Madras High Court
N.M.Narayanan @ Muthucaruppan vs M.Ramanathan
Tos.No.34 of 2010 & C.S.No.792 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on Judgment Pronounced on
26.04.2024 07.06.2024
CORAM:
THE HON`BLE MR.JUSTICE P.B.BALAJI
TOS.No.34 of 2010
& C.S.No.792 of 2007
TOS.No.34 of 2010:
1.N.M.Narayanan @ Muthucaruppan
2.AN.Nachammai Achi .. Plaintiffs
Vs.
1.M.Ramanathan
2.Subrahmaniyen .. Defendants
Prayer: Testamentary Original suit filed under Sections 232 and 276 of
the Indian Succession Act of XXXIX of 1925 for the grant of Letters of
Administration. Against this petition a Caveat was filed on 11 th day of
February 2009 by the Caveators above named. The supporting affidavit
was filed on the 11th day of February 2009. As per order of Court dated
29.06.2010 in O.P.No.51 of 2009, the Original Petition is directed to be
converted into Testamentary Original Suit.
For Plaintiffs : Mr.K.V.Babu
for Mr.R.Vishnu
For Defendants
For R1 & 2 : Mr.V.Ragavachari
Senior Counsel
https://www.mhc.tn.gov.in/judis
1/29
Tos.No.34 of 2010 & C.S.No.792 of 2007
for Mrs.V.Srimathi
C.S.No.792 of 2007:
1.M.Ramanathan
2.Subrahmaniyen
3.Muthukaruppan @ Solayiyappan .. Plaintiffs
Vs.
1.M.Narayanan
2.AN.Nachammai
3.Muthukarupan Chettiar .. Defendants
Prayer: This Civil Suit is filed under Order IV Rule 1 of the Original
Side Rules r/w Order VII Rule 1 of the Code of Civil Procedure, prayed
for a judgment and decree against the Defendants:-
a) pass a preliminary decree declaring 1/6th share each of the
plaintiffs in the schedule mentioned property;
b) to appoint an Advocate Commissioner to divide the property by
metes and bounds and allot one sixth share to each of the plaintiffs;
c) to pass such further or other orders and render justice and
d) to award costs of the proceedings.
For Plaintiffs : Mr.V.Ragavachari
Senior Counsel
for Mrs.V.Srimathi
For Defendants
For R1 & 2 : Mr.K.V.Babu
for Mr.R.Vishnu
https://www.mhc.tn.gov.in/judis
2/29
Tos.No.34 of 2010 & C.S.No.792 of 2007
COMMON JUDGMENT
The Original Petition No.51 of 2009 was initially filed seeking grant of Letters of Administration of the last Will and testament of Chittal Achi. However, after caveat being filed by the respondents 1 and 2 in the said Original Petition, the Testamentary Original Suit came to be numbered as TOS.No.34 of 2010.
2.Civil Suit in C.S.No.792 of 2007 has been filed by the three respondents in the Original Petition as plaintiffs, seeking partition and separate possession of a 1/6th share each in the suit schedule property.
3.The brief facts that are necessary to be stated for the purposes of adjudicating the present two suits are as follows:
The plaint in C.S.No.792 of 2007 in brief:
The plaintiffs are sons of Muthukaruppan Chettiar. The 1st defendant is also the son of the Muthukaruppan Chettiar. The defendants 2 and 3 are the parents of the plaintiffs and the 1st defendant. According to the plaintiffs, the parties to the suit constituted a Hindu joint family https://www.mhc.tn.gov.in/judis 3/29 Tos.No.34 of 2010 & C.S.No.792 of 2007 and the plaintiffs had instituted a Civil Suit in C.S.No.159 of 1990 before this Court for partition of the joint family properties. The said suit ended in a compromise and the same was recorded and a decree was passed holding that the parties would be entitled to 1/5th share each in the suit schedule property. The mother of the plaintiffs, Chittal Achi died on 12.02.2004 and pursuant to her demise, each of the plaintiffs became entitled to a 1/6th share each in the suit schedule property. When a lawyer's notice dated 01.08.2006 issued calling upon the defendants to come forward for effecting a partition, the defendants 2 and 3 contended that the mother had executed a Will on 31.10.2003. According to the plaintiffs, the Will is not a true and genuine and therefore, they are entitled to the relief of partition.
