Madras High Court
N.R.K.R.Ravindran (Deceased) vs D.Vijayasankar
TOS.No.7 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on Judgment Pronounced on
04.07.2024 12.07.2024
CORAM:
THE HON`BLE MR.JUSTICE P.B.BALAJI
TOS.No.7 of 2021
1.N.R.K.R.Ravindran (Deceased)
2.R.Thilagavathy
3.N.R.K.R.Rajarathinam
4.N.R.K.R.Chirancheevirathinam
5.N.R.K.R.Selvarathinam .. Plaintiffs
[Plaintiffs 2 to 5 are L.R's of the
deceased 1st plaintiff in
O.P.No.911 of 2006, amended
as per order dated 01.07.2019 in
A.No.4408 of 2019]
..Vs.
D.Vijayasankar .. Defendant
Prayer: Original Petition has been filed under Sections 222 and 276 of
the Indian Succession Act of XXXIX of 1925 for the grant of Letters of
Administration with the Will and Codicil of the deceased
Smt.J.A.Rajapushpam, annexed having effect limited to the State of
Tamil Nadu.
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TOS.No.7 of 2021
For Plaintiffs : Mr.V.Sekar
For Defendant : Mr.M.Kamalanathan
JUDGMENT
One Mr.N.R.K.R.Ravindran, filed O.P.No.911 of 2006 seeking issuance of Grant of Letters of Administration with the Will and Codicil of late J.A.Rajapushpam, annexed, having effect limited to the State of Tamil Nadu.
2.One of the brother's son of the husband of the testatrix J.A.Rajapushpam, by name, Vijaya Sankar who was cited as the 7th respondent in the Original Petition filed a caveat, intending to oppose the grant. In view of the same, the Original Petition was directed to be converted into a Testamentary Original Suit, namely the present suit. Pending the proceedings, the petitioner, N.R.K.R.Ravindran died and his legal representatives, namely the petitioners 2 to 5 were brought on record as plaintiffs.
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3.The brief facts of the plaintiffs are as follows:
The deceased testatrix is the wife of late Dr.C.Jayaraj Iyyan Nadar and she died on 29.04.2002, leaving behind a registered Will dated 14.03.2002 and also a Codicil dated 15.03.2002. According to the plaintiffs, the deceased testatrix executed the Will and the Codicil in a sound and disposing state of mind and memory and having been duly executed and attested in accordance with law, the plaintiffs were entitled to grant of Letters of Administration as prayed for.
4.The written statement of the defendant in brief:
(i) The defendant filed written statement contending that the alleged Will and Codicil were not voluntarily executed by the testatrix and that they have been created by the plaintiffs and the various beneficiaries under the said Will and Codicil. It is also contended that bequests are unnatural and the execution of the Will and Codicil are shrouded in suspicion. It is further contended that the propounder of the Will and Codicil has taken an active part in execution of the Will, which confers substantial benefit on him.
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(ii) It is further contended that no explanation has been given by the propounder as to why the Will was registered on the earlier date but the Codicil on the very next day was unregistered. According to the defendant, the same raises a strong suspicion surrounding the genuineness and authenticity of the Will and the Codicil. The testatrix has the habit of signing documents and the fact that she has affixed her left thumb impression in the Will and Codicil itself creates a doubt with regard to genuineness of the Will and Codicil. It is also stated by the defendant that the father of the defendant, Desika Sankar had filed a petition for succession certificate where it has been stated that the testatrix died intestate. The said succession certificate was granted by the Subordinate Court, Sivakasi on 28.11.2003, consequent to which the legal heirs of Desika Sankar have received the benefits of the Government through the Dean, Kilpauk Medical College, Chennai. The bequests are improbable as the deceased was affectionate to all her relatives on her husband's side. Further, it is also contended that the husband of the testatrix, through whom the testatrix inherits the properties which are subject matter of the Will, had left behind a Will and therefore, the Will executed by the deceased is not valid and binding. https://www.mhc.tn.gov.in/judis 4/23 TOS.No.7 of 2021
5.This Court, on 08.08.2022 framed the following issues for consideration:
“1)Whether the Will dated 14.03.2002 is true and genuine?
2) To what other reliefs, the parties are entitled?”
