Madras High Court
T. Sarveswara Rao vs T. Sathyanarayana And Ors. on 8 July, 2002
Equivalent citations: AIR2002MAD487, AIR 2002 MADRAS 487
Author: M. Chockalingam
Bench: M. Chockalingam
ORDER M. Chockalingam, J.
1. This suit has been filed by the plaintiff for granting Letters of Administration in respect of the Will of Kutumba Sastri executed on 1-8-1990.
2. The plaint averments are as follows :
The plaintiff is the son of Tadimeti Kutumba Sastri and the said Kutumba Sastri died in Madras on 28-2-1992. Kutumba Sastri at the time of his death left property in Madras giving a life interest to his wife T. Seetha Sundari and on her death, to the plaintiff absolutely. The said Seetha Sundari died in Rajamundri on 29-1-1993 whereupon the property devolved on the plaintiff in accordance with the Will, absolutely. The said Will is the last Will and Testament of Tadimeti Kutumba Sastri and was executed in Nagercoil on 1-8-1990. Nobody was appointed as Executor of the Will and the plaintiff as the universal legatee under the Will in respect of the property mentioned in the Will after the life estate granted to the plaintiffs mother, on her death, as the son of the testator seeks to obtain Letters of Administration. The net amount of the said assets, after deducting all items which the plaintiff is by law allowed to deduct is only of the value of Rs. 2,60,000/-. T. Seetha Sundari had already paid a sum of Rs. 50,000/- to the Viswa Hindu Parishad as stipulated by the Testator and the balance of Rs. 50,000/- could not be paid since Viswa Hindu Parishad had been banned. He undertakes to make a full and true inventory thereof and exhibit the same in this Court within 6 months from the date of the grant of letters of Administration with the Will annexed to the plaintiff. Hence, the plaintiff prays for granting Letters of Administration with the Will.
3. The averments in the written statement filed by the 2nd defendant are as follows :
The onus is on the plaintiff to prove that the Testator had executed the Will which is the subject matter of this proceeding. Kutumba Sastri had duly executed a Will at Madras on 28-2-1992 and in terms thereof the earlier Will of 1-8-1990 purportedly executed by the Testator was cancelled and the properties of the testator were bequeathed to his wife T. Sita Suridari. In the aforesaid Will, it was recited that the sons of the testator may be considered equally in so far as the sharing of the estate of the testator is concerned. The testator had died on 28-2-1992 and subsequent to his death his wife to whom, the testator bequeathed all his property both movable and immovable also expired on 29-1-1993. Subsequent to her death disputes arose amongst the legal heirs of the deceased testator in regard to the sharing of his assets and a family arrangement was entered on 3-6-1993 and the legal heirs of the testator were signatories to the above stated Deed of Family Arrangement. The defendant understands that in terms of the Will which is the subject matter of this proceeding, the testator's share in the partnership firm under the name and style of M/s. East Coast Structurals is allegedly bequeathed to the plaintiff and that the other sons and daughters of the testator were not entitled to a claim in the said partnership firm. The defendant submitted that at the pain of reiteration, that in the teeth of the fact that the testator had executed a Will on 28-2-1992 in terms of which the earlier Will dated 1-8-1990 was cancelled, any grant made under the earlier Will dated 1-8-1990 in regard to the assets relating to the partnership firm in favour of the plaintiff herein would under law be deemed to be abrogated and as a sequel thereto, the plaintiff cannot be permitted to claim an absolute and in exclusive right of ownership over the above mentioned property and as a consequence thereof all the legal heirs of the testator would be entitled to claim a share from the testator's share in the assets of the firm in equal measure.
Since the plaintiff did not produce the records pertaining to the partnership firm to ascertain the contents of the said documents, the Honourable Court may direct the plaintiff to produce the entire records relating to the partnership firm M/s East Coast Structurals to determine the entitle ments of the legal heirs of the deceased testator in the assets of the aforesaid partnership firm. The Will dated 1-8-1990 should have been executed by the testator when he was not in a sound and disposing state of mind and in any event the earlier Will dated 1-8-1990 was superseded by the execution of the Will dated 28-2-1992 by the testator. For the reasons stated above, the suit has got to be dismissed.
