Madras High Court
Tmt. N. Pushpa vs Selvi R.Vimala on 1 April, 2025
T.O.S.No..1 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.04.2025
CORAM
THE HONOURABLE Mr. JUSTICE A.A. NAKKIRAN
T.O.S.No.1 of 2021
(O.P.No.755 of 2014)
1. Tmt. N. Pushpa
2. T.N. Harikrishnan .. Plaintiffs
..Vs..
1. Selvi R.Vimala
2. Selvi R.Booma
3. A.Meeran
4. S.Haroon
5. A.Peer Mohamed
(R3 to R5 impleaded as per the
Order passed in Appl.No.1330 of
2011, dated 18.06.2021)
6. T.R.Murali,
7. T.R. Balaji
8. T.R. Giri
9. R. Vijaya
10.Tmt. R. Usha
11. S. Hemamalini
12. S. Pavithra .. Defendants
PRAYER: O.P.755 of 2014 has been filed under sections 232 and 276 of the
Indian Successions Act, XXXIX of 1925 for the grant of Letters of
Administration. Against this petition, a Caveat was filed by the Caveators. As
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per order of the Court dated 26.08.2019 in Appln.No.5042 of 2017, Letters of
Administration granted on 18.04.2016 in O.P.No.755 of 2014 and on filing
caveat, the order granting Letters of Administration was revoked and
O.P.No.755 of 2014 has been converted into Testamentary Original Suit i.e.,
T.O.S.No.1 of 2021.
For Plaintiff(s) : Mr.S. Balasubramanian
For Defendant(s) : Mr. V.Srikanth for D1, D2 and D6 to D10
Mr.G.Balasubramanian for D3 to D5
D11 and D12 - NA
*****
JUDGMENT
Testamentary Original Suit is filed for grant of Letters of
Administration with the Will dated 22.08.2002 to the 1st petitioner as brother's
wife and 2nd petitioner as a nephew/legatee under the Will of the deceased
Mr.T.D.Ranganathan.
2.The case of the Plaintiffs, as set out, in TOS is as follows:
a) The deceased Testator ie.Mr.T.D.Ranganathan, executed his Last
Will and Testament on 22.08.2002 at Chennai in the presence of witnesses.
Mr.T.D.Ranganathan died at Chennai on 28.05.2006 leaving behind his wife,
his sons 1. T.R.Srinivasan, 2.T.R.Murali, 3. T.R.Balaji and 4. T.R.Giri. They
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are also aware of the Will and all of them are witnesses to the above Will and
they have no claim whatsoever to the Willed property. The parents of the
deceased pre-deceased him and the wife of the deceased died on 25.02.2010.
b)The petitioners are the legal heirs of the deceased Narasimhan who is
the beneficiary under the Will. Narasimhan died on 05.12.2006. There is no
executor named in the Will. The petitioners are the only beneficiary/legatees
under the said Will, unless letters of administration is issued to the Will, they
could not claim any right on the basis of the Will. The 1st petitioner is able to
identify the signature of the testator. The 2nd attester of the Will also died.
Since the necessity arises to dispose of the property, the delay is caused and
may be condoned. The value and amounts of assets that are likely to come
into the hands of petitioners hand does not exceed in the aggregate the sum of
Rs.3,00,000/- and the net amount of the said assets after deducting all items
which the plaintiffs by law allowed to deduct is only of the value of
Rs.3,00,000/-. The petitioners undertake to duly administer the property and
credits of the said T.D.Ranganathan deceased in any way concerning his Will
by paying first his debts and then the legacies therein bequeathed so far as the
Will extended 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 .
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c)The plaintiffs have not made any application to any District or
delegate or to any other High Court for probate or Letters of Administration
with or without Will on his property and credits. The petitioners have
impleaded all next of kin or other persons interested as party respondent all
the heir and next of the deceased are arranged as respondents in this petition.
Hence, this suit.
