IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on 30.10.2025

Pronounced on 02.01.2026

CORAM

THE HON'BLE DR.JUSTICE R.N.MANJULA

T.O.S. No. 7 of 2018 and C.S. No. 766 of 2014

T.O.S. No. 7 of 2018:-

Tmt.Rekha, W/o.Senthil Kumar

No.1/4489/E, Ammasekottai

Kollanur, TNEB Colony

Vennampatti, Dharmapuri – 636 705.

..Petitioner / Plaintiff

Vs

S.R.Balaji, S/o.K.Ramalingam

No.C-90, G-2, Diamon's Grand Flite

No.13

th

, Jaganathan Street

Periyar Nagar, Chennai-600099.

..Caveator / Defendant

PRAYER :This Testamentary Original Suit has been filed under Sections 222 and

276 of the Indian Succession Act praying to grant of Probate.

For Plaintiff : M/s.Rajeshwari Karthikeyan

For Defendant : M/s.Rajaramani for Mr.R.Suresh

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C.S. No. 766 of 2014:-

1.S.R.Balaji

2.K.Ramalingam. .. Plaintiffs

Vs.

Rekha Senthil Kumar ... Defendant

Prayer: This Suit has been filed under Order IV Rule 1 of Original Side Rules

read with Orders VII Rule 1 of Code of Civil Procedure, praying to pass a

judgment and decree

(a) for a preliminary decree for partition granting 2/3 share to the 1

st

plaintiff in the schedule mentioned properties and allot the same

to the 1

st

plaintiff by metes and bounds;

(b) ordering the appointment of Commissioner to effect the division

of schedule property by metes and bounds and put the plaintiff

into possession of the same, in the event of the defendant

disagreeing for the partition as relief granted in prayer (a);

(c) to declare that the 1

st

plaintiff is entitled for custody of the three

title deeds of the properties mentioned in the schedule hereunder;

(d) to grant an order of mandatory injunction directing the defendant

to hand over the title deeds of the schedule properties;

(e) to pay the cost of suit and

(f) to grant such further or other relief as this Court may deem fit and

proper in the circumstances of the case.

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For Plaintiffs :Mr.Rajaramani for Mr.R.Suresh

For Defendant : M/s.Rajeswari Karthikeyan

COMMON JUDGMENT

The Original Petition filed by Tmt. Rekha seeking grant of Probate has been

converted into Testamentary Original Suit in view of the Caveat filed by the

defendant, viz., S.R.Balaji.

T.O.S. No. 7 of 2018:-

2. The short facts pleaded by the plaintiff are in brief:-

The plaintiff is the only daughter of the Testatrix, viz., R.Selvakumari,who

had executed a registered Will dated 17.06.2009 videdocument No. 111 of 2009

registered on the file of the Sub Registrar, Sembium, Chennai. As per the

arrangements made in the Will, in respect of item No. 1, the son/defendant has

been allotted with the eastern half portion (1350 sq. ft.) and daughter/plaintiff has

been allotted with the western half portion (1350 sq. ft.) and in respect of item No.

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2, the defendant has been allotted with 975 sq. ft. in the eastern portion and the

plaintiff has been allotted with 1170 sq. ft. in the southern portion. However, life

interest has been given in respect of the properties involved in the Will for the

husband of the Testatrix. The Testatrix died on 16.01.2012 and her husband died

on 14.07.2016, leaving behind the plaintiff and the defendant alone as their legal

heirs. As the Will has come into effect, the original petitioner/plaintiff has filed this

Original Petition seeking Probate.

3. The written statement of the defendant in brief:-

The defendant submitted that after the demise of his mother, his father

during his life time, settled his 1/3

rd

undivided share in the suit schedule properties

and one another property situated in Ranipet, in favour of the defendant through a

Settlement deed dated 20.01.2014 registered as Document No.848 of 2014.

Thereafter, he filed a suit in C.S. No. 766 of 2014 against the plaintiff for partition

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of the defendant's 2/3 undivided share in the above said properties and the same is

pending.

3.1. The plaintiff remained exparte in the above suit without disclosing the

alleged Will. The Settlement deed in favour of the defendant is unchallenged.

