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Judgment
M. Jeyapaul, J.—The plaintiffs herein originally filed the petition under Sections 232 255 and 276 of the Indian Succession Act, 1925
seeking issuance of letters of administration. As respondents 1 to 4 filed caveat, the petition was converted into Testamentary Original Suit.
The plaintiffs have contended that S. Srinivasan executed his last Will and Testament on 10.1.1994 and registered the same in the office of the
Sub Registrar, Anna Nagar. No one was appointed as executor under the said Will. The Testator died on 23.1.1994 at No. 30, Vellala Street,
Aminjikarai, Chennai. The parents of the deceased Srinivasan predeceased him. His only wife also departed him immediately after the marriage.
Therefore, the deceased Srinivasan had no issues till his death. The wife of the deceased by name S. Thulasi Bai died subsequently on 27.7.2004.
One of the attesting witnesses S. Ganesan also died on 27.4.1999 itself. Inspite of diligent efforts, the plaintiffs could not locate the other attesting
witness to the Will. The plaintiffs are the Testator''s first and second brother''s grand sons. The defendants are none other than the grandsons of the
second brother of the Testator. The defendant also have been provided with properties under the Will. Thus, they are also beneficiaries under the
Will. The plaintiffs were not aware of the position of law that they should obtain letters of administration. They came to know of the legal position
only when the Nationalised Bank and Housing Society, whom they approached to raise housing loan in order to develop the vacant site, informed
them of the necessity to obtain letters of administration. Therefore, the delay has occasioned in filing the petition. The plaintiffs pray that letters of
administration may be issued to them.
Defendants 1 to 4 have contended that Srinivasan did not die on 23.1.1994 at door No. 30, Vellala Street, Aminijikarai, Chennai. He died in a
private hospital at Shenoy Nagar, Chennai-30. The Will was prepared at the instigation of S. Ganesan without knowledge and consent of the
deceased who was actually not in a sound state of mind. The said Srinivasan was actually under coma. It is not true to say that the wife of the
deceased deserted him immediately after the marriage. Thulasi Bai, the wife of the Testator took care of him in the hospital during the period of his
illness. If the Will was genuinely prepared and executed, it would have been brought to the notice of the concerned persons immediately after the
death of Srinivasan. The Will was obtained under duress and coercion without explaining to the Testator about the consequence of the Will. The
delay of eleven years in seeking the letters of administration is nothing but wilful and wanton. Therefore, the defendants pray that the suit may be
dismissed.
The following issues were framed for determination:
Whether the Will executed by late S. Srinivasan is true, genuine and valid.
Whether the Will was obtained under duress and coercion while the Testator was not in a sound state of mind.
Whether the plaintiffs are entitled for letters of administration.
On the side of the plaintiffs, the second plaintiff was examined as PW1 and one Kanniappan was examined as PW2 and Exs.A1 to A5 were
marked. On the side of the defendants, fourth defendant was examined as DW1, but, no document was marked on their side.
Issues 1 to 3: The signature of the Testator Srinivasan in the Will purportedly executed by him was admitted by the defendant. It is also an
admitted fact that the wife of the Testator by name Thulasi Bai died on 27.7.2004 and one of the attestors by name Ganesan also died on
27.4.1999. The death certificate of Thulasi Bai, Ex.A3 and the death certificate of Ganesan, Ex.A4 would also establish that they had passed
away. The Testator, as per the death certificate, Ex.A2, has breathed his last on 23.1.1994 at 2.00 pm.
Learned Counsel for the plaintiff would subnet that the plaintiffs and the defendants who are the legal heirs of the Testator have been provided
with shares in the properties of the Testator under the Will, Ex.A1. As one of the attestors to the Will was dead and the whereabouts of the other
attestor was not known inspite of the best efforts of the propounders, PW2 who was conversant with the signature of the deceased attestor was
examined to prove the execution of the Will. PW1 has spoken to the disposing state of mind of the Testator. There is no contra evidence to show
that the Testator was in coma and was coerced to execute the Will. The plaintiffs have proved the Will and therefore, they are entitled to letters of
administration, he submits.
