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P. KABALI .. PLAINTIFF versus D. VELU

High Court of Madras

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P. Kabali .. Plaintiff v. D. Velu - T.O.S.NO.15 OF 2000 [2002] RD-TN 393 (24 June 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 24/06/2002

CORAM

THE HONOURABLE MR.JUSTICE M. CHOCKALINGAM

T.O.S.NO.15 OF 2000

AND

TR.C.S.NO.402 OF 2001

T.O.S.NO.15 OF 2000

P. Kabali .. Plaintiff Vs.

1.D. Velu

2. D. Perumal

3. D. Mala

4. D. Meenakshi

5. K. Devaraj Gramani

6. K. Chinnaponnu

7. M. Shakunthala

8. K. Thangavelu

9. K. Chandra

10.V. Sarada

11. D. Murthy

(defendants 5 to 11 are

impleaded as per order

dt.11.12.2000 in

A.No.4857 of 2000) .. Defendants TR.C.S.NO.402 OF 2001

1. Minor Ganesh

rep. By his father and natural

guardian, Sekar

2. Kapali. .. Plaintiffs Vs.

1. D. Velu

2. D. Perumal

3. D. Mala

4. D. Meenakshi .. Defendants For Plaintiffs : Mr.V.Lakshmi Narayanan

For Defendants : Mr. K.S.Ganesh Babu

:COMMON JUDGMENT



The suit in TOS No.15 of 2000 is filed seeking issuance of a probate in favour of the plaintiff in respect of the Will executed by Vaduvambal on 17.2.1994.

2. The suit in Tr.C.S.No.402 of 2001 is filed for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit scheduled mentioned property and other reliefs.

3. The plaint averments in TOS No.15 of 2000 are as follows: The deceased Vaduvambal died on 26.11.1998 at Door No.37, Apparsamy Koil Street, Mylapore, Chennai-4. She was possessed the said house property and a vacant house site at Plot No.210 B, Srinivasa Nagar at Oragadam village, Sriperumbudur Taluk to the extent of 7800 Sq.ft. A last Will and testament of Vaduvambal was executed by her on 17.2.19 94 and the same was registered as Document No.26/94 on the file of the Sub Registrar Office, Mylapore. The plaintiff Kapali is the executor appointed in the said Will. The Vaduvambal has no issues. Vaduvambal and one Angammal are the sisters and one Mohanambal is the daughter of Angammal. Mohanambal has begotten two sons, namely, P. Kapali and P. Sekar. Vaduvambal has maintained the entire family of Kapali and Sekarr under the same roof by living together. The deceased bequeathed 2/3rd share in the property at D.No.37, Apparsami Koil Street to her great grandson Ganesh and the remaining 1/3rd share bequeathed to her grandson P. Kapali absolutely. It is also provided in the Will that since the said great grandson Ganesh is a minor, the said P. Kapali was entrusted with the responsibilities to maintain the family till the minor Ganesh attains the age of majority and thereafter the said 2/3es share of Ganesh shall be handed over to him by way of delivery of possession. The vacant plot at Oragadam village was bequeathed by the deceased in favour of the great grand daughters Hemelatha and Malarvizhi absolutely in order to have with equal shares. The plaintiff P. Kapali was entrusted with the management of the property till the minors obtained majority. The respondents are neither having interest in the Will property nor the beneficiaries of the Will. Hence, the suit has to be decreed as prayed for.

