Madras High Court
Smt. Hema Gandhimathi vs Mrs.M.Devika on 13 November, 2024
T.O.S.No.31 of 2015 and C.S. No.46 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.11.2024
CORAM
THE HONOURABLE Mr. JUSTICE A.A. NAKKIRAN
C.S.No.46 of 2017
and T.O.S.No.31 of 2019
1.Smt. Hema Gandhimathi,
2.A.Esai Selvam ...Plaintiffs
in C.S and the defendants in TOS)
..Vs..
1.Mrs.M.Devika,
2.Master M. Vignesh
3. M.Yukesh Venkataramanan
4. Ms. M.Sharmila ...Defendants
in C.S and the Defendants 1 & 2 in
CS are the plaintiffs in TOS)
C.S.No.46 of 2017:
This Civil Suit filed under Order 7 Rule 1 of the Code of Civil
Procedure read with Order IV Rule 1 of the Original Side Rules praying,
a) for division of the suit property into 3 equal shares
by metes and bounds and allot one such share each to the
plaintiffs.
b) direct to appoint an advocate commissioner to divide
the schedule mentioned property suggesting the modes of
division and file a report with plans, drawings and suggest to
allot 1/3rd share each to the plaintiffs and put the plaintiffs in
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1/22
T.O.S.No.31 of 2015 and C.S. No.46 of 2017
separate possession through due process of law,
c) for a permanent injunction restraining the 1st
defendant, her men, servants, agents, or any other person or
persons claiming through her from encumbering, alienating or
creating charge, lis, mortgage over the plaint schedule
mentioned property,
c) grant such further or other reliefs and
d) for directing the defendants to pay the costs of this
suit and
T.O.S.No.31 of 2019:
This Petition has been filed under Sections 232, 255 and 276 of the
Indian Succession Act XXXIX of 1925 for grant of Letters of Administration.
Against this petition, a Caveat was filed by the Caveator. As per order of the
Learned Master, dated 18.07.2019, the Original Petition No.214 of 2019 has
been converted into Testamentary Original Suit.
For Plaintiffs : Mr. T.K. Kulasekaran
For Defendants : Mr.M. Kamala Kannan
: Mrs. K. Jamuna for D4 in CS
*****
(Vice Versa in both cases)
COMMON JUDGMENT
The Civil Suit and the Testamentary Original Suit have been filed
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T.O.S.No.31 of 2015 and C.S. No.46 of 2017
seeking for the reliefs as prayed therein.
2. The plaintiffs in C.S are the defendants 1 and 2 in TOS and the
defendants 1 and 2 in CS are the Plaintiffs in TOS. For the sake of
convenience, the parties are referred to as per the rank stated in the CS.
3. Since both the cases are interlinked each other, in the plaint filed in
CS who are the defendants in TOS have reiterated the averments made in the
Written Statement filed in TOS. In the Written Statement filed in CS, the
defendants who are the plaintiffs in TOS have reiterated the averments in the
Plaint in TOS.
4.The case of the Plaintiff, as set out, in the plaint in CS is as follows:
a).The 1st and 2nd plaintiffs are the daughter and the son of late
C. Adikesavan. C.Adikesavan married Smt.Saradha and out of the wedlock 3
children were born to them namely the plaintiffs and one A.Mathivathanan
since deceased. The said C.Adikesavan retired as post master. During his
lifetime he purchased from and out of his own funds, the schedule mentioned
property for valuable consideration by way of a registered Sale Deed dated
04.08.1966, from the Vendors in title and since then he had been in absolute
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T.O.S.No.31 of 2015 and C.S. No.46 of 2017
possession and enjoyment of the same till his death on 05.04.2009. His wife
Smt.Saradha pre-deceased him on 20.8.2005.
b). After having undergone surgery on 21.3.2009, C.Adikesavan
passed away at the age of 76 on 5.4.2009 leaving behind the plaintiffs and the
1 defendant's husband since now deceased, the father of the defendants 2 to 4.
