Madras High Court
M.Uma vs Ramu @ Ramalingam (Died) on 25 March, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
A.S(MD)No.53 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.03.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
and
THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN
A.S(MD)No.53 of 2015
and
C.M.P.(MD)Nos.12131 of 2016, 4058 of 2018, 6691 of 2020,
5589 of 2020 & M.P(MD)No.1 of 2015
M.Uma ... Appellant / Defendant
Vs.
1.Ramu @ Ramalingam (Died)
2.Lakshmi Palanikumar ... Respondents 1 & 2 /
Plaintiffs
3.Ganesh
(R.3 is impleaded vide order of
this Court dated 09.03.2021 in
C.M.P(MD)No.4188 of 2017)
4.Girija Ramalingam
5.Vasantha
(R.4 & R.5 are brought on record
as LRs of the deceased 1st respondent
vide order of this Court dated 13.09.2024
made in C.M.P(MD)No.53 of 2015) ... Respondents
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A.S(MD)No.53 of 2015
Prayer : Appeal Suit filed under Section 96 of Civil Procedure Code to
set aside the judgment and decree of learned III Additional District
Judge, Madurai (PCR) dated 24.09.2014 passed in O.S.No.122 of 2007
and to dismiss the suit with costs throughout.
For Appellant : Mr.V.Ramakrishnan
For Respondents : Mr.S.Manohar for R2, R4 & R5
Mr.S.Vellaichami for R3
JUDGMENT
(Judgment of the Court was made by G.R.SWAMINATHAN, J.) This appeal arises out of a suit for partition.
2.One Manikkam Pillai got married to Parukutty Ammal. Through the wedlock, five children were born. They are Ramu @ Ramalingam, Ganesh, Uma, Rani @ Lakshmi and Veerapathiran. Veerabathiran pre- deceased the parents. Manikkam Pillai passed away on 18.09.2005. Parukutty Ammal pre-deceased him on 01.04.2005. Claiming 2/3rd share in the suit schedule properties, Ramu @ Ramalingam and Lakshmi Palanikumar filed O.S.No.122 of 2007 on the file of III Additional District Judge (PCR), Madurai. The suit schedule properties are three in 2/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 05:02:47 pm ) A.S(MD)No.53 of 2015 number. The sole defendant in the suit was their sister Uma. The case of the plaintiffs is that their father Manikkam Pillai purchased Suit Item-1 from his father vide two sale deeds dated 30.12.1964 and 09.03.1966 and put up constructions thereon. They would further claim that their father purchased Item No.2 of the suit schedule properties out of his own funds in the name of the defendant. The third schedule comprised certain bank deposits. But before the trial court itself, the plaintiffs gave up their claim on the third schedule. It is not in dispute that the defendant Uma is physically challenged and remains a spinster. She resided all along with the parents. According to the plaintiffs, the defendant obtained the signatures of the father and fabricated a Will in her favour.
3.The defendant filed her written statement controverting the plaint averments. She asserted that the suit item 2 is her absolute property. As regards Suit Item No.1, it became her absolute property by virtue of the Will dated 18.02.2002 executed by the father out of his own will and volition. It was duly executed, attested and registered. On the same day, Parukutty Ammal also executed a Will in her favour bequeathing her immovable property at Thandikudi, Dindigul. While the father attested 3/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 05:02:47 pm ) A.S(MD)No.53 of 2015 the Will executed by the mother, the mother executed the Will attested by the father. According to the defendant, such bequests were made in view of her special condition and physical incapacity.
4.Based on the rival pleadings, the trial Court framed the following issues:
“1.Whether the Plaintiffs are entitled to 1/3 share in the suit properties as alleged in the plaint?
2.Whether the plaintiffs are entitled to get a Preliminary decree for Partition?
3.To what relief the plaintiffs are entitled?” Thereafter, the trial Court framed the following additional issues:
“1. Whether the registered Wills dated 12.5.1989, 13.9.1993 and 18.2.2002 executed by Late Mr.Manickam Pillai have been executed by him out of undue influence and coercion of the defendant?
2. Whether the letter dated 13.9.2005 is a true and genuine document?
3. Whether the letter dated 13.9.2005 can be construed as a Will of Late.Mr.V.Manickam Pillai?
4. Whether the suit item No.2 was owned by Mr.V.Manickam Pillai?4/23
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5. Whether the plaintiffs are in joint possession and enjoyment of the suit properties along with defendant to invoke section 37(2) of the Tamil Nadu Court Fees and Suit Valuation Act?
