Madras High Court
A.Shajahan vs The Secretary on 1 April, 2021
C.M.A.No.863 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 01.04.2021
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
C.M.A.No.863 of 2017
A.Shajahan .. Appellant
Vs.
1.The Secretary,
Narasingapuram Primary Agricultural
Co-operative Bank Ltd., No.6608,
Narisingapuram -636 108.
Attur Taluk, Salem District.
2.Mehataj
3.Dilshath .. Respondents
PRAYER : Civil Miscellaneous Appeal is filed under Section 384(1) of the
Indian Succession Act, 1925, appeal against the order dated 16.09.2015 made
in S.O.P.No.253 of 2008 on the file of the I Additional District Court, Salem.
For Appellant : Mr.T.Murugamanikkam
For Respondents
For R1 : Mr.Babu Ranfasamy Associates
For R2 : Mr.Suriya sankar
For R3 : Mr.S.T.Bharath Gowtham
1/7
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C.M.A.No.863 of 2017
JUDGMENT
The appellant herein is the petitioner in S.O.P.No.253 of
2008 filed by her under Section 372 of the Indian Succession Act 1925 to
issue a Succession Certificate in order to withdraw the amount from the 1 st
respondent / Bank as per the Will dated 02.09.2005.
2. The Bank as well as the another beneficiaries of the Will/
respondents 2 & 3 contested the said petition.
3. On hearing both sides the trial Judge dismissed the petition
in S.O.P.No.253 of 2008 dated 16.09.2015 on the file of the I Additional
District Court, Salem. Aggrieved by the order the appellant / petitioner has
preferred this Appeal.
4. The question of law that arises for consideration is as to
“whether the trial Judge was right in dismissing the
appellant's claim by concluding that Will is not proved
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C.M.A.No.863 of 2017
without ignoring the fact that the beneficiaries of the Will /
R2, another beneficiary admitted the Will?”
5. The learned counsel for the appellant submitted that the
respondents 2 and 3 are sisters of the appellant. The appellant's aunt one
Rabiya Basiri had executed a Will and registered on 02.09.2005 in favour of
the appellant as well as his sister / 2nd respondent, through which bequeathed
the bank deposits in his favour. She died on 2005 after that, the Will was
implemented. The bank deposits are mentioned in the Will as Schedule-B.
The appellant is entitled to receive the amount for which succession certificate
is necessary. Hence, he filed S.O.P.No.235 of 2008 before the learned No.I
Additional District Judge, Salem.
6. The 1st respondent / bank raised formal objections. The 2 nd
respondent who is one of the beneficiaries of the Will also not disputed the
Will. The 3rd respondent who is another sister of the appellant submitted
formal objection because she was not given any share in that Will.
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C.M.A.No.863 of 2017
7. But before the Trial Court the petitioner was examined
himself as PW.1, one of the attestors of the Will was examined as P.W.2 and
he has produced documents Ex.P.1 to Ex.P6 and on the side of the
respondents, the 2nd respondent examined as R.W.1 and there is no evidence
on the side of the 3rd respondent who objected the Will. By examining one of
the attestors the appellant proved the execution of the Will as required under
Section 68 of the Evidence Act.
“68. Proof of execution of document required
by law to be attested:- If a document is required by law to be
attested, it shall not be used as evidence until one attesting
witness at least has been called for the purpose of proving its
execution, if there be an attesting witness alive, and subject to
the process of the Court and capable of giving evidence:
[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.]”
8. But on seeing the findings of the Trial Judge he observed
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C.M.A.No.863 of 2017
that as per the evidence of the 2 nd respondent / R.W.1 there is a suspicious
circumstances in the Will, but he failed to observe the fact that the R.W.1
admits the Will while filing his counter statement. In his Counter statement he
stated as follows:
“ 3.Contents of para 1 of the petition regarding the
inheritance by virtue of the Will dated 02.09.2005 are not
disputed. It is also true that the testatrix Rabia Basri expired
on 08.10.2005.”
9. Thus R.W.1 also admits the execution of the Will.
Admission is the best evidence which require no further proof. The appellant
in order to prove the Will, examined one of the attestors which is sufficient.
The another respondent / 3rd respondent who raised formal objections about
the Will not adduced any witness to support his contention.
10. But the trial Judge without appreciating all these facts
erroneously dismissed the petition. Therefore the findings given by the trial
Judge is set aside. Accordingly, S.O.P.No.235 of 2008 is allowed and
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C.M.A.No.863 of 2017
succession certificate is issued to the appellant to withdraw the amount as per
the Will dated 02.09.2005.
11. Accordingly, the Civil Miscellaneous Appeal is allowed
and the order passed by the learned No.I Additional District Judge, Salem in
S.O.P.No.253 of 2008, dated 16.09.2015 is set aside. No costs.
12. Appellant is permitted to withdraw the amount mentioned
in the petition schedule with accrue d interest from the 1st respondent's bank.
01.04.2021
rri
Index : Yes/No
Speaking Order: Yes/No
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C.M.A.No.863 of 2017
T.V.THAMILSELVI,J.
rri
C.M.A.No.863 of 2017
01.04.2021
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