Madras High Court
N.Chandrasekaran vs N.Rangabashyam on 16 May, 2024
TOS.No28 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 21.12.2023
PRONOUNCED ON : 16.05.2024
CORAM:
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
TOS.No.28 of 2020
N.Chandrasekaran, ...Plaintiff
...Vs...
1.N.Rangabashyam,
2.N.Vinayagam alias N.Vedha Vinayagam
3.S.K.Vasanthi,
4.K.Mohanapriya,
5.G.Hariharan,
6.G.Ramachandran,
7.G.Sasikala,
8.G.Kandaswamy,
9.G.Kamatchi,
10.Valli,
11.Deivanai ...Defendants
Prayer:- 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 Plaintiff : M/s.Tamizh Selvi
1/20
https://www.mhc.tn.gov.in/judis
TOS.No28 of 2020
For Defendants : Mr.R. Ragavendran for D1 to D9
(For M/s.R.Murali)
: D10 & D11 are set exparte
*******
JUDGMENT
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, to grant of Probate.
2. The case of the Plaintiff is as follows:-
(i) The Plaintiff, the defendants 2 & 3 are the sons of the deceased P.Nataraja Naicker alias P.Natarajan. The 4th defendant is the Daughter in Law, the defendants 5, 6, 9, & 11 are the Grand Daughters, and the defendants 7, 8 & 10 are the Grand Sons of the deceased P.Nataraja Naicker alias P.Natarajan who died on 02.12.2002 at bearing Old No. 140, New No.347, Paper Mills Road, Peravallur, Chennai- 600 082 within the state of Tamil Nadu and within the jurisdiction of this Hon'ble Court. The said WILL was duly executed P.Nataraja Naicker alias P.Natarajan, registered as Doc.No. 114 of 1996 in the SRO, Sembium, in the presence of witnesses whose names appear at the foot thereof.
(ii)The deceased P.Nataraja Naicker alias P.Natarajan bequeathed the 2/20 https://www.mhc.tn.gov.in/judis TOS.No28 of 2020 said property to his wife Shenbagavalli who shall be entitled to all his estate both movable and immovable property and his entire house, ground and premises bearing Old No.140, New No.347, Paper Mills Road, Peravallur, Chennai- 600 082 and effects thereof during her life time including the operation of his Bank Account, if any, as life time legatee of his WILL and that after her life time his four sons ie, 1.N.Chandrasekran,
2.N.Kalayanasundram, 3.N.Rangabashyam, 4.N.Vinayagam @Vedhavinayagam, shall be entitled absolute and forever all that bequeathed above to his said wife as her life time estate. He has appointed one of his sons named N.Chandrasekaran, the Petitioner herein as Executor in the said WILL. The deceased P.Nataraja Naicker alias P.Natarajan has not made any provision for his eldest son N.Gnanasambandan under the said WILL.
(iii).The writing here undo annexed now shown to the Petitioner and marked 'A' is the last WILL and Testament of the said P.Nataraja Naicker alias P.Natarajan and was duly executed by him at Chennai on 15.07.1996 in the presence of the witnesses whose names appear at the foot thereof. The said WILL is a registered document. The petitioner is filing affidavit of one of the attesting witnesses who personally knew the deceased P.Nataraja 3/20 https://www.mhc.tn.gov.in/judis TOS.No28 of 2020 Naicker alias P.Natarajan and his signature in the said WILL.
(iv)That Shenbagavalli, wife of P.Nataraja Naicker alias P.Natarajan died intestate on 02.03.2017. One of the son of P. Nataraja Naicker alias P.Natarajan, N.Kalayanasundram died intestate on 28.07.2018, consequent to his death, the 3rd to 5th Respondents mentioned below are equally to inherit his share in the property mentioned in the WILL.
1. S.K. Vasanthi, (3rd Respondent) Wife of N.Kalyanasundaram
2. K.Mohanapriya (4th Respondent)Daughter of N.Kalyanasundaram
3. K.Mohanasundari, (5th Respondent)Daughter of N.Kalyanasundaram
(v)That N.Gnanasambandan, eldest son of P.Nataraja Naicker alias Natarajan died on 04.09.2000 leaving behind his wife G.Sundari, three sons, two daughters, ie., G.Hariharan, G.Ramachandran, G.Sasikala, and G.Kamatchi, and that G.Sundari wife Gnanasambandan died 29.03.2007.
