Madras High Court
E.Rajalakshmi vs C.Jaichander
TOS.No.6 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on Judgment Pronounced on
29.04.2024 14.06.2024
CORAM:
THE HON`BLE MR.JUSTICE P.B.BALAJI
TOS.No.6 of 2012
(O.P.No.913 of 2010)
E.Rajalakshmi .. Plaintiff
Vs.
1.C.Jaichander
2.Thirumala Thirupathi Devasthanams,
Tirupati, Andhra Pradesh,
Rep. by its Executive Officer. .. Defendants
[Amendment carried out as per
order dated 23.09.2016 in
A.No.4178 of 2016 in T.O.S.No.6
of 2012]
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. Against this petition a Caveat was filed on 11th day of April
2011 by the Caveator above named. The supporting affidavit was filed on
11th day of April 2011. As per order of Court dated 29.02.2012 in
O.P.No.913 of 2010, the Original Petition is directed to be converted into
Testamentary Original Suit.
For Plaintiff : Mr.K.V.Babu
https://www.mhc.tn.gov.in/judis
1/48
TOS.No.6 of 2012
For Defendants
For R1 : Mrs.Chitra Sampath
Senior Counsel
for Mr.T.S.Baskaran
For R2 : Mr.Phahlad Bhat
JUDGMENT
The Original Petition No.913 of 2010 was initially filed seeking grant of Letters of Administration with certified copy of the Will dated 09.07.1995, executed by Dr.C.Bagyalakshmi in favour of the petitioner, one of the legatees under the Will.
2.The son of the testatrix, Dr.C.Bagyalakshmi objected to the grant of Letters of Administration and filed a Caveat, in pursuance of which, the Original Petition was converted into the above Testamentary Original Suit.
3.The brief necessary facts culled out from the petition/plaint are as hereunder:
The deceased, Dr.C.Bagyalakshmi executed her last Will and testament on 09.07.1995. The said Dr.C.Bagyalakshmi died on 06.09.1995 and the Will was executed by her in a sound disposing state of mind and it https://www.mhc.tn.gov.in/judis 2/48 TOS.No.6 of 2012 was duly attested by two witnesses, namely Mr.A.Sriram and Mr.P.Murali. Hence, the grant was prayed for.
4.The necessary facts culled out from the written statement are as hereunder:
The 1st defendant denies the execution of the Will dated 09.07.1995 and contends that the Will produced by the plaintiff is a forged instrument and it was never executed by his mother. The 1st defendant had filed O.S.No.7861 of 1996 before the City Civil Court at Chennai, for safeguarding his interest in the properties which are subject matter of the Will. Only in the said suit, the father of the plaintiff had alleged that the 1st defendant's mother had executed the subject Will, bequeathing the properties in favour of her sister, J.Girija and her children. The said suit was also decreed after contest on 31.03.2002 and the same became final. The 1st defendant is the absolute owner of half share in the properties which are subject matter of the Will. In so far as the other immovable properties inherited by his mother, through her husband and movables mentioned in the Will being the absolute properties of his mother, as the only surviving legal heir of the deceased, Dr.C.Bagyalakshmi, the 1st defendant has inherited the same and consequently, became the absolute owner. It is also contended by https://www.mhc.tn.gov.in/judis 3/48 TOS.No.6 of 2012 the 1st defendant that even during the lifetime of the father of the plaintiff, the alleged Will having been propounded, no steps have been taken to obtain grant of Probate or Letters of Administration during his lifetime and until his death on 22.01.2007. The delay of 17 years renders the suit barred by limitation and the suit is hit by the provisions of Article 137 of Limitation Act, 1963. The mother of the 1st defendant, namely the testatrix was always very affectionate towards the 1st defendant and there is no reason to disinherit the defendant. The Will was not duly executed or attested as required under law and on these grounds, the defendant prayed for dismissal of the Original Petition.
5.The plaintiff filed a reply statement meeting the allegations made in the written statement and reiterating that the Will had been duly executed and attested as mandated under the statutory provisions envisaged both under the Indian Succession Act as well as the Indian Evidence Act. It is also contended by the plaintiff that the grant sought for is within time and not barred by limitation. The claim in the written statement that the mother was very affectionate towards her son, the 1st defendant is also totally denied and it is contended that the mother was not in cordial terms and the plaintiff was personally aware of the 1st defendant physically assaulting his mother on two https://www.mhc.tn.gov.in/judis 4/48 TOS.No.6 of 2012 occasions. The plaintiff therefore prayed for the suit being decreed as prayed for.
6.On 14.06.2013, the following two issues were framed by this Court:
“1.Whether the Will dated 09.07.1995 is validly executed and attested by Dr.Mrs.C.Bagyalakshmi?
2. Whether the Will dated 09.07.1995 of Dr.Mrs.C.Bagyalakshmi is a true and genuine one?”
7.On 20.03.2018, the following additional issues were framed by this Court:
“1.Whether the explanation of the plaintiff with respect to the non-production of original Will said to be dated 09.07.1995 is acceptable?
2.Whether the plaintiff is entitled to rely on certified copy of xerox copy of the Will said to be dated 09.07.1995?
3.Whether the plaintiff has properly explained the delay, in approaching the Court seeking proof of the Will?
4.Whether the Will said to be dated 09.07.1995 is properly executed and attested as per law?
5.Whether the Will had been executed in a sound state of mind?”
8.Issues:
https://www.mhc.tn.gov.in/judis 5/48 TOS.No.6 of 2012 Considering the nature of the relief sought for, all the issues are taken up together for consideration.
The plaintiff examined herself as P.W.1 and Advocate, Mr.Ashok Menon, was examined as P.W.2. One of the attesting witness, Mr.P.Murali was examined P.W.3 and Mr.A.Sekar, who was appointed as one of the executors under the said Will was examined as P.W.4 and one Mr.Dilip Mathew John, an Advocate attached to the office of P.W.2, Mr.Ashok Menon was examined as P.W.5.
