TOS/4/2006 of V. SETHURAMAN(DECEASED) Vs THALLAM RAJAGOPAL on 30 September 2026

ORDER

The Testamentary Original Suit has been instituted by the plaintiffs seeking grant of Letters of Administration with the Will dated 27.12.2004 executed by late Shri T.Pullana Gupta annexed thereto.

2. According to the plaintiffs, late Shri T.Pullana Gupta executed his last Will and Testament dated 27.12.2004, which has been marked as Ex.P.2. The Testator died on 25.02.2005. The Will originally named Shri V.Sethuraman as the sole Executor. During the pendency of the original proceedings, the said Executor sought appointment of an Advocate Commissioner for recording his evidence on account of his health condition. Though the application was initially dismissed by this Court, the Original Side Appeals preferred by the Executor in O.S.A.Nos.380 & 381 of 2011 were allowed by the Hon’ble Division Bench by a common judgment dated 25.01.2012 and an Advocate Commissioner was appointed for recording his evidence. Before his evidence could be recorded, the Executor Shri V.Sethuraman passed away. The plaintiffs therefore, seek grant of Letters of Administration with the Will annexed to.

3. The plaintiffs examined P.W.1 and marked Ex.P.1 to P.5. The two persons stated to be the attesting witnesses namely Shri Suresh Babu and Shri Ashok Gandhi were examined as P.W.2 and P.W.3.

4. Mr.M.Balasubramanian, the learned counsel for the plaintiffs would contend that both the attesting witnesses have spoken about the execution and attestation of Ex.P.2 and that the Will has therefore been duly proved. He would further submit that several beneficiaries had initially filed consent affidavits and that amounts standing to the credit of the estate were distributed by the executor in accordance with the directions of the Testator.

5. The suit is resisted by defendants 1 & 4 to 12. The defendants dispute the genuineness, execution and validity of Ex.P.2 Will. Therefore, the principal defence is that Ex.P.2 is a fabricated and unnatural document and has not been proved in accordance with law.

6. Dr.C.Ravichandran learned counsel appearing for the defendants 1 & 4 to 12, Mr.S.N.Narasimhalu, learned counsel appearing for the defendants 2,13,14, 15 to D17 and Mr.S.Purushothamadoss learned counsel appearing for the 3rd defendant would submit that the 1st defendant is the brother and surviving Class II legal heir of late Pullana Gupta. The defendants contend that they are the nearest relatives of the Testator and would be entitled to succeed to the estate in the event of intestacy. The learned counsel for the defendants further contends that the Testator was aged about 87 years at the time of the alleged execution of Ex.P.2 and his signatures appearing on the different pages of the document are shaky and materially different from his admitted signature in Ex.D.2. His further submission is that the Testator was not in a sound disposing state of mind. According to him, after the death of Testator’s wife, he was depressed, physically unwell and was undergoing treatment. He also relied upon the circumstances surrounding the date of execution of Ex.P.2, namely 27.12.2004, being immediately after the Tsunami which occurred on 26.12.2004. He further contends that the Testator had earlier executed three registered Wills, including Wills dated 1971, 18.06.1988 and 27.12.2003 and that Ex.P.2 does not give any reason for superseding or revoking the earlier testamentary dispositions. He would further contend that the alleged Will contains disproportionate and vague bequests and does not contain complete particulars regarding bank deposits, bank accounts, jewels, silver articles and other movables. He would also contends that the non examination of the scribe, doctors who treated the Testator, T.Nagaraj and other persons who were allegedly close to the Testator constitutes a serious infirmity and that the evidence of P.W.2 and P.W.3 is seriously challenged and contended that the statutory requirements regarding attestation have not been established. To support his contention, he has relied upon the judgments in (2009) 1 SCC 354 and 2025 (6) CTC 32

7. The following points arise for consideration:

1. Whether Ex.P.2 Will dated 27.12.2004 was executed by late Shri T.Pullana Gupta in a sound disposing state of mind and of his own free Will?

2. Whether Ex.P.2 has been duly attested and proved in accordance with

Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act ?

3. Whether the circumstances relied upon by the defendants constitute suspicious circumstances surrounding Ex.P.2 Will?

4. Whether the plaintiffs have satisfactorily removed the legitimate suspicious circumstances surrounding the execution of the Will?

