G.Sivasankaran Vs G.Porkodi

Prayer : Original Petition has been filed under Sections 232 and 276 of the Indian Succession Act XXXIX of 1925 for grant of Letters of Administration in respect of the last Will and Testament of the deceased V. Ganesan. Against this petition, a Caveat and Objection affidavit was filed by the Caveator on 21.01.2020. As per order of this Court, the Original Petition No.790 of 2019 was converted into Testamentary Original Suit No.5 of 2020.

¶10

For Defendant : M/s.G.S. Shive kumar

¶11

¶12

1/19 https://www.mhc.tn.gov.in/judis

¶13

TOS.No.5 of 2020

¶14

J U D G M E N T

¶15

This Testamentary Original Suit has been filed to grant Letters of Administration with the Will, dated 14.08.2008, executed by the deceased Testator V. Ganesan, annexed, in favour of the Plaintiff as beneficiary under the said Will, having effect throughout the State of Tamil Nadu.

¶16

2.The case of the Plaintiff, as set out, in the plaint is as follows:-

¶17

The deceased V. Ganesan, son of Varadhan Naicker was ordinarily residing at No.13/6, Theeti Thottam 2nd Street, Sembiam, Perambur, Chennai-600 011 and possessed of property within the State of Tamil Nadu. Late Ganesan was the father of the petitioner and the respondent herein. The last WILL and testament was written on 14.08.2008 and he died on 27.08.2008 at Sri Ramachandra Medical Centre & Research Institute.

¶18

(ii)The writing herein to annexed now shown to the petitioner and marked with Letter "A" is the Last WILL and Testament of the said Late Ganesan and was only executed on 14.08.2008 by him at his residence at No.13/6, Theeti Thottam 2nd Street, Sembiam, Perambur.

¶19

2/19 https://www.mhc.tn.gov.in/judis

¶20

TOS.No.5 of 2020

¶21

Chennai-600 011 in the presence of witnesses who attested at the foot thereof. No executor was appointed under the will. As per the Will, the movable properties viz. gold jewels, silver articles, etc. as found in the said Will are to the respondent and the immovable property viz. the house property at No.13/6, Theeti Thottam 2nd Street, Sembiam, Perambur. Chennai-600 011 will be enjoyed by the mother of the petitioner who has got life estate and after her life time, it will be absolutely vested with the petitioner. The petitioner's mother died on 07.05.2009 and except the respondent there is no next kin other interested persons to be impleaded as a party to the above proceedings.

¶22

(iii).The petitioner is the son and the respondent is the daughter of

¶23

the deceased late Ganesan. To avoid further litigation, after the death of the mother of the petitioner and the respondent. The petitioner handed over all the jewels of the mother weighing about 17 sovereigns of gold jewels including the Thali Chain to the respondent.

¶24

(iv)The amounts of the assets which are likely to come into the hands of the petitioner does not exceed in the aggregate the sum of Rs.30,00,000/- and the net amount of the said assets after deducting all

¶25

3/19 https://www.mhc.tn.gov.in/judis

¶26

TOS.No.5 of 2020

¶27

items which the petitioner by law allowed to deduct is only the value of Rs.30,00,000/-.

¶28

(v).No application has been made to any District Court or to any other High Court for the probate of the Will of the said deceased of letters of administration with or without a Will annexure for his properties and credits. The original Will was handed over to the petitioner by the mother of the petitioner Smt. Komalavalli, who got life estate over the said property in the year of 2009. At that time the petitioner was employed, therefore, he was unable to pay the court fee and other expenses, therefore delay in filling the application, the delay is neither will full nor wanton.

¶29

(vi). That the petitioner hereby undertakes to duly administer the property and credits of the said deceased Ganesan and in any way concerning his Will, by paying first his debts and then the legacies bequeathed so far as the assets will extend and to make a full and true inventory thereof and exhibit the same in this court within Six months from the date of grant of letters of administration with the Will annexed to the petitioner and also to render to this court a true account of the said property and credits within one year from the said date. Hence, this TOS has been filed, seeking the reliefs, as stated above.

