Madras High Court
Krishnan vs Nayagam on 3 January, 2022
S.A(MD)No.521 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.01.2022
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.521 of 2021
Krishnan ... Appellant/Appellant/Defendant
Vs.
Nayagam ... Respondent/Respondent/Plaintiff
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 15.11.2019 passed
in A.S.No.63 of 2016 on the file of the Principal Subordinate Court,
Srivilliputhur, confirming the judgment and decree dated 13.02.2015
passed in O.S.No.159 of 2009 on the file of the Additional District
Munsif Court, Srivilliputhur.
For Appellant : Mr.K.Guhan
for Mr.M.Saravana Kumar
For Respondent : Mr.S.Kumar
1/17
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S.A(MD)No.521 of 2021
JUDGMENT
The concurrent Judgments and decrees passed in O.S.No.159 of
2009 by the Additional District Munsif Court, Srivilliputhur and in
A.S.No.63 of 2016, on the file of the Principal Subordinate Court,
Srivilliputhur, are being challenged in the present Second Appeal.
2. The respondent/plaintiff has instituted a suit in O.S.No.159 of
2009 on the file of the trial Court for the relief of declaration and
recovery of possession, wherein, the present appellant has been shown
as defendant.
3. The case of the plaintiff is that on 11.09.1981, one
Mariappan's wife, Muthammal has purchased the suit property and on
their own income, they constructed a house in the year 2005. At that
time, they constructed two houses viz., one on the lower side and
another on the upper side. On 20.07.2006, Mariappan sold the lower
side house to one Subban's son Raman and the said Mariappan and
Muthamal were in possession and enjoyment of the upper side house.
The said Mariappan died on 16.02.2007 and Muthammal died on
01.09.2006 and the said Mariappan and Muthammal had no issues.
Karuppiah was the brother of the said Muthammal. The said
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Karuppaih's son was the plaintiff's husband Ravi. The said Muthammal
has no other legal heir than the plaintiff's husband. The said Ramar,
who purchased the property in the year 2006, sold the property on
19.11.2008 in favour of the plaintiff. When the plaintiff wished to
purchase the lower side house, the defendant also requested the said
Ramar to sell the property in favour of him, but the plaintiff purchased
the lower side of the house for a higher price and executed a sale
deed. Hence, the defendant got enmity with the plaintiff and her
husband. The house which is situated on the upper side was in a
possession of the plaintiff's husband and he executed a sale deed in
favour of the plaintiff. Hence, the plaintiff was in possession and
enjoyment of the lower side of the house also and the defendant has
no right over the suit property. When the defendant disturbed the
peaceful possession and enjoyment of the plaintiff, she gave a
complaint before the police station and the police have deposed that
they have to approach the competent civil Court. Hence, the plaintiff
originally filed a suit for permanent injunction and later on, an
amendment petition was filed seeking the relief of declaration and
recovery of possession stating that the defendant on 19.04.2012
encroached upon the property and evicted the plaintiff.
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4. The defendant had filed a written statement denying all the
averments made in the plaint and submitted that the plaintiff's father
Karuppiah was not the brother of Muthammal and admitted that the
said Mariappan and Muthammal had no issues and they were in
possession and enjoyment of the suit property. After the death of
Mariappan, one Muniammal, who was the daughter of Mariappan's
sister's daughter, was taking care of Muthammal and the said
Muthammal, wife of Mariappan, had executed a Will on 08.08.2008 in
favour of Muniammal. The said Muthammal died on 01.09.2008 and as
per the Will, the said Muniammal was in possession and enjoyment of
the suit property. He denied the statement made in the plaint that the
Karuppiah's son Ravi was in possession and enjoyment of the suit
property. Mariappan's own sister was also another Muthammal and
suppressing the fact, the plaintiff has filed the suit. As per the Will, the
said Muniammal was in possession and enjoyment of the suit property
and she sold the property in favour of the defendant on 18.12.2008
and he was in possession and enjoyment of the suit property. On
19.04.2012, the defendant has encroached upon the suit property was
denied and the claim for recovery of possession has been barred by
limitation and prayed for dismissal of the suit.
