Madras High Court
Pushpakumar vs Sidharathan on 3 December, 2021
S.A.No.832 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
S.A.No.832 of 2016
and C.M.P.No.16255 of 2016
1. Pushpakumar
2. Radha Mani ... Appellants
Vs.
1. Sidharathan
2. Maiseelan (Died)
3. Esodhara
4. Saraswathi
5. Hemanathan
6. Dinakaran
7. Ravi
8. Magesh ... Respondents
(Respondent Nos.4 to 8 brought on record as legal heirs of the
deceased respondent No.2 viz., Maiseelan vide Court order dated
25.11.2021 made in C.M.P.No.1084 of 2020 in S.A.No.832 of 2016
(MGRJ)
PRAYER: The Second Appeal filed under Section 100 of the Civil Procedure
Code against the judgment and decree dated 03.02.2015 made in A.S.No.76 of
2012 on the file of the Additional Subordinate Judge, Tambaram, setting aside
the judgment and decree dated 04.10.2012 made in O.S.No.84 of 2010 on the
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file of the Additional District Munsif Court, Alandur.
For Appellants : Mrs.A.L.Ganthimathi
for M/s.A.Saravanan
For Respondents : Mr.Mukunth
for M/s.Sarvabhauman Associates
-----
JUDGMENT
Aggrieved over the concurrent finding made by the Courts below,
defendant Nos.2 and 4 have preferred the above Second Appeal.
2. The respondents had filed a suit for partition and separate
possession and for a consequential injunction. The claim of the plaintiff is that
the parties are descendants of one Kuppusamy son of Veerasamy and the said
Kuppusamy had one son namely, Ramachandran and one daughter namely
Kalyani. The said Ramachandran died as bachelor without any issue and the
daughter of Kuppusamy married one Viswanathan and she had given birth to
the parties herein. There are five children. The pedigree is given as under:-
GENEALOGICAL TREE
KUPPUSAMY
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(died)
Ramachandran Kalyani
No Issues
(S) (S) (S) (D) (D)
Sidharthan Maiseelan Pushpakumar Esodara Radhamani
(P) (D1) (D2) (D3)
(D4)
3. The plaintiff is the co-sharer of the house and property measuring
to an extent of 1901 sq.ft. morefully described in the Schedule. The maternal
great grand father Veerasamy died intestate leaving behind his only son
Kuppusamy and Kuppusamy died intestate leaving behind his only son
Ramachandran and daughter Kalyani, who inherited the property.
Ramachandran died as bachelor The sons of Kalyani have inherited the property
through their mother and in joint possession and enjoyment of the suit property,
which is an ancestral property. The plaintiff is entitled to 1/5 th share. Defendant
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Nos.2 to 4 made an attempt to dispossess the plaintiff from the portion of the
suit property on 21.01.2010 on the pretext that their mother and uncle executed
the Will on 07.02.1990 in their favour. According to the plaintiff, they do not
have any right to execute the Will and the Will is a created one for the purpose
of grabbing the entire ancestral property without giving any share to the co-
shares. During 1st week of January, 2010, the plaintiff demanded partition and
separate possession since the parties were not amenable, filed a suit for
partition.
4. In the written statement, defendant No.1 admitted the plaint
averments and agreed for partition as 1/5th share. Defendant Nos.2 to 4 denied
the plaint averments and contended that their father namely, Viswanathan died
in the year 1951, and their mother, Kalyani, was unable to find out proper
source of income for the family as all the children were at tender age. Therefore,
they were living in poor condition. In such circumstances, the plaintiff,
Sidharathan, was brought up by his paternal uncle Mahindran at Railway
Quarters, Ayanavaram, Chennai – 23. Defendant No.1, Maiseelan, joined in
Military Service and left the family and lived separately and settled down at
Adambakkam. Defendant No.3 was also brought up by her paternal aunt.
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Defendant Nos.2 and 4 alone were living with Kalyani and Ramachandran.
Considering the status of Kalyani, her brother Ramachandran did not marry and
helped her and defendant Nos. 2 and 4 and they have jointly executed the Will
on 07.02.1990 which was registered as Document No.8/90 at the office of the
Sub Registrar, Alandhur. The property was jointly bequeathed in favour of
defendant Nos.2 and 4. Ramachandran died on 23.08.1995. After the marriage
of defendant Nos. 2 and 4, Kalyani lived in 4th defendant's house. Again, she
executed another Will dated 15.03.1996 registered as Document No.29/96 at
the office of the Sub Registrar, Tambaram. She bequeathed the schedule
mentioned property in favour of the 4 th defendant. Even though the entire
property was bequeathed which would be binding only half share, in the said
Will, the plaintiff's wife namely, Selvi was the attesting witness and she knew
the entire facts. All the parties have full knowledge of the previous transaction.
