Madras High Court
M. Govindasamy vs D. Vijayaraghunathan (Died) on 30 May, 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 31.01.2024
PRONOUNCED ON : 30.05.2024
CORAM:
THE HON`BLE MR.JUSTICE A.A.NAKKIRAN
T.O.S. No. 41 of 2018
M. Govindasamy
....Plaintiff
Vs
1.D. Vijayaraghunathan (Died)
2.D. Mageswari
3.Kavitha
4.Preetha
....Defendants
(Defendants 2 to 4 have been impleaded as per order passed in A.No. 284 of
2020 dated 13.03.2020)
Prayer:- Petition filed for Probate of the Last Will and Testament under
Section 222 & 276 read with Order XXV Rule 4 of O.S.rules for prove the
Will in common form and that probate thereof to have limited to the State of
Tamilnadu may be granted to him.
For Plaintiff : Mr.D. Divakaran.
For Defendants : Mr.S. Sai Shankar for D2 to D4.
1/18
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******
JUDGMENT
This Testamentary Original Suit is filed for prove the Will in
common form and that probate thereof to have limited to the State of
Tamilnadu may be granted to the plaintiff.
2. The case of the Plaintiff, as set out, in the plaint is as follows:
(i) The Petitioner states that Mr.Deenadhayalan, Son of
P.Duraisamy Naicker, died on 13.11.2009, at No.3-28, Annai Sathya Nagar
Main Road, Ramapuram, Chennai- 600 089, wherein he was lastly residing.
The said Late Mr. Deenadhayalan had possessed of and left property in
Chennai, within the state of Tamilnadu and within the Jurisdiction of this
Hon'ble Court.
(ii)The petitioner submits that the said Late Mr.Deenadhayalan
had left behind his legal heirs namely his wife and two children. Mr.
Deenadhayalan had executed a Registered Will in the Office of the Joint II
Sub Registrar, Thousand Lights, as Document No.8/2005, Book III, dated
03.03.2005, bequeathing the schedule mentioned, in favour of his wife with
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Life interest, and thereafter the lifetime of his wife Mariammal (deceased) to
the 1st Respondent, who is his daughter. As per the said will, the petitioner
herein is appointed as the Executor of the Will. The said Will of
Deenadhayalan is annexed herewith and marked with letter "A" executed by
the deceased Mr. Deenadayalan on 03.03.2005 at Chennai.
(iii) The Petitioner states that the amount of assets which are likely to
come into petitioner hands does not exceed in the aggregate the sum of
Rs.10,00,000/- being value of the Schedule property of the Testator as
shown in the Schedule herein and the net amount of the said assets after
deducting all items which the Petitioner is by law allowed to deduct in the
value of Rs. 10,00,000/-.
(iv). The Petitioner herein hereby undertakes to duly administer the
property and credits of the said Mr.Deenadhayalan (deceased), and in any
way concerning his will and the legacies therein bequeathed so far as the
assets will extend and to make a full and true inventory thereof and the
exhibit the same in this Court, within six months from the date of grant of
probate to the Will annexed in favour of the petitioner herein and also to
render to this Hon'ble Court a true account of the said property and credits
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within one year from the said date.
(v). The Petitioner states that the said Mr.Deenadhayalan is
governed by Hindu Law. The parents of the said Mr. Deenadhayalan
predeceased him. The Petitioner states that his Wife Mariammal (Deceased)
and 1st respondent herein are the only beneficiaries shown under the will.
There is no other next of kin or other persons interested, in the estate of
deceased Mr. Deenadhayalan. No application has been made to any District
Court or delegate or to any other High Court for the probate of the will of the
said deceased or letter of administration with or without the will annexed of
his property and credits.
(vi)The Petitioner states that the respondents are not educated
and were not aware of the legal procedures of approaching this Hon'ble
Court and getting the order of Probate of the Will from this Hon'ble Court.
The petitioner is also not aware of the execution of will and only recently
came across the original will, and he had been then advised to approach this
Hon'ble Court and get the will probated and accordingly on learning about
the procedures, he had filed this Petition without any delay. The non filing of
this Petition in time is not willful or wanton but due to the above said
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reason. Therefore, the Petitioner prays to grant relief as prayed for.
