IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10-07-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE R.SUBBIAH O.S.A.No.308 of 2004 1.Janaki Vasudevan 2.V.Srinivasan .. Appellants vs 1.Vasantha Srinivasan 2.Rama Srinivasan .. Respondents Original side appeal preferred under Order XXXVI Rule 11 of O.S. Rules read with Clause 15 of Letters Patent against the Judgment and decree dated 12.5.2004 passed in T.O.S.No.33 of 1997 (O.P.298/97) For Appellants : Mrs.Hema Sampath Senior Counsel for Mr.R.Subramanian For Respondent No.1 : Mr.K.P.Gopalakrishnan For Respondent No.2 : Mr.R.Ravindran JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the Judgment of the learned Single Judge passed in TOS.No.33 of 1997 whereby probate was ordered to be issued. The first respondent/plaintiff filed a Original Petition in O.P.No.298 of 1997 which was subsequently converted into TOS.No.33 of 1997 seeking grant of probate with the following averments: 2. The petitioner/plaintiff is the daughter of Sri K.Vasudevan and the first defendant Janaki Vasudevan. The said Vasudevan died on 22.5.1985 leaving behind him the first defendant wife, second defendant Son, third defendant and the plaintiff, who were the daughters. He was the absolute owner of an immovable property bearing Door No.5, 4th Street, Gopalapuram, Madras-86. He executed the last will and testament on 8th January 1983 whereby he made a bequest of the said immovable property in favour of all the four legal heirs equally. The said Will was attested by two witnesses as found in the document and that was his last will and it has to be probated. Hence, there were exchange of notices and https://hcservices.ecourts.gov.in/hcservices/ thereafter the plaintiff filed proceedings before the Court seeking to allow her to prove the Will and to grant probate in her favour. The suit was resisted by the first defendant inter alia stating that the suit was to be dismissed for the reason that the first defendant, the wife of said Vasudevan, was all along living and staying with her husband. He never executed any Will. The will is a rank forgery. It was brought about by the plaintiff and the third defendant. They used to visit the house frequently. Both of them are financially affluent. There was no occasion or reason for the said Vasudevan to execute the will. In order to make an unlawful claim, the plaintiff and the third respondent have fabricated the same. Hence, it was not a fit case for grant of letters of administration and the suit was to be dismissed. 3. On the above pleadings, three issues were framed. The parties went to trial. On the side of the plaintiff, the pro- founder was examined as PW1 and also one of the attesting witness was examined as PW2 and on the side of the defendants, first defendant was examined as DW1 and the second defendant was examined as DW2. On consideration of the submissions made and on scrutiny of materials available, the learned Single Judge took the view that the Will on the strength of which the relief was sought for was a genuine and valid one and hence, the reliefs were to be granted. Under such circumstances, the original side appeal has been brought forth by defendants 1 & 2. 4. The Court heard the learned counsel on either side. 5. Advancing arguments on behalf of the appellants, learned counsel would submit that from the evidence adduced before the learned Single Judge, it was quite clear that the first defendant-wife was all along with Vasudevan and she was never absent leaving him and a written statement has also been filed to that effect. Apart from that it is an admitted fact that the plaintiff and the third defendant daughter were financially affluent and under such circumstances, there were no compelling reason for the said Vasudevan to execute any Will. There was no property except the property in question. Hence, it was a will, which was a fabricated one and created by the plaintiff and the third defendant. Added further, the will is not a registered one. Except, P.W.2, who was one of the attesting witnesses and who was the neighbour, the other attesting witness was not examined. As per the evidence of P.W.2, it could be seen when Vasudevan was taking treatment, as he had undergone an operation, he had executed the Will. Under such circumstances, the learned Single Judge ought to have held that the Will was not validly executed and attested. Insofar as pages 8 and 9 of the judgment are concerned, the learned Single Judge held that the title over the property and to what extent the will could be executed are all matters, which could not be decided by the Court of testamentary jurisdiction and hence, that part of the judgment has got to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 6. A memo is filed by the learned counsel for the appellants to the effect that the 1st appellant, who is the 1st defendant in the suit, viz., Janaki Vasudevan, died on 16.01.2006. The said memo is recorded. 7. Heard the learned counsel for the respondents on the above contentions. 8. It is not in controversy that the property in question, which is the subject matter of the will, exclusively belonged to Vasudevan, the husband of the first defendant. The case of the plaintiff as could be seen was that Vasudevan has executed the unregistered will on 8th January 1983, which is marked as Ex.P.1. It is true that it is an unregistered will. The law does not require that any Will must be registered. Further, in the instant case, out of the two attesting witnesses, one of the attesting witnesses, who was examined as PW2, has categorically deposed to the effect that at the time of execution of the will, he himself and the other attesting witness were present, when the testator signed the document and they also attested the Will at that time. At this juncture it is to be pointed out that no reason or circumstance has been brought forth for disbelieving the evidence of PW2. Further, it is an admitted position that P.W.2 is a neighbour of Vasudevan's family during the relevant period. Further the contention of the appellant before the learned Single Judge and equally here also is that at the top of the document, Ex.P-1, no date is mentioned. It is true that no date is mentioned at the top of the document. Not only the testator, but also both the attesting witnesses have put the date as 8th January 1987 at the end of the document. This Court is unable to notice any circumstance which could be termed as a suspicious circumstance. Hence, marshaling the evidence properly, the learned Single Judge has come to the conclusion that the Will is proved as one expected in law as true, genuine and as such, declared so. The Court is unable to see any reason to dispute that part of the judgment. As rightly pointed out by the learned counsel for the appellant, the learned Single Judge has considered the issue as to the title of the property and to what extent the said Vasudevan could make the bequest. It is needless to say that the testamentary court is not called upon to answer the question as to the title over the property under the testament. This Court had the testamentary jurisdiction as to the truth, validity and genuineness of document in question and nothing more. In the instant case, the learned Judge was called upon to look into the truth, genuineness and validity of Ex.P.1 Will and nothing more. Insofar as the other question as to the title and to what extent the said Vasudevan can execute the will, are all questions outside the scope and jurisdiction of the testamentary court. Under such circumstances, https://hcservices.ecourts.gov.in/hcservices/ that part of the judgment, in the opinion of the Court, is thoroughly irrelevant and hence, the findings of the learned Single Judge that the Will is true, valid and genuine, has got to be sustained. Accordingly, the original side appeal is dismissed. VJY Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To The Sub Assistant Registrar, Original Side, High Court, Madras. 1 cc to Mr.K.P.Gopalakrishnan, Advocate, SR.38492 1 cc to Mr.R.Subramanian, Advocate, SR.36360 mg (co) dv/29.7. OSA No.308 of 2004 https://hcservices.ecourts.gov.in/hcservices/