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Judgment
S. No,Exhibits,Date,Description of documents
1.,P-1,10/08/1993,Original death certificate of Lokiah Naidu
2.,P-2,14/02/1963,Original Will
3.,P-3,06/08/1993,Original Death Certificate of Chandra Bai
4.,P-4 (series),-,Property tax receipts (2 numbers)
5,P-5 (series),-,Quit Rent receipts (2 numbers)
,,,
5,D-5,03/09/2004,"Certified true copy of written statement filed by Amudha in O.S.No.8024 /1992, City Civil Court, Madras
6,D-6,03.03.2011,"Certified true copy of pliant filed in O.S.No.8024 /1992, City Civil Court, Madras
7,D-7,20/2/1995,Property tax payment Challan
8,D-8,02/09/1996,Property tax payment Challan
9,D-9,08/09/1997,Property tax payment Challan
10,D-10,21/09/2005,Water and Sewerage tax payment receipt
11,D-11,24.11.1982,"Xerox copy of the order by the Taxation Appeals Committee, Corporation of Chennai
12,D-12,01/02/1960,Certified copy of sale deed
the deceased Chandra Ammal @ Chandra Bai, who is the elder daughter of the testator N.K.Lokiah Naidu. It is also not in dispute that the",,,
defendants 5 to 8 are the legal heirs of 1st plaintiff, D.Shanthi, who died during the pendency of the suit. It is the contention of the plaintiffs that",,,
originally, N.K.Lokiah Naidu executed a registered Will dated 14. 02.1963, wherein he has given a life interest to elder daughter in respect of the",,,
properties situate in the Vadapalani and vested interest to the legal heirs of Chandra Ammal @ Chandra Bai. Similarly, 1st defendant and another",,,
daughter of the N.K.Lokiah Naidu, namely, Govindammal, the mother of the other defendants were bequeathed other properties. It is the",,,
contention of the plaintiffs that one of the attesting witness is none other than one of the daughter of the testator, namely, the said Chandra Ammal",,,
@ Chandra Bai, and another witness is one Veerasamy, who is the brother-in-law of the testator. Since, both the attesting witnesses were died,",,,
the Will has proved in the other manner known to law.,,,
It is the contention of 1st defendant that the Will may be the outcome of the undue influence and coercion played upon the deceased N.K.,,,
Lokiah Naidu by the Chandra Ammal @ Chandra Bai. It is the further contention of 1st defendant that there is uncertainty and ambiguity in respect,,,
of the property and hence, disputing the Will. It is the contention of 2nd defendant, who is the son of the Govindammal, another daughter of",,,
N.K.Lokiah Naidu, that the properties mentioned are the different properties from the properties described in the alleged Will and that the petition",,,
has been filed in the year 1993. The alleged Will was not executed by the testator.,,,
In the background of the above pleadings, now this Court has to analyse the evidence and documents to find out whether the Will propounded",,,
by the plaintiffs has been proved in the manner known to law. On the side of the plaintiff, P.W.1 and P.W.2 were examined. P.W.1 is one of the",,,
daughter of the deceased Chandra Ammal @ Chandra Bai, who is said to be the beneficiary under the Will. In her evidence in the chief",,,
examination, he has categorically stated that the testator, N.K.Lokiah Naidu, is her grand father, who died on 01.3.1964 and he left the registered",,,
Will dated 14.2.1963, which is marked as Ex.P2. The Will was attested by her mother Chandra Ammal @ Chandra Bai and Veerasamy, who is",,,
the brother in law of the grand father, N.K.Lokiah Naidu. The specific evidence of P.W.1 is that her mother died on 16.2.1976 and another",,,
witness, V.N.Veerasamy died during the year 1969. The death of the attesting witnesses spoken by P.W.1 is not even denied in the entire cross",,,
examination of P.W.1.,,,
It is to be noted that one of the attesting witness in the Will, i.e, Chandra Ammal @ Chandra Bai, who is none other than the sister of the 1st",,,
defendant, died on 16.2.1976. To prove her death, Ex.P3 death certificate has been marked. Though the death certificate of other attesting",,,
witness, namely, V.N.Veerasamy has not been filed, his death in the year 1969 has not been disputed by other side. The relationship of",,,
Veerasamy, with the original testator is not disputed in the cross examination of P.W.1.",,,
When the death of attesting witnesses has been established by deposing evidence, other mode requires to prove the Will, as contemplated",,,
under Section 69 of the Indian Evidence Act, 1872. Section 69 of the Indian Evidence Act, 1872 reads as follows:",,,
Proof where no attesting witness found- If no such attesting witness can be found, or if the documents purports to have been executed in the",,,
United Kingdom, it must be proved that the attestation witness at least is in his handwriting, and that the signature of the person executing the",,,