4.Written statement filed by the defendants 1 and 2 in the said suit:
The suit is liable to be dismissed for non payment of proper Court fee since the plaintiffs were never in possession of the suit property at any point of time. The status of joint family as pleaded in the plaint is incorrect since it came to an end on the plaintiffs filing C.S.No.159 of 1990 before this Court. The mother, Chittal Achi had left a registered Will dated 31.10.2003, registered in Doc.No.363 of 2003 on the file of the SRO, Trichy and therefore, the suit for partition was liable to be https://www.mhc.tn.gov.in/judis 4/29 Tos.No.34 of 2010 & C.S.No.792 of 2007 dismissed.
5.The Original Petition in brief:
Chittal Achi executed a registered Will dated 31.10.2003, registered as Doc.No.363 of 2003 in the office of the District Registrar, Trichy. The petitioners are son and daughter of the deceased Chittal Achi and also sole beneficiaries under the Will. The Will was duly executed in the presence of two witnesses and as beneficiaries, the petitioners prayed for grant of Letters of Administration.
6.Written statement filed by the defendants in TOS.No.34 of 2010:
The defendants have already filed Civil Suit in C.S.No.792 of 2007 for partition and the alleged Will is brought up only to defeat the rights of the plaintiffs in the partition suit. The Will is of the year 2003 and no probate was sought for until 2009. The Will has been executed at Trichy which is not the normal residence of the testatrix. The Will is concocted and fabricated and there is no cause of action for filing the Original Petition. The application is also hopelessly barred by limitation. Chittal Achi was old and not in her complete possession of her senses. She was not able to read and write legal writings. She had equal love and https://www.mhc.tn.gov.in/judis 5/29 Tos.No.34 of 2010 & C.S.No.792 of 2007 affection for all of her children and treated them alike. There is no reference to any of the defendants in the alleged Will and no reasons are assigned as to why they have been disinherited. The attestors are strangers and not known to the family. The Will is the handiwork of the plaintiffs and they have brought about the same by impersonation. The Testamentary Original Suit was therefore sought to be dismissed.
7.On 26.04.2011, the following issues were framed in Testamentary Original Suit:
“1.Whether the registered Will dated 31.10.2003 executed by Smt.Sittal Achi is true, genuine and valid?
2.Whether the plaintiffs are entitled to grant of Letters of Administration in respect of the registered Will dated 31.10.2003 executed by Smt.Sittal Achi?
3.To what other relief the parties are entitled to?”
8.On 26.04.2011, the following issues were framed in Civil Suit:
“1.Whether the plaintiffs are entitled to a decree for partition in respect of the suit schedule described property in view of registered Will dated 31.10.2003 executed by Smt.Sittal Achi?
2.To what other relief the parties are entitled to?” https://www.mhc.tn.gov.in/judis 6/29 Tos.No.34 of 2010 & C.S.No.792 of 2007
9.Though issues were independently framed in the both the above suits, joint trial was conducted and evidence was recorded in the suit for partition.
10.The 1st plaintiff examined himself as P.W.1 and the following exhibits were marked:
Ex.P1 is the original Encumbrance Certificate in respect of the suit property; Ex.P2 is the notarized copy of Death Certificate dated 05.10.2004 the deceased Chittal Achi; Ex.P3 is the original proceedings dated 30.03.2006 of the Sub-Registrar, Periyamet, regarding the objections given on registration of the suit schedule property; Ex.P4 is the original Legal Heir Certificate dated 20.06.2006 of the deceased Chittal Achi; Ex.P5 is the original Revenue Receipt dated 04.07.2006 issued to the 2nd plaintiff; Ex.P6 is the office copy (xerox) of lawyer's notice dated 01.08.2006 issued to the defendants; Ex.P7 is the returned postal cover issued on the 1st defendant; Ex.P8 is the original reply notice dated 23.08.2006 issued by the 3rd defendant; Ex.P9 is the original reply notice dated 23.08.2006 issued by the 2nd defendant; Ex.P10 is the office copy (xerox) of notice of rejoinder dated 28.08.2006 issued to the https://www.mhc.tn.gov.in/judis 7/29 Tos.No.34 of 2010 & C.S.No.792 of 2007 counsel for the 2nd defendant; Ex.P11 is the office copy (xerox) of notice of rejoinder dated 28.08.2006 issued to the counsel for 3rd defendant and Ex.P12 is the original reply dated 31.08.2006 to the rejoinder issued by the counsel for 2nd respondent.
