Madras High Court

S.Manoharan vs C.S.Rajasekaran ... on 22 November, 2023

                                                        1             TOS.No.28 of 2006 & CS.No.1144 of 2009


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                             RESERVED ON               :03.08.2023

                                             PRONOUNCED ON :22.11.2023

                                                     CORAM:

                                  THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN

                                                TOS.No.28 of 2006
                                              and CS.No.1144 of 2009

                    1. S.Manoharan                                         ...Plaintiff-TOS.28/2006
                                                                               D1-CS.1144 /2009
                                                         ... Vs....

                    1. C.S.Rajasekaran                                     ...Plaintiff-CS.28/2006
                                                                              Defendant-TOS.28/2006

                    2. L.Vijaya (Deceased)

                    3. M.Selvi                                          ...Defendants-CS.1144/2009


                        Prayer:- This Testamentary Original Suit has been filed, under Sections
                    232 and 276 of the Indian Succession Act and Order 25 Rule 5 of the
                    Original Side Rules, for the relief as stated therein. This Civil Suit has
                    been filed, under Order VII Rule 1 of CPC, for the relief as stated therein.
                            For Plaintiff     : Mr.C.Rajagopalan-TOS.28/2006
                                                M/s.S.Sujatha-CS.1144/2009

                            For Defendants    : Mr.C.Rajagopalan-DD1 and 2-CS.1144/2009
                                                M/s.S.Sujatha-Defendant-TOS.28/2006
                                                  ******

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                                                             2       TOS.No.28 of 2006 & CS.No.1144 of 2009


                                                  COMMON JUDGMENT

This Testamentary Original Suit has been filed to grant Letters of

Administration with the Will annexed to the Plaintiff as the Legatee under

the Will of the deceased P.Srinivasan, having effect limited to the State of

Tamil Nadu.

2. This Civil Suit has been filed, seeking a judgement and decree,

for the following reliefs:-

(a) For Permanent injunction, restraining the Defendants from alienating or encumbering the suit property.

(b) For Partition and separate possession of the suit property by metes and bounds of 1/3 share each.

(c) Costs.

3. The plaintiff in the TOS is the younger brother of the plaintiff in

the CS who are vice versa contesting the both suit for their relief and the

2nd defendant in the civil suit is their sister and the 3rd defendant in the civil

suit is legal heir of 2nd defendant who has been impleaded as party since 2nd

defendant died and the wife of the plaintiff in TOS.

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4.The case of the Plaintiff in TOS, is as follows:-

(i) The deceased Testator, P.Srinivasan is the father of the Plaintiff

and the Defendants. The 2nd Defendant has filed a consent affidavit. The

Testator died on 03.10.2002 at his ordinary residence at No.1/8,

Seshadripuram Second Cross Street, Velachery, Chennai 600042. Another

son of the Testator, namely, Sukumaran died as a bachelor in 1984. The

interested next of kin have been impleaded as the Defendants 1 and 2. The

Testator performed the marriages of all the three children. The wife of the

Plaintiff, namely, Latha died on 17.08.1985. The 3rd Defendant is the

daughter of the 2nd Defendant and she is the second wife of the Plaintiff.

Out of the wedlock with Selvi, the Plaintiff had two children, namely,

Nirmala and Rajesh. The 1st Defendant after his marriage in 1979

disowned his biological parents and he was adopted by one Sivam as his

son and the same was published in the Gazette Notification, dated

19.02.1983, in Part IV Section 4 of Tamil Nadu Government Gazette. The

Testator purchased the properties in the name of his wife Padmavathi for

her benefit. The said Padmavathi predeceased the Testator on 05.01.2001.

The Plaintiff alone took care of the Testator. The Last rites and

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ceremonies for the Testator were performed by the Plaintiff.

