Madras High Court

G. Sivasankaran vs G. Porkodi on 7 February, 2025

TOS.No.5 of 2020

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 07.02.2025

CORAM:

THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN

T.O.S.No.5 of 2020
(O.P No.790 of 2019)

G. Sivasankaran ... Plaintiff

..Vs..
G. Porkodi ... 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 V.
Ganesan. Against this petition, a Caveat and Objection affidavit was filed
by the Caveator on 21.01.2020. As per order of this Court, the Original
Petition No.790 of 2019 was converted into Testamentary Original Suit
No.5 of 2020.
For Plaintiff : Mr.K.V. Babu
(For M/s.R. Meenakshi)

For Defendant : M/s.G.S. Shive kumar

*****

1/19
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TOS.No.5 of 2020

JUDGMENT

This Testamentary Original Suit has been filed to grant Letters of

Administration with the Will, dated 14.08.2008, executed by the deceased

Testator V. Ganesan, annexed, in favour of the Plaintiff as beneficiary

under the said Will, having effect throughout the State of Tamil Nadu.

2.The case of the Plaintiff, as set out, in the plaint is as follows:-

The deceased V. Ganesan, son of Varadhan Naicker was

ordinarily residing at No.13/6, Theeti Thottam 2nd Street, Sembiam,

Perambur, Chennai-600 011 and possessed of property within the State of

Tamil Nadu. Late Ganesan was the father of the petitioner and the

respondent herein. The last WILL and testament was written on

14.08.2008 and he died on 27.08.2008 at Sri Ramachandra Medical Centre

& Research Institute.

(ii)The writing herein to annexed now shown to the petitioner

and marked with Letter "A" is the Last WILL and Testament of the said

Late Ganesan and was only executed on 14.08.2008 by him at his

residence at No.13/6, Theeti Thottam 2nd Street, Sembiam, Perambur.

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Chennai-600 011 in the presence of witnesses who attested at the foot

thereof. No executor was appointed under the will. As per the Will, the

movable properties viz. gold jewels, silver articles, etc. as found in the said

Will are to the respondent and the immovable property viz. the house

property at No.13/6, Theeti Thottam 2nd Street, Sembiam, Perambur.

Chennai-600 011 will be enjoyed by the mother of the petitioner who has

got life estate and after her life time, it will be absolutely vested with the

petitioner. The petitioner's mother died on 07.05.2009 and except the

respondent there is no next kin other interested persons to be impleaded as

a party to the above proceedings.

(iii).The petitioner is the son and the respondent is the daughter of

the deceased late Ganesan. To avoid further litigation, after the death of the

mother of the petitioner and the respondent. The petitioner handed over all

the jewels of the mother weighing about 17 sovereigns of gold jewels

including the Thali Chain to the respondent.

(iv)The amounts of the assets which are likely to come into the

hands of the petitioner does not exceed in the aggregate the sum of

Rs.30,00,000/- and the net amount of the said assets after deducting all

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items which the petitioner by law allowed to deduct is only the value of

Rs.30,00,000/-.

(v).No application has been made to any District Court or to any

other High Court for the probate of the Will of the said deceased of letters

of administration with or without a Will annexure for his properties and

credits. The original Will was handed over to the petitioner by the mother

of the petitioner Smt. Komalavalli, who got life estate over the said

property in the year of 2009. At that time the petitioner was employed,

therefore, he was unable to pay the court fee and other expenses, therefore

delay in filling the application, the delay is neither will full nor wanton.

(vi). That the petitioner hereby undertakes to duly administer the

property and credits of the said deceased Ganesan and in any way

concerning his Will, by paying first his debts and then the legacies

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. Hence, this TOS

has been filed, seeking the reliefs, as stated above.

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3.The case of the Defendant, in a nutshell, as set out in her

written statement, is as follows:-

(i).The defendant is the sister of the plaintiff. The plaintiff's

father was employed in the B&C mills, Otteri Chennai. He purchased the

land situate at Theeti Thottam of his own funds in the year 1977. The sale

deed was registered as document No.1440 of 1977, SRO, Sembium. He

constructed super structure by mortgaging the land with the Purasiwalkam

Permanent Fund and discharged the loan from the rental proceeds from the

house built on the land. He again mortgaged the land with the

Purasiwalkam Permanent Fund on 30.06.1997 and 15.07.1999 and the

mortgage was redeemed on 06.03.2007. He had mortgaged the property for

the second time was to meet marriage expenses of the plaintiff.

