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2018 DIGILAW 1962 (MAD)

R. Parthasarathy v. N. Mannamal

2018-06-26

N.SATHISH KUMAR

body2018
JUDGMENT : The Testamentary Suit in T.O.S.No.1 of 2016 and the Second Appeal in 359 of 2014 were tried together since the subject matter of the property in the Second Appeal in S.A.No.359 of 2014 is the subject matter of the Will, which is the main issue in T.O.S.No.1 of 2016. 2. The brief facts leading to the filing of the suit in T.O.S.No.1 of 2016 is as follows : The petitioner is the son of one G.Ramasamy, who died on 16.02.2001. Though the father of the plaintiff left the Will in the year 2001, the plaintiff was not aware of the fact that Letters of Administration had to be obtained. Only when the defendant filed the suit in O.S.No.4366 of 2008 for partition of the suit property before the XIII Assistant City Civil Court, Chennai, the plaintiff approached the counsel and handed over the Will to file an application for Letters of Administration. However, the erstwhile counsel misplaced the original Will in his office and was not able to trace the same. Since the plaintiff was requesting the erstwhile counsel, he has presented O.P.SR.No.3559 of 2010. Thereafter, again his erstwhile counsel lost the case bundle. Therefore, the present Original Petition has been filed. Thereafter, the same has been converted into a suit after caveat has been filed by the defendant herein. 3. The defendant is the sister of the plaintiff. It is the contention of the defendant that there was no Will. If there had been a Will, the plaintiff would have changed the name in Property Tax and other documents. Even during the pendency of the Civil Suit, the plaintiff had not produced the original Will and taken a contrary statement in the affidavit before the appellate Court and he has taken a contrary view with regard to the Will. The reasons assigned in the petition for delay in filing Letters of Administration is contrary to the stand taken before the trial Court in the suit. It is the contention of the defendant that if there had been a Will, he would have changed his name in the properties. Therefore, the Will is nothing but a forged one. 4. Based on the above pleadings, the following issues were famed by this Court : 1. Whether the Will dated 13.12.200 is executed by G.Ramasamy is true and genuine? 2. To what other reliefs, the plaintiff is entitled? 5. Therefore, the Will is nothing but a forged one. 4. Based on the above pleadings, the following issues were famed by this Court : 1. Whether the Will dated 13.12.200 is executed by G.Ramasamy is true and genuine? 2. To what other reliefs, the plaintiff is entitled? 5. The Original Suit in O.S.No.4366 of 2007 has been filed by the plaintiff in testamentary suit for partition claiming half share in the property left by her father. The suit has been decreed. The appeal filed against the decree and judgment in A.S.No.352 of 2010 was also dismissed, as against which the present second appeal has been filed. The suit and the appeal were dismissed on the ground that the Original Will had not been produced and proved. 6. While admitting the Second Appeal, the following substantial questions of law have been framed : 1. Whether the Courts below are justified in re-writing the last wish of the deceased G.Ramasamy expressed by him in his Last Will and Testatment dated 13.12.2000 executed by him? 2. Whether the Courts below are justified in refusing to rely on a copy of the Will dated 13.12.2000, when the appellant had filed the original of the same in probate proceedings? 7. Since the issue in the Second Appeal as well as in the testamentary suit relate to the property of one G.Ramasamy, both the matters were clubbed together for disposal. 8. We proceed with T.O.S.1 of 2016. The learned counsel for the plaintiff would submit that the Will left by G.Ramasamy gave life interest to his wife and also to the plaintiff and thereafter vested remainder to his son. Merely because an application for Letters of Administration has not been filed, within the period of three years, it cannot be said that there is no Will at all. 9. As per the Original Side Rules, when an application is filed beyond three years, for grant of Letters of Administration, sufficient reason has to be given for the delay, by the party to file such application. In this case, the plaintiff has clearly averred the circumstances under which he could not file an application within three years. Therefore, the delay in filing an application for grant of probate will not affect the case of the plaintiff. 10. In this case, the plaintiff has clearly averred the circumstances under which he could not file an application within three years. Therefore, the delay in filing an application for grant of probate will not affect the case of the plaintiff. 