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2018 Supreme(Mad) 1765
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. SATHISH KUMAR, J.
K.R. Subramanian - Appellant
Versus
C.R. Susila - Respondent
O.P. No. 423 of 2015
Decided On : 16-07-2018
For the Petitioner:S. Subbiah, Senior Counsel for M/s. Balakrishnan Srinivasan, P. Raja, Advocates.
For the Respondents:Dr. A.E. Chelliah, Senior Counsel for C. Saifullah, Advocate.
Headnote:
Indian Contract Act, 1872 - Section 12 - Properties - Unregistered Will - Filed to grant Letters of Administration -Petition has been filed to grant Letters of Administration on basis of unregistered Will executed by bequeathing properties in favour of petitioner - It is case of petitioner that testatrix is absolute owner of the property - Her husband one predeceased her - Said executed Will on bequeathing her entire properties to petitioner - Even at time of purchase of the property in name he was cited as one of witnesses - This fact clearly shows that petitioner was all along considered as one of the family member and her husband - Respondent is only sister - There was no love and affection of sister as she is residing in Coimbatore - Petitioner was married, he was residing separately in the suit property, which is subject matter of Will - Even during life time and her husband petitioner was treated as their son - After death, last rites were performed by the petitione - After death of her husband, he has also taken care in all aspects including her health and treated her diabetes – Held, His evidence also clearly shows that even many years before the Will came into existence, she was not well, therefore, Power of Attorney was obtained in name of petitioner - P.W.2 is Stamp Vendor as per his own admission - Preparation of the Will at instruction of P.W.1 cannot be ruled out - Admittedly, testatrix suffering from serious ailments and she was also subjected to surgery, removed one of her limb, as per admission of P.W.2 prior to execution of Will. That being position, signing of document even without any shake in signature as a normal person would also give an inference that Will is not true and valid and prepared only with help of P.W.2 who just obtained a decree in law and his main avocation was stamp vendor - One of attesting witnesses is none other than brother of petitioner - Court sitting in arm chair of the testatrix after carefully analysing entire facts particularly serious ailments suffered by testatrix, in the manner in which the Will came to be executed is not convinced itself about the genuineness of Will - As suspicious circumstances are attached with Will, petitioner is not entitled for grant of Letters of Administration - In result original petition is dismissed.
1. The petition has been filed to grant Letters of Administration on the basis of the unregistered Will executed by Tmt.K. Vijayalakshmi bequeathing the properties in favour of the petitioner. It is the case of the petitioner that the testatrix Tmt.K. VijayalAkshmi is the absolute owner of the property. Her husband one Mr.C. Kathirvel predeceased her on 07.09.2011. The said Tmt.K.Vijayalakshmi executed the Will on 22.06.2013 bequeathing her entire properties to the petitioner. The respondent is the only sister of said Tmt.K.Vijayalakshmi. Though she has not filed any caveat and written statement, she cross examined P.W.1 and P.W.2 extensively. On the side of the petitioner P.W.1 and P.W.2 were examined and Ex.P1 to Ex.P.7 marked. On the side of the respondent though no witness was examined Ex.R1 to R14 were exhibited through the cross examination of P.Ws.
2. It is the contention of the learned Senior Counsel appearing for the petitioner that though the petitioner is stranger to the family of Tmt.K. Vijayalakshmi and her husband Mr.C.Kadirvel, he has been closely acquainted with them from the year 1960. Therefore he was all along treated as son of Tmt.K.Vijayalakshmi and her husband Mr.C.Kathirvel. Even at the time of purchase of the property in the name of Mr.C.Kathirvel, he was cited as one of the witnesses. This fact clearly shows that the petitioner was all along considered as one of the family member of Tmt.K.Vijayalakshmi and her husband Mr.C.Kathirvel. The respondent is the only sister of Tmt.K.Vijayalakshmi. There was no love and affection of the sister as she is residing in Coimbatore. The petitioner was very closely associated with Tmt.K.Vijayalakshmi and her husband Mr.C.Kathirvel and he was responsible for construction of their house. Even in the year 1984 an exclusive portion was constructed for the use of the petitioner and the petitioner was residing in the same property. Though the petitioner was married, he was residing separately in the suit property, which is the subject matter of the Will. Even during the life time of Tmt.K.Vijayalakshmi and her husband Mr.C.Kathirvel the petitioner was treated as their son. After the death Mr.C. Kathirvel, last rites were performed by the petitioner. After the death of her husband, he has also taken care of Tmt.K.Vijayalakshmi in all aspects including her health and treated her diabetes.
3. Taking into consideration of the love and affection shown by the petitioner, the deceased Tmt.K.Vijayalakshmi not only in respect of her own property but also the properties inherited from her husband, bequeathed the same to petitioner by a Will Ex.P.2 dated 22.06.2013 while she was in sound state of mind. After the execution of the Will merely because she has suffered some ailments and her toe and left leg were amputated cannot be a ground to suspect the Will. P.W.2, one of the attesting witnesses also clearly spoken about the Will. It is the further contention of the learned Senior Counsel that in the cross examination, the relationship of the petitioner with the Testatrix was not denied. Hence, the learned Senior Counsel submitted that merely because the petitioner is not related to the Testatrix and her husband, that cannot be the ground to disbelieve the Will, which is otherwise proved in the manner known to law. Hence, he prayed for grant of Letters of Administration in favour of the petitioner.
4. The learned Senior Counsel appearing for the respondent submitted that the petitioner is stranger to the family. No pleadings were made in the petition with regard to his acquittance with the testatrix and her husband. Whereas only for the first time in the chief examination, he pleaded such things that cannot be given importance. It is the further contention of the learned Senior Counsel that from the year 1991 onwards the petitioner schemed conspiracy to acquire valuable properties of the Testatrix and her husband who had no issue and proclaimed himself as son of the Testatrix a
