T.Santhanakrishnan(Deceased) vs K.Rani @ Kotteeswari

T.O.S. No. 33 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 03.08.2026
PRONOUNCED ON : 26.10.2026
CORAM:
THE HONOURABLE DR. JUSTICE A.D. MARIA CLETE
T.O.S. No. 33 of 2018
1. T.Santhanakrishnan(Deceased)
S/o.Late Mr.V.S.Thirunavukkarasu, New
No.92, OLd NO.62, Bangaru Naicken Street,
Mount Road, Chennai- 600 002.
2. T.Varadhan
S/o.Late Mr.V.S.Thirunavukkarasu,
New No.92, Old No.62, Bangaru Naicken
Street, Mount Road, Chennai- 600 002
3. S.Gowri, Aged 65 years,
W/o.T.Santhanakrishnan,
No.92/62, Bangaru Street, Mount Road, Anna
Salai, Chennai-2.
4. V.Lakshmi, aged 41 years
D/o.T.Santhanakrishnan,
No.14/46, New Bog Road,
Kannammapet, T.Nagar, Chennai-600 017
5. S.Ramesh, aged 38 years
No.92/62, Bangaru Street,
Mount Road, Anna Salai,
Chennai-600 002
(Plaintiffs 3 to 5 brought on record as LR's of
the deceased 1st Plaintiff, and amended as per
order dated 1.3.2021 in A.No.762/2021 in TOS
No.33/2018)
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T.O.S. No. 33 of 2018
6. V.Vijaya, W/o.Varadhan,
New No.92, Old No.62,
Bangaru Naicken Street,
Mount Road, Chennai – 600 002.
7. V.Manikandan, S/o.Varadhan,
New No.92, Old No.62,
Bangaru Naicken Street,
Mount Road, Chennai – 600 002.
8. V.Karthik, S/o.Varadhan,
New No.92, Old No.62,
Bangaru Naicken Street,
Mount Road, Chennai – 600 002.
9. M.Kalpana, D/o.Varadhan,
No.C-9, Sridevi Karumariamman Nagar,
st
1 Street, Thiruverkadu Post,
Ayapakkam, Thiruvallur – 600 077.
(Plaintiffs 6 to 9 are brought on record as L.R.’s
nd
of the deceased 2 plaintiff and amended as per
order dated 20.03.2024 in A. No. 1629 of 2024)
..Plaintiff(s)
Vs
K.Rani @ Kotteeswari
W/o.E.Karunakaran,
NO.99, Durgai Amman Nagar, Kasamedu,
Sevvapettai, Thozhuvoor Post,
Thiruvallur - 602 025
..Defendant(s)
PRAYER: To prove the Will in common form and that probate thereof, to have
effect throughout limited to the State of Tamil Nadu may be granted to them.
For Plaintiff(s): M/s.N.Poovanalingam
R.Ramalingam
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T.O.S. No. 33 of 2018
For Defendant(s): M/s.G.Saravanan
Sujatha Saravanan
D.Prathap
M.Sanathkumar
J U D G M E N T
This Testamentary Original Suit arises out of O.P.No.49 of 2018, filed
originally under Sections 222 and 276 of the Indian Succession Act, 1925,
seeking grant of probate in respect of the last Will and Testament dated
05.03.1980 said to have been executed by late Mrs. T. Kannammal. The said
Original Petition was converted into the present Testamentary Original Suit
nd
upon the 2 respondent entering caveat and contesting the grant.
2. During the pendency of the proceedings, the original first plaintiff, Mr. T.
Santhanakrishnan, died on 31.03.2020 and his legal heirs were brought on
record. The original second plaintiff, Mr. T. Varadhan, also subsequently died
on 29.12.2023 and his legal representatives were brought on record.
