IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 18.10.2011 Coram THE HONOURABLE MRS.JUSTICE R. BANUMATHI AND THE HONOURABLE MS.JUSTICE R. MALA O.S.A.No.287 of 2011 1.Prema 2.Vijayalakshmi 3.Chitra 4.Satheesh .. Appellants PRAYER: Appeal filed under Order XXXVI and Rule 1 of Original Side Rules, read with Section 15 of Letters Patent Act against the order dated 02.08.2010 passed in O.P.No.775 of 2008 by this Court. For Appellants : Mr.Asif Ali for Mr. V.Solai Malai J U D G M E N T R.MALA,J. This Original Side Appeal has been preferred against the fair and decreetal order passed in O.P.No.775 of 2008 on 02.08.2010. 2.The learned counsel for the appellants would submit that the appellants herein had filed O.P.No.775 of 2008 stating that the testator Sadhu Kenghaiah Swamy had executed the last Will and Testament dated 08.12.1993 and he died on 03.04.1994. Universal Legatee is one Nayagam, who died on 20.10.2007. The legal heirs of the said Nayagam are the petitioners herein, who filed the petition in O.P.No.775 of 2008 for issuance of Letters of Administration. There was no caveator. So P.W.1 and P.W.2 were examined and Exhibits P1 to P8 were marked. The legal heir certificate of the deceased Nayagam was not filed. When the matter was posted for further evidence and for production of original legal heir certificate, the counsel therein reported no instruction. Therefore, the learned single Judge on considering the oral evidence of P.W.1 and P.W.2 and the documentary evidence, dismissed the petition. Hence, the appellants herein had filed an application in A.No.5340 of 2010 for restoring O.P.No.775 of 2008. The learned single Judge dismissed the application in A.No.5340 of 2010 on the ground that the probate O.P.No.775 of 2008 has been dismissed on merits and it was not dismissed for default. Hence, he has come forward with this appeal against the fair and decreetal order passed in O.P.No.775 of 2008. 3.The learned counsel appearing for the appellants would submit that the appellants have given a reason in para-16 of the petition for delay in filing Letters of Administration, since the universal Legatee was not being well, they are not in a position to file the https://hcservices.ecourts.gov.in/hcservices/ same. He further submitted that now the appellants got the legal heir certificate. Hence, he prayed for setting aside the order in O.P.No.775 of 2008. To substantiate his argument, he relied upon the decision reported in 2005-1-LW-455 (Janaki Devi v. R.Vasanthi and 6 others) and submitted that the delay in filing the petition for production of Letters of Administration is not a factor to cause doubt as if the Will was fabricated. 4.Heard the learned counsel for the appellants. 5.The learned counsel for the appellants would submit that the delay in filing Letters of Administration has been properly explained. In Para-16 of the petition in O.P.No.775 of 2008, it is stated as follows: "16.That the Petitioners submit that the petition for grant of Letters of Administration in respect of the Will herein has been filed after long time, since the universal Legatee P.Nayagam was ailing for years and there was much delay in obtaining legal heir certificate in favour of Petitioners. Hence, there is delay in filing the Petition for the grant of Letters of Administration with the Certified Copy of the Will annexed." 6.At this juncture, it is appropriate to consider Order XXV Rule 9 of the Original Side and Appellate Side Rules, which is extracted hereunder: "In any case where probate or letters of administration is for first time applied for after the lapse of three years from the death of the deceased, the reason for the delay shall be explained in the petition." 7.The petition in O.P.No.775 of 2008 was filed for issuance of Letters of Administration on the basis of the Will alleged to be executed by Sadhu Kenghaiah Swamy. But, admittedly, during the life time of universal Legatee Nayagam, who died on 20.10.2007 had not taken any steps from 03.04.1994 to 20.10.2007. After his death, probate petition has been filed on 09.09.2008. So the reason for delay in filing the probate given by the appellants/petitioners is not convincing. Hence, we are of the opinion that the delay has not been properly explained. So the decision relied upon by the learned counsel for the appellants reported in 2005-1-LW-455 (Janaki Devi v. R.Vasanthi and 6 others) is not applicable to the facts of the present case. The delay can be condoned if the Will has been proved in accordance with law. Now the Court has to decide whether the Will has been proved in accordance with law. 8.Now it is appropriate to consider the another decision relied upon by the learned counsel for the appellants reported in 2000-1- L.W.537 (R.Vasanthi v. Janaki Devi and others), in which, it was held as follows: "These two decisions based on section 69 would go to show that in the circumstances, when both the attesting witnesses could not be examined, the signature of any one of the attesting witnesses in his https://hcservices.ecourts.gov.in/hcservices/ handwriting can