TOS No. 94 of 2013

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on 31.10.2025

Pronounced on 05.01.2026

CORAM

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

TOS No. 94 of 2013

1.Y.RENGANATHAN (Deceased)

Sudha Nivas, Old No.7a, New No.11, Jeeva

Rathinam Nagar, Adyar, Chennai - 600 020.

2.Shri.G.V.Bashyam

S/o.Sri.G.Ramachandran and Mrs.Padmavathy,

No.2, Kasichetty Lane,

George Town, Chennai - 600 042.

3.Sandhya Sailesh

W/o.A.N.Sailesh,

No.932 C, Poonamallee High Road,

Flowers Road, Chennnai - 600 084.

(Plaintiffs 2 and 3 brought on record as per order

of this Court dated 14.12.2022 in A.No.5395 of

2022 in TOS.94 of 2013)

..Plaintiffs

Vs

1.V.Meera

No.52, III Main Road, Vijaya Nagar, Velacherry,

Chennai - 600 042.

2.JOTHI

No.12-B, Ramalinga Nagar, K.K.Pudur,

Coimbatore – 38.

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TOS No. 94 of 2013

3.G.Sureka

Flat No.16, Jayanag's Complex, No.11, Circular

Road, Kodambakkam, Chennai - 600 024

..Defendants

PRAYER : Plaint filed under Sections 232 and 276 of Indian Succession Act,

1925, seeking Letters of Administration with the Will annexed may be granted

to the plaintiffs as the beneficiary of the said deceased having effect throughout

the State of Tamil Nadu and whole of Union of India to the properties

mentioned in the affidavit of assets.

(Amendment carried out as per orders of this Court dated 11.01.2023 in

A.No.209 of 2023 in TOS.No.94 of 2013)

For Plaintiff(s):Mr.Srikrishna Bhagawat for

Mr.P.Subba Reddy

For Defendant(s):Mr. Siddharth Bahety

JUDGMENT

This Testamentary Original Suit has been filed seeking Letters of

Administration with the Will annexed may be granted to the plaintiffs as the

beneficiary under the Will of the deceased Mrs.B.Chengalvalli Thayaramma

having effect throughout the State of Tamil Nadu and whole of Union of India

to the properties mentioned in the affidavit of assets.

2. The Original Petition filed by the petitioner has been converted into

Testamentary Original Suit in view of the caveat filed by the respondents who

have been stated as defendants in the suit. The defendants in the suit are grand

daughters of the testatrix.

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3. The short facts pleaded in the plaint are as follows:

The Will dated 01.05.1971 is the last Will and Testament of late

B.Chengalvalli Thayaramma who died on 04.09.1973. The deceased plaintiff

was the grand son-in-law of the testatrix and husband of the first respondent in

the Original Petition and he was the executor of the Will. As per the Will dated

01.05.1971, the immovable properties mentioned in the Will were being

enjoyed by the respective parties. Mrs.Padmavathy was the only daughter of the

testatrix B.Chengalvalli Thayaramma. The son of B.Chengalvalli Thayaramma

by name B.E.Sampath died on 06.04.1968 without any issues. Mrs.B.Andal

Ammal, wife of B.E.Sampath also died on 26.02.1971. So, the entire estate of

B.Chengalvalli Thayaramma fell into the hands of the daughter Padmavathy.

Mr.Ramachandran, husband of Padmavathy died in the year 1990. In the year

2006, Padmavathy also died. The respondents in the Original Petition are the

son and daughters of the deceased Padmavathy.

3.1. Though the Will has been executed on 01.05.1971, it was not

probated due to the reason that the Will has been acted upon and the benefits of

the Will has also been enjoyed by all the parties concerned. Hence, no necessity

arose. All the movable properties like jewellery, shares and bank deposits of the

testatrix mentioned in the Will are in the custody of the respondents 2, 3, 4 and

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5 in the Original Petition. The executor of the Will and his wife were not aware

of the distribution of jewellery and other movables mentioned in the Will.

Hence, the Original Petition has been filed to discharge the duties caused by the

testatrix in the Will. The immovable properties mentioned in the Will were

already been enjoyed by the beneficiaries. The sale has been effected only for

the property in Badrain Street to meet the liabilities. Several efforts have been

made to probate the Will with the consent of all the members. As the movable

properties are in the hands of the respondents 2,3,4 and 5, a Petition has been

filed for seeking probate of the Will dated 01.05.1971. Later, the prayer has

been amended for seeking Letters of Administration with the Will dated

01.05.1971 in favour of the plaintiffs.