(ii) The Testator executed a registered Will dated 07.06.2002 at

Jeyamkondam, in favour of the Plaintiff, in the presence of the witnesses,

P.Dhakshinamoorthy and Chandrasekar, whose names appear at the foot of

the Will and in the document before the Registrar Office. The Testator did

not appoint any Executor for the Will. Out of the Annexure A properties,

two of the properties, which are valued as Rs.10,00,000/- which are lying

within the jurisdiction of Corporation of Chennai. The other three

properties are lying out side the jurisdiction of Corporation of Chennai,

which are valued at Rs. 48,000/-. The 1st Defendant issued a notice dated

01.06.2003 for partition of the properties situated within the Corporation

of Chennai. The Plaintiff gave a reply.

(iii) The amount of assets, which is likely come into the hands of the

Plaintiff does not exceed in the aggregate sum of Rs.10,59,140.48/- and

the net amount of the said assets, after deducing all the items, which the

Plaintiff, is by law allowed to deduct, is only of the value of

Rs.10,59,140.48/-. The Plaintiff undertakes to duly administer the

property and the credits of the said deceased Testator, in any way

concerning his Will, by paying first his debts and then, the legacies therein

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bequeathed so far as the assets Will extend and to make a full and true

inventory thereof and exhibit the same in the Court, within six months

from the date of grant of Probate, with the Will annexed to the Plaintiff and

also to render a true account of the said property and credits within one

year from the said date. No application has been made to any District

Court or delegate or to any other High Court for probate or any Will of the

said deceased or Letters of Administration with or without the Will

annexed to his properties and credits. Hence, this Testamentary Original

Suit has been filed, seeking the reliefs, as stated above.

5.The case of the Defendant in TOS, as set out in the written

statement, is as follows:-

(i) The Plaintiff is his younger brother and Vijaya is their sister and

she was originally arrayed as the 2nd Respondent in the OP. She was

driven away from the house property and she made criminal complaints to

many authorities against him. Hence, it is highly impossible for the

Plaintiff to obtain a consent affidavit from her. The alleged Will is not

genuine. The deceased Testator was ordinarily residing at Chennai.

Whereas the alleged Will was executed at Jayamkondam. There is

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suspicious circumstances, coercion and undue influence on the part of the

Plaintiff. The Testator died on 03.10.2002, four months, after the execution

of the alleged Will. The property listed as item no.1 in the Will was

purchased in the name of Padmavathy out of the lands sold by the maternal

father late Narayanasamy Pillai, the grand father of the parties, in

Villupuram District during the year 1974-76. Padmavathi has also

constructed a house in the said plot by disposing of her father

Narayanasamy Pillai's 2.5 acres of land, which is also in Villupuram

District. There are no details of the source of funds for the purchase of the

property listed in item no.2. Due to difference of opinion, the defendant

left the house and is living separately. He was frequently visiting his

mother and attending on her requirements till her last breath. The

Defendant only performed the last rites of their mother. The Plaintiff took

possession of all the original title deeds and other documents. It was the

salary of the defendant which was the main source of income for the

family. The Testator had no right or title over the properties of

Padmavathy.

(ii) When OS.No.4096 of 2003 was pending, the Plaintiff, in order

to defeat the claim of the defendant, filed OP.No.350 of 2005. In

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OS.No.4096 of 2003, a preliminary exparte decree, dated 05.07.2007 has

been passed and suppressing the actual stage of the suit, the suit was

transferred and renumbered as CS.No.1144 of 2009. The averment that the

Defendant was taken in adoption is a story, made out of the publication of

the name change of the defendant in the Gazette Notification. The

defendant was very much living with his parents and family, emotionally.

In such circumstances, the TOS is liable to be dismissed.

6. On the pleading of the TOS, the following issues were

framed:

1. Whether the Will of Late P.Srinivasan dated 07.06.2002 is genuine?

2. Whether the plaintiff is entitled to obtain letters of Administration?

7.The case of the Plaintiff in Civil Suit, is as follows:-

(i) The defendant is none other than the only younger brother of the

Plaintiff. The suit property belonged to late S.Padmavathy, wife of the

Testator and who is none other than the mother of the Plaintiff and the

defendants. Vijaya is not only the sister of the defendant, but also the

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mother-in-law. The suit property was purchased in the name of

Padmavathy, out of the lands sold by the maternal father, late

Narayanasamy Pillai, the grand father of Plaintiff and defendant in

Villupuram District during the year 1974-76. Padmavathi has also

constructed a house by disposing of her father Narayanasamy Pillai's 2.5

acres of land, which is also in Villupuram District. His father late

Srinivasan had no income. The suit property is the absolute property of the

mother of the Plaintiff and the defendants. The Plaintiff had performed

his last rites of his late mother Padmavathy, who died intestate. Due to

difference of opinion, the Plaintiff is living separately. The Plaintiff and

the Defendants are equally entitled to 1/3th share in the suit property.

