Madras High Court
M.Sadagopan vs M.Narashiman on 8 July, 2022
Author: A.A.Nakkiran
Bench: A.A.Nakkiran
TOS.No.46 of 2006 and
CS.No.118 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 27.06.2022
PRONOUNCED ON : 08.07.2022
CORAM:
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
TOS.No.46 of 2006 and
Tr.CS.No.118 of 2008
M.Sadagopan Plaintiff -TOS
1st Defendant-CS
Vs
1. M.Narashiman Defendant -TOS &
Plaintiff-CS
2. Ms.Lakshmikantham (deceased) 2nd Defendant-CS
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 reliefs as stated therein. This Tr.CS has been filed under Order VII
Rule 1 of CPC, for the reliefs, as stated therein.
For Plaintiff : Mr.T.N.Rajagopalan-TOS
For Defendant : Ms.Shyamala-TOS
COMMON JUDGEMENT
1. This Testamentary Original Suit has been filed to grant Letters of
Administration, with a copy of the Will annexed, to the Plaintiff, as the son and
legatee under the Will of the deceased, having effect limited to the State of
Tamil Nadu.
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2. This Tr.CS has been filed, seeking a judgement and decree, directing partition
by metes and bounds and separate possession of the Plaintiff's 1/2nd share in
the Plaint A, B and C Schedule properties and to allot one such 1/2 nd share to
the Plaintiff and directing the Defendants to pay future mesne profits to the
Plaintiff from the date of the plaint till 26.09.2006 viz. the death of the 2nd
Defendant for 1/3rd share of the suit property and thereafter, direct the 2nd
Defendant to pay mesne profits till the Plaintiff gets possession of his 1/2 nd
share of the suit properties.
3. The case of the Plaintiff in TOS, in a nutshell, as set out, in the plaint is that
the Plaintiff and the Defendant are brothers and their father D.Madavan Pillai,
was ordinarily residing at No.9A, Ishwar Doss Lala Street, Triplicane,
Chennai, until his death on 06.01.1978 at the said residence and his wife and
parents predeceased him. The deceased father had also two daughters,
namely, Lakshmi Kantham and Komala and he got properties under a Will,
dated 20.8.1958 and the said Will was probated on 3.12.1965. He executed a
Will, dated 21.10.1977, while he was in a sound and disposing state of mind
and in the presence of the witnesses, bequeathing the properties to the
Plaintiff and Komala, who died on 05.05.1994, as a spinster. In and by the
said Will, Lakshmi Kantham was given the entire ground floor of the house at
Door No.9A, Ishwar Doss Lala Street, Triplicane, Chennai-5 and Komala was
given Door No.10, Nagojee Rao Street, Triplicane, Chennai-5 and the Plaintiff
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was given the entire first floor of the house at Door No.9A, Ishwar Doss Lala
Street, Triplicane, Chennai-5. The Defendant was leading a wasteful life and
he was separated from the family on 03.01.1971 and he had accepted
Rs.10,000/- in cash on 10.07.1976 in full quit and discharge of all his claims.
The suit in OS.No.1952 of 2005 was filed by the Defendant for partition.
Komala died on 5.5.1994 as a spinster leaving all her assets to the Plaintiff.
The whereabouts of the attesting witnesses D.Perumal and P.Krishnaswamy
Chetty are not known. But, another attesting witness Arugadoss has affirmed
the execution of the Will. Hence, the Plaintiff is alone entitled to the properties
bequeathed under the Will. The Testator has not made any appointment of
executor of the said Will. The amount of assets, which is likely to come into
the hands of the Plaintiff does not exceed in the aggregate the sum of
Rs.10,00,000/-- 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.9,90,000/-. The Plaintiff has impleaded the only next of kin or other
persons interested as the Defendant. There is no next of kin or other persons
interested to be impleaded. Since the original Will was misplaced, a copy of
the same has been filed. The Plaintiff undertakes to duly administer the
property and the credits of the said 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
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the same in the Court, within six months from the date of grant of Letters of
Administration, with the Will annexed to the Plaintiff and also 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 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 property and credits.
Hence, this Testamentary Original Suit suit has been filed, seeking the reliefs,
as stated above.
4. The case of the Defendant, in TOS, in a nutshell, as set out in the written
statement is that the alleged Will is a forged and fabricated one. His deceased
father ever executed a Will in respect of the suit properties. If really he had
executed any Will, he would have executed the same in his own hand writing.
In the alleged Will, the date and month were inserted and written in ink on the
1st as well as 2nd page. The suit is bad for non joinder of necessary parties.
As per the judgement and decree made in OS.No.15766 of 1996, the
Defendant is entitled to a share in the suit properties. The Defendant is
married and well educated. The TOS is a counter blast to the suit for partition
filed by the Defendant in OS.No.1952 of 2005. The averment that Komala
died, leaving all her assets to the Plaintiff and he and Lakshmi Kantham alone
are entitled to the properties is false. The Defendant as Class II heir is entitled
to a share in all her immovable properties. The Defendant issued a notice
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dated 26.06.2000 to the Plaintiff, demanding partition and filed a suit for
partition in March 2005. The attesting witnesses are fictitious persons. The
alleged Will is false and fictitious and does not exist. In such circumstances,
the TOS is liable to be dismissed.
5. The case of the Plaintiff in the Tr.CS, in a nutshell, as set out, in the plaint is
that the Plaintiff, the 1st Defendant and the 2nd Defendant are the sons and
daughter of Late D.Madhavan Pillai. The grandfather of the Plaintiff
M.S.Damodaran Pillai possessed vast properties and he died on 05.02.1965
and his legal heirs by partition and release, dated 27.2.1967, divided the
properties amongst them. The suit properties were allotted to the father of the
Plaintiff. The mother of the Plaintiff was possessed of nearly 100 sovereigns
of jewels at the time of her death. The father of the Plaintiff died on
06.01.1978 and his mother died on 21.02.1972, leaving behind her the
Plaintiff and the Defendants 1 and 2 and another daughter M.Komala, as their
legal heirs. Komala died as a spinster on 5.5.1994. Thus, The Plaintiff is
entitled to 1/3rd share in the suit properties. The Defendants 1 and 2 are
enjoying the rental income after the demise of their father and they are not
giving any share to the Plaintiff. The 2nd Defendant died as a spinster on
26.09.2006, leaving behind the Plaintiff and the 1st Defendant as her legal
heirs. Thus, the Plaintiff is entitled to 1/2 nd share in the suit properties. In such
circumstances, the Tr.CS has been filed, seeking the reliefs, as stated above.
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6. The case of the Defendants, in the Tr.CS, in a nutshell, as set out in the
written statement filed by the 1st Defendant, is that the relationship between
the parties is admitted. The suit properties are the absolute properties of
D.Madhavan Pillai by way of partition. His mother did not possess 100
sovereigns of jewels. The Plaintiff is not in joint possession of the suit
properties. As per the receipt dated 10.7.1976, the Plaintiff got separated from
the family in 1971. To the notice dated 7.4.1975 issued by the Plaintiff, a
reply dated 16.4.1975 was sent. Again, to the notice dated 12.2.1976 issued
by the Plaintiff, a reply dated 13.3.1976 was sent. D.Madhavan Pillai
executed a Will dated 21.10.1977, leaving his properties to the Defendants
and Komala. The Plaintiff is not entitled to 1/3rd share in the suit properties.
The Plaintiff is aware of the alleged Will. The Defendants alone are entitled to
the suit A and B Schedule properties and there is no item of jewellery. The
suit has not been properly valued and there is no cause of action. In such
circumstances, the Tr.CS is liable to be dismissed.
