Madras High Court
B.Radhakrishnan vs S.Vijayalakshmi .. 1St
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
RESERVED ON : 06.01.2017
DELIVERED ON : 20..01.2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CORAM
THE HON`BLE MR.JUSTICE N.SATHISH KUMAR
T.O.S.No.13 of 2010
in
OP.No.557 of 2002
and
C.S.No.374 of 2007
B.Radhakrishnan .. Plaintiff in Tos.No.13 of 2010 and 1st defendant in C.S.No.374 of 2007
Vs.
S.Vijayalakshmi .. 1st Defendant in TOS.No.13 of 2010
3rd defendant in C.S.No.374 of 2007
B.Ravindran .. 2nd defendant in TOS.No.13of 2010
and C.S.No.374 of 2007
D.Nirmala .. 3rd defendant in TOS.No.13 of 2010
and Plaintiff in C.S.No.374 of 2007
Original Petition No 557 of 2002 was filed under Sections 232 and 276 of Indian Succession Act, XXXIX of 1925 for the grant of letters of Administration. Against this petition a Caveat was filed on 30.04.2013 by the Caveators As per order of this Court dated 01.02.2010, the Original Petition No.552 of 2002 was converted into Testamentary Original Suit No.13 of 2010.
C.S.No.374 of 2007: Plaint filed under Section IV Rule 1 of Original Side Rules Read with Order VII Rule 1 of CPC praying for final decree appointing Advocate Commissioner to divide the schedule property by metes and bounds and to pay the cost of the suit
For Plaintiff in Tos.No.13 of 2010
and for 1st defendant in
C.S.No.374 of 2007 : Mr. V.Manohar
For 2nd defendant in TOS & CS : Mr.Liagat Ali
For 3rd defendant in TOS
and for the Plaintiff in CS : No appearance
For 1st defendant in TOS : No appearance
C O M M O N J U D G M E N T
The petition in OP.No.557 of 2002 originally filed for the grant of Letters of Administration has been converted as testamentary suit being TOS.No. 13 of 2010 in view of the caveat filed by the defendants therein.
2. The Suit in C.S.No.374 of 2007 has been filed for final decree appointing Advocate Commissioner to divide the schedule property by metes and bounds.
3. Since the facts involved in the Testamentary Suit in TOS.No.13 of 2010 as well as the Civil Suit in C.S.No.374 of 2007 are interconnected and the parties are one and the same, the facts have been culled out from the Testamentary Suit. For the sake of convenience, the parties are referred to as per the status in the Testamentary Suit.
4. The brief facts of the plaintiffs' case are as follows:
The suit property originally belongs to one Pappa @ Vlliammal, who died on 27.01.2001. The plaintiff and the defendants herein are the sons and daughters of the deceased Smt.Pappa @ Valliammal. According to the plaintiff, the Will in question was duly executed by the said Pappa @ Valliammal on 18.10.2008 at Cumbam, Theni District, bequeathing the property to the plaintiff herein. Hence, the above suit for grant of Letters of Administration.
5. The brief facts of the case of the 2nd defendant case are as follows:
According to the 2nd defendant, the plaintiff has filed the suit on the basis of a forged Will alleged to had been executed by his mother Tmt.Pappa @ Valliammal. According to the 2nd defendant, the property in question was purchased by him and thereafter, he put up a construction in the building and allowed his parents to reside there. It is stated by the 2nd defendant that out of love and affection, he executed Settlement Deeds settling the property in favour of his mother, namely, the deceased Pappa @ Valliammal and thereafter, he cancelled the same. According to the 2nd defendant, the Will said to have been executed is a forged one. As per family arbitration, an agreement was entered into between the legal heirs of the deceased Pappa @ Valliammal and the same was executed on 11.02.2001. As per the agreement, 2/5th share was allotted to the plaintiff and 1/5th share was allotted to each defendants. The 3rd defendant also filed a suit for partition in C.S.No.374 of 2007. Therefore, according to the 2nd defendant the TOS is not maintainable. Hence, he prayed for dismissal of the testamentary suit.
