Madras High Court
Mrs. Glowry Manickam vs D. Richard on 24 January, 2024
1 CS.No.551 of 2012 & TOS.No.31 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 26.09.2023
PRONOUNCED ON :24. 01.2024
CORAM:
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
CS.No.551 of 2012 and
TOS No.31 of 2013
1. Mrs. Glowry Manickam,
2. Manickam ...Plaintiffs
in CS.551 /2012
and 1 plaintiff herein is the 1st
st
defendant in TOS No.31 of 2013.
... Vs....
1. D. Richard, S/o. Late Doss
2. D. Vincent, S/o. Late Doss
3. D. Lawrence S/o. Late Doss
4. D. Victor, S/o. Late Doss
5. Charles, S/o. Late Doss
6. D. Johnson, S/o. Late Doss
7. Sahayarani Philemin Raj D/o. Late Doss
8. D. Samson S/o. Late Doss
9. Jansi Peter, D/o. Late Doss
10. Maria Selvi Nixon D/o. Late Doss ...Defendants
th
in CS.551 /2012 and 5 defendant herein is
the plaintiff in TOS No.31 of 2013 and 7, 9
and 10 defendants herein are the defendants
in TOS No.31 of 2013
https://www.mhc.tn.gov.in/judis
2 CS.No.551 of 2012 & TOS.No.31 of 2013
Prayer:- This Civil Suit has been filed, under Order VII Rule 1 of CPC,
for the relief as stated therein. This Testamentary Original Suit has been
filed, under Sections 232 and 276 of the Indian Succession Act and Order
25 Rule 5 of the Original Side Rules, for the relief as stated therein.
For Plaintiffs-CS.551/2012
1st Defendant-TOS.31/2013 ... Mr.M. Balasubramaniam
For Plaintiff in TOS No.31/2013 .... Mr. P. Mohandass
For Defendants 1 to 4, 6 &8 in
CS No.551 of 2012 .... Mr. A. Srinivasa Subbiah
th
For 5 Defendant in CS No.551
of 2012 .... Mr. P.S. Vasantha Kumar
For Defendants 7, 9 & 10 in
CS No.551 of 2012 .... Mr. A.M. Basheer Rahman
******
COMMON JUDGMENT
This Civil Suit has been filed, seeking a judgement and decree, for the following reliefs:-
(a) For a partition of all the Schedule mentioned properties into 11 equal shares and allot one such share to the first Plaintiff by metes and bounds and with reference to value thereof and put the 1st Plaintiff in possession thereof;
(b) For mesne profits;
https://www.mhc.tn.gov.in/judis 3 CS.No.551 of 2012 & TOS.No.31 of 2013
(c) For appointment of an Advocate Commissioner to divide the suit properties and allot the share of 1st Plaintiff as per the preliminary decree being passed; including by deciding the mesne profits;
(d) For costs of this suit
2. This Testamentary Original Suit has been filed to grant Probate in respect of the Will dated 18.08.1994 in favour of the plaintiff herein, executed by the deceased Mrs.Poonatchiammal and Mr. S.Doss, who died on 12.07.1995 and 09.09.2011 respectively.
3.The case of the Plaintiffs in Civil Suit, is as follows:-
(i) The first Plaintiff and the Defendants herein are the children of late Ponnachiammal and late Doss, who are all Indian Christians. The mother of the 1st Plaintiff, viz., Ponnachiammal duly inherited the following properties from her mother:- (1) House and ground bearing Old Door No.13, New No.7, Kasimanagar I Street, Royapuram, Chennai-13; (2) House and ground bearing Old Door No.5, New No. 9, Kasi Garden 3rd Street, Royapuram, Chennai-13; (3) House and ground bearing Old Door https://www.mhc.tn.gov.in/judis 4 CS.No.551 of 2012 & TOS.No.31 of 2013 No.4, New No.13, Albert Jesudoss Colony, 2nd Street, Chennai-600013; (4) House and ground bearing Old Door No.45, New No.5, Bentlemen Garden 2nd Lane, Royapuram, Chennai-13; Apart from that, the mother and father of the parties jointly owned a property at Old No.11, New No.19, Vadhiyar Egappan Street, Royapuram, Chennai - 600 013. The said Poonachiammal and Doss died intestate on 12.07.1995 and 09.09.2011 respectively leaving behind the 1st plaintiff and the defendants as their only legal heirs to inherit their estates. Apart from the immovable properties, 90 sovereigns of Gold jewellery and bank deposits are left by the deceased parents. The 1st plaintiff being one of the legal heirs of late Ponnachiammal and late Doss is entitled to 1/11 th share in respect of immovable and movable properties including the amount lying with the Bank. Even though various portions are let out in the suit schedule properties, the defendants 1 to 10 colluded together and are collecting the rents wherein no share of rental income has been provided to the 1 st plaintiff. The sons of late Doss, namely the 1st Plaintiff's brothers are now trying to sell the Schedule mentioned joint family properties to third parties by excluding the women sharers, inclusive of the first Plaintiff, and yet the first Plaintiff's three sisters have now colluded with the acts of their https://www.mhc.tn.gov.in/judis 5 CS.No.551 of 2012 & TOS.No.31 of 2013 