Indian Kanoon - Search engine for Indian Law

6. The sum and substance of all the three Original Petitions is that the the petitioner/plaintiff in TOS No.10 of 2016, by name M.Ramadoss, is the son of Mariammal and Madurai Muthu; the first respondent in the OP, one by name Mr.M.Madhavan is the another son of the said Mariammal and Madurai Muthu; the plaintiff in TOS No.11 of 2016 is the grandson through Mr.M.Ramadoss and the plaintiff in TOS No.12 of 2016, is the granddaughter through Mr.M.Ramadoss.

23. I have heard Mr.G.Surya Narayanan, learned counsel for the plaintiff in all the three TOS and Mr.K.V.Babu, learned counsel for Mrs.K.Sumathi, the learned counsel for the first defendant in all the three Testamentary Original Suits.

https://www.mhc.tn.gov.in/judis  TOS. No.10 to 12 of 2016

24.Mr.G.Surya Narayanan, learned counsel for the plaintiff in all the suits would submit that the Wills are handwritten by the father and they being joint Wills of the father and mother, the plaintiffs in their respective TOS being beneficiaries under the respective Wills, are entitled to the grant as prayed for. He would take me through the evidence of D.W.1 to show that D.W.1 has admitted the signature / Left Thump Impression of their parents and also with regard to the pleadings in the written statement, as regards, the admission regarding joint Wills executed between the father and mother of the parties. He would also state that though the plea of coercion has been taken in the written statement, excepting the evidence of P.W.1, there is no independent evidence to establish the plea taken in the written statement and therefore, he would contend that the plaintiff, having examined the attesting witnesses to both the Wills, is entitled to grant as prayed for.

31.Per contra, Mr.K.V.Babu, learned counsel appearing for the 1st defendant in all the TOS proceedings and plaintiff in the partition suit would submit that the notices issued by the plaintiffs were only in respect of the subsequent Will by the father and not the joint Wills executed by the father and the mother. He would take me through the evidences of the attesting witnesses regarding the inconsistencies in their evidence, with regard to time of execution of the Will. He would also refer to Ex.P12, police complaint (TOS.No.10 of 2016). He would contend that all was not well in the family and in the light of such conduct of the parents, it was highly impossible for the mother to execute a Will in favour of her son and grandchildren through https://www.mhc.tn.gov.in/judis  TOS. No.10 to 12 of 2016 the said son.

50.Testing the evidence of the propounder and the attesting witnesses in the light of Section 63(c) of the Indian Succession Act, I find that in the chief examination of the attesting witness, P.W.2, he has not clearly mentioned as to who signed the Wills first. He has merely stated that he was present along with the other attesting witness and that they saw the https://www.mhc.tn.gov.in/judis  TOS. No.10 to 12 of 2016 deceased, Madurai Muthu sign in English and Mariammal affixing her LTI in the Wills. However, P.W.1, in answering to a question in question No.102 in TOS.No.10 of 2016, has stated that after the father read the Wills to the witnesses, the mother affixed her LTI first and thereafter, the father affixed his signature and then, the attesting witnesses signed. In TOS.Nos.11 and 12 of 2016, there is no such averment or evidence regarding who signed the Wills first, either by P.W.1 or P.W.2. It is crystal clear, on perusal of the Wills in Ex.P1 (TOS.No.10 of 2016) that the father has signed first and only below his signature, the mother's LTI is found. In TOS.No.11 of 2016 also P.W.1 stated that after his father read the Will to the witnesses, his mother signed and then, the witnesses signed. In fact, he does not even speak about the father signing the Will after reading it. However, in TOS.No.12 of 2016, he gives a general answer that his parents signed. He has generally stated in TOS.12 of 2016 his parents affixed their signatures after the witnesses came. It is also quite strange that P.W.2 claims that he did not even ask the reason as to why he has been summoned to the house of P.W.1 and came to his knowledge only after reaching the house that P.W.1 has apparently called him to attest the Wills. Then, there is absolutely no credible evidence adduced by the attesting witness, regarding due execution of the three Wills, https://www.mhc.tn.gov.in/judis  TOS. No.10 to 12 of 2016 especially they being executed by two persons and by no stretch of imagination, the requirement of Section 63(c) of the Indian Succession Act stands satisfied.