Research › Search › Judgment

Madras High Court · body

2020 DIGILAW 596 (MAD)

G. Mohan v. G. Munusamy

2020-03-11

SENTHILKUMAR RAMAMOORTHY

body2020
JUDGMENT (Prayer: Testamentary Original Suit filed under Sections 222 and 276 of the Indian Succession Act XXXIX of 1925, to grant Letters of Administration with the Will annexed to them as beneficiaries of the assets of the said deceased having effect throughout the whole of Tamil Nadu.) 1. This Testamentary Original Suit is filed for grant of Letters of Administration with the Will annexed in respect of the last Will and Testament of K.Govindan (the Testator), which is stated to be executed and registered on 05.09.1991 as Document No.144 of 1991 on the file of the Sub Registrar Office, Anna Nagar. 2. O.P. No.270 of 2018 was filed by three of the sons of the Testator. The eldest son, G.Munusamy, was arrayed as the first Respondent. The Testator had seven daughters. Out of the seven daughters, one daughter, namely, Neelavathi, died before the petition was filed. The six surviving daughters of the Testator were arrayed as Respondents. Similarly, the sons and daughters of the predeceased daughter, Neelavathi, were also arrayed as Respondents. In addition, a person called Saravanan, who is referred to in the Will, was arrayed as the thirteenth Respondent. O.P. No.270 of 2018 was converted into T.O.S. No.3 of 2019 at the instance of the first Respondent, who is the contesting Defendant in the suit. The said contesting Defendant filed O.S.No.8243 of 2011 before the City Civil Court at Chennai and the said suit was decreed on 12.02.2014. As against the decree, A.S.No.351 of 2018 (the Appeal Suit), was filed by the Plaintiffs herein and the Appeal Suit was dismissed by order dated 08.03.2019. As against the order in the Appeal Suit, a Second Appeal was filed but it is yet to be numbered. 3. Upon completion of pleadings, the Court framed the following issues: 1. Whether the Will dated 05.09.1991 is true and valid? 2. Whether the plaintiffs are entitled to Letters of Administration with a copy of the Will annexed? 3. To what other reliefs the parties are entitled to? 4. The plaintiffs adduced evidence by examining the first plaintiff as PW1. One of the attesting witnesses, namely, S. Sridharan, was examined as PW2. During the examination-in-chief of PW1, six documents including the Will and the Death Certificate of the Testator were marked as Exs.P1 to P6. The Defendant adduced evidence by examining himself as DW1. 4. The plaintiffs adduced evidence by examining the first plaintiff as PW1. One of the attesting witnesses, namely, S. Sridharan, was examined as PW2. During the examination-in-chief of PW1, six documents including the Will and the Death Certificate of the Testator were marked as Exs.P1 to P6. The Defendant adduced evidence by examining himself as DW1. In addition, Mr.S.Narasimhan, who is said to be acquainted with the Testator and his family, was examined as DW2 and Mrs.Mallika, who is stated to be a tenant, was examined as DW3 with regard to the marriage of the Defendant. A total of 36 documents were exhibited through DW1 as Exs.D1 to D36, two documents through DW2 as Exs.D37-D38 and one document through DW3 as Ex. D39. 5. I heard the learned counsel for the Plaintiffs and the learned counsel for the Defendant. 6. The learned counsel for the Plaintiffs referred to paragraphs 2 to 5 of the plaint so as to set out the facts and circumstances leading to the filing of the Petition, which was subsequently converted into a suit. He submitted that the Plaintiffs are the sons of the late K.Govindan, who died on 01.03.2010. During his life time, the Testator purchased the property, which is bequeathed under the Will, under two registered sale deeds dated 19.08.1967 and 02.09.1970 and registered as document Nos.2670 of 1967 and 3814 of 1970, respectively, on the file of the Sub Registrar Office, Sembium. His wife, Mariammal, predeceased him on 20.03.1993. He had seven daughters, namely, S. Kamatchi, Neelavathi, Adhilakshmi, S.Rajeshwari, A. Shanthi, Ms. Rathi and E. Radha and four sons, namely, Munusamy, Mohan, Elumalai and Raji. One of the daughters, namely, Neelavathi, died and her daughters M. Malathy, V. Gowri, M. Nirmala and sons, M. Nagaraj and M. Babu, were arrayed as Respondents. 7. The learned counsel also submitted as follows. The Testator executed and registered his last Will and Testament on 05.09.1991 as document No.144 of 1991 on the file of the Sub Registrar Office, Anna Nagar, in the presence of two witnesses, namely, Durai and S. Sridharan. The said Durai died on 16.07.1999. No executor was appointed under the Will. The Defendant, who is the eldest son of their father, eloped with another man’s wife and, therefore, no bequest was made to him in the Will. The said Durai died on 16.07.1999. No executor was appointed under the Will. The Defendant, who is the eldest son of their father, eloped with another man’s wife and, therefore, no bequest was made to him in the Will. Because the Plaintiffs are the only beneficiaries under the Will, the Plaintiffs executed a Partition Deed on 22.06.2011 and registered the same as document No.2180 of 2011 on the file of the Sub Registrar Office, Anna Nagar. Under the pretext of attending the funeral of the father, the Defendant trespassed into the property and refused to vacate. Therefore, the first Plaintiff issued a lawyer’s notice dated 05.07.2011 to call upon the Defendant to vacate and surrender the vacant possession of the portion under his occupation. 