Madras High Court
Dhanajeyan vs Dharaniammal on 28 April, 2021
S.A.No.16 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.04.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.16 of 2008
&
M.P.No.1 of 2008
Dhanajeyan ... Appellant
Vs
1.Dharaniammal
2.Puranikaraja
3.S.Mohanan
4.Chandrammal
5.Gopalaraja
6.Loganatharaja
7.Punniyavathiammal
8.Mohanraja ... Respondents
1/18
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S.A.No.16 of 2008
Prayer: Second Appeal filed under Section 102 of the Code of Civil
Procedure against the Judgment and Decree passed in A.S.No.33 of
2008 dated 26.04.2007 on the file of the Subordinate Court, Vellore
reversing the Judgement and Decree made in O.S.No.457 of 1998 dated
31.01.2006 on the file of the Principal District Munsif, Vellore.
For Appellant : Ms.R.T.Sundari
For Respondent 1 : Mr.P.G.Thiyagu
For Respondent 4 : Died
For Respondents 2, 3, 5 to 8 : No Appearance
JUDGEMENT
The 3rd defendant in the suit has filed the above Second Appeal
challenging the Judgement and Decree in A.S.No.33 of 2006 on the file
of the Subordinate Court, Vellore, in and by which the learned
Subordinate Judge had reversed the Judgement and Decree of the
Principal District Munsif, Vellore in O.S.No.457 of 1998. For ease of
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understanding the parties are referred to in their array as in the suit.
2. The plaintiff had filed the suit O.S.No.457 of 1998 on the file
of the Principal District Munsif, Vellore for a declaration of her title to
the suit schedule property and for recovery of possession and
permanent injunction restraining the defendants from selling or
creating encumbrance in respect of the suit property. The suit property
consist of 11 items of Nanja lands and the 12th item is a dilapidated
thatched house with vacant site. All the items of property are situate in
various survey numbers of Nedumipalayam Village, Vellore.
3. The case of the plaintiff is that the three sons of one Rangaraja,
Venkatasamyraja, Ramaraja and Balakrishnaraja had partitioned their
joint family properties under a registered partition deed dated
09.03.1952. After the partition, the three of them were enjoying their
respective shares as their separate property. Venkatasamyraja had
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mortgaged the properties several times over. The said
Venkatasamyraja had died leaving behind him his wife, Muniyammal
and son Kumarasamyraja. Muniyammal's sister Indirani Ammal was
also living with the family of Venkatasamyraja and joint patta was
given in the name of Kumarasamyraja, Muniyammal and Indirani
Ammal in respect of the properties of Venkatasamyraja.
4. After the demise of Muniyammal and Indirani Ammal the said
Kumarasamyraja was in exclusive enjoyment of the properties in
question. Apart from these ancestral properties, Kumarasamyraja was
also settled with some other properties under a settlement deed dated
03.06.1973. The settler was the name sake of his father and the son of
Bethuraja. At the time of the settlement, Kumarasamyraja was a minor.
Apart from the properties inherited from his father Venkatasamyraja,
Kumarasamyraja was also in possession and enjoyment of the
properties settled on him by Venkatasamyraja son of Bethuraja. The
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S.A.No.16 of 2008
revenue records stood in the name of Kumarasamyraja.
5. It appears that the said Kumarasamyraja who was a bachelor
had executed a Will dated 12.01.1996 bequeathing the suit properties
on the plaintiff. The plaintiff is the daughter of Indirani Ammal, the
sister of Kumarasamyraja's mother Munniyammal. Kumarasamyraja
breathed his last on 30.06.1996. After his death, the plaintiff came to
know about the Will and the Will came into effect. As a result of
which, the plaintiff became the absolute owner of the suit schedule
properties.
6. The 1st defendant is the paternal uncle of Kumarasamyraja and
the 2nd respondent is the son of Balakrishnaraja, the other brother of
Venkatasamyraja. The 3rd defendant is a stranger to the property and
is also not a relative. Since the defendants were attempting to trespass
into the suit property and on 12.07.1998 had denied the title of the
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S.A.No.16 of 2008
plaintiff to the suit properties, the plaintiff was constrained to file the
suit in question. Pending the suit, the 1st defendant had died and the
legal representatives were brought on record as defendants 5 to 9.
