SAMUEL B P PONNAIYA Vs. NIL

JUDGEMENT

(1.) This petition is presented by the son of the deceased testatrix-Samuel B.P. Ponnaiya for grant of probate in respect of the Will dated 24-11-2008. The petition is in order. The requisite documents, more particularly the death certificate dated 26-12-2008 certifying the death of Savitri Ponnaiya on 25-11- 2008, the affidavits of the petitioner, the two attesting witnesses viz., Godfrey David and J.M.J. Samuel, are on record. Though service is effected in The Hindu' both Chennai and Bangalore editions on 2-12-2009 fixing the date of hearing as 6-1-2010, there is no contest for grant of probate.

(2.) Though the requirement of law is that in the case of a contest the petitioner must go through the exercise of recording the evidence before grant of probate or letters of administration, in the instant case there is no contest and therefore, it would be unnecessaryto go through the rigmarole of recording evidence, being in the nature of ex parte proceedings. This was the very same view taken by a learned single Judge of this Court in Prob. CP. 16/98 DD 12-10-1998. The safeguards in law, more appropriately filing of the petition in a prescribed form, affirmed before the duly designated authorities having been complied with, there is no necessity to reproduce what is already in the pleadings by recording formal evidence. In the light of Section 281 of the Indian Succession Act, 1925 r/w rules framed by this Court, there is substantial compliance of law in the present petition. In my opinion, the will as claimed though titled Codicil dated 24-11-2008 is properly proved within the framework of law and the petitioner qualifies for the grant of the relief sought for.

(3.) The deceased Smt. Savitri Ponnaiya has left behind the Codicil, which, I find to be in order. The estate is left behind to the son-petitioner herein and daughter Mrs. Vennila Manoharan (Nee Ponnaiya). The Codicil is executed on 24-11-2008, a day prior to the death of the testatrix, who was admitted to hospital, whence the Medical Doctor treating the deceased, by letter Annexure-N certifies that the deceased was well oriented, conscious and coherent to sign the Will and was due to be discharged. The Codicil states that the testatrix in a sound and disposing mind executed the Codicil on her volition. The affidavits of the two attesting witnesses clearly indicate that they were present at the time when the Codicil was signed by the deceased.