Madras High Court
K.S.Varadharajan vs S.K.Venkatesan .... Caveator / on 24 August, 2022
Author: N. Seshasayee
Bench: N. Seshasayee
T.O.S.No.24 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 01.02.2022
Judgment Pronounced on : 24.08.2022
CORAM : JUSTICE N. SESHASAYEE
T.O.S.No.24 of 2008
K.S.Varadharajan .... Petitioner / Plaintiff
Vs
S.K.Venkatesan .... Caveator / Defendant
Prayer : Petition filed under Section 222 & 276 of the Indian Succession Act,
1925 read with Order XXV Rule 4 of the Original Side Rules, praying that he
may be allowed to prove the Will in common form and that probate thereof to
have effect limited to the State of Tamil Nadu may be granted to the petitioner
and to pass such or other orders as may deem fit and necessary in the
circumstances of the case.
For Plaintiff : Mr.S.Rajendra Kumar
for Mr.G.Ethirajulu
For Defendant : Ms.Vedavallikumar
JUDGMENT
This testamentary suit is laid seeking probate of the last Will and testament of late Dr. S.K.Srinivasan.
1/20 https://www.mhc.tn.gov.in/judis T.O.S.No.24 of 2008 2.1 Dr. S.K.Srinivasan was formerly a faculty in I.I.T., Madras. On 22-11-2000, he executed his last Will and testament as concerning one item of his immovable property and several investments. It is an unregistered Will. He later died on 21-10-2006 leaving behind him surviving his widow Vijayalakshmi, and four sons viz., Ramanujan, Venkatesan (sole defendant), Sridhar and Sudharsanam. Plaintiff is testator's nephew. 2.2 Under his Will, the testator had bequeathed 2/3 share of his properties to one of his sons Ramanujan, and the balance 1/3 to the plaintiff. Both these legatees were also nominated as the Executors under the Will. The testator's estate included one residential building and several investments all of whose value as on the date of testator's demise was estimated at Rs. 51,89,602.35. 2.3 After the demise of the testator, the plaintiff who is one of the legatees and the Executors under the Will, instituted O.P.726 of 2007 for grant of probate. Only the defendant herein (2nd son of testator) entered caveat following which O.P.726 of 2007 was converted into the present suit. His other heirs have given their affidavits in support of probating the Will.
2/20 https://www.mhc.tn.gov.in/judis T.O.S.No.24 of 2008
3. In his written statement, the defendant has pleaded:
● The Will in question is not admitted. The plaintiff is in the habit of forging the testator's signature, and also is given to manipulating records to suit his needs. The Will indeed is a forged one. ● The testator was unwell and was not in a sound state of mental disposition at about the time when the Will was alleged to have been executed. Between 1995 and 2007, the plaintiff along with his mother (sister of the testator) were in charge of cooking, and subjected the testator and his own sisters to slow poisoning. Once the testator became aware of this, he shifted his residence to the first floor of his house and arranged the cooking for him independently. ● The testator had made several investments such as with ICICI Bank, JM Financial Mutual Funds, Standard Chartered Mutual Fund, UTI, Magum Midcap Fund, LIC Mutual Fund, Franklin Templeton Investments, and Reliance Mutual Funds. In all these, the testator has named this defendant as his nominee.
● In the case of investment made by the testator in M/s.Anubhav Plantations Ltd., the plaintiff had forged the testator's signature and taken the cheque issued by the said company. This defendant took up issue 3/20 https://www.mhc.tn.gov.in/judis T.O.S.No.24 of 2008 with the administrators of Anubhav Plantations. ● The plaintiff is engaging in criminal activities and is trying to misappropriate the legitimate amounts due to the defendant. He is squatting on the property and is creating nuisance to the occupants of the first floor, who are his own sisters.