(ii) The defendants took the original sale deeds and other

documents. The Defendants are trying to alienate the suit property,

showing a registered Will dated 7.6.2002. The alleged Will is null and

void. The Plaintiff has caused a notice dated 01.06.2003, calling upon the

defendants to partition the suit property. A reply dated 10.06.2003 was sent

by the Defendants, for which the Plaintiff has also given a rejoinder dated

16.07.2003 and the Defendants has also given a reply. The defendant is

attempting to probate the Will. Hence, the suit has been filed, seeking the

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reliefs as stated above.

8. The case of the Defendant in Civil Suit, as set out in the written

statement, is as follows:-

The father of the defendant out of his earning and income from

Army Pension and IIT, Chennai purchased the suit properties in the name

of his mother ie. Mrs. Padmavathy, for her benefit. The mother of the

defendant has no income or property, prior to the purchase of the suit

property. She was depending on her husband and the defendant for her

survival. After the marriage of the plaintiff Rajasekaran, he disowned his

biological parents ie. P.Srinivasan and Padmavathy and was adopted by

one Cuddalore Sivam as his son and thereafter, he has changed his name as

Cuddalore Sivam Rajasekaran. Vide Ex.P5. The 1st defendant alone

maintained his parents and his sister along with brother in law. The 1st

defendant's mother predeceased her husband. The 1st defendant's father

after death of his wife, executed a registered Will dated 07.06.2002

bequeathing the suit properties in favour of the 1st defendant instructing the

1st defendant that he should maintain the 2nd defendant ie his sister and

enjoy the suit schedule properties, absolutely. The filing of the suit for

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partition is nothing but to create multiplicity of proceedings intentionally,

when the matter is pending before this Court to decide the effect of the said

Will. Hence, it is liable to be dismissed.

9. On the pleading of the Civil Suit, the following issues were framed:

1. Whether the plaintiff is entitled for permanent injunction as prayed for?

2. Whether the plaintiff is entitled for 1/3rd share of the suit property?

3. Whether the suit property is not available for partition?

4. Whether the plaintiff is not at all a legal heir of S.Padmavathi?

10. On the side of the plaintiff, Ex.P1 to Ex.P22 were marked and

the Plaintiff in TOS was examined as PW.1, one Attesting Witness of the

Will, Mr.S.Chandrasekar was examined as P.W.2 and one Mr.M.Hari babu

was examined as PW.3. On the side of the defendants, Ex.D1 to Ex.D6

were marked and the 1st defendant in TOS and the Plaintiff in Civil Suit

was examined as D.W1.

11. Heard both sides and perused the material available on records

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in both suits.

12.The learned counsel for the plaintiff in TOS and 1st defendant in

CS would submit that since the plaintiff's father ie. P.Srinivasan, being the

Testator of the Will dated 07.06.2002 did not appoint any executor for his

Will, the plaintiff herein has filed the said TOS for grant of letters of

Administration with the Will annexed. The said Will dated 07.06.2002 was

executed by the father of the plaintiff herein before the SRO,

Jayamkondam as Document NO.9 of 2002 in Book No.3 in the presence of

two witnesses ie. (i) Mr.P. Dhakshinamoorthy S/o. Dharmalingam, resident

of Karadikulam, Jayamkondam Taluk and (ii) Mr.Chandrasekar, S/o.

G.Somasundaram, No.95, Bazaar Street, Jayankondam.

