Madras High Court
J. Bharath Kumar vs R. Kalavathy on 13 September, 2023
1 TOS No.33 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
T.O.S.No.33 of 2019
J. Bharath Kumar ...Plaintiff
Vs.
1. R. Kalavathy,
2. J. Narayani ...Defendants
Prayer:- This Suit filed under Sections 232 and 276 of the Indian
Succession Act XXXIX of 1925 and Order XXV Rule 4 of O.S.Rules for
grant of Letters of Administration.
For Plaintiff : Ms.Rukmani R.V.
(For M/s.P.B. Ramanujam)
For Defendants : No Appearance
*****
JUDGMENT
This suit has been filed by the plaintiff originally as O.P.No.583 of
2018 and since the the defendants filed caveat, it has been converted into
T.O.S. The said O.P.No.583 of 2018 was filed by the plaintiff/petitioner, for
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the grant of Letters of Administration in respect of the Will dated
17.03.2017, executed by the deceased K.J. Kamala who died on 08.12.2017.
2.The averments mentioned in the plaint are as follows:-
2(i) The plaintiff is the cousin brother and the sole beneficiary under
the Will of the property of the deceased as per the provisions made by the
deceased to the said Will dated 17.03.2017 and mentioned in the Will.
There is no executor appointed under the said Will.
2(ii).The deceased testatrix K.J. Kamala died on 08.12.2017 at Rai
Memorial Medical Centre, Anna Salai, Teynampet, Chennai - 600 018,
survived by the following legal heirs:
S.No Name Relationship Age Rank in O.P.
1 R. Kalavathy Sister Not known 1st respondent
2 G. Pushpalatha Sister 62 2nd respondent
3 C. Amudha Sister 56 3rd respondent
4 J. Narayani Sister Not Known 4th respondent
The Testatrix died as spinster, at the age of 68 years, her marriage having
been dissolved by the Family Court on 22.07.2010 and the parents of the
Testatrix also predeceased her.
2(iii) It is stated that the Testatrix bequeathed her immovable property
to the plaintiff absolutely. The defendants had filed their caveat/objections,
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stating that the said Will dated 17.03.2017 is not genuine and registered and
that the above captioned O.P. has been filed with a fabricated document.
The plaintiff stoutly denies the said allegations, being absolutely false and
baseless, which lack of merit and have been put forward with ulterior
motives. All the more, in spite of sufficient opportunities, the defendants
did not come forward to file their Written Statements and they were set Ex-
parte by this Hon'ble Court on 12.07.2023. Further, the other next of kin and
interested persons have not chosen to contest the above captioned O.P. or
the above suit for that matter.
2(iv) The amount of assets which are likely to come into the
plaintiff/petitioner's hands, does not exceed in the aggregate sum of
Rs.12,56,236.83 and the net amount of the said assets, after deducting all
items which the plaintiff/petitioner is by law allowed to deduct, is of the
value of Rs.12,56,236.83.
2(v) All the next of kin and other persons interested are impleaded as
parties/respondents to the original petition. There is no next of kin or other
person interested, to be impleaded. There is no other application made at any
District Court or Delegate or to any other High Court for grant of Letters of
Administration with or without the Will annexed to her property and credits.
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2(vi) The plaintiff/petitioner undertakes to duly administer the
property and credits of the Testatrix, Late. K.J. Kamala concerning the said
last Will and Testament, by paying her debts first 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 this Court within six months
from the date of grant of Letters of Administration to the plaintiff/petitioner,
and also to render to this Court a true account of the said property and
credits, within one year from the said date.
2(vii) Hence, the plaintiff may be allowed to prove the Will in
common form, and that Letters of Administration thereof, to have effect
limited to the State of Tamil Nadu, may be granted to him.
3. The defendants remained absent without filing any written
statement and therefore, they were set ex-parte on 12.07.2023 by order of
this Court.
