V THULASI DOSS Vs. V NANDA RAO

JUDGEMENT

(1.) THE appeal has been filed against the judgment of the learned single Judge dated 21.7.1995 in T.O.S.No.12 of 1989. THE appellant herein filed the said testamentary suit T.O.S.No.12 of 1989 for the issue of letters of administration in respect of the Will dated 26.2.1982 executed by Vasudeva Rao, the father of the appellant and the respondent. THE appellant is the younger brother of the respondent. Under the Will the father had bequeathed the property in favour of the appellant alone and the said Will was a registered one. After the death of the father, the appellant filed the said testamentary suit to obtain the letters of administration.

(2.) THE respondent herein filed a written statement stating that their father did not execute the Will and the Will produced before the Court is a fraudulent document. THE father was not of sound mind during the period in which the Will is alleged to have been executed by him. He was not only in a state of unsound mind, but also physically weak. He filed the suit O.S.No.7848 of 1988 for partition before the City Civil Court, Madras and the same is pending. THE findings given in O.S.No.4721 of 1983 filed by the father of the parties to the proceeding has no relevance to decide the dispute in this proceeding. Since the property bequeathed to the appellant was purchased from out of the joint family funds, the Will executed by their father is invalid in law and as such the testamentary suit is liable to be dismissed.

(3.) WE carefully considered the above contentions of the learned counsel for the appellant. In the suit filed by the testator O.S.No.4721 of 1983 he had specifically stated in paragraph 5 of the plaint that in February, 1984 he had executed his Will and registered the same. It is further stated that on coming to know of the execution and registration of the Will, the respondent herein started to ill-treat his father, the testator, which necessitated to terminate the licence given to the respondent with reference to the portion of the property, which is the subject matter of the testamentary suit. 7. So far as this averment in the plaint regarding the Will is concerned, the respondent in his written statement, in para.7 has stated as follows: "The alleged execution of the so called Will is not a matter for the defendant and there is no reason for the defendant to ill-treat the plaintiff on that score." Hence, even though the testator had referred to the execution of the Will and the registration of the same, the conduct of the respondent in not denying the same can be taken into consideration, even though the document as such may not be before the Court. Apart from this, in the said suit the testator claimed his exclusive title to the property which was upheld not only by the trial Court but also by the lower appellate Court as well as this Court. In such circumstances, there cannot be any dispute that the property belongs to the testator absolutely.