Madras High Court
A.Subramanian vs Pasunkili on 20 July, 2021
SA (MD) NO.322 OF 2004
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20 / 07 / 2021
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
SA (MD) NO.322 OF 2004
AND CROS. OBJ (MD) NO.5 OF 2013
AND CMP (MD) NO.5827 OF 2019
A.Subramanian ... Appellant in S.A.No.322/2004
st
1 respondent in Cross. OBJ(MD).No.5/13
Vs.
1.Pasunkili
2.J.Sornam .. Respondents 1 and 2 in SA(MD).No.322/2004
Cross Objectors in Cross. OBJ(MD).No.5/13
3.A.Ramachandran
4.M.Gomathi Respondents 3 and 4 in SA.No.322/2004
Respondents2&3 in Cross. OBJ(MD).No.5/13
PRAYER in SA(MD).No.322 of 2004: Second Appeal filed under Section
100 CPC against the judgment and decree made in A.S.No.154 of 2003
dated 19.03.2004 on the file of the I Additional District Judge, Tirunelveli,
modifying the judgment and decree made in O.S.No.351 of 1998 dated
03.04.2003 on the file of the II Additional Sub Judge, Tirunelveli.
PRAYER in CROSS OBJ(MD).No.5 of 2013: Cross Objection filed
under Order 41 Rule 22 CPC 100 CPC against the judgment and decree
dated 19.03.2004 made in A.S.No.154 of 2003 on the file of the I
Additional District Judge, Tirunelveli, modifying the judgment and decree
made in O.S.No.351 of 1998 dated 03.04.2003 on the file of the II
Additional Sub Judge, Tirunelveli.
1/22
https://www.mhc.tn.gov.in/judis/
SA (MD) NO.322 OF 2004
For Appellant : Mr.M.V.Venkataseshan
For Respondents 1&2: Mr.G.Venugopal
JUDGMENT
This Second Appeal has been preferred against the judgment and
decree passed in A.S.No.154 of 2003 dated 19.03.2004 by the learned I
Additional District Judge, Tirunelveli, partly allowing the appeal preferred
against the judgment and decree passed in O.S.No.351 of 1998 dated
03.04.2003 by the learned II Additional Sub Judge, Tirunelveli.
2.The first defendant is the appellant before this Court. The
plaintiffs / respondents 1 and 2 herein filed cross appeal against the
reversal of the judgment and decree made by the Lower Appellate Court
setting aside the decree and judgment passed in O.S.No.351 of 1998.
3.The parties are called as per their litigative status in the Suit.
The Suit was filed for partition of the property. The parties are
children of one Arumugam Pillai and Rajammal. The defendants 1 and 2
are the brothers, defendant 3 is the sister of the plaintiffs.
https://www.mhc.tn.gov.in/judis/
SA (MD) NO.322 OF 2004
4.According to the plaintiffs, their parents Arumugam Pillai and
Rajammal died intestate leaving them as legal heirs of the properties. The
plaint First Schedule of the property belong to Arumugam Pillai, plaint
Second Schedule owned by Rajammal and the plaint Third Schedule are
the movables. The father of the parties Arumugam Pillai died intestate on
21.12.1997 and the mother died intestate on 14.01.1998 within 24 days
from the date of her husband's death. The plaintiffs demanded equal shares
of the suit schedule properties from the defendants. Since they did not
cooperate for effecting partition, they issued a legal notice dated
18.02.1998. Though it was acknowledged by the defendants, no reply
notice was given. Therefore, the plaintiffs filed the Suit for partition.
5.The defendants filed written statement that the suit schedule
properties are self acquired properties of their parents and Arumugam
Pillai and Rajammal were not at all owning the jewels and other movable
items mentioned in the plaint Third Schedule. The claim of the plaintiffs
that their parents died intestate is false and on the other hand, his father
Arumugam Pillai has executed a WILL on 31.10.1997 bequeathing his
properties mentioned in plaint First Schedule in favour of the defendants 1
https://www.mhc.tn.gov.in/judis/
SA (MD) NO.322 OF 2004
and 2 and their mother Rajammal also executed a registered WILL on
10.08.1992 bequeathing the plaint Second Schedule properties in favour
of her sons viz., defendants 1 and 2. They are in possession and enjoyment
of the properties and collecting rent from the buildings for themselves.
The plaintiffs are not having any joint right and not in joint enjoyment
over the plaint I and II Schedule properties. Since the plaintiffs stated that
they will not litigate, the defendants have not issued any reply notice.
