(Prayer: That the Petitioner may be allowed to prove the will in common form and that probate thereof, to have effect throughout the whole of the Union of India may be granted to him.)

1. This Testamentary Original Suit arises out of O.P.No.804 of 2021 filed by the plaintiff under Sections 222 and 276 of the Indian Succession Act, 1925, seeking grant of Probate of the last Will and Testament dated 28.08.2019 executed by his mother, late Mrs. K.P. Rajalakshmy. The original petition was contested by the defendant by filing a caveat and supporting affidavit. In view of the caveat, the Original Petition was converted into a Testamentary Original Suit and numbered as T.O.S.No.12 of 2024

2. The case of the plaintiff, is that the plaintiff, is the elder son of late T.N. Krishnaswamy and late K.P. Rajalakshmy. The defendant, is his younger brother and the other son of the deceased. The plaintiff's mother, K.P. Rajalakshmy, wife of late T.N. Krishnaswamy, died on 04.01.2020 at Bangalore, where she was ordinarily residing. Her husband, T.N. Krishnaswamy, had predeceased her. According to the plaintiff, the deceased left behind only the plaintiff and the defendant as her surviving next-of-kin and there are no other legal heirs.

3. It is further averred that K.P. Rajalakshmy executed her last Will and Testament dated 28.08.2019 at Bangalore, in the presence of the witnesses. Under the said Will, the plaintiff was appointed as the sole executor and he is also beneficiary under the Will. On that basis, the plaintiff has approached this Court seeking grant in respect of the said Will and the estate of the deceased. The deceased had also left property within Chennai and, therefore, according to the plaintiff, this Court has testamentary jurisdiction over the estate.

4. The plaintiff has stated that the deceased owned a residential flat at Ashok Nagar, Chennai, acquired under Sale Deed dated 18.01.1989, apart from fixed deposits and a savings bank account with Tamil Nadu Mercantile Bank, the total estate being valued at Rs.70,93,053/-. The plaintiff has undertaken to administer the estate, file the inventory within six months and render accounts within one year, and has stated that no other probate or administration proceedings have been initiated in respect of the deceased’s estate.

5. On these averments, the plaintiff seeks grant of probate in respect of the Will dated 28.08.2019 executed by late K.P. Rajalakshmy.

6. The defendant, admits that his mother, K.P. Rajalakshmy, died on 04.01.2020 and that his father, T.N. Krishnaswamy, had predeceased her. However, he disputes the genuineness and validity of the Will dated 28.08.2019 propounded by the plaintiff. According to the defendant, the deceased had earlier executed a Will dated 14.07.2016, along with a medical certificate, and his father had also signed the said Will as a consent witness. Under that Will, the deceased had recorded that the defendant had been taking care of both parents in their old age and had bequeathed the MIG Flat at Anugraha Colony, Ashok Nagar, Chennai, and the remaining assets in favour of the defendant. She had also recorded that sufficient financial assistance, jewellery and other benefits had already been given to the plaintiff and his family.

7. The defendant further states that the deceased had executed a registered Settlement Deed dated 20.07.2016, bearing Document No.1893 of 2016 on the file of the Sub-Registrar, Ashok Nagar, settling in his favour the property at MIG Flat No.M-1C, First Floor, Block No.M-1, Anugraha Colony, 3rd Avenue, Ashok Nagar, Chennai – 600 083, together with the 1/3rd undivided share of land. According to him, possession was also handed over to him under the settlement and he has been in continuous possession thereof. He thereafter entered into a Memorandum of Understanding dated 25.09.2020 with M/s. Ramaniyam Real Estates Pvt. Ltd. for demolition and reconstruction of the building along with the other co-owners.

8. As regards the Will dated 28.08.2019, the defendant contends that, at the relevant time, the deceased was bedridden and was not in a clear and sound state of mind. He alleges that the said Will was obtained by the plaintiff by force, influence and coercion. He specifically relies upon the earlier Will and Settlement Deed to contend that the deceased had already dealt with the Chennai property in his favour and, therefore, the subsequent disposition relied upon by the plaintiff is doubtful.