6. The brief facts of the case of the 3rd defendant are as follows:
According to the 3rd defendant, the suit is not maintainable either in law or facts. It is stated that the alleged Will is not a genuine and the same had been fabricated by the plaintiff and that, there are very many suspicious circumstances indicating that the same was not executed by the deceased Pappa @ Valliammal. The plaintiff and the defendants are the legal heirs of the deceased Pappa @ Valliammal, who are all entitled to succeed the estate of the said deceased. The suit has already been filed by the defendant in C.S.No.374 of 2007 for partition and separate possession and at the time of framing of issues only, the plaintiff has brought to the notice of this Court about the present suit for Letter of Administration. According to the 3rd defendant, the Will was not signed by the deceased Pappa @ Valliammal and the signature was obtained under undue influence, coercion and by fraud. It is stated that the attesting witness are strangers and that the propounder has taken a prominent role in executing the Will. According to the 3rd defendant, it is for the propounder to prove that the Will was executed by the testator out of her own wish and in sound and disposing state of mind and understood the nature and effect of this execution. Hence, she prayed for dismissal of the testamentary suit and decreetal of the suit for partition filed by her.
7. Denying the allegations made in the written statement by the 2nd defendant, Reply statement has been filed by the plaintiff, wherein it is stated as follows:
The 2nd defendant has come forward to take up the above defence only after a lapse of 12 years from the date of initiation of the probate proceedings. There is no valid reason set out by the 2nd defendant for such long delay. The 2nd defendant has not come forward to disclose his place of residence to show that his presence is genuine. There is every suspicion surrounded in the execution of his vakalat as well as other applications filed so far in this proceedings and in the connected proceedings. There are several complaints pending against the 2nd defendant due to his anti-social activities and frauds committed. The 2nd defendant has also entered into agreement with the third parties to sell the suit property as if he is the absolute owner and also collected hefty amounts as advance towards the same. In view of this activity, several criminal cases were registered against the 2nd defendant and the same were pending. The 2nd defendant had also indulged in dubious way of practice to cancel the documents of the year 1985 after a lapse of 22 years.
7. 1. The 2nd defendant never put up any construction in the suit property and the construction was put up only by the deceased Pappa @ Valliammal. The 2nd defendant has been drop out of the college and had became a vagabond and indulged in cheating, money laundering and other anti-social activities. In view of illegal activities done by the 2nd defendant, his mother, Pappa @ Valliammal, during her life time, issued public notice in the famous dailies stating that the 2nd defendant gone out of the family long prior and disassociating with the family, and that the family is in no way responsible for his lawful conduct and illegal activities.
7.2. It is stated by the plaintiff in the reply statement that the Will was executed when his late mother visited one of her close relative's house, i.e., Mr. V.Manivel's house, who is none other than her own brother and who resides at Cumbam, Theni District. The plaintiff wants to act as per the wishes of her late mother and to fulfill her aspirations. It is stated that as per the Will executed by her mother a sum of Rs.3,00,000/- has to be settled by the plaintiff to defendants and if the defendants accepted the same and to permit the plaintiff to act as per the wishes of mother, it would be fulfilled. Only on 16th ceremony of the plaintiff's mother, i.e. On 11.2.2001, the Will was informed by his maternal uncle before the relatives and he had also received the same. There is no family arbitration held on the said date as alleged by the 2nd defendant. Having knowledge about the execution of the Will by the mother and after having participated in the OP proceedings, the 2nd defendant has filed the suit for partition with ulterior motive. Hence, he prayed for Letters of Administration and for dismissal of the Suit for partition.
8. On the basis of the above pleadings, the following issues have been framed in TOS No.13 of 2010 by this Court vide order dated 10.09.2014:
(1) Whether the testamentary Will dated 18.10.2000 executed by the deceased Mrs.Pappa @ Valliammal as annexed to the above OP and TOS is genuine and enforceable one? (2) Whether the plaintiff is entitled to the relief as prayed for? (3) To what other reliefs, the parties are entitled to?0
9. The issues framed in in C.S.No.374 of 2004 are as under:
(i) Whether the suit property is available for partition as claimed by the plaintiff in the light of testament executed by late Smt.Pappa Valliammal on 18.10.2000?
(ii) Whether the suit is bad for partial partition claim or not?
(iii) Whether the suit is a counter-blast to T.O.S. No.13/2010 ?
(iv) Whether the suit is maintainable as the subject matter is involved in T.O.S. No.13/2010?
(v) What are the other reliefs?
10. On the side of the plaintiff, P.W.1 to P.W.3 were examined and Exs.P1 to P50 were marked. No oral and documentary evidence were marked on the side of the defendant. The details of the documents are here under:
Exhibits produced on the side of the plaintiff:
S.No Exhibits Date Description of documents
1. P-1 18.10.2000 Copy of testamentary document of Will executed by Mrs.B.Pappa @ Valliammal
2.
