husband expired in 1986. He was a coffee planter  and owned a estate. Until her husband's death, the total turn over was about Rs. 50 lacs per year. After her husband's death she and her son-in-law are looking after coffee plantation and her current status is the same as before. It is wrong to say that there are virtually no assets. On her father's death Mr. Phylis Sircar inherited her father's properties at Mussorrie which she bought from her sister in the year 1965 - 1966 and sold in 1982 - 1983. She had good relations with her family members from the  father and mother's side  including her niece. She came to visit her sister 8 to 10 times at Allahabad after her father's death. She did not remember the doctor who operated her sister for cataract at some nursing home. She did not know the name of doctor who had treated  Mrs. Ernest Peters. She stayed for about two months at Allahabad at that time. She did not know, who was the personal physician of Mrs. Peter. During her stay Mrs. Peter did not go to any doctor. She was a diabetic patient and was having old age problems. She used to discuss  her health but everything seemed to be under control. She had come in September 1997 for last time during the life time of Mrs. Peter. To quote some of the  answers given by her in the cross examination;

"I came for the last time in September 197 during the life of Mrs. Peter. At that time she seem to understand what I was saying to her. I do not know but evidently she made a will. I know where Mr. Sunil Sircar resides but the actual distance I do not know. He resides just outside the compound of Mrs. Peter. I am not aware about the sale deed executed by Mrs. Peter to Mr. Ronald Sircar in respect of a plot of land in the same compound. I never saw the sale deed. I enquired from Ronald, who said. he had bought the land."

21. Mr. Desmond Simon, DW-2 is husband of Smt. Anita Sheetal now Simon niece of the deceased.  Mr. Desmond Simon  made the same deposition as Mr. J.C. Prabhaker and further stated that the house is a big house and has a big compound, a part was sold to a housing society and the other portion to Mr. Ronald Sircar. In the portion sold to the Society, several houses have come up such as houses of Mr. Justice J.M.L. Sinha, Mr. Bansal and Mr. A.B.L. Gaur. Mr. Ranjeet Shome lives across the road in front of the house of Mrs. Peter. He is an Advocate and used to visit her house.  Ernest Peters died as a result of accident in which he sustained injury in the back of his head and went in coma. He was admitted to S.R.N. Hospital, Allahabad where her mother Mrs. J. Prabhaker used to look after him. The witness stated that he and his wife and mother-in-law used to visit the Hospital to see Ernest Peters. Mrs. Ernest Peter had enough money and she could bear the  entire expenses of the hospital. To a question whether Sunil Sircar paid Rs. 80,000/- to Mrs. Peters, the witness said that she was not aware  of it and that Mrs. Peters had never mentioned about it.

22. Mr. Ronald Rajkumar Sircar, the elder brother of the plaintiff examined himself as DW-3. He stated that Mrs. Edna Diamond Peters, the deceased, was her real mother's sister and was also his Godmother. In Christian religion when a child is born, two God fathers and one God  mother is appointed for every child. Before appointment as God father or God mother permission is taken from such person and they have to take oath that if child's father and mother died or becomes poor, they will take over the responsibility of the child. After the child grows up, he has to perform the same responsibility towards his God father and God mother. The witness stated that he is living in the same house since 1960. The out house was demolished for new constructions in which his son and wife were living. Mrs. Peters was a widow. Her husband died in 1966. She was being looked after by him and his wife. A maid servant was used to attend to her for a short time. Mrs Peter's son died in 1995 in an accident in which he was in coma for three months and was confined to hospital. My mother's sister lives in Chikmangaloor. She had come here after one month of the  accident. She used to stay in hospital in night and during the day Mrs. Peter stayed with him. Mrs. Peter and Smt. Prabhaker had met the expenses of his treatment for medicines. Mrs. Peter used to give him either cash or cheque. Mrs. Prabhaker spent about Rs. 25,000/- for treatment. In her cross examination on 12.4.2004, he stated that after A.S.K. Sircar shifted, he had no connections with his mother and other members of the family. He did not take much care of his mother and father  during their illness and used to come to the house  as a visitor. He stated that he had no knowledge whether A.S.K. Sircar had spent Rs. 80,000/- on the illness of son of the deceased. Mrs. Prabhaker had spent Rs. 50,000/- . Apart from that Mrs. Peters had sufficient amount in her bank account and used to withdraw by cheques. On a question whether her relations with Mrs. Peters  deteriorated as he had not shifted even after purchase of her plot, the witness stated that he had constructed a six-room house but Mrs. Peters did not allow him to shift as she felt that she would be left alone. She had completely broken down physically and mentally after the  death of her son.  The witness admitted that Dr. R.K. Agarwal was her family physician and he was called on marriages and other occasions. To a question whether he had ever taken Smt. Peters to Dr. Agarwal, he replied in negative and stated further that he used to call Dr. R.K. Agarwal for visits at their house. He does not remember whether he was present when Dr. R.K Agarwal had visited to Mrs. Peters.

