THE HON’BLE MR.JUSTICE T.RAJA AND THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY O.S.A.No.368 of 2018. —-Judgment delivered by the Hon’ble Mr.Justice.D.Bharatha Chakravarthy, pertaining to validity and / or proof Will executed by a Testator. Judges. (DBCJ.,)

IN THE HIGH COURT OF JUDICATURE AT MADRAS

 

DATED :  15.11.2021

 

CORAM :

 

THE HON’BLE MR.JUSTICE T.RAJA

AND

THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

O.S.A.No.368 of 2018

and

CMP.No.15802 of 2018

N.Mannammal                                                       …. Appellant

Versus

 

R.Parthasarathy                                                                      … Respondent

 

          Original Side Appeal filed under Order XXXVI and Rule 11 read with clause 15 of the Letters of Patent, to set aside the Fair and Final Order dated 26.06.2018, made in T.O.S.No.1 of 2016 (O.P.No.646 of 2014), passed by this Court.

 

For Appellant     :  Mr.S.Gopinathan

 

For Respondent  :  Mr.G.Rajkumar

 

JUDGMENT

 

(The Judgment was made by Mr.Justice.D.Bharatha Chakaravarthy)

 

This Intra Court appeal is filed by the unsuccessful defendant in the Testamentary Original Suit No.1 of 2016 as against the Judgment and Decree of the Learned Judge of this Court decreeing the T.O.S.No.1 of 2016, thereby granting Letters of Administration with the Will annexed in favour of the plaintiff in respect of the Last Will dated 13.12.2000 of the deceased one Ramasamy, S/o. Gopal.

 

2.The plaintiff / Mr.R.Parathasarathy is the brother of the defendant Ms.Mannammal. They are both children of late. G.Ramasamy S/o. Gopal and his wife R. Kannammal. G.Ramasamy died on 16.02.2001. The said R.Kannammal died intestate on 19.06.2006.  On 20.04.2007, the defendant herein viz., Mannammal joining her four sons also as plaintiffs filed a suit for partition in O.S.No.4366 of 2007 on the file of the XIII -Assistant Judge, City Civil Court, Chennai, praying to partition the suit property viz., the house, ground and premises admeasuring 880 sq.ft., in Plot AP.No.496, 25th Street, 5th Sector, K.K.Nagar, Chennai – 78, and for delivering the seperate possession of ½  share to her. The plaintiff herein, who was the defendant in the said suit filed a written statement during January, 2008 stating that the father namely Mr.G.Ramasamy, executed a Will dated 13.12.2000, thereby granting life estate to his wife Kannammal and to the plaintiff / Parthasarathy and finally as per the Will the property is  bequeathed to Mr.Ashok Kumar, son of the plaintiff / Parthasarathy. The aforesaid O.S.No.4366 of 2007 was decreed by Judgment and decree dated 16.02.2010, by granting partition of one-half share and  separate possession, in respect of the suit property to the defendant herein, who was the plaintiff in the said suit. The said suit was decreed on the ground that the said Will was not marked as a document in the suit after obtaining probate as per law. The plaintiff herein filed A.S.No.352 of 2010 as against the said Judgment and decree, on the file of the learned II Additional Judge, City Civil Court, Chennai and by judgment and decree dated 30.07.2013, the above appeal was dismissed, confirming the finding of the Trial Court.  A Second Appeal in S.A.No.329 of 2015 was filed by the plaintiff herein on the file of this Court and the same was pending.

 

3.When the above partition proceedings were going on, the plaintiff herein had filed O.P.No.646 of 2014 for grant of Letters of Administration with the Will annexed under Section 232 and 276 of the Indian Succession Act, 1925. The Original Petition was filed on 07/06/2013 in O.P.Sr. No. 15600/2013 and was taken on file as O.P. No.646 of 2014 on13/10/2014. In the said petition, in paragraph 9, the petitioner/plaintiff had averred that originally they had filed the petitioner in O.P.Sr. No. 3559 of 2010, however, the said papers were lost by their counsel and as such they filed the above petition. The defendant herein had entered a Caveat and therefore, the Original Petition was converted as Testamentary Original Suit in T.O.S. No.1 of 2016 by order dated 24/11/2015 and the defendant herein filed a Written Statement on 24.02.2016 opposing the grant of Letters of Administration. The contentions of the defendant in the written statement is that if really there was a Will executed by the father, the plaintiff would have immediately changed all the records of the property in the name of his son; it is a clear case that Will produced is forged to grab the property by denying her legitimate right. It is the further submission of the defendant that the reason adduced by the plaintiff for belatedly filing the application for grant of Letters of Administration is false and a contradictory stand was taken in the partition proceedings initiated by her.