4. The averments in the written statement filed by the 4th defendant on her own behalf and on behalf of defendants 5 to 7 are as follows :
The 4th defendant's father-in-law, during his lifetime, had executed a Will dated 28-2-1992 in which he had clearly stated that the Will executed by him on 1-8-1990 to be void. The earlier Will was made under coercion and undue influence and also when he was not in a sound and disposing state of mind. The beneficiary therein was a son who had been already given in adoption and also to the exclusion of other sons and daughters with whom he had no ill-will. Recognising that all the sons and daughters are to be considered equally late Tadimeti Kutumba Sastri made his second Will dated 28-2-1992 leaving his entire properties to his wife with an intention and desire that she distributes the property equally amongst all her children. T. Sita Sundari died intestate on 29-1-1993 and there was a meeting of all legal heirs of the said late T. Sita Sundari on 3-6-1993 wherein it was agreed by the plaintiff that he would pay equally to all his sisters and brothers the proportionate market value of the residential flat at AG-36, Shanthi Colony, Annanagar, Chennai-40. However, he wanted a year time for the payment and a family arrangement was entered into on the same date. The late Kudumba Sastri was a partner in M/s East Coast Structurals. As the legal heirs of late Kudumba Sastri and Sita Sundari, the defendants are entitled to share in the assets of the said firm and the plaintiff, may be directed to produce the records of the said firm in order to determine the rights and interests of all the legal heirs. Hence, the suit has got to be dismissed with costs.
5. On the above pleadings by the respective sides, the following issues were framed :
1. Whether the suit is maintainable in law on the fact that the Will dated 1-8-1990 which is the subject matter in this proceeding was cancelled by the testator in terms of his subsequent Will dated 28-2-1992?
2. Whether in the execution of the Will dated 28-2-1992 by the testator the earlier Will dated 1-8-1990 was rendered non est in law?
3. Whether the recognition of the subsequent Will dated 28-2-1992 by the plaintiff in the family arrangement dated 3-6-1993 to which he was a signatory would render the suit not maintainable in law ?
4. Whether the legal heirs of the deceased testator are entitled to a share in equal measure in the assets of the partnership firm M/s East Coast Structurals and the other assets of the testator?
5. Whether the execution of the subsequent Will dated 28-2-1992 by the testator would abrogate the grant made in favour of the plaintiff in the earlier Will dated 1-8-1990 in regard to (he partnership firm M/s. East Coast Structurals ?
6. Whether the earlier Will dated 1-8-1990 was executed by the testator in a sound and disposing state of mind?
7. Whether the earlier Will dated 1-8-1990 purported to have been executed by the testator was superseded by the execution of the subsequent Will dated 28-2-1992?
6. ISSUES 1 TO 7 :
The plaintiff has come forward with a request to issue letters of administration alleging that his father Tadimeti Kutumba Sastri executed his last Will and testament in a sound and disposing state of mind on 1-8-1990 at Nagercoil in the presence of two attesting witnesses. The second defendant has contested the same by stating that the plaintiff has lo strictly prove by adducing positive evidence that the testator had executed a Will on 1-8-1990 that the testator has executed a Will on 28-2-1992 at Madras and thereby he has cancelled the earlier Will dated 1-8-1990 the subject matter of the present suit; that the earlier Will dated 1-8-1990 has become non est in law, and the suit is not maintainable, and apart from that, there was a family arrangement entered into between the parties on 3-6-1993, to which the plaintiff was also a party, and hence, under the circumstances and in view of the same also, the request of the plaintiff has got to be refused. The defendants 4 to 7 have raised their objection by stating that the subject matter of the proceedings viz. the Will dated 1-8-1990 was made by the testator under coercion and undue influence and also when he was not in a sound and disposing state of mind and health; and that in view of the Will executed by Kutumba Sastri on 28-2-1992 and the family arrangement that was entered into between the parties, including the plaintiff on 3-6-1993, no relief can be granted on the basis of the alleged Will dated 1-8-1990.
7. On the side of the plaintiff, P.Ws. 1 and 2 were examined, and Exs. P1 to P6 were marked. On the side of the defendants, D. Ws. 1 and 2 were examined, and Exs. D1 to D6 were marked.
