Madras High Court
R. Saravanan vs P.Shanthi on 25 October, 2024
T.O.S.No.18 of 2011 and C.S. No.333 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.10.2024
CORAM
THE HONOURABLE Mr. JUSTICE A.A. NAKKIRAN
T.O.S.No.18 of 2011
and
C.S.No.333 of 2013
T.O.S.No.18 of 2011:
R. Saravanan ...Plaintiff
Vs
1.P.Shanthi
2.C. Jayanthi
3.H. Sumathi ...Defendants
C.S.No.333 of 2013:
1.P.Shanthi
2.C. Jayanthi
3.H. Sumathi
...Plaintiffs
..Vs..
1.R. Rajasekar,
2.R. Saravanan ...Defendants
T.O.S.No.18 of 2011:
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 this
Court, the Original Petition No.299 of 2010 has been converted into
Testamentary Original Suit.
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
C.S.No.333 of 2013:
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 granting preliminary decree of partition of the
property more fully described in the scheduled to this plaint
by metes and bounds into 5 equal shares and allotment of
1/5th share thereof to the each of the plaintiffs 1 to 3 herein.
b) for granting permanent injunction restraining the
defendants herein, his men, agents, servants or any one
claiming through him from letting out, mortgaging, selling or
in any other manner alienating the suit property.
c) for directing the defendants to pay a sum of
Rs.50,000/- each per month as mesne profits derived by them
from the suit properties from the date of plaint till date of
partition;
d) for directing the defendants to pay the costs of this
suit and
e)To pass such further or other orders as this Court
may deem fit and proper in the circumstances of the case.
For Plaintiffs : Mr. C. Umashankar
For M/s. Selvaraj
in T.O.S.No.18 of 2011
Mr.V. Kannan
in C.S.No.333 of 2013
For Defendants : Mr.V. Kannan
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
Assisted by Mr. K. Balaji
in T.O.S.No.18 of 2011
Mr. C. Umashankar
For M/s. Selvaraj
in C.S.No.333 of 2013
*****
COMMON JUDGMENT
The Testamentary Original Suit and Civil Suit have been filed seeking
for the reliefs as prayed therein.
2. The plaintiff in TOS is the 1st defendant in C.S and the plaintiffs in
C.S are the defendants in TOS. The defendants in TOS are the Plaintiffs in
C.S and the Defendant in C.S is the Plaintiff is TOS. For the sake of
convenience, the parties are referred to as per the rank stated in the TOS.
3.The case of the Plaintiff, as set out, in the plaint in TOS is as follows:
Mrs. R. Vatsala Devi wife of late P.K. Radhakrishnan died on
24.05.2002 who has executed the Last Will and Testament at Chennai on
05.06.2001 in the presence of the witnesses whose names appear at the foot
thereof. The will was duly registered in the office of the Sub Registrar,
Royapuram, on 5th July 2001, in Book III, Vol. 57 as Doc.No. 71 of 2001, in
pages 3 to 5. The petitioner, R.Saravanan and he is one of the beneficiaries
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
under the will. However, no executor was appointed in the will.
b)The following persons are beneficiaries under the will. The R.
Saravanan and R. Rajasekar who are sons of Mr. P.K. Radhakrishnan. The
testator was owned and possessed of two immovable properties. One property
was situated along Tiruvetriyur High Road and this was bequeathed to the first
respondent R. Rajasekar. R. Rajasekar even without probating the will, had
sold the property bequeathed to him. Another property that is shown in the
affidavit of assets was bequeathed to this petitioner absolutely. As the other
beneficiary has no further interest in the will and as the petitioner alone has to
receive the property bequeathed to him under the will, the petitioner seeks to
probate this will.
c).The original Will was left with the first respondent as he is the
elder brother of the petitioner. The first respondent handed over the original
will only in the month of September 2009 to the petitioner to file this
proceedings and therefore there is delay in filing this petition. Even after due
and diligent search, the attesting witnesses are not available in their residences
and their whereabouts are not known. Hence the third party affidavit is filed
herein.
