M. Vairamudi vs R. Sundararajan
2022 Latest Caselaw 8556 Mad

                                                                             S.A.No.1199 of 2011



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED :   25.04.2022

                                                        CORAM

                                  THE HONOURABLE MRS. JUSTICE R.HEMALATHA
                                                 S.A.No.1199 of 2011
                                                         and
                                     M.P. No.1 of 2011 & C.M.P. No.18063 of 2021

                     1. M. Vairamudi
                     2. M. Natarajan
                     3. M. Rameshbabu                                          ... Appellants

                                                           Vs.
                     1. R. Sundararajan
                     2. R. Saravanan
                     3. R.Sentamizhselvan                                    ... Respondents


                     Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
                     decree and judgment dated 20.06.2011 passed in A.S. No.46 of 2010, on
                     the file of the Principal Subordinate Judge, Thiruvannamalai, upholding
                     the decree and judgment dated 02.08.2010 passed in O.S. No.520 of
                     2004, on the file of the Principal District Munsif, Thiruvannamalai.


                                   For Appellants      : Mr.R. Rajarajan
                                   For Respondents    : Ms. G. Sumitra




                     Page 1 of 25

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                                                                                  S.A.No.1199 of 2011




                                                     JUDGMENT

The defendants in O.S.No.520 of 2004 on the file of the

Principal District Munsif Court, Thiruvannamalai, who failed in both the

Courts below have filed the present second appeal. The suit was filed by

the respondents/plaintiffs for a declaration of their title to the suit

property and for a consequential relief of permanent injunction

restraining the defendants from interfering with their peaceful possession

and enjoyment of the suit property.

2. The suit property as described in the plaint is a land and

superstructure in T.S.No.190/8 and T.S.No.190/13 of Thiruvannamalai

town with specific measurements and boundaries as stated in the plaint

schedule.

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

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

the present appeal would also be indicated.

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4.The case of the plaintiffs in nutshell is as follows :

The suit property is the self acquired property of Jayalakshmi

Ammal who is the plaintiffs' father's paternal aunt. Jayalakshmi Ammal,

though married, was living separately for the past 40 years. She had

properties at Gudiyatam also. The plaintiffs' father Ramalingam was

taking care of his paternal aunt Jayalakshmi Ammal after the death of her

father and she nominated him as her legal heir in all her bank accounts.

The defendants who are the sons of Jayalakshmi's brother Mugaleewaran

did not bother to visit Jayalakshmi Ammal and take care of her. Inspite of

that Jayalakshmi Ammal had executed a Will bequeathing her two

houses at Gudiyattam in favour of the defendants. The plaintiffs' father

was treated by Jayalakshmi Ammal as her adopted son. While so,

Jayalakshmi Ammal executed a Will dated 23.05.2003 (Ex.A1)

bequeathing the suit property in favour of the plaintiffs' father

Ramalingam. During the last week of May 2003, Jayalakshmi Ammal

went to Gudiyattam and died on 31.05.2003 under mysterious

circumstances. Jayalakshmi Ammal before leaving for Gudiyattam

informed the plaintiffs that the defendants took her to the Sub Registrar

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Office at Thiruvannamalai on 21.05.2003 and obtained her marks and

signatures on blank papers stating that it is a consent letter for obtaining

loan over some of the properties other than the suit properties which

were given by her to the defendants' father. Jayalakshmi Ammal became

suspicious subsequently and wanted to verify the same and left for

Gudiyattam on the evening of 23.05.2003. Before leaving, she handed

over the Will dated 23.05.2003 to the mother of the plaintiffs and asked

her to keep it safe. In fact, the plaintiffs' father was not aware of the

execution of the Will dated 23.05.2003 by Jayalakshmi Ammal in his

favour. On hearing the news of the death of Jayalakshmi Ammal on

31.05.2003, the plaintiffs went to Gudiyattam along with their parents

and the plaintiffs' father performed all the ceremonies as her adopted son.

On the next day they came to know about the registered Will dated

21.05.2003 allegedly executed by Jayalakshmi Ammal bequeathing the

suit property in favour of the defendants. It seems Jayalakshmi Ammal

had informed about the Will dated 23.05.2003 (Ex.A1) in favour of her

brother Ramalingam to the defendants. The defendants on knowing this

manhandled her, as a result of which, she fell down and sustained a

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fracture on 24.05.2003. Thereafter, she became unconscious and

ultimately died on 31.05.2003. Though the plaintiffs and their father

wanted to inform the police on 01.06.2003, they did not do so as it was

too late for them to inform the police. The Will (Ex.A1) was the last Will

of late Jayalakshmi Ammal and was executed when she was in sound

state of mind and health. Based on the said Will the plaintiffs' father

executed a settlement deed (Ex.A2) dated 13.06.2003 in favour of the

plaintiffs and the possession of the suit property was also handed over to

the plaintiffs. The tenancy was also attorned and all the tenants are

paying rents to the plaintiffs. The defendants issued a notice dated

27.06.2003 (Ex.A3) to the plaintiffs with false allegations for which the

plaintiffs gave a suitable reply dated 17.07.2003 (Ex.A4). On receiving

the reply notice, the defendants attempted to trespass into the suit

property with some goondas on 01.08.2003. Hence, the suit.

5. The suit was resisted by the defendants on the following

grounds:

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1) It is false to allege that the plaintiffs' father assisted Jayalakshmi

Ammal in all respects.

2) In fact Jayalakshmi Ammal was very much fond of her younger

brother Mugaleewaran, father of the defendants.

3) When Jayalakshmi Ammal wanted to raise a loan in 1991 from

Thiruvannamalai Co-operative Urban Bank, she required the

assistance of Ramalingam for introducing her to the bank officials

and also stand as a surety for the loan. Thus the name of

Ramalingam appeared in all the mortgage papers (Ex.A5 to

Ex.A8).

4) On 20.05.2003, Jayalakshmi Ammal slipped and fell down and

sustained a fracture on her right wrist and hip. The tenants in the

house informed the same to the defendants over phone and the

third defendant rushed to Thiruvannamalai to take Jayalakshmi

Ammal for medical treatment.

5) On the next day i.e. on 21.05.2003, she executed a Will (Ex.B2)

bequeathing the suit property in favour of the defendants and went

to Sub Registrar Office, Thiruvannamalai in an autorikshaw and

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got the Will registered. In fact the Will (Ex.B2) was written by a

scribe and the contents thereon were read over to her. She had

affixed her thumb impression on each page of the Will in the

presence of attestors.

6) Ex.B2 was executed by Jayalakshmi Ammal out of her own

volition and while in sound state of mind and health.

7) On 22.05.2003, the third defendant took Jayalakshmi Ammal to

Gudiyattam and gave her treatment. She was also taken to

Nagriputhur for treatment.

8) On 31.05.2003, Jayalakshmi Ammal died (death extract Ex.B3)

and her funeral was arranged by the defendants.

9) Jayalakshmi Ammal had no intention to bequeath the suit property

in favour of the plaintiffs' father and she was not also in a position

to sign on 23.05.2003. The plaintiffs and their father had forged

the signature of Jayalakshmi Ammal on Ex.A1 Will with the aid of

mortgage loan papers which contained the signatures of

Jayalakshmi Ammal.

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10)The allegation of the plaintiffs that the Will Ex.B2 was obtained

under coercion and threat is totally false.

11)The plaintiffs therefore should pay exemplary costs to the

defendants for filing a vexatious suit.

6. On the basis of the above pleadings the trial Court framed

the following issues :

1) Whether it is true that Jayalakshmi Ammal purchased the suit

property through a registered sale deed and whether it is true that

she treated Ramalingam as her adopted son?

2) Whether the plaintiffs are entitled for a declaration as prayed for?

