Madras High Court
G.Sivaprakash … vs G.Thilak Thiyagarajan … on 29 October, 2021
TOS No.16 of 2002
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.10.2021
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
T.O.S. No.16 of 2002
G.Sivaprakash … Plaintiff
Vs.
G.Thilak Thiyagarajan … Defendant
Prayer : Plaint filed under Sections 222 and 276 of the Indian Succession
Act XXXIX of 1925 for the grant of Probate.
For Plaintiff : Mr.G.Rajagopalan, Senior Counsel
for M/s.G.R.Associates
For Defendant : No appearance
JUDGMENT
The plaintiff seeks Probate in respect of the Will dated 09.05.1996
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TOS No.16 of 2002
executed by his father Late Dr. T.Ganapathy, who died on 03.06.1996
leaving behind three sons and a daughter. His wife had predeceased him.
2. According to the plaintiff, the testator Late Dr.T.Ganapathy, was in
sound disposing state of mind when he executed the Will on 09.05.1996 and
it was attested by two attesting witnesses of whom, one was his very close
associate Dr.T.Kamalsheriff. The other was also a Doctor who was a family
friend, who happened to be a classmate of the first respondent Dr.Udesh
Ganapathy, son of Late Dr.T.Ganapathy. It is also claimed that the Will
refers to another Will dated 22.02.1995, in and by which, the testator had
bequeathed his house property at Tambaram in favour of the eldest son, the
defendant herein, Mr.G.Thilak Thiyagarajan.
3. The original Petition for grant of Probate was numbered as OP
No.174 of 1997 and upon a caveat having been filed by the second
respondent namely G.Thilak Thiyagarajan opposing the grant, the same was
converted into a Testamentary Original Suit. The defendant filed a written
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TOS No.16 of 2002
statement disputing the execution of a Will and claiming that he had the
copy of the Will which was sent to him along with the notice of the counsel
dated 15.07.1996 referred to an expert for his opinion and according to him,
the Will is not validly executed by the testator.
4. This Court framed the following issues for trial:
1. Whether the deceased Dr.T.Ganapathy
executed the Will dated 09.05.1996 while he was in a
sound and disposing state of mind and in the presence
of attesting witnesses;
2. Whether the Will dated 09.05.1996 is a
genuine, true and valid document;
3. Whether the allegations made by the
defendant that the above said Will dated 09.05.1996
was obtained by fraud and undue influence are true;
4. To what reliefs the parties are entitled to?
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TOS No.16 of 2002
5. At trial, the plaintiff was examined as P.W.1 and the first
respondent Dr.Udesh Ganapathy, was examined as P.W.2. The two
attesting witnesses were examined as P.W.3 and P.W.4 respectively.
Exhibits P1 to P7 were marked on the side of the plaintiff. On the side of the
defendant, he was examined as D.W.1 and Exhibits D1 to D16 were
marked. Some of those exhibits were marked in cross-examination of P.Ws.
1 & 2.
6. When the Testamentary Original Suit was posted for arguments,
the learned counsel for the defendant reported no instruction. Since the
entire evidence of the defendant is already on record. I proceed to dispose
of the suit on merits, in terms of Explanation to Rule 2 of Order XVII of the
Code of Civil Procedure.
Issue Nos.1 & 2:
7. These issues relate to the execution of the Will by Late
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TOS No.16 of 2002
Dr.T.Ganapathy. It is not in dispute that Late Dr.T.Ganapathy, was a
professor of Social and Preventive Medicine in Madras Medical College
and was a Doctor of repute. Both the attesting witnesses are qualified
Medical Practitioners. The second attesting witness Dr.T,Kamalsheriff,
who was examined as P.W.4, is aged about 70 years at the time of his
examination and he had worked with Late Dr.T.Ganapathy, during his
lifetime. Both the attesting witnesses have spoken about the execution of
the Will by Late Dr.T.Ganapathy, in their presence and in sound disposing
state of mind. Though both of them have been cross-examined extensively,
their evidence with regard to the execution of the Will and the state of mind
of the testator has not been discredited in any manner in cross-examination.
The cross-examination runs to several pages, but the witnesses have been
consistent in their evidence with reference to the execution of the Will by
Late Dr.T.Ganapathy, in their presence and their signing the Will in his
presence. The statutory requirements of Section 68 of the Evidence Act,
have been sufficiently met by the evidence of P.W.3 and P.W.4.