¶30

4/19 https://www.mhc.tn.gov.in/judis

¶31

TOS.No.5 of 2020

¶32

3.The case of the Defendant, in a nutshell, as set out in her written statement, is as follows:-

¶33

(i).The defendant is the sister of the plaintiff. The plaintiff's father was employed in the B&C mills, Otteri Chennai. He purchased the land situate at Theeti Thottam of his own funds in the year 1977. The sale deed was registered as document No.1440 of 1977, SRO, Sembium. He constructed super structure by mortgaging the land with the Purasiwalkam Permanent Fund and discharged the loan from the rental proceeds from the house built on the land. He again mortgaged the land with the Purasiwalkam Permanent Fund on 30.06.1997 and 15.07.1999 and the mortgage was redeemed on 06.03.2007. He had mortgaged the property for the second time was to meet marriage expenses of the plaintiff.

¶34

(ii).The defendant's father was highly diabetic patient and also underwent treatment in E.S.I. hospital. Ayyanvaram for mental health related issues till 1993. He was taking treatment at the ESI hospital during his employment and took treatment for the mental related issues in the private hospital after the retirement. In other words, he was taking this above referred treatment regularly. He was depended on either on his wife or the defendant to carry out his decisions. Moreover, he was taking high

¶35

5/19 https://www.mhc.tn.gov.in/judis

¶36

TOS.No.5 of 2020

¶37

dosage of insulin medicine for his severe diabetics also. Moreover defendant mother from 2001 she was affected with cancer and underwent a treatment at Adyar cancer hospital and got cured.

¶38

(iii).The plaintiff after the marriage in the year 1999 stayed permanently with his wife at her residence. He did not stay with his parents. He did not take care of his parents either before or after the marriage. The defendant and mother took care of father till his death. The will dated 14.8.2008 alleged to be executed by V.Ganasen father of plaintiff and the defendant bequeathing the entire property to and in favour of the plaintiff has been fabricated and and the signature of Testator was forged.

¶39

(iv).The defendant and her mother were always been with her father to take care of his failing health. The defendant is in the possession of all the documents to support her statement. The defendant stayed with her husband with her parents after the marriage with sole purpose to take care of the parents, especially her father. He was admitted in the Ramachandra Hospital on 12.8.2008 as ulcer in the left leg became septic and foul smell emanated from the wound and it has been amputated. More

¶40

6/19 https://www.mhc.tn.gov.in/judis

¶41

TOS.No.5 of 2020

¶42

over, he did not speak coherently because he did not take medicines prescribed by the doctor who was taking care of mental issues. He was not in a position to understand things or aware of the surroundings. He used to shout without any reason because of wound in the left leg which became septic saddled with mental related issues. The defendant had 'Hobson's choice but bring back to the house on 12.8.2008 with great difficulty. His left leg began to decompose rapidly after he came home on 12.8.2008. The plaintiff, though, informed did not visit his ailing father on 12.8.2008. He lost the conscious and the defendant or any person could not go near to him due emanating foul smell from the left leg.

¶43

(v) While he was admitted in the Ramachandra Hospital in the ICU ward on 22.8.2008, the plaintiff did not come to the hospital. The defendants' father was operated and died at the hospital on 27.8.2008 at 7.15 am. The defendants and her relatives were all present at the time of his death. The defendant's father could not have executed the allged will on 14.8.2008 as claimed by the plaintiff since he was not in a position to comprehend anything. As stated supra, he lost conscious after he was discharged from hospital on 12.8.2008. The foul smell emanated from the wound was unbearable. No person could not able to go near him. In these

¶44

7/19 https://www.mhc.tn.gov.in/judis

¶45

TOS.No.5 of 2020

¶46

circumstances, it was impossible for him to have executed the alleged will on 14.8.2008 as claimed in the petition.

¶47

(vi). In fact the testator during his life time had divided the entire

¶48

property with super structure in two halves allotting right side of the property to the defendant and left side portion to the plaintiff. The defendant is in possession of the land and super structure situate on the right side. The defendant has leased the building and receives rent from the tenants till date. The plaintiff also receives the rent for his portion on the southern side. The plaintiff impliedly accepted this division made by the father and has not raised any objection with regard to the division in the property till date. The Property tax, Wates tax Electricity bill, have been paid by the defendant till date.