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S.A(MD)No.521 of 2021
5. Before the trial Court, on the side of the plaintiff, P.W.1 and
P.W.2 were examined and Exs.A1 to A18 were marked. On the side of
the defendant, D.W.1 to D.W.4 were examined and Exs.B.1 to B.6 were
marked.
6. On the basis of the rival pleadings made on either side, the
trial Court, after framing necessary issues and after evaluating both the
oral and documentary evidence, had decreed the suit.
7. Aggrieved by the Judgment and decree passed by the trial
Court, the defendant, as appellant, had filed an Appeal Suit in
A.S.No.63 of 2016. The first appellate Court, after hearing both sides
and upon reappraising the evidence available on record, had dismissed
the appeal and confirmed the Judgment and decree passed by the trial
Court.
8. Challenging the said concurrent Judgments and decrees
passed by the Courts below, the present Second Appeal has been
preferred at the instance of the defendant, as appellant.
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S.A(MD)No.521 of 2021
9. The learned counsel appearing for the appellant/defendant
would submit that the Courts below have failed to consider
Ex.A.3-sale deed and the same was executed by one Muthammal in
favour of Mariappan and the suit schedule property differs. The Courts
below have failed to consider that Mariappan and Muthammal have no
legal heirs. The Courts below have failed to consider that after the
demise of Muthammal's husband, one Muniammal, who is the sister's
daughter of the said Mariappan, was taking care the said Muthammal
and to that effect, the said Muthammal had executed a Will, dated
08.08.2008 in favour of the said Muniammal. After the demise of
Muthammal, the said Muniammal was in possession and enjoyment of
the suit property. The Courts below have failed to consider that the
defendant is the bonafide purchaser from Muniammal. The Courts
below have failed to consider that the plaintiff has not pleaded that the
said Muthammal died intestate. On 08.08.2008, the said Muthammal,
wife of Mariappan, had executed a Will in favour of Muthammal. The
Courts below have failed to consider Ex.B.1-Will.
10. The learned counsel appearing for the appellant/defendant
further submitted that the date of purchasing of the stamp papers was
not at all considered, as it is the common usage that if the stamp
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S.A(MD)No.521 of 2021
papers are not sold they will sell it on the subsequent dates which is
practically happening and the same was not considered by the trial
Court and small discrepancies and mistakes found in the Will ought not
to have been considered by the Courts below and totally the Courts
below have rejected the claim made by the defendant. As the plaintiff
has not proved the case that the said document is a forged one by
sending the admitted signature to the handwriting expert and that
being the case the Courts below have not weighed the said evidence as
the claim of the plaintiff is false has not been considered by the trial
Court and prayed for allowing the Second Appeal.
11. The learned counsel appearing for the respondent/plaintiff
would submit that both the Courts below have correctly decreed the
suit and prayed for dismissal of the Second Appeal.
12. Heard the learned counsel for the appellant and the learned
counsel for the respondent and also perused the records carefully.
13. It is the case of the plaintiff that on 11.09.1981, one
Mariappan's wife, Muthammal purchased the suit property and on their
own income, constructed a house in the year 2005. At that time, they
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constructed two houses viz., one on the lower side and another on the
upper side. On 20.07.2006, Mariappan sold the lower side house to
one Subban's son Raman and the said Mariappan and Muthamal was in
possession and enjoyment of the upper side. The said Mariappan died
on 16.02.2007 and Muthammal died on 01.09.2006 and the said
Mariappan and Muthammal had no issues. Karuppiah was the brother
of the said Muthammal. The said Karuppaih's son was the plaintiff's
husband Ravi. The said Muthammal has no other legal heir than the
plaintiff's husband. The said Ramar, who purchased the property in the
year 2006, sold the property on 19.11.2008 in favour of the plaintiff
and she was in possession and enjoyment of the suit property and the
defendant has no right over the suit property.