● When according to the plaintiff, the testator had named both the legatees as his Executors, a suit at the instance of one of such Executors is not maintainable. And, mere giving of consent affidavit for grant of probate will not cure the procedural defect in instituting the suit. ● There are litigations in O.S.3556 of 2011 filed against the plaintiff before the City Civil Court by his own sisters, in which the plaintiff was restrained by an interim order of injunction from interfering with the possession of the plaintiffs in that suit. This apart there is another case in M.C.15 of 2011 before the XXII MM Court, Saidapet. In support of his contentions, the learned counsel for the defendant relied on the judgments of the Hon'ble Supreme Court in H.Venkatachala v. B.N.Thimmajamma [1959 AIR SC 443]; Rani Purnima Devi and Another v. 4/20 https://www.mhc.tn.gov.in/judis T.O.S.No.24 of 2008 Kumar Khagendra Narayan Dev and Another [1962 AIR SC 567]; Ramchandra v.Champabai [AIR 1965 SC 354]; Joseph Antony Lazarus (Dead) By Lrs vs. A.J.Francis [(2006) 9 SCC 515]; Bharpur Singh & Ors vs.Shamsher Singh [(2009) 3 SCC 687]; S.P.Chengalvaraya Naidu vs. Jagannath [(1994) 1 SCC 1] and the judgment rendered by High Court of Mysore in Ramaswamy v. Lakshminarasimhan [AIR 1965 Mysore 87] and by this Court on 23.02.19656 in In Re: James Noel Anthony Hobbs Vs. Unknown [AIR 1957 Mad 613].
3.1 On the above pleadings the following issues are framed:
(1) Whether the Will dated 22.11.2000 is genuine? (2) Relief and cost.
3.2 During trial, the plaintiff examined himself as P.W.1. He produced Exts.P-1 to Ext.P-10, of which Ext.P-2 is the Will in question. He also examined both the attestors to the Will as P.W.2 and P.W.3. Turning to the other side, the sole contesting defendant examined himself as D.W.1 and has examined his niece Ms.K.S.Chitra as D.W.2. He produced as many as 61 5/20 https://www.mhc.tn.gov.in/judis T.O.S.No.24 of 2008 documents and they are marked as Exts. D-1 to Ext.D-61. Issue No:2 – On Maintainability of the suit.
4. The proof requiring to establish the genuineness of Ext.P-2 Will apart, the fact remains that the Will has named both the plaintiff and the defendant as the Executors, and the point of objection to the maintainability of the suit is that only the plaintiff has instituted the suit with his co-legatee cum co-Executor passively participating in the proceeding by lending his consent for grant of probate through the latter's affidavit.
5. The learned counsel for the plaintiff submitted that the suit is maintainable as it is permitted under Sec.311 read with Sec.335 of the Indian Succession Act, 1925. These provisions read:
6/20
https://www.mhc.tn.gov.in/judis T.O.S.No.24 of 2008 Section 311 Powers of several executors or administrators exercisable by one:-
When there are several executors or
administrators, the powers of all may, in the
absence of any direction to the contrary, be
exercised by any one of them who has proved the
Will or taken out administration.
Illustations:
i. One of several executors has power to
release a debt due to the deceased.
ii. One has power to surrender a lease.
iii. One has power to sell the property of the deceased whether movable or immovable.
iv. One has power to assent to a legacy v. One has power to endorse a promisory note payable to the deceased.
vi. The Will appoints, A, B,C and D to be executors, and directs that two of them shall be a quorum. No act can be done by a single executor.
Section 335 Assent of executor to his own legacy :-
(1) When the executor or administrator is a legatee, his assent to his own legacy is necessary to complete his title to it, in the same way as it is required when the bequest is to another person, and his assent may, in like manner, be expressed or implied.
(2) Assent shall be implied if in his manner of administering the property he does any act which is referable to his character of legatee and is not referable to his character of executor or administrator.
In the context of the facts of the present case, Ext.P-2 Will nowhere has stipulated that both the administrators should act jointly and not severally. This 7/20 https://www.mhc.tn.gov.in/judis T.O.S.No.24 of 2008 invites Sec.311 of the Act for its application and enables this Court to uphold the maintainability of the suit.
