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2012 DIGILAW 1103 (MAD)

P. R. Vijayarangan v. P. R. Ramanujam

2012-02-29

C.NAGAPPAN, M.SATHYANARAYANAN

body2012
Judgment :- C. NAGAPPAN, J. 1. Testamentary Original Suit in T.O.S.No.25/2002 and the Civil Suit in C.S.No.325/2003, both on the file of this Court, came to be disposed of by a common judgment rendered on 22.4.2009, by the learned Single Judge. 2. The original side appeal in O.S.A.No.173/2009 is preferred against the judgment and decree in C.S.No.325/2003. The second defendant is the appellant herein. Pending appeal, he died and his legal representatives were brought on record as appellant Nos.2 to 4 in the appeal. Pending appeal, the second respondent also died and his legal representatives have been brought on record as respondents 3 to 5 in the appeal. 3. The Original Side Appeal in O.S.A.No.174/2009 is preferred against the judgment and decree in T.O.S.No.25/2002. The plaintiff is the appellant herein. Pending appeal, the plaintiff died and his legal representatives have been brought on record as appellant Nos.2 to 4 in the appeal. 4. The original appellant in both the appeals is one and the same. Since both the appeals have been preferred against the common judgment, they are heard together and a common judgment is rendered. 5. In the common judgment made by the learned Single Judge, to avoid confusion, the plaintiff in T.O.S.No.25/2002, who is the second defendant in C.S.No.325/2003, has been referred to as plaintiff and the defendant in T.O.S.No.25/2002, who is the plaintiff in C.S.No.325/2003, has been referred to as defendant. In the appeals also, to avoid confusion, the parties are referred to as above. 6. The case of the plaintiff in brief, is as follows: The plaintiff, the defendant, the first defendant in the partition suit and the deceased P.R.Vijayalakshmi are the sons and daughter of late P.R.Ramakrishna Mudaliar respectively, who died in the year 1969. A memorandum of family arrangement for partition and share of the properties of their late father was prepared and signed by all the heirs and they approached the promoter/developer for construction of flats and entered into an agreement with the builder. A Kurai Chittu dated 25.10.1998, was prepared for partitioning the properties of late P.R.Ramakrishna Mudaliar and the same was signed by the plaintiff, defendant, first defendant in the partition suit and also their sister P.R.Vijayalakshmi. Door No.51, Ayyamudali Street, Chindadripet, Chennai 2, was allotted to the plaintiff, defendant and the first defendant in the partition suit and Door No.54 in the same Street, was allotted to P.R.Vijayalakshmi. Door No.51, Ayyamudali Street, Chindadripet, Chennai 2, was allotted to the plaintiff, defendant and the first defendant in the partition suit and Door No.54 in the same Street, was allotted to P.R.Vijayalakshmi. Since the properties were already partitioned, the suit for partition now laid by the defendant, is not maintainable. Further, Selvi P.R.Vijayalakshmi, who was the absolute owner of the properties bearing Door No.54, Ayyamudali Street, Chindadripet, Chennai 2, and Flat No.001, Pammal Court, 8/1, Raja Annamalai Road, Purasawalkam, Chennai 84, bequeathed the said properties to the plaintiff by registered Will dated 9.11.2001. The plaintiff is the beneficiary under the Will and he was also appointed as Executor of the same. Insofar as the gold ornaments and other movables mentioned as item 4 of the Schedule in the partition suit, is concerned, they were belonging to mother and sister and after the death of mother, they were sold by the sister. The plaintiff has sought for grant of probate in the Testamentary Original Suit and also prayed for dismissal of the partition suit. 7. The case of the defendant in brief, is stated thus: The first defendant in the partition suit, is the legal heir of late P.R.Ramakrishna Mudaliar through his first wife Shenbagammal. After his death, the defendant, the first defendant in the partition suit and the plaintiff inherited the properties at Door Nos.51 and 54, Ayyamudali Street, Chindadripet, Chennai, along with their mother and sister P.R.Vijayalakshmi and the property at Pammal Court, Purasawalkam, Chennai, was inherited by the plaintiff, the defendant and their sister P.R.Vijayalakshmi from their mother and they dealt with the said property, pursuant to which, Flat No.2 was given to the defendant and