P-2 .02.2001 Sworn affidavit of first attesting witness
3. P-3 .05.2001 Sworn affidavit of second attesting witness
4. P-4 24.02.2001 Death Certificate for Testator Mrs.B.pappa @ Valliammal 5 P-5 29.03.2001 Legal heir ship certificate for deceased B.Pappa @ Valliammal 6 P-6 31.05.1985 Settlement deed No.1989/1985 in favour of testator (Mrs.Pappa @ Valliammal) 7 P-7 18.06.1985 Settlement deed No.2225/1985 in favour of testator (Mrs.Pappa @ Valliammal) 8 P-8 20.11.1991 Corporation Plan Sanction of the building 9 P-9 19.3.2014 Property Tax Receipt 10 P-10 16.10.2015 EB Payment Receipt 11 P-11 30.03.1992 Mortgage deed Doc. No.1915 of 1992 executed by Mrs.B.Pappa @ Valliammal 12 P-12 01.10.1996 Receipt Doc.No.2724 of 1996 for Redemption of mortgage executed by Muthialpet Benefit Society 13 P-13 15.08.1999 Paper publication in Indian Exp English daily issued by Testator against 2nd defendant 14 P-14 15.08.1999 Paper publications in Malai Malar Tamil daily issued by testator against 2nd defendant 15 P-15 31.03.2001 Legal notice issued by 2nd defendant to plaintiff 16 P-16 18.04.2001 Reply given by plaintiff 17 P-17 05.09.2006 Legal notice issued by 2nd defendant to plaintiff 18 P-18 11.09.2006 Reply given by plaintiff 19 P-19 28.03.2007 Sale agreement Doc.No.1196 of 2007 executed by 2nd defendant 20 P-20 04.04.2007 Cancellation of agreement Doc.1335 of 2007 21 P-21 04.04.2007 Sale agreement Doc.No.1337 of 2007 executed by 2nd defendant 22 P-22 31.05.2007 Cancellation of settlement in Doc.No.2010 of 2007 23 P-23 31.05.2007 Cancellation of settlement in Doc.2018 of 2007 executed by applicant 24 P-24 31.05.2007 Cancellation of settlement in Doc.2019/2007 executed by applicant 25 P-25 31.05.2007 Sale agreement Doc.No.2020/2007 executed by applicant 26 P-26 14.02.2012 Doc.No.524 of 2012 (decree and judgment in O.S.8481/2009, dated 14.10.2010 and A.S.No.543/2010 registered before SRO Anna Nagar 27 P-27 25.02.2011 Release Deed Doc.No.730/2011 registered in favour of 2nd defendant 28 P-28 04.03.2011 Power of Attorney Doc.No.225/2011 executed by 2nd defendant 29 P-29 16.03.2011 Sale agreement Doc.No.999/2011 registered by 2nd defendant 30 P-30 14.05.2012 Order passed by District registrar, Chennai Central 31 P-31 29.09.2011 FIR in Cr.No.1631/20o12 filed against 2nd defendant 32 P-32 15.06.2012 Letter issued by Sub Registrar, Anna Nagar to Thirumangalam Police Station towards void documents registered 33 P-33 24.08.2012 General power of attorney document No.889/2012 registered by 2nd defendant 34 P-34 27.12.2012 Cancellation of Power of Attorney Doc. No. 4413 of 2012 by 2nd defendant 35 P-35 31.03.2014 Encumbrance certificate for the period 1.1.2006 to 31.3.2014 issued by Sub Registrar, Anna Nagar for will property 36 P-36 03.05.2004 Reply given by plaintiff for the complaint given by 2nd defendant before SP Office, Theni 37 P-37 29.01.2007 Reply given by plaintiff for the complaint before Flower Bazzar police station 38 P-38 30.06.2008 Complaint under 156(3) Cr.P.C. given by 2nd defendant 39 P-39 11.08.2008 FIR 544/2008 against the private complaint 40 P-40 13.01.2011 Letter of Thirumangalam Police station to Plaintiff 41 P-41 07.02.2007 & 09.02.2007 Complaint given by 1st and 2nd defendants to Arumbakkam Police Station and receipt of original documents for will property 42 P-42 02.11.2007 Order in Application No.2457/2007 passed by Hon'ble Master 43 P-43 20.04.2007 Counter by Memo filed by Mr.Manickavasagam 44 P-44 13.03.2008 Order in Apeal 184/2008 filed by Mr.Manickavasagam 45 P-45 14.07.2007 Paper publication given by 2nd defendant for missing original documents for 'will' property 46 P-46 02.08.2007 Non traceable certificate issued by Police Record Bureau for original documents of 'Will' property obtained by 2nd 47 P-47 01.08.2001 Letter of 1st defendant to plaintiff 48 P-48 28.06.2007 Letter of 1st defendant to plaintiff stating that original title documents with her 49 P-49 Copy of Election Commission Identity card for Mr.S.Muralidharan 50 P-50 Copy of Aadhaar Identity card for Mr.S.Surilivel, Second attesting witness Witnesses examined on the side of the plaintiff:
P.W.1. - B.Radhakrishnan P.W.2- S.Murali @ Muralidaran P.W.3 - S.Surulivel
11. In view of the order dated 21.03.2016 passed by the Division Bench of this Court in OSA.No.69 of 2016, the suit for partition filed by one D.Nirmala and the testamentary suit filed by one B.Radhakrishnan were tried together and the entire evidence was recorded only in TOS.No.13 of 2010 and the defendants 1 and 3 in testamentary suit remained ex parte and thereafter they have not come forward to adduce evidence in TOS and also in C.S.No.374 of 2007. It is to be noted that the Letters of Administration was already granted on 25.2.2015, and based on the appeal filed by the 2nd defendant in O.S.A.No. 69 of 2016, the ex parte decree was set aside.
12. Be that as it may. Now the 2nd defendant, who is the only contestant in TOS has not adduced any oral evidence on his side. He has also made endorsement to that effect also before the Master.
13. In the above background, the learned counsel appearing for the plaintiff would contend that the suit property belongs to the plaintiff as his mother Pappa @ Valliammal had executed the Will dated 18.10.2010. The defendants 1 and 3 though filed caveat had not participated in trial. The property was originally purchased in the name of 2nd defendant and 2nd defendant had executed settlement in the name of his mother in the year 1985. Thereafter, the settlement was cancelled by the 2nd defendant during the pendency of the suit proceedings only to gain unjust enrichment, as the original setlee, namely, Pappa@ Valliammal, passed away. The 2nd defendant, who is the only contesting defendant in this suit, has acted against the interest of the family from the young age. In fact, he was not maintained good relationship with the family members. He is the vagabond and spendthrift, which resulted the mother of the plaintiff to disown him from the very beginning. In fact she has given publication in the familiar dailies to the general public about the conduct of her own son, i.e. the second defendant herein. The conduct of the 2nd defendant assumes significant.
14. The learned counsel appearing for the plaintiff further submitted that during the pendency of the suit proceedings, he has executed several agreement for sale of suit properties and availed crores of Rupees. Having executed such documents and having filed an application to set aside ex parte decree and written statement, he failed to contest the suit. In fact, he has also created documents by impersonation before the Sub Registrar, as if the plaintiff himself agreed to release shares to him and the same were subsequently, found to be a forged one. In this regard, criminal cases are also pending against the 2nd defendant and he was the absconding accused in the the said matter.
15. It is the submission of the learned counsel for the plaintiff that the conduct of the 2nd defendant in not willing to get into the witness box to withstand cross examination establishing the fact that he was not in good terms in the family from the beginning, particularly in the mind of his mother. Therefore, the mother disinheriting him in the Will is a reasonable one. It is the further submission of the learned counsel for the plaintiff that the Will has been executed at Cumbum in the presence of the witnesses. P.W.2 and P.W.3 clearly spoken about the attestation, execution as well as testamentary capacity of the testatrix. The reasons stated in the Will for disinheriting the 2nd defendant is acceptable one, in view of the conduct of the 2nd defendant. Even then, the testatrix has made sufficient provision of payment of money to 2nd defendant as well as defendant Nos.1 and 3. Therefore, it is submitted by the learned counsel for the plaintiff that once the Will has been proved in the manner known to law, the burden lies on the 2nd defendant to establish the allegation of forgery, fabrication and undue influence. Further, no motive whatsoever, attributed against the attesting witnesses. Hence, it is submitted by the learned counsel for the plaintiff that Ex.P1 Will dated 18.10.2010 has been clearly proved in the manner known to law.
