Anbhazhgan vs Thangamani
2022 Latest Caselaw 1922 Mad

                                                                                      S.A.No.757 of 2016

                                     IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     Dated : 07.02.2022

                                                           Coram:

                                    THE HONOURABLE Mr.JUSTICE N.ANAND VEKATESH

                                                     S.A.No.757 of 2016

              1.Anbhazhgan
                S/o.Sundaram

              2.Selvakumar
                S/o.Sundaram                                                            ..Appellants

                                                           ..Vs..

              1.Thangamani
                W/o.(late)Chandramohan

              2.Vaijayanthi
               W/o.Rajamanikam
                                                                                      ..Respondents

              Prayer:             Second Appeal filed Under Section 100 of the Code of Civil Procedure
              against the Judgment and Decree passed by the learned Principal Subordinate
              Judge of Salem on 22.01.2016 in A.S.No.56 of 2015 reversing the judgment and
              decree passed by the I Additional District Munsif of Salem on 8/10/2014 in
              O.S.No.1154 of 2008.


                                   For Appellants     : Mr.S.Balasubramanian

                                   For Respondents    : Mr.T.M.Harharan
                                                        for R 1, R 2



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                                                                                          S.A.No.757 of 2016


                                                       JUDGMENT

The plaintiffs are the appellants. The plaintiffs filed a suit seeking for the relief

of declaration and permanent injunction based on a Will dated 19.06.1996. According

to the plaintiffs, the suit property was originally owned by one Sreenivasa Chettiar,

who is the father of the defendants. The said Sreenivasa Chettiar gave both his

daughters on marriage and he and his wife were taken care by the plaintiffs who are

none other than the sons of the younger brother of the said Sreenivasa Chettiar

Considering the help rendered by the plaintiffs, the said Sreenivasa Chettiar is said to

have executed a Will dated 19.06.1996 in favour of the plaintiffs and thereby had

bequeathed the suit property in their favour. According to the plaintiffs, the said

Sreenivasa Chettiar died on 15.04.1997 and thereafter the Will started operating in

favour of the plaintiffs. However, the defendants started claiming right over the

property and were not willing to act upon the Will that was executed in favour of the

plaintiffs. Left with no other alternative, the suit came to be filed by the plaintiffs

seeking for the relief of declaration and permanent injunction.

2.The defendants have denied the factum of the execution of Will dated

19.06.1996 by their father Sreenivasa Chettiar in favour of the plaintiffs. The

defendants have taken a categoric stand that the plaintiffs are attempting to knock of a

valuable property by means of a fabricated and forged Will and hence they have sought

for the dismissal of the suit.

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3.The Trial Court on appreciation of the facts and circumstances of the case and

oral and documentary evidence, decreed the suit as prayed for. Aggrieved by the

same, the defendants filed an appeal before the Lower Appellate Court and the appeal

was allowed by judgment and decree dated 22.01.2016. The plaintiffs aggrieved by the

judgment of the lower Appellate Court have preferred the present Second Appeal.

4.This Court heard the learned counsel appearing on either side and carefully

went through the findings rendered by the Lower Appellate Court.

5.The source of the right for the plaintiffs is the Will dated 19.06.1996 which is

said to have been executed in their favour by the father of the defendants viz.,

Sreenivasa Chettiar. The Indian Evidence Act, mandates the Will to be proved in

accordance with Section 68 of the Indian Evidence Act. Unless the Will is proved in line

with the requirements of Section 63 of the Indian Succession Act and Section 68 of the

Indian Evidence Act, the same cannot be taken into consideration. The provision

mandates the Will to be proved through attesting witness. In the present case, the

attesting witnesses are said to be the respective husbands of the defendants.

According the plaintiffs, the husband of the 1st defendant had expired and hence the

husband of the 2nd defendant was examined as PW-4. Unfortunately this witness made

a statement to the effect that the signature found in the Will as a attesting witness is

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not his signature. A further statement is made by PW-4 to the effect that he did not

see Sreenivasa Chettiar signing the Will in his presence.

6.It is also seen from evidence that the scribe of the Will was examined as PW-3.

He has stated that the Will was prepared on the request made by Sreenivasa Chettiar

and two attesting witnesses. However, this witness has stated that he did not see

Sreenivasa Chettiar signing the Will.

7.It is therefore clear from the evidence of PW-3 and PW-4 that there was no

witness who had spoken about Sreenivasa Chettiar subscribing his signature to the Will.

Even though PW-3 had stated that the Will was prepared on the request made by

Sreenivasa Chettiar, he cannot be taken to be an attesting witness as defined under

Section 3 of the Transfer of Property Act. The actual attesting witness namely PW-4

also did not support the case of the plaintiffs.

8.Even the evidence of PW-5 did not in any way satisfy the requirements for the

proof of Will. This witness has further stated that only after Sreenivasa Chettiar had

signed the Will, it was taken to the scribe and his signature was obtained.

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9.The Lower Appellate Court has also found that even though the Will is said to

have been executed in the year 1996, it was never acted upon by the plaintiffs and no

steps were taken even to change the revenue records.

10.In the considered view of this Court, the Lower Appellate Court had

appreciated the evidence available on record in the right perspective. This Court

exercising its jurisdiction under Section 100 of CPC., cannot reappreciate evidence.

This Court does not find any substantial question of law involved in the present Second

Appeal. Accordingly, this Second appeal is dismissed. Considering the facts and

circumstances of the case, there shall be no order as to costs.

07.02.2022

Internet: Yes/No Index: Yes/No KP

To

1.The District and Sessions Court, Salem.

2.The Additional District Munsif Court, Salem.

3.The Section Officer V.R.Section, High Court,Madras.

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N.ANAND VENKATESH,J.

KP

Judgment in S.A.No.757 of 2016

07.02.2022

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