SHANTHA Vs. SHARADA

JUDGEMENT

(1.) P.Sundaramurthy died on 6.1.1981 leaving behind him a legal battle to be fought by his two daughters, Shantha and Saradha, over a Will dated 6.12.1980 and also a son by name Shankaramurthy and wife Virudambal Ammal alias Babu Ammal. The respondent in this appeal, Saradha, filed an Original Petition seeking for grant of Probate of the Will. Shantha, the appellant in this appeal, resisted the prayer and thereafter, it was converted as a plaint and numbered as T.O.S.No.20 of 1987. On the side of the respondent/ plaintiff, three witnesses were examined. The plaintiff examined herself as P.W.1 and also examined the doctor, P.W.2 as well as P.W.3, an attesting witness to Ex.P.1, the will. On the side of the appellant/defendant, she examined herself as D.W.1 as well as her husband as D.W.4. Two other witnesses were examined as D.Ws.2 and 3. The contention of the appellant/defendant before the learned Single Judge in T.O.S.No.20 of 1987 is that in view of the suspicious features surrounding the will, the probate should not be granted. According to her, the other legal heirs have been disinherited by Ex.P.1 and that the evidence of P.W.3 as regards the place of execution of the will is contradictory to his earlier statement made in the affidavit filed in support of Original Petition and that the signature found in Ex.P.1 is not the usual signature of the testator. The learned Judge, rejecting the contentions of the defendant, allowed T.O.S.No.20 of 1987 and granted the probate of the will. Aggrieved by the said order of the learned Single Judge, the present O.S.A. is filed by the defendant.

(2.) Mr.R.Krishnaswamy, the learned Senior Counsel appearing for the appellant/defendant contends before us that in view of the suspicious features surrounding the will, the learned Single Judge has erred in allowing T.O.S.No.20 of 1987 and ought not to have permitted the probate of the will. It is his submission that the signature found in Ex.P.1, the will, is not the usual signature of the testator P.Sundaramurthy, as could be seen from Exs.P.5 and P.13, wherein he has signed as P.S.Murthy. It is his further submission that there is no satisfactory evidence as to where the will was executed, in view of the contradiction found between the statement made by P.W.3 in the affidavit and the evidence given by him in Court, since, according to the learned counsel, in the affidavit filed, which was earlier in point of time, he had come out with a version that the will was executed at the house, whereas later, in Court, he came out with a version that it was executed at the bank in the presence of Pitchai, another attesting witness. The learned counsel also submits that there is no reason mentioned in the will as to why the testator has decided to disinherit the other two legal heirs and it is also a circumstance, which creates a suspicion about Ex.P.1 and therefore, the O.S.A. is to be allowed.

(3.) Per contra, Mr.V.S.Subramanian, the learned counsel appearing for the respondent/plaintiff, submits that the evidence on record discloses that there is no material to indicate that the will was not executed by the testator, Sundaramurthy and the contradiction in the statement made by P.W.3 and his evidence is not material enough to discredit his evidence. It is his further submission that disinheritance, by itself, cannot be a reason to reject the will.