5. Whether the plaintiffs are entitled to Letters of Administration with the Will annexed ? Point Nos.1 to 5

8. It is well settled that a propounder of a Will must establish the due execution and attestation of the Will. Section 63 (c ) of the Indian Succession Act requires that the Will shall be attested by two or more witnesses each of whom must have seen the Testator sign or affix his mark to the Will or must have received from the Testator a personal acknowledgment of his signature are marked. Each of the witnesses must sign the Will in the presence of the Testator. Section 68 of the Indian Evidence Act requires examination of at least one attesting witness, where the document is required by law to be attested. The propounder is also required to establish that the Testator had a sound disposing state of mind and understood the nature and effect of the testamentary disposition. Where suspicious circumstances are brought before the Court, the burden resting upon the propounder becomes correspondingly heavier. The propounder must remove legitimate suspicions and satisfy the conscience of the Court that the document represents the free and conscious testamentary act of the deceased. At the same time, the law does not require the propounder to answer imaginary or conjectural suspicions. The suspicion must be genuine and arise from the circumstances attending the execution of the Will.

9. The defendants have placed considerable emphasis upon the fact that Ex.P.2 is an unregistered Will. There can be no doubt that registration of a Will is not compulsory. An unregistered Will is not invalid merely because it has not been registered. Therefore, the mere fact that Ex.P.2 is unregistered cannot, by itself, constitute a suspicious circumstance sufficient to reject the Will. However, the fact that the document is unregistered has to be considered along with all other circumstances relied upon by the defendants. The Court cannot either reject Ex.P.2 merely because it is unregistered or accept merely because registration is unnecessary. The ultimate question remains whether due execution and attestation have been established.

10. One of the important circumstances relied upon by the defendants is

that the Testator himself recited in Ex.P.2 that he had earlier executed three Wills, including registered Wills dated 1971, 18.06.1998 and 27.12.2003. Ex.P.2 is stated to have been executed on 27.12.2004, approximately one year after the Will dated 27.12.2003. The defendants contends that Ex.P.2 does not specifically set out the reasons which persuaded the Testator to depart from the earlier testamentary dispositions. It is settled that a Testator is entitled to change or revoke his earlier Will at any point of time, provided that he possesses testamentary capacity and the subsequent Will is validly executed. Therefore, absence of reasons for changing an earlier Will does not by itself invalidate a subsequent Will. However, where a subsequent Will substantially alters the earlier testamentary scheme and is surrounded by other suspicious circumstances, the circumstances relating to the earlier Wills assume importance.

11. In the present case, this Court has to consider whether the earlier Wills were produced before the Court, whether their contends were established and whether Ex.P.2 Will materially departs from the earlier testamentary scheme. Unless the contends of the earlier Wills and the nature of the departure are established, the Court cannot presume that the mere existence of earlier Wills creates a conclusive suspicion against Ex.P.2 Therefore,, this circumstance, by itself, is not sufficient to reject Ex.P.2, though it forms part of the over all circumstances requiring scrutiny.

12. Further, Ex.P.2 shows that the Testator was about 87 years old at the relevant point of time. The defendants contend that the signatures appearing on Ex.P.2 are shaky and that such signatures indicate that the Testator was not physically or mentally capable of executing the document. It is necessary to distinguish between physical witness and testamentary incapacity. Advanced age, illness, trembling hands or physical infirmity do not automatically establish absence of a sound disposing state of mind. On the other hand, if the physical condition is accompanied by evidence showing loss of memory, lack of comprehension or inability to understand the nature and consequences of the testamentary disposition, the Court must carefully examine the evidence.

13. The defendants contends that the Testator was frequently undergoing treatment and that medical records have not been produced. The plaintiffs, on the other hand, rely principally upon the evidence of the attesting witnesses to establish that the Testator was in a sound disposing state of mind. The question therefore is whether the oral evidence of P.W.2 and P.W.3 is sufficiently reliable to establish testamentary capacity despite the absence of medical evidence. There is no universal rule that a doctor must be examined whenever an aged or infirm person executes a Will. However, where the propounder is aware of serious allegations concerning the health and mental condition of the Testator and where medical treatment and hospitalisation are specifically relied upon, the medical evidence, if available, may assume considerable importance. The Court cannot draw an adverse inference merely because doctors have not been examined unless it is shown that such evidence was available to the plaintiffs and was deliberately withheld.

