Madras High Court
L.S.Jayaprakash vs Dhanalakshmi (Died) on 19 August, 2025
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
S.A. No. 1059 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.08.2025
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
S.A. No. 1059 of 2009
1.L.S.Jayaprakash
2.L.S.Suresh ... Appellants
Vs.
1.Dhanalakshmi (died)
2.Sundararajan
3.Gopinathan
4.Padmini
5.Devaki
6.Geetha ... Respondents
[R1 died, RR2 to 6 already on record are Legal Heir of the Deceased R1.
Memo recorded (dt-31.07.2025) vide Court Order dt. 31.07.2025 made in
S.A. No. 1059 of 2009 (CVKJ).
This Second Appeal has been filed under Section 100 of Code of
Civil Procedure praying to allow the Second Appeal by setting aside the
judgment and decree dated 12.11.2008 made in A.S. No. 54 of 2008 on
the file of the Principal District Judge, Salem confirming the judgment
and decree dated 1102.2008 made in O.S. No. 379 of 2002 on the file of
the Court of Principal Subordinate Judge, Salem.
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S.A. No. 1059 of 2009
For Appellants : Mr.T.P.Manoharan, Senior Advocate
For Mr.T.M.Naveen
For Respondents : Mr.I.Abrar Mohd. Abdullah
JUDGEMENT
The plaintiffs in O.S. No. 379 of 2002 on the file of the Principal Sub Court, Salem are the appellants herein. The suit in O.S. No. 379 of 2002 had been filed by two brothers, L.S.Jayaprakash and L.S.Suresh against six defendants, 1.Dhanalakshmi (died), 2.Sundararajan,
3.Gopinathan, 4.Padmini, 5.Devaki, and 6.Geetha seeking a preliminary decree in their favour by dividing the suit schedule properties into 14 equal shares and to put the plaintiffs in separate possession and enjoyment of the 2/14 share and also pass a decree directing the defendants to pay costs of the suit.
2. By judgment dated 11.02.2008, the Principal Sub Court, Salem had dismissed the suit with costs.
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3. This had necessitated the plaintiffs to file A.S. No. 54 of 2008 which came up for consideration before the Principal District Court at Salem. By judgment dated 12.11.2008, the Appeal Suit was also dismissed with costs.
4. The plaintiffs had then filed the present Second Appeal. The Second Appeal had been admitted on the following three substantial questions of law:-
“1. Whether the respondents 1 to 4 and 6, who have propounded Ex.B6 to B10 viz., Wills are not bound to prove that the said Wills are genuine, legal and valid documents and also come into force and inspite of their failure to do so, were the Courts below right in relying on those Wills and dismissing the Suit?
2. When the respondents 1 to 4 & 6, who propounded Ex.B6 to 10 Wills, are not bound to clear the suspicious glaring on the face of same, including their active participation in the preparation, execution, attestation and registration by signing as witnesses Page 3 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 therein, the dispositions made thereunder were grossly unnatural, unfair and inequittable etc. and inspite of their failure to do so, were the Courts below right in accepting the Wills as genuine, legal and valid documents and dismissing the suit?
3. When it is specifically recited in Ex.B6 to 10 Wills that only after the death of both the testators, the same would come into force and only the 1st testator had died and the other testator viz. The 1st respondent is still alive, can it be taken that the Wills have come into force and admissible in evidence, accept the defence raised by the respondents 2 to 4 & 6 based on the same as sustainable and dismiss the suit?
O.S. No. 379 of 2002: Principal Sub Court, Salem:-
5. In the plaint, it had been contended that Semburamaiyar and his wife Kupputhayammal had a son Radhakrishnan and a daughter Seshammal. The 1st defendant is the widow of Radhakrishnan and the 2nd Page 4 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 to 6th defendants are the children of Radhakrishnan and the 1st defendant. Radhakrishnan also had another daughter Sulochana. She died on 08.10.1990. The plaintiffs are the son of Sulochana. It is thus seen that the plaintiffs and the defendants are close relatives.
6. The properties described in item No.1 of the suit schedule properties originally belonged to Semburamaiyar. He had purchased the same by a sale deed dated 29.08.1925 and registered as Document No.2200 of 1925 on the file of the Registrar, Salem. The 2nd item of the suit schedule properties also belonged to Semburamaiyar, who had purchased the same by a sale deed dated 27.07.1914. The 3rd item of suit properties belonged to Radhakrishnan, the husband of the 1st defendant and the son of Semburamaiyar, who had purchased the same in his name and in the name of his mother Kupputhayammal by a sale deed dated 14.05.1939. On her death, her daughter/sister of Radhakrishnan, Seshammal had executed a release deed dated 13.06.1968 and therefore, that property came to be vested to Radhakrishnan. It had been contended that the suit properties were the properties of Late Radhakrishnan, who Page 5 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 had absolute right, title and interest. He died intestate without executing any Will. The plaintiffs claimed that they are the grandsons of pre- deceased daughter of Radhakrishnan and they are entitled to the share along with his other heirs. They claimed to be entitled together to an undivided 2/14th share in the suit properties.
7. It had been stated that the plaintiffs had sought for division of suit properties into 14 equal parts and put them in separate possession of 2 such shares. Since the defendants had not responded, the suit had been filed seeking partition and separate possession by dividing the three properties into 14 equal parts and to allot two such parts to the plaintiffs.
