- (1.) THIS suit has been filed for issue of a probate in respect of the Last Will and Testament dated 4.3.79 executed by P. Vadhiraja Rao, who died on 4.12.1986.
(2.) PLAINT averments are as follows: The husband of the plaintiff Dr. P. Vadhiraja Rao died on 4.12.86 at St. Isabel's hospital, Madras. He executed his last will and testament on 4.3.1979 in the presence of the witnesses. One of the attesting witnesses S. Thirunavukarasu died since then. PLAINTiff is the executor named in the Will. The testator had one son P.V. Srinivas, and one daughter Shubha, the defendant herein. During his life time, the defendant was given in marriage to Dr. B.K. Raghavendra Rao, a well settled dentist at Bangalore. At that time she was given a lot of gold jewellery, silver articles, and various other things of value. There was no occasion to probate the Will after the death of the testator, as the only two persons interested in the immovable property had no disagreements. Minor troubles have been created in the family by disputes among the family members. Hence the plaintiff wants to get a probate and discharge her duties. The testator suffered a heart ailment in 1977. In 1979, he went to U.S. and underwent treatment at enormous expenses. After his return, he did only very light work. She undertakes to duly administer the property and credits of the testator. Hence the suit. In the written statement filed by the defendant, it is alleged that the petition for grant of probate is not maintainable as the unreasonable delay in filing the petition has not been explained. The plaintiff has not come to court with clean hands. She is the daughter of late Dr. Vadiraja Rao. Dr. Vadiraja Rao expired on 4.12.1986 when he was under the active care and custody of the plaintiff and his son, after suffering prolonged serious heart ailment. The alleged will is certainly a got up document. It is alleged to have been executed seven years earlier to his death. Dr. Vadiraja Rao would never have denied the defendant her rightful claim admissible under law. She was 14 years old, when the Will was alleged to have been executed. In 1979 her marriage was not even in contemplation. The property which could be considered to be the subject matter of the alleged will can, at best, be the residential house property only and not the entire property, in dispute which was developed after his death. The names of the legal heirs/successors of Dr. Vadiraja Rao were entered in the Official/Municipal records. From 1986 onwards till date she is one of the co-sharers of the property having sole right and interest in the entire property so far as her share is concerned. The plaintiff, her son and the defendant with a view to develop the property approached the Karnataka Bank for loan. The Bank sanctioned loans jointly to all the three. From the loan availed, fresh commercial portion of the property was constructed and the said Bank has been paying the proportionate rent to all the three. She had been paid Rs. 5000/- per month as 1/3 rd share of rent, until the loan was repaid and thereafter she has been paid Rs. 6400/- per moth till date being her such 1/3 share. Besides the portion in the occupation of the Bank, other portions of the commercially developed building have been let out to M/s Helios and M/s Insight. For the further sanction of loan in 1989, she has been one of the joint applicants and on her signature, the bank sanctioned the loan. Hence it would not be the subject matter of the Will. It is true that some talks of settlement took place and the terms of settlement were almost finalised, under which the plaintiff was sought to be given life interest in the residential portion built by Dr. Vadiraja Rao and the Commercial portion was to be divided 50:50 equally to the son of Vadjraja Rao and the defendant. But the plaintiff and her son backed out of the settlement. Her father died on 4.12.1986 and O.P. was filed after 11 years i.e. in the year 1997. The loan availed from the Bank was discharged by them. After discharge of the entire loan, the defendant is receiving the 1/3rd share of rent even today at an enhanced rate. Dr. Vadiraja Rao was staying under the active care and custody of the plaintiff and her son, all through particularly in the last days of his life. The execution of the alleged Will on 4.3.1979 is denied and it was not acted upon immediately after the death of the testator and was given a go bye at the time of changing the records and for full period of 11 years thereafter. The plaintiff is not the executor of the alleged Will. The defendant was married during the life time of Dr. Vadiraj Rao in a be fitting manner. Immediately after the death of the testator, the plaintiff got the names of his successors entered in the Municipal records and the Bank insisted on the signature of all the three co-owners including the defendant. Dr. Vadiraja Rao had spent reasonable amount for the marriage of the defendant as any respectable parent would do. The performance of her marriage can never be the reason for denying her rightful share to the properties under law. The O.P. Which has been filed after 12 years of the testator's death lacks in bonafides and is bereft of truth. Hence the suit maybe dismissed with exemplary costs. On the above pleadings, the following issues were formed: (1) Whether the Will dated 4.3.79 and executed by Dr. Vadiraja Rao is true and valid" (2) Whether the Will executed by Dr. Vadiraja Rao is genuine" (3) Whether the Will was executed by the testator in a sound disposing state of mind" Issues 1 to 3: The plaintiff has filed the suit seeking for grant of probate alleging that her husband Dr. P. Vadiraja Rao executed his Last Will and Testament on 4.3.1979 at Madras. One of the attesting witnesses viz Mr. V. Mohan Rao was examined as P.W.1. He would depose that Dr. P. Vadhiraja Rao was his doctor and family friend. He knew him more than thirty five years, Ex.P1 is the Will executed by Dr. Vadhiraja Rao, which contains the signature of Vadhiraja Rao. He also attested the document. Along with him one Thirunavukkarasu also attested. Ex.P1 contains his signature and the signature of the other. The Will was executed in his residence. He saw Vadhiraja Rao signing the Will. Thirunavukkarasu also saw Vadhiraja Rao signing the Will. Dr. Vadhiraja Rao saw himself and the other attestor signing the document. The other witness Thirunavukkarasu is no more. Dr. Vadiraja Rao was in a sound and disposing state of mind at the time of Ex.P1. Dr. Vadiraja Rao continued to practise even after the execution of the Will. He knew the members of the family of the said Doctor. The members had cordial relationship with the testator.