4. The defendants have filed their written statement stating that the alleged Will, dated 17.2.1994 was not a genuine one; that the same was not executed and registered by the said Vaduvambal; that the plaintiff's mother was not the daughter of Angammal and the plaintiff's mother was Parvathi; that the said Vaduvambal died intestate on 26.11.1998 and her husband predeceased to her in the year 1958; that she had no issues; that as the husband of the deceased C.Vaduvambal died in the year 1958, all her class II legal heirs were residing and staying with her in the suit schedule property and the marriage and other functions of the defendants had been performed by her through her brother Devaraj Gramani, who was elder in the male in their family; that the plaintiff and his brother Sekar were merely a tenant in the property and taking advantage of her loneliness and other circumstances created the false and fabricated document of alleged Will of the deceased Vaduvambal; that the alleged Will was not instructed by Vaduvambal to draft; that if the Vaduvambal was instructed to draft the said Will the relationships of the defendants and other legal heirs would have been disclosed and the said Vaduvambal was fell very sick since 19 93 and she had been admitted in the hospital during the said period several time for treatment; that the alleged Will was a created one, which was either executed or registered by the said Vaduvambal which would be evidence from the difference in the left hand thumb impression affixed in the end of each page of the said Will and rear side of the first page of the said Will and therefore, the same may be sent to the Forensic Department for report; that in the said Will, it has been given that the same was drafted by one A.Ramalingam, Advocate and the registered letter sent by the first defendant to the said address, mentioned in the Will, was returned unserved with an endorsement " No such a street in Madras 88"; that Angammal was the second wife of Mr.Kanniyappan Gramani and Mohanambal was born to the said Kanniayappan through his first wife Parvathi and Angammal had her own 6 children; that the defendant denied that the plaintiff has taken care of the deceased Vaduvambal; that the plaintiff and Sekar were tenant in the property with Vaduvambal and there was no blood relationships or any other legal relationships among the dec eased Vaduvambal and the plaintiff, Sekar and their childrens as alleged in the plaint and as well as in the Will; that there was no merit in the suit and the same is liable to be dismissed with costs.

5. The plaint averments in Tr.C.S.No.402 of 2001 are as follows: The suit schedule mentioned property initially belonged to the first plaintiffs grand father, Thiru Chinnappa Gramani. Chinnappa gramani had been in possession and enjoyment of the property pursuant to the purchase on 8.3.1926 for a sum of Rs.100/- from one Appadurai Mudaliar and it was registered. The said Chinnappa Gramani gave away the suit schedule property by way of settlement to his wife Vaduvambal by way of a registered settlement deed 5.5.1956. On the very day, the possession of the property was handed over to Vaduvambal. She also had the revenue records mutated and the Corporation of Madras recognized her as an occupier and so also was the case with respect to the Urban Land Tax Authorities. The Revenue Department had further recognized the right of Vaduvambal to be in possession and enjoyment of the property. Vaduvambal had exercised her right over the property by mortgaging the same on two occasions. She had been enjoying the property absolutely without any encumbrance whatsoever. The first plaintiff is the son born through the adopted son of Vaduvambal. Out of love and affection to the minor, she executed a Will on 17.2.1994 and bequeathed the entire suit schedule property to him and she passed away on 26.11 .1998. As long as Vaduvambal was alive, it was the 2nd plaintiff who used to collect the rents and handed it over to her. The 2nd plaintiff also used to pay the taxes to the Corporation of Madras. The defendants are the children of the younger brother of Vaduvambal. As long as Vaduvambal was alive, none of the defendants came anywhere near her and it was always the plaintiffs who were looking after her needs. After the death of Chinnappa Gounder , Vaduvambal was residing only in the suit schedule property along with the 2nd plaintiff's mother Mohanambal. After the death of Vaduvambal, the defendants with an intention to grab the property had denied the Will written by her and file the caveat before this court challenging the Will. Consequently, the probate proceedings have been converted into a testamentary original suit and the same is pending before this court. The plaintiffs have been collecting the rents from that property by letting out the same for rent and these tenants are also in favour of the plaintiffs. The defendants with the help of goondas thr eatened the tenants that they should not pay rents to the plaintiffs and that they should pay the same to them. The plaintiffs utilized the services of the persons who are residing near by to send away the goondas. The first defendant being a supplier of sound and light equipment to political parties has openly threatened to forcibly disposes the plaintiffs and has further stated that the police will not take any action on account of their political support. The suit is not barred by lack of limitation, and hence, the suit has got to be decreed as prayed for.