documents is in the handwriting of that person. """,,,
Therefore, it is clear that to prove the hand writing of the attesting witness, the person, who has acquaintance with the signature of such attesting",,,
witness, has to be examined before the Court of law, as per Section 69 of the Indian Evidence Act, 1872.",,,
Admittedly, in this case, to prove the signature of one of the attesting witness, i.e. Chandra Ammal @ Chandra Bai,, P.W.1, who is the",,,
daughter of the said Chandra Ammal @ Chandra Bai, was examined before the Court and she has spoken in the chief examination that the",,,
signature found in the Will is that of her mother, Chandra Ammal @ Chandra Bai. Besides, she has also stated that she is well acquainted with the",,,
signature of her grand father and she used to see her grand father signing the rent receipts to the tenants and other papers concerned in the business,,,
transaction during her young years. From the evidence of P.W.1, it could be seen that P.W.1 identifying her mother signature found in Ex.P2, Will,",,,
is normal. Similarly she has also given explanation and reasons how she has acquainted with the signature of her grand father. Such acquaintance,,,
with signature of the family member is normal. Therefore, P.W.1 identifying the signature of one of the attesting witness and also the signature of the",,,
testator clearly established the execution of the Will.,,,
It is the contention of the defendants that she was only 11 years old at the relevant time and it is highly impossible for her to remember the,,,
signature of the grand father. It is to be noted that even assuming that P.W.1 was 11 years old at the relevant time, her evidence clearly indicate",,,
that she was a school going child at the relevant time. Even when she was examined in the year 2009, her evidence also clearly show that, she",,,
could remember the name of one of her teacher in the school, where she studied. It is needless to state that the school going children are more",,,
keen in remembering the facts than others. Therefore, merely because she was aged at 11 years at the relevant time that itself is not a ground to",,,
disbelieve her evidence. Her evidence coupled with the admission made in the written statement by the first defendant clearly prove the execution,,,
of the Will,Ex.P2, by the testator.",,,
Further, in the written statement filed by the 1st defendant, there is no specific denial about the Will executed by father. The signature of his",,,
father is not even denied in the entire written statement. In fact, he has pleaded in para 6 of the written statement that the alleged Will may be the",,,
outcome of the undue influence and coercion played upon his father, as he was kept in the custody of his sister Chandra Ammal @ Chandra Bai.",,,
Except bald allegation as stated above, there is no specific denial about the signature of his father in the Will. In fact, one of the attesting witness''s",,,
signature is admitted in the written statement in para 12. It is averred in the written statement that Chandra Bai attested the Will and she has played,,,
a prominent and active part in getting the Will executed by her father. The signature of late Chadra Ammal @ Chandra Bai discloses that she has,,,
signed as an witness. The positive admission in the written statement coupled with the evidence of P.W.1, who was acquainted with the signature",,,
of the testator as well as her mother, one of the attesting witness, clearly proved the Will as required under law.",,,
It is well settled that when both the attesting witnesses are not found, the Will can be proved only as per Section 69 of the Indian Evidence",,,
Act, 1872 coupled with Section 47 of the Indian Evidence Act, 1872. In view of the evidence of P.W.1, the execution of the Will by the testator,",,,
Lokiah Naidu, is proved as per the provision of the Indian Evidence Act, 1872.",,,
In the above background, when Ex.P2, registered Will is carefully perused, the Will is admittedly registered on 14.02.1963 in the presence of",,,
two attesting witnesses, i.e one Chandra Ammal @ Chandra Bai and another person. Though the name of the second attesting witness was not",,,
mentioned in the Will, the evidence of P.W.1 clearly show that it was one Veerasamy, who is the brother-in-law of the testator, Lakiah Naidu and",,,
the same has been found only after proper verification. P.W.1''s evidence in the cross examination with regard to the said Veerasamy signing the,,,
Will as one of the attesting witness is not denied in his cross examination. The identification witness, also singed in the Will in this regard. P.W.2,",,,
who is the husband of P.W.1, was examined. P.W.2, in his evidence, has clearly stated that he is aware of the affairs of the testator family and in",,,