Accordingly, the front portion was given to the 4th defendant and rear portion
was given to 2nd defendant by consensus. The plaintiff, subsequently,
approached the 4th defendant to provide temporary accommodation in her half
share of house property for the time being and the 4th defendant was kind
enough to accommodate the request of the plaintiff, who happened to be the
brother of the 4th defendant. He is only a permissive occupant and he has no
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share in the property. The parties are not in joint and common enjoyment of the
property and they are not entitled to a share. Hence, the suit is liable to be
dismissed.
5. The trial Court framed appropriate issues and found that as per the
first Will, defendant Nos. 2 and 4 are entitled to 1/2 share and they acquired
title over the property on the death of Ramachandran. Therefore, the second
Will executed by Kalyani, who bequeathed the entire property in favour of her
daughter, is not valid and by virtue of the Will, defendant Nos.2 and 4 are
entitled to 1/2 share in the property. Therefore, the plaintiff is not entitled to
1/5th share and he was only a permissive occupant and in joint accommodation
of the property and hence, the suit was dismissed. Aggrieved over the same, the
plaintiff filed an appeal. The First Appellate Court after framing appropriate
points for consideration, held that the Will was not proved in the manner known
to law and just because it is a registered Will, it cannot be believed and
therefore, relying on various judgments in respect of proof, has held that the
parties are entitled to equal share and decreed the suit by setting aside the
judgment of the trial Court. Aggrieved over the same, defendant Nos. 2 and 4
have preferred the above Second Appeal.
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6. The Second Appeal is admitted on the following substantial
questions of law:-
(a) Whether the Lower Appellate Court is justified in
reversing the judgment of the trial Court that the appellants had not
proved the Will?
(b) Whether the Lower Appellate Court is right in holding
that the appellants had not proved the Will when especially the 1st
respondent had admitted the execution the Will in the cross
examination?
(c) Whether the admission made by P.W.1 in respect of
Exhibit B1 is an admission under Section 58 of Indian Evidence Act
and requires no further proof from the attesting witnesses?
7. According to the learned counsel for the appellant, reversal of the
judgment of the trial court by the First Appellate Court is erroneous and
without appreciating the evidence of the parties in proper perspective. The
evidence of P.W1 by itself amply prove that the Will was admitted
unequivocally and therefore, it is not required to prove the admitted fact.
8. Therefore, it is imperative to find whether the Will propounded by
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defendant Nos. 2 and 4 have already been proved in the manner known to law.
Admittedly, the Will dated 07.02.1990 was marked as Ex.A3, again marked as
Ex.B1 and the subsequent Will dated 15.03.1996 was marked as Ex.B2. It is
contended that the plaintiff had marked the Will and admitted the execution of
the same.
9. On a perusal of cross examination of the plaintiff on the side of
defendant Nos.2 and 4, it is deposed as under:-
"uhjhkdp/ g[#;gFkhh; Mfpa ,UtUk; jhd;
filrptiu vd; jha[ld; ,Ue; jhh; fs; vd;Wk; ,th;fs; jhd;
jd;id fhg;ghw; Wthh; fs; vd;Wk; capypy; vGjp
itj;jpUe; j hh; fs; vd;why; rhpjhd; ". uhkre;jpud; 1995y;
,we;Jtpl;lhh;. vd; mk;kh 2008 y; 11 Mk; khjk; ,we;Jtpl;lhh;.
me;j brhj;jpy; g[#;gFkhh; gpd;dhy; xU gFjpapy; FoapUf;fpwhh;.
mjw;F gpwF vd; rnfhjuha[k; ,Uf;fpwhh;. mth;fSf;F ghfk;
gphpg;gjpy; uhjhkdpf;Fk;/ g[#;gFkhUf;Fk; bghpa gpur;rid
Vw;gl;lJ. mjd; gpwF brl;oy; Mfptpl;lJ vd;why; Mftpy;iy.
