Madras High Court
S.T.Sundari (Now Deceased) vs R.Venkataraman on 23 May, 2024
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 08.12.2023
PRONOUNCED ON : 23.05.2024
CORAM:
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
T.O.S. No.25 of 2014
(OP.No.4170 of 2012)
S.T.Sundari (now deceased)
K. Vijayarani W/o. J. Kuberan
...Plaintiff
..Vs..
1. R.Venkataraman
2. Gunavathi
3. G. Suseela
4. G. Panchanathan
5. S. Pramila ..Defendants
(The applicant in Application No.1501 of 2022 brought on record as Legal
heir of the deceased Sole plaintiff, amended as per order dated 06.04.2022
in Application No.1501 of 2022)
Prayer:- This Testamentary Original Suit has been filed, under Sections 255
and 276 of the Indian Succession Act, to grant letters of Administration to
the petitioner with the Will annexed to the petition, to her as the legatee of
the said deceased having effect throughout the State of Tamil Nadu.
For Plaintiff : Mr.V.Srikanth
For Defendants : Mr.Vimal B. Crimson
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JUDGMENT
This Testamentary Original Suit has been filed to grant letters of
Administration to the petitioner with the Will annexed to the petition, to her
as the legatee of the said deceased having effect throughout the State of
Tamil Nadu.
2. The case of the Plaintiff, as set out, in the plaint is as follows:
(i) The deceased Testatrix S. Thayanayagi died on 25.03.1997
who possessed property within the State of Tamilnadu. Letter 'A' is the last
Will and Testament of the said deceased and was duly executed on
11.06.1995 in the presence of the witnesses whose names appear at the foot
thereof. The Testatrix appointed Mr.Ganesan who is the husband of the 3rd
defendant and father of the defendants 4 and 5 herein, as legatee in the Will.
The husband of the deceased Testatrix had pre-deceased her in 1987. She
did not leave behind any class-I legal heir as per the Hindu Succession Act,
1956. Since she did not have children, the plaintiff is the cousin sister of the
deceased Testatrix and Mr.Ganesan is the nephew of her husband. The 2nd
defendant is the niece of the testatrix. The said Ganesan and the defendants
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1 and 2 are also legatees under the said Will. He died in the year 2000
without obtaining probate of the Will dated 11.06.1995. Taking advantage of
the death of said Ganesan, the respondents had conspired to deprive
plaintiff's 1/4th share of bequest, have filed OP.No.359 of 2008 projecting
some other Will dated March 1988 said to have been executed by the
Testator. The petitioner has filed separate application to revoke the grant
dated 16.07.2009 made in the said O.P. No.359 of 2008.
(ii) The amount of assets which is likely to come to the plaintiff's hand
does not exceed in the aggregate a sum of Rs.5,20,000/- and the net amount
of the said assets after deducting all items which the plaintiff is as per law
allowed to deduct is only of the value of Rs.5,00,000/-. No application has
been made to any District Court or Delegate or to any other High Court for
probate of any Will of the said deceased with or without Will annexed of his
properties and credits of the deceased S.Thayanayagi. The plaintiff hereby
undertakes to duly administer the property and credits of the said late
deceased, S.Thayanayagi. in any way concerning her Will by first paying her
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
this regard within six months from the date of grant of probate to the
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petitioner herein and also to render to this Hon'ble Court a true account of
the said property and credits within one year from the said date. Hence, she
prays to grant letters of Administration with Will. Annexed to the plaintiff
beneficiaries under the Will of the said deceased. The plaintiff is the
deceased husband's sister's daughter-in-law, as a beneficiary under the Will
of the said deceased, filed this Testamentary Original Suit seeking the reliefs,
as stated above.
