Madras High Court
Leela vs Muruganantham
Author: R.Tharani
Bench: R. Tharani
A.S.No.368 of 2002
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 03.07.2019
DELIVERED ON : 15.11.2019
CORAM
THE HONOURABLE MRS. JUSTICE R. THARANI
A.S.No.368 of 2002
1.Leela
2.Sivakumar
3.Mageshwaran (died)
(first appellant is recorded as LR of
the deceased third appellant vide
Court order, dated 29.10.2013) .. Appellants/Defendants 1 to 3
Vs.
1.Muruganantham
2.Ganesha Murthy
3.Kannan
4.Rajammal
5.Mahalakshmi ... Respondents/Plaintiffs
6.M.Gurusamy Nadar
7.Abdul Rahaman
8.Mohamed Husan
9.Mohamed Ibrahim
10.Jothi All Ameen
11.Sakthiammal
http://www.judis.nic.in
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A.S.No.368 of 2002
12.M.Muthiya
13.Ashraf Ali
14.M.Chidambaram .. Respondents/Defendants 4 to 12
Prayer : This Appeal Suit is filed under Section 96 of the Civil Procedure Code,
against the judgment and decree passed in O.S.No.142 of 1992, dated 27.09.2001 on
the file of the Additional Sub-Court, Tenkasi.
For Appellants : Mr.P.Thiagarajan
For R1,R2, R4 & R5 : Mr.V.Radhavachari
For R3 : No appearance
R6 to R12 : Given up
R13 & R14 : Died
JUDGMENT
This appeal is preferred against the judgment and decree passed by the learned Additional Subordinate Judge, Tenkasi made in O.S.No.142 of 1992, dated 27.09.2001.
2.The appellants are the defendants 1 to 3 in the suit. The respondents 1 to 5 are the plaintiffs in the suit. The respondents 6 to 14 are the defendants 4 to 12 in the suit. The relief against the respondents 6 to 12 was given up by the appellants.
3.The respondents 1 to 5, who are the plaintiffs in the suit, filed a suit for http://www.judis.nic.in 2/21 A.S.No.368 of 2002 partition and for allotment of 5/7th share in the suit properties. The trial Court decreed the suit. Against which, the defendants 1 to 3/ appellants herein preferred this first appeal.
4.The case of the plaintiffs in the suit is as follows:
The suit properties belong to late Balasubramaniya Thanthiriyar. As per the partition, dated 04.12.1989, the properties in item Nos.1 to 22, were allotted to the share of Balasubramaniya Thanthiriyar and the plaintiffs. No.23, Tractor was purchased by Balasubramaniya Thanthiriyar. All the debts allotted to the share of Balasubramaniya Thanthiriyar were settled. The said Balasubramaniya Thanthiriyar, died on 28.11.1991. The fourth plaintiff is the first wife of Balasubramaniya Thanthiriyar. The plaintiffs 1 to 3 are the sons of Balasubramaniya Thanthiriyar. The fifth plaintiff is the daughter of the fourth plaintiff. The first defendant is the second wife of Balasubramaniya Thanthiriyar and the second and third defendants are the sons of the first defendant. The marriage between Balasubramaniya Thanthiriyar and the first defendant is invalid and the first defendant is only the illegitimate wife and the second and third defendants are also illegitimate sons.
Each of the plaintiff is having a right of 1/7th share in the properties.
Balasubramaniya Thanthiriyar and the defendants 2 and 3 are entitled to 1/7th share in the suit properties and the first defendant has no right over the properties.
5.First item of the suit properties are commercial buildings and the http://www.judis.nic.in 3/21 A.S.No.368 of 2002 defendants 4 to 12 are the tenants. The defendants 1 to 3 tried to get the rent and tried to withdraw the Bank deposits. After notice, the defendants 4 to 12 are depositing the rent before the Rent Controller, Thenkasi, in R.C.O.P.No.2 to 10 of 2012. The plaintiffs and the defendants 2 and 3 are enjoying the coconuts from the suit item Nos.18 to 21. From 23.02.1992, the second and third defendants are also enjoying the fruits of the coconut farm and they are trying to get the entire yield from the suit properties. The defendants 1 to 3 are trying to create Encumbrances over the suit properties. The alleged Will said to have been written by Balasubramaniya Thanthiriyar is a fraudulent document and the plaintiffs are entitled to 5/7th share of the suit properties and the plaintiffs reserve their right over the Bank deposits.
