Madras High Court
S.Varadhan vs S.Rathinam (Died) on 3 July, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
S.A.Nos.448 and 638 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 03.07.2025
CORAM:
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Second Appeal Nos. 448 and 638 of 2013
and
M.P.No. 1 of 2013
---
Second Appeal No. 448 of 2013
S.Varadhan .. Appellant
Versus
1. S.Rathinam (Died)
2. S.Tharani
3. G.Radhika
4. G.Vanaroja .. Respondents
[R-1 died, RR-3 & 4 are brought on record as LRs of the deceased R1 vide
Court order dated 03.01.2024 made in C.M.P.Nos.17875, 17868 & 17878 of
2023 in S.A.No. 447 of 2013]
Second Appeal No. 638 of 2013
S.Varadhan .. Appellant
Versus
1. S.Rathinam (Died)
2. S.Tharani
3. G.Radhika
4. G.Vanaroja .. Respondents
1/48
https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm )
S.A.Nos.448 and 638 of 2013
[R-1 died, RR-3 & 4 are brought on record as LRs of the deceased R1 vide
Court order dated 03.01.2024 made in C.M.P.Nos.17864, 17874 & 17869 of
2023 in S.A.No. 638 of 2013]
Prayer in S.A.No.448 of 2011: Second Appeal is filed under Section 100 of
Civil Procedure Code against the judgment and decree dated 11.07.2012
passed in A.S. No. 34 of 2011 and Cross Appeal in A.S.No.34 of 2011 by the
learned Additional Sub Judge, Chengalpet, reversing the judgment and decree
dated 21.10.2011 passed in O.S.No.66 of 2008 by the learned District Munsif-
cum-Judicial Magistrate, Thirukazhukkundram.
Prayer in S.A.No.638 of 2011: Second Appeal is filed under Section 100 of
Civil Procedure Code against the judgment and decree dated 11.07.2012
passed in A.S. No.35 of 2011 by the learned Additional Sub Judge, Chengalpet
confirming the judgment and decree dated 21.10.2011 passed in O.S.No.15 of
2007 by the learned District Munsif-cum-Judicial Magistrate,
Thirukazhukkundram.
For Appellants : Mr. R.S. Mohan
in both appeals
For Respondent 2 : Mr. N. Manokaran
in both cases for Mr. R. Marudhachalamurthy
COMMON JUDGMENT
The Second Appeal No.448 of 2013 has been filed against the judgment and decree dated 11.07.2012 passed in A.S. No. 34 of 2011 and Cross Appeal in A.S.No.34 of 2011 by the learned Additional Sub Judge, Chengalpet, reversing the judgment and decree dated 21.10.2011 passed in O.S.No.66 of 2008 by the learned District Munsif-cum-Judicial Magistrate, Thirukazhukkundram.
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2. The Second Appeal No.638 of 2013 had been filed against the judgment and decree dated 11.07.2012 passed in A.S. No.35 of 2011 by the learned Additional Sub Judge, Chengalpet confirming the judgment and decree dated 21.10.2011 passed in O.S.No.15 of 2007 by the learned District Munsif- cum-Judicial Magistrate, Thirukazhukkundram.
3. The learned Counsel for the Appellant submitted that two suits were filed by S.Varadhan before the learned District Munsif-cum-Judicial Magistrate, Thirukazhukkundram. O.S.No.15 of 2007 was filed seeking permanent injunction against Defendants-1 and 2. O.S.No.66 of 2008 was filed by the same Plaintiff seeking declaration of title to Schedule “A” Property and for consequential injunction against the very same Defendants.
4. The Plaintiffs and the Defendants are descendants of Vedhachala Gramani. The Plaintiff had claimed title to the suit properties in Schedule “A”, based on the Will alleged to have been executed by Vedhachala Gramani, the paternal grand father of the Plaintiff. The Defendants disputed the Will and claimed it to be a forged Will, which was executed in the year 1968. As on the date of the suit, it was a 40 years old Will. During trial, the Plaintiff was 3/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 unable to produce the witnesses to the Will, as all the witnesses had died. The son of the Scribe was examined as P.W-2. Both suits were taken up for trial and by common judgment dated 21.10.2011, the learned District Munsif-cum- Judicial Magistrate, Thirukazhukkundram dismissed the suit in O.S.No. 15 of 2007 and partially decreed the suit in O.S.No. 66 of 2008 by granting decree for permanent injunction only as against properties other than “B” Schedule properties.
5. Aggrieved by the common judgment dated 21.10.2011 in O.S.No.15 of 2007 and O.S.No.66 of 2008, the Plaintiff in both the suits filed A.S.No.34 of 2011 and A.S.No.35 of 2011. The Defendants in both the suits filed Cross Appeal in A.S.No.34 of 2011. The learned Additional Sub Judge, Chengalpet by common judgment dated 11.07.2012 dismissed the Appeals in A.S.No.34 of 2011 and A.S.No.35 of 2011 and allowed the Cross Appeal in A.S.No.34 of 2011 thereby set aside the decree for permanent injunction granted by the learned District Munsif-cum-Judicial Magistrate in O.S.No.66 of 2008 with regard to “A” schedule properties.
6. Aggrieved by the same, the Plaintiff before the learned District Munsif-cum-Judicial Magistrate, Thirukazhukkundram had preferred this 4/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 Second Appeal raising substantial questions of law stating that both the Courts failed to consider the provisions of Indian Evidence Act and Hindu Succession Act regarding the claim of the Plaintiff and committed grave error by dismissing the claim of the Plaintiff.
7. It is the submission of the learned Counsel for the Appellant in Second Appeal (Plaintiff before the trial Court) as the witnesses were not alive, the Plaintiff had attempted to prove the Will as per the provisions of Indian Evidence Act by examining the son of the scribe, who had identified the signature of his father before the trial Court. Still the trial Court observed that the Will had not been proved and dismissed the claim of the Plaintiff.
8. It is the submission of the learned Counsel for the Appellant that both the trial Court as well as the first Appellate Court had committed grave error in ignoring the provision of law particularly regarding the proof of Will. When the Defendants had disputed the Will, it is for the Defendants to disprove the Will. The presumptions are in favour of the Plaintiffs. Still the trial Court rejected the claim of the Plaintiff and the Appellate Court upheld the finding of the trial Court. Therefore, he seeks to set aside the finding of the trial Court as well as the first Appellate Court and to grant declaration of title 5/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 to Schedule “A” property and also consequential injunction. Therefore, the learned counsel for the Appellant contend that the trial Court erred in dismissing the suit and the Appellate Court also confirmed the same. Therefore, the learned Counsel for the Appellant has sought to set aside the judgment and decree dated 11.07.2012 passed in A.S. No. 34 of 2011 and Cross Appeal in A.S.No.34 of 2011 by the learned Additional Sub Judge, Chengalpet, reversing the judgment and decree dated 21.10.2011 passed in O.S.No.66 of 2008 by the learned District Munsif-cum-Judicial Magistrate, Thirukazhukkundram and also sought to set aside the judgment and decree dated 11.07.2012 passed in A.S. No.35 of 2011 by the learned Additional Sub Judge, Chengalpet confirming the judgment and decree dated 21.10.2011 passed in O.S.No.15 of 2007 by the learned District Munsif-cum-Judicial Magistrate, Thirukazhukkundram.
9. In support of his contention, the learned Counsel for the Appellant in the Second Appeal relied on the following decisions:
(i) (2004) 7 SCC 650 in the case of Dalip Singh vs. Mehar Singh Rathee and others the Hon'ble Supreme Court has held as under:
“Civil Procedure Code, 1908 – Or. 2, R. 2 – Condition for applicability – Bar of subsequent suit for the relief which had been omitted in the previsou suit in respect of the same cause of action – Where plea regarding such bar raised, held, Court has to 6/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 ascertain whether cause of action of the previous and subsequent suit was identical – But in absence of proof of identity of cause of action and pleadings, such plea cannot be permitted to be raised.”
