(Prayer: To grant letters of Administration with the Will annexed may be granted to him as legatee under the Will of the said deceased having effect throughout the State of Tamil Nadu.)
1. This Testamentary Original Suit arises out of O.P.No.632 of 2007 filed by the original plaintiff, late Mr.P.K.Narasimhan, seeking Letters of Administration with the Will annexed in respect of the last Will and Testament dated 02.07.1988 executed by late Mrs.S.Saroja.
2. The original petition was initially filed by arraying Mrs.U.Rajamani, the testatrix's sister, as the respondent. The said respondent filed a consent affidavit. The original petition was allowed and Letters of Administration were granted on 08.01.2008. Subsequently, the present defendant who claims to be the testatrix step daughter filed Application No.4583 of 2009 seeking revocation of the grant, contending that she was a necessary party and that the grant was obtained without notice to her. The said application was allowed on 10.08.2010 and the proceedings were converted into the present Testamentary Original Suit.
3. The original plaintiff died during the pendency of the proceedings and his legal heirs were brought on record.
4. The case of the plaintiffs is that late Mrs.S.Saroja was the wife of late Mr.A.K.Sundaravaradan and that she died on 06.07.1988 at Kilpauk Medical College Hospital, Chennai. According to the plaintiffs, during her lifetime, she executed her last Will and Testament dated 02.07.1988, bequeathing the property situated at No.1, Ethiraj Street, Pallipattu, Chennai–600113, in favour of her brother, late Mr.P.K.Narasimhan, the original plaintiff.
5. The plaintiffs state that the subject property originally belonged to late Mr.A.K.Sundaravaradan, husband of the testatrix. The plaintiffs further state that testatrix had inherited the said property from her husband, A.K. Sundaravaradan, who died intestate on 25.10.1987, leaving S. Saroja as his only legal heir. It is also pleaded that S. Saroja had no children and that her parents had predeceased her.
6. The original plaintiff, P.K. Narasimhan, claimed that he was not aware that proceedings for grant of Letters of Administration were required to be instituted within three years from the death of the testatrix and, therefore, attributed the delay in approaching the Court to such lack of knowledge, contending that the delay was neither wilful nor wanton.
7. The plaintiff further states that, at the time of the death of S. Saroja, she was survived by her brother P.K. Narasimhan and sister U. Rajamani, and that all persons interested in the estate had been disclosed in the proceedings. It was also pleaded that Rajamani had filed a consent affidavit. Accordingly, they seek Letters of Administration with the Will dated 02.07.1988 annexed, having effect throughout the State of Tamil Nadu.
8. The defendant contested the proceedings by filing a written statement. The defendant admits testatrix relationship with the deceased A.K.Sundaravaradan and claims that she is his daughter through his first wife Sarojini and she also had a brother named Rajamani who expired in the year 1977. According to the defendant, after the death of Sarojini on 21.04.1949, her father married the testatrix Mrs.S.Saroja.
9. The defendant contends that the alleged Will dated 02.07.1988 is not genuine and is surrounded by suspicious circumstances. According to her, the testatrix was suffering from serious illness and was admitted in Kilpauk Medical College Hospital. The defendant claims that the testatrix was suffering from ovarian tumour with pulmonary embolism and was unconscious throughout the treatment. She contends that when she visited the testatrix shortly before her death, the testatrix was unable to recognise her, unable to speak and was not in a position to execute any document.
10. The defendant therefore contends that the alleged execution of the Will, only four days prior to the death of the testatrix, creates a serious suspicion regarding its genuineness.
11. The defendant further contends that the plaintiffs deliberately suppressed her existence while filing the original petition. According to her, she was the daughter of the late A.K. Sundaravaradan and was entitled to succeed to the property. She alleges that the plaintiffs obtained Letters of Administration without impleading her and without issuing notice to her.
12. The defendant further contends that the petition was filed nearly twenty years after the testatrix's death and that such delay casts suspicion on the genuineness of the Will.