Flat No.1 was given to P.R.Vijayalakshmi and the plaintiff received his share in cash. P.R.Vijayalakshmi was not the absolute owner of the property bearing Door No.54, Ayyamudali Street, Chindadripet, Chennai 2, and also the property at Pammal Court is not her individual property and she could not have bequeathed both the properties under the Will. A family arrangement was agreed upon between all the three sons and the daughter; but, release deed could not be executed as P.R.Vijayalakshmi was not in a sound state of health and mind and the family arrangement could not be acted upon. A family arrangement was agreed upon between all the three sons and the daughter; but, release deed could not be executed as P.R.Vijayalakshmi was not in a sound state of health and mind and the family arrangement could not be acted upon. Insofar as the Pammal Court property is concerned, the plaintiff and the defendant are entitled to half share each and in respect of the properties bearing Door Nos.51 and 54, Ayyamudali Street, Chindadripet, Chennai 2, the plaintiff, the defendant and the first defendant in the partition suit, are each entitled to 1/3rd share. P.R.Vijayalakshmi was suffering from breast cancer and she also sustained a stroke which immobilized her. She could not move her left hand and left leg from the year 1988 onwards. She was mentally disturbed and was not in a sound state of mind and to relieve her of the pain, she was constantly kept under sedation. The alleged Will is not genuine and there is no reason to exclude the defendant from the estate of the testatrix. The defendant prayed for dismissal of the Testamentary Original Suit and sought for a decree in the partition suit as prayed for. 8. On the above pleadings, five issues were framed in T.O.S.No.25/2002 and eight issues were framed in C.S.No.325/2003. The parties went on separate trial, and in T.O.S.No.25/2002, on the side of the plaintiff, P.Ws.1 to 3 were examined and Exs.P1 to P9 were marked and on the side of the defendant, the defendant examined himself as D.W.1 and Exs.R1 and R2 were marked. In C.S.No.325/2003, on the side of the plaintiff therein, P.W.1 was examined and Exs.P1 to P8 were marked and on the side of the defendants therein, the second defendant was examined as D.W.1 and Exs.D1 to D5 were marked. In C.S.No.325/2003, on the side of the plaintiff therein, P.W.1 was examined and Exs.P1 to P8 were marked and on the side of the defendants therein, the second defendant was examined as D.W.1 and Exs.D1 to D5 were marked. On consideration of the rival submissions and the evidence both oral and documentary, learned Single Judge held that the testatrix had not executed the Will in a free, sound and disposing state of mind and it is not true and valid and the plaintiff, the defendant and the first defendant in the partition suit, are entitled to 1/3rd share each in the first and second items of the Schedule of properties in the partition suit and the plaintiff and the defendant are entitled to half share each in the third item of the above Schedule and the plaintiff is not entitled to partition with respect to fourth item of the above Schedule and granted a preliminary decree in the above terms in the partition suit and dismissed the Testamentary Original Suit. Challenging the same, both the appeals came to be preferred by the appellant/plaintiff. 9. At the time of hearing the appeals, Mr.M.Sriram, learned Counsel for the appellants in O.S.A.No.173/2009, has made the following endorsement: "The Appellants are not disputing the Decree in Item No.1 Door No.51, Ayyamudali Street, Chindadripet, Chennai 2, in C.S.325 of 2003 dated 22.4.2009, in respect of shares of legal heirs of Late Ramakrishna Mudaliar." The said endorsement is recorded. Consequently, the judgment and decree passed by the learned Single Judge, pertaining to item 1 of the Schedule in C.S.No.325/2003, are to be confirmed. 10. Consequently, the judgment and decree passed by the learned Single Judge, pertaining to item 1 of the Schedule in C.S.No.325/2003, are to be confirmed. 