4. The averments made in the written statement of the first and

second defendants are in brief:

The testatrix had never executed any Will whatsoever much less the

alleged fabricated Will dated 01.05.1971. She never put her thumb impression

on any document on 01.05.1971. The testatrix was 82 years old and she was not

in a good condition and also not in a sound disposing state of mind. The alleged

Will does not bear the date and place of execution and therefore, it is invalid

and void. The alleged Will does not contain the signature of the alleged

attesting witnesses. The Will has come into effect in respect of the properties

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enjoyed by the first and fourth respondents of the Original Petition and they

have the custody of the original deeds, title, documents and collecting and

enjoying rents from the properties.

5. The averments made in the written statement of the third

defendant are as follows:

After the demise of Padmavathy who was the daughter of the testatrix,

the third defendant along with her siblings had inherited and succeeded all the

properties of Late.Padmavathy as heirs and legal representatives. The third

defendant denied the existence of any Will as alleged in the plaint. On

01.05.1971, the testatrix was not in a good health and in a sound disposing state

of mind to execute the Will. The testatrix was never in the habit of putting

thumb impression and she used to sign her name, that too, in Telugu. The Suit

has been filed after a lapse of 40 years, after the demise of the testatrix. There is

absolutely no satisfactory explanation or otherwise given for the abnormal lapse

and delay. This indicates the fraudulent intention of the plaintiffs. The Will

does not bear any date and place of execution. It does not contain the signature

of the alleged attesting witness. No schedule or description of the survey

numbers, boundaries etc has been given in the Will. That would also show that

the Will has been fabricated and created as an after thought. Hence, this suit is

liable to be dismissed.

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6. On the basis of the above pleadings, the following issues are re-framed

for consideration:

“i) Whether the Will dated 01.05.1971 alleged to have

been executed by B.Chengalvalli Thayaramma is true,

genuine and valid?

ii) Whether the plaintiffs are entitled for the grant of

Letters of Administration for the Will dated 01.05.1971 or to

what relief, if any?”

7. Heard the learned counsels appearing for both sides.

8. The Will dated 01.05.1971 has been executed by the testatrix in Telugu

language and marked as Ex.P1. The deceased first plaintiff claimed that he has

been appointed as an executor of the Will. Though the Will has been executed

on 01.05.1971 and the testatrix also died in the year 1973, no petition has been

filed immediately for seeking probate of the Will. The second plaintiff is the

grandson of the testatrix through her daughter. The third plaintiff is the

biological daughter of the first defendant who was given on adoption to the

executor Y.Ranganathan and his wife Sudhamani.

9. The properties belonged to the testatrix has been bequeathed to the

plaintiffs. The defendants had denied the very execution of the Will and also the

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alleged adoption of the first plaintiff. One of the attesting witnesses who was

examined as P.W.2 has stated in his evidence that he did not attest the Will. As

per Section 68 of the Evidence Act, the Will is required to be attested and has to

be proved by examining one of the attesting witnesses. It shall not be used as

evidence until one attesting witness has been called and examined for the

purpose of proving its execution and genuineness. This is possible only when

one of the attesting witnesses is alive and he is capable of coming to the Court

for giving evidence.

10. In the instant case, the attesting witness who has been examined as

P.W.2 has not given any concrete evidence as to his role of attestation. It is

claimed by the plaintiffs in the affidavit filed along with the Original Petition

that the attesting witness has affixed his signature on the Will. In the evidence

of the attesting witness, he has not supported the plaintiffs for the reasons best

known to him. When the affidavit of the attesting witness filed in the year 2008

was shown to P.W.2, he has stated that his signature was there, but there was a

correction and that was not initialled by him and there was no date in the

affidavit and he further stated that he has signed in a blank paper and given it to

an Advocate by name Ramesh Kumar and that could have been misused to

create the subject Will. When the Will was shown to the attesting witness and a

specific question was asked to him whether he stood as the second attesting

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witness and affixed his signature, he denied and stated in his evidence that he

did not remember signing a document in any other language other than tamil.

But the subject Will has been marked as Ex.P1 is in Telugu and this has been

stated by P.W.1 in her evidence.

