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2018 Supreme(Mad) 978
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. SATHISH KUMAR, J.
Kasi (died) & Others – Plaintiffs
Versus
Selvi & Others – Defendants
Testamentary Original Suit No. 21 of 2001
Decided On : 12-04-2018
For the Plaintiff :Chitra Sampath, Senior Counsel for P.V. Rajeswari, Advocate.
For the Defendant :P.K. Sabapathy, Advocate.
Headnote:
Indian Succession Act – Section 63 – Indian Registration Act – Section 32 and 40 – Will – Original Petition has been originally filed for grant of Letters of Administration based on the Will executed by one Mr.Thangavel Naicker and his wife Mrs.Pommi Ammal, thereafter, converted as a suit in view of the contest by the defendants. – Held, It is the contention of the learned counsel for the defendants that admittedly Mrs.Pommi Ammal alone the owner of the property. – Therefore, joint execution of the Will is not valid in law. Even assuming that Tmt. Pommi Ammal alone having right to execute the Will, Mr. Thangavelu Naicker, who is husband of Tmt.Pommi Ammal joined as one of the executants in the Will, in view of this Court, the same will not affect the validity of the Will. – It is the contention of the learned counsel for the defendants that the Will has to be presented before the Registrar only by the testator as per Section 32 and 40 of the Indian Registration Act. – Whereas only her husband presented the Will before the Registrar Office. – Therefore, he has argued that this is also one of the suspicious circumstances. – It is to be noted that Section 40 of the Indian Registration Act clearly shows that only testator or after his death any person claiming as executor or otherwise under a Will, may present it to any Registrar or Sub-Registrar for registration. – Admittedly in this case, Mr. Thangavel Naicker also joined as one of the testators along with his wife, has presented the Will for registration. – Therefore, merely because Mr. Thangavelu Naicker has no title, at the relevant time but the fact remains that Testatrix also present at the time of presentation of Will by her husband. – Such presentation, in any way, will not invalidate the Will. – Order Accordingly
1. The Original Petition has been originally filed for grant of Letters of Administration based on the Will dated 07.10.1974 executed by one Mr.Thangavel Naicker and his wife Mrs.Pommi Ammal, thereafter, converted as a suit in view of the contest by the defendants.
2. The brief facts leading to filing of this suit are as follows:
2.(a) Plaintiffs 1 and 2 are originally sons of one Mr.Krishnan. The said Krishnan is the son of Testator/Testatrix viz., Mr.Thangavelu Naicker and Mrs. Pommi Ammal. 1st Plaintiff died during the pendency of the suit. His legal heirs were brought on record as Plaintiffs 3 to 6. The executants viz., Mr.Thangavelu Naicker and Mrs. Pommi Ammal, grandparents of Plaintiffs 1 and 2, have jointly executed a Will dated 07.10.1974 bequeathing the suit property in favour of Plaintiffs 1 and 2 to have and hold the same till their life time and thereafter the children of two plaintiffs shall succeed to the property absolutely with all powers of alienation. The plaintiffs and beneficiaries were minors at the time of execution of the Will. One of the testators Mr. Thangavelu Naicker died on 17.01.1977 and Mrs. Pommi Ammal died on 15.01.1997. Hence the plaintiffs have filed a petition for grant of Letters of Administration.
2.(b) The 1st defendant is the daughter of Mr.Krishnan and the defendants 2 to 7 are the sons and daughters of the one Mrs. Rani. The 1st defendant has filed written statement and the other defendants are also adopting the written statement of the 1st defendant by Memo dated 20.08.2001.
2. (c) It is the case of the 1st defendant that the suit property was allotted to his grandmother Mrs. Pommi Ammal by the Slum Clearance Board and the sale deed was executed on 16.09.1974. Therefore, the alleged Will dated 07.10.1974 is forged one. Mrs. Pommi Ammal being the absolute and sole owner of the property, the Will alleged to have been executed by her husband and herself is not valid. Mrs.Pommi Ammal during her life time has never executed any Will. The alleged Will is specifically denied and the same is forged and concocted document.
2.(d) It is the case of the 1st defendant that both Mr.Thangavelu Naicker and Mrs.Pommi Ammal were under the care and custody of the defendants. Their only son Krishnan died in the year 1969. His wife Smt. Chandra, mother of the plaintiffs 1 and 2 left to her parents place immediately after the death of her husband and severed her relationship with the testator and testatrix. There is no contact between the mother of the plaintiffs and Mrs. Pommi Ammal. The plaintiffs and Mrs.Pommi Ammal were in inimical terms. There is no possibility for executing the Will by Mr. Thangavelu Naicker and Mrs.Pommi Ammal in favour of the plaintiffs.
2. (e) It is the contention of the 1st defendant that ever since the date of purchase of the property, the defendants in their capacity as grand children of Mrs. Pommi Ammal were in absolute possession and enjoyment of the property. Property tax was also assessed in the name of 1st defendant. Electricity Card, Water and Sewerage connection were also in the name of the 1st defendant. It is also submitted that Mrs. Pommi Ammal is an illiterate person and she is incapable of reading and writing. Hence the suit may be dismissed.
3. Based on the above, the following issues are framed for consideration:
1. Whether the Will dated 07.10.1974 alleged to have been executed by Mr. Thangavelu Naicker and Mrs. Pommi Ammal is true, valid and binding on the parties?
2. Whether the petitioners are entitled for issuance of Letters of Administration as asked for?
3. To what other reliefs the parties are entitled to?
4. On the side of the plaintiff P.W.1 Mr.Kasi and P.W.2 Mr. Mani were examined and Exs.P.1 to P.8 marked. On the side of the defendants 2nd defendant Mr.S. Dhanasekaran examined himself as D.W.1 and Exs.D.1 to D.12 were marked.
5. Exhibits produced o