d). The deceased R. Vatsala Devi on her death left the following legal
heirs. 1. R. Saravanan, Son (Petitioner), 2. R. Rajasekar, Son (first
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
respondent),3. Mrs. P. Shanthi, daughter (2nd respondent),4. Mrs. C. Jayanthi
daughter (3rd respondent), 5. Mrs. H. Sumathi, daughter (4th respondent) and
the deceased has not left any other legal heirs. The husband of the deceased
predeceased. The amount of assets which are likely to come into the
petitioner's hands does not exceed in the aggregate the sum of Rs.3 lakhs
(Rupees three lakhs) and the net amount of the said assets, after deducting all
items which the petitioner is by law allowed to deduct is of the value of Rs.3
lakhs (Rupees three lakhs). There are no other next of kin or other Interested
as party/respondents.
e)That the Petitioner hereby undertakes to duly administer the
property and credits of the said late Mrs. Vatsala Devi, deceased, in any way
concerning her Will by paying first 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 court within six months from the
date of grant of letters of administration with the will annexed, to the
petitioner and also to render to this court, a true account of the said property
and credits within one year from the said date. Thus, he seeks the releif as
prayed for.
4.Written statement filed by the defendants in TOS is as follows:
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(a).The mother of the plaintiff and defendants ie.Late Mrs. Vatsala Devi
had acquired these properties from her ancestors and hence the mother cannot
execute any will in respect of the same as stated by the plaintiff. When the
properties are not self acquired and when the properties are ancestral
properties, all the legal heirs are entitled to equal shares in respect of the same
and therefore, the mother cannot bequeath the entire properties only in favour
of her sons, let alone all her daughters, by totally depriving them.
b). The properties are not self acquired properties. The contentions of
the mother in the alleged will reads as follows: "Out of the properties
mentioned in the schedule to this will, one property was acquired by me
through my grand mother on 24.07.1959 and the another property was
acquired by me through my mother on 18.04.1969 and the third property was
purchased by me from my own funds". From the above recitals in the will
itself, it would be abundantly clear that these properties are ancestral
properties acquired 40 to 50 years earlier before the date of the alleged will of
the year 2001.
c)In addition to the above, since the testator was an unemployed house
wife, it would also be clear that the third property said to be purchased by her
is nothing but the income derived from the said ancestral properties. When
the third property is purchased evidently from the ancestral nucleus may, it
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may also be treated as an ancestral property. Therefore, the alleged will said to
be executed by the mother in respect of all the properties in favour of the
plaintiff and said Rajasekar, thereby depriving the right of all the other legal
heirs, is totally illegal and unlawful and hence unsustainable before the Court
of Law. As the plaintiff, R. Rajasekar and these defendants herein, who are
legal heirs, are entitled to equal shares and accordingly, these defendants are
entitled to equal 1/5th share each in all the suit properties. The said will is a
fraudulent and invalid one, because it was said to be obtained from the mother
during the period, while she was undergoing continuous and hectic treatment
in various Hospitais. Thus, the plaintiff has come to this Honourable Court
with unclean hands and that he had misrepresented the true facts and filed the
plaint to suit his convenience and played fraud and foul play before this
Honourable Court and hence the entire plaint is liable to be rejected.
Therefore, TOS is liable to be dismissed.
5.Additional Written Statement filed the defendants in TOS is as
follows:
(a).Defendants' brother R. Rajasekar had requested the defendants to
execute a document on 11.07.2003 thereby releasing all their rights in respect
of one of the alleged Will properties, which is more fully described in the Item
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
No.1 of the schedule of property and it was executed and registered as
Doc.No.2034 of 2003 at the S.R.O.Royapuram. The Item no.2 & Item No.3 of
the plaint schedule mentioned properties, a school under the name of Sri
Saradha Devi Educational Trust is being conducted and the said trust was
founded by the deceased father P.K. Radhakrishnan.
b)The said educational trust is the family trust consisting of the
following persons as its Executive Committee Members: The father P.K.
Radhakrishna, was the president and the mother R.Vatsala Devi was the
secretary, the husband of the 1 defendant namely C.Palani, the husband of the
2nd defendant namely Dr.S. Chandramohan, and the husband of the 3rd
defendant namely V.K.Hariharan, The 2nd defendant Jayanthi are the
executive committee members.
c). Subsequently, R.Vatsala Devi has formed another Trust
namely V.R.K. Charitable Trust, in which Vatsala Devi was the Author of the
Trust, the Vatsala Devi and the Plaintiff R.Saravanan were being the life
trustees and also the following persons were being the members of the
Trustees and Board of Trustees. (1) Mr.C.Palani (husband of the 2nd
defendant), (ii) Mr.Chandramohan (husband of the 3rd defendant), (iii)
Mr.R.Rajasekaran (1 Defendant), (iv) Mrs.C.Jayanthi (3rd Defendant), (v)
Mr.V.K.Hariharan (husband of the 4th defendant).
