Madras High Court
N. Jothibai vs T. Jayaseelí on 6 March, 2025
TOS.No.47 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.03.2025
CORAM:
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
T.O.S.No.47 of 2008
(O.P No. 824 of 2006)
N. Jothibai, ... Plaintiff
..Vs..
1.T. Jayaseelí,(Deceased)
2.S. Raju ... Defendants
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 S.
Thangaraj. Against this petition, a Caveat and supporting affidavit was
filed by the Caveator on 29.08.2008. As per order of this Court on
02.12.2008 in the Original Petition No.824 of 2006, it was converted into
Testamentary Original Suit No.47 of 2008.
For Plaintiff : Mr.G.S. Sivakumar
For Defendants : Mr. S. Kamadevan for D2
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TOS.No.47 of 2008
JUDGMENT
This Testamentary Original Suit has been filed to grant of Letters of
Administration, dated 04.11.1994, executed by the deceased Testator
S. Thangaraj, in favour of the Plaintiff, having effect throughout the State
of Tamil Nadu.
2.The case of the Plaintiff, as set out, in the plaint is as follows:-
(i). The last Will and Testament of the said S. Thangaraj, was
duly executed by him at No.113, Ring Road, DAE Township, Kalpakkam,
Pudupattinam, on 04.11.1994 where he was residing and registered at the
office of the Sub Registrar, Thirukazhikundram on 04.11.1994 and died on
the 09.04.1995 at D.A.E. Hospital, Kalpakkam, then Chengleput District,
Tamilnadu. The deceased Thangaraj had two wives and a daughter and an
adoptive daughter. The first Respondent Jayaseeli is the second wife of the
deceased. The second respondent Indrani is the first wife of the deceased
Thangaraj. The petitioner N. Jothibai is the daughter of the deceased
Thangaraj through his first wife Indrani. The third respondent is the
adoptive daughter of the first respondent. The petitioner and the
respondents alone as his sole surveying legal heirs and that all of them have
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been made as parties to this petition. The parents of the deceased have
predeceased him.
(ii)That the said deceased at the time of death left the property
in the city of Chennai particularly Tamilnadu Slum Clearance Board plot
with construction bearing No.68, 7th Street, Kamaraj Colony,
Kodambakkarn, Chennai 600 024, and in the state of Tamil Nadu within
the jurisdiction of this Honourable Court. The first attesting witness at the
foot of the Will is Mr. G. Jayaraman, son of Govindasamy, residing at
No.71, 11th Avenue, Kalpakkam- 603 102. The Affidavit of the above
named G. Jayaraman the first attesting witness is filed herewith. The
deceased Thangaraj even during his life time entrusted with the petitioner
herein possession of the land and superstructure bearing No.68, 7th Street,
Kamaraj Colony, Kodambakkam, Chennai-600 024 which is only property
mentioned in the above Will. The deceased also entrusted with the
petitioner all the relevant document of title pertaining to the above
property. For the past 11 years and more, the petitioner is in possession of
the property along with her family members and the second respondent,
without any objection or obstruction from any one as a sole and absolute
owner. She performed the last rites of the deceased Thangaraj. The
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petitioner made known to all, about the present Will on the 10th day death
ceremonies of the testator. Mr. Thangaraj was living with the petitioner
continuously for more than 10 years till his demise. The petitioner was put
in possession of the property by her father the deceased Thangaraj and that
she was living there without any problem by any one and possessing the
same as absolute owner till date.
(iii) It is further submitted that by the said Will the deceased
appointed no executor. While the petitioner has applied with the Tamilnadu
Slum Clearance Board for effecting name change in the statutory records,
the petitioner was asked by the legal advisors to get the Letters of
Administration of the said Will. So the petitioner has filed the petition for
proving the Will and for grant of Letters of Administration of the said Will.
The delay in applying for the Letters of Administration is not intentional.
(iv) The amount of asset which is likely to come to the
petitioner's hands does not exceed in the aggregate the sum of Rs.63,200/-
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.60,200/-.
The petitioner hereby undertakes to duly administer the property and
credits of the said S. Thangaraj deceased and in any way concerning his
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Will by paying first his 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 the
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.
(v)That no application has been made, to any District Court or
Delegate or to any other High Court for probate of any Will of the said
deceased or Letters of Administration with or without the Will annexed to
this property and credits. Thus, the petitioner prays that Letters of
Administration with the Will annexed may be granted to her as the Sole
Beneficiary/legatee under the Will of the said deceased.
