Madras High Court
M.Lingappan vs Saraswathi on 16 December, 2021
S.A.No.1074 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 16.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A.No.1074 of 2021
and
C.M.P.No.20247 of 2021
Poovathal (Died)
1.M.Lingappan
2.S.Rajamani
3.L.Dhanasekaran ... Appellants
.Vs.
Balamani (Died)
1.Saraswathi
2.Brinda
3.K.Sundaramurthy
4.Sivakami
5.Seethalakshmi
6.Manimehalai
7.M.Subramaniam
8.S.Vijay
9.S.Manjula Devi ... Respondents
PRAYER: Second Appeal is filed under Section 100 of Civil Procedure
Code against the Judgment and Decree dated 30.10.2019 made in
A.S.No.4 of 2016 on the file of the Principal Subordinate Judge,
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Tiruppur, confirming the Judgment and Decree dated 02.02.2016 made
in O.S.No.82 of 2009 on the file of the District Munsif Judge, Tiruppur.
For Appellants : Mr.B.Thirunavukkarasu
JUDGMENT
The Second Appeal is filed against the Judgment and Decree dated
30.10.2019 made in A.S.No.4 of 2016 by the Principal Subordinate
Judge, Tiruppur, confirming the Judgment and Decree dated 02.02.2016
made in O.S.No.82 of 2009 by the District Munsif, Tiruppur.
2.One Poovathal, wife of 1st Appellant and Mother of Appellants 2
& 3 filed the Suit for declaration that she is entitled to suit property as per
the Will dated 20.09.1999, executed by her brother Palanisamy Gounder
and for consequential relief of permanent injunction restraining the
Respondents/Defendants from interfering with her possession and
enjoyment of the property.
3.The case of the Appellants in brief is as follows:
Poovathal was the sister of K.Palanisamy Gounder. Palanisamy
Gounder had good relationship with Poovathal. Poovathal treated
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S.A.No.1074 of 2021
Palanisamy Gounder's daughters as her daughters and arranged for the
conduct of their marriage. The suit property was purchased by
Palanisamy Gounder on 07.04.1970. At the time of purchase of suit
property Poovathal extended financial assistance to Palanisamy Gounder.
At the time of purchase of suit property there was some loan
encumbrance and those loans were settled by Poovathal's husband. After
the death of Palanisamy Gounder's wife, Poovathal took care of
Palanisamy Gounder. Therefore, Palanisamy Gounder had executed a
Will on 20.09.1999, in respect of the suit property in favour of Poovathal.
The Respondents/Defendants after coming to know about the execution
of Will by Palanisamy Gounder in favour of Poovathal started to interfere
with the possession and enjoyment of the suit property by Poovathal.
Therefore, suit was filed for the aforesaid relief.
4.The 1st Respondent/Defendant filed written statement and that
was adopted by Defendants 2 to 7. It is seen from the written statement
that the Respondents totally denied the execution of Will by Palanisamy
Gounder in favour of Poovathal. It is denied that Poovathal performed
marriages of daughters of Palanisamy Gounder, but they said that their
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S.A.No.1074 of 2021
marriages were performed by their parents viz., Palanisamy Gounder and
his wife. Palanisamy Gounder was not maintained by Poovathal, but she
was maintained only by the Respondents. The loan was discharged by
Palanisamy Gounder with his own funds. The loan discharge certificate
was issued on 11.03.1995. The alleged Will is not executed by
Palanisamy Gounder and it is a fabricated Will, created to make wrongful
and illegal gains. The signature in the Will is not that of Palanisamy
Gounder. It is not necessary for Palanisamy Gounder to execute the Will
in favour of his sister, when he has six daughters and 10 grand children.
During his last years, he was suffering from serious neuro problem and
was taking treatment in Ramakrishna Hospital, Coimbatore. He was not
able to write. Therefore, the signature in the Will is not that of
Palanisamy Gounder. Non judicial stamp papers used for execution of
Will was purchased in the name of S.Sampathkumar, son in law of
Poovathal. The suit properties are in possession and enjoyment of the
Respondents. Patta stands in the name of the 1st Defendant. Tax amounts
are being paid in the name of Palanisamy Gounder. The suit has no
cause of action and the Suit was filed with the help of fabricated Will.
Therefore, the suit is liable to be dismissed.
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S.A.No.1074 of 2021
5.On the basis of the above said pleadings, the trial Court framed
the following issues:
(1)Whether the Will dated 20.09.1999 is true,valid and
binding on the defendants?
(2)Whether the valuation of the suit and court fees paid
are correct?
(3)Whether the plaintiff is entitled to the relief of
declaration as prayed for?
(4)Whether the plaintiff is entitled to the relief of
permanent injunction as prayed for?
(5)To what other reliefs?