8. A written-statement had been filed by the 1st defendant and had been adopted by the 6th defendant. In the written-statement, the relationship among the parties had been admitted. It had been however stated that the trace of title of the three properties as given by the plaintiffs are not correct. It had been stated that after the death of Semburamaiyar, the properties devolved only to Radhakrishnan, and he Page 6 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 became the absolute owner of item Nos. 1, 2 and 3 of the suit schedule properties. It had been stated that the other legal heirs have no title or interest over the item Nos. 1 and 2 of the suit schedule properties. With respect to the item No.3 property, it had been stated that it had been purchased in the names of Radhakrishnan and his mother Kupputhayammal. After the death of Kupputhayammal, her daughter/sister of Radhakrishnan, Seshammal had executed a release deed on 13.06.1968 relinquishing her share in the said property in favour of Radhakrishnan. Therefore, Radhakrishnan had become the absolute owner of that property. It had been therefore stated that Radhakrishnan was the absolute owner of all the three items of the suit properties. It had been further stated that the plaintiffs are not entitled for any share in the suit property, much less, 2/14th share.
9. It had been further stated that Radhakrishnan had executed a registered Will along with the 1st defendant giving life interest to his wife /1st defendant and absolute right in specific shares to the 2nd to 5th defendants and also to the plaintiffs in respect of the suit schedule Page 7 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 properties. The Will was dated 30.10.1998. The Will would come into effect on the death of Radhakrishnan and also of the 1st defendant. It had been stated that the parties had divided the property in accordance with the shares allotted under the Will. It had been therefore stated that the suit property cannot be divided as sought for by the plaintiffs and will have to devolve in accordance with the Will executed by Radhakrishnan. It had therefore been stated that the suit, therefore, has to be dismissed.
10. On the basis of the above pleadings, the learned Principal Sub Court, Salem had framed the following issues:-
1. Whether the plaintiffs had given the details of title of item Nos. 1 and 2 of the suit properties correctly?;
2. Whether Kupputhayammal had any share in item Nos. 1 and 2 properties?;
3. Whether the plaintiffs are entitled to an undivided 2/14th share in the suit schedule properties?;
4. Whether the plaintiffs and the defendants had been in joint possession and enjoyment of the suit properties?;
5. To what other reliefs are the plaintiffs entitled to? Page 8 of 56
https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 Thereafter, the issues were re-framed as follows:-
1. Whether the Will dated 30.10.1998 is a true and genuine document and whether it would bind the parties to the suit?;
2. Whether the plaintiffs are entitled to an undivided 2/14th share in the suit schedule property?, and
3. To what other reliefs are the parties entitled to?.
11. During trial, the 1st plaintiff had examined himself as PW1. The 1st defendant had examined herself as DW1 and she also examined two other witnesses as DW2 and DW3. The plaintiffs marked Exs. A1 to A4. Ex.A1 was the true copy of the Sale Deed dated 29.08.1925, Ex.A2 was the true copy of the Wall Agreement dated 26.09.1957, Ex.A3 was a true copy of the Sale Deed dated 14.05.1939 and Ex.A4 was a true copy of the Relinquishment deed dated 13.03.1968. The defendants marked Exs. B1 to B10. Ex.B1 was the original of the Sale Deed dated 27.07.1914, Ex.B2 was the original of Ex.A1. Ex.B3 was the original of the Ex.A3, Ex.B4 was the original of Ex.A4. Ex.B5 was the Partition cum Release Deed dated 17.09.1969. Exs. B6 to B10 were the originals of the Wills dated 30.10.1998.
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12. On the basis of the pleadings and evidence adduced, the learned Principal Sub Judge, Salem, held, with respect to the 1st issue, viz., whether the Wills dated 30.10.1998 was a true and genuine document, that they were true and genuine documents, after examining the trace of title of the three separate properties.
13. The defendants had examined DW2 Ramalingam who stated that he knew the plaintiffs and the defendants. He was the brother of the 1st defendant. He stated that both Radhakrishnan and the 1st defendant had executed 5 separate Wills dated 30.10.1998. He had signed as a witness in the said documents. He had further stated that Radhakrishnan was in a sound and disposing state of mind. He had stated that according to the directions of Radhakrishnan, the Wills had been prepared. He spoke about the preparation of the Wills, about the execution of the Wills and about the attestation of the Wills.
14. The plaintiffs had also examined DW3, C.S.Krishna Rao, who Page 10 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 was the scribe and who prepared the Wills. He again stated that the Wills had been prepared in his office near the Sub-Registrar Office and that both Radhakrishnan and the 1st defendant came at 10.00 a.m. and they read the Wills and thereafter, they understood the Wills, and accepted that they were in proper form and thereafter, they had signed the Wills. He also spoke about the preparation, execution and attestation of the Wills. He further stated that Radhakrishnan was in a sound and disposing state of mind.
15. In view of the evidence of DW2 and DW3, it had been held by the Principal Sub Judge, Salem that Exs.B6 to B10, the Wills were true and genuine documents and that they would bind the parties to the suit.
16. With respect to the 2nd issue, it had been held that the plaintiffs were not entitled to partition and separate possession of 2/14th share.
17. With respect to the 3rd issue, it had been held that since the Wills had been proved in the manner known to law, the plaintiffs were Page 11 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 not entitled to any relief and therefore, the learned Principal Sub Judge had dismissed the suit with costs.
A.S. No. 54 of 2008: Principal District Court, Salem:-
18. The plaintiffs then filed the above Appeal Suit, which came up for consideration before the Principal District Court, Salem on 12.11.2008. The Principal District Judge had framed the following points for consideration under Order XLI Rule 31 of the Code of Civil Procedure, 1908:-
1. Whether the deceased Radhakrishnan and his wife the 1st defendant Dhanalakshmi had executed five separate Wills dated 30.10.1998 in favour of the plaintiffs and defendants 2 to 4 and 6?
2. Whether the claim of the defendants under the Wills is premature?
3. Whether the plaintiffs are entitled to partition and separate possession of their 2/14th share as claimed in the plaint?