7. On the pleadings of the parties, in TOS, the following issues were framed:-
(1) Whether the Letters of Administration on the alleged second copy of
the original Will of D.Madhavan Pillai is maintainable?
(2)Whether the Will dated 21.10.1977 is true and genuine and whether it
was duly executed and validly attested?
(3)Whether the petition is hit by limitation?
(4)To what relief, the Plaintiff is entitled?
8. On the pleadings of the parties, in Tr.CS, the following issues were framed:-
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(1)Whether the Plaintiff proves that he is entitled for 1/3rd share in the suit
Schedule properties A, B and C, as prayed for?
(2)Whether the Defendants prove that in view of issuance of receipt by
acknowledging the receipt of Rs.10,000/- on 107..1976 by the
Plaintiff, who also acknowledged that he has no claim over the suit
Schedule properties and also executed the draft release deed and as
such the suit is to be dismissed?
(3)Whether the Plaintiff is entitled to mesne profits as prayed for?
(4)Whether the Court fee paid is correct?
(5)Whether there is any cause of action for the suit?
(6)To what relief the Plaintiff is entitled?
9. The Plaintiff in TOS is the 1st Defendant in the Tr.CS. The sole Defendant in
TOS is the Plaintiff in Tr.CS. A common trial was conducted. The Plaintiff in
TOS was examined as PW.1 and one of the attesting witnesses to the Will,
D.Arugadoss was examined as PW.2. The Defendant in TOS was examined
as DW.1. In TOS, Ex.P1 to Ex.P8 were marked and Ex.D1 to Ex.D5 were
marked. In Tr.CS, Ex.P1 to Ex.P18 were marked and Ex.D1 to Ex.D5 were
marked.
10.This Court heard the submissions of the learned counsel on either side in
both TOS and Tr.CS.
11. TOS.No.46 of 2006:-
12.The learned counsel for the Plaintiff has submitted that he and the Defendant
are the sons of Madhavan Pillai. Madhavan Pillai bequeathed the properties
under a Will, dated 20.8.1958 and that Will was probated on 3.12.1965.
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Madhavan Pillai died on 6.1.1978, leaving behind his daughters, Lakshmi
Kantham and Komala and two sons, Narashiman and Sadagopan. Madhavan
Pillai executed a Will on 21.10.1977 and in that Will, Narasimhan was not
allotted any share because he is leading a wasteful life. While he was
executing the Will, he was in a sound and disposing state of mind. The Will
was proved by him by examining the attesting witness, PW.2. Hence, he
prays for allowing this TOS.
13.The learned counsel for the Defendant would submit that the suit properties
were allotted to Madhavan Pillai and he was in absolute possession and
enjoyment of the properties. Madhavan Pillai never executed a Will in respect
of the properties. The Will was fabricated by the Plaintiff and his sisters. No
executor is appointed in the Will and the Will was not registered. There are
so many corrections in the Will and proper explanation was not given. The
reason stated by him that the original Will was misplaced is not acceptable.
The original copy of the Will is not filed. The Will is not proved beyond
reasonable doubts. The attestors are fictitious persons. The 3rd attesting
witness's signature and address were inserted subsequently. The will is not a
genuine one.
14.The learned counsel for the Defendant has relied on the following decisions:-
i. 2001 7 SCC 503 (N.Kamalam Vs. Ayyasamy), wherein it was held as
under:-
“3. Turning on to the former expression onus probandi, it is now a
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fairly well-settled principle that the same lies in every case upon the
party propounding the will and may satisfy the court's conscience that
the instrument as propounded is the last will of a free and capable
testator, meaning thereby obviously, that the testator at the time when
he subscribed his signature on to the will had a sound and disposing
state of mind and memory and ordinarily, however, the onus is
discharged as regards the due execution of the will if the propounder
leads evidence to show that the will bears the signature and mark of
the testator and that the will is duly attested. This attestation however,
shall have to be in accordance with Section 68 of the Evidence Act
which requires that if a document is required by law to be attested, it
shall not be used as evidence until at least one attesting witness has
been called for the purpose of proving its execution and the same is
so however, in the event of there being an attesting witness alive and
capable of giving the evidence. The law is also equally well settled
that in the event of there being circumstances surrounding the
execution of the will shrouded in suspicion, it is the duty paramount
on the part of the propounder to remove that suspicion by leading
satisfactory evidence.”