23. Mr. Ronald Sircar DW-3 further stated that Mrs. Edna Dimond Peters was M.A and had retired from St. Marry Training College, Allahabad. Prior to that she was teaching in Marry Wanamaker. His father was Principal of Christ Church College, Kanpur. His services were terminated on account of some case, the details of which he does not remember. The financial condition of the family was quite comfortable. His mother joined Boys High School and father got service in Agarwal Automobiles as a  Manager in workshop and sales and started living at 9 N.K. Mukerjee Road, Allahabad. After some times Mr. A.S.K. Sircar went to live  with Mrs. Dutt who was their mother's friend. At that time  A.S.K. Sircar was about 16 years old and his expenses were met by Mrs. Dutt. Her mother and father died in 1965 and that after about one year Mrs. Peters' husband died and then she also lived at  9 N.K. Mukerjee Road and then he also  lived in that house.

24. Shri Dhruva Narain submits that following circumstances, raise strong suspicions which have not been removed by the propounder;

a) Almost the entire assets have been bequeathed to A.S.K. Sircar's wife and elder son Dr. Pankaj. Even the younger son gets money deposit in Kanpur account;

(b) Mrs. Joyce Prabhaker and Mrs. Anita Symon have been given 20% of the residue assessed by the propounder at Rs. 20,600/- each. Shri R.R.K. Sircar gets nothing and son gets Rs. 20,600/- so does Mrs. Lalitha Francis, d/o Mrs. Prabhakar;

( c) No reason has been assigned to deny the benefit to those who were entitled to the bounty of the testator as they had similar claims on her. This shrouds the disposition with suspicion;

d) Mr. A.S.K. Sircar took active part in execution of will namely he got the will drafted from Pt. Kashi Nath Tripathi who had acted as counsel for him. He arranged for attesting witnesses. Pt. Kashi Nath Tripathi and Shri P.K. Mehrotra who were acquainted with him when A.S.K. Sarkar was manager of Bank of India, Malviya Nagar, 4 to 5 years before coming to live on S.P. Marg in 1983;

(e) The attesting witnesses had no knowledge of the deceased family. He has called  Anita Simon, sister's daughter of the deceased as A.S.K. Sircar's mother-in-law. He does not know when the husband of the deceased died and also did not know whether he lived with the deceased. He says he was regular visitor at the residence of the deceased yet never enquired about her and thus he is a total got up witness of the propounder;

(f) On the day of registration, the propounder never informed the attesting witness in the morning that execution and registration was to take place on that day and took the testatrix and the two attesting witnesses to Sub Registrar's office in his own car;

(g) The other attesting witness Pt. Kashi Nath Tripathi was not produced in the witness box;

(h) The testatrix's mental condition was not such as to have acted in execution of the disputed will and that notwithstanding the attempt of Dr. R.K. Agrawal  he admitted that if the only child of the deceased had died in tragic accident, he could not have assessed from her conduct, behaviour and conversation;

(i) It is true that Mrs. Peters died after  three years and four months after execution of the will but only if  she had knowledge of the will she  could have considered. The propounder has not press that she had knowledge of the execution of the will. On the contrary other witnesses have said that she had no knowledge of the same;

(j) The propounder took possession of all her papers and her  diaries but none of these documents even vaguely suggest that the will was executed by the deceased and that she had never spoken of executing the will to any one;

25. Shri Dhruva Narain, learned counsel for the defendant in Suit No. 13 of 1998 has laid great emphasis on the fact that the plaintiff left the house when he was 16 years old and was looked after by Mrs. Dutt-her mother's friend and had married the niece of Mrs. Dutt According to Shri Dhruva Narain, the plaintiff then became a stranger to the family. He was an officer in Bank and mostly lived away from Allahabad and in the circumstances, it was not natural for the deceased to have made bequest of a large portion of her property in favour of his wife and sons.

