Madras High Court
Y.Mani vs Y.Sriram on 5 September, 2022
O.S.A.No.211 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 05.09.2022
CORAM:
THE HONOURABLE MR. JUSTICE M.DURAISWAMY
and
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
O.S.A.No.211 of 2022
Y.Mani ... Appellant
..vs..
1. Y.Sriram
2. Y.Jeyanthi ... Respondents
This Original Side Appeal is preferred under Order XXXVI Rule
1 of Original Side Rules r/w. Clause 15 of Letters Patent, against the
order of the learned Hon'ble single Judge of this Court dated 25 th April
2022 passed in O.P.No.954 of 2019.
For Appellant : Mr.V.Venkadasalam
For Respondents : Mr.S.Bharath Gowtham
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O.S.A.No.211 of 2022
JUDGMENT
(Judgment was delivered by Sunder Mohan,J.)
Challenging the order passed in O.P.No.954 of 2019 dated 25th
April 2022 dismissing the appellant's prayer for grant of probate of Will,
the appellant is before us.
2. The appellant filed a petition before this Court praying for
grant of probate of the Will of his father, which was registered in
Document No.153/2003 dated 10.12.2003 on the file of SRO, Mylapore.
The appellant's father one S.YegnaViswanathan died on 25.05.2015
leaving behind his children – the appellant and the respondents herein as
his legal heirs. The mother of the appellant and the respondents
predeceased the testator and died on 16.10.2001.
3. The appellant examined himself as PW.1 and one
V.S.Sundari was examined as PW.2 to identify the signature of one of
the witnesses, namely, S.Krishnamurthy to the Will and marked nine (9)
documents to prove the Will.
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O.S.A.No.211 of 2022
4. The learned Single Judge dismissed the petition on the ground
that the appellant had not proved the Will as per Sections 68 and 69 of
the Indian Evidence Act. The learned Single Judge found that even if
one witness to the Will had died, the other witness ought to have been
examined and in this case, the appellant failed to do so and the appellant
had also not established the efforts taken by him to find out the
whereabouts of the other witness.
5. Heard Mr.V.Venkadasalam, learned counsel for the appellant
and Mr.S.Bharath Gowtham, learned counsel for the respondents.
6. When the appeal was taken up for hearing, the learned
counsel for the appellant submitted that he had filed a petition to receive
the affidavits of the respondents and affidavit of one Mr.K.Ravi, son of
S.Krishnamurthy, one of the attesting witnesses to the Will of the testator
as additional evidence in the above Original Side Appeal. The Learned
counsel for the respondents had no objection for allowing this petition
and hence, we allowed the said petition in C.M.P.No.13247 of 2022.
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O.S.A.No.211 of 2022
7.On a perusal of the additional evidence, namely the affidavits
filed by the respondents, we find that the respondents, being the other
legal heirs of the testator, have no objection for grant of probate of the
Will dated 10.12.2003 of late YegnaViswanathan. The affidavit of one
Mr.K.Ravi discloses that he is the son of late Krishnamurthy, who died
on 16.03.2018. The said Ravi has identified the signature of his father
Krishnamurthy in the above said Will. Further the learned counsel for
the respondents submitted that the affidavits of three persons, which are
now filed as additional evidence, are genuine and he has no objection for
the grant of probate as prayed for by the appellant.
8.The Additional evidence filed by the Appellant discloses that the
Appellant had taken efforts to trace the whereabouts of the other witness
to the Will. The signature of the deceased witness Mr.Krishnamurthy has
been proved by his son. The Testator's signature has been proved by the
Affidavits of the Respondents, who are the other Legal Heirs of the
Testator. The Legal Heirship Certificate viz.Ex.P.3 discloses that the
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O.S.A.No.211 of 2022
Appellant and the Respondents are the only Legal Heirs. Before the
learned Single Judge, the appellant had not filed the above affidavits that
we are now relying upon for grant of probate.
9. In view of the above, we are of the view that the probate can
be granted in favour of the appellant as prayed for. The order of the
learned single Judge is set aside. O.S.A.No.211 of 2022 is allowed and
consequently, the prayer in O.P.No.954 of 2019 is allowed as prayed for.
No costs.
10. Registry is directed to issue probate certificate to the
appellant.
(M.D.J.,) (S.M.J.,)
05.09.2022
Mra
Internet: Yes
Index : Yes/No
Speaking/Non speaking order
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O.S.A.No.211 of 2022
M.DURAISWAMY, J.,
and
SUNDER MOHAN, J.,
mra
O.S.A.No.211 of 2022
(2/2)
05.09.2022
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