3. The case of the Defendants/respondents in a nutshell, as set out in
their written statement, is as follows:-
(i) Smt. Thayanayagi Ammal was the owner of the suit property
by virtue of sale deed dated 04.09.1961 registered as Doc.No.2729/1961 in
the Sub-Registrar Office, T.Nagar, Chennai. Smt.Thyanayagi Ammal died on
25.03.1997 leaving behind a Will dated 30.03.1988 and her husband pre-
deceased her in the year 1987. They had no children out of wedlock. In the
said Will dated 30.03.1988 Smt.Thyanayagi Ammal had bequeathed the
property in favour of P.Ganesan, who was the son of the eldest sister of
T.K.Swaminathan and also appointed him as the executor. The respondents
3 and 4 are the legal heirs of P. Ganesan who had derived their right to the
property of Smt.Thyanayagi Ammal through him.
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(ii).It is further stated that they filed an application in
OP.No.359 of 2008 and sought an order for letters of Administration
pertaining to the Will dated 30.03.1988 and had obtained an order of grant
of letters of administration from this court on 16.07.2009. It is further stated
that by virtue of the order dated 16.07.2009 the respondents had derived the
title and ownership of the property and thereby substituted their names in the
revenue and other documents. The respondents had tried to take possession
of the said property as rightful owners, whereas the petitioner restricted the
same on the guise of forged Will dated 11.05.1995. Hence the respondent
sought the assistance of the police to remove the petitioner's occupation who
were in illegal occupation. The petitioner had filed two applications viz.,
A.Nos.5896/2011 for stay and A.No.5178/2011 for revocation, of the order
dated 12.07.2012 granting letters of Administration pertaining to the Will
dated 30.03.1988 and the A.No.5178/2011 was allowed. Aggrieved by the
same, the respondents had preferred OSA.No.304/2012 against the order
and decreetal order dated 12.07.2012. It is further submitted that the present
petition is against law and has no legal validity as if the 3 rd respondent
husband and respondents 4 and 5 father is also one of the legatees in the
alleged Will dated 11.06.1995. It is further stated that the respondents class I
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heirs under the Hindu Succession Act who are entitled to inherit the property
of the testatrix even in the absence of the Will. It is further submitted that
since the testatrix had no issues, the property shall accordingly devolve on
the legal heirs mentioned under Section 15 (1) (b) of Hindu Succession Act.
Going by the said provision of law, the appellants are none other than the
class II heirs contemplated in Sec.8 (b) more specifically the legal heirs
under Clause IV of schedule. The present petition is based on the alleged
Will dated 11.06.1995 is nothing but an fabrication for the purpose of the
present case and not maintainable in law. Hence, the petition is liable to be
dismissed.
4. On the pleadings of the parties and hearing the learned counsel
appearing for both sides, the following issues were framed for
determination:-
(1) “Is not the last Will dated 11.06.1995 of deceased Testatrix
True and genuine?”
(2) “To what relief the parties are entitled to?”
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5.On the side of the Plaintiffs, Ex.P1 to Ex.P29 were marked
and PW.1 to PW.29 were examined. On the side of the Defendants, Ex.D1 to
Ex.D11 were marked and DW.1 was examined. Further, CW.1 was
examined.
6. This Court heard the submissions of the learned counsel on either
side and perused the material available on record.
7.The learned counsel for the plaintiff would submit that the plaintiff
(now deceased) filed A. No.5178 of 2011 in O.P. No.359 of 2008 to revoke
the Letter of Administration dated 16.07.2009, that was obtained in respect
of the earlier revoked Will dated 30.03.1988 vide Ex.D1. This Court after
hearing of the matter by its order dated 12.07.2012 revoked the grant made
in the aforesaid O.P. Being aggrieved, OSA No.304 of 2012 was preferred
against the order dated 12.07.2012 passed in A. No.5178 of 2011 wherein
the Hon'ble Division Bench of this Court confirmed the revocation, paving
way for adjudication of the Last Will and Testament dated 11.06.1995 vide
Ex.P1 in the present suit.
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8.It has been further submitted by the learned counsel for the plaintiff
that out of two attesting witnesses, who have subscribed their signatures in
the Last Will and Testament dated 11.06.1995 (Ex.P1), the 1st attesting
witness M.Dhanapal had died as early as on 30.11.2007. vide Ex.P27.
