Madras High Court
Rajesh M.Mehta vs Indumathi (Died) on 25 July, 2022
Author: A.A.Nakkiran
Bench: A.A.Nakkiran
TOS.No.25 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 19.07.2022
PRONOUNCED ON : 25.07.2022
CORAM:
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
TOS.No.25 of 2011
Rajesh M.Mehta Plaintiff
Vs
1. Indumathi (died)
2. Murugeswaran Defendants
Prayer:- This Testamentary Original Suit has been filed, under Sections 232
and 276 of the Indian Succession Act, for the relief as stated therein.
For Plaintiff : Mr.K.Mahendran
For Defendants : Mr.Avinash for M/s.V.Raghavachari
JUDGEMENT
1. This Testamentary Original Suit has been filed, under Sections 232 and 276 of the Indian Succession Act for the grant of Letters of Administration with the Will annexed in favour of the Plaintiff, as the sole legatee under the Will of the deceased.
2. The case of the Plaintiff is that the Plaintiff is the son of late Manilal B.Mehta. The 1st Defendant is the wife of late Chimanlal, who died on 24.01.1994, at the premises at No.167, Mint Street, Chennai-79, where he was ordinarily residing. The immovable property, which is a vacant land, measuring 1 acre 17 cents, comprised in S.No.1471/15B3 situated in Lakshmipuram, 1/8 https://www.mhc.tn.gov.in/judis TOS.No.25 of 2011 Madhavaram Village, Ambattur Taluk, Tiruvallur District, is the self acquired property of the said deceased. The deceased had executed a Will dated 22.01.1994, in the presence of the witnesses. The father of the Plaintiff is the friend of the deceased Testator, who treated the Plaintiff as his son and the Plaintiff has been taking care of the deceased Testator for 10 years. The 1st Defendant, who is the wife of the deceased, deserted him within six months of the marriage. The younger brother of the deceased Testator predeceased him. The Plaintiff is the sole legatee/ beneficiary of the said Will. The Plaintiff was of the view that the since the property is situated outside the limits of Chennai, the Will need not be probated. Thereafter, he was advised that since the Will was executed at Chennai, the Will should be probated and hence, the suit has been filed with a delay of 15 years. The amount of assets, which is likely come into the hands of the Plaintiff does not exceed in the aggregate sum of Rs.1,25,01,000/- 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.1,25,00,000/-. The Plaintiff undertakes to duly administer the property and the credits of the said deceased 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 Probate, with the Will annexed to the Plaintiff and also to render a true account of the said property and credits within one year 2/8 https://www.mhc.tn.gov.in/judis TOS.No.25 of 2011 from the said date. No application has been made to any District Court or delegate or to 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 properties and credits. Hence, this Testamentary Original Suit suit has been filed for the grant of Letters of Administration.
3. The case of the Defendants, in a nutshell, as set out in the written statement, filed by the 2nd Defendant is that the 1st Defendant is his predecessor in title and she was the absolute owner of the land, measuring 1 acre and 17 cents, comprised in S.No.1471/15B3, Madhavaram Village, Tiruvallur District. The Testator Chimanlal died on 24.01.1994 two days after the execution of the alleged Will dated 22.01.1994, which would create a suspicion about the execution of the Will. The Petition for probate was filed after a period of more than 15 years and hence, it is barred by limitation. As per the legal heirship certificate, dated 14.04.2004, the 1st Defendant (since deceased) was the sole legal heir of the deceased Testator Chimanlal. The 1st Defendant has also filed an affidavit, stating that the Will is not genuine. In 2006, the 1st Defendant had sold the Schedule property to the 2nd Defendant and he is the absolute owner of the property and is in possession. The Plaintiff had executed a settlement deed, dated 17.04.20008 in favour of his wife and it is a concocted document. The Plaintiff has not filed an affidavit of the attesting witnesses. The delay has not been explained. There are suspicious circumstances surrounding the alleged Will. The suit suffers from 3/8 https://www.mhc.tn.gov.in/judis TOS.No.25 of 2011 suppression and mala fides. Hence, this TOS is liable to be dismissed.
4. On the pleadings of the parties, the following issues were framed:-
(1) Whether the Will of Chimanlal, dated 22.01.1994 is genuine?
(2)Whether the Plaintiff is entitled to obtain Letters of Administration pursuant to the Will, dated 22.01.1994?
5. There are two Defendants in the suit and the 1st Defendant died. On the side of the Plaintiff, Ex.P1 was marked and PW.1 was examined.