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
d).The main object of the Trust is to take into fold Saradha Devi
Matriculation Higher Secondary School and to operate it as one of the units of
Trust. The said Trust was registered as Doc No.284 of 2001 at SRO,
Royapuram. The suit properties, which are evidently the joint family
properties, are bequeathed to the said Trusts to conduct schools and hence the
said Joint Family Trusts was formed as mentioned above by including the
husbands of these defendants and defendants as its executive committee
members and members in Board of Trustees.
e)Even though the plaintiff had continued to run the schools after
the death of the father and then the mother, these defendants along with their
brother R.Rajasekar are having their equal right, title and interest in the said
properties, in which the said joint family educational and public charitable
trusts is functioning. This amounts to continued possession and enjoyment of
all the joint family properties by all the joint family members and there is no
question of any independent rights by the plaintiff. Therefore, without
prejudice to their rights in this TOS, these defendants herein have filed a suit
for partition of the suit properties in C.S. No. 333 of 2013 and the said suit for
partition same is pending on the file of this Honourable Court. Therefore the
above suit, which was based on such a will, is liable to be rejected.
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
6.The case of the Plaintiff, as set out, in the plaint in Civil Suit is as
follows:
(a)The plaintiffs' mother Late Mrs. Vatsala Devi, had died on
24.05.2002 and as per the Indian Succession Act, the plaintiffs and the
defendants, who are surviving legal heirs, have inherited her estate being the
suit properties in equal shares and accordingly, the plaintiffs 1 to 3 and the
defendant 1 & 2 are equally entitled to 1/5th share each in the suit property.
b). The defendants 1 and 2 and the plaintiffs 1 to 3 had all along
been in joint possession and enjoyment of all the plaint Schedule mentioned
properties as absolute and joint owners thereof. In the Schedule B & C
mentioned properties a school under the name of Sri Saradha Devi
Educational Trust is being conducted and the said trust was founded by the
father P.K. Radhakrishnan. The joint family properties are bequeathed to the
said Trust to conduct schools and hence the said Joint Family 'Trust was
formed by including the husbands of the plaintiffs as its executive committee
members.
c)Even though the 2nd defendant had continued to run the
schools after the death of the father and then the mother, all the plaintiffs and
the 1st defendant are having the right, title and interest in the said properties in
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
which the said joint family educational trust is functioning. This amounts to
continued possession and enjoyment of all the joint family properties by all the
joint family members and there is no question of any independent rights by
any one of the 5 joint family members.
d)In these circumstances, the 1st defendant had required the
plaintiffs to execute a document on 11.07.2003 thereby releasing all the rights
of the plaintiffs 1 to 3 and the 2 defendant in his favour in respect of their
undivided share in the property bearing Door No.503, T.H.Road to an extent
of 2000 Sq.ft., constructed area in the ground floor together with an undivided
1/3rd share of right over the land thereof and it was executed and registered as
Doc. No.2034 of 2003 at the S.R.O.Royapuram. Such being the case, the 2nd
defendant herein, who had continued to run the said educational trust and
school for and on behalf of all the joint family members, had started to claim
that he is the sole and absolute owner of all the joint family properties. For
such a false claim the 2nd defendant had produced a Will said to be executed
by the mother on 05.07.2001 registered as Doc. No.71 of 2001 at the
S.R.O.Royapuram. The 1 defendant had even filed a petition in O.P.No.299
of 2010 on the file of the High Court at Madras for grant of letters of
administration and upon filing entrance by the plaintiffs it was converted to
T.O.S.No. 18 of 2011 and the same is pending before this Honourable Court.