3. The case of the plaintiffs, is that the deceased T. Kannammal, wife of late
V.S. Thirunavukkarasu, died on 19.12.1998 at No.62, Bangaru Naicken Street,
Mount Road, Chennai–2, where she was residing. According to the plaintiffs,
during her lifetime, T. Kannammal executed her Last Will and Testament dated
05.03.1980, which was registered as Document No.12 of 1980 in the office of
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T.O.S. No. 33 of 2018
the Sub-Registrar, Triplicane, in the presence of two witnesses. The Original
plaintiffs 1 & 2, who are the sons of the testatrix, have been appointed as the
Executors as well as the beneficiaries under the said Will.
4. The plaintiffs further state that all the next of kin and persons interested
in the estate have been impleaded. The respondents in the original petition are
daughters of the testatrix and sisters of the original plaintiffs 1 & 2. According
to the plaintiffs, there are no other next of kin or persons interested who are
required to be impleaded. They have explained the delay in approaching the
Court by stating that the Legal Heir Certificate could not be obtained in time
and an amicable settlement could not be reached between the parties.
5. The subject matter of the testamentary proceedings is the house, ground
and premises, together with the leasehold rights over the land belonging to
Emeerunnissa Begum Sahiba Endowments. The plaintiffs, being the executors
named in the Will dated 05.03.1980, have sought probate of the said Will in
their favour.
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T.O.S. No. 33 of 2018
6. The first respondent in the original petition, S. Rajeswari, the elder
daughter of the testatrix, filed a consent affidavit dated 30.10.2017, affirming
that the Will dated 05.03.1980 is the genuine and last Will of her mother. She
has further expressed her no objection to the grant of probate in favour of the
original plaintiffs.
7. The defendant who is the younger daughter of the testatrix contended that
the suit is not maintainable either in law or on facts. According to her, the
alleged Will dated 05.03.1980 said to have been executed by T. Kannammal is a
forged and fabricated document brought into existence by the plaintiffs with a
view to deprive the defendant of her lawful share in the estate. She admits that
T. Kannammal died on 19.12.1998, but asserts that she died intestate and that,
as one of her legal heirs, the defendant is entitled to an undivided 1/4 share in
the property.
8. The defendant principally relies upon the long delay in seeking probate.
According to her, though Kannammal died in the year 1998, the plaintiffs
approached the Court for probate only nearly twenty years thereafter, without
furnishing any satisfactory explanation. She further pleads that as early as
08.11.2006, she had addressed a communication to the original plaintiffs 1 & 2
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T.O.S. No. 33 of 2018
demanding her share in the property and mesne profits, followed by a legal
notice dated 22.11.2006, to which the plaintiffs sent a reply on 30.11.2006.
Despite such assertion of her right, the plaintiffs did not take steps to propound
the alleged Will at that stage. According to the defendant, such prolonged
inaction casts serious doubt upon the genuineness of the Will.
9. It is further pleaded that the alleged Will was never disclosed to the
defendant or to the other persons interested in the estate during the lifetime of
Kannammal or for several years after her death. The defendant contends that the
Will is written in English, a language which Kannammal was allegedly not
acquainted with, and that there is nothing in the document to show that its
contents were read over or explained to the testatrix before execution. On that
basis, she alleges that the circumstances surrounding the execution of the Will
are suspicious and raises allegations of undue influence, misrepresentation and
even impersonation, calling upon the plaintiffs to strictly prove the due
execution and attestation of the Will in accordance with law.
10. The defendant also questions whether the attesting witnesses to the
alleged Will are presently available and alleges that the delay in instituting the
probate proceedings was deliberate. She further contends that, on a bare perusal,
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T.O.S. No. 33 of 2018
the Will has not been executed and attested in accordance with the requirements
of the Indian Succession Act.
11. The defendant additionally disputes the exclusive title of testatrix
Kannammal to the suit property. According to her, the property was purchased
from the sale proceeds of an ancestral property bearing Door No.101/212, Dr.
Besant Road, Royapettah, Chennai–14, and testatrix was therefore not the
absolute owner thereof. She further claims that, during her lifetime, testatrix had
expressed that the property should be divided into four equal shares. The
defendant also points out that, even as per the schedule to the Will, the land
belongs to a third party and contends that such person has not been impleaded.
