Application No.5349 of 2008 In O.P.No.875 of 2006. Case: S. V. Ramakrishnan Vs 1. P. R. Sethuraman, 2. P. R. Ramanathan, 3. P. R. Venkataraman, 4. P. R. Narayani. High Court of Madras (India)
| Case Number | Application No.5349 of 2008 In O.P.No.875 of 2006 |
| Counsel | T. V. Ramanujan, S. Anuradha Balaji, K. Hariharan, Govi Ganesan, K. V. Rajan |
| Judges | K. Chandru J. |
| Issue | Indian Succession Act, 1925 - Sections 63, 222, 263, 276; Indian Evidence Act, 1872 - Section 68, 118; Code of Civil Procedure, 1908 - Order 18 Rule 4 |
| Judgement Date | July 13, 2009 |
| Court | High Court of Madras (India) |
Judgment:
K. Chandru J.
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This application is filed by the applicant, who was the fourth respondent in the main O.P. It was this applicant who took out an application in A.No.1315 of 2006 before this court to a citation to the respondent to bring the Will left by the testatrix to this Court. He claimed knowledge about the Will when there was a partition suit was heard by the City Civil Court filed by the first respondent in the O.P. The main O.P. was filed by the first respondent P. R. Sethuraman under Sections 222 and 276 of the Indian Succession Act, 1925. The O.P. was filed for the purpose of obtaining a probate in terms of the last Will and Testament left by Late Dr.S.V.Rajalakshmi, who is the sister of the applicant.
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When the O.P.No.875 of 2006 was filed before this court, apart from the applicant, there were three other respondents. They were all duly served. Insofar as the applicant is concerned, he was the fourth respondent in the O.P. and he was duly served and had entered his appearance through counsel M/s.K.V.Rajan and K.Suresh Kumar. After summons were issued, the applicant also filed an affidavit, dated 20.2.2006 in A.No.1315 of 2006 stating no objection to the first respondent to bring the Will of Testatrix. This Court, by an order, dated 6.3.2008, directed the learned Master to record evidence. Accordingly, the learned Master of this Court recorded evidence of P.W.1 (P. R. Sethuraman, the first respondent herein) and P.W.2 (N. Gunaseelan), the attesting witness on 12.3.2008 and Exhibits P.1 to P.5 were marked through them. Then, the matter came to be posted before this court and this court, by an order, dated 17.3.2008, granted probate.
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In all these proceedings, namely at the time when the court ordered the Master to record evidence and when the Master recorded evidence on 12.3.2008 and finally when a final grant came to be made on 17.3.2009, the counsel for the applicant's name was shown in the cause list printed for those dates. There was no opposition for the grant of probate either from the side of the applicant or from anyone else. Even when the Master recorded evidence, neither P.W.1, who was the first respondent nor P.W.2 were cross examined by the applicant.
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After a lapse of considerable period, the applicant has come up with the present application to set aside the grant of probate by stating that the Will executed by his sister Late Dr.S.V.Rajalakshmi was surrounded by suspicious circumstances. He contended that the very execution of the Will was doubtful and that the Will was not proved beyond doubt. The ground set out for throwing suspicion are as follows:
(i) P.W.2, Gunaseelan was incompetent to be an attesting witness and who attested the Will on 21.1.1994. According to the applicant, as he was born on 28.5.1977, he was only 16 years and 9 months on the date of attesting the Will. Since P.W.2 on the date of attesting the Will, was a minor, he was an incompetent witness.
(ii) The second attesting witness one D.Sundarmoorthy, who attested the Will, was an Auto driver and he would not have known English to understand the Will.
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On the question of delay in filing the application it was stated that since the applicant had to make enquiries on this issue, there was a delay in filing. On notice from this court, the first respondent has filed a detailed counter affidavit along with a typed set of papers. In the counter affidavit filed by the first respondent, it is stated that the applicant was throughout present in the proceedings and had never raised such objections and it was an after thought. It was also stated that the testatrix was a Doctor by profession and she has made a conscious decision in writing the Will on 21.1.1994. It was also registered with the Registrar's Office. In that Will, it can be found that she had made a conscious decision to...
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