8. Thereafter, the Defendant filed O.S.No.8243 of 2011 on the file of the IV Assistant City Civil Court, Chennai, claiming partition and other relief. Although the Plaintiffs instructed the erstwhile counsel to contest the suit and institute proceedings for grant of Letters of Administration, the said counsel colluded with the Defendant and failed to contest the suit. Therefore, the suit was decreed. The Appeal Suit was filed with an application to condone delay and the said Appeal Suit was also dismissed. As against the order of dismissal, a Second Appeal has been filed, which is yet to be numbered. With regard to the suit and the appellate proceedings arising out of the suit, the learned counsel submitted that the suit was decreed only on account of the fact that it was not properly contested and because Letters of Administration had not been obtained in respect of the Will. Therefore, this Testamentary Suit may be proceeded with and decided independently without reference to those proceedings. 9. In order to prove the Will, the learned counsel for the Plaintiffs submitted that evidence was adduced through the first Plaintiff, who was examined as PW1. He first adverted to the examination-in-chief of PW1. From the examination-in-chief, he pointed out as to how the original registered Will was exhibited as Ex.P1 and the original Death Certificate of the Testator was exhibited as Ex.P3. The said Death Certificate evidences that the Testator died on 01.03.2010. Therefore, the Testator lived for about 19 years after the execution of the Will. He next referred to the evidence of S.Sridharan, the attesting witness, who was examined as PW2. The said Death Certificate evidences that the Testator died on 01.03.2010. Therefore, the Testator lived for about 19 years after the execution of the Will. He next referred to the evidence of S.Sridharan, the attesting witness, who was examined as PW2. From the proof affidavit of PW2, he pointed out that PW2 stated therein that both he and the other witness, Durai, were present at the residence of the Testator at No.30, Now.No.44, Pachaikkal Veerasamy Street, Chennai-23 on 05.09.1991 and that the Testator executed his last Will and Testament in the presence of Mr.Sridharan and Mr.G.Durai and they signed the Will as attesting witnesses. He also pointed out that Mr.Sridharan deposed that he accompanied the Testator and the other witness to the Office of the Sub Registrar, Anna Nagar on 05.09.1991 and that the Will was registered as document No.144 of 1991 at the Registrar Officer. In fact, the attesting witness also affixed his signature in the Sub Registrar’s Office. 10. The learned counsel, thereafter, referred to the evidence of DW1. In particular, he pointed out that the marking of the certified copy of the plaint in O.S.No.982 of 2019 was objected to on the basis that certified copies of unmarked documents in another suit are inadmissible in the present suit. The next document that he referred to was the notice dated 05.07.2011 (Ex.D24) from the first Plaintiff’s lawyer to the Defendant. By this notice, the Defendant was called upon to vacate the property on the basis that the Will was executed in favour of the Plaintiffs and that the property was bequeathed to the Plaintiffs by the Will. He pointed out that by reply dated 11.07.2011 (Ex.D25), the Defendant’s lawyer stated that the property is an ancestral property and that each of the sons is entitled to the house constructed in the suit property and that the Will is fabricated. 11. With regard to the objections raised by the Defendant with regard to the Will, the learned counsel pointed out that it cannot be said that the Testator was of unsound mind at the time of execution. As a matter of fact, the Testator lived for 19 years after the execution of the Will. 11. With regard to the objections raised by the Defendant with regard to the Will, the learned counsel pointed out that it cannot be said that the Testator was of unsound mind at the time of execution. As a matter of fact, the Testator lived for 19 years after the execution of the Will. With regard to the filing of property tax receipts by the Defendant, the learned counsel submitted that these property tax receipts were removed from the house by the Defendant and that property tax was paid by the Testator and not by the Defendant. By referring to the cross-examination of DW1, the learned counsel pointed out that DW1 admitted, during his cross-examination on 23.10.2019 that he did not file any document to prove that his sons and daughters were born in the suit property. During his cross-examination on 27.09.2019, he also stated that he had proof that he resided in the suit property after his marriage but actually did not file such proof. 