(vi). That the next kin and kith of the deceased P.Nataraja Naicker alias P.Natarajan, and N.Kalayanasundram are 1. N.Chandrasekaran (Petitioner herein)-Son, 2. N.Rangabashyam (1st Respondent herein)-Son,
3. N. Vinayagam alias N. Vedha Vinayagam, (2nd Respondent herein)- Son, 4. S.K.Vasanthi W/o.Late.N.Kalyanasundarm (3rd Respondent herein)-Daughter in-law, 5. K.Mohanapriya D/o.Late.N.Kalyanasundarm 4/20 https://www.mhc.tn.gov.in/judis TOS.No28 of 2020 (4th Respondent herein)-Grand Daughter, 6. K.Mohanasundari, D/o.Late.N.Kalyanasundarm (5th Respondent herein)-Grand Daughter, 7. G. Hariharan, S/o.Late.N.Gnanasambandan (6th Respondent herein)-Grand Son, 8.G. Ramachandran, S/o.Late.N.Gnanasambandan (7th Respondent herein)-Grand Son, 9. G.Sasikala, S/o.Late.N.Gnanasambandan (8th Respondent herein) -Grand Daughter, 10. G.Kandaswamy, S/o.Late.N.Granasambandan (9th Respondent herein)-Grand Son, 11. G.Kamatchi, S/o.Late.N.Gnanasambandan (10th Respondent herein)- Grand Daughter.
vii). That after the life time of Shenbagavalli, the sons of P.Nataraja Naicker alias Natarajan are entitled to inherit the property as per the WILL dated 15.07.1996 and after the death of one of his sons ie N.Kalayansundaram, the Respondents 3 to 5 are entitled to inherit his share equally as per Hindu Succession Act. All the beneficiaries under the WILL of the deceased are aware of the existence of the WILL. All the next kith and kin of deceased P.Nataraja Naicker alias P.Natarajan other persons interested are impleaded as parties in the WILL and there is no other next kith and kin or other persons to the WILL to be impleaded. The parents of the deceased P.Nataraja Naicker alias Natarajan viz. Poongavanam and 5/20 https://www.mhc.tn.gov.in/judis TOS.No28 of 2020 Nagammal predeceased him.
(viii) The amount of assets, which is likely come into the hands of the Plaintiff does not exceed in the aggregate sum of Rs. 1,55,00,000/- 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.1,55,00,000/-. The petitioner undertakes to duly administer the property and the credit 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 Plaintiffs and also to 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 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 has been filed, seeking the reliefs, as stated above.
3.The case of the Defendants D1 to D9, as set out in the written 6/20 https://www.mhc.tn.gov.in/judis TOS.No28 of 2020 statement, is as follows:-
(i)It is false that late P.Natarajan executed Will dated 15.07.1996 registered as Doc. No.114 of 1996 in the office of Sub Registrar, Sembium and it is also false that the Schedule Property was bequeathed to his wife late Shenbagavalli, who was entitled to all his estate both movable and immovable property including the operation of his bank account during her lifetime as lifetime legatee and after her lifetime, the Plaintiff, Defendants Nos. 1 & 2 and N.Kalayanasundram. Originally the schedule properties and other properties belonged to one Mrs.Nagamammal, who is the mother of late Mr.P.Natarajan Naicker @ P.Natarajan and the said Mrs. Nagamammal died intestate leaving behind 1.Mr.P.Natarajan Naicker @ P.Natarajan, 2.P.Veeraraghava Naicker & 3.P. Govindaminal. The estates of the said Mrs.Nagamammal were bifurcated among the legal heirs in and by a Partition Deed dated 07.07.1962 registered as Doc. No.2270 of 1962 and in the said partition, late P.Natarajan was allotted with the Schedule Property, who was in absolute possession and enjoyment of the same.
