Mariappan vs Saraswathi
2022 Latest Caselaw 6473 Mad

                                                                                     A.S.(MD)No.32 of 2016


                            BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   DATED : 30.03.2022

                                                         CORAM

                                  THE HONOURABLE MS.JUSTICE R.N.MANJULA

                                                 A.S.(MD)No.32 of 2016
                                                         and
                                               C.M.P.(MD)No.6132 of 2016
                1.Mariappan
                2.Pechiammal
                3.Saravana Selvam                                           ... Appellants
                                                            Vs.
                1.Saraswathi
                2.Rajeswari
                3.Mariappan
                4.Murugan
                5.Santhanaselvi
                6.Sumathi
                7.Arunkumar                                                 ... Respondents


                Prayer : Appeal Suit filed under Section 96 of Civil Procedure Code, against the
                judgment and decree dated 02.09.2014 passed in O.S.No.12 of 2013 on the file of
                the II Additional District Judge, Thoothukudi.


                                  For Appellants : Mr.R.J.Karthick,
                                                     For Mr.R.Subramanian
                                  For Respondents : Mr.S.Selva Aditya,
                                                     For Mr.G.Prabhu Rajadurai for R1 & R3.
                                                     No appearance for R2, R5, R6 & R7

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                                                                                   A.S.(MD)No.32 of 2016


                                                      JUDGMENT

This Appeal Suit has been preferred challenging the judgment and decree of the

learned II Additional District Judge, Thoothukudi, dated 02.09.2014 made in

O.S.No.12 of 2013.

2. The appellants are the defendants in the suit; the respondents/plaintiffs filed the

suit for partition of their half share in the suit property and for the relief of

declaration to declare the settlement deed executed by the second defendant in

favour of the third defendant as null and void and also for the consequential relief

of injunction restraining the third defendant from causing any encumbrance in

respect of first item of the suit property.

3.The case of the plaintiffs is that the suit property belongs to one Shanmugavel

and he was in enjoyment of the same. Shanmugavel diedleaving behind his two

sons namely, Dharmalingam and the first defendant/Mariappan; subsequent to the

death of Shanmugavel, both his sons were in possession and enjoyment of the

property; for convenient enjoyment, Dharmalingam was residing in the second

item of the suit property and the first defendant/Mariappan was residing in the first

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A.S.(MD)No.32 of 2016

item of the suit property; Dharmaligam also died subsequently; the plaintiffs are

the legal heirs of late.Dharmalingam; the second defendant is the wife of the first

defendant; the third defendant is the son of the first defendant; during the year

2005, misunderstanding arose between the parties and thereafter, the plaintiffs

demanded the defendants to partition the suit property; the defendants refused to

come forward to partition the suit property; however, in the month of March 2013,

the plaintiffs learnt that the second defendant executed a settlement deed in favour

of the third defendant on 12.10.2012; the said settlement deed will not bind the

interest of the plaintiffs; hence, the plaintiffs filed the suit for the afore mentioned

reliefs.

4. The defendants did not deny the fact that the suit property belonged to

Shanmugavel; there is no dispute with regard to the second item of the suit

property; it is claimed by the defendants that during the life time of Shanmugavel,

he executed a registered Will dated 13.01.1988 in favour of the second

defendant/Petchiammal with regard to the first item of the suit property; the said

Will came into effect after the death of Shanmugavel; subsequently, revenue

records got mutated in the name of the second defendant; the second defendant

had executed a settlement deed dated 12.10.2012 in favour of the third defendant;

since the second defendant had acquired title in respect of the first item of the suit

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A.S.(MD)No.32 of 2016

property by virtue of a Will in her favour, the settlement deed dated 12.10.2012

executed by her is legally valid; the plaintiffs were never in joint possession and

enjoyment over the first item of the suit property; hence, no relief of partition can

be claimed in respect of the first item of the suit property, since the third defendant

has title in respect of the first item of the suit property by virtue of the valid

settlement deed dated 12.10.2012, the suit should be dismissed in respect of first

item of the suit property.

5.On the basis of above pleadings, the learned trial Judge framed the following

issues:

“1.jgrpy; 1tJ mapl;l brhj;J rz;Kfnty;-f;F g{h;tPf ghj;jpag;gl;ljh?

2.3k; gpujpthjpf;F vGjpf; bfhLj;j brl;oy;bkz;l; Mtzk; thjpfis fl;Lg;gLj;jf; Toajh?

3.thjpfs; tHf;Fiuapy; nfhhpa[s;sgo jgrpy; brhj;ijg; bghWj;J ½ ghfk; thjpfSf;F fpilf;ff; Toajh?