6. The defendants filed written statement stating that they denied the allegation in the plaint that Chinnappa Gramani is the grand father of the first plaintiff; that he died issueless; that he had purchased the property; that the chinnappa Gramani had settled his property to her wife, i.e. Vaduvambal on 5.3.1956, since then she had been in possession and enjoyment of the same; that the first plaintiff is the son born through the adopted son of the deceased Vaduvambal is false; that the second plaintiff used to collect the rents and paid the Corporation Taxes as only on the capacity of an agent of the landlord; that the defendants herein are the sons and daughters of younger brother of the deceased Vaduvambal, but they denied the allegation that they never come anywhere near the deceased Vaduvambal as long as she was alive; that the second plaintiff and the first plaintiff's father never allowed any of the relatives of Vaduvambal and also the defendants herein; that the defendants denied the allegation in the plaint that the defendants with an intention to grab the property deny the Will written by the deceased; that caveat petition has been filed by them before this Court; that after the death of Vaduvambal rents have been collecting from the tenants; that they denied that the tenants have attorned the tenancy of the plaintiffs as a landlord, but the tenant have paid the rents only on the capacity of an agent of the landlord; the plaintiffs took advantages that the Vaduvambal stayed with them forced her to execute a Will, while she was not in a full state of mind by getting thumb impression; that the defendant denied the allegation that the first defendant connected with the political circle and sent the goondas; that the plaintiffs themselves admit that the caveat has been filed claiming right and the same is pending, this clearly shows that the defendants as a class II legal heirs of the deceased Vaduvambal are entitled to claim right over the suit property; that on the other hand, the plaintiffs are not entitled to claim right unless and until they get the probate or Letters of administration, and hence, the suit has got to be dismissed with costs.

7. On the above pleadings, the following issues were framed: TOS No.15 of 2000:

1. Whether the Will dated 17.02.1994 alleged to have been executed by Vaduvambal is true, valid and genuine and binding on the parties? 2. To what relief the plaintiff is entitled to? Tr.C.S.No.402 of 2001:

1. Whether the plaintiffs are entitled to permanent injunction for the reasons stated in the plaint as asked for?

2. To what relief the plaintiffs are entitled to?

8. ISSUES 1 AND 2 IN BOTH THE SUITS: The plaintiff in TOS 15/00 has come forward with a request to probate a Will dated 17.2.1994 alleging that the same was executed by Vaduvambal in a good and disposing state of mind in the presence of two attesting witnesses; that it was duly registered also; and that he has been appointed as the executor under the Will, while the plaintiffs in TR.CS 402/01 have come forward with a request to grant a permanent injunction restraining the defendants therein from interfering with their peaceful possession and enjoyment of the suit property alleging that the defendants threatened the plaintiffs and their tenants of dispossession. The contesting defendants have resisted both the suits by stating that the said Will is not genuine; that the same was created and fabricated by the plaintiff and others; that they never interfered with the plaintiffs' peaceful possession and enjoyment of the suit property, and hence the request of the plaintiff has to be refused.

9. On the side of the plaintiff, P.Ws.1 to 3 were examined, and Exs.P1 to P16 were marked. On the side of the defendants, D.Ws.1 and 2 were examined, and Exs.D1 to D6 were marked.