(ii) (2010) 10 SCC 141 in the case of Alka Gupta vs. Narender Kumar Gupta the Hon'ble Supreme Court has held as under:
“Civil Procedure Code, 1908 – Or. 2, R. 2 – Bar of second suit under – Determination of applicability of – Questions relevant for – Only question relevant therefor, held, is whether relief claimed in both suits arose from same cause of action – Merits and validity of second claim cannot be considered at this stage – Conduct of Plaintiff is not relevant in determining applicability of said bar.”
(iii) AIR 2015 SC (Supp) 1591 in the case of Inbasegaran and another vs. S. Natarajan (Dead) through L.Rs. the Hon'ble Supreme Court has held as under:
“Civil Procedure Code (5 of 1908) – Or. 2, R. 2 – Bar of suit – Suit filed by Plaintiff for permanent injunction against threat of dispossession from suit property – Subsequent suit by him for specific performance of agreement of sale – Cause of action and reliefs claimed in suits quite distinct – Thus subsequent suit held was not barred under O.2, R.2.”
(iv) AIR 1996 Madras 442 in the case of Ammu Balachandran vs. Mrs. U.T. Joseph (died) and others, this Court has held as under:
“(A) Succession Act (39 of 1925), S. 63 – Will – Suspicious circumstances – Will properly executed and proved before Court – Same, however, not registered – Merely because of that no inference can be drawn against will.”
(v) AIR 2010 Supreme Court 2679 in the case of Dinesh Kumar vs. 7/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 Yusuf Ali the Hon'ble Supreme Court had held as follows:
“24. There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the Courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter. (Vide Jagdish Singh Vs. Nathu Singh, AIR 1992 SC 1604; Smt. Prativa Devi Vs. T.V. Krishnan, (1996) 5 SCC 353; Satya Gupta @Madhu Gupta Vs. Brijesh Kumar, (1998) 6 SCC 423 Ragavendra Kumar Vs. Firm Prem Machinery & Co., AIR 2000 SC 534; and Molar Mal Through Lr. Vs. M/s. Kay Iron Works Pvt. Ltd., AIR 2000 SC 1261).
25. Thus, the law on the subject emerges to the effect that Second Appeal under Section 100 CPC is maintainable basically on a substantial question of law and not on facts. However, if the High Court comes to the conclusion that the findings of fact recorded by the Courts below are perverse being based on no evidence or based on irrelevant material, the appeal can be entertained and it is permissible for the Court to re- appreciate the evidence. The landlord is the best Judge of his need, however, it should be real, genuine and the need may not be a pretext to evict the tenant only for increasing the rent.”
(vi) AIR 2013 Supreme Court 2088 in the case of M.B.Ramesh (D) By LRs vs. K.M.Veeraje Urs (D) by LRs. & others the Hon'ble Supreme Court has held as under:
“(A) Succession Act (39 of 1925), Ss. 63, 64 – Will – Execution – Suspicious circumstances – Testator 40 years of age at time of execution of Will – Describing herself as getting old – Not suspicious circumstances – Such statement depends on perception of author about condition of his/her health.”
10. The learned Counsel for the Respondents submitted his arguments. As per his submissions, as per the averments, the properties belonging to the grandfather of the Plaintiff/Vedhachala Gramani is alleged to have been executed through a Will in favour of the Plaintiff. As per the Plaint, 8/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 the Plaintiff had filed Suit in O.S.No.15 of 2007 seeking permanent injunction against the first and second Defendants to not to create encumbrance in the property. In the written statement filed by the Defendants, they disputed the claim of the Plaintiff. It is the contention of the Defendants in the written statement that the Suit property was orally partitioned between Vedhachala Gramani and Sadaiappa Gramani. The Defendants claim title through sons of Sadaiappa Gramani. The Plaintiff filed second Suit in O.S.No.66 of 2008 claiming declaration of title to schedule 'A' property and recover possession of 'B' schedule property. In that Suit, the Plaintiff claimed that the Plaintiff had given property on lease to the Defendants and the Defendants failed to pay the rent. Therefore, he sought for declaration of title to 'A' Schedule property and recovery of 'B' schedule property along with recovery of lease amount for 'B' schedule property. Both the Suits were taken up for joint trial. In the joint trial, the Plaintiff examined himself as P.W-1 and the witnesses in support of his claim were examined as P.W-2 to P.W-4. It is the submission of the learned Counsel for the Respondents that the Plaintiff failed to prove his case through cogent evidence particularly under Section 68 of the Indian Evidence Act r/w.
Section 63 of the Indian Succession Act. The witnesses examined by the Plaintiff viz., P.W-2 to P.W-4 were the sons of the testator who is alleged to have attested the Will and the scribe of the Will. The sons of the scribe could 9/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 not identify their father's signature. P.W-2 did not come forward to subject himself to cross-examination. Therefore, his evidence was rejected by the learned District Munsif-cum-Judicial Magistrate. The learned Counsel for the Respondents invited the attention of this Court to the deposition of P.W-2 to P.W-4 compiled by him in the Respondent's typed set. It is his further submission that the Plaintiff ought to have filed the death certificate of the scribe as well as the witnesses to the Will to prove the claim that the scribe and witnesses to the Will were not alive on the date of trial. Also, he ought to have filed the Legal Heir Certificate of the witness who claims to be the son of the scribe. He had not done so. Therefore, Sections 68 and 69 of the Indian Evidence Act had not been followed in this case. The learned District Munsif- cum-Judicial Magistrate had rejected the claim of the Plaintiff in both the Suits and both the Suits were dismissed. The Suit in O.S.No.66 of 2008 was dismissed regarding the prayer for declaration of title to schedule 'A' property, recovery of possession of 'B' schedule property and the arrears of rent for 'B' schedule property. But, the learned District Munsif-cum-Judicial Magistrate had granted decree for permanent injunction based on the pleadings in the written statement of the Defendants and the reply notice prior to the filing of the Suit.
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11. The learned Counsel for the Respondents attacked the Judgment of the learned District Munsif-cum-Judicial Magistrate which is confirmed by the learned Appellate Judge. The cross Appeal was allowed by the learned Appellate Judge. He attacked the Judgment of the trial Court based on the following objections:
(i) The second Suit is attracted by Order II Rule 2 of the Civil Procedure Code.
(ii) The Will had not been proved as per the Provisions of the Indian Evidence Act and Indian Succession Act.
(iii) The Plaintiff failed to prove his claim in the Plaint pleading through cogent evidence. The learned District Munsif-cum-Judicial Magistrate had granted decree for permanent injunction only for 'A' schedule property, based on the burden of proof and by picking hole in evidence of the Defendants.
12. Therefore, he attacks the Judgment of the learned District Munsif- cum-Judicial Magistrate in partly granting a decree for permanent injunction. It is the further contention of the learned counsel of the Respondents that the cross-appeal filed by the Defendants was allowed by the first Appellate Court and both the Appeals filed by the Plaintiff were dismissed. Therefore, there cannot be a ground to raise any substantial questions of law in the concurrent finding.
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13. The learned Counsel for the Respondents relied on the following rulings:
(i) (2014) 2 SCC 269 in the case of Union of India vs. Vasavi Co-
operative Housing Society Limited and others, the Hon'ble Supreme Court has held as under:
“A. Specific Relief Act, 1963 – Ss. 34 and 5 – Suit for declaration of title and possession – Burden of proof in case of – Reiterated, burden is on Plaintiff to establish its case, irrespective of whether Defendants prove their case or not – In absesnce of establishment of its own title, the Plaintiff must be non-suited even if title set up by Defendants is found against them – Weakness of case set up by Defendatns cannot be a ground to grant relief to Plaintiff – Evidence Act, 1872, Ss. 101 and 103.”
