Madras High Court
G.Rajagopal (Died) vs M.B.Ganapathy Iyer (Died) on 23 November, 2022
A.S.(MD)No.166 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 11.10.2022
Pronounced on : 23.11.2022
CORAM:
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
A.S.(MD)No.166 of 2018
and
C.M.P.(MD)No.10139 of 2018
G.Rajagopal (Died)
2. Lakshmi @ Geetha
3. Meena
4. Rajam (minor) ...Appellants
(the minor 4th appellant through
her mother and natural guardian
of 2nd appellant)
(appellants 2 to 4 are brought on record
as LRS of the deceased sole appellant
vide Court order dated 29.08.2022 made
in C.M.P.(MD)No.4712 of 2022 in A.S.
(MD)No.166 of 2018)
Vs.
M.B.Ganapathy Iyer (Died)
Genga (Died)
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A.S.(MD)No.166 of 2018
1. Balasubramanian (Died)
2. Jeya Lakshmi
3. Saratha
4. Seshan
5. Krishnan
6. Narayanan
7. Kala Padmanaban
8. Meena Jeyaraman
9. Sri Ram
10. Vignesh ...Respondents
(R10 is brought on record as LRS
of the deceased 1st respondent vide
Court order dated 04.03.2020 made
in C.M.P.(MD)No.10978, 10980 and
10981 of 2019 in A.S.(MD)No.166 of
2018)
Prayer : This Appeal Suit filed under Order 41 Rule 1 & 2 r/w. Section 96 of
C.P.C., to allow the appeal by setting aside the judgment and decree passed in
O.S.No.64 of 2011 on the file of the IV Additional District Court, Tirunelveli,
dated 11.12.2017.
For Appellants : Mr.S.Meenakshi Sundaram, Senior Counsel
for Mr.M.Sengu Vijay
For Respondents : Mr.T.Selvan for R2 to R9
No appearance for R10
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A.S.(MD)No.166 of 2018
JUDGMENT
This Appeal Suit is directed against the judgment and decree passed in O.S.No.64 of 2011 dated 11.12.2017 on the file of the IV Additional District Court, Tirunelveli.
2. Gist of the plaint is as follows:-
(a) The suit properties belong to one Meenakshi Ammal, wife of the first defendant and mother of the plaintiff and the defendants 2 to 8. Meenakshi Ammal died intestate on 22.06.2005 leaving behind her husband, the first defendant and her sons and daughters, plaintiff and defendants 2 to 8. After the death of the said Meenakshi Ammal, the plaintiff and the defendants have been enjoying the properties as her legal heirs. Since the plaintiff was not willing to remain in joint possession, he demanded the defendants to divide the properties and allot 1/9th share to him.
(b) Pending suit, the first defendant had died intestate on 16.06.2012 leaving behind the plaintiff and the other defendants. After the death of the first defendant, the plaintiff and the other defendants were entitled to get 1/8 th share in the suit properties. Thereafter, the second defendant had died on 29.07.2015 leaving behind her children, defendants 9 to 11. Since the plaintiff's demand for 3/26 https://www.mhc.tn.gov.in/judis A.S.(MD)No.166 of 2018 partition was not considered, he was constrained to file the above suit for partition claiming 1/8th share in the suit properties.
3. The defence pleaded by the defendants 3 to 6, 9 and 11 :-
The suit properties belong to Meenakshi Ammal. The said Meenakshi Ammal, on her own volition and in a sound state of mind, had executed her last Will dated 05.06.1996 in respect of the suit property on 05.06.1996. After the death of Meenakshi Ammal, the Will came into force and as per the Will, the suit property came to be owned by the defendants 6 to 8. Neither the plaintiff nor the defendants 1 to 5 have any right to the suit property.
4. The defence taken by the seventh defendant:-
There are no jewels or silver articles available in Door No.2A as alleged by the plaintiff. Meenakshi Ammal while she was alive, she had executed a Will dated 05.06.1996 bequeathing the properties to the defendants 6 to 8. After the death of Meenakshi Ammal, the Will came into force and the defendants 6 to 8 have been enjoying the suit properties.