"vd; jhahh; fy;ahzp 1996y; capy; vGjpdhh;fs; vd;why;
rhpjhd; ";. me;j capiy ehd; ,Jtiu ghh;f;ftpy;iy. me;j
capypy; uhjhkdpna brhj;ij vLj;Jf;bfhs;s ntz;Lk; vd;W
capy; vGjpa[s;shh;fs;. vd; mg;ght[f;F bgd;#d; te;jJ me;j
bgd;#id th';fpf; bfhz;L uhjhkdp vd; jhahiu
fhg;ghw;wpdhh;. vd; jhahh; uhjhkdpa[ld; filrp fhyj;jpypUe;J
tpl;L ,we;Jg;nghdhh;fs;. ,g;bghGJ uhkre;jpuDk; ,y;iy.
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"fy;ahzpa[k; ,y;iy uhkre;jpuDk; capiy uj;J
bra;atpy; iy. fy;ahzp vGjpa capy; uj;J bra;atpy; iy.
me; j capy; jhd; ,d;Wtiu mKypy; cs; sJ vd;why;
rhpjhd; ".
and in cross examination dated 28.01.2011, he deposed as under:-
1996y; capy; vGjg;gl;l tptuk; kl;Lk; bjhpa[k;.
Mdhy; ehd; ,g;bghGJ jhd; ghh;j;njd;. tp/V.X.mYtyfj;jpy;
ghh;j;njd;. vd;dplk; fhl;lg;gLk; capiy ehd; ghh;j;njdh
vd;why; ,y;iy. g[#;gFkhh;/ uhjhkdp vd;w mth;fSf;F vGjpa
capiyj;jhd; ehd; ghh;j;njd;/ mjidj;jhd; tp.V.X.tpy;
fhz;gpj;jhh;fs;/ vd; jhahnuh vd; khkhnth capy; vGjp
,Uf;fpwhh;fsh vd;why; mijg; gw;wp vdf;F bjhpahJ. ,e;j
capy; vd;dplk; fhl;lg;gLk; th.rh.M.V3 vdf;F tp.V.X.
mYtyfj;jpy; bfhLf;fg;gl;lJ. "vd;dplk; fhl;lg;g Lk; mry;
capy; jhd; th.rh.M.V3apd; cz;ikahd capy; vd;W
brhd;dhy; rhpjhd;. nkw;go mry; capy; Mtzk; gp.j.rh.M1
(vjph; jug;g[ tHf;fwp"h; Ml;nrgida[ld; FwpaPL
bra;ag;gLfpwJ) th.rh.M.V3apy; cs;s tptu';fis ehd;
jhth nghLk; nghJ goj;J ghh;j;n jd; . gpd;dh; tHf;F
nghl;nld; . mjpy; brhj; J tptuk; me;j brhj;J vt;thW
te;j J nghd tptu';fs; cs;s J vd;why; rhpjhd;. nkw;go
capiy vd; mk;kht[k; / uhkre; jpuDk; vGjp bfhLj; jhh;f s;
vd;why; rhpjhd;. nkw;go capiy gjpt[ bra;Js; s hh;fs;
vd;why; rhpjhd; . mjpy; rfyghj;aija[ld;
mDgtpj; J f; bfhs; s ntz;Lk; cs;sJ vd;why; rhpjhd; ".
He further deposed as follows:-
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brhj;J Fwpj;J ,uz;L capy;fs; cs;sJ vd;w tptuk;
vdf;F bjhpa[kh vd;why; ,g;nghJjhd; bjhpe;jJ. me;j capiy
Ml;nrgpj;J ehd; ve;j eltof;ifa[k; vLf;ftpy;iy vd;why;
ehd; ,e;j tHf;if jhf;fy; bra;Js;nsd;. "me;j brhj;ij
capy;gpufhuk; g[#;gFkhh; kw;Wk; uhjhkdp jhd; mila
ntz;Lk; vd;why; me;j capypy; mt;thWjhd; cs;s J. "
...............................................................