brothers, in order to deprive the valuable right and share of the first Plaintiff herein. She has throughout been visiting the suit properties as a joint family member and has been in constructive joint possession of the Schedule mentioned properties which are subjected to partition. By way of abundant caution and in order to defeat the collusive acts of the Defendants, the 1st Plaintiff executed the following Settlement Deeds have been registered before Sub-Registrar's Office, Royapuram, Chennai, in favour of the 2nd Plaintiff, her husband with respect to her 1/11th undivided interest in the above said five joint family properties:-(1) Settlement Deed dated 21-02-2012 (Doc. No.588/12) (2) Settlement Deed dated 21-02-2012 (Doc.No. 590/12) (3) Settlement Deed dated 23-02-
2012(Doc.No.637/12) and (4) Settlement Dead dated 28-02-2012(Doc. No.696/12). Hence, as the Settlee of the first Plaintiff's undivided interest, the 2nd Plaintiff is also arraigned as a party Plaintiff in the above Suit for Partition. After the death of First Plaintiff's father, Doss on 09-09-2011, at the time of burial, the plaintiffs as well as the Defendants herein decided to settle the matter pertaining to partition of the joint family properties amongst themselves, after two weeks from the date of death. As such, on 12-12-2011 at about 3.00 P.M. the Plaintiffs herein visited the house of the https://www.mhc.tn.gov.in/judis 6 CS.No.551 of 2012 & TOS.No.31 of 2013 5th defendant, viz, Charles for negotiation with regard to partition. But, the 5th defendant virtually threatened the Plaintiffs that they should forget about the joint family properties and Jewellery, and in spite of it if they claim any right, he will liquidate both the Plaintiffs. Thereafter, the Plaintiffs gave a Complaint to the Police on 13-12-2011 by setting out the above facts in detail. But the Police, after enquiry, advised the parties to settle the matter amicably within themselves being family members as it is a property dispute. But, Defendants herein colluded together and end have deprived the valuable rights of the 1st Plaintiff of her 1/11th equal share in all the immovable properties, jewels and bank deposit. Seeking for partition and mesne profits, the Plaintiffs herein caused a lawyer's notice to the Defendants on 7-3-2012. The Defendants herein neither came forward with any reply thereto, nor did they comply with the demand made in the said notice. Since the 1st Plaintiff is in constructive joint possession of the Schedule mentioned properties as member of the joint family, the 1st plaintiff has filed the suit seeking for partition and separate possession of 1/11th share in the immovable properties, Jewelleries, and the amount lying in the bank account and also from the rental income in the immovable properties.
https://www.mhc.tn.gov.in/judis 7 CS.No.551 of 2012 & TOS.No.31 of 2013
4. The case of the Defendants in Civil Suit, as set out in the written statement, in the suit, is as follows:-
Written statement filed by the Defendants 1 to 4, 6 & 8 The suit itself is not maintainable either on law or on facts, and none of the averments made in the plaint are correct. The plaintiffs have filed the above said vexatious suit with false allegations and the plaintiffs had come before this Hon'ble Court with unclean hands. The 2nd Plaintiff is the husband of the Ist Plaintiff and he has no role over the suit properties and he is not the Legal-Heir of the defendants father and mother while the Suit properties are the absolute properties of our Parents. Further, our mother Mrs. Ponnatchi Ammal and our father Mr. S. Doss executed the Will dated 18.08.1994 in favour of the Defendants herein out of their free will and in sound state of mind. The Plaintiffs are well aware of the execution of the Will dated 18.08.1994 in favour of the Defendants herein by their parents. In view of the Will dated 18.08.1994, the defendants are the owner of the suit properties and Probate proceedings are pending in O.P. No.845 of 2012 and subsequently converted into TOS No.31 of 2013. Hence, the plaintiffs has not locus standi to file the aforesaid partition suit. Further, the plaintiffs have filed the suit after a period of 20 years while the https://www.mhc.tn.gov.in/judis 8 CS.No.551 of 2012 & TOS.No.31 of 2013 said Will is in the year 1994 and the suit itself is barred by limitation. Having fully known about the execution of the Will dated 18.08.1994, the Plaintiffs had come forward before this Hon'ble court with false case and filed the above vexatious suit before this Hon'ble Court. Hence, it is liable to be dismissed.