13. The defendant also disputes the testatrix's right to bequeath the entire property under the Will. According to her, the property belonged to her father and she had a right therein. The defendant further states that she had executed a settlement deed dated 10.06.2008 in favour of her son, K.S. Balaji, in respect of the property, claiming to be the owner. Hence defendant prays to dismiss with exemplary costs.
14. In the reply statement filed by the original plaintiff denied the allegations in the written statement and reiterated that S. Saroja executed the Will dated 02.07.1988 in a sound and disposing state of mind. He contended that the principal issue in the testamentary proceedings is the due execution and genuineness of the Will and that the defendant's claim to a share in the estate would not defeat the testamentary disposition if the Will is proved in accordance with law. He also maintained that mere delay in seeking Letters of Administration is not by itself a ground to refuse the grant.
15. The plaintiff stated that S. Saroja was the second wife of A.K. Sundaravaradhan and that the defendant was his daughter through his earlier marriage. According to him, the defendant had only limited contact with her father and the testatrix, whereas he had been supporting and taking care of Saroja and her husband for several years and had also contributed towards the construction of the superstructure over the property measuring about 640 sq.ft. at Pallipattu.
16. It is further pleaded that, while Saroja was undergoing treatment at KMC Hospital in June 1988, she expressed her intention to execute a Will and, on 02.07.1988, executed the same in Tamil in the presence of Padma Umapathy, N. Varadarajan and R. Audikesavan, bequeathing the property in favour of the plaintiff. The plaintiff specifically denied the allegation that Saroja was unconscious or incapable of understanding the transaction and asserted that she was fully conscious and aware of the nature and effect of the disposition.
17. As regards the delay, the plaintiff stated that he came to know of the necessity of obtaining Letters of Administration only in 2006, when CMDA required title documents for regularisation of the superstructure. He accordingly sought grant of Letters of Administration with the Will dated 02.07.1988 annexed.
18. The following issues were framed for consideration on 22.07.2014.
1.Whether the Will dated 2.7.1988 executed by the testatrix, Late S.Saroja is genuine and the same was executed in a sound and disposing state of mind?
2.Whether the testatrix, Late S.Saroja signed the will dated 2.7.1988 on her own free will and capacity in the presence of the witnesses, Padma Umapathy and N.Varadarajan who attested to the Will in her presence and in the presence of each other?
3.Whether the plaintiff is entitled to grant of Letters of Administration in his favour in respect of the Will dated 2.7.1988 executed by the testatrix, Late S.Saroja?
4.Whether the 0.P.632 of 2007 for grant of Letters of Administration is liable to be rejected on the ground that it is clearly barred by law of limitation?
5.Whether the alleged Will allegedly executed by Late S.Saroja is valid and sustainable on the ground that when she herself is entitled to only ½ undivided share in the suit schedule property whether she is lawfully entitled to bequeath the entire schedule property in favour of the plaintiff under the alleged Will (including that of the ½ undivided share of the defendant in the suit schedule property)?
6.Whether the 2nd defendant has any caveatable interest in challenging the proceedings relating to grant of Letters of Administration to the Plaintiff that she got maried to K.S.Santhanam prior to 1989?
7.Whether the devolution of title to the schedule property raised by the 2nd defendant can be lis in a testamentary original suit which relates only to the question of whether the Will was executed by the testatrix in sound and disposing state of mind in the presence of attesting witnesses and in accordance with law?
8.Whether the settlement deed executed by the 2nd defendant in favour of her son Mr.K.S. Balaji is a void and inchoate document?