26. Shri Navin Sinha, learned Senior Advocate appearing for A.S.K. Sircar the plaintiff in Testamentary Suit No. 13 of 1998 and defendant in Testamentary Suit No. 5 of 1998 assisted by Shri P.K. Ganguli, Advocate  submits that the execution of the will has been proved in accordance with the law. The propounder and the attesting witness have proved by the documentary and oral evidence that the will was prepared on the instructions of the deceased. The recital in the will go to show that the deceased was in full control of her capacities to execute the will. She has not forgotten her relatives and made provisions for them as well as also for servants by name  and 'Sisters of Charity'. The physical and mental capacity of the testatrix was proved by Dr. R.K. Agarwal, the family physician who used to attend the deceased. The will was executed before the Sub Registrar who had read out the will to the deceased and that she understood the contents thereof and had signed on the will. Her thumb impressions were also put on the will, and thereafter the attesting witnesses had signed the will. Shri Sinha submits that though the propounder has not taken any active part in execution of the will, all circumstances, which have been alleged to be suspicious circumstances by the defendants have been removed by cogent and reliable evidence. The deceased  lived an  active life till her death. She used to compose poems, writes books and write her accounts with precision. The will was executed almost one year after the death of her son and that she died after about three years of the execution of the will during which period  if there was any doubt in her mind, she could very well have cancelled the will. The  other relatives were very well placed in life and specially Mrs. Joyce Cynthia Prabhakar who is the richest amongst the family members. In any case she had remembered her relatives and had made provisions for them in her will.

27. Shri Navin Sinha has relied upon Ramabai Padmakar Patil (dead) through LRS and others vs. Rukminibai Vishnu Vekhande and others (2003) 8 SCC 537 in which relying on P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar, 1995 Supp (2) SCC 664; Pushpavathi v. Chandraraja Kandamba (1973) 3 SCC 291 and Ravindra Nath Mukherjee v. Panchanan Banerjee (1995) 4 SCC 459 the Supreme Court held that is it true that a propounder of the will has to remove all suspicious circumstances. Suspicious means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstances, especially in a case where the bequest has been made in favour of an off-spring. The will in the case before the Supreme Court, was executed before the Sub Registrar and that Smt. Yamunabai the testatrix lived for  three years and nine months after the execution of the will. The Supreme Court, thus, held as follows;

"The fact that Smt Yamunabai was hard of hearing or that she was unable to walk does not lead to an inference  that her mental faculties had been impaired or that she did not understand the contents of the document which she was executing. It is important to note that Smt. Yumunabai personally came to the office of the Sub Registrar and her death took place after a considerable period i.e. 3 years and 9 months after the execution of the will. No evidence has been adduced by the defendants to show that at the time of the execution of the will she had been suffering from any such ailment which had impaired her mental faculties to such an extent that she was unable to understand the real nature of the document which show was executing."

28. In Uma Devi Nambiar and others vs. T.C. Sidhan (dead) (2004) 2 SCC 321 the Supreme Court again spoke in para 16 that the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more cannot be held to be a suspicious circumstances specially in a case where the bequest has been made in favour of offspring. There must be real, germane and valid suspicious circumstances and not fantasy of the doubting mind. If the propounder succeeds in removing the suspicious circumstances, the Court has to give the affect to the will,  even if the will might be unnatural in the sense  that it has cut off wholly or in part near relatives.

29. In Ravindra Nath Mukherjee v. Panchanan Banerjee  (supra) the registered will was made by a 90 years old lady depriving her natural heirs. She was identified before the Sub Registrar who had explained the contents to the testatrix. The Supreme Court allowing the appeal and setting aside the judgments which had disbelieved the will held that the deprivation of natural heirs should not raise  suspicion, because a mere idea behind execution of a will is to interfere with the normal line of succession. The natural heirs would be debarred in every case of will; of course, it may be that in some cases they are  fully debarred and in others,  only partially.  It was held that where a will was registered and Sub Registrar certifies that the same had been read over to the executor, who, on doing so, admitted the contents, the fact that the witnesses to the document are interested losses significance. The document was registered and it is on record that the Sub-Registrar had explained the contents to the old lady. So, the Supreme Court did  not find the third circumstance that the witnesses were interested in executor,  as suspicious on the facts of the case. The testatrix a old lady had executed the will before the Sub Registrar, who, it is come in the evidence, had explained the contents to her.

