Madras High Court
N. Jaishankar vs G. Anbarasi on 23 October, 2024
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.10.2024
CORAM:
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
T.O.S. No.20 of 2022
(OP.No.964 of 2015)
N. Jaishankar ...Plaintiff
..Vs..
G. Anbarasi ..Defendant
Prayer:- Original Petition has been filed under Sections 232 and 276 of the
Indian Succession Act XXXIX of 1925 for grant of Letters of Administration
in respect of the last Will and Testament of the deceased D. Natarajan.
Against this petition, a Caveat and supporting affidavit were filed by the
Caveator. As per order of this Court, the Original Petition No.964 of 2015
was converted into Testamentary Original Suit No.20 of 2022.
For Plaintiff : Mr.H. Adaikala Arockiaraj
For Defendant : Mr.Amar D. Pandiya
****
JUDGMENT
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This Testamentary Original Suit has been filed to grant letters of
Administration to the petitioner with the Will annexed to the petition, 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:
(a).The petitioner's father D. Natarajan, was the absolute owner
of the first floor in the premises bearing present Door.No.82, Old. No.14 A,
Thiruvalluvar Pettai Street, Raja Annamalaipuram, Chennai- 600 028,
comprised in O.S.No.371, C.C.No.976, R.S.No.4047 Part as per Patta
4087/27, Patta C.A.No.412/1988-89 in extent 1053 Sq.ft. together with
building and present Door.No.87, previous Door.No.68, Old Door. No.7/44
A, Appu Street, Mylapore, Chennai 600 004, comprised in O.S.No.1570,
1578, C.C.No.1117, R.S.No.2761, in extent 661 Sq.ft. together with building
and passage with a house.
(b).During the life time of the said Testator D. Natarajan, he had
executed a will on 30.04.2007 while in sound and good state of mind thereby
bequeathing the schedule mentioned property to be enjoyed by the petitioner.
The testator of the will D. Natarajan died on 29.03.2010 at his ordinary
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residence at No.Old.No.87, New. No.26, Appu Street, Mylapore, Chennai
600 004. The wife of the testator, namely Samundeeswari predeceased him
and the Petitioner and the respondents herein are the only legal heirs of Late.
D.Natarajan. The writing hereunto annexed now shown to the petitioner and
marked with letter 'A' is the last will and testament of the said D. Natarajan,
and was duly executed by him at Chennai on the 30th day of April 2007 in
the presence of the witnesses whose names appear at the foot thereof.
c). In the said will the Testator D.Natarajan had categorically
stated that he had sufficiently provided to his other children namely the
respondents herein and that therefore he was bequeathing the schedule
mentioned properties in favour of his last son namely the aforesaid
N.Jaishankar. The petitioner has impleaded all the next of kin or other
persons interested as party/respondents. There is no next of kin or other
persons interested, to be impleaded. The 2nd respondent herein has given her
consent and the consent affidavit of 2nd respondent is filed herewith. The
wife and parents of the testator predeceased him.
d). The petitioner ie.N. Jaishanker, who is the last son and who
is one of the legatees of the schedule mentioned property as per the said will
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and the petitioner is entitled for Letters of Administration in terms of the said
will. The amount of assets, which are likely to come into the hands of the
petitioner does not exceed in the aggregate the sum of Rs. 14,00,000/- and
the net amount of the said assets, after deducting all the terms, which the
petitioner is by law allowed to deduct is the value of Rs. 10,000/-The next
value of the assets would be Rs. 13,90,000/-.
e). There is no applications has been made to any District Court
or delegate or to any other High Court for probate of any WILL of the said
deceased or for Letters of Administration with or without the WILL annexed
of his property and credits. There is no executor appointed in the above said
Will and as one of the legatees the petitioner has filed this petition for Letters
of Administration. The petitioner hereby undertakes to duly administer the
property and credits of the said D. Natarajan, the deceased and in any way
concerning his will by paying first his debts and then the legacies therein
bequeathed so far as the assets will extent and to make a full and true
inventory thereof and exhibit the same in this Honourable Court within six
months from the date of grant of Letters of Administrator with the Will
annexed to the petitioner and also to render to this Honourable Court a true
account of the said property and credits within one year from the said date.
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Thus, the Plaintiff seeks to grant of Letter of Administration in favour of the
plaintiff.
