Madras High Court
D.Francis (Died) vs Anthoni Kurus (Died) on 11 January, 2021
A.S.No.1150 of 1994
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.01.2021
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.No.1150 of 1994
D.Francis (Died)
2.Arokia Mary
3.Arokia Raj @ Robert
4.Helan Mary (Died)
5.Sebastian
6.Adaikalarani
7.Arokia Mary
8.Antony Raj
9.Janatha
10.Kennedy
11.Minor Anushamary
12.Minor Christhu Priya ... Appellants
Vs.
1.Anthoni Kurus (Died)
2.Joseph
3.Theresas (Died)
4.Maria Pushpam (Died)
5.Arokkia Mary (Died)
6.Dr.A.Kanniah
7.Melkis Alias Rajendran
8.Arulraj
9.Amirtharaj
10.George
11.Savari Ammal Alias Deisi Rani
12.Rajamanickam Alias Shakila
13.Thangamaria Ammal Alias Senthamarai
14.Maria Kalaiselvi
15.Dawood Raju
1/18
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16.Anthoniammal
17.Thiraviyam
18.J.Jeya
19.S.Albonsa
20.P.Rosalin Mary
21.A.Raj
22.A.Arockiyaraj
23.M.Rajathi
24.K.Gladisha
25.Anjala
26.Baskar
27.Jeya
28.Sekar
29.Mary Navamani
30.Rani
31.Santhi
32.Anthoniammal
33.Jacquelyn
34.Alexander
35.Roux Ramnad
36.Juliet Mary
37.Johnson
38.Kavitha
39.Kennady
40.Edwin
41.Prabakaran (Died)
42.Roopa @ Arokkiaraj
43.Ramadevi ... Respondents
(Appellants 2 to 9 were brought on record as legal representatives of the
deceased sole appellant, vide order of this Court, dated 26.08.2003 in
C.M.P.Nos.7847 to 7849 of 1999.
Appellants 10 to 12 were brought on record as legal representatives of the
deceased 4th appellant, vide order of this Court, dated 14.08.2018 in C.M.P.
(MD)Nos.4925 to 4927 of 2017.
Minor appellants 11 and 12 are represented through their Natural
Guardian /Father, the 10th appellant.
2/18
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RR16 to RR24, RR25 to RR38 and RR39 to RR43 were brought on record
as legal representatives of the deceased first, third, fourth and fifth
respondents, respectively, vide order of this Court, dated 28.04.2017 in
C.M.P.(MD)Nos.98 to 100 of 2017 and 233 to 241 of 2017)
PRAYER: First Appeal is filed under Section 96 of the Code of Civil
Procedure, to set aside the judgment and decree in O.S.No.156 of 1989,
dated 28.01.1992 on the file of the Subordinate Court, Pudukottai.
For Appellants : Mr.A.R.L.Sundareshan
Senior Counsel
for Mrs.AL.Ganthimathi
For R7, R9 to R11, R13 to, R32,
R34 to R40 and R43 :No Appearance
R1 to R6 and R8, R41 :Died
For R12, R33 and R42 :Dispensed with
***
JUDGMENT
Aggrieved over the dismissal of the suit in O.S.No.156 of 1989 in
respect of T.S.No.5363/1B, for an extent of 5280 sq.ft, the present appeal
came to be filed.
2.The brief facts leading to the filing of this appeal are as follows:
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2.1.The plaintiff and defendants 1 and 2 are the sons of one Dawood.
The defendants 3 to 5 and one Philomina are all the daughters of said
Dawood. The 6th defendant is the husband of Philomina. Defendants 7 to 10
are the sons of Philomina and defendants 11 to 14 are the daughters of said
Philomina. The 15th defendant has no right whatsoever in the suit property.
The first defendant in collusion with the 15th defendant instigated the 15th
defendant to file the suit in O.S.No.160 of 1984.
2.2.In the above suit, the 15th defendant propounded the Will said to
have been executed by Dawood, father of the plaintiff in respect of one item
of the suit property. In the above suit, the plaintiff and defendants 1 to 5
were not made as parties. The said suit was decreed in favour of the 15th
defendant. The Will propounded in the above suit is fabricated and never
executed by Dawood, while he was in sound state of mind. In fact, the said
Dawood was affected by paralysis and has no mental capacity to execute the
Will. Based on the above decree, the 15 th defendant is trying to enter into
the possession of the property. The 15th defendant has no right whatsoever
in respect of the suit property. Therefore, the plaintiff and defendants 1 to 5
have each entitled to 1/7 share in the suit property.
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2.3.The third defendant filed a written statement and the defendants
2, 4 and 5 have adopted the same. It is their contention that the suit
property is absolutely belonged to the father, Dawood. After his death, the
plaintiff and defendants 1 to 14 are in joint possession of the property. The
15th defendant has no right whatsoever in the suit property. The decree and
judgment in O.S.No.160 of 1984 is not binding on the plaintiff. The Will is
fabricated.
2.4.The 15th defendant has filed a written statement admitting that the
suit property is belonged to late Dawood. The plaintiffs, defendants 1 and 2
are the sons of Dawood and they did not take care of the said Dawood. The
plaintiff and other defendants has not looked after the first defendant and
his wife, Sainabu. Therefore, his grandfather, late Dawood bequeathed the
property in T.S.No.5363/1B including the house property in favour of the
15th defendant, on 05.01.1982. After the death of Dawood, the Will came
into force and the Will was known to every other legal representatives.
2.5.The first defendant had driven out the 15th defendant and his
mother and threatened them to usurp the property and thereby, the 15 th
defendant had filed the suit in O.S.No.160 of 1984 against the first
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defendant and others. The above suit has been decreed in favour of the 15th
defendant. The above judgment and decree has reached finality. Therefore,
the plaintiff and others have no right whatsoever in respect of the property
in T.S.No.5363/1B. The plaintiff and others were aware of the Will.
Therefore, they are not entitled to any property and prays for dismissal of
the suit.
2.6.Based on the above pleadings, the trial Court has framed the
following issues:
“(1)Whether the Will, dated 05.01.1982 executed by Dawood in
favour of the 15th defendant is true and valid?
(2)Whether the suit in O.S.No.160 of 1984 on the file of the
Subordinate Court, Pudukottai, was filed in collusion?
(3)Whether the decree and judgment in O.S.No.160 of 1984 is
binding on the defendants 2 to 5 and the plaintiff in the suit property?
(4)Whether there was a marriage between the first defendant and one
Sainabu Amma?
(5)Whether the suit property is liable for partition?
(5)What relief, the plaintiff is entitled to?
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2.7.On the side of the plaintiff, the plaintiff was examined as PW-1
and Ex-A1 to Ex-A3 were marked. On the side of the defendants, DW-1 to
DW-3 were examined and Ex-B1 to Ex-B16 were marked.
2.8.On the basis of the evidence and materials, the trial Court granted
the preliminary decree for 1/7 share in favour of the plaintiff, defendants 1
to 14 and dismissed the suit in respect of T.S.No.5363/1B for an extent of
5280 sq.ft. As against which, the present appeal has been filed.
3.The learned Senior Counsel appearing for the appellants would
contend that the parties are Christians and therefore, Indian Succession Act
would apply. Though the 15th defendant claiming to be legitimate son born
through the first defendant, the same has not been established. The
evidence of DW-1, the mother of 15th defendant, itself clearly indicates that
the alleged marriage has not been established and the birth of the 15 th
defendant to first defendant was also not been established. It is his
contention that the so called Will, dated 05.01.1982 said to have been
executed by Dawood, original owner of the suit property, has not been
probated, which is mandatory under law at the relevant point of time.
Therefore, the Will ought not to have been relied upon by the the trial Court
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in negativing the claim of the plaintiff.
4.It is his further contention that the Will is unregistered. The
evidence and witnesses has also further indicate that the testator has
suffered from serious ailments and he was paralysed. Therefore, the
question of testator executing the Will in a sound disposal state of mind,
itself is doubtful. It is the further contention of the learned Senior Counsel
for the appellants that the 15th defendant said to have been filed a suit in
O.S.No.160 of 1984 against the first defendant, based on the said Will. The
trial Court has relied upon the above judgment as against the defendants.
Admittedly, the plaintiff and other defendants are not parties to the above
suit. Hence, it is his contention that the decree and judgment in O.S.No.160
of 1984 is not binding on the plaintiff and defendants 1 to 14. Whereas, the
trial Court has simply relied upon the above judgment.
5.That apart, it is his contention that the original Will has not been
produced before this Court and only the certified copy of the Will was filed
on the ground that the original Will filed before the trial Court in O.S.No.
160 of 1984 has already been destroyed. The said contention itself is highly
improbable. It his contention that without original being available, the
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question of granting certified copy by the Court would not have arisen in
this case and it is also doubtful. It is his further contention that though one
of the attesting witnesses has not supported the alleged execution of Will,
he has not been cross examined by the 15 th defendant and other attesting
witnesses do not satisfy the compliance of Section 63(c) of the Indian
Succession Act and Section 68 of Indian Evidence Act. Hence, it is his
contention that the plaintiff is entitled to share in T.S.No.5363/1B. Hence,
he prays for allowing this appeal.
6.Despite service of notice, none appeared on behalf of the
respondents. In the light of the above submissions, now the points arising
for consideration in this appeal are as follows:
“(1)Whether the 15th defendant is the son of the first
defendant?
(2)Whether the judgment and decree in O.S.No.160 of 1984 is
binding on the plaintiff, defendants 2 to 14, who are not parties to
the above proceedings?
(3)Whether the Will, dated 05.01.1982 stated to have been
executed by one Dawood is proved in a manner known to law?
(4)To production of secondary evidence, whether the 15th
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respondent has complied with the provisions of Section 65 of the
Indian Evidence Act?
(5)To what other reliefs, the parties are entitled to?
7.The suit has been laid claiming share in the property owned by one
Dawood. The relationship between the parties is not in dispute. The
plaintiff, defendants 1 and 2 are sons and defendants 3 to 5 and one
Philomina are daughters of Dawood. The 6th defendant is the husband of
Philomina. The defendants 7 to 10 are sons and defendants 11 to 14 are
daughters of Philomina. These facts are not disputed by the parties to the
suit. The 15th defendant claims to be the illegitimate son of the first
defendant born through one Sainabu, who said to have been married the 1st
defendant. The said Sainabu was examined as DW-1 before the trial Court.
8.In the issue No.4 framed before the trial Court with regard to the
marriage between the said Sainabu and the first defendant, after analysing
the entire materials and documents, the trial Court has specifically held that
the marriage between Sainabu and the first defendant has not been
established, which has not been challenged by way of cross appeal or cross
objection by the 15th defendant. The finding against the 15th defendant
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remains unchallenged. Be that as it may, the entire evidence of DW-1 was
scanned. Except contending that she left the house of the 1st defendant,
there is no evidence to show that the 15th defendant was born to the first
defendant.
9.It is the main contention of the 15th defendant that Ex-B5, the
alleged Will, dated 05.01.1982, has been executed by Dawood in favour of
the 15th defendant. Based on which, he has filed a suit in O.S.No.160 of
1984. Ex-B2, the copy of judgment in O.S.No.160 of 1984, dated
30.04.1986, has been carefully scanned. The above suit has been filed
against the first defendant and other tenants. He took a stand that the 15 th
defendant not born to first defendant and disputed the relationship also. In
one of the issues that was framed in the above suit with regard to the so
called Will, dated 05.01.1982, the trial Court in the above suit in O.S.No.
160 of 1984, has held that the Will is proved and found that the 15 th
defendant herein, who was the plaintiff in O.S.No.160 of 1984, was born to
the first defendant herein. The above judgment is also not challenged by the
1st defendant. The relationship between the first defendant and 15th
defendant has been clearly held in the earlier suit in O.S.No.160 of 1984.
The above findings has not been challenged. Therefore, merely because, in
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the present suit, the trial Court has not specifically recorded a finding, as to
whether the 15th defendant was born to first defendant, the same is not a
ground for denying the relationship. Since both the Courts have already
decided the nature of relationship between the 15th defendant and 1st
defendant, this Court hold that the 15th defendant is born to first defendant
and DW-1. Though the fact that the marriage between the 1st defendant and
DW-1 is not established, the fact remains that the 15th defendant is born to
the first defendant and DW-1.
10.It is to be noted that since the Will takes away the normal rights of
succession of the persons, who has interest in the immovable property,
ought to have been made as a party. All the persons, who have interest in
the immovable property, normally to be made as a parties. Admittedly,
except the first defendant herein, the other legal representatives of the
original owner Dawood, were not made as parties to the suit in O.S.No.160
of 1984. Therefore, the judgment and decree in O.S.No.164 of 1984 is not
binding on the plaintiff and defendants 2 to 14, since they are not parties to
the suit.
11.It is also well settled that the judgment or decree passed in
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previous civil proceedings are relevant, if the proceedings are between the
same parties and the relief is also same and the previous judgment will
binding on the parties, as per Sections 40 and 42 of Indian Evidence Act,
while deciding the nature of relief, the Court has to see whether all the
parties, against whom the judgment sought to be obtained made parties in
the previous case. Admittedly, in this case, the plaintiff and defendants 2 to
14 are not parties and therefore, the judgment is not binding on the plaintiff
and defendants 2 to 4. The lower Court gave much importance to the
judgment and decree in O.S.No.160 of 1984 against the parties to the
present suit is against the very fundamental principle of law.