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
The said will is a fraudulent one and not valid one as it was said to be
obtained from the mother during a period while she was undergoing
continuous and hectic treatment in various Hospitals as out patient. Without
prejudice to their rights in the above TOS, the plaintiffs herein are constrained
to file this suit for partition of the plaint schedule mentioned properties, on the
following among other grounds:
a) The plaintiffs 1 to 3 and the defendants 1 and 2 are admittedly the
legal heirs of Vatsala Devi, who is the absolute owner of all the plaint schedule
mentioned properties.
b) The plaint schedule mentioned properties are the properties of joint
family educational trust in which the school is being conducted.
c) The husbands of the plaintiffs are the executive members of the joint
family educational trust.
d) In the release deed executed by the plaintiffs 1 to 3 and the 2nd
defendant in favour of the 1st defendant during the year 2003 in respect of
1/3rd undivided share in the ground floor portion of one building - there is no
mention about any will.
e).Without the knowledge and consent of the plaintiffs, the
defendants are trying to alienate the schedule mentioned properties and they
had already sold a portion of the property by getting a release deed. It is stated
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
that the 1st defendant gave the Will of the year 2001 to him during September
2009 only, but both these persons are parties to the release deed of the year
2003. If really there was a Will to any one's knowledge, there may not be any
necessity for executing a release in favour of the 1st defendant that too by
paying valuable moneys as consideration. Evidently, there was no Will at all.
These documents are created to have some support for the 2nd defendant to
usurp all the joint family properties, more particularly since the whereabouts
of the 1st defendant are not known for the past several years.
f). If the defendants are permitted to continue with such of their
enjoyment without partition and without paying any share of mesne profits
derived from the suit property, it would result in great monetary loss and
irretrievable hardships to the plaintiffs. Further if the defendants are allowed
to alienate the suit properties, it will lead to multiplicity of proceedings, as
third parties' rights would intervene. Since the defendants are in possession
and enjoyment of the joint family properties without effecting partition by way
of running the joint family educational trust and schools, they are due and
liable to pay the due share of mesne profits derived from the said educational
trust and schools, which the plaintiffs estimate to a minimum a sum of
Rs.30,00,000/- per year and accordingly, the plaintiffs 1 to 3 are entitled to get
a sum of not less than Rs.50,000/- each per month towards their 1/5th share of
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
mesne profit per month. Thus, the plaintiffs seeks the relief as prayed for.
7.Written Statement filed by the defendants in Civil Suit is as
follows:
a). Certain properties that were bequeathed to the first defendant were
sold by the first defendant. A school conducted by "Sri Saradha Devi
Educational Trust" which was founded by the father of the parties is
established in the property bearing Door No. 16/1, Kummallamman Koil
Street, Tondiarpet, Chennai. The plaintiffs are the other so called executive of
members do not take any interest in conducting a suit and the second
defendant alone is conducting the suit complaint with the strict statutory
regulations that are in impose for conducting an educational institute.
b)The property that belonged to the mother of the parties are not
joint family properties. They are not also bequeathed to the said trust in
conduct the schools. The plaintiffs have not any rights title or interest in the
property in which presently the school is established. Even according to the
plaintiffs, Mrs. Vatsala Devi, mother of the parties executed a Will on
05.07.2001 which was duly registered bequeathing a property in No.503,
present Door No.504, Thiruvottriyur High Road, Old Washermanpet, Chennai
600 021 in favour of the first defendant. The first defendant was in death and
in order to discharge the cheques, even without probating the Will dated
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
05.07.2001 the forged the property after that paying release from all the
plaintiffs and the first defendant it does not nullify the effect of the Will. After
the second defendant received the original Will filed the petition in
O.P.No.299 of 2010 for grant of letter of administration the plaintiffs entered
appearance and as objected for a Will being probated, the original petition was
converted in to a Testamentary suit and it now pending.
c).The release deed obtained by the first defendant does not in
any way bar the second defendant from claiming his right arising out of the
way after it is probate. It is further submitted by the second defendant that, he
had been a party to the release as a person can join such release by way of
abundant caution. As the will was not probated at the time where release were
obtained the second defendant was a proper party to the release. As already
submitted the first defendant was in a hurry to sell the property that was
bequeathed to him as he was in death. Therefore he came forward to pay the
plaintiff, a certain amount to get the release deed. Thus, he seeks the relief as
prayed for.
8.Based on the above said pleadings in TOS, the following issues were
framed:
"(i) Whether the registered Will dated 5.7.2001,
executed by Late R.Vatsala Devi, is genuine and valid and not
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
surrounded by suspicious circumstances?
