Madras High Court
G.Sivaprakash … vs G.Thilak Thiyagarajan … on 29 October, 2021
Author: R.Subramanian
Bench: R.Subramanian
TOS No.16 of 2002
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.10.2021
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
T.O.S. No.16 of 2002
G.Sivaprakash … Plaintiff
Vs.
G.Thilak Thiyagarajan … Defendant
Prayer : Plaint filed under Sections 222 and 276 of the Indian Succession
Act XXXIX of 1925 for the grant of Probate.
For Plaintiff : Mr.G.Rajagopalan, Senior Counsel
for M/s.G.R.Associates
For Defendant : No appearance
JUDGMENT
The plaintiff seeks Probate in respect of the Will dated 09.05.1996 1/11 https://www.mhc.tn.gov.in/judis/ TOS No.16 of 2002 executed by his father Late Dr. T.Ganapathy, who died on 03.06.1996 leaving behind three sons and a daughter. His wife had predeceased him.
2. According to the plaintiff, the testator Late Dr.T.Ganapathy, was in sound disposing state of mind when he executed the Will on 09.05.1996 and it was attested by two attesting witnesses of whom, one was his very close associate Dr.T.Kamalsheriff. The other was also a Doctor who was a family friend, who happened to be a classmate of the first respondent Dr.Udesh Ganapathy, son of Late Dr.T.Ganapathy. It is also claimed that the Will refers to another Will dated 22.02.1995, in and by which, the testator had bequeathed his house property at Tambaram in favour of the eldest son, the defendant herein, Mr.G.Thilak Thiyagarajan.
3. The original Petition for grant of Probate was numbered as OP No.174 of 1997 and upon a caveat having been filed by the second respondent namely G.Thilak Thiyagarajan opposing the grant, the same was converted into a Testamentary Original Suit. The defendant filed a written 2/11 https://www.mhc.tn.gov.in/judis/ TOS No.16 of 2002 statement disputing the execution of a Will and claiming that he had the copy of the Will which was sent to him along with the notice of the counsel dated 15.07.1996 referred to an expert for his opinion and according to him, the Will is not validly executed by the testator.
4. This Court framed the following issues for trial:
1. Whether the deceased Dr.T.Ganapathy executed the Will dated 09.05.1996 while he was in a sound and disposing state of mind and in the presence of attesting witnesses;
2. Whether the Will dated 09.05.1996 is a genuine, true and valid document;
3. Whether the allegations made by the defendant that the above said Will dated 09.05.1996 was obtained by fraud and undue influence are true;
4. To what reliefs the parties are entitled to? 3/11
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5. At trial, the plaintiff was examined as P.W.1 and the first respondent Dr.Udesh Ganapathy, was examined as P.W.2. The two attesting witnesses were examined as P.W.3 and P.W.4 respectively. Exhibits P1 to P7 were marked on the side of the plaintiff. On the side of the defendant, he was examined as D.W.1 and Exhibits D1 to D16 were marked. Some of those exhibits were marked in cross-examination of P.Ws. 1 & 2.
6. When the Testamentary Original Suit was posted for arguments, the learned counsel for the defendant reported no instruction. Since the entire evidence of the defendant is already on record. I proceed to dispose of the suit on merits, in terms of Explanation to Rule 2 of Order XVII of the Code of Civil Procedure.
Issue Nos.1 & 2:
7. These issues relate to the execution of the Will by Late 4/11 https://www.mhc.tn.gov.in/judis/ TOS No.16 of 2002 Dr.T.Ganapathy. It is not in dispute that Late Dr.T.Ganapathy, was a professor of Social and Preventive Medicine in Madras Medical College and was a Doctor of repute. Both the attesting witnesses are qualified Medical Practitioners. The second attesting witness Dr.T,Kamalsheriff, who was examined as P.W.4, is aged about 70 years at the time of his examination and he had worked with Late Dr.T.Ganapathy, during his lifetime. Both the attesting witnesses have spoken about the execution of the Will by Late Dr.T.Ganapathy, in their presence and in sound disposing state of mind. Though both of them have been cross-examined extensively, their evidence with regard to the execution of the Will and the state of mind of the testator has not been discredited in any manner in cross-examination. The cross-examination runs to several pages, but the witnesses have been consistent in their evidence with reference to the execution of the Will by Late Dr.T.Ganapathy, in their presence and their signing the Will in his presence. The statutory requirements of Section 68 of the Evidence Act, have been sufficiently met by the evidence of P.W.3 and P.W.4. 5/11 https://www.mhc.tn.gov.in/judis/ TOS No.16 of 2002
8. P.W.1 and P.W.2 the beneficiaries under the Will have also been cross-examined with reference to various matters which do not have a bearing on the execution of the Will and the state of mind of the testator. I therefore do not think that I should detail on the oral evidence of P.Ws. 1 & 2 which, in my considered opinion, does not have a bearing on the issue that is raised namely the due execution and attestation of the Will. In view of the above, both issues Nos. 1 & 2 are answered in favour of the plaintiff. Issue No.3:
9. Though the defendant had claimed that the Will was obtained by fraud and undue influence, I do not see any evidence in support of such plea. The details of fraud or undue influence have not been set out in the written statement. Order VI Rule 4 of the Code of Civil Procedure requires the defendant who pleads fraud to set out the details of fraud. The same has not been done. Apart from the absence of details, the evidence is also wholly insufficient to support the said plea of fraud. Hence Issue No.3 is 6/11 https://www.mhc.tn.gov.in/judis/ TOS No.16 of 2002 also answered against the defendant in favour of the plaintiff.