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19. The learned Principal District Judge again re-appraised the evidence adduced. He also examined that one of the executant of the Will had been examined as DW1 and one of the attestors had been examined as DW2 and the scribe had been examined as DW3. He further noted that all the 5 separate Wills dated 30.10.1998 had been marked as Exs.B6 – B10. He further pointed out that the property in Ex.B6 was given to the 3rd defendant, the property in Ex.B7 was given to the 2nd defendant, the property in Ex.B8 was given to the 4th defendant, the property in Ex.B9 was given to the 6th defendant, and the property in Ex.B10 was given to the plaintiffs.
20. He further observed that any Will should be proved by examining atleast one of the attestors to the Will. It should have been attested by one or two persons. He also observed that the attestors should have seen the executants signing the Will and they must also sign in the presence of the executants and in each other presence. Page 13 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009
21. He then examined the evidence of DW2, who is the brother of the 1st defendant, who had stated that the testator Radhakrishnan was in a sound and disposing state of mind while executing the Wills. He also stated that he was present at the time of execution of the Wills. He also stated that the Wills were typed and the executors and testators read the Wills and thereafter, they had been presented in the office of the Sub- Registrar for registration.
22. The learned Principal District Judge then examined the evidence of DW3, who was the scribe and who stated that the testator and the testatrix gave instructions to prepare the Wills about 3 days before and accordingly, he had prepared the draft Wills and thereafter, typed the Wills and read over the same to the testator and testatrix in the presence of the witnesses and thereafter, got the signatures of the testator and testatrix. He also stated that the witnesses signed the Wills in the presence of the testator and testatrix.
23. The learned Principal District Judge was of the opinion that there was complete compliance of Section 68 of the Indian Evidence Act, Page 14 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 1872 and that the 5 Wills had been proved in the manner known to law. In view of the above said findings, the learned Principal District Judge dismissed the Appeal Suit and confirmed the judgment and decree of the Trial Court dismissing the Suit with costs.
S.A. No. 1059 of 2009:-
24. The Second Appeal had been admitted on the following three substantial questions of law:-
“1. Whether the respondents 1 to 4, and 6, who have propounded Ex.B6 to B10 viz., Wills are not bound to prove that the said Wills are genuine, legal and valid documents and also come into force and inspite of their failure to do so, were the Courts below right in relying on those Wills and dismissing the Suit?
2. When the respondents 1 to 4 & 6, who propounded Ex.B6 to 10 Wills, are not bound to clear the suspicious glaring on the face of same, including their active participation in the preparation, execution, attestation and registration by signing as witnesses Page 15 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 therein, the dispositions made thereunder were grossly unnatural, unfair and inequittable etc. and inspite of their failure to do so, were the Courts below right in accepting the Wills as genuine, legal and valid documents and dismissing the suit?
3. When it is specifically recited in Ex.B6 to 10 Wills that only after the death of both the testators, the same would come into force and only the 1st testator had died and the other testator viz. The 1st respondent is still alive, can it be taken that the Wills have come into force and admissible in evidence, accept the defence raised by the respondents 2 to 4 & 6 based on the same as sustainable and dismiss the suit?
25. All the three substantial questions of law relate to the proof of Exs.B6 to B10, the 5 separate Wills dated 30.10.1998 executed by both Radhakrishnan and the 1st defendant. Under each Will separate portions had been allotted in the suit properties to the 2nd - 5th defendants and also Page 16 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 to the two plaintiffs.
26. Both the Courts below had held that all the 5 Wills had been proved in the manner known to law and therefore, had dismissed the suit filed by the plaintiffs seeking for partition and for separate possession.
27. For the sake of convenience, the parties would be referred to as plaintiffs and defendants. The plaintiffs are the appellants in the Second Appeal and the defendants are the respondents in the Second Appeal.
28. Heard arguments advanced by Mr.T.P.Manoharan, learned Senior Counsel appearing on behalf of the plaintiffs and Mr.I.Abrar Mohd. Abdullah, learned counsel for the defendants.
29. It had been contended by Mr.T.P.Manoharan, learned Senior Counsel appearing for the plaintiffs that the 3 questions revolved around the proof of Wills. The learned Senior Counsel stated that since the testatrix, who was one of the executant of the Will was alive, all the 5 Page 17 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 Wills could not be technically stated to have come into effect. She had been granted life interest and only on her death, the properties would devolve in accordance with the terms reduced in the Wills.
30. The learned Senior Counsel further pointed out the irrational manner of division of the properties and had stated that in the Wills, the property of 319 sq. ft. alone had been given to the 2 plaintiffs with a width of just 7 feet which would make it impractical and impossible for the said area to be put into any effective use.
31. The learned Senior Counsel further pointed out that the 3rd defendant had been granted 2028 sq. ft. Both the testator and testatrix were residing in his house and therefore, the learned Senior Counsel stated that there was a strong possibility of the 3rd defendant exercising influence over the testator and testatrix.
32. He further submitted that one of the attesting witnesses who had been examined viz., DW2, was the own brother of the 1st defendant and was therefore, interested in an advantageous distribution of the Page 18 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 property for the defendants. He further pointed out that in the written- statement, it had been contended by the 1st defendant, who was the joint testatrix that the Wills had come into effect even when she was still alive. She was examined as a witness. It was further pointed out that the second to sixth defendants had also signed alternatively as attesting witnesses. They were also beneficiaries, but they were not examined as witnesses.
33. The learned Senior Counsel pointed out that the plaintiffs had a reasonable right to expect the second to sixth defendants to graze the witness box and subject themselves for cross-examination on the circumstances surrounding the execution of the Wills. It had been further argued that the other attesting witness was DW2, who alone had been examined. DW3 was the scribe. The 1st defendant was aged 71 years at the time of tendering evidence. The learned Senior Counsel pointed out that the Wills had not come into effect, since she was still alive.