(ii) Whether the suit properties are bequeathed to Sri
Saradha Devi Educational Trust and V.R.K. Charitable
Trust?
iii) Whether the executor had the right to execute the
Will?
iv) Whether the Plaintiff's cause of action ceased to
exist due to the coming into existence of registered Document
No.147/2008 dated 21.01.2008 and Document No.2034/2013
dated 11.07.2013?
v) To what relief, the plaintiff is entitled to?
9.Based on the above said pleadings in CS, the following issues were
framed:
"(1)) Whether the suit properties are joint family
properties?
(ii) Whether the suit properties are bequeathed to Sri
Saradha Devi Educational Trust and V.R.K. Charitable
Trust?
(iii) Whether the registered Will dated 5.7.2001,
executed by Late R.Vatsala Devi, is genuine and valid and not
surrounded by suspicious circumstance?
(iv) Whether the denial of benefits in the Will to the
plaintiffs is a serious suspicious circumstance?
(v). Whether the conduct of the defendants in Document
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
No.2034 of 2013 dated 11.07.2003 in respect of the portion of
the Will property in treating the plaintiffs also as title holders
and the suit property as joint family property amounts to open
admission of their equal title in all the suit properties as
claimed by them in this partition suit?
vi). Whether the conduct of the defendants in alienating
a portion of the Will property by virtue of Doc ment No. 147
of 2008 dated 21.01.2008 is a clear admission by the
defendals as per the claim of the plaintiffs for equal shares in
the suit properties by way of partition?
vii). Whether the defendants conduct in categorically,
recognising the plaintiff's equal right for share in the suit
properties in the release deed dated 11.07.2003 as well as
sale deed dated 21.01.2008 stands proof that the plaintiffs
have given up the disputed Will?
viii). Whether the defendants are estopped from
denying the character of the suit properties?
ix.) To what relief, the parties are entitled to?
10.On the side of the Plaintiff, Ex.P1 to Ex.P5 were marked and
PW.1 and P.W.2 were examined. On the side of the Defendants, Ex.D1 to
Ex.D7 were marked and DW.1 was examined.
11. Heard both sides and perused the material available on
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
record.
Issue Nos.1, 3 & 5 in Tos and Issue No.3 and 4 in CS
12. The learned counsel for the plaintiff would submit that the
defendants are the brother and sisters of the plaintiff. The Will in question is a
registered Will by Late. Vatsala devi, which was registered at SRO,
Royapuram in D.No.71 of 2001 in favour of her sons. There were two
witnesses namely 1) Mr.Narasimma Bharathi and 2) Mr.M.Venkatesan in the
Will who also signed as attesting witnesses for the said Will which was
marked as Ex.P1.
13. It has been further submitted by the learned counsel for the
plaintiff that the plaintiff Mr.R.Saravanan and one of the attesting witness
Mr.M.Venkatesan deposed as PW1 and P.W.2 respectively. P.W.2. was also
identifying witnesses and saw the Testatrix Mrs. R.Vatsala Devi signing and
executed the Will Ex.P.1. Thus, the plaintiff has proved the Will as
contemplated under the provisions Section 68 of the Evidence Act.
14. The learned counsel for the plaintiff would further submit
that even though it has been stated that the Testatrix had already written a
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
Will dated 26.06.1991 and registered as document No.47 of 1991 which was
cancelled. However, there is no question of earlier Will, if the subsequent Will
is executed. While cross-examining DW1 Mrs.C.Jayanthi, she had admitted
that Mrs.R.Vatsala Devi was not hospitalized". "from the year 1985 and upto
the year 2002 moreover she has deposed that Mrs.R.Vatsala Devi was not
suffering from any disease. This will clearly demonstrate that Mrs. R.Vatsala
Devi was having full conscious and good state of mind had executed the Will
in question.
15. The learned counsel for the plaintiff would further submit
the defendants have filed the suit seeking for partition of their alleged 1/5
share in the properties in items Nos.2 and 3. It is trite law once the Will is
proved beyond all doubts, the right, title, interest over the properties covered
under the Will shall be given to the beneficiary under the Will. Hence, the suit
CS. No.333/2013 fails because the registered Will executed by Mrs. R.Vatsala
Devi is proved beyond all doubts. As such the plaintiff in T.O.S is entitled to
get the grant of Letters of Administration as prayed for. Hence, he seeks to
decree the T.O.S. and consequently, seeks to dismiss the C.S. No.333 of 2013.