10. Arguing for the plaintiff in both the suits, the learned Counsel would submit that the said Vaduvambal, wife of Chinnappa Gramani died on 26.11.1998; that she executed a Will on 17.2.1994 in a good and disposing state of mind and in the presence of two witnesses who were examined as P.Ws.2 and 3; that the said Will has also been registered on the very day; that the plaintiff Mr.Kapali, examined as P.W.1 has been appointed as the executor in the said Will; that the husband of the testatrix pre deceased her; that they had no issues; that the testatrix Vaduvambal had one sister by name Angammal; that Mohanambal was the daughter of the said Angammal; that she had two sons viz. Kapali and Sekar; that Sekar was brought up as adopted son of Vaduvambal; that during her life time, the said Vaduvambal had maintained the entire family of Kapali and Sekar; that all of them were living jointly in the will property viz. Door No.37, Apparsamy Koil Street, Mylapore, Chennai 4; that till the life time of Vaduvambal, the plaintiff Kapali and his brother with their family members took care of the said Vaduvambal during her hold age; that the Last Will and Testament of Vaduvambal has been marked as Ex.P1; that the same was registered in the Office of the Sub Registrar, Mylapore, Madras; that three persons viz. Madurai Veeran, V.Raghavan and Ponniah have subscribed their signatures as attesting witnesses in Ex.P1 document; that P.Ws.2 and 3 have categorically deposed as to the execution and attestation of the testament; that under the said Will she has bequeathed the said property to minor Ganesh, Son of the said Sekar, the younger brother of the plaintiff Kapali; that the plaintiff Kapali has been shown as the guardian of the said minor Ganesh; that it is pertinent to note that Kapali has also been appointed as the executor in the said Will; that during her life time, Vaduvambal created a simple mortgage on the suit property on 2.12.1970 by mortgaging the same in favour of Abiramapuram Fund Ltd; that the said original mortgage deed is marked as Ex. P2; that Ex.P3 is the original share certificate issued by the said Abiramapuram Fund Ltd. in the name of Vaduvambal for having created the said mortgage; that Ex.P4 is the original letter dated 7.11.70 written by Abiramapuram Fund Ltd to Vaduvambal asking her to name a nominee; that Ex.P5 is the original document dated 27.11.1970 executed by Vaduvambal nominating Sekar as the nominee in reply to Ex.P4 letter; that Ex.P6 is the original pass book issued by the said benefit fund, in which the said Sekar has been named as the nominee; that it is pertinent to note that Ex.P6 was issued shortly after the execution of Ex.P5 document by Vaduvambal; that in Ex.P6, she has given her relationship with the nominee Sekar as sister Angammal's grandson; that the plaintiff Kapali has filed Ex.P7 voters' card issued by the Chennai Corporation for the election held in 1973 wherein the names of the plaintiff Kapali, Vaduvambal along with the name of Mohanambal were shown as residing in the will property; that the marriage invitation card of Sekar is filed and marked as Ex.P8; that the Tamil Scholar M.P. Sivagnanam has sent a greeting message as found under Ex.P9; that on the occasion of the ear piercing ceremony of minor Ganesan, an invitation card as found under Ex.P10 was printed; that Vaduvambal had participated in the puberty function of the daughter of Sekar by name Hemalatha; that it is pertinent to note that P.W.2 one of the attesting witnesses has also participated in the said function; that Ex.P14 photographs will clearly reveal the closeness of Vaduvambal with the family of Sekar; that all these above facts were well known to the contesting defendants; that despite the same, they have brought forth a false defence; that when the peaceful possession of the plaintiffs minor Ganesh and Kapali and their family members was unlawfully interfered with by the defendants, the plaintiffs have filed a suit in O.S.4739 OF 1999 on the file of the City Civil Court , Madras, and the said suit has been transferred and taken on file in this court in Tr.CS 402/0 1; that in the said suit, the defendants Velu, Perumal, Mala and Meenakshi have filed their written statement; that a reading of the written statement would clearly reveal that they have not only had the knowledge of the Will, but also have admitted the execution of the same; that till the life time of the testatrix, she was collecting the rent for the property, and the plaintiffs with the members of their family, who were in the possession and enjoyment of the suit property, have been collecting the rents therefrom; that the defendants, who were to make rare visits of Vaduvambal during her life time, have come forward with the false defence to grab all her properties if possible, and thus, the plaintiffs have clearly proved the execution and attestation of Ex.P1 Will as required by law, and hence, the probate has got to be issued. So far as Tr.CS 402/01 is concerned, the learned counsel would submit that it is admitted by the defendants that the plaintiffs and their family members were in possession of the property, and the averments made in the written statement and the false contentions put forth by the defendants would clearly show that the defendants were attempting to make unlawful interference in the peaceful possession and enjoyment of the property by the plaintiffs and their family members, and hence, a permanent injunction has got to be granted in favour of the plaintiffs therein.