5. The plaintiff has filed a reply statement denying and disputing the averments taken by the defendants in their written statement and taken a stand that the said Meenakshi Ammal had never executed any Will on 05.06.1996. 4/26 https://www.mhc.tn.gov.in/judis A.S.(MD)No.166 of 2018
6. The defendants 6 to 8 have also pleaded that the said Meenakshi Ammal had executed her second Will on 09.06.2003.
7. On the basis of the above pleadings, the trial Court has framed the following issues:-
(1) Whether the plaint is valued properly and proper court fee is paid? (2) Whether the deceased Meenakshi Ammal executed a Will dated 05.06.1996 in favour of defendants 6 to 8 in a sound state of disposition and came into force?
(3) Whether the plaintiff is entitled to 1/9 share in the suit properties? (4) To what relief, the plaintiff is entitled to? The trial Court has framed the following additional issues on 30.08.2017:-
(1) Whether Meenakshi Ammal duly executed a Will regarding the plaint third schedule property, on 05.06.1996?
(2) Whether the third schedule property belongs to D6 to D8? (3) Whether the plaintiff is entitled for any share in plaint third schedule property?
8. During trial, the plaintiff has examined himself as P.W.1 and four other witnesses as P.W.2 to P.W.5 and exhibited 10 documents as Ex.A.1 to Ex.A10. 5/26 https://www.mhc.tn.gov.in/judis A.S.(MD)No.166 of 2018 The defendants have examined the sixth defendant Seshan as D.W.1 and two other witnesses as D.W.2 and D.W.3 and exhibited 5 documents as Ex.B.1 to Ex.B.5. 11 documents have been exhibited as Court documents as Ex.X.1 to Ex.X.11.
9. The learned trial Judge, upon considering the evidence both oral and documentary and on hearing the arguments of both the sides, has passed the impugned judgment dated 11.12.2017 holding that the defendants have proved the execution of Ex.X1-Will, that all other properties left out in Ex.X.1-Will were given to the defendants 6 to 8 and that the plaintiff is not entitled to get any share in any of the suit properties, dismissed the suit with cost. Aggrieved by the dismissal of the suit, the plaintiff has come forward with the present appeal.
10. Appeal grounds:-
The judgment of the trial Court is against law, weight of evidence and probabilities of the case. The trial Court had erred in dismissing the suit in toto as the first defendant's share in the suit schedule will vest on all the surviving legal heirs. The trial Court had failed to note that the alleged execution of the Will by the deceased Meenakshi Ammal is shrouded with suspicious 6/26 https://www.mhc.tn.gov.in/judis A.S.(MD)No.166 of 2018 circumstances. The trial Court had erred in deciding that the non-production of the original Will will not affect the case of the defendants. The trial Court had also erred in coming to the conclusion that the third schedule property will also vest on the defendants 6 to 8. The trial Court had also erred in deciding that no such jewels were available for partition on the date of death of Meenakshi Ammal. The trial Court ought to have disbelieved the execution of the Will, when the original available Will has not been produced before the trial Court. Hence, the decree and judgment of the trial Court is liable to be set aside and the appeal is to be allowed.
11. The points that arise for consideration are:
(i) Whether the trial Court erred in rendering a finding that the Will under Ex.X.1 has been proved, despite showing that the defendants have miserably failed to produce the original Will nor accounted for its non-production and that they have not laid sufficient foundation for leading secondary evidence?
(ii) Whether the trial Court erred in giving a finding that the third schedule property will also vest on the defendants 6 to 8, on the basis of the residuary clause in Ex.X.1-Will and in the absence of any pleading or proving the second Will, dated 09.06.2003 alleged to have been executed by the said Meenakshi Ammal?
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(iii) Whether the trial Court erred in deciding that no such jewels were available for partition on the date of death of Meenakshi Ammal, despite showing that the defendants have themselves admitted that they have used the jewels for meeting out the medical expenditure of their mother and father and also taken away by the defendants 2, 4 and 5?
(iv) Whether the Will dated 05.06.1996 alleged to have been executed by Meenakshi Ammal under Ex.X.1 is true, valid and is proved?