4.thjpfs; tHf;Fiuapy; nfhhpa[s;s tpsk;g[if gupfhuk; kw;Wk; cWj;Jf; fl;lis ghpfhuk; fpilf;ff;Toajh?

5.thjpfSf;F fpilf;ff;Toa ,ju ghpfhuq;fs; vd;d?”

6.During the course of evidence, on the side of the plaintiffs, the third plaintiff

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A.S.(MD)No.32 of 2016

examined himself as P.W.1 and Exs.A1 to A3 were marked; on the side of the

defendants, the first and second defendants were examined themselves as D.W.1

and D.W.2 and Exs.B1 to B13 were marked.

7. At the conclusion of the trial, on considering the evidence available on record,

the learned trial Judge decreed the suit as prayed for and granted preliminary

decree of partition in respect of half share of the plaintiffs in both items of the suit

properties and also declared the settlement deed dated 12.10.2012 as null and void

and also granted a decree for permanent injunction against the third defendant

from encumbering the first item of the suit property. Aggrieved over that, the

defendants have preferred this Appeal Suit.

8. Mr.R.J.Karthick, learned counsel for the appellants submitted that the

respondents/plaintiffs did not prove before the trial Court that the first item of the

suit property is the ancestral property of Shanmugavel; even if it is ancestral

property of Shanmugavel, due to his separate enjoyment, that should be treated as

self-acquired property and Shanmugavel has got the right to deal with the same in

his personal capacity; the Will dated 13.01.1988 was executed in favour of the

second defendant, when Shanmugavel was in good state of mind and that has been

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A.S.(MD)No.32 of 2016

proved to be true and valid; but the learned trial Judge omitted to appreciate the

genuineness of the Will though it was executed within the knowledge of the

respondents/plaintiffs; when the mutation of the revenue records were effected in

the name of the second defendant, they remained silent and they did not raise any

objection; hence, the respondents/plaintiffs have no right to claim that the

settlement deed executed by the second defendant in favour of the third defendant

as null and void; since the second defendant has valid right of title in respect of

first item of the suit property, she has executed valid settlement deed; therefore, the

learned trial Judge ought to have dismissed the suit in respect of first item of the

suit property; hence, the Appeal Suit may be allowed and the suit is liable to be

dismissed.

9. Mr.S.Selva Aditya, learned counsel for the respondents submitted that even in

the settlement deed/Ex.A1 dated 12.10.2012, the character of the first item of the

suit property was mentioned as ancestral property of Shanmugavel, hence,

Shanmugavel did not have any right to execute a Will in favour of the second

defendant as alleged by the defendants; even the execution of the Will was not

proved in a manner known to law, the plaintiffs being the legal heirs of deceased

Dharmalingam, who is the son of Shanmugavel, they are having equal rights in the

suit property; hence, it is right for the learned trial Judge to decree the suit as

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A.S.(MD)No.32 of 2016

prayed for and it does not call for any interference.

10.The following points for consideration are relevant for the purpose of deciding

this Appeal Suit:-

“1.Whether the appellants proved the Will dated 13.01.1988 as true and valid?

2.Whether the second appellant has got right in respect of first item of the suit property to execute a settlement deed in favour of the third appellant? and

3.Whether the judgment and decree passed by the learned trial Judge is fair and proper?”

11.Though the suit has been filed for the relief of partition in respect of items Nos.

1 and 2 of the suit property, pleadings would show that there is no dispute with

regard to the second item of the suit property. The dispute is only with regard to

the first item of the suit property. The fact that both the items of the suit property

belonged to the original owner, Shanmugavel is not disputed. The fact that

Shanmugavel died intestate leaving behind two sons as his legal heirs is also not in

dispute. The second son of Shanmugavel, namely, Dharmalingam also died.

Subsequent to the death of Dharmalingam, his legal heirs filed the suit. According

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A.S.(MD)No.32 of 2016

to the contentions of the learned counsel for the appellants/defendants, during the

life of Shanmugavel, he executed a Will dated 13.01.1988 in favour of the second

defendant, who is the daughter-in-law of the deceased Shanmugavel.

Shanmugavel died on 27.10.1989. It is claimed by the appellants/defendants that

after the demise of Shanmugavel, the said Will came into force and hence the

second defendant is entitled to the second item of the suit property. The learned

counsel for the respondents/plaintiffs submitted that Shanmugavel has himself has

no right to execute a Will in respect of the suit property.

12. Though the appellants/defendant claimed that the first item of the suit property

is the self-acquired property of Shanmugavel, the respondents/plaintiffs could not

prove the contrary. Even if it is presumed that the first item of the suit property is

the self-acquired property of Shunmugavel, it has to be seen whether the Will by

Shanmugavel is true and valid. On the side of the appellants/defendants, the first

and second defendants examined themselves as D.W.1 and D.W.2. Even though

the second defendant claimed her title in respect of first item of the suit property

on the basis of the Will dated 13.01.1988, the Will was not proved in accordance

with Sections 68 and 69 of the Indian Evidence Act.