9.On the side of the plaintiff, the following documents were marked:
Ex.P1 is the photocopy of the death certificate of Dr.(Mrs.) C.Bagyalakshmi; Ex.P2 is the certified copy of the photocopy of the Will (unregistered) executed by the deceased Mrs.Dr.C.Bagyalakshmi dated 09.07.1995; Ex.P3 is the certified copy of the letter issued by the Advocate Mr.Ashok Menon to Mr.Cavala Parthasarathy Chettiar dated 01.02.1996;
Ex.P4 is the certified copy of the letter issued by Mr.Ashok Menon to the 1st defendant dated 22.02.1996; Ex.P5 is the certified copy of the letter issued by the 1st defendant to Mr.A.Sekar and Mr.K.Azhaguraman, Executors of the Will; Ex.P6 is he certified copy of the order passed in Application No.280 of 1986 along with Affidavit and petition of Dr.(Mrs.) https://www.mhc.tn.gov.in/judis 6/48 TOS.No.6 of 2012 C.Bagyalakshmi dated 07.08.1986; Ex.P7 is the certified copy of the order passed in Application No.280 of 1986; Ex.P8 is the certified copy of the order in Application No.693 of 2009 dated 01.07.2009; Ex.P9 is the certified copy of the counter affidavit filed by Mr.A.Sekar dated 18.12.2009; Ex.P10 is the office copy of the counter affidavit filed by Mr.J.Venkatramana (4th respondent in OP) dated 17.09.2010; Ex.P11 is he affidavit and judges summon in A.No.721 of 2010 dated January 2009; Ex.P12 is the certified copy of the order passed in A.No.720 & 721 of 2010 dated 22.10.2010; Ex.P13 is the letter/notice dated 28.07.2010 issued by the plaintiff to 7th and 8th respondents; Ex.P14 is the letter issued by the plaintiff dated 22.09.2010 to the 7th and 8th respondents; Ex.P15 is the letter dated 25.10.2010 issued by the plaintiff to respondents 7 and 8 in O.P.; Ex.P16 is the letter issued by the plaintiff's lawyer to 7th and 8th respondents along with acknowledgement card; Ex.P17 is the photocopy of the petition filed in O.P.Diary No.18777 of 2011 for the grant of probate by Mr.A.Sekar; Ex.P18 is the copy of the letter dated 13.05.2013 issued by the plaintiff to the counsel for Mr.A.Sekar to produce the copy of the petition along with courier slip which was returned by the Registry; Ex.P19 is the office copy of the affidavit dated 23.04.2014 issued by Mr.Ashok Menon; Ex.P20 is the photocopy of the petition; Ex.P21 is the photocopy of the letter dated 13.05.2013; Ex.P22 is the photocopy of https://www.mhc.tn.gov.in/judis 7/48 TOS.No.6 of 2012 the Sale Deed dated 21.06.2008; Ex.P23 is the photocopy of the said Partition Deed dated 09.05.2008; Ex.P24 is the photocopy of the said Release Deed dated 28.05.2008 and Ex.P25 is the copy of the letter dated 11.09.1995.
10.Mr.C.Jaichander, who is the son of the testatrix examined himself as D.W.1 and through him the following documents were marked:
Ex.D1 is the letter dated 17.04.2008; Ex.D2 is the letter dated 07.08.2008; Ex.D3 is the letter dated 14.03.2008; Ex.D4 is the written statement of 5th defendant; Ex.D5 is the plaint in O.S.No.2521 of 2008;
Ex.D6 is the plaint in O.S.No.962 of 2008; Ex.D7 is the certified copy of the judgment and decree in OS.No.7861 of 1996; Ex.D8 is the certified copy of the judgment in RCA.Nos.302 & 336 of 1994; Ex.D9 is the decree in RCA No.302 of 1994; Ex.D10 is the decree in RCA No.336 of 1994; Ex.D11 is the judgment in CRP.NPD.No.10119 of 2006; Ex.D12 is the letter dated 07.02.1996 by defendant to P.W.2; Ex.D13 is the letter dated 02.03.1996 by P.W.2 to defendant; Ex.D14 is the letter dated 12.03.1996 with postal acknowledgment from defendant to P.W.2; Ex.D15 is the letter dated 15.03.1996 from P.W.2 to defendant; Ex.D16 is the letter dated 18.03.1996 from defendant to P.W.2 with postal acknowledgment card; Ex.D17 is the https://www.mhc.tn.gov.in/judis 8/48 TOS.No.6 of 2012 letter dated 28.03.1996 from P.W.2 to defendant; Ex.D18 is the Telegram dated 29.03.1996 issued by P.W.2 to defendant; Ex.D19 is the letter dated 03.04.1996 with postal acknowledgment by defendant to P.W.2; Ex.D20 is the letter dated 08.04.1996 by P.W.2 to defendant; Ex.D21 is the letter dated 08.04.1996 by defendants to P.W.2 with postal acknowledgment card; Ex.D22 is the letter dated 11.04.1996 by defendant to P.W.2 with postal acknowledgment card; Ex.D23 is the letter dated 11.04.1996 by defendant to P.W.2 with postal acknowledgment card; Ex.D24 is the letter dated 22.04.1996 by defendant to P.W.2; Ex.D25 is the letter dated 25.04.1996 by defendant to P.W.2 with postal acknowledgment card; Ex.D26 is the letter dated 03.05.1996 by P.W.2 to defendant; Ex.D27 is the letter dated 02.08.2006 from State Bank of India to M/s.Menon and Goklaney Associates; Ex.D28 is the legal notice dated 08.07.1999 issued by P.W.2 on behalf of defendant; Ex.D29 is the reply dated 13.07.1999; Ex.D30 is the letter dated 04.09.1999; Ex.D31 is the memo dated 27.01.2014; Ex.D32 is the affidavit of Ashok Menon in A.No.3884 of 2013 in TOS.No.6 of 2012; Ex.D33 is the order CMP Nos.10118 & 10119 of 2006 in CRP.NPD.No.904 of 2003 dated 18.12.2006; Ex.D34 is the affidavit of Mr.A.Sekar filed in A.No.3885 of 2013 in TOS.No.6 of 2012; Ex.D35 is the affidavit and judges summon in A.Nos.7877 & 1299 of 2014 in TOS.No.6 of 2012; Ex.D36 is the https://www.mhc.tn.gov.in/judis 9/48 TOS.No.6 of 2012 letter dated 01.07.1995; Ex.D37 is the telegram sent by Late Dr.C.Bagyalakshmi dated 25.03.1995 and Ex.D38 is the Medical Certificate issued by Dr.C.Bagyalakshmi dated 11.09.1994.
11.Pending Testamentary Original Suit, Thirumala Thirupathi Devasthanams, Tirupati, Andhra Pradesh, represented by its Executive Officer was impleaded as the 2nd defendant, being one of the beneficiaries under the Will dated 09.07.1995 executed by Dr.C.Bagyalakshmi.
12.However, no separate written statement has been filed by the 2nd defendant and no oral or documentary evidence has also adduced by the 2nd defendant.
13.I have heard Mr.K.V.Babu, learned counsel for the plaintiff and Mrs.Chitra Sampath, learned Senior Counsel appearing for Mr.T.S.Baskaran, learned counsel for the 1st defendant and Mr.Prahlad Bhatt, learned counsel for the 2nd defendant.
14.Mr.K.V.Babu, learned counsel for the plaintiff would take me through the pleadings and also the oral evidence. He would submit that the https://www.mhc.tn.gov.in/judis 10/48 TOS.No.6 of 2012 original Will has not been produced and only the certified copy of the photocopy of the Will, which was marked by the 1st defendant himself in the City Civil Court, has been filed along with the Original Petition seeking grant of Letters of Administration.
15.Mr.K.V.Babu, learned counsel for the plaintiff would invite my attention to Application No.693 of 2009, where, the plaintiff sought for issuance of a citation to the executors, namely A.Sekar and K.Azhaguraman, who had been appointed as executors under the Will dated 09.07.1995. The said application came to be ordered on 01.07.2009 and even thereafter, the original Will was not produced by the executors.