10. It is the further contention of the learned counsel that the Will is a holographic Will executed by G.Ramasamy giving life interest to his wife and his son and absolute interest to his grandson. The Will has been proved in the manner known to law. The attesting witness has not only spoken about the execution but also the attestation of the Will. Besides, there is no suspicious circumstance whatsoever brought on record to doubt the genuineness of the Will. Further in the entire Written Statement, no circumstance, whatsoever, has been pleaded with regard to the execution of the Holographic Will except contending that the reason is not proper in filing an application with delay. The Will has not been denied at all. Except in one line stating that the Will is a result of forgery, entire execution of the Will has not been denied in the Written statement. 11. It is the further contention of the learned counsel for the plaintiff that merely because the grand son was a beneficiary, it cannot be contended that the plaintiff has no locus standi for applying for grant of Letters of Administration. Hence, prayed for decree and judgment in TOS No.1 of 2016 and also prayed for allowing the second appeal, in view of the Will being proved. 12. Countering the above arguments, the learned counsel appearing for the defendant mainly contended that the reason assigned by the plaintiff for the delay in filing Letters of Administration is not convincing and is contrary to his admission in the suit. Further nothing prevented the plaintiff from producing the original Will even during the trial in the suit filed for partition. Hence, submitted that that itself is one of the suspicious circumstance in respect of the Will. 13. Another contention of the learned counsel for the defendant is that the plaintiff is not a beneficiary under the Will. Though the body of the Will appears to be that he has life interest, the latter part of the Will clearly stipulates that after the death of the wife of the testator, the property shall vest with the grandson of the testator. Though the body of the Will appears to be that he has life interest, the latter part of the Will clearly stipulates that after the death of the wife of the testator, the property shall vest with the grandson of the testator. Admittedly, the beneficiary has not come before this Court. Therefore, the plaintiff cannot seek for probate or Letters of Administration. When the beneficiary himself has not applied for the same, having regard to the above facts, the plaintiff has no interest as per the Will and cannot maintain the testamentary suit for grant of Letters of Administration. 14. In the light of the above submissions, we have to proceed with answering the issues one by one. 15. The plaintiff and the defendant are the son and daughter of one G.Ramasamy, who died on 16.02.2001. Ex.P.2 is filed to prove his date of death. The suit has originally been filed for grant of Letters of Administration, and subsequently has been converted as a suit in view of the caveat lodged by the defendant. It is also an admitted fact that the defendant had already filed a suit for partition which culminated into Second Appeal in S.A.No.329 of 2014. 16. The Will dated 13.12.2000 left by the said G.Ramasmy is the main issue in the suit. The Will has been marked as Ex.P.1. The plaintiff was examined as P.W.1. In his evidence, he has stated about the execution of the Will by his father. A perusal of the entire written statement as well as the cross examination of P.W.1 by the defendant reveals that the execution of the Will was not denied. Except a vague denial in the written statement to the effect that if there had been a Will, the plaintiff would have effected mutation of records and therefore, the Will is forged, the execution of the has not been specifically denied. The execution of the Will has not been denied. Even in the cross examination of P.W.1, no suspicious circumstance whatsoever has been suggested to P.W.1 with regard to the Will left by G.Ramasamy. Of course, mere admission or non denial of the facts with regard to the Will is not sufficient to infer the proof of the document. The Will has to be proved in the manner known to law. For such proof atleast one of the attesting witness evidence is required. 17. Of course, mere admission or non denial of the facts with regard to the Will is not sufficient to infer the proof of the document. The Will has to be proved in the manner known to law. For such proof atleast one of the attesting witness evidence is required. 17. In this regard P.W.2, one Sadasivam was examined as an attesting witness. In his evidence he has stated that he was present in the house of the testator along with one Manickam at the time of the execution of the Will. The testator executed the Will in his presence and also in the presence of the said Manickkam, while he was in sound disposing state of mind. Similarly, the testator has seen the witnesses subscribing their signature in the Will. It is also the evidence of P.W.2 that the testator had testamentary capacity to write the Will at the relevant point of time. P.W.2 is a retired Joint Secretary to Government. There is no reason for him to falsely depose as against the defendant. Even in the cross examination, it is not even denied the facts spoken by P.W.2 in the chief examination. It is well settled that when the facts spoken in the Chief examination was not denied specifically in the cross examination, the facts so not denied have deemed to be admitted. The evidence of P.W.2 further discloses that he was a neighbour of the testator. Therefore, in the absence of pleadings and evidence and materials even to infer any suspicious circumstance, this Court has no other option except to accept the evidence of the parties. Weighing the evidence of P.W.2, this Court does not find any suspicious circumstance attached to the Will. Of course, the defendant was excluded in the Will. Mere exclusion of one of the legal heir by the testator itself cannot be suspicious circumstance. 