On these pleadings, she prays for dismissal of the suit with costs.
12. This Court, framed the following issues for consideration on 30.03.2022:
1. Whether the Will executed by deceased T.Kannammal is true, genuine,
valid and enforceable?
2. Whether the said Kannammal died intestate on 19.12.1998?
3. To what other reliefs, the parties are entitled to?
13. On the side of the plaintiffs, the second original plaintiff, T. Varadhan,
was examined as P.W.1 and Exs.P1 to P5 were marked. P.W.2 was examined
to identify the signature of his father, late V. Nagalingam, one of the attesting
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witnesses to the Will, and the said signature was marked as Ex.P6. Through
him, Exs.P7 to P11 were also marked. On the side of the defendant, K. Rani @
Kotteeswari was examined as D.W.1. No documentary evidence was marked on
the side of the defendant.
14. Learned counsel for the plaintiffs submitted that the suit relates to the
registered Will dated 05.03.1980 executed by late T. Kannammal in favour of
her two sons, T. Santhanakrishnan and T. Varadhan, the original plaintiffs. It
was submitted that T.Kannammal had purchased the suit property out of her
own income under the Sale Deed dated 30.11.1974, registered as Document
No.41/1975 in the office of the Sub-Registrar, Triplicane, which has been
marked as Ex.P1. The Will dated 05.03.1980, registered as Document
No.12/1980, SRO, Triplicane, has been marked as Ex.P2, while the Death
Certificate and Legal Heir Certificate of T.Kannammal have been marked as
Exs.P3 and P4 respectively.
15. It was further submitted that the original registered Will had been
entrusted by testatrix T.Kannammal to her eldest daughter, S. Rajeswari.
According to the plaintiffs, the existence of the Will came to the knowledge of
the original plaintiffs when the defendant issued a notice dated 08.11.2006
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seeking partition of the suit property and, when the plaintiffs approached
Rajeswari in connection with sending a reply, she informed them about the Will
kept in her custody. The Learned counsel for the plaintiffs explained the delay
in approaching the Court by stating that, owing to insufficient income and the
educational expenses of their children, the original plaintiffs were unable to
initiate probate proceedings earlier.
16. Learned counsel contended that Ex.P2 is a registered Will and that the
defendant has not produced any evidence to substantiate her allegations of
undue influence, fabrication or impersonation. It was pointed out that the
defendant's principal objection is that the Will is in English, a language
allegedly not known to T.Kannammal . The plaintiffs, however, relied upon the
circumstance that even the Sale Deed executed in favour of T.Kannammal was
in English and contended that the mere fact that the Will was drawn in English
would not, by itself, establish that she was unaware of its contents. It was
further pointed out that the eldest daughter, Rajeswari, who was stated to have
been in possession of the original Will, had given her consent in the probate
proceedings.
17. As regards proof of the Will, learned counsel submitted that the first
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attesting witness, V. Nagalingam, died on 06.05.2010, while the whereabouts of
the second attesting witness could not be traced despite efforts. Consequently,
N. Selvakumar, son of late V. Nagalingam, was examined as P.W.2 to identify
his father's signature, which was marked as Ex.P6. P.W.2 also produced Exs.P7
to P11 to establish his relationship with late V. Nagalingam and to support the
identification of the signature. It was therefore submitted that the oral evidence
of T. Varadhan, examined as P.W.1, together with the evidence of P.W.2 and
the documentary evidence, sufficiently establishes the execution of the Will.
18. Learned counsel further submitted that the defendant entered the witness
box as D.W.1, but did not mark any document in support of her pleadings. It
was also pointed out that, during cross-examination, on several material aspects
she stated that her counsel alone knew the particulars. Though the defendant had
issued a partition notice, she did not institute any suit for partition either before
or after the institution of the probate proceedings. According to the plaintiffs,
this conduct supports their case that the defendant was aware of the Will and
that her challenge to Ex.P2 is without substance.