12.In the light of the above, now it is seen that the Will, dated
05.01.1982 has been proved in the manner known to law, as against the
other defendants. Admittedly, the plaintiff and other defendants are the
original legal heir of deceased Dawood. The person, who claims to be
legitimate son and taking benefit of the Will, has to prove the Will. He has
to prove not only the Will, but also the testamentary capacity of the testator
at the relevant point of time. It is to be noted that the testator was aged
more than 80 years at the relevant point of time and not in a position to
walk and suffered from serious ailments. In such view of the matter, the
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burden is always on the propounder, not only to prove the Will, but, also to
establish the testamentary capacity of testator, who executed the Will.
13.It is the contention of the 15th defendant that the Will was
executed in the presence of witnesses. It is to be noted that the Will was
written in two white papers. The xerox copy of the Will, Ex-B5 makes it
clear that there are four witnesses cited. It is to be noted that the Will was
written by the document writer. There was no reason as to why it was
written in a white papers. It is a common knowledge that whenever a Will
was prepared by the document writer and scribe will type or write the Will
legibly and a Will normally be typed or written legibly. Whereas, the Will
produced in this case written on two white papers. In fact, it probabilise the
theory of the plaintiff that the white papers have been misused. It is also
relevant to note that one of attesting witnesses, who was examined on the
side of the defendants, namely, DW-2, has not supported the Will and the
attestation of the Will. He never spoke about the presence of DW-3, DW-2
in his evidence has stated that he was present while the Will was written in
one Muthiah's house.
14.DW-2 though in his evidence has stated that while the document
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writer signing the document, the testator has seen DW-2. His evidence does
not indicate that other witness has seen the testator signing the document
Whereas, one of the attesting witnesses, namely, DW-2 turned hostile. He
has not been confronted nor cross examined by the first defendant. Further,
the evidence of DW-2 would clearly indicate that he was also actively
participated in preparing the Will and his participation is apparent from his
evidence, in getting a Will from a person, who was aged about more than 80
years and he was also paralysed and suffered from ailments.
15.The evidence adduced on the side of the propounder is not
dispelled the various suspicious circumstances attached to the Will, namely,
the Will has been just written in the white paper. One of the witnesses has
also not supported and the active participation of DW-2 is also one of the
suspicious circumstances, which has not been dispelled. This suspicious is
further forfeited the fact that the original Will has not seen the light of the
day.
16.It is to be noted that the certified copy of the Will filed as Ex-B4
and xerox copy of the same was also filed as Ex-B5. The explanation was
offered for filing the secondary evidence that the certified copy of the
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original Will filed in the earlier suit, namely O.S.No.160 of 1984 was
destroyed by the Court, therefore, the certified copy is filed. Such
explanation, on careful perusal of the materials, is found to be false for the
simple reason that the certified copy of the Will itself obtained in the year
1989. If the documents, which he relied upon were destroyed, the Court
would not have issued the certified copy in the year 1989. Therefore, non
filing of the original Will also creates serious doubt. Further, for filing the
certified copy, the compliances under Section 65 of the Indian Evidence
Act, have not been followed. Further it is to be noted that the parties are
belong to the Christian, which is not in dispute. Therefore, if at all, the Will
sought to be enforced, as per the law stood prior to the amendment of the
Act 26 of 2002, the Will ought to have been probated. Unless, the Will is
probated, no right as legatee could be established in a Court of law.
17.For all the above ground also, the trial Court ought not to have
upheld the Will. Accordingly, all the points are also answered and the
appeal is allowed and the judgment and decree of the trial Court in O.S.No.
156 of 1989 in respect of T.S.No.5363/1B is set aside. The plaintiff is
entitled to 1/7 share in the suit property. The defendants 1 and 2 are each
entitled to 1/7 share. The defendants 3 to 5 are each entitled to 1/7 share.
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The defendants 6 to 14 are together entitled to 1/7 share in the suit property.
18.Accordingly, this first appeal is allowed. No costs.
Index : Yes/No 11.01.2021
To
1.The Subordinate Judge, Pudukottai.
2.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court, Madurai.
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A.S.No.1150 of 1994
N.SATHISH KUMAR, J.
cmr
A.S.No.1150 of 1994
11.01.2021
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