Madras High Court
L.Anusuya vs L.Gopinathaan on 27 July, 2022
Author: A.A.Nakkiran
Bench: A.A.Nakkiran
TOS.No.60 of 2013 and
CS.No.825 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 15.07.2022
PRONOUNCED ON : 27.07.2022
CORAM:
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
TOS.No.60 of 2013 and
Tr.CS.No.825 of 2014
L.Anusuya Plaintiff -TOS
1st Defendant-CS
Vs
1. L.Gopinathaan Defendant -TOS &
Plaintiff-CS
2. L.Vijayaprakash by his Power Agent Sumathi
3. Shanthi
4. M.Sumathi
5. L.Ganthimathi Defendants 2 to 5-CS
Prayer:- This Testamentary Original Suit has been filed, under Sections 232 and
276 of the Indian Succession Act, for the reliefs, as stated therein. This Tr.CS
has been filed under Order VII Rule 1 of CPC, for the reliefs, as stated therein.
For Plaintiff : Mr.G.R.M.Palaniappan-TOS
For Defendant : Mr.G.Thangavel-TOS
COMMON JUDGEMENT
1. This Testamentary Original Suit has been filed to grant Letters of
Administration, with the Will annexed, to the Plaintiff, as the wife of the
deceased and legatee under the Will of the deceased, having effect limited to
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the State of Tamil Nadu.
2. This Tr.CS has been filed for permanent injunction, restraining the Defendants
from causing interference with the peaceful possession and enjoyment of the
Plaintiff's half share of the suit property.
3. The case of the Plaintiff in TOS is that the Plaintiff is the wife of the deceased
Testator P.N.Loganathan, who died on 27.01.2008, at Government Hospital
and ordinarily resided at No.49/22, Venkatadri Street, V.V.Koil Street,
Kosapet, Chennai-12. The Testator, during his life time, had executed a Will
dated 27.12.2007 in the presence of the witnesses and his parents
predeceased him. The Plaintiff is the one of the beneficiaries under the said
Will. The deceased Testator left behind him, as his legal heirs, his wife the
Plaintiff, the Defendant (son), and another son and three daughters. The Will
was executed in favour of the said legal heirs. In the Will, no executor is
appointed. In 2010, the said legal heirs had filed OS.No.6012 of 2010 for
partition before the XI Assistant Judge, City Civil Court, Chennai against the
Defendant and the same is pending. The Plaintiff came to know about the
existence of the Will in October 2011. The amount of assets, which is likely to
come into the hands of the Plaintiff does not exceed in the aggregate the sum
of Rs.10,200,000/-- and the net amount of the said assets, after deducing all
the items, which the Plaintiff, is by law allowed to deduct, is only of the value
of Rs.10,00,000/-. There is no next of kin or other persons interested to be
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impleaded. The Plaintiff undertakes to duly administer the property and the
credits of the said Testator, in any way concerning his 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
the Court, within six months from the date of grant of Letters of Administration,
with the Will annexed to the Plaintiff and also render a true account of the
said property and credits within one year from the said date. No application
has been made to any District Court or delegate or any other High Court for
probate or any Will of the said deceased or Letters of Administration with or
without the Will annexed to his property and credits. The two attesting
witnesses have filed their respective affidavits. The other legal heirs have
filed their respective consent affidavits. Hence, this Testamentary Original Suit
suit has been filed, seeking the reliefs, as stated above.
4. The case of the Defendant, in TOS is that the Plaintiff was misguided by the
Defendants 2 to 5 to have unlawful gain. The father of Defendant had already
executed a Will dated 30.10.2005 in favour of the Defendant, which was
brought to the knowledge of the Defendant only on 12.11.2007 and he
instructed not to disclose the Will till the loan, which was obtained only for the
sake of his brother is discharged fully. The Testator expired on 27.1.2008.
The Defendant had sent a legal notice dated 12.5.2010 to all the family
members. The Defendant has half share in the suit property as per the said
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Will. His brother sent a reply on 4.6.2010 with false averments and therefore,
he filed OS.No.6012 of 2010 before the City Civil Court, Chennai for partition
along with the other legal heirs with false allegations against the Defendant
and it was withdrawn. The other legal heirs have been engaging in unlawful
activities against the Defendant and his family. The Defendant has filed an
original petition on 29.11.2010 in Diary No.44400 of 2010 before this Court to
probate the Will dated 30.10.2005. Thereafter only, the present TOS came to
be filed with false allegations. Hence, the Defendant had filed OS.No.3170 of
2012 before the City Civil Court, Chennai. The Plaintiff colluded with the
other legal heirs in order to have unlawful gain. The Plaintiff has no right to
seek the relief under the Will dated 27.12.2007, which is forgery in nature.