ii. 2007 7 SCC 225 (Apoline D'Souza Vs. John D'Souza), wherein it
was held as under:-
“13. Section 68 of the Evidence Act, 1872 provides for the mode and
manner in which execution of the will is to be proved. Proof of
attestation of the will is a mandatory requirement. Attestation is
sought to be proved by PW 2 only. Both the daughters of the testatrix
were nuns. No property, therefore, could be bequeathed in their
favour. In fact one of them had expired long back. Relation of the
testatrix with the respondent admittedly was very cordial. The
appellant before us has not been able to prove that she had been
staying with the testatrix since 1986 and only on that account she
was made a beneficiary thereof. The will was full of suspicious
circumstances. PW 2 categorically stated that the will was drafted
before her coming to the residence of the testatrix and she had only
proved her signature as a witness to the execution of the will but the
document was a handwritten one. The original will is typed in
Kannada, although the blanks were filled up with English letters.
There is no evidence to show that the contents of the will were read
over and explained to the testatrix. PW 2 was not known to her. Why
was she called and who called her to attest the will is shrouded in
mystery. Her evidence is not at all satisfactory in regard to the proper
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frame of mind of the testatrix. There were several cuttings and
overwritings also in the will.
.....
20. The ratio of the said decision does not assist the appellant, as the
mode and manner of proof of due execution of a will indisputably will
depend upon the facts and circumstances of each case. It is for the
propounder of the will to remove the suspicious circumstances, which
has not been done in this case.”
iii. 2007 5 CTC 513 (L.Bakthavatsalam Vs. R.Alagiriswamy), wherein it
was held as under:-
“47. It is true that Section 68 of the Indian Evidence Act applies to
cases where the attesting witnesses are alive and Section 69 applies
to cases where no attesting witnesses are alive. But the question to
be considered in these cases is that even if Section 69 is applicable,
it must be proved that the attestation of one of the attesting witnesses
at least is in his handwriting and that the signature of the person
executing the document is proved to be in his handwriting. In the
absence of Original Will produced before the Court and in the
absence of any such evidence as required under Section 69 of the
Indian Evidence Act, except the evidence of the attesting witness
Venkatasamy Naidu in Section 145, Cr.P.C. proceedings which was
marked as Ex.B. 7, it is patently clear that there is no compliance of
the requirements under Section 68 or 69 of the Indian Evidence Act
on the facts of the present case. While so, it is not known as to how it
is relevant to consider the credibility of the attesting witness, when
the requirement of law in respect of proof of execution of the Will
requires the evidence of attesting witness to show that the Testator
was in a sound state of mind and the Testator has seen the attesting
witnesses, who have signed in the presence of the Testator as
required under Section 63(c) of the Indian Succession Act and not
the credibility of the attesting witnesses. Therefore, the conclusion
arrived at by the learned First Appellate Judge as if the attesting
witnesses of Ex.B. 10 are having high credibility and therefore, there
is no reason to disbelieve them, has absolutely no meaning.
58. Applying the provisions of the said Section, I am not able to
appreciate as to how Ex.B. 10 being the registration copy of the Will
can be allowed to be relied upon as a secondary evidence, when it is
stated in the plaint itself in the present Suit, O.S. No. 89 of 1983 that
the Original Will was with the Executor, who was also made as a
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party, viz., 12th defendant who died during the pendency of the suit.
