Madras High Court
C.Rukmani vs Marathal on 24 February, 2022
S.A.Nos.1045 of 2013 and 107 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.02.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
S.A.Nos.1045 of 2013 and 107 of 2014
and
M.P.Nos.1 and 2 of 2013
S.A.No.1045 of 2013:
1.C.Rukmani
2.Sridha ... Appellants
Vs.
1.Marathal
2.Muthusanjeev
3.Pushpa
4.Kannammal
5.Kumutha ... Respondents
PRAYER: Second Appeal filed under Section 100 of C.P.C., against the
judgment and decree dated 07.01.2013 made in A.S.No.12 of 2009 on the file
of the Subordinate Court, Tiruppur, confirming the judgment and decree
made in O.S.No.682 of 2004 on the file of District Munsif Court, Tiruppur.
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S.A.Nos.1045 of 2013 and 107 of 2014
For Appellants : Mr.K.Mohanamurali
For Respondents : Mr.N.S.Sivakumar for R3
Mr.K.Vignesh Karthik for R4 and R5
S.A.No.107 of 2014:
1.Kannammal
2.Kumutha ... Appellants
Vs.
1.Marathal
2.Rukmani
3.Muthu Sanjeev
4.Sridhar
5.Pushpa ... Respondents
PRAYER: Second Appeal filed under Section 100 of C.P.C., against the
judgment and decree dated 07.01.2013 made in A.S.No.1 of 2009 on the file
of the Subordinate District Court, Tiruppur, confirming the judgment and
decree dated 20.08.2008 made in O.S.No.682 of 2004 on the file of District
Munsif Court, Tiruppur.
For Appellants : Mr.K.Vignesh Karthick
For Respondents : Mr.K.Mohanamurali for R2 and R4
Mr.N.S.Sivakumar for R5
**********
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S.A.Nos.1045 of 2013 and 107 of 2014
JUDGMENT
These Second Appeals have been filed by defendants 3 and 5 and 7
and 8.
2. The 1st respondent/ plaintiff filed a suit before the Court below
seeking for the relief of partition and for allotment of 1/2 share in the suit
property. The plaintiff based her entire case on a registered Will dated
26.08.1996, marked as Ex.A3. The defence taken by the contesting
defendants is that the original owner Subbiah Gounder subsequently
executed three registered Wills dated 25.06.1999, marked as Exs.B8 to B10
and according to the defendants, by virtue of these Wills the earlier Will
dated 26.08.1996 was automatically cancelled. Therefore, according to the
defendants, the subsequent Will only gave a life estate to the plaintiff and her
mother and vested remainder was given to the sons of late Subbiah Gounder.
The contesting defendants therefore sought for the dismissal of the suit.
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S.A.Nos.1045 of 2013 and 107 of 2014
3. Both the Courts below on considering the facts and circumstances of
the case and after marshalling the oral and documentary evidence, found that
the subsequent Wills came to be executed under suspicious circumstances
and the same has not been properly proved by examining the witness and
hence both the Courts below concurrently upheld the Will dated 26.08.1996
and granted the relief as sought for by the plaintiff and passed a preliminary
decree. Aggrieved by the judgment of the trial Court, two appeals came to be
filed in A.S.No.1 of 2009 and A.S.No.l2 of 2009 by the defendants 3 and 5
and 7 and 8. Both the appeals were dismissed and the judgment of the trial
Court was confirmed. Aggrieved by the same, the present Second Appeals
have been filed before this Court.
4. The learned counsel appearing on behalf of the appellants submitted
that Ex.A3 Will was duly cancelled by Subbiah Gounder by virtue of
subsequent Wills which were marked as Ex.B8 to B10 and the same was not
properly appreciated by both the Courts below. In order to substantiate the
contention that the subsequent Will automatically cancelled the earlier Will,
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S.A.Nos.1045 of 2013 and 107 of 2014
the learned counsel relied upon Section 70 of the Indian Succession Act and
also relied upon the judgment of the Hon'ble Supreme Court in Mahesh
Kumar (Dead) by Lrs Vs. Vinod Kumar and others reported in 2012 (4)
SCC 387. The learned counsel further submitted that Ex.B8 to B10 are
registered Wills and that by itself gave an authenticity to those Wills and
hence those Wills ought not to have been rejected by merely citing some
suspicious circumstances. The learned counsel therefore submitted that the
judgments of both the Courts below warrants interference of this Court.
5. This Court carefully considered the submissions made by the learned
counsel for the appellants and also perused the findings of both the Courts
below.
6. On a careful reading of the judgments passed by both the Courts
below, it can be seen that Ex.A3 was analysed with the help of the evidence
of PW3 who was the attesting witness. Insofar as Ex.B8 to B10 are
concerned, the same was analysed with the evidence of DW3 to DW5. Both
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S.A.Nos.1045 of 2013 and 107 of 2014
the Courts below elaborately assessed each and every suspicious
circumstance and came to a categoric conclusion that Ex.B8 to B10 is
shrouded in mystery and it has not been proved beyond suspicion. The
appellate Court in fact took the pains of analysing each and every suspicious
circumstance and also took into consideration the evidence of PW3 and DW3
to DW5 and came to the conclusion that the earlier Will dated 26.08.1996
alone can be acted upon. The lower appellate Court analysed each and every
finding of the trial Court and proceeded to concur with the findings of the
trial Court.
7. In the considered view of this Court, the jurisdiction vested under
Section 100 of the Code of Civil Procedure cannot be used to re-appreciate
the evidence. At the best, this Court can only see if the finding rendered by
both the Courts below is perverse and is not in line with the evidence
available on record. This Court does not find any perversity in the findings
of both the Courts below. The findings are based on the evidence available
on record. In any event, this Court does not find any substantial question of
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law involved in both the Second Appeals.
8. In the result, both the Second Appeals are dismissed. Considering
the facts and circumstances of the case, there shall be no order as to costs.
Consequently, the connected miscellaneous petitions are closed.
24.02.2022
Index :Yes/No
Internet :Yes/No
Speaking order/ Non-Speaking order
dsa
To
1.The Subordinate Judge, Tiruppur.
2.The District Munsif, Tiruppur.
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S.A.Nos.1045 of 2013 and 107 of 2014
N.ANAND VENKATESH,J.
dsa
S.A.Nos.1045 of 2013 and 107 of 2014
24.02.2022
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