9. The defendant also disputes the plaintiff's claim over the fixed deposits mentioned in the suit and contends that those deposits belonged to their late father, T.N. Krishnaswamy. He states that he had already instituted P.S.&C.No.6 of 2019 on 26.09.2019 before the Senior Civil Judge, Kalaburagi, seeking a succession certificate in respect of fixed deposits valued at about Rs.36,30,000/-, impleading the deceased, the present plaintiff and the concerned Bank. The said proceeding was subsequently converted into O.S.No.450 of 2023 and is stated to be pending. According to the defendant, the present suit is a counterblast to those proceedings. He therefore seeks dismissal of the suit with costs.

10. This issues for consideration framed on 15.10.2024:

                     1.Whether the Will dated 28.08.2019 is true and genuine?

                     2.To what relief?

11. Before the Learned Master, on the plaintiff side, the plaintiff, examined himself as P.W.1 and marked Ex.P1 to Ex. P10 and Dr. K. Nagaraja, one of the attesting witnesses to the Will, was examined as P.W.2. The plaintiff marked Ex. P1, certified copy of the Sale Deed dated 18.01.1989 executed in favour of K.P. Rajalakshmy; Ex. P2, Death Certificate of T.N. Krishnaswamy; Ex. P3, Discharge Summary of K.P. Rajalakshmy dated 29.08.2019; Ex. P4, Death Certificate of K.P. Rajalakshmy dated 04.01.2020; Ex. P5, Legal Heir Certificate; Exs.P6 to P9, Fixed Deposit Receipts; and Ex. P10, the original Will dated 28.08.2019 executed by K.P. Rajalakshmy.

12. On the side of the defendant, the defendant, examined himself as D.W.1 marked Ex. D1 to Ex.D5 . Ex.D1, certified copy of the Settlement Deed dated 20.07.2016; Ex.D2, attested copy of the Will dated 14.07.2016 along with medical certificate; Ex.D3, copy of the Death Summary of K.P. Rajalakshmy; Ex.D4, certified copy of the petition in P.S.&C.No.6 of 2019 before the Senior Civil Judge, Kalaburagi; and Ex.D5, certified copy of the judgment and decree in O.S.No.450 of 2023, Kalaburagi dated 28.2.2025.

13. Learned counsel for the plaintiff submitted that Ex.P10, the Will dated 28.08.2019, was duly executed by late K.P. Rajalakshmy while she was conscious and in a sound disposing state of mind. According to the plaintiff, while the testatrix was undergoing treatment at Sushrutha Medical Aid and Research Hospital, Bengaluru, she expressed her desire to execute a Will and requested Dr. K. Nagaraja, her family physician, to attest the same and arrange another reliable witness. Accordingly, Dr. K. Nagaraja and his assistant, R. Yesuva, attested the Will. After the death of the testatrix on 04.01.2020, the Will was handed over to the plaintiff by Dr. K. Nagaraja.

14. Learned counsel placed particular reliance upon the evidence of P.W.2, Dr. K. Nagaraja, who categorically stated that the testatrix was very conscious and in a sound state of mind at the time of execution of Ex.P10. It was contended that this part of his evidence remained unshaken in cross- examination. Reliance was also placed upon Ex.P3, the discharge summary, which records that the testatrix was conscious and cooperative and responding to pain on touch. P.W.2 also identified the signature of the testatrix in Ex.P10 and spoke about the presence of both attesting witnesses at the time of its execution. On this basis, it was contended that the plaintiff has established the due execution of the Will as well as the testamentary capacity of the deceased.

15. With regard to the movable properties, learned counsel submitted that the fixed deposits covered by Exs.P6 to P9, aggregating to Rs.28,50,000/-, had been kept for meeting the old-age expenses of the testatrix. It was contended that the defendant had failed to take care of the testatrix and her husband and had prevented them from utilising the deposits, whereas the plaintiff had taken care of the testatrix during her final days. Though the fixed deposits were subsequently directed to be shared equally between the plaintiff and the defendant under the judgment in O.S.No.450 of 2023, Ex.D5, the plaintiff submitted that he retains the liberty to challenge the said judgment.