19. On the side of the plaintiffs, the original plaintiff P.K. Narasimhan examined himself as P.W.1 and N. Varadarajan, one of the attesting witnesses to the Will, was examined as P.W.2. Through P.W.1, Exs.P1 to P13 were marked, namely, Ex.P1 unregistered Will dated 02.07.1988 executed by S. Saroja; Ex.P2-death certificate of S. Saroja; Ex.P3-consent affidavit of U. Rajamani; Ex.P4-affidavit of attesting witness N. Varadarajan; Ex.P5-affidavit of attesting witness U. Padma; Ex.P6-affidavit of assets and liabilities; Ex.P7-details of registered voters relating to the family members residing at No.1, Ethiraj Street, Pallipattu, Tharamani; Ex.P8-letter dated 12.11.2006 written by K.S. Vasantha to the plaintiff; Ex.P9-letter dated 30.09.2009 written by the plaintiff to K.S. Balaji defendant’s son; Ex.P10-certified copy of the order dated 19.10.2009 in W.P.No.18484 of 2009; Ex.P11-letter dated 17.08.2010 addressed by the plaintiff to the Medical Superintendent, KMC, seeking correction of the name of the husband of the testatrix in the death certificate; Ex.P12-property tax records relating to the suit property showing K.S. Balaji as the assessee; and Ex.P13 series (6 Nos.)-copies of the Water and Sewerage Board tax book. During the cross-examination of D.W.1, the photocopy of the settlement deed executed by K.S. Vasantha in favour of her son K.S. Balaji was marked as Ex.P14.
20. On the side of the defendant, K.S. Vasantha examined herself as D.W.1 and marked Exs.D1 to D8. Ex.D1 is the certified copy of Sale Deed No.818/1984 dated 16.03.1984 standing in the name of her father A.K. Sundaravaradhan; Ex.D2 is his death certificate dated 26.12.2006; Ex.D3 is his legal heirship certificate dated 23.10.2007; Ex.D4 is the defendant’s birth certificate; Ex.D5 is the order dated 27.01.2009 in C.M.P.No.7005 of 2008 passed by the Judicial Magistrate-II, Cheyyar; Ex.D6 is the order dated 05.02.2009 passed by the Tahsildar, Cheyyar; Ex.D7 is the death certificate of Sarojini, the defendant’s mother; and Ex.D8 is the letter dated 21.01.2011 issued by the Government Kilpauk Medical College and Hospital, Chennai.
21. The learned counsel for the plaintiffs submitted that the Will dated 02.07.1988 has been duly proved in accordance with Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. P.W.2, one of the attesting witnesses, has spoken to the execution of the Will by the testatrix in his presence and in the presence of the other attesting witnesses and has also affirmed that the testatrix was conscious and capable of executing the Will. It was therefore contended that the plaintiffs have discharged the burden resting upon the propounder. Reliance was placed on H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors., 1958 SCC Online SC 31 and Sridevi v. Jayaraja Shetty, (2005) 1 SCR 862.
22. The learned counsel further contended that the defendant's allegation that the testatrix was unconscious while undergoing treatment is not supported by reliable evidence. In cross-examination, D.W.1 stated that she had visited the testatrix only a few days prior to her death, could not remember the ward, had not enquired with the doctors, nurses or hospital staff regarding her condition and ultimately admitted that she was unable to say whether the testatrix was conscious. Though she stated that the testatrix did not open her eyes, she also stated that the testatrix gripped her hand with two fingers. Further, while her proof affidavit referred only to her visit, in cross-examination she stated that her son had accompanied her.
23. It was also submitted that the mere fact that the testatrix was suffering from cancer and was hospitalised cannot lead to an inference that she lacked testamentary capacity. What is relevant is her mental condition at the time of execution. Reliance was placed on A. Devaraj v. Vasanthi, S.A.No.251 of 2014, dated 17.10.2025, for the proposition that illness, bodily weakness or proximity to death, by themselves, do not establish incapacity to execute a Will.