3. The averment of written statement filed by the defendants 1 and 2 are
as follows:
a) These defendants are daughters of Late T.D.Ranganathan. They are
the co-owners of the property situate at Door No.6, Old Door No.20,
Mohammed Abdullah Sahib, 2nd Street, Chepauk, Triplicane, Chennai-5. The
property pertaining to the Will was purchased by their father late
T.D.Ranganathan and his younger brother T.D.Narashiman through a
registered sale deed dated 24.06.1970. These defendants, being unmarried,
unemployed and have no source of income and during the life time of their
father, were completely dependent on him and after his death, they were being
taken care of by their brothers/defendants 6,7 and 8 and they have been living
in joint family with their paternal uncle T.D.Narashiman. T.D.Narashiman
died in the same year 2006. After the marriage of defendant's brothers, the
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defendants 1 and 2 and their brothers all moved out of the said property and
they are residing under the care of their brothers. As the plaintiffs have not
come forward for amicable partition, they took legal action against the
plaintiffs and on obtaining encumbrance certificate for the said property, it
came to know that the plaintiffs have surreptitiously alienated the said
property to some third parties through three different sale deeds dated
21.04.2017. The plaintiffs have no right to deal with the share of the
defendants in the said property which they inherited from their deceased
father, as such, the sale is not binding on the defendants.
b) At the instance of the defendants, Letters of Administration granted
vide order dated 18.04.2016 in the above O.P.No.755 of 2014 was revoked
by order dated 26.08.2019 made in A.No.5042 of 2017 as the same has been
obtained fraudulently. Their father T.D.Ranganathan would never have
executed the alleged unregistered Will dated 22.08.2002 propounded by the
plaintiffs. A major derision as allegedly claimed by the plaintiff of writing a
Will, that too, depriving these defendants, who are unmarried and
unemployed from inheritance would never have been done by their father
without registering the same. The non registration of the alleged Will which
was executed in non judicial stamp paper is clearly a fabrication, unnatural
and raises suspicion about the genuineness of the Will. Thus the alleged Will
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dated 22.08.2022 introduced by the plaintiffs is a fabricated one and not true
and genuine.
c) The Will does not state about all the legal heirs of Testator and no
reasons had been given for exclusion of legal heirs of alleged Testator from
inheriting his property. In the first page of Will, there is over writing in hand
as 'four' after scoring out the typed text of three which clearly exposes the
fabrication. After the death of first son of Testator on 04.07.2013, OP.No.755
of 2014 has been filed during August 2014 and in the circumstances, the
alleged Will could have been fabricated during the period between July 2013
and August 2014, at which point of time, there were three sons surviving late
T.D.Ranganathan. Thereafter, overwriting was made in the alleged fabricated
Will to make it as four sons, which clearly demonstrates that the Will was
created after the death of the father of the defendants. There was an
interpolation to include letter 'T' in the initials before the names of four
brothers of these defendants in para 3, page 3 of the alleged Will and such
interpolation has not been initialled by the executor. The Will does not
contain the particulars of the drafting person. The date mentioned in the Will
at 1st and 5th page is in a different ink and hand writing and in different
pen/ink which creates suspicion.
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d) Though the brother of the Testator T.D.Narasimhan, the alleged
beneficiary of Will was alive till 05.12.2006, six months after the death of
alleged Testator, no steps were taken by T.D.Narasimhan to obtain Letters of
Administration until his death and the plaintiffs have not given any
acceptable reasons for the same. The delay of 8 years to file the petition to
prove the Will raises suspicion over the existence of the alleged Will. Their
father was very affectionate towards all his eight children who are defendants
1,2,6 to 10 and 11 and 12 who are his daughter in law and grand daughter of
his deceased first son and he would never leave in lurch of his two unmarried
and unemployed daughters to the mercy of his other children by depriving
them from inheriting his self acquired property. After obtaining Letters of
Administration, immediately the plaintiffs have sold the said property to third
parties which is not binding on the defendants and other legal heirs of the
deceased T.D.Ranganathan. Hence, the suit is liable to be dismissed.