6.Based on the pleadings, the Trial Court framed seven issues
and decreed the Suit for partition. Against which, the first defendant
preferred an appeal and also filed an interlocutory application to receive
additional documents. The Lower Appellate Court after framing
appropriate points for consideration, confirmed the finding with respect to
the WILL executed by the father and set aside the finding with respect to
the WILL executed by the mother and allowed the appeal in part. While
allowing the appeal, the interlocutory application filed for receiving
additional documents was also dismissed. Aggrieved over the same, the
first defendant preferred the above Second Appeal and the plaintiffs
preferred the cross appeal.
7.Heard the submissions made on either side.
https://www.mhc.tn.gov.in/judis/
SA (MD) NO.322 OF 2004
8.On 04.11.2004, the above Second Appeal is admitted on the
following substantial question of law: -
“Whether the Courts below are right in holding
that Late Arumugam Pillai did not execute the WILL
Ex.B9 by comparing the signature of the executant when
one of the attesting witness was examined to prove the
execution?”
9.The admitted facts are as follows :-
10.The parties are children of Arumugam Pillai and Rajammal.
Arumugam Pillai is the owner of the properties mentioned in plaint First
Schedule and Rajammal is the owner of the properties mentioned in plaint
Second Schedule. The parties were having cordial relationship till the
death of their parents. The parties have not seriously disputed about the
movable properties mentioned in the plaint Third Schedule. According to
the plaintiffs, their parents died intestate and they have not executed any
WILL to their knowledge. On the other hand, the defendants would
https://www.mhc.tn.gov.in/judis/
SA (MD) NO.322 OF 2004
contest that their parents have executed two WILLS, one by their father
dated 31.10.1997 marked as Ex.B9 in support of the properties mentioned
in the plaint First Schedule and Ex.B10 by their mother on 10.08.1992
with regard to the properties mentioned in the plaint Second Schedule.
Ex.B9 is an unregistered WILL and Ex.B10 is a registered WILL.
11.Before the Trial Court, plaintiffs examined five witnesses as
P.W.1 to P.W.5 and marked 13 documents vide Exs.A1 to A13. On the side
of the defendants, three witnesses were examined as D.W.1 to D.W.3 and 6
documents were marked as Exs.B1 to B6.
12.The first plaintiff deposed as P.W.1 would clearly state that
her parents never executed any WILL. After the death of her father, her
mother was collecting the rentals and after her death, she claimed 1/5th
share in the suit schedule properties. Since the defendants did not
cooperate, she issued a legal notice dated 18.02.1998, which is marked as
Ex.A1 and it was acknowledged by the defendants and marked as Ex.B2.
According to her, was there any WILL executed by her parents, the
defendants would have replied the legal notice issued by her and brought
out the fact that there was a WILL. On the other hand, they kept silence
https://www.mhc.tn.gov.in/judis/
SA (MD) NO.322 OF 2004
which raises suspicion that the WILL was fabricated after issuance of the
legal notice. Secondly, her mother has mortgaged her property with one
Susila Raman and the mortgage deed was marked as Ex.A6 and it was
made over to one Ramasamy by Susila Raman on 17.02.1998 vide Ex.A7.
She had discharged the debt and redeemed the mortgage vide Ex.A8.
When she requested the defendants to redeem the mortgage, they refused
to do so. On 11.05.1998, she redeemed the property from the said
Ramasamy. If the WILL is true, the defendants would have redeemed the
property from mortgage. Therefore, it is the second suspicious
circumstance with regard to execution of the WILL.
13.The plaintiffs are residing in Tirunelveli and they were taking
care of her parents, who were residing in the same town. The defendants
are residing in Tuticorin and therefore, the contention that the WILL was
executed at Tuticorin raises suspicion. She would further raise a suspicion
with regard to the signature of her father Arumugam Pillai. Her father used
to sign in Tamil in all the documents, whereas, in the WILL his signature
is found to be in English. The signature found in the WILL is not that of
her father and there is difference in signature. This is also other suspicious
circumstances with regard to the genuine execution of the WILL.