10. Mr.M.Venkatachalapathy, learned Senior Counsel appearing for the appellant/plaintiff, submits that the plaintiff in order to prove Ex.P1 registered Will, examined P.Ws.2 and 3, who are the attestors, and also examined himself as P.W.1 and proved that the Will was signed by the testatrix and she was in a sound and disposing state of mind and understood the nature and effect of disposition and the onus on his part as Executor stands discharged and then the onus is shifted to the defendant to prove the suspicious circumstances raised by him; but, he has miserably failed to substantiate the same by adducing contra evidence and the finding of the learned Single Judge that the testatrix had not executed the Will in a free, sound and disposing state of mind is erroneous and unsustainable in law. In support of his submission, learned Senior Counsel relied on the following decisions of the Supreme Court: (i) AIR 1982 SUPREME COURT 133 (INDU BALA BOSE AND OTHERS V. MANINDRA CHANDRA BOSE AND ANOTHER); (ii) 2004 (5) CTC 790 (DAULAT RAM AND OTHERS V. SODHA AND OTHERS); (iii) 2006-2-L.W. 658 (PENTAKOTA SATYANARAYANA AND OTHERS V. PENTAKOTA SEETHARAMAN AND OTHERS) and (iv) 2008-1-L.W. 255 (SAVITHRI AND OTHERS V. KARTHYAYANI AMMA AND OTHERS). 11. The decision of the Division Bench of this Court in CORRA VEDACHALAM CHETTY AND ANOTHER V. G.JANAKIRAMAN (2001 (3) CTC 283) is also relied on by the learned Senior Counsel in this regard. 12. It is also the submission of the learned Senior Counsel that there was a partition in the family on the basis of Kurai Chittu dated 25.10.1998, and though its original could not be marked in the trial of the case, there is corroborative evidence available in the form of recitals in Ex.D2, General Power of Attorney dated 28.10.1998, admitted by the parties and the learned Single Judge has failed to appreciate the same and the finding that the defendant is entitled to a decree for partition is also erroneous and unsustainable. 13. 13. Per contra, Mr.S.D.Balaji, learned Counsel appearing for the contesting first respondent/defendant, submits that there is no mention in the recitals in Ex.P1 registered Will, about the first respondent and the name of the Advocate who drafted the Will, is not found mentioned therein and the signatures of the testatrix found in it, are entirely different and the Advocate who drafted the Will, and the Sub Registrar have not been examined and there is some discrepancy with regard to the time of visit of the Sub Registrar to the residence of the testatrix and it is a suspicious circumstance and the testatrix herself is not the absolute owner of the properties bequeathed and she was also not in a sound and disposing state of mind at the time of execution of the Will and the finding that the Will is not genuine is sustainable in law. 14. It is the further submission of the learned Counsel that the original Kurai Chittu was not exhibited before the Court for scrutiny and any amount of oral evidence cannot be looked into for a document, which was not before the Court, and in the absence of any material evidencing partition, the preliminary decree granted by the learned Single Judge, is correct and proper. In support of his submission, he mainly relied on the decision of the Supreme Court in JOSEPH ANTONY LAZARUS (DEAD) BY LRS. V. A.J.FRANCIS ( 2006(3) SUPREME 259 ). 15. In the light of the submissions made, the following points arise for consideration: (1)Whether Ex.P1 registered Will is true, valid and genuine? (2)Whether the testatrix is the absolute owner of the properties bequeathed under the Will? (3)Whether the plaintiff is entitled to the grant of probate as the sole beneficiary under the Will? (4)Whether there was partition on 25.10.1998, as contended by the plaintiff? (5)To what relief, the plaintiff is entitled? 16. POINT No.1: Ex.P1 is the registered Will dated 9.11.2001. The testatrix P.R.Vijayalakshmi has bequeathed house and ground bearing Door No.54, Ayyamudali Street, Chindadripet, Chennai 2 and Flat No.001, Pammal Court, 8/1, Raja Annamalai Road, Purasawalkam, Chennai 84, in favour of her brother P.R.Vijayarangan, the plaintiff. (5)To what relief, the plaintiff is entitled? 