8. Arguing for the plaintiff, the learned counsel would submit that the testator Kutumba Sastri in a sound and disposing state of mind has executed Ex. P1 Will at, Nagercoil. wherein he has given life interest to his wife Seetha Sundari, and on her death, he has given the property to the plaintiff absolutely; that Kutumba Sastri died on 28-2-1992; that subsequent to the death of Kutumba Sastri, his wife, who was in enjoyment of the property, also died on 29-1-1993; that the plaintiff has produced the Will of Kutumba Sastri, which is marked as Ex. P1; that the execution and attestation of the document are proved through the evidence of PW2 one of the attesting witnesses and as required by law; that the second defendant has not raised any doubt or suspicion over the truth or genuineness of Ex. P1 Will; that since the defendants 4 to 7 have raised the defence stating that the Will has come into existence by the coercion and undue influence exercised over the Kutumba Sastri by the plaintiff, a duty is cast upon them to prove the same, but they have failed to do so; that in the absence of any proof, the said defence cannot be accepted. Added further the learned counsel that so far as the Will alleged to have been executed by Kutumba Sastri on 28-2-1992 is concerned, though the same is produced in court, it should not be marked because it remained unprobated, and the same cannot be looked into for any purposes, and hence the defendant's contention that the Will of Kutumba Sastri under Ex. P1 was revoked by the subsequent Will dated 28-2-1992 has to be rejected, and the further contention of the defendants that there was a family arrangement between the parties on 6-3-1992; that the plaintiff had also participated in the arrangement, and he has also signed in the said document; and that the Will of Kutumba Sastri dated 28-2-1992 was also referred to in the said family arrangement cannot be considered by the Court for the reasons that the original of the family arrangement was not placed by the defendants; that the Xerox copy of the said family arrangement marked as Ex. D5 cannot be looked into for any purposes for the simple reason that it was not a registered one, and hence, in view of the alleged Will dated 28-2-1992 or the family arrangement dated 3-6-1993. the relief sought for in respect of Ex. P1 Will cannot be denied. In support of his contention, the learned counsel relied on the following decisions; 1) 1997 (1) Mad LW 49; (2) 2000 (1) Mad LW 236 (Sic) (3) 2001 (1) CTC 112.
9. Countering to the above contentions of the plaintiffs side, the learned counsel for the second defendant would urge that the plaintiff has not strictly proved Ex. P1 Will as required by law; that Kutumba Sastri died on 28-2-1992; that the second defendant examined as D. W. 1 who came over to Madras from Delhi on 29-2-1992, came to know about the Will executed by her father on 28-2-1992; that the same was attested by the brother, the first defendant Sathyanarayana and her mother Seetha Sundari; that a copy of the said Will was distributed to all the members of the family; that the original Will was sent by the first defendant to the second defendant by registered post; that by executing the second Will on 28-2-1992, the Will alleged to have been executed by Kutumba Sastri on 1-8-1990 was revoked and superseded, and in law, the Will in respect of which the relief is sought for, is non est, and only on that ground the suit has got to be dismissed; that the Will executed by Kutumba Sastri on 28-2-1992 has been filed by the second defendant in this proceedings, but the same could not be marked in view of the objections raised by the plaintiffs side; that there is no inhibition or prohibition In law to look into the said document; that the plaintiff was about to initiate proceedings under the Will dated 28-2-1992; that the first defendant has also given a consent affidavit under Ex.
D4 for grant of letters of administration in respect of the Will dated 28-2-1992; that the plaintiff has originally filed O.P. No. 574 of 1994 in 1994 itself, and under such circumstances, the second defendant was constrained to await the disposal of the pending proceedings in order to initiate and take separate proceedings on the basis of the Will dated 28-2-1992; that apart from the same, all the family members entered into a family arrangement on 3-6-1993; that the first defendant is in possession of the original family arrangement; that despite notices, he has not produced the same, and hence a Xerox copy of the family arrangement filed by the second defendant has been marked as Ex. D5 that it is pertinent to note that the plaintiff was also a party to the family arrangement, and the said fact was also admitted by the plaintiff; that a perusal of the family arrangement would clearly indicate that Kutumba Sastri has executed a Will on 28-2-1992, and under such circumstances, the contention of the plaintiff that Kutumba Sastri did not execute any Will on 28-2-1992 revoking the earlier Will has got to be rejected : that the family arrangement entered into between the parties would be binding on all the parties including the plaintiff, and hence, in view of the same, the request of the plaintiff has got to be denied. In support of his contention, the learned counsel relied on a decision of this Court reported in AIR 1921 Madras 532 (2).