19. On these grounds, learned counsel for the plaintiffs submitted that the
Will dated 05.03.1980 marked as Ex.P2 is genuine and duly proved, and prayed
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that the suit be decreed as prayed for.
20. Learned counsel for the defendant submitted that the plaintiffs have failed
to prove the Will dated 05.03.1980 in the manner required by law. It was
contended that the burden lies entirely upon the propounders to establish the due
execution and attestation of the Will and to remove all suspicious circumstances
surrounding its execution. According to the defendant, strict compliance with
Section 63(c) of the Indian Succession Act, 1925 and Sections 68 and 69 of the
Indian Evidence Act, 1872 is mandatory before a Will can be acted upon.
21. Learned counsel further submitted that both the attesting witnesses to the
Will are admittedly no more. The plaintiffs examined P.W.2, N. Selvakumar,
claiming him to be the son of the first attesting witness, V. Nagalingam
Chettiar, only for the purpose of identifying the latter's signature, which was
marked as Ex.P6. It was contended that P.W.2 had never seen the original Will
prior to the proceedings and had no personal knowledge of its execution or
attestation. Though P.W.2 admitted that his S.S.L.C. book contained his father's
signature, he did not produce the same, stating later that it could not be traced.
The defendant also questioned whether the V. Nagalingam referred to in Ex.P7
was the same person described as V. Nagalingam Chettiar in Ex.P2 and
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contended that Ex.P7, being of the year 2002, was not a contemporaneous
document with the Will of the year 1980. On that basis, it was submitted that the
evidence of P.W.2 was insufficient to establish due execution and attestation of
the Will.
22. It was further submitted that the Will is in English, whereas, according to
the defendant, the testatrix was not acquainted with English, and there is no
recital in the Will to indicate that its contents were read over or explained to her
in Tamil or that she executed it after understanding the nature and effect of the
dispositions. It was therefore contended that the plaintiffs have not established
either the testamentary capacity of the testatrix or that she executed the
document with full knowledge of its contents. Learned counsel also submitted
that mere registration of the Will does not dispense with the statutory
requirement of proving its due execution and attestation.
23. The learned counsel for the defendant further contended that there is the
delay of nearly twenty years in approaching the Court for probate. The testatrix
died on 19.12.1998, whereas the probate proceedings were instituted only in
2018. According to the defendant, the explanation that the delay arose on
account of difficulty in obtaining the legal heirship certificate and attempts at an
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amicable settlement is unacceptable, particularly when disputes had arisen
between the parties as early as 2006 and legal notices had been exchanged. It
was therefore contended that the prolonged delay constitutes a suspicious
circumstance which the plaintiffs have failed to satisfactorily explain. Reliance
in this regard was placed upon S. Vatsala v. K.S. Mohan , AIR 2016 Mad 59.
24. Learned counsel also contended that no presumption of due execution can
be drawn merely because the Will is more than thirty years old. Reliance was
placed upon Bharpur Singh and others v. Shamsher Singh , (2009) 3 SCC 687
and Rampyare and another v. Ramkishun and another , 2026 SCC OnLine
Chh 2658 , for the proposition that the presumption relating to ancient
documents cannot, by itself, dispense with the statutory proof required in the
case of a Will.
25. It was further submitted that the land over which the superstructure stands
belongs to a third party, who has not been impleaded, and that the suit is
therefore bad for non-joinder of a necessary party. Learned counsel also referred
to the fact that P.W.1 was not cross-examined, as he died during the pendency
of the proceedings; according to the defendant, his evidence would in any event
not establish execution or attestation since he had no personal knowledge
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thereof.
26. In support of the above submissions, learned counsel for the defendant
relied upon Jaswant Kaur v. Amrit Kaur and others , (1977) 1 SCC 369;
Kashibai and another v. Parwatibai and others , (1995) 6 SCC 213; Janki
Narayan Bhoir v. Narayan Namdeo Kadam , AIR 2003 SC 761; K. Laxmanan v.
