K.Babu Vs Ponniammal

Prayer : This Suit filed under Sections 232 & 276 of the Indian Succession Act, 1925 read with Order XXV Rule 5 of O.S.Rules 1956, for the grant Letters of Administration. As per order of this Court dated 11^th day of March 2019 in Application No. 1359 of 2019, Letters of Administration granted on 7^th day of November 2017, in O.P.No.792 of 2015 is revoked and the Original Petition has been converted into Testamentary Original Suit No. 20 of 2019.

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For petitioner : Mrs. B.Leena For 1^st Defendant : Mr.G.B.Sabari Das For DD 2 to 9 : set exparte

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JUDGMENT

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The plaintiff K.Babu, son of late Kesavan originally filed O.P.No. 792 of 2015 under Sections 232 and 276 of 1995 seeking grant of Letters of Administration with Will annexed, relating to an unregistered Will dated 31.07.2012 claimed by him to have been executed by his maternal grandmother Mulaviammal, who died at the age of 92 years on 13.11.2013.

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In the Original Petition, he had impleaded as the respondents his mother K.Chandra, his maternal aunts Rani and Ponniammal and his maternal uncle Singaram as respondents. He claimed that though his mother Chandra /

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first respondent had been appointed as the Executor under the Will, she had refused to sign the petition seeking probate of the Will and therefore left with no other alternate, he had taken upon himself to file the Original Petition under Sections 232 and 276 of the Indian Succession Act 1925 in his capcaity as beneficiary under the Will.

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The testatrix Mulaviammal was the allottee of land measuring 983 sq.ft., at No. 20/18, Chokkatan Salai, Nungambakkam, Chennai – 600 034 by M/s. Arulmigu Agatheeswarar Prasanna Venkatesa Perumal Devasthanam Temple. It had been contended that a building had been put up over the said land by the testatrix. Initially by an order dated 07.11.2017, Letters of Administration had been granted to the petitioner. Subsequently, the third respondent in O.P.No. 792 of 2015 filed Application No. 1359 of 2019 seeking to revoke the grant of Letters of Administration. By order of Court dated 11.03.2019, the application was allowed and the grant was revoked. The O.P.No. 792 of 2015 was thereafter converted as a Testamentary and Original Suit and numbered as T.O.S.No. 20 of 2019. Pending the Testamentary and Original Suit, the second to ninth defendants were impleaded by order dated 26.02.2024 in Application No. 525 of 2024.

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However, only the first defendant contested the suit by filing written statement and participating in the judicial proceedings. The second to nineth defendants were set exparte on 22.04.2024.

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In the written statement of the first defendant, it had been contended that the Will is a forged document created by the plaintiff. The first attesting witness is an Advocate and also the Advocate for the plaintiff and the second attesting witness is the son of the first attesting witness. It had been further stated that the testatrix was bedridden from 2010 and had lost her conciousness and therefore, it had been contended that the left thumb impression found in the Will was not that of the testatrix. It had been further stated that the plaintiff had filed O.S.No. 5841 of 2015 before the 12^th Assistant City Civil Court at Chennai against the respondents, who had been impleaded as respondents in the Original Petition seeking a Judgment and Decree of permanent injunction restraining them from interfering with his peaceful possession of the suit property. In that suit, the first defendant was his mother K.Chandra and in her written statement, she had very categorically stated that her mother Mulaviammal was in death bed for more than four years and had lost her conciousness and that the Will had been

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created by the plaintiff to grab the entire property. It had been stated that the defendants are the legal heirs of the deceased and are entitled to reside and enjoy the suit property.

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The first defendant in the Testamentary and Original Suit therefore

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claimed that the relief for grant of Letters of Administration should be rejected and the suit should be dismissed.

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On the basis of the pleadings, by an order dated 18.01.2024 a

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learned Single Judge had framed the following two issues:-

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“1. Whether the Will dated 31.07.2012 is true and

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genunine?; and

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2. To what relief?”