6.The substance of the written statement filed by the defendants is as follows:
The defendants 2 and 3 are the legitimate children of Balasubramaniya Thanthiriyar. The plaintiffs 1 to 3 harassed the father/Balasubramaniya Thanthiriyar and they assaulted him for getting a share in the properties. Only out of harassment, the partition deed, dated 04.12.1989, was executed. The plaintiffs cannot claim any right over the properties on the basis of the partition deed. The first schedule property was allotted to the share of Balasubramaniya Thanthiriyar and the second schedule property was allotted to the share of plaintiffs 1 to 3 and the third schedule property was allotted to the share of fourth plaintiff and the fourth schedule http://www.judis.nic.in 4/21 A.S.No.368 of 2002 property was allotted to the share of the fifth defendant. The plaintiffs left the family with their share of the properties. Plaintiffs have no right over the first schedule property. The first schedule property belongs to Balasubramaniya Thanthiriyar and the second and third defendants. After the demise of Balasubramaniya Thanthiriyar only the second and third defendants are entitled for the first schedule property. Balasubramaniya Thanthiriyar executed an unregistered Will on 06.04.1990, the share allotted to Balasubramaniya Thanthiriyar was enjoyed by the defendants 1 to 3. Balasubramaniya Thanthiriyar filed a suit against the plaintiffs 1 to 3 before the District Munsif, Thenkasi, in O.S.No.504 of 1986, he has lodged several complaints before the police against the plaintiffs 1 to 3 and the suit properties 23 items never belong to the plaintiffs and hence, the suit has to be dismissed.
7.The trial Court, framed the following issues:
(i)whether the plaintiffs are entitled to a share in the first schedule of the properties ?
(ii)whether the Will, dated 06.04.1990 is valid?
(iii)whether the plaintiffs and defendants 2 and 3 are in joint enjoyment of the suit properties ?
(iv)whether the plaintiffs are entitled to 5/7th share in the property ?
(v)what are the reliefs available to the plaintiffs ?
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8.Before the trial Court, on the side of the plaintiffs, P.W. 1 was examined and Ex.A.1 was marked. On the side of the defendants, D.W.1 and D.W.2 were examined and Ex.B.1 and Ex.B.2 were marked.
9.The trial Court, after considering the documents and oral evidence, decreed the suit. Against which, the defendants 1 to 3/ appellants herein preferred this first Appeal.
10.In the grounds of appeal, it is stated that the trial Court has failed to understand the significance of Ex.A.1. Ex.A.1 clearly reveals that there was no joint family consisting of the father and the plaintiffs and the plaintiffs have no share in the properties allotted to their father.
11.The lower Court accepted that the defendants 2 and 3 are the legal heirs of deceased Balasubramaniya Thanthiriyar under Section 16 of the Hindu Succession Act, but, the trial Court failed to consider that the defendants 2 and 3 constituted an undivided Hindu joint Family with their father and the undivided sons take the share of the father in preference to the divided sons. The explanation 2 of Section 6 of the Hindu Succession Act reiterates the legal position and the plaintiffs cannot invoke Section 8 of the Hindu Succession Act, in view of Section 6 of the said Act. The trial Court failed to attache due importance to the Will and the Will / Ex.B. http://www.judis.nic.in 6/21 A.S.No.368 of 2002 2, was executed in the presence of a Notary Public. The trial Court failed to consider that there is no possibility for joint enjoyment of the suit properties by the plaintiffs and the defendants.
12.On the basis of the said grounds of appeal, this Court framed the following issues:
(i)whether the Will, dated 06.04.1990, is valid ?