11.The 1st plaintiff in Testamentary Original Suit was examined as D.W.1 and through him, the following exhibits were marked:
Ex.D1 is the copy of the plaint and suit summons of the partition suit in C.S.No.159 of 1990 before this Court; Ex.D2 is the copy of the complaint dated 11.10.2003 and the copy of the preliminary enquiry dated 28.12.2003; Ex.D3 is the Death Certificate of the deceased Chittal Achi who died on 12.02.2004; Ex.D4 is the original Will registered as Doc.No.363 of 2003 before the District Registrar, Trichy. Ex.D5 is the assets of Chittal Achi; Ex.D6 is the copy of the petition filed before the Company Law Board, Chennai in C.P.No.10 of 2004 by the plaintiffs in C.S.No.792 of 2007; Ex.D7 is the office copy of counter filed before the Company Law Board, Chennai in C.P.No.10 of 2004 and Ex.D8 is the certified copy of the order passed in Crl.O.P.No.39517 of 2003.
12.AN.Nachammai Achi, the 2nd plaintiff in TOS.No.34 of 2010 was examined as D.W.2 and Alagappan, one of the attesting witnesses https://www.mhc.tn.gov.in/judis 8/29 Tos.No.34 of 2010 & C.S.No.792 of 2007 was examined as D.W.3.
13.I have heard Mr.K.V.Babu, learned counsel for Mr.R.Vishnu, learned counsel for the plaintiffs in TOS.No.34 of 2010 and contesting defendants 1 and 2 in C.S.No.792 of 2007 and Mr.V.Raghavachari, learned Senior Counsel for Mrs.V.Srimathi, learned counsel for the plaintiffs in C.S.No.792 of 2007 and contesting defendants in TOS.No.34 of 2010.
14.The Testamentary Original Suit is taken up for discussion first since it will have a direct bearing on the result of the partition suit. The mother, Chittal Achi is said to have executed a registered Will on 31.10.2003. It is an admitted fact that she died within a span of four months thereafter i.e., on 12.02.2004. Chittal Achi had four sons and one daughter. The 1st plaintiff in the TOS is the eldest son and the 2nd plaintiff is the only daughter. According to the plaintiffs in TOS, the mother had come to stay with her daughter at Trichy and at that point of time, she has executed the last Will and testament on 31.10.2003 and it is also duly registered before the District Registrar, Trichy. According to the plaintiffs, the Will was executed in the presence of two witnesses and it satisfied the mandate of Section 63(c) of the Indian Succession Act r/w https://www.mhc.tn.gov.in/judis 9/29 Tos.No.34 of 2010 & C.S.No.792 of 2007 Section 68 of the Indian Evidence Act.
15.Mr.K.V.Babu, learned counsel would take me through the evidence of attesting witnesses and also the stand of the defendants contesting the testamentary instrument on the ground that the Will was brought about by impersonation. He would submit that on the same day on which the mother had executed a Will, the father also executed a Will at the very same place i.e., Trichy and Letters of Administration in respect of the Will has already been ordered and the said Will was never contested by the defendants. He would also take me through the contents of the Will which according to him clearly demonstrated the reasons for the bequests under the Will. He would also take me through Ex.P6, notice which was addressed to the father of the brothers of the plaintiffs and the averments in the said notice are contrary to the pleadings in the plaint in the partition suit. He would also refer to the reply notice in Ex.P8 issued by the father, apart from the reply by the 2nd plaintiff, the sister and the rejoinder by the plaintiffs in Ex.P9 and Ex.P10 respectively.