14. It is the case of the defendant that the said Mariappan and
Muthammal had no issues and they were in possession and enjoyment
of the suit property. After the death of Mariappan, one Muniammal,
who was the daughter of Mariappan's sister's daughter, was taking care
of Muthammal and the said Muthammal executed a Will on 08.08.2008
in favour of Muniammal. The said Muthammal died on 01.09.2008 and
as per the Will, the said Muniammal was in possession and enjoyment
of the suit property. He denied the statement made in the plaint that
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the Karuppiah's son Ravi was never in possession and enjoyment of the
suit property. Mariappan's own sister was Muthammal and suppressing
the fact, the plaintiff has filed the suit. As per the Will, the said
Muniammal was in possession and enjoyment of the suit property and
she sold the property in favour of the defendant on 18.12.2008 and he
was in possession and enjoyment of the suit property.
15. At the time of executing the Will, the said Muthammal was in
good health and state of mind and she had genuinely on her own will
and volition written the Will has to be proved by the defendant. On the
side of the defendant, Ex.B.1-Will was marked and one Subramanian,
who signed in the Will as witness, was examined as D.W.2, one
Radhakrishnan was examined as D.W.3 and one Rajendran, who
drafted the Will as an Advocate, was examined as D.W.4. D.W.2 in his
chief examination has stated that on 08.08.2008, the said Muthammal
in good state of mind had executed an unregistered Will and the said
Will was drafted by Rajendran-D.W.4 and after that, he read over the
same to the said Muthammal and then she signed the same in each
page in the presence of D.W.2 and D.W.3 and later on, D.W.2 also
signed in the same as a witness, was his deposition. The said
Radhakrishnan-P.W.3 was also examined. In his chief examination, he
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has stated that he was residing in Sethur Village and the said
Muthammal was known to him and on 08.08.2008, with good health
and state of mind, she executed an unregistered Will on that day which
was prepared by one Advocate Rajendran and only after reading the
same, she has affixed her left hand thumb impression and later on, she
has signed the same, but the Advocate who has drafted the said Will,
has deposed that Muthammal was taken care of by Mariappan's sister's
daughter Muniammal and then she executed a Will in favour of
Muniammal and he only drafted the same and she has affixed the left
hand thumb impression in all the pages and later on, D.W.2 and D.W.3,
who were signed as witnesses and accordingly, after everyone signed,
the Advocate, who had drafted the Will, has affixed the stamp in the
same.
16. On going through the materials available on record, it is seen
that the Will was executed on 08.08.2008 and the documents were
purchased on 05.08.2008 and D.W.2 in his cross-examination has
stated that he was not aware of the fact that on whose name the
document was purchased and when the document was purchased and
there was some discrepancy in the evidence of D.W.2. D.W.2 in his
cross-examination has stated that on 08.08.2008, on the date when
they tried to execute a sale deed only, the Will was also executed and
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there was a contradictory statement regarding the manner of execution
of the Will, which was also not a registered one. When contradictory
statements have been made by D.W.1, D.W.2 and D.W.3 regarding the
purchase of the stamp paper, the affixing of signature or the thumb
impression, the first Appellate Court had analysed all these aspects and
come to the conclusion that if there was a forged Will has been
executed by an Advocate, he need not execute the thumb impression
and they should have signed in the Will and the plaintiff has not proved
that the thumb impression was that of Muthammal and she has not
sought for sending the same to the handwriting expert or Forensic
Department to prove that the signature or thumb impression found in
the document do not belong to Muthammal. Surprisingly, the first
Appellate Court has come to the conclusion that the thumb impression
is that of the said Muthammal has been admitted by the first Appellate
Court and come to the conclusion that the same is a genuine one.
However, the first Appellate Court compared the evidence of D.W.1 and
D.W.2, wherein D.W.2 has admitted that Ex.A.4-sale deed and Ex.B.1-
Will were executed on the same day at the time of cross-examination
and it was a leading question and accordingly, the witness also agreed
the same and that will not prove whether the said document was a
forged one and the doubt cannot be raised by the plaintiff.
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17. When the first Appellate Court has accepted the document as
a genuine one and in the penultimate paragraph, the first Appellate
Court has raised a question that the defendant has not produced any
evidence to prove that the said Muthammal's husband Mariappan had
any sister as Muthammal and the same was not proved by any other
evidence, except the interested witnesses. Further, he has not
examined the said Muthammal, the sister of Mariappan and also not
examined any of the relatives of the said Muniammal. When he has not
proved that the said Muthammal was the sister of Mariappan and the
said Muthammal had executed a Will also creates a doubt and suspicion
in the circumstances on which the Will has been created. The said
Muthammal is residing at Sethur and Muniammal is residing at
Rajapalayam, which is 10 kms away and Muniammal came and stayed
with Muthammal was also not proved by her that she was taking care
of Muthammal. When Muthammal died only in Sethur and that being
the case, under what circumstances the said Muniammal has
bequeathed the property under the Will and there is a cloud on the Will
in suspicious circumstances and the same cannot be accepted as
genuine.