(ii)whether the respondents are entitled for 5/7th share in the suit properties ?
(iii)whether the appeal is to be allowed ?
Issue No.(i):
13.The suit properties belong to Balasubramaniya Thanthiriyar. The plaintiffs are the legal heirs of Balasubramaniya Thanthiriyar. The first defendant is the second wife of the Balasubramaniya Thanthiriyar and the defendants 2 and 3 are the sons of the first defendant and Balasubramaniya Thanthiriyar.
14.On the side of the appellants, it is stated that the properties are allotted to the share of the father Balasubramaniya Thanthiriyar in the family partition and the appellants 2 and 3 constituted Hindu undivided family along with their father. It is stated that the appellants are entitled to the property and that the plaintiffs are separated from the family and they have not part in the undivided joint http://www.judis.nic.in 7/21 A.S.No.368 of 2002 family consisting of the father and the appellants.
15.On the side of the appellants, it is further stated that the father executed a Will dated 06.04.1990 with regard to the suit properties and that by virtue of the Will, the appellants alone are entitled for the property and that the trial Court wrongly concluded that the plaintiffs are having share in the suit properties.
16.On the side of the respondents, it is stated that the suit properties are the ancestral properties of the plaintiffs and some of the properties are purchased in the name of the plaintiffs and Balasubramaniya Thanthiriyar and the plaintiffs partitioned the properties on 04.12.1989 and that the suit properties are described as item 1 in the partition deed. The partition deed was marked as Ex.A1.
17.On the side of the appellants/defendants, it is stated that the plaintiffs were allotted 96 items of the properties as their share through Exs.A1 partition deed and that after the partition, the properties in the name of Balasubramaniya Thanthiriyar becomes his absolute property and he bequeathed the properties in the name of the defendants through a Will, dated 06.04.2019. It is stated that the plaintiffs assaulted Balasubramaniya Thanthiriyar and that Balasubramaniya Thanthiriyar was forced to file a suit against the plaintiffs. The judgment and decree passed in O.S.No.504 of 1986 dated 24.12.1986 was marked as Ex.B1. The Will dated http://www.judis.nic.in 8/21 A.S.No.368 of 2002 06.04.2019 was marked as Ex.B2.
18.On the side of the appellants, it is stated that Balasubramaniya Thanthiriyar executed a Will relating to 28 items of the properties and that the notary public has signed the Will. The Will mentioned about the mental and physical status of the executor of the Will. As per Section 16 of the Indian Evidence Act, one of the attestor is to be examined. The defendants examined two witness and the Will is properly proved.
19.On the side of the appellants, it is stated that the purchase of stamp papers at Tenkasi and execution of Will at Madurai cannot be a reasonable cause to reject the Will. The Trial Court wrongly decided that the first defendant has actively participated in the execution of the Will and only due to her instigation, the Will was created. It is further stated that purchasing stamp papers in the name of the first defendant cannot be a ground to deny the genuineness of the Will. Balasubramaniya Thanthiriyar executed the Will at Madurai when he came down to Madurai for treatment and since he is a afraid of the plaintiffs, he executed the Will at Madurai.
20.On the side of the appellant, it is stated that the enmity between Balasubramaniya Thanthiriyar and the plaintiffs was proved by way of Ex.B1. The learned counsel for the appellants would rely upon the judgment passed by this Court in the case of Gnanasoundar v. Chinammal and 8 others, reported in 2000 – 2 l.w. http://www.judis.nic.in 9/21 A.S.No.368 of 2002 658, which reads as follows:
“No hard and fast or inflexible rules can be laid down for appreciation of evidence – strained relationship found to have existed between the testator and his wife (appellant) and the sons (plaintiffs – respondents).
Held high Court will be justified in second appeal for holding that the Will is true and genuine and in reversing judgment of lower appellate Court, and restoring the judgment of trial Court.”