Per contra, learned Counsel for the defendants would submit that the Testator passed away within 13 days from the date of the execution of the
Will. The fact remains that he had taken treatment in the hospital. The heavy onus on the plaintiffs to establish the sound and disposing statement of
the Testator was not discharged. The plaintiffs should have, in all fairness, examined the scribe of the document in the absence of the attestors to
the Will. PW2 was not known to the deceased Ganesan, one of the attestors to the Will. Therefore, the plaintiffs have not established the execution
and attestation of the Will.
Though the defendants have set up a plea in the written statement that the Testator died at a private hospital located in Shenoy Nagar, Chennai,
DW1 has categorically admitted in his cross examination to the effect that the deceased passed away at home after he was brought from the
hospital. Very fairly, the Testator has referred to the fact in the Will that he proceeded to the Registrar''s office from the hospital as inpatient for the
purpose of execution and registration of the Will. The very fact that he was discharged from the hospital and died at home after 13 days from the
date of the execution of the Will would go to belie the version of the defendants that the Testator was in coma at the time when the document was
executed by him. The defendants have come out with a self-contradictory version to the effect that the Testator was in coma and at the same time,
Mr. Ganesan, one of the attestors to the document coerced him to execute the Will. The Will, Ex.A1 executed by the Testator is found to be a
registered document. Firstly, if the Testator was in coma in the hospital, he could not have proceeded to the Registrar''s office for registering the
Will. The coercion alleged to have been applied to the Testator for the purpose of execution of the Will will not operate effectively on a person
who was in coma. Even assuming for the sake of argument that Ganesan had assisted the Testator by participating in the preparation of the Will,
that by itself is not sufficient to taint the Will executed by the Testator. The court cannot forget the fact that the Testator, who was left in the lurch
by his wife and not blessed with any issue, chose to fairly distribute all his properties to the grandsons and daughter of his brothers who are the
only legal heirs. It is not as if the defendants were deprived of their share in the properties. One cannot apportion the properties using a golden
scale. There might have been some disproportionate allotment of property by the Testator, of course, depending upon the love and affection
showered by each and every one of the beneficiaries. But, that cannot be a ground to reject the Will duly executed by the Testator. If at all
Ganesan had coerced the Testator to execute the Will, he would have seen that the defendants are deprived of their share in the properties of the
Testator. The fair distribution of the properties amongst of the heirs of the Testator speaks volumes of the balanced mind of the Testator.
Coming to the attestation part of the Will, it is an admitted fact that one of the attestors by name Ganesan had already passed away. The
consistent case of the plaintiffs is that the whereabouts of Mohan, the other attesting witness is not known. There was no cross-examination on the
side of the defendants questioning the veracity of such statement made by PW1 during the course of evidence. PW2, who was conversant with the
signature of Ganesan through the letters he had addressed to his deceased father, has identified the signature of Ganesan in the Will, Ex.A1.
In the background of the evidence available on record, the court finds that no doubt has arisen as to the disposing state of mind of the Testator.
Though the defendants alleged that the wife of the Testator assisted him all along during his treatment in the hospital, the same has not been
established by them. The Testator has categorically spoken to the fact in the Will that his wife deserted him leaving him all alone without any issue.
Further, the disposition also does not appear to be unnatural inasmuch as the wife of the Testator had already deserted him leaving him in the lurch
without any issue. The court finds that the execution and attestation of the Will are established by the plaintiffs. It is found that the Testator has
executed the Will in a sound and disposing state of mind. The issues are answered accordingly.
In the result, the suit is decreed. The plaintiffs are entitled to letters of administration as prayed for. Letters of Administration is ordered to be
issued in favour of the plaintiffs herein.
The plaintiffs are directed to take inventory of the assets of the deceased S. Srinivasan 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.
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.