A JAYAVEERAPANDIAN Vs. R RENGARAJAN

JUDGEMENT

(1.) APPLICATION No.4266 of 1999 has been filed by a third party to the proceedings praying to implead him as party respondent in the above original petition. APPLICATION No.3843 of 2003 has been filed by the petitioner in the main O.P. praying to dismiss the above APPLICATION No.4266 of 1999.

(2.) ON a perusal of the materials placed on record and upon hearing the learned counsel for both, it comes to be known that the first respondent in Application No.4266 of 1999, who is the applicant in Application No.3843 of 2003 viz., R.Rangarajan has filed the main O.P. under Secs.222 and 276 of the Indian Succession Act, 1925 praying to probate the last Will and Testament dated 10.2.1993 of one Albert Holmes Sargunar as against the wife, son and the adopted daughter of the said Albert Holmes Sargunar on averments such as that the deceased Albert Holmes Sargunar had executed his last Will and Testament dated 10.2.1993 thereby appointing the petitioner as the sole executor thus bequeathing the only item of the immovable property in the city at No.S-8, M.G.R. Road, Sastri Nagar, Adyar, Chennai-20 further granting an absolute interest in favour of his wife Mrs.Catherine Sargunar, the first respondent in the O.P, subject to the clearance of the Indian Overseas Bank and other debts such as Court decree as they created charge on the property; that the testator has authorised and directed the petitioner as his executor to sell the property to any purchaser, who is willing to repay the above said debts on the property and pay the remaining amount of the sale proceeds to his wife Catherine.

(3.) THE further submissions in the counter are that the deceased A.H.Sargunar had executed a Will on 10.10.1975 bequeathing the property in favour of his son J.E.T. Sargunar, his wife Flora Rajam Sargunar and his daughter Priyardshini, in which he had specifically states that his adopted daughter Priyadharshini is living with her husband T.D.Dawson at 6, BIM, RSAT, Sungei patani, Kedah Staste, Malaysia; that the testator had also given a share to his wife Floor Rajam Sargunar and the said Flora Rajam Sargunar, when alive was a practising Doctor and had left another Will dated 31.10.1975 appointing A.D"Souza, the well known senior counsel, as her executor and through that Will, the said Flora Rajam Sargunar had bequated her share in the suit property to her son J.E.T. sargunar and one third of her movable to her daughter Priyadharshini, which would show that all along during the lifetime of Albert Holmes Sargunar, they had love and affection to their son J.E.T. Sargunar, his wife Gina Sargunar and to their adopted daughter Priyadharshini and they have bequeathed their rights to the son and daughter and as such, the petitioner in the mainO.P. has no right to call himself the Executor nor the Catherine Sargunar, the alleged second wife, to claim any right over the property; that the Will dated 10.2.1993, alleged to have been executed by A.H.Sargunar is not a genuine one and the same has not been executed by him voluntarily and the first Will dated 10.10.1975 alone is valid in law; that the execution of the second Will itself is doubted as it is not a registered Will, which creates a doubt about the genuineness of the Will; that in the present O.P., the alleged Executor, in connivance of the Caterine Sargunar, had purposely given the address of Priyadharshini as S8, M.G.Road, Sastri Nagar, Adyar, Chennai-20 whereas now she is residing in Malaysia, which had been further proved by the second Will itself which contains the statement that Priyadharshini is in Malaysia; that in spite of specific direction by this Court, the executor had not taken steps to serve notice to Priya and J.E.T. Sargunar in the main O.P., but this applicant has taken notices to their addresses; that the executor had changed the counsel thrice and there was no representation before the Master on so many occasions which would show that he has not come to the Court with clean hands and he had suppressed the materials before this Court which cast a doubt that the alleged Will under probate is not a genuine one.