34. The learned Senior Counsel further pointed out that there was no compliance of the mandatory provision of Section 63(c) of the Indian Succession Act, 1925.
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35. There was also an assertion by PW1 during his evidence that the testator, Radhakrishnan's eye-sight was failing. There was no cross- examination on that particular aspect. In view of that fact, it was argued that it should be taken that there was an admission of that particular assertion made by the PW1. There was also no direct suggestion put that Radhakrishnan was mentally sound at the time of execution of the Wills.
36. The learned Senior Counsel took strong exception over the fact that the beneficiaries had signed the Wills as witnesses. The Wills had not been produced for 4 ½ years. Their execution had been revealed only in the written-statement in the year 2003. Even in the written-statement, there was assertion only about 4 Wills and during evidence, 2 further Wills had been produced. Even the testatrix was a beneficiary under the Wills.
37. The learned Senior Counsel also pointed out Section 101 of the Indian Evidence Act, 1872, and argued that the burden was entirely on the defendants, who had propounded the Wills to remove all suspicions Page 20 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 and establish that the Wills had been executed with free mind, voluntarily and without any coercion or influence.
38. The learned Senior Counsel pointed out that the very fact that the other beneficiaries /children of Radhakrishnan and the 1st defendant had also signed the Wills, would show that there was a direct influence exercised on both the testator and the testatrix.
39. The learned Senior Counsel further pointed out that the learned Principal Sub Judge had shifted the burden on the plaintiffs to prove that the Wills had not been executed in the proper manner and it was argued that there cannot be any shift in that burden and the burden remains on the propounder of the Wills to prove the Wills. The onus of those contesting the validity of the Wills was only to raise suspicious circumstances and to establish those facts. The learned Senior Counsel, therefore, stated that both the Courts below had seriously erred in coming to a conclusion that the Wills had been proved in manner known to law.
40. Mr. I.Abrar Mohd. Abdullah, learned counsel for the Page 21 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 defendants, however, contested the arguments advanced. The learned counsel stated that it was only natural that all the sons and daughters would sign the Wills particularly when both the parents had executed the Wills. He contended that evidence of DW2 and DW3 were clear and categorical that Radhakrishnan was in a sound and disposing state of mind when the Wills had been executed by him and by the 1st defendant.
41. The learned counsel further stated that both DW2 and DW3 are natural witnesses, particularly, DW3, who had stated that he had received instructions to prepare the Wills about 3 days in advance and thereafter, had prepared draft Wills and thereafter, had read them over to the testator and the testatrix and only when they were satisfied, the originals were prepared.
42. The learned counsel stated that the Wills had been registered which also draws a presumption under Section 114-e that an official act had been regularly performed in the manner known to law and in the manner approved by law.
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43. The learned counsel argued that since the Wills had been proved in the manner known to law, the suit for partition naturally has to fail. He further pointed out that the plaintiffs had also been granted a share in the properties and had not been totally disinherited. The plaintiffs have expressed dissatisfaction over the area of the property granted to them. That is a different issue, but they cannot therefore claim, that the Wills should be held to have been not proved in the manner known to law. The learned counsel stated the facts had been comprehensively settled by both the costs and therefore, that the Second Appeal will necessarily have to be dismissed.
44. I carefully considered the arguments advanced and perused the materials placed on record.
45. The substantial questions of law which have been framed are:-
“1. Whether the respondents 1 to 4 and 6, who have propounded Ex.B6 to B10 viz., Wills are not bound to prove that the said Wills are genuine, legal and valid documents and also come into force and inspite of Page 23 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 their failure to do so, were the Courts below right in relying on those Wills and dismissing the Suit?
2. When the respondents 1 to 4 & 6, who propounded Ex.B6 to 10 Wills, are not bound to clear the suspicious glaring on the face of same, including their active participation in the preparation, execution, attestation and registration by signing as witnesses therein, the dispositions made thereunder were grossly unnatural, unfair and inequittable etc. and inspite of their failure to do so, were the Courts below right in accepting the Wills as genuine, legal and valid documents and dismissing the suit?
3. When it is specifically recited in Ex.B6 to 10 Wills that only after the death of both the testators, the same would come into force and only the 1st testator had died and the other testator viz. The 1st respondent is still alive, can it be taken that the Wills have come into force and admissible in evidence, accept the Page 24 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 defence raised by the respondents 2 to 4 & 6 based on the same as sustainable and dismiss the suit?
46. I would take up all the 3 substantial questions of law together, since the 1st substantial question of law relates to the burden of proof of the Wills, Exs.B6 to B10 and whether the Courts below were right in relying on the Wills when they had not been come into force, since the 1st defendant /one of the testators to the Wills was still alive and whether the fact that there was active participation of the defendants in the preparation of the Wills was a factor to have been considered by the Courts below to hold that the Wills were not natural and should therefore be rejected and the 3rdsubstantial question of law was again whether the Wills could have come into force since the 1st defendant was still alive and had signed the Wills as a testatrix.
47. The genealogy of the family is given below:-
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48. There are 3 items of suit property. The 1st and 2nd items of suit property had been purchased by one Semburamaiyar. His wife was Kupputhayammal. There is no dispute about the fact that he had purchased the 1st and 2nd items of suit property. The documents in that regard had been produced during trial by both the plaintiffs and by the defendants and been marked as Exs.A1, B1 and B2 and B3. The 3rd item of suit property had been purchased by Kupputhayammal and her son Radhakrishnan. There is again no dispute about this particular fact. This sale deed had been marked as Exs. A3 and B3. On the death of Kupputhayammal, the property devolved to Radhakrishnan/her son and also her daughter Seshammal, who had executed a release deed relinquishing her share in favour of Radhakrishnan. This release deed had been marked as Exs.A4 and B4. The property thus devolved upon Radhakrishnan.
