R.Subramani Alias Mani vs R.Surendran on 28 July, 2025

[Cites 10, Cited by 0]

Madras High Court

R.Subramani Alias Mani vs R.Surendran on 28 July, 2025

OSA.No.250 of 2021 has been filed against the judgement and decree passed in T.O.S.No.47 of 2013. The other OSA.No.252 of 2021 has arisen against the judgment and decree passed in C.S.No.722 of 2018. Both C.S.No.722 of 2018 and T.O.S.No.47 of 2013 have been disposed of by way of a common judgment dated 29.05.2020. Further, the fact and law involved in both OSAs are intertwined and interconnected. Therefore, this Court deems it appropriate to take up both the OSAs together for common disposal.

2. The appellants in OSA.No.250 of 2021 are the plaintiffs in T.O.S.No.47 of 2013, and they also the defendants 21 and 23 in C.S.No.722 of 2018. Similarly, the respondent in OSA.No.250 of 2021 is the defendant in T.O.S.No.47 of 2013, and plaintiff in C.S.No.722 of 2018. The suit in C.S.No.722 of 2018 was originally filed before the VI Additional City Civil Court, Chennai in O.S.No.4271 of 1998. Subsequently, the same was 3/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 transferred to this Court and renumbered as CS.No.722 of 018 and disposed of along with T.O.S.No.47 of 2013.

3. The brief facts in TOS.No.47 of 2013:-

a). The instant TOS has been filed to probate the Will dated 20.01.1961 and its Codicil dated 01.05.1961, allegedly executed by one Tmt.S.Balambal. According to the plaintiffs, after the demise of Tmt.S.Balambal on 09.12.1962, the Will and Codicil came into effect. The plaintiffs further submit that the testatrix deposited both Will and Codicil with the Sub Registrar, North Madras in a sealed cover, and that such deposit was informed to her two sons and her counsel late Mr.K.N.Balasubramanian, who is the scribe of the Will. The said Mr.K.N.Balasubramanian is also the grandson of the testatrix through her daughter Mrs.Leelavathi.

b). The plaintiffs are brother and sister. Their father Mr.C.Rajagopalan is the son of testatrix, and was named as the executor of the said Will. He died intestate on 28.06.1999. The contesting respondent R.Surendran [D11] is also a grandson of Tmt.S.Balambal through her first son Mr.Ramachandran. The 11th defendant's mother Mrs.Savithri Ramachandran, and his sister Mrs.Uma Ganesan were arrayed as the 4/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 defendants 3 and 12 respectively. The other legal heirs were also arrayed as parties and there are no dispute in respect of relationship. For ready reference, this Court deems it appropriate to extract the genealogy of Tmt.S.Balambal and her husband Mr.Subramania Iyer, the same is as follows:-

c). According to the plaintiffs, after the demise of Tmt.S.Balambal, the sealed cover, which contains the last Will and testament of Tmt.S.Balambal was opened at the instance of her son and the executor Mr.C.Rajagopalan, with the guidance of his Advocate and scribe late.Mr.K.N.Balasubramanian.

After that, the said Will was copied in Book No.3 and registered as 5/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 Document No.8 of 1963 on the file of the Sub Registrar, North Madras. There upon, the contents of the Will was duly informed to all the beneficiaries. Since there were no issues among the family members regarding the Will, no necessity arises for the plaintiff to initiate probate proceeding. However, only after the impleadment of the plaintiffs herein as a defendant in OS.No.4271 of 1998 on the file of the VI Additional City Civil Court, Chennai, it becomes necessitated to file an application for Probate of the Will.

d). It is the further submission of the plaintiffs that they were not informed about the whereabouts of the original Will and Codicil. The plaintiffs further submit that the two attesting witnesses are not found, and their whereabouts could not be located. Hence, they submitted an affidavit of one Mr.Sankaranarayanan, who according to the plaintiffs, acquainted with the signature of Tmt.S.Balambal. Therefore, the plaintiffs have come forward with an application praying to grant a letters of administration in respect of the Will and Codicil of Tmt.S.Balambal.

4 (a). The above suit was stoutly objected by the 11th defendant R.Surendren, who is the plaintiff in C.S.No.722 of 2018. According to his 6/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 written statement, his father late Ramachandran left the family, and gone to an unknown destination, and that he was not heard for a continuous period of more than seven years from 1980. Hence, after his presumptive death, this 11th defendant filed the suit in O.S.No.4271 of 1998 [renumbered as C.S.No.722 of 2018] seeking a relief of partition in respect of his grandfather, and grandmother's property qua Mr.C.R.Subramania Iyer's property, and Tmt.S.Balambal's property respectively. His grandfather's property is described as Schedule “A” in plaint to C.S.No.722 of 2018, and Tmt.S.Balambal's property is described as Schedule “B” therein, besides subject matter of this suit.