https://www.mhc.tn.gov.in/judis/
SA (MD) NO.322 OF 2004
14.Further, the second defendant had executed a Power of
Attorney in favour of one Manickam Pillai. But, she denied the execution
of the document. In order to prove that the Power of Attorney was
executed by him, the disputed signature and admitted signature were sent
to Forensic examination / handwriting expert as well as finger print expert
and they deposed as P.W.4 and P.W.5. They found that the signature made
by the second defendant in both the Power of Attorney as well as the
admitted signatures are one and the same. Therefore, the suppression of
this fact before the Court proved that the second defendant has not come
with clean hands. The Power of Attorney, which is executed in the year
1998, does not reflect the execution of the WILL made in the year 1992 or
1997. Therefore, no WILL was available till 1998 i.e., till the death of her
parents. Therefore, the execution of Ex.B9 also raises suspicion. Apart
from that, the attesting witness during cross examination would depose
contradictorily. Therefore, his presence was also doubtful. Hence, Exs.B9
and B10 are fabricated documents. The Forensic expert also given a report
that the signature of Arumugam Pillai as found in the WILL does not tally
with the admitted documents marked before the Court. On the side of the
defendants, they would examine the attesting witnesses of Exs.B9 and B10
https://www.mhc.tn.gov.in/judis/
SA (MD) NO.322 OF 2004
for the purpose of proving the WILL.
15.In so far as Ex.B9 is concerned, it is a WILL executed by
Arumugam Pillai. Ex.B2 is a letter written by Arumugam Pillai dated
24.10.1997. The post card written by Arumugam Pillai shows that he was
in Tuticorin at the relevant point of time. Further, the plaintiffs in her
evidence would state that it is the usual habit of her father to go to
Kandhasasti at Tiruchendur, immediately after Deepavali. Therefore, the
presence of Arumugam Pillai at Tuticorin at the time of execution of
Ex.B9 on 31.10.1997 is probabilized. However, the WILL is said to have
been executed in the absence of the first defendant at his house. It is stated
that the said Arumugam Pillai called D.W.2, who is residing in the very
same compound to attest the WILL. He would depose that he has seen the
testator affixing his signature and he and other person attested the WILL.
However, the attesting witness of Ex.B9 has not deposed clearly as to the
preparation of the WILL and the arrival and leaving of Arumugam Pillai to
Tuticorin. He would depose that he was not aware as to when Arumugam
Pillai came to Tuticorin and when he left. Further, he was not aware as to
who prepared the WILL – Ex.B9 and where it was typed and how the
other attesting witness came to the place of execution. The defendants
https://www.mhc.tn.gov.in/judis/
SA (MD) NO.322 OF 2004
have not also examined the other attesting witnesses to explain. Therefore,
the deposition of D.W.2 attesting witness to Ex.B9 is not clear and not
trustworthy.
16.In support of the contention that the WILL was not genuine
and surrounded by suspicious circumstances, the learned counsel for the
respondents 1 and 2 relied on the following judgments: -
(i)Judgment of this Court in P.JAYAJOTHI AND OTHERS VS.
J.RAJATHI AMMAL AND OTHERS [2019 (2) LW 488].
“28. From the judgments relied upon by both
sides, it is settled that if there are suspicious
circumstances, the burden lies on propounder of the Will to
dispel all the suspicious circumstances to the satisfaction
of the Court keeping in mind the various principles and the
legal position laid by the Honourable Supreme Court. This
Court is able to see that the suspicious circumstances are
not explained in this case and that it has not been
established to the satisfaction of the Court that the Will
was prepared and executed by the testator out of his own
free will and volition, after knowing the contents of the
https://www.mhc.tn.gov.in/judis/
SA (MD) NO.322 OF 2004
Will. In this case, the unnatural disposition is one of the
suspicious circumstances projected by the appellants. The
fact that the testator has not left any property to his wife
is not in dispute. The explanation by the respondents that
the entire sale consideration after selling another property
under Ex-A8 is offered before this Court. First of all, it is
not proved by any concrete evidence that the entire sale
proceeds by selling yet another property was paid to the
mother. Secondly, the sale deed under Ex-A8 was after the
Will. At the time of execution of the Will, the testator
would have given the property sold by him later to his wife
under the Will.
29. The Will has been attested by strangers,
who have no connection whatsoever to the family of the
testator. The testator would have obtained the signature
from his wife, as she is not a beneficiary of the Will and
her signature will carry more weight. It is admitted that
the testator's wife, namely, the first defendant has
attested the sale deed under Ex-A8. Hence, it is probable
that the Will came into existence without the knowledge
of mother, the first defendant. It is stated by the
respondents that the first defendant filed an independent
https://www.mhc.tn.gov.in/judis/
SA (MD) NO.322 OF 2004
written statement supporting the case of the respondents.
It is only in the said written statement, she has stated that
she was present at the time of execution of the Will.