6.During the trial, PW1 to 5 were examined and Ex.A1 to A8 were
marked on the side of Appellants/Plaintiffs. Dw1 to 4 were examined
and Ex.B1 to B12 were marked on the side of Respondents/Defendants.
Ex.X1 to X3 were also marked.
7.On considering the oral and documentary evidence, the learned
trial Judge found that the execution of the Will by Palanisamy Gounder
in favour of Poovathal was not proved and therefore, Plaintiff is not
entitled for the relief of declaration and consequential relief of permanent
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S.A.No.1074 of 2021
injunction. In Appeal, the learned first Appellate Judge has also found
that Appellant has failed to establish the execution of Will by Palanisamy
Gounder in favour of Poovathal and confirmed the judgment of trial
Court by dismissing the Appeal. Now, the legalheirs of deceased
Poovathal, who died after the judgment in A.S.No. 4 of 2016, have filed
this Second Appeal, challenging the Judgment passed in A.S.No.4 of
2016.
8.Learned counsel for the Appellant submitted that Appellants
have examined PW1 to 5 witnesses and produced Ex.A1 to A8
documents to prove the execution of Will by Palanisamy Gounder in
favour of Poovathal and to show that the Appellants are enjoying the suit
property. Though, the Court below has discussed about the execution of
Will and failure of the Appellants to establish the execution of Will, there
is no discussion at all with regard to Appellants' possession and
enjoyment of the suit property. The documents produced by the
Appellants show that they are in possession and enjoyment of the suit
property. These aspects were not at all considered by the Courts below.
That apart, the oral and documentary evidences produced by the
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S.A.No.1074 of 2021
Appellants is sufficient enough to conclude that impugned Will was
executed by Palanisamy Gounder in favour of Poovathal. The Courts
below on wrong appreciation of evidence came to a wrong finding and
dismissed the Suit. Therefore, he prayed for setting aside the judgment of
the Courts below by allowing this Second Appeal.
9.Heard submission of the learned counsel for the Appellant and
perused the records.
10.From the narration of the facts above, it is evident that there is
no dispute that Suit property was purchased by Palanisamy Gounder on
07.04.1970. It is claimed by Appellants that Poovathal had extended
financial assistance to Palanisamy Gounder for the purchase of suit
property. It is also the case of Appellants that Poovathal's husband alone
settled the loan which was in existence at the time of purchase of the suit
property by Palanisamy Gounder. The other contentions in support of
Appellants case for the execution of Will by Palanisamy Gounder in
favour of Poovathal are that, Poovathal was responsible for conducting
the marriages of Palanisamy Gounder's daughters. She took care of
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S.A.No.1074 of 2021
Palanisamy Gounder, when he was ill. All the aforesaid reasons
prompted Palanisamy Gounder to execute the Will in favour of
Poovathal, is the case of the Appellants. Whether these aspects have
been proved by the Appellants are the matters required to be considered.
11.It is seen from the judgment of the learned trial Judge that the
learned trial Judge had extensively discussed the oral and documentary
evidences produced in this case with regard to the submissions of the
Appellants that Poovathal contributed money for the purchase of suit
property by Palanisamy Gounder. This case was negatived by the trial
Court on the reason that Palanisamy Gounder was an agriculturist and a
contractor. It is admitted by PW1 in her cross examination that suit
property was purchased by Palanisamy Gounder from his retirement
benefits. Appellants have not produced any material to show that
Poovathal contributed money to help Palanisamy Gounder to purchase
the suit property. When there is an admission by PW1 that suit property
was purchased by Palanisamy Gounder with his retirement benefits, the
learned trial Judge has rightly dismissed the claim of Appellants that
Poovathal contributed money for the purchase of suit property by
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S.A.No.1074 of 2021
Palanisamy Gounder.
12.With regard to discharge of loan, it was found that the loan was
discharged on 25.11.1987, when Palanisamy Gounder was alive. DW4
was examined by Respondents to show the discharge of loan. It is seen
from his evidence that the loan was discharged by Palanisamy Gounder
and not by Poovathal. Therefore, the contention of the Appellants that
Poovathal's husband Lingappan Gounder discharged the loan was held to
be not proved. One interesting aspect to be considered is that the
production of Ex.B11, plaint copy. Ex.B.11 is the copy of Plaint filed by
Palanisamy Gounder against the husband of Plaintiff Lingappan
Gounder. It is specifically stated in the Plaint that original sale deed of
Palanisamy Gounder was misplaced. The said original sale deed is now
produced by the Appellants. The reading of Ex.B.11 Plaint shows that
there was no cordial relationship between Palanisamy Gounder and
Ligappan Gounder, H/o.Poovathal. Therefore, the claim of the
Appellants that Poovathal's husband Lingappan Gounder had discharged
the loan in respect of suit property could not have been true.