18. The evidence of D.W.1 namely the defendant shows that she was married in the year 1967 and after marriage she was residing with her husband at Teynampet. Only the plaintiff and his son were living with the parents, till the death of the deceased, namely the testator herein. Therefore, it is the normal human conduct of any body to show leniency towards the only son and his family who has taken care of himself and his wife during their life time. Only the plaintiff and his son were living with the parents, till the death of the deceased, namely the testator herein. Therefore, it is the normal human conduct of any body to show leniency towards the only son and his family who has taken care of himself and his wife during their life time. Therefore, I am of the view that merely because the defendant, being one of the daughter of G.Ramasamy, has been excluded in the Will, the same cannot be a ground to defeat the execution of the testator. The Court has to respect the intention of the testator and on mere technicalities, such intention cannot be defeated. 19. Ex.P.1 is the hand written Will, a holographic Will. A careful perusal of the Will reveals that the Will has been written by G.Ramasamy in his own hand writing. The recitals further show that originally a vacant site was allotted to him by the Housing Board. Thereafter, he had put up construction with the help of his only son Parthasarathy. Reserving life interest to his wife, he has bequeathed the entire property to his grand son Ashokkumar. Though the body of the Will shows that he has given life interest to his son also, in the latter portion of the Will, he has specifically stated that after their life time, the property shall go to his grandson Ashokkumar. Therefore, the latter part of the Will shall prevail over the earlier part of the Will and it should be construed that the Will property has been bequeathed only to the son of the plaintiff. The handwriting of the testator is also not denied by the defendant. When the entire execution and attestation has been proved as per law and in the absence of any suspicious circumstance, the Court has to necessarily accept the Will. Further having pleaded in one line in the written statement that the Will is a result of forgery, the defendant, has not even denied the handwriting of her father in the Will. Similarly, the signature of the testator in the Will is also not denied, not only in the written statement but also in the evidence. Further to unearth the alleged forgery, no steps whatsoever have been taken by the defendant. It is well settled law that the party who asserts or alleges forgery, the burden lies on them to establish such forgery. Further to unearth the alleged forgery, no steps whatsoever have been taken by the defendant. It is well settled law that the party who asserts or alleges forgery, the burden lies on them to establish such forgery. Hence, this Court is of the view that the Will has been properly executed by the said G.Ramasamy. 20. Now it has to be seen that whether the delay occurred for applying for grant of Letters of Administration of the Will entitle the persons for the benefits of the Will. It is to be noted that as per Order 25 Rule 9 of the Madras High Court Original Side Rules, the only requirement is that the delay in coming to the Court beyond the three years of the execution of the Will has to be explained. The plaintiff not only in his pleadings but also in his evidence has explained the circumstances in which the delay has occurred. It is to be noted that when the suit was filed before the trial Court in the year 2007 itself for partition in O.S.No.4366 of 2007, the existence of the Will was known to the defendant. In the reply notice also the defendant has pleaded about the Will. Since the original copy of the Will could not be produced before the Court, the suit has been decreed in favour of the defendant and the appeal has also been dismissed and now the delay is bonafide and the reason for the delay has also been properly explained. 