(ii) (2013) 1 SCC 625 in the case of Virgo Industries (Eng.) (P) Ltd., vs. Venturetech Solutions (P) Ltd., the Hon'ble Supreme Court had observed as follows:
“17. The learned Single Judge of the High Court had considered, and very rightly, to be bound to follow an earlier Division Bench order in R. Vimalchand v. Ramalingam [(2002) 3 MLJ 177] holding that the provisions of Order 2 Rule 2 CPC would be applicable only when the first suit is disposed of. As in the present case the second set of suits were filed during the pendency of the earlier suits, it was held, on the ratio of the aforesaid decision of the Division Bench of the High Court, that the provisions of Order 2 Rule 2(3) will not be attracted. Judicial discipline required the learned Single Judge of the High Court to come to the aforesaid conclusion. However, we are unable to agree with the same in view of the object behind the enactment of the provisions of Order 2 Rule 2 CPC as already discussed by us, namely, that Order 2 Rule 2 CPC seeks to avoid multiplicity of litigations on the same cause of action. If that is the true object of the law, on which we do not 12/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 entertain any doubt, the same would not stand fully subserved by holding that the provisions of Order 2 Rule 2 CPC will apply only if the first suit is disposed of and not in a situation where the second suit has been filed during the pendency of the first suit. Rather, Order 2 Rule 2 CPC will apply to both the aforesaid situations. Though direct judicial pronouncements on the issue are somewhat scarce, we find that a similar view had been taken in a decision of the High Court at Allahabad in Murti v. Bhola Ram [ILR (1894) 16 All 165] and by the Bombay High Court in Krishnaji Ramchandra v. Raghunath Shankar [AIR 1954 Bom 125] .”
(iii) (2014) 6 SCC 424 in the case of Coffee Board vs. Ramesh Exports Privage Limited the Hon'ble Supreme Court had observed as under:
“21. In the present factual matrix both the reliefs are being claimed separately in the two concerned suits. This scenario negates the principle of Order 2, Rule 2 in absence of any explanation as to why the respondent failed to claim the relief by way of a single suit when the cause of action was the same in the both. Therefore, we are of the opinion that the Trial Court in its judgment dated March 17, 2005 correctly held that in light of O.S. No. 3150 of 1985 the present suit is barred under Order 2 Rule 2 of the Code.”
(iv) 2023 SCC OnLine SC 255 in the case of Ashutosh Samanta (D) by Lrs and others vs. SM. Ranjan Bala Dasi and others the Hon'ble Supreme Court has observed as under:
“19. It is therefore clear that in the event where attesting witnesses may have died, or cannot be found, the propounder is not helpless, as Section 69 of the Evidence Act, 1872 is applicable.”
(v) (2008) 14 SCC 754 in the case of Babu Singh vs. Ram Sahai the Hon'ble Supreme Court has held as under:
“A. Evidence Act, 1872- S. 68 - Proof of execution of will - To prove 13/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 due execution of will, at least one attesting witness required to be examined, though this does not rule out examining more than one attesting witness - Attestation must be in conformity with S. 3 of Transfer of Property Act - Requirements of S. 63(1)(C) of Succession Act, 1925 must also be complied with - When genuineness of the will is questioned it is duty of propounder to dispel the surrounding suspicious circumstances, if any - Will created bequeathing right, title and interest in the property in favour of respondent - One of the two attesting witnesses already died and the other one did not appear for being examined to prove attestation – Trial Court held that execution of the will not proved – First appeal thereagainst allowed on the finding that respondent-Plaintiff's Counsel as well as Plaintiff himself stated that the second attesting witness had joined hands with opposite party and had also intentionally left for a foreign country and as such he could not be examined - Second appeal dismissed by High Court - But no steps shown to have been taken to compel his appearance as a witness - Statement of Counsel also cannot be accepted as evidence - In the circumstances held, execution of the will not proved - Succession Act, 1925 S. 63(1)(C) - Transfer of Property Act, 1882, S. 3”
(vi) Manu/TN/2920/2022 in the case of Malliga v. P. Kumaran this Court had observed as under:
“13. Insofar the Will is concerned, the Evidence Act prescribes the manner in which a Will should be proved under Section 68 of the Act. A person who wants to rely upon a Will has to necessarily prove the Will only in accordance with Section 68 of the Act. In the absence of attesting witness, the Will has to be proved in accordance with Section 69 and 70 of the Evidence Act. Section 63 of the Indian Succession Act provides for the manner in which a Will should be executed by the testator and the requirement of attesting witnesses.
14. Section 68 of the Evidence Act only provides for an exception under the proviso to the said Section wherein it is specifically provided that it shall not be necessary to call an attesting witness in proof of execution of any document, “not being a Will”, which has been registered in accordance with the provisions of the Indian Registration Act, unless its execution by https://www.mhc.tn.gov.in/judis the person by whom it purports to have been executed is specifically denied. It is clear from this proviso that the exception is available for any other documents other than 14/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 a Will. In other words, a Will has to be proved only in accordance with Section 68 to 70 of the Indian Evidence Act.
20. The law was once and for all settled by the Hon'ble Supreme Court in [Ramesh Verma (Dead) Through Legal representatives Vs.Lajesh Saxena (dead) by legal representatives and another] reported in 2017 1 SCC 257. The relevant portion in the judgement is extracted hereunder :-
13. A Will like any other document is to be proved in terms of the provisions of Section 68 of the Indian Succession Act and the Evidence Act. The propounder of the Will is called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement.
21. The above judgement in no uncertain terms laid down the law to the effect that a Will shall not be used as evidence until it is proved in the manner prescribed under Section 68 of the Evidence Act and this position cannot be diluted even if the opposite party has not specifically denied the execution of the Will.
22. It is also relevant to take note of the judgment of the Hon'ble Supreme Court in [Jagadish Chand Sharma Vs. Narain Singh Saini (Dead) through Legal representatives and others] in 2015 8 SCC 615. The relevant portions in the judgement is extracted hereunder :-
21. As would be evident from the contents of Section 63 of the Act that to execute the Will as contemplated therein, the testator would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further the signature or mark of the testator or the signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as Will. The Section further mandates that the Will shall have to be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testator, or has received from the testator, personal acknowledgment of a signature or mark, or the 15/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 signature of such other persons and that each of the witnesses has signed the Will in the presence of the testator. It is, however, clarified that it would not be necessary that more than one witness be present at the same time and that no particular form of attestation would be necessary.
22. It cannot be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of a Will under the Act are mandatory in nature, so much so, that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property.
22.1. In the evidentiary context Section 68 of the Act 1872 enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of Court and capable of giving evidence proves its execution.
The proviso attached to this Section relaxes this requirement in case of a document, not being a Will, but has been registered in accordance with the provisions of the Indian Registration Act 1908 unless its execution by the person by whom it purports to have been executed, is specifically denied.
23. Even in the above judgement, the Hon'ble Supreme Court has reiterated the mandatory nature of Section 68 of the Evidence Act and has categorically held that the proviso to the said section provides for a relaxation of the requirement only for a document other than a Will.
24. It will also be relevant to take note of the subsequent Division Bench judgement of the Kerala High Court in [Sarada Vs.Radhamani] reported in 2017 2 KLT 327.
1. A Will required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution if he be alive and subject to the process of Court. Does this statutory mandate apply even while the execution of the Will by the person by whom it purports to have been executed is not specifically denied or expressly admitted? This is the precise question referred to the Division Bench by the learned single Judge for consideration in these Regular Second Appeals arising out of a preliminary decree for partition.
14. It is beyond cavil that a Will declaring the intention of a testator shall be attested by two or more witnesses under Section 63(1)(c) of the Indian 16/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 Succession Act, 1825 (See: Babu Singh v. Ram Sahai (2008) 14 SCC
754).
Therefore a Will required by law to be attested shall not be used as evidence until one attesting witness at least (if he be alive) has been called for proving its execution. The above is the mandate contained in the main body of Section 68 of the Act and no exception has been carved out for a Will which is not specifically disputed or expressly admitted.
25. In the above judgement, the Division Bench of the Kerala High Court had fallen in line with the view expressed by the Hon'ble Supreme Court and in fact, at Paragraph 19 of the judgment, the Kerala High Court has declared the judgement in the earlier Division Bench in Thayyullathil Kunhi Kannan case referred supra as perincuriam.
26. The latest judgement on this issue from this Court was decided in [P.Radha Vs. Irudayadoss and others] reported in 2022 SCC online Mad 886 and it has been held as follows :-
24. The Defendants have not examined any attestor of Exhibit A.4-Will in order to comply with the provisions of Section 68 of the Evidence Act.
The Defendants have contended that when the Plaintiff himself has admitted the execution of the Will, the question of invoking Section 68 of the Evidence Act with regard to formal proof of the document is not necessary. However, I am not in agreement with the said contention in view of the judgments of the Hon'ble Supreme Court and our High Court.
25. The Hon'ble Supreme Court in a judgment reported in (2017) 1 SCC 257 in para 13 as held as follows:
“13. A will like any other document is to be proved in terms of the provisions of Section 68 of the Evidence Act and the Succession Act, 1925. The propounder of the will is called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement.” 17/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013
27. It is clear from the above judgement that the view expressed by the Hon'ble Supreme Court to the extent that Section 68 of the Evidence Act is Mandatory for proof of Will, has been reiterated and the same view has to be once again reiterated in this case also.
28. The above narrative leads to the unescapable conclusion that both the Courts below erred in acting upon Ex.A6 Will without the same being proved as per the mandate prescribed under the Evidence Act and both the Courts below erroneously acted upon the Will merely based on the stand taken by the Defendant. The Additional substantial question of law is answered accordingly in favour of the appellant.”
(vii) (2021) 11 SCC 277 in the case of Shivakumar vs. Sharanabasappa the Hon'ble Supreme Court had observed as under:
“A. Family and Personal Laws – Will – Validity of will – Proof and satisfaction of Court – Principles governing adjudicatory process concerning proof of will – Law summarised.”
14. At the time of admission, this Court had framed the following substantial questions of law:-
i) Whether the Courts below was right when it rejected the Will which was 40 years old and the presumption under the Indian Evidence Act was in favour of the Plaintiff as none of the witnesses to the Will are alive and not available on the date of trial?
ii) Whether the presumption regarding more than 30 years old document is in favour of the Plaintiff ought to have been considered by the trial Court?
iii) Whether the trial Court erred in not considering the provisions of Indian Evidence Act and Indian Succession Act regarding the Will and dismissing the claim of the Plaintiff. The Appellant who was Plaintiff before the trial Court raising the 18/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 above two substantial questions of law.
15. Heard the learned Counsel for the Appellant Thiru.R.S.Mohan and the learned Counsel for the Respondents Mr.N.Manokaran for Mr.R.Marudhachalamurthy.
16. Perused the typed set containing plaint, written statement, judgment dated 11.07.2012 passed in A.S. Nos. 34 and 35 of 2011 by the learned Additional Sub Judge, Chengalpet, judgment dated 21.10.2011 passed in O.S.No.15 of 2007 and O.S.No.66 of 2008 by the learned District Munsif- cum-Judicial Magistrate, Thirukazhukkundram.
17. It is useful to extract Sections 68, 69 and 90 of Indian Evidence Act, 1872 which are as follows:
“68. Proof of execution of document required by law to be attested.
If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence :[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] [Inserted by Act 31 of 1926, Section 2.] 19/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013
69. Proof where no attesting witness found.
If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.
90. Presumption as to documents thirty years old.
Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purport to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.Explanation. - Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.This explanation applies also to section 81.Illustrations(a)A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land, showing his titles to it. The custody is proper.(b)A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper.(c)A, a connection of B, produces deeds relating to lands in B's possession, which were deposited with him by B for safe custody. The custody is proper.”
18. It is also useful to extract Section 63 Indian Succession Act, 1925 which reads as under:
“63. Execution of unprivileged Wills.—Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:—(a)The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.(b)The signature or mark of the testator, or the signature of the person signing for him, shall be so 20/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 placed that it shall appear that it was intended thereby to give effect to the writing as a Will.(c)The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
19. The submission of the learned Counsel for the Respondents is that the subsequent suit O.S.No.66 of 2008 is not maintainable since both the suits had been filed by the same Plaintiff i.e., the Appellant herein. The cause of action in both suits are as follows:
“Cause of action in O.S.No.15 of 2007:
16.The cause of action for the suit arose, on 17.06.1968, the date of execution of Last Will and Testament by Vedachala Gramani to Plaintiff, 1969, when Vedachala Gramani leaving the Plaintiff as his legal representative, in 1984, upto when Plaintiff's father was taking care of the entire 2.57 Acre representing the Plaintiff as he was a minor then, and when he attained majority and from when he has been in possession of the same, in 1985, when the middle portion of S.No.49/3 was leased out to Sadayappa Gramani at this request, and from when he was giving 1/3 warm to Plaintiff, in 1995, when Sadayappan died, and from when the Defendants continued to pay the 1/3 warm to Plaintiff, 2005, from when the Defendants refused to pay warm, when the Plaintiff came to apply EC and patt? copy and shocked to know about the sub division and bogus patta for S.No.49/3 B to Sadayappan, on 16.11.06 the date of notice by Plaintiff revoking the lease and on 07.12.2006, the date of reply, containing false allegations, on 31.01.2007, the date of assault by Defendant 3 week of February, 2007, from when the Defendants bring land-brokers to alienate the suit lands, without any right, title thereof, and on subsequent dates de-die-in-dium at Irumbulichari village, Nerumbur Frika, Thirukalukundram Taluk, 21/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 within the jurisdiction of this Hon'ble Court.
Cause of action in O.S.No.66 of 2008:
13. The cause of action for the Suit arose, on 17.06.1968, when Vedachala Gramani executed his Last Will and Testament in favour of the Plaintiff, minor then, represented by his father, 20.06.69, when Vedachala Gramani died, leaving Plaintiff as his legal heir, and from when the latter became entitled to suit 'A' schedule and from when his father Sundarmurthi took possession on his behalf, l984, when Plaintiff became major, in 1985, when he leased out 'B' schedule to Defendants father and got 1/3rd waram from him, in 1995, when Sadayappa Gramani died and for when Defendants attorned tenancy in favour of Plaintiff, and and continued to pay waram till 2005, and when the Plaintiff came to aware of bogus patta to Defendants for B schedule, 29.11.2006, when Plaintiff sent legal notice, 07.12.06, when frivolous reply was given, 12.06.01, the date of bogus partition deed between Defendants, 31.l.2007 the date of assault by Defendants, 3rd week of Feb/2007, from when they attempt to create encumbrance upon the suit items, and the filing of O.S. No.l5/07, before this Court and warranted version by them, and on subsequent dates, de-die-in-dium, at Irumbulicheri village, Nerumbur firka, Thirukalukundram Taluk, within the jurisdiction of this Court.”