13. It has been further submitted that the suit schedule properties

were purchased out of the plaintiff's father hard earned salary from his

Army Pension and Salary from IIT, Chennai in the name of the plaintiff's

mother and he was absolutely enjoying the properties. The plaintiff's

mother predeceased plaintiff's father on 05.04.2001. The 1st defendant in

the Civil suit, being the elder brother of the plaintiff herein, after his

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marriage, disowned his biological parents and was adopted as son of

Cuddalore Sivam. In Ex.P5-Gazette Notification, his name has been

mentioned as Cuddalore Sivam Rajasekaran. Under such circumstances,

the Plaintiff alone took care of the Testator and his Last rites and

ceremonies were performed by the Plaintiff herein. The Testator executed a

registered Will dated 07.06.2002 at Jeyamkondam, in favour of the

Plaintiff, in the presence of the witnesses, P.Dhakshinamoorthy and

Chandrasekar. His sister has also given her consent affidavit vide Ex.P4

dated 30.06.2003 in granting letters of Administration for the said Will in

favour of the plaintiff herein. Hence, he seeks this Court to grant the letter

of Administration with the Will dated 07.06.2002 to the plaintiff in TOS.

14. The learned counsel for plaintiff in C.S.No.1144 of 2009 and 1st

defendant in TOS No.28 of 2006 would submit that the plaintiff in TOS

No.28 of 2006 being the younger brother of the plaintiff herein, by fraud,

undue influence and coercion, has made the said Will dated 07.06.2002

and registered at Jeyamkondam while their father, Testator,

Thiru.P.Srinivasan, was ordinarily residing at No.8, Old No.1,

Seshadripuram 2nd cross street, Velacherry, Chennai. It would be evident

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on seeing the Ex.D3, wherein L.Vijaya/2nd defendant herein has lodged a

complaint addressing to the ADGP, Crime Branch CID, Guindy, Chennai-

600 032 stating that S.Manoharan, the plaintiff in TOS, kidnapped her

father and got the Ex.P1 executed at Jeyamkondam Registration office

using his influence as Police Officer in Jayamkondam.

15.It has been further submitted that while Ex.D1 dated 20.01.2003

is the complaint letter sent by L.Vijaya, addressing to the ADGP,

Mylapore, Chennai levelling serious allegations against the Plaintiff in

TOS, the consent affidavit dated 30.06.2003 would not have been given

by her. In her complaint letter against the plaintiff in TOS, it has been

stated that she was driven away from her mother's house and she was

staying with C.S.Rajasekaran-plaintiff herein whereby it is evident that she

was not in good terms with the Plaintiff in TOS and was away from him

during that period she was said to have signed Ex.P4-Consent Affidavit.

Hence, Ex.P4 is to be considered as fabricated one for the purpose of the

case and is to be rejected and cannot be relied on. Further, it is to be

mentioned that the Plaintiff in TOS had not chosen to examine L.Vijaya,-

2nd defendant herein, being his sister, who was said to have signed Ex.P4-

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the consent affidavit and L.Vijaya-2nd defendant herein died on

14.11.2022, after closing of the evidence on the plaintiff's side. Hence, he

seeks to dismiss the Testamentary suit filed by the plaintiff in TOS.

16.It has been further submitted by the learned counsel for the

plaintiff in Civil Suit that Ex.D2, dated 05.01.2008- a handwritten letter by

the 2nd defendant L.Vijaya, would reveal that she was forced by the

plaintiff in TOS to sign several documents and some plain papers also.

17. The learned counsel for the plaintiff would further submit that it is

not fact that the plaintiff herein severed his relation with the Testator

P.Srinivasan and went in adoption to one Cuddalore Sivam showing

Ex.P5-Gazett Notification wherein the plaintiff's name has been mentioned

as Cuddalore Sivam Rajasekaran. It does not support the theory of

adoption and is invalid without submitting any written document and any

adoption ceremony under the provisions of Hindu Adoption and

Maintenance Act, 1956. Mere altercation between the father and son will

never result in severance of father and son relation. Further, Ex.D6-Legal

heir certificate issued after the demise of the Testator P. Srinivasan, would

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indicate that the plaintiff herein is the son of P.Srinivasan. It is to be noted

that even though the original legal heir certificate is available with the

plaintiff in TOS, he had not chosen to file the same fearing his adoption

theory will be nullified.