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A.S.(MD)No.32 of 2016

13. According to the learned counsel for the appellants/defendants, the Will had

two attestors. The first attestor is no more and the summon sent to the second

attestor was returned as not found and hence he can not prove the Will through

primary evidence. The learned counsel for the respondents/plaintiffs relied on the

decision of the Honourable Supreme Court reported in (2009) 1 SCC 354

(K.Laxmanan Vs. Thekkayil Padmini and Others) in support of his contention

that the Will has to be proved in accordance with Sections 68 and 69 of Indian

Evidence Act. In the said decision, it has been held as under:-

“22.So far as Section 68 of the Act is concerned, it categorically provides that a Will is required to be attested and therefore, it cannot be used as evidence until at least one of the attesting witnesses is called for the purpose of proving its execution provided such attesting witness is alive, and subject to the process of the court and capable of giving evidence.

23.In the present case the scribe and one of the attesting witnesses to the Will namely Vasu died before the date of examination of the witnesses. The second attesting witness namely Gopalan was also not in good physical condition inasmuch as neither was he able to speak nor was he able to move, the fact which is proved by the deposition of the doctor examined as DW 2. Consequently, as the execution of the Will cannot be proved by leading primary evidence, the propounder i.e. the appellant herein was required to lead secondary evidence in order to discharge his onus of proving the Will as held by this Court to be permissible in Daulat Ram v. Sodha [(2005) 1 SCC 40].”

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A.S.(MD)No.32 of 2016

14. It is a settled position of law that if the propounder of Will is not able to prove

the Will by examining the attestor, the attestation should be proved through the

person, who is conversant with the writing and signature of the attestor. One of

the attestors of the Will is none other than the father of the second defendant.

15. Even though the second defendant examined herself as D.W.2, she has not

stated anything about the alleged attestation made in the Will by her father. D.W.2

has stated that she came to know about the Will after two years of his father's

death. D.W.2 has further stated that she came to know about the Will after six

months of the filing of the suit. When the propounder of the Will herself came to

know about the Will after six months of the filing of the suit, it is not possible for

the plaintiffs to know about the Will. D.W.2 did not inform about the Will to the

plaintiffs, though they did not have any problem between themselves. Under such

circumstances, it is obligatory on the part of the appellants/defendants to prove the

genuineness of the Will beyond doubt. Apparently, the Will was not proved in

accordance with Sections 68 and 69 of the Indian Evidence Act. Even if the first

item of the suit property is taken as the self-acquired property of Shanmugavel,

without proving the genuineness of the Will, the second defendant herself cannot

derive any title in respect of the first item of the suit property. Without any valid

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A.S.(MD)No.32 of 2016

title, the second defendant cannot pass any title in favour of the third defendant by

way of executing any documents like the impugned settlement deed. Since the

title of the second defendant has not been established by proving the genuineness

of the Will, it is right for the learned trial Judge to declare that the subsequent

settlement deed dated 12.10.2012 executed in favour of the third defendant by the

first defendant as null and void.

16. Since it is proved that the suit property belonged to Shanmugavel, both the

plaintiffs and the defendants as his legal heirs are entitled to half share each.

However, the learned trial Judge had observed that the plaintiffs could not have

got the knowledge about the Will from the encumbrance certificate. The

encumbrance certificate will not normally reflect the Will and even without the aid

of encumbrance certificate, the evidence on record would sufficiently prove that

the plaintiffs did not have any knowledge about the Will and that the genuineness

of the Will was also not proved. In order to get the benefits of the Will, the

propounder has got the duty to prove before the Court that the testator was in a

sound disposing mind and the Will was executed in the presence of the attestors.

Since the appellants/defendants failed to prove this fundamental aspect about the

Will, no benefit can be claimed basing on the same. Thus the points are

answered against the Appellants.

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A.S.(MD)No.32 of 2016

17.In the result, the Appeal Suit is dismissed and the judgment and decree dated

02.09.2014 made in O.S.No.12 of 2013 by the learned II Additional District Judge,

Thoothukudi is confirmed. No costs. Consequently, connected miscellaneous

petition is closed.

30.03.2022 Index : Yes / No Internet : Yes/ No ias

To:

The II Additional District Court, Thoothukudi.

Copy to:

The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.

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A.S.(MD)No.32 of 2016

R.N.MANJULA, J.

ias

A.S.(MD)No.32 of 2016

30.03.2022 (2/2)

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