14. In the present case, D.W.1 admitted that he had not produced medical documents to establish that the Testator was completely bed ridden or that his mental faculties had deteriorated. At the same time, the plaintiffs have not produced any contemporaneous medical material to positively establish the mental condition of the Testator. Therefore, the issue has to be determined primarily on the basis of the evidence of the persons present at the execution and the other surrounding circumstances.

15. The defendants rely upon Ex.D.2, a letter dated 14.06.2004, set to contain the admitted signature of T.Pullana Gupta. According to the defendants, the signature in Ex.D.2 materially differs from the signatures appearing in Ex.P.2. Comparison of signatures is a permissible circumstance. However, the Court must exercise considerable caution while arriving at a conclusion solely on visual comparison. Signature may vary on account of age, illness, physical weakness and the circumstances under which it is written. The Court cannot, merely by comparing Ex.D.2 and Ex.P2 with the naked eye, disregard the direct testimony of attesting witnesses unless the difference is so fundamental and apparent as to make the case of execution inherently improbable. The signatures in Ex.D.2 are therefore only one circumstance and have to be considered along with the evidence of P.W.2 and P.W.3.

16. The defendants strongly rely upon the fact that Ex.P.2 is dated 27.12.2004, immediately after the Tsunami of 26.12.2004. According to them, the entire city was affected and paralysed and it was improbable that the Testator and the attesting witnesses assembled on the following day for execution of the Will. The Court takes judicial notice of the devastating Tsunami of 26.12.2004. However, the mere occurrence of a natural calamity on the preceding day cannot automatically lead to the conclusion that no person could have met or executed a document on 27.12.2004. It was necessary for the defendants to establish, by appropriate material, that the locality in which the testator and witnesses resided was in accessible or that the circumstances prevailing on that particular day rendered the execution is impossible. No such evidence has been brought before this Court, therefore, the Tsunami circumstance, standing by itself, does not establish that Ex.P.2 could not have been executed on 27.12.2004. Nevertheless, when the date is relied upon as a part of a series of alleged suspicious circumstances, it has to be considered together with the evidence regarding the actual presence of the witnesses and execution of the document.

17. The defendants contend that the scribe of the Will has not been examined. P.W.3 stated in his evidence that Mr.Haridass, Senior Advocate, drafted the Will. At the same time, P.W.3 was unable to clearly remember certain particulars concerning the scribe. The defendants therefore contend that the evidence of P.W.3 regarding the preparation of the Will is unreliable. The scribe of a Will is not necessarily an attesting witness. His non-examination is not invariably fatal if execution and attestation or otherwise established in accordance with law. However, where the circumstances regarding the preparation of the document are seriously disputed and the identity of the person who drafted the Will is relied upon as a circumstance, the non-examination of the person who drafted, it may assume significance.

18. In the present case, the plaintiffs have established the execution of the Will through the attesting witnesses. Therefore, non-examination of the scribe by itself is not fatal. The central question in the present case is whether the evidence of P.W.2 and P.W.3, taken together, establishes the requirements of Section 63(c) of the Indian Succession Act. The Court is required to examine the substantive evidence and not merely the form in which the witnesses identified the document. It is not necessary for both attesting witnesses to be examined if the evidence of one attesting witness satisfactorily proves execution and attestation. In the present case, both attesting witnesses have been examined. P.W.3 has positively stated that the testator signed Ex.P.2, that P.W.3 signed as a attesting witness, that Suresh Babu signed as the other attesting witness and that all were present. P.W.2 has also identified the signature of the testator and his own signature as an attesting witness. The evidence of P.W.2& P.W.3 therefore has to be read together. Upon a cumulative reading of their evidence, both witnesses have spoken about the execution of Ex.P.2 by the testator and their attestation thereof. The inconsistencies pointed out by the defendants principally relate to peripheral matters such as the preparation of the proof affidavit, the identity of the person who typed the document, colour or paper, precise details concerning the scribe and certain surrounding facts. Those inconsistencies cannot automatically displace their direct evidence regarding execution unless the Court finds that the strike at the root of their presence and participation in the execution. On the evidence presently available, this Court is satisfied that P.W.2 & P.W.3 have substantially established the execution and attestation of Ex.P.2. Further, non-examination of the doctors is not automatically fatal unless the facts establish that the medical evidence was indispensable for resolving the issue of testamentary capacity.