(b). The suit in C.S.No.722 of 2018 was originally instituted on 06.07.1998. However, the alleged executor of the Will Mr.C.Rajagopalan, who alive at that point of time, did not think fit to file any written statement nor he evinced any interest to file an application for grant of Probate.

(c). In the said suit, the plaintiff/R.Subramanian, as 21st defendant filed a written statement only during 2007. It is the submission of this defendant that when late Mr.C.Rajagopalan did not apply for a Probate during his lifetime, the application of the present plaintiff for Probate has to be viewed with suspicion. He would further submit that the original Will had not been 7/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 submitted before this Court. This defendant also disputes the execution and the alleged deposit of Will. The deposit of Will and its execution could have been an outcome of an impersonation and forgery. Only to give a colour of reality, they presumably deposited in a sealed cover. The conduct of Mr.K.N.Balasubramanian and Mr.Rajagopalan in not filing an application for grant of Probate would manifest their mala fide conduct and their knowledge about the fabrication and fraudulent act in the creation of the Will. The alleged attestors to the will are the Clerk and Driver of late Mr.K.N.Balasubramanian. Hence, this defendant prayed to dismiss the suit in TOS.No.47 of 2013 and prayed for a decree as prayed for in CS.No.722 of 2018.

5. The brief facts in CS.No.722 of 2018:-

a). The plaintiff R.Surendren has filed the suit for partition claiming partition in respect of his grandfather Mr.C.R.Subramania Iyer's property, which is described as “A” Schedule in the suit and his grandmother Tmt.S.Balambal's property, which is described as “B” Schedule property.

According to the plaint averments, by way of intestate succession, he prays for 4/28th share in “A” Schedule property, and 1/27th share in “B” schedule 8/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 property. Since his allegation in the plaint is as that of his written statement in TOS.No.47 of 2013, for brevity sake, the same is not again paraphrased.

b). The above suit was resisted by the defendants 21 and 23, who are the plaintiffs in TOS.No.47 of 2013. In respect of “B” Schedule property qua Smt.S.Balambal's property, the defence is nothing but, testamentary succession as pleaded in the plaint in TOS.No.47 of 2013. In respect of “A” Schedule property, it is their submission that, since patta for “A” Schedule property stands in the name of these defendants' father under the Inam Abolition Act, their father became the absolute owner of the property. To put it in a nutshell, it is the submission of these defendants that “A” and “B” Schedule properties are the absolute property of their father by virtue of patta issued by the Government under the Inam Abolition Act, and by way of testamentary succession through the Will executed by Tmt.S.Balambal.

6 (a). Before the Trial Court, the witnesses were examined separately in both the suit. In TOS.No.47 of 2013, on behalf of the plaintiffs, 2 witnesses were examined as PW1 & PW2 viz., the first plaintiff and the Officer from the Sub Registrar Office. On behalf of the defendants, 21 st 9/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 defendant Mr.R.Surendran alone was examined as DW1. On behalf of the plaintiffs, 24 documents were marked as Exs.P1 to P24, and no documents were marked on behalf of the defendants.

(b). Similarly in C.S.No.722 of 2018, Mr.R.Surendran alone was examined as PW1, and Mr.R.Subramanian was examined as DW1. On behalf of the plaintiff, 48 documents were marked as Exs.A1 to A48. On behalf of the defendants, no documents were marked.

7. (a) On the above fact and law pleaded by either side, the learned Single Judge has framed the following issues in TOS.No.47 of 2013:-

(1) Whether the Will dated 20.01.1961 and Codicil dated 1.5.1961 executed by S.Balambal is true and genuine?

(2) Whether the plaintiffs are entitled to a decree granting Letters of Administration with the certified copy of the Will and Codicil?

(3) Relief and cost?

[Extracted as it is]

(b) Issues framed in C.S.No.722 of 2018, which were originally framed in O.S.No.4271 of 1998 while the suit was pending before the learned Additional Judge, City Civil Court, Chennai, read as follows:-

(i) Whether the plaintiff is joined possession in 'A' Schedule property?

10/36

https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 (2) Whether the 'A' Schedule property portioned between the plaintiff and the third defendant by the partition deed dated 18.03.1960?