16. POINT No.1: Ex.P1 is the registered Will dated 9.11.2001. The testatrix P.R.Vijayalakshmi has bequeathed house and ground bearing Door No.54, Ayyamudali Street, Chindadripet, Chennai 2 and Flat No.001, Pammal Court, 8/1, Raja Annamalai Road, Purasawalkam, Chennai 84, in favour of her brother P.R.Vijayarangan, the plaintiff. In the recitals in Clause Nos.1 and 2, the testatrix has stated that she was living with her mother and her brothers as joint family in the house in Door No.51, Ayyamudali Street, Chindadripet, Chennai 600 002 and her father died on 31.10.1969, followed by the death of her mother on 12.9.1988, intestate and she inherited Door No.54, Ayyamudali Street, Chindadripet, Chennai 2, by Kurai Chittu dated 25.10.1998, and also a flat in Pammal Court No.001, 8/1, Raja Annamalai Road, Purasawalkam, Chennai 84 and after the demise of her mother, under the family arrangement dated 22.3.1989, she became the absolute owner of the properties. In Clause No.3, it is stated that the testatrix was alert in mind, capable of understanding the consequences of her act though she was afflicted with paralytic attack and suffering from fractured left leg and became immobilized and her brother P.R.Vijayarangam has been taking care of all her needs and fulfilling her wishes and she is in a sound state of mind and can sign the document in English in the presence of witnesses. In Clause No.5, the testatrix has stated that in order to avoid any dispute among her brothers and relatives, she made this Will on her own without any compulsion or pressure. In Clause No.6, she has expressed her wish that the beneficiary, namely the plaintiff, should perform annual Bramhaotsavam function at Desikar Koil, Chitrakulam, Mylapore, Chennai 4 and on the date of her Thithi, there must be poor feeding in any ashram and Annadhanam to be made in her name at Tirupathi Tirumala Devasthanam, Tirupathi. In Clause No.8, she has appointed her brother P.R.Vijayarangam as an Executor to take steps to get the Will probated. The Will is registered as document No.98 of 2001 on the file of the Sub Registrar, Periamet. There are two attesting witnesses to the Will. 17. The first attestor V.R.Sowminarayanan has been examined as P.W.2 in T.O.S.No.25/2002. In Clause No.8, she has appointed her brother P.R.Vijayarangam as an Executor to take steps to get the Will probated. The Will is registered as document No.98 of 2001 on the file of the Sub Registrar, Periamet. There are two attesting witnesses to the Will. 17. The first attestor V.R.Sowminarayanan has been examined as P.W.2 in T.O.S.No.25/2002. It is his testimony that he is Senior Geologist in the Geological Survey of India and the plaintiff is his father-in-law and the testatrix executed the Will in his presence and in the presence of other attesting witness and both the attesting witnesses subscribed their signatures in the Will in the presence of the testatrix. He has also testified that the testatrix was in a sound and disposing state of mind, memory and understanding. The second attestor Mrs.V.Gowri is examined as P.W.3 and she has testified that she was working as maidservant in the house of the testatrix for four years and the testatrix was in a sound and disposing state of mind, memory and understanding and she executed the Will in the presence of herself and the other attesting witness and both of them subscribed their signatures in the Will as attestors in the presence of the testatrix and a person from the Sub Registrar Office was present when the Will was executed. Exs.P8 and P9 are the affidavits filed by P.Ws.2 and 3 respectively in the probate proceedings. 18. The Executor and beneficiary of the Will, namely the plaintiff, examined himself as P.W.1 in the probate proceedings and he has testified that the testatrix is his sister Vijayalakshmi and she executed Ex.P1 Will, in the presence of himself and the attesting witnesses on 9.11.2001, and the Will came to be registered on the same day. 19. The legal requirements of the provisions of Section 63 of the Indian Succession Act, 1925, and Section 68 of the Indian Evidence Act, 1872, have to be satisfied to prove the Will. The settled law discerned from the decision of the Supreme Court in Indu Bala Bose caserelied on by the learned Senior Counsel for the appellants and referred above, is as follows: "7. The settled law discerned from the decision of the Supreme Court in Indu Bala Bose caserelied on by the learned Senior Counsel for the appellants and referred above, is as follows: "7. This Court has held that the mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations." 20. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations." 20. The following circumstances have been raised by the learned Counsel for the first respondent/defendant as suspicious circumstances vitiating the Will: (i)The testatrix afflicted with cancer and paralytic attack, was mentally disturbed and was not in a sound state of mind; (ii)The disposition under Ex.P1 Will, appears to be unnatural since no reason is assigned for disinheriting the defendant and (iii)The propounder himself has taken prominent part in the execution of the Will which confers on him the substantial benefit. 