Madras High Court
Mr.B.Raja (Deceased) vs Mrs. S. Periyanayagi on 22 January, 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.01.2025
CORAM:
THE HON`BLE MR.JUSTICE A.A.NAKKIRAN
TOS.No.22 of 2014
in
(OP.No.159 of 2014)
1.Mr.B.Raja (deceased)
2.Arokiyamary,
3.Pappa,
4.Sagayamary ... Plaintiffs
..Vs...
1. Mrs. S. Periyanayagi
2. Mrs. Arockiam @ Arockia Mary
3. Ms. Pappammal,
4. Mrs.Mery ... Defendants
Prayer: Testamentary Original Suit filed under Sections 232 and 276 of the
Indian Succession Act XXXIX of 1925 for the grant of Letters of
Administration. As per order of this court dated 04.07.2014 in O.P.No.159
of 2014, the Original Petition has been converted into Testamentary
Original Suit No.22 of 2014.
1/15
https://www.mhc.tn.gov.in/judis
For Plaintiff : Mr. T.N. Murali Moghan
For Defendants : Mr.T.S. Baskaran
(for Mr.R.Muthukumar)
****
JUDGMENT
The Testamentary Original Suit is filed for issuance of letters of
Administration with the will annexed to be granted to him as the
grandson/beneficiary of the deceased having effect throughout the State of
Tamilnadu.
2. The brief facts of the case of the plaintiff are as follows:
a) The Testatrix Mrs. Lurthumari got marriage with
Mr.Susainathan and out of their wedlock two sons and two daughters were
born. They are (1) Balu, (2) Doss, (3) Pappa and (4) S.Periyanayagi. The
above said Papa died at the age of 8 years long back and Doss also died
unmarried long back. The petitioner is the grandson of Testatrix through her
son Mr.Balu. The petitioner's father looked after the Testatrix initially and
after demise of petitioner's father Mr.Balu on 11.4.1988, the mother of the
petitioner namely Mrs.Arockiam @ Mrs.Arockia Mary looked after the
https://www.mhc.tn.gov.in/judis
Testatrix till her death. The husband of the Testatrix namely Mr.Susainathan
predeceased her long back and parents of the Testatrix also predeceased her
long back.
b) Mrs.Lurthumari, the Testatrix of the WILL died at her age of 75
years at No.127, Kottai Street, M.G.R. Nagar, Kottaikuppam, Pazhaverkadu,
Ponneri Taluk, Tiruvallur District on 14.3.2002, where she ordinarily
resided and within the State of Tamil Nadu and within the jurisdiction of
this Hon'ble High Court. The petitioner herein and his family members
performed the last rites and ceremonies at their cost to the Testatrix.
c). The Testatrix was the absolute owner of the land and
building situates at Old No.34, New No.65, New Amarajipuram, (As per
Corporation property Tax Assessment Amaravathy Puram), Kasimedu,
Royapuram, Chennai-600 013, which is morefully described in the Schedule
of Property hereunder lying within the territorial jurisdiction of this Hon'ble
Court and within the limit of Corporation of Chennai.
https://www.mhc.tn.gov.in/judis
d).During her lifetime, the Testatrix executed a registered Will
with respect to her above said property bequeathing above said property in
favour of the petitioner. The writing hereunto annexed now shown to the
petitioner and marked with a Letter-A, is the Last Will and Testament of
late Mrs. Lurthumari, it was truly executed by her at Ponneri on 21.11.1994
and registered before the Sub-Registrar's Office at Ponneri as Document
No.68/1994 on the same day in the presence of the witnesses (1)
Mr.S.Joseph, and (2) Mr.M.Selvam, whose names appear at the foot of the
Will and in the document before the Sub- Registrar's Office, Ponneri. at the
time of execution of Will, the petitioner was aged about 13 years and he had
no knowledge about the execution of Will. The petitioner's mother Mrs.
Arockiam @ Arockia Mary being an illiterate lady also not aware the value
of Will and not disclosed the same to the petitioner. Only during the month
of June 2013, when cleaning the house to dispose unwanted things, the
petitioner found the Will and files this petition as early as possible. Hence,
there is a delay in filing this petition and delay is neither willful nor wanton.
The Testatrix of the Will did not appoint any Executor for the Will.
https://www.mhc.tn.gov.in/judis
e). The value of the assets which are likely to come to the
petitioner 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
petitioner is by law allowed to deduct is only of the value of Rs.2,80,000/-.