Written statement filed by the 5th Defendant:
The relationships of the parties to the suit and the 1st plaintiff and the defendants 1 to 10 are children of Late Mrs.Poonatchiammal who died on 12.07.1995 and Mr. S.Doss who died on 09.09.2011 at No.23, Flag Staff Street, Royapuram, Chennai-13. The parents of the respective parties leaving a Will dated 18.08.1994 appointed this defendant as an executor of the Will. In this regard, the defendant had filed O.P. No.845 of 2012 for probate proceedings with the consent of all defendants and the same is converted as TOS No.31 of 2013 on the objection of the plaintiffs. After the defendant had found the said Will dated 18.08.1994, he had informed to all the defendants and the 1st plaintiff. However, the 1st plaintiff lodged a police complaint and threatened the defendants to hand over the share on all the suit properties and should not take the property according to the Will dated 18.08.1994. In the meanwhile, the 1st plaintiff settled the https://www.mhc.tn.gov.in/judis 9 CS.No.551 of 2012 & TOS.No.31 of 2013 properties mentioned in the Will to her husband-2nd plaintiff herein illegally without any right, or title in all the suit properties. According to the Will dated 18.08.1994, the suit schedule properties devolves on the defendants 1 to 10 and the 1st plaintiff's share property is situated at No.14, Periyathambi Street, 2nd Lane, Royapuram, Madras-13 had been given to the 1st plaintiff itself. While being so, the plaintiffs have filed the vexatious suit to destroy the Will of the father and mother. As per the Will dated 18.08.1994, the defendants 1 to 10 are entitled to the suit properties and the plaintiffs do not have any right over the properties. Hence, the suit is liable to be dismissed.
Written statement filed by the Defendants 7, 9, & 10:
The parents of these defendants died intestate at Chennai. The plaintiffs filed the above suit claiming their 1/11 share in the plaint schedule properties owned by the father and mother respectively. After filing of the suit in the month of July 2012, the 5th defendant herein in collusion with his brothers fabricated and forged the signature of the deceased persons i.e. the father and mother of the parties herein created a bogus will dated 18-08-1994. These defendants are contesting https://www.mhc.tn.gov.in/judis 10 CS.No.551 of 2012 & TOS.No.31 of 2013 T.O.S.No.31 of 2013, questioning the bogus WILL. The mother of the parties herein viz, Ponnachi ammal was unable to sign and use her hand even for eating right from 1992. The 5th defendant along with his brother collecting rents from the suit properties and appropriating the same among themselves. These defendants are also entitled to 1/11 share each in the suit properties. Hence, these defendants are paying necessary court fees along with written statement to pass a decree for partition of their 1/11 share each in the plaint schedule properties. Therefore, in the interest of justice, they prayed that this Hon'ble Court may be pleased to pass a decree for partition and mesne profits an prayed for in the plaint and thus render justice.
5. On the pleading of the Civil Suit, the following issues were framed:
“(i) Whether the Will dated 18.08.1994 executed by the parents of the fifth defendant in favour of the fifth defendant, is true, genuine and valid?
(ii)Whether the settlement deeds bearing document nos.588, 590, 637, 696 of 2012 dated 21.02.2012, 21.02.2012, 23.02.2012 and 28.02.2012 respectively, executed by the first plaintiff in favour of the 2nd plaintiff in respect of 1/11th undivided share in the five joint family properties are true, genuine and valid?
https://www.mhc.tn.gov.in/judis 11 CS.No.551 of 2012 & TOS.No.31 of 2013
(iii) To what other reliefs, the parties are entitled to?
6.The case of the Plaintiffs in TOS, is as follows:-
(1) Mrs.PoonatchiAmmal died on 12.07.1995 at No.23, Kodimara Street, Royapuram, Chennai 13 where she was then ordinarily residing possessed of the properties, (2) Mr.S.Doss died on 09.09.2011 at No.23, Flag Staff Street, Royapuram, Chennai 13 where he was then ordinarily residing possessed of the properties of five houses bearing (a) 'A' Schedule property is situated at No.11, Vathiyar Eagappan Street, Royapuram, Madras 600 013, measuring an extent of 2080 Sq.ft., was purchased by a duly registered Sale Deed dated 5th April 1956 bearing Document No.969 of 1956 on the file of the Registrar office, Madras, out of our self acquired funds. (b) 'B' Schedule property is situated at No. 5, Bentlemen Garden Second Lane, Royapuram, Madras 600 013, measuring an extent of 725 Sq.ft., was purchased by first of us by duly registered Sale Deed dated 4th September 1968 bearing Document No.3685 of 1968 on the file of the Registrar office, Madras, out of our self acquired funds of first of us. (c) 'C' Schedule property is situated at No. 7, Kasimanagar First lane, Royapuram, Madras 600 013, measuring an extent of 800 Sq.ft., was purchased by first https://www.mhc.tn.gov.in/judis 12 CS.No.551 of 2012 & TOS.No.31 of 2013 of us by duly registered Sale Deed dated 26th July 1971 bearing Document No.2953 of 1971 on the file of the Registrar office, Madras, out of our self acquired funds of first of us. (d) 'D' Schedule property is situated at No. 5, Guruchedi Third Jane, Royapuram, Madras-600 013, measuring an extent of 1050 Sq.ft., was purchased by first of us by duly registered Sale Deed dated 26th July 1971 bearing Document No.2955 of 1971 on the file of the Registrar office, Madras, out of our self acquired funds of first of us. (e) 'E' schedule property is situated at No. 24/33, A.J, Colony, Second Street, Rayapuratti, Madras-600013 measuring an extent of 800 Sq.ft. was acquired by 1st of us by Registered Settlement Deed dated 19.09.1964 bearing Document No.3898 of 1964 registered in the Sub-Registrar Office, Chengalpet, measuring an extent of 800 Sq.ft. Comprised in R.S.No. 3477/23, and subsequently was allotted as assignment to first of us by the District Collector, Madras by a order dated 7th April 1986, comprised in New R.S.No.3477 /28. The said Mrs. Ponnatchi Ammal and Mr.S.Doss possessed the immovables as stated respectively within the state of Tamil Nadu and within the jurisdiction of this Hon'ble Court. The father and mother left their sons and daughters to succeed their estate. The Mother, Mrs.Ponnatchi Ammal died on 12.07.1995 and the Father, Mr.S.Doss died https://www.mhc.tn.gov.in/judis 13 CS.No.551 of 2012 & TOS.No.31 of 2013 on 09.09.2011 who have possessed the suit schedule properties within the state of Tamil Nadu. The writing hereto annexed now shown to the petitioner and marked with letter "A" is the Last Will and Testament Mrs.Poonatchiammal and Mr.S.Doss and was duly executed at Chennai by them on 18.08.1994 in the presence of the witnesses whose names appear at the foot thereof. The petitioner is the executor named in the said Will and the deceased Mrs. Poonatchiammal is the mother of the petitioner and deceased Mr.S.Doss is the father of the petitioner to carry out the terms of the said will. The following are the next of kin according to Indian Succession Act at the time of their death:
1. D.Richard, son of S.Doss, 56 years [son]
2. D.Vincent, son of S. Doss, 54 years [son]
3. D.Lawrence, son of S. Doss, 52 years [son]
4. D.Victor, son of S. Doss, 50 years [son]
5. D.Johnson, son of S. Doss, 47 years [son]
6. D.Samson, son of S.Doss, 43 years [son]
7. Mrs.Glory, wife of Mr.Manickam, 60 years [daughter)
8. D.Sagayarani, wife of late. Anthony Phelominraj, 45 years (daughter)
9. D.Jansirani, wife of Mr.Peter, 41 years (daughter]
10.D.Maria Selvi, wife of Mr. Nikson, 39 years [daughter]
(ii) Out of the 11 legal heirs, the following are the beneficiaries in respect of immovable properties bequeathed under the Will.
https://www.mhc.tn.gov.in/judis 14 CS.No.551 of 2012 & TOS.No.31 of 2013
1. D.Richard, son of S.Doss, 56 years [son]
2. D.Vincent, son of S. Doss, 54 years [son]
3.D.Lawrence, son of S. Doss, 52 years [son]
4. D.Victor, son of S. Doss, 50 years [son]
5.D.Charles, son of S.Doss, 49 years (son]
6.D.Johnson, son of S. Doss, 47 years [son]
7.D.Samson, son of S.Doss, 43 years [son]
8.D.Sagayarani, wife of late. Anthony Phelominraj, 45 years (daughter)
9.D.Jansirani, wife of Mr.Peter, 41 years (daughter]
10.D.Maria Selvi, wife of Mr. Nikson, 39 years [daughter]
(iii)The amounts of assets which are likely to come into the petitioner's hands does not exceed in the aggregate the sum of Rs.66,50,000/- and the net amount of the said assets after deducting all items which the petitioner is by law allowed to deduct is of the value of Rs.66,44,000/-.
(iv)Both the Attesting Witnesses of the said Will were not alive; the first witness Mr.A.Arputharaj died on 27.7.2008, the second witness Mr.S.A.Doss died on 13.4.1999, hence third party affidavit is filed herein.