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The parties were thereafter directed to tender evidence. The

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plaintiff examined himself as PW-1 and filed his proof affidavit. He marked Exs.P-1 to P-22. Ex.P-1 was the original Will dated 31.07.2012; Ex.P-2 was

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the print out of the death certificate of the testatrix; Ex.P-3, Ex.P-9 to Ex.P-

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22 were the rental receipts for the payment of rent to the Temple; Exs.P-4, P-

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5 and P-6 were property tax, Electricity Board and CMWSSB payment receipts. Exs. P-7 and P-8 were death certificates of V.Manohar whose legal representatives were D6 to D-9 and of V.Mani, whose legal representatives were D-2 to D-5. During the course of examination of PW-1, the defendants marked Exs. D-1 to D-3. Exs. D-1 and D-2 were copies of the plaint and written statement in O.S.No. 5841 of 2015 and Ex.D-3 was a copy of an order in E.P.No. 1882 of 2019.

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The plaintiff thereafter examined PW-2 S.Aswin Karthikeyan, the

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second attesting witness, who is also an Advocate.

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No witnesses were examined on the side of the defendant.

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Both the learned counsels for the plaintiff and for the first defendant filed written arguments.

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In the written arguments filed by the plaintiff, it had been contended that the testatrix Mulaviammal was residing at No. 20/18, Chokkatan Salai, Nungambakkam, Chennai – 600 034, and was allotted land

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measuring 983 sq.ft., by M/s. Arulmigu Agatheeswarar Prasanna Venkatesa Perumal Devasthanam Temple and had then put up constructions of about 600 sq.ft., on the ground floor and 300 sq.ft., on the first floor and also obtained electricity and water connections and that the property was also assessed to tax. It had been further stated that she was taken care of for the past 25 years by the plaintiff K.Babu, her grandson and that none of the defendants had taken care of her till she died on 13.12.2013. It had been stated that therefore she had executed a Will out of love and affection and gratitude towards the plaintiff bequeathing that the property to him. It had been stated that in the Will that her daughter / mother of the plaintiff, K.Chandra had been appointed as executor. However, the executor refused to put her signature in the application seeking probate of the Will and therefore the plaintiff had filed the present application seeking grant of Letters of Administration with Will annexed.

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It had been further stated that the Will had been attested by two witnesses, who were both Advocates, S.Sundar and his son S.Ashwin Karthikeyan. The first attesting witness had died and therefore, the second attesting witness was examined as PW-2. It had been very specifically stated

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that none of the legal heirs of Mulaviammal looked after her in her old age.

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It had been further stated that the plaintiff had been examined as PW-1 and he had marked the original Will as Ex.P-1. He had also produced documents to show that he had paid land rent to the Temple and also produced the electricity, water and property tax receipts as documents. It had been further stated that the Will had been proved in manner known to law. It had been thus contended that Letters of Administration must be granted to the plaintiff.

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In the written arguments filed by the first defendant, it had been stated that the property is a Temple property belonging to Arulmigu Agatheeswarar Prasanna Venkatesa Perumal Devasthanam which is evident from Ex.P-3 and Exs.P-9 to P-21 which were land rents paid by the plaintiff to the Temple. It had been further stated that the counsel, who had filed O.P.No. 792 of 2015, S.Sundar was one of attesting witness and was therefore directly interested in the grant of the relief. The other witness was the son of S.Sundar and also an Advocate. It had been specifically stated that the plaintiff and his advocates had prepared the Will dated 31.07.2021 and had affixed the left hand thumb impression of an unknown person to acquire the Temple property. It had been further pointed out that the plaintiff had

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filed O.S.No. 5841 of 2015 before the 12^th Assistant City Civil Court, Chennai seeking a Judgment and Decree of permanent injunction restraining his mother and his maternal aunts and uncle from interferring with peaceful possession. In that suit, his mother in her capacity as the first defendant had filed a written statement which had been marked as Ex.D-2 wherein she had very categorically stated that the testatrix, Mulaviammal was lying in death bed for four years and was unconciousness and that the Will was a forged and fabricated Will with aim to grab the property. It had thus been contended that the suit should be dismissed.

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I have considered the written arguments filed and perused the materials available on records.

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Issue No.I:

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This issue surrounds whether the Will dated 31.07.2012 said to

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have been executed by Mulaviammal, who died on 13.11.2013 was a true and genunine Will.

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The plaintiff K.Babu is the grandson of Mulaviammal, the testatrix, who died on 13.11.2013 at the age of 92 years. The Will is dated 31.07.2012. It is an unregistered Will. The left thumb impression of the testratrix is found in the Will. The Will had been attested by two witnesses, S.Sundar and Advocate and his son S.Ashwin Karthikeyan also an Advocate.