21. In the recitals in Ex.P1 Will, the testatrix has mentioned that she was afflicted with paralytic attack and has become immobilized and in the oral testimonies also, P.Ws.1 to 3 have admitted that the testatrix had paralytic attack on the left side of the body and she became immobilized. The defendant in his written statement in the probate proceedings, has stated that the testatrix suffered breast cancer and high sugar. P.W.1 in the cross-examination, has stated that the testatrix has not undergone Chemo Therapy treatment because the Doctor has given advice that she cannot tolerate the Gama Rays. It his further testimony that Cancer was detected in December 2001, subsequent to the execution of the Will. The fact remains that the testatrix was affected by Cancer during the relevant point of time. Though there is evidence available to show that the testatrix was suffering from ailments referred above, there is nothing on record to show that she was not in a sound state of mind at the time of execution of the Will. The plaintiff has filed Ex.P5 certificate, dated 31.10.2001, issued by Dr.P.G.Chinnakrishnan, M.B.B.S., F.C.G.P., F.C.I.P., MRSH(LOND), DC, (RM), FCCP, certifying that the testatrix P.R.Vijayalakshmi was his patient and she was in a sound state of mind and she can think and act according to conscience and rational thinking. It is true that the said Doctor has not been examined as a witness on the side of the plaintiff. Even if it is eschewed, there is evidence available in the form of testimony of P.W.3 V.Gowri, who as maidservant, was helping the testatrix for four years prior to the execution of the Will. It is true that the said Doctor has not been examined as a witness on the side of the plaintiff. Even if it is eschewed, there is evidence available in the form of testimony of P.W.3 V.Gowri, who as maidservant, was helping the testatrix for four years prior to the execution of the Will. It is her definite testimony that she joined as maidservant in the house of the testatrix after her leg was fractured and the testatrix would eat food by herself and only when the testatrix went to bathroom, she was helping her to walk and she was in a sound state of mind. Since the plaintiff has discharged his initial burden, the onus shifts to the defendant to prove the suspicious circumstances raised by him with regard to the state of mind of the testatrix. In his oral evidence, the defendant as D.W.1, has stated that Ex.P1 Will, could not have been executed by his sister for the reasons that she has not mentioned the defendant's name in the Will; she has not mentioned as to how she has acquired the properties and she has not mentioned the names of Srinivasan and Saraswathi in the Will. As already seen, the testatrix in the recitals in Ex.P1 Will, has categorically stated as to how she became the absolute owner of the properties bequeathed under the Will. It is true that the name of the defendant is not mentioned in the recitals in the Will. As held by the Supreme Court in the decision in Savithri case referred above, the deprivation of the due share by the natural heirs itself is not a factor which would lead to the conclusion that there exists suspicious circumstances and for the said purpose, the background facts should also be taken into consideration. In the pleading, the plaintiff has stated that he alone was taking care of his sister Vijayalakshmi who was bed ridden. In the recitals in Ex.P1 Will also, the testatrix has stated that the plaintiff has been taking care of all her needs and fulfilling her wishes. In such circumstances, no exception can be taken for his exclusion in the Will by the testatrix. Further, the conduct of the defendant has to be looked into. In the recitals in Ex.P1 Will also, the testatrix has stated that the plaintiff has been taking care of all her needs and fulfilling her wishes. In such circumstances, no exception can be taken for his exclusion in the Will by the testatrix. Further, the conduct of the defendant has to be looked into. The defendant in his written statement filed in the probate proceedings, has disputed the title of the testatrix even with regard to the flat in Pammal Court, whereas in the plaint filed by him in the partition suit, he has admitted that Flat No.001 of Pammal Court, namely the third item of the Schedule in the partition suit, was given to his sister Vijayalakshmi as her share. It is also brought to our notice that during the pendency of the present appeals, the defendant has alienated his undivided 1/3rd share in items 1 and 2 of the Schedule properties in the partition suit, by registered sale deeds dated 6.7.2009, in favour of third parties even before the passing of the final decree. 