No application has been made to any District Court or Delegate or to any
other Court for Probate of the Will of the said deceased Mrs. Lurthumari or
Letters of Administration with or without the Will annexed of her property
and credits.
f). The petitioner hereby undertakes to duly administer the property
and credits of the said deceased Mrs.Lurthumari and in any way concerning
her Will by paying first her debts and then the legacies herein bequeathed so
far, as the assets will extend and 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 Hon'ble Court a true account of the said property and
credits within one year from the said date. Thus, he prays to allow this suit
for the above stated reliefs.
https://www.mhc.tn.gov.in/judis
3. In the written statement, the 1st defendant had stated as
follows:
a) The 1st defendant deny the Will dated 21.11.1994 registered
as Document No.68 of 1994 executed by her deceased mother Lurthumari
and the alleged Will is a forgery and created document. From the year 1993
onward her mother was bedridden and she was suffered by mouth cancer,
hence she was not in good health, not in sane and sound mind and
disposition, and also not in the position to execute any Will and the left
hand thumb impression of the Testatrix in the alleged Will is not identical
with her mother Lurthumari left hand thumb impression.
b). Lurthumari had not executed any Will during her life time
as alleged by the Plaintiff and the same is forgery document created by him.
Lurthumari was an illiterate and she had not executed any Will. She was not
an absolute owner of the schedule mentioned property. The 1st Defendant is
in the absolute possession and enjoyment of the property. The suit schedule
property originally belonging to Collector of chennai and 40 years back, she
occupied the suit schedule property and put up the superstructure on her
https://www.mhc.tn.gov.in/judis
own cost and assessed the property tax in her name and regularly paid
property tax in her name. Further, the Plaintiff has filed the petition after a
lapse of 12 years after the demise of the deceased without assigning any
valid reasons and the above delay itself indicative of the fraud. Hence, they
pray for dismissal of the suit with exemplary cost.
4. On the pleadings of the parties and hearing the learned
counsel appearing for both sides, the following issues were framed for
determination:-
1.“Whether the Will dated 21.11.1994 said to have been
executed by late Lurthumary is true and valid?
2.Whether the Testator was in sound and disposing state
of mind on the date of execution of the Will?
3. To what other reliefs the parties are entitled?
5.On the side of the Plaintiff, Ex.P1 to Ex.P15 were marked and
PW.1 to P.W.4 were examined. On the side of the Defendants, Ex.D1 was
marked and DW.1 and D.W.2 were examined.
6.Heard both sides and perused the materials available on record.
https://www.mhc.tn.gov.in/judis
Issue Nos.1 to 3:
7. The learned counsel for the plaintiff submits that the
Testatrix was the absolute owner of the land and building situates at Old
No.34, New No.65, New Amarajipuram, (As per Corporation property Tax
Assessment Amaravathy Puram), Kasimedu, Royapuram, Chennai-600 013.
During her lifetime with the sound disposing state of mind, the Testatrix
executed a registered Will with respect to her above said property
bequeathing above said property in favour of the petitioner in the presence
of the witnesses (1) Mr.S.Joseph, and (2) Mr.M.Selvam, whose names
appear at the foot of the Will.
8.It has been further submitted that in order to prove the Will
dated 21.11.1991 executed by the Testatrix, the 1st attesting witness ie.
S.Joseph was examined since other witnesses were said to have been died.
The thump impression of the testatrix on the Will has been proved by one of
the attesting witness PW2 in his Proof Affidavit. Hence, he prays to grant
letter of Administration in favour of the plaintiff.
https://www.mhc.tn.gov.in/judis
9.The learned counsel for the 1st defendant submits that
Lurthumari being the mother of the 1st defendant had not executed any Will
during her life time as alleged by the Plaintiff and the same is forgery
document created by him. Lurthumari was an illiterate and she had not
executed any Will. She was not an absolute owner of the schedule
mentioned property.
10. It has been further submitted that the 1st Defendant is in the
absolute possession and enjoyment of the property. The suit schedule
property originally belonging to Collector of chennai and 40 years back, she
occupied the suit schedule property and put up the superstructure on her
own cost and assessed the property tax in her name and regularly paid
property tax in her name. Further, the Plaintiff has filed the petition after a
lapse of 12 years after the demise of the deceased without assigning any
valid reasons and the above delay itself indicative of the fraud. Hence, the
suit is liable to be dismissed with exemplary cost.
https://www.mhc.tn.gov.in/judis
11. On perusal of the records, it is seen that the alleged Will
was said to have been executed on 21.11.1994 and the Testatrix died on
14.03.2002. According to the evidence of P.W.1, the said Will was found
after one year of the death of Testatrix. ie. In the year 2003. However, the
Plaintiff has stated in the plaint and proof affidavit that during the month of
June 2013, he found the Will during cleaning the house and disposing
unwanted things. It is contrary to his statement comparing with his
pleadings. Further, the plaintiff has filed the O.P in the year 2014 even
though the Will was said to have found in the year 2003. The proper reasons
for filing of the O.P. belatedly have not been explained by the plaintiff to
convince the Court.
