Madras High Court
S.Vijaya Kumar vs Uma Sarguru on 24 November, 2023
TOS.No.52 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 28.08.2023
PRONOUNCED ON :24.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
TOS.No.52 of 2016
1. S.Vijaya Kumar
2. S.Rajalakshmi ...Plaintiffs
...Vs...
Uma Sarguru ...Defendant
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.
For Plaintiffs : Mr.Srinath Sridevan,
SC for M/s.S.Aishwarya
For Defendant : Mr.V.Kubendran
*******
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TOS.No.52 of 2016
JUDGMENT
This Testamentary Original Suit has been filed to grant Letters of
Administration with the Will annexed to the Plaintiffs as the last Will and
testament of the deceased V.K.P.Sunkavallu, having effect throughout the
State of Tamil Nadu.
2. The case of the Plaintiffs is as follows:-
The 1st Plaintiff is the only son of the deceased V.K.P.
Sunkavally and the 2nd Plaintiff is the wife of the deceased. The
Respondent is the only daughter of the deceased. The deceased died on
01.03.2012 at C-3, 4th Floor, Silver Park Apartments, No.24.
Thanikachalam Road, T.Nagar, Chennai-17. At the time of his death, the
deceased left properties at Chettiaragaram Village, Ambattur Taluk. The
religious ceremonies , were conducted in the native village at Unguturu,
West Godavari District, Andhra Pradesh. The deceased, during his life
time, executed a registered Will, dated 24.08.2011 at Chennai and he did
not appoint any Executor in the said Will. The parents of the deceased
Testator predeceased him long ago. There is no other next-of-kin left
behind by the deceased Testator. By the said Will, the deceased had
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bequeathed the property mentioned in the Will, measuring about 10 acres
46 cents situated at Chettiaragaram Village, Ambattur Taluk, Tiruvallur
District, purchased by him in the name of the Respondent to the 1 st
Plaintiff. In respect of the said property, OS.No.301 of 2010 filed for
declaration and permanent injunction by the deceased against the
Respondent is pending. As per the said Will, the 1 st Plaintiff shall pay a
sum of Rs 30 lakhs to the children of the defendant and if the defendant
challenges the Will, the 1 Plaintiff need not pay the said sum. The Plaintiffs
have filed affidavits of both the attesting witnesses.
(ii) The amount of assets, which is likely come into the hands of the
Plaintiffs does not exceed in the aggregate sum of Rs. 2,14,367/- and the
net amount of the said assets, after deducing all the items, which the
Plaintiffs, are by law allowed to deduct, is only of the value of
Rs.1,94,367/-. The Plaintiffs undertake 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 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
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of Probate, with the Will annexed to the Plaintiffs 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.
3.The case of the Defendant, as set out in the written statement,
is as follows:-
The Will is not genuine and has not been executed by the deceased
Testator out of his own volition and willingness. The deceased Testator
has no right to bequeath the property, when the property does not belong
to him, but belonged to the Defendant. The Defendant had also settled the
same in favour of her husband in the year 2009 and OS.No.301 of 2010
filed by his father against her for declaration and permanent injunction is
pending. The Will affecting the right of the Defendant over the property in
the said suit, is the subject matter of the present TOS. The deceased staying
independently away from the Plaintiffs has been admitted by the Plaintiffs.
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As per the said suit, though the property stands in the name of the
Defendant, since it was purchased by the deceased, he sought exemption
under Section 4 of Benami Transactions (Prohibition) Act 1988.
(ii) The Defendant is at abroad and the deceased was only
appointed as a Power Agent to do things that may be necessary for
protecting the property. It is the case of the Plaintiffs that since the
Defendant moved away to USA, she need not be given anything from the
other family properties, to which she is lawfully entitled. When the health
condition of the deceased was very bad nearly for an year, the alleged
purported Will had been executed. The decision in the said suit and the
finality to be reached thereafter would have lot of repercussions on the
issue. As such, the Will is non- est in the eye of law and cannot be
propounded. The Plaintiffs have not come with clean hands. In the absence
of payment of proper court fees, the suit itself is liable to be rejected.