(3) Whether the 'B' Schedule property is particiable property between the plaintiffs and defendants?

(4) Whether as per the Will dated 01.05.1961 the third defendant and the daughters of Balammal are the absolute owners?

(5) Whether the plaintiff is entitled to any partition in respect of 'A' Schedule. If so what is the ratio?

(6) Whether the plaintiff is entitled to any part in the B Schedule. If so what is the ratio?

(7) Whether the third and fourth defendants and their legal heirs are got perfect title by adverse possession in respect of 'A' Schedule?

(8) Whether the plaintiff is bound by the decree and judgment in O.S.No.123 of 1976, District Munsif Court, Valangaiman and whether the Will dated 20.01.1961 brought to the knowledge of plaintiff and defendants?

(9) Whether the plaintiff is entitled to get the rendition accounts from the third defendant?

(10) Whether the Court Fee paid by the plaintiff is correct?

(11) To what other relief?

[Extracted as it is] 11/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021

8. While considering the above issues, the learned Single Judge found that there are no grounds to grant letters of administration in respect of the Will dated 20.01.1961 and Codicil dated 01.05.1961. As a consequence, the suit in C.S.No.722 of 2018 was decreed as prayed for.

9. Not satisfying with the above judgment, the plaintiffs in TOS, who are the defendants in C.S.No.722 of 2018 have filed the instant OSAs.

10. We have heard Mr.R.Rajarajan, learned counsel for the appellants and Mr.V.K.Vijayaraghavan, learned counsel appearing for the first respondent.

11. The learned counsel for the appellants would vehemently contend that in respect of “A” Schedule property, there was a partition during 1960, which is marked as Ex.A3. Therefore, having party to the partition agreement [Ex.A3], the claim of Mr.R.Surendran once again for partition is illegal. It is his further submission that the entire “A” Schedule property is the absolute property of plaintiff's father Mr.C.Rajagopalan. In support of his contention, he relied upon the patta in respect of “A” Schedule property 12/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 stands in their father's name, which was issued under the Tamil Nadu Inam Abolition Act, 1963. He would further submit that in respect of “B” Schedule property, a Will was executed by Tmt.S.Balambal. However, the learned Single Judge failed to consider the conduct of parties, where the parties accepted the existence of the Will by virtue of execution of sale deed under Exs.P9 to P15 between 1967 to 1990, which are the proof that the Will was acted upon. It is the further submission of the learned counsel that the learned Single Judge has failed to consider Ex.P8-receipt, which is nothing but, a receipt in respect of payment of annuity, as stipulated under the Will and Codicil of Tmt.S.Balambal. The learned counsel would further contend that the learned Single Judge has proceeded on the wrong assumption that the non production of the original Will is a suspicious circumstance. But, as a matter of providence, the availability of Will before this Court came to light during the argument of this case. Hence, an application was filed under Order 41 Rule 27 CPC to bring the Will and Codicil on record as the additional documents. It is his further submission that, if the Will is brought under Order 41 Rule 27 CPC and tendered in evidence before the Court, by virtue of Section 90 of the Indian Evidence Act, a presumption may be drawn in respect of execution and attestation of the Will in question, as the 13/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 documents are 30 years old. Therefore, even if no attesting witnesses are available, by virtue of Section 90 of the Indian Evidence Act, the Will become deemed to have been proved as there are no contra evidence. It is in this background, he would contend that the decree for partition ordered by the learned Single Judge is erroneous and contrary to the evidence. Hence, prayed to set aside the judgment of the learned Single Judge, by allowing these appeals and also prayed to allow Order 41 Rule 27 application.

12 (a). Per contra, the learned counsel appearing for the first respondent would vehemently contend that though there was a partition under Ex.A3, the “A” schedule property is not form part of the said partition deed. It is the further submission of the learned counsel that though patta issued in the name of Mr.Rajagopalan, it was the family property owned by Mr.C.R.Subramania Iyer. Therefore, mere issuance of patta in the name of late Rajagopalan will not confer any absolute right upon him. It is his further submission that during the life time of Rajagopalan, he did not object for granting the partition, by filing any written statement. In respect of “B” schedule property, they would submit that it is not a case of testamentary succession and the alleged Will and Codicil of late Tmt.S.Balambal is nothing, but a fabricated and stage managed one by 14/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 Mr.K.N.Balasubramanian and Mr.Rajagopalan. According to the first respondent, the theory of execution of Will and it's deposit by Tmt.S.Balambal are all concocted story of Mr.K.N.Balasubramanian and Mr.Rajagopalan, so as to give a colour of truthfulness and to camouflage their act of fabrication and impersonation. It is his specific submission that the original Will has not been produced before the Trial Court, and that there are numerous inherent suspicious circumstances in the execution of the Will. He also contended that, even the conduct of Mr.Rajagopalan in not filing Probate application is also a ground to suspect the existence and execution of the Will. It is his further submission that admittedly late S.Balambal was under the control of Mr.C.Rajagopalan. Therefore, the free will of the testator S.Balambal could not be perceived.

