Madras High Court
N.Natarajan vs Devirammal on 12 January, 2022
SA NOS.269, 270 & 271 OF 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12 / 01 / 2022
CORAM
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
SA NOS.269, 270 AND 271 OF 2014
AND MP NOS.1 AND 1 OF 2014
N.Natarajan ... Appellant in all SAs'
VS.
1.Devirammal
2.Nanjammal
3.Nagarathinam
4.Rukmani ... Respondents 1 - 4 in all SAs'
PRAYER: Second Appeals filed under Section 100 of the Civil
Procedure Code against the judgment and decree dated 01.08.2013 made
in A.S.Nos.124 of 2012, 125 of 2012 and Cross Appeal in A.S.No.125 of
2012 respectively, on the file of Principal District Judge, Erode,
reversing the judgment and decree dated 11.07.2012 made in O.S.Nos.82
of 2010, 15 of 2011 and O.S.No.15 of 2011 respectively, on the file of
Subordinate Judge, Sathyamangalam.
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SA NOS.269, 270 & 271 OF 2014
For Appellant : Mr.R.T.Doraisamy
(in all SAs')
For Respondent-1 : Mr.T.V.Krishnakumar
(in all SAs') for Mr.N.Chinnaraj
COMMON JUDGMENT
These Second Appeals arise out of a common judgment
passed in A.S.Nos.124 and 125 of 2012 and Cross Appeal in A.S.No.125
of 2012 respectively, dated 01.08.2013 on the file of Principal District
Judge, Erode.
2.The plaintiff in O.S.No.15 of 2011 and the fourth
defendant in O.S.No.82 of 2010 has preferred these Second Appeals.
3.The admitted facts are that originally, the Suit property
belong to one Kemba Thiruma Gowder. After his death, his son
Nanjunda Gowder inherited the properties and enjoyed the same. The
said Nanjunda Gowder married one Kittnammal and got one daughter
through her, namely, Devarammal, who is the plaintiff in O.S.No.82 of
2010. After the demise of his first wife Kittnammal, Nanjunda Gowder
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SA NOS.269, 270 & 271 OF 2014
married one Devirammal, as second wife. Through the second wife, he
got four children, namely, Nanjammal, Nagarathinam, Rukmani and
N.Natarajan, who are the defendants in O.S.No.82 of 2010. The
daughters are the defendants in both the suits. The present appellant was
arrayed as fourth defendant in O.S.No.82 of 2010 and plaintiff in
O.S.No.15 of 2011.
4.The said Devarammal filed a Suit in O.S.No.82 of 2010 for
partition claiming 1/5th share in the suit properties, denying the WILL
said to have been executed in favour of the fourth defendant, on
12.03.1984.
5.Thereafter, the son of Nanjunda Gowder, who born
through his second wife, namely N.Natarajan, filed a Suit in O.S.No.15
of 2011 for declaration of title on the basis of the registered WILL dated
12.03.1984 and for permanent injunction.
6.Since the subject matter in both the Suits are one and the
same, the Trial Court has conducted a joint trial and dismissed the prayer
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SA NOS.269, 270 & 271 OF 2014
sought for in O.S.No.82 of 2010 and the decreed the Suit in O.S.No.15 of
2011. In view of the succession, the entire suit property absolutely
belong to the plaintiff in O.S.No.15 of 2011 and also held that he is not
entitled to succession through WILL as it was not proved to be true, valid
and genuine.
7.Aggrieved over the judgment of the Trial Court, the
plaintiff in O.S.No.82 of 2010, the first defendant in O.S.No.15 of 2011,
filed two appeals. Aggrieved over the findings that the WILL is not a
genuine one, the present appellant has preferred a Cross Appeal. All
these appeals were heard together and by a common judgment, the First
Appellate Court has allowed the appeal preferred by Devarammal and
dismissed the Cross Appeal preferred by N.Natarajan. Thus, three
Second Appeals came to be filed by the said N.Natarajan.
8.Notice of admission was ordered by this Court on
10.03.2014. The respondents entered appearance. Both sides advanced
their arguments on the questions of law raised in the Memorandum of
Appeals.
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SA NOS.269, 270 & 271 OF 2014
9.Both the parties made a request on 23.08.2021, to take up
the matter for final hearing on the substantial issue "as to whether the
Courts below are correct in holding that the propounder has not proved
the voluntary execution of the WILL marked as Ex.B16 and the
testamentary capacity of the testator ignoring the fact that the WILL is
registered as per law".
10.Heard the submissions made on either side and perused
the materials available on record.
11.The facts are admitted. Now that it has to be analysed as
to whether the testator had executed the WILL in a sound and disposing
state of mind voluntarily or not? The plaintiff in O.S.No.82 of 2010
Devarammal would aver that the WILL is a fraudulent one and while
filing written statement in O.S.No.15 of 2011, she elaborately denied the
execution of the WILL and would contend that the WILL was not acted
upon. Further, the WILL raised suspicion over the sound and disposing
status of mind of the testator and that the testator was not conscious and
bed-ridden and therefore, it is not probable for him to execute a WILL
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SA NOS.269, 270 & 271 OF 2014
voluntarily and on the other hand, it is a fabricated document created by
his brother N.Natarajan fraudulently. In such circumstances, when a
suspicion is raised over the execution of the WILL, it is the burden of the
propounder of the WILL to dis-spell all suspicious circumstances.