(3.) MR. T.M. Muthukumar, son of the other attesting witness MR. Thirunavukkarusu, was examined as P.W.2. His evidence is that his father Thirunavukkarasu died in 1992. His father had signed in Ex.P1. His father had issued Ex.P2 cheque. The address and other particulars of his father under Ex.P1 are in the handwriting of his father. Dr. Vadiraja Rao was their family physician. The plaintiff examined herself as P.W.3. She would state that her husband had executed a Will. He did not tell her about the contents of the Will. He also did not discuss with her before executing the Will. Her husband who was a Doctor was practising since 1944 and he died in 1986. Till one week prior to his death, he was practising. He was in a sound and disposing state of mind. Out of his own free will he executed the Will. Her daughter got married in 1983. Her daughter's marriage was performed in a grand scale. Her son-in-law is a dentist at Bangalore. They gave lot of jewels to the daughter at the time of marriage. Even now she is in cordial terms with her daughter. Her husband went to U.S.A. in 1979 for bye pass surgery. Ex.P3 is the discharge summary given by the hospital. His 60th birthday was celebrated and he had made writing in the diary under Ex.P4. Ex.P5 is the presentation list for the 60th birthday. Ex.P6 series is the album relating to the photos. The receipt for payment of profession tax is marked as Ex.P7. The driving license of her husband is marked as Ex.P8. Ex.P9 and P10 and diaries maintained by her husband for the year 1985-1986. Ex.P12 is the day book, for the year 1985-1986, Ex.P1 contains her husband's signature. She did not take steps for probating the Will immediately because it was much expensive and since she has one daughter and one son there may not be any problem even if the Will is not probated. Now her daughter is giving some trouble and hence she was forced to probate the Will. The defendant examined herself as DW.1. Her evidence is that her father treated her and her brother equally. Even after her marriage, she stayed with her parents and completed her studies. Her relationship with her parents and brother was cordial. She was 14 years old in 1979. Her father died in December 1986. Prior to that he did not tell her that he executed any Will. He was regularly maintaining diaries. From 1974-1975, her father was having heart ailment. Her mother was always taking care of her father. Her father was always influenced by her mother. After 1985. she joined her husband. Ex.D1 is the legal heirship certificate obtained by her mother. They are joint owners of the suit property. After her father's death, they changed the Corporation Registry in favour of their names. Neither her brother nor her mother told her about the existence of the Will. In 1989, her mother took steps to develop the vast land in front portion of the property by obtaining loan from Karnataka Bank. Herself and her mother jointly mortgaged the property with Karnataka Bank. Ex.D3 is the copy of memorandum of deposit of title deeds. She also signed in Ex.D3 as one of the mortgagors. All the three of them applied under Ex.D2 for the sanctioning of a building plan for approval. After completion of the construction of the commercial complex, they decided to lease out a part of the building to Kartanaka Bank. Ex.D4 is the copy of the lease agreement. She also signed in Ex.D4. In 1989, she executed power of attorney in favour of her mother. They have also leased out to Insight Advertising and Communications Pvt. Ltd. under Ex.D6. Ex.D8 is a copy of the rental agreement for having leased out another portion to Helios Systems and Software. Her brother sent her share of rent of Rs. 5000/- under Ex.D9., letter addressed to her husband. Ex. D10 is another letter under which her brother sent a DD for Rs. 5000/-. After October 1983, he has not sent any share of rental income to her. Ex.D11 is the letter sent by her to Karnataka Bank cancelling the power of attorney executed in favour of her mother. Ex.D12 is the letter sent to her mother. Ex.D13 is a letter sent by Kamataka Bank informing that it should be done by deed of cancellation. She gave reply under Ex.D14. Ex.D15 is the reminder letter to Kartanaka Bank. Under Ex.D17, the bank has considered with regard to cancellation of the power of attorney. Ex.D18 is the letter from the Kamataka Bank, asking for renewal of the lease deed, enclosing a demand draft copy of which is Ex.D19. She asked them to provide accounts under Ex.D20. Ex.D21 is the letter written to her by the bank along with the statement of accounts Ex.D22. Ex.D23 is the letter from the Bank. Ex.D5 is the lease agreement executed by her. Ex. D24 is the letter from the bank stating that they will pay her directly her share of rent. Ex.25 is the letter from the bank. Ex.D26 is the letter from the bank towards payment of her 1/3 rd share of rent. Initially the bank was paying her Rs. 1,325/- and after the loan was repaid, her share of rent was Rs. 6378/-. Ex.D27 is the letter to the Bank. Till May 2000 they have been paying her rent. Ex.D28 is her initial reminder to the Bank. Despite the objection by her mother, the bank continued to pay her share of rent. Ex.P1 Will was not executed by her father. Her father never contemplated for the terms contained in the Will and the Ex.P1 is the concocted one. They wanted to settle the matter. She suggested for 50% of the land to be given to her for her share and rental income of 2 and 3. Her brother agreed to pay her rent only, and he did not want to give her 50% of the land. She prepared for a fair compromise. Ex.D29 series is the letter received from the Bank., informing that on the instruction of their brother and mother, they have stopped payment of rent belonging to her share from May 2000. Ex.D29 includes the xerox copies of the agreement between her mother and brother and Kamataka Bank. Ex.D30 series is the office copy of a telegram dated 19.8.2000 to the Bank. ;