11. Countering to the contentions of the plaintiffs' side, the learned counsel appearing for the contesting defendants would argue that Ex.P1 document is not genuine; that it was one fabricated and concocted by the plaintiff Kapali and his close relations; that Mohanambal and her children were the tenants of Vaduvambal in a part of the suit property; that Vaduvambal had no occasion to execute any such will much less Ex.P1 Will; that Kanniappa Gramani and Muthammal @ Pappammal had seven children; that D.W.1 who is the fifth defendant in the testamentary proceedings is one of the sons of the said couple; that one of the daughters by name Angammal had eight issues, who are defendants 6 to 10 and also Gnanambal, Palaniappan and Durai; that Vaduvambal had no issues, and her husband Chinnappa Gramani predeceased her in 19 58; that from the evidence of D.W.1 Devaraj, it would be clear that he was residing with his sister Vaduvambal and after his marriage, he started living separately; that it is true that Vaduvambal brought up a male child of Gnanambal and Parthasarathy by name Sekar; that the said Sekar was born in 1960 and he died in 1972; that Vaduvambal never adopted or brought up either Kapali or Sekar, as alleged by the plaintiff; that all the children of Vaduvambal's brother continued to reside with Vaduvambal in the suit property; that the marriages of the issues of Angammal and her younger brother were also performed by Vaduvambal; that Vaduvambal's brother examined as DW1 and Vaduvambal's brother's son Velu examined as DW1 have categorically deposed that Vaduvambal did not execute any Will and had no occasion to execute a Will also; that Vaduvambal fell sick, and she was hospitalised for her illness for a long time; that during her last days, she was taken care of by Dakshinamoorthy's wife who was residing with her and also by her children; that the plaintiff and his family members who lived as tenants in the family, took undue advantage of the situation and have created Ex.P1 Will; that from the evidence of the defendants' witnesses, it would be clear that she executed a Will in the year 1970 in favour of Sekar, who was the son of Angammal; that it is pertinent to note that Sekar died in 1972; and that Vaduvambal did not execute any Will thereafter, and the properties were to devolve upon her natural heirs, since she died intestate. Added further, the learned counsel that Ex.P1 document has not been proved, as required by law; that from the evidence of PW1 it would be clear that he was not present at the time of the execution of the document; that it is pertinent to note that PW2 has deposed that Vaduvambal affixed her thumb impression in Ex.P1 document in her residence at No.37, Apparsamy Koil Street, Mylapore, Madras, but an affidavit sworn in by him has been filed, wherein it is stated that the document was executed by Vaduvambal at the Sub Registrar's Office, and this would clearly indicate the falsity of the evidence of PW2; that the discrepancy in the evidence of Pws2 and 3 regarding the factum of execution and attestation of the document would clearly reveal that they could not have been present at the time of the alleged execution and attestation of the document, and thus, there are so many suspicious circumstances attendant on the execution and attestation, but the plaintiff has thoroughly failed to dispel those suspicious circumstances, and hence the Will has not been proved. The learned Counsel for the defendants would further submit that so far as Tr.CS 402/01 is concerned, the defendants undertook not to interfere with the plaintiffs' peaceful possession and enjoyment of the suit property, except by due process of law, and he has also made an endorsement to that effect in the plaint.

12. Admittedly, the testatrix Vaduvambal, wife of Chinnappa Gramani was the owner of the will mentioned property situated in Door No.37, Apparsamy Koil Street, Mylapore, Madras. The said property devolved on her husband Chinnappa Gramani by way of ed of settlement. The said Chinnappa Gramani and Vaduvambal had no issues. On the death of Chinnappa Gramani in 1958, the property devolved upon his sole heir viz. his wife Vaduvambal, and she became the owner of the property. Till her life time, she was residing in the said property.

13. The specific case of the propounder of the Will viz. Kapali, the plaintiff, is that Vaduvambal executed Ex.P1 Will on 17.2.1994 in the presence of two attesting witnesses viz. Madurai Veeran, Raghavan and Ponniah, bequeathing the said immovable property in favour of minor Ganesh, son of Sekar, who is the younger brother of the plaintiff Kapali, and the plaintiff Kapali has been shown as a guardian for the minor and has also been appointed as the executor. From the evidence of the plaintiff Kapali, propounder of the Will, examined as P.W.1, it would be clear that he was not present at the time of the preparation, execution, attestation and registration of the document as found under Ex.P1. In order to prove the execution and attestation of Ex.P1 testament, the plaintiff Kapali has examined P.W.2 Mr.Madurai Veeran and P.W.3 Ponniah. P.W.2 has deposed that in the house of Vaduvambal Kapali and Sekar along with their family were living as a joint family; that he signed as the second attesting witness in Ex.P1 Will; that she executed the document in her residence at No.37, Apparsamy Koil Street, Mylapore; that at that time, it was read aloud by an elderly person to Vaduvambal and others; that she affixed her thumb impression and then Ponnaiyan set his signature in Ex.P1 Will, and thereafter he signed in the document; that at the time of execution of Ex.P1 Will, himself and the other attesting witness saw Vaduvambal first affixing her thumb impression; and that after the execution of the document, Vaduvambal, himself, and the elderly person went to the Registrar's Office on the same day. P.W.3 has deposed that he signed in Ex.P1 Will as the first attesting witness; that the said Will was executed in the house of Vaduvambal; that when he went to Vaduvambal's house, she was present along with Madurai Veeran, the other attesting witness; that he saw Vaduvambal affixing her thumb impression in the Will; that Vaduvambal also saw him attesting the document; and that the other attesting witness also signed in his presence and in the presence of the testatrix. From the evidence of Pws 2 and 3 it would be clear that Ex.P1 document was executed by Vaduvambal by affixing her thumb impression in the presence of those witnesses, and those witnesses also subscribed their signature in Ex.P1 document as attesting witnesses in her presence on 17.2.1994 at her residence situated in Door No.37, Apparsamy Koil Street, Mylapore, Madras. The evidence of P. Ws.2 and 3 would also make it clear that the testatrix Vaduvambal was in a sound and disposing state of mind and health at the time of execution of Ex.P1 document. Nothing is available to hold contra or to suggest that she was not possessed of the mental faculties or was of unsound mind at the time of execution of the document.

