Miss T.C. Ammini vs Moovender Colony Service Association

M. Jeyapaul, J.—The plaintiff originally filed a petition under Sections 232 and 276 of the Indian Succession Act, 1925 seeking grant of Letters of Administration. As the first defendant filed caveat, the petition was converted as Testamentary Original Suit. The second defendant was thereafter impleaded as a party to the proceedings.

The sum and substance of the averments in the plaint is as follows:

One Dhanamani alias Dhanamani Lakshmi was looked after by the plaintiff for about three years prior to her death on 19.5.1994. During the last period of one year, Mrs. Dhanamani retained the plaintiff to look after her day to day personal affairs. The plaintiff was treated by Dhanamani as her daughter. She informed the plaintiff that she had no brother or sister or nearer relative and that her father and husband had already died. Mrs. Dhanamani executed a Will on 3.5.1994 bequeathing her property bearing door No. 21/9, Moovender Colony, Chennai 600 033 to the plaintiff. Though Mrs. Dhanamani informed the plaintiff that she has lands at Vellore, those particulars are not known to the plaintiff. The plaintiff undertakes to duly administer the property and credits of the deceased Mrs. Dhanamani.

The first defendant has contended in the written statement that the Will was a concocted one. The attestors to the Will are close friends of the plaintiff. The plaintiff was working as servant maid in one or two flats of Moovender Colony. She was also a servant maid to the deceased Dhanamani. Mrs. Dhanamani has got a brother by name Annamalai. The plaintiff has created much hardship to the residents of Moovender Colony. The property was not sold to Mrs. Dhanamani by the Housing Board. Several installments are still due. The suit is bad for non-joinder of the legal heirs of the deceased Dhanamani and the Housing Board.

The second defendant would submit in his written statement that the deceased is none other than his father''s sister. It is false to state that the plaintiff was looking after the personal affairs of Dhanamani Ammal. The plaintiff was doing household work in the other flats including the flat of Dhanamani. The second defendant''s father used to meet his sister Dhanamani at Chennai and take care of her well being. It is utter false to state that Dhanamani died leaving no legal heirs. The second defendant has got several documentary proof to show that the second defendant is the sole legal heir of the deceased Dhanamani. Even before the second defendant and his father arrived at Moovender Colony on hearing the death of Dhanamani, the plaintiff had completed all the funeral formalities and they could not even see the face of the deceased Dhanamani. As the Housing Board had not yet executed the sale deed in favour of Dhanamani, she was not owning the flat in dispute at the time of execution of the Will. The Housing Board is still the owner of the flat. The Will is a rank forgery. Therefore, the second defendant also prays that the suit may be dismissed.

The following issues were framed for consideration:

i) Whether the deceased Dhanamani Lakshmi had executed the Will dated 3.5.1994 while she was in a sound disposing state of mind?

ii) Whether the plaintiff is entitled for issuance of a Letters of Administration?

Issues 1 and 2: On the side of the plaintiff, the plaintiff was examined as PW1 and one of the attestors to the Will by name G. Viswanathan was examined as PW2 and as many as fifteen documents were marked. On the side of the defendants, the representative of the first defendant was examined as DW1 and the second defendant was examined as DW2 and as many as nineteen documents were marked.

Learned Counsel for the plaintiff would submit that the evidence of PW1 establishes that the deceased Dhanamani was in a sound and disposing state of mind when she executed the Will, Ex.P2 bequeathing the property mentioned therein to the plaintiff. The second defendant is not the relative of the deceased Dhanamani. He has not established with satisfactory evidence that he was one of the legal heirs of Dhanamani. The first defendant has no locus standi to contest the suit as there was no caveatable interest in the lis laid by the plaintiff. The plaintiff has established that she took care of Dhanamani when she was under the dire necessity of assistance to take care of her well being. Therefore, the learned Counsel for the plaintiff would submit that the plaintiff is entitled to letters of administration.

