Madras High Court
S.Loganathan vs Mr.Sekar on 29 April, 2022
T.O.S.No.23 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.04.2022
CORAM:
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
T.O.S.No.23 of 2015
S.Loganathan ...Plaintiff
Vs.
1.Mr.Sekar
2.Mr.Kumar
3.S.Rani
4.Mr.S.Rajendran
5.Mr.S.Deenan
6.K.Saravanan
7.G.Geetha
8.S.Selvaraj
9.R.Mohan (minor)
10.R.Sathish (minor)
11.Mrs.Datchayani
12.Mrs.Jayalakshmi
13.Mrs.Jayashree
14.Mrs.Jayanthi
15.Mrs.Vijayalakshmi ...Defendants
(D1(Mr.Sekar) died D5 is recognized as legal heir of D1, D11 to D15
impleaded as legal heirs of D1 directed by this Court.)
1/21
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T.O.S.No.23 of 2015
Prayer: Petition filed under Sections 232 and 276 of the Indian Succession Act
XXXIX of 1925 for the grant of Letters of Administration. Against this petition
th
a Caveat was filed on the 7 day of January 2014 by the Caveators above
th
named. The supporting affidavit was filed on 7 day of January 2014. As per
order of Court dated 15.06.2015 in O.P.No.55 of 2013 the Original Petition is
directed to be converted into Testamentary Original Suit.
For Plaintiff : Mr.C.Umashankar
For Defendants : Mrs.D.Uma Devi for D3 to D10
JUDGMENT
This petition has been filed under Sections 232 and 276 of the Indian
Succession Act XXXIX of 1925 for the grant of Letters of Administration.
th
Against this petition a Caveat was filed on the 7 day of January 2014 by the
th
Caveators above named. The supporting affidavit was filed on 7 day of
January 2014. As per order of Court dated 15.06.2015 in O.P.No.55 of 2013 the
Original Petition is directed to be converted into Testamentary Original Suit.
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T.O.S.No.23 of 2015
2.The plaintiff submitted that R.Subramanian son of late Rajabadar
Thambirar died on 22.08.2008 at the time of death, he left property in Madras
within the jurisdiction of this Court. The writing hereto annexed and marked as
"A" is his last Will and Testament, the said Will was duly executed at Chennai
on 30.10.2006 registered at S.R.O. Kodambakkam in Document No.98 of 2006.
In the said Will deceased did not appoint any executor and that the petitioner is
one of the beneficiary who is the son of the deceased. The attesting witnesses
had sweared to an affidavit. The plaintiff hereby undertakes to duly administer
the property and credits of the said late R.Subramanian deceased in any way
concerning his Will by paying first his debts and then the legacies therein
bequeathed so far as the assets will extend and to make a full and true inventory
thereof and exhibit the same in this Court within 6 months from the date of
grant of Letters of Administration with the Will annexed to the petition and also
to render to this Court a true account of the said property and credits within one
year from the said date.
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T.O.S.No.23 of 2015
3.The plaintiff further submitted that the amount of assets likely to come
to the petitioner's hand does not exceed in the aggregate a sum of Rs.7,26,000/-
and the net amount of the said assets after deducting all items which the
petitioner is by law allowed to deduct is only to the value of Rs.7,26,000/-
which is the petitioner's share in the entire property.
4.According to the plaintiff, the deceased R.Subramanian leaving behind
the following persons surviving him as his next of kin as his legal heirs:
S.No. Name Relationship
1 Mrs.S.Chokkammal Wife of late R.Subramanian
2 Mr.Sekar Son of late R.Subramanian
3 Mr.Kumar Son of late R.Subramanian
4 Mrs.S.Rani Daughter of late R.Subramanian
5 Mr.S.Rajendran Son of late R.Subramanian
6 Mr.S.Loganathan Son of late R.Subramanian
(petitioner)
7 S.Deenan Son of Mr.S.Sekar and grandson of late
R.Subramanian
8 K.Saravanan Son of Mr.S.Sekar and grandson of late
R.Subramanian
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T.O.S.No.23 of 2015
S.No. Name Relationship
9 G.Geetha Daughter of late Mrs.Koteeswari and
grand daughter of late R.Subramanian
10 S.Selvaraj Son of late Mrs.Koteeswari and grandson
of late R.Subramanian
11 R.Mohan (Minor) Minor represented by his father and
natural guardian Mr.S.Rajendran
12 R.Sathish (Minor) Minor represented by his father and
natural guardian Mr.S.Rajendran
5.The plaintiff submitted that Mrs.Koteeswari and her husband who are
daughter and son-in-law had predeceased of R.Subramanian (deceased). Their
legal heirs are added as respondents 9 and 10. The parents of the deceased,
R.Subramanian were died long ago.
