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2023 DIGILAW 1813 (MAD)

Jeevanandam v. G. Babu Rao(deceased)

2023-04-27

R.N.MANJULA

body2023
JUDGMENT (Prayer: Testamentary Original Suit filed filed under Sections 222 and 276 of the Indian Succession Act, XXXIX of 1925, prayed that for granting of Probate.) 1. This Testamentary Original suit is filed by the adopted son of the testatrix for the grant of Probate. 2. The averments of the Plaint in brief: The defendants 3 to 6 are the wife and three daughters of the deceased 1st defendant and they are the grand children of the sister of the testatrix. The husband of the testatrix pre-deceased her. 2.1. The property belongs to one Parvathi Bai who is the testatrix herein. Parvathi Bai had executed her last registered Will and testament in respect of the property on 04.08.1988. Parvathi Bai died on 07.05.1989. The property is a self acquired property of the said Parvathi Bai. In the said Will, the testatrix appointed the plaintiff as the executor of the Will and hence, he is entitled to apply for the Probate of the Will. The 2nd defendant admits the execution of the Will and its contents. Original Will is furnished by the 2nd defendant in the Court and the attesting witness Thulasidass identified the said Will. The second defendant sails along with the plaintiff. The defendants 3 to 6 are the legal heirs of the deceased 1st defendant and they did not file any separate written statement. However the first defendant had filed his written statement while he was alive. 3. The Written statement of the first defendant in brief: The 1st defendant filed a written statement by stating that the Will is not a valid one and he denies the execution of the Will. So the 1st defendant filed an Application in A.No.2465 of 2004 to recall the Original Petition in O.P.No.592 of 1990 filed by the plaintiff under Section 222 of the Indian Succession Act XXXIX of 1925 and the same was restored and subsequently transferred as T.O.S.No.14 of 2016. 3.1. The suit property comprises of ground floor, first floor and an outhouse. The plaintiff claims to be the adopted son of the deceased. As per the Will, the first floor of the building was bequeathed in favour of the plaintiff. The ground floor consists of two portions and out of which each defendants is given with a portion. 3.1. The suit property comprises of ground floor, first floor and an outhouse. The plaintiff claims to be the adopted son of the deceased. As per the Will, the first floor of the building was bequeathed in favour of the plaintiff. The ground floor consists of two portions and out of which each defendants is given with a portion. The out-house is bequeathed to the person who would light the funeral pyre of the testatrix and the respective portion has been given with the right of way. 3.2. The plaintiff had originally filed Original Petition in O.P.No.592 of 1990 in respect of the Will and the same was allowed on 13.02.1990 and after coming to know this, the 1st defendant filed an Application in A.No.2465 of 2004 in order to revoke the same and the same was recalled and the Original Petition was restored and subsequently transferred as Testamentary Original Suit in TOS.14 of 2016; the 1st defendant had taken over the possession of the property and he is in the enjoyment of the same; the plaintiff has filed a suit in OS.No.3423 of 2004 for partition on the basis of the Will and the same was dismissed; in the partition deed, he has stated that the plaintiff is entitled to 2/3rd share and the defendants are entitled of 1/6th share each; but no where in the Will, the said share is mentioned as stated by the plaintiff; the Will is without any schedule of property and hence, it is invalid; the plaintiff has marked the Certified copy of the Will and not the original one. 4. The Written statement of the second defendant in brief: The second defendant filed a written statement by stating that it is true that the suit property belonged to the testatrix and she executed a Will dated 04.08.1988 in the presence of witnesses Thulasidass and Mahalingam. 5. Upon considering the pleadings, the following issues are framed for trial in the suit: 1. Whether the Will dated 07.05.1987 executed by V.Parvathi Bai Ammal is true and genuine? 2.To what other reliefs, if any, the parties are entitled?” 6. During the course of the trial, on the side of the plaintiff, two witnesses were examined as PW.1 & P.W.2 and six documents were marked as Ex.P1 to P6. Whether the Will dated 07.05.1987 executed by V.Parvathi Bai Ammal is true and genuine? 2.To what other reliefs, if any, the parties are entitled?” 6. During the course of the trial, on the side of the plaintiff, two witnesses were examined as PW.1 & P.W.2 and six documents were marked as Ex.P1 to P6. On the side of the defendant two witnesses have been examined as DW.1 & D.W.2 and no document were marked. 7. The learned counsel for the plaintiff submitted that even before filing the Original Petition, the plaintiff informed the second defendant through letter dated 19.06.1989 about the Will and he requested the second defendant to hand over the impugned Will; the second defendant sent a letter/reply notice dated 13.02.1990 that she is willing to deposit the original Will in Court and thereafter, the plaintiff''s advocates sent a letter dated 10.04.1990 by informing the counsel for defendants about the Probate petition being filed and requested them for lodging the original Will into the Court. Thus, the second defendant has duly lodged the original Will and one of the attesting witness Thulasidass identified the Will; the second defendant does not have any objection for probating the Will and she is also one of the beneficiaries under the Will; the plaintiff is the adopted son of the deceased and treated like her child from his childhood; the 2nd defendant accepted the terms of the Will and had taken her respective share; as per the Will, the out-house was given to the person who would light the funeral pyre and the plaintiff is the one who lighted the funeral pyre and hence, he is entitled to get the out-house portion; the objections or the intentions of the 1st defendant is not bona fide but his interest is only to drag the litigation and hence the suit should be decreed. 8. 8. The learned counsel for the defendants submitted that the defendants 3 to 6 are the wife and three daughters of the deceased 1st defendant; the property description in the Will is not correct; there is no mention about the relationship about the plaintiff and Parvathi Bai in the Will; PW.2 attesting witness has spoken more than the contents in the Will; another attesting witness was not examined; one of the suspicious circumstance is leaving the person who should set funeral pyre for Parvathi Bai, despite the plaintiff claimed to be the adopted son of her; the husband''s brothers and sisters of Parvathi Bai were also attended the funeral ceremony and they were not made as parties to the suit; when the deceased did not have a class I legal heirs, the plaintiff ought to have added the legal heirs of her brothers and sisters. 9. The fact that the suit property belonged to the deceased testatrix V.Parvathi Bai is not denied. The deceased Parvathi Bai had no issues and her husband predeceased. The plaintiff claims to be the adopted son of the deceased Parvathi Bai who brought him up from his childhood. The Will has been attested by two attestors by name Thulasidass and one Mahalingam. 10. One of the attesting witness by name Thulasidass has been examined as PW.2 and he has stated about the way in which the Will was executed by late Parvathi Bai and he attested as the first witness and one Mahalingam has attested it as the second witness. PW.2 has stated that Parvathi Bai was hale and healthy and she was in a sound state of mind at the time of the execution of the Will. PW.2 has stated how he went along with the other attesting witnesses and Parvathi Bai to the Sub Registrar office for registering the Will. PW.2 identified his signature and the signature of other witness. He has stated that the testatrix has signed the Will in English and she has also affixed her thumb impression while registering the Will. 11. The second defendant who is the sister of the first defendant has stated that the plaintiff grew up with the testatrix from his childhood since she did not have any children of her own. The cross examination of PW.2 did not bring out anything adverse to his chief examination. 11. The second defendant who is the sister of the first defendant has stated that the plaintiff grew up with the testatrix from his childhood since she did not have any children of her own. The cross examination of PW.2 did not bring out anything adverse to his chief examination. There is nothing on record to create suspicion over the execution of the Will. 12. During the cross examination, PW.2, he has stated about his presence as the attestor. He has asserted that the contents of the Will was appraised to him before he had signed it as a witness. He has further stated that the family of Parvathi Bai is known to him as his family friends. PW.2 knew about the fact that Parvathi Bai was working as a teacher. PW.2 was able to tell the date during which the Will was executed and the date during which the deceased died. He also stated about the manner in which the Will was registered and his presence at the Sub Registrar Office and that he had identified the signature of the testatrix also at the time of registering the Will. He has stated that the Will itself was prepared by the second defendant''s advocate who had discussed the contents of the Will with the deceased and further stated that during that time, the other attesting witness Mahalingam was also present. So the cross examination of PW.2 had only added more strength to his chief examination. 13. The 1st defendant who was examined as DW.1 also admitted during cross examination about the execution of the Will and about the state of mind of the testatrix. The question and answer put to DW.1 that effect during his cross examination is extracted as below: “Q:I put it to you that the Will was duly executed by the deceased Parvathi Bai in the presence of witnesses. A:Yes Q.I put it to you that the contents of the Will were duly known to the deceased Parvathi Bai and she put the signature only after understanding the contents of the same. A: Yes.” So the answers of DW.1 would show that the 1st defendant was also aware of the Will. 14. During the cross examination, he has stated that the testatrix was taken and the Will was prepared by the Counsel of 2nd defendant Kabir. A: Yes.” So the answers of DW.1 would show that the 1st defendant was also aware of the Will. 14. During the cross examination, he has stated that the testatrix was taken and the Will was prepared by the Counsel of 2nd defendant Kabir. The deceased Parvathi Bai also informed him that she would execute a Will as per the draft prepared by the Counsel of 2nd defendant. He also admitted that the deceased along with 2nd defendant and the witnesses went to the registration office and registered the Will. 15. It was the 1st defendant who got the registered Will from the Sub Registrar office and handed over it to the second defendant. He was aware of the lodging of the original Will into the Court. So the combined reading of the evidence of DW.1 and the written statement of D.W.2 would show that the Will has been duly executed by the testatrix after being fully aware of its contents and she executed the Will in a sound state of mind. The evidence of DW.2 makes it clear that it is the plaintiff who had lighted the funeral pyre as per the terms of the Will and the out-house portion is to be allotted to the plaintiff as per the terms of the Will. 16. It is true that the suit filed by the plaintiff in OS.No.3423 of 2004 was dismissed. But the reason for dismissal is the pendency of the petition filed by the first defendant to revoke the earlier order of passing for probate. Now the Will had been executed in a manner known to law and it has been proved in accordance with Sec.68 of the Indian Evidence Act,1872 by examination of one of the attesting witnesses. No suspicion is shrouded upon the Will. Thus the issues 1 and 2 are answered in favour of the plaintiff. In the result, the suit in T.O.S.No.14 of 2016 is decreed by granting a probate of the last Will and Testament dated 04.08.1988 of late V.Parvathi Bai, the testatrix to the plaintiff to have effect limited to the State of Tamil Nadu. The plaintiff shall also provide a true and fair inventory and render true and fair accounts of the properties and credits of the estate of the testatrix within six months and one year, respectively, from the date of decree. There will be no order as to costs.