Madras High Court

A.N.S. Shanmugam vs Kuttiammal on 4 October, 2021

                                                                        S.A.No.1406 of 2007



                               IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 04.10.2021

                                                       CORAM

                               THE HONOURABLE MRS. JUSTICE R.HEMALATHA
                                                  S.A.No.1406 of 2007


                      1. A.N.S. Shanmugam
                      2. Raja @ Balasubramaniam
                      3. R. Venkatarama Gounder
                      4. Munusamy
                      5. Lucas
                      6. Kongu Vellalar Educational Trust
                          rep. by its President
                          A.C. Thangavel
                          Pallipalayam Village
                          Perundurai Taluk                                ...Appellants
                                                          Vs.
                      1. Kuttiammal
                      2. Kamatchi
                      3. Komalavalli
                      4. Marasamy
                      5. Annapoorani
                      6. Sundari
                      7. Guruvayee
                      8. Arumugham
                      9. Madheswari
                      10. Mangammal

                      Page 1 of 10

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                                                                                S.A.No.1406 of 2007



                      11. Guruvayee
                      12. Uthirasamy
                      13. Venkatachalam
                      14. Perumal
                      15. Madheswari
                      16. Devi
                      17. Veeramani                                             ...Respondents


                      Prayer : Second Appeal filed under Section 100 of CPC, 1908 against the
                      decree and judgment dated 14.11.2006 passed in A.S. No.8 of 2006, on
                      the file of the Additional District Judge (Fast Track IV), Bhavani, Erode,
                      upholding the decree and judgment dated 01.02.2005 passed in O.S.
                      No.599 of 2004, on the file of the Principal District Munsif of Bhavani.


                                 For Appellants          : Mr. J. Prithvi
                                                            for Mr. Kaithamalai Kumaran


                                 R1 to R16               : Mr. T. Murugamanickam,
                                                           Senior Counsel.
                                                           Assisted by Mr. V. Rajesh


                                 R17                     : Given up.




                                                    JUDGMENT

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The appellants are the defendants in O.S.No.599 of 2004 on

the file of the Principal District Munsif Court, Bhavani, Erode District

and the appellants in A.S.No.8 of 2006 on the file of the Additional

District Court, Fast Track Court No.4, Bhavani, Erode District.

2. For the sake of convenience, the parties are referred to as

per their ranking in the trial court and at appropriate places, their ranking

in the present appeal would also be indicated.

3. The respondents herein filed a suit in O.S.No.599 of 2004

before the Principal District Munsif Court, Bhavani, Erode District,

praying for a declaration that they are the absolute owners of the suit

property as the legal heirs of the deceased Narayanan and for a

consequential relief of permanent injunction restraining the present

appellants from interfering with their peaceful possession and enjoyment

of the suit property.

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4.The case of the plaintiffs is that the suit property was

purchased by late Narayanan through a registered sale deed dated

02.06.1972 (Ex.A1) and that after the death of the said Narayanan on

26.04.2002, the plaintiffs who are the paternal cousins of the deceased

Narayanan are entitled to succeed to the suit property as Class - II legal

heirs since Narayanan died as a bachelor. The further case of the plaintiff

is that a portion of the suit property was let out to the seventh defendant

who subsequently vacated the same. Since the house in the suit property

was in a dilapidated condition, the same was demolished. However, the

respondents / defendants attempted to trespass into the suit property by

contending that they are the trustees in a trust formed by late Narayanan

in respect of the suit property. Therefore, they filed the suit for the reliefs

as stated above.

5.The suit was resisted by the respondents on the ground that

late Narayanan executed a Will dated 27.07.1987 (Ex.B7) through which

he created a trust for educating poor girl children and also nominated the

first defendant / first appellant to manage the trust. It is further contended

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that the appellants / defendants 2 to 5 were appointed as trustees who in

turn executed a sale deed in favour of the sixth appellant namely Kongu

Vellalar Educational Trust and that they are in possession and enjoyment

of the suit property.

6.The trial court after framing appropriate issues and after full

contest decreed the suit filed by the plaintiffs vide its decree and

judgment dated 01.02.2005 and also held that the Will dated 27.07.1987

(Ex.B7) has not been proved by the defendants as genuine.

7.Aggrieved over the same, the defendants filed an appeal in

A.S.No.8 of 2006 on the file of the Additional District Judge, Fast Track

Court No.IV, Bhavani, Erode District, and the learned Additional District

District Judge, Fast Track Court No.4, Bhavani, Erode District, dismissed

the appeal vide his decree and judgement dated 14.11.2006 and upheld

the findings recorded by the trial court.

8.Now the present second appeal is filed on the following

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substantial questions of law:

a) Are the Courts below justified in rejecting the Will Ex.B7 on the

ground of exclusion of the heirs of the testator, overlooking the

intention of the testator in creating a trust for the education of poor

girl students?

b) Are the Courts justified in throwing a suspicious circumstances in

the execution of the Will on the ground of exclusion of close

relatives overlooking that all the legal heirs are excluded cannot be

considered as a suspicious circumstances?

9. The suit property was purchased by late Narayanan through

a registered sale deed dated 02.06.1972 (Ex.A1). It is admitted that late

Narayanan died as a bachelor. The plaintiffs are the Class -II legal heirs

of late Narayanan and they have filed the suit for declaration that they are

entitled to succeed to the suit property after the death of their paternal

uncle Narayanan. However, the defendants pressed into service a Will

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dated 27.07.1987 (Ex.B7) and had contended that late Narayanan during

his life time executed a Will in respect of the suit property for educating

the poor girl children and also appointed appellants 1 to 5 as trustees and

the trustees in turn executed a settlement deed in favour of the sixth

appellant. Both the courts below had concurrently held that Ex.B7 is not

true and valid. A bare perusal of Ex.B7 Will shows that there are over

writings, alterations and interalienation. In fact the last page of the Will is

written in two different ink. The attestors of the Will were examined as

D.W.2 and D.W.3 in the trial court and they also admitted that there are

several over writings, alterations in the Will and had not been

authenticated by the testator. Ex.B7 also refers to 'New Subramaniam

Hotel' run by the first appellant herein and he is shown as one of the

trustees in the Will. The names of the trustees are written in the Will in

different ink. It is in evidence that 'New Subramaniam Hotel' came into

existence only during the year 1999. Therefore, there is a strong suspicion

as to the execution of the Will by late Narayanan. It is also contended by

the respondents / plaintiffs that Narayanan was in the habit of writing

diary as is evidenced by Ex.B8 to Ex.B11 and there is no mention in

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these diaries with regard to the purchase of stamp papers for executing

the Will Ex.B7. It is also contended by the plaintiffs that the diary

relating to the corresponding year during which Ex.B7 Will was executed

has not at all been produced by the appellants. The trial court and the

first appellate court had concurrently held that there are suspicious

circumstances attendant on the Will Ex.B7 and the attestors D.W.2 and

D.W.3 are also closely related to the first appellant. It is also seen that

though the appellants contended that as per the settlement deed executed

by the trustees in favour of the sixth appellant, consequent upon which

the sixth appellant took possession of the suit property, the sixth

appellant did not enter into witness box to speak about his possession

over the suit property. All the findings recorded by both the courts below

are based on well laid principles of law and in fact they have analysed the

entire evidence adduced on both sides and had come to the conclusion

that Ex.B7 Will is not true and valid. Therefore, the substantial questions

of law are answered against the appellants. In fact there is no substantial

question of law involved in the present case.