JUDGMENT :

P.B. BALAJI, J.

Prayer: Original Side Appeal filed under Order 36 Rule 1 of the Original side Rules read with Clause 15 of Letters Patent against the judgment and decree dated 27.06.2012 made in T.O.S.No. 12 of 1999 and to allow this Appeal.

1. This intra Court Original Side Appeal is directed against the judgment and decree in T.O.S.No. 12 of 1999 dated 27.06.2012 on the file of the Original Side of this Court.

2. The deceased 1st respondent in this appeal filed O.P.No. 376 of 1996 seeking grant of Letters of Administration with a Will dated 05.04.1994 of A.Dharmaraj annexed. The 5th defendant alone contested the request for grant of Letters of Administration and the Original Petition was converted as a Testamentary Original Suit in T.O.S 12 of 1999. The defendants 1, 3, 4 and 6 to 9 did not file any written statement and it was only the 5th defendant, the appellant herein who chose to contest the Will.

3. The plaint in brief:

Late A.Dharmaraj died on 28.04.1995 at Malaysia leaving behind property at Chennai. The said deceased executed his Will at Chennai, on 05.04.1997. The deceased had appointed the plaintiff, A.Pushparaj as the sole executor. However, since the said executor was residing in Malaysia and was unable to obtain Letters of Administration, he appointed one Mr.R.Subrmanian as his Power Agent to apply for grant of Letters of Administration. According to the plaintiff, the Will was the last Will and testament of late A.Dharmaraj and it was executed by him while he was in a sound and disposing state of mind and in the presence of two attesting witnesses.

4. The written statement of the 5th defendant in brief:

The plaintiff had wilfully omitted to implead the 5th defendant in the Original Petition proceedings and there was even delay in furnishing a copy of the Will. The Will is unnatural and could not have been executed by late A.Dharmaraj, out of his own volition. The very execution of the Will on 05.04.1994 by late A.Dharmaraj was emphatically denied.

5. The Learned Single Judge framed the four following issues:

“1. Whether the suit is maintainable for the reasons that it is filed by the Power of Attorney?

2. Whether the Will alleged to have executed by A.Dharmaraj on 05.04.1999 is true, genuine or valid?

3. Whether the plaintiff is entitled for issue of letters of administration as asked for?

4. To what order/relief the plaintiff is entitled to?”

6. Before the Learned Single Judge, the plaintiff examined himself as PW-1 and 4th defendant as PW-2 and marked Exs.P1 to P12. On the side of the defendants, no oral and documentary evidence was let in.

7. The learned Single Judge answering the first issue in favour of the plaintiff held that the petition filed by the Power Agent and continued by the principal subsequently was maintainable. In so far as the issues 2 and 3, the learned Single Judge, no doubt agreeing to the settled position of law that the Will has to be proved by the propounder, proceeded to weigh various facts and circumstances in the said case and found that the Will was satisfactorily proved by the propounder to be true and genuine document.

8. The 5th defendant as appellant has come by way of this Original Side Appeal raising substantial grounds numbering as many as 63 grounds. However, this Court after hearing the counsel for the appellant as well as the counsel for the respondents, feels that the Appeal hinges on a very narrow compass viz., whether the plaintiff has proved due execution and attestation of the Will, as required by Law.

9. The following facts are admitted to by both parties:

1. None of the two attesting witnesses were examined to prove due execution of the Will in question.

2. One of the attesting witnesses originally filed an affidavit of attesting witnesses viz. Mr.Rathnasamy Xavier dated 30.09.1995 as required by the Original Side Rules, along with the Original Petition.

3. Admittedly, the said Rathnasamy Xavier died subsequently on 11.02.2002, before the Trial commenced in the TOS proceed