2.The case of the Defendants, as set out in the written
statement, is as follows:-
Written Statement filed by Defendants 2 to 4:-
(i) The alleged will dated 03.03.2005 is created by the plaintiff
and based on the alleged will dated 03.03.2005 the plaintiff herein applied
for probate before this Hon'ble court and the same was numbered as O.P.
No: 579 of 2016. Since the husband of the 2nd defendant and father of
defendants 3 and 4 is one of the legal heir, he was made as 2nd respondent
in the said probate petitioner. The husband of the 2nd defendant filed caveat
and opposed the said probate on the ground that the testator being the father
of 2nd defendant's husband never executed any will and the alleged will
dated 03.03.2005 is created with an intention to usurp the property.
ii). It is submitted that after 2nd defendant's husband filed the
caveat and opposed the probate, the probate petition was converted into
present Testamentary Original Suit in the year 2018. Soon after that 2nd
defendant's husband fell ill and died on 4.9.2019. Hence by order dated
13.3.2020 defendants 2 to 4 were impleaded as legal heirs of 1" defendant.
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iii). It is submitted that father-in-law of 2nd defendant never
executed any will in his lifetime. Further 2nd defendant's father-in-law
sustained paralysis attack on the right side of his body in the beginning of
the year 2005 itself and during the period of the execution of the alleged will
dated 03.03.2005 it was not possible for him to hold a pen and put his
signature. Further the father-in-law of 2nd defendant was mentally upset due
to the said ailment and he was more dependant on the husband of the 2nd
defendant being his only son.
iv).It is submitted that during the lifetime of father-in-law of the
2nd defendant, he never took any decision especially with respect to the
transaction of properties without consulting the husband of the 2 defendant.
Since the husband of the 2nd defendant is his only son, he was more
affectionate towards him and it was for that reason he often expressed his
intention to gift the suit schedule property to the husband the 2nd defendant
and he had no intention to bequeath the property to his daughter being the
wife of the plaintiff herein. It was for that reasons the 2nd defendant's father-
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in-law gave the possession of the suit schedule property to the 2nd
defendant's husband and his family and not to the plaintiff or his wife. The
defendants are in possession of the suit schedule property by maintaining
the same by paying all taxes to the government. Further, the 2nd defendant's
father-in-law had high regards on the 2nd defendant since she is an educated
lady and working as government school teacher. Hence he used to consult
with 2nd defendant also with respect to the transaction of properties. The
2nd defendant's father-in-law had no intention to execute any will and he
was often expressing his intention to execute a settlement deed with respect
to the suit schedule property, once he recovers from paralysis stroke, in
favour of the husband of the 2nd defendant. However the 2nd defendant's
father-in-law died intestate on 13.11.2009 and leaving behind his wife, the
husband of the 2nd defendant being his only son, and his daughter being the
wife of the plaintiff herein. After six years of the demise of the 2nd
defendant's father-in-law, the plaintiffs have applied for probate before this
Hon'ble Court with respect to a forged will dated 03.03.2005 and after
receiving notice in the said probate petition, the husband of the 2nd
defendant herein filed caveat opposing the probate on the ground that the
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alleged will dated 03.03.2005 is forged.
v). It is submitted that 2nd defendant's mother-in-law also died
intestate on 24.6.2016 and after the demise of all elderly members of the
family of the 2nd defendant, the plaintiff has created a fake will as though
the 2nd defendant's father-in-law executed the will during his lifetime and
the probate petition is filed after a period of six years of the demise of the 2
defendant's father-in-law and the same is explicit that the intention of the
plaintiff is to wait for demise of all elderly members of the family and usurp
the property. The plaintiff has swindled the bank deposits of the 2nd
defendant's father-in-law and the gold ornaments of the 2nd defendant's
mother-in-law after their demise. In similar fashion, the plaintiff is now
trying to usurp the suit schedule property also. If the 2nd defendant's father-
in-law had not suffered stroke, he would have executed settlement deed in
favour of his son being the husband of the 2nd defendant. The intention of
the 2nd defendant's father-in-law to gift the suit schedule property to the
family of the defendants is explicit form the fact that the defendants are in
possession and enjoyment of the suit schedule property till date by paying all
government taxes.