On Proof of Genuineness of the Will:
6. Ext.P-2 Will is dated 22.11.2000 and is an unregistered Will. Now turning to the approach of the defendant, as outlined he comes out with three alternative defences but couched as one supplementing the other. He challenges the genuineness of the Will on the following grounds:
(a) That between 1995 and 2007 the testator was slowly poisoned by the plaintiff;
(b) That the testator was not in his sound state of mental disposition when he executed the Will; and
(c) the Will is forged as the plaintiff is given to forging the signature of the testator.
But each of these pleas in effect are alternate and inconsistent pleas and they may not operate simultaneously. If the Will is forged, then the mental state of the testator will have no relevance. If however, the mental state of testator is made relevant, then the theory of fabrication of the Will should fail, and the factum of execution of the Will would go as an undisputed fact. The poisoning 8/20 https://www.mhc.tn.gov.in/judis T.O.S.No.24 of 2008 theory is only an adjunct fact to support the physical and mental state of the testator at the time of the execution of the Will.
7.1 This is the setting. Now, to prove the Will, the plaintiff examined both P.W.2 and P.W.3, the attestors to the Will. Both of them were the colleagues of the testator at the I.I.T. Madras. Of them P.W.2 introduces him as a student of the the testator who later became a faculty of the IIT, and he claims that he continued to be the friend of the testator till the latter's death. He claims that on the date of execution of the Ext.P-2 Will, the testator had brought the Will to his room, and the Will was executed in his room and narrates the compliance of the statutory requirements for the making of the Will. He also speaks to the presence of P.W.3 then.
7.2 The only line of cross examination was on certain correction made in the affidavit of chief examination of P.W.2 and this correction pertains to the place of execution of the Will, and the room of the testator was corrected to the room of P.W.2. There is no cross examination to the grounds on which the defendant seeks to impugn and impeach the Will.
7.3 The next witness is P.W.3, who also speaks to the execution of the Will. 9/20 https://www.mhc.tn.gov.in/judis T.O.S.No.24 of 2008 The cross examination of this witness is essentially along innocuous lines and the only information it additionally provides is that the testator had retired prior to the date of execution of the Will.
8. It was not even suggested to any of these attesting witnesses, (a) that the purported signature of the testator in the Will was not his, or that the Will was not executed by him; or (b) that the testator was not in sound state of mental disposition etc. Necessarily this Court does not find any material to shake the conscience of this Court to suspect the genuineness of the Will.
9. Turning to the evidence of DW1, he matched his father's academic excellence, having graduated from the IIT, Madras, and had prosecuted his studies further. In his testimony he states that he believed that the plaintiff and his mother had performed voodoo practices (a combination of sorcery and spirits within the genus of black magic) on his father. Here the nature of cross examination especially the language employed both by the counsel and the witness deserved to be reproduced as it is a rarity to find something such as this:
Q : You do agree that you are a very highly qualified person having a Doctorate degree?
10/20 https://www.mhc.tn.gov.in/judis T.O.S.No.24 of 2008 A: Yes Q : But strangely you have stated in Ex.D48 about voodoo practices and you have ascribed the reason for your father's death due to such practices?
A: Yes. Witness adds:- These practices are followed by my cousin brother Varadarajan and his mother. Although my domain of knowledge is in Engineering and Physics, the impact of these practices on patient has not been studied by Western Medicine sufficiently. Q : So you have ventured to conclude without any empirical data about a para psychological practices despite being a highly qualified person of science?
A: All primitive witch craft are forerunners to science and some of it still remain unexplored.
Q : In Ex.D50 and D51, you are not the party to the suit? A: I am surprised to see that my name is not there. The plaintiff's sister's name figure.
Moving further to the allegation of slow poisoning, the line of cross examination is worthy of reproduction as they are as below:
Q : Is there any document to show that you have exhibited such concern by alerting them as to the imminent danger? A: Yes. There is an E-mail communication which I have sent to my father and I have also informed several years back about slow 11/20 https://www.mhc.tn.gov.in/judis T.O.S.No.24 of 2008 poisoning to N.Ram and his wife.
Q : But obviously such e-mail communication has not been exhibited here?
A: Yes. As it is generally believed that these are unscientific allegations and these facts have been overlooked by academicians, that is N.Ram and my father.
