Madras High Court
Deivalakshmi vs S.Karupagavalli on 6 September, 2021
S.A.(MD)No.724 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A(MD)No.724 of 2012
and
M.P.(MD)No.1 of 2012
Deivalakshmi ... Appellant / 3rd Respondent / 3rd Defendant
-Vs-
1.S.Karupagavalli
2.S.Avudai Ammal ... Respondents 1 & 2 / Respondents 1 & 2/
Plaintiffs 1 & 2
3.A.Pon Karuppasamy ... 3rd Respondent / Appellant / 2nd Defendant
4.A.Karuppasamy ... 4th Respondent / 4th Respondent / 1st Defendant
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree made in A.S.No.4 of 2011 dated
31.01.2012 on the file of the Additional District Judge / Fast Track Court
No.II, Thoothukudi modifying the judgment and decree made in O.S.No.
192 of 2007 dated 05.01.2009 on the file of the Principal District Munsif
Court, Thoothukudi.
For Appellants : Mr.M.Thirunavukkarasu
For R1 & R2 : Mr.S.M.Mohan Gandhi
For R3 & R4 : Mr.R.Nanda Kumar
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S.A.(MD)No.724 of 2012
JUDGMENT
This second appeal arises out of a partition suit in O.S.No.192 of
2007 on the file of the Principal District Munsif Court, Thoothukudi. The
third defendant in the suit is the appellant herein.
2. The genealogy is as follows:-
Periyasamy Thevar
Kandasamy Thevar (Son) Angusamy Thevar- Velammal (daughter)
Karuppasamy Pon Karuppasamy Deivalakshmi Sankareshwari
(1st Defendant) (2nd Defendant) (3rd Defendant)
Karpagavalli Minor Aavudaiyammal
(1st Plaintiff ) (2nd Plaintiff )
3. The respondents 1 and 2 filed the said suit claiming partition and
separate possession of 1/4th share in the suit properties. The suit properties
are 12 in number. The appellant was shown as the 3 rd defendant. The
plaintiff's mother Sankareshwari already passed away. The defendants 1
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S.A.(MD)No.724 of 2012
and 2 are the brothers of the plaintiff's mother Sankareshwari. According to
the plaintiffs, the suit items 1 to 10 were allotted to the share of their
grandmother Velammal in a partition suit and that items 11 and 12 belong to
the grandfather Angusamy Thevar. The case of the plaintiffs is that they
have inherited their mother's 1/4th share in all the suit items. The defendants
1 and 2 contested the suit contending that their grandmother Velammal had
executed Ex.B2 in their favour. The first plaintiff Karpagavalli examined
herself as P.W.1 and marked Ex.A1 to Ex.A5. The first defendant
Karuppasamy examined himself as D.W.1. The appellant examined herself
as D.W.3. one Premavathi was described as attesor/scribe of Ex.B2-Will
dated 02.03.2001 said to have been executed by Velammal and she was
examined as D.W.2. On the side of the defendants, Ex.B1 dated 29.09.2003
order in E.P.No.91 of 2003 was also marked. After considering the
evidence on either side, the trial Court by judgment and decree dated
05.01.2009 granted preliminary decree allotting 1/4th share in favour of the
plaintiffs as well as the appellant in all the suit items. Aggrieved by the
decision of the trial Court, the second defendant Pon Karuppasamy filed
A.S.No.4 of 2011 before the Additional District Judge/Fast Track Court
No.II, Thoothukudi. By the impugned judgment and decree dated
31.01.2012, the appeal was partly allowed and the judgment and decree of
the trial Court was modified. The plaintiffs were granted 1/12th share in the
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S.A.(MD)No.724 of 2012
items 11 and 12. The suit was dismissed as regards items 1 to 10.
Challenging the same, this second appeal came to be filed.
4. The second appeal was admitted on the following substantial
questions of law:-
(a) Whether the defendants 1 and 2 have proved the execution
and attesting of Ex.B2-Will as required under Section 68 of the Evidence Act
and Section 63 of the Indian Succession Act?