16.He would also refer to Ex.P6 where, the complaint was given https://www.mhc.tn.gov.in/judis 10/29 Tos.No.34 of 2010 & C.S.No.792 of 2007 by the plaintiffs in the partition suit against their own father and he would therefore contend that when the defendants in the TOS had acted against their own parents, they could not expect the mother to benefit them under her last Will and testament. He would further contend that the Will is a registered Will and therefore the delay was immaterial and would not invalidate the truth and genuineness of the instrument. He would also state that when the disinherited sons were enemical towards the parents, the said sons could not expect their mother to provide them any benefit under the Will. He would also contend that the stand taken by the plaintiffs in the partition suit that the property was a Hindu undivided family with ancestral nucleus stood disproved by the stand of the father in the reply notice by Ex.P8 dated 23.08.2006 and finally, he would conclude that having taken the plea of forgery and impersonation, the burden was only on the defendants to establish the same. According to the plaintiffs, the defendants have miserably failed to discharge the burden on them and on proof of due execution and attestation of the Will by examination of D.W.3, one of the attesting witnesses, the plaintiffs have become entitled to the grant as prayed for.
17.Per contra, Mr.V.Raghavachari, learned Senior Counsel for the https://www.mhc.tn.gov.in/judis 11/29 Tos.No.34 of 2010 & C.S.No.792 of 2007 plaintiffs in the partition suit would contend that the mother had no capacity to purchase the suit property and it was only an acquisition from and out of the joint family funds and therefore, the mother had no right to execute the Will. He would also contend that the execution of the Will is shrouded by mystery because the mother was a permanent resident of Chennai and when she had gone to Trichy to stay with her daughter for a couple of days, the Will is said to have been executed there. The witnesses are strangers to the family and it is a common practice in the community that the documents are witnessed only by known persons and not by strangers. He would also take me through the evidence of D.W.1 to D.W.3 and point out inconsistencies in the evidence and as to how the propounder failed to throw light on due execution and attestation. He would also stated that the Will was executed at the private residence and not at the Sub Registrar's Office and the same has not been duly explained by the propounder.
18.According to the learned Senior Counsel, the burden of proof is only on the defendants 1 and 2 i.e., the plaintiffs in the TOS and they have failed to discharge the burden of due execution and attestation of the Will. He would further stated that the Registrar having office 90 kms https://www.mhc.tn.gov.in/judis 12/29 Tos.No.34 of 2010 & C.S.No.792 of 2007 away is summoned when a Registrar's Office was located much closer to the place of residence of the 2nd plaintiff, the daughter. He would also highlight that there is absolutely no evidence as to how the Sub Registrar was contacted and the entire exercise of registration of the Will was gone about.
19.I have carefully considered the rival submissions and arguments advanced by the learned Senior Counsel for the plaintiffs in the suit for partition and the learned counsel for the defendants in the partition suit, who are the plaintiffs in the TOS.
20.Issue No.1 in CS.No.792 of 2007 & Issue No.1 in TOS.No.34 of 2010:
The main contention of the learned Senior Counsel for the plaintiffs in the suit for partition is that the mother had no independent source of income to purchase the suit property and it was only the property which was acquired out of the joint family nucleus and therefore, the property was very much available for partition. Further, the Will projected by the defendants was also not a true and genuine document and in such circumstances, the suit for partition was sought to https://www.mhc.tn.gov.in/judis 13/29 Tos.No.34 of 2010 & C.S.No.792 of 2007 be decreed. However, it is the specific case of the defendants that the Will dated 31.10.2003 is a true and genuine document and admittedly the property was purchased in the name of the mother and in such circumstances, the partition suit cannot be entertained and the Will being true and genuine the TOS had to be decreed.