He died intestate. Thereafter, his 2nd son by name A. Mathivathanan, died on
27.3.2012 leaving behind the 1st defendant as wife and 2 to 4 defendants as
children.
c) The said Mathivathanan, initially married one Malliga on
15.3.1990. Out of the wedlock, 3rd and 4th defendants were born to them. Due
to misunderstanding between them, the said A.Mathivathanan filed a divorce
petition on the ground of desertion in O.P.No.514 of 1999 whereby a decree of
divorce was granted by order dated 31.12.2002. Thus, the decree of divorce
became final. Thereupon, the said A Mathivathanan married the 1st defendant
in the year 2003. Out of the said wedlock, the 2nd defendant was born.
Inasmuch as the 3rd defendant was born through the 1st wife, he was left in
the care and custody of his paternal uncle, the 2nd plaintiff herein. Till date,
the 3rd defendant, from the date of his birth is being maintained by the 2nd
plaintiff. The 4th defendant as the daughter of the said A.Mathivathanan is
also entitled to a share in the property, who has been living with her mother.
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T.O.S.No.31 of 2015 and C.S. No.46 of 2017
d) After the death of the said C.Adikesavan, efforts were made to effect
partition of the schedule mentioned property by metes and bounds amongst the
legal heirs. But to the shock and surprise of the plaintiffs, the 1st defendant
who is the 2nd wife of the deceased A.Mathivathanan apprised the plaintiffs
that the said C.Adikesavan, the father of the plaintiffs and of A.Mathivathanan
since deceased has left behind a Will thereby bequeathing substantial portion
of the schedule mentioned property in favour of the said A.Mathivathanan and
the 1st and 2nd defendants. Nevertheless, the Will alleged to have been
executed by the said C.Adikesavan was not disclosed for the best reasons
known to her. The Will must have been a bogus one, the reason being the said
alleged Will is dated 13.3.2009, the date on which the said C.Adikesavan was
admitted to Apollo Hospital, Chennai in Critical Care Unit (CCU) and was on
tube feeding. On that date, no one was allowed to visit him, for the patient was
in a serious condition. Hence, he was not in a healthy condition either to speak
or to sign any paper. As his health condition being serious, he was being
monitored by the Doctors and the Nurses round the clock and further, as
C.Adikesavan was a retired post Master and he was well qualified, it was his
practice to sign any papers only in English whereas the alleged Will has been
signed in Tamil. There is a suspicious circumstances hovering around with
regard to the execution of the alleged Will. On a discreet enquiry made, the
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T.O.S.No.31 of 2015 and C.S. No.46 of 2017
plaintiffs came to understand that the said alleged Will has been prepared by
forging the signature of C.Adikesavan by the 1st defendant. Further, for
reasons obvious, the said alleged Will has not been probated even after, expiry
of 8 years of its alleged execution. Therefore, no legal sanctity can be attached
to the said alleged Will. Hence, the plaintiffs as the legal heirs of the said
C.Adikesavan since deceased are entitled to 1/3rd share each of the schedule
mentioned property. The schedule mentioned property has to be divided into 3
equal shares by metes and bounds and allot one such share each to the
plaintiffs and the remaining one share has to be allotted amongst the
defendants 1 to 4. Hence, the suit is filed.
5.Written statement filed by the defendants 1 and 2 in CS which are
averments in the plaint of TOS is as follows:
a).The Testator C.Adhikesavan executed the Will dated 13.03.2009 in
favour of the petitioner's husband A.Mathivathanan except the vacant land
measuring 37 1/2 X 24 (900) Sq.ft., in favour of the 2nd respondent and his
heirs. Hence, the 1st petitioner's husband late A.Mathivathanan and the heirs of
late A.Mathivathanan are the only beneficiary and universal legatee under the
Will dated 13.03.2009. The Testator clearly stated in the Will that the younger
son A.Esai Selvam, the second respondent is the higher grade Officer in the
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T.O.S.No.31 of 2015 and C.S. No.46 of 2017
Government and his wife also in a Government Service and they are having
good income and also they are having one house property at Chetput and the
Testator has spent huge amount to construct that house property. Hence the
Testator bequeathed small portion and the property to his younger son. And
the Testator has not appointed any Executor in the said Will.
b) The amount of assets which are likely to come into the
petitioners hands do not exceed in the aggregation a sum of Rs.75,00,000/-
and the net amount of the said assets after deducting all the item which the
petitioner is by law allowed to deduct in any of the value of Rs. 75,00,000/-.