6. Whether the suit is properly valued and proper court fee is paid?
7. Whether the suit is bad for seeking partial partition?”
5.The second plaintiff examined herself as PW1. One M.Balamurugan was examined as PW2. Ex.A1 to Ex.A12 were marked. The defendant examined herself as DW.1. Ganesh, her brother, who was not impleaded as a party to the proceedings was examined as DW3. Two other witnesses were also examined on her side. Ex.B1 to Ex.B102 were marked.
6.After hearing both sides and considering the evidence on record, the learned trial Judge passed judgment and preliminary decree on 24.09.2014. Each of the plaintiffs and the defendant were given 1/3rd share in the suit first schedule. The suit was dismissed as regards the suit second item. Aggrieved by the grant of preliminary decree in respect of 5/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 05:02:47 pm ) A.S(MD)No.53 of 2015 suit first item, the defendant filed A.S(MD)No.53 of 2015. Aggrieved by the dismissal of the suit as regards the suit second schedule, the plaintiffs filed A.S(MD)No.57 of 2018. During the pendency of these proceedings, the first plaintiff passed away and his legal heirs have been brought on record.
7.The learned counsel for the appellant reiterated all the contentions set out in the memorandum of grounds of appeal. He also filed detailed written arguments and took us through the same. He submitted that the trial court after rightly rejecting the allegation that the execution of the suit Will was vitiated by suspicious circumstances erred in holding that it was not proved in terms of Section 68 and Section 69 of the Indian Evidence Act, 1872. The suit Will Ex.B8 is a registered document. It was attested by the testator's wife Parukutty Ammal and one Sankaralingam. Witness summon was taken out to the address of Sankaralingam. It was returned with the endorsement that the addressee had left the village three years earlier. The returned summon was marked as court document Ex.C1. Since the whereabouts of one of the attesting witness (Sankaralingam) was not known and the other attesting witness 6/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 05:02:47 pm ) A.S(MD)No.53 of 2015 (Parukutty Ammal) had already died, the defendant/appellant herein had to invoke Section 69 of the Indian Evidence Act. The defendant discharged her burden by examining her brother Ganesh who was acquainted with the handwriting and signatures of their parents Parukutty Ammal (attesting witness) and Manikkam Pillai (testator). The learned counsel placed considerable emphasis on the fact that Ex.C1 is a court record and the endorsement on the returned summon was made by a court official. He contended that examination of the bailiff who made the endorsement was not necessary because it was not challenged by the plaintiffs. The defendant had examined herself as DW.1 and the return of the witness summon was much later. Therefore, there was no occasion for the defendant to speak about the whereabouts of Sankaralingam. It was not the case of the plaintiffs that Sankaralingam was available at some place. Since the defendant is physically challenged, she could not have personally gone to the village where the attestor was known to have resided last. His final contention was that the suit was hit by partial partition. Parukutty Ammal had pre-deceased Manikkam Pillai. Since according to the plaintiffs Parukutty Ammal also died intestate, 1/5th of her share would have devolved on her husband Manikkam Pillai and 7/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 05:02:47 pm ) A.S(MD)No.53 of 2015 formed a part of the estate. Since it was not included, the suit is bad for partial partition. The defendant had specifically raised this plea in her written statement. The plaintiffs had filed O.S No.44 of 2007 on the file of the District Judge, Dindigul seeking share in the mother's property. But it was dismissed for default and no step had been taken to have it restored. The court below casually dismissed the plea of partial partition projected by the defendant. The learned counsel also relied on a number of case laws in support of his contentions. (Kenchegowda vs Siddegowda (1994) 4 SCC 294, Gandhi vs Saminatha Gounder 2006 (1) CTC 267, Alli Sekar vs Ramu 2019-5-L.W. 857, and Karuppayammal vs Samiyappa Gounder (2017) 6 MLJ 689)
8.The learned counsel appearing for contesting respondents/plaintiffs supported the trial court's finding that the suit Will has not been proved. After getting instructions from the plaintiffs, the learned counsel made a statement that the plaintiffs will not institute any further suit for partition and that according to them, no other property is available for partition.