21.With regard to this contention it is seen that in an earlier suit in C.S.No.159 of 1990, a partition suit, it is seen that the property which is subject matter of these suits was not included in the said suit for partition. The earlier suit for partition was filed on the footing that the properties set out in the schedule to that suit were all joint family properties with ancestral nucleus and were liable to be partitioned. The suit schedule property was very much available on the said date and it had been purchased in the name of the mother, Chittal Achi. Consciously, the said property was left out from the earlier suit schedule and therefore, it only leads to the irrefutable conclusion that the suit schedule property was never treated as ancestral or joint family property of the family, but only the separate property of the mother, Chittal Achi. In fact, the father in his reply, has categorically stated that it is a separate property of the mother and it is not a family property available for https://www.mhc.tn.gov.in/judis 14/29 Tos.No.34 of 2010 & C.S.No.792 of 2007 partition. Therefore, I have no hesitation in holding that the mother was the absolute owner of the suit schedule property which is also the subject matter of the Will and she was entitled to execute a Will treating it as her own property.
22.Coming to the next crucial aspect, namely, the truth and genuineness of the Will, according to the defendants i.e., plaintiffs in the suit for partition, the Will is a fabricated document which has been brought about by act of forgery and impersonation. The grant is also sought for more than the period of three years from the date of death of the testatrix and therefore, barred by limitation.
23.In this regard I have examined the evidence adduced by the parties. The attesting witness, who was examined as D.W.3, in his chief examination, has stated that he knew the father of the parties, Muthukaruppan Chettiar, for more than 22 years before his demise and that he has also attended his 80th birthday ceremony at Koppanampatti. He has identified his signature in Ex.D4, Will and has also identified the signature of Chittal Achi, the testatrix and the other attesting witness, Ramasamy. He has also spoken about Muthukaruppan Chettiar, the https://www.mhc.tn.gov.in/judis 15/29 Tos.No.34 of 2010 & C.S.No.792 of 2007 father, having executed his registered Will on the same day. He has further stated that the father wanted him i.e., D.W.3 to help him execute and register the Will since his sons had given a criminal complaint against him and his wife and therefore, D.W.3 took the help of a document writer and contacted Mr.Thomas at the Sub Registrar Office. He has stated that both Muthukaruppan Chettiar and Chittal Achi gave instructions to document writer to prepare the Will and that after preparing the Will, both of them read the contents of the Will and thereafter signed the Will. He has also stated that the Will was registered in the evening and Mr.Thomas, brought the Sub Registrar by paying necessary charges. He has spoken about the due execution and attestation of the Will.
24.In cross-examination, he has stated that he used to borrow hand loan from Muthukaruppan Chettiar and return the same without interest. He has also stated that he has visited Muthukaruppan Chettiar's house two or three times and met him at the temple frequently. He has stated that he does not know Mr.Thomas personally. He has further stated that both Muthukaruppan Chettiar and Chittal Achi were hale and healthy. He had denied the suggestions that Chittal Achi did not sign Ex.D4, Will https://www.mhc.tn.gov.in/judis 16/29 Tos.No.34 of 2010 & C.S.No.792 of 2007 and that Ex.D4 was brought about by impersonation. He has further admitted that there is SRO in Ponnamaravathi and that the distance between the Koppanampatti and Ponnamaravathi is about 3 kms. He has denied the suggestion that he is giving false evidence.
25.The Will was admittedly executed at the residence of D.W.2, AN.Nachammai Achi. She has stated in her cross-examination that the mother was a housewife and she did not know the source of income of the mother. She further stated that only when the Dindugal property was sold, disputes arose between the plaintiffs and their mother. She has stated that the attesting witness, Alagappan who knew her father brought the Sub Registrar to her house on 31.10.2003. She has also stated that at the time of her mother's death, the plaintiffs in the suit for partition attended the death but they did not come to the cemetery. She has further stated that the father was possessing Ex.D4, Will during his lifetime and after his death it was given to D.W.1, her eldest brother. She has denied the suggestion that the Will was prepared only after the notice demanding partition was issued. She also denied the suggestion that Ex.D4, Will was brought about by practicing impersonation and it was not executed by the mother. D.W.2 has also stated that only in order to https://www.mhc.tn.gov.in/judis 17/29 Tos.No.34 of 2010 & C.S.No.792 of 2007 avoid arrest and embarrassment because of the complaint lodged by the plaintiffs in the partition suit, the parents came to her house and stayed there with her and during such time, the Will was executed.