16.Subsequently, Application No.869 of 2009 has been filed by the plaintiff under Section 229 of the Indian Succession Act and in the said application, one of the executor, namely Mr.A.Sekar who was examined as P.W.4 filed a counter stating that he was willing to file the application for probate. However, since no steps were taken thereafter, the plaintiff filed Application Nos.720 & 721 of 2010. In A.No.720 of 2010, permission was sought for as contemplated under Section 235 of the Indian Succession Act and in Application No.721 of 2010 citation was sought to be issued to https://www.mhc.tn.gov.in/judis 11/48 TOS.No.6 of 2012 produce the Will. Despite the said applications being ordered, the original Will was never produced.
17.The learned counsel for the plaintiff would further submit that the testatrix died only on 06.09.1995, within two months after the execution of the Will and immediately upon the demise of his mother, the 1st defendant attempted to take control and filed O.S.No.7861 of 1996 and also obtained an order of injunction to restrain the plaintiff from disturbing the 1st defendant's peaceful possession and enjoyment of the immovable property under the occupation of the 1st defendant. In fact, a suit has also been filed in C.S.No.182 of 2009 for partition and the same is pending in view of the proceedings for grant of Letters of Administration in the above suit.
18.Mr.K.V.Babu, learned counsel for the plaintiff would invite my attention to the order dated 05.03.2018 passed by this Court in Application Nos.3884, 3885 and 3886 of 2013 and A.No.1299 of 2014 in TOS.No.6 of 2012. The order passed by this Court in the above said applications assumes significance, about which I will deal with later.
19.The learned counsel for the plaintiff would further invite my https://www.mhc.tn.gov.in/judis 12/48 TOS.No.6 of 2012 attention to Exs.A6, A7, A8, A12, A15 and A19. He would also take me through the oral evidence adduced by P.W.2 to P.W.5 and contend that there was nothing unnatural in the evidence adduced by the witnesses. He would also state that the evidence adduced by P.W.2 r/w evidence of P.W.3 to P.W.5 would clinchingly establish that the Will was duly executed by Dr.C.Bagyalakshmi, in a sound and disposing state of mind, memory and understanding and there was nothing suspicious about the execution of the Will warranting the suit to be dismissed. He would also contend that under the Will, the testatrix had not bequeathed the properties inherited through her husband and this would again only go to show that the dispositions in the Will are very fair, natural and reasonable.
20.He would also refer to O.P.No.599 of 1989 where the testatrix herself had filed the Original Petition before this Court in respect of her husband's assets and the signature in the said petition clearly established the truth and genuineness of the Will in question in the present proceedings. He would further state that only when the suit came to be filed before the City Civil Court, the plaintiff came to know about the Will executed by the testatrix and knowledge about the Will before that cannot be imputed to the plaintiff. He would also contend the evidence of the Advocate, P.W.2 who https://www.mhc.tn.gov.in/judis 13/48 TOS.No.6 of 2012 has prepared the Will, evidence of the attesting witness, P.W.3, who attested the Will has went undemolished despite elaborate cross-examination. He would also state that D.W.1 himself admitted that P.W.2 handled the cases of the mother and therefore, it was only natural that P.W.2 was approached to draft the Will of the testatrix.
21.With regard to the non-production of the original Will, the learned counsel for the plaintiff would submit that all possible steps have been taken to procure the original Will of the testatrix and the plaintiff has left no stone unturned in this regard and therefore, no other remedy was open to be availed off than filing the certified copy of the photocopy of the Will that was produced by none else than the 1st defendant himself in a suit before the City Civil Court. He would lay stress on the order passed by this Court dated 05.03.2018 in Application Nos.3884 to 3886 of 2013 and state that the Will has to be held to be proved, entitling the plaintiff to grant of Letters of Administration.
22.With regard to delay, the learned counsel for the plaintiff would take me through the reasons assigned in paragraph No.9 of the Original https://www.mhc.tn.gov.in/judis 14/48 TOS.No.6 of 2012 Petition and state that knowledge about the existence of the Will being known to the plaintiff's father will not be a ground to automatically impute knowledge about the Will on the plaintiff. Further, he would contend that the plaintiff could not go against the father and approach the Court independently and therefore, only after the death of the plaintiff's father on 22.01.2007, the plaintiff being one of the legatees took steps. The learned counsel for the plaintiff also further contend that in a matter of this nature, being a continuous right, the cause of action was very much available to the petitioner on the date of filing of the Original Petition and the same was not barred under Section 137 of the Limitation Act. He would place reliance on the decision of the Division Bench of this Court in S.Vatsala Vs. K.S.Mohan and Others reported in (2016) 1 CTC 257 in support of his arguments.
23.Mr.K.V.Babu, learned counsel would also find fault with the conduct of the 1st defendant in not taking steps to compare the signatures available in the Will and in view of the specific plea of forgery and fraud taken by the 1st defendant in the written statement, the learned counsel would submit that the burden shifts to the 1st defendant who pleads forgery and fraud, once due execution of the Will is established by the propounder. The https://www.mhc.tn.gov.in/judis 15/48 TOS.No.6 of 2012 learned counsel for the plaintiff would submit that the Court is entitled to compare signatures and come to a conclusion to find out the truth and genuineness of the Will put forth by the propounder.
24.Mr.K.V.Babu, learned counsel for the plaintiff would conclude his submissions stating that the entire properties were not bequeathed to the propounder and several other beneficiaries have been mentioned in the Will including the 2nd defendant, Tirupathi Devasthanams. Therefore, there is absolutely no reason to disbelieve the Will and evidence adduced on the side of the plaintiff. He would therefore pray for the suit being decreed.
25.Per contra, Mrs.Chitra Sampath, learned Senior Counsel appearing for the 1st defendant would first and foremost contend that in order to seek grant of certified copy of the photocopy of the Will, the plaintiff had to first establish that the original Will had been lost irretrievably . She would contend that there is no evidence on the side of the plaintiff and despite examining five witnesses, the plaintiff has not been able to establish that the original Will has been lost. Therefore, she would contend that on this limited ground itself, the suit has to be dismissed.
26.The learned Senior Counsel would also take me through the https://www.mhc.tn.gov.in/judis 16/48 TOS.No.6 of 2012 various correspondence between the Advocate, who drafted the Will, P.W.2 and the defendant, the son of the testatrix. She would also refer to the inconsistencies in the evidence of P.W.2, the Advocate who drafted the Will and also the attesting witness who was examined to prove due execution and attestation of the Will. She would contend that the delay of 17 odd years was certainly fatal and the reasons given for not approaching the Court within three years has not been properly explained and furthermore, the alleged reasons given are totally not believable in order for the Court to accept the same and to proceed to grant Letters of Administration as prayed for in favour of the plaintiff.
27.The leaned Senior Counsel would point out to the proof affidavit of P.W.1 at paragraph No.12 and state that there is absolutely no satisfactory explanation for the delay and also regarding the custody of the original Will. She would also refer to the evidence of D.W.1 regarding the cordial relationship between the mother and the son and contend that there was absolutely no rhyme or reason for the mother to disinherit her only son, the 1st defendant and bequeath her properties to her sister's children. She would also invite my attention to the signature of the testatrix in the medical prescriptions written by her in the year 1994 and contend that the signature https://www.mhc.tn.gov.in/judis 17/48 TOS.No.6 of 2012 found in the Will was totally different from the said signature found in the medical prescriptions and therefore, it is a clear case of forgery, warranting dismissal of the suit.