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9.We carefully considered the rival contentions and re-appreciated the evidence on record. The points that arise for determination are as follows :
a) Whether the learned trial Judge was wrong in concluding that the defendant failed to prove the suit Will (Ex.B8 Will dated 18.02.2002)?
b) Whether the Court below ought to have non-suited the plaintiffs on the ground that the suit was bad for partial partition?.
10.In response to the plaintiffs' plea for partition of suit first schedule, the defendant propounded Ex.B8 Will dated 18.02.2002. It is a registered document (Document No.454/2002). It is well settled that mere registration of a Will would not attach to it a stamp of validity and it must still be proved in terms of the legal mandates under the provisions of Section 63 of the Indian Succession Act and Section 68 of the Evidence Act (vide Leela v. Muruganantham 2025 INSC 10). Section 68 of the Indian Evidence Act, 1872 lays down the manner in which a Will has to be proved. It reads as follows:
9/23
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[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 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]” A Will has to be attested by two persons. Ex.B8 Will is said to have been attested by two persons, namely, Parukutty Ammal wife of Manikkam Pillai and R.Sankaralingam son of M.Raja. Parukutty Ammal had predeceased Manikkam Pillai. She passed away in April 2005.
Therefore, the propounder of the Will, namely, Uma was obliged to prove the said Will by examining the other attestor, namely, R.Sankaralingam.10/23
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11.To fulfil the statutory requirement, summon was issued to R.Sankaralingam. The summon had been returned with the following endorsement:
“cj;jput[g;go 5.7.2013e; njjpapy; fl;lisapy; fz;l fpuhkk; brd;W nkw;go rhl;rpahsiu njo tprhhpj;jjpy; nkw;goahh; nkw;go Chpy; Rkhh; 3 tUlkhf Foapy;iy vd;W brhy;ypajhy; nkw;goahh;f;F te;j rhl;rp rkd; efiy xl;lnth> rhh;t[ bra;anth Koahj tpguj;jpw;F nkw;go Ch; fpuhk cjtpahshplk; mj;jhl;rp thq;fpa[k;> ,j;Jld; rhl;rp rkd; efiy M$h; itj;J ,Uf;fpnwd; vd;W cWjpahfr;
brhy;fpnwd;.”
12.The defendant thereupon proceeded on the footing that since Sankaralingam could not be found, she can prove the Will in terms of Section 69 of the Indian Evidence Act. Since the other attestor of the Will was Parukutty Ammal, her mother, she examined her sibling Ganesh to speak about the handwriting and signature of the mother as well as that of the father/testator. According to the learned counsel for the appellant / defendant, the requirements of Section 69 of the Act stood fulfilled.
13.The Court below came to the conclusion that the defendant was 11/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 05:02:47 pm ) A.S(MD)No.53 of 2015 not justified in falling back on Section 69 of the Act. To test the correctness of the said inference, it is necessary to have a look at the statutory provision. Section 69 of Indian Evidence Act is as follows :
“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 hand writing of that person.” It is obvious that to press Section 69 into service, the propounder must prove that the witnesses who attested the suit Will could not be found. It is admitted that one of the witnesses, namely, Parukutty Ammal had already died. The question that has to be answered is whether the defendant had proved that the second attesting witness, namely, Sankaralingam could not be found. This is a fact that has to be established like any other fact. The burden lay entirely on the propounder. Of course, the standard of proof is only preponderance of probabilities. It would have been sufficient to show that the said witness could not be traced in spite of diligent search. The Hon'ble Supreme 12/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 05:02:47 pm ) A.S(MD)No.53 of 2015 Court in the decision reported in (2008) 5 SCC 117 (Chander Kanta Bansal vs Rajinder Singh Anand), while considering the term “diligence”, observed as follows:
“16. The words “due diligence” have not been defined in the Code. According to Oxford Dictionary (Edn. 2006), the word “diligence” means careful and persistent application or effort. “Diligent” means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (18th Edn.), “diligence” means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation.”
14.The solitary act of taking out witness summon to the address of Sankaralingam as mentioned in the suit Will would not satisfy the standard of “diligent search” expected from the propounder of a Will.