(v) Whether the appeal is to be allowed?
(vi) To what other relief, the appellants/plaintiff is entitled? Points (i) to (vi) :-
For the sake of convenience and brevity, the parties herein will be referred as per their status / ranking in the trial Court.
12. Admittedly, the plaintiff and the defendants 2 to 8 are the sons and daughters of the first defendant and his wife Meenakshi Ammal.
13. Originally, the partition suit was laid claiming 1/9th share in respect of only one property i.e., the first item of the suit properties. 8/26 https://www.mhc.tn.gov.in/judis A.S.(MD)No.166 of 2018
14. As already pointed out, pending suit, the first defendant, father of the plaintiff and the defendants 2 to 8, had died and subsequently, the second defendant, sister of the plaintiff and the defendants 3 to 8, had also died and hence, the legal representatives of the deceased second defendant were impleaded as defendants 9 to 11.
15. It is not in dispute that the first item of the suit properties was owned by the said Meenakshi Ammal and that she died on 22.06.2005.
16. According to the plaintiff, since his mother Meenakshi Ammal had died intestate, he is entitled to get 1/9th share and after the death of his father, first defendant, is entitled to get 1/8th share in the first item of the suit properties. But the defence of the defendants is that the said Meenakshi Ammal, while she was in a sound state of mind, executed a Will on 05.06.1996 bequeathing the said property to the defendants 6 to 8.
17. Admittedly, the defendants 6 to 8, who are claiming the ownership of the first item of the suit properties through the Will dated 05.06.1996, have not produced the original Will before the trial Court. But on the other hand, by taking a stand that the original Will was with the plaintiff, they have summoned the Sub Registrar office and exhibited a copy of the Will as Ex.X.1. 9/26 https://www.mhc.tn.gov.in/judis A.S.(MD)No.166 of 2018
18. The learned Senior Counsel appearing for the appellants would contend that the party raising their case on the basis of a Will, is duty bound to produce the original Will before the Court and that they have to laid foundation for leading secondary evidence, by proving that the original Will was lost or destroyed.
19. At this juncture, it is necessary to refer the judgments relied on by the learned counsel appearing for the respondents 2 to 9,
(i) 2021 (1) MWN (Civil) 821 :
Dhanpat Vs. Sheo Ram (Deceased) through L.Rs. and others “15. In a judgment reported as M. Ehtisham Ali for himself and in place of M. Sakhawat Ali, since deceased v. Jamna Prasad, since deceased and others, AIR 1922 PC 56, the appellants-plaintiffs filed a suit on the basis of a sale deed. During trial, the stand of the plaintiffs was that the original sale deed was lost but since it was registered, secondary evidence by way of a certified copy prepared by the office of the Registrar was produced. It was not disputed that the copy produced was not the correct copy of the registered document. The suit was dismissed for the reason that the plaintiffs have not succeeded in satisfactorily establishing the loss of the original sale deed. The Court held as under:
10/26
https://www.mhc.tn.gov.in/judis A.S.(MD)No.166 of 2018 “It is, no doubt, not very likely that such a deed would be lost, but in ordinary cases, if the witness in whose custody the deed should be deposed to its loss, unless there is some motive suggested for his being untruthful, his evidence would be accepted as sufficient to let in secondary evidence of the deed. And if in addition he was not cross-examined, this result would follow all the more. There is no doubt that the deed was executed, for it was registered, and registered in a regular way, and it is the duty of the registrar, before registering, to examine the grantor, or some one whom he is satisfied is the proper representative of the grantor, before he allows the deed to be registered.”
16. In another judgment reported as Aher Rama Gova & Ors. v. State of Gujarat, 1979 (4) SCC 500, the secondary evidence of dying declaration recorded by a Magistrate was produced in evidence. This Court found that though the original dying declaration was not produced but from the evidence, it is clear that the original was lost and was not available. The Magistrate himself deposed on oath that he had given the original dying declaration to the Head Constable whereas the Head Constable deposed that he had made a copy of the same and given it back to the Magistrate. Therefore, the Court found that the original dying declaration was not available and the prosecution was entitled to give secondary evidence which consisted of the 11/26 https://www.mhc.tn.gov.in/judis A.S.(MD)No.166 of 2018 statement of the Magistrate as also of the Head Constable who had made a copy from the original. Thus, the secondary evidence of dying declaration was admitted in evidence, though no application to lead secondary evidence was filed.
