Madras High Court
D.Mani (Died) vs Saroja (Died) ... 1St on 24 April, 2023
S.A.No. 1597 of 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.04.2023
CORAM
THE HONOURABLE MR. JUSTICE V. LAKSHMINARAYANAN
S.A.No. 1597 of 2000
1. D.Mani (died) ... Appellant/1st Appellant/1st Defendant
2. K.Jayanthi
3. M.Dinakaran
4. M.Suseela ... Appellants/Appellants
Vs.
1. Saroja (died) ... 1st Respondent/Respondent/Plaintiff
2. Neelavathi ... 2nd Respondent/2nd Respondent/2nd Defendant
3. Kumar
4. Vijayasankar
5. Sampath
6. Gunasekar ... Respondents
PRAYER: This Second Appeal is filed under Section 100 of Civil
Procedure Code, against the Judgement and Decree dated 18.08.2000
https://www.mhc.tn.gov.in/judis 1
S.A.No. 1597 of 2005
passed in A.S.No. 53 of 1990 on the file of the Subordinate Judge, Vellore,
as confirmed in the Judgment and Decree dated 09.10.1990 in O.S.No.
198 of 1985 on the file of the Additional Appellate Court, Vellore.
For Appellants : Mr.R.Jagadeesan
for Mr.A.Abdul Wahab
For Respondents : No appearance
JUDGMENT
The appellant is the first defendant in the suit.
2. This Appeal arises out of the Judgment and Decree of the Court
of the Additional District Munsif at Vellore, dated 09.10.1990 in O.S.No.
198 of 1985 as confirmed by the learned Subordinate Judge at Vellore,
dated 18.08.2000 in A.S.No. 53 of 1990.
3. The parties are referred to as the rank in the suit.
4. The appellant was the first defendant. The plaintiff is his
maternal aunt Saroja. The relationship between the parties are not denied.
Saroja presented a suit for declaration of her title and for recovery of
S.A.No. 1597 of 2005
possession. The parties have admitted that the properties belong to one
Shanmugam, who passed away on 16.08.1978. Shanmugam was married
to one Maharani, who expired on 03.07.1982. The marriage did not
produce any surviving issues. Evidence shows a child was born to the
couple but expired in its infancy. According to the plaintiff, Shanmugam
died intestate and so did Maharani and that on the death of Shanmugam
and Maharani, the property, as per the Hindu Succession Act, would vest
with her and therefore, she claimed her right as a legal heir of Shanmugam.
5. The case of the defendant is that Shanmugam had executed a
Will on 13.08.1978 whereby he bequeathed the property in his favour.
According to him, Shanmugam executed the document, two days prior to
his admission, at CMC Hospital at Vellore and despite treatment having
been given, he passed away on 16.08.1978. The first defendant would
plead that he had been residing in the same property right from his birth.
In fact, he would further plead that Shanmugam, due to his acute sickness,
was not working for the last 10 years before his death and it was the first
defendant, who was taking care of him. He would further plead that on
account of the Will, he became the owner of the house property as well as
the vacant land abutting the property.
S.A.No. 1597 of 2005
6. It is pertinent to point out the Will does not give any schedule at
all and even assuming he deals with the house, there is nothing in the Will
to show that the vacant land fell to the share of the first defendant. Be that
as it may, on the strength of the Will on 28.09.1983, the first defendant
executed a sale deed in favour of the second defendant.
7. The learned trial Judge as well as the Lower Appellate Court,
after detailed examination of the evidence, before them and the documents
filed came to the conclusion that the Will is a fabricated one and therefore,
decreed the suit.
8. Aggrieved by these concurrent finding, the defendant is before
this Court. At the time of admission, the following substantial questions of
law were framed for consideration:-
“1) Whether the courts below are right
in rejecting the cogent evidence of the
attesting witnesses and the scribe in the
execution of the Will when absolutely no
reason was given for its rejection?;
S.A.No. 1597 of 2005
2) Whether the Courts below are right in
stating that the Will is an unnatural one,
especially when the testator's wife was
declared as lunatic and was living separately
from her husband for the last fifteen years?”
9. Pending the Appeal, Saroja had died and her legal heirs have
been brought on record. None represents the respondents.
Mr.R.Jagadeesan, learned counsel representing for Mr.A.Abdul Wahab, for
the appellants was heard at length.
