JANAKI VASUDEVAN Vs. VASANTHA SRINIVASAN

JUDGEMENT

(1.) CHALLENGE is made to the Judgment of the learned Single Judge passed in TOS.No.33 of 1997 whereby probate was ordered to be issued. The first respondent/plaintiff filed a Original Petition in O.P.No.298 of 1997 which was subsequently converted into TOS.No.33 of 1997 seeking grant of probate with the following averments:

(2.) THE petitioner/plaintiff is the daughter of Sri K.Vasudevan and the first defendant Janaki Vasudevan. THE said Vasudevan died on 22.5.1985 leaving behind him the first defendant wife, second defendant Son, third defendant and the plaintiff, who were the daughters. He was the absolute owner of an immovable property bearing Door No.5, 4th Street, Gopalapuram, Madras-86. He executed the last will and testament on 8th January 1983 whereby he made a bequest of the said immovable property in favour of all the four legal heirs equally. THE said Will was attested by two witnesses as found in the document and that was his last will and it has to be probated. Hence, there were exchange of notices and thereafter the plaintiff filed proceedings before the Court seeking to allow her to prove the Will and to grant probate in her favour. THE suit was resisted by the first defendant inter alia stating that the suit was to be dismissed for the reason that the first defendant, the wife of said Vasudevan, was all along living and staying with her husband. He never executed any Will. THE will is a rank forgery. It was brought about by the plaintiff and the third defendant. THEy used to visit the house frequently. Both of them are financially affluent. THEre was no occasion or reason for the said Vasudevan to execute the will. In order to make an unlawful claim, the plaintiff and the third respondent have fabricated the same. Hence, it was not a fit case for grant of letters of administration and the suit was to be dismissed.

(3.) ADVANCING arguments on behalf of the appellants, learned counsel would submit that from the evidence adduced before the learned Single Judge, it was quite clear that the first defendant-wife was all along with Vasudevan and she was never absent leaving him and a written statement has also been filed to that effect. Apart from that it is an admitted fact that the plaintiff and the third defendant daughter were financially affluent and under such circumstances, there were no compelling reason for the said Vasudevan to execute any Will. There was no property except the property in question. Hence, it was a will, which was a fabricated one and created by the plaintiff and the third defendant. Added further, the will is not a registered one. Except, P.W.2, who was one of the attesting witnesses and who was the neighbour, the other attesting witness was not examined. As per the evidence of P.W.2, it could be seen when Vasudevan was taking treatment, as he had undergone an operation, he had executed the Will. Under such circumstances, the learned Single Judge ought to have held that the Will was not validly executed and attested. Insofar as pages 8 and 9 of the judgment are concerned, the learned Single Judge held that the title over the property and to what extent the will could be executed are all matters, which could not be decided by the Court of testamentary jurisdiction and hence, that part of the judgment has got to be set aside.