(b). The learned counsel for the respondents also stoutly objected the application filed under Order 41 Rule 27 CPC. He would further submit that even if the Will is received as additional evidence, no purpose would be served, as admittedly, no witnesses were examined to prove the attestation or to prove the signature of the attestor, as contemplated under Section 69 of the Indian Evidence Act. Therefore, the learned counsel for the first respondent prayed to dismiss both the OSAs.

15/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021

13. We have given our anxious consideration to either side submissions.

14. From the submissions of either side, the following points arise for our consideration:-

(i) Whether the Will dated 20.01.1961 and Codicil dated 01.05.1961, which allegedly executed by S.Balambal is true and genuine?

(ii)Whether the plaintiffs in TOS No.47 of 2013 are entitled for a decree for granting a letters of administration as prayed for?

(iii)Whether the plaintiff in C.S.No.722 of 2018 is entitled for a decree for partition as prayed for?

(iv)Whether an application filed by the plaintiffs in TOS No.47 of 2013 under Order 41 Rule 27 of CPC is to be allowed or not? Point Nos.(i), (ii) and (iv):-

15. Coming to the Will dated 20.01.1961 and Codicil dated 01.05.1961, admittedly the original Will and Codicil were not produced before the learned Single Judge. Further, as a matter of fact, the attestors are no more, and that PW1 has no idea to examine any person familiar with the 16/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 signature of the attestor of the Will and Codicil. For ready reference, this Court deems it appropriate to extract the relevant admission of R.Subramanian, who is the plaintiff in TOS.No.47 of 2013:-

“Both the Attestors died. Both of the Attestors are hailing from Andhra Pradesh. I do not know what was the work done or assigned to them in the suit building by Mr.K.N.Balasubramanian. I admit that for proving the signature of Balambal, these two people are alone competent. Mr.K.N.Balasubramanian is no more now. For proving the truth of the Will, we have not proposed to examine any witness. We are not examining any person familiar with the signatures of the Attestors of the Will dated 20.01.1961.” (emphasis supplied by this Court)

16. According to Section 68 of the Indian Evidence Act, and Section 63 of Indian Succession Act, for proving the Will, it is mandatory on the part of the propounder to examine the attestor. If in any case, the attestor is not alive or found, then Section 69 of the Indian Evidence Act can be employed, and it becomes incumbent upon the propounder to prove at least the attestation of one attesting witness is in his handwriting. Here, admittedly, in view of above admission the propounder of the Will qua the appellants have shut all the avenues provided under the Statute to prove the Will. Even before this Court, no attempt was made to examine any witness, which 17/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 covertly and overtly reiterate the above finding.

17. At this juncture, the learned counsel for the appellants would invite the attention of this Court in respect of Ex.P8 viz., the receipts, said to have been given by the daughters of Tmt.S.Balambal, and the sale deed executed by their father Mr.Rajagopalan under Exs.P9 to P15. Through which they would contend that these documents would establish the existence of the Will and Codicil, and its subsequent enforcement. Admittedly, before the learned Single Judge, the original Will and Codicil were not produced. To put it differently, until recently the mystery of the existence of the original Will and Codicil could not be cracked, either by appellants or by the respondents. But, by providence, the presence of original Will and Codicil become possible from “No where” to “Now here”, through the order of this Court dated 28.03.2025. In this regard, it is relevant to extract the orders of this Court dated 28.03.2025:-

“Mr.R.Karunakaran, Sub-Registrar (in-charge), Chennai North Joint – I appears today in compliance with the directions of the Court on 04.03.2025 and reiterated on 07.03.2025. He is however in possession of Book No.3 only.

2. The attention of Mr.Karthik Jagannath, learned 18/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 Government Advocate who appears on behalf of the Sub-Registrar is drawn to the testimony of the then Joint -I Sub-Registrar recorded on 21.12.2018, wherein references are made to Book 3(1) (as No.8 of 1968 (e) volume 112 pages 43 and 44. 4th February 1968 T.George Joint Sub Registrar exercising powers of District Registrar).