49. It is the contention of the defendants that all the 3 properties fell to the share of Radhakrishnan. The only issue is whether Radhakrishnan died intestate or died leaving behind the Wills marked as Page 27 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 Exs. B2 to B6.
50. It is the case of the plaintiffs that Radhakrishnan died intestate. He had a daughter viz., Sulochana. The plaintiffs are the two sons of Sulochana. The first defendant is the wife of Radhakrishnan. His children are 2nd - 6th defendants. The plaintiffs claimed that if he had died intestate, his daughter Sulochana would have got an undivided 1/7th share in the 3 suit schedule properties. It is only on that basis that they jointly claimed 2/14th share in the suit property. They had therefore filed the suit since their demand for partition had not been answered by the defendants.
51. The 1st defendant had filed a written-statement. In the written- statement filed by the 1st defendant /wife of Radhakrishnan, it had been contended that Radhakrishnan had executed registered Wills along with her /1st defendant giving her /1st defendant life interest in the suit schedule propertiers and absolute right later, to the 2nd, 3rd, 4th and 5th defendants and also to the plaintiffs.
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52. The Wills had been executed on 30.10.1998. It had been very specifically stated in the written statement as follows:-
“the above will has to come into effect on the demise of said Radhakrishnan and this defendant.” Thus, it is the case of the 1st defendant in her written-statement that the Will would come into effect only after her death. Radhakrishnan had pre- deceased her. In the 5 Wills, she had been given life interest, which means that she still retained an interest and right over the properties. None of the defendants or the plaintiffs have got absolute right and title over the properties. They would get absolute right and title only when the 1st defendant also dies.
53. The Second Appeal has been pending in this Court from the year . During the pendency of the Second Appeal, the 1st defendant had died and a memo had been filed on 31.07.2025 and recorded by order dated 31.07.2025. The other defendants are her legal representatives. Therefore, as on that date, it could be safely presumed that the Wills had come into effect, but not on the date of the pronouncement of the Page 29 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 judgments by the Trial Court or by the First Appellate Court.
54. The Wills had been marked as Exs.B6 – B10. Under Ex.B6, a share in the property measuring 2028 sq. ft. was given to the 3 rd defendant. Under Ex.B7, a share in the property measuring 842 sq. ft. was given to the 2nd defendant. Under Ex.B8, a share in the property measuring 805 sq. ft. was given to the 4th defendant. Under Ex.B9, a share in the property measuring 620 sq. ft. was given to the 6th defendant. Under Ex.B10, a share in the property measuring 319 sq.ft. was given to the plaintiffs.
55. It is also to be noted that both the testator and testatrix were residing along with the 3rd defendant. The 3rd defendant had got a disproportionately larger extent of land of 2028 sq. ft., when compared with the bequeath to the other legatees, particularly the plaintiffs. The thrust of the arguments by the learned Senior Counsel appearing on behalf of the plaintiffs is that there was exercise of undue influence over the execution of the Wills by the defendants and thereby a minor share in Page 30 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 the properties, which could not be put to any use at all had been bequeathed to the plaintiffs. It had been contended that the plaintiffs could very well have been disinherited rather than giving them a small miniscule share of 319 sq. ft. with a 7 feet width, which could not be put to any use at all.
56. It had been contended by Mr.T.P.Manoharan, learned Senior Counsel that there was no compliance of the mandatory stipulations as provided in Section 63(c) of the Indian Succession Act, 1925.
57. Section 63(c) of the Indian Succession Act,1925, is as follows:-
“63. Execution of unprivileged Wills.— ....
(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 Page 31 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 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.” A careful perusal of the provision shows that a Will should be attested by two or more witnesses, and more importantly, both the witnesses must see the testator sign the Will in their presence and by the direction of the testator or receive an acknowledgment from the testator of the signature and each of the witnesses shall sign the Will in the presence of the testator and they must also witness the other signee attesting the witness.
Thus, if there is a testator and two witnesses, all three of them must be together and each one of them must see the other sign and their signature must be affixed in the presence of all three. This provision is mandatory in nature.
58. It is also required that the fact that the Will had been attested in the aforesaid manner should also been noted in the Will to give the Will any semblance of legality, validity and genuinity. Page 32 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009
59. The Wills, Ex.. B6 – B10 must have to be examined to determine whether they satisfy the mandatory provision under Section 63(c) of the Indian Succession Act, 1925. This is the first step in examining the genuinity of any Wills.
60. All the Wills, Exhibits B6-B10 had been registered. That would not however mean that they have been properly executed and that there has been compliance of the stipulations under Section 63(c) of the Indian Succession Act, 1925. The registration of the Wills do not indicate that the Wills had been proved in the manner known to law. To prove the Wills, the attesting witnesses must be examined as stipulated in Section 68 of the Indian Evidence Act /Section 67 of the Bharatiya Sakshya Adhiniyam (BSA), 2023. They both stipulate that one of the attesting witnesses must be examined in Court.
61. In the instant case, DW2 is an attesting witness. He had been examined in Court. He had spoken about the attestation of the Wills. It has to be however examined whether his evidence is supported by the documents themselves viz., the Wills Exs. B6 – B10. There cannot be any Page 33 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 oral evidence adduced as against a written document. Section 91 of the Indian Evidence Act, 1872 is clear on that aspect. If a written document states a particular fact, there cannot be any oral evidence adduced contrary to that particular fact. Similarly, if a written document does not state a fact unless there is other corresponding or corroborating evidence available, oral evidence cannot substitute what was not stated in a written document.