Thekkayil Padmini and others , AIR 2009 SC 951; Lakshmi v. Gopi , 2026 INSC
709. On these grounds, it was submitted that the suspicious circumstances
surrounding the Will have not been dispelled, that its due execution and
attestation have not been proved in accordance with law and, consequently, that
the suit is liable to be dismissed.
27. Issues Nos.1 and 2:
These issues are considered together, as they concern the genuineness and proof
of the Will dated 05.03.1980, marked as Ex.P2, and the consequential
testamentary relief. The original plaintiffs died during the pendency of the
proceedings, and their legal representatives have been brought on record.
28. The plaintiffs’ case is that their mother, T. Kannammal, executed the
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registered Will dated 05.03.1980, bequeathing her interest in the schedule
property to her two sons, the original plaintiffs. She died on 19.12.1998. The
defendant, one of her daughters, disputes the Will and contends that her mother
died intestate.
29. The defendant objects that Ex.P2 is forged; that the testatrix, who signed
in Tamil, could not have understood a Will written in English; that the exclusion
of the daughters is suspicious; that the Will has not been proved in accordance
with law; and that the prolonged delay in seeking testamentary relief casts doubt
on its genuineness. She also questions the testatrix’s exclusive ownership and
contends that the owner of the underlying land ought to have been impleaded.
30. The burden of proving the Will rests upon the plaintiffs as its
propounders. They must establish its execution and attestation in accordance
with Section 63 of the Indian Succession Act, 1925, through the mode of proof
prescribed by the Indian Evidence Act, 1872. They must also satisfy the Court
that the testatrix possessed testamentary capacity and executed the instrument
voluntarily, understanding its nature and effect. Any suspicious circumstances
emerging from the evidence must be satisfactorily explained. Neither
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registration nor the absence of effective rebuttal dispenses with this burden.
31. The second plaintiff was examined as P.W.1. He produced the documents
relied upon, including Ex.P2, and identified the signature of the testatrix on the
Will. In his evidence he specifically stated that will dated 05.03.1980 executed
by Mrs. T.Kannammal and marked the will as an exhibit. Though afforded an
opportunity, the defendant did not cross-examine him. His testimony thus
remains unchallenged in cross-examination.
32. According to the plaintiffs, one attesting witness, V. Nagalingam, had
died and the whereabouts of the other attesting witness could not be traced.
They therefore examined the son of the deceased attesting witness as P.W.2,
invoking Section 69 of the Indian Evidence Act, 1872. Before that provision can
be applied, the death of the deceased attesting witness and the inability to
procure the other attesting witness despite reasonable efforts must be
established. Section 69 requires proof both that the attestation of at least one
attesting witness is in his handwriting and that the signature of the executant is
in the handwriting of the executant.
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33. P.W.2 identified the signature of his father on Ex.P2. In support of his
identity and relationship, he produced his family card and Aadhaar card bearing
his father’s name, as well as the death certificate and legal heir certificate of V.
Nagalingam. These documents support the asserted relationship and the death of
that attesting witness. The evidentiary value of his identification of the signature
must, however, be assessed with reference to the foundation laid in his
deposition for his familiarity with his father’s handwriting.
34. P.W.2 stated that he completed his S.S.L.C. in 1975. He was first
examined in this case on 13.08.2024, nearly five decades later. His failure to
produce his S.S.L.C. certificate does not, by itself, discredit his identity or
relationship, particularly when other documents supporting that relationship
have been produced. The relevant question is whether his evidence satisfactorily
establishes his identity and his competence to identify the handwriting in
question.
35. P.W.2 produced the settlement deed dated 06.06.2002 executed by his
father in favour of P.W.2 and other family members. In that document, his father
signed as “V. Nagalingam”, without the suffix “Chettiar”, whereas the first
attesting witness’s signature in Ex.P2 appears as “V. Nagalinga Chettiar”.
