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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. Pongiappan, J.
C. Thiyagarajan – Petitioner
Versus
P. Siva and ors. – Respondents
TOS No.10 of 2013 & 64 of 2016
Decided On : 29-04-2021
Evidence Act - Sections 68 and 63(c) - Document is required by law to be attested - Will shall be attested by two or more witnesses - Whether the Will executed by Kannammal, dated 23.02. is genuine - Whether testator is in sound dispose of mind at the time of execution of the Will - Whether defendants are estopped from taking plea that registered Will - Whether the defendants are legally entitled to maintain the above T.O.S. after they lost in the partition suit in O.S.No. against their brother Siva - To what other reliefs, the parties are entitled to - Whether the registered Will executed by C.Kannammal is genuine or not - Whether Testator executed the Will while in sound state of mind- Whether Will has been properly attested in accordance with law - Whether evidence given by attestors in respect to the execution of Wills, is surrounded by suspicious circumstances or not - petitioner/plaintiff in the Testamentary Original Suit, has initially filed two Original Petitions with regard to two Wills executed by his mother late in respect of two different properties viz.,for grant of probate of Will and O.P.Nos. for grant of probate of the Will dated 15.07.1994. Court granted an order of probate in favour of the plaintiff. Later, due to the intervention of the respondents/defendants, the probate order was revoked vide order and Original Petitions were converted into Testamentary Original Suits. Thereafter, vide order of 2017, joint trial of both the T.O.S. was ordered - petitioner C.Thiyagarajan S/o. Late Chellappa Naicker was residing at No.18, Appasamy Garden, 4th Street, Old Washermenpet, Chennai – 21. The 1st respondent Shiva, 2nd respondent R.Nithya and 3rd 4th respondents/defendants 1 and 2 are also the residents of Chennai testatrix died - witnesses should be in a position to prove the execution of Will. the present case, the attesting witnesses have stated that by the time they came, the document was already prepared and testatrix merely signed the document in their presence. It was therefore necessary for the Propounder of the Will to prove that the Will had been executed by the testatrix after understanding the contents thereof. This could have been done by proving that the document had been prepared as per instructions of the testatrix or that the testatrix herself gone through the document or that it had been read over and explained to her or even by other surrounding and circumstantial evidence like the testatrix acknowledging that the Will had been prepared according to her instructions or even by the fact execution of the Will had been admitted before the statutory authority such as the Sub-Registrar - plaintiff had taken a stand that being the reason that defendants had taken a plea that the Wills pertaining to this case have been obtained fraudulently - Testamentary Original Suits, are dismissed - Ordered Accordingly
JUDGMENT :
The petitioner/plaintiff in both the Testamentary Original Suit, has initially filed two Original Petitions with regard to two Wills executed by his mother late C.Kannammal in respect of two different properties viz., O.P.Nos.920 of 2005 for grant of probate of the Will dated 23.02.2000 and O.P.Nos.723 of 2005 for grant of probate of the Will dated 15.07.1994. Thereafter, on 27.03.2006 and 24.01.2016, this Court granted an order of probate in favour of the plaintiff. Later, due to the intervention of the respondents/defendants, the probate order was revoked vide order dated 13.09.2012 and 05.07.2016, and ultimately, the Original Petitions were converted into Testamentary Original Suits. Thereafter, vide order dated 03.07.2017 in A.No.2038 of 2017, joint trial of both the T.O.S. was ordered. Therefore, both the Testamentary Original Suits are taken up together and disposed of by this common judgment.
2. Case of the petitioner/plaintiff in TOS No.10 of 2013:
(ii) The amount of assets which are likely to come into the petitioner's hand does not exceed in the aggregate the sum of Rs.2,00,000/- and the net amount of the said assets, after deducting all items which the petitioner is by law allowed to deduct is only of the value of Rs.1,98,000/-.
(iii) The petitioner has impleaded all the next of kin or other persons interested as party/respondents. No application has been made to any District Court or delegates or to any other High Court for probate of any Will of the said deceased or letters of administration with or without the Will annexed of her property and credits.
(iv) The petitioner hereby undertake to duly administer the property and credits of the said C.Kannammal and in any way concerning her Will by paying first her debts and then the legacies therein bequeathed so far as the assets will extend and to make a full and true inventory thereof and exhibit the same in this Court within six months from the date of grant of probate to the petitioner and also to render to this Court a true account of the said property and credits within one year from the said date.
(v) At the time of her death, the deceased C.Kannammal, had left her behind the petitioner and the respondents herein as her surviving legal heirs. The husband of the deceased had predeceased her. One son by name Palani predeceased her leaving the 1st respondent as his legal heir. One daughter by name Chandra also predeceased her leaving behind the 2nd respondent as her legal heir. The 1st and 2nd respondents have also filed their consent affidavit, consenting for grant of probate in favour of the petitioner herein.
3. Gist of the averments found in the written statement filed by the 4th respondent/2nd defendant, is as follows:
| GENEALOGY | ||||
| Chellappa Naicker (died) – Kannammal (died) | ||||
| Palani | Thiyagarayan (Plaintiff) | Chandra (died) | ||
| Siva (son) (R1) | Vijaya (Daughter) (D1) | Meenakshi (Daughter) (D2) |
| Nithya (Daughter) (R2) |
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