Madras High Court
S.Ramesh vs V.Manjula on 7 July, 2017
S.A.No.778 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 21.02.2024 Pronounced on: 08.03.2024
CORAM
THE HONOURABLE MR. JUSTICE P.B.BALAJI
S.A.No.778 of 2017
and
CMP. Nos.19532 of 2017
& 20201 of 2021
Shanmugam (Died)
1.S.Ramesh
2.S.Dhasarathan
3.S.Suresh
4.S.Jegatha
...Appellants
Vs.
1.V.Manjula
2.Chitra
...Respondents
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure to set aside the Judgment and Decree dated 07.07.2017 passed in
A.S.No.26 of 2014 on the file of the Sub Court, Gudiyattam, Vellore District
reversing the Judgment and Decree dated 19.09.2014 made in O.S. No.110
of 2010 on the file of the District Munsif Court, Gudiyatham, Vellore
District dismissing the said suit.
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S.A.No.778 of 2017
For Appellants : Mr.V.M.G.Ramakkannan
For Respondents : Mrs.P.Buvaneswari for R1
No Appearance for R2
JUDGMENT
The unsuccessful defendants in a suit for partition, separate possession and permanent injunction are the appellants before me.
2. The parties are described as per their litigative status before the trial Court.
3. The plaintiff is the daughter of one late K.Shanmugam who was arrayed as the first defendant in the suit. The defendants 2 to 5 are the sons and daughter of the said Shanmugam, the first defendant. Pending the suit, the first defendant died and his wife was impleaded as the 6th defendant.
4. The case of the plaintiff is that through a registered partition deed dated 19.11.1984, the suit property was allotted towards the share of the first defendant K.Shanmugam, the plaintiff and the 5th defendant being 2/16 https://www.mhc.tn.gov.in/judis S.A.No.778 of 2017 daughters of the first defendant. The defendants 2 to 4, being the sons of the first defendant are entitled to 1/6th share each in the suit property. The plaintiff, despite several attempts and requests to have the suit property partitioned was not successful as the first defendant was postponing the same under some pretext or other and therefore, she has filed the suit claiming that the suit property, having originally belonged to the first defendant's father Kandasamy Gounder, that is her grand father, she would become entitled to equal share viz., 1/6th share alongwith her siblings.
5. The sixth defendant alone chose to contest the suit. Initially, the 6 th defendant filed a written statement stating that her daughter/the plaintiff had no right to claim partition as the property was the self acquired property of the first defendant, her husband.
6. The second defendant thereafter filed an additional written statement stating that the first defendant had executed a registered Will on 7th May 2010, bequeathing the suit property in favour of the defendants 2 to 3/16 https://www.mhc.tn.gov.in/judis S.A.No.778 of 2017 4, giving a life estate and vested remainder to their respective legal heirs. The first defendant admittedly, died on 09.06.2010 and therefore, the only question that was to be decided by the trial Court was with regard to the truth and genuineness of the said Will which has been marked as Ex.B1.
7. The trial Court found that the Will was proved and the property being the self acquired and absolute property of the first defendant, the plaintiff had no right to seek for partition and dismissed the suit filed by the plaintiff.
8. Aggrieved by the dismissal of the suit, the plaintiff preferred an Appeal in A.S. No.26 of 2014 before the Sub Court, Gudiyatham. The First Appellate Court, while discussing Ex.B1 held that Ex.B1 was executed in suspicious circumstances and therefore, held that the Will was not proved in accordance with law and proceeded to grand a preliminary decree for partition in favour of the plaintiff.
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9. Aggrieved by the said reversal findings rendered by the First Appellate Court, the defendants who claimed benefits under Ex.B1 Will, have filed the present Second Appeal.
10. The above Second Appeal was admitted on 07.12.2017 on the following substantial questions of law:-
“a.Whether the lower appellate Court ought to have dismissed the appeal in consideration of the admission made in the appeal by the 1st respondent/appellant herein that the suit property was personal property of her father, the 1st appellant/respondent herein as the suit filed for seeking a share in the personal property of her father while he was alive was liable to be dismissed as not maintainable?
b.Whether the lower appellate Court has erred in not dismissing the appeal against the 1st respondent for propounding a new plea in the appeal claiming a share in the suit property on the ground of inheritance from her father as Class -I legal heir while laying her claim in the suit for a share as coparcener?
c.Whether the first appellate Court has failed to consider the fact that the Will dated 07.05.2010 executed by the 1 st appellant/respondent herein had no relevance to the subject matter of the suit as the claim for a share was made by the 1st appellant/appellant herein as a coparcener?5/16
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11. I have heard Mr.V.M.G.Ramakannan, learned counsel for the appellants and Mrs.P.Bhuvaneswari, learned counsel for the first respondent/plaintiff.