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Despite this variation in the name, the signatures in the two documents are
similar. Further, the address of the first attesting witness recorded in Ex.P2
corresponds with the address appearing in the death certificate, legal heir
certificate, settlement deed and other documents produced by P.W.2. These
consistent particulars corroborate P.W.2’s evidence regarding his relationship
with the deceased attesting witness and the latter’s identity as the signatory to
Ex.P2.
36. The omission of the suffix “Chettiar” in the settlement deed must
therefore be considered alongside the similarity of the signatures and the
correspondence of the identifying particulars. Taken together with P.W.2’s
identification of his father’s signature, these circumstances satisfactorily
establish that “V. Nagalinga Chettiar” and “V. Nagalingam” refer to the same
person. The variation in the form of the name does not, in these circumstances,
discredit P.W.2’s identification of his father’s signature as an attesting witness to
Ex.P2
37. Section 69 requires proof of two distinct facts: that the attestation of at
least one attesting witness is in that witness’s handwriting, and that the
executant’s signature is in the executant’s handwriting. It does not require both
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facts to be established by the same witness. Here, P.W.2 identifies his father’s
signature as an attester, while P.W.1 identifies the signature of his mother, the
testatrix . P.W.2’s silence regarding the testatrix’s signature does not, by itself,
render this mode of proof defective. Nor is P.W.1 disqualified from identifying
her signature merely because he is a beneficiary. The acceptance of each
identification depends upon the witness’s demonstrated acquaintance with the
relevant signature and the credibility of his evidence.
38. In V. Kalyanaswamy v. L. Bakthavatsalam, (2021) 16 SCC 543,
decided on 17.07.2020 , the Supreme Court explained the requirements of
Section 69 and emphasised that the Court must still assess the reliability of the
evidence tendered in compliance with it. In paragraph 74, the Court considered
the deceased attesting witness’s earlier deposition, the executor’s evidence and
P.W.1’s admission concerning the testator’s signatures. P.W.1 in that case was a
nephew on the side contesting the Will, and not its beneficiary or propounder.
The decision supports assessment of the evidence from different sources; it
should not be understood as a factual instance of identification by a beneficiary
examined as P.W.1.
39. The defendant relies upon Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC
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369 . That decision requires a propounder to remove legitimate suspicious
circumstances by cogent evidence; a bare assertion about the testator’s signature
or capacity will not suffice where such suspicions remain. This principle applies
equally when Section 69 is invoked. The decision does not require one
identification witness to prove both signatures and does not exclude the
beneficiary’s evidence. Its application to the present Will depends upon whether
the circumstances concerning its execution, disposition and production have
been satisfactorily explained.
40. In Kashibai & Anr v. Parwatibai & ors, (1995) 6 SCC 213 relied by
the defendant, the evidence did not establish the requisite execution and
attestation under Section 68 of the Evidence Act read with Section 63 of the
Indian Succession Act. The Court could not supply the missing proof by
assumption. The present case concerns the alternative mode of proof under
Section 69, subject to proof of the death or unavailability of the attesting
witnesses. P.W.2 is an identification witness, not an attesting witness recounting
the execution. His evidence must therefore be tested according to the purpose
for which it is tendered. The substantive requirement of due execution and
attestation nevertheless remains.
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41. In Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC
91 relied by the defendant, the attesting witness examined failed to establish the
requisite attestation, while the other attesting witness, though available, was not
examined. Section 71 could not be used to bypass that omission. Here, the
plaintiffs invoke Section 69 on the ground that neither attesting witness can be
examined. Consequently, the failure of an identification witness to speak to the
testatrix’s signature is not equivalent to the deficiency in the testimony of the
attesting witness considered in that decision. This distinction depends upon
satisfactory proof of the foundation for resort to Section 69.
