Madras High Court
Unknown vs Page 1 Of 22 on 4 August, 2022
Author: P.Velmurugan
Bench: P.Velmurugan
A.S(MD)No.251 of 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04.08.2022
CORAM :
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
A.S(MD)No.251 of 2008
and
CMP(MD)No.4359 of 2017
1. Rajammal @ Seethalakshmi (Died)
(Memo filed in USR.1703 dated 27.03.2017 to the effect that A1 died and
A2 to A5 are legal heirs of the deceased A1, is recorded vide order dated
05.04.2017in A.S(MD)No.251 of 2008)
2. Marimuthu
3. Sankaralingam
4. Sakthivel (Died)
5. Chithirai Kannu
6. Arumugam
7. Anathi (Minor)
8. Tamilarasi (Minor) ... Appellants
(Minor Appellants 7 and 8 are represented by their mother and natural
guardian namely, the 6th appellant)
(Minor Appellants 7 and 8 who are legal heirs of the deceased 4th
appellant were brought on record vide order dated 28.04.2017 in
CMP(MD)No.3478 to 3480/2017)
vs.
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A.S(MD)No.251 of 2008
1. Velammal (Died)
2. Murugesan
(The 2nd respondent was impleaded vide order dated 27.04.2022 in
CMP(MD)No.3481/2017)
3. Mariammal alias Sankareswari
4. Muthulakshmi ... Respondents
(The respondents 3 and 4 were brought on record as legal heirs of the
deceased 1st respondent vide order dated 27.04.2022 in CMP(MD)Nos.
8670 to 8672/2019)
Appeal Suit filed under Section 96 of the Code of Civil Procedure,
against the judgment and decree dated 28.10.2004 made in O.S.No.70
of 2004 on the file of the Additional District Judge, Fast Track Court No.I,
Tirunelveli.
For Appellants : Mr.S.Meenakshi Sundaram, Senior Counsel
for Mr.T.Selvan
For R2 : Mr.R.Manimaran
For R3 & R4 : Mr.M.P.Senthil
JUDGMENT
The 1st respondent as a plaintiff filed a suit in O.S.No.70 of 2004 on the file of the learned Additional District Judge, Fast Track Court No.I, Tirunelveli, against the appellants 1 to 5 and the 2 nd respondent, who are the defendants in the suit, for partition and separate possession Page 2 of 22 https://www.mhc.tn.gov.in/judis A.S(MD)No.251 of 2008 of her half share in the suit schedule properties and also for the medieval income. After trial, the trial Court, by judgment and decree dated 28.10.2004, passed a preliminary decree for partition. Challenging the said judgment and decree, the defendants 1 to 5 as appellants, have filed this appeal. Pending appeal, the 1st respondent and the appellants 1 and 4 died and their legal representatives were brought on record.
2. Brief plaint averments are as follows:-
The first suit schedule properties belonged to one Sankaralinga Muthaliyar and the second suit schedule properties belonged to his wife Anandam Ammal and both of them died intestate. The 1st respondent/plaintiff and the 1st appellant/1st defendant are the daughters of Sankaralinga Muthaliyar and Anandam Ammal. After the demise of their parents, the suit properties were in common enjoyment of the plaintiff and the 1st defendant. Since the plaintiff was not interested in common enjoyment, she requested the 1st defendant for partition through an advocate notice dated 28.09.2001 and the 1st defendant sent a reply notice dated 05.10.2001, stating that Sankaralinga Muthaliyar and Anandam Ammal executed separate wills in respect of the suit Page 3 of 22 https://www.mhc.tn.gov.in/judis A.S(MD)No.251 of 2008 properties on 17.08.1993 and after their demise, the said wills came into force, and accordingly, the defendants are in possession and enjoyment of the suit properties. According to the plaintiff, Sankaralinga Muthaliyar and Anandam Ammal never executed any will and the alleged wills are fabricated by the 1st defendant in order to grab the plaintiff's share in the suit properties. Further, on the date of will, Anandam Ammal was suffering from paralysis and was unconscious and therefore, it is highly improbable to state that she executed a will dated 17.08.1993. Hence, the suit.
3. Brief averments in the written statement filed by the 1st defendant adopted by the defendants 2 to 5 are as follows:-
The averment that the first suit schedule properties belonged to Sankaralinga Muthaliyar and the second suit schedule properties belonged to his wife Anandam Ammal is admitted. They executed separate wills on 17.08.1993 in a sound disposing state of mind and without any instigation. As per the will executed by Sankaralinga Muthaliyar on 17.08.1993, items 1 and 2 of the first suit schedule properties were bequeathed to the defendants 2 and 1 respectively. As Page 4 of 22 https://www.mhc.tn.gov.in/judis A.S(MD)No.251 of 2008 far as items 3 and 4 in the first suit schedule properties, it was bequeathed to the defendants 2 to 6. In respect of the second schedule properties, Anandam Ammal executed a will dated 17.08.1993, bequeathing the second suit schedule properties equally to the defendants 1 to 3 and 6. After the demise of Sankaralinga Muthaliyar and Anandam Ammal, the abovesaid wills came into force and accordingly, the defendants were in possession of their respective properties as per the wills. Therefore, the plaintiff has no right over the suit properties and there was no common possession and enjoyment of the suit properties by the plaintiff and the 1st defendant as alleged in the plaint, whereas, it is the individual properties of the defendants. The allegation that Anandam Ammal was suffering from paralysis on the date of the execution of the will dated 17.08.1993 is denied as false, whereas, on the date of execution of the will dated 17.08.1993, she was in a sound disposing state of mind. The plaintiff never stated in his advocate notice that Sankaralinga Muthaliyar and Anandam Ammal died intestate.
Thus, the plaintiff is not entitled to any share in the suit properties and the suit is liable to be dismissed.Page 5 of 22
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4. Based on the above pleadings, the trial Court framed the following issues:-
1. Whether the plaintiff is entitled to half share as claimed in the plaint?
2. Whether the plaintiff is entitled to the relief of possession?
3. To what other reliefs, the plaintiff is entitled to?
5. In order to substantiate the case on the side of the plaintiff, the plaintiff examined herself as PW1 and two documents were marked as Exs.A1 and A2. On the side of the defendants, the 1st defendant examined herself as DW1 and one Ganesan, one of the Attestors to the wills, was examined as DW2 and three documents were marked as Exs.B1 to B3.
6. The trial Court, considering the pleadings, oral and documentary evidence, decreed the suit by judgment and decree dated 28.10.2004, and passed a preliminary decree for partition. Challenging the said judgment and decree, the defendants 1 to 5 as appellants, have filed this appeal.
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7. Learned counsel for the appellants would submit that the suit properties are self acquired properties of the parents of the 1st appellant and the 1st respondent namely, Sankaralinga Muthaliyar and Anandam Ammal. Sankaralinga Muthaliyar executed a will dated 17.08.1993 under Ex.B2 in respect of the first suit schedule properties in favour of the appellants 1 to 5 and the 2nd respondent who are the defendants in the suit and Anandam Ammal also executed a will dated 17.08.1993 under Ex.B1 in respect of the second suit schedule properties in favour of the appellants 1 to 3 and the 2nd respondent. He would further submit that since the suit properties are self-acquired properties of Sankaralinga Muthaliyar and Anandam Ammal, they are entitled to settle their properties as per their wish and will and the 1st respondent/plaintiff has no right to challenge the same. Further, at the time of execution of the wills, both the Testator and Testatrix were physically well and were in sound disposing state of mind and the appellants also examined one of the Attestors to the wills as DW2, as such, the execution of the wills has been proved in the manner known to law. In the will itself, the Testator and Testatrix have stated why they have not given any property to the 1st respondent/plaintiff, since they have already provided jewels and Page 7 of 22 https://www.mhc.tn.gov.in/judis A.S(MD)No.251 of 2008 properties to the 1st respondent at the time of her marriage and that her family is well settled and her son-in-law is a famous doctor and Sankaralinga Muthaliyar also had taken treatment from him and he knows about the health condition of the Testator and therefore, the 1 st respondent should have examined her son-in-law to prove her defence that at the time of executing the will, the Testator and the Testatrix were not in a sound disposing state of mind. Thus, no benefits were given to the 1st respondent under Exs.B1 and B2-wills and disinheritance of the 1st respondent is properly explained in the wills, as such, there are no suspicious circumstances regarding execution of Exs.B1 and B2-wills. Whether a will has been executed by the Testator in a sound disposing state of mind is purely a question of fact, which will have to be decided in each case on the circumstances disclosed and the nature and quality of the evidence adduced and as regards Section 63 of the Indian Succession Act, 1925, the suspicion alleged must be one inherent in the transaction itself and not the doubt that may arise from conflict of testimony which becomes apparent on an investigation of the transaction and it also depends on facts of each case. In support of the said propositions, the learned counsel relied on a judgment of the Hon'ble Supreme Court Page 8 of 22 https://www.mhc.tn.gov.in/judis A.S(MD)No.251 of 2008 reported in (2005) 1 SCC 280, Meenakshiammal(Dead) Through LRs and others vs. Chandrasekaran and another.
8. Learned counsel for the appellants would further submit that the 1st appellant is an illiterate woman and therefore, minor discrepancies in her deposition regarding the execution of the wills, will not be a ground to disbelieve the wills. Admittedly, Sankaralinga Muthaliyar and Anandam Ammal were living with the 1st appellant till their life time and though during the relevant point of time, they were physically sick, their mental status was very good and they were in a sound disposing state of mind while executing the wills. The 1st respondent has not examined any independent witness to support her case of suspicious circumstances regarding the execution of the wills and the trial Court disbelieved the wills not based on sound reasons and the reason assigned by the trial Court is not sustainable. The reason for disinheritance of the 1st respondent is specifically stated in the wills which the trial Court failed to appreciate and erroneously decreed the suit. The circumstances of depriving the natural heirs should not raise any suspicion, because, the whole idea behind the execution of the will is to interfere in the normal Page 9 of 22 https://www.mhc.tn.gov.in/judis A.S(MD)No.251 of 2008 line of succession and so, natural heirs would be debarred in every case of the will. In support of the said proposition, the learned counsel relied on a judgment of the Hon'ble Supreme Court reported in (2005) 8 SCC 67, Pentakota Satyanarayana and others vs. Pentakota Seetharatnam and others. Further, in the matter of appreciating the genuineness of execution of the will, there is no place for the Court to see whether the distribution made by the Testator was fair and equitable to all of his children and the Court does not apply Article 14 to dispositions under a will. In support of the said proposition, the learned counsel placed reliance on a recent judgment of the Apex Court reported in CDJ 2022 SC 387, Swarnalatha and others vs. Kalavathy and others. Thus, the learned counsel for the appellants would submit that the judgment and decree passed by the trial Court is liable to be set aside and this appeal has to be allowed.
9. Learned counsel for the respondents 3 and 4 would submit that the relationship is admitted and the character of the suit properties is also admitted. The 1st respondent is a widow and she is also taking care of her children and one of her son-in-laws is a Doctor who has given Page 10 of 22 https://www.mhc.tn.gov.in/judis A.S(MD)No.251 of 2008 treatment to the parents of the 1st respondent. The 1st respondent's father suffered with Cancer and her mother suffered with paralysis and both were mentally as well as physically not fit to execute the wills. The parents also had affection towards the 1st respondent and that the execution of the wills has not been proved in the manner known to law. There are lot of contradictions and discrepancies in the depositions of DW1 and DW2, who is said to have attested the wills executed by the parents of the 1st respondent. DW2 is none other than the close friend of the 2nd respondent/6th defendant and larger portion of the property has been bequeathed to the 2nd respondent and he is a major beneficiary and he actively participated in the execution of the wills.
10. Learned counsel for the respondents 3 and 4 would further submit that the 2nd respondent set up the wills with the help of his friend/DW2 and even DW2 also admitted that he is a close friend of the 2nd respondent. He has not clearly spoken about the attestation and on a combined reading of the deposition of DW2 and Section 63 of the Indian Succession Act, 1925, and Section 68 of the Indian Evidence Act, 1872, DW2's evidence is not sufficient to prove the execution of the wills and Page 11 of 22 https://www.mhc.tn.gov.in/judis A.S(MD)No.251 of 2008 therefore, the other Attestor should have been examined to prove the execution of the wills, but in this case, that has not been done. Therefore, the wills have not been proved in the manner known to law. If one attesting witness can prove the execution of the will in terms of clause (c) of Section 63 viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of the other attesting witness can be dispensed with. In support of the said proposition, the learned counsel relied on a judgment of the Apex Court reported in (2008) 15 SCC 365, Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria and others. Once the wills are not proved, it should be taken as the parents of the 1st respondent died intestate and as legal heirs of the deceased parents, the 1st appellant and the 1st respondent are equally entitled to half share. The propounder of the will has to show that the will was signed by the Testator and at the relevant point of time, he was in a sound disposing state of mind and all the legitimate suspicious circumstances must be removed and satisfactorily explained before the will is accepted. In support of the said proposition, the learned counsel relied on a judgment of the Hon'ble Supreme Court reported in 2007-2-L.W-870, B.Venkatamuni vs. C.J.Ayodhya Ram Page 12 of 22 https://www.mhc.tn.gov.in/judis A.S(MD)No.251 of 2008 Singh and others and also the judgment reported in 2007 (2) CTC 172, Niranjan Umeshchandra Joshi vs. Mridula Jyoti Rao and others. Thus, the trial Court rightly appreciated the evidence and granted the preliminary decree for partition regarding 1/2 share. There is no perversity in the judgment of the trial Court and hence, the appeal is liable to be dismissed.
11. Heard both sides and perused the records.
12. Admittedly, the suit properties originally belonged to the parents of the 1st appellant and the 1st respondent. The suit properties are self-acquired properties of the parents namely, Sankaralinga Muthaliyar and Anandam Ammal. The first suit schedule properties belonged to Sankaralinga Muthaliyar and the second suit schedule properties belonged to his wife Anandam Ammal. The 1st appellant and the 1st respondent are their daughters. Except them, they have no other legal heirs. Sankaralinga Muthaliyar died on 20.10.1996 and Anandam Ammal died on 27.05.2000. According to the 1st respondent, her parents died intestate and therefore, as legal heirs, the 1st appellant and the 1st Page 13 of 22 https://www.mhc.tn.gov.in/judis A.S(MD)No.251 of 2008 respondent are entitled to half share each in the suit properties. However, according to the 1st appellant, her parents executed registered wills during their life time bequeathing the suit properties in favour of the appellants and the 2nd respondent and as per the wills, the 1st respondent is not entitled to get any share in the suit properties. Therefore, the suit for partition is liable to be dismissed. While the 1 st respondent contends that the wills are not genuine and the appellants have not proved the wills in the manner known to law and therefore, the trial Court rightly disbelieved the wills and granted the preliminary decree for partition, the 1st appellant contends that wills have been proved in the manner known to law by examining the Attestor/DW2 and the trial Court failed to appreciate the legal as well as factual position and erroneously disbelieved the wills and decreed the suit.
13. The relationship between the parties is admitted. The appellants have claimed that Sankaralinga Muthaliyar and Anandam Ammal executed separate wills dated 17.08.1993 under Exs.B1 and B2 and after their death on 20.10.1996 and 27.05.2000 respectively, the wills came into force and as per the wills, the appellants are entitled to Page 14 of 22 https://www.mhc.tn.gov.in/judis A.S(MD)No.251 of 2008 the entire suit properties. The core question to be decided is whether Sankaralinga Muthaliyar and Anandam Ammal died intestate or with testamentary succession. While according to the 1st respondent, her parents died intestate, the 1st appellant would state that her parents died with testamentary succession namely, Exs.B1 and B2-wills dated 17.08.1993. Now, the Court has to see whether the appellants have proved the wills in the manner known to law. In order to prove their case, the appellants examined two witnesses. The 1st appellant examined herself as DW1 and one of the Attestors to the wills has been examined as DW2. A careful reading of the evidence of DW1 and DW2 shows that there are contradictions and discrepancies. It is a settled law that the will has got to be executed under Section 63 of the Indian Succession Act, 1925, and the same has got to be proved under Section 68 of the Indian Evidence Act, 1872. Though the wills were attested by two Attestors, one of the Attestors was examined as DW2, but a reading of the evidence of DW2 shows that he has not clearly stated the requirements of proof under law for attestation. Therefore, once his evidence is not sufficient to prove the wills, the other Attestor has to be examined to prove the will, but in this case, the appellants have not Page 15 of 22 https://www.mhc.tn.gov.in/judis A.S(MD)No.251 of 2008 examined the other Attestor. Though Section 68 of the Indian Evidence Act, 1872, says that the will has got to be proved at least by examining one of the Attestors, it does not mean that only one Attestor alone has to be examined and the other Attestor need not be examined. If the propounder of the wills is able to prove the wills by examining one of the Attestors, the other Attestor need not be examined, but however, in this case, DW2 has not clearly spoken about the requirement of attestation.
14. As held in the judgment of the Apex Court reported in (2008) 15 SCC 365, Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria and others, relied on by the learned counsel for the respondents 3 and 4, where one attesting witness examined to prove the will under Section 68 of the Indian Evidence Act, 1872, fails to prove the due execution of the will, then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will, the same has to be proved by the other attesting witness, there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.
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15. In yet another judgment reported in 2007 (2) CTC 172, Niranjan Umeshchandra Joshi vs. Mridula Jyoti Rao and others, the Apex Court held as follows:-
''32. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai Shedage (2002) 2 SCC 85 and Page 17 of 22 https://www.mhc.tn.gov.in/judis A.S(MD)No.251 of 2008 Sridevi & Ors. v. Jayaraja Shetty & Ors. (2005) 8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.
33. There are several circumstances which would have been held to be described by this Court as suspicious circumstances :-
(i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will;
(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit.''
16. On a reading of the evidence of DW1 and DW2, this Court also finds that the wills said to have been executed by Sankaralinga Muthaliyar and Anandam Ammal have not been proved in the manner known to law and therefore, the trial Court rightly disbelieved the wills and came to the conclusion that Sankaralinga Muthaliyar and Anandam Page 18 of 22 https://www.mhc.tn.gov.in/judis A.S(MD)No.251 of 2008 Ammal died intestate and being the legal heirs of the said Sankaralinga Muthaliyar and Anandam Ammal, the 1st appellant and the 1st respondent are equally entitled to the suit properties and accordingly granted the preliminary decree for partition by granting 1/2 shares each. Since the execution of the wills itself has not been proved, the judgments relied on by the appellants are not applicable to the facts of this case. This Court does not find any perversity or sound reason to interfere with the judgment and decree of the trial Court.
17. In a recent judgment of the Hon'ble Supreme Court reported in 2022 Live Law (SC) 549, Kattukandi Edathil Krishnan and another vs. Kattukandi Edathil Valsan and others, it has been held as follows:-
''33.We are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC. The courts should not adjourn the matter sine die, as has been done in the instant case. There is also no need to file a separate final decree Page 19 of 22 https://www.mhc.tn.gov.in/judis A.S(MD)No.251 of 2008 proceedings. In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree. Needless to state that the suit comes to an end only when a final decree is drawn. Therefore, we direct the Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings.
34. We direct the Registry of this Court to forward a copy of this judgment to the Registrar Generals of all the High Courts who in turn are directed to circulate the directions contained in paragraph ‘33’ of this judgment to the concerned Trial Courts in their respective States.''
18. As per the above latest decision of the Hon'ble Supreme Court, a party need not file a final decree application separately. The Court itself can suo motu initiate final decree proceedings after passing the preliminary decree. Therefore, the trial Court is directed to initiate suo motu final decree proceedings and pass a final decree. Since already the suit is pending from 2004, all the final decree proceedings shall be completed within a period of six months from the date of its initiation. Registry is directed to send the original records to the trial Court Page 20 of 22 https://www.mhc.tn.gov.in/judis A.S(MD)No.251 of 2008 concerned along with the judgment and decree made in this appeal within a period of fifteen days from the date of this judgment.
19. Accordingly, the Appeal Suit is dismissed. No costs. Since the wills are not proved, CMP(MD)No.4359 of 2017 to receive the original registered will dated 17.08.1993, is also dismissed. Office is directed to return the proposed additional document filed along with the said miscellaneous petition after substituting attesting copies of the same.
bala 04.08.2022
Index : Yes / No
Internet : Yes
To
The Additional District Judge,
Fast Track Court No.I,
Tirunelveli.
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A.S(MD)No.251 of 2008
P.VELMURUGAN, J.
bala
JUDGMENT MADE IN
A.S(MD)No.251 of 2008
DATED : 04.08.2022
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