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13.As regards the execution of Will, the Respondent raised several
suspicious circumstances in connection with execution of Will. They are
as follows:
“(1)There is no intention for the Palanisamy Gounder to
execute the Will.
(2)The stamp paper shows that Will was forged by the
Plaintiff.
(3)The signature found in the Will is not that of
Palanisamy Gounder.
(4)Palanisamy Gounder was not in a fit state of mind to
execute the Will.
(5)The execution of the Will is not proved in accordance
with the law.”
Apart from these suspicious circumstances, there is yet another
suspicious circumstance that admittedly, Palanisamy Gounder has six
daughters and ten grand children. When there are direct legalheirs
available to succeed to his property, what is the necessity to execute the
Will in favour of his sister Poovathal. There is no explanation.
14.The Appellants have examined PW2, one of the attestors to
prove the Will. Though PW2 gave evidence in support of execution of
Will in his chief examination, he has not appeared before the Court for
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S.A.No.1074 of 2021
facing cross examination. His evidence is incomplete and therefore, trial
Court has rightly found that incomplete evidence cannot be used to the
advantage of anyone and PW2's evidence is not useful to the case of the
Appellants to prove the execution of Will. Other witnesses examined in
support of Appellants' case have also not given satisfactory evidence with
regard to the execution of Will.
15.It is seen from the evidence of PW4 that Palanisamy Gounder
suffered paralytic attack and was immobilised. PW4 has not given any
evidence with regard to execution of Will. PW5 was examined only to
prove that Rajamanickam, his father, attested the Will. It is his evidence
that he did not identify the signature of his father in Ex.A.2, Will. Ex.A.2,
Will is typewritten Will. There is no details in Ex.A2 ,Will as to who had
typed.
16.It is the specific case of Respondents that marriage of the
daughters of Palanisamy Gounder were performed by Palanisamy
Gounder and his wife. When Appellants claimed that Poovathal was
responsible for conducting marriage of daughters of Palanisamy
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S.A.No.1074 of 2021
Gounder, there must be some evidence produced in support of this claim.
Absolutely there is no evidence in this regard. When it is claimed that
Poovathal took care of Palanisamy Gounder, PW1 admitted that
Palanisamy Gounder was maintained by his three daughters and he died
in his daughter's house. Old stamp papers purchased in the name of son-
in-law of Poovathal was used for writing the Will. When the
Respondents dispute the signature of Palanisamy Gounder in Ex.A.2,
Will, Appellants have not taken any steps to compare the disputed
signature with the admitted signature of Palanisamy Gounder by
handwriting expert. Appellants have not cleared these suspicious
circumstance. Thus, from the oral and documentary evidence produced
both the Courts have concurrently found that Appellants have miserably
failed to prove the execution of Ex.A2, Will in fvaour of Poovathal.
17.This Court also found from the pleadings in the Plaint that
though it is claimed that Palanisamy Gounder had executed Will in
favour of Poovathal on 20.09.1999, there is no pleadings with regard to
date of death of Palanisamy Gounder and from when the Will came into
effect. This is an essential pleading required to be stated in the Plaint.
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S.A.No.1074 of 2021
Absolutely, this pleadings is not available in the Plaint. On going
through the materials produced, this Court found that appellants have
failed to prove the execution of Will by Palanisamy Gounder in favour of
Poovathal. Therefore, this Court concurs with the findings of the Court
below that Appellants are not entitled for any relief claimed in the Plaint.
18.Insofar as the submission of the learned counsel for the
Appellants that the Appellants are in possession and enjoyment of the
suit property and that aspect was not considered by the Courts below,
this Court is of the considered view that Appellants have failed to
establish their entitlement for main prayer of declaration of title. It goes
without saying that they are also not entitled for the relief of permanent
injunction. Therefore, omission to consider the possession, would no
way improve the case of the Appellants. There is no substantial
question(s) of law arise for consideration in this Second Appeal.
19.Therefore, this Court confirms the Judgment and Decree dated
30.10.2019 made in A.S.No.4 of 2016 by the Principal Subordinate
Judge, Tiruppur, confirming the Judgment and Decree dated 02.02.2016
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S.A.No.1074 of 2021
made in O.S.No.82 of 2009 by the District Munsif Judge, Tiruppur and
dismisses the Second Appeal. No costs. Consequently, connected
Miscellaneous Petition is closed.
16.12.2021
Speaking Order/Non Speaking Order
Index : Yes
Internet : Yes
sai
To
The learned Principal Subordinate Judge,
Tiruppur.
https://www.mhc.tn.gov.in/judis
S.A.No.1074 of 2021
G.CHANDRASEKHARAN, J.
sai
S.A.No.1074 of 2021
and
C.M.P.No.20247 of 2021
Dated: 16.12.2021
https://www.mhc.tn.gov.in/judis