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Initially, the plaintiff had filed O.P.No. 792 of 2015 seeking Letters of Administration with Will annexed. This Petition was filed by his Advocate S.Sundar, one of the attesting Witnesses. In the Will, the testatricx has named her daughter K.Chandra, the mother of the plaintiff as the executor. It had been stated in the petition that she refused to sign the petition seeking probate of the Will.

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The plaintiff had earlier filed O.S.No. 5841 of 2015 before the 12^th Assistant City Civil Court, Chennai against his mother Chandra, the defendant herein, Ponniammal and their another sister and brother seeking permanent injunction restraining them from interferring with his peaceful possession of the property. In that particular suit, his mother K.Chandra had filed a written statement. In that written statement which was marked as Ex.D-2, she had stated as follows:-

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“6. The deceased Mulaviammal was in death bed for more than four years before her demise and she lost her conscious during the said 4 years and therefore, the alleged Will which the plaintiff claims is nothing but a fabricated and forged one and the deceased has no intention to execute such Will and her thought was that the defendants 1 to 3 are uneducated and the property should be devolved upon them.”

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In the written statement filed in this suit filed by the defendant Ponniammal, it had been further stated as follows:-

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“7. This defendant submits that hte plaintiff fabricated hte Will dated 31.07.2012 to usurp her estates, even otherwise not valid for the following reasons:

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a) The L.T.I of the deceased Mulaviammal in the unregistered Will dated 30.07.2012 is suspicious wherein she was bedridden since 2010 and lost her conscious, thus it only goes to prove that Will dated 30.07.2012 is nothing but fabricated one by K.Babu/Plaintiff.

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b) When it is specifically pleaded in para-13 and 14 of the above O.P.No. 792 of 2015 that plaintiff's mother K.Chandra and the daughter of the deceased Mulaviammal refused to sign the probate papers in her capacity as “Executor of the Will”, which would automatically tantamount to an objection for grant of “Letters of Administration.”

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c) Moreover, the first attesting witness in the unregistered Will dated 30.07.2012 of deceased Mulaviammal is none-other than the counsel for K.Babu/Plaintiff and the second attesting witness is the son of the first attesting witness, thus raises more suspicious about the execution of the above Will and they also being the counsels examined themselves as witnesses in the O.P., without subjecting to themselves for cross examination.

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d) The plaintiff's mother had categorically stated in the written statement in O.S.No. 5841 of 2015, that her son plaintiff has no claim in teh property and further he had fabricated and forged the Will of her mother when she had no intention to execute the Will nor she can when she had lost her conscious since the year 2010 till her death.”

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The above are very damaging pleas taken by the defendant in this

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suit and by the mother of the plaintiff in the earlier suit filed by the plaintiff in O.S.No. 5841 of 2015. The plaintiff had not filed any reply denying the

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said allegations raised against him in the said written statement.

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During his cross examination, he had stated as follows in question

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Nos. 7 to 10:-

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“Q7: Have you filed any document to prove the relationship between you and Mulaviammal as to Mulaviammal is your grandmother?

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A: No.

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Q8: In Ex.P1 Will the beneficiary name is mentioned as one Babu. Whether are you said the same Babu. Have you filed any proof to confirm the same?

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A: I have Aadhaar and Voter ID.

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Q9: Have you filed the Aadhaar Card and Voter's

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ID?

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A: No

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Q10: I put it to you that you are not the Babu mentioned in the Ex.P-1 Will, you are impersonating Babu?

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A: I deny”

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It is thus seen that the defendant had questoined the very identity. This is all the most significant since the defendant is his own maternal aunt but still she had put up a stand that though her nephew may be named Babu, the plaintiff was not that person.

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The property also belonged to the Temple and this had been

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admitted by the plaintiff. The following questions are relevant:-

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“Q12: Is it correct to state that property mentioned in Ex.P-1 Will belongs to Temple?

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A: Yes.

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Q25: EX. P-9 to Ex.P13 are shown to the witness.

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In those receipt it is mentioned as “received towards damages for use and occupation for the premises without prejudice to the case pending in the Court”. It it right?

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A: Yes.