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vi). It is submitted that the attesting witness of the alleged Will
are strangers and their address mentioned in the alleged Will is not genuine.
While there are many relatives and friends for the 2nd defendant's father- in-
law the need to get the attestation of some strangers as witness also shows
that the alleged will is fake and the same is created by the plaintiff.
vii). In such circumstances, the present case of the plaintiff
claiming for entire right over the property based on the alleged will dated
03.03.2005 is nothing but evil design of the plaintiff with a malevolent
intention to grab the suit schedule property based on forged will dated
03.03.2005. It is therefore most humbly prayed that this Hon'ble Court be
pleased to dismiss the above Testamentary Original Suit with exemplary cost
and thus render justice.
4. On the pleadings of the parties and hearing the learned
counsel appearing for both sides, the following issues were framed for
determination:-
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i) Whether Mr.Deenadhayalan executed a registered
Will, registered in the office of Joint-II Sub Registrar,
Thousand Lights, as Document No.8/2005, Book III, dated
03.03.2005?
ii) Whether he bequeathed the schedule property in
favour of the first respondent, who was his wife to her life
interest and thereafter to the first respondent who is his
daughter?
iii) Whether the alleged Will dated 03.03.2005 is
created and forged by the plaintiff?
iv)Whether Mr.Deenadhayalan died intestate leaving
behind his wife, husband of the second defendant and his
daughter as his legal heirs?
v)Whether the plaintiff is entitled for the relief of grant
of probate as claimed in the plaint?
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5.On the side of the Plaintiff, PW.1 and PW.2 were examined
and Ex.P1 and Ex.P2 were marked and On the side of the Defendants,
DW.1 was examined and no documents were marked.
6. Heard both sides and perused the material available on
record.
7.The learned counsel for the plaintiff submits that the said
Late Mr.Deenadhayalan had left behind his legal heirs namely his wife and
two children. Mr. Deenadhayalan had executed a Registered Will in the
Office of the Joint II Sub Registrar, Thousand Lights, as Document
No.8/2005, Book III, dated 03.03.2005, bequeathing the schedule
mentioned, in favour of his wife with Life interest, and thereafter the lifetime
of his wife Mariammal (deceased) to the 1st Respondent, who is his
daughter. As per the said will, the petitioner herein is appointed as the
Executor of the Will.
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8.It has been further submitted by the learned counsel for the
plaintiff that the Testator's Wife Mariammal (Deceased) and 1st respondent
herein are the only beneficiaries shown under the will. There is no other next
of kin or other persons interested, in the estate of deceased Mr.
Deenadhayalan. To prove on the side of the plaintiff, PW.1 and PW.2 were
examined and Ex.P1 and Ex.P2 were marked. Thus, the Petitioner prays
this Court to grant relief as prayed for.
9.The learned counsel for the defendants submits that the
father-in-law of 2nd defendant never executed any will in his lifetime.
Further 2nd defendant's father-in-law sustained paralysis attack on the right
side of his body in the beginning of the year 2005 itself and during the
period of the execution of the alleged will dated 03.03.2005 it was not
possible for him to hold a pen and put his signature. Further the father-in-
law of 2nd defendant was mentally upset due to the said ailment and he was
more dependant on the husband of the 2nd defendant being his only son.
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10.It has been further submitted by the learned counsel for the
defendants that the defendants are in possession of the suit schedule
property by maintaining the same by paying all taxes to the government. The
2nd defendant's father-in-law had no intention to execute any will and he
was often expressing his intention to execute a settlement deed with respect
to the suit schedule property, once he recovers from paralysis stroke, in
favour of the husband of the 2nd defendant. However the 2nd defendant's
father-in-law died intestate on 13.11.2009 and leaving behind his wife, the
husband of the 2nd defendant being his only son, and his daughter being the
wife of the plaintiff herein. After six years of the demise of the 2nd
defendant's father-in-law, the plaintiffs have applied for probate before this
Hon'ble Court with respect to a forged will dated 03.03.2005 and after
receiving notice in the said probate petition, the husband of the 2nd
defendant herein filed caveat opposing the probate on the ground that the
alleged will dated 03.03.2005 is forged.