62. The stipulations mandated under Section 63 (c) of the Indian Succession Act, 1925, should be noted in the Wills. In the Wills Exs.B6 to B10 both the testator and testatrix had signed at each page. Thereafter, the witnesses have signed. They are R.Geetha/ 6th defendant, R.Padmini/ 4th defendant, C.R.Sundararajan/ 2nd defendant, C.V.Balasubramaniyar, Ka.Ramalingam/ DW1 and DW3 other individuals in Ex.B6. In Ex.B7, the same individuals had signed and in Ex.B8, in addition to the beneficiaries mentioned above R.Gopinathan/ 3rd defendant had also signed. In Ex.B9, R.Geetha/ 6th defendant had not signed, but the 2nd to 4th defendants have signed as witnesses. In Ex.B10, the 2nd to 4th and 6th Page 34 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 defendants have signed. This fact has been pointed out by the learned Senior Counsel as a factor which had not been examined by both the Courts below.
63. The learned Senior Counsel appearing on behalf of the plaintiffs argued that when the beneficiaries had been actively involved in the preparation of the Wills, then the Courts should have viewed its execution with much more circumspection since the Will should reflect the wishes of the testators alone.
64. The learned Senior Counsel placed reliance on the judgment of the Hon'ble Supreme Court of India reported in 2023 SCC OnLine SC 1263, Dhani Ram (died) Through Lrs. And Others -vs-Shiv Singh wherein the Hon'ble Supreme Court had examined Section 63(c) of the Indian Succession Act, 1925. Paragraph Nos. 19 to 22 are extracted as follows:-
“19. Section 63 of the Succession Act prescribes the mode and method of proving a Will and, to the extent relevant, it reads as under : -
Page 35 of 56
https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 “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). …….
(b). …….
(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 acknowledgment 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.”
20. It would also be necessary to take note of Section 71 of the Evidence Act. This provision states as follows:
“71. Proof when attesting witness denies the execution. -If the attesting witness denies or does Page 36 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 not recollect the execution of the document, its execution may be proved by other evidence.”
21. It is well settled that mere registration would not sanctify a document by attaching to it an irrebuttable presumption of genuineness. The observations of this Court in Rani Purnima Debi v. Kumar Khagendra Narayan Deb1, which were referred to by the Himachal Pradesh High Court, are of guidance in this regard and are worthy of extraction. These observations read as under:
“There is no doubt that if a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a Will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the Will. But if the evidence as Page 37 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 to registration shows that it was done in a perfunctory manner, that the officer registering the Will did not read it over to the testator or did not bring home to him that he was admitting the execution of a Will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the Will) that the testator knew that it was a Will the execution of which he was admitting, the fact that the Will was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering. Law reports are full of cases in which registered Wills have not been acted upon ……… Therefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a Will; though the fact that there has been registration would be an important circumstance in favour of the Will being genuine if the evidence as to registration establishes that the testator admitted the execution of the Will after knowing that it was a Will the execution of which he was admitting.”
22. We may also refer to Janki Narayan Bhoir v. Narayan Namdeo Kadam2, wherein this Court held that, to prove that Page 38 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 a Will has been executed, the requirements in clauses (a), (b) and (c) of Section 63 of the Succession Act have to be complied with. It was pointed out that the most important point is that the Will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will or must have seen some other person sign the Will in the presence of and by the direction of the testator or must have received from the testator a personal acknowledgment of his signature or mark or of the signature or mark of such other person and each of the witnesses has to sign the Will in the presence of the testator. It was further held that, a person propounding a Will has got to prove that the Will was duly and validly executed and that cannot be done by simply proving that the signature on the Will was that of the testator, as the propounder must also prove that the attestations were made properly, as required by Section 63(c) of the Succession Act. These observations were affirmed and quoted with approval by this Court in its later judgment in Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria (2008) 15 SCC 365.”
65. It had been very categorically held that mere registration would not sanctify a document by attaching irrebuttable presumption of genuineness. It had been further held that the mere fact that the Will had Page 39 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 been registered would not be sufficient to dispel suspicions regarding the execution of the Will. It had been further observed that the fact that the Will was registered would not be of much value. It had been further held that the most important point is that a Will has to be attested by two or more witnesses and that there has to be complete compliance of the mandatory stipulations under Section 63(c) of the Indian Succession Act.
66. In the instant case, a perusal of the Wills shows that it had not been stated that the stipulations as required under Section 63(c) of the Indian Succession Act have been complied with. DW2 had been examined as one of the attesting witnesses, but the over-riding effect is that the beneficiaries have also signed in the Will. That is a compelling factor. It is under those circumstances that the learned Senior Counsel appearing on behalf of the plaintiffs had widened the scope of the arguments by stating that the beneficiaries should have also been examined or atleast one of them should have come forward to subject him/her for examination in Court. Their absence gives rise to a presumption that the case stated up by them has a ring to falsify. Page 40 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009
67. In 2010 (10) SCC 512 in Man Kaur -vs- Hartar Singh Sanghaat para 14, it had been held by the Hon'ble Supreme Court as follows:-
“14. In Vidhyadhar v. Manikrao [(1999) 3 SCC 573] this Court reiterated the following well-recognised legal position:
(SCC pp. 583-84, para 17) “17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct….”” This position will have to be examined in conjunction with Section 101 of the Indian Evidence Act which places the burden of proof on the person, who asserts a certain fact to exist.
68. It had been held in 2011 (12) SCC 220 in Rangammal -vs- Kuppuswami and another in paragraph 21 as follows:-
“21. Section 101 of the Evidence Act, 1872 defines “burden of proof” which clearly lays down that:
“101.Burden of proof.—Whoever desires any court to give judgment as to any legal right or liability Page 41 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” Thus, the Evidence Act has clearly laid down that the burden of proving a fact always lies upon the person who asserts it. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party.”