20. The cause of action in both the suits are the same verbatim. To attract Order II, Rule 2 of CPC, the earlier suit should have been disposed off after answering the issues in the earlier suit. The learned Counsel for the Appellant relied on the rulings of the Hon'ble Supreme Court in (2004) 7 SCC 650 in the case of Dalip Singh vs. Mehar Singh Rathee and others. Here, both the suits were taken together for disposal since the cause of action in both the suits were found common. Therefore, the Defendant is not prejudiced by 22/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 the subsequent suit. Also, in the written statement filed in O.S.No. 66 of 2008, the specific plea of bar of subsequent suit on the same cause of action had not been pleaded and the same was not raised as an issue before the learned District Munsif-cum-Judicial Magisrate, Thirukazhukkundram. Therefore, the ruling cited by the learned Counsel for the Appellant in (2004) 7 SCC 650 in the case of Dalip Singh vs. Mehar Singh Rathee and others is found applicable to the facts and circumstances of this case.
21. The rulings relied by the learned Counsel for Respondents/ Defendants in (2014) 6 SCC 424 in the case of Coffee Board vs. Ramesh Exports Private Limited claiming that the subsequent suit on the same cause of action is barred as per Order II, Rule 2 of CPC is not applicable to the facts of this case. The rulings reported in (2013) 1 SCC 625 in the case of Virgo Industries (Eng.) (P) Ltd., vs. Venturetech Solutions (P) Ltd. is not applicable to the facts of this case as in the written statement filed in OS No.66 of 2008, the Defendants did not raise the bar of a subsequent suit on the same cause of action as part of their, and the same was not raised as an issue before the trial Court under Order II, Rule 2 CPC. Therefore, as per the ruling relied by the learned Counsel for the Appellant in (2004) 7 SCC 650 in the case of Dalip Singh vs. Mehar Singh Rathee and others the claim of the learned 23/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 Counsel for the Respondent that the subsequent suit in O.S. No.66 of 2008 is barred under Order II, Rule 2 of CPC is rejected in the light of the reported ruling in (2004) 7 SCC 650 in the case of Dalip Singh vs. Mehar Singh Rathee and others.
22. The finding of the learned District Munsif-cum-Judicial Magistrate, Thirukazhukkundram in O.S.No.66 of 2008 rejecting the evidence of P.W-2 on the request of the learned Counsel for the Defendant is found unacceptable as he had not exercised the discretion vested in him. The Defendant's side had cross examined the witness in full. P.W-2 Murugan was summoned by the Plaintiff on issue of process with a direction to produce the documents in which the signature of the father of the witness Murugan, is found. Accordingly, he had furnished documents which were marked as Ex.A- 15, Ex.A-16, and Ex.A-17. He had specifically admitted the signature found on exhibit A-2/Will as that of his father Solaiappan. He had admitted that he was not aware of the words and sentences used in Ex.A-2/Will. It is to be noted that only his father was the attesting witness. The witness, Murugan, on the date of his examination as P.W-2 was aged 42. He had clearly stated that his father died in 1991. The question to be put to Solaiappan cannot be put to the son of Solaiappan who was aged 42 years at the time of trial. Possibly he 24/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 was born in the year 1968. He is younger than the Plaintiff. The Plaintiff Varadhan was 2 years as on the date of execution of the Will under Ex.A-2. Therefore, he cannot be expected to explain the contents of the Will under Ex.A-2 when he was aged as that of the Plaintiff. Therefore, the rejection of the evidence of P.W-2 by the learned District Munsif-cum-Judicial Magistrate is found unacceptable. The learned District Munsif-cum-Judicial Magistrate had on request of the learned Counsel for the Defendant rejected the evidence of P.W-2 and thereby arrived at a finding that the Will under Ex.A-2 had not been proved is found unacceptable as he had not applied his mind to the law and facts of the case. It is the specific case of the Plaintiff that the Will came into existence on the death of Vedhachala Gramani. Vedhachala Gramani executed the Will when the Plaintiff was 2 years old. That Plaintiff on attaining the age of majority was informed about the execution of the Will by his father, Sundaramurthi Gramani. The Plaintiff was serving as a Conductor in the Tamil Nadu State Transport Corporation, because of his avocation, he was not in the village. The Plaintiff's father died sometime in the year 1995. Therefore, what is to be raised in the cross examination to the father of P.W-2 could not be put to P.W-2. P.W-2 had been cross examined regarding the signature of his father. The suggestion put to him that his father was not the witness was vehemently objected by him. He had furnished documents 25/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 showing his father's signature in some other documents, which are marked as Ex.A-15, Ex.A-16, Ex.A-17. On perusal of Ex.A-15, Ex.A-16, Ex.A-17, it is found that the signature in Ex.A-2 of Solaiappan is the same or similar under Ex.A-15, Ex.A-16, Ex.A-17. Due to the difference in the years and due to advanced age, the signature of the same individual may vary. That variation is found acceptable. The learned Counsel appearing for the Defendant had played a clever game by raising an issue that P.W-2 did not subject himself to cross examination. Therefore, his evidence has to be eschewed. The learned District Munsif-cum-Judicial Magistrate, Thiurkazhukkundram had not perused the deposition before exercising his discretion and applying his mind to the facts of the case. If the evidence of P.W-2 is rejected, automatically, the evidence of the attesting witness goes. Invoking Section 69 of the Indian Evidence Act, when the witnesses are not found, the propounder of the Will has to take steps to prove the signature and that of the attesting witness. At least one attesting witness and the other witnesses or the scribe. Accordingly, the Plaintiff gave summons to the son of the scribe Sundarrajan who was examined as P.W-3. P.W-2/Murugan had also stated that his father was the Panchayat President during his lifetime. P.W-3/Sundarrajan had stated that his father was Village Munsif or Village Karnam at the time of execution of Ex.A-2. When the status of the said persons are stated, that gives the Court a presumption in 26/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 favor of the Plaintiff as persons of reputation in the village in those days had been the witnesses to the Will.
23. It is also to be noted that the Plaintiff in his deposition had clearly stated that the father of Defendants 1 and 2, Sadaiappa Gramani was also witness to the Will. On perusal of Ex.A-2 it is found that the name Sadaiappa Gramani is also found in E.A-2/ Will. It is the specific case of the Plaintiff that the father of the Defendants knowing fully well of the facts of the case and the execution of the Will had not disputed the Plaintiff's enjoyment and possession of the property after the demise of Vedhachala Grammani. He had entered into oral lease agreement with the father of the Plaintiff, Sundaramurthi Gramani based on which the property under “B” schedule was cultivated, which is in the middle of the “A” schedule property and the Plaintiff as well as his father during his father's time were paid the dues. In the cross examination, P.W-1 clearly admitted that there was no written agreement between his father and Sadaiappa Gramani, the father of the Defendants. Those facts and circumstances are found cogent and acceptable. The learned District Munsif- cum-Judicial Magistrate failed to appreciate those facts and rejected the claim of the Plaintiff on the ground that the evidence of the Plaintiff regarding proof of Will under Ex.A-2 was not proved as per Section 63 of the Indian 27/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 Succession Act and as per Sections 68 and 69 of the Indian Evidence Act. The said finding of the learned District Munsif-cum-Judicial Magistrate in the judgment is found unacceptable. The evidence of P.W-3 was also rejected by the learned District Munsif-cum-Judicial Magistrate claiming that P.W-2 Sundarrajan had claimed that it looks similar to that of his father.