6.The plaintiff further submitted that he has impleaded all next of kin,
legal heirs of the deceased as party/respondents. There are no other next of kin
or legal heirs to be impleaded as party/respondent.
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T.O.S.No.23 of 2015
7.According to the plaintiff, he prayed for grant of Letters of
Administration with the Will annexed to him as he is the son and the legatee
/beneficiary named under the Will of the said deceased having effect limited
throughout the State of Tamil Nadu.
8.Application Nos.10035 and 10037 of 2018 have been filed by the first
defendant to reopen the cross examination which was closed on 29.10.2018 by
the 1st Additional Master Court for the applicant/defendants 1,3 to 5, 7 to 10 in
the above suit, this Court by its order dated 25.02.2019 had allowed these
applications.
9.Adoption Memo was filed by the defendants 2 to 10 wherein it has been
stated that the first defendant filed the Written Statement in the above
T.O.S.No.23 of 2015 and the same was adopted by the defendants 2 to 10.
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T.O.S.No.23 of 2015
10.Application No.2533 of 2020 has been filed to reopen the defendants
side evidence in the cross examination which was closed on 31.01.2020 in the
1st Master Court for the applicant/defendants 1, 3 to 5, 7 to 10 in the above suit,
this Court by its order dated 20.11.2020 dismissed the application for default.
11.Application No.2534 of 2020 has been filed to submit the additional
documents pertaining to the defendants for the applicant/defendants 1, 3 to 5, 7
to 10 in the above suit, this Court by its order dated 20.11.2020 allowed the
application.
12.Application No.701 of 2021 has been filed to recognize 6th defendant
and bring on record the legal heirs of late Mr.S.Sekar viz., 1.Mrs.Datchayani,
2.Mrs.Jayalakshmi, 3.Mrs.Jayanthi, 4.Mrs.Jayashree and 5.Mrs.Vijayalakshmi
legal heirs/legal representatives of the 1st defendant as defendants 11 to 15 in
the TOS, this Court by its order dated 03.02.2021 allowed the application.
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T.O.S.No.23 of 2015
13.A Written Statement has been filed by the first defendant on behalf of
other defendants also. The first defendant denies all the averments set out in the
plaint by stating that the same one false and baseless except for those admitted
herein below and the same is not maintainable in both law and facts. Moreover
the averments are only surmises and conjectures and thus the plaintiff is put to
strict proof of the same.
14.The first defendant submitted that out of the wedlock between late
R.Subramanian and Chokkammal, the following persons were born to them,
they are 1.Mr.S.Sekar, 2.Mr.S.Kumar, 3.Mr.S.Rajendran, 4.late
Mrs.S.Koteeswari, 5.Mrs.S.Rani and 6.Mr.Loganathan (plaintiff). The suit
schedule property was bought out from the earning of late R.Subramanian and
Chokkammal and their first son Mr.S.Sekar (D1) vide Sale Deed dated
16.03.1961 registered as Document No.772 of 1961 in the office of SRO,
T.Nagar. Thereafter from the earning of late R.Subramanian and Chokkammal
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and their first son Mr.S.Sekar (D1), the building now standing on the above said
property was constructed. Even though S.Sekar (D1) was a minor during at the
time of purchase of the said property, he was selling flowers and the money
earned by him was also utilized for purchase of the above said property and to
construct the building thereon.
15.The first defendant further submitted that while late R.Subramanian
was alive, he was repeatedly saying to his sons and daughters that after his
demise the above suit schedule property has to be shared equally among all the
legal heirs of him. While he was on death bed, he had called all sons and
daughters and expressed his last wish that the suit schedule property has to be
shared equally between all the legal heirs as his last wish and further demands
for a partition of the property, as the plaintiff are in occupation of larger area in
the above said property, the plaintiff given various reason and avoided partition,
received the rent appropriated to plaintiff himself and refused to allow other
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T.O.S.No.23 of 2015
co-owners from using the property. This kind of attitude proves the plaintiff
intending to retain and usurp the major portiion of the property and deprive the
other co-owners. Even though D3 to D6, D9 and D10 living at the said
property, it is lesser area compared to the area occupied by the plaintiff who
occupied 50% of the property while all the defendants are equally entitled for
the equal share from the said property.
16.According to the first defendant, in the year 2006 at the time of
execution of Will, their father was not in a sound condition both in physically
and mentally. He was physically very week, paralzyed and he has lost his
memory power completely. In such a condition, there was no chance to execute
such Will dated 30.10.2006 and bequest major portion of the property in favour
of the plaintiff, whereas all the defendants and plaintiff are the legal heirs.