(ii)The late P.Natarajan resided in the Schedule Property along with his family for several decades. After marriage, 1. Valli and 2. Deivanai, Defendants Nos. 10 & 11 moved along with their husband and 7/20 https://www.mhc.tn.gov.in/judis TOS.No28 of 2020
1.Kalayasundaram, 2.Vedhavinayagam, 2nd Defendant and
3.Gnansambandan resided separately with their family. Whereas, the 1st Defendant and the Plaintiff herein continued to co-habitate in the Schedule Property along with their parents ie. late P.Natarajan Naicker @ P.Natarajan and late Shenbagavalli. The 1st Defendant and his family resided in a portion of the Schedule Property and the Plaintiff and his family resided with their parents ie. late P. Natarajan Naicker @ P. Natarajan and late Shenbagavalli in a separate portion of the Schedule Property. The said late P.Natarajan Naicker @ P.Natarajan and late Shenbagavalli were often visited by the Defendants, Kalayanasundaram and Gnansambandan, who collectively took care of every need of the late P.Natarajan Naicker @ P.Natarajan and late Shenbagavalli. Though the Defendants, Kalayanasundaram and Gnansambandan were living separately but still, had a family bond with late P.Natarajan Naicker @ P.Natarajan and late Shenbagavalli. During the lifetime of the late P.Natarajan @ P.Natarajan Naicker, he would always repeat and announce that the Schedule Property is ancestral and after his lifetime, the schedule property and other articles must be divided equally among his sons and daughters, which was also endorsed by his wife late Shenbagavalli. The 8/20 https://www.mhc.tn.gov.in/judis TOS.No28 of 2020 said late P.Natarajan was prone to various illnesses at the evening of his life. The Defendants took care of the late P.Natarajan @ Natarajan Naicker.
Due to the prolonged illness and old age, he was not in a stable state of mind and always needed the assistance of another to carry out his day to day affairs. The said late P.Natarajan was unable to recognise and recollect any persons. Hence, the defendants were taking abundant care of late P. Natarjan @ P. Natarajan Naicker, who expired on 02.12.2002. After the expiry of late P. Natarajan, the defendants sought for partition of the estates of late P.Natarajan @ Natarajan Naicker but the same was refused by the Plaintiff herein citing one or other reasons. The said late. Mrs Shenbagavalli also advised Plaintiff to agree to the partition but the same was refused by Plaintiff. Hence, on the said dispute, the 1st Defendant along with his mother late Shenbagavalli moved out of the Schedule Property and the said late Shenbagavalli started to reside with the 1st Defendant in the aforesaid address. Likewise, Plaintiff moved out of the Schedule Property and started to reside in his above mentioned address. The 1st Defendant alone took care of his mother late Shenbagavalli till her death and Plaintiff neither visited nor supported his mother late Shesbagavalli till her death. After the demise of late Mrs. Shenbagavalli, 9/20 https://www.mhc.tn.gov.in/judis TOS.No28 of 2020 the Defendants proposed for partition of the schedule property but the Plaintiff refused the same. At the said juncture, Plaintiff claimed that the said late Mr.P.Natarajan has executed a WILL dated 15.07.1996 but refused to divulge any information of copies of the same. Hence, the Defendants sought legal advice for the partition of the Schedule Property and sniffing the said fact, the Plaintiff herein hurriedly has filed the present plaint for probate before this Hon'ble Court. The WILL dated 15.07.1996 was not executed by late P.Natarajan @ P.Natarajan Naicker and the same was created by the Plaintiff herein to swallow the Schedule Property for his personal gain. During his lifetime, the late P.Natarajan never whispered about the execution of any WILL to any person and even to his wife late Shenbagavalli, who was also not aware of the said fact. Further, late P.Natarajan was suffering from various ailments and on the same, he was not in a sound state of mind. Hence, late P.Natarajan would have never executed the WILL out of free consent or own willingness. The said WILL is nothing but a foul play orchestrated by Plaintiff herein.
(iii)Even assuming without admitting the fact that the WILL dated 15.07.1996 is legit, late Mrs.Shenbagavalli was granted life estate under the said WILL, who was also entitled to use and benefit during her lifetime all 10/20 https://www.mhc.tn.gov.in/judis TOS.No28 of 2020 the property, assets and credits of both movable and immovables of late P.Natarajan but late Mrs. Shenbagavalli was neither informed about the said execution of WILL dated 15.07.1996 nor granted any benefit from the estates of late P.Natarajan till death of her demise. The said alleged execution of the WILL dated 15.07.1996 was not known to any persons even too late Mrs.Shenbagavalli, who had a cordial relationship with her husband late P.Natarajan till his death. Thus, the said WILL dated 15.07.1996 would not have existed during late Mrs Shenbagavalli's lifetime, which been authored by the Plaintiff for his own benefit, after the demise of late Mrs.Shenbagavalli, to cheat and deprive the rights of the Defendants Nos.5 to 11 of their share of the Schedule Property.
(iv) The Plaintiff has deliberately suppressed the vital facts, late Mr.P. Natarajan is succeeded by 1. Shenbagavalli, his wife 2. Chandrasekaran, the Plaintiff. 3. Rangabashyam, the 1st Defendant. 4. Vinayagam @ Vedha Vinayagam, 2nd Defendant, 5.Valli, 10th Defendant, 6.Deivanai, 11th Defendant, 7. Kalayasundaram, who is succeeded by the Defendants 3 to 4 and K.Mohanasundari and 8.Gnanasambandan, who is succeeded by the Defendants 5 to 9.