24. It is to be noted that the evidence has to be assessed in the light of the language used by the common man. He can only say it is similar. He cannot assertively say that it is his father's signature. He had furnished document showing his father's signature in other similar documents regarding immovable properties under Ex.X-1 and Ex.X-2 which claims Devaraj Karnam. It should be considered as a valuable piece of evidence, considering the status of Village Karnam of those days prior to the abolition of the Village Karnam / Munsif post by an Ordinance issued in this regard by the State Government on 14.11.1980. The learned District Munsif-cum-Judicial Magistrate failed to appreciate those facts. Therefore, the finding of the learned District Munsif-cum-Judicial Magistrate that the Will had not been proved is rejected. When the witnesses were not found, the Plaintiff had taken steps to produce the son of the Village Karnam of those times. P.W-2, is the son of the Village President of the relevant period when Ex.A-2 was executed 28/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 and the said Village President Solaiappan was a witness to Ex.A-2. The Karnam was the scribe. P.W-2 was cross examined. P.W-3 was also cross examined. The contention of the learned counsel of the Defendant that they did not subsequently appear after their cross-examination, and thus their evidence has to be eschewed was accepted by the learned District Munsif-cum-Judicial Magistrate, and thereby came to a conclusion that the propounder of the Will had not proved the Will. That part of the appreciation of evidence by the learned District Munsif-cum-Judicial Magistrate, Thirukazhukkundram, has to be rejected as non application of mind by the learned District Munsif-cum- Judicial Magistrate in assessing the evidence as per law and applying law to the facts and cirucmstance of the case. The Plaintiff is helpless to prove the recitals of the document/ Ex. A2 through the person who had written it. He had also stated in his plaint as well as in his evidence that Vedhachala Gramani, the uncle of Plaintiff, the cousin of the Plaintiff's father Sundaramurthi Gramani, died the next year in 1969 when the Will was executed in 1968. The circumstances creating suspicion was raised in the written statement by way of pleading by the Defendant that the Plaintiff had been making a claim of Will. There is no necessity for Vedhachala Gramani to execute a Will when he was aged 45. It is in evidence of the Plaintiff that Vedhachala Gramani died in the year 1969 and he had filed the death 29/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 certificate of Vedhachala Gramani also. It is his clear case that these facts were informed to him by his father. Vedhachala Gramani's wife died six years prior to execution of Ex.A-2. Vedhachala Gramani was maintained by his cousin, the Plaintiff's father Sundaramurthi Gramani. At that time, Vedhachala Gramani had specifically stated that to show his gratitude, love and affection to Sundaramurthi Gramani for having maintained him, he is executing a Will in favor of the two years old minor son of Sundaramurthi Gramani and appointing Sundaramurthi Gramani as the guardian of the minor for the property for which Ex.A-2 was executed. The wordings of the said Vedhachala Gramani is reflected in Ex.A-2. Therefore, by cogent evidence and by other means as per Section 89 of the Indian Evidence Act, the Plaintiff had proved his claim of Will as propounder of the Will. The fraud claimed by the Defendants 1 and 2, is for the Defendants to prove it.
25. It is to be noted that the father of the Defendant, Sadaiappa Gramani is also witness to the same. The Plaintiff in his evidence had clearly stated that the Defendant's father did not disturb his peaceful possession. He had knowledge of the Will. He had taken lease of the property by paying the dues 1/3rd of the yield as vaaram. Subsequent to the death of Sadaiappa Gramani, the Defendants also paid the vaaram. That is the evidence of 30/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 Plaintiff. When the Defendants claim that it is fraud, it is for the Defendant to prove it. The Defendants had not proved it. Under those circumstances, the assessment of evidence by the learned District Munsif-cum-Judicial Magisrate by taking for granted the rulings filed by the learned Counsel for the Appellant and relying on the submission of the learned Counsel for the Defendant that P.W-2, the son of the attestor Solaiyappan had not further appeared for further cross-examination is to be rejected. That is the easy way found out by the learned Counsel for the Defendant to reject the evidence of P.W-2. The learned Counsel for the Defendant had cross examined and suggested that the signature of Solaiappan is not that of the father of P.W-2 which he had stoutly denied. Similarly, P.W-3 was also cross examined. He had also stoutly denied. In the cross examination of P.W-3/Sundarrajan when he was cross examined whether his father, Devraj Karnam had license as a document writer, he had answered in the negative. That does not mean that his father is incompetent to execute a document. It is to be noted that in the year 1968, literate people were scarce. The persons who were able to write and read were scarce. Village Munsifs were persons who had adequate qualifications, who were given the powers of administration at the village level. They were hereditary post and they were aware of the enjoyment of the properties in their respective villages. This can be taken judicial notice from the earlier judgments of the relevant 31/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 period as till 1980s and even 1990s, the Village Karnams were summoned as witnesses by the respective parties in civil disputes. Their evidence had more value than the ordinary person. Documents were executed by them in their own handwriting and not as typewritten as that of the present days. They were practically document writers. Those things were lost sight of by the learned District Munsif-cum-Judicial Magistrate while appreciating the evidence. The learned Sub Judge, Chengalpet also in the discussion, based on the arguments of the learned Counsel for the Respondent observed that the Will had not been proved, is found erroneous. On reappreciation of evidence, the learned first Appellate Court Judge also arrived at the same conclusion which is also found perverse. Therefore, the rulings relied by the learned Counsel for the Respondents in (i) (2014) 2 SCC 269 [Union of India vs. Vasavi Co-operative Housing Society Limited and others], (ii) (2013) 1 SCC 625 [Virgo Industries (Eng.) (P) Ltd., vs. Venturetech Solutions (P) Ltd.,], (iii) (2014) 6 SCC 424 [Coffee Board vs. Ramesh Exports Privage Limited], (iv) 2023 SCC OnLine SC 255 [Ashutosh Samanta (D) by Lrs and others vs. SM. Ranjan Bala Dasi and others], (v) (2008) 14 SCC 754 [Babu Singh vs. Ram Sahai], (vi) Manu/TN/2920/2022 [Malliga v. P. Kumaran] and (vii) (2021) 11 SCC 277 [Shivakumar vs. Sharanabasappa] will not be applicable to the facts of this case. Hence, the above rulings are rejected. Accordingly, the 32/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 submission of the learned Counsel for the Respondents relying on the rulings are to be rejected.