12. The learned counsel for the appellants would submit that the suit itself was not maintainable during the lifetime of the first defendant. Moreover, the Will has been duly proved and the trial Court had rightly dismissed the suit. He would further contend that the First Appellate Court erroneously allowed the Appeal and granted the preliminary decree which would warrant interference under Section 100 of the Code of Civil Procedure.
13. Per contra, the learned counsel for the first respondent would submit that the Will itself came to be executed only after the suit was filed by the plaintiff. She would also state that there was absolutely no whisper about the Will in the written statement and only by way of additional written 6/16 https://www.mhc.tn.gov.in/judis S.A.No.778 of 2017 statement, the existence of the Will was sought to be pleaded to defeat the plaintiff's right. She would therefore, pray for the findings of the First Appellate Court to be confirmed and consequently to dismiss the Second Appeal.
14. Dealing with substantial questions of law 1 and 2, the specific case of the plaintiff herself was that the properties were joint family properties available for partition at the hands of her father, the first defendant. In fact, if such a plea had not been raised by her, the suit itself would not have been maintainable during the lifetime of her father, especially, when the father has been arrayed as the first defendant in the suit and he died only pending the suit. However, when the defendants projected a registered Will, under which the plaintiff was disinherited, the plaintiff has switched over to take a stand stating that she would be entitled to share as a Class I, being a legal heir of her father, the first defendant. Be that as it may, both these substantial questions of law will ultimately boil down to the proof of due execution of the Will in Ex.B1.
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15. I have perused Ex.B1, which is a registered Will. The first defendant has affixed his left thumb impression in all the five pages of the said Will dated 07.05.2010. The Will was attested by two witnesses viz., S.Babu and G.Subramani and the scribe C.Thiruvengadam, has also signed, mentioning that he has drafted the Will. On the reverse of the first page of the Will, I find that the photographs of the first defendant have been affixed and his identity has been confirmed by the Sub Registrar, Pernampattu. The first defendant has affixed his left thumb impression adjacent to his photograph affixed on the reverse of the first page of the said Will. The said thumb impressions affixed by the first defendant have been identified by two witnesses who are none else than the attesting witnesses to the Will. The Will has been executed in the afternoon, between 3.00 p.m and 4.00 p.m, on the same day of execution i.e., 7th May 2010.
16. On going through the evidence of P.W.2, one of the attesting witness cum identifying witness before the Sub Registrar, it is seen that in 8/16 https://www.mhc.tn.gov.in/judis S.A.No.778 of 2017 his chief examination, he has clearly spoken about the parties who have assembled at the Sub Registrar's Office at about 10.30 a.m in the morning and the first defendant giving instructions to the Advocate for preparing the Will and that after the Will was prepared, it was typed at a nearby typing Institute and that after it was ready, the Will was read out to the first defendant in the presence of D.W.2 He has also confirmed the time to be about 2.45 p.m. He has spoken about the execution of the Will by the first defendant, affixing his left thumb impression in his presence and in the presence of the other attesting witnesses and further he has also spoken about the fact that the first defendant witnessed the attestation made by him. It has come out in the cross examination that the first defendant was suffering from leg pain and that the first defendant himself told D.W.2 about the same. He denied the suggestions put to him that he is giving false evidence as he was related to the second defendant. Even in cross examination, D.W.2 has confirmed that the Will was executed around 3.00 p.m and that they were in the Sub Registrar's Office for about 45 minutes. 9/16 https://www.mhc.tn.gov.in/judis S.A.No.778 of 2017
17. The First Appellate Court has disbelieved the Will as suspicious, by placing reliance on totally irrelevant factors like advanced age of the first defendant viz., 72 years who is not in good health; D.W.2 was not able to state where exactly the Will was typed; which were the Survey Numbers allotted to the various beneficiaries and as to why instead of signing, the testator had affixed his left thumb impression.
18. Unfortunately, I do not find any suggestions put to D.W.2, the attesting witness, with regard to the mental condition of the first defendant. In fact, even in chief examination D.W.2 has stated that the first defendant informed him that he was not keeping good health and therefore, he wanted to execute the Will and in cross examination, the only admission that the plaintiff could extract was that the first defendant was suffering from leg pain. There is absolutely no evidence on the side of the plaintiff to discredit the cogent evidence adduced by D.W.2, the attesting witness. Moreover, as already seen, the Will Ex.B1, is a registered Will and the identity of the testator viz., first defendant has also been verified by the Sub Registrar by 10/16 https://www.mhc.tn.gov.in/judis S.A.No.778 of 2017 signing across the photographs of the first defendant on the reverse of the first page of the Will.