3.The case of the 2nd Defendant, in a nutshell, as set out in the
written statement, is as follows:
(i) This defendant purchased the suit property under a
registered sale deed dated 03/06/2008 from the first defendant as she got
property pursuant to the sale deed executed by the Tamilnadu Slum
Clearance Board dated 03/05/2006. The defendant came to understand
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from the records handed over to him by the first defendant at the time of
the sale that originally the suit property was a vacant land allotted by the
Tamilnadu Slum Clearance Board to one Thangaraj, husband of the
defendant's vendor who was working as driver in the Corporation of
Chennai and he retired from service on 30/06/1985. While he was working
at Corporation of Chennai, the Tamilnadu Slum Clearance Board allotted a
plot to him which is the suit property. It was only an allotment with a
condition to pay the cost of the plot on equal instalments and therefore the
said allotment will not confer any absolute right or title to the allottee till
the title is conferred or sale deed is executed by the Tamilnadu Slum
Clearance Board.
ii) It was only an allotment by the Board and no sale deed was
executed in favour Thangaraj till his death. The said Thangaraj died on
09/04/1995 and after his death, the plaintiff herein and one Indirani
objected the settlement of family pension and other benefits payable by the
Corporation of Chennai payable to the deceased in favour of the first
defendant. Thereafter, in the legal battle on various cases, the first
defendant was declared as the legally wedded wife and sole legal heir of
the deceased and the claim and status of the plaintiff and her mother
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Tmt.Indirani was rejected. Hence they cannot claim any right or
whatsoever in the suit property through the deceased Thangaraj as his wife
and daughter.
iii) Thereafter, the Slum Clearance Board effected name transfer in
favour of first defendant in respect of the suit property in the proceedings
dated 28/09/2005. After the name transfer was made in favour of the first
defendant, the Board did not execute the sale deed in her favour. Hence,
she filed writ petition before this court in WP.No.108 of 2006 and this
court by order dated 27/01/2006 directed the Board to execute the sale deed
and thereafter only a registered sale deed was executed by the Slum
Clearance Board on 03/05/2006 in her favour.
iv) Thereafter, as the plaintiff was in illegal occupation of the
land in question, after a long legal battle, the title and possession of the
property is legally recognised and settled in favour of this defendant.
Hence, the plaintiff has no right or legal claim over the suit property and
the alleged "Will" could not confer any right to the plaintiff to maintain the
suit. Above all, the said Thanagarj was not all the owner of the property
and it was only an allotment till his death. After his death only the first
defendant paid the balance amount and got the sale deed executed in her
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favour thereby transfer of interest and right made by the Slum Clearance
Board. Further, the plaintiff and her mother made false claim as if they are
the wife and daughter of the deceased Thangaraj and the same was
disbelieved by the court and held against them in the earlier two suits and
the same was also confirmed by this court. It was categorically held that
her mother Indiranri got married one Thangaduri and not the Thangaraj and
therefore, the alleged will do not confer any right in favour of the plaintiff
in as much as she is the daughter of Thangadurai. Hence, he seeks to
dismiss the suit 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 last Will and Testament dated 04.11.1994
executed by the Testator S.Thangaraj in favour of the plaintiff is
valid and genuine?
2. Whether the deceased Thangaraj was having any valid
title and he was the absolute owner of the property on the date of the
execution of the Will?
3. Whether the plaintiff can claim herself as the daughter of
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the deceased Thangaraj in view of the earlier suit proceedings in
O.S.No.10180 of 1996 and the findings rendered in S.A.No. 1704 of
2004?
4. Whether the judgment and decree passed by the City Civil
Court, Chennai in O.S.No. 9095 of 2010 is binding the plaintiff as
she is also party to the said proceedings?
5. Whether the 1st defendant Ms.Jayaseeli (Deceased) had
lost the right on the subject property of the Will, in view of the
judgment and decree made in OMS.No.17 of 1987, dated 23.09.1987
by the High Court, Madras, under which, Ms.Jayaseeli (Deceased)
obtained divorce against S.Thangaraj, her husband, the Testator of
Will dated 04.11.1994?
6. Whether the plaintiff has proved the Will alleged to have
been executed in terms of Section 63 of the Indian Succession Act?.
