SAMPATHLAKSHMI Vs. E A MURTHY

JUDGEMENT

(1.) This suit has been filed for issue of a probate in respect of the last Will and Testament of E. Ponnambal wife of late Dr. A. Ekambaram, executed at Madras on 19-11-1990 in the presence of the witnesses.

(2.) The plaintiffs have alleged in the plaint that E. Ponnambal was ordinarily residing at No. 54, IV Main Road, Gandhinagar, Adyar, Madras and she died at Sivaram Nursing Home, Adyer, Madras. She left behind her one son viz. E.A. Murthy and three daughters viz. Sampathlakshmi, Vatsala and Ahalya as legal heirs. They are only entitled to the assets of the deceased under the Will. The jewels have been divided and given to the grand children. The last Will and Testament of the deceased was duly executed by her at Madras on 19-11-1990 in the presence of the witnesses and it has been registered at the Sub-Registrar's Office at Virugambakkam. Plaintiffs are the executors appointed under the Will. Hence the suit.

(3.) The defendant filed a written statement alleging that he is the only son of E. Ponnambal. The Will in respect of which probate is sought for is not a genuine one as will be evident from various circumstances. He was 17 when his father passed away in 1954. His father Dr. Ekambaram had borrowed heavily and was unable to repay his creditors. The defendant and his three sisters and their parents were all accommodated in the residence of Mrs. Chandra Lakshmanaswamy Mudaliar, elder sister of the testatrix. It was the desire of the testatrix that the family should have a house of its own. She requested her brother-in-law Dr.V.G. Lakshmanaswamy Mudaliar to help her with funds. At that time Madras Co-operative House Constructions Society had a scheme under which houses could be bought on hire purchase. Dr. Lakshman-swamy Mudaliar helped the testatrix for the purchase of the house property at No.54, 4th Main road, Gandhi Nagar, Adyar, Madras in the name of the testatrix. The defendant discharged the loan amount which his mother had obtained from Dr. Lakshmanswamy Mudaliar for the purchase of the said house. The defendant was first commissioned in I.A.F. in February 1959 as a Pilot and he retired in February 1989 as Wing Commander. Out of his earnings the said loan was paid off. He also cleared all the debts that had been incurred by the family in connection with the marriages of his sisters Vathsala and Ahalya. From the time of his marriage till he retired from service, the testatix stayed only with him except for brief periods when she would visit her daughters. Some time in 1973, he learnt from his mother that she had executed a will bequeathing the said house in his favour. In 1973 his mother was aged 62 years. She was of a sound and disposing state of mind. In October 1985 his mother was operated for breast cancer at the command Hospital, Air Force, Bangalore. His mother was also suffering from ischemic heart disease, hyper tension, diabetes and cataract of one eye. She was operated for cataract of the other eye earlier. For the said ailments, she was receiving treatment at Bangalore. After his retirement, he moved along with wife and 2 daughters to his mother's house at No. 54, 4th Main Road, Gandhi Nagar, Adyar, Madras. His mother also came with him. He joined in Brilliant Computer Centre as Deputy Manager (Admn.) and his wife joined in Brilliant Tutorials. During their absence the first plaintiff would visit their mother. In or about November 1990, the first plaintiff took the testatrix to her house and the testatrix remained with her for about a fortnight. After her demise and when the ceremonies were in progress, the first plaintiff produced a xerox copy of the Will said to have been executed by his mother dated 19-11-1990. In 1990, the testatrix was aged about 80. The recitals in the said Will run counter to those in the Will dated 12-8-1973. The execution of the said Will dated 19-11-1990 was not conveyed to him by his sisters. The said Will had been registered in the office of the Sub-Registrar, Virugambakkam. It is alleged in the said Will that the testatrix was a resident of No. 54 Main Road, Gandhi Nagar, Adyar, Madras. Under the circumstances, it is not known how the said Will had been registered at Virugambakkam. In November 1990, his sister the first plaintiff took his mother for a stay of about 15 days. The first plaintiff must have colluded with the other relatives and should have brought about this Will. His mother had absolutely no independent source of income. He had lost all his life's earnings in a case of cheating. The testatrix had all along been staying with him and he was continuously looking after her. Under these circumstances it was imposibble for her to have changed the Will on her own and that too without information to him. The alleged Will is one procured by practising deception upon the testatrix and no legal effect can be given to the same. Hence the suit may be dismissed with costs.