19. The only factor which if at all, could be termed as suspicious circumstances is with regard to the first defendant affixing his left thumb impression instead of signing the Will. Though no doubt, there is no evidence with regard to the reason for affixing his left thumb impression instead of signing the Will, the mere fact that the first defendant has chosen to affix his left thumb impression cannot be a ground to throw out the Will, which has otherwise been duly proved to be not only executed, but also registered.
20. The reasons given by the First Appellate Court to disbelieve the Will are really stranger than fiction. The First Appellate Court states that when the property would automatically devolve on his legal heirs, there was no necessity for the first defendant to execute a Will, about one and half months before his demise and that it would amount to doubting the truth 11/16 https://www.mhc.tn.gov.in/judis S.A.No.778 of 2017 and genuineness of the Will. I am unable to comprehend and digest such approach of the First Appellate Court. The first defendant certainly would not have been aware of the fact that he is going to die in the next one and half months. Further, the very object of executing the Will is to defeat the ordinary line of succession and the bequests under the Will also appear to be very natural and reasonable. The sons have been given a restricted right, by way of life interest, with no power of alienation and thereafter, the suit property has been bequeathed to their respective legal heirs. I do not find any unnatural bequests made by the first defendant under Ex.B1 Will. Further, as already found D.W.2 has clearly spoken about due execution of the Will and he has additionally spoken about the factum of the Will being registered before the Sub Registrar, being one of the identifying witnesses besides also attesting the Will. Once the propounder discharges the initial burden of proof of due execution of Will, the burden shifts to the persons who opposes the Will on the grounds of the Will being not true and genuineness. I do not find any evidences whatsoever in support of the plaintiff discharging such burden on her.
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21. The First Appellate Court has referred to irrelevant circumstances as suspicious circumstances. It is settled law that the Court dealing with a Will should not start with suspecting the Will. On the contrary, the Court should start with a presumption that the Will is genuine and when the propounder is able to satisfy the legal requirements viz., due execution and attestation as contemplated under Section 63(c) of Indian Succession Act read with Section 68 of the Indian Evidence Act, it should call upon the adversary party to prove the contrary. In fact, it is settled law that when suspicious circumstances exists, it is the burden of the propounder to dispel the same. However as already discussed, the circumstances put against the appellants are not even suspicious circumstances surrounding the due execution or attestation of Will, but unfortunately, the First Appellate Court, on imagination, spelt out circumstances that are totally unwarranted and not even raised by the plaintiff at the time of trial.
22. Insofar as the arguments of the learned counsel for the first 13/16 https://www.mhc.tn.gov.in/judis S.A.No.778 of 2017 respondent with regard to there being no plea with regard to the Will executed by the first defendant, the learned counsel for the appellants rightly contend that there was no necessity for pleading about the Will. In fact, I find two reasons for rejecting the contention of the learned counsel for the plaintiff. Firstly, the suit was filed by the plaintiff's daughter only claiming coparcenary right in the suit properties, characterising it as an ancestral joint family property. Secondly, when the first defendant was the testator and he was very much alive and only after his demise, the question of the Will coming into effect would become relevant and therefore, non mentioning about the Will in the written statement would not be of any concern. Moreover, the Will would come into effect only after his lifetime and further, when he was at perfect liberty to revoke or modify the said Will at any time during his lifetime, the Will executed by the first defendant was only a piece of paper, with no evidentiary value at the time when the suit was filed and as long as the first defendant was alive. It assumes the character of a legal document, the moment he died. Therefore, the fact that the defendants had not pleaded about the Will in the written statement 14/16 https://www.mhc.tn.gov.in/judis S.A.No.778 of 2017 would not be fatal to their case.
23. For all the above reasons, I am answering the substantial questions of law in favour of the appellants and the Second Appeal is allowed. The judgment and decree dated 07.07.2017 in A.S.No.26 of 2014 is set aside and the judgment and decree dated 19.09.2014 in O.S. No.110 of 2010 is restored. Consequently, connected Miscellaneous Petitions are closed. There shall be no order as to costs.
08.03.2024
Index :Yes/No
Internet : Yes/No
Neutral Citation :Yes/No.
Speaking order/Non-speaking order
rkp
To
1.The Sub Court, Gudiyattam, Vellore District
2.The the District Munsif Court, Gudiyatham, Vellore District. 15/16 https://www.mhc.tn.gov.in/judis S.A.No.778 of 2017 P.B.BALAJI, J.
rkp S.A.No.778 of 2017 and CMP. Nos.19532 of 2017 & 20201 of 2021 08.03.2024 16/16 https://www.mhc.tn.gov.in/judis