16. As regards the immovable property and the earlier Settlement Deed relied upon by the defendant, learned counsel submitted that the plaintiff was unaware of the Settlement Deed until it was produced in the present proceedings and that the property is presently in the possession of the defendant. It was contended that any dispute regarding title to the property is outside the scope of the present probate proceedings and can be agitated independently. Reliance was placed on Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon & Ors., [(2007) 11 SCC 357] and Pasupati Nath Das (Dead) v. Chanchal Kumar Das (dead) by Legal representatives & Ors., [(2018) 18 SCC 547], for the proposition that a Probate Court is primarily concerned with the genuineness and due execution of the Will, the testamentary capacity of the testator and absence of coercion or undue influence, and cannot adjudicate questions of title. It was therefore submitted that, the execution of Ex.P10 having been satisfactorily proved through P.W.2 and Ex.P3, probate ought to be granted.

17. Learned counsel for the defendant submitted that, even prior to the Will dated 28.08.2019, the deceased had executed a registered Settlement Deed dated 20.07.2016 in respect of the sole immovable property mentioned in the Will, in favour of the defendant. The certified copy of the Settlement Deed has been marked as Ex.D1. It was pointed out that P.W.1 confirmed the signature of his mother in the said Settlement Deed and also confirmed that the Settlement Deed dated 20.07.2016 is referred to in Ex.P10 Will.

18. Learned counsel further submitted that the purported Will dated 28.08.2019 is not accompanied by any medical certificate certifying the physical and mental fitness of the testatrix, though she was approximately 84 years of age at the time of its alleged execution, and that the absence of such medical evidence casts serious doubt upon her testamentary capacity. It was also submitted that the Will does not contain complete particulars of the assets purportedly bequeathed, such as the Fixed Deposit Receipt numbers, amounts deposited, bank account numbers, branch details and other particulars necessary for identification of the assets. The defendant also specifically disputed the genuineness of the signature of the testatrix in Ex.P10 and contended that a comparison of the said signature with her admitted signature in the Settlement Deed dated 20.07.2016 reveals material variations and dissimilarities, thereby raising serious suspicion regarding the authenticity and due execution of the Will.

19. Learned counsel submitted that the defendant had, on 26.09.2019, instituted P.S.&C.No.6 of 2019 under Section 372 of the Indian Succession Act before the Senior Civil Judge, Kalaburagi, seeking a succession certificate in respect of the fixed deposits of his deceased father, T.N. Krishnaswamy, valued at Rs.36,30,000/-, impleading K.P. Rajalakshmy, the present plaintiff and the Branch Manager, Tamil Nadu Mercantile Bank, Gulbarga Branch, as defendants. It was contended that the plaintiff had suppressed the institution and pendency of the said proceeding in the present petition. Ex.D4 is the certified copy of the petition in P.S.&C.No.6 of 2019. The said proceeding was subsequently converted into O.S.No.450 of 2023 before the Principal Senior Civil Judge and CJM, Kalaburagi.

20. It was further submitted that the plaintiff himself filed an application under Order XII Rule 6 read with Section 151 CPC in O.S.No.450 of 2023 seeking judgment on admissions and praying for a declaration that the plaintiff and defendant were the legal successors entitled to the fixed deposits in equal shares together with accrued interest. Based upon the said application and the written statement, the III Additional Senior Civil Judge, Kalaburagi, by judgment and decree dated 28.02.2025, declared the plaintiff and the defendant entitled to equal shares in the fixed deposits of late T.N. Krishnaswamy amounting to Rs.36,30,000/-, with liberty to withdraw the amount from the Bank. The said judgment and decree is marked as Ex.D5.

21. Learned counsel further submitted that the four fixed deposits marked as Exs.P6 to P9, namely deposits of Rs.12,25,000/-, Rs.12,25,000/-, Rs.2,00,000/- and Rs.2,00,000/-, are specifically covered by the decree in O.S.No.450 of 2023 and have already been divided equally between the plaintiff and the defendant. The remaining fixed deposits referred to in that decree were stated to have been encashed by K.P. Rajalakshmy for her treatment. It was therefore submitted that, since the immovable property had already been settled in favour of the defendant prior to the Will dated 28.08.2019 and the fixed deposits had already been divided equally between the parties pursuant to the judgment and decree dated 28.02.2025 in O.S.No.450 of 2023, nothing survives in the present suit and the same is liable to be dismissed.