¶49

vii) The plaintiff has filed OS. No.2588 of 2012 on the file of XII Assistant City Civil Court, Chennai for an injunction simpleiter to restrain the defendant from interfering with the peaceful possession of the property which was dismissed on 10.12.2015 and no appeal has been filed and the decree and Judgment has become final. It is relevant to point out that the Letters of administration was filed in the year 2019 for the will alleged to have been executed on 14.8.2008 and no sufficient reason was

¶50

8/19 https://www.mhc.tn.gov.in/judis

¶51

TOS.No.5 of 2020

¶52

stated for the delay in filing the original petition. The reason stated that it was filed after the mothers demise. My mother who was a cancer patient died on 07.05.2009. The petition was filed after ten years after death of the mother. No proper reason was adduced for the inordinate delay. In no uncertain reason terms that the alleged will was a manipulated one. Further, the 1st witness to the said alleged will dated 14.8.2008 is plaintiff's father-in-law and the 2nd witness is also relative of his father-inlaw. Therefore, the suit is liable to be dismissed with exemplary costs.

¶53

On the pleadings of the parties and hearing the learned counsel on either side, the following issues were framed for determination:-

¶54

(1)Whether the Will dated 14.08.2008 executed by the Testator is valid in law and genuine?

¶55

(2)To what other reliefs of the parties are entitled?

¶56

On the side of the Plaintiffs, the plaintiff was examined as PW1 Ex.P1 to Ex.P21 were marked. On the side of the Defendant, D.W1

¶57

was examined and Ex.D1 to Ex.D4 were marked.

¶58

9/19 https://www.mhc.tn.gov.in/judis

¶59

TOS.No.5 of 2020

¶60

Heard both sides and perused the materials available on

¶61

record.

¶62

Issue Nos.1 and 2:

¶63

7.The learned counsel for the plaintiff submits that as per the Will, the movable properties viz., gold jewels, silver articles, etc as found in the said Will are to the defendant and the immovable property ie. The schedule mentioned suit property will be enjoyed by the mother of the plaintiff who has got life estate and after her life time, it will be absolutely vested with the plaintiff. After the death of their mother, all the jewels of the mother weighing about 17 sovereigns of gold jewels including the Thali Chain has been handed over to the defendant and the plaintiff is entitled to take possession of the suit property.

¶64

It has been further submitted that the Will was executed by the Testator with the sound disposing state of mind and to prove the same, two attesting witnesses ie. (1)PW.2 -M.Selvaraj and (2)PW.3-Mr.K. Munusamy, whose names appear at the foot of the Will, were examined. Hence, he prays to grant letter of Administration in favour of the plaintiff.

¶65

10/19 https://www.mhc.tn.gov.in/judis

¶66

TOS.No.5 of 2020

¶67

9.The learned counsel for the defendant submits that the alleged Testator was highly diabetic patient and also underwent treatment in E.S.I. Hospital, Ayyanvaram for mental health related issues till 1993. Further, he was admitted in the Ramachandra Hospital on 12.8.2008 as ulcer in the left leg became septic and it has been amputated. Hence, he was not in a position to understand things or aware of the surroundings as he lost the conscious.

¶68

It has been further submitted that while the plaintiff has filed O.S. No.2588 of 2012 on the file of XII Assistant City Civil Court, Chennai for an injunction to restrain the defendant from interfering with the peaceful possession of the property, which was dismissed on 10.12.2015 and no appeal has been filed and the decree and Judgment has become final. Further, the petition was filed after ten years after death of the mother. No proper reason was adduced for the inordinate delay. In no uncertain reason terms that the alleged will was a manipulated one. Further, the 1st witness to the said alleged will dated 14.8.2008 is plaintiff's father-in-law and the 2nd witness is also relative of his father-inlaw. Hence, the suit is liable to be dismissed with exemplary cost.