10. The learned counsel appearing for the defendants 4 to 7 inter alia would submit that the 4th defendant is the wife of one Radhakrishnan, the third son of late Kutumba Sastri, and defendants 5 to 7 are their children; that from the evidence of the fourth defendant, it would be clear that she was acquainted to Kutumba Sastri and all the family members even prior to her marriage in 1973; that at the time of the marriage, her husband was employed as an Engineer in the Army, and subsequently he was transferred from place to place all over India over every three years; that they used to visit Madras every year and stay here for two months; that during the said period, the husband of the 4th defendant used to go to East Coast Structurals company and assist her father-in-law; that since the plaintiff was not good in education and was also jobless, Kutumba Sastri started a company by name East coast Structurals; that after coming to know the illness of his son, Kutumba Sastri advised him that after undergoing the bye pass surgery he should go down to Madras and permanently stay there; that he further assured him that he would give his share in the company and himself and his brother could run the company; that Kutumba Sastri who was equally affectionate to all the members of the family could not have executed a Will as found under Ex. P1; that since the business was started and carried on by Kutumba Sastri, there was no need for any dissolution of the same as found under Ex. P2; that the fourth defendant was visiting her father-in-law now and then, and he did not inform her about any will in question; that Kutumba Sastri executed a Will on 28-2-1992; that there was a meeting of all the family members at Madras on 3-6-1993; that all the children of Kutumba Sastri attended the meeting; that from the evidence of DWs 1 and 2, it would be clear that all the members decided to share the properties based on the second Will among themselves; that the same was reduced into writing by way of family arrangement as evidenced by Ex. D5; that a copy of Ex. D5 family arrangement was given to the fourth defendant also; that it has to be taken into consideration that the share of the fourth defendant and her children in the fixed deposits was given to them in October 1993 by the first defendant by way of cheque and similarly the gold ornaments of the mother-in-law were distributed among them, and thus, the family arrangement entered into between all the members of the family was actually acted upon, and hence, in view of the Will executed by Kutumba Sastri on 28-2-1992 and the family arrangement entered into by all the parties on 3-6-1993, the plaintiff cannot seek the relief of letters of administration based on the alleged Will dated 1-8-1990 under Ex. P1, and therefore, the suit has got to be dismissed.
11. Concededly the testator Kutumba Sastri who died on. 28-2-1992, was a diploma holder in mechanical engineering and was employed as an Engineer in E. I. D. Parry, Chennai and retired from service in 1975. He was a member of Visva Hindu Parishad and devoting himself for social service after retirement. The said Kutumba Sastri and his wife Seetha Sundari had five children viz. Sathyanarayanan, Bhawani, the defendants 1 and 2, Sarveswara Rao, the plaintiff, Radhakrishnan and Saradha, the third defendant. The third son of Kutumba Sastri by name Radhakrishnan predeceased his parents on 11-2-1991 leaving behind him his widow, the fourth defendant and the children defendants 6 and 7. During his lifetime, Kutumba Sastri and the plaintiff were running a small Scale industry at Ambattur Industrial Estate named East coast Structurals, a partnership firm. The testator purchased a flat with an extent of 850 sq. ft. at AG 36, Shanthi Colony, Anna Nagar, from the Tamil Nadu Housing Board, by way of allotment in the year 1971, and the sale deed was executed in his favour in the year 1982. The first defendant got married in 1961, while the second defendant got married in the year 1959. The third defendant Saradha got married in 1967. The plaintiff got married in 1971, while the marriage of Radhakrishnan took place in the year 1973. Kutumba Sastri performed the marriages of his both daughters viz. Bhawani and Saradha. After their marriages. Bhawani settled in New Delhi, and Saradha settled in Rajamandri. The first defendant who was working in Neyveli Lignite Corporation was shifted to National Productivity Council, Madras, and thereafter, he was transferred to Guntur in Andhra Pradesh. He left for gulf country, where he attained superannuation, and later he settled at Hyderabad. The third son of Kutumba Sastri Radhakrishnan was working in the Defence Department in Pune and living with his family, and due to his ailment, he died in February 1991 at the All India Institute of Medical Sciences, Delhi. The wife of Kutumba Sastri died on 29-1-1993. The plaintiff is residing in the house property situated at As 36, Shanthi Colony, Anna Nagar, Madras.