Issue No.1:

22. The burden lies upon the plaintiff, as the propounder of the Will, to establish its due execution and attestation, the testamentary capacity of the testatrix and that the Will represented her free and voluntary intention. Where suspicious circumstances are alleged, the Court must also be satisfied that such circumstances have been satisfactorily explained.

23. In the present case, the original Will dated 28.08.2019 executed by late K.P. Rajalakshmy has been marked as Ex.P10. The plaintiff examined himself as P.W.1 and examined Dr. K. Nagaraja, one of the attesting witnesses to Ex.P10, as P.W.2. P.W.1 admittedly was not present at the time of execution of Ex.P10 and, therefore, the actual execution and attestation of the Will have to be considered principally on the evidence of P.W.2.

24. P.W.2 is a medical practitioner and had been the family physician of the plaintiff for about 18 to 20 years. He stated that he had known the deceased from July 2019 and had treated her while she was staying at Bangalore. According to P.W.2, the deceased was admitted in Bangalore Hospital on 27.08.2019 and, when he visited her on 28.08.2019, she was very conscious and responding well. In answer to Question Nos.13 and 14 in his chief-examination, he specifically stated that she was very conscious and was responding well. He further stated that during his visit she expressed her intention to make a Will and sought his assistance for its preparation.

25. P.W.2 has given a specific account of the preparation of Ex.P10. According to him, at the request of the testatrix he arranged his assistant, R. Yesuva, to be the second attesting witness and also arranged a typist. The testatrix dictated the contents of the Will; after it was typed, she read it, directed certain corrections to be made, again went through the corrected version and, after being satisfied with its contents, signed the Will. In answer to Question No.22, P.W.2 stated that the testatrix was in a sound state of mind at the time of execution and added that she was “absolutely alright”. In answer to Question No.23, he further stated that she understood the contents of the Will.

26. As regards attestation, P.W.2 stated that both he and R. Yesuva saw K.P. Rajalakshmy signing Ex.P10. Thereafter, P.W.2 signed as the first attesting witness in the presence of the testatrix and R. Yesuva, and R. Yesuva thereafter signed as the second attesting witness in the presence of the testatrix and P.W.2. P.W.2 identified his own signature as well as the signature of the testatrix in Ex.P10. Thus, his evidence directly speaks to the execution as well as attestation of the Will.

27. There is also a satisfactory explanation as to the custody of the original Will and the manner in which it came into the hands of the plaintiff. P.W.2 stated that, after Ex.P10 was signed and attested, the testatrix herself placed the Will in a cover, sealed it and entrusted the sealed cover to him with instructions to hand it over to her elder son, the plaintiff, after her demise. K.P. Rajalakshmy died on 04.01.2020 and P.W.2 thereafter handed over the sealed cover to the plaintiff on 06.01.2020. According to P.W.2, the plaintiff opened the sealed cover in his presence. The evidence of P.W.1 and P.W.2 is thus consistent as to how the original Ex.P10 remained in the custody of P.W.2 and subsequently came into the possession of the plaintiff after the death of the testatrix.

28. Though P.W.2 admitted in cross-examination that he had not produced the prescriptions issued by him or any separate document concerning the treatment given by him, nothing was elicited in cross-examination which materially discredits his account of the execution and attestation of Ex.P10. He reiterated even in cross-examination that it was the testatrix herself who insisted upon preparing the Will and that she was conscious at the time of its execution.

29. The principal contention of the defendant is that the testatrix was aged about 82 to 84 years, was suffering from various ailments and was not in a proper physical and mental condition to execute Ex.P10. It was also contended that no medical fitness certificate accompanied the Will.

