Nellaiappan vs Subramanian .. 1St
2021 Latest Caselaw 1738 Mad

                                                                                S.A (MD) No.715 of 2020


                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                             DATED: 27.01.2021

                                                  CORAM :

                            THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

                                         S.A (MD) No.715 of 2020 and
                                          CMP(MD).No. 7311 of 2020


                   1.Nellaiappan
                   2.Visalakshi Ammal                           .. Appellants / defendants 3 & 5


                                                          Vs.


                   1.Subramanian                                .. 1st respondent / plaintiff
                   2.Murugan
                   3.Nachiyar Ammal                         ... Respondents 2 & 3 / defendants



                   Prayer: Second Appeal filed under Section 100 CPC against the Judgment
                   and Decree dated 18.12.2018 passed in A.S.No.33 of 2017, on the file of
                   the Sub-Court, Tiruchendur, confirming the Judgment and Decree, dated
                   22.07.2009 in I.A.No.824 of 2007 in O.S.No.291 of 1992, on the file of
                   District Munsif Court, Srivaikuntam.



                                For Appellants   : Mr.M.P. Senthil




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                                                                             S.A (MD) No.715 of 2020


                                                 JUDGMENT

The defendants 3 and 5 in O.S.No. 291 of 1992 are the

appellants. This Second Appeal arises out of the proceedings launched by

the first respondent / plaintiff in the said suit seeking a supplementary

preliminary decree. The necessity for passing of the supplementary decree

arises due to the death of Ganapathivelu Pillai, the father of the first

appellant and the first respondent.

2. The original suit in O.S.No. 291 of 1992 was launched by the

first respondent herein seeking partition and separate possession of his

1/4th share in suit item Nos. 1 to 19. The trial Court decreed the suit as

prayed for. On appeal, decree was modified granting share in Item Nos. 2

to 11 alone. In respect of Item Nos. 1 and 12 to 19 and the suit came to be

dismissed upon finding that those properties are the self acquired

properties of the first defendant in the suit viz., Ganapathivelu Pillai, who

died, leaving behind the plaintiff and the defendants 2 to 5. After the

death of the first defendant, 2nd defendant filed an application in I.A.No.

824 of 2007 seeking supplementary preliminary decree claiming 5/16 share

in the Item Nos. 2 to 11 and ¼ share in Item Nos. 1 and 12 to 19. This

http://www.judis.nic.in S.A (MD) No.715 of 2020

application was resisted by the appellants herein contending that the said

deceased Ganapathivelu Pillai had executed two Wills, dated 25.05.1992

and 03.03.1996 bequeathing his share in the property in favour of the

appellants herein. In order to prove the Wills the appellants examined one

Kathirvel Murugan, who is the attestator of both the Wills. The Courts

below disbelieved the evidence of DW.2 - attesting witnesses and

concluded that the appellants have not proved the execution of the Will

dated 25.05.1992 and 03.03.1996. On the said conclusion, the Courts

below passed the supplementary preliminary decree as prayed for by the

first respondent / plaintiff. Aggrieved, the appellants have come up with

this Second Appeal.

3. I have heard Mr.M.P. Senthil learned counsel appearing for

the appellants.

4. Mr. M.P. Senthil, learned counsel appearing for the

appellants would submit that very conduct of the first respondent would

justify the execution of the Wills by the deceased Ganapathivelu Pillai,

excluding him from succession. He would contend that even during the

life time of Ganapathivelu Pillai, the first respondent had strained

http://www.judis.nic.in S.A (MD) No.715 of 2020

relationship with him and had also launched the suit seeking partition of

the properties and therefore, it is more probable that Ganapathivelu Pillai

would have executed the Wills in favour of the first appellant.

5. No doubt, the arguments appears to be very attractive, but,

unfortunately, for the appellants their claim is based on two Wills dated

25.05.1992 and 03.03.1996. In order to succeed in a claim based on a

Will, the same should be proved in accordance with law removing all

suspicious circumstances surrounding the execution of the Will. From the

circumstances, no doubt, it can be safely concluded that no suspicious

circumstances have been made out in the case on hand, because of the

strained relationship between the testator and the first respondent herein.

Still the appellants will have to prove the execution of the Will. The

evidence of DW.2 attesting witnesses has been placed before me. I can

straight-away say that the requirements of Section 68 of the Evidence Act,

has not been satisfied. He does not even state that he had seen the testator

signing the Will and that both the attesting witnesses were present at the

time of execution. In the light of such laconic evidence I do not find any

infirmity in the Courts below disbelieving the evidence of DW.2. Despite

his best efforts, the learned counsel appearing for the appellants is unable

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to demonstrate that the factual findings of the Courts below are perverse.

He is unable to point out any questions of law, much less a substantial

question of law arising in this appeal.

6. Accordingly, this Second Appeal is dismissed, without

being admitted. No costs. Consequently, the connected Miscellaneous

Petition is closed.

27.01.2021 Index : yes/no Internet : yes/no trp

To

1. Sub Court, Tiruchendur,

2. The District Munsif Court, Srivaikuntam.

http://www.judis.nic.in S.A (MD) No.715 of 2020

R.SUBRAMANIAN,J.,

trp

S.A (MD) No.715 of 2020 and CMP(MD).No. 7311 of 2020

27.01.2021

http://www.judis.nic.in