All the next of kin or other persons/ interested as parties /respondents have
been impleaded. There are no other next of kin or other persons interested to
be impleaded.
c).The Testator C.Adhikesavan died on 05.04.2009. He
bequeathed the property in favour of his son A.Mathivathanan but the said
A.Mathivathanan has not taken any steps to probate the Will during his life
time. The said A.Mathivathanan, the husband of the petitioner died on
27.03.2012 due to Blood cancer. After his death the petitioner was advised to
probate the Will. Hence there is a delay and the delay is not willful nor wanton
but was due to the above said circumstances. No application has been made to
any District or delegates or to any other High Court for Probate of any Will of
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T.O.S.No.31 of 2015 and C.S. No.46 of 2017
the said deceased or Letter of Administration with or without the Will annexed
to his property and credits.
d). The petitioners undertakes to duly administer the properties
and credits of the said C.Adhikesavan (Deceased) and in any way concerning
his Will by paying first his and the legacies herein 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 Letters of Administration with will
annexed the date of grant of Probate to the Petitioner and also to render to this
Court a true and correct account of the said property and credits within one
year from the said date. Hence, TOS is filed.
6.Written Statement filed the 3rd defendant in CS is as follows:
(a).The suit schedule property belongs to grandfather of the 3rd
defendant. The 3rd defendant's father A. Mathivathanan was originally
married to Malliga and in the said wedlock, the 3rd and 4th defendants were
born. The 3rd defendant's father A. Mathivathanan filed a petition for divorce
against Malliga in the Family Court. In the said petition Divorce was granted
in the year 2002 in O.P.No.514 of 1999. After the Divorce, third defendant's
father married the 1st defendant to whom the 2nd defendant was born.
b).Being the factual matrix, as the legal heir of late A.
Mathivathanan, the 3rd defendant is entitled for a share in the property left
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T.O.S.No.31 of 2015 and C.S. No.46 of 2017
behind by his grandfather by name Adikesavan. The 3rd defendant is entitled
for 1/4 share in his father's 1/3rd share that may be allotted to him. With
respect to the other averments traversed in the plaint. this defendant has no
objection.
7.Written Statement filed the 4th defendant in CS is as follows:
b)It is true that the suit schedule property belongs to the
grandfather of fourth defendant, Late C. Audikesavan. Plaintiffs and 4th
defendant's father A.Mathivathanan are the legal heirs of Late C.Audikesavan
and the fourth defendant's grandfather, Late.C.Adikesavan, died on
05.04.2009. The defendants 3 & 4 are the children to Late. A.Mathivathanan,
born through Malliga (1st Wife). Being the fact, the fourth defendant is
entitled for a share in the property left by her grandfather Late Audikesavan.
The fourth defendant is not only entitled for a share in her father's property,
mentioned in the suit, but also entitled for a share in any other properties left
out by her father Late A Mathivathanan and also in the ancestral properties.
8.Based on the above said pleadings in both CS and TOS the
following issues were framed separately:
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T.O.S.No.31 of 2015 and C.S. No.46 of 2017
CS. No.46 of 2017:
"(i) Whether the plaintiffs and other defendants are
entiled for division of the suit property into 3 equal shares by
metes and bounds and by alloting one such share each to the
plaintiffs?
(ii) Whether the plaintiffs are entitled for 2/3d share in
the suit property left behind by their father C.Adikesavan?
iii) Whether the permanent injunction restraining the
first defendant her men, servants, agents or any other person or
persons claiming through her from encumbering or alienating
or creating charge, lis mortgage orver the plaint schedule
mentioned property?
iv) Whether the plaintiffs father C.Adikesavan died
intestate?
v)Whether the plaintiffs father C.Adikesavan has left
behind any Will dated 13.03.2009 as claimed by the first
defendant? and Whether it is a fabricated document?
vi)Are the defendants 1 and 2 entitled to claim major
share in the suit property as per the terms of the Will dated
13.03.2009?
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T.O.S.No.31 of 2015 and C.S. No.46 of 2017
vii) To what other reliefs the parties are entitled to?
TOS. No.31 of 2019:
(i) Whether late C.Adikesavan, father of the defendants 1 & 2 has
left behind the Will dated 13.03.2009 as claimed by the plaintiffs? and
Whether it is a fabricated and forged document?