22. There is no unnatural elements found in the recitals in Ex.P1 Will. A faint attempt was made by the learned Counsel for the first respondent/defendant that there is incoherence in the signature of the testatrix found on each and every page of the Will. We also perused the signatures of the testatrix in Ex.P1 Will. The testatrix was aged 76 at that time and due to old age, it is but natural that there is some shaking found in her signature in each page. We are certain that there is no difference in the natural texture and clarity of her signature found in each and every page of the Will. 23. A contention was raised by the learned Counsel for the first respondent/defendant that there is discrepancy as to the time at which the Will came to be registered. We do not find much force in this contention. The Will came to be executed on 9.11.2001, and came to be registered on the same day by the Sub Registrar, Periamet. 23. A contention was raised by the learned Counsel for the first respondent/defendant that there is discrepancy as to the time at which the Will came to be registered. We do not find much force in this contention. The Will came to be executed on 9.11.2001, and came to be registered on the same day by the Sub Registrar, Periamet. The Registration endorsement found on the backside of page No.1 of Ex.P1 original Will, is to the following effect: "Presented in the Office of the Sub Registrar of Periamet at her private residence No.54 Ayyamudali Street, Chindadripet, Madras 2 and fee of Rs.600.00 paid between the hours of 6 to 6.15 PM on 9th November 2001" 24. Moreover, Section 31 of the Registration Act, 1908, read with Rules 38 to 41 of the Registration Rules provide for registration of the document at the private residence of any person on a special request. The Will has been registered as Document No.98 of 2001 on the file of the Sub Registrar, Periamet and there is nothing to suspect in it. 25. The other contention of the learned Counsel for the first respondent/defendant that the beneficiary under the Will, namely the plaintiff, took an active role in the matter of execution of the Will and hence it is a suspicious circumstance cannot be accepted in the light of the background facts stated above, and in the light of the decision of the Supreme Court in Savithri case cited supra. In the present case, the propounder of the Will, namely the plaintiff, has shown satisfactory evidence in the form of testimonies of P.Ws.2 and 3 that the Will was signed by the testatrix and at the relevant time, she was in a sound and disposing state of mind. Therefore, the onus on the propounder can be taken to be discharged on proof of the above essential facts. On the other hand, the defendant has not substantiated the plea of suspicious circumstances put forth by him, in a satisfactory way to dislodge the Will. The finding of the learned Single Judge that the testatrix had not executed Ex.P1 Will, in a free, sound and disposing state of mind cannot be sustained and is liable to be set aside. 26. The finding of the learned Single Judge that the testatrix had not executed Ex.P1 Will, in a free, sound and disposing state of mind cannot be sustained and is liable to be set aside. 26. POINT Nos:2 to 5: The next question that would arise for consideration is as to whether the testatrix has absolute title with regard to the properties bequeathed under the Will. As already seen, the house and ground bearing Door No.54, Ayyamudali Street, Chindradripet, Chennai 2, and Flat No.001, Pammal Court, 8/1, Raja Annamalai Road, Purasawalkam, Chennai 84, are the properties bequeathed under the Will as Schedules I and II respectively. Insofar as Schedule II property, namely Flat No.001, Pammal Court, is concerned, the defendant in his plaint in the partition suit in C.S.No.325/2003, has admitted in clear terms in paragraph No.12, that Flat No.1 was given to his sister P.R.Vijayalakshmi towards her share. In view of the above categorical admission, the absolute title of the testatrix with regard to the said property is established. 