Another attesting witness ie. Mr.G. Balachandran died during the pendency
of the suit proceedings. As both attesting witnesses died at the time of trial,
the plaintiff has examined P.W.3 being the son of 2nd attesting witness
G.Balachandran who had identified the signature of the 2nd attesting witness
in order to prove the said Will and further, the plaintiff has examined PW.2
and CW1 who were present along with the Testatrix on 11.06.1995 at the
time of execution of Ex.P1 and attested and notarized thereby the Will is
proved in terms of Section 69 of the Indian Evidence Act. Hence, he seeks
this Court to pass a decree granting Letters of Administration in favour of the
plaintiff.
9.The learned counsel for the defendant would submit that Smt.
Thayanayagi Ammal had bequeathed the property in favour of P.Ganesan,
who was the son of the eldest sister of T.K.Swaminathan and also appointed
him as the executor. The respondents 3 and 4 are the legal heirs of P.
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Ganesan who had derived their right to the property of Smt.Thyanayagi
Ammal through him.
10. It has been further submitted by the learned counsel for the
defendant that the defendants filed an application in OP.No.359 of 2008
and sought an order for letters of Administration pertaining to the Will dated
30.03.1988 and had obtained an order of grant of letters of administration
from this court on 16.07.2009. Subsequently, the respondents had derived
the title and ownership of the property and thereby substituted their names in
the revenue and other documents. The respondents had tried to take
possession of the said property as rightful owners, whereas the petitioner
restricted the same on the guise of forged Will dated 11.05.1995. Hence the
respondent sought the assistance of the police to remove the petitioner's
occupation who were in illegal occupation. The petitioner had filed two
applications viz., A.Nos.5896/2011 for stay and A.No.5178/2011 for
revocation, of the order dated 12.07.2012 granting letters of Administration
pertaining to the Will dated 30.03.1988 and the A.No.5178/2011 was
allowed. Aggrieved by the same, the respondents had preferred
OSA.No.304/2012 against the order and decreetal order dated 12.07.2012
and the same was dismissed.
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11.The learned counsel for the defendants would further submit that
the present petition is against law and has no legal validity as if the 3 rd
respondent husband and respondents 4 and 5 father is also one of the
legatees in the alleged Will dated 11.06.1995. The respondents class I heirs
under the Hindu Succession Act who are entitled to inherit the property of
the testatrix even in the absence of the Will. Since the testatrix had no
issues, the property shall accordingly devolve on the legal heirs mentioned
under Section 15 (1) (b) of Hindu Succession Act. Going by the said
provision of law, the appellant is none other than the class II heirs
contemplated in Sec.8 (b) more specifically the legal heirs under Clause IV
of schedule. The present petition is based on the alleged Will dated
11.06.1995 is nothing but an fabrication for the purpose of the present case
and not maintainable in law. Hence, the petition is liable to be dismissed.
12. In this case, P.W.1 deposed that the Will dated 11.06.1995 was
executed by the deceased Tmt. S.Thayanayagi in the presence of the two
witnesses and the Testatrix died on 25.03.1997. The Testatrix has appointed
Mr.Ganesan as the executor of the Will and he also died in the year 2000.
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On the side of plaintiff, Ex.P1-Original Will dated 11.06.1995, Ex.P2- Death
Certificate of the Testatrix Mrs. S.Thiaya Nayaki were marked.
13. On perusal of the records, it is seen that the 1st Attesting
Witness M. Dhanapal died on 30.01.2007 vide Ex.P27-Death Certificate.
Since the 2nd Attesting Witness one G. Balachandran was alive at the time
of filing the petition, he had filed his affidavit as Attesting Witness along
with the Petition in O.P. No.417 of 2012. During the pendency of the suit, he
also died on 27.05.2013.Vide Ex.P-28. In view of the non availability of
both the attesting witnesses, the Plaintiff is bound to prove the Will in terms
of Sec. 69 of the Indian Evidence Act which describes as follows:
"Sec. 69 - Proof were no attesting witness found-
If no such attesting witness can be found or if the document
purports to have been executed in the United Kingdom, it must
be proved that the attestation of one Attesting Witness at least
is in hand writing and that the signature of the person
executing the document is in the hand writing of that person."