4. The averments of Written Statement filed by the defendants 6,7 and
8 is as follows:
i. The defendants 6,7 and 8 are brothers of defendants 9 and 10, the
11th and 12 defendants are widow and daughter of their pre-deceased brother
T.R.Srinivasan. Their father T,.D.Ranganathan and his younger brother
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T.D.Narasimhan have started a Partnership Firm in 1960. For the purpose of
business, their father T.D.Ranganathan has signed in the blank papers, letter
heads and in stamp papers and the same were in the custody of his younger
brother T.D.Narasimhan. They apprehend that such blank signed papers and
documents could have been misused by the plaintiffs for fabricating the
alleged Will dated 22.08.2002. The execution of the alleged Will gives rise to
suspicious circumstances for the following reasons:
● no father would deprive his two dependant daughters who are unmarried
and unemployed from inheriting his property
● The alleged Will was projected only in the year 2014, after the death of the
alleged testator on 28.05.2006 , after 8 long years and the plaintiffs did
not disclose the execution of Will during the life time of his wife
Amirdhavalli.
● The 1st plaintiff treated the defendants 1 and 2 like aliens and deprived
them of their inheritance of their father's share in the property.
● The plaintiffs have not endeavoured to get evidence of 1st attesting witness
to the alleged Will one V.Govindarajulu.
● OP.No.755 of 2014 has been filed without including the legal heirs of
alleged Testator and Letters of Administration was obtained behind the
back of these defendants
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● The Will did not surface immediately after the death of T.D.Ranganathan
or during the life time of their uncle T.D.Narasimhan or upto June 2014
when the plaintiffs and defendants 1 and 2 lived jointly in the said property
and their uncle, the alleged legatee would never have acted adverse to their
interest. Hence, the Will propounded by the plaintiffs is fabricated,
unnatural and shrouded with suspicious circumstances.
5.Based on the above said pleadings in TOS, this court on 09.01.2023
framed the following issue for consideration.
Whether the Will dated 22.08.2002 said to have been
executed by T.D.Ranganathan is genuine?
6. On the side of the Plaintiffs, exhibits Ex.P1 to Ex.P14 were marked
and witnesses, PW.1 and PW2 were examined. On the side of the Defendants,
exhibits Ex.D1 to Ex.D4 were marked and witness DW.1 was examined.
7. Heard both sides and perused the material available on record.
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Issue No.1
8. The learned counsel for the plaintiffs has submitted that the
evidence given by PWl is clear and cogent and he has produced the Will
executed by T.D.Ranganathan in favour of his own brother T.D.Narasimhan.
Apart from raising a plea, as if there was a slight correction in page No 3 of
the Will, the other facts contained in the Will has not been disputed by the
defendants. The Will is attested by two witnesses ie. K.K. Govindaraj and
J.Desikan. The evidence of PW1 was not shaken at the time of cross
examination. The 8th defendant has himself produced various stamp papers
in Ex.D.4 and signatures of the deceased T.D.Ranganathan as compared with
signatures of Ex.D.2 are not different. The 8th defendant who was examined
as D.W.1 has also confirmed the signature filed in the proof affidavit and
that they are same by comparison with signature as found in the Will.
Therefore the signature of the deceased T.D. Ranganathan has been proved
and that D.W. 1 who is having knowledge about the signature of his father
has unwittingly admitted the same.
9. It has been further submitted that since the two attesting
witnesses are repoted died, the son of the 2nd attesting witness had been
examined as P.W.2 thereby the Will has been proved. Further, D.W1 being a
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signatory in the said Will, has not disputed the signature either in the written
statement or cross examination nor signature of his brothers. The admitted
signature of D.W. 1 is found in the deposition and even otherwise the same
can be compared to the signature found in the Will and significantly right
from the date on which he has filed the Vakalath through Counsel. The
aforesaid fact will clearly shows that execution of the Will as required under
section 63 of the Indian succession Act 1929 read along with provisions of
Indian Evidence Act 1872 have been completely satisfied.
10. The learned counsel for the plaintiffs has further submitted
that the first and second defendants in the suit have not chosen to enter into
witness box and they are seeking to defend themselves through their proxy
D.W.1. In the D.W1 cross examination, neither the signature of the Testator
nor signature of sons of the Testator were disputed by the defendants as well
as the defendants 1 and 2 have not gone into the witness box, it proves that
Will Ex.P2 is genuine and valid. Therefore he prays to decree the suit as
prayed for in the suit.