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Q26: Ex.P-9 to Ex.P13 are shown to the witness.

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Is it right to state that these exhibits Ex.P9 to Ex.P13

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belongs to the property mentioned in Ex.P1 Will?

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A: Yes. Those are rental receipts given by the temple authorites.

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Q27: A document is shown to the witness. Is it right to state that the case mentioned in Ex.P1 to Ex.P13 relates to the E.P.No. 1882 of 2019 in O.S.No. 4301 of 1984 on the file of X Assistant City Civil Court, Chennai, as per the order passed in the above E.P. You have to vacate the property and delive the vacant possession to the Temple / Decree Holder?

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A: Yes. The Order in E.P.No. 1882 of 2019 is marked as Ex.D3.

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Q28: I put it to you that in order to acquire the Temple property you have created a forged Will and filed a false case?

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A: I deny.”

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It is thus seen that the land has been admitted as belonging to the Temple. The right of the tstatrix to execute the Will itself is therefore questionable.

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One further very significant fact is that the first attesting witness was S.Sundar, Advocate, and he was also the Advocate of the plaintiff and had filed O.P.No. 792 of 2015. The second attesting witness was his son,

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who had been examined as PW-2. During his cross examination, PW-2 had been confronted with these facts and he had stated as follows:-

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“Q6: Who is the first attesting witness?

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A: My father S.Sundar.

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Q7: I put it to you that your father Sundar has filed a Case in O.P.No. 792 of 2015 now T.O.S.No. 20 of 2019 and filed Vakalath for the petitioner/plaintiff Babu?

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A: Yes.”

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Very specific suggestions were put to the witness alleging that the

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Will has been fradulently prepared. Though the witness denied the suggestions, the nature of the suggestions are very significant. They were as follows:-

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“Q17: I suggest that this Ex.P1 Will is prepared

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by your father at his office for the benefit of plaintiff Babu and thumb impression of unknown person is affixed in the Ex.P1 Will without the knowledge and

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consent of Mulaviammal?

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A: I deny

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Q18: I suggest that the Ex.P1 Will is a fradulent Will prepared by Babu the Plaintiff in connivance with your father to usurb of hte Temple Property?

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A: I deny.

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Q19: I suggest that your father first attesting witness who had prepared the fradulent Will at hte behest of Babu the plaintiff also filed the O.P.No. 792/2015 abusing the process of Court?

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: I deny.”

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When PW-1 was cross examined, he admitted to Ex.D-2 the written

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statement of his mother Chandra in O.S.No. 5841 of 2015.

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In ( 2021) 11 SCC 209 [Kavitha Kanwar Vs. Pamela Mehta and

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Others] , the Hon'ble Supreme Court had summonned the principles concerning proof of Wills and held as follows in paragraph No.24.8:-

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“24.8. ........Suffice would be to point out that in

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a recent decision in S hivakumar v. Sharanabasappa

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[Shivakumar v. Sharanabasappa, (2021) 11 SCC 277] , this Court, after traversing through the relevant

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decisions, has summarised the principles governing the adjudicatory process concerning proof of a will as follows : (SCC pp. 309-10, para 12)

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“12. … 12.1. Ordinarily, a will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of will too, the proof with mathematical accuracy is not to be insisted upon.

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12.2. Since as per Section 63 of the Succession Act, a will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.

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12.3. The unique feature of a will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a will.

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12.4. The case in which the execution of the will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.

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12.5. If a person challenging the will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may give rise to the doubt or as to whether the will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.

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12.6. A circumstance is “suspicious” when it is not normal or is ‘not normally expected in a normal situation or is not expected of a normal person’. As put by this Court, the suspicious features must be “real, germane and valid” and not merely the “fantasy of the doubting mind”.

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12.7. As to whether any particular feature or a set of features qualify as “suspicious” would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances abovenoted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the will. On the other hand, any of the circumstances qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.

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12.8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the will of the testator is surrounded by suspicious circumstance(s). While applying such test, the court would address itself to the solemn questions as to whether the testator had signed the will while being

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aware of its contents and after understanding the nature and effect of the dispositions in the will?

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12.9. In the ultimate analysis, where the execution of a will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the court and the party which sets up the will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the will.””

