Will Of J.Emrose v. J.Suresh (Decd)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 07/11/2019 Delivered on 11/11/2019
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM P.Elumalai ... Plaintiff Vs.
1.J.Suresh 2.J.Stella 3.Dr.J.Manju ... Defendants (2nd defendant impleaded as per order of Court dated 20.02.2014 and 11.07.2014 made in A.No.693 of 2014 in T.O.S.No.75 of 2013) (3rd defendant impleaded as per order dated 05.08.2014 in A.No.4736 of 2014 in T.O.S.No.75 of 2013) Prayer: This Testamentary Original Suit is filed under Indian Succession Act XXXIX of 1925 for grant of Letters of Administration with the Will annexed. For Plaintiff : Mr.K.Mohana Murali For Defendants : No Appearance for D2 and D3 Page No.1/8
J U D G M E N T O.P.No.530 of 2012 was filed for grant of letters of administration with respect to the Will, dated 30.11.2011 was converted as T.O.S. in view of the caveat filed by the second respondent.
2. The case of the plaintiff is that the testatrix Mrs.J.Emrose was married to his elder brother P.Janaki Raman and they had two sons and two daughters. The said Janaki Raman died on 15.07.1979. The plaintiff was married to the sister of the testatrix in the year 1976. However, she left the matrimonial home on her own and they had no issues. Hence, the plaintiff continued to live with his elder brother family even after his death.
3. The plaintiff would further state that the testatrix Mrs.J.Emurose died on 31.01.2012. The children of the testatrix got married and started living separately, but the plaintiff continued to take care of the deceased till her last breath. The testatrix executed the Will at Chennai on 03.11.2011 in the presence of the witnesses in respect of the properties possessed and owned by her and the plaintiff is the beneficiary under the Will. Page No.2/8
4. Based on the pleadings, this Court had framed the following issues for trial :- "(i) Whether the alleged Will dated 30.11.2011 executed in favour of third party is genuine when the children are alive?
(ii) Whether the Will is executed in accordance with law and to what relief?"
5. The parties were invited to lead evidence. During the trial, the plaintiff was examined as P.W.1 and marked Exs.P1 to P29 viz, Exs Documents Dated P1 Original Will and Testament executed by Mrs.J.Emrose 30.11.2011 P2 Copy of plaintiff's Voter ID 21.11.2008 P3 Photocopy of sale deed relating to the property of 88/81, V.V.Koil Street, Choolai, Chennai-112.
- P4 Certified copy of Settlement Deed 19.07.1978 P5 Original Judgment in O.S.No.63 of 1987 - P6 Series (4 Nos) Original land rent receipts - P7 Series (4 Nos) are the Corporation Property Tax receipts - P8 Water charges receipts - P9 Certified copy of Sale Deed 16.09.1968 P10 Original Lease agreement entered into between Mrs.Emrose and tenant 09.08.2011 P11 Lab Report of Mrs.Emrose 12.03.2010 P12 Medical Bills series relating to Mrs.J.Emrose - P13 Medical Bills series regarding admission till discharge - Page No.3/8
Exs Documents Dated relating to Mrs.J.Emrose P14 Computer generated copy of Death Certificate of Mrs.J.Emrose 06.03.2012 P15 Death report of burial ground - P16 Burial Ground report of death certificate 02.02.2012 P17 Burial ground expenses and death expenses relating to Mrs.J.Emrose - P18 Series are the Death 16th day ceremony notices relating to Mrs.J.Emrose - P19 Office copy of legal notice sent to the defendants by the plaintiff 09.02.2012 P20 Acknowledgement card received by Manju - P21 Returned covers - P22 Legal notice to Deputy Registrar by the plaintiff 06.06.2012 P23 Legal notice to the defendants by the plaintiff 14.05.2012 P24 Returned covers - P25 Served copy of Memo in T.O.S.No.75 of 2013 filed by the second defendant before filing into the Court 09.02.2015 P26 Served copy of Judge's summon dated 17.06.
2016 and affidavit dated 20.06.2016 in T.O.S.No.75 of 2013 filed by the second defendant before filing into the Court - P27 Served copy of written statement in T.O.S.No.75 of 2013 filed by the second defendant before filing into the Court 20.06.2016 P28 Original Memorandum of Undertaking given to Mrs.Emrose 08.06.1985 P29 Sworn affidavit 25.05.
6. One of the attesting witnesses, viz., C.S.Devarjan was examined as P.W.2. In his evidence, it is stated that the testatrix Emrose was her family Page No.4/8
friend. The Testatrix affixed her left thumb impression at the foot of every page in his presence and in the presence of other attesting witness, viz., P.Srinivasan. At her request, he subscribed his signature as the first attesting witness along with Mr.P.Srinivsan, who attested the Will (Ex.P1) as the second attesting witness in the presence of the Testatrix. The testatrix was in a sound and disposing state of mind, memory and in good health at the time of execution of Ex.P1 Will.
7. Though the defendants initially contested the suit, they did not choose to cross-examine the witnesses produced by the plaintiff. The counsel for the defendants 2 and 3 also reported no instructions, by filing a Memo, dated 13.08.2019.
8. In the considered opinion of this Court, the plaintiff by examining the witnesses and producing the documents referred above has proved the execution of Will and he is entitled for decree in the suit.
9. In the result, this TOS is decreed as prayed for. Issue Letters of Administration in favour of the plaintiff. The plaintiff is directed to duly administer the properties and credits of the deceased more fully described in Page No.5/8
the Will. The plaintiff is also directed to execute a security bond for a sum of Rs.25,000/- (Rupees twenty five thousand only) in favour of the Assistant Registrar (O.S.II), High Court, Madras and to render true and correct accounts once in a year. No costs.
11/ 11 / 2019 Speaking Order / Non Speaking Order Index : Yes/ No.
Internet : Yes /No.
r n s Page No.6/8
To The Sub Assistant Registrar, Original Side, High Court, Madras.
Page No.7/8
K.KALYANASUNDARAM, J., r n s 11 / 11 / 2019 Page No.8/8