11. The learned counsel for the defendants 1, 2 and 6 to 12 has
submitted that the alleged unregistered Will Ex.P-2 has been typed in
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existing signed blank stamp paper Ex.D-4 series left behind by T.D.
Ranganathan. It clearly shows that specifying the date in page No.5 of the
Will at the top, in the already signed paper. The alleged unregistered Will
dated 22.08.2002-Ex.A-2 was not made public by the plaintiff, immediately
on the death of T.D.Ranganathan 28.05.2006 or thereafter. The Will was not
shown to anyone, nor made public until the year 2014. After 8 long years the
death of T.D. Ranganathan, O.P. No.755 of 2014 has been filed. The
Defendants were residing in the suit property until 2014, and there was no
whisper by the Plaintiffs about the existence of any such Will now
propounded by the Plaintiffs. Thereby creates suspicion on the very existence
of such document. Therefore, the alleged Will is not true and genuine. It is a
fabricated document, created at the instance of the Plaintiffs.
12. It has been further submitted that in page No.3 of the Will,
there is interpolation in third para where the typewritten "three" has been
scored out and written as "four" by hand. It has not been countersigned by the
alleged testator. The signed paper of other persons has been used as the last
page of the Will, as there is no necessity for six signatures. While defendants
1 & 2 are not keeping good health, unmarried and unemployed and they are
solely dependant on their brothers and sisters/Defendants-6 to 12 for their
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bare survival, there is no possibility of bequeathing the suit property to his
brother.
13. The learned counsel for the defendants 1, 2 and 6 to 12 has
further submitted that even if there are two attesting witness in the alleged
unregistered Will Ex.A-2 dated 22.08.2002, Death Certificate of J.Desikan,
the 2nd attesting witness alone has been marked as Ex. P-5 and PW2
Mr.D.Sidhar son of late J. Desikan alone deposed in evidence. The reliability
of the evidence tendered by PW-2 could be tested without conceding the
legal position that the secondary evidence under Section 69 could not be
availed without satisfying the mandatory requirement of Section 68. As such,
the evidence of PW-2 is of no avail to the plaintiffs' case. The Plaintiff is
bound to explain to the Court (a) the endeavor made to procure evidence of at
least one attesting witness; and (b) the reasons for not being able to produce
such witness. It is only thereafter, could any secondary evidence be tendered.
As such, the evidence of Sridhar PW-2 (son of one of the attesting witness) is
of no relevance, in the absence of any convincing reasons for the plaintiffs
inability to procure the 1st attesting witness K.K.Govindarajulu. Hence, he
seeks to dismiss the suit with cost and thus render justice.
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14. On perusal of the records, it is seen that Ex.P2 is said to have
been executed on 22.08.2002 by the Testator to his younger brother ie.T.D.
Narasimhan. The Testator and original beneficiary are reported dead in the
year 2006. But, the O.P. No.755 of 2014 has been filed by the legal heirs of
original beneficiary in the year 2014 after 8 years of their death.
15. On perusal of the plaint, it is seen that the plaintiffs have
only impleaded 4 sons of the Testator even though there are other 4 daughters
to the Testator. While being so, the plaintiffs in their plaint, have stated that
the petitioner has impleaded all next of kin or other persons interested as
party respondent all the heir and next of the deceased are arranged as
respondents in this petition. Further, it is averred in the plaint that there is no
next of kin or other persons interested to be impleaded. It is seen in the plaint
that they have not stated anything about the four daughters of the Tesator as
legal representative of the Testator. However, after caveat filed by the
defendants 1and 2, the plaintiffs have impleaded all the legal heirs of the
Testator. In this regard, the plaintiffs have not whispered anything about why
they have not impleaded in the plaint and also not brought about them in the
averments. Therefore, it creates suspicion.
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16.In the plaint, in the paragraph No.8, it is stated that the 1 st
petitioner is able to identify the signature of the Testator since the 2 nd attestor
also died whose death certificate is in the list of documents. However, the 1st
plaintiff has not whispered anything in this regard in the proof affidavit.