28.In reply, Mr.K.V.Babu, learned counsel for the plaintiff would submit that a mere fact that the 1st defendant relied on the Will would imply that the 1st defendant himself admits the existence of the Will. Regarding disinheritance of natural heir, namely the 1st defendant, the learned counsel for the plaintiff would submit even though the 1st defendant was living in Chennai, he never chose to meet his mother and lived separately and the same has come out during cross-examination of D.W.1. He would further state that the execution of the Will has never been denied even by the 1st defendant and it is only the existence of the original which is an issue in the above proceedings and therefore, having satisfied the Court that the Will was duly executed and also attested, the plaintiff is certainly entitled to grant as prayed for.
29.Mr.Prahlad Bhatt, learned counsel for the 2nd defendant would support the arguments of Mr.K.V.Babu, learned counsel for the plaintiff. https://www.mhc.tn.gov.in/judis 18/48 TOS.No.6 of 2012
30.I have paid my careful and conscious consideration to the rival submissions advanced by the learned counsel for the plaintiff and the learned Senior Counsel appearing for the 1st defendant.
31.It is not in dispute that the testatrix was a Doctor by profession and the Will in Ex.P2 produced before the Court seeking grant of Letters of Administration is only a certified copy of a photocopy of the original Will said to have been executed by the testatrix. The said photocopy has been filed by the 1st defendant before the City Civil Court where he has stated that basing claim on the said alleged Will, the 1st defendant's possession was sought to be interfered with by the legatees under the said Will. The certified copy of the said photocopy of the Will marked as Ex.A2 before the City Civil Court in O.S.No.7861 of 1996 has been applied for and filed along with the Original Petition proceedings and during trial the said certified copy of the photocopy of the Will has been marked as Ex.P2 before this court.
32.In this connection, I find that the copy of the plaint in O.S.No.7861 of 1996 has not been exhibited by either of the parties. However, a copy of the judgment and decree in the said suit is available and the same has been https://www.mhc.tn.gov.in/judis 19/48 TOS.No.6 of 2012 marked as Ex.D7. On going through the same, I find that the 1st defendant never admitted to the truth and genuineness of the Ex.P2, Will in the said suit. He has only stated that claiming under the alleged Will, the plaintiff herein and others attempted to interfere with the peaceful possession and enjoyment of the 1st defendant's and in such circumstances, the suit came to be filed for grant of permanent injunction. Therefore, merely because the said copy of the Will was filed by the 1st defendant in the suit before the City Civil Court, it would not amount to admission of the truth and genuineness of the said Will by the 1st defendant.
33.The Original Petition has been filed under Sections 232 and 236 of the Indian Succession Act. Section 232 deals with general provisions, namely grant of administration to universal or a residuary legatees. There is a specific chapter under the Indian Succession Act., viz. Chapter II of Part IX which deals with limited grants and under the said Chapter, Section 237 deals with probate of copy or draft of lost Will. Section 239 deals with probate of a Will where original exists. Section 240 deals with administration until the Will is produced. It would have been appropriate for the plaintiff to have invoked Chapter II of Part IX instead of seeking Letters of Administration invoking Section 232 of the Indian Succession Act. https://www.mhc.tn.gov.in/judis 20/48 TOS.No.6 of 2012
34.However, mere mentioning of an incorrect provision, does not warrant dismissal of the Original Petition / suit, especially, since the plaintiff has attempted to lead evidence with regard to the existence of the original Will.
35.Be that as it may, the plaintiff is bound to first and foremost establish that the original Will existed/exists and that it has been lost irretrievably before she would become entitled to grant of Letters of Administration with a copy of the lost Will annexed.
36.In this context, the order of the This Court in A.Nos.3884,, 3885, 3886 of 2013 and 1299 of 2014 dated 05.03.2018 becomes absolutely relevant. In view of the importance and significance of the said order, I feel it appropriate to extract the relevant portions in entirety.
“11.This Court is a Court of Record and the records in O.P.No.599 of 1989 are always available. After recording of evidence in TOS.No.6 of 2012, at the time of arguments, the records in O.P.No.599 of 1989 may be called for depending on the evidence already let in the present testamentary and original suit. The said application may for the present, be kept pending and will https://www.mhc.tn.gov.in/judis 21/48 TOS.No.6 of 2012 be taken up at the time of arguments of TOS.No.6 of 201.
12.Mr.K.V.Babu stated that specific permission may be granted to mark the certified copy of the Will said to have been executed by Dr.C.Bagyalakshmi. A.No.3884 of 2013 has been allowed. But as already pointed out, explanation has to be tendered with respect to the fate of the primary document. The secondary document namely the certified copy, even if it is to be of a Will has to be necessarily proved and by mere marking, it cannot be taken on its face value and during arguments alone, the veracity of the said document can be adjudicated by the Court. Marking of the certified copy of the xerox copy of the Will would not imply, that it had been proved even if the attesting witnesses or any other witnesses speak in an affirmative manner with respect to the signatures in the said document. The genuinity of the Will will have to be determined only during the arguments which would be advanced on analysis of the evidence already recorded.”
37.The following points emerge from the order passed by this Court:
(i) The propounder has to offer explanation with regard to the fate of the primary document, namely the original Will;
(ii) The certified copy of the photocopy of the Will cannot be taken on face value and its veracity has to be adjudicated upon by this Court;
https://www.mhc.tn.gov.in/judis 22/48 TOS.No.6 of 2012
(iii) Mere marking of the certified copy of the photocopy of the Will would not imply that it has been proved even if the attesting witnesses or any other witnesses speak, in an affirmative manner, with respect to signatures in the said document;
(iv) The genuinity of the Will has to be determined only after the evidence is recorded and arguments are advanced.
38.Testing the pleadings and evidence of the parties, in the light of the order passed by this Court, let us examine whether the propounder has satisfied the fundamental requirements of Section 237 to 240 of the Indian Succession Act which are provisions dealing with grants limited in duration.
39.Section 237 of the Indian Succession Act enables the Court to grant probate of copy or even a draft of a Will, limited until the original or a properly authenticated copy is produced. When a Will has been lost or mislaid since the testator's death or has been destroyed by any wrong or accident, such wrong or accident not being an act of the testator and where a copy or draft of the Will has been preserved, a grant can be made. Section 237 of the Indian Succession Act therefore is clearly an exception to the general rule contained in Section 276 of the Indian Succession Act which https://www.mhc.tn.gov.in/judis 23/48 TOS.No.6 of 2012 requires the Will to be annexed to the petition for probate or grant of Letters of Administration.
40.The conditions that are to be satisfied when Section 237 of the Indian Succession Act is sought to be invoked are as follows:
(i) The Will must be lost or mislaid after the demise of the testator;
(ii) It must be proved the Will was destroyed by wrong or accident and that the same was not by the act of the testator.
Both the above conditions ought to be established and proved by the propounder alone.
41.Unless the Court is satisfied that the propounder has reasonably established the loss of the original Will and that the copy available is an authenticated copy of the said lost Will, by leading satisfactory evidence, the Court would not venture to grant probate or Letters of Administration.