30. Shri Navin Sinha is correct in submitting that the allegations of fraud, as have been suggested by Shri Dhruva Narain in this case,  must be precise and provide specific details of the allegations. The defendants should not raise some suspicions and plead doubts. He has rightly relied upon Bharat Dharma Syndicate, Ltd. vs. Harish Chandra AIR 1937 Privy council 146; Bishundeo Narain & another vs. Seogeni Rai and others AIR (38) 1951 SC 280 in which the Courts had turned down the plea of fraud, undue influence and coercion on the ground that  the plaintiff  did not set forth full particulars of such allegations and had only made general allegations which were held to be insufficient. Shri Sinha has relied upon Den vs. Vancleve (2) Southard at p. 660 cited in Banks vs. Goodfellow, (1870) LR 5 QB 547,  further quoted in Kanwar Sain v. State AIR 1976 Delhi 11, defining  the term 'a sound and disposing mind and memory' as follows;

"By the terms 'a sound and disposing mind and memory' it has not been understood that the testator must possess these qualities of mind in the highest degree; otherwise, very few would make testaments at all; neither has it been understood that he must possess them in as great a degree as he may have formerly done, for even this would disable most men in the decline of life; the mind may be in some degree debilitated, the memory may have become in some degree enfeebled and yet there may be enough left clearly to discern and discreetly to judge of all those things and all those circumstances which enter into the nature of a rational, fair, and just testament. But if they have so far failed as that these cannot be discerned and judged of then he cannot be said to be of sound and disposing mind and memory."

31. The parties are catholic Christians. Shri Navin Sinha submits that the duties of their God father and God mother become obligations of the child, to take care of their God parents in old age. He  has cited 'The Code of Canon Law', Book III, the Teaching Office of the Church Part-II Catecheticai Formation Can. 774 (2);

"(2) Before all others, parents are bound to form their children, by word and example, in faith and in Christian living. The same obligation binds godparents and those who take the place of parents."

32. The oral evidence of Shri Ronald Sircar, it is submitted lacks particulars as to how he and his family had taken care of the deceased. A few prescriptions of medicines on which he did not  spent any money, is the only evidence of care that he and his family had taken of the deceased. Further Dr. R.K. Agarwal did not remember that Mr. Ronald, who in his statement deposed that Dr. R.K. Agarwal was his family physician,  had ever brought the deceased to his clinic or was present when  he had visited the deceased. Shri Sinha submits that  Ronald Sircar and his family were the immediate neighbors of the deceased living in the same compound but they hardly took care of her when she was in need both at the time of tragic accident of her son and thereafter, till she died.

33. The will has been proved by the attesting witness who had seen, the testatrix sign the will after it was read out and explained to her by the Sub Registrar and then the other two witnesses  signed  it before the testatrix. The document was registered on the same day. Though the presumption attached to the registered document is not available to the will as it has to be proved in accordance with the Section 68 of the Evidence Act and Section 63 of the Indian Succession Act. The fact that the will was executed before the Sub Registrar an officer entrusted with the duties to register the documents required to be registered, who had read out the will to the deceased attaches greater sanctity to the document. The defence witnesses have no where denied that  the deceased did not go to the Registrar's office and had not put her signatures on the will. The witnesses have not challenged her signatures,  nor any expert witness was called to deny it. In fact the  execution of the will has not been denied at all. Further, I find that there is no evidence nor even a suggestion that any undue influence or coercion was exercised upon the discretion of the testatrix in making the bequest. There is no evidence at all that she was put under pressure or that the propounder had exercised any on influence on her or had misled her in making the bequest.

34. This leaves the Court with only one question as to whether the deceased was in such a state of health and mind where she could have  lost her discretion. The will was  executed almost one year after the death of her son. The documentary and oral evidence has established that even after the death of her son, the deceased was managing her affairs quite well. Dr. R.K. Agarwal, an imminent doctor and a familiar physician treated her and  certified that she did not possess  such physical or mental infirmity which may have reduced her capacity to understand her affairs. Although Dr. R.K. Agarwal did not remember whether her son died in an accident which is rather strange as he is admittedly  the  family  physician, he was quite clear, while proving his prescription that the deceased was not suffering from any such incapacity of body and mind.