There was no dispute between the defendants and their father late
R.Subramanian.
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17.The first defendant submitted that their father never wrote any Will
and bequeathed such major portion of the property as mentioned in the Will
dated 30.10.2006 in favour of the plaintiff within the knowledge of the
defendants. The Will itself a false and fabricated one according to the whim
and fancy of the plaintiff.
18.The first defendant further submitted that at the time while executing
the Will late R.Subramanian was not in sound disposing state of mind and never
understood the nature and effect of the dispositions. One of the 1st witnesses
was an Advocate and another witness was the plaintiff colleague works along
with in mechanic shed. Hence the Will dated 30.10.2006 is a vitiated one and
not a genuine document.
19.According to the first defendant, the left thumb impression found in
the Will dated 30.10.2006 does not belong to their father late R.Subramanian
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T.O.S.No.23 of 2015
and the will dated 30.10.2006 was a totally forged one with the intention to grab
the property mentioned in the plaint and defeat the legitimate interest and
legitimate rights of the defendants over schedule mentioned property.
20.The first defendant submitted that their father's thumb sizes were big
and in the Will dated 30.10.2006 affixure by a small thumb and to prove the
original signature and thumb impression of their father late R.Subramanian, the
defendants furnished the Mortgage Deed dated 19.04.1965 which contains the
original signature and thumb impression of their father.
21.The first defendant further submitted that there is no sufficient reasons
mentioned in the Will for the exclusion of the sons of the testatrix which create
all the legitimate suspicions about the bonafide of the Will. If the testatrix late
R.Subramanian intends to exclude his sons and daughter except the plaintiff, he
should have stated proper reasons for the same. There is no evidence on the
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T.O.S.No.23 of 2015
part of the plaintiff to show that there was love lost between the father and his
sons and daughter.
22.According to the first defendant, the disposition is unnatural and unfair
excluding other heirs of the testatrix without any reasons, it would vitiate the
entire Will. Hence the will is vitiated one even though it was registered one,
this Will cannot be enforced legally. The defendants prayed that no relief may
be granted to the plaintiff.
23.Heard the learned counsel for the plaintiff and the learned counsel for
the defendants and perused the documents placed on record.
24.It is necessary to extract the apportionment made in the Will by the
deceased R.Subramanian, which reads as follows:
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S.No. Name Relationship Extent Schedule
(in sq.ft.)
1 Loganathan Son 600 A
2 Deenan Grandson 200 B
3 Saravanan Grandson 200 C
4 Mohan and Sathish Grandsons 225 D
(jointly)
25.On perusal of the documents, it is seen that the two attesting witnesses
have signed in the Will viz., Mr.P.Vijay Kumar and Mr.Stanley Joseph.
Thereafter, the said Will has been registered.
26.Original Petition No.55 of 2013 has been converted as a Testamentary
Original Suit viz., T.O.S.No.23 of 2015. The defendants had raised various
contentions that the said Will is not a genuine one and it is a fabricated. No
other documents have been produced to show that the father was chronically ill
that he was not in a position to execute a Will.
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27.On going through the Will, it is found that the same has been
registered vide Document No.98 of 2006 on 30.10.2006, marked Ex.P2. The
Death Certificate of the Testator was dated 16.09.2008 marked Ex.P1. The said
Loganathan/PW1 was cross-examined by the counsel appeared for the
Defendants 3 to 10 and in the admission and cross-examination of the said PW1
has admitted that only his mother was aware that the Will was executed by his
father and about the persons who had accompanied while executing the Will.
The plaintiff already occupied 600 sq.ft and registration also done in his name.
As his father (fell sick) was admitted in Hospitaland after one week discharged
from the hospital and later he died. The defendants stated that they have no
knowledge about the Will and only came to know when they have received the
legal notice pertaining to the suit property.
28.On perusal of the evidence of PW1, it is seen that certain documents
marked on the side of the plaintiff viz., computer generated copy of the Death
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Certificate of R.Subramanian issued on 16.09.2008 marked as Ex.P1, registered
Will dated 30.10.2006 marked as Ex.P2, original Legal Heir Certificate dated
06.04.2010 marked as Ex.P3, original affidavit of attesting witness
P.Vijayakumar dated 31.03.2012 marked as Ex.P4, original affidvait of attesting
witness Stanley Joseph dated 31.03.2012 marked as Ex.P5 and Legal notice
marked as Ex.P6. During the examination, the plaintiff/PW1 stated that he has
received a legal notice from the other defendants regarding partition in the suit
property and his mother informed him about the Will and he also gave a reply
notice to the defendants.