7. The 3rd defendant had filed a written statement, which was
adopted by defendants 1, 2, 5 to 9. In the written statement filed by the
3rd defendant, the suit filed by the plaintiff was resisted inter alia on
the ground that Kumarasamyraja had died intestate leaving behind him
surviving only the defendants 1 and 2 as his legal representatives since
Kumarasamyraja had died bachelor. The suit properties therefore
devolved only upon defendants 1 and 2 and they have been in
possession and enjoyment of the suit properties.
8. The 3rd defendant had denied the Will dated 12.01.1996 said
to have been executed by Kumarasamyraja. It was their contention that
the said Will was forged document created exclusively for the purpose
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of the suit and therefore the plaintiff was not entitled to any share in the
suit schedule property. It was also contended that defendants 1 and 2
had sold most of the properties to the 3rd defendant on 13.06.1996.
Therefore the contention that the plaintiff was in possession and
enjoyment of the suit property was absolutely false and the suit
deserves to be dismissed.
9. During the trial of the suit, the plaintiff had examined herself
as P.W.1, the attestor of the Will one Chinnasamy was examined as
P.W.2 and Janaki, the scribe of the Will was examined as P.W.3. The
plaintiff had marked Ex.A.1 to Ex.A.6 in support of their case. The
defendants had neither let in any oral evidence nor submitted
documentary evidence to support their contention.
10. The Trial Court disbelieved Ex.A.6 Will on the ground that
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the testator even according to the evidence of P.W.1 was unwell and he
had died within a few days of executing Ex.A.6 Will. The learned
District Munsif, Vellore had also observed that the testator had not
signed on the first sheet and had only signed the second sheet and the
second sheet was also not written on stamp paper but was written on a
plain paper and this sheet was glued to another sheet. Therefore, the
learned Judge entertained doubts about the Will.
11. The learned Judge had also observed that there were
contradictions in the evidence of P.W.1 and P.W.2 and P.W.3 with
reference to the place of the execution. The learned Judge therefore
proceeded to dismiss the suit as the plaintiff had failed to prove her
case. However, the learned Judge had also drawn adverse inference
from the fact of the defendants not entering into the box to adduce oral
evidence or to file documentary evidence. However, considering the
fact that the plaintiff had to succeed on the strength of her case, the suit
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was dismissed on the ground that the Will had not been proved in the
manner known to law.
12. Aggrieved by the said Judgement and Decree, the plaintiff
had filed A.S.No.33 of 2006 on the file of the Subordinate Court,
Vellore. The learned Subordinate Judge, Vellore on an elaborate
consideration of the evidence of the scribe and the attestor and after
going through the contents of the Will reversed the finding of the Trial
Court by holding that the Will has been proved in the manner known to
law. Challenging this Judgement and Decree, the 3rd defendant alone
has preferred this Second Appeal.
13. When the matter had come up for admission on 09.01.2008,
this Court had directed notice regarding admission. The 1st respondent
/ plaintiff has entered appearance through counsel.
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14. Ms.R.T.Sundari, learned counsel appearing and arguing on
behalf of the 3rd defendant would submit that the appellate Court has
totally overlooked the fact that the Will is shrouded in suspicious
circumstances. She would argue that the Will which contains two
pages has been signed by the testator only in the second page and the
fact that the testator who was just 40 years had died within a days of
the execution of the Will would establish that he was not in a sound
disposing state of mind.
15. That apart, she would argue that there was contradiction
between the plaintiff, the attestor and the scribe with reference to the
place, where the Will had been executed by the deceased testator. She
would further argue that the attestor P.W.2 had deposed that he did not
know the contents of the documents which he had attested and all these
circumstances would only go to show that the Will is fabricated one.
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16. Per contra Mr.P.G.Thiyagu, learned counsel appearing on
behalf of the plaintiff would contend that the property which has been
bequeathed on the plaintiff is the property that had been settled in
favour of Kumarasamyraja by Venkatasamyraja son of Bethuraja. The
learned counsel would contend that Kumarasamyraja was in a sound
disposing state of mind and a mere reading of the contents of the Will
would clearly establish the same. He would submit that the scribe and
the attestor has spoken in one voice about the execution of the Will by
Kumarasamyraja and with reference to his mental condition.
Therefore, the Will has been proved in the manner known to law as per
the provisions of Section 68 of the Indian Evidence Act and Section 63
(c) of the Indian Succession Act.