42.In this connection, let us examine the evidence of the propounder with regard to the non production of the original Will dated 09.07.1995. At paragraph No.9 of the Original Petition, the plaintiff has stated that the delay has been occasioned only because of the proceedings initiated by the https://www.mhc.tn.gov.in/judis 24/48 TOS.No.6 of 2012 plaintiff' right from Application No.693 of 2009 for issuance of citation to the executors to produce the original Will. Despite the application being ordered, the executors had not produced the original Will and yet another Application in A.No.869 of 2009 was filed under Section 229 of the Indian Succession Act to direct the executors to renounce their executorship. Despite undertaking to apply for grant of probate, one of the executors to gave such undertaking never took any steps. Thereafter A.No.720 of 2010 was filed under Section 225 of the Indian Succession Act seeking a direction to the other legatees to express their willingness for obtaining probate or Letters of Administration and bear their proportionate costs. In A.No.721 of 2010, the executors were directed to produce and deposit the original Will in Court and despite the said application, the original Will never came to be filed before this Court. The evidence adduced by P.W.1 is also on the lines of the said pleadings available in paragraph Nos.6 to 9 of the O.P.No.913 of 2010.
43.The 1st defendant admittedly filed a suit in O.S.No.7861 of 1996 before the City Civil Court, Chennai, seeking permanent injunction. In the said suit, the plaintiff was very much a party defendant. In the said suit, the 1st defendant had categorically pleaded about the claim of the beneficiaries https://www.mhc.tn.gov.in/judis 25/48 TOS.No.6 of 2012 under the alleged Will and in fact had also filed a photocopy of the said Will as a document in the said suit which was also marked as Ex.A2 during trial. Therefore, the plaintiff had knowledge about the Will atleast after the 1st defendant had filed O.S.No.7861 of 1996. Though the argument of Mr.K.V.Babu on this score is that the daughter could not go against the father during his lifetime and had to keep quite and took steps only after the demise of her father, I find such arguments not only unsatisfactory but also totally against the pleading made in the above proceedings. It is not the case of the plaintiff in this case that she became aware of the Will even after filing of the suit in the year 1996 by the 1st defendant and though she was aware of the said Will she could take steps because her father was alive and that only after demise of her father, she started taking necessary steps to have the Original Petition filed for probate. Nothing prevented the plaintiff who was a party defendant in O.S.No.7861 of 1996 to have taken out all the applications that she took out only in the year 2009 and 2010, immediately on her coming to know about existence of the Will. The plaintiff has not taken any steps whatsoever even to trace the whereabouts of the original Will right from 1996 until 2009, when the application was taken out citing the executors as respondents. The Original Petition came to be filed only in the year 2010 nearly 14 long years, after the 1st defendant filed the suit https://www.mhc.tn.gov.in/judis 26/48 TOS.No.6 of 2012 clearly pleading about the Will under which the plaintiff and others were claiming rights and benefits. Therefore, the explanation offered by the plaintiff for the delay in not approaching this Court within a period of three years remains unexplained and is also wholly unsatisfactory.
44.Coming to the whereabouts of the original Will, as already indicated by this Court in a common order dated 05.03.2018, the onus is on the propounder to establish the factum of the loss of the original Will. I do not find any credible evidence on the side of the plaintiff in this regard. Though the plaintiff has examined the Advocate, who drafted the Will and also one of the executors as P.W.4, their evidence do not lend any credence whatsoever to the fact that the original Will was lost post the demise of the testatrix and that the original Will had not been destroyed or lost by an act of the testatrix herself which is one of the fundamental conditions mandated under Section 237 of the Indian Succession Act. Though Section 237 of the Indian Succession Act deals with probate, it would equally apply to grant of Letters of Administration, moreso, in the present case where admittedly executors were appointed under the alleged Will.
45.P.W.1, in her cross-examination, had admitted that she engaged https://www.mhc.tn.gov.in/judis 27/48 TOS.No.6 of 2012 separate Advocate to defend her case in O.S.No.7861 of 1996 and that her parents and brother were represented by P.W.2, Mr.Ashok Menon. She also admitted to have filed a written statement in the said suit which was marked as Ex.D4. To a question put to her that at the time of filing the proceedings in 2009 as to who informed that the executors had the custody of the original subject Will, she stated that she believed that the executors would be having the custody of the original Will. The Advocate who drafted the Will was examined as C.W.1. Though in his chief examination, he has stated that he personally knew the testatrix and he was advising her in some legal matters and that he drafted Ex.P2, Will, he has stated that he handed over the Will to the testatrix herself and that thereafter, the testatrix returned it to him in a sealed cover and told him to keep it with him and open it only after her lifetime with certain instructions regarding in whose presence C.W.1 should open the sealed cover. In chief examination, he has further stated that the sealed cover was opened by him on 02.03.1996 in the afternoon at the residence of Dr.C.Bagyalakshmi, the testatrix, in the presence of the 1st defendant, Cavala Parthasarathy Chetty and Dr.S.K.Khadri and Mr.Venkata Munuswami, brother-in-law of the testatrix. He has also stated that there may have been few others but he was not in a position to recollect the same. To a further question put to him in his chief examination as to whom he https://www.mhc.tn.gov.in/judis 28/48 TOS.No.6 of 2012 handed over the original Will, he stated that he handed over the original Will to Dr.C.Bagyalakshmi's brother-in-law, Mr.Venkata Munuswami.
46.However, in cross-examination, to a question put to him whether the executors approached the Court at any point of time after the death of the testatrix, who handed over the original Will to enable C.W.1 to apply for probate, he has answered in the negative.
47.P.W.3, one of the attesting witnesses who is the clerk of C.W.1, Advocate has been examined to prove due execution and attestation of the Will. He has stated that the Will was executed at No.228, N.S.C.Bose Road, Chennai-1, on 09.07.1995 which is the office of C.W.1, Advocate. He has further stated that at the time of execution of the Will, his senior, namely C.W.1 and the other attesting witnesses and himself alone were present.
48.However, in cross-examination, he has stated that when the Will was executed other juniors and clients were present in the office. He has further stated that the execution of the Will must have been on a working day. He has further stated that the office remains closed on Sundays. It is https://www.mhc.tn.gov.in/judis 29/48 TOS.No.6 of 2012 also stated that there are no cabins in the office and that he was sitting in the same hall as of Mr.Ashok Menon. To a specific question put to him as to whether the office of the Ashok Menon was closed even on Sunday in the year 1995 and 1996, he has answered “yes, remains closed”.
49.One of the executors, namely Mr.A.Sekar, Chartered Accountant was examined as P.W.4. In chief examination, he has stated that Ex.P17 which is the Original Petition said to have been filed by the witness, as executor, before the Court, was never filed by him at all. He has also stated that he does not know the advocates whose names were printed in Ex.P17. He further stated that he came to know about the Will only from the 1st defendant Mr.Jaichander, who had sent him a letter dated 14.05.1996.