3) Whether the plaintiffs are entitled for a permanent injunction as

prayed for?

4) To what other reliefs the plaintiffs are entitled?

7. In the trial Court, the second plaintiff examined himself and

five other witnesses and marked Ex.A1 to Ex.A8. The second defendant

examined himself and marked Ex.B1 to Ex.B6. The letter sent by the

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Forensic lab, Mylapore, Chennai to the trial court stating that in the

absence of contemporary documents, the signature of Jayalakshmi

Ammal on Ex.A1 cannot be compared, was marked as Ex.C1.

8. After full contest, the learned Principal District Munsif,

Thiruvannamalai, decreed the suit in favour of the plaintiffs vide his

decree and judgment dated 02.08.2010. The appeal in A.S.No.46/2010

was also dismissed. Now the present second appeal is filed by the

defendants.

9. At the time of admission the following substantial questions

of law were framed.

1) Have not the Courts below grossly erred in law by holding that

Ex.A1 Will dated 23.05.2003 has been proved by the plaintiffs

without giving any finding about the suspicious circumstances

surrounding the execution of Ex.A1?

2) Whether the Courts below are correct in placing the burden of

proof on the shoulders of the defendants to prove execution of

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Ex.B2 when the plaintiffs have come forward with the suit for

declaration and injunction on the basis of Ex.A1 Will dated

23.05.2003?

3) Whether the Courts below are correct in disbelieving Ex.B2 dated

21.05.2003 when the defendants have proved the due and valid

execution of Will as contemplated under law and also by adducing

sufficient evidence to remove the suspicious circumstances

surrounding the execution of the Will?

10. Mr.R.Rajarajan, learned counsel for the appellants /

defendants contended that Jayalakshmi Ammal could not have signed

Ex.A1 Will on 23.05.2003 as she had a fracture on her right wrist and

hip. According to him, there are several suspicious circumstances

attendent on the execution of Ex.A1 Will. In fact, the second plaintiff

(P.W.1) during the course of cross examination admitted that

Jayalakshmi Ammal had knowledge about the execution of the Will

dated 21.05.2003 (Ex.B2) on 23.05.2003, when she allegedly executed

Ex.A1 Will. When Ex.B2 is registered Ex.A1 has not been registered.

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The earlier Will dated 21.05.2003 (Ex.B2) was not mentioned in the

subsequent Will dated 23.05.2003 (Ex.A1) and this crucial aspect has not

been taken into account by both the Courts below. The plaintiffs also did

not take any steps to prove the signature of Jayalakshmi Ammal on

Ex.A1 and there are several contradictions in the evidence of P.W.1 to

P.W.5. When the plaintiffs have not proved the Will Ex.A1, the Courts

below wrongly shifted the burden of proof on the defendants throwing to

winds the well settled principles of law that the plaintiffs should stand or

fall on his own legs. He also relied on the following decisions in

1) Ms. Josephine Jerome and others vs. S. Santiago and another

reported in (2007) 5 MLJ 706.

2) H. Venkatachala Iyengar vs. B.N. Thimmajamma & others

reported in 1959 AIR 443.

3) Robert Prabhakar vs. David Ebenezer reported in (2007) 1 MLJ

4) Rabindranath Mukherjee & another vs. Panchanan Banerjee

(dead) by LRs & ors reported in 1995 SCC (4) 459.

5) J. Naval Kishore vs. D. Swarna Bhadran and others reported in

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(2007) 5 MLJ 1417.

6) Balathandayutham and another vs. Ezhilarasan (Civil Appeal

No(s). 7357/2002)

and contended that

a) The initial burden is always on the propounder of the Will to prove

that testarix executed the testament. Under Section 63 of the Indian

Succession Act, attestation is considered to be a part of execution

and mere proof of attestation does not prove 'due execution'.

b) The evidence adduced on the side of the plaintiffs is not

convincing as there are suspicious circumstances surrounding the

Will (Ex.A1).

c) It is the duty of the propounder to remove all the clouds and satisfy

the conscience of the Court.

d) The Will Ex.B2 was registered and it is on record that Sub

Registrar had explained the contents of the Will to late

Jayalakshmi Ammal whereas there is no proper evidence on the

side of the plaintiffs that the contents of Ex.A1 were read over to

her.