(v)The said execution and existence of the said WILL was never 11/20 https://www.mhc.tn.gov.in/judis TOS.No28 of 2020 brought to the knowledge of the Defendants and the said fact was also not known to late Shenbagavalli, wife of late P.Natarajan. Further, Plaintiff failed to explain the delay of more than 17 years in revealing the said WILL and filing the present petition for probate before this Hon'ble Court and on the same, the present suit is liable to be dismissed.
4. On the pleadings of the parties, the following issues were framed:-
(1) Whether the Will dated 15.07.1996 allegedly executed by Mr.P.Natarajan Naicker @ P.Natarajan is genuine or not? (2)Whether the plaintiff is entitled to seek any relief in the present suit filed on 29.04.2019 based on the Will allegedly executed by of Mr.P.Natarajan Naicker @ P.Natarajan, who died on 02.12.2002, which is barred by law of limitation or not?
(3)To what relief the parties are entitled?
5. On the side of the Plaintiffs, PW.1 and PW.2 were examined and Ex.P1 to Ex.P5 were marked and on the side of the Defendants, neither witnesses were examined nor documents were marked.
6. This Court heard the submissions of the learned counsel on either side and perused the materials available on record. 12/20 https://www.mhc.tn.gov.in/judis TOS.No28 of 2020
7. The learned counsel for the plaintiffs would submit that the plaintiff's father P.Nataraja Naicker @ P. Natarajan in his Will dated 15.07.1996 had given life estate to his Wife Mrs. Shenbagavalli and therefore, only after the life time of Mrs. Shenbagavalli who died on 02.03.2017, the plaintiff had to apply for probate of the Will. Hence, plaintiff being a senior citizen, has filed the present petition in April 2019.
8.It has been further submitted by the learned counsel for the plaintiff that the deceased P.Nataraja Jaicker @ P.Natarajan has bequeathed the suit property in favour of the plaintiff and defendants 1 & 2 and Kalyanasundaram (Since deceased). The defendants 1 & 2 as beneficiaries mentioned in the Will and the defendants 3 & 4 as legal heirs of N.Kalyanasundaram (since deceased) who is also mentioned another beneficiary in the Will are not entitled to question the genuineness of the Will. Further, the plaintiff has proved the Will dated 15.07.1996 registered as document No.114 of 1996 in the office of the Sub-Registrar Sembiam by way of oral and documentary evidence. Vide Evidence of P.W.1 and P.W.2 and Documents of Ex.P1 to Ex.P5. Hence, he prays this Court to grant of 13/20 https://www.mhc.tn.gov.in/judis TOS.No28 of 2020 Probate in favour of the Plaintiff.
9. The learned counsel for the defendants would submit that due to the prolonged illness and old age, the deceased P.Nataraja Jaicker @ P.Natarajan was not in a stable state of mind and always needed the assistance of another to carry out his day to day affairs. Under such circumstances, the said Will said to have been executed by the deceased P.Nataraja Jaicker @ P.Natarajan is not genuine and forged one. Further, Plaintiff failed to explain the delay of more than 17 years in revealing the said WILL and filing the present petition for probate before this Hon'ble Court.
10. It has been further submitted by the learned counsel for the defendants that mere registration of WILL cannot be presumed to be valid merely because it is registered. Under Section 63 of the Succession Act, 1965, the Will shall be attested by two or more witnesses, each of whom has seen the Testator sign or affix his mark to the WILL, in the presence and by direction of the Testator. Further, Section 68 of the Evidence Act, 1872 mandates that WILL need to be proved by the attesting witness. 14/20 https://www.mhc.tn.gov.in/judis TOS.No28 of 2020 Since the Plaintiff have failed to prove the alleged WILL as mandated under Section 63 of the Succession Act, 1965 and Section 68 of the Evidence Act, 1872, the original suit is liable to be dismissed.
11. The learned counsel for the defendants would further submit that the stamp papers of the WILL were purchased on 26.02.1996 and the alleged WILL claimed to be executed by the Testator on 15.07.1996. There is absolutely no necessity to purchase the stamp papers on 26.02.1996 and execute the alleged WILL after 5 months i.e. 15.07.1996. Hence, it is very evident that the alleged WILL was not executed by the Testator i.e. Mr.P.Natarajan Naicker @P.Natrajan and the same was created and forged by the Plaintiff herein. Since the Plaintiff has failed to remove all the above suspicious circumstances surrounding the alleged WILL, the original suit is liable to be dismissed.