7.To what other relief both the parties are entitled to?
5. On the side of the Plaintiff, P.W1 and PW2 were examined.
Ex.P1 to Ex.P4 were marked. On the side of the Defendants, D.W1 was
examined and Ex.D1 to Ex.D16 were marked.
6. Heard both sides and perused the materials available on
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record.
Issue No.1:
7.The learned counsel for the plaintiff submitted that the
Testator, the plaintiff's father who was the absolute owner of the suit
schedule property, executed the Will in sound and disposing state of mind
and in full consciousness in the presence of two witnesses in favour of the
plaintiff on 04.11.1994. The same was registered before the concerned
SRO on the same day. After the demise of the Testator, the plaintiff found
the Will and filed the present suit.
8.It has been further submitted that the plaintiff has produced the
Original Will dated 04.11.1994 along with other supporting documents
before this Court and one of the attesting witnesses was examined as P.W2
to prove the Will. Hence, he seeks to grant the Letters of Administration in
favour of the plaintiff.
9.The learned counsel for the 2nd defendant submitted that the
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plaintiff is not at all the daughter of the Testator but born to her mother
Indrani with who got marriage one Thangadurai and they had separate
family and other children through the said marriage. It is evident on seeing
the Judgments in various cases filed by the plaintiff, her mother and the 1st
defendant who is the original owner of the suit schedule property. Vide
Ex.D1 to Ex.D7. The 2nd defendant has purchased the suit property from
the 1st defendant. Vide Ex.D7. The plaintiff and her mother have no right
in the suit property.
10.It has been further submitted that as the defendant's title and
possession was recognized by the court of law in which the plaintiff is also
a party, he sold the property under a registered sale deed in favour of one
Karthik (DW-1) and another on 30/12/2019. After their purchase, they
applied for planning/building permission before the Greater Corporation of
Chennai and also obtained necessary permission for the construction of
residential building. On the strength of the same, they have completed the
construction and also occupied the same. The property is now assessed
with property tax, Metro water and EB connections are now stand in the
name of the DW-1 (Ex-B-11, Ex-14, Ex-15& Ex-16). Hence, there is no
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question of granting Letter of Administration in favour of the plaintiff and
the suit is liable to be dismissed with exemplary costs.
11. On perusal of the plaint averment, it is seen that the Testator
one S.Thangaraj executed the Will on 04.11.1994 and he died on
09.04.1995. The present suit was filed in the year 2006 after a lapse of 12
years. In the plaint averments, the reason for belated filing of the present
suit has not been mentioned and merely it has been stated that the plaintiff
found the Will after the demise of the Testator and filed the present suit
without any explanation and reasons therein.
12. Further, the plaintiff claims the suit property based on the
Will as daughter of the Testator stating two witnesses have subscribed their
signature in the Will. However, the plaintiff has averred only first attesting
witnesses mentioning his name as G.Jayaraman S/o. Govindasamy and
there is no whisper anything about the 2nd attesting witness in the plaint.
Whereas, on the plaintiff's side, the first attesting Witness by name G.
Jayaraman was not examined, instead one Mr. Desingu was examined as
P.W2 as the 2nd attesting witness to the Will. The reasons for not examining
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the first attesting witness, has not been clarified. Further, on seeing the
Will, even though there is initial as N.M. in the signature, before the name
of the 2nd attesting witness, the name of the 2nd attesting witness could not
be found clearly. Whereas, one Mr.Desingu was examined as P.W2 as 2 nd
attesting witness and he signed in his proof affidavit without initial of M
and while comparing his signature found in his proof affidavit, along with
the Will, there is quite difference. In this regard, the plaintiff has not taken
any steps to prove the signature of P.W2 in both Proof Affidavit and the
Will, is one and the same.
13. On perusal of the deposition of P.W1, it is seen that to the
question as to whether she knew the attesting witnesses of the Will, she
answered that she did not know. While the plaintiff has not stated any thing
about the Two attesting witnesses, how she came to know one Mr.Desingu
as the 2nd attesting witnesses to the said Will. It has not been clarified.
Further, she admitted herself in the cross examination that she is not in
possession of the suit property at the time of the death of Thangaraj and
thereafter and she did not know about who were in possession of the suit
property. Further, she did not whisper anything about who has prepared the
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Will and she did not chose them for examination to prove the said Will.