11.The learned counsel for the defendants further submit that
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the 2nd defendant's mother-in-law also died intestate on 24.6.2016 and after
the demise of all elderly members of the family of the 2nd defendant, the
plaintiff has created a fake will as though the 2nd defendant's father-in-law
executed the will during his lifetime and the probate petition is filed after a
period of six years of the demise of the 2 defendant's father-in-law and the
same is explicit that the intention of the plaintiff is to wait for demise of all
elderly members of the family and usurp the property. The plaintiff has
swindled the bank deposits of the 2nd defendant's father-in-law and the gold
ornaments of the 2nd defendant's mother-in-law after their demise. In similar
fashion, the plaintiff is now trying to usurp the suit schedule property also.
12. It has been submitted by the learned counsel for the
defendants that the attesting witness of the alleged Will are strangers and
their address mentioned in the alleged Will is not genuine. While there are
many relatives and friends for the 2nd defendant's father- in-law the need to
get the attestation of some strangers as witness also shows that the alleged
will is fake and the same is created by the plaintiff. Thus, he seeks this Court
to dismiss the suit.
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13.On a perusal of the said Will dated 03.03.2005, it can be
seen that the two attesting witnesses have endorsed their signature in the
said Will. However, the plaintiff has not filed any proof affidavit of the
attesting witnesses during the probate proceeding. Even though P.W.1 and
P.W.2 were examined on the side of the plaintiff, there is no averment with
regard to both attesting witnesses who said to have endorsed their signature
during the execution of the said Will. In the evidence of P.W.1, he did not
say about the Attesting witnesses whether they are alive or died and notices
were served to them informing the probate proceeding. In the cross
examination of P.W.2, he has deposed that he saw only the Testator signing
in the Will and he did not know about the contents of the Will and he has
further deposed that he did not know about the attesting witnesses who said
to have put their signatures in the said Will.
14.Under such circumstances, the plaintiff is at the obligation
of proving the Will in accordance with the provisions of Section 68 of the
Indian Evidence Act. Even though two attesting witnesses are no more, the
plaintiff being the son-in-law of the Testator, is bound to prove the signature
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of the Testator by producing oral and documentary evidence. If the Plaintiff
is unable to produce any one of the witnesses to prove the signature, at least,
he has to examine the person, who can identify and prove the signature of
those attesting witnesses. In this case, the Plaintiff failed to prove the Will,
by examining the person as a witness, who can identify and prove the
signatures of the attesting witnesses. So he miserably failed to take steps to
examine the witnesses. Therefore, the Plaintiff has not proved the Will by
oral and documentary evidence. Accordingly, Issue No.3 is answered
against the plaintiff. Since issue no.3 is answered against the Plaintiff, other
issues does not arise and it need not be considered at this stage. The Plaintiff
is not entitled to Letters of Administration or any other relief.
15. In the result, the Testamentary Original Suit is dismissed.
No Costs.
30.05.2024
Index:Yes/No
Web:Yes/No
Speaking/Non Speaking
lbm
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Witnesses examined on the side of the plaintiff and defendants:-
P.W.1. - M. Govindasamy
P.W.2. - P. Devendran
D.W.1. - V. Maheswari
Exhibits produced on the side of the plaintiff:
S. No. Exhibits Description of Documents Date
1. EX.P1 Original Will executed by Mr. Dheenadayalan 03.03.2005
2. EX.P2 Photocopy of the Aadhaar Card of Devendran. -
Exhibits produced on the side of the defendants:
Nil
30.05.2024
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A.A. NAKKIRAN, J,
Lbm
30.05.2024
https://www.mhc.tn.gov.in/judis