30. It is not in dispute that the testatrix was elderly and was undergoing medical treatment. However, what is material is whether she possessed the capacity to understand the nature and effect of the testamentary disposition at the time of execution. Ex.P3 is the discharge summary relating to her hospitalisation from 27.08.2019 to 29.08.2019. P.W.2, who visited her on the very date of execution, has categorically spoken about her consciousness and responsiveness and has stated that she was in a sound state of mind.

31. More importantly, the evidence of D.W.1 himself substantially weakens the plea of want of testamentary capacity. In cross-examination, D.W.1 admitted that when he saw his mother on 28.08.2019, she was “very much fit mentally and physically.” He further admitted that, after 28.08.2019, he was not aware of her mental and physical condition. Thus, his own evidence does not support his plea that the testatrix was incapable of executing a Will on 28.08.2019.

32. The mere absence of a separate medical fitness certificate cannot, in the facts of the present case, outweigh the direct evidence of P.W.2 regarding the condition of the testatrix, particularly when D.W.1 himself admitted her mental and physical fitness on the relevant date. This Court therefore finds no sufficient material to hold that the testatrix lacked testamentary capacity.

33. The defendant has further alleged that Ex.P10 was brought about by force, influence or coercion exercised by the plaintiff. However, the said allegation is unsupported by positive evidence.

34. P.W.1 admittedly was not present when Ex.P10 was executed. P.W.2 stated that, at the time of execution, only the testatrix, P.W.2, R. Yesuva and the typist were present in the hospital room. Significantly, when D.W.1 was specifically questioned whether he had seen his mother under coercion or threat, he answered that he did not know. On the other hand, P.W.2 has stated that it was the testatrix herself who expressed her desire to execute the Will, dictated its contents, read and corrected the document and thereafter executed it. In the absence of any contrary evidence, the allegation of coercion or undue influence has not been established.

35. The defendant relies upon Ex.D2, an attested copy of an earlier Will dated 14.07.2016 together with a photocopy of a medical certificate. D.W.1 stated in cross-examination that the original of Ex.D2 was available with him in a locker. The document produced and marked before this Court, however, is only an attested copy.

36. For the purpose of the present proceedings, it is unnecessary to decide upon the due execution or legal effect of Ex.D2. The issue before this Court is whether the subsequent Will, Ex.P10 dated 28.08.2019, has been duly proved. The existence of Ex.D2 by itself does not displace the direct evidence adduced regarding the execution and attestation of Ex.P10.

37. The defendant places substantial reliance upon Ex.D1, the registered Settlement Deed dated 20.07.2016, under which the deceased had settled the Ashok Nagar property in favour of the defendant. Ex.D1 contains recitals settling the property in favour of the defendant, while reserving life interest, and also contains recitals relating to possession and enjoyment of the property.

38. P.W.1 has admitted the signature of his mother in Ex.D1 and has also admitted that the said Settlement Deed is referred to in Ex.P10. The defendant therefore contends that the testatrix, having already dealt with the property under Ex.D1, could not subsequently bequeath the same under Ex.P10. However, the scope of the present testamentary proceedings is confined to the genuineness and due execution of the Will. Questions as to the legal effect of Ex. D1, the title which passed thereunder and whether any subsisting interest remained with the testatrix to be dealt with under Ex. P10, or the question as to whether Ex. D1 is a settlement deed transferring rights in the property in praesenti, or a Will postponing the vesting of title until her death are the questions concerning title and cannot be finally adjudicated in the present probate proceedings. The authorities relied upon by the plaintiff, namely Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon & Ors., [(2007) 11 SCC 357] and Pasupati Nath Das (Dead) v. Chanchal Kumar Das (dead) by Legal representatives & Ors., [(2018) 18 SCC 547], also reiterate the limited scope of probate jurisdiction in matters of title.

39. Therefore, this Court leaves open all questions regarding the legal effect of Ex. D1 and the respective rights of the parties in the Ashok Nagar property. The existence of Ex.D1, by itself, does not render the subsequent Ex.P10 unproved.

40. The defendant has also relied upon Ex.D4, relating to P.S.&C.No.6 of 2019, and Ex.D5, the judgment and decree dated 28.02.2025 in O.S.No.450 of 2023 passed by the Civil Court at Kalaburagi. Those proceedings concern the fixed deposits and the entitlement of the parties thereto.