Issue Nos.1 to 3:
12. Even though the defendants have contended that the Will dated 15/20 https://www.mhc.tn.gov.in/judis TOS.No28 of 2020 15.07.1996 said to have been executed by P.Nataraja Naicker @ P. Natarajan is not genuine and forged one since he was not in a stable state of mind and always needed the assistance of another to carry out his day to day affairs and the same is averred in the Written statement, they have failed to prove the same by letting in oral and documentary evidence entering into the witness box. However, on the side of the plaintiff, P.W.1 and P.W.2 were examined and marked the Ex.P1 to Ex.P5 to prove the Will dated 15.07.1996.
13.It is contended by the learned counsel for the defendants that the date of Stamp papers which were not in serial number, was mentioned before the date of registration of the said Will. Merely because of the stamp papers were not in serial number and it was purchased before the registration of Will dated 15.07.1996, it cannot be considered as forged one. Further, the Will dated 15.07.1996 was registered before the SRO, Sembiam as Document No.114 of 1996.
14.It is proved on perusal of affidavit and evidence of PW.2, that he was present along with another attesting witness and both saw the testator, putting his signature in the Will and the testator saw them putting 16/20 https://www.mhc.tn.gov.in/judis TOS.No28 of 2020 their signatures as witnesses and thereby he has also spoken about the attestation of the document, in accordance with law. The evidence of P.W.2 would also go to show that the testator was in a sound and disposing state of mind and was in a good health, at the time of execution of Ex.P1 Will. The said evidence of PW2 would prove the attestation, execution of the Will and also the sound and disposing state of mind of the testator at the time of execution of Ex.P1 Will. Hence, the issue no.1 is answered in favour of the plaintiff and against the defendants. Accordingly, issue no.1 is answered.
15. Even though the learned counsel for the defendants raised the question of limitation period, the plaintiff has stated the sufficient reasons in filing the petition for granting probate in the petition itself and it can be condoned. Hence, the question of limitation does not arise. Thus, Issue No.2 is answered in favour of the plaintiff and against the defendants. Accordingly, Issue No.2 is answered.
16. Since the defendants have not proved by way of oral and documentary evidence that the said will is forged one and the Testamentary jurisdiction is invoked only for the purpose of deciding the proof of the 17/20 https://www.mhc.tn.gov.in/judis TOS.No28 of 2020 Will in order to grant Probate, considering the oral and documentary evidence let in by the plaintiff, the said Will is proved, hence, this Court is inclined to grant Probate in favour of the plaintiff and the plaintiff is entitled to get relief as prayed for. Accordingly, issue no.3 is answered in favour of the plaintiff.
17. In the result, the TOS is decreed as prayed for.
16.05.2024 Index:Yes/No Web:Yes/No Speaking/Non Speaking Lbm List of Witnesses Examined on the side of the Plaintiff:-
1. P.W.1 – Mr.N. Chandrasekaran
2. P.W.2 – Mr. Mr. S. Bakthavatchalu 18/20 https://www.mhc.tn.gov.in/judis TOS.No28 of 2020 List of Witnesses Examined on the side of the Defendant:-
--Nil--
List of Exhibits Marked on the side of the Plaintiffs:-
1.Ex.P1 is The Original Will executed by my father P. Nataraja Naicker alias P. Natarajan dated 15.07.1996. (Safe Custody) (Marked through PW1)
2.Ex.P2 is The original death certificate of P. Nataraja Naicker alias P. Natarajan dated 02.12.2002. (Marked through PW1)
3. Ex.P3 is The death certificate D. Shenbagavalli dated 02.03.2017.
(Marked through PW1)
4.Ex.P4 is The 1" signature of the attesting witness is mine. (Marked through PW2)
5.Ex.P5 is At the time of registration of the Will I identified the executor for that I signed as 2nd witness in the Will. (Marked through PW2). List of Exhibits Marked on the side of the Defendant:-
--Nil--
16.05.2024 19/20 https://www.mhc.tn.gov.in/judis TOS.No28 of 2020 A.A.NAKKIRAN, J.
Lbm Pre-Delivery Judgement in TOS.No.28 of 2020 16.05.2024 20/20 https://www.mhc.tn.gov.in/judis