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TOS No.16 of 2002
8. P.W.1 and P.W.2 the beneficiaries under the Will have also been
cross-examined with reference to various matters which do not have a
bearing on the execution of the Will and the state of mind of the testator. I
therefore do not think that I should detail on the oral evidence of P.Ws. 1 &
2 which, in my considered opinion, does not have a bearing on the issue that
is raised namely the due execution and attestation of the Will. In view of
the above, both issues Nos. 1 & 2 are answered in favour of the plaintiff.
Issue No.3:
9. Though the defendant had claimed that the Will was obtained by
fraud and undue influence, I do not see any evidence in support of such
plea. The details of fraud or undue influence have not been set out in the
written statement. Order VI Rule 4 of the Code of Civil Procedure requires
the defendant who pleads fraud to set out the details of fraud. The same has
not been done. Apart from the absence of details, the evidence is also
wholly insufficient to support the said plea of fraud. Hence Issue No.3 is
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TOS No.16 of 2002
also answered against the defendant in favour of the plaintiff.
10. In fine, the suit is decreed as prayed for. Probate will be issued to
the plaintiff in respect of the Will dated 09.05.1996. No costs.
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Index: No
Internet: Yes
Speaking order
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TOS No.16 of 2002
List of the Witnesses examined on the side of the Plaintiff :
1. P.W.1 G.Sivaprakash
2. P.W.2 Dr.Udesh Ganapathy
3. P.W.3 M.K.Rajasubramanian
4. P.W.4 Dr.T.Kamalsheriff
List of Exhibits marked on the side of the Plaintiff :
Sl.No. Exhibits Description of documents
1 Ex.P1 Original Will dated 9.5.1996 executed by my father
Dr.T.Ganapathy
2 Ex.P2 Original Death Certificate of my father dated 3.6.1996
3 Ex.P3 Legal heir certificate dated 01.08.2012
4 Ex.P4 Original legal notice dated 15.07.1996 issued by the
defendants 2 and 3
5 Ex.P5 Office copy of the reply notice dated 18.7.1996
Ex.P6 Certified copy of the family arrangement dated
6 19.11.97
Ex.P7 Certified copy of the order dated 2.9.1999 made in
List of the Witnesses examined on the side of the Defendant:
D.W.1 G. Thilak Thiyagarajan
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TOS No.16 of 2002
List of Exhibits marked on the side of the Defendant:
Sl.No. Exhibits Description of documents
1 Ex.D1 The minutes of the Board Meeting Resolution passed
by circulation on 11.7.94
2 Ex.D2 Photocopy of the Will certified by the plaintiff's
counsel the enclosure
3 Ex.D3 Copy of the letter dated 2.6.97
4 Ex.D4 Copy of the letter dated 14.6.97
5 Ex.D5 Copy of the affidavit and petition and plaint in
I.A.No.11478/96 in O.S.No.10452/96
6 Ex.D6 Original letter without date
7 Ex.D7 Certified copy of the affidavit of attesting witness
Ex.D8 Certified copy of the affidavit of attesting witness dated
8 10.1.1997
Ex.D9 Identity card of Dr.T.Ganapathy father of the defendant
9 dated 4.7.1983
Ex.D10 Certified copy of the Will dated 24.2.1995 executed in
10 favour of the defendant
Ex.D11 Office copy of the rejoinder notice by the defendant's
11 counsel dated 7.10.1996
Ex.D12 Original letter dated 10.9.1998 sent by Dr.Udesh
12 Ganapathy to Nagarathina Textiles Pvt Ltd.,
13 Ex.D13 Legal notice dated 19.9.1998
14 Ex.D14 Original letter of intimation dated 16.10.1998
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TOS No.16 of 2002
Sl.No. Exhibits Description of documents
Ex.D15 Original letter dated 1.11.2004 sent by defendant to the
15 plaintiff
Ex.D16 Certified copy of details of Nagarthina Textiles Pvt
16 Ltd.,
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To
The Sub Assistant Registrar,
Original Side,
High Court, Madras.
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TOS No.16 of 2002
R.SUBRAMANIAN,J.
jv
T.O.S. No.16 of 2002
29.10.2021
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