17. Even though, the aforesaid judgment is in respect of the loss of a sale deed, the said principle would be applicable in respect of a Will as well, subject to the proof of the Will in terms of Section 68 of the Evidence Act. In the present case as well, the Will was in possession of the beneficiary and was stated to be lost. The Will is dated 30th April, 1980 whereas the testator died on 15th January, 1982. There is no cross-examination of any of the witnesses of the defendants in respect of loss of original Will.
Section 65 of the Evidence Act permits secondary evidence of existence, condition, or contents of a document including the cases where the original has been destroyed or lost. The plaintiff had admitted the execution of the Will though it was alleged to be the result of fraud and misrepresentation. The execution of the Will was not disputed by the plaintiff but only proof of the Will was the subject matter in the suit. Therefore, once the evidence of the defendants is that the original Will was lost and the certified copy is produced, the defendants have made out sufficient ground for leading of secondary evidence.” 12/26 https://www.mhc.tn.gov.in/judis A.S.(MD)No.166 of 2018
(ii) 2013 (3) CTC 729 :
Palaniammal and another Vs. Pappathi and others “23.The question whether the defendants were justified in not adequately explaining about the non-production of the original Will as contained in Ex.B1, gains significance. D.W.1 during cross-examination is presumed to have uttered out a fact to the effect that the original Will as contained in Ex.B1 was handed over to P1-Pappathi. But strictly in accordance with law, by invoking Order 11 of C.P.C, the defendants did not resort to discovery and inspection. But one fact is clear that an explanation came forth from the defendants' side that the original Will as contained in Ex.B1 was not in their possession and that it was with Pappathi-P1, but she was not examined to contradict and torpedo such claim.
24.At this juncture, I could recollect the famous adage that for deciding the civil cases 'the preponderance of probabilities', should be taken as the ones governing the adjudication.
Accordingly if viewed, it is clear that had really the original Will as contained in Ex.B1 been in the hands of the defendants, then there might not have been any valid reason for withholding the same. From the very fact that the defendants filed Ex.B1-the certified copy of the Will dated 9.7.1969, bespeaks and betokens that the original Will was not in their hands. As such, non 13/26 https://www.mhc.tn.gov.in/judis A.S.(MD)No.166 of 2018 production of original Will as contained in Ex.B1 in this case, in my considered opinion, cannot be taken as fatal.”
(iii) 2022 (2) MWN (Civil) 419 :
Valliammal @ Mani Vs. Sadayappan and others “27.In the present case, DW-1 has stated in his evidence that one of the attesting witness Shanmugam had mentioned about Ex.B1 Will. The original Will was not able to be traced and hence the certified copy was obtained and filed before the Court. The non- availability of the original Will has been explained by DW-1 and there is no contra evidence available to the effect that the 2nd and 3rd defendants had deliberately withheld or suppressed the original Will. It is now a well settled law that where the original Will has been lost and it has been properly explained, the certified copy of the Will can be acted upon as secondary evidence. Useful reference can be made to the judgment of the Hon’ble Supreme Court in Benga Behera and others vs. Braja Kishore Nanda and others reported in 2008 (1) LW 241.”
20. In the first decision case, the plaintiff therein had admitted the execution of the Will, but claimed that the same was executed under fraud and misrepresentation and by observing that there is no cross-examination on any of the witnesses of the defendants in respect of loss of original Will, the Hon'ble 14/26 https://www.mhc.tn.gov.in/judis A.S.(MD)No.166 of 2018 Supreme Court has held that the defendants have made out sufficient ground for leading of secondary evidence. In the second decision case, a learned Judge of this Court, by observing that in case, if the original Will was in the hands of the defendants, then there might not have been any valid reason for withholding the same and the very filing of the certified copy of the Will bespeaks and betokens that the original Will was not in their hands and that therefore non-production of the original Will cannot be taken as fatal.