But, till the date of his death, which is stated to be in 1990, the
plaintiff has not taken any steps to direct him to produce the Original
Will. Even after his death, only summons was issued to his son-
Venkatramani and no further steps have been taken for the
production of the Will. As I have stated earlier, even in the Suit filed
by Mrs. Krishnammal in O.S. No. 71 of 1958, it was specifically stated
in the Plaint that the Registration Copy of the Will was filed and the
Original Will would be produced later. Strangely, in Section 145,
Cr.P.C. proceedings marked as Ex.B. 2, the Will is stated to have
been marked as Ex.P. 68, whereas on a reading of the entire Ex.B. 2
order, one cannot find as to whether Ex.P. 68 marked in that
proceedings was Original Will or not. It is not known as to why the
plaintiff has not taken any steps to summon the records in the said
Criminal proceedings. All these things would show that it is not the
case of the plaintiff that Will was lost or destroyed or unable to be
produced for any reasonable cause. On the other hand, there is
contradiction in evidence of Venkatasamy Naidu, given in the
Criminal Court, the deposition of which was marked as Ex.B. 7 and
the pleadings by defendants 1 to 3 in the present Suit, viz., O.S. No.
89 of 1983 about the place of execution of the Will. While the
endorsement on Ex.B. 10 shows that it was executed in the place of
Ammani Ammal, the evidence of Venkadasamy Naidu in the criminal
proceedings shows that it was in the house of R.V. Rangasamy
Naidu. It is unimpeachable and almost acceptable position that R.V.
Rangasamy Naidu was not keeping in good health. All these factual
position create a suspicion on the validity of the Will certainly
necessitating or imposing a heavy onus on the plaintiff to prove the
genuineness of the same. The legal position regarding the removal of
suspicion on the Will is laid down by the Supreme Court in H.
Venkatachala v. B.S. Thimmajamma, AIR 1959 SC 443, which is
reiterated by the Apex Court in Rani Purnima Debi and
another v. Kumar Khagendra Narayan Deb and another, AIR 1962
SC 567, in the following words:
“5.….. The condition of the testator's mind might appear to be very
feeble and debilitated and evidence adduced might not succeed in
removing the legitimate doubt as to the mental capacity of the testator;
the dispositions made in the Will might appear to be unnatural,
improbable or unfair in the light of relevant circumstances; or the Will
might otherwise indicate that the said dispositions might not be the
result of the testator's free will and mind. In such cases, the Court
would naturally expect that all legitimate suspicions should be
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completely removed before the document was accepted as the last
Will of the testator. Further, a propounder himself might take a
prominent part in the execution of the will which conferred on him
substantial benefits. If this was so it was generally treated as a
suspicious circumstance attending the execution of the Will and the
propounder was required to remove the doubts by clear and
satisfactory evidence. But even where there were suspicious
circumstances and the propounder succeeded in removing them, the
Court would grant probate, though the Will might be unnatural and
might cut off wholly or in part near relations.”
Therefore, in fact, the Trial Court has considered all these aspects
and came to the conclusion that the Will has not been proved in the
manner known to law. A reversal finding by the First Appellate Court
for the above said reasons are not sustainable in law. In view of the
same, there is no difficulty to come to the conclusion that the finding
arrived at by the learned First Appellate Judge in holding that the Will
of R.V. Rangasamy Naidu dated 10.5.1955 stands proved cannot be
accepted.
iv. 2009 3 CTC 503 (P.R.Vijayarangam Vs. P.R.Ramanujam), wherein it
was held as under:-
“19. It is in evidence that the testatrix was afflicted by mortal
disease viz., cancer. To quell the rithing pain on account of cancer
attack, seductives would have been freely used. But, it is seen that
the plaintiff, who would contend during the course of evidence that
the Doctor who attended the testatrix issued a Medical Certificate to
establish her mental condition, has not produced any document from
the Doctor nor had he examined the Doctor to establish the sound
and mental status of the testatrix. The predominant role of the
propounder of the Will not only in the matter of preparation of the Will
but also in the matter of execution and registration of the Will throws
doubt on the execution of the Will with her free will and volition. The
sound and disposing state of mind in such a volatile health profile of
the testatrix is found to be highly suspicious. No reason was
assigned for completely disinheriting the other brother of the testatrix.
