Madras High Court
S.Jayalakshmi vs Srividya Iyer on 3 April, 2023
TOS.No.42 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.04.2023
CORAM
THE HONOURABLE MS.JUSTICE R.N.MANJULA
TOS.No.42 of 2022
S.Jayalakshmi ... Plaintiff
Vs.
1.Srividya Iyer
2.S.Rekha
3.S.Arjun
4.S.Adithya
Minor rep. by his mother and
natural guardian S.Rekha ... Defendants
PRAYER : Testamentary Original Suit filed under Sections 222 and 276
of the Indian Succession Act read with Order XXV Rule 4 of the Original
Side Rules, praying to allow the plaintiff to prove the Will in common
form and the probate may be granted to the plaintiff having effect limited
to the State of Tamil Nadu.
For Plaintiff : Mr.K.S.Navin Balaji
For Defendants : Mr.K.Balamurali for
Mr.Shivakumar for D2 to D4
JUDGMENT
The Testamentary Original Suit has been filed to grant probate in
favour of the plaintiff having effect throughout the State of Tamil Nadu.
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TOS.No.42 of 2022
2. The 'A' schedule property belonged to Mr.K.Sundaresan, who is
husband of the plaintiff and on which, there is no dispute. The said
Sundaresan had executed an unregistered Will dated 12.05.2007 in respect
of the 'A' schedule property by bequeathing the same in favour of the
plaintiff herein for her absolute enjoyment. The said Sundaresan died on
05.03.2020. The plaintiff herself has been appointed as an executor of the
Will after the demise of the said Sundaresan. Accordingly, she filed a
petition seeking grant of probate in her favour.
3. Originally, the petitioner has filed a petition in O.P.No.796 of
2021 for grant of probate in favour of the petitioner / plaintiff. In view of
the caveat filed by R2 to R4, the Original Petition in O.P.No.796 of 2021
has been converted as TOS.No.42 of 2022 and the pleadings received.
4. After the issues were framed, trial commenced. The plaintiff
examined herself as P.W.1 and one of the attestor of the Will as P.W.2.
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TOS.No.42 of 2022
5. The said facts about the antecedents of the suit property has been
spoken by the plaintiff / P.W.1 in chief examination. P.W.1 was not cross
examined on these aspects. One of the attestors of the Will by name
K.Mohan has been examined as P.W.2. He has stated in his evidence about
the execution of the Will by the testator Sundaresan and the role played by
him in attesting the same. He also identified the signature of the testator.
He was also not cross examined. The said Will dated 12.05.2007 has been
marked as Ex.P2.
6. Today when the matter was taken up, the learned counsels for
both sides submitted a memo of compromise signed by the plaintiff and
the defendants 2 to 4. The first defendant who is the daughter of the
plaintiff did not file any caveat. So, she has no objection to grant probate
of the Will as prayed by the plaintiff.
7. The second defendant is the wife of the pre-deceased son of the
plaintiff and the defendants 3 and 4 are the children of the second
defendant. The third defendant who is the elder son of the second
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TOS.No.42 of 2022
defendant is said to be in abroad and he has given power of attorney in
favour of his mother, the second defendant herein. The fourth defendant is
a minor son and hence the second defendant had signed the memo of
compromise for herself and as power of attorney for the third defendant
and as the mother and natural guardian for the fourth defendant.
8. When the Court insisted for the personal appearance of the
parties, the learned counsel for the plaintiff submitted that the plaintiff is
aged about 80 years and hence, it is not be possible for her to make her
appearance in person. Similarly, the learned counsel for the defendants
also expressed certain inconvenience for causing appearance of the
defendants 2 to 4. In view of the above said reasons, the parties are
permitted to make their appearance through Whatsapp video call.
9. The plaintiff appeared through Whatapp video call made by the
learned counsel through his Mobile Number 9840166608 to plaintiff's
Mobile Number 9840175026. Similarly, the second defendant appeared
through Whatsapp video call made by her learned counsel through his
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TOS.No.42 of 2022
mobile number 9840088887 to the second defendant's Mobile Number
9840224975. When they appeared through Whatsapp video call, the
plaintiff and the second defendant were identified by their respective
counsels and the terms of the compromise were briefed to the parties and
they agreed them to be correct and stated that they have signed the memo
of compromise by fully understanding the terms. In view of the same, the
memo of compromise is recorded.
10. The evidence of P.W.1 and P.W.2 does not suffer from any
suspicious circumstances so as to render the Will as a doubtful instrument.
Since the plaintiff has proved the Will in the manner known to law, I feel it
is appropriate to decree the suit as prayed for and the probate should be
issued in favour of the plaintiff.
11. In the result, this Testamentary Original Suit is decreed and the
Registry is directed to grant probate in favour of the plaintiff. The memo
of compromise is also recorded and it shall form part of the order. No
costs.
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TOS.No.42 of 2022
12. Even though the second defendant has filed caveat, she did not
contest the matter and conceded to pass decree in view of the compromise
entered into between herself and the plaintiff herein. The subject matter of
the compromise involves the properties other than the 'A' schedule
property for which the Will has been executed. The interest of the
defendants 2 to 4 appears to be only in respect of the other items of the suit
property viz., schedule B, C and D. So far as the 'A' schedule property for
which the Will is executed, the second defendant has also consented to
probate the Will in favour of the plaintiff and hence, the Court fee is
ordered to be refunded. For disbursement of refund of Court fee, the
Registry shall not insist for the personal presence of the plaintiff and
however her appearance can be caused through Whatsapp video call as
how it has been done today.
Index : Yes/No 03.04.2023
Internet : Yes/ No
gsk
https://www.mhc.tn.gov.in/judis
TOS.No.42 of 2022
R.N.MANJULA,J.
gsk
TOS.No.42 of 2022
03.04.2023
https://www.mhc.tn.gov.in/judis
