T KANNIAH RAO Vs. INDER RAO

JUDGEMENT

(1.) THE case of plaintiff is as follows: Krishna Bai, widow of late Bharamji Rao died on 7.8.1982 at Madras, possessed of the properties. While she was alive she executed a will on 19.1.1982 at Madras in the presence of the attestors who have attested the same. As per the provisions of the will the petitioner is the sole legatee and beneficiary being the husband's brother's son and after the death of Krishna Bai the plaintiff had fallen ill and was not in a position to apply to the Hon"ble Court. Hence the suit.

(2.) THE defendant has filed the written statement pleading thus: It is true that Krishna Bai died at Madras on 7.8.1982. Krishna Bai could not have executed the will as she was bed-ridden, ill and unconscious. She was not in a sound on state of mind prior to the date of the alleged will. Thumb impression had been obtained without the knowledge and consent of Krishna Bai, apparently when she was in unconscious state of mind. By playing fraud upon the deceased the plaintiff has brought about the will. THE attestors to the will are close associates of the plaintiff. THE will is not genuine nor it is valid. THE deceased was getting good rental income from the properties and she was not supported by the plaintiff. THE plaintiff is not entitled to the grant of probate. Further Krishna Bai did not have any capacity to execute a will in view of the provisions of the Family arrangement dated 30.4.1953. THE defendant prays that the suit may be dismissed with costs.

(3.) NOW coming to the execution part of it the plaintiff has examined two witnesses. P.W.1 does not say as to how Krishna Bai came to the Registrar's Office. Krishna Bai is said to have resided at No.4, Peter's Road, Royapettah. P.W-1's evidence shows that the Sub-Registrar's office where the registration took place was in Foreshore Estate. He would say that Krishna Bai came to the Sub-Registrar's Office in a taxi. But who brought her whether she came up of her own, they are not explained by P.W.1. It is material because the evidence of P.W.1 and 2 would disclose that just a month or two prior to the execution of the will she had an accident resulting in fracture of the hip bone and was bed-ridden and that only after 4 or 5 months of treatment she became allright. Therefore when it is so, it is the bounden duty of the plaintiff to explain as to how the testatrix could come to the Sub-Registrar's Office for execution of the document. That has not been satisfactorily explained by the plaintiff. This is yet another circumstance that accentuates the lack of evidence on execution and makes the execution of the will a subject of mystery. According to P.W.2 himself and P.W.1 accompanied Krishna Bai in a Taxi to the Sub-Registrar's Office, whereas P.W.1 does not say so.