4. The plaintiff examined himself as PW1 and examined the other
witness, PW2, who is one of the attesting witnesses to the Will and had
produced Exs.P1 to P5, in order to substantiate his case.
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5. Heard the learned counsel for the plaintiff.
6. The learned counsel for the plaintiff would submit in his argument
that the plaintiff is cousin brother and the defendants in T.O.S., and the other
respondents in the O.P., are the sisters of the deceased K.J. Kamala. He
would further submit in his arguments that the said K.J. Kamala being a
divorcee died on 08.12.2017 as a spinster, and her parents predeceased her
and therefore, the plaintiff and the defendants and other respondents in the
O.P., are the next of kin to the deceased K.J. Kamala, and the deceased
K.J.Kamala executed a Will in respect of the suit property, in the presence of
two attesting witnesses, when she was in a sound and disposing state of
mind, bequeathing in favour of the plaintiff. He would further submit in his
arguments that the affidavit of one of the attesting witness has been marked
as Ex.P5. He would also submit that despite the notices have been sent to
the respondents 1 to 4, they have neither appeared nor filed any written
statement before this Court. He would further submit that the original Will
has been produced as Ex.P1 and the attesting witness PW2 has proved the
attestation, execution and the sound and disposing state of mind of the
testatrix at the time of execution of the Will. He would further submit that in
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the testamentary proceedings, the title of the testatrix need not be gone into
as it is specially meant for the proof of execution of the Will executed by the
testatrix. Therefore, he would submit in his arguments that the Will executed
by the testatrix has been proved and therefore, Letters of Administration
may be granted in favour of the plaintiff and the suit may thus decreed
against the defendants.
7. Considering the arguments advanced by the learned counsel for the
plaintiff and on perusal of the records produced thereunder, it is seen that the
plaintiff and the respondents 1 to 4 in the O.P., who are next of kin of the
deceased K.J. Kamala. According to the plaintiff, the deceased being a
divorcee died as a spinster and the parents of the Testatrix predeceased her.
Therefore, this Court could understand that there is no other person
interested in the property of the deceased K.J. Kamala, to be impleaded in
the suit. Ex.P1 is the original Will dated 17.03.2017. Ex.P2 Death Certificate
of the deceased K.J. Kamala dated 14.12.2017. Ex.P3, Legal Heir Certificate
of J.Pankajamalli dated 08.12.1994. Ex.P4, certified copy of the order in
O.P. No.2389 of 2010 dated 22.07.2010 passed by the Family Court,
Chennai. Ex.P5 is the affidavit of attesting witness. The plaintiff has
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produced the original Will as Ex.P1. He would speak to the effect that his
cousin sister had executed a Will, in respect of disposition of her property.
Despite the defendants/respondents were served with notice by the plaintiff,
they have not chosen to file their written statement against the grant of
Letter of Administration. However, the plaintiff is at the obligation of
proving the Will, in accordance with the provisions of Section 68 of the
Indian Evidence Act. When the evidence of the attesting witness PW2 is
perused, he would speak to the effect that he was present on the day of
execution of the Will on 17.03.2017 and yet another witness namely Mr.AN.
Palaniyappan, was also present and they saw the testatrix, putting her
signature in the Will and the testatrix saw them putting their signatures as
witnesses and thereby she 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 testatrix 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.P2
Will. The testamentary jurisdiction is invoked only for the purpose of
deciding the proof of the Will in order to grant issuance of Letters of
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A.A. NAKKIRAN., J.
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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 plaintiff.
8. For the foregoing discussion, this Court is of the view that the
plaintiff has proved the Will as required under law and therefore, the suit for
the grant of Letters of Administration of the said Will is decreed as prayed
for.
9. (a) In the result, the suit is decreed as prayed for.
(b) The Letters of Administration shall be issued in favour of the
plaintiff in respect of the Will executed by the deceased K.J. Kamala.
13.09.2023
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Note: The plaintiff shall 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.
T.O.S.No.33 of 2019
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