24. As regards the exclusion of the defendant, it was submitted that the same does not constitute a suspicious circumstance, since the evidence of D.W.1 itself shows that the plaintiff had been taking care of the testatrix and had admitted her in hospital and met her medical expenses. Reliance was placed on Mahesh Kumar(Dead) By L.R.s v. Vinod Kumar& others, (2012) 4 SCC 387, and Meena Pradhan & Ors. v. Kamla Pradhan & Anr., (2023) 9 SCC 734, to contend that exclusion of an heir by itself is not decisive and that suspicious circumstances must be real, germane and supported by the facts of the case.
25. On the objection that the testatrix could not have bequeathed the entire suit property, the learned counsel submitted that the question as to the extent of her title is outside the limited scope of testamentary proceedings and that, in any event, the Will could operate to the extent of the interest legally held by the testatrix.
26. On limitation, it was submitted that the application cannot be rejected merely because it was instituted long after the death of the testatrix. Placing reliance on S. Krishnaswami & Anr v. E. Ramiah, CDJ 1990 MHC 556, Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani, 1983 SCC OnLine Bom 54, and Sameer Kapoor & Anr v. State, (2020) 12 SCC 480, it was argued that delay may require explanation and may have a bearing on the genuineness of the Will, but the right to seek Letters of Administration is a continuing right and does not necessarily arise on the date of death itself , no bar in the OS rules not to accept a petition beyond the three year period.
27. The learned counsel further submitted that the settlement deed has been made only with a malafide motive to deprive the plaintiff of his valid right over the Suit property and hence not a valid document. Hence the learned counsel seek to grant the letter of administration of the Will in favour of the plaintiff.
28. The learned counsel for the defendant submitted that Ex.P1-Will dated 02.07.1988 is surrounded by several suspicious circumstances which have not been satisfactorily removed by the plaintiffs. The testatrix was admittedly undergoing treatment for cancer at KMC Hospital and died on 06.07.1988, within four days of the alleged execution. According to the defendant, when she visited the testatrix shortly before her death, the testatrix was unconscious. It was therefore contended that the plaintiffs were required to establish by satisfactory evidence that the testatrix was conscious and possessed the requisite testamentary capacity on 02.07.1988; however, neither the treating doctor nor the relevant medical records were produced.
29. The learned counsel particularly relied upon the cross-examination of P.W.2, the attesting witness, to contend that due execution and attestation had not been proved. P.W.2 stated that the Will had already been written before he reached the hospital and that Saroja and two others had already signed it before his arrival. More significantly, he stated that he put his signature outside the ward and did not see Saroja putting her signature. It was therefore submitted that his evidence does not establish the requirements of due attestation and that the plaintiffs have failed to prove Ex.P1 in accordance with Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act.
30. It was further submitted that the circumstances relating to the alleged execution themselves create doubt. While Exs.P4 and P5, the affidavits of the attesting witnesses, referred to execution “at the house of the deceased”, the subsequent case of the plaintiffs is that the Will was executed at KMC Hospital. The defendant also relied upon the absence of prior disclosure of the Will to her, the fact that she was not impleaded in O.P.No.632 of 2007 despite P.W.1 admittedly knowing that she was the daughter of A.K. Sundaravaradhan, and the fact that the original grant was subsequently revoked at her instance. According to the defendant, these circumstances, read cumulatively, cast serious doubt upon the genuineness of the Will.
31. The learned counsel also contended that the exclusion of the defendant, a legal heir of A.K. Sundaravaradhan, from the testamentary disposition remained unexplained. It was further argued that Saroja could not have bequeathed the entire suit property if she had succeeded only to an undivided share therein along with the defendant. The defendant also relied upon the long delay of about 19 years in approaching the Court and contended that the explanation initially offered for such delay was insufficient.
32. In support of these submissions, reliance was placed on Sardari Lal v. Bishan Dass & Others, 2026 INSC 669, wherein the Supreme Court reiterated that proof of compliance with Section 63 of the Succession Act and Section 68 of the Evidence Act is only the first step; the propounder must further satisfy the conscience of the Court that the testator executed the Will freely, with knowledge of its contents and understanding of the nature and effect of the dispositions. Where suspicious circumstances exist, the burden rests upon the propounder to satisfactorily explain and remove them. The Supreme Court also noticed that circumstances such as doubtful testamentary capacity, an unfair disposition and unjust exclusion of legal heirs may legitimately give rise to suspicion.