Despite two attesting witnesses are in the Will, the Plaintiffs have not
whispered anything about the 1st attesting witness in the plaint. But, even if
the P.W1 has averred in the proof affidavit that two attesting witnesses are
not alive, death certificate of the 1st attesting witness has not been filed to
prove the same. Further, they have not taken any stepts to identify him by
serving notice and to bring his legal heirs to prove his signature. Hence, it
creates suspicion.
17. On perusal of the alleged unregistered Will Ex.P-2, it is seen that
the entire contents along with month and year have been typed in the last
page of the Will, the date alone is found to be written. Further, in page No.3
of the Will, there were interpolations in third para where the typewritten
"three" has been struck off and written as "four" and before the names of sons
of the Tesator, initial “T” has been written by hand. However, it has not been
countersigned by the alleged testator. Further, the plaintiffs have not given
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any proper explanation in this regard in the proof affidavit and deposition.
Further, the Testator has not stated about his daughters in the Will regarding
their names, while the defendants 1 & 2 are said that they are not keeping
good health, unmarried and unemployed. Further, it is seen that the said Will
was executed in non-judicial Stamp paper of Rs.20, one Advocate, Mr. K.
Srinivasan being a Notary Public, has signed mentioning his Enrolment No
and address. The recital of the said Will seems to be a Sale Deed. Therefore,
it creates suspicion.
18. On perusal of deposition of PW1, it reveals that the suit
property has been sold out. Thereafter, the claim for grant of Letters of
Administration cannot be entertained. The plaintiffs have filed the present
suit after 8 years of death of the Testator and original beneficiary. The reason
for the delay stated in the plaint is untenable and not acceptable.
19. In the evidence of P.W.2, it is seen that as Mr.D.Sridhar son
of late J. Desikan, is the relative of Narasiman, he seems to be an interested
witness.
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20. In view of the aforesaid observations, this Court is of the
considered view that the plaintiffs have failed to prove the alleged Will dated
22.08.2002 by way of oral and documentary evidence. Accordingly, Issue
No.1 is answered and hence, the plaintiff is not entitled for letter of
administration.
21.In the result, the TOS is dismissed. No costs.
01.04.2025
Index : Yes/No
Speaking Order : Yes/No
Neutral Citation Case : Yes/No
msr/lbm
List of witnesses examined in TOS No.1 of 2021
PW1 - Mrs.N.Pushpa
PW2 – Mr.D.Sridhar
DW1 - Mr.T.R.Giri
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List of documents marked on the side of the plaintiff:
Ex.P1 is the original death certificate of T.D.Ranganathan, dated 08.06.2007
Ex.P2 is the original will dated 22.08.2002
Ex.P3 is the original death certificate of T.D.Narasiman, dated 18.12.2006
Ex.P.4 is the original legal heirship certificate of Mr.T.D.Narasiman dated
13.03.2007
Ex.P.5 is the original death certificate of J.Desikan, dated 17.12.2007
Ex.P.6 is the affidavit of assets sowing the net value of the estate for
Rs.3,00,000/-
Ex.P.7 is the paper publication in Tamil Daily 'MALAI SUDAR' dated
07.12.2015
Ex.P.8 is the paper publication in English daily 'NEWS TODAY' dated
27.11.2015
Ex.P.9 is the death certificate of R.Amirthavalli, dated 29.04.2023
Ex.P.10 is Photo
Ex.P.11 is Photo
Ex.P.12 is Photo
Ex.P.13 is Photo
Ex.P.14 is Photo
List of documents marked on the side of the defendants:
Ex.D.1 is the photocopy of the intimation about the transfer of 8th defendant
to Bangalore dated 26.08.2002.
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Ex.D.2 is the intimation of the 8th defendant who stationed at Bangalore
dated 08.10.2002.
Ex.D.3 is the letter to Branch Manager, Central Bank of India by “THE
ARTS” dated 09.11.2006
Ex.D4 is the series of Blank documents (5 in Nos.) signed by the deceased
T.D.Ranganathan.
.04.2025
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A.A. NAKKIRAN, J,
msr/lbm
Pre-Delivery Judgment made in
01.04.2025
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