(ii) Whether late C.Adikesavan was capable of executing
the Will dated 13.03.2009, when he was admitted in a critical
care unit (CCU) at Apollo Hospital, Chennai fro 13.03.2009 to
04.04.2009?
iii) Whether the plaintiffs are entitled to claim major
share in the suit property as per the terms of the Will dated
13.03.2009?
iv) Whether the plaintiffs are entitled to claim for
probating the Will which were not probated for a period of 8
long years?
v) To what other reliefs the parties are entitled to?
9.On the side of the Plaintiff, Ex.P1 to Ex.P12 were marked and
PW.1 and P.W.2 were examined. On the side of the Defendants, Ex.D1 to
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T.O.S.No.31 of 2015 and C.S. No.46 of 2017
Ex.D7 were marked and DW.1 was examined.
10. Heard both sides and perused the material available on
record.
Issue Nos.5 in CS and Issue No.1,2 and 4 in TOS:
11.The learned counsel for the plaintiffs submitted that
C.Adikesavan has purchased the suit property by way of registered Sale Deed
dated 04.08.1966 out of his own income. It is the absolute property of
C.Adikesavan. He was in absolute possession and enjoyment till his death.
12.It has been further submitted by the learned counsel for the
plaintiffs that C.Adikesavan was admitted to Hospital on 13.03.2009 due to
severe illness under care of critical care unit and started on tube feeding. He
was in the hospital till 04.04.2009. He passed away on 05.04.2009 intestate,
leaving behind the plaintiffs and their brother A.Mathivathanan. His wife
Smt.Saradha pre-deceased him on 23.08.2005. D3 & D4 who are the children
of A.Mathivathanan born through the 1st wife who was legally divorced.
They are sailing along with the plaintiffs. D1 is the 2nd legally wedded wife
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T.O.S.No.31 of 2015 and C.S. No.46 of 2017
of A. Mathivathanan who died on 27.03.2012. D2 born to them.
13. The learned counsel for the plaintiffs further submitted that
C.Adikesavan was admitted on 13.3.2009 in a serious condition under critical
care unit on which date the Will dated 13.3.2009 was executed by the
Testator. Hence, there is a suspicious circumstances hovering around with
regard to the execution of the alleged Will, because C.Adikesavan was not in
a position to execute the Will while he was admitted in CCU of Apollo
Hospital. Therefore, the alleged Will is a forged document.
14.It has been further submitted by the learned counsel for the
plaintiffs that O.P. was filed only after institution of the above partition suit
for grant of Letters of Administration. Further, the Will has not been probated
even after expiry of 8 years of its alleged execution. While DW1 is the
propounder of the Will, she has not stated proper reasons for not taking steps
to probate the Will for over a period of 8 years even after his husband died on
27.03.2012. The more delay creates suspicion to be fabricated one and not
genuine. Hence, he seeks to dismiss the TOS and the relief as prayed in CS.
15. The learned counsel for the defendants submitted that the
Testator C.Adhikesavan died on 05.04.2009. He bequeathed the property in
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T.O.S.No.31 of 2015 and C.S. No.46 of 2017
favour of his son A.Mathivathanan. Mathivathanan-pro-pounder of the
alleged Will is the husband of 1st defendant. As the said Mathivathanan has
not taken any steps to probate the Will during his life time and died on
27.03.2012. After his death, the DW1 was advised to probate the Will.
Thereafter, DW1 filed the O.P. that was converted into T.O.S. seeking order
of Letters of Administration in the capacity of pro-pounder. Hence there is a
delay and the delay is not willful nor wanton but was due to the above said
circumstances.
16.The learned counsel for the defendants would submit that the
Will executed by the Testator has been proved by examining D.W2 who
drafted the said Will and D.W3 who is one of the attesting witnesses in the
Will as well as marking the Will-Ex.D4 executed by the Testator. Hence, he
seeks to dismiss the Civil Suit and the relief as prayed in TOS.