14. In terms of Sec. 69 of the Indian Evidence Act, the PW-3 Mr. B.
Raja was examined who is the son of 2nd attesting witness namely Late. G.
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Balachandran. In his affidavit and cross examination, it has been averred that
the signature of the 2nd Attesting Witness, G. Balachandran is that of his
father and he knew his signature very well. Further, CW1-Ms. Kalaiarasi -in
her cross examination, it has been averred that the Will dated 11.06.1995
has been drafted by her with the guidance of the Testatrix Tmt.
S.Thayanayagi and she was in soundness of mind at the time of the
execution of the Will dated 11.06.1995.
15. Even though the defendants have raised the contentions of
suspicious ground in the execution of Will dated 11.06.1995, they have not
proved the same by letting in oral and documentary evidence. Further, in so
far as the claim of the defendant with regard to the Will dated 30.03.1988,
this Court by order dated 16.07.2009 granted the Letter of Administration,
vide Ex.D1, this Court by order dated 12.07.2012 in A.No.5178 of 2011 in
O.P. No.359 of 2008 revoked the grant of letters of administration filed by
the plaintiff /defendants herein. Being aggrieved by the said Judgment, OSA
No.304 of 2012 filed by the plaintiff/defendant herein was also dismissed by
Judgment dated 27.09.2016.
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16.Under such circumstances, the plaintiff has proved her case
by examining the son of the 2nd attesting witness as PW-3 and C.W.1- Ms.
Kalaiarasi being the Advocate and Notary Public, who has drafted the last
Will dated 11.06.1995 executed by the Testator. The evidence of P.W.2,
P.W3 and C.W.1 would 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 CW1 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. 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. Hence, in the event of failure to
produce the oral and documentary evidence on the side of the defendants
during the hearing to prove the said Will as fake and fabricated one, the
plaintiff has proved the Will dated 11.06.1995 by producing oral and
documentary evidence in the manner known to law. Therefore, the dispute in
between the defendants and the plaintiff would not in any way be considered
as an impediment for this Court to grant Letters of Administration in favour
of the plaintiff, on the proof of the Will. Accordingly, Issue No.1 is answered
in favour of the Plaintiff. Since Issue No.1 is answered in favour of the
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plaintiff, the plaintiff is entitled to grant Letters of Administration in her
favour, on the proof of the Will. Accordingly, Issue No.2 is answered.
17.In the result, the Testamentary Original Suit is decreed. No Costs.
18.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.
23.05.2024
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Web:Yes/No
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1. List of Witnesses examined on the side of the Plaintiff:-
1. PW.1 – Mrs. S.T. Sundari
2. PW.2 - Mr. Kuberan
3. PW.3 - Mr. D. Raja
2. List of Witnesses examined on the side of the Defendants:-
DW.1 – Mr. G. Panchanadan
3. C.W.1 - Mrs. K.N. Kalaiarasi
4. List of Exhibits marked on the side of the Plaintiff:-
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1. Ex.P1 is The original Will dated 11.06.1995 executed by the
testatrix Mrs. S. Thiaya Nayaki. [Safe Custody]
2. Ex.P2 is the The original death certificate of the testatrix Mrs. S.
Thiaya Nayaki dated 25.03.1997
3. Ex.P3 is The original general paper publication effected in Tamil
Daily "Makkal Kural" on 11.09.2013.
4.Ex.P4 is The original general paper publication effected in English
Daily "Trinity Mirror" on 19.09.2013.
5.Ex.P5 is the The original Layout plan dated 24.10.1961 concerning
Plot No.10 R.S.No. 160/3, Kodambakkam Village, Madras.
6.Ex.P6 is the Series are the original representation dated 21.02.1995
given to the Commissioner Corporation of Madras by the
Testatrix.
7.Ex.P7 is the Inland letter communication written by Mr.Durai
Muruganandam and Mrs.K.Mahalakshmi to Mr.J.Kuberan
(PW2).
8.Ex.P8 is the the Domestic gas customer card of Mr.J.Kuberan
(PW2) dated 3-4- 1991.
9.Ex.P9 is the the photo copy of the Driving License of Mr.J.Kuberan
(PW2). (Compared with original.)