26.The eldest brother, the 1st plaintiff in the TOS was examined as D.W.1 and he has spoken about the earlier suit for partition in CS.No.159 of 1990 and the compromise decree passed thereunder. He has denied the suggestion that the suit property is joint family property and not the separate property of the mother. He has also denied the suggestion put to him that his mother never executed Wills and they were brought about by impersonation. The evidence adduced on the side of the defendants clearly establishes the following:
(i)The Will was executed and registered on the same day at the residence of the daughter at Trichy.
(ii)The fact that the Will has been registered raises the presumption as to atleast the fact that such a document was registered at the said place on the said date, even if it cannot lead to any presumption regarding truth and genuineness of the Will.
27.Therefore, it is clear that the Will was executed and registered https://www.mhc.tn.gov.in/judis 18/29 Tos.No.34 of 2010 & C.S.No.792 of 2007 by the mother, Chittal Achi on 31.10.2003 at Trichy at the residence of the 2nd plaintiff, AN.Nachammai Achi. The endorsement made by the registering authority also confirms the fact that the Will was executed on 31.10.2003 at Trichy. The District Registrar, Trichy has also made a handwritten endorsement that the Will was registered between 5.45 p.m., and 6.10 p.m., at the residence of the 2nd plaintiff, AN.Nachammai Achi. The two attesting witnesses, Alagappan and Ramasamy have also identified the signature and left thumb impression of Chittal Achi at the time of registration the Will. Therefore, the allegation that the Will was brought about by forgery and impersonation cannot be countenanced. The registration of the Will raises a presumption that the official acts were duly carried out by the registering authority. The defendants having taken a specific stand that the Will was forged and brought by impersonation, the burden of proof is only on the defendants to establish such plea of impersonation and forgery. However, such burden shifts only upon the propounder discharging the initial onus regarding due execution and attestation of the Will.
28.In this regard, I have already discussed and also gone through the evidence of D.W.1 to D.W.3. The evidence of D.W.3 satisfies the https://www.mhc.tn.gov.in/judis 19/29 Tos.No.34 of 2010 & C.S.No.792 of 2007 requirements of Section 63(c) of the Indian Succession Act r/w Section 68 of the Indian Evidence Act. The Will, as already indicated, having been registered clearly raises a presumption regarding atleast the official act of registration which demolishes the theory of the Will having been brought into existence after the notice of partition had been issued. The evidence of D.W.3 is natural and cogent and there is no reason to disbelieve the evidence of D.W.3 regarding his attestation of the Will and also due execution of the Will of Chittal Achi.
29.One another compelling reason for upholding the truth and genuineness of Ex.D4, Will is the fact that the father also executed a registered Will on the same day. However, there is no opposition or objection to the said Will of the father, which is also executed under identical and similar circumstances. It is informed that the Letters of Administration in respect of the father's Will has already been granted and the matter has attained finality. In such circumstances, it is not known how the defendants in the TOS can attack only the Will of the mother while allowing the father's Will to be accepted and acted upon.
30.No doubt, the learned Senior Counsel has raised certain aspects https://www.mhc.tn.gov.in/judis 20/29 Tos.No.34 of 2010 & C.S.No.792 of 2007 suggesting suspicious circumstances. Ordinarily, when suspicious circumstances are highlighted or brought up, it is the duty of the propounder to dispel such suspicious circumstances. The concerns regarding genuineness of the Will as raised by the learned Senior Counsel are that the mother was a normal resident of Chennai and therefore, there was no reason for her to go to Trichy and execute a Will and that too, the Registrar, who situate 90 kms away was brought to the residence of the daughter when another SRO was located more proximate to the residence of the daughter. The registration of a Will is not mandatory and it is only an additional circumstance that may strengthen the truth and genuineness of the Will. The law is well settled that mere registration does not decide the authenticity of the Will. However, it is for the testatrix to choose the place where she desires to execute her last Will and testament Merely because she is a permanent resident of Chennai, it is not necessary that the Will should always be executed only at Chennai and not at any other place.