While the Will has referred to three Properties, the same has shown only
one property in the Schedule. The witnesses are not known to the family
and are strangers. The various references to the legal proceedings are
contrary to facts. The Defendant had cancelled the Power of Attorney, on
20.11.1997. The deceased even went to a extent of entering into a MOU
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with one Jeevanandham, projecting himself as a Power of Attorney of the
Defendant and had received money. Thus, in all respects, it can be clearly
seen that the Will is not genuine and has been fabricated and made at the
instance of the 1st Plaintiff for his exclusive benefit. The entire proceedings
are pre-mature in nature, since the title of the Testator to the property is
subjudice in the Civil Suit pending, which has not reached finality. In such
circumstances, the suit is liable to be dismissed.
4. On the pleadings of the parties, the following issues were
framed:-
(1) Whether the Will dated 24.8.2011 is true and genuine?
(2)To what other reliefs are the Plaintiffs entitled?
5. On the side of the Plaintiffs, PW.1 and PW.2 were examined
and Ex.P1 to Ex.P9 were marked and On the side of the Defendant, DW.1
was examined and no document was marked.
6. This Court heard the submissions of the learned counsel on
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either side and perused the materials available on record.
7. The learned counsel for the plaintiffs would submit that the
Testator had purchased the suit property out of his own funds and
registered the same in the name of the defendant when she was nine years
old under the Document No.38 of 2011 in the Sub-Registrar office, T.
Nagar, Chennai. While the Testator had faced a series of litigation with
respect to the properties purchased by him, the plaintiffs were standing in
support of him. Since the defendant is not good term with the Testator, the
Testator filed a suit in O.S. No.301 of 2010 on the file of the Sub-Court,
Poonamallee against the defendant seeking for declaration that he is the
true owner of the suit property wherein injunction order has been passed in
favour of the Testator and the same was made absolutely subsequently.
The said suit is still pending for final disposal. Even though the Testator is
not on good term with his daughter, he had made exclusive provision for
his grandchildren, born from his daughter, the defendant herein, to the tune
of Rs.30 lakhs conditional upon not disputing the Will.
8.It has been further submitted that the 2nd plaintiff-wife of the
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Testator has given her consent affidavit in granting the Letter of
Administration in favour of the 1st plaintiff vide Ex.P4. Further, affidavit of
two attesting witnesses have been filed under Ex.P5 and Ex.P6 to prove the
Will who were present at the time of execution of Will dated 24.08.2011.
Moreover, one of the Attesting Witness in the said Will ie. T.Vivian was
examined as PW.2 to prove the signature and state of mind of the Testator
at the time of the execution of the Will. Hence, he prays this Court to grant
letter of Administration in favour of the 1st Plaintiff with Will annexed.
9. The learned counsel for the defendant would submit that the
suit property was purchased and registered in the name of the defendant by
her father considering the welfare and future goodness of the defendant.
After the defendant has become major in the year 1976 and got married,
the suit property was settled in her husband favour in the year 2009. While
being so, the Testator has no right to bequeath the property belonged to his
daughter to his son by way of Will since the subject suit property is in the
name of the defendant's husband by way of Registered Settlement Deed
dated 17.12.2009 on the file of SRO, Jt. II, Saidapet.
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10. It has been further submitted that the Testator was not well and
was staying on his own leaving the plaintiffs herein. While the Testator was
suffering from kidney problem and undergoing regular dialysis during the
period of execution of the said Will, how the Testator will execute the said
Will with good health and sound mind. Thus, it is clear that the Will is not
genuine and has been fabricated and made at the instance of the 1st plaintiff
for his exclusive benefit. Hence, he seeks to dismiss the TOS.
Issue Nos.1 and 2:
11. Admittedly, the suit property was purchased by the Testator in
his daughter's favour/the defendant herein, while she was minor at the age
of 9 out of his own income. Further, the defendant being 9 years old has no
income to purchase the suit property and she was depending on her father
for everything. Hence, it is proved that the said property has been
purchased by the father in the name of his daughter.