33. On these grounds, the learned counsel submitted that the plaintiffs have failed to dispel the suspicious circumstances surrounding Ex. P1 and consequently prayed for dismissal of the suit.
34. Issue No.1 to 3
The plaintiffs rely upon Ex.P1, the original unregistered Will dated 02.07.1988 executed by late Mrs.S.Saroja. The original plaintiff, late Mr.P.K. Narasimhan, is the brother of the testatrix and claims under the said Will as the legatee.
35. The question for consideration is whether the plaintiff has proved the due execution and attestation of the Will marked as Ex. P10 and is entitled to letters of administration with the Will annexed.
36. The plaintiff, who claims to be a legatee under Ex. P10, examined himself as P.W.1 and one of the attesting witnesses as P.W.2. According to the plaintiff, the Will bears the signatures of three attesting witnesses, of whom two had died. P.W.2 was the only surviving attesting witness examined. His evidence therefore assumes particular importance in determining whether the statutory requirements have been established.
37. Under Section 63(c) of the Indian Succession Act, 1925, a Will must be attested by at least two witnesses. Each must either have witnessed the testatrix signing, or have received her personal acknowledgment of the signature, and must sign in her presence. The witnesses need not be present together. Consequently, an attesting witness’s failure to see the testatrix sign is not, by itself, fatal if the alternative requirements of acknowledgment and attestation in her presence are proved.
38. In this case P.W.2 admitted that, by the time he reached Kilpauk Medical College Hospital, where the testatrix was undergoing treatment as an inpatient, Ex. P10 had already been signed by the testatrix and the other two witnesses. He further stated that he signed the document when it was brought outside the hospital room. He did not witness the testatrix signing the Will or the other witnesses affixing their signatures.
39. The material deficiency is that his evidence, as placed before this Court, does not establish that the testatrix personally acknowledged her signature to him or that he signed in her presence. Nor does his evidence establish the circumstances in which the other two witnesses attested the Will. Their signatures on the document, without satisfactory proof of the acts constituting attestation, do not establish compliance with Section 63(c). The death of those witnesses does not dispense with proof of due execution and attestation by legally admissible evidence.
40. P.W.2 also admitted that he was not previously acquainted with the signature of the testatrix. No witness acquainted with her signature was examined, and no document containing her admitted signature was produced. Although such evidence is not invariably necessary when execution is otherwise duly proved, its absence in the present case leaves the deficiencies in P.W.2’s testimony unremedied. The evidence of P.W.1, considered with the remaining material, does not supply the missing proof.
41. It was also noticed that P.W.2’s signature appears first among the attesting signatures in Ex. P10, although he stated that the other witnesses had signed before his arrival. The position of a signature on the document does not necessarily establish the chronological order of signing. This feature is therefore not treated as an independent ground for rejecting the Will. The conclusion rests on the failure to prove the essential acts of execution and attestation.
42. There is, in addition, a material discrepancy concerning the place of execution. The plaintiff’s present case is that Ex. P10 was executed at Kilpauk Medical College Hospital on 02.07.1988. However, the earlier affidavits marked as Exs.P4 and P5 refer to execution at a house. During his examination, P.W.2 disputed the alteration in the affidavit and stated that it had not been made with his consent. This discrepancy concerns the very occasion of execution and cannot be dismissed as an immaterial variation. The evidence does not satisfactorily reconcile the earlier account with the case presented at trial.