18.It has been further submitted that the suit schedule properties

were purchased in the name of mother of the parties. ie. Tmt. S.Padmavathi

and not in the name of Father ie.P.Srinivasan. Further, the plaintiff in the

TOS has not proved that the Testator P.Srinivasan, father of the parties,

has provided funds for purchasing of the suit properties in his wife name

ie. Tmt.S.Padmavathi. In view of the above, since the suit schedule

properties belonged to S..Padmavathi, mother of the parties, it should be

divided equally among the parties. Hence, the plaintiff herein seeks

partition and separate possession of the suit property by metes and bounds

of 1/3 share each dismissing the Testamentary Original Suit.

Issues Nos.1 & 2 in TOS and Issues Nos.1 to 4 in Civil Suit:

19. On a perusal of the Will dated 07.06.2002 in question, it is

seen that while the Testator was residing at Velacherry, in Chennai, the

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said Will dated 07.06.2002 was executed at Jeyamkondam where at that

time, the plaintiff in the TOS was working as a Police Officer. While being

so, the reasons of executing the Will at Jeyamkondam has not been

explained by the plaintiff in TOS while the Testator was residing at

Velacherry, Chennai. Further, on perusal of evidence of P.W.2 in TOS,

who is one of the attesting witness in the Will, it is seen that the attesting

witnesses are not friends and relatives of the Testator. They are also not

known to the testator directly and since they were residing at

Jeyamkondam, they would be known to the plaintiff in TOS while he was

in service at Jeyamkondam Hence, the execution of Will dated 07.06.2002

creates suspicion. Further, even though Ex.P4-consent affidavit has been

filed by L.Vijaya, she has lodged various complaints before the authorities

concerned under Exs.D1 to D5 against the plaintiff in TOS. Hence, this

also creates suspicion.

20.As regards Ex.P5-Gazette Notificate, it has to be pointed out

that merely changing the name as Cuddalore Sivam Rajasekaran, he cannot

considered as a Adopted son of Cuddalore Sivam and other than Gazette

Notification, the plaintiff in TOS has not produced any oral and

documentary evidence under the Hindu Adoption and Maintenance Act,

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1956. Hence, the plaintiff in the Civil suit cannot be considered as adopted

son of Cuddalore Sivam.

21. Admittedly, the suit schedule properties are in the name of

the plaintiffs' mother ie.S.Padmavathi. Even though it has been stated by

the learned counsel for the plaintiff in the TOS that the suit schedule

properties were purchased with the financial assistance of the plaintiff's

father, ie. P.Srinivasan, the plaintiff in TOS has miserably failed to prove

the same.

22.In view of the aforesaid observations and discussions, it is

evident that the suit schedule properties stand in the name of the plaintiffs'

mother and hence, after the death of S.Padmavathy, the suit properties

devolve on her legal heirs and thus, her husband, sons and daughter are

entitled to equal share over the suit schedule properties. Hence, the

plaintiff in Civil Suit is entitled for permanent injunction as prayed for and

he is also entitled for 1/3rd share of the suit property and the suit property is

available for partition. Accordingly, Issue Nos.1, 2 and 3 together are

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answered in favour of the plaintiff in the Civil Suit. While the mother of

the plaintiff is the absolute owner of the property, the father of the plaintiff

does not have any right to execute the said Will dated 07.06.2002 in favour

of his younger son bequeathing all rights, title and interest to him. Hence,

the said Will dated 07.06.2002 is considered as invalid. Accordingly, Issue

No.1 is answered against the plaintiff in TOS. Further, the plaintiff in TOS

is not entitled to grant the letter of Administration with the Will annexed

and accordingly, Issue No.2 is answered against the plaintiff in TOS.

23. Since the plaintiff in TOS failed to prove that the plaintiff in

the Civil Suit as adopted son of Cuddalore Sivam, considering the Ex.D6-

legal heir certificate, it is proved that the plaintiff in C.S is the legal heir of

S.Padmavathi. Accordingly, Issue No.4 is answered in favour of the

plaintiff in Civil Suit.