35. The letters written by the deceased; the diary maintained by her and the accounts kept by her of her households expenses in a  neat and clear hand writing with correct calculation from January 1995 to January 1998, when she died, clearly demonstrate that she was possessed of sharp, intellect, and capable of understanding her affairs. Her bequest does not show that she had forgotten other relatives. Shri Dhruva Narain could not explain the statement of Sri Ronal Sircar, the elder brother of the plaintiff, in his examination-in-chief in which he remembered his conversation with the deceased in which she had told him  that she will give her property to Mrs. J.C. Prabhaker as she is well off and will not sell the house, and the remaining cash and jewelery will be distributed by her to the nephews and nieces,  and in case Smt. Prabhaker is not willing to take the house as she is living in South, she will give it to the  Sister's of Charity. This statement about her desire is not  convincing that any such conversation had taken place. Learned counsel for defendant could not explain  the statement as to why the deceased wanted to give the house to the richest member of the family, and  that if such member did not accept it, she will  give it away in charity to Sisters of Charity,  which obviously would have excluded   the other heirs.

36. In H. Venkatachala Iyengar's case Justice P.B. Gajendragadkar spoke in para 20 that there may be cases in which the execution of will may be shrouded in suspicious circumstances. The signatures may be very shaky and doubtful and evidence in support of the propounder's case may not remove the doubts. The condition of testator's mind may appear to be very feeble and debilitated; the evidence adduced may not succeed in removing the legitimate doubts as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair; the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testatrix.  In para 22, the Supreme Court quoted with approval the observations of Lord Du Pareq in Harmes vs. Hinkson, 50 Cal W N 895: (AIR 1946 P C 156) "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth.". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open through vigilant, cautious and circumspect..

37. The will speaks from the death of the testator. The deceased has departed and no one can tell as to what was in the mind of the testatrix while she was made the will. The Court, therefore, has to rely upon the circumstances attending the  will, the possibility of any coercion and her mental condition. In the present case the defendants have not placed on the will any such unnatural improbable or unfair circumstances which may impeach the bequeath.

38. Having gone through entire documentary and oral evidence and having considered all the circumstances in which the deceased, an old lady teacher was placed at the end of her life and further the facts that the will was executed before the Registrar duly proved by one of the attesting witnesses, and that the testatrix had lived for more than three  years after the execution of the will, within which there were no such circumstances which may have prevented her from revoking the testament if she had intended to execute it, I find that the propounder has removed all the alleged suspicious circumstances which have been unreasonably loaded by the defendants over the will, and has proved the last testament  of the deceased to the conscience of the Court.

39. Issue No. 1 and 2 are thus decided in favour of   A.S.K. Sircar the plaintiff in Testamentary Suit No. 13 of 1998 and issue No. 3  against the defendant. The will is held to be validly executed by  Mrs. Edna Dimond Peters,  the deceased  on 5.9.1994 in her sound, disposing mind, conscious and fully aware of its implication before the Sub Registrar, Allahabad.

ISSUE NO. 4

40. On the  findings recorded on Issue No. 1, 2 and 3  Suit No. 13 of 1998 is liable to be decreed and  Mr. A.S.K. Sircar the plaintiff in the Suit is entitled to the probate of the will dated 5.9.1994.

ISSUE NO. 5

41. On the findings on Issue No. 1, 2 and 3,  the will has been proved to be duly executed and attested in the sound and disposing mind by the deceased of which the plaintiff in Suit No. 13 of 1998 is the executor. The Suit No. 4 of 1999 by step sister and sister's daughter for 'Letters of Administration' after declaring the will to be invalid is  liable to be dismissed.

42. The Suit No. 13 of 1998 is accordingly decreed and Suit No. 5 of 1998 is dismissed. The probate of the execution of the will dated 5.9.1998 is directed to be issued to Mr. A.S.K. Sircar the plaintiff on payment of court fees  to the satisfaction of the Registrar General and upon due  execution of the  Administration Bonds, in accordance with the Rules of the Court. The plaintiff in Suit No. 13 of 1998 is also entitled of the cost of the entire proceedings from the defendants as well as the costs of Suit No. 5 of 1998.

Dt.18.4.2006RKP/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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