(v)The respondents 1 to 6 and 8 to 10 have given their consent probate of the said will. No application has been made to any District court or delegate or to any High court for the probate of any will of the said https://www.mhc.tn.gov.in/judis 15 CS.No.551 of 2012 & TOS.No.31 of 2013 deceased Mrs.Poonatchiammal and Mr.S.Doss or for grant of Letters of Administration with or without the will annexed of their properties and credits. That the petitioner undertakes to duly administer the properties and the credits of the said Mrs.Poonatchiammal and Mr.S.Doss, deceased in any way concerning her will by paying first her debts and then the legacies therein bequeathed so far as the assets will extend, and to make a full and true inventory thereof and exhibit the same in this Court within six months from the date of the grant of probate to the petitioner and also to render to this court a true account of the said properties and credits within one year from the said date.
6. The case of the Defendants in TOS, as set out in the written statement, is as follows:-
Written Statement filed by the 1st defendant:
Testamentary Original Suit is neither maintainable in law nor on facts and the same is liable to be dismissed in limine with exemplary costs. On the date of the alleged WILL. i.e., On 18.08.1994, the plaintiff was only aged 31 years. It is curious to note that the parents of the defendant had allegedly neglected the elders in the family and nominated D Charles https://www.mhc.tn.gov.in/judis 16 CS.No.551 of 2012 & TOS.No.31 of 2013 at the age of 31 years as Executor which clearly establishes that the alleged WILL is fabricated one. Her brothers are not interested in giving the ancestral property to the female members of the family. Her mother, Ponnatchi Ammal was suffering from the nervous disorder and stiffened fingers from the year 1990. There was no finger movement right from 1990 for which she was treated in the Hospital. Further, Ponnatchi Ammal was not able to do household jobs and she needed help from the others even for her day to day affairs from 1992 onwards. The defendant's mother Ponnatchi ammal was left uncared for and unable to do any activities on her own. It is rather astonishing to allege that the defendant's mother Ponnatchi Ammal allegedly executed a Joint WILL dated 18.08.1994 along with her husband. The signature found in the WILL is not the signature of her parents and the WILL had been fabricated only after the defendant herein filed a suit for partition and separate possession before this Hon'ble Court in C.S.No.551 of 2012 on 16.07.2012. The alleged attesting witnesses in the alleged WILL conveniently included the dead persons. The signatures were collectively forged in the alleged WILL including the attesting witnesses. The Attesting Witnesses are the close relatives who used to oblige the plaintiff and her brothers and they died https://www.mhc.tn.gov.in/judis 17 CS.No.551 of 2012 & TOS.No.31 of 2013 long back. The defendant herein verified the address shown by the advocate in the alleged WILL dated 18.08.1994 but no such advocate is available in the said address. The petitioner along with his brother promised to divide the properties equally after the death of our father. If the alleged WILL is true and genuine, they would not have offered for partition after sometime. Further, they have not produced the copy of the alleged WILL before the police enquiry. In the meanwhile, the defendant herein executed Settlement Deeds on 21.02.2012, 23.02.2012 and 28.02.2012 settling her undivided 1/11 share in respect of 5 immovable properties in favour of her husband. Further the defendant caused a legal notice on 07.03.2012. However, he has not chosen to send any reply to the said notice. Thereafter based on the said notice the defendant along with her husband filed C.S.No.551 of 2012 on 16.07.2012 claiming their 1/11 undivided share in the Joint Family Properties. Thereafter the petitioner herein fabricated the alleged WILL dated 18.08.1994. If the alleged WILL is true and genuine, they would have immediately replied the lawyer's notice. The father of the defendant during his life time never willing to divide the properties in favour of 7 sons excluding the daughters and that is the reason why he was not taking any steps for partition of Joint Family https://www.mhc.tn.gov.in/judis 18 CS.No.551 of 2012 & TOS.No.31 of 2013 Properties during his life time and never executed the alleged WILL dated 18.08.1994 along with his wife. Therefore, in the interest of Justice the T.O.S. No.31 of 2013 filed by the plaintiff claiming probate in respect of the fabricated alleged joint WILL and Testament dated 18.08.1994 is liable to be dismissed.