Q : So knowing full well about the non-secquitur of these allegations that they are non-secquitur and yet you have chosen to drop them in your written statement?
A: There are circumstantial evidences to substantiate the claim and these facts can be further investigated.
Q : What circumstantial evidences as you claim now have been cited either in your pleading or in your deposition? A: The medical condition of my father is already crucial evidence available in this case. Apart from this, my cousin sisters have suffered considerable health disorders and I myself also have suffered from chronic disorders.
Q : As a scientist you know that there is nothing called toxin and only its dosage determines its toxicity?
A: Not, not all toxins have potential cut off values and some toxins are known to be clearly carcinogenic.12/20
https://www.mhc.tn.gov.in/judis T.O.S.No.24 of 2008 Q : Have you established any link between the toxins said to have been administered to your father and the cause of death of your father?
A: As I mentioned earlier the scientific dogma underestimated the capacity for native medicine to do harm.
Q: The answer is laconic, could you please expatitate? A: Investigations on native medicine (like Kerala folk medicine) have not reached sufficient scrutiny in scientific circles and these medicines and their studies are now becoming more and more acceptable. In any case, science proceeds from evidence to dogma.
Q: Has your father been subjected to any medical examination at your instance to prove the factum of he being administered the alleged poison?
A: No, I mentioned this possibility to both the Doctor and to N.Ram about investigating this as a case for genetic modification leading to cancer using native medicine which may also open up a new subject in science. When Professor David Baltimore a famous Nobel Laureate American Scientist was visiting our office at that time I suggested that this case be investigated for discovering a new carcinogenic agent. However, it was turned down by the dogma of western scienticism a well known antagonism towards native medical knowledge.
Q: But a dogma remains a dogma regardless of evidence?13/20
https://www.mhc.tn.gov.in/judis T.O.S.No.24 of 2008 A: Dogma is actually massive evidence masquerading contextual exceptions and further development and investigation.
Q: From the above answer you have uttered now, there is nothing concluded because you employ the word masquerading which is something appearing so and there is something inconclusive about the definition dogma?
A: It is the dogma that is causing impediment for collecting evidence and substantiating the allegations.
Q: So the net result is your allegation is unsubstantiated? A: Yes, but all new research start from such as small beginning. Moving forward the testimony taken entirely leaves out the allegation of forgery and fabrication of the Will.
10. Turning to the plaintiffs evidence, he has produced P-7 and P-8 to establish that after the execution of the Will, the testator had organised a seminar on and also had written a book, which the contesting defendant admits in his cross examination. This would show that there is nothing to suspect the mental state of the testator when he executed Ext.P-2 Will some three years prior to that.
11. Taking the evidence as has been explained above together, this Court hardly finds anything to suspect the Will. Here it may be mentioned that even the 14/20 https://www.mhc.tn.gov.in/judis T.O.S.No.24 of 2008 defendant admits that between 1995 and 2007, the plaintiff and his mother were cooking food for his father. With his theory of black magic and slow poisoning now have been reduced to defendant's fears and beliefs, what this fact proves is that the plaintiff indeed had been helping the testator. Therefore, it is possible that the testator might have granted the plaintiff a share in his estate. Here it is significant to note that this defendant has no grievance against S.K.Ramanujam the eldest son of testator getting 2/3 share under the same Will. And, this also goes against the challenge to the Will.
12. To conclude this Court finds that Ext.P-2 Will, dated 22.11.2000 executed by late Mr.S.K.Srinivasan and attested by P.W.2, Mr.A.Avudainayagam and P.W.3, Mr.A.Rangan is genuine, and the Will has been proved, and the same is hereby probated. Accordingly, the testamentary original suit is decreed. There shall be no order as to costs.