Since the defendant's mother was depressed and mentally unsound, she was not in

a position to execute any Will. The fact about the Will has been disclosed after five

years from the demise of the defendant's mother. The Plaintiff has approached this

Court with an undue delay of five years. The defendant's mother did not have any

independent income to purchase the properties. It is the defendant's father who

purchased all the properties out of his hard earned money in the name of

defendant's mother. So, the alleged Will is not valid and the Testamentary Original

Suit should be dismissed.

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4. On the basis of the above pleadings, the following issues are framed now:-

“1. Whether the Will dated 17.06.2009 has been executed by the

testatrix in a sound disposing state of mind?

2. Whether the Will dated 17.06.2009 claimed to have been

executed by the testatrix is genuine?

3. Whether the plaintiff in T.O.S. No. 7 of 2018 is entitled to get

the Probate?"

C.S. No. 766 of 2014:-

5. The plaint filed by the plaintiff in brief:-

The 2

nd

plaintiff is the father of the 1

st

plaintiff and the defendant herein. The

2

nd

plaintiff's wife R.Selvakumari died intestate on 16.01.2012 leaving behind her

husband and two children as her legal heirs. Item No. 1 of the suit property has

been purchased under the Sale deed dated 21.08.1990 and registered as Document

No. 3213 of 1990 in the name of R.Selvakumari. Item No.2 has been purchased

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through the Sale deed dated 24.01.1990 and registered as Document No. 811 of

1990 in the name of R.Selvakumari. Item No. 3 has been purchased under the Sale

deed dated 08.05.1987 and registered as Document No. 1234 of 1987 in the name

of R.Selvakumari.

5.1. The mother of the 1

st

plaintiff R.Selvakumari did not have any

independent income and the consideration for purchase of properties has been

contributed only by the 2

nd

plaintiff. After the demise of R.Selvakumari, the 1

st

plaintiff, the defendant and their father had undivided 1/3 share in respect of each

of the suit properties. The 2

nd

plaintiff settled his undivided 1/3

rd

share in favour of

the 1

st

plaintiff vide a settlement deed dated 20.01.2014 and registered it as

Document No. 868 of 2014.

5.2. In view of the above settlement, the 1

st

plaintiff is entitled to 2/3

undivided share and the defendant is entitled to 1/3 share in respect of each of the

suit schedule properties. During the month of May 2012, at the request of the

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defendant, the 2

nd

plaintiff gave temporary custody of three title deeds in respect of

the suit properties to the defendant. The defendant refused to return the documents

and did not co-operate for partition. Hence, the plaintiffs have filed the suit

claiming 2/3 share in the suit item Nos. 1, 2 and 3.

6. The written statement of the defendants:-

It is false to state that the wife of the 2

nd

plaintiff/mother of the 1

st

plaintiff

and the defendant died intestate on 16.01.2012. The defendant's mother had

executed a registered Will dated 17.06.2009 and she had bequeathed the suit

properties equally to the son and daughter, who are the 1

st

plaintiff and the

defendant. Hence, they are entitled to equal share. The plaintiff falsely claims that

he has got 2/3 share. As per the Will of the mother, the father/2

nd

plaintiff has got

the life interest. Knowing well about the existence of the Will of the mother, the 1

st

plaintiff has forced his father to execute the Settlement deed and obtained the same

on 20.01.2014 in a fraudulent manner. The father had no manner of right to execute

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the Settlement deed in any manner and he has got no share in the suit schedule

properties. The 2

nd

plaintiff had not contributed anything towards the purchase of

the suit properties. In respect of item No.3, the mother had already executed a

Power of Attorney in the name of the defendant with the consent of the plaintiffs

and she was empowered to sell away the properties to meet out the medical

expenditure of her mother. However, the mother subsequently had sold the said

property to some third parties and this fact is very much known to the plaintiffs.

Hence, the said property is not available for partition. The 2

nd

plaintiff neither had

any share nor any right to execute the Settlement deed dated 20.01.2014 in the

name of the 1

st

plaintiff. As the defendant is also entitled to equal half share in

respect of item Nos. 1 and 2 of the suit properties under the registered Will dated

17.06.2009, the suit should be dismissed.

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7. On the basis of the above pleadings, the Court has re-framed the issues as

follows :-

“1.Whether the 1

st

plaintiff is entitled to 2/3 share in the

schedule mentioned properties?