41. D.W.1 admitted in cross-examination that Exs.P6 to P9 are fixed deposit receipts standing in the names of K.P. Rajalakshmy and T.N. Krishnaswamy and that T.K. Suresh Kumar, the plaintiff herein, is shown as nominee therein. He also admitted that his earlier statement that the deposits stood only in his father's name was made because he was not aware of the actual position.

42. Ex.D5 has already dealt with the rights of the plaintiff and defendant in relation to the fixed deposits covered by that proceeding. The rights flowing from Ex.D5 therefore cannot be disturbed in these probate proceedings. At the same time, Ex.D5 does not determine whether Ex.P10 was genuinely and duly executed by K.P. Rajalakshmy. Consequently, the rights of the parties flowing from Ex.D5 are left unaffected by the present judgment.

43. The defendant has also pointed out that Ex.P10 does not specify the individual fixed deposit numbers, amounts and other particulars. P.W.1 has admitted that such individual particulars are not specifically set out in Ex.P10. The absence of detailed particulars may have relevance when the precise assets falling under the testamentary disposition are sought to be identified, but it cannot, by itself, disprove the execution and attestation of Ex.P10.

44. The defendant has disputed the signature of K.P. Rajalakshmy appearing in Ex.P10 and contends that it differs from her admitted signature in Ex.D1. However, no expert or other affirmative evidence has been adduced to establish that the signature appearing in Ex.P10 is not genuine.

45. On the other hand, P.W.2, who claims to have personally witnessed the execution, has identified the signature of the testatrix in Ex.P10 and has categorically stated that both he and R. Yesuva saw her signing the Will. In the absence of evidence sufficient to discredit such direct testimony, a mere assertion of variation in the signatures cannot displace the evidence of the attesting witness.

46. Thus, the circumstances relied upon by the defendant, namely the advanced age and ailments of the testatrix, absence of a separate medical certificate, the earlier Will, the registered Settlement Deed, absence of detailed particulars of the fixed deposits and the alleged variation in the signature have been considered both individually and cumulatively.

47. P.W.2 has given a consistent account that the testatrix herself initiated the preparation of the Will, dictated its contents, read and corrected it and thereafter signed it in the presence of both attesting witnesses. The subsequent custody of the original Will has also been satisfactorily explained. The contemporaneous medical material and the oral evidence support the case that she was conscious and responsive. More significantly, D.W.1 himself admits that the testatrix was mentally and physically fit on 28.08.2019, while his allegation of coercion is admittedly not based upon any act witnessed by him.

48. Upon an overall consideration of the pleadings and the oral and documentary evidence, this Court is satisfied that Ex.P10 Will dated 28.08.2019 was duly executed and attested, that K.P. Rajalakshmy possessed the requisite testamentary capacity at the time of execution and that the allegations of coercion, undue influence and fabrication have not been established. The suspicious circumstances projected by the defendant have been satisfactorily explained.

49. Accordingly, Issue No.1 is answered in favour of the plaintiff.

Issue No.2:

50. In view of the finding on Issue No.1, the plaintiff, being the executor named under Ex.P10, is entitled to the grant sought in respect of the Will dated 28.08.2019.

51. However, it is made clear that the grant is confined to establishing the genuineness and due execution of Ex.P10 and the legal character of the executor. It shall not be construed as an adjudication upon the title or ownership of the immovable property covered by Ex.D1, nor shall it affect or override the rights of the parties flowing from the judgment and decree in O.S.No.450 of 2023 under Ex.D5. All questions relating to the title to the immovable property and the substantive entitlement to the movable assets are left open to be worked out in appropriate proceedings.

52. Accordingly, Issue No.2 is answered in favour of the plaintiff, subject to the above clarification. Thus, the suit is decreed as prayed for with cost. The Will dated 28.08.2019 executed by late K.P. Rajalakshmy is probated in favour of the plaintiff, T.K. Suresh Kumar, as the executor named in the Will. The plaintiff shall administer the estate of the deceased and file the inventory and accounts within six months from the date of receipt of a copy of this order as required by law.