Madras High Court
Rathnavel … vs Thamilarasi on 16 June, 2021
S.A. No.1307 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.06.2021
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
S.A. No.1307 of 2007
Rathnavel … Appellant
Versus
1.Thamilarasi
2. Uma
3. Aiyammal
4. Mahalakshmi
5. Saroja
6. Tamilarasi .... Respondents
Prayer : Second Appeal filed under Section 100 of the Civil Procedure
code, against the judgment and the decree dated 23.02.2007 made in A.S.
No.145 of 2006 on the file of the Principal Subordinate Judge, Salem
confirming the Judgment and decree in O.S. No.958 of 2004, dated
08.03.2006 on the file of II Additional District Munsif, Salem.
For Appellant : Mr.M.Devaraj
For Respondents : Mr.S. Karthikeyan for R1 & R2
- No appearance
R3 & R4 – Died – Time expired
R5 & R6 – Served – No appearance
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S.A. No.1307 of 2007
JUDGMENT
(Heard through Video Conference)
Heard Mr.M.Devaraj, learned counsel for the appellant and also
perused and examined the materials and evidence available on record.
2. This Second Appeal has been filed challenging the concurrent
findings of the Courts below.
3. The Appellant is the first defendant in the suit O.S. No.958 of
2004 on the file of the II Additional District Munsif, Salem. The
respondents 1 and 2 are the plaintiffs in the said suit. The remaining
respondents are the tenants in the suit property. The appellant / first
defendant and the first and second respondents in the Second Appeal are
siblings born to Irusayee and Dasappan. The suit was filed for partition
by the respondents 1 and 2 against the appellant seeking their share of
the property in the suit schedule property. The appellant / first defendant
contested the suit by filing the written statement stating that even prior to
the filing of the suit, a registered Will dated 06.06.1991 was executed in
his favour by his mother Irusayee and by virtue of the same he is the
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S.A. No.1307 of 2007
absolute owner of the suit schedule property. The respondents 1 and 2
disputed the same before the Trial Court.
4. Before the Trial Court, the respondents 1 and 2/ plaintiffs filed 8
documents, which were marked as Exs.A1 to A8 and on the side of the
appellant / 1st defendant, 15 documents were filed, which were marked as
Exs.B1 to B15. On the side of the respondents 1 and 2 / plaintiffs, two
witnesses were examined viz., the first respondent / plaintiff as PW1 and
the second respondent / plaintiff as PW2. On the side of the appellant /
first defendant, three witnesses were examined, viz., DW1, the appellant
herein, S.Nachiappan as DW2 and Jagannathan as DW3.
5. Before the Trial Court only one of the attesting witness viz.,
S.Nachiappan to the Will, dated 06.06.1991, Ex.B15 was examined as a
witness by the appellant / first defendant, though there were two attesting
witnesses in the alleged Will, Ex.B15. The Attesting witness in his
deposition before the Trial Court has categorically during his cross
examination has deposed that he is not aware as to whose favour the
alleged Will, dated 06.06.1991 (Ex.B15) was executed.
6. The Trial Court after giving due consideration to the materials
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S.A. No.1307 of 2007
and evidence available on record has rejected the contention of the
appellant / first defendant and decreed the suit in favour of the
respondents 1 and 2 and passed a preliminary decree in favour of the
respondents 1 and 2 by which, they were entitled to 2/3rd share in the
suit schedule property and the remaining 1/3rd share was allotted to the
appellant / first defendant. Aggrieved by the same, the appellant / first
defendant preferred an appeal before the Principal Subordinate Court,
Salem in A.S. No.145 of 2006.
7. The Lower Appellate Court also confirmed the decree passed by
the Trial Court in OS. No.958 of 2004 after giving a finding based on
the materials and evidence available on record that there is no merit in
the appeal. Aggrieved by the same, the appellant / first defendant has
preferred this Second Appeal.
