After Original 1994 Will Reached Him In 2017, Madras HC Lets Son Administer Father’s Estate Despite Granddaughter’s Delay Challenge

The petitioner sought Letters of Administration with the Will annexed in respect of a registered Will dated 10 October 1994, allegedly executed by his father, M. Shanmugam Pillai, who died on 7 December 1997.

The Will bequeathed the testator’s self-acquired properties equally to the petitioner and his elder son.

The petitioner said he learned of the Will in 2014, but also testified that he learned of it after his brother’s death in 2016; the original Will remained in the brother’s custody until it was handed to the petitioner in March 2017.

The defendant, the daughter of the deceased elder son, opposed the application on limitation and validity grounds, relying in part on an earlier partition suit.

A caveat converted the original petition into a testamentary suit.

The surviving attesting witness testified for the petitioner; the other attesting witness had died.

Section 63(c) of the Indian Succession Act, 1925 requires a Will to be attested by two or more witnesses; Section 68 of the Indian Evidence Act, 1872 requires proof through at least one attesting witness.

Article 137 of the Limitation Act, 1963 applies to applications for probate or Letters of Administration, but the right to apply is not necessarily triggered by the testator’s death and is treated as continuing; delay is relevant and requires explanation, but does not automatically bar the application.

The Court relied on Kunvarjeet Singh Khandpur v. Kirandeep Kaur, (2008) 8 SCC 463, Krishnan Kumar Sharma v. Rajesh Kumar Sharma, (2009) 11 SCC 537, and Janaki Devi v. R. Vasanthi, 2005 (1) CTC 11, on limitation and delay, and on H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443, Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91, and Ramesh Verma v. Lajesh Saxena, (2017) 1 SCC 257, on proof of Wills.

The Supreme Court’s COVID-19 limitation orders excluded the period from 15 March 2020 to 28 February 2022.

The Court rejected the argument that limitation necessarily began on the testator’s death.

It accepted the evidence that the original Will was held by the petitioner’s brother and delivered to the petitioner in March 2017 as a material explanation for the delay; it also held that the COVID-19 exclusion applied to the limitation calculation.

On proof, the surviving attesting witness testified to the testator’s execution and his own attestation, while the other attesting witness’s death was established.

The Court found that the witness’s not having seen the drafting, and learning the Will’s contents at registration, did not by themselves defeat proof of attestation.

The registered Will and the testator’s earlier letter provided corroboration; the defendant produced no convincing evidence of incapacity, coercion, or undue influence.

The daughters’ exclusion, standing alone, was not sufficient to invalidate the Will.

It decreed the suit and directed that Letters of Administration with the Will annexed be issued to the petitioner, limited to the State of Tamil Nadu, subject to a ₹25,000 security bond and the statutory duties to file an inventory within six months and render accounts within one year of the grant.

No order as to costs was made.