In the above facts and circumstances, the aforesaid ratio does not
come to the rescue of the plaintiff. “
v. 2009 6 CTC 34 (Valliammal Vs. Lakshmiammal), wherein it was held
as under:-
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“41. Hence, in these circumstances, it cannot be held that Ex.B2, the
“Will” was proved as per law. The perusal of the judgement of the
Trial Court, to say the least, is far from satisfactory as without
adverting to the aforesaid serious lacuna in the evidence relating to
proving of the Will, it held as though the Will was proved. The Trial
Court was expected to apply its mind on the suspicious
circumstances as highlighted supra, thereat the learned Judge should
have looked for evidence, which are capable of dispelling such
suspicions. However, the Trial Court resorted to the dubious
approach of blindly believing the version of D.Ws.1 and 2 coupled
with the version of DW3 and simply recorded the finding in favour of
DW3. As such, the findings of the Trial Court relating to the validity of
Ex.B2 is liable to be set aside and accordingly, the same is set aside.”
15.This Court considered the said submissions of the learned counsel on either
side and also perused the materials available on record.
16. Issues Nos.1 and 2:-
17.PW.1 has deposed that Ex.P1 was executed by Madhavan Pillai and it
contains the original signatures of the Testator as well as the witnesses. The
signature of the Testator found in Ex.P1 is his father's signature and three
witnesses have signed in the Will.
18.PW.2 has deposed that he is one of the attesting witnesses to the Will
executed by Madhavan Pillai. On 21.10.1977 he was present with D.Perumal
and Krishnasamy Chetty, at the house of the Testator Madhavan Pillai.
Madhavan Pillai signed in the Will and another copy of the Will. Later on,
Perumal and Krishnasamy Chetty subscribed the signatures at the foot of the
testamentary papers. Later on, Perumal, Krishnasamy Chetty and he
subscribed the signatures at the foot of both the testamentary papers. At the
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time of executing the Will, Madhavan Pillai was in a sound and disposing
state of mind and memory and understanding. In his cross, he has deposed
that Madhavan Pillai had read out the Will which was with him and he signed
the Will first in their presence and then he requested them to sign as
witnesses in the Will. Signing formalities and everything were over by 15
minutes.
19.DW.1 has deposed that Madhavan Pillai ever executed a Will in respect of
the properties. Ex.A1 has not been executed by Madhavan Pillai and it is a
forged and fabricated one. If really his father executed a Will, he would have
executed the same in his own handwriting and appointed an executor and he
would have registered the same. The Will is not a true and genuine one. He
did not find Arugadoss and no such person was living. The Will is not a
genuine one and was not executed by his father.
20. A perusal of Ex.P1 reveals that the date mentioned in that Will is 21 st
October 1977. At the end of the Will, one signature found is that of Madhavan
Pillai and at the bottom, three witnesses have signed. The 3 rd witness,
Arugadoss's name is mentioned. Arugadoss, in his evidence, has deposed
that after the Will was prepared, Madhavan Pillai had signed and later on, all
these three had signed in that Will and at the time of executing the Will,
Madhavan Pillai was in a sound and disposing state of mind.
21.To prove a Will, one attesting witness is enough. At the same time,
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Narashiman has deposed that the Will is not a genuine one and it was
fabricated by the Plaintiff and his sisters. To prove his contention, he has not
filed any document and in his cross, nothing is extracted from PW.1 that the
Will is not a genuine one. So, PW.1 examined himself and proved the Will.