50.In cross-examination, P.W.4/Chartered Accountant has stated that he is a partner of the firm, M/s.B.B.Naidu and Co., which handles the income tax filing of the plaintiff's brother as well as her father, Venkatamunusami Chettiar. He has further stated that in his firm was the auditors of the Venkatamunusami Chettiar, the father of the plaintiff, till his death in 2007. He has further stated that he was handling tax filings of the brother of the plaintiff who is also one of the beneficiaries under Ex.P2, https://www.mhc.tn.gov.in/judis 30/48 TOS.No.6 of 2012 Will. He has further stated that nobody spoke about the Will of the testatrix and for the first time he came to know about the Will only through Ex.P5, letter dated 14.05.1996 sent by the 1st defendant. P.W.4 has also denied that he signed in Ex.P9. He has categorically affirmed that Ex.P9 was not signed by him and he did not give any instructions to prepare the counter affidavit said to have been filed by P.W.4, A.Sekar in A.No.869 of 2009.
51.An Advocate, Mr.Dilip Mathew John has been examined as P.W.5 on subpoena. He has stated that he was attached to the office of C.W.1 between 2006 and 2015. In his chief examination, he has stated that the original Will mentioned in Ex.P20 which is a photocopy of the petition said to have been filed by the executor, A.Sekar was returned to A.Sekar along with the returned Original Petition papers. In his cross-examination, he has stated that originals of Ex.P17 and Ex.P20 were handed over to Mr.Ashok Menon for compliance by A.Sekar. To a specific question as to whether he was personally aware if the Original Petition was presented along with the alleged Will dated 09.07.1995, he has answered that he remembered that the original Will was taken to the Section along with the prepared Original Petition papers. To a further question as to whether he was personally aware as to whom the alleged Will was handed over, in his office, for being filed https://www.mhc.tn.gov.in/judis 31/48 TOS.No.6 of 2012 along with Ex.P17, he answer was a simple and emphatic “no”.
52.From the overall reading of the above evidence, it is really unclear as to what happened to the original Will. It remains a mystery. Though the advocate states that after execution it was given to the testatrix herself and in turn, the testatrix put the original Will in a sealed cover and handed it back to C.W.1 to be opened and read with certain standing instructions, subsequently, it is stated that one of the executors filed an Original Petition along with the original Will. However, it is clear from the web copy of SR.No.O.18777/2011, that the original Will was never produced along with the Original Petition and only a photocopy was filed.
53.The evidence of C.W.1 is also not inspiring. On one hand, he states that the sealed cover was opened only on 02.03.1996. However, the correspondence clearly points otherwise. C.W.1 himself, by letter dated 15.03.1996 in Ex.D15, has stated that though he has fixed the reading of the Will on 02.03.1996, at the last minute, he could not go ahead due to a personal problem and that he therefore informed the 1st defendant postponing the reading to 09.03.1996. Even on 09.03.1996, as seen from Ex.D15, the opening and reading of the Will could not taken place and C.W.1 has https://www.mhc.tn.gov.in/judis 32/48 TOS.No.6 of 2012 concluded Ex.D15, letter stating that he would open and read the Will on 30.03.1996 at 11.00 a.m. Therefore, the evidence of C.W.1 does not inspire any confidence in the Court. There is no consistent evidence also with regard to what happened to the original Will. As already indicated, the burden is on the propounder to establish that the Will had been lost and that the said loss was not on account of the testatrix. I find that the evidence is totally wanting in this regard and therefore, the plaintiff is clearly disentitled to the relief, even assuming the benefit of wrong quoting of a provision of law can be made available to the plaintiff.
54.Even with regard to execution of the Will, the chain of events and the evidence adduced by C.W.1 r/w the evidence of attesting witness, P.W.2 falls short of satisfactory evidence in support of due execution and attestation of the Will. Admittedly, the Will is said to have been executed on 09.05.1996 which happens to be a Sunday and there is no dispute about this fact. It is the specific evidence of the attesting witness that the Will was executed only on a working day and not on a Sunday. The evidence of P.W.2 is also very emphatic on the point that on no Sunday, the office has remained open. Further, he has stated that the Will was executed in the presence of other juniors and clients were present. Thus, it clearly points to the fact that https://www.mhc.tn.gov.in/judis 33/48 TOS.No.6 of 2012 P.W.2 has not spoken the truth. Execution of the Will which is a solemn document, events surrounding the same, would certainly remain in the memory of the attesting witnesses. Despite passage of time, if really the Will had been executed, as claimed, on 09.05.1996, being a Sunday, the Clerk of C.W.1 who has said to have attested the Will would have certainly and clearly remembered that it was a holiday and the office was specially opened for the purposes of execution of the Will by the testatrix. On the contrary, he has stated that the office was always closed even during Sundays in 1995 and 1996. He has further stated that other juniors and clients were present. If really the Will was executed as claimed on 09.05.1996. There would have been no occasion for the juniors and clients to be present around that time. Therefore, the evidence of P.W.2 lacks credence and cannot be believed.
55.In view of the above and taking note of the fact that there is no proper explanation for loss of the original Will and also coupled with the fact that the evidence of C.W.1 and P.W.2 do not go hand in hand in support of due execution and attestation of the Will, I am afraid that the propounder has miserably failed to dispel the suspicious circumstances that have been raised, surrounding due execution and attestation of the Will. https://www.mhc.tn.gov.in/judis 34/48 TOS.No.6 of 2012
56.Merely stating that the Will was executed in sound and disposing of mind, memory and understanding and in the presence of the attesting witnesses and that the attesting witnesses signed in the presence of the testatrix would not suffice and such evidence may be sufficient in cases where there is no serious challenge to the truth and genuineness of the Will. However, in a case of this nature where there is mystery surrounding even the whereabouts of the original Will, the evidence of the attesting witness and the Advocate who preferred the Will is to be examined with greater scrutiny. C.W.1 has admitted that he has been a lawyer for the brother-in-law of the testatrix who brought the testatrix to his office. He has stated he has handled cases for him and his family. In fact, even in the suit filed by the defendants in O.S.No.7861 of 1996 before the City Civil Court, the very same counsel has appeared for some defendants in the suit. There is nothing on record to show that all was not well between the plaintiff and her father, Venkatamunusami Chettiar. Therefore, the argument that plaintiff's hands were tied during the lifetime of her father and that only after the father's demise she was able to initiate steps is totally unjustified. In any event, as already discussed, nothing prevented the plaintiff or her father from taking appropriate steps to probate the Will even assuming they had no knowledge about the Will, until a copy of the same was filed by the 1st defendant https://www.mhc.tn.gov.in/judis 35/48 TOS.No.6 of 2012 himself in O.S.No.7861 of 1996.
57.Even coming to the evidence of the executor, A.Sekar, he has disowned the Original Petition said to have been filed by him before this Court. He has stated that he did not even know the lawyers who have appeared for him in the said proceedings.