10. In fine, the suit is decreed as prayed for. Probate will be issued to the plaintiff in respect of the Will dated 09.05.1996. No costs.
29.10.2021 jv Index: No Internet: Yes Speaking order 7/11 https://www.mhc.tn.gov.in/judis/ TOS No.16 of 2002 List of the Witnesses examined on the side of the Plaintiff :
1. P.W.1 G.Sivaprakash
2. P.W.2 Dr.Udesh Ganapathy
3. P.W.3 M.K.Rajasubramanian
4. P.W.4 Dr.T.Kamalsheriff List of Exhibits marked on the side of the Plaintiff :
Sl.No. Exhibits Description of documents 1 Ex.P1 Original Will dated 9.5.1996 executed by my father Dr.T.Ganapathy 2 Ex.P2 Original Death Certificate of my father dated 3.6.1996 3 Ex.P3 Legal heir certificate dated 01.08.2012 4 Ex.P4 Original legal notice dated 15.07.1996 issued by the defendants 2 and 3 5 Ex.P5 Office copy of the reply notice dated 18.7.1996 Ex.P6 Certified copy of the family arrangement dated 6 19.11.97 Ex.P7 Certified copy of the order dated 2.9.1999 made in 7 A.No.2876/98 List of the Witnesses examined on the side of the Defendant:
D.W.1 G. Thilak Thiyagarajan 8/11 https://www.mhc.tn.gov.in/judis/ TOS No.16 of 2002 List of Exhibits marked on the side of the Defendant:
Sl.No. Exhibits Description of documents 1 Ex.D1 The minutes of the Board Meeting Resolution passed by circulation on 11.7.94 2 Ex.D2 Photocopy of the Will certified by the plaintiff's counsel the enclosure 3 Ex.D3 Copy of the letter dated 2.6.97 4 Ex.D4 Copy of the letter dated 14.6.97 5 Ex.D5 Copy of the affidavit and petition and plaint in I.A.No.11478/96 in O.S.No.10452/96 6 Ex.D6 Original letter without date 7 Ex.D7 Certified copy of the affidavit of attesting witness Ex.D8 Certified copy of the affidavit of attesting witness dated 8 10.1.1997 Ex.D9 Identity card of Dr.T.Ganapathy father of the defendant 9 dated 4.7.1983 Ex.D10 Certified copy of the Will dated 24.2.1995 executed in 10 favour of the defendant Ex.D11 Office copy of the rejoinder notice by the defendant's 11 counsel dated 7.10.1996 Ex.D12 Original letter dated 10.9.1998 sent by Dr.Udesh 12 Ganapathy to Nagarathina Textiles Pvt Ltd., 13 Ex.D13 Legal notice dated 19.9.1998 14 Ex.D14 Original letter of intimation dated 16.10.1998 9/11 https://www.mhc.tn.gov.in/judis/ TOS No.16 of 2002 Sl.No. Exhibits Description of documents Ex.D15 Original letter dated 1.11.2004 sent by defendant to the 15 plaintiff Ex.D16 Certified copy of details of Nagarthina Textiles Pvt 16 Ltd., 29.10.2021 jv To The Sub Assistant Registrar, Original Side, High Court, Madras.10/11
https://www.mhc.tn.gov.in/judis/ TOS No.16 of 2002 R.SUBRAMANIAN,J.
jv T.O.S. No.16 of 2002 29.10.2021 11/11 https://www.mhc.tn.gov.in/judis/