12.In that view of the matter, the evidence of D.W.2, who
deposed in favour of the propounder attracts importance. D.W.2 was the
attesting witness to the WILL. During his cross examination, he would
depose that the testator Nanjunda Gowder was bed-ridden for two
months before his death. He visited him before one month of his death
and he was lying unconscious in his bed. He would depose that his son
N.Natarajan, would state that before the death of his father, they can
execute a WILL and he prepared a WILL from a document writer and
brought it. D.W.2 along with D.W.1 - Natarajan, the propounder of the
WILL and other attesting witness Thimmaiya Gowder took the testator in
a Car to the Registrar's office. He would further depose that at the time
when he was carried in the Car, he was not conscious. Though he was not
fully conscious, he was in a position to understand to an extent. The said
Natarajan took the hand of his father and put the thumb impression in
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SA NOS.269, 270 & 271 OF 2014
Ex.B16 - WILL for the purpose of getting clear impression. The said
Nanjunda Gowder affixed his thumb impression sitting inside the Car
and he has not entered the Registrar's Office. An official from the
Registrar's Office brought a register and took the thumb impression from
the Nanjunda Gowder who was in the Car. Natarajan paid all the fees and
charges for registration of the WILL. He has not seen as to when the
document writer signed in the WILL. Apart from D.W.2, none other than
Natarajan, Nanjunda Gowder, Thimmaiya Gowder, were present. He
signed as an attesting witness sitting inside the Car. After registration of
the WILL, the said Nanjunda Gowder died within twenty days. It is also
deposed by D.W.2 that the propounder of the WILL Natarajan had not
disclosed about the WILL at the time of death, funeral or obsequies to
anyone.
13.The above evidence of D.W.2 would categorically show
that the testator of the WILL was not fully conscious or he was semi
conscious. The testator has not provided information for preparing the
WILL. On the other hand, it was already prepared by the propounder of
the WILL. The thumb impression was obtained while the testator was
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SA NOS.269, 270 & 271 OF 2014
sitting inside the Car. Crucially, it was made by the propounder by
taking the hand of the testator and putting his thumb impression in the
document. The Sub-Registrar has not come to the Car and enquired as to
whether it is voluntarily executed or not. A thumb impression was
obtained by one of the Officials from the Sub-Registrar's Office in the
register while the testator was sitting inside the Car. These circumstances
clearly prove that the testator was not in a sound and disposing state of
mind to execute the WILL. The other attesting witness was not examined
before the Court. Both the Courts have elaborately discussed about the
valid execution of the WILL.
14.The learned counsel for the appellant would vehemently
contend that the WILL was admitted by the plaintiff Devarammal in her
evidence. A reading of the deposition made during the cross examination
of Devarammal reveals that she admitted the contents of the WILL which
was produced to her. The evidence of P.W.1 does not admit the valid
execution of the WILL, but the factual matrix for the WILL which was
shown to her. Only because she met the attesting and identifying
witnesses for arriving at a compromise, it would not automatically prove
that the WILL was validly executed.
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SA NOS.269, 270 & 271 OF 2014
15.It is well settled legal proposition that the propounder
shall dis-spell all the suspicious circumstances surrounding the WILL. In
that view of the matter, as concurrently held by the Courts below, the
appellant has not proved beyond doubt that the WILL was executed by
his father in a sound and disposing status of mind and that he has
voluntarily executed the same.
16.The other point raised by the learned counsel for the
appellant is that the Suit is barred by limitation. The First Appellate
Court has rightly discussed the issue. The revenue documents till 2009
were standing in the name of Nanjunda Gowder, the father of the parties.
It was not mutated after the execution of the WILL in the year 1984. In
that event, the co-owners shall be construed to be in joint possession and
one of the co-owners stood as a Trustee of the property and therefore, the
Suit is not barred by limitation. By not disclosing the WILL at the time of
death of the testator or during the subsequent rituals conducted or at any
time thereafter, it shall be construed that the WILL was not acted upon
and the finding of the First Appellate Court in this regard is based on
materials and based on legal evidence. Therefore, all the questions of law
are answered against the appellant.
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SA NOS.269, 270 & 271 OF 2014
17.In fine, all the Second Appeals are dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.
12 / 01 / 2022
Index : Yes/No
Internet : Yes/No
TK
https://www.mhc.tn.gov.in/judis
SA NOS.269, 270 & 271 OF 2014
To
1.The Principal District Judge
Erode.
2.The Subordinate Judge
Sathyamangalam.
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SA NOS.269, 270 & 271 OF 2014
M.GOVINDARAJ, J.
TK
SA NOS.269, 270 AND 271 OF 2014
12 / 01 / 2022
https://www.mhc.tn.gov.in/judis