(ii).The defendant's father was highly diabetic patient and also

underwent treatment in E.S.I. hospital. Ayyanvaram for mental health

related issues till 1993. He was taking treatment at the ESI hospital during

his employment and took treatment for the mental related issues in the

private hospital after the retirement. In other words, he was taking this

above referred treatment regularly. He was depended on either on his wife

or the defendant to carry out his decisions. Moreover, he was taking high

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dosage of insulin medicine for his severe diabetics also. Moreover

defendant mother from 2001 she was affected with cancer and underwent a

treatment at Adyar cancer hospital and got cured.

(iii).The plaintiff after the marriage in the year 1999 stayed

permanently with his wife at her residence. He did not stay with his

parents. He did not take care of his parents either before or after the

marriage. The defendant and mother took care of father till his death. The

will dated 14.8.2008 alleged to be executed by V.Ganasen father of

plaintiff and the defendant bequeathing the entire property to and in favour

of the plaintiff has been fabricated and and the signature of Testator was

forged.

(iv).The defendant and her mother were always been with her

father to take care of his failing health. The defendant is in the possession

of all the documents to support her statement. The defendant stayed with

her husband with her parents after the marriage with sole purpose to take

care of the parents, especially her father. He was admitted in the

Ramachandra Hospital on 12.8.2008 as ulcer in the left leg became septic

and foul smell emanated from the wound and it has been amputated. More

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over, he did not speak coherently because he did not take medicines

prescribed by the doctor who was taking care of mental issues. He was not

in a position to understand things or aware of the surroundings. He used to

shout without any reason because of wound in the left leg which became

septic saddled with mental related issues. The defendant had 'Hobson's

choice but bring back to the house on 12.8.2008 with great difficulty. His

left leg began to decompose rapidly after he came home on 12.8.2008. The

plaintiff, though, informed did not visit his ailing father on 12.8.2008. He

lost the conscious and the defendant or any person could not go near to

him due emanating foul smell from the left leg.

(v) While he was admitted in the Ramachandra Hospital in the

ICU ward on 22.8.2008, the plaintiff did not come to the hospital. The

defendants' father was operated and died at the hospital on 27.8.2008 at

7.15 am. The defendants and her relatives were all present at the time of

his death. The defendant's father could not have executed the allged will

on 14.8.2008 as claimed by the plaintiff since he was not in a position to

comprehend anything. As stated supra, he lost conscious after he was

discharged from hospital on 12.8.2008. The foul smell emanated from the

wound was unbearable. No person could not able to go near him. In these

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circumstances, it was impossible for him to have executed the alleged will

on 14.8.2008 as claimed in the petition.

(vi). In fact the testator during his life time had divided the entire

property with super structure in two halves allotting right side of the

property to the defendant and left side portion to the plaintiff. The

defendant is in possession of the land and super structure situate on the

right side. The defendant has leased the building and receives rent from the

tenants till date. The plaintiff also receives the rent for his portion on the

southern side. The plaintiff impliedly accepted this division made by the

father and has not raised any objection with regard to the division in the

property till date. The Property tax, Wates tax Electricity bill, have been

paid by the defendant till date.

vii) The plaintiff has filed OS. No.2588 of 2012 on the file of

XII Assistant City Civil Court, Chennai for an injunction simpleiter to

restrain the defendant from interfering with the peaceful possession of the

property which was dismissed on 10.12.2015 and no appeal has been filed

and the decree and Judgment has become final. It is relevant to point out

that the Letters of administration was filed in the year 2019 for the will

alleged to have been executed on 14.8.2008 and no sufficient reason was

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stated for the delay in filing the original petition. The reason stated that it

was filed after the mothers demise. My mother who was a cancer patient

died on 07.05.2009. The petition was filed after ten years after death of the

mother. No proper reason was adduced for the inordinate delay. In no

uncertain reason terms that the alleged will was a manipulated one.

Further, the 1st witness to the said alleged will dated 14.8.2008 is

plaintiff's father-in-law and the 2nd witness is also relative of his father-in-

law. Therefore, the suit is liable to be dismissed with exemplary costs.

4. On the pleadings of the parties and hearing the learned

counsel on either side, the following issues were framed for

determination:-

(1) Whether the Will dated 14.08.2008 executed by the Testator is valid in law and genuine?

(2) To what other reliefs of the parties are entitled?

5. On the side of the Plaintiffs, the plaintiff was examined as

PW1 Ex.P1 to Ex.P21 were marked. On the side of the Defendant, D.W1

was examined and Ex.D1 to Ex.D4 were marked.

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6. Heard both sides and perused the materials available on

record.

Issue Nos.1 and 2:

7.The learned counsel for the plaintiff submits that as per the

Will, the movable properties viz., gold jewels, silver articles, etc as found

in the said Will are to the defendant and the immovable property ie. The

schedule mentioned suit property will be enjoyed by the mother of the

plaintiff who has got life estate and after her life time, it will be absolutely

vested with the plaintiff. After the death of their mother, all the jewels of

the mother weighing about 17 sovereigns of gold jewels including the

Thali Chain has been handed over to the defendant and the plaintiff is

entitled to take possession of the suit property.

8. It has been further submitted that the Will was executed by

the Testator with the sound disposing state of mind and to prove the same,

two attesting witnesses ie. (1)PW.2 -M.Selvaraj and (2)PW.3-Mr.K.

Munusamy, whose names appear at the foot of the Will, were examined.

Hence, he prays to grant letter of Administration in favour of the plaintiff.

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9.The learned counsel for the defendant submits that the alleged

Testator was highly diabetic patient and also underwent treatment in E.S.I.

Hospital, Ayyanvaram for mental health related issues till 1993. Further,

he was admitted in the Ramachandra Hospital on 12.8.2008 as ulcer in the

left leg became septic and it has been amputated. Hence, he was not in a

position to understand things or aware of the surroundings as he lost the

conscious.

10. It has been further submitted that while the plaintiff has filed

O.S. No.2588 of 2012 on the file of XII Assistant City Civil Court,

Chennai for an injunction to restrain the defendant from interfering with

the peaceful possession of the property, which was dismissed on

10.12.2015 and no appeal has been filed and the decree and Judgment has

become final. Further, the petition was filed after ten years after death of

the mother. No proper reason was adduced for the inordinate delay. In no

uncertain reason terms that the alleged will was a manipulated one.

Further, the 1st witness to the said alleged will dated 14.8.2008 is

plaintiff's father-in-law and the 2nd witness is also relative of his father-in-

law. Hence, the suit is liable to be dismissed with exemplary cost.

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11. On perusal of the records, it is seen that the alleged Will was

said to have been executed on 14.08.2008. The Testator died on

27.08.2008. As per the said Will, the life estate has been vested to the wife

of the Testator and thereafter, his son has every right to enjoy the suit

property. The Wife of the Testator died on 07.05.2009. According to the

evidence of P.W.1, during the execution of the Will, the plaintiff, the

mother of the Plaintiff, wife of the plaintiff, Advocate Kunjammal, P.W.2-

father in law of the plaintiff, and P.W3 one Mr.Munusamy who is also

relative, were present. However, per contra, in the evidence of P.W.2 and

P.W.3 they deposed that when the Will was executed by Mr. Ganesan,

themselves, his Wife and his son were present wherein he would not state

about the presence of the Advocate Kunjammal who is said to have scribed

the said Will. Further, In the cross examination of P.W.1, he deposed about

P.W3, as Munusamy Advocate. However, in the cross examination of

P.W.2, he has not stated about P.W3 is an Advocate and further, P.W.3

would say that he is the distant relative of the Testator and he did not say

about his profession as Advocate. These aspects have not been clarified.

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12. During the evidence of P.W1, it is admitted that his father

was admitted in the hospital on 12.08.2008 and executed the said Will on

the same day in their presence as stated above. As per the Will, it seems to

have stated that the right leg of the Testator has to be amputated due to

severe diabetic. In fact, on consideration of the evidence, it is seen that the

left leg of the Testator was affected to be amputated. At the time of the

execution of the said Will, while reading over the contents of the Will in

the presence of the Testator, it has to be brought to the knowledge of the

said Advocate with regard to the affected leg. This aspect has not been

clarified.

13. Further, it is seen from the records that the Testator was said

to have admitted to the Hospital on 12.08.2008 since his left leg was

seriously affected and became septic due to ulcer. During the deteriorated

condition of his health, the Will was said to have executed by the Testator

after discharging from the Hospital. Under such circumstances, the

plaintiff is bound duty to prove the health condition of the Testator during

the execution of the Will whether he was was in sound state of mind and

good health condition by producing any documentary evidence. Even

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though two attesting witnesses have been examined in this regard, they are

said to be relatives of the Testator and P.W2 is the father-in-law of the

plaintiff, who are the interested witnesses of the plaintiff. Under such

circumstances, the plaintiff failed to take steps to examine any independent

evidence in the Witness Box to prove the sound state of mind and good

health condition of the Testator during the execution of the Will. Further,

he has not produced any medical records regarding the health condition of

the Testator.

14. On perusal of the Will, it is seen that one Kunjammal,

Advocate, has scribed the Will in her own handwriting. However, there is

no address and enrolment no of the Advocate mentioned in the said Will.