21. In this regard it is useful to refer to the judgment of the Supreme Court reported in 2005(1) Supreme Court Cases 280 Meenakshiammal Vs. Chandrasekaran and another in which it has been held as follows : “8. The requirement of proof of a Will is the same as any other document excepting that the evidence tendered in proof of a Will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. Chandrasekaran and another in which it has been held as follows : “8. The requirement of proof of a Will is the same as any other document excepting that the evidence tendered in proof of a Will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the Court either believes that the Will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the Will was duly executed by the testator, then the factum of execution of Will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers. What was told by Baron Alderson to the Jury in R v. Hodge, 1838, 2 Lewis CC 227 may be apposite to some extent. "The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected hole; and the more ingenuous the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete." The conscience of the Court has to be satisfied by the propounder of Will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a Will provided that there is something unnatural or suspicious about the Will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict ‘positive or negative.” 22. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict ‘positive or negative.” 22. Similarly, the Division Bench of this Court in the judgment reported in 2016(1) Law Weekly 577 S.Vatsala Vs. K.S.Mohan and others, has held as follows : “49. In the light of the ratio laid in the above decisions, it cannot be stated that Letters Patent and Rules made thereunder by the High Court for regulating the procedure on the original side, are subordinate legislation and, therefore, only Limitation Act which is a superior legislation will prevail. On a conspectus of the above legal scenario, we conclude that the probate Court has been conferred with exclusive jurisdiction and particularly, the conspicuous absence of any period of limitation in applying for issuance of probate / Letters of Administration makes it clear that the law of limitation will not apply to Sections 232 and 278 of the Indian Succession Act in respect of proceedings initiated before this Court as per the Original Side Rules. In such view of the matter, the finding of the learned single Judge holding that Article 137 of the Limitation Act is not applicable to probate proceedings and dismissal of the Original Applications, in our considered opinion, require no interference.” In this case also, no suspicious circumstance whatsoever was brought to the notice of this Court and mere doubt in view of the delay cannot be a ground to non suit the Will. 23. One more argument advanced by the learned counsel for the defendants that since the plaintiff is neither the beneficiary nor the executor, he has no right to seek for Letters of Administration of the Will. Such contention cannot be countenanced for the simple reason that the plaintiff is the father of beneficiary of the Will. He is acting on behalf of his son. Therefore, he is always construed as an agent of his son. As per the learned counsel for the plaintiff, his son is now in abroad on a job and therefore, nothing prevents the father from claiming Letters of Administration on behalf of his son. 24. He is acting on behalf of his son. Therefore, he is always construed as an agent of his son. As per the learned counsel for the plaintiff, his son is now in abroad on a job and therefore, nothing prevents the father from claiming Letters of Administration on behalf of his son. 24. In the regard Section 243 of the Hindu Succession Act reads as follows : “243. Administration When a person entitled to administration in case of intestacy is absent from the State, and no person equally entitled is willing to act, letters of administration may be granted to the attorney or agent of the absent person, limited as mentioned in section 241.” 25. Hence, I am of the view that even the attorney is entitled for grant of Letters of Administration in the absence of the person, that being so, the father of the beneficiary is also entitled to apply for Letters of Administration in the absence of his son. Hence, the contention of the learned counsel cannot stand. 26. In view of the fact that the Will has been established and proved in the manner known to law, the plaintiff is entitled to the Letters of Administration. In view of the same the Second Appeal filed by the plaintiff has to be allowed. It is also made clear that in the event of the decree and the judgment of the testamentary suit is reversed in the appeal and finality is reached, the second appeal would stand allowed with the above observation. 27. In the result, (i). The suit in T.O.S.No.1 of 2016 is decreed. (ii) The Second Appeal in S.A.No.329 of 2014 is allowed. (iii). The Letters of Administration, having the effect limited to the State of Tamil Nadu, shall be issued in favour of the plaintiff in respect of the Will dated 13.12.2000 until the petitioner's son obtain Letters of Administration. (iv). The plaintiff is directed to duly administer the estate of the deceased. (v). The plaintiff shall execute a security bond for a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) in favour of the Assistant Registrar (O.S-II), High Court, Madras. (vi). The plaintiff are further directed to render true and correct accounts once in a year. (vii). No costs.