3.The written statement filed by the defendant is as follows:
a)The Defendant strictly deny the averments and allegations
made in the Plaint/Petition as false, frivolous, misleading and far from truth,
except those that are specifically admitted herein and put the Plaintiff /
Petitioner strict proof of the same.
b)The property as mentioned in the above suit schedule,
originally belonged to defendant's father in law D. Natarajan, who purchased
through the registered Sale Deed dated 27.4.1967 in Document No: 1062 of
1967 and constructed a house building thereon.
c). The Defendant's father in law D. Natarajan was died intestate
on 29.03.2010, left behind him, his two sons 1) The defendant's husband, 2)
N. Jaishankar and 3) S. Manjula (1 Respondent), as surviving legal heirs.
d). The Defendant's husband N. Gunasekaran, was also died
intestate on 02.11.2009, left behind the defendant as his surviving legal heirs.
During the life time of defendant's deceased father in law D. Natarajan
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expressed his desire to them the said schedule mentioned properties) should
be inherited in equal share among the legal heirs and also the defendant's
deceased husband N. Gunasekaran, also expressed during his life time that
the schedule mentioned property in the Original Petition should be inherited
equally, by the legal heirs of his father late. D. Natarajan.
e). Neither defendant's father in law nor defendant's husband has
executed any Will in respect of the petition schedule properties during their
life time. The Will which has been produced before this Hon'ble Court to the
support of the above case was fictitious and the same was created for the
purpose of the above case and put the Plaintiff strict proof of the same. After
respective demise of defendant's father in law & defendant's husband, the
plaintiff and defendant are jointly enjoying the schedule properties without
any partition. The Defendant respectfully submits that after demise of my
father in law, The Defendant have approached the Plaintiff above named for
amicable partition over the schedule properties. The Plaintiff informed
defendant that the schedule property/ies will be divided into three shares
soon and The Defendant felt the same is justifiable and hence the defendant
has not filed any claim claiming partition till now.
f). After demise of defendant's husband on 02.11.2009. the
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defendant has approached the Plaintiff and requested for amicable partition,
but the Plaintiff protracted for amicable partition by telling lame excuses on
the other hand the Plaintiff continued to enjoy the entire rental income, even
after demise of defendant's husband. After respective demise of defendant's
father in law & defendant's husband, the Plaintiff above named have not
shown and disclosed about the alleged Will either to defendant or any of her
relatives. The alleged Will dated 30.04.2007 is forged & fabricated by the
Plaintiff, with an ulterior motive to grab the entire property/ies without
allotting the Defendant's due share. The above Will was drafted and would
have been prepared by the Plaintiff or upon his instructions and also
registered without free will or consent of plaintiff's father in law, therefore
the above Will cannot be acted upon. Hence, the Testamentary Original Suit
is not maintainable either in law nor on facts and the same is liable to be
dismissed in limini with exemplary cost.
5. 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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(1) “Whether the last Will dated 30.04.2007 executed by the
Testator, D. Natarajan, is genuine and executed without any
coercion?”
(2) “To what relief the parties are entitled to?”
6.On the side of the Plaintiff, Ex.P1 to Ex.P8 were marked and
PW.1 and P.W.2 were examined. On the side of the Defendant, no
Documents were marked and DW.1 was examined.
7.This Court heard the submissions of the learned counsel on
either side and perused the material available on record.
8.The learned counsel for the plaintiff would submit that the
first respondent gave her consent affidavit for grant of Letters of
Administration of the Will. To prove the Will, the plaintiff was examined as
PW1 and eight documents were marked on his side as Ex.P1 to P8. The
original Will dated 30.04.2007 has been marked as Ex.P1. In Ex.P1 namely
the Will dated 30.04.2007, two persons namely Nagoor and Niyamadullah,
signed the Will as witnesses.
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9.It has been further submitted by the learned counsel for the
plaintiff that as both the attesting witnesses were not available and their legal
heirs also not able to be found, a third party, namely V.Kuppusamy, who is
familiar with the testator's signature was examined as P.W2. Further, PW2
also identified the signature of D.Natarajan in the Will dated 30.04.2007 at
the time of filing his proof affidavit.
10. The learned counsel for the plaintiff would further submit
that both attesting witnesses are died. As the legal heirs of both the attesting
witnesses were not able to be found and P.W.2 is familiar with the signature
of the testator D. Natarajan, he is giving evidence to identify the signature of
D.Natarajan. Hence, the plaintiff has proved the Will through P.W.2, who
identified the signature of the testator. In support of his argument, he is also
relying on the citations reported in “Air 2019 Punjab and Haryana 9 and Air
2015 Kerala 250, regarding the examination of a third party, in absence of
the attesting witnesses. Hence, he seeks the relief as prayed therein.
