JUDGMENT
M. Jeyapaul, J.
Page 1942
1. The suit was originally filed in the form of petition under Sections 232 and 276 of the Indian Succession Act, 1925 seeking grant of letters of administration. As the defendants herein filed caveat along with the supporting affidavit, the petition was converted into Testamentary Original Suit.
Page 1943
2. The plaintiffs would contend that Navaneethammal, the mother of the respective parties executed and registered a Will dated 6.6.1979. She died on the first day of May 1984 at door No. 24, Appu Naicken Street, Nungambakkam, Chennai 600 034. As the plaintiffs could not trace the Will in spite of their intermittent search, they could not locate the Will till the petition was filed. Having undertaken to duly administer the property and credits of the deceased Navaneethammal, the plaintiffs have sought for grant of letters of administration.
3. The defendants would submit in the written statement that the suit property was originally purchased by the father of the plaintiffs and the defendants. He executed a settlement deed dated 15.6.1969 in favour of his wife Navaneethammal. The property was settled by the father of the respective parties in favour of his wife with an understanding that the settlee would give the property to his three daughters after her lifetime. The truth, genuineness and validity of the Will are not admitted. The Testatrix had no intention to execute any Will in favour of her sons excluding the daughters. The Will might have been the outcome of deception and fraud played by the plaintiffs. The plaintiffs would have forged the Will to defraud the defendants. Though the father of the respective parties was alive at the time when the Will was allegedly executed, there is nothing to show that he actively participated in the execution of the Will executed by his wife. In the suit in O.S.No. 11980 of 1996 pending on the file of the VII Additional City Civil Court, Chennai, the plaintiffs chose to disclose the existence of the will for the first time. With all the aforesaid reasons, the defendants would contend that the claim of the plaintiffs is not sustainable.
4. The following issues were framed for determination:
1. Whether the alleged Will dated 6.6.1979 said to have been executed by Smt. Navaneethammal is true, genuine and valid.
2. Whether the suit property was originally purchased by Sri. R. Gopalaswamy Pillai husband of the Testatrix.
3. Whether, the property under the Will was given to Navaneethammal by her husband under a settlement deed dated 15.6.1969 with an understanding that after her death, the property should be given to the three daughters.
4. Whether the Testatrix was an illiterate woman and whether the Will was made due to deception and fraud exercised by the plaintiffs.
5. Whether the plaintiffs are entitled to letters of administration of the subject will dated 6.6.1979.
6. To what relief are the parties entitled?
5. On the side of the plaintiffs, the first plaintiff was examined as PW1 and one of the attesting witnesses byname Chandra Mouli was examined as PW2 and Exs.P1 to P4 were marked. On the side of the defendants, the second defendant was examined as DW1, but, no document was marked on their side.
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6. Issues 2 and 3: It is the admitted position of both the parties that R. Gopalasamy Pillai, the husband of the Testatrix originally purchased the suit property and thereafter, he settled the same in favour of his wife. As there is no dispute with respect to the above fact, the court finds that issue No. 2 has become redundant.
7. It is true that the defendants have contended that the father of the respective parties executed a settlement deed dated 15.6.1969 in favour of the Testatrix who was his wife with an understanding that after her demise, the suit property must go to their three daughters. Except the interested oral assertion of DW1, there is nothing on record by way of any evidence from independent source that there was such an understanding beyond the domain and scope of the settlement deed dated 15.6.1969. The defendants also have not chosen to file the aforesaid settlement deed before this Court. Further, it is found that the defendants herein have filed a suit in C.S.No. 1615 of 1994 before this Court renumbered as O.S.No. 11980 of 1996 on the file of the VII Additional City Civil Court, Chennai on transfer. The copy of the plaint has been marked as Ex.P3. In the said suit, the defendants have sought for 2/10 share in the suit property. There is no dispute to the fact that the Testatrix and her husband were blessed with seven sons and three daughters. If at all, there was such an understanding at the time of execution of the settlement deed by the husband of the Testatrix, the defendants herein, being daughters, would have claimed in the said partition suit 2/3 share in the suit property. In view of the above, the court finds that the plea of the defendants that there was an oral understanding, at the time of execution of the settlement deed by the husband of the Testatrix in her favour, to give the entire suit property in favour of their three daughters is not found sustainable. Issue No. 3 is answered accordingly.
8. Issues 1 and 4: Learned Counsel for the plaintiffs would submit that the defendants, who have set up a plea in the written statement that deception and fraud had been practised by the plaintiffs while creating the Will, have not even put a suggestion to PW1 with regard thereto at the time when he was examined before the court. As the Will has been established by examining PW1 and PW2 who is one of the attestors to the Will, the defendants will have to come forward with sufficient evidence to establish fraud, deception and forgery alleged by them. There is also no specific pleading in the written statement about such serious allegations, he would further submit.