be proved through a witness who knows the signature of the said attesting witnesses. The plaintiff as P.W.1 has clearly stated that she knows the signature of both attesting witnesses and identified their signature as she was present at the time of attestation of Ex.P.1 and as such the proof required under law has been satisfied by the plaintiff. One of the reasons which can be taken in favour of the plaintiff is that the Will has been registered on the same day by the Sub-Registrar, T.Nagar and the attestors of Ex.P.1 stood as identifying witnesses before the Sub-Registrar for the purpose of registration. However, the mere registration of the Will itself cannot prove its genuineness and other circumstances should also go in favour of the genuineness." The attestation to be proved in accordance with law as per Sections 68 of Indian Evidence Act and Section 63 of Indian Succession Act. 9.The learned counsel for the appellants would submit that P.W.2 was examined to prove the Will. Since the attesters of the Will were not available, the person who was well acquainted with the signatures of the testator has been examined as P.W.2 and that factum has not been considered by the learned single Judge. Hence, he prayed for allowing the appeal. 10.As per the decision relied upon by the learned counsel for the appellants reported in 2000-1-L.W.537 (cited supra), which was confirmed by the Division Bench in O.S.A.No.224 of 1999, reported in 2005-1-LW-455 (cited supra), if no attesters are available to prove the Will, they have to prove the Will in accordance with Section 69 of Indian Evidence Act. But, admittedly, one Satheesh was examined as P.W.2 and in his proof affidavit, which was filed on 12.04.2010, his age has been mentioned as 21. When he was examined before this Court, he stated that his age is 27 years. The alleged Will has been executed on 08.12.1993. At the time of his examination, he was 27 years old. So he must be 10 years old at the time of execution of Will. At the time of execution of Ex.P2-Will, the testator was aged about 93 years and P.W.2 was aged about 10 years. So it is unbelievable that P.W.2 was present and at the age of 10 years, P.W.2 came to be acquainted with the signatures of the testator and other attesters at the time of execution of Will. So there is no evidence to show that the testator Sadhu Kenghaiah Swamy was executed the Will under Ex.P2, while he was in sound disposing state of mind out of his free Will. So the learned single Judge in para-7 and 8 of his judgment had considered this aspect in a proper perspective and came to the conclusion that the attestation has not been proved and the evidence of P.W.2 would not be sufficient to prove the attestation. Hence, We concur with the findings of the learned single Judge that the attestation has not been proved in accordance with Section 69 of Indian Evidence Act. 11.One more adding circumstance is that during the life time of alleged universal legatee Nayagam, he had not taken any steps. The https://hcservices.ecourts.gov.in/hcservices/ Will has seen the light of the day only on 09.09.2008. The petition for issuance of Letters of Administration has been filed only along with the certified copy of the Will. The original Will was also not produced before this Court and no reason has been assigned. So the learned single Judge had considered all the aspects in a proper perspective and came to the correct conclusion that Ex.P2-Will has not been proved in accordance with law, as the Will is a true and genuine document. Hence, we do not find any reason warranting interference with the order passed by the learned single Judge. Hence, We are inclined to concur with the findings of the learned single Judge. Therefore, the appeal deserves to be dismissed. 12.In the result, the Original Side Appeal is dismissed. No costs. 13.Before we part with the matter, certain directions for administration of property need to be issued. The testator had an intention while bequeathing the property to the universal Legatee Nayagam, he specifically stated that he ought to do the pujas and other service to the Ashramam. But admittedly, during the lifetime of the said Nayagam, he had not taken any steps to probate the Will. The testator bequeathed vast extent of immovable properties, which has been mentioned in the Will. The properties will have to be administered as per the wishes of the testator. So we deem it appropriate to direct the Administrator-General and Official Trustee of Tamil Nadu, Chennai, to look into the matter and find out whether the properties mentioned in the Will are available with the Mutt and file a report before the Hon'ble Portfolio Judge for A.G.&O.T. and administer the properties subject to the orders of the Hon'ble Portfolio Judge and execute the intention of the testator to do poojas and other service to the Ashramam. kj Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To The Sub Assistant Registrar, Original Side, High Court, Madras. MG(CO) SR/31.10.2011 Judgment in O.S.A.No.287 of 2011 https://hcservices.ecourts.gov.in/hcservices/