Delayed proceedings for probate will not militate against genuineness of Will.

(Appeals filed under Order 36 Rule 1 of O.S. Rules against the judgment and decree of the learned single Judge dated 29.1.2001 in C.S.No.1 779 of 1993 and TOS No.34 of 1999)

Common Judgment:

These two appeals have been filed against the common judgment passed by the learned single Judge dated 29.1.2001 in C.S.No.1779 of 1993, hereinafter referred to as ‘C.S.’ and T.O.S.No.34 of 1999, hereinafter referred to as ‘T.O.S.’.

2. C.S.No.1779 of 1993 has been filed by three daughters of late Govindasamy Naidu claiming partition in respect of the property of Govindasamy Naidu, in whose name admittedly the property stood. Defendant No.1 and late G. Madhavan were two sons of late Govindasamy Naidu. The legal heirs of G. Madhavan were impleaded as Defendants 2 to 5. According to the plaintiffs’ case, their mother Mrs.G. Abranji Ammal, wife of Govindasamy Naidu, died intestate on 10.5.1982 and subsequently their father Govindasamy Naidu died on 15.3.1984. It has been stated in the suit for partition that the late parents of the plaintiffs had not executed any Will out of their own free will and volition and the first defendant in connivance with his brother late G. Madhavan procured a Will with a view to deprive the plaintiffs#18; share in the disputed property. On the basis of such assertion, the plaintiffs claimed 1/5th share each and also mesne profits and other ancillary reliefs.

3. Defendants in their joint written statement filed in the month of August, 1996, while not disputing the fact that the property was that of Govindasamy Naidu and regarding the dates of death, took the plea that Govindasamy Naidu and his wife Abranji Ammal had jointly executed a registered Will dated 27.1.1982 whereunder the suit property had been bequeathed in favour of the first defendant and Madhavan, the other son. It was stated that the Will had been voluntarily executed. It was also disclosed that the first defendant had an accident, wherein one of his hands had been amputated and the brother Madhavan was not earning well and the plaintiffs were given in marriage and were in affluent circumstances and keeping in view all these, the parents had executed the Will in favour of two sons.

4. Before filing such written statement, the defendants in the suit for partition filed had filed a petition in February, 1996 for grant of probate in respect of the registered Will, which has been subsequently numbered as T.O.S.No.34 of 1999.

5. Plaintiff No.1 in the partition suit who was arrayed as Respondent No.1 in T.O.S.No.34 of 1999, filed a written statement challenging the validity of the alleged will. It has been stated in her written statement that the application for probate had been filed belatedly. It was further stated as hereunder:-

The Testator as well as the Testatrix were not in sound disposing state of mind in January, 1982 and the brothers of the defendants have taken them to the Sub Registrar Office and got the Will executed and the parents have executed the Will not knowing the contents of the Will. The parents were not keeping good health. The defendants upon enquiry had learnt that the Testatrix was physically carried to the Sub Registrar Office by one Kumar Nair who had witnessed the sale deed dated 20.8.1962 and the Testatrix was not in a sound and disposing state of mind. In the Will itself there is no mention about the existence of any defendant and that there were many suspicious circumstances.

6. Both the matters were heard together and taken up for disposal by the learned single Judge. Learned single Judge disbelieved the genuineness of the Will and decreed the suit for partition. The son and the legal representatives of the late son of the original owner have filed these appeals against such common decision.

7. The result in both the appeals obviously depends upon the genuineness of the Will. If the Will is found to be genuine, the suit for partition filed by the daughters is bound to fail. On the other hand, if the Will is found t