IN THE HIGH COURT OF JUDICATURE AT MADRAS Judgment Reserved on : 06.06.2024 Judgment Pronounced on : 07.06.2024 CORAM : JUSTICE N. SESHASAYEE T.O.S.No.21 of 2003

1.Mitchel Daniel (Decd.) .... Petitioner in O.P.No.467 of 2001

2.B.S.Coil Pillai .... Petitioner / Plaintiff [Transposition of B.S.Coil Pillai (the first [1st] respondent in O.P.No.467 of 2001 /first [1st] defendant in T.O.S.No.21 of 2003) in the place of late.M.Mitchel Daniel as petitioner, as per order of Court dated 24..02.2004 in Application No.133 of 2004 in T.O.S.No.21 of 2003]

Vs

1.Dr.Vimala Samuel

2.Lalitha Balachander .... Caveators / Defendants Prayer : Petition filed under Section 222 & 276 of the Indian Succession Act, XXXIX of 1925 for grant of probate.

For Plaintiff / : Mr.S.Haja Mohideen Gisthi Petitioner For Caveators / : Mr.R.Thiagarajan Defendants

JUDGMENT

The suit is laid for probate by the Executor of a registered Will executed by a certain Eva R.Coil Pillai on 22.03.1976.

2 A summation of the case of the plaintiff may be briefly stated :

● Eva R.Coil Pillai, the testatrix, had a daughter, the first defendant herein, and a son who is now the plaintiff. Besides, she brought up another girl as her own daughter. She is Lalitha. Eva Coil Pillai died on 12.07.1991, and her husband had pre-deceased her .

● Earlier, on 22.03.1976, some 15 years before her demise, Eva R.Coil Pillai had executed a Will, bequeathing her only property to her son, but to the exclusion of her daughters which included her foster daughter. In the Will, she had appointed a certain Mitchel Daniel as the executor. Mitchel Daniel (1^st plaintiff) is the father-in-law of the testatrix's only son, the second plaintiff herein. The Will was a registered one.

● For probating the Will, the executor has instituted OP.No.467/2001.

During the pendency of the proceedings, the executor died on

16.08.2003. It is in these circumstances, vide an order of this Court dated 24.02.2004 in A.No.133/2004, the beneficiary under the Will (initially the first respondent in OP.No.467 of 2001) was transposed as the second plaintiff.

● Both the daughters of Eva Coil Pillai have filed their caveat, whereupon the proceeding was converted into a suit.

3. In the written statement filed by the first defendant and adopted by the second defendant, it is alleged:

a) The Will is bristled with factual inaccuracies. The second defendant was the foster daughter of the testatrix, and the Will does not make relevant reference to it. There are also inaccuracies vis-a-vis the date of marriage of the second defendant, and the quality of first defendant's matrimonial life. This apart, the Will also requires the executor of the Will to settle the loans of the testatrix, whereas the testatrix was a superannuated medical Officer of the City Corporation, and was receiving pension. This apart, she also received family pension of her late husband. And she had her own house in Coimbatore where she lived.

b) The Will has excluded both the biological daughter as well as the foster daughter of the testatrix. Even though the Will tries to explain why these defendants were excluded from the bequeath, the reasons given are plainly artificial and bristled with cetain factual inaccuracies. Indeed, the Will recites about the second defendant's love affair to a certain Balakrishnan as a reason to exclude her, but it was the testatrix who had organised the marriage of the second defendant.

c) The executor has filed the petition for probate a decade after the demise of the testatrix, and it adds to the suspicion that shrouds the Will.

d) Eva Coil Pillai did not have a comfortable life. First, she was abused and ill-treated by her husband, and later she was abandoned by her son, the sole legatee under the Will. In her later days she had been residing in a Senior Citizen Home at Madurai. The Will is a product of collusion between the son – father-in-law combination and it was not executed in the free will of the testatrix.

e) The testatrix was living in her own house,