Written Statement filed by the defendants 2 to 4:
The alleged unregistered WILL is fabricated one and the petitioner is not entitled to any relief in the T.O.S and it may be dismissed in limini. At the time of death of our father, neither the petitioner herein nor any of the defendants brother speaks about the alleged WILL dated 18.8.1994 executed by the mother and father of the defendants jointly. After the cremation of our father, the petitioner and other brother promised to divide the property equally. However, the 1st defendant herein quarrelled with our brother and instituted a suit for partition before this Hon'ble Court. After the suit filed by the 1st defendant, the petitioner one our brothers forged the signatures of our father & mother respectively and created a bogus WILL, to deprive the valuable and equal right of the properties by these defendants. Our brother Charles and others requested us to sign certain papers in English stating that the same is required for dividing the property https://www.mhc.tn.gov.in/judis 19 CS.No.551 of 2012 & TOS.No.31 of 2013 of our joint family into 11 equal shares and allot one such share to us including the rental collections. Believing the representations, these defendants signed the papers typed in English without reading and knowing the contents of the same. None of the defendants not able to read and understand English except number three of us, who is a graduate. In the first week of July, 2013, these defendants demanded their share in the properties of the joint family as well as rental income, from the petitioner herein namely D.Charles who used to scold these defendants by using filthy language and threatened these defendants with dire consequences. Later on, these defendants contacted the 1st defendant herein who in turn furnished the copies of the alleged WILL executed by our mother and father on 18.08.1994. These defendants mother unable to sign right from the year 1992 and was bed ridden. There was absolutely no chance for the mother of these defendants to execute and sign a WILL on 18.08.1994. Further, these defendants father also never executed any WILL and the signature in the alleged WILL dated 18.08.1994 is not the signature of the Father of these defendants. The alleged signatures of the Testator & Testatrix found in the alleged WILL dated 18.8.1994 is a forged one. The petitioner and his brother joined together took the jewelleries, valuables https://www.mhc.tn.gov.in/judis 20 CS.No.551 of 2012 & TOS.No.31 of 2013 and cash kept by our father at the time his death on 09.09.2011. The consent affidavit of these defendants dated 09.11.2012 obtained fraudulently by misrepresenting the facts is not binding on us. Hence, this Hon'ble Court may be leased to ignore the earlier consent affidavit dated 09.11.2012, since the same were signed without knowing the contents of the same. The petitioner herein is not permitted to obtain probate based on the forged and fabricated WILL dated 18.08.1994. Hence, the TOS is liable to be dismissed. with exemplary cost.
7. On the pleading of the TOS, the following issues were framed:
(i) Whether Whether the Joint Will allegedly executed by the Testator and Testatrix is genuine and valid?
2.To what other reliefs, the parties are entitled to?
8. On the side of the plaintiff in C.S. No.551 of 2012, Ex.P1 to Ex.P15 were marked and No exhibits are marked on the side of the defendants and in TOS No.31 of 2013, Ex.P1 to Ex.P9 were marked on the side of the plaintiff and Ex.D1 to D3 were marked on the side of the defendants. P.W1 to PW3 were examined and DW1 was examined in TOS. https://www.mhc.tn.gov.in/judis 21 CS.No.551 of 2012 & TOS.No.31 of 2013
9. Heard both sides and perused the material available on records in both suits.
10.The learned counsel for the plaintiffs in CS and 1st defendant in TOS would submit that the Will dated 18.08.1994 has been created and fabricated by the plaintiff in TOS. The Mother was suffering from nervous disorder and stiffened fingers since 1990 and was treated for it in the hospital. Hence, she would not have signed in the Will executed in the year 1994. The 1st defendant does not have proper evidence to prove the Will as Genuine since the Attesting Witnesses are said to have died and in the evidence of P.W3, she has deposed the year of death of her father in the year 1972 and the said Will ought to have been executed before 1972. However, the Ex-P3 -Will dated 18.08.1994 is said to have been executed in the year 1994 only. The alleged attesting witnesses in the alleged WILL conveniently included the dead persons who are the close relatives to oblige the plaintiff and her brothers.
https://www.mhc.tn.gov.in/judis 22 CS.No.551 of 2012 & TOS.No.31 of 2013
11. It has been further submitted that the Plaintiffs in the Civil Suit verified the address shown by the advocate in the alleged WILL dated 18.08.1994 but no such advocate is available in the said address. After the death of her father, it has been accepted to divide the suit schedule properties equally among the legal heirs. As it is denied, a legal notice on 07.03.2012 was sent. However, no reply had been sent to the said notice. Thereafter based on the said notice the defendant along with her husband filed C.S.No.551 of 2012 on 16.07.2012 claiming their 1/11 undivided share in the Joint Family Properties. Thereafter the alleged WILL dated 18.08.1994 has been fabricated. If the alleged WILL is true and genuine, they would have immediately replied the lawyer's notice sent by the plaintiff in Civil suit.
12.The learned counsel would further submit that the father namely Late Doss, during his life time never willing to divide the properties in favour of 7 sons excluding the daughters and that is the reason why he was not taking any steps for partition of Joint Family Properties during his life time and never executed the alleged WILL dated 18.08.1994 along with his https://www.mhc.tn.gov.in/judis 23 CS.No.551 of 2012 & TOS.No.31 of 2013 wife. Therefore, in the interest of Justice the T.O.S. No.31 of 2013 filed by the plaintiff claiming probate in respect of the fabricated alleged WILL and Testament dated 18.08.1994 is liable to be dismissed and seeks one of the share in the suit schedule properties as mentioned in the plaint in the Civil Suit.