16.The learned counsel for the defendants would submit that the
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
Will has been created and fabricated by the plaintiff. The Mother was
suffering from nervous disorder and stiffened fingers since 1990 and was
treated for it in the hospital. In Ex-P1 itself it is stated about the two major
operations underwent by her and that she was suffering from multiple
diseases. Further, no recital in Ex.P1 with regard to the contents of the will
were read over to Vatchala Devi and she understood the contents before
signing it. Hence, she would not have signed in the Will executed in the year
1994.
17.It has been further submitted by the learned counsel for the
defendants that the disputed will was alleged to have been executed on
5.6.2001 and registered on 5.7.2001. Hence, the disputed Will Ex P1 was not
genuine and that the late Vatchala Devi would not have executed the same
voluntarily, and that the signatures of Vatchala Devi differs in Ex.P. 1 itself.
Further, he contended that while the Will dated 05.06.2001 was executed the
Item Nos.1 to 3 in favour of the plaintiff and the 1st defendants respectively,
why the plaintiff and the defendants 2 to 4 have jointly executed registered
release deed dated 01.07.2003 in favour of the 1st defendant for Item No.1 of
the Suit schedule property after receiving the consideration in lieu of 1/5 share
each.
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
18.The learned counsel for the defendants would further submit
that the school in the schedule is being run by the trust Ex. D6 and D-7 prove
that the suit property is a family Trust property. Further, the defendants 2 to 4
were trustees Ex.D-3 and D-4 and D-5 clearly proves the close relationship
between the deceased and D2 to D4 and also their active participation in the
administration of the trust. PW2 was working as teacher under the plaintiff,
drawing salary from him. He is an interested witness and his evidence does
not inspire confidence. Hence, the Will is surrounded by suspicion. Hence, he
seeks to decree the Civil Suit as prayed for and to dismiss the TOS.
19. On perusal of the records, it is stated by the plaintiff that the
Will dated 05.06.2001 has been received from his Elder brother/1st defendant
herein in the year of September 2009. However, he did not whisper anything
about the 1st defendant of his whereabouts. Further, in the plaint itself, it is
averred that the Last Will and Testament of R.Vatsala Devi was duly executed
by her at Chennai on 05.06.2001 in the presence of the witnesses whose
names appear at the foot thereof. The will was duly registered in the office of
the Sub Registrar, Royapuram, on 05.07.2001. However, per contra, in the
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
evidence of P.W-2 who is one of the attesting witnesses, he has deposed that
he did not know about the contents in the said Will and when was it executed
as well as interpolation contents included in the Will. Further, he has not
deposed clearly that initially who has signed in the Will and thereafter, by
which one attesting witnesses had put the signature. Further, he has not
stated anything about the state of mind and health condition of the Testatrix
during the execution of the said Will.
20. The Will dated 05.06.2001 was executed in the year 2001 and
Testatrix died on 24.05.2002. Whereas on perusal of Ex.D1-Release Deed
dated 11.07.2003, it is seen that the Plaintiff and the defendants 2 to 4 have
jointly released the Item No.1 of the suit schedule property, in favour of the 1 st
defendant after receiving the consideration of Rs.25,000/- each relinquishing
their respective shares therein in the year 2003. The same property was sold
by the 1st defendant to one Radha. Vide Ex.D2. Even after execution of the
Release Deed in the year 2003, many things have been happened. However,
the plaintiff has not whispered about the same. There was one month delay
between the execution and registration of Will for which no reasons has been
stated by the plaintiff.
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
21. Under such circumstances, the plaintiff has failed to prove the Will
dated 05.06.2001 in the manner known to law. Hence, the Registered Will
dated 5.7.2001, executed by Late R.Vatsala Devi, is not genuine and valid as
it creats suspicious. Accordingly, Issue Nos.1 in Tos and Issue No.3 and 4 in
CS are answered against the plaintiff. Hence, the Plaintff is not entitled to any
other relief as prayed for. Accordingly, the Issue No.5 in TOS is answered.