16. In support of his arguments, the learned counsel for the plaintiff has placed reliance on the judgments of the Hon`ble Apex Court reported in (2008) 4 SCC 300 (Krishna Kumar Birla v. Rajendra Singh Lodha and Others); (2010) 10 SCC 512 (Man Kaur (Dead) by Lrs v. Hartar Singh Sangha ); (1999) 3 SCC 573 (Vidhyadhar v. Manikrao and another); (2006) 5 SCC 558 (Anil Rishi v. Gurbaksh Singh) and 2004 9 SCC 468 (Krishna Mohan Kul alias Nani Charan Kul and another v. Pratima Maity and Others)
17. Per contra, it is the submission of the learned counsel for the 2nd defendant that the property was originally purchased in the name of the 2nd defendant and he has settled the same in favour of his mother by way of Settlement Deed, dated 31.5.1985. Thereafter, as the family surroundings were not good and as the plaintiff herein tried to engulf the entire property, the 2nd defendant was forced to cancel the Settlement Deed on 31.05.2007. Therefore, it is the contention of the learned counsel for the 2nd defendant that the property has been reverted back to the 2nd defendant and he is enjoying the property all along by paying the property tax etc. It is the further contention of the learned counsel for the 2nd defendant that the plaintiff's mother is the permanent resident of Chennai, but the Will dated 18.10.2000 allegedly executed in the remote village i.e., Cumbam. It is also stated by the learned counsel for the 2nd defendant that the plaintiff's father's permanent address is Theni District. But, the said Will was neither executed in Chennai nor in their permanent place. No reason, whatsoever has been given in the Will or in evidence for executing the Will at Cumbum.
18. The learned counsel for the 2nd defendant further submitted that though it is the contention of the plaintiff that one Sundarrajan, his maternal uncle, took his mother to Cumbum, the same has not been established by examining the said Sundarrajan. Apart from this, the contention of the plaintiff that the Will was executed at Manivel's house at Cumbum, has also not been established by examining the said Manivel. It is the contention of the learned counsel for the 2nd defendant that the attesting witnesses are stock witnesses and the scribe is the document writer and, therefore, their evidence is highly unreliable and doubtful. It is the contention of the learned counsel for the 2nd defendant that the Will was not registered. These facts create suspicious circumstances about the Will. The evidence of P.W.2 and P.W.3 shows that the Will was hand written in English but the same has not seen the light of the day. The alleged Will is shrouded with suspicious circumstances. In fact, there was a settlement arrived at between the family members on 11.02.2001 to divide the suit property in the presence of one Manickawasagam and Kannan. The above facts clearly show that there was no Will and that the Will has been brought out later and the same is concocted and created one. Hence, the learned counsel for the 2nd defendant submitted that the Will has not been executed in the manner known to law. The learned counsel for the 2nd defendant has also relied on the judgment of the Hon`ble Apex Court reported in AIR 1990 SC 396 (KALYAN SINGH VS. CHHOTI) to substantiate his contention.
19. In view of the above submissions, now the issues framed by this Court in TOS have to be answered.
Issue Nos: 1 to 3:
20. The relationship between the parties are not in dispute. The plaintiff and the defendants are the sons and daughters of one Pappa @ Valliammal, who died on 24.02.2001, which has been proved under Ex.P4, Death Certificate. It is also not in dispute that originally the property was purchased in the name of the 2nd defendant. However, the second defendant under Exs.P6 and P7, Settlement Deeds dated 31.5.1985 and 18.06.1985, settled the property in favour of his mother, namely, Pappa @ Valliammal. Thereafter the said Pappa @ Valliammal exercised absolute control over the property. Exs.P8, P9 and P10 clearly show that she obtained plan for construction of building in the suit property and also paid the house tax and electricity tax for the suit property. Exs. P11 and P12, Mortgage Deed and Redemption of Mortgage executed by the said Pappa @ Valliammal were also filed. From the above documents, it could be easily inferred that after the settlement in favour of the said Pappa@ Valliammal, she was enjoying the property as absolute owner.
