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2007 Supreme(Mad) 844
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE A.C. ARUMUGAPERUMAL ADITYAN
Lalithammal
Versus
T. Mohan Das
Second Appeal No.832 of 1997
Decided On : 08-03-2007
For the Appellant :K. Raman Raj, Advocate. For the Respondent:
C.R. Dhasarathan, Advocate.
Probate is not mandatory for a Will under Section 213 of the Indian Succession Act if it was not executed in a metropolitan city.
Headnote:
Will - Property Dispute - Indian Succession Act, 1925, Section 57, 369, 213; Evidence Act, Section 68
Fact of the Case:
The plaintiff, a relative of the deceased, filed a suit to restrain the defendant, the deceased's second wife, from alienating properties as per a disputed Will. The trial court decreed the suit, which was upheld in appeal. The defendant appealed again, raising the issue of the genuineness and due execution of the Will.
Finding of the Court:
The court found that the plaintiff had proved the Will and that the properties were self-acquired by the deceased. The court also held that probate was not mandatory for the Will under Section 213 of the Indian Succession Act, as it was not executed in a metropolitan city.
Issues: The main issue was the validity of the Will under Sections 57, 369 of the Indian Succession Act and Section 68 of the Evidence Act.
Ratio Decidendi: The court emphasized that the plaintiff had fulfilled the mandatory requirement to prove the Will by examining an attesting witness. It also clarified that probate was not mandatory for the Will under Section 213 of the Indian Succession Act.
Final Decision: The appeal was dismissed, confirming the decree and judgment of the lower courts.
This appeal has been preferred against the Judgment and decree in A.S.No.150 of 1994 on the file of the Court of III Additional District Judge, Salem. The defendant, who has lost her defence before the Courts below, is the appellant herein.
2. The short facts of the plaint for the purpose of deciding this appeal sans irrelevant particulars are as follows:
The defendant Lalithammal is the second wife of late Dr. K.Govindarajulu, whose youngest sisters third son is the plaintiff. The plaintiff was very much attached to the said Dr. K.Govindarajulu and was very helpful to him more like his son. The defendant had no issues male or female. She was very quarrelsome and showed scant respect to her husband during his life time. Dr. K.Govindarajulu had inherited properties from his father and he also acquired properties in his name from his self earnings in his profession. Dr. K.Govindarajulu died on 112. 1976 and his obsequies were performed by the plaintiff. Dr. K.Govindarajulu had executed a Will dated 12. 1972 and deposited with the Registrar of Assurances, Salem. In the said Will, the testator had given life estate to his second wife ,the defendant herein over all the properties.
2a) On 11. 1977, the Will was opened after the removal of the seal and registered as document No.8 of 1977. The Will was executed by the testator while he was in a sound state of health and mind and attested by five respectable witnesses comprising of a Doctor, police and Retired Head Constable and Officers in Government Services. In the said Will life interest was given to the defendant in respect of door Nos.14 and 15 Bretts Road, Salem. She should maintain the building in a good condition. After her death, the plaintiff and his heirs and successors in title shall be the sole and absolute owners of the said property included as Schedule "B" property of the said Will. The plaintiff came to know that the defendant was arranging to sell the suit property. Hence, the plaintiff issued a lawyers notice on 22. 1987 calling upon the defendant not to alienate the suit property contrary to the terms of the said Will. The plaintiff has also published a notice in the Tamil Daily of Salem Edition dated 3. 1987. The defendant has issued a reply notice in one issue of Thinathanthi dated 3. 1987 containing false and reckless statements. Hence the plaintiff has come forward with the suit for permanent injunction restraining the defendant in any manner of alienating or encumbering the suit property scheduled to the plaint.
3. The defendant in her written statement would contend that during the life time of her husband, the plaintiffs mother wanted to interfere with them and always she was instrumental for the quarrel with her husband. Only due to her inducement and during the unsound mind of her brother, she got the alleged Will executed for her groups favour without the knowledge and consent of the defendant while he was of unsound mind. The husband of the defendant had lost the mental balance previously on two occasions and had treatment both at Madras and Bangalore. Subsequently, he celebrated his Sashtiyapthapoorthi on 23. 1971. After few months, he was not keeping good mental stability. The plaintiffs mother who is the sister of the deceased Dr. K.Govindarajulu used to come often and met him. The brother of the plaintiff viz., Jagadeesan, used to supply liquors to Dr.K.Govindarajulu. It seems that the plaintiff and his mother and brother had managed to get some document ie., Will from him when he was not in a sound disposing state of mind. Dr. K.Govindarajulu acquired properties in his name from his self earnings in his profession is wrong. The husband of the defendant inherited only his residential house at 57, Kurumbar Street, Salem -1. Other properties were purchased from the funds of the defendant but sale deed and mortgage deed were taken on her husbands name as he was the male member of the family.
3a) It is false that obsequies were performed by th