12. Further, in view of O.S. No.301 of 2010 which is pending
before the Sub-ordinate Judge, Poonamallee, filed by the Testator seeking
for declaration, against his daughter/the defendant herein, it can be seen
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that the Testator has no good term with his daughter. Hence, it is evident
that the suit property was bequeathed by the Testator in his son favour
excluding his daughter/defendant herein.
13. It is proved on perusal of affidavit and evidence of PW.2, that
he was a friend of the Testator and present on the day of execution of the
Will on 24.08.2011 and yet another witness namely Mr.K.S. Kumar, was
also present and they saw the testator, putting his signature in the Will and
the testator saw them putting their signatures as witnesses and thereby he
has also spoken about the attestation of the document, in accordance with
law. The evidence of P.W.2 would also go to show that the testator was in
a sound and disposing state of mind and was in a good health, at the time
of execution of Ex.P1 Will. The said evidence of PW2 would prove the
attestation, execution of the Will and also the sound and disposing state of
mind of the testator at the time of execution of Ex.P1 Will.
14. Even though the contentions on the side of the defendants with
regard to the suspicious circumstances in execution of the Will and
attesting witnesses are strangers to the Testator, they have not proved by
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way of oral and documentary evidence. Further, the Testamentary
jurisdiction is invoked only for the purpose of deciding the proof of the Will
in order to grant issuance of Letters of Administration. Considering the oral
and documentary evidence, the said Will is proved, hence, this Court is
inclined to grant Letters of Administration in favour of the 1st plaintiff
subject to the result of the O.S. No.301 of 2010.
15. In the result, the TOS is decreed subject to the out come of the
O.S. No.301 of 2010 pending in the Trial Court.
(i) The Letters of Administration shall be issued in favour of the 1st
plaintiff in respect of the Will executed by the deceased V.K.P. Sunkavally,
subject to outcome of of the pending Civil Suit.
(ii)The 1st plaintiff is directed to duly administer the properties and
credits of the deceased morefully described in the schedule The 1st Plaintiff
is also directed to execute a security bond for a sum of Rs.25,000/- (Rupees
Twenty Five Thousand Only) in favour of the Assistant Registrar (O.S.II),
High Court, Madras, within a period of three (3) months as required under
law. The 1st plaintiff is further directed to render true and correct accounts
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once in a year.
24.11.2023
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 – Mrs. S Rajalakshmi
2. P.W.2 – Mr. T.Vivian
List of Witnesses Examined on the side of the Defendant:-
1.D.W.1 – Mr. Pethi T. Sarguru
List of Exhibits Marked on the side of the Plaintiffs:-
1.Ex.P1 is the Original Will dated 24.08.2011.
2.Ex.P2 is the computer generated copy of the Death Certificate
3. Ex.P3 is the Original legal heirship Certificate of V.K.P.Sunkavally
dated 24.08.2012.
4.Ex.P4 is the Original Consent Affidavit of Mrs.Rajalakshmi (PW.1)
dated 29.06.2012.
5.Ex.P5 is the original affidavit of Mr.Vivin dated 29.06.2012.
6.Ex.P6 is the original affidavit of Mr.K.S. Kumar dated 29.06.2012.
7. Ex.P7 is the Photocopy of the common counter affidavit filed in C.S.
No.673 of 2008 (Marked in D.W.1 cross)
8. Ex.P8 is the Photocopy of the Written Statement filed in C.S. No.301
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of 2010 (Marked in D.W.1 cross)
9.Ex.P9 is the Photocopy of the Memorandum of Understanding (Marked
in D.W.1 cross)
List of Exhibits Marked on the side of the Defendant:-
--Nil--
24.11.2023
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A.A.NAKKIRAN, J.
Srcm/Lbm
Pre-Delivery Judgement in
24.11.2023
https://www.mhc.tn.gov.in/judis