 

4.With these pleadings, the parties went into trial. On behalf of the plaintiff, the plaintiff examined himself as PW.1 and one Sadhasivam is the attesting witness to the Will, was examined as PW.2. The original Will was marked as Ex.A1 and other documents were marked as Ex.A2 to A7.  On behalf of the defendant, she examined herself as DW.1 and Ex’s.B1 to B3 were marked.

 

5.Considering the nature of the above mentioned Second Appeal filed in S.A.No.329 of 2014, the same was taken up for hearing along with the present T.O.S.No.1 of 2016 and after hearing the arguments of both sides, by a Judgment and decree dated 26.06.2018, the learned Judge held that the Holographic Will is genuine and granted Letters of Administration, rejecting the original plea of forgery and an additional plea of lack of locus standi. Against the said Judgment and decree, the present Original Side Appeal in O.S.A.No.368 of 2018 is filed and taken up for hearing.

 

6.Heard Mr.Gopinathan, Learned Counsel for the Appellant and Mr.G.Raj Kumar, Learned Counsel appearing for the Respondent.

 

7.Mr.Gopinathan, Learned Counsel for the Appellant took us through the Holographic Will and other records and submitted that as a matter of fact, the defendant had raised a plea of forgery. She filed an application for comparing the signature and handwriting by way of application in A.No.6116 of 2016 in T.O.S. No.6 of 2016. However, the said application was dismissed on the ground that they could not produce any other admitted contemporaneous signature of the Testator so as to compare. Further he would submit that there is a delay in filing the application for grant of Letters of Administration, which raises a suspicion against the Will. It is his further submission that the plaintiff / Parathasarthy is not bequeathed with the property and ultimately the property is bequeathed only on his son, Ashok Kumar and therefore, only the said Ashok Kumar is a competent person to file the application for grant of Letters of Administration and this application has been filed by the plaintiff/ R.Parathasarathy, in his individual capacity and therefore in the absence of any pleadings or documents to show that he is filing the application for grant of Letters of Administration as an agent of his son, he lacks locus standi to maintain this petition for grant of Letters of Administration. Therefore, he would submit that the Learned Judge erred in rendering the finding that the plaintiff had locus standi to file the present Testementory Original suit and further finding that the Will is genuine also is liable to be upturned by this Court.

 

8.Mr.G. Raj Kumar, Learned Counsel appearing for the respondent would contend that the Will is a Holographic Will, the same has been duly proved by examining one of the attesting witnesses. The attesting witness PW.2 was a neighbour and as such was a natural witness to the Will and he is a retired Government servant who held a responsible position and who did not have any interest otherwise in the matter and therefore, there was no occasion to doubt his testimony and he has categorically deposed that the Testator wrote and signed the Will in his presence and the other attesting witnesses and all the three of them have signed in the presence of other two. He would further submit the attempt of the defendant to plead forgery is bald one and the plaintiff herein had pleaded about the Will at the very first instance in the partition suit itself. Only because of the displacement of the original Will by the erstwhile counsel, there was a delay in filing the application for grant Letters of Administration and the same cannot be taken as undue advantage by the defendant herein, to claim a right in the property, while it was not the wish of the Testator. He would further submit that contention of the Learned Counsel for the Appellant regarding the locus standi must  fail in view of the Section 234 of the Indian Succession Act, 1925.

 

9.We have perused the records and material evidence on record, after hearing the Learned Counsel appearing on either side, the following questions arise to be decided in the present appeal.

  1. i) Whether or not the finding of the Learned Judge that the Will of the Testator dated 13.12.2000 as genuine, is correct?

 

  1. ii) Whether or not the application for Letters of Administration, which was later converted as Testamontery Original Suit, is liable to be dismissed for want of locus standi of the plaintiff viz., Mr.R.Parathasarathy?