42. The defendant relied upon K. Laxmanan v. Thekkayil Padmini & Ors,
(2009) 1 SCC 354 , requires closer consideration. In that case one attesting
witness had died and the other was medically incapable of giving evidence. The
latter’s son identified his father’s signatures, but the evidence was deficient
concerning attestation and execution. Serious doubts concerning the testator’s
condition and substantial differences in his signatures also remained. The
rejection of the Will rested upon the evidence as a whole; the decision does not
prohibit proof through an attesting witness’s son. The present identification by
P.W.2 and the independent identification by P.W.1 must be assessed on their
own merits, together with capacity and suspicious circumstances. The express
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discussion of Section 69 in paragraph 34 of that judgment concerns the gift deed
also in dispute.
43. These authorities do not establish that P.W.2 must identify the testatrix’s
signature in addition to his father’s attestation. If the two identifications are
accepted on a proper evidentiary foundation, the handwriting requirements of
Section 69 are fulfilled.
44. The defendant’s allegation of forgery must be considered in the light of
the evidence as a whole. Although the defendant has made no specific challenge
to the testatrix’s signature apart from the general allegation of forgery, that
circumstance does not relieve the plaintiffs of their initial burden. Once the
requisite affirmative proof is accepted, a bare allegation unsupported by any
material would not, by itself, displace it.
45. The mere fact that Ex.P2 is written in English while the testatrix signed in
Tamil does not render the Will invalid. The material question is whether she
understood and approved its contents. The sale deed dated 30.11.1974, marked
as Ex.P1, was also written in English and was relied upon by her as a purchaser.
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46. The testatrix’s other daughter, who is elder to the defendant, filed an
affidavit consenting to the grant and affirming the genuineness of Ex.P2. Her
consent is a relevant circumstance, subject to its evidentiary basis. It does not
bind the contesting defendant and cannot substitute for the statutory proof of
execution and attestation.
47. The testamentary petition was filed on 13.11.2017, approximately
nineteen years after the testatrix’s death. The plaintiff’s state that they learnt of
the Will through their elder sister, S. Rajeswari, after receiving the defendant’s
notice demanding partition, and that they issued a reply referring to the Will.
They place their knowledge of its existence in 2006 and attribute the subsequent
delay to financial difficulties. The delay must therefore be examined in two
stages: the period up to the asserted discovery of the Will and the period of
approximately eleven years thereafter.
48. Delay does not, by itself, establish that a Will is forged or justify refusal
of a grant where the Will is otherwise duly proved. Nevertheless, a prolonged
and inadequately explained delay may be relevant in assessing suspicious
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T.O.S. No. 33 of 2018
circumstances. The defendant’s failure to institute a partition suit after receiving
the reply does not amount to an admission of the Will or extinguish her right to
contest it. Similarly, registration may bear upon the allegation of subsequent
fabrication, but does not conclusively establish genuine execution.
49. Ex.P2 refers to the testatrix’s four children, namely, two sons and two
daughters, and expressly states her reason for making provision for the sons
alone: both daughters were married and, according to her, were well settled. The
exclusion of an heir is not by itself sufficient to invalidate a Will.
50. The further objection concerns the ownership of the underlying land. The
schedule indicates that the land belongs to a third party and that the testatrix’s
interest comprises leasehold rights. The scope of this testamentary proceeding is
to determine whether Ex.P2 is her genuine and duly proved Will, and not to
adjudicate competing claims to title. The grant can operate only in respect of
whatever interest the testatrix was legally entitled to dispose of. In the absence
of any independent basis requiring the landowner’s participation in the
testamentary enquiry, non-joinder of that owner does not defeat the proceeding.
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51. The defendant also contends that the property was acquired from the
proceeds of ancestral property belonging to her father and was not the testatrix’s
exclusive property. No evidence has been produced in support of that
contention. In any event, that dispute is outside the limited enquiry into the
validity of the Will and is left open for determination in appropriate
proceedings. A testamentary grant neither enlarges the testatrix’s interest nor
conclusively determines ownership of the schedule property.
