Madras High Court
Kamalam vs C.P.Arunachalam on 1 December, 2021
AS.No.645/2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AS.No.645/2018
[Video Conferencing]
1.Kamalam
2.Ramayee [died]
*1st appellant is LRs of the deceased as per
Memo dated 08.09.2021 and vide Court
order dated 15.09.2021 made in
AS.No.645/2018 .. Appellants /
Defendants 8 & 9
Vs.
1.C.P.Arunachalam
2.Saraswathi
3.Parimalam
4.C.P.Nallasamy .. Respondents
/ Plaintiffs
5.Annakodi @ Annaporani
6.Nithya
7.Minor Shruthi
8.Dhanabakkiam
9.Parameswari
10.Vijaya @ Vijayalakshmi .. RR 5 to 10 /
Defendants 2 to 7
https://www.mhc.tn.gov.in/judis 1
AS.No.645/2018
Prayer:- Appeal Suit filed under Order 41 Rule 1 read with Section 96 CPC
against the judgment and decree dated 05.07.2018 made in
OS.No.223/2015 on the file of the learned II Additional District Judge,
Erode.
For Appellants : Mr.N.Manokaran
For RR 1 to 4 : Mr.T.Nirmaleshwar
JUDGMENT
(1) The Court heard the arguments advanced by the learned counsel for
the appellants / defendants 8 and 9 and the learned counsel for the
respondents 1 to 4 / plaintiffs.
(2) The only point that arise for consideration in this Appeal Suit is
whether the Will dated 25.01.1977 under Ex.A1 is proved or not?
(3) Defendants 8 and 9 in the suit in OS.No.223/2015 on the file of the
learned II Additional District Judge, Erode, is the appellants herein.
(4) Respondents 1 to 4 in this Appeal, as plaintiffs, filed the suit in
OS.No.223/2015 for partition of 1.35 ½ acres to the plaintiffs and
to effect division in the said manner and for other reliefs.
(5) The suit was contested by the defendants including the appellants
herein who are defendants 8 and 9 in the suit only on the basis of
the Will which was marked as Ex.A1. It is stated that the maternal
AS.No.645/2018
grandfather of plaintiffs 1 to 4 / respondents 1 to 4 herein, namely,
Muthusamy Gounder, who had no male heirs during his lifetime,
had executed the Will dated 25.01.1977 and that through the said
Will, he bequeathed his 1.35 ½ acres of property to which the
plaintiffs seek relief in the suit.
(6) It is admitted that the original Will is not produced. None of the
attestors to the document were examined. The appellants herein /
defendants 8 and 9 examined DW2 by name Dharmalingam who is
said to be a person who had acquaintance with the signatory of one
of the attestors of the Will. Unfortunately, the evidence of DW2-
Dharmalingam, is to the effect that he is unaware of the Will of
Muthusamy Gounder. The said witness also admitted that he was
not aware of the documents signed by his father as attestor. The
nature of evidence given by DW2 does not satisfy the requirement
of Section 71 of the Indian Evidence Act and it is not in anyway
helpful to the appellants herein to prove attestation of the Will.
Hence, the Trial Court specifically given a finding that the
appellants failed to prove the Will by Muthusamy Gounder, father
of one Palaniammal who is the mother of plaintiffs 1 and 4 and one
AS.No.645/2018
C.P.Krishnan. When the Will is not proved, the case of the
appellants that they are entitled to claim title over the property, viz.,
1.35 ½ acres, in SF.No.169 of Perundurai Village, cannot be
accepted.
(7) The Trial Court is therefore, is right in decreeing the suit as prayed
for. Since no other ground was raised by the appellants/defendants
8 and 9 to defend the suit, this Court has no reason to interfere with
the findings of the Trial Court.
(8) In the result, the Appeal Suit is dismissed as devoid of merits. No
costs.
01.12.2021
AP
Internet : Yes
To
1.The II Additional District Judge, Erode.
2.The Section Officer, VR Section, High Court, Chennai.
AS.No.645/2018
S.S.SUNDAR, J.,
AP
AS.No.645/2018
01.12.2021
https://www.mhc.tn.gov.in/judis 5