12. The plaintiff has come forward with the request seeking grant of letters of administration alleging that his father Kutumba Sastri executed Ex. P1 Will on 1-8-1990 in a sound and disposing state of mind and health. The prime defence of the contesting defendants is that Kutumba Sastri executed a Will on 28-2-1992 wherein he has revoked his earlier Will, and thus, Ex. P1 Will has been superseded by a subsequent Will of Kutumba Sastri dated 28-2-1992, and hence, no relief can be granted under a superseded and revoked Ex. P1 Will. The defendants 4 to 7 stated that Ex. P1 Will has come into existence under coercion and undue influence exercised by the plaintiff over the testator. The testament in respect of which letters of administration is asked for is marked as Ex. P1 dated 1-8-1990. At the outset, it has to be pointed out that contesting defendants have not disputed the signature of Kutumba Sastri in Ex. P1 Will. The specific case of the plaintiff is that during the relevant period, Kutumba Sastri was in Viswa Hindu Parishad, staying at Nagercoil with his wife and looking after the construct ion of the Hindu Vidhyaiaya School at Nagercoil, which facts are not disputed by the defendants. It is not the case of the plaintiff that he was ever present at Nagercoil at the time of preparation, execution, etc., or registration of Ex. P1 document. There is no material placed by the contesting defendants to show that the plaintiff was at Nagercoil during the relevant period. Neither D.W.1 nor D.W.2 examined on the side of the defendants has deposed that the propounder of the document was at Nagercoil during the relevant period. Thus, there is nothing to indicate that the plaintiff had any role to play in the preparation, execution, etc., or registration of Ex. P1 document.
13. One of the attesting witness to Ex. P1 testament examined as P.W. 2 has categorically deposed that he was a native of Nagercoil; that he is presently employed as an Accountant in Hindu Vidyalaya Administrative Office, Nagercoil; that he joined the said School in February 1989: that he became acquainted with Kutumba Sastri, when he was assisting his uncle in his work as a contractor for the construction of the school building at Nagercoil; that Sastri was residing in the ground floor of the premises bearing No. 49, East Car Street, Nagercoil 1; that himself and Maria Antony signed in Ex. P3 deed of power of attorney as attesting witnesses; that Ex. P1 is the Will executed by T.K. Sasthri; that in Ex. P1 document himself and Maria Antony signed as attesting witnesses; that prior to their signatures, the testator signed in Ex. P1 Will in their presence; that the testator was also present, when they were attesting the document; that they subscribed their signature on 1-8-1990 at No. 49, East Car Street, Nagercoil 1; that one Asir who typed the document was also present at the time of the execution of Ex. P1 Will; that both Exs. P1 and P3 were registered in the office of the Sub-Registrar at Nagercoil on 3-8-1990; that he was present at that time; that at the time of execution of Ex. P1 Will, the testator's mental disposition was very good: and that Ex. P5 is the affidavit submitted by him stating that he was present at the time of execution of Ex. P1 Will. From the evidence of the said attesting witness, it would be abundantly clear that Ex. P1 document was executed by Kutumba Sastri on 1-8-1990 at No. 49, East Car Street, Nagercoil 1 where the testator was residing; and that PW2, the other attesting witness Maria Antony and John Asir who typed the document, were present at the time of execution of the document, and they attested the document in the presence of the testator on 1-8-1990, and at the time of registration of the document on 3-8-1990 both the attesting witnesses were present. It is pertinent to note that PW2 was employed in Hindu Vidyalaya run by Viswa Hindu Parishad, and it was the testator who secured him a job. From the evidence of PW2 it would be quite evident that the executant worked in the office on the day till afternoon, when he executed the document, and he was in a sound and disposing state of mind. It remains to be stated that the testator