24.08.2022 Index : Yes / No Speaking order / Non-speaking order ds 15/20 https://www.mhc.tn.gov.in/judis T.O.S.No.24 of 2008 APPENDIX I. Witnesses :
Plaintiffs :
P.W.1 K.S.Varadharajan (Plaintiff)
P.W.2 A.Avudainayagam
P.W.3 A.Rangan
Defendants :
D.W.1 S.K.Venkatesan (Defendant)
D.W.2 K.S.Chitra
II. Exhibits :
Ext.P1 27.10.2006 Original Death Certificate of the testator Mr.S.K.Srinivasan
Ext.P2 22.11.2000 Will executed by testator Mr.S.K.Srinivasan
Ext.P3 23.07.2007 Affidavit of assets
Ext.P4 13.02.2007 Certified copy of Legal Heirship Certificate of
Mr.S.K.Srinivasan
Ext.P5 *** ****
Ext.P6 Souvenir on Seminar on Point Porcesses and Product
Densities (SPP-2003)
Ext.P7 Official version of Seminar Proceedings
Ext.P8 Book on Point Processes and Product Densities
Ext.P9 16.10.2000 Cancelled cheque in original bearing No.395905 issued in
favour of Revenue Officer, Corporation of Chennai, drawn of M/s.Chennai Central Co-operative Bank Ltd., West Mambalam Branch, Chennai-33.
Ext.P10 22.10.2006 Original copy of burial ground receipt Defendants :
Ext.D1 03.06.2007 Cetified copy of petition in OP.No.726 of 2007 Ext.D2 03.06.2007 Amended copy of TOS served on the defendant Ext.D3 08.03.2012 Order in Comp.Appln.No.788 of 2011 16/20 https://www.mhc.tn.gov.in/judis T.O.S.No.24 of 2008 Ext.D4 22.08.1979 Sale Deed executed in favour of late S.K.Srinivasan Ext.D5 Certified copy of police complaint given by Chithra series Ext.D6 20.04.2011 Certified Copy of the plaint filed in O.S.No.3556 of 2011 Ext.D7 18.08.2011 Copy of the written statement filed in O.S.No.3556 of 2011 Ext.D8 04.08.2014 Certified copy of the order in M.C.No.15 of 2011 Ext.D9 15.06.2011 Xerox copy of the legal notice issued by the defendant Ext.D10 28.06.2007 Xerox copy of the legal notice issued to the plaintiff counsel Ext.D11 26.03.2008 Xerox copy of the letter adressed to the Administrator, Anubhav Group of Companies by the defendant Ext.D12 25.02.2009 Xerox copy of the letter adressed to the Administrator, Anubhav Group of Companies by the plaintiff Ext.D13 Challan of Anubhav Group of Companies series Ext.D14 14.04.2007 Letter addressed to Mr.S.K.Srinivasan by the Administrator, Anubhav Group of Comapnies Ext.D15 21.11.2011 Notice given by defendant's advocate in C.A.No.788/2011 Ext.D16 24.06.2003 Letter addressed to the Administrator, Anubhav Group of Comapnies by the testator Mr.S.K.Srinivasan Ext.D17 20.02.2007 Proof Affidavit of attesting witness Mr.A.Rangan, filed in OP.No.726/2007 Ext.D18 Certified copy of Ration Card issued to Mr.S.K.Srinivasan Ext.D19 Certified copy of Passport of defendant - Mr.S.K.Venkatesan Ext.D20 Certified copy of Bank Passbook of Mr.S.K.Venkatesan Ext.D21 04.08.1983 Letter sent by National University of Singapore to Mr.S.K.Srinivasan Ext.D22 15.11.1990 LIC Life Pension Policy of S.K.Srinivasan nominating Mr.S.K.Venkatesan as first nominee Ext.D23 04.10.1992 LIC Life Pension Policy of S.K.Srinivasan nominating Mr.S.K.Ramanujam as first nominee Ext.D24 20.06.1995 Share holdings of Mr.S.K.Srinivasan in Southern Green Fields Limited Ext.D25 School Record of defendant's son Ext.D26 Certified copy of Voters ID of Ms.Hemalatha 17/20 https://www.mhc.tn.gov.in/judis T.O.S.No.24 of 2008 Ext.D27 Original copy of