A.B.Selvakumar v. N.Thenmozhi

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(TESTAMENTARY AND INTESTATE JURISDICTION) FRIDAY, THE 08TH DAY OF APRIL 2022 THE HON'BLE MR. JUSTICE P.VELMURUGAN O.P.No.742 of 2021 In the matter under section XXXIX Indian Succession Act and In the matter of Last Will and Testament of A.P.Baggia Sundari (Deceased) A.B.SELVAKUMAR (Aadhar No.8538 7246 2449) S/o.A.P.Balakumar, Flat No.1110, 11th Floor, Tulive Horizon, 16/1, Arunachalam Road, Saligramam, Chennai - 600 093.

..Petitioner/Executor -Vs1. N.THENMOZHI No.33, 3rd Street, Kannan Nagar, Chromepet, Chennai - 44.

2. RAJARAJESWARI. M No.9, Ganesh Nagar Main Road, Om Sakthi Nagar, Kallikuppam, Ambattur, Chennai - 53.

3. LAKSHMI DEVI. R Flat No 17, Sithartha Apartments, No.23, Nelvayal Road, Perumbur, Chennai - 11.

4. RANI VALARMATHI S No.5, Jani John Khan 4th Lane, Royapettah, Chennai - 14.

..Respondents Original Petition praying that this Hon'ble Court be pleased that this petitioner may be allowed to prove the WILL in common form and that Probate thereof to have effect limited to the State of Tamilnadu may be granted to him.

This Original Petition coming on this day before this court for hearing the court made the following order:

This Original Petition has been filed for grant of probate.

2. The respondents are the sisters of the petitioner and the deceased A.P.Baggia Sundari is their paternal aunt. The said A.P.Baggia Sundari had executed an unregistered Will dated 16.02.2004 bequeathing her property in favour of her unmarried sister A.P.Meenakshi Sundari with limited interest stating that she was not entitled to alienate the said property or to encumber the same in any manner during her lifetime. As per the Will, after the death of A.P.Baggia Sundari, the said A.P.Meenakshi Sundari is

entitled to execute the Will of her choice and in case, if she failed to execute a separate Will of her choice in her life time, A.B.Vijaya Sankari (unmarried) who is niece of A.P.Baggia Sundari and one of the sisters of the petitioner, would be entitled to the property. However, she shall not be entitled to alienate the said property by any means like sale, mortgage, gift, settle or create any encumbrance thereto. After the death of A.P.Meenakshi Sundari and A.B.Vijaya Sankari, the descendants of the nephew of the deceased viz., A.B.Selvakumar / the petitioner herein shall be entitled to the said property. In the absence of any descendants to A.B.Selvakumar at the age of 50, ultimately A.B.Selvakumar shall be entitled to the said property unconditionally and after the death of A.P.Baggia Sundari, A.B.Selvakumar will assist A.P.

Meenakshi Sundari and A.B.Vijayasankari in the maintenance of the house if necessary arises during their life time and take over the entire maintenance of the said property after their death. While being so, the Testator of the Will A.P.Baggia Sundari without cancelling or modifying her Will dated 16.02.2004 died on 03.03.2018 and the said A.P.Meenakshi Sundari also died intestate on 25.01.2021. The another unmarried niece A.B.Vijayasankari also died intestate on 27.08.2005.

petitioner are minors aged 13 and 10 respectively.

3. Before the learned Master, three witnesses were examined. The petitioner was examined as P.W.1. The other two witnesses who were examined as P.W.2 and P.W.3 are the attestors to the Will. The documents filed through PW1 were marked as Ex.P1 to Ex.P12 and they are as follows: Exhibits Nature of the documents P1 The original unregistered will dated 16.02.2004 executed by Ayapakkam Palani Baggia Sundari which has been attested by two attestors P2 The photocopy of the registered Sale Deed dated 02.07.1993 P3 The computer generated death certificate of A.P.Baggia Sundari P4 The computer generated death certificate of A.P.Meenakshi Sundari P5 The computer generated death certificate of A.P.Balakumar P6 The photocopy of the death certificate of A.B.Vijaya Sankari P7 The computer generated death certificate of A.

Sarojini P8 The photocopy of the Legal Heirship Certificate dated 25.09.2012 in respect of A.B.Vijaya Sankari P9 The computer generated Legal Heirship certificate of A.P.Balakumar P10 The computer generated property tax receipt dated 12.08.2019 P11 The photocopy of P.W.

Exhibits Nature of the documents estate as Rs.34,15,000/-

4. P.W.2 and P.W.3 who are the attestors to Will have deposed that they were present at the time of execution of Will by the Testator A.P.Baggia Sundari and they subscribed their signatures as witnesses to the Will. They have further deposed that the Testator A.P.Baggia Sundari was in a sound and disposing state of mind at the time of execution of the Will.

5. As seen from the Exhibits, the petitioner and the respondents are the brother and sisters and the deceased A.P.Baggia Sundari is their paternal aunt. As per the unregistered Will which has been marked as Ex.P1, the petitioner herein is the Executor and he has to manage and administer the schedule mentioned property, until his minor children attain majority. The respondents who are the sisters of the petitioner, have given no objection for the grant of Probate of the said Will dated 16.02.2004 to the petitioner. Therefore, the Will has been proved as contemplated under Section 68 of the Indian Evidence Act.

6. After perusing and examining the pleadings and the evidence on record as well as after hearing the submissions of the learned counsel for the petitioner, this Court is inclined to grant probate as prayed for.

7. Accordingly, Registry is directed to grant "Probate" in respect of the said Will in favour of the petitioner. As undertaken by the petitioner in

paragraph 9 of the petition, the petitioner shall duly administer the properties and credits of the deceased A.P.Baggia Sundari in any way concerning her Will by paying first her debts and the legacies therein bequeathed so far as the assets will extend and to make full and true inventory thereof and exhibit the same before this Court within six months from the date of issuance of Probate by the Registry of this Court and also to render before this Court a true and proper account of the said properties and credits within one year from the date of issuance of Probate by the Registry of this Court.

Sd/.P.V.J.

08.04.2022 //Certified to be a true copy// Dated at Madras this the day of 2022. SU/29.04.2022 COURT OFFICER(O.S.) From 25.09.2008 the Registry is issuing certified copies of the Orders/Judgments/Decrees in this format.