has also executed Ex. P3 Power of Attorney on 31-7-1990 in which both the attesting witnesses under Ex. P1 Will have subscribed their signatures as attesting witnesses. The evidence adduced by the propounder through PW2 as stated above would clearly reveal that Kutumba Sastri in a sound and disposing state of mind has executed Ex. P1 Will on 1-8-1990 and has taken care to get it registered on 3-8-1990. Though only one attesting witness is examined, the evidence of the said witness is not only convincing and acceptable, but also inspires the confidence of the Court. The contesting defendants are unable to show any reason or circumstance to disbelieve or discredit the evidence of PW2. Therefore, without any hesitation it can be found that the propounder has proved the truth and genuineness of the document. Though it is contended by the fourth defendant that the document has come into existence by exercising coercion and undue influence over Kutumba Sastri, there is no evidence placed by the 4th defendant in that regard. It is well settled proposition of law that a duty is cast upon the defendant to prove the existence of the alleged coercion and undue influence. But the 4th defendant has miserably failed to prove the same. In short, it can be stated that not even one doubtful or suspicious circumstance is shown surrounding the execution of Ex. P1 testament, and thus, there is no difficulty in holding that Ex. P1 testament is a true and genuine document, which has come into existence as put forth the by the propounded
14. The prime defence of the contesting defendants seems to be that Kutumba Sastri executed a Will on 28-2-1992, by which he has revoked his earlier Will under Ex. P1, and hence, Ex. P1 Will is non est in law. According to DWs 1 and 2, Kutumba Sastri executed the second will on 28-2-1992 on which date he died. The request of the defendants is that the said Will executed by Kutumba Sastri on 28-2-1992 was filed by the second defendant who was in custody of the said document, and the same has got to be look into, which would lead the court to come to the irresistible conclusion that Kutumba Sastri executed a Will on 28-2-1982. The Court is afraid whether it can accept such a plea, in the absence of the alleged Will of Kutumba Sastri dated 28-2-1992 is marked in evidence. In respect of the said Will alleged to have been executed by Kutumba Sastri on 28-2-1992, the second defendant who has been admittedly in custody of the same all along, has not initiated any proceedings based on the said Will. The contention of the defendants that the plaintiff initiated this probate proceedings even in the year 1994, and hence, the second defendant was constrained to await the result of the proceedings cannot be countenanced. An affidavit of the first defendant is filed as Ex. D4. According to the defendant's side, Ex. D4 was given by the first defendant to the second defendant for initiation of the probate proceedings in respect of the Will of Kutumba Sastri dated 28-2-1992. The contents of the said affidavit would not be suffice to hold that Kutumba Sastri executed a Will on 28-2-1992 or the will under Ex. P1 was revoked thereby. However, in respect of the alleged Will of Kutumba Sastri dated 28-2-1992, neither proceedings have been initiated for probate nor it has been probated.
15. A Division Bench of this Court in a case reported in 1997 (1) Mad LW 49 (M. Vaidurayamma v. P. Suryanarayanan) has held thus:
"The Supreme Court had occasion to consider a similar question and the same is reported in AIR 1962 SC 147. (Mrs. Bas Holini Judge, since deceased and after her, legal representative Mrs. Hom Nolini Judah Wilkinson v. Mrs. Isolyne Sarojbashini Bose wherein their Lordships .accepted the principle laid down in AIR 1927 Madras 1054 : 26 LW 697 (Full Bench) (cited supra} and relying on the said decision, their Lordships held thus :--
"Section 213 creates a bar to the establishment of any right under Will by an executor or a legatee unless probate or letters of administration of the Will have been obtained, whether that right is claimed by the person as a plaintiff or defendant; AIR 1927 Mad 1054 : 26 Mad LW 697 relied on".