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18. The plaintiff has proved her right by examining the
community head as P.W.2, who had submitted that Mariappan and his
wife did not have any children and Muthammal husband's relatives
were not available and Muthammal and Karuppiah are brother and
sister and Karuppiah's son is the plaintiff's husband Ravi and in the
cross-examination, he has denied that Muthammal had no other legal
heir. Further, P.W.2, in his cross-examination, has denied the
suggestion that other than Karuppiah, there were no other brothers
and sisters like Muthammal, Petchi, Sundaram, Palani and Raman and
according to his knowledge, there was no such persons. Based on the
oral submission made by the community head, the same has been
accepted and the defendant had also raised a question that the said
Muthammal had Karuppiah and other brothers and a proof was given
by the plaintiff that there was a person known as Karuppiah, who is
brother of Muthammal, is available and in the absence of any other
evidence produced by the defendant to prove that Mariappan had a
sister and the sister's daughter was taking care of Muthammal. The
first Appellate Court has rightly come to the conclusion that when the
defendant failed to prove that they are the legal heirs of Mariappan and
it has been proved that the said Muthammal after the death of her
husband had inherited the property and her brother Karuppiah's son,
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who inherited the property, through the said rights the plaintiff was
given the property by way of a settlement by the said Ravi. The first
Appellate Court has declared that the suit property belongs to the
plaintiff and She has clearly proved her case on the basis of
preponderance of probabilities, the same should be analysed.
19. Ex.B.1 is a Will which has not been proved beyond doubt that
the same has been executed by Muthammal. As per the averment of
the defendant, if Muthammal has written the Will, the Will has to be
proved. When there is no proper and cogent evidence given by a
person, who has drafted the Will and the persons who have signed the
same as witnesses, the Courts below have clearly considered the same
and ignored Ex.B.1-Will. The Will need not be registered and it is only
optional, but the Will has to be proved by letting in appropriate
evidence that the same has been executed by the executor and the
contents must have been read out to the said persons and they should
have read out the same or understood the same and signed in the
same, but here in this case, the defendant was not in a position to say
where it was executed and there was contradiction in the evidence
given by the attesting witnesses. It is also seen that within a short
period, the said Muthammal had died. At one place, the defendant
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himself has admitted that the Will and the sale deed has been executed
in favour of the defendant on the very same day and later on, they
cannot turn around and state that the evidence has to be taken as a
whole and it is a leading question. When the defendant has filed the
Will, to substantiate his claim, it is his duty to prove the genuinity
through the Will and he cannot ask the plaintiff to disprove the Will. All
these are factual in nature and this Court need not indulge in the well
considered Judgments and Decrees passed by the Courts below. The
plaintiff had a better case than the defendant and the defendant who
was claiming right through the Will has not proved the genuineness of
the Will in a proper perspective. That being the case, the plaintiff has
made out a case and the defendant has failed to prove the same.
20. For the reasons aforesaid, this Court is of the considered
view that no substantial questions of law has been made out by the
appellant/plaintiff to interfere with the well considered judgment and
decree rendered by the Courts below and accordingly, the Second
Appeal fails and the same stands dismissed. No costs. Consequently,
connected Miscellaneous Petition is closed.
03.01.2022
Index : Yes/No
Internet : Yes/No
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S.A(MD)No.521 of 2021
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized for
official purposes, but,
ensuring that the copy of the
order that is presented is the
correct copy, shall be the
responsibility of the
advocate / litigant concerned.
To
1.The Additional District Munsif Court,
Srivilliputhur.
2.The Principal Subordinate Court,
Srivilliputhur.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.521 of 2021
V.BHAVANI SUBBAROYAN, J.
ps
Judgment made in
S.A(MD)No.521 of 2021
03.01.2022
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