(b) Whether the burden of proof lies upon the defendants 1 and 2
the person produced the Will or the plaintiffs and whether the lower appellate
Court is right in shifting the burden upon the plaintiffs to prove the execution
of Will ?
5. Heard the learned counsel on either side.
6. There is no dispute that suit items 1 to 10 belonged to Velammal
and items 11 and 12 belonged to Angusamy Thevar. The scope of the
contest in the second appeal is only regarding the items 1 to 10. The sons
of Velammal namely Karuppasamy and Pon karuppasamy contended that
Velammal by executing Ex.B2 had bequeathed the said items in their favour
and that therefore, they are not amenable to partition. The question
therefore turns on the genuineness of Ex.B2-Will. It is well settled that the
propounder of the Will has to prove the same. Ex.B2-Will is an
un-registered document. Of-course, during the relevant time, the
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S.A.(MD)No.724 of 2012
testamentary instrument did not require registration. On that score, Ex.B2-
Will cannot be disregarded. Section 68 of the Indian Evidence Act
contemplates that Will has to be proved through one of the attestors.
Premavathi is said to be one of the attestors. She was examined as D.W.2.
Premavathi is none other than Pon Karuppasamy's wife's niece. The Will is
said to have been executed on 02.03.2001. It is not in dispute that there
was a partition suit between Velammal and her brother Kandasamy Thevar
and that the suit items 1 to 10 were allotted to Velammal in O.S.No.119 of
1993. The final decree was passed and to take delivery of these two items,
E.P.No.91 of 2003 came to be filed. I checked the records, if this Will was
marked in E.P.No.91 of 2003. There cannot be any dispute that the Will has
surfaced only in the present proceedings and it was not marked in E.P.No.91
of 2003. When the Will has not surfaced at the appropriate time, that is
certainly a suspicious circumstance. If the Will had been duly registered,
that would have to a substantial extent allayed doubts that arise in the mind
of the Court. The propounders of the Will have projected the same only in
the present proceedings and not in E.P.No.91 of 2003.
7. There are also material contradictions between the testimonies of
D.W.1-Karuppasamy and D.W.2 Premavathi. D.W.1-Karuppasamy claimed
that the appellant herein namely Deiva Lakshmi was present, when
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S.A.(MD)No.724 of 2012
Velammal executed the suit Will. However, Premavathi-D.W.2 would
strongly assert that Deiva Lakshmi was nowhere in the scene. D.W.1
claimed that the document writer wrote the Will. But D.W.2-Premavathi
claimed that it was she who wrote the Will. D.W.2 also stated that the
testatrix affixed her thumb impression after D.W.2 put her signature. Since
the beneficiary under the Will are the defendants 1 and 2, to instil
confidence in the mind of the Court, the other witness could have been
examined. No explanation is forthcoming for non-examination of Ruban /
other person said to be the second attestor.
8. Taking note of all these aspects, I have to necessarily give a finding
that Ex.B2-Will cannot be accepted. Once Ex.B2 is eschewed out of
consideration, each of the units will be entitled to 1/4th share in all the suit
items. The substantial questions of law are accordingly answered.
The judgment and decree passed by the first appellate court is set aside.
The judgment and decree passed by the trial Court is restored in toto.
9. The second appeal is allowed. No costs. Consequently,
connected miscellaneous petition is closed.
06.09.2021
Internet : Yes/No
Index : Yes/No
rmi
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.724 of 2012
To
1.The Additional District Judge / Fast Track Court No.II, Thoothukudi.
2.The Principal District Munsif Court, Thoothukudi.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
G.R.SWAMINATHAN.J.,
rmi
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.724 of 2012
Judgment made in
S.A(MD)No.724 of 2012
and
M.P.(MD)No.1 of 2012
06.09.2021
https://www.mhc.tn.gov.in/judis/