14. The propounder of Ex.P1 testament examined as P.W.1 has deposed that himself and his younger brother Sekar were the children of Mohanambal; that their mother Mohanambal was the daughter of Angammal, the younger sister of the testatrix; that all of them lived with Vaduvambal under the same roof situated in Door No.37, Apparsamy Koil Street, Madras; that the said Vaduvambal treated his younger brother Sekar as the adopted son; that during the old age of the testatrix, they exercised all the care over her, and thus, under such circumstances, the testatrix has bequeathed the immovable properties owned by her in favour of the minor Ganesh, son of the said Sekar. D.Ws.1 and 2 have categorically admitted that Mohanambal and her family members were living in the same property viz. Door No.37, Apparsamy Koil Street, Mylapore, Madras, but only as tenants. Thus, it would be clear that they were living with Vaduvambal in the Will mentioned property for a long time and during the life time of Vaduvambal, and they continued to be in possession of the property even today. From the entries made in Ex.P7 voters' card and Ex.P11 family card, it would be abundantly clear that Vaduvambal, Sekar and his family members all lived together in Door No.37, Apparsamy Koil Street, Mylapore, Madras. Admittedly, Vaduvambal has mortgaged the said house property with Abiramapuram Fund Limited by executing a mortgage deed on 2.12.1970 under Ex.P2, wherein DW2 has identified the said Vaduvambal at the time of the registration as one of the identifying witnesses. The said Abiramapuram Fund Limited has issued a share certificate in favour of Vaduvambal as found under Ex.P3. Following the same, the said financial institution has issued a letter on 7.11.1970 calling upon her to name her nominee. At that juncture, Vaduvambal has executed a Will on 27.11.197 0 as found under Ex.P5. It remains to be stated that this fact of execution of a Will by Vaduvambal in favour of Sekar in the year 1970 is well admitted by D.W.1. Under Ex.P6, a pass book issued by the said Abiramapuram Fund Limited to Vaduvambal in respect of her Recurring Deposit, her nominee is described as Sekar, 10 years, son of Parthasarathy, and the relationship is shown as sister Angammal's grandson.

15. It is contended by the contesting defendants that it is true that the said Angammal brought a male born of Gnanambal and Parthasarathy, and the said child was named as Sekar, but the said Sekar died in 1972, and thus, the said Sekar, who is referred to in the documents was entirely a different person, and in order to grab the property of Vaduvambal, the plaintiff and his close relations have concocted a Will, as found under Ex.P1. The falsity of the defence is quite evident from the documentary evidence adduced by the plaintiff's side. Vaduvambal has made Sekar, aged about 10 years, who was the grandson of her sister Angammal, as her nominee in all the records, and it has also been so recorded in the registers with Abiramapuram Fund Limited. It is pertinent to note that the said document under Ex.P6 was issued by the said financial institution in the year 1970. It is also admitted by the defendants that she executed a Will in the year 1970 in favour of Sekar. In Ex.P8 invitation card in respect of the marriage of Sekar, scheduled to take place on 23.1.81, Sekar was described as the adopted son of Vaduvambal. It is pertinent to note that those documents have come into existence long prior to the execution of Ex. P1 Will dated 17.2.1994. The family card issued to Vaduvambal for the period 1998-2003 under Ex.P11, both Sekar and his children including minor Ganesan in whose favour the property has been bequeathed under Ex.P1 have been shown with their respective ages. All the above would clearly prove that the said Sekar who was the brother of the plaintiff Kapali, was the sister's grandson of the testatrix, and all were living together all along.