52. On a cumulative assessment of the oral and documentary evidence, this
Court finds that the plaintiffs have established the execution and attestation of
Ex.P2 through the mode of proof prescribed by Section 69 of the Indian
Evidence Act, 1872. The evidence also establishes the testamentary capacity of
T. Kannammal, her understanding and approval of the dispositions, and her
voluntary execution of the instrument. The suspicious circumstances urged
against the Will have been satisfactorily explained. Ex.P2 is accordingly held to
be her genuine last Will and testament. Issues Nos.1 and 2 are answered in
favour of the plaintiffs,
53. Issue No.3: To what other reliefs the parties are entitled to?
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The proceedings were originally instituted by plaintiffs 1 and 2 under Sections
222 and 276 of the Indian Succession Act, 1925, seeking probate of the Will
executed by the testatrix, T. Kannammal, in which they were appointed as
executors. Both executors died during the pendency of the suit, and plaintiffs 3
to 9 were thereafter brought on record as their legal representatives.
54. Under Section 222 of the Act, probate can be granted only to an executor
appointed by the Will. The office of executor does not devolve upon the
executor’s legal heirs merely by succession. Consequently, probate cannot be
granted to plaintiffs 3 to 9 in their capacity as legal representatives of the
deceased executors.
55. However, the death of the appointed executors does not preclude the grant
of letters of administration with the Will annexed to persons otherwise entitled
under the Act. In the present case, plaintiffs 3 to 9 are presently beneficiaries
under the will through the deceased executors hence they are, therefore, entitled
to seek letters of administration with the Will annexed.
56. In view of the findings on the preceding issues establishing the due
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T.O.S. No. 33 of 2018
execution and validity of the Will, this suit is decreed as above with costs and
the Letters of Administration with the Will annexed shall be granted in favour
of the plaintiffs 3 to 9, limited to the State of Tamil Nadu and in respect of the
schedule property. The plaintiffs are directed to execute a Security Bond for a
sum of Rs.25,000/- (Rupees Twenty Five Thousand only) each in favour of the
Assistant Registrar (Original Side), High Court, Madras. The plaintiffs shall
duly administer the estate covered by the grant, file a full and true inventory of
the estate within six months from the date of grant of Letters of Administration
and render a true and proper account within one year from the date of grant.
26-10-2026
AY
List of witnesses examined on the side of the Plaintiffs:
PW1 – T.Varadhan
PW2 – N.Selvakumar
List of documents marked on the side of the Plaintiffs:
Ex.P1 Photocopy of the sale deed dated 30.11.1974 executed in favour of
Mrs.Kannammal (compared with the original)
Ex.P2 Original Will dated 05.03.1980 executed by Mrs.T.Kannammal
Ex.P3 Original death certificate of Mrs.T.Kannammal.
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T.O.S. No. 33 of 2018
Ex.P4 Photocopy of the legal heirship certificate of Mrs.T.Kannammal
(compared with the original)
Ex.P5 Affidavit of assets showing the net value of the estate as
Rs.84,00,000/-
st
Ex.P6 Signature of 1 attesting witness Late V.Nagalingam in the Will who
is the father of Mr.N.Selvakumar (PW2).
Ex.P7 Photocopy of the settlement deed under Doc. No. 1078/2002
executed by V.Nagalingam Chettiar in favour of his wife
Mrs.Durgabai Ammal and N.Selvakumar dated 06.06.2002.
Ex.P8 Photocopy of the family card of N.Selvakumar.(Original produced,
compared and returned)
Ex.P9 Photocopy of the Aadhaar card of N.Selvakumar. (Original
produced, compared and returned)
Ex.P.10 Online copy of the death certificate of Late V.Nagalingam dated
06.05.2010.
Ex.P.11 Photocopy of the legal heir certificate of Late V.Nagalingam dated
01.08.2013. (Original produced, compared and returned).
List of witnesses examined on the side of the Defendant:
DW1 – K.Rani @ Kotteeswari.
List of documents marked on the side of the Defendant: Nil
26.10.2026
ay
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T.O.S. No. 33 of 2018
DR.A.D.MARIA CLETE, J
AY
PRE-DELIVERY JUDGMENT MADE IN
T.O.S. No. 33 of 2018
26-10-2026
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