22.It is well settled law that the Wills need not be registered. In this case, PW.1
has proved his contention by examining himself and also one of the attesting
witnesses and marking the documents. So, it is clear that the Will was
executed by Madhavan Pillai on 21.10.1977 and it is proved by the Plaintiff in
this case. Hence, issues nos.1 and 2 are answered in favour of the Plaintiff.
23. Issue No.(3):-
24.In 2016 1 CTC 257 (S.Vatsala Vs. K.S.Mohan), it was held as under:-
“36...... More over, if the execution of the Will is proved, the delay in taking
steps to probate the Will, will not loom large, since Order XXV, Rule 9 of
Madras High Court Original Side Rules has not prescribed any period of
limitation and probably, it aims to give explanation alone. Though delay may
cause suspicion about the Will, it cannot be held that the application is
barred by limitation under Article 137 as it may not be possible to find out as
to when the right to apply accrued. Delay in taking steps may be one of the
circumstances to be considered while determining the genuineness of the
Will.”
In view of the above said decision and also the settled legal position, this
case is not hit by limitation. Hence, the issue no. (3) is answered in favour of
the Plaintiff.
25. Issue (4):- The Plaintiff is entitled for the relief, as prayed for.
26.In fine, this Testamentary Original Suit is allowed, as prayed for and Letters
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of Administration is ordered to be issued in favour of the Plaintiff in TOS. The
Plaintiffs is directed to duly administer the properties and credits of the
deceased more fully described in the schedule. The Plaintiff is directed to take
inventory of the assets of the Testator within six months from today and is
also directed to render true and due accounts of the properties and credits
once a year. The Plaintiff is directed to execute a personal bond for a sum of
Rs.25,000/- (Rupees twenty five thousand only) in favour of the Assistant
Registrar (O.S.), High Court, Madras-104.
27. Tr.CS.No.118 of 2008
28.The learned counsel for the Plaintiff has submitted that Madhavan Pillai is his
father and the 1st Defendant, Komala and Lakshmi Kantham are his brother
and sisters. His grandfather Damodharan Pillai allotted the suit properties to
his father and he was in possession and enjoyment of the property.
Madhavan Pillai died in 1978. Komala died in 1994. Lakshmi Kantham also
died in 2006. Since the properties are ancestral properties, he is also in joint
possession. Therefore, he is entitled to 1/2nd share in the suit property.
29.The learned counsel for the Defendant has submitted that his grand father
Damodharan Pillai executed a Will in 1958 and it was probated. Therefore,
the properties bequeathed to Madhavan Pillai became the absolute properties
of Madhavan Pillai. Madhavan Pillai executed a Will on 21.12.1977 and
bequeathed the properties to this Defendant and his two daughters. The
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CS.No.118 of 2008
Plaintiff was a wayward son. Therefore, his father gave him a final settlement
of Rs.10,000/- on 10.7.1976 and the Plaintiff acknowledged it and he also
gave a receipt. Therefore, the Plaintiff is not entitled to any share in the
property.
30.This Court considered the said submissions of the learned counsel on either
side, including the materials available on record.
31. Issues Nos.1 and 2:-
32.PW.1 has deposed that his grand father Damodharan Pillai possessed
immovable properties and the suit property was allotted to his father and he
was in absolute possession and enjoyment of the same. His father died in
1978 and he is in joint possession of the property with the Defendant. His
sister Komala died as a spinster on 5.5.1994 and another sister Lakshmi
Kantham died in 2006. He issued a legal notice on 26.06.2000. He has
further deposed that his father used to obtain his signature in blank papers
and blank stamp papers. So this was utilised by the Defendant to grab the
property. So the receipt dated 10.7.1976 is such nature of the document.
The Will dated 21.10.1977 is not a genuine one and it is not a registered one.
It had no evidentiary value.
33.DW.1 has deposed that his grand father Damodharan Pillai possessed vast
properties and under the Will, it was allotted to Madhavan Pillai. Therefore,
the properties bequeathed to Madhavan Pillai became his absolute property.