26. Here the Defendants in the written statement had claimed that Vedhachala Gramani is alleged to have executed the Will at the age of 45. What is the necessity for a person aged 45 to execute a Will? The Plaintiff in his pleadings as well as in his evidence stated that Vedhachala Gramani was a heart patient at that period. His wife died six years prior to his death and prior to the execution of the Will. Therefore, he was under the care of father of the Plaintiff. At that relevant point of time, Plaintiff was aged two years. Vedhachala Gramani, the testator of the Will died in the year 1969 for which he had produced the death certificate under Ex.A-10. It was suggested to the Plaintiff by the learned Counsel for the Defendant that it was obtained through direction of the Court, which also he had denied. Even if obtained by the direction of the Court, it cannot be rejected as suspicious circumstances as the Plaintiff was only a minor aged two years. The Plaintiff's father also died in the year 1991. Under those circumstances, Ex.A-10 cannot be rejected as a suspicious circumstance. Above all, the father of the Defendant Sadaiappa Gramani, was also a witness who had seen the execution of the Will by Vedhachala Gramani and the Will being written by the then village Karnam 33/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 Devaraj. The said Karnam's son P.W-3 Sundarrajan had examined himself as P.W-3. Even though P.W-2 evidence was eschewed, the Munsif had the opportunity to verify the evidence of PW-4 Selvam, who is also the brother of PW-2 Murugan and the son of Solaiyappan who had also marked the documents as Ex.X-3 to Ex.X-5. The documents contaied the signature of his father Solaiappan who was the Village Panchayat President at the relevant point of time. More than that, the Defendant 2 was examined as D.W-1. He had in his cross examination admitted that Sundramurthi Gramani and Vedhachala Gramani are from common ancestors. By that admission, he admitted that he is not a descendant belonging to the family of Vedhachala Gramani or Sundaramurthi Gramani. He admits that he does not know that his father Sadaiappa Gramani was an attestor to the Will even though Plaintiff claimed that his father was an attestor of the Will under Ex.A-2. He had admitted that he has custody of documents in which his father Sadaiappa Gramani had signed. He has also admitted that he is ready to take steps to verify Ex.A-2 with admitted signatures of his father as to whether the documents contained admitted signatures of his father. But he had not taken such steps. He had also not produced documents containing admitted signature of his father. He had also not taken steps to verify Ex.A-2 whether it contains his father Sadaiappa Gramani's signature. Under those circumstances, the 34/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 conduct of the Defendant had to be analyzed and assessed by the learned District Munsif-cum-Judicial Magisrate to draw adverse inference from what was spoken to by the witness D.W-2. The learned Judge had on assessment of evidence arrived at a conclusion that there is variance between the deposition of D.W-1 and the pleadings in the written statement regarding the extent under enjoyment and possession of the Defendant's family. Therefore, the learned District Munsif-cum-Judicial Magistrate had granted injunction only to “A” scheduled property to the Plaintiff in O.S.No. 66 of 2008 and dismissed the suit regarding “B” schedule property as the Subdivision 49/3B is in the name of the Defendant's father. It is to be noted that the Plaintiff had clearly stated that the Defendant had attempted to alienate the property by creating documents and also through the Revenue Department subdivided the property even though the entire property of 2 Acre 57 cents was in the name of Vedhachala Gramani and they had subdivided it to three without the knowledge of the Plaintiff. Therefore, he had issued notice calling upon the Defendants 1 and 2, cancelling the lease and directing them to handover possession under Ex.A-11 dated 25.11.2006 and in the reply sent by the Defendants under Ex.A-12, dated 07.12.2006, they denied the execution of the Will and claimed that they were the owners of the property as successors to Vedhachala Gramani. The Plaintiff has also produced the sale deed under 35/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 Ex.A-14 showing that the Plaintiff's grandfather Thanthoni Gramani had purchased the suit property. The Defendants had only produced the patta showing the joint patta in the name of Vedhachala Gramani and Sadaiappa Gramani under Ex.B-1 and the series of receipts under Ex.B-2 in the name of Defendants father Sadaiappa Gramani for Patta No. 57. Ex.B-3 showing the partition deed between Defendants 1 and 2 sons of Sadaiappa Gramani. It is a clear case of the Plaintiff that Defendants 1 and 2 after the demise of their father had been paying the vaaram regularly but subsequently they stopped paying. The Plaintiff came to know about the the Defendant's attempt to alienate the property. Therefore, he had immediately filed O.S.No.15 of 2007 seeking permanent injunction to not to encumber the properties. Subsequently, he had filed the suit seeking declaration of title, recovery of possession, recovery of mesne profits, permanent injunction restraining the Defendants from interfering with the possession of the property and for costs. Therefore, both the suits are maintainable. Both the suits were taken up together. There is no question of harassing the Defendant continuously by instituting new suits in order to harass the Defendant. That part of the argument by the learned Counsel for the Respondent placing the reliance on Order II, Rule 2 of CPC is rejected in the light of the experience of the appearing Counsels in the trial Court to seek immediate relief, suit for injunction was filed. Subsequently, 36/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 the appearing Counsels came to know about the claim of the Plaintiffs and therefore they filed subsequent suit seeking the relief which covers the relief in the earlier suit. The earlier suit was only for the purpose of injunction. The subsequent suit is for the relief of declaration of title, recovery of possession, mesne profits, permanent injunction not to interfere with the possession of the property and for costs. Therefore, it is found to be proper. When both the suits are tried together, it is of common evidence. In the subsequent suit, the Defendants had not claimed that the subsequent suit was hit by Order II, Rule 2 of CPC and no such issues had been framed by the trial Court. Therefore, the claim that the subsequent suit is hit by Order II, Rule 2 is also rejected. The arguments of the learned Counsel for the Respondent citing Order II, Rule 2 of CPC and the rulings referred above are also rejected.
27. The Courts below, both the trial Court and the first Appellate Court had erred in rejecting the Will under Ex.A-2 dated 17.06.1968 which was more than 30 years old document as per Section 90 of the Indian Evidence Act. The Plaintiff as the beneficiary of the Will is duty bound to prove the same. On the date of execution of the Will by the testator Vedhachala Gramani, the Plaintiff was only aged 2 years. On the date of the suit, the Plaintiff was aged 42 years. The person who was 45 years at the time of execution of the 37/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 Will, the testator, is not alive. The attestor Solaiappan, is also not alive. The scribe Devaraj Karnam is also not alive. Naturally, the Plaintiff has to rely on the evidence of the witnesses who are familiar with the signature of the attesting witness and the scribe. Naturally, he had invited Sundarrajan, the son of scribe Devaraj Karnam. To prove the signature of the attesting witness Solaiappan he had summoned P.W-2, Murugan, who had stated in his evidence that his father Solaiappan, was the then Village Panchayat President. Since the learned Counsel for the Defendants sought eschewment of the evidence of P.W-2 for not appearing for cross-examination, the Plaintiff had summoned the brother of the P.W-2, Selvam P.W-4. He had in his evidence marked Ex.X-3 to Ex.X-5. He had identified the signature of Solaiappan, father of P.W-4. He was also subjected to cross-examination.
28. In the light of the above discussion, the Court of the learned District Munsif-cum-Judicial Magistrate as trial Court and the Court of the learned Sub Judge, Chengalpet, as first Appellate Court had erred in rejecting the evidence of the Plaintiff claiming right and title to the suit property measuring 2 acres, 57 cents as per the Will under ExA-2. It is more than 30 years old document. As per Section 90 of the Indian Evidence Act, if the document is more than 30 years old, the presumption is always in favour of the 38/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 30 years old document. The Defendants had disputed it stating that it is a forged document. When the Plaintiff had proved the execution of the Will by examining the sons of the scribe and the attesting witness, the presumption under Section 90 of the Indian Evidence Act, and the burden of proof regarding Will under Section 63 of the Indian Succession Act and under Sections 68 of the Act were attempted. Therefore, the Court has to invoke Section 69 to prove the same by other means. The Plaintiff had invoked the provision under Section 68 of the Indian Evidence Act by attempting to prove the Will by invoking Section 69 “by other means”. Naturally, the sons of the attesting witness Solaiappan and the son of the scribe, the then Village Karnam, Devaraj as P.W-3 had identified the signature. Naturally, the Court ought to have deduced from the available materials that the Plaintiff had proved the Will. Instead, the learned District Munsif-cum-Judicial Magistrate had misdirected himself and arrived at a conclusion that the Plaintiff had not proved the Will. At the same time, the Plaintiff's possession of the suit property by Ex.A-3 to Ex.A-9 was proved and thereby the trial Court granted decree for permanent injunction for the properties other than “B” property. It is to be noted that “B” property was taken up on lease by the Defendants' father Sadaiappa Gramani and he was paying Vaaram to the Plaintiff's father Sundaramurthi Gramani. After the death of Sundaramurthi Gramani, the 39/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 Defendants' father was paying Vaaram. After the death of Defendants' father, Defendants 1 and 2 also had been paying Vaaram, but subsequently failed to pay it. However, due to the avocation of the Plaintiff as a Conductor in the State Transport Corporation, he was unable to follow it up. He was taken by surprise when he came to know that the land brokers were visiting the property. Therefore, he suspected that Defendants 1 and 2 were attempting to encumber the properties. Therefore, the Plaintiff had obtained relevant records from the Registration Department, whereby he came to know that the Defendants 1 and 2 had created document and thereby filed petition before the revenue authorities and sought subdivision of the schedule of property in their name. The Plaintiff had also filed appropriate petitions before the higher authorities of the revenue department for cancellation of the same. Since the dispute had arisen in the light of Ex.A-11, Plaintiff sought surrender of the property from the Defendants but the Defendants refused to hand over the possession by denying the title of the Plaintiff under Ex.A-12 reply notice. The Plaintiff was forced to file the suit for declaration of title and consequential relief. The learned District Munsif-cum-Judicial Magistrate had rightly granted relief only for “A” schedule property and refused to grant injunction regarding “B” schedule property. If the learned District Munsif-cum-Judicial Magistrate had analysed the evidence, he could have granted the decree. 40/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013
29. The learned Sub Judge had in the discussion of evidence in reassessment of evidence rejected the claim of presumption under Section 90 stating that the Will had to be proved under Section 68 by examining at least one witnes. The evidence of P.W-2 and P.W-4 is to be noted that their father/ the attesting witness Solaiappan died long before the suit in the year 1991. It is to be accepted as natural that the sons are competent to speak about the death of their father. The Plaintiff himself had stated that the attesting witness and the scribe were not alive on the date of filing of the suit. The learned Sub Judge also failed to consider the circumstances of the case under Ex.A-2, when the Plaintiff was aged just 2 years. Apart from that, the testator Vendhachala Gramani is a cousin of the Plaintiff's father Sundaramurthi Gramani. They are from the common ancestor. Whereas the Defendants 1 and 2 are the sons of another attesting witness Sadaiappa Gramani. The Defendant 2 as D.W-1, in his cross examination admitted that he would furnish documents containing his father's signature. He had in his evidence and in cross examination clearly stated that he had not perused Ex.A-2, the original Will to find out his father's/ Sadaiappa Gramani signature. Subsequently, he had not produced such documents as well. Also the Court could have drawn adverse inference in the light of the cross examination of D.W-1. When the Plaintiff had proved the 41/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 execution through P.W-2 to P.W-4 regarding execution of the Will as the attesting witnesses to the Will and the scribe are not alive, the burden naturally shifts on the Defendants to prove that it is a forged Will. The Defendants had not produced any document to disprove the signature of the father of Defendants 1 and 2/Sadaiappa Gramani in Ex.A-2. Under those circumstances, the Court has to draw adverse inference against the Defendants 1 and 2. Also, the Court has to draw inference in favour of the Plaintiff under Section 69 and Section 90 of the Indian Evidence Act, as when the witnesses are not alive the alternative available to the Plaintiff had been invoked by the Plaintiff.