10. The learned counsel would argue that cogent evidence had been
given by the attesting witness DW-3 and when it is read with the evidence
of DW-2, the scribe, the Courts below should come to an irresistible
conclusion that the Will had been proved and the decreeing of the suit is
erroneous. He would further state that the testator's wife had deserted him
and therefore, there is nothing unnatural in the testator not giving her any
properties.
S.A.No. 1597 of 2005
11. I have carefully considered the arguments made by the learned
counsel for the appellants. I have gone through the pleadings, evidence
and the documents.
12. I am not willing to go along with the learned counsel for the
appellants for the following reasons:
(1) Though the appellant has pleaded that he has been residing in the
same property along with Shanmugam and Maharani and that he had put
up superstructure, in which they had been residing, there is absolutely no
evidence which has been forthcoming to show that Shanmugam had
permitted the first defendant to reside with him. This looms large because
according to the first defendant since Shanmugam and Maharani did not
have any child, after the death of their only child, they brought him up as
their own. The trial Court as well as the Lower Appellate Court has taken
note of the fact that the first defendant has not produced the family ration
card or any electoral card or any other tangible documents to prove that
Mani, Shanmugam and Maharani had been residing together. Concocted
stories have been brought out in order to show that Shanmugam had
executed a document out of natural love and affection in favour of Mani.
Therefore, the first defence put up by the defendants fails.
S.A.No. 1597 of 2005
(2) Secondly and more importantly, the parties agreed that Maharani,
wife of Shanmugam was mentally challenged. It is but natural for a person,
who has a mentally challenged dependent, to make a provision for the said
person in a Will. Surprisingly in the Will that has been projected by the
first defendant, the testator seems to have been totally excluded her and no
reasons have been given for the same. Writing a Will necessarily
interferes with the natural line of succession. However, when the natural
line of succession is not preferred, the Court, sitting as a court of
conscience while dealing with a Will, should demand from the propounder
as to why no reasons have been given for exclusion of natural legal heir.
13. Further this is a case of shy Will. The Will did not surface
immediately after the death of Shanmugam. It did not surface even when
Shanmugam's brother-in-law had initiated proceedings before the District
Court for the purpose of appointing himself as a guardian for Maharani to
manage the suit property, which according to him fell to the share of
Maharani. It is after the publication is made in the said proceedings before
the District Court, has the Will been produced. The propounder has stated
one of the attesting witnesses, DW-3 came to him and said that he is in
S.A.No. 1597 of 2005
possession of the Will. DW-1 would plead ignorance of the Will at the
time, it was written. He would state in the original petition proceedings
before the District Court that he came to know about the Will only when a
paper publication was made in “The Daily Thanthi” with respect to those
proceedings. However, he would state in this proceedings that he came to
know about the Will soon after the funeral was performed for Shanmugam
and he had requested DW-3 to retain the Will and that he would collect it
at the appropriate time. The Courts below have concentrated on the
inherent contradictions in the evidence of DW-1 and DW-3, thereafter
have come to the conclusion, and in my view rightly, that the Will has been
fabricated. It is so unnatural that a person who does not have a right to the
property, if not for a Will, would request an utter stranger to the family to
retain the Will and that he will collect that an appropriate time.
14. I find that the evidence of the propounder is artificial. I am not
able to agree merely because DW-2 and DW-3 have spoken about the Will,
I have to accept the same. The suspicious circumstances surrounding the
Will also should have been explained to the satisfaction of the Court and
that not having been done, the plea on the Will has to fail. In other words,
S.A.No. 1597 of 2005
the substantial questions of law are answered against the appellants and in
favour of the respondents.
15. The Second Appeal is dismissed. The Judgment and Decree of
the Court of Subordinate Judge at Vellore in A.S.No. 53 of 1990 dated
18.08.2000 in confirming the Judgment and Decree in O.S.No. 198 of
1985 of the Additional District Munsif at Vellore, dated 09.10.1990 stands
confirmed. No costs.
24.04.2023
Index :Yes/No
Internet:Yes/No
vsg
To
1. Subordinate Court, Vellore.
2. Additional District Munsif, Vellore.
S.A.No. 1597 of 2005
V. LAKSHMINARAYANAN , J.
vsg
S.A.No. 1597 of 2000
24.04.2023
https://www.mhc.tn.gov.in/judis 10