The Will dated 30.10.2005 was duly executed and attested by the witnesses.
The TOS relying upon the Will dated 27.12.2007 is misleading. In such
circumstances, the TOS is liable to be dismissed.
5. In the plaint filed in Tr.CS, the averments stated in the written statement filed
in TOS are reiterated and hence, it need not be narrated again. It is further
stated that the father of the Plaintiff had executed a Will dated 30.10.2005,
transferring half share of the property in his favour and necessary steps were
taken to probate the Will. On 10.5.2010 the Defendants attempted to cause
damage to the property. On 22.5.2010 the Defendants caused damage to the
property. They committed theft of house hold articles on 24.3.2012. The
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Defendants intended to engage unlawful assembly of persons by way of
tenancy and continuously causing nuisance to the property. In such
circumstances, the Tr.CS has been filed for permanent injunction.
6. In the written statement filed by the 1st Defendant in Tr.CS, the averments
stated in the plaint in TOS are reiterated. It is further averred that the petition
filed in D.No.44400 of 2010 to probate the alleged Will dated 31.10.2005 is
not yet numbered. The Plaintiff is not entitled to get ½ share in the suit
property. The Will dated 31.10.2005 is a forged one. The Plaintiff forcibly
occupied two portions and the Plaintiff used to stay in Ayanavaram along with
his second wife and to come to the suit property in the night time. The
Defendants never unlawfully engaged assembly of persons and intended to
occupy the property by way of tenancy. The Plaintiff has not come with clean
hands. This Defendant is in possession of things and main hall. Hence, the
Tr.CS is liable to be dismissed.
7. On the pleadings of the parties, in TOS, the following issues were framed:-
(1) Whether the Will dated 27.12.2007 executed by late P.N.Loganathan
in favour of the Plaintiff/his wife is true, genuine and valid and not
surrounded by suspicious circumstances?
(2)Whether the earlier Will dated 30.10.2005 executed by late
P.N.Loganathan, has been revoked in the subsequent will dated
27.12.2007?
(3)Whether the Plaintiff is entitled for Letters of Administration?
(4)To what other relief, the parties are entitled?
8. On the pleadings of the parties, in Tr.CS, the following issues were framed:-
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(1)Whether it is true that the Plaintiff is in possession and enjoyment of
the suit property?
(2)Whether it is true that the Defendants engaged unlawful assembly of
persons for creating nuisance in the suit property?
(3)Whether the Plaintiff is entitled for permanent injunction as prayed for?
(4)To what reliefs?
9. The Plaintiff in TOS is the 1st Defendant in the Tr.CS. The sole Defendant in
TOS is the Plaintiff in Tr.CS. The Defendants 2 to 5 in Tr.CS are the other
legal heirs of the deceased Testator. In TOS, the Plaintiff in TOS was
examined as PW.1. The Defendant in TOS was examined as DW.1. In TOS,
Ex.P1 to Ex.P6 were marked and Ex.D1 to Ex.D12 were marked. In the
Tr.CS, on the side of the Plaintiff, Ex.A1 to Ex.A14 were marked and PW.1
was examined and on the side of the Defendants, Ex.B1 to Ex.B13 were
marked.
10.This Court heard the submissions of the learned counsel on either side in
both TOS and Tr.CS.
11.The learned counsel for the Plaintiff in TOS has submitted that she is the
wife of Loganathan, who died on 27.01.2008, leaving behind him, Anusuya,
Vijayaprakash, Shanthi, Sumathi and Gandhimathi, as his legal heirs.
Loganathan executed a Will on 27.12.2007, giving equal share in the suit
property to all the legal heirs. Vijayaprakash, Shanthi, Sumathi and
Gandhimathi gave consent affidavits to obtain Letters of Administration in
favour of the Plaintiff. He filed a partition suit in OS.No.6012 of 2010. At the
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time of Deepavali, while cleaning the almirah they found that Loganathan had
executed a Will dated 27.12.2007 and later on, they withdrawn the said suit
and filed this TOS. As per the Will, all the legal heirs are having equal share.
The alleged Will was not probated and so, he cannot claim half share based
on the said Will and therefore, he prays for allowing this TOS.
12.The learned counsel for the Plaintiff in TOS would further submit that three
daughters and two sons got married and were living in their respective
matrimonial houses separately. After the death of her husband, the 1st
Respondent herein shifted his matrimonial house to Ayanavaram, just to give
mental agony to him and he always kept the portion locked.
13.The learned counsel for the Defendant in TOS would submit that his father
Loganathan executed a Will dated 30.10.2005 knowing fully well that they
filed a partition suit in OS.No.6012 of 2010 before the City Civil Court,
Chennai. Later on they came to know that this is a frivolous and false suit and
hence, they withdrawn the suit. As per that Will, the Defendant has got half
share in the suit property and the other legal heirs are entitled to half share in
the suit property. The Defendants filed probate proceedings in D.No.44400 of
2010. the herefore, based on that Will, he is entitled to a half share. The Will
alleged by the Plaintiff was executed 27.12.2007 due to compulsion and
influence of the Defendants 2 to 5. The Plaintiff colluded with the Defendants
2 to 5 in order to cause undue hardship and sufferings and with an ulterior
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motive, they filed this TOS. The Plaintiff due to old age is not able to
understand the existing rights over the property, but misguided by the
Defendants 2 to 5 and filed the TOS with a mala fide intention and in order to
cause undue hardship and suffering to the Defendant for the reason that the
father of this Defendant executed a Will dated 30.10.2005. The Plaintiff had
no right to seek the relief under the Will dated 27.12.2007, which is forged in
nature and intended to create a confusion among the family members.
14.The learned counsel for the Defendant in TOS would further submit that he
has filed the suit for permanent injunction against the the Plaintiff. The Plaintiff
intended to encumber the suit property by disposing of 5/6th share by the aid
of unlawful assembly of persons and to cause undue hardship to his property
right with mala fide intention. Further, the Plaintiffs unlawfully engaged in
unlawful assembly of persons intended to occupy the entire property in the
name of tenancy. The alleged tenant created by the Plaintiff herein, which is
itself a fraudulent one with a mala fide intention created by the Defendant
herein. Unless the order of permanent injunction, restraining the Plaintiff from
encumbering and interfering with the peaceful possession and enjoyment of
the suit property, is granted, he would be made to suffer undue hardship and
irreparable loss. The Plaintiff herein with the help of the other Defendants,
locked the premises in the main hall and took away the movables, which are
necessary and he is unable to make use of those articles. The main hall is
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locked and the key of the hall is taken away by the 1st Defendant due to bad
advise given by the other Defendants in order to harass him and his family
members. The Defendants are giving continuous threat to his life and
property. Therefore, he filed the suit for appropriate relief. If permanent
injunction is not granted against the Defendants, he would be made to face
undue hardship and irreparable loss.
15.This Court considered the said submissions of the learned counsel on either
side and also perused the materials available on record.
16.TOS:- PW.1 has deposed that she is the wife of Loganathan and one of the
beneficiaries under the Will. The said Loganathan executed a Will dated
27.12.2007 in favour of her and the Respondents, giving them equal shares
over the suit Schedule property. Existence of the Will came to her knowledge
in the month of October 2011 and then she withdrew the partition suit in
OS.No.6012 of 2010. She further deposed that the 1st Respondent filed a
suit in OS.No.3170 of 2012 for permanent injunction. The 1st Defendant is
claiming half share in the suit property, which he is not entitled to. Three
daughters and two sons got married and they are living in their respective
matrimonial houses separately. Her husband died on 27.01.2008. After his
death, the 1st Respondent herein started to give trouble to them. The
averment made by the 1st Respondent that her husband bequeathed half
share of the suit property under the Will dated 30.10.2005 is not acceptable.
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It was a forged Will.
17.DW.1 has deposed that his father executed a Will dated 30.10.2005 in his
favour. The Plaintiff is aware of the said fact. Due to compulsion and
influence made by the Defendants 2 to 5, the Plaintiff filed this suit with false
and frivolous allegations. Because of his father's request, he only disclosed
the Will dated 30.10.2005. He has further deposed that he issued a legal
notice that he has got half share in the suit property as per the Will dated
30.10.2005. For that, the 2nd Defendant issued a reply. They filed
OS.No.6012 of 2010 for partition before the City Civil Court, Chennai with
frivolous allegations. Later on, the suit was withdrawn by them. He has filed
the original petition on 29.11.2010 in D.No.44400 of 2010 before this High
Court to probate the Will dated 30.10.2005. Only to mislead the Court they
filed a petition with ulterior motive. The matter in dispute was already settled
on 30.10.2005 by executing a Will by his father with regard to the disposal of
the property. The Plaintiff has no right to seek the relief under the alleged Will
dated 27.12.2007, which is forged in nature and cannot be accepted. The
Will dated 30.10.2005 in his favour is valid in nature. The Plaintiff and the
Defendants 2 to 5 are giving undue hardship and intended to disturb his
peaceful possession. Therefore, he filed a separate suit in OS.No. 3170 of
2012 for permanent injunction. The suit is filed by the Plaintiff in collusion
with the Defendants 2 to 5 and is liable to be dismissed. The alleged Will
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dated 27.12.2007 is forged in nature without any authority and it has to be
rejected in the eye of law. It was fraudulently created with ulterior motive in
order to defeat his claim under the Will dated 30.10.2005.
18.A perusal of the Will reveals that two witnesses, one Krishna and Syed Kader
have signed as the attesting witnesses. But, in the cross, PW.1 has deposed
that both the attesting witnesses are no more. If the Plaintiff is unable to
produce any one of the witnesses to prove the signature, at least, he has to
examine the person, who can identify and prove the signature of those
attesting witnesses. In this case, the Plaintiff failed to prove the Will, by
examining the person as a witness, who can identify and prove the signatures
of the attesting witnesses. So he miserably failed to take steps to examine the
witnesses. Therefore, the Plaintiff has not proved the Will by oral and
documentary evidence. Accordingly, Issue No.1 is answered. Since issue
no.1 is answered against the Plaintiff, issue no.2 does not arise and it need
not be considered at this stage. The Plaintiff is not entitled to Letters of
Administration or any other relief. Accordingly, issue nos.3 and 4 are
answered. Thus, all the issues in TOS are answered against the Plaintiff.
19.Tr.CS:- DW.1 in the suit has deposed that although the Plaintiff shifted to his
matrimonial home to Ayanavaram to give mental agony to the 1st Defendant,
he comes and stay in the evening and he always kept one portion locked.
20.The Plaintiff in cross examination in TOS, has deposed that “eh';fSk; kw;w
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gpujpthjpfSk; jpUkzk; Mfp jdpj;jdpahf trpj;J tUfpnwhk; vd;why;
rhpjhd;. ehd; ,utpy; madhtuj;jpy; vdJ 2tJ kidtp tPl;oy;
,Ug;ngd;/” Further, he has not filed any document to prove that he is in
possession. Hence, the issue nos.1 and 2 are answered against him. The
Plaintiff is not entitled for permanent injunction as prayed and he is not
entitled to any relief. Accordingly, issue no.3 and 4 are answered. Thus, all
the issues in Tr.CS are decided against the Plaintiff in Tr.CS.
21.In fine, this TOS and Tr.CS are dismissed. No costs.
27.07.2022
Index:Yes/No
Web:Yes/No
Speaking/Non Speaking
Srcm
1. List of Witnesses examined on the side of the Plaintiff:-
1. PW.1 – L.Anusuya
2. List of Exhibits marked on the side of the Plaintiff:-
1. Ex.P1 is the death certificate of Loganathan, dated 04.02.2008
2. Ex.P2 is the original Will executed on 27.12.2007
3. Ex.P3 is the consent affidavit dated 20.11.2011
4. Ex.P4 is the consent affidavit dated 20.11.2011
5. Ex.P5 is the consent affidavit dated 20.11.2011
6. Ex.P6 is the consent affidavit dated 20.11.2011
3. List of Witnesses examined on the side of the Defendants:-
1. DW.1 – L.Gopinathan
4. List of Exhibits marked on the side of the Defendant:-
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1. Ex.D1 is the true copy of the legal notice dated 12.05.2010.
2. Ex.D2 is the true copy of the reply dated 04.06.2010.
3. Ex.D3 is the true copy of the legal notice dated 28.12.2010.
4. Ex.D4 is the true copy of the reply dated 24.01.2011.
5. Ex.D5 is the true copy of the complaint dated 25.07.2014
6. Ex.D6 is the copy of the Will dated 30.10.2005.
7. Ex.D7 is the copy of the petition filed in D.No.44400 of 2010 filed
on 29.11.2010 to probate the Will.
8. Ex.D8 is the copy of the plaint in OS.No.6012 filed by the Plaintiff
dated 30.06.2010.
9. Ex.D9 is the copy of the written statement dated 4.1.2011 in
OS.No.6012 of 2010.
10.Ex.D10 is the copy of the complaint dated 5.4.2012.
11.Ex.D11 is the copy of the petitioner under Order 23 Rule 1 of CPC
to withdraw the suit under OS.No.6012 of 2010 dated 9.4.2012.
12.Ex.D12 is the copy of the fair and decreetal order in IA.No.5832 of
2012 in OS.No.6012 of 2010.
27.07.2022
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A.A.NAKKIRAN, J.
Srcm Pre-Delivery Judgement in TOS.No.60 of 2013 and Tr.CS.No.825 of 2014 27.07.2022 14/14 https://www.mhc.tn.gov.in/judis