The summon was returned with the bailiff's endorsement which has already been extracted earlier. The defendant did not even examine the bailiff. The court on its own had marked the said document as Ex.C1. The nature of enquiry undertaken by the bailiff is not known. The learned counsel appearing for the appellant laboured in his submission that there was no need to examine the bailiff. This contention has to be 13/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 05:02:47 pm ) A.S(MD)No.53 of 2015 rejected. Only if the bailiff had been examined, it would have been possible to elicit the information about the persons from whom he made the enquiry about the living witness. There is nothing on record to show that the bailiff made a thorough and proper enquiry. The nature of enquiry said to have been undertaken by the bailiff is not clear. One cannot rule out the possibility of the bailiff having made the endorsement without actually conducting an enquiry. Even if what the bailiff had endorsed is factually true, it only means that the attestor (Sankaralingam) was not available in the village in question. It was the duty of the propounder to show that even if he was available elsewhere, he could still not be traced.
15.In the decision reported in (2008) 14 SCC 754 (Babu Singh Vs Ram Sahai), the Hon'ble Supreme Court had held that the Will may be proved in the manner indicated in Section 69 ie., by examining witnesses to prove the handwriting of the testator/executant and the attesting witness only in a case where the attesting witness is either dead or out of the jurisdiction of the Court or kept out of the way by the adverse party or cannot be traced despite diligent search. It is not the case of the 14/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 05:02:47 pm ) A.S(MD)No.53 of 2015 appellant / defendant that Sankaralingam was dead. There was no allegation that he was being kept out of the jurisdiction of the Court or that due to physical incapacity, he could not be examined. Those circumstances also will fall within the ambit of the phrase “no such attesting witness can be found”. Therefore, the defendant was obliged to prove that diligent search was undertaken to trace Sankaralingam. For this, there is zero evidence. Nothing stopped the defendant from recalling herself and adducing evidence for attracting Section 69 of the Indian Evidence Act.
16.The discussion of the trial court in this regard is as follows :
“On perusal of immaterial papers, this court is able to find the returned summons which had been taken against the attestor for the hearing date 09.07.2013. (The summon could have been marked by the parties to the suit. But unfortunately not been marked. But fortunately the same is available in the bundle. Therefore to bring the document within the meaning of material paper this court is inclined to mark the same suomotu as (Ex.C1). The said summons was taken to one Mr.Sankaralingam S/o Rajangam Oomachikulam, Sasthiri Nagar, Thirumalpuram Post, Madurai 14. The same was 15/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 05:02:47 pm ) A.S(MD)No.53 of 2015 returned with the following endorsement :
“extracted supra” Therefore, on a harmonious reading of the return endorsement made by the Junior Bailiff of this court, the attestor was very well available in the village until three years back. It is not the case of the defendant that he could not be found. In order to invoke section 69 of the Indian Evidence Act it is the duty of the defendant or the propounder to prove that inspite of their best efforts the attestor could not be found.
31.But to prove the said aspect absolutely the propounder has not raised his little finger and not even think fit to examine the Junior Bailiff of this court who was directed to serve the summon, to speak what are all the steps he took to find out the witness and that whether he came to know about the alternative address of the witness. Further they also not examined the Village Assistant who vouched about the attestor's absence.
Whenever a propounder proving the Will they must vouch before the court about the steps taken by them to find out the attestor. Even on perusal of the endorsement in the summon the attestor was found until three years back in the address mentioned. If that being the case, the propounder could have personally gone to the village or could have sent somebody on her behalf to find out the 16/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 05:02:47 pm ) A.S(MD)No.53 of 2015 present address of the attestor. Further except this one summon the propounder has not at all taken any other steps to find out the attestor. To crown it all, at the least, under the oath she has not at all stated that she could not found the attestor.”
17.As early as in 1919, the High Court of Lower Burma in the decision reported in 1918 SCC OnLine LB 64 (Assomeah Vs V.S.R.M.Chetty) had held that the propounder of the Will must conduct an inquiry that is strict, diligent, honest and satisfactory to the Court. It should be made at the residence of the witness, if known, and at all the other places where he may be expected to be found, and also, in general of his relatives and others who may be able to give information concerning him. The Hon'ble Orissa High Court in the decision reported in 1967 33 CLT 811 (Sita Dakuani and Others vs Rama Chandra Nahak) held that before Section 69 is resorted to, the absence of all the witnesses has to be duly accounted for.