9. Per contra, learned Counsel for the defendants would contend that there are serious suspicious circumstances surrounding the execution of the Will. Though the Will was executed on 6.6.1979, the registration had taken place only on 6.12.1979, about six months after the execution of the Will. Though the husband of the Testatrix was alive at the time of execution of the Will, he had not chosen to participate in the process of execution of the Will. There is found to be an abnormality in the left thumb impression of the Testatrix found at the first page of the Will. The plaintiffs Page 1945 have not chosen to disclose the existence of the Will till the defendants filed a suit for partition. It is quite unnatural to disinherit all the daughters from a share in the property of their mother, he would lastly contend.
10. The Will, Ex.P1 dated 6.6.1979 is found to be a registered document. It is an admitted fact that the husband of the Testatrix passed away in the year 1982 and the Testatrix breathed her last on 1.5.1984. The Testatrix who had survived for five long years after the execution of the Will has not come out with any allegation of fraud, deception and forgery as alleged in the pleadings of the defendants. If such unlawful methods have been employed by the plaintiffs, the Testatrix and her husband who survived for quite a long time after the execution of the Will would have definitely raised their voice against the execution of the Will.
11. There are totally seven sons and three daughters. Except these defendants, all others have given consent affidavit, it is found. If such unethical practice had been adopted by the plaintiffs in procuring the Will from their mother, the other legal heirs would not have kept quite and meekly filed consent affidavit.
12. The independent witness, PW2 has loudly spoken to the effect that the Testatrix, in a sound and disposing state of mind, having understood the content of the Will read over by the scribe, signed the Will and witnessed the attestation and the attestors also witnessed the signing of the Will by the Testatrix. The independent evidence of PW2 is found to be quite reliable and could not be demolished by the defendant.
13. The Testatrix has chosen to associate one of her sons in his capacity as attesting witness to the execution of the Will. But, in this case, the plaintiffs have chosen to examine the independent attesting witness viz., PW2 to establish the execution and attestation of the Will by the Testatrix. PW2 has categorically deposed before the court that the husband of the Testatrix also was very much present at the time of execution and registration of the Will. Such a version of PW2 could not be assailed by the defendants during the course of examination of PW2. Putting the left hand thumb impression in the wrong position does not invalidate the Will which was otherwise proved by the attestor, PW2. There is nothing unnatural to disinherit the daughters. After all, the Testatrix has given the property not to any third party, but, to her own male children. In a Testamentary Succession, disinheritance of some of the heirs is quite inevitable. There is nothing wrong in registering the Will six months after its execution. When the plaintiffs have established the execution and attestation of the Will, the onus shifts on the defendants to come out with some acceptable material to establish the allegation of fraud, deception and forgery. Nothing is on record on the side of the defendants even to vaguely indicate something towards such uncharitable allegations against the plaintiffs.
14. The learned Counsel for the defendants submitted an authority reported’, in Kalyan Singh v. Chhoti , wherein it has been held,
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The Will in the present case, constituting the plaintiff as a sole legatee with no right whatever to the testator’s wife seems to be unnatural. It casts a serious doubt on genuineness of the Will. The Will has not been produced for very many years before the court or public authorities even though there were occasions to produce it for asserting plaintiff’s title to the property. The plaintiff was required to remove these suspicious circumstances by placing satisfactory material on record. He has failed to discharge his duty.
Here is a case where the defendants have not shown that there had been occasions for the plaintiff warranting disclosure of the Will executed by their mother. The moment, the partition suit has been laid by the defendants seeking share in the suit property, the plaintiffs had chosen to disclose the existence of the Will executed by their mother. If at all, the plaintiffs had burked the very existence of the Will whenever occasions unfolded to them, then the court can presume that there is some suspicion in the very existence of the Will. But, the facts and circumstances of this case is found otherwise. Therefore, the above authority does not apply to the facts of this case.
15. It is held that the Will dated 6.6.1979 executed by the Testatrix Navaneethammal is true, genuine and valid and no deception or fraud was played by the plaintiffs, though the Testatrix was admittedly an illiterate woman. Issues 1 and 4 are answered accordingly.
16. Issues 5 and 6: The plaintiffs have established the execution of the Will by the Testatrix in a sound and disposing state of mind and the attestation thereof by the witnesses concerned. Therefore, the plaintiffs are entitled to grant of letters of administration as prayed for. Issues 5 and 6 are answered accordingly.
17. In the result, the suit is decreed as prayed for. Letters of Administration is ordered to be issued in favour of the plaintiffs herein.
18. The plaintiffs are directed to take inventory of the assets of the deceased Navaneethammal within six months from today and are also directed to render true and due accounts of the properties and credits within one year from today.
19. The plaintiffs are directed to execute a personal bond for a sum of Rs. 25,000/- (Rupees twenty five thousand only) in favour of the Assistant Registrar (O.S.), High Court, Madras-104.