17. The learned counsel would argue that the evidence of both
P.W.2 and P.W.3 has not been shaken in cross and cogent reasons have
been given for obtaining signature only in single sheet and the reasons
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why the second sheet had been glued to another sheet. He would
further argue that the 3rd defendant has no locus standi to file the appeal
without the 1st and 2nd defendants, since they are the Class II legal
heirs of the deceased Kumarasamyraja. Since they have not challenged
the judgement it only shows that they have accepted the Judgement.
18. Heard the counsels and perused the records.
19. The Will which is the subject matter of dispute in the suit has
been executed by the testator in the presence of P.W.2 and the other
witness. P.W.2, Chinnsamy has cogently narrated the execution of the
Will by Kumarasamyraja and reasons as to why Kumarasamyraja had
chosen to bequeath the properties on his first cousin, Dharani Ammal.
The witness has stated that Kumarasamyraja had bequeathed properties
on the plaintiff on account of her being physically challenged and as
she had been attending to his needs.
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20. It is also to be borne in mind that the plaintiff is the daughter
of Kumarasamyraja mother's sister. The mother of the plaintiff had
been residing with the said Kumarasamyraja's mother and father and in
fact the patta, Ex.A.3 stood in the name of the plaintiff's mother as
well. P.W.2 has clearly deposed that he has been regularly in contact
with the testator. He would also in his cross examination submit that
the Will was only with reference to the properties situate at
Nedumipalayam, which was the subject matter of the settlement deed,
Ex.A.2.
21. He had also deposed that he was very much aware of the fact
that the Will had been executed bequeathing the properties at
Nedumipalayam since the plaintiff was physically challenged. P.W.3,
the Scribe would depose to the effect that she had taken down the
recitals of the Will on the dictation of the testator Kumarasamyraja.
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Kumarasamyraja signed the Will after she had read it out aloud the
contents.
22. The defendants had attempted to discredit the evidence of
P.W.3 by trying to make it appear that she was an interested witness.
However, she has effectively refuted the suggestions made by the
defendants in this regard. She had also given reasons for the 2nd page
being glued to another sheet. She would depose that since the paper
was of very thin consistency, the papers were getting torn and therefore
the papers had been glued on to a thicken paper. She would submit
that though the testator had not signed on the 1st page despite her
asking him to do so, however, a reading of the Will would clearly show
the flow of language and the connection between the recitals in the first
page and the second page.
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23. Therefore, from a perusal of the evidence of P.W.2 and
P.W.3 it is clearly evident that the testator Kumarasamyraja was in a
very sound disposing state of mind on the date on which he had
executed the Will. The contents of the Will has been dictated by him
and he has signed the Will and had also seen the attestation of the Will
by the witness who in turn has seen the testator affix his signature to
the Will. Therefore the Will has been proved in conformity with the
provisions of Section 68 of the Indian Evidence Act and Section 63 (c)
of the Indian Succession Act. The defendant have not come forward to
adduce or produce evidence. The 3rd defendant admittedly is stranger
to the family. The defendants 1 and 2 who are the people having a
caveatable interest in the property have not chosen to challenge the
Judgement and Decree of the learned Subordinate Judge, Vellore and
therefore the Judgement and Decree in A.S.No.33 of 2006 of the
Subordinate Judge, Vellore has attained finality.
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24. Another controversy which was pointed out by the learned
counsel for the appellant was that there was discrepancy in the
evidence of P.W.1 , P.W.2 and P.W.3 with reference to the place of
execution of the Will. P.W.1 and P.W.2 had stated that the Will was
executed in the house of Balammal, the foster mother of the testator.
P.W.3 has adduced evidence to the fact that the Will was executed at
Mohamadpuram. From the evidence it is clear that Balammal, was
residing in Mohamadpuram. Therefore, there is no contradiction
regarding the place of execution even on this ground. The appeal fails.
25. The appellant has not made out any substantial question of
law warranting the interference of this Court in the Judgement and
Decree of the learned Subordinate Judge, Vellore. In fine the Second
Appeal stands dismissed. The Judgement and Decree in A.S.No.33 of
2016 on the file of the Subordinate Court, Vellore is confirmed.
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Consequently, connected Miscellaneous Petition is also closed. No
costs.
28.04.2021
kan
Index : Yes/No
Speaking order/non-speaking order
To
1. The Subordinate Court, Vellore.
2. The Principal District Munsif, Vellore.
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S.A.No.16 of 2008
P.T.ASHA, J.,
kan
S.A.No.16 of 2008
28.04.2021
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