24.Under such circumstances, in these cases, the plaintiff and the

each defendant in the suit are entitled to equal share ie.1/3 rd share in the

suit schedule properties.

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25.In the result, the Civil Suit in C.S. No.1144 of 2009 is

decreed as prayed for and as a sequel, the Testamentary Original Suit is

dismissed. No costs.

22.11.2023

Index:Yes/No Web:Yes/No Speaking/Non Speaking Srcm/Lbm

List of Witnesses Examined on the side of the Plaintiff:-

1. P.W.1 – Mr.C.S. Manoharan

2. P.W.2 – Mr. S. Chandrasekar

3. P.W.3 – Mr. M. Haribabu

List of Witnesses Examined on the side of the Defendants:-

1.D.W.1 – Mr. C.S. Rajasekaran

List of Exhibits Marked on the side of the Plaintiff/Plaintiffs:-

1.Ex.P1 is the Original Registered Will along with English Translations

dated 07.06.2002.

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2.Ex.P2 is the Original Death Certificate of P.Srinivasan dated

03.10.2002.

3. Ex.P3 is the Original Death Certificate of P.Padmavathy dated

05.04.2001.

4.Ex.P4 is the Original Consent Affidavit of Vijaya dated 30.06.2003.

5.Ex.P5 is the copy of the Tamil Nadu Government Gazette dated

03.03.1993.

6.Ex.P6 is the Original Sale Deed document bearing No.1234 of 1976

dated 09.06.1976.

7. Ex.P7 is the Original Sale Deed document bearing No.1410 of 1996

dated 23.05.1996.

8. Ex.P8 is the Original Sale Deed document bearing No.6333 of 1983

dated 15.07.1983.

9.Ex.P9 is the Original Sale Deed document bearing No.8349 of 1983

dated 30.09.1983.

10.Ex.P10 is the Original Sale Deed document bearing No.3431 of 1983

dated 24.11.1983.

11.Ex.P11 is the Original Paper Publication dated 25.10.2005.

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12.Ex.P12 is the Original Paper Publication in News Today dated

18.10.2005.

13.Ex.P13 is the Photo copy of the half of the letter.

14. Ex.P14 is the certified copy of the letter.

15. Ex.P15 is the Photocopy of the Aadhar Card (Compared with the

Original) (Marked with the consent of the learned counsel for the

plaintiff in CS No.1144 of 2009 and Defendant in TOS No.28 of

2006)

16. Ex.P16 is the Photocopy of the Driving License (Compared with the

Original) (Marked with the consent of the learned counsel for the

plaintiff in CS No.1144 of 2009 and Defendant in TOS No.28 of

2006)

17. Ex.P17 is the Photocopy of the Voter ID.(Compared with the

Original) (Marked with the consent of the learned counsel for the

plaintiff in CS No.1144 of 2009 and Defendant in TOS No.28 of

2006).

18. Ex.P18 is the Photocopy of the PAN Card (Compared with the

Original) (Marked with the consent of the learned counsel for the

plaintiff in CS No.1144 of 2009 and Defendant in TOS No.28 of

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2006).

19. Ex.P19 is the signature of the 2nd attesting witness in Ex.P1.

20. Ex.P20 is the Photocopy of the Aadhar Card. (Compared with the

original)

21. Ex.P21 is the discharge certificate issued by the Army

22. Ex.P22 is the ID card issued by IIT, Madras.

List of Exhibits Marked on the side of the Defendant/Defendants:-

1. Ex.D1 is the Original Complaint Letter by L.Vijaya to the Additional Director General of Police, Mylapore, Chennai – 600 004 with original Postal Acknowledgment dated 20.01.2003.

2.Ex.D2 is the Original Letter written by L.Vijaya to the Plaintiff in TOS No.28 of 2006 dated 05.01.2008.

3.Ex.D3 is the Original Complaint Letter by L.Vijaya to the Additional Director General of Police, (Crime Branch CID, Guindy, Chennai with original Postal Acknowledgment card dated 12.06.2009.

4.Ex.D4 is the Original Complaint Letter to the Human Rights Commission, Chennai by L. Vijaya with Original Postal Acknowledgment card dated 14.10.2009.