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11. Per contra, Ms.G.Sumithra, learned counsel for the

respondents 1 to 3 contended that both the Courts below after analysing

the evidence on record had rendered a concurrent finding that Ex.A1 is

true and valid and that the defendants did not prove the validity of

Ex.B2. Her specific contention is that there is no substantial question of

law involved in the present second appeal since the findings recorded by

both the Courts below are based on oral and documentary evidence. The

findings of facts recorded by both the Courts below cannot be questioned

in the present second appeal especially when they are not perverse.

12. It is admitted fact that the suit property absolutely belonged

to late Jayalakshmi Ammal and she was living separately as her husband

deserted her long back. Jayalakshmi Ammal had three brothers namely

Venugopal, Subramani and Mugaleewaran. Ramalingam, father of the

plaintiffs is the son of Venugopal. The defendants 1 to 3 are the sons of

Mugaleewaran. When the plaintiffs contend that their father was treated

as an adopted son by late Jayalakshmi Ammal and that she bequeathed

the suit property in his favour through an unregistered Will dated

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23.05.2003 (Ex.A1), the defendants claim that late Jayalakshmi Ammal

executed a registered Will on 21.05.2003 (Ex.B2) in respect of the suit

property in favour of the defendants 1 to 3. According to the defendants

1 to 3 / appellants, Jayalakshmi Ammal was very much fond of their

father Mugaleewaran as he was her youngest brother.

13. The Courts below analysed the evidence on record and

concurrently held that the plaintiffs have proved the Will Ex.A1 and the

defendants failed to prove Ex.B2.

14. In order to establish the due execution of Ex.A1, the

plaintiffs have examined the scribe (P.W.5) and the attestors (P.W.2 &

P.W.3) of Ex.A1. The contention of the learned counsel for the

appellants is that since P.W.5's (scribe) license was cancelled, his

evidence cannot be relied upon. The very same arguments were put forth

before the first appellate Court by pressing into service Ex.B7 to Ex.B9

as additional documents. However, it was held that P.W.5's license was

cancelled because he swindled public money when he was in

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Government service and FIR was registered against him and not because

he was in the habit of preparing bogus documents. It was further held

that his evidence was corroborated with the evidence of other witnesses

to Ex.A1.

15. Both the courts below also analysed the veracity of Ex.B2

Will and recorded the following factual findings.

1) It was contended by the defendants that Jayalakshmi Ammal

herself read the entire contents of the documents (which goes upto

six pages). This is not believable since a woman of the age of 85

years who had sustained a wrist and hip fracture on the previous

day could not do that and that too, sitting in an autorickshaw.

2) The fact that she was taken to Sub Registrar's office on 21.05.2003

and not to the hospital create a suspicion in the minds of the court.

3) D.W.1 did not explicitly mention that D.W.2, one of the attestors

to Ex.B2 was present at the time of execution of Ex.B2.

4) Though in the written statement it is specifically mentioned that on

23.05.2003 Jayalakshmi Ammal was in Nagriputhur taking

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medical treatment, it is in evidence that Jayalakshmi Ammal was

taken to Nagriputhur only on 22.05.2003.

5) D.W.1 further stated that Jayalakshmi Ammal was given

homeopathy treatment at home but D.W.2 had deposed that she

was taken to Government hospital. No prescription was filed.

6) D.W.3 deposed that he saw Jayalakshmi Ammal inside the Sub

Registrar office while the other two witnesses stated that she was

sitting in an autorickshaw outside the office.

7) D.W.1's evidence is totally in contradiction to D.W.2's evidence.

8) D.W.1 admitted that the defendants do not know the place of

residence of Jayalakshmi Ammal at Thiruvannamalai.

9) Ex.A5 to Ex.A7 bank documents clearly show that the plaintiffs'

father was the nominee of late Jayalakshmi Ammal not only in Co-

operative Bank, Thiruvannamalai, but also in few of her other

transactions.

10) It is clear from the evidence that Jayalakshmi Ammal was residing

with the plaintiffs.

11) Execution of Ex.A1 was proved by the plaintiffs by adducing

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acceptable evidence and there are no suspicious circumstances

surrounding the Will Ex.A1.

12) The defendants did not discharge their burden to disprove the

validity of the Will Ex.A1.

13) Merely because Ex.B2 was registered, it cannot be held that

Ex.A1, the subsequent and last Will of the testatrix, is invalid.

14) Registration of a Will alone is not sufficient when the evidence of

the attestors and the other witnesses are not reliable.

15) The settlement deed was executed by Ramalingam in favour of his

sons only after the death of Jayalakshmi Ammal and the

defendants did not prove that it was made prior to the execution of

the Will as alleged by them.

Thus it is seen that both the courts below had analysed each and every

evidence threadbare and I do not see any perversity in their findings of

facts.

16. Both the courts below did not shift the entire burden on the

defendants as alleged by the counsel for the appellants. A bare perusal of

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judgments of both the courts below shows that the evidence adduced on

the side of the plaintiffs was also analysed threadbare before going into

the veracity of the witness statements on the side of the defendants.

17. The contention of the counsel for the appellants is that

when Jayalakshmi Ammal knew the execution of Ex.B2, she did not

cancel the same before executing Ex.A1. Execution of another Will

would amount to revocation of the earlier Will as per Section 70 of the

Succession Act.

18. The facts of the case in H. Venkatachala Iyengar vs.

B.N.Thimmajamma & others (cited supra) are that the propounder of the

Will took a prominent role in executing the Will and there was no

evidence to show that the draft was ever approved by the testatrix or that

the Will was fully read over to her and she knew its contents. In such

circumstances, it was held that the propounder of the Will has not proved

the Will in the manner known to law. But the facts of the present case

are entirely different. In the instant case, the plaintiffs have proved the

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execution of the Will Ex.A1 by adducing acceptable evidence and as

already observed, both the courts below had properly analysed the

evidence adduced on the side of the plaintiffs and had come to a

conclusion that the plaintiffs have proved that Ex.A1 was the last Will of

late Jayalakshmi Ammal.

19. The case in J. Naval Kishore vs. D. Swarna Bhadran and

others (cited supra) is that the atttestors to the Will who have been

examined as the witnesses failed to prove the execution of the Will and

therefore, it was held that the propounder has not proved the Will in

accordance with Section 68 of the Indian Evidence Act and Section 63 of

Indian Succession Act. Therefore, the above ruling may not apply to the

facts of the present case.

20. The facts in the decision in Balathandayutham and another

vs. Ezhilarasan (cited supra) are that the Will was executed when

admittedly the testator was not in sound state of health. Here it is not the

case of the plaintiffs and the defendants that the testatrix was not in

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sound state of mind and health at the time of execution of Ex.A1.

Though an attempt was made by the defendants to show that the testatrix

Jalayalshmi Ammal slipped and fell down on 20.05.2003 and sustained

fracture on her hip and right wrist and that therefore she could only affix

her thumb impression, the same has not been proved by them. This has

also been elaborately discussed by both the courts below in extenso and

the same need not be repeated here in the present second appeal

especially when they are the findings based on facts.