8.The appellant / first defendant has raised the following
substantial questions of law in the Second Appeal :
a) Whether the Courts below are right in coming to the
conclusion that Ex.D15 was executed in suspicious
circumstances even after the fact that the DW2 has deposed
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S.A. No.1307 of 2007
that he had attested the Will after the same being executed
and further was present even during the time of the
registration of the Will. When the Will clearly says that the
bequeath is made in the sound disposing state of mind that
too 9 years prior to the date of the death of the Testator.
b. Whether the findings of the Courts below regarding
Ex.B15 is correct in view of the fact that the Testator had the
capacity to make the Will and when the same has been
registered, the execution is also proved.
c. Whether the courts below are correct in disbelieving
Ex.B15, which was shown to have been properly executed
and attested as per Section 63 of the Succession Act. Further
the same was also registered which proves the fact of the
execution of the will.
d. Whether the lower appellate court misread and
misapplied the evidence available on record.
9. The Trial Court as well as the Lower Appellate Court based on
the materials and evidence available on record has come to the
conclusion that Ex.B15, the disputed Will dated 06.06.1991 was
executed in suspicious circumstances and rejected it outright.
Admittedly in the cross examination of DW2, the attesting witness to the
Will dated 06.06.1991, he has deposed that he is not aware as to whose
favour, the said Will, Ex.B15 was executed. The appellant / first
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S.A. No.1307 of 2007
defendant has admittedly examined only one attesting witness. He has
not examined the remaining attesting witness nor has he examined the
scribe to the Will to prove his case that the Will was executed in his
favour by his mother. The appellant / first defendant and the respondents
1 and 2 are siblings. The Trial Court has also observed while decreeing
the suit in favour of the respondents 1 and 2 that initially, the appellant /
first defendant had disputed that the respondents 1 and 2 were the
children of Irusayee and thereafter had backtracked by conceding that
they are infact her children.
10. Section 63 of the Indian Succession Act, 1925 reads as follows:
63. Execution of unprivileged Wills – Every testator, not being a soldier
employed in an expedition or engaged in actual warfar [or an airman so employed or
engaged,] or a mariner at sea, shall execute his Will according to the following rules
:-
a) the testator shall sign or shall affix his mark to the Will, or it shall
be signed by some other person in his presence and by his direction.
b) The signature or mark of the testator, or the signature of the
person signing for him, shall be so placed that it shall appear that it was
intended thereby to give effect to the writing as a Will.
c) The Will shall be attested by two or more witnesses, each of whom
has seen the testator sign or affix his mark to the Will or has been some
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S.A. No.1307 of 2007
other person sign the Will, in the presence and by the direction of the
testator, or has received from the testator a personal acknowledgment of his
signature or mark, or of the signature of such other person, and each of the
witnesses shall sign the Will in the presence of the testator, but it shall not be
necessary that more than one witness be present at the same time, and no
particular form of attestation shall be necessary.
11. As seen from the aforesaid Section, the attesting witness
himself must have seen the Testator signing the Will and only in his /her
presence, he will have to attest the Will. The Will shall also be attested
by two witnesses.
12. This Court has also perused and examined the cross
examination of the attesting witness (DW2), wherein, he has admitted
that he does not know in whose favour the Will dated 06.06.199,1,
Ex.B15 was executed. While that be so, it is for the appellant / first
defendant to prove his case that there is a registered Will executed in his
favour. The burden of proof has been shifted to the appellant / first
defendant once the respondents 1 and 2 / plaintiffs have disputed the
existence of any Will and the attesting witness, during his cross
examination has deposed that he does not known in whose favour the
Will was executed. The appellant / first defendant has miserably failed to
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S.A. No.1307 of 2007
establish before the Courts below by letting in proper evidence to show
that a Will dated 06.06.1991, Ex.B15 was indeed executed in his favour
by his mother Irusayee.
13.This Court has also perused and examined the evidence
available on record and does not find any infirmity in the findings of the
Tribunal. This Court while exercising powers under Section 100 of Civil
Procedure Code cannot reverse the findings of the Courts below, which is
based on materials and evidence available on record as the findings
cannot be faulted with. There is absolutely no substantial question of
law involved and further there are also no debatable issues, which on the
face of it, calls for interference. Hence, there is no merit in the Second
Appeal. Accordingly, this Second Appeal is dismissed. No costs.
16.06.2021
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-Speaking Order
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S.A. No.1307 of 2007
To
1. The Principal Subordinate Judge, Salem.
2. The II Additional District Munsif, Salem.
ABDUL QUDDHOSE, J.
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