Madras High Court

K.Venugopal vs Mrs.M.Jayalakshmi on 5 April, 2023

                                                                                  TOS.No.32 of 2008


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED: 05.04.2023

                                                        CORAM

                                    THE HONOURABLE Ms.JUSTICE R.N.MANJULA

                                                   TOS.No.32 of 2008

                  K.Venugopal
                                                                                     ... Plaintiff
                                                          -Vs-
                  1. Mrs.M.Jayalakshmi
                     W/o.Murugesan
                  2. A.Mohan Kumar
                  3. A.Sathyanarayanan
                  4. A.Jaiganesh Kumar
                  5. Mrs.Manjula
                                                                                   ... Defendants

                                  Testamentary Original Suit numbered, on conversion of Original

                  Petition on caveat being filed by the first respondent in the O.P. and the

                  Original Petition in O.P.No.310 of 2008 was filed under Sections 222 and 276

                  of the Indian Succession Act XXXIX of 1925 for grant of Probate.


                                  For Plaintiff     :   Mr.R.S.Raveendhren

                                  For Defendants    :   Mr.S.Rangarajan
                                                         *****




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                                                                                      TOS.No.32 of 2008


                                                     JUDGMENT

O.P.310 of 2008 was filed for grant of Probate to prove the Will in

common form and that Probate thereof, to have effect limited to the State of

Tamilnadu. Since a Caveat was filed on 29.08.2008, the Original Petition was

directed to be converted into TOS and numbered as TOS.No.32 of 2008.

2. The property was purchased by one K.Sakunthala Ammal and she

was in enjoyment of the same. During her lifetime she executed a registered

Will on 31.08.1994 in the presence of the attesting witness and the Will is

marked with letter 'A' and it was the last Will executed by K.Sakunthala

Ammal. The petitioner has been appointed as the executor in the above said

Will. K.Sakunthala Ammal had 2 sons and 5 daughters. The petitioner is one

of the sons of K.Sakunthala Ammal and the rest of the children of

K.Sakunthala Ammal are shown as the respondents 1, 2, 9 and 10. Two

daughters by names Neela and Ganga Bai had predeceased the testator. Hence

the children of Neela has been impleaded as respondents 3, 4 and 5 and the

children of Ganga Bai are shown as the respondents 6, 7 and 8. The

respondents 11 and 12 and petitioners are beneficiaries of the Will and hence

they have been impleaded as parties. The suit property is situated in Chennai.

https://www.mhc.tn.gov.in/judis TOS.No.32 of 2008

The testatrix died on 29.11.1998 and thereafter the Will came into force. Since

the petitioner was appointed as the executor of the Will with the consent of the

respondents 6 to 12, he has filed the original petition for grant of probate in

his favour. The said petition was objected by the respondents 1, 3 and 5.

Hence the Original Petition in O.P.No.310 of 2008 has been converted as

T.O.S.No.32 of 2008. Though the defendants 1, 3 and 5 had objected in the

beginning, they have not filed any written statement. The husband of the

testatrix predeceased her. The other respondents have given their consent.

Hence the plaintiff should be given with the letter of probate.

3. The issues that need to be decided in this suit are as under:-

(i)Whether the Will dated 31.08.1994 is a true and valid?

(ii)Whether the plaintiff is entitled to get the letter of probate as

prayed by him?

4. On the side of the plaintiff, the plaintiff himself has been

examined as PW-1 and the attesting witness was examined as PW-2 and 9

documents were marked as Exhibits P1 to P9. On the side of the defendants,

no witness was examined and no document was marked.

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5. The owner of the property is said to be one K.Sakunthala Ammal

and it is claimed that K.Sakunthala Ammal had executed a Will dated

31.08.1994 and the same is marked as Ex.P1. K.Sakunthala Ammal had

bequeathed the suit property in favour of the plaintiff's son V.Sathish Kumar.

6. The plaintiff was examined as PW-1. He has stated in his

evidence that the registered Will dated 31.08.1994 has been marked as Ex.P1.

The death certificate of K.Sakunthala Ammal is marked as Ex.P2 and that

would show that K.Sakunthala Ammal died on 29.11.1998. The plaintiff is

one of the sons of K.Sakunthala Ammal. As per the terms of the Will, the

petitioner and his wife have been given with life interest in respect of the

subject property and after the lifetime of the petitioner and his wife, the

property would vest in the name of the son of the plaintiff. The son of the

plaintiff has been shown as 12th respondent. The consent affidavits given by

the respondents 6, 7, 8, 9, 11, 12 and second respondent for giving probate in

the name of the plaintiff have been marked as Exhibits P3 to P9.

7. PW-1 was not cross examined by neither of the defendants and

his evidence remains unchallenged. Even though the plaintiff was not cross

https://www.mhc.tn.gov.in/judis TOS.No.32 of 2008

examined by any of the defendants, the plaintiff has got a burden to prove that

the Will was true and valid. PW-1 has stated in his evidence that as per the

Will he was given with the life interest and the title of the property will pass to

his son.

8. According to the Indian Succession Act, the Will has to be shown

to have been executed in compatible with Section 63(c). As per Section 63(c)

of the Indian Succession Act, the testator ought to have executed the Will in

the presence of attesting witness and the attesting witness should know that he

is affixing his signature in proof of the Will executed by the testatrix.

9. One of the attesting witness is examined as PW-2 and she has

spoken about her participation and the presence at the time when the Will was

executed by the testatrix and he had affixed his signature in her presence. So

the requirement of proof of Will under Section 68 of the Evidence Act is

complied. PW-1 and PW-2 were not examined on the side of the defendants

and their conduct would amount to accepting the execution of the Will by the

testator. Since the petitioner has proved that the Will is true and genuine, he is

entitled to get the letter of Probate. Then the issues are answered in favour of

the plaintiff.

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10. In the result, this Testamentary Original Suit is decreed and the

Registry is directed to grant probate in favour of the plaintiff. No Costs.

05.04.2023 (1/2) kmi

Witnesses examined on the side of plaintiff:-

                            P.W.1       K.Venugopal (plaintiff)
                            P.W.2       Mrs.M.Jayalakshmi

List of documents marked on the side of plaintiff:-

                        Exhibit        Dated                        Description
                         No.
                           P-1      31.08.1994 Original Will registered as Doc.No.58/1994,

Tiruvallikeni SRO (Will is a safe custody) P-2 04.12.1998 Original Death Certificate of K.Sakunthala Ammal P-3 17.03.2008 Consent Affidavit of the 6th respondent (A.Suresh Kumar) P-4 17.03.2008 Consent Affidavit of the 7th respondent (A.Dhanesh Kumar) P-5 17.03.2008 Consent Affidavit of the 8th respondent (A.Sumathi) P-6 17.03.2008 Consent Affidavit of the 9th respondent (Mrs.Kuppa Bai)

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Exhibit Dated Description No.

P-7 23.08.2008 Consent Affidavit of the 11th respondent (V.Shanthi) P-8 28.08.2008 Consent Affidavit of the 12th respondent (V.Sathish Kumar) P-9 20.09.2021 Consent Affidavit of the 2nd respondent (K.Loganathan)

Witnesses examined on the side of defendants:--

Nil List of documents marked on the side of defendants:--

Nil

List of Court documents marked:--