2. Whether the settlement deed dated 20.01.2014 executed by

the 2

nd

plaintiff to the 1

st

plaintiff, is a valid one?

3. Whether the 2

nd

plaintiff has any right to settle the schedule

mentioned property to the 1

st

plaintiff?

4. Whether the first plaintiff is entitled to preliminary decree as

prayed?

5. To what relief are the parties entitled?"

8. The Testamentary Original Suit and the Civil Suit have been tried jointly

and the evidence has been set in T.O.S. No. 7 of 2018. Hence, the parties are

referred as per their rank in T.O.S. No. 7 of 2018 for the purpose of this discussion.

9. During the course of the trial, on the side of the plaintiff, two witnesses

have been examined as P.W.1 and P.W.2 and Exhibits P1 to P7 were marked. On

the side of the defendant, two witnesses have been examined as D.W.1 and D.W.2

and Exhibits D1 to D10 have been marked.

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10. The learned counsel for the plaintiff submitted that the mother of the

parties was hale and healthy at the time when she executed the Will and she had

bequeathed the subject properties in favour of both the plaintiff and the defendant

equally. There is nothing to suspect the genuineness of the will. The

Testatrix/mother of the parties is the absolute owner in respect of the properties

involved in the Will. The only condition in the Will is that the Will shall come into

force only after the life time of the father of the plaintiff. Even the Testatrix has

appointed both the plaintiff and the defendant as Executors of the Will and that

will also confirm that the will is a genuine one.

11. The learned counsel for the defendant submitted that the father of the

parties, who is the second plaintiff in the other suit in C.S. No. 766 of 2014, had

executed a settlement deed in respect of his 1/3 share in the suit properties in

favour of the defendant. He further submitted that after the demise of the plaintiff's

mother, the father of the parties is also entitled to 1/3 share in the properties

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involved in the Will and the same has been settled in favour of the defendant

through the settlement deed dated 20.01.2014 /Ex.B7. The mother of the parties is

not entitled to execute the Will for the whole of the suit properties, as she did not

have the ownership over the same. She did not have any separate income to

purchase the properties and it was the plaintiff's father who provided the complete

sale consideration for purchase of the suit properties. So the plaintiff is not entitled

to Probate and the defendant is entitled only to 2/3 share in the suit properties.

Discussion:-

12. The relationship between the parties is not in dispute. The sale deeds for

the suit properties stood in the name of the mother of the parties viz.,

R.Selvakumari and that is also not in dispute. But the defendant contends that the

Will dated 17.06.2009 is not genuine and he claims his share in the suit properties

through non-testamentary process. The defendant has stated that the father is also

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entitled to 1/3 share as he is also one of the legal heirs of the deceased mother of

the parties.

13. As regards the entitlement of the mother of the parties to execute the

Will, the evidence of the father of the parties is relevant. It has been the claim of

the defendant thatthe sale consideration has been paid by the father even if the sale

deed stood in the name of the mother. Even though the father of the parties has

been impleaded in the suit for partition, he has not been examined as a witness to

support the defendant's contention that the sale consideration for the suit property

has been given by him, though the properties have been purchased in the name of

the Testatrix, R.Selvakumari. During the life time of the father of the parties, he

had never claimed or filed any suit to declare that the suit item Nos. 1 and 2 are the

joint family properties and that mother of the parties is only a name lender for the

transaction. Hence, the father of the parties cannot be considered as the owner of

the suit properties. Even for the sake of argument, if it is accepted that the father

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had supported the mother financially to purchase the properties in her name, the

father cannot claim ownership on the properties purchased by the mother, so long

as the father did not claim that the properties have been purchased just due to his

fiduciary relationship.

14. In this regard, it is relevant to refer to the decision of the Hon’ble

Supreme Court in Jaydayal Poddar vs. Bibi Hazra, reported in (1974) 1 SCC 3,

wherein the court has categorically laid down the principles governing benami

transactions and the burden of proof required to establish that the apparent

purchaser is not the real owner. For further clarification, the relevant paragraphs

are extracted hereunder:-

6. It is well settled that the burden of proving that a particular sale

is benami and the apparent purchaser is not the real owner, always

rests on the person asserting it to be so. This burden has to be

strictly discharged by adducing legal evidence of a definite

character which would either directly prove the fact of Benami or

establish circumstances unerringly and reasonably raising an

inference of that fact. The essence of a benami is the intention of the

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party or parties concerned; and not often such intention is

shrouded in a thick veil which cannot be easily pierced through.