It creates suspicion. Under such circumstances, the plaintiff has failed to

take steps to examine the said witness to prove the Will.

15. Whereas the Will was said to have executed in favour of the

plaintiff, the plaintiff denied the division of the property. Per contra, in the

Ex.D1, he deposed as below:

jhth brhj;jpy; tyJ g[wk; fPnH 3 gFjpfSk;. nkny 2 gFjpfSk; cs;sJ/

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,lJ g[wk; fPnH 3 gFjpfSk;. nkny 1 gFjp/ jdpahftk; xU XL tPLk; cs;sJ/ tyJ

g[wj;jpYs;s 3 tPLfSf;F Kjy; gpujpthjp thlif th';fpwhu;.;. ,lJ g[wj;jpy; cs;s 1

tPl;ow;f;F ehd; thlif th';Ffpnwd;;/ tyJ g[wj;jpy; cs;s ,l';fis 1k; gpujpthjpa[k;. ,lJ

g[wj;jpy; cs;s ,lj;ij ehDk; itj;jpUf;fpnwhk;/"

In view of the aforesaid, it is seen that the property is already divided. In

this regard, there is no proper explanation.

16. It is admitted fact from the evidence of P.W1 to P.W3 that

the plaintiff was present at the time of the execution of the Will. He knew

about the Will on 14.08.2008 itself. After the demise of her mother, ie.

07.05.2009, if the Will is genuine, he has to approach before this Court in

the prescribed period of law of limitation. However, the plaintiff has filed

the present suit, in the year 2019 after 10 years of her mother death.

Further,the plaintiff has filed O.S. No.2588 of 2012 without filing the said

O.P. proceedings earlier. The reason for the inordinate delay in the plaint is

not acceptable one. Hence, this Court is of the view that the plaintiff failed

to prove the Will dated 14.08.2008 is valid in law and genuine by way of

oral and documentary evidence. Accordingly, Issue No.1 is answered

against the plaintiff. Since the Issue No.1 is answered against the plaintiff,

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the plaintiff is not entitled to any relief as prayed in the suit. Accordingly,

Issue No.2 is answered.

17. In the result, the TOS is dismissed. No costs.

07..02..2025 Index:Yes/No Web:Yes/No Speaking/Non Speaking lbm

1. List of Witnesses examined on the side of the Plaintiff:-

1. PW.1 – G. Sivasankaran

2. PW.2 - M. Selvaraj

3. PW.3 - K. Munusamy

2. List of Exhibits marked on the side of the Plaintiff:-

1. Ex.P1 -is the unregistered Will marked with subject to objection and proof and relevancy.

2. Ex.P2 is the Death Certificate of V.Ganesan dated 27.08.2008.

3. Ex.P3 is the print out copy of Death Certificate of Mrs. G.Komalavalli dated 07.05.2009 (Affidavit under section 65B Indian Evidence Act is submitted)

4. Ex.P4 is the Legal heir certificate of Ganesan dated 07.10.2011.

5. Ex.P5 is the original Sale Deed in favour of V.Ganesan dated 29.09.1997.

6. Ex.P6 is the Long Term Special Loan Mortgage Deed dated

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07.08.1986.

7. Ex.P7 is the Terms Special Loan Passbook of Mr.V.Ganesan.

8. Ex.P8 is the Terms Special Loan Passbook of Mr.Ganesan and others relating to account number 5620.

9. Ex.P9 is the Form no.2D of Income Tax Act, Saral form with enclosures.

10.Ex.P10 is the Remitters copy of Challan. 13.07.1999.

11.Ex.P11 is the Terms Special Loan Passbook of Mr.Ganesan and others relating to account number 6363.

12.Ex.P12 is the voter list.

13.Ex.P13 is the Medicine Bill and Doctors prescription.

14.Ex.P14 is the property tax collection receipt.

15.Ex.P15 is the Gas receipt.

16.Ex.P16 is the Electricity Bill (series) no.

17.Ex.P17 is the Indian Bank Passbook of Mr.V.Ganesan.

18.Ex.P18 is the certified copy of the cancelled mortgaged deed in the name of plaintiff's father dated 07.03.1994.

19.Ex.P19 is the certified copy of the cancelled mortgaged deed in the name of plaintiff's father dated 30.06.1997.

20.Ex.P20 is the certified copy of the cancelled mortgaged deed in the name of plaintiff's father dated 15.07.1999.

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21.Ex.P21 is the xerox copy of the interview letter issued by the Chennai Corporation to the plaintiff dated27.08.2010. (Subject to proof and relevance).

3. List of Witnesses examined on the side of the Defendants:-