29.On perusal of the PW2, it is seen that he is the identifying witness
before the Sub-Registrar Office at Kodambakkam. After the Testator affixed
his left thumb impression he has signed the Will. He has been requested by the
Testator to attest the Will since he is neighbour and long time family friend. He
has seen the Testator subscribed the thumb impression in the Will with good
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state of mind and he is the first attesting witness. During cross-examination by
the learned counsel for the defendant, the PW2 stated that he know him from his
childhood. According to the PW2, he never met Mr.Subramaniam after
execution of Will. PW2 further stated that he was in the opposite house and he
know him from the childhood and he and his wife along with children were
residing with Mr.Subramaniam and Mrs.Chokkammal in the same house.
According to the PW2, he and late Subramaniam and another person were
accompanied with them and he does not know about the other person and he
was not present during execution of Will but he had read the Will in the
Registrar Office. PW2 stated that he does not know that Mr.Subramiam always
used to keep his thumb impression for any communication.
30.On perusal of the evidence of DW1, it is seen that copy of the
Mortgage Deed dated 19.04.1965 marked as Ex.D1 and the copy of the Sale
Deed dated 13.06.1961 marked as Ex.D2. During the examination, DW1 stated
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that his father admitted in Best Hospital, Kodambakkam only for two days and
the doctor advised to take him to home because of coma stage and his father
was in coma only for 10 days and his right side was paralyzed. According to the
DW1, he has not read the written statement but written statement was prepared
on his instruction and he saw the Will written by his father which was a
registered one and he does not know about the execution of the Will and later he
came to know through Mr.Selvaraj who is his sister's son and the plaintiff
showed the Will in the year 2010.
31.On perusal of the evidence of Mr.S.Rajendran/DW2, it is seen that
during the examination, DW2 stated that he did not see the Will till date and did
not go through the said Will. According to the DW2, he has not filed Written
Statement. DW2 stated that he has no knowledge about the said Will dated
30.10.2006 and the shares given to his sons through the said Will was not
sufficiently given and his son got 225 sq.ft. and Mr.Kumar's sons Saravanan and
Sekar's son Dheenam were given 200 sq.ft. each.
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32.This Court has perused all the materials and evidence available on
record.
33.In view of the above facts and circumstances of the case and
considering the submission made by the learned counsel on either side, this
Court is of the view that the defendants have not produced any contra evidence
in order to substantiate their case and contentions. The plaintiff has proved the
Will and the attesting witnesses also in favour of the plaintiff and therefore, this
Court is of the view that the same may be allowed. Accordingly, this suit is
allowed. There shall be no order as to costs.
34.The plaintiff shall execute a secutiry bond for a sum of Rs.25,000/-
(Rupees Twenty Five Thousand only) in favour of the Assistant Registrar
(O.S.-II), High Court, Madras.
29.04.2022
Index: Yes/No
Speaking Order/Non-Speaking Order
pam
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T.O.S.No.23 of 2015
List of documents marked on the side of the plaintiffs
1.The computer generated copy of the Death Certificate of R.Subramanian
issued on 16.09.2008 – Ex.P1.
2.The registered Will dated 30.10.2006 - Ex.P2.
3.The original Legal Heir Certificate dated 06.04.2010 – Ex.P3.
4.The original affidavit of attesting witness P.Vijayakumar dated 31.03.2012 –
Ex.P4.
5.The original affidvait of attesting witness Stanley Joseph dated 31.03.2012 –
Ex.P5
6.Legal notice – Ex.P6.
List of witnesses examined on the side of the plaintiffs
1.Mr.S.Loganathan - PW1
2.Mr.P.Vijayakumar - PW2
List of documents marked on the side of the defendants
1.Copy of the Mortgage Deed dated 19.04.1965 – Ex.D1
2.Copy of the Sale Deed Document No.772 of 1961 dated 16.03.1961 – Ex.D2.
3.Copy of Partition Deed Document dated 28.11.1999 – Ex.D3.
4.Original Mortgage Deed Document Dated 19.04.1965 No.4 – Ex.D4.
5.Original Partition Deed Document dated 28.11.1999 – Ex.D5.
List of witnesses examined on the side of the defendants
1.Mr.Sekar - DW1
2.Mr.S.Rajendran - DW2
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T.O.S.No.23 of 2015
V. BHAVANI SUBBAROYAN, J.
Pam
A pre-delivery judgment in
T.O.S.No.23 of 2015
29.04.2022
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