17. On perusal of the records, it is seen that the suit property
belonged to one Late C.Adikesavan who has purchased the suit property out of
his own source of income by way of Registered Sale Deed dated 04.08.1966
vide Ex.P4 and Ex.D5. C.Adikesavan who died on 05.04.2009 vide Ex.P7 and
Ex.D2, had 3 children namely the plaintiffs, and one A.Mathivathanan who
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T.O.S.No.31 of 2015 and C.S. No.46 of 2017
died on 27.03.2012. His wife predeceased on 20.08.2005 vide Ex.P5 and
Ex.D1. While being so, the Will dated 13.03.2009 is alleged to have been
executed by C.Adikesavan, in favour of his son ie. A. Mathivathanan
bequeathing the suit property leaving other two children which is unregistered
one.
18.On perusal of the DW1 evidence, she has fairly admitted in
her cross examination that C.Adikesavan (Testator), her father-in-law was
admitted in CCU on 13.03.2009 and she did not see while C.Adikesavan was
signing the Will. Thus DW1 is unaware of the Will being executed by the
Testator and she has not whispered anything about from whom she got the
said Will.
19.Further, even though DW2-namely,Mr.Jagathish, deposed in
his proof affidavit that on 02.03.2009, he met C.Adikesavan at Dr.H.V. Hande
Hospital at evening 4.30PM, along with Karunakaran, one of the attesting
witness. However, DW3-namely,Karunakaran, has denied the same in his
cross examination in question No.31 and answered he visited C.Adikesavan
only in Appollo Hospital. Admittedly, either in the proof affidavit or evidence
of DW1 to DW3, they have not whispered anything about the sound and
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T.O.S.No.31 of 2015 and C.S. No.46 of 2017
disposing state of mind of the Testator. Further, there is no medical record to
prove the stable of mind and health condition of the Testator. It is also
admitted by DW2 in his proof affidavit that it could not be possible to bring
the Testator before the Registrar Office and he obtained Notary attestation
from one R.Pandian, Advocate. Hence, it is clear that the Testator was not able
to stable mind and health condition. Further, on scrutinisation of the Will, this
Court finds that the Will is unregistered one and there is no any Attestation of
Notary Advocate in the Will. In the Cross of PW1, he deposed that the
Testator admitted at Appollo Hospital at 7.00pm on 13.03.2009. While the
said Will was alleged to have signed on the same date in the same Hospital,
D.W2 and DW3 have not whispered anything about what time the Testator
and Attesting Witnesses signed in the said Will. Furthermore, DW3 being one
of the attesting witness deposed that he did not know what the contents were
in the Will. At the same time, DW2 and DW3 never deposed that first who
signed in the Will and thereafter, who affixed the signature in the Will.
20. While the unregistered Will was executed on 13.03.2009,
Ex.P9-Discharge Summary of the Testator issued by Appollo Hospital, reveals
that the Testator underwent treatment in CCU from 13.03.2009 to 04.04.2009.
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T.O.S.No.31 of 2015 and C.S. No.46 of 2017
Having considered his critical health condition, he was discharged on
04.04.2009 from the Hospital and passed away on 05.04.2009 next day from
the discharge of hospital. It shows that Late C.Adikesavan was not capable of
executing the Will dated 13.03.2009, when he was admitted in CCU at Apollo
Hospital, Chennai from 13.03.2009 to 04.04.2009. Accordingly Issue No.2 in
TOS is answered.
21. Under such circumstances, P.W1 has averred that Late.
C.Adikesavan will be signing in English usually, but his signature in the said
Will is in Tamil. However, D.W1 has not produced any document to prove
that the Testator would also sign in Tamil. At the same time, they have not
produced any oral and documentary evidence during the execution of Will that
the Testator was in sound and disposing state of mind. Furthermore, the Will
was executed in the year 2009 and the present O.P. was filed in the year 2019
after filing CS in the year 2017. It seems that the OP has been filed
afterthoughts. Further, the Defendants 1 and 2 have not explained the proper
reasons for filing of OP after filing CS. In the suspicious circumstances
revolves around the Will, the unregistered Will dated 13.03.2009 cannot be
considered as True and Genuine. Accordingly, issue Nos.1 and 4 in TOS and
Issue No.5 in CS are answered.