21. In the present case, it is the specific contention of the defendants that the plaintiff himself had admitted the execution of Ex.X.1-Will in the earlier proceedings.
22. It is not in dispute that the said Meenakshi Ammal has filed a suit in O.S.No.448 of 2002 on the file of the Subordinate Court, Tirunelveli against the plaintiff herein. In the said suit in O.S.No.448 of 2002, the plaintiff herein has filed an additional written statement on 29.01.2011 under Ex.B.2 and wherein, the plaintiff Rajagopal has specifically admitted the Will executed in favour of the defendants and the said portion is extracted hereunder for better appreciation:-
15/26
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mKYf;F te;J> 6 Kjy; 8 thjpfs; Nkw;gb nrhj;ij
mDgtk; nra;J tUfpd;wdh;.”
23. As rightly contended by the learned counsel appearing for the respondents 2 to 9, the plaintiff has taken a stand in the present suit that his mother Meenakshi Ammal had died intestate, but in the earlier proceedings initiated by his mother Meenakshi Ammal, he filed an additional written statement admitting the execution of the Will dated 05.06.1996 and after the death of Meenakshi Ammal, the Will came into force and on the basis, the plaintiff 6 to 8 therein (defendants 6 to 8 in the present suit) have been enjoying the properties. When the above admission was brought to the notice of the plaintiff during his cross-examination, he would admit the same.
24. Considering the above specific admission given by the plaintiff and the legal position above referred, the observation of the learned trial Judge that 16/26 https://www.mhc.tn.gov.in/judis A.S.(MD)No.166 of 2018 non-production of the original Will, will not affect the case of the defendants, cannot be found fault with.
25. It is settled law that a person, who claims any benefit under a Will (propounder) has to prove and the onus is on the person, who propounded the Will to satisfy the conscience of the Court that it is the Will of a free and capable testator and that he has to remove the suspicious circumstances surrounding the Will.
26. In order to meet out the requirements of Section 68 of Indian Evidence Act, the defendants have examined D.W.3, the alleged attestor of the Will.
27. As rightly pointed out by the learned counsel appearing for the respondents 2 to 9, D.W.3 has given evidence that himself and the first witness Rajagopal had seen Meenakshi Ammal signing the Will and that the said Meenakshi Ammal had seen the attestation of the attesting witnesses.
28. It is pertinent to note that D.W.3 in his evidence would say categorically that the other witness Rajagopal, who had attested the Will in 17/26 https://www.mhc.tn.gov.in/judis A.S.(MD)No.166 of 2018 dispute, is none other than the plaintiff of the present suit. D.W.3 would further say that the plaintiff Rajagopal and himself had identified the executant Meenakshi Ammal in the Registrar office. Though D.W.3 was subjected to cross-examination, his evidence regarding the execution, attestation and registration of the Will was not at all shaken during his cross-examination.
29. Though the plaintiff as P.W.1 has disputed the factum of attesting the Will and identifying the executant at the Registrar office, as rightly contended by the learned counsel appearing for the respondents 2 to 9, he has not specifically disputed his signatures found in Ex.X.1-Will and his particulars furnished therein.
30. The learned Senior Counsel appearing for the appellants would submit that though Meenakshi Ammal is having eight children, the defendants have not assigned any reason or ground for excluding her other legal heirs and that the defendants have not offered any reason or explanation to dispel the above suspicious circumstances surrounding the Will.