6.As the testatrix said to have executed a Will on 14.03.2002 and grant sought for in respect of the said Codicil also, I modify the 1st issue as follows:
“1) Whether the Will dated 14.03.2002 and the Codicil dated 15.03.2002 are true and genuine?”
7.The parties went to trial and the 2nd plaintiff, wife of the original petitioner, N.R.K.R.Ravindran, namely R.Thilagavathi examined herself as P.W.1. In fact, P.W.1 was examined on commission and the Advocate Commissioner has recorded the evidence of P.W.1. On the side of the plaintiffs, Ex.A1 to Ex.A9 were marked through P.W.1 at the time of examination by the Advocate Commissioner. One S.Surendran, was examined as P.W.2, being one of the attesting witnesses and through P.W.2, Ex.A10 was marked. The defendant examined himself as D.W.1 https://www.mhc.tn.gov.in/judis 5/23 TOS.No.7 of 2021 and though no document was marked on the side of the defendant, through P.W.1 in cross-examination, Ex.D1 to Ex.D5 were marked and through P.W.2 cross-examination Ex.D6 to Ex.D8 were marked. During cross examination of D.W.1, Ex.C1 and Ex.A11 and Ex.A12 were marked .
8.Ex.A4 is the Will dated 14.03.2002 which is said to have been executed by J.A.Rajapushpam. It is a registered Will. Ex.A6 is the Codicil dated 15.03.2002 to the said last Will and testament, Ex.A4. It is in respect of the Ex.A4 and A6 that the grant has been sought for in the above suit.
9.I have heard Mr.V.Sekar, learned counsel for the plaintiffs and Mr.M.Kamalanathan, learned counsel for the defendant. I have gone through the entire pleadings, oral and documentary evidence available on record and I have also considered the rival submissions advanced by the learned counsel on either side.
10.Issue No.1:
Mr.V.Sekar, learned counsel for the plaintiffs would submit that https://www.mhc.tn.gov.in/judis 6/23 TOS.No.7 of 2021 the testatrix had executed earlier Wills which were revoked in and by her last Will in Ex.A4. He would also submit that the said Will in Ex.A4 pertains only to the properties that she inherited as the sole surviving legal heir of her husband and in respect of her properties i.e., properties which she inherited from her side of the family were separately bequeathed under a different Will which was registered as document No.56 of 2001. The learned counsel for the plaintiffs would submit that the defendant is only the testatrix's husband brother's son and excepting the defendant, none of the other 31 legal heirs have chosen to object to the grant as prayed for by the plaintiffs. In fact, he would also state that some of the respondents in the Original Petition had even given consent for the grant to be issued in favour of the petitioner, Mr.N.R.K.R.Ravindran.
11.The learned counsel for the plaintiffs would further invite my attention to Ex.A7 and Ex.A8 which are Sale Deeds to show that the Will which is now challenged by the defendant was acted upon. He would specifically draw my attention to Ex.A8, where the son of the defendant himself has relied upon Ex.A4, Will and sold one of the items of the property. He would further submit that the defendant has not chosen to https://www.mhc.tn.gov.in/judis 7/23 TOS.No.7 of 2021 take any action against the sales effected in Ex.A7 and Ex.A8 which are only based on Ex.A4, Will and Ex.A6, Codicil. The learned counsel for the plaintiff would further submit that the attesting witness, S.Surendran, who was examined as P.W.2, has deposed naturally before the Court and his evidence is clear and cogent. He has clearly spoken about the execution of the Will, as well as its registration on the same day, at his residence where the testatrix was residing along with him.
12.The learned counsel for the plaintiffs would further submit that the Codicil was attested by the own brother of the defendant himself and with regard to the left thumb impression being affixed, he would invite my attention to the earlier Wills which were revoked by the Will dated 14.03.2002 in Ex.A4 to establish that even in the earlier Wills, the testatrix had only affixed her left thumb impression. He would further submit that the attestor has clearly spoken about the reason for the testatrix not signing the Ex.A4, Will and Ex.A6, Codicil. He would also place reliance on the decision of the Hon'ble Division Bench of this Court, to which I was part of, in G.Lakshmi and Another Vs. U.Saraswathi reported in (2023) 4 MLJ 182, where speaking for the Division Bench, I held that there is no straight jacket formula to ascertain https://www.mhc.tn.gov.in/judis 8/23 TOS.No.7 of 2021 or assess suspicious circumstances. All or any suspicion cannot be treated as a suspicious circumstances, thereby calling upon the propounder to dispel the same.