12. He pointed out that DW1 stated, during his cross-examination on 23.10.2019, that he was not aware of the Will. He also pointed out that DW1 stated that he did not remember whether he had stated in his cross-examination in O.S.No.8243 of 2011 that he resides outside the suit schedule property. By referring to the aforesaid evidence, the learned counsel for the Plaintiffs concluded his submissions by contending that the Will had been duly proved as per the Indian Succession Certificate 1925 (the Succession Act) and the Indian Evidence Act 1872 (the Evidence Act) and, therefore, the suit may be decreed. 13. On the contrary, the learned counsel for the Defendant submitted that the Defendant is the eldest son of the late M.Govindan. He pointed out that his father died on 01.03.2010 whereas the Original Petition was filed in the year 2017. The delay in filing the petition was not explained either in the petition or in the proof affidavit of PW1. In addition, he pointed out that the exclusion of the Defendant in the Will was not explained. Moreover, the partition suit filed by the Defendant was decreed and the appeal against the order was also dismissed. By referring to the cross-examination of PW1, the learned counsel pointed out that PW1 admitted that the Defendant’s name is not mentioned in the Will. Moreover, the partition suit filed by the Defendant was decreed and the appeal against the order was also dismissed. By referring to the cross-examination of PW1, the learned counsel pointed out that PW1 admitted that the Defendant’s name is not mentioned in the Will. He also pointed out that it is false to state that the Defendant did not reside in the suit schedule property and that PW1 admitted that the places where the Defendant supposedly resided in were not mentioned in the petition or in the proof affidavit. He also pointed out that as to how PW1 admitted that he had not filed any receipts or bills with regard to medical expenses of his father when he was admitted in Apollo Diagnostics Research Centre on 15.05.2009 for treatment. 14. In addition, he pointed out that PW1 admitted that the Partition Deed dated 22.06.2011 does not refer to or state that it is on the basis of the Will, although it was executed after the alleged date of the Will. With reference to the evidence of PW2, the learned counsel pointed out that PW2 admitted, during his cross-examination on 29.08.2019, that he did not remember having stated in paragraph – 3 of the proof affidavit that he had accompanied the Testator and the other witness to the Office of the Sub Registrar at Anna Nagar. He also pointed out that PW2 falsely deposed that the Testator signed the Will both at the residence and in the Office of the Sub Registrar, Anna Nagar. In support of his submissions, the learned counsel relied upon the judgment of the Hon’ble Supreme Court in NIRANJAN UMESHCHANDRA JOSHI v. MRUDULA JYOTI RAO [(2006) 13 SCC 433, wherein, at paragraphs 32 to 34, the Hon’ble Supreme Court examined the question as to the manner of proof of a Will. In particular, the Hon’ble Supreme Court stated that the burden of proof that the Will was validly executed and is a genuine document is on the propounder. The Hon’ble Supreme Court also stated that if the disposition appears to be unnatural or unfair, it is a suspicious circumstance that should be taken into account. With reference to the facts of this case, the learned counsel contended that the exclusion of the eldest son in the Will, without any explanation, is a suspicious circumstance. The Hon’ble Supreme Court also stated that if the disposition appears to be unnatural or unfair, it is a suspicious circumstance that should be taken into account. With reference to the facts of this case, the learned counsel contended that the exclusion of the eldest son in the Will, without any explanation, is a suspicious circumstance. He also relied upon the judgment of this Court in K.R.SENGOTTUVELU AND OTHERS V. KARUPPA NACIKER AND OTHERS, [ 2005 (5) CTC 91 ], for the principle that certified copies of documents can be relied upon even if they have not been marked provided they are referred to in the pleadings. For all these reasons, the learned counsel for the Defendant submitted that the Plaintiffs failed to discharge the burden of proof and, therefore, suit should be dismissed. 15. By way of rejoinder, the learned counsel for the Plaintiffs submitted that none of the sisters of the Plaintiffs and Defendant are supporting the Defendant in challenging the Will. With regard to the Partition Deed, he submitted that there was no reference to the Will on account of the illiteracy and ignorance of the Plaintiffs, who were young at the relevant point of time. In conclusion, the learned counsel reiterated that the Defendant did not pay the property tax and the property bequeathed under the Will is the self-acquired property of the Testator. 16. The oral and written submissions of the learned counsel for the respective parties were considered and the records were examined. 