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T.O.S.No.31 of 2015 and C.S. No.46 of 2017
22. The Will dated 13.03.2009 is alleged to have been executed
by C.Adikesavan has not been proved by the defendants in the manner known
to law, the defendants 1 and 2 are not entitled to claim major shares in the suit
property as per the terms of the said Will and not entitled to any other relief
therein. Accordingly, issue No.4 and 6 in CS and Issue No.3 and 5 in TOS are
answered.
23. On perusal of Ex.P4, the suit property is self acquired by late
C.Adikesavan and registered by virtue of Ex.P4-Sale Deed dated 04.08.1966
in his name. On perusal of Ex.P1 and Ex.P2, the Plaintiffs and late
Mathivathanan are only legal heirs of Late. C.Adikesavan and D1 to D4 are
legal heirs of Mathivathanan since deceased. The plaintiffs 1 and 2 are
entitled to 1/3rd share each and the defendants 1 to 4 are jointly entitled to 1/3rd
in the suit property. As the plaintiffs and defendants are jointly entitled to the
aforesaid extent, Issue No.3 in CS does not arise. Accordingly, Issue Nos.1, 2,
3 and 7 in CS are answered.
24. In the result, the Preliminary Decree is passed in C.S. No.46
to the aforesaid extent and as a sequel, the Testamentary Original Suit is
dismissed. No costs.
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T.O.S.No.31 of 2015 and C.S. No.46 of 2017
13.11.2024
Index : Yes/No
Speaking Order : Yes/No
Neutral Citation Case : Yes/No
Lbm
List of witnesses examined in TOS and CS:
PW1 - Mr.A.Isai Selvam
DW1 - Mrs.M.Devika
DW2 - Mr.Jagatheesh
DW3 -Mr.C.Karunagaran
List of documents marked on the side of the plaintiff:
Ex.P1 is the True copy of the legal heir certificate of C.Adikesavan, dated
30.06.2009.
Ex.P2 is the True copy of the legal heir certificate of A.Madhivadhanan, dated
01.03.2013.
Ex.P3 is the Certified xerox copy of the order dated 10.02.2015 in ?
.?.No.1916/2013 on the file of XVII Metropolitan Magistrate.
Ex.P4 is the Downloaded certified copy of the sale deed dated 04.08.1966.
Ex.P5 is the Downloaded Death Certificate of Saradha.M, date of issue
20.07.2023.
Ex.P6 is the True copy of the legal heirship certificate of M.Saradha dated
29.09.2005.
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T.O.S.No.31 of 2015 and C.S. No.46 of 2017
Ex.P7 is the Downloaded Death Certificate of C.Adhikesavan, date of issue
20.07.2023
Ex.P8 is the Downloaded Death Certificate of Mathivathanan.A, date of issue
20.07.2023.
Ex.P9 is the Copy of the Discharge summary issued by Apollo Hospital dated
01.04.2009.
Ex.P10 is the Printout of the water tax receipt dated 22.03.2016
(affidavit/certificate under Sec.65 B of 1.E.Act is filed in common).
Ex.P11 is the Printout of the Property Tax receipt dated 26.03.2016
(affidavit/certificate under Sec.65 B of 1.E.Act is filed in common).
Ex.P12 is the Printout of the guideline value dated
23.12.2016.(affidavit/certificate under Sec.65 B of 1.E.Act is filed in
common)
List of documents marked on the side of the defendants:
Ex.D.1 is the Computer generated copy of the Death Certificate of
Mrs.Saradha, date of issue 28.08.2017.
Ex.D.2 is the Computer generated copy of the Death Certificate of
C.Adhikesavan, date of issue 28.08.2017.
Ex.D.3 is the Computer generated copy of the Death Certificate of
Mathivathanan.A, date of issue 28.08.2017.
Ex.D.4 is the Original Will dated 13.03.2009 (subject to objection).
Ex.D.5 is the Copy of the sale deed dated 04.08.1966.
Ex.D.6 is the Copy of the Patta dated 08.07.1974.
Ex.D7 is the Computer generated Death Certificate of T.Perumal. Date of
issue 10.12.2020.
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T.O.S.No.31 of 2015 and C.S. No.46 of 2017
13.11.2024
A.A. NAKKIRAN, J,
Lbm
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T.O.S.No.31 of 2015 and C.S. No.46 of 2017
Pre-Delivery Judgments in
13.11.2024
https://www.mhc.tn.gov.in/judis