11.The learned counsel for the defendant would submit that the
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plaintiff and defendant are jointly enjoying the schedule properties without
any partition. After respective demise of defendant's father in law &
defendant's husband, the Plaintiff has not shown and disclosed about the
alleged Will either to defendant or any of her relatives. The alleged Will
dated 30.04.2007 is forged & fabricated by the Plaintiff, with an ulterior
motive to grab the entire property/ies without allotting the Defendant's due
share. Therefore the said Will cannot be acted upon. Hence, the
Testamentary Original Suit is not maintainable and the same is liable to be
dismissed with exemplary cost.
12. On a perusal of the records, it is seen in the plaint and proof
affidavit and also cross examination of P.W1, that the plaintiff has not
whispered anything about the attesting witnesses who have signed in the
Ex.P1-Will dated 30.04.2007 namely Nagoor and Niamathullah either they
are alive or not. Further, in the cross examination, while the P.W.1 has stated
as follows:
Q.No.24: Do you know the name of attesting Witnesses of Ex.P1 Will?
A: Kuppusamy and Shakthivel,
Q.Nos.63 and 64, he has averred contra evidence as follows:
Q.No.63: Who has attested the Will?
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A: Nagoor and Niamathullah
Q.No.64: Do you know the above said attesting witnesses?
A: I do now know.
Initially, P.W.1 has stated the names of attesting witnesses as Kuppusamy
and Shakthivel and thereafter, he has stated the names of the attesting
witnesses as Nagoor and Niamathullah. As per Q. No.64, if he did know the
attesting Witnesses, he would have taken steps to bring any one of the
Attesting Witnesses or one of their legal heirs in the Witness Box to prove
the signature of the Testator. In view of the non availability of both the
attesting witnesses and their legal heirs, 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."
In view of the above, the person who knows the signature of the Attesting
Witnesses ought to have brought to the Witness Box to prove the Will.
However, the plaintiff has produced P.W2 who knows the signature of the
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Testator not the signature of the Attesting Witnesses.
13. Further, during the cross examination of P.W.2, to the question
No.8, “How do you came to know about the deaths of the attesting witnesses
of the Will? he has stated as it was came to his knowledge through his
Advocate. Whereas, for the next question No.9, “Do you have personally
verified the deaths of the attesting witnesses of the Will? He has stated contra
evidence that he personally verified the same and found correct.
14. Further, to the question No.15, “Do you know the names of
persons you enquire about the death of two attesting witnesses and do you
know the relationship of the persons with attesting witnesses? He has
answered that he did not know the names of the persons and also did not
know the relationship.
15.In view of the contra evidence averred by the P.W.1 and
P.W.2, it creates suspicious circumstances in the execution of the Will dated
30.04.2007. Further, the plaintiff has not taken any steps to Attesting
Witnesses in order to know either they are died or alive and he has not
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produced any other documents to prove the signature of the Testator for
comparison. The Judgments relied upon the Plaintiff is not related to the
present case. The plaintiff has failed to prove the Will dated 30.04.2007 by
producing oral and documentary evidence in the manner known to law.
16.In the result, the Testamentary Original Suit is dismissed. No
Costs.
23.10.2024
Index:Yes/No
Web:Yes/No
Speaking/Non Speaking
1. List of Witnesses examined on the side of the Plaintiff:-
1. PW.1 – Mr. N. Jaishankar
2. PW.2 - Mr. V. Kuppusamy
2. List of Witnesses examined on the side of the Defendant:-
D.W.1 - Mrs. G. Anbarasi
4. List of Exhibits marked on the side of the Plaintiff:-
1. Ex.P1 is the original Will dated 30.04.2007
2. Ex.P2 is the death certificate of N. Samundeeswari
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3. Ex.P3 is he consent affidavit of S. Manjula
4.Ex.P4 is the the affidavit of assets of N.Jainsankar
5.Ex.P5 is the Paper Publication dated 11.11.2017
6.Ex.P6 is the online print out copy of Death Certificate of
D.Natarajan (65 B Certificate is submitted)
7.Ex.P7 is the online print out copy of Death Certificate of N.
Gunasekaran (65 B Certificate is submitted)
8.Ex.P8 is the certified copy of Legal heirship certificate of D.
Natarajan
5. List of Exhibits marked on the side of the Defendant:-
No Exhibits are marked.
23.10.2024
A.A.NAKKIRAN, J.
Lbm
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Pre-Delivery Judgement in
23.10.2024
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