fact, before his marriage, he was working with the original testator Lokiah Naidu. Late he married his daughter. When his evidence in the Chief",,,
examination is carefully read, he has clearly stated that he has searched about the identification witnesses address and could not locate them and",,,
their whereabouts also not known. This evidence with regard to the due search made by P.W.2 about the identification witness, has not at all",,,
denied in the entire cross examination. It is the specific evidence of P.W.1 that previously, she did not know who was the other attesting witness",,,
and only recently, she came to know that Veerasamy has signed as other attesting witness. Such explanation in her evidence is also quite natural.",,,
Admittedly, the Will itself was found in the year 1992, i.e.,only after the partition suit filed by the 1st defendant in the year 1992. Therefore, the",,,
children of one of the attesting witness knowing the details of other attesting witness is not at all possible and only when the question of establishing,,,
the right arises, it is the tendency of the human to search for such witness and documents etc. Therefore, this Court is of the view that merely",,,
because earlier, the plaintiffs did not know about the other attesting witness is not a ground to discard their evidence in entirety. As already",,,
discussed, the execution of the Will has been proved by the evidence of P.W.1 and P.W.2 coupled with the admission of the 1st defendant in the",,,
written statement.,,,
When the Will is carefully perused, it is seen that the testator has categorically stated that he has two properties in Chennai. One situate at",,,
Bhakthavatchalam colony in the back side of Vadapalani Andavar Temple, Kodambakkam, madras, which was purchased from one Duraisami",,,
Naicker of Puliyur Village and after purchasing the same, he constructed three rooms in the said property. He was also given reasons in the Will",,,
for not allotting this property to the 1st defendant. The reason he has stated is that since the 1st defendant, his son, wanted to stay separately along",,,
with his wife, and as per his request, he was given entire business worth about 10,000/- already. Besides he has also bequeathed the other",,,
property situate in the Ekavalli Amman Koil Lane to the 1st defendant and another daughter, Govindammal, worth about Rs.12,000/- . From the",,,
recitals of the Will, the intention of the testator can be easily gathered and that, he made equal distribution to all the legal heirs. In fact, the recitals",,,
clearly show that the 1st defendant was given his business worth about Rs.10,000/- at the relevant time in the year 1963. The Will clearly show the",,,
intention of the testator to distribute the properties equally to all the legal heirs.,,,
From the above Will, this Court is unable to find any suspicious circumstances. It is further to be noted that the testator has signed the Will only",,,
in the last page. First two pages are not signed. Merely because 1st and 2nd pages are not signed by the testator, that itself is not a ground to",,,
invalid the registered Will, which is otherwise proved in the manner known to law. It is the contention of the defendants that the property described",,,
in the Will is totally different than the property described in the schedule. It is not the case of the defendants that except two of the aforesaid,,,
properties, the testator had some other property. Therefore, this Court is unable to accept the contention of the defendants in this regard.",,,
It is the admitted case of the parties that the testator had two properties alone at the time of execution of the Will. While so, the defendants",,,
have now taken advantage about the change of street name in one of the properties. But the fact remains that the property bequeathed to Chandra,,,
Ammal @ Chandra Bai situate in Vadapalani. This fact is not at all disputed. The testator also clearly stated in his Will that the above property has,,,
been purchased from one Duraisamy Naicker and others. In this regard, Ex.D12 filed by the defendants themselves proved the fact that the",,,
testator has purchased the property situate in Vadapalani from Duriasamy Naciker and others. The description of the property is not disputed. The,,,
property is situate in the Puliyur Village, which has been clearly mentioned. It is to be noted that in the year 1963, the above property is known as",,,
Bhakthavatchalam street. Now the above street has been changed as Alagiri Nagar, Vadapalani. It is quite normal that change of street normally",,,
took place due to passage of time. Merely because there was a change in the street name, it cannot be contended by the defendants that there is",,,