Learned Counsel for the first defendant would contend that inasmuch as the Housing Board had not executed any sale deed in favour of Dhanamani, she cannot execute any Will bequeathing just the possibility of a right which would accrue to her in the event of the purchase of the property from the Housing Board. The tenor of the Will would go to show that it is only a settlement deed and not a Will. Therefore, he would submit that the plaintiff is not entitled to any relief as sought for.

Learned Counsel for the second defendant would contend that the voluminous documents filed on the side of the second defendant would establish that the second defendant is the only legal heir of the deceased Dhanamani. The plaintiff has filed the present suit suppressing all the material facts about the survival of the legal heirs of the deceased Dhanamani. Even as per the showing of the plaintiff, she had served under the deceased Dhanamani only for few months. No one in his or her sane condition would execute a Will bequeathing a prime property to a maid servant who served for about three months. There are a lot of suspicious circumstances surrounding the Will. Therefore, the plaintiff is not entitled to the relief as sought for.

The first and second defendants have categorically admitted in their written statement that the plaintiff worked as servant maid in the house of the deceased Dhanamani. The plaintiff would submit that during the last three months, she was with Dhanamani throughout the day and took care of her personal affairs. Such a version of PW1 was fortified by the evidence of an independent witness, PW2. PW2 is one of the attesting witnesses to the Will, Ex.P2. He has categorically deposed before the court that he saw the plaintiff in the house of the deceased Dhanamani. The evidence of PW2 that he, being a student of Psychology, used to discuss his subjects with Dhanamani who was a Professor of Psychology, is found to be completely believable. As a friend, he was called upon by the deceased Dhanamani to her residence to attest the Will. PW2 has spoken to the effect that the deceased Dhanamani affixed her signature not only in his presence, but also in the presence of the other attesting witness by name Thomas. He would further state that Dhanamani was very well and in normal health at the time of execution of the Will. It is his further evidence that Dhanamani saw both the attesting witnesses signing in the Will as attestors. There is no reason to reject the independent evidence of PW2.

It is true that Dhanamani died in Apollo Hospital. The death certificate, Ex.P8 issued by Apollo Hospital would show that Dhanamani died of Cardio Respiratory Arrest on 19.5.1994. Of course, the Will was executed on 3.5.1994 and on the very next day i.e., on 4.5.1994, she was admitted to Apollo Hospital for treatment. Probably the deceased, who was all along spending her evening of life with the manual help of the plaintiff, would have had some premonition about her death in near future. Ex.P9, Attender Pass issued by the Apollo Hospital, Ex.P10, a letter written by the Apollo Hospital to the plaintiff calling upon her to expedite the settlement of the medical bills for the treatment of Dhanamani, Ex.P11, the response of the plaintiff to the Apollo Hospital and Ex.P7, the original receipt issued by the Crematorium would clearly establish that the plaintiff had taken care of the deceased Dhanamani while she was fighting for life in the Hospital and performed funeral ceremonies after her death.

On a careful perusal of the subject Will, Ex.P2, it is found, that the testatrix has clearly stated that the plaintiff was residing along with the deceased Dhanamani. The testatrix also has described about the assistance rendered by the plaintiff to her in carrying out her day to day chores. No wonder Dhanamani thought it fit to dispose of the property in favour of the plaintiff by executing the subject Will, Ex.P2.

In the Will, Ex.P2, Dhanamani has described herself as wife of Damodaran. But, quite strangely, she has not chosen to state the name of her husband in the application form, Ex.P15 submitted to the Tamil Nadu Housing Board. She has described only her father''s name as Swamy Bagavathar in Ex.P15. Of course, the second defendant has filed Ex.D9 National Trade Certificate to show that he is none other than the son of Annamalai. Ex.D10 is a certificate issued by the Principal of B.M. Teacher Training Institute, Ranipet to show that Dhanamani is the daughter of one Mallari. It is pertinent to point out that the mark register which allegedly contains those particulars was not produced before this Court. Nor was the Principal who issued such a certificate, Ex.D10 examined to establish the certificate issued by him. If Ex.D10 is simply an extract from a register, the court can rely upon such extract. But, here is a case where the Principal has issued a certificate based on some entry found in the mark register. The Principal of the Training Institute should have been examined to speak to the certificate issued by him. The court is not in a position to place much reliance upon the certificate, Ex.D10 which was not proved.