69. In the instant case, in the written-statement, only 4 Wills been projected and even in the written-statement, it is the case of the 1st defendant that the Wills would come into effect only on her death. She died only pending the Second Appeal. Both the Courts below had not taken the fact that was still alive into consideration. She had been granted life interest over the properties. It is a mute question whether that particular life interest would flower into absolute right or would remain a restricted right. The Court cannot go into issues of Sections 14 (1) and Page 42 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 14(2) of the Hindu Succession Act, 1956, but still so long as she was alive, the defendants cannot claim absolute right under the Wills. They had not obtained the property absolutely to claim that the suit filed by the plaintiffs should be rejected and that the plaintiffs should be non-suited on the ground that under the Wills that the properties had been devolved in a particular manner.
70. There is one further factor, which gives rise for suspicion and which had not at all been considered by both the Courts below, viz., that the 3rd defendant had been the beneficiary of a larger area of the property measuring 2028 sq. ft. This fact has to be examined in conjunction with the statement that both the testator and testatrix were in his house at the time when the Wills were prepared. PW1 had also stated in his statement that Radhakrishnan's eye-sight was failing and on that particular issue, there was no cross-examination.
71. The learned counsel for the defendants, however, placed reliance on the judgment of a learned Single Judge of this Court in Savithri -vs- L.Nagaraj reported in 2022 (2) Law Weekly 379 wherein in Page 43 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 paragraph No. 10, the learned Single Judge had reduced the substantial question of law and in paragraph No.15 had discussed about the validity of the Will produced in that case/ Ex.B2. There was an allegation of the lost eye-sight. It had been stated that even in that case the testator Lingappa had lost his eye-sight, but the said fact had been stated in the Will, Ex.B2 itself. He had stated that he had lost his eyesight since January 2003. The Will was executed on 31.07.2003. The Will was a registered Will. It had been executed before the Sub Registrar Office and the attesting witnesses and the identifying witnesses are one of the same. DW3, an advocate had prepared the Will and had been examined. He was a senior member of the Ooty Bar Association. He had also stated about the failing eye-sight of the testator. The learned Single Judge when presented with that particular evidence had however held that the Will had been proved in the manner known to law. The learned Single Judge had placed reliance on the evidence of the attesting witnesses who stated that they had seen the testator executing the Will who in turn had seen both of them signing the Will as attesting witnesses.
72. In the instant case, there is one distinction, viz., defendants Page 44 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 have not admitted that the testator Radhakrishnan's eye-sight was failing, unlike the judgment reported and relied on in 2022 2 LW 379, referred supra. It is the case of PW1 in the instant case that Radhakrishnan had failing eye-sight. That particular assertion was not tested during cross- examination and not even a suggestion was put on that particular aspect.
73. The learned counsel for the defendants had also placed reliance on the judgment of a learned Single Judge of this Court in K.V.Ramaraj
-vs- K.V.Selvaraj and others reported in 2025 (1) CTC 511with respect to unequal distribution of the property in a Will. The learned Single Judge had relied a series of judgments with respect to the proof of Will and had found that the Will had been duly executed by the testator in the presence of the witnesses out of in a sound and disposing state of mind.
74. The fact in the instant case is that the 3rd defendant in whose house the testator and testatrix had been residing was the beneficiary of a larger area, which factor could have been explained only by the defendants since they were also present at the time of execution of the Wills and had also signed as witnesses to the Wills.
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75. It is for that reason that the learned Senior Counsel appearing on behalf of the plaintiffs had raised a protest found fault with none of the other defendants had come forward to tender evidence and subject themselves for cross-examination. They should have come forward to state as to why the testator and testatrix granted and unequal share to the each of the parties and a very negligible share of 319 sq. ft. with just 7 ft. width in that area to the plaintiffs. They could have cleared the situation by explaining the circumstances surrounding the Will. They had unfortunately taken a conscious decision not to graze the witness-box and not to speak up in support of the Wills and not to subject themselves for cross-examination. That is a crucial factor by examining whether the Wills had been executed in a free and disposing state of mind and with knowledge about the contents of the Wills.
76. The learned counsel for the defendants had placed further reliance on the judgment of the Madras High Court in Renuka Subbu Singh -vs- Kannaiyan reported in 2022 SCC OnLine Mad 1302 wherein Page 46 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 in paragraph No.18, a learned Single Judge listed out some of the factors, which could be listed as suspicious circumstances. One of them is actually, the presence of the beneficiaries and taking part in the execution of the Will.
77. In the instant case, the beneficiaries except the plaintiffs were all present . Therefore, this observation of the learned Single Judge would actually was in line with the thrust of the arguments advanced by the learned Senior Counsel appearing for the plaintiffs.
78. The learned counsel for the defendants further placed reliance on the judgment of a learned Single Judge of this Court in Savithri -vs- L.Nagaraj reported in 2019 4 LW 497. It had been observed that the witnesses had stated that the testatrix had fixed her left thumb impression in his presence in the Will in 6 places and requested them to sign as attesting witnesses.
79. In the instant case, it would have been a far far prudent step to have been taken, if quite apart from DW1, any one of the other witnesses Page 47 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 had also come forward to depose and tender evidence during trial in Court. The Wills do not contain the statement that the testator and the testatrix had signed in the presence of the witnesses and that all the witnesses were present and signed the Wills in the presence of the testator and the testatrix. DW2 and DW3 had stated about that fact, but that should have been written down in writing in the Wills. Section 63(c) of the Indian Succession Act, 1925, makes it mandatory that this aspect must be stated in the Will and that the Will had been prepared under the directions of the testator and the testatrix.
80. The learned counsel for the defendants placed reliance on the judgment of the Hon’ble Supreme Court in K.N.Nagarajappa -vs- H.Narasimha Reddy reported in 2021 18 SCC 263 about the scope of determination of factual issues by the High Court in a Second Appeal and the permissibility of the same.
