Jayakumar vs Saroja
2022 Latest Caselaw 4812 Mad

                                                            1

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 10.03.2022

                                                       CORAM:

                             THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH

                                                SA.No.1048 of 2015


                     Jayakumar
                                                              ....Appellant /Plaintiff/ Appellant
                                                           Vs.


                     Saroja                                     .. Respondent/Defendant /
                                                                            Respondent

                     Prayer:         Second Appeal filed under section 100 of the Code of Civil

                     Procedure to set aside the Judgement and decree in A.S.No.12 of 2014

                     on the file of the Additional District and Sessions Court, Hosur, dated

                     12.02.2015 in confirming the judgement and decree in O.S.No.32 of

                     2012 on the file of the Sub Court, Hosur dated 25.04.2014.

                                     For Appellant     :        Mr.M.Sathiavel
                                     For Respondent    :        Mr.V.Nicholas


                                                      JUDGMENT

The plaintiff is the appellant in this second

appeal.

https://www.mhc.tn.gov.in/judis

2. The case of the plaintiff is that the suit property

and other properties originally belonged to one Doorvasan

Chettiyar and he had three sons. He died intestate and the

property was inherited by his three sons. The suit property fell to

the share of one of his son Krishna Chetty. He died on 31.10.2006

leaving behind the plaintiff and the defendant as his legal heirs.

The further case of the plaintiff is that he had executed a Will on

26.05.2006 and as per this Will, the plaintiff is entitled to

succeed to the property. Accordingly, the plaintiff is enjoying the

property and is also paying the kist and other revenue

assessments in the name of his father. It is further stated that the

defendant was married and was provided adequately and she had

relinquished her share. The grievance of the plaintiff is that the

defendant unauthorizedly entered into the property with a

surveyor and forcibly attempted to take possession of the

property. Hence, the suit was filed claiming for the relief of

declaration of title and for permanent injunction.

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3. The case of the defendant is that the said

Krishna Chetty had executed a registered Will dated 16.06.2003

and thereby, he bequeathed the suit property in favour of his

grand children viz., the daughter of the defendant and the son of

the plaintiff. It is further stated that after the demise of Krishna

Chetty, the Will came into force and the patta was also mutated

in the names of the beneficiaries of the Will and a joint patta

was also issued in Patta No.51 and 56. The defendant therefore

sought for the dismissal of the suit.

4. Both the Courts below on considering the oral

and documentary evidence and the facts and circumstances of

the case, concurrently held against the plaintiff and dismissed

the suit. Aggrieved by the same, the plaintiff has filed the

Second Appeal.

5. Heard the learned counsel for the appellant and

this Court has carefully perused the materials available on record

and also the findings of both the Courts below.

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6. In the present case, both the sides have marked

the Will as Ex.A1 and B2 respectively. Ex.B2 Will was executed on

16.06.2003 and it was a registered Will. Ex.A1 Will was executed

on 26.05.2006 and the said Krishna Chetty died on 31.10.2006.

7. Both the Courts below carefully analyzed the

oral and documentary evidence and the circumstances

surrounding the execution of the Will. The Courts found that the

circumstances surrounding the Will marked as Ex.A1 created a

suspicion since unusually the signature of the propounder of the

Will was found in tamil and whereas, he always used to sign in

english. That apart, there was absolutely no mention about the

first Will marked as Ex.B2 in the Will that was executed and

marked as Ex.A1 and through this Will, the benefit was absolutely

given to the plaintiff and the benefit that was given through the

earlier Will to the grand children was taken away without

assigning any reasons. That apart, the propounder of the Will also

died within five months from the execution of Ex.A1 Will. Both

the Courts below have carefully analyzed the suspicious https://www.mhc.tn.gov.in/judis

circumstances surrounding the Ex.A1-Will and found that the said

Will is unenforceable. Ex.B2 will was held to be valid.

8. In the considered view of this Court, there is

absolutely no ground to interfere with the findings of both the

Courts below. This Court does not find any perversity in those

findings warranting interference. In any event, no substantial

question of law is involved in this second appeal.

9. In the result, this Second appeal is dismissed.

Considering the facts and circumstances of the case, there shall

be no order as to costs.

                                                                               10.03.2022

                     Speaking Order
                     Index      : Yes / No
                     Internet   : Yes / No
                     rka




https://www.mhc.tn.gov.in/judis





                                                                N.ANAND VENKATESH.,J

                                                                                   rka



                     To

1.The Additional District and Sessions Court, Hosur

2. The Sub Court, Hosur Copy To:-

The Section Officer VR Section, High Court Madras.

SA.No.1048 of 2015

10.03.2022

https://www.mhc.tn.gov.in/judis