3. The authorities are also required to produce Book No.5 to verify the entry made at the time of deposit in line with the testimony given, recorded at page 105. It stands to reason that the Will should have been deposited in the first place as the necessity to handover the same to the Executor of the deceased would arise only if the Will had been deposited with the Registrar.

4. List on 04.04.2025.”

18. In pursuance thereof, the Sub Registrar Office, North Madras has produced Book No.5 Volume 10 and it;s connected papers, for the perusal of this Court. This Court has also obtained the photo copy of the same. For better appreciation of these appeals and also enable this Court to pronounce the judgment effectively, we deems it appropriate to suo motu mark the photo copy of the above document as a, Court document Ex.C1.

19. Only after filing of these documents, either parties came to know that the original Will and Codicil are before this Court in an application No.1573 of 1965 filed by one Rajagopalan under Order 25 Rule 10 of the 19/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 Madras High Court Original Side Rules. In order to ascertain the veracity of the contents of Ex.C1, this Court enquired with the Joint Registrar (Original Side) and we had seen the availability of the original Will and Codicil along with A.No.1573 of 1965 as acknowledged by the First Assistant Registrar, Original Side. For ready reference, the acknowledgment given by the First Assistant Registrar, Original Side, in Ex.C1 is extracted hereinbelow:-

“I am to acknowledge receipt of the original will and codicil sent along with your letter cited above.” Therefore, the original Will and Codicil are available before the Original Side of this Court.

20. Now, let us proceed on the premise that the original Will and Codicil available before the Original Side of this Court in A.No.1573 of 1965, which application is form part of Ex.C1. As we extracted hereinabove, the original Will was produced before this Court in pursuance of Summons issued under Order 25 Rule 10 of Madras High Court Original Side Rules. For better appreciation, we deem it appropriate to extract Order 25 Rule 10 of the Madras High Court Original Side Rules, (hereinafter called Rules for convenience sake). The same is as follows:-

“10. An application for the issue of a citation to the Registrar of 20/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 Assurances or any other person to produce or cause to be produced any will in deposit with him or in his possession, as the case may be, shall be made to the Master supported by an affidavit by the applicant stating among other facts that he intends to apply for a grant of probate of the will or of letters of administration with the will annexed, and the Master may issue citation accordingly.” [emphasis supplied by this Court]

21. The application under Order 25 Rule 10 of the Rules was filed by Mr.S.Rajagopalan, who is none other than the father of the plaintiffs in TOS.No.47 of 2013, wherein he categorically asserted about his intention to file a probate OP. Only on the above premise, he required the original documents. Only thereafter, the original Will and Codicil were produced before the Court during 1965 itself. Accordingly, the above originals were made available before this Court, within four years from the date of execution of Will and Codicil, and within 3 years from the date of death of testator Tmt.S.Balambal. But, why Mr.S.Rajagopalan did not file the Probate OP during his lifetime qua till 1999 would definitely a grave inherent suspicion over the genuinity of the Will, which the plaintiff has to dispel.

22. It is well settled principle of law that, there is a primordial duty 21/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 cast upon the propounder of the Will to dispel all the suspicious circumstances. According to Exs.P2 and P3, the Will and Codicil respectively, late Mr.S.Rajagopalan was named as an executor. He appears to have diligently filed an application under Order 25 Rule 10 of the Rules for the production of the original Will. But, there are no explanation from the propounder as to why his father did not file an application for Probate. Therefore, the argument of the respondent counsel that late S.Rajagopalan did not proceed with the Probate proceeding, only because of it's fabrication and falsity, cannot be ignored.

23. But, the learned counsel for the appellants would invite the attention of this Court about Ex.P8-receipts, and would contend that since there was no dispute among the other legal heirs for the enforcement of Will except Mr.R.Surendren, no necessity has arisen to his father to file probate OP. But the learned counsel for the respondents stoutly disputes Ex.P8- receipts. In this connection, the learned counsel for the first respondent would invite the attention of this Court about the admission made by the appellant about the veracity of Ex.P8 receipts, where he had categorically admitted as follows:-

“...........I did not write the recitals in the receipt in Ex.P8. I am not a 22/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 witness in the said Ex.P8. The receipts have been signed by one Savithri and others in Ex.P8. .............................................................. I have no personal knowledge about the receipts and I was also not present when the receipts were signed. ........................................... Q: I put it to you that whether Ex.P8 series receipts have been fabricated or concocted?