 

Question No.1

10.At the  very first instance while filing the written statement in O.S.No.4366 of 2007 itself, in paragraph No.3 of the written statement, the plaintiff herein had disclosed about the Will dated 13.02.2000 including the fact that he and his mother are given a life estate and that finally the property is bequeathed on his son / Mr.Ashok Kumar. It is in this context, the Learned Judge accepted the reasons given by the plaintiff that immediately after the suit, the plaintiff handed over the original Will to the erstwhile counsel, who misplaced the Will in their office and only thereafter the entire case papers pertaining to the OP.SRNo.3559 of 2010 was traced and then the Original Petition was filed in a proper form in the year 2013. Therefore, the delay by itself doesn’t raise any suspicion. Further, even though the defendant had filed an application for comparing the signature in the Will, in the absence of contemporaneous signature, such an exercise of obtaining expert findings could not be undertaken.

 

11.Under these circumstances, the Learned Judge by himself looking into the Ex.A1 Holographic Will, coupled with the unimpeachable evidence of the attesting witness namely PW.2, had found that the Will to be a genuine. On a careful perusal of the material evidence on record, first, the Will is duly proved and passes the ‘proof of Will’ scruitiny as laid down by the Hon’ble Supreme Court of India in Janki Narayan Bhoir -Vs- Narayan Namdeo Kadam1, thereby complywing the requirements of Section 68 of the Evidence Act and Section 63 of the Indian Sucession Act,  as the Original Will is produced, and  the attesting witness is examined as PW-2, who has identified his signature and that of the testator and deposed that he and the otherwitness saw the testator signing the Will and that all three of them signed in the presence of the other two, witnessing them duly subscribing their name. Apart from proof of execution of Will, the Hon’ble Suprme Court of India, in H. Venkatachala Iyer -Vs- B.N. Thimmarajamma and others2 has in paragraphs 19-21, has laid two other requirements, (a) that the propounder should let in satisfactory evidence that Will was signed by the testator, that the testator was at the relevent time was in a sound and disposing state of mind, that he understood the nature and effect of dispositions and put his signature to the document of his own free will; (b) If there are any suspicious circumstances surrounding the Will, the same has to be dispelled and has also broadly explained what factors would amount to suspicious cricumstances. In this case, there is no pleading as to the state of mind or capacity of the testatotor nor there is any plea as to the suspcious cirumstances, but the plea is one of total forgery. Once the said plea fails and that the Holographic Will is found to be executed by the testator, there is no difficulty in holding that the Will is genuinue. Therefore, in our considered view that the Learned Judge has rightly come to the said conclusion and accordingly the above Question No.1 is answered.

 

Question No.2

12.As far as the plea regarding the locus standi is concerned, the Learned Judge, answered the same by considering the recitals of the Will that when the ultimate beneficiary is the son of the plaintiff, it can be construed that he can be acting on behalf of the son. It is further held that the son of the plaintiff was living abroad, considering  Section 243 of the Indian Succession Act, that the Letters of Administration can be granted to the attorney or an agent, it has to be construed that the father is acting on behalf of his son.  The Learned Counsel for the Appellant would contend that no such construction should be permitted in the absence of any specific averments to that effect in the Original Petition and in the absence of any Power of Attorney document executed by the son in favour of his father and the petition should be dismissed. We reject the submissions of the Learned Counsel for the Appellant for the following reasons:-

  1. i) the defendant in her written statement dated 24.02.2016 has not pleaded so. Therefore, the question of locus standi is being raised without any pleading.
  2. ii) even assuming that plea can be raised as a legal question, still, it cannot be countenanced.  Part IX of the Indian Succession Act, 1925, deals with the grant of probate and Letters of Administration.  Section 217 lays down that the grant of (1)probate and (2)Letters of Administration with Will annexed and the grant of (3) Letters of Administration of the assets of the deceased in case of intestate succession, shall be in accordance with the provisions contained in Part IX.

 

13.Section 222 of the Act, lays down that Probate will be granted only to the Executor appointed by the Will. It is further laid down that appointment may be express or by necessary implication. The Illustration  to the said Section clearly states that if any person is appointed as ‘residuary legatee’ that would amount to appointment of an executor by implication. In  the instant case, there is no executor appointed in the Will nor there is  any residuary legatee.

