D. VENKATRAMAN(DECEASED Vs. D.G. PREMALATHA

JUDGEMENT

(1.) This testamentary original suit is filed by the son and two grand sons of the testator for the grant of letters of administration with the Will annexed in respect of the last Will and Testament dated 06.03.1989 of the late D.Govardhana Ram Naidu, which was registered before the Joint Sub Registrar Office, Kodambakkam, on 08.03.1989 as Document No.38 of 1989 in Book 3. The testator died on 01.08.1992 and O.P.No.412 of 2012 was filed on 13.12.2012. The Defendants in the suit are the three daughters of the testator and they are contesting the Will. In order to prove the Will, evidence was adduced by the Plaintiffs by examining the third Plaintiff as P.W.1. Exs.P1-P10 and D1-D2 (in cross-examination) were exhibited through him. The wife of one of the attesting witnesses was examined as P.W.2 and the son of the other attesting witness was examined as P.W.3. Each of these witnesses were cross-examined by the learned counsel for the Defendants. As regards the Defendants, evidence was adduced by examining the third Defendant as D.W.1. Exs.D3-D4 were exhibited through her and she was cross-examined by the learned counsel for the Plaintiffs.

(2.) I heard the learned counsel for the Plaintiffs and the learned counsel for the Defendants.

(3.) The learned counsel for the Plaintiffs submitted that the Will was executed by the deceased first Plaintiff's father, the late D.Govardhana Ram Naidu, on 06.03.1989. He ordinarily resided at No.17, First Cross Street, Trustpuram, Kodambakkam, Chennai - 600 024. The said Will was attested by two attesting witnesses, namely, K.L.Palaniswamy and S.Ranganathan. Under the registered Will, the immovable property of the testator at Plot No.9, Trustpuram, Kodambakkam, Chennai-600 024 was bequeathed by way of a life estate to the first Plaintiff and by way of an absolute estate to the second and third Plaintiffs. The testator died on 01.08.1992. O.P. No.412 of 2012 for the grant of letters of administration was filed on 13.12.2012. As on the date of filing of the O.P., both the attesting witnesses were dead. Consequently, the first attesting witness's son was examined as P.W.3 and the second attesting witness's wife was examined as P.W.2. The learned counsel submitted that on account of the fact that the Will is a registered Will, there is a presumption that the Will was duly executed and registered. In this connection, he referred to a judgment of this Court in V.Lakshminarayanan v. S.V.Balasubramanian,2009 1 MadLJ 966, wherein, at paragraphs 12 and 23, this Court referred to Section 63 of the Indian Succession Act,1925 (the Succession Act) and Section 68 of the Indian Evidence Act,1872(the Evidence Act). After referring to the aforesaid Sections, the Court held that the execution of a Will must be proved by examining at least one attesting witness, if an attesting witness is alive and capable of giving evidence. Further, the Court held that a registered Will is entitled to the presumption under Section 114(e) of the Evidence Act and that the act of the Registrar is an official act and, therefore, there is a presumption that it was made regularly and that the signatory to the document was in a sound disposing state of mind at the time of signing the document and affixing the thumb impression, though the Sub Registrar could not identify the testator. In addition, the Court held that even in case of death of attesting witnesses, the genuineness of a Will can be proved by way of available oral and documentary evidence, if such evidence is legally acceptable. With regard to the delay in filing the Petition, he also relied upon the judgment of a Division Bench of this Court in S.Vatsala v. K.S.Mohan and others (Vatsala), 2016 1 LW 577, wherein the Division Bench held, inter alia, at paragraph 13, "Delay by itself cannot be a ground for refusing the grant of probate otherwise when there is proof of execution of the Will by acceptable and convincing oral and documentary evidence. In the absence of any specific period of limitation, Order XXV Rule 9 of the Original Side Rules only mandates the propounder to make specific averments explaining the reasons for the delay so caused." In addition, at paragraph 25, the Division Bench held as under: