Madras High Court
G.Rajagopal vs V.Govindaraj (Died) on 26 April, 2022
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 S.A.No.2047 OF 2002
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 02.11.2021
PRONOUNCED ON : 26.04.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.2047 of 2002
G.Rajagopal ... Appellant / 1st Respondent /
2nd Plaintiff
Vs.
1. V.Govindaraj (Died)
2. Jayaram
3. Sengamalaimmal
4. Mahalakshmi
5. Umarani
6. Marichamy
7. Suguna Devi
8. Murugadoss
9. S.Rajammal
10.Mangammal
11.S.Ananthapadmanabhan
12.S.Damodaran
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2 S.A.No.2047 OF 2002
13.S.Radhakrishnan
14.S.Ravichandran
15.S.Sreedharan
16.Lakshmi Ammal
17.Sakunthala
18.Jayalakshmi
19.Mahalakshmi
20.Rajalakshmi
21.Subbuthai
22.Bhavani (Died)
23.R.Gopalsamy
24.Raghavan ... Respondents / Appellants
(Defendants 2, 6, 12 to 26,
28 and 29) / Defendants
25.Subbulakshmi
26.Santhanam
27.Kannan
28.Madhavan
29.Karuppasamy
30.Maheswari
31.Prema
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3 S.A.No.2047 OF 2002
32.M.Krishnaveni
33.R.Sathiyabama
34.Ramachandran
( R-25 to R-31 were brought on record as LRs. of the deceased first
respondent vide Order dated 17.09.2021 made in C.M.P.(MD)Nos.
223, 225 and 226 of 2020)
(R-32 and R-33 were brought on record as LRs. of the deceased
22nd respondent vide Order dated 04.10.2021 made in C.M.P.
(MD)Nos.4106, 4108 and 4110 of 2021)
(R-34 was impleaded vide Order dated 27.10.2021 made in C.M.P.
(MD)No.4111 of 2021)
... Respondents
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Judgment and Decree of the learned
Additional District Judge (Fast Track Court), Virudhunagar,
dated 23.04.2002 in A.S.No.6 of 2001 reversing the well
considered Judgment and Decree of the learned District
Munsif, Virudhunagar, dated 23.12.1998 in O.S.No.13 of 1994.
For Appellant : Mr.V.Raghavachari,
Mr.Muthu Geethaiyan.
For R-2, R-4 to R-8,
R-12 to R-19,
R-21 & R-22,
R-25 to R-31 : Mr.S.Parthasarathy
For R-34 : Mr.G.Mariappan
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For R-9 to R-11,
R-20 & R-23 : No appearance.
***
JUDGMENT
The plaintiff in O.S.No.725 of 1989 on the file of the District Munsif, Virudhunagar, is the appellant in this second appeal.
2. The plaint was originally presented by one R.Venkatasamy and returned. Before it could be re-presented, he passed away. The case of the appellant is that before his demise, the said Venkatasamy had executed a Will dated 07.10.1989 in his favour and that he stepped into his shoes. The suit was filed for passing preliminary decree for separate possession of 2/3rd or 1/3rd share in the suit property and for other reliefs. The case of the plaintiff was that the suit schedule properties are located in Meesalur and Thadhampatti villages and that they originally belonged to one Gurusamy Naicker. The said Gurusamy Naicker had four sons, namely Veerappa Naicker, Ramasamy Naicker, Azhagarsamy Naicker https://www.mhc.tn.gov.in/judis 4/15 5 S.A.No.2047 OF 2002 and Subba Naicker. Azhagarsamy Naicker and Subba Naicker died leaving behind their respective wives. The said widows were given life estate and the remaining brothers took possession with regard to some properties. Both the widows passed away in the year 1950. Veerappa Naicker and Ramasamy Naicker were entitled to half share. The properties of Gurusamy Naicker were divided between Veerappa Naicker and Ramasamy Naicker. Ramasamy Naicker did not have any other source of income and with the ancestral properties that were allotted to him, he purchased some more properties. The properties left behind by Ramasamy Naicker are the suit properties. Ramasamy Naicker had a son, namely Venkatasamy and two daughters, namely Nachiarammal and Chelliammal. Venkatasamy was a bachelor and he left India for Singapore some time in 1930s. Ramasamy Naicker passed away on 05.11.1959. Before his demise, he executed a Will dated 22.09.1957 (Ex.A.10) bequeathing his estate in favour of his daughters Nachiarammal and Chelliammal. Since he was not sure if his son Venkatasamy was alive or not, he also added a rider if Venkatasamy returned, he was to be given 1/3rd share in his estate. Interestingly, Venkatasamy returned https://www.mhc.tn.gov.in/judis 5/15 6 S.A.No.2047 OF 2002 to India some time in the year 1988. The case of the appellant was that Venkatasamy executed the suit Will dated 07.10.1989 in his favour. According to him, Venkatasamy was a member of the coparcenary comprising him and Ramasamy Naicker was entitled to half share by virtue of his birth. Since he was also the beneficiary on account of the Will executed by Ramasamy Naicker, he was entitled to 2/3rd share. With these averments, the suit for partition was filed. In the suit, as many as 34 persons were made as defendants. The contesting defendants questioned the validity of the suit Will and they also raised many other contentions. Based on the divergent pleadings, the trial Court framed necessary issues. The appellant examined himself as P.W.1 and four other witnesses were examined. Ex.A.1 to Ex.A.12 were marked. On the side of the defendants, six witnesses were examined. Ex.B.1 to Ex.B.15 were marked. After considering the evidence on record, the trial Court by judgment and decree dated 23.12.1998 passed preliminary decree granting half share in favour of the appellant in respect of items 2 to 5, 7, 12 to 16 and 22 to 28. In respect of the remaining items, the suit was dismissed. The appellant did not file any appeal in respect of the disallowed portion. Some https://www.mhc.tn.gov.in/judis 6/15 7 S.A.No.2047 OF 2002 of the defendants joined together and filed A.S.No.6 of 2001 before the Additional District Court (Fast Track Court), Virudhunagar. By the impugned judgment and decree dated 23.04.2002, the decision of the trial Court was reversed and the appeal was allowed in toto and the suit came to be dismissed. Challenging the same, this second appeal came to be filed.
3. The second appeal was admitted on 20.12.2002 on the following substantial questions of law:-
“i) Whether the appellant / plaintiff has discharged his burden in proving the Will Ex.A.9 by examining the attesting witness P.W.2 as per the provisions of Law?
ii) Whether the disinheritence of near relations and heirs will automatically invalidate the Will Ex.A.9 and whether the findings of the lower appellate Court to the contra is legally sustainable in view of the latest pronouncement of this Court in Judgment reported in 2002 (2) MLJ page 830?
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iii) Whether the evidence of PWs 1 and 2 and attendant circumstances of the instant case will not be sufficient to hold that the Will Ex.A.9 is provided in a matter known to law?
4. The learned counsel appearing for the appellant reiterated all the contentions set out in the memorandum of grounds and called upon this Court to answer the substantial questions of law in favour of the appellant and set side the impugned judgment and decree and restore the decision of the trial Court.
5. Per contra, the learned counsel appearing for the respondents submitted that the impugned judgment and decree do not call for any interference.
6. The learned counsel on either side filed notes of arguments also. I carefully considered the rival contentions and went through the evidence on record.
7. The first question that calls for consideration is https://www.mhc.tn.gov.in/judis 8/15 9 S.A.No.2047 OF 2002 whether the suit Will Ex.A.9 has been proved or not. The learned counsel appearing for the respondents would point out that the testator Venkatasamy was seriously ill and he was admitted in Bose Hospital, Madurai. He was virtually given up. The chances of survival were also found to be dim. He was therefore discharged. Taking advantage of his health condition, the appellant while bringing him to the native place got the suit Will executed and registered. In the alternative, he would also question the signature appeared in the suit Will. He would point out that in the suit Will, there was no schedule of properties. He also highlighted the fact that the even before the plaint could be re-presented, Venkatasamy passed away on 03.11.1989. He also pointed out that a mere examination of P.W.2 cannot lead to conclusion to the requirement set out in Section 68 of the Indian Evidence Act has been fulfilled. According to him, P.W.2 is not a credible witness. He had admitted that he was convicted for having committed the offence of gambling. He had also admitted that he used to sign as a witness in a number of documents. According to the learned counsel appearing for the respondents, P.W.2 is a stock attestor. Even though all these contentions advanced by https://www.mhc.tn.gov.in/judis 9/15 10 S.A.No.2047 OF 2002 the learned counsel appearing for the respondents are formidable, I will have to hold that Ex.A.9 has been proved in accordance with law. Section 68 of the Indian Evidence Act 1872 only contemplates that the Will has to be proved by examining at least one of the attesting witnesses. P.W.2 was the attesting witness and by examining him, the plaintiff had more than discharged the burden cast on him. If according to the defendants, the signature appeared in Ex.A.9 is a forged one or if there was any impersonation, nothing stopped the defendants from taking appropriate steps for referring the documents to the opinion of the handwriting expert. No such step was taken. Merely because P.W.1 was convicted for the offence of gambling, that cannot operate as a disqualification. P.W.2 had in his examination in chief had deposed about his act of attestation and his testimony could not be shaken in the cross examination.