me;j capy; kpul;o th';fg;gl;l xd;W. vdJ mk;kh
kw;Wk; khkh capypy; ifbahg;gk; nghl;ljhy; mJ kpul;o
th';fg;gl;lJ vd;why; me;j capiy uj;J bra;a eltof;if
vLj;jpUg;ghh;fs; vd;why; me;j capy; vGjg;gl;l tptuk;
bjhpahJ. mt;thW mjid uj;J bra;J ve;j eltof;ifa[k;
vLf;ftpy;iy vd;why; 2 capy; vGjg;gl;lJ. ,e;j ,uz;L capy;
\ykhf vGjpa brhj;J vdf;F vGjg;gltpy;iy vd;why;
kpul;o bra;jpUe;jhy; mth;fns uj;J bra;jpUg;ghh;fs; vd;W
brhd;dhy; mJ rhpay;y. kpul;o vGjpajhf ehd; ,g;nghJjhd;
rhl;rpak; mspf;fpnwd; vd;whYk; ,Jtiu ahUk; ve;j
eltof;ifa[k; vLf;ftpy;iy g[fhh; VJk; ,y;iy vd;gjhYk;
,e;j capy; bry;Yk; vd;why; rhpay;iy. g[#;gFkhUf;Fk;/
uhjhkdpf;Fk; ey;y RKf cwt[jhd; vd;why; mt;thW ,y;iy.
...............................................................................
,e; j tHf;fpy; brhj;J tptu';fs; vdf;F vt;thW bjhpa[k;
vd;why; capiyg;ghh; j; J bjhpa[k;. vdJ khkh brhy;ypa[k;
bjhpa[k; .
............................................................................
mjpy; cs;s tpyhrk; vdJ khkpahh; tPl;L tpyhrk;.
10. From the evidence of P.W.1., it can be easily inferred that he
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would categorically admit the execution of the Will by mother and maternal
uncle and further he would depose that he was aware of the Will executed in
the year 1986 and he had seen the Will at V.A.O's office. He would further
admit that Ex.A3, Will was given to him at V.A.O office and it is the original
Will. He had gone through the contents of Ex.A3, Will, and thereafter only, he
learnt the facts and filed the suit and he would further admit that the Will was
executed by his mother and maternal uncle. Further, he would admit that in
spite of having knowledge of the Will, he has taken only action objecting the
Will and to set aside the same. As per the contents of the Will, defendant Nos. 2
and 4 said to have derived title to the properties and in further cross
examination, it is noted that signature of the mother and maternal uncle was
obtained by threat and coercion. From the evidence, it is categorically proved
that his mother and maternal uncle have executed the Will and the signature of
his mother and uncle in the Will was obtained by threat and coercion and that
he has not taken any steps to cancel the document and the Will was acted upon.
Defendant Nos. 2 and 4 are enjoying the property as per the wishes of the
testators.
11. It is very important to note that he came to know the suit details
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through the Will and thereafter only, he filed a suit on the basis of the contents
found in the said Will. It is also pertinent to note that his wife is one of the
attesting witnesses and she did not appear before the Court to deny her
signature. On the other hand, the signature was denied by the plaintiff, who
deposed as P.W.1. But curiously, he would state that the address of his wife is
at No.52/L, Gowri Street, Alandhur, Chennai - 16, which is his mother-in-law's
address. Therefore, it is clear that the wife of the plaintiff had attested the Will
and that the address given was her mother's house address. Hence, adverse
inference can be drawn that his wife attested the Will. Therefore, the fact that
the Will was executed by the mother and it was signed by them and it was acted
upon and as per the wishes of the Testators, defendant Nos.2 and 4 are
enjoying the property and that he has not taken any steps to set aside the Will
in spite of knowledge and that it was a registered Will have all been
categorically proved by the admission of P.W.1 himself. Curiously, P.W.1
would admit that he got to know the details of the suit property and filed the
suit on the basis of the contents found in the Will, which shows that the Will is
an admitted document and that the suit itself is based on the contents found in
the Will, it automatically goes that the Will was proved. The finding of the First
Appellate Court that the Will was not proved in the manner known to law as
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per Section 68 of the Indian Evidence Act, is not well founded. When execution
of the Will and its enforceability itself categorically has been admitted by the
plaintiff, it does not require any further evidence by examining the attesting
witness.
12. Therefore, the First Appellate Court reversing the judgment of the
Trial Court on the ground that the Will was not proved is liable to be set aside
and accordingly, the same is set aside. In the result, the judgment of the trial
Court is restored and the substantial questions of law are answered in favour of
the appellant. The Second Appeal stands allowed. There shall be no order as to
costs. Consequently, connected Miscellaneous Petition is closed.
03.12.2021
asi
Note: Issue order copy on or before 13.05.2022
To
1. The Additional Subordinate Judge, Tambaram.
2. The Additional District Munsif Court, Alandur.
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M. GOVINDARAJ, J.
asi
S.A.No.832 of 2016
and C.M.P.No.16255 of 2016
03.12.2021
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