Madras High Court
C.Madhu vs C.Amutha .... Caveator / on 31 January, 2023
T.O.S.No.85 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.01.2023
CORAM : JUSTICE N.SESHASAYEE
T.O.S.No.85 of 2013
C.Madhu .... Petitioner / Plaintiff
Vs
C.Amutha .... Caveator / Defendant
Prayer : Petition filed under Section 232, 255 & 276 of the Indian Succession
Act XXXIX of 1995 for the grant of Probate.
For Plaintiff : Mr.S.Krishnasamy
For Defendant : Mr.Niranjan Rajagopalan
JUDGMENT
A certain SP.Chockalingam Chettiar died, possessed of four items of
immovable properties, on 10.02.2012. Some 13 years prior to that, to be
precise on 21.05.1999, he had executed a registered Will bequeathing his
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T.O.S.No.85 of 2013
immovable assets in favour of his only son Madhu, the plaintiff herein. Besides
Madhu, he had two other daughters namely Abirami and Amudha, and he also
left behind his surviving widow Meenakshi. The testator has nominated his
sole legatee as executor under the Will. It is in this circumstances, on the
demise of the testator, the executor / legatee has laid O.P.No.189 of 2012 for
probate. All the other heirs of Chockalingam were cited as party respondents
in OP, and it was opposed by one of his daughters namely Amudha, who
entered on a caveat, on the ground that the properties dealt with by the testator
are ancestral in character, and that Chockalingam did not have absolute title to
the properties for him to bequeath them in favour of his son alone.
2. The petition for grant of probate was now converted into a testamentary suit.
The caveator Amudha had filed her written statement, and she had taken up the
following contentions :
(a) that the properties dealt with under the Will are ancestral in character;
(b) that the testator has not executed the Will with his free will and he
was put under duress into executing the Will.
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T.O.S.No.85 of 2013
3. The following issues were framed by this Court and the matter was placed
before learned Master of this Court for recording the evidence :
(1) Whether the Will dated 21.05.1999 executed by
S.P.Chockalingam Chettiar while he was in sound and
disposing state of mind or coercion and without free mind
as pleaded by the defendant?
(2) Whether the properties bequeathed under the Will dated
21.05.1999 are the self acquired properties of the testator
S.P.Chockalingam Chettiar or his ancestral properties as
pleaded by the defendant?
(3) Whether the testator S.P.Chockalingam Chettiar had
testamentary right to execute the Will dated 21.05.1999?
(4) Whether the Will can be challenged on the grounds that
the properties are bequeathed only to the plaintiff leaving
his wife and two daughters?
(5) Whether value of the suit determined by the plaintiff and
the Court Fee paid thereon is correct?
(6) To what other reliefs, the parties are entitled to?
4. On the side of the plaintiff, he examined himself as P.W.1 and he
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T.O.S.No.85 of 2013
propounded the Will dated 21.05.1999 executed by SP.Chockalingam, and it
came to be marked as Ext.P1. Besides, he also produced six other documents,
and they came to be marked as Ext.P2 to Ext.P7. Of them, Ext.P4 is an auction
notice issued by M/s.Murray & Co., and Ext.P6 & Ext.P7 are copies of sale
deeds pertaining to some immovable properties in the name of the testator. The
plaintiff had also examined an attesting witness to the Will as P.W.2. For the
contesting defendant, she examined herself as D.W.1 and she marked no
documents.
5. The learned counsel for the plaintiff submitted that so far as the scope of the
suit is concerned, the Court need to focus essentially on the proof regarding the
genuineness of the Will, and here the only objection raised by the defendant is
that the testator was put under duress to execute the Will. However, the Will is
a registered Will and the testator lived for another about 13 years, and he did
not choose to revoke his Will. This apart, no circumstances as could prove the
defence has been elicited either from the plaintiff, or from the attesting witness,
and the evidence offered by the defendant in support of her case is essentially
self-serving.
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T.O.S.No.85 of 2013
6. The learned counsel for the defendant would argue that the Will had
excluded the daughter, who is the natural heir, and this has to be countenanced
and cannot be ignored. The very fact that some of the natural heirs who are
placed in the same plane as the plaintiff have been excluded, lends a strong
suspicion regarding the genuineness of the Will.
7.1 On appreciating the rival contentions closely, this Court has to segregate
the two defences offered by the defendant. So far as her contention that the
properties are ancestral in character is concerned, that issue has to be left open
for the present. It may be that the plaintiff had filed some of the title deeds of
the testator, but then to consider them at this stage would amount to expanding
the scope of testamentary jurisdiction of this Court.
7.2 Turning to the second contention, and critical to the prayer of the plaintiff is
concerned, her plea is that the testator was put under duress and that he has not
executed Ext.P1, Will with his free consent. On this, this Court finds
considerable force in the submission of the plaintiff when he contended that the
testator had died some 13 years after the execution of the Will. And this Court
also finds that nothing has been elicited from P.W.1 or P.W.2 to provide a
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T.O.S.No.85 of 2013
believable circumstance for the Court to conclude that the Will possibly might
not have been executed with free will of the testator. And as rightly argued by
the counsel for the plaintiff, the oral testimony of the defendant was essentially
self-serving.
9. Turning to the contention of the learned counsel for the defendant is
concerned, this Court considers that it tried to build a case in right earnestness,
but unfortunately, it is not backed by sufficient pleadings. A mere fact that the
testator has excluded one of the natural heirs by itself might not be adequate to
taint the execution of the Will with suspicion. After all, it is the choice of the
testator and in jurisprudence it is an expression of the power of the testator and
that cannot be questioned. On her evidence, this Court finds that the defendant
was not able to create a dent in the case of the plaintiff. Hence, this Court
necessarily needs to hold that the registered Will dated 21.05.1999 executed by
late SP.Chockalingam is genuine. As already outlined earlier, the issue
regarding the character of the immovable properties covered under the Will is
left open.
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T.O.S.No.85 of 2013
10. In fine, T.O.S.No.85 of 2013 is decreed. Probate is issued to the Will dated
21.05.1999 executed by SP.Chockalingam Chettiar in favour of the plaintiff.
There shall be no order as to costs.
31.01.2023
Index : Yes / No
Speaking order / Non-speaking order
ds
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T.O.S.No.85 of 2013
APPENDIX
I. Witnesses :
Plaintiff :
P.W.1 C.Madhu
P.W.2 PR.Annamalai
Defendant :
D.W.1 C.Amutha
II. Exhibits :
Ext.P1 21.05.1999 Xerox copy of the Will executed by SP.Chockalingam in
favour of C.Madhu
Ext.P2 17.02.2012 Original death certificate of SP.Chockalingam
Ext.P3 03.07.1974 Certified copy of sale deed executed in favour of
SP.Chockalingam
Ext.P4 12.03.1979 Auction Notice issued by M/s.Murray & Co., in respect of
the property at Plot No.24 (New No.15), Bajanai Koil
Street, Kodambakkam.
Ext.P5 02.03.1979 Letter addressed to M/s.Murray & Co., by Madras
Fertilizers Limited
Ext.P6 14.03.1986 Certified copy of sale deed executed in favour of
SP.Chockalingam
Ext.P7 09.05.1990 Certified copy of sale deed
31.01.2023
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T.O.S.No.85 of 2013
N.SESHASAYEE.J.,
ds
T.O.S.No.85 of 2013
31.01.2023
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