Madras High Court
K.Palaniammal vs K.Veluchamy on 25 March, 2022
S.A.No.770 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.03.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Second Appeal No.770 of 2016
and CMP No.14477 of 2016
K.Palaniammal ... Appellant
Vs.
K.Veluchamy ... Respondent
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree dated 08.01.2016, made in
AS No15 of 2014 on the file of the Principal District Court, Coimbatore
confirming the Judgment and Decree dated 08.10.2013 made in
O.S.No.1270 of 2010, on the file of III Additional Subordinate Judge,
Coimbatore.
For Appellant : Mr.R.Krisnna Prasad
for M/s.Sarvabhauman Associates
For Respondent : Mr.P.R. Bala Subramanian
1/8
https://www.mhc.tn.gov.in/judis
S.A.No.770 of 2016
JUDGMENT
The plaintiff is the appellant in the Second Appeal.
2. The case of the plaintiff is that the suit properties are the absolute
properties of her father Krishna Chetty, through Exs.A2 and A3. The said
Krishna Chetty died and thereafter the plaintiff is entitled for half share in
the suit properties. The further case of the plaintiff is that the defendant,
who is her brother, was refusing to give any share in the property. Hence
the suit came to be filed seeking for the relief of partition and for allotment
of half share in the suit property.
3. The defendant filed a written statement. Insofar as the
relationship between the parties and the fact that there were two Partition
Deeds in favour of Krishna Chetty is concerned, it was not disputed.
However, the defendant took a stand that his father Krishna Chetty and the
defendant entered into a Partition Deed dated 05.03.2003, marked as
Ex.B1 whereby the ‘A’ Schedule Property and Item I in the ‘B’ Schedule
Property was allotted in favour of the defendant. Even though Item II of
the ‘B’ Schedule Property was allotted in favour of the father under the
https://www.mhc.tn.gov.in/judis
S.A.No.770 of 2016
Partition Deed, this item of property was also bequeathed in favour of the
defendant through a Will marked as Ex.B10. Thereby the defendant was
claiming to be the absolute owner of the suit property after the demise of
his father and according to the defendant, the plaintiff had no right to
claim for any share in the suit properties. Accordingly, the defendant
sought for the dismissal of the suit.
4. Both the Courts below after considering the oral and
documentary evidence and also 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 present Second Appeal.
5. Heard Mr.R.Krisnna Prasad, learned counsel appearing for
M/s.Sarvabhauman Associates for the appellant and Mr.P.R.Bala
Subramanian, learned counsel appearing for the respondent. This Court
also carefully perused the materials available on record and the findings of
both the Courts below.
6. The learned counsel appearing for the appellant focused his
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S.A.No.770 of 2016
arguments on the suspicious circumstances surrounding the execution of
the Will and the learned counsel also questioned the so called Partition
Deed that was entered into by the defendant and the father. According to
the learned counsel for the appellant, the following were the suspicious
circumstances which were not taken into consideration by both the Courts
below:
a) The defendant who was the prepounder of the Will
had taken active participation in the execution of the document;
b) The father who normally puts his signature in the
document had affixed his thumb impression;
c) The health condition of the father was specifically
spoken to by D.W.3 and D.W.5 and it was found that his hands
were shaking and he was not in a proper state of mind;
d) The Partition Deed as well as the Will were executed
on the same day and registered ; and
e) No reason was assigned in the Will as to why no share
was given in favour of the plaintiff who was the daughter.
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S.A.No.770 of 2016
7. Both the Courts below have taken into consideration the
suspicious circumstances that were raised by the plaintiff/appellant and
held that the execution of the Will is not vitiated due to any suspicious
circumstances. In order to arrive at such a conclusion, it was held that the
plaintiff was married 50 years ago and she was living in the matrimonial
home. It was the defendant who was living with the father. Both the
Courts also took into consideration the fact that there was absolutely no
proof to show that the testator was not in a fit state of mind while
executing the document. Both the Courts below held that since the father
was facing a health condition whereby his hands were shivering, he had
affixed his thumb impression and therefore, there was sufficient reason as
to why he did not sign in the documents. That apart, the Courts below also
took into consideration the fact that the testator had died nearly after 1½
years from the date of execution of the Will. Insofar as the plea raised by
the plaintiff to the effect that no share was given under the Will and no
reasons were given for not allotting a share, both the Courts found that the
plaintiff was married 50 years before and she had already been provided
sufficiently and the father wanted to take care of his only son, who was the
defendant and accordingly, the non allotment of any share to the plaintiff
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S.A.No.770 of 2016
was not taken to be a suspicious circumstance.
8. Both the Courts below also took into consideration the evidence
of the witnesses and found that the plaintiff was not maintaining her father
and he was living only with the son and therefore, there was sufficient
reason for the father to have executed the Will in favour of the defendant.
Even otherwise, the plaintiff did not take any steps to examine any witness
in order to prove the health condition and the mental status of the father, if
really he was suffering from any serious ailment.
9. In the considered view of this Court, the suspicious
circumstances that were raised by the plaintiff has been considered by both
the Courts below and a finding has been rendered by taking into
consideration the oral and documentary evidence. Just because an
alternative view can be taken on the very same evidence, that does not
create a ground for this Court to interfere with the findings of the Courts
below in exercise of jurisdiction under Section 100 of the Code of Civil
Procedure. In any case this Court does not find any perversity in the
findings of both the Courts below. No substantial questions of law are
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S.A.No.770 of 2016
involved in the Second Appeal.
10. In the result, the Second Appeal is dismissed. Considering the
facts and circumstances of the case, there shall be no order as to costs.
Consequently, the connected miscellaneous petition is closed.
25.03.2022
Index : Yes/No
Internet : Yes/No
Speaking Order / Non Speaking Order
jv
To
1.The Principal District Court,
Coimbatore.
2.The III Additional Subordinate Judge,
Coimbatore.
3. The Section Officer
VR Section,
High Court Madras.
https://www.mhc.tn.gov.in/judis
S.A.No.770 of 2016
N. ANAND VENKATESH, J.
jv
Second Appeal No.770 of 2016
and CMP No.14477 of 2016
25.03.2022
https://www.mhc.tn.gov.in/judis