She did not depose anything about whether the alleged Will was read over
to the Testator and signed in the presence of both witnesses and the
Testator saw other Attesting Witnesses who signed the Will.
14. On perusal of the deposition of P.W2, it is seen that even
though PW2 has averred in his proof affidavit about the 1st attesting witness
by name Mr.Jayaraman, he did not mention anything about him and his
whereabouts. Further, in the cross examination to the question of who
prepare the Will, PW2 answered that he did not remember and he did not
know. Subsequently, it has been asked that whether the Will was
handwritten or typed one? P.W2 answered that it is handwritten one.
However, the alleged Will is typed one and not in handwritten. It is not
clarified.
15. Further, it can be seen on perusal of the Ex.D1, the suit
schedule property was sold out to the 2nd defendant by the 1st defendant and
subsequently, D.W1 has purchased the said property from the 2nd
defendant. Although the 2nd defendant was the party in the suit, he was not
examined and D.W1 was examined. In this case, D.W.1 has deposed that
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he is in the possession and enjoyment of the suit property after mutation of
his name in all statutory documents.
16.In view of the above, this Court is of the considered view that
the plaintiff has not proved alleged Will whether the Last Will and
Testament dated 04.11.1994 executed by the Testator S.Thangaraj in her
favour is valid and genuine and hence, the plaintiff is not entitled for letter
of administration. Accordingly Issue No.1 and 7 are answered. Since issue
No.1 and 7 are answered against the plaintiff, other issues do not arise.
17.In the result, the TOS is dismissed. No costs.
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List of Witnesses examined on the side of the Plaintiff/s:-
1. PW.1 – Mrs. N.Jothibai
2. PW.2 - Mr.Desingu
1. List of Exhibits marked on the side of the Plaintiff:-
1. Ex.P1 -is the original Will dated 04.11.1994. (In Safe Custody)
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2. Ex.P2 is the true copy of death certificate of S.Thangaraj dated
19.05.1995.
3. Ex.P3 is the legal heir certificate dated 31.08.2001.
4. Ex.P4 is the online printout copy of death certificate of
G.Jayaraman dated 10.10.2021. (certificate 65B submitted)
2. List of Witnesses examined on the side of the Defendant/s:-
DW1 – Mr. J.Karthik
3. List of Exhibits marked on the side of the Defendants:-
1. Ex.D1 is Judgment and Decree copy in O.S. 10180 of of 1996 on
the filed of city civil court is marked as Ex.D1 and Ex.D2.
2. Ex.D2 is Judgment and Decree copy in O.S. 10180 of of 1996 on
the filed of city civil court is marked as Ex.D1 and Ex.D2.
3. Ex.D3 is the Copy of Judgment passed in the Second Appeal
4. Ex.D4 is the photocopy of proceedings of the slum clearance board
dated 28.09.2005.
5. Ex.D5 is the photocopy of order in Writ Petition No. 108 of 2006
dated 27.01.2006.
6. Ex.D6 is the photocopy of judgment in O.S.No.5279/2006 dated
20.12.2007.
7. Ex.D7 is the photocopy of sale deed dated 03.06.2008 by D1
(deceased) to D2.
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8. Ex.D8 is the photocopy of judgment in O.S.No.9095/2010 dated
07.01.2015.
9. Ex.D9 is the photocopy of judgment in A.S.No. 86/2015 dated
29.11.2016.
10.Ex.D10 is the photocopy of order in E.P.No. 1362/2015 dated
29.11.2018.
11.Ex.D11 is the photocopy of property tax card and online copy of
property tax receipt dated 25.03.2024.
12.Ex.D12 is the photocopy of plaint in O.S.No. 2982 of 2021 filed by
the plaintiff against DW1 and another.
13.Ex.D13 is the certified copy of judgment in O.S.No.2982/2024
dated 29.01.2024.
14.Ex.D14 is the online copy of the encumbrance certificate reflecting
sale by 2nd defendant dated 17.07.2024. (Affidavit under Section
65 B of the Indian Evidence Act filed and recorded)
15.Ex.D15 is the online copy of metro water tax receipt dated
31.03.2023. (Affidavit under Section 65 B of the Indian Evidence
Act filed and recorded)
A.A.NAKKIRAN, J.
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16. Ex.D16 is the online copy of TNEB payment receipt dated
06.06.2024. (Affidavit under Section 65 B of the Indian Evidence
Act filed and recorded)
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