Madras High Court
S.Andal vs S.Vasudevan on 4 August, 2022
T.O.S.No.43 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date : 04.08.2022
CORAM:
THE HON`BLE MR.JUSTICE A.A.NAKKIRAN
T.O.S.No.43 of 2021
(O.P No.280 of 2021)
S.Andal .. Plaintiff
..Vs.
S.Vasudevan .. Defendant
Prayer: Original Petition has been filed under Sections 222 and 276 of the
Indian Succession Act XXXIX of 1925 and Order XXV Rule 4 of O.S for
the grant of probate in respect of the last Will and Testament of the deceased
S.Govindan. Against this petition, a Caveat and Objection affidavit was filed
by the Caveators. As per order of this Court, the Original Petition No.280 of
2021 was converted into Testamentary Original Suit No.43 of 2021.
For Plaintiff : Mr.Prasad Vijayakumar
1/8
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T.O.S.No.43 of 2021
For Defendant : Set Exparte
JUDGMENT
The Testamentary Original Suit is filed for grant of Probate in respect
of the last Will and Testament of the deceased S.Govindan.
2.The brief facts of the case of the plaintiff are as follows:
The plaintiff is the younger sister of the deceased S.Govindan. The
respondents 1 & 2 in the main O.P are sister and brother, respectively of the
Testatrix and the 3rd respondent in the main O.P, who is the defendant in the
suit, is the brother of the Testatrix. The deceased was a bachelor and had no
children. There is no next of kin or other person interested to be impleaded.
The said S.Govindan died on 05.08.2020. The deceased executed his last
Will and Testament dated 01.04.2019. The plaintiff is the executor named in
the Will and hence the petitioner/plaintiff, in his capacity as the executor of
the said Will, has filed the main original petition for the grant of probate. The
amount of assets which is likely to come to the petitioner/plaintiff's hand does
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T.O.S.No.43 of 2021
not exceed in the aggregate a sum of Rs.3,00,00,000/- and the net amount of
the said assets after deducting all items which the plaintiff is as per law
allowed to deduct is only of the value of Rs.3,00,00,000/-. No application
has been made to any District Court or Delegate or to any other High Court
for probate of any Will of the said deceased with or without Will annexed of
his properties and credits. The petitioner/plaintiff hereby undertakes to duly
administer the property and credits of the said late Mr.S.Govindan, deceased,
in any way concerning his Will by first paying 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 regard within six months from
the date of grant of probate to the petitioner herein and also to render to this
Hon'ble Court a true account of the said property and credits within one year
from the said date. Hence, he prays to grant probate of the Will.
3. Though summons were served on the defendant, neither the
defendant nor his counsel had chosen to appear before this Court. Hence, the
defendant was set exparte on 08.07.2022.
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T.O.S.No.43 of 2021
4. Heard the learned counsel for the plaintiff and perused the records.
5. The plaintiff examined herself as P.W.1 and she had narrated the
averments made in the petition stating that the plaintiff has filed the main
original petition for the grant of probate in her favour in respect of the Last
Will and Testament executed by the testator on 01.04.2019. Ex.P1 is the
original Will dated 01.04.2019 executed by the deceased S.Govindan. Ex.P2
is the death certificate of the deceased S.Govindan and the same has been
filed to prove that the deceased died on 05.08.2020. Ex.P3 is the photocopy
of the Will dated 04.03.1988 executed by the plaintiff's mother viz.,
Mrs.Mythili in favour of plaintiff's brother S.Govindan along with probate
order passed in O.P No.69 of 2009. Ex.P4 is the photo copy of the death
certificate of plaintiff's mother, Mrs.Mythili dated 25.01.2001. Ex.P5 is the
photocopy of the legal heir certificate of plaintiff's father viz., Mr.O.P
Srinivasan. Ex.P6 is the affidavit of assets showing the net value of estate of
the deceased as Rs.3,00,00,000/-.
6. One of the attestors of the Will dated 01.04.2019 viz.,
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T.O.S.No.43 of 2021
K.S.Sounderarajan was examined as P.W.2. His evidence clearly establish
the fact that the testatrix was in a sound and disposing state of mind at the
time of executing the Will and both the attesting witnesses have seen the
testatrix signing the document and the testatrix also seen the attesting
witnesses subscribing their signature in the Will. Ex.P.7 is the affidavit filed
by P.W.2 in this regard. The evidence of P.W.2 has not only proved the
execution, but also attestation of the Will. The Will is a registered one and
from the evidence of P.W.2, this Court does not find any suspicious
circumstances.
7. From the averments made in the petition and the deposition of
P.W.1 and P.W.2 supported by the documents, it is clear that the plaintiff has
proved her claim and there is no contra evidence. Hence, I am satisfied that
the plaintiff is entitled for the issuance of probate in favour of her.
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T.O.S.No.43 of 2021
8. In the result, this Testamentary Original Suit is decreed as prayed
for with cost and the Registry is directed to issue probate in respect of the
Will dated 01.04.2019.
04.08.2022
Index : Yes/No
Internet : Yes
Speaking/Non-speaking order
uma
Witnesses examined on the side of the plaintiffs:
P.W.1. - S.Andal
P.W.2 - K.S.Sounderarajan
Exhibits produced on the side of the plaintiffs:
S.N Exhibits Date Description
o.
1. P-1 01.04.2019 Original Will executed by
S.Govindan
2. P-2 05.08.2020 Photocopy of death certificate of
S.Govindan.
3. P-3 04.03.1988 Photocopy of Will executed by the
plaintiff's mother Mrs.Mythili in
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T.O.S.No.43 of 2021
S.N Exhibits Date Description
o.
favour of S.Govindan along with
probate order passed in OP No.69
of 2009 dated 10.09.2009
4. P-4 25.01.2001 Photocopy of the legal heir
certificate of plaintiff's mother
Mrs.Mythili.
5. P-5 01.10.2006 Photocopy of the legal heir
certificate of plaintiffs father
Mr.O.P.Srinivasan
6. P-6 -- Affidavit of Assets
7. P-7 Affidavit of Attesting Witness
Witnesses & documents on the side of the defendant:
Nil.
04.08.2022
A.A.NAKKIRAN,J.
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T.O.S.No.43 of 2021
uma
T.O.S.No.43 of 2021
04.08.2022
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