 

14.This situation is governed by Section 234 of the Act. It is useful to extract  Section 234 of the said Act hereunder:-

“234. Grant of administration where no executor, nor residuary legatee nor representative of such legatee: When there is no executor and no residuary legatee or representative of a residuary legatee, or he declines or is incapable to act, or cannot be found, the person or persons who would be entitled to the administration of the estate of the deceased if he had died intestate, or any other legatee having a beneficial interest, or a creditor, may be admitted to prove the Will, and letters of administration may be granted to him or them accordingly.” (Emphasis supplied)

 

15.Therefore, it would be clear that where there is no executor or  residuary legatee, any person, who could be entitled to the administration of the estate, if the deceased had died as intestate or any other legatee having beneficial interest can both apply, prove the Will and Letters of Administration may be granted to such person. In this case, firstly,  if the Will is not there the plaintiff being a son would be entitled to apply for Letters of Administration and therefore he has locus standi.

 

  1. Secondly, on a careful perusal of the recitals of the Will, which is extracted below, would also make it so clear that the plaintiff is given a limited life estate and as such is  a legatee having a beneficial interest. The Will reads as follows :-

“vdJ fhyj;Jf;F gpd; me;j ,y;yj;ij vd; kidtp fz;zk;khSk;. kfDk;. mtdJ FLk;gj;jhUk; mDgtpj;J tuntz;oaJ/ mtu; brhj;jpd; ngupy; ve;jtpj tpy;y’;fj;ija[k; Vw;gLj;jf;TlhJ/

vd; kidtp fhyj;Jf;Fg; gpwF me;j ,y;yk; vd; kfd; ghh;j;jhrhujp kfdhd mjhtJ vd; ngud; mnrhf; Fkhu;f;F me;j rfy ghj;jpa’;fs; clDk; nru ntz;oaJ/”

 

17.Therefore, the plaintiff, has locus standi also as a legatee having beneficial interest . Thus, for the above said reasons and also for the reason given by the Learned Judge that when the son is the ultimate beneficiary who is

abroad and that the father can be construed as acting on behalf of the son, we hold that the plaintiff had locus standi to file the present application for grant of Letters of Administration and accordingly, we answer the Question No.2.

 

18.The Learned Judge has framed two issues in the above Testamentary Original Suit, they are:

  1. i) Whether the Will dated 13.02.2000 is executed      by G.Ramasamy is true and genuine?
  2. ii) To what other reliefs, the plaintiff is entitled?

The Learned Judge has answered the first issue in the affirmative and found the Will as true and genuine. For the reasons and decisions recorded supra, we affirm the finding of the Learned Judge regarding this issue. In respect of the issue number two, the Learned Judge has granted Letters of Administration having the effect limited to the State of Tamil Nadu in favour of the plaintiff in respect of the Will dated 13.02.2000, until the petitioner’s son obtain Letters of Administration and he has directed the plaintiff duly administer the estate of the deceased and to execute a surety bond for a sum of Rs.25,000/- and he has directed to prove the true and correct accounts once in a year. We affirm all the reliefs granted by the Learned Judge as under the second issue also while clarifying that it is not mandatory for petitioner’s son to once again apply for letters of administration as we have found the Will to be true and genuine and already the title being vested in him and the possessory title will vest after the life estate is given to the petitioner.

 

19.Thus, we find that there are no merits in the appeal and the appeal stands dismissed. However, there will be no order as to costs. Consequently, the connected miscellaneous petition is closed.

 

(T.R.J.,)    (D.B.C.J.,)

                                                                15.11.2021

Index : yes

Speaking order

 

klt

 

 

T.RAJA, J.

AND

D.BHARATHA CHAKRAVARTHY, J.

 

klt

 

 

 

To

 

The Sub Assistant Registrar, (Original Side),

High Court, Madras.

 

 

 

 

 

O.S.A.No.368 of 2018

and

CMP.No.15802 of 2018

 

 

 

 

 

 

 

 

 

15.11.2021

1    2003 2 SCC 91

2    AIR 1959 SC 443

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