21.On the side of the respondents, it is stated that the Will executed in a far away place from where the testator used to reside and the attesting witness not known to the testator are suspicion circumstance to disprove the Will. It is stated that the Will is stated to have been executed at Madurai whereas the testator's residence was at Tenkasi and that the evidence of D.W.1 and D.W.2 was that D.W.1 was not present at Madurai and the evidence of D.W.1 was that she was not aware that her husband was going to execute a Will at Madurai and that the stamp papers were purchased in the name of the first defendant at Tenkasi and these circumstance creates suspicion regarding the execution of the Will.
22.In support of his contention, the judgment passed by the Hon'ble Supreme Court in the case of Baljinder Singh v. Rattan Singh reported in (2008) 16 SUPREME COURT CASES 785, which reads as follows:
http://www.judis.nic.in 10/21 A.S.No.368 of 2002 “Will – Genuineness – question of fact - suspicious circumstance – Will executed at a place different from the place where testator used to stay in connection with litigation – Attesting witness not known to testator – no reference in the will of name of his own son and the land claimed to have already been given to him – Courts below findings that Will was surrounded by suspicious circumstances – held, no interference called for.”
23.On the side of the appellants, it is stated that the evidence of D.W.2 as to the variations between the signature in Exs.A1 and B2 is not acceptable as D.W.2 is not an expert. There is only a micro difference in the initial and the same is negligible and the same is insufficient to discredit the Will. In support of his contention, the judgment passed by the Hon'ble Supreme Court in the case of Pentakota Satyanarayana and others v. Pentakota Setharatnam and others reported in (2005) 8 Supreme Court Cases 67, which reads as follows:
“It is settled by a catena of decisions that any and every circumstances is not a suspicious circumstance. Even in a case where active participation and execution of the Will by the propounders/beneficiaries was there, it has been held that by itself is not sufficient to create any doubt either about the testamentary capacity or the genuineness of the Will.”
24.On the side of the respondents, it is stated that the Court is having the power to peruse the document and the appellants are wrong in stating that the trial http://www.judis.nic.in 11/21 A.S.No.368 of 2002 Court did not apply the judicial mind in comparing the documents. D.W.2 had admitted in his cross examination, that there are variations found in the signatures in Exs.A1 and B2. The learned counsel for the respondents would rely upon the judgment passed by this Court in the case of Arul Jothi and Co., and 4 others v. Ari Shanmugha Trading Co., reported in 1998 (1) CTC 432, which reads as follows:
“Comparison of signature with admitted signature – Power of Court – dealings between partnership firm and plaintiff – suit filed on basis of acknowledgement of liability by one partner – partner disputing his signature in document acknowledging liability – lower Courts compared disputed signatures with admitted signatures to hold that acknowledgement letter was signed by one partner – such comparison by court is valid and correct.”
25.On the side of the appellants, it is stated that reply statement was not filed by the plaintiff disputing the signature in the Will. Only when the signature was questioned, the defendants has to examine the attestor of the Will and that the plaintiffs filed a petition for sending the will for hand writing expert opinion but later he withdraw the same. It is stated that without claiming forgery, the plaintiffs cannot question the validity of the Will. The learned counsel for the appellants rely on the judgment passed by this Court in the case of K.A.Alice v. K.A.Mary (Deceased) and others reported in 2017 – 3 l.W. 88, which reads as follows:
“Plaintiff a spinster was looking after father who left a registered Will – He left behind wife, two daughters, three sons – http://www.judis.nic.in 12/21 A.S.No.368 of 2002 plaintiff given property in exclusion of others, cannot be held to be suspicious circumstance.
No dispute with respect to signature of testator on Will, question of proof of execution does not arise.”