13. The learned counsel for the plaintiffs in TOS and 1st defendant in CS would submit that the Will dated 18.08.1994 has been executed by his parents appointing the as an Executor to execute the Will for the beneficiaries. As per the Will dated 18.08.1994, out of 11 legal heirs, one of the legal heir namely, Glori Manikkam, who is the 1st defendant herein have not be given any beneficiary in the Will. Hence, he seeks to probate the Will dated 18.08.1994 as an Executor according to the terms of the said Will.
Issue No.1 and 2 in C.S. and Issue No.1 and 2 in TOS:
14. It is admitted fact that there is no dispute in the relationship between the plaintiff and the defendants who are the legal heirs of Late. Ponnatchiammal and Late. Doss who died on 12.05.1995 and 09.09.2011 https://www.mhc.tn.gov.in/judis 24 CS.No.551 of 2012 & TOS.No.31 of 2013 respectively. The said suit schedule properties in the Civil Suit are inherited properties from their ancestor and not self acquired properties.
15. In so far as the Ex.P3-Will dated 18.08.1994 is concerned, even though the plaintiff in TOS has stated in the plaint itself that attesting witnesses were died, he is bound to prove that by way of legal heirs of the Attesting Witnesses. Even though the L.Rs of the Deceased attesting Witnesses, ie. P.W.2 and P.W3 were brought into the Box, P.W.2 who is the daughter of 2nd attesting witness, was not examined after 28.08.2015 and after nearly eight years, P.W.3 who is the daughter of A.Arputharaji- the 1st attesting witness, was examined. In the evidence of P.W3, she has deposed that her father died in the year 1972 and during her cross examination, she was questioned that since her father died in the year 1972, the Will ought to have been executed before 1972, for which she replied Yes. But, the Will dated 18.08.1994 is said to have been executed in the year 1994. Hence, it shows that P.W3 has not proved the attesting signature in the said Will in the manner known to law. In the event of failure of cross examination of Attesting Witnesses since they were died, the plaintiff ought to put any individual witnesses who is acquainted with https://www.mhc.tn.gov.in/judis 25 CS.No.551 of 2012 & TOS.No.31 of 2013 the execution of the said Will dated 18.08.1994 into the Box to prove the Will dated 18.08.1994. Further, even if the Will dated 18.08.1994 is said to have been drafted by one Advocate, he has not been examined and further, his enrolment No. is not found in the Will. Hence, it is also creates suspicion.
16.Further, on a perusal of the records, it could be seen that after the death of his father, the plaintiff in TOS has not whispered anything about the execution of Will dated 18.08.1994 while the defendant, Glory approaching him seeking for partition of the suit schedule properties and denied for the same. Hence, the defendant made the complaint against the plaintiff before the Police Station wherein also he has not whispered about the said Will. Further, while there are elders than the petitioner as legal heirs, the parents have executed the Will dated 18.08.1994 appointing the plaintiff aged about 31 years as executor which creates suspicion.
17. Further, the Plaintiff has not given any reply to the Notice dated 07.03.2012 sent by her Sister, namely the plaintiff in the Civil suit. While there was a dispute between the plaintiff in the Civil suit, the https://www.mhc.tn.gov.in/judis 26 CS.No.551 of 2012 & TOS.No.31 of 2013 plaintiff in TOS has not come forward on time to file O.P seeking to probate the Will. Further, the said O.P. has been filed after filing the Civil Suit. Hence, it creates suspicion about the execution of the Ex.P3-Will. Further, even though it has been stated that the consent affidavit has been given by other legal heirs, no such documents have been found in the bundle and in the Written statement filed by the defendants in TOS, they have stated that the consent affidavit dated 09.11.2012 has been obtained fraudulently by misrepresenting the facts.
18.In the suspicious circumstances, the said Will dated 18.08.1994 cannot be considered as Genuine and valid. Accordingly, Issue No.1 is answered against the plaintiff in TOS and in favour of the Plaintiff in Civil Suit. Further, the plaintiff in TOS is not entitled to grant the Probate of the Will dated 18.08.1994 annexed and accordingly, Issue No.2 is answered against the plaintiff in TOS.
19. Since the plaintiff in TOS failed to prove the Will dated 18.08.1994, as a legal heir of Late. Poonachiammal and Late.Doss, the Plaintiff in Civil Suit is entitled to 1/11th share in the suit schedule https://www.mhc.tn.gov.in/judis 27 CS.No.551 of 2012 & TOS.No.31 of 2013 properties as stated in the plaint. While the suit Schedule properties are Joint undivided properties and are not divided by the legal heirs, the plaintiff in Civil Suit cannot execute the Settlement Deeds in favour of her husband ie.2nd plaintiff in the Civil suit. Hence, the various Settlement Deeds executed by the Plaintiff in favour of the 2nd plaintiff is not valid and it may be revoked. Accordingly, the Issue No.2 is answered. As the plaintiff is one of the legal heir of Late. PoonachiAmmal and Late.Doss, she is entitled to one of the share in the Suit schedule properties. Hence, she is entitled to 1/11th share in the suit schedule properties. Accordingly, Issue No.3 is answered in favour of the plaintiff in Civil Suit.
