TOS.No.42 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 03.04.2023

CORAM

THE HONOURABLE MS.JUSTICE R.N.MANJULA

TOS.No.42 of 2022

S.Jayalakshmi

...

Plaintiff

Vs.

1.Srividya Iyer

2.S.Rekha

3.S.Arjun

4.S.Adithya

Minor rep. by his mother and

natural guardian S.Rekha

... Defendants

PRAYER : Testamentary Original Suit filed under Sections 222 and 276

of the Indian Succession Act read with Order XXV Rule 4 of the Original

Side Rules, praying to allow the plaintiff to prove the Will in common

form and the probate may be granted to the plaintiff having effect limited

to the State of Tamil Nadu.

For Plaintiff

: Mr.K.S.Navin Balaji

For Defendants : Mr.K.Balamurali for

Mr.Shivakumar for D2 to D4

JUDGMENT

The Testamentary Original Suit has been filed to grant probate in

favour of the plaintiff having effect throughout the State of Tamil Nadu.

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TOS.No.42 of 2022

2. The 'A' schedule property belonged to Mr.K.Sundaresan, who is

husband of the plaintiff and on which, there is no dispute. The said

Sundaresan had executed an unregistered Will dated 12.05.2007 in respect

of the 'A' schedule property by bequeathing the same in favour of the

plaintiff herein for her absolute enjoyment. The said Sundaresan died on

05.03.2020. The plaintiff herself has been appointed as an executor of the

Will after the demise of the said Sundaresan. Accordingly, she filed a

petition seeking grant of probate in her favour.

3. Originally, the petitioner has filed a petition in O.P.No.796 of

2021 for grant of probate in favour of the petitioner / plaintiff. In view of

the caveat filed by R2 to R4, the Original Petition in O.P.No.796 of 2021

has been converted as TOS.No.42 of 2022 and the pleadings received.

4. After the issues were framed, trial commenced. The plaintiff

examined herself as P.W.1 and one of the attestor of the Will as P.W.2.

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TOS.No.42 of 2022

5. The said facts about the antecedents of the suit property has been

spoken by the plaintiff / P.W.1 in chief examination. P.W.1 was not cross

examined on these aspects. One of the attestors of the Will by name

K.Mohan has been examined as P.W.2. He has stated in his evidence about

the execution of the Will by the testator Sundaresan and the role played by

him in attesting the same. He also identified the signature of the testator.

He was also not cross examined. The said Will dated 12.05.2007 has been

marked as Ex.P2.

6. Today when the matter was taken up, the learned counsels for

both sides submitted a memo of compromise signed by the plaintiff and

the defendants 2 to 4. The first defendant who is the daughter of the

plaintiff did not file any caveat. So, she has no objection to grant probate

of the Will as prayed by the plaintiff.

7. The second defendant is the wife of the pre-deceased son of the

plaintiff and the defendants 3 and 4 are the children of the second

defendant. The third defendant who is the elder son of the second

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TOS.No.42 of 2022

defendant is said to be in abroad and he has given power of attorney in

favour of his mother, the second defendant herein. The fourth defendant is

a minor son and hence the second defendant had signed the memo of

compromise for herself and as power of attorney for the third defendant

and as the mother and natural guardian for the fourth defendant.

8. When the Court insisted for the personal appearance of the

parties, the learned counsel for the plaintiff submitted that the plaintiff is

aged about 80 years and hence, it is not be possible for her to make her

appearance in person. Similarly, the learned counsel for the defendants

also expressed certain inconvenience for causing appearance of the

defendants 2 to 4. In view of the above said reasons, the parties are

permitted to make their appearance through Whatsapp video ca