1 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.01.2011 CORAM THE HONOURABLE MR. JUSTICE S. PALANIVELU T.O.S.No.24 of 2004 1.S. Ramakrishnan Rao 2.S. Gopalakrishna Rao. ... Plaintiffs Vs 1.B. Chandrakantha 2.M. Krishnakumari ... Respondents Testamentary Original Suit filed under Section 232, 255 and 276 of Indian Succession Act, XXXIX of 1925 for the grant of Letters of Administration. For Plaintiffs : Mr. P.K. Sivasubramaniam For Respondents : Mr.P. Raja for M/s. G.V. Srinivasalu [for D3] O R D E R 1. The following are the averments found in the plaint:- 1.(a) The will dated 02.09.1983 is the last will and testament of Dr.S.L. Kantha Rao, which was duly executed by him and the same was registered in Sowcarpet Sub-Registrar's office at Chennai in the presence of witnesses whose name appeared at the foot of the will. The deceased appointed Dr. Muthiyalu in the will, who died on 02.08.2000 without applying for probate of the will. The plaintiffs are sons of the deceased. The parents of the deceased predeceased. https://hcservices.ecourts.gov.in/hcservices/ 2 1.(b) The amount of estates which are likely to come to the petitioners does not exceed in the aggregate the sum of Rs.2,94,840/-. The petitioners hereby undertake to duly administer the property and credits of Dr.S.L.Kantha Rao in any way concerning his will by paying first his debts and then the legacies therein bequeathed so far as the assets will extend and to make full and true inventory thereof and exhibit the same in this Court within six months from the date of grant of the Letters of Administration and also to render this Court a true account of the said property and credits within one year from the said date. 1.(c) The wife of the deceased Dr.S.L. Kantha Rao died on 29.10.2003, by name Sanka Sarasawati. The respondents 1 to 3 are daughters of Dr.S.L. Kantha Rao. Both the parties are Class-I heirs to the deceased Dr.S.L. Kantha Rao. The petitioners have applied for one item of the properties set out in the will as the other properties are not available. 1.(d) There is no next kin or other persons interested to be impleaded. No application has been made to any District Court or to any other High Court for the probate of any will of the said deceased or letters of Administration with or without the will annexed of his properties and credits. Without the order of Letters of Administration, the property cannot be dealt with. The delay in filing in these petitions for Letters of Administration is neither https://hcservices.ecourts.gov.in/hcservices/ 3 wilful nor intentional. Hence, it is prayed that letter of administration to be granted to the petitioners having effect through out the State of Tamil Nadu. 2. In the written statement filed by the third defendant, the following are averred:- 2.(a) The third defendant admits the relationship between the parties but does not admit the statement that the writing annexed and marked with the letter 'A' is the last Will and Testament of Dr. S.L. Kantha Rao and the same was duly executed on 02.09.1983. There was no such will dated 02.09.1983 and equally there was no occasion or need for the deceased Dr.S.L. Kantha Rao to execute any such will as claimed by the plaintiffs. The deceased was affectionate towards all the children viz., the plaintiff's and defendants and keeping all the children without making any differentiation. 2.(b) Deceased Dr.S.L. Kantha Rao till his last breath had been declaring that after his lifetime, all his movable and immovable properties should be shared between his children equally, after the life time of the mother of the parties, and he never whispered anything regarding the alleged will dated 02.09.1983. If the deceased had really executed any such alleged will, he would not have made such a statement that after his life time, all the children should share the movable and immovable properties, equally amongst themselves, after the life time of the mother of the https://hcservices.ecourts.gov.in/hcservices/ 4 parties. 2.(c) There was no reason for Dr.S.L. Kantha Rao to give share in the fixed deposits kept by him and also give larger share to the plaintiffs in such fixed deposits and at the same time bequeath the only immovable property to the plaintiffs. The alleged signatures found in the alleged will are not that of the signatures of Dr.S.L. Kantha Rao and the alleged will is not a true and valid document so as to have the effect of a validly executed will under the provisions of Succession Act and also under the Evidence Act. Even assuming that the alleged signatures found in the will dated 2.9.1983 were that of the signatures of Dr.S.L. Kantha Rao, his signatures should have been forcibly obtained by the second plaintiff, when Dr.S.L. Kantha Rao had been suffering from heart ailment, and as such, the will dated 2.9.1983 even assuming it to be true that the signatures found therein are that of Dr.S.L. Kantha Rao, the said will might have been procured by the second plaintiff, when the deceased was not keeping good health and also was not in good and sound disposing state of mind. Hence, the plaintiffs are not entitled to get any relief in their favour, by the grant of Letters of Administration on the alleged will dated 2.9.1983 and the suit may be dismissed. 