Madras High Court
Ponnammal vs S.Veeralakshmi (Died) on 6 July, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON 01.09.2021
DELIVERED ON 15.09.2021
CORAM :
THE HONOURABLE MRS.JUSTICE S.ANANTHI
C.R.P.(MD).No.1942 of 2019
and
C.M.P(MD)No.9928 of 2019
Ponnammal ...Petitioner/Petitioner/1st defendant
Vs.
1.S.Veeralakshmi (Died) ...Respondent/R-1/Plaintiff
2.M.Prabhakar ...Respondent/R-2/2nd Defendant
3.Sivaperumal
4.Viswanathan ...Respondent Nos.3 & 4
[ R-3 & R-4 are brought on records as legal heirs of the deceased R-1, vide
Court order, dated 06.07.2021 ]
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution
of India, to set aside the fair and decreetal order, dated 22.02.2019 in O.S.No.
138 of 2016 on the file of the Principal District Court, Dindigul, Dindigul
District and allow this Civil Revision Petition.
For Petitioner :Mr.G.Gomathisankar
For R-3 & R-4 :Mr.A.S.Vijayaragavan
https://www.mhc.tn.gov.in/judis/
2
ORDER
This Civil Revision Petition has been filed against the order, dated
22.02.2019 in O.S.No.138 of 2016, passed by the learned Principal District
Judge, Dindigul, Dindigul District.
2. Originally, the suit in O.S.No.138 of 2016 was filed by the deceased
plaintiff/respondent herein for partition. During the course of evidence
through Chief examination affidavit, the revision petitioner/1st defendant had
filed a document, dated 09.09.2015 as Will which is unregistered one. But,
the plaintiff has raised an objection that the unregistered document is not a
Will and stated as settlement deed.
3. Thereafter, after hearing both sides with respect to admissibility of
the unregistered document, dated 09.09.2015, the learned Principal District
Judge, Dindigul, Dindigul District, has passed an order, dated 22.02.2019.
Aggrieved by the said order, the revision petitioner is before this Court.
4. Heard Mr.G.Gomathisankar, learned counsel appearing for the
petitioner and Mr.A.S.Vijayaragavan, learned counsel appearing for
R-3 & R-4. Perused the material documents available on record.
https://www.mhc.tn.gov.in/judis/
5.The Civil Revision Petition has been filed by the revision petitioner
against the order, dated 22.02.2019 in O.S.No.138 of 2016, passed by the
learned Principal District Judge, Dindigul, Dindigul District.
6.The plaintiff has relied upon the Judgment reported in 1979(2)MLJ
88, Ramasamy Naidu Vs.M.S.Velappan and Others. In that Judgment, the
Court held that;
“...following are some of the important tests to
determine whether a document is a Will or a
settlement,
(i) the nomenclature used by the settlor in
styling the document;
(ii) the express dis-positive words used which
touch upon the time when the vested interest is
created;
(iii) reservatior, of the power of revocation in
the instrument;
(iv) the effect of the reservation of a life estate
in favour of the executant under the instrument;
(v)registration of the document under the
appropriate law.....
In other words, it is necessary to find out the
nature of disposition in the document in question;
https://www.mhc.tn.gov.in/judis/ Whether there is transfer of any interest in praesenti
in favour of the settlee or whether the document
provides for the transfer of interest in favour of the
beneficiary on the death of the executant;.”
7.The first defendant who filed the document claimed as it is a Will.
The recitals contained in the documents are contrary to each other. The
following statements are contained in the document.
“NkYk; ,e;j capy; rhrdk; %yk;
cq;fSf;F fPof ; z;l rhl;rpfs; Kd;dpiyapy;
vOjpf;nfhLf;fg;gl;l fPof
; z;l nrhj;jJf;fis
ePq;fs; cq;fs; ,\;lk;Nghy; rh;t Rje;jpu
ghj;jpaijfSld; Mz;L mDgtpj;Jf;nfhs;s
Ntz;baJ. mlkhdk; kw;Wk; tpw;gid>
midj;J tifahd gj;jpuq;fs;
vOjpf;nfhLf;fTk; KO chpik
cs;sJ. ,e;j capy; rhrdj;jpy; fz;l
rfy mk;rq;fSk;> thrfq;fSk; ,d;W Kjy;
mKYf;F tuNtz;baJ. ,dptUk;
fhyq;fspy; vd; [Ptpa jpir fhyj;jpw;Fs;
ehd; vOjp itj;j capy; rhrdj;ij khw;wp
vOjNth my;yJ uj;J nra;aNth vdf;F
mjpfhuk; ,y;iy. ehd; ,e;j nrhj;J
rk;ke;jkhf vOJk; ,Wjpahd capy;
rhrdk; ,JNt MFk;;”.
8.The another portion of the statement is extracted hereunder:
“,JNt vd; KjYk; filrp cap;y;
rhrdkhFk; vd; Mal;fhyj;jpw;F
; s; ,e;j capy;
rhrdj;ij ,uj;J nra;ANth khw;wNth vdf;F
https://www.mhc.tn.gov.in/judis/
KO chpik cz;L.
,e;j capy; vd; Mal;fhyj;jpw;Fg; gpwNf
eilKiwf;F tUk;”; .
9. The document is not a registered one. The intention of the executor
has to be found out by the reading of entire recitals in the document.
10.The final portion contained in the Will reveals that it can be altered
or cancelled during the life time of the executor.
11.There is no evidence to show that the possession was taken and the
deed was acted upon immediately. As per recital it come into force after the
death of the executor.
12.Will can be proved only by examining attestor and after examining
the attestor we can decide it as Will or settlement deed. Now, it is in
premature.
13.Hence, this Court is inclined to set aside the order, dated
22.02.2019. If necessary, the Court can hear the matter after attesting
witnesses are examined.
https://www.mhc.tn.gov.in/judis/
14.In fine, this Civil Revision Petition is allowed by setting aside the
order, dated 22.02.2019 in O.S.No.138 of 2016 passed by the learned
Principal District Judge, Dindigul, Dindigul District. No Costs.
Consequently, connected miscellaneous petition is closed.
Index :Yes/No 15.09.2021
Internet:Yes/No
ksa
Note:In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy, shall be the
responsibility of the Advocate/litigant concerned.
https://www.mhc.tn.gov.in/judis/
To
The Principal District Court,
Dindigul,
Dindigul District.
https://www.mhc.tn.gov.in/judis/
S.ANANTHI, J.
ksa
Order made in
C.R.P.(MD).No.1942 of 2019
15.09.2021
https://www.mhc.tn.gov.in/judis/