A: I do not know about the truth of receipts marked under Ex.P8 Series.”

24. From the harmonious reading of the above admissions of the appellants. it is amply clear that these appellants have no personal knowledge about these receipts and they also not sure about it's truthfulness. Therefore, the mere production of some receipts does not mean that it is a proof of its execution. Therefore, as rightly observed by the learned Single Judge, it is highly unsafe to rely upon Ex.P8, as piece of evidence to support the existence and the implementation of the Will is, well merited.

25. The learned counsel for the appellants took his next limb of argument by relying upon the sale deeds Exs.P9 to P15 executed by Mr.C.Rajagopalan, which was dealt in Codicil. These sale deeds were emerged between the period 1967 – 1990. According to the Codicil [Ex.P3], 23/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 the testator had given a right to Mr.Rajagopalan qua the executor of the Will, to sell the Thiruvalangadu property, so as to pay the estate duty for filing the Probate OP. Here again the conduct of Mr.Rajagopalan assumes much significance and once again cause grave inherent suspicion about the existence and execution of the Will [Ex.P2] and Codicil [Ex.P3]. Because, if really Mr.Rajagopalan was interested to get a Probate as instructed in the Codicil, he ought to have filed an application for Probate by paying the estate duty atleast after the above sale deed. In this regard, the relevant admission of PW1/first appellant is as follows:-

“The relevant sale deeds are Ex.P12 to Ex.P15. From out of the 7 sale proceeds, no amount was spent towards Probate proceedings contemplated in the Will. ............................................ Till his death, my father did not apply for Probate during his lifetime.” Therefore, the suspicious circumstances, as to why the present appellant's father did not file Probate OP, between 1965 to 1999, even after sale of the certain properties, have not been explained by these appellants. These unexplained inherent suspicion would defiantly make a dent in the appellants' case.

26. At this juncture, it is relevant to refer the recent judgment of the 24/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 Hon'ble Supreme Court in Lilian Coelho and others Vs. Myra Philomena Coalho reported in (2025) 2 SCC 633, wherein the Hon'ble Supreme Court has categorically held that there is a difference between “Will is validly executed” and a “Will is genuine”. Therefore, even if the Will was validly executed does not mean that the same is genuine, and that the Court still is competent to go into the suspicious circumstances of the same. For ready reference, the relevant paragraphs are extracted hereunder:-

“9. Therefore, it can be said that even after the propounder is able to establish that the will was executed in accordance with the law, that will only lead to the presumption that it is validly executed but that by itself is no reason to canvass the position that it would amount to a finding with respect to the genuineness of the same. In other words, even after holding that a will is genuine, it is within the jurisdiction of the Court to hold that it is not worthy to act upon as being shrouded with suspicious circumstances when the propounder failed to remove such suspicious circumstances to the satisfaction of the Court.”

10. ......................

11. ......................

12. A scanning of the judgment of the learned Single Judge that after holding the will dated 7-7-1982 as validly executed on the following three grounds, taken as suspicious circumstances surrounding the will in question, the learned Single Judge declined to grant the LoA holding that the plaintiff had failed to explain the 25/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 suspicious circumstances surrounding the execution of the will. The clause “failed to explain suspicious circumstances surrounding the execution of the will”, if taken only as a finding that it was validly executed but still it is surrounded with suspicious circumstances, then it can only be said that the learned Single Judge was justified or correct in proceeding with the matter further.” [emphasis supplied by this Court]

27. Be that as it may. Now let us consider the effect of availability of original Will and Codicil before this Court. Here, the main thrust of the appellants' argument is to receive the same in evidence. It is their further submission that if the document is received, notwithstanding the non compliance of Section 63 of the Indian Succession Act, and Sections 68 & 69 of the Indian Evidence Act, since the Will and Codicil are of 30 years old documents, and had been brought from a proper custody, a presumption may be drawn under Section 90 of the Indian Evidence Act, in respect of due execution and attestation. It is in this background contended that they are entitled for a Probate. In support of his contention, the learned counsel relied upon the (i) Privy Council judgment in Kunwar Basant Singh and others Vs. Kunwar Brij Raj Saran Singh (Privy Council Appeals Nos.12, 13, 14 and 15 of 1931. Allahabad Appeals Nos.2, 7, 8 and 15 of 1929), (ii) 26/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 Munnalal Vs. Mst.Kashibai and others (Privy Council Appeal No.13 of 1945) and the judgments of the Hon'ble Supreme Court in Sital Das Vs. Sant Ram and others reported in (1954) 1 SCC 654 and Gadey Venkata Ratnam and others Vs. Gadey Sitaramayya and others reported in AIR 1950 Madras 634.