Mother was not examined as a witness. Mother is old and
she could not have given instruction for filing written
statement. This Court cannot accept the written statement
filed by her before her death as solomon truth.”
(ii)Judgment of this Court in K.CHELLAPPAN VS.
PANCHARANI AND OTHERS [2020 (2) MWN (CIVIL) 294].
“19. This Court is of the considered opinion that
whether a particular Will is surrounded by suspicious
circumstances or not is a question of fact and it depends
upon the facts and circumstances of each case. While the
execution of the Will is attended by suspicious
circumstances, the propounder has to explain the
circumstances and has to remove the suspicion of the Court
in order to satisfy the conscious of the Court. A shaky
signature, a feeble mind, an unfair and unjust disposition
of property, the propounder himself taking a leading part
in making of the Will under which, he receives substantial
https://www.mhc.tn.gov.in/judis/
SA (MD) NO.322 OF 2004
benefits, interventions, arbitrations and alterations in the
Will are all in the nature of circumstances, which shows
the suspicion about the execution of the Will itself.
20. Considering these principles, this Court has
to apply the facts and circumstances placed and
established before the Trial Court. The primary facts are
that till such time the Will was filed before the Trial Court
after institution of the suit, the plaintiffs as well as the
defendant were unaware of the facts. The said factum was
not disputed by the defendant before the Trial Court. They
were taken by surprise when the Will was introduced by
the defendant to the other heirs of the deceased father. The
said circumstances are able to be ascertained with reference
to the manner in which the facts were placed before the
Trial Court and the pleadings were made in this regard.
Careful perusal of the pleadings as well as the documents
placed before this Court, this Court is able to ascertain
that at the time of execution of the Will by the father,
undoubtedly the plaintiffs as well as the defendant were
not aware about the execution of any such Will. Secondly,
even before this Court the parties to the appeal suit were
admitted that there was no dispute or strained relationship
https://www.mhc.tn.gov.in/judis/
SA (MD) NO.322 OF 2004
between the father and children. The father showered
equal love and affection with all the children throughout
his life time and, there was no enmity or otherwise.
Further, it is contended that all along the sisters and the
brother were attending the father by frequently visiting his
house. In the absence of any such strained relationship and
in normal circumstances, a father would divide his
properties equally to all the children and if the position is
other wise, it is the bounden duty of the party benefited
out of such Will to establish and prove, if the father has
taken a contrary view. This Court is of the opinion that
when a father, in normal circumstances, is bequeathing
property to the advantage of one of the sons, there must be
some reason. It is further contended by the other legal heirs
of the deceased father that the defendant at no
circumstances had contributed anything to the father
except by utilising the property, which was purchased by
the father.”
17.It is the well settled principle that the propounder of the
WILL shall dispel the suspicious circumstances. But, in this case, the
attesting witness does not come out with a clear case and the defendants
have failed to remove the suspicion by leading sufficient and cogent
https://www.mhc.tn.gov.in/judis/
SA (MD) NO.322 OF 2004
evidence. On the other hand, the evidence of P.W.4 and P.W.5, handwriting
expert and fingerprint expert would go to show that the thumb impression
as well as the signature found in Ex.B9 are not same and does not belong
to the same person. There is some difference in the signature and thumb
impression. It should be borne in mind that the application was made for
comparison of the fingerprint as well as the signature of the testator. It was
forwarded by the Court to the Forensic Sciences Department. It is also
admitted that P.W.4 and P.W.5 are working as Scientific Officers in
Forensic Sciences Department. Even though the qualification to depose
evidence has been impeached by the defendants, the Court has come to the
clear conclusion that the signature found in Ex.B9 is entirely different.
The defendants have further failed to categorically prove that the signature
found in Ex.B2 in English and the signature found in Ex.B9 are one and
the same. In so far as the defendants failed to remove the suspicion by
leading sufficient and cogent evidence, they have to fail. In that view of
the matter, I find that the defendants have failed to prove the genuine
execution of the WILL dated 31.10.1997 marked as Ex.B2 and therefore,
the concurrent finding of the Courts below need not be interfered.