Such difficulties do not relieve the person asserting the transaction

to be benami of any part of the serious onus that rests on him; nor

justify the acceptance of mere conjectures or surmises, as a

substitute for proof. The reason is that a deed is a solemn document

prepared and executed after considerable deliberation and the

person expressly shown as the purchaser or transferee in the deed,

starts with the initial presumption in his favour that the apparent

state of affairs is the real state of affairs. Though the question,

whether a particular sale is Benami or not, is largely one of fact,

and for determining this question, no absolute formulae or acid

tests, uniformly applicable in all situations, can be laid down; yet in

weighing the probabilities and for gathering the relevant indicia,

the courts are usually guided by these circumstances : (1) the

source from which the purchase money came; (2) the nature and

possession of the property, after the purchase; (3) motive, if any,

for giving the transaction a benami colour; (4) the position of the

parties and the relationship, if any between the claimant and the

alleged benamidar; (5) the custody of the title-deeds after the sale

and (6) the conduct of the parties concerned in dealing with the

property after the sale.

7. The above indicia are not exhaustive and their efficacy varies

according to the facts of each case. Nevertheless No. I, viz. the

source whence the purchase money came, is by far the most

important test for determining whether the sale standing in the

name of one person, is in reality for the benefit of another.

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15. The third item of the suit property was also in the name of the mother of

the parties and that has been sold by the mother without any objection from the

defendant and the father of the parties. The above property not only stood in the

name of the mother of the parties, it was also enjoyed by her as self-acquired

property. In fact, the third item has been sold by her, by entering into sale

transactions. In fact, in the written statement filed by the plaintiff in the partition

suit, she has specifically pleaded that item No. 3 of the suit property has been sold

to some third parties through a sale deed and the defendant did not deny the same.

16. The defendant who was examined as DW1 during his cross examination

did not deny about the sale deed executed by her mother in respect of item No.3 of

the suit property. So, in the absence of any contrary proof, the written

instruments/Ex.D2 to D4 would only prove that the mother of the parties was the

absolute owner of the suit item Nos. 1 to 3. The mother of the parties who is the

owner of the suit properties is at liberty to make any testamentary settlement as per

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her wishes. The plaintiff claims that the mother had executed a Will dated

17.06.2009 during her life time and the properties have been bequeathed equally in

favour of the plaintiff and the defendant with the only condition that the Will shall

come into effect after the life time of the father of the parties.

17. On reading the above recitals, it is claimed by the plaintiff that the father

of the parties had life interest in respect of item Nos. 1 and 2 of the suit properties.

The Will is not even clear as to the life interest, but it only appears that the

absolute interest conferred upon the beneficiaries was postponed till the demise of

the father. The suit filed by the defendant as the 1st plaintiff in C.S.No. 766 of

2014 itself is only for partition and not for declaration of the item Nos. 1 and 2 of

the suit properties belonged to the father of the parties. So, the documents on

record and the conduct of the parties and the admission of DW1 will cumulatively

establish the only one inference that the mother of the parties alone was the

absolute owner of the suit properties and her entitlement to make any disposition in

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respect of the suit properties is not limited. In the absence of any right of

entitlement of ownership, the father of the parties cannot claim that he had a right

to execute a settlement in respect of his 1/3 share in respect of the suit properties.

Hence, issues 1, 2 and 3 in C.S.No. 766 of 2014 are answered against the

plaintiffs.

18. On perusal of Ex.B7/Will dated 17.06.2009, it appears that it is a

registered Will. It is not the contention of the defendant that the mother of the

parties was not in sound and disposing state of mind at the time when she had

executed the Will. The Testatrix was hale and healthy as per the evidence deposed

by PW1 and PW2 and she had executed the Will when she was in sound state of

mind. In the evidence of PW2/the attesting witness, the plaintiff had tried to prove

that the Will is genuine and valid in a manner known to law. PW2 is the son-in-law

of the Testatrix and he has stated that he had been in the registration office, read

the Will and then signed it, as one of the attestors.