11. When the evidence of the attesting witness fails, the Court can

compare the signature of the testatrix with her admitted signatures. As such, no

admitted documents are available for comparison. It is further claimed that if

the attesting witness denies his signature and makes it impossible for the

plaintiffs to comply Section 68 of the Evidence Act, he can prove the Will like

proving any other document in accordance with Section 71 of the Evidence

Act.

12. In this regard, it is appropriate to refer the judgment of the Hon'ble

Supreme Court in the case of Janki Narayan Bhoir Vs. Narayan Namdeo

Kadam, reported in (2003) 2 SCC 91. In the said case, it is held that if an

attesting witness denies or does not recollect execution of the document, its

execution may be proved by other evidence. For a better clarity, the relevant

paragraph of the above judgment is extracted as under:

        “11. Section 71 of the Evidence Act is in the nature of a

safeguard to the mandatory provisions of Section 68 of the

Evidence Act, to meet a situation where it is not possible to

prove the execution of the will by calling attesting witnesses,

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though alive. This Section provides that if an attesting witness

denies or does not recollect the execution of the will, its

execution may be proved by other evidence. Aid of Section

71 can be taken only when the attesting witnesses, who have

been called, deny or fail to recollect the execution of the

document to prove it by other evidence. Section 71 has no

application to a case where one attesting witness, who alone

had been summoned, has failed to prove the execution of the

will and other attesting witnesses though are available to prove

the execution of the same, for the reasons best known, have not

been summoned before the court. It is clear from the language

of Section 71 that if an attesting witness denies or does not

recollect execution of the document, its execution may be

proved by other evidence. However, in a case where an

attesting witness examined fails to prove the due execution of

will as required under clause (c) of Section 63 of the

Succession Act, it cannot be said that the Will is proved as

per Section 68 of the Evidence Act. It cannot be said that if one

attesting witness denies or does not recollect the execution of

the document, the execution of will can be proved by other

evidence dispensing with the evidence of other attesting

witnesses though available to be examined to prove the

execution of the will. Yet, another reason as to why other

available attesting witnesses should be called when the one

attesting witness examined fails to prove due execution of the

Will is to avert the claim of drawing adverse inference

under Section 114 illustration (g) of Evidence Act. Placing the

best possible evidence, in the given circumstances, before the

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Court for consideration, is one of the cardinal principles

of Indian Evidence Act. Section 71 is permissive and an

enabling Section permitting a party to lead other evidence in

certain circumstances. But Section 68 is not merely an

enabling Section. It lays down the necessary requirements,

which the Court has to observe before holding that a document

is proved. Section 71 is meant to lend assistance and come to

the rescue of a party who had done his best, but driven to a

state of helplessness and impossibility cannot be let down

without any other means of proving due execution by "other

evidence" as well. At the same time Section 71 cannot be read

so as to absolve a party of his obligation under Section 68 read

with Section 63 of the Act and liberally allow him, at his will or

choice to make available or not a necessary witness otherwise

available and amenable to the jurisdiction of the court

concerned and confer a premium upon his omission or lapse, to

enable him to give a go bye to the mandate of law relating to

proof of execution of a will.”

13. But, on the side of the plaintiffs, the other attesting witness of the

Will has not been examined. It is not even known from the evidence of P.W.1

whether the other attesting witness is available and whether any steps have been

taken to examine the other attesting witness. The Hon'ble Supreme Court in the

case of Janki Narayan Bhoir, has made it clear that the advantage of the

plaintiffs taking recourse to the mode of proof of the Will under Section 71 of

the Evidence Act will arise only after the plaintiffs had discharged their duty to

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examine either of the attesting witnesses, in case one attesting witnesses is not

available or denies the execution. Hence, the plaintiffs cannot make use of the

enabling provision under Section 71 and claim that the execution of the Will

has been proved through the other evidence.

14. As the plaintiffs have not chosen to summon the other attesting

witness and offer any explanation as to why they are not able to examine the

other attesting witness, they cannot be permitted to make use of Section 71 of

the Evidence Act. So, the proper course open to the plaintiffs is to comply

Section 78 of the Evidence Act as it is a statutory mandate. Without complying

the statutory requirements contemplated under Section 78 of the Evidence Act

and by calling upon to examine P.W.2 alone, it cannot be concluded by the

plaintiffs that they had complied the essential mandates of Section 68 of the

Evidence Act.