8. It is true that the defendants have been disinherited and the entire legacy has gone in favour of the appellant. But this cannot be deemed as a suspicious circumstance. The Hon'ble Supreme Court in quite a few cases https://www.mhc.tn.gov.in/judis 10/15 11 S.A.No.2047 OF 2002 held that the purpose of executing a Will is to interfere with the normal line of succession. If the property is to be inherited as per the laws of succession, then there is no need for executing a Will at all. Hence, this cannot be suspicious circumstance. The appellant is not a third party. He was the husband of Rajalakshmi who is none other than the niece of the testator. It is quite possible that Venkatasamy Naicker who returned from Singapore was taken care only by Rajalakshmi and her husband Rajagopal. In fact in the Will also, there is a recital to this effect. Venkatasamy bequeathed his estate to Rajagopal. It is true that the schedule of property is not mentioned. It is not necessary that the schedule of property has to be specifically mentioned. Rajagopal has been treated as an universal legatee of Venkatasamy Naicker. Therefore, the trial Court rightly approached the issue as regards Ex.A.9 Will and the reasons given by the first appellate Court are clearly erroneous. I therefore answer the substantial questions of law in favour of the appellant and hold that the suit Will has been duly proved by the appellant. But this will not mean that the decision of the trial Court would stand automatically restored. There are quite a few special features obtaining in https://www.mhc.tn.gov.in/judis 11/15 12 S.A.No.2047 OF 2002 this case. The foremost feature is that Ramasamy Naicker died on 05.11.1959 and obviously succession opened immediately on his demise. Ramasamy Naicker while executing the Will in the year 1959 was not sure if his son was alive or not. Therefore, after the death of Ramasamy Naicker his estate naturally devolved on his two daughters, namely, Nachiarammal and Chelliammal. Nachiarammal and Chelliammal succeeded to the estate of Ramasamy Naicker. They were enjoying the property as if they are its absolute owners. They had also dealt with the properties. Under Ex.A.4 to Ex.A.7 Nachiarammal and Chelliammal had dealt with the suit properties. The purchasers under the said sale deeds had been enjoying the properties as absolute owners and the revenue records had also been mutated in their names. They had perfected title over the properties purchased by them by sheer prescription. Such properties which were alienated before the arrival of Venkatasamy cannot obviously be included in the decree for partition.
9. The trial Court had dismissed the suit in respect of certain items and the plaintiff had also not filed any appeal, https://www.mhc.tn.gov.in/judis 12/15 13 S.A.No.2047 OF 2002 challenging the same. Since it has become final, the suit would stand dismissed in respect of those items also.
10. The Hindu Succession Act was amended, with effect from 04.12.2004. The scope and effect of the said amendment was interpreted in Vineeta Sharma V. Rakesh Sharma and Others ( (2020) 9 SCC 1), the Hon'ble Supreme Court held that by legal fiction, the daughters also will be the members of the coparcenary. It is well settled that any legal fiction must be given its full effect notwithstanding the consequence. Looked at from this perception, Chelliammal and Nachiarammal should be considered as members of the coparcenary along with their brother Venkatasamy and father Ramasamy Naicker. Following the demise of Ramasamy Naicker, Venkatasamy, Nachiarammal and Chelliammal would get each 1/3rd undivided share in the estate of Ramasamy Naicker. Since I have held that the suit Will has been proved, the appellant will be entitled to the 1/3rd share of Ramasamy Naicker's estate subject to what has been held in paragraphs 8 and 9. Preliminary decree is accordingly passed. The impugned judgment and decree are set aside and the decision https://www.mhc.tn.gov.in/judis 13/15 14 S.A.No.2047 OF 2002 of the trial Court is restored subject to the exclusions set out in paragraphs 8 and 9.
11. This second appeal is partly allowed. No costs.
26.04.2022
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
To:
1. The Additional District Judge (Fast Track Court), Virudhunagar.
2. The District Munsif, Virudhunagar.
3. The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
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PMU S.A.No.2047 of 2002 https://www.mhc.tn.gov.in/judis 15/15 16 S.A.No.2047 OF 2002 13.04.2022 https://www.mhc.tn.gov.in/judis 16/15