30. The claim of the Defendants 1 and 2 in attempting to get a patta in the joint name of the Vedhachala Gramani and Sadaiappa Gramani is found unfair as Sadaiappa Gramani had not contributed to the purchase of the property. Sadaiappa Gramani was only an attesting witness to the Will. If he had any claim in the property, he would not have affixed his signature in Ex.A- 2 Will when the testator was making the Will through the help of the Village Karnam, Devaraj. The Defendants had only produced Ex.B-1, which is the patta. Whereas, the Plaintiff had filed exhibit A-13 showing the chitta in the name of Vedhachala Gramani and Exhibit A-14 showing the purchase of the 42/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 property by Thanthoni Gramani, the grandfather of Plaintiff. Further, it is to be noted that the Plaintiff is the son of Sundaramurthi Gramani. Sundaramurthi Gramani's cousin was the testator Vedhachala Gramani. Sundaramurthi Gramani's elder brother is Loganathan. Loganathan's wife is Rupavathi. Rupavathi's brother is Sadaiappa Gramani. When Vedhachala Gramani had lost his wife six years prior to Ex.A-2 Will and he himself being a heart patient in the year 1968 he was aware that he could not live longer. Therefore, under these circumstances, he had executed the Will. Vedhachala Gramani died in the year 1969 for which the Plaintiff was not directly aware of the date of death. He was informed of the same by his father Sundaramurthi Gramani. He had produced the death certitificate of Vedhachala Gramani under Ex.A-10. In the year 1969 itself Vedhachala Gramani died. Threrefore, the averments in the plaint had been proved by the Plaintiff. The claim of the Defendants that the property was originally owned by Vedhachala Gramani and Sadaiappa Gramani, it is for them to prove how the property reached the hands of the Defendants. Merely producing patta will not help them. Whereas the Plaintiff had claimed it properly. A person who claims to be a heart patient will not be able to cultivate his lands. Therefore, he had handed over the cultivation to Sadaiappa Gramani. Just because Sadaiappa Gramani is in possession he cannot claim the entire lands as though it belongs to him. 43/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 Patta stood jointly in the name of Sadaiappa Gramani and Vedhachala Gramani will not entitle Sadaiappa Gramani or his sons to claim ownership of the property when Vedhachala Gramani himself executed the Will in which Sadaiappa Gramani was an attesting witness. Therefore, it is to be treated as Vedhachala Gramani had executed the Will in favour of his cousin's minor son aged two years. Vedhachala Gramani is related to Sundaramurthi than to Loganathan's wife Rupavathi. Therefore, naturally, he was taken care of by his cousin Sundaramoorthi Gramani/father of the Plaintiff. Therefore, the wordings in the Will that since he lost his wife and he had been maintained and taken care of by Sundaramoorthi Gramani, he wanted to show his gratitude, love and affection to Sundaramurthi Gramani by executing the Will, had been found reasonable in the facts and circumstances of the case under Ex.A-2 to which the then Village Karnam Devaraj was the scribe and the then elected Village Panchayat President Solaiappan was the witness. The brother of another cousin Loganathan's wife Rupavathi Sadaiappa Gramani was the attesting witness. Under those circumstances, the facts and circumstances of this case was ignored by the learned District Munsif-cum-Judicial Magistrate, Thirukazhukkundram and the learned Sub Judge, Chengalpet. Therefore, the judgment of the first appellate Court is found erroneous warranting interference of this Court.
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31. The Courts below were not right in rejecting the Will which was 40 years old when the presumption under the Indian Evidence Act was in favour of the Plaintiff as none of the witnesses to the Will were alive and thus, were not available on the date of the trial.
32. The presumption regarding more than 30 years old document is in favour of the Plaintiff which ought to have been considered by the trial Court.
33. The trial Court erred in not considering the provisions under Sections 68, 69 and 90 of Indian Evidence Act and Section 63 Indian Succession Act regarding the Will and dismissed the claim of the Plaintiff.
34. In the light of the above discussion, the substantial questions of law are answered in favour of the Appellant/Plaintiff and against the Respondents/Defendants in O.S. No. 15 of 2007 and O.S.No.66 of 2008.
In the result, both the Second Appeals are allowed. The judgment and decree dated 11.07.2012 passed in A.S. Nos. 34 and 35 of 2011 and Cross Appeal in A.S.No.34 of 2011 by the learned Additional Sub Judge, Chengalpet 45/48 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 04:06:58 pm ) S.A.Nos.448 and 638 of 2013 and the judgment and decree dated 21.10.2021 passed in O.S. No. 15 of 2007 and O.S.No.66 of 2008 by the learned District Munsif-cum-Judicial Magistrate, Thirukazhukkundram are set aside. The suits in O.S. No. 15 of 2007 and O.S.No.66 of 2008 on the file of the learned District Munsif-cum- Judicial Magistrate, Thirukazhukkundram are decreed as prayed for. Consequently, the connected miscellaneous petition is closed.
03.07.2025
srm
Index : Yes/No
Internet : Yes/No
Speaking/Non-speaking order
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S.A.Nos.448 and 638 of 2013
To
1. The Additional Sub Judge,
Chengalpet.
2. The District Munsif-cum-Judicial Magistrate,
Thirukazhukkundram.
3. The Section Officer,
V.R. Section,
High Court Madras.
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S.A.Nos.448 and 638 of 2013
SATHI KUMAR SUKUMARA KURUP, J
srm
Judgment made in
S.A.Nos.448 and 638 of 2013
03.07.2025
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