26.On the side of the appellants, it is stated that It is further stated that when no question was raised regarding the signature of the testator in the Will, no proof of execution is necessary and that the Will was proved in accordance with law and that the trial Judge has compared the signature without applying the judicial mind and without stating any reasons, he discorded the Will. In support of his contention, the judgment passed by the Hon'ble Supreme Court Cases in the case of Durga V. Anil Kumar reported in (2005) 11 SUPREME COURT CASES 189, which reads as follows:
“Two witnesses to the will deposing that testator was in sound disposing mind at the time of execution of the Will, that testator had put her thumb impression on the Will after understanding contents thereof and that they (the witnesses) had put their signatures on the Will in the presence of the testator and in the present of each other”
27.On the side of the respondents, it is stated that proof of his Will stand in a higher decree in comparison to the other document. There must be a clear evidence that the contents of the Will were read over to the executor of the Will. It is stated that notary public did not make any endorsement whether the document http://www.judis.nic.in 13/21 A.S.No.368 of 2002 was read over to the executant and that the scribe of the Will is not examined and the Will is not valid.
28.The learned counsel for the respondents would rely upon the judgment passed by the Hon'ble Supreme Court in the case of Dhannulal and others v. Ganeshram and another reported in (2015) 12 Supreme Court Cases 301, which reads as follows:
“Family and Personal laws – Hindu Succession Act, 1956 – Section 30, 15 and schedule – Will – Due execution of and its genuineness – Requirements of – held, execution of a document does not mean mechanical act of signing document or getting it signed, but an intelligent appreciation of contents of document and signing it in token of acceptance of those contents – Proof of a will stands in a higher degree in comparison to other documents – there must be a clear evidence of attesting witnesses or other witnesses that contents of will were read over to executant and he, after admitting same to be correct, puts his signature in presence of witnesses – it is only after executant puts his signature, attesting witnesses shall put their signatures in presence of executant”
26.On the side of the respondents, it is stated that even in the plaint itself, the plaintiffs denied the execution of the Will and pleaded forgery and the contention of the appellant is not maintainable. D.W.2 has deposed that there is http://www.judis.nic.in 14/21 A.S.No.368 of 2002 difference in the signature of Balasubramaniya Thanthiriyar in Exs.A1 and B2. A perusal of the records reveals that in the plaint itself, the plaintiffs denied the execution of the Will and has alleged forgery. Hence, this contention of the appellants regarding the non raising of a dispute regarding the signature is false.
30.On the side of the respondents, it is stated that after the demise of the father, the share of the father is available for partition and that as the first wife is alive, the marriage with the second wife is not valid and that the defendants failed to produce the original Will and that when the stamp paper was purchased in the name of the first defendant at Tenkasi, the necessity to execute the Will at Madurai creates suspicion and that D.W.1 has deposed that at the time of execution of the Will, the testator was suffering from some aliments.
31.On the side of the respondents, it is stated that in Ex.B2 it is stated that the testator was having diabetes and other health ailments and the evidence of D.W. 1 and D.W.2 regarding the health of the testator is contradictory and the Will may not be a free Will.
32.The learned counsel for the respondents would rely upon the judgment passed by the Hon'ble Supreme Court in the case of Prakash Soni v. Deepak Kumar and Ors. Reported in MANU/SC/1184/2017, which reads as follows:
“We find from the records that the condition of the http://www.judis.nic.in 15/21 A.S.No.368 of 2002 testator's mind and body was very feeble and debilitated. The signature of the testator was allegedly taken on the death bed while she was administered drip. The dispositions made in the will may not be result of the testator's free will and mind. In such case, the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator.”
33.On the side of the respondents, it is stated that on the basis of the above said suspicion Ex.B2 cannot be proved as genuine. It is stated that the defendants did not come forward to refer the signature for expert opinion. The burden is not upon the defendants to prove the Will. The withdrawal of the petition for expert opinion by the plaintiffs will not amount to admitting the Will. Even in the plaint itself, the plaintiffs disputed the Will as forged one. Even then the defendants did not take any action to refer the Will for handwriting expert.
34.In support of his contention, the judgment passed by the Hon'ble Supreme Court in the case of Ramesh Verma v. Lajesh Saxena and another reported in (2017) 1 Supreme Court Cases 257, which reads as follows:
“Family and Personal Laws – will – Suspicious http://www.judis.nic.in 16/21 A.S.No.368 of 2002 circumstances and evidence of attesting witnesses turned out to be contradictory – genuineness of will doubted – Will if valid – Determination of”
35.On the side of the respondents, a similar judgment passed by the Hon'ble Supreme Court in the case of Balathandayutham and Ors. v. Ezhilarasan reported in MANU/SC/0256/2010 is cited.