58.One of the said lawyers has been examined as P.W.5 and Ex.P17/Ex.P20 is the copy of the petition for probate said to have been filed by P.W.4, A.Sekar in the said petition. It is stated that P.W.5 and one L.Gopi are the counsel for the petitioner, namely P.W.4. However, P.W.4 has disowned even knowing the said lawyers. In fact, while being cross- examining P.W.5, has stated that A.Sekar was a client of his senior and that in late 2010 and in 2011, he approached P.W.5 for probating the Will of late Dr.C.Bagyalakshmi. He has further stated that the Original Petition in Ex.P20 was prepared only on instructions of A.Sekar, P.W.4. However, to a later question, he has stated that he does not know about the case involving Mr.A.Sekar since it was handed by his senior, Ashok Menon, C.W.1 and he was only entrusted with the task of preparing the Original Petition in Ex.P20. He has further stated that when the Original Petition was returned by the https://www.mhc.tn.gov.in/judis 36/48 TOS.No.6 of 2012 Registry, the same was handed over only to Mr.Ashok Menon for compliance. Thus, it is clear that it was only C.W.1 who was in charge of the matter and not any of his office colleagues or juniors. Despite being examined as C.W.1, he has not been able to state with certainty as to what happened to the original Will of the Dr.C.Bagyalakshmi, especially, when his office is said to have filed an Original Petition for grant of probate through one of the executors. Moreover, there appears to be no conflict amongst the legatees and also the plaintiff and her father. The reason, not even pleaded, but merely argued that the daughter was helpless since the father was alive and did not take steps does not stand reason. The plaintiff was clearly aware of the existence of the Will even in the year 1996 as soon as the suit came to be filed in O.S.No.7861 of 1996.
59.In fact, though she filed a written statement denying knowledge whatsoever of the marking or non-marking of any Will by the deceased, Dr.C.Bagyalakshmi in October 1996, atleast by that point of time, she knew that the subject Will existed atleast. The plaintiff ought to have taken necessary steps to probate the said Will through the executors or such other modes to prove the truth and genuineness of the Will and made a claim over the subject properties.
https://www.mhc.tn.gov.in/judis 37/48 TOS.No.6 of 2012
60.P.W.5, one of the attesting witness has been examined and he is only a Clerk of C.W.1, the lawyer who prepared the Will. The evidence of C.W.1 as well as the attesting witness, P.W.2 do not satisfy the requirements under the law, especially when Letters of Administration is sought on a lost Will, the whereabouts of the original Will also not being satisfactorily explained or established. Even otherwise, I have compared the signature of the testatrix, Dr.C.Bagyalakshmi in O.P.No.599 of 1989 with the signatures available in the photocopy of the Will in Ex.P2. The signatures found in O.P.No.599 of 1989 appear to be more natural and flow continuously whereas it does not appear to be so in the photocopy of Ex.P2, Will. Further, the signature is also stretched and appears to be longer in Ex.P2, Will in O.P.No.599 of 1989. Also, I find that the signatures in Ex.P2, Will do not even look identical or similar to signatures found in the medical prescriptions written by the testatrix, Dr.C.Bagyalakshmi and signed by her.
61.All these also create a doubt in my mind with regard to the genuineness of the signatures in the photocopy of Ex.P2, Will. The difference in signature is not the only ground on which I am proceeding to dismiss the suit. As already indicated, the propounder has not satisfied the https://www.mhc.tn.gov.in/judis 38/48 TOS.No.6 of 2012 loss of the original Will. The whereabouts and the alleged loss of the Will and also failure to dispel material and suspicious circumstances surrounding due execution of the Will dated 09.05.1996, coupled with these , the discrepancies in the signature is also an added factor to disentitle the plaintiff to grant of Letters of Administration.
62.The learned counsel for the plaintiff relied on the following decisions:
“1.2009 SCC Online SC 653 (Krishnan Kumar Sharma Vs. Rajesh Kumar Sharma).
2.(2020) 16 SCC 209 (Dhanpat Vs. Sheo Ram).
3.MANU/TN/0039/2016 (S.Vatsala Vs. K.S.Mohan and Others). 4.2020 SCC Online Cal 2716 ( Pravin Kumar Kothari and Another Vs. V.Dipti Bavishi.
5.MANU/TN/2431/2021 (K.Natarajan Vs. K.Devaraj and Others). 6.2023 SCC Online Cal 618 (Sujata Dhar Vs. Ranjit Kumar Dhar and Others).”
63.In Krishnan Kumar Sharma's case, the Hon'ble Supreme Court held that Limitation Act is not applicable to probate proceedings.
64.In Dhanpat's case the Hon'ble Supreme Court held that when the https://www.mhc.tn.gov.in/judis 39/48 TOS.No.6 of 2012 original Will is lost, the certified copy of the Will can be produced to prove the Will.
65.In S.Vatsala's case the Division Bench of this Court held that there is no limitation for filing an application to Probate or Letters of Administration under the Original Side Rules of the Madras High Court.
66.In Pravin Kumar Kothari's case, the learned Single Judge of the Calcutta High Court held that when there are suspicious circumstances, the onus is on the propounder to explain such suspicious circumstance to the satisfaction of the Court before the Court accepts the Will as original. The learned Judge also dealt with probate of a lost Will.
67.In K.Natarajan' case, the learned Single Judge of this Court held that probate could be granted on a certified copy of the Will.
68.Lastly, in Sujata Dhar's case, the Division Bench of Calcutta High Court held that once the Will has been proved and when there is no evidence to suggest that the Will was result of fraud and the same was manufactured, then the Court can grant probate of a lost Will. https://www.mhc.tn.gov.in/judis 40/48 TOS.No.6 of 2012
69.Though there is no quarrel with regard to the propositions laid down in the above cases, I do not find them helpful or coming to the aid of the plaintiff in the present case. In all those cases where the original Will was lost, the Court was satisfied that the factum of loss of the original was satisfactorily explained and proved. Also in the case of Pravin Kumar Kothari, placing reliance on the Section 64 of the Indian Evidence Act, the Court held that he came to know about the loss of the original Will only after the testator died and the Court held that such part of his evidence stood the test of cross-examination and therefore held that the document in question could be admitted for probate subject to the other condition that valid execution of the Will being satisfied.
70.Even in K.Natarajan' case, this court was satisfied that the loss of the original Will had been satisfactorily explained by giving a police complaint and paper publication and also taking note of the fact that the Will was a registered Will, proceeded to hold that minor discrepancies in deposition cannot be a ground to disbelieve the evidence of the attesting witness. However, in the facts of the present case, the Will is an unregistered Will and Letters of Administration is sought for only on a certified copy, that https://www.mhc.tn.gov.in/judis 41/48 TOS.No.6 of 2012 too, of a photocopy of the alleged Will which was produced by the 1st defendant disowning its truth and genuineness even at the time of lodging the said document before the Court. Therefore, none of the above decisions would come to the aid of the plaintiff. For all the above reasons, the issues are answered against the plaintiff.
71.In fine, this Testamentary Original Suit is dismissed. However, there shall be no order as to costs.
14.06.2024 Index : Yes/No Speaking/Non-speaking order Neutral citation : Yes/No ata Witnesses examined on the side of the plaintiff:
P.W.1 - E.Rajalakshmi P.W.2 - Ashok Menon, Advocate P.W.3 – P.Murali P.W.4 – A.Sekar P.W.5 – Dilip Mathew John https://www.mhc.tn.gov.in/judis 42/48 TOS.No.6 of 2012 Exhibits produced on the side of the plaintiff:
S.No. Exhibits Description
1. P-1 Photocopy of the death certificate of Dr.(Mrs.)
C.Bagyalakshmi.
