Case Note & Summary
The appeal arises from a judgment and decree dated 16.08.2024 passed by a learned Single Judge of the Madras High Court in T.O.S.No.21 of 2020, granting probate of the Will dated 09.02.1996 executed by G.Sarojini in favor of the respondent, Rama Mohana Rao, as executor. The appellant, G.Premkumar, is one of the sons of the testatrix and the defendant in the suit. The testatrix died on 26.07.2016, and the Will bequeathed her property at Adyar, Chennai, to her second son, G.Jawahar, and her movable properties also to him, stating that she was living with him and he was taking care of her, while the other two sons were in the USA. The appellant filed an objection, leading to the conversion of the original petition into a testamentary suit. The appellant contended that the Will was surrounded by suspicious circumstances: the testatrix was a housewife with limited education, the property was purchased from her husband's earnings, the Will was not executed in the presence of witnesses, and there was no reason to exclude him and his other brother. The learned Single Judge, after trial, granted probate, holding that the propounder had proved the due execution and attestation of the Will. The appellant appealed under Clause 15 of the Letters Patent. The Division Bench examined the evidence, including the testimony of the attesting witnesses and the certified copy of the Will. The Court noted that the original Will was not produced, but a certified copy from the Sub-Registrar's office was admitted as secondary evidence. The Court held that the propounder had laid the foundation for secondary evidence and the certified copy was admissible. The Court also found that the attesting witnesses had deposed that the Will was executed in their presence and they attested it. The Court rejected the appellant's arguments regarding suspicious circumstances, noting that the testatrix had given a valid reason for bequeathing the property to the son who was taking care of her. The Court held that the judgment of the learned Single Judge did not warrant interference and dismissed the appeal with costs.
Headnote
A) Succession Law - Probate of Will - Suspicious Circumstances - Indian Succession Act, 1925, Sections 222, 276 - The appellant challenged the grant of probate on grounds that the Will was surrounded by suspicious circumstances, including the non-production of the original Will and the alleged lack of independent witnesses. The Court held that the propounder had discharged the burden of proving due execution and attestation, and the suspicious circumstances were not sufficient to dislodge the Will. (Paras 1-25) B) Evidence Law - Secondary Evidence - Admissibility of Certified Copy - Indian Evidence Act, 1872, Sections 65, 66 - The original Will was not produced, but a certified copy from the Sub-Registrar's office was admitted as secondary evidence. The Court held that the certified copy was admissible under Section 65 of the Evidence Act, as the original was lost or not traceable, and the propounder had laid the foundation for secondary evidence. (Paras 10-15) C) Succession Law - Execution of Will - Attestation - Indian Succession Act, 1925, Section 63 - The Court examined the evidence of the attesting witnesses and found that the Will was executed in their presence and they attested it in the presence of the testatrix. The Court held that the requirements of Section 63 were satisfied, and the Will was duly executed. (Paras 16-20)
Issue of Consideration
Whether the judgment granting probate of the Will dated 09.02.1996 is sustainable in law and on facts, particularly in light of the alleged suspicious circumstances and non-production of the original Will.
Final Decision
The appeal was dismissed with costs. The judgment and decree of the learned Single Judge granting probate of the Will dated 09.02.1996 was upheld.
Law Points
- Probate
- Will
- Suspicious Circumstances
- Secondary Evidence
- Execution of Will
- Attestation
- Indian Succession Act
- 1925
- Section 63
- Section 68
- Evidence Act
- 1872