13.Per contra, Mr.M.Kamalanathan, learned counsel for the defendant would submit that the testatrix had no right to execute the Will since her mother-in-law i.e., mother of her husband, Dr.C.Jeyaraj Ayyan Nadar survived and therefore, she was entitled to an equal share in the subject properties. He would further submit that the Will has been brought about under highly suspicious circumstances and the attesting witness even claims that the testatrix was living in his residence only and further, the wife of the attesting witness is also a beneficiary under the Codicil and therefore, he is an interested witness. The learned counsel for the defendant would invite my attention to the succession certificate granted where specific statement has been made that the testatrix had died intestate. He would further state that the medical certificate of the testatrix has not been produced on the side of the plaintiffs to establish that the testatrix was in a sound and disposing state of mind and memory and also that she could not sign any document. He would also state that as late as in September 2001 she has signed documents and therefore, there was no reason why she could not sign the alleged Will and Codicil https://www.mhc.tn.gov.in/judis 9/23 TOS.No.7 of 2021 in March 2002.
14.The learned counsel for the defendant would also place reliance on the decision of this Court in K.K.Selvam (Died) & Others Vs. Rajarajeswari & Others reported in 2023-3-L.W.931, where this Court held that when there is no independent witness to prove the Will, then the onus on the profounder cannot be held to be duly discharged. He would therefore pray for dismissal of the Testamentary Original Suit.
15.Having considered the rival submissions advanced by the learned counsel on either side, I proceed to decide the 1 st issue which is the only germane issue that survives for consideration in the present Testamentary Original Suit. Admittedly, J.A.Rajapushpam was married to Dr.C.Jeyaraj Ayyan Nadar. It is an admitted position that Dr.C.Jeyaraj Ayyan Nadar and the testatrix were not blessed with any children. It is also an admitted fact that the husband of the testatrix predeceased her and it is claimed that as the only surviving legal heir, the properties stood vested with the testatrix. However, on the side of the defendant, it is strenuously contended that the mother-in-law of the deceased testatrix survived her son, Dr.C.Jeyaraj Ayyan Nadar, who died on 29.02.1984 https://www.mhc.tn.gov.in/judis 10/23 TOS.No.7 of 2021 and she died much later on 28.03.1987 and therefore, as a Class-1 legal heir, she was entitled to 50% in the estate of the Dr.C.Jeyaraj Ayyan Nadar and therefore, the Will executed by the J.A.Rajapushpam is not valid as she had no right to execute the Will.
16.It was further contended on the side of the defendant that Dr.C.Jeyaraj Ayyan Nadar himself had executed a Will and therefore, his estate can go only by his Will and not by the Will of the testatrix. Straightaway, with regard to these two preliminary objections, I would like to state that in respect of the alleged Will of Dr.C.Jeyaraj Ayyan Nadar, despite pleading about the same in the written statement as well as in the proof affidavit has also giving evidence by way of proof affidavit, there is absolutely no material placed on record by the defendant to establish that Dr.C.Jeyaraj Ayyan Nadar had in fact executed his last Will and testament. The defendant is not even in a position to give the date of the alleged Will executed by the Dr.C.Jeyaraj Ayyan Nadar. Therefore, in the absence of any prima facie material on the side of the defendant, I am of the considered opinion that there is no necessity for the Court to go on a wild goose chase. The available Will of the J.A.Rajapushpam, therefore is entitled to be tested in accordance with https://www.mhc.tn.gov.in/judis 11/23 TOS.No.7 of 2021 law and in the light of the pleadings and evidence available before the Court. With regard to the mother of the testatrix husband, Dr.C.Jeyaraj Ayyan Nadar having survived, the entitlement of J.A.Rajapushpam, the testatrix to execute the Will is being questioned. As a probate Court, this Court is concerned only with truth and genuineness of the Will and it is settled position that probate Court does not deal with the title of the testatrix which is alien to the present proceedings. In any event, Section 30 of the Hindu Succession Act permits execution of the Will even in respect of coparcenary property or interest therein. Therefore, there is no legal impediment for this Court to test the last Will and the Codicil of J.A.Rajapushpam in Ex.A4 and Ex.A6. There is no merit in the argument that the testatrix cannot execute her last Will and testament. It is of course open to any interested person to move the competent Civil Court in respect of the issue of title or the actual share of the testatrix in the subject property.