6. This Court heard the submissions of the learned counsel on either side. Issue Nos.1 and 2:-
7. The learned counsel for the Plaintiff has submitted that Chimanlal died on 24.01.1994 at No.167, Mint Street, Chennai-79, where he was ordinarily residing with the Plaintiff herein. The property, which is a vacant site, measuring an extent of 1 acre 17 cents, comprised in S.No.1471/15B3, situated in Lakshmipuram, Madhavaram Village, Ambattur Taluk, is the self acquired property of the deceased. He executed a Will in favour of the Plaintiff on 22.01.1994 in the presence of the witnesses and he has not appointed any executor. He is the son of Manilal B.Mehta, who was the friend of the Testator. The Testator married Indumathi and after the marriage, she deserted him within six months. The Plaintiff is the sole legatee/ beneficiary of the Will. The Plaintiff was of the view that since the property is situated outside the limits of Chennai, the Will need not be probated. So this is the reason for the delay in filing the petition for probate. Therefore, he prays for allowing this suit.
4/8 https://www.mhc.tn.gov.in/judis TOS.No.25 of 2011
8. Per contra, the learned counsel for the Defendants would submit that the suit was filed suppressing the material facts. Chimanlal married Indumathi and they were living upto 24.01.1994 when Chimanlal passed away. She became the sole and absolute owner of the estate. The Will sought to be probated is dated 22.01.1994, which is just merely two days prior to the death of Chimanlal. It creates a suspicion. He filed this petition after a period of 15 years and this also creates a suspicion. The suit is barred by limitation. The Will is not genuine and it is a forged one and not duly executed and attested. The 1st Defendant had sold the property and executed a sale deed dated 31.01.2006 in favour of the 2nd Defendant and he is the absolute owner of the property and he is in possession. The Plaintiff is aware of this fact and executed a settlement deed in favour of his wife on 17.04.2008, bearing Document No.3003 of 2008. The Plaintiff suppressed this fact and belatedly filed this suit. The delay has not been properly explained. There is absolutely no bona fide in the petition and it suffers from suppression and mala fides and hence, it is liable to be dismissed.
9. This Court considered the submissions of the learned counsel on either side and also perused the materials available on record.
10.PW.1 has deposed that Chimanlal died on 24.01.1994. At the time of his death, he was residing at No.167, Mint Street, Chennai-79, where he was ordinarily residing with him. The immovable property is a vacant site, measuring an extent of 1 acre and 17 cents comprised in S.No.1471/15B3, 5/8 https://www.mhc.tn.gov.in/judis TOS.No.25 of 2011 situated in Lakshmipuram, Madhavaram Village, Ambattur Taluk, Tiruvallur District and it is the self acquired property of the deceased Chimanlal. The said Will was duly executed on 22.01.1994 in the presence of the witnesses. No executor has been appointed. He is the son of late Manilal B.Mehta, who was the friend of the Testator. The Testator married Indumathi. Within six months of the marriage, she deserted the Testator. Resiklal, the younger brother of the Testator predeceased the Testator. Hence, there is no legal heir to the Testator. He is the sole legatee/beneficiary of the Will executed by Chimanlal. He was of the view that since the property is situated outside the city limits, the Will need not be probated. But, thereafter, he was advised that since the said property now comes within the city limits of Chennai, the said Will needs to be probated.
11.In this case, the Plaintiff has not filed any document that Chimanlal was living with him. He has not filed any medical records that he treated Chimanlal. He, in his chief, has deposed as under:-
“Q90: Who were the witnesses to the document?
A: One Mr.Narotham U.Sheth and the other one is Mr.Harshad D.Vohra.”
12.Section 68 of the Indian Evidence Act read as follows:-
“68. Proof of execution of document required by law to be attested:- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
13.In this case, no attestor has been examined to prove the Will. Hence, the Plaintiff has not proved the Will by examining the attesting witnesses. The 6/8 https://www.mhc.tn.gov.in/judis TOS.No.25 of 2011 reason given by the Plaintiff for the delay is not acceptable. The Plaintiff has not proved his case by oral and documentary evidence. Hence, the Will dated 24.01.1994 is not proved by oral and documentary evidence. Accordingly, issue no.1 is answered against the Plaintiff and hence, he is not entitled to obtain Letter of Administration and accordingly, issue no.2 is also answered against the Plaintiff.
14.In fine, this Testamentary Original Suit is dismissed. No costs.
25.07.2022 Index:Yes/No Web:Yes/No Speaking/Non Speaking Srcm 7/8 https://www.mhc.tn.gov.in/judis TOS.No.25 of 2011 A.A.NAKKIRAN, J.
Srcm Pre-Delivery Judgement in TOS.No.25 of 2011 25.07.2022 8/8 https://www.mhc.tn.gov.in/judis