28. In Sital Das's case [cited supra], the Hon'ble Supreme Court had explained the limit of Section 90 of the Indian Evidence Act. He would also rely upon the judgments of this Court in Murugayee (Dead) rep. by her LR. Meenakshi Vs. Suguna Sambandam and others reported in 2011 (5) CTC 813 and the judgment of the learned Single Judge in SA.No.339 of 2019 [Marathal and another Vs. Kanniammal (Died) and others], and urge this Court to invok Section 90 of the Indian Evidence Act for the proof of Will.

29. We do not want to go into the conflicting views referred by either parties regarding the applicability of presumption under Section 90 of the Indian Evidence Act for the proof of Will. But we want to analyze, whether the presumption provided under Section 90 of the Indian Evidence Act is the only option, or whether the court has any other option. To put it differently, 27/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 we want to analyze whether the presumption provided under Section 90 of the Indian Evidence Act is “mandatory” or “a discretionary”. For ready reference, we deem it appropriate to extract Section 90 of the Indian Evidence Act:-

“90. Presumption as to documents thirty years old. –– Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.”

30. The word “may presume” is defined under Section 4 of the Indian Evidence Act. The same is extracted hereunder:-

“4. “May presume”.- Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.”

31. On harmonious reading of Section 4, for the word “may 28/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 presume”, there is a discretion available to the Court either to “presume” or “may call for proof of it”. While reading the definition for “may presume”, the word used between two categories is “or”. While interpreting Statute, whenever the word “or” is used, it has to be read disjunctively. In this regard, it is appropriate to refer the judgment of the Hon'ble Supreme Court in Commr. (CGST) v. Safari Retreats (P) Ltd., reported in (2025) 2 SCC 523. Therefore, Section 4 of the Indian Evidence Act provides option to the Court depends upon the merits of the individual case. Therefore, in a given circumstances, the Court may require the party to prove the fact, without embarking upon the presumption.

32. Before proceed further, let us find out is there any foundational fact to invoke Section 90 of the Indian Evidence Act. Admittedly, in this regard, there are no pleadings in the plaint. This defence emerged only during the argument. In this regard, before we consider as to the option available to the Court, under Section 90 of the Indian Evidence Act, let us consider the following admission made by PW1:-

“....When my father was alive, regarding the Will, he did not communicate to the defendant. ........................................................... For the first time, I came to know about the Will during early 1970s.

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https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 I did not see the Will and read the Will. I did not ask my father as to the genuineness of the Will or did not put any question whether it was acted upon. .............”

33. According to Section 90 of the Indian Evidence Act, the document not only been produced from a proper custody, but also the document must be a 30 years old document. Though the Will at present is in the custody of this Court, mere custody of the will in the Court by itself cannot be construed as a proper custody, that too in the background of the present fact, as the Will was received during 1965 in Court at the instance of Mr.Rajagopalan. If we accept the contention of the learned counsel for the appellants that the Will is in proper custody, it would nothing, but rewarding a defaulted person for their own fault of not initiating the Probate proceedings since 1965.

34. When the Will was admittedly received in 1965, within 3 years from the date of death of testator, if Mr.Rajagopalan had filed an application for Probate, the availability of the attestors or at least the persons who knew the handwriting of the attestors would have been available. It is in this background, even for argument sake if we presume that Section 90 of the Indian Evidence Act is applicable to Will, the option of drawing of 30/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 presumption is highly unsafe. The off shoot of the above discussion is, having failed to take any steps till the life time of Mr.Rajagopalan (until 1999), the filing of the instant application in the year 2013 by this petitioner who admittedly knew about the existence of the alleged Will since 1970, would only reinforce the suspicion over the Will and Codicil. Therefore, the argument of the learned counsel for the appellants to invoke Section 90 of the Indian Evidence Act, is fallacious and perilous, and that thus is a fit case to use the other option of requiring the parties to prove the fact before this Court.