17. Although no specific issue was framed in this regard, the first aspect to be considered is whether the delay in filing O.P. No.270 of 2018 was properly explained. The Testator died on 01.03.2010 but the petition for letters of administration was filed in 2018, which is about 8 years after the death of the Testator and about 7 years after the filing of the partition suit, O.S.No.8243 of 2011. On perusal of the petition, I find that an explanation for the delay is provided in paragraph 7 thereof by stating that the erstwhile counsel was instructed to file proceedings and he prepared the petition but did not file the same. It is also stated that the Plaintiffs were cheated by the earlier counsel, who also failed to contest the partition suit, and that the counsel was changed and this petition was filed. It is also stated that the Plaintiffs were cheated by the earlier counsel, who also failed to contest the partition suit, and that the counsel was changed and this petition was filed. Although this is not a completely convincing explanation, it is clear that an explanation was provided and this should be reckoned. 18. The first issue relating to the validity of the Will is taken up next. The Will is admittedly a registered Will and this raises a presumption, albeit rebuttable, about the proper execution of the Will by the Testator. A perusal of the Will indicates that the Will was attested by two persons, namely, Durai and S.Sridharan. The said attesting witnesses have not only signed as witnesses on the Will, they have also signed before the Sub Registrar, Anna Nagar, as identifying witnesses, on the date of execution when the Will was registered. Out of two attesting witnesses, the admitted position is that one of them, namely, S.Sridharan was examined as PW2. PW2 stated categorically in his proof affidavit that he went to the Testator’s residence at No.30, now No.44, Pachaikkal Veerasamy Street, Chennai-23, on 05.09.1991 and that the Will was executed on that date in his presence and in the presence of the other attesting witness by the Testator. On cross-examination, he stated that the Testator was his landlord and, as a tenant, he was acquainted with the landlord. Although he stated, in his cross-examination, that he did not remember the statement in paragraph 3 of the proof affidavit regarding the visit to the office of the Sub-Registrar, Anna Nagar, with the Testator, on perusal of the Will, I find that he signed as an identifying witness before the Sub-Registrar. He also stated that the Testator was known to him from the year 1985. In this case, it should be borne in mind that the Testator executed and registered the Will on 05.09.1991 and died about 19 years later on 01.03.2010. In the absence of any evidence of mental illness, this is indicative of the fact that the Testator was not infirm or of unsound mind when the Will was executed. Therefore, I conclude that the Plaintiffs adduced sufficient evidence to comply with the formal requirements for proving the Will. Hence, Issue 1 is decided in the Plaintiffs’ favour. In the absence of any evidence of mental illness, this is indicative of the fact that the Testator was not infirm or of unsound mind when the Will was executed. Therefore, I conclude that the Plaintiffs adduced sufficient evidence to comply with the formal requirements for proving the Will. Hence, Issue 1 is decided in the Plaintiffs’ favour. Consequently, in order to decide Issue 2, the question to be considered is: what are the alleged suspicious circumstances surrounding the execution of the Will? 19. The principal contention with regard to suspicious circumstances is that the Defendant, who is admittedly the eldest son of the Testator, has been excluded from the bequest under the Will and that there is no explanation in the Will as to the reasons for the said exclusion. On this issue, the pleadings and evidence of the Plaintiffs is that the Defendant eloped with another man’s wife and that, therefore, he was excluded from the benefits of the Will. 20. By contrast, the Defendant denied this allegation and stated that he continued to and still resides in the property bequeathed under the Will. In support of this submission, the property tax receipts were filed as Exs.D6, D14 and D16. As regards the property tax receipts, the learned counsel for the Plaintiffs contended that property tax was paid by the Testator and not by the Defendant and that the Defendant subsequently removed the property tax receipts from the house. It is pertinent to note that the property tax receipts are for two periods: 1990-91 to 2000-01, i.e. the period when the Testator was alive, and 2006-07 to 2011-12 with an endorsement of payment only in respect of the first half-year of 2007-08. Therefore, these receipts do not prove that such payments were made by the Defendant or that the Defendant resided in the property. From the evidence on record, I find that the marriage certificate of the Defendant (Ex.D1) discloses that the parents were not witnesses at the time of registration of the marriage on 04.12.1981, which is also the date of marriage, and that the witnesses were G.Raman, Manoharan and Mallika, who was examined as DW3. In her cross-examination on 29.11.2019, DW3 stated that she did not know whether the marriage of the Defendant was an arranged or love marriage. In her cross-examination on 29.11.2019, DW3 stated that she did not know whether the marriage of the Defendant was an arranged or love marriage. Thus, there is clear indication that the marriage was not solemnised or registered in the presence of or with the consent of the Testator and his wife. However, there is evidence that the Defendant was not completely