31. As rightly contended by the learned counsel appearing for the respondents 2 to 9, as already pointed out, according to the plaintiff, Meenakshi Ammal had executed a sale deed in his favour in respect of some other property 18/26 https://www.mhc.tn.gov.in/judis A.S.(MD)No.166 of 2018 on 05.06.1996 and on the same day, she had also executed the Will in question bequeathing the first item of the suit properties in favour of the defendants 6 to 8. Moreover, as rightly contended by the learned counsel appearing for the respondents 2 to 9, Meenakshi Ammal in Ex.X.1-Will itself has assigned reasons for not bequeathing her properties in favour of the other children and the relevant portions are extracted hereunder:-
“vd; Fkhuj;jpfs; %th;fSf;Fk; FLk;g
nfsutj;jpw;Nfw;g eiffs; Nghl;Lk; ey;y Kiwapy;
rPh;rPuhl;Lfs; nra;Jk; jpUkzk; nra;J nfhLf;fg;gl;L
mth;fSk; mtuth; FLk;gj;Jld; ey;y epiyapy; Rfkhf
tho;e;J tUfpwhh;fs;. vd; Fkhuh;fs; Ithpy; vd; %j;j
Gjy;tdhd f.ghyRg;gpukzpaDf;F kl;Lk; jpUkzk;
ele;Js;sJ. kw;w ehy;th;fSf;Fk; jpUkzk; elf;f
Ntz;bajhf ,Uf;fpwJ. vd;Dila kw;w
Gjy;th;fisf;fhl;bYk; Nkw;gb vd; %j;j Gjy;tdhd
f.ghyRg;gpukzpaj;Jf;F ehd; epiwaNt nra;Js;Nsd;.
.......
vdJ %j;j Gjy;tdhd f.ghyRg;gpukzpaDf;F ehd; Vw;fdNt mt;tg;NghJ Ntz;Lk; cjtpfs; nra;Jk; mtDk; mt;tg;NghJ FLk;gj;jpypUe;J NghJkhd msTf;F ngw;Wf;nfhz;L FLk;gj;jpypUe;J gphpe;J tho;e;J tUfpwgbahy; Nkw;gb vd; 19/26 https://www.mhc.tn.gov.in/judis A.S.(MD)No.166 of 2018 %j;j Gjy;td; f.ghyRg;gpukzpaDf;Fk; ,e;j capy; %yk;
ehd; vt;tpj Vw;ghLk; nra;J itf;ftpy;iy. MfNt vd;Dila MAs; fhyj;jpw;Fg; gpd; vdJ nrhj;Jfspy; Nkw;gb vd; %j;j Gjy;tdhd f.ghyRg;gpukzpaDf;F vt;tpj ghj;jpaKk; rk;ge;jKk; chpikAk; fpilahJ. mtdJ thhPRfSf;Fk; vt;tpj chpikAk; fpilahJ. vdJ ,uz;lhtJ Gjy;td; f.uh[Nfhghy; gpr;R gpypk;]; vd;w rpdpkh fk;ngdp tpahghuk; itj;J elj;jp NghJkhd trjpfNshL ey;y tsNkhL tho;e;J tUfpwgbahy; mtDf;Fk; ,e;j capy; %yk; ehd; vt;tpj Vw;ghLk; nra;J itf;ftpy;iy. MfNt mtDf;Fk; vd; fhyj;jpw;Fg; gpd; ,jd; jgrpy; nrhj;jpy; vt;tpj ghj;jpaKk; rk;ge;jKk; chpikAk; gpd; njhlh;r;rpAk; fpilahJ. vdJ MAs; fhyj;jpw;Fg; gpd; ,jd; jgrpy; fz;l nrhj;ij vd; Gjy;th;fspy; f.Nr\d;(1) f.fpU\;zd;(2) [p.ehuhazd;(3) Mfpa ,th;fs; %tUk; kl;Lk; $l;lhfTk; rh;tRje;jpukhfTk; mile;J vy;yhtpjkhd chpikfSld; rh;tRje;jpu ,\;l tpepNahf ghj;jpakhf Mz;lDgtpj;Jf; nfhs;s Ntz;baJ.”
32. As rightly pointed out by the learned counsel appearing for the respondents 2 to 9, the plaintiff has not disputed the above reasons advanced by the executant Meenakshi Ammal for excluding the plaintiff from inheritant the suit properties.
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33. Now coming to the items 2 and 3 of the suit properties, admittedly, those two items were subsequently added. The learned trial Judge, in his judgment, has observed that while going through the case records, a Will dated 09.06.2003 was found as if, the same was executed by Meenakshi Ammal in favour of the seventh defendant in respect of the third item of the suit properties, that the seventh defendant had remained ex-parte originally, that no notice was sent to the seventh defendant, after amending the plaint with respect to adding the items 2 and 3 and that notice was ordered to the seventh defendant and in pursuance of the same, he entered into appearance and filed his written statement.