35. As we already stated, the presumption under Section 90 is not mandatory, but only discretionary. In the case in hand, there are grave suspicion as to why no Probate proceedings filed since 1965 in spite of the availability of the original Will before the Court, and why the executor even after sale of property did not pay estate duty, are unanswered and still lingering. Yet another doubt is as to why Mr.Rajagopalan, did not file any written statement in the connected partition suit during his lift time. But the propounder of the Will, miserably failed to explain the above suspicion, which would definitely make their case become doubtful. Apart from the 31/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 above, the other way of looking at the document, which are available before the Court since 1965, would make the document as not 30 years old document on the date of it's initial production before the Court.

36. At this juncture, the learned Counsel for the first respondent would invite the attention of this Court about the control exercised by Mr.Rajagopalan against his mother. Further, he also relied upon the judgment of the Hon'ble Supreme Court in Gurdial Kaur and others Vs. Kartar Kaur and Others reported in 1998-2-LW-134, wherein the Hon'ble Supreme Court held that it is the duty of the propounder of the Will not only to satisfy Court about the execution and attestation, but also that the Will was the product of free volition of the executant. In this regard the admission of PW.1 is relevant. The same is as follows:-

“Balambal was very cordial to her daughters and daughters were also very cordial to her. Before the death of Balambal, my father and M.K.N.Balasubramanian were alone with deceased Balambal. Balambal used to do what my father tell.” Therefore, the contention of the learned counsel for the first respondent that the possibility of undue influence also cannot be ruled out.

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37. In view of the above specious and obfuscate circumstances, this Court does not want to draw the presumption under Section 90 of the Indian Evidence Act, and would like to require the propounder to prove Exs.P2 and P3 [Will and Codicil] independently before the Court. As we already extracted, the propounder has no idea to examine any witness to prove the Will and Codicil. Once the Will and Codicil are not proved, there are no ground, except to accept, the intestate succession upon 'B' schedule property of C.S.No.722 of 2018. In such a circumstance, there is no necessity arises to allow the Order 41 and 27 of CPC application, as the propounder has no idea to examine any witness to prove the Will. Thus, we are of the firm view that the Will dated 20.01.1961 and the Codicil dated 01.05.1961 are not genuine, and has not been proved in a manner known to law. Similarly, the application in C.M.P.No.10040 of 2025 is devoid of merits.

38. Even for argument sake, if we presume about the due attestation and execution under Section 90 of the Indian Evidence Act, still the unexplained inherent suspicious circumstances as discussed supra, would make the Will and Codicil become unworthy to act upon, as held in Lilian 33/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 Coelho and others [cited supra]. Therefore, we hold that the findings rendered by the learned Single Judge that the Will dated 20.01.1961 and Codicil dated 01.05.1961 are not true and genuine is perfectly in order. As a sequitur, the plaintiffs in TOS.No.47 of 2013 are not entitled for grant of Letters of Administration.

Point No.(iii):-

39. As rightly contended by the learned counsel for the first respondent, though there was a partition in 1960 under Ex.A3, the property referred to in “A” Schedule was not form part of Ex.A3. It is further not in dispute that the “A” schedule property absolutely belongs to Mr.Rajagopalan's father Mr.C.R.Subramania Iyer. In such view of the matter, the mere issuance of patta in the name of Mr.Rajagopalan will in no way confer any absolute right on him. Thus, we hold that the plaintiff in C.S.No.722 of 2018 is also entitled for a partition in “A” Schedule property as prayed for. In respect of “B” schedule property, since this Court already held that the Will and Codicil have not been proved, as a concomitant, by way of intestate succession, he is also entitled for share in “B” schedule property, as prayed for.

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40. In the result both the OSAs and CMP.No.10040 of 2025 are dismissed by confirming the decree and judgment of the learned Single Judge. Considering the relationship between the parties, there shall be no order as to costs. Consequently, connected CMP is also closed.




                                        (Dr.ANITA SUMANTH, J .) (C.KUMARAPPAN, J.)
                                                        .      .2025
                  Index               : Yes
                  Neutral Citation    : Yes
                  Speaking order
                  kmi
                  List of document suo motu marked by this Court:-
                  Ex.C1 is a photocopy of Book No.5 Volume 10 and its

connected papers, as submitted by the Sub-Registrar in pursuance of this Court's order dated 28.03.2025. The document contains 22 pages.

To The Sub Assistant Registrar, Original Side, High Court of Madras.

35/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm ) OSA.Nos.250 and 252 of 2021 Dr.ANITA SUMANTH, J.

and C.KUMARAPPAN, J.

kmi Original Side Appeal Nos.250 and 252 of 2021 28.07.2025 36/36 https://www.mhc.tn.gov.in/judis ( Uploaded on: 30/07/2025 07:51:00 pm )

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