17.Coming to Ex.A4, Will and Ex.A6, Codicil, the deceased petitioner in the Original Petition, Mr.N.R.K.R.Ravindran was a major beneficiary, Schedule A comprising 5 items having been bequeathed to him. In respect of other schedules, various other persons have been https://www.mhc.tn.gov.in/judis 12/23 TOS.No.7 of 2021 named as beneficiaries to the Will. In fact, as already indicated, the son of the defendant himself and the brothers of the defendant are also beneficiaries and they have acted upon the Will by executing Sale Deed in Ex.A8. Similarly, Ex.A7 is another Sale Deed dated 06.02.2009 where also a portion of the estate of J.A.Rajapushpam has been sold acting upon in Ex.A4, Will. It is also to be borne in mind that out of 32 Class-2 legal heirs none of the other legal heirs, excepting the defendant, have chosen to challenge the Will and Codicil in Ex.A4 and Ex.A6.
18.In order to prove due execution and attestation of Ex.A4, Will and Ex.A6, Codicil, Mr.S.Surendran, one of the attesting witnesses has been examined. He has clearly spoken about the manner in which the Will came to be executed while the testatrix was living in his residence, under his care and custody. Admittedly, the attesting witness, P.W.2 is not a beneficiary. Though it is contended by the learned counsel for the defendant that the attesting witness is a major beneficiary, I do not find any merit in the said contention, excepting for a sum of Rs.2,00,000/- which has been bequeathed under the Codicil to the wife of P.W.2, I do not find any personal benefit being conferred on the attesting witness, P.W.2. In fact, P.W.2 is none else than the son of the one of the sisters of the testatrix by name Saroja. Therefore, I do not find anything unnatural https://www.mhc.tn.gov.in/judis 13/23 TOS.No.7 of 2021 in P.W.2 having attested the Will.
19.P.W.2 has also spoken about the Codicil in Ex.P6 which has been attested by D.Ravi Shankar son of Desiga Sankar who is the own brother of the defendant and one A.Kumaravel who was in fact, the other attesting witness to Ex.A4 and Ex.A6. However, I find that neither D.Ravi Shankar nor A.Kumaravel have been examined to prove due execution of the Will and Codicil. The Codicil is also a document which is required to be executed and attested like any other testament instrument, namely the Will. Therefore, the burden is on the plaintiffs to establish due execution and attestation of the Codicil in Ex.A6. Unfortunately, there is no evidence forthcoming with regard to the execution of the Codicil. Neither of the attesting witnesses to the said Ex.A6 have been examined and therefore, straightaway I have no hesitation in holding that Codicil in Ex.A6 has not been proved and the plaintiffs are not entitled to grant of Letters of Administration in respect of the Codicil.
20.Coming to the last Will and testament in Ex.A4, the same has been attested by S.Surendran, P.W.2 and another witness, A.Kumaravel. https://www.mhc.tn.gov.in/judis 14/23 TOS.No.7 of 2021 P.W.2 has spoken about the due execution of the Will. He has clearly stated that the testatrix was living with him in his residence during that point of time, after her father died. He has also spoken about the properties at D.Nos.77, 78 & 79, Mundakanadar Street, Sivakasi being adjoining portions having no partition walls. He has also stated that the testatrix has requested him, P.W.2 to call the Advocate, Mr.Santha Ram, a leading lawyer in Sivakasi to his residence and that in pursuance of the request, Mr.Santha Ram met testatrix and the Advocate requested P.W.2 to bring the document writer. Accordingly P.W.2 brought Adbul Sattar, the document writer and on the instructions of J.A.Rajapushpam and the Advocate, the document writer, Abdul Sattar prepared the Will, the draft of which was checked by the testatrix on the previous day i.e., 13.03.2002.