36.A perusal of the records reveals that in the plaint itself, the plaintiffs have raised a point that the Will is not genuine and is a forged one. Hence, the contention of the appellants that the signature in the Will is not disputed is wrong.
When in the plaint itself, there is an allegation of forgery and there is no necessity to dispute the signature of the testator by way of filing a reply statement.
37.It is seen that the notary public did not endorse that the Will was read over to the executor. D.W.1 has deposed that she did not participate in the execution of the Will and she was not aware of the execution of the Will at the time of execution. But the stamp paper for the Will was purchased in the name of the D.W.1 at Tenkasi but the Will was executed at Madurai. The Will was attested by the brother of D.W.1 and D.W.2 is the father-in-law of the brother of the first defendant. He has deposed that the signature in Ex.B2 is different from the signature in Ex.A1 and letter 'I' was inserted in the signature in Balasubramaniya Thanthiriyar in page http://www.judis.nic.in 17/21 A.S.No.368 of 2002 no.4. The contention of the appellants that D.W.2 was threatened by the plaintiffs is not correct. D.W.2 was a relative of D.W.1 and he has not deposed anything regarding the threatening in his deposition. D.W.2 deposed that the signature of notary public was not available in page no.6 of the Will and the registration number of the notary public was not available in the Will. The defendants did not prove that Balasubramaniya Thanthiriyar lodged a complaint against the plaintiffs. D.W.1 has admitted that there was no dispute between the plaintiffs and Balasubramaniya Thanthiriyar till the execution of Ex.A1. The circumstance under which Ex.B1 was filed was not proved by the defendants. There are sufficient circumstance to take a suspicious stand against the execution of the Will.
38.It is seen that there is no criminal case lodged by the father against the plaintiffs 1 to 3 and the defendants did not prove any such complaint. The first defendant, D.W.1 has admitted in her evidence that there was no dispute between the plaintiffs and the Balasubramaniya Thanthiriyar until the execution of Ex.A1 and hence, Ex.B1 cannot be treated as a document against the plaintiffs. When there is no dispute between the plaintiffs and their father, the allegations set out by the defendants is not proved. Hence, it is decided that the defendants failed to prove the genuineness of the Will.
Issue No.(ii):
39.In issue No.(i), it is decided that the Will is not proved. The plaintiffs 1, http://www.judis.nic.in 18/21 A.S.No.368 of 2002 3 and 5 are the children of Balasubramaniya Thanthiriyar and the 4th plaintiff is the first wife of Balasubramaniya Thanthiriyar and they are entitled for a share in the suit properties. The first defendant is the second wife of Balasubramaniya Thanthiriyar and she married him during the lifetime of the first wife and she is not entitled to a share in the property. The defendants 2 and 3 are the children of Balasubramaniya Thanthiriyar through the first defendant. Hence, the plaintiffs 1 to 5 and the defendants 2 and 3 are entitled for 1/7th share each in the suit property.
40.In the above circumstances, it is decided that the respondents are entitled for 5/7th share in the suit properties.
Issue no.(iii):
41.All the issues are decided against the appellants. There is nothing sufficient enough to interfere in the judgment and decree passed by the Court below. This Appeal suit is dismissed and the judgment and decree passed in in O.S.No.142 of 1992, dated 27.09.2001 on the file of the Additional Sub-Court, Tenkasi is hereby confirmed. No Costs.
15.11.2019
Index : Yes/No
Internet : Yes/No
mrn/Ls
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A.S.No.368 of 2002
To
1.The Additional Sub-Judge,
Tenkasi.
2.The Section Office,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
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A.S.No.368 of 2002
R.THARANI, J.
mrn/Ls
A.S.No.368 of 2002
15.11.2019
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