10.Ex.P10 is the Series of the LIC premium receipt in the name of
Kuberan (PW2).
11. Ex.P11 is the photo copy of the passport of Mr.J.Kuberan (PW2)
dated 31/8/1995. (Compared with original.)
12. Ex.P12 is the Series of original Money order receipts issued in
favour of Mr.Kuberan by Mr.Jeevarathinam.
13. Ex.P13 is the original Savings Account Passbook of Mr.Kuberan
(PW2) dated 27/1/1999.
14. Ex.P14 is the original Property Tax Bill dated 1/3/1999.
15. Ex.P15 is the original Property Tax Bill dated 28/2/2005.
16. Ex.P16 is the certified copy of Order passed in Crl.O.P.
No.30226/2011 dated 9/1/2012 by Hon'ble High Court, Madras.
17. Ex.P17 is The order passed in A.No.5178/2011 in O.P.
No.359/2008 by Hon'ble High Court, Madras
18. Ex.P18 is Order in OSA No.304/2012 dated 27/9/2016 dismissing
the appeal preferred by the defendants against the order of
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revocation made in A. No.5178/2011 in O.P. No.359/2008.
19. Ex.P19 is the cremation certificate of Thaiyalnayagi ammal dated
25/3/1997.
20. Ex.P20 is the property tax demand card commencing from the
second half of 1987-88 of Thaiyanayagi.
21. Ex.P21 is the Postal Savings bank account commencing from
4/12/1961 S. Thiayanayaki and T.K.Saminathan.
22. Ex.P22 is the Indian Bank Pass Book of S.T.Sundari of S/B
Account. No.444 971 466 from 18/1/2004.
23. Ex.P23 is the Indian Bank Pass Book of S.T.Sundari of S/B
Account No.444 971 466 from 25/2/2012.
24. Ex.P24 is the C.C.C. Bank Pass Book of S.T.Sundari of S/B
Account No.56.
25. Ex.P25 Series are the Medical Report and Prescription of Smt.S.
Thiayanagi taken care by the plaintiff.
26. Ex.P26 is the Property tax demand card for the year 1993 to 2003.
27. Ex.P27 is the the computer generated copy of Death certificate of
M.Dhanapal dated 2/4/2019.
28. Ex.P28 is the Computer generated copy of Death Certificate of
G.Balachandran.
29. Ex.P29 is the Photo copy of Voter's I.D Card of PW3, Mr.B.Raja
(Compared the original, verified and returned).
5. List of Exhibits marked on the side of the Defendants:-
1. Ex.D1 is the xerox copy of Last Will already filed in O.P.
No.359/2008 executed by Late Thayanayagi Ammal. (Objected.
Marked subject to admissibility and proof on the point that it is
unprobated Will and xerox copy.)
2. Ex.D2 is the the Original Death Certificate dated 2/3/2000 of Late
Ganesan.
3. Ex.D3 is the xerox copy of FIR No.1511/2011. (Objected. Marked
subject to admissibility.)
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4.Ex.D4 is the Original GO.Ms.No.1002 obtained through RTI and
letter. (Objected. Marked subject to relevancy.)
5.Ex.D5 is the Original Letter dated 20.05.1987 sent by Late
Thayanayagi Ammal to Indian Bank Manager.
6.Ex.D6 is the Original Letter dated 23.06.1987 sent by Late
Thayanayagi Ammal to ESD Dehu, Maharashtra. .
7.Ex.D7 the Application for grant of Family Pension sent by Late
Thayanayagi Ammal.
8.Ex.D8 is the Memorial Ceremony Card of Thayanayagi Ammal.
9.Ex.D9 is the Madras Corporation Revenue Department Receipt in
the name of Thayanayagi Ammal.
10.Ex.D10 is the Madras State Electricity Board communication in the
name of Thayanayagi Ammal.
11. Ex.D11 is the Order of Asst. Commissioner of Urban lands in the
name of Thayanayagi Ammal.
23.05.2024
A.A.NAKKIRAN, J.
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Pre-Delivery Judgement in
23.05.2024
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