estranged from the Testator in the form of the puberty function invitation of the Defendant’s first daughter (Ex.D10), which is issued by the Testator; the wedding invitation of the second Plaintiff (Ex.D11), which mentions the name of the Defendant as one of the brothers; and the voter list issued in 1994, which reflects the name of the Defendant. Nevertheless, these documents do not establish that the Defendant continued to reside in the Testator’s house after his marriage. In addition, it has to be borne in mind that the Testator lived for about 19 years after the date of the execution of the Will. In spite of the above factual position, the Defendant stated in his cross-examination that he was not aware about the Will. This is clearly indicative of the fact that the Defendant was not regularly in touch with the Testator. The second suspicious circumstance that was adverted to by the learned counsel for the Defendant is that the Plaintiffs executed and registered a partition deed much after the date of the alleged execution of the Will but the said document does not refer to the Will. Although this is a relevant fact, it should be viewed in the context of the fact that the partition is between the three principal beneficiaries under the Will and the first Plaintiff issued a lawyer’s notice dated 05.07.2011 (Ex.D24), shortly after the execution of the Partition Deed, stating that the Defendant should vacate the property under his occupation because it was bequeathed to the Plaintiffs under the Will. The third aspect is that the property was not self-acquired and it is an ancestral property. This contention is contradicted by the statements in the Will, including with reference to the manner in which the property was acquired. Therefore, I am not inclined to countenance this contention. However, the exclusion of the Defendant from the benefits of the Will is certainly a circumstance that merits careful consideration. 21. This contention is contradicted by the statements in the Will, including with reference to the manner in which the property was acquired. Therefore, I am not inclined to countenance this contention. However, the exclusion of the Defendant from the benefits of the Will is certainly a circumstance that merits careful consideration. 21. Upon perusal of the Will, I find that there is no reference at all to the Defendant. However, it is stated that the Testator has a wife, Mariammal, and sons, namely, Mohan, Elumalai and Raja, who are staying with the Testator, taking care of him and supporting him. A life estate is created in favour of the wife. The seven daughters are also referred to and it is stated that the marriages of five daughters were performed by the Testator and that necessary arrangements were made for the marriage of the other two daughters. A provision for the payment of Rs.400/- to the seven daughters from the income derived from the property is included. Thus, notwithstanding the fact there is no reference to the Defendant, in the portion of the Will wherein the three Plaintiffs are mentioned, it is also specified that they are staying with the Testator and taking care of him. Therefore, the exclusion of the Defendant is only one of the facts that should be considered along with other facts, namely, that it is a registered Will and that one of the attesting witnesses deposed that it was executed by the Testator in his presence. The said attesting witness stated that he was acquainted with the Testator because he was the Testator’s tenant. It is also notable that both the attesting witnesses accompanied the Testator to the Office of the Sub Registrar Office, Anna Nagar, and, once again, affixed their signatures there. The Testator admittedly lived for 19 years after the Will was executed but the Defendant stated that he was unaware about the Will. He also failed to prove that he resided in the property after his marriage and the Will mentions the three Plaintiffs, including that they were staying with and looking after the Testator. None of the sisters of the Plaintiffs and the Defendant challenged the Will although they were made parties to the petition. He also failed to prove that he resided in the property after his marriage and the Will mentions the three Plaintiffs, including that they were staying with and looking after the Testator. None of the sisters of the Plaintiffs and the Defendant challenged the Will although they were made parties to the petition. Therefore, when viewed in totality, I find that the Plaintiffs have proved the Will in accordance with law and are entitled to the grant of letters of administration. Consequently, the suit is decreed and it is directed that Letters of Administration with the Will annexed should be granted to the Plaintiffs. The Plaintiffs are directed to execute a bond for a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) in the name of the Assistant Registrar (Original Side), High Court of Madras. The Plaintiffs shall also provide a true and fair inventory and also render true accounts of the properties and credits of the estate of the deceased, Govindan, within six months and one year, respectively, from the date of grant. In the facts and circumstances of the case, each party shall bear his own costs.