2. P-2 Certified copy of the photocopy of the Will
(unregistered) executed by the deceased
Mrs.Dr.C.Bagyalakshmi dated 09.07.1995.
3. P-3 Certified copy of the letter issued by the
Advocate Mr.Ashok Menon to Mr.Cavala
Parthasarathy Chettiar dated 01.02.1996.
4. P-4 Certified copy of the letter issued by Mr.Ashok
Menon to the 1st defendant dated 22.02.1996.
5. P-5 Certified copy of the letter issued by the 1st
defendant to Mr.A.Sekar and
Mr.K.Azhaguraman, Executors of the Will.
6. P-6 Certified copy of the order passed in Application
No.280 of 1986 along with Affidavit and petition
of Dr.(Mrs.) C.Bagyalakshmi dated 07.08.1986.
7. P-7 Certified copy of the order passed in Application
No.280 of 1986.
8 P-8 Certified copy of the order in Application
No.693 of 2009 dated 01.07.2009.
9. P-9 Certified copy of the counter affidavit filed by
Mr.A.Sekar dated 18.12.2009.
10. P-10 Office copy of the counter affidavit filed by
Mr.J.Venkatramana (4th respondent in OP) dated
17.09.2010.
11. P-11 Affidavit and judges summon in A.No.721 of
2010 dated January 2009.
12. P-12 Certified copy of the order passed in A.No.720 &
721 of 2010 dated 22.10.2010.
13. P-13 Letter/notice dated 28.07.2010 issued by the
https://www.mhc.tn.gov.in/judis
43/48
TOS.No.6 of 2012
plaintiff to 7th and 8th respondents.
14. P-14 Letter issued by the plaintiff dated 22.09.2010 to
the 7th and 8th respondents.
15. P-15 Letter dated 25.10.2010 issued by the plaintiff to
respondents 7 and 8 in O.P.
16. P-16 Letter issued by the plaintiff's lawyer to 7th and
8th respondents along with acknowledgement
card.
17. P-17 Photocopy of the petition filed in O.P.Diary
No.18777 of 2011 for the grant of probate by
Mr.A.Sekar.
18 P-18 Copy of the letter dated 13.05.2013 issued by the
plaintiff to the counsel for Mr.A.Sekar to
produce the copy of the petition along with
courier slip which was returned by the Registry.
19. P-19 Office copy of the affidavit dated 23.04.2014
issued by Mr.Ashok Menon.
20. P-20 Photocopy of the petition.
21. P-21 Photocopy of the letter dated 13.05.2013.
22. P-22 Photocopy of the Sale Deed dated 21.06.2008.
23. P-23 Photocopy of the said Partition Deed dated
09.05.2008.
24. P-24 Photocopy of the said Release Deed dated
28.05.2008.
25. P-25 Copy of the letter dated 11.09.1995.
Witnesses on the side of the defendants:
D.W.1 – C.Jaichander
Documents produced on the side of the defendants:
https://www.mhc.tn.gov.in/judis 44/48 TOS.No.6 of 2012 S.No. Exhibits Description
1. Ex.D1 Letter dated 17.04.2008.
2. Ex.D2 Letter dated 07.08.2008.
3. Ex.D3 Letter dated 14.03.2008.
4. Ex.D4 Written statement of 5th defendant.
5. Ex.D5 Plaint in O.S.No.2521 of 2008.
6. Ex.D6 Plaint in O.S.No.962 of 2008.
7. Ex.D7 Certified copy of the judgment and decree in OS.No.7861 of 1996.
8 Ex.D8 Certified copy of the judgment in RCA.Nos.302 & 336 of 1994.
9. Ex.D9 Decree in RCA No.302 of 1994.
10. Ex.D10 Decree in RCA No.336 of 1994.
11. Ex.D11 Judgment in CRP.NPD.No.10119 of 2006.
12. Ex.D12 Letter dated 07.02.1996 by defendants to P.W.2.
13. Ex.D13 Letter dated 02.03.1996 by P.W.2 to defendants.
14. Ex.D14 Letter dated 12.03.1996 with postal acknowledgment from defendants to P.W.2.
15. Ex.D15 Letter dated 15.03.1996 from P.W.2 to defendants.
16. Ex.D16 Letter dated 18.03.1996 from defendant to P.W.2 with postal acknowledgment card.
17. Ex.D17 Letter dated 28.03.1996 from P.W.2 to defendant.
18 Ex.D18 Telegram dated 29.03.1996 issued by P.W.2 to defendant.
19. Ex.D19 Letter dated 03.04.1996 with postal acknowledgment by defendant to P.W.2.
20. Ex.D20 Letter dated 08.04.1996 by P.W.2 to defendant.
21. Ex.D21 Letter dated 08.04.1996 by defendants to P.W.2 with postal acknowledgment card.
22. Ex.D22 Letter dated 11.04.1996 by defendant to P.W.2 https://www.mhc.tn.gov.in/judis 45/48 TOS.No.6 of 2012 S.No. Exhibits Description with postal acknowledgment card.
23. Ex.D23 Letter dated 11.04.1996 by defendant to P.W.2 with postal acknowledgment card.
24. Ex.D24 Letter dated 22.04.1996 by defendant to P.W.2.
25. Ex.D25 Letter dated 25.04.1996 by defendant to P.W.2 with postal acknowledgment card.
26. Ex.D26 Letter dated 03.05.1996 by P.W.2 to defendant.
27. Ex.D27 Letter dated 02.08.2006 from State Bank of India to M/s.Menon and Goklaney Associates.
28. Ex.D28 Legal notice dated 08.07.1999 issued by P.W.2 on behalf of defendant.
29. Ex.D29 Reply dated 13.07.1999.
30. Ex.D30 Letter dated 04.09.1999.
31. Ex.D31 Memo dated 27.01.2014.
32. Ex.D32 Affidavit of Ashok Menon in A.No.3884 of 2013 in TOS.No.6 of 2012.
33. Ex.D33 Order in CMP Nos.10118 & 10119 of 2006 in CRP.NPD.No.904 of 2003 dated 18.12.2006.
34. Ex.D34 Affidavit of Mr.A.Sekar filed in A.No.3885 of 2013 in TOS.No.6 of 2012.
35. Ex.D35 Affidavit and judges summon in A.Nos.7877 & 1299 of 2014 in TOS.No.6 of 2012.
36. Ex.D36 Letter dated 01.07.1995.
37. Ex.D37 Telegram sent by Late Dr.C.Bagyalakshmi dated 25.03.1995.
38. Ex.D38 Medical Certificate issued by Dr.C.Bagyalakshmi dated 11.09.1994.
14.06.2024 https://www.mhc.tn.gov.in/judis 46/48 TOS.No.6 of 2012 P.B.BALAJI,J.
ata https://www.mhc.tn.gov.in/judis 47/48 TOS.No.6 of 2012 Pre-delivery judgment made in TOS.No.6 of 2012 14.06.2024 https://www.mhc.tn.gov.in/judis 48/48