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It was acknowledged by the Plaintiff and he issued a receipt dated 10.7.1976.
He has further deposed that because of his violent behaviour, he left the
home on his own in 1971. The Plaintiff signed a receipt dated 10.7.1976 and
gave up all his relationship with any member of the family. The Plaintiff has
been ousted from the family. So his claim is not at all sustainable. He has
further deposed that his father executed a Will dated 21.10.1977, leaving his
properties to the Defendant and other two daughters. The Plaintiff
suppressed the facts.
34.In TOS.No.46 of 2006, this Court has decided that the Will is a genuine one.
On a perusal of the Will, it is clearly mentioned as, “I had one son
M.Narashiman who had been leading a wasteful life and proving dangerous
to remain in the family. He got separated from the family on 3.1.1971 under
painful circumstances referred to in detail in my letter dated 16.4.1975 to
M.Narashiman. However, he was given Rs.10,000/- in cash on 10.7.1976 in
full quit and full discharge of all claims, if any. My two daughters contributed
Rs.5,000/- each to this payment. He shall here after have no rights or
interests in any of these properties.”
35.A perusal of the receipt, Ex.D5 reveals that in the same, it is mentioned as,
“(a) I have perused and understood the contents of Will dated 20.8.1958
executed by my paternal grandfather Mr.M.S.Damodaran Pillai, duly probated
by order dated 3.12.1965 in OP.No.265 of 1965, High Court, Madras. (b) I got
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separated in January 1971 and since then I had no connection with any
member of the family. In June, 1976, I approached my father to view my
present situation sympathetically and give me Rupees ten thousand, which he
has paid and which I have received in the presence of witnesses, who have
signed herein: (c) I declare that I have no claim to any of the properties-
immovable and movable in the possession and power of my father, including
the assets of my mother and I have no more personal or property relationship
with any member of the family in any shape, form or manner.”
36.In his letter, he himself stated that he got separated from the family in January
1971. In cross, he admitted the signature. He further deposed that “I have
received Rs.10,000/- and signed it. The Defendant further admitted in his
cross that after 1971, I did not live with the family. So it is clear that he himself
got separated from the family.
37.In TOS.No.46 of 2006, this Court held that the Will is true and a genuine one.
In that Will, no properties were allotted to this Plaintiff. Further, for many
years, he is not living with his family member. Therefore, he is not in joint
possession and enjoyment of the property.
38.Regarding the jewels, he has not given any clear particulars and it is not
proved by oral and documentary evidence. Therefore, he is not entitled to
any share in the A, B, C- Schedule properties. Hence, issue no.1 is decided
against the Plaintiff. Further, the receipt dated 16.7.1976 is also admitted.
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Therefore, the Issue No.2 is also decided against the Plaintiff.
39. Issue No.3:-_ Issues Nos.1 and 2 are decided against the Plaintiff.
Therefore, this issue does not arise.
40. Issue No.4:-_ This Court has come to the conclusion that the Will has been
proved. Therefore, the Plaintiff is not entitled to claim partition. Under the
above said circumstances, the question of court fee need not be decided.
41. Issue No.5:- Since this Court has decided that the Will dated 21.10.1977
has been proved in TOS, the question of partition does not arise. Therefore,
this Court comes to the conclusion that there is no cause of action in Tr.CS.
42. Issue No.6:- The Plaintiff is not entitled for any relief.
43.In fine, this Tr.CS is dismissed with costs.
08.07.2022
Index:Yes/No
Web:Yes/No
Speaking/Non Speaking
Srcm
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TOS.No.46 of 2006 and
CS.No.118 of 2008
A.A.NAKKIRAN, J.
Srcm Pre-Delivery Judgement in TOS.No.46 of 2006 and CS.No.118 of 2008 08.07.2022 21/21 https://www.mhc.tn.gov.in/judis