43. The testatrix was admittedly undergoing inpatient treatment and died in the hospital on 06.07.1988, four days after the alleged execution. Hospitalisation and proximity of death do not, by themselves, establish lack of testamentary capacity. Nevertheless, in the circumstances of this case, the plaintiff was required to place satisfactory evidence showing that she understood the nature and effect of the disposition and executed it voluntarily. The evidence relied upon does not satisfactorily establish her physical and mental condition at the time of execution of the Will, nor does it dispel the doubts arising from the conflicting accounts of its execution. No medical officer has been examined, and no contemporaneous medical record has been produced to establish that she was of sound disposing mind and capable of understanding the nature and effect of the dispositions made under the Will.
44. The original plaintiff admitted that the defendant is the daughter of the testatrix’s husband through his first wife and that the property originally belonged to him. In the original petition did not disclose the defendant’s existence, and an order was obtained without such disclosure. This omission requires consideration in assessing the completeness and candour of the plaintiff’s account. However, the second defendant’s relationship to the original owner, or a claim to an independent share in his property, cannot by itself determine whether she has a caveatable interest in the testatrix’s estate. That question must depend upon the nature of the interest asserted in that estate. The failure to prove Ex. P10 is sufficient to decide the present claim, independently of this issue.
45. It is further contended that the testatrix held only a half share, whereas Ex. P10 purports to dispose of the entire property. The scope of these testamentary proceedings is confined to proof of the Will; competing claims to title are not adjudicated herein. Even a duly proved Will could operate only upon the interest lawfully available to the testatrix. Accordingly, the alleged excess in the disposition is not treated as an independent ground for holding the Will invalid, and no finding determining the parties’ respective shares is rendered.
46. The original plaintiff sought letters of administration approximately twenty years after the alleged execution. He explained that he was unaware of the requirement and approached the Court only when the CMDA authorities required letters of administration. No document supporting that explanation was produced. Delay alone does not establish that a Will is fabricated or dispense with examination of the evidence. In the present case, however, the explanation remains unsupported and does not resolve the deficiencies in proof or the discrepancy concerning the place of execution.
47. On an assessment of the evidence as a whole, the plaintiffs have failed to establish the due execution and attestation of Ex. P10. The conflicting accounts of execution also remain unexplained. The Court is therefore unable to accept Ex. P10 as the duly proved Will of the testatrix. Consequently, the plaintiffs are not entitled to letters of administration with the Will annexed.
48. Therefore, this Court finds that the execution and attestation of the Will have not been duly proved in accordance with Section 63 of the Indian Succession Act and Section 68 of the Evidence Act. In consequence it is answered to the issue No.1 to 3 against the plaintiffs.
Issues No.4 to 8:
49. In view of the findings recorded on the preceding issues, no separate determination of the remaining issues is necessary, except to clarify the scope of these testamentary proceedings. The principal question is whether the disputed Will is genuine, was executed by the testatrix while possessing the requisite testamentary capacity, and has been duly executed, attested and proved in accordance with law.
50. Mere delay in seeking Letters of Administration does not, by itself, disentitle the plaintiffs to relief. However, a prolonged and unexplained delay may, in the circumstances of the case, constitute a suspicious circumstance requiring explanation by the propounder. In the present case, although the original plaintiff has explained the delay, that explanation has not been substantiated by evidence.
51. The title of the testatrix to the property purportedly bequeathed, or the extent of her ownership therein, cannot be adjudicated in these testamentary proceedings. Consequently, the contention that the testatrix was entitled only to a half share in the property does not require determination here.
52. The contesting defendant is the daughter of the deceased A.K. Sundaravaradan, who died after the commencement of the Hindu Succession Act, 1956. The property in question is stated to be his self-acquired property. As his daughter, she is a Class I heir entitled to succeed to his estate under Section 8 of the Act, upon intestacy, irrespective of whether she married before 1989. She therefore has a caveatable interest in these proceedings. However, neither her claim of title to the property nor the validity of the settlement deed executed by her in favour of her son can be adjudicated in this suit. The remaining issues are answered accordingly.
53. In view of the findings recorded on the issues concerning the execution and proof of the Will, the suit is dismissed with cost.