21.He has further stated that on 14.03.2002 in the morning, he went to the SRO to make arrangements for registration of the Will at his residence and that the Registrar had insisted on production of a medical certificate. He has further stated that in pursuance of the same, the Doctor visited and examined the testatrix at about 12 noon and gave a certificate regarding the sound and disposing state of mind and memory https://www.mhc.tn.gov.in/judis 15/23 TOS.No.7 of 2021 of the testatrix and that she could not sign only because of the fact that her hands were shivering. P.W.2 has further spoken about that the Registrar being satisfied with the medical certificate and agreeing to register the Will at the residence and that at about 5.30 p.m., the SRO came to his residence and the Will was executed and that the Registrar personally enquired the testatrix whether she was executing the Will out of her own will and wish and only after ascertaining the same, the testatrix affixed her left thumb impression in all the pages of the Will. P.W.2 signed the Will as the first attesting witness and A.Kumaravel signed as the second attesting witness. Thereafter, the document writer also signed in the Will and registration formalities were completed by the Sub-registrar and as identifying witnesses, P.W.2 and his wife, Bavani signed in the presence of the Sub-Registrar.
22.He has denied the suggestion that the testatrix was bedridden and she would not have executed any document or even put her left thumb impression. I do not find anything suspicious in the evidence adduced by P.W.2 and his evidence is natural and it inspires the confidence of the Court. The fact that the Sub-Registrar followed the prescribed procedure in the statute for registering the Will at the https://www.mhc.tn.gov.in/judis 16/23 TOS.No.7 of 2021 residence which is evidenced by the endorsements made on the reverse page of the original of the Will also raises presumption as to official act carried out by the Sub-Registrar. It is also stated by P.W.2 that necessary fee was paid and the medical certificate was produced. Though Mr.M.Kamalanathan would vehemently submit that the plaintiffs have not filed the medical certificate before the Court, the said medical certificate was produced only as a pre-requisite for the registration at the private residence and therefore, the original of the said medical certificate would have been produced to the SRO and would not be available with the propounder or P.W.2. Therefore, not much can be made out from the fact that the said medical certificate has not been produced on the side of the plaintiffs.
23.The evidence of P.W.2 clearly establishes that Ex.A4, Will was duly executed and attested in the manner known to law, especially Section 63(c) of the Indian Succession Act. I have no reason to disbelieve the evidence of P.W.2 regarding due execution and attestation of Ex.A4, Will.
24.Even though the learned counsel would submit that there is no https://www.mhc.tn.gov.in/judis 17/23 TOS.No.7 of 2021 reason for the testatrix to affix her left thumb impression in the Will and the Codicil, it is an admitted fact that even in the earlier Wills which were since revoked, the testatrix had affixed only her left thumb impression. No doubt, in September of previous year, she was in a position to sign, however, that does not mean that she was in a position to sign documents in Apri of the next year. Therefore, this again will not create any suspicion surrounding due execution and attestation of the Will, especially in the light of evidence of P.W.2 which has been discussed herein above. Suspicion cannot be based on mere surmises and conjectures, but shall be established or atleast brought out by strong evidence before the propounder can be called upon to dispute the same.
25.Even otherwise, when the defendant claims that the Will is not true and genuine, he has not chosen to take any action when his son took benefit under the very same Will, Ex.A4 and as one of the beneficiaries has taken portion of the sale consideration. The sales effected by the beneficiaries under Ex.A7 and Ex.A8 have never been questioned by the defendant. Thus, it is clear that the defendant is only sitting on the fence, like a cat on the wall, undecided as to how he should proceed. Admittedly, he has not filed any suit for partition. It really, it is the specific case that the properties were that of Jeyaraj Nadar or that https://www.mhc.tn.gov.in/judis 18/23 TOS.No.7 of 2021 Dr.C.Jeyaraj Ayyan Nadar had executed a Will and that the properties have to go only by the said Will, the defendant ought to have, as a prudent person taken diligent steps to find out the whereabouts of the said alleged Will of Dr.C.Jeyaraj Ayyan Nadar or atleast ought to have filed a suit for partition claiming his legitimate share in the properties. However, without taking any such action, the defendant has merely filed a caveat and chosen to challenge the above testamentary original proceedings, by merely attempting to throw wild suspicion.