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In (2023) 9 SCC 734 [Meena Pradhan and Others Vs. Kamla Pradhan and another], the Hon'ble Supreme Court had summarised the principles for proving of a Will as follows:-

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“ 10.1. The court has to consider two aspects : firstly, that the will is executed by the testator, and secondly, that it was the last will executed by him;

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10.2. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.

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10.3. A will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say:

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(a) The testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a will;

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(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;

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(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures;

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(d) Each of the attesting witnesses shall sign the will in the presence of the testator, however, the presence of all witnesses at the same time is not required;

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10.4. For the purpose of proving the execution of the will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;

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10.5. The attesting witness should speak not only about the testator's signatures but also that

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each of the witnesses had signed the will in the presence of the testator;

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10.6. If one attesting witness can prove the execution of the will, the examination of other attesting witnesses can be dispensed with;

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10.7. Where one attesting witness examined to prove the will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence;

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10.8. Whenever there exists any suspicion as to the execution of the will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last will. In such cases, the initial onus on the propounder becomes heavier.

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10.9. The test of judicial conscience has been evolved for dealing with those cases where the execution of the will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the will while acting on his own free will;

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10.10. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.

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10.11. Suspicious circumstances must be “real, germane and valid” and not merely “the fantasy of the doubting mind [Shivakumar v. Sharanabasappa, (2021) 11 SCC 277] ”. Whether a particular feature would qualify as “suspicious” would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance, for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit, etc. ”

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31. In the instant case, the suspicious circumstances which surround the execution of the Will are that the testatrix was aged 92 years and according to THE non controverted statement was lying in her death bed for four years and was unconscious which statement was made by her two

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duaghters and also stood non controverted. Further, the Will is an unregistered Will and there is a specific allegation in the written statement that the left thumb impression was not with of the testatrix. No steps had been taken to prove the left thumb impression. Additionally the attesting witness was an Advocate, who also filed the petition seeking Letters of Administration. Moreover in the Will, the mother of the plaintiff was named as executor and she refused to sign the papers seeking probate of the Will holding that the plaintiff herein, her own son had fabricated the Will.

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It had been very conclusively held that where the execution of a Will is shrouded in suspicion, convincing explanation of suspicious circumstances must be given. There must be satisfaction of judicial conscience that the Will had been executed out of sound and disposing state of mind. All these factors are absent in the instant case.

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The suspicious circumstances had been enumerated and I hold that the plaintiff had failed to explain the suspicious circumstanes projected by the defendants. There is no rebuttal over the specific allegation that the testatrix who was 92 years when she died was bedridden for four years and

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was unconscious. The Will was executed just about a year before her death. It is an unregistered Will. Only her left thumb impression is found. The active participation of the Advocate signing as attesting witness and also filing the petition seeking Letters of Administration is very significant. The refusal of the executor, who is none other than the mother of the plaintiff, to sign the petition seeking probate is more significant. Further the property had been admitted to be belonging to the Temple and therefore, the very authority of the testatrix to execute the Will is also questionable.

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In view of these circumstances, with respect to Issue No.1, I hold that the Will dated 31.07.2012 said to have been executed by Mulaviammal, who died on 13.11.2013 is neither genuine nor true but is actually a forged and fabricated Will. This issue is answered against the plaintiff.

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Issue No.2:

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In view of the conclusion drawn with respect to Issue No.1, I have no hesitation in holding that the plaintiff had come before the Court without bona fide intention and had not explained the suspicious circumstances raised by the defendant and satisfied the judicial conscience of the Court.

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I hold that the plaintiff is not entitled to any relief and that the suit

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should be dismissed.

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In the result, the suit is dismissed with costs.

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Vsg Index:Yes/No Web:Yes/No

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25.07.2025

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Speaking/Non Speaking Order

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1. List of Witnesses Examined on the side of the Plaintiff:-

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P.W.1 – K.Babu

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P.W.2 – S.Aswin Karthikeyan

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List of Exhibits Marked on the side of the Plaintiff:-

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Ex.P1 is original Will dated 31.07.2012 executed by Mulaviammal;

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Ex.P2 is printout of the Death Certificate of Mulaviammal;

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Ex.P3 is original land rent issued by the Secretary Arulmigu Agatheeswarar Prasana Venkatesa Perumal Devasthanam in favour of late Mulaviammal dated 21.01.2015;

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