Once the Will is decided against the plaintiff, the Issue Nos.3 in TOS does not
arise.
issue No.1 in CS
22. Since, Issue Nos.1 in Tos and Issue No.3 and 4 in CS are
answered against the plaintiff and in the said Will itself exposed in page No.2
that Item No.1 proporty was received from her grand mother in her name
dated 24.07.1959, Item No.2 property was received from her mother in her
name on 18.04.1969 and Item No.3 was a self acquired property of the Late.
Vatsala Devi/Testatrix. Accordingly, issue No.1 in CS is answered.
Issue No.2 in TOS and Issue Nos.2, 5,6,7, 8 & 9 in CS:
23.As the plaintiff is one of the party in the Release Deed, Issue
No.1 in C.S. is answered in favour of the defendants and in such
circumstances, it is admitted that the conduct of the Plaintiff in Document
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
No.2034 of 2003 dated 11.07.2003 in respect of the portion of the Will
property in treating the defendants also as title holders and the suit property as
joint family property amounts to open admission of their equal title in all the
suit properties as claimed by them in the parition suit. Accordingly, issue
No.5 in CS is answered in favour of the defendants. Accordingly, the conduct
of the Plaintiff in alienating a portion of the Will property by virtue of
Document No. 147 of 2008 dated 21.01.2008 is a clear admission by the
plaintiff as per the claim of the defendants for equal shares in the suit roperties
by way of partition. Accordingly, issue No.6 in CS is answered in favour of
the defendants. Therefore, the Plaintiff conduct in categorically, recognising
the Defendants' equal right for share in the suit properties in the release deed
dated 11.07.2003 as well as sale deed dated 21.01.2008 stands proof that the
defendants have given up the disputed Will. Accordingly,issue No.7 is
answered in favour of the defendants. Hence, the plaintiff is estopped from
denying the character of the suit property. Accordingly, Issue No.4 in TOS
and Issue No. 8 in CS is answered in favour of the defendants. Further, the
defendants have not filed any documents with regard to the suit properties
which are bequeathed to Sri Saradha Devi Educational Trust and V.R.K.
Charitable Trust, the Issue No.2 is answered against the defendants in both
suits. In view of the above, the Plaintiffs in C.S/defendants in TOS who are the
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
legal heirs of Late R.Vatsala Devi, are entitled to 1/5th share each in the said
suit schedule properties. Accordingly, the Issue No.9 is answered.
24. In the result, the Preliminary Decree is passed in C.S. No.333 to the
aforesaid extent and as a sequel, the Testamentary Original Suit is dismissed.
No costs.
25.10.2024
Index : Yes/No
Speaking Order : Yes/No
Neutral Citation Case : Yes/No
Lbm
List of witnesses examined in TOS and CS:
PW1 - Mr.R. Saravanan
PW2 - Mr. Venkatesan
DW1 - Mrs.C. Jayanthi
List of documents marked on the side of the plaintiff:
Ex.P1 is the original Will executed by late R.Vatchala Devi dated 05.06.2001.
Ex.P2 is the death certificate of late R.Vatchala Devi dated 17.06.2002.
Ex.P3 is the legal heir certificate dated 11.12.2009.
Ex.P4 is the certified copy of the settlement deed.
Ex.P5 is the certified copy of the sale deed.
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
List of documents marked on the side of the defendants:
Ex.D.1 is the release deed dated 11.07.2003.
Ex.D.2 is the sale deed dated 06.10.2005 in favour of one Radha
Ex.D.3 is the Sovenier issued on the occassion of 25th year of Sri Saradhadevi
Matriculation School.
Ex.D.4 is the Sovenier issued on the occassion of 35th year of Sri Saradhadevi
Matric Hr.Sec. School.
Ex.D.5 is the record of lease in favour of the school trust in the name of
Vatsala Devi and the said encumbrance certificate.
Ex.D.6 is the Certified copy of lease deed executed by Vatchala Devi executed
in favour of Sharadha Devi Matriculation Hr.Sec. School in respect of the suit
property dated 26.06.1991 Certified copy of trust deed dated 01.07.2001.
Ex.D7 is the Certified copy of trust deed dated 01.07.2001created by
Vatchala Devi in the name of VRK Charitable Trust.
25.10.2024
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
A.A. NAKKIRAN, J,
Lbm
Pre-Delivery Judgments in
and
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T.O.S.No.18 of 2011 and C.S. No.333 of 2013
25 .10.2024
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