18.The learned counsel appearing for the appellant relied on the decision reported in 2013 (3) CTC 729 (Palaniammal v. Pappathi). The said case involved a registered Will and the scribe alone was examined. 17/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 05:02:47 pm ) A.S(MD)No.53 of 2015 No suggestion was put to the scribe or the propounder during cross examination that the attesting witnesses were alive during trial. The High Court held that the Will was proved. In that case, the suit was filed in 1999. The suit Will was dated 09.07.1969. In other words, a thirty year old Will was propounded. The courts below had concurrently held that the Will had been proved. In exercise of jurisdiction under Section 100 of CPC, this Court declined to interfere. An expression “singularly singular case” was employed by the learned Judge. Therefore, such a decision cannot be mechanically applied to the facts of this case. In the case on hand, the suit Will is of the year 2002. Even according to the defendant, one of the attesting witnesses was alive during trial. That is why, witness summon was taken out. We therefore hold that the said decision is distinguishable on facts.
19.The learned counsel for the appellant is also not justified in claiming that the plaintiffs have admitted the due execution of the Will. A mere look at the plaint averments would show that the plaintiffs have challenged the validity of the Will. Therefore, the defendant was obliged to discharge her burden under Section 68 of the Indian Evidence Act. 18/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 05:02:47 pm ) A.S(MD)No.53 of 2015
20.In the case on hand, the appellant / defendant (Uma) who is the propounder of the Will had not deposed anywhere that Sankaralingam is no more. She had not examined the bailiff who had made the endorsement that the enquiry had revealed that Sankaralingam had left the place some 3 years ago. The appellant is a very affluent woman. Because of her old age and physical condition, she was not in a position to undertake any personal search. But with the resources at her command, she could have commissioned a reputed detective agency and obtained information about the whereabouts of the attesting witness. She did not do anything of that sort. That is why, the Court below had concluded that the defendant did not prove the suit Will as required by law. We are of the view that the approach adopted by the Court below is sound and that interference is not warranted.
21.The learned counsel for the appellant / defendant contended that since the share that fell to Manikkam Pillai in the estate of Parukutty Ammal was not included in the suit schedule, the suit was hit by the vice of partial partition. Before examining the said contention, we must take 19/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/04/2025 05:02:47 pm ) A.S(MD)No.53 of 2015 note of the larger principle as to why a plaintiff is non-suited if he does not include all the properties that are amenable to partition. If this principle is not applied, the defendant would be vexed with successive suits for partition. If it is clear that there is no possibility of a second suit for partition between the parties, the said principle need not be applied. Before us, a categorical statement was made by the plaintiffs that they are conscious that there is no other property available for partition and that they would not file any further suit for partition against the appellant. When there is no scope for further litigation and since it is clear that no other property has been left out, the contention that the suit is bad for partial partition has to be rejected. Even on merits, it is seen that Parukutty Ammal had bequeathed her properties at Thandikudi in favour of the appellant and the appellant had settled the same in favour of her brother Ganesh (DW.3). The plaintiffs had earlier filed a separate suit in respect of Thandikudi property but allowed it to be dismissed for default. Before us, it had been undertaken by the counsel for the plaintiffs on instructions that this issue had already been given a quietus and that it will not be revived.
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22.As already mentioned, Ganesh DW.3 is also a legal heir of Manikkam Pillai. He was not impleaded as a defendant. Though he stepped into the witness box in support of the appellant herein, he did not choose to join the proceedings before the court below. But in this appeal he got himself impleaded. Since we confirm the finding of the court below that the suit Will had not been proved, Ganesh also will be entitled to his share. The judgment and decree of the court below is therefore modified. The legal heirs of the first plaintiff will be collectively entitled to 1/4th share in the first item of the suit property. The second plaintiff (R2 herein), the defendant (appellant herein), the impleaded respondent Ganesh (R3 herein) would be entitled to 1/4th share each in the first item of the suit property.
23.This Appeal stands disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed.
(G.R.S. J.,) & (M.J.R. J.,)
25.03.2025
2/2
NCC : Yes/No
Index : Yes / No
Internet : Yes/ No
MGA
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A.S(MD)No.53 of 2015
To
III Additional District Judge (PCR), Madurai.
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A.S(MD)No.53 of 2015
G.R.SWAMINATHAN, J.
and
M.JOTHIRAMAN, J.
MGA
A.S(MD)No.53 of 2015
and
C.M.P.(MD)Nos.12131 of 2016, 4058 of 2018,
6691 of 2020, 5589 of 2020 &
M.P(MD)No.1 of 2015
25.03.2025
2/2
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