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19. In fact, his evidence would show that himself and the husband of the

Testatrix were present at the Sub Registrar Office during the execution of the Will

and that the Testatrix was in a sound and disposing state of mind. He has stated

that he was called upon by the Testatrix and her husband and the Testatrix had

subscribed her signature in his presence. He has also stated that the other attesting

witness Bavani Priya has signed after his signature and that the Will contains two

properties. The cross-examination of PW2 did not demolish his evidence given in

the chief examination. As the Will is a registered one and PW2 is the son-in-law of

the Testatrix, this could be natural for him to be with the Testatrix at her call and

stand as an attesting witness. So, the plaintiff has proved the genuineness of the

Will in accordance with Section 81 of the Indian Evidence Act. The defendant did

not give any contrary proof to show that the Testatrix was not in a sound and

disposing state of mind and she did not have the decision making capacity at the

time of the execution of the Will. No coercive or undue influence has been shown

to be the reason for executing the Will. In fact, the arrangements in the Will have

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also been made as equal apportionment of the suit properties in favour of the

plaintiff and the defendant. Hence, the defendant did not establish any suspicious

circumstances surrounding the Will. So, the issue Nos. 1 to 3 in T.O.S. No. 7 of

2018 are answered in favour of the plaintiff.

20. In the result, the Civil suit in C.S. No. 766 of 2014 is dismissed and

T.O.S. No. 7 of 2018 is allowed and decreed the Probate, having effect throughout

Tamil Nadu, shall be issued in favour of the plaintiff in respect of the Will

executed on 17.06.2009 by the Testatrix R.Selvakumari in favour of the plaintiff.

No costs.

02.01.2026

Index : Yes/No

Speaking/Non Speaking order

Neutral Citation : Yes/No

Maya

To

The Assistant Registrar (O.S-II), Madras High Court, Chennai – 600 104.

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APPENDIX

I. Witnesses:

On the side of the Plaintiff

PW1 Tmt.Rekha

PW2 Mr.M.Senthil Kumar

On the side of the Defendant

DW1 Mr.S.R.Balaji

DW2 Ms.S.Meenakshi

II. Exhibits:

S. No.Exhibits Description of Documents

1. P1The certified copy of the sale deed registered as

Document No. 811 of 1990 dated 24.01.1990.

2. P2The certified copy of the sale deed registered as

Document No. 3213 of 1990 dated 17.08.1990.

3. P3the original Will dated 17.06.2009 executed by

Mrs.Selvakumari in favour of the plaintiff.

4. P4the computer generated death certificate of

K.Ramalingam dated 22.11.2016.

5. P5the computer generated death certificate of

R.Selvakumari dated 22.11.2016.

6. P6the certified copy of the legal heir certificate of

Selvakumari dated 23.02.2012.

7. P7The 1st attesting witness's signature in Ex.P3, Will is

mine.

8. D1The photocopy of the Power of Attorney dated

24.07.2009 executed by R.Selva Kumari in favour of

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S. No.Exhibits Description of Documents

Rekha Senthil Kumar

9. D2the certified copy of the sale deed dated 17.08.1990

for item No.1 of the schedule properties.

10. D3the certified copy of the sale deed dated 24.01.1990

for item No. 2 of the schedule properties.

11. D4the certified copy of the sale deed dated 06.05.1987

for item No.3 of the schedule properties.

12. D5the original legal heir certificate of

Mrs.R.Selvakumari dated 23.02.2012.

13. D6the computer generated copy of the death certificate

of Mrs.R.Selvakumari died on 16.01.2012.

14. D7the certified copy of the settlement deed executed in

favour of S.R.Balaji registered as Doc. No. 868 / 2014

dated 20.01.2014.

15. D8the original order passed by the Managing Director of

the Salem District Co-operative Milk Producers dated

11.02.1992.

16. D9the original MRI scan report of Mrs.R.Selvakumari

given by Madras Medical Mission dated 27.03.2008.

17. D10(Series) (3 Nos) are the discharge summary of

R.Selvakumari given by Madras Medical Mission.

02.01.2026

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Dr. R.N.MANJULA, J.

Maya

T.O.S. No. 7 of 2018 & C.S. No. 766 of 2014

02.01.2026

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