34. It is pertinent to note that the seventh defendant in his written statement has nowhere whispered about the Will dated 09.06.2003, but on the other hand, he claimed the properties on the basis of the Will under Ex.X.1.
35. It is nobody's case that the said Meenakshi Ammal had executed a second Will dated 09.06.2003 bequeathing the third item of the suit properties to the seventh defendant, but the defendants 6 to 8 have claimed right over the third item of the suit properties only on the basis of Ex.X.1-Will. 21/26 https://www.mhc.tn.gov.in/judis A.S.(MD)No.166 of 2018
36. No doubt, as rightly contended by the learned counsel appearing for the respondents 2 to 9, in Ex.X.1-Will, the testator Meenakshi Ammal had specifically stated that the other properties owned by her, which are left out in Ex.X.1-Will, shall be taken by the defendants 6 to 8. It is necessary to refer the recitals in Ex.X.1 hereunder:-
“,jpy; nrhy;y tpl;Lg;NghdJk; vd; MAs;
fhyj;jpw;Fg;gpd; vdf;F nrhe;jkhdjhf ,Uf;ff;$baJkhd
vd;Dila midj;J ,Ug;G nghWg;;GfisAk; mjhtJ vy;yh cilikfisAk; (mirAk;> mirah nrhj;Jf;fisAk;
nuhf;fq;fs; tu Ntz;ba njhiffs; Nghd;w vy;yhtw;iwAk;) vd; MAs; fhyj;jpw;Fg; gpd; vd; Fkhuh;fspy; f.Nr\d;(1) f.fpU\;zd;(2) [p.ehuhazd;(3) Mfpath;fs; kl;Lk; $l;lhfTk; rh;tRje;jpukhfTk; mile;J vLj;Jf; nfhs;s Ntz;baJ. NtW vtUf;Fk; chpik fpilahJ.”
37. Considering the above, the finding of the trial Court that the third item of the suit properties belongs to the defendants 6 to 8 cannot also be found fault with. Regarding the second item of the suit properties i.e., jewels and silver articles, as rightly observed by the learned trial Judge, the description of the properties is very vague and bald. No doubt, D.W.1-sixth defendant would 22/26 https://www.mhc.tn.gov.in/judis A.S.(MD)No.166 of 2018 say that some of the jewels were sold to meet out the medical expenses of their mother and father and that subsequently, sisters have taken the remaining articles.
38. As already pointed out, though the suit was filed on 29.08.2011, the second item of the suit properties was added subsequently in the year 2016 and the plaintiff has not offered any reason or explanation for not including the second item of the suit properties in the original plaint. Even assuming for arguments sake that the second item of the suit properties is available, taking note of the specific recital found in Ex.X.1-Will, the defendants 6 to 8 are entitled for all the remaining properties, which includes moveable and immovable owned by the said Meenakshi Ammal.
39. Considering the above, this Court is in entire agreement with the findings and the consequent decision of the trial Court that the plaintiff is not entitled for partition in respect of the suit properties. Hence, this Court concludes that the above appeal is devoid of merits and the same is liable to be dismissed. Considering the other facts and circumstances of the case, this Court further decides that the parties are to be directed to bear their own costs. 23/26 https://www.mhc.tn.gov.in/judis A.S.(MD)No.166 of 2018
40. In the result, this Appeal Suit is dismissed. Parties are directed to bear their own costs. Consequently, connected Miscellaneous Petition is closed.
23.11.2022 Index :yes/No Internet:yes/No csm 24/26 https://www.mhc.tn.gov.in/judis A.S.(MD)No.166 of 2018 25/26 https://www.mhc.tn.gov.in/judis A.S.(MD)No.166 of 2018 K.MURALI SHANKAR,J.
csm A.S.(MD)No.166 of 2018 and C.M.P.(MD)No.10139 of 2018 23.11.2022 26/26 https://www.mhc.tn.gov.in/judis