31.Admittedly, it is not in a dispute that the daughter of the testatrix resides in Trichy and the fact that the Will has been registered on the same day on 31.10.2003 goes to show that the mother was very https://www.mhc.tn.gov.in/judis 21/29 Tos.No.34 of 2010 & C.S.No.792 of 2007 much available only at Trichy on the said date and therefore, I do not see this as a grave mystery or suspicious circumstance to suspect due execution of the Will.
32.With regard to the witnesses being strangers and no clarity in the evidence regarding how the Sub Registrar was spoken to and brought home etc., I do not see these also as vitiating factors. As already stated and at the risk of reputation, execution of the Will is the fundamental aspect which has to be tested and the registration formalities which are only consequent, only lend strength and support to the execution and suspicion surrounding registration cannot be a valid ground to invalidate the due execution of the Will which is otherwise proved to be true and genuine. Therefore, these factors like how the Sub Registrar was brought home etc., cannot be legitimate grounds to suspect due execution of the Will, especially, when the endorsement of the official, namely the registering authority is clearly pointing to the fact that the deceased testatrix had registered the Will in his presence, that too the registration having been done at the private residence, namely the residence of the daughter of the testatrix.
https://www.mhc.tn.gov.in/judis 22/29 Tos.No.34 of 2010 & C.S.No.792 of 2007
33.With regard to the non mentioning of the sons of the testatrix or reasons for disinheritance in the Will, normally one would expect a person executing a Will to disclose reasons for bequests and reasons for disinheriting close relatives. However, merely because these are absent, it would not be a ground to straight away brand the Will as not true and not genuine.
34.Admittedly, the plaintiffs in the partition suit had lodged a police complaint against their parents and this factum is not in dispute. No doubt, it was relating to the business and sale of the property at Dindugul. However, when the sons had gone to the extent of lodging a police complaint against the father and mother, one would definitely not expect the father and mother to give properties to such sons who have turned hostile. Therefore, the normal conduct of the mother in disinheriting the defendants cannot be doubted or suspected.
35.With regard to the arguments about the contents, averments in the Will, there is no specific format in which the Will is required to be written. The Will is the last wish of the testator or testatrix and it is left to https://www.mhc.tn.gov.in/judis 23/29 Tos.No.34 of 2010 & C.S.No.792 of 2007 the discretion of the maker of the Will to employ such language or phraseology as he or she may deem fit. Therefore, merely because the Will does not disclose reasons or does not mention about the defendants, I do not see these as suspicious circumstances to invalidate the Will, especially in the light of other surrounding circumstances.
36.In fact, P.W.1, in his cross-examination, has stated that he has no personal knowledge whether the Will was forged or there was any impersonation in execution and registration of the Will and that he has said so only because the mother had not equally provided to all the children. Therefore, it is a clear case when disgruntled legal heirs have chosen to claim that the Will was forged and brought about by impersonation, more out of frustration. In any event, there is absolutely no shred of evidence to substantiate the plea of forgery or impersonation and when the initial burden of the propounder is discharged by examination of D.W.3, one of the attesting witnesses, the burden stands shifted to the defendants to prove their allegations of forgery and impersonation. There is total failure on the part of the defendants to establish such plea raised in defense. In such circumstances, I have no hesitation in holding that the Will in Ex.D4 has been duly proved to have been validly executed and attested as required under the law and requires https://www.mhc.tn.gov.in/judis 24/29 Tos.No.34 of 2010 & C.S.No.792 of 2007 to be upheld. Therefore, the issues are answered accordingly.
