Madras High Court
M.Jayanthi vs S.Sriram on 8 August, 2024
Author: S.S. Sundar
Bench: S.S. Sundar
O.S.A.No.195 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.08.2024
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MR. JUSTICE K. RAJASEKAR
O.S.A.No.195 of 2023
and
C.M.P.No.22366 of 2023
M.Jayanthi ... Appellant
Vs.
S.Sriram ... Respondent
Original Side Appeal filed under Order XXXVI Rule 1 of Original
Side Rules r/w. Clause 15 of Letters Patent against the order dated
25.07.2023 in A.No.119 of 2023 in T.O.S.No.17 of 2015 on the file of this
Court.
For Appellant : Mr.P.V.Sudhakar
For Respondent : M/s.S.Shyamala
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O.S.A.No.195 of 2023
JUDGMENT
(Judgment was delivered by S.S. SUNDAR, J.)
This Original Side Appeal is directed against the order of the learned
Single Judge in A.No.119 of 2023 in T.O.S.No.17 of 2015, dated
25.07.2023.
2.The appellant is the defendant in T.O.S.No.17 of 2015. The
respondent originally filed an original petition for grant of Letter of
Administration to a Will stated to have been executed by Mr.Y.E.Seshachari,
who is the appellant's father. Since the appellant disputed the Will, the
proceedings were converted as Testamentary Original Suit in T.O.S.No.17 of
2015 before the Original Side of this Court. After commencement of trial,
the respondent/plaintiff examined himself as P.W.1. One of the attesting
witness to the Will is the father-in-law of the respondent, by name
Mr.S.Kandaswamy. Stating that the respondent's father-in-law, who is one
of the attesting witness, has lost his vision and is totally blind, an application
in A.No.119 of 2023 was filed for examination of one Mr.K.Muthuvel, son
of Mr.S.Kandaswamy, who is the attesting witness, to identify the signature
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of the attesting witness in the Will. The said application was allowed by the
learned Judge by order impugned in this appeal. Aggrieved by the same, the
sole defendant in T.O.S.No.17 of 2015 has preferred the above appeal.
3.Learned counsel appearing for the appellant submitted that the
attesting witness is none else than the father-in-law of the
respondent/plaintiff. It is stated that the attestor is alive and that he is only
suffering from eye problems. He also submitted that there is no evidence to
show that the attesting witness is incapable to testify before the Court. He
further stated that, in the absence of any proof that the attesting witness is
not capable of giving evidence to identify his signature, the application to
examine somebody else to identify the signature of the attesting witness,
cannot be entertained.
4.This Court, for the present, is not inclined to go into the merits or as
to the genuineness of the Will. The burden lies on the plaintiff to prove the
Will in a testamentary proceedings. The plaintiff filed an application to
examine the son of the attesting witness to identify the signature of the
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attesting witness in the Will. The specific case in the affidavit filed in
support of the application is that the attesting witness has lost his eyesight
and therefore, it is the case of plaintiff that he is not competent to depose to
prove the attestation of the Will. In the said circumstances, the only
alternative available to the plaintiff is to call anyone else to prove his
signature. Even though a dispute is raised with regard to the eyesight of the
attesting witness, it is open to the appellant to prove his case that the
attesting witness is capable of identifying his signature and that his eyesight
is perfectly normal. When it is admitted that the attesting witness is none
else than the father-in-law of the plaintiff, there is no reason why the
respondent/plaintiff should examine his brother-in-law instead of his father-
in-law. This Court has no reason to doubt the bona fides of the application
filed by the respondent/plaintiff. Therefore, it is not for the appellant to
dictate to plaintiff how he should prove the Will. When the question is about
proof of Will, this Court is unable to countenance the arguments of learned
counsel for the appellant. It is also for the plaintiff to examine any other
witness to prove attestation, if required.
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5.Therefore, without expressing any opinion on the sufficiency of the
evidence to prove attestation, this Original Side Appeal is dismissed as
devoid of any merits. No costs. Consequently, connected miscellaneous
petition is closed.
(S.S.S.R., J.) (K.R.S., J.)
08.08.2024
mkn
Internet : Yes
Index : Yes / No
Neutral Citation : Yes / No
S.S. SUNDAR, J.
and
K. RAJASEKAR, J.
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mkn
08.08.2024
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