The words of Section 213 are not restricted only to those causes where the claim is made by a person directly claiming as a legatee. The Section does not say that no person can claim as legatee or as an executor unless he obtains probate or letters of administration of the Will under which he claims. What it says Is that no right as an executor or legatee can be established in any Court of Justice, unless probate or letters of administration have been obtained of the Will under which the right is claimed, and therefore it is immaterial who wishes to establish the right as a legatee or an executor Whosoever wished to establish that right, whether it be a legatee or an executor himself or some body else who might find it necessary in order to establish his right to establish the right of some legatee or executor from whom he might have derived title, he cannot do so unless the Will under which the right as a legatee or executor is claimed has resulted in the grant of a probate or letters of administration.
A, claiming as legatee under a Will of which she had obtained letters of administration filed a suit for declaration of her title in regard to a property included in the Will, she sought to establish that the ownership of that property vested in her testator as legatee under a Will executed in favour of her testator by another person. No probate or letters of administration had however been obtained in regard to that Will.
Held, that Section 213 barred A from establishing the right of her testator as legatee under the alleged Will as no probate or letters of administration had been obtained."
In view of the above decision, the Court is of the view that the contesting defend-ants cannot be permitted to place their defence stating that Kutumba Sastry executed another Will dated 28-2-1992 wherein he has revoked the earlier Will as found under' Ex. P1.
16. The next contention that was raised by the contesting defendants is that after the death of Seetha Sundari, the wife of Kutumba Sastri, the members of the family entered into a family arrangement on 3-6-1993, to which arrangement, the plaintiff was also a party; that the Will of Kutumba Sastri dated 28-2-1992 was also referred to therein, and under such circumstances, the said family arrangement as found under Ex. D5 would be binding on the plaintiff, and that in view of the same also, the plaintiff, and that in view of the same also, the plaintiff is not entitled for the relief of letters of administration as asked for. What is placed in the hands of this court is only a xerox copy of the said family arrangement dated 3-6-1993 under Ex. D5. the objection raised by the plaintiff is that it was only a Xerox copy of the said document; that according to the witnesses, the said arrangement was entered into for the purpose of division of the immovable properties left by their mother Seetha Sundari, and hence it required registration, and even if the original document is produced, it is not admissible in evidence. From the pleadings and the evidence adduced by the defendants' side, it would be clear that the said family arrangement was entered into between the parties on 3-6-1993 in order to make division of both movable and immovable properties then existed and left by their parents. Thus, it is evident that the said document would, no doubt require registration, and in the absence of registration, even the original of the same is inadmissible in evidence. Hence, the defendants cannot raise their defence on an unregistered document, though it is styled as family arrangement.
17. It has to be specifically observed that the scope of the testamentary proceedings in question is limited only to the extent of the truth, genuineness and validity of the testament and the grant of letters of administration in respect of Ex. P1 Will and not at all to decide the title or ownership of the properties in question. The Court is of the considered view that it is unable to consider the defence putforth by the defendants in this testamentary proceeding, in view of the fact that the alleged Will dated 28-2-1992 remains unprobated, and the family arrangement under Ex. D5 remains unregistered. In view of the same, the issue numbers 3, 4, 5 and 7 do not arise for consideration. So far as the grant of letters of administration in respect of Ex. P1 Will which is the subject matter under challenge, is concerned, the court finds no legal impediment in granting the relief. The Apex court in a decision (Gurdial Kaur v. Kartar Kaur), has held thus:
"The law is well settled that the conscience of the court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925, but it should also be found that the said Will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will. Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the Will to dispel suspicious circumstance."
Following the above test given by the Hon'ble Supreme Court, it has to be held that the propounder of the Will has satisfied the conscience of the Court. In view of the reasons stated above, it has to be found that the suit is maintainable in law; and that the earlier Will dated 1-8-1990 was executed by the testator in a sound and disposing state of mind, but It cannot be found the Will dated 1-8-1990 is rendered non est in law. Therefore, the plaintiff is entitled to the grant of letters of administration, as asked for. All the above issues are answered accordingly.
18. In the result, this suit is decreed. Issue letters of administration in favour of the plaintiff. He should render a true and proper account within a period of one year. He should also execute a security bond for a sum of Rs. 25,000/- in favour of the Assistant Registrar (O.S. II), High Court, Madras. There shall be no order as to the costs. Consequently, Application Nos. 4483 and 4484/02 are closed.