12. In the evidence of P.W.1, on the question of attesting
witnesses, he has stated the name of 2nd Attesting Witnesse as Selvaraj while
the name of the 2nd attesting witness in the Will is shown as Selvam. It is
contrary comparing with the said Will. Further, while one of the attesting
witness Antony Raj put his left thump impression in the alleged Will, the
https://www.mhc.tn.gov.in/judis
plaintiff has not whispered anything about him in the plaint and in his proof
affidavit. Further, in the evidence of P.W.2, who is one of the attesting
witnesses states that Selvam and Anthony put their signatures at Registrar
office while the said Anthony raj put his left thump impression in the Will
and on another question, P.W.2 answered that Selvam signed and Anthony
put his thump impression. It creates suspicion. Further, P.W2 has not
whispered as to whether the contents of the Will have been read out and
explained to the Testatrix or not as she was an illiterate.
13.On perusal of the Will, it is seen that none of attesting
witnesses have mentioned their father name and address while putting their
signature in the Will. Further, even though it is seen in the Will that the
Document was prepared by one A. Janakiraman, Advocate Ponneri, where
there is no mentioned about Enrollment and address of the said Advocate. In
the plaint also, the plaintiff and P.W.2 have not whispered anything about
the Advocate who has prepared the said Will. Hence, it creates suspicion.
Thus, the plaintiff is bound to clear the aforesaid suspicious circumstances
in the execution of the Will. However, the plaintiff failed to prove the same
https://www.mhc.tn.gov.in/judis
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, the plaintiff is not entitled to any relief as prayed in the suit.
Accordingly, Issue No.2 is answered. While the Issue No.1 and 3 are
answered against the plaintiff, Issue No.2 does not arise.
14. In the result, the TOS is dismissed. No costs.
22.01.2025
Index:Yes/No
Web:Yes/No
Speaking/Non Speaking
Lbm
List of Witnesses Examined on the side of the Plaintiff:-
P.W.1- Mr.B.Raja
P.W.2- Mr.S.Joseph
P.W.3- Mr.S. Suresh
P.W.4- Mr.R. Shivasankar
List of Witnesses Examined on the side of the Defendants:-
D.W.1-S. Periyanayagi
D.W.2-N. Govindaraj
List of Exhibits Marked on the side of the Plaintiff:-
Sl.No. Exhibits Description of documents
1. Ex.P1 The original Death certificate of Mr.Balu dated 11.04.1988.
https://www.mhc.tn.gov.in/judis
Sl.No. Exhibits Description of documents
2. Ex.P2 The original Will executed by Testator in favour of plaintiff in
document No.68/1994 dated 21.11.1994. [in Safe Custody]
3. Ex.P3 The original Death certificate of Lurthumary dated 14.03.2002.
4. Ex.P4 The original legal heir certificate of Balu dated 24.08.2004.
5. Ex.P5 The original affidavit of attesting witness of S.Joeseph dated
30.10.2013.
6. Ex.P6 The original consent affidavit of 2nd defendant dated
30.10.2013.
7. Ex.P7 The original consent affidavit of 3rd defendant dated 30.10.2013.
8. Ex.P8 The original consent affidavit of 4th defendant dated 30.10.2013.
9. Ex.P9 The original affidavit of petitioner/form of valuation of estate
dated 30.10.2013.
10. Ex.P10 The Receipt for Property Tax of suit property dated 10.02.1980.
11. Ex.P11 The office copy of legal notice issued by plaintiff dated
03.03.2015.
12 Ex.P12 The Reply notice issued by 1" defendant dated 16.03.2015.
13 Ex.P13 The photocopy of Aadhar card of S.Joseph.(Original produced
compared, verified and returned to the counsel.)
14 Ex.P14 The computerized receipt from 1993 along with the covering
letter dated 12.04.2022.
15 Ex.P15 Burial certificate of Lurdu Merry, Property tax demand card and
(Series) tax receipt. Which were given to us by the party at that time of
changing the name in EB connection, and order of name change.
List of Exhibits Marked on the side of the Defendants:-
Sl.No. Exhibits Description of documents
1 Ex.D1 The attested copy of Town survey extract for RS.No.3619.
https://www.mhc.tn.gov.in/judis
22.01.2025
Lbm
A.A.NAKKIRAN,J.
lbm
in
(OP.No.159 of 2014)
https://www.mhc.tn.gov.in/judis
22.01.2025
https://www.mhc.tn.gov.in/judis