37.Issue No.2 in CS.No.792 of 2007 issue No.2 in TOS.No.34 of 2010:
In view of the findings in upholding the truth and genuineness of the Will, Ex.D4, the plaintiffs are not entitled to any relief for partition and separate possession and on the contrary, the plaintiffs in TOS are entitled to grant the Letters of Administration. These issues are accordingly answered.
38.In the result, The suit in C.S.No.792 of 2007 is dismissed and the TOS.No.34 of 2010 is decreed and Letters of Administration shall be issued in favour of the plaintiffs with the Will dated 31.10.2003, annexed.
(ii) The plaintiffs in TOS.No.34 of 2010 are directed to duly administer the properties and credits of the deceased more fully described in the affidavit of assets.
(iii) The plaintiffs in TOS.No.34 of 2010 shall execute an indemnity 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, https://www.mhc.tn.gov.in/judis 25/29 Tos.No.34 of 2010 & C.S.No.792 of 2007 within a period of three months from today.
(iv) The plaintiffs in TOS.No.34 of 2010 are further directed to make a full and true inventory of the property and credits of the deceased testatrix, Chittal Achi 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.
07.06.2024 Index : Yes/No Speaking/Non-speaking order ata Note: Registry is directed to return the original documents.
Witnesses examined on the side of the plaintiffs:
P.W.1. - Ramanathan Exhibits produced on the side of the plaintiffs:
S.No. Exhibits Description
1. P-1 Original Encumbrance Certificate in respect of
the suit property.
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Tos.No.34 of 2010 & C.S.No.792 of 2007
2. P-2 Notarized copy of Death Certificate dated
05.10.2004 the deceased Chittal Achi.
3. P-3 Original proceedings dated 30.03.2006 of the
Sub-Registrar, Periyamet, regarding the
objections given on registration of the suit
schedule property.
4. P-4 Original Legal Heir Certificate dated
20.06.2006 of the deceased Chittal Achi.
5. P-5 Original Revenue Receipt dated 04.07.2006
issued to the 2nd plaintiff.
6. P-6 Office copy (xerox) of lawyer's notice dated
01.08.2006 issued to the defendants.
7. P-7 Returned postal cover issued on the 1st
defendant.
8 P-8 Original reply notice dated 23.08.2006 issued
by the 3rd defendant.
9 P-9 Original reply notice dated 23.08.2006 issued
by the 2nd defendant.
10 P-10 Office copy (xerox) of notice of rejoinder
dated 28.08.2006 issued to the counsel for the
2nd defendant.
11 P-11 Office copy (xerox) of notice of rejoinder
dated 28.08.2006 issued to the counsel for 3rd
defendant.
12 P-12 Original reply dated 31.08.2006 to the
rejoinder issued by the counsel for 2nd
respondent.
Witnesses on the side of the defendants:
D.W.1. - N.M.Narayanan
D.W.1. - AN.Nachammai Achi
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Tos.No.34 of 2010 & C.S.No.792 of 2007
D.W.3. - Alagappan
Documents on the side of the defendants:
S.No. Exhibits Description
1. D-1 Copy of the plaint and suit summons of the
partition suit in C.S.No.159 of 1990 before
this Court.
2. D-2 Copy of the complaint dated 11.10.2003 and
the copy of the preliminary enquiry dated
28.12.2003.
3. D-3 Death Certificate of the deceased Chittal Achi
who died on 12.02.2004.
4. D-4 Original Will registered as Doc.No.363 of
2003 before the District Registrar, Trichy.
5. D-5 Assets of Chittal Achi.
6. D-6 Copy of the petition filed before the Company
Law Board, Chennai in C.P.No.10 of 2004 by
the plaintiffs in C.S.No.792 of 2007.
7. D-7 Office copy of counter filed before the
Company Law Board, Chennai in C.P.No.10
of 2004.
8 D-8 Certified copy of the order passed in
Crl.O.P.No.39517 of 2003.
07.06.2024
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Tos.No.34 of 2010 & C.S.No.792 of 2007
P.B.BALAJI,J.
ata
Pre-delivery judgment made in
TOS.No.34 of 2010
& C.S.No.792 of 2007
07.06.2024
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