18.In so far as Ex.B10 is concerned, it is stated that the mother
https://www.mhc.tn.gov.in/judis/
SA (MD) NO.322 OF 2004
of the parties namely Rajammal executed a WILL on 10.08.1992. D.W.3 is
an attesting witness. He would clearly depose before the Court that he has
seen the testator affixing her signature in the WILL. She had signed in
front of the attesting witnesses. The testator is relative of him and the
testator herself has given the details for preparing the WILL. It was
prepared by one Udaiyar, who is no more. He would further depose that at
the time of execution of the WILL, the testator was in sound and disposing
mind and she signed in front of the Sub Registrar and it was registered
after they have identified Rajammal. Oral evidence given by this witness
could not be impeached during cross examination. The plaintiffs would
attempt to impeach him on the ground that he was on duty on 10.08.1992
and there is contradictory evidence that he was on leave and on duty on
the same day. In order to prove that he was on duty, the plaintiffs have
examined P.W.2.
19.In the considered opinion of this Court, it is the well settled
principle that onus is on the propounder to prove that the WILL was
executed by the testator and that the testator has put her signature out of
her own freewill and accord and in a sound disposing of mind, having
understood the nature and effect of the document.
https://www.mhc.tn.gov.in/judis/
SA (MD) NO.322 OF 2004
20.In the instant case, it is clearly proved by the attesting
witness that Rajammal was in sound and disposing mind and that she had
executed the WILL freely and voluntarily. In fact, she had provided the
information for preparing the WILL and she signed in front of the Sub
Registrar and it was attested by D.W.3. All these requirements of
execution of WILL as per Section 68 of the Indian Evidence Act has been
proved. Further, the WILL was registered on 10.08.1992. After that, the
testator lived for six years. Was she compelled to execute the document or
forced to sign under duress, she could have revealed the above said fact to
the plaintiffs while she was living in Tirunelveli along with her husband.
The further suspicion that it was not attested by her husband is not
material one. As long as the attesting witness clearly proves the execution
of the WILL, the genuine execution stands proved. Apart from this, the
plaintiffs have sent the WILL executed by their father to Forensic
examination for comparing the thumb impression as well as signature.
21.Admittedly, the plaintiff had redeemed the mortgage
executed by her mother Rajammal from one Ramasamy. If that be so, she
had a genuine document to send it for comparison of the signatures. The
https://www.mhc.tn.gov.in/judis/
SA (MD) NO.322 OF 2004
plaintiffs have not taken the recourse to compare the signature found in
Ex.B10 with the admitted signature found in the mortgage deed. There is
no explanation as to why the same was not done and there is no serious
objection raised against the execution of the WILL by Rajammal.
Furthermore, the registration of the WILL as early as in the year 1992,
would go to show that there are probabilities that the testator would have
executed the WILL. Even though a suspicion was raised that the sister-in-
law of the defendants was the Sub Registrar, no evidence was adduced in
that direction. Therefore, on the basis of the evidence of the D.W.3, it is
clearly proved that Ex.B10 was executed by Rajammal voluntarily out of
her freewill. Therefore, the Lower Appellate Court has rightly set aside the
finding of the Trial Court. The Trial Court proceeded on the basis that the
second defendant has come before the Court with unclean hands and
suppressed the execution of the power of attorney by him. The Court shall
not approach the issue with a prejudiced view. The suppression of facts, of
course, will lead the Court to draw adverse inference against a litigant,
who suppresses the facts, and disentitles him for grant of discretionary
relief. But, in the matters of WILL, as long as execution is proved and the
mandatory requirements of the statute with regard to execution of the
WILL are satisfied, it shall not be influenced by the conduct of parties.
https://www.mhc.tn.gov.in/judis/
SA (MD) NO.322 OF 2004
22.In that view of the matter, as observed above, Ex.B10 is a
genuine document. The finding of the Lower Appellate Court on this
aspect also does not require any interference.
23.In fine, the question of law raised in the above Second
Appeal and the Cross Objection is answered against the appellant. The
judgment and decree made in A.S.No.154 of 2003 dated 19.03.2004 by the
learned I Additional District Judge, Tirunelveli, is confirmed.
24.In the result, both the Second Appeal as well as the cross
appeal are dismissed. No costs. Consequently, connected civil
miscellaneous petition is closed.
20 / 07 / 2021
Index : Yes/No
Internet : Yes/No
TK
To
1.The I Additional District Judge
Tirunelveli.
2.The II Additional Sub Judge
https://www.mhc.tn.gov.in/judis/
SA (MD) NO.322 OF 2004
Tirunelveli.
https://www.mhc.tn.gov.in/judis/
SA (MD) NO.322 OF 2004
https://www.mhc.tn.gov.in/judis/
SA (MD) NO.322 OF 2004
M.GOVINDARAJ, J.
TK
SA (MD) NO.322 OF 2004
20 / 07 / 2021
https://www.mhc.tn.gov.in/judis/