26.Having held that the Will in Ex.A4 is true and genuine, the plaintiffs are entitled to grant of Letters of Administration in their favour, with the Will alone annexed. The decision in K.K.Selvam (Died) and Others Vs. Rajarajeswari and Others reported in 2023-3-L.W. 931 relied on by the learned counsel for the defendant is not applicable to the facts of the present case. In the said case the testator was admitted in the Intensive Care Unit, where visitors would not be easily allowed inside and in such circumstances, this Court held that it was improbable for execution of the Will by the testatrix, in the facts of that case. I do not find any germane suspicious circumstances surrounding in due execution and attestation of the Will.
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27.In the result:
(i) The suit is decreed and the Letters of Administration, having effect throughout Tamil Nadu, shall be issued in favour of the plaintiffs, with the Will dated 14.03.2002, annexed. In respect of the codicil, the Testamentary Original Suit is dismissed.
(ii) The plaintiffs are directed to duly administer the properties and credits of the deceased more fully described in the suit schedule.
(iii) The plaintiffs shall execute a security bond for a sum of Rs.25,000/- (Rupees twenty five thousand only) in favour of the Assistant Registrar (O.S-II), High Court, Madras.
(iv) The plaintiffs are further directed to make a full and true inventory of the property and credits of the deceased testatrix, J.A.Rajapushpam to be made and the same be exhibited before this Court, within six months from the date of grant of Letters of Administration to them and also to render a true account of the property and credits of the testatrix, within one year from the date of obtaining the grant.
(v) There shall be no order as to costs.
12.07.2024 Index : Yes/No https://www.mhc.tn.gov.in/judis 20/23 TOS.No.7 of 2021 Speaking/Non-speaking order ata Witnesses examined on the side of the plaintiffs:
P.W.1. - R.Thilagavathy P.W.2 - S.Surendran Exhibits produced on the side of the plaintiffs:
S.No. Exhibits Description
1. A-1 The Death Certificate of N.R.K.R.Ravindran dated
11.02.2020.(Marked by Advocate Commissioner)
2. A-2 The legal heirship certificate of N.R.K.R.Ravindran dated 13.05.2014. (Marked by Advocate Commissioner)
3. A-3 The Death Certificate of testator. (Marked by Advocate Commissioner)
4. A-4 The Will executed by J.A.Rajapushpam dated 14.03.2002. (Marked by Advocate Commissioner)
5. A-5 The Power of Attorney dated 23.07.2014. (Marked by Advocate Commissioner)
6. A-6 The writing marked “B” is the Codicil executed by the deceased on 15.03.2002 in the presence of the witness whose name appears at the bottom of the Codicil. (Marked by Advocate Commissioner)
7. A-7 The Sale Deed dated 06.02.2009. (Marked by Advocate Commissioner) 8 A-8 The Sale Deed dated 03.08.2005. (Marked by Advocate Commissioner) 9 A-9 The Sale Deed dated 03.04.1996. (Marked by Advocate Commissioner) 10 A-10 The signature of the 1st attesting witness in Ex.A4. 11 A-11 The petition and order filed in SOP.No.4/2002. 12 A-12 The Certified copy of the Sale Deed dated 22.10.1988.
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D.W.1 – D.Vijaya Sankar Documents marked on the side of the defendants:
S.No. Exhibits Description
1. D-1 The Death Certificate of Dr.Jeyaraj Ayyan Nadar.
(Marked by Advocate Commissioner)
2. D-2 The Death Certificate of M.S.P.A.C.Senthiammal.
(Marked by Advocate Commissioner)
3. D-3 The Death Certificate of C.Desigasankar. (Marked by
Advocate Commissioner)
4. D-4 The Death Certificate of R.Poothaiammal. (Marked by
Advocate Commissioner)
5. D-5 The letter dated 01.09.2001 signed by Rajapushpam.
(Marked by Advocate Commissioner)
6. D-6 A certified copy of the Will in Doc.No.57/2021.
7. D-7 A certified copy of the Will in Doc.No.09/2002.
8 D-8 The Will dated 09.07.2001 in Doc.No.56 of 2001.
9. C-1 The caveat petition.
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P.B.BALAJI,J.
ata
Pre-delivery judgment made in
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