20.In the result, the Civil Suit in C.S. No.551 of 2012 is partly decreed to the aforesaid extent and as a sequel, the Testamentary Original Suit is dismissed. No costs.
24.01.2024 Index:Yes/No Web:Yes/No Speaking/Non Speaking Lbm https://www.mhc.tn.gov.in/judis 28 CS.No.551 of 2012 & TOS.No.31 of 2013 List of Witnesses Examined on the side of the Plaintiff in TOS:-
1. P.W.1 – Mrs. Glory Manickam List of Witnesses Examined on the side of the Plaintiff in CS:-
1. P.W.1 – Mr. D. Charles
2. P.W.2 – Mrs. A. Sagaya Mary,
3. P.W.3 – Mrs. J. Kanchana List of Witnesses Examined on the side of the Defendants in TOS:-
1.D.W.1 – Mrs. Glory Manickam List of Exhibits Marked on the side of the Plaintiff/Plaintiffs in CS:-
1.Ex.P1 is the certified copy of of the settlement deed dated 05.04.1956
2.Ex.P2 is the certified copy of of the settlement deed dated 19.9.1964
3. Ex.P3 is the certified copy of of the settlement deed dated 26.07.1971
4.Ex.P4 is the certified copy of of the settlement deed dated 26.07.1971
5.Ex.P5 the computer downloaded copy of death certificate of Ponnachiammal dated 06.07.2011.
6.Ex.P6 is the computer downloaded copy of death certificate of S.Doss dated 06.10.2011.
7. Ex.P7 is the legal heir certificate issued by Tahsildar, Tondiarpet dated 23.11.2011.
https://www.mhc.tn.gov.in/judis 29 CS.No.551 of 2012 & TOS.No.31 of 2013
8. Ex.P8 is the office copy of the complaint sent to the Commissioner of Police dated 13.12.2011 (marked subject to objection) 9 and 10. Ex.P9 & Ex.P10 is the settlement deed Doc. No.588/12 and 590/12 dated 21.2.2012.
11.Ex.P11 is the Settlement deed Doc.No. 637/12 dated 23.02.2012
12. Ex.P12 is the Settlement deed Doc. No.676/2012 dated 23.02.2012
13. Ex.P13 is the legal Notice from plaintiff to defendant dated 7.3.2012
14. Ex.P14 is the Acknowledgement cards from defendants 5 and 8 dated 15.3.2012
15. Ex.P15 (Series) are the unserved copies of returned covers of the legal notice sent to defendants 1 to 4, 6.7.9, and 10. List of Exhibits Marked on the side of the Plaintiff/Plaintiffs in TOS:-
1.Ex.P1 is the original death certificate of Ponmachiammal dated 06.07.2011.
2.Ex.P2 is the original death certificate of S. Doss dated 06.10.2011.
3. Ex.P3 is the original Will dated 18.08.1994 executed by Ponnachiammal and Mr. S. Doss. (Ex.P3 Will is safe custody.) .
https://www.mhc.tn.gov.in/judis 30 CS.No.551 of 2012 & TOS.No.31 of 2013
4.Ex.P4 is the legal heir certificate of S. Doss and Ponnachiammal.
5.Ex.P5 the original affidavit of J. Kanchana.
6.Ex.P6 is the original affidavit of Mrs. A. Sagaya Mary identifying the signature of the deceased S.A. Doss who is one of the witness of the Will.
7. Ex.P7 (Series) are original consent affidavits (6 Nos) given by respondents I to 6 in OP No.845/2012
8. Ex.P8 is the certified copy of the sale deed dated 21.02.1964 bearing No.685/1964, purchased by Mrs. Ponnatchiammal in the name of Mrs. Glory Manickam the 1" defendant.
9. Ex.P9 is the copy of the legal notice dated 22.09.1994 issued to Mrs. Gilory Manickam List of Exhibits Marked on the side of the Defendant/Defendants in TOS:-
1. Ex.D1 is the original Regular Loan Mortgage Deed dated 12.07.1980.
2.Ex.D2 is the photocopy of the Lawyer's Notice dated 07.03.2012.
3.Ex.D3 is the first page signature of settlement deed.
24.01.2024 https://www.mhc.tn.gov.in/judis 31 CS.No.551 of 2012 & TOS.No.31 of 2013 A.A.NAKKIRAN, J.
Srcm/Lbm Pre-Delivery Judgement in CS.No.551 of 2012 and TOS No.31 of 2013 24.01.2024 https://www.mhc.tn.gov.in/judis