¶69

11/19 https://www.mhc.tn.gov.in/judis

¶70

TOS.No.5 of 2020

¶71

On perusal of the records, it is seen that the alleged Will was said to have been executed on 14.08.2008. The Testator died on 27.08.2008. As per the said Will, the life estate has been vested to the wife of the Testator and thereafter, his son has every right to enjoy the suit property. The Wife of the Testator died on 07.05.2009. According to the evidence of P.W.1, during the execution of the Will, the plaintiff, the mother of the Plaintiff, wife of the plaintiff, Advocate Kunjammal, P.W.2father in law of the plaintiff, and P.W3 one Mr.Munusamy who is also relative, were present. However, per contra, in the evidence of P.W.2 and P.W.3 they deposed that when the Will was executed by Mr. Ganesan, themselves, his Wife and his son were present wherein he would not state about the presence of the Advocate Kunjammal who is said to have scribed the said Will. Further, In the cross examination of P.W.1, he deposed about

¶72

P.W3, as Munusamy Advocate. However, in the cross examination of P.W.2, he has not stated about P.W3 is an Advocate and further, P.W.3 would say that he is the distant relative of the Testator and he did not say about his profession as Advocate. These aspects have not been clarified.

¶73

12/19 https://www.mhc.tn.gov.in/judis

¶74

TOS.No.5 of 2020

¶75

During the evidence of P.W1, it is admitted that his father was admitted in the hospital on 12.08.2008 and executed the said Will on the same day in their presence as stated above. As per the Will, it seems to have stated that the right leg of the Testator has to be amputated due to severe diabetic. In fact, on consideration of the evidence, it is seen that the left leg of the Testator was affected to be amputated. At the time of the execution of the said Will, while reading over the contents of the Will in the presence of the Testator, it has to be brought to the knowledge of the said Advocate with regard to the affected leg. This aspect has not been clarified.

¶76

Further, it is seen from the records that the Testator was said

¶77

to have admitted to the Hospital on 12.08.2008 since his left leg was seriously affected and became septic due to ulcer. During the deteriorated condition of his health, the Will was said to have executed by the Testator after discharging from the Hospital. Under such circumstances, the plaintiff is bound duty to prove the health condition of the Testator during the execution of the Will whether he was was in sound state of mind and good health condition by producing any documentary evidence. Even

¶78

13/19 https://www.mhc.tn.gov.in/judis

¶79

TOS.No.5 of 2020

¶80

though two attesting witnesses have been examined in this regard, they are

¶81

said to be relatives of the Testator and P.W2 is the father-in-law of the plaintiff, who are the interested witnesses of the plaintiff. Under such circumstances, the plaintiff failed to take steps to examine any independent evidence in the Witness Box to prove the sound state of mind and good health condition of the Testator during the execution of the Will. Further, he has not produced any medical records regarding the health condition of the Testator.

¶82

On perusal of the Will, it is seen that one Kunjammal,

¶83

Advocate, has scribed the Will in her own handwriting. However, there is no address and enrolment no of the Advocate mentioned in the said Will. It creates suspicion. Under such circumstances, the plaintiff has failed to take steps to examine the said witness to prove the Will.

¶84

Whereas the Will was said to have executed in favour of the

¶85

plaintiff, the plaintiff denied the division of the property. Per contra, in the Ex.D1, he deposed as below:

¶86

jhth brhj;jpy; tyJ g[wk; fPnH 3 gFjpfSk;. nkny 2 gFjpfSk; cs;sJ/

¶87

14/19 https://www.mhc.tn.gov.in/judis

¶88

TOS.No.5 of 2020

¶89

,lJ g[wk; fPnH 3 gFjpfSk;. nkny 1 gFjp/ jdpahftk; xU XL tPLk; cs;sJ/ tyJ g[wj;jpYs;s 3 tPLfSf;F Kjy; gpujpthjp thlif th';fpwhu;.;. ,lJ g[wj;jpy; cs;s 1 tPl;ow;f;F ehd; thlif th';Ffpnwd ; / tyJ g[wj;jpy; cs;s ,l';fis 1k; gpujpthjpa[k;. ,lJ g[wj;jpy; cs;s ,lj;ij ehDk; itj;jpUf;fpnwhk;/"

¶90

In view of the aforesaid, it is seen that the property is already divided. In this regard, there is no proper explanation.

