Madras High Court
Arputhavalli vs Dhamotharasamy on 22 April, 2022
SA.No.340/2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
SA.No.340/2022 & CMP.No.7001/2022
Arputhavalli .. Appellant /
Plaintiff
Vs.
1.Dhamotharasamy
2.Rajan
3.Vallinayagam
4.Amsaveni .. Respondents
/ Defendants
Prayer:- Second Appeal preferred under 100 of CPC against the judgment
and decree dated 22.08.2019 made in AS.No.3/2018 on the file of the
learned IV Additional District & Sessions Judge, Coimbatore, confirming
the judgment and decree dated 17.06.2017 made in OS.No.43/2010 on the
file of the learned Subordinate Judge, Pollachi.
For Appellants : Mr. D.R.Arun Kumar
For RR1&2 : Mr.S.Makesh
https://www.mhc.tn.gov.in/judis 1
SA.No.340/2022
JUDGMENT
(1) The unsuccessful plaintiff in the suit in OS.No.43/2010 on the file
of the learned Subordinate Judge, Pollachi, is the appellant in the
above Second Appeal.
(2) The appellant has filed the suit in OS.No.43/2010 for partition of
her 1/5th share in all the suit properties and for consequential
injunction restraining the defendants from encumbering or
alienating the suit A and B Schedule properties to third parties.
The suit is also for a declaration to declare the Will dated
18.12.2009 allegedly created by the defendants is null and void.
(3) The case of the appellant/plaintiff is that the suit properties
belonged to one Errappan and that he purchased the suit ''A''
Schedule properties under the Sale Deed dated 11.11.1981 and the
''B'' Schedule properties under an earlier Sale Deed dated
10.02.1971. It is stated further that her father Errappan expired on
10.01.2010 leaving behind the plaintiff and defendants as his legal
heirs. Stating that the appellant is also entitled to equal share along
with other sharers, the plaintiff admitted that the defendants
SA.No.340/2022
claimed right on the basis of a Will alleged to have been executed
by their father. Therefore, she prayed for declaration that the Will
dated 18.12.2009 pleaded by the defendants is null and void on the
ground that the Will is forged and concocted by defendants.
(4) The suit was contested by defendants 1 and 2 by filing a written
statement disputing the plaintiff 's claim only on the ground that
the father had executed a Will on 18.12.2009 when he was in a
sound, disposing state of mind. It is to be noted that the defendants
have given information about the existence of other properties as
well, the details about the source for other properties. It is
specifically stated that by Will, the testator had given properties to
all the heirs. Since the suit properties are self acquired properties
and the testator, namely, the father. It is further stated that the
plaintiff is bound by the Will executed by the father.
(5) Having regard to the pleadings of the respective parties, the Trial
Court framed an issue with reference to the execution and proof of
the Will stated to have been executed by the father. The Trial Court
sent the document and got the Expert opinion as to whether the
SA.No.340/2022
thumb impression found in the document, namely, the Will, is that
of the father. Based on the opinion given by the Expert and other
evidence, the Trial Court held that the Will executed by the father
is proved and it is valid and true. Since the Will is held to be
proved, the Trial Court dismissed the suit for partition. However
as per the Will, the defendants were directed to pay a sum of
Rs.2,00,000/- to each of female heirs namely plaintiff and
defendants 3 and 4 with interest at 9% from 10.01.2013. Aggrieved
by the judgment and decree of the Trial Court, the appellant
preferred an appeal in AS.No.3/2018 on the file of the learned IV
Additional District and Sessions Judge, Coimbatore, and after
considering the evidence independently, the Lower Appellate
Court also came to the conclusion that the suit properties are the
self acquired properties of the father and that the Will executed by
the father is proved in accordance with law. The appeal was
dismissed. Aggrieved by the concurrent judgments and decrees of
the Courts below, the present Second Appeal is preferred by the
appellant/plaintiff.
SA.No.340/2022
(6) The appellant has raised the following substantial questions of
law:-
1. Whether the Courts below were correct in
disbelieving the oral and documentary
evidences adduced by the appellant to
substantiate the claim?
2. Whether the Courts below were correct in
believing the oral evidences adduced by the
defendants for proving the alleged Will under
the circumstances was inherently improbable?
3. Whether the Courts below were correct in
believing the alleged unregistered Will and
extending the relief to the defendants even
without any counter claim made in the written
statement seeking declaration of the Will in the
manner known to law?
(7) It is to be noted that none of the questions of law has substance
having regard to the specific findings of the Courts below with
regard to the genuineness of the Will. Even the questions of law
framed in the Memorandum of Grounds are not proper. It is true
that the plaintiff/appellant is also one of the heirs of the testator,
namely, Errappan. Errappan has bequeathed of his entire
SA.No.340/2022
properties under the Will. Both the Courts concurrently held that
the Will which was marked as Ex.B1 dated 19.12.2009 is a true
Will executed by the testator out of his free will and volition. The
Will is proved by examining the attestor to the document.
(8) It is also to be noted that the defendants by process known to law,
got the Will examined by an Expert who came to the conclusion
that the thumb impression found in the Will is that of the father of
the plaintiff and the defendants by comparing the thumb
impression of testator in other documents. No specific question of
law is raised disputing the expert's opinion. No attempt is made by
appellant's counsel as to how the oral evidence in this case cannot
be believed or pointing out any suspicious circumstances. Except
the document of Sale Deed, the appellant/plaintiff has not produced
any sufficient records or evidence to dispute the case of the
respondents/defendants. Since the character of the properties are
not in dispute, this Court is unable to find any reason to interfere
with the findings of the Courts below.
SA.No.340/2022
(9) In the result, this Court is of the view that the Second Appeal is
devoid of merits and it is liable to be dismissed. Accordingly, the
same is dismissed. Consequently, the connected miscellaneous
petition is closed.
22.04.2022
AP
Internet : Yes
To
1.The Subordinate Judge,
Pollachi.
2.The IV Additional District & Sessions Judge
Coimbatore.
3.The Section Officer
VR Section, High Court. Chennai.
S.S.SUNDAR, J.,
SA.No.340/2022
AP
SA.No.340/2022
22.04.2022
https://www.mhc.tn.gov.in/judis 8