81. Section 103 of the Code of Civil Procedure gives the authority to the Court to examine an issue of fact, if the evidence on record is sufficient on a particular fact, which had not been determined by the First Page 48 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 Appellate Court or by both the Court of the first instance or which had been wrongly determined by such Courts.
82. In the instant case, the fact that the beneficiaries to the Will had signed as witnesses had not at all been discussed by both the Courts below. The fact that the 1st defendant was alive and therefore, the Wills did not come into existence and could not be acted upon had not been discussed by both the Courts below.
83. In the Wills, there has been no statement made that they had been signed by the testator and the testatrix in the presence of the witnesses and that the witnesses had seen the testator and the testatrix signing the Wills and that they all signed in each of their presence. This fact had not been discussed by both the Courts below.
84. Therefore, this Court necessarily has to, while answering the substantial questions of law, examine the validity of the Wills on the basis of Section 63(c) of the Indian Succession Act, 1925, towards proof of Will. The Court is not giving a divergent view, but only rendering a Page 49 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 finding on a fact, which had been overlooked by both the Courts below.
85. The learned counsel for the defendants placed reliance on the judgment of the Hon’ble Supreme Court in Mallanaguoda -vs- Ninganagouda reported in 2021 16 SCC 367 for the proposition that the judgment of the First Appellate Court should not be interfered with by the High Court in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure, unless there is a substantial question of law to be answered.
86. The requirement for compliance of the mandatory provision under Section 63(c) of the Indian Succession Act, 1925, is a substantial question of law. If there is no compliance on a plain reading of a Will, this Court should point out and this Court has pointed out that fact of non- compliance.
87. The learned counsel for the defendants further relied on the judgment of the Hon'ble Supreme Court in State of Haryana -vs- Harnam Singh (death through Legal Representatives reported in 2022 2 Page 50 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 SCC 238 wherein, it had been held that the requirements under Section 63 of the Indian Succession Act, 1925, read with Section 68 of the Indian Evidence Act, 1872, must inspire confidence and be credible and requirements of Section 63 of the Indian Succession Act, 1925, cannot be fulfilled mere upon showing mechanical or technical compliance with the stipulation. In that case, the scribe of the Will as well as the two attesting witnesses had tendered evidence supporting the case of the propounder of the Will. Both the trial Court and the First Appellate Court had disbelieved their testimony. There were contradictions in the evidence of the attesting witnesses. It was held that Section 63 of the Indian Succession Act, 1925, was not fulfilled and the fact finding Courts did not find that the evidence met the stipulated requirements. It was held that the High Court cannot override the particular fact which had been decided by both the Courts below.
88. In the instant case, it is an issue of a fact not at all being addressed by the Courts below. They have never given a finding on Section 63(c) of the Indian Succession Act, 1925. They had never examined whether the Wills Exs.B6 – B10 had the requisite mandatory Page 51 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 requirements as stipulated under Section 63 (c) of the Indian Succession Act, 1925. They had never examined the fact whether the Wills could have come into effect in spite of the fact the 1st defendant was alive. Therefore, I hold that both the Courts below have failed to properly appreciate the documents filed viz., Exs. B6 – B10. Any appreciation should be on the basis of the documents, on a reading of the documents and thereafter, the evidence in support of the said documents. When the documents themselves do not reflect compliance of the mandatory provisions under Section 63 (c) of the Indian Succession Act, 1925, no evidence can overcome that particular defect in that document.
89. In view of these reasons, with respect to the 1st substantial question of law, I hold that the propounders of the Wills, viz., the 2nd -6th defendants, who were jointly interested in ensuring that the Wills had proved, have not proved the Wills in the manner known to law, and particularly, had not established compliance under Section 63(c) of the Indian Succession Act, 1925.
90. I further hold that the fact that the 2nd – 6th defendants had Page 52 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 actively participated in the Will by affixing their signatures as witnesses but have still not come forward to depose the circumstances surrounding the division of the properties necessitates a strong presumption to be drawn against them and therefore, I answer the 2nd substantial question of law, that the Courts below were not correct in accepting the Wills as genuine and valid documents.
91. With respect to the 3rd substantial question of law, even though as on date, the Wills would have come into effect, the trial Court and by the First Appellate Court should have examined the fact that the first defendant was still alive and that the Wills would come into effect only on her death when alone the 2nd - 4th and 6th defendants would get absolute right over the properties along with the two plaintiffs. To that extent, I hold that both the Courts below had erred in the examination of the evidence.
92. In view of all these facts, I would set aside the judgments of both the trial Court and the First Appellate Court. The Second Appeal stands allowed. No costs.
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93. A preliminary decree is passed in the suit filed by the plaintiffs that they are entitled to partition of undivided 2/14th share of the suit properties. Accordingly, the parties may apply to the trial Court by filing application seeking final decree in the aforesaid terms.
94. Though both the Courts below had dismissed the Original Suit and the Appeal Suit with costs, I would not grant costs, since each one of the parties have now been declared entitled to an equal in the properties and creation of further animosity by grant of costs would not be prudent.
19.08.2025 Index: Yes/No Internet: Yes/No Speaking /Non-speaking order NCC : Yes / No Maya To
1. The Principal District Judge, Salem
2. The Principal Subordinate Judge, Salem.
3. The Section Officer, Page 54 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 Vernacular Section, High Court, Madras.
Page 55 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm ) S.A. No. 1059 of 2009 C.V.KARTHIKEYAN, J.
Maya S.A. No. 1059 of 2009 Dated : 19.08.2025 Page 56 of 56 https://www.mhc.tn.gov.in/judis ( Uploaded on: 14/10/2025 04:27:52 pm )