21. The contention of the learned counsel for the appellants is

that the first Will dated 21.05.2003 (Ex.B2) was registered and it is also

on record that the Sub Registrar had explained the contents to the

testatrix and there was no suspicious circumstances surrounding on the

Will Ex.B2. He relied on the decision in Rabindranath Mukherjee &

another vs. Panchanan Banerjee (dead) by LRs to substantiate his

contention in this regard. In that case, there were no suspicious

circumstances surrounding on the registered Will. This was not so in the

instant case as Ex.B2 has suspicious circumstances surrounding it. In the

present case, the defendants have not proved the execution of the Will

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Ex.B2 of late Jayalakshmi Ammal on 21.05.2003 and merely because the

said document is registered, it cannot be held that it is a true and valid

document. Moreover, the plaintiffs have adduced acceptable evidence to

show that the contents of Ex.A1 were read over to late Jayalakshmi

Ammal before she signed on Ex.A1. Therefore, the above ruling would

not apply to the facts of the present case.

22. The decision in Ms. Josephine Jerome and others vs. S.

Santiago and another cited supra, is that there was no evidence as to why

the elder son who was an equal beneficiary with the second son as per the

earlier registered Will has been altogether excluded in the subsequent

Will. In such circumstances it was held that the the initial burden of

proving the Will was not discharged by the propounder of the Will. This

ruling is also not useful to the case of the appellants.

23. The decision in Robert Prabhakar vs. David Ebenezer

would not also apply to the facts of the present case since it was found in

that case that the evidence of the witnesses is in conflict with each other.

The materials on record created a doubt about the genuineness of the

Will. In the police complaint given by the father of the propounder, there

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was no whisper about the Will executed by the testatrix in whose name

the property was purchased.

24. Section 100 CPC is a jurisdiction confined to substantial

questions of law only. In the decision in Madamanchi Ramappa and

Another Vs Muthalur Bojjappa reported in (1964) 2 SCR 673, the

Apex Court observed as follows:

"12.The admissibility of evidence is no doubt a point of law, but once it is shown that the evidence on which courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the courts of fact to contend before the High Court in second appeal that the said evidence is not sufficient to justify the findings of fact in question. It has been always recognised that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the court of facts and cannot be agitated in a second appeal. Sometimes, this position is expressed by saying that like all questions of fact, sufficiency or adequacy of evidence in support of a case is also left to the jury for its verdict. This position has always been accepted without dissent and it can be stated without any doubt that it enunciates what can be properly

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characterised as an elementary proposition. .......................

If in reaching its decisions in second appeals, the High Court contravenes the express provisions of section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid."

25. The defendants did not even know where Jayalakshmi

Ammal was residing in Thiruvannamalai and in such circumstances, it is

difficult to believe the versions of the defendants that the third

defendant, on receiving a telephonic message from the tenants of the

house of Jayalakshmi Ammal, rushed to Thiruvannamalai on 20.05.2003

and on the very next day got the Will executed and registered at

Thiruvannamalai Sub Registrar's office, taking the testatrix who had

suffered a hip fracture in an autorickshaw to the Sub Registrar's office.

All the observations made by both the courts below are based on sound

principles of law and after analysing the oral and documentary evidence

adduced on both sides. Therefore, I do not see any reason to interfere

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with the same. Thus, the substantial questions of law are answered

against the appellants.

                                  26. In the result,

                                  1) The second appeal is dismissed.            No costs.

Consequently connected miscellaneous petitions are

closed.

2) The decree and judgment dated 20.06.2011 passed in

A.S. No.46 of 2010, on the file of the Principal

Subordinate Judge, Thiruvannamalai, and the decree

and judgment dated 02.08.2010 passed in O.S. No.520

of 2004, on the file of the Principal District Munsif,

Thiruvannamalai, are upheld.

25.04.2022

Index: Yes/No Internet: Yes/No Speaking/Non-Speaking order bga

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R. HEMALATHA, J.

bga

To

1.The Principal Subordinate Judge, Thiruvannamalai.

2.The Principal District Munsif, Thiruvannamalai.

3. The Section Officer, VR Section, High Court, Madras.

S.A.No.1199 of 2011 and M.P. No.1 of 2011 & C.M.P. No.18063 of 2021

25.04.2022

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