16. The very recitals found under Ex.P1 document would reflect that the said testament was an outcome of the free will and volition of the testatrix. The testatrix has exercised care to get the document registered the very day of execution viz. 17.2.1994. It remains to be stated that the testatrix has lived for a period of four years after the execution of Ex.P1 document. Had it been true that the document came into existence under suspicious circumst ances, as contended by the defendants, there was all possibility of the testatrix to revoke the same. But she has not done so. The contentions of the defendants' side that the evidence of PW2 and the affidavit filed by him vary in respect of the place of execution of Ex.P1 Will, and hence, it is doubtful whether Vaduvambal executed Ex.P1 document, cannot be accepted as one with force. It is not a case where the propounder is relying on the testimony of one of the attesting witnesses alone. The plaintiff has examined both the attesting witnesses. The court is unable to see any strong circumstance or reason to discredit the evidence adduced on the plaintiff's side. Under such circumstances, the defendants cannot be permitted to take advantage of a mistake that has crept in in the affidavit filed by one of the attesting witnesses viz. Madurai Veeran, examined as PW2. The Court is of the view that the evidence of the attesting witnesses to the document under Ex.P1 inspires the confidence of the Court. In this context, the decision of the Apex Court rendered by a Division Bench and reported in (2202) 2 SUPREME COURT CASES 85 (MADHUKAR D.SHENDE VS. TARABAI ABA SHEDAGE) is applicable to the present facts of the case. In the said decision of the Apex Court, it has been held as follows:

"The requirement of proof of a will is the same as any other document excepting that the evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the court either believes that the will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the will was duly executed by the testator, then the factum of execution of will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers.

The conscience of the court has to be satisfied by the propounder of the will adducing evidence so as to dispel any suspicious or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well-founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict - positive or negative. One who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court affirmatively that the testator did not know well the contents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the court would not return a finding of "not proved" merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance." In the instant case, it has to be necessarily held that the plaintiff Kapali has established the competence of the testator and execution of the will in the manner expected by law, and also satisfied the conscience of the court. The court is of the view that the propounder Kapali has dispelled all the suspicions or unnatural circumstances, put forth by the contestant opposing the Will; that he has proved that the testatrix did know well the contents of Ex.P1 Will and in sound disposing capacity executed the same; and that the Will dated 17.2.1 994 as found under Ex.P1 executed by Vaduvambal is true, valid and genuine and binding on the parties.

17. So far as Tr.C.S.402 of 2001 is concerned, the learned counsel for the defendants has made the following endorsement: "Defendants undertake not to disturb the possession of the suit property of the plaintiffs, except due process of law."

The said endorsement is recorded. In view of the same, the plaintiffs are entitled for grant of permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit property except by due process of law. The two issues in both the suits are answered accordingly.

18. In the result, TOS 15 of 2000 is decreed, as prayed for. Issue probate in favour of the plaintiff. There shall be no order as to the costs.

19. In the result, TR.CS 402 of 2001 is decreed, granting a permanent injunction restraining the defendants from interfering with the plaintiffs' peaceful possession and enjoyment of the suit property except by due process of law. The parties shall bear their own costs. Index: Yes

Internet: Yes

24-6-2002

Plaintiff's side Witnesses:

P.W.1 Mr.P.Kapali

P.W.2 Mr.Madurai Veeran

P.W.3 Mr.M.Ponniah

Defendants' side Witnesses:

D.W.1 Mr.K.Devaraj

D.W.2 Mr.D.Velu

Plaintiff's side Documents:

Ex.P1 17.2.1994 Original Will

P2 1.12.77 Ordinary mortgage loan bond P3 18.10.70 Share certificate in original

of the Abiramapuram Fund Ltd. P4 7.11.2000 Letter from Abiramapuram Fund Ltd. P5 27.11.70 Document executed by Vaduvambal

P6 Original Pass book

P7 1.4.73 Voters' Card

P8 Marriage invitation card of Sekar P9 21.1.81 Letter

P10 Invitation card regarding minor Ganesh P11 Xerox copy of Family ration card 1998 to 2003

P12 8.12.1999 Original death certificate

P13 Permission to erect a Tomb P14 Photograph during puberty function P15 Rent receipts from 5.11.98 to 10.7.99 P16 Xerox copy of ration card Defendants' side Documents:

Ex.D1 Affidavit of S.Madurai

D2 Invitation Card

D3 Marriage invitation card D4 Marriage invitation card D5 3.9.99 Xerox copy of letter

D6 Returned registered postal cover M.CHOCKALINGAM, J.

Judgment in

T.O.S.No.15 of 2000 and

Tr.C.S.No.402 of 2001


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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