19. The defendants also rely upon the alleged thumb impression of the testator in a letter dated 23.02.2005 marked as Ex.D.4 series. According to the defendants, the fact that the testator affixed a thumb impression shortly before his death establishes his poor physical and mental condition. The use of a thumb impression shortly before death may establish physical weakness. However, it does not automatically establish that the testator lacked mental capacity nearly two months earlier, on 27.12.2004. Mental capacity has to be determined with reference to the relevant date of execution of the Will. Unless the document dated 23.02.2005 contains material establishing a continuing mental incapacity extending back to 27.12.2004, no conclusive inference can be drawn merely from the affixture of a thumb impression.

20. The defendants further contend that the distribution under Ex.P.2 is disproportionate and that no reasons are given for making unequal distributions. A testator is ordinarily entitled to distribute his property in any manner he considers appropriate. A Will cannot be invalidated merely because the Court or

the legal heirs consider the distribution unequal. However, an unnatural or wholly inexplicable exclusion of natural heirs, coupled with active participation by beneficiaries in the execution, serious infirmity of the testator or other suspicious circumstances may require greater scrutiny. In the present case, the defendants have not established that any beneficiary activity participated in the preparation or execution of Ex.P.2 Will. The unequal distribution therefore, cannot, by itself, invalidate the Will.

21. The defendants have also contended that Ex.P.2 does not contain particulars of every bank deposit, account, jewels, silver articles or other movable properties. A Will is not required to contain an exhaustive inventory of every movable asset unless the intention of the testator make such particulars necessary. The absence of details regarding every movable asset does not establish forgery or fabrication. Questions regarding assets not specifically dealt with may arise at the stage of administration of the estate. Such questions do not necessarily affect the validity of the Will.

22. The defendants contend that the Will does not disclose the testamentary document allegedly executed by the testator’s wife, late Smt. Leelavathy, concerning the Anna Nagar property. The Testator was stated to have acquired the property after the death of his wife as her legal heir. Unless it is established that the title of the testator to the property was materially different from what is stated by the plaintiffs or that the alleged Will of the wife imposed restrictions affecting his testamentary power, non-reference to such documents in Ex.P.2 cannot by itself invalidate Ex.P.2. The defendants have not placed sufficient material before the Court to establish that the alleged suppression affected the execution or validity of Ex.P.2.

23. The defendants have raised numerous circumstances as suspicious. This Court has considered them cumulatively. However, none of this circumstances, either individually or cumulatively, can displace the Will. The suspicious circumstances relied upon by the defendants, when examined in the light of the evidence as a whole, are not sufficient to reject Ex.P.2 Will. This Court is satisfied that the direct evidence of the attesting witnesses establishes due execution and attestation and that the testator acted voluntarily with a sound disposing state of mind. This Court holds that the plaintiffs have established that Ex.P.2 Will dated 27.12.2004 was executed by late T.Pullana Gupta. The plaintiffs are therefore entitled to the grant of letters of administration with the Will annexed.

24. In the result, the TOS is decreed. It is declared that the last Will and Testament dated 27.12.2004 executed by late T.Pullana Gupta marked as Ex.P.2, has been duly proved. Letters of Administration with the Will dated 27.12.2004 annexed shall be granted to the plaintiffs, subject to their furnishing administrative bond for Rs.25,000/- in favour of the Assistant Registrar (O.S.II), High Court, Madras and comply with all statutory and procedural requirements.

25. The Letters of Administration shall be subject to the plaintiffs filing the requisite inventory of the estate and statement of accounts within a period of six weeks from the date of receipt of copy of this order. There shall be no order as to cost. 30.09.2026 vsn

K.GOVINDARAJAN THILAKAVADI J. VSN TOS No. 4 of 2006 10-09-2026