Statement of Account of Mr.S.K.Srinivasan series in UTI Mutual Fund Ext.D28 27.02.2004 Letter by CAMS Investor Service Centre nominating Mr.S.K.Venkatesan for Mr.S.K.Srinivasan Ext.D29 Accounts Statement of Mr.S.K.Srinivasan in M/s.Sundaram series Mutual Ext.D30 21.09.2005 Account Statement of Mr.S.K.Srinivasan in Reliance Mutual Fund Ext.D31 Emails and letters series Ext.D32 31.03.2006 Account STatement of Mr.S.K.Srinivasan in Reliance Mutual Fund Ext.D33 23.05.2006 Statement of Account of Mr.S.K.Srinivasan in ABI Mutual Fund Ext.D34 2006-2007 Statement of Account in M/s.Punjab National Bank - Joint Account by Mr.S.K.Srinivasan and Mr.S.K.Venkatesan Ext.D35 List of seurities and investments series (11 Nos.) series Ext.D36 24.04.2007 Letter from Mr.S.K.Srinivasan to M/s.Anubhav Group of Companies & Finance Firms Ext.D37 15.10.2007 Legal Heirship Certificate Ext.D38 25.01.2008 Letter addressed to Mr.S.K.Srinivasan by CAMS providing dividend details Ext.D39 31.03.2008 Account Statement of Mr.S.K.Srinivasan in JM Financial Mutual Fund Ext.D40 04.06.2008 Letter addressed to the plaintiff by Reliance Mutual Fund with a copy marked to defendant.
Ext.D41 09.06.2008 Letter addressed to the plaintiff by HDFC Mutual Fund with a copy marked to defendant Ext.D42 04.08.2008 Hospital O.P. chits of Mr.S.K.Venkatesan series Ext.D43 11.08.2010 Petition filed under Section 301 Cr.P.C. before XXIII Metropolitan Magistrate at Saidapet, Chennai. Ext.D44 26.02.2011 Letter from the defendant's Advocate addressed to the Administrator, Anubhav Group of Companies 18/20 https://www.mhc.tn.gov.in/judis T.O.S.No.24 of 2008 Ext.D45 05.03.2011 Reply letter given by the counsel for Anubhav Group of Companies Ext.D46 30.06.2011 Statement of Accounts of Mr.S.K.Srinivasan in M/s.ICICI Bank Ext.D47 11.07.2011 Copy of petition affidavit in CA.No.788 of 2011 filed before High Court of Madras by Mr.S.K.Venkatesan Ext.D48 16.06.2013 Letter addressed to The Assistant Commissioner of Police, Saidapet, Chennai by Mr.S.K.Venkatesan Ext.D49 30.09.2013 Statement of Accounts of Mr.S.K.Srinivasan in M/s.ICICI Bank Ext.D50 29.10.2013 Certified copy of decree in O.S.No.3556 of 2011 Ext.D51 29.10.2013 Certified copy of judgment in O.S.No.3556 of 2011 Ext.D52 07.11.2016 Investment Details of Mr.S.K.Srinivasan in M/s.LIC Mutual Fund Ext.D53 03.08.1982 Letter sent by the testator to defendant's cousin, Ms.Chitra Ext.D54 05.07.2018 Letter given by M/s.Punjab National Bank certifying series Mr.S.K.Venkatesan to operate the bank accoun and statement of accounts Ext.D55 Photocopy of Passbook of S.K.Venkatesan in M/s.C.C.Bank Ext.D56 Photocopy of Pass Book of Mr.S.K.Venkatesan in M/s.State Bank of India, IIT, Madras-36 Ext.D57 12.04.2007 Letter addressed to Mr.S.K.Venkatesan regarding transmission of investment to his name by CAMS Ext.D58 04.10.2004 Receipt for payment of Rs.60,000/- made to the joint account of Mr.S.K.Srinivasan and Mr.S.K.Venkatesan in Post Office Saving Account Ext.D59 13.10.1997 Medical Report of Ms.Chitra Ext.D60 Web Article Ext.D61 Photographs 24.08.2022 19/20 https://www.mhc.tn.gov.in/judis T.O.S.No.24 of 2008 N.SESHASAYEE.J., ds Pre-delivery Judgment in T.O.S.No.24 of 2008 24.08.2022 20/20 https://www.mhc.tn.gov.in/judis