Indian Kanoon - Search engine for Indian Law

The defendant in O.S. No. 301 of 1989 on the file of Principal Subordinate Judge, Tirunelveli is the appellant in this appeal. The said suit was filed by the respondents 1 and 2 herein for partition and separate possession of the 1/4th share in the schedule mentioned properties in the plaint by metes and bounds. The suit was decreed by passing a preliminary decree.

2. For the sake of convenience, the parties shall be referred to as they were arrayed in the suit.

3. The facts that led to filing of the plaint was that the suit property originally belonged to one Mary Fernando. The said Mary Fernando sold the suit property through her power of attorney Innasi Fernando in favour of the defendant and mother of the plaintiffs namely Pushpam Ammal by a registered sale deed dated 26.11.1971 and from the date of such purchase, the defendant and mother of the plaintiffs were in peaceful possession and enjoyment of the suit property. While so, the said Pushpam Ammal, mother of the plaintiffs and Thavamani Nadar, husband of Pushpam Ammal and father of the plaintiffs, have jointly executed a registered Will dated 26.03.1985 bequeathing all the properties belonged to them, including the schedule mentioned property in the suit, to the plaintiffs. According to the plaintiffs, the executants namely Pushpam Ammal and Thavamani Nadar have executed the Will in a sound and disposing state of mind without coercion or undue influence. After the death of the said Pushpam Ammal, the plaintiffs have claimed their share of the property as they are the legatees and beneficiaries under the Will. According to the plaintiffs, under Law, they have taken joint possession of the suit property along with the defendant. They would contend that the plaintiffs and defendant are joint owners of the property. As the defendant started making disturbances in regard to joint possession, according to the plaintiffs, it is no longer possible to enjoy the property jointly, hence, they have filed the suit claiming partition and separate possession of the schedule mentioned property.

11. The point for consideration in this appeal, as argued by the counsel for both sides are (i) whether the Will has been executed by Pushpammal and Thavamani Nadar and such execution has been proved in accordance with law and (ii) whether the plaintiffs are entitled for partition on the basis of the Will.

12. Heard the counsel for both sides. The case of the plaintiffs is that the properties was jointly purchased by their mother Pushpammal and defendant and thereafter the property was jointly enjoyed by the plaintiffs and the defendant. The patta originally stood in the name of Pushpammal and later on it was transferred in the name of the defendant. It is also the case of the plaintiffs that Pushpamal executed the Will, which was registered on 26.03.1985 by which the plaintiffs, who are her sons, were allotted various properties, including the suit property and each of them are entitled to 1/4th share of the property in the suit property, as their mother is owning only half share in the suit property. It is recited in the Will that apart from the plaintiffs, one Jhansi, daughter was born to Pushpammal and Thavamani Nadar, she was given in marriage by incurring expenses and therefore she need not be given any property. Therefore, according to the plaintiffs all the properties mentinoed in the Will devolve on them for their exclusive enjoyment.

13. The defendant would contend that the execution of the Will is denied as his mother in law namely Pushpam Ammal was suffering from cancer for a long time and therefore, she was not be in a sound and disposing state of mind to execute the Will. The plaintiffs, being the sons of Pushpam Ammal and living with her, have taken advantage of her illness and created the Will. Therefore, according to the defendant, there is a cloud in the Will. Under those circumstances, when the plaintiffs relies on the Will, it is they who have to prove the execution of the same in accordance with law.

38. When we look into the observations made by the Honourable Supreme Court in Para No.12 of the decision reported in (Naresh Charan Das Gupta vs. Paresh Charan Das Gupta) AIR 1955 SC 363 the Honourable Supreme Court has categorically held that "It cannot be laid down as a matter of law that because the witnesses did not state in examination-in-chief that they signed the will in the presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence. The finding of the court below that the will was duly attested is based on a consideration of all the materials, and must be accepted. Indeed, it is stated in the judgment of the Additional District Judge that the fact of due execution and attestation of the will was not challenged on behalf of the caveator at the time of the hearing of the suit. In this case, the Honourable Supreme Court has taken into consideration that the very fact of attestation and execution of the Will in that case was not at all denied by the other party. Even otherwise, it was held that it is a question of fact. Therefore, the Honourable Supreme Court held that merely because witness does not say that the Will was signed in the presence of the attestor, it cannot be called as due attestation. Whereas, the facts in the present cdase are totally different. The defendant/ appellant had specifically contended that at the time of the alleged execution of the Will, one of the testators namely Pushpam Ammal was suffering from cancer and she was not in a sound and disposing state of mind and therefore she could not have executed the Will, as alleged. Furthermore, one of the legatees has not been given any share in the property and she was excluded from getting any benefit out of the Will. Above all, the defendnat/appellant had vehemently contended that theproperty in question was purchased out of his own funds and that his mother in law Pushpam Ammal was only a name lender. Under those circumstance, there is a cloud over the due execution of the Will. Therefore, when the very execution of the Will is challenged, necessarily it has tobe proved in accordance with Section 63 of the Indian Succession Act and under Section 68 of the Indian Evidence Act.