27. Insofar as the other property in Schedule I, namely house and ground bearing Door No.54, Ayyamudali Street, is concerned, the testatrix has claimed title to the said property by virtue of Kurai Chittu dated 25.10.1998. As already seen, the original Kurai Chittu dated 25.10.1998, is not marked in the trial of the case by the plaintiff on his side. It is the contention of the learned Senior Counsel for the appellant/plaintiff that the original document was handed over to the builder and during the trial of the suit, he took out subpoena to the said builder for producing the said document and even after receipt of notice, the builder did not come and produce the same before the Court and hence he was not in a position to mark the original document; but, however, there is some corroboration on looking at the recitals in Ex.D2 General Power of Attorney dated 28.10.1998, executed by the parties including the defendant. We find no force in the said contention. First of all, the xerox copy of Kurai Chittu though said to have been in the possession of the plaintiff, has not been marked as secondary evidence during the trial, on his side. In the recitals in Ex.D2 General Power of Attorney also, there is no indication as to the execution of Kurai Chittu on 25.10.1998. First of all, the xerox copy of Kurai Chittu though said to have been in the possession of the plaintiff, has not been marked as secondary evidence during the trial, on his side. In the recitals in Ex.D2 General Power of Attorney also, there is no indication as to the execution of Kurai Chittu on 25.10.1998. The testatrix has claimed exclusive title to the property in Door No.54, Ayyamudali Street, based on the Kurai Chittu. In the absence of the original document evidencing partition, it cannot be concluded that the testatrix had absolute title to the said property. It is true that the testatrix P.R.Vijayalakshmi is also a heir of her father P.R.Ramakrishna Mudaliar who was the owner of the property, namely Door No.54, Ayyamudali Street, Chindadripet, Chennai 2, along with the plaintiff, defendant and also the first defendant in C.S.No.325/2003 and after the death of her father, she would have inherited her 1/4th share in the said property and she is competent to bequeath the same only under Ex.P1 registered Will. The property bequeathed under Schedule I of Ex.P1 registered Will, has to be construed as 1/4th share of the testatrix in Door No.54, Ayyamudali Street, Chindadripet, Chennai 2 and the plaintiff as beneficiary, is entitled to that share only. Insofar as the movables mentioned in item 4 of the Schedule in the partition suit, is concerned, learned Single Judge has held that there is no evidence to show that the movables are available for partition and has dismissed the suit insofar as that prayer is concerned. 28. In the result, O.S.A.No.174/2009 is allowed and the judgment and decree of the learned Single Judge in T.O.S.No.25/2002, are set aside and the plaintiff is entitled to grant of probate with regard to 1/4th share in Schedule – I property, namely Door No.54, Ayyamudali Street, Chindadripet, Chennai 2, and also the entire property in Schedule – II, namely Flat No.001, Pammal Court, 8/1, Raja Annamalai Road, Purasawalkam, Chennai 84. In view of the death of the sole appellant/plaintiff pending appeal, letters of administration will be given in favour of the appellant Nos.2 to 4. T.O.S.No.25/2002 is decreed in the above terms. 29. In view of the death of the sole appellant/plaintiff pending appeal, letters of administration will be given in favour of the appellant Nos.2 to 4. T.O.S.No.25/2002 is decreed in the above terms. 29. Insofar as the partition suit in C.S.No.325/2003 is concerned, the plaintiff and the defendants 1 and 2 therein are entitled to 1/4th share each in item 2 of the Schedule property and the plaintiff therein is not entitled to any share in item 3 of the Schedule property. As regards items 1 and 4 of the Schedule, as already stated, the judgment and decree of the learned Single Judge are confirmed. O.S.A.No.173/2009 is allowed to the extent indicated above and the judgment and decree of the learned Single Judge in C.S.No.325/2003, are modified accordingly. Considering the relationship of the parties, there shall be no order as to costs throughout. Consequently, connected miscellaneous petition is closed.