Testamentary suit for letters of administration with a certified copy of a lost registered Will. The court found suspicious circumstances—illiterate testator's signature on the Will, wrong description of heirs, unexplained loss of the original—and held the Will unproved.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.12.2024
CORAM:
THE HON`BLE MR.JUSTICE A.A.NAKKIRAN
TOS.No.19 of 2021 in (OP.No.970 of 2019)
M. Sunder ... Plaintiff
..Vs...
1.M. Panneer Selvam 2. V. Pushpalatha 3. G. Kalai Selvi ... Defendants
Prayer: Testamentary Original Suit filed under Sections 232 and 276 of the Indian Succession Act XXXIX of 1925 for the grant of Letters of Administration. As per order of this court dated 23.11.2020 in O.P.No.970 of 2019, the Original Petition has been converted into Testamentary Original Suit No.19 of 2021.
For Plaintiff : M/s.A.Kulandai Velu For Defendants : Mr.Arasaprabu
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J U D G M E N T
The Testamentary Original Suit is filed for issuance of letters of Administration with the will annexed to be granted to him as the grandson/beneficiary of the deceased having effect throughout the State of Tamilnadu.
a) The plaintiff's grandfather M.Masilamani has not appointed any
Executor in the said Will to execute the Will dated 21.07.1995 and the
plaintiff himself is the only beneficiary. The Will of M.Masilamani has bequeathed to his wife Mrs.Rajeswari the right of enjoyment of the property till her life time. After the life time of his wife, the properties will devolve only to the legitimate issues of his two sons. It can be enjoyed by those issues only when those issues had completed 21 years of age and until then it has to be maintained by the testator's two sons. His wife died on 28.01.2017 and Manoharan died on 08.09.2013 and the surviving legal heirs of Manoharan were his wife and the petitioner and all the legal heirs 2/15
are made party in the petition. The second respondent has no issues and the petitioner became the only son of the elder son.
b) The amount of assets which are likely to come into petitioner's hands does not exceed in the aggregate sum of Rs.61,47,920/-. The subject registered Will was actually misplaced by the petitioner and the same could not be found. He further stated that he filed a complaint on loss of Will deed on 04.07.2018 with complaint ID: CAM1852996 and as the Will deed could not be traced, Non-traceable Certificate was obtained with C.No.133 dated 30.07.2018. Therefore, the certified copy No.CCA/Mylapore/1765/2018 has to be considered in place of the Original. Thus, he prays to allow this suit for the above stated reliefs.
a) The alleged Will dated 21.07.1995 is a concocted document. It is
unconscionable for the Will to have been executed 20 years before his demise. The Will states that the Testator fathered two sons and three daughters when in reality, the Testator had only two daughters. Further,
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Mr.Kalr Marc, one of the attesting witnesses to the Will attested that the Testator was of sound mind at the time of executing the Will.
b) It must be understood that mere registration of a Will is not
sufficient proof of its genuineness especially when there are plethora of suspicious circumstances surrounding its alleged execution. The plaintiff does not state as to how he obtained knowledge of the Will or how he took possession of the original or a copy thereof, when the alleged Will escaped the eyes of the all the other family members for more than 21 years. Moreover, the plaintiff has not spelt out the manner in which the original was lost. The only intention of the plaintiff and his mother is to deprive defendants of their legitimate right to the property. Hence, they pray for dismissal of the suit with exemplary cost.
1.“Whether the Will dated 21.07.1995 said to have been executed by Late Masilamani is genuine?
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5.On the side of the Plaintiff, Ex.P1 to Ex.P11 were marked
and PW.1 to P.W.3 were examined. On the side of the Defendants, no
Documents were marked nor any evidence was examined.
6.Heard both sides and perused the materials available on record. Issue No.1:
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testator, his wife Mrs. Rajeswari enjoyed the property till her demise. Therein, the Will to be devolved upon the legitimate issues of testator's sons by completing 21 years of age. The 1st Defendant has no issues and the Plaintiff is the only son of Mr.Manoharan, thus becoming the sole beneficiary of the Will dated 21.07.1995. The original Will has been misplaced by the Plaintiff and filed a complaint on loss of Will and a nontraceable certificate has been issued by the concerned police authority. The Plaintiff had obtained a certified copy of the Will from Sub-Registrar Office, Mylapore on 31.08.2018.
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maintainable and can be decreed based on the certified copy of the Will. In support of his arguments, he relied on the Judgments (i) Vijender Singh v. State and Others - 2024 SCC OnLine Del 729 (ii) C.G. Raveendran Vs. C.G. Gopi 2015 SCC OnLine Ker 19439 (iii) Sahil Marwah and Another v. Vikas Malhotra and Others 2024 SCC OnLine Del 3348, (iv) Shakuntala Devi v. Savitri Devi and Others 1996 SCC OnLine HP 12 (v) Bharat Bhushan Sisodia v. State & Ors 2008 SCC OnLine Del 1272 and (vi) Meena Pradhan and Others v. Kamla Pradhan and Another (2023) 9 Supreme Court Cases 734. Thus, he prays the relief as prayed for.
12.The learned counsel for the defendants submits that the plaintiff admits during the cross-examination, that the testator was affectionate towards all his children and his intention was to ensure he kept all his children happy. Further, he specifically admits that the testator had only 2 sons and 2 daughters, and the suit property was apportioned into 7 portions and his sons were to take 2 shares each and his daughters were to take a share each. When questioned about the educational background of the testator, the plaintiff categorically admits that the testator was illiterate.
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13.It has been further submitted that it is the settled position of
law that the Will should be ordinarily free from suspicious circumstances. Where suspicious circumstances are brought on record, the Court can take presumptive evidence. In the present case, admittedly, the testator is an illiterate and only affixes his thumb impression. However, the alleged Will contains his signature. The plaintiff has produced no documents whatsoever to prove that it is the signature of the testator himself. Further, the stamp paper on which the certified copy of Will i.e. Ex.P9 was purchased in the name of the mother of the plaintiff. The contents of the Will states that the testator had 2 sons and 3 daughters, which is wrong. The Will does not disclose who the scribe is. It is trite law that execution of a Will must be
held to have been proved to be ordinarily free from suspicious circumstances. In support of his arguments, he relied upon the Judgments, (i) S.R. Srinivasa v. S. Padmavathamma, (2010) 5 SCC 274), (ii) K.Laxmanan v. Thekkayil Padmini, (2009) 1 SCC 354, (iii) Shivakumar v. Sharanabasappa, (2021) 11 SCC 277, and (iv) H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426. Hence, as the Will is concocted one, the present suit is liable to be dismissed.
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14.On perusal of the records, it is seen that the suit property
was purchased by Late Masilamani by virtue of Sale Deed dated 23.10.1982 in Document No.1418 of 1982 vide Ex.P1 Further, the said Masilamani is alleged to have executed the Will dated 21.07.1995 registered as Document No.92 of 1995 in the SRO, Mylapore, vide Ex.P9 in favour of his Wife ie Rajeswari only for enjoyment of the suit property till her life time. After her life time, the enjoyment of the suit property shall go to their two sons ie. Plaintiff's father and the 1st defendant. Thereafter, the children of two sons will become the absolute owner of the suit property after attaining the age of 21 years.
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Ex.P6. The plaintiff has stated that the Original Will had been lost. In this regard, he made a online complaint before the concerned Police Authority on 04.07.2018 vide Ex.P7 and the Police Authority could not trace the Will Document and gave Non-Traceable Certificate to the plaintiff on 24.07.2018 vide Ex.P8. Further, the plaintiff obtained a certified copy of the said Will from the concerned SRO. Vide Ex.P9.
17.Further, even though it is averred that the Original Will dated 21.07.1995 had been lost and made a complaint over it, in the pleading also, there is no whisper about when and where, it has been misplaced. Further, the plaintiff has not whispered anything about whether paper publication has been effected in this regard or not.
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two sons and three daughters. However, as per legal heir certificate vide Ex.P5 and Ex.P6, the Testator had only two sons and two daughters which is also accepted by both parties whereas even after 20 years of execution of the Will, the said mistake has not been corrected by the Testator. Further, the plaintiff and P.W2 have not whispered as to whether the contents of the Will have been read out and explained to the Testator or not as he was an illiterate.
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19.12.2024
Index:Yes/No Web:Yes/No Speaking/Non Speaking Lbm
List of Witnesses Examined on the side of the Plaintiff:-
P.W.1- Mr.M. Sunder P.W.2- Mr.Karl Marc P.W.3- Mrs.Kotteswari
List of Witnesses Examined on the side of the Defendants:-
--Nil--
List of Exhibits Marked on the side of the Plaintiff:-
| Sl.No. | Dated | Description of documents | Exhibits |
|---|---|---|---|
| 1. | 23.10.1982 | Sale deed executed in favour of Mr.M.Masilamani |
Ex.P1 |
| 2. | 10.04.2016 | Death certificate of M.Masilamani issued by the Department of Health, Corporation of Chennai with Regn. No.2017/13.173.000059/0 |
Ex.P2 |
| 3. | 27.02.2017 | Death certificate of Rajeswari issued by the Department of health, Corporation of Chennai with Regn.No. 2017/13/173/000019/0 |
Ex.P3 |
| 4. | 05.02.2018 | Death Certificate of Manoharan issued by | Ex.P4 |
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| Sl.No. | Dated | Description of documents | Exhibits |
|---|---|---|---|
| the Department of Health, Corporation of Chennai with Regn.No. 2013/19/123/000400/0 |
|||
| 5. | 05.03.2014 | Legal Heirship Certificate of M.Manoharan bearing SL.No.276/2014 issued by the Office of Tahsildar, Mylapore Taluk, Chennai-600 028. |
Ex.P5 |
| 6. | 04.08.2017 | Legal Heirship Certificate of M.Masilamani bearing SL.No.1339/2017 issued by the Office of Tahsildar, Mylapore Taluk, Chennai-600 028. |
Ex.P6 |
| 7. | 04.07.2018 | Complaint on cost of Will deed with complaint ID.CAM 1852996 |
Ex.P7 |
| 8. | 30.07.2018 | Non-traceable Certificate from Inspector of Police, B4, High Court Police Station, Chennai 104 with C.No.133 |
Ex.P8 |
| 9. | 31.08.2018 | Certified copy of the Will from Sub- Registrar Office at Mylapore on with certified copy Application NO.CCA/Mylapore / 1765/2018 |
Ex.P9 |
List of Exhibits Marked on the side of the Defendants:-
--Nil--
19.12.2024
Gv/Lbm
A.A.NAKKIRAN,J.
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Gv/lbm
TOS.No.19 of 2021 in (OP.No.970 of 2019)
19.12.2024
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1 issue framed by the court
Whether the Will dated 21.07.1995 said to have been executed by Late Masilamani is genuine?
3 provisions across 1 enactments
M. Panneer Selvam
V. Pushpalatha
G. Kalai Selvi
A.A.Nakkiran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