Of course, the name of the father of the second defendant has been shown as Mallari by the Tahsildar, Arcot, who issued community certificate. It is also admitted by the plaintiff that Mallari is none other than the grandfather of the second defendant. But, unfortunately, the second defendant has failed to connect the said Mallari to the deceased Dhanamani. The defendant also has produced an important letter addressed to his father by a brother of his father. The said letter describes the author thereof and the father of the second defendant as the brothers of the deceased Dhanamani, The author of the said letter has not chosen to contest the claim of the plaintiff. Such a description casually made in a letter does not prove clinchingly the relationship of the parties in the absence of best evidence. But, one thing is quite clear from the letter that no relative of Dhanamani had paid any visit to Dhanamani during her life time. Further, the letter demonstrates that the deceased Dhanamani was ashamed to accept her own kith and kin as her relatives.

The second defendant also produced a Village Administrative Officer''s certificate to show that Dhanamani was none other than the daughter of Mallari. Firstly, it is found that the Village Administrative Officer has no authority to issue such a certificate. Such a certificate can be issued only by a Tahsildar and not by the Village Administrative Officer. At least, the author of such document should have been examined to prove the document. Quite unfortunately, the Village Administrative Officer, who issued such a certificate, was not examined by the second defendant. Therefore, the court finds that the second defendant has not established that he is none other than the brother''s son of the deceased Dhanamani. Even assuming for the sake of argument that Dhanamani is none other than the father''s sister of the second defendant, the court finds in the above facts and circumstances that Dhanamani who was leading her evening of life all alone with the able assistance of the plaintiff would not have thought of bequeathing any property to such relatives. It is quite natural for a person who has been completely alienated from other relatives to bequeath her property in favour of a person who took care of her at the fag end of her life.

As far as the first defendant is concerned, it is found that the first defendant is none other than the Moovender Colony Service. Association. As rightly pointed out by the learned Counsel for the plaintiff, the first defendant, who cannot claim any right over the property under the Will, cannot have any caveatable interest in this matter. Therefore, the first defendant has no locus standi to contest the suit laid by the plaintiff seeking letters of administration.

On a careful perusal of the Will, Ex.P2, it is found that Dhanamani had not handed over the property immediately on the execution of the document. In a case of settlement, the settlor should specifically refer to in the document the entrustment of the property on the date of execution of the settlement deed itself. But, here in this case, she has simply stated that she has intended to convey the right of enjoyment of the subject property in favour of the plaintiff. Very clearly it has been stated in the Will that she bequeaths all the right of the said house to the plaintiff. Therefore, the document, Ex.P2 is not a settlement deed, but, a Will bequeathing the interest over the property to the plaintiff. Now, it is admitted that the entire dues to the Housing Board was already paid by the testatrix during her lifetime even before the execution of the Will. Therefore, it is not a mere possibility of accrual of right that has been bequeathed under Ex.P2 in favour of the plaintiff. The right to get the sale deed had already accrued to Dhanamani immediately after the entire dues were paid to the Housing Board. Such a right which has already been crystalized cannot be termed as a mere possibility as adumbrated u/s 6 of the Transfer of Property Act. Therefore, the plaintiff is entitled to seek for execution of the sale deed by the Housing Board in her favour on the basis of the right bequeathed by Dhanamani.

In view of the above facts and circumstances, it is held that the testatrix had executed the Will in a sound and disposing state of mind. The Will stands proved. Therefore, the plaintiff is entitled to Letters of Administration as prayed for. Letters of Administration is ordered to be issued in favour of the plaintiff herein.

The plaintiff is directed to take inventory of the assets of the deceased Dhanamani within six months from today and is also directed to render true and due accounts of the properties and credits within one year from today.

The plaintiff is 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.