an ambiguity in the Will.,,,
Absolutely, there is no ambiguity found in the Will with regard to the description of the property. Survey No. and village name are found to be",,,
one and the same. Merely because the street name is changed subsequently, that too, after a lapse of 40 years, it cannot be a ground to infer that",,,
there is an ambiguity in the Will with regard to the property. Therefore, the contention of the defendants that there is an ambiguity cannot be",,,
countenanced.,,,
Admittedly, as per the Will, Chandra Ammal @ Chandra Bai was given life interest in respect of ""B"" schedule property and vested remainders",,,
to all the legal heirs. Of course, the Chandra Bai was the attesting witness. Merely because the beneficiary has attested the Will cannot be a ground",,,
for suspecting the Will. Unless undue influence, coercion or fraud has been established, mere signing as an attesting witness by one of the",,,
beneficiary, the same cannot be a suspicious circumstances. In the judgment reported in 2009 (11) SCC page 1 (Rursingh (D) Rep. by LRs. and",,,
another v. Bachan Kaur), the Hon''ble Supreme Court held that merely because the beneficiary attested the Will, the same cannot be ground to",,,
infer suspicious circumstances. D.W.2''s, the 1st defendant, in his evidence in the cross examination, has clearly admitted that there is no evidence",,,
to show that his father was suffering from heart ailment at the relevant period. He has also admitted that except two houses, his father did not own",,,
any other property. D.W.2 has also admitted that he has never paid tax for vadapalani property and he has also admitted that after the death of his,,,
father, he renovated the property situate at Ekavalli Amman Koil Lane. He has also admitted the signature of the attesting witness in the Will. The",,,
fact remains that the Chandra Ammal @ Chandra Bai alone was residing in the property along with Loka Naikh and thereafter the plaintiffs are,,,
paying the taxes regularly.,,,
If really the Will was not there, being the only son of the testator, nothing prevented the first defendant from paying taxes to ""B"" schedule",,,
property. His evidence clearly indicate that he was never in possession of ""B"" schedule property and paid taxes. Exs.D8 to D10 filed by the",,,
defendants also proved the fact that he had paid taxes only in respect of the property bequeathed to him under the Will. All these facts clearly,,,
proved that the Will was acted upon by the parties. Only taking advantage of the fact that the Will has not been proved in the Court for granting,,,
Letters of Administration all these years, the 1st defendant has filed the suit for partition in the year 1992. Therefore, this Court is of the view that",,,
merely because there was a delay in approaching the Court to get the Letters of Administration on the basis of the registered Will, which is not",,,
even surrounded with any suspicious circumstances, delay itself cannot be a ground to reject the Will, which is otherwise proved properly before",,,
the Court.,,,
Admittedly, the plaintiffs are the legal heirs of Chandra Ammal @ Chandra Bai. The said Chandra Ammal@ Chandra Bai died in the year",,,
1976. As per the Will, she was given only life interest. Therefore, the legal heirs, who are in young age at the relevant time, may not be in a position",,,
to know the legal obligation and requirement of law at the relevant time to get the Will proved before the Court of law. Therefore, mere delay in",,,
approaching the Court cannot be a ground to non suit the plaintiff, when the Will has been proved in the Court of law .",,,
There is no dispute with regard to the proposition made in the Judgments cited by the learned counsel for the defendants. But the fact remains,,,
that the Will in this case has been proved as per Section 69 of the Indian Evidence Act, 1872 since the attesting witnesses were not available.",,,
Therefore, the contention of the learned counsel that Section 63 (c) has to be complied in proving of the Will is not applicable to the facts of the",,,
present case. Accordingly, the issues are answered.",,,
In the result,",,,
(i). The suit is decreed.,,,
(ii). The Letters of Administration, having the effect limited to the State of Tamil Nadu, shall be issued in favour of the plaintiffs in respect of the",,,
property bequeathed to them in the Will dated 14.2.1963.,,,
(iii). The plaintiffs are directed to duly administer the estate of the deceased.,,,
(iv). The plaintiffs shall execute a security bond for a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) in favour of the Assistant Registrar",,,
(O.S-II), High Court, Madras.",,,
(v). The plaintiffs are further directed to render true and correct accounts once in a year.,,,
(vi). No costs.,,,