E.VEDAGIRI Vs. D.VIJAYALAKSHMI

JUDGEMENT

(1.) THE Plaintiff filed a Petition in O.P. No.870 of 1999 for Probate of a Will executed by Late Mrs. E. Kuppammal, wherein, it is stated that the suit property was originally belonging to the said Late Mrs. E. Kuppammal, wife of Late TTiiru K. Ekambaram and their legal heirs are: (i) V. Sai Prasad, (ii) D. Vijaya Lakshmi, (iii) Jeevakumar, (iv) E. Ganesh Kumar, (v) S. Palani, (vii) Mahalakshmi, and (viii) S. Selva Ganesh. It is also stated in the O.P., that the above said Mrs. E. Kuppammal executed a Will on 10.4.1994 in the presence of witnesses and in the said Will, the deceased Kuppammal appointed the Plaintiff as an executor and she died on 24.2.1997. Therefore, the Plaintiff filed the above said O.P. for grant of Probate of the Will by impleading 8 Respondents and among them, except the Defendant, namely, D. Vijaya Lakshmi, all other Respondents have not objected the above said Will by filing their Consent Affidavits. The Defendant alone objected to probate the above said Will and hence, the above said OP was converted as T.O.S. No. 8 of 2008.

(2.) THE Defendant has not disputed that the suit property originally belonged to Late Mrs. E. Kuppammal and also not disputed the relationship of the parties. According to the Defendant, Late Mr. K. Ekambaram, husband of Late Mrs. E. Kuppammal, during his life time, maintained the suit property and he assured that both the daughters, namely, S. Suseela and the Defendant, namely, D. Vijaya Lakshmi will be allotted second floor and the said Mr. Ekambaram died in February, 1970. After the death of Ekambaram, the property was under the control and management of Mr. E. Viswanathan being the brother of this Defendant. The mother of the Defendant, namely, deceased E. Kuppammal along with three children of the pre-deceased sister, namely, Mrs. S. Suseela were living jointly in the above said property. The above said Suseela died in the year 1990. The eldest son, namely, E. Viswanathan died in the year 1993 and thereafter, the Plaintiff forcibly took full control and management of the property and collected several lakhs as rent advance and maintained in the Bank Account. The owner of the property, namely, Late Mrs. E. Kuppammal died on 24.2.1997. During the 11th day ceremony, it was assured that all the children will have equal and simultaneous shares in the property and the Plaintiff never objected of such proposal and only after 19 months, for the first time, the Plaintiff informed this Defendant over phone that a Will is available, but failed and neglected to give a copy in spite of Defendant's son, namely Senthil's demands. Therefore, the non-publication of the alleged Will for four years after its execution and two years after the death of Late Mrs. E. Kuppammal establishes that the alleged Will is unnatural and fabricated. Further, the deceased Mrs. E. Kuppammal maintained a Bank Account and she used to sign and operate the account. The two alleged Attesting Witnesses are the close childhood friends of the Plaintiff. The deceased Mrs. E. Kuppammal was a chronic diabetic patient with poor vision and she was going into coma in the year 1994, 1995 & 1997 and she died on 24.2.1997. It is also denied the averments in the Plaint that the testatrix subscribed her name and signed in English and also denied that the Attesting Witnesses had visited the testatrix on her request. At the relevant time, the testatrix did not make any mention about any document to the Defendant. Therefore, the Defendant prayed to dismiss the Probate proceedings.

(3.) TO prove the above said Will, the Plaintiff himself deposed as PW1 and also examined one Balasundaram who is one of the Attesting Witness of the above said Will as PW2 and one Mr. Sai Prasad S/o Late E. Viswanathan who is the eldest son of the testatrix, namely, Late Mrs. E. Kuppammal, as PW3 and also examined one S. Shankar, who is the Manager in Central Bank of India as PW4. On the side of the Plaintiff, 20 documents were marked as Exs.Pl to P20. Ex.Pl is the Death Certificate of the Testatrix Late Mrs. E. Kuppammal, Ex.P2 is the Will executed by Late Mrs. E. Kuppammal, Ex.P3 is the Affidavit of assets, Exs.P4 to P10 are the consent Affidavits filed by other Respondents in the OP, Exs.P11 to P14 are the original Lease Agreements, Ex.Pl5 is the Affidavit of Attesting Witness, Ex.P16 is the Bank Card issued by the Central Bank of India with photos and LTI of the deceased Late Mrs. E. Kuppammal to prove her specimen signatures and another. Ex.P17 is the copy of the Application for opening Savings Bank account. Ex.P18 is the Xerox copy of the Letter sent by the Plaintiff to the Defendant, Ex.Pl9 is the legal Notice sent by the Plaintiff to the Defendant's Counsel and Ex.P20 is the Death Certificate of one of the Attesting Witnesses in the Will, namely, J. Mahadevan.