3. On the strength of the above said pleadings, the following issues were framed by this Court:- (i) Whether the Will dated https://hcservices.ecourts.gov.in/hcservices/ 5 02.09.1983 of Dr.S.L. Kantha Rao has been executed in sound disposing state of mind in the presence of the attesting witness? (ii) to what relief is the plaintiff is entitled to? Issue No.1 4. One Dr.S.L.Kantha Rao is the father of both the parties. He was practicing as doctor and at the relevant point of time he was Honorary Assistant Surgeon, Government Royapettah Hospital, Madras and Honorary Medical Officer to Arya Vysia Maternity Home, Madras-79. He had executed a registered will on 02.09.1983 bequeathing cash and properties belonging to him to his sons and daughters. He had deposited the following amount in Fixed Deposits as per will, as follows:- Andhra Bank, Madras Rs. 1,00,000.00 Bank of Baroda, Madras Rs. 10,000.00 Muthialpet Benefit Fund, Madras Rs. 10,000.00 Lakshmi Vilas Finance Corpn.,Madras Rs. 5,000.00 Current Account in Andhra Bank, Sowcarpet Branch, Madras Rs. 12,000.00 Shares in Andhra Bank, Madras Rs. 2,000.00 Shares in Gordon and Woodroffe, Madras Rs. 1,000.00 Outstandings from Promissory Notes Rs. 66,000.00 C.D.S.in the State Bank, Mount Road, Madras Rs. 5,000.00 https://hcservices.ecourts.gov.in/hcservices/ 6 Other properties are: Fiat Car bearing with registration No.MSL 7040 worth about Rs. 30,000.00 Immovable property (House) as mentioned in the Will is in old No.179 and New No.65, Govindappa Naicken Street 5. The testator provided in the Will that in the Fixed Deposits and Savings, each of his sons shall take Rs.40,000/- (Rupees forty thousand only) and his three daughters would get Rs.25,000/- (Rupees Twenty five thousand only) and a sum of Rs.45,000/- (Rupees forty five thousand only) shall be taken for his wife and if she desires to dispose, she can do. The above said house shall be taken by his wife with life interest and after her demise his two sons would take equally with all powers of alienation. The testator nominated his son-in-law Dr.Muthiyalu, husband of the second respondent as executor to collect all the amounts mentioned in the will and pay the same to the beneficiaries as stipulated in the will. 6. The defendants namely, the sisters of the plaintiffs opposed the genuineness of the will in their written statement. It has been pleaded that no such will was executed by Dr.S.L. Kantha Rao on 02.9.1983 and there was neither occasion nor need for a will . It is further stated https://hcservices.ecourts.gov.in/hcservices/ 7 therein that Dr. S.L. Kantha Rao was affectionate to all his children and there could be no scope for exclusion of the daughters and that all his immovable and movable properties have to be shared between his children equally after the life time of the mother. 7. In order to prove the execution, genuineness and the physical and mental condition of the testator, the plaintiffs brought P.Ws.1 and 2 to the box, who are attesters to the will in question. Both of them are siblings and octogenarians. In their proof affidavits for chief examination, they have affirmed that both of them went to the residence of Dr.S.L. Kantha Rao, since he called them, that he was having a typewritten will on 02.09.1983 and showed the same to them, made additions in page 4 of the will, put his signature and he requested them to sign as attesting witnesses and they signed as attesters to the will, that the testator was of sound and disposing state of mind and memory and clear understanding, that both of them were asked to come to the registrar's office at Sowcarpet for registration of the will, that they went there, the testator affixed his signature in all pages of the will and both of them also put their signatures, in the last page of the will as attesters at Sub-Registrar's office. Ex.A.1 is the said will. https://hcservices.ecourts.gov.in/hcservices/ 8 8. Worthwhile it is to note that no motive was attributed to them to depose against the defendants. During the cross examination of P.W.1, it was suggested that the second plaintiff was present at the time of execution of the will and presentation of the same at the Sub-Registrar's office, for which he responded that he could not remember. Excepting this, no suggestive questions were put to him as to the mental and physical condition of the testator. 9. It was suggested to P.W.2 that the sons of Dr.S.L. Kantha Rao and the witnesses are more friendly, were known to the witnesses and that they did not see the signatures of Dr.S.L. Kantha Rao for which the answer emerged in negative. P.W.2 has stated that the plaintiffs were not present at the time of the execution of the will and even in the house they did not see the plaintiffs. From the above piece of evidence, it comes to light that the plaintiffs were not at all in the picture at the time of execution and registration of the will. 10. The witnesses were asked that Dr. S.L. Kantha Rao was suffering from heart ailment. But P.Ws.1 and 2 would answer that at the time of execution and registration of the will he was hale and healthy. P.W.1 has deposed that he does not think that he had any heart problem. P.W.2 would say that the testator was quite healthy and he had not seen https://hcservices.ecourts.gov.in/hcservices/ 9 him in the hospital. P.W.2 has further stated that when both the witnesses went to the house of testator, he was alone in his bed room. 11. The circumstances as transpired from the oral evidence of both the attesters would go a long way to show that Dr.S.L. Kantha Rao had executed the will on 2.9.1983 in a sound and disposing state of mind and presented it for registration. The execution, attestation and due registration have been proved in accordance with law, that it is true, valid, genuine and binding. This Court could not infer any suspicious circumstance surrounding the execution of the will. I answer this issue in affirmative. Issue No.2 12. From the above evidence both oral and documentary the plaintiffs have proved their claim and they are entitled to the relief as prayed for in this testamentary original suit. Accordingly the Testamentary Original Suit is decreed as prayed for and the Letters of Administration is ordered to be issued in favour of the plaintiffs herein. No costs. 13. The plaintiffs are directed to take inventory of the assets of the deceased Dr.S.L. Kantha Rao within six months from today and are also directed to render true and due accounts of the properties and credits within one year https://hcservices.ecourts.gov.in/hcservices/ 10 from today. 14. The plaintiffs are directed to execute a personal bond for a sum of Rs.25,000/- (Rupees twenty five thousand only) in favour of Assistant Registrar (O.S.), High Court, Madras-104. sd/.S.P.V.J 25.01.2011 //Certified to be a true copy// Dated this the day of 2014. R.s/23.04.2014 COURT OFFICER From 25.09.2008 the Registry is issuing certified copies of the Order/Judgment Decree in this format. https://hcservices.ecourts.gov.in/hcservices/