15. It is submitted by the learned counsel for the plaintiffs that in the

event of the attesting witness becomes hostile, the plaintiffs have a liberty to

give additional evidence. The said position will also not arise, in view of the

failure of the plaintiffs to examine the other attesting witness. When the statute

compels and places an obligation on a person to prove certain documents in a

certain manner and made it explicit under Section 68 of the Evidence Act, the

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said obligation cannot be diluted or given away. In the instant case, P.W.1 is the

third plaintiff who is the daughter of the first plaintiff. The first plaintiff is said

to have been appointed as an executor of the Will who is the grand son-in-law

of the testatrix.

16. The defendants categorically deny the status of P.W.1. as the

daughter or the legal heir of the deceased first plaintiff and the first respondent

in the Original Petition. Even P.W.1 has stated in her evidence that she is not a

biological daughter of the first plaintiff and her biological mother is the second

grand daughter of the testatrix born through her only daughter Padmavathy. In

fact, both Sudhamani and Meera along with the other two daughters and one

son are the children of Padmavathy. Padmavathy died in the year 2006. The

other son of the testatrix by name B.E.Sampath also predeceased the testatrix

without any issues. The testatrix also died in the year 1973 as it is evidenced

from Ex.P2 death certificate. But P.W.1 who is the third plaintiff has claimed

that she is the adopted daughter of the deceased first plaintiff and the first

respondent in the Original Petition.

17. The factum of adoption is also not proved before the Court. However,

such proof of fact would not arise, as the issue involved in this suit is only to

prove the genuineness and validity of Ex.P1 Will. The first plaintiff who is said

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to be the executor of the Will, had died during the pendency of the proceedings.

Despite the executor was alive till the lifetime of Padmavathy, he did not

choose to probate the Will until this proceedings has been filed in the year

2013. The third plaintiff who has been examined as P.W.1 has stated in her

evidence that the necessity to probate the Will did not arise, because the Will

has come into effect and that the beneficiaries have been enjoying the property

in accordance with the deposition made in the Will.

18. Had it been the case, the defendants 1 to 3 who are all the grand

daughters of the deceased testatrix and the daughters of the deceased

Padmavathy would not have objected the very execution of the Will. It is the

claim of the plaintiffs that Padmavathy had admitted the execution of the Will

during her evidence given in the earlier Civil Suit. But, the said fact was also

not proved by the plaintiffs by producing the evidence and contradicting it with

D.W.1. Whatever may be the case, the mother of the defendants viz.,

Padmavathy is not one of the attesting witness of the Will and hence, the

statement of Padmavathy cannot be of any relevance to the issue involved in

this Testamentary Original Suit, unless she proved to be one of the attesting

witnesses to the Will.

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19. In the absence of the Will being proved, the property of the testatrix

would devolve upon her legal heirs in accordance with the rules of intestate

succession. Since the defendants and other two persons are the children of the

deceased testatrix, they have stated that they are entitled to the suit property

only in accordance with the intestate succession and there is no Will. From the

evidence of P.W.1 and from the recitals of Ex.P1 Will, the plaintiffs 2 and 3 are

the beneficiaries of the properties of the deceased testatrix. The executor of the

Will who is claimed to be the adopted father of the third plaintiff did not choose

to probate the Will until the life time of one and only daughter of the testatrix.

So, apart from the failure to prove the Will in accordance with Section 68 of the

Evidence Act, there are also some suspicious circumstances surrounding the

Will. In such circumstances, the burden to prove the execution and genuineness

of the Will would be more onerous and unless the said duty is properly

executed, the plaintiffs cannot be held to be entitled to get a decree as prayed

for. Thus, the issues are answered against the plaintiffs.

20. In the result, this Testamentary Original Suit is dismissed. No costs.

05-01-2026

Index: Yes/No

Speaking/Non-speaking order

Neutral Citation: Yes/No

GSK

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TOS No. 94 of 2013

DR.R.N.MANJULA, J.

GSK

To

1.V.Meera

No.52, Iii Main Road, Vijaya Nagar, Velacherry,

Chennai - 600 042

2.JOTHI

No.12-b, Ramalinga Nagar, K.K.Pudur,

Coimbatore - 38

3.G.Sureka

Flat No.16, Jayanag S Complex, No.11, Circular

Road, Kodambakkam,

Chennai - 600 024.

TOS No. 94 of 2013

05-01-2026

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