¶91

It is admitted fact from the evidence of P.W1 to P.W3 that the plaintiff was present at the time of the execution of the Will. He knew about the Will on 14.08.2008 itself. After the demise of her mother, ie. 07.05.2009, if the Will is genuine, he has to approach before this Court in the prescribed period of law of limitation. However, the plaintiff has filed the present suit, in the year 2019 after 10 years of her mother death. Further,the plaintiff has filed O.S. No.2588 of 2012 without filing the said O.P. proceedings earlier. The reason for the inordinate delay in the plaint is not acceptable one. Hence, this Court is of the view that the plaintiff failed to prove the Will dated 14.08.2008 is valid in law and genuine by way of oral and documentary evidence. Accordingly, Issue No.1 is answered against the plaintiff. Since the Issue No.1 is answered against the plaintiff,

¶92

15/19 https://www.mhc.tn.gov.in/judis

¶93

TOS.No.5 of 2020

¶94

the plaintiff is not entitled to any relief as prayed in the suit. Accordingly,

¶95

Issue No.2 is answered.

¶96

In the result, the TOS is dismissed. No costs.

¶97

07..02..2025

¶98

Index:Yes/No Web:Yes/No Speaking/Non Speaking lbm

¶99

List of Witnesses examined on the side of the Plaintiff:-

¶100

PW.1 – G. Sivasankaran 2. PW.2 - M. Selvaraj

¶101

PW.3 - K. Munusamy

¶102

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

¶103

Ex.P1 -is the unregistered Will marked with subject to objection and proof and relevancy.

¶104

Ex.P2 is the Death Certificate of V.Ganesan dated 27.08.2008.

¶105

Ex.P3 is the print out copy of Death Certificate of Mrs. G.Komalavalli dated 07.05.2009 (Affidavit under section 65B Indian Evidence Act is submitted)

¶106

Ex.P4 is the Legal heir certificate of Ganesan dated 07.10.2011.

¶107

Ex.P5 is the original Sale Deed in favour of V.Ganesan dated 29.09.1997.

¶108

Ex.P6 is the Long Term Special Loan Mortgage Deed dated

¶109

16/19 https://www.mhc.tn.gov.in/judis

¶110

TOS.No.5 of 2020

¶111

07.08.1986.

¶112

Ex.P7 is the Terms Special Loan Passbook of Mr.V.Ganesan.

¶113

Ex.P8 is the Terms Special Loan Passbook of Mr.Ganesan and others relating to account number 5620.

¶114

Ex.P9 is the Form no.2D of Income Tax Act, Saral form with enclosures.

¶115

10.Ex.P10 is the Remitters copy of Challan. 13.07.1999.

¶116

11.Ex.P11 is the Terms Special Loan Passbook of Mr.Ganesan and others relating to account number 6363.

¶117

12.Ex.P12 is the voter list.

¶118

13.Ex.P13 is the Medicine Bill and Doctors prescription.

¶119

14.Ex.P14 is the property tax collection receipt.

¶120

15.Ex.P15 is the Gas receipt.

¶121

16.Ex.P16 is the Electricity Bill (series) no.

¶122

17.Ex.P17 is the Indian Bank Passbook of Mr.V.Ganesan.

¶123

18.Ex.P18 is the certified copy of the cancelled mortgaged deed in the name of plaintiff's father dated 07.03.1994.

¶124

19.Ex.P19 is the certified copy of the cancelled mortgaged deed in the name of plaintiff's father dated 30.06.1997.

¶125

20.Ex.P20 is the certified copy of the cancelled mortgaged deed in the name of plaintiff's father dated 15.07.1999.

¶126

17/19 https://www.mhc.tn.gov.in/judis

¶127

TOS.No.5 of 2020

¶128

21.Ex.P21 is the xerox copy of the interview letter issued by the Chennai Corporation to the plaintiff dated27.08.2010. (Subject to proof and relevance).

¶129