21. It is the contention of the plaintiff that the 2nd defendant is not a responsible person in the family from the very beginning and he is a vagabond and spendthrift thereby brought several difficulties to the family. Hence,the family members did not like him from the very beginning. In fact, his mother has issued publication to the general public informing them about the conduct of the 2nd defendant. To prove the above facts, Exs. P13 and P14, publications issued in English Daily, namely, the Indian Express and the Tamil daily, namely, Malai Malar, dated 15.08.1999 have been filed. When Exs.P13 and P14 were carefully perused, it is clear that the mother of the parties, namely, Pappa @ Valliammal issued publication informing the general public that her elder son, B.Ravindran is indulging in borrowing money and other untoward activities on his own and he has severed the connection with the family for more than 10 years ago and hence, the family members are in no way connected with regard to his illegal activities and he is not residing at the above address also. By giving such publication, she has warned the public not to deal with him or intend to deal with him. Similarly, in vernacular language, another publication was also issued by the said Pappa @ Valliammal to the same effect. These facts are also not even disputed in the cross examination of P.W.1. From the above documents, it is very clear that the 2nd defendant was not in connection with the family members from the very beginning. In fact, he has created hatredness with his mother. If such hatredness was not there between him and his mother, no mother would issue such publication against her own son intimating about his conduct to General public.
22. It is to be noted that under Ex.P15, the 2nd defendant issued a legal notice to the plaintiff and the defendants 1 and 3 claiming that her mother died intestate and, therefore, he is entitled to < share in the suit property. This legal notice was issued on 31.3.2001 for which, a suitable reply was sent by the plaintiff on 18.4.2001 under Ex.P16. In Ex.P16, the plaintiff has pleaded that since he was taking care of his parents, mother has executed the Will dated 18.10.2000 bequeathing the property exclusively to him. It is also stated in the reply notice that execution of the Will was very much known to the 2nd defendant and, therefore, disputed the claim for partition. It is to be noted that thereafter, the 2nd defendant remained silent and suddenly issued another legal notice dated 05.09.2006 as if he is claiming the share for the first time. He never shown any protest to the Will left by the mother, which was intimated to him in the reply notice dated 18.4.2001 itself. The second legal notice was also properly replied by the plaintiff. These facts assumes significant in determining the validity of the Will. It is further to be noted that without taking any legal recourse in respect of alleged Will, the 2nd defendant has entered in to various sale agreement to third parties from 28.3.2007 and received huge amounts. Finally has has also cancelled the Settlement Deeds on 31.5.2007, which was executed in the year 1985 in favour of his mother.
23. It is curious to note that Settlement Deeds are cancelled unilaterally by the 2nd defendant after six years from the date of the death of her mother. After execution of such documents, the 2nd defendant also entered into a sale agreement for sale in favour of one G.Srinivasan under Ex.P25 and received Rs.35,00,000/- in advance. The plaintiff, immediately, has filed a suit in O.S.No.8481 of 2009 for declaration declaring cancellation of Settlement Deeds is null and void. The suit was decreed and the same was exhibited as Ex.P26. Originally,the trial Court has granted decree subject to the disposal of the probate proceedings in OP.No.557 of 2002 but the same was modified in the Appeal Suit, where the Cancellation of Settlement Deeds was declared to be null and void.
24. It is also curious to note that subsequently, the 2nd defendant has got registered Release Deed as if the same was executed by all the sharers in the property, which could be seen from Ex.P27. Power of Attorney Deed was also executed by the 2nd defendant under Ex.P28. Thereafter, again, he entered into sale agreement and received a sum of Rs.94,00,000/-as advance. Total consideration of sale in the above agreement is Rs.1,05,00,000/-. Thereafter, it was found that that the Release Deed itself was executed by way of forgery and impersonation and the District Registrar, Chennai Central has passed an order cancelling the Registration of the Release Deed under Ex.P30. The order passed by the District Registrar, Chennai Central in Ex.P30 clearly shows that the alleged Release Deed said to have been executed by the 2nd defendant and her sister is forged one and the same has been created and registered by impersonation before the Registrar and finally, he has cancelled the Registration. In view of the above forgery, an FIR has been filed against the 2nd defendant for various offences under IPC on 29.9.2011, as could be seen from Ex.P31. The Sub Registrar also sent a letter to the Inspector for recommending criminal action against the person, who committed impersonation, under Ex.P32. Later, General Power of Attorney, executed by the 2nd defendant in Ex.P33 was cancelled under Ex.P.34. Ex.P35, Encumbrance Certificate clearly show the nature of the transaction entered by the 2nd defendant, that too, during the pendency of the present proceedings.
25. The above facts clearly show the intention of the 2nd defendant to grab the property in some way or other even when the matter is pending and subjudiced before the Court. Besides, he has also given false private complaint against the plaintiff and based on the said false complaint, an FIR was also registered against the plaintiff, which is seen from Exs.P37 to P.40. The above complaints are later referred as mistake of law. Not only from the above the documentary evidence but also the oral evidence of P.W.1 clearly established the fact that 2nd defendant went to extreme level to grab the properties.
26. That apart P.W.1 in his evidence has clearly spoken about the conduct of the 2nd defendant from the very beginning and the manner, in which the publication was issued by his mother and how the 2nd defendant had committed forgery while registering the Sale Deed. Further, the various documents produced by the plaintiff clearly show how the 2nd defendant made attempt at every stage to swallow the property. The facts found in the evidence of P.W.1 is not even traversed by way of cross examination by the 2nd defendant. Therefore, the above facts on record clearly established the conduct of the 2nd defendant.
27. In the above background, now it has to be analysed as to whether the Will propounded by the plaintiff is proved in the manner known to law.
28. Ex.P1 unregistered Will, left by the mother of the plaintiff is attested by two attesting witnesses, one S.Murali and S.Surlivel. The recitals of the Will clearly show that the same was executed by the testatrix while she was in sound mind. Further the testatrix has given adequate reasons for not providing share to the other legal heirs. Since the daughters were given adequate sridhana at the time of their marriage and that they have well settled in their life, they were not given any immovable property. Similarly, the first son of the testatrix, namely, the second defendant herein, was excluded since he has no responsibility and has not married and never cared about the family. The reasons given by the testatrix coupled with the conduct of the 2nd defendant from very beginning, more particularly, the manner in which publication was issued by the mother against her own son, as discussed above, clearly show that the mother was not having any affection towards the 2nd defendant and she was also not interested to part with any property to him. The reasons set out in the Will also clearly indicate that the 2nd defendant not yet married and leading a carefree life without taking any responsibility in the family. Eve then, the testatrix had made provision of a sum of Rs.3,00,000/- (Rupees Three Lakhs only) as cash to the 2nd defendant and also Rs.3,00,000/- (Rupees Three Lakhs only) each to the other defendants.
29. It is to be noted that the Will has been written by one Kalidasan, a document writer of Cumbum. P.W.2 in his evidence has stated about the execution of the Will by the testatrix. P.W.2 also stated that the testatrix signed the Will in his presence as well as the other attesting witness, one Surlivelu, and she was in good state of mind at that time. When the evidence of P.W.2 and P.W.3 were carefully perused, it is seen that they have clearly spoken about the execution, attestation and the testamentary capacity of the testatrix. They have clearly spoken that the testatrix came to one Manivel's house, who is the maternal uncle of the plaintiff, at the relevant time. Only on her instruction, the said Manivelu sought the help of one Kalidasan, scribe of the Will. Accordingly, the Will was prepared. It is the evidence of P.W.2 that the testatrix frequently used to visit Manivel's house. Both P.W.2 and P.W.3 in their evidences have clearly stated that the Will was prepared and executed at Cumbum. Except alleging that P.W.2 received amount from the said Manivel for signing the documents, no other motive whatever, attributed against P.W.2 and P.W.3. P.W.2 and P.W.3 have categorically stated in their evidence that they knew Manivel, who was working in the Sub Registrar Office, and only at his request, they agreed to sign in the document as attesting witnesses. The persons, who were frequently used to visit the Registrar Office, and signing the document at the request of the any one known to them is quite natural.
30. From the evidence of P.W.1 and P.W.2, it could be seen that the said Manivel is the relative of the testatrix, who was working as a clerk in the Sub Registrar Office at the relevant time. Further the document writer, Kalidasan would also frequently visit the Sub Registrar's Office. P.W.2 and P.W.3 have acquaintance with those people. In such scenario, it is quite natural for the said witnesses to attest the documents, particularly, at the request made by the known persons. Therefore, merely, because the Will was prepared, signed and executed at Cumbum itself is not a ground to hold that the Will is shrouded with suspicious circumstances.
31. It is to be noted that the plaintiff's father's native place is situated at Theni District. Therefore, it is quite natural for the testatrix to visit her husband's place. P.W.1 in his evidence in the cross examination also clearly stated that the testatrix visited the relative's house at Cumbam and at that time, the will was prepared. It is also admitted by P.W.1 that one Sundarrajan, the maternal uncle of the plaintiff, took his mother to Cumbam she stayed at Manivel's house at Cumbam. P.W.2 and P.W.3, attesting witnesses' evidence also clearly show that the Will was prepared at Manivel's house. The mother visiting relatives house is quite natural and that cannot be a ground to raise a doubt about the Will. Merely because the property situate in Chennai and the mother is also living at Chennai, one cannot be expected that the Will should be prepared and signed where the property situate. Probably, the testatrix would have written such a Will in order to avoid any untoward activities by the 2nd defendant.
32. From the records, it is seen that from the very beginning, the 2nd defendant is not having any cordial relationship with his mother and he is interested only to grab the property from her. The manner in which the publication was issued in the year 1999 by the mother against her own son clearly indicates that the mother is not at all having attachment towards him from the very beginning. In order to keep the secret of the execution of the Will, the testatrix would have executed the Will at Cumbum. Therefore, merely because the Will was executed in the place, which is far away from Chennai, itself is not a ground to disbelieve the Will.
33. Though it is the contention of the 2nd defendant that in her mother's 16th ceremony, family arrangement was made in the presence of paternal uncle, one Manikavasagam, to establish the same, no oral and documentary evidence was adduced by him. The said Manikavasagam has not been examined. Further, the stand taken by the 2nd defendant in the cross examination of P.W.1 was that such settlement was signed in the presence pf Manikavasagam. In this regard, the order passed by this Court, which is marked as Ex.P44, clearly indicate that the alleged documents were already handed over to the 2nd defendant and 3rd defendant and he had also filed a complaint for missing documents. The above stand of the 2nd defendant is falsified in view of the order passed by this Court as early as on 13.3.2008. D.W.1 and 3 has not even contested the matter and even in the suit for partition, they have not adduced any evidence. The 2nd defendant has also not adduced any evidence.
34. The 2nd defendant has not come forward to adduce evidence, despite specific allegations have been made against him. The above facts clearly indicate that the 2nd defendant, in order to escape from the clutches of law with regard to the serious allegation of impersonation made against him, has not come forward to adduce evidence, probably to avoid cross examination and from getting exposed. Non-examination himself before court, particularly, when serious allegations are raised against him forces this court to draw an adverse inference against him. Further, the allegations of forgery and fraud about executing the Will also not been established before the court of law. Further, the signature of the testatrix has not been seriously disputed by the 2nd defendant. Therefore, the allegations of forgery and fraud cannot be sustained.
35. Insofar as the judgment relied on by the learned counsel for the 2nd defendant reported in AIR 1990 SC 396 (KALYAN SINGH VS. CHHOTI) is concerned, absolutely, there is no dispute with regard to the proposition laid down in the said case. In the said Judgment, the Hon`ble Apex Court has held that trust worthy and unimpeachable evidence should be produced before the Court to establish the genuineness and authenticity of the Will. In the case on hand, admittedly, the entire evidence on record, would prove the genuineness and the authenticity of the Will. Therefore, this Court do not find any suspicious circumstances attached to the Will. In this case, the mother is disinherited her own son, who is always giving trouble in the family. That apart, adequate reasons have been given in the Will for disinheriting her daughters also. Besides, in the Will, sufficient provision of cash of Rs.3,00,000/- each was given to the defendants. Therefore, the judgment relied on by the learned counsel for the 2nd defendant reported in AIR 1990 SC 396 cited supra is not applicable to the facts of the present case.
36. In the result,
(i). The suit in TOS.No.13 of 2010 is decreed.
(ii). The Letters of Administration, having the effect limited to the State of Tamil Nadu, shall be issued in favour of the plaintiff in respect of the property bequeathed to him in the Will dated 18.10.2000.
(iii). The plaintiff is directed to duly administer the estate of the deceased.
(iv). The plaintiff shall execute a security bond for a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) in favour of the Assistant Registrar (O.S-II), High Court, Madras.
(v). The plaintiff is further directed to render true and correct accounts once in a year.
(vi). No costs.
CS.No.374 of 200737. Plaintiff, who filed a suit has not adduced any evidence. Further, in view of the decretal of the Testamentary Suit in TOS.No.13 of 2010, the suit for partition in C.S.No.374 of 2007 cannot stand. The issues framed are answered accordingly and the suit is dismissed.
38. In the result, the suit in C.S.No. 374 of 2007 is dismissed. However, considering the relationship between the parties, there shall be no order as to costs.
Index:Yes/no Internet: Yes ga 20..01..2017 N.SATHISH KUMAR